(5) Choctaw and Chickasaw agreement, ratified by act of July 1, 1902 (32 Stat., 641). and by the tribes September 25, 1902. The acts of June 28. 1898, and May 31, 1300, were, by reference, made a part of this agreement. There were two new features in it, however, of great importance. The first of these related to “the closing of the rolls.” In passing, I desire to say that the term, “the closing of the rolls,” has during the progress of the enrollment work had two distinct meanings. For a long time it related to the receipt of applications, but had no reference to the closing of the enrollment work, it being supposed as a matter of course that pending applications would be disposed of as rapidly as practicable. To close the rolls, accordingly, meant to bar all further applications. It now means the closing of the enrollment work.
Section 34 of said act (or agreement) provided that the Commission to the Five Civilized Tribes might receive applications for enrollment for 90 days following the ratification of the agreement by the Tribes: that is to say within 90 days from and after September 25, l902. This section was construed by the commission as prohibiting it from receiving applications or even taking up cases of its own motion. The action of the commission was approved by the department in an opinion rendered by the Assistant Attorney General August 22, 1904, in the case of Esau Wolf, who was a full-blood Chickasaw and whose name was enrolled on the 1893 roll of the Chickasaw Nation. Thus the law stood in respect to application until April 26, 1906, during which period all persons, including applicants and their legal advisors, had legal notice, by virtue of the terms of the statute, that it would be of no use for them to make application for enrollment. During this time there were some persons-who did attempt, however, to make application. Some of such applications were returned to the parties, while others were held in the files of the commission and the department.
As said acts of June 28, 1898, and May 31, 1900, have been discussed sufficiently heretofore, it is unnecessary to call further attention to them, except to note that the Choctaw and Chickasaw agreement, by incorporating the latter act, retained a provision which necessarily operated to restrict opportunity for enrollment. In addition to this, said section 34 imposed other restrictions which also bore heavily upon persons seeking enrollment.
This agreement also made provision for a court, known as the Choctaw and Chickasaw citizenship court, which was created for the purpose of reviewing decisions theretofore rendered by the United States courts for the Indian Territory admitting applicants to enrollment upon appeal from decisions rendered by the Dawes Commission under the act of June 10, 1896 (29 Stat., 321).
The provisions creating this court and prescribing its duties are to be found in sections 31, 32, and 33 of the said act, of July 1, 1902. These sections were given immediate effect, whereas the agreement, taken as a whole, was held over to await the ratification of the tribes.
The decisions to be reviewed by the court were rendered by the United States courts in 1898 or thereabouts, and the law which authorized such decisions declared that the same should be final. As a result, there was a period of approximately four years of repose, during which the court claimants had every reason to believe that their rights were finally settled and that they could safely invest their means in building homes and improving the land occupied by them.
In the “test case” of J. T. Riddle et al, the citizenship court rendered a decision December 17, 1902. setting aside, vacating, and holding for naught all decisions where applicants had been admitted to enrollment upon appeal to the United States courts. This decision was of a very sweeping character and affected several thousand persons adversely. The impression prevailed at the time that if the court had ruled otherwise it would have ruled itself out of office, or at least have greatly shortened its official life. Thus at the outset, the court was placed in a position where it was very much to the interest of its members to decide against one class of persons and in favor of another. The effect of the decision in the test case was to throw upon the applicants the burden of transferring their cases to the citizenship court for a trial de novo.
The decision of the citizenship court in this case rested upon two grounds,
(1) that the United States courts, proceeding under the act of June 10,189G, had admitted persons to citizenship, or to enrollment as such citizens, in the Choctaw and Chickasaw Nations, respectively, without notice of the proceedings in such courts being given to each of said nations, and
(2) that the proceedings of the United States courts under said act of June 10. 1896, should have been confined to a review of the action of the Commission to the Five Civilized Tribes, upon the papers and evidence submitted to said commission, and should not have extended to a trial de novo of the question of citizenship.
