38 LAWS AFFECTING THE FIVE CIVILIZED TKIBES.
sons by their duly appointed agents, and for incompetents by guardians,
curators, or suitable persons akin to them, but it shall be the duty of said" Com
mission to see that such selections are made for the best interests of such
parties.
5. If any citizen have in his possession, in actual cultivation, lands in excess
of what he and his wife and minor children are entitled to take, he shall,
within ninety days after the ratification of this agreement, select therefrom
allotments for himself and family aforesaid, and if he have lawful improve
ments upon such excess he may dispose of the same to any other citizen, who
may thereupon select lands so as to include such improvements ; but, after the
expiration of ninety days from the ratification of this agreement, any citizen
may take any lands not already selected by another; but if lands so taken
be in actual cultivation, having thereon improvements belonging to another
citizen, such improvements shall be valued by the appraisement committee,
and the amount paid to the owner thereof by the allottee, and the same shall be
a lien upon the rents and profits of the land until paid: Provided, That the
owner of improvements may remove the same if he desires.
(>. All allotments made to Creek citizens by said Commission prior to the
ratification of this agreement, as to which there is no contest, and which do
not include public property, and are not herein otherwise affected, are con
firmed, and the same shall, as to appraisement and all things else, be governed
by the provisions of this agreement; and said Commission shall continue the
work of allotment of Creek lands to citizens of the tribe as heretofore, con
forming to provisions herein ; and all controversies arising between citizens as
to their right to select certain tracts of land shall be determined by said
Commission.
7. Lands allotted to citizens hereunder shall not in any manner whatsoever
or at any time be incumbered, taken, or sold to secure or satisfy any debt or
obligation contracted or incurred prior to the date of the deed to the allottee
therefor, and such lands shall not be alienable by the allottee or his heirs at
any time before the expiration of five years from the ratification of this
agreement, except with the approval of the Secretary of the Interior.
Each citizen shall select from his allotment forty acres of land as a home
stead, which shall be nontaxable and inalienable and free from any incumbrance
whatever for twenty-one years, for which he shall have a separate deed, con
ditioned as above: Provided, That selections of homesteads for minors, pris
oners, convicts, incompetents, and aged and infirm persons, who can not select
for themselves, may be made in the manner herein provided for the selection
of their allotments ; and if, for any reason, such selection be not made for any
citizen, it shall be the duty of said Commission to make selection for" him.
The homestead of each citizen shall remain, after the death of the allottee,
for the use and support of children born to him after the ratification of this
agreement, but if he have no such issue, then he may dispose of his homestead
by will, free from limitation herein imposed, and if this be not done, the land
shall descend to his heirs, according to the laws of descent and distribution of
the Creek Nation, free from such limitation.
8. The Secretary of the Interior shall, through the United States Indian
agent in said Territory, immediately after the ratification of this agreement,
put each citizen who has made selection of his allotment in unrestricted posses
sion of his land and remove therefrom all persons objectionable to him ; and
when any citizen shall thereafter make selection of his allotment as herein pro
vided, and receive certificate therefor, he shall be immediately thereupon so
placed in possession of his land.
9. When allotment of one hundred and sixty acres has been made to each citi
zen, the residue of lands, not herein reserved or otherwise disposed of, and all
the funds arising under this agreement shall be used for the purpose of equaliz
ing allotments, and if the same be insufficient therefor the deficiency shall be
supplied out of any other funds of the tribe, so that the allotments of all citizens
may be made equal in value, as nearly as may be, in manner herein provided.
TOWN SITES.
10. All towns in the Creek Nation having a present population of two hundred
or more shall, and all others may, be surveyed, laid out, and appraised under
the provisions of an act of Congress entitled "An act making appropriations for
the current and contingent expenses of the Indian Department and for fulfilling
LAWS AFFECTING THE FIVE CIVILIZED TEIBES. 39
treaty stipulations with various Indian tribes for the fiscal year ending June
thirtieth, nineteen hundred and one, and for other purposes," approved May
thirty-first, nineteen hundred, which said provisions are as follows :
That the Secretary of the Interior is hereby authorized, under rules and regulations to
be prescribed by him, to survey, lay out, and plat into town lots, streets, alleys, and parks
the sites of such towns and villages in the Choctaw, Chickasaw, Creek, and Cherokee
nations, as may at that time have a population of two hundred or more, in such manner
as will best subserve the then present needs and the reasonable prospective growth of such
towns. The work of surveying, laying out, and platting such town sites shall be done by
competent surveyors, who shall prepare five copies of the plat of each town site, which,
when the survey is approved by the Secretary of the Interior, shall be filed as follows :
One in the office of the Commissioner of Indian Affairs, one with the principal chief of
the nation, one with the clerk of the court within the territorial jurisdiction of which the
town is located, one with the Commission to the Five Civilized Tribes, and one with the
town authorities, if there be such. Where in his judgment the best interests of the public
service require, the Secretary of the Interior may secure the surveying, laying out, and
platting of town sites in any of said nations by contract.
Hereafter the work of the respective town-site commissions provided for in the agree
ment with the Choctaw and Chickasaw tribes ratified in section twenty-nine of the act of
June twenty-eighth, eighteen hundred and ninety-eight, entitled "An act for the protection
of the people of the Indian Territory, and for other purposes," shall begin as to any town
site immediately upon the approval of the survey by the Secretary of the Interior, and
not before.
The Secretary of the Interior may, in his discretion, appoint a town-site commission
consisting of three members for each of the Creek and Cherokee nations, at least one of
whom shall be a citizen of the tribe and shall be appointed upon the nomination of the
principal chief of the tribe. Each commission, under the supervision of the Secretary of
the Interior, shall appraise and sell for the benefit of the tribe the town lots in the nation
for which it is appointed, acting in conformity with the provisions of any then existing
act of Congress or agreement with the tribe approved by Congress. The agreement of
any two members of the commission as to the true value of any lot shall constitute a
determination thereof, subject to the approval of the Secretary of the Interior, and if no
two members are able to agree the matter shall be determined by such Secretary.
Where in his judgment the public interests will be thereby subserved, the Secretary of
the Interior may appoint in the Choctaw, Chickasaw, Creek, or Cherokee Nation a sepa
rate town-site commission for any town, in which event as to that town such local com
mission may exercise the same authority and perform the same duties which would other
wise devolve upon the commission for that nation. Every such local commission shall be
appointed in the manner provided in the act approved June twenty-eighth, eighteen hun
dred and ninety-eight, entitled "An act for the protection of the people of the Indian
Territory."
The Secretary of the Interior, where in his judgment the public interests will be thereby
subserved, may permit the authorities of any town in any of said nations, at the expense
of the town, to survey, lay out, and plat the site thereof, subject to his supervision and
approval, as in other instances.
As soon as the plat of any town site is approved, the proper commission shall with all
reasonable dispatch and within a limited time, to be prescribed by the Secretary of the
Interior, proceed to make the appraisement of the lots and improvements, if any, thereon,
and after the approval thereof by the Secretary of the Interior, shall, under the super
vision of such Secretary, proceed to the disposition and sale of the lots in conformity with
anv then existing act of Congress or agreement with the tribe approved by Congress, and
if the proper commission shall not complete such appraisement and sale within the time
limited by the Secretary of the Interior, they shall receive no pay for such additional time
as may be taken by them, unless the Secretary of the Interior for good cause shown shall
expressly direct otherwise.
The Secretary of the Interior may, for good cause, remove any member of any town-site
commission, tribal or local, in any of said nations, and may fill the vacancy thereby made
or any vacancy otherwise occurring in like manner as the place was originally filled.
It shall not be required that the town-site limits established in the course of the plat
ting and disposing of town lots and the corporate limits of the town, if incorporated,
shall be identical or coextensive, but such town-site limits and corporate limits shall be
so established as to best subserve the then present needs and the reasonable prospective
growth of the town, as the same shall appear at the times when such limits are respec
tively established : Provided further, That the exterior limits of all town sites shall be
designated and fixed at the earliest practicable time under rules and regulations prescribed
by the Secretary of the Interior.
Upon the recommendation of the Commission to the Five'Civilized Tribes the Secretary
of the Interior is hereby authorized at any time before allotment to set aside and reserve
from allotment any lands in the Choctaw, Chickasaw, Creek, or Cherokee nations, not
exceeding one hundred and sixty acres in any one tract, at such stations as are or shall
be established in conformity with law on the line of any railroad which shall be con
structed or be in process of construction in or through either of said nations prior to the
allotment of the lands therein, and this irrespective of the population of such town site at
the time. Such town sites shall be surveyed, laid out, and platted, and the lands therein
disposed of for the benefit of the tribe in the manner herein prescribed for other town
sites : Provided further, That whenever any tract of land shall be set aside as herein pro
vided which is occupied by a member of the tribe, such occupant shall be fully compen
sated for his improvements thereon under such rules and regulations as may be pre
scribed by the Secretary of the Interior : Provided, That hereafter the Secretary of the
Interior may, whenever the chief executive or principal chief of said nation fails or
refuses to appoint a town-site commissioner for any town or to fill any vacancy caused
by the neglect or refusal of the town-site commissioner appointed by the chief executive
or principal chief of said nation to qualify or act, in his discretion, appoint a commis
sioner to fill the vacancy thus created.
1.1. Any person in rightful possession of any town lot having improvements
thereon, other than temporary buildings, fencing, and tillage, shall have the right
DEPARTMENT OF THE INTERIOR.
LAWS, DECISIONS, AND REGULATIONS AFFECTING
THE WORK OF THE COMMISSIONER TO
THE FIVE CIVILIZED TRIBES, j
1893 TO 1906,
TOGETHER
WITH MAPS SHOWING CLASSIFICATION OF LANDS IN
THE CHICKASAW, CHOCTAW, CHEROKEE, CREEK,
AND SEMINOLE NATIONS, AND RECORDING
DISTRICTS, RAILROADS, AND PRINCIPAL
TOWNS OF THE INDIAN TERRITORY.
•*Ek5H i
£*i ff
COMPILED BY THE COMMISSIONER TO THE
FIVE CIVILIZED TRIBES.
WASHINGTON:
GOVERNMENT PRINTING OFFICE.
1906.
IX-
CONTENTS.
Page.
PART I.— LEGISLATION AND AGREEMENTS:
Act of March 3, 1893 (27 Stat. L., 645) 11
Act of March 2, 1805 (28 Stat. L., 939) ' •'
Actof June 10, 1896 (29 Stat. L., 321) .. 12
Act of June 7, 1897 (30 Stat. L., 83).. 13
Actof June 28, 1898 (30 Stat. L , 495) 14
Curtis Act ,4
Atoka agreement 22
Act of July 1, 1898 (30 Stat. L., 591) 30
Agreement with" Seminoles, concluded December .16, 1897, approved by Congress July
1, 1898 (30 Stat. L.,567).. 30
Act of March 1, 1899 (30 Stat. L, 939) 33
Actof March 3, 1899 (30 Stat. L., 1233).. 33
Act of May 31, 1900 (31 Stat. L.,221) 33
Agreement with Seminoles, concluded October 7, 1899, approved by Congress June 2,
1900 (31 Stat. L., 250) 33
Act of March 3, 1901 (31 Stat. L., 1073) 36
Agreement with Creeks, approved March 1, 1901, and ratified by Creeks May 25, 1901 (31
Stat. L., 861) 36
Act of February 28, 1902 (32 Stat. L., 43) 45
Actof May 27, 1902 (32 Stat. L., 245). 51
Agreement with Creeks, approved by Congress June 30, 1902, and ratified by Creeks
July 26, 1902 (32 Stat. L., 500) 53
Agreement with Choctaws and Chickasaws, approved by Congress July 1, 1902, and
ratified by Choctaws and Chickasaws September 25, 1902 (32 Stat. L., 641) _ 57
Agreement with Cherokees, approved by Congress July 1, 1902, and ratified by Chero-
kees August 7, 1902 (32 Stat. L., 716) -... 70
Actof March 3, 1903 (32 Stat. L., 982) 79
Act of April 21, 1904 (33 Stat. L., 189) 81
Act of April 28, 1904 (33 Stat. L., 573) 83
Act of April 28, 1904 (33 Stat. L., 544) 84
Act of March 3, 1905 (33 Stat. L., 1060) 85
Joint resolution extending the tribal existence of the Government of the Five Civi
lized Tribes of Indians in the Indian Territory, public resolution No. 7, approved
March 2, 1906 88
Act of April 26, 1906 (public No. 129) 88
Act of June 21, 1906 (public No. 258) 97
Seminole townsite act, passed by the Seminole Council and approved April 23, 1897 105
PART 2. — DECISIONS OF THE DEPARTMENT OF THE INTERIOR RENDERED IN CERTAIN
CHOCTAW, CHICKASAW, CREEK, AND CHEROKEE ENROLLMENT CASES.
(A) Choctaw and Chickasaw nations:
Buckholts, James M.,etal 109
Coleman, Richard B., etal 113
Involving the conclusiveness of right to enrollment of persons admitted to
citizenship by .the acts of the Choctaw council.
Thompson, William C 130
Long, James S., etal 138
Relative to enrollment by revisory board of the Choctaw Nation subsequent to
October 10, 1896.
Pearce, Thornton D 125
Relative to intermarried citizens marrying out.
3
CONTENTS.
PART 2.— DECISIONS OF THE DEPARTMENT OF THE INTERIOR— Continued.
(A) Choctaw and Chickasaw nations— Continued.
Jones, Ella 127
Relative to marriage of white woman to citizen of the Choctaw Nation residing
in the Chickasaw Nation.
McMenamin, Emma 128
Relative to marriage of white persons to intermarried citizens of the Choctaw
and Chickasaw nations.
Adams, Wiley 144
McCoy, Clay 147
Vaughan, Benjamin J., et al 150
West, Loula, et al 153
Involving the question of jurisdiction of the Commission to the Five Civilized
Tribes in 1896.
Martin, Mary Elizabeth 157
Involving the right to enrollment of white children of intermarried citizens of
the Choctaw and Chickasaw nations.
Perry, Joe and Dillard 165
Relative to transfer of names from the rolls of Choctaw and Chickasaw f reed-
men to the rolls of citizens by blood of said nations.
(B) Creek Nation:
London, Frank, et al \ 171
Relative to status of applicants for Creek citizenship whose names have been
stricken from 1895 roll by "committee of eighteen."
Durant, William 172
General rule of statutory construction as applied to act of March 3, 1905 (33
Stat. L., 1060).
Lewis, Rosella 173
Act of March 3, 1905, does not extend time for making application for claimants
born prior to May 25, 1901.
(C) Cherokee Nation:
Welcome, Lemuel 174
Citizenship in the Cherokee Nation not acquired by intermarriage with Chero
kee freedmen.
Bowers, Belle Z ... 176
Relative to the jurisdiction of the Commission to the Five Civilized Tribes
under the act of June 10, 1896.
Ward, Clara A 178
Relative to expatriation under the provisions of section 2, article 1, Cherokee
constitution.
Lasley, Thomas J., et al 180
Commissioner not concluded by judgment of the United States district court,
admitting appellants to Cherokee citizenship where such judgment was obtained
by fraud.
Riley, Mary Ann, et al .' 182
Relative to the force and effect to be given to the Kern-Clifton enrollment.
Still, Harry 184
Force and effect to be given decree of supreme court of the Cherokee Nation.
Rogers, Stonewall J .. 185
Minor's citizenship not forfeited by failure of parent to comply with act of
Cherokee Council approved December 4, 1894.
Strickland, Mary, et al 187
Paragraph 9, section 21, of the act of Congress approved June 28, 1898 (30 Stat. L.,
495), applicable to minors and adults alike.
PART 3. — DIGEST ov DECISIONS RENDERED BY THE DEPARTMENT OF THE INTERIOR AND
THE COMMISSIONER OF INDIAN AFFAIRS FROM JULY 1, 1904, TO MAY 31, 1906, INCLU
SIVE, UPON APPEALS FROM THE DECISIONS OF THE COMMISSION TO THE FIVE CIV
ILIZED TRIBES AND THE COMMISSIONER TO THE FIVE CIVILIZED TRIBES IN ALLOT
MENT CONTEST CASES. , 181'
PART 4.— STATEMENT SHOWING THE DISPOSITION AND PRESENT STATUS OF ALLOTMENT
CONTEST CASES APPEALED FROM THE DECISIONS OF THE COMMISSION TO THE FIVE
CIVILIZED TRIBES AND COMMISSIONER TO THE FIVE CIVILIZED TRIBES AND IN
WHICH DECISIONS ON SAID APPEALS HAVE BEEN RENDERED FROM JULY 1, 1904,
TO MAY 31, 1906, INCLUSIVE.. 2£3
PART 5.— RULES OF PRACTICE IN CHOCTAW, CHICKASAW, AND CHEROKEE ALLOTMENT
CONTEST CASES... 233
CONTENTS. 5
Page.
PART 6.— REGULATIONS GOVERNING THE RECOGNITION OF AGENTS AND ATTORNEYS BE
FORE THE COMMISSION TO THE FIVE CIVILIZED TRIBES AND LAND OFFICES ESTAB
LISHED BY SAID COMMISSION .". 339
PART 7.— CHOCTAW AND CHICKASAW ENROLLMENT CASES: (REGULATIONS OF COMMIS
SIONER OF JANUARY 2, 1906, RELATIVE TO PETITIONS FOR REHEARING UNDER THE
LOULA WEST, MARY ELIZABETH MARTIN, AND JOE AND DILLARD PERRY ENROLL
MENT CASES 243
PART 8.— REGULATIONS GOVERNING THE UNRESTRICTED ALIENATION OF LANDS FOR
TOWNSITE PURPOSES IN INDIAN TERRITORY, PRESCRIBED BY THE SECRETARY OF
THE INTERIOR 247
PART 9.— MAPS:
(1) Showing the approximate classification of the land of the Chickasaw Nation.
(2) Showing the approximate classification of the land of the Choctaw Nation.
(3) Showing the approximate classification of the land of the Cherokee Nation.
(4) Showing the approximate classification of the land of the Creek and Seminole nations.
(5) Showing recording districts, railroads, and principal towns of the Indian Territory.
PART I.
LEGISLATION AND AGREEMENTS.
LETTER OF TRANSMTITAL.
DEPARTMENT OF THE INTERIOR,
COMMISSIONER TO THE FIVE CIVILIZED TRIBES,
Muskogec, Ind. T., June 15, 1906.
SIR : I have the honor to transmit herewith a compilation of laws, decisions,
and regulations affecting the work of the Commissioner to the Five Civilized
Tribes, with maps, to June, 190G.
Respectfully, TAMS BIXBY, Commissioner.
The SECRETARY OF THE INTERIOR.
9
OF THF
UNIVERSITY
OF
LEGISLATION AFFECTING WORK OF THE COMMISSION TO THE
FIVE CIVILIZED TRIBES.
[Act of March 3, 1893 (27 Stat. L., 645).]
SEC. ]G. The President shall nominate and, by and with the advice and con
sent of the Senate, shall appoint three commissioners to enter into negotiations
with the Cherokee Nation, the Choctaw Nation, the Chickasaw Nation, the Mus-
cogee (or Creek) Nation, the Seminole Nation, for the purpose of extinguish
ment of the national or trihal title to any lands within that territory now held
by any and all of such nations or tribes, either by cession of the same or some
part thereof to the United States, or by the allotment and division of the same
in severalty among the Indians of such nations or tribes, respectively, as may
be entitled to the same, or by such other method as may be agreed upon between
the several nations and tribes aforesaid, or each of them, with the United
States, with a view to such an adjustment, upon the basis of justice and equity,
as may, with the consent of such nations or tribes of Indians, so far as may
be necessary, be requisite and suitable to enable the ultimate creation of a
State or States of the Union which shall embrace the lands within said Indian
Territory.
The commissioners so appointed shall each receive a salary, to be paid during
such time as they may be actually employed, under direction of the President,
in the duties enjoined by this act, at the rate of five thousand dollars per annum,
and shall also be paid their reasonable and proper expenses incurred in prose
cution of the objects of this act, upon accounts therefor to be rendered to and
allowed by the Secretary of the Interior from time to time. That such com
missioners shall have power to employ a secretary, a stenographer, and such
interpreter or interpreters as may be found necessary to the performance of
their duties, and by order to fix their compensation, which shall be paid, upon
the approval of the Secretary of the Interior, from time to time, with their
reasonable and necessary expenses, upon accounts to be rendered as aforesaid ;
and may also employ, in like manner and with the like approval, a surveyor or
other assistant or agent, which they shall certify in writing to be necessary to
the performance of any part of their duties.
Such commissioners shall, under such regulations and directions as shall be
prescribed by the President, through the Secretary of the Interior, enter upon
negotiation with the several nations of Indians as aforesaid in the Indian Ter
ritory, and shall endeavor to procure, first, such allotment of lands in severalty
to the Indians belonging to each such" fiat ton, tribe, or band, respectively, as
may be agreed upon as just and proper to provide for each such Indian a
sufficient quantity of land for his or her needs, in such equal distribution and
apportionment as may be found just and suited to the circumstances; for
which purpose, after the terms of such an agreement shall have been arrived
at, the said commissioners shall cause the land of any such nation, or tribe, or
band to be surveyed and the proper allotment to be designated ; and, secondly,
to procure the cession, _for such price and upon such terms as shall be agreed
upon, of any lands not found necessary to be so allotted or divided, to the
United States; and to make proper agreements for the investment or holding
by the United States of such moneys as may be paid or agreed to be paid to
such nation, or tribes, or bands, or to any of the Indians thereof, for the ex
tinguishment of their therein. But said commissioners shall, however, have
power to negotiate any and all such agreements as, in view of all the circum
stances affecting the subject, shall be found requisite and suitable to such an
arrangement of the rights and interests and affairs of such nations, tribes,
bunds, or Indians, or any of them, to enable the ultimate creation of a Terri-
11
12 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
tory of the United States with a view to the admission of the same as a State
in the Union.
The commissioners shall, at any time, or from time to time, report to the
Secretary of the Interior their transactions and the progress of their negotia
tions, and shall, at any time, or from time to time, if separate agreements shall
be made by them with any nation, tribe, or band in pursuance of the authority
hereby conferred, report the same to the Secretary of the Interior for submis
sion to Congress for its consideration and ratification.
For the purposes aforesaid there is hereby appropriated, out of any moneys in
the Treasury of the United States, the sum of fifty thousand dollars, to be imme
diately available.
Neither the provisions of this section nor the negotiations or agreements which
may be had or made thereunder shall be held in any way to waive or impair
any right of sovereignty which the Government of the United States has over or
respecting said Indian Territory or the people thereof, or any other right of the
Government relating to said Territory, its lands, or the people thereof.
Approved, March 3, 1893.
[Act of March 2, 1895 (28 Stat. L., 939).]
For continuing the work of the Commission appointed under section sixteen of
the act entitled "An act making appropriations for current and contingent ex
penses and fulfilling treaty stipulations with Indian tribes for fiscal year ending
June thirtieth, eighteen hundred and ninety-four," approved March third,
eighteen hundred and ninety-three, including the unexpended balance of the
present appropriation, thirty thousand dollars, to be immediately available; and
the President is hereby authorized to appoint two additional members of said
Commission, who shall receive the compensation and expenses provided in said
act for members of said Commission : Provided, That so much of said act as
authorizes the employment of a stenographer and a surveyor, or other assistant
or agent, is hereby repealed.
[Act of June 10, 1896 (29 Stat. L., 321).]
For salaries and expenses of the commissioners appointed under acts of Con
gress approved March third, eighteen hundred and ninety-three, and March
second, eighteen hundred and ninety-five, to negotiate with the Five Civilized
Tribes in the Indian Territory, the sum of forty thousand dollars, to be imme
diately available; and said Commission is directed to continue the exercise of
the authority already conferred upon them by law and endeavor to accomplish
the objects heretofore prescribed to them and report from time to time to
Congress.
That said Commission is further authorized and directed to proceed at onco to
hear and determine the application of all persons who may apply to them for
citizenship in any of said nations, and after said hearing they shall determine
the right of said applicant to be so admitted and enrolled : Provided, hoivevcr,
That such application shall be made to such commissioners within three months
after the passage of this act. The said Commission shall decide all such appli
cations within ninety days after the same shall be made. That in determining
all such applications said Commission shall respect all laws of the several
nations or tribes, not inconsistent with the laws of the United States, and all
treaties with either of said nations or tribes, and shall give due force and effect
to the rolls, usages, and customs of each of said nations or tribes : And provided
further, That the rolls of citizenship of the several tribes as now existing are
hereby confirmed, and any person who shall claim to be entitled to be added to
said rolls as a citizen of either of said tribes and whose right thereto has either
been denied or not acted upon, or any citizen who may within three months
from and after- the passage of this act desire such citizenship, may apply to the
legally constituted court or committee designated by the several tribes for such
citizenship, and such court or committee shall determine such application within
thirty days from the date thereof.
In the performance of such duties said Commission shall have power and
authority to administer oaths, to issue process for and compel the attendance of
witnesses, and to send for persons and papers, and all depositions and affidavits
and other evidence in any form whatsoever heretofore taken where the wit
nesses giving said testimony are dead or now residing beyond the limits of said
Territory, and to use every fair and reasonable means within their reach for
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 13
the purpose of determining the rights of persons claiming such citizenship, or to
protect any of said, nations from fraud or wrong, and the rolls so prepared by
them shall be hereafter held to be the true and correct rolls of persons entitled
to the rights of citizenship in said several tribes: Provided, That if the tribe,
or any person, be aggrieved with the decision of the tribal authorities or the
Commission provided for in this act, it or he may appeal from such decision to
the United States district court: Provided, however, That the appeal shall be
taken within sixty days, and the judgment of the court shall be final.
That the said Commission, after the expiration of six months, shall cause a
'complete roll of citizenship of each of said nations to be made up from their
records, and add thereto the names of citizens whose right may be conferred
under this act, and said rolls shall be, and are hereby, made rolls of citizenship
of said nations or tribes, subject, however, to the determination of the United
States courts, as provided herein.
The Commission is hereby required to file the lists of members as they finally
approve them with the Commissioner of Indian Affairs, to remain there for use
as the final judgment of the duly constituted authorities. And said Commission
shall also make a roll of freedmen entitled to citizenship in said tribes, and shall
include their names in the lists of members to be filed with the Commissioner of
Indian Affairs. And said Commission is further authorized and directed to
make a full report to Congress of leases, tribal and individual, with the area,
amount, and value of the property leased and the amount received therefor, and
by whom and from whom said property is leased, and is further directed to
make a full and detailed report as to the excessive holdings of the members of
said tribes and others.
It is hereby declared to be the duty of the United States to establish a govern
ment in the Indian Territory which will rectify the many inequalities and dis
criminations now existing in said Territory, and afford needful protection to
the lives and property of all citizens and residents thereof.
[Act of June 7, 1897 (30 Stat. L., 83).]
For salaries of the commissioners appointed under acts of Congress approved
March third, eighteen hundred and ninety-three, and March second, eighteen
hundred and ninety-five, to negotiate with the Five Civilized Tribes in the
Indian Territory, twenty-five thousand dollars; for expenses of commissioners
and necessary expenses of employees, ten thousand dollars, of which sum so
much as may be necessary for expenses of employees for eighteen hundred and
ninety-seven, to be immediately available : Provided, That two dollars per diem
for expenses of a clerk detailed as special disbursing agent from date of original
detail by Interior Department, while on duty with the Commission, shall be
paid therefrom ; for clerical help, including secretary of Commission, five thou
sand six hundred dollars ; for contingent expenses of the Commission, one
thousand four hundred dollars ; in all, forty-two thousand dollars : Provided,
That out of the appropriations for salaries and expenses of said commissioners
for the fiscal year ending June thirtieth, eighteen hundred and ninety-seven, and
prior years, there shall be paid for services heretofore performed, to F. E. Willie,
twenty-seven dollars ; A. W. Dickey, thirty-nine dollars ; W. H. McClendon,
thirty-three dollars; Henry Stroup, five hundred dollars; N. L. Steele, one hun
dred' dollars : And provided further, The disbursing agent of said Commission
may reimburse A. S. McKenuon out of said fund fifty dollars heretofore paid
by him to W. S. Olive for services. That the Commission appointed to negotiate
with the Five Civilized Tribes in the Indian Territory shall examine and report
to Congress whether the Mississippi Choctaws under their treaties are not
entitled to all the rights of Choctaw citizenship except an interest in the Choc-
taw annuities: Provided further, That on and after January first, eighteen hun
dred and ninety-eight, the United States courts in said Territory shall have
original and exclusive jurisdiction and authority to try and determine all civil
causes in law and equity thereafter instituted and all criminal causes for the
punishment of any offense committed after January first, eighteen hundred and
ninety-eight, by any person in said Territory, and the United States commis
sioners in said Territory shall have and exercise the powers and jurisdiction
already conferred upon them by existing laws of the United States as respects
all persons and property in said Territory ; and the laws of the United States
and the State of Arkansas in force in the Territory shall apply to all persons
therein, irrespective of race, said courts exercising jurisdiction thereof as now
conferred upon them in the trial of like causes ; and any citizen of any one of
14 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
said tribes otherwise qualified who can speak and understand the English lan
guage may serve as a juror in any of said courts.
That said Commission shall continue to exercise all authority heretofore con
ferred on it by law to negotiate with the Five Tribes, and any agreement made
by it with any of said tribes, when ratified, shall operate to suspend any pro
visions of this act if in conflict therewith as to said nation : Provided, That the
words " rolls of citizenship," as used in the act of June tenth, eighteen hundred
and ninety-six, making appropriations for current and contingent expenses of
the Indian Department and fulfilling treaty stipulations with various Indian
tribes for the fiscal year ending June thirtieth, eighteen hundred and ninety-
seven, shall be construed to mean the last authenticated rolls of each tribe
which have been approved by the council of 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 courts thereof, or the Commission under the act of June tenth,
eighteen hundred and ninety-six. And all other names appearing upon such
rolls shall be open to investigation by such Commission for a period of six
months after the passage of this act. And any name appearing on such rolls
and not confirmed by the act of June tenth, eighteen hundred and ninety-six, as
herein construed, may be stricken therefrom by such Commission where the
party affected shall have ten days' previous notice that said Commission will
investigate and determine the right of such party to remain upon such roll as a
citizen of such nation : Provided also, That anyone whose name shall be stricken
from the roll by such Commission shall have the right of appeal, as provided in
the act of June tenth, eighteen hundred and ninety-six.
That on and after January first,' eighteen hundred, and ninety-eight, all acts,
ordinances, and resolutions of the council of either of the aforesaid Five Tribes
passed shall be certified immediately upon their passage to the President of the
United States and shall not take effect if disapproved by him, or until thirty
days after their passage : Provided, That this act shall not apply to resolutions
for adjournment, or any acts, or resolutions, or ordinances in relation to negotia
tions with commissioners heretofore appointed to treat with said tribes.
[Act of June 28, 1898 (30 Stat. L., 495).]
(Curtis Act.)
AN ACT For the protection of the people of the Indian Territory, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled, That in all criminal prosecutions in the
Indian Territory against officials for embezzlement, bribery, and embracery the
word " officer," when the same appears in the criminal laws heretofore extended
over and put in force in said Territory, shall include all officers of the several
tribes or nations of Indians in said Territory.
SEC. 2. That when in the progress of any civil suit, either in law or equity,
pending in the United States court, in any district in said Territory, it shall
appear to the court that the property of any tribe is in any way affected by the
issues being heard, said court is hereby authorized and required to make said
tribe a party to said suit by service upon the chief or governor of the tribe, and
the suit shall thereafter be conducted and determined as if said tribe had been
an original party to said action.
SEC. 3. That said courts are hereby given jurisdiction in their respective dis
tricts to try cases against those who may claim to hold as members of a tribe
and whose membership is denied by the tribe, but who continue to hold said
lands and tenements notwithstanding the objection of the tribe; and if it be
found upon trial that the same are held unlawfully against the tribe by those
claiming to be members thereof, and the membership and right are disallowed
by the Commission to the Five Tribes, or the United States court, and the judg
ment has become final, then said court shall cause the parties charged with
unlawfully holding said possessions to be removed from the same and cause the
lands and tenements to be restored to the person or persons or nation or tribe of
Indians entitled to the possession of the same : Provided always, That any person
being a noncitizen in possession of lands, holding the possession thereof under
an agreement, lease, or improvement contract with either of said nations or
tribes, or any citizen thereof, executed prior to January first, eighteen hundred
and ninety-eight, may, as to lands not exceeding in amount one hundred and
sixty acres, in defense of any action for the possession of said lands show that
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 15
he is and has been in peaceable possession of such lands, and that he has while in
such possession made lasting and valuable improvements thereon, and that he
has not enjoyed the possession thereof a sufficient length of time to compensate
him for such improvements. Thereupon the court or jury trying said cause shall
determine the fair and reasonable value of such improvements and the fair and
reasonable rental value of such lands for the time the same shall have been
occupied by such person, and if the improvements exceed in value the amount of
rents with which such person should be charged, the court, in its judgment, shall
specify such time as will, in the opinion of the court, compensate such person
for the balance due, and award him possession for such time unless the amount
be paid by claimant within such reasonable time as the court shall specify. If
the finding be that the amount of rents exceed the value of the improvements,
judgment shall be rendered against the defendant for such sum, for which exe
cution may issue.
SEC. 4. That all persons who have heretofore made improvements on lands
belonging to any one of the said tribes of Indians, claiming rights of citizenship,
whose claims have been decided adversely under the act of Congress approved
June tenth, eighteen hundred and ninety-six, shall have possession thereof until
and including December thirty-first, eighteen hundred and ninety -eight, and may,
prior to that time, sell or dispose of the same to any member of the tribe owning
the land who desires to take the same in his allotment : Provided, That this sec
tion shall not apply to improvements which have been appraised and paid for, or
payment tendered by the Cherokee Nation under the agreement with the United
States approved by Congress March third, eighteen hundred and ninety-three.
SEC. 5. That before any action by any tribe or person shall be commenced
under section three of this act it shall be the duty of the party bringing the same
to notify the adverse party to leave the premises for the possession of which the
action is about to be brought, which notice shall be served at least thirty days
before commencing the action by leaving a written copy with the defendants, or,
if he can not be found, by leaving the same at his last known place of residence
or business with any person occupying the premises over the age of twelve
years, or, if his residence or business address can not be ascertained, by leaving
the same with any person over the age of twelve years upon the premises sought
to be recovered and described in said notice; and if there be no person with
whom said notice can be left, then by posting same on the premises.
SEC. 0. That the summons shall not issue in such action until the chief or gov
ernor of the tribe, or person or persons bringing suit in his own behalf, shall
have filed a sworn complaint, on behalf of the tribe or himself, with the court,
which shall, as near as practicable, describe the premises so detaiyed, and shall
set forth a detention without the consent of the person bringing said suit or the
tribe, by one whose membership is denied by it : Provided, That if the chief or
governor refuse or fail to bring suit in behalf of the tribe, then any member of
the tribe may make complaint and bring said suit.
SEC. 7. That the court in granting a continuance of any case, particularly
under section three, may, in its discretion, require the party applying therefor to
give an undertaking to the adverse party, with good and sufficient securities, to
be approved by the judge of the court, conditioned for the payment of all dam
ages and costs and defraying the rent which may accrue if judgment be rendered
against him.
SEC. 8. That when a judgment for restitution shall be entered by the court the
clerk shall, at the request of the plaintiff or his attorney, issue a writ of exe
cution thereon, which shall command the proper officer of the court to cause
the defendant or defendants to be forthwith removed and ejected from the prem
ises and the plaintiff given complete and undisturbed possession of the same.
The writ shall also command the said officer to levy upon the property of the
defendant or defendants subject to execution, and also collect therefrom the
costs of the action and all accruing costs in the service of the writ. Said writ
shall be executed within thirty days.
SEC. 9. That the jurisdiction of the court and municipal authority of the city
of Fort Smith for police purposes in the State of Arkansas is hereby extended
over all that strip of land in the Indian Territory lying and being situate be
tween the corporate limits of the said city of Fort Smith and the Arkansas
and Poteau rivers, and extending up the said Poteau River to the mouth of
Mill Creek ; and all the laws and ordinances for the preservation of the peace
and health of said city, as far as the same are applicable, are hereby put in force
therein : Provided, That no charge or tax shall ever be made or levied by said
city agaiust said laud or the tribe or nation to whom it belongs.
16 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
SEC. 10. That all actions for restitution of possession of real property under
this act must be commenced by the service of a summons within two years
after the passage of this act, where the wrongful detention or possession began
prior to the date of its passage; and all actions which shall be commenced
hereafter, based upon wrongful detention or possession committed since the
passage of this act must be commenced within two years after the cause of
action accrued. And nothing in this act shall take away the right to maintain
an action for unlawful and forcible entry and detainer given by the act of
Congress passed May second, eighteen hundred and ninety (twenty-sixth United
States Statutes, page ninety-five).
SEC. 11. That when the roll of citizenship of any one of said nations or tribes
is fully completed as provided by law, and the survey of the lands of said
nation or tribe is also completed, the Commission heretofore appointed under
acts of Congress, and known as the " Dawes Commission," shall proceed to allot
the exclusive use and occupancy of the surface of all the lands of said nation
or tribe susceptible of allotment among the citizens thereof, as shown by said
roll, giving to each, so far as possible, his fair and equal share thereof, consider
ing the nature and fertility of the soil, location, and value of same ; but all oil,
coal, asphalt, and mineral deposits in the lands of any tribe are reserved to such
tribe, and no allotment of such lands shall carry the title to such oil, coal,
asphalt, or mineral deposits ; and all town sites shall also be reserved to the
several tribes, and shall be set apart by the Commission heretofore mentioned
as incapable of allotment. There shall also be reserved from allotment a suffi
cient amount of lands now occupied by churches, schools, parsonages, charitable
institutions, and other public buildings for their present actual and necessary
use, and no more, not to exceed five acres for each school and one acre for each
church and each parsonage, and for such new schools as may be needed ; also
sufficient land for burial grounds where necessary. When such allotment of the
lands of any tribe has been by them completed, said Commission shall make full
report thereof to the Secretary of the Interior for his approval : Provided, That
nothing herein contained shall in any way affect any vested legal rights which
may have been heretofore granted by act of Congress, nor be so construed as
to confer any additional rights upon any parties claiming under any such act
of Congress : Provided further. That whenever it shall appear that any mem
ber of a tribe is in possession of lands, his allotment may be made out of the
lands in his possession, including his home if the holder so desires : Provided
further, That if the person to whom an allotment shall have been made shall
be declared, upon appeal as herein provided for, by any of the courts of the
United States in or for the aforesaid Territory, to have been illegally accorded
rights of citizenship, and for that or any other reason declared to be not enti
tled to any allotment, he shall be ousted and ejected from said lands; that all
persons known as intruders who have been paid for their improvements under
existing laws and have not surrendered possession thereof who may be found
under the provisions of this act to be entitled to citizenship shall, within ninety
days thereafter, refund the amount so paid them, with six per centum interest,
to the tribe entitled, thereto ; and upon their failure so to do said amount shall
become a lien upon all improvements owned by such person in such Territory,
and may be enforced by such tribe ; and unless such person makes such resti
tution no allotments shall be made to him : Provided further, That the lands
allotted shall be nontransferable until after full title is acquired and shall be
liable for no obligations contracted prior thereto by the allottee, and shall be
nontaxable while so held: Provided further, That all towns and cities here
tofore incorporated or incorporated under the provisions of this act are hereby
authorized to secure, by condemnation or otherwise, all the lands actually
necessary for public improvements, regardless of tribal lines; and when the
same can not be secured otherwise than by condemnation, then the same may
be acquired as provided in sections nine hundred and seven and nine hundred
and twelve, inclusive, of Mansfield's Digest of the Statutes of Arkansas.
SEC. 12. That when report of allotments of lands of any tribe shall be made to
the Secretary of the Interior, as hereinbefore provided, he shall make a record
thereof, and when he shall confirm such allotments the allottees shall remain
in peaceable and undisturbed possession thereof, subject to the provisions of
this act.
SEC. 13. That the Secretary of the Interior is hereby authorized and directed
from time to time to provide rules and regulations in regard to the leasing of
oil, coal, asphalt, and other minerals in said Territory, and all such leases shall
be made by the Secretary of the Interior ; and any lease for any such minerals
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 17
otherwise made shall be absolutely void. No lease shall he made or renewed
for a longer period than fifteen years, nor cover the mineral in more than six
hundred and forty acres of land, which shall conform as nearly as possible to the
surveys. Lessees shall pay on each oil, coal, asphalt, or other mineral claim at
the rate of one hundred dollars per annum, in advance, for the first and second
years ; two hundred dollars per annum, in advance, for the third and fourth
years, and five hundred dollars, in advance, for each succeeding year thereafter,
as advanced royalty on the mine or claim on which they are made. All such
payments shall be a credit on royalty when each said mine is developed and
operated and its production is in excess of such guaranteed annual advanced
payments ; and all lessees must pay said annual advanced payments on each claim,
whether developed or undeveloped ; and should any lessee neglect or refuse to
pay such advanced annual royalty for the period of sixty days after the same
becomes due and payable on any lease, the lease on which default is made shall
become null and void, and the royalties paid in advance shall then become and
be the money and property of the tribe. Where any oil, coal, asphalt, or other
mineral is hereafter opened on land allotted, sold, or reserved, the value of the
use of the necessary surface for prospecting or mining, and the damage done to
the other land and improvements, shall be ascertained under the direction of the
Secretary of the Interior and paid to the allottee or owner of the land, by the
lessee or party operating the same, before operations begin : Provided, That
nothing herein contained shall impair the rights of any holder or owner of a
leasehold interest in any oil, coal rights, asphalt, or mineral which have been
assented to by act of Congress, but all such interest shall continue unimpaired
hereby, and shall be assured to such holders or owners by leases from the
Secretary of the Interior for the term not exceeding fifteen years, but subject
to payment of advance royalties as herein provided, when such leases are not
operated, to the rate of royalty on coal mined, and the rules and regulations to
be prescribed by the Secretary of the Interior, and preference shall be given to
such parties in renewals of such leases : And provided further, That when,
under the customs and laws heretofore existing and prevailing in the Indian
Territory, leases have been made of different groups or parcels of oil, coal,
asphalt, or other mineral deposits, and possession has been taken thereunder
and improvements made for the development of such oil, coal, asphalt, or other
mineral deposits, by lessees or their assigns, which have resulted in the produc
tion of oil, coal, asphalt, or other mineral in commercial quantities by such
lessees or their assigns, then such parties in possession shall be given prefer
ence in the making of new leases, in compliance with the directions of the Sec
retary of the Interior ; and in making new leases due consideration shall be
made for the improvements of such lessees, and in all cases of the leasing or
renewal of leases of oil, coal, asphalt, and other mineral deposits preference
shall be given to parties in possession who have made improvements. The rate
of royalty to be paid by all lessees shall be fixed by the Secretary of the Interior.
SEC. 14. That the inhabitants of any city or town in said Territory having two
hundred or more residents therein may proceed, by petition to the United States
court in the district in which such city or town is located, to have the same in
corporated as provided in chapter twenty-nine of Mansfield's Digest of the
Statutes of Arkansas, if not already incorporated thereunder; and the clerk of
said court shall record all papers and perform all the acts required of the
recorder of the county, or the clerk of the county court, or the secretary of
state, necessary for the incorporation of any city or town, as provided in Mans
field's Digest, and such city or town government, when so authorized and organ
ized, shall possess all the powers and exercise all the rights of similar munici
palities in said State of Arkansas. All male inhabitants of such cities and
towns over the age of twenty-one years, who are citizens of the United States
or of either of said tribes, who have resided therein more than six months next
before any election held under this act, shall be qualified voters at such election.
That mayors of such cities and towns, in addition to their other powers, shall
have the same jurisdiction in all civil and criminal cases arising within the
corporate limits of such cities and towns as, and coextensive with, United
States commissioners in the Indian Territory, and may charge, collect, and
retain the same fees as such commissioners now collect and account for to the
United States ; and the marshal or other executive officer of such city or town
may execute all processes issued in the exercise of the jurisdiction hereby con
ferred, and charge and collect the same fees for similar services as are allowed
to constables under the laws now in force in said Territory.
33753— OG M 2
18 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
All elections shall be conducted under the provisions of chapter fifty-six of
said digest, entitled " Elections," so far as the same may be applicable ; and all
inhabitants of such cities and towns, without regard to race, shall be subject to
all laws and ordinances of such city or town governments, and shall have equal
rights, privileges, and protection therein. Such city or town governments shall
in no case have any authority to impose upon or levy any tax against any lands
in said cities or towns until after title is secured from the tribe; but all other
property, including all improvements on town lots, which for the purposes of
this act shall be deemed and considered personal property, together with all
occupations and privileges, shall be subject to taxation. And the councils of
such cities and towns, for the support of the same and for school and other pub
lic purposes, may provide by ordinance for the assessment, levy, and collection
annually of a tax upon such property, not to exceed in the aggregate two per
centum of the assessed value thereof, in manner provided in chapter one hun
dred and twenty-nine of said digest, entitled " Revenue," and for such purposes
may also impose a tax upon occupations and privileges.
Such councils may also establish and maintain free schools in such cities and
towns, under the provisions of sections sixty-two hundred and fifty-eight to
sixty-two hundred and seventy-six, inclusive, of said digest, and may exercise all
the powers conferred upon special school districts in cities and towns in the
State of Arkansas by the laws of said State when the same are not in conflict
with the provisions of this act.
For the purposes of this section all the laws of said State of Arkansas herein
referred to, so far as applicable, are hereby put in force in said Territory ; and
the United States court therein shall have jurisdiction to enforce the same, and
to punish any violation thereof, and the city or town councils shall pass such
ordinances as may be necessary for the purpose of making the laws extended
over them applicable to them and for carrying the same into effect: Provided,
That nothing in this act, or in the laws of the State of Arkansas, shall authorize
or permit the sale, or exposure for sale, of any intoxicating liquor in said Ter
ritory, or the introduction thereof into said Territory ; and it shall be the
duty of the district attorneys in said Territory and the officers of such munici
palities to prosecute all violators of the laws of the United States relating to
the introduction of intoxicating liquors into said Territory, or to their sale, or
exposure for sale, therein: Provided further, That owners and holders of
teases or improvements in any city or town shall be privileged to transfer the
same.
SEC. 15. That there shall be a commission in each town for each one of the
Chickasaw, Choctaw, Creek, and Cherokee tribes, to consist of one member to
be appointed by the executive of the tribe, who shall not be interested in town
property, other than his home ; one person to be appointed by the Secretary of
the Interior, and one member to be selected by the town. And if the executive
of the tribe or the town fail to select members as aforesaid, they may be se
lected and appointed by the Secretary of the Interior.
Said commissions shall cause to be surveyed and laid out town sites where
towns with a present population of two hundred or more are located, conform
ing to the existing survey, so far as may be, with proper and necessary streets,
alleys, and public grounds, including parks and cemeteries, giving to each town
such territory as may be required for its present needs and reasonable pros
pective growth ; and shall prepare correct plats thereof, and file one with the
Secretary of the Interior, one with the clerk of the United States court, one
with the authorities of the tribe, and one with the town authorities. And aM
town lots shall be appraised by said commission at their true value, excluding
improvements ; and separate appraisements shall be made of all improvements
thereon; and no such appraisement shall be effective until approved by the Sec
retary of the Interior, and in case of disagreement by the members of such com
mission as to the value of any lot the Secretary may fix the value thereof.
The owner of the improvements upon any town lot, other than fencing, tillage,
or temporary buildings, may deposit in the United States treasury, Saint Louis,
Missouri, one-half of such appraised value ; ten per centum within two months
and fifteen per centum more within six months after notice of appraisement,
and the remainder in three equal annual installments thereafter, depositing
with the Secretary of the Interior one receipt for each payment, and one with
the authorities of the tribe, and such deposit shall be deemed a tender to the
tribe of the purchase money for such lot.
If the owner of such improvements on any lot fails to make deposit of the pur
chase money as aforesaid, then such lot may be sold in the manner herein pro-
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 19
viiled for the sale of unimproved lots ; and when the purchaser thereof has
complied with the requirements herein for the purchase of improved lots he
may, hy petition, apply to the United States court within whose jurisdiction the
town is located for condemnation and appraisement of such improvements, find
petitioner shall, after judgment, deposit the value so fixed with the clerk of the
court ; and thereupon the defendant shall be required to accept the same in full
payment for his improvements or remove same from the lot within such time as
may be fixed by the court.
All town lots not improved as aforesaid shall belong to the tribe, and shall be
in like manner appraised, and, after approval by the Secretary of the Interior,
and due notice, sold to the highest bidder at public auction by said commission,
but not for less than their appraised value, unless ordered by the Secretary of the
Interior ; and purchasers may in like manner make deposits of the purchase
money with like effect, as in case of improved lots.
The inhabitants of any town may, within one year after the completion of
the survey thereof, make such deposit of ten dollars per acre for parks, ceme
teries, and other public grounds laid out by said commission with like effect as
for improved lots ; and such parks and public grounds shall not be used for any
purpose until such deposits are made.
The person authorized by the tribe or tribes may execute or deliver to any
such purchaser, without expense to him, a deed conveying to him the title to
such lands or town lots ; and thereafter the purchase money shall become the
property of the tribe; and all such moneys shall, when titles to all the lots in
the towns belonging to any tribe have been thus perfected, be paid per capita
to the members of the tribe : Provided, however, That in those townsites desig
nated and laid out under the provisions of this act where coal leases are now
being operated and coal is being mined there shall be reserved from appraise
ment and sale all lots occupied by houses of miners actually engaged in mining,
and only while they are so engaged, and in addition thereto a sufficient amount
of land, to be determined by the appraisers, to furnish homes for the men
actually engaged in working for the lessees operating said mines and a sufficient
amount for all buildings and machinery for mining purposes: And provided
further, That when the lessees shall cease to operate said mines, then, and in
that event, the lots of land so reserved shall be disposed of as provided for in
this act.
SEC. 10. That it shall be unlawful for any person, after the passage of this
act, except as hereinafter provided, to claim, demand, or receive, for his own
use or for the use of anyone else, any royalty on oil, coal, asphalt, or other
mineral, or on any timber or lumber, or any other kind of property whatsoever,
or any rents on any lands or property belonging to any one of said tribes or
nations in said Territory, or for anyone to pay to any individual any such
royalty or rents or any consideration therefor whatsoever ; and all royalties
and rents hereafter payable to the tribe shall be paid, under such rules and regu
lations as may be prescribed by the Secretary of the Interior, into the Treasury
of the United States to the credit of the tribe to which they belong : Provided,
That where any citizen shall be in possession of only such amount of agricul
tural or grazing lands as would be his just and reasonable share of the lands
of his nation or tribe and that to which his wife and minor children are entitled,
he may continue to use the same or receive the rents thereon until allotment
has been made to him : Provided further, That nothing herein contained shall
impair the rights of any member of a tribe to dispose of any timber contained
on his, her, or their allotment
SEC. 17. That it shall be unlawful for any citizen of any one of said tribes to
inclose or in any manner, by himself or through another, directly or indirectly,
to hold possession of any greater amount of lands or other property belonging to
any such nation or tribe than that which would be his approximate share of the
lands belonging to such nation or tribe and that of his wife and his minor chil
dren as per allotment herein provided ; and any person found in such possession
of lands or other property in excess of his share and that of his family, as afore
said, or having the same in any manner inclosed, at the expiration of nine
months after the passage of this act, shall be deemed guilty of a misdemeanor.
SEC. 18. That any person convicted of violating any of the provisions of sec
tions sixteen and seventeen of this act shall be deemed guilty of a misdemeanor
and punished by a fine of not less than one hundred dollars, and shall stand
committed until such fine and costs are paid (such comimtment not to exceed one
day for every two dollars of said fine and costs), and shall forfeit possession of
any property in question, and each day on which such offense is committed or
20 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
continues to exist shall be deemed a separate offense. And the United States
district attorneys in said Territory are required to see that the provisions of
said sections are strictly enforced, and they shall at once proceed to dispossess
all persons of such excessive holding of lands and to prosecute them for so
unlawfully holding the same.
SEC. 19. That no payment of any moneys on any account whatever shall here
after be made by the United States to a*ny of the tribal governments or to any
officer thereof for disbursement, but payments of all sums to members of said
tribes shall be made under direction of the Secretary of the Interior by an officer
appointed by him; and per capita payments shall be made direct to" each indi
vidual in lawful money of the United States, and the same shall not be liable
to the payment of any previously contracted obligation.
SEC. 20. That the commission hereinbefore named shall have authority to
employ, with approval of the Secretary of the Interior, all assistance necessary
for the prompt and efficient performance of all duties herein imposed, including
competent surveyors to make allotments, and to do any other needed work, and
the Secretary of the Interior may detail competent clerks to aid them in the
performance of their duties.
SEC. 21. That in making rolls of citizenship of the several tribes, as required
by law, the Commission to the Five Civilized Tribes is authorized and directed
to take the roll of Cherokee citizens of eighteen hundred and eighty (not includ
ing freedmen) as the only roll intended to be confirmed by this and proceeding
acts of Congress, and to enroll all persons now living whose names are found on
said roll, and all descendants born since the date of said roll to persons whose
names are found thereon ; and all persons who have been enrolled by the tribal
authorities who have heretofore made permanent settlement in the Cherokee
Nation whose parents, by reason of their Cherokee blood, have been lawfully
admitted to citizenship by the tribal authorities, and who were minors when
their parents were so admitted ; and they shall investigate the right of all other
persons whose names are found on any other rolls and omit all such as may have
been placed thereon by fraud or without authority of law, enrolling only such as
may have lawful right thereto, and their descendants born since such rolls were
made, with such intermarried white persons as may be entitled to citizenship
under Cherokee laws.
It shall make a roll of Cherokee freedmen in strict compliance with the decree
of the Court of Claims rendered the third day of February, eighteen hundred
and ninety-six.
Said Commission is authorized and directed to make correct rolls of the citi
zens by blood of all the other tribes, eliminating from the tribal rolls such names
as may have been placed thereon by fraud or without authority of law, enrolling
such only as may have lawful right thereto, and their descendants born since
such rolls were made, with such intermarried white persons as may be entitled
to Choctaw and Chickasaw citizenship under the treaties and the laws of said
tribes.
Said Commission shall have authority to determine the identity of Choctaw
Indians claiming rights in the Choctaw lands under article fourteen of the
treaty between the United States and the Choctaw Nation concluded September
twenty-seventh, eighteen hundred and thirty, and to that end may administer
oaths, examine witnesses, and perform all other acts necessary thereto and
make report to the Secretary of the Interior.
The roll of Creek freedmen made by J. W. Dunn, under authority of the
United States, prior to March fourteenth, eighteen hundred and sixty-seven, is
hereby confirmed, and said Commission is directed to enroll all persons now
living whose names are found on said rolls, and all descendants born since the
date of said roll to persons whose names are found thereon, with such other
persons of African descent as may have been rightfully admitted by the lawful
authorities of the Creek Nation.
It shall make a correct roll of all Choctaw freedmen entitled to citizenship
under the treaties and laws of the Choctaw Nation, and all their descendants
born to them since the date of the treaty.
It shall make a correct roll of Chickasaw freedmen entitled to any rights or
benefits under the treaty made in eighteen hundred and sixty-six between the
United States and the Choctaw and Chickasaw tribes and their descendants
born to them since the date of said treaty, and forty acres of land, including
their present residences and improvements, shall be allotted to each, to be
selected, held, and used by them until their rights under said treaty shall be
determined in such manner as shall be hereafter provided by Congress.
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 21
The several tribes may, by agreement, determine the right of persons who
for any reason may claim citizenship in two or more tribes, and to allotment
of lands and distribution of moneys belonging to each tribe; but if no such
agreement be made, then such claimant shall be entitled to such rights in one
tribe only, and may elect in which tribe he will take such right ; but if he fail
or refuse to make such selection in due time, he shall be enrolled in the tribe
with whom he has resided, and there be given such allotment and distributions,
and not elsewhere.
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 as to militate against
any rights or privileges which the Mississippi Choctaws may have under the
laws of or the treaties with the United States.
Said Commission shall make such rolls descriptive of the persons thereon, so
that they may be thereby identified, and it is authorized to take a census of
each of said tribes, or to adopt any other means by them deemed necessary to
enable them to make such rolls. They shall have access to all rolls and records
of the several tribes, and the United States court in Indian Territory shall
have jurisdiction to compel the officers of the tribal governments and custo
dians of such rolls and records to deliver same to said Commission, and on
their refusal or failure to do so to punish them as for contempt; as also to
require all citizens of said tribes, and persons who should be so enrolled, to
appear before said Commission for enrollment, at such times and places as may
be fixed by said Commission, and to enforce obedience of all others concerned,
so far as the same may be necessary, to enable said Commission to make rolls
as herein required, and to punish anyone who may in any manner or by any
means obstruct said work.
The rolls so made, when approved by the Secretary of the Interior, shall be
final, and the persons whose names are found thereon, with their descendants
thereafter born to them, with such persons as may intermarry according to
tribal laws, shall alone constitute the several tribes which they represent.
The members of said Commission shall, in performing all duties required of
them by law, have authority to administer oaths, examine witnesses, and send
for persons and papers ; and any person who shall willfully and knowingly
make any false affidavit or oath to any material fact or matter before any
member of said Commission, or before any other officer authorized to admin
ister oaths, to any affidavit or other paper to be filed or oath taken before said
Commission, shall be deemed guilty of perjury, and on conviction thereof shall
be punished as for such offense.
SEC. 22. That where members of one tribe, under intercourse laws, usages, or
customs, have made homes within the limits and on the lands of another tribe
they may retain and take allotment, embracing same under such agreement as
may be made between such tribes respecting such settlers ; but if no such
agreement be made, the improvements so made shall be appraised, and the
value thereof, including all damages incurred by such settler incident to
enforced removal, shall be paid to him immediately upon removal, out of any
funds belonging to the tribe, or such settler, if he so desire, may make private
sale of his improvements to any citizen of the tribe owning the lands : Provided,
That he shall not be paid for improvements made on lands in excess of that to
which he, his wife, and minor children are entitled to under this act.
SEC. 23. That all leases of agricultural or grazing land belonging to any tribe
made after the first day of January, eighteen hundred and ninety-eight, by the
tribe or any member thereof shall be absolutely void, and all such grazing
leases made prior to said date shall terminate on the first day of April, eighteen
hundred and ninety-nine, and all such agricultural leases shall terminate on
January first, nineteen hundred; but this shall not prevent individuals from
leasing their allotments when made to them as provided in this act, nor from
occupying or renting their proportionate shares of the tribal lands until the
allotments herein provided for are made.
SEC. 24. That all moneys paid into the United States treasury at Saint Louis,
Missouri, under provisions of this act shall be placed to the credit of the tribe
to which they belong; and the assistant United States treasurer shall give
triplicate receipts therefor to the depositor.
SEC. 25. That before any allotment shall be made of lands in the Cherokee
Nation, there shall be segregated therefrom by the Commission heretofore men
tioned, in separate allotments or otherwise, the one hundred and fifty-seven
22 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
thousand six hundred acres purchased by the Delaware tribe of Indians
from the Cherokee Nation under agreement of April eighth, eighteen hundred
and sixty-seven, subject to the judicial determination of the rights of said
descendants and the Cherokee Nation under said agreement. That the Dela
ware Indians residing in the Cherokee Nation are hereby authorized and em
powered to bring suit in the Court of Claims of the United States, within sixty
days after the passage of this act, against the Cherokee Nation, for the pur
pose of determining the rights of said Delaware Indians in and to the lands and
funds of said nation under their contract and agreement with the Cherokee
Nation dated April eighth, eighteen hundred and sixty-seven ; or the Cherokee
Nation may bring a like suit against said Delaware Indians ; and jurisdiction is
conferred on said court to adjudicate and fully determine the same, with right of
appeal to either party to the Supreme Court of the United States.
SEC. 26. That on and after the passage of this act the laws of the various
tribes or nations of Indians shall not be enforced at law or in equity by the
courts of the United States in the Indian Territory.
SEC. 27. That the Secretary of the Interior is authorized to locate one Indian
inspector in Indian Territory, who may, under his authority and direction, per
form any duties required of the Secretary of the Interior by law relating to
affairs therein.
SEC. 28. That on the first day of July, eighteen hundred and ninety-eight, all
tribal courts in Indian Territory shall be abolished, and no officer of said courts
shall thereafter have any authority whatever to do or perform any act thereto
fore authorized by any law in connection with said courts, or to receive any pay
for same; and all civil and criminal causes then pending in any such court
shall be transferred to the United States court in said Territory by filing with
the clerk of the court the original .papers in the suit : Provided, That this sec
tion shall not be in force as to the Chickasaw, Choctaw, and Creek tribes or
nations until the first day of October, eighteen hundred and ninety-eight.
SEC. 29. That the agreement made by the Commission to the Five Civilized
Tribes with commissions representing the Choctaw and Chickasaw tribes of
Indians on the twenty -third day of April, eighteen hundred and ninety-seven,
as herein amended, is hereby ratified and confirmed, and the same shall be of
full force and effect if ratified before the first day of December, eighteen hun
dred and ninety-eight, by a majority of the whole number of votes cast by the
members of said tribes at an election held for that purpose; and the executives
of said tribes are hereby authorized and directed to make public proclamation
that said agreement shall be voted on at the next general election, or at any
special election to be called by such executives for the purpose of voting on
said agreement ; and at the election held for such purpose all male members
of each of said tribes qualified to vote under his tribal laws shall have the right
to vote at the election precinct most convenient to his residence, whether the
same be within the bounds of his tribe or not: Provided, That no person
whose right to citizenship in either of said tribes or nations is now contested
in original or appellate proceedings before any United States court shall be
permitted to vote at said election : Provided further, That the votes cast in
both said tribes or nations shall be forthwith returned duly certified by the pre
cinct officers to the national secretaries of said tribes or nations, and shall be
presented by said national secretaries to a board of commissioners consisting
of the principal chief and national secretary of the Choctaw Nation, the gov
ernor and national secretary of the Chickasaw Nation, and a member of the Com
mission to the Five Civilized Tribes, to be designated by the chairman of said
Commission ; and said board shall meet without delay at Atoka, in the Indian
Territory, and canvass and count said votes and make proclamation of the re
sult; and if said agreement as amended be so ratified, the provisions of this
act shall then only apply to said tribes where the same do not conflict with the
provisions of said agreement ; but the provisions of said agreement, if so
ratified, shall not in any manner affect the provisions of section fourteen of
this act, which said amended agreement is as follows :
This agreement, by and between the Government of the United States, of the
first part, entered into in its behalf by the Commission to the Five Civilized
Tribes, Henry L. Dawes, Frank C. Armstrong, Archibald S. McKennon, Thomas
B. Cabaniss, and Alexander B. Montgomery, duly appointed and authorized
thereunto, and the governments of the Choctaw and Chickasaw tribes or nations
of Indians in the Indian Territory, respectively, of the second part, entered into
in behalf of such Choctaw and Chickasaw governments, duly appointed and
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 23
authorized thereunto, viz, Green McCurtain, J. S. Standley, N. B. Ainsworth, Ben
Hampton, Wesley Anderson, Amos Henry, D. C. Garland, and A. S. Williams,
in behalf of the Choctaw Tribe or Nation, and It. M. Harris, I. O. Lewis, Holmes
Colbert, P. S. Mosely, M. V. Cheadle. R. L. Murray, William Perry, A. H. Col
bert, and R. L. Boyd, in behalf of the Chickasaw Tribe or Nation.
ALLOTMENT OF LANDS.
Witnesseth, That in consideration of the mutual undertakings, herein con
tained, it is agreed as follows :
That all the lands within the Indian Territory belonging to the Choctaw and
Chickasaw Indians shall be allotted to the members of said tribes so as to give
to each member of these tribes so far as possible a fair and equal share thereof,
considering the character and fertility of the soil and the location and value of
the lands.
That all the lands set apart for town sites, and the strip of land lying between
the city of Fort Smith, Arkansas, and the Arkansas and Poteau rivers, extend
ing up said river to the mouth of Mill Creek ; and six hundred and forty acres
each, to include the buildings now occupied by the Jones Academy, Tushkahoma
Female Seminary, Wheelock Orphan Seminary, and Armstrong Orphan Acad
emy, and ten acres for the capitol building of the Choctaw Nation ; one hundred
and sixty acres each, immediately contiguous to and including the buildings
known as Bloomfield Academy, Lebanon Orphan Home, Harley Institute, Rock
Academy, and Collins Institute, and five acres for the capitol building in the
Chickasaw Nation, and the use of one acre of land for each church house now
erected outside of the towns, and eighty acres of land each for J. S. Murrow,
H. R. Schermerhorn, and the widow of R. S. Bell, who have been laboring as
missionaries in the Choctaw and Chickasaw nations since the year eighteen
hundred and sixty-six, with the same conditions and limitations as apply to
lands allotted to the members of the Choctaw and ChickasawT nations, and to
be located on lands not occupied by a Choctaw or a Chickasaw, and a reason
able amount of land, to be determined by the town-site commission, to include
all court-houses and jails and other public buildings not hereinbefore provided
for, shall be exempted from division. And all coal and asphalt in or under the
lands allotted and reserved from allotment shall be. reserved for the sole use of
the members of the Chpctaw and Chickasaw tribes, exclusive of freedmen :
Provided, That where any coal or asphalt is hereafter opened on land allotted,
sold, or reserved, the value of the use of the necessary surface for prospecting
or mining, and the damage done to the other lands and improvements, shall be
ascertained under the direction of the Secretary of the Interior and paid to the
allottee or owner of the land by the lessee or party operating the same, before
operations begin. That in order to such equal division, the lands of the Choc-
taws and Chickasaws shall be graded and appraised so as to give to each mem
ber, so far as possible, -an equal value of the land : Provided further, That the
Commission to the Five Civilized Tribes shall make a correct roll of Chickasaw
freedmen entitled to any rights or benefits under the treaty made in eighteen
hundred and sixty-six between the United States and the Choctaw and Chick
asaw tribes and their descendants born to them since the date of said treaty,
and forty acres of land, including their present residences and improvements,
shall be allotted to each, to be selected, held, and used by them until their rights
under said treaty shall be determined, in such manner as shall hereafter be pro
vided by act of Congress.
That the lands allotted to the Choctaw and Chickasaw freedmen are to be
deducted from the portion to be allotted under this agreement to the members of
the Choctaw and Chickasaw tribes so as to reduce the allotment to the Choctaws
and Chickasaws by the value of the same.
That the said Choctaw and Chickasaw freedmen who may be entitled to allot
ments of forty acres each shall be entitled each to land equal in value to forty
acres of the average land of the two nations.
That in the appraisement of the lands to be allotted the Choctaw and Chicka
saw tribes shall each have a representative, to be appointed by their respective
executives, to cooperate with the Commission to the Five Civilized Tribes, or
anyone making appraisements under the direction of the Secretary of the Inte
rior in grading and appraising the lands preparatory to allotment. And the land
shall be valued in the appraisement as if in its original condition, excluding the
improvements thereon.
That the appraisement and allotment shall be made under the direction of the
24 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
Secretary of the Interior, and shall begin as soon as the progress of the surveys,
now being made by the United States Government, will admit.
That each member of the Choc-taw and Chickasaw tribes, including Choctaw
and Chickasaw freedmen, shall, where it is possible, have the right to take his
allotment on land the improvements on which belong to him, and such improve
ments shall not be estimated in the value of his allotment. In the case of minor
children allotments shall be selected for them by their father, mother, guardian,
or the administrator having charge of their estate, preference being given in the
order named, and shall not be sold during his (or her) minority. Allotments
shall be selected for prisoners, convicts, and incompetents by some suitable per
son akin to them, and due care taken that all persons entitled thereto have
allotments made to them.
All the lands allotted shall be nontaxable while the title remains in the original
allottee, but not to exceed twenty-one years from date of patent, and each allot
tee shall select from his allotment a homestead on one hundred and sixty acres,
for which he shall have a separate patent, and which shall be inalienable for
twenty-one years from date of patent. This provision shall also apply to the
Choctaw and Chickasaw freedman to the extent of his allotment. Selections for
homesteads for minors to be made as provided herein in case of allotment, and
the remainder of the lands allotted to said members shall be alienable for a price
to be actually paid, and to include no former indebtedness or obligation — one-
fourth of said remainder in one year, one-fourth in three years, and the balance
of said alienable lands in five years from the date of the patent.
That all contracts looking to the sale or incumbrance in any way of the land
of an allottee, except the sale hereinbefore provided, shall be null and void. No
allottee shall lease his allotment, or any portion thereof, for a longer period than
five years, and then without the privilege of renewal. Every lease which is not
evidenced by writing, setting out specifically the terms thereof, or which is not
recorded in the clerk's office of the United States court for the district in which
the land is located, within three months after the date of its execution, shall be
void, and the purchaser or lessee shall acquire no rights whatever by an entry
or holding thereunder, and no such lease or any sale shall be valid as against the
allottee unless providing to him a reasonable compensation for the lands sold or
leased.
That all controversies arising between the members of said tribes as to their
right to have certain lands allotted to them shall be settled by the commission
making the allotments.
That the United States shall put each allottee in possession of his allotment
and remove all persons therefrom objectionable to the allottee.
That the United States shall survey and definitely mark and locate the ninety-
eighth (98th) meridian of west longitude between Red and Canadian rivers
before allotment of the lands herein provided for shall begin.
MEMBERS' TITLES TO LANDS.
That, as soon as practicable after the completion of said allotments, the princi
pal chief of the Choctaw Nation and the governor of the Chickasaw Nation shall
jointly execute, under their hands and the seals of the respective nations, and
deliver to each of the said allottees patents conveying to him all the right, title,
and interest of the Choctaws and Chickasaws in and to the land which shall have
been allotted to him in conformity with the requirements of this agreement, ex
cepting all coal and asphalt in or under said land. Said patents shall be framed
in accordance with the provisions of this agreement, and shall embrace the land
allotted to such patentee and no other land, and the acceptance of his patents by
s-uch allottee shall be operative as an assent on his part to the allotment and con
veyance of all the lands of the ChoctawTs and Chickasaws in accordance with the
provisions of this ngreement, and as a relinquishment of all his right, title, and
interest in and to any and all parts thereof, except the land embraced in said
patents, except also his interest in the proceeds of all lands, coal, and asphalt
herein excepted from allotment.
That the United States shall provide by law for proper record of land titles in
the territory occupied by the Choctaw and Chickasaw tribes.
RAILROADS.
The rights of way for railroads through the Choctaw and Chickasaw nations
to be surveyed and set apart and platted to conform to the respective acts of
Congress granting the same in cases where said rights of way are defined by
LAWS AFFECTING ^HE FIVE CIVILIZED TRIBES. 25
such acts of Congress, but in cases where the acts of Congress do not define
the same, then Congress is memorialized to definitely fix the width of said
rights of way for station grounds and between stations, so that railroads now
constructed through said nations shall have, as near as possible, uniform rights
of way ; and Congress is also requested to fix uniform rates of fare and freight
for all railroads through the Choctaw and Chickasaw nations; branch railroads
now constructed and not built according to acts of Congress to pay the same
rates for rights of way and station grounds as main lines.
TOWN SITES.
It is further agreed that there shall be appointed a commission for each of the
two nations. Each commission shall consist of one member, to be appointed
by the executive of the tribe for which said commission is to act, who shall not
be interested in town property other than his home, and one to be appointed by
the President of the United States. Each of said commissions shall lay out
town sites, to be restricted as far as possible to their present limits, where towns
are now located in the nation for which said commission is appointed. Said
commission shall have prepared correct and proper plats of each town, and file
one in the clerk's office of the United States district court for the district in
which the town is located, and one with the principal chief or governor of the
nation in which the town is located, and one with the Secretary of the Interior,
be approved by him before the same shall take effect. When said towns are so
laid out, each lot on which permanent, substantial, and valuable improvements,
other than fences, tillage, and temporary houses, have been made, shall be
valued by the commission provided for the nation in which the town is located
at the price a fee-simple title to the same would bring in the market at the
time the valuation is made, but not to include in such value the improvements
thereon. The owner of the improvements on each lot shall have the right to
buy one residence and one business lot at fifty per centum of the appraised
value of such improved property, and the remainder of such improved property
at sixty-two and one-half per centum of the said market value within sixty days
from date of notice served on him that such lot is for sale, and if he purchases
the same he shall, within ten days from his purchase, pay into the Treasury of
the United States one-fourth of the purchase price, and the balance in three
equal annual installments, and when the entire sum is paid shall be entitled to
a patent for the same. In case the two members of the commission fail to
agree as to the market value of any lot, or the limit or extent of said town,
either of said commissioners may report any such disagreement to the judge of
the district in which such town is located, who shall appoint a third member to
act with said commission, who is not interested in town lots, who shall act with
them to determine said value.
If such owner of the improvements on any lot fails within sixty days to pur
chase and make the first payment on same, such lot, with the improvements
thereon, shall be sold at public auction to the highest bidder, under the direc
tion of the aforesaid commission, and the purchaser at such sale shall pay to the
owner of the improvements the price for which said lot shall be sold, less sixty-
two and one-half per cent of said appraised value of the lot, and shall pay the
sixty-two and one-half per cent of said appraised value into United States
Treasury, under regulations to be established by the Secretary of the Interior,
in four installments, as hereinbefore provided. The commission shall have the
right to reject any bid on such lot which they consider below its value.
All lots not so appraised shall be sold from time to time at public auction
(after proper advertisement) by the commission for the nation in which the
town is located, as may seem for the best interest of the nations and the proper
development of each town, the purchase price to be paid in four installments, as
hereinbefore provided for improved lots. The commission shall have the- right
to reject any bid for such lots which they consider behow its value.
All the payments herein provided for shall be made under the direction of the
Secretary of the Interior into the United States Treasury, a failure of sixty
days to make any one payment to be a forfeiture of all payments made and all
rights under the contract : Provided, That the purchaser of any lot shall have
the option of paying the entire price of the lot before the same is due.
No tax shall be assessed by any town government against any town lot unsold
by the commission, and no tax levied against a lot sold, as herein provided, shall
constitute a lien on same till the purchase price thereof has been fully paid to
the nation.
The money paid into the United States Treasury for the sale of all town lots
26 LAWS AFFECTING THE FIVE CIVILIZED TKIBES.
be for the benefit of tlie members of the Choctaw and Chickasaw tribes
( f reedmen excepted), and at the end of one year from the ratification of this
agreement, and at the end of each year thereafter, the funds so accumulated
shall be divided and paid to the Choctaws and Chickasaws (f reedmen excepted),
each member of the two tribes to receive an equal portion thereof.
That no law or ordinance shall be passed by any town which interferes with
the enforcement of or is in conflict with the laws of the United States in force
in said Territory, and all persons in such towns shall be subject to said laws,
and the United States agrees to maintain strict laws in the territory of the
Choctaw and Chicasaw tribes against the introduction, sale, barter, or giving
away of liquors and intoxicants of any kind or quality.
That said commission shall be authorized to locate, within a suitable distance
from each town site, not to exceed five acres to be used as a cemetery, and
when any town has paid into the United States Treasury, to be part of the
fund arising from the sale of town lots, ten dollars per acre therefor, such town
shall be entitled to a patent for the same, as herein provided for titles to
allottees, and shall dispose of same at reasonable prices in suitable lots for
burial purposes, the proceeds derived from such sales to be applied by the town
.government to the proper improvement and care of said cemetery.
That no charge or claim shall be made against the Choctaw or Chickasaw
tribes by the United States for the expenses of surveying and platting the
lands and town sites, or for grading, appraising, and allotting the lands, or for
appraising and disposing of the town lots as herein provided.
That the land adjacent to Fort Smith, and lands for court-houses, jails, and
other public purposes excepted from allotment, shall be disposed of in the same
manner and for the same purposes as provided for town lots herein, but not till
the Choctaw and Chickasaw councils shall direct such disposition to be made
thereof, and said land adjacent thereto shall be placed under the jurisdiction
of the city of Fort Smith, Arkansas, for police purposes.
There shall be set apart and exempted from appraisement and sale in the
towns lots upon which churches and parsonages are now built and occupied,
not to exceed fifty feet front and one hundred feet deep for each church or
parsonage : Provided, That such lots shall only be used for churches and par
sonages, and when they cease to be used shall revert to the members of the
tribes to be disposed of as other town lots: Provided further, That these lots
may be sold by the churches for which they are set apart if the purchase
money therefor is invested in other lot or lots in the same town, to be used for
the same purpose and writh the same conditions and limitations.
It is agreed that all the coal and asphalt within the limits of the Choctaw and
Chickasaw nations shall remain and be the common property of the members of
the Choctaw and Chickasaw tribes (f reedmen excepted), so that each and every
member shall have an equal and undivided interest in the whole ; and no patent
provided for in this agreement shall convey any title thereto. The revenues
from coal and asphalt, or so much as shall be necessary, shall be used for the
education of the children of Indian blood of the members of said tribes. Such
coal and asphalt mines as are now in operation, and all others which may
hereafter be leased and operated, shall be under the supervision and control of
two trustees, who shall be appointed by the President of the United States, one
on the recommendation of the principal chief of the Choctaw Nation, who shall
be a Choctaw by blood, whose term shall be for four years, and one on the
recommendation of the governor of the Chicasaw Nation, who shall be a
Chickasaw by blood, whose term shall be for two years ; after which the
term of appointees shall be four years. Said trustees, or either of them, may
at any time be removed by the President of the United States for good cause
shown. They shall each give bond for the faithful performance of their
duties, under such rules as may be prescribed by the Secretary of the Interior.
Their salaries shall be fixed and paid by their respective nations, each of whom
shall make full report of all his acts to the Secretary of the Interioi quarterly.
All such acts shall be subject to the approval of said Secretary.
All coal and asphalt mines in the two nations, whether now developed or to
be hereafter developed, shall be operated, and the royalties therefrom paid into
the Treasury of the United States, and shall be drawn therefrom under such
rules and regulations as shall be prescribed by the Secretary of the Interior.
All contracts made by the national agents of the Choctaw and Chickasaw
nations for operating coal and asphalt with any person or corporation which
were, on April twenty-third, eighteen hundred and ninety-seven, being operated
in good faith, are hereby ratified and confirmed, and the lessee shall have the
right to renew the same when they expire, subject to all the provision of this act.
LAWS AFFECTING THE FIVE CIVILIZED TKIBES. 27
All agreements heretofore made by any person or corporation with any mem
ber or members of the Choctaw or Chickasaw nations, the object of which was
to obtain such member or members permission to operate coal, or asphalt, are
hereby declared void : Provided, That nothing herein contained shall impair the
rights of any holder or owner of a leasehold interest in any oil, coal rights,
asphalt, or mineral which have been assented to by act of Congress, but all
such interests shall continue unimpaired hereby, and shall be assured by new
leases from such trustees of coal or asphalt claims described therein by applica
tion to the trustees within six months after the ratification of this agreement,
subject, however, to payment of advance royalties herein provided for.
All leases under this agreement shall include the coal or asphaltum or other
mineral, as the case may be, in or under nine hundred and sixty acres, which
shall be in a square as nearly as possible and shall be for thirty years. The
royalty on coal shall be fifteen cents per ton of two thousand pounds on all coal
mined, payable on the 25th day of the month next succeeding that in which it
is mined. Royalty on asphalt shall be sixty cents per ton, payable same as
coal : Provided, That the Secretary of the Interior may reduce or advance roy
alties on coal and asphalt when he deems it for the best interests of the Choe-
taws and Chickasaws to do so. No royalties shall be paid except into the
United States Treasury, as herein provided.
All lessees shall pay on each coal or asphalt claim at the rate of one hundred
dollars per annum, in advance, for the first and second years ; two hundred dol
lars per annum, in advance, for the third and fourth years ; and five hundred
dollars for each succeeding year thereafter. All such payments shall be treated
as advanced royalty on the mine or claim on which they are made, and shall
be a credit as royalty when each said mine is developed and operated and its
production is in excess of such guaranteed annual advance payments ; and all
persons having coal leases must pay said annual advanced payments on each
claim whether developed or undeveloped : Provided, hoirever. That should any
lessee neglect or refuse to pay such advanced annual royalty for the period of
sixty days after the same becomes due and payable on any lease, the lease on
which default is made shall become null and void, and the royalties paid in ad
vance thereon shall then become and be the money and property of the Choc-
taw and Chickasaw nations.
In surface, the use of which is reserved to present coal operators, shall be in
cluded such lots in towns as are occupied by lessees' houses — either occupied by
said lesses' employees or as offices or warehouses: Provided, however, That in
those town sites designated and laid out under the provision of this agreement
where coal leases are now being operated and coal is being mined, there shall
be reserved from appraisement and sale all lots occupied by houses of miners
actually engaged in mining, and only while they are so engaged, and in addition
thereto a sufficient amount of land, to be determined by the town-site board of
appraisers, to furnish homes for the men actually engaged in working for the
lessees operating said mines and a sufficient amount for all buildings and
machinery for mining purposes: And provided further, That when the lessees
shall cease to operate said mines, then and in that event the lots of land so re
served shall be disposed of by the coal trustees for the benefit of the Choctaw
and Chickasaw tribes.
