Department of the Interior
Washington, July 2, 1912
Hon. John H. Stephens,
Chairman Committee on Indian Affairs, House of Representatives.
Sir: I have the honor to acknowledge receipt of a copy of H. R. 19123, entitled “A bill to reopen the rolls of the Choctaw-Chickasaw Tribe and to provide for the awarding the rights secured to certain persons by the fourteenth article of the treaty of Dancing Rabbit Creek, of date September 27, 1830,” and your letter of March 28, 1912, requesting report thereon for the information of the Committee on Indian Affairs of the House of Representatives.
Sections 1 and 2 of the bill, being closely related as to points covered, may be considered together with advantage. These sections read as follows:
That the Secretary of the Interior is directed to receive, at any time within six months after the passage of this act, the application of any person for enrollment to the rights of a citizen and member of the Choctaw-Chickasaw Tribe of Indians claiming an interest in the lands and funds of the Choctaw-Chickasaw Tribe by reason of being a descendant of a member of the Choctaw Tribe who received, or was entitled to receive, lands under the terms of Article XIV of the treaty of Dancing Rabbit Creek under date of September 27, 1830.
Sec. 2. That the Secretary of the Interior shall be vested with the power to determine the rights of said claimants upon such evidence as may be produced by the applicant without regard to any judgment or decision heretofore rendered by any court or Commission to the Five Civilized Tribes or the Department of the Interior, and without regard to any condition or disability heretofore Imposed by any net of Congress: Provided, That any relevant evidence admissible either in actions at law or in equity in the courts of the United States shall be received by the Secretary of the Interior as evidence in determining the rights of said applicants: Provided further. That any testimony received as evidence and appearing in the record in the case of the Choctaw Nation against the United States, No. 12442, in the Court of Claims, may, if relevant, be received in evidence.
In order to determine whether it will be advisable to require the department to undertake the work outlined in these sections, a review is necessary of the pertinent facts concerning the origin of the claims of the Mississippi Choctaws and the efforts heretofore made by the Government to adjudicate the rights of such persons.
These claims are based upon Article XIV of the treaty of September 27, 1830 (7 Stat, 333, 335), which reads as follows:’
Article XIV. Each Choctaw head of a family being desirous to remain and become n 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, and he or she shall thereupon be entitled to a reservation of one section of 040 acres of land, to be bounded by sectional lines of survey: in like manner shall be entitled to one-half that quantity for each unmarried child which is living with him over 10 years of age; and to a quarter section to such child as may be under 10 years of age, to adjoin the locution of the parent. 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 Improvement 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 to be entitled to any portion of the Choctaw annuity.
When the commissioners representing the United States attempted to negotiate the treaty of 1830 they encountered much opposition from many members of the tribe because of the reluctance of a large number of the citizens to give up the land which they had occupied for many years and to abandon the graves of their ancestors, as would be necessary in view of the removal of the tribe to lands west of the Mississippi River, as provided by the terms of the treaty. The principal purpose of the Government in negotiating this treaty was to induce the Indians to go West, and it appeared for a time that the efforts of the commissioners, for the reasons stated, would be fruitless. However, at the suggestion of one of their chiefs, Greenwood Leflore. Article XIV was inserted in the treaty. By the terms of this article the Indians were allowed to elect whether they would remain in Mississippi or remove west. Finding that they were to have this privilege the opposition to the treaty vanished, and the negotiations were completed to the satisfaction of the Government.
Pursuant to the terms of the treaty, a large number of Choctaws were transferred to the country west of the Mississippi, later known as Indian Territory. These Choctaws and their descendants now constitute the main body of what is known as the Choctaw Nation. The removal of the people was effected by the United States at various times by contractors who conducted the several migrations.
