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(1) The titles of the Indian tribes to their lands.-As it is well known that there are a considerable number of persons of Indian descent, some of whom are full-blood Indians who were born in the Indian Territory and who have always resided in the land of their birth and against whom there is no suggestion of loss of citizenship by reason of non-residence, it will be evident that the subject of the title of the Indians to their country is one of paramount importance, particularly when it is borne in mind that these people claim that the tribal lands were conveyed to the Indian people and their descendants and that indefeasible rights were acquired thereby.
It will be remembered that the ancient homes of the Five Civilized Tribes were east of the Mississippi River. The Choctaw and Chickasaw Indians were located, mainly, in the States of Mississippi and Alabama, while the Cherokees, Creeks, and Seminoles occupied neighboring States.
With the increase of the white population came a demand for the removal of the Indians from these States. This demand culminated in the treaty of October 18, 1820 (7 Stat., 210. 211). by article 2 of which the Choctaw Nation agreed to exchange a portion of its lands in Mississippi for certain lands west of that river. This article reads in part as follows:
For and in consideration of the foregoing cession, on the part of the Choctaw Nation, and in part satisfaction for the same, the commissioners of the United Slates, in behalf of said States, do hereby cede to said nation a tract of country west of the Mississippi River, situate between the Arkansas and Red Rivers, and bounded as follows: (Here follows the description, which it is unnecessary to repeat.)
In view of the importance which has generally been given to this feature of the matter. I desire to call attention to the fact that there are no words in the foregoing article which purport that a conveyance in fee simple to the Choctaw Nation was contemplated. An exchange of lands and nothing more was all that was intended, and, as the title of the Choctaw Nation in Mississippi and Alabama was simply that species of interest known as the “Indian title”-that is to say, a mere right of occupancy-it is fair to assume that they acquired by the exchange no higher title to or interest in the lands west of the Mississippi. But in two respects which were of much importance to the whites, the treaty of 1820 failed to accomplish what was intended; it did not affect the removal of the Indians of the Indian Territory and it did not extinguish their title to several millions of acres of valuable lands east of the Mississippi River. Later came the treaty of September 27-. 1830 (7 Stat., 333), which was designed to accomplish both of these purposes. Article II of this treaty reads in part as follows:
The United States under a grant specially to be made by the President of the United Suites shall cause to he conveyed to the Choctaw Nation a tract of country west of the Mississippi River, in fee simple to them and their descendants, to inure to them while they shall exist as a nation and live on it, beginning near Fort Smith, etc-. (Description follows.)
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If the tract described in this article be compared with that conveyed by Article II of the treaty of 1820, it will be found that the tract described in the earlier treaty included all the land mentioned in the latter treaty, and, in addition, other lands which do not require present consideration. It would seem, upon first thought, that the conveyance undertaken by Article II of the treaty of 1830 was superfluous and served to accomplish no end whatever, amounting simply to a reconveyance of the same tract. But this view is not sustained by further examination of the subject. The treaty of 1830 was a new contract. It was based upon new considerations, chief of which, on the part of the Choctaws, were
(1) that they should give up their homes, which meant the abandonment of the graves of their ancestors, and thereby make a sacrifice which, it is said, was almost beyond their capacity to endure, and
(2) to cede away the balance of their eastern lands.
It certainly can not be supposed that for these considerations they were to receive nothing whatever in return. On the contrary, history shows that it was the purpose of the United States to make such an inducement as would cause them to be content. to leave their old homes and to remain away from them for all time. Accordingly the inducement was offered them of a permanent home west of the Mississippi, where they should never be molested nor disturbed by the white man and to which they should have a lasting title. To carry out this understanding the parties put words in the treaty of 1830, which are not to be found in the former treaty, by providing that the United States would cause “to be conveyed to the Choctaw Nation” the tract of country west of the Mississippi River, which conveyance was to be ” in fee simple to them and their descendants” and “to inure to them ” while they should exist as a nation and live upon the land.
Pursuant to said Article II, President Tyler, on March 23, 1842, executed a patent, copy of which may be found on pages 31 and 32 of the Choctaw law book of 1894, conveying, or undertaking to convey, the country now comprising the Choctaw and Chickasaw Nations, to the Choctaw Nation. The following is the granting clause of the patent:
Now know ye, That the United Suites of America, in consideration of the premises, and in execution of the agreement and stipulation in the aforesaid treaty, have given and granted, and by these present do give, and grant, unto the said Choctaw Nation, the aforesaid “tract of country west of the Mississippi;” to have and to hold the same, with all the rights, privileges, immunities, and appurtenances of whatsoever nature thereunto belonging, as intended “to be conveyed” by the aforesaid article, “in fee simple to them and their descendants, to insure to them, while they shall exist as a nation and live on it,” liable to no transfer or alienation, except to the United States, or with their consent.
The foregoing treaty provisions form the basis of the claims of those persons who allege Indian blood and descent.
The applicants who allege Choctaw descent claim that by Article II, of the treaty of September 27, 1830 (7 Stat.. 333). the United States agreed to convey the lands now in controversy, in fee simple, to the Choctaw Nation, in trust, for the exclusive use and benefit of a designated class of persons, composed
(a) of all those persons comprising the Choctaw community of Indians on the day the treaty was ratified, and
(b) the descendants of such persons.
They also claim that in 1842 the President of the United States specially conveyed, by patent, said lands, in fee simple, to the Choctaw Nation, to be held by it. in trust, for the exclusive use and benefit of said designated class of persons.
The applicants who allege Chickasaw descent claim that by Article I of the treaty entered into between the Choctaws and Chickasaws on January 27, 1837, and ratified March 24, 1837, by the Senate of the United States (11 Stat., 573), those persons comprising the Chickasaw community of Indians on the day said treaty “as ratified, and the descendants of such persons, acquired by purchase an equal, undivided, individual interest in the trust property agreed to be conveyed to the Choctaws by Article II, of the treaty of 1830. on the same terms that the Choctaws held it, and that by this treaty the Chickasaws became a part, of the designated class of Choctaws for whose exclusive use and benefit the grant was to be made.
The applicants as a whole, therefore, claim that every person who was a member of the Choctaw community of Indians February 24, 1831 that is to say when the treaty of September 27, 1830, was ratified by the Senate of the United States or who is a descendant of any such Choctaw member, or who was a member of the Chickasaw community of Indians on the 24th day of March, 1837, or who is a descendant of any such Chickasaw member, became possessed. February 24, 1831, if a Choctaw or March 24, 1837, if a Chickasaw, or at his or her birth if a descendant of either of such members, with an indefeasible title to an undivided individual interest in the property resulting from said treaties and grant.
This contention has not thus far been sustained by the courts. It has been held, instead, that the question is a political one. not open to judicial determination, and that it lies with Congress to deal with the subject. Whether this lie true or not. it will doubtless prove that the situation can be relieved more speedily through legislative than judicial action.
The views of the Indian claimants, as set forth above, correspond substantially with the opinion expressed by the Commission to the Five Civilized Tribes in a report rendered prior to the first of the “enrollment acts. To impress upon Congress the need of intervention by the United States, the commission took the position that the lands comprising the Choctaw-Chickasaw country were conveyed in trust to the Choctaw Nation for the benefit of the individual members of the tribe. It was compelled, however, to conclude that the trustee, viz. the Choctaw Nation, had wholly failed to perform its duty with reference to the trust, and that it was the duty of the government of the United States to intervene to the end that the trust might be fully executed.
There was another committee appointed to report on affairs in the Indian Territory, which was composed of several members of the Senate of the United States. This committee rendered a report May 7, 1894, in respect to the situation in the Indian Territory, particularly as to the legal aspects thereof, which was substantially of the same nature as was that made by the Commission to the Five Civilized Tribes. See Senate Report No. 377, Fifty-third Congress, second session.
The reports of these committees are referred to and quoted extensively in a decision of the Supreme Court of the United States in the case of Stephens et al. v. Cherokee Nation, rendered May 15, 1899. (174 U. S., 445).
The importance of the title or interest in the Choctaw and Chickasaw lands asserted by the claimants is due in part to the fact that several suits, which have been instituted in the Indian Territory, rest upon the foundation that the parties thereto are descendants of persons who were grantees under the treaty of 1830. Some idea of the strength of their cases can be obtained by examination of this feature of the matter. From decisions rendered in the lower courts, it now appears that a judicial interpretation of the treaty rights of the claimants may never be made, but that the courts will dispose of the subject upon jurisdictional grounds alone. Be this as it may. it seems to me that, independently of possible action by the courts, this department should take into consideration the question whether, as a matter of law and equity, the claimants have rights which ought to be respected and. if so. to make appropriate recommendation to Congress for remedial legislation.
The history of the Cherokees, Creeks, and Seminoles corresponds in a number of material respects to that of the Choctaws and Chickasaws. and they hold, or did hold, their lands in the Indian Territory under substantially the same guarantees of title.
(2) Conditions incident to removal to the Indian Territory.-The removal of the Indian tribes from their homes east of the Mississippi to the Indian Territory was a work of much larger proportions than is ordinarily appreciated, at this time. In 1830 they were powerful tribes. They had established governments in their ancient seats of power. There they had lived and made their homes for many years. History has shown that the ties which bind men to places where they have made their homes were peculiarly strong with these people. The treaty provisions looking to their removal were not understood by the great mass of people, and were acquiesced in only by the leaders of the tribes. In that day the means of travel were few and poorly adapted to the transportation of large number of people, particularly where it meant the breaking up of a whole nation composed of all classes of persons, children of tender years, and men and women of advanced age, as well as the warriors and strong men of the tribes. Part of the work of transportation was accomplished by steamboat, but many of the people were compelled to make the greater part of the journey on foot. Rivers were to be crossed, swamps were to be avoided, forests were to be traversed, and the hardships of winter encountered. Conditions were such that the United States was unable to remove the people from east of the Mississippi within the time contemplated by said treaty of 1830. Moreover, circumstances surrounding the Choctaw people were such as to render removal within the time stated a physical impossibility. The work of transporting the Choctaws, however, was carried on by the United States from year to year for many years after said treaty. These people were transported west at the expense of the Government even after the year 1850. Others removed at their own expense subsequent to that date, but the cost of their removal was ultimately paid by the United States. The attitude of the Choctaw Nation, as set forth in this law, was for many years, to welcome all Choctaws who had been members of the tribe in Mississippi together with their descendants. Illustrative of this attitude is the Choctaw act of October 19, 1836, which provided that no person belonging to any tribe of Indians or people, not a descendant of Choctaws. should be permitted to settle in the nation, or purchase any improvement of any citizen or citizens of the nation, unless by permission from the general council. By this act the Choctaw Nation impliedly consented to the removal of Choctaw Indians to the Choctaw Nation in the Indian Territory, and to their settlement therein with the right to improve the land and to make homes for themselves and their children.
The Choctaw act of October 14, 1847, provided that all the new and late emigrant Choctaws to the land should have equal rights with the late settlers in participation in the schools of the nation. Here again, after a lapse of 11 years, the Choctaw Nation evidenced the same spirit toward the absentee Choctaws.
The right of Indians of blood to reaffiliate with the tribe is further evidenced by Article XVII of the treaty of 1866 (U Slat., 7G91), wherein provision was made for newspaper publication of notice in six States of the Nation to the end-
that such Choctaws and Chickasaws as yet remained outside of the Choctaw and Chickasaw Nations, may be informed and have opportunity to exercise the rights hereby given to resident Choctaws and Chickasaws.
By act of December 24, 1889. the Choctaw Nation requested the United States Government to make provision for the removal of certain Choctaws to the Indian Territory.
This resolution reads as follows:
Whereas there are large numbers of Choctaws yet in the States of Mississippi and Louisana who are entitled to all the rights mid privileges of citizenship in the Choctaw Nation: and
Whereas they are denied all rights of citizenship in said States: and
Whereas they are too poor to immigrate themselves into the Choctaw Nation :
Be it resolved by the general council of the Choctaw Nation assembled. That the United States Government is hereby requested to make provisions for the emigration of said Choctaws from said States to the Choctaw Nation.
These different acts indicate that the Choctaw Nation recognized uniformly and over a long period of time the right of descendants of the Choctaw people to remove to the Choctaw Nation west and to reaffiliate with the tribe, and, upon so doing, to enjoy all the privileges of other members of the nation. Their right to do so was recognized, impliedly at least, in the Curtis Act of June 28, 1898 (30 Stat., 495), for it provided in section 21 thereof as follows:
No person shall be enrolled who has not heretofore removed to and in good faith settled in the nation in which he claims citizenship: Provided however, That nothing contained in this act shall be so construed us to militate against any rights or privileges which the Mississippi Choctaws may have under the laws of or the treaties with the United States.
It is unnecessary, however, to discuss this aspect of the matter further, inasmuch as it was shown in the opinion of the Assistant Attorney General of this department. February 19, 1903, in the case of James S. Long et al.. upon an exhaustive review of the history of the Choctaw people and their laws, that the right was acknowledged for many years, and until very recent times, of persons of Choctaw blood to resume their citizenship in the Choctaw Nation, simply by removing thereto and subjecting themselves to its laws.
The people who thus removed to the Choctaw-Chickasaw country west of the Mississippi entered upon the land and made homes thereon, acquired farms, and otherwise improved the country. To some of them, as the records of the department show, permits were issued by the tribal authorities to employ noncitizens. Thus, the persons receiving such permits were, in one way. recognized as citizens.