That whenever the members of the Choctaw and Chickasaw tribes shall be
required to pay taxes for the support of schools, then the fund arising from such
royalties shall be disposed of for the equal benefit of their members (freedmen
excepted) in such manner as the tribes may direct.
It is further agreed that the United States courts now existing, or that may
hereafter be created, in the Indian Territory shall have exclusive jurisdiction of
all controversies growing out of the titles, ownership, occupation, possession, or
use of real estate, coal, and asphalt in the territory occupied by the Choctaw and
Chickasaw tribes ; and of all persons charged with homicide, embezzlement,
bribery and embracery, breaches or disturbances of the peace, and carrying
weapons, hereafter committed in the territory of said tribe, without reference
to race or citizenship of the person or persons charged with such crime ; and
any citizen or officer of the Choctaw or Chickasaw nations charged with such
crime shall be tried and, if convicted, punished as though he were a citizen or
officer of the United States.
And sections sixteen hundred and thirty-six to sixteen hundred and forty-
four, inclusive, entitled " Embezzlement," and sections seventeen hundred and
eleven to seventeen hundred and eighteen, inclusive, entitled " Bribery and em
bracery." of Mansfield's Digest of the Laws of Arkansas, are hereby extended
over and put in force in the Choctaw and Chickasaw nations; aiid the word
28 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
" officer," where the same appears in said laws, shall include all officers of the
Choctaw and Chickasaw governments ; and the fifteenth section of the act of
Congress entitled "An act to establish United States courts in the Indian Terri
tory, and for other purposes," approved March first, eighteen hundred and eighty-
nine, limiting jurors to citizens of the United States, shall be held not to apply to
United States courts in the Indian Territory held within the limits of the Choctaw
and Chickasaw nations ; and all members of the Choctaw and Chickasaw tribes,
otherwise qualified, shall be competent jurors in said courts : Provided, That
whenever a member of the Choctaw and Chickasaw nations is indicted for homi
cide, he may, within thirty days after such indictment and his arrest thereon,
and before the same is reached for trial, file with the clerk of the court in which
he is indicted his affidavit that he can not get a fair trial in said court ; and it
thereupon shall be the duty of the judge of said court to order a change of venue
in such case to the United States district court for the western district of Arkan
sas, at Fort Smith, Arkansas, or to the United States district court for the east
ern district of Texas, at Paris, Texas, always selecting the court that in his
judgment is nearest or most convenient to the place where the crime charged in
the indictment is supposed to have been committed, which courts shall have
jurisdiction to try the case ; and in all said civil suits said courts shall have full
equity powers ; and whenever it shall appear to said court, at any stage in the
hearing of any case, that the tribe is in any way interested in the subject-matter
in controversy, it shall have power to summon in said tribe and make the same a
party to the suit and proceed therein in all respects as if such tribe were an
original party thereto ; but in no case shall suit be instituted against the tribal
government without its consent.
It is further agreed that no act, ordinance, or resolution of the council of
either the Choctaw or Chickasaw tribes, in any manner affecting the land of
the tribe, or of the individuals, after allotment, or the moneys or other property
of the tribe or citizens thereof (except appropriations for the regular and
necessary expenses of the government of the respective tribes), or the rights
of any persons to employ any kind of labor, or the rights of any persons who
have taken or may take the oath of allegiance to the United States, shall be of
any validity until approved by the President of the United States. When such
acts, ordinances, or resolutions passed by the council of either of said tribes
shall be approved by the governor thereof, then it shall be the duty of the
national secretary of said tribe to forward them to the President of the United
States, duly certified and sealed, who shall, within thirty days after their re
ception, approve or disapprove the same. Said acts, ordinances, or resolutions,
when so approved, shall be published in at least two newspapers having a bona
fide circulation in the tribe to be affected thereby, and when disapproved shall
be returned to the tribe enacting the same.
It is further agreed, in view of the modification of legislative authority and
judicial jurisdiction herein provided, and the necessity of the continuance of
the tribal governments so modified, in order to carry out the requirements of
this agreement, that the same shall continue for the period of eight years from
the fourth day of March, eighteen hundred and ninety-eight. This stipulation
is made in the belief that the tribal governments so modified will prove so
satisfactory that there will be no need or desire for further change till the
lands now occupied by the Five Civilized Tribes shall, in the opinion of Con
gress, be prepared for admission as a State to the Union. But this provision
shall not be construed to be in any respect an abdication by Congress of power
at any time to make needful rules and regulations respecting said tribes.
That all per capita payments hereafter made to the members of the Choctaw
or Chickasaw nations shall be paid directly to each individual member by a
bonded officer of the United States, under the direction of the Secretary of the
Interior, which officer shall be required to give strict account of such disburse
ments to said Secretary.
That the following sum be, and is hereby, appropriated, out of any money in
the Treasury not otherwise appropriated, for fulfilling treaty stipulations with
the Chickasaw Nation of Indians, namely :
For arrears of interest, at five per centum per annum, from December thirty-
first, eighteen hundred and forty, to June thirtieth, eighteen hundred and
eighty-nine, on one hundred and eighty-four thousand one hundred and forty-
three dollars and nine cents of the trust fund of the Chickasaw Nation errone
ously dropped from the books of the United States prior to- December thirty-
first, eighteen hundred and forty, and restored December twenty-seventh,
.eighteen hundred and eighty-seven, by the award of the Secretary of the In
terior, under the fourth article of the treaty of June twenty-second, eighteen
LAWS AFFECTING THE FIVE CIVILIZED TKIBES. 29
hundred and fifty-two, and for arrears of interest, at five per centum per annum,
from March eleventh, eighteen hundred and fifty, to March third, eighteen
hundred and ninety, on fifty-six thousand and twenty-one dollars and forty-nine
cents of the trust fund of the Chickasaw Nation erroneously dropped from the
books of the United States March eleventh, eighteen hundred and fifty, and
restored December twenty-seventh, eighteen hundred and eighty-seven, by the
award of the Secretary of the Interior, under the fourth article of the treaty of
June twenty-second, eighteen hundred and fifty-two, five hundred and fifty-
eight thousand five hundred and twenty dollars and fifty-four cents, to be
placed to the credit of the Chickasaw Nation with the fund to which it prop
erly belongs : Provided, That if there be any attorneys' fees to be paid out of
same, on contract heretofore made and duly approved by the Secretary of the
Interior, the same is authorized to be paid by him.
It is further agreed that the final decision of the courts of the United States
in the case of the Choctaw Nation and the Chickasaw Nation against the
United States and the Wichita and affiliated bands of Indians, now pending,
when made, shall be conclusive as the basis of settlement as between the
United States and said Choctaw and Chickasaw nations for the remaining
lands in what is known as the " Leased District," namely, the land lying
between the .ninety-eighth and one hundredth degrees of west longitude and
between the Red and Canadian rivers, leased to the United States by the treaty
of eighteen hundred and fifty-five, except that portion called the Cheyenne and
Arapahoe country, heretofore acquired by the United States, and all final judg
ments rendered against said nations in any of the courts of the United States in
favor of the United States or any citizen thereof shall first be paid out of any
fcum hereafter found due said Indians for any interest they may have in the
so-called " Leased District."
It is further agreed that all of the funds invested, in lieu of investment,
treaty funds, or otherwise, now held by the United States in trust for the Choc
taw and Chickasaw tribes, shall be capitalized within one year after the tribal
governments shall cease, so far as the same may legally be done, and be appro
priated and paid, by some officer of the United States appointed for the pur
pose, to the Choctaws and Chickasaws (freedmen excepted) per capita, to aid
and assist them in improving their homes and lands.
It is further agreed that the Choctaws and Chickasaws, when their tribal
governments cease, shall 'become possessed of all the rights and privileges of
citizens of the United States.
ORPHAN LANDS.
It is further agreed that the Choctaw orphan lands in the State of Missis
sippi, yet unsold, shall be taken by the United States at one dollar and twenty-
five-cents ($1.25) per acre, and the proceeds placed to the credit of the Choctaw
orphan fund in the Treasury of the United States, the number of acres to be
determined by the General Land Office.
In witness whereof the said commissioners do hereunto affix their names, at
Atoka, Indian Territory, this the twenty-third day of April, eighteen hundred
and ninety-seven.
GREEN McCuRTAiN, R. M. HARRIS,
Principal Chief. Governor.
J. S. STANDLEY, ISAAC O. LEWIS,
N. B. AINSWORTH, HOLMES COLBERT,
BEN HAMPTON, ROBERT L. MURRAY,
WESLEY ANDERSON, WILLIAM PERRY,
AMOS HENRY, R. L. BOYD,
D. C. GARLAND, Chickasaw Commission.
Choctaw Commission.
FRANK C. ARMSTRONG,
Acting Chairman.
ARCHIBALD S. MCKENNON,
THOMAS B. CARANISS,
ALEXANDER B. MONTGOMERY,
Commission to the Five Civilized Tribes.
H. M. JACOWAY, Jr.,
Secretary Five Tribes Commission.
30 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
[Act of July 1, 1808 (30 Stat. L., 591).]
For salaries of four commissioners appointed under acts of Congress ap
proved March third, eighteen hundred and ninety-three and March second,
eighteen hundred and ninety-five, to negotiate with the Five Civilized Tribes
hi the Indian Territory, twenty thousand dollars: Provided, That the number
of said commissioners is hereby fixed at four. For expenses of commissioners
and necessary expenses of employees, fifteen hundred dollars, to be immediately
available: And provided further, That three dollars per diem for expenses of a
clerk detailed as special disbursing agent by Interior Department, while on
duty with the Commission, shall be paid therefrom ; for clerical help, including
secretary of the Commission and interpreters, six thousand six hundred dol
lars, and authority is hereby given for the payment of such interpreters as may
have been employed and paid by said Commission during the fiscal year eighteen
hundred and ninety-eight; for contingent expenses of the Commission, one
thousand eight hundred dollars ; in all, forty-three thousand four hundred
dollars.
That said Commission shall continue to exercise all authority heretofore con
ferred on it by law.
Appeals shall be allowed from the United States courts in the Indian Terri
tory direct to the Supreme Court of the United States to either party, in all
citizenship cases, and in all cases between either of the Five Civilized Tribes
and the United States involving the constitutionality or validity of any legis
lation affecting citizenship, or the allotment of lands in the Indian Territory,
under the rules and regulations governing appeals to said court in other cases :
Provided, That appeals in cases decided prior to this act must be perfected in
one hundred and twenty days from its passage ; and in cases decided subse
quent thereto, within sixty days from final judgment ; but in no such case shall
the work of the Commission to the Five Civilized Tribes be enjoined or suspended
by any proceeding in or order of any court, or of any judge, until after final
judgment in the Supreme Court of the United States. In case of appeals, as
aforesaid, it shall be the duty of the Supreme Court to advance such cases on
the docket and dispose of the same as early as possible.
SEMINOLE AGREEMENT, DECEMBER 10, 1897.
[30 Stat. L., 567.]
AN ACT To ratify the agreement between the Dawes Commission and the Seminole
Nation of Indians.
Whereas an agreement was made by Henry L. Dawes, Tarns Bixby, Frank C.
Armstrong, Archibald S. McKennon, Thomas B. Needles, the Commission of
the United States to the Five Civilized Tribes, and Allison L. Aylesworth,
secretary, John F. Brown, Okchan Harjo, William Cully, K. N. Kinkehee,
Thomas West, Thomas Factor, Seminole Commission, A. J. Brown, secretary,
on the part of the Seminole Nation of Indians, on December sixteenth,
eighteen hundred and ninety-seven, as follows:
AGREEMENT BETWEEN THE UNITED STATES COMMISSIONERS TO NEGOTIATE WITH THE
FIVE CIVILIZED TRIBES AND THE COMMISSIONERS ON THE PART OF THE SEMINOLE
NATION.
This agreement by and between the Government of the United States of the
first part, entered into in its behalf by the Commission to the Five Civilized
Tribes, Henry L. Dawes, Tarns Bixby, Frank C. Armstrong, Archibald S.
McKennon, and Thomas B. Needles, duly appointed and authorized thereunto,
and the government of the Seminole Nation in Indian Territory, of the sec
ond part, entered into on behalf of said government by its commission, duly
appointed and authorized thereunto, viz, John F. Brown, Okchan Harjo, William
Cully, K. N. Kinkehee, Thomas West, and Thomas Factor :
Witnesseth, That in consideration of the mutual undertakings herein con
tained, it is agreed as follows:
All lands belonging to the Seminole tribe of Indians shall be divided into
three classes, designated as first, second, and third class ; the first class to be
appraised at five dollars, the second class at two dollars and fifty cents, and
the third class at one dollar and twenty-five cents per acre, and the same shall
be divided among the members of the tribe so that each shall have an equal
share thereof in value, so far as may be, the location and fertility of the soil
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 31
considered ; giving to each the right to select his allotment so as to include
any improvements thereon owned by him at the time; and each allottee shall
have the sole right of occupancy of the land so allotted to him during the
existence of the present tribal governments, and until the members of said tribe
shall have become citizens of the United States. Such allotments shall be made
under the direction and supervision of the Commission to .the Five Civilized
Tribes in connection with a representative appointed by the tribal government ;
and the chairman of said Commission shall execute and deliver to each allottee
a certificate describing therein the land allotted to him.
All contracts for sale, disposition, or encumbrance of any part of any allotment
made prior to date of patent shall be void.
Any allottee may lease his allotment for any period not exceeding six years,
the contract therefor to be executed in triplicate upon printed blanks provided
by the tribal government, and before the same shall become effective it shall be
approved by the principal chief and a copy filed in the office of the clerk of the
United States court at Wewoka.
No lease of any coal, mineral, coal oil, or natural gas within said nation shall
be valid unless made witii the tribal government, by and with the consent of the
allottee and approved by the Secretary of the Interior.
Should there be discovered on any allotment any coal, mineral, coal oil, or
natural gas, and the same should be operated so as to produce royalty, one half
of such royalty shall be paid to such allottee and the remaining half into the
tribal treasury until extinguishment of tribal government, and the latter shall
be used for the purpose of equalizing the value of allotments ; and if the same
be insufficient therefor, any other funds belonging to. the tribe, upon extinguish
ment of tribal government, may be used for such purpose, so that each allot
ment may be made equal in value as aforesaid.
The town site of Wewoka shall be controlled and disposed of according to the
provisions of an act of the general council of the Seminole Nation, approved
April 23d, 1897, relative thereto ; and on extinguishment of the tribal government
deeds of conveyance shall issue to owners of lots as herein provided for allottees ;
and all lots remaining unsold at that time may be sold in such manner as may
be prescribed by the Secretary of the Interior.
Five hundred thousand dollars (.$500,000) of the funds belonging to the Semi-
noles, now held by the United States, shall be set apart as a permanent school
fund for the education of children of the members of said tribe, and shall be held
by the United States at five per cent interest, or invested so as to produce such
amount of interest, which shall be, after extinguishment of tribal government,
applied by the Secretary of the Interior to the support of Mekasuky and Ema-
haka academies and the district schools of the Seminole people; and there shall
be selected and excepted from allotment three hundred and twenty acres of
land for each of said academies and eighty acres each for eight district schools
in the Seminole country.
There shall also be excepted from allotment one-half acre for the use and occu
pancy of each of twenty-four churches, including those already existing and
such others as may hereafter be established in the Seminole country, by and with
consent of the general council of the nation ; but should any part of same, at
any time, cease to be used for church purposes, such part shall at once revert
to the Seminole people and be added to the lands set apart for the use of said
district schools.
One acre in each township shall be excepted from allotment, and the same may
be purchased by the United States, upon which to establish schools for the edu
cation of children of noncitizens, when deemed expedient.
When the tribal government shall cease to exist the principal chief last elected
by said tribe shall execute, under his hand and the seal of the nation, and deliver
to each allottee a deed conveying to him all the right, title, and interest of the
said nation and the members thereof in and to the lands so allotted to him., and
the Secretary of the Interior shall approve such deed, and the same shall there
upon operate as relinquishment of the right, title, and interest of the United
States in and to the land embraced in said conveyance, and as a guarantee by
the United States of the title of said lands to the allottee; and the acceptance of
such deed by the allottee shall be a relinquishment of his title to and interest in
all other lands belonging to the tribe, except such as may have been excepted
from allotment and held in common for other purposes. Each allottee shall
designate one tract of forty acres, which shall, by the terms of the deed, be made
inalienable and nontaxable as a homestead in perpetuity.
All moneys belonging to the Seminoles remaining after equalizing the value of
32 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
allotments as herein provided and reserving: said sum of five hundred thousand
dollars for school fund shall he paid per capita to the meinhers of said trihe in
three equal installments, the first to he made as soon as convenient after allot
ment and extinguishment of tribal government and the others at one and two
years, respectively. Such payments shall be made by a person appointed by the
Secretary of the Interior, who shall prescribe the amount of and approve the
bond to be given by such person ; and strict account shall be given to the Secre
tary of the Interior for such disbursements.
The loyal Seminole claim shall be submitted to the United States Senate,
which shall make final determination of same, and, if sustained, shall provide
for payment thereof within two years from date hereof.
There shall hereafter be held at the town of Wewoka, the present capital of
the Seminole Nation, regular terms of the United States court, as at other
points in the jwlicial district of which the Seminole Nation is a part.
The United States agrees to maintain strict laws in the Seminole country
against the introduction, sale, barter, or giving away of intoxicants of any
kind or quality.
This agreement shall in no wise affect the provisions of existing treaties be
tween the Seminole Nation and the United States, except in so far as it is in
consistent therewith.
The United States courts now existing, or that may hereafter be created, in
Indian Territory shall have exclusive jurisdiction of all controversies growing
out of the title, ownership, occupation, or use of real estate owned by the Semi-
noles, and to try all persons charged with homicide, embezzlement, bribery, and
embracery hereafter committed in the Seminole country, without reference to
race or citizenship of the persons charged with such crime ; and any citizen or
officer of said nation charged with any such crime, if convicted, shall be pun
ished as if he were a citizen or officer of the United States, and the courts of
said nation shall retain all the jurisdiction which they now have, except as
herein transferred to the courts of the United States.
When this agreement is ratified by the Seminole Nation and the United
States, the same shall serve to repeal all the provisions of the act of Congress
approved June seventh, eighteen hundred and ninety-seven, in any manner
affecting the proceedings of the general council of the Seminole Nation.
It being known that the Seminole Reservation is insufficient for allotments
for the use of the Seminole people, upon which they, as citizens, holding in
severalty, may reasonably and adequately maintain their families, the United
States will make effort to purchase from the Creek Nation, at one dollar and
twenty-five cents per acre, two hundred thousand acres of land, immediately
adjoining the eastern boundary of the Seminole Reservation and lying between
the North Fork and South Fork of the Canadian River, in trust for and to be
conveyed by proper patent by the United States to the Seminole Indians, upon
said sum of one dollar and twenty-five cents per acre being reimbursed to the
United States by said Seminole Indians ; the same to be allotted as herein pro
vided for lands now owned by the Seminoles.
This agreement shall be binding on the United States when ratified by Con
gress and on the Seminole people when ratified by the general council of the
Seminole Nation.
It witness whereof the said commissioners have hereunto affixed their names
at Muskogee, Indian Territory, this sixteenth day of December, A. D. 1897.
HENRY L. DAWES,
TAMS BIXBY,
FRANK C. ARMSTRONG,
ARCHIBALD S. MC!VENNON,
THOMAS B. NEEDLES,
Commission to the Five Civilised Tribes.
ALLISON L. AYLESWORTH,
Secretary.
JOHN F. BROWN,
OKCHAN HARJO,
WILLIAM CULLY,
K. N. KINKEHEE,
THOMAS WEST,
THOMAS FACTOR,
Seminole Commission.
A. J. BROWN,
Secretary.
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 33
Therefore,
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled, That the same be, and is hereby,
ratified and confirmed, and all laws and parts of laws inconsistent therewith
are hereby repealed.
Approved, July 1, 1898.
[Act of March 1, 1899 (30 Stat. L., 939).]
For salaries of four commissioners, appointed under acts of Congress approved
March third, eighteen hundred and ninety-three, and March second, eighteen
hundred and ninety-five, to negotiate with the Five Civilized Tribes in the Indian
Territory, twenty thousand dollars: Provided, That the number of said com
missioners is hereby fixed at four. For expenses of commissioners and neces
sary expenses of employees, sixty thousand dollars : And provided further, That
three dollars per diem for expenses of a clerk detailed as special disbursing agent
by Interior Department, while on duty with the Commission, shall be paid there
from ; for clerical help, including secretary of the Commission and interpreters,
thirty-nine thousand nine hundred and eighty dollars ; for contingent expenses
of the Commission, three thousand five hundred dollars ; in all, one hundred and
twenty-three thousand four hundred and eighty dollars.
That said Commission shall continue to exercise all authority heretofore con
ferred on it by law.
[Act of March 3, 1899 (30 Stat. L., 1233).]
(Deficiency bill.)
* * * To begin allotments, thirty thousand dollars; * * *
[Act of May 31, 1900 (31 Stat. L., 221).]
For salaries of four commissioners, appointed under acts of Congress approved
March third, eighteen hundred and ninety-three, and March second, eighteen
hundred and ninety-five, to negotiate with the Five Civilized Tribes in the Indian
Territory, twenty thousand dollars : Provided, That the number of said com
missioners is hereby fixed at four. For expenses of commissioners and neces
sary expenses of employees, and three dollars per diem for expenses of a clerk
detailed as special disbursing agent by Interior Department, while on duty with
the Commission, shall be paid therefrom ; for clerical help, including secretary of
the Commission and interpreters, five hundred thousand dollars, to be imme
diately available; for contingent expenses of the Commission, four thousand
dollars; in all, five hundred and twenty-four thousand dollars: Provided ftirther,
That this appropriation may be used by said Commission in the prosecution of
all work to be done by or under its direction as required by statute.
That said Commission shall continue to exercise all authority heretofore con
ferred on it by law. But it shall not receive, consider, or make any record of
any application of any person for enrollment as a member of any tribe in Indian
Territory who has not been a recognized citizen thereof, and duly and lawfully
enrolled or admitted as such, and its refusal of such applications shall be final
when approved by the Secretary of the Interior : Provided, That any Mississippi
Choctaw duly identified as such by the United States Commission to the Five
Civilized Tribes shall have the right, at any time prior to the approval of the
final rolls of the Choctaws and Chickasaws by the Secretary of the Interior, to
make settlement within the Choctaw-Chickasaw country, and on proof of the
fact of bona fide settlement may be enrolled by the said United States Com
mission and by the Secretary of the Interior as Choctaws entitled to allotment :
Provided further, That all contracts or agreements looking to the sale or incum-
brance in any \vay of the lands to be allotted to said Mississippi Choctaws shall
be null and void.
To pay all expenses incident to the survey, platting, arid appraisement of town
sites in the Choctaw, Chickasaw, Creek, and Cherokee nations, Indian Territory,
as required by sections fifteen and twenty-nine of an act entitled "An act for
the protection of the people of the Indian Territory, and for other purposes,"
approved June twenty-eighth, eighteen hundred and ninety-eight, for the bal
ance of the current year and for the year ending June thirtieth, nineteen hun
dred and one, the same to be immediately available, sixty-seven thousand dol-
33753—06 M 3
34 LAWS AFFECTING THE FIVE CIVILIZED TKIBES.
lars, or so much as may be necessary : Provided, That the Secretary of the Inte
rior is hereby authorized, under rules and regulations to be prescribed by him,
to survey, lay out, and plat into town lots, streets, alleys, and parks the sites of
such towns and villages in the Choctaw, Chickasaw, Creek, and Cherokee nations
as may at that time have a population of two hundred or more in such manner
as will best subserve the then present needs and the reasonable prospective
growth of such towns. The work of surveying, laying out, and platting such
town sites shall be done by competent surveyors, who shall prepare five copies
of the plat of each town site, which, when the survey is approved by the Secre
tary of the Interior, shall be filed as follows : One in the office of the Commis
sioner of Indian Affairs, one with the principal chief of the nation, one with the
clerk of the court within the territorial jurisdiction of which the town is
located, one with the Commission to the Five Civilized Tribes, and one with the
town authorities, if there be such. Where in his judgment the best interests of
the public service require, the Secretary of the Interior may secure the sur
veying, laying out, and platting of town sites in any of said nations by contract.
Hereafter the work of the respective town-site commissions provided for in
the agreement with the Choctaw and Chickasaw tribes ratified in section twenty-
nine of the act of June twenty-eighth, eighteen hundred and ninety-eight, entitled,
"An act for the protection of the people of the Indian Territory, and for other
purposes," shall begin as to any town site immediately upon the approval of the
survey by the Secretary of the Interior and not before.
The Secretary of the Interior may in his discretion appoint a town-site com
mission consisting of three members for each of the Creek and Cherokee nations,
at least one of whom shall be a citizen of the tribe and shall be appointed upon
the nomination of the principal chief of the tribe. Each commission, under the
supervision of the Secretary of the Interior, shall appraise and sell for the bene
fit of the tribe the town lots in the nation for which it is appointed, acting in
conformity with the provisions of any then existing act of Congress or agree
ment with the tribe approved by Congress. The agreement of any two members
of the commission as to the true value of any lot shall constitute a determination
thereof, subject to the approval of the Secretary of the Interior, and if no two
members are able to agree the matter shall be determined by such Secretary.
Where in his judgment the public interests will be thereby subserved, the Sec
retary of the Interior may appoint in the Choctaw, Chickasaw, Creek, or Chero
kee nation a separate town-site commission for any town, in which event as to
that town such local commission may exercise the same authority and perform
the same duties which would otherwise devolve upon the commission for that
nation. Every such local commission shall be appointed in the manner provided
in the act approved June twenty-eighth, eighteen hundred and ninety-eight,
entitled "An act for the protection of the people of the Indian Territory."
The Secretary of the Interior, where in his judgment the public interests will
be thereby subserved, may permit the authorities of any town in any of said
nations, at the expense of the town, to survey, lay out, and plat the site thereof,
subject to his supervision and approval, as in other instances.
As soon as the plat of any town site is approved, the proper commission shall,
with all reasonable dispatch and within a limited time, to be prescribed by the
Secretary of the Interior, proceed to make the appraisement of the lots and
improvements, if any, thereon, and after the approval thereof by the Secretary
of the Interior, shall, under the supervision of such Secretary, proceed to the
disposition and sale of the lots in conformity with any then existing act of
Congress or agreement with the tribe approved by Congress, and if the proper
commission shall not complete such appraisement and sale within the time
limited by the Secretary of the Interior, they shall receive no pay for such
additional time as may be taken by them, unless the Secretary of the Interior
for good cause shown shall expressly direct otherwise.
The Secretary of the Interior may, for good cause, remove any member of any
town-site commission, tribal or local, in any of said nations, and may fill the
vacancy thereby made or any vacancy otherwise occurring in like manner as the
place was originally filled.
It shall not be required that the town-site limits established in the course of
the platting and disposing of town lots and the corporate limits of the town, if
incorporated, shall be identical or coextensive, but such town-site limits and cor
porate limits shall be so established as to best subserve the then present needs
and the reasonable prospective growth of the town, as the same shall appear at
the times when such limits are respectively established : Provided further, That
the exterior limits of all town sites shall be designated and fixed at the earliest
LAWS AFFECTING THE FIVE CIVILIZED TEIBES. 35
practicable time under rules and regulations prescribed by the Secretary of the
Interior.
Upon the recommendation of the Commission to the Five Civilized Tribes the
Secretary of the Interior is hereby authorized at any time before allotment to
set aside and reserve from allotment any lands in the Choctaw, Chickasaw,
Creek, or Cherokee nations, not exceeding one hundred and sixty acres in any
one tract, at such stations as are or shall be established in conformity with law
on the line of any railroad which shall be constructed or be in process of con
struction in or through either of said nations prior to the allotment of the lands
therein, and this irrespective of the population of such town site at the time.
Such town sites shall be surveyed, laid out, and platted, and the lands therein
disposed of for the benefit of the tribe in the manner herein prescribed for other
town sites : Provided further, That whenever any tract of land shall be set aside
as herein provided which is occupied by a member of the tribe, such occupant
shall be fully compensated for his improvements thereon under such rules and
regulations as may be prescribed by the Secretary of the Interior.
Nothing herein contained shall have the effect of avoiding any wrork hereto
fore done in pursuance of the said act of June twenty-eighth, eighteen hundred
and ninety-eight, in the way of surveying, laying out, or platting of town sites,
appraising or disposing of town lots in any of said nations, but the same, if not
heretofore carried to a state of completion, may be completed according to the
provisions hereof.
AGREEMENT BETWEEN THE UNITED STATES COMMISSION TO THE FIVE CIVILIZED
TRIBES AND THE SEMINOLE TRIBE OF INDIANS, OCTOBER 7, 1899.
[31 Stat. L., 250.]
This agreement by and between the Government of the United States, of the
first part, entered into in its behalf by the Commission to the Five Civilized
Tribes, Henry L. Dawes, Tarns Bixby, Archibald S. McKennon, and Thomas B.
Needles, duly appointed and authorized thereunto, and the Seminole tribe of
Indians in Indian Territory, of the second part, entered into in behalf of said
tribe by John F. Brown and K. N. Kinkehee, commissioners duly appointed and
authorized thereunto, witnesseth :
First. That the Commission to the Five Civilized Tribes, in making the rolls
of Seminole citizens, pursuant to the act of Congress approved June twenty-
eighth, eighteen hundred and ninety-eight, shall place on said rolls the names
of all children born to Seminole citizens up to and including the thirty-first day
of December, eighteen hundred and ninety-nine, and the names of all Seminole
citizens then living; and the rolls so made, when approved by the Secretary of
the Interior, as provided in said act of Congress, shall constitute the final rolls
of Seminole citizens upon which the allotment of lands and distribution of
money and other property belonging to the Seminole Indians shall be made, and
to no other persons.
Second. If any member of the Seminole tribe of Indians shall die after the
thirty-first day of December, eighteen hundred and ninety-nine, the lands,
money, and other property to which he would be entitled if living shall descend
to his heirs who are Seminole citizens, according to the laws of descent and
distribution of the State of Arkansas, and be allotted and distributed to them
accordingly : Provided, That in all cases where such property would descend to
the parents under said laws the same shall first go to the mother instead of the
father, and then to the brothers and sisters, and their heirs, instead of the
father.
Third. This agreement to be ratified by the general council of the Seminole
Nation and by the Congress of the United States.
In witness whereof the said commissioners hereunto affix their names, at
Muskogee, Indian Territory, this seventh day of October, eighteen hundred and
ninety-nine.
HENRY L. DAWES,
TAMS BIXBY,
ARCHIBALD S. MCKENNON,
i THOMAS B. NEEDLES,
Commission to the Five Civilized Tribes.
JOHN F. BROWN,
K. N. KINKEHEE,
Seminole Commissioners.
36 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
[Act of March 3, 1901 (31 Stat. L., 1073).]
For salaries of four commissioners, appointed under acts of Congress ap
proved March third, eighteen hundred and ninety-three, and March second,
eighteen hundred and ninety-five, to negotiate with the Five Civilized Tribes
in the Indian Territory, twenty thousand dollars : Provided, That the number
of said commissioners is hereby fixed at four. For expenses of commissioners
and necessary expenses of employees, and three dollars per diem for expenses
of a clerk detailed as special disbursing agent by Interior Department, while on
duty with the Commission, shall be paid therefrom ; for clerical help, including
secretary of the Commission and interpreters, three hundred thousand dollars ;
for contingent expenses of the Commission, four thousand dollars ; in all, three
hundred and twenty-four thousand dollars : Provided further, That this appro
priation may be used by said Commission in the prosecution of all work to be
done by or under its direction as required by law ; and said commissioners shall
at once make an itemized statement to the Secretary of the Interior of all their
expenditures up to January first, nineteen hundred and one, and annually there
after : And provided further, That not to exceed ten thousand four hundred
dollars of the above amount may be used in the temporary employment in the
office of the Commissioner of Indian Affairs of three clerks, at the rate of one
thousand six hundred dollars per annum, who shall be competent to examine
records in disputed citizenship cases and law contests growing out of the work
of said Commission, and in the temporary employment in said office of three
competent stenographers, at the rate of one thousand dollars each per annum,
to be immediately available.
*******
The rolls made by the Commission to the Five Civilized Tribes, when ap
proved by the Secretary of the Interior, shall be final, and the persons whose
names are found thereon shall alone constitute the several tribes which they
represent ; and the Secretary of the Interior is authorized and directed to fix
a time by agreement with said tribes or either of them for closing said rolls,
but upon failure or refusal of said tribes or any of them to agree thereto, then
the Secretary of the Interior shall fix a time for closing said rolls, after which
no name shall be added thereto.
That no act, ordinance, or resolution of the Creek or Cherokee tribes, except
resolutions for adjournment, shall be of any validity until approved by the
President of the United States. Wh.en such acts, ordinances, or resolutions
passed by the council of either of said tribes shall be approved by the principal
chief thereof, then it shall be the duty of the national secretary of said tribe to
forward them to the President of the United States, duly certified and sealed,
who shall, within thirty days after their reception, approve or disapprove the
same. Said acts, ordinances, or resolutions, when so approved, shall be pub
lished in at least two newspapers having a bona fide circulation in the tribe
to be affected thereby, and when disapproved shall be returned to the tribe
enacting the same.
Creek agreement, March 8, 1900.
[31 Stat. L., 861.]
AN ACT To ratify and confirm an agreement with the Muscogee or Creek tribe of Indians,
and for other purposes.
Be it enacted ~by the Senate and House of Representatives of the United States
of America in Congress assembled, That the agreement negotiated between the
Commission to the Five Civilized Tribes and the Muskogee or Creek tribe of
Indians at the city of Washington on the eighth day of March, nineteen hundred,
as herein amended, is hereby accepted, ratified, and confirmed, and the same
shall be of full force and effect when ratified by the Creek national council.
The principal chief, as soon as practicable after the ratification of this agreement
by Congress, shall call an extra session of the Creek national council and lay
before it this agreement and the act of Congress ratifying it, and if the agree
ment be ratified by said council, as provided in the constitution of said nation,
he shall transmit to the President of the United States the act of council ratify
ing the agreement, and the President of the United States shall thereupon issue
his proclamation declaring the same duly ratified, and that all the provisions of
this agreement have become law according to the terms thereof : Provided, That
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 37
such ratification by the Creek national council shall be made within ninety clays
from" the approval of this act by the President of the United States.
This agreement by and between the United States, entered into in its behalf
by the Commission to the Five Civilized Tribes, Henry L. Dawes, Tarns Bixby,
Archibald S. McKennon, and Thomas B. Needles, duly appointed and authorized
thereunto, and the Muskogee (or Creek) tribe of Indians, in Indian Territory,
entered into in behalf of said tribe by Pleasant Porter, principal chief, and
George A. Alexander, David M. Hodge, Isparhecher, Albert P. McKellop, and
Cub Mclntosh, delegates, duly appointed and authorized thereunto.
Witnesseth that in consideration of the mutual undertakings herein contained
it is agreed as follows :
DEFINITIONS.
1. The words " Creek " and " Muskogee," as used in this agreement, shall be
deemed synonymous, and the words " Creek Nation " and " tribe " shall each be
deemed to refer to the Muskogee Nation or Muskogee tribe of Indians in Indian
Territory. The words " principal chief " shall be deemed to refer to the prin
cipal chief of the Muskogee Nation. The words " citizen " or " citizens " shall
be deemed to refer to a member or members of the Muskogee tribe or nation of
Indians. The words " The Dawes Commission " or " Commission " shall be
deemed to refer to the United States Commission to the Five Civilized Tribes.
GENERAL ALLOTMENT OF LANDS.
2. All lands belonging to the Creek tribe of Indians in the Indian Territory,
except town sites and lands herein reserved for Creek schools and public build
ings, shall be appraised at their true value, excluding only lawful improvements
on lands in actual cultivation. The appraisement shall be made under direction
of the Dawes Commission by such number of committees, with necessary assist
ance, as may be deemed necessary to expedite the work, one member of each
committee to be appointed by the principal chief ; and if the members of any
committee fail to agree as to the value of any tract of land, the value thereof
shall be fixed by said Commission. Each committee shall make report of its
work to said Commission, which shall from time to time prepare reports of same,
in duplicate, and transmit them to the Secretary of the Interior for his approval,
and when approved one copy thereof shall be returned to the office of said Com
mission for its use in making allotments as herein provided.
3. All lands of said tribe, except as herein provided, shall be allotted among
the citizens of the tribe by said Commission so as to give each an equal share of
the whole in value, as nearly as may be, in manner following: There shall be
allotted to each citizen one hundred and sixty acres of land — boundaries to con
form to the Government survey — which may be selected by him so as to include
improvements which belong to him. One hundred and sixty acres of land,
valued at six dollars and fifty cents per acre, shall constitute the standard value
of an allotment, and shall be the measure for the equalization of values ; and
any allottee receiving lands of less than such standard value may, at any time,
select other lands which at their appraised value are sufficient to make his allot
ment equal in value to the standard so fixed.
If any citizen select lands, the appraised value of which, for any reason, is
in excess of such standard value, the excess of value shall be charged against
him in the future distribution of the funds of the tribe arising from all sources
whatsoever, and he shall not receive any further distribution of property or
funds of the tribe until all other citizens have received lands and money equal
in value to his allotment. If any citizen select lands the appraised value of
which is in excess of such standard value, he may pay the overplus in money,
but if he fail to do so, the same shall be charged against him in the future
distribution of the funds of the tribe arising from all sources whatsoever, and
lie shall not receive any further distribution of property or funds until all other
citizens shall have received lands and funds equal in value to his allotment ;
and if there be not sufficient funds of the tribe to make the allotments of all
other citizens of the tribe equal in value to his, then the surplus shall be a lien
upon the rents and profits of his allotment until paid.
4. Allotment for any minor may be selected by his father, mother, or guardian,
in the order named, and shall not be sold during his minority. All guardians
or curators appointed for minors and incompetents shall be citizens.
Allotments may be selected for prisoners, convicts, and aged and infirm per-
38 LAWS AFFECTING THE FIVE CIVILIZED TKIBES.
sons by their duly appointed agents, and for incompetents by guardians,
curators, or suitable persons akin to them, but it shall be the duty of said" Com
mission to see that such selections are made for the best interests of such
parties.
5. If any citizen have in his possession, in actual cultivation, lands in excess
of what he and his wife and minor children are entitled to take, he shall,
within ninety days after the ratification of this agreement, select therefrom
allotments for himself and family aforesaid, and if he have lawful improve
ments upon such excess he may dispose of the same to any other citizen, who
may thereupon select lands so as to include such improvements ; but, after the
expiration of ninety days from the ratification of this agreement, any citizen
may take any lands not already selected by another ; but if lands so taken
be in actual cultivation, having thereon improvements belonging to another
citizen, such improvements shall be valued by the appraisement committee,
and the amount paid to the owner thereof by the allottee, and the same shall be
a lien upon the rents and profits of the land until paid : Provided, That the
owner of improvements may remove the same if he desires.
ft. All allotments made to Creek citizens by said Commission prior to the
ratification of this agreement, as to which there is no contest, and which do
not include public property, and are not herein otherwise affected, are con
firmed, and the same shall, as to appraisement and all things else, be governed
by the provisions of this agreement ; and said Commission shall continue the
work of allotment of Creek lands to citizens of the tribe as heretofore, con
forming to provisions herein ; and all controversies arising between citizens as
to their right to select certain tracts of land shall be determined by said
Commission.
7. Lands allotted to citizens hereunder shall not in any manner whatsoever
or at any time be incumbered, taken, or sold to secure or satisfy any debt or
obligation contracted or incurred prior to the date of the deed to the allottee
therefor, and such lands shall not be alienable by the allottee or his heirs at
any time before the expiration of five years from the ratification of this
agreement, except with the approval of the Secretary of the Interior.
Each citizen shall select from his allotment forty acres of land as a home
stead, which shall be nontaxable and inalienable and free from any incumbrance
whatever for twenty-one years, for which he shall have a separate deed, con
ditioned as above : Provided, That selections of homesteads for minors, pris
oners, convicts, incompetents, and aged and infirm persons, who can not select
for themselves, may be made in the manner herein provided for the selection
of their allotments; and if, for any reason, such selection be not made for any
citizen, it shall be the duty of said Commission to make selection for" him.
The homestead of each citizen shall remain, after the death of the allottee,
for the use and support of children born to him after the ratification of this
agreement, but if he have no such issue, then he may dispose of his homestead
by will, free from limitation herein imposed, and if this be not done, the land
shall descend to his heirs, according to the laws of descent and distribution of
the Creek Nation, free from such limitation.
8. The Secretary of the Interior shall, through the United States Indian
agent in said Territory, immediately after the ratification of this agreement,
put each citizen who has made selection of his allotment in unrestricted posses
sion of his land and remove therefrom all persons objectionable to him ; and
when any citizen shall thereafter make selection of his allotment as herein pro
vided, and receive certificate therefor, he shall be immediately thereupon so
placed in possession of his land.
9. When allotment of one hundred and sixty acres has been made to each citi
zen, the residue of lands, not herein reserved or otherwise disposed of, and all
the funds arising under this agreement shall be used for the purpose of equaliz
ing allotments, and if the same be insufficient therefor the deficiency shall be
supplied out of any other funds of the tribe, so that the allotments of all citizens
may be made equal in value, as nearly as may be, in manner herein provided.
TOWN SITES.
10. All towns in the Creek Nation having a present population of two hundred
or more shall, and all others may, be surveyed, laid out, and appraised under
the provisions of an act of Congress entitled "An act making appropriations for
the current and contingent expenses of the Indian Department and for fulfilling
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 39
treaty stipulations with various Indian tribes for the fiscal year ending June
thirtieth, nineteen hundred and one, and for other purposes," approved May
thirty-first, nineteen hundred, which said provisions are as follows :
That the Secretary of the Interior is hereby authorized, under rules and regulations to
be prescribed by him, to survey, lay out, and plat into town lots, streets, alleys, and parks
the sites of such towns and villages in the Choctaw, Chickasaw, Creek, and Cherokee
nations, as may at that time have a population of two hundred or more, in such manner
as will best subserve the then present needs and the reasonable prospective growth of such
towns. The work of surveying, laying out, and platting such town sites shall be done by
competent surveyors, who shall prepare five copies of the plat of each town site, which,
when the survey is approved by the Secretary of the Interior, shall be filed as follows :
One in the office of the Commissioner of Indian Affairs, one with the principal chief of
the nation, one with the clerk of the court within the territorial jurisdiction of which the
town is located, one with the Commission to the Five Civilized Tribes, and one with the
town authorities, if there be such. Where in his judgment the best interests of the public
service require, the Secretary of the Interior may secure the surveying, laying out, and
platting of town sites in any of said nations by contract.
Hereafter the work of the respective town-site commissions provided for in the agree
ment with the Choctaw and Chickasaw tribes ratified in section twenty-nine of the act of
June twenty-eighth, eighteen hundred and ninety-eight, entitled "An act for the protection
of the people of the Indian Territory, and for other purposes," shall begin as to any town
site immediately upon the approval of the survey by the Secretary of the Interior, and
not before.
The Secretary of the Interior may, in his discretion, appoint a town-site commission
consisting of three members tor each of the Creek and Cherokee nations, at least one of
whom shall be a citizen of the tribe and shall be appointed upon the nomination of the
principal chief of the tribe. Each commission, under the supervision of the Secretary of
the Interior, shall appraise and sell for the benefit of the tribe the town lots in the nation
for which it is appointed, acting in conformity with the provisions of any then existing
act of Congress or agreement with the tribe approved by Congress. The agreement of
any two members of the commission as to the true value of any lot shall constitute a
determination thereof, subject to the approval of the Secretary of the Interior, and if no
two members are able to agree the matter shall be determined by such Secretary.
Where in his judgment the public interests will be thereby subserved, the Secretary of
the Interior may appoint in the Choctaw, Chickasaw, Creek, or Cherokee Nation a sepa
rate town-site commission for any town, in which event as to that town such local com
mission may exercise the same authority and perform the same duties which would other
wise devolve upon the commission for that nation. Every such local commission shall be
appointed in the manner provided in the act approved June twenty-eighth, eighteen hun
dred and ninety-eight, entitled "An act for the protection of the people of the Indian
Territory."
The Secretary of the Interior, where in his judgment the public interests will be thereby
subserved, may permit the authorities of any 'town in any of said nations, at the expense
of the town, to survey, lay out, and plat the site thereof, subject to his supervision and
approval, as in other instances.
As soon as the plat of any town site is approved, the proper commission shall with all
reasonable dispatch and within a limited time, to be prescribed by the Secretary of the
Interior, proceed to make the appraisement of the lots and improvements, if any, thereon,
and after the approval thereof by the Secretary of the Interior, shall, under the super
vision of such Secretary, proceed to the disposition and sale of the lots in conformity with
nnv then existing act of Congress or agreement with the tribe approved by Congress, and
if the proper commission shall not complete such appraisement and sale within the time
limited by the Secretary of the Interior, they shall receive no pay for such additional time
as may be taken by them, unless the Secretary of the Interior for good cause shown shall
expressly direct otherwise.
The Secretary of the Interior may, for good cause, remove any member of any town-site
commission, tribal or local, in any of said nations, and may fill the vacancy thereby made
or any vacancy otherwise occurring in like manner as the place was originally filled.
It shall not be required that the town-site limits established in the course of the plat
ting and disposing of town lots and the corporate limits of the town, if incorporated,
shall be identical or coextensive, but such town-site limits and corporate limits shall be
so established as to best subserve the then present needs and the reasonable prospective
growth of the town, as the same shall appear at the times when such limits are respec
tively established : Provided further, That the exterior limits of all town sites shall be
designated and fixed at the earliest practicable time under rules and regulations prescribed
by the Secretary of the Interior.
Upon the recommendation of the Commission to the Five'Civilized Tribes the Secretary
of the Interior is hereby authorized at any time before allotment to set aside and reserve
from allotment any lands in the Choctaw, Chickasaw, Creek, or Cherokee nations, not
exceeding one hundred and sixty acres in any one tract, at such stations as are or shall
be established in conformity with law on the line of any railroad which shall be con
structed or be in process of construction in or through either of said nations prior to the
allotment of the lands therein, and this irrespective of the population of such town site at
the time. Such town sites shall be surveyed, laid out, and platted, and the lands therein
disposed of for the benefit of the tribe in the manner herein prescribed for other town
sites : Provided further, That whenever any tract of land shall be set aside as herein pro
vided which is occupied by a member of the tribe, such occupant shall be fully compen
sated for his improvements thereon under such rules and regulations as may be pre
scribed by the Secretary of the Interior : Provided, That hereafter the Secretary of the
Interior may, whenever the chief executive or principal chief of said nation fails or
refuses to appoint a town-site commissioner for any town or to fill any vacancy caused
by the neglect or refusal of the town-site commissioner appointed by the chief executive
or principal chief of said nation to qualify or act, in his discretion, appoint a commis
sioner to fill the vacancy thus created.
II. Any person in rightful possession of any town lot having improvements
thereon, other than temporary buildings, fencing, and tillage, shall have the right
40 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
to purchase such lot by paying one-half of the appraised value thereof, but if he
shall fail within sixty days to purchase such lot and make the first payment
thereon, as herein provided, the lot and improvements shall be sold at public
auction to the highest bidder, under direction of the appraisement commission,
at a price not less than their appraised value, and the purchaser shall pay the
purchase price to the owner of the improvements, less the appraised value of i in
let.
12. Any person having the right of occupancy of a residence or business lot, or
both, in any town, whether improved or not, and owning no other lot or land
therein, shall have the right to purchase such lot by paying one-half of the
appraised value thereof.
13. Any person holding lands within a town occupied by him as a home, also
any person who had at the time of signing this agreement purchased any lot,
tract, or parcel of land from any person in legal possession at the time, shall
have the right to purchase the lot embraced in same by paying one-half of the
appraised value thereof, not, however, exceeding four acres.
14. All town lots not having thereon improvements, other than temporary
buildings, fencing, and tillage, the sale or disposition of which is not herein other
wise specifically provided for, shall be sold within twelve months after their
appraisement, under direction of the Secretary of the Interior, after due adver
tisement, at public auction to the highest bidder at not less than their appraised
value.
Any person having the right of occupancy of lands in any town which has been
or may be laid out into town lots, to be sold at public auction as above, shall
have the right to purchase one-fourth of all the lots into which such lands may
have been divided at two-thirds of their appraised value.
15. When the appraisement of any town lot is made, upon which any person
has improvements as aforesaid, said appraisement commission shall notify him
of the amount of said appraisement, and he shall, within sixty days thereafter,
make payment of ten per centum of the amount due for the lot, as herein pro
vided, and four months thereafter he shall pay fifteen per centum additional and
the remainder of the purchase money in three equal annual installments, without
interest.
Any person who may purchase an unimproved lot shall proceed to make pay
ment for same in such time and manner as herein provided for the payment of
sums due on improved lots, and if in any case any amount be not paid when due,
it shall thereafter bear interest at the rate of ten per centum per annum until
paid. The purchaser may in any case at any time make full payment for any
town lot.
16. All town lots purchased by citizens in accordance with the provisions of
this agreement shall be free from incumbrance by any debt contracted prior to
date of his deed therefor, except for improvements thereon.
17. No taxes shall be assessed by any town government against any town lot
remaining unsold, but taxes may be assessed against any town lot sold as herein
provided, and the same shall constitute a lien upon the interest of the purchaser
therein after any payment thereon has been made by him, and if forfeiture of
any lot be made all taxes assessed against such lot shall be paid out of any
money paid thereon by the purchaser.
18. The surveyors may select and locate a cemetery within suitable distance
from each town, to embrace such number of acres as may be deemed necessary
for such purpose, and the appraisement commission shall appraise the same at
not less than twenty dollars per acre, and the town may purchase the land by
paying the appraised value thereof; and if any citizen have improvement
thereon, other than fencing and tillage, they shall be appraised by said commis
sion and paid for by the town. The town authorities shall dispose of the lots
in such cemetery at reasonable prices, in suitable sizes for burial purposes, and
the proceeds thereof shall be applied to the general improvement of the property.
19. The United States may purchase, in any town in the Creek Nation, suitable
land for court-houses, jails, and other necessary public buildings for its use, by
paying the appraised value thereof, the same to be selected under the direction
of the department for whose use such buildings are to be erected ; and if any
person have improvements thereon, other than tempoi-ary buildings, fencing, and
tillage, the same shall be appraised and paid for by the United States.
20. Henry Kendall College, Nazareth Institute, and Spaulding Institute, in
Muskogee, may purchase the parcels of land occupied by them, or which may
have been laid out for their use and so designated upon the plat of said town,
at one-half of their appraised value, upon conditions herein provided ; and all
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 41
other schools and institutions of learning located in incorporated towns in the
Creek Nation may, in like manner, purchase the lots or parcels of land occupied
by them.
21. All town lots or parts of lots, not exceeding fifty by one hundred and fifty
feet in size, upon which church houses and parsonages have been erected, and
which are occupied as such at the time of appraisement, shall be properly con
veyed to the churches to which such improvements belong gratuitously, and if
such churches have other adjoining lots inclosed, actually necessary for their
use, they may purchase- the same by paying one-half the appraised value thereof.
2'2. The towns of Clarksville, Coweta, Gibson Station, and Mounds may be
surveyed and laid out in town lots and necessary streets and fiH^---'. mvl ni H'».I
as other towns, each to embrace such amount of land as may be deemed neces
sary, not exceeding one hundred and sixty acres for either, and Li manner nut
to include or interfere with the allotment of any citizen selected prior to the
date of this agreement, which survey may be made in manner provided for
other towns; and the appraisement of the town lots of said towns may be made
by any committee appointed for either of the other towns hereinbefore named, and
the lots in said towns may be disposed of in like manner and on the same con
ditions and terms as those of other towns. All of such work may be done
under the direction of and subject to the approval of the Secretary of the
Interior.
TITLES.
23. Immediately after the ratification of this agreement by Congress and the
tribe the Secretary of the Interior shall furnish the principal chief with blank
deeds necessary for all conveyances herein provided for, and the principal chief
shall thereupon proceed to execute in due form and deliver to each citizen who
has selected or may hereafter select his allotment, which is not contested, a
deed conveying to him all right, title, and interest of the Creek Nation and of
all other citizens in and to the lands embraced in his allotment certificate, and
such other lands -as may have been selected by him for equalization of his
allotment.
The principal chief shall, in like manner and with like effect, execute and
deliver to proper parties deeds of conveyance in all other cases herein provided
for. All lands or town lots to be conveyed to any one person shall, so far as
practicable, be included in one deed, and all deeds shall be executed free of
charge.
All conveyances shall be approved by the Secretary of the Interior, which
shall serve as a relinquishment to the grantee of all the right, title, and interest
of the United States in and to the lands embraced in his deed.
Any allottee accepting such deed shall be deemed to assent to the allotment
and conveyance of all the lands of the tribe, as provided herein, and as a
relinquishment of all his right, title, and interest in and to the same, except in
the proceeds of lands reserved from allotment.
The acceptance of deeds of minors and incompetents, by persons authorized
to select their allotments for them, shall be deemed sufficient to bind such
minors and incompetents to allotment and conveyance of all other lands of the
tribe, as provided herein.
The transfer of the title of the Creek tribe to individual allottees and to other
persons, as provided in this agreement, shall not inure to the benefit of any
railroad company, nor vest in any railroad company any right, title, or interest
in or to any of the lands in the Creek Nation.
All deeds when so executed and approved shall be filed in the office of the
Dawes Commission, and there recorded without expense to the grantee, and
such records shall have like effect as other public records.
RESERVATIONS.
24. The following lands shall be reserved from the general allotment herein
provided for :
(a) All lands herein set apart for town sites.
(b) All lands to which, at the date of the ratification of this agreement, any
railroad company may, under any treaty or act of Congress, have a vested right
for right of way, depots, station grounds, water stations, stock yards or similar
uses connected with the maintenance and operation of the railroad.
(c) Forty acres for the Eufaula High School.
(d) Forty acres for the Wealaka Boarding School.
42 LAWS AFFECTING THE FIVE CIVILIZED TKIBES.
(e) Forty acres for the Newyaka Boarding School.
(f) Forty acres for the Wetumka Boarding School.
(g) Forty acres for the Euchee Boarding School,
(h) Forty acres for the Coweta Boarding School,
(i) Forty acres for the Creek Orphan Home.
(j) Forty acres for the Tallahassee Colored Boarding School.
(k) Forty acres for the Pecan Creek Colored Boarding School.
(1) Forty acres for the Colored Creek Orphan Home.
(m) All lands selected for town cemeteries, as herein provided.
(n) The lands occupied by the university established by the American Baptist
Home Mission Society, and located near the town of Muskogee, to the amount
of forty acres, which shall be appraised, excluding improvements thereon, and
said university shall have the right to purchase the same by paying one-half the
appraised value thereof, on terms and conditions herein provided. All improve
ments made by said university on lands in excess of said forty acres shall be
appraised and the value thereof paid to it by the person to whom such lands
may be allotted.
(o) One acre each for the six established Creek court-houses, with the im
provements thereon.
(p) One acre each for all churches and schools outside of towns now regu
larly used as such.
All reservations under the provisions of this agreement, except as otherwise
provided herein, when not needed for the purposes for which they are at present
used, shall be sold at public auction to the highest bidder, to citizens only, under
directions of the Secretary of the Interior.
MUNICIPAL CORPORATIONS.
25. Authority is hereby conferred upon municipal corporations in the Creek
Nation, with the approval of the Secretary of the Interior, to issue bonds and
borrow money thereon for sanitary purposes, and for the construction of sewers,
lighting plants, waterworks, and schoolhouses, subject to all the provisions of
laws of the United States in force in the organized Territories of the United
States in reference to municipal indebtedness and issuance of bonds for public
purposes ; and said provisions of law are hereby put in force in said nation
and made applicable to the cities and towns therein the same as if specially
enacted in reference thereto.
CLAIMS.
26. All claims of whatsover nature, including the " Loyal Creek claim " under
article four of the treaty of eighteen hundred and sixty-six, and the " Self-
emigration claim " under article twelve of the treaty of eighteen hundred and
thirty-two, which the tribe or any individual thereof may have against the
United States, or any other claim arising under the treaty of eighteen hundred
and sixty-six, or any claim which the United States may have against said
tribe, shall be submitted to the Senate of the United States for determination ;
and within two years from the ratification of this agreement the Senate shall
make final determination thereof ; and in the event that any sums are awarded
the said tribe, or any citizen thereof, provision shall be made for immediate
payment of same.
Of these claims the " Loyal Creek claim," for what they suffered because of
their loyalty to the United States Government during the civil war, long delayed,
is so urgent in its character that the parties to this agreement express the hope
that it may receive consideration and be determined at the earliest practicable
moment.
Any other claim which the Creek Nation may have against the United States
may be prosecuted in the Court of Claims of the United States, with right of
appeal to the Supreme Court; and jurisdiction to try and determine such claim
is hereby conferred upon said courts.
FUNDS OF THE TRIBE.
27. All treaty funds of the tribe shall hereafter be capitalized for the purpose
of equalizing allotments and for other purposes provided in this agreement.
LAWS AFFECTING THE FIVE CIVILIZED TKIBES. 43
KOLLS OF CITIZENSHIP.
28. No person, except as herein provided, shall he added to the rolls of citi
zenship of said tribe after the date of this agreement, and no person whomsoever
shall be added to said rolls after the ratification of this agreement.
All citizens who were living on the first day of April, eighteen hundred and
ninety-nine, entitled to be enrolled under section twenty-one of the act of
Congress approved June twenty-eighth, eighteen hundred and ninety-eight,
entitled "An act for the protection of the people of the Indian Territory, and
for other purposes," shall be placed upon the rolls to he made by said Com
mission under said act of Congress, and if any such citizen has died since that
time, or may hereafter die, before receiving his allotment of lands and distribu
tive share of all the funds of the tribe, the lands and money to which he would
be entitled, if living, shall descend to his heirs according to the laws of descent
i'lid distribution of the Creek Nation, and be allotted and distributed to them
accordingly.
All children born to citizens so entitled to enrollment, up to and including
the first day of July, nineteen hundred, and then living, shall be placed on the
rolls made by said Commission ; and if any such child die after said date, the
lands and moneys to which it would be entitled, if living, shall descend to its
heirs according to the laws of descent and distribution of the Creek Nation, and
be allotted and distributed to them accordingly.
The rolls so made by said Commission, when approved by the Secretary of
the Interior, shall be the final rolls of citizenship of said tribe, upon which the
allotment of all lands and the distribution of all moneys and other property of
the tribe shall be made, and to no other persons.
29. Said Commission shall have authority to enroll as Creek citizens certain
full-blood Creek Indians now residing in the Cherokee Nation, and also certain
lull-blood Creek Indians now residing in the Creek Nation who have recently
removed there from the State of Texas, and families of full-blood Creeks who
now reside in Texas, and such other recognized citizens found on the Creek rolls
as might, by reason of nonresidence, be excluded from enrollment by section
twenty-one of said act of Congress approved June twenty-eighth, eighteen hun
dred and ninety-eight: Provided, That such nonresidents shall, in good faith,
remove to the Creek Nation before said Commission shall complete the rolls of
Creek citizens as aforesaid.
MISCELLANEOUS.
30. All deferred payments, under provisions of this agreement, shall constitute
a lien in favor of the tribe on the property for which the debt was contracted,
and if at the expiration of two years from the date of payment of the fifteen
per centum aforesaid default in any annual payment has been made the lien
for the payment of all purchase money remaining unpaid may be enforced in
the United States court within the jurisdiction of which the town is located in
the same manner as vendor's liens are enforced ; such suit being brought in the
name of the principal chief, for the benefit of the tribe.
31. All moneys to be paid to the tribe under any of the provisions of this
agreement shall be paid, under the direction of the Secretary of the Interior,
into the Treasury of the United States to the credit of the tribe, and an
itemized report thereof shall be made monthly to the Secretary of the Interior
and to the principal chief.
32. All funds of the tribe, and all moneys accruing under the provisions of this
agreement, when needed for the purposes of equalizing allotments or for any
other purposes herein prescribed, shall be paid out under the direction of -the
Secretary of the Interior ; and when required for per capita payments, if any,
shall be paid out directly to each individual by a bonded officer of the United
States, under direction of the Secretary of the Interior, without unnecessary
delay.
33. No funds belonging to said tribe shall hereafter be used or paid out for
any purposes by any officer of the United States without consent of the tribe,
expressly given through its national council, except as herein provided.
34. The United States shall pay all expenses incident to the survey, platting,
and disposition of town lots, and of allotments of lands made under the pro
visions of this agreement, except where the town authorities have been or may
be duly authorized to survey and plat their respective towns at the expense of
such town.
44 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
35. Parents shall be the natural guardians of their children, and shall act for
them as such unless a guardian shall have been appointed by a court having
jurisdiction; and parents so acting shall not be required to give bond as
guardians unless by order of such court, but they; and all .other persons having
charge of lands, moneys, and other property belonging to minors and incom
petents, shall be required to make proper accounting therefor in trie court
having jurisdiction thereof in manner deemed necessary for the preservation
of such estates.
3G. All Seminole citizens who have heretofore settled and made homes upon
lands belonging to the ("reeks may there take, for themselves and their families,
such allotments as they would be entitled to take of Seminole lands, and all
Creek citizens who have heretofore settled and made homes upon lands belong
ing to Seminoles, may there take, for themselves and their families, allotments
of one hundred and sixty acres each ; and if the citizens of one tribe thus receive
a greater number of acres than the citizens of the other, the excess shall be
paid for by such tribe, at a price to be agreed upon by the principal chiefs of
the two tribes, and if they fail to agree, the price shall be fixed by the Indian
agent; but the citizenship of persons so taking allotments shall in no wise be
affected thereby.
Titles shall be conveyed to Seminoles selecting allotments of Creek lands in
manner herein provided for conveyance of ('reek allotments, and titles shall be
conveyed to Creeks selecting allotments of Seminole lands in manner provided
in the Seminole agreement dated December sixteenth, eighteen hundred and
ninety-seven, for conveyance of Seminole allotments: Provided, That deeds
shall be executed to allottees immediately after selection of allotment is made.
This provision shall not take effect until after it shall have been separately
and specifically approved by the Creek national council, and by the Seminole
general council ; and if not approved by either, it shall fail altogether, and be
eliminated from this agreement without impairing any other of its provisions.
37. Creek citizens may rent their allotments, when selected, for a term not
exceeding one year, and after receiving title thereto without restriction, if ad
joining allottees are not injured thereby, and cattle grazed thereon shall not be
liable to any tribal tax ; but when cattle are introduced into the Creek Nation
and grazed on lands not selected by citizens, the Secretary of the Interior is
authorized to collect from the owners thereof a reasonable grazing tax for the
benefit of the tribe; and section twenty-one hundred and seventeen, Revised
Statutes of the United States, shall not hereafter apply to Creek lands.
38. After any citizen has selected his allotment he may dispose of any timber
thereon, but if he dispose of such timber, or any part of same, he shall not
thereafter select other lands in lieu thereof, and his allotment shall be appraised
as if in condition when selected.
No timber shall be taken from lands not so selected, and disposed of, without
payment of reasonable royalty thereon, under contract to be prescribed by the
Secretary of the Interior.
39. No noncitizen renting lands from a citizen for agricultural purposes, as
provided by law, whether such lands have been selected as an allotment or not,
shall be required to pay any permit tax.
40. The Creek school fund shall be used, under direction of the Secretary of
the Interior, for the education of Creek citizens, and the Creek schools shall be
conducted under rules and regulations prescribed by him, under direct super
vision of the Creek school superintendent and a supervisor appointed by the
Secretary, and under Creek laws, subject to such modifications as the Secretary
of the Interior may deem necessary to make the schools most effective and to
produce the best possible results.
All teachers shall be examined by or under direction of said superintendent
and supervisor, and competent teachers and other persons to be engaged in and
about the schools with good moral character only shall be employed, but where
all qualifications are equal preference shall be given to citizens in such employ
ment.
All moneys for running the schools shall be appropriated by the Creek national
council, not exceeding the amount of the Creek school fund, seventy-six thou
sand four hundred and sixty-eight dollars and forty cents ; but if it fail or
refuse to make the necessary appropriations the Secretary of the Interior may
direct the use of a sufficient amount of the school funds to pay all expenses
necessary to the efficient conduct of the schools, strict account thereof to be ren
dered to him and to the principal chief.
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 45
All accounts for expenditures in running the schools shall be examined and
approved by said superintendent and supervisor, and also by the general superin
tendent of Indian schools, in Indian Territory, before payment thereof is made.
If the superintendent and supervisor fail to agree upon any matter under their
direction or control, it shall be decided by said general superintendent, subject
to appeal to the Secretary of the Interior ; but his decision shall govern until
reversed by the Secretary.
41. The provisions of section thirteen of the act of Congress approved June
twenty-eighth, eighteen hundred and ninety-eight, entitled "An act for the pro
tection of the people of the Indian Territory, and for other purposes," shall not
apply to or in any manner affect the lands or other property of said tribe, or be
in force in the Creek Nation, and no act of Congress or treaty provision incon
sistent with this agreement shall be in force in said nation, except section
fourteen of said last-mentioned act, which shall continue in force as if this
agreement had not been made.
42. No act, ordinance, or resolution of the national council of the Creek Nation-
in any manner affecting the lands of the tribe, or of individuals after allot
ment, or the moneys or other property of the tribe, or of the citizens thereof,
except appropriations for the necessary incidental and salaried expenses of
the Creek government as herein limited, shall be of any validity until approved
by the President of the United States. When any such act, ordinance, or reso
lution shall be passed by said council and, approved by the principal chief, a
true and correct copy thereof, duly certified, shall be immediately transmitted
to the President, who shall, within thirty days after received by him, approve
or disapprove the same. If disapproved, it shall be so indorsed and returned
to the principal chief ; if approved, the approval shall be indorsed thereon, and
it shall be published in at least two newspapers having a bona fide circulation
in the Creek Nation.
43. The United States agrees to maintain strict laws in said nation against
the introduction, sale, barter, or giving away of liquors or intoxicants of any
kind whatsoever.
44. This agreement shall in no wise affect the provisions of existing treaties
between the United States and said tribe except so far as inconsistent therewith.
45. All things necessary to carrying into effect the provisions of this agree
ment, not otherwise herein specifically provided for, shall be done under author
ity and direction of the Secretary of the Interior.
4(>. The tribal government of the Creek Nation shall not continue longer than
March fourth, nineteen hundred and six, subject to such further legislation as
Congress may deem proper.
47. Nothing contained in this agreement shall be construed to revive or rees
tablish the Creek courts, which have been abolished by former acts of Congress.
Approved, March 1, 1901.
[Act of February 28, 1902 (32 Stat. L., 43).]
AN ACT To grant the right of way through the Oklahoma Territory and the Indian Ter
ritory to the Enid and Anadarko Railway Company, and for other purposes.
Be it enacted l)y the Senate and House of Representatives of the United States
of America in Congress assembled, That the Enid and Anadarko Railway Com
pany, a corporation created under and by virtue of the laws of the Territory
of Oklahoma, be, and the same is hereby, invested and empowered with the
right of locating, constructing, owning, equipping, operating, using, and main
taining a railway and telegraph and telephone line through the Territory of
Oklahoma and the Indian Territory, beginning at a point on its railway between
Anadarko and Watonga, in the Territory of Oklahoma, thence in an easterly
direction by the most practicable route to a point on the eastern boundary of
the Indian Territory near Fort Smith, in the State of Arkansas, together with
such branch lines, to be built from any point on the line above described to any
other point in the Indian Territory as said railway company may at any time
hereafter decide to construct, with the right to construct, use, and maintain such
tracks, turn-outs, sidings, and extensions as said company may deem it to its
interest to construct along and upon the right of way and depot grounds hereby
granted.
SEC. 2. That said corporation is authorized to take and use, for all purposes of
a railway and for no other purpose, a right of way one hundred feet in width
through said Oklahoma Territory and said Indian Territory, and to take and
46 LAWS AFFECTING THE FIVE CIVILIZED TKIBES.
use a strip of land two hundred feet in width, with a length of two thousand
ieet, in addition to right of way, for stations for every eight miles of road, with
the right to use such additional grounds where there are heavy cuts or fills as
may he necessary for the construction and maintenance of the roadhed, not
exceeding one hundred feet in width on each side of said right of way, or as
much thereof as may he included in said cut or fill : Provided, That no moro
than said addition of land shall he taken for any one station : Provided further,
That no part of the lands herein authorized to he taken shall he leased or sold
hy the company, and they shall not he used except in such manner and for such
purposes only as shall he necessary for the construction and convenient opera
tion of said railway, telegraph, and telephone lines, and when any portion
thereof shall cease to he so used such portion shall revert to the nation or tribe
of Indians from which the same shall have heen taken.
SEC. 3. That before said railway shall he constructed through any lands held
by individual occupants according to the laws, customs, and usages of any of the
Indian nations or tribes through which it may be constructed, full compensation
shall be made to such occupants for all property to be taken or damage done by
reason of the construction of such railway. In case of failure to make amicable
settlement with any occupant, such compensation shall be determined by the
appraisement of three disinterested referees, to be appointed, one (who shall act
as chairman) by the Secretary of the Interior, one by the chief of the nation to
which said occupant belongs, and one by said railway company, who, before en
tering on the duties of their appointment, shall take and subscribe, before a dis
trict judge, clerk of a district court, or United States commissioner, an oath that
they will faithfully and impartially discharge the duties of their appointment,
which oath, duly certified, shall be returned with their award to and filed with
the Secretary of the Interior within sixty days from the completion thereof, and
a majority of said referees shall be competent to act in case of the absence of a
member, after due notice; and upon the failure of either party to make such
appointment within thirty days after the appointment made by the Secretary of
the Interior the vacancy shall be filled by a judge of the United States court for
the Indian Territory, upon the application of the other party. The chairman of
said board shall appoint the time and place for all hearings within the nation to
which such occupant belongs. Each of said referees shall receive for his
services the sum of four dollars per day for each day they are engaged in the
trial of any case submitted to them under this act, with mileage at five cents
per mile. Witnesses shall receive the usual fees allowed by the courts of said
nations. Costs, including compensation of the referees, shall be made a part of the
award and be paid by such railway company. In case the referees can not agree,
then any two of them are authorized to make the award. Either party being
dissatisfied with the finding of the referees shall have the right, within ninety
days after the making of the award and notice of the same, to appeal by original
petition to the United States court for the Indian Territory, which court shall
have jurisdiction to hear and determine the subject-matter of said petition,
according to the laws of the Territory in which the same shall be heard pro
vided for determining the damage when property is taken for railroad purposes.
If upon the hearing of said appeal the judgment of the court shall be for a larger
sum than the award of the referees, the cost of said appeal shall be adjudged
against the railway company. If the judgment of the court shall be for the
same sum as the award of the referees, then the costs shall be adjudged against
the appellant. If the judgment of the court shall be for a smaller sum than
the award of the referees, then the costs shall be adjudged against the party
claiming damages. When proceedings have been commenced in court, the rail
way company shall pay double the amount of the award into court to abide the
judgment thereof, and then have the right to enter upon the property sought to
be condemned and proceed with the construction of the railway.
SEC. 4. That said railway company shall not charge the inhabitants of said
Territory a greater rate of freight than the rate authorized by the laws of the
Territory of Oklahoma for services or transportation of the same kind: Provided,
That passenger rates on said railway shall not exceed three cents per mile.
Congress hereby reserves the right to regulate the charges for freight and pas
sengers on said railway and messages on said telegraph and telephone line until
a State government or governments shall exist in said Territory within the
limits of which said railway, or a part thereof, shall be located ; and then such
State government or governments shall be authorized to fix and regulate the cost
of transportation of persons and freights within their respective limits by said
railway ; but Congress expressly reserves the right to fix and regulate at all
LAWS AFFECTING THE FIV15 CIVILIZED TRIBES. 47
times the cost of such transportation by said railway or said company whenever
such transportation shall extend from one State into another or shall extend
into more than one State : Provided, however, That the rate of such transporta
tion of passengers, local or interstate, shall not exceed the rate above expressed :
And provided further, That said railway company shall carry the mail at such
prices as Congress may by law provide, and until such rate is fixed by law the
Postmaster-General may fix the rate of compensation.
SEC. 5. That said railway company shall pay to the Secretary of the Interior,
for the benefit of the particular nations or tribes through whose lands said main
line and branches may be located, the sum of fifty dollars, in addition to com
pensation provided for in this act, for property taken and damages done to indi
vidual occupants by the construction of the railway, for each mile of railway
that it may construct in said Territory, said payments to be made in installments
of five hundred dollars as each ten miles of road is graded : Provided, That if the
general council of said nations or tribes through whose lands said railway may
be located or the principal executive officer of the tribe if the general council be
not in session shall, within four months after the filing of maps of definite loca
tion, as set forth in section six of this act, dissent from the allowances provided
for in this section, and shall certify the same to the Secretary of the Interior,
then all compensation to be paid to such dissenting nation or tribe under the
provisions of this act shall be determined as provided in section three for the
determination of the compensation to be paid to the individual occupant of lands,
with the right of appeal to the courts upon the same terms, conditions, and
requirements as therein provided: Provided further, That the amount awarded
or adjudged to be paid by said railway company for said dissenting nation or
tribe shall be in lieu of the compensation that said nation or tribe would be
entitled to receive under the foregoing provisions. Said company shall also
pay, so long as said Territory is owned and occupied by the Indians in their
tribal relations to the Secretary of the Interior, the sum of fifteen dollars per
5innum for each mile of railway it shall construct in said Territory. The money
paid to the Secretary of the Interior under the provisions of this act shall be
apportioned by him in accordance with the laws and treaties now in force be
tween the United States and said nations or tribes, according to the number of
miles of railway that may be constructed by said railway company through their
lands : Provided, That Congress shall have the right, so long as said lands are
occupied and possessed by said nation or tribe, to impose such additional taxes
upon said railway as it may deem just and proper for their benefit ; and any
Territory or State hereafter formed through which said railway shall have been
established may exercise the like power as to such part of said railway as may
lie within its limits. Said railway company shall have the right to survey and
locate its railway immediately after the passage of this act.
SEC. G. That said company shall cause maps showing the route of its located
line through said Territory to be filed in the office of the Secretary of the In
terior, and also to be filed in the office of the principal chief of each of the
nations or tribes through whose lands said railway may be located, and after
the filing of said maps no claim for a subsequent settlement and improvement
upon the right of way shown by said maps shall be valid as against said com
pany : Provided, That when a map showing any portion of said railway com
pany's located line is filed as herein provided for, said company shall commence
grading said located line within six months thereafter, or such location shall
be void; and said location shall be approved by the Secretary of the Interior
in sections of twenty-five miles before construction of any such section shall be
begun.
SEC. 7. That the officers, servants, and employees of said company necessary
to the construction and management of said road shall be allowed to reside,
while so engaged, upon such right of way, but subject to the provisions of the
Indian intercourse laws, and such rules and regulations as may be established
by the Secretary of the Interior in accordance with said intercourse laws.
SEC. 8. That the United States court for the Indian Territory and such other
courts as may be authorized by Congress shall have, without reference to the
amount in controversy, concurrent jurisdiction over all controversies arising
between the said Enid and Anadarko Railway Company, and the nation and
tribe through whose territory said railway shall be constructed. Said courts
shall have like jurisdiction without reference to the amount in controversy over
all controversies arising between the inhabitants of said nation or tribe and
said railway company; and the civil jurisdiction of said courts is hereby ex
tended within the limits of said Indian Territory without distinction as to
48 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
citizenship of the parties, so far as may he necessary to carry out the provisions
of this act.
SEC. 9. That said railway company shall build at least one-tenth of its rail
way in said Territory within one year after the passage of this act, and com
plete its road within three years after the approval of its map of location hy
the Secretary of the Interior, or the rights herein granted shall he forfeited as
to that portion not huilt ; that said railway company shall construct and main
tain continually all road and highway crossings and necessary bridges over said
railway wherever said roads and highways do now or may hereafter cross said
railway's right of way, or may be by the proper authorities laid out across the
same.
SEC. 10. That the said Enid, and Anadarko Railway Company shall accept
this right of way upon the express condition, binding upon itself, its successors
and assigns, that they will neither aid, advise, nor assist in any effort looking
toward the changing or extinguishing the present tenure of the Indians in their
land, and will not attempt to secure from the Indian nation any further grant
of land or its occupancy than is hereinbefore provided: J'roridcd, That any
violation of the condition mentioned in this section shall operate as a forfeiture
of all the rights and privileges of said railway company under this act.
SEC. 11. That all mortgages executed by said railway company conveying any
portion of its railway, with its franchise that may be constructed in said Indian
Territory, shall be recorded in the Department of the Interior, and the record
thereof shall be evidence and notice of their execution and shall convey all
rights, franchises, and property of said company as therein expressed.
SEC. 12. That Congress may at any time amend, add to, alter, or repeal this
act, and the right of way herein and hereby granted shall not be assigned or
transferred in any form whatever prior to the construction and completion of
the road except as to mortgages or other liens that may be given or secured
thereon to aid in the construction thereof.
SEC. 13. That the right to locate, construct, own, equip, operate, use, and main
tain a railway and telegraph and telephone line or lines into, in, or through the
Indian Territory, together with the right to take and condemn lands for right
of way, depot grounds, terminals, and other railway purposes in or through any
lands held by any Indian tribe or nation, person, individual, or municipality in
said Territory, or in or through any lands in said Territory which have been or
may hereafter be allotted in severalty to any individual Indian or other person
under any law or treaty, whether the same have or have not been conveyed to
the allottee with full power of alienation, is hereby granted to any railway
company organized under the laws of the United States, or of any State or Ter
ritory which shall comply with this act.
SEC. 14. That the right of way of any railway company shall not exceed one
hundred feet in width, except where there are heavy cuts and fills, when one
hundred feet additional may be taken on each side of said right of way ; but
lands additional and adjacent to said right of way may be taken and condemned
by any' railway company for station grounds, buildings, depots, side tracks,
turn-outs, or other railroad purposes not exceeding two hundred feet in width
by a length of two thousand feet. That additional lands not exceeding forty
acres at any one place may be taken by any railway company when necessary
for yards, roundhouses, turntables, machine shops, water stations, and other
railroad purposes. And when necessary for a good and sufficient water supply
in the operation of any railroad, any such railway company shall have the
right to condemn additional lands for reservoirs for water stations and for such
purpose shall have the right to impound surface water or build dams across
any creek, draw, canyon, or stream, and shall have the right to connect the
same by pipe line with the railroad and take the necessary grounds for such
purposes; and any railway company shall have the right to change or
straighten its line, reduce its grades or curves, and locate new stations and to
take the lands and right of way necessary therefor under the provisions of
this act.
SEC. 15. That before any railroad shall be constructed or any lands taken or
condemned for any of the purposes set forth in the preceding section full com
pensation for such right of way and all land taken and all damage done or to
be done by the construction of the railroad, or the taking of any lands for rail
road purposes, shall be made to the individual owner, occupant, or allottee of
such lands and to the tribe or nation through or in which the same is situated :
Provided, That correct maps of the said line of railroad, in sections of twenty-
five miles each, and of any lands taken under this act, shall be filed in the
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 49
Department of the Interior, and shall also be filed with the United States
Indian agent for Indian Territory and with the principal chief or governor of
any tribe or nation through which the lines of railroad may be located or in
which said lines are situated.
In case of the failure of any railway company to make amicable settlement
with any individual owner, occupant, allottee, tribe, or nation for any right of
way or lands or improvements sought to be appropriated or condemned under
this act, all compensation and damages to be paid to the dissenting individual
owner, occupant, allottee, tribe, or nation by reason of the appropriation and con
demnation of said right of way, lands, or improvements shall be determined by
the appraisement of three disinterested referees, to be appointed by the judge of
the United States court or other court of jurisdiction in the district where said
lands are situated, on application of the corporation or other person or party in
interest. Such referees, before entering upon the duties of their appointment,
shall each take and subscribe, before competent authority, an oath that he will
faithfully and impartially discharge the duties of his appointment, which oaths,
duly certified, shall be returned with the award of the referees to the clerk of
the court by which they were appointed. The referees shall also find in their
report the names of the person and persons, tuibe, or nation to whom the damages
are payable and the interest of each person, tribe, or nation in the award of dam
ages. Before such referees shall proceed with the assessment of damages for
any right of way or other land condemned under this act, twenty days' notice
of the time when the same shall be condemned shall be given to all persons in
terested, by publication in some newspaper in general circulation near said
property in the district where said right of way or said lands are situated, or by
ten days' personal notice to each person owning or having any interest in said
lands or right of way : Provided, That such notice to any tribe or nation may be
served on the principal chief or governor of the tribe. If the referees can not
agree, then any two of them are authorized to and shall make the award. Any
party to the proceedings who is dissatisfied with the award of the referees shall
have the right, within ten days after the making of the award, to appeal, by
original petition, to the United States court or other court of competent juris
diction sitting at the place nearest and most convenient to the property sought
to be taken, where the question of the damages occasioned by the taking of the
land in controversy shall be tried de novo, and the judgment rendered by the
court shall be final and conclusive, subject, however, to appeal as in other cases.
