Office Of The Secretary
Washington, D. (7., February 25, 1905
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Commission To The Five Civilized Tribes
Muscogee, Ind. T.
GENTLEMEN: November 14, 1904, you transmitted report of proceedings had and additional evidence taken in the matter of the applications of Joe and Dillard Perry for their enrollment as citizens by blood of the Chickasaw Nation instead of Chickasaw freedmen.
November 26, 1904 (Land 80819), the Acting Commissioner of Indian Affairs, reporting in the matter, recommended that Joe and Dillard Perry be declared to be citizens by blood of the Chickasaw Nation, and that the Department direct the transfer of their names from the roll of Chickasaw freedmen to the roll of Chickasaws by blood. A copy of said letter is enclosed.
January 20, 1905, the Department referred your report to the Assistant Attorney-General for this Department for his opinion as to whether Joe and Dillard Perry were entitled to enrollment as citizens by blood of the Chickasaw Nation, and in an opinion therein, rendered February 21, 1905, approved by the Secretary of the Interior the same day, a copy of which opinion is herewith in closed, the Assistant Attorney-General held that Joe and Dillard Perry are entitled to enrollment as citizens by blood of the Chickasaw Nation.
In accordance with said opinion the Department holds that said applicants are entitled to enrollment as citizens by blood of the Chickasaw Nation, and you are directed to transfer the names of Joe Perry and Dillard Perry from the Chickasaw freedmen roll to the roll of Chickasaws by blood and cancel their enrollment as Chickasaw freedmen.
Respectfully, Thos. Ryan, Acting Secretary.
Office Of The Assistant Attorney-General
Washington, D. (7., February 21, 1905
The Secretary Of The Interior
SIR: I received by reference of January 20, 1905, with request for opinion thereon, the record in the cases of Joe and Dillard Perry for enrollment as citizens by blood of the Chickasaw Nation. In connection therewith my attention is directed to the decisions of the Choctaw and Chickasaw citizenship court in the cases of Molsie Butler and T. J. Minor.
Joe and Dillard Perry were born in the Chickasaw country of Eliza Perry, who was a Chickasaw freedwoman, shown by the evidence to be one-half negro, one-quarter white, and one-quarter Indian blood, born in the Choctaw country about 1874. It is not shown whether her parents were married, but both were freedmen, and her father one-half Indian, her mother one-half white. As both parents were of the freedmen class, whether they were married or not is immaterial. Eliza first married one Mose James, a Creek, without license, but by a clergyman, as she describes it, “out of the Bible” unlicensed marriage by religious ceremony. He deserted her two months later, and two years there after, hearing nothing from him, not being divorced, she took up with Charley Perry, a recognized Chickasaw citizen by blood, and they cohabited as husband and wife until after Joe was born. They were arrested for unlawful cohabitation and taken to Paris, Tex., where they were advised to marry, and did so and the prosecution was dropped. She informed the man who performed the second ceremony of the former marriage; he, learning from her the circumstances, was of opinion that it was invalid, proceeded with the ceremony. They returned to their home, were recognized in the neighborhood as husband and wife, and the second son was born. Perry spoke of Eliza as his wife, of the boys as his children, and they continued to cohabit to his death, in 1890. If the proportions of blood are rightly given, the applicants are five-eighths Chickasaw, one-quarter negro, and one-eighth white blood. The children were not recognized by the father’s relatives. Their maternal grandmother applied for and obtained their enrollment as Chickasaw freedmen, which was approved December 12, 1902, and allotments were taken for them as such. In August, 1904, application was made to transfer them to the roll of Chickasaws by blood, and September 14, 1904, the Department instructed the Commission to the Five Civilized Tribes to allow them thirty days to adduce evidence. Notice was given to both parties, and at a hearing in which both participated the above facts were elicited. Upon the facts there seems to be no controversy. Counsel on both sides have submitted briefs.