The character of much of the enrollment legislation has been such as to cause the rights of many Indian applicants to be adjudicated upon jurisdictional and technical, rather than meritorious, grounds, and nowhere is this more apparent than in the sections relating to the citizenship court. Under the heading, “Act of June 10, 1896,” I have pointed out the confusion which resulted during the last days of the enrollment work, just prior to March 4, 1907, because of the differences of opinion between the Department of the Interior and the Department of Justice as to whether the Commission to the Five Civilized Tribes had, under the act last referred to, jurisdiction to consider the case of any person theretofore enrolled or otherwise duly recognized as a citizen. This question did not stop with the decisions of the Dawes Commission, and the Department of the Interior was required later to determine whether it would enroll certain claimants who had at one time been parties to the suits in the United States courts. Some of these persons were affected only by the blanket decision in the Riddle case and had never made any effort to transfer their cases to the citizenship court. There were others who, following the decision in the Riddle case, transferred their cases to the citizenship court, but were there, by specific judgments, denied enrollment. The Department of the Interior adopted the view that, if the Dawes Commission had no jurisdiction in any specific case, it followed that the United States courts on appeal were also without jurisdiction therein. This conclusion was based upon the reasoning that an appellant court must necessarily be confined to cases coming properly before the lower court. The attorneys for the Choctaw and Chickasaw Nations also urged, in certain cases, that the decisions of the courts, for or against any person, were without force or effect in the case of persons having a tribal status prior to the act of June 10, 1896. In other cases, however, these attorneys argued with much stress to the contrary. Their conflicting views are set out in the opinion of the Assistant Attorney General for the Interior Department of December 8, 1905, in the case of Mary Elizabeth Martin.
The rule of adjudication thus adopted by the department was followed until the opinion of the Attorney General of February 19, 1907, in the case of William C. Thompson et al. In that opinion the Attorney General held that the commission, and the courts upon appeal, had jurisdiction of all applications regardless of whether or not the parties were prior to June 10, 1896, recognized and enrolled citizens, at least such was the construction placed upon the opinion of the Attorney General by the enrolling officers in the Department of the Interior in the brief period between February 19 and March 5, 1907 during which time the names of many persons were stricken from the approved rolls, while others whose cases were found pending before the department were simply denied enrollment in original decisions.
The persons thus affected were of two classes,
(1) applicants having double affirmative judgments-that is to say, persons who were granted enrollment not only by the Dawes Commission under the act of June 10, 1896, but also, upon appeal taken by the adverse party in interest, by the United States court, and
(2) persons who were denied enrollment by the Dawes Commission in 1896and relied only upon the reversal of the decisions of the commission upon appeal to the United States courts.
There was a considerable number of persons of the class having double judgments in their favor who did not transfer their cases to the citizenship court, thinking that they were not under obligation to do so. Some of them were even advised by the attorneys for the Choctaw and Chickasaw Nations that they were not obliged to make the transfer. Among the persons of this class was John E. Goldsby, whose status as an enrolled citizen has been recently restored pursuant to the decision of the Supreme Court of the United States of November 30, 1908.
Continuing further with the class of persons having double affirmative judgments, I desire to call your attention to a letter written March 4, 1907, by Attorney General Bonaparte to the President advising him that said opinion of February 19, 1907, was intended to apply only to those cases where applicants were admitted by the United States courts after reversal of the decisions of the Dawes Commission but not to those cases where the applicants had double judgments in their favor. By letter of the Secretary to the President, dated March 5, 1907. Mr. Bonaparte’s letter of March 4, 1907, was forwarded to the Secretary of the Interior with instructions to treat it as an opinion. These instructions did not reach the Secretary of the Interior until March 6, and hence came too late to be of any service in connection with the enrollment work, which by mandate of Congress had been brought to a close two days earlier.
