Acts of a Supplemental Character
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(7) Act of March 5, 1905 (33 Stat., 1048,1060} This act was supplemental to the regular enrollment acts and authorized the Commission to the Five Civilized Tribes, for 60 days following the approval of the act, to receive and consider the applications of certain newborn children for whose enrollment no provision had been made. This act was restrictive in three respects:
(a) It restricted the right to make application to the offspring of persons whose enrollment had theretofore been approved by the Secretary of the Interior. This was probably an unintentional defect in the law, but nevertheless it operated to draw a sharp dividing line between claimants who were equitably entitled to exactly the same consideration. That this is true will be readily appreciated when it is recalled that, at .the date of said act, there were many worth citizens whose applications were pending and who were subsequently enrolled. There was no difference between such persons and others whose enrollment had been approved at an earlier date except that in the one case the administrative machinery had moved more slowly than in the other.
(b) As the persons entitled to make application under the act must necessarily be the offspring of citizens whose enrollment had been approved by the Secretary of the Interior, there could be no question as to the citizenship of the children. Furthermore, it could not be questioned that such children were the wards of the Government and entitled to its assistance and protection. If such children were not, sifter securing their allotment, capable of holding the same except under restrictions, it was certainly most unfair to throw upon them the burden of taking the initiative in securing their rights.
(c) Here again an arbitrary time limit was fixed for the doing of a work when, in fact, experience had proven that the time required for such performance could not be computed in advance with mathematical precision. In this connection I would like to suggest that laws of this character might with fairness be approved so as to include all persons born before or after a given date, but that when Mich a work is laid out the administrative officers should be trusted to perform the same as rapidly as possible consistent with good administration, and, failing to do so, that they should be required to answer for their failure rather than the wards of the Government.
(8) Act of April 26,1906 (34 Stat., 137). It was provided in this act that the rolls of the tribes affected thereby should be fully completed on or before the 4th day of March, 1907, and that the Secretary of the Interior should have no jurisdiction to approve the enrollment of any person after said date. Time has shown that it was an absolute physical impossibility to complete the work within the time prescribed in this statute. The fact is that the work was not and could not be completed by March 4, 1907, and the department is required each day to confront difficulties and to struggle with complicated questions which seem utterly beyond solution under its present jurisdiction. It might, perhaps, have been possible for the department to complete the enrollment work within the time given it by Congress for that purpose, to wit. approximately one year, had there been no extra duties placed upon the Secretary by said act. I have learned from the office of the Commissioner to the Five Civilized Tribes that the new work arising under that act. by reason of the provisions therein relating to the enrollment of children living March 4. 190C, was of itself sufficient to provide work enough to last for one year. The result was that two years’ work was thrown upon the department by the act and only one year was given in which to accomplish it. I desire to call special attention to the following specific matters:
(a) Section 1 of this act provided that the Secretary of the Interior enroll persons whose names appear upon any of the tribal rolls and for whom the records in charge of the Commissioner to the Five Civilized Tribes showed that application was made prior to December 1, 1905, and which was not allowed solely because not made within the time prescribed by law. Upon first examination of this feature of the law it would seem that Congress had given remedial legislation by extending the time for making applications until December 1, 1905, but upon closer examination it will be seen that this law offered in fact but little relief. That this is true will be seen when it is remembered that the statutes limiting the making of applications had not been repealed prior to December 1, 1905, but, instead, were enforced not only upon that date but until April 26, 1906. During the whole period following the closing of the rolls to the receipt of applications no person would have been warranted in making application for enrollment and no attorney would have been justified in advising his client to do so. I think this explanation deserves serious consideration in view of the fact that some have opposed any further consideration of enrollment cases on the ground that claimants have had every possible opportunity of making application for enrollment. On the contrary, there has been a period of several years during which the adjudication of enrollment cases has proceeded without (here being any authority of law for the receipt of new applications. Moreover, as I have shown before in connection with the act of May 31, 1900, it profited a man nothing to make application unless he had been enrolled or recognized by some tribal authority, because, even if he did tender such application, it would necessarily be dismissed, owing to lack of jurisdiction.
