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Office Of The Secretary
Washington, D. C,, April 7, 1905
Commission to the Five Civilized Tribes,
Muscogee, Ind. T.
GENTLEMEN: April 13, 1004, you transmitted the record in the matter of the Choctaw case of William C. Thompson et al. (M. C. R., 341). Consolidated with said case were the applications of several other applicants, entitled, respectively, “M. C. R., 0258, 6259, 517, 582, 516, 458, 581, 563, 310, 557, 583, and 7124.”
All of the applicants above referred to claim the right to be identified as Mississippi Choctaws; also to be enrolled upon the regular roll of Choctaws either by blood or by intermarriage.
In your decision of March 5, 1904, you held adversely to all of the applicants above as to their claims for identification as Mississippi Choctaws and for their enrollment as regular Choctaws. Reporting in the matter April 30, 1904, the Acting Commissioner of Indian Affairs recommended that your action in the matter be approved. A copy of his letter is enclosed.
Herein will be considered only the rights of the applicants in this case whose application is entitled ” M. C. R., 341.” This embraces the application of William C. Thompson for himself, for his wife, Sarah S. Thompson, for his minor nephew, William R. Thompson, and for his minor grandniece, Sarah T. Stubblefield, for enrollment as above stated. Separate letters will be written as to the other applicants in this case whose applications are entitled and numbered as indicated above.
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William C. Thompson and the other applicants claiming by blood embraced in M. C. R., 341, claim descent from certain Choctaws, named, respectively, Margaret McCoy, Ann Jones, Jim Jones, and William Thompson, sr., by and on behalf of whom, it is alleged, application Was made to Colonel Ward, United States agent, Choctaw Agency, Miss., for the benefits of article 14 of the treaty of September 27, 1830, but whose applications were not received and recorded by said agent.
The Department has considered the testimony taken at the various hearings and the depositions constituting a part of the record in the case, in connection with the records of the Indian Office relative to persons who complied or attempted to comply with said article 14. From this examination the Department finds the proof insufficient to warrant the identification of any of the applicants as Mississippi Choctaws. It therefore concurs in your decision concerning their rights as such.
But these applicants also claim enrollment as Choctaws by blood or intermarriage. In this connection it is noted that pursuant to an act of the Choctaw legislature a citizenship commission was appointed, which acted favorably upon a petition of William C. Thompson and others for enrollment as Choctaws. The action of the commission was indorsed upon Thompson’s application as follows:
William C. Thompson, together with the names appearing on the face of the within application (Sarah S. Thompson; Arthur M. Thompson; William C. Thompson, jr.; Mary M. Thompson (now McNeese); William McNeese, intermarried; Harold McNeese; Terry Thompson Stubblefield, dead brother s daughter; Sarah T. Stubblefield, daughter of above; William R. Thompson, dead brother s son), lineal descendants of Margaret McCoy, are hereby recognized and admitted to the citizenship of the Choctaw Nation or tribe of Indians by the legally constituted Choctaw Census Commission, duly assembled at Kiowa, Ind. T., this the 8th day of October, 1890, upon the testimony of Henry Perkins. Mrs. Levina Franklin, they being enrolled Choctaw Indians by blood. The within-named parties not being present, were passed for further enrollment.
A. E. Folsom, Secretary of Census Committee.
The question as to whether William C. Thompson only is entitled to enrollment was submitted to the Assistant Attorney-General for this Department, and, in an opinion rendered March 3, 1905, a copy of which is enclosed, approved by the Department the same day, the Assistant Attorney-General held that the recognition of William C. Thompson and those included in his application of August 1, 1896, by the Choctaw committee, quoted above, was within the powers of that body; that the enrollment of said persons upon the 1890 census roll pursuant to such recognition as not without authority of law or by fraud; that the Commission to the Five Civilized Tribes was in 1896 without authority to deny his enrollment, and that he was not barred by failure to appeal from said decision made in excess of the powers of the Commission.
As the facts relating to William C. Thompson are set forth fully in said opinion, it is unnecessary to make further statements herein concerning him. In accordance with said opinion, you are directed to enroll him as a citizen by blood of the Choctaw Nation.
