Report of Secretary Ballinger, February 1910
Department Of The Interior,
Washington, February 12, 1910
Hon. Moses E. Clapp, Chairman Committee on Indian Affairs, United States Senate.
Sir: The matter of adding names to the rolls of citizenship of the Choctaw, Chickasaw, Cherokee, Creek, and Seminole Tribes of Indians, usually designated as the Five Civilized Tribes, has been the subject of considerable discussion before your committee and this department.
The work of ascertaining the membership of these tribes and making rolls thereof was begun under the act of June 10, 1896 (29 Stat., 339), which provided for applications for membership in said tribes to the commission theretofore constituted and known as the Commission to the Five Civilized Tribes, to the constituted court or committee designated by the several tribes, with the further provision that any applicant aggrieved by the decision of the tribal authority or the commission might appeal from such decision to the United States district court. This act further purported to confirm the rolls of citizenship of the several tribes as then existing.
The act of June 7, 1897 (30 Stat., 83), defined the words “rolls of citizenship” as used in the act of June 10, 1896, as meaning “the last authenticated rolls of each tribe which have been approved by the council for 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 court thereof, or the commission, under the act of June 10, 1896.” and provided that all other names appearing upon such rolls should be open to investigation for a period of six months.
The act of June 28, 1898 (30 Stat., 495), contained further provisions for making up the rolls of membership of these tribes. Like provisions are also found in the act of May 31, 1900 (31 Stat., 221), applicable to all the tribes, and in the acts of March 1, 1901 (31 Stat., 861) and of June 30, 1902 (32 Stat. 500) as to the Creek Tribe; in the act of July 1. 1902 (32 Stat. 716), as to the Cherokee Tribe; and in the act of July 1, 1902 (32 Stat.. 641), as to the Choctaw and Chickasaw Tribes. By this last act a court was constituted, afterwards known as the Choctaw and Chickasaw Citizenship Court. Other provisions, not necessary to specifically refer to, are found in the various annual Indian appropriation acts, and by the act of April 26, 1906 (34 Stat. 137), other provisions were made, and it was there declared:
That the rolls of the tribes affected by this act shall be fully completed on or before the fourth day of March, nineteen hundred and seven, and the Secretary of the Interior shall have no Jurisdiction to approve any enrollment of any per-son after said date.
Notwithstanding this declaration, that act made provision for the enrollment of a new class, that is, of children who were minors, living March 4, 1906, whose parents had been enrolled as members of any of the tribes or had applications for enrollment then pending. This materially increased the work of making up these rolls.
Complaints had been made of various rulings of this department, in enrollment cases, and May 29, 1906, after the enactment of the provision closing the rolls March 4, 1907, this department submitted to the Attorney General of the United States two cases involving disputed questions of law arising in connection with many applications for enrollment, requesting his opinion thereon. Naturally, cases coming up for consideration and involving these same questions were laid aside to await the opinion of the Attorney General. No opinion having been received, the department, January 19, 1907, by direction of the President, transmitted other cases to the Attorney General for his opinion. His opinion covering all the cases thus submitted was rendered February 19, 1907. (26 Ops. 127.)
The Attorney General held different views on some of these questions from those entertained by this department, and upon which decisions had been rendered in many cases. In the two weeks remaining for completing the rolls of citizenship an effort was made to apply the ruling of the Attorney General to cases then pending in the department and to cases which had been theretofore decided contrary to those rulings. The large number of cases thus affected, in connection with the very great number which were received from the field by the department, constituted such a great amount of work as rendered it impossible to give to each separate case that consideration which it ought to have had and would have had in the ordinary course of procedure. All cases then pending were, however, acted upon. It happened that a number of cases, which had been acted upon by the Commissioner to the Five Civilized Tribes, the successor to the commission, were forwarded to the department prior to March 4, 1907, but did not reach Washington until March 6 or later. These cases, of course, received no consideration by the Secretary of the Interior, and the applicants interested therein have not had a final adjudication of their claims.
Complaints have been made that applicants were wrongfully rejected because of the press of work before the department during the last few weeks of enrollment, because of misconstruction of the laws by the commission and by the department, because of inadequate and inequitable provisions in the laws, and in respect of the Choctaw and Chickasaw Tribes because of unwarranted decisions by the Choctaw and Chickasaw Citizenship Court. It may be assumed that there are just grounds for some of the complaints, but it is believed that as to the very large majority they have no equitable basis. The rolls as they now stand contain something over 100,000 names. In determining what names should be placed on these rolls the claims of many thousands were considered and denied. In the course of a work of such magnitude mistakes no doubt were made. The most persistent demand for reopening this work comes from parties who claim a right to recognition as members of the Choctaw and Chickasaw Tribes.
