Office of the Secretary
Washington, D. G., March 27, 1905
Commission To The Five Civilized Tribes
Muscogee, Ind. T.
GENTLEMEN: August 25, 1904, you transmitted the record in the consolidated case embracing the applications of Richard B. Coleman, Ida C. Walker, Bettie W. Cooper, Bennetta Coleman, Henry A. Coleman, Willie N. Coleman, Richard S. Coleman, Winifred Coleman, Eva F. E. Coleman, Ida May Coleman, Ruth St. Clair Coleman, Richard W. Cooper, and Coleman Carlota Walker for enrollment as citizens by blood of the Choctaw Nation, and of Eva Coleman and Annie E. Coleman for enrollment as citizens by intermarriage of said nation.
In a decision rendered August 8, 1904, by a majority of your Commission, it was held that the applicants herein claiming enrollment as citizens by blood were entitled to enrollment as such. No action was taken upon the applications based upon intermarriage. A dissenting opinion was rendered on the same date by the chairman of your Commission.
Reporting in the matter September 28, 1904, the Acting Commissioner of Indian Affairs recommended that the record be returned to you for further investigation.
You will note that in the report of the Acting Commissioner, a copy of which is enclosed herewith, the names of Bennetta Coleman, Henry A. Coleman, Winifred Coleman, and Richard W. Cooper are erroneously given as Bennetta Cooper, Henry A. Cooper, Winfield Coleman, and Richard W. Coleman.
In an opinion of March 17, 1905, rendered by the Assistant Attorney-General for this Department, approved the same day, a copy of which is enclosed here with, it was held ” that the applicants were properly held to be entitled to be enrolled.” In accordance with this opinion, the Department concurs in the decision rendered by the majority of your Commission August 8, 1904. Said decision is hereby affirmed, and you are directed to enroll the persons herein claiming enrollment by blood as citizens of the Choctaw Nation. Respectfully,
E. A. Hitchcock, Secretary.
Office Of The Assistant Attorney-General
Washington, D. C., March 17, 1905
The Secretary Of The Interior
SIR: I received, by reference of December 15, 1904, with request for opinion thereon, the record in the consolidated Choctaw enrollment case of Richard B. Coleman and others, with a copy of the opinion of the Acting Attorney-General of December 7, 1904.
November 8, 1889, the general council of the Choctaw Nation enacted
AN ACT To establish the citizenship of R. B. Coleman, his wife, and their children.
SEC. 1. Be it enacted by the general council of the Choctaw Nation assembled, That Richard Benjamin Coleman and his wife, Eva Coleman, and their children, as follows: Richard St. Clair, age 15 years; Ida Clay, age 18; Bennetta, age 11; Bettie Withers, age; Henry Allen, age 6; Willia Norma Coleman, age 4, are hereby admitted to citizen ship in the Choctaw Nation, with its rights, privileges, and immunities, and that this act shall take effect and be in force from and after its passage.
Coleman was thereafter borne upon the tribal rolls, was appointed or elected to and held many offices, voted, participated with his family in distributions of tribal funds, and was generally and fully recognized as a Choctaw citizen to about December, 1898. The nation now resists enrollment of Coleman and his family upon three grounds, viz:
- That the foregoing act of admission was, obtained through misrepresentation and deceit;
- through bribery and corrupt influences;
- that the Choctaw council was without power to grant admission to citizenship without consent of the Chickasaw Nation.
Coleman came to the Territory from Texas in 1880 and has ever since lived there. For about two years before the act for his admission he had been an applicant to the council claiming descent from a full-blood Choctaw woman named Chapponia, first wife of his grandfather, John Coleman, formerly resident in Mississippi, near the confluence of the Tombigbee River and Yalebusba Creek, where their son Frank (his father) was born, about 1810. He was sent by the Choctaw Nation to a Kentucky school, whence he returned some years later and found the Choctaw people had migrated to Indian Territory. He went back to Kentucky, married Ann Elizabeth Bedford, and in 1844 removed to Greene County, Mo., where their son Richard B., the principal applicant, was born, in 1840; in 1807 he and his father, then dependent on him, went to McAlester, then to Boggy Depot, in the Choctaw Nation, just after the rebellion, and stayed about six weeks. Having lost all their property in the war, and finding it impossible to make a living there, they went to Texas, where his father died in 1808, near Denton, aged about 50 years. The applicant was mayor of Denton nearly eight years. At different times when his application was before the council it was supported by the oral testimony or affidavits of Mehaloma, Maitubby Wade, William B. Pitchlyn, Sophy McKinney. James King, John King, George S. Neal, white justice of the peace at Windsor, Mo. ; Dr. R. S. Ross, of Denton, Tex., and, he thinks, one Stephens also testified. He had at different times as counsel Lewis & Stephens, Wade Hampton, and Edmond McCurtain, who employed Campbell Frazer. Much of Coleman s testimony as to names of witnesses, the substance of their testimony, and names of his attorneys before the council and its committees, is corroborated by wit nesses for the nation in this proceeding.
The witnesses adduced by the nation at the hearing before the Commission to the Five Civilized Tribes were Simon E. Lewis and Tandy Stephens, his attorneys in 1887-88, before the council ; Robert J. Ward, a member of the council in 1887-1889, member of its citizenship committee in 1888; and Joshua B. Jeter, clerk of that committee, who substantially corroborate Coleman s testimony as to the ground for his claim to admission and the production of the first three or four of the witnesses on his behalf above named, and Jeter testified that he then “thought that he (Coleman) had a good case; ” that the evidence then adduced was written down and signed by the witnesses, and that there also were some affidavits submitted. The record shows that such wit nesses are dead, and the testimony of all but one is lost.
The nation adduced as witness Solomon II. Mackey, who testified that in the fall of 1890 he and Dave Robuck, speaker pro tempo re in the chair of the house of the Choctaw council when Coleman s bill passed that body in 1889, were on a railway train when Robuck mistook a stranger to be Coleman, and asked the stranger to pay him (Robuck) $75 balance of $150 that Coleman had promised to pay him for getting the bill passed. The man was not Coleman, nor was Coleman present. Fritz Sittel, partner of Coleman in a store in 1889, testified that Coleman took from the firm funds $700 when he started to attend the council that passed the act of admission, and borrowed $300 of one Haas, all of which he spent before returning ten days later, so that Coleman gave an order on the firm for $80 toward payment for a mule purchased on that trip; that all such transactions were charged by the bookkeeper, now dead, on the firm books, and the $700 was repaid about thirty days afterwards; that he had a conversation with Robuck afterwards, when acting as attorney for witness in a lawsuit, when Robuck told witness, ” I brought your partner through,” and, to the best of witness s recollection, got out of it $150 or $200. This witness had been twice arrested for larceny, one indictment being for rebranding Cole man s cattle, and still pending when he testified. Edward Sittel, father of last witness, was in 1889 partner of the firm, and testified that his son told him at the time that Coleman drew out the $700, and witness saw it on the book. Uriah P. Hughes testified that in 1884 and 1885, when he had a confectionery store in McAlester, and old Choctaw man and woman (Pusleys) bought some boneless ham and cheese for lunch. They wanted credit, and said they were going to the council to testify for Mr. Coleman, who was to pay them $100 whether to both or to each one he is uncertain. After a time they returned and bought a few more articles, for which they paid. Alfred M. McCay, Indian policeman, testified that his wife, since 1870, had known the old negro woman whose testimony he had heard was taken in support of Coleman s application before the council. She lived at Scott McKinney s, 4 miles west of McAlester. He and his wife saw her in 1883, and in his opinion her mental condition was that she “looked to me like she was in bad shape; she was pretty badly out of her mind; could only talk about one thing.” He saw her at various times to her death in 1887. He heard that her testimony was taken by the county judge. Green McCurtain, senator, former delegate to Washington, treasurer, and principal chief, testified that his brother Edmond was attorney for Coleman before the council in 1889, and being unable to attend, witness, for his brother, looked into the papers and formed the opinion that the case was not just. “I did not so tell Coleman, but said to him that I was too busy to give it attention and turned it over to Campbell Frazier.” The case was rejected by the citizenship committee, and Frazier told witness that he (Frazier) had talked with Robuck, who said he had rejected the application because there was nothing in it for him (Robuck). That he (Frazier) told Robuck what his fee was, and that he promised to divide it with Robuck, who agreed to reconsider it. The same day or the next Frazier asked witness to draw the Coleman bill, which he did, and it was passed. Witness says, ” I understood Coleman got his citizen ship by paying witnesses, and it was understood that way by everybody.”
Coleman adduced Martin Charleston, member of the council in 1889, who testified that the citizenship committee heard the evidence of James King and other witnesses and rejected the claim ; that Robuck was not one of the commit tee ; that Robuck drew and presented the Coleman bill, and said Coleman was a Choctaw ; also Josiah Gardner, who had been a member of the council, but apparently not in 1889, testified as to manner of procedure of the council and its committee, and that he attended at taking of Sophy McKenney s deposition before County Judge Pond, and she was then of sound mind.
Coleman testified in his own behalf, restating the family tradition of Choc-taw descent received by him from his father, who always claimed that he was a half-breed Choctaw. He denied that he ever used the Pusleys as witnesses, and testified that no Pusley had lived in the vicinity after Edmund Pusley s death in 1884 or 1885; denied that he took $700, or any other sum, from the firm funds when he went to the council, and produced the old firm book identifying the dead bookkeeper s handwriting, to show that his account was not debited with it or credited with its return ; said he never paid Robuck, or any one for him, or to or for any member of the council or to anyone for any of them any sum to obtain their favor of his bill ; all the money he took on his trip to the council was $80, collected from Lorendo Ristoko on a store account, the $300 Haas check, and a small sum borrowed from Doctor Tennant to pay on purchase of a mule. The check he gave to Jackman for collection, and gave Green McCurtain an order for its proceed, $200, to be paid to his brother Edmond as attorney s fees, $40 or $50 to be paid Frazier for assisting; he had paid some witness fees at $1.50 per day for four days and mileage at legal rates, and his hotel bill. This took all the money. Witness Pitchlyn, who testified that he knew Frank Coleman, the half-breed Choctaw, son of John Coleman, in Mississippi and went to school with him in Kentucky, died in 1893. Pitchlyn testified that he knew John Coleman, with whom he had traded in Mississippi, and his family, and that John Coleman s first wife was Chapponia, a full-blood. Choctaw, by whom he had one child, Frank; and that he (Pitchlyn) After returning from school, found that the Choctaws had migrated to the Territory, and followed them thereto, and was about 40 years old when he testified (in 1887-1889) ; that Sophy McKinney testified that she was from the Tombigboe River; knew John Coleman and his Choctaw son, Frank ; lived 6 or 7 miles from them : and that when Frank came back from school and found the Choctaws gone to the new nation McKinney persuaded him to return to Kentucky.
July 11, 1902, Harriett Henry and R. L. Coleman, at Columbia, Mo., testified under a commission upon interrogatories served June 17, 1902. Harriett s testimony, reducing interrogatories and answers to narrative, was that she was
89 years old ; lived in Boone County, Mo. ; her maiden name was Harriett Cole-man ; father s name, Francis Coleman ; mother s, Elizabeth Gordon ; father was born and raised in Orange County. Va. ; rather thinks mother was born and raised there, don t know for sure; father had no brother Francis S. Coleman, but had a son of that name, whose wife s maiden name was Ann Elizabeth Bedford, daughter of John Bedford ; Francis S. Coleman was born and raised at Bovd’s Station. Harrison County, Ky.; he came to Missouri, and went to Denton, Tex., and died near there: his children s names were John Francis, George, Richard, two sons killed by a falling tree, and Stephen, Hattie, Henrietta, and Mary ; father s children were Whitehead, Richard, Robert, Francis S., America, Eliza, Nancy, and herself, by father s last wife.
R. L. Coleman’s testimony reduced to narrative was that
His age was 78; lived in Columbia, Mo.; father s name was Whitehead; he had a brother Francis S., who was also brother of Mrs. Harriett Henry; grandfather on father s side was Francis Coleman; his wife was Elizabeth Coleman, nee Gordon; grand father and, he thinks, grandmother were born and raised in Orange County, Va.; their children were named Whitehead, Richard, Robert, Francis S., America, Eliza, Nancy, and Harriett; uncle Francis S. was born and raised at Boyd’s Station, Harrison County, Ky.; his wife s maiden name was Ann Elizabeth Bedford, daughter of John Bedford; when Francis S. Coleman moved from Kentucky, he came to Springfield, Mo. ; witness came with him; he died at or near Denton. Tex.; does not know the time; his children’s names, so far as he knew, were John Francis, George, Richard (Joe and Robert, killed while small boys), Sarah Elizabeth, Mary Henrietta, Harriett, and Stephens.
This witness was reexamined September 29, 1903, by one of the Commission, apparently without suggestion of, notice to, or knowledge of the interested parties or their council. His testimony, omitting some repetitions and immaterial matters, in narrative is that witness was born at Spottsylvania, Va.; lived here in Missouri three times; left here in 1847 and lived in the Cherokee Nation two years, and went to California and lived there from 1847 until he came back to Missouri in 1856; remained until 1858; went to Virginia; got there Christmas eve, 1858, and remained till November, 1865; came here the last time in 1866; knows Richard B. Coleman, of South McAlester, Ind. T. ; he is witness s first cousin ; his father, Francis S. Coleman, and his own were full brothers ; last saw Richard B. about thirty years ago ; do not know whom he married nor the names of his children or family. Witness came to Missouri with his father and family from Bluelick Springs, Nicholas County, Ky., in 1884. Francis S. lived in Harrison County. Dick was born while witness was here ; saw him in 1856 only a day, or per haps two, and no more until 1866, when he came where witness lived and took witness s sister away ; had not seen him since. His mother was Ann Elizabeth Bedford. Mrs. Harriett Henry was witness s aunt and Richard S. Coleman s aunt great-aunt. She died about three months ago. No; Richard B. Coleman s father never lived in Mississippi to witness s knowledge. Witness knew him since 1849 ; he was then a grown man. Witness s father was considerably older than Uncle Frank, and died in 1854. Frank S. must have been well on to 60 when he died. Francis S., from his birth until witness knew him, lived until some time after his marriage near witness s father, in Kentucky ; then moved to Bluelick and lived there ; came to Missouri in 1844 and lived near Springfield until about the time of the war ; then moved to Cooper County ; moved thence to Denton, Tex., and, he thinks, lived there till his death. His mother was Elizabeth Gordon, who witness reckons was a white woman, but he never saw her ; doe” not know where she and Francis were married ; thinks it as in Orange County, Va. ; only heard that. They settled in Kentucky in 1800, where witness s father lived that is his understanding. She died before 1829, in which year witness s father moved from Virginia to Kentucky, in witness s fifth year, and bought the place witness s grandparents had lived at Broadford, Harrison County, Ky., near Colemansville. There witness s grandfather is buried. Some of his grandfather s children witness never saw ; is not sure can tell all their names. Witness s grandfather had by his first wife two children, Covington and Eliza. Whitehead was the oldest of grandfather s second children ; one was Richard, a United States army surgeon; there was America; several daughters wit ness never saw ; thinks one was Eliza and one Nancy ; there might have been another, Harriett (this Mrs. Henry) ; this Francis S. ; and Robert, whom he knew, a United States army surgeon ; thinks he never heard that Grandfather Francis had either a brother or son John ; knows very little about them back of Grandfather Francis ; does not know grandfather s father s came. Francis B. was a very small boy when witness left Missouri in 1847 and went to Cherokee Nation ; lived there till 1849, and went to California. Witness never claimed Choctaw blood ; if he has Indian blood, does not know it. His father went from Broadford, Ky., where grandfather lived, to Virginia, and was raised by a bachelor uncle, whom witness remembers. Father married mother there and lived there several years; remembers father s Uncle Richard, a United Plates army surgeon, who died of cholera during the Black Hawk war.
The nation, October 12, 1903, filed copies of records of Harrison County, Ky., certified October 5, 1903, viz : Deed of August 2(5, 1800, by Francis Coleman and Elizabeth, his wife, of that county, to John McKinley, of 100 acres of land ; decree of March 8, 1813, for distribution in probate of the estate of Francis Coleman, deceased, to his widow, Elizabeth 11., and the several heirs, David Humphries and his wife, Polly, Covington Coleman, Whitehead Coleman. America Coleman, Richard Coleman, Elizabeth G. Coleman, Robert S. Coleman, Francis Coleman, N. C. Coleman, Harriett Coleman, report July 10, 1818; by David Humphries; guardian of minors Robert S., Francis, Ann C., and Harriett Coleman; deed of March 9, 1831, by John Bedford and wife Mary to Francis S. Coleman, all of Harrison County, Ky., for 160 acres of land in that county ; deed of partition, October 4, 1841, of a tract of land in Harrison County, Ky., in severalty, executed by Whitehead Coleman and Francis S. Coleman and Ann, his wife; deed of July 10, 1855, executed in Cooper County, Mo., by Francis S. Coleman and wife Ann, to persons named and described as the heirs of Elizabeth S. Coleman, deceased, of all the grantor s interest in two described tracts of land in Harrison County, Ky.
March 16, 1904, counsel for Coleman moved to strike from the record the foregoing testimony of R. L. Coleman, for want of notice, and the foregoing certified copies of documents, which, July 26, 1904, was overruled.
January 23, 1904, a protest was filed in the case by the nation against further proceedings herein until decision of the Choctaw-Chickasaw citizenship court in the case of Mattie Lee Armstrong, there pending, alleged to involve a similar issue. The same and other similar protests being referred to me for opinion, February 18, 1904, for reasons then stated I was of opinion that the delay re quested should be denied.
October 13, 1903, this cause was referred by the Secretary of the Interior to the Attorney-General, who was advised that the Choctaw and Chickasaw nations claimed that the Commission to the Five Civilized Tribes have authority to investigate as to the right of persons not of Choctaw or Chickasaw blood, placed on the rolls by act of council, in cases where the act of admission was obtained by bribery or false testimony. The Secretary requested to be advised as to the power and authority of the Commission to the Five Civilized Tribes or this Department to ignore the act of the Choctaw national council admitting said Coleman to citizenship, if it be found the passage thereof was secured by bribery or other unlawful means.
December 7, 1904, the Acting Attorney-General, referring to the rules of practice governing the Department ,of Justice, declined to find the facts from the record transmitted, but referring to the provision of the act of June 28, 1898 (30 Stat, 502), that-said Commission is authorized and directed to make correct rolls of the citizens by blood of all the other tribes, eliminating from the tribal rolls such names as may have been placed thereon by fraud or without authority of law, gave his opinion that:
It appears to me the above-quoted provisions of the statute impose upon the Com mission to the Five Civilized Tribes the duty and give it the power to determine whether any name appearing upon a tribal roll was placed there by fraud or without authority of law, and that the mere fact that such enrollment was by virtue of an act of the national council is not sufficient to preclude an inquiry. An act of the council should be treated with respect as prima facie valid and efficacious, and nothing done as the result thereof should be lightly set aside; but if it clearly appears that the act was procured by deliberate fraud and perjury, I do not think Congress intended that benefits there under should be enjoyed.
August 8, 1904, a majority of the Commission found that the applicants, except those later born to or intermarried with them, were admitted to citizen ship by the act of November 8, 1889, supra, enacted under the laws and in conformity with the rules, precedents, and customs of the Choctaw Nation, and that the same is not repealed ; that concurrent action of the legislature of the Chickasaw Nation was unnecessary to the validity of said act ; that the Com mission was without authority or jurisdiction to inquire into the reason of the passage of the act of November 8, 1889, or into such evidence as was presented before the citizenship committee of the Choctaw general council in procuring the passage of the act. The Commission thereupon admitted the applicants to enrollment.
A minority of the Commission was of opinion that the evidence of fraud ” is very unsatisfactory and fails to show that any fraud was used by any of the applicants,” “or by their connivance;” “that it is reasonable to presume that the evidence presented by Richard B. Coleman, warranted the finding of the citizenship committee that he possessed the requisite quantum of Choctaw blood and that the admission was based thereon ; that upon the evidence here presented none of the applicants have any Choctaw Indian blood ; that the evidence offered, upon which the act of admission was based, ” was fraudulent, false, and misleading;” that the act of admission “was void for want of equity and by reason of deceit,” and the enrollment of the applicants was ** without authority of law,” and their enrollment should be denied.
I have set out the evidence in the record at great length to show how T largely it was incompetent as hearsay and how unsatisfactory and inconclusive is that which is competent. No judgment of a court or legislative act could stand if its validity may be afterwards overthrown by proof of what somebody heard some one, unsworn, confessing himself a felon, say to somebody else about corrupt acts in its procurement, the interested party not being then present nor afterwards assenting to its truth. Such hearsay statements of co-conspirators are admissible only when there is substantive and direct proof of the existence of such conspiracy. There was no such direct proof. The testimony as to statements of Robuck and of the supposed bribed witnesses, given by Mackey, Fritz Sittel, and Hughes, is therefore utterly incompetent. The attempted circumstantial proof by evidence of the money taken by Coleman when he went to the council (said to be about $700), while competent, is, without better evidence, clearly insufficient to prove bribery or corrupt practices. It is, moreover, fully rebutted not merely by Coleman s testimony, but by production of the book of account in which witnesses Sittel said they saw the $700 item charged, and which fails to show it. No sufficient competent evidence remains to show that any parties admitted by the bill, or any other parties, committed or at tempted to commit or connived at commission of bribery or other corrupt practices.
As to the charge of misrepresentation and deceit, it is noticeable that the act of admission is not in its terms based on right by Choctaw blood. The minority of the commission so admits in deeming it ” reasonable to presume ” such was the fact. The record, however, shows that Coleman s application was pending from 1887 to 1889. At least one previous committee of the council rejected it, and the committee of the 1889 session did so. The council was thus advised that there was question of the sufficiency of Coleman s proof of Choctaw descent. It passed the bill introduced “outside” the committee, and not with standing its adverse report. There is no clear ground for the presumption that supposed Choctaw blood was the inducement to or moving consideration for passage of the act.
It is, moreover, a recognized rule in governments of divided and limited powers that the legislative branch is, within the scope of its constitutional action, independent, and that its motives mid reasons are not subject to judicial or administrative question. Ex parte McCardle (7 Wall., 506, 514); Fletcher v. Peck (6 Cr., 87, 128-131); Doyle v. Insurance Company (94 U. S., 535, 541); Powell v. Pennsylvania (127 U. S., 678, 684-685); County of Livingston v. Darlington (101 U. S., 407, 416-417); United States v. Des Moines Nav. Co. (142 U. S., 510, 540, 542) ; Dartmouth College case (4 Wheat, 518, 623). Examination of these cases will show that when the validity of legislative action on constitutional or other ground is brought into judicial scrutiny the court acts with the utmost circumspection, and all intendments and presumptions are in favor of the validity of the legislative action, which is never annulled unless the case is clear. These principles are general and applicable to all cases of such governments. Though the Five Civilized Tribes are de pendent communities, subject to the powers of Congress, they are autonomous states, and these principles are applicable to their governments as well as to those of the United States and the several States, subject to the modification that the clear will of Congress must prevail. If the proof be clear, the legislative act may be annulled; but clear proof is requisite to overthrow the presumptions of the integrity of legislative action. Congress, in the legislation defining the powers and duties of the Commission, declared that the Commission shall respect all laws of the several tribes not inconsistent with the laws of the United States and shall give due force and effect to the rolls, usages, and customs of each of said nations or tribes.
It is not clearly shown that Coleman was without Choctaw blood, though it is clear his claim of Choctaw descent, if true, must be more remote than he claimed. He claimed to be the son of Francis S. (Frank), son of John, by Chapponia, a Choctaw woman making him of quarter blood. The evidence of Mrs. Henry and R. L. Coleman shows he was the son of Francis S., son of Francis, son of an unnamed Coleman, who may have been John and may have had a Choctaw wife, mother of Francis (Frank), thus lengthening his descent one degree and reducing the Choctaw blood to one-eighth. Errors of omission are not infrequently found by students of genealogy and history. It is instanced in this record, wherein Mrs. Henry, testifying as to her father s family, and K. L. Coleman, as to his grandfather’s family, July 11, 1902, testified without reserve that Francis Coleman (Francis first) had eight children, all of whom they named. September 29, 1903, R. L. Coleman testified to additional children of Francis first by a first wife, Covington and Eliza; identifies his father, Whitehead, as the oldest of Francis s children by the second wife; uncertain whether he recalls all the names of children of the second wife, one of whom was also named Eliza. He thinks there may have been one more. It would seem quite improbable that two children of one parent (of the half blood) had identity of name, but the probate of Francis s (first s) estate shows that Mrs. Henry forgot to name her sister and brother of the half blood ; that she had two sisters Eliza, the elder of whom, ” Polly.” married Humphries, who was guardian for Mrs. Henry and three others of the children, then minors. The addition of an ancestor into the line of descent and substituting Francis (first) as the half -breed son of John Coleman and ” Chapponia,” a Choctaw, so lengthens the line as to carry back Francis first s school age to or before 1800, long prior to the migration in 1825-1830. Richard B. s father, Francis S., was a minor under guardianship in July, 1815, and died in 18(38, aged about 50 or GO years. So that he was born about 1808 to 1812. His father, Francis (on this theory the half-breed son of John Coleman and Chapponia), died a year or more pi-lot to 1813, when his estate was distributed after probate, the father of ten children surviving, born of two marriages, so that presumably he must have been born, allowing his age as only 40 in 1812, as early as 1772, when few, if any, white people lived in the Choctaw country, in Mississippi ; and Francis, or Frank, must have been past school age at the time of the Choctaw migration, which was pursuant to the treaties of October 18, 1820, January 20, 1825, and September 27, 1830 (7 Stat. L., 210, 234, 333) . This, however, does not prove that Richard B., the applicant, made any false representation to or practiced deceit upon the Choctaw council respecting his claim of Choctaw descent. One knows nothing of his own lineage. It is always a matter of tradition. The representation made, though untrue, is entirely compatible with honest belief.
But, for argument, admitting the representation was deceitfully made, not every case of deceit is remediable. The result was that a new allegiance was assumed and observed, and was by the Choctaw Nation accepted and recognized nine years prior to the act of June 28, 1898, during which times the nation had all the powers of a self-governing state for regulation of its internal affairs to examine into and correct its act. The testimony shows, even that of witnesses for the nation, that Coleman was a citizen of good general reputation. He was appointed and elected to offices by the executive and the people. Some of his children and his grandchildren were born to Choctaw allegiance. lie improved property and cooperated to the nation s development for fully one-fourth of human efficient activity. The right of allegiance to which one is born is of the highest character, recognized in this country even by treaties framed as the result of wars, so that a period is given within which citizens of territories acquired may elect to preserve the nationality to which they were born. Article XIII, treaty of February 2, 1840, with Mexico (9 Stat, 929) ; Article IX, treaty with Spain, December 10, 1898 (30 Stat, 1759.) The allegiance to which Richard s children were born carried an interest in communal property, so that rights of property, as well as of allegiance, are involved.
In United States v. Throckmorton (98 U. S., 01, 04-05), where it was claimed that patent had been obtained to a large tract of public lands by means of a forged and fictitious document offered in proof, the court held:
There is no question of the general doctrine that fraud vitiates the most solemn con tracts, documents, and even judgments. There is also no question that many rights originally founded in fraud become by lapse of time, the difficulty of proving the fraud, and by the protection which the law throws around rights once established by formal judicial proceedings in tribunals established by law, according to the methods of the law no longer open to inquiry in the usual and ordinary methods. Of this class are judgments and decrees of a court deciding between parties before the court and subject to its jurisdiction, in a trial which has presented the claims of the parties and where they have received the consideration of the court.
The doctrine is approved in the Maxwell Land Grant (121 IT. S., 325, 371) ; United States v. Des Moines, etc., Co., supra; United States v. San Jacinto Tin Company (125 U. S., 273, 299-300). In Moran v. Horsky (178 U. S., 205, 208) the court held:
A neglected right, if neglected too long, must be treated as an abandoned right which no court will enforce. See, among others, Felix v. Patrick (145 U. S., 317) ; Galliher v. Cad-well (145 U. S., 368), and cases cited in the opinion. There always comes a time when the best of rights will, by reason of neglect, pass beyond the protecting reach of the hands of equity, and the present case fully illustrates that proposition.
There is no sufficient proof that the Choctaw council was deceived. It was warned by the reports of its own committees that there was doubt of the sufficiency of the proofs. If it was deceived, it had full legislative and judicial powers to investigate the case and accepted Coleman s allegiance and service as a citizen and officer and took no action. The nation ought not now to be heard to deny the rights it conferred and for years acquiesced in according to and during which it received the benefit of his service and allegiance.
The power of one of these affiliated nations alone, without concurrence of the other, is a question largely of how they themselves in practice regarded their rights and obligations. None are concerned but themselves. Their treaties, laws, usages, and customs are the rule of guidance fixed by Congress for final administration and distribution of their communal property, By the treaty of June 30, 1855 (11 Stat., 611) their lands were made inalienable, except by con sent of both tribes, but the Chickasaws were designated a district. The separate autonomy of both tribes was preserved with right to regulate their awn internal affairs. Members of each tribe were permitted to settle within jurisdiction of the other. By Article XXVI of the treaty of April 28, 1866, the rights granted were to “extend to all persons who have become citizens by adoption or inter marriage of either of said nations or who may hereafter become such.” Separate autonomy implies right and power in the proper authority of each nation to determine who are, or ought to be, its citizens. Such has been the practice of both nations. As shown by its published laws, the Choctaw Nation by act of its council assumed to admit persons to its citizenship at least as early as October, 1849. Such was probably its usage from immemorial ancient time, as was that of other tribes generally. In 1858 it admitted the Belusha clan, said to consist of 94 persons, and in the same year a number of Creek citizens. Shall all citizens so admitted and their descendants born to Choctaw allegiance be now struck from the rolls? The Chickasaw Nation by its council exercised the same right. In October, 1876, it admitted to its citizenship the former Indian agent, D. H. Cooper, presumably a white man citizen of the United States, in grateful acknowledgment of his faithful service in guarding the interests of the Indian people as agent. Neither nation seems ever to have protested against such acts of the other, and neither seems ever to have conceived the idea that consent of the other was necessary, or sought its concurrence. The treaty of 1866, supra, to which both nations were parties, by Articles XXVI and XXXVIII, clearly recognized introduction of persons not citizens, even white persons, into the tribes, either by adoption or by intermarriage. The United States recognizes the right of the Indian nations to adopt white persons into the tribe. In re Mayfield (141 U. S., 107, 114) ; Roff v. Burney (108 U. S., 218, 22). In the latter case the court held:
Matilda Bomland was not a Chickasaw by blood, but one upon whom the right of Chickasaw citizenship had been conferred by an act of the Chickasaw legislature. The citizenship which the Chickasaw legislature could confer it could withdraw. The only restriction on the power of the Chickasaw Nation to legislate in respect to its internal affairs is that such legislation shall not conflict with the Constitution or laws of the United States, and we know of no provision of such Constitution or laws which would be set at naught by the action of a political community like this in withdrawing privileges of membership in the community once conferred.
The court further held (p. 223) that such matter was (before the act of June 28, 1898) one of exclusive cognizance of the Indian authorities, and that their “determination is not subject to correction by any direct appeal from the judgment of the Chickasaw courts.”
I am therefore of opinion that the act of admission of Coleman and others, whether he had Choctaw blood or not, was within the legislative power of the Choctaw Nation, without need of concurrence of the Chickasaw legislature, and that the act being unrepealed and no fraud being shown in its procurement, it is conclusive upon the Commission to the Five Civilized Tribes, and that the applicants were properly held to be entitled to be enrolled. Respectfully,
Frank L. Camphell, Assistant Attorney-General.
Approved March 17, 1905.
E. A. Hitchcock, Secretary.
Department Of Justice
Washington, D. C., December 7, 1904
The honorable the Secretary Of The Interior
SIR: I have the honor to reply to your communication of October 13, 1904.
You advise me: That in making up final rolls of the Choctaw Indians a question has arisen as to the power of the Commission to the Five Civilized Tribes to inquire and determine whether persons admitted to citizenship by an act of the Choctaw National Council should be placed thereon. That the Indians claim the Commission may investigate the right of any person whose name has been placed upon a tribal roll by virtue of an act of council, and if it be found that he was not of Choctaw blood and the act admitting him was obtained by bribery and false testimony, may strike his name therefrom. That the question is directly presented in the application of Richard B. Coleman et al, and will arise in other cases.
You transmit to me the record (some 375 pages) of Coleman s application and request advice as to the power and authority of the Commission to ignore the act of the Choctaw National Council admitting him to citizenship if it be found its passage was secured by bribery, perjury, or other unlawful means.
Your attention is called to the rules of this Department prohibiting investigation here of a record like the one sent for the purpose of ascertaining what it establishes. A request for an opinion by the head of any Department should be accompanied by a clear and distinct statement of the facts of the concrete case in reference to which it is desired. Opinions are not given upon hypothetical questions and only when necessary for a decision of a particular matter wherein action must be taken and in reference to which the exact facts have been ascertained and reported to me. An excellent plan is to follow, as near as may be, such course as would be proper in submitting a controversy for the decision of a court upon an agreed statement of facts.
In view of the foregoing I must decline to give you a formal opinion upon the subject about which you have inquired. I have, however, given it consideration with a view of aiding you in what appears to be a matter of unusual importance.
The act of Congress approved June 28, 180$ (30 Stat., 502), provides:
Said Commission is authorized and directed to make correct rolls of the citizens by blood of all the other tribes, eliminating from the tribal rolls such names as may have been placed thereon by fraud or without authority of law, enrolling; such only as may have lawful right thereto and their descendants born since such rolls were made, with such intermarried white persons as may be entitled to Choctaw and Chickasaw citizenship under the treaties and the laws of said tribes.
It appears to me the above-quoted provisions of the statute impose upon the Commission to the Five Civilized Tribes the duty and give it the power to deter mine whether any name appearing upon a tribal roll was placed there by fraud or without authority of law, and that the mere fact that such enrollment was by virtue of an act of the National Council is not sufficient to preclude an inquiry. An act of the Council should be treated with respect as prima facie valid and efficacious, and nothing done as the result thereof should be lightly set aside; but if it clearly appears that the act was procured by deliberate fraud and per jury I do not think Congress intended that benefits thereunder should be enjoyed.
Under separate cover I return the record transmitted with your letter and also briefs submitted by counsel.
W. A. Day, Acting Attorney-General.
Office Of Indian Affairs
Washington, D. C., September 28, 1904.
The honorable the Secretary Of The Interior
SIR: There is inclosed a report from the Commission to the Five Civilized Tribes, dated August 25, 1904, transmitting the record relative to the application of Richard B. Coleman et al. for enrollment as citizens of the Choctaw Nation.
Richard B. Coleman applied for the enrollment of himself and his children, Ida C. Walker, Bettie W. Cooper, Bennetta Cooper, Henry A. Cooper, Willie N. Coleman, as citizens by blood, and for the enrollment of his wife, Eva Coleman, as a citizen by intermarriage.
Richard S. Coleman, son of Richard B. Coleman, applied for the enrollment of himself and his minor children, Winfield and Eva F. E. Coleman, as citizens by blood, and for the enrollment of his wife, Annie E. Coleman, as a citizen by intermarriage.
Subsequently application was made for the enrollment of Ida May and Ruth St. Clair Coleman, children of Richard S. Coleman, born after his original application was made, and for Richard W. Coleman, child of Bettie W. Cooper, and Coleman Carlota Walker, child of Ida C. Walker, both of said children having been born subsequent to the date of the original applications of their parents.
August 8, 1004, Commissioners Needles and Breckinridge rendered a decision, holding that Richard B. Coleman, Ida C. Walker, Bettie W. Cooper, Bennetta Coleman, Henry A. Coleman, Willie N. Coleman, Richard S. Coleman, Winfield Coleman, Eva F. E. Coleman, Ida May Coleman, and Ruth St. Clair Coleman, and Richard W. Cooper and Coleman Carlota Walker were enttled to enrollinent as citizens by blood of the Choctaw Nation.
They did not pass upon the applications of Eva and Annie Coleman for enrollment as intermarried citizens. The same day Commissioner Bixby rendered a dissenting opinion, holding that the applicants who applied for enrollment as citizens by blood are not entitled to enrollment as such. The record in the case shows that on November 8, 1889, Richard B. Coleman, Richard S. Coleman, Bennetta Coleman, Henry A. Coleman, Willie N. Coleman, Ida C. Walker, and Bet-tie W. Cooper were admitted to citizenship in the Choctaw Nation by act of the general council.
A majority of the Commission holds that under the opinion of the Assistant Attorney-General of February 18, 1904 (I. T. D. 7118-1903, 1434-1904) they have no power to inquire as to whether the admission was obtained by fraud, and that the principal applicants having been admitted, said principal applicants and their children are entitled to enrollment.
Mr. Bixby says that he is clearly of the opinion from the evidence in the case that the citizenship committee of the general council which passed upon the petition of the applicants and upon which evidence their admission to the Choctaw Nation was based was fraudulent, false, and misrepresenting.
The testimony in the case is not entirely satisfactory to this office, and for the reasons hereinafter set forth the office will not at this time enter into a complete discussion of the case, as it is .considered that there is a very material point which should be settled before the Department passes upon the right of the applicants to enrollment.
Richard B. Coleman claims that he is a son of Francis S. Coleman and Ann Coleman, nee Bedford, and that his father, Francis S. Coleman, was a son of John Coleman, who lived in Alabama.
His mother was a daughter of John Bedford. When Richard B. Coleman was admitted in 1889, testimony was introduced which showed that John Coleman, of Alabama, had several children, one by the name of Frank, who was sent to Kentucky to be educated and did not return to Alabama. John Coleman was a white man, and from the testimony it appears that he was first married to a white woman and subsequently to an Indian woman.
William B. Pitchlyn, the record shows, testified before the committee of the council that Frank Coleman, son of John Coleman, of Alabama, was a child by a former wife and not by said Coleman s Indian wife.
Richard B. Coleman and other parties to this case attempted to be admitted to citizenship in the Choctaw Nation in 1887 and 1888, but were rejected. They again applied in 1889 and were rejected, but after said rejection another act was introduced admitting Richard B. Coleman and certain members of his family to citizenship, which vas approved by the principal chief November 8, 1889.
Francis S. Coleman, about 1841 or 1842, lived in Kentucky and was married there. lie removed to Missouri, where Richard B. Coleman was born, in 184G, and then to Texas. Richard B. Coleman removed to the Choctaw Nation in 1880, after his father s death.
The records of this office show that there was a John Coleman who was awarded land under the provisions of article 19 of the treaty of September 27, 1830. He was awarded fractional section 2, lot D of fractional section 1, and the north half of section 11, township 21 north, range 2 west. This land is west of the Tombigbee River, in Alabama.
Mrs. Harriet Henry, of Boone County, Mo., 89 years of age, in her deposition states that her maiden name was Harrriet Coleman; that she is a daughter of Francis Coleman; that her mother’s maiden name was Elizabeth Gordon; that her father was born and raised in Orange County, Va.; that she does not know where her mother was born, but thinks she was born in Orange County, Va.; that her father, Francis Coleman, had a son named Francis S. Coleman, whose wife s maiden name was Ann Elizabeth Bedford, daughter of John Bedford; that Francis S. Coleman was born and raised in Harrison County, Ky.; that he removed from Kentucky to Missouri, thence to Denton, Tex., where he died. She says that Francis S. Coleman, so far as she knew, had the following-named children: John Francis, George, Richard, two sons who were killed by a falling tree, Stephen, Hattie, Henrietta, Mary. She was asked to “give the names of all your father s children and brothers and sisters of Francis S. Coleman,” and replied:
Whitehead Coleman, Richard Coleman, Robert Coleman, Francis S. Coleman, America Coleman, Eliza Coleman, Nancy Coleman, and myself by father’s last wife.
From this testimony it appears that Harriet Henry may be an aunt of Richard B. Coleman.
R. L. Coleman, of Columbia, Mo., 78 years of age, states in his deposition that he is a son of Whitehead Coleman; that his father had a brother by the name of Francis S. Coleman, and that said Francis S. Coleman and his father were brothers of Mrs. Harriet Henry; that his grandfather s name on his father’s side was Francis Coleman; that his grandfather’s name on his father’s side was Elizabeth Coleman, nee Gordon; that he believed his grandfather was born and raised in Orange County, Va., and he thinks that his grandmother was raised in the same place; that his grandfather and grandmother had children named Whitehead Coleman, Richard Coleman, Robert Coleman, Francis S. Coleman, America Coleman, Elizabeth Coleman, Nancy Coleman, Harriet Coleman; that his uncle, Francis S. Coleman, was born and raised in Harrison County, Ky.; that Francis S. Coleman married Ann Elizabeth Bedford, wife of John Bedford; that Francis S. Coleman removed from Kentucky to Spring field, Mo.; that he died at or near Denton, Tex., and that the children of Francis S. Coleman, so far as he knew them, were John Francis, George, Richard (Joe and Robert, killed while small boys), Sarah Elizabeth, Mary, Henrietta, Harriet, Stephen. From this deposition it would seem that II. L. Coleman may be a cousin of Richard B. Coleman.
The principal applicant, Richard B. Coleman, testified that his father, Francis Coleman, was, to the best of his knowledge, born in Mississippi on the Tombigbee River and educated at Flatmouth, Ky. ; that when he returned to Mississippi, after having received his education, the Choctaw Indians had removed west, and he went back to Kentucky and married a daughter of Dr. John Bedford, of Flatmouth, and removed to Greene County, Mo., in 1844; resided there a while, and then moved to Cooper County, Mo., from there to Johnson County, and from there to Denton, Tex., where he died.
The record does not show whether Harriet Henry or R. L. Coleman claim to be or are aunt and cousin, respectively, of Richard B. Coleman, neither does it show whether they or their father or grandfather are or were of Indian descent.
Certified copy of the deed record book 1, page 587, shows that on August 28, 1800, Francis Coleman and Eliabzeth Coleman, his wife, of Harrison County, Ky., deeded certain property to John McKinley. Certified copy of the records of the county court of Harrison County, Ky., Book ” B,” page 293, shows that certain persons were appointed by formal order of the court to divide the slaves of which Francis Coleman died seized, among his heirs and among other heirs the following names appear: Covington Coleman, Whitehead Coleman, America Coleman, Richard Coleman, Elizabeth G. Coleman, Robert S. Coleman, Francis Coleman, N. C. Coleman, Harriet Coleman.
It is respectfully recommended that the record be returned to the Commission with direction to ascertain, if possible, whether Harriet Henry and her brothers and sisters claimed to be of Choctaw Indian blood and whether her father and grandfather claimed that they were of Choctaw Indian blood, and that the same information be obtained concerning R. L. Coleman, his brothers and sisters, father, and grandfather, also that the names of the brothers and sisters of Richard B. Coleman be ascertained. Very respectfully,
A. C. Tonner, Acting Commissioner.
Office Of The Secretary
Washington, D. C., March l5, 1906
The Commissioner To The Five Civilized Tribes,
Muscogee, Ind. T.
SIR: On March 27, 1905, the Department, following the approved opinion of the Assistant Attorney-General of March 17, 1905, affirmed the decision rendered August 8, 1904, by the majority of the Commission to the Five Civilized Tribes in the matter of the application of Richard B. Coleman et al. for enrollment as citizens of the Choctaw Nation and directed the Commission to enroll the persons in said case claiming enrollment by blood.
On April 21, 1905, a motion was filed by the attorneys for the Choctaw and Chickasaw nations requesting a reconsideration of said opinion of March 17, 1905. This motion was denied September 29, 1905, in a letter which was pre pared in the office of the Assistant Attorney-General. The action so taken was intended merely as an interlocutory decision. (See telegram to you dated October 20, 1905.)
Upon further consideration of this case a second opinion, adverse to the contentions of the attorneys for the Choctaw and Chickasaw nations, was rendered by the Assistant Attorney-General March 10, 190G. This opinion was approved by the Department the same day, and a copy of the same is enclosed herewith.
In accordance with said opinion of March 10, 1900, the decision of the Com mission of August 8, 1904, is reaffirmed, and you are directed to enroll the applicants in the case of Richard B. Coleman et al., claiming enrollment by blood, as citizens of the Choctaw Nation. This decision is not to be construed as an interlocutory one.
Thos. Ryan, First Assistant Secretary.
Office Of The Assistant Attorney-General
Washington, D. C., March 10, 1906
The Secretary Of The Interior
SIR: I received, by reference of June 1, 1905 (I. T. D., 9871-1905), the motion of counsel for the Choctaw and Chickasaw nations for reconsideration of my opinion of March 17, 1905, in the case of Richard B. Coleman and others (I. T. D., 12430-1904) for enrollment as citizens of the Choctaw Nation. There are two grounds for the motion :
1. That as Coleman alleged one state of facts to the council of the Choctaw Nation as basis of his petition for admission to citizenship, whereas another state of facts existed, therefore his admission was procured by fraud within the meaning of the law.
2. That admission by the council, or tribal authority, of one nation alone is insufficient in case of the associated Choctaw and Chickasaw nations, and that as the Chickasaw council never concurred in Coleman s admission it was without authority of law.
Coleman originally claimed right to admission by reason of Choctaw blood, and alleged himself to be the son of Frank Coleman, who was son of John Coleman and a Choctaw wife, Chapponia, and was born in Mississippi prior to the migration. The evidence shows that he was son of Francis S. (commonly called Frank), who was born in Kentucky, son of Francis (or Frank) and his wife, Elizabeth Gordon, a white woman, native of Virginia ; that Francis was son of a Coleman whose first name is not shown, and who may have had a Choctaw wife of whom Francis may have been born ; but the lapse of time involved by adding a generation to the lineage, as stated in my former opinion herein, made the fact of Coleman’s claim of Choctaw descent improbable.
I am, however, of opinion that this does not prove that applicant perpetrated a fraud upon the Choctaw council. There was no attempt at proof that Coleman knew that the line of descent alleged was not true, nor yet that he asserted the claim without belief of its truth or in reckless disregard of its truth. There was no proof of a scienter. In Ming et al. v. Wollfolk (116 U. S., 599, (502), the court quote and approve the rule laid down in Watson v. Poulson (15 Jurist, 1111), that there must be proof of “the telling of an untruth, know ing it to be an untruth, with intent to induce a man to alter his condition and his altering his condition in consequence whereby he sustains damage.” This rule has had general approval in the courts. It is laid down by Pomeroy (sec. 884, Equity Jurisprudence, 2d ed.) that
No misrepresentation is fraudulent at law unless it is made with actual knowledge of its falsity or under such circumstances that the law must necessarily impute such knowledge to the party at the time when he makes it.
The lack of proof was fully considered in my former opinion herein, and I have no doubt as to the conclusion then reached and adhere thereto. Nor have I doubt upon the second contention, and deem it unnecessary to repeat the reasons then given or to enlarge thereon, as no further citation of authority to the contrary is now advanced.
The motion requests that I pass upon the competency of the testimony of Harriett, Henry, and R. L. Coleman, taken on private examination by the Commission without notice to Coleman. The evidence in question is not decisive of the case, for if it be considered as absolutely establishing every fact of which the witnesses spoke, it fails to establish fraud by R. B. Coleman, either by direct proof or by proof of such circumstances as necessarily impute to him a fraudulent design. In my opinion, however, evidence so taken can not be considered in any tribunal having regard to elementary principles of judicial conduct In The Ottawa (3 Wall., 268, 271) the court held that
Cross-examination is the right of the party against whom a witness is called, and the right is a, valuable one as a means of separating hearsay from knowledge, error from truth, opinion from fact, and inference from recollection, and of testing the intelligence, memory, impartiality, truthfulness, and integrity of the witness.
Greenleaf on Evidence (I6th ed., sec. 446), citing Starkie’s Evidence (vol. 1, p. 160), says:
Cross-examination has been justly said to be one of the principal, as it certainly is one of the most efficacious, tests which the law has devised for the discovery of truth.
In Mann v. Huk (3 L. D., 452, 453-454), Secretary Lamar, speaking in a case wherein an attorney had instructed witnesses to refuse to answer pertinent cross- interrogatories, said :
Thus Huk was deprived of his undoubted right to cross-examine, subject to exceptions, the adverse witnesses by this high-handed and scandalous conduct of Mann s attorney, who set at defiance the rules governing the orderly administration of justice. It is not to be supposed that I will consider testimony taken under such circumstances as these, but rather that it should be discarded as unworthy of belief, because the protestant, speaking through the mouth of his attorney, was unwilling to submit his witnesses and himself to the test of cross-examination.
A meritorious and honest cause is seldom injured by cross-examination of an honest witness adduced to testify in its support. Privy examination of wit nesses is abhorrent to the elementary principles of justice as conceived of among English-speaking people, and the toleration of such practice would so tend to subvert all safeguards of property rights, liberty, and life that statements made by witnesses examined without notice to the person whose rights would be thereby affected and without opportunity to such party to confront and interrogate them should never be admitted to a place in the record. If admitted they are not competent and should be wholly disregarded. Very respectfully,
Frank L. Campbell, Assistant Attorney-General.
Approved March 10, 190G.
E. A. Hitchcock, Secretary.