There were a large number of citizens, however, who made application to the United States Indian agent located in Mississippi for registration under Article XIV, quoted above. Although a period of six months, beginning with September 27, 1830, was allowed for the Indians to make known their wishes, no provision was made apparently for the receipt of their applications until the following year. On May 21, 1831, the Office of Indian Affairs, then under the Department of War, forwarded to Col. William Ward, the local Indian agent, a copy of the Choctaw treaty as ratified by Congress, with instructions, which read in part as follows:
You will be careful in keeping a register of the reservations taken under the fourteenth article of the treaty: a fair copy of which to be made, duly certified, and transmitted for the information of the department.
Many complaints appear in the records of the Indian Office concerning the conduct of Col. Ward in performing the duty devolving upon him under these instructions. Various official reports show that he was oftentimes intoxicated when the Indians applied to him for their reservations; that he was harsh and abusive in his treatment of them; and that after making a few registrations arbitrarily refused to receive any more applications and drove the Indians from his presence. The register which he prepared bore his certificate of August 24, 1831. It shows that the first application was registered April 18, 1831, and the last August 23, 1831. The names of only 71 persons appear upon this register. This number represents only a small portion of the persons who attempted to take advantage of the provisions of said Article XIV. The whole number of heads of families who received land was 143.
Ward’s conduct was so plainly contrary to the provisions of the treaty that Congress subsequently made provision by acts passed in 1837 and 1842 for commissions to investigate the claims of Indians who alleged their applications were refused. It appears from the decision of the Supreme Court in the case of the Choctaw Nation v. The United States (110 U. S., 1) that 1,346 Choctaw heads of families complied with or attempted to comply with the provisions of the treaty, and that as late as 1838 there were 5,000 Choc-taws still residing in the State of Mississippi.
The persons found entitled by these commissions were awarded scrip in lieu of the land which should have been allotted them under Article XIV of the treaty of 1830. One-half of this scrip was delivered to the applicants while residing east of the Mississippi. The other half was withheld until such time as they should remove to the lands west of the Mississippi, or at least until they should actually embark for such removal. This scrip gave the applicants the right to enter public lands in certain Southern States; later the portion of the scrip not delivered was commuted by a money payment.
The great majority of the fourteenth-article claimants remained in Mississippi. Some of them, however, drifted into neighboring States, and others finally made their way west and joined the main body of the tribe in Indian Territory. It should be noted in this connection that by various acts the Choctaw Council recognized the right of the absentee Mississippi Choctaws to remove to the nation and actually invited thorn to do so.
Those who removed to the Indian Territory were allowed to settle upon the lands of the tribe, and some of them were recognized and enrolled by the tribal authorities, either by acts of the council or decrees of the tribal courts. A number of them, however, appear to have enjoyed the substantial benefits of Choctaw citizenship, but without establishing by any legal procedure their right to enrollment.
The Commission to the Five Civilized Tribes, having been created for the purpose of negotiating with those, tribes plans looking to the allotment of their lands and the breaking up of the tribal governments, rendered a report to Congress under date of January 28, 1808, setting forth what the commission deemed to be the rights of the Mississippi Choctaws in the lands occupied by the main body of the tribe in Indian Territory. This report appears on page 10 of the printed report of the Commission to the Five Civilized Tribes for the year 1898. After reviewing the history of the Mississippi Choctaws and certain laws relating to them, the commission stated its conclusion as follows:
It follows, therefore, from this reasoning, as well as from the historical review already recited and the nature of the title itself, as well as all stipulations concerning it in the treaties between the United States and the Choctaw Nation, that to avail himself of the “privileges of a Choctaw citizen” any person claiming to be a descendant of those Choctaws who were provided for In the fourteenth article of the treaty of 1830 must first show the fact that he is such descendant and has in good faith joined his brethren in the Territory with the intent to become one of the citizens of the nation. Having done so, such person has a right to be enrolled as a Choctaw citizen and to claim all the privileges of such a citizen, except to a share in the annuities. And that otherwise he can not claim as a right the “privilege of a Choctaw citizen.”
To the claim as thus defined the Choctaw Nation has always acceded, and 1ms manifested in many ways its willingness to take into its citizenship any one or all of the Mississippi Choctaws who would leave their residence and citizenship in that State and join in good faith their brethren in the Territory, with participation in all the privileges of such citizenship, save only a share In their annuities, for which an equivalent has been given in the grant of land and citizenship in Mississippi.
