Mary Elizabeth Martin Decision Rendered
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Office Of The Secretary
Washington, D. C., March 30, 1905
Commission To The Five Civilized Tribes
Muscogee, Ind. T.
GENTLEMEN: February 10, 1904, you returned the record in the matter of the application of Mary Elizabeth Martin for enrollment as a citizen of the Chickasaw Nation.
This applicant is the child of Walker Martin and Sallie Moore Martin. Martin was formerly married to a Choctaw woman, and Sallie Moore to a Chickasaw man.
The applicant was denied enrollment by your Commission under the act of June 10, 1896, and no appeal was taken. In your decision of March 25, 1903, you denied her enrollment. Under date of November 19, 1904, the Acting Commissioner of Indian Affairs furnished a report in the matter, a copy of which is enclosed, recommending that your action be not approved and that the applicant be enrolled as a citizen of said nation.
The case was submitted to the Assistant Attorney-General, and in an opinion rendered March 24, 1905, approved by the Department the same day, it was stated in part as follows:
There is no evidence in the record before me to show whether applicant s parents, or either of them, were married in conformity with the tribal laws governing their respective intermarriages with their former Indian spouses, nor can such fact be certainly inferred as having been satisfactorily proved. If the applicant s parents, or either of them, were married to their former Indian spouses in conformity to law, they were, or such one of them was, at the birth a citizen by Intermarriage by force of Article XXXVIII of the treaty of 1866 (14 Stat., 779), in Indian allegiance, and the applicant was born to such allegiance and entitled to recognition and enrollment if a white child without Indian blood can be. The Commission in 1896 had no jurisdiction to deny her enrollment, and their assuming so to do was in excess of power and void, so that her failure to appeal from that decision is no bar to her right; the Commission should consider and adjudicate her case upon the merits.
In accordance with this opinion, a copy of which is enclosed, the record in the case is returned to you for further investigation. You will investigate the matter and ascertain, if possible, whether the applicant s parents were married to their former Indian spouses. in accordance with the tribal laws of the nations into which said spouses were respectively intermarried. Thereafter, you will readjudicate the case in the light of the additional testimony. The record in the case is returned, together with the other papers.
Respectfully, E. A. Hitchcock, Secretary
Office Of The Assistant Attorney-General
Washington, D. G., March 24 1905
The Secretary Of The Interior
SIR: I received by reference of December 29, 1904, with request for opinion thereon, the papers in the case of Mary Elizabeth Martin, applicant for enrollment as a citizen of the Choctaw Nation.
The applicant was born about 1891, to Walker Martin and Sallie Moore Martin, his wife, both being white intermarried citizens, the father having previously married Bettie Munroe, a Choctaw, and the mother having previously married Nelson Munroe, a Chickasaw. Both Indian spouses died prior to the marriage of applicant’s parents in 1891. It did not appear to the commission that the applicant was ever enrolled by the tribal authorities as a citizen or admitted to citizenship by the tribal authorities or by the Commission or the courts under the act of June 10, 189C (29 Stat, 321, 329). August 28, 189(5, application was made to the Commission by Mary’s father in her behalf, which, November 23, 1890, was denied, and no appeal was taken from that decision. These facts are admitted. The Commission, under the act of June 28, 1898 (30 Stat., 495, 502-503) denied her enrollment. No briefs of counsel for applicant or for the nation are in the record.
There are also transmitted for consideration with this record the report of the Commission to the Five Civilized Tribes of January 24, 1903, made in the case of Bettie Lewis respecting the custom of the Choctaw and Chickasaw nations relative to the enrollment of intermarried white persons, and the report of December 31, 1901, in case of Martha Ann Jones, stating the practice of the Commission, sanctioned by the Department, in cases of applications of inter married persons for enrollment.