(b) Section 2 of this act provided that applications should be received for the enrollment of children who were minors living March 4, 1906, whose parents had been enrolled as members of the Choctaw, Chickasaw. Cherokee, or Creek Tribes, or who had applications for enrollment pending at the date of the approval of the act. This provision was an improvement upon the act of March 3, 1905, in that it provided for the enrollment of children of citizens having pending cases as well as the children of citizens whose enrollment had already been approved. It was defective, however, in another respect, due in all probability to failure to anticipate the different classes of cases that might arise. In most of the enrollment acts it was provided that persons who died prior to a given date should not be enrolled, but that their interest in the tribal lands and moneys should pass to the tribe as a whole. There were cases where parents died a few days before the critical date, leaving minor children. Such children could not be enrolled under the act of April 26. 1906, because they were not the offspring of parents whose enrollment had already been approved or whose applications were then pending.
In respect to the Mississippi Choctaws. I find that there was an error of construction on the part of the Commissioner to the Five Civilized Tribes, which must nave caused many children to lose the rights of citizenship. In order that this may be understood, a word of explanation will be necessary, perhaps, concerning this class of Indians. There were two distinct stages in this work. Applicants were first identified as Mississippi Choctaws by the Commission to the Five Civilized Tribes, following which schedules of identified Mississippi Choctaws were prepared and approved by the Secretary of the Interior. After identification they had the right, for six months, to remove to and establish residence in the Choctaw-Chickasaw country. Subsequent to their removal and upon submitting satisfactory evidence of settlement, their names were placed upon a roll similar to that established for native-born Choctaws. Like other rolls of citizenship, these Mississippi Choctaw rolls would be forwarded to the Secretary, and when approved by him the persons named thereon became enrolled citizens with substantially the same rights as other Choctaw citizens. Accordingly, when the act of April 26, 1906, went into effect a question arose as to whether their minor children living March 4, 1906. were entitled to enrollment. The Commissioner to the Five Civilized Tribes erroneously held that they were not so entitled, and, of course, during the period while, his ruling was in effect the time in which they could make application was rapidly passing. The matter was brought to the attention of the department and, in a decision rendered May 25, 1906, in the case of Willis Willis, the Secretary of the Interior ruled that the children of enrolled Mississippi Choctaws living March 4, 1900. were entitled to enrollment under said act of April 26, 1906. When in Muskogee last October or November, I learned from the office of the Commissioner to the Five Civilized Tribes that, after receiving said decision of May 25, 1906, the practice was changed and the children of Mississippi Choctaws enrolled without further discrimination against them, but that there was no time to go back and take up the cases which had been disposed of under the act prior to said decision, and that no attempt was made to do so. Thus one-third of the allotted time was lost to the children of enrolled Mississippi Choctaws.
But the Mississippi Choctaw children were not the only ones to suffer by erroneous construction. The children of Choctaw freedmen fared even worse. Such freedmen were adopted years ago by the Choctaw Nation and their children were equally entitled to the benefits of the act of April 26, 1906. Without the knowledge of the department, the Commissioner to the Five Civilized Tribes adopted the construction that applications for the children of Choctaw freedmen would not be received, and public notice to this effect was given by means of posters posted upon the walls of the land office and probably elsewhere. While in Atoka I secured a copy of this notice, which I enclose herewith, as Exhibit L, for your inspection. You will note that it contains the following words:
The reception of applications is limited to minor children of members of the Choctaw and Chickasaw Tribes of Indian and to the minor children of persons who have applications pending for enrollment as citizens of the said nations on April 26, 1906, and docs not include the children of Choctaw and Chickasaw freedman. (Underscoring supplied.)
This notice was signed as follows :
Commissioner to the Five Civilized Tribes
Muskogee, Indian Territory, April 26, 1906
The department did not learn of the erroneous practice of the commission until a short time prior to the expiration of the 90-day period for the making of applications. Upon learning of the situation. however, the department wired Commissioner Bixby, under date of July 17, 1906, as follows :
Referring to your letter of fith instant, you are directed to receive all applications tendered under late acts for enrollment of Choctaw and Chickasaw freedmen, and to render decision on each case, the same to be reviewed by department. Letter follows relative to Ethel Pierson.
It has been estimated that about 500 children lost their right to enrollment by reason of this error. The view held by the Department of the Interior concerning the enrollment of Choctaw freedmen was also taken by the Attorney General in that portion of his opinion of February 19, 1907, relating to Ethel Pierson.