Following the Goldsby case, the Department of the Interior has restored many persons who were stricken from the rolls to the status theretofore enjoyed by them. Among such are persons who rely merely upon decisions of the United States courts, as well as others who were granted enrollment both by the Dawes Commission and by the United States courts: but nothing short of remedial legislation will afford relief in the parallel cases which were pending and undecided on February 19, 1907. For example, the case of Myrtle Randolph and her brother. William Thompson, admitted by the United States court upon appeal from and reversal of the decision of the Dawes Commission should be heard upon its merits. Likewise the case of Loula West et al.. where the applicants had double judgment in their favor but who unwittingly transferred their cases to the citizenship court. In so doing, however, they protested against the jurisdiction of the court. There are other cases which also deserve reconsideration en their merits regardless of the action of said citizenship court.
In contrast to the decision of the citizenship court and with reference to the question of proceedings in the United States courts. I desire to invite your attention to the decision of Judge Clayton of the United States Court for the Central District of the Indian Territory, rendered in the Jack Amos case. (See p. 110, Eighth Annual Report of the Commission to the Five Civilized Tribes.)
Respecting the ruling that the decisions of the United States courts were void in the absence of notice to both nations. I desire to say that at the time of said decisions and long prior thereto the department regarded the Choctaw and Chickasaw tribes as each owning an undivided fractional interest in the lands occupied by both tribes, and whenever any of such lands were sold the proceeds were divided according to such fractional interest. Accordingly, an increase or decrease in the membership of one tribe was not important to the other. Such a change would simply affect the pro rata interest of the members of one tribe without affecting the other tribe in the least. Unless I am right in this, every intermarried citizen in the Choctaw and Chickasaw Nations should be barred, were it not for the agreement of 1902, from allotment, for the intermarriage laws, which were a species of admission to enrollment, were enacted by each nation without notice to or consent of the other. Consider, further the decisions of the Dawes Commission in 1896, admitting applicants to enrollment. No one has ever challenged the validity of such decisions because of lack of notice. Consider also the case of Cyrus II. Kingsbury, which was one of the applications disposed of in the opinion of February 19, 1907. There the Attorney General found that the applicant was entitled to enrollment as the offspring of parents adopted by act of the Choctaw Council, and no suggestion whatever was made that notice to the Chickasaws was necessary. It is significant, in this connection, that in apportioning the $750,000 fee paid Mansfield, McMurray, and Cornish the citizenship court itself recognized the principle of separate fractional interests in the two nations.
There is another feature of the decisions of the citizenship court which I desire to bring to your attention. It has been given out frequently and with much publicity that there was great fraud on the part of citizenship applicants. But, after careful examination of such decisions, I find that the cases of a large number of the applicants fall within the rulings in a few leading decisions, which turn solely upon construction of law-decisions in which the citizenship court stands practically alone.
Faith in the judicial fairness of this court has been much affected
(1) by the important part which Messrs. Mansfield, McMurray, and Cornish took in securing the legislation to which the court owed its existence and the judges their positions, and
(2) by the fact that, following the refusal of Secretary Hitchcock to allow said attorneys a fee in excess of $250,000, there came a sudden change of law, under which the citizenship court was authorized to fix their fee, and, being so authorized, did allow a fee of $500,000 in excess of the above amount.
These facts are not conclusive evidence of intentional wrong and should not of themselves be so construed, but they do show a condition under which even a judge of the best of intentions, moved by sentiments of gratitude and good will, might unconsciously become unfitted to dispense justice. Upon the whole I am constrained to believe that the leading decisions of the citizenship court should be reviewed by some other tribunal.
(6) Agreement with the Cherokees, approved by act of July J, 1902 (32 Stat., 716), and ratified by the Cherokee Tribe August 7, 1902. This agreement also incorporated, by reference, the said acts of June 28,1898, and May 31, 1900, thereby retaining and continuing in the Cherokee Nation, as in other tribes, the limitations on jurisdiction described therein. A further provision of a restrictive nature was also included in the Cherokee agreement. Section 30 thereof reads as follows:
During the months of September and October, in the year nineteen hundred and two. the Commission to the Five Civilized Tribes may receive applications for enrollment of such infant children as may have been born to recognized enrolled citizens of the Cherokee Nation on or before the first day of September, nineteen hundred and two. but the application of no person whomsoever for enrollment shall be received after the thirty-first day of October, nineteen hundred and two.