As a result of the report of the Commission to the Five Civilized Tribes the following paragraph was inserted in section 21 of the act of, June 28, 1898 (30 Stat., 495):
And said commission shall have authority to determine the identity of Choctaw Indians claiming rights in the Choctaw lauds under Article XIV of the treaty between the United States and the Choctaw Nation concluded September 27, 1830, and to that end may administer oaths, examine witnesses, and perform all other nets necessary thereto, and make report to the Secretary of the Interior.
It will be observed that this provision of law authorized only the identification of Mississippi Choctaws, and that it did not contain authority for their final enrollment or for the apportionment to them of any share of the lands or money of the Choctaw and Chickasaw Nations. The reports of the Commission to the Five Civilized Tribes for several years following this legislation show that the work of ascertaining the identity of the Mississippi Choctaws was one of considerable magnitude and complicated by many difficulties, principal among which was the inability of the Mississippi Choctaws to look after their own interests. Many of the full bloods were found to be poor and ignorant. They were suspicious of the commission and the Government, and it proved necessary to send interpreters to their homes. Even then it was impossible in many cases to get the history of themselves and their ancestors with any degree of certainty.
In its annual report for the year 1901, at page 21, the Commission to the Five Civilized Tribes commented upon the character of the task of identifying the Mississippi Choctaws, stating that to require a strict compliance with the fourteenth article of the treaty of 1830 on the part of ignorant full-blood Indians in the State of Mississippi would produce but little, if any, result favorable to them.
There was also among the applicants (who came from various sections of the country) a “great army of apparent whites and Negroes.”
The work of the commission as to Mississippi Choctaws prior to the agreement of 1902 is shown by the table, which follows:
Mississippi Choctaw Applications
|Number of Applications heard||Number of Persons included in such applications|
|Up to and inclusive of June 30,1900||481||1,665|
|At Muskogee, Ind. T., from July 1, 1900, to Nov. 30,1900, inclusive||641||2,098|
|At Hattiesburg. Miss., Dec. 17 to Dec. 22, 1900, inclusive||93||355|
|At Atoka, Ind. T., from Jan. 2 to June 30,1901, inclusive||636||1,825|
|At Meridian. Miss., from Apr. 1 to June 30. 1001, inclusive||788||3,002|
|At Philadelphia. Neshoba County, Miss., from Apr. 29 lo May 4, 1901. inclusive.||76||229|
|At Carthage, Leake County, Miss., from May 6 to May 11, 1901. inclusive||56||203|
|At Decatur, Newton County, Miss., from May 13 to May 18, 1901, inclusive||33||101|
|Heard at Atoka, Ind. T., from July I, 1901, to Oct. 31. 1901, inclusive||699||2,192|
|Heard at the general office at Muskogee from Nov. 1,1901, to June 30,1902, inclusive.||1,320||4,503|
|Heard at Meridian, Miss., from July 1, 1901, to Oct. 10, 1901, inclusive.||415||1,393|
|Heard in field. State of Mississippi, from Oct. 11, 1901. to Jan. 14,1902, inclusive.||175||464|
|Heard at Meridian, Miss., from Jan. 15 to Feb. 17, 1902, inclusive||216||715|
|Heard in field, State of Mississippi, from Feb. 21 to Apr. 13,1902, inclusive||161||464|
|Heard at Meridian, Miss., from Apr. 14 to Apr. 30. 1902, inclusive||170||584|
In adjudicating these cases under the act of June 28, 1898, the question determined in each instance was whether the applicant or any of his ancestors complied or attempted to comply with Article XIV of the treaty of 1880. The applicants were not held to the rigid requirement that they must prove descent from an ancestor who actually received a patent to lands in Mississippi under said article. The rule adopted was sufficiently broad to permit of the identification of persons whose ancestors were awarded scrip in lieu of patents. The rights of the applicants were also considered where their allegations were confined only to an attempted compliance on the j>art of their ancestors with Article XIV. It should be stated, however, in this connection, that the applicants as a rule were unable to prove, as a matter of fact, their descent from any person who received or was entitled to receive the benefits of said article. A few persons were identified as descendants of patentees, but in a great majority of the cases the applicants either had no right whatever to identification or were so ignorant of their family history that they were wholly unable to sustain their claim of right.
