Statistics Gathered from the Records of the Commission of the Five Civilized Tribes
(a) Choctaw and Chickasaw cases (number of applicants shown) :
Number of granted Choctaw enrollment cases 5,320
Number of persons enrolled as Choctaws by blood and intermarriage 17,899
Number of cases refused 1,750
Number of persons refused as Choctaws by blood and intermarriage 5,201
Total number of cases 7,070
Total number of persons who were applicants for enrollment as Choctaws by blood and Intermarriage 23,100
(This does not include minor and new-born Choctaws under acts of May. 3, 1905 and Apr. 26, 1906, and is estimated as nearly as may be without actual count.)
(a) Choctaw and Chickasaw cases-Continued.
Number of granted Chickasaw enrollment cases 1,800
Number of persons enrolled as Chickasaws by Blood and intermarriage 5, 707
Number of cases refused 500
Number of persons refused as Chickasaws by blood and intermarriage 1,793
Total number of cases 2,300
Total number of persons who were applicants for enrollment as Chickasaws by blood and intermarriage, 7,500
(This does not include new-born and minor Chickasaws under acts of Mar. 3, 1905, and Apr. 26, 1906, and is estimated as nearly as may be without actual count as to number of cases.)
(b) Total number of Choctaws and Chickasaws by blood and intermarriage, including minors and excluding Mississippi Choctaws: Number of Choctaws by blood, enrolled under acts of June 28. 1898, and July 1, 1902, 10,227
Number of Choctaws by blood enrolled under act of March 3, 1905, 1,583
Number of Choctaws by blood enrolled under act of April 26, 1906, 956
Total number of Choctaws by blood of all classes 18,706
Number of Choctaws by intermarriage 1,672
Total number of Choctaws 20,438
Number of Chickasaws by blood, enrolled under acts of June 28, 1898, and July 1, 1902, 5,059
Number of Chickasaws by blood, enrolled under act of March 3, 1905, 578
Number of Chickasaws by blood, enrolled under act of April 26, 1906, 331
Total number of enrolled Chickasaws by blood of all classes 5,968
Number of Chickasaws by intermarriage 648
Total number of Chickasaws 6,610
(c) Choctaw freedmen:
Number of Choctaw freedmen enrolled under acts of June 28, 1898, and July 1, 1902, 5,546
Number of Choctaw freedmen enrolled under act of April 26, 1906, 473
Total number of enrolled Choctaw freedmen 6,019
(d) Chickasaw freedmen:
Total number of enrolled Chickasaw freedmen 4,853
(e) Mississippi Choctaws:
Number of identified Mississippi Choctaws 2,534
Number of enrolled Mississippi Choctaws 1,445
Number of Mississippi Choctaws enrolled under act of March 3,1905, 11
Number of Mississippi Choctaws enrolled under act of April 26, 1906, 187
(f) Total number of cases of different kinds (number of applicants not shown) :
Approximate number of cases of Choctaws by blood and intermarriage, excluding newborns and minors, 7,070
Approximate number of cases of Chickasaws by blood and intermarriage, excluding newborns and minors, 2,300
Approximate number of granted Choctaw freedmen cases, 1,500
Approximate number of refused Choctaw freedmen cases, 164
Approximate total number of Choctaw freedmen cases, excluding minors 1,664
Approximate number of granted Chickasaw freedmen cases, 1,446
Approximate number of refused Chickasaw freedmen cases, 150
Total approximate number of Chickasaw freedmen cases, 1,596
Approximate number of granted Mississippi Choctaw cases, 916
Approximate number of refused Mississippi Choctaw cases, 6,560
Total approximate number of Mississippi Choctaw cases, 7,476
7. Percentage of rejected Choctaw cases in which the heads of families claimed one-quarter or more Choctaw Blood.
Inasmuch as the degree of Indian blood alleged was noted upon the census cards for each member of the family recorded thereon, I thought it might prove of interest and perhaps of value to ascertain what percentage of the rejected cases embraced persons who alleged an appreciable degree of Choctaw blood. I adopted the fraction of one-fourth as the standard, because persons possessing that degree of blood are as a general rule obviously and visibly Indians. The quantum of blood alleged for heads of families on 52 rejected cards, taken consecutively, appears as follows:
Heads of families alleging one thirty-second 9
Heads of families alleging three sixty-fourths 1
Heads of families alleging one-sixteenth 24
Heads of families alleging three thirty-seconds 2
Heads of families alleging one-eighth 12
Heads of families alleging three-sixteenths 1
Heads of families alleging one-fourth 1
Heads of families alleging three-fourths 1
Heads of families alleging three-fourths 1
Recapitulating, out of a total of 52 there are found to be only three heads of families who allege one-fourth or more Indian blood. The percentage of such rejected applicants would be a little under 6 per cent.