In the Cherokee case of George Tinney a difference of opinion arose between the Commissioner to the Five Civilized Tribes and the Indian Office as to the proper construction of this section, but I gather from the papers before me that the position of the former was that his office and the department were without jurisdiction to consider any citizenship case not pending prior to October 31, 1902, and, further, that said commissioner applied this rule not only to prevent the making of new applications but also to bar his office from considering, of its own motion, the canes of persons whose names were already upon the tribal rolls. The Indian Office, however, was of the opinion that the commissioner would not have performed his duty of investigating the rolls until all names on any roll made since the removal of the Cherokees to the Territory in 1835 were accounted for. The question was submitted to the Assistant Attorney General, who, in an opinion rendered June 19, 1905, construed said section 30 in connection with sections 25, 26, and 27 of the same act and reached the following conclusion:
As the roll of 1880 is confirmed, those on that roll living and not shown to have become expatriated are by force of these acts enrolled citizens of the Cherokee Nation. No application for enrollment is necessary. If the attention of the commission is in any manner called to the fact that they have omitted to enroll a living person whose name appears on the roll confirmed by Congress, it is their duty to correct such error and to inscribe such name on the roll made by them if it is not shown that such person has in some manner lost or forfeited his citizenship. The provision of section 30 of the act of 1902, above quoted in the letter of reference, has no application to such cases, but applies to persons whose names do not appear upon the confirmed roll, who are called upon to establish their right by proof other than the roll itself: otherwise the provisions of the act are brought into conflict with themselves.
The Commissioner to the Five Civilized Tribes was not satisfied with this construction, and recommended reconsideration of departmental approval of said opinion. The result was that. April 16, 1906, the Assistant Attorney General rendered further opinion in the matter, holding as follow?:
I am of the opinion that no one can rend section 27, incorporating into it the provisions of the acts of 1898 and 1900 as modified, without admitting that the commission must ” investigate the right of all other persons whose names are found on any other roll” than that of 1880. That duty arises the moment it anywise appears to the commission that one claims citizenship in the nation whose name is borne on any tribal roll. Congress has nowhere required a formal application for enrollment. That is a purely administrative regulation for convenience of administration only which may excuse the commission from inspection of other rolls than that of 1880 to ascertain that no name of a person living September 1, 1902, borne on such rolls, is omitted from their roll: but whenever such a person appears and indicates a roll on which he is borne, the duty arises under the law to investigate the case and to ascertain whether his name there appears and was there placed “by fraud or without authority of law.” To hold otherwise is to write into or read into the law something not enacted by Congress and, in addition to what it has enacted, imposing upon the citizen a duty and a vigilance that Congress has not imposed. Administrative regulations are for effectuating a law and convenience in its administration, and can not amend or change its substantial requirements by imposing conditions not imposed by the act. (Morrill v. Jones, 106 U. S., 400.)
I desire to call particular attention to this feature of the enrollment work in the Cherokee Nation. As will appear from the statements given above, there was a period running from October 31, 1902, to April 16, 1906, and covering nearly three and one-half years, during which the commission and the Commissioner to the Five Civilized Tribes were, by erroneous construction, failing to consider and opposing the consideration of the enrollment rights of persons whose names were upon the rolls theretofore prepared by the tribal authorities. It was extremely unfortunate that these complicated questions were not settled by competent authority at an earlier stage in the enrollment work. Following authoritative construction, it became necessary under various opinions to rehear and reconsider cases. This fact explains why it was that so many rehearings were found necessary during the last year of the enrollment work. And out of this condition arose the fact that there was such a large number of records of cases pending during the last weeks of the enrollment work which could not possibly be properly adjudicated.