In said opinion the Assistant Attorney-General held, further, that “such right to be heard upon the merits of their claim to Choctaw citizenship was saved, not merely to him, but to all the others embraced in his application, and then so recognized, who were living in the Territory, having the same descent.” The application of William C. Thompson includes a request for the enrollment of his wife as a citizen by intermarriage. It appears that she has resided with him as his wife in the Indian Territory and in the Choctaw-Chickasaw country since his removal thereto in 1887. There is no question as to the legality of their marriage. Her name appears in the decree of the Choctaw committee of October 8, 1896, quoted above, also upon the Choctaw census roll of 1896, whereon it was placed by the revisory committee in January, 1897, opposite No. 15121. She is therefore considered entitled to enrollment as a Choctaw by intermarriage, and you are directed to enroll her as such.
The third person included in application M. C. K. 341 is Sarah T. Stubblefield. It appears that this applicant was born about the year 1895. She is a grandniece of William C. Thompson and resides with him in the Indian Territory. Her name appears in the decree of the Choctaw committee of October 8, 1896, and upon the 1896 Choctaw census roll opposite No. 11815, whereon it was placed by the revisory committee in January, 1897. You will place her name upon the final roll of the Choctaw Nation as a citizen by blood.
The fourth person included in M. C. R. 341 is William R. Thompson. This applicant is the son of Arthur Thompson, deceased, who was a brother of William C. Thompson, the principal applicant herein. The said William R. Thompson was born about the year 1883. It appears that he resides in the Indian Territory with William C. Thompson, and that his name is included in said decree of October 8, 1896, also that it appears upon the Choctaw census roll of that year, whereon it was placed by the revisory committee in January,
1897. Under the circumstances it is considered that he is entitled to enrollment as a citizen by blood of the Choctaw Nation. You will accordingly place his name upon the final roll thereof as such.
E. A. Hitchcock, Secretary.
Office Of The Assistant Attorney-General
Washington, D. C., March 3, 1905
The Secretary Of The Interior
SIR: I received by reference of January 10, 1905, the papers in the case of William C. Thompson and others for enrollment as citizens of the Choctaw Nation, the applicants also claiming identification as Mississippi Choctaws. The reference states that:
In this case the question is presented, whether the refusal of the Commission to the Five Civilized Tribes in 1896 to enroll Thompson as a citizen by blood of the Choctaw Nation in the absence of an appeal was final. It is alleged that notice was not given him by the Commission of its action.
Your opinion is requested in connection with the Thompson case as to whether, under the circumstances, William C. Thompson only is entitled to enrollment.
The record shows that August 1, 1896, William C. Thompson, claiming to be grandson of Margaret McCoy, a half-breed Choctaw intermarried with a white man, petitioned the Choctaw national council that the rights of a Choctaw citizen be granted him and his family, making reference to an earlier similar petition presented in 1879, then still unacted upon. A citizenship commission was appointed by the tribal authorities pursuant to an act of the Choctaw legislature, and the action of such commission was indorsed upon the application as follows:
William C. Thompson, together with the names appearing on the face of the within application (Sarah S. Thompson; Arthur M. Thompson; William C. Thompson, jr.; Mary M Thompson (now McNeese); William McNeese, intermarried; Harold McNeese; Terry Thompson Stubblefield, dead brother s daughter; Sarah T. Stubblefield, daughter of above; William R. Thompson, dead brother’s son), lineal descendants of Margaret McCoy, are hereby recognized and admitted to the citizenship of the Choctaw Nation or tribe of Indians by the legally constituted Choctaw Census Commission, duly assembled at Kiowa, Ind. T., this the 8th day of October, 1896, upon the testimony of Henry Perkins, Mrs. Levina Franklin, they being enrolled Choctaw Indians by blood. The within-named par ties not being present were passed for further enrollment.
A. E. Folsom, Secretary of Census Committee.
They were afterwards actually placed upon the 1896 census roll, January 6, 1897.
September 5, 1896, after making the foregoing application, and before such action thereon, William C. Thompson applied (case 38) to the Commission to the Five Civilized Tribes, which at a date not found in the record denied his enrollment, and no appeal was taken therefrom. He states that he received no notice of such action. None is shown and the circumstances are persuasive that none was received. Hearing of such action too late to take an appeal he wrote to the attorneys for the nation and under date of “5, 3, 1897,” was by letter in the record advised that “our records show you were admitted as a citizen of the Choctaw Nation and that your case has not been appealed.” This is corroborated by evidence tending further to show that he inquired of Judge Simon E. Lewis, a member of the Choctaw census revisory board, who, by direction of the tribal authorities, aided the nation s attorneys in determining what cases of admission by the Commission should be appealed, and that Lewis checked off and “O. K. ed” the Thompson case as one wherein the Commission allowed enrollment, and the nation would not appeal. There was evident misapprehension, and those representing the nation, as well as the applicant, supposed that the Commission allowed his enrollment and conceded his right, accepting that supposed decision as proper.