8. Percentage of Mississippi Choctaw cases involving persons of mixed blood. Mississippi Choctaw cards sometimes show one head of a family identified and the other rejected, both alleging full blood. Sometimes one head of a family was identified as a full blood and the other head and the children were denied. The card of Calvin McMillan (M. C. E. 4215) shows an instance where one parent was identified, and one parent denied together with the children. Here the wife (Mollie McMillan) was the only member of the family identified, notwithstanding there were 11 members, all of whom alleged that they were full-blood Choctaw Indians. This statement should be considered in connection with what I have said in a previous connection relative to the failure of the Commission to the Five Civilized Tribes to enroll the children of enrolled Mississippi Choctaws under the act of April 26,1906. (34 Stat., 137.)
In the adjudication of Mississippi Choctaw claims, two classes of cases were presented. The first class embraced those persons who claimed descent from Indians who were entitled to the benefits of article 14 of the treaty of September 27, 1830. (7 Stat.. 333.) There were many applicants of this class, but very few who were capable of establishing their claims, the character of the proof required being such that only people of education and means would be likely to preserve the necessary family records, or have sufficient knowledge of history to build up complete cases.
The second class of Mississippi Choctaws were full-blood Indians. These people were identified as Mississippi Choctaws, by virtue of the rule of evidence prescribed in section 41 of the act of July 31,1902. (32Stat..641.) By inspection of their census cards. I found that as a general rule, these Mississippi Choctaws were included in families, all of whom were full-blood Indians. Out of a total of 36 Mississippi Choctaw cards, I found that where one of the heads of the family was identified as a full-blood Mississippi Choctaw all of the children were so identified in 29 cases, and that in the other seven cases the children were mixed-blood Indians. The proportion of full-blood cases would therefore be to the whole number of cases as 29 to 36 or about 80 per cent. This would mean that, if the mixed-blood children of enrolled Mississippi Choctaws are to be accorded any rights whatever, either at the expense of the Choctaw Nation or of the United States, only about 20 per cent of the enrolled Mississippi Choctaw cases would have to be taken up again; but it would not amount even to 20 per cent, because a considerable number of such cases were disposed of under the act of April 26, 1906 (34 Stat.. 137). as explained above. Stating the proposition further, there were only about 1,445 Mississippi Choctaws who were finally enrolled, who must have been included within 300 to 500 cases. Therefore, there would not be more than 20 per cent of that number, or from 60 to 100 cases, of mixed-blood children. But there would not be even this number, inasmuch as 187 newborn Mississippi Choctaws, embraced, probably, in 30 to 35 families, have already been enrolled under said act of April 26, 1906.
9. Practice of the Dawes Commission respecting applications for enrollment. From the outset applications have played a very important part in enrollment work. I have referred to this fact heretofore in connection with the act of June 28, 1898, as well as subsequent acts. In view of the fact that the persons to be enrolled were wards of the Government, some of whom were burdened with minority. unsound mind, and other legal disabilities, it would seem that the burden of making application should never have been placed upon the Indians, either by act of Congress or by administrative regulation. Provisions were made in various statutes .which were construed to require applications to be made within a limited time. Strict construction of the rule relating to applications required personal appearance, at least of the head of the family. In the course of the enrollment work, however, people would contend from time to time that they had filed applications. Many such persons had, in fact, written letters to the commission and to the department and. not knowing departmental procedure thoroughly, to other persons-for example, to the Indian agent. I have even been informed by the officials of the United States court that people came frequently to them to make application. The question arose, therefore, as to what constituted an application within the meaning of the term as used in the law relating to enrollment. The index prepared by the Dawes Commission of persons who had made applications was confined to those persons who had made formal application, either in person or through some member of the family who appeared in person before some representative of the commission.