The report last mentioned states that in applications for enrollment as citizens by intermarriage the practice is to allow such enrollment upon production in evidence of the tribal marriage license and certificate, showing the applicant’s marriage was in apparent conformity with the tribal law regulating intermarriage of citizens and white persons, the applicant being entitled to “citizenship under the treaties and laws of said tribes;” that in the Commission s opinion the intermarriage of a citizen and a white person, in strict conformity to tribal law, constitutes an act of admission of such white person to Indian citizenship, and that to such cases the act of May 31, 1900 (31 Stat, 221, 236), in the Commission’s opinion, does not apply.
The report of January 24, 1903, in case of Bettie Lewis, above mentioned, is to the effect that the Commission has never been furnished any authenticated rolls of citizens of the Choctaw and Chickasaw tribes and it has no possession or knowledge of any rolls of their citizens made during or prior to 1885 and the Commission has never been furnished any roll prior to the leased district payment roll of 1893, which the Commission uses, together with the 1896 census roll, as the basis for identification of applicants. The Commission, at considerable length, state their correspondence with the executives of these tribes and its own efforts of investigation. The principal chief of the Choctaw Nation advised the Commission July 17, 1897, that he had refused to approve the last revised roll made in accordance with an act of council (October, 189(5), because he is satisfied there are some names thereon ” that have been registered through fraud or misrepresentation.” The governor of the Chickasaw Nation, July 22, 1897, stated that “we have only one authenticated roll of citizens, and that is the one approved by the legislature in 1896.” The Commission also mention having discovered and obtained from individual memoranda rolls made by Commissioners Ieshatubby and Maytubby of Choctaw Indians residing in the nation and states that it had been the practice of tribal officials charged with any duty in connection with tribal rolls to withdraw them from the executive offices when necessary and to retain them among their personal effects.
The Commission states its clear conviction to be:
That there had never, prior to the approval of the act of Congress of June 10, 1890, been any rolls of the citizens of the Choctaw and Chickasaw nations which had been ratified and confirmed by the legislative bodies of these two nations or had received the approval of the chief executives. It is a matter of general information in said nations that the rolls made prior to that time were merely census rolls made up separately according to counties and districts by individual census takers in such counties and districts and which were never brought together or consolidated so as to form a complete roll of tribal members.
The Commission concludes by stating that as to Choctaw applicants its future findings of tribal recognition will include the rolls of 1885 and 1896 censuses, and 1898 leased district payment; as to Chickasaws the 1878 annuity (only partial), 1893 leased district, and 1896 census rolls.
There is no evidence in the record before me to show whether applicant s parents, or either of them, were married in conformity with the tribal laws governing their respective intermarriages with their former Indian spouses, nor can such fact be certainly inferred as having been satisfactorily proved. The decision may have been based upon either the supposed finality of her rejection by the Commission in 1896 without appeal therefrom, or upon the lack of identification of her name upon the rolls in possession of the Commission.
If the applicant’s parents, or either of them, were married to their former Indian spouses in conformity to law, they were, or such one of them was, at her birth a citizen by intermarriage by force of Article XXXVIII of the treaty of 18(56 (14 Stat., 779), in Indian allegiance, and the applicant was born to such allegiance and entitled to recognition and enrollment, if a white child without Indian blood can be. For the purposes of this opinion, I assume that both of applicant s parents were married to their former Indian spouses in strict con formity to Indian law and were citizens by intermarriage in the Choctaw and Chickasaw nations respectively, and that they have been, or are, under the practice of the Commission as shown in its report of December 31, 1901, supra, entitled to be and will be enrolled. The question presented is thus reduced to a single one, viz : Is the applicant barred of her clear birthright by the adverse erroneous decision of the Commission in 1896?