The facts respecting William C. Thompson s Choctaw descent and basis of his claim do not seem to be controverted, and are that Margaret McCoy, a half-breed Choctaw, married a white man, Thompson, of whom was born William Thompson. Jim Jones, a half-breed Choctaw, married and had a daughter. Ann, who married James Mangum, of whom was born Elizabeth Mangum. William Thompson, in Mississippi, married Elizabeth Mangum, and after birth of a son, Arthur F., the family moved to the Choctaw Nation, Indian Territory, where William C. Thompson was born, February 6, 1839. August 31, 1840, William died, a recognized citizen of the Choctaw Nation. His wife died within a week of the same date. The orphaned children were taken by a grandfather back to Mississippi, where they lived until 1857, when William C., 18 years old, returned to the nation and lived eight months with his grandmother, Margaret McCoy, and uncle, Dickinson Frazier, governor of the Choctaw Nation, being fully recognized as their kinsman and a Choctaw by blood. He returned, then, to Mississippi, remained until the rebellion, went to Texas and lived there until 1887, when he removed to the Choctaw Nation, occupied and improved Indian lands without objection as an intruder, and has lived there ever since. He is not identified as on any rolls until the census roll of 1896.
Thompson therefore was a Choctaw by blood, born to the allegiance of the Choctaw Nation, was an actual resident of the nation for nine years prior to 1896, and was recognized by the duly constituted authorities of the Choctaw Nation October 8, 1896, having all legal qualification to be so recognized, and was actually entered on the 1896 census roll by the tribal authorities, authorized “to enroll all recognized citizens of the Choctaw Nation by blood, inter marriage, and adoption who are recognized as citizens of the nation under the treaties, constitution, and laws of said nation.”
June 30, 1900, the Commission held that “W. C. Thompson and his wife were admitted to be enrolled by the revisory board of the Choctaw Nation upon the 6th day of January, 1897. This enrollment was without authority of law.” March 5, 1904, the Commission, considering the application of Thompson and others descended from Margaret McCoy to be identified as” Mississippi Choctaw, upon the whole record held:
These applicants were denied citizenship in the Choctaw Nation by this Commission under the provisions of the act of Congress of June 10, 1896, and no appeal was taken from such decision in the time prescribed by the provisions of said act.
From the testimony of the principal applicant it appears that the following applicants : William C. Thompson, sr., Sarah S. Thompson, Arthur M. Thompson, William C. Thompson, jr., Mary M. Thompson (now McNeese), and Harrold McNeese, on August 1, 1896, made application to the Choctaw council for citizenship in the Choctaw Nation, and that said application was referred to a board of commissioners appointed under an act of the Choctaw council approved September 18, 1896, and by said commission admitted to citizenship in said nation. The original application, which is filed herewith and made a part of this record, fails to show that the same was ever filed with the Choctaw council or by them referred to said commission.
The powers of said commission are set forth in section 1 of the act of the Choctaw council approved September 18, 1896, entitled “An act authorizing the appointment of commissioners, fixing their pay, and for other purposes,” and provides:
“Be it enacted by the general council of the Choctaw Nation assembled, That a commission of three citizens by blood of the Choctaw Nation in each county and three for the Chickasaw Nation shall be appointed by the principal chief immediately after the passage of this act; the commission so appointed under this act shall proceed at once to enroll all recognized citizens of the Choctaw Nation by blood, intermarriage, and adoption who are recognized as citizens of the Choctaw Nation under the treaties, constitution, and laws of said nation, and said commissioners shall make a separate roll of all intermarried citizens and of all freedmen appearing for enrollment; each member of said commission shall be able to read and write and shall, before he enters upon the duties of his office, take the oath of office prescribed in the constitution of the Choctaw Nation and in the same manner as judges of elections.”