When the award of damages is filed with the clerk of the court by the referees,
the railway company shall deposit the amount of such award with the clerk of
the court to abide the judgment thereof, and shall then have the right to enter
upon and take possession of the property sought to be condemned: Provided,
That when the said railway company is not satisfied with the award it shall
have the right before commencing construction to abandon any portion of said
right of way and adopt a new location, subject, however, as to such new location,
to all the provisions of this act. Each of the referees shall receive for his com
pensation the sum of four dollars per day while actually engaged in the appraise
ment of the property and the hearing of any matter submitted to them under this
act. Witnesses shall receive the fees and mileage allowed by law to the witness[es]
in courts of record within the districts where such lands are located. Costs,
including compensation of the referees, shall be made part of the award or judg
ment and be paid by the railway company : Provided, That if any party or per
son other than the railway company shall appeal from any award, and the judg
ment of the court does not award such appealing party or person more than the
referees awarded, all costs occasioned by such appeal shall be paid by such
appealing party or person.
SEC. 1(5. That where a railroad is constructed under the provisions of this act
there shall be paid by the railway company to the Secretary of the Interior, for
the benefit of the particular tribe or ration through whose lands any such rail
road may be constructed, an annual charge of fifteen dollars per mile for each
mile of road constructed, the same to be paid so long as said lands shall be
owned and occupied by such nation or tribe, which payment shall be in addition
to the compensation otherwise provided herein ; and the grants herein are made
upon the condition that Congress hereby reserves the right to regulate the
charges for freight and passengers on said railways and messages on all tele
graph and telephone lines until a State government or governments shall exist
33703—00 M 4
50 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
in said Territory within the limits of which any railway shall be located, and
then such State government or governments shall be authorized to fix and regu
late the cost of transportation of persons and freights within their respective
limits by such railways. But Congress expressly reserves the right to fix and
regulate at all times the cost of such transportation by said railways whenever
such transportation shall extend from one State into another, or shall extend into
more than one State; and that the railway companies shall carry the mail at
such prices as Congress may by law provide ; and until such rate is fixed by
law the Postmaster-General may fix the rate of compensation.
SEC. 17. That any railway company authorized to construct, own, or operate
a railroad in said Territory desiring to cross or unite its tracks with any other
railroad upon the grounds of such other railway company shall, after fifteen
days' notice in writing to such other railroad company make application in
writing to the judge of the United States court for the district in which it is
proposed to make such crossing or connection for the appointment of three
disinterested referees to determine the necessity, place, manner, and time of
such crossing or connection. The provisions of section three of this act with
respect to the condemnation of right of way through tribal or individual lands
shall, except as in this section otherwise provided, apply to proceedings to
acquire the right to cross or connect with another railroad. Upon the hearing
of any such application to cross or connect with any other railroad, either
party or the referees may call and examine witnesses in regard to the matter,
and said referees shall have the same power to administer oaths to witnesses
that is now possessed by United States commissioners in said Territory, and
said referees shall, after such hearing and a personal examination of the
locality where a crossing or connection is desired, determine whether there is a
necessity for such crossing or not, and, if so, the place thereof, whether it shall
be over or under the existing railroad, or at grade, and in other respects the
manner of such crossing, and the terms upon which the same shall be made and
maintained : Provided, That no crossing shall be made through the yards or
over the switches or side tracks of any existing railroad if a crossing can be
effected at any other place that is practicable. If either party shall be dis
satisfied with the terms of the order made by said referees it may appeal to
the United States court of the Indian Territory for the district wherein such
crossing or connection is sought to be made, in the same manner as appeals are
allowed from a judgment of a United States commissioner to said court, and
said appeal and all subsequent proceedings shall only affect the amount of
compensation, if any, and other terms of crossing fixed by said referees, but
shall not delay the making of said crossing or connection : Provided, That the
corporation desiring such crossing or connection shall deposit with the clerk
of the court the amount of compensation, if any is fixed by said referees, and
shall execute and file with said clerk a bond as sufficient security to be approved
by the court or a judge thereof in vacation, to pay all damages, and comply with
all terms that may be adjudged by the court. Any railway company which
shall violate or evade any of the provisions of this section shall forfeit for
every such offense, to the person, company, or corporation injured thereby,
three times the actual damages sustained by the party aggrieved.
SEC. 18. That when in any case two or more railroads crossing each other at
a common grade shall, by a system of interlocking or automatic signals, or by
any works or fixtures to be erected by them, render it safe for engines and
trains to pass over such crossings without stopping, and such interlocking or
automatic signals or works or fixtures shall be approved by the Interstate
Commerce Commissioners, then in that case it is hereby made lawful for the
engines and trains of such railroad or railroads to pass over such crossing with
out stopping, any law or the provisions of any law to the contrary notwith
standing ; and when two or more railroads cross each other at a common grade
either of such roads may apply to the Interstate Commerce Commissioners for
permission to introduce upon both of said railroads some system of interlock
ing or automatic signals or works or fixtures, rendering it safe for engines and
trains to pass over such crossings without stopping, and it shall be the duty of
said Interstate Commerce Commissioners, if the system of works and fixtures
which it is proposed to erect by said company are, in the opinion of the Com
mission, sufficient and proper, to grant such permission.
SEC. 19. That any railroad company which has obtained permission to intro
duce a system of interlocking or automatic signals at its crossing at a common
grade with any other railroad, as provided in the last section, may, after thirty
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 51
clays' notice, in writing, to such other railroad company, introduce and erect
such interlocking or automatic signals or fixtures ; and if such railroad com
pany, after such notification, refuses to join with the railroad company giving
such notice in the construction of such works or fixtures, it shall he lawful for
said company to enter upon the right of way and tracks of such second com
pany, in such manner as to not unnecessarily impede the operations of such
road, and erect such works and fixtures, and may recover in any action at law
from such second company one-half of the total cost of erecting and maintain
ing such interlocking or automatic signals or works or fixtures on both of said
roads.
SEC. 20. That all mortgages executed hy any railroad company conveying any
portion of its railway with its franchise that may be constructed in said Indian
Territory shall be recorded in the Department of the Interior, and the record
thereof shall be evidence and notice of their execution and shall convey all
rights, franchises, and property of said company as therein expressed.
SEC. 21. That Congress hereby reserves the right at any time to alter, amend,
or repeal this act, or any portion thereof.
SEC. 22. That any railway company which has heretofore acquired or may
hereafter acquire under any other act of Congress a railroad right of way in
Indian Territory may, in the manner herein prescribed, obtain any or all of the
benefits and advantages of this act, and in such event shall become subject to all
the requirements and responsibilities imposed by this act upon railroad com
panies acquiring a right of way hereunder. And where the time for the comple
tion of a railroad in Indian Territory under any act granting a right of way
therefor has expired or shall hereafter expire in advance of the construction of
such railroad, or of any part thereof, the Secretary of the Interior may, upon
good cause shown, extend the time for the completion of such railroad, or of any
part thereof, for a time not exceeding two years from the date of such extension.
SEC. 23. That an act entitled "An act to provide for the acquiring of rights of
way by railroad companies through Indian reservations, Indian lands, and In
dian allotments, and for other purposes," approved March second, eighteen hun
dred and ninety-nine, so far as applies to the Indian Territory and Oklahoma
Territory, and all other acts or parts of acts inconsistent witli this act are hereby
repealed : Provided, That such repeal shall not affect any railroad company
whose railroad is now actually being constructed or any rights which have
already accrued; but such railroads may be completed and such rights enforced
in the manner provided by the laws under which such construction was com
menced or under which such rights accrued : And provided further, That the pro
visions of this act shall apply also to the Osages' Reservation, and other Indian
reservations and allotted Indian lands in the Territory of Oklahoma, and all
judicial proceedings herein authorized may be commenced and prosecuted in the
courts of said Oklahoma Territory which may now or hereafter exercise juris
diction within said reservations or allotted lands.
Approved, February 28, 1902.
[Appropriation act of May 27, 1902 (32 Stat. L., 245).]
For salaries of four commissioners appointed under acts of Congress, approved
March third, eighteen hundred and ninety-three, and March second, eighteen
hundred and ninety-five, to negotiate with the Five Civilized Tribes in the Indian
Territory, twenty thousand dollars : Provided, That said Commission shall ex
ercise all the powers heretofore conferred upon it by Congress : Provided further,
That all children born to duly enrolled and recognized citizens of the Creek Na
tion up to and including the twenty-fifth day of May, nineteen hundred and one,
and then living, shall be added to the rolls of citizenship of said nation made
under the provisions of an act entitled "An act to ratify and confirm an agree
ment with the Muscogee or Creek tribe of Indians, and for other purposes,"
approved March first, nineteen hundred and one, and if any such child has died
since the twenty-fifth day of May, nineteen hundred and one, or may hereafter
die, before receiving his allotment of land and distributive share of the funds of
the tribe, the lands and moneys to which he would be entitled if living shall de
scend to his heirs and be allotted and distributed to them accordingly : And pro
vided further, That the act entitled "An act to ratify and confirm an agreement
with the Muscogee or Creek tribe of Indians, and for other purposes," approved
March first, nineteen hundred and one, in so far as it provides for descent and
52 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
distribution according to the laws of the Creek Nation, is hereby repealed, and
the descent and distribution of lands and moneys provided for in said act shall
be in accordance with the provisions of chapter forty-nine of Mansfield's Digest
of the Statutes of Arkansas in force in Indian Territory.
For expenses of commissioners and necessary expenses of employees, and three
dollars per diem for expenses of a clerk detailed as special disbursing agent by
the Interior Department while on duty with the Commission, shall be paid there
from, for clerical help, including secretary of the Commission and interpreters
(act of March third, nineteen hundred and one, volume thirty-one, page one
thousand and seventy-four, section one), ninety three thousand dollars; con
tingent expenses of the Commission (same act), two thousand dollars: Provided
further, That this appropriation may be used by said Commission in the prosecu
tion of all work to be done by or under its direction as required by- law ;• and
said commissioners shall at once make an itemized statement to the Secretary
of the Interior of all their expenditures up to January first, nineteen hundred
and one, and annually thereafter: And provided further, That not to exceed ten
thousand four hundred dollars of the above amount may be used in the tem
porary employment in the office of the Commissioner of Indian Affairs of three
clerks, at the rate of one thousand six hundred dollars per annum ; one clerk,
Ait the rate of one thousand four hundred dollars, and one clerk at the rate of one
thousand two hundred dollars, who shall be competent to examine records in dis
puted citizenship cases and law contests growing out of the work of said Com
mission, and in the temporary employment in said office of three competent
stenographers, at the rate of one thousand dollars each per annum.
To pay all expenses incident to the survey, platting, and appraisement of
town sites in the Choctaw, Chickasaw, Creek, and Cherokee nations, Indian Ter
ritory, as required by sections fifteen and twenty-nine of an act entitled "An
act for the protection of the people of the Indian Territory, and for other pur
poses," approved June twenty-eighth, eighteen hundred and ninety-eight, and all
acts amendatory thereof or supplemental thereto, fifty thousand dollars : J'ro-
vided, That hereafter the Secretary of the Interior may, whenever the chief
executive of the Choctaw or Chickasaw nations fails or refuses to appoint a
town-site commissioner for any town, or to fill any vacancy caused by the neglect
or refusal of the town-site commissioner appointed by the chief executive of the
Choctaw or Chickasaw nations to qualify or act, in his discretion, appoint a
commissioner to fill the vacancy thus created : Provided further, That the limits
of such towns in the Cherokee, Choctaw, and Chickasaw nations having a popu
lation of less than two hundred people, as in the judgment of the Secretary of
the Interior should be established, shall be defined as early as practicable by the
Secretary of the Interior in the same manner as provided for towns having
over two hundred people under existing law, and the same shall not be subject
to allotment. That the land so segregated and reserved from allotment shall be
disposed of, in such manner as the Secretary of the Interior may direct, by a
town-site commission, one member to be appointed by the Secretary of the
Interior and one by the executive of the nation in which such land is located ;
proceeds arising from the disposition of such lands to be applied in like manner
as the proceeds of other lands in town sites.
For the purpose of removing intruders and placing allottees in unrestricted
possession of their allotments, to be expended under the direction of the Secre
tary of the Interior and to be immediately available, fifteen thousand dollars ;
in all, one hundred and sixty thousand dollars : Provided, Jwivevcr, That it shall
hereafter be unlawful to remove or deport any person from the Indian Territory
who is in lawful possession of any lots or parcels of land in any town or city in
the Indian Territory which has been designated as a town site under existing
laws and treaties, and no part of this appropriation shall be used for the depor
tation or removal of any such person from the Indian Territory : Provided, That
the just and reasonable share of each member of the Chickasaw, Choctaw,
Creek, and Cherokee nations of Indians, in the lands belonging to the said tribes,
which each member is entitled to hold in his possession until allotments are
made, as provided in the act entitled "An act for the protection of the people
of the Indian Territory, and for other purposes," approved June twenty-eighth,
eighteen hundred and ninety-eight, be, and the same is hereby, declared to be
three hundred and twenty acres for each member of the Chickasaw Nation, three
hundred and twenty acres for each member of the Choctaw Nation, one hundred
and sixty acres for each member of the Creek Nation, and one hundred acres
for each member of the Cherokee Nation.
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 53
[Supplemental Creek agreement (32 Stat. L., 500).]
AN ACT To ratify and confirm a supplemental agreement with the Creek tribe of Indians,
and for other purposes.0
Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled, That the following supplemental agreement,
submitted by certain commissioners of the Creek tribe of Indians, as herein
amended, is hereby ratified and confirmed on the part of the United States,
and the same shall be of full force and effect if ratified by the Creek tribal
council on or before the first day of September, nineteen hundred and two,
which said supplemental agreement is as follows :
This agreement by and between the United States, entered into in its behalf
by the Commission to the Five Civilized Tribes, Henry L. Dawes, Tarns Bixby,
Thomas B. Needles, and Clifton R. Breckenridge, duly appointed and authorized
thereunto, and the Muskogee (or Creek) tribe of Indians, in Indian Territory,
entered into in behalf of the said tribe by Pleasant Porter, principal chief, Roley
Mclntosh, Thomas W. Perry man, Amos Mclntosh, and David M. Hodge, com
missioners duly appointed and authorized thereunto, witnesseth, that in con
sideration of the mutual undertakings herein contained, it is agreed as follows :
DEFINITIONS.
The words " Creek " and " Muskogee " as used in this agreement shall be
deemed synonymous, and the words " nation " and " tribe " shall each be deemed
to refer to the Muskogee Nation or Muskogee tribe of Indians in Indian Terri
tory- The words " principal chief " shall be deemed to refer to the principal
chief of the Muskogee Nation. The words " citizen " or " citizens " shall be
deemed to refer to a member or members of the Muskogee tribe or nation of
Indians. The word " Commissioner " shall be deemed to refer to the United
States Commission to the Five Civilized Tribes.
ALLOTMENT OF LANDS.
2. Section 2 of the agreement ratified by act of Congress approved March, 1901
(31 Stat. L., 8C1), is amended and as so amended is reenacted to read as follows :
All lands belonging to the Creek tribe of Indians in Indian Territory, except
town sites and lands reserved for Creek schools and churches, railroads, and
town cemeteries, in accordance with the provisions of the act of Congress
approved March 1, 1901 (31 Stat. L., 801), shall be appraised at not to exceed
$<>..r>0 per acre, excluding only lawful improvements on lauds in actual cultiva
tion.
Such appraisement shall be made, under the direction and supervision of the
Commission to the Five Civilized Tribes, by such number of committees with
necessary assistance as may be deemed necessary to expedite the work, one
member of each committee to be appointed by the principal chief. Said Com
mission shall have authority to revise and adjust the work of said committees;
and if the members of any committee fail to agree as to the value of any tract
of land, the value thereof shall be fixed by said Commission. The appraise
ment so made shall be submitted to the Secretary of the Interior for approval.
3. Paragraph 2 of section 3 of the agreement ratified by said act of Congress
approved March 1, 1901, is amended and as so amended is reenacted to read as
follows :
If any citizen select lands the appraised value of which is $f>.50 per acre, he
shall not receive any further distribution of property or funds of the tribe until
all other citizens have received lands and moneys equal in value to his allotment.
4. Exclusive jurisdiction is hereby conferred upon the Commission to the Five
Civilized tribes to determine, under the direction of the Secretary of the Inte
rior, all controversies arising between citizens as to their right to select certain
tracts of land.
5. Where it is shown to the satisfaction of said Commission that it was the
intention of a citizen to select lands which include his home and Improvements,
but that through error and mistake he had selected land which did not include
said home and improvements, said Commission is authorized to cancel said
0 This agreement was ratified by the Creek council July 26, 1902. President's procla
mation issued August 8, 1902.
54 LAWS AFFECTING THE FTVE CIVILIZED TRIBES.
selection and the certificate of selection or allotment embracing said lands,
and permit said citizen to make a new selection including said borne and
improvements; and should said land including said borne and improvements
have been selected by any other citizen of said nation, the citizen owning said
Lome and improvements shall be permitted to file, within ninety days from the
ratification of this agreement, a contest against the citizen having previously
selected the same, and shall not be prejudiced therein by reason of lapse of
time or any provision of law or rules and regulations to the contrary.
DESCENT AND DISTRIBUTION.
G. The provisions of the act of Congress approved March 1, 1901 (31 Stat L.,
801 ), in so far as they provide for descent and distribution according to the laws
of the Creek Nation, are hereby repealed, and the descent and distribution of
land and money provided for by said act shall be in accordance with chapter
49 of Mansfield's Digest of the Statutes of Arkansas now in force in Indian
Territory : Provided, That only citizens of the Creek Nation, male and female,
and their Creek descendants shall inherit lands of the Creek Nation: And pro
vided further, That if there be no person of Creek citizenship to take the descent
and distribution of said estate then the inheritance shall go to noncitizen heirs
in the order named in said chapter 49.
ROLLS OF CITIZENSHIP.
7. All children born to those citizens who are entitled to enrollment, as pro
vided by the act of Congress approved March 1, 1901 (31 Stat. L., 801), subse
quent to July 1, 1900, and up to and including May 25, 1901, and living upon the
latter date, shall be placed on the rolls made by said Commission. And if any
such child has died since May 25, 1901, or may hereafter die before receiving
his allotment of lands and distributive share of the funds of the tribe, the lands
and moneys to which he would be entitled if living shall descend to his heirs
as herein provided and be allotted and distributed to them accordingly.
8. All children who have not heretofore been listed for enrollment living May
25, 1901, born to citizens whose names appear upon the authenticated rolls of
1890 or upon the authenticated rolls of 1895. and entitled to enrollment as pro
vided by the act of Congress approved March 1, 1901 (31 Stat L., 801), shall
be placed on the rolls made by said Commission. And if any such child has
died since May 25, 1901, or may hereafter die before receiving his allotment
of lands and distributive share of the funds of the tribe, the lands and moneys
to which he would be entitled if living shall descend to his heirs as herein pro
vided and be allotted and distributed to them accordingly.
9. If the rolls of citizenship provided for by the act of Congress approved
March 1, 1901 (31 Stat L., 801), shall have been completed by said Commission
prior to the ratification of this agreement, the names of children entitled to
enrollment under the provisions of sections 7 and 8 hereof shall be placed upon
a supplemental roll of citizens of the Creek Nation, and said supplemental roll,
when approved by the Secretary of the Interior, shall in all respects be held to
be a part of the final rolls of citizenship of said tribe: Provided, That the
Dawes Commission be, and is hereby, authorized to add the following persons
to the Creek roll: Nar-wal-le-pe-es, Mary Washington, Walter Washington, and
Willie Washington, who are Creek Indians, but whose names were left off the
roll through neglect on their part.
ROADS.
10. Public highways or roads 3 rods in width, being one and one-half rods on
each side of the section line, may be established along all section lines without
any compensation being paid therefor ; and all allottees, purchasers, and others
shall take the title to such lands subject to this provision. And public high
ways or roads may be established elsewhere whenever necessary for the public
good, the actual value of the land taken elsewhere than along section lines to
be determined under the direction of the Secretary of the Interior while the
tribal government continues, and to be paid by the Creek Nation during that
time ; and if buildings or other improvements are damaged in consequence of
the establishment of such public highways or roads, whether along section lines
or elsewhere, such damages, during the continuance of the tribal government,
shall be determined and paid in the same manner.
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 55
11. In all instances of the establishment of town sites in accordance with the
provisions of the act of Congress approved May 31, 1900 (31 Stat. L., 231), or
those of section 10 of the agreement ratified by act of Congress approved March
1, 1901 (31 Stat. L., 861), authorizing the Secretary of the Interior, upon the
recommendation of the Commission to the Five Civilized Tribes, at any time
before allotment, to set aside and reserve from allotment any lands in the
Creek Nation, not exceeding 1GO acres in any one tract, at such stations as are
or shall be established in conformity with law on the line of any railroad
which shall be constructed, or be in process of construction, in or through said
nation prior to the allotment of lands therein, any citizen who shall have pre
viously selected such town site, or any portion thereof, for his allotment, or
who shall have, been by reason of improvements therein entitled to select the
same for his allotment, shall be paid by the Creek Nation the full value of his
improvements thereon at the time of the establishment of the town site, under
rules and regulations to be prescribed by the Secretary of the Interior: Pro
vided, Jioircrcr, That such citizens may purchase any of said lands in accord
ance with the provisions of the act of March 1, 1901 (31 Stat. L., 61) : And
provided furtlicr. That the lands which may hereafter be set aside and reserved
for town sites upon recommendation of the Dawes Commission as herein pro
vided shall embrace such acreage as may be necessary for the present needs
and reasonable prospective growth of such town sites, and not to exceed 040
acres for each town site, and 10 per cent of the net proceeds arising from the
sale of that portion of the land within the town site so selected by him, or
which he was so entitled to select; and this shall be in addition to his right to
receive from other lands an allotment of 1GO acres.
CEMETERIES.
12. A cemetery other than a town cemetery included within the* boundaries of
an allotment shall not be desecrated by tillage or otherwise, but no interment
shall be made therein except with the consent of the allottee, and any person
desecrating by tillage or otherwise a grave or graves in a cemetery included
within the boundaries of an allotment shall be guilty of a misdemeanor, and
upon conviction be punished as provided in section 5G7 of Mansfield's Digest of
the Statutes of Arkansas.
13. Whenever the town-site surveyors of any town in the Creek Nation shall
have selected and located a cemetery as provided in section 18 of the act of Con
gress approved March 1, 1901 (31 Stat. L., 861), the town authorities shall not be
authorized to dispose of lots in such cemetery until payment shall have been
made to the Creek Nation for land used for said cemetery as provided in said
act of Congress; and if the town authorities fail or refuse to make payment as
aforesaid within one year of the approval of the plat of said cemetery by the
Secretary of the Interior, the land so reserved shall revert to the Creek Nation
and be subject to allotment. And for lands heretofore or hereafter designated
as parks upon any plat or any town site, the town shall make payment into the
Treasury of the United. States to the credit of the Creek Nation within one year
at the rate of $20 per acre ; and if such payment be not made within that time,
the lands so designated as a park shall be platted into lots and sold as other
town lots.
MISCELLANEOUS.
14. All funds of the Creek Nation not needed for equalization of allotments,
including the Creek school fund, shall be paid out, under direction of the Secre
tary of the Interior, per capita to the citizens of the Creek Nation on the disso
lution of the Creek tribal government.
15. The provisions of section 24 of the act of Congress approved March 1, 1901
(31 Stat. L., 861), for the reservation of land for the six established Creek court
houses is hereby repealed.
16. Lands allotted to citizens shall not in any manner whatever, or at any
time, be encumbered, taken, or sold to secure or satisfy any debt or obligation
nor be alienated by the allottee or his heirs before the expiration of five years
from the date of the approval of this supplemental agreement, except with the
approval of the Secretary of the Interior. Each citizen shall select from his
allotment forty acres of land, or a quarter of a quarter section, as a homestead,
which shall be and remain nontaxable, inalienable, and free from any incum-
braiice whatever for tweiity-oiie years from the date of the deed therefor, and a
56 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
separate deed shall be issued to each allottee for his homestead, in which this
condition shall appear.
Selections of homesteads for minors, prisoners, convicts, incompetents, and
aged and infirm persons, who can not select for themselves, may be made in the
manner provided for the selection of their allotments, and if for any reason
such selection be not made for any citizen it shall be the duty of said Commis
sion to make selection for him. The homestead of each citizen shall remain,
after the death of the allottee, for the use and support of children born to him
after May 25, 1901, but if he have no such issue then he may dispose of his home
stead by will, free from the limitation herein imposed, and if this be not done
the land embraced in his homestead shall descend to his heirs, free from such
limitation, according to the laws of descent herein otherwise prescribed. Any
agreement or conveyance of any kind or character violative of any of the pro
visions of this paragraph shall be absolutely void and not susceptible of rati
fication in any manner, and no rule of estoppel shall ever prevent the assertion
of its invalidity.
17. Section ^>7 of the agreement ratified by said act of March 1, 1901, is
amended, and as so amended is reenacted to read as follows :
Creek citizens may rent their allotments, for strictly nonmineral purposes, for a term
not to exceed one year for grazing purposes only and for a period not to exceed h've years
for agricultural purposes, but without any stipulation or obligation to renew the same.
Such leases for a period longer than one year for grazing purposes and for a period longer
than five years for agricultural purposes, and leases for mineral purposes may also be
made with the approval of the Secretary of the Interior, and not otherwise. Any agree
ment or lease of any kind or character violative of this paragraph shall be absolutely void
and not susceptible of ratification in any manner, and no rule of estoppel shall ever pre
vent the assertion of its invalidity. Cattle grazed upon leased allotments shall not be
liable to any tribal tax, but when cattle are introduced into the Creek Nation and grazed
on lands not selected for allotment by citizens, the Secretary of the Interior shall collect
from the owners thereof a reasonable grazing tax for the benefit of the tribe, and section
2117 of the Revised Statutes of the United States shall not hereafter apply to Creek lands.
18. When cattle are introduced into the Creek Nation to be grazed upon either
lands not selected for allotment or upon lands allotted or selected for allotment
the owner thereof, or the party or parties so introducing the same, shall first
obtain a permit from the United States Indian agent, Union Agency, authorizing
the introduction of such cattle. The application for said permit shall state the
number of cattle to be introduced, together with a description of the same, and
shall specify the lands upon which said cattle are to be grazed, and whether or
not said lands have been selected for allotment. Cattle so introduced and all
other live stock owned or controlled by noncitizens of the nation shall be kept
upon inclosed lands, and if any such cattle or other live stock trespass upon
lands allotted to or selected for allotment by any citizen of said nation, the
owner thereof shall, for the first trespass, make reparation to the party injured
for the true value of the damages he may have sustained, and for every trespass
thereafter double damages, to be recovered with costs, whether the land upon
which trespass is made is inclosed or not.
Any person who shall introduce any cattle into the Creek Nation in violation
of the provisions of this section shall be deemed guilty of a misdemeanor and
punished by a fine of not less than $100, and shall stand committed until such
fine and costs are paid, such commitment not to exceed one day for every $2 of
said fine and costs ; and every day said cattle are permitted to remain in said
nation without a permit for their introduction having been obtained shall con
stitute a separate offense.
19. Section 8 of the agreement ratified by said act of March 1, 1901, is
amended, and as so amended is reenacted to read as follows:
The Secretary of the Interior shall, through the United States Indian agent in said
Territory, immediately after the ratification of this agreement, put each citizen who has
made selection of his allotment in unrestricted possession of bis land and remove there
from all persons objectionable to him ; and when any citizen shall thereafter make
selection of his allotment as herein provided and receive certificate therefor, he shall be
immediately thereupon so placed in possession of his land, and during the continuance
of the tribal government the Secretary of the Interior, through such Indian agent, shall
protect the allottee in his right to possession against any and all persons claiming under
any lease, agreement, or conveyance not obtained in conformity to law.
20. This agreement is intended to modify and supplement the agreement rati
fied by said act of Congress approved March 1, 1901, and shall be held to repeal
any provision in that agreement or in any prior agreement, treaty, or law in
conflict herewith.
21. This agreement shall be binding upon the United States and the Creek
Nation and upon all persons affected thereby when it shall have been ratified by
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 57
Congress and the Creek national council, and the fact of such ratification shall
have been proclaimed as hereinafter provided.
22. The principal chief, as soon as practicable after the ratification of this
agreement by Congress, shall call an extra session of the Creek Nation council
and submit this agreement, as ratified by Congress, to such council for its con
sideration, and if the agreement be ratified by the national council, as provided
in the constitution of the tribe, the principal chief shall transmit to the Presi
dent of the United States a certified copy of the act of the council ratifying the
agreement, and thereupon the President shall issue his proclamation making
public announcement of such ratification. Thenceforward all the provisions of
this agreement shall have the force and effect of law.
Approved, June 30, 1902.
[C'hoctaw and Chickasaw agreement (32 Stat. L., 641).]
AN ACT To ratify and confirm an agreement with the Choctaw and Chickasaw tribes of
Indians, and for other purposes."
Be it enacted l>y the Senate and House of Representatives of the United States
of America in Congress assembled, That the following agreement, made by the
Commission 'to the Five Civilized Tribes with the commissions representing the
Choctaw and Chickasaw tribes of Indians on the twenty-first day of March,
nineteen hundred and two, be, and the same is hereby, ratified and confirmed,
to wit :
AGREEMENT BETWEEN THE UNITED STATES AND THE CHOCTAWS AND CHICKASAWS.
This agreement, by and between the United States, entered into in its behalf
by Henry L. Dawes, Tarns Bixby, Thomas B. Needles, and Clifton R. Breckin-
ridge, commissioners duly appointed and authorized thereunto, and the Choctaw
and Chickasaw tribes of Indians in Indian Territory, respectively, entered into
in behalf of such Choctaw and Chickasaw tribes by Gilbert W. Dukes, Green
McCurtain, Thomas E. Sanguin, and Simon E. Lewis in behalf of the Choctaw
tribe of Indians; and Douglas II. Johnston, Calvin J. Grant, Holmes Willis,
Edward B. Johnson, and Benjamin H. Colbert in behalf of the Chickasaw tribe
of Indians, commissioners duly appointed and authorized thereunto —
Witnesseth that, in consideration of the mutual undertakings herein con
tained, it is agreed as follows :
DEFINITIONS.
1. Wherever used in this agreement the words "nations" and "tribes" shall
each be held to mean the Choctaw and Chickasaw nations or tribes of Indians
in Indian Territory.
2. The words " chief executives " shall be held to mean the principal chief of
the Choctaw Nation a.nd the governor of the Chickasaw Nation.
3. The words " member " or " members " and " citizen " or " citizens " shall be
held to mean members or citizens of the Choctaw or Chickasaw tribe of Indians
in Indian Territory, not including freedmen.
4. The term "Atoka agreement " shall be held to mean the agreement made by
the Commission to the Five Civilized Tribes with the commissioners represent
ing the Choctaw and Chickasaw tribes of Indians at Atoka, Indian Territory,
and embodied in the act of Congress approved June twenty-eighth, eighteen
hundred and ninety-eight. (30 Stats., 495.)
5. The word " minor " shall be held to mean males under the age of twenty-
one years and females under the age of eighteen years.
0. The word " select " and its various modifications, as applied to allotments
and homesteads, shall be held to mean the formal application at the land office,
to be established by the Commission to the Five Civilized Tribes for the Choc
taw and Chickasaw nations, for particular tracts of land.
7. Every word in this agreement importing the masculine gender may extend
and be applied to females as well as males, and the use of the plural may include
also the singular, and vice versa.
8. The terms " allottable lands " or " lands allottable " shall be deemed to
mean all the lands of the Choctaw and Chickasaw tribes not herein reserved
from allotment.
" This agreement was ratified by the Choctaw and Chickasaw nations at an election
held September 25, 1902.
58 LAWS AFFECTING THE FIVE CIVILIZED TKIBES.
APPRAISEMENT OF LANDS.
9. All lands belonging to the Choctaw and Chickasaw tribes in the Indian
Territory, except such as are herein reserved from allotment, shall be appraised
at their true value: Provided, That in determining such value consideration
shall not be given to the location thereof, to any mineral deposits, or to any tim
ber except such pine timber as may have been heretofore estimated by the Com
mission to the Five Civilized Tribes, and without reference to improvements
which may be located thereon.
10. The appraisement as herein provided shall be made by the Commission to
the Five Civilized Tribes, and the Choctaw and Chickasaw tribes shall each have
a representative, to be appointed by the respective executives, to cooperate with
the said Commission.
ALLOTMENT OF LANDS.
11. There shall be allotted to each member of the Choctaw and Chickasaw
tribes as soon as practicable after the approval by the Secretary of the Interior
of his enrollment as herein provided, land equal in value to three hundred and
twenty acres of the average allottable land of the Choctaw and Chickasaw
nations, and to each Choctaw and Chickasaw freedman, as soon as practicable
after the approval by the Secretary of the Interior of his enrollment, land equal
in value to forty acres of the average allottable land of the Choctaw and
Chickasaw nations ; to conform, as nearly as may be, to the areas and bound
aries established by the Government survey, which land may be selected by each
allottee so as to include his improvements. For the purpose of making allotments
and designating homesteads hereunder, the forty-acre or quarter-quarter sub
divisions established by the Government survey may be dealt with as if further
subdivided into four equal parts in the usual manner, thus making the smallest
legal subdivision ten acres, or a quarter of a quarter of a quarter of a section.
12. Each member of said tribes shall, at the time of the selection of his allot
ment, designate as a homestead out of said allotment land equal in value to one
hundred and sixty acres of the average allottable land of the Choctaw and
Chickasaw nations, as nearly as may be, which shall be inalienable during the
lifetime of the allottee, not exceeding twenty-one years from the date of certifi
cate of allotment, and separate certificate and patent shall issue for said home
stead.
13. The allotment of each Choctaw and Chickasaw freedman shall be inalien
able during the lifetime of the allottee, not exceeding twenty-one years from
the date of certificate of allotment.
14. When allotments as herein provided have been made to all citizens and
freedmen, the residue of lands not herein reserved or otherwise disposed of, if
any there be, shall be sold at public auction under rules and regulations and on
terms to be prescribed by the Secretary of the Interior, and so much of the pro
ceeds as may be necessary for equalizing allotments shall be used for that pur
pose, and the balance shall be paid into the Treasury of t4ie United States to the
credit of the Choctaws and Chickasaws and distributed per capita as other funds
of the tribes.
15. Lands allotted to members and freedmen shall not be affected or encum
bered by any deed, debt, or obligation of any character contracted prior to the
time at which said land may be alienated under this act, nor shall said lands be
sold except as herein provided.
16. All lands allotted to the members of said tribes, except such land as is set
aside to each for a homestead as herein provided, shall be alienable after issu
ance of patent as follows : One-fourth in acreage in one year, one-fourth in acre
age in three years, and the balance in five years; in each case from date of
patent: Provided, That such land shall not be alienable by the allottee or his
heirs at any time before the expiration of the Choctaw and Chickasaw tribal
governments for less than its appraised value.
17. If for any reason an allotment should not be selected or a homestead desig
nated by, or on behalf of, any member or freedman, it shall be the duty of said
Commission to make said selection and designation.
18. In the making of allotments and in the designation of homesteads for
members of said tribes, under the provisions of this agreement, said Commission
shall not be required to divide lands into tracts of less than the smallest legal
subdivision provided for in paragraph eleven hereof.
19. It shall be unlawful after ninety days after the date of the final ratifica
tion of this agreement for any member of the Choctaw or Chickasaw tribes to
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 59
enclose or hold possession of in any manner, by himself or through another,
directly or indirectly, more lands in value than that of three hundred and twenty
acres of average allottahle lands of the Choctaw and Chickasaw nations, as pro
vided by the terms of this agreement, either for himself or for his wife, or for
each of his minor children, if members of said tribes ; and any member of said
tribes found in such possession of lands, or having the same in any manner
enclosed after the expiration of ninety days after the date of the final ratification
of this agreement, shall be deemed guilty of a misdemeanor.
20. It shall be unlawful after ninety days after the date of the final ratifica
tion of this agreement for any Choctaw or Chickasaw freedman to enclose or
hold possession of in any manner, by himself or through another, directly or indi
rectly, more than so much land as shall be equal in value to forty acres of the
average allottable lands of the Choctaw and Chickasaw tribes as provided by the
terms of this agreement, either for himself or for his wife, or for each of his
minor children, jf they be Choctaw or Chickasaw freedmen ; and any freedman
found in such possession of lands, or having the same in any manner enclosed
after the expiration of ninety days after the date of the final ratification of this
agreement, shall be deemed guilty of a misdemeanor.
21. Any person convicted of violating any of the provisions of sections 19
and 20 of this agreement shall be punished by a fine not less than one hundred
dollars, and shall stand committed until such fine and costs are paid (such com
mitment not to exceed one day for every two dollars of said fine and costs), and
shall forfeit possession of any property in question, and each day on which such
offense is committed or continues to exist shall be deemed a separate offense.
And the United States district attorneys for the districts in which said nations
are situated are required to see that the provisions of said sections are strictly
enforced, and they shall immediately after the expiration of ninety days after
the date of the final ratification of this agreement proceed to dispossess all per
sons of such excessive holdings of lands, and to prosecute them for so unlawfully
holding the same. And the Commission to the Five Civilized Tribes shall have
authority to make investigation of all violations of sections 10 and 20 of this
agreement, and make report thereon to the United States district attorneys.
22. If any person whose name appears upon the rolls, prepared as herein pro
vided, shall have died subsequent to the ratification of this agreement and before
receiving his allotment of land, the lands to which such person would have been
entitled if living shall be allotted in his name, and shall, together with his pro
portionate share of other tribal property, descend to his heirs according, to the
laws of descent and distribution as provided in chapter forty-nine of Mansfield's
Digest of the Statutes of Arkansas : Provided, That the allotment thus to be
made shall be selected by a duly appointed administrator or executor. If, how
ever, such administrator or executor be not duly and expeditiously appointed, or
fails to act promptly when appointed, or for any other cause such selection be
not so made within a reasonable and practicable time, the Commission to the
Five Civilized Tribes shall designate the lands thus to be allotted.
23. Allotment certificates issued by the Commission to the Five Civilized
Tribes shall be conclusive evidence of the right of any allottee to the tract of
land described therein ; and the United States Indian agent at the Union Agency
Khali, upon the application of the allottee, place him in possession of his allot
ment, and shall remove therefrom all persons objectionable to such allottee,
and the acts of the Indian agent hereunder shall not be controlled by the writ
or process of any court.
24. Exclusive jurisdiction is hereby conferred upon the Commission to the
Five Civilized Tribes to determine, under the direction of the Secretary of the
Interior, all matters relating to the allotment of land.
EXCESSIVE HOLDINGS.
25. After the opening of a land office for allotment purposes in both the Choc
taw and the Chickasaw nations any citizen or freedman of either of said nations
may appear before the Commission to the Five Civilized Tribes at the land
office in the nation in which his land is located and make application for his
allotment and for allotments for members of his family and for other persons
for whom he is lawfully authorized to apply for allotments, including home
steads, and after the expiration of ninety days following the opening of such
land offices any such applicant may make allegation that the land or any part
of the land that he desires to have allotted is held by another citizen or person
in excess of the amount of land to which said citizen or person is lawfully
60 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
entitled, and that he desires to have said land allotted to him or members of
his family as herein provided; and thereupon said Commission shall serve
notice upon the person so alleged to be holding land in excess of the lawful
amount to which he may be entitled, said notice to set forth the facts alleged
and the name and post-office address of the person alleging the same, and the
rights and consequences herein provided, and the person so alleged to be holding
land contrary to law shall be allowed thirty days from the date of the service
of said notice in which to appear at one of said land offices and to select his
allotment and the allotments he may be lawfully authorized to select, including
homesteads: and if at the end of the thirty days last provided for the person
upon whom said notice has been served has not selected his allotment and
allotments as provided, then the Commission to the Five Civilized Tribes shall
immediately make or reserve said allotments for the person or persons wrho have
failed to act in accordance with the notice aforesaid, having due regard for the
best interest of said allottees ; and after such allotments have been made or
reserved by said Commission, then all other lands held or claimed, or previously
held or claimed by said person or persons, shall be deemed a part of the public
domain of the Choctaw and Chickasaw nations and be subject to disposition as
such : Provided, That any persons who have previously applied for any part of
said lands shall have a prior right of allotment of the same in the order of
their applications and as their lawful rights may appear.
If any citizen or freedman of the Choctaw and Chickasaw nations shall not
have selected his allotment within twelve months after the date of the opening
of said land offices in said nations, if not herein otherwise provided, and provided
that twelve months shall have elapsed from the date of the approval of his
enrollment by the Secretary of the Interior, then the Commission to the Five
Civilized Tribes may immediately proceed to select an allotment, including a
homestead for such person, said allotment and homestead to be selected as the
Commission may deem for the best interest of said person, and the same shall
be of the same force and effect as if such selection had been made by such citi
zen or freedman in person, and all lands held or claimed by persons for whom
allotments have been selected by the Commission as provided, and in excess of
the amount included in said allotments, shall be a part of the public domain of-
the Choctaw and Chickasaw nations and be subject to disposition as such.
RESERVATIONS.
2f>. The following lands shall be reserved from the allotment of lands herein
provided for :
(a) All lands set apart for town sites either by the terms of the Atoka agree
ment, the act of Congress of May 31, 1900 (31 Stats., 221), as herein assented
to, or by the terms of this agreement.
(b) All lands to which, at the date of the final ratification of this agreement,
any railroad company may under any treaty or act of Congress have a vested
right for right of way, depots, station grounds, water stations, stock yards, or
similar uses connected with the maintenance and operation of the railroad.
(c) The si rip of land lying between the city of Fort Smith, Arkansas, and the
Arkansas and Poteau rivers, extending up the said Poteau River to the mouth of
Mill Creek.
(d) All lands which shall be segregated and reserved by the Secretary of the
Interior on account of their coal or asphalt deposits, as hereinafter provided.
And the lands selected by the Secretary of the Interior at and in the vicinity
of Sulphur, in the Chickasaw Nation, under the cession to the United States
hereunder made by said tribes.
(e) One hundred and sixty acres for Jones' Academy.
(f) One hundred and sixty acres for Tuskahoma Female Seminary.
(g) One hundred and sixty acres for Wheelock Orphan Seminary,
(h) One hundred and sixty acres for Armstrong Orphan Academy.
(i) Five acres for capitol building of the Choctaw Nation.
(j) One hundred and sixty acres for Bloomfield Academy.
(k) One hundred and sixty acres for Lebanon Orphan Home.
(1) One hundred and sixty acres for Harley Institute.
(m) One hundred and sixty acres for Rock Academy.
(n) One hundred and sixty acres for Collins Institute.
(o) Five acres for the capitol building of the Chickasaw Nation.
(p) Eighty acres for J. S. Murrow.
(q) Eighty acres for H. R. Schermerhorn.
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 61
(r) Eighty acres for the widow of R. S. Bell.
(s) A reasonable amount of land, to be determined by the town-site commis
sioners, to include all tribal court-houses and jails and other tribal public build
ings.
(t) Five acres for any cemetery located by the town-site commissioners prior
to the date of the final ratification of this agreement.
(u) One acre for any church under the control of and used exclusively by the
Choctaw or Chickasaw citizens at the date of the final ratification of this agree
ment.
(v) One acre each for all Choctaw or Chickasaw schools under the super
vision of the authorities of the Choctaw or Chickasaw nations and officials of
the United States.
And the acre so reserved for any church or school in any quarter section of
land shall be located when practicable in a corner of such quarter section lying
adjacent to the section line thereof.
ROLLS OF CITIZENSHIP.
27. The rolls of the Choctaw and Chickasaw citizens and Choctaw and Chick
asaw freedmen shall be made by the Commission to the Five Civilized Tribes,
in strict compliance with the act of Congress approved June 28, 1898 (30 Stats.,
495), and the act of Congress approved May 31, 1900 (31 Stats., 221), except as
herein otherwise provided: Provided, That 110 person claiming right to enroll
ment and allotment and distribution of tribal property, by virtue of a judgment
of the United States court in the Indian Territory under the act of June 10,
189(5 (29 Stats., 321), and which right is contested by legal proceedings insti
tuted under the provisions of this agreement, shall be enrolled or receive allot
ment of lands or distribution of tribal property until his right thereto has been
finally determined.
28. The names of all persons living on the date of the final ratification of this
agreement entitled to be enrolled as provided in section 27 hereof shall be placed
upon the rolls made by said Commission ; and no child born thereafter to a
citizen or freedman and no person intermarried thereafter to a citizen shall be
entitled to enrollment or to participate in the distribution of the tribal property
of the Choctaws and Chickasaws.
29. No person whose name appears upon the rolls made by the Commission to
the Five Civilized Tribes as a citizen or freedman of any other tribe shall be
enrolled as a citizen or freedman of the Choctaw or Chickasaw nations.
30. For the purpose of expediting the enrollment of the Choctaw and Chicka
saw citizens and the Choctaw and Chickasaw freedmen, the said Commission
Fhall, from time to time, and as early as practicable, forward to the Secretary
of the Interior lists upon which shall be placed names of those persons found
by the Commission to be entitled to enrollment. The lists thus prepared, when
approved by the Secretary of the Interior, shall constitute a part and parcel of
the final rolls of citizens of the Choctaw and Chickasaw tribes and of Choctaw
and Chickasaw freedmen, upon which allotment of land and distribution of other
tribal property shall be made as herein provided. Lists shall be made up and
forwarded when contests of whatever character shall have been determined,
and when there shall have been submitted to and approved by the Secretary of
the Interior lists embracing names of all those lawfully entitled to enrollment,
the rolls shall be deemed complete. The rolls so prepared shall be made in
quintuplicate, one to be deposited with the Secretary of the Interior, one with
the Commissioner of Indian Affairs, one with the principal chief of the Choctaw
Nation, one with the governor of the Chickasaw Nation, and one to remain
with the Commission to the Five Civilized Tribes.
31. It being claimed and insisted by the Choctaw and Chickasaw nations that
the United States courts in the Indian Territory, acting under the act of Con
gress approved June 10, 189(5, have admitted persons to citizenship or to enroll
ment as such citizens in the Choctaw and Chickasaw nations, respectively, with
out notice of the proceedings in such courts being given to each of said nations ;
and it being insisted by said nations that, in such proceedings, notice to each
of said nations was indispensable, and it being claimed and insisted by said
nations that the proceedings in the United States courts in the Indian Territory,
under the said act of June 10, 189G, 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 such Commission, and should not have extended to a
trial de novo of the question of citizenship; and it being desirable to finally
62 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
determine these questions, the two nations jointly, or either of said nations
acting separately and making the other a party defendant, may, within ninety
days after this agreement becomes effective, by a bill in equity filed in the
Choctaw and Chickasaw citizenship court hereinafter named, seek the annul
ment and vacation of all such decisions by said courts. Ten persons so ad
mitted to citizenship or enrollment by said courts, with notice to one, but not
to both of said nations, shall be made defendants to said suit as representatives
of the entire class of persons similarly situated, the number of such persons
being too numerous to require all of them to be made individual parties to the
suit ; but any person so situated may, upon his application, be made a party
defendant to the suit. Notice of the institution of said suit shall be personally
served upon the chief executive of the defendant nation, if either nation be
made a party defendant as aforesaid, and upon each of said ten representative
defendants, and shall also be published for a period of four weeks in at least
two weekly newspapers having general circulation in the Choctaw and Chick
asaw nations. Such notice shall set forth the nature and prayer of the bill,
with the time for answering the same, which shall not be less than thirty days
after the last publication. Said suit shall be determined at the earliest prac
ticable time, shall be confined to a final determination of the questions of law
here named, and shall be without prejudice to the determination of any charge
or claim that the admission of such persons to citizenship or enrollment by
said United States courts in the Indian Territory was wrongfully obtained as
provided in the next section. In the event said citizenship judgments or de
cisions are annulled or vacated in the test suit hereinbefore authorized, because
of either or both of the irregularities claimed and insisted upon by said nations
as aforesaid, then the files, papers, and proceedings in any citizenship case in
which the judgment or decision is so annulled or vacated, shall, upon written
application therefor, made within ninety days thereafter by any party thereto,
who is thus deprived of a favorable judgment upon his claimed citizenship, be
transferred and certified to said citizenship court by the court having custody
and control of such files, papers, and proceedings, and, upon the filing in such
citizenship court of the files, papers, and proceedings in any such citizenship
case, accompanied by due proof that notice in writing of the transfer and
certification thereof has been given to the chief executive officer of each of
said nations, said citizenship case shall be docketed in said citizenship court,
and such further proceedings shall be had therein in that court as ought to
have been had in the court to which the same was taken on appeal from the
Commission to the Five Civilized Tribes, and as if no judgment or decision
had been rendered therein.
82. Said citizenship court shall also have appellate jurisdiction over all judg
ments of the courts in Indian Territory rendered under said act of Congress of
June tenth, eighteen hundred and ninety-six, admitting persons to citizenship
or to enrollment as citizens in either of said nations. The right of appeal may
be exercised by the said nations jointly or by either of them acting separately
at any time within six months after this agreement is finally ratified. In the
exercise of such appellate jurisdiction said citizenship court shall be authorized
to consider, review, and revise all such judgments, both as to findings of fact
and conclusions of law, and may, wherever in its judgment substantial justice
will thereby be subserved, permit either party to any such appeal to take and
present such further evidence as may be necessary to enable said court to
determine the very right of the controversy. And said court shall have power
to make all needful rules and regulations prescribing the manner of taking and
conducting said appeals and of taking additional evidence therein. Such citi
zenship court shall also have like appellate jurisdiction and authority over
judgments rendered by such courts under the said act denying claims to citizen
ship or to enrollment as citizens in either of said nations. Such appeals shall
be taken within the time hereinbefore specified and shall be taken, conducted,
and disposed of in the same manner as appeals by the said nations, save that
notice of appeals by citizenship claimants shall be served upon the chief
executive officer of both nations : Provided, That paragraphs thirty-one, thirty-
two, and thirty-three hereof shall go into effect immediately after the passage
of this act by Congress.
33. A court is hereby created, to be known as the Choctaw and Chickasaw
citizenship court, the existence of which shall terminate upon the final deter
mination of the suits and proceedings named in the last two preceding sections,
but in no event later than the thirty-first day of December, nineteen hundred
LAWS AFFECTING THE FIVE CIVILIZED TKIBES. 63
and three. Said court shall have all authority and power necessary to the
hearing and determination of the suits and proceedings so committed to its juris
diction, including the authority to issue and enforce all requisite writs, process,
and orders, and to prescribe rules and regulations for the transaction of its
business. It shall also have all the powers of a circuit court of the United
States in compelling the production of books, papers, and documents, the attend
ance of witnesses, and in punishing contempt. Except where herein otherwise
expressly provided, the pleading, practice, and proceedings in said court shall
conform, as near as may be, to the pleadings, practice, and proceedings in
equity causes in the circuit courts of the United States. The testimony shall be
taken in court or before one of the judges, so far as practicable. Each judge
shall be authorized to grant, in vacation or recess, interlocutory orders and to
hear and dispose of interlocutory motions not affecting the substantial merits of
the case. Said court shall have a chief judge and two associate judges, a clerk,
a stenographer, who shall be deputy clerk, and a bailiff. The judges shall be
appointed by the President, by and with the advice and consent of the Senate,
and shall each receive a compensation of five thousand dollars per annum and
his necessary and actual traveling and personal expenses while engaged in the
performance of his duties. The clerk, stenographer, and bailiff shall be
appointed by the judges, or a majority of them, and shall receive the following
yearly compensation: Clerk, two thousand four hundred dollars; stenographer,
twelve hundred dollars ; bailiff, nine hundred dollars. The compensation of all
these officers shall be paid by the United States in monthly installments. The
moneys to pay said compensation are hereby appropriated, and there is also
hereby appropriated the sum of five thousand dollars, or so much thereof as
may be necessary, to be expended under the direction of the Secretary of the
Interior, to pay such contingent expenses of said court and its officers as to
such Secretary may seem proper. Said court shall have a seal, shall sit at
such place or places in the Choctaw and Chickasaw nations as the judges may
designate, and shall hold public sessions, beginning the first Monday in each
month, so far as may be practicable or necessary. Each judge and the clerk
and deputy clerk shall be authorized to administer oaths. All writs and pro
cess issued by said court shall be served by the United States marshal for the
district in which the service is to be had. The fees for serving process and the
fees of witnesses shall be paid by the party at whose instance such process is
issued or such witnesses are subpoenaed, and the rate or amount of such fees
shall be the same as is allowed in civil causes in the circuit court of the United
States for the western district of Arkansas. No fees shall be charged by the
clerk or other officers of said court. The clerk of the United States court in
Indian Territory, having custody and control of the files, papers, and proceed
ings in the original citizenship cases, shall receive a fee of two dollars and fifty
cents for transferring and certifying to the citizenship court the files, papers,
and proceedings in each case, without regard to the number of persons whose
citizenship is involved therein, and said fee shall be paid by the person apply
ing for such transfer and certification. The judgment of the citizenship court
in any or all of the suits or proceedings so committed to its jurisdiction shall be
final. All expenses necessary to the proper conduct, on behalf of the nations, of
the suits and proceedings provided for in this and the two preceding sections
shall be incurred under the direction of the executives of the two nations, and
the Secretary of the Interior is hereby authorized, upon certificate of said exec
utives, to pay such expenses as in his judgument are reasonable and necessary
out of any of the joint funds of said nations in the Treasury of the United
States.
34. During the ninety days first following the date of the final ratification of
this agreement the Commission to the Five Civilized Tribes may receive appli
cations for enrollment only of persons whose names are on the tribal rolls, but
who have not heretofore been enrolled by said Commission, commonly known as
" delinquents," and such intermarried white persons as may have married rec
ognized citizens of the Choctaw and Chickasaw nations in accordance with the
tribal laws, customs, and usages on or before the date of the passage of this act
by Congress, and such infant children as may have been born to recognized and
enrolled citizens on or before the date of the final ratification of this agree
ment ; but the application of no person whomsoever for enrollment shall be
received after the expiration of the said ninety days: Provided, That nothing
in this section shall apply to any person or persons making application for
enrollment as Mississippi Choctaws, for whom provision has herein otherwise
been made.
64 LAWS AFFECTING THE FIVE CIVILIZED TKIBES.
.'J5. No person whose name does not appear upon the rolls prepared as herein
provided shall be entitled to in any manner participate in the distribution of
the common property of the Choctaw and Chickasaw tribes, and those whose
names appear thereon shall participate in the manner set forth in this agree
ment : Provided, That no allotment of land or other tribal property shall be made
to any person, or to the heirs of any person, whose name is on the said rolls,
and who died prior to the date of the final ratification of this agreement The
right of such person to any interest in the lands or other tribal property shall
be deemed to have become extinguished and to have passed to the tribe in gen
eral upon his death before the date of the final ratification of this agreement,
and any person or persons who may conceal the death of anyone on said rolls
as aforesaid, for the purpose of profiting by the said concealment, and who shall
knowingly receive any portion of any land or other tribal property, or of the pro
ceeds so arising from any allotment prohibited by this section, shall be deemed
guilty of a felony, and shall be proceeded against as may be provided in other
cases of felony, and the penalty for this offense shall be confinement at hard
labor for a period of not less than one year nor more than five years, and in
addition thereto a forfeiture to the Choctaw and Chickasaw nations of the
lands, other tribal property, and proceeds so obtained.
CHICKASAW FREEDMEN.
36. Authority is hereby conferred upon the Court of Claims to determine the
existing controversy respecting the relations of the Chickasaw freedmen to the
Chickasaw Nation and the rights of such freedmen in the lands of the Choctaw
and Chickasaw nations under the third article of the treaty of eighteen hundred
and sixty-six, between the United States and the Choctaw and Chickasaw
nations, and under any and all laws subsequently enacted by the Chickasaw
legislature or by Congress.
87. To that end the Attorney-General of the United States is hereby directed,
on behalf of the United States, to file in said Court of Claims, within sixty days
after this agreement becomes effective, a bill of interpleader against the Choc
taw and Chickasaw nations and the Chickasaw freedmen, setting forth the
existing controversy between the Chickasaw Nation and the Chickasaw freed
men and praying that the defendants thereto be required to interplead and settle
their respective rights in such suit.
38. Service of process in the suit may be had on the Choctaw and Chickasaw
nations, respectively, by serving upon the principal chief of the former and the
governor of the latter a certified copy of the bill, with a notice of the time for
answering the same, which shall not be less than thirty nor more than sixty
days after such service, and may be had upon the Chickasaw freedmen by serv
ing upon each of three known and recognized Chickasaw freedmen a certified
copy of the bill, with a like notice of the time for answering the same, and by
publishing a notice of the commencement of the suit, setting forth the nature and
prayer of the bill, with the time for answering the same, for a period of three
\veeks in at least two weekly newspapers having general circulation in the
Chickasaw Nation.
39. The Choctaw and Chickasaw nations, respectively, may in the manner pre
scribed in sections twenty -one hundred and three to twenty -one hundred and six,
both inclusive, of the Revised Statutes, employ counsel to represent them in such
suit and protect their interests therein; and the Secretary of the Interior shall
employ competent counsel to represent the Chickasaw freedmen in said suit and
to protect their interests therein; and the compensation of counsel so employed
for the Chickasaw freedmen, including all costs of printing their briefs and
other incidental expenses on their part, not exceeding six thousand dollars, shall
be paid out of the Treasury of the United States upon certificate of the Secre
tary of the Interior setting forth the employment and the terms thereof, and
stating that the required services have been duly rendered ; and any party
feeling aggrieved at the decree of the Court of Claims, or any part thereof, may,
within sixty days after the rendition thereof, appeal to the Supreme Court, and
in each of said courts the suit shall be advanced for hearing and decision at the
earliest practicable time.
40. In the meantime the Commission to the Five Civilized Tribes shall make
a roll of the Chickasaw freedmeu and their descendants, as provided in the
Atoka agreement, and shall make allotments to them as provided in this agree
ment, which said allotments shall be held by the said Chickasaw freedmen, not
as temporary allotments, but as final allotments, and in the event that it shall
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 65
be finally determined in said suit that the Chickasaw freedmen are not, inde
pendently of this agreement, entitled to allotments in the Choctaw and Chicka
saw lands, the Court of Claims shall render a decree in favor of the Choctaw ami
Chickasaw nations according to their respective interests, and against the United
States, for the value of the lands so allotted to the Chickasaw freedmen as
ascertained by the appraisal thereof made by the Commission to the Five
Civilized Tribes for the purpose of allotment, which decree shall take the place
of the said lands and shall be in full satisfaction of all claims by the Choctaw
and Chickasaw nations against the United States or the said freedmen on ac
count of the taking of the said lands for allotment to said freedmen : Provided,
That nothing contained in this paragraph shall be construed to affect or change
the existing status or rights of the two tribes as between themselves respecting
the lands taken for allotment to freedmen, or the money, if any, recovered as
compensation therefor, as aforesaid.
MISSISSIPPI CHOCTAWS.
41. All persons duly identified by the Commission to the Five Civilized Tribes
under the provisions of section 21 of the act of Congress approved June 28, 1898
(30 Stats., 495), as Mississippi Choctaws entitled to benefits under article 14 of
the treaty between the United States and the Choctaw Nation concluded Sep
tember 27, 1830, may, at any time within six months after the date of their
identification as Mississippi Choctaws by the said Commission, make bona fide
settlement within the Choctaw-Chickasaw country, and upon proof of such set
tlement to such Commission within one year after the date of their said identifi
cation as Mississippi Choctaws shall be enrolled by such Commission as Missis
sippi Choctaws entitled to allotment as herein provided for citizens of the tribes,
subject to the special provisions herein provided as to Mississippi Choctaws, and
said enrollment shall be final when approved by the Secretary of the Interior.
The application of no person for identification as a Mississippi Choctaw shall be
received by said Commission after six months subsequent to the date of the final
ratification of this agreement, and in the disposition of such applications all
full-blood Mississippi Choctaw Indians and the descendants of any Mississippi
Choctaw Indians, whether of full or mixed blood, who receive a patent to land
under the said fourteenth article of the said treaty of eighteen hundred and
thirty who had not moved to and made bona fide settlement in the Choetaw-
Chickasaw country prior to June twenty-eighth, eighteen hundred and ninety
eight, shall be deemed to be Mississippi Choctaws, entitled to benefits under
article fourteen of the said treaty of September twenty-seventh, eighteen hun
dred and thirty, and to identification as such by said Commission, but this direc
tion or provision shall be deemed to be only a rule of evidence and shall not be
invoked by or operate to the advantage of any applicant who is not a Mississippi
Choctaw of the full blood, or who is not the descendent of a Mississippi Choctaw
who received a patent to land under said treaty, or who is otherwise barred
from the right of citizenship in the Choctaw Nation. All of said Mississippi
Choctaws so enrolled by said Commission shall be upon a separate roll.
42. When any such Mississippi Choctaw shall have in good faith continuously
resided upon the lands of the Choctaw and Chickasaw nations for a period of
three years, including his residence thereon before and after such enrollment, he
shall, upon due proof of such continuous bona fide residence, made in such man
ner and before such officer as may bo designated by the Secretary oT the Interior,
receive a patent for his allotment, as provided in the Atoka agreement, and he
shall hold the lands allotted to him as provided in this agreement for citizens of
the Choctaw and Chickasaw nations.
43. Applications for enrollment as Mississippi Choctaws, and applications to
have land set apart to them as such, must be made personally before the Com
mission to the Five Civilized Tribes. Fathers may apply for their minor chil
dren ; and, if the father he dead, the mother may apply ; husbands may apply
for wives. Applications for orphans, insane persons, and persons of unsound
mind may be made by duly appointed guardian or curator, and for aged and
infirm persons and prisoners by agents duly authorized thereunto by power of
attorney, in the discretion of said Commission.
44. If within four years after such enrollment any such Mississippi Choctaw,
or his heirs or representatives if he be dead, fails to make proof of such continu
ous bona fide residence for the period so prescribed, or up to the time of the death
of such Mississippi Choctaw, in case of his death after enrollment, he, and his
33753—06 M 5
66 LAWS AFFECTING THE FIVE CIVILIZED TKIBES.
heirs and representatives if he be dead, shall be deemed to have acquired no
interest in the lands set apart to him, and the same shall be sold at public-
auction for cash, under rules and regulations prescribed by the Secretary of the
Interior, and the proceeds paid into the Treasury of the United States to the
credit of the Choctaw and Chickasaw tribes, and distributed per capita with
other funds of the tribes. Such lands shall not be sold for less than their
appraised value. Upon payment of the full purchase price patent shall issue to
the purchaser.
TOWN SITES.
45. The Choctaw and Chickasaw tribes hereby assent to the act of Congress
approved May 31, 1900 (31 Stats., 221), in so far as it pertains to town sites in
the Choctaw and Chickasaw nations, ratifying and confirming all acts of the
Government of the United States thereunder, and consent to a continuance of
the provisions of said act not in conflict with the terms of this agreement.
4G. As to those town sites heretofore set aside by the Secretary of the Inte
rior on the recommendation of the Commission to the Five Civilized Tribes, as
provided in said act of Congress of May 31, 1900, such additional acreage may
be added thereto, in like manner as the original town site was set apart, as
may be necessary for the present needs and reasonable prospective growth of
said town sites, the total acreage not to exceed six hundred and forty acres for
each town site.
47. The lands which may hereafter be set aside and reserved for town sites
upon the recommendation of the Commission to the Five Civilized Tribes, under
the provisions of said act of May 31, 1900, shall embrace such acreage as may
be necessary for the present needs and reasonable prospective growth of such
town sites, not to exceed six hundred and forty acres for each town site.
48. Whenever any tract of land shall be set aside for town-site purposes, as
provided in said act of May 31, 1900, or by the terms of this agreement, which
is occupied by any member of the Choctaw or Chickasaw nations, such occupant
shall be fully compensated for his improvements thereon, out of the funds' of
the tribes arising from the sale of town sites, under rules and regulations to be
prescribed by the Secretary of the Interior, the value of such improvements to
be determined by a board of appraisers, one member of which shall be appointed
by the Secretary of the Interior, one by the chief executive of the tribe in which
the town site is located, and one by the occupant of the land, said board of
appraisers to be paid such compensation for their services as may be deter
mined by the Secretary of the Interior out of any appropriation for surveying,
laying out, platting, and selling town sites.
49. Whenever the chief executive of the Choctaw or Chickasaw Nation fails
or refuses to appoint a town-site commissioner for .any town, or to fill any
vacancy caused by the neglect or refusal of the town-site commissioner ap
pointed by the chief executive of the Choctaw or Chickasaw Nation to qualify
or act, or otherwise, the Secretary of the Interior, in his discretion, may appoint
a commissioner to fill the vacancy thus created.
50. There shall be appointed, in the manner provided in the Atoka agreement,
such additional town-site commissions as the Secretary of the Interior may
deem necessary, for the speedy disposal of all town sites in said nations : Pro
vided, That the jurisdiction of said additional town-site commissions shall ex
tend to such -town sites only as shall be designated by the Secretary of the
Interior.
51. Upon the payment of the full amount of the purchase price of any lot in any
town site in the Choctaw and Chickasaw nations, appraised and sold as herein
provided, or sold as herein provided, the chief executives of said nations shall
jointly execute, under their hands and the seals of the respective nations and
deliver to the purchaser of the said lot a patent conveying to him all right,
title, and interest of the Choctaw and Chickasaw tribes in and to said lot.
52. All town lots in any one town site to be conveyed to one person shall, as
far as practicable, be included in one patent, and all patents shall be executed
free of charge to the grantee.
53. Such towns in the Choctaw and Chickasaw nations as may have a popula
tion of less than two hundred people, not otherwise provided for, and which in
the judgment of the Secretary of the Interior should be set aside as town sites,
shall have their limits defined not later than ninety days after the final ratifica
tion of this agreement, in the same manner as herein provided for other town
sites ; but in no such case shall more than forty acres of land be set aside for
any such town site.
LAWS AFFECTING THE FIVE CIVILIZED TKIBES. 67
54. All town sites heretofore set aside by the Secretary of the Interior on the
recommendation of the Commission to the Five Civilized Tribes, under the pro
visions of "the act of Congress approved May 31, 1900 (31 Stat, 221), with the
additional acreage added thereto, and all town sites which may hereafter be set
aside, as well as all town sites set aside under the provisions of this agreement
having a population of less than two hundred, shall be surveyed, laid out,
platted, appraised, and disposed of in a like manner, and with like preference
rights accorded to owners of improvements as other town sites in the Choctaw
and Chickasaw nations are surveyed, laid out, platted, appraised, and disposed
of under the Atoka agreement, as modified or supplemented by the said act of
May 31, 1900: Provided, That occupants or purchasers of lots in town sites in
said Choctaw and Chickasaw nations upon which no improvements have been
made prior to the passage of this act by Congress shall pay the full appraised
value of said lots instead of the percentage named in the Atoka agreement.
MUNICIPAL CORPORATIONS.
55. Authority is hereby conferred upon municipal corporations in the Choctaw
and Chickasaw nations, with the approval of the Secretary of the Interior, to
issue bonds and borrow money thereon for sanitary purposes and for the con
struction of sewers, lighting plants, waterworks, and schoolhouses, subject to all
the provisions of laws of the United States in force in the organized Territories
of the United States in reference to municipal indebtedness and issuance of
bonds for public purposes ; and said provisions of law are hereby put in force
in said nations and made applicable to the cities and towns therein the same as
if specially enacted in reference thereto ; and said municipal corporations are
hereby authorized to vacate streets and alleys, or parts thereof, and said streets
and alleys, when so vacated, shall become the property of the adjacent property
holders.
COAL AND ASPHALT.
56. At the expiration of two years after the final ratification of this agreement
all deposits of coal and asphalt which are in lands within the limits of any
town site established under the Atoka agreement, or the act of Congress of
May 31, 1900, or this agreement, and which are within the exterior limits of
any lands reserved from allotment on account of their coal or asphalt deposits,
as herein provided, and which are not at the time of the final ratification of
this agreement embraced in any then existing coal or asphalt lease, shall be
sold at public auction for cash under the direction of the President as herein
after provided, and the proceeds thereof disposed of as herein provided respect
ing the proceeds of the sale of coal and asphalt lands.
57. All coal and asphalt deposits which are within the limits of any town site
so 'established, which are at the date of the final ratification of this agreement
covered by any existing lease, shall, at the expiration of two years after the
final ratification of this agreement, be sold at public auction under the direction
of the President as hereinafter provided, and the proceeds thereof disposed of
as provided in the last preceding section. The coal or asphalt covered by each
lease shall be separately sold. The purchaser shall take such coal or asphalt
deposits subject to the existing lease, and shall by the purchase succeed to all
the rights of the two tribes of every kind and character, under the lease, but
all advanced royalties received by the tribe shall be retained by them.
58. Within six months after the final ratification of this agreement the Secre
tary of the Interior shall ascertain, so far as may be practicable, what lands are
principally valuable because of their deposits of coal or asphalt, including
therein all lands which at the time of the final ratification of this agreement
shall be covered by then existing coal or asphalt leases, and within that time
he shall, by a written order, segregate and reserve from allotment all of said
lands. Such segregation and reservation shall conform to the subdivisions of
the Government survey as nearly as may be, and the total segregation and
reservation shall not exceed five hundred thousand acres. No lands so reserved
shall be allotted to any member or freedman, and the improvements of any
member or freedman existing upon any of the lands so segregated and reserved
at the time of their segregation and reservation shall be appraised under the
direction of the Secretary of the Interior, and shall be paid for out of any
common funds of the two tribes in the Treasury of the United States, upon the
order of the Secretary of the Interior. All coal and asphalt deposits, as well as
other minerals which may be found in any lauds not so segregated and reserved,
68 LAWS AFFECTING THE FIVE CIVILIZED TKIBES.
shall be deemed a part of the land and shall pass to the allottee or other person
who may lawfully acquire title to such lands.
59. All lands segregated and reserved under the last preceding section, except
ing those embraced within the limits of a town site, established as hereinbefore
provided, shall, within three years from the final ratification of this agreement
and before the dissolution of the tribal governments, be sold at public auction
for cash, under the direction of the President, by a commission composed of
three persons, which shall be appointed by the President, one on the recom
mendation of the pricipal chief of the Choctaw Nation, who shall be a Choctaw
by blood, and one on the recommendation of the governor of the Chickasaw
Nation, who shall be a Chickasaw by blood. Either of said commissioners may,
at any time, be removed by the President for good cause shown. Each of said
commissioners shall be paid at the rate of four thousand dollars per annum,
the Choctaw commissioner to be paid by the Choctaw Nation, the Chickasaw
commissioner to be paid by the Chickasaw Nation, and the third commissioner
to be paid by the United States. In the sale of coal and asphalt lands and coal
and asphalt deposits hereunder, the commission shall have the right to reject
any or all bids which it considers below the value of any such lands or deposits.
The proceeds arising from the sale of coal and asphalt lands and coal and
asphalt deposits shall be deposited in the Treasury of the United States to the
credit of said tribes and paid out per capita to the members of said tribes
(freedmeu excepted) with the other moneys belonging to said tribes in the man
ner provided by law. The lands embraced within any coal or asphalt lease shall
be separately sold, subject to such lease, and the purchaser shall succeed to
all the rights of the two tribes of every kind and character, under the lease,
but all advanced royalties received by the tribes shall be retained by them.
The lands so segregated and reserved, and not included within any existing coal
or asphalt lease, shall be sold in tracts not exceeding in area a section under
the Government survey.
60. Upon the recommendation of the chief executive of each of the two tribes,
and where in the judgment of the President it is advantageous to the tribes so
to do, the sale of any coal or asphalt lands which are herein directed to be sold
may be made at any time after the expiration of six months from the final
ratification of this agreement, without awaiting the expiration of the period of
two years, as hereinbefore provided.
61. No lease of any coal or asphalt lands shall be made after the final ratifi
cation of this agreement, the provisions of the Atoka agreement to the contrary
notwithstanding.
62. Where any lands so as aforesaid segregated and reserved on account of
their coal or asphalt deposits are in this agreement specifically reserved from
allotment for any other reason, the sale to be made hereunder shall be only of
the coal and asphalt deposits contained therein, and in all other respects the
other specified reservation of such lands herein provided for shall be fully
respected.
63. The chief executives of the two tribes shall execute and deliver, with the
approval of the Secretary of the Interior, to each purchaser of any coal or
asphalt lands so sold, and to each purchaser of any coal or asphalt deposits so
sold, an appropriate patent or instrument of conveyance, conveying to the
purchaser the property so sold.
SULPHUR SPRINGS.
64. The two tribes hereby absolutely and unqualifiedly relinquish, cede, and
convey unto the United States a tract or tracts of land at and in the vicinity
of the village of Sulphur, in the Chickasaw Nation, of not exceeding six hundred
and forty acres, to be selected, under the direction of the Secretary of the
Interior, within four months after the final ratification of this agreement, and
to embrace all the natural springs in and about said village, and so much of
Sulphur Creek, Rock Creek, Buckhorn Creek, and the lands adjacent to said
natural springs and creeks as may be deemed necessary by the Secretary of the
Interior for the proper utilization and control of said springs and the waters of
said creeks, which lands shall be so selected as to cause the least interference
with the contemplated town site at that place consistent with the purposes for
which said cession is made, and when selected the ceded lands shall be held,
owned, and controlled by the United States absolutely and without any re
striction, save that no part thereof shall be platted or disposed of for town-site
purposes during the existence of the two tribal governments. Such other lands
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 69
as may be embraced in a town site at that point shall be disposed of in the
manner provided in the Atoka agreement for the disposition of town sites.
Within ninety days after the selection of the lands so ceded there shall be
deposited in the Treasury of the United States, to the credit of the two tribes,
from the unappropriated public moneys of the United States, twenty dollars
per acre for each acre so selected, which shall be in full compensation for the
lands so ceded, and such moneys shall, upon the dissolution of the tribal gov
ernments, be divided per capita among the members of the tribes, freedmen
excepted, as are other funds of the tribes. All improvements upon the lands
so selected which were lawfully there at the time of the ratification of this
agreement by Congress shall be appraised, under the direction of the Secretary
of the Interior, at the true value thereof at the time of the selection of said
lands, and shall be paid for by warrants drawn by the Secretary of the Interior
upon the Treasurer of the United States. Until otherwise provided by law,
the Secretary of the Interior may, under rules prescribed for that purpose,
regulate and control the use of the water of said springs and creeks and the
temporary use and occupation of the lands so ceded. No person shall occupy
any portion of the lands so ceded or carry on any business thereon, except as
provided in said rules, and until otherwise provided by Congress the laws of
the United States relating to the introduction, possession, sale, and giving away
of liquors or intoxicants of any kind within the Indian country or Indian
reservations shall be applicable to the lands so ceded, and said lands shall
remain within the jurisdiction of the United States court for the southern dis
trict of Indian Territory : Provided, however, That nothing contained in this
section shall be construed or held to commit the Government of the United
States to any expenditure of money upon said lands or the improvements
thereof, except as provided herein, it being the intention of this provision that
in the future the lands and improvements herein mentioned shall be conveyed
by the United States to such Territorial or State organization as may exist at
the time when such conveyance is made.
MISCELLANEOUS.
05. The acceptance of patents for minors, prisoners, convicts, and incompe
tents by persons authorized to select their allotments for them shall be sufficient
to bind such minors, prisoners, convicts, and incompetents as to the conveyance
of all other lands of the tribes.
00. All patents to allotments of land, when executed, shall be recorded in the
office of the Commission to the Five Civilized Tribes within said nations in books
appropriate for the purpose, until such time as Congress shall make other suit
able provision for record of land titles as provided in the Atoka agreement,
without expense to the grantee; and such records shall have like effect as other
public records.
07. The provisions of section three of the act of Congress approved June
twenty-eighth, eighteen hundred and ninety-eight (30 Stats., 495), shall not
apply to or in any manner affect the lands or other property of the Choctaws
and Chickasaws or Choctaw and Chickasaw freedmen.
08. No act of Congress or treaty provision, nor any provision of the Atoka
agreement, inconsistent with this agreement, shall be in force in said Choctaw
and Chickasaw nations.
09. All controversies arising between members as to their right to select par
ticular tracts of land shall be determined by the Commission to the Five Civi
lized Tribes.
70. Allotments may be selected and homesteads designated for minors by the
father or mother, if members, or by a guardian or curator, or the administrator
having charge of their estate, in the order named; and for prisoners, convicts,
aged, and infirm persons by duly appointed agents under power of attorney ; and
for incompetents by guardians, curators, or other suitable person akin to them ;
but it shall be the duty of said Commission to see that said selections are made
for the best interests of such parties.
71. After the expiration of nine months after the date of the original selec
tion of an allotment, by or for any citizen or freedmen of the Choctaw or
Chickasaw tribes, as provided in this agreement, no contest shall be instituted
against such selection.
72. There shall be paid to each citizen of the Chickasaw Nation, immediately
after the approval of his enrollment and right to participate in distribution of
tribal property, as herein provided, the sum of forty dollars. Such payment
70 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
shall be made under the direction of the Secretary of the Interior, and out of
the balance of the " arrears of interest " of five hundred and fifty-eight thou
sand five hundred and twenty dollars and fifty-four cents appropriated by the
act of Congress approved June twenty-eighth, eighteen hundred and ninety-
eight, entitled "An act for the protection of the people of the Indian Territory,
and for other purposes," yet due to the Chickasaws and remaining to their
credit in the Treasury of the United States ; and so much of such moneys as
may be necessary for such payment are hereby appropriated and made available
for that purpose, and the balance, if any there be, shall remain in the Treasury
of the United States, and be distributed per capita with the other funds of the
tribes. And all acts of Congress or other treaty provisions in conflict with this
provision are hereby repealed.
73. This agreement shall be binding upon the United States and upon the
Choctaw and Chickasaw nations and all Choctaws and Chickasaws, when rati
fied by Congress and by a majority of the whole number of votes cast by the
legal voters of the Choctaw and Chickasaw tribes in the manner following:
The principal chief of the Choctaw Nation and the governor of the Chickasaw
Nation shall, within one hundred and twenty days after the ratification of this
agreement by Congress, make public proclamation that the same shall be voted
upon at any special election to be held for that purpose within thirty days
thereafter, on a certain day therein named ; and all male citizens of each of the
said tribes qualified to vote under the tribal laws shall have a right to vote
at the election precinct most convenient to his residence, whether the same
be within the bounds of his tribe or not. And if this agreement be ratified by
said tribes as aforesaid, the date upon which said election is held shall be
deemed to be the date of final ratification.
74. The votes cast in both the Choctaw and Chickasaw nations shall be forth
with returned and duly certified by the precinct officers to the national secre
taries of said tribes, and shall be presented by said national secretaries to a
board of commissioners consisting of the principal chief and the national secre
tary of the Choctaw Nation and the governor and national secretary of the
Chickasaw Nation and two members of the Commission to the Five Civilized
Tribes ; and said board shall meet without delay at Atoka, Indian Territory, and
canvass and count said votes, and make proclamation of the result.
In witness whereof the said Commissioners do hereby affix their names at
Washington, District of Columbia, this twenty-first day of March, 1902.
Approved, July 1, 1902.
F Cherokee agreement (32 Stat. L., 716).]
AN ACT To provide for the allotment of the lands of the Cherokee Nation, for the disposi
tion of town sites therein, and for other purposes.0
Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled,
DEFINITION OF WORDS EMPLOYED HEREIN.
SECTION 1. The words " nation " and " tribe " shall each be held to refer to the
Cherokee Nation or tribe of Indians in Indian Territory.
SEC. 2. The words " principal chief " or " chief executive " shall be held to
mean the principal chief of said tribe.
SEC. 3. The words " Dawes Commission " or " Commission " shall be held to
mean the United States Commission to the Five Civilized Tribes.
SEC. 4. The word " minor " shall be held to mean males under the age of
twenty-one years and females under the age of eighteen years.
SEC. 5. The terms " allottable lands " or " lands allottable " shall be held to
mean all the lands of the Cherokee tribe not herein reserved from allotment.
SEC. 6. The word " select " and its various modifications, as applied to allot
ments and homesteads, shall be held to mean the formal application at the land
office, to be established by the DawTes Commission for the Cherokee Nation, for
particular tracts of land.
SEC. 7. The words " member " or " members " and " citizen " or " citizens "
shall be held to mean members or citizens of the Cherokee Nation, in the Indian
Territory.
0 This agreement ratified by Cherokee Nation at an election held August 7, 1902.
LAWS AFFECTING THE FIVE CIVILIZED TKIBES. 71
SEC. 8. Every word in this act importing the masculine gender may extend and
be applied to females as well as males, and the use of the plural may include
also the singular, and vice versa.
APPRAISEMENT OF LANDS.
SEC. 9. The lands belonging to the Cherokee tribe of Indians in Indian Terri
tory, except such as are herein reserved from allotment, shall be appraised at
their true value : Provided, That in the determination of the value of such land
consideration shall not be given to the location thereof, to any timber thereon,
or to any mineral deposits contained therein, and shall be made without refer
ence to improvements which may be located thereon.
SEC. 10. The appraisement, as herein provided, shall be made by the Commis
sion to the Five Civilized Tribes, under the direction of the Secretary of the
Interior.