I am informed that when persons claimed to have made application by letter the commission caused an examination to be made of the index of letters received in order to test the accuracy of the claim. During the course of the enrollment work letters were frequently received by the department in which persons claimed to be entitled to enrollment. Sometimes their claims were clearly indicated as to what persons they thought were entitled. At other times their statements were vague and uncertain and disclosed only that there was a member of the family for whom enrollment was desired. These letters were ” referred to the Commission to the Five Civilized Tribes for appropriate action.” Upon receipt of such letters the commission examined its records to ascertain whether or not there was an existing application of record, but did not treat such letters as applications unless followed up by further communication or evidence. During the years 1904, 1905, and 1906 several letters were written by the department containing important instructions to the Commission to the Five Civilized Tribes designed to make the requirements regarding applications as reasonable as possible; but these instructions, as will be noted, did not issue, until after the time limits prescribed in the Choctaw and Chickasaw agreement and the Cherokee agreement for the respective applications. I have references to these cases and will cite them to you if desired.
In illustration of the commission’s attitude, however, I wish to bring to your attention the Choctaw case of Isaac Laflore et al. There the principal applicant and all or nearly all the members of his family were full-blood Indians. The commission rendered a decision adverse to the applicant, on the ground that the applications were not made within the time prescribed by law, to wit, prior to December 25, 1902. Upon reading the evidence, the department found that, as a matter of fact, the commission sent a deputy sheriff to the home of the applicants a few days prior to the expiration of the time limit, and that he found the head of the family unable to leave home and go before the Dawes Commission because of sickness. Under the circumstances the department held, in substance, that the action of the commission in sending the deputy sheriff to the home of the applicants was in itself a step looking to their enrollment, and that inasmuch as proceedings to that end had thus been instituted within the time allowed the applicants should be enrolled, it being considered immaterial whether such proceedings were instituted by the applicants or by the commission, so long as the commission had knowledge of the case and had actually taken some steps in connection with it in due time. This action was taken by the department August 5, 1905, more than a year and a half after the expiration of the time limit, during which time the commission was evidently governed by the narrow view of the law. A further question arose at a late day in the enrollment work as to what constituted an application. As was shown in the early part of this report, nearly 75,000 people, including many recognized and enrolled citizens, made application to the Commission to the Five Civilized Tribes in 1896. These applications remained in the custody of the Commission to the Five Civilized Tribes. Did such applications come within the purview of the words as used in the agreements with the various tribes? This question arose in connection with the case of Joe and Dillard Perry. Several opinions were written in this case. In the first, dated February 21, 1905, the Assistant Attorney General held that the applicants were entitled to enrollment. At that time their names were borne upon the roll of Chickasaw freedmen, and the petition was for transfer to the roll of citizens by blood of the Chickasaw Nation. Subsequently, upon motion for review, it was made to appear that no application for the enrollment of said persons as citizens by blood had been made within the time fixed by section 3-1 of the Choctaw and Chickasaw agreement. Accordingly, under date of November 11, 1905, the Assistant Attorney General held that their names could not be transferred from the freedmen roll to the roll of Chickasaws by blood. In said opinion the following language was used:
In the present ease it does not appear that any application or assertion of right of these applicants for enrollment as citizens by blood was ever made until August, 1903, after December 24, 1902. If such was made under the act of 1896, or at any time prior to and including December 24, 1902, the record before me is incomplete. This opinion is based solely on the fact that no right to enrollment of these applications as citizens by blood was asserted until after December 24, 1902. (Underscoring supplied.)
It will be observed that this opinion was based, in part, upon the assumption that there was no application filed under the act of June 10, 1890. As was subsequently shown, there was such an application on file with the Commission to the Five Civilized Tribes at the time the opinion was written. Owing to this fact, a motion for review was filed June 2, 1906, on behalf of the applications. This motion was referred to the Commissioner to the Five Civilized Tribes for report. The report called for was rendered June 26, 1906, and showed that as early as 1896 an application was made to the Commissioner to the Five Civilized Tribes for the enrollment of Joe and Dillard Perry, as citizens by blood of the Chickasaw Nation. Said report was referred to the Assistant Attorney General for the Interior Department for opinion. The latter, on September 28, 1906, held that the applicants were entitled to enrollment, in view of the fact that their application was made in 1896. Accordingly, the former action adverse to them was rescinded, and they were enrolled as citizens by blood.
After the motion for review was filed in the Perry case, the department directed the Commissioner to the Five Civilized Tribes to report in all cases whether application was made under the act of June 10, 1896, where the fact of such application, if material, was in issue.