Under the foregoing act this commission, appointed by the Choctaw council, had no authority to pass upon original applications for citizenship, being only empowered to “enroll all recognized citizens of the Choctaw Nation by blood, intermarriage, and adoption who are recognized as citizens of the Choctaw Nation under the treaties, constitution, and laws of said nation.” The foregoing applicants, whose names appear in said application, had never been recognized as citizens of the Choctaw Nation, and could not therefore come within the purview of said act.
The names of William C. Thompson (and others) having been placed thereon by a so-called board of commissioners appointed under an act of the Choctaw council approved October 30, 1896, at a time when said board had no legal existence, having been created subsequent to September 10, 1896, the time when the jurisdiction of the Choctaw Nation to entertain applications for citizenship in that tribe had expired, as provided in the act of June 10, 1896 (29 Stat. L., 321).
The evidence herein shows conclusively that the aforesaid names were placed upon the 1896 Choctaw census roll without authority of law, and should therefore be eliminated and stricken therefrom.
It is true that Thompson s original petition to the Choctaw legislature that “the rights, privileges, and immunities of the Choctaw Nation be granted” his family, “and they be enrolled with the legal citizenship of said nation,” bears thereon no filing mark of its receipt or reference by the legislature to the Com mission. The fact, however, is that the legislature provided for a commission, which was duly constituted, and authorized it to “enroll all recognized citizens of the Choctaw Nation.” In discharging such duty, the tribal committee necessarily had to pass upon what constituted recognition as a citizen and who were “recognized citizens.” The act of June 10, 1896 (29 Stat. L., 321, 339), confirmed the existing tribal rolls and authorized the Commission to the Five Civilized Tribes to hear and determine the claims of others to be added thereto. The power thus given to the Commission was not exclusive, but concurrent with the power theretofore existing in the tribal authorities as autonomous communities, and the act provided that 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 theieof.
This act clearly contemplated that application might be made to such Indian committees, and whether Thompson s application was formally presented to the Choctaw legislature and referred to such committee, or was in the first instance presented to the Choctaw committee, seems to be immaterial, and, in either case, was within the provisions of the act of Congress. Whether the requirements that ” the committee shall determine such application within thirty days from the date thereof ” was more than directory, imposing merely the duty of prompt final action, is immaterial, as the committee was constituted under an act of September 18, and its final action was October 8, 1890, necessarily within thirty days after the matter was before it. That action was favorable to the applicant and constituted full recognition of the applicant s citizenship. The act of inscription of the rolls, January 1, 1897, was merely clerical and ministerial, proper to be done at any time. The inscription upon the roll was not the final action of the committee. That was complete when the merits of the application and right of the applicant were found and declared October 8, 1896. To all legal intent the applicants were then enrolled.
The report of the Commission to the Five Civilized Tribes to the Secretary of the Interior, January 24, 1903, in the case of Bettie Lewis, states that after full investigation its conviction is that there had never, prior to June 10, 1896, been any rolls of the Choctaw and Chickasaw nations which had been ratified and confirmed by the legislative bodies of those two nations or had received the approval of the chief executives and the only rolls that the Commission finds and avails itself of for ascertaining tribal recognition of Choctaw citizens are the 1885 and 1896 census and 1893 leased district rolls. It states that in the Choctaw Nation the loose practice has prevailed of permitting officers having any duty connected with tribal rolls “to withdraw them from the executive office and retain them among their personal effects.” The census roll of 1896, on which Thompson is enrolled, is thus one of the rolls used by the Commission as showing tribal recognition.
I am therefore of the opinion that the recognition of William C. Thompson and those included in his application of August 1, 1806, by the Choctaw committee was within the powers of that body, and that their entry upon the 189G census tribal roll, pursuant to such recognition, was not without authority of law or by fraud; that the Commission to the Five Civilized Tribes was in 1896 without authority to deny his enrollment, and he was not barred by failure to appeal from such decision made in excess of the powers of the Commission.
I am further of opinion that such right to be heard upon the merits of their claim to Choctaw citizenship was saved, not merely to him, but to all the others embraced in his application, and then so recognized, who were living in the Territory, having the same descent.