Under the act of June 10, 1896, supra, the Commission were:
to hear and determine the application of all persons who may apply to them for citizen ship in any of said nations, and after such hearing they shall determine the right of such applicant to be so admitted and enrolled:
That in determining all such applications said Commission shall respect all laws of the several nations or tribes, not inconsistent with the laws of the United States, and all treaties with either of said nations or tribes, and shall give due force and effect to the rolls, usages, and custom;, of each of said nations or tribes: And provided further, That the rolls of citizenship of the several tribes as now existing are hereby confirmed, and any person who shall claim to be entitled to be added to said rolls as a citizen of either of said tribes and whose right thereto has either been denied or not acted upon, or any citizen who may within three months from and after the passage of this act desire such citizenship, may apply to the legally constituted court or committee designated by the several tribes for such citizenship, and such court or committee shall determine such application within thirty days from the date thereof. The rolls so prepared by them (the Commission) shall be hereafter held and considered to be the true and correct tolls of persons entitled to the rights of citizenship in said several tribes: Provided, That if the tribe or any person be aggrieved with the decision of the tribal authorities or the Commission provided for in this act, it or he may appeal from such decision to the United States district court: Provided, however. That the appeal shall be taken within sixty days, and the judgment of the court shall be final.
That the said Commission, after the expiration of six months, shall cause a complete roll of citizenship of each of said nations to be made up from their records, and add thereto the names of citizens whose right may be conferred under this act, and said rolls shall be, and are hereby, made rolls of citizenship of said nations or tribes, subject, how ever, to the determination of the United States courts, as provided herein.
The Commission is hereby required to file the lists of members as they finally approve them with the Commissioner of Indian Affairs to remain there for use as the final judgment of the duly constituted authorities.
These powers were to admit to citizenship persons claiming such right whose right was denied or not recognized by the tribal authorities. The tribal rolls were confirmed, and the Commission was required to give due force and effect to the rolls, usages, customs, and laws of the tribes not inconsistent with the treaties with the United States and its laws. The Commission had no authority to purge the rolls nor deny citizenship to those entitled thereto under treaties and laws of the United States, or under Indian laws, usages, and customs not inconsistent therewith. Beyond admitting persons to citizenship whose rights were not recognized by the tribal authorities, their power was merely to register and enter upon their roll those whose right was recognized by the rolls, laws, usages, and customs of the tribes. It is the settled rule of the Department by the decision in the Wiley Adams and cases following it that action of the Commission under this act excluding enrolled persons and action of the courts upon appeals from the Commission in such cases was and is void for want of jurisdiction of the subject-matter.
The next act was that of June 7, 1897 (30 Stat, 83-84), which defined “rolls of citizenship” in the act of 1896, supra, to mean the last authenticated rolls of each tribe which have been approved by the council of the nation, and the descendants of those appearing on such rolls, and such additional names and their descendants as have been subsequently added, either by the council of such nation, the duly authorized courts thereof, or the Commission. All other names were open to scrutiny of the Commission, and persons borne on other than the authenticated tribal roll might be denied enrollment, such person having right of appeal to the courts.
By this act descendants of persons on the roll were defined and regarded as on the roll whereon their parents were found, whether themselves actually on such roll or not and though born after the roll was made.
The next act was that of June 28, 1898 (30 Stat, 405, 502), which 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 laws of said tribes.
This was the first act limiting the effect of a parent s enrollment to ensure to the benefit only of issue afterborn. This act also, as to the Choctaw and Chickasaw nations, dispensed with necessity of proof of tribal enrollment or recognition of an intermarried white person. The reason is apparent upon examination of the treaties with the several Five Civilized Tribes. In the treaty with the Choctaws and Chickasaws alone were intermarried whites given Indian citizenship. The foregoing provision in the act of June 28, 1898, was pursuant to Article XXXVIII of the treaty of 1866, supra, and made proof of marriage to a recognized and enrolled Choctaw or Chickasaw citizen in conformity with Indian law sufficient proof of the right of the intermarried citizen. The intermarried citizen is regarded as enrolled at the date of and by virtue of the intermarriage. This justifies the practice of the Commission stated in its report of December 31, 1901, supra.