The commissioner to the Five Civilized Tribes stated in his report for the year ended June 30, 1906, that it became apparent that the ignorant full blood, for whom Congress had intended to provide, had no record of his ancestry and could not prove his rights tinder the law and if required to do so would fail to receive the benefits of the legislation. Accordingly, in order that this might not happen, the following provision was embodied in the act of July 1, 1902 (sec. 41, 32 Stat., 641):
The application of no person for identification as a Mississippi Choctaw shall he received by said commission after six months subsequent to the date of the final ratification of this agreement, and in the disposition of such applications all full-blood Mississippi Choctaw Indians and the descendants of any Mississippi Choctaw Indians, whether of full or mixed blood, who receive a patent to land under the said fourteenth article of said treaty of 1830 who had not moved to and made bona fide settlement in the Choctaw- Chickasaw country prior to June 28, 1898, shall be deemed to be Mississippi Choctaws, entitled to benefits under Article XIV of the said treaty of September 27, 1830, and to identification as such by said commission, but this direction or provision shall be deemed to be only a rule of evidence and shall not be invoked by or operate to the advantage of any applicant who Is not a Mississippi Choctaw of the full blood, or who is not the descendant of a Mississippi Choctaw who received a patent to land under said treaty, or who is otherwise barred from the right of citizenship in the Choctaw Nation.
Under this act it will be observed, first, that the right to make applications was given for a period of six months-that is to say, for six months following September 25, 1902; second, that descendants of actual beneficiaries under Article XIV, irrespective of their degree of Indian blood, were to be recognized as Mississippi Choctaws; and, third, that a rule of evidence was prescribed, to be accepted in lieu of proof of ancestry, according any full blood the rights of a Mississippi Choctaw.
In the administration of this act, a question arose as to whether, in case of the identification of a full-blood parent as a Mississippi Choctaw, the decision in his favor would inure to the benefit of children born to him of mixed Indian blood. An example of this kind is to be found in the case of the family of Calvin McMillan. (M. C. R-, 4215.) The census card in this case shows that the wife only, Mollie McMillan, was identified. In this family there were 11 members, all of whom were alleged to be full-blood Indians but only one of whom was identified.
By letter of March 17, 1903, prepared under supervision of Mr. Van Devanter, then Assistant Attorney General, the Secretary of the Interior held that the mixed-blood children of full bloods were entitled to identification under said section 41. This decision was overruled, however, by the opinion of the Attorney General of June 10, 1903, wherein he held that the rights conferred upon such Mississippi Choctaws were in the nature of gifts, and therefore that the act should be strictly construed to the exclusion of all except full bloods where Indian blood was the only evidence relied upon.
A second question, which arose, was as to whether, under said section 41, persons of mixed blood claiming identification through proof of ancestry were required to establish their descent from an actual patentee or might also submit proof of descent from persons who attempted to comply with the treaty. The view was adopted that it was not intended by the agreement to disturb the rule theretofore followed by the Commission to the Five Civilized Tribes permitting applicants to submit proof of their descent from persons entitled to the benefits of Article XIV who did not receive patents thereunder. However, as before stated, only very few persons of mixed blood were able to furnish the necessary facts to establish their ancestry.
Following the agreement of 1902 came the acts of March 3, 1905, and April 26, 1906, authorizing the enrollment of new-born citizens of the Choctaw and Chickasaw tribes. Under these acts a number of children whose parents had been found entitled to enrollment by the Secretary of the Interior were added to the final rolls of the Choctaw Nation.