As you will observe, these important instructions were issued about three years and a half after the expiration of the time limit for the receipt of applications under the said act of July 1, 1902. It is needless to say that all of the work performed during that period should have been transacted under a correct, rather than an imperfect, construction of the law.
The practice of the Commissioner to the Five Civilized Tribes is also shown by his action in the Chickasaw case of J. W. F. Howard (I. T. D. 5508-07). On May 29, 1905, the chairman of the commission advised Mr. Howard as follows:
In reply to your letter you are advised that it appears from our records that you were an applicant to this commission in 1896 for citizenship in the Chickasaw Nation, and your application was denied by the commission and that an appeal was taken to the United States Court for the Southern District of the Indian Territory at Ardmore. but it does not appear from our records that any action was taken in this case by said court
You are further advised that it does not appear from our records that you have since that time made application to this commission for enrollment under the act of Congress of June 28. 1898, and under the provision of the act of Congress approved July 1, 1902, the commission is now without authority to receive or consider such an application in your behalf.
This letter constituted a very important action in the case; in that it amounted to an adjudication on the part of the commission of a material question. Notwithstanding this was true, the name of the chairman of the commission was signed in a handwriting entirely different from that of the well-known writing of Mr. Tarns Bixby; nor was there anything connected with the letter to show that Mr. Bixby had authorized or passed upon it in any way.
10. Field investigation in the 15 district Indian agencies in eastern Oklahoma.-My examination of the records in the office of the Commissioner to the Five Civilized Tribes was made in order to obtain all the information possible concerning the work of enrollment and to ascertain what foundation there would be to build on in case further enrollment work should be deemed advisable; but even at Muskogee I found that I was not near enough to actual conditions and that I was not coming in contact with the people I desired to reach. In planning how best to accomplish my purpose I decided to visit the office of each of the district Indian agencies in eastern Oklahoma. As there were 15 such offices I felt reasonably certain that I would be able to secure information from a sufficient number of the local agents to be fairly well informed concerning the situation as a whole. I arranged an itinerary and requested the district agents to send out word through their interpreters, Indian policemen, etc., of my proposed coming and to make arrangements to enable me to come into contact with as many persons as possible. I thought it well, however, to instruct them not to give notice of my itinerary to the press, for I knew that I would be unable, in the one or two days at my disposal at each office, to meet and examine all of the person who might be thus induced to try to see me. The most that I could hope for was to get a general idea of the situation.
At the various appointments I met and examined all persons who desired to see me concerning matters of enrollment, taking due care to inform them beforehand that my visit was not the result of any change in the law, and that they were not to understand that they were making application to me for enrollment. I explained to them instead that I came as the representative of the Secretary of the Interior in order that he might obtain information directly concerning them. I encouraged the people to be frank in their statements, but informed them that whatever they said would be made a matter of record and could be compared at any time with former statements made by such of them as had theretofore been heard by the commission. A stenographer accompanied me and made a report of all statements; subsequently he furnished me with a typewritten transcript of his notes, copy of which is enclosed as Exhibit F. In order that we might not be compelled to rely alone upon the statements of the applicants, I also carried with me a camera, furnished by the Geological Survey, and secured pictures, enclosed as Exhibit G. of many of the persons who appeared before me. This was not possible, however, in all places, for the examinations were conducted upon several occasions until late in the evening. Through the investigation in this way my information concerning a considerable number of applicants came from the people themselves. I was careful to have it understood beforehand that no attorney nor agent would be allowed to be present. I did this in order that the claimants would be left free to answer entirely according to their own ideas and the promptings of their own minds. I did not, however, wish to avoid meeting attorneys and agents, and whenever possible met and conversed with them, as with other individuals, noting in fact that they were able to throw a great deal of light upon the situation. The district Indian agents proved another source of much value. They have now been in the field sufficiently long to be acquainted with many Indians, through whom they- have heard of deserving and equitable cases of persons omitted from the rolls. These men, with the aid of the assistant agents, the Indian policemen, and the Indian interpreters, brought to my attention a considerable number of cases of people who. for various reasons, were unable to meet me, and whose enrollment would perhaps never be accomplished under any circumstances if they were left to take the initiative unaided by the Government. Another source of information which proved particularly valuable was the tribal officials and public men who are members of the Indian nations. These men have a widespread acquaintance, and when interviewed did not hesitate to give me freely the information at their disposal. I also conferred with a number of men in public life, such as superintendents of Indian schools, heads of public institutions, and the like. From all of these I gathered information relating to a large number of persons. It will, of course, l>e impossible for me to give a detailed statement concerning each case: but. instead. I will confine myself to a statement of my impressions of the situation taken as a whole and describe by classes the persons whose cases deserve special consideration.
