John Mitchell Et Al., Choctaws,
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Dawes Commission, No. 116. United States court. No. 116. Citizenship court, No. 101. Commission. No. 5014.
September 5, 1806. Application was submitted to the commission for the admission of John Mitchell, Alfred H. Mitchell, John W. Mitchell, William J. Mitchell, Robert H. Mitchell, Dochia A. Mitchell, Myrtle Lee Mitchell, Ollie Mitchell, Andrew J. Mitchell, Luella Pyburn. Milton H. Pyburn, Benjamin H. Pyburn, James B. Pyburn, Mary L. Pyburn, Emma J. Welch, Adella B. Welch, John N. Welch, Christian P. Welch, Meton Welch, David Welch as citizens of the Choctaw Nation by blood and that they be duly enrolled as such.
Accompanying the application are the following affidavits:
(a) Rachel Colbert states:
I am acquainted with John Mitchell, who is a son of David Mitchell, a white man, who married Rebecca Folsom, a Choctaw woman by blood, daughter of Ned Folsom, and that Rebecca Mitchell (nee Folsom) was the mother of John Mitchell, applicant for rights of citizenship in the Choctaw Nation. I have known them in the old nation. Cotton Gin County. I am 65 years old, I am a citizen of the Choctaw Nation and have no interest in the prosecution of this claim.
(b) The deposition of Tennessee Gardner, an old enrolled Choc-taw Indian, who stated:
John Mitchell: his mother was Beckie Folsom.
Q. She was the daughter of Ned Folsom, was she?-
A. Yes sir; old man Ned Folsom.
Q. Ned Folsom was a Choctaw by blood, was he?-
A. Old man Ned Folsom was a white man, and his wife was a half breed
Q. They lived in the old nation, did they?-
A. They lived in the old nation at Pigeon Roost.
Q. Do you know Jerry Folsom?-
A. He was his uncle.
Witness further states that John Mitchell’s mother, Rebecca, was a half-breed and that John Mitchell has a “house full of children.”
(c) T. L. Wiley states substantially the same as the above witness.
(d) The affidavit of J. J. Gardiner, stating that he was attorney for John Mitchell and family before the citizenship committee in 1892: that he presented their claim and it was allowed by the committee, and the House of Representatives in 1894 referred it back to the committee for additional evidence; that the case remained before the committee, but never was acted upon.
The statement of this witness is corroborated by the records of the Choctaw Council, which show (citizenship, cases, p. 52) that on October 20, 1892, this case was allowed by the citizenship committee.
A number of other affidavits setting out the blood and descent of the claimants from Rebecca Folsom accompany the petition.
September 19, 1890. Answer of nations filed, stating:
That the evidence is insufficient to establish claimants’ right to citizenship.
That the evidence shows that claimant has presented his application for citizenship to the Choctaw tribunal, and that said application is still pending there find has not been decided.
December 1, 1890. The commission rendered its decision in words and figures as follows, to wit: “Denied.”
February 1, 1897. Case appealed to United States court, central district, Indian Territory. The depositions of a number of witnesses were taken before a master, all-corroborating the allegations contained in ‘the original petition. No evidence was offered by the nations.
August 25, 1897. The case was heard by the court, and judgment was entered admitting John Mitchell, Andrew J. Mitchell, Milton Welch, Dosia A. Welch, Luella Pyburn, Emma J. Welch, Alfred H. Mitchell, John W. Mitchell, William J. Mitchell, Robert H. Mitchell, Docia A. Mitchell, Myrtle Lee Mitchell, Ollie Mitchell, M. H. Pyburn, James B. Pyburn, Mary L. Pyburn, Odella B. Welsh, John M. Welsh, and Christian P. Welsh as members of the Choctaw Nation by blood. (Certified copy of said judgment hereto attached.)
December 17, 1902. Judgment of United States court set aside and vacated by decree of citizenship court in “test case.”
March 9,1903. Record before commission and United States court certified to citizenship court for trial de novo.
Attorney for claimants, J. G. Rails, related by marriage to the Fulsoms.
November 15, 1903. Witnesses examined by court for claimants: Green Taylor: Rufus Garner: Sampson Garner, a full-blood Choctaw; John Mitchell; and D. D. Durant, a full blood. Witness examined for nations: J. C. Fulsom.