The child, Mary Elizabeth, was therefore born to Choctaw allegiance by virtue of her father’s citizenship and to Chickasaw allegiance by virtue of her mother’s. No admission to citizenship was necessary to confer the right upon her. All the power the Commission had was to ascertain that she was born to such allegiance, and that fact being shown, they were as without jurisdiction or power to deny her enrollment as they were to deny enrollment of her parents. The act of so doing was no bar to consideration of her case when again presented. The records of the intermarriage of her parents to their former Indian spouses were, under this act, equivalent of and stood as to them respectively as their “enrollment,” and she being thereafter born to them is within the words “descendants born since such rolls were made” i. e., since that which as to each of her parents stands as the equivalent of a roll.
The next act is that of May 31, 1900 (31 Stat, 221, 236), which provides:
That said Commission shall continue to exercise all authority heretofore conferred upon it by law. But it shall not receive, consider, or make any record of any application of any person for enrollment as a member of any tribe in Indian Territory who has not been a recognized citizen thereof and duly and lawfully enrolled or admitted as such, and its refusal of such applications shall be final when approved by the Secretary of the Interior.
This is followed by the act of July 1, 1902 (32 Stat., 641, 646), which, by section 27, requires the Commission to proceed in strict accordance with the acts of June 28, 1898, and May 31, 1900, supra, with an exception not here material, which nowise affects the case.
As above shown, the applicant was, within the meaning and letter of the law, on the roll, being born to enrolled parents. Neither the Commission nor the court had, therefore, any jurisdiction to deny her enrollment, and no judge of the court in assuming a jurisdiction that it did not have can bar her of right, unless she is barred by lack of Indian blood.
This brings me to the question whether the child of white parents, citizens by intermarriage, without qualification of Indian blood, is entitled to enrollment.
In the case of E. H. Bounds et al. v. the Choctaw and Chickasaw nations, the Choctaw and Chickasaw citizenship court had before it a case wherein Bounds, a white intermarried Chickasaw, his second wife a white noncitizen, and their children were applicants for enrollment. It held him entitled, his wife not entitled, and the children not entitled. The right of Mr. Bounds was expressly based upon Article XXXVIII of the treaty of 1866, supra. The court, referring to the title conveyed to the Choctaw Nation under Article II of the treaty of September 27, 1830 (7 Stat, 333), and Article XXXVIII of the treaty of 1866, supra, said:
The grant of the Government is to the Indians and their descendants and heirs, in apt. and pointed language, in the patent and treaties before that. If this treaty designed to give intermarried, not only white persons and adopted white persons, but also their purely white descendants, any rights, why did it not declare them in 1866, in that treaty, that such further rights as claimed now were conferred by adding the words “and their heirs and descendants?
To put the interpretation asked for on this thirty-eighth section would be, in my opinion, to convict the Government of the United States of using a deception on these tribes and having an intention, without their understanding it, to bind them to turn a large part of the lands of themselves, and their descendants over to white people and their heirs. It was liberal enough to protect the individual white persons, adopted or intermarried, and the child of an Indian spouse would be protected without reference to whether its father or mother was white, so only one was white; and to say that the Indians intended to give the children of parents both white the same rights as children of Indian blood on one side had, or all Indians had, is to me absolutely incomprehensible and, in the light of history, treaties, customs, traditions, and facts, unthinkable.
There is no mention whatever of the white persons descendants rights. It was, of course, still supposed that the blood of the Indian spouse, man or woman, would protect the rights of the children and descendants of that marriage, and that being so, the fact that no rights whatever were explicitly given to their descendants shows conclusively that none except those who had Indian blood were thought of or alluded to.
It is not said that his or her “descendants” were to be “deemed” citizens. That word was ex industria left out and excluded from the treaty of 1866.
By the thirty -eighth section of the treaty of 1866, the rights of intermarried persons were definitely fixed and determined, and this section applies to all inter married white persons who had up to that time intermarried with the Choctaws and Chickasaws or who married thereafter. Whatever the rights of any inter married white person may have been before that time, they were fixed then and have never been changed since.
And as the right then given was purely given to the particular person thus “having intermarried,” etc., it can not reasonably be held, under any rule of construction applicable to Indian treaties, that the Indians of the United States Government understood or intended that any but this restricted right in favor of an individual of a particular class was ever given. The word “descendants” is not used; the words “wife or husband” are not used, even by implication, as referring to any but parties to the original marriage between white persons and Choctaw and Chickasaw Indians, either male or female.
On the other hand, the United States court, central district, Indian Territory, in the case of F. R. Robinson v. The Choctaw Nation, had before it a like case, wherein Robinson, a white intermarried citizen, as a second wife married a white noncitizen. That there was offspring of such marriage is implied. The court held:
The treaty makes every white man who may marry a Choctaw or Chickasaw woman a citizen to use the language of the last words of article 38, above set out, “in all respects as though ho was a native Choctaw or Chickasaw.” By this provision of the treaty there is no difference between a citizen by virtue of his marriage and a native Choctaw. They are to enjoy equally and alike all of the benefits of Choctaw citizenship, as well as share the burdens.Now, unless a marriage of a native Indian to a white woman, after his Indian wife shall have died, has the same effect on him that is, decitizenizes him, divests him of all title to the Choctaw lands, and deprives him of the right to live in the country the statute works an inequality, and the white man does not enjoy the same privileges as the native Indian. The citizenship is different, and the rights flowing therefrom are not the same. The one may do an act that the other can not do; the one has a privilege, that of marrying a white woman, that the other does not enjoy. The important right of un restricted selection of a wife enjoyed by the native Indian is denied the white citizen by marriage.
I therefore find that the claimant is entitled to be enrolled. I hold also that the offspring of such a marriage would be entitled to be enrolled; the father being a lawful citizen, his children would follow his citizenship, and by inheritance take any property rights he may have acquired thereby.
It does not detract from the persuasive force of the reasoning that the case may have been decided upon a record showing notice to but one of the nations. It was a judicial construction of the law pronounced by a competent court in a controversy heard. It was affirmed as to the constitutionality of the law under which the judgment was pronounced in Choctaw Nation v. Robinson, and Chickasaw Nation v. Robinson (174 U. S., 445, 472, 473). There are this diverse judicial constructions of the law.
Allegiance of birth is obtained by succession to the allegiance of the parent. This is the fundamental and universal law of all organized societies or States, and essential to their continued existence as such. The law is varied only in form as to which parent, where there is diversity of parental allegiance, fixes the inheritance of allegiance, or whether the child in such case may elect to take the allegiance of one or the other parent. In no State, so far as I am aware, has it ever been held that the offspring of a citizen is born stranger to the parents allegiance, outcast from the parents civil state, citizen of no other, merely because the parent was born to, and for some of part of its life owed, a foreign allegiance. It is not a parent’s race or blood that gives citizenship to the child, but the parents status of citizenship at the child s birth.
In the case of Bounds the citizenship court based its reasoning upon the terms of the patent and treaty of 1830 in granting the lands “to the Indians and their descendants.” The grant was not “to the Indians,” but ” to the Choctaw Nation,” “to them and their descendants.” Nothing in the grant indicated a limitation to Choctaws by blood descent. Article IV of the treaty guaranteed the Choctaw Nation self-government under its own laws, which included their own body of unwritten law, custom, as well as legislative statutes. It has been the immemorial custom of all the Indian “tribes to admit others than of their own blood to rights of citizenship by marriage and adoption. It was unnecessary to write “descendants” in Article XXXVIII of the treaty of 1866. It followed of necessity that the offspring of a citizen is itself a citizen. “Descendants” is used nowhere in the treaty of 1866, except in Article III, giving descendants of former Choctaw slaves the right of citizenship. If citizenship be not heritable except the word “descendant” is used, then by this argument the great body of the present supposed Choctaw citizens is without right, as most of those living April 28, 1866, are dead, most of those now living having been since born, and their only right to citizenship is their descent from citizens then living, but such right is not given by the treaty. It depends on the universal law of all States that descent from a citizen vests citizenship, if not under some law abjured or forfeited.
I am, therefore, of opinion that the applicant upon the facts stated was born to allegiance of either the Choctaw or the Chickasaw nation, as might be deter mined under the act of June 28, 1898 (sec. 21, 30 Stat, 503), and that as she was in legal effect on the rolls, the Commission in 1890 had no jurisdiction to deny her enrollment, and their assuming so to do was in excess of power and void, so that her failure to appeal from that decision is no bar to her right ; that she, being born after the making of those record evidences of intermarriage of her parents that are the equivalent of a roll, is within the spirit, intent, and letter of the act of June 28, 1898, their descendants “born since such rolls were made,” and that the Commission should consider and adjudicate her case upon the merits.
Frank L. Cambpell, Assistant Attorney-General.
Approved March 24, 1905.
E. A. Hitchcock, Secretary
Office Of The Secretary
Washington, D. C., December 13, 1905
Commissioner To The Five Civilized Tribes
Muscogee, Ind. T.
SIR: There is enclosed herewith a copy of the opinion of the Assistant Attorney-General of December 8, 1905, in the Choctaw enrollment case of Mary Elizabeth Martin, approved on the same day, in which he adheres to his former opinion.
Referring to your letter of September 1, 1905, relative to the case of Sarah Archerd, you are advised that the suspension ordered in that case is removed in view of said opinion.
Argument in the Archerd case was filed by Charles Von Weise, of Ardmore, Ind. T., with his letter of August 22, 1905. Advise him of the action taken. Respectfully,
Thos. Ryan, First Assistant Secretary
Office Of The Assistant Attorney-General
Washington, D. C., December 8, 1905
The Secretary Of The Interior
SIR: I received by reference of April 22, 1905, “for consideration,” the motion of counsel for the Choctaw and Chickasaw nations for reconsideration of my opinion of March 25, 1905, in the case of Mary Elizabeth Martin, applicant for enrollment as a citizen of the Choctaw Nation. (I. T. D., 11856-1901, etc.) The assignment of error is general, ” that the conclusions of law therein are erroneous and should not stand.” Counsel have been orally heard, and this general assignment in oral argument was limited to two specific contentions, viz:
1. That denial of her application by the Commission to the Five Civilized Tribes under the act of June 10, 1896, without appeal therefrom, is final and conclusive against consideration of her case by the Commission under later acts continuing its powers,
2. That the child of an intermarried white person, or of two such parents, is not entitled to enrollment.
Under the first assignment the oral argument is that, as no tribal rolls existed of such character as to be confirmed within the meaning of the acts of June 10, 1896, arid June 7, 1897 (29 Stat, 321, 329, and 30 Stat, 83, 84), her case was within the jurisdiction of the Commission in 1896. The principal chief of the Choctaw Nation, in a letter of July 22, 1897, to the Commission to the Five Civilized Tribes, declared that there is “only one authenticated roll of citizens and that is the one approved by the legislature in 1896,” and as this roll was compiled during or after September, 1896, it did not exist June 10, 1896, and was not confirmed.
The existence or not of ah authenticated roll June 10, 1896, to be confirmed is immaterial to the present case, as the applicant is not found on any tribal roll, nor does it appear that the name of either parent is found on any roll. The record merely show’s that they are intermarried whites. The citizenship court, the United States courts for Indian Territory, the Commission to the Five Civilized Tribes, and the Department all the tribunals having jurisdiction to determine the question regard the record of intermarriage of a white person to a Choctaw citizen, under Article XXXVIII of the treaty of 1866 (14 Stat., 769, 779), as having the effect and being the equivalent of an enrollment upon a confirmed roll within the intent of the act of June 10, 1896. This was conceded by counsel for the nation, in the case of Wiley Adams, decided March 20, 1903, and of Benjamin J. Vaughn and children. (Op. Mar. 24, 1905.) The same rule applies to the parents of the applicant. She was born after what was in legal intendment the enrollment of her parents upon a confirmed roll. She was not only a descendant of enrolled members of the Choctaw Nation and entitled to be enrolled under the act of June 10, 1896, but was also a descendant of such parents born after their enrollment, and was thus within the provisions of the act of June 28, 1898. (30 Stat., 495, 502.)
Counsel for the nation seem to regard this as a mere refinement of reasoning, though they did not so regard it in the case of Wiley Adams, or in that of Benjamin J. Vaughn. In the latter case Vaughn and his children, as he was an intermarried white person, were held not barred by Vaughn s failure to appeal or obtain certification of his case to the citizenship court after being deprived by its judgment in the test case of a favorable judgment rendered by the Commission and the United States court under the act of 1896. The ground for want of jurisdiction in the two cases is the same. If the opinion in Vaughn’s case, which counsel have not excepted to, be correct, the opinion in the present case (so far as affected by this question) is also correct. As to this question they must inevitably stand or fall together. If the Commission in 1896 had jurisdiction over this applicant, it also had over Vaughn and his children, and all must be excluded. If Vaughn was not barred, this applicant is not.
Counsel in argument say:
Is it not a most interesting, not to say extraordinary, spectacle that the Government’s own tribunal, at this time the Assistant Attorney-General, is endeavoring by strained and forced construction to oust the jurisdiction of a tribunal which derives its power from the same source, the great Government of the United States, and to give dignity and finality to alleged acts of the tribes, which according to the views of all who are well informed are so irregular and inaccurate, not to say in many instances corrupt and dishonest, as to merit the condemnation and rejection of all.
All of this argument that is applicable to the record of the present case is the not decorously veiled sneer. No act of the tribe affects the present case, except Article XXXVIII of the treaty of 1866, nor is there a “forced construction” or different rule applied to oust jurisdiction of the Commission in 189G of this applicant than that the same day applied in the case of Vaughn, to which counsel have not excepted. I therefore am of opinion, so far as the question of jurisdiction of the Commission in 1896 is concerned, that it was without jurisdiction to deny her enrollment and that the failure to appeal from its judgment does not prevent the consideration of her case upon its merits. The second question is therefore the decisive one.
In my former opinion herein it was said that “allegiance of birth is obtained by succession to the allegiance of the parent.” I am now of opinion that the rule so stated is accurate when considered in the light of the particular facts in the applicant s case, viz, that by Article XXXVIII of the treaty the parents by their intermarriage were accorded all the rights and were subject to all the liabilities “as though he (or she) was a native Choctaw,” and continued to the applicant s birth to be resident within the Choctaw Nation. I know of no exception to such rule, and certainly counsel have cited no adjudication wherein the child of a citizen residing within the jurisdiction to which his allegiance is due is held not to be a citizen by birth. That covers the present case. But there may be allegiance of birth other than the allegiance of the parent. Thus, the child of an alien, whose parents can not be naturalized in the country wherein they reside, may be born to the allegiance of that country and to all the rights of native citizens. Wong Kim Ark (169 U. S., 649); State v. Ah Chew (16 Nev., 50, 58); Look Tin Sing (10 Sawyer, 353); Gee Fork Sing v. United States (7 U. S., App., 27). But the child born to a citizen residing in the jurisdiction having full rights of citizenship is necessarily born to the allegiance of the parent, unless some provision of the constitution or laws of the Choctaw Nation prevents, and no such provision cited by counsel or found by me does so provide.
I therefore adhere to the opinion here inbefore rendered.
Frank L. Campbell, Assistant Attorney-General.
Approved December 8, 1905.
E. A. Hitchcock, Secretary
Office Of The Secretary
Washington, D. C., April 24, 1906.
The Commissioner To The Five Civilized Tribes
Muscogee, Ind. T.
SIR: On March 25, 1903, the Commission to the Five Civilized Tribes for warded to the Department the record in the matter of the application of Mary Elizabeth Martin for enrollment as a citizen of the Chickasaw Nation, together with its decision of the same date denying her enrollment as such.