(c) Section 2 of this act provided that the rolls of citizenship of the Five Civilized Tribes should be fully completed on or before the 4th day of March, 1907, and that the Secretary of the Interior should have no jurisdiction to approve the enrollment of any person after said date. With the extra work imposed by the act itself in connection with the enrollment of the new-born children, it became absolutely impossible for the department to complete the work within the time prescribed, and today it may be said with perfect truthfulness that the word “complete” falls far short of describing the condition of the enrollment work and the citizenship rolls, as of March 4, 1907. I have pointed out heretofore that much of the work of the Commission to the Five Civilized Tribes had to be done over again because performed under misapprehension of the statutes to be administered. After authoritative construction of the law by the highest legal authority of the department, as a matter of justice and common fairness, it was incumbent upon the Secretary of the Interior to permit applicants to have rehearings and to readjudication their cases. During the last year of the enrollment work many cases in which there had been a difference of opinion on the part of the Commissioner to the Five Civilized Tribes and the department were remanded. By this action of the department, whether right or wrong, many persons were allowed to incur additional expense in securing and submitting new testimony. It was not fair to permit them to do so and then refuse to give sufficient time to read and examine .the evidence adduced by them. The department realized the situation and during the early part of the year 1907 brought the matter to the attention of Congress. Referring to the correspondence on the subject, I find that the department, by letter of January 12, 1907, furnished the Senate with copy of Indian Office letter of January 10, 1907, wherein it was recommended that an extension of at least one year’s time, from March 4, 1907, be granted for the completion of the rolls of citizens of said tribes. In forwarding the said report, the Secretary of the Interior said :
The department concurs in the views of the Indian Office. Unless the time is extended, many persons entitled to enrollment will not be enrolled. The Commission to the Five Civilized Tribes and the commissioner have been for years taking testimony and rendering decisions in cases involving complicated questions of citizenship in these tribes, and some of the cases have not yet reached the department.
While the department has disposed of most of the citizenship cases which have come before it, it apparently can not give due consideration to all the cases still pending and to be submitted by the Commissioner to the Five Civilized Tribes and the Indian Office within the time prescribed by the second section of the act of April 26, 1906 (34 Stat.. 137).
In a letter of March 1, 1907, further report was made to the President of the Senate showing the, number of cases which were pending in the office of the Secretary of the Interior on February 25, 1907. together with the number of persons included in said cases. Report, was also made in said letter showing the number of cases received in the Secretary’s Office from the Indian Office between February 2o and March 1, 1907, together with the number of persons affected thereby.
March 2.1907, the President of the Senate was further advised concerning the number of cases pending before the Department of the Interior.
Final report on this subject was made March 4. 1907 to the President of the Senate. Therein it was shown that there were 2,023 cases before the Secretary of the Interior which required examination and decision after February 25, 1907, and on or before March 4, 1907. The number of individuals included in the total number of cases was not stated in said letter of March 4, 1907, but they probably averaged from two to five persons. The total number of persons could not have been less than 5,000 and probably did not exceed 10,000. The unconditional closing of the enrollment work of the fixed date, to wit, March 4, 1907, worked a great hardship upon a number of Indians who were identified as Mississippi Choctaws a few days or weeks prior to that date. As to them, it became impossible to remove to the Choctaw-Chickasaw country and to establish proof of residence therein before the jurisdiction of the Secretary to approve their enrollment, terminated. Accordingly, here, as in many other cases, there was injustice done and the usual period of six months for removal to said country was not allowed them. Other Indians, who were identified as Mississippi Choctaws, had sufficient time for removal to the Choctaw-Chickasaw country, and, in addition thereto, a liberal allowance of time to establish settlement and residence therein. In my recent investigation of enrollment matters in Oklahoma I found that there were several families who were identified within the last week preceding March 4, 1907, in whose cases removal to the nation was physically impossible before that date. There were at least 15 persons, and perhaps more, included in these families. The majority of them were full-blood Indians.