I was strongly impressed with the fact that as a general rule persons having the most meritorious cases were the least able to take the necessary steps to secure their enrollment. I found that such persons were frequently unable to undergo the expense of traveling by rail, even a few miles, in order to have their cases investigated. Distance, though short, was an impassable barrier between them and their rights, and when it came to leaving their homes and incurring hotel expenses, even for a short time, the impossibility of their doing anything for themselves was still more certain. This condition of affairs can not be readily appreciated from Washington, or even from Muskogee. but when one is in the field going from place to place he can fell keenly that persons laboring under extreme poverty, ignorance, ill health, or other disabilities must be assisted by the Government of the United States through affirmative action on its part if their cases are to be thoroughly investigated. To many such persons a few dollars in the hand means more than the vague and shadowy prospect of an allotment worth thousands of dollars to be received some time in the indefinite future.
Another matter which I noted particularly was the attitude of the Indian people toward the question. While they take a conservative view of the matter and are anxious to avoid a promiscuous investigation as to all kinds of claimants, they are very liberal in spirit toward those persons in whose cases real equities exist. I believe it may be said without danger of successful contradiction that the Indian people as a whole are extremely anxious and willing that the cases of real merit should be relieved. In this connection I refer to the fact that I conferred freely whenever possible with Indian officials and with leading members of the tribes and as a rule obtained from each of them important information concerning a few equitable cases.
This subject was touched upon by Gov. McCurtain in his last message to the council of the Choctaw Nation. Therein he brought to the attention of the council the fact that there were a number of equitable cases in the nation. I have not a copy of the governor’s message before me, but as I remember it he estimated the number to be about 40. These cases, as I remember, were brought to the attention of the council for such action as it might think proper to take. I believe, however, that it did not act upon the matter.
I desire to explain the meaning of the term “equitable cases” as used by me in making inquiries of the Government and tribal officers and other persons relative to meritorious cases. The term was so used with reference to people who were plainly entitled to have their cases considered, but who through a variety of causes, such as accident, inadvertence, mistake, failure to make application in due time, non-enrollment upon the tribal rolls, lack of intelligence, etc., failed to secure enrollment or whose cases were disposed of solely upon technical grounds.
While I was unable to visit several of the district agencies in person, I made arrangements with the Commissioner to the Five Civilized Tribes to send men to such places in my stead. These men, under my instructions and pursuant with the general policy of the investigation, kept the appointments provided for in my itinerary and made careful examination of all cases coming within their knowledge. The statements obtained by them were reduced to typewriting, and copies are herewith as a part of Exhibit F.
11. Classes of cases meriting further consideration on equitable grounds.
(a) Persons stricken from the approved rolls.
1. Solely because they failed to appeal to the United States courts from adverse decisions of the Dawes Commission rendered under the act of June 10, 1896 (29 Stat, 321).
2. Solely because they were denied enrollment upon appeal to the United States courts under said act of June 10, 1896.
3. Solely because the favorable decisions awarded them by the United States courts were set aside and vacated in the blanket decision rendered in the so called “test suit” of J. T. Riddle et al. Some of the persons embraced in this class relied for their enrollment wholly upon favorable decisions rendered by the United States courts, while others were in the possession of favorable judgments rendered both by the Dawes Commission and by said courts. As to the latter, there was no duty to transfer or appeal their cases to the citizenship court. See letter of March 4, 1907, copy of which is enclosed a Exhibit H, from the Attorney General to the President of the United States, which was forwarded March 5, 1907, to the Secretary of the Interior, with instructions to treat it as an opinion, but which was received by said Secretary two days too late to be of any value in the enrollment work.
4. Solely because denied enrollment by the citizenship court in specific judgments.
In all cases coming within the four classes enumerated above, the names of the applicants were placed upon the final rolls and approved by the Secretary of the Interior, only after full hearings and careful adjudication upon their merits, and. with one or two exceptions, all were stricken from the rolls merely upon jurisdictional grounds.