ALLOTMENT OF LANDS.
SEC. 11. There shall be allotted by the Commission to the Five Civilized Tribes
and to each citizen of the Cherokee tribe, as soon as practicable after the ap
proval by the Secretary of the Interior of his enrollment as herein provided,
land equal in value to one hundred and ten acres of the average allottable lands
of the Cherokee Nation, to conform as nearly as may be to the areas and bound
aries established by the Government survey, which land may be selected by each
allottee so as to include his improvements.
SEC. 12. For the purpose of making allotments and designating homesteads
hereunder, the forty-acre, or quarter of a quarter section, subdivision estab
lished by the Government survey may be dealt with as if further subdivided into
four equal parts in the usual manner, thus making the smallest legal subdivi
sion ten acres, or a quarter of a quarter of a quarter of a section.
SEC. 13. Each member of said tribe shall, at the time of the selection of his
allotment, designate as a homestead out of said allotment land equal in value
to forty acres of the average allottable lands of the Cherokee Nation, as nearly
as may be, which shall be inalienable during the lifetime of the allottee, not
exceeding twenty-one years from the date of the certificate of allotment. Sepa
rate certificate shall issue for said homestead. During the time said homestead
is held by the allottee the same shall be nontaxable and shall not be liable for
any debt contracted by the owner thereof while so held by him.
SEC. 14. Lands allotted to citizens shall not in any manner whatever or
at any time be encumbered, taken, or sold to secure or satisfy any debt or
obligation, or be alienated by the allottee or his heirs, before the expiration of
five years from the date of the ratification of this act.
SEC. 15. All lands allotted to the members of said tribe, except such land as is
set aside to each for a homestead as herein provided, shall be alienable in five
years after issuance of patent.
SEC. 16. If for any reason an allotment should not be selected or a homestead
designated by or on behalf of any member of the tribe, it shall be the duty of
said Commission to make said selection and designation.
SEC. 17. In the making of allotments and in the designation of homesteads for
members of said tribe, said Commission shall not be required to divide lands
into tracts of less than the smallest legal subdivision provided for in section
twelve hereof.
SEC. 18. It shall be unlawful after ninety days after the ratification of this
act by the Cherokees for any member of the Cherokee tribe to inclose or hold
possession of, in any manner, by himself or through another, directly or indi
rectly, more lands in value than that of one hundred and ten acres of average
allottable lands of the Cherokee Nation, either for himself or for his wife, or
for each of his minor children, if members of said tribe; and any member of
said tribe found in such possession of lands, or having the same in any manner
inclosed, after the expiration of ninety days after the date of the ratifica
tion of this act shall be deemed guilty of a misdemeanor.
SEC. 19. Any person convicted of violating any of the provisions of section
eighteen of this act shall be punished by a fine of not less than one hundred
dollars, shall stand committed until such fine and costs are paid (such com
mitment not to exceed one day for every two dollars of said fine and costs), and
shall forfeit possession of any property in question, and each day on which such
offense is committed or continues to exist shall be deemed a separate offense.
72 LAWS AFFECTING THE FIVE CIVILIZED TKIBES.
The United States district attorney for the northern district is required to see
that the provisions of said section eighteen are strictly enforced, and he shall im
mediately, after the expiration of the ninety days after the ratification of this
act, proceed to dispossess all persons of such excessive holdings of lands and to
prosecute them for so unlawfully holding the same, and the Commission to the
Five Civilized Tribes shall have authority to make investigations of all viola
tions of section eighteen and make report thereon to the United States district
attorney.
SEC. 20. If any person whose name appears upon the roll prepared as herein
provided shall have died subsequent to the first day of September, nineteen
hundred and two, and before receiving his allotment, the lands to which such
person would have been entitled if living shall be allotted in his name, and
shall, with his proportionate share of other tribal property, descend to his heirs
according to the laws of descent and distribution as provided in chapter forty-
nine of Mansfield's Digest of the Statutes of Arkansas: Provided, That the
allotment thus to be made shall be selected by a duly appointed administrator
or executor. If, however, such administrator or executor be not duly and
expeditiously appointed, or fails to act promptly when appointed, or for any
other cause such selection be not so made within a reasonable and proper
time, the Dawes Commission shall designate the lands thus to be allotted.
SEC. 21. Allotment certificates issued by the Dawes Commission shall be con
clusive evidence of the right of an allottee to the tract of land described therein,
and the United States Indian agent for the Union Agency shall, under the di
rection of the Secretary of the Interior, upon the application of the allottee,
place him in possession of his allotment, and shall remove therefrom all per
sons objectionable to him, and the acts of the Indian agent hereunder shall not
be controlled by the writ or process of any court.
SEC. 22. Exclusive jurisdiction is hereby conferred upon the Commission to
the Five Civilized Tribes, under the direction of the Secretary of the Interior,
to determine all matters relative to the appraisement and the allotment of
lands.
SEC. 23. All Delaware Indians who are members of the Cherokee Nation shall
take lands and share in the funds of the tribe, as their rights may be determined
by the judgment of the Court of Claims, or by the Supreme Court if appealed,
in the suit instituted therein by the Delawares against the Cherokee Nation,
and now pending; but if said suit be not determined before said Commission
is ready to begin the allotment of lands of the tribe as herein provided, the
Commission shall cause to be segregated one hundred and fifty-seven thousand
six hundred acres of land, including lands which have been selected and occu
pied by Delawares in conformity to the provisions of their agreement with the
Cherokees dated April eighth, eighteen hundred and sixty-seven, such lands
so to remain, subject to disposition according to such judgment as may be ren
dered in said cause ; and said Commission shall thereupon proceed to the allot
ment of the remaining lands of the tribe as aforesaid. Said Commission shall,
when final judgment is rendered, allot lands to such Delawares in conformity to
the terms of the judgment and their individual rights thereunder. Nothing
in this act shall in any manner impair the rights of either party to said con
tract as the same may be finally determined by the court, or shall interfere
with the holdings of the Delawares under their contract with the Cherokees
of April eighth, eighteen hundred and sixty-seven, until their rights under said
contract are determined by the courts in their suit now pending against the
Cherokees, and said suit shall be advanced on the dockets of said courts and
determined at the earliest time practicable.
RESERVATIONS.
SEC. 24. The following lands shall be reserved from the allotment of lands
herein provided for:
(a) All lands set apart for town sites by the provision of the act of Congress
of June twenty-eighth, eighteen hundred and ninety-eight (Thirtieth Statutes,
page four hundred and ninety-five), the provisions of the act of Congress of
May thirty-first, nineteen hundred (Thirty-first Statutes, page two hundred and
twenty-one), and by the provisions of this act.
(b) All lands to which, upon the date of the ratification of this act, any rail
road company may, under any treaty or act of Congress, have a vested right
for right of way, depots, station grounds, water stations, stock yards, or similar
uses only, connected with the maintenance and operation of the railroad.
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 73
(c) All lands selected for town cemeteries not to exceed twenty acres each.
(d) One acre of land for each Cherokee schoolhouse not included in town
sites or herein otherwise provided for.
(e) Four acres for Willie Halsell College at Vinita.
(f ) Four acres for Baptist Mission school at Tahlequah.
(g) Four acres for Presbyterian school at Tahlequah.
(h) Four acres for Park Hill Mission school south of Tahlequah.
(i) Four acres for Elm Springs Mission school at Barren Fork.
(j) Four acres for Dwight Mission school at Sallisaw.
(k) Four acres for Skiatook Mission near Skiatook.
(1) Four acres for Lutheran Mission school on Illinois River north of Tahle
quah.
(in) Sufficient ground for burial purposes where neighborhood cemeteries are
now located, not to exceed three acres each.
(n) One acre for each church house outside of towns.
(o) The square now occupied by the capitol building at Tahlequah.
(p) The grounds now occupied by the national jail at Tahlequah.
(q) The grounds now occupied by the Cherokee Advocate printing office at
Tahlequah.
(r) Forty acres for the Cherokee Male Seminary near Tahlequah.
(s) Forty acres for the Cherokee Female Seminary at Tahlequah.
(t) One hundred and twenty acres for the Cherokee Orphan Asylum on Grand
River.
(u) Forty acres for colored high school in Tahlequah district.
(v) Forty acres for the Cherokee Insane Asylum.
(w) Four acres for the school for blind, deaf, and dumb children near Fort
Gibson.
The acre so reserved for any church or schoolhouse in any quarter section
of land shall be located where practicable in a corner of such quarter section
adjacent to the section lines thereof.
Provided, That the Methodist Episcopal Church South may, within twelve
months after the ratification of this act, pay ten dollars per acre for the one
hundred and sixty acres of land adjacent to the town of Vinita, and heretofore
set apart by act of the Cherokee national council for the use of said church for
missionary and educational purposes, and now occupied by Willie Halsell Col
lege (formerly Galloway College), and shall thereupon receive title thereto;
but if said church fail so to do it may continue to occupy said one hundred and
sixty acres of land as long as it uses same for the purposes aforesaid.
Any other school or college in the Cherokee Nation which claims to be entitled
under the law to a greater number of acres than is set apart for said school or
college by section twenty-four of this act may have the number of acres to which
it is entitled by law. The trustees of such school or college shall, within sixty
days after the ratification of this act, make application to the Secretary of the
Interior for the number of acres to which such school or college claims to be
entitled, and if the Secretary of the Interior shall find that such school or
college is, under the laws and treaties of the Cherokee Nation in force prior to
the ratification of this act, entitled to a greater number of acres of land than
is provided for in this act, he shall so determine and his decision shall be final.
The amount so found by the Secretary of the Interior shall be set apart for the
use of such college or school as long as the same may be used for missionary
and educational purposes : Provided, That the trustees of such school or college
shall pay ten dollars per acre for the number of acres so found by the Secretary
of the Interior and which have been heretofore set apart by act of the Cherokee
national council for use of such school or college for missionary or educational
purposes, and upon the payment of such sum within sixty days after the
decision of the Secretary of the Interior said college or school may receive a
title to such land.
BOLL OF CITIZENSHIP.
SEC. 25. The roll of citizens of the Cherokee Nation shall be made as of Sep
tember first, nineteen hundred and two, and the names of all persons then living
and entitled to enrollment on that date shall be placed on said roll by the
Commission to thfc Five Civilized Tribes.
SEC. 26. The names of all persons living on the first day of geptember, nine
teen hundred and two, entitled to be enrolled as provided in section twenty-five
hereof, shall be placed upon the roll made by said Commission, and no child
born thereafter to a citizen, and no white person who lias intermarried with a
74 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
Cherokee citizen since the sixteenth day of December, eighteen hundred and
ninety-five, shall be entitled to enrollment or to participate in the distribution of
the tribal property of the Cherokee Nation.
SEC. 27. Such rolls shall in all other respects be made in strict compliance with
the provisions of section twenty-one of the act of Congress approved June
twenty-eighth, eighteen hundred and ninety-eight (Thirtieth Statutes, page four
hundred and ninety-five), and the act of Congress approved May thirty-first,
nineteen hundred (Thirty-first Statutes, page two hundred and twenty-one).
SEC. 28. No person whose name appears upon the roll made by the Dawes
Commission as a citizen or freedman of any other tribe shall be enrolled as a
citizen of the Cherokee Nation.
SEC. 29. For the purpose of expediting the enrollment of the Cherokee citizens
and the allotment of lands as herein provided, the said Commission shall, from
time to time, and as soon as practicable, forward to the Secretary of the Interior
lists upon which shall be placed the names of those persons found by the Com
mission to be entitled to enrollment. The lists thus prepared, when approved
by the Secretary of the Interior, shall constitute a part and parcel of the final
roll of citizens of the Cherokee tribe upon which allotment of land and distribu
tion of other tribal property shall be made. When there shall have been sub
mitted to and approved by the Secretary of the Interior lists embracing the
names of all those lawfully entitled to enrollment, the roll shall be deemed com
plete. The roll so prepared shall be made in quadruplicate, one to be deposited
with the Secretary of the Interior, one with the Commissioner of Indian Affairs,
one with the principal chief of the Cherokee Nation, and one to remain with the
Commission to the Five Civilized Tribes.
SEC. 30. During the months of September and October, in the year nineteen
hundred and two, the Commission to the Five Civilized Tribes may receive ap
plications for enrollment of such infant children as may have been born to
recognized and enrolled citizens of the Cherokee Nation on or before the first day
of September, nineteen hundred and two, but the application of no person whom
soever for enrollment shall be received after the thirty-first day of October,
nineteen hundred and two.
SEC. 31. No person whose name does not appear upon the roll prepared as
herein provided shall be entitled to in any manner participate in the distribution
of the common property of the Cherokee tribe, and those whose names appear
thereon shall participate in the manner set forth in this act : Provided, That no
allotment of land or other tribal property shall be made to any person, or to the
heirs of any person, whose name is on said roll and who died prior to the first
day of September, nineteen hundred and two. The right of such person to any
interest in the lands or other tribal property shall be deemed to have become
extinguished and to have passed to the tribe in general upon his death before
said date, and any person or persons who may conceal the death of anyone on
said roll as aforesaid for the purpose of profiting by said concealment, and who
shall knowingly receive any portion of any land or other tribal property or of
the proceeds so arising from any allotment prohibited by this section, shall be
deemed guilty of a felony, and shall be proceeded against as may be provided
in other cases of felony, and the penalty for this offense shall be confinement at
hard labor for a period of not less than one year nor more than five years, and in
addition thereto a forfeiture to the Cherokee Nation of the lands, other tribal
property, and proceeds so obtained.
SCHOOLS.
SEC. 32. The Cherokee school fund shall be used, under the direction of the
Secretary of the Interior, for the education of children of Cherokee citizens, and
the Cherokee schools shall be conducted under rules prescribed by him according
to Cherokee laws, subject to such modifications as he may deem necessary to
make the schools most effective and to produce the best possible results ; said
schools to be under the supervision of a supervisor appointed by the Secretary
and a school board elected by the national council.
SEC. 33. All teachers shall be examined by said supervisor, and said school
board and. competent teachers and other persons to be engaged in and about the
schools with good moral character only shall be employed ; but where all quali
fications are equal, preference shall be given to citizens of the Cherokee Nation
in such employment.
SEC. 34. All moneys for carrying on the schools shall be appropriated by the
Cherokee national council, not to exceed the amount of the Cherokee school
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 75
fund ; but if the council fail or refuse to make the necessary appropriations, the
Secretary of the Interior may direct the use of a sufficient amount of the school
fund to pay all necessary expenses for the efficient conduct of the schools, strict
account thereto r to be rendered to him and the principal chief.
SEC. 35. All accounts for expenditures in carrying on the schools shall be
examined and approved by said supervisor, and also by the general superin
tendent of Indian schools in the Indian Territory, before payment thereof is
made. .
SEC. 36. The interest arising from the Cherokee orphan fund shall be used,
under the direction of the Secretary of the Interior, for maintaining the Chero
kee Orphan Asylum for the benefit of the Cherokee orphan children.
BOADS.
SEC. 37. Public highways or roads two rods in width, being one rod on each
side of the section line, may be established along all section lines without any
compensation being paid therefor, and all allottees, purchasers, and others shall
take the title to such lands subject to this provision ; and public highways or
roads may be established elsewhere whenever necessary for the public good, the
actual^ value of the land taken elsewhere than along section lines to be deter
mined under the direction of the Secretary of the Interior while the tribal gov
ernment continues and to be paid by the Cherokee Nation during that time ; and
if buildings or other improvements are damaged in consequence of the estab
lishment of such public highways or roads, whether along section lines or else
where, such damages, during the continuance of the tribal government, shall be
determined and paid for in the same manner.
TOWN SITES.
SEC. 38. The lands which may hereafter be set aside and reserved for town
sites upon the recommendation of the Dawes Commission under the provisions
of the act of Congress approved May thirty-first, nineteen hundred (Thirty-first
Statutes, page two hundred and twenty-one), shall embrace such acreage as may
be necessary for the present needs and reasonable prospective growth of such
town sites, not to exceed six hundred and forty acres for each town site.
SEC. 39. Whenever any tract of land shall be set aside by the Secretary of the
Interior for town-site purposes, as provided in said act of May thirty-first, nine
teen hundred, or by the terms of this act, which is occupied at the time of such
segregation by any member of the Cherokee Nation, such occupant shall be
allowed to purchase any lot upon which he then has improvements other than
fences, tillage, and temporary improvements, in accordance with the provisions
of the act of June twenty-eighth, eighteen hundred and ninety-eight (Thirtieth
Statutes, page four hundred and ninety-five), or, if he so elects, the lot will be
sold under rules and regulations to be prescribed by the Secretary of the Inte
rior, and he shall be fully compensated for his improvements thereon out of the
funds of the tribe arising from the sale of the town sites, the value of such
improvements to be determined by a board of appraisers, one member of which
shall be appointed by the Secretary of the Interior, one by the chief executive
of the tribe, and one by the occupant of the land, said board of appraisers to be
paid such compensation for their services as may be determined by the Secretary
of the Interior out of any appropriations for surveying, laying out, platting, and
selling town sites.
SEC. 40. All town sites which may hereafter be set aside by the Secretary of
the Interior on the recommendation of the Commission to the Five Civilized
Tribes, under the provisions of the act of Congress approved May thirty-first,
nineteen hundred (Thirty-first Statutes, page two hundred and twenty -one),
with the additional acreage added thereto, as well as all town sites set aside
under the provisions of this act having a population of less than two hundred,
shall be surveyed, laid out, platted, appraised, and disposed of in like manner,
and with like preference rights accorded to owners of improvements as other
towrn sites in the Cherokee Nation are surveyed, laid out, platted, appraised,
and disposed of under the act of Congress of June twenty-eighth, eighteen hun
dred and ninety-eight (Thirtieth Statutes, page four hundred and ninety-five),
as modified or supplemented by the act of May thirty-first, nineteen hundred :
Provided 'That as to the town sites set aside as aforesaid, the owner of the im
provements shall be required to pay the full appraised value of the lot instead
76 LAWS AFFECTING THE FIVE CIVILIZED TKIBES.
of the percentage named in said act of June twenty-eighth, eighteen hundred
and ninety-eight (Thirtieth Statutes, page four hundred and ninety-five).
SEC. 41. Any person being in possession or having the right to the possession
of any town lot or lots, as surveyed and platted under the direction of the Sec
retary of the Interior, in accordance with the act of Congress approved May
thirty-first, nineteen hundred (Thirty-first Statutes, page two hundred and
twenty-one), the occupancy of which lot or lots was originally acquired under
any town-site act of the Cherokee Nation, and owning improvements thereon,
other than temporary buildings, fencing, or tillage, shall have the right to pur
chase the same at one-fourth of the appraised value thereof.
SEC. 42. Any person being in possession of, or having the right to the posses
sion of, any town lot or lots, as surveyed and platted under the direction of the
Secretary of the Interior, in accordance with the act of Congress approved May
thirty-first, nineteen hundred (Thirty-first Statutes, page two hundred and
twenty-one), the occupancy of which lot or lots was originally acquired under
any town-site act of the Cherokee Nation, and not having any improvements
thereon, shall have the right to purchase the same at one-half of the appraised
value thereof.
SEC. 43. Any citizen in rightful possession of any town lot having improve
ments thereon other than temporary buildings, fencing, and tillage, the occu
pancy of which has not been acquired under tribal laws, shall have the right
to purchase same by paying one-half the appraised value thereof: Provided,
That any other person in undisputed possession of any town lot having improve
ments thereon other than temporary buildings, fencing, and tillage, the occu-
pacy of which has not been acquired under tribal laws, shall have the right to
purchase such lot by paying the appraised value thereof.
SEC. 44. All lots not having thereon improvements other than temporary build
ings, fencing, and tillage, the sale or disposition of which is not herein other
wise specifically provided for, shall be sold within twelve months after ap
praisement, under the direction of the Secretary of the Interior, after due ad
vertisement, at public auction, to the highest bidder, at not less than their
appraised value.
SEC. 45. When the appraisement of any town lot is made and approved, the
town-site commission shall notify the claimant thereof of the amount of ap
praisement, and he shall, within sixty days thereafter, make payment of ten
per centum of the amount due for the lot, and four months thereafter he shall
pay fifteen per centum additional, and the remainder of the purchase money he
shall pay in three equal annual installments without interest ; but if the claim
ant of any such lot fail to purchase same or make the first and second payments
aforesaid or make any other payment within the time specified, the lot and
improvements shall be sold at public auction to the highest bidder, under the
direction of the Secretary of the Interior, at a price not less than its appraised
value.
SEC. 46. When any improved lot shall be sold at public auction because of the
failure of the person owning improvements thereon to purchase same within
the time allowed in said act of Congress approved June twenty-eighth, eighteen
hundred and ninety -eight (Thirtieth Statutes, page four hundred and ninety-
five), said improvements shall be appraised by a committee, one member of
which shall be selected by the owner of the improvements and one member by
the purchaser of said lot ; and in case the said committee is not able to agree
upon the value of said improvements, the committee may select a third member,
and in that event the determination of the majority of the committee shall con
trol. Said committee of appraisement shall be paid such compensation for their
services by the two parties in interest, share and share alike, as may be agreed
upon, and the amount of said appraisement shall be paid by the purchaser of the
lot to the owner of the improvements in cash within thirty days after the de
cision of the committee of appraisement.
SEC. 47. The purchaser of any unimproved town lot sold at public auction shall
pay twenty-five per centum of the purchase money at the time of the sale, and
within four months thereafter he shall pay twenty-five per centum additional,
and the remainder of the purchase money he shall pay in two equal annual
installments without interest.
SEC. 48. Such towns in the Cherokee Nation as may have a population of less
than two hundred people not otherwise provided for, and which, in the judgment
of the Secretary of the Interior, should be set aside as town sites, sjiall have
their limits defined as soon as practicable after the approval of this act in the
same manner as provided for other town sites.
LAWS AFFECTING THE FIVE CIVILIZED TKIBES. 77
SEC. 49. The town authorities of any town site in said Cherokee Nation may
select and locate, subject to the approval of the Secretary of the Interior, a ceme
tery within suitable distance from said town, to embrace such number of acres
as may be deemed necessary for such purpose. The town-site commission shall
appraise the same at its true value, and the town may purchase the same within
one year from the approval of the survey by paying the appraised value. If any
citizen have improvements thereon, said improvements shall be appraised by said
town-site commission and paid for by the town : Provided, That lands already
laid out by tribal authorities for cemeteries shall be included in the cemeteries
herein provided for without cost to the towns, and the holdings of the burial lots
therein now occupied for such purpose shall in no wise be disturbed : And pro
vided further, That any park laid out and surveyed in any town shall be duly
appraised at a fair valuation, and the inhabitants of said town shall, within one
year after the approval of the survey and the appraisement of said part by the
Secretary of the Interior, pay the appraised value to the proper officer for the
benefit of the tribe.
SEC. 50. The United States shall pay all expenses incident to surveying, plat
ting, and disposition of town lots, and all allotments of lands made under the
provisions of this plan of allotment, except where the town authorities may have
been or may be duly authorized to survey and plat their respective towns at the
expense of such towns.
SEC. 51. No taxes shall be assessed by any town government against any town
lot remaining unsold, but taxes may be assessed against any town lot sold as
herein provided.
SEC. 52. 'If the purchaser of any town lot fail to make payment of any sum
when due, the same shall thereafter bear six per centum interest per annum until
paid.
SEC. 53. All lots or parts of lots, not exceeding fifty by one hundred and fifty
feet in size, upon which church houses and parsonages have been erected, and
which are occupied as such at the time of the appraisement, shall be conveyed
gratuitously to the churches to which such improvements belong, and if such
churches have inclosed other adjoining lots actually necessary for their use, they
may purchase the same by paying the appraised value thereof.
SEC. 54. Whenever the chief executive of the Cherokee Nation fails or refuses
to appoint a town-site commissioner for any town, or to fill any vacancy caused
by the neglect or refusal of the town-site commissioners appointed by the chief
executive to qualify or act, or otherwise, the Secretary of the Interior, in his
discretion, may appoint a commissioner to fill the vacancy thus created.
SEC. 55. The purchaser of any town lot may at any time pay the full amount
of the purchase money, and he shall thereupon receive title therefor.
SEC. 56. Any person may bid for and purchase any lot sold at public auction as
herein provided.
SEC. 57. The United States may purchase in any town in the Cherokee Nation
suitable lands for court-houses, jails, or other necessary public purposes for its
use by paying the appraised value thereof, the same to be selected under the
direction of the department for whose use such lands are needed, and if any
person have improvements thereon the same shall be appraised in like manner as
other town property, and shall be paid for by the United States.
TITLES.
SEC. 58. The Secretary of the Interior shall furnish the principal chief with
blank patents necessary for all conveyances herein provided for, and when any
< itizen receives his allotment of land, or when any allotment has been so ascer
tained and fixed that title should under the provisions of this act be conveyed,
the principal chief shall thereupon proceed to execute and deliver to him a pat
ent conveying all the right, title, and interest of the Cherokee Nation, and of all
other citizens, in and to the lands embraced in his allotment certificate.
SEC. 59. All conveyances shall be approved by the Secretary of the Interior,
which shall serve as a relinquishment to the grantee of all the right, title, and
interest of the United States in and to the lands embraced in his patent
SEC. GO. Any allottee accepting such patent shall be deemed to assent to the
allotment and conveyance of all lands of the tribe as provided in this act, and to
relinquish all his right, title, and interest to the same, except in the proceeds of
lands reserved from allotment.
SEC. 61. The acceptance of patents for minors and incompetents by persons
authorized to select their allotments for them shall be deemed sufficient to bind
78 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
such minors and incompetents as to the conveyance of all other lands of the
tribe.
SEC. 62. All patents, when so executed and approved, shall be filed in the
office of the Dawes Commission, and recorded in a book provided for the pur
pose, until such time as Congress shall make other suitable provision for record
of land titles, without expense to the grantee, arid such records shall have like
effect as other public records.
MISCELLANEOUS.
SEC. 63. The tribal government of the Cherokee Nation shall not continue
longer than March fourth, nineteen hundred and six.
SEC. 64. The collection of all revenues of whatsoever character belonging to
the tribe shall be made by an officer appointed by the Secretary of the Interior,
under rules and regulations to be prescribed by the said Secretary.
SEC. 65. All things necessary to carry into effect the provisions of this act, not
otherwise herein specifically provided for, shall be done under the authority and
direction of the Secretary of the Interior.
SEC. 66. All funds of the tribe, and all moneys accruing under the provisions
of this act, shall be paid out under the direction of the Secretary of the Interior,
and when required for per capita payments shall be paid directly to each indi
vidual by an appointed officer of the United States, under the direction of the
Secretary of the Interior.
SEC. 67. The Secretary of the Interior shall cause to be paid all just indebt
edness of said tribe existing at the date of the ratification of this 'act which
may have lawfully been contracted, and warrants therefor regularly issued
upon the several funds of the tribe, as also warrants drawn by authority of law
hereafter and prior to the dissolution of the tribal government, such payments
to be made from any funds in the United States Treasury belonging to said
tribe, and all such indebtedness of the tribe shall be paid in full before any pro
rata distribution of the funds of the tribe shall be made. The Secretary of the
Interior shall make such payments at the earliest time practicable, and he shall
make all needed rules and regulations to carry this provision into effect.
SEC. 68. Jurisdiction is hereby conferred upon the Court of Claims to exam
ine, consider, and adjudicate, with a right of appeal to the Supreme Court of
the United States by any party in interest feeling aggrieved at the decision of
the Court of Claims, any claim which the Cherokee tribe, or any band thereof,
arising under treaty stipulations, may have against the United States, upon
which suit shall be instituted within two years after the approval of this act;
and also to examine, consider, and adjudicate any claim which the United
States may have against said tribe, or any band thereof. The institution, prose
cution, or defense, as the case may be, on the part of the tribe or any band, of
any such suit, shall be through attorneys employed and to be compensated in the
manner prescribed .in sections twenty-one hundred and three to twenty-one
hundred and six, both inclusive, of the Revised Statutes of the United States,
the tribe acting through its principal chief in the employment of such attor
neys, and the band acting through a committee recognized by the Secretary of
the Interior. The Court of Claims shall have full authority, by proper orders
and process, to make parties to any such suit all persons whose presence in the
litigation it may deem necessary or proper to the final determination of the mat
ter in controversy, and any such suit shall, on motion of either party, be ad
vanced on the docket of either of said courts and be determined at the earliest
practicable time.
SEC. 69. After the expiration of nine months after the date of the original
selection of an allotment by or for any citizen of the Cherokee tribe as provided
in this act, no contest shall be instituted against such selection, and as early
thereafter as practicable patent shall issue therefor.
SEC. 70. Allotments may be selected and homesteads designated for minors
by the father or mother, if citizens, or by guardian, or curator, or the adminis
trator having charge of their estate, in the order named ; and for prisoners,
convicts, aged and infirm persons, and soldiers and sailors of the United States
on duty outside of the Indian Territory, by duly appointed agents under power
of attorney ; and for incompetents by guardians, curators, or other suitable
persons akin to them ; but it shall be the duty of said Commission to see that
said selections are made for the best interests of such parties.
SEC. 71. Any allottee taking as his nllotment lands located around the Chero
kee National Male Seminary, the Cherokee National Female Seminary, or Chero-
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 79
kee Orphan Asylum which have not been reserved from allotment as herein
provided, and upon which buildings, fences, or other property of the Cherokee
Nation are located, such buildings, fences, or other property shall be appraised
at the true value thereof and be paid for by the allottee taking such lands as
his allotment, and the money to be paid into the Treasury of the United States
to the credit of the Cherokee Nation.
SEC. 72. Cherokee citizens may rent their allotments when selected for a term
not to exceed one year for grazing purposes only^and for a period not to exceed
five years for agricultural purposes, but without any stipulation or obligation to
renew the same; but leases for a period longer than one year for grazing pur
poses, and for a period longer than five years for agricultural purposes and for
mineral purposes may also be made with the approval of the Secretary of the
Interior and not otherwise. Any agreement or lease of any kind or character
violative of this section shall be absolutely void and not susceptible of ratifica
tion in any manner, and no rule of estoppel shall ever prevent the assertion of
its invalidity. Cattle grazed upon leased allotments shall not be liable to any
tribal tax, but when cattle are introduced into the Cherokee Nation and grazed
on lands not selected as allotments by citizens the Secretary of the Interior
shall collect from the owners thereof a reasonable grazing tax for the benefit of
the tribe, and section twenty-one hundred and seventeen of the Revised Stat
utes of the United States shall not hereafter apply to Cherokee lands.
SEC. 73. The provisions of section thirteen of the act of Congress approved
June twenty-eighth, eighteen hundred and ninety-eight, entitled "An act for the
protection of the people of the Indian Territory, and for other purposes," shall
not apply to or in any manner affect the lands or other property of said tribe, and
no act of Congress or treaty provision inconsistent with this agreement shall be
in force in said nation except sections fourteen and twenty-seven of said last-
mentioned act, which shall continue in force as if this agreement had not been
made.
SEC. 74. This act shall not take effect or be of any validity until ratified by a
majority of the whole number of votes cast by the legal voters of the Cherokee
Nation in the manner following :
SEC. 75. The principal chief shall, within ten days after the passage of this
act by Congress, make public proclamation that the same shall be voted upon at
a special election to be held for that purpose within thirty days thereafter, on a
certain date therein named, and he shall appoint such officers and make such
other provisions as may be necessary for holding such election. The votes cast
at such election shall be forthwith duly certified as required by Cherokee law,
and the votes shall be counted by the Cherokee national council, if then in ses
sion, and if not in session the principal chief shall convene an extraordinary
session for the purpose, in the presence of a member of the Commission to the
Five Civilized Tribes, and said member and the principal chief shall jointly
make certificate thereof and proclamation of the result and transmit the same
to the President of the United States.
Approved July 1, 1902.
[Appropriation act of March 3, 1903 (32 Stat. L., 982).]
For salaries of four commissioners appointed under acts of Congress ap
proved March third, eighteen hundred and ninety-three, and March second,
eighteen hundred and ninety-five, to negotiate with the Five Civilized Tribes in
the Indian Territory, twenty thousand dollars : Provided, That said Commis
sion shall exercise all the powers heretofore conferred upon it by Congress.
Expenses of commissioners and necessary expenses of employees, and three
dollars per diem for expenses of a clerk detailed as special disbursing agent by
the Interior Department while on duty with the Commission, shall be paid
therefrom ; for clerical help, including secretary of the Commission and inter
preters (act of March third, nineteen hundred and one, volume thirty-one, page
one thousand and seventy-four, section one), two hundred thousand eight hun
dred and fifteen dollars; contingent expenses of the. Commission (same act),
two thousand dollars : Provided further, That this appropriation may be used
by said Commission in the prosecution of all work to be done by or under its
direction as required by law; in all, two hundred and twenty-two thousand
eight hundred and fifteen dollars: And provided further. That not to exceed ten
thousand eight hundred dollars of the above amount may be used in the tempo
rary employment in the office of the Commissioner of Indian affairs of four
clerks, at the rate of one thousand six hundred dollars per annum ; one clerk, at
80 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
the rate of one thousand four hundred dollars, and who shall be competent to
examine records in disputed citizenship cases and law contests growing out of
the work of said Commission, and in the temporary employment in said office of
three competent stenographers, at the rate of one thousand dollars each per
annum.
*******
For personal and traveling expenses of the three judges of the Choctaw and
Chickasaw citizenship court, five thousand dollars, or so much thereof as may be
necessary ; for one stenographer to each of said judges, to be appointed by them,
respectively, at one hundred dollars per month each, three thousand six
hundred dollars; for traveling expenses and subsistence of said stenographers,
the reporter, and the bailiff of said court, not to exceed three dollars per day
each, one thousand five hundred dollars, or so much thereof as may be necessary ;
in all, ten thousand one hundred dollars, to be immediately available.
The Supreme Court of the United States may transfer to the Choctaw and
Chickasaw citizenship court the papers in the cases of Choctaw and Chickasaw
citizenship appealed from the United States courts in the Indian Territory to
the Supreme Court during the year eighteen hundred and ninety-eight.
That all causes transferred under section thirty-one of the Act of Congress of
July first, nineteen hundred and two, entitled "An act to ratify and confirm
an agreement with the Choctaw and Chickasaw tribes of Indians, and for other
purposes," to the citizenship court for the Choctaw and Chickasaw nations
provided in said act shall be tried and determined under the provisions of
section thirty-two of said act and disposed of the same as if appealed to such
court under the provisions of section thirty-two of the said act: Provided, That
upon the final determination of cases within the jurisdiction of said citizenship
court said court may fix reasonable compensation to the attorneys employed
by contract dated January seventeenth, nineteen hundred and one, with the
Choctaw and Chickasaw nations, and such determinations shall be made irre
spective of the rate fixed in said contract between said attorneys and said
nations, or either of them, unless the same shall have received the approval of
the Secretary of the Interior. And upon the final determination of said cases
by said citizenship court the Treasurer of the United States is hereby directed
to pay to said attorneys on the warrant or warrants drawn by the Secretary
of the Interior the amount of such compensation out of any funds in the
Treasury belonging to said nations. And the existence of the Choctaw and
Chickasaw citizenship court is hereby extended until December thirty-first,
nineteen hundred and four.
To pay all expenses incident to the survey, platting, and appraisement of
town sites in the Choctaw, Chickasaw, Creek, and Cherokee nations, Indian
Territory, as required by sections fifteen and twenty-nine of an act entitled
"An act for the protection of the people of the Indian Territory, and for other
purposes," approved June twenty-eighth, eighteen hundred and ninety-eight,
and all acts amendatory thereof or supplemental thereto, twenty-five thousand
dollars : Provided, That the money hereby appropriated shall be applied only
to the expenses incident to the survey, platting, and appraisement of town sites
heretofore set aside and reserved from allotment: And provided further, That
nothing herein contained shall prevent the survey and platting, at their own
expense, of town sites by private parties where stations are located along the
lines of railroads, nor the unrestricted alienation of lands for such purposes,
when recommended by the Commission to the Five Civilized Tribes and approved
by the Secretary of the Interior. That hereafter the Secretary of the Interior
may, whenever the chief executive of the Choctaw or Chickasaw nations fails
or refuses to appoint a town-site commissioner for any town, or to fill any
vacancy caused by the neglect or refusal of the town-site commissioner ap
pointed by the chief executive of the Choctaw or Chickasaw nations to qualify
or act, in his discretion, appoint a commissioner to fill the vacancy thus created.
*******
That the sum of twenty thousand dollars, or so much thereof as is necessary,
is hereby appropriated, to be immediately available, for the purpose of aiding
indigent and identified full-blood Mississippi Choctaws to remove to the Indian
Territory, to be expended at the discretion and under the direction of the Sec
retary of the Interior.
*******
SEC. 8. That the tribal government of the Seminole Nation shall not continue
longer than March fourth, nineteen hundred and six : Provided, That the Sec-
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 81
retary of the Interior shall at the proper time furnish the principal chief with
blank deeds necessary for all conveyances mentioned in the agreement with
the Seminole Nation contained in the act of July first, eighteen hundred and
ninety-eight (Thirtieth Statutes, page five hundred and sixty-seven), and said
principal chief shall execute and deliver said deeds to the Indian allottees as
required by said act, and the deeds for allotment, when duly executed and
approved, shall be recorded in the office of the Dawes Commission prior to
delivery and without expense to the allottee until further legislation by Con
gress, and such records shall have like effect as other public records : Provided
further, That the homestead referred to in said act shall be inalienable during
the lifetime of the allottee, not exceeding twenty-one years from the date of
the deed for the allotment. A separate deed shall be issued for said homestead,
and during the time the same is held by the allottee it shall not be liable for
any debt contracted by the owner thereof.
[Act of April 21, 1904 (33 Stat. L., 189).]
AN ACT Making appropriations for the current and contingent expenses of the Indian
Department and for fulfilling treaty stipulations with various Indian tribes for the
fiscal year ending June thirtieth, nineteen hundred and five, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled, That the following sums be, and they are
hereby, appropriated, out of any money in the Treasury not otherwise appro
priated, for the purpose of paying the current and contingent expenses of the
Indian Department, and in full compensation for all offices the salaries for
which are specially provided for herein, for the service of the fiscal year ending
June thirtieth, nineteen hundred and five, and for fulfilling treaty stipulations
with various Indian tribes, namely :
*******
To pay such contingent expenses of the Choctaw and Chickasaw citizenship
court and such of its officers as the Secretary of the Interior may deem proper,
and for rental of quarters, five thousand dollars, to be immediately available.
And the unexpended balance of the appropriation for contingent expenses, as
provided in the act of July first, nineteen hundred and two, of five thousand
dollars remaining on the books of the Interior Department December thirty-
first, nineteen hundred and three, amounting to one thousand one hundred and
thirty-six dollars and twenty-five cents, to the credit of the Choctaw and
Chickasaw citizenship court, is hereby reappropriated for the necessary ex
penses of the said court until December thirty-first, nineteen hundred and four.
For one stenographer to each of the three judges of the Choctaw and Chicka
saw citizenship court, appointed by them, respectively, at one hundred dollars
per month each from March third to J,une thirtieth, nineteen hundred and
three, one thousand one hundred and eighty dollars and sixty-five cents ; for
traveling expenses and subsistence of said stenographers, the reporter, and the
bailiff of said court, not to exceed three dollars per day each, one thousand five
hundred dollars ; in all, two thousand six hundred and eighty dollars and sixty-
five cents, to be immediately available.
*******
For salaries of four commissioners appointed under acts of Congress ap
proved March third, eighteen hundred and ninety-three, and March second,
eighteen hundred and ninety-five, to negotiate with the Five Civilized Tribes
in the Indian Territory, twenty thousand dollars, and said Commission shall
conclude its work and terminate on or before the first day of July, nineteen
hundred and five, and said Commission shall cease to exist on July first, nine
teen hundred and five: Provided, That said Commission shall exercise all the
powers heretofore conferred upon it by Congress : And provided further, That
the Secretary of the Interior is hereby granted authority to sell at public sale
in tracts not exceeding one hundred and sixty acres to any one purchaser,
under rules and regulations to be made by the Secretary of the Interior, the
residue of land in the Creek Nation belonging to the Creek tribe of Indians,
consisting of about five hundred thousand acres, and being the residue of lands
left over after allotments of one hundred and sixty acres to each of said tribe.
And all thfc restrictions upon the alienation of lands of all allottees of either
of the Five Civilized Tribes of Indians who are not of Indian blood, except
minors, are, except as to homesteads, hereby removed, and all restrictions upon
33753 — 06 M 6
82 LAWS AFFECTING THE FIVE CIVILIZED TKIBES.
the alienation of all other allottees of said tribes, except minors, and except as
to homesteads, may, with the approval of the Secretary of the Interior, be
removed under such rules and regulations as the Secretary of the Interior may
prescribe, upon application to the United States Indian agent at the Union
Agency in charge of the Five Civilized Tribes, if said agent is satisfied upon
a full investigation ot" each individual case that such removal of restrictions is
for the best interest of said allottee. The finding of the United States Indian
agent and the approval of the Secretary of the Interior shall be in writing and
shall be recorded in the same manner as patents for lands are recorded.
Expenses of Commissioners and necessary expenses of employees ; for clerical
help, including secretary of the Commission and interpreters, two hundred and
forty-two thousand two hundred and ninety-five dollars ; contingent expenses of
the Commission, three thousand dollars : Provided further, That this appropria
tion may be used by said Commission in the prosecution of all work to be done
by or under its direction as required by law ; in all, two hundred and sixty-five
thousand two hundred and ninety-five dollars.
That no proceedings heretofore had with respect to allotments in the Cherokee
Nation shall be held invalid on the ground that they were had before there was
authority to begin the work of allotment in said nation : Provided, That nothing
herein shall be construed as validating any filings heretofore made on lands
segregated for the Delaware Indians.
To complete the town-site appraisement and surveys in the Indian Territory
under the provisions of the act of June twenty-eighth, eighteen hundred and
ninety-eight, twenty-five thousand dollars: Provided, That said work shall be
completed on or before July first, nineteen hundred and five.
To carry out the provisions of section ten of the supplemental agreements with
the Creek Nation, as ratified by the act of June thirtieth, nineteen hundred and
two, and section thirty-seven of the Cherokee agreements as ratified by the act of
July first, nineteen hundred and two, ten thousand dollars.
For the purpose of placing allottees in the Indian Territory in possession of
their allotments, to be expended under the direction of the Secretary of the Inte
rior, thirty thousand dollars : Provided, That no portion of the money herein
appropriated for the Indian Territory shall be paid to any person in the service
of the United States until such person shall make oath that he has no financial
interest with any person or corporation dealing in Indian lands in the Indian
Territory.
That the Delaware-Cherokee citizens who have made improvements, or are in
rightful possession of such improvements, in the Cherokee Nation at the time of
the passage of this act shall have the right to first select from said improved
lands their allotments, and thereafter, for a period of six months, shall have the
right to sell the improvements upon their surplus holdings of lands to other
citizens of the Cherokee Nation entitled to select allotments at a valuation to be
approved by an official to be designated by the President for that purpose ; and
the vendor shall have a lien upon the rents and profits of the land on which the
improvements are located for the purchase money remaining unpaid; and the
vendor shall have the right to enforce such lien in any court of competent juris
diction. The vendor may, however, elect to take and retain the possession of
the land at a fair cash rental, to be approved by the official so as aforesaid desig
nated, until sucii rental shall be sufficient to satisfy the unpaid purchase price,
and when the purchase price is fully paid he shall forthwith deliver possession
of the land to the purchaser : Provided, however, That any crops then growing
on the land shall be and remain the property of the vendor, and he may have
access to the land so long as may be necessary to cultivate and gather such grow
ing crops. Any such purchaser shall, without unreasonable delay, apply to
select as an allotment the land upon which the improvements purchased by him
are located, and shall submit with his application satisfactory proof that he has
in good faith purchased such improvements.
*#*$***
That the Secretary of the Interior be, and he is hereby, authorized and
directed, upon the sale of lands in Indian Territory covered by coal and asphalt
leases, to sell such lands subject to the right of the lessee to use so much of the
surface as may be needed for coke ovens, miners' houses, store and supply build
ings, and such other structures as are generally used in the production and
shipment of coal and coke. Lessees may use the tipples and underground work
ings located on any lease in the production of coal and coke from adjoining
leases, and are hereby authorized to surrender leased premises to the owner
thereof on giving sixty days' notice in writing to such owner and paying all
LAWS AFFECTING THE FIVE CIVILIZED TKIBES. 83
charges and royalties clue to the date of surrender : Provided, however, That
nothing herein contained shall release the lessee from the payment of the stipu
lated royalty so long as such lessee remains in possession of any of the surface
of the lands included in his lease for any purpose whatever : And provided. That
any lessee may remove or dispose of any machinery, tools, or equipment the
lessee may have upon the leased lands.
*******
That the act entitled "An act to refer to the Court of Claims certain claims
of the Shawnee and Delaware Indians and the freedmen of the Cherokee Na
tion, and for other purposes," approved October first, eighteen hundred and
ninety, he, and the same is hereby, amended so as to confer upon the Court of
Claims the same jurisdiction to determine the claims and rights of those
alleged citizens of the Cherokee Nation known as intermarried whites as is
therein conferred upon said court relative to the rights and claims of the Shaw-
nee and Delaware Indians and the freedmen of said Cherokee Nation, and said
case shall be advanced on the calendar of said Court of Claims and the calendar
of the Supreme Court, if the same is appealed. Said court in said judgment
shall fix the amount due the attorney or attorneys of record for their legal
services, not exceeding the amount stipulated by the contracts between said
claimants and said attorneys, and shall in said judgment direct that the ac
counting officers of the United States shall deduct from the amount due each
claimant the attorney fee allowed in said judgment and pay the same directly
to said attorneys and shall pay the balance to the claimants.
That the claim of J. Hale Sypher against the Choctaw Nation, for legal and
professional services rendered by him to said nation, under an agreement made
and entered into between the legally authorized commissioners of said nation
and said Sypher on the seventh day of November, eighteen hundred and ninety-
one, is hereby referred to the Court of Claims for adjudication ; and jurisdic
tion is hereby conferred upon said court to hear and determine said claim upon
the principles of a quantum meruit and without regard to the provisions and
requirements of section twenty-one hundred and three of the Revised Statutes ;
and the said court shall ascertain and determine the character, extent, and
value of the services rendered by said Sypher to said nation under said agree
ment ; and the court, having ascertained and determined the amount justly and
equitably due and payable from said nation to said Sypher for services ren
dered by him under said agreement, shall report their findings to the next ses
sion of Congress.
All uiileased lands which are by section fifty-nine of an act entitled "An act
to ratify and confirm an agreement with the Choctaw and Chickasaw tribes of
Indians, and for other purposes," approved July first, nineteen hundred and
two, directed to " be sold at public auction for cash," and all other unleased
lands and deposits of like character in said nations segregated under any act of
Congress, shall, instead, be sold under direction of the Secretary of the Interior
in tracts not exceeding nine hundred and sixty acres to each person, after due
advertisement, upon sealed proposals, under regulations to be prescribed by the
Secretary of the Interior and approved by the President, with authority to
reject any or all proposals : Provided, That the President shall appoint a com
mission of three persons, one on the recommendation of the principal chief of
the Choctaw Nation, who shall be a Choctawr by blood, and one upon the recom
mendation of the governor of the Chickasaw Nation, who shall be a Chickasaw
by blood, which commission shall have a right to be present at the time of the
opening of bids and be heard in relation to the acceptance or rejection thereof.
All expenses, inclusive of necessary clerical help in the Department of the
Interior, connected with and incident to such sale shall be paid from the funds
of the Choctaw and Chickasaw tribes on deposit in the Treasury of the United
States: Provided, That all leased lands shall be withheld from sale until the
further direction of Congress.
[Act of April 28, 1904 (33 Stat. L., 573).]
AN ACT To provide for additional United States judges in the Indian Territory, and for
other purposes.
Be it enacted by tlie Senate and House of Representatives of the United
Mates of America in Congress assembled, That there shall be appointed by the
President, by and with the advice and consent of the Senate, four additional
judges of the United States court in the Indian Territory, one for the northern
district, one for the western district, one for the central district, and one for the
84 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
southern district. And said judges shall have all the authority and exercise all
the powers, perform like duties, and receive the same salary as other judges of
said court, and shall each serve for a term of four years from date of appoint
ment, unless said offices are sooner abolished by law. Neither the additional
judges, nor their successors in office, shall be members of the court of appeals
for the Indian Territory, but they shall hold such courts, in their respective
districts, as may be directed by the court of appeals of the Indian Territory, or
majority of the judges thereof in vacation : Provided, That none of said judges
shall have power to appoint clerks of courts, United States commissioners, or
United States constables in said districts, and hereafter at least three terms of
court shall be held in each year, at each place of holding court in the Indian
Territory, the times to be fixed in the manner now provided by law.
SEC. 2. All the laws of Arkansas heretofore put in force in the Indian Terri
tory are hereby continued and extended in their operation, so as to embrace
all persons and estates in said Territory, whether Indian, freedmen, or other
wise, and full and complete jurisdiction is hereby conferred upon the district
courts in said Territory in the settlements of all estates of decedents, the
guardianships of minors and incompetents, whether Indians, freedmen, or
otherwise. That the sum of twenty thousand dollars is hereby appropriated,
out of any money in the Treasury not otherwise appropriated, for the payment
of salaries of the judges hereby authorized, the same to be immediately
available.
Approved, April 28, 1904.
[Act of April 28, 1904 (33 Stat. L., 544).]
AN ACT To authorize the Secretary of the Interior to add to the segregation of coal and
asphalt lands in the Choctaw and Chickasaw nations, Indian Territory, and for other
purposes.
Be it enacted T>y the Senate and House of Representatives of the United States
of America in Congress assembled, That the Secretary of the Interior is hereby
authorized and empowered to segregate and reserve from allotment, and to can
cel any filings or applications that may heretofore have been made with a view
to allotting the following-described lands, situate in the Choctaw Nation, to wit:
The north half of the south half of the southeast quarter, and the northeast
quarter of the southeast quarter of the southwest quarter of section nine ; the
north half of the south half of the south half of section ten ; the north half of
the south half of the south half of section eleven, and the north half of the south
half of the southwest quarter of section twelve, all in township five north, range
nineteen east, containing two hundred and fifty acres, more or less ; and the
northwest quarter of the southwest quarter of section eight, township five north,
range nineteen east, and the southwest quarter of the northeast quarter of sec
tion seven, township five north, range nineteen east, containing eighty acres,
more or less.
SEC. 2. That the provisions of sections fifty-six to sixty-three, inclusive, of the
act of Congress approved July first, nineteen hundred and two, entitled "An
act to ratify and confirm an agreement with the Choctaw and Chickasaw
tribes, and for other purposes," be, and the same are hereby, made applicable
to the lands above described, the same as if the said described lands had been
made a part of the segregation, as contemplated by said sections fifty-six to
sixty-three, inclusive, of said above act approved July first, nineteen hundred
and two : Provided, That the Secretary of the Interior may, in his discretion,
add said lands to and make them a part of the coal and asphalt mining leases
now in effect, and to which said lands above described are contiguous, the lands
in each case to be added to and made a part of the lease to which they are
adjacent and which they join, Government subdivisions being followed as nearly
as possible : Provided further, That the holder or holders of the lease or leases
to which such lands shall be added shall, before the same are added, pay the
Indian or Indians who have filed upon or applied for such lands as their allot
ments, or who are in possession thereof, the value of 'the improvements placed
on the land by said Indian or Indians, such value to* be determined under
the direction of the Secretary of the Interior: And provided further, That said
lands shall be sold as other leased coal and asphalt lands in the Choctaw and
Chickasaw nations in the Indian Territory are sold.
SEC. 3. That the Choctaw, Oklahoma and Gulf Railroad Company is hereby
authorized and empowered to sublet, assign, transfer, and set over the leases
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 85
which ft now has upon coal lands in Choctaw Nation, Indian Territory, or any
of them. The assignees or sublessees of said Choctaw, Oklahoma and Gulf
Railroad Company shall file good and sufficient bonds for the faithful perform
ance of the terms of the original leases, to be approved by the Secretary of the
Interior.
Approved, April 28, 1904.
AN ACT Making appropriations for the current and contingent expenses of the Indian
Department and for fulfilling treaty stipulations with various Indian tribes for the
fiscal year ending .Tune thirtieth, nineteen hundred and six, and for other purposes.
Be it enacted ~by the Senate and House of Representatives of the United States
of America in Congress assembled, That the following sums be, and they are
hereby, appropriated, out of any money in the Treasury not otherwise appro
priated, for the purpose of paying the current and contingent expenses of the
Indian Department, and in full compensation for all offices the salaries for
which are specially provided for herein, for the service of the fiscal year ending
June thirtieth, nineteen hundred and six, and for fulfilling treaty stipulations
with various Indian tribes, namely :
*******
CHOCTAWS.
For permanent annuity, per second article of treaty of November sixteenth,
eighteen hundred and five, and thirteenth article of treaty of June twenty-second,
eighteen hundred and fifty-five, three thousand dollars ;
For permanent annuity for support of light horsemen, per thirteenth article
of treaty of October eighteenth, eighteen hundred and twenty, and thirteenth
article of treaty of June twenty-second, eighteen hundred and fifty-five, six
hundred dollars ;
For permanent annuity for support of blacksmith, per sixth article of treaty
of October eighteenth, eighteen hundred and twenty, ninth article of treaty of
January twentieth, eighteen hundred and twenty-five, and thirteenth article of
treaty of June twenty-second, eighteen hundred and fifty-five, six hundred
dollars ;
For permanent annuity for education, per second and thirteenth articles of
last two treaties named above, six thousand dollars ;
For permanent annuity for iron and steel, per ninth article of treaty of Jan
uary twentieth, eighteen hundred and twenty-five, and thirteenth article of
treaty of June twenty-second, eighteen hundred and fifty-five, three hundred and
twenty dollars ;
For interest on three hundred and ninety thousand two hundred and fifty-
seven dollars and ninety-two cents, at five per centum per annum, for education,
support of the government, and other beneficial purposes, under the direction of
the general council of the Choctaws, in conformity with the provisions contained
in the ninth and thirteenth articles of treaty of January twentieth, eighteen
hundred and twenty-five, and treaty of June twenty-second, eighteen hundred
and fifty-five, nineteen thousand five hundred and twelve dollars and eighty-nine
cents ; in all, thirty thousand and thirty-two dollars and eighty-nine cents.
*******
SEMINOLES.
For five per centum interest on two hundred and fifty thousand dollars, to be
paid as annuity, per eighth article of treaty of August seventh, eighteen hundred
and fifty-six, twelve thousand five hundred dollars ;
For five per centum interest on two hundred and fifty thousand dollars, to be
paid as annuity (they having joined their brethren West), per eighth article
of treaty of August seventh, eighteen hundred and fifty-six, twelve thousand five
hundred dollars ;
For interest on fifty thousand dollars, at the rate of five per centum per
annum, to be paid annually for the support of schools, as per third article of
treaty of March twenty-first, eighteen hundred and sixty-six, two thousand five
hundred dollars ;
For interest oh twenty thousand dollars, at the rate of five per centum per
annum, to be paid annually for the support of the Seminole government, as per
same article, same treaty, one thousand dollars ; in all, twenty-eight thousand five
hundred dollars.
86 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
MISCELLANEOUS.
For clerical and incidental expenses of the United States inspector's office,
Indian Territory, in accordance with the provisions of section twenty-seven of
the Act of June twenty-eighth, eighteen hundred and ninety-eight, entitled "An
Act for the protection of the people of the Indian Territory, and for other pur
poses," ten thousand dollars.
*******
For pay of confidential clerk in office of Commissioner of Indian Affairs, at
the rate of one hundred and fifty dollars per month, one thousand eight hundred
dollars, to be immediately available.
To pay all expenses incident to completion of the survey, platting, and ap
praisement of town sites in the Choctaw, Chickasaw, Creek, and Cherokee
Nations, Indian Territory, under the provisions of an Act of June twenty -
eighth, eighteen hundred and ninety-eight, and all Acts amendatory thereof or
supplemental thereto, ten thousand dollars, the same to be immediately avail
able : Provided, That the several town site commissions in the Choctaw, Chicka
saw, Creek, and Cherokee Nations shall, upon the completion of the appraisement
of the town lots in their respective nations, be abolished by the Secretary of
the Interior at such time as in his judgment it is considered proper ; and all
unfinished work of such commissions, the sale of town lots at public auctions,
disposition of contests, the determination of the rights of claimants, and the
closing up of all other minor matters appertaining thereto shall be performed
by the Secretary of the Interior under such rules and regulations as he may
prescribe: Provided further, That all unsold lots, the disposition of which is
required by public auction, shall be offered for sale and disposed of from
time to time by the Secretary of the Interior for the best obtainable price as
will in his judgment best subserve the interests of the several tribes ; and the
various provisions of law in conflict herewith are modified accordingly.
Removal of intruders, Five Civilized Tribes: For the purpose of removing
intruders and placing allottees in unrestricted possession of their allotments,
to be expended under the direction of the Secretary of the Interior, fifteen
thousand dollars.
For clerical work and labor connected with the sale and leasing of Creek and
the leasing of Cherokee lands, fifteen thousand dollars.
For special clerical force in the office of the United States Indian Agent,
Union Agency, and miscellaneous expenses in connection with entering of
remittances received on account of payments of town lots and issuance of
patents, and conveying same, six thousand dollars.
For the completion of the work heretofore required by law to be done by the
Commission to the Five Civilized Tribes, and the provisions for investigations
herein contained two hundred thousand dollars. Said appropriation to be dis
bursed under the direction of the Secretary of the Interior : Provided, That the
work of completing the unfinished business, if any, of the Commission to the
Five Civilized Tribes shall devolve upon the Secretary of the Interior, and that
all the powers heretofore granted to the said Commission to the Five Civilized
Tribes are hereby conferred upon the said Secretary on and after the first of
July, nineteen hundred arid five.
It shall be the duty of the Secretary of the Interior to investigate, or cause
to be investigated, any lease of allotted land in the Indian Territory which he
has reason to believe has been obtained by fraud, or in violation of the terms
of existing agreements with any of the Five Civilized Tribes, and he shall in
any such case where in his opinion the evidence warrants it refer the matter
to the Attorney-General for suit in the proper United States court to cancel the
same, and in all cases where it may appear to the court that any lease was
obtained by fraud, or in violation of such agreements, judgment shall be ren
dered canceling the same upon such terms and conditions as equity may pre
scribe, and it shall be allowable in cases where all parties in interest consent
thereto to modify any lease and to continue the same as modified : Provided,
No lease made by any administrator, executor, guardian or curator which has
been investigated by and has received the approval of the United States court
having jurisdiction of the proceeding shall be subject to suit or proceeding by
the Secretary of the Interior or Attorney-General : Provided further, No lease
made by any administrator, executor, guardian, or curator shall be valid or
enforcible without the approval of the court having jurisdiction of the pro
ceeding.
AFFECTING THE FIVE CIVILIZED TRIBES. 87
That all restrictions as to the sale, incumbrance, or taxation of the lands
heretofore allotted or that may hereafter be allotted to Mrs. Jennie O. Morton,
of Ramona, Indian Territory, or to Fred. A. Kerr, of Hereford, Indian Terri
tory, both citizens of the Cherokee Nation, and duly enrolled as such, be, and
the same hereby are, removed.
*******
That in the case entitled " In the matter of enrollment of persons claiming
rights in the Cherokee Nation by intermarriage against The United States,
Departmental, Numbered Seventy-six," now pending in the Court of Claims,
the said court is hereby authorized and empowered to render final judgment in
said case, and either party feeling itself aggrieved by said judgment shall have
the right of appeal to the Supreme Court of the United States within thirty
days from the filing of said judgment in the Court of Claims. And the said
Supreme Court of the United States shall advance said case on its calendar for
early hearing.
That Delaware-Cherokee citizens wrho have made improvements, or were in
rightful possession of such improvements upon lands in the Cherokee Nation on
April twenty-first, nineteen hundred and four to \vhich there is no valid adverse
claim, shall have the right within six months from the date of the approval
of this Act to dispose of such improvements to other citizens of the Cherokee
Nation entitled to select allotments at a valuation to be approved by an official
to be designated by the President for that purpose and the amount for which
said improvements are disposed of, if sold according to the provisions of this
Act, shall be a lien upon the rents and profits of the land until paid, and such
lien may be enforced by the vendor in any court of competent jurisdiction : Pro
vided, That the right of any Delaware-Cherokee citizen to dispose of such
improvements shall, before the valuation at which the improvements may be
sold, be determined under such regulations as the Secretary of the Interior may
prescribe.
That the Commission to the Five Civilized Tribes is hereby authorized for
sixty days after the date of the approval of this Act to receive and consider
applications for enrollment of infant children born prior to September twenty-
fifth, nineteen hundred and two, and who were living on said date, to citizens
by blood of the Choctaw and Chickasaw tribes of Indians whose enrollment has
been approved by the Secretary of the Interior prior to the date of the approval
of this Act ; and to enroll and make allotments to such children.
That the Commission to the Five Civilized Tribes is authorized for sixty days
after the date of the approval of this Act to receive and consider applications
for enrollment of children born subsequent to September twenty-fifth, nineteen
hundred and two, and prior to March fourth, nineteen hundred and five, and
who wrere living on said latter date, to citizens by blood of the Choctaw and
Chickasaw tribes of Indians whose enrollment has been approved by the Secre
tary of the Interior prior to the date of the approval of this Act ; and to enroll
and make allotments to such children.
That the Commission to the Five Civilized Tribes is authorized for sixty days
after the date of the approval of this Act to receive and consider applications
for enrollments of children born subsequent to May twenty-five, nineteen hun
dred and one, and prior to March fourth, nineteen hundred and five, and living
on said latter date, to citizens of the Creek tribe of Indians whose enrollment
has been approved by the Secretary of the Interior prior to the date of the
approval of this Act ; and to enroll and make allotments to such children.
That the Commission to the Five Civilized Tribes is authorized for ninety
days after the date of the approval of this Act to receive and consider applica
tions for enrollment of infant children born prior to March fourth, nineteen
hundred and five, and living on said latter date, to citizens of the Seminole tribe
whose enrollment has been approved by the Secretary of the Interior; and to
enroll arid make allotments to such children giving to each an equal number
of acres of land, and such children shall also share equally with other citizens of
the Seminole tribe in the distribution of all other tribal property and funds.
That the sum of three hundred thousand dollars be, and the same is hereby,
appropriated from the trust or invested funds of the Chickasaw tribe now in the
Treasury of the United States belonging to said tribe, for the immediate pay
ment of all the outstanding school warrants of said tribe, legally issued for the
purpose of maintaining the public schools of said tribe, such payment to be
made under the direction of the Secretary of the Interior : Provided, That any
unexpended balance of said three hundred thousand dollars shall be held by the
Secretary of the Interior and be by him added to the interests of the Chickasaw
88 LAWS AFFECTING THE FIVE CIVILIZED TKIBES.
tribe in the coal and asphaltum royalty fund, and used for the maintenance of
public schools of said tribe during the existence of the tribal government: And
provided further, That the sum of seventy-five thousand dollars of the money in
the Treasury belonging to the Creek Nation, derived from the sale of lots in town
sites, is hereby appropriated and made immediately available for the payment,
under the direction of the Secretary of the Interior, of the outstanding indebted
ness of said Nation.
That the Secretary of the Interior be, and he is hereby, authorised and
directed to pay, out of any available funds of the Creek Nation of Indians in the
Treasury of the United States, to the Turner Hardware Company, cf Muscogee,
Indian Territory, the sum of one thousand two hundred and forty-nine dollars
and five cents, in full payment of accounts for certain school supplies purchased
by the superintendents for the use of various Creek boarding schools in the years
eighteen hundred and ninety-nine and nineteen hundred, which accounts are
approved by the superintendent of schools in Indian Territory.
*******
That the provision in the Indian appropriation bill for the fiscal year ending
June thirtieth, nineteen hundred and four, authorizing the Secretary of the Inte
rior to sell the residue of the lands of the Creek Nation not taken as allotments
is hereby repealed and the provision of the Creek agreement, Article III,
approved March one, nineteen hundred and one, is hereby restored and reen-
acted.
That the Secretary of the Interior shall make an investigation and definitely
ascertain what amount of land, if any, belonging to the Creek Nation, has been
taken and allotted to the members of the Seminole tribe and arrange payment
to the Creek Nation for such land if there be anything due by the Seminole
Nation.
That the improvements of Seminole citizens upon Creek lands and the
improvements of Creek citizens upon Seminole lands that are unpaid for by said
allottees shall be investigated by the Secretary of the Interior and paid for by
said nations, respectively.
* * * * * * *
SEC. 12. That hereafter all appeals and writs of error shall be taken from the
United States courts in the Indian Territory to the United States court of
appeals in the Indian Territory, and from the United States court of appeals in
the Indian Territory to the United States circuit court of appeals for the eighth
circuit in the same manner as is now provided for in cases taken by appeal or
writ of error from the circuit courts of the United States to the circuit court of
appeals of the United States for the eighth circuit.
JOINT RESOLUTION Intending the tribal existence and government of the Five Civi
lized Tribes of Indians in the Indian Territory.
Resolved ~by the Senate and House of Representatives of the United States of
America in Congress assembled, That the tribal existence and r.esent tribal
governments of the Choctaw, Chickasaw, Cherokee, Creek, and oeminole tribes
or nations of Indians in the Indian Territory are hereby continued in full
force and effect for all purposes under existing laws until all property of such
tribes, or the proceeds thereof, shall be distributed among the individual mem
bers of said tribes unless hereafter otherwise provided by law.
Approved, March 2, 1906.
AN ACT To provide for the final disposition of the affairs of the Five Civilized Tribes
in the Indian Territory, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled, That after the approval of this Act no per
son shall be enrolled as a citizen or freedman of the Choctaw, Chickasaw, Chero
kee, Creek, or Seminole tribes of Indians in the Indian Territory, except as herein
otherwise provided, unless application for enrollment was made prior to De
cember first, nineteen hundred and five, and the records in charge of the Com
missioner to the Five Civilized Tribes shall be conclusive evidence as to the
fact of such application ; and no motion to reopen or reconsider any citizenship
case, in any of said tribes, shall be entertained unless filed with the Commis
sioner to the Five Civilized Tribes within sixty days after the date of the
order or decision sought to be reconsidered except as to Decisions made prior
to the passage of this Act, in which cases such motion shall be made within
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 89
sixty days after the passage of this Act: Provided, That the Secretary of
the Interior may enroll persons whose names appear upon any of the tribal rolls
and for whom the records in charge of the Commissioner to the Five Civilized
Tribes show application was made prior to December first, nineteen hundred
and five, and which was not allowed solely because not made within the time
prescribed by law.
SEC. 2. That for ninety days after approval hereof applications shall be re
ceived for enrollment of children who were minors living March fourth, nine
teen hundred and six, whose parents have been enrolled as members of the
Choctaw, Chickasaw, Cherokee, or Creek tribes, or have applications for enroll
ment pending at the approval hereof, and for the purpose of enrollment under
this section illegitimate children shall take the status of the mother, and allot-t
uients may be made to children so enrolled. If any citizen of the Cherokee"
tribe shall fail to receive the full quantity of land to which he is entitled as
an allotment, he shall be paid out of any of the funds of such tribe a sum
equal to twice the appraised value of the amount of land thus deficient. The
provisions of section nine of the Creek agreement ratified by Act approved
March first, nineteen hundred and one, authorizing the use of funds of the Creek
tribe for equalizing allotments, are hereby restored and reenacted, and after
the expiration of nine months from the date of the original selection of an
allotment of land in the Choctaw, Chickasaw, Cherokee, Creek, or Seminole
tribes, and after the expiration of six months from the passage of this Act as
to allotments heretofore made, no contest shall be instituted against such allot
ment : Provided, 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 the
enrollment of any person after said date: Provided further, That nothing
herein shall be construed so as to hereafter permit any person to file an appli
cation for enrollment in any tribe where the date for filing application has been
fixed by agreement between said tribe and the United States: Provided, That
nothing herein shall apply to the intermarried whites in the Cherokee Nation,
whose cases are now pending in the Supreme Court of the United States.
SEC. 3. That the approved roll of Creek freedmen shall include only those
persons whose names appear on the roll prepared by J. W. Dunn, under author
ity of the United States prior to March fourteenth, eighteen hundred and
sixty-seven, and their descendants born since said roll was made, and those
lawfully admitted to citizenship in the Creek Nation subsequent to the date of
the preparation of said roll, and their descendants born since such admission,
except such, if any, as have heretofore been enrolled and their enrollment
approved by the Secretary of the Interior.
The roll of Cherokee freedmen shall include only such persons of African
descent, either free colored or the slaves of Cherokee citizens and their de
scendants, who were actual personal bona fide residents of the Cherokee Nation
August eleventh, eighteen hundred and sixty-six, or who actually returned and
established such residence in the Cherokee Nation on or before February
eleventh, eighteen hundred and sixty-seven ; but this provision shall not prevent
the enrollment of any person who has heretofore made application to the Com
mission to the Five Civilized Tribes or its successor and has been adjudged
entitled to enrollment by the Secretary of the Interior.
Lands allotted to freedmen of the Choctaw and Chickasaw tribes shall be con
sidered " homesteads," and shall be subject to all the provisions of this or any
other Act of Congress applicable to homesteads of citizens of the Choctaw and
Chickasaw tribes.
SEC. 4. That no name shall be transferred from the approved freedmen, or
any other approved rolls of the Choctaw, Chickasaw, Cherokee, Creek, or Semi
nole tribes, respectively, to the roll of citizens by blood, unless the records in
charge of the Commissioner to the Five Civilized Tribes show that application
for enrollment as a citizen by blood was made within the time prescribed by
law by or for the party seeking the transfer, and said records shall be con
clusive evidence as to the fact of such application, unless it be shown by docu
mentary evidence that the Commission to the Five Civilized Tribes actually
received such application within the time prescribed by law.
SEC. 5. That all patents or deeds to allottees in any of the Five Civilized
Tribes to be hereafter issued shall issue in the name of the allottee, and if any
such allottee shall die before such patent or deed becomes effective, the title to
the lands described therein shall inure to and vest in his heirs, and in case any
allottee shall die after restrictions have been removed, his property shall descend
90 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
to his heirs or his lawful assigns, as if the patent or deed had issued to the
allottee during his life, and all patents heretofore issued, where the allottee
died before the same became effective, shall be given like effect ; and all patents
or deeds to allottees and other conveyances affecting lands of any of said tribes
shall be recorded in the office of the Commissioner to the Five Civilized Tribes,
and when so recorded shall convey legal title, and shall be delivered under the
direction of the Secretary of the Interior to the party entitled to receive the
same: Provided, The provisions of this section shall not affect any rights in
volved in contests pending before the Commissioner to the Five Civilized Tribes
or the Department of the Interior at the date of the approval of this Act.
SEC. 0. That if the principal chief of the Choctaw, Cherokee, Creek, or Semi-
iiole tribe, or the governor of the Chickasaw tribe shall refuse or neglect to
perform the duties devolving upon him, he may be removed from office by the
President of the United States, or if any such executive become permanently
disabled, the office may be declared vacant by the President of the United States,
who may fill any vacancy arising from removal, disability or death of the
incumbent, by appointment of a citizen by blood of the tribe.
If any such executive shall fail, refuse or neglect, for thirty days after notice
that any instrument is ready for his signature, to appear at a place to be desig
nated by the Secretary of the Interior and execute the same, such instrument
may be approved by the Secretary of the Interior without such execution, and
when so approved and recorded shall convey legal title, and such approval shall
be conclusive evidence that such executive or chief refused or neglected after
notice to execute such instrument.
Provided, That the principal chief of the Seminole Nation is hereby authorized
to execute the deeds to allottees in the Seminole Nation prior to the time when
the Seminole government shall cease to exist.
SEC. 7. That the Secretary of the Interior shall, by written order, within
ninety days from the passage of this Act, segregate and reserve from allotment
sections one, two, three, four, five, nine, ten, eleven, twelve, thirteen, fourteen,
fifteen, the east half of section sixteen, and the northeast quarter of section six,
in township nine south, range twenty-six east, and sections five, six, seven, eight,
seventeen, eighteen, and the west half of section sixteen, in township nine south,
range twenty-seven east, Choctaw Nation, Indian Territory, except such portions
of said lands upon which substantial, permanent, and valuable improvements
were erected and placed prior to the passage of this Act and not for speculation,
but by members and freedmen of the tribes actually themselves and for them
selves for allotment purposes, and where such identical members or freedmen
of said tribes now desire to select same as portions of their allotments, and the
action of the Secretary of the Interior in making such segregation shall be con
clusive. The Secretary of the Interior shall also cause to be estimated and
appraised the standing pine timber on all of said land, and the land segregated
shall not be allotted, except as hereinbefore provided, to any member or freed-
man of the Choctaw and Chickasaw tribes. Said segregated land and the pine
timber thereon shall be sold and disposed of at public auction, or by sealed bids
for cash, under the direction of the Secretary of the Interior.
SEC. 8. That the records of each of the land offices in the Indian Territory,
should such office be hereafter discontinued, shall be transferred to and kept in
the office of the clerk of the United States court in whose district said records
are now located. The officer having custody of any of the records pertaining to
the enrollment of the members of the Choctaw, Chickasaw, Cherokee, Creek, or
Seminole tribes, and the disposition of the land and other property of said tribes,
upon proper application and payment of such fees as the Secretary of the In
terior may prescribe, may make certified copies of such records, which shall be
evidence equally with the originals thereof ; but fees shall not be demanded for
such authenticated copies as may be required by officers of any branch of the
Government nor for such unverified copies as such officer, in his discretion, may
deem proper to furnish. Such fees shall be paid to bonded officers or employees
of the Government, designated by the Secretary of the Interior, and the same or
so much thereof as may be necessary may be expended under the direction of
the Secretary of the Interior for the purposes of this section, and any unex
pended balance shall be deposited in the Treasury of the United States, as are
other public moneys.
SEC. 9. The disbursements, in the sum of one hundred and eighty-six thousand
dollars, to and on account of the loyal Seminole Indians, by James E. Jenkins,
special agent appointed by the Secretary of the Interior, and by A. J. Brown as
administrator de bonis non, under an Act of Congress approved May thirty-first,
LAWS AFFECTING THE FIVE CIVILIZED TKIBES. 91
nineteen hundred, appropriating said sum, be, and the same are hereby, ratified
and confirmed : Provided, That this shall not prevent any individual from bring
ing suit in his own behalf to recover any sum really due him.
That the Court of Claims is hereby authorized and directed to hear, consider,
and adjudicate the claims against the Mississippi Choctaws of the estate of
Charles P. Winton, deceased, his associates and assigns, for services rendered
and expenses incurred in the matter of the claims of the Mississippi Choctaws
to citizenship in the Choctaw Nation, and to render judgment thereon on the
principle of quantum meruit, in such amount or amounts as may appear equitable
or justly due therefor, which judgment, if any, shall be paid from any funds
now or hereafter due such Choctaws by the United States. Notice of such
suit shall be served on the governor of the Choctaw Nation, and the Attorney-
General shall appear and defend the said suit on behalf of said Choctaws.
SEC. 10. That the Secretary of the Interior is hereby authorized and directed
to assume control and direction of the schools in the Choctaw, Chickasaw,
Cherokee, Creek, and Seminole tribes, with the lands and all school property
pertaining thereto, March fifth, nineteen hundred and six, and to conduct such
schools under rules and regulations to be prescribed by him, retaining tribal
educational officers, subject to dismissal by the Secretary of the Interior, and
the present system so far as practicable, until such time as a public school
system shall have been established under Territorial or State government, and
proper provision made thereunder for the education of the Indian children of
said tribes, and he is hereby authorized and directed to set aside a sufficient
amount of any funds, invested or otherwise, in the Treasury of the United
States, belonging to said tribes, including the royalties on coal and asphalt in
the Choctaw and Chickasaw nations, to defray all the necessary expenses of
said schools, using, however, only such portion of said funds of each tribe as
may be requisite for the schools of that tribe, not exceeding in any one year
for the respective tribes the amount expended for the scholastic year ending
June thirtieth, nineteen hundred and five ; and he is further authorized and
directed to use the remainder, if any, of the funds appropriated by the Act of
Congress approved March third, nineteen hundred and five, " for the mainte
nance, strengthening, and enlarging of the tribal schools of the Cherokee, Creek,
Choctaw, Chickasaw, and Seminole nations," unexpended March fourth, nine
teen hundred and six, including such fees as have accrued or may hereafter
accrue under the Act of Congress approved February nineteenth, nineteen hun
dred and three, Statutes at Large, volume thirty-two, page eight hundred and
i'orty-one, which fees are hereby appropriated, in continuing such schools as may
have been established, and in establishing such new schools as he may direct,
and any of the tribal funds so set aside remaining unexpended when a public
school system under a future State or Territorial government has been estab
lished, shall be distributed per capita among the citizens of the nations, in the
same manner as other funds.
SEC. 11. That all revenues of whatever character accruing to the Choctaw,
Chickasaw, Cherokee, Creek, and Seminole tribes, whether before or after dis
solution of the tribal governments, shall, after the approval hereof, be collected
by an officer appointed by the Secretary of the Interior under rules and regula
tions to be prescribed by him ; and he shall cause to be paid all lawful claims
against said tribes which may have been contracted after July first, nineteen
hundred and two, or for which warrants have been regularly issued, such pay
ments to be made from any funds in the United States Treasury belonging to
said tribes. All such claims arising before dissolution of the tribal governments
shall be presented to the Secretary of the Interior within six months after such
dissolution, and he shall make all rules and regulations necessary to carry this
provision into effect and shall pay all expenses incident to the investigation of
the validity of such claims or indebtedness out of the tribal funds : Provided,
That all taxes accruing under tribal laws or regulations of the Secretary of the
Interior shall be abolished from and after December thirty-first, nineteen hun
dred and five, but this provision shall not prevent the collection after that date
nor after dissolution of the tribal government of all such taxes due up to and
including December thirty-first, nineteen hundred and five, and all such taxes
levied and collected after the thirty-first day of December, nineteen hundred and
five,' shall be refunded.
Upon dissolution of the tribal governments, every officer, member, or repre
sentative of said tribes, respectively, having in his possession, custody, or con
trol any money or other property of any tribe shall make full and true account
and report thereof to the Secretary of the Interior, and shall pay all money of
92 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
the tribe in his possession, custody, or control, and shall deliver all other tribal
property so held by him, to the Secretary of the Interior, and if any person shall
willfully and fraudulently fail to account for all such money and property so
held by him, or to pay and deliver the same as herein provided for sixty days
from dissolution of the tribal government, he shall be deemed guilty of embez
zlement and upon conviction thereof shall be punished by a fine of not exceeding
five thousand dollars or by imprisonment not exceeding five years, or by both
such fine and imprisonment, according to the laws of the United States relating
to such offense, and shall be liable in civil proceedings to be prosecuted in behalf
of and in the name of the tribe for the amount or value of the money or prop
erty so withheld.
SEC. 12. That the Secretary of the Interior is authorized to sell, upon such
terms and under such rules and regulations as he may prescribe, all lots in towns
in the Choctaw and Chickasaw nations reserved from appraisement and sale for
use in connection with the operation of coal and asphalt mining leases or for
the occupancy of miners actually engaged in working for lessees operating
coal and asphalt mines, the proceeds arising from such sale to be deposited in
the Treasury of the United States as are other funds of said tribes.
If the purchaser of any town lot sold under the provisions of law regarding
the sale of town sites in the Choctaw, Chickasaw, Cherokee, Creek, or Seminole
nations fail for sixty days after approval hereof to pay the purchase price or
any installment thereof then due, or shall fail for thirty days to pay the pur
chase price or any installment thereof falling due hereafter, he shall forfeit
all rights under his purchase, together with all money paid thereunder, and the
Secretary of the Interior may cause the lots upon which such forfeiture is
made to be resold at public auction for cash, under such rules and regulations
as he may prescribe. All municipal corporations in the Indian Territory are
hereby authorized to vacate streets and alleys, or parts thereof, and said streets
and alleys, when vacated, shall revert to and become the property of the
abutting property owners.
SEC. 13. That all coal and asphalt lands whether leased or unleased shall be
reserved from sale under this Act until the existing leases for coal and asphalt
lands shall have expired or until such time as may be otherwise provided by law.
SEC. 14. That the lands in the Choctaw, Chickasaw, Cherokee, Creek, and
Seminole nations reserved from allotment or sale under any Act of Congress
for the use or benefit of any person, corporation, or organization shall be con
veyed to the person, corporation, or organization entitled thereto : Provided,
That if any tract or parcel thus reserved shall before conveyance thereof be
abandoned for the use for which it was reserved by the party in whose interest
the reservation was made, such tract or parcel shall revert to the tribe and be
disposed of as other suvplus lands thereof : Provided further, That this section
shall not apply to land reserved from allotment because of the right" of any
railroad or railway company therein in the nature of an easement for right of
way, depot, station grounds, water stations, stock yards or other uses connected
with the maintenance and operation of such company's railroad, title to which
tracts may be acquired by the railroad or railway company under rules and
regulations to be prescribed by the Secretary of the Interior at a valuation to
be determined by him ; but if any such company shall fail to make payment
within the time prescribed by the regulations or shall cease to use such land
for the purpose for which it was reserved, title thereto shall thereupon vest in
the owner of the legal subdivision of which the land so abandoned is a part,
except lands within a municipality the title to which, upon abandonment, shall
vest in such municipality.
