Acts of General and Preliminary Character
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1. Act of June 10, 1896 (29 Stat., 21). This act illustrates that Congress did not appreciate the magnitude of the work to be accomplished in making rolls of citizenship of the Five Civilized Tribes. The. law was drawn upon the theory that complete rolls could be made within six months. It contemplated
(1) that the Commission to the Five Civilized Tribes and the tribal authorities should enroll all persons entitled to citizenship who had not theretofore been enrolled, and
(2) that the commission should make up a complete roll of said tribes by adding to the names already on the tribal rolls the names of all other persons granted enrollment by the Commission to the Five Civilized Tribes and by the tribal authorities under said act. The important points are:
(a) It threw upon the Indian, although a ward of the Government, the burden of making the application.
(b) The act contained four arbitrary time limits. Applications to the commission were to be made in 90 days. The commission was required to decide such applications within 90 days from receipt of same. Applications to the tribal authorities were also to be made within three months from and after the passage of the act. Such applications were to be determined within 30 days from the date thereof.
(c) The act provided for an appeal to the United States courts, and declared that decisions of the latter should be final, but made no provision whatever as to whether the decisions of the commission and of the tribal authorities, in the absence of appeal, were to be final. This uncertainty led to great confusion several years later in an attempt to apply the opinion of the Attorney General of February 19, 1907, relative to the cases of William C. Thompson and others to the citizenship cases that were pending during the few weeks prior to March 4,1907, as well as to the cases of those persons whose names were unlawfully stricken from the tribal rolls.
(d) The act was ambiguous in that it did not make clear whether the Commission to the Five Civilized Tribes and the tribal authorities were vested with authority to adjudicate the cases of persons whose names were already upon the tribal rolls. The commission, in the Wiley Adams case, adopted the view that its jurisdiction in the determination of the citizenship cases was limited solely to the cases of persons who had not theretofore been formally recognized as citizens of the respective nations. The Commissioner of Indian Affairs concurred in the decision of ‘the commission. In this connection it is important to note that the attorneys for the Choctaw and Chickasaw Nations, in arguing another matter, referred approvingly to the decision of the department of May 21, 1903, in the Wiley Adams case, and set forth in their brief at length the views adopted in said case.
(e) In said opinion of February 19, 1907. of the Attorney General certain expressions which were erroneously construed by the Department of the Interior to mean that the rejection of an applicant by the commission in 1896 was final for all time, and that there could be no reexamination upon the merits of any such case, resulted in a mistaken and erroneous application of the opinion, and many persons were stricken from the tribal rolls after the approval of the same months and even years before by the Secretary of the Interior, while many other cases which were then pending were adjudicated and denied upon the same mistaken theory. For this reason the decisions of the department subsequent to February 19, 1906, with respect to such cases should certainly be reviewed.
(f) The brief period allowed for the receipt and determination of applications under the act of June 10, 1895. made it impossible to avoid mistakes. Many errors were the result of these provisions. There were presented to the commission, in accordance with said act of June 10. 1896. some 7,500 claims, representing nearly, if not quite, 75,000 individuals, each claim requiring separate adjudication on the evidence upon which it rests. Computation shows that if the commission devoted all of its working hours to the receipt and consideration of such applications, it would have been able to give approximately but one minute to each person during the time it was supposed’ to consider and give due weight to the rolls, customs, and usages of the various tribes and to carefully consider the laws and treaties of the United States relating thereto.
Recent investigation has shown that practically all the rolls which the commission was supposed to consider under the act of June 10, 189t, were not in its possession during any time that year nor for several years thereafter.
(g) In the hurry and confusion applicants who were entitled to enrollment as Choctaws applied as Chickasaws, and vice versa. Applicants were rejected where they claimed two sources of right, one of which constituted a good claim and the other did not.