(b) Persons who were denied enrollment for jurisdictional reasons during the closing weeks of the enrollment work.
The applications of these persons were pending when the opinion of February 19, 1907, was rendered. Accordingly, their rights were disposed of in compliance, or supposed compliance, therewith. with the result that they never attained the status of enrolled citizens. Their cases were in all other respects analogous to those of members of the four classes enumerated above, and their rights were substantially the same. As to the former, some relief has been afforded through the application of the opinion of the Supreme Court of the United States of November 30, 1908, in the case of John E. Goldsby v. James Rudolph Garfield, Secretary of the Interior; but as to the latter, no relief is in sight, unless Congress shall see fit to grant remedial legislation.
(c) Persons who were in every respect entitled to enrollment, but who, for administrative reasons and for no other, for example, delay, inadvertence, oversight, etc., failed to secure enrollment.
Corning within this class are the 52 persons referred to in the report of the Commissioner to the Five Civilized Tribes of November l5, 1907. Their right to enrollment, according to the class of citizens in which they claim membership, was perfect, and they would undoubtedly have been enrolled had there been a few days more within which to consider their claims. The records in their cases were complete; there was no testimony to be taken or proof educed. It simply remained for the Secretary of the Interior to give formal assent to their enrollment. Some of these people were reported by telegram of the Commissioner to the Five Civilized Tribes on March 4, 1907, to the Secretary of the Interior, but said telegram was not delivered by the telegraph company until the following day. Unfortunate as their plight may be, their situation is no worse than that of the persons who were stricken from the rolls and refused enrollment contrary to the said letter of March 4, 1907, from the Attorney General to the President of the United States, which letter, as I have said, reached the Department of the Interior too late to be applied to the enrollment work.
(d) Persons who are of undoubted right, but who failed to make application within the time set by law or who failed to furnish the required proof.
My personal investigation brought to light a considerable number of cases of this kind. In fact, I believe that more persons fall within this class than within any other. General laws served well enough to accomplish the enrollment of all straight and regular cases, particularly where the applicants were able to render themselves substantial assistance, but as to the persons falling within this class a broader and more equitable jurisdiction should have been vested in the Secretary of the Interior. Some of the people to whom I refer in this connection were orphans for whom no one cured and in whom no one was interested. Minors were also frequently among these unfortunates, also the mentally incompetent, likewise the illiterate and the ignorant. Others lost their rights through sickness and physical inability to meet the requirements of the Dawes Commission. Still others, being illegitimate children, were compelled to rely upon their own resources.
There was another factor which had a far-reaching influence in preventing the enrollment of many persons who are undoubtedly Indian citizens. There was a faction known as “Snakes.” composed not of the members of one tribe alone, but of several, which was opposed to the laws looking to the enrollment in severally of the tribal lands. This faction included many full-blood Indians. Its members were the least civilized of the Five Civilized Tribes and least able to fight their own battles and to cope with the many problems resulting from rapidly changing political conditions. They were taught by their leaders that the laws and agreements providing for enrollment and allotment were contrary to the ancient treaties of the Five Civilized Tribes and that it was only a question of time when the old treaties would be restored and everything that had been done under the new system would pass away. This doctrine was accepted eagerly by a considerable number of persons, and they steadfastly refused for some time to take any steps in line with the proposed change of conditions. They adopted this policy not only on the part of themselves, but also on the part of their children and others, and it is said that in order to prevail in their opinions they even resorted to threats. While hoping and struggling for the impossible, many of these people honestly believed that the old treaties would be restored. Their position was doubtless taken in good faith; and even if the leaders were not all sincere, it needs no argument to show that the children of such persons should not be made to suffer for the mistakes or the wrongdoing of their parents.
(e) Persons who are entitled by undeniable residence and tribal affiliation, but who could not be heard upon the merits of their cases because the Commission to the Five Civilized Tribes failed to identify their names on tribal rolls or records
In connection with these persons, there happened that which, in my judgment, should never be allowed to occur in connection with an Indian case, to wit, final adverse adjudication without respect to the merits of the case, based solely upon jurisdictional grounds. This was due to the act of May 31, 1900 (31 Stat., 221). which limited the jurisdiction of the Dawes Commission to persons who had theretofore been enrolled or admitted as members of the Indian tribes.