The principal chief of the Choctaw Nation and the governor of the Chickasaw
Nation are, with the approval of the Secretary of the Interior, hereby authorized
and directed to issue patents to the Murrow Indian Orphans' Home, a corpora
tion of Atoka, Indian Territory, in all cases where tracts have been allotted
under the direction of the Secretary of the Interior for the purpose of allowing
the allottees to donate the tract so allotted to said Murrow Indian Orphans'
Home.
In all cases where enrolled citizens of either the Choctaw or Chickasaw tribe
have taken their homestead and surplus allotment and have remaining over an
unallotted right to less than ten dollars on the basis of the allotment value of
said lands, such unallotted right may be conveyed by the owners thereof to the
Murrow Indian Orphans' Home aforesaid; and whenever said conveyed rights
shall amount in the aggregate to as much as ten acres of average allottable
land, land to represent the same shall be allotted to the said Murrow Indian
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 93
Orphans' Home, and certificate and patent shall issue therefor to said Murrow
Indian Orphans' Home.
And there is hereby authorized to be conveyed to said Murrow Indian Orphans'
Home, in the manner hereinbefore prescribed for the conveyance of land, the
following-described lands in the Choctaw and Chickasaw nations, to wit : Sec
tions eighteen and nineteen in township two north, range twelve east ; the south
half of the northeast quarter, the northeast quarter of the northeast quarter, the
south half of the northwest quarter of the northeast quarter, the south half of
the southeast quarter, the northeast quarter of the southeast quarter, the south
half of the northwest quarter of the southeast quarter, the northeast quarter of
the northwest quarter of the southeast quarter, the northeast quarter of the
southeast quarter of the southwest quarter, and the northwest quarter of the
northwest quarter of section twenty-four, and the northwest quarter of the
southeast quarter, the north half oil the southwest quarter of the southeast
quarter, the south half of the southwest quarter of the southwest quarter, the
northeast quarter of the soutlrsvest quarter of the southwest quarter, and the
southeast quarter of the northwest quarter of the southwest quarter of section
twenty-three, and the southwest quarter of the southwest quarter of the south
east quarter of section twenty-six, and the southeast quarter of the northwest
quarter of the northwest quarter, the south half of the northeast quarter of the
northwest quarter, the northeast quarter of the northeast quarter of the north
west quarter, and the east half of the southeast quarter of the northwest
quarter of section twenty-five, all in township two north, range eleven east,
containing one thousand seven hundred and ninety acres, as shown by the Gov
ernment survey, for the purpose of the said Home.
SEC. 15. The Secretary of the Interior shall take possession of all buildings
now or heretofore used for governmental, school, and other tribal purposes,
together with the furniture therein and the land appertaining thereto, and
appraise and sell the same at such time and under such rules and regulations
as he may prescribe, and deposit the proceeds, less expenses incident to the
appraisement and sale, in the Treasury of the United States to the credit of the
respective tribes : Provided, That in the event said lands are embraced within
the geographical limits of a State or Territory of the United States such State or
Territory or any county or municipality therein shall be allowed one year from
date of establishment of said State or Territory within which to purchase any
such lands and improvements within their respective limits at not less than the
appraised value. Conveyances of lands disposed of under this section shall be
executed, recorded, and delivered in like manner and with like effect as herein
provided for other conveyances.
SEC. 1C. That when allotments as provided by this and other Acts of Congress
have been made to all members and freedmen of the Choctaw, Chickasaw,
Cherokee, Creek, and Serninole tribes, the residue of lands in each of said na
tions not reserved or otherwise disposed of shall be sold by the Secretary of
the Interior under rules and regulations to be prescribed by him and the pro
ceeds of such sales deposited in the United States Treasury to the credit of the
respective tribes. In the disposition of the unallotted lands of the Choctaw
and Chickasaw nations each Choctaw and Chickasaw freedman shall be entitled
to a preference right, under such rules and regulations as the Secretary of the
Interior may prescribe, to purchase at the appraised value enough land to equal
with that already allotted to him forty acres in area. If any such purchaser
fails to make payment within the time prescribed by said rules and regulations,
then such tract or parcel of land shall revert to the said Indian tribes and be
sold as other surplus lands thereof. The Secretary of the Interior is hereby
authorized to sell, whenever in his judgment it may be desirable, any of the unal
lotted land in the Choctaw and Chickasaw nations, which is. not principally
valuable for mining, agricultural, or timber purposes, in tracts of not exceed
ing six hundred and forty acres to any one person, for a fair and reasonable
price, not less than the present appraised value? Conveyances of lands sold
under the provisions of this section shall be executed, recorded, and delivered
in like manner and with like effect as herein provided for other conveyances :
Provided further, That agricultural lands shall be sold in tracts of not exceed
ing one hundred and sixty acres to any one person.
SEC. 17. That when the unallotted lands and other property belonging to the
Choctaw, Chickasaw, Cherokee, Creek, and Seminole tribes of Indians have been
sold and the moneys arising from such sales or from any other source whatever
have been paid into the United States Treasury to the credit of said tribes,
respectively, and when all the just charges against the funds of the respective
94 LAWS AFFECTING THE FIVE CIVILIZED TKIBES.
tribes have been deducted therefrom, any remaining funds shall be distributed
per capita to the members then living and the heirs of deceased members whose
names appear upon the finally approved rolls of the respective tribes, such
distribution to be made under rules and regulations to be prescribed by the
Secretary of the Interior.
SEC. 18. That the Secretary of the Interior is hereby authorized to bring suit
in the name of the United States, for the use of the Choctaw, Chickasaw,
Cherokee, Creek, or Seminole tribes, respectively, either before or after the
dissolution of the tribal governments, for the collection of any moneys or
recovery of any land claimed by any of said tribes, whether such claim shall
arise prior to or after the dissolution of the tribal governments, and the United
States courts in Indian Territory are hereby given jurisdiction to try and
determine all such suits, and the Secretary of the Interior is authorized to pay
from the funds of the tribe interested any costs and necessary expenses in
curred in maintaining and prosecuting such suits: Provided, That proceedings
to which any of said tribes is a party pending before any court or tribunal at
the date of dissolution of the tribal governments shall not be thereby abated
or in anywise affected, but shall proceed to final disposition.
Where suit is now pending, or may hereafter be filed in any United States
court in the Indian Territory, by or on behalf of any one or more of the Five
Civilized Tribes to recover moneys claimed to be due and owing to such tribe,
the party defendants to such suit shall have the right to set up and have
adjudicated any claim it may have against such tribe ; and any balance that
may be found due by any tribe or tribes shall be paid by the Treasurer of the
United States out of any funds of such tribe or tribes upon the filing of the
decree of the court with him.
SEC. 19. That no full-blood Indian of the Choctaw, Chickasaw, Cherokee,
Creek or Seminole tribes shall have power to alienate, sell, dispose of, or
encumber in any manner any of the lands allotted to him for a period of
twenty-five years from and after the passage and approval of this Act, unless
such restriction shall, prior to the expiration of said period, be removed by Act
of Congress ; and for all purposes the quantum of Indian blood possessed by
any member of said tribes shall be determined by the rolls of citizens of said
tribes approved by the Secretary of the Interior: Provided, however. That
such full-blood Indians of any of said tribes may lease any lands other than
homesteads for more than one year under such rules and regulations as may
be prescribed by the Secretary of the Interior ; and in case of the inability of
any full-blood owner of a homestead, on account of infirmity or age, to work
or farm his homestead, the Secretary of the Interior, upon proof of such in
ability, may authorize the leasing of such homestead under such rules and
regulations: Provided further, That conveyances heretofore made by members
of any of the Five Civilized Tribes subsequent to the selection of allotment
and subsequent to removal of restriction, where patents thereafter issue, shall
not be deemed or held invalid solely because said conveyances were made prior
to issuance and recording or delivery of patent or deed ; but this shall not be
held or construed as affecting the validity or invalidity of any such conveyance,
except as hereinabove provided ; and every deed executed before, or for the
making of which a contract or agreement was entered into before the removal
of restrictions, be and the same is hereby, declared void : Provided further, That
all lands upon which restrictions are removed shall be subject to taxation, and
the other lands shall be exempt from taxation as long as the title remains in
the original allottee.
SEC. 20. That after the approval of this Act all leases and rental contracts,
except leases and rental contracts for not exceeding one year for agricultural
purposes for lands other than homesteads, of full-blood allottees of the Choc
taw, Chickasaw, Cherokee, Creek, and Seminole tribes shall be in writ-ing and
subject to approval by the Secretary of the Interior and shall be absolutely void
and of no effect without such approval : Provided, That allotments of minors
and incompetents may be rented or leased under order of the proper court:
Provided further, That all leases entered into for a period of more than one
year shall be recorded in conformity to the law applicable to recording instru
ments now in force in said Indian Territory.
SEC. 21. That if any allottee of the Choctaw, Chickasaw, Cherokee, Creek, or
Seminole tribes die intestate without widow, heir or heirs, or surviving spouse,
seized of all or any portion of his allotment prior to the final distribution of the
tribal property, and such fact shall be known by the Secretary of the Interior,
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 95
the lands allotted to him shall revert to the tribe and be disposed of as herein
provided for surplus lands ; but if the death of such allottee be not known by
the Secretary of the Interior before final distribution of the tribal property, the
land shall escheat to and vest in such State or Territory as may be formed to
include said lands. That heirs of deceased Mississippi Choctaws who died
before making proof of removal to and settlement in the Choctaw country and
within the period prescribed by law for making such proof may within sixty
days from the passage of this Act appear before the Commissioner to the Five
Civilized Tribes and make such proof as would be required if made by such
deceased Mississippi Choctaws ; and the decision of the Commissioner to the
Five Civilized Tribes shall be final therein, and no appeal therefrom shall be
allowed.
SEC. 22. That the adult heirs of any deceased Indian of either of the Five
Civilized Tribes whose selection has been made, or to whom a deed or patent
has been issued for his or her share of the land of the tribe to which he or she
belongs or belonged, may sell and convey the lands inherited from such de
cedent ; and if there be both adult and minor heirs of such decedent, then such
minors may join in a sale of such lands by a guardian duly appointed by the
proper United States court for the Indian Territory. And in case of the
organization of a State or Territory, then by a proper court of the county in
which said minor or minors may reside or in which said real estate is situated,
upon an order of such court made upon petition filed by guardian. All con
veyances made under this provision by heirs who are full-blood Indians are to
be subject to the approval of the Secretary of the Interior, under such rules and
regulations as he may prescribe.
SEC. 23. Every person of lawful age and sound mind may by last will and
testament devise and bequeath all of his estate, real and personal, and all
interest therein : Provided, That no will of a full-blood Indian devising real
estate shall be valid, if such last will and testament disinherits the parent, wife,
spouse, or children of such full-blood Indian, unless acknowledged before and
approved by a judge of the United States court for the Indian Territory, or a
United States commissioner.
SEC. 24. That in the Choctaw, Chickasaw, and Seminole nations public high
ways or roads two rods in width, being one rod on each side of the section line,
may be established on all section lines; and all allottees, purchasers, and others
shall take title to such land subject to this provision, and if buildings or other
improvements are damaged in consequence of the establishment of such public
highways or roads, such damages accruing prior to the inauguration of a State
government shall be determined under the direction of the Secretary of the
Interior and be paid for from the funds of said tribes, respectively.
All expenses incident to the establishment of public highways or roads in the
Creek, Cherokee, Choctaw, Chickasaw, and Seminole nations, including clerical
hire, per diem, salary, and expenses of viewers, appraisers, and others, shall be
paid under the direction of the Secretary of the Interior from the funds of the
tribe or nation in which such public highways or roads are established. Any
person, firm, or corporation obstructing any public highway or road, and who
shall fail, neglect, or refuse for a period of ten days after notice to remove or
cause to be removed any and all obstructions from such public highway or road,
shall be deemed guilty of a misdemeanor, and upon conviction shall be fined not
exceeding ten dollars per day for each and every day in excess of said ten days
which said obstruction is permitted to remain : Provided, however, That notice
of the establishment of public highways or roads need not be given to allottees
or others, except in cases where such public highways or roads are obstructed,
and every person obstructing any such public highway or road, as aforesaid,
shall also be liable in a civil action for all damages sustained by any person who
has in any manner whatever been damaged by reason of such obstruction.
SEC. 25. That any light, or power company doing business within the limits
of the Indian Territory, in compliance with the laws of the United States that
are now or may be in force therein, be, and the same are hereby, invested and em
powered with the right of locating, constructing, owning, operating, using, and
maintaining canals, reservoirs, auxiliary steain works, and a dam or dams
across any nonnavigable stream within the limits of said Indian Territory, for
the purpose of obtaining a sufficient supply of water to manufacture and generate
water, electric, or other power, light, and heat and to utilize and transmit and
distribute such power, light, and heat to other places for its own use or other
individuals or corporations, and the right of locating, constructing, owning,
operating, equipping, using, and maintaining the necessary pole lines and con-
96 LAWS AFFECTING THE FIVE CIVILIZED TKIBES.
duits for the purpose of transmitting and distributing such power, light, and
heat, to other places within the limits of said Indian Territory.
That the right to locate, construct, own, operate, use, and maintain such dams,
canals, reservoirs, auxiliary steam works, pole lines, and conduits in or through
the Indian Territory, together with the right to acquire, by condemnation,
purchase or agreement between the parties, such land as it may deem necessary
for the locating, constructing, owning, operating, using, and maintaining of such
dams, canals, reservoirs, auxiliary steam works, pole lines, and conduits in or
through any land held by any Indian tribe or nation, person, individual, cor
poration, or municipality in said Indian Territory, or in or through any lands
in said Indian Territory which have been or may hereafter be allotted in sever-
alty to any individual Indian or other person under any law or treaty, whether
the same have or have not been conveyed to the allottee, with full power of
alienation, is hereby granted to any company complying with the provisions of
this Act: Provided, That the purchase from and agreements with individual
Indians, where the right of alienation has not theretofore been granted by law,
shall be subject to approval by the Secretary of the Interior.
In case of the failure of any light, or power company to make amicable settle
ment with any individual owner, occupant, allottee, tribe, nation, corporation,
or municipality for any lands or improvements sought to be condemned or
appropriated under this Act all compensation and damages to be paid to the
dissenting individual owner, occupant, allottee, tribe, nation, corporation, or
municipality by reason of the appropriation and condemnation of said lands
and improvements shall be determined as provided in sections fifteen and seven
teen of an Act of Congress entitled "An act to grant a right of way through
Oklahoma Territory and the Indian Territory to the Enid and Anadarko Rail
way Company, and for other purposes," approved February twenty-eighth, nine
teen hundred and two (Public Numbered Twenty-six), and all such proceedings
hereunder shall conform to said sections, except that sections three and four of
said Act shall have no application, and except that hereafter the plats required
to be filed by said Act shall be filed with the Secretary of the Interior and with
the Commissioner to the Five Civilized Tribes, and where the words " Principal
Chief or Governor " of any tribe or nation occur in said Act, for the purpose of
this Act there is inserted the words Commissioner to the Five Civilized Tribes.
Whenever any such dam or dams, canals, reservoirs and auxiliary steam works,
pole lines and conduits are to be constructed within the limits of any incor
porated city or town in the Indian Territory, the municipal authorities of such
city or town shall have the power to regulate the manner of construction
therein, and nothing herein contained shall be so construed as to deny the right
of municipal taxation in such cities and towns : Provided, That all rights granted
hereunder shall be subject to the control of the future Territory or State within
which the Indian Territory may be situated.
SEC. 26. That in addition to the powers now conferred by law, all municipali
ties in the Indian Territory having a population of over two thousand to be
determined by the last census taken under any provision of law or ordinance of
the council of such municipality, are hereby authorized and empowered to order
improvements of the streets or alleys or such parts thereof as may be included
in an ordinance or order of the common council with the consent of a majority
of the property owners whose property as herein provided is liable to assess
ment therefor for the proposed improvement; and said council is empowered
and authorized to make assessments and levy taxes with the consent of a
majority of the property owners wThose property is assessed, for the purpose of
grading, paving, macadamizing, curbing, or guttering streets and alleys, or
building sidewalks upon and along any street, roadway or alley within the limits
of such municipality, and the cost of such grading, paving, macadamizing, curb
ing, guttering or sidewalk constructed, or other improvements under authority
of this section, shall be so assessed against the abutting property as to require
each parcel of land to bear the cost of such grading, paving, macadamizing,
curbing, guttering or sidewalk, as far as it abuts thereon, and in the case of
streets or alleys to the center thereof; and the cost of street intersections or
crossings may be borne by the city or apportioned to the quarter blocks abut
ting thereon upon the same basis. The special assessments provided for by this
section and the amount to be charged against each lot or parcel of land shall
be fixed by the city council or under its authority and shall become a lien on
such abutting property, which may be enforced as other taxes are enforced
under the laws in force in the Indian Territory. The total amount charged
against any tract or parcel of land shall not execeed twenty per centum of its
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 97
assessed value, and there shall not be required to be paid thereon exceeding one
per centum per annum on the assessed value and interest at six per centum on
the deferred payments.
For the purpose of paying for such improvements the city council of such
municipality is hereby authorized to issue improvement script or certificates
for the amount due for such improvements, said script or certificates to be pay
able in annual installments and to bear interest from date at the rate of six
per centum per annum, but no. improvement script shall be issued or sold for less
than its par value. All of said municipalities are hereby authorized to pass all
ordinances necessary to carry into effect the above provisions and for the pur
pose of doing so may divide such municipality into improvement districts.
That the tangible property of railroad corporations (exclusive of rolling
stock) located within the corporate limits of incorixmited cities and towns in
the Indian Territory shall be assessed and taxed in proportion to its value the
same as other property is assessed and taxed in such incorporated cities and
towns ; and all such city or town councils are hereby empowered to pass such
ordinances as may be necessary for the assessment, equalization, levy and
collection, annually, of a tax on all property except as herein stated within the
corporate limits and for carrying the same into effect: Provided, That should
any person or corporation feel aggrieved by any assessment of property in the
Indian Territory, an appeal from such assessment may be taken within sixty
days by original petition to be filed in United States court in the district in
which such city or town is located, and the question of the amount and legality
of such assessment, and the validity of the ordinance under which such assess
ment is made may be determined by such court and the costs of such proceed
ing shall be taxed and apportioned between the parties as the court shall find
to be just and equitable.
SEC. 27. That the lands belonging to the Choctaw, Chickasaw, Cherokee,
Creek, or Seminole tribes, upon the dissolution of said tribes, shall not become
public lands nor property of the United States, but shall be held in trust by the
United States for the use and benefit of the Indians respectively comprising
each of said tribes, and their heirs as the same shall appear by the rolls as
finally concluded as heretofore and hereinafter provided for : Provided, That
nothing herein contained shall interfere with any allotments heretofore or
hereafter made or to be made under the provisions of this or any other Act of
Congress.
SEC. 28. That the tribal existence and present tribal governments of the
Choctaw, Chickasaw, Cherokee, Creek, and Seminole tribes or nations arc
hereby continued in full force and effect for all purposes authorized by law,
until otherwise provided by law, but the tribal council or legislature in any
of said tribes or nations shall not be in session for a longer period than thirty
days in any one year: Provided, That no act, ordinance, or resolution (except
resolutions of adjournment) of the tribal council or legislature of any of said
tribes or nations shall be of any validity until approved by the President of the
United States: Provided further, That no contract involving the payment or
expenditure of any money or affecting any property belonging to any of said
tribes or nations made by them or any of them or by any officer thereof, shall
be of any validity until approved by the President of the United States.
SEC. 29. That all Acts and parts of Acts inconsistent with the provisions of
this Act be, and the same are hereby, repealed.
Approved, April 20, 1900.
[PUBLIC — No. 258.]
AN ACT Making appropriations for the current and contingent expenses of the Indian
Department, for 'fulfilling treaty stipulations with various Indian tribes, and for other
purposes, for the fiscal year ending June thirtieth, nineteen hundred and seven.
He it enacted ly the Renatc and House of Representatives of the United States
of America in Coni/rcxx axxembled, That the following sums be, aiul they are
hereby, appropriated, out of any money in the Treasury not otherwise appro
priated, for the purpose of paying the current and contingent expenses of the
Indian Department, for fulfilling treaty stipulations with various Indian tribes,
and in full compensation for all offices the salaries for which are specially pro
vided for herein for the service of the fiscal year ending June thirtieth, nine
teen hundred and seven, namely :
*******
33753 — 00 M 7
98 LAWS AFFECTING THE FIVE CIVILIZED TKIBES.
To enable the Commissioner of Indian Affairs, under the direction of the Secre
tary of the Interior, to take action to suppress the traffic of intoxicating liquors
among Indians, twenty-five thousand dollars, fifteen thousand dollars of which
to be used exclusively in the Indian Territory and Oklahoma.
INDIAN TERRITORY.
For pay of Indian agent at the Union Agency, Indian Territory, three thou
sand dollars.
For special clerical force in the office of the United States Indian agent, Union
Agency, and miscellaneous expenses in connection with entering of remittances
received in account of payments of town lots and issuance of patents, and con
veying same, ten thousand dollars.
For clerical work and labor connected with the sale and leasing of Creek and
the leasing of Cherokee lands, thirty thousand dollars.
That there shall be reserved from allotment one acre of the unallotted lands
of the Choctaw and Chickasaw tribes for each church under the control of or
used exclusively by the Choctaw or Chickasaw freedmen ; and there shall be
reserved from allotment one acre of said lands for each school conducted by
Choctaw or Chickasaw freedmen, under the supervision of the authorities of
said tribes and officials of the United States, and patents shall issue, as provided
by law, to the person or organization entitled to receive the same. There are
also reserved such tracts from said lands as the Secretary of the Interior may
approve for cemeteries ; and such cemeteries may be reserved, respectively, for
Indians, freedmen, and whites, as the Secretary may designate.
That the Secretary of the Interior is hereby authorized and empowered to
segregate and reserve from allotment, and to cancel any filings or applications
that may heretofore have been made with a view to allotting, the following-
described lands, situate in the Choctaw Nation, Indian Territory, to wit: The
northwest quarter of section twelve, in township five north, range fifteen east,
containing in the aggregate one hundred and sixty acres more or less. That
the provisions of sections fifty-six to sixty-three, inclusive, of the Act of Con
gress approved July first, nineteen hundred and two, entitled "An Act to ratify
and confirm an agreement with the Choctaw and Chickasaw tribes, and for
other purposes," be, and the same are hereby, made applicable to the lands above
described, the same as if the said described lands had been made a part of the
segregation as contemplated by said sections fifty-six to sixty-three, inclusive,
of said above Act approved July first, nineteen hundred and two: Provided,
That the Secretary of the Interior may, in his discretion, add to and make a
part of the coal mining leases now in effect, and to which said lands are con
tiguous, the northwest quarter of section twelve, in township five north, of
range fifteen east, Government subdivisions being followed as nearly as possible :
Provided further, That the holder or holders of the lease or leases to which
such lands shall be added shall, before the same are added, pay the Indian or
Indians 'who have filed upon or applied for such lands as their allotments, or
who are in possession thereof, the value of the improvements placed on the land
by said Indian or Indians, such value to be determined under the direction of
the Secretary of the Interior.
That there is appropriated, out of any money in the United States Treasury
not otherwise appropriated, the sum of one thousand two hundred and thirty-
six dollars, to pay Toney E. Proctor two dollars per day in lieu of subsistence
from August thirteenth, eighteen hundred and ninety-nine, until April twenty-
third, nineteen hundred and one, while serving as town-site appraiser of
Wagoner, Indian Territory, Creek Nation.
Removal of intruders, Five Civilized Tribes : For the purpose of removing
intruders and placing allottees in unrestricted possession of their allotments, to
be expendqd under the direction of the Secretary of the Interior, twenty thou
sand dollars.
That the Secretary of the Interior be, and he is hereby, authorized to make
such contract as in his judgment seems advisable for the care of orphan Indian
children at the Whittaker Home, Pry or Creek, Indian Territory, and for the
purpose of carrying this provision into effect, the sum of ten thousand dollars,
or so much thereof as is necessary, is hereby appropriated, out of any moneys
in the Treasury not otherwise appropriated.
Ten thousand dollars, or so much thereof as may be necessary to be imme
diately available, in the payment of indebtedness already incurred, neces-
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 99
sarily expended in suppressing the spread of smallpox in the Indian Territory
during the fiscal year ended June thirtieth, nineteen hundred, all accounts to
be first examined and approved by the Secretary of the Interior as just and
reasonable before being paid.
To enable the Secretary of the Interior to carry out the provisions of the
Act approved April twenty-first, nineteen hundred and four, for the removal
of restrictions' upon the alienation of lands of all allottees of the Five Civil
ized Tribes, eighteen thousand dollars : Provided, That so much as may be nec
essary may be used in the employment of clerical force in the office of the Com
missioner of Indian Affairs.
For general incidental expenses of the Indian Service in the Indian Terri
tory, and for pay of employees, eighteen thousand dollars.
To carry out the provisions of section ten of the supplemental agreements
with the Creek Nation, as ratified by the Act of June thirtieth, nineteen hun
dred and two, and section thirty-seven of the Cherokee agreement, as ratified
by the Act of July first, nineteen hundred and two, eight thousand dollars.
INSPECTOR.
For clerical and incidental expenses of the United States inspector's office,
Indian Territory, in accordance with the provisions of section twenty-seven of
the Act of June twenty-eighth, eighteen hundred and ninety-eight, entitled
"An Act for the protection of the people of the Indian Territory, and for other
purposes," ten thousand dollars.
To enable the Secretary of the Interior to investigate, or cause to be investi
gated, any lease of allotted land in the Indian Territory which he has reason
to believe has been obtained by fraud, or in violation of the terms of existing
agreements with any of the Five Civilized Tribes, as provided by the Act
approved March third, nineteen hundred and five, ten thousand dollars.
SCHOOLS.
For the maintenance, strengthening, and enlarging of the tribal schools of
the Cherokee, Creek, Choctaw, Chickasaw, and Seminole nations, and making
provision for the attendance of children of parents of other than Indian blood
therein, and the establishment of new schools under the control of the Depart
ment of the Interior, the sum of one hundred and fifty thousand dollars, or
so much thereof as may be necessary, to be placed in the hands of the Secre
tary of the Interior, and disbursed by him under such rules and regulations
as he may prescribe.
That the Court of Claims be, and is hereby, authorized and empowered, upon
final determination of the case or cases involving the claim of the intermarried
white persons in the Cherokee Nation to share in the common property of the
Cherokee people, and to be enrolled for such purpose (being numbers four
hundred and nineteen, four hundred and twenty, four hundred and twenty-one,
and four hundred and twenty-two, on the docket of the United States Supreme
Court for October term, nineteen hundred and five), to ascertain and determine
the amount to be paid the attorney and counsel of record for the Cherokee
Indians by blood in said cases, in reimbursement of necessary expenses in
curred, and as reasonable compensation for services rendered in such proceed
ings not exceeding sixty thousand dollars. Such court shall further designate
the persons, class, or body of persons by whom such payment should equitably
be made and the fund or funds held by the United States out of which the
same shall be paid and enter a decree for the amount so found ; and the sum
necessary to pay the same is hereby appropriated out of the fund or funds
designated by the court, and the Secretary of the Treasury shall pay the same:
Provided, That notice of hearing of such application to determine such com
pensation shall be given the governor of the Cherokee Nation or the attorney
of record thereof and the Secretary of the Interior, at least thirty days before
the day of said hearing.
The amount awarded by the court when paid shall be in full for all expenses
and services of said attorney and counsel in connection with the claim of the
intermarried whites.
FIVE CIVILIZED TRIBES.
For the completion of the work heretofore required by law to be done by the
Commission to the Five Civilized Tribes, two hundred thousand dollars. Said
100 LAWS AFFECTING THE FIVE CIVILIZED TKIBES.
appropriation to be disbursed under the direction of the Secretary of the
Interior.
That the Commissioner to the Five Civilized Tribes is hereby authorized to
add the names of the following persons to the final roll of the citizens by blood
of the Choctaw tribe: Malinda Pickens, Morris Battiest, and Samuel Sydney
Burris ; and the names of the following persons to the final roll of the citizens
by blood of the Chickasaw tribe ; Rebecca Pitts, Maggie Wade ; and the names
of Nancy Bigknife, Alice Owen and her children, to the final roll of the citizens
by blood of the Cherokee tribe, the said persons being either Choctaw, Chicka
saw, or Cherokee Indians by blood, whose names, through neglect on their
part or on the part of their parents, have been omitted from the tribal rolls :
Pro ruled, That the enrollment of said persons by the Commissioner to the Five
Civilized Tribes shall not be objected to by the said tribes, and shall be ap
proved by the Secretary of the Interior.
That the Secretary of the Interior shall upon completion of the approved
rolls, have prepared and printed in a permanent record book such rolls of the
Five Civilized Tribes and that one copy of such record book shall be deposited
in the office of the recorder in each of the recording districts for public inspec
tion. That any person who shall copy any roll of citizenship of the Creek,
Cherokee, Choctaw, Chickasaw, or Seminole tribes of Indians, prepared by or
under the direction of the Secretary of the Interior, the Commission to the
Five Civilized Tribes or the Commissioner to the Five Civilized Tribes, whether
completed or not, or any person who shall, directly or indirectly, exhibit, sell,
offer to sell, give away, offer to give away, or in any manner or by any means
offer to dispose of, or who shall have in his possession, any such roll or rolls,
any copy of the same, or a copy of any portion thereof, shall be deemed guilty
of a misdemeanor, and punished by imprisonment for not exceeding two years :
Provided, That this Act shall not apply to any persons authorized by the Secre
tary of the Interior, the Commissioner of Indian Affairs, or the Commissioner
to the Five Civilized Tribes to copy, exhibit, or use such rolls, or a copy thereof,
for any purpose necessary or required by law.
No distinction shall be made in the enrollment of full-blood Mississippi Choc-
taws who have been identified by the United States Commission to the Five
Civilized Tribes, and who had removed to the Indian Territory prior to March
fourth, nineteen hundred and six, and who shall furnish proof thereof.
CHOCTAWS. (Treaty.)
For permanent annuity, per second article of treaty of November sixteenth,
eighteen hundred and five, and thirteenth article of treaty of June twenty-
second, eighteen hundred and fifty-five, three thousand dollars ;
For permanent annuity for support of light horsemen, per thirteenth article
of treaty of October eighteenth, eighteen hundred and twenty, and thirteenth
article of treaty of June twenty-second, eighteen hundred and fifty-five, six
hundred dollars ;
For permanent annuity for support of blacksmith, per sixth article of treaty
of October eighteenth, eighteen hundred and twenty, ninth article of treaty of
January twentieth, eighteen hundred and twenty-five, and thirteenth article
of treaty of June twenty-second, eighteen hundred and fifty-five, six hundred
dollars ;
For permanent annuity for education, per second and thirteenth articles of
last two treaties named above, six thousand dollars ;
For permanent annuity for iron and steel, per ninth article of treaty of
January twentieth, eighteen hundred and twenty-five, and thirteenth article of
treaty of June twenty-second, eighteen hundred and fifty-five, three hundred and
twenty dollars ;
For interest on three hundred and ninety thousand two hundred and fifty-
seven dollars and ninety-two cents, at five per centum per annum, for education,
support of the government, and other beneficial purposes, .under the direction of
the general council of the Choctaws, in conformity with the provisions contained
in the ninth and thirteenth articles of treaty of January twentieth, eighteen
hundred and twenty-five, and treaty of June twenty-second, eighteen hundred
and fifty-five, nineteen thousand five hundred and twelve dollars and eighty-nine
cents ;
In all, thirty thousand and thirty-two dollars and eighty-nine cents.
And provided, The Secretary of the Interior is hereby authorized in case after
investigation he deems it for the best interest of the tribe to set aside six nun-
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 101
dred and forty acres of Choctaw land for the benefit of Old Goodland Indian
Orphan Industrial School, and to convey the same to said school in conjunction
with the executive of the Choctaw tribe.
That section two of the Act entitled "An Act to provide for the final disposition
of the affairs of the Five Civilized Tribes in the Indian Territory, and for other
purposes," approved April twenty-sixth, nineteen hundred and six, be, and the
same is hereby, amended by striking out thereof the words "Provided further,
That nothing herein shall be construed so as to hereafter permit any person to
file an application for enrollment in any tribe where the date for filing applica
tion has been fixed by agreement between said tribe and the United States: Pro
vided further, That nothing herein shall apply to the intermarried whites in the
Cherokee Nation whose cases are now pending in the Supreme Court of the
United States." And insert in said Act in lieu of the matter repealed, the fol
lowing: Provided further, That nothing herein shall be construed so as hereafter
to permit any person to file an application for enrollment or to be entitled to
enrollment in any of said tribes, except for minors the children of Indians by
blood, or of freedmen members of said tribes, or of Mississippi Choctaws identi
fied under the fourteenth article of the treaty of eighteen hundred and thirty,
as herein otherwise provided, and the fact that the name of a person appears
on the tribal roll of any of said tribes shall not be construed to be an application
lor enrollment.
That section fifteen of the Act entitled "An Act to provide for the final dis
position of the affairs of the Five Civilized Tribes in the Indian Territory, and
for other purposes/' approved April twenty-sixth, nineteen hundred and six,
be, and the same is hereby, amended by inserting after the word " conveyances,"
at the end of said section, the following: "Provided, That this section shall not
take effect until the date of the dissolution of the tribal governments of the
Choctaw, Chickasaw, Cherokee, Creek, and Seminole tribes."
That, in addition to the places now provided by law for holding courts in the
central judicial district of Indian Territory, terms of the district court of the
central district shall hereafter be held at the town of Wilburton, and the United
States judge of said central district is hereby authorized to establish by metes
and bounds a recording district for said court to be known as recording district
numbered thirty. That all laws regulating the holding of courts in the Indian
Territory shall be applicable to the court hereby created at the town of
Wilburton.
That there is hereby created in the Cherokee Nation, Indian Territory, an
additional recording district, to be known as district numbered twenty-seven.
Said district shall be bounded as follows: Beginning at the northwest corner
of the Cherokee Nation, thence east along the north boundary line of the Cher
okee Nation to the northeast corner of section seventeen, in township twenty-
nine north, of range fourteen east; thence south to the township line at the
corner of section thirty-two ; thence west along said township line to the
northeast corner of section four, in township twenty-eight north, of range four
teen east; thence south with the section line to the township line between town
ships twenty-three and twenty-four ; thence west to the dividing line between
the Osage and Chreokee nations ; thence north along said dividing line between
the Osage and Cherokee nations to the place of beginning.
That not less than two terms of court in each year shall be held at the town
of Bartlesville, in said recording district numbered twenty-seven, arid a United
States commissioner's court shall be established in said recording district num
bered twenty-seven and maintain an office at Bartlesville, in said district, and
an Act of Congress entitled "An Act providing for the recording of deeds and
other conveyances and instruments in writing in Indian Territory and for other
purposes," approved February nineteenth, nineteen hundred and three, shall
have the same force and effect in said district numbered twenty-seven as it has
in the districts created by said Act approved February nineteenth, nineteen
hundred and three.
That there is hereby created in Indian Territory an additional recording
district, to be known as recording district numbered twenty-eight. Said district
shall be bounded as follows : Beginning at the southwest corner of the Cherokee
Nation ; thence north along the western boundary line of the Cherokee Nation
to the township line between townships twenty-three and twenty-four north;
thence east along the township line between townships twenty-three and twenty-
four north to the range line between ranges fourteen and fifteen east ; thence
south along the range line between ranges fourteen and fifteen east to the town
ship line between townships sixteen and seventeen north ; thence west along the
102 LAWS AFFECTING THE FIVE CIVILIZED TEIBES.
township line between townships sixteen and seventeen north to the range lino
between ranges twelve and thirteen east; thence north along the range line
between ranges twelve and thirteen east to the township line between townships
eighteen and nineteen north ; thence west along the township line between town
ships eighteen and nineteen north to the range line between ranges ten and
eleven east: thence north along said range line to the Arkansas River; thence
northwest up said river to a point where it crosses the north line of the Creek
Nation ; thence east along the north line of the Creek Nation to the place of
beginning.
That the judge of the western judicial district of Indian Territory shall hold
not less than three terms of court in each year at the town of Tulsa, in said
recording district numbered twenty-eight ; and a United States commissioner's
court shall be established and maintained in said recording district numbeivd
twenty-eight, which commissioner shall maintain his office at Tulsa, in said dis
trict, and an Act of Congress entitled "An Act providing for the recording of
deeds and other conveyances and instruments in writing in Indian Territory,
and for other purposes," approved February nineteenth, nineteen hundred and
three, shall have the same force and effect in said recording district numbered
twenty-eight as it has in the districts created by the said Act approved February
nineteenth, nineteen hundred and three.
That all that portion of territory included in said recording district num
bered twenty-eight, as herein defined, lying within the boundaries of the Chero
kee Nation, and being now a part of the northern judicial district of Indian Ter
ritory, shall become, and the same is hereby, attached to and made a part of the
western judicial district of Indian Territory; and all of the power, authority,
and jurisdiction of the United States court of the western judicial district of
Indian Territory and of the judges and marshals thereof are hereby extended to
and put in force over all the territory included within the boundaries of said
twenty-eighth recording district as herein defined and established.
That in addition to the places now provided by law for holding courts in the
southern judicial district of Indian Territory courts shall be held in the town
of Duncan, and all laws regulating the holding of the courts in the Indian Ter
ritory shall be applicable to the said court hereby created in tiie said town of
Duncan.
That the territory next hereinafter described shall be known as recording dis
trict numbered twenty-nine, beginning at a point where township line between
townships two and three north reaches the east boundary line of Oklahoma
Territory ; thence east on said township line twenty-four miles to where it in
tersects with range line three and four west ; thence south on said range line
twelve miles to where it intersects the base line between townships one north
and one south ; thence east along said base line six miles to the range line
between ranges two and three west; thence south twelve miles along said
range line to the township line between townships two and three south ; thence
west thirty miles along said township line to where it intersects with the east
line of Oklahoma Territory; thence north along said line twenty-four miles to
the place of beginning; and the place of recording and holding court in said
district shall be Duncan.
* ******
That the Court of Claims is hereby authorized to hear and adjudicnto (lie
claim of Joseph I*. T. Fish, an Indian of nonage, born January twenty-first,
eighteen hundred and ninety-five, on the Qua paw Reservation, son of Leander J.
Fish, a Shawnee by birth, who was duly enrolled on the Quapaw Agency rolls
and an allottee of lands therein, to be enrolled and participate in the allotment
of lands of the Shawnee-Cherokee Indians, and to have full jurisdiction to hear,
try, and determine the claims of said minor child to enrollment, the judgment of
said court to be certified to the Secretary of the Interior; and, if the court
shall determine that the said minor child is entitled to enrollment with said
tribe, the Secretary of the Interior shall cause his name to be so enrolled and
lands allotted as to other minor children in said tribe.
REMINOLES. ( Treaty. )
For five per centum interest on two hundred and fifty thousand dollars, to
be paid as annuity, per eighth article of treaty of August seventh, eighteen
hundred and fifty-six, twelve thousand five hundred dollars ;
For five per centum interest on two hundred and fifty thousand dollars, to
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 103
be paid as annuity (they having joined their brethren West), per eighth
article of treaty of August seventh, eighteen hundred and fifty-six ; twelve
thousand five hundred dollars ;
For interest on fifty thousand dollars, at the rate of five per centum per
annum, to be paid annually for the support of schools, as per third article of
treaty of March twenty-first, eighteen hundred and sixty-six, two thousand five
hundred dollars ;
For interest on twenty thousand dollars, at the rate of five per centum per
annum, to be paid annually for the support of the Semiuole government, as
per same article, same treaty, one thousand dollars ;
In all, twenty-eight thousand five hundred dollars.
That the Secretary of the Interior is hereby authorized and directed to pay,
out of any money in the Treasury belonging to the Creek Nation, to C. W.
Turner, of Muskogee, Indian Territory, Creek warrant numbered twenty-six
hundred aiid seventy-one, drawn on the Creek treasurer on March twelfth,
eighteen hundred and ninety -eight, for one thousand dollars, and now unpaid,
which said warrant was drawn under an appropriation act of the Creek council,
was presented to the Creek treasurer for payment, and is yet unpaid: Provided,
That before any payment is made to said Turner he shall prove, to the satis
faction of the Secretary of the Interior, that he is an innocent holder of said
warrant and was a purchaser of the same in good faith.
That the Secretary of the Interior is hereby authorized and directed to pay,
out of any money in the Treasury of the United States belonging to the Chicka-
saw Nation, the amount due the State National Bank of Denison, Texas, upon
a note given by the governor and treasurer of the Chickasaw Nation, under an
Act entitled "An Act authorizing and requesting the governor and treasurer of
the Chickasaw Nation to borrow the sum of twenty-six thousand one hundred
and ninety-five dollars and thirty-five cents to pay the expenses of the present
session of the legislature, exclusive of the four dollars per day allowed by law
for the expenses of the members and officers of the present session of the legis
lature," approved by the governor of the Chickasaw Nation on December
twentieth, nineteen hundred and five.
That no person who has been, now is or may hereafter be an employee of the
Government under the Commission to the Five Civilized Tribes, or its successor,
shall be permitted to practice in any manner as an agent or attorney before the
Commissioner to the Five Civilized Tribes within two years after said person
shall cease to be an employee of the Government.
That the Secretary of the Interior is authorized, under such rules and regu
lations as he may prescribe, to continue the publication of the Cherokee Advo
cate, at Tahlequah, Indian Territory, until June thirtieth, nineteen hundred
and seven, and to pay the expense of the same out of the tribal funds of the
Cherokee Nation.
That the Court of Claims is hereby authorized and directed to hear and
adjudicate the claims against the Choctaw Nation of the heirs of Peter P.
Pitchlynn, deceased, and to render judgment thereon in such amounts, if any,
as may appear to be equitably due. Said judgment, if any, in favor of the
heirs of Pitchlynn, shall be paid out of any funds in the Treasury of the United
States belonging to the Choctaw Nation, said judgment to be rendered on the
principle of quantum meruit for services rendered and expenses incurred.
Notice of said suit shall be served on the governor of the Choctaw Nation, and
the Attorney-General of the United States shall appear and defend in said suit
on behalf of said nation.
That to enable the Red River Bridge Company, of Denison, Texas, to acquire
land necessary to the proper conduct and operation of its property, Wyatt S.
Hawkins, an intermarried citizen of the Chickasaw Nation, is hereby authorized
to sell and convey the whole or any part of the homestead allotted to him as
such intermarried citizen, and all restriction on the alienation of such home
stead imposed by any existing law is hereby removed.
That all restrictions as to the sale, incumbrance, or taxation of the lands here
tofore allotted to William P. Ross, of Tahlequah, Maud W. Ross, Edward G.
Ross, Mrs. Josephine Rider, William P. Ross of Bartlesville, Nevermore Trainer,
Annie C. Bennett, Nathan F. Adams, Annie Potts, and Sam Spade, Famous Dew
numbered twenty-eight thousand five hundred, Alexander Procter numbered
twenty-eight thousand three hundred and thirty-two, Lizzie Sunday numbered
fifteen hundred and twenty-two, Sarah Ooyusuttah numbered twenty thousand
three hundred and ninety-nine, Betsy Galcatcuer numbered fifteen thousand two
104 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
hundred and eleven, George W. Bark numbered eighteen thousand five hundred
and sixty-five, Nellie Hicks numbered sixty-one hundred and seventy-nine,
Charley Ellis numbered twenty-nine thousand five hundred and twenty-five, Till-
man England numbered eighteen thousand and three, Taylor Soldier numbered
sixty-three hundred and fifteen, Carry Downing numbered eighteen thousand one
hundred and sixty-eight, Tyler Tildeu numbered sixty-four hundred and forty-
one, Lewis Dragger numbered twenty-seven thousand four hundred and seven,
Joshua Young numbered sixty-two hundred and ninety-one, all citizens of the
Cherokee Nation, Indian Territory, and duly enrolled as such, be, and the same
are hereby, removed.
That the restrictions upon the alienation of the homestead of Benjamin Mar
shall, a Creek Indian, it being the southeast quarter of the southwest quarter of
section twenty-eight, township sixteen north, and range seventeen east of the
Indian base meridian, in Indian Territory, containing forty acres, be, and the same
are hereby, removed. That all restrictions upon the sale of the northeast quar
ter of the southwest quarter of section fifteen, township ten, range eleven east,
in the Creek Nation, the homestead of Martha Lowe, be and hereby are removed :
Provided, That the same be sold under direction of the Secretary of the Interior
and upon condition that the said Secretary shall retain the proceeds of such sale
and disburse the same in such amounts and at such times as he deems advisable.
That all restrictions upon the alienation of the west half of the southeast quar
ter of the southeast quarter and the southeast quarter of the southeast quarter
of the southeast quarter of section twelve, township seven, north of range eight,
formerly owned by Mauda Proctor, deceased Creek Indian, are hereby removed.
That all restrictions upon the alienation or leasing of lands held by Sallie Carey,
Bell Leverett (nee Murrell), Maria Williams (nee Jamison), Andrew Wiley and
Susie Wriley, mixed blood Creek Indians, and William N. Taliaferro and Mary
Estella Taliaferro (his wife), Choctaw allottees, in the Indian Territory, be
and the same are hereby removed. That all restriction upon the alienation,
leasing, or incumbrance as to the homestead of Nocos Fixico, in the Creek
Nation, Indian Territory, be and are hereby removed.
That the restrictions upon the alienation of the homestead of John A. Jacobs,
a Creek Indian, it being the southwest quarter of the southwest quarter of
section eighteen, township seven north, and range nine east of the Indian base
meridian, in Indian Territory, containing forty acres, be, and the same are
hereby, removed.
*******
That the Secretary of the Interior is hereby authorized and directed to make
practical and exhaustive investigation of the character, extent and value of the
coal deposits in and under the segregated coal lands of the Choctaw and Chicka-
saw nations, Indian Territory ; and the expense thereof, not exceeding the sum
of fifty thousand dollars, shall be paid out of the funds of the Choctaw and
Chickasaw nations in the Treasury of the United States : Provided, That any
and all information obtained under the provisions of this Act shall be available
at all times for the use of the Congress and its committees.
For the care and support of insane persons in Indian Territory, to be expended
under the direction of the Secretary of the Interior, fifty thousand dollars, or
so much thereof as may be necessary : Provided, however, That Indian citizens
in said Territory shall be cared for at the asylum in Canton, Lincoln County,
South Dakota.
*******
That for the purpose of allowing any Indian allottee to sell for town-site
purposes any portion of the lands allotted to him the Secretary of the Interior
may, by order, remove restrictions upon the alienation of such lands and issue
fee-simple patents therefor under such rules and regulations as he may pre
scribe.
That upon the recommendation of the Commissioner to the Five Civilized
Tribes and with the approval of the Secretary of the Interior any allottee in the
Indian Territory may be permitted tc survey and plat at his own expense for
town-site purposes his allotment when the same is located along the line of
any railroad where stations are located.
* * * * . * * *
Approved, June 21, 1900.
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 105
AN ACT To provide for the appointment of town-site commissioners and the location of a
a town in the Seminole Nation.
Be it enacted by the general council of the Seminole Nation: SECTION 1. That
A. J. Brown, Thomas McGeisey, Thomas Factor, W. L. Joseph, and Dorsey Fife
he, and are hereby, appointed as town-site commissioners for the Seminole Na
tion, and their term of office shall continue for four years and until their suc
cessors are appointed by the general council and qualified.
The said commissioners shall each execute a bond in the sum of five thousand
dollars, to be approved by the general council, for the faithful performance of
their duty, and they, or. either of them, may be impeached and removed from
office, and fined or otherwise punished by the general council, for malfeasance or
improper conduct while in office.
Before entering upon their duties the said commissioners shall elect one of
their number as president and one as secretary.' They shall keep a record of all
their doings and transactions and make a report of the same to the general coun
cil once in each year.
SEC. 2. That said commission shall select a suitable tract or tracts of land in
the Seminole Nation, not exceeding six hundred and forty acres, for a town, to be
known and designated as Wewoka. And when selected the said commissioners
shall cause the same to be surveyed and divided into lots, blocks, streets, and
alleys of suitable width and size for residence and building purposes, and have
the same numbered and platted according to the usual plan adopted by the
United States for laying out and establishing town sites.
There shall also be set apart one block for public buildings and two additional
blocks or squares, properly located, for public parks.
SEC. 3. Should any or all of the lands selected by said commission for pur
poses herein mentioned be owned, occupied, or claimed by any member of the
Seminole Nation for business, agricultural, or grazing purposes, or as a home,
or for any other legitimate purpose, then and in that event the said commission
shall, before entering upon such land for the purpose of using them as a town
site, make and enter into a contract or agreement with such person or persons
for the relinquishment of their right and title to the same, and in consideration
thereof 'the said commissioners shall have the right, and they are hereby em
powered, to grant and relinquish to such person or persons owning, occupying,
or claiming said lands an interest in said town equivalent to one-fourth the
entire number of acres which they may own, occupy, or claim : Provided, That
such person or persons shall have the right and privilege of selecting in said
town the said one-fourth interest, subject to the approval of the said commis
sion, which selection shall include any buildings that may at the time belong to
such person or persons.
SEC. 4. That a description of the tracts of land which may be selected by said
commissioners for the purpose aforesaid, according to the United States survey
of the same, shall be reported to the national council, with a plat of the town,
showing the survey of the same into lots, blocks, streets, and alleys, and also the
blocks or squares for parks and public buildings, whereupon the president and
secretary of the said national council, with the approval of the principal chief
of the Seminole Nation, shall convey the tracts of land so selected and reported
in trust to the said commissioners, who shall have the general management of
the said town.
The said commission shall have power to sell or lease the said town lots upon
such terms and conditions and for such considerations as they may deem proper,
and to execute leases as in their judgment may be for the best interests of the
said town, the Seminole Nation, and people : Provided, That no sale shall be
made to noncitizens, whether Indians by blood or otherwise, until the tribal
organization as such shall cease to exist : And provided, That no transfer of the
title of lots shall be made to any person or persons, except upon the condition
that a building or buildings, or other valuable improvements, shall be erected
thereon within six months from date of lease or^mrchase of such lot or lots:
Provided, That said commissioners may in ther discretion, for good cause
shown, extend the time for the completion of such building, buildings, or
improvements.
SEC. 5. That said commission shall keep a record of all lots and blocks sold,
leased, or otherwise disposed of by them, and they shall pay over to the treas
urer of the Seminole Nation once every six months the net proceeds of sales of
the aforesaid three-fourths interest in said town : Provided, That the aforesaid
106 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
one-fourth interest belonging to person or persons who may be entitled to the
same as aforesaid shall be conveyed to such person or persons aforesaid, and
said person or persons shall have the exclusive management and control of the
same, and may lease, sell, or convey the same upon the terms and conditions as
hereinbefore provided for the disposition of other lots and blocks. The said
commissioners shall be allowed pay for their services in the management of the
town, and on sales of lots five per centum of all moneys that may be received on
account of such sales or leases.
SEC. (>. That said commissioners are hereby authorized to appoint a city mar
shal for the said town of Wewoka, who shall have the power to arrest all offend
ers and disturbers of the peace and protect the lives and property of the people.
The said marshal shall execute a bond in such sum as said commission may
prescribe for the faithful performance of his duty, and he may be removed from
office by said commission for good and sufficient cause. The said commission
shall also have the right to appoint a city attorney and police judge for such
time and upon such terms and conditions as they may prescribe. They shall
also have the power, when the population of said town is two hundred or more,
to organize a city government for the said town and provide for the election of
a mayor and city council in such manner and upon such terms and conditions as
they may prescribe, and they shall fix the salaries or designate the fees to be
paid to each of the city officers, subject to the approval of the national council.
The said commission shall have the right to levy and collect taxes in said town
for the purpose of maintaining a city government and making such improve
ments as they may deem necessary : Provided, That no taxes shall be levied or
collected on the lots in said town during the existence of the Indian government.
SEC. 7. That the town of Wewoka shall, and is hereby, declared to be the
capital and seat of government of the Seminole Nation, and shall remain as
such so long as the present tribal organization exists.
SEC. 8. This act shall take effect and be in force from and after its passage.
I hereby certify that the foregoing act was duly considered and passed by the
general council of the Seminole Nation at Wewoka, I. T., on this 23d day of
April, 1897.
NUTHCUP HARJO,
President of the Council.
Attest :
T. S. MCGEISEY,
Secretary.
Approved April 23, 1897.
JOHN F. BROWN,
Principal Chief.
PART II.
DECISIONS OF THE DEPARTMENT OF THE INTERIOR RENDERED
IN CERTAIN CHOCTAW, CHICKASAW, CREEK. AND
CHEROKEE ENROLLMENT CASES.
107
DECISIONS RENDERED IN CERTAIN INDIAN ENROLLMENT CASES.
OFFICE OF THE SECRETARY,
Washington, I). C., February £//, 190 //.
The COMMISSION TO THE FIVE CIVILIZED TRIBES,
Muxcogce, Ind. T.
GENTLEMEN: There is inclosed herewith a copy of an opinion of the Assistant
Attorney-General for this Department of February 18, 11)01, in the matter of the
application for the enrollment of James M. Buckholts, Rebecca Buckholts, and
Alice Dwight, formerly Buckholts, which opinion has been approved by the
Department.
In accordance therewith your decision in favor of the applicants is hereby
affirmed.
A copy of the Commissioner of Indian Affairs' letter of December 1, 1903,
submitting the case, is inclosed.
Respectfully,
THOS. RYAN, Acting Secretary.
OFFICE OF THE ASSISTANT ATTORNEY-GENERAL,
Washington, D. C., February 18, 1904.
The SECRETARY OF THE INTERIOR.
SIR: I am in receipt, by reference of the Acting Secretary, December 5, 1903,
of the papers, for my opinion, in the case of James 51. Buckholts and his
children, Rebecca Buckholts and Allie Dwight (nee Buckholts), applicants for
enrollment as citizens by blood of the Choctaw Nation.
The Commission to the Five Civilized Tribes found that—
James M. Buckholts is the son of William Buckholts, a citizen of the Choctaw Nation,
who was admitted as such by a judgment of the supreme court of the Choctaw Nation,
rendered in October, 1872 (certified copy attached), and Matilda P.uckholts (deceased)
a noncitizen, and that applicants, Rebecca Buckholts and Allie Dwight, are the issue of
the marriage of the said James M. Buckholts and Jennetta Buckholts (nee Ferryman),
a noncitizen white woman.
* * * James M. Buckholts (as James Buckholts), Rebecca Buckholts, * * *
and Allie Dwight (as Alice Buckholts) are identified on the 1893 Choctaw leased dis
trict pay roll, Blue County, * * * as citizens by blood of the Choctaw Nation
* * * also identified on the 189G Choctaw census roll, * * * as citizens by
blood of said nation.
All of the applicants herein were residents in good faith of Indian Territory on June
— o, Io9o.
* * * The Choctaw Nation, through its attorneys, has protested against the
enrollment of the applicants herein on the ground that the name of the principal
applicant, James M. Buckholts, was not included in the judgment of the Choctaw
supreme court admitting his father, * * * although the said James M. Buckholts was
living at that time; that therefore the applicants herein can acquire no rights to Choctaw
citizenship by virtue of the admission of the said William Buckholts.
Reciting the Choctaw act of March 20, 1872, vesting the judges of the Choc
taw supreme court with jurisdiction to admit claimants to citizenship, the
Commission further found that —
The applicants herein contend that their ancestor, William Buckholts, applied under
this act to the supreme judges of the Choctaw Nation to have his citizenship rights
determined ; that the said William Buckholts attempted to include the names of" his
descendants in his application, but was informed by the chief justice that this was
unnecessary, and that his (William Buckholts's) recognition as a Choctaw by blood carried
with it the recognition of his children ; that for this reason, and following the general
custom in such cases at that time, the names of his descendants were not included
in said application.
109
110 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
The Commission found this contention to 'be supported by the testimony of the
supreme judge presiding at the time of William Buckbolts's admission and by
the tribal recognition given his descendants on all the rolls of citizens prepared
by the nation after that time, and adjudged that —
* * * James M. Buckholts, Rebecca Buckholts, and Allie Dw iff lit should be
enrolled as citizens by blood of the Choctaw Nation under the provisions of section 21
of the act of Congress approved June 28, 1898 (30 Stat., 495), and it is so ordered.
The evidence further shows that William Buckholts was the son of Betsy
Buckles, otherwise known as Elizabeth Buckholts, mentioned by these names in
letters of the Indian Office of September 22 and October 7, 1837, a reservee and
beneficiary under the fourteenth article of the treaty of Dancing Rabbit Creek,
who received 41 sections of land in Sumter County, Ala., for herself and nine
children, four over and five under 10 years of age. In the fall of 1850 William
Buckholts, one of these children, moved from Mississippi to Texas and there
resided until 1872, when he removed with his family, taking James M. Buckholts,
his son, with him to Indian Territory, where they have ever since resided.
James M. Buckholts made his application for enrollment by the Commission
prior to December 4, 1900, and some testimony in his case was taken on that
day, so that were he not entitled to enrollment as a citizen by virtue of his
father's admission in 1872, the record shows him entitled to identification as a
Mississippi Choctaw within the strict terms of section 41 of the act of July 1,
1902 (32 Slat., U41-G51).
But authority for his enrollment need not, in my opinion, be referred to that
section. The effect of the judicial admission of William Buckholts must be
determined by the law of the Choctaw Nation and the practice of its courts
thereunder. The act of the Choctaw Nation of March 20, 1872, vested jurisdic
tion in the supreme court of the nation, during the terms of the court, to take
evidence and hear the applications of persons of Choctaw or Chickasaw descent
claiming rights and privileges of citizenship. The interpretation of the law
by that court and the practice of the court under the act are conclusive upon
the nation, not to be changed to the prejudice of those whose cases were adjudged,
and who, relying upon such judgment, identified themselves with the nation
and have ever since cooperated in its upbuilding and development. It is abun
dantly proven by other testimony, and by that of the judge presiding at the
time of William Buckholts's admission, that he then called to the court's atten
tion the fact that he had children who with him had moved to the nation and
desired a decree in their favor, if such were necessary to be made, and that
the chief justice there presiding over the court there sitting announced that
such was the effect of the decree made. The supreme court certainly had juris
diction to construe and announce the effect and force of its decree and to con
clude the Choctaw Nation by such interpretation of its law.
I am therefore of opinion that the Commission to the Five Civilized
Tribes properly admitted the applicants to enrollment, and that its action in
that respect should be approved, and that the protest of the Choctaw Nation
should be overruled.
Very respectfully, FRANK L. CAMPBELL,
Assistant Attorney-General.
Approved February 18, 11)04.
E. A. HITCHCOCK,
Secretary,
OFFICE OF INDIAN AFFAIRS,
Washington, D. C., December 1, 1903.
The honorable the SECRETARY OF THE INTERIOR.
SIR : I have the honor to submit for your consideration record of the Com
mission to the Five Civilized Tribes in the matter of the application for enroll
ment as citizens by blood of the Choctaw Nation of James M. Buckholts,
Rebecca Buckholts, and Allie Dwight, where a decision enrolling them was
rendered by the Commission on July 20, 1003. It appears from the record in
this case that the principal applicant, James M. Buckholts, is the son of William
Buckholts, a citizen by blood of the Choctaw Nation, the father having been
admitted as such by a judgment of the supreme court of the Choctaw Nation
rendered in October, 1872, and Matilda Buckholts, deceased, a noncitizen, and
that the applicants Rebecca Buckholts and Allie Dwight are the issue of the
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. Ill
marriage of James M. Buck holts and Jeimetta Buckholts, nee Ferryman, a non-
citizen white woman.
On an examination of the tribal rolls of the Choctaw Nation in the possession
of the Commission it is set out in the record that the names of James M. Buck-
holts as James Buckholts, Rebecca as Rebacca Buckholts, and Allie Dwight as
Alice Buckholts are identified on the 1893 Choctaw leased district pay roll,
Blue County, page 13, Nos. 139, 140, and 141, respectively, enrolled as citizens
by blood of the Choctaw Nation. The names of James M. Buckholts as J. M.
Buckholts, Rebecca Buckholts, and Allie Dwight as Allie Buckholts are also
identified on the 189(3 Choctaw census roll, Nos. 153G, 1537, and 1538, respec
tively, enrolled as citizens by blood of said nation. It further appears from the
census card records of the Commission that all of the applicants herein were
residents in good faith of Indian Territory on June 28, 1898, all applicants listed
for enrollment on census cards of 181)9 having been first examined as to such
fact, although their testimony was not reduced to writing. It is shown by the
testimony of William Buckholts that he is the son of Betsey Buckles, a bene
ficiary" under the fourteenth article of the Choctaw treaty of 1830, it being his
contention that she received 4% sections of land in Sumtoi' County, Ala., in
behalf of herself and four children over 5 and under 10. lie explains the dif
ference in names arising through the fact that there was another person of the
name of Buckles living in the neighborhood where he resided and the misunder
standing arising from the similarity of the names resulted in his being called
Buckholts. He was 84 years of age in January, 1902. Having been admitted to
citizenship in the Choctaw Nation in 1872, immediately succeeding his arrival
there from Texas, where he had previously resided, his admission was based
on proof of his Choctaw blood derived through Betsey Buckles, his mother.
The records of this office show that Betsey Buckles received, for herself and
three children over 5 and under 10, 3:} sections of land, described a-s follows :
The north fractional half section 15, the northeast and southwest quarters sec
tion 10, the east half section 3, all of section 2, all in township 17 north, range
1 west, and all section 34 and the southwest quarter of section 35, both in
township 18 north, range 1 west, Sumter County, Ala. The witness says a
patent was received by his mother for this land ; a patent was, in fact, issued to
her for the land.
The Choctaw Nation, through its attorneys, has protested against the enroll
ment of the applicants herein, on the ground that the name of the principal
applicant, James M. Buckholts, was not included in the judgment of the Choc
taw supreme court admitting his father, William Buckholts, to citizenship in
the nation, although James M. Buckholts was living at that time; that therefore
the applicants herein can acquire no right to Choctaw citizenship by virtue of
the admission of William Buckholts, and that none of the applicants has ever
been admitted to Choctaw citizenship by the legally constituted authorities
of the nation. The Commission sets out the act of the Choctaw Nation, dated
March 20, 1872, authorizing the supreme judges to take evidence through the
terms of the supreme court of all persons claiming to be of Choctaw or Chicka-
saw descent. The applicants contend that their ancestor, William Buckholts,
applied under this act to the supreme judges of the Choctaw Nation to have
his citizenship rights determined ; that William Buckholts offered to include
the names of his descendants in his application, but was informed by the chief
justice that this was unnecessary, and that his (William Buckholts's) recogni
tion as a Choctaw by blood carried with it the recognition of his children ; that
for this reason, and following the general custom in such cases at that time,
the names of his descendants were not included in said application.
The contention of the applicants is supported by the deposition of Judge J.
Everidge, one of the supreme judges of the Choctaw Nation at the time of the
admission of the said William Buckholts ; by the testimony of James S. Standley,
Joseph R. Plummer, Alinton Telle, Judge Simon E. Lewis, and William Buck-
holts, all representative citizens of the Choctaw Nation. These witnesses sup
ported the contention that at the time of the admission of William Buckholts
he was told by the chief justice of the supreme court that it was not necessary
that he should include in the application the names of his descendants, since
his enrollment would carry with it theirs, and also that this was the custom
with reference to admitting citizens by the supreme court at that time and for
years subsequent. Their testimony also sustained the contention of tribal recog
nition given descendants of William Buckholts, and this is further supported by
the fact that the names of these persons appear on the rolls of citizens of the
Choctaw Nation prepared since the date of the act of admission referred to.
112 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
The Commission therefore were of the opinion that the contention of the
applicants herein had been established, and that, therefore, James M. Buck-
holts, Rebecca Buckholts, and Allie Dwight should be enrolled as citizens by
blood of the Choctaw Nation under the provisions of section 21 of the act of
Congress approved June 28, 181)8 (30 Stat. L., -J-J)~>), and it is so ordered.
On September 17 the Department transmitted to this otlice (I. T. D., 7131,
7959-1903) letter of Messrs. Mansfield, McMurray & Cornish, counsel for the
Choctaw and Chickasaw nations, calling attention to the fact that the appli
cants in this case are related to the applicants in the cases of J. M. Humans et al.
and Anna Smith et al. v. Choctaw and Chickasaw .nations now pending before
the Choctaw and Chickasaw citizenship cou-rt, and claim the same blood, family
relationship, ancestry, and source of right as a foundation for their respective
claims. The authorities, by reason of the relationship, similarity of blood
ancestry, and source of right between the applicants in this case and the appli
cants in the case last above referred to, protested against the enrollment of
these persons at this time.
On October 13 the Department transmitted to this ollice letter of Messrs.
Mansfield, McMurray & Cornish, by letter I. T. D. S30JM903, requesting that no
action be taken in this case upon their protest and brief or otherwise until a
general request with reference to this same class of cases is received and passed
upon by the Department. The office is also in receipt of letter of Hon. John
II. Stephens, of the 28th ultimo, asking that the Buckholts case be transmitted
to the Department for consideration.
The Department has determined (November 18, I. T. D. 7022-1903) that cases
now pending before the Department or the Commission involving persons. who
were admitted by action of the national authorities of the Choctaw Nation
whose ancestry is the same as other persons whose cases are pending before the
Choctaw and Chickasaw citizenship court will not at present be disposed of,
but the action so taken by the Department was not of such character as to pre
clude the taking up of cases having special features.
The Choctaw and Chickasaw citizenship court was not established for the
purpose of determining the right of persons whose names appear on the Choc
taw citizenship rolls by action of the national authorities. It has no jurisdic
tion over that class of cases. The Commission to the Five Civilized Tribes was
vested with authority to investigate all that class of enrollments and has per
formed its work in connection with the case now submitted. It appears from
the testimony in this case that the immediate ancestor of these applicants, who
is still living and testified in the case, was regularly enrolled by the Choctaw
supreme court in 1872 under a showing of Choctaw ancestry which was en
tirely satisfactory to the court. It is also shown in the record that William
Buckholts at that time offered to include the names of his children in his appli
cation, but was advised that it was not necessary. As throwing light on the
views of the authorities at that time, the Choctaw Nation has ever since, until
within the last year, recognized and conceded the citizenship of these applicants
as vested in them by reason of the admission of William Buckholts, through
their names having been placed upon the tribal rolls, apparently without objec
tion.
These parties are holding lands in the Choct'iw Nation upon which they wish
to file as their allotments, but until their case is determined by the Department
they will not be permitted to file by the Commission. Until a short time ago
they were subject to having other citizens of the Choctaw Nation, of whose
citizenship there was no question, file upon their lands, but I presume since the
instructions issued by the Department very recently relative to that matter the
Commission is not continuing to allow filings upon lands so situated; but in
any event any delay in the case is a source of great embarrassment to the appli
cants, and no adequate cause is shown why their case should be further sus
pended. The Department has already announced that it will not be bound by
any judgment entered by the Choctaw and Chickasaw citizenship court in this
class of cases, and I am therefore of the opinion that in this case at least there
is no good reason for further delay, and therefore recommend that the action of
the Commission in enrolling these applicants be approved.
Relative to the question of the rights of children to enrollment by reason of
the admission of their parents, a question which is involved in this case, per
mit me to invite the attention of the Department to its decision of May 15, 1903
(I. T. D. 341)0-1 903), in the case of the application of Florence L. Davenport for
the enrollment of her infant daughter, Ida Myrtle Davenport, as a citizen of
the Choctaw Nation; to its decision of January 24, 1903 (I. T. D. 7989-1902),
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 113
in the case of Fruea L. Rowland for the enrollment of herself, her son, Ed. Riley,
and wards, Thomas and Susan A. Riley, as citizens by blood of the Cherokee
Nation, and to its decision of February 2, 1903 (I. T. D. 844-1903), in the mat
ter of the application of David J. Matthews for the enrollment of himself as a
citizen by intermarriage of the Cherokee Nation and for the enrollment of
his wife, Addie Matthews, and their children, Mary L., William L., Joseph T.,
and Jessie M. Matthews, as citizens by blood of the Cherokee Nation.
Very respectfully,
W. A. JONES, Commissioner.
OFICE OF THE SECRETARY,
Washington, D. G., March 27, 1905.
COMMISSION TO THE FIVE CIVILIZED TRIBES,
Muscogcc, Ind. T.
GENTLEMEN : August 25, 1904, you transmitted the record in the consolidated
case embracing the applications of Richard B. Coleman, Ida C. Walker, Bettie W.
Cooper, Bennetta Coleman, Henry A. Coleman, Willie N. Coleman, Richard S.
Coleman, Winifred Coleman, Eva F. E. Coleman, Ida May Coleman, Ruth St.
Clair Coleman, Richard W. Cooper, and Coleman Carlota Walker for enrollment
as citizens by blood of the Choctaw Nation, and of Eva Coleman and Annie E.
tjoleman for enrollment as citizens by intermarriage of said nation.
In a decision rendered August 8, 1904, by a majority of your Commission, it
was held that the applicants herein claiming enrollment as citizens by blood were
entitled to enrollment as such. No action was taken upon the applications based
upon intermarriage. A dissenting opinion was rendered on the same date by the
chairman of your Commission.
Reporting in the matter September 28, 1904, the Acting Commissioner of
Indian Affairs recommended that the record be returned to you for further
investigation.
You will note that in the report of the Acting Commissioner, a copy of which
is inclosed herewith, the names of Bennetta Coleman, Henry A. Coleman, Wini
fred Coleman, and Richard W. Cooper are erroneously given as Bennetta Cooper,
Henry A. Cooper, Winfield Coleman, and Richard W. Coleman.
In an opinion of March 17, 1905, rendered by the Assistant Attorney-General
for this Department, approved the same day, a copy of which is inclosed here
with, it was held " that the applicants were properly held to be entitled to be
enrolled." In accordance with this opinion, the Department concurs in the
decision rendered by the majority of your Commission August 8, 1904. Said
decision is hereby affirmed, and you are directed to enroll the persons herein
claiming enrollment by blood as citizens of the Choctaw Nation.
Respectfully,
E. A. HITCHCOCK, Secretary.
OFFICE OF THE ASSISTANT ATTORNEY-GENERAL,
Washington, D. C., March 17, 1905.
The SECRETARY OF THE INTERIOR.
SIR : I received, by reference of December 15, 1904, with request for opinion
thereon, the record in the consolidated Choctaw enrollment case of Richard B.
Coleman and others, with a copy of the opinion of the Acting Attorney-General
of December 7, 1904.
November 8, 1889, the general council of the Choctaw Nation enacted
AN ACT To establish the citizenship of R. B. Coleman, his wife, and their children.
SEC. 1. Be it enacted ly the general council of the Choctaw Nation assembled, That
Richard Benjamin Coleman and his wife, Eva Coleman, and their children, as follows :
Richard St. Clair, age 15 years ; Ida Clay, age 18 ; Benuetta, age 11 ; Bettie Withers, age
0 ; Henry Allen, age 6 ; Willia Norma Coleman, age 4, are hereby admitted to citizen
ship in the Choctaw Nation, with its rights, privileges, and immunities, and that this
act shall take effect and be in force from and after its passage.
Coleman was thereafter borne upon the tribal rolls, was appointed or elected
to and held many offices, voted, participated with his family in distributions of
tribal funds, and was generally and fully recognized as a Choctaw citizen to
about December, 1898. The nation now resists enrollment of Coleman and his
family upon three grounds, viz: (1) That the foregoing act of admission \ya.s,
33753—06 M 8
114 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
obtained through misrepresentation and deceit; (2) through bribery and cor
rupt influences; (3) that the Choctaw council was without power to grant
admission to citizenship without consent of the Chickasaw Nation.
Coleman came to the Territory from Texas in 1880 and has ever since lived
there. For about two years before the act for his admission he had been an
applicant to the council claiming descent from a full-blood Choctaw woman
named Chapponia, first wife of his grandfather, John Coleman, formerly resi
dent in Mississippi, near the confluence of the Tombigbee River and Yalebusha
Creek, where their son Frank (his father) was born, about 1810. He was sent
by the Choctaw Nation to a Kentucky school, whence he returned some years
later and found the Choctaw people had migrated to Indian Territory. He
went back to Kentucky, married Ann Elizabeth Bedford, and in 1844 removed to
Greene County, Mo., where their son Richard B., the principal applicant, was
born, in 1840; in 1807 he and his father, then dependent on him, went to
McAlester, then to Boggy Depot, in the Choctaw Nation, just after the rebellion,
and stayed about six weeks. Having lost all their property in the war, and
finding it impossible to make a living there, they went to Texas, where his
father died in 1808, near Denton, aged about 50 years. The applicant was
mayor of Denton nearly eight years. At different times when his application
was before the council it was supported by the oral testimony or affidavits of
Mehaloma, Maitubby Wade, William B. Pitchlyn, Sophy McKinney. James
King, John King, George S. Neal, white justice of the peace at Windsor, Mo. ;
Dr. R. S. Ross, of Denton, Tex., and, he thinks, one Stephens also testified.
He had at different times as counsel Lewis & Stephens, Wade Hampton, and
Edmond McCurtain, who employed Campbell Frazer. Much of Coleman's tes
timony as to names of witnesses, the substance of their testimony, and names
of his attorneys before the council and its committees, is corroborated by wit
nesses for the nation in this proceeding.
The witnesses adduced by the nation at the hearing before the Commission to
the Five Civilized Tribes were Simon E. Lewis and Tandy Stephens, his attor
neys in 1887-88, before the council ; Robert J. Ward, a member of the council
in 1887-1889, member of its citizenship committee in 1888; and Joshua B.
Jeter, clerk of that committee, who substantially corroborate Coleman's testi
mony as to the ground for his claim to admission and the production of the
first three or four of the witnesses on his behalf above named, and Jeter testi
fied that he then "thought that he (Coleman) had a good case; " that the evi
dence then adduced was written down and signed by the witnesses, and that
there also were some affidavits submitted. The record shows that such wit
nesses are dead, and the testimony of all but one is lost.
The nation adduced as witness Solomon II. Mackey, who testified that in the
fall of 181)0 he and Dave Robuck, speaker pro tempo re in the chair of the house
of the Choctaw council when Coleman's bill passed that body in 1889, were on a
railway train when Robuck mistook a stranger to be Coleman, and asked the
stranger to pay him (Robuck) $75 balance of $150 that Coleman had promised
to pay him for getting the bill passed. The man was not Coleman, nor was
Coleman present. Fritz Sittel, partner of Coleman in a store in 1889, testified
that Coleman took from the firm funds $700 when he started to attend the
council that passed the act of admission, and borrowed $300 of one Haas, all
of which he spent before returning ten days later, so that Coleman gave an
order on the firm for $80 toward payment for a mule purchased on that trip;
that all such transactions were charged by the bookkeeper, now dead, on the
firm books, and the $700 was repaid about thirty days afterwards; that he had
a conversation with Robuck afterwards, when acting as attorney for witness in
a lawsuit, when Robuck told witness, " I brought your partner through," and,
to the best of witness's recollection, got out of it $150 or $200. This witness
had been twice arrested for larceny, one indictment being for rebranding Cole
man's cattle, and still pending when he testified. Edward Sittel, father of last
witness, was in 1889 partner of the firm, and testified that his son told him at
the time that Coleman drew out the $700, and witness saw it on the book.
Uriah 1*. Hughes testified that in 1884 and 1885, when he had a confectionery
store in McAlester, and old Choctaw man and woman (Pusleys) bought some
boneless ham and cheese for lunch. They wanted credit, and said they were
going to the council to testify for Mr. Coleman, who was to pay them $100 —
whether to both or to each one he is uncertain. After a time they returned
and bought a few more articles, for which they paid. Alfred M. McCay, Indian
policeman, testified that his wife, since 1870, had known the old negro woman
whose testimony he had heard was taken in support of Coleman's application
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 115
before the council. She lived at Scott McKinney's, 4 miles west of McAlester.
He and his wife saw her in 1883, and in his opinion her mental condition was
that she "looked to me like she was in had shape; she was pretty badly out
of her mind; could only talk about one thing." He saw her at various times to
her death in 1887. He heard that her testimony was taken by the county
.judge. Green McCurtaiu, senator, former delegate to Washington, treasurer,
and principal chief, testified that his brother Edmond was attorney for Coleman
before the council in 1889, and being unable to attend, witness, for his brother,
looked into the papers and formed the opinion that the case was not just. " I
did not so tell Coleman, but said to him that I was too busy to give it attention
and turned it over to Campbell Frazier." The case was rejected by the citizen
ship committee, and Frazier told witness that he (Frazier) had talked with
Robuck, who said he had rejected the application because there was nothing in
it for him (Robuck). That he (Frazier) told Robuck what his fee was, and
that he promised to divide it with Robuck, who agreed to reconsider it. The
same day or the next Frazier asked witness to draw the Coleman bill, which he
did, and it was passed. Witness says, " I understood Coleman got his citizen
ship by paying witnesses, and it was understood that way by everybody."
Coleman adduced Martin Charleston, member of the council in 1889, who
testified that the citizenship committee heard the evidence of James King and
other witnesses and rejected the claim ; that Robuck was not one of the commit
tee ; that Robuck drew and presented the Coleman bill, and said Coleman was
a Choctaw ; also Josiah Gardner, who had been a member of the council, but
apparently not in 1889, testified as to manner of procedure of the council and
its committee, and that he attended at taking of Sophy McKenney's deposition
before County Judge Pond, and she was then of sound mind.
Coleman testified in his own behalf, restating the family tradition of Choc-
taw descent received by him from his father, who always claimed that he was a
half-breed Choctaw. He denied that he ever used the Pusleys as witnesses,
and testified that no Pusley had lived in the vicinity after Edmund Pusley's
death in 1884 or 1885; denied that he took $700, or any other sum, from the
firm funds when he went to the council, and produced the old firm book identi
fying the dead bookkeeper's handwriting, to show that his account was not
debited with it or credited with its return ; said he never paid Robuck, or any
one for him, or to or for any member of the council or to anyone for any of them
any sum to obtain their favor of his bill ; all the money he took on his trip
to the council was $80, collected from Lorendo Ristoko on a store account, the
$300 Haas check, and a small sum borrowed from Doctor Tennant to pay on
purchase of a mule. The check he gave to Jackman for collection, and gave
Green McCurtain an order for its proceed, $200, to be paid to his brother
Edmond as attorney's fees, $40 or $50 to be paid Frazier for assisting; he had
paid some witness fees at $1.50 per day for four days and mileage at legal rates,
and his hotel bill. This took all the money. Witness Pitchlyn, who testified
that he knew Frank Coleman, the half-breed Choctaw, son of John Coleman,
in Mississippi and went to school with him in Kentucky, died in 1893. Pitch-
lyn testified that he knew John Coleman, with whom he had traded in Missis
sippi, and his family, and that John Coleman's first wife was Chapponia, a
full-blood. Choctaw, by whom he had one child, Frank; and that he (Pitchlyn)
After returning from school, found that the Choctaws had migrated to the
Territory, and followed them thereto, and was about 40 years old when he
testified (in 1887-1889) ; that Sophy McKinney testified that she was from the
Tombigboe River ; knew John Coleman and his Choctaw son, Frank ; lived 6 or
7 miles from them : and that when Frank came back from school and found the
Choctaws gone to the new nation McKinney persuaded him to return to Ken
tucky.
July 11, 1902, Harriett Henry and R. L. Coleman, at Columbia, Mo., testified
under a commission upon interrogatories served June 17, 1902. Harriett's
testimony, reducing interrogatories and answers to narrative, was that she
was —
89 years old ; lived in Boone County, Mo. ; her maiden name was Harriett Cole-
man ; father's name, Francis Coleman ; mother's, Elizabeth Gordon ; father was born
and raised in Orange County. Va. ; rather thinks mother was born and raised there,
don't know for sure; father had no brother Francis S. Coleman, but had a son of that
name, whose wife's maiden name was Ann Elizabeth Bedford, daughter of John Bedford ;
Francis S. Coleman was born and raised at Bo.vd's Station. Harrison County, Ky. ; he came
to Missouri, and went to Denton, Tex., and died near there : liis children's names were
John Francis, George, Richard, two sons killed by a falling tree, and Stephen, tlattie,
Henrietta, and Mary ; father's children were Whitehead, Richard, Robert, Francis S.,
America, Eliza, Nancy, and herself, by father's last wife.