Very respectfully, Frank L. Campbell, Assistant Attorney-General
Approved March 3, 1905
E. A. Hitchcock, Secretary.
Office Of Indian Affairs
Washington, D. C., April 29, 1904
The honorable the Secretary Of The Interior
SIR: There is enclosed herewith a report from the Commission dated April 13, 1904, transmitting the record in the consolidated Mississippi Choctaw case of William C. Thompson et al., applicants for identification. William C. Thompson applied for the identification of himself and Sarah Thompson, his wife, and W. R. Thompson, his nephew, and Sarah T. Stubblefield, his grandniece. Tersa Thompson Stubblefield applied for the identification of herself and her five minor children Dora, Rosa, Johnnie, Bertha, and Horace Stubblefield. Minnie L. Wright applied for the identification of herself and her child, Grandville Wright. Mary M. McNeese applied for the identification of herself and her child. Herold Graham McNeese. Arthur M. Thompson applied for the identification of himself, and William C. Thompson, jr., applied for the identification of himself. Mattie Holloway applied for the identification of herself and her minor children Iva Bolensiefen, Jessie Holloway, Willie H., and Hallie Hazel Holloway. Rufus O. Thompson applied for the identification of himself, and Mary McNeese et al., Arthur M. Thompson et al., and William C. Thompson, jr., et al. claimed descent from Margaret or Marguret or Margerete or Margurett Thompson, nee McCoy, and Jim or James or Sam or Saul Jones, and Thomas Estes. Mary Jones (M. C. R., 563) claims descent from Izilla Mangrum. The applicants in M. C. R., 310, and the principal applicant and two minor applicants in 557, Winburn Jones et al. and Bryant Jones et al., claim descent from Izilla Mangrum and Jim or James or Sam or Saul Jones or Ne-sho-ba. All of the applicants in M. C. R., 583, William Starr Jones et al., claim rights as descendants or married to descendants of Jim or James or Sam or Saul Jones or Ne-she-ba. Maggie Jones, M. C. R., 357, claims descent from B. F. Durant.
Mention is also made in the record of Elizabeth Mangrum and John Thurston Thompson and Archibald Thompson. The record shows that in 189G the following named persons applied to the Commission for admission to citizenship in the Choctaw Nation in accordance with the provisions of the act of June 10, 1890, to wit: William C. Thompson, Sarah S. Thompson, Arthur M. Thompson, and William G. Thompson, in citizenship case No. 38; William G. McNeese and Harold G. McNeese, in citizenship case No. 41; W. Starr Jones, Susan Jones, Jettie May Jones, Ada Jones, and Florence Jones, in citizenship case No. 215; Bryant M. Jones, as an intermarried citizen, case No. 216; Winburn Jones, Peter N., Eslie, Tom B., Maud C., Jesse Hines, and Sallie Jones, case No. 1033.
The applicants were denied admission by the Commission and no appeal was taken from that decision. From the testimony it appears that William C. Thompson, Sarah S. Thompson, Arthur M. Thompson, William C. Thompson, jr., Mary M. Thompson (now McNeese), and Harold McNeese, in August, 1896, made application to the Choctaw council for citizenship in the nation. The application was referred to the board of commissioners appointed by the provisions of an act of the council of September 18, 1896, and the persons last named were admitted to citizenship by this board.
From the record in the case it does not appear that the original application was filed with the Choctaw council or referred by the council to the commission appointed by the act of September 18, 1896. Section 1 of the act of September 18, 1896, provides:
Be it enacted by the general council of the Choctaw Nation assembled, That a com mission of three citizens by blood of the Choctaw Nation in each county, and three for the Chickasaw Nation, shall be appointed by the principal chief, immediately after the passage of this act by the commission so appointed under this act shall proceed at once to enroll all recognized citizens of the Choctaw Nation by blood, intermarriage, and adoption who are recognized as citizens of the Choctaw Nation under the treaties, constitution, and laws of said nation, and said commissioners shall make a separate roll of all intermarried citizens and of all freedmen appearing for enrollment. Each member of said commission shall be able to read and write, and shall before he enters upon the duties of his office take the oath of office prescribed in the constitution of the Choctaw Nation, and in the same manner as judges of elections.
It will be observed that this act did not empower the commission to pass upon applications for admission to citizenship. The only power conferred upon the committee was to ” enroll all recognized citizens of the Choctaw Nation by blood, intermarriage, and adoption, who are recognized as citizens of the Choc taw Nation under the treaty, constitution, and laws of the said nation.”
The commission say in their decision that:
The names of William C. Thompson (as Wm. C. Thompson), Sarah S. Thompson (as Sarah Thompson), Sarah T. Stubblefield (as Sarah Stubblefleld), William 11. Thompson (as William Thompson), Terry Thompson Stubblefield (as Terry Thompson), Mary M. McNeese (as Mary McNeese), Harrold McNeese (as Harol McNeese), Arthur Thompson (as Arthur M. Thompson), William C. Thompson, jr. (as Wm. Thompson, jr.), Mattie Balloway (as Martha Holloway), Ivy Bolenseifen (as Ivy Halloway), Jessie Ilolloway <as .lessee Halloway), Rufus O. Thompson (as Rufus O. Thompson), Martha Louisianna Thompson (as Martha Thompson), Winburn Jones (as Winburn Jones), Peter N. Jones (as Peter Jones), Eslie Jones (as Elsie Jones), Thomas Jones (as Thomas Jones), Maude C. Jones (as Maud Jones), Jesse H. Jones (as Jesse Jones), Sallie Jones (as Sallie Jones), Mary E. O Quin (as Elza Oquinn), James Walter O Quin (as Jas. W. Oquinn), Dora E. O Quin (as Dosia E. Oquinn), and Ora May O Quin (as Osia M. Oquinn), are found upon the Chostaw census roll of 1806, at Nos. 12521, 15121, 11815, 12531, 12524, 9534, 9535, 12522, 12523, 6179, 6180, 6181, 12542, 12543, 7372, 7373, 7374, 7375, 7376, 7377, 7378, 1028, 10030, 10031, and 10032, respectively
and that they were placed thereon by a board of commissioners appointed under an act of the Choctaw council, approved October 30, 1896. Under the law at the time this board did not have jurisdiction, as the time limit within which applications for admission to citizenship could have been made expired September 10, 1896. It is believed therefore that the names above quoted were on the 1896 census roll without authority of law ; that they should be stricken therefrom, and that they are not by reason of their names being on said roll entitled to enrollment as Choctaw citizens. They, however, also claim rights to enrollment by virtue of the decision of the United States court for the southern district of the Indian Territory in the cases of Walter W. Jones v. The Choctaw Nation, and A. II. Jones et al. v. The Choctaw Nation.
From the record in this case it does not appear that these applicants were parties to either of said cases, and they are not entitled to the benefits and rights that may accrue to the parties thereto, even if the citizenship court should hereafter declare the parties in the Walter W. Jones and A. H. Jones et al. cases entitled to enrollment. The commission invites attention to the name James Jones, which appears on pages 118 and 138; the name Samuel Jones, jr., page 68, and Samuel Jones, sr., pages 76 and 125, volume 7, American State Papers, Public Lands.
The records of this Office, book 95, page 285, show that James Jones was awarded land under the nineteenth article of the treaty of 1830. He was given the NE. ¼, the SE. ¼, and the SW. ¼ of sec. 5, T. 12, R. 10 E., and it is shown he “was a half-breed.” The same record, page 185, shows that Samuel Jones was also given the following-described land under article 19 of the treaty of 1830, to wit, the SE. ¼, the SW. ¼, and the NW. of fractional sec. 19, T. 20, R. 1 W. Other records show that the above location was subsequently modified, and that Samuel Jones was finally awarded the S.½ and NE. fractional quarter and the NE.¼ and the NW. ¼ of sec. 19, T. 20, R. 1 W.
The records of the Office do not show that Samuel Jones, jr., was awarded any land under the fourteenth article or any other article of the treaty of 1830, and it does not appear, from careful examination of said records, that any per son by the name of Margaret or Marguret or Margerete or Margurett Thompson, nee McCoy, or Annie Strong, nee Thompson, or Jim or James or Sana or Saul Jones or Ne-sho-ba, or Thomas S. Estes, or Izilla Mangrum, or Elizabeth Mangruin, or 15. F. Durant, or John Thurston Thompson, or Archibald Thompson, complied or attempted to comply with the provisions of the fourteenth article of the treaty of 1830. There was a Jemmy Jones, the child of Puthkintubbee, who was awarded scrip in lieu of land, but from the record it does not seem that these applicants attempt to claim descent form him. It is evident, therefore, that the decision of the Commission adverse to the identification of the applicants herein is correct, and that it should be approved. Its approval is recommended.
A copy of the record of the Office relative to Samuel Jones and a copy of that relating to Jim Jones is enclosed herewith.
A. C. Tonner, Acting Commissioner.
Office Of The Secretary
Washington, D. C., March 16, 1906
The Commissioner To The Five Civilized Tribes,
Muscogee, Ind. T.
SIR: On March 24, 1905, the Commission to the Five Civilized Tribes was directed to enroll the applicants in the Choctaw case entitled William C. Thompson et al. (M. C. R., 341) as citizens of the Choctaw Nation. The applications embraced under the above title include those of William C. Thompson, Sarah S. Thompson, William R. Thompson, and Sarah T. Stubblefield.
Said decision was based upon the approved opinion of the Assistant Attorney-General for the Department, of March 3, 1905. Subsequently a motion for reconsideration of said decision was filed by the attorneys for the Choctaw and Chickasaw nations. This motion has been considered, and in an opinion rendered by the Assistant Attorney-General March 10, 1906, approved the same day, he adhered to his former opinion.
Accordingly the Department finds that the persons named above are entitled to enrollment as citizens of the Choctaw Nation, and you are directed to enroll them as such. The names of all of the applicants should be placed upon the rolls of Choctaws by blood, except that of Sarah S. Thompson, who should be enrolled as a citizen by intermarriage.
The other applicants included in the consolidated Choctaw case entitled William C. Thompson et al. will be the subject of subsequent letters.. A copy of said opinion of March 10, 190G, is enclosed herewith.
Thos. Ryan, First Assistant Secretary.
Office Of The Assistant Attorney-General
Washington D. C., March 10, 1906
The Secretary Of The Interior
SIR: Counsel for the Choctaw Nation filed a motion for reconsideration of my opinion of March 3, 1905, in case of William C. Thompson and others (I. T. D. H622, 4074-1905; 187-1905, etc.), applicants for enrollment as citizens of the Choctaw Nation. The ground of the motion is general, that ” the findings of fact and conclusions of law therein made and reached are erroneous and should not stand.” Counsel have been orally heard, and the. general assignment of error is narrowed to two specific contentions.
- (1) That no rolls of the Choctaw Nation existed June 10, 1896, to be confirmed by the act of that date (29 Stat, 321, 329), wherefore no member of the nation was outside the jurisdiction of the Commission in 1896, and the denial of his enrollment by the Commission in that year without appeal excludes his case from consideration by the present Commission under more recent acts continuing its powers.
- (2) That all power of the Indian authorities was in citizenship matters, by force of the act of June 10, 1896, terminated October 10, 1896, and that Thompson was not recognized as a citizen by the Choctaw authorities until in January, 1897, and such act was without authority of law.
The first contention, while in my view founded on an erroneous premise, is immaterial. Although immaterial to the present case, I deem it necessary to notice the erroneous assumption, lest silence might appear to be an assent to it.
The erroneous premise is that no rolls existed which were confirmed by the act of June 10, 1890. This is based on the supposed necessity for legislative confirmation by the action of the legislative councils of both the Choctaw and Chickasaw nations. This is a pure afterthought, begotten of expediency, when the communal property was about to be divided to the tribal members, with view to expatriating many members for benefit of others no more meritorious. The Choctaw and Chickasaw nations were autonomous, and each could deter mine its own membership, notwithstanding the affiliation or allied relation of those tribes. This was recognized by the treaty of 1866. No convention or treaty between the tribes deprived them of complete autonomy and exclusive regulation of their own citizenship and other internal affairs. Such was the practice of each nation for more than forty years before this novelty was invented and until their power was terminated by Congress. (Opinion, Richard B. Coleman, I. T. IX, 12436-1904, March 17, 1905.) There were Choctaw rolls confirmed by the act of 1896 for instance, the census roll of 1885, and probably others. In not defining what tribal rolls were confirmed, the act of June 10, 1896, confirmed all rolls compiled by tribal authority, and the act of June 7, 1897 (30 Stat. L., 8.3-84), can not operate retrospectively to undo anything done before its passage, or to vest in the Commission a jurisdiction to do before that time what at the time of its act it had no power to do. No intent to cure past acts done without authority is expressed in the act of 1897, and none can arise by more implication. The act of 1S97 must operate only prospectively from its date. The question is, however, not material to the present case, as Thompson is not identified as borne on any rolls existing June 10, 1896.
The second contention refers to the act of June 10, 1896 (29 Stat. L., 321, 339), and argues that.