(d) Section 3 of this act worked a change in the law relating to the enrollment of Creek freedmen, whereby several persons were deprived of rights to which they were entitled under treaty between the United States and the Creek Nation, concluded June 14, 1866, ratified by the Senate of the United States July 19, 1866. and proclaimed by the President August 11, 1866 (14 Stat, 785). The same people would, had their cases been reached and disposed of prior to April 26, 1906, have been enrolled as Creek freedmen, as was done in the cases of a number of other persons. Thus the law draws a sharp dividing line separating people whose rights were identically the same under the same treaty by according to one class and denying to the other rights to which both classes were entitled. That this may be seen I refer you to Article II of said treaty of 1866, whereby the Creek Nation adopted the freedmen, the terms of adoption being as follows:
Inasmuch us there are among the Creeks many persons of freedmen descent who have no interest in the soil, it is stipulated that hereafter these persons lawfully residing in said Creek country under other laws and usages, or who have been thus residing in said country, and may return within one year from the ratification of this treaty, and their descendants and such others of the same race as may bo permitted by the laws of said nation to settle within the limits of the jurisdiction of the Creek Notion as citizens thereof, shall have and enjoy all the rights and privileges of native citizens, including an equal interest in the soil and national funds.
Shortly after the close of the war a roll of Creek freedmen was prepared under the authority of the United States by Mr. J. W. Dunn. This roll was completed some time prior to March 14, 1867. The exact date I have never been able to learn. The roll, however, did not cover the whole period within which Creek freedmen were entitled to return to the nation, for it did not include any who thus returned between March 14, 1867, and the time when the year expired in which return was permissible. The expiration of the time for return, if within one year from the date of ratification, would have been July 10, 1867, or if within one year from the date of proclamation, August 11, 1867. The interval not covered by the Dunn roll therefore included at least 127 days or if the right to return continued for one year after the proclamation of the treaty, 150 days, and was a very considerable portion of the time allowed the freedmen.
The rule followed with reference to the enrollment of Creek freedmen was based upon a paragraph in section 21 of the act of June 28, 1898 (30 Stat., 495), which confirmed the Dunn roll and directed the commission to enroll all persons then living whose names were to be found on said roll and all descendants born since the date thereof to the persons whose names were found thereon. ” with such other persons of African descent as may have been rightfully admitted by the lawful authorities of the Creek Nation.”
In applying the provision last referred to the department found it possible to accord to Creek freedmen all the rights to which they were entitled under said treaty of 1866 by enrolling
(1) all living persons whose names appeared upon the Dunn roll, together with their descendants.
(2) all persons admitted to enrollment by the tribal authorities by act of council or decree of court or commission, and
(3) all freedmen who could establish by satisfactory proof that they maintained their residence in the Creek Nation following the treaty or returned thereto within the one year’s time prescribed thereby, such persons having been adopted collectively by the tribal authorities through the medium of the treaty itself.
But after the act of April 26, 1906, went into effect it was found impossible to construe it so as to accord the rights granted by the Curtis Act and by the treaty of 1866. Under said act the right to enrollment was limited to
(a) persons whose names appeared upon the Dunn roll, together with their descendants born since the date thereof, and
(b) persons born subsequent to the date of the preparation of said roll (the Dunn roll), together with their descendants born since such admission. Realizing, however, the change being wrought in the law, the statute expressly excepted such freedmen as had theretofore been enrolled upon rolls approved by the Secretary of the Interior. Thus the law contains internal evidence of a change and proof that all Creek freedmen were not to be accorded equal rights. I know that the cases were very few that were denied under the new law, but on that account they would be the more easy to correct. I will cite two cases in illustration of what I have said, the first being that of Joe Harrison, which is the subject of an opinion rendered by the Assistant Attorney General October 12, 1905, prior to the act under consideration; the other was the Creek freedmen case of Prissy Carruthers, in which opinion was rendered by the Assistant Attorney General May 31, 1906, construing said section 3 of the act of April 26, 1906.
(e) The second paragraph of section 3 of this act worked a change in the law relating to the enrollment of Cherokee freedmen, thereby depriving several people of rights to which they were entitled under the treaty between the United States and the Cherokee Nation concluded July 19,1866. ratified by the Senate of the United States July 27.1866, and proclaimed by the President August 11, 1866 (14 Stat., 799). The persons affected by this change in the law were comparatively few in number and would have been enrolled, as other freedmen of the Cherokee Nation, had their oases been reached and disposed of a little earlier in the course of the enrollment work. Here again was an injustice done. To make this plain, I refer you to Article IX of the said treaty of 1866, which reads as follows:
The Cherokee Nation having voluntarily, in February, eighteen hundred find sixty-three, by an act of their national council, forever abolished slavery, hereby covenant and agree that never hereafter shall either slavery or involuntary servitude exist in their nation otherwise than in the punishment of crime whereof the party shall have been duly convicted in accordance with-laws applicable to all the members of said tribe alike. They further agree that all freedmen who have been liberated by voluntary act of their former owners or by law as well as all free colored persons who were in the country at the commencement of the Rebellion and are now residents therein, or who may return within six months and their descendants, shall have all the rights of native Cherokee: Provided. That owners of slaves so emancipated in the Cherokee Nation shall never receive any compensation or pay for the slaves so emancipated.