The term “identification” as used in connection with the Mississippi Choctaw work, refers to the preliminary decision of the Secretary of the Interior holding applicants to be entitled to the benefits growing out of Article XIV of the treaty of 1830 and the, later acts looking to their removal to the Indian Territory. However, the identification of an applicant was not in any case a guaranty that he would ultimately succeed to the benefits of Choctaw citizenship. By the terms of section 41 of the act of July 1, 1902 (32 Stat,, 641), ” identified ” Mississippi Choctaws were allowed six months after the date of their identification to remove to the Choctaw-Chickasaw country and make settlement there. If they failed to remove, they lost the benefits of their identification.
It was further provided by the same section that upon proof of their settlement in the Choctaw Nation, which proof was to be submitted within one year after the date of their identification, they should be “enrolled” by the Commission to the Five Civilized Tribes as Mississippi Choctaws entitled to allotment, as provided for other citizens of the tribes, subject to special provisions relating to Mississippi Choctaws, such enrollment to be final when approved by the Secretary of the Interior.
By section 42 of the same act it was provided that when any Mississippi Choctaw had in good faith continuously resided upon the lands of the Choctaw and Chickasaw country for a period of three years, he should “upon due proof of such continuous bona fide residence,” receive a patent for his lands. Section 44 of the same act also provided that if within four years after enrollment any Mississippi Choctaw, or his heirs or representatives in case of his death, failed to make proof of continuous bona fide residence for the period so prescribed, or up to the time of the death of such Mississippi Choctaw, in case of his death after enrollment, he and his heirs and representatives, if he be dead, should be deemed to have acquired no interest in the land set apart to him and the same should be, sold at public auction for cash.
These requirements made it impossible for many ignorant and indigent full bloods to take advantage of the preliminary decisions of the commission and of the department identifying them. It is true that some effort was made by the Government to assist such persons in removing to the Indian Territory. The Eleventh Annual Report of the Commission to the Five Civilized Tribes, the same being for the fiscal year ending June 30, 1904, contains on page 19 a statement by the commission upon this point. This statement is to the effect that those identified as Mississippi Choctaws were chiefly indigent full bloods who formerly resided in Mississippi and were without means of removing to Indian Territory, and that Congress, in order that they might receive the benefits of identification, appropriated $20,000 to be used in defraying expenses incident to their removal. The expenditure of this appropriation was placed under the direction of the commission, and on July 24, 1903, a special agent was designated to undertake the work. Circulars setting forth the purpose of the Government were distributed in the full-blood settlements in Mississippi, Alabama, and Louisiana, and the special agent of the Government proceeded to Meridian for the purpose of mobilizing those of the Indians who desired to avail themselves of the aid offered by the Government. August 13, 1903, a special train carrying 264 full bloods arrived at Atoka in the Indian Territory. Arrangements had been made, for their subsistence at a camp 3 miles south or Atoka until such time as they could be placed upon their respective allotments. Twenty-six additional identified full-blood Mississippi Choctaws were removed on October 9, 1903, to Fort Towson, making a total of 290 transported under the direction of the commission. The entire appropriation was expended in the removal of these Indians and for their subsistence after removal.
The number transported by the Government (290) was only a small portion of the number identified as Mississippi Choctaws by the commission under the acts of June 28, 1898, and July 1, 1902 said number being 2,534.
Arrangements were also made by private parties for the transportation of Mississippi Choctaws. By reason of alleged expenditures in connection with the removal of such persons, suit was subsequently authorized by Congress to be instituted in the Court of Claims, and all Mississippi Choctaw lands are now held by the allottees under the cloud of an alleged lien which the claimants contend attached to such lands under the act giving the court jurisdiction, it being further contended that the lien extends also to the funds in the Treasury of the United States to the credit of such Mississippi Choctaws.
Under the laws of Congress the contracts looking to the sale or encumbrance in any way of Mississippi Choctaw lands prior to allotment were made invalid, with the result that it was impossible to provide such persons in advance with a fund to meet their expenses, even with the approval of the department.