On June 1, 1903, the Indian Office forwarded the record in said case, and after quoting certain Choctaw and Chickasaw acts in connection with article 38 of the treaty between the United States and the Choctaw and Chickasaw nations of April 28, 1866 (14 Stat, 769), expressed the opinion that if either of the parents of this minor applicant is recognized as a citizen of the Choctaw or Chickasaw Nation it is possible that she may be entitled to enrollment. In connection with this view the recommendation was made that the case be remanded to the Commission with directions to take further evidence and to advise the Department whether the name of either of the parents of the applicant appears on the Choctaw or Chickasaw rolls made by the Commission or the tribal authorities.
On June 8, 1903, following the recommendation of the Indian Office, the Department returned the record to the Commission in order that further testimony might be taken and the case be readjudicated. The record was returned to the Department with Indian Office letter of November 19, 1904, wherein it was pointed out that the father of Mary Elizabeth Martin was a recognized citizen of the Choctaw Nation, and that her mother was a recognized citizen of the Chickasaw Nation, and the recommendation was made that the applicant be enrolled as a citizen of the Chickasaw Nation, the same provisions of law being quoted as referred to above, and reference being made to a decision of the United States court for the central district of Indian Territory in the Robinson case.
All the papers in the case, including a copy of the Indian Office letter last referred to, were submitted to the Assistant Attorney-General for this Department. In an opinion rendered by him March 24, 1905, the Department was advised in part as follows:
There is no evidence in the record before me to show whether applicant s parents, or either of them, were married in conformity with the tribal laws governing their respective intermarriages with their former Indian spouses, nor can such fact be certainly inferred as having been satisfactorily proved. If the applicant’s parents, or either of them, were married to their former Indian spouses in conformity to law, they were, or such one of them was at her birth a citizen by intermarriage by force of Article XXXVIII of the treaty of 1866 (14 Stats., 779), in Indian allegiance, and the applicant was born to such allegiance and entitled to recognition and enrollment, if a white child without Indian blood can be. The Commission in 1896 had no jurisdiction to deny her enrollment, and their assuming so to do was in excess of power and void, so that her failure to appeal from that decision is no bar to her right. The Commission should consider and adjudicate her case upon the merits.
Accordingly, on March 30, 1905, following this opinion, the record was returned to the Commission to be readjudicated in the light of such additional testimony as might be taken.
On April 21, 1905, a motion was filed by the attorneys for the Choctaw and Chickasaw nations on behalf of said nations for a reconsideration of said opinion. This motion was referred to the Assistant Attorney-General, and in a second opinion relating to the case, dated and approved December 8, 1905, he adhered to his former opinion. A copy of this second opinion was furnished you under date of December 13, 1905.
The Department is now in receipt of a report relating to the case, furnished under date of February 24, 1906, by the Attorney-General to the President. In said report, after referring to a memorandum prepared by Mr. Lawrence, of the Department of Justice, in which the view was expressed relative to article 38 of the treaty of 1800, “that the fair and reasonable construction of the treaty is that a white person, by intermarriage with an Indian, acquires only personally the rights and privileges of a citizen by blood, and not the capacity of conferring citizenship upon others,” the Attorney-General said: “I do not think that the question is free from doubt, but I am convinced by Mr. Lawrence’s reasoning, which I have carefully considered, that his interpretation is the better one, and certainly it leads to much more just results.”
This report was enclosed in a letter to the Department, dated February 27, 1906, by the Secretary to the President, in which he wrote:
In the President’s judgment, without any reference to the act of Congress, it is perfectly clear that equity demands that the son of white parents who has no Indian blood in him, even though one of those parents may have been adopted into a tribe, should not be treated as an Indian.
In view of the foregoing, my approval of the opinions of the Assistant Attorney-General for this Department of March 24 and December 8, 1905, relating to the Mary Elizabeth Martin case, is revoked, and the decision of the Commission to the Five Civilized Tribes, dated March 25, 1903, is, in so far as it denies her enrollment, hereby affirmed.
In connection with this case you are referred to departmental letter of March 8, 1900, directing the suspension of all enrollment and allotment proceedings in the Mary Elizabeth Martin case and in cases similar thereto.
Respectfully, E. A. Hitchcock, Secretary