Office Of The Assistant Attorney-General
Washington, D. C., December 28, 1905
The Secretary Of The Interior
SIR: I received by reference of October 10, 1905, the report from the Commissioner to the Five Civilized Tribes of September 25, 1905, stating his inability to reconcile the decisions of the Department in the Cherokee citizenship cases of Mary and Roy Strickland, March 17, 1904 (I. T. D., 934 and 21GO 1904); January 4, 1905 (I. T. D., 30201904), and May 25, 1905, and of Ora M. Bonds, nee Camp, March 25, 1903 (I. T. D., 14181903). The Commissioner states two specific points, which he asks may be referred to me for opinion, and requests instructions thereon, viz:
1. In adjudicating the right to enrollment of applicants who had not reached their majority on September 1, 1902, and who, prior to that date, had neither an actual nor a constructive residence in said nation, what distinction, if any, is to be made between said applicants admitted to citizenship by an act of the Cherokee national council, commission on citizenship, or supreme court and those admitted to Cherokee citizenship by the Dawes Commission under the act of June 10, 1896, as in case of Roy Strickland, supra?
2. In adjudicating the right to enrollment of applicants who during their minority were duly admitted to Cherokee citizenship, what distinction, if any, is to be made between those who reached their majority and removed to and permanently located in the Cherokee Nation within a reasonable time thereafter, prior to September 1, 1902, and those who on said last-mentioned date were still in their minority and had prior thereto neither an actual nor constructive residence in said nation?
As to the first request, I am unable to see that any distinction is to be made in adjudicating the application of persons who were minors September 1, 1902, between those who base their right upon admission by the tribal authorities and those who base their right upon admission of the Commission to the Five Civilized Tribes under the act of June 10, 189G (29 Stat, 321, 339). The Commission under that act was clothed with a jurisdiction in matters of citizenship applications concurrent with that of the tribal authorities, and from decisions of either tribunal there was a right of appeal to the United States courts. The tribunals both having concurrent jurisdiction of first instance, I am unable to see that the decision of either is entitled to the higher credit, there being no legislation by Congress giving to the decisions of either any greater force or collusiveness than to the other.
As to the second request, I am unable to see that any distinction is to be made between adults and minors who failed to locate permanently in the nation. While minors are excepted from operation of the act of the Cherokee national council of December 4, 1894, no such exception in their favor has been made by any act of Congress. The act of June 28, 1898 (30 Stat, 493, 503), among other things provided that “no person shall be enrolled who has not heretofore removed to and in good faith settled in the nation in which he claims citizenship.” This provision is in the nature of both a limitation and a condition precedent to the right claimed, and is similar in purpose and effect to the limitation considered by this office in the opinion of June 8, 1901, in cases of Nancy B. Smith and Lottie B. Adams. As nothing existed in the legislation of Congress exempting minors or insane persons from its operation, the limitation was held to operate upon them. The provision now under consideration is entirely analogous. It was held operative against adults by my opinions of December 20, 1903, in case of Allie Williams, and of March 12, 1904, in case of Mary L. Strickland, and, as to minors that is the necessary implication and effect of my opinion of June 15, 1905, in the case of Alice L. Owens. The act of July 1, 1902 (32 Stat, 716, 720) provided:
- SEC. 25. The roll of citizens of the Cherokee Nation shall be made as of September first, nineteen hundred and two, and the names of all persons then living and entitled to enrollment on that date shall be placed on said roll by the Commission to the Five Civilized Tribes.
- SEC. 26. The names of all persons living on the first day of September, nineteen hundred and two, entitled to be enrolled as provided in section twenty-five thereof, shall be placed upon the roll made by said Commission, and no child born thereafter to a citizen, and no white person who has intermarried with a Cherokee citizen since the sixteenth day of December, eighteen hundred and ninety-five, shall be entitled to enrollment or to participate in the distribution of the tribal property of the Cherokee Nation.
- SEC. 27. Such rolls shall in all other respects be made in strict compliance with the provisions of section twenty-one of the act of Congress approved June twenty-eighth, eighteen hundred and ninety-eight (Thirtieth Statutes, page four hundred and ninety-five), and the act of Congress approved May thirty-first, nineteen hundred (Thirty-first Statutes, page two hundred and twenty-one).
I am of opinion that this does not repeal the provisions above quoted from the act of 1898. The evident object of the act of 1902 was (1) to continue the powers of the Commission and (2) to authorize enrollment of persons entitled by the act of 1898 to be enrolled, and all children of such persons born to September 1, 1902, of which date the rolls were to be closed.
I am therefore of opinion that the rule established in the decision in the case of Mary L. Strickland and Allie Williams as to adults, and by necessary inference held applicable to children by the opinion of Alice L. Owens, is the proper one and should be followed.
Frank L. Campbell, Assistant Attorney-General
Approved December 28, 1905
Thos. Ryan, Acting Secretary