(f) Offspring of Choctaw freedmen who were prevented from making application under the act of April 26, 1906 (34 Stat., 137). because of the erroneous construction of the Commissioner to the Five Civilized Tribes.
I have discussed the rights of these freedmen in a prior connection in this report, and need not. therefore, take up the matter again.
(g) Persons born to enrolled Mississippi Choctaws entitled as minors to enrollment under the act of April 26, 1906.
The members of this class were not enrolled by the Commissioner to the Five Civilized Tribes, owing to the latter’s misinterpretation of the law.
Others similarly situated were subsequently enrolled, after the question was brought to the attention of the department. These persons would have been enrolled had there been time to go back and readjudication their cases.
(h) Persons who, by reason of a defect in the wording of the act of April 20, 1906, although fully entitled, were not embraced in its terms.
In this connection, I refer to the offspring of enrolled and recognized Indian citizens who died prior to the initial date set for enrollment. Such parents would have been enrolled had they survived such day, but dying theretofore, their children could not be enrolled under the act of April 26, 1906. because not born to persons who were already enrolled, or whose enrollment cases were then pending.
(i) Persons who, by reason of a defect in the act of March 3, 1905, (33 Stat., 1048), were not enrolled thereunder, although fully entitled to enrollment.
This defect was due to the fact that said act provided only for the enrollment of offspring of parents whose enrollment had already been approved by the Secretary of the Interior.
(j) Creek freedmen barred by the first paragraph of section 3 of the said act of April 26, 1906, although such freedmen would have been entitled to enrollment under the treaty of 1866, between the Creek Nation and the United States.
(k) Cherokee freedmen who were barred by paragraph 2 of section 3 of the act of April 26, 1906, although they would have been entitled to enrollment prior to that act, in accordance with the terms of article 9 of the treaty of 1866, between the Cherokees and the United States.
(l) Persons who, under technical construction of the laws and agreements, were denied enrollment by the department, notwithstanding that other persons were subsequently granted enrollment in parallel cases under a more liberal construction.
(m) Persons of mixed Indian and negro blood who were enrolled as freedmen. in the Cherokee. Creek, and Seminole Nations, did not suffer a property loss by reason thereof, owing to the fact that such freedmen became citizens of the respective nations by adoption, acquiring thereby all the property rights of citizens by blood in respect to the final distribution of the land and money of said tribes.
The Choctaw and Chickasaw. Nations, however, the matter presents a different aspect in that enrollment, as a freed man in said nations carried with it the right to only 40 acres of land and no share in the proceeds arising from the sale of the surplus, whereas each citizen by blood is entitled to 320 acres of land and to share in the distribution of the lands and moneys of his tribe.
Thus it will be seen that in the Choctaw and Chickasaw Nations it is a matter of much importance to the persons of mixed Indian and Negro blood whether they be enrolled as citizens by blood or as freedmen. The question is also of importance to the tribes at large, inasmuch as any increase in favor of such claimants will correspondingly diminish the portion to be distributed among the other citizens.
The question is also of importance to the United States. The Government is materially concerned in its proper solution. This feature of the matter seemingly has been overlooked and I found no trace of any consideration of the subject from this standpoint. The interest of the United States is due to the fact that it must pay the Choctaw and Chickasaw Nations for each allotment received by a Chickasaw freedman. To explain this situation I desire to refer you to section 36 of the act of July 1, 1902 (32 Stat.. (541), which authorizes the Court of Claims to determine the controversy respecting the rolls of the Chickasaw freedmen in the Chickasaw Nation and the rights of such freedmen to the lands of the Choctaw and Chickasaw Nations under and all laws subsequently enacted by the Chickasaw legislature or by Congress. The right of appeal was also given to the Supreme Court of the United States and it was provided that, in the event it should be finally determined that said freedmen were not adopted by the Chickasaw Nation, the lands to be allotted to them should be paid for by the United States and the proceeds divided between the Choctaw and Chickasaw Nations, as their respective interests might appear.