The contentions of counsel seem to be, on part of the applicants, that the marriage of applicants parents is well proven, and that the applicants have legitimate right to succession to their father, a Chickasaw citizen by blood; and, on part of the nation, that the marriage is not well proved, but that, were the proof sufficient, intermarriages of Negroes and Chickasaws are prohibited and void. Molsie Butler s case is cited, claimed to be identical, and is relied upon.
In that case the facts, as shown by a certified copy of the opinion before me, were that Molsie was born of the intermarriage, after the war of the rebellion, of Salina Mahardy, a former negro slave, and Aleck Foster, a Choctaw Indian, when no law forbade such intermarriage. Molsie was thus half negro and halt Choctaw. The court held that:
The lands embraced in what is known as the Choctaw and Chickasaw nation, in the Indian Territory, were ceded to the members of these two tribes and their descendants by the United States Government. No persons except those mentioned in the treaty were to take any part of the lands; but there is a provision in the thirty-eighth article of the treaty of I860 conferring rights upon white people who have married Choctaw or Chickasaw Indians, but there is no provision in any treaty with these tribes that I have been able to find conferring any rights upon colored persons or their descendants who may have married an Indian.
In Minor’s case the court found:
The evidence shows that Lucy Seely, the plaintiff s grandmother, was part Chickasaw and part negro that her grandfather was a full-blood Chickasaw. Consequently Sarah Seely, their daughter, and mother of the plaintiff, was more than half Chickasaw; that Sarah s husband, and plaintiff s father, T. J. Minor, sr., is a white man. Therefore the plaintiff is one-half white and more than one-quarter Chickasaw. There is no proof that his mother was ever held as a slave, and the evidence is not conclusive that her grandmother was ever so held.
There is no proof in this case that Bob Seely and Lucy were ever married, but the testimony shows they lived together as husband and wife. It is contended by the nations that the marriage at best was but a common-law marriage, and no common-law marriage was recognized in the Indian Territory until 1889, which was long after the relation of these people was terminated by the death of Bob Seely. Taking this to be true, then, if there was no marriage the children of Lucy were illegitimate, begotten by a full-blood Choctaw Indian. This court has held in a case (Althea Paul et al. v. Choctaw and Chickasaw Nations) that when there was a natural child begotten by a Chickasaw Indian on a white woman the child was entitled to enrollment as a member of the tribe by reason of the Chickasaw blood of his father.
This court is asked to follow in this case the decision heretofore rendered in the case of Molsie Butler v. The Choctaw and Chickasaw Nations, in which we held that an applicant for citizenship whose father was a Choctaw Indian and whose mother was a negro and until emancipation was a slave, was not entitled to citizenship or enrollment. That case and this are not parallel. There was no claim or proof of Indian blood on the part of the mother. She was beyond question and entirely a negro and unquestionably had been a slave. Here there is testimony that the mother was possessed of some Chickasaw blood, and it is not proven she was a slave. The legal presumption, she having some Indian blood, is in favor of her freedom, and the burden would rest on the defendants to show that the contrary was true, which they have not conclusively done.
The blood of T. J. Minor, jr., was thus shown to be one-half white, one-eighth negro, and three-eighths Choctaw. The distinction is not made on the quantum of negro, white, or Choctaw blood, but on the fact that Molsie Butler’s negro descent was from a slave grandmother, while Minor’s was presumably from a free negro woman. As Molsie was one-half Choctaw and half freedman, born of a legal marriage, the disqualifying contamination of her greater quantum of Choctaw blood was either due to the former servitude of her mother, or else the higher merit of Minor s three-sixteenths less quantum of Indian blood was due to white infusion by intermarriage. But the white intermarriage could work no rehabilitation of Choctaw blood in one of partial negro blood unless the mixed-blood spouse was entitled to be considered a Choctaw. The contamination of the greater quantum of Choctaw blood must therefore have been considered as due to the former servitude of Molsie s grandmother, not to the quantum of negro blood. This is the necessary deduction from an analysis of the two cases. No such fact is shown in the present record. There is no proof that Eliza s mother was ever a slave, and the case is therefore identical with Minor’s, except as to the quantum’s of the various bloods, the applicants here having more Indian, less white, and one-eighth more negro blood. The logical basis of the Butler and Minor decisions being, as shown, the contamination of servile descent, not of negro blood, and the meritorious blood being Indian, the present case, if decided by the rule of those cases alone, entitles the applicants to enrollment, as they have more Indian blood than Minor, and are not shown to have servile descent.