The report of the Commissioner to the Five Civilized Tribes for the year ending June 30, 1907, shows, on page 12, that 24,634 persons applied to the Commission to the Five Civilized Tribes for identification as Mississippi Choctaws under the acts of June 28, 1898 and July 1, 1902; that of this number 2,534 were identified as Mississippi Choctaws and that, of the number so identified 1,072 persons failed to remove to the Indian Territory and submit proof of their removal and settlement within the time required by law. In this connection the commissioner stated that several reasons might be given for the failure of the identified persons to take advantage of their opportunity to submit proof of such removal and settlement: that many of them did not appreciate the value of allotments in the Choctaw-Chickasaw country; that few Mississippi Choctaws made more than a bare living in their former homes and hence had no means for transportation; that some who were transported by individuals became sick under ill-treatment and died the first winter; and that those who survived advised their friends and relatives remaining in Mississippi and Alabama of their experience, which discouraged them from making an attempt at removing.
It further appears from this report that under the newborn acts of March 3, 1905, and April 26, 1906, applications were made for the enrollment of 372 children of Mississippi Choctaws; that 198 of such children were enrolled and the applications of 174 rejected or dismissed.
The final results, as shown on page 13 of said report, were as follows:
Enrollment of Mississippi Choctaws.
|Enrolled under acts of June 28, 1898, and July 1, 1902||1,415|
|Enrolled under act of Mar. 3, 1905||11|
|Enrolled under act of Apr. 26, 1906||187|
I wish to refer in this connection to my letter of April 22, 1912, relating to the general subject of enrollment, wherein I pointed out under the heading of “Class III” that there were approximately 10 cases where families of Mississippi Choctaws were identified by the department within the last six months prior to March 4, 1907-some of whom were identified within the last few days prior to said date- and that they were consequently deprived of the usual period of time allowed other Mississippi Choctaws under the agreement of 1902 for removal to the Choctaw-Chickasaw country. These 10 families are in a class by themselves, because, notwithstanding formal adjudication of their rights, they were prevented by the abrupt closing of the enrollment work from taking advantage of the decisions, which had been rendered in their favor.
I am advised that if the work of reinvestigating and readjudicating the claims of Mississippi Choctaws be undertaken along the broad lines outlined in the bill introduced by Mr. Harrison, the work can not be accomplished within the time prescribed therein; that if the applicants are required to establish that they or some one of their ancestors were beneficiaries under Article XIV of the treaty of 1830, a vast amount of evidence will necessarily have to be taken covering the family history of the applicants for more, than 80 years; and that this work would be a repetition of work which has already been accomplished and in the great majority of cases would be of no benefit whatever to the applicants. Experience has shown that in those cases where there would seem to be the most merit, judging by the physical appearance of the applicants, such applicants were least able to establish the facts concerning their ancestry. The great difficulty, which such persons encounter, is due to their frequent change of residence, the breaking up of family ties, and the substitution of English for Indian names.
If Congress shall be of the opinion that any legislation whatever is needed for the relief of Mississippi Choctaws, either at the expense of the United States or the Choctaw and Chickasaw Nations, the meritorious cases, with few exceptions, can be selected from existing records of this department now in the custody of the Commissioner to the Five Civilized Tribes, at Muskogee. Okla. As to the 10 families referred to above, it is unnecessary for me to discuss the matter of their enrollment herein, inasmuch as I have reported fully as to them in said report of April 22, 1912. With respect to the 1,070 persons who were identified as Mississippi Choctaws, but who failed to prove the facts of removal and settlement in the Choctaw and Chickasaw country, it may be said that irrespective of their unfortunate condition of poverty and ignorance, there is grave question whether there is any just ground, legal or equitable, for holding the Choctaw and Chickasaw Nations responsible for their failure to comply with the law. In fact, it may be urged by the tribes that responsibility, if any rested upon the United States instead. As to the mixed-blood children of full-blood parents who were identified as Mississippi Choctaws under the rule of evidence prescribed by section 41 of the act of July 1, 1902, which excused them from proof of ancestry, it would seem that the propriety of further action looking to their enrollment would be dependent largely upon whether the benefits of the agreement of 1902 were in the nature of gifts to the full bloods.