116 LAWS AFFECTING THE FIVE CIVILIZED TKIBES.
R. L. Coleman's testimony reduced to narrative was that —
His age was 78 ; lived in Columbia, Mo. ; father's name was Whitehead ; he had a
brother Francis S., who was also brother of Mrs. Harriett Henry ; grandfather on
father's side was Francis Coleman ; his wife was Elizabeth Coleman, nee Gordon ; grand
father and, he thinks, grandmother were born and raised in Orange County, Va. ; their
children were named Whitehead, Richard, Robert, -Francis S., America, Eliza, Nancy,
and Harriett ; uncle Francis S. was born and raised at Boyds Station, Harrison County,
Ky. ; his wife's maiden name was Ann Elizabeth Bedford, daughter of John Bedford ;
when Francis S. Coleman moved from Kentucky, he came to Springfield, Mo. ; witness
came with him ; he died at or near Denton. Tex. ; does not know the time ; his children's
names, so far as he knew, were John Francis, George, Richard (Joe and Robert, killed
while small boys), Sarah Elizabeth, Mary Henrietta, Harriett, and Stephens.
This witness was reexamined September 29, 1903, by one of the Commission,
apparently without suggestion of, notice to, or knowledge of the interested
parties or their council. His testimony, omitting some repetitions and imma
terial matters, in narrative is that witness —
was born at Spottsylvania, Va. ; lived here in Missouri three times ; left here in 1847
and lived in the Cherokee Nation two years, and went to California and lived there
from 1847 until he came back to Missouri in 1856 ; remained until 1858 ; went to Vir
ginia ; got there Christmas eve, 1858, and remained till November, 1865 ; came here the
last time in 1866 ; knows Richard B. Coleman, of South McAlester, Ind. T. ; he is
witness's first cousin ; his father, Francis S. Coleman, and his own were full brothers ;
last saw Richard B. about thirty years ago ; do not know whom he married nor the
names of his children or family. Witness came to Missouri with his father and family
from Blueiick Springs, Nicholas County, Ky., in 1884. Francis S. lived in Harrison
County. Dick was born while witness was here ; saw him in 1856 only a day, or per
haps two, and no more until 1866, when he came where witness lived and took witness's
sister away ; had not seen him since. His mother was Ann Elizabeth Bedford. Mrs.
Harriett Henry was witness's aunt and Richard S. Coleman's aunt — great-aunt. She
died about three months ago. No; Richard B. Coleman's father never lived in Missis
sippi to witness's knowledge. Witness knew him since 1849 ; he was then a grown man.
Witness's father was considerably older than Uncle Frank, and died in 1854. Frank S.
must have been well on to 60 when he died. Francis S., from his birth until witness
knew him, lived until some time after his marriage near witness's father, in Kentucky ;
then moved to Blueiick and lived there ; came to Missouri in 1844 and lived near
Springfield until about the time of the war ; then moved to Cooper County ; moved
thence to Denton, Tex., and, he thinks, lived there till his death. His mother was Eliza
beth Gordon, who witness reckons was a white woman, but he never saw her ; doe" not
know where she and Francis were married ; thinks it as in Orange County, Va. ; only
heard that. They settled in Kentucky in 1800, where witness's father lived — that is his
understanding. She died before 1829, in which year witness's father moved from Vir
ginia to Kentucky, in witness's fifth year, and bought the place witness's grandparents
had lived at Broadford, Harrison County, Ky., near Colemansville. There witness's
grandfather is buried. Some of his grandfather's children witness never saw ; is not
sure can tell all their names. Witness's grandfather had by his first wife two children,
Covington and Eliza. Whitehead was the oldest of grandfather's second children ; one
was Richard, a United States army surgeon; there was America; several daughters wit
ness never saw ; thinks one was Eliza and one Nancy ; there might have been another,
Harriett (this Mrs. Henry) ; this Francis S. ; and Robert, whom he knew, a United States
army surgeon ; thinks he never heard that Grandfather Francis had either a brother or
son John ; knows very little about them back of Grandfather Francis ; does not know
grandfather's father's came. Francis B. was a very small boy when witness left Mis
souri in 1847 and went to Cherokee Nation ; lived there till 1849, and went to California.
Witness never claimed Choctaw blood ; if he has Indian blood, does not know it. His
father went from Broadford, Ky., where grandfather lived, to Virginia, and was raised
by a bachelor uncle, whom witness remembers. Father married mother there and lived
there several years; remembers father's Uncle Richard, a United Plates army surgeon,
who died of cholera during the Black Hawk war.
The nation, October 12, 1903, filed copies of records of Harrison County, Ky.,
certified October 5, 1903, viz : Deed of August 2(5, 1800, by Francis Coleman and
Elizabeth, his wife, of that county, to John McKinley, of 100 acres of land ;
decree of March 8, 1813, for distribution in probate of the estate of Francis
Coleman, deceased, to his widow, Elizabeth 11., and the several heirs, David
Humphries and his wife, Polly, Covington Coleman, Whitehead Coleman.
America Coleman, Richard Coleman, Lizabeth G. Coleman, Robert S. Coleman,
Francis Coleman, N. C. Coleman, Harriett Coleman, report July 10, 1818; by
David Humphries; guardian of minors Robert S., Francis, Ann C., and Harriett
Coleman; deed of March 9, 1831, by John Bedford and wife Mary to Francis S.
Coleman, all of Harrison County, Ky., for 160 acres of land in that county ;
deed of partition, October 4, 1841, of a tract of land in Harrison County, Ky., in
severalty, executed by Whitehead Coleman and Francis S. Coleman and Ann,
his wife; deed of July 10, 1855, executed in Cooper County, Mo., by Francis S.
Coleman and wife Ann, to persons named and described as the heirs of
Elizabeth S. Coleman, deceased, of all the grantor's interest in two described
tracts of land in Harrison County, Ky.
March 16, 1904, counsel for Coleman moved to strike from the record the
foregoing testimony of R. L. Coleman, for want of notice, and the foregoing
certified copies of documents, which, July 26, 1904, was overruled.
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 117
January 23, 1904, a protest was filed in the case by the nation against further
proceedings herein until decision of the Choctaw-Chickasaw citizenship court in
the case of Mattie Lee Armstrong, there pending, alleged to involve a similar
issue. The same and other similar protests being referred to me for opinion,
February 18, 1904, for reasons then stated I was of opinion that the delay re
quested should be denied.
October 13, 1903, this cause was referred by the Secretary of the Interior to
the Attorney-General, who was advised that the Choctaw and Chickasaw
nations claimed that the Commission to the Five Civilized Tribes have author
ity to investigate as to the right of persons not of Choctaw or Chickasaw
blood, placed on the rolls by act of council, in cases where the act of admission
was obtained by bribery or false testimony. The Secretary requested —
to be advised as to the power and authority of the Commission to the Five Civilized
Trihes or this Department to ignore the act of the Choctaw national council admitting
said Coleman to citizenship, if it be found the passage thereof was secured by bribery or
other unlawful means.
December 7, 1904, the Acting Attorney-General, referring to the rules of
practice governing the Department ,of Justice, declined to find the facts from
the record transmitted, but referring to the provision of the act of June 28,
1898 (30 Stat, 502), that-
said Commission is authorized and directed to make correct rolls of the citizens by
blood of all the other tribes, eliminating from the tribal rolls such names as may have
been placed thereon by fraud or without authority of law, * * *
gave his opinion that —
It appears to me the above-quoted provisions of the statute impose upon the Com
mission to the Five Civilized Tribes the duty and give it the power to determine whether
any name appearing upon a tribal roll was placed there by fraud or without authority
of law, and that the mere fact that such enrollment was by virtue of an act of the
national council is not sufficient to preclude an inquiry. An act of the council should
be treated with respect as prima facie valid and efficacious, and nothing done as the
result thereof should be lightly set aside ; but if it clearly appears that the act was
procured by deliberate fraud and perjury, I do not think Congress intended that benefits
thereunder should be enjoyed.
August 8, 1904, a majority of the Commission found that the applicants,
except those later born to or intermarried with them, were admitted to citizen
ship by the act of November 8, 1889, supra, enacted under the laws and in
conformity with the rules, precedents, and customs of the Choctaw Nation, and
that the same is not repealed ; that concurrent action of the legislature of the
Chickasaw Nation was unnecessary to the validity of said act ; that the Com
mission was without authority or jurisdiction to inquire into the reason of the
passage of the act of November 8, 1889, or into such evidence as was presented
before the citizenship committee of the Choctaw general council in procuring
the passage of the act. The Commission thereupon admitted the applicants to
enrollment.
A minority of the Commission was of opinion that the evidence of fraud " is
very unsatisfactory and fails to show that any fraud was used by any of the
applicants," "or by their connivance;" "that it is reasonable to presume that
the evidence presented by Richard B. Coleman * * * warranted the finding
of the citizenship committee that he possessed the requisite quantum of Choc
taw blood/' and that the admission was based thereon ; that upon the evidence
here presented none of the applicants have any Choctaw Indian blood ; that the
evidence offered, upon which the act of admission was based, " was fraudu
lent, false, and misleading;" that the act of admission "was void for want
of equity and by reason of deceit," and the enrollment of the applicants was
** without authority of law," and their enrollment should be denied.
I have set out the evidence in the record at great length to show howT largely
it was incompetent as hearsay and how unsatisfactory and inconclusive is that
which is competent. No judgment of a court or legislative act could stand if
its validity may be afterwards overthrown by proof of what somebody heard
some one, unsworn, confessing himself a felon, say to somebody else about cor
rupt acts in its procurement, the interested party not being then present nor
afterwards assenting to its truth. Such hearsay statements of coconspirators
are admissible only when there is substantive and direct proof of the existence
of such conspiracy. There was no such direct proof. The testimony as to
statements of Robuck and of the supposed bribed witnesses, given by Mac-key,
Fritz Sittel, and Hughes, is therefore utterly incompetent. The attempted cir
cumstantial proof by evidence of the money taken by Coleman when he went
to the council (said to be about $700), while competent, is, without better evi-
118 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
deuce, clearly insufficient to prove bribery or corrupt practices. It is, moreover,
fully rebutted not merely by Coleman's testimony, but by production of tbe
book of account in which witnesses Sittel said they saw the $700 item charged,
and which fails to show it. No sufficient competent evidence remains to show
that any parties admitted by the bill, or any other parties, committed or at
tempted to commit or connived at commission of bribery or other corrupt
practices.
As to the charge of misrepresentation and deceit, it is noticeable that the act
of admission is not in its terms based on right by Choctaw blood. The minority
of the commission so admits in deeming it " reasonable to presume " such was
the fact. The record, however, shows that Coleman's application was pending
from 1887 to 1889. At least one previous committee of the council rejected it,
and the committee of the 1889 session did so. The council was thus advised
that there was question of the sufficiency of Coleman's proof of Choctaw
descent. It passed the bill introduced " outside " the committee, and notwith
standing its adverse report. There is no clear ground for the presumption that
supposed Choctaw blood was the inducement to or moving consideration for
passage of the act.
It is, moreover, a recognized rule in governments of divided and limited
powers that the legislative branch is, within the scope of its constitutional
action, independent, and that its motives mid reasons are not subject to judicial
or administrative question. Ex parte McCardle (7 Wall., 50G, 514) ; Fletcher v.
Peck (G Cr., 87, 128^131) ; Doyle v. Insurance Company (94 U. S., 535, 541) ;
Towell v. Pennsylvania (127 U. S., G78, G84-G85) ; County of Livingston v.
Darlington (101 U. S., 407, 41G-417) ; United States v. Des Moines Nav. Co.
(142 U. S., 510, 540, 542) ; Dartmouth College case (4 Wheat, 518, G23).
Examination of these cases will show that when the validity of legislative
action on constitutional or other ground is brought into judicial scrutiny the
court acts with the utmost circumspection, and all intendments and presump
tions are in favor of the validity of the legislative action, which is never
annulled unless the case is clear. These principles are general and applicable
to all cases of such governments. Though the Five Civilized Tribes are de
pendent communities, subject to the powers of Congress, they are autonomous
states, and these principles are applicable to their governments as well as to
those of the United States and the several States, subject to the modification
that the clear will of Congress must prevail. If the proof be clear, the legis
lative act may be annulled; but clear proof is requisite to overthrow the pre
sumptions of the integrity of legislative action. Congress, in the legislation
defining the powers and duties of the Commission, declared that the Com
mission —
shall respect all laws of the several tribes not inconsistent with the laws of the United
States * * * and shall give due force and effect to the rolls, usages, and customs
of each of said nations or tribes.
It is not clearly shown that Coleman was without Choctaw blood, though it
is clear his claim of Choctaw descent, if true, must be more remote than he
claimed. lie claimed to be the son of Francis S. (Frank), son of John, by
Chapponia, a Choctaw woman — making him of quarter blood. The evidence of
Mrs. Henry and R. L. Coleman shows he was the son of Francis S., son of
Francis, son of an unnamed Coleman, who may have been John and may have
had a Choctaw wife, mother of Francis (Frank), thus lengthening his descent
one degree and reducing the Choctaw blood to one-eighth. Errors of omission
are not infrequently found by students of genealogy and history. It is instanced
in this record, wherein Mrs. Henry, testifying as to her father's family, and
K. L. Coleman, as to his grandfather's family, July 11, 1902, testified without
reserve that Francis Coleman (Francis first) had eight children, all of whom
they named. September 29, 1903, R. L. Coleman testified to additional children
of Francis first by a first wife, Covington and Eliza; identifies his father,
Whitehead, as the oldest of Francis's children by the second wife; uncertain
whether he recalls all the names of children of the second wife, one of whom
was also named Eliza. He thinks there may have been one more. It would
seem quite improbable that two children of one parent (of the half blood) had
identity of name, but the probate of Francis's (first's) estate shows that Mrs.
Henry forgot to name her sister and brother of the half blood ; that she had two
sisters Eliza, the elder of whom, " Polly." married Humphries, who was guard
ian for Mrs. Henry and three others of the children, then minors. The addition
of an ancestor into the line of descent and substituting Francis (first) as the
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 119
•
half -breed son of John Coleman and " Chapponia," a Choctaw, so lengthens
the line as to carry back Francis first's school age to or before 1800, long prior
to the migration in 1825-1830. Richard B.'s father, Francis S., was a minor
under guardianship in July, 1815, and died in 18(38, aged about 50 or GO years.
So that he was born about 1808 to 1812. His father, Francis (on this theory
the half-breed son of John Coleman and Chapponia), died a year or more pi-lot
to 1813, when his estate was distributed after probate, the father of ten children
surviving, born of two marriages, so that presumably he must have been born,
allowing his age as only 40 in 1812, as early as 1772, when few, if any, white
people lived in the Choctaw country, in Mississippi ; and Francis, or Frank,
must have been past school age at the time of the Choctaw migration, which
was pursuant to the treaties of October 18, 1820, January 20, 1825, and Septem
ber 27, 1830 (7 Stat. L., 210, 234, 333) . This, however, does not prove that Richard
B., the applicant, made any false representation to or practiced deceit upon the
Choctaw council respecting his claim of Choctaw descent. One knows nothing
of his own lineage. It is always a matter of tradition. The representation
made, though untrue, is entirely compatible with honest belief.
But, for argument, admitting the representation was deceitfully made, not
every case of deceit is remediable. The result was that a new allegiance was
assumed and observed, and was by the Choctaw Nation accepted and recognized
nine years prior to the act of June 28, 1898, during which times the nation had
all the powers of a self-governing state for regulation of its internal affairs to
examine into and correct its act. The testimony shows, even that of witnesses
for the nation, that Coleman was a citizen of good general reputation. He was
appointed and elected to offices by the executive and the people. Some of his
children and his grandchildren were born to Choctaw allegiance. lie improved
property and cooperated to the nation's development for fully one-fourth of
human efficient activity. The right of allegiance to which oiie is born is of
the highest character, recognized in this country even by treaties framed as the
result of wars, so that a period is given within which citizens of territories
acquired may elect to preserve the nationality to which they were born. Article
XIII, treaty of February 2, 1840, with Mexico (9 Stat, 929) ; Article IX, treaty
with Spain, December 10, 1898 (30 Stat, 1759.) The allegiance to which
Richard's children were born carried an interest in communal property, so that
rights of property, as well as of allegiance, are involved.
In United States v. Throckmorton (98 U. S., 01, 04-05), where it was claimed
that patent had been obtained to a large tract of public lands by means of a
forged and fictitious document offered in proof, the court held :
There is no question of the general doctrine that fraud vitiates the most solemn con
tracts, documents, and even judgments. There is also no question that many rights
originally founded in fraud become — by lapse of time, the difficulty of proving the fraud,
and by the protection which the law throws around rights once established by formal
judicial proceedings in tribunals established by law, according to the methods of the
law — no longer open to inquiry in the usual and ordinary methods. Of this class are
judgments and decrees of a court deciding between parties before the court and subject to
its jurisdiction, in a trial which has presented the claims of the parties and where they
have received the consideration of the court.
The doctrine is approved in the Maxwell Land Grant (121 IT. S., 325, 371) ;
United States v. Des Moines, etc., Co., supra ; United States v. San Jacinto Tin
Company (125 U. S., 273, 299-300). In Moran v. Horsky (178 U. S., 205, 208)
the court held :
A neglected right, if neglected too long, must be treated as an abandoned right which no
court will enforce. See, among others, Felix v. Patrick (145 U. S., 317) ; Galliher v. Cad-
well (145 U. S., 368), and cases cited in the opinion. There always comes a time when
the best of rights will, by reason of neglect, pass beyond the protecting reach of the
hands of equity, and the present case fully illustrates that proposition.
There is no sufficient proof that the Choctaw council was deceived. It was
warned by the reports of its own committees that there was doubt of the suffi
ciency of the proofs. If it was deceived, it had full legislative and judicial
powers to investigate the case and accepted Coleman's allegiance and service
as a citizen and officer and took no action. The nation ought not now to be
heard to deny the rights it conferred and for years acquiesced in according to
and during which it received the benefit of his service and allegiance.
The power of one of these affiliated nations alone, without concurrence of the
other, is a question largely of how they themselves in practice regarded their
rights and obligations. None are concerned but themselves. Their treaties,
laws, usages, and customs are the rule of guidance fixed by Congress for final
administration and distribution of their communal property, By the treaty of
120 LAWS AFFECTING THE FIVE CIVILIZED TKIBES. %
June 30, 1855 (11 Stat., Gil) their lands were made inalienable, except by con
sent of both tribes, but the Chickasaws were designated a district. The separate
autonomy of both tribes was preserved with right to regulate their awn internal
affairs. Members of each tribe were permitted to settle within jurisdiction of
the other. By Article XXVI of the treaty of April 28, 18GG, the rights granted
were to " extend to all persons who have become citizens by adoption or inter
marriage of either of said nations or who may hereafter become such." Sepa
rate autonomy implies right and power in the proper authority of each nation
to determine who are, or ought to be, its citizens. Such has been the practice
of both nations. As shown by its published laws, the Choctaw Nation by act
of its council assumed to admit persons to its citizenship at least as early as
October, 1849. Such was probably its usage from immemorial ancient time, as
was that of other tribes generally. In 1858 it admitted the Belusha clan, said
to consist of 94 persons, and in the same year a number of ('reek citizens.
Shall all citizens so admitted and their descendants born to Choctaw allegiance
be now struck from the rolls? The Chickasaw Nation by its council exercised
the same right. In October, 1S7G, it admitted to its citizenship the former
Indian agent, D. H. Cooper, presumably a white man citizen of the United States,
in grateful acknowledgment of his faithful service in guarding the interests of
the Indian people as agent. Neither nation seems ever to have protested against
such acts of the other, and neither seems ever to have conceived the idea that
consent of the other was necessary, or sought its concurrence. The treaty of
18GG, supra, to which both nations were parties, by Articles XXVI and
XXXVIII, clearly recognized introduction of persons not citizens, even white
persons, into the tribes, either by adoption or by intermarriage. The United
States recognizes the right of the Indian nations to adopt white persons into
the tribe. In re Mayfield (141 U. S., 107, 114) ; Roff v. Burney (108 U. S., 218,
22). In the latter case the court held :
Matilda Bom-land was not a Chickasaw by blood, but one upon whom the right of
Chickasaw citizenship had been conferred by an act of the Chickasaw legislature. The
citizenship which the Chickasaw legislature could confer it could withdraw. The only
restriction on the power of the Chickasaw Nation to legislate in respect to its internal
affairs is that such legislation shall not conflict with the Constitution or laws of the
United States, and we know of no provision of such Constitution or laws which would be
set at naught by the action of a political community like this in withdrawing privileges
of membership in the community once conferred.
The court further held (p. 223) that such matter was (before the act of June
28, 1898) one of exclusive cognizance of the Indian authorities, and that their
" determination is not subject to correction by any direct appeal from the
judgment of the Chickasaw courts."
I am therefore of opinion that the act of admission of Coleman and others,
whether he had Choctaw blood or not, was within the legislative power of the
Choctaw Nation, without need of concurrence of the Chickasaw legislature, and
that the act being unrepealed and no fraud being shown in its procurement, it is
conclusive upon the Commission to the Five Civilized Tribes, and that the
applicants were properly held to be entitled to be enrolled.
Respectfully,
FRANK L. CAMPHELL,
Assistant Attorney-General.
Approved March 17, 1905.
E. A. HITCHCOCK,
Secretary.
DEPARTMENT OF JUSTICE,
Washington, D. C., December 7, 190 Jf.
The honorable the SECRETARY OF THE INTERIOR.
SIR: I have the honor to reply to your communication of October 13, 1904.
You advise me: That in making up final rolls of the Choctaw Indians a ques
tion has arisen as to the power of the Commission to the Five Civilized Tribes
to inquire and determine whether persons admitted to citizenship by an act of
the Choctaw National Council should be placed thereon. That the Indians
claim the Commission may investigate the right of any person whose name has
been placed upon a tribal roll by virtue of an act of council, and if it be found
that he was not of Choctaw blood and the act admitting him was obtained by
bribery and false testimony, may strike his name therefrom. That the ques
tion is directly presented in the application of Richard B. Coleman et al, and
will arise in other cases.
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 121
Yon transmit to me the record (some 375 pages) of Coleman's application and
request advice as to the power and authority of the Commission to ignore the
act of the Choctaw National Council admitting him to citizenship if it be found
its passage was secured by bribery, perjury, or other unlawful means.
Your attention is called to the rules of this Department prohibiting investi
gation here of a record like the one sent for the purpose of ascertaining what it
establishes. A request for an opinion by the head of any Department should be
accompanied by a clear and distinct statement of the facts of the concrete case
in reference to which it is desired. Opinions are not given upon hypothetical
questions and only when necessary for a decision of a particular matter wherein
action must be taken and in reference to which the exact facts have been ascer
tained and reported to me. An excellent plan is to follow, as near as may be,
such course as would be proper in submitting a controversy for the decision of a
court upon an agreed statement of facts.
In view of the foregoing I must decline to give you a formal opinion upon the
subject about which you have inquired. I have, however, given it consideration
with a view of aiding you in what appears to be a matter of unusual importance.
The act of Congress approved June 28, 180$ (30 Stat., 502), provides:
Said Commission is authorized and directed to make correct rolls of the citizens by
blood of all the other tribes, eliminating from the tribal rolls such names as may have
been placed thereon by fraud or without authority of law, enrolling; such only as may have
lawful right thereto and their descendants born since such rolls were made, with such
intermarried white persons as may be entitled to Choctaw and Chickasaw citizenship
under the treaties and the laws of said tribes.
It appears to me the above-quoted provisions of the statute impose upon the
Commission to the Five Civilized Tribes the duty and give it the power to deter
mine whether any name appearing upon a tribal roll was placed there by fraud
or without authority of law, and that the mere fact that such enrollment was by
virtue of an act of the National Council is not sufficient to preclude an inquiry.
An act of the Council should be treated with respect as prima facie valid and
efficacious, and nothing done as the result thereof should be lightly set aside;
but if it clearly appears that the act was procured by deliberate fraud and per
jury I do not think Congress intended that benefits thereunder should be en
joyed.
Under separate cover I return the record transmitted with your letter and
also briefs submitted by counsel.
Very respectfully, W. A. DAY,
Acting Attorney-General.
OFFICE OF INDIAN AFFAIRS,
Washington, D. (7., September 28, 190 'i.
The honorable the SECRETARY OF THE INTERIOR.
SIR: There is inclosed a report from the Commission to the Five Civilized
Tribes, dated August 25, 1904, transmitting the record relative to the applica
tion of Richard B. Coleman et al. for enrollment as citizens of the Choctaw
Nation.
Richard B. Coleman applied for the enrollment of himself and his children, Ida
C. Walker, Bettie W. Cooper, Bennetta Cooper, Henry A. Cooper, AVillie N. Cole
man, as citizens by blood, and for the enrollment of his wife, Eva Coleman, as a
citizen by intermarriage.
Richard S. Coleman, son of Richard B. Coleman, applied for the enrollment of
himself and his minor children, Winfield and Eva F. E. Coleman, as citizens
by blood, and for the enrollment of his wife, Annie E. Coleman, as a citizen by
intermarriage.
Subsequently application was made for the enrollment of Ida May and Ruth
St. Clair Coleman, children of Richard S. Coleman, born after his original
application was made, and for Richard W. Coleman, child of Bettie W. Cooper,
and Coleman Carlota Walker, child of Ida C. Walker, both of said children
having been born subsequent to the date of the original applications of their
parents.
August 8, 1004, Commissioners Needles and Breckinridge rendered a decision,
holding that Richard B. Coleman, Ida C. Walker, Bettie W. Cooper, Bennetta
Coleman, Henry A. Coleman, Willie N. Coleman, Richard S. Coleman, Winfield
Coleman, Eva F. E. Coleman, Ida May Coleman, and Ruth St. Clair Coleman,
and Richard W. Cooper and Coleman Carlota Walker were enttled to enrol linen t
as citizens by blood of the Choctaw Nation.
122 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
They did not pass upon the applications of Eva and Annie Coleman for enroll
ment as intermarried citizens. The same day Commissioner Bixby rendered a
dissenting opinion, holding that the applicants who applied for enrollment as
citizens hy blood are not entitled to enrollment as such. The record in the case
shows that on November 8, 1889, Richard B. Coleman, Richard S. Coleman, Ben-
netta Coleman, Henry A. Coleman, Willie N. Coleman, Ida C. Walker, and Bet-
tie W. Cooper were admitted to citizenship in the Choctaw Nation by act of the
general council.
A majority of the Commission holds that under the opinion of the Assistant
Attorney-General of February 18, 1904 (I. T. D. 7118-1903, 1434-1904) they have
no power to inquire as to whether the admission was obtained by fraud, and
that the principal applicants having been admitted, said principal applicants
and their children are entitled to enrollment.
Mr. Bixby says that he is clearly of the opinion from the evidence in the case
that the citizenship committee of the general council which passed upon the
petition of the applicants and upon which evidence their admission to the
Choctaw Nation was based was fraudulent, false, and misrepresenting.
The testimony in the case is not entirely satisfactory to this office, and for
the reasons hereinafter set forth the office will not at this time enter into a
complete discussion of the case, as it is .considered that there is a very material
point which should be settled before the Department passes upon the right of
the applicants to enrollment.
Richard B. Coleman claims that he is a son of Francis S. Coleman and Ann
Coleman, nee Bedford, and that his father, Francis S. Coleman, was a son of
John Coleman, who lived in Alabama.
His mother was a daughter of John Bedford. When Richard B. Coleman was
admitted in 1889, testimony was introduced which showed that John Coleman,
of Alabama, had several children, one by the name of Frank, who was sent to
Kentucky to be educated and did not return to Alabama. John Coleman was a
white man, and from the testimony it appears that he was first married to a
white woman and subsequently to an Indian woman.
William B. Pitchlyn, the record shows, testified before the committee of the
council that Frank Coleman, son of John Coleman, of Alabama, was a child by
a former wife and not by said Coleman's Indian wife.
Richard B. Coleman and other parties to this case attempted to be admitted
to citizenship in the Choctaw Nation in 1887 and 1888, but were rejected. They
again applied in 1889 and were rejected, but after said rejection another act
was introduced admitting Richard B. Coleman and certain members of his
family to citizenship, which \vas approved by the principal chief November 8,
1889.
Francis S. Coleman, about 1841 or 1842, lived in Kentucky and was married
there. lie removed to Missouri, where Richard B. Coleman was born, in 184G,
and then to Texas. Richard B. Coleman removed to the Choctaw Nation in
1880, after his father's death.
The records of this office show that there was a John Coleman who was
awarded land under the provisions of article 19 of the treaty of September 27,
1830. He was awarded fractional section 2, lot D of fractional section 1, and
the north half of section 11, township 21 north, range 2 west. This land is west
of the Tombigbee River, in Alabama.
Mrs. Harriet Henry, of Boone County, Mo., 89 years of age, in her deposi
tion states that her maiden name was Harrriet Coleman ; that she is a daughter
of Francis Coleman ; that her mother's maiden name was Elizabeth Gordon ;
that her father was born and raised in Orange County, Va. ; that she does not
know where her mother was born, but thinks she was born in Orange County,
Va. ; that her father, Francis Coleman, had a son named Francis S. Coleman,
whose wife's maiden name was Ann Elizabeth Bedford, daughter of John Bed
ford ; that Francis S. Coleman was born and raised in Harrison County, Ky. ;
that he removed from Kentucky to Missouri, thence to Denton, Tex., where he
died. She says that Francis S. Coleman, so far as she knew, had the following-
named children : John Francis, George, Richard, two sons who were killed by a
falling tree, Stephen, Hattie, Henrietta, Mary. She was asked to " give the
names of all yaur father's children and brothers and sisters of Francis S.
Coleman," and replied :
Whiteliead Coleman, Richard Coleman, Robert Coleman, Francis S. Coleman, America
Coleman, Eliza Coleman, Nancy Coleman, and myself by fatber's last wife.
From this testimony it appears that Harriet Henry may be an aunt of
Richard B. Coleman.
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 123
R. L. Coleman, of Columbia, Mo., 78 years of age, states in his deposition that
he is a yon of Whitehead Coleman ; that his father had a brother by the name
of Francis S. Coleman, and that said Francis S. Coleman and his father were
brothers of Mrs. Harriet Henry ; that his grandfather's name on his father's
side was Francis Coleman ; that his grandfather's name on his father's side
was Elizabeth Coleman, nee Gordon ; that he believed his grandfather was
born and raised in Orange County, Va., and he thinks that his grandmother
was raised in the same place ; that his grandfather and grandmother had
children named Whitehead Coleman, Richard Coleman, Robert Coleman, Francis
S. Coleman, America Coleman, Elizabeth Coleman, Nancy Coleman, Harriet
Coleman ; that his uncle, Francis S. Coleman, was born and raised in Harrison
County, Ky. ; that Francis S. Coleman married Ann Elizabeth Bedford, wife of
John Bedford; that Francis S. Coleman removed from Kentucky to Spring
field, Mo. ; that he died at or near Denton, Tex., and that the children of
Francis S. Coleman, so far as he knew them, were John Francis, George,
Richard (Joe and Robert, killed while small boys), Sarah Elizabeth, Mary,
Henrietta, Harriet, Stephen. From this deposition it would seem that II. L.
Coleman may be a cousin of Richard B. Coleman.
The principal applicant, Richard B. Coleman, testified that his father, Francis
Coleman, was, to the best of his knowledge, born in Mississippi on the Tom-
bigbee River and educated at Flatmouth, Ky. ; that when he returned to Missis
sippi, after having received his education, the Choctaw Indians had removed
west, and he went back to Kentucky and married a daughter of Dr. John
Bedford, of Flatmouth, and removed to Greene County, Mo., in 1844; resided
there a while, and then moved to Cooper County, Mo., from there to Johnson
County, and from there to Denton, Tex., where he died.
The record does not show whether Harriet Henry or R. L. Coleman claim to
be or are aunt and cousin, respectively, of Richard B. Coleman, neither does
it show whether they or their father or grandfather are or were of Indian
descent.
Certified copy of the deed record book 1, page 587, shows that on August
2G, 1800, Francis Coleman and Eliabzeth Coleman, his wife, of Harrison County,
Ky., deeded certain property to John McKinley. Certified copy of the records
of the county court of Harrison County, Ky., Book " B," page 293, shows that
certain persons were appointed by formal order of the court to divide the
slaves of which Francis Coleman died seized, among his heirs and among other
heirs the following names appear: Covington Coleman, Whitehead Coleman,
America Coleman, Richard Coleman, Elizabeth G. Coleman, Robert S. Coleman,
Francis Coleman, N. C. Coleman, Harriet Coleman.
It is respectfully recommended that the record be returned to the Com
mission with direction to ascertain, if possible, whether Harriet Henry and
her brothers and sisters claimed to be of Choctaw Indian blood and whether
her father and grandfather claimed that they were of Choctaw Indian blood,
and that the same information be obtained concerning R. L. Coleman, his
brothers and sisters, father, and grandfather, also that the names of the
brothers and sisters of Richard B. Coleman be ascertained.
Very respectfully,
A. C. TONNER,
Acting Commissioner.
OFFICE OF THE SECRETARY,
Washington, D. C., March l.~>, 190u
The COMMISSIONER TO THE FIVE CIVILIZED TRIBES,
Muscogcc, Ind. T.
SIR: On March 27, 1905, the Department, following the approved opinion of
the Assistant Attorney-General of March 17, 1905, affirmed the decision rendered
August 8, 1904, by the majority of the Commission to the Five Civilized Tribes
in the matter of the application of Richard B. Coleman et al. for enrollment
as citizens of the Choctaw Nation and directed the Commission to enroll the
persons in said case claiming enrollment by blood.
On April 21, 1905, a motion was filed by the attorneys for the Choctaw and
Chickasaw nations requesting a reconsideration of said opinion of March 17,
1905. This motion was denied September 29, 1905, in a letter which was pre
pared in the office of the Assistant Attorney-General. The action so taken was
intended merely as an interlocutory decision. (See telegram to you dated Octo
ber 20, 1905.)
124 LAWS AFFECTING THE FIVE CIVILIZED TKIBES.
Upon further consideration of this case a second opinion, adverse to the con
tentions of the attorneys for the Choctaw and Chickasaw nations, was rendered
by the Assistant Attorney-General March 10, 190G. This opinion was approved
by the Department the same day, and a copy of the same is inclosed herewith.
In accordance with said opinion of March 10, 1900, the decision of the Com
mission of August 8, 1904, is reaffirmed, and you are directed to enroll the
applicants in the case of Richard B. Coleman et al., claiming enrollment by blood,
as citizens of the Choctaw Nation. This decision is not to be construed as an
interlocutory one.
Respectfully, THOS. RYAN,
First Assistant Secretary.
OFFICE OF THE ASSISTANT ATTORNEY-GENERAL,
Washington, D. C., March 10, 1906.
The SECRETARY OF THE INTERIOR.
SIR: I received, by reference of June 1, 1905 (I. T. D., 9871-1905), the motion
of counsel for the Choctaw and Chickasaw nations for reconsideration of my
opinion of March 17, 1905, in the case of Richard B. Coleman and others
(I. T. D., 12430-1904) for enrollment as citizens of the Choctaw Nation. There
are two grounds for the motion :
1. That as Coleman alleged one state of facts to the council of the Choctaw
Nation as basis of his petition for admission to citizenship, whereas another
state of facts existed, therefore his admission was procured by fraud within the
meaning of the law.
2. That admission by the council, or tribal authority, of one nation alone is
insufficient in case of the associated Choctaw and Chickasaw nations, and that
as the Chickasaw council never concurred in Coleman's admission it was without
authority of law.
Coleman originally claimed right to admission by reason of Choctaw blood,
and alleged himself to be the son of Frank Coleman, who was son of John Cole-
man and a Choctaw wife, Chapponia, and was born in Mississippi prior to the
migration. The evidence shows that he was son of Francis S. (commonly called
Frank), who was born in Kentucky, son of Francis (or Frank) and his wife,
Elizabeth Gordon, a white woman, native of Virginia ; that Francis was son of a
Coleman whose first name is not shown, and who may have had a Choctaw wife
of whom Francis may have been born ; but the lapse of time involved by adding
a generation to the lineage, as stated in my former opinion herein, made the fact
cf Coleman's claim of Choctaw descent improbable.
I am, however, of opinion that this does not prove that applicant perpe
trated a fraud upon the Choctaw council. There was no attempt at proof that
Coleman knew that the line of descent alleged was not true, nor yet that he
asserted the claim without belief of its truth or in reckless disregard of its
truth. There was no proof of a scienter. In Ming et al. v. Wollfolk (116 U. S.,
599, (502), the court quote and approve the rule laid down in Watson v. Poulson
(15 Jurist, 1111), that there must be proof of "the telling of an untruth, know
ing it to be an untruth, with intent to induce a man to aker his condition and
his altering his condition in consequence whereby he sustains damage." This
rule has had general approval in the courts. It is laid down by Pomeroy (sec.
884, Equity Jurisprudence, 2d ed.) that —
No misrepresentation is fraudulent at law unless it is made with actual knowledge of
its falsity or under such circumstances that the law must necessarily impute such
knowledge to the party at the time when he makes it.
The lack of proof was fully considered in my former opinion herein, and I
have no doubt as to the conclusion then reached and adhere thereto. Nor have
I doubt upon the second contention, and deem it unnecessary to repeat the
reasons then given or to enlarge thereon, as no further citation of authority to
the contrary is now advanced.
The motion requests that I pass upon the competency of the testimony of
Harriett, Henry, and R. L. Coleman, taken on private examination by the Com
mission without notice to Coleman. The evidence in question is not decisive of
the case, for if it be considered as absolutely establishing every fact of which the
witnesses spoke, it fails to establish fraud by R. B. Coleman, either by direct
proof or by proof of such circumstances as necessarily impute to him a fraudu
lent design. In my opinion, however, evidence so taken can not be considered
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 125
in any tribunal having regard to elementary principles of judicial conduct In
The Ottawa (3 Wall., 268, 271) the court held that—
Cross-examination is the right of the party against whom a witness is called, and the
right is a, valuable one as a means of separating hearsay from knowledge, error from
truth, opinion from fact, and inference from recollection, * * * and of testin°-
the intelligence, memory, impartiality, truthfulness, and integrity of the witness.
Greenleaf on Evidence (IGth ed., sec. 440), citing Starkie's Evidence (vol. 1,
p. 160), says:
Cross-examination has been justly said to be one of the principal, as it certainly is one
of the most efficacious, tests which the law has devised for the discovery of truth.
In Mann v. Huk (3 L. D., 452, 453-454), Secretary Lamar, speaking in a case
wherein an attorney had instructed witnesses to refuse to answer pertinent
cross- interrogatories, said :
Thus Huk was deprived of his undoubted right to cross-examine, subject to exceptions,
the adverse witnesses by this high-handed and scandalous conduct of Mann's attorney,
who set at defiance the rules governing the orderly administration of justice. It is not
to be supposed that I will consider testimony taken under such circumstances as these,
but rather that it should be discarded as unworthy of belief, because the protestant,
speaking through the mouth of his attorney, was unwilling to submit his witnesses and
himself to the test of cross-examination.
A meritorious and honest cause is seldom injured by cross-examination of an
honest witness adduced to testify in its support. Privy examination of wit
nesses is abhorrent to the elementary principles of justice as conceived of among
English-speaking people, and the toleration of such practice would so tend to
subvert all safeguards of property rights, liberty, and life that statements made
by witnesses examined without notice to the person whose rights would be
thereby affected and without opportunity to such party to confront and inter
rogate them should never be admitted to a place in the record. If admitted
they are not competent and should be wholly disregarded.
Very respectfully,
FRANK L. CAMPBELL,
Assistant Attorney-General.
Approved March 10, 190G.
E. A. HITCHCOCK,
Secretary.
OFFICE OF THE SECRETARY,
Washington, D. G., May 2'1, 1904.
COMMISSION TO THE FIVE CIVILIZED TRIBES.
Muscoycc, Ind. T.
GENTLEMEN : March 19, 1904, you transmitted the record in the matter of the
application of Thornton D. Pearce for the enrollment of himself as a citizen by
intermarriage of the Choctaw Nation, including your decision of the same date,
holding that the applicant should be enrolled.
The evidence shows that the applicant is a white man ; that on January 14,
1883, he was married, in accordance with the laws, customs, and usages of the
Choctaw Nation, to Parmelia A. Folsorn, a recognized and enrolled citizen of
the Choctaw Nation, whose name appears upon the 1893 leased district pay
ment roll of the Choctaw Nation, Blue County, page 93, No. 9G8 ; that his
Choctaw wife died in the year 1895; that subsequent thereto the applicant
married a white woman, having no rights of Choctaw citizenship by blood. It
also appears that the applicant has resided continuously in the Choctaw
Nation since 1878, up to and including September 25, 1902, and that his name is
found, as an intermarried citizen, upon the 189G Choctaw census roll. You cite
as precedents for your decision the action of the United States Chickasaw
citizenship court in the case of Thomas Brinnon v. The Choctaw and Chickasaw
Nations, decided on January 20, 1904.
Reporting May 17, 1904, the Acting Commissioner of Indian Affairs recom
mends that your decision be approved. A copy of his letter is inclosed.
Article 38 of the treaty of 18GG between the Choctaw and Chickasaw nations
and the United States provides :
Every white person who, having married a Choctaw or Chickasaw, resides in the said
Choctaw or Chickasaw Nation, or who has been adopted by the legislative authorities, is
to be deemed a member of said nation, and shall be subject to the laws of the Choctaw
and Chickasaw nations, according to his domicile, and to prosecution and trial before
their tribunals, and to punishment according to their laws, in all respects as though he
was a native Choctaw or Chickasaw.
126 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
Section 5 of the act of the Choctaw council, approved November 9, 1879, pro
vides :
Should any man or woman, a citizen of the United States or of any foreign country,
become a citizen of the Choctaw Nation by Intermarriage as herein provided, and be left
a widow or widower, he or she shall continue to enjoy the rights of citizenship unless he
or she shall marry a white man or woman or person, as the case may be, having no
rights of Choctaw citizenship by blood. In that case all his or her rights acquired under
the provisions of this act shall cease.
In the case of F. R. Robinson v. The Choctaw Nation, cited by you, the facts
are similar to the facts in the case under consideration. The applicant was a
white man, who married a Choctaw woman in accordance with the laws of the
Choctaw Nation. She died, and the applicant afterwards married a white
woman, not a citizen of the Choctaw Nation. The United States court for the
central district of Indian Territory held that the applicant was entitled to be
enrolled. In this case the court said :
The treaty makes every white man who may marry a Choctaw or Chickasaw woman a
citizen, to use the language of the last words of article 38, above set out, " in all respects
as though he was a native Choctaw or Chickasaw." I»y this provision of the treaty
there is to be no difference between a citizen by virtue of his marriage and a native
Choctaw. The}7 are to enjoy equally and alike all of the benefits of Choctaw citizenship,
as well as share the burdens. Any act, therefore, of the Choctaw council passed after
the ratification of the treaty which makes a distinction between them, granting to one
greater privileges or rights, or imposing on him more burdens than the other, or which
shall undertake to enlarge or curtail the rights and privileges which flow from citizen
ship as to the one and not as to the other, would be in violation of this provision of the
treaty and therefore void. An act which puts the white man in any respect in a differ
ent attitude or condition than the Indian is void.
Ill the case of Thomas Brinnon v. The Choctaw Nation, cited by you, the facts
are very similar to those in the case under consideration. The Choctaw-
Chickasaw citizenship court held that the applicant in that case was entitled to
be enrolled. The court in this case said :
It is our opinion that when the applicant complied with the thirty-eighth article of the
treaty by marrying an Indian woman by blood according to the laws of that nation, and
resided in the Territory continuously since that time, he became vested with certain per
sonal rights ; those rights he should not be divested of by a subsequent act of the Choc
taw council.
The courts' decisions in the cases above referred to, and which you cite as
precedents for enrolling the applicant, do not necessarily control the Department
in the adjudication of cases transmitted by you. However, the Department
considers that your decision holding that the applicant should be enrolled is in
accordance with the law, and the same is hereby approved.
Respectfully,
THOS. RYAN, Acting Secretary.
OFFICE or INDIAN AFFAIRS,
Washington, D. C., May 17, 1904.
The honorable the SECRETARY OF THE INTERIOR.
SIR: Referring to Department letter of May 14, 1904 (I. T. D. 3956), I have
the honor to inclose herewith a report from the Commission to the Five Civilized
Tribes, dated March 9, 1904, transmitting the records relative to the applica
tion of Thornton I). Pearce for enrollment as an intermarried citizen of the
Choctaw Nation.
March 9, 1904, the Commission to the Five Civilized Tribes decided that the
applicant is entitled to enrollment as an intermarried citizen. They quote from
article 38 of the treaty of 18GO, section 5 of an act of the Choctaw council of
November 9, 1875 (Durant Dig., 22G), from the decision of the United States
court for the central district of the Indian Territory, lion. William II. II. Clay
ton presiding, wherein the court, on June 29, 1897, in the matter of F. H.
Robinson r. The Choctaw Nation, held that Robinson was entitled to enroll
ment as an intermarried citizen, and refer to the holding of the United States
court for the southern district of the Indian Territory, Hon. Hosea Townsend
presiding, in which it was held by that court in cases similar to the Robinson
case that applicants were not entitled to enrollment, and quote from the decision
of the Choctaw-Chiclcasaw citizenship court in the case of Thomas Brinnon
v. The Choctaw and Chickasaw Nations.
The record in this case shows that the applicant, Thornton D. Pearce, is a
white man; that on January 14, 1883,' he was married to Mrs. P. A. Folsom, a
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 127
citizen of the Choctaw Nation, and that said marriage was performed in accord
ance with the laws of the nation.
The applicant has resided in the Choctaw Nation since 1878. His citizen
wife died in 1895, and thereafter he married C. T. Timberlake, a white woman.
Article 38 of the treaty of I860 is as follows :
Every white person who, having married a Choctaw or Chickasaw, resides in the said
Choctaw or Chickasaw Nation, or who has heen adopted by the legislative authorities,
is to be deemed a member of said nation and shall be subject to the laws of the Choctaw
and Chickasaw nations, according to his domicile, and to prosecution and trial before
their tribunals, and to punishment according to their laws, in all respects as though he
was a native Choctaw or Chickasaw.
And the fifth section of the act of the Choctaw council of November 9. 1875,
provides :
Should any man or woman, a citizen of the United States or of any foreign country,
become a citizen of the Choctaw Nation by intermarriage as herein provided, and be left
a widow or widower, he or she shall continue to enjoy the rights of citizenship ; unless
he or she shall marry a white man or woman or person, as the case may be, having no
rights of Choctaw citizenship by blood. In that case all bis or her rights acquired under
the provisions of this act shall cease.
In the case of F. H. .Robinson, above mentioned, which is similar to the case
under consideration, the United States court for the central district of the
Indian Territory, held in 1897 that the applicant was entitled to enrollment
As stated by the Commission, the United States court for the southern district
of the Indian Territory in similar cases in 1897 held that the applicants were
not entitled to enrollment. The citizenship court on January 29, 1904, in the
Thomas Brinnon case said :
The treaty of 1866 provided the applicant should be a member of the Choctaw Nation
upon his complying with the treaty by marrying an Indian and residing in either the
Choctaw or Chickasaw nation. If the act of council as above referred to set out
was an attempt to withdraw the right from the applicant which has been conferred by
the treaty, which is paramount to an act of the Choctaw council, of course the council
would have no such right. What rights did the applicant acquire by reason of his mar
riage to a Choctaw Indian and residence in the Choctaw Nation under the treaty of
1866? Did the membership in the tribe simply mean a right on the part of the Choc
taw Nation to try the applicant in their courts and subject him to the pains and penal
ties of their laws without bestowing upon him any further rights that the real Indian
had by reason of their membership in the tribe? We hardly think those who made the
treaty intended to impose these requirements upon those who were admitted as members
of this tribe by intermarriage without also bestowing upon the applicant some other
benefits guaranteed to the real Indian. When a white man married an Indian woman
and became a member of a tribe of Indians he forsook his own people, became isolated
from his own race, and became an Indian for many intents and purposes, then why
should he be deprived of all those rights other members of the tribe were entitled to
enjoy? It is our opinion that when the applicant, complied with the 38th article of the
treaty by marrying an Indian woman by blood according to the laws of that nation and
resided in the Territory continuously since that time, he became vested with certain
personal rights. Those rights he should not be divested of by a subsequent act of the
Choctaw council. We are, therefore, of the opinion that this applicant is entitled to
citizenship in the Choctaw Nation and is therefore entitled to a judgment by this court
admitting him to such, and a judgment will therefore be entered accordingly.
In view of the records in this case, and considering the position taken by Judge-
Clayton in the Robinson case, and the holding of the citizenship court in the
Brinnon case, and the recommendation of this office of May 14, 1902, in the
Matt Davis case, which is, in so far as Matt Davis is concerned, almost identical
with this case, the office is of the opinion that the decision of the Commission is
correct, should be approved, and its approval is recommended.
Very respectfully,
A. C. TON NEK, Acting Commissioner.
OFFICE OF THE SECRETARY,
WaxliinytoH, D. C., August £9,
COMMISSIONER TO THE FIVE CIVILIZED TRIF.ES,
Muscoyce, Ind. T.
GENTLEMEN : On May 2, 1904, you transmitted , the record relative to the appli
cation of Ella Jones for enrollment as a citizen by intermarriage of the Choctaw
Nation, including your decision of the sajne date, rejecting the applicant.
In your decision you state that it does not appear that the applicant " has
ever been married in accordance with the laws, customs, and usages of the
Choctaw Nation to a recognized and enrolled citizen of said nation."
Reporting October 22, 1903, the Commissioner of Indan Affairs recommends
that your decision be not approved, and that the applicant be enrolled as a
128 LAWS AFFECTING THE FIVE CIVILIZED TKIBES.
citizen by intermarriage of the Choctaw Nation. In his letter the Commissioner
states that he does not understand that it is necessary for a woman to be mar
ried to a citizen of the Choctaw Nation in accordance with the laws of the
nation in order to confer upon her rights of intermarried citizenship.
November (>, 1903, you were directed to notify the applicant and the attorneys
for the Choctaw Nation of the recommendation of the Commissioner, and to
allow them time within which to file argument in the case. In your letter of
August 3, 1904, you state that no argument has been filed, either by the applicant
or the attorneys for the nation.
The Department concurs in the recommendation of the Commissioner, in his
letter of October 22, 1903. You are therefore directed to enroll Ella Jones as a
citizen by intermarriage of the Choctaw Nation.
A copy of Indian Office letter of August 20, 1904, transmitting your letter
of August 3, is inclosed.
Respectfully, THOS. RYAN, Acting Secretary.
OFFICE OF INDIAN AFFAIRS,
Washington, August 20, 190Jh
The honorable SECRETARY OF THE INTERIOR.
SIR: Referring to Department letter of July 19, 1904 (I. T. D. 7578-1903),
there is inclosed report from the Commission to the Five Civilized Tribes
stating that on November 19, 1903, Ella Jones and the attorneys for the Choc
taw and Chickasaw nations were notified that the Commission would, within
thirty days from that date, receive such argument as might be submitted in
the matter of the application of Ella Jones for enrollment as an intermarried
citizen of the Choctaw Nation, arid that on December 19, 1903, Messrs. Mans
field, McMurray & Cornish addressed a letter to the Commission, in which they
stated :
The question of law in this case is as to whether a white person, marrying a citizen
of the Choctaw Nation residing in the Chickasaw Nation, is required to comply with the
intermarriage laws of the Chickasaw Nation in order to acquire citizenship hy inter
marriage.
This question of law arises in the case of Nettie Howell v. The Choctaw and Chickasaw
Nations, No. 101 on the Tishomingo docket of the Choctaw and Chickasaw citizenship
court, created and acting under the act of July 1, 1902, entitled :
"An act to ratify and confirm an agreement with the Choctaw and Chickasaw tribes
of Indians, and for other purposes."
The purpose of this communication is to comply with the requirements of the honor
able Secretary of the Interior, as set forth in his letter of direction to the Commission
to the Five Civilized Tribes dated November 18, 1903, and your letter dated November
25, 1903, transmitting the same.
We have to request that final action in this case by the Commission to the Five
Civilized Tribes and the honorable Secretary of the Interior be postponed until final
decision by the Choctaw and Chickasaw citizenship court in the case of Nettie Howell v.
Choctaw arwfl Chickasaw Nations, above referred to.
The Commission say that no argument has been filed in the matter of the
application of Ella Jones for enrollment as an intermarried citizen of the
Choctaw Nation either in behalf of the applicant or the Choctaw and Chicka
saw nations.
Very respectfully, W. A. JONES, Commissioner.
OFFICE OF THE SECRETARY,
Washington, D. C., February 3, 1905.
COMMISSION TO THE FIVE CIVILIZED TRIRES,
Muscogcc, Ind. T.
GENTLEMEN : In accordance with the opinion of the Assistant Attorney-Gen
eral of January 28, 1905 '(copy inclosed), approved by the Department, the
application of Emma McMenamin for enrollment as a citizen by intermarriage
of the Choctaw Nation is hereby rejected.
The case was submitted with your letter of October 31 and Indian Office letter
of November 11, 1904. A copy of the letter of November 11, 1904, is inclosed.
Respectfully,
THOS. RYAN, Acting Secretary.
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 129
OFFFICE OF THE ASSISTANT ATTORNEY-GENERAL,
Washington, D. C., January 28, 1905.
The SECRETARY OF THE INTERIOR.
SIR : I received, by reference of December 27, 1904, with request for opinion
thereon, the record in the application of Emma McMenamin for enrollment as
a citizen, by intermarriage, of the Choctaw Nation.
The applicant claims enrollment because of a marriage to Michael McMen-
ainin, a white man, whose enrollment as a citizen by intermarriage was finally
approved September 12, 1903. At some time not shown by the record McMen-
amin, a white citizen of the United States, under forms of Indian law married
Harriett Gardner, a citizen of the nation. He was granted a divorce from her
April 24, 1871, by the Indian court. May 4, 1870, he married Emma Williams,
the claimant, a white citizen of the United States, under forms of Indian law.
She applied to the Commission, under the act of June 10, 1890 (29 Stat, 321,
339), for enrollment, which was denied December 8, 1890. She took no appeal.
The present Commission, October 15, 1904, denied her enrollment. The Indian
Oflice. November 11, 1904, advised affirmance of that decision.
The question presented is, whether rights of citizenship in the Choctaw
Nation are acquired by one alien to its allegiance by intermarriage with
another not of Indian blood, not born to such allegiance, who acquired citi
zenship in the nation by intermarriage with one of its native citizens.
The acquiring of an allegiance to which one is not born can be accomplished
only by compliance with some law governing the state to which allegiance is
so acquired. No law or custom of the Choctaw Nation is shown whereby citi
zenship therein can be acquired by intermarriage of this description. No such
law of the nation has been found by me. Article XXXVIII of the treaty of
April 28, 180(5 (14 Stat., 709-779), which is a law of the United States and of
the Choctaw Nation, provides :
Every white person who, having married a Choctaw or Chickasaw, resides in the said
Choctaw or Chickasaw nation, or who has been adopted hy the legislative authorities, is
to be deemed a member of said nation, and shall be subject to the laws of the Choctaw
and Chickasaw nations according to his domicile, and to prosecution and trial before their
tribunals, and to "punishment according to their laws in all respects as though he was a
native Choctaw. or Chickasaw.
This provision confers rights of citizenship upon white persons who marry a
Choctaw or Chickasaw. These words in themselves imply a person of Indian
blood, born to the Choctaw or Chidvasaw allegiance. A reading of the treaty
also shows that other classes of citizens of the nation exist, who are designated
as " persons of African descent * * * heretofore held in slavery among
said nations," "Kansas Indians" (Article III). In Article XXVI the words
" Choctaws and Chickasaws " are used in contradistinction to another general
class of " persons who have become citizens by adoption or intermarriage." It is,
in my opinion, clear from the context of the treaty that the words " Choctaw "
or "Chickasaw," as used in Article XXXVIII, were used to designate, not the
citizenship generally, but such citizens as were of blood descent of those nations
as well as citizens. I am therefore of the opinion that citizenship in the nation
can not be acquired by one not born to its allegiance through intermarriage
with one also alien born, whose citizenship was acquired by intermarriage, and
that the Commission properly denied Mrs. McMenamin's enrollment.
Very respectfully,
FRANK L. CAMPBELL,
Assistant Attorney-General.
Approved January 28, 1905.
E. A. HITCHCOCK, Secretary.
OFFICE OF INDIAN AFFAIRS,
Washington, November 11,
The honorable the SECRETARY OF THE INTERIOR.
SIR: I inclose herewith a report from the Commission to the Five Civilized
Tribes, dated October 31, 1904, transmitting the record of the application for
enrollment as a citizen by intermarriage by Emma McMenamin.
October 15, 1904, the Commission decided adversely to the applicant.
The record shows that on December 8, 1890, this applicant was, by the Com
mission, denied admission to citizenship by intermarriage in the Choctaw Nation,
33753 — 00 M 9
130 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
from which decision no appeal was taken, and that her status as such citizen
has remained unchanged since that date.
In view of the record the approval of the Commission's decision of October
15, 1904, adverse to the applicant is recommended.
Very respectfully, • A. C. TONNER,
Acting Com in innioner.
OFFICE OF THE SECRETARY,
Washington, D. C,, April .7, WOt.
COMMISSION TO THE FIVE CIVILIZED TRIBES,
Muscogee, Ind. T.
GENTLEMEN : April 13, 1004, you transmitted the record in the matter of the
Choctaw case of William C. Thompson et al. (M. C. R., 341). Consolidated
with said case were the applications of several other applicants, entitled, respec
tively, "M. C. R., 0258, 6259, 517, 582, 516, 458, 581, 563, 310, 557, 583, and
7124."
All of the applicants above referred to claim the right to be identified as
Mississippi Choctaws ; also to be enrolled upon the regular roll of Choctaws
either by blood or by intermarriage.
In your decision of March 5, 1904, you held adversely to all of the applicants
above as to their claims for identification as Mississippi Choctaws and for their
enrollment as regular Choctaws. Reporting in the matter April 30, 1904, the
Acting Commissioner of Indian Affairs recommended that your action in the
matter be approved. A copy of his letter is inclosed.
Herein will be considered only the rights of the applicants in this case whose
application is entitled " M. C. R., 341." This embraces the applicnlion of Wil
liam C. Thompson for himself, for his wife, Sarah S. Thompson, for his minor
nephew, William R. Thompson, and for his minor grandniece, Sarah T. Stubble-
field, for enrollment as above stated. Separate letters will be written as to the
other applicants in this case whose applications are entitled and numbered as
indicated above.
William C. Thompson and the other applicants claiming by blood embraced
in M. C. R., 341, claim descent from certain Choctaws, named, respectively, Mar
garet McCoy, Ann Jones, Jim Jones, and William Thompson, sr., by and on
behalf of whom, it is alleged, application Was made to Colonel Ward, United
States agent, Choctaw Agency, Miss., for the benefits of article 14 of the treaty
of September 27, 1830, but whose applications were not received and recorded by
said agent.
The Department has considered the testimony taken at the various hearings
and the depositions constituting a part of the record in the case, in connection
with the records of the Indian Office relative to persons who complied or
attempted to comply with said article 14. From this examination the Depart
ment finds the proof insufficient to warrant the identification of any of the
applicants as Mississippi Choctaws. It therefore concurs in your decision con
cerning their rights as such.
But these applicants also claim enrollment as Choctaws by blood or inter
marriage. In this connection it is noted that pursuant to an act of the Choc
taw legislature a citizenship commission was appointed, which acted favorably
upon a petition of William C. Thompson and others for enrollment as Choc
taws. The action of the commission was indorsed upon Thompson's application
as follows :
William C. Thompson, together with the names appearing on the face of the within ap
plication (Sarah S. Thompson ; Arthur M. Thompson ; William C. Thompson, jr. ; Mary
M. Thompson (now McNeese) ; William McNeese, intermarried; Harold McNeese ; Terry
Thompson Stubblefield, dead brother's daughter ; Sarah T. Stubblefield, daughter of above ;
William R. Thompson, dead brother's son), lineal descendants of Margaret McCoy, are
hereby recognized and admitted to the citizenship of the Choctaw Nation or tribe of
Indians by the legally constituted Choctaw Census Commission, duly assembled at Kiowa,
Ind. T., this the 8th day of October, 1890, upon the testimony of Henry Perkins. Mrs.
Levina Franklin, they being enrolled Choctaw Indians by blood. The within-named
parties not being present, were passed for further enrollment.
A. E. FOLSOM,
Secretary of Census Committee.
The question as to whether William C. Thompson only is entitled to enroll
ment was submitted to the Assistant Attorney-General for this Department, and,
in an opinion rendered March 3, 1905, a copy of which is inclosed, approved by
the Department the same day, the Assistant Attorney-General held that the
recognition of William C. Thompson and those included in his application of
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 131
August 1, 1896, by the Choctaw committee, quoted above, was within the powers
of that body ; that the enrollment of said persons upon the 1890 census roll
pursuant to such recognition as not without authority of law or by fraud ; that
the Commission to the Five Civilized Tribes was in 189(3 without authority to
deny his enrollment, and that he was not barred by failure to appeal from said
decision made in excess of the powers of the Commission.
As the facts relating to William C. Thompson are set forth fully in said
opinion, it is unnecessary to make further statements herein concerning him.
In accordance with said opinion, you are directed to enroll him as a citizen by
blood of the Choctaw Nation.
In said opinion the Assistant Attorney-General held, further, that " such right
to be heard upon the merits of their claim to Choctaw citizenship was saved, not
merely to him, but to all the others embraced in his application, and then so
recognized, who were living in the Territory, having the same descent." The
application of William C. Thompson includes a request for the enrollment of
his wife as a citizen by intermarriage. It appears that she has resided with
him as his wife in the Indian Territory and in the Choctaw-Chickasaw country
since his removal thereto in 1887. There is no question as to the legality of
their marriage. Her name appears in the decree of the Choctaw committee of
October 8, 1896, quoted above, also upon the Choctaw census roll of 1896,
whereon it was placed by the revisory committee in January, 1897, opposite No.
15121. She is therefore considered entitled to enrollment as a Choctaw by inter
marriage, and you are directed to enroll her as such.
The third person included in application M. C. K. 341 is Sarah T. Stubble-
field. It appears that this applicant was born about the year 1895. She is a
grandniece of William C. .Thompson and resides with him in the Indian Terri
tory. Her name appears in the decree of the Choctaw committee of October 8,
1896, and upon the 1896 Choctaw census roll opposite No. 11815, whereon it was
placed by the revisory committee in January, 1897. You will place her name
upon the final roll of the Choctaw Nation as a citizen by blood.
The fourth person included in M. C. R. 341 is William R. Thompson. This
applicant is the son of Arthur Thompson, deceased, who was a brother of
William C. Thompson, the principal applicant herein. The said William R.
Thompson was born about the year 1883. It appears that he resides in the
Indian Territory with William C. Thompson, and that his name is included in
said decree of October 8, 1896, also that it appears upon the Choctaw census
roll of that year, whereon it was placed by the revisory committee in January,
1897. Under the circumstances it is considered that he is entitled to enroll
ment as a citizen by blood of the Choctaw Nation. You will accordingly place
his name upon the final roll thereof as such.
Respectfully, E. A. HITCHCOCK, Secretary.
OFFICE OF THE ASSISTANT ATTORNEY-GENERAL,
• Washington, D. C., March 3, 1905.
The SECRETARY OF THE INTERIOR.
SIR: I received by reference of January 10, 1905, the papers in the case of
William C. Thompson and others for enrollment as citizens of the Choctaw
Nation, the applicants also claiming identification as Mississippi Choctaws. The
reference states that :
In this case the question is presented, whether the refusal of the Commission to the
Five Civilized Trihes in 1896 to enroll Thompson as a citizen by blood of the Choctaw
Nation in the absence of an appeal was final. It is alleged that notice was not given
him by the Commission of its action. * * *
Your opinion is requested in connection with the Thompson case as to whether, under
the circumstances, William C. Thompson only is entitled to enrollment.
The record shows that August 1, 1896, William C. Thompson, claiming to be
grandson of Margaret McCoy, a half-breed Choctaw intermarried with a white
man, petitioned the Choctaw national council that the rights of a Choctaw citizen
be granted him and his family, making reference to an earlier similar petition
presented in 1879, then still unacted upon. A citizenship commission was
appointed by the tribal authorities pursuant to an act of the Choctaw legislature,
and the action of such commission was indorsed upon the application as follows :
William C. Thompson, together with the names appearing on the face of the within
application (Sarah S. Thompson; Arthur M. Thompson; William C. Thompson, jr.; Mary
M Thompson (now McNeese) ; William McNeese, intermarried; Harold McNeese ; Terry
Thompson Stubblefield, dead brother's daughter ; Sarah T. Stubblefield, daughter of above ;
William R. Thompson, dead brother's son), lineal descendants of Margaret McCoy, are
hereby recognized and admitted to the citizenship of the Choctaw Nation or tribe of
132 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
Indians by the legally constituted Choctaw Census Commission, duly assembled at Kiowa,
Tnd. T., this the 8th day of October, 181)0, upon the testimony of Henry Perkins, Mrs.
Levina Franklin, they being enrolled Choctaw Indians by blood. The within-named par
ties not being present were passed for further enrollment.
A. E. FOLSOM,
Secretary of Census Committee.
They were afterwards actually placed upon the 1896 census roll, January
6, 1897.
September 5, 1896, after making the foregoing application, and before such
action thereon, William C. Thompson applied (case 38) to the Commission to
the Five Civilized Tribes, which at a date not found in the record denied his
enrollment, and no appeal was taken therefrom. lie states that he received no
notice of such action. None is shown and the circumstances are persuasive that
none was received. Hearing of such action too late to take an appeal he wrote
to the attorneys for the nation and under date of " 5, 3, 1897," was by letter in
the record advised that " our records show you were admitted as a citizen of
the Choctaw Nation and that your case has not been appealed." This is cor
roborated by evidence tending further to show that he inquired of Judge Simon
E. Lewis, a member of the Choctaw census revisory board, who, by direction of
the tribal authorities, aided the nation's attorneys in determining what cases
of admission by the Commission should be appealed, and that Lewis checked off
and " O. K.'ed " the Thompson case as one wherein the Commission allowed
enrollment, and the nation would not appeal. There was evident misappre
hension, and those representing the nation, as well as the applicant, supposed
that the Commission allowed his enrollment and conceded his right, accepting
that supposed decision as proper.
The facts respecting William C. Thompson's Choctaw descent and basis of his
claim do not seem to be controverted, and are that Margaret McCoy, a half-
breed Choctaw, married a white man, Thompson, of whom was born William
Thompson. Jim Jones, a half-breed Choctaw, married and had a daughter. Ann,
who married James Mangum, of whom was born Elizabeth Mangum. William
Thompson, in Mississippi, married Elizabeth Mangum, and after birth of a son,
Arthur F., the family moved to the Choctaw Nation, Indian Territory, where
William C. Thompson was born, February 6, 1839. August 31, 1840, William
died, a recognized citizen of the Choctaw Nation. His wife died within a week
of the same date. The orphaned children were taken by a grandfather back to
Mississippi, where they lived until 1857, when William C., 18 years old, returned
to the nation and lived eight months with his grandmother, Margaret McCoy,
and uncle, Dickinson Frazier, governor of the Choctaw Nation, being fully recog
nized as their kinsman and a Choctaw by blood. He returned, then, to Missis
sippi, remained until the rebellion, went to Texas and lived there until 1887,
when he removed to the Choctaw Nation, occupied and improved Indian lands
without objection as an intruder, and has lived there ever since. He is not
identified as on any rolls until the census roll of 1896.
Thompson therefore was a Choctaw by blood, born to the allegiance of the
Choctaw Nation, was an actual resident of the nation for nine years prior to
1896, and was recognized by the duly constituted authorities of the Choctaw
Nation October 8, 1896, having all legal qualification to be so recognized, and
was actually entered on the 1896 census roll by the tribal authorities, author
ized "to enroll all recognized citizens of the Choctaw Nation by blood, inter
marriage, and adoption who are recognized as citizens of the nation under the
treaties, constitution, and laws of said nation."
June 30, 1900, the Commission held that " W. C. Thompson and his wife were
admitted to be enrolled by the revisory board of the Choctaw Nation upon the
6th day of January, 1897. This enrollment was without authority of law."
March 5, 1904, the Commission, considering the application of Thompson and
others descended from Margaret McCoy to be identified as" Mississippi Chocta'ws,
upon the whole record held :
These applicants were denied citizenship in the Choctaw Nation by this Commission
under the provisions of the act of Congress of June 10, 1896, and no appeal was taken
from such decision in the time prescribed by the provisions of said act.
From the testimony of the principal applicant it appears that the following applicants :
William C. Thompson, sr., Sarah S. Thompson, Arthur M. Thompson, William C. Thomp
son, jr., Mary M. Thompson (now McNeese), and Harrold McNeese, on August 1, 1896,
made application to the Choctaw council for citizenship in the Choctaw Nation, and
that said application was referred to a board of commissioners appointed under an act
of the Choctaw council approved September 18, 1896, and by said commission ad
mitted to citizenship in said nation. The original application, which is filed herewith
and made a part of this record, fails to show that the same was ever filed with the
Choctaw council or by them referred to said commission.
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 133
The powers of said commission are set forth in section 1 of the act of the Choctavv
council approved September 18, 1896, entitled "An act authorizing the appointment of
commissioners, fixing their pay, and for other purposes," and provides :
"Be it enacted by the general council of tlie Choctaic Nation assembled, That a commis
sion of three citizens by blood of the Choctaw Nation in each county and three for the
Chickasaw Nation shall be appointed by the principal chief immediately after the
passage of this act; the commission so appointed under this act shall proceed at once
to enroll all recognized citizens of the Choctaw Nation by blood, intermarriage, and
adoption who are recognized as citizens of the Choctaw Nation under the treaties, con
stitution, and laws of said nation, and said commissioners shall make a separate roll
of all intermarried citizens and of all freedmen appearing for enrollment; each member
of said commission shall be able to read and write and shall, before he enters upon the
duties of his office, take the oath of office prescribed in the constitution of the Choctaw
Nation and in the same manner as judges of elections."
Under the foregoing act this commission, appointed by the Choctaw council, had no
authority to pass upon original applications for citizenship, being only empowered to
" enroll all recognized citizens of the Choctaw Nation by blood, intermarriage, and
adoption who are recognized as citizens of the Choctaw Nation under the treaties, con
stitution, and laws of said nation." The foregoing applicants, whose names appear in
said application, had never been recognized as citizens of the Choctaw Nation, and could
not therefore come within the purview of said act.
The names of William C. Thompson (and others) * * * having been placed
thereon by a so-called board of commissioners appointed under an act of the Choctaw
council approved October 30, 1896, at a time when said board had no legal existence,
having been created subsequent to September 10, 1896, the time when the jurisdiction
of the Choctaw Nation to entertain applications for citizenship in that tribe had expired,
as provided in the act of June 10, 1896 (29 Stat. L., 321).
The evidence herein shows conclusively that the aforesaid names were placed upon
the 1896 Choctaw census roll without authority of law, and should therefore be elimi
nated and stricken therefrom.
It is true that Thompson's original petition to the Choctaw legislature that
" the rights, privileges, and immunities of the Choctaw Nation be granted " his
family, " and they be enrolled with the legal citizenship of said nation," bears
thereon no filing mark of its receipt or reference by the legislature to the Com
mission. The fact, however, is that the legislature provided for a commission,
which was duly constituted, and authorized it to " enroll all recognized citizens
of the Choctaw Nation." In discharging such duty, the tribal committee
necessarily had to pass upon what constituted recognition as a citizen and who
were " recognized citizens." The act of June 10, 189(> (29 Stat. L., 321, 339), con
firmed the existing tribal rolls and authorized the Commission to the Five
Civilized Tribes to hear and determine the claims of others to be added thereto.
The power thus given to the Commission was not exclusive, but concurrent with
the power theretofore existing in the tribal authorities as autonomous com
munities, and the act provided that —
any person who shall claim to be entitled to be added to said rolls as a citizen of either
of said tribes and whose right thereto has either been denied or not acted upon, or any
citizen who may within three months from and after the passage of this act desire such
citizenship, may apply to the legally constituted court or committee designated by the
several tribes for such citizenship, and such court or committee shall determine such
application within thirty days from the date theieof.
This act clearly contemplated that application might be made to such Indian
committees, and whether Thompson's application was formally presented to the
Choctaw legislature and referred to such committee, or was in the first instance
presented to the Choctaw committee, seems to be immaterial, and, in either case,
was within the provisions of the act of Congress. Whether the requirements
that " the committee shall determine such application within thirty days from
the date thereof " was more than directory, imposing merely the duty of prompt
final action, is immaterial, as the committee was constituted under an act of
September 18, and its final action was October 8, 1890, necessarily within thirty
days after the matter was before it. That action was favorable to the applicant
and constituted full recognition of the applicant's citizenship. The act of
inscription of the rolls, January 1, 1897, was merely clerical and ministerial,
proper to be done at any time. The inscription upon the roll was not the final
action of the committee. That was complete when the merits of the application
and right of the applicant were found and declared October 8, 189C>. To all
legal intent the applicants were then enrolled.
The report of the Commission to the Five Civilized Tribes to the Secretary
of the Interior, January 24, 1903, in the case of Bettie Lewis, states that after
full investigation its conviction is —
that there had never, prior to * * * June 10, 1896, been any rolls of the Choctaw
and Chickasaw nations which had been ratified and confirmed by the legislative bodies of
those two nations or had received the approval of the chief executives —
and the only rolls that the Commission finds and avails itself of for ascertaining
tribal recognition of Choctaw citizens are the 1885 and 189G census and 1893
134 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
leased district rolls. It states that in the Choctaw Nation the loose practice has
prevailed of permitting officers having any duty connected with tribal rolls " to
withdraw them from the executive office ;;n;i retain them among their personal
effects." The census roll of 1896, on which Thompson is enrolled, is thus one of
the rolls used by the Commission as showing tribal recognition.
I am therefore of the opinion that the recognition of William C. Thompson
and those included in his application of August 1, 180(5, by the Choctaw com
mittee was within the powers of that body, and that their entry upon the 189G
census tribal roll, pursuant to such recognition, was not without authority of law
or by fraud; that the Commission to the Five Civilized Tribes was in 1896
without authority to deny his enrollment, and he was not barred by failure
to appeal from such decision made in excess of the powers of the Commission.
I am further of opinion that such right to be heard upon the merits of their
claim to Choctaw citizenship was saved, not merely to him, but to all the others
embraced in his application, and then so recognized, who were living in the
Territory, having the same descent.
Very respectfully, FRANK L. CAMPBELL,
Assistant Attorney-General.
Approved March 3, 1905.
E. A. HITCHCOCK,
Secretary.
OFFICE OF INDIAN AFFAIRS,
Washington, D. C., April 29, 190Jh
The honorable the SECRETARY OF THE INTERIOR.
SIR : There is inclosed herewith a report from the Commission dated April 13,
15)04, transmitting the record in the consolidated Mississippi Choctaw case of
William C. Thompson et al., applicants for identification. William C. Thomp
son applied for the identification of himself and Sarah Thompson, his wife,
and W. R. Thompson, his nephew, and Sarah T. Stubblefield, his grandniece.
Tersa Thompson Stubblefield applied for the identification of herself and her
five minor children — Dora, Rosa, Johnnie, Bertha, and Horace Stubblefield.
Minnie L. Wright applied for the identification of herself and her child, Grand-
ville Wright. Mary M. McNeese applied for the identification of herself and her
child. Herold Graham McNeese. Arthur M. Thompson applied for the identi
fication of himself, and William C. Thompson, jr., applied for the identification
of himself. Mattie Holloway applied for the identification of herself and her
minor children — Iva Bolensiefen, Jessie Holloway, Willie H., and Hallie Hazel
Holloway. Rufus O. Thompson applied for the identification of himself, and
Mary McNeese et al., Arthur M. Thompson et al., and William C. Thompson, jr.,
et al. claimed descent from Margaret or Marguret or Margerete or Margurett
Thompson, nee McCoy, and Jim or James or Sam or Saul Jones, and Thomas
Estes. Mary Jones (M. C. R., 563) claims descent from Izilla Mangrum. The
applicants jn M. C. R., 310, and the principal applicant and two minor appli
cants in 557, Winburn Jones et al. and Bryant Jones et al., claim descent from
Izilla Mangrum and Jim or James or Sam or Saul Jones or Ne-sho-ba. All
of the- applicants in M. C. R., 583, William Starr Jones et al., claim rights as
descendants or married to descendants of Jim or James or Sam or Saul Jones
or Ne-she-ba. Maggie Jones, M. C. R., 357, claims descent from B. F. Durant.
Mention is also made in the record of Elizabeth Mangrum and John Thurston
Thompson and Archibald Thompson. The record shows that in 189G the fol
lowing-named persons applied to the Commission for admission to citizenship in
the Choctaw Nation in accordance with the provisions of the act of June 10,
1890, to wit: William C. Thompson, Sarah S. Thompson, Arthur M. Thompson,
and William G. Thompson, in citizenship case No. 38; William G. McNeese and
Harold G. McNeese, in citizenship case No. 41 ; W. Starr Jones, Susan Jones,
Jettie May Jones, Ada Jones, and Florence Jones, in citizenship case No. 215 ;
Bryant M. Jones, as an intermarried citizen, case No. 216; Winburn Jones,
Peter N., Eslie, Tom B., Maud C., Jesse Hines, and Sallie Jones, case No. 1033.
The applicants were denied admission by the Commission and no appeal
was taken from that decision. From the testimony it appears that William C.
Thompson, Sarah S. Thompson, Arthur M. Thompson, William C. Thompson, jr.,
Mary M. Thompson (now McNeese), and Harold -McNeese, in August, 1896,
made application to the Choctaw council for citizenship in the nation. The
application was referred to the board of commissioners appointed by the pro
LAWS AFFECTING THE FIVE CIVILIZED TKIBES. 135
visions of an act of the council of September 18, 189G, and the persons last
named were admitted to citizenship by this board.
From the record in the case it does not appear that the original application
was filed with the Choctaw council or referred by the council to the commission
appointed by the act of September 18, 1896. Section 1 of the act of September
18, 1896, provides:
Be it enacted by the general council of the Choctaw Nation assembled, That a com
mission of three citizens by blood of the Choctaw Nation in each county, and three for
the Chickaaaw Nation, shall be appointed by the principal chief, immediately after the
passage of this act by the commission so appointed under this act shall proceed at once
to enroll all recognized citizens of the Choctaw Nation by blood, intermarriage, and
adoption who are recognized as citizens of the Choctaw Nation under the treaties,
constitution, and laws of said nation, and said commissioners shall make a separate roll
of all intermarried citizens and of all freedmen appearing for enrollment. Each member
of said commission shall be able to read and write, and shall before he enters upon the
duties of his office take the oath of office prescribed in the constitution of the Choctaw
Nation, and in the same manner as judges of elections.
It will be observed that this act did not empower the commission to pass upon
applications for admission to citizenship. The only power conferred upon the
committee was to " enroll all recognized citizens of the Choctaw Nation by
blood, intermarriage, and adoption, who are recognized as citizens of the Choc
taw Nation under the treaty, constitution, and laws of the said nation."
The commission say in their decision that —
The names of William C. Thompson (as Wm. C. Thompson), Sarah S. Thompson (as
Sarah Thompson), Sarah T. Stubblefield (as Sarah Stubblefleld), William 11. Thompson
(as William Thompson), Terry Thompson Stubblefield (as Terry Thompson), Mary M.
McNeese (as Mary McNeese), Harrold McNeese (as Harol McNeese), Arthur Thompson
(as Arthur M. Thompson), William C. Thompson, jr. (as Wm. Thompson, jr.), Mattie
Balloway (as Martha Holloway), Ivy Bolenseifen (as Ivy Halloway), Jessie Ilolloway
<as .lessee Halloway), Rufus O. Thompson (as Rufus O. Thompson), Martha Louisianna
Thompson (as Martha Thompson), Winburn Jones (as Winburn Jones), Peter N. Jones
(as Peter Jones), Eslie Jones (as Elsie Jones), Thomas Jones (as Thomas Jones), Maude
C. Jones (as Maud Jones), Jesse H. Jones (as Jesse Jones), Sallie Jones (as Sallie
Jones), Mary E. O'Quin (as Elza Oquinn), James Walter O'Quin (as Jas. W. Oquinn),
Dora E. O'Quin (as Dosia E. Oquinn), and Ora May O'Quin (as Osia M. Oquinn), are
found upon the Chostaw census roll of 1806, at Nos. 12521, 15121, 11815, 12531,
12524, !>r>34, 9535, 12522, H'52:], 0179, 61 80, 6181, 12542, 12543, 7372, 7373, 7374, 7375,
7376, 7377, 7378, 1028, 10030, 10031, and 10032, respectively —
and that they were placed thereon by a board of commissioners appointed
under an act of the Choctaw council, approved October 30, 1896. Under the
law at the time this board did not have jurisdiction, as the time limit within
which applications for admission to citizenship could have been made expired
September 10, 1896. It is believed therefore that the names above quoted were
on the 1896 census roll without authority of law ; that they should be stricken
therefrom, and that they are not by reason of their names being on said roll
entitled to enrollment as Choctaw citizens. They, however, also claim rights
to enrollment by virtue of the decision of the United States court for the
southern district of the Indian Territory in the cases of Walter W. Jones v. The
Choctaw Nation, and A. II. Jones et al. v. The Choctaw Nation.