It is proper, however, here to notice that I am unable to see any basis in the treaty of 1866 or in the legislation of Congress that justifies the distinction made that descent from a former slave negro works any greater contamination of blood than descent from a free negro, and can not but regard the two decisions as irreconcilably at variance, the distinction drawn by the court unfounded, and the Butler case so shaken by that in the Minor case as to be of no weight or authority for decision of other cases, even though it may conclude the particular parties to the record.
As to the other point, I deem the marriage sufficiently proven. By section 31 of the act of May 2, 1890 (2G Stat, 81, 94-95), certain of the laws of Arkansas, and among others the laws relating to descents and distributions and to evidence and to marriages, chapters 49, 59, 103, as shown in Mansfield’s Digest of 1884, were extended to Indian Territory, saving that (ib., 98) Indian marriages theretofore contracted in accordance with tribal laws or customs were declared valid and their issue made legitimate. As to evidence or proof of marriage, it was held in Kelly s Heirs v. McGuire (15 Ark., 555) that:
Reputation or hearsay is admissible in all matters of pedigree; and so the repeated declarations of the father that he had married, and by the marriage had two children, naming them; his recognition of them as his legitimate children, their recognition of him as their father, and of each other as brother and sister; and the fact that the marriage and legitimacy of the children were known and spoken of in the family are sufficient to prove the marriage of the father and the legitimacy of the children.
It would not, however, be permissible by reputation to prove a marriage prohibited by law and incapable by any proof to be rendered valid. March 16, 1858, the Chickasaw legislature prohibited any person other than a negro from “cohabiting with a negro,” imposing penalties of fine and imprisonment for such offense. Whether this by implication should be construed to prohibit and invalidate such an intermarriage, or whether it even subjected one contracting such a marriage to the penalty, need not here be considered, as it imposed no disability of blood upon the innocent issue of such cohabitation or of such marriage. A statute of this kind can not by mere implication or construction be extended to impose upon innocent issue a contamination of blood not expressly imposed by the statute.
The treaty right was to the Choctaw and Chickasaw nations and their “descendants.” Descendants, as pointed out in the case of James W. Shirley, is a term of wider significance than heirs, or legitimate issue, and includes those springing from an ancestor, whether legitimate issue or not. The descent of the applicants is fully and indubitably shown to be from Charles Perry, a Chickasaw by blood, recognized by him and born of a union that he and Eliza evidently regarded as a lawful one, openly avowed, and by the Chickasaw Nation tolerated, which it did not compel him to abandon, or impose the penalties of its law upon him for contracting and observing. That law properly enough imposed no penalty of contamination of blood upon the innocent issue of such union. I am therefore clearly of the opinion that applicants are entitled to be transferred to the roll of Chickasaws by blood.
Frank L. Campbell, Assistant Attorney General.
Approved February 21, 1905
E. A. Hitchcock, Secretary
Office Of The Secretary
Washington, D. C., November 18, 1905
Commissioner To The Five Civilized Tribes
SIR: On April 21, 1905, there was filed, on behalf of the Choctaw and Chickasaw Nations, a motion for reconsideration of the opinion of the Assistant Attorney-General for this Department of February 21, 1905, relative to the enrollment of Joe and Dillard Perry as citizens by blood of the Chickasaw Nation.
Upon review of said opinion a second opinion was rendered by the Assistant Attorney-General November 11, 1905, approved by the Department the same day, to the effect that Joe and Dillard Perry are not entitled to enrollment as citizens by blood of the Chickasaw Nation. Said opinion is based upon section 34 of the act of July 1, 1902 (32 Stats., 641, 649).