Section 3 of the bill provides that claimants may be represented by attorneys, whose fees shall be fixed in accordance with any contract now or hereafter made between the applicant and said attorney, and that such contract shall govern the amount of such fee, provided that the Secretary of the Interior may limit the percentage of compensation in each case and that the contract shall be enforceable for no greater sum than that fixed by the Secretary of the Interior.
In connection with this section, it may be said that the records of the department show the Mississippi Choctaws have been to an unusual extent the victims of numerous extortionate contracts, which were, doubtless obtained in some instances through misrepresentation of facts and in some cases by persons falsely representing themselves to be Government agents. I am therefore of opinion that if any legislation whatever be enacted for the purposes indicated by the bill, conditions even more stringent than those set forth in section 3 should be provided with reference to such contracts. Persons desiring to negotiate with the Indians should be known to be of reputable character. They should be required to obtain permission first from the Department of the Interior to negotiate with the claimants. They should be limited by law as to the maximum amount to be paid under such contracts and a penalty should be provided for taking any contract or attempting to enforce any agreement made in violation of law.
Section 4 of the bill provides that the Secretary of the Interior shall have prepared and make a schedule or roll of all persons entitled under the act, within eight months after its passage, and within said eight months award them the full rights of citizens and members of the Choctaw-Chickasaw Tribe. It seems almost needless to say that if the investigation and reexamination be made in the wholesale fashion proposed by the bill, it would be, as indicated in a previous connection, a physical impossibility to accomplish the work within this time.
Sections 5 and 6 of the bill would appear to be appropriate provisions in the event that such a bill should be enacted. Section 7 provides among other things that depositions may be taken in support of said applications in any place in the United States upon notice to the Attorney General and the Secretary of the Interior, and that the procedure as to notice and taking of depositions shall be as in ordinary cases before the United States courts. If this section should be enacted, it would be absolutely impossible for the representatives of the tribes to be represented at all hearings, and to subject the witnesses to cross-examination and furnish the rebuttal evidence which would be necessary to a proper examination of the cases.
The latter part of section 7 provides that the expense of taking depositions on the part of claimants shall be paid by the applicants in the first instance, but shall be taxed as costs in each case where the applicant is successful and said costs shall be charged to the funds of said tribe in the United States Treasury. If this clause be enacted, a burden will be placed upon the tribes not imposed upon them with respect to many thousands of unsuccessful applicants heretofore denied enrollment.
Section 8 provides a time limit of six months for the submission of applications. If the bill be enacted, some such provision as this should be included therein, although it is questionable whether Indians of the full blood as well as those of mixed blood whose habits, customs, and language are substantially those of the full bloods should be so limited without any provision whatever for some one to act as their representative under authority of the Government.
Section 9 of the bill provides that the tribal organization of the Choctaw-Chickasaw Tribe shall be abolished and the title to all tribal lands and moneys yet undistributed be vested in the United States as trustee. This provision is not necessarily a part of an enrollment bill, and should, in my opinion, be made the subject of a separate measure, providing Congress is satisfied that the time has now arrived for the abolishment of the tribal organization.
I wish to suggest that the term “Choctaw-Chickasaw Tribe” as used in various places in the bill, is not in harmony with the history or organization of said tribes. The Choctaw and Chickasaw Nations are entirely independent in their organization. It is true that prior to allotment they did own in common all of the lands embraced within the Choctaw-Chickasaw country, but they did not constitute a single tribe.
In view of the facts stated above, I am of opinion, that the bill should not be enacted into law.
Copy of the decision of the Secretary of the Interior of March 17, 1903, relating to the identification of mixed-blood children of Mississippi Choctaws, is enclosed for your consideration. The opinion of the Attorney General of June 19, 1903 relating to the same subject appears on page 689 of Volume XXIV of the printed opinions of the Attorney General.
Samuel Adams, First Assistant Secretary