It has been suggested that the act of August 15, 1894 (28 Stat., 286, 305), be amended so as to permit all persons who are in whole or in part of Choctaw or Chickasaw Indian blood or descent and entitled to share in the common property of Choctaw and Chickasaw Indians, or who claim to be so entitled or claim to have been unlawfully denied participation in such common property, to commence the prosecution of any action in relation to their right thereto in the proper district or circuit court of the United States. You submitted draft of such a bill to the Indian Office that report might be made thereon before its introduction. It was sent to the Commissioner to the Five Civilized Tribes, who made report thereon under date of November 3, 1909. A copy of that report is herewith for your information; also a protest from the Choctaw Tribe, through its national council, against reopening the Choctaw and Chickasaw rolls, passed by said council at its regular session in October 1908. As said by the Commissioner to the Five Civilized Tribes, the enactment of such a law would operate to reopen the whole subject matter, necessitating a review of all the cases, which had been adversely decided by the United States courts, the Secretary of the Interior, and the Choctaw and Chickasaw Citizenship Court. Not only would it involve this, but it would also involve consideration of claims, which have not heretofore been presented to or considered by any of these tribunals. It is not believed that any such injustice has been done in making up these rolls as would justify the enactment of such a law.
Another proposition is to vest the Secretary of the Interior with jurisdiction to reconsider all cases wherein the claims to recognition and enrollment have been heretofore adversely decided and to receive and adjudicate new applications for enrollment. This would, like the other proposition, open up the whole subject matter, substituting the Interior Department for the courts as the reviewing tribunal.
This department, however, is not prepared to recommend that any tribunal be authorized or constituted to receive and pass upon, or to review and reconsider, all manner of applications, which have been or may be submitted by claimants seeking enrollment as citizens and freedmen of these tribes. It is believed that to do so would be unwise and inadvisable in the extreme, unjust to the tribes, and unwarranted by anything, which has been submitted by those who claim that they have been unjustly deprived of Indian citizenship. Moreover, it would undoubtedly result in much expense and final disappointment to the majority of the applicants, many of whose cases have been already adjudicated after full hearings at which claimants had ample opportunity to present and did present all the evidence, which they could educe in support of their claims. In short, the department is absolutely opposed to any action, which would be in the nature of a general reopening of the citizenship rolls of the Five Civilized Tribes.
Various suggestions have been made for legislation which it is claimed will not involve a general reopening of the enrollment work, but which will afford relief to persons whose claims are especially meritorious. These suggestions have been received from various sources and are submitted in somewhat concrete form that you may be fully advised in the premises.
It has been suggested that the Secretary of the Interior be vested with authority to reconsider and readjudicate that class of cases in which adverse action was taken by him in the interval between February 19 and March 4, 1907. In support of the claims of this class of persons it is urged that, owing to the vast amount of work which devolved upon the Secretary of the Interior at that time, many errors were made, both of fact and law, in the adjudication of the cases then pending. It is also urged that the opinion of the Attorney General of February 19, 1907, referred to above, was misunderstood and misapplied, owing to the hurry and confusion incident to that period: furthermore, that many persons whose cases had been heard upon the merits of the same and adjudicated by the Commission to the Five Civilized Tribes and by its successor in favor of said applicants were finally denied enrollment solely upon the jurisdictional grounds upon which said opinion was based. The maximum number of cases of this class in the various tribes is set forth in a letter, dated December 20, 1909, from the Acting Commissioner to the Five Civilized Tribes, copy of which is herewith.
A second class embraces those claimants whose applications were received and considered by the Commissioner to the Five Civilized Tribes prior to March 4, 1907, but which were not forwarded to the Secretary of the Interior in time for action. Briefly stated, it is claimed that these persons failed to secure enrollment through no fault of their own, but solely through delay or inadvertence, and that their rights have never been finally adjudicated. The names of these claimants and the pertinent facts connected with each case are set forth in a report rendered by the Commissioner to the Five Civilized Tribes, dated November l5, 1907, a copy of which is herewith.
A third class embraces applicants whose names appear in a list of claimants prepared in the department since March 4, 1907. This list, copy of which is inclosed, after considerable investigation in the field as well as further examination of existing records, was prepared for use as a memorandum of practically nil of the cases which had been brought to the attention of the department, which are alleged to be of unusual merit. The statements appearing in connection with the various cases are not to be taken as final findings, but merely as a record of the information thus far obtained by the department, some of which rests largely upon informal or ex parte statements. Said list also includes some persons coining within the other classes. Some of the applicants of this class were identified as Mississippi Choctaws a few days or weeks prior to March 4, 1907 and who, by reason of the closing of the rolls on said date, were deprived of the usual period for removing to the Choctaw-Chickasaw country and for submitting proof of residence therein. As to these Mississippi Choctaws, it has been suggested that they be allowed a limited time for removal to said country in lieu of time to which they would have been entitled under the Choctaw-Chickasaw agreement. In fact, it is understood that some of them had actually removed thereto prior to March 4, 1907.