(h) Upon personal investigation I find that the commission did not render formal decisions in these cases. In examining a specific case I found that a mere notation in pencil was made upon the jacket of the case indicating that the party was to be enrolled. This notation was undated and unsigned. The action taken in this case was typical of that taken in the majority, and probably all, of those cases.
(i) Upon the whole, the adjudications of the commission under the act of June 10, 1896, were practically of no value in determining the rights of the applicants, at least in a great majority of cases, and must often have resulted in injustice both to the nations in interest and to individual claimants.
(2) Act of June 7, 1897 (30 Stat., 83).-This act was also of a general nature. Properly speaking it was supplemental to the act “f June 10, 1896. I understand that many applications were made under this act, but practically nothing whatever was accomplished. And, further, that no roll was made up either under this act or the act of June 10, 1896, which should in any way be regarded as a roll of citizens and freedmen of said tribes. By reason of what I have said concerning this and the preceding act, it was really necessary to make a new start in the enrollment work. Probably this idea was in the minds of the legislators when, by the enrollment act of June 28, 1898, Congress provided that the Commission to the Five Civilized Tribes should make ” a correct roll.”
(3) Act of June 28, 1898 (30 Stat’., 49H).-This was one of the most important of the enrollment acts and was subsequently made a part, by reference, of all or nearly all the agreements. It contained .1 number of provisions which applied to all the tribes, but it consisted in the main, so far as enrollment was concerned, of a series of paragraphs dealing successively with the respective classes of citizens and freedmen.
The following points are of importance with respect to this act:
(a) The act was not clear as to whether the Commission to the Five Civilized Tribes, under the. supervision of the Secretary of the Interior, was to consider the applications of all persons who might apply by blood or only the applications of those who were upon the tribal rolls. The Indian Office took the. more liberal view, but the department, i. e., the Secretary’s office, gave the statute a restricted meaning whereby the making of the final rolls became a mere process of elimination. Thus mistakes could be rectified where persons had been improperly enrolled in times past, but nothing could be done to give relief where the right to enrollment had been improperly withheld. Viewing the matter in the light of the reports of the Dawes Commission, referred to above, this construction was unfortunate. Moreover, in my opinion, it was not the necessary meaning to be given to the words of the act.
(b) This law limited the enrollment of the descendants of on- rolled citizens, where such descendants were not themselves enrolled on the tribal rolls, to descendants born subsequent to the making of such rolls. This was altogether too fine a distinction, for it goes almost without argument that the children of a family are of the same citizenship. There was one case which I recall, although I can not remember the name, where the son of a man whose name was on the 1880 Cherokee roll was denied enrollment. Yet by blood and residence the son was as fully entitled to enrollment as the father.
(c) In an opinion of December 14, 1904. the Assistant Attorney General for this department held that Mary W. Greenleaf and her children should not be enrolled as Cherokees by blood. The parents of Mrs. Greenleaf separated and she was carried by her father when but 3 years of age to California where she resided for many years, during which time she was kept in ignorance of her Cherokee blood and Indian rights. Several tribal rolls were made during her absence but naturally her name was omitted there from. Her mother, who remained in the Cherokee Nation, was duly enrolled upon the 1880 Cherokee roll which was affirmed by said act of June 28, 1898. Upon these facts the Assistant Attorney General held
(1) that Mrs. Greenleaf’s natural right, by reason of her birth, was perfect, and that she had not by voluntary act forfeited her citizenship during her absence, but that the Commission to the Five Civilized Tribes was, because of the act of May 31, 1900. without jurisdiction to receive or consider her application, and
(2) that her minor children should also be denied enrollment. It was claimed in this case that inasmuch as the grandmother of these children was enrolled upon the 1880 roll, they were entitled, under the Curtis Act, to be enrolled as “descendants” of one whose name was borne upon that roll, but the Assistant Attorney General refused to consent to this contention holding it was not intended to include all descendants “but only such descendants as could show continuity of the line of allegiance as well as a continuity of descent.”
We kept Mrs. Greenleaf’s case on file in the Secretary’s office, in what we termed the “equitable box,” for a long time thinking that Congress might possibly give remedial legislation of some character, but none was ever enacted.
(d) The necessary meaning of the act was that the commission should take the initiative in the making of the rolls and not throw upon (he Indian the duty of making the first move. The commission was directed to make a ” correct roll,” and it was authorized ” to take a census of each of said tribes, or to adopt any other means by them deemed necessary to enable them to make such rolls.” Notwithstanding the fact that the Indians were wards of the Government, and many of them orphans and minors, the department, in 1899, adopted formal regulations requiring the Indians to make application in person to the enrolling officers. This rule worked great hardship, as I learned from personal investigation. This practice was condemned by the Assistant Attorney General in an opinion rendered August 5, 1903, but not until after it had been followed for about five years. I understand, however, that the practice was never abandoned. In fact, this mode, of procedure became, by implication at. least, a part of the agreements.
(e) Although the Indians by blood were required to show tribal enrollment, no such burden was imposed upon the freedmen. A Negro might be, enrolled as a Cherokee citizen and receive a full allotment, if he could show continuous residence in the Cherokee Nation since the outbreak of the Civil War, but an Indian by blood could not secure enrollment by the Dawes Commission upon the same proof, unless his name appeared upon some roll of the tribe. There were other respects, however, which rendered the way of the freedmen sufficiently hard, but I will refer to this again in connection with the act of April 26, 1906.
(f) It, was provided by the act that no person should bo enrolled who had not theretofore, i. e., prior to June 28, 1898, removed to and settled in the nation in which he claimed citizenship. The commission construed this literally, and denied enrollment to persons who were not actual physical residents on said date. This ruling continued to be the practice for nearly five years. It was corrected by the opinion of the Assistant Attorney General in the Joseph D. Yeargain case, rendered March 16, 1903. Following this opinion many cases were readjudicated, but the error proved costly to the applicants and put the department back in its work.
(g) The act of June 28, 1898, also provided that the Commission to the Five Civilized Tribes should have access to all rolls and records of the several tribes. Notwithstanding this provision the work of enrollment ran on for more than four years before the commission obtained possession of the more important rolls of the Choctaw and Chickasaw Nations. The full force and gravity of this fact can be seen from the report, of the commission rendered January 23, 1903. in the case of Bettie Lewis. Furthermore, as I found recently, there were important rolls which were never delivered to the commission until long after the close, of the enrollment work, and of the existence of which the commission and its successor were ignorant.
(h) In conclusion, this act, as administered, was well adapted to purge the rolls of names wrongfully inscribed thereon, but it was inoperative to restore names improperly stricken there from.
(4) Act of May 31, 1900 (31 Stat.,221).-This act. in so far as material to the enrollment question, reads as follows:
That said commission shall continue to exercise nil authority heretofore conferred on it by law. But it shall not receive, consider, or make any record of any application of any person for enrollment as a member of any tribe in Indian Territory who has not been a recognized citizen thereof, and duly and lawfully enrolled or admitted as such, and its refusal of such applications shall be final when approved by the Secretary of the Interior: Provided, That any Mississippi Choctaw, duly identified as such by the United States Commission to the Five Civilized Tribes, shall have the right, at any time prior to the approval of the final rolls of the Choctaws and Chickasaws by the Secretary of the Interior, to make settlement within the Choctaw-Chickasaw country, and on proof of the fact of bona fide settlement may be enrolled by the said United States Commission and by the Secretary of the Interior as Choctaws entitled to allotment: Provided further. That all contracts or agreements looking to the sale or encumbrance in any way of the lauds to be allotted to said Mississippi Choctaws shall be null and void.
The purpose of this act was to expedite the enrollment work. It was much better calculated, however, to secure expedition than to permit of the enrollment of all who were entitled to citizenship. The purpose of the act is plainly set forth in one of the early reports of the Dawes Commission. It is understood in the department and I have been so informed on reliable authority that one of the Commissioners to the Five Civilized Tribes, contrary to the wishes of the department, secured the insertion of this provision in said act of May 31, 1900. The act failed, however, to accomplish its purpose, as appears from one of the reports of the Dawes Commission.