It thus appears that application must have been made to the “legally constituted court or committee” within three months after June 10, 1896. In order to comply the allegation is made that the application was made to the Choctaw council on August 1, 1896, and this fact is found by the Assistant Attorney-General. The allegation is absolutely false.
The alleged falsity of the claim and of the finding in the former opinion is based on the fact that Thompson s petition, the original being in the record, while dated August 1, 1896, was addressed
To the honorable body of the senate and the house of representatives of the Choctaw Nation in general council assembled at its regular session October, 1896:
It therefore appears that there was no intention in either the minds of the applicants or their attorney that it was to be filed at any time or place except the regular session.
The constitution of the Choctaw Nation shows that the regular session assembles on the first Monday in October of each year.
The supreme legislative body of the Choctaw Nation is a continuing body. Its members hold office for two years in the senate and one year in the house, and in case of vacancies temporary appointments may be made (Art. Ill, sees. 3, 4, 5). The beginning of the official term is not expressly fixed, but an amendment, not dated, fixes the first Monday of October annually for convocation of regular sessions. As the general council is a continuing body, applications might properly be made to it when not in session. In fact, a special session was convened, and September 18, 1896, an act was passed, set out in the record and former opinion, for appointment of committees of three persons in each county ” to enroll all recognized citizens of the Choctaw Nation by blood.” As the application was addressed to a proper body at a time when it had authority to receive it, and that body recognized and acted upon it, the presumption must be that it was presented in proper time. Nofire v. United States (164 U. S., 657, 660).
The record shows that such Commission acted. Its endorsement on the back of the original application shows that the applicant s rights were recognized “this 8th day of October. The within parties not being present were passed for future enrollment.” This endorsement was signed by A. E. Folsom, secretary of the committee, who was before the Commission to the Five Civilized Tribes, and testified June 19, 1900:
Q. What was the action of your Commission as to finding whether or not the Thompson family were entitled to enrollment?
A. We enrolled the family.
Also Davis A. Homer, who had acted for Thompson in drafting his petition and was secretary of the census revisory board, and Simon E. Lewis, one of the last-named board, testified that the revisory board inscribed the W. C. Thompson family on the revised census roll January 6, 1897, so that the right of this family was not only recognized October 8, 189G, but was scrutinized and again approved by the revisory board January G, 1897.
There is thus in the evidence the original contemporary writing, showing that Thompson within the time limited by the act of June 10, 1896, applied to the tribal authorities for recognition of his right, and the testimony of two wit nesses besides Thompson to the fact that he did make such application, and that the tribal authority acted thereon before October 10, 1896, and the evidence fur there of three witnesses that the revisory board afterwards scrutinized the propriety of such action, and pursuant to it, January 6, 1897, made manual inscription of their names on the 1896 census revised roll.
Whether the Indian authorities lost power October 10, 1896, to act upon such application is not in this case material, but the provision requiring action within thirty days appears to be a directory one to insure prompt action and not a limitation upon the power.
Thompson had Choctaw blood, was a descendant of Margaret McCoy, and kinsman of Governor Dickenson Frazier, and was born in the nation to its allegiance. The Choctaw constitution contains no provision expatriating an absentee who was born to allegiance of the nation, nor is there such a provision in the statutes of the nation until the act of October 16, 1895 (Op., Long, Feb. 19, 1906). After an absence in Texas Thompson returned to the nation in 1887 and permanently remained. It was clearly his right and the duty of the Choctaw authorities that he be recognized and enrolled, and their act in so doing was not a fraud nor without authority of law.
Where two tribunals have original and concurrent jurisdiction to consider a matter it is concluded by that tribunal which first determines it. When the Choctaw authorities acted October 8, 1896, the Commission to the Five Civilized Tribes, under the act of 1896, had no further authority than the ministerial one of inscribing the family upon their roll, for they had no authority to purge the recognized citizenship of the tribes, and no legal ground of fact for such action existed had there been such authority. The Commission not having jurisdiction to exclude him at the time it assumed to do so, his failure to appeal from that void action does not prejudice his right. I therefore adhere to my former opinion herein that neither fraud nor want of authority for the applicant s enrollment is shown and that they are entitled to be enrolled.
Frank L. Campbell, Assistant Attorney-General
Approved March 10, 1906.
E. A. Hitchcock, Secretary.