From the record in this case it does not appear that these applicants were
parties to either of said cases, and they are not entitled to the benefits and
rights that may accrue to the parties thereto, even if the citizenship court
should hereafter declare the parties in the Walter W. Jones and A. H. Jones et
al. cases entitled to enrollment. The commission invites attention to the name
James Jones, 'which appears on pages 118 and 138; the name Samuel Jones,
jr., page 68, and Samuel Jones, sr., pages 76 and 125, volume 7, American State
Papers, Public Lands.
The records of this Office, book 95, page 285, show that James Jones was
awarded land under the nineteenth article of the treaty of 1830. He was given
the NE. |, the SE. i, and the SW. i of sec. 5, T. 12, R. 10 E., and it is shown he
" was a half-breed." The same record, page 185, shows that Samuel Jones was
also given the following-described land under article 19 of the treaty of 1830,
to wit, the SE. i, the SW. i, and the NW. ± of fractional sec. 19, T. 20, R. 1 W.
Other records show that the above location was subsequently modified, and that
Samuel Jones was finally awarded the S. £ and NE. fractional quarter and the
NE. £ and the NW. i of sec. 19, T. 20, R. 1 W.
The records of the Office do not show that Samuel Jones, jr., was awarded
any land under the fourteenth article or any other article of the treaty of 1830,
and it does not appear, from careful examination of said records, that any per
son by the name of Margaret or Marguret or Margerete or Margurett Thompson,
nee McCoy, or Annie Strong, nee Thompson, or Jiin or James or Sana or Saul
136 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
Jones or Ne-sho-ba, or Thomas S. Estes, or Izilla Mangrum, or Elizabeth Man-
gruin, or 15. F. Durant, or John Thurston Thompson, or Archibald Thompson,
complied or attempted to comply with the provisions of the fourteenth article of
the treaty of 1830. There was a Jemmy Jones, the child of Puthkintubbee, who
was awarded scrip in lieu of land, but from the record it does not seem that
these applicants attempt to claim descent form him. It is evident, therefore,
that the decision of the Commission adverse to the identification of the appli
cants herein is correct, and that it should be approved. Its approval is recom
mended.
A copy of the record of the Office relative to Samuel Jones and a copy of that
relating to Jim Jones is inclosed herewith.
Very respectfully, A. C. TONNER,
Acting Commissioner.
OFFICE OF THE SECRETARY,
Washington, D. C., March 16, 1906.
The COMMISSIONER TO THE FIVE CIVILIZED TRIBES,
Muscogcc, Ind. T.
SIR: On March 24, 1905, the Commission to the Five Civilized Tribes was
directed to enroll the applicants in the Choctaw case entitled William C. Thomp
son et al. (M. C. R., 341) as citizens of the Choctaw Nation. The applications
embraced under the above title include those of William C. Thompson, Sarah
S. Thompson, William R. Thompson, and Sarah T. Stubblefield.
Said decision was based upon the approved opinion of the Assistant Attorney-
General for the Department, of March 3, 1905. Subsequently a motion for
reconsideration of said decision was filed by the attorneys for the Choctaw and
Chickasaw nations. This motion has been considered, and in an opinion ren
dered by the Assistant Attorney-General March 10, 1906, approved the same
day, he adhered to his former opinion.
Accordingly the Department finds that the persons named above are entitled
to enrollment as citizens of the Choctaw Nation, and you are directed to enroll
them as such. The names of all of the applicants should be placed upon the
rolls of Choctaws by blood, except that of Sarah S. Thompson, who should be
enrolled as a citizen by intermarriage.
The other applicants included in the consolidated Choctaw case entitled Wil
liam C. Thompson et al. will be the subject of subsequent letters..
A copy of said opinion of March 10, 190G, is inclosed herewith.
Respectfully,
THOS. RYAN,
First Assistant Secretary.
OFFICE OF THE ASSISTANT ATTORNEY-GENERAL,
Washington, March 10, 1906.
The SECRETARY OF THE INTERIOR.
SIR : Counsel for the Choctaw Nation filed a motion for reconsideration of my
opinion of March 3, 1905, in case of William C. Thompson and others (I. T. D.
H622, 4074-1905; 187-1905, etc.), applicants for enrollment as citizens of the
Choctaw Nation. The ground of the motion is general, that " the findings of
fact and conclusions of law therein made and reached are erroneous and should
not stand." Counsel have been orally heard, and the. general assignment of
error is narrowed to two specific contentions.
(1) That no rolls of the Choctaw Nation existed June 10, 1896, to be con
firmed by the act of that date (29 Stat, 321, 329), wherefore no member of the
nation was outside the jurisdiction of the Commission in 1896, and the denial
of his enrollment by the Commission in that year without appeal excludes his
case from consideration by the present Commission under more recent acts
continuing its powers.
(2) That all power of the Indian authorities was in citizenship matters, by
force of the act of June 10, 1896, terminated October 10, 1896, and that Thomp
son was not recognized as a citizen by the Choctaw authorities until in Jan
uary, 1897, and such act was without authority of law.
The first contention, while in my view founded on an erroneous premise, is
immaterial. Although immaterial to the present case, I deem it necessary to
notice the erroneous assumption, lest silence might appear to be an assent to it.
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 137
The erroneous premise is that no rolls existed which were confirmed by the act
of June 10, 1890. This is based on the supposed necessity for legislative con
firmation by the action of the legislative councils of both the Choctaw and
Chickasaw nations. This is a pure afterthought, begotten of expediency, when
the communal property was about to be divided to the tribal members, with
view to expatriating many members for benefit of others no more meritorious.
The Choctaw and Chickasaw nations were autonomous, and each could deter
mine its own membership, notwithstanding the affiliation or allied relation of
those tribes. This was recognized by the treaty of 1866. No convention or
treaty between the tribes deprived them of complete autonomy and exclusive
regulation of their own citizenship and other internal affairs. Such was the
practice of each nation for more than forty years before this novelty was
invented and until their power was terminated by Congress. (Opinion, Richard
B. Coleman, I. T. IX, 12436-1904, March 17, 1905.) There were Choctaw rolls
confirmed by the act of 1896 — for instance, the census roll of 1885, and probably
others. In not defining what tribaJ rolls were confirmed, the act of June 10,
.1896, confirmed all rolls compiled by tribal authority, and the act of June 7,
1897 (30 Stat. L., 8.3-84), can not operate retrospectively to undo anything done
before its passage, or to vest in the Commission a jurisdiction to do before that
time what at the time of its act it had no power to do. No intent to cure past
acts done without authority is expressed in the act of 1897, and none can arise
by more implication. The act of 1S97 mus't operate only prospectively from its
date. The question is, however, not material to the present case, as Thompson
is not identified as borne on any rolls existing June 10, 1896.
The second contention refers to the act of June 10, 1896 (29 Stat. L., 321, 339),
and argues that —
It thus appears that application must have been made to the " legally constituted court
or committee " within three months after June 10, 1896. In order to comply the allega
tion is made that the application was made to the Choctaw council on August 1, 1896,
and this fact is found by the Assistant Attorney-General. The allegation is absolutely
false.
The alleged falsity of the claim and of the finding in the former opinion is
based on the fact that Thompson's petition, the original being in the record,
while dated August 1, 1896, was addressed —
To the honorable l>o<1y of the senate and the house of representatives of the Choctaw Nation
in general council assembled at its regular session October, 1896:
It therefore appears that there was no intention in either the minds of the applicants or
their attorney that it was to be filed at any time or place except the regular session. * * *
The constitution of the Choctaw Nation shows that the regular session assembles on the
first Monday in October of each year.
The supreme legislative body of the Choctaw Nation is a continuing body.
Its members hold office for two years in the senate and one year in the house,
;ind in case of vacancies temporary appointments may be made (Art. Ill, sees.
3, 4, 5). The beginning of the official term is not expressly fixed, but an amend
ment, not dated, fixes the first Monday of October annually for convocation of
regular sessions. As the general council is a continuing body, applications
might properly be made to it when not in session. In fact, a special session
was convened, and September 18, 1896, an act was passed, set out in the rec
ord and former opinion, for appointment of committees of three persons in
each county " to enroll all recognized citizens of the Choctaw Nation by blood."
As the application was addressed to a proper body at a time when it had
authority to receive it, and that body recognized and acted upon it, the presump
tion must be that it was presented in proper time. Nofire v. United States (164
U. S., 657, 660).
The record shows that such Commission acted. Its indorsement on the back
of the original application shows that the applicant's rights were recognized
"this 8th day of October. * * * The within parties not being present were
passed for future enrollment." This indorsement was signed by A. E. Folsom,
secretary of the committee, who was before the Commission to the Five Civilized
Tribes, and testified June 19, 1900:
Q. What was the action of your Commission as to finding whether or not the Thomp
son family were entitled to enrollment?
A. We enrolled the family.
Also Davis A. Homer, who had acted for Thompson in drafting his petition
and was secretary of the census revisory board, and Simon E. Lewis, one of the
last-named board, testified that the revisory board inscribed the W. C. Thomp
son family on the revised census roll January 6, 1897, so that the right of this
138 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
family was not only recognized October 8, 189G, but was scrutinized and again
approved by the revisory board January G, 1897.
There is thus in the evidence the original contemporary writing, showing that
Thompson within the time limited by the act of June 10, 1896, applied to the
tribal authorities for recognition of his right, and the testimony of two wit
nesses besides Thompson to the fact that he did make such application, and that
the tribal authority acted thereon before October 10, 1896, and the evidence fur
ther of three witnesses that the revisory board afterwards scrutinized the
propriety of such action, and pursuant to it, January 6, 1897, made manual
inscription of their names on the 1896 census revised roll.
Whether the Indian authorities lost power October 10, 1896, to act upon such
application is not in this case material, but the provision requiring action within
thirty days appears to be a directory one to insure prompt action and not a
limitation upon the power.
Thompson had Choctaw blood, was a descendant of Margaret McCoy, and kins
man of Governor Dickenson Frazier, and was born in the nation to its allegiance.
The Choctaw constitution contains no provision expatriating an absentee who
was born to allegiance of the nation, nor is there such a provision in the stat
utes of the nation until the act of October 16, 1895 (Op., Long, Feb. 19, 1906).
After an absence in Texas Thompson returned to the nation in 1887 and
permanently remained. It was clearly his right and the duty of the Choctaw
authorities that he be recognized and enrolled, and their act in so doing was not
a fraud nor without authority of law.
Where two tribunals have original and concurrent jurisdiction to consider a
matter it is concluded by that tribunal which first determines it. When the
Choctaw authorities acted October 8, 1896, the Commission to the Five Civilized
Tribes, under the act of 1896, had no further authority than the ministerial one
of inscribing the family upon their roll, for they had no authority to purge the
recognized citizenship of the tribes, and no legal ground of fact for such action
existed had there been such authority. The Commission not having jurisdiction
to exclude him at the time it assumed to do so, his failure to appeal from that
void action does not prejudice his right. I therefore adhere to my former opin
ion herein that neither fraud nor want of authority for the applicant's enroll
ment is shown and that they are entitled to be enrolled.
Very respectfully,
FRANK L. CAMPBELL,
Assistant Attorney-General
Approved March 10, 1906.
E. A. HITCHCOCK,
Secretary.
OFFICE OF THE SECRETARY,
Washington, D. C., February 23, 1906.
COMMISSIONER TO THE FIVE CIVILIZED TRICES,
Mnscogee, Jnd. T.
SIR : On January 19, 1905, the Commission to the Five Civilized Tribes trans
mitted the record in the matter of the application for the enrollment of Lula F.
Long, James S. Long, Joseph Long, and Forbis Long as citizens by blood of the
Choctaw Nation, with its decision of January 19, 1905. dismissing the applica
tion of Lula F. Long and denying the application of James S., Joseph, and
Forbis Long.
The papers in the matter were forwarded by the Indian Office March 6, 1905,
with the recommendation that the decision of the Commission, adverse to the
applicants, be approved.
Following the approved opinion of the Assistant Attorney-General of February
19, 1906, the decision of the Commission to the Five Civilized Tribes is hereby
reversed as to all of the applicants except Lula F. Long. Inasmuch as she died
prior to September 25, 1902, she is, according to the act of July 1, 1902 (.">2 Stat,
641), ineligible to enrollment. Accordingly the action of the Commission dis
missing her application is hereby approved.
You are directed to place the names of James S. Long, Joseph Long, and
Forbis Long upon the final rolls of the citizens by blood of the Choctaw Nation.
Copies of the Indian Office letter and of said opinion are inclosed herewith.
Respectfully,
THOS. RYAN,
First Assistant Secretary.
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 139
OFFICE OF THE ASSISTANT ATTORNEY-GENERAL,
Washington, D. C., February 19, 1906.
The SECRETARY OF THE INTERIOR.
SIR : I am in receipt, by reference of May 10, 1905, with request for opinion
thereon, of the record in the case of James S., Joseph, Forbis, and Lula P.
Long for enrollment as citizens by blood of the Choctaw Nation.
The case involves the right of Mississippi Choctaws (other than those claiming
under Article XIV of the treaty of September 27, 1830, 7 Stat, 333, 335) and
their descendants to reunite with the nation up to the inhibition by the act of
June 28, 1898 (30 Stat, 495, 503), when it was provided that—
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 he so construed as to militate against any rights or privileges
which the Mississippi Choctaws may have under the laws of or the treaties with the
United States.
The applicants are children of Jacob Long, son of Mrs. Sam Long, who was
nearly a full-blood Choctaw, sister of Greenwood Le Flore, the old Choctaw
chief. They are thus about one-quarter Choctaw blood. They were born in
Mississippi. James S., aged 26 years, went to the Choctaw Nation in 1883 and
stayed two years ; returned to Mississippi and stayed a year and a half ; retui'ned
to the nation in 1888 with his brother Sam, now deceased, and stayed a year or
two ; returned to Mississippi for " six months or a year," and in 1894, with the
other applicants, returned to the Choctaw Nation, where they have ever since
resided. Sam Long was on the leased district payment roll of 1893. The appli
cants applied to the council for admission to citizenship in August, 1895, and
understood that his right to citizenship was recognized, as James was called
back to give the names of his family. The application was not acted on by the
council otherwise than to refer it and all similar matters to a committee con
stituted by an act of September 18, 1896. Their names were put on the 1896
census roll in January, 1897, by order of Green McCurtain, governor of the
Choctaw Nation. All of applicants' ancestors continued to live in Mississippi
to their death, and no evidence tends to show that they claimed benefits of
Article XIV of the treaty of September 27, 1830 (7 Stat., 333, 335). There is
thus presented the rights of decendants in the third generation seeking restora
tion to political relation with the tribe from which their ancestors became by
volunta-ry act or by operation of law dissevered.
It is a matter of history that the migration of the Choctaw people from their
ancient to their present western seats was not at one time by all the tribe, nor
yet at one time by those elements of it whose decendants now constitute the
Choctaw Nation. Only about one-half of the tribe left their old seats in the first
general movement in 1831 and 1832. The United States transported various
bands, and some parties migrated at their own expense. The records of the
Indian Office show that in 1845 and 1856 the Choctaw Nation as now constituted
presented claims against the United States arising out of these migrations.
That the present Choctaw Nation did not, at the time of the migration, nor for
a long time thereafter, regard those who failed to emigrate as unentitled to
possess and share the tribal lands and property equally with themselves, when
ever they should immigrate, is evident from the legislation of the nation. As
early as October 9, 1837 (Choctaw laws, 1869, p. 73), the council prohibited
settlement or purchase of improvements on the tribal lands from its citizens
by any Indian " not a descendant of the Choctaws." Descendants from Choctaws
were not regarded as intruders, but as having right, without special act of
council, to appropriate tribal lands and to purchase improvements thereon. Octo
ber 14, 1847, the "late and new emigrants" (ib., p. 96) wrere declared to have
equal rights with the old settlers in the schools of the nation. This was not a
grant of concession, but a mere declaration of right ; not of right as residents
or as Indians, but as Choctaws, for by the resolution of October 11, 1858 (ib.,
177), other Indians (Creeks) were regarded as intruders and were asked to be
speedily removed.
The Choctaw Nation and government as now existing was organized under a
constitution drafted by a convention assembled January 11, 1860, pursuant to
the act of October 24, 1859, by the Choctaw council. The preamble to that
instrument declares that —
We, the representatives of the people inhabiting the Choctaw Nation, contained within
the following limits, to wit, * * * do ordain and establish the following constitution
and form of government, and do mutually agree with each other to form ourselves into a
free and independent nation, not inconsistent with the Constitution, treaties, and laws of
the United States, by the name of the Choctaw Nation.
1 40 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
The first section of the bill of rights declared that " all free men, when they
form a social compact, are equal in rights," and all free male citizens of 18
years and upward, who had been citizens six months and resident in their
election district at least one month, were declared qualified electors by section 7,
Article VII. There was nothing in this instrument defining citizenship in the
Choctaw Nation, how it might be acquired or lost, or limiting the operation of
it to such residents of its territory as were then members of the Choctaw tribe.
If it was so intended, and is to be so limited by construction, it must be so
done from consideration of matters outside the instrument itself. Upon its
face it embraced all " inhabiting " the territory within its defined boundaries,
and by the same word excluded all persons, Choctaw or not, not " inhabiting "
those defined limits.
The Choctaw Nation, however, continued to solicit a reintegration of the
absentees of the tribe into the nation. When allotment of the Choctaw-Chicka-
saw lands was contemplated by the treaty of 18G<> (14 Stat, 7G9), Article XIII
provided for newspaper publications of notice in six States of the Union —
to the end that such Choctaws and Chickasaws as yet remain outside of the Choctaw and
Chickasaw nations may be informed and have opportunity to exercise the rights hereby
given to resident Choctaws and Chickasaws.
This was conditioned upon the absentee taking up actual residence in the
nation within five years after selection of his allotment. By Article XV " every
Choctaw and Chickasaw (not citizens or residents merely) was given a ninety
days' preference right to select a quarter section of land.
No restriction or condition was imposed upon anyone claiming Choctaw
descent establishing residence in the nation and thereby acquiring full rights
of citizenship. October 1(5, 187(5 (Laws, 1887, p. 172), a tribunal for citizenship
was established, and the act provided that —
Any person who is not now recognized as a citizen of this nation, or of Choctaw
descent, and claiming to be a citizen, or of Choctaw descent, shall petition to the general
council, during the regular session thereof, for the rights and privileges of citizenship of
the Choctaw Nation. Such petitioner shall prove his or her blood, or other means by
which they claim citizenship, by not less than two good, respectable Choctaw, disinter
ested persons, before a proper committee, or the chairman thereof; and the chairman or
secretary of the committee shall have power to administer any and all oaths that may
be necessary in conducting the investigation. The committee aforesaid to be appointed
by the general council and to report to the body, by act or resolution or otherwise, in
reference to the petition or petitions of the person or persons claiming to be citizens, or
of Choctaw blood or descent ; and in the event of the adoption of such report of the
committee, then such person or persons shall thereafter be deemed and considered to be
bona fide citizens of the Choctaw Nation.
The peculiar wording, " or of Choctaw descent," itself implies that one of
acknowledged Choctaw descent became a Choctaw citizen by mere settlement
in the nation. The act of October 2, 1882 (ib., 174), gave an appeal in such
cases from adverse action of the council to the United States Indian agent.
Until after this time the right to become a Choctaw citizen seems to have been
fully and unqualifiedly conceded to all persons of Choctaw descent by mere
settlement and residence in the nation, the only procedure required being for
record proof of the right, which arose as of course upon proof of the facts of
descent and residence.
An act, apparently of November, 188C (Laws, 1894, p. 2f>C»), imposed a re
striction of one-eighth Choctaw blood as necessary to acquiring citizenship in
the nation. Section 4 significantly provided " that this act shall not be con
strued to affect persons within the limits of the Choctaw Nation now enjoying
the rights of citizenship," thus showing that persons of Choctaw descent entitled
to be recognized as citizens, but not yet recognized formally by the council or
admitted to the rolls, were residing in the nation, "enjoying" and entitled to
enjoy "the rights of citizenship." The act of October 30, 1888 (ib., 227),
constituted a tribunal for citizenship, by a committee of the general council,
and still recognized that satisfactory proof of Choctaw descent and residence
in the nation entitled an applicant to full recognition as a Choctaw citizen.
The second section of this act provided :
It is hereby made the duty of the sheriff of each county in this nation to ascertain the
number and name of persons, or parties in their respective counties, who claim Choctaw
rights, by blood or otherwise, and who have never established the same in accordance
with the laws of this nation, and report the same to the principal chief immediately.
Every such person living in this nation and claiming to l,e a citizen by blood or other
wise, and who shall fail to comply with the provisions of this act, after having been duly
notified thereof by the sheriff, or other authorized person, shall be deemed and considered
an intruder, and shall be removed beyond the limits of the nation forthwith by the
principal chief.
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 141
An act of the same day (ib.. 288) made the action of the council upon applica
tion for citizenship final. This act, however, did not deny the right of an
absentee Choctaw to acquire citizenship by taking up residence in the nation,
but made the council the final tribunal upon the sufficiency of proof.
As late as December 24, 1889, the Choctaw general council niemoralized Con
gress by a resolution, that —
Whereas there are large numbers of Choctaws yet in the States of Mississippi and
Louisiana who are entitled to all the rights and 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 : Therefore,
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.
This policy was maintained. By acts of April 8, April 9, and October 27,
1891, Mrs. Anna Boyd and others, Cornelius Hickman and others, and Henry
Lewis, Mississippi Choctaws, late arrivals, were simply " recognized " by resolu
tion of the council as citizens. (Laws, 1896, pp. 315, 320, 329.) This form
" declared " or " recognized," rather than " admitted," was the usual one and
was used in the acts declaring Mrs. Mayo and family, Joseph R. Pluniiner,
Caroline Hazel and others, and Lucy Dodson and others, entitled to citizenship.
(Laws 1888, pp. 14, 35, 45, 54.) It was always regarded as a matter of right of
such persons, not of grace or grant in the nature of adoption, admission, or
naturalization of an alien. This policy seems not to have been abandoned until
October 16, 1895, when the council adopted the resolution (Laws 1896, p. 4)
that—
Be it resolved by the general council of the Choctaw Nation assembled, That all parties
who claim citizenship to the Choctaw Nation, and intend proving the same, are hereby
notified that they must file their petitions as the law directs on or before November 15.
181)r>, as after said date no petitions will be entertained by the Choctaw Nation, and an
parties who have their petitions filed are hereby notified that they must come forward
and prosecute the same at once.
September 18, 1896 (ib., p. 43), an act was passed by the Choctaw council for
appointment by the principal chief of three citizens by blood as a commission to
proceed within ten days after its passage " to enroll all recognized citizens of
the Choctaw Nation," and section 3 provided :
Be it further enacted, That the rolls when completed by s?ud commissioners shall be
certified to by said commissioners and delivered to the principal chief of the Choctaw
Nation on or before the twentieth day of October, 1896, to be revised and approved by the
next general council of the Choctaw Nation.
Such a roll was made and prepared by the Commission and is known as the
389(5 census roll. There was another roll of 1890, known as the "Complete"
or " Revised census roll," of which the principal chief, Choctaw Nation, August
17, 1897, wrote the Commission that " the revised roll which I recently furnished
your Commission is the only roll made by this nation that contains the names of
intermarried citizens." It was made under resolution of the general council,
October 30, 189G, which (Laws 1896, p. 73) constituted a commission of five
persons to prepare " a complete roll " of the nation. It was furnished sundry
rolls, and among others the roll made out by the commissioners under the act
of September 18, 189(5, from which they were authorized " to expurge the names
of all persons whom they shall adjudge not to be citizens." They were di
rected to enroll nine general classes of persons, which, so far as here material,
were " Choctaws by blood born and raised in the Choctaw Nation. All Choc
taws by blood who have been admitted to citizenship by the general council and
now residents of the nation." They were " especially prohibited from enrolling "
eight classes of persons, the seventh, and only one here material, being " all
persons who have applied for citizenship and have not been accepted by the
general council." The act provided that —
All persons coming under any of the prohibitions are hereby declared noncitizens and
not entitled to the rights or privileges of citizens of the Choctaw Nation.
This roll, when completed, signed by the chief commissioners, and approved
by the principal chief, was to be the legal and authorized roll of citizens of the
nation. In his letter of July 17, 1897, to the Commission, the principal chief
stated that he had refused to approve the last roll made under the act of
October 30, 1896, because he was satisfied that there are some names thereon
" that have been registered through fraud or misrepresentation."
Upon which of the two rolls of 1896 applicants' names appear is not clearly
shown by the Commission, but the testimony of Simon E. Lewis, " a member of
142 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
the Choctaw commission," taken before the Dawes Commission December 4,
1900, is that he put the applicants on the roll ; that —
Governor McCurtain ordered me to put them on there, and that is how they got on
there, under orders from the governor in January, 1897, in revising the roll.
I therefore infer that by " the 1896 Choctaw census roll," mentioned in its
decision, the Dawes Commission intended to indicate the roll prepared under
the act of October 30, 1896, which the governor refused to approve, and not that
known as the census roll of 1896, prepared under the act of September 18.
While the governor did not approve this complete or revised roll, his dissent to,
or doubt of, its accuracy had no reference to the names he directed to be
thereon inscribed.
The view taken by the United States courts for Indian Territory, acting on
cases appealed from decisions of the Dawes Commission in citizenship cases
under the act of June 10, 1896 (29 Stat, 321, 339), was that (1) Mississippi (or
absentee) Choctaws whose ancestors or themselves had never removed to the
nation were not entitled to be enrolled; but (2) that one who had theretofore
actually removed to the nation was entitled to be enrolled as a citizen, with
all the rights, except that those who had taken benefit of the fourteenth article of
the treaty of September 27, 1830 (7 Stat., 333, 335), were excluded from sharing
in annuities. Jack Amos et al. (Ann. Rep. Com. Indian Affairs, 1898, p. 454)) ;
E. J. Home (ib., p. 465) ; general summary (ib., p. 473). The court in Jack
Amos, supra, expressed the opinion (ib., p. 114) that —
As an evidence that the Choctaw people themselves took this view of the question,
attention is called to the fact that their council passed many acts and resolutions in
viting these absent Choctaws to move into their country, and on one occasion appro
priated a considerable sum of money ; and until the past two or three years have always
promptly placed those who did return on the rolls of citizenship, but never enrolled an
absent Choctaw as a citizen * * * (p. 116). The reason for this conclusion is to
my mind morally certain when it is remembered that ever since the treaty of 1SHO,
now for a period of nearly sixty-seven years, with the exception of the past two or
three years, the Choctaw Nation, by its legislative enactments and by its acts so long
continued that by custom they have become crystallized into law, have universally ad
mitted all who should remove and rehabilitate 'them in all the rights and privileges of
citizenship enjoyed by themselves.
On the other hand, in the case of Mrs. A. O. Mallory and others, November 28,
1904, wherein a Choctaw, born in 1843 in Mississippi, living there till 1894,
removed to the nation and had thereafter resided therein, the Choctaw-Chicka-
saw citizenship court held that the treaty of 1830 imposed an obligation to
remove from the State upon all who did not claim benefit of the fourteenth
article, and that such removal must have been " within a reasonable time."
What was a reasonable time was not defined, but it was held that removal in
1894 was not within a reasonable time, and enrollment was denied. Judicial
constructions are thus at variance. Of the two, the first appears the better
reason and supported by the historic facts.
The only limitation imposed by Congress and the laws of the United States is
the provision of the act of June 28, 1898 (30 Stat, 495, 503), that "No person
shall be enrolled who has not heretofore removed to and in good faith settled
in the nation in which he claims citizenship." So far as a bar is raised by the
laws of the United States, it is sufficient if a claimant to citizenship in the Five
Civilized Tribes removed to and permanently settled in the Indian tribe wherein
he claims to be enrolled prior to June 28, 1898.
Subject to the power of Congress, the Indian nations are self-governing com
munities, entitled to control and manage their own internal affairs, such as their
citizenship, rules of descent, revenue, and criminal procedure. Roff v. Burney
(168 U. S., 218, 222) ; Citizenship cases, United States courts, Indian Territory
(Annual Report Commissioner of Indian Affairs, 1898, pp. 473, 499. 525) ;
Jones v. Mehan (175 U. S., 1) ; Buster v. Wright, Indian inspector; Sanborn,
J., eighth circuit, Mar. 7, 1895; Talton v. Mayes (163 U. S., 376, 385) ; United
States v. Kagama (118 U. S., 375, 381). Except as above limited, it is wholly
a matter of Choctaw law when a Choctaw by blood became separated from the
nation and lost right to reunite himself to it. Congress so directed the Com
mission, and by the act of June 10, 1896 (29 Stat, 321, 339), provides:
That in determining all such applications said Commission shall respect all laws of
the several nations or tribes not inconsistent with the laws of the United States, and all
treaties with either of said nations or tribes, and shall give due force and effect to the
rolls, usages, and customs of each of said nations or tribes.
As the Choctaw Nation up to November 15, 1895, was continually inviting the
absentees to reunite themselves with its body and accept its citizenship, and the
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 143
applicants accepted that invitation and permanently located in the nation, it was
their right under the act of 1896, supra, to he enrolled by the Commission to the
Five Civilized Tribes, or by " the legally constituted court or committee desig
nated " by the tribe, if they made application therefor within three months from
the passage of the act. By the usages and customs of the Choctaw Nation of
sixty years' standing, " crystallized into law," they were entitled to be " recog
nized " as its citizens. This enrollment was not an admission to citizenship,
but merely the recognition of citizenship existing.
Application was made to the Commission to the Five Civilized Tribes June 14,
1899. Upon the record the Commission found —
that none of the applicants herein has ever heen admitted to Choctaw citizenship by a
duly constituted court or committee of the Choctaw Nation or by the Commission to the
Five Civilized Tribes, or by a decree of the United States court in Indian Territory, under
the provisions of the act of Congress approved June 10, 1896 (20 Stat., 321), nor does
the name of any of the applicants appear upon any of the tribal rolls of the Choctaw
Nation, with the exception of the 1806 Choctaw census roll, which enrollment, it is
contended, was without authority of law.
It further appears from the record herein that in October, 1806, the applicants made
application to the general council of the Choctaw Nation for admission to citizenship
in said nation and that no action by the said general council was ever taken upon said
application.
It further appears from the record herein that in December (September or October),
1806, application was made to the so-called " revisory board," appointed under an act
of the general council of the Choctaw Nation approved October 30, 1806, for the enroll
ment of the applicants herein as citizens of the Choctaw Nation, and that the applicants,
James S. Long, Joseph Long, Forbis Long, and Lula F. Long (as Lula Long), were by
said revisory board enrolled upon the 1806 Choctaw census roll, Sans Bois County,
Nos. 7704, 7701, 7702, and 7703, respectively. Said revisory board had no legal
existence, having been created subsequent to September 10, 1806, the time when the juris
diction of the Choctaw Nation to receive applications for enrollment as citizens of that
tribe expired, as provided by the act of Congress approved June 10. 1806 (20 Stat., 321),
and had no authority to receive or consider the application of these applicants for en
rollment as citizens of the Choctaw Nation or to enroll them upon the 1806 Choctaw
census roll.
Section 21 of the act of Congress approved June 28, 1898 (30 Stat., 495), pro
vides that —
" Said Commission is authorized and directed to make correct rolls of the citizens by
blood of all the other tribes, eliminating from the tribal rolls such names as may have
been placed thereon by fraud or without authority of law, enrolling such only as may have
lawful right thereto, and their descendants born since such rolls were made, with such
intermarried white persons as may be entitled to Choctaw and Chickasaw citizenship
under the treaties and the laws of said tribes."
It is therefore the opinion of this Commission that the names of the applicants,
James S. Long, Joseph Long, Forbis Long, and Lula F. Long (as Lula Long), were placed
upon the 1806 Choctaw census roll without authority of law and should be eliminated
and stricken therefrom.
I am of opinion that the Commission erred in its application of the law to the
facts. As above shown, until November 15, 1895, the usage and custom of the
Choctaw Nation for more than sixty years was to recognize absentee Choctaws
upon their removal to and permanent settlement in the nation. No admission
to citizenship was by the usage of that tribe necessary. When applicants re
moved to the nation in 1894 they thereby became citizens. The council could not.
by prohibiting its committee from enrolling a class of citizens for no cause
except its own nonaction, decitizenize them unheard. Were that its intent I
would have no hesitation in saying that such arbitrary action was beyond its
power and in clear violation of section 11 of the bill of rights of the Choctaw
constitution, as an attempt to outlaw or deprive a class of citizens of their lib
erties and privileges unheard.
Bilt a more appropriate and proper construction of the seventh prohibiting
clause in the act of October 30, 189G, above quoted, is that it was intended to
apply to cases of noncitizens who had applied for admission or adoption into the
nation and whose claims had been heard and found to be unfounded and whose
claims had been rejected. So construed, the prohibition was a proper exercise
of legislative power, but had no application to those who by tribal usage became
citizens by reuniting with the nation in 1894. In putting the omitted names of
such persons on the roll the revisory board and the governor in so advising were
acting properly and within their powers. I am therefore of opinion that appli
cants were not enrolled without authority of law, and certainly not by fraud,
and the Commission erred in denying their enrollment.
The letter of reference also states that heretofore —
The Department has proceeded upon the theory that the Commission was granted
authority sufficient to vest in it jurisdiction to determine, upon their merits, the citizen-
144 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
ship rights of all applicants whose names appear upon the tribal rolls, including the
Choctaw census roll of 1896. * * * Your opinion is accordingly requested as to
whether the course pursued by the Department in such cases, where no fraud is shown,
has been taken in accordance with law.
I am of opinion that such is a proper construction of the act which makes the
rolls the basis of the Commission's jurisdiction and enrollment without author
ity of law or by fraud the only ground for exclusion of one who is enrolled.
Very respectfully,
FRANK L. CAMPBELL,
Assistant Attorney-General.
Approved February 19, 1906.
E. A. HITCHCOCK,
Secretary.
OFFICE OF INDIAN AFFAIRS,
Washington, D. C., March 6, 1905.
The honorable the SECRETARY OF THE INTERIOR.
SIR : I inclose a report from the Commission to the Five Civilized Tribes,
dated January 19, 1905, transmitting the record of the application for enrollment
as citizens by blood of the Choctaw Nation by James S. Long, Joseph Long,
Forbis Long, and Lula F. Long.
January 19, 1905, the Commission decided adversely to all the applicants.
The record shows that none of the applicants has ever been enrolled or
admitted to citizenship by any legal tribal authority of the Choctaw Nation or
by any United States tribunal.
It further appears that in October, 1890, the applicants made application to the
general council of the Choctaw Nation for admission to citizenship and that no
action was ever taken upon said application.
It is further shown that in December, 1890, application was made to the
so-called revisory board of the Choctaw Nation for the enrollment of the appli
cants herein, and they were by said revisory board enrolled upon the 189(5
Choctaw census roll. It further appears that at the date of such enrollment the
said revisory board had no legal existence. It further appears that the
applicant, Lula F. Long, died prior to December 7, 1900.
In view of the record the approval of the Commission's decision adverse to the
applicants is recommended.
Very respectfully, C. F. LARRABEE,
Acting Cotnm issioi,icr.
OFFICE OF THE SECRETARY,
Washington, />. C., May 21, 1903.
The COMMISSION TO THE FIVE CIVILIZED TRIBES,
Muxcogec, In<l. T.
GENTLEMEN : I have considered the proceedings of your Commission upon the
application of Wiley Adams for enrollment as a citizen of the Choctaw Nation.
The facts as found by your Commission are that Adams appeared before the
Commission in the year 1899, under the act of June 10, 1890 (29 Stat., 821) ;
that he is a white man, and about 1877 married a Creek, the widow of a Chicka-
saw citizen, and was by special act of the Choctaw council, approved November
0, 1884, admitted to citizenship of the Choctaw Nation, and has ever since
been recognized as a citizen of that nation and permitted to vote at their
elections. His application was denied by the Commission and no appeal was
taken to the courts.
He was borne upon the Choctaw census roll of 1890 as an intermarried citizen.
The act of June 10, 1890 (29 Stat, 321, 339), provided:
* * * That in determining all such applications said Commission shall respect all
laws of the several nations or tribes, not inconsistent with the laws of the United States,
and all treaties with either of said nations or tribes, and shall give due force and effect
to the rolls, usages, and customs of each of said nations or tribes : And provided further,
That the rolls of citizenship of the several tribes as now existing are hereby confirmed,
and any person who shall claim to be entitled to be added to said rolls as a citizen of
either of said tribes and whose right thereto has either been denied or not acted upon, or
any citizen who may within three monfhs from and after the passage of this act desire
such citizenship, may apply to the leg-illy constituted court or committee designated by
the several tribes for such citizenship, and such court or committee shall determine such
application within thirty days from the date thereof.
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 145
Your Commission was of the opinion that —
Under this act the rolls of citizenship of the several tribes as then existing were
confirmed, and the Commission under said act had the power only to admit to citizen-
ship and to add 'to said rolls the names of those persons who applied to them for citizen
ship, and no authority existed giving the Commission at that time power to eliminate
-fiom the tribal rolls the name of anyone thereon.
*******
* * * His (the applicant's) name appears upon the Choctaw census roll of 1896,
page 380, No. 14255, which is the latest roll in the possession of this Commission. The
act of Congress of June 28, 1898 (30 Stat., 495), provides :
" Said Commission is authorized and directed to make correct rolls of the citizens by
blood of all the other tribes (except Cherokee), eliminating from the tribal rolls such
names as may have been placed thereon by fraud or without authority of law, enrolling
such only as may have lawful right thereto, and their descendants born since such rolls
were made, with such intermarried white persons as may be entitled to Choctaw and
Chickasaw citizenship under the treaties and the laws of said tribes."
Not until this act became a law did the Commission have any authority to deal with the
applicant's name, and under this act the only power the Commission has is to strike his
name from the rolls, provided it is made to appear that it was placed thereon by fraud
or without authority of law. No charge of fraud is suggested in the record, and it is
conceded that the national council of the Choctaw Nation in 1884 had the authority
to admit this applicant to citizenship in said nation.
Tt is therefore the opinion of the Commission that its action upon the petition of the
applicant for citizenship, under the act of Congress of June 10, 1890, was without author
ity of law, and of no force and effect upon the status of this applicant as a citizen of
tlie Choctaw Nation, and also that Wiley Adams is a citizen of the Choctaw Nation, and
also that Wiley Adams is a citizen of the Choctaw tribe of Indians in the Indian Ter
ritory, and that his application therefor should be granted, and it is so ordered.
A special act of the nation's council is no less a law of the tribe than is a
general one. It has been one of the well-known usages and customs of the
several Indian tribe* to adopt persons of other races. Naturalization by one
nation of persons of other races or nations is so general as to be almost a
universal practice. The act of June 10, 180(5, supra, conferred upon the Com
mission no power to strike from the rolls persons borne thereon by the act and
with the full consent of the tribe. The action of your Commission is therefore
approved.
Very respectfully, THOS. RYAN, Acting Secretary*.
OFFICE OF INDIAN AFFAIRS,
Washington, D. (7., May 11, 1903.
The honorable the SECRETARY OF THE INTERIOR.
SIR : This Office is in receipt of departmental letter of the 8th instant (I. T. D.
4268), calling attention to telegram of the Commission to the Five Civilized
Tribes of the 7th instant asking early action in the case of Wiley Adams for
enrollment as a citizen of the Choctaw Nation, as there are pending a number
of analogous cases requiring early action, and I now have the honor to transmit
the record in that case.
The record in this case shows that by an act of the citizenship committee of
the Choctaw Nation, which was approved November 6, 1884, by the principal
chief of the Choctaw Nation, Wiley Adams was duly admitted to citizenship
in the Choctaw Narion ; that subsequent to the passage of the act of Congress
approved June 10, 1890, Wiley Adams appeared before the Commission to the
Five Civilized -Tribes and applied for enrollment by the Commission as a citizen
of the Choctaw Nation at South Canadian, Ind. T., the examination being con
ducted by Commissioner McKemion, and as a result of that examination was
rejected by the Commission.
The Commission at this time was acting under the provisions of the act of
Congress approved June 10, 189(5 (29 Stat, 321), which provision, relative to
the enrollment of citizens in the Five Civilized Tribes, reads as follows:
That said Commission is further authorized and directed to proceed at once to hear
and determine the application of all persons who may apply to them for citizenship in
any of said nations, and after such hearing they shall determine the right of such appli
cant to be so admitted and enrolled : Provided, however, That such application shall be
made to such Commissioners within three months after the passage of this act. The sn'd
Commission shall decide all such applications within ninety days after the same shall be
made. That in determining all such applications said Commission shall respect all laws
of the several nations or tribes, not inconsistent with the laws of the United States,
and all treaties with either of said nations or tribes, and shall give due force and effect
to the rolls, usages, and customs of each of said nations or tribes : And provided further,
That the rolls of citizenship of the several tribes as now existing are hereby confirmed,
and any person who shall claim to be entitled to he added to said rolls as a citizen of
33753—00 M 10
146 LAWS AFFECTING THE FIVE CIVILIZED TKIBES.
either of said tribes, and whose right thereto has either been denied or not acted upon,
or any citizen who may within three months from and after the passage of this act
desire such citizenship may apply to the legally constituted court or committee desig
nated by the several tribes for such citizenship, and such court or committee shall deter
mine such application within thirty days from the date thereof.
On December 10, 1900, supplemental proceedings were had in the matter of
the application of Wiley Adams, the testimony of S. E. Lewis, a Choctaw
Indian by blood* having been taken, showing that Wiley Adams had been duly
admitted to citizenship by the citizenship committee of the Choctaw Nation, as
is also shown by copy of the general and special laws of the Choctaw Nation
passed at regular session of the general council convened at Tuskahoma October
5 and adjourned November 7, 1884.
In its statement of the case the Commission says : " It appears from the evi
dence that the applicant is a white man, and was married about the year 1877 to
a Creek woman, who was the widow of a Chickasaw citizen, but it does not appear
that he was married under the provisions of the Choctaw law ; nor does it appear
that he was married to a Choctaw by blood. * * * And the evidence shows
that this applicant has been recognized as a citizen of the Choctaw Nation, and
permitted to vote at their election ever since the said date," November G, 1884.
The Commission further states that the name of Wiley Adams is on the Choc
taw census roll of 1890 as an intermarried citizen, which roll is the latest roll
in the possession of the Commission. From the records of the office of the Com
mission it appears that the applicant filed his original petition with the Com
mission in due time to be properly considered under the act of June 10, 181)0 ;
that while the application was denied by the Commission no appeal was taken
to the United States court in Indian Territory.
Quoting from the act of June 10, 1890, the Commission states that under it
the rolls of citizenship of the several tribes as then existing were confirmed, and
the Commission, under said act, had the power only to admit to citizenship and
to add to said rolls the names of those persons who applied to them for citi
zenship, and no authority existed giving the Commission at that time power to
eliminate from the tribal rolls the name of any one thereon.
The Commission says it appears from the decision in the case of Jennie John
son et al., Creek case No. 72, approved by the Department January 29, 1902
(I. T. D., 599-02), that where an application is made under the act of Congress
of June 10, 189(5, to the Commission to the Five Civilized Tribes, which applica
tion was denied, the decision became final ; but that it appears from the records
of the Commission that the case of Wiley Adams is distinguishable from the
Jennie Johnson case, as in that case the names of the applicants had been
stricken from the tribal rolls by the tribal authorities, while in the case of this
applicant he was recognized by the tribal authorities of the Choctaw Nation,
and his name appears upon the Choctaw census roll of 189G, page 380, No.
14255.
Quoting the provision of the act of Congress approved June 28, 1898 (30 Stat,
495), as follows:
Said Commission is authorized and directed to make correct rolls of the citizens by
blood of all the other tribes (except Cherokee), eliminating from the tribal rolls such
names as may have been placed thereon by fraud or without authority of law, enrolling
such only as may have lawful right thereto, and their descendents born since such rolls
were made, with such intermarried white persons as may be entitled to Choctaw and
Chickasaw citizenship under the treaties and the laws of said tribes.
The Commission says not until this act became a law did the Commission have
any authority to deal with the applicant's name, and under this act the only
power the Commission has is to strike his name from the rolls, provided it is
made to appear that it was placed thereon by fraud or without authority of law.
No charge of fraud is suggested in the record, and the Commission says it is
conceded that the national council in 1884 had the authority to admit this
applicant to citizenship in said nation'.
It is therefore the opinion of the Commission that its action upon the petition
of the applicant for citizenship under the act of Congress of June 10, 1896, was
without authority of law and of no force and effect upon the status of the
applicant as a citizen of the Choctaw Nation ; and also that Wiley Adams is a
citizen of the Choctaw* tribe of Indians in Indian Territory, and that his appli
cation therefore should be granted, and it was so ordered.
I can see no conflict or lack of harmony between the decision of the Commis
sion herein and of the Department in the case of Jennie Johnson et al. Jennie
Johnson's name did not appear upon a roll of the citizens of the Choctaw
Nation at the time of the hearing in her case, because it had been stricken from
LAWS AFFECTING THE FIVE CIVILIZED TBIBES. 147
the rolls by the action of the Choctaw national council. It was proper that she
should have appeared before the Commission in 1896, if she saw fit, for the pur
pose of having the Commission reinstate her under the law in force at that time,
but the Commission deciding against her interests the Department sustained
its action.
In the case ol Wiley Adams, he was already on a roll of the Choctaw Nation,
which, by the law of June 10, 1896, was confirmed, and there was no authority
conferred on the Commission by that law to reject him, so that in the case of
Jennie Johnson et al. the Commission was acting within the scope of its author
ity in rejecting them ; but in the case of Wiley Adams it had no authority of law
to take the action it did.
As is suggested by the Commission, it had no authority under that law to re
move his name from the Choctaw tribal rolls, and its action in that instance was
a nullity.
Under the act of June 28, 1898, the Curtis Act, additional powers were vested
in the Commission in that it was authorized to remove names from the rolls
which had been placed there improperly, but the investigation in this case did
not disclose any improper circumstances in connection with the enrollment of
Wiley Adams by the Choctaw tribal authorities.
No charge had been made that the name was there improperly, and it is my
judgment that the action of the Commission in this case is proper and should
be approved, and I recommend accordingly.
Very respectfully, A. C. TON NEB,
Acting Commissioner.
OFFICE OF THE SECRETARY,
Washington, D. C., August 3, 190%.
COMMISSION TO THE FIVE CIVILIZED TEIBES,
Muscogee, Ind. T.
GENTLEMEN : June 8, 1904, you transmitted the papers in the matter of the
application of Clay McCoy for enrollment as a citizen, by intermarriage, of the
Chickasaw Nation.
It appears that McCoy was married in 1895 to a citizen by blood of the
Chickasaw Nation, in accordance with the laws of that nation ; that his wife's
name is now borne upon the rolls of the Chickasaw Nation prepared by you and
approved by the Department, and that they have resided continuously in said
nation since their marriage. In 1896 McCoy was " admitted " as a citizen by
intermarriage by your Commission. Your decision was affirmed, in 1898, by
the United States court for the southern district of Indian Territory. The
decision of the United States court was vacated, however, by a decree of the
Choctaw-Chickasaw citizenship court rendered December 19, 1902, in the test
case of J. T. Riddle v. The Choctaw and Chickasaw Nations.
You express the opinion that your Commission is apparently without further
jurisdiction or authority in any manner to determine McCoy's application. You
request, however, inasmuch as the cases of a number of applicants occupy an
analogous status with that of Clay McCoy, that your Commission be specifically
instructed as to what disposition should be made of such cases.
Reporting in the matter June 24, 1904, the Acting Commissioner of Indian
Affairs recommends " that the Commission be advised that they are without
authority to take action of any character looking to the enrollment of Clay
McCoy, or any person similarly situated."
In an opinion rendered July 30, 1904, approved by the Department the same
day, relative to the question submitted by you, the Assistant Attorney-General
for this Department concurred in the views of the Indian Office. A copy of his
opinion is inclosed herewith, for your guidance, together with a copy of the
Acting Commissioner's letter.
Respectfully, THOS. RYAN, Acting Secretary.
OFFICE OF THE ASSISTANT ATTORNEY-GENERAL,
Washington, D. C., July 30, 1904.
The SECRETARY OF THE INTERIOR.
SIR : I received by reference of July 23, 1904. the papers in the application of
Dr. Clay McCoy, for enrollment as a citizen by intermarriage, of the Chickasaw
Nation, transmitted by the Commission to the Five Civilized Tribes, with
148 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
request for specific instructions for their guidance in similar cases. I am
requested to render an opinion upon the case presented.
The record shows that McCoy, a white man, April 17, 1895, according to the
usages and customs of the Chickasaw Nation, under a Chickasaw tribal license,
married Sallie Goldsby, a recognized and enrolled citizen by blood of the
Chickasaw Nation. She has been enrolled by the Commission, No. 3905 of the
rolls approved by the Secretary of the Interior December 12, 1902. Since the
marriage McCoy has lived continuously with her in the Chickasaw Nation.
Under the act of June 10, 1896 (29 Stat, 321), McCoy, August 29, 180C.,
applied to the Commission to be enrolled as a citizen by intermarriage, which
was allowed November 23, 1896, and the Chickasaw Nation alone appealed to
the United States court, southern district, Indian Territory, and by that court
the judgment of the Commission was affirmed March 15, 1898. Under the act
of July 1, 1902 (32 Stat, 641), in a suit instituted by the Choctaw and Chicka
saw nations against J. T. Riddle and others, this judgment admitting McCoy
to enrollment was vacated December 17, 1902. McCoy did not appeal or obtain
certification of his case to the citizenship court under sections 31, 32, and 33 of
the act of July 1, 1902 (32 Stat., 646-648), but, at suggestion of counsel for the
Chickasaw Nation, given him December 24, 1902, applied to the Commission to
the Five Civilized Tribes for enrollment. February 15, 1904, with reference to
this and like cases, the Commission adopted a rule that —
Resolved, That the status of these applicants in whose cases appeals to the Choctaw
and Chickasaw citizenship court have not heen taken be considered by the Commission
without reference to any action by the United States court in Indian Territory or by the
Choctaw and Chickasaw citizenship court, and that the original judgment as entered by
the Commission to the Five Civilized Tribes in 1896 be held valid and in full force and
effect.
The Choctaw and Chickasaw nations objected, and such proceedings were
taken that May 3, 1904, the Secretary of the Interior requested the opinion of tho
Attorney-General as to the effect of the decree of the citizenship court, who,
May 9, 1904, rendered his opinion —
That annulment of the United States court judgments affirming a favorable decision
of the Commission to the Five Civilized Tribes upon an application for citizenship so
far deprives the applicant of a favorable judgment as to devolve upon him the duty of
causing his cause to be transferred to the citizenship court.
I am further of opinion that annulment of the United States court judgment did not
revive and put into force and effect the judgment of the Commission to the Five Civilized
Tribes admitting such person to citizenship, and that enrollment by the Commission based
upon such a theory would be a clear violation of the rights of the Indian nations.
The Commission to the Five Civilized Tribes expresses the opinion that —
In view of this recent opinion the Commission is apparently without further jurisdic
tion or authority in any manner to determine the application of Clay McCoy for enroll
ment as a citizen by intermarriage of the Chickasaw Nation. Seemingly his failure to
appeal or have certified to the Choctaw and Chickasaw citizenship court the record in
the case before the United States court for the southern district ot the Indian Territory
has so far deprived him of a favorable judgment as to prohibit his enrollment as an
intermarried citizen of the Chickasaw Nation.
The Indian Office recommends that —
It is therefore respectfully recommended that the Commission be advised that they are
without authority to take action of any character looking to the enrollment of Clay
McCoy or any person similarly situated,
My attention is by the letter of reference specially directed to sections 27, 28,
and 34 of the act of July 1, 1902, supra, which sections, so far as here material,
are as follows :
27. The rolls of the Choctaw and Chickasaw citizens and Choctaw and Chickasaw freed-
men shall be made by the Commission to the Five Civilized Tribes in strict compliance
with the act of Congress approved June 28, 1898 (30- Stats., 495), and the act of Congress
approved May 31, 1900 (31 Stats., 221), except as herein otherwise provided: Provided,
That no person claiming right to enrollment and allotment and distribution of tribal
property by virtue of a judgment of the United States court in the Indian Territory
under the act of June 10', 1896 (29 Stats., 321), and which right is contested by legal
proceedings instituted under the provisions of this agreement, shall be enrolled or receive
allotment of lands or distribution of tribal property until his right thereto has been finally
determined.
28. The names of all persons living on the date of the final ratification of this agree
ment entitled to be enrolled as provided in section 27 hereof shall be placed upon the rolls
made by said Commission.
*******
34. During the ninety days first following the date of the final ratification of this agree
ment the Commission to the Five Civilized Tribes may receive applications for enrollment
only of persons whose names are on the tribal rolls, but who have not heretofore been
enrolled by said Commission, commonly known as " delinquents," and such intermarried
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 149
white persons as may have married recognized citizens of the Choctaw and Chlckasa^y
nations in accordance with the tribal laws, customs, and usages on or before the date of
the passage of this act by Congress. * *
McCoy was clearly a person whose right was " contested " within the meaning
of section 27. Whether he was or was not made party to the representative suit
contemplated by sections 31, 32, and 33, he had right to he made a party on
application, and the judgment in the action operated to annul the favorable
judgment that he before had recovered.
It is not my province to question the opinion of the Attorney-General herein
rendered May 0, 3004. supra. That opinion is conclusive in the present case. I
therefore concur in the view expressed by the Indian Office.
Very respectfully,
FRANK L. CAMPBELL,
Assistant Attorney-General.
Approved July 30, 1904.
THOS. RYAN, Acting Secretary.
OFFICE OF INDIAN AFFAIRS,
Washington, D. (7., June 24, 190 fi.
The honorable the SECRETARY OF THE INTERIOR.
SIR : I have the honor to inclose herewith a report from the Commission to the
Five Civilized Tribes, dated June 8, 1904, in which they say that Clay McCoy, a
white man, who has resided in the Chickasaw Nation for thirty-three years last
past, was married to Sallie Goldsby, a recognized and enrolled citizen of the
Chickasaw Nation, on April 17, 1895 ; that said marriage was performed in
accordance with the laws of the Chickasaw Nation, and was solemnized on April
17, 1895, by Rev. J. S. Murrow ; that the applicant's wife has been enrolled as a
citizen by blood of the Chickasaw Nation ; that her name appears on the ap
proved partial roll opposite No. 3905; that McCoy has lived in the Chickasaw
Nation continuously since his marriage, and that he and his wife have lived
together as husband and wife since said marriage ; that under provisions of the
act of June 10, 189(5, Clay McCoy applied to the Commission for admission to
citizenship in the Chickasaw Nation as an intermarried citizen, claiming right
by virtue of his marriage to Sallie McCoy, nee Goldsby, that on November 23,
189(5, the Commission rendered a decision admitting Clay McCoy as an inter
married citizen of the Chickasaw Nation ; that an appeal was taken from the
Commission's decision, and that on March 15, 1898, the United States court for
the southern district of the Indian Territory affirmed the Commission's de
cision.
They then say that by the decision of the Choctaw-Chickasaw citizenship
court of December 17, 1902, in the test suit, that of the Choctaw-Chickasaw Na
tions f. J. T. Riddle et al., the judgment of the United States court in the case
mentioned was annulled and vacated ; that after the rendition of the judgment
mentioned Clay McCoy on December 22, 1902, addressed a communication to
Mansfield, McMurray and Cornish, attorneys for the Choctaw and Chickasaw
Nations, relative to his status at that time as an intermarried citizen of the
Chickasaw Nation, and that on December 24, 1902, they advised him as follows :
The decision of the Choctaw and Chickasaw citizenship court is that all "court
claimants " judgments are void. The effect of this would be of course to leave the
judgments of the Dawes Commission as they were before they were appealed from.
As to whether or not the Commission would permit application in pursuance of this
judgment we are unable to say, but it might be well for you to make such an application
along the line suggested in your letter.
It is shown by said report that Clay McCoy did not appeal from the decision
of the United States court or have certified to the Choctaw and Chickasaw
citizenship court within the time prescribed by the act of July 1, 1902 (32 Stat.
L., 641), the record and proceedings in his case before the United States court for
the southern district of the Indian Territory and that the Commission, at a
session held at the general office at Muscogee, Ind. T., on February 15, i904,
with reference to persons occupying an analogous status to that of Clay Mc
Coy, adopted the following resolution :
Resolved, That the status of these applicants in whose cases appeals to the Choctaw
and Chickasaw citizenship court have not been taken, lie considered by the Commission
without reference to any action by the United States court in Indian Territory or by the
Choctaw and Chickasaw citizenship court and that the original judgment as entered by
the Commission to the Five Civilized Tribes in 1896 be held valid and in full force and
effect.
150 LAWS AFFECTING THE FIVE CIVILIZED TKIBES.
. To this action of the Commission the attorneys for the Choctaw and Chicka-
saw nations entered objections, and all of the papers received with the Com
mission's report of February 15, 1903, concerning this subject, were transmitted
to the Department, with office report of March 12, 1904. This office did not
agree with the position taken by the Commission, and the Acting Attorney-
General, in an opinion dated May 9, 1904, said :
That annulment of the United States court judments affirming a favorable decision of
the Commission to the Five Civilized Tribes upon an application for citizenship so far
deprives the applicant of a favorable judgment as to devolve upon him the duty of caus
ing his cause to be transferred to the citizenship court.
I am further of opinion that annulment of the United States court judgment did not
revive and put into force and effect the judgment of the Commission to the Five Civilized
Tribes admitting such persons to citizenship and that enrollment by the Commission
based upon such theory would be a clear violation of the rights of the Indian nations.
The Commission say that in view of this opinion they are apparently without
jurisdiction or authority in any manner to determine the application of Clay
McCoy for enrollment as an intermarried citizen of the Chickasaw Nation, and
ask for instructions in the premises.
The opinion of the Acting Attorney-General is in plain and unmistakable
language. He says that it was the duty of all persons who had favorable court
judgments, which judgments were annulled by the decision in the test suit, to
appeal to the citizenship court within the time prescribed by the supplemental
agreement, and that the duty of causing the record and proceedings had in the
United States court to be transferred to the citizenship court was incumbent
upon the applicant, and that by a failure to cause such transfer to be made
within the time prescribed by law the applicant was not entitled to enrollment.
Under this opinion it is evident that in cases of the character of the one under
consideration the Commission has no power or authority in the premises, and
that the Department has no duty to perform.
It is therefore respectfully recommended that the Commission be advised that
they are without authority to take action of any character looking to the enroll
ment of Clay McCoy, or any person similarly situated.
Very respectfully,
A. C. TONNEB, Acting Commissioner.
OFFICE OF THE SECRETARY,
Wushintgon, D. C., April J, 1905.
COMMISSION TO THE FIVE CIVILIZED TRIBES,
Muscoyec, Ind. T.
GENTLEMEN : On October 27 and 31, 1904, respectively, you transmitted the
papers in the matter of the dismissal of the applications of Benjamin J.
Vaughan for enrollment as a citizen by intermarriage, and for the enrollment of
his children, Edward A., Grover Cleveland, and Oscar S. Vaughan as citizens
by blood of the Chickasaw Nation.
The principal applicant, Benjamin J. Vaughan, claims enrollment by inter
marriage with Emily Burney, a recognized citizen by blood of said nation. The
other applicants herein are the children of this marriage. It is claimed on
behalf of all the applicants that their names are borne upon the rolls of the
Chickasaw Nation. That this is true so far as the names of the children of
Benjamin J. Vaughan are concerned is seen from your report of October 11,
1904, relative to certain persons whose names appear upon the tribal rolls
of the Choctaw and Chickasaw nations, concerning whom your Commission
and the United States courts exercised jurisdiction under the act of Congress
approved June 10, 1896 (29 Stat, 321).
On September 20, 1904, you dismissed the application of Benjamin J. Vaughan
from your records, and on September 23, 1904, you took like action concerning
the other applications, deeming your Commission without jurisdiction as to any
of them, by reason of the opinion of the Acting Attorney-General of May 9,
1904, and the opinion of the Assistant Attorney-General for this Department in
the case of Dr. Clay McCoy, dated and approved July 30, 1904.
In an opinion rendered March 24, 1905, approved by the Department the same
day, the Assistant Attorney-General receded from the views expressed in the
McCoy opinion, and held that the applicants herein, as well as all persons simi
larly situated, including McCoy, are entitled to have their cases considered upon
their merits.
At the hearing of December 22, 1902, the testimony of Benjamin J. Vaughau
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 151
was taken, showing that his second wife, Emily Burney, was a citizen by blood
of the Chickasaw Nation, but no testimony was furnished, save the mere state
ment of said applicant, that his marriage to her was performed in accordance
with the tribal law. Record evidence that his marriage was so performed should
have been furnished or its absence satisfactorily explained. Furthermore, Mr.
Vaughan states that he was married about 1882 to this Chickasaw woman, but
that at the time of said marriage a former wife of his was living, from whom
he claims he had obtained a divorce. It should be shown by the best evidence
obtainable that Mr. Vaughan obtained a legal divorce from his first wife ; other
wise the benefits of citizenship would not inure to him by reason of his mar
riage with the said Emily Burney. It is true that the principal applicant states
that he obtained a divorce, but if his statement is true, record evidence should
be produced or its absence satisfactorily explained and secondary evidence fur
nished in lieu thereof.
It is noted that no testimony was taken concerning the other applicants
herein, and that, other than certain statements appearing in the correspondence,
there is no evidence showing that they are the children of Mr. Vaughan by the
said Emily Burney. It therefore appears that the testimony contained in the
record is insufficient to warrant the final adjudication of the case at this time.
The record is therefore returned to you, with a copy of the said opinion of the
assistant attorney [general] of March 24, 1005, in order that additional testi
mony may be taken and the case adjudicated upon its merits.
Respectfully,
THOS. RYAN, Acting Secretary.
OFFICE OF THE ASSISTANT ATTORNEY-GENERAL,
Washington, D. C., March 24, 1905.
The SECRETARY OF THE INTERIOR.
SIR: I received, by reference of December 23, 1904, with request for my
opinion thereon, the record in the applications of Benjamin J. Vaughan to be
enrolled as citizen by intermarriage of the Chickasaw Nation, and of his
children, Edward A., Grover C., Oscar S., and Benjamin C. (deceased November
10, 1900), to be enrolled as citizens by blood.
About 1882 Benjamin J. Vaughau was married to Emily Burney, a recognized
Chickasaw citizen by blood. The record does not show that his name is found
on any of the Chickasaw rolls, but July 22, 1904, the governor of the nation
states in a letter that the father and first three of his children appear upon the
leased district pay roll and 1890 census roll, and August 22, 1904, counsel for the
nation state in a letter that their names " appear upon all the tribal rolls of the
Chickasaw Nation." September 20, 1904, in the father's case, and September 23,
1904, in that of the children, the Commission found that November 10, 1896, the
principal applicant, as citizen by intermarriage, and the first three children
named, as citizens by blood, were admitted to citizenship of the Chickasaw Na
tion, from which decision the nation appealed to the United States district court
for the southern district of Indian Territory, which affirmed the decision.
December 17, 1902, the Choctaw and Chickasaw citizenship court, under act of
July 1, 1902 (32 Stat, 041, 64G-G48), set aside the judgment, and no further
steps of appeal or certification of the case to the citizenship court for a trial de
novo were taken within the time prescribed by said act, and the Commission
decided that —
In accordance with the opinion of the Acting Attorney-General, dated May 9, 1904
(I. T. D., 3824-1904), and the opinion of the Assistant Attorney-General for the De
partment of the Interior, dated July 30, 1904 (I. T. D., 5246-1904), the Commission
* * * is without authority to take any action of any character looking to the enroll^
ment of (the applicants), and it is therefore hereby ordered that the applica
tion * * * be dismissed.
November 22, 1904, the Indian Office transmitted the records, recommending
nffirmance of the action of the Commission.
As to the opinion of the Acting Attorney-General of May 9, 1904, it must be
observed that an opinion, like the decision of a court, applies only to such facts
as are predicated as the basis of such opinion or judgment. The question sub
mitted by the Department to the Attorney-General was, whether the annulment
by the citizenship court of the judgment of the United States district court in
these appealed citizenship cases operated to leave the decision of the Com
mission appealed from in force. This necessarily assumed that the Commission
itself had original jurisdiction to render, and did render, a valid decision.
152 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
The point here involved is whether the Commission in 1890 had original juris
diction to admit or to deny citizenship to these applicants. It is the settled rule
of the Department, in the case of Wiley Adams (I. T. D., 4398), May 21, 1903, and
those following it, that the Commission had no jurisdiction under the act of
1896, supra, to admit to citizenship or to refuse to admit to citizenship those
borne on the rolls, as the rolls were confirmed by the act, and as to such
persons the Commission was without power except the ministerial one of inscrib
ing their names on its rolls when they were identified as upon the tribal rolls.
It is also held by the Commission, and by my opinion in case of Mary Eliza
beth Martin (I. T. I)., 11 85(5-] 904), that intermarriage as to the white person
operates under Article XXXVIII of the treaty of April 28, 1866 (14 Stat., 7059,
779), as admission to the tribe, and is the full equivalent of enrollment, so
that, whether such intermarried person was enrolled or not, the Commission, in
1896, were without power to exclude them from the rolls.
It is also conclusively shown that the Choctaw and Chickasaw nations did
not contend otherwise before the Attorney-General. It was stated in their brief
presented and considered by the Attorney-General that —
If there are persons falling within the class to which this brief refers — who had a
tribal enrollment and recognition as citizens by blood of the Choctaw or Chickasaw
Nation, or who have intermarried in accordance with tribal laws to citizens by blood
so enrolled and recognized — none of the proceedings of the Commission to the Five
Civilized Tribes or the United States courts can affect or did affect their status one
way or the other. Such proceedings are void as held by the Choctaw and Chickasaw
citizenship court, and are not subjects of consideration as weighing either for or against
a citizen applicant. As to the persons who are now applicants before the Commission
to the Five Civilized Tribes for enrollment, under the act of Congress approved June 28,
1898. and later acts, their citizenship rights are to be determined upon their merits,
without reference to what may or may not have been done either for or against them by
void proceedings had before the Commission to the Five Civilized Tribes or the United
States court under the act of June 10, 1896.
As to them, the 1896 proceedings should be eliminated entirely and their citizenship
rights determined under the Curtis Act and later acts. Our contentions apply and can
apply only to those persons falling within this class who have no tribal enrollment and
recognition or who have not intermarried with citizens by blood in accordance with
tribal laws, but who rely as a basis for their citizenship upon proceedings had under the
act of June 10, 1896.
We submit that the act of June 10, 1896, is itself conclusive of the correctness of this
view. Furthermore, in addition to the construction which must appear from an examina
tion of the face of the act itself, the Department of the Interior has so held in the
noted Choctaw enrollment case of Wiley Adams. Under the act of June 10, 1896, the
tribal rolls were confirmed (this confirmation was of course removed by the Curtis Act
and does not affect the Commission in the exercise of its jurisdiction therein), and by
the Wiloy Adams case it is held that the act of June 10, 1896, means what it says, and
that as to persons having a tribal status the Commission acquired no jurisdiction over
them, and anything which may have been done thereunder either for or against them
was in excess of the Commission's jurisdiction and is to be given no consideration.
The Acting Attorney-General, May 9, 1904, stated the contention, the question
submitted, and his opinion, as follows :
It is now maintained by the Indian nations that it was the duty of applicants, decrees
in whose favor were annulled and who desired to insist on their claims, to give notice
and transfer their causes to the citizenship court, as provided by statute, and to have
the same there determined. On the other hand, the applicants insist that annulment of
judgments of United States courts in their favor left the action of the Commission to
the Five Civilized Tribes admitting them to enrollment in force, and that they are now
entitled to rely upon the same and to be recognized as citizens.
In view of the foregoing facts, and to enable you to determine what course to pursue,
you request my opinion " whether the annulment of the United States court judgment
affirming a favorable decision of the Commission to the Five Civilized Tribes upon an
application for citizenship so far deprived the applicant of a favorable judgment as to
devolve upon him the duty of causing his cause to be transferred to the Choctaw and
Chickasaw citizenship court, as provided in section 31 of said act of July 1, 1902, to
protest and preserve his claimed rights, or whether the annulment of the United States
court judgment revived and put in force and effect the judgment of the Commission to
the Five Civilized Tribes admitting such person to citizenship.
***«**«
I am of opinion that annulment of the United States court judgment affirming a
favorable decision of the Commission to the Five Civilized Tribes upon an application
for citizenship so far deprived the applicant of a favorable judgment as to devolve upon
him the duty of causing his cause to be transferred to the citizenship court. I am
further of opinion that annulment of the United Stntes court judgment did not revive
and put in force and effect the judgment of the Commission to the Five Civilized Tribes
admitting such person to citizenship, and that enrollment by the Commission based
upon such a theory would be a clear violation of the rights of the Indian nations.
It is obvious that the question here presented was not in the contention? con
sidered by the Attorney-General, and whether the general terms of the opinion
might be wide enough to cover such case, yet the opinion can not be construed
to apply to or affect a case wherein the Commission in 1896 was without juris
diction to deny citizenship to the applicant.
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 153
My opinion of July 30, 1904, in Dr. Clay McCoy (I. T. D., 524G-1904), is also
cited by the Commission as authority preventing its consideration of the present
cases. McCoy, a white man, April 17, 1895, in conformity to Chickasaw law,
married an enrolled citizen by blood of the Chickasaw Nation, and had con
tinuously lived with her in the nation. He applied to the Commission, and his
enrollment was allowed November 20, 1890, and upon appeal of the Chickasaw
Nation the decision was affirmed by the United States district court March 15,
1898. This judgment was vacated December 17, 1902, by the citizenship court
under the act of July 1, 1902, supra, and no appeal was taken or certification
obtained of the case to that court. After rendition of the Attorney-General's
opinion of May 9, 1904, supra, the Commission, making reference thereto, held
that—
In view of this recent opinion the Commission is apparently without further juris
diction or authority in any manner to determine the application of Clay McCoy for
enrollment as a citizen by intermarriage of the Chickasaw Nation. Seemingly his
failure to appeal or have certified to the Choctaw and Chickasaw citizenship court the
record in the case before the United States court for the southern district of the Indian
Territory has so far deprived him of a favorable judgment as to prohibit his enrollment
as an intermarried citizen of the Chickasaw Nation.
The Indian Office recommended that the Commission be advised that it was
without authority to take action of any character looking to the enrollment of
Clay McCoy or any person similarly situated. Setting out sections 27, 28, and
34 of the act of July 1, 1902, supra, I expressed the opinion that —
McCoy was clearly a person whose right was " contested " within the meaning of
section 27. Whether he was or was not made party to the representative suit contem
plated by sections 31, 32, 33, he had right to be made party on application, and the
judgment in the action operated to annul the favorable judgment that he before had
recovered.
Upon reexamination of the files referred in the case of Dr. Clay McCoy I
find that neither by brief of counsel nor suggestion of the Commission, Indian
Office, or letter of reference was it called to my attention that there was lack
of original jurisdiction to exclude the applicant. Nor were the opinion and
brief of counsel upon the question submitted to the Attorney-General then
before me. I was led to assume that McCoy's case was within the question
then submitted, and was controlled by the decision. That assumption was
clearly erroneous in fact, and for that reason and reasons stated herein and
in the case of Mary Elizabeth Martin I recede from the opinion then expressed,
and am of opinion that the Commission is not precluded by the opinion of the
Attorney-General of May 9, 1904, from consideration of the present cases, or
those of like facts, upon their merit.
Very respectfully, FRANK L. CAMPBELL,
Assistant Attorney-General.
Approved March 24, 1905.
E. A. HITCHCOCK, Secretary.
OFFICE OF THE SECRETARY,
Washington, D. C., February 15, 1905.
COMMISSION TO THE FIVE CIVILIZED TRIBES,
Miiscogec, Ind. T.
GENTLEMEN : Inclosed herewith is a communication, dated December 10,
1904, from Mrs. Loula West, of Ardmore, I ml. T., forwarding a petition ad
dressed to the President, praying him to cause an investigation to be made of
the allegations contained in said petition, and, if said allegations are found to
be true, to cause her name to be placed upon the final roll of the Choctaw
Nation.
It appears from said petition that your Commission deems itself precluded
from considering her case by reason of a decision of the Choctaw-Chickasaw
citizenship court denying her enrollment.
In an opinion dated February 10, 1905, approved by the Department, the
Assistant Attorney-General held that your Commission has jurisdiction to
examine into the claimant's case, and should adjudicate it upon its merits,
regardless of any judgment of the citizenship court.
Inclosed herewith is a copy of said opinion for your guidance. You will
permit the petitioner to submit such testimony in support of her claim as she
may see fit.
Respectfully, M. W. MILLER, Acting Secretary.
154 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
OFFICE OF THE ASSISTANT ATTORNEY-GENERAL,
Washington, T). C. February 10, 190~).
The SECRETARY OF THE INTERIOR.
SIR : I received by reference of December 23, 1004, with request for opinion
thereon, the communication of Mrs. Loula West, addressed to the President,
asking an investigation of the Choctaw citizenship case of herself and others
of the same family.
The petition states that she is of Choctaw descent, born in Tennessee,
removed to the nation twenty years ago, and has ever since resided there ;
that she applied to the Choctaw authorities for readinission and was denied,
but appealed to the Indian agent at Muscogee; the matter was fully heard,
the agent found her claim proven, recommended her admission July 15, 1889,
and this action was approved by the Secretary of the Interior January 9,
1890 ; that she was regularly borne on the tribal rolls, and drew the leased
district money payment in 1893, as shown by the authenticated rolls in the
possession of the present Commission.
She then states that she applied to the Dawes Commission under the act
of June 10, 1896 (29 Stats., 321, 339), and was admitted, from which the
Choctaw Nation appealed to the United States court for the central district of
Indian Territory, which affirmed the judgment, after which the citizenship
court, organized under the act of July 1, 1902 (32 Stat, (Ml, 64(5-648), annulled
this judgment, and the cause was transferred to that court to be adjudicated,
whereupon she filed a motion for dismissal of the cause upon the ground that
the court had no jurisdiction of it, but the motion was overruled, and ulti
mately the court denied her enrollment.
She states that the Commission to the Five Civilized Tribes admit the
justice of her claim to Choctaw citizenship, but deem themselves precluded
from considering it by the judgment of the citizenship court, and she prays
investigation of her case by the President and an order to the Secretary of
the Interior that she be placed on the rolls, if such allegations are found to be
true.
Accepting such allegations as true, for the purposes of discussion here, I am
of opinion that the Commission has ample jurisdiction to examine into the
merits of her claim, and, if the facts are found to be as stated, that she is en
titled to be enrolled.
The act of June 10, 1896, confirmed the tribal rolls, and under it the Coin-
mission had no jurisdiction or power to eliminate persons therefrom. In respect
to such persons, already recognized as citizens on the tribal roll, they had no
power other than identification and entry upon the roll by them to be prepared.
Such action was not a decision of admission of such applicant to citizenship, as
that status already existed. In her case (as the facts are stated) it existed by
virtue of her recognition and enrollment as a Choctaw by the Secretary of the
Interior January 9, 1890. That the Commission had no power to deny enroll
ment of such an applicant was decided by the Department May 21, 1903, in the
Choctaw case of Wiley Adams.
The United States court, under the act of 1896, supra, had in citizenship cases
no other jurisdiction than an appellate one, and from the very nature of such
jurisdiction obtained no jurisdiction by an attempted appeal of a matter wheivin
the original tribunal had no jurisdiction. My opinion was so expressed in lite
recent Creek case of Mary C. Keifer (I. T. D. 5066, 1902, 6236, 1903). It follows
that the attempted appeal by the Choctaw Nation in the case here under consid
eration, if the facts are as stated, vested no jurisdiction in the court to which
the appeal was attempted to be taken, and, its judgment being essentially and
necessarily a nullity, the citizenship court itself obtained no jurisdiction in the
case by going through the form of annulling a judgment that for total want of
original jurisdiction had never any validity or operation.
I am therefore of opinion that the Commission to the Five Civilized Tribes
have jurisdiction, upon the facts stated, to examine into the claimant's case,
and should adjudicate it upon its merits regardless of any judgment of the
citizenship court.
Very respectfully, FRANK L. CAMPBELL,
Assistant Attorncy-GcncraL
Approved February 10, 1905.
E. A. HITCHCOCK,
Secretary.
LAWS AFFECTING THE FIVE CIVILIZED TKTBES. 155
OFFICE OF THE SECRETARY,
Washington, D. C., December 13, 190.").
COMMISSIONER TO THE FIVE CIVILIZED TRIBES,
Miiscogcc, Ind. T.
SIR: There is inclosed a copy of the opinion of the Assistant Attorney-General
of December 8, 1905, in the Choctaw enrollment case of Lonla West et al.,
approved the same day, in which he adheres to his former opinion.
You will proceed in this and analogous cases in accordance with such opinion.
Thomas Norman, of Ardinore, Ind. T., appears as attorney for the applicants
in this case.
Respectfully, THOS. RYAN,
First Assist ant Secretary.
OFFICE OF THE ASSISTANT ATTORNEY-GENERAL,
Washington, J). C., December <S, 1905.
The SECRETARY OF THE INTERIOR.
SIR: I received by reference of April 22, 1005, the motion of counsel for the
Choctaw suid Chickasaw nations for reconsideration of my opinion of February
10, 1005, iu case of Lonla West and others (I. T. D. 10.353, 1004), applicants for
enrollment as citizens of the Choctaw Nation. The motion assigns error in the
most general terms that " the conclusions of law therein reached are erroneous
and should not stand." No error of statement of fact is alleged, and for all
purposes of this motion it stands conceded that —
Loula West is a Choctaw, born in Tennessee, who removed to the nation
twenty years ago and has ever since resided there. She applied to the Choc-
law authorities for readmission, was denied, appealed under a Choctaw law to
the Indian Office, was admitted January 0, 1800, by the Secretary of the Inte
rior, was thereafter borne on the tribal rolls and participated in the 1803 leased
district money payment. She was enrolled by the Dawes Commission under
the act of June 10, 1800 (20 Stat, 321, 330). The Choctaw Nation appealed to
the United States court, central district, Indian Territory, which affirmed the
judgment, after which the citizenship court, under the act of July 1, 1002 (32
Stat., (541, G4<>-(>48), in the test suit, annulled this judgment ; the cause was trans
ferred to that court for adjudication ; she filed a motion for its dismissal upon
the ground that the court had no jurisdiction ; the motion was overruled, and
the court entered a judgment denying her enrollment. She applied to the pres
ent Commission for enrollment, and was denied upon the ground that the Com
mission is barred from consideration of her case by the judgment of the citizen
ship court.
Upon these facts, February 10, 1005, I rendered an opinion that, as the tribal
rolls were confirmed by the act of June 10, 180(5, supra, the Commission had no
jurisdiction to purge the tribal rolls, and had only a ministerial duty to enroll
all enrolled persons, and as the United States court and the citizenship court had
no original jurisdiction in such cases, but only an appellate one in cases ap
pealed from decisions of the Commission upon applications by unenrolled per
sons for admission to citizenship, all the proceedings in the case of Loula West
were without jurisdiction of either the United States or the citizenship court
and a nullity, and that it was the duty of the Commission to the Five Civilized
Tribes to consider the case and adjudicate it upon its merits.
In oral argument the general assignment of error in the conclusions of law
was defined to be :
(1) In holding that any rolls of the Choctaw Nation existed which were con
firmed by the act of June 10, 1800.
(2) But whether so or not, these applications belong to the class of persons
" deprived of a favorable judgment " of the United States court by the judgment
of the citizenship court, which thereby acquired jurisdiction to act finally and
to conclude them by its final judgment.
With the motion is also transmitted for my consideration the letter of the
Commission to the Five Civilized Tribes and of May 27, 1005, wherein the Com
mission recites the facts in case of Loula West, above briefly set 'out, and,
among other things, says:
The Commission has not as yet complied with the instructions contained in depart
mental letter of February 1«~>, lOOf), and before doing so desires * * * to call atten
tion to certain departmental opinions heretofore rendered in reference to persons who
applied for citizenship in the Choctaw and Chickasaw nations under the provisions of
the act of Congress approved June 10, 189G (29 Stat., 321).
156 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
Reference is then made to the opinion of this Office of March 17, 1899, as to
the finality of decisions of the Commission under the act of 189G, supra ; to the
act of July 1, 1902 (32 Stat., 041), declaring that "the judgment of the citizen
ship court in any or all of the suits or proceedings committed to its jurisdiction
shall be final ; " to the opinion of the Acting Attorney-General of May 9, 1904,
in the matter of Richard B. Coleman ; departmental letters of June 1.0, 1904
(I. T. D. 1610-1904), in case of Andrew D. Pollock, and August 3, 1904 (I. T. D.
(J174-1904), in case of Dr. Clay McCoy, and my opinion of July 30, 1904, therein,
and proceeds to say that the Commission under these departmental plain con
structions of the acts of June 10, 1890, and July 1, 1902 —
has uniformly held (1) that the decisions of the Commission in 1896 admitting persons
to citizenship in the Choctaw and Chlckasaw nations, which were unappealed from, are
conclusive as to the rights of such persons to be enrolled * * * and (2) the decrees
of the Choctaw and Chickasaw citizenship court are, irrespective of any facts that might
have been considered in connection with the applications of such persons * * final.