Messrs. Mansfield, McMurray & Cornish secured contracts from the Choctaw and Chickasaw Nations. November 6, 1902, to represent them in the necessary suits concerning said freedmen. By the terms of these contracts, the attorneys were to receive from each nation 6 per cent of the interest of said nation in whatever sum or sums of money might be received from the United States as compensation for the lands to be allotted to the Chickasaw freedmen. These contracts were approved by the Secretary of the Interior and the Acting Commissioner of Indian Affairs on conditions, subsequently accepted, that in no event should the maximum compensation to be paid said attorneys exceed the sum of $27,500. said compensation to be apportioned between and paid to the Choctaw and Chickasaw Nations in the proportion in which they might be entitled to share in any recovery obtained by them in the proposed suits. Thus it will be seen (1) that an increase in the number of Chickasaw freedmen might or might not increase the fee of said attorneys, a point, which could not be settled in advance, and (2) that the larger the number of Chickasaw freedmen the more the United States would be required to pay to satisfy their claims.
From my personal examination and observation of a considerable number of persons claiming to be of mixed Indian and Negro blood I found that, as a general rule, such persons were not obviously and visibly Indians. There were, however, a number of marked exceptions. My examination was generally limited to the statements of the persons in interest, which of course I did not look upon as conclusive proof of their rights, but, from their own statements, I was convinced that a considerable number were not entitled to enrollment. There were others whose statements, if true, would entitle them to enrollment, but, in such cases, it sometimes seemed to me extremely doubtful that they would ever be able to produce satisfactory evidence in support of their claims. There were still others who, I am thoroughly persuaded, are related by blood to recognized Indian citizens whose enrollment has been approved by the Secretary of the Interior. In fact, there are specific instances which can be cited where part of the members of a family have been enrolled as freedmen while others of no greater natural right have been enrolled as Indians by blood.
After investigating a considerable number of cases and comparing my information thus obtained with what I had theretofore learned in the adjudication of Choctaw and Chickasaw cases. I am constrained to believe that the practice of the Commission to the Five Civilized Tribes and its successor was, as a general rule, to place the names of all persons of mixed Indian and negro blood upon the freedmen rolls without paying particular attention to the different classes of the persons affected by such action, and without an understanding of the laws and treaties bearing upon the subject.
Pursuant to its general attitude the. Commission to the Five Civilized Tribes prepared schedules containing the names of persons found by it to be entitled to enrollment as freedmen. These schedules frequently contained the names of persons of mixed negro and Indian hood, but there was nothing on the face of the schedule or the letter of transmittal, so far as I have been able to learn, disclosing the fact of Indian blood. These schedules, in the absence of protest upon the part of the nations in interest, were approved by the Secretary of the Interior or by his assistants. Thus, in a sense, the department approved and sanctioned the attitude of the commission, but under the circumstances without any intention of passing adversely upon a question of legal “import a nee affecting a large class of persons.
The first instance of which I have been able to find any trace of where the matter received the direct and conscious attention of the department was in connection with the application of Joe and Dillard Perry for the transfer of their names from the freedmen rolls to the rolls of citizens by blood of the Chickasaw Nation. I hare referred to this case before but in a different connection. The facts are that Joe and Dillard Perry were the minor children of a free woman of mixed Negro and Indian blood by a father who was unquestionably a Chickasaw Indian, being enrolled and recognized by the tribal authorities as a citizen by blood. The Assistant Attorney General for the department, to whom the case was referred. considered the rights of the applicants in connection with the laws and treaties of the United States and found that, as “descendants” of a Chickasaw, they were entitled to enrollment as citizens by blood. This opinion was rendered February 21, 1905.
Contrast this opinion with the practice of the Commission to the Five Civilized Tribes outlined above, and in connection with both please reconsider what I have said heretofore relative to that portion of the act of April 26, 1906 (34 Stat.. 137). with reference to the transfer of names from freedmen rolls to rolls of citizens by blood.
Prior to the treaty of 1830 there were a number of persons of Negro blood who were recognized citizens of the Choctaw Nation. This is clearly shown by the records of the Indian Office. These persons are citizens of the nation when the treaty of 1830 was entered into between the Choctaw Nation and the United States and, pursuant to which the territory known as the Choctaw-Chickasaw country was conveyed to the Choctaw Nation “in fee simple to them and their descendants.” Subsequently, when the Chickasaws acquired an interest by purchase in the country theretofore ceded to the Choctaws. proper provision was made to guarantee to the Chickasaws and their descendants the interest so acquired. Following these treaties and in the interval preceding the emancipation of the Choctaw and Chickasaw slaves by virtue of the treaty of 1800, the general rule was that, under the treaties and laws of the United States all descendants of the Choctaws and Chickasaws residing in the country were entitled to citizenship therein if born to free parents.