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Office Of The Secretary
Washington, D. C., April 1, 1905
Commission To The Five Civilized Tribes
Muscogee, Ind. T.
GENTLEMEN: On October 27 and 31, 1904, respectively, you transmitted the papers in the matter of the dismissal of the applications of Benjamin J. Vaughan for enrollment as a citizen by intermarriage, and for the enrollment of his children, Edward A., Grover Cleveland, and Oscar S. Vaughan as citizens by blood of the Chickasaw Nation.
The principal applicant, Benjamin J. Vaughan, claims enrollment by intermarriage with Emily Burney, a recognized citizen by blood of said nation. The other applicants herein are the children of this marriage. It is claimed on behalf of all the applicants that their names are borne upon the rolls of the Chickasaw Nation. That this is true so far as the names of the children of Benjamin J. Vaughan are concerned is seen from your report of October 11, 1904, relative to certain persons whose names appear upon the tribal rolls of the Choctaw and Chickasaw nations, concerning whom your Commission and the United States courts exercised jurisdiction under the act of Congress approved June 10, 1896 (29 Stat, 321).
On September 20, 1904, you dismissed the application of Benjamin J. Vaughan from your records, and on September 23, 1904, you took like action concerning the other applications, deeming your Commission without jurisdiction as to any of them, by reason of the opinion of the Acting Attorney-General of May 9, 1904, and the opinion of the Assistant Attorney-General for this Department in the case of Dr. Clay McCoy, dated and approved July 30, 1904.
In an opinion rendered March 24, 1905, approved by the Department the same day, the Assistant Attorney-General receded from the views expressed in the McCoy opinion, and held that the applicants herein, as well as all persons similarly situated, including McCoy, are entitled to have their cases considered upon their merits.
At the hearing of December 22, 1902, the testimony of Benjamin J. Vaughan was taken, showing that his second wife, Emily Burney, was a citizen by blood of the Chickasaw Nation, but no testimony was furnished, save the mere statement of said applicant, that his marriage to her was performed in accordance with the tribal law. Record evidence that his marriage was so performed should have been furnished or its absence satisfactorily explained. Furthermore, Mr. Vaughan states that he was married about 1882 to this Chickasaw woman, but that at the time of said marriage a former wife of his was living, from whom he claims he had obtained a divorce. It should be shown by the best evidence obtainable that Mr. Vaughan obtained a legal divorce from his first wife; other wise the benefits of citizenship would not inure to him by reason of his marriage with the said Emily Burney. It is true that the principal applicant states that he obtained a divorce, but if his statement is true, record evidence should be produced or its absence satisfactorily explained and secondary evidence furnished in lieu thereof.
It is noted that no testimony was taken concerning the other applicants herein, and that, other than certain statements appearing in the correspondence, there is no evidence showing that they are the children of Mr. Vaughan by the said Emily Burney. It therefore appears that the testimony contained in the record is insufficient to warrant the final adjudication of the case at this time. The record is therefore returned to you, with a copy of the said opinion of the assistant attorney [general] of March 24, 1005, in order that additional testimony may be taken and the case adjudicated upon its merits.
Thos. Ryan, Acting Secretary
Office Of The Assistant Attorney-General
Washington, D. C., March 24, 1905
The Secretary Of The Interior
SIR: I received, by reference of December 23, 1904, with request for my opinion thereon, the record in the applications of Benjamin J. Vaughan to be enrolled as citizen by intermarriage of the Chickasaw Nation, and of his children, Edward A., Grover C., Oscar S., and Benjamin C. (deceased November 10, 1900), to be enrolled as citizens by blood.
About 1882 Benjamin J. Vaughan was married to Emily Burney, a recognized Chickasaw citizen by blood. The record does not show that his name is found on any of the Chickasaw rolls, but July 22, 1904, the governor of the nation states in a letter that the father and first three of his children appear upon the leased district pay roll and 1890 census roll, and August 22, 1904, counsel for the nation state in a letter that their names “appear upon all the tribal rolls of the Chickasaw Nation.” September 20, 1904, in the father’s case, and September 23, 1904, in that of the children, the Commission found that November 10, 1896, the principal applicant, as citizen by intermarriage, and the first three children named, as citizens by blood, were admitted to citizenship of the Chickasaw Nation, from which decision the nation appealed to the United States district court for the southern district of Indian Territory, which affirmed the decision. December 17, 1902, the Choctaw and Chickasaw citizenship court, under act of July 1, 1902 (32 Stat, 041, 64G-G48), set aside the judgment, and no further steps of appeal or certification of the case to the citizenship court for a trial de novo were taken within the time prescribed by said act, and the Commission decided that:
In accordance with the opinion of the Acting Attorney-General, dated May 9, 1904 (I. T. D., 3824-1904), and the opinion of the Assistant Attorney-General for the Department of the Interior, dated July 30, 1904 (I. T. D., 5246-1904), the Commission is without authority to take any action of any character looking to the enrollment of (the applicants), and it is therefore hereby ordered that the application be dismissed.
November 22, 1904, the Indian Office transmitted the records, recommending affirmance of the action of the Commission.
As to the opinion of the Acting Attorney-General of May 9, 1904, it must be observed that an opinion, like the decision of a court, applies only to such facts as are predicated as the basis of such opinion or judgment. The question submitted by the Department to the Attorney-General was, whether the annulment by the citizenship court of the judgment of the United States district court in these appealed citizenship cases operated to leave the decision of the Commission appealed from in force. This necessarily assumed that the Commission itself had original jurisdiction to render, and did render, a valid decision.
The point here involved is whether the Commission in 1890 had original jurisdiction to admit or to deny citizenship to these applicants. It is the settled rule of the Department, in the case of Wiley Adams (I. T. D., 4398), May 21, 1903, and those following it, that the Commission had no jurisdiction under the act of 1896, supra, to admit to citizenship or to refuse to admit to citizenship those borne on the rolls, as the rolls were confirmed by the act, and as to such persons the Commission was without power except the ministerial one of inscribing their names on its rolls when they were identified as upon the tribal rolls.
It is also held by the Commission, and by my opinion in case of Mary Elizabeth Martin (I. T. D., 11856-1904), that intermarriage as to the white person operates under Article XXXVIII of the treaty of April 28, 1866 (14 Stat., 7059, 779), as admission to the tribe, and is the full equivalent of enrollment, so that, whether such intermarried person was enrolled or not, the Commission, in 1896, were without power to exclude them from the rolls.
It is also conclusively shown that the Choctaw and Chickasaw nations did not contend otherwise before the Attorney-General. It was stated in their brief presented and considered by the Attorney-General that:
If there are persons falling within the class to which this brief refers who had a tribal enrollment and recognition as citizens by blood of the Choctaw or Chickasaw Nation, or who have intermarried in accordance with tribal laws to citizens by blood so enrolled and recognized none of the proceedings of the Commission to the Five Civilized Tribes or the United States courts can affect or did affect their status one way or the other. Such proceedings are void as held by the Choctaw and Chickasaw citizenship court, and are not subjects of consideration as weighing either for or against a citizen applicant. As to the persons who are now applicants before the Commission to the Five Civilized Tribes for enrollment, under the act of Congress approved June 28, 1898. and later acts, their citizenship rights are to be determined upon their merits, without reference to what may or may not have been done either for or against them by void proceedings had before the Commission to the Five Civilized Tribes or the United States court under the act of June 10, 1896.We submit that the act of June 10, 1896, is itself conclusive of the correctness of this view. Furthermore, in addition to the construction which must appear from an examination of the face of the act itself, the Department of the Interior has so held in the noted Choctaw enrollment case of Wiley Adams. Under the act of June 10, 1896, the tribal rolls were confirmed (this confirmation was of course removed by the Curtis Act and does not affect the Commission in the exercise of its jurisdiction therein), and by the Wiley Adams case it is held that the act of June 10, 1896, means what it says, and that as to persons having a tribal status the Commission acquired no jurisdiction over them, and anything which may have been done thereunder either for or against them was in excess of the Commission s jurisdiction and is to be given no consideration.