This broad grant of power now seemingly conferred by the opinion of the
Assistant Attorney-General of February 10, 1905, will practically reopen for
adjudication a number of cases which have been adjudicated by the Commission
under the act of June 10, 1896, and by the Choctaw and Chickasaw citizenship
court. * * * If this direction is adhered to the Commission will be com
pelled to proceed to a trial de novo of numerous cases of applicants * * *
whose rights had, in our opinion, become res adjudicata, and where any proceed
ings wherein they might appear as parties in interest have been dismissed.
The plaint of the Commission seems to be, in substance, when analyzed, that
consideration of the cases of persons claiming right of citizenship, resident in
the nation and borne on the tribal rolls, will involve so much labor and be so
inconvenient that it prefers they should not be heard, regardless of whether
they were ever properly within the jurisdiction of the Commission in 189(5 and
of the citizenship court, or not, so only these tribunals, or the latter one,
assumed to render a decision depriving them of their clear right. It is needless
to say that I am of the opinion that the considerations suggested by the Com
mission are not of a character entitled to executive or judicial consideration.
It was first held by the Department, so far as I am advised, May 21, 1903, in
case of Wiley Adams, that the Commission under the act of 189(> was without
authority to admit or deny citizenship of persons borne on the tribal rolls as
citizens. I have had occasion in several more recent cases to examine the ques
tion, among others, in cases of Benjamin J. Vaughn (I. T. D. 11952-1904),
March 24, 1905; Stonewall J. Rogers (I. T. D. (1340-1904), March 25, 1905;
Mary Elizabeth Martin, March 24, 1905, and Dr. Clay McCoy, and have no doubt
that the decision of the Department was a true construction of the power of
the Commission under the act.
It is also well founded and well established that in appellate proceedings the
appellate tribunal obtains no jurisdiction of a cause by appeal, if the original
tribunal had none over the subject, and that such objection may be taken at any
time, and that consent of parties can not give jurisdiction. Elliott's Appellate
Procedure, 1892, says :
SEC. 12. Jurisdiction of the subject can not be given to any court by the parties, since
such jurisdiction can be conferred only by law.
SEC. 13. It is a necessary sequence * * * that parties can not by consent confer
upon the appellate tribunal authority to decide questions which are not in the record,
except in cases where it has original jurisdiction.
*******
SEC. 470. Objections to the jurisdiction of the trial court over the subject may be
successfully urged at any time. If the trial court did not have jurisdiction of the sub
ject the appellate court acquires none (citing Morris v. Gilmer, 129 U. S., 315 ; Chapman
r. Barney, ib., 077).
*******
SEC. 498. The rule that a party must adhere to the theory adopted in the trial court
does not preclude him from insisting on appeal that the trial court had no jurisdiction
of the subject, for nothing that a party can do, short of executing the judgment in
some way, can deprive him of the right of objecting to the jurisdiction. The theory
of the law is that where there is absolute want of jurisdiction there is no court, and
it is too clear for controversy that a party can neither create a court nor endow it with
authority over a subject not placed within its jurisdiction by law.
SEC. 503. * * * Where there is no jurisdiction there is no court, and if no court
there is, of course, no officer or tribunal capable of acting in the matter at all. The
phrase coram non judice does not mean that the person who assumes to be a judge is
not a judge, but an intruder, or usurper; on the contrary, it simply means that he is
not a judge in the particular case or class of cases.
I deem the matter too clear to admit of debate that if the Commission had no
power to purge the rolls and Mrs. West was on a tribal roll, all the power of the
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 157
Commission in 189(3 was the ministerial duty to inscribe her on the roll to be
prepared. Had the Commission denied her right, its action was a mere nullity.
Any appeal taken from their action was a mere nullity. Any judgment of
the United States court upon such appeal other than to dismiss it for want < f
jurisdiction was a mere nullity. Any action of the citizenship court upon it
was a mere nullity. That court had no jurisdiction, and should have dismissed
it upon her motion. The Commission should proceed to hear her case upon the
merits.
It is proper also for me here to add that it is not my province, nor do I
assume to make a " broad " or yet any " grant of power " to the Commission.
That is the province of Congress. I have merely endeavored to define what
powers were granted to the Commission and to the courts by the acts of June 10,
1896, and July 1, 1902. I have carefully examined the decisions of the Depart
ment, the opinion of the Attorney-General, and the former opinions from this
Office referred to by the Commission, and, without discussing them in detail,
find nothing therein inconsistent with the views herein expressed or in my
former opinion herein, which is based on a want of jurisdiction of the subject-
matter under the acts of 1896 and 1902, and I adhere to my former opinion
herein.
Very respectfully, FRANK L. CAMPBELL,
Assistant Attorney-General.
Approved, December 8, 1905.
E. A. HITCHCOCK,
Secretary.
OFFICE OF THE SECRETARY,
Washington, D. C., March 30, 1905.
COMMISSION TO THE FIVE CIVILIZED TRIBES,
Muscogec, Ind. T.
GENTLEMEN : February 10, 1904, you returned the record in the matter of the
application of Mary Elizabeth Martin for enrollment as a citizen of the Chicka-
saw Nation.
This applicant is the child of Walker Martin and Sallie Moore Martin.
Martin was formerly married to a Choctaw woman, and Sallie Moore to a
Chickasaw man.
The applicant was denied enrollment by your Commission under the act of
June 10, 1896, and no appeal was taken. In your decision of March 25, 190:>,
you denied her enrollment. Under date of November 19, 1904, the Acting Com
missioner of Indian Affairs furnished a report in the matter, a copy of which
is inclosed, recommending that your action be not approved and that the appli
cant be enrolled as a citizen of said nation.
The case was submitted to the Assistant Attorney-General, and in an opinion
rendered March 24, 1905, approved by the Department the same day, it was
stated in part as follows :
There is no evidence in the record before me to show whether applicant's parents, or either
of them, were married in conformity with the tribal laws governing their respective inter
marriages with their former Indian spouses, nor can such fact be certainly inferred as
having been satisfactorily proved. * * * If the applicant's parents, or either of
them, were married to theii former Indian spouses in conformity to law, they were, or
such one of them was, at he/ birth a citizen by Intermarriage by force of Article XXX VI II
of the treaty of 1806 (14 Stat., 779), in Indian allegiance, and the applicant was born
to such allegiance and entitled to recognition and enrollment if a white child without
Indian blood can be. * * * The Commission in 1896 had no jurisdiction to deny her
enrollment, and their assuming so to do was in excess of power and void, so that her
failure to appeal from that decision is no bar to her right; * * * the Commission
should consider and adjudicate her case upon the merits.
In accordance with this opinion, a copy of whicn is inclosed, the record in
the case is returned to you for further investigation. You will investigate the
matter and ascertain, if possible, whether the applicant's parents were married
to their former Indian spouses. in accordance with the tribal laws of the nations
into which said spouses were respectively intermarried. Thereafter, you will
readjudicate the case in the light of the additional testimony.
The record in the case is returned, together with the other papers.
Respectfully,
E. A. HITCHCOCK,
Secretary.
]58 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
OFFICE OF THE ASSISTANT ATTORNEY-GENERAL,
Washington, D. G., March 2>h 1905.
The SECRETARY OF THE INTERIOR.
SIR: I received by reference of December 29, 1904, with request for opinion
thereon, the papers in the case of Mary Elizabeth Martin, applicant for enroll
ment as a citizen of the Choctaw Nation.
The applicant was born about 1891, to Walker Martin and Sallie Moore Martin,
his wife, both being white intermarried citizens, the father having previously
married Bettie Munroe, a Choctaw, and the mother having previously married
Nelson Munroe, a Chickasaw. Both Indian spouses died prior to the marriage
of applicant's parents in 1891. It did not appear to the commission that the
applicant was ever enrolled by the tribal authorities as a citizen or admitted
to citizenship by the tribal authorities or by the Commission or the courts under
the act of June 10, 189C (29 Stat, 321, 329). August 28, 189(5, application was
made to the Commission by Mary's father in her behalf, which, November 23,
1890, was denied, and no appeal was taken from that decision. These facts arc
admitted. The Commission, under the act of June 28, 1898 (30 Stat., 495,
502-503) denied her enrollment. No briefs of counsel for applicant or for the
nation are in the record.
There are also transmitted for consideration with this record the report of
the Commission to the Five Civilized Tribes of January 24, 1903, made in the
case of Bettie Lewis respecting the custom of the Choctaw and Chickasaw
nations relative to the enrollment of intermarried white persons, and the re
port of December 31, 1901, in case of Martha Ann Jones, stating the practice of
the Commission, sanctioned by the Department, in cases of applications of inter
married persons for enrollment.
The report last mentioned states that in applications for enrollment as citi
zens by intermarriage the practice is to allow such enrollment upon production
in evidence of the tribal marriage license and certificate, showing the applicant's
marriage was in apparent conformity with the tribal law regulating intermar
riage of citizens and white persons, the applicant being entitled to " citizenship
under the treaties and laws of said tribes;" that in the Commission's opinion
the intermarriage of a citizen and a white person, in strict conformity to tribal
law, constitutes an act of admission of such white person to Indian citizenship,
and that to such cases the act of May 31, 1900 (31 Stat, 221, 23(3), in the Com
mission's opinion, does not applj7.
The report of January 24, 1903, in case of Bettie Lewis, above mentioned, is
to the effect that the Commission has never been furnished any authenticated
rolls of citizens of the Choctaw and Chickasaw tribes and it has no possession
or knowledge of any rolls of their citizens made during or prior to 1885. and the
Commission has never been furnished any roll prior to the leased district pay
ment roll of 1893, which the Commission uses, together with the 189f> census
roll, as the basis for identification of applicants. The Commission, at con
siderable length, state their correspondence with the executives of these tribes
and its own efforts of investigation. The principal chief of the Choctaw Nation
advised the Commission July 17, 1897, that he had refused to approve the last
revised roll made in accordance with an act of council (October, 189(5), because
he is satisfied there are some names thereon " that have been registered through
fraud or misrepresentation." The governor of the Chickasaw Nation, July 22,
1897, stated that " we have only one authenticated roll of citizens, and that is
the one approved by the legislature in 1896." The Commission also mention
having discovered and obtained from individual memoranda rolls made by Com
missioners leshatubby and Maytubby of Choctaw Indians residing in the nation
and states that * * * it had been the practice of tribal officials charged
with any duty in connection writh tribal rolls to withdraw them from the execu
tive offices when necessary and to retain them among their personal effects.
The Commission states its clear conviction to be —
* * * That there had never, prior to the approval of the act of Congress of June
10, 1890, been any rolls of the citizens of the Choctaw and Chickasaw nations which had
heen ratified and confirmed by the legislative bodies of these two nations or had received
the approval of the chief executives. It is a matter of general information in said nations
that the rolls made prior to that time were merely census rolls made up separately accord
ing to counties and districts by individual census takers in such counties and districts
and which were never brought together or consolidated so as to form a complete roll of
tribal members.
The Commission concludes by stating that as to Choctaw applicants its
future findings of tribal recognition will include the rolls of 1885 and 189(5
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 159
censuses, and 1898 leased district payment; as to Chickasavvs the 1878 annuity
(only partial), 1893 leased district, and 1896 census rolls.
There is no evidence in the record before me to show whether applicant's
parents, or either of them, were married in conformity with the tribal laws
governing their respective intermarriages with their former Indian spouses, nor
can such fact be certainly inferred as having been satisfactorily proved. The
decision may have been based upon either the supposed finality of her rejection
by the Commission in 1896 without appeal therefrom, or upon the lack of
identification of her name upon the rolls in possession of the Commission.
If the applicant's parents, or either of them, were married to their former
Indian spouses in conformity to law, they were, or such one of them was, at
her birth a citizen by intermarriage by force of Article XXXVIII of the treaty
of 18(56 (14 Stat., 779), in Indian allegiance, and the applicant was born to such
allegiance and entitled to recognition and enrollment, if a white child without
Indian blood can be. For the purposes of this opinion, I assume that both of
applicant's parents were married to their former Indian spouses in strict con
formity to Indian law and were citizens by intermarriage in the Choctaw and
Chickasaw nations respectively, and that they have been, or are, under the
practice of the Commission as shown in its report of December 31, 1901, supra,
entitled to be and will be enrolled. The question presented is thus reduced to a
single one, viz : Is the applicant barred of her clear birthright by the adverse
erroneous decision of the Commission in 1896?
Under the act of June 10, 1896, supra, the Commission were —
to hear uiid determine the application of all persons who may apply to them for citizen
ship in any of said nations, and after such hearing they shall determine the right of such
applicant to be so admitted and enrolled : * * * That in determining all such
applications said Commission shall respect all laws of the several nations or tribes,
not inconsistent with the laws of the United States, and all treaties with either of said
nations or tribes, and shall give due force and effect to the rolls, usages, and custom;,
of each of said nations or tribes : And provided further, That the rolls of citizenship
of the several tribes as now existing are hereby confirmed, and any person who shall
claim to be entitled to be added to said rolls as a citizen of either of said tribes and
whose right thereto has either been denied or not acted upon, or any citizen who may
within three months from and after the passage of this act desire such citizenship, maj
apply to the legally constituted court or committee designated by the several tribes
for such citizenship, and such court or committee shall determine such application
within thirty days from the date thereof. * * * The rolls so prepared by thorn
(the Commission) shall be hereafter held and considered to be the true and correct tolls
of persons entitled to the rights of citizenship in said several tribes : Provided, That if
the tribe or any person be aggrieved with the decision of the tribal authorities or the
Commission provided for in this act, it or he may appeal from such decision to the
United States district court: Provided, however. That the appeal shall be taken within
sixty days, and the judgment of the court shall be final.
That the said Commission, after the expiration of six months, shall cause a complete
roll of citizenship of each of said nations to be made up from their records, and add
thereto the names of citizens whose right may be conferred under this act, and said rolls
shall be, and are hereby, made rolls of citizenship of said nations or tribes, subject, how
ever, to the determination of the United States courts, as provided herein.
The Commission is hereby required to file the lists of members as they finally approve
them with the Commissioner of Indian Affairs to remain there for use as the final judg
ment of the duly constituted authorities.
These powers were to admit to citizenship persons claiming such right whose
right was denied or not recognized by the tribal authorities. The tribal rolls
were confirmed, and the Commission was required to give due force and effect
to the rolls, usages, customs, and laws of the tribes not inconsistent with the
treaties with the United States and its laws. The Commission had no authority
to purge the rolls nor deny citizenship to those entitled thereto under treaties
and laws of the United States, or under Indian laws, usages, and customs not
inconsistent therewith. Beyond admitting persons to citizenship whose rights
were not recognized by the tribal authorities, their power was merely to regis
ter and enter upon their roll those whose right was recognized by the rolls, laws,
usages, and customs of the tribes. It is the settled rule of the Department by
the decision in the Wiley Adams and cases following it that action of the C->m
mission under this act excluding enrolled persons and action of the courts upon
appeals from the Commission in such cases was and is void for want of jurisdic
tion of the subject-matter.
The next act was that of June 7, 1897 (30 Stat, 83-84), which defined " rolls
of citizenship " in the act of 1896, supra, to mean the last authenticated rolls of
each tribe which have been approved by the council of the nation, and the de
scendants 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 courts thereof, or the Commission. All other names
were open to scrutiny of the Commission, and persons borne on other than the
160 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
authenticated tribal roll might be denied enrollment, such person having right
of appeal to the courts.
By this act descendants of persons on the roll were defined and regarded as on
the roll whereon their parents were found, whether themselves actually on sucii
roll or not and though born after the roll was made.
The next act was that of June 28, 1898 (30 Stat, 405, 502), which provides :
Said Commission is authorized and directed to make correct rolls of the citizens by
blood of all tUe other tribes, eliminating from the tribal rolls such names as may have
been placed thereon by fraud or without authority of law, enrolling such only as may
have lawful right thereto, and their descendants born since such rolls were made, with
such intermarried white persons as may be entitled to Choctaw and Chickasaw citizenship
under the treaties and laws of said tribes.
This was the first act limiting the effect of a parent's enrollment to enure to
the benefit only of issue afterborn. This act also, as to the Choctaw and Chick
asaw nations, dispensed with necessity of proof of tribal enrollment or recog
nition of an intermarried white person. The reason is apparent upon examina
tion of the treaties with the several Five Civilized Tribes. In the treaty with
the Choctaws and Chickasaws alone were intermarried whites given Indian
citizenship. The foregoing provision in the act of June 28, .1898, was pursuant
to Article XXXVIII of the treaty of 180(5, supra, and made proof of marriage
to a recognized and enrolled Choctaw or Chickasaw citizen in conformity with
Indian law sufficient proof of the right of the intermarried citizen. The inter
married citizen is regarded as enrolled at the date of and by virtue of the inter
marriage. This justifies the practice of the Commission stated in its report
of December 31, 1901, supra.
The child, Mary Elizabeth, was therefore born to Choctaw allegiance by virtue
of her father's citizenship and to Chickasaw allegiance by virtue of her
mother's. No admission to citizenship was necessary to confer the right upon
her. All the power the Commission had was to ascertain that she was born
to such allegiance, and that fact being shown, they were as without jurisdiction
or power to deny her enrollment as they were to deny enrollment of her parents.
The act of so doing was no bar to consideration of her case when again pre
sented. The records of the intermarriage of her parents to their former Indian
spouses were, under this act, equivalent of and stood as to them respectively as
their " enrollment," and she being thereafter born to them is within the words
" descendants born since such rolls were made " — i. e., since that which as to
each of her parents stands as the equivalent of a roll.
The next act is that of May 31, 1900 (31 Stat, 221, 236), which provides:
That said Commission shall continue to exercise all authority heretofore conferred upon
it by law. But it shall not receive, consider, or make any record of any application of
any person for enrollment as a member of any tribe in Indian Territory who has not
been a recognized citizen thereof and duly and lawfully enrolled or admitted as such,
and its refusal of such applications shall be final when approved by the Secretary of the
Interior.
This is followed by the act of July 1, 1902 (32 Stat., 641, 646), which, by sec
tion 27, requires the Commission to proceed in strict accordance with the acts
of June 28, 1898, and May 31, 1900, supra, with an exception not here material,
which nowise affects the case.
As above shown, the applicant was, within the meaning and letter of the law,
on the roll, being born to enrolled parents. Neither the Commission nor the
court had, therefore, any jurisdiction to deny her enrollment, and no judge of
the court in assuming a jurisdiction that it did not have can bar her of right,
unless she is barred by lack of Indian blood.
This brings me to the question whether the child of white parents, citizens by
intermarriage, without qualification of Indian blood, is entitled to enrollment.
In the case of E. H. Bounds et al. v. the Choctaw and Chickasaw nations, the
Choctaw and Chickasaw citizenship court had before it a case wherein Bounds,
a white intermarried Chickasaw, his second wife a white noncitizen, and their
children were applicants for enrollment. It held him entitled, his wife not
entitled, and the children not entitled. The right of Mr. Bounds was expressly
based upon Article XXXVIII of the treaty of 1866, supra. The court, referring
to the title conveyed to the Choctaw Nation under Article II of the treaty of
September 27, 1830 (7 Stat, 333), and Article XXXVIII of the treaty of 1866,
supra, said :
The grant of the Government is to the Indians and their descendants and heirs, in apt.
and pointed language, in the patent and treaties before that. If this treaty designed to
give intermarried, not only white persons and adopted white persons, but also their
LAWS AFFECTING THE FIVE CIVILIZED TKIBES. 161
purely white descendants, any rights, why did it not declare them in 1866, in that
treaty, that such further rights as claimed now were conferred by adding the words
"and their heirs and descendants?" * * *
To put the interpretation asked for on this thirty-eighth section would be, in
my opinion, to convict the Government of the United States of using a deception
on these tribes and having an intention, without their understanding it, to bind
them to turn a large part of the lands of themselves, and their descendants over
to white people and their heirs. It was liberal enough to protect the individual
white persons, adopted or intermarried, and the child of an Indian spouse
would be protected without reference to whether its father or mother was
white, so only one was white ; and to say that the Indians intended to give the
children of parents both white the same rights as children of Indian blood on
one side had, or all Indians had, is to me absolutely incomprehensible and, in the
light of history, treaties, customs, traditions, and facts, unthinkable.
*******
There is no mention whatever of the white persons' descendants' rights. It
was, of course, still supposed that the blood of the Indian spouse, man or woman,
would protect the rights of the children and descendants of that marriage, and
that being so, the fact that no rights whatever were explicitly given to their
descendants shows conclusively that none except those who had Indian blood
were thought of or alluded to.
* * * It is not said that his or her " descendants " were to be " deemed "
citizens. That word was ex industria left out and excluded from the treaty
of 1866.
*******
By the thirty -eighth section of the treaty of 1866, the rights of intermarried
persons were definitely fixed and determined, and this section applies to all inter
married white persons who had up to that time intermarried with the Choctaws
and Chickasaws or who married thereafter. Whatever the rights of any inter
married white person may have been before that time, they were fixed then and
have never been changed since. * * *
And as the right then given was purely given to the particular person thus
" having intermarried," etc., it can not reasonably be held, under any rule of con
struction applicable to Indian treaties, that the Indians of the United States
Government understood or intended that any but this restricted right in favor
of an individual of a particular class was ever given. The word " descendants "
is not used ; the words " wife or husband " are not used, even by implication,
as referring to any but parties to the original marriage between white persons
and Choctaw and Chickasaw Indians, either male or female.
On the other hand, the United States court, central district, Indian Territory,
in the case of F. R. Robinson v. The Choctaw Nation, had before it a like case,
wherein Robinson, a white intermarried citizen, as a second wife married a
white noncitizen. That there was offspring of such marriage is implied. The
court held :
The treaty makes every white man who may marry a Choctaw or Chickasaw woman a
citizen — to use the language of the last words of article 38, above set out, " in all
respects as though ho was a native Choctaw or Chickasaw." By this provision of the
treaty there is no difference between a citizen by virtue of his marriage and a native
Choctaw. They are to enjoy equally and alike all of the benefits of Choctaw citizenship,
as well as share the burdens. * * *
Now, unless a marriage of a native Indian to a white woman, after his Indian wife
shall -have died, has the same effect on him — that is, decitizenizes him, divests him of
all title to the Choctaw lands, and deprives him of the right to live in the country — the
statute works an inequality, and the white man does not enjoy the same privileges as the
native Indian. The citizenship is different, and the rights flowing therefrom are not the
same. The one may do an act that the other can not do ; the one has a privilege, that of
marrying a white woman, that the other does not enjoy. The important right of un
restricted selection of a wife enjoyed by the native Indian is denied the white citizen by
I therefore find that the claimant is entitled to be enrolled. I hold also that
the offspring of such a marriage would be entitled to be enrolled; the father
being a lawful citizen, his children would follow his citizenship, and by inheri
tance take any property rights he may have acquired thereby.
It does not detract from the persuasive force of the reasoning that the case
may have been decided upon a record showing notice to but one of the nations.
It was a judicial construction of the law pronounced by a competent court in a
controversy heard. It was affirmed as to the constitutionality of the law under
which the judgment was pronounced in Choctaw Nation v. Robinson, and Chicka-
33753—06 M 11
162 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
saw Nation v. Robinson (174 U. S., 445, 472, 473). There are this diverse judi
cial constructions of the law.
Allegiance of birth is obtained by succession to the allegiance of the parent.
This is the fundamental and universal law of all organized societies or States,
and essential to their continued existence as such. The law is varied only in
form as to which parent, where there is diversity of parental allegiance, lixes
the inheritance of allegiance, or whether the child in such case may elect to
take the allegiance of one or the other parent. In no State, so far as I am
aware, has it ever been held that the offspring of a citizen is born stranger to
the parents' allegiance, outcast from the parents' civil state, citizen of no other,
merely because the parent was born to, and for some of part of its life owed, a
foreign allegiance. It is not a parent's race or blood that gives citizenship to
the child, but the parents' status of citizenship at the child's birth.
In the case of Bounds the citizenship court based its reasoning upon the
terms of the patent and treaty of 1830 in granting the lands " to the Indians
and their descendants." The grant was not " to the Indians," but " to the
Choctaw Nation," " to them and their descendants." Nothing in the grant indi
cated a limitation to Choctaws by blood descent. Article IV of the treaty
guaranteed the Choctaw Nation self-government under its own laws, which
included their own body of unwritten law, custom, as well as legislative statutes.
It has been the immemorial custom of all the Indian "tribes to admit others than
of their own blood to rights of citizenship by marriage and adoption. It was
unnecessary to write " descendants " in Article XXXVIII of the treaty of 186(3.
It followed of necessity that the offspring of a citizen is itself a citizen. " De
scendants " is used nowhere in the treaty of 18GG, except in Article III, giving
descendants of former Choctaw slaves the right of citizenship. If citizenship
be not heritable except the word " descendant " is used, then by this argument the
great body of the present .supposed Choctaw citizens is without right, as most of
those living April 28, 18GG, are dead, most of those now living having been since
born, and their only right to citizenship is their descent from citizens then living,
but such right is not given by the treaty. It depends on the universal law of all
States that descent from a citizen vests citizenship, if not under some law
abjured or forfeited.
I am, therefore, of opinion that the applicant upon the facts stated was born
to allegiance of either the Choctaw or the Chickasaw nation, as might be deter
mined under the act of June 28, 1898 (sec. 21, 30 Stat, 503), and that as she
was in legal effect on the rolls, the Commission in 1890 had no jurisdiction to
deny her enrollment, and their assuming so to do was in excess of power and
void, so that her failure to appeal from that decision is no bar to her right ;
that she, being born after the making of those record evidences of intermarriage
of her parents that are the equivalent of a roll, is within the spirit, intent, and
letter of the act of June 28, 1898, their descendants "born since such rolls were
made," and that the Commission should consider and adjudicate her case upon
the merits.
Very respectfully, FRANK L. CAMBPELL,
Assistant Attorney-General.
Approved March 24, 1905.
E. A. HITCHCOCK,
Secretary.
OFFICE OF THE SECRETARY,
Washington, D. C., December 13, 1005.
COMMISSIONER TO THE FIVE CIVILIZED TRIBES,
Muscoyec, Ind. T.
SIR : There is inclosed herewith a copy of the opinion of the Assistant Attor
ney-General of December 8, 1905, in the Choctaw enrollment case of Mary Eliza
beth Martin, approved on the same day, in which he adheres to his former
opinion.
Referring to your letter of September 1, 1905, relative to the case of Sarah
Archerd, you are advised that the suspension ordered in that case is removed
in view of said opinion.
Argument in the Archerd case was filed by Charles Von Weise, of Ardmore,
Ind. T., with his letter of August 22, 1905. Advise him of the action taken.
Respectfully,
THOS. RYAN,
First Assistant Secretary.
LAWS AFFECTING THE FIVE CIVILIZED TKIBES. 163
OFFICE OF THE ASSISTANT ATTORNEY-GENERAL,
Washington, D. (7., December 8, 1!)0~>.
The SECRETARY OF THE INTERIOR.
SIR : I received by reference of April 22, 1905, " for consideration," the motion
of counsel for the Choctaw and Chickasaw nations for reconsideration of my
opinion of March 25, 1905, in the case of Mary Elizabeth Martin, applicant for
enrollment as a citizen of the Choctaw Nation. (I. T. D., 11856-1901, etc.) The
assignment of error is general, " that the conclusions of law therein are erro
neous and should not stand." Counsel have been orally heard, and this general
assignment in oral argument was limited to two specific contentions, viz :
1. That denial of her application by the Commission to the Five Civilized
Tribes under the act of June 10, 1896, without appeal therefrom, is final and
conclusive against consideration of her case by the Commission under later acts
continuing its powers,
2. That the child of an intermarried white person, or of two such parents, is
not entitled to enrollment.
Under the first assignment the oral argument is that, as no tribal rolls ex
isted of such character as to be confirmed within the meaning of the acts of
June 10, 1896, arid June 7, 1897 (29 Stat, 321, 329, and 30 Stat, 83, 84), her
case was within the jurisdiction of the Commission in 1896. The principal
chief of the Choctaw Nation, in a letter of July 22, 1897, to the Commission to
the Five Civilized Tribes, declared that there is " only one authenticated roll
of citizens and that is the one approved by the legislature in 1896," and as
this roll was compiled during or after September, 1896, it did not exist June
10, 1896, and was not confirmed.
The existence or not of ah authenticated roll June 10, 1896, to be confirmed
is immaterial to the present case, as the applicant is not found on any tribal
roll, nor does it appear that the name of either parent is found on any roll.
The record merely show's that they are intermarried whites. The citizenship
court, the United States courts for Indian Territory, the Commission to the
Five Civilized Tribes, and the Department — all the tribunals having jurisdic
tion to determine the question — regard the record of intermarriage of a white
person to a Choctaw citizen, under Article XXXVIII of the treaty of 1866 (14
Stat., 769, 779), as having the effect and being the equivalent of an enrollment
upon a confirmed roll within the intent of the act of June 10, 1896. This was
conceded by counsel for the nation, in the case of Wiley Adams, decided
March 20, 1903, and of Benjamin J. Vaughn and children. (Op. Mar. 24,
1905.) The same rule applies to the parents of the applicant. She was
born after what was in legal intenduient the enrollment of her parents upon a
confirmed roll. She was not only a descendant of enrolled members of the
Choctaw Nation and entitled to be enrolled under the act of June 10, 1896, but
was also a descendant of such parents born after their enrollment, and was
thus within the provisions of the act of June 28, 1898. (30 Stat., 495, 502.)
Counsel for the nation seem to regard this as a mere refinement of reasoning,
though they did not so regard it in the case of Wiley Adams, or in that of Benja
min J. Vaughn. In the latter case Vaughn and his children, as he was an
intermarried white person, were held not barred by Vaughn's failure to appeal
or obtain certification of his case to the citizenship court after being deprived
by its judgment in the test case of a favorable judgment rendered by the Com
mission and the United States court under the act of 1896. The ground for want
of jurisdiction in the two cases is the same. If the opinion in Vaughn's case,
which counsel have not excepted to, be correct, the opinion in the present case
(so far as affected by this question) is also correct. As to this question they
must inevitably stand or fall together. If the Commission in 1896 had juris
diction' over this applicant, it also had over Vaughn and his children, and all
must be excluded. If Vaughn was not barred, this applicant is not.
Counsel in argument say :
Is it not a most interesting, not to say extraordinary, spectacle that the Government's
own tribunal, at this time the Assistant Attorney-General, is endeavoring by strained and
forced construction to oust the jurisdiction of a tribunal which derives its power from
the same source, the great Government of the United States, and to give dignity and
finality to alleged acts of the tribes, which according to the views of all who are well
informed are so irregular and inaccurate, not to say in many instances corrupt and dis
honest, as to merit the condemnation and rejection of all.
All of this argument that is applicable to the record of the present case is the
not decorously veiled sneer. No act of the tribe affects the present case, except
Article XXXVIII of the treaty of 1866, nor is there a " forced construction " or
164 LAWS AFFECTING THE FIVE CIVILIZED TKIBES.
different rule applied to oust jurisdiction of the Commission in 189G of this
applicant than that the same day applied in the case of Vaughn, to which counsel
have not excepted. I therefore am of opinion, so far as the question of juris
diction of the Commission in 1896 is concerned, that it was without jurisdiction
to deny her enrollment and that the failure to appeal from its judgment does not
prevent the consideration of her case upon its merits. The second question is
therefore the decisive one.
In my former opinion herein it was said that " allegiance of birth is obtained
by succession to the allegiance of the parent." I am now of opinion that the
rule so stated is accurate when considered in the light of the particular facts
in the applicant's case, viz, that by Article XXXVIII of the treaty the parents
by their intermarriage were accorded all the rights and were subject to all the
liabilities "as though he (or she) was a native Choctaw," and continued to the
applicant's birth to be resident within the Choctaw Nation. I know of no
exception to such rule, and certainly counsel have cited no adjudication wherein
the child of a citizen residing within the jurisdiction to which his allegiance is
due is held not to be a citizen by birth. That covers the present case. But there
may be allegiance of birth other than the allegiance of the parent. Thus, the
child of an alien, whose parents can not be naturalized in the country wherein
they reside, may be born to the allegiance of that country and to all the rights
of native citizens. Wong Kim Ark (169 U. S., 649) ; State v. Ah Chew (16
Nev., 50, 58) ; Look Tin Sing (10 Sawyer, 353) ; Gee Fork Sing v. United States
(7 U. S., App., 27). But the child born to a citizen residing in the jurisdiction
having full rights of citizenship is necessarily born to the allegiance of the
parent, unless some provision of the constitution or laws of the Choctaw Nation
prevents, and no such provision cited by counsel or found by me does so provide.
I therefore adhere to the opinion hereinbefore rendered.
Very respectfully,
FRANK L. CAMPBELL,
Assistant Attorney-General.
Approved December 8, 1905.
E. A. HITCHCOCK,
Secretary.
OFFICE OF THE SECRETARY.
Washington, D. C., April £//, .1906.
The COMMISSIONER TO THE FIVE CIVILIZED TRIBES,
Muscogee, Ind. T.
SIR: On March 25, 1903, the Commission to the Five Civilized Tribes for
warded to the Department the record in the matter of the application of Mary
Elizabeth Martin for enrollment as a citizen of the Chickasaw Nation, together
with its decision of the same date denying her enrollment as such.
On June 1, 1903, the Indian Office forwarded the record in said case, and
after quoting certain Choctaw and Chickasaw acts in connection with article 38
of the treaty between the United States and the Choctaw and Chickasaw
nations of April 28, 1866 (14 Stat, 769), expressed the opinion that if either
of the parents of this minor applicant is recognized as a citizen of the Choctaw
or Chickasaw Nation it is possible that she may be entitled to enrollment. In
connection with this view the recommendation was made that the case be
remanded to the Commission with directions to take further evidence and to
advise the Department whether the name of either of the parents of the appli
cant appears on the Choctaw or Chickasaw rolls made by the Commission or the
tribal authorities.
On June 8, 1903, following the recommendation of the Indian Office, the
Department returned the record to the Commission in order that further testi
mony might be taken and the case be readjudicated. The record was returned
to the Department with Indian Office letter of November 19, 1904, wherein it
was pointed out that the father of Mary Elizabeth Martin was a recognized
citizen of the Choctaw Nation, and that her mother was a recognized citizen
of the Chickasaw Nation, and the recommendation was made that the applicant
be enrolled as a citizen of the Chickasaw Nation, the same provisions of law
being quoted as referred to above, and reference being made to a decision of the
United States court for the central district of Indian Territory in the Robinson
case.
All the papers in the case, including a copy of the Indian Office letter last
referred to, were submitted to the Assistant Attorney-General for this Depart-
LAWS AFFECTING THE FIVE CIVILIZED TKIBES. 165
ment. In an opinion rendered by him March 24, 1905, the Department was
advised in part as follows :
There is no evidence in the record before me to show whether applicant's parents, or
either of them, were married in conformity with the tribal laws governing their respec
tive intermarriages with their former Indian spouses, nor can such fact be certainly
inferred as having been satisfactorily proved. * * * If the applicant's parents, or
either of them, were married to their former Indian spouses in conformity to law, they
were, or such one of them was. at her birth a citizen by intermarriage by force of
Article XXXVIII of the treaty of 1866 (14 Stats., 779), in Indian allegiance, and the
applicant was born to such allegiance and entitled to recognition and enrollment, if a
white child without Indian blood can be. * * * The Commission in 1896 had no
jurisdiction to deny her enrollment, and their assuming so to do was in excess of power
and void, so that her failure to appeal from that decision is no bar to her right. * * *
The Commission should consider and adjudicate her case upon the merits.
Accordingly, on March 30, 1905, following this opinion, the record was
returned to the Commission to be readjudicated in the light of such additional
testimony as might be taken.
On April 21, 1905, a motion was filed by the attorneys for the Choctaw and
Chickasaw nations on behalf of said nations for a reconsideration of said
opinion. This motion was referred to the Assistant Attorney-General, and in
a second opinion relating to the case, dated and approved December 8, 1905, he
adhered to his former opinion. A copy of this second opinion was furnished
you under date of December 13, 1905.
The Department is now in receipt of a report relating to the case, furnished
under date of February 24, 1906, by the Attorney-General to the President.
In said report, after referring to a memorandum prepared by Mr. Lawrence, of
the Department of Justice, in which the view was expressed relative to article
38 of the treaty of 1800, " that the fair and reasonable construction of the
treaty is that a white person, by intermarriage with an Indian, acquires only
personally the rights and privileges of a citizen by blood, and not the capacity
of conferring citizenship upon others," the Attorney-General said : " I do not
think that the question is free from doubt, but I am convinced by Mr. Law
rence's reasoning, which I have carefully considered, that his interpretation
is the better one, and certainly it leads to much more just results."
This report was inclosed in a letter to the Department, dated February 27,
190G, by the Secretary to the President, in which he wrote :
In the President's judgment, without any reference to the act of Congress, it is per
fectly clear that equity demands that the son of white parents who has no Indian blood
in him, even though one of those parents may have been adopted into a tribe, should not
be treated as an Indian.
In view of the foregoing, my approval of the opinions of the Assistant At
torney-General for this Department of March 24 and December 8, 1905, relating
to the Mary Elizabeth Martin case, is revoked, and the decision of the Com
mission to the Five Civilized Tribes, dated March 25, 1903, is, in so far as it
denies her enrollment, hereby affirmed.
In connection with this case you are referred to departmental letter of March
8, 1900, directing the suspension of all enrollment and allotment proceedings in
the Mary Elizabeth Martin case and in cases similar thereto.
Respectfully,
E. A. HITCHCOCK, Secretary.
OFFICE OF THE SECRETARY,
Washington, D. (7., February 25, 1905.
COMMISSION TO THE FIVE CIVILIZED TRIBES,
Muscogee, Ind T.
GENTLEMEN : November 14, 1904, you transmitted report of proceedings had
and additional evidence taken in the matter of the applications of Joe and
Dillard Perry for their enrollment as citizens by blood of the Chickasaw Nation
instead of Chickasaw freedmen.
November 2G, 1904 (Land 80819), the Acting Commissioner of Indian Affairs,
reporting in the matter, recommended that Joe and Dillard Perry be declared
to be citizens by blood of the Chickasaw Nation, and that the Department direct
the transfer of their names from the roll of Chickasaw freedmen to the roll of
Chickasaws by blood. A copy of said letter is inclosed.
January 20, 1905, the Department referred your report to the Assistant At
torney-General for this Department for his opinion as to whether Joe and
Dillard Perry were entitled to enrollment as citizens by blood of the Chickasaw
166 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
Nation, and in an opinion therein, rendered February 21, 1905, approved by the
Secretary of the Interior the same day, a copy of which opinion is herewith in
closed, the Assistant Attorney-General held that Joe and Dillard Perry are en
titled to enrollment as citizens by blood of the Chickasaw Nation.
In accordance with said opinion the Department holds that said applicants
are entitled to enrollment as citizens by blood of the Chickasaw Nation, and you
are directed to transfer the names of Joe Perry and Dillard Perry from the
Chickasaw freedmen roll to the roll of Chickasaws by blood and cancel their
enrollment as Chickasaw freedmen.
Respectfully, THOS. RYAN, Acting Secretary.
OFFICE OF THE ASSISTANT ATTORNEY-GENERAL,
Washington, D. (7., February 21, 1905.
The SECRETARY OF THE INTERIOR.
SIR: I received by reference of January 20, 1905, with request for opinion
thereon, the record in the cases of Joe and Dillard Perry for enrollment as
citizens by blood of the Chickasaw Nation. In connection therewith my atten
tion is directed to the decisions of the Choctaw and Chickasaw citizenship court
in the cases of Molsie Butler and T. J. Minor.
Joe and Dillard Perry were born in the Chickasaw country of Eliza Perry,
who was a Chickasaw freedwoman, shown by the evidence to be one-half negro,
one-quarter white, and one-quarter Indian blood, born in the Choctaw country
about 1874. It is not shown whether her parents were married, but both were
freedmen, and her father one-half Indian, her mother one-half white. As both
parents were of the freedmen class, whether they were married or not is imma
terial. Eliza first married one Mose James, a Creek, without license, but by a
clergyman, as she describes it, " out of the Bible " — unlicensed marriage by
religious ceremony. lie deserted her two months later, and two years there
after, hearing nothing from him, not being divorced, she took up with Charley
Perry, a recognized Chickasaw citizen by blood, and they cohabited as husband
and wife until after Joe was born. They were arrested for unlawful cohabita
tion and taken to Paris, Tex., where they were advised to marry, and did so.
and the prosecution was dropped. She informed the man who performed the
second ceremony of the former marriage ; he, learning from her the circum
stances, was of opinion that it was invalid, proceeded with the ceremony. They
returned to their home, were recognized in the neighborhood as husband and
wife, and the second son was born. Perry spoke of Eliza as his wife, of the
boys as his children, and they continued to cohabit to his death, in 1890. If the
proportions of blood are rightly given, the applicants are five-eighths Chickasaw,
one-quarter negro, and one-eighth white blood. The children were not recog
nized by the father's relatives. Their maternal grandmother applied for and
obtained their enrollment as Chickasaw freedmen, which was approved Decem
ber 12, 1902, and allotments were taken for them as such. In August, 1904,
application was made to transfer them to the roll of Chickasaws by blood, and
September 14, 1904, the Department instructed the Commission to the Five
Civilized Tribes to allow them thirty days to adduce evidence. Notice was
given to both parties, and at a hearing in which both participated the above
facts were elicited. Upon the facts there seems to be no controversy. Counsel
on both sides have submitted briefs.
The contentions of counsel seem to be, on part of the applicants, that the
marriage of applicants' parents is well proven, and that the applicants have
legitimate right to succession to their father, a Chickasaw citizen by blood;
and, on part of the nation, that the marriage is not well proved, but that,
were the proof sufficient, intermarriages of negroes and Chickasaws are pro
hibited and void. Molsie Butler's case is cited, claimed to be identical, and is
relied upon.
In that case the facts, as shown by a certified copy of the opinion before me,
were that Molsie was born of the intermarriage, after the war of the rebellion,
of Salina Mahardy, a former negro slave, and Aleck Foster, a Choctaw Indian,
when no law forbade such intermarriage. Molsie was thus half negro and halt
Choctaw. The court held that —
The lands embraced in what is known as the Choctaw and Chickasaw nation, in the
Indian Territory, were ceded to the members of these two tribes and their descendants
by the United States Government. * * * No persons except those mentioned in the
treaty were to take any part of the^e lands ; but there is a provision in the thirty-eighth
LAWS AFFECTING THE FIVE CIVILIZED TKIBES. 167
article of the treaty of I860 conferring rights upon white people who have married Choc-
taw or Chickasaw Indians, but there is no provision in any treaty with these trihes that I
have heen ahle to find conferring any rights upon colored persons or their descendants
who may have married an Indian.
Ill Minor's case the court found :
The evidence shows that Lucy Seely, the plaintiff's grandmother, was part Chickasaw
and part negro — that her grandfather was a full-blood Chickasaw. Consequently Sarah
Seely, their daughter, and mother of the plaintiff, was more than half Chickasaw ; that
Sarah's husband, and plaintiff's father, T. .T. Minor, sr., is a jvhite man. Therefore the
plaintiff is one-half white and more than one-quarter Chickasaw. There is no proof
that his mother was ever held as a slave, and the evidence is not conclusive that her
grandmother was ever so held. * * *
Tliere is no proof in this case that Bob Seely and Lucy were ever married,
but the testimony shows they lived together as husband and wife. It is con
tended by the nations that the marriage at best was but a common-law marriage,
and no common-law marriage was recognized in the Indian Territory until
1889, which was long after the relation of these people was terminated by the
death of Bob Seely. Taking this to be true, then, if there was no marriage the
children of Lucy were illegitimate, begotten by a full-blood Choctaw Indian.
This court has held in a case (Althea Paul et al. v. Choctaw and Chickasaw
Nations) that when there was a natural child begotten by a Chickasaw Indian
on a white woman the child was entitled to enrollment as a member of the tribe
by reason of the Chickasaw blood of his father.
This court is asked to follow in this case the decision heretofore rendered in
the case of Molsie Butler v. The Choctaw and Chickasaw Nations, in which we
held that an applicant for citizenship whose father was a Choctaw Indian and
whose mother was a negro and until emancipation was a slave, was not
entitled to citizenship or enrollment. That case and this are not parallel.
There was no claim or proof of Indian blood on the part of the mother. She
was beyond question and entirely a negro and unquestionably had been a slave.
Here there is testimony that the mother was possessed of some Chickasaw
blood, and it is not proven she was a slave. The legal presumption, she
having some Indian blood, is in favor of her freedom, and the burden would
rest on the defendants to show that the contrary was true, which they have
not conclusively done.
The blood of T. J. Minor, jr., was thus shown to be one-half white, one-eighth
negro, and three-eighths Choctaw. The distinction is not made on the quan
tum of negro, white, or Choctaw blood, but on the fact that Molsie Butler's
negro descent was from a slave grandmother, while Minor's was presumably
from a free negro woman. As Molsie was one-half Choctaw and half freedman,
born of a legal marriage, the disqualifying contamination of her greater quan
tum of Choctaw blood was either due to the former servitude of her mother, or
else the higher merit of Minor's three-sixteenths less quantum of Indian blood
was due to white infusion by intermarriage. But the white intermarriage could
work no rehabilitation of Choctaw blood in one of partial negro blood unless
the mixed-blood spouse was entitled to be considered a Choctaw. The con
tamination of the greater quantum of Choctaw blood must therefore have been
considered as due to the former servitude of Molsie's grandmother, not to the
quantum of negro blood. This is the necessary .deduction from an analysis of
the two cases. No such fact is shown in the present record. There is no proof
that Eliza's mother was ever a slave, and the case is therefore identical with
Minor's, except as to the quantums of the various bloods, the applicants here
having more Indian, less white, and one-eighth more negro blood. The logical
basis of the Butler and Minor decisions being, as shown, the contamination
of servile descent, not of negro blood, and the meritorious blood being Indian,
the present case, if decided by the rule of those cases alone, entitles the appli
cants to enrollment, as they have more Indian blood than Minor, and are not
shown to have servile descent.
It is proper, however, here to notice that I am unable to see any basis in the
treaty of 18(>G or in the legislation of Congress that justifies the distinction
made that descent from a former slave negro works any greater contamination
of blood than descent from a free negro, and can not but regard the two deci
sions as irreconcilably at variance, the distinction drawn by the court un
founded, and the Butler case so shaken by that in the Minor case as to be of
no weight or authority for decision of other cases, even though it may conclude
the particular parties to the record.
As to the other point, I deem the marriage sufficiently proven. By section
31 of the act of May 2, 1890 (2G Stat, 81, 94r-95), certain of the laws of
168 LAWS AFFECTING THE FIVE CIVILIZED TKIBES.
Arkansas, and among others the laws relating to descents and distributions and
to evidence and to marriages, chapters 49, 59, 103, as shown in Mansfield's
Digest of 1884, were extended to Indian Territory, saving that (ib., 98) Indian
marriages theretofore contracted in accordance with tribal laws or customs
were declared valid and their issue made legitimate. As to evidence or proof
of marriage, it was held in Kelly's Heirs v. McGuire (15 Ark., 555) that —
Reputation or hearsay is admissible in all matters of pedigree ; and so the repeated
declarations of the father that he had married, and by the marriage had two children,
naming them ; his recognition of them as his legitimate children, their recognition of him
as their father, and of each other as brother and sister ; and the fact that the marriage
and legitimacy of the children were known and spoken of in the family are sufficient to
prove the marriage of the father and the legitimacy of the children.
It would not, however, be permissible by reputation to prove a marriage pro
hibited by law and incapable by any proof to be rendered valid. March 16,
1858, the Chickasaw legislature prohibited any person other than a negro from
" cohabiting with a negro," imposing penalties of fine and imprisonment for such
offense. Whether this by implication should be construed to prohibit and
invalidate such an intermarriage, or whether it even subjected one contracting
such a marriage to the penalty, need not here be considered, as it imposed no
disability of blood upon the innocent issue of such cohabitation or of such
marriage. A statute of this kind can not by mere implication or construction
be extended to impose upon innocent issue a contamination of blood not expressly
imposed by the statute.
The treaty right was to the Choctaw and Chickasaw nations and their " de
scendants." Descendants, as pointed out in the case of James W. Shirley, is
a term of wider significance than heirs, or legitimate issue, and includes those
springing from an ancestor, whether legitimate issue or not. The descent of the
applicants is fully and indubitably shown to be from Charles Perry, a Chicka
saw by blood, recognized by him and born of a union that he and Eliza evidently
regarded as a lawful one, openly avowed, and by the Chickasaw Nation tolerated,
which it did not compel him to abandon, or impose the penalties of its law upon
him for contracting and observing. That law properly enough imposed no
penalty of contamination of blood upon the innocent issue of such union. I am
therefore clearly of the* opinion that applicants are entitled to be transferred to
the roll of Chickasaws by blood.
Very respectfully, FRANK L. CAMPBELL,
Assistant Attorney -General.
Approved February 21, 1905.
E. A. HITCHCOCK.
Seeretary.
OFFICE OF THE SECRETARY,
Washington, D. C., November 18, 1905.
COMMISSIONER TO THE FIVE CIVILIZED TRIUES.
SIR : On April 21, 1905, there was filed, on behalf of the Choctaw and Chicka
saw Nations, a motion for reconsideration of the opinion of the Assistant Attor
ney-General for this Department of February 21, 1905, relative to the enrollment
of Joe and Dillard Perry as citizens by blood of the Chickasaw Nation.
Upon review of said opinion a second opinion was rendered by the Assistant
Attorney-General November 11, 1905, approved by the Department the same day,
to the effect that Joe and Dillard Perry are not entitled to enrollment as citizens
by blood of the Chickasaw Nation. Said opinion is based upon section 34 of
the act of July 1, 1902 (32 Stats., 641, 649).
It is further advised in said opinion that if the allotments of Joe and Dillard
Perry as freedmen have been canceled, such action was erroneous, inasmuch as
they were entitled to hold them until their right to enrollment as citizens was
fully established, and accordingly that their allotments, if canceled, should be
reinstated.
Following this opinion, the decision of the Department of February 25, 1905,
based upon said opinion of February 21, 1905, is hereby rescinded, and you are
directed to restore their names to the rolls of Chickasaw freedmen, and, if their
allotments as Chickasaw freedmen have been canceled, to take such steps as
may be necessary to secure the same to them.
A copy of said opinion of November 11, 1905, is inclosed herewith.
Respectfully,
THOS. RYAN,
First Assistant Secretary.
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 169
OFFICE OF THE ASSISTANT ATTORNEY-GENERAL,
Washington, D. C., November 11, 190").
The SECRETARY OF THE INTERIOR.
SIR : I received by reference of April 22, 1905, " for consideration," the motion
by counsel for the Choctaw and Chickasaw nations for reconsideration of my
opinion of February 21, 1905, in case of Joe and Dillard Perry (I. T. D. 12092-
1904) for enrollment as citizens by blood of the Chickasaw Nation. The motion
is based on a general assignment of error, that " the findings of fact and conclu
sions of law reached are erroneous." Counsel, upon request, have been orally
heard, and the general assignment is in oral argument limited and defined to be
that the application was made too late and is barred by section 34 of the act of
July 1, 1902 (32 Stats., 641, 649), and by the act of May 31, 1900 (31 Stats., 22.
236).
For all purposes of the case as now presented it is conceded that the appli
cants are the children of Eliza Perry, who was one-quarter Indian, one-quarter
white, and one-half negro; or in another part of the evidence one-half white
and one-half negro, a Chickasaw freedman. Their father was Charley Perry,
a recognized Chickasaw citizen by blood, but the record does not show whether
his Chickasaw blood was unmixed. Assuming it to be so, the children were
five-eighths Chickasaw, one-eighth white, and one-quarter negro, or one-half
Chickasaw, one-quarter white, and one-eighth negro. Eliza and Charley co
habited as husband and wife, and Joe was born to them March 20, 1892. After
his birth, in 1892, his parents were married at Paris, Tex., when under arrest
for illicit cohabitation. They returned to the nation and continued to cohabit
as husband and wife until Charley's death, February 20, 1896. Dillard was
born to them May 5, 1894. The father always acknowledged the children as
his own. There is in the record an admission that she was previously married,
without a license, " out of the Bible," by a clergyman, when about 15 years old,
about 1889, to one Mose James, a Creek, who deserted her two months there
after, and, after a lapse of two years without hearing from him, she began
cohabitation with Perry. At one place in her testimony she testified that
James, her first spouse, was living when she married Perry ; in another that
she does not know whether James, at the time she married Perry, was living
or dead. She informed the officer who performed the second marriage of the
first and its circumstances, and he told her that the former one was illegal
for lack of a license, and performed the second marriage ceremony. I have
found no Chickasaw statute, and counsel have cited none, prohibiting marriage
between a Chickasaw and a negro, and the constitution, treaties, and laws of
the Chicksaw Nation, published at Atoka, 1890, appear to contain no such act,
though there are acts requiring record of marriages (p. 76), validating mar
riages irregularly celebrated before October 12, 1876 (p. 78), marriage "by
mutual consent," and those under Choctaw law prior to August 30, 1876 (p.
112), and one of October 19, 1876, amended September 24, 1887, requiring a
license for marriage between a citizen and noncitizen (p. 142). I therefore am
advised of no objection to the marriage of these parties, except the admission of
the mother that about two years before meeting with Perry, and about four
years prior to her marriage to him, she was married to James, who may have
then been living, though that fact is left in doubt. Upon such facts I was,
February 21, 1905, of opinion that Joe and Dillard Perry were shown to be
descendants of Charley Perry, a recognized citizen of the Chickasaw Nation,
born within the nation and to its allegiance.
At the time of my former opinion the question now presented by counsel for
the nation — while the facts raising it were contained in the record — was not dis
cussed in the briefs, and failed to be considered.
Section 34 of the act of July 1, 1902, supra, so far as here material, provides
that :
During the ninety days first following the date of the final ratification of this agree
ment, the Commission to the Five Civilized Tribes may receive applications for enroll
ment only of persons whose names are on the tribal rolls, but who have not heretofore
been enrolled by said Commission, commonly known as " delinquents," * * * and
such infant children as may have been born to recognized and enrolled citizens on or be
fore the date of the final ratification of this agreement; but the application of no per
sons whomsoever for enrollment shall be received after the expiration of said ninety days.
The act, sections 72 and 73, provided for the holding of an election for ratifica
tion on part of the Indian nations, and that it should not be effective until rati
fied at a tribal election, and, if ratified, should operate from that date. I am
170 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
advised that it was ratified by the tribes at an election held September 25, 1902,
so that the ninety days limited for presentation of applications extended to in
clude December 24, 1902.
There are distinct classes of persons provided for by section 34, the last of
which are infant children born to recognized and enrolled citizens, which would
include these applicants who are infants and were born to Charley Perry, during
his life a recognized Chickasaw citizen. They are therefore entitled if they
applied on or before December 24, 1902. The mother of the applicants testified,
October, 1904, as to the date of their application, as follows :
Q. When did you first claim these children were entitled to enrollment as Chickasaw
citizens by blood? — A. Last August.
Q. August of what year? — A. 190.3.
She further testified to circumstances fixed by dates of record respecting
allotments, which definitely fix the date of the first assertion of their claim as
being made after July 9, 1903.
In the Chickasaw Nation freedmen are not citizens, but are a class of non-
citizen persons, resident within the Chickasaw Nation, to whom certain rights
are granted by the nation and the Congress of the United States. Were they
a class of citizens, their application would not be, within the meaning of the
limitation in the act of 1902, supra, one for enrollment, but for correction of the
record by their removal from one class of citizens to another class of citizens.
Freedmen not being citizens of the Chickasaw Nation, the application can not
be considered as one to correct the record, but to admit and enroll them into a
citizenship to which they previously did not belong and their right to which the
record shows had not been asserted or applied for. Their application was
therefore within the limitation of section 34 of the act of 1902, supra, and was
made too late.
Though this question was not presented by counsel for the nation in the
former brief, it is a question as to the jurisdiction of the Commission over the
subject-matter, and may be taken at any stage of the cause. It does not admit
of doubt that the subject of limiting the time within which such rights must be
asserted is within the power of Congress, and that its action is conclusive. I
am therefore of opinion that the application must be denied.
A memorandum by counsel for the applicants refers to the judgment of the
citizenship court, November 28, 1904, in case of T. J. Minor, jr. (No. 117), and
states that —
I am informed that a number of transfers have been made from the freedmen roll.
Its importance as a reference in the Joe and Dillard Perry case consists mainly in the
fact that transfers were so made after the limit of time had expired when original appli
cations could be made
I have examined the judgment in the Minor case, and while it does not show at what
time his right to enrollment as a citizen by blood was first asserted, I infer from the
nature of the jurisdiction of the citizenship court that he must have made application
under the act of June 10, 1896, for enrollment as a citizen by blood, as otherwise his
case could not have reached that court, for adjudication.
In the present case 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 1890, 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 applicants as citizens by blood was asserted until after
December 24, 1902.
It is stated in the brief of counsel for the applicants that their allotments as
freedmen have been canceled, and that their applications to take allotments as
citizens were denied. It is needless to say that such procedure, if the state
ment be true, was erroneous. The applicants are enrolled freedmen, and hav
ing selected allotments as such, were entitled to hold them until their right to
enrollment as citizens was fully established, and their allotments, if canceled,
should be reinstated.
Very respectfully, FRANK L. CAMPBELL,
Assistant Attorney-General.
Approved November 11, 1905.
E. A. HITCHCOCK,
Secretary.
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 171
OFFICE OF THE SECRETARY,
Washington, D. C., April 15, 1905.
COMMISSION TO THE FIVE CIVILIZED TRIBES,
Muscogcc, Ind. T.
GENTLEMEN : The Department is in receipt of your letter of January 31, 1905,
reporting on the Creek enrollment case of Frank London et al.
On May 24, 1901, you decided that the applicants in said case were not
entitled to enrollment. Your decision was approved by the Department on
February 20, 1902. On May 25, 1904, the Department, having received a com
munication from Samuel Bonnell and Tobias Mclntosh relative to said case,
returned the record in the case, and you were requested to report whether the
name of Henry London, father of some of the applicants and grandfather of
others of the applicants, appears upon the rolls of the Creek Nation. You were
also directed to allow the attorneys for the nation and the applicants time
within which to file arguments in the matter, and to submit to the Department
any arguments that might be filed, together with your recommendation as to
whether the case should be reopened.
It appears that you so notified said attorneys and the applicants, and that no
argument was filed in the case.
The applicants Frank, Mary, Bettie, and Emma London are children of Henry
London. Joe Mosely is the child of Mary London. The ages of the applicants
are not given, except that of Mary London, who was 20 years of age in 1900.
You state in your letter of January 31, 1905, that you do not concur in the
opinion of the Commissioner of Indian Affairs expressed in his report of October
14, 1903, that—
Tf the father of these applicants was in fact a member of the Creek Nation and was
so recognized by said nation, there seems to be no question but that these children, unless
they have become otherwise disqualified, are entitled to enrollment as citizens therein.
You also state that the only act under which your Commission was authorized
to hear and determine the rights of applicants for admission to citizenship in the
Creek Nation was the act of June 10, 1800 (29 Stat, 321) ; that the Commission
" can now determine only the fact of, and has nothing whatever to do with the
right to, citizenship of the applicants."
You also state that none of the applicants is identified on the Dunn roll ; that
they are not the descendants of a person whose name appears upon said roll ;
that the name of Henry, Frank, Mary, and Bettie London are found on the 1890
authenticated roll, and that their names were among the 019 which were
stricken from the 1895 roll by the committee of eighteen ; that the applicants
Emma London and Joe Mosely were born subsequent to the year 1890 ; that
subsequent to 1895 the applicants were not admitted by any authority to citizen
ship in the Creek Nation.
You also state that to admit the applicants because of the alleged citizenship of
Henry London authority must be found for -so doing in the provisions of the
act of March 1, 1901 (31 Stat, 801),- or June 30, 1902 (32 Stat, 500) ; that it is
your opinion that the word " children " in both of these acts is used in contra
distinction to the word " descendant ; " that to hold otherwise doubtless would
result in the enrollment of many persons who had never resided in the Indian
Territory and who had never been recognized by any authority as citizens of the
Creek Nation. You recommend that the application be not opened.
Reporting March 28, 1905, the Indian Office recommends the approval of your
decision adverse to the applicants.
The laws of the Creek Nation, page 57, edition of 1880, provide that —
SECTION 1. All persons having resided out of the limits of the Muskogee Nation, and
whose rights as citizens of the same may seem to be questionable in consequence of inter
marriage with noncitizens, shall be bona fide citizens of this nation, provided they can
prove to the satisfaction of the proper authorities that they are of Muskogee descent, and
not further removed than the fourth degree.
SEC. 2. All persons who have been at any time adopted by the recognized authorities
of the Muskogee Nation, and all persons of African descent who were made citizens by
the treaty of June, 1866, between the Creek Nation and the United States, shall hereafter
be recognized as citizens of the Muskogee Nation.
SEC. 3. Any person claiming citizenship under these provisions shall, in order to
establish his 'or her rights, prove the same by a responsible and disinterested native
witness before the district court.
172 LAWS AFFECTING THE FIVE CIVILIZED TKIBES.
Apparently acting under the authority conferred on the district court by the
above provisions of law, Alex Mclntosh, judge of the Muscogee district, ren
dered the following decision :
LEE, IND. T., Feby. 10th, 189%.
To whom it may concern:
This is to certify that by authority vested in me, and according to instructions of
L. C. Ferryman, Prin. Ch'f. M. N., I have investigated the right of Henry London
(Howard) and have found in evidence before me that he is a full citizen of the Muskogee
Nation.
Therefore I pronounce him a full citizen of this nation, beyond a reasonable doubt.
Whereunto I affix my name and the seal of court of Muskogee dis't, M. N. this the
10th day of Feb., A. D. 1894.
ALEX MACINTOSH.
Judge M. Dist. M. N.
If the applicants are otherwise entitled to be enrolled as citizens of the
Creek Nation, the striking of their names from the 1895 roll by the committee
of eighteen does not affect their rights. (See departmental decision of May 7,
1904, I. T. D., 142G-02, 2564-04, Creek enrollment case of Chaney Trent et al.,
which decision was apparently overlooked by you in the preparation of your
report.) This being true, and the names of Frank, Mary, and Bettie London
appearing upon the 1890 authenticated roll of the Creek Nation, and there being
no evidence to show that their names were placed thereon by fraud or without
authority of law, they are entitled to be enrolled in accordance with depart
mental decision of June 11, 1903, in the Cherokee enrollment case of James W.
Shirley, also the Creek enrollment case of Chaney Trent, above referred to.
Not only are the applicants entitled to enrollment by reason of their names
being upon the authenticated roll of 1890, but being children of one whose name
appears upon the authenticated roll of 1890 they are, together with Emma
London and Joe Mosely, entitled to enrollment under section 8 of the Creek
supplemental agreement approved June HO, 1902 (32 Stat, 500), which provides:
All children who have not heretofore been listed for enrollment living May 25, 1901,
born to citizens whose names appear upon the authenticated rolls of 1800 or upon the
authenticated rolls of 1895 and entitled to enrollment as provided by the act of Congress
approved March 1, 1901 (31 Stat. L., 861), shall be placed on the rolls made by said
Commission.
Your attention is invited to the opinion of the Assistant Attorney-General
approved February 5, 1904, in the Creek enrollment case of Angeline King,
which decision is directly upon this point.
It is therefore clear that all of the applicants are entitled to enrollment as
citizens of the Creek Nation. The Department therefore rescinds its action
of February 20, 1902, affirming your decision adverse to the applicants, and
you are directed to enroll all of the applicants as citizens of the Creek Nation.
A copy of Indian Office letter of March 28, 1905, is inclosed.
Respectfully,
THOS. RYAN,
Acting Secretary.
OFFICE OF THE ASSISTANT ATTORNEY-GENERAL,
Washington, D. C., July 21, 1905.
The SECRETARY OF THE INTERIOR.
SIR: I received by reference of June 7, 1905, the record in the case of William
Durant and others for enrollment as freedmen citizens of the Creek Nation,
with request for my opinion thereon.
. William Durant is shown by birth certificate in the record to have been
born February 20, 1902, to Edmund Durant, who is identified on the 1891
omitted Creek roll. February 3, 1905, the Commission to the Five Civilized
Tribes found and recommended that Edmund Durant should be enrolled as a
Creek freedman under the acts of June 28, 1898 (30 Stat., 495, 503), and March
1, 1901 (31 Stat, 861, 870), and that the application of William Durant should
be denied. Edmund Durant's enrollment has not yet been approved by the
Secretary of the Interior. The act of March 3, 1905 (33 Stat, 1071), provides:
That the Commission to the Five Civilized Tribes is authorized for sixty days after
the date of the approval of this act to receive and consider applications for enrollments
of children born subsequent to May twenty-five, nineteen hundred and one, and prior
to March fourth, nineteen hundred and five, and living on said latter date, to citizens of
the Creek tribe of Indians, whose enrollment has been approved by the Secretary of the
Interior prior to the date of the approval of this act, and to enroll and make allotments
to such children.
LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
The act contains similar provisions as to children born to enrolled persons of
the Choctaw-Chickasaw and Seminole tribes. My opinion is requested.
whether the minor child, William Durant, born subsequent to May 25, 1901, and prior to
March 4, 1905, and apparently living on said latter date, is entitled to enrollment.
Application for the enrollment of said minor child, William Durant, was made prior to
the passage of said act, but the citizenship of the parents of said child is still pending
and undetermined. Though the father was admitted to enrollment by the Commission
prior to the passage of said act, his enrollment has not yet been approved by the Secre
tary of the Interior. The Department asks to be advised as to whether the above act
was intended to exclude the children born within the time fixed to parents whose applica
tions for citizenship, though filed long prior to the closing of the rolls and decided by the
Commission prior to the passage of said act, have not yet been reached and passed upon
by the Secretary of the Interior and received his approval prior to the date of the
approval of said act. Are the benefits of said act to be construed as restricted to the
children of only those " citizens of the Creek tribe of Indians whose enrollment has been
approved by the Secretary of the Interior prior to the date of the approval of this act?"
The act of March 1, 1901 (31 Stat, 861, 869), fixed July 1, 1900, as the date for
closing the roll of the Creek Nation. The act of March 3, 1905, directed the
enrollment of children of citizens whose right to enrollment had been fully
determined and approved by the Secretary. It had the effect to extend the date
of closing of the roll to March 3, 1905, as to the persons coming within its
description, and made the parent's enrollment the sufficient evidence for enroll
ment of the child.
The law now under consideration is plain and explicit. Those for whom
applications may be received are children of " citizens of the Creek tribe of
Indians whose enrollment has been approved by the Secretary of the Interior
prior to the date of the approval of this act." This wording leaves no room for
construction or for appeal to other statutes upon the same subject-matter to
ascertain the meaning thereof. It is true that " where a particular construc
tion of a statute will occasion great inconvenience or produce inequality and
injustice, that view is to be avoided if another and more reasonable interpreta
tion is present in the statute." (Knowlton v. Moore, 178 U. S., 41, 77.) That
rule can not be properly invoked here because the words used will admit of only
one construction. The fact that a law seems to be illogical, unwise, and to work
inequality and injustice does not give the courts or the executive departments
license to read into it words and sentences that might make it accord with
their views of what the law ought to be. This Department has no power to
say that this law means anything other than the words indicate or to construe
it to include any class of persons other than children of citizens of the Creek
Nation, whose enrollment was approved by the Secretary of the Interior prior
to the approval of said act of March 3, 1905.
The appellant, William Durant, is not entitled to enrollment under this act.
I would suggest, however, that final action in this and similar cases be withheld
until the matter can be presented to the Congress with request for such further
action as may be proper and necessary to avoid the apparent inequalities and
injustices necessarily growing out of the law as it now stands.
The papers submitted are herewith returned.
Very respectfully, FRANK L. CAMPBELL,
Assistant Attorney-General.
Approved July 21, 1905.
THOS. RYAN,
Acting Secretary.
OFFICE OF THE ASSISTANT ATTORNEY-GENERAL,
Washington, D. C., October 4, 1905.
The SECRETARY OF THE INTERIOR.
SIR : I received by letter of September 20, 1905, a copy of departmental order
of June 13, 1904, fixing September 1, 1904, as the time for closing the rolls of
the Muscogee or Creek Nation. My attention is directed to section 7 of the act
of June 30, 1902 (32 Stat, 500-501), requiring the Commission to the Five Civil
ized Tribes to enroll all children of parents entitled to enrollment in the Creek
Nation born after July 1, 1900, to and including May 25, 1901, living at the latter
date, and to the act of March 3, 1905 (33 Stat, 1048, 1071), which provides:
That the Commission to the Five Civilized Tribes is authorized for sixty days after the
date of the approval of this act to receive and consider applications for enrollments of
children born subsequent to May twenty-five, nineteen hundr.ed and one, and prior to
March fourth, nineteen hundred and five, and living on said latter date, to citizens of the
174 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
Creek tribe of Indians whose enrollment has been approved by the Secretary of the
Interior prior to
to such children.
Interior prior to the date of the approval of this act, and to enroll and make allotments
childi
The letter refers the record in case of Rosella Lewis. My opinion is
requested —
whether the enactment of the later act of March 3, 1905, had the effect of reviving and
extending the benefits of enrollment to children coming within the provisions of section 7
of the act of June 30, 1902 ; * * whether the said Rosella Lewis, in view of the
foregoing order of the Secretary and acts of Congress referred to, is entitled to enrollment.
The record shows that Rosella Lewis was born March 8, 1901, to Royford
Lewis and his wife, Ellen, whose names appear on partial rolls of Creek freed-
nien approved by the Secretary of the Interior respectively December 1, 1903,
and March 28, 1902. Her mother's enrollment was, prior to June .30, 1902,
approved, and her father was then, as the event showed, " entitled to enroll
ment" By virtue of such facts, in the right of either parent, she was within
the benefit of the act of June 30, 1902, which provided that-
All children born to those citizens who are entitled to enrollment, as provided by the act
of Congress approved March 1, 1901 (31 Stat., 861), subsequent to July 1, 1900, and
up to and including May 25, 1901, and living upon the latter date, shall be placed on the
rolls made by said Commission.
The act of 1905 is limited in application to children born subsequent to May
25, 1901, so that she is not within its benefit. While the act of June 30, 1902,
was not expressly limited as to the time for application, it gave those within its
benefits no right against the fixing of a reasonable date by the Secretary of the
Interior for the closing of the roll. The date fixed was reasonable and gave
ample time for presentation of her application, and was operative against her
equally with other claimants to enrollment. I am of the opinion that the act
of March 3, 1905, supra, is confined in its operation to those coming within its
terms, and does not operate to extend the time fixed by the Secretary's order
of June 13, 1904, and that applicant is barred by failure to apply before the date
fixed for closing the roll.
Very respectfully, FRANK L. CAMPBELL,
Assistant Attorney-General.
Approved October 4, 1905.
E. A. HITCHCOCK,
Secretary.
OFFICE OF THE ASSISTANT ATTORNEY-GENERAL,
Washinf/ton, I). C., November 12, 1904.
The SECRETARY OF THE INTERIOR.
SIR: I received by reference of July 22, 1904, with request for my opinion
thereon, the record in the application of Lemuel Welcome to the Commission to
the Five Civilized Tribes for his enrollment as a Cherokee freedman by inter
marriage. The applicant is a negro, born in Ohio about 1855, who first went to
the Cherokee country about 1870, and September 19, 1883, under a Cherokee
marriage license, married Amanda Williams, who was identified on the 1880
authenticated roll of Cherokee freedmen. Her enrollment by the Commission
to the Five Civilized Tribes was approved by the Secretary of the Interior April
30, 1904. She" and the applicant were residents in good faith of the Cherokee
Nation at the time of their marriage, and have ever since continuously lived
there. The applicant claims right to enrollment by virtue of his marriage, and
the question presented is whether one not of Cherokee blood by intermarriage
with a Cherokee freedman becomes entitled to be enrolled as a citizen by inter
marriage.
The right of the Indian nations or tribes to regulate their internal affairs, sub
ject to the control of Congress, has always been recognized by the Government
and courts of the United States. Talton v. Mayes (163 U. S., 376, 382-383) ;
Kagama v. United States (118 U. S., 375, 381) ; Roff v. Burney (163 U. S., 218,
222). The right to define how citizenship may be acquired and what rights
shall accrue by intermarriage of persons not citizens with its own citizens is
necessarily the right of every self-governing community and belongs to the
Indian nations, subject only to control of Congress. Negroes were not Cher
okee citizens until the treaty of July 19, 1866 (14 Stat, 799-801), by Article IX,
provided that —
all freednden who have been liberated by voluntary act of their former owners or by law,
as well as all free colored persons who were in the country at the commencement of the
rebellion, and are now residents therein or who may return within six months, and their
descendants, shall have all the rights of native Cherokees, * * *
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 175
The rights conferred were such as pertained to membership in the tribe as
such. It did not of itself have the effect to give them power, by marriage with
one alien to the nation, to confer on such person espoused rights of citizenship
not conferred by any law of the Cherokee Nation or act of Congress. It is anala-
gous to the fourteenth amendment to the Constitution of the United States, and
had the same object with respect to the Cherokee Nation and the persons affected
as that amendment had respecting the States of the Union and the persons of
negro race residing in the United States. The court held in the Slaughterhouse
cases (16 Wall., 36, 73), "that its main purpose was to establish the citizenship
of the negro can admit of no doubt," but that (ib., 77) : "The entire domain
of the privileges and immunities of citizens of the States, as above defined, lay
within the constitutional and legislative power of the States and without that
of the Federal Government." The treaty of 1866 went no further than to confer
upon the classes therein named and their descendants the rights of Cherokee
citizenship ; but it did not confer upon the new citizens so admitted the power
to grant citizenship to other aliens also by marriage with them. The question
presented must therefore be solved by the Cherokee law.
Citizenship by intermarriage is conferred by Cherokee law upon " every
white man, or citizen of the United States, or of any foreign state or govern
ment " who marries " a Cherokee, Delaware, or Shawnee woman, citizen of the
nation," upon complying with conditions and regulations imposed. (Cherokee
Laws 1881, sec. 66, p. 275; Laws 1892, sec. 660.)
It is argued by counsel that Mrs. Welcome —
being a freedman under the ninth article of the treaty of 1866, she had " all the
rights of native Cherokees."
* * * If a native Cherokee marries a white woman, she becomes thereby adopted
into the tribe and is endowed with the rights of citizenship. Now, if a freedman
who has all the rights of a native Cherokee married out of the tribe, is not the wife
or husband so married adopted into the tribe? If not, then the freedman has not "all
the rights of native Cherokees." * * * In other words, a freedman who has all
the rights of native Cherokees ought to be able to do whatever such native Cherokee
can do.
The answer to this position has already been given. The right to contract a
marriage does not necessarily carry with it the right of the spouse to citizenship.
It is for the State to define how and upon whom citizenship shall be con
ferred. It may also regulate and define marriage and its effects. Laws
against intermarriage of the white and black races are not annulled or inhibited
by the fourteenth amendment and civil-rights legislation thereunder. Green
v. State (58 Ala., 190; 29 Am. R., 739) ; Kinney's case (30 Gratt. Va., 859) ;
Frasher v. State (3 Tex. Ct. App., 263; 30 Am. R., 131) ; State v. Gibson (36
Ind., 389; 10 Am. R., 42) ; State v. Kennedy (75 N.VC., 251; 22 Am. R., 683) ;
ex parte Francois (3 Wood's U. S. 5th Cir., 367). If the amendment and
civil-rights legislation conferring upon the negro all the rights, privileges,
and immunities of citizens of the United States did not have the effect to confer
right of marriage with persons of another race the treaty of 1866 would, ob
viously, not give right to confer citizenship on a noncitizen by intermarriage.
Welcome was a citizen of the United States and under Cherokee law
eligible to become a citizen of the Cherokee Nation by intermarriage, if the
woman he espoused was, within the meaning of the Cherokee law, " a Chero
kee woman," and such marriage was permissible under Cherokee law.
In Alberty v. United States (162 U. S., 499) it was a controlling question,
decisive of jurisdiction of the Federal courts, whether Duncan, of Indian blood,
illegitimate son of a Choctaw Indian by a negro woman who in 1880 or
earlier married a Cherokee freed woman, a Cherokee citizen, was by virtue of
such marriage a Cherokee citizen. The court held (ib., 501) :
It would seem, however, from such information as we have been able to obtain of
the Cherokee laws, that such marriage would not confer upon him the rights and
privileges of Cherokee citizenship beyond that of residing and holding personal property
in the nation ; that the courts of the nation do not claim jurisdiction over such
persons, either in criminal or civil suits, and they are not permitted to vote at any
elections.
For the purposes of jurisdiction, then, Alberty must be treated as a member of the
Cherokee Nation, but not an Indian, and Duncan as a colored citizen of the United
States.
In Talton v. Mayes, supra, the court held that, where no objection existed
arising from the Constitution or any treaty or law of the United States, " the
determination of what was the existing law of the Cherokee Nation " was a
matter solely "within the jurisdiction of the courts of that nation." The
supreme court of the Qherofeee Nation, June 20, 1871, in the cases of George
Washington and others claiming citizenship in the Cherokee Nation by inter-
176 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
marriage with freedman Cherokee citizens, held that citizenship by intermar
riage could not be so obtained.
In the legislation of Congress, as well as in Cherokee laws, the distinction
between Cherokees and Cherokee freedmen is well marked. They are borne
on different rolls. While citizens of the Cherokee Nation, they are not Indians
nor Cherokees, nor spoken of or regarded as such, but are Cherokee freedmen,
a distinct class of citizens. The words " Cherokee woman " in the intermarriage
act signify and must be taken to mean a woman citizen of the nation who is
such by virtue of Cherokee blood, the same as Shawnee and Delaware coupled
therewith indicate citizens by blood descent from the Shawnee and Delaware
Indian stocks.
This interpretation and meaning harmonizes with the legislation of Con
gress and is that which the Cherokee courts, their former judges, and lawyers
testify is the legal signification of the words.
It follows that the application was properly rejected by the Commission,
and I am of opinion that such decision should be affirmed.
Very respectfully,
FRANK L. CAMPBELL,
Assistant Attorney-General.
Approved November 15, 1904.
E. A. HITCHCOCK,
Secretary.
OFFICE OF THE ASSISTANT ATTORNEY-GENERAL,
Washington, D. (7., February 10, 1905.
The SECRETARY OF THE INTERIOR.
SIR : I received by reference of October 6, 1904, with request for, opinion
thereon, the motion of Belle Z. Bowers to set aside departmental decision of
February 7, 1902, and that of the Commission to tae Five Civilized Tribes there
tofore rendered, and to grant a new hearing upon her application for enrollment
of herself and her husband and children as citizens by blood of the Cherokee
Nation.
January 19, 1902, the Commission rejected her application, with others, upon
the ground that —
not one of the foregoing-named persons is a recognized citizen of the Cherokee Nation or
has ever been duly and lawfully enrolled or admitted as such. All of them are there
fore considered to come under the provision of the act of Congress approved May 31, 1900
(31 Stat., 221, 236) : * * * " That said Commission * * * shall not receive,
consider, or make any record of any application of any person for enrollment as a mem
ber of any tribe in Indian Territory who has not been a recognized citizen thereof and
duly and lawfully enrolled or admitted as such."
Upon the record of testimony the Commission found, January 8, 1902, that —
Upon an examination of the tribal rolls of the Cherokee Nation now in possession
of the Commission none of the applicants mentioned herein are identified thereon, nor
does it appear that they have ever been admitted to citizenship by an act of the Cherokee
national council or the Cherokee commissions on citizenship.
This action was affirmed by the Secretary February 7, 1902. The motion for
a new hearing is based upon two alleged errors of fact of the Commission, viz,
that the records of the Cherokee Nation in possession of the Commission show
(1) that the principal applicant, by her maiden name of Belle Z. Fiippin, was
admitted to citizenship of the Cherokee Nation September 26, 1884, by the Spears
commission, and that the names of applicant, Belle Z. Bowers, her husband,
M. C. Bowers, and their children then living, Lou F. Berne and Andy H. Bow
ers, appear on the 188G Cherokee tribal roll, Cooweescoowee district. July 13,
1904, the Commission advised counsel for applicant by a letter, the original of
which is filed with the motion, that such names do appear upon the 1886 tribal
roll. A certified and sworn copy of the record of proceedings of the Spears
commission on citizenship is also filed, showing the admission of Hannah Fiippin
and her children, among whom was " Bell Z.," September 26, 1884.
The motion and accompanying papers were served upon counsel for the Chero
kee Nation, who has responded thereto, not denying the fact of the alleged
admission of the principal applicant or the enrollment of 1886. Both the errors
of fact of the Commission, which were the basis of its decision of January 19,
1902, and of that of the Department of February 7, 1902, that there was no juris
diction to consider the merits of the applicants' claim of right to enrollment, are
thus, for all purposes of the motion, fully established.
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 177
There is, