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Agnes O. Mallory Et Al.
Application for enrollment as Choctaws by blood.
September 8, 1896. Application submitted to commission, alleging that claimant was a daughter of Agnes Foster, who was a daughter of Jesse Turnbull, a full-blood Choctaw Indian; that claimant was born in Mississippi, reared there, and came to and settled in the Choctaw Nation in 1894, in which year claimant applied to the Choctaw Council for enrollment, but no action was taken.
(See affidavit hereto attached explaining failure of council to act.) In 1895 claimants removed to Chickasaw Nation and settled near Comanche, where they have since resided. Anthony. Robert, and William Turnbull, her brothers, and Gilbert Trahern, her half brother, removed to the Choctaw Nation, and they and their descendants have always been recognized as citizens of said Nation. Said application is supported by the affidavits of Louis Trahern, her nephew, and an enrolled Choctaw, Rebecca Trahern, F. A. Reynolds, Thomas Ford, Mrs. A. A. Lombard, and F. L. Reynolds, all corroborative of the allegations contained in the petition. Mrs. Mallory is first cousin of Felicity L. Reynolds, whose name appears on the finally approved Choctaw blood roll opposite No. 14319; Mrs. Mallory’s mother being Agnes Turnbull and Mrs. Reynolds’s father was Robert Turnbull, brother of Agnes. That the children of Felicity L. Reynolds appear on the final roll of the Choctaws as follows: James T. Reynolds, roll No. 14320; Hugh A. Reynolds, roll No. 14322; Alta G. Reynolds, roll No. 14323: Felicity L. Reynolds, jr., roll No. 14324: Earl V. Reynolds, roll No. 14325: William Jackson Reynolds, roll No. 15831.
On page 94, vol. 7, American State papers, public lands, under the heading ” Names of Indians owning farms.” and prepared by the United States authorities pursuant to the supplementary articles of the treaty of 1830, appears the name of Samuel Foster, father of claimant A. O. Mallory, with the notation, ” Number of acres cultivated, 40; entire number of family, 6; males over 10 years of age, 1: males and females under 10 years. 3; 12 slaves; total number of acres, 060; provided for in supplement.” Answer was filed by nations, and the record shows application “denied,” no finding or decision appearing in record of case.
1807-8. On February 22, 1897, an appeal was perfected to the United States Court, Southern District, Indian Territory. Additional evidence was offered by claimants, together with the records before the commission. No evidence offered by nations.
A decree was entered admitting the following persons: Mrs. A. O. Mallory, Mrs. Cassie Prichard, Booker Mitchell Prichard, Jessie Prichard, S. F. Sanders, Bessie Octavia Sanders, Drucilla Sanders, Eva Sanders, Claude Sanders, Ella Sanders. (Certified copy of decree hereto attached, marked ” Exhibit A.”)
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March 23, 1903. Case transferred to the citizenship court.
November 28, 1904. Decree was entered decreeing claimants not citizens of the Choctaw Nation. The decree was entered in accordance with a decision of the citizenship court in which the Choctaw blood and descent of all the claimants is admitted from scripees under the treaty of 1830, but it is held that their removal in 1894 was too late to entitle them to enrollment; that their rights became extinct by their failure to remove within a reasonable time after the treaty of’ 1830.
The holding of the citizenship court on this point was diametrically opposite to the holding of the United States courts in the central and southern districts of the Indian Territory. (Jack Amos et al., Am. Rep. Con. Ind. Af., 1898, p. 459; E. J. Home, id., p. 465; general summary, id.. 475.)
The holding of the citizenship court in this case was repudiated by the Assistant Attorney General for the department in an elaborate opinion rendered February 19, 1906, in the leading case of James S. Long et al., wherein, after citing the decisions of the United States courts on this point, the Attorney General says:
On the other hand is the case of Mrs. A. O. Mallory et al., November 28, 1904, wherein a Choctaw born in 1843 In Mississippi, living there until 1894, removed to the nation and thereafter resided therein. The Choctaw-Chickasaw citizenship court held that the treaty of 1830 imposed an obligation to remove from the State upon all who did not claim benefit of the fourteenth article, and that such removal must have been “within a reasonable time.” What was a reasonable time was not defined, but it was held that removal in 1894 was not within a reasonable time, and enrollment was denied. Judicial constructions are thus at variance, and of the two the first appears the better reason and supported by the historic facts.
There was no law of Congress requiring settlement in the nations prior to June 28, 1898, and this was four years after claimants removed.
List of claimants adjudged citizens of the Choctaw Nation by United States court, and children born to them prior to March 4, 1906; Mrs. A. O. Mallory, Mrs. Cassie Prichard, Booker Mitchell Prichard, Jessie Prichard, S. F. Sanders, Bessie Octavio Sanders, Drucilla Sanders, Eva Sanders, Claude Sanders, Ella Sanders, Ruth Sanders, Lucila Sanders, Jesse II. Sanders.
Ballinger & Lee, Attorneys for Claimants.
Transcript Of Proceedings
United States Court,
Indian Territory, Southern District, ss:
At a stated term of the United States Court in the Indian Territory, Southern District, begun and had in the court rooms at Ardmore, in the Indian Territory, on the 15th day of November, in the year of our Lord one thousand eight hundred and ninety-seven.
Present, the Hon. Hosen Townsend. Judge of said court.
On the 20th day of January 1898, being a regular day of said term of said court, among the proceedings had were the following, to wit: Mrs. A. O. Mallory v. Choctaw Nation.
On this the 20th day of January 1898, came regularly on to he heard the above-entitled cause on the application, evidence, exhibits, master’s report, exceptions to the master’s report, and the entire record in the cause; and the court having heard the evidence and being well and truly advised in the premises, finds that Mrs. Cassie Prichard, Mrs. A. O. Mallory, Booker Mitchell Prichard, Jessie Prichard, S. K. Saunders, Bessie Octavio Saunders, Drucilla Saunders, Eva Saunders, Claude Saunders, and Ella Saunders are all Choctaw Indians by blood and are entitled to be enrolled as such.
And that Mrs. Fannie Saunders is entitled to be enrolled as a member of the Choctaw Tribe of Indians by intermarriage with S. F. Saunders.
It is therefore by the court considered, ordered, adjudged, and decreed that the above-named applicants, to wit: Mrs. A. O. Mallory, Mrs. Cassie Prichard, Booker Mitchell Prichard, Jessie Prichard, S. F. Saunders, Mrs. Fannie Saunders, Bessie Octavio Saunders, Drucilla Saunders, Eva Saunders, Claude Saunders, and Ella Saunders be and they are hereby, admitted and enrolled as members of the Choctaw Nation and as members of the Choctaw Tribe of Indians, with all the rights, privileges, and immunities pertaining to such relation.
It is further ordered that the clerk of this court certify a true copy of this decree to the Commission to the Five Civilized Tribes and that such commission enroll the above-named parties as members of the Choctaw Tribe of Indians.
Hosea Townsend, Judge. United States Court,
Indian Territory, Southern District, ss:
I, C. M. Campbell, clerk of the United States court within and for the district and Territory aforesaid, do hereby certify that the foregoing orders are truly taken and correctly copied from court journals of said court as the same appears to me.
In testimony whereof I have hereunto set my hand and affixed the seal of said court at Ardmore, this 4th day of May, A. D. 1898.
C. M. Campbell, Clerk.
By _______ ______, Deputy.
This is to certify that I am the officer having custody of the records pertaining to the enrollment of the members of the Choctaw, Chickasaw, Cherokee, Creek, and Seminole Tribes of Indians, and the disposition of the land of said tribes, and that the above and foregoing is a true and correct copy of a certified copy of the order of the court, dated January 20, 1898, in the case of Mrs. A. O. Mallory et al. v. The Choctaw Nation.
J. Geo. Wright,
Commissioner to the Fire Civilized Tribes.
By W. H. Angell,
Clerk in charge of Choctaw records.
State or Oklahoma, Stephens County, ss:
Personally appeared before me, the undersigned authority, Samuel F. Saunders, and his mother, Agnes O. Mallory, to me personally known, and upon their oaths state:
That they are the identical persons who applied to the Commission to the Five Civilized Tribes on September 8, 1896, for enrollment as Choctaws, and are the identical persons mentioned in the decree of the United States Court, Southern District, Indian Territory, sitting at Ardmore, and entered on the 20th day of May, 1898; that upon their removal from Mississippi in 1894 affiants applied in person, during the month of September, to the Choctaw Council, sitting at Tuskahoma, Choctaw Nation, for recognition as members of the Choctaw Nation, of themselves and their families, including all those persons mentioned in said court judgment; that simultaneously application was made for the admission of Louis Trahern, son of Gilbert Trahern, who was half brother of affiant Agnes O. Mallory, and his mother. Agnes Turnbull, being the mother of affiant Agnes O. Mallory, and from whom affiants derived their Choctaw blood; that there were a large number of similar applications pending before the council, and that the council continued in session until the appropriation for the payment of the salaries of the members of the council was exhausted; that on the last day the council was in session the application of Louis Trahern was favorably acted upon, and he was duly admitted as a member of the Choctaw Tribe; that Immediately thereafter the council adjourned, and before reaching the next case on the list, which was the case of affiants; that when the council met the following year, 1895, affiants were notified to appear and present their evidence; that when this notice was received affiant Samuel F. Saunders, who was attending to the matter for his family and his mother’s family, was seriously ill, and was advised by his physician that his health would not permit his going to Tuskahoma; that the attending physician made affidavit to the above fact, which was transmitted to the Choctaw Council: that no action was taken on the application of affiants at that session of the council; that in 1896 the Dawes Commission was created, and affiants were advised by their then attorneys, Potter & Thomas, of Ardmore, Ind. T., that the Dawes Commission then had jurisdiction of their case, and that the Choctaw Council no longer had authority to admit affiants; that following the advice of their attorneys they applied to the Dawes Commission for enrollment.
Affiants further state that from the time of their arrival in the Choctaw Nation in 1894 they were recognized by the Choctaws as members of the tribe; that they bought improvements from Indians, owned, improved, and cultivated farms, and that their rights so to do was never questioned by the Choctaw or Chickasaw authorities; that affiants purchased improvements in the Chickasaw Nation in 1895 of the value of more than $6,000, purchasing said improvements from one Jim Weaver, a recognized and enrolled Chickasaw Indian; that they continued in peaceable and undisturbed possession of said property until after the decree of the citizenship court on November 28, 1904; that there after attempts were made to dispossess affiants; that these attempts were resisted in the courts, and that affiants are today in possession of part of said property.
Affiants further state that the father of affiant A. O. Mallory, Samuel Foster, was a member of the Choctaw Tribe of Indians in 1830, and was one of the reserves under the treaty of that year; that he is the identical person mention on page 94, volume 7, American State Papers, Public Lands; that he had four children-one boy and three girls of whom affiant A. O. Mallory was one of said girls.
Agnes O. Mallory.
Samuel F. Saunders.
Subscribed and sworn to before me this 3d day of October 1910.
[seal.] John T. Chelf,
Notary Public. My commission expires January 26, 1911.