The Acting Attorney-General, May 9, 1904, stated the contention, the question submitted, and his opinion, as follows:
It is now maintained by the Indian nations that it was the duty of applicants, decrees in whose favor were annulled and who desired to insist on their claims, to give notice and transfer their causes to the citizenship court, as provided by statute, and to have the same there determined. On the other hand, the applicants insist that annulment of judgments of United States courts in their favor left the action of the Commission to the Five Civilized Tribes admitting them to enrollment in force, and that they are now entitled to rely upon the same and to be recognized as citizens.In view of the foregoing facts, and to enable you to determine what course to pursue, you request my opinion ” whether the annulment of the United States court judgment affirming a favorable decision of the Commission to the Five Civilized Tribes upon an application for citizenship so far deprived the applicant of a favorable judgment as to devolve upon him the duty of causing his cause to be transferred to the Choctaw and Chickasaw citizenship court, as provided in section 31 of said act of July 1, 1902, to protest and preserve his claimed rights, or whether the annulment of the United States court judgment revived and put in force and effect the judgment of the Commission to the Five Civilized Tribes admitting such person to citizenship.I am of opinion that annulment of the United States court judgment affirming a favorable decision of the Commission to the Five Civilized Tribes upon an application for citizenship so far deprived the applicant of a favorable judgment as to devolve upon him the duty of causing his cause to be transferred to the citizenship court. I am further of opinion that annulment of the United States court judgment did not revive and put in force and effect the judgment of the Commission to the Five Civilized Tribes admitting such person to citizenship, and that enrollment by the Commission based upon such a theory would be a clear violation of the rights of the Indian nations.
It is obvious that the question here presented was not in the contention? considered by the Attorney-General, and whether the general terms of the opinion might be wide enough to cover such case, yet the opinion can not be construed to apply to or affect a case wherein the Commission in 1896 was without jurisdiction to deny citizenship to the applicant.
My opinion of July 30, 1904, in Dr. Clay McCoy (I. T. D., 5246-1904), is also cited by the Commission as authority preventing its consideration of the present cases. McCoy, a white man, April 17, 1895, in conformity to Chickasaw law, married an enrolled citizen by blood of the Chickasaw Nation, and had continuously lived with her in the nation. He applied to the Commission, and his enrollment was allowed November 20, 1890, and upon appeal of the Chickasaw Nation the decision was affirmed by the United States district court March 15, 1898. This judgment was vacated December 17, 1902, by the citizenship court under the act of July 1, 1902, supra, and no appeal was taken or certification obtained of the case to that court. After rendition of the Attorney-General s opinion of May 9, 1904, supra, the Commission, making reference thereto, held that:
In view of this recent opinion the Commission is apparently without further jurisdiction or authority in any manner to determine the application of Clay McCoy for enrollment as a citizen by intermarriage of the Chickasaw Nation. Seemingly his failure to appeal or have certified to the Choctaw and Chickasaw citizenship court the record in the case before the United States court for the southern district of the Indian Territory has so far deprived him of a favorable judgment as to prohibit his enrollment as an intermarried citizen of the Chickasaw Nation.
The Indian Office recommended that the Commission be advised that it was without authority to take action of any character looking to the enrollment of Clay McCoy or any person similarly situated. Setting out sections 27, 28, and 34 of the act of July 1, 1902, supra, I expressed the opinion that:
McCoy was clearly a person whose right was “contested” within the meaning of section 27. Whether he was or was not made party to the representative suit contemplated by sections 31, 32, 33, he had right to be made party on application, and the judgment in the action operated to annul the favorable judgment that he before had recovered.
Upon reexamination of the files referred in the case of Dr. Clay McCoy I find that neither by brief of counsel nor suggestion of the Commission, Indian Office, or letter of reference was it called to my attention that there was lack of original jurisdiction to exclude the applicant. Nor were the opinion and brief of counsel upon the question submitted to the Attorney-General then before me. I was led to assume that McCoy s case was within the question then submitted, and was controlled by the decision. That assumption was clearly erroneous in fact, and for that reason and reasons stated herein and in the case of Mary Elizabeth Martin I recede from the opinion then expressed, and am of opinion that the Commission is not precluded by the opinion of the Attorney-General of May 9, 1904, from consideration of the present cases, or those of like facts, upon their merit.
Frank L. Campbell, Assistant Attorney-General.
Approved March 24, 1905.
E. A. Hitchcock, Secretary