In addition, all the affidavits and depositions filed before the commission in 1896 and depositions taken before the United States court in 1897 were offered and objected to by counsel for the following reasons as stated:
Mr. Cornish. The nations object to the introduction of the papers referred to. As to all papers referred to as having been filed before and made use of by the Commission to the Five Civilized Tribes, except affidavits, the nations object, because they are parts of a void proceeding had before the Commission to the Five Civilized Tribes under the act of June 10, 1896, to which both nations were necessary and interested parties and wherein only one nation was served and made a party. As to affidavits filled and made use of before the Dawes Commission, they urge that they are not competent for the reason they are ex parte having been taken without notice to the Choctaw and Chickasaw Nations, the necessary and interested parties. As to all papers filed before and made use of by the United States court, except depositions, the nations object for the reason that they are parts of a void proceeding had before the United States court, wherein both nations were necessary and interested parties and to which only the Choctaw Nation was served and made a party. They object for the further reason that the cause was tried de novo In the United States court when the action of the court should have been confined to a review of the proceeding on the papers and evidence filled before the commission. As to all depositions filed before the United States court the nations object and set forth the same objections as urged In connection with affidavits filled before the Commission to the Five Civilized Tribes, and also for the reasons set forth in objections to other papers.
The nations wish to call attention to the fact that the depositions of Green W. Taylor was introduced and asked to be considered as evidence when he was present here on the stand today.
The court withheld its ruling on the objection until after the case was finally submitted. While the record does not disclose that the objection was sustained in this case, the court uniformly sustained a similar objection in all other cases. No opportunity, therefore, was afforded claimants to call witnesses for examination by this court.
Judge Adams, in rendering the decision of the court, says:
The evidence in this case shows that John Mitchell, the principal applicant (the other plaintiffs being his descendants), was born in the State of Mississippi, and that he emigrated from that State to the State of Arkansas about the year 1858, where he remained until about 13 or 14 years ago, when he moved into the Indian Territory. That Nathaniel Fulsom, who seems to be the originator of the Fulsom family, who are now Choctaw Indians, married a Choctaw woman in the State of Mississippi, and had the following children: Mollie F. Fulsom, Delia Fulsom, David Fulsom, Rebecca Fulsom, Rhoda Fulsom, and Israel Fulsom: that Mollie Fulsom married a man named Sam Mitchell, and had two children by that marriage, one of them dying In infancy, and the other, whose name was Sophia, seems to have been married three times; the first time to a man named Hancock, and then to a man named Moore, and then to a man named Tiner; that Delia married a man named Cameron and had two children named Margaret and Alex: that David married Mary Nail and had the following children: Cornelius, Henry, Loren, Simpson, Nora, David, and Rhoda: and that Rhoda. another daughter of Nathaniel Fulsom, married P. P. Pitchlyn, who was at one time principal chief of the Choctaw Nation, and a delegate to Washington; that Rebecca married n man named Black: and that Israel Fulsom married Tobitha Nail.
This accounts for tho descendants of the original Fulsom, who was a white man, and married a Choctaw woman.
The plaintiff, John Mitchell, claims to be the son of Rebecca, when the evidence shows that she married a man named Black.
I am of the opinion that these applicants have failed to produce sufficient evidence to show that they are Choctaw Indians; or, that they are descendants of such Choctaw Indians as would entitle them, under the laws and treaties, to citizenship and enrollment as Choctaw Indians.
The case, therefore, turns upon the one question as to the descent of claimants from Rebecca Fulsom: whether she married David Mitchell, claimant’s father and grandfather, or whether she married a man named Black, as held by the court.
All the testimony offered before the commission and the United States court is clear that Rebecca Fulsom married David Mitchell, father of John Mitchell, leading claimant herein. In those proceedings there was no question to the contrary. Of the six witnesses who testified before the citizenship court, five of them, who knew the Mitchells and Fulsoms in Mississippi, testified that David Mitchell married Rebecca Fulsom. Only one witness, J. C. Fulsom, who came to the Choctaw Nation, Indian Territory, in 1831, and whose principal knowledge of his own family was by tradition, “testified that Rebecca Fulsom, whose relationship to him is not shown, married a man by the name of Black. When asked: “If these people were related to you would you know it (meaning John Mitchell’s family) he answered: “The record of the Fulsoms would show it, but I never have seen it.” It was then shown that the family record of the Fulsoms had been lost, and was not in existence. It was admitted by J. C. Fulsom that he had been in the penitentiary, having been convicted of murder.
Thus the decision of the citizenship court is based upon the testimony of one witness alone, who did not profess to know the facts of his own personal knowledge, but by family tradition only. All the other testimony in the record (which is voluminous) upon this point is that Rebecca Fulsom married David Mitchell, and that John Mitchell was the issue of that marriage.