Being unable to apply for enrollment in the class known as “Choctaws by blood,” many persons made application as Mississippi Choctaws. The taking of their testimony and the adjudication of their cases required fully as much, if not more, time than would have been required had they applied as Choctaws by blood. Besides, the department required a memorandum to be prepared in each case for the inspection of the Secretary and Indian Office. This memorandum was in fact a record and was fully as voluminous as the regular record cases.
Much testimony was taken in the Mississippi Choctaw cases, but the applicants as a rule were too poor and too ignorant to get together the necessary proof of ancestry. Although much testimony was also taken in the so-called “memorandum cases,” the same result always followed in such cases, to wit: The applicants were denied enrollment merely upon the jurisdictional ground that their names were not to be found upon the tribal rolls. These decisions were deemed necessary, regardless of the apparent merits of the cases. This fact explains why there are a considerable number of people in the Five Civilized Tribes who claim Indian blood but who have failed to secure enrollment. It will be easily seen that the applications of such persons were not in fact received and treated as applications, and their cases were not disposed of upon substantial grounds. In a subsequent connection I will show the percentage of rejected persons involved in “memorandum cases” claiming one-fourth or more Indian blood; also the percentage of Mississippi Choctaws who v/ere denied enrollment and who claimed one-fourth or more Indian blood.
Obviously, by virtue of this act the tribal rolls became exceedingly important as a jurisdictional basis in the making of the final rolls. Such importance should not have been given to the tribal rolls unless they were entitled to great credit and respect. Notwithstanding this is true, consider what I have said hereinbefore concerning the unlawful and unwarranted striking of names from the tribal rolls without notice for political, personal, and jurisdictional reasons.
It is also obvious that if the tribal rolls were to play such an important part in the work that the commission should have been supplied with all of such rolls, yet it is a fact that the commission did not obtain the important rolls until nearly three years later. Furthermore, there were certain of such rolls which were never obtained by the commission but which wore secreted by parties in interest until after the enrollment work closed.
It is also plain that all such rolls should have been thoroughly indexed and made available for examination both by the commission and by the applicants and their attorneys. Notwithstanding this is true, a number of the important rolls were never indexed and. as a general rule, were not open to the inspection of attorneys. Relative to the indexing of the rolls I will speak further and in a subsequent connection.
Under this act the commission was barred from receiving the application of any person for enrollment as a member of any tribe in the Indian Territory who had not been “a recognized citizen thereof and duly and lawfully enrolled or admitted as such.” The word “and”‘ following the word “thereof” might have been construed to mean “or” as has often been done in statutory construction. Had this been done the commission might have taken jurisdiction of the cases of a considerable number of persons who were in various ways recognized as having the privileges of citizenship. If this had been done their cases could have been decided upon their merits rather than upon jurisdictional grounds. In this connection I have reference to people who were accorded school privileges in the Indian nations who were granted permits to employ noncitizens and whose rights were adjudicated in the tribal courts.
A liberal construction of the act would have rendered its harassing applicable only to the decision of the commission leaving in the Secretary of the Interior a supervisory authority to enroll the applicants. I base this view upon that portion of the act which said that the decisions of the commission should be final “when approved by the Secretary of the Interior.” By implication such decisions would net have been final had the Secretary refused to approve the same.
There are two reasons which may be attributed to the enactment of legislation such as that which was embodied in this act. It was thought necessary that the enrollment work be completed and the allotments of the lands made before statehood could be accomplished. Time has shown that this theory was not well founded. The origin of such acts is also to be found in the pressure which was brought upon Congress by the white population in Indian Territory and elsewhere, due to a desire to further business interests through the early allotment of the land and the establishment of a new system of land owning and leasing.