Another class of persons claim to have been deprived of Indian citizenship because, being minors or otherwise under legal disability, no application was made for their enrollment, or if applications were made their cases were not properly followed up and presented. As to this class it has been suggested that the Secretary of the Interior be vested with jurisdiction for a brief period of time to receive applications for enrollment, with the understanding that the right to apply shall be limited strictly to persons who were minors, orphans, prisoners, or mentally incompetent during the periods provided by law or administrative regulation for the, making of applications. It has also been suggested that this class be made to include full-blood Indians who would, if enrolled, be subject to the restrictions upon the alienation of allotted lands.
It has been suggested that an investigation be made, to be based mainly on existing records as to the Indian rights of all applicants who were, parties to rejected cases where the degree of Indian blood alleged was one-fourth or more. In support of the claims of persons of this class it is urged that their right to enrollment was denied upon technical or jurisdictional grounds; for example, that application for their enrollment was not received in due time or that they were denied enrollment merely because their names could not be identified upon the defective rolls which were prepared in past years by tribal authorities. In connection with this class it may tie of assistance to note that the records of the Commissioner to the Five Civilized Tribes show that the number of rejected cases in the Choctaw and Chickasaw Nations was 8,810, and that the number of such cases in which the heads of families claim to have one-fourth or more Indian blood was less than 6 per cent, while the number of cases where such heads of families claim to have one-half Indian blood or more was less than 4 per cent. The number of such cases in the other tribes was much less than in the Choctaw and Chickasaw Nations.
Presumably because of the complaints received, my predecessor sent Joseph W. Howell, an assistant attorney in this department, to the field to make an examination to ascertain facts that might be of assistance in considering the question of reopening the rolls of these tribes. Mr. Howell’s report was submitted to Secretary Garfield March 3, 1909, and on the same day he wrote you as follows:
Since the conference had with you regarding the question of a law providing for the reopening of the rolls of the Five Civilized Tribes for the purpose of considering certain classes of eases. Mr. Howell has put in writing the information, which he obtained while in Oklahoma.
This material has just reached me hence it is utterly impossible to give it any close attention before tomorrow. I have, therefore, simply directed the Assistant Attorney General to have this material filed in the proper departmental files. I can neither approve nor disapprove of the findings of fact or the conclusions of law that may be expressed by Mr. Howell.
This report will be available for the information of your committee if desired.
Under date of July 3, 1009, you requested the Commissioner of Indian Affairs to furnish you a copy of that report for the purpose of having it printed. In reply thereto this department, July 26 said:
This matter is yet under consideration, no conclusion having been reached ns to what action should be taken in the premises. I suggest the inadvisability of printing the report for general distribution at this time.
A copy of that report, with exhibits referred to therein, is herewith for your information and such use as you may see fit to make of it.
The attitude of the Choctaw Tribe respecting this matter is shown in the memorial of October 1908, supra. Representatives of the other tribes are also opposed to any reopening of the rolls, at least to any greater extent than to permit a decision by the Secretary of the Interior upon the record as heretofore made up in those cases in which the Commission to the Five Civilized Tribes, or its successor, the commissioner, gave a favorable decision, but no decision was made by the Secretary, because the record reached him after the time fixed by law for closing the rolls. The tribes assert, and no doubt there is ground therefor, that many are now enrolled who have no right in law or equity, such enrollment having been procured in many instances by means of fraud and perjury. It is strenuously insisted, therefore, in behalf of the tribes that if any general legislation be enacted it contain adequate provision to enable the tribes to contest the right of those who were illegally enrolled.
In conclusion, I am constrained to believe, and therefore recommend, that the rolls be not opened up, but that proper legal authority be given to the Secretary of the Interior to place upon the rolls those Indians (about 52 in number) whose applications were approved by the Commissioner to the Five Civilized Tribes and were transmitted to Washington before the 4th of March 1907 but did not reach the department until after the rolls were closed; and. furthermore, that proper authority be given the Secretary of the Interior to examine and place upon the rolls the minor orphan children, incompetents, and Indians in incarceration whose-claims were not presented in due time for adjudication. I am informed that this class numbers about 200. No one seems to have taken the responsibility of presenting the claims of this class for consideration. They could not look after their own interests. Very respectfully,
(Signed) E. A. Ballinger, Secretary.