April 18, 1904. Decree was entered denying claimant’s admission to citizenship in the Choctaw Nation.
Applications were submitted to the commission before January 1, 1906, for the enrollment of the following newborn children: Roy Addus Mitchell, son of Robert H. Mitchell, and Jessie Lee Mitchell and Mattie Mitchell, children of William Mitchell.
May 24, 1904. Applications denied by commission, because the parents of said children had been decreed by the Choctaw-Chickasaw citizenship court not to be citizens of the nation.
Counsel for claimants respectfully submit that those persons admitted by judgment of the United States court in 1897, and their children for whose enrollment applications were duly made to the commission within the time required by law, should be enrolled. They are: John Mitchell, Andrew J. Mitchell, Milton Welsh, Dosia A. Welsh, Luella Pyburn, Emma J. Welsh, Alfred H. Mitchell, John W. Mitchell, William J. Mitchell, Robert H. Mitchell, Docia A. Mitchell, Myrtle Lee Mitchell, Ollie Mitchell, M. H. Pyburn, James B. Pyburn, Mary L. Pyburn, Odella B. Welsh, John M. Welsh, Christian P. Welsh, Roy Addus Mitchell, Jessie Lee Mitchell, Mattie Mitchell.
Walter S. Field.
Copy of Order of Court
United States Of America.
Indian Territory, Central District, ss:
In the United States court in the Indian Territory, central district, at a term thereof begun and held at South McAlester, in the Indian Territory, on the 25th day of August A. D. 1897.
Present, the Hon. William H. H. Clayton, Judge of said court.
The following order was made and entered of record, to wit:
John Mitchell et al. v. Choctaw Nation. 116. Judgment.
On this day this cause came on to be heard, whereupon the plaintiffs and defendants announced ready for trial, and the court having heard the evidence and argument of counsel finds the issues in favor of the plaintiffs herein, and finds that the plaintiffs. John Mitchell, Andrew J. Mitchell. Milton Welsh, Dosia A. Welsh, Luella Pyburn, Emma J. Welch, Alfred H. Mitchell, John W. Mitchell, William J. Mitchell, Robert H. Mitchell, Docia A. Mitchell, Myrtle Lee Mitchell, Ollie Mitchell, M. H. Pyburn, Benj. H. Pyburn, James B. Pyburn, Mary L. Pyburn, Odella B. Welch, John M. Welsh, and Christenia P. Welch are members by blood of the Choctaw Nation, and that all of said plaintiffs are entitled to be placed upon the rolls of the members of the Choctaw Nation as such members, and entitled to all the rights, privileges, immunities, and benefits as such members.
It is therefore ordered, adjudged, and decreed that the said plaintiffs. John Mitchell, Andrew J. Mitchell. Milton Welsh, Dosia A. Welsh, Luella Pyburn, Emma J. Welch, Alfred H. Mitchell, John W. Mitchell, William J. Mitchell, Robert H. Mitchell, Docia A. Mitchell, Myrtle Lee Mitchell, Ollie Mitchell, M. H. Pyburn, Benj. H. Pyburn, James B. Pyburn, Mary L. Pyburn, Odella B. Welch, John M. Welsh, and Christenia P. Welch are members by blood of the Choctaw Nation, and that the defendant, the Choctaw Nation, recognize the said plaintiffs ;is such members in all respects, and that the Commission to the Five Civilized Tribes place the names of these plaintiffs upon the rolls as members of the Choctaw Nation as herein adjudged, and that the clerk of this court furnish to said commission a certified copy of this judgment: and that the plaintiffs have and recover of and from (he defendant all their costs herein laid out and expended, for all of which let execution issue.
The within is a true copy from the records of an order made by said court on the 25th day of August 1897.
[seal.] E. J. Fannin, Clerk.
This is to certify that I am the officer having custody of the records pertaining to the enrollment of the members of the Choctaw, Chickasaw, Cherokee, Creek, and Seminole Tribes of Indians, and the disposition of the land of said tribes, and that the above and foregoing is a true and correct copy of a “copy of order of court,” rendered on August 25, 1897, by William H. H. Clayton, judge of the United States court, central district, Indian Territory, in case No. 116. John Mitchell et al. v. Choctaw Nation.
J. Geo. Wright, Commissioner to the Five Civilized Tribes,
By W. H. Angell, Clerk in charge of Choctaw Records.
Muskogee. Okla., October 25, 1910.