A question may arise as to why it was thought necessary in the Cherokee and Creek Nations to make any provision for freedmen who might return. The fact that there were such freedmen who were likely to return to the said nations is explained by the history of the times. During the Civil War the Cherokees and Creeks divided into factions, part supporting the North and part the South. in active warfare. Many of the negroes, panic stricken, fled to neighboring States, particularly to Kansas, where they found a temporary refuge. It was well known that these negroes were not voluntary absentees and that they would return to their old homes after the war was over, hence the provisions in the treaties which refer to such persons.
In applying the article quoted above to the enrollment of Cherokee freedmen under the act of June 28, 1898, and later acts, three important questions arose. The first of these questions was as to whether the duty to return to the nation within the time stated, to wit, six months, applied to the former slaves of the Cherokee citizens as well as to the “free colored persons who were in the country at the commencement of the Rebellion.” After much controversy the department finally held, following the advice of the Assistant Attorney General, that the duty to return to the Cherokee Nation within six months lay not only upon the free colored persons but also upon the former slaves of the Cherokee citizens. I understand that there is now a mandamus suit pending in the courts of the District of Columbia involving this very point. The decisions rendered by the department and the Dawes Commission in that case show that the applicants were in fact the slaves of a Cherokee citizen and that there was no bar to their enrollment except that their physical return to the Cherokee Nation occurred a short time beyond the expiration of the time limit named in the treaty.
The next question which arose was, for administrative reasons, even more important. If the duty lay upon all to return within six months, when did that period begin to run? The Commission to the Five Civilized Tribes adopted the construction least favorable to the applicants and proceeded upon the theory that the period ran for six months following July 19, 1866. and terminated January 19, 1867. Many hearings were had and much testimony was taken, at considerable expense to the Government and to the parties concerned, upon the assumption that this was the correct construction of the law. But in view of the fact that the treaty was not proclaimed until August 11, 1866, the department, following the opinion of the Assistant Attorney General of January 13, 1904, held that the time for return did not expire until February 11, 1867. Thus it will be seen that there was a period running from the date of the Curtis Act, to wit, June 28, 1898. to the date of said opinion, including over five years, during which a considerable portion of the Cherokee freedmen work was performed under an erroneous view of the law. When wrongs like this were committed it was unreasonable to suppose that the mistakes causing such wrongs could be remedied in a brief period of time, particularly when the tribunal charged with the work was crowded with numerous other duties of an important character.
Connected with the question of returning to the Cherokee Nation and residence therein was another important question. Did the treaty require actual, physical return to the nation and presence therein within the six months period, or could one temporarily absent without intention of taking up a new abode be regarded as constructively present where his actual, physical return did not occur until a few days or weeks after the expiration of the time? This last question was answered by the opinion of the Assistant Attorney General of April 16, 1904, wherein he held that Charles Foreman, who was temporarily absent from the Cherokee Nation as a member of the household of Chief John Ross while the latter was attending to official business connected with the affairs of his tribe in Washington, was not barred by the six months period. This opinion was based upon the reasoning that, inasmuch as Ross was upon a public mission from the Cherokee Nation to the Government of the United States, he and all members of his party equally with him, including Foreman, were, in the view of the law, residents of the place from which the delegate was accredited; and as Foreman returned to the Cherokee Nation speedily after the death of Ross, which occurred in August, I860, it was clearly shown that he, Foreman, had not formed an intent to sever his citizenship in the nation and had not settled elsewhere with intent to remain.
There were several other members of the household of John Ross who were not so fortunate, however, in the determination of their cases. John Morgan and his wife, Cynthia, were also members of the household of Chief John Ross and were in every way entitled to enrollment as freedmen, except that a question arose as to whether they actually returned within the six months period. Ross died in 1866, but his body was not taken to the Cherokee Nation until 1867. It can not be stated exactly just when John and Cynthia Morgan returned to the nation, but the Indian Office, in a report of June 18, 1904, found that the preponderance of evidence showed that the applicants returned to the Cherokee Nation in the latter part of the year 1866. The department, however, refused to enroll them, finding that their return was not until subsequent to February 11, 1867. While the date of their return is not certain, it is clear that they did return within a very short time after the expiration of the six months period, and that they were fully as much entitled to claim constructive residence in the nation while absent with Chief John Ross as was Charles Foreman. The motion for review of departmental derision was denied, based upon the supposed decision of the Supreme Court of the Cherokee Nation, rendered in 1871. Said decision, however, was not properly in evidence, and even the showing made did not disclose whether the court’s decision turned upon a question of law or evidence. Even if there was such a decision, it was not binding upon the department in the making of the Cherokee freedmen rolls under the act of June 28, 1898 and later acts. After the act of April 26, 1906, which limited the enrollment of Cherokee freedmen to those persons “who were actual, personal, bona fide residents of the Cherokee Nation August 11, 1866, or who actually returned and established such residence in the Cherokee Nation on or before February 11, 1867.” A motion for review was denied by the department March 22, 1907, subsequent to the date fixed by statute for the closing of the enrollment work. This decision was based upon section 2 of said act of April 26, 1906.
There was another case, that of Burrell Daniels, who was carried by force from the Cherokee Nation and held in peonage for several years in Mexico. Opinions were rendered in this case by the Assistant Attorney General, both before and after the act of April 26, 1906, which demonstrated fully the changes effected in the law of enrollment by that act.
There was another case of this class which may prove of far more importance, to which I have referred above in general terms without mentioning the names of the parties. I have in mind the case of Lilly Lowe, et al., suit in which was filed in the Supreme Court of the District of Columbia to compel the Secretary of the Interior to correct the tribal rolls by erasing interlineations and notations there from purporting to cancel the names of the applicants from said rolls. A decision has already been rendered in this case by the Supreme Court of the District of Columbia against the Secretary of the Interior. This decision was rendered on demurrer following answer by the Secretary, in which he admitted in substance that the parties were the descendants of slaves held by Cherokee citizens. One of the points noted for argument in the demurrer was that the duty to return within six months from the treaty did not devolve upon ex-slaves and their descendants, it being contended in argument that that duty related only to the free colored citizens who were residing in the Cherokee Nation at the outbreak of the war. The case is now pending on appeal before the Court of Appeals of the District of Columbia.
(f) Section 4 of said act of April 26, 1900, provided that no name should be transferred from the approved freedmen, or any other approved rolls of the Choctaw, Chickasaw, Cherokee, Creek, or Seminole Tribes, respectively, to the rolls of citizens by blood unless the records in charge of the Commissioner to the Five Civilized Tribes should show that application for enrollment as citizen by blood was made within the time prescribed by law by or for the party seeking the transfer, and the records of the commission were to be conclusive evidence of such application unless it could be shown by documentary evidence that the Commission to the Five Civilized Tribes actually received such application within the time prescribed by law. This section operated to the detriment of persons of mixed Indian and Negro blood who claimed to be entitled to enrollment as citizens by blood. By this section a rule was prescribed as to such applicants which was not made to apply to other persons whose Indian blood was mixed with that of people who were not of African descent. As I have shown above, under paragraph (a), in discussing this act. any application by persons claiming citizenship by blood could be considered if filed prior to December 1, 1005. The original period for filing applications in the Choctaw Nation terminated December 25, 1902; in the Cherokee Nation October 31, 1902. In the Creek Nation the period terminated sometime later. By comparing section 1 of this act with the provision relating to transfers to the blood rolls contained in said section 4, it will be seen that the people of mixed Indian and Negro blood in the Choctaw and Chickasaw Nations had. approximately, three years less within which to make their application for enrollment than other citizens by blood. In another connection I will refer you to specific cases of this kind. I might add that the practice followed by the commission of returning applications to the parties tendering the same after the expiration of the time limit prescribed by the various agreements, naturally operated to reduce to the minimum the number of applications of record in the office of the Dawes Commission.