It is further advised in said opinion that if the allotments of Joe and Dillard Perry as freedmen have been canceled, such action was erroneous, inasmuch as they were entitled to hold them until their right to enrollment as citizens was fully established, and accordingly that their allotments, if canceled, should be reinstated.
Following this opinion, the decision of the Department of February 25, 1905, based upon said opinion of February 21, 1905, is hereby rescinded, and you are directed to restore their names to the rolls of Chickasaw freedmen, and, if their allotments as Chickasaw freedmen have been canceled, to take such steps as may be necessary to secure the same to them.
A copy of said opinion of November 11, 1905, is enclosed herewith.
Respectfully, Thos. Ryan, First Assistant Secretary.
Office Of The Assistant Attorney-General
Washington, D. C., November 11, 1905
The Secretary Of The Interior
SIR: I received by reference of April 22, 1905, “for consideration,” the motion by counsel for the Choctaw and Chickasaw nations for reconsideration of my opinion of February 21, 1905, in case of Joe and Dillard Perry (I. T. D. 12092-1904) for enrollment as citizens by blood of the Chickasaw Nation. The motion is based on a general assignment of error, that “the findings of fact and conclusions of law reached are erroneous.” Counsel, upon request, have been orally heard, and the general assignment is in oral argument limited and defined to be that the application was made too late and is barred by section 34 of the act of July 1, 1902 (32 Stats., 641, 649), and by the act of May 31, 1900 (31 Stats., 22. 236).
For all purposes of the case as now presented it is conceded that the applicants are the children of Eliza Perry, who was one-quarter Indian, one-quarter white, and one-half negro; or in another part of the evidence one-half white and one-half negro, a Chickasaw freedman. Their father was Charley Perry, a recognized Chickasaw citizen by blood, but the record does not show whether his Chickasaw blood was unmixed. Assuming it to be so, the children were five-eighths Chickasaw, one-eighth white, and one-quarter negro, or one-half Chickasaw, one-quarter white, and one-eighth negro. Eliza and Charley co habited as husband and wife, and Joe was born to them March 20, 1892. After his birth, in 1892, his parents were married at Paris, Tex., when under arrest for illicit cohabitation. They returned to the nation and continued to cohabit as husband and wife until Charley’s death, February 20, 1896. Dillard was born to them May 5, 1894. The father always acknowledged the children as his own. There is in the record an admission that she was previously married, without a license, “out of the Bible,” by a clergyman, when about 15 years old, about 1889, to one Mose James, a Creek, who deserted her two months there after, and, after a lapse of two years without hearing from him, she began cohabitation with Perry. At one place in her testimony she testified that James, her first spouse, was living when she married Perry; in another that she does not know whether James, at the time she married Perry, was living or dead. She informed the officer who performed the second marriage of the first and its circumstances, and he told her that the former one was illegal for lack of a license, and performed the second marriage ceremony. I have found no Chickasaw statute, and counsel have cited none, prohibiting marriage between a Chickasaw and a negro, and the constitution, treaties, and laws of the Chickasaw Nation, published at Atoka, 1890, appear to contain no such act, though there are acts requiring record of marriages (p. 76), validating marriages irregularly celebrated before October 12, 1876 (p. 78), marriage “by mutual consent,” and those under Choctaw law prior to August 30, 1876 (p. 112), and one of October 19, 1876, amended September 24, 1887, requiring a license for marriage between a citizen and noncitizen (p. 142). I therefore am advised of no objection to the marriage of these parties, except the admission of the mother that about two years before meeting with Perry, and about four years prior to her marriage to him, she was married to James, who may have then been living, though that fact is left in doubt. Upon such facts I was, February 21, 1905, of opinion that Joe and Dillard Perry were shown to be descendants of Charley Perry, a recognized citizen of the Chickasaw Nation, born within the nation and to its allegiance.
At the time of my former opinion the question now presented by counsel for the nation while the facts raising it were contained in the record was not disused in the briefs, and failed to be considered.
Section 34 of the act of July 1, 1902, supra, so far as here material, provides that:
During the ninety days first following the date of the final ratification of this agreement, the Commission to the Five Civilized Tribes may receive applications for enrollment only of persons whose names are on the tribal rolls, but who have not heretofore been enrolled by said Commission, commonly known as “delinquents, and such infant children as may have been born to recognized and enrolled citizens on or be fore the date of the final ratification of this agreement; but the application of no per sons whomsoever for enrollment shall be received after the expiration of said ninety days.
The act, sections 72 and 73, provided for the holding of an election for ratification on part of the Indian nations, and that it should not be effective until ratified at a tribal election, and, if ratified, should operate from that date. I am advised that it was ratified by the tribes at an election held September 25, 1902, so that the ninety days limited for presentation of applications extended to include December 24, 1902.
There are distinct classes of persons provided for by section 34, the last of which are infant children born to recognized and enrolled citizens, which would include these applicants who are infants and were born to Charley Perry, during his life a recognized Chickasaw citizen. They are therefore entitled if they applied on or before December 24, 1902. The mother of the applicants testified, October, 1904, as to the date of their application, as follows:
Q. When did you first claim these children were entitled to enrollment as Chickasaw citizens by blood?
A. Last August.
Q. August of what year?
She further testified to circumstances fixed by dates of record respecting allotments, which definitely fix the date of the first assertion of their claim as being made after July 9, 1903.
In the Chickasaw Nation freedmen are not citizens, but are a class of non-citizen persons, resident within the Chickasaw Nation, to whom certain rights are granted by the nation and the Congress of the United States. Were they a class of citizens, their application would not be, within the meaning of the limitation in the act of 1902, supra, one for enrollment, but for correction of the record by their removal from one class of citizens to another class of citizens. Freedmen not being citizens of the Chickasaw Nation, the application can not be considered as one to correct the record, but to admit and enroll them into a citizenship to which they previously did not belong and their right to which the record shows had not been asserted or applied for. Their application was therefore within the limitation of section 34 of the act of 1902, supra, and was made too late.
Though this question was not presented by counsel for the nation in the former brief, it is a question as to the jurisdiction of the Commission over the subject-matter, and may be taken at any stage of the cause. It does not admit of doubt that the subject of limiting the time within which such rights must be asserted is within the power of Congress, and that its action is conclusive. I am therefore of opinion that the application must be denied.
A memorandum by counsel for the applicants refers to the judgment of the citizenship court, November 28, 1904, in case of T. J. Minor, jr. (No. 117), and states that:
I am informed that a number of transfers have been made from the freedmen roll. Its importance as a reference in the Joe and Dillard Perry case consists mainly in the fact that transfers were so made after the limit of time had expired when original applications could be made
I have examined the judgment in the Minor case, and while it does not show at what time his right to enrollment as a citizen by blood was first asserted, I infer from the nature of the jurisdiction of the citizenship court that he must have made application under the act of June 10, 1896, for enrollment as a citizen by blood, as otherwise his case could not have reached that court, for adjudication.
In the present case it does not appear that any application, or assertion of right, of these applicants for enrollment as citizens by blood was ever made until August, 1903, after December 24, 1902. If such was made under the act of 1890, or at any time prior to and including December 24, 1902, the record before me is incomplete. This opinion is based solely on the fact that no right to enrollment of these applicants as citizens by blood was asserted until after December 24, 1902.
It is stated in the brief of counsel for the applicants that their allotments as freedmen have been canceled, and that their applications to take allotments as citizens were denied. It is needless to say that such procedure, if the statement be true, was erroneous. The applicants are enrolled freedmen, and having selected allotments as such, were entitled to hold them until their right to enrollment as citizens was fully established, and their allotments, if canceled, should be reinstated.
Frank L. Campbell, Assistant Attorney-General
Approved November 11, 1905
E. A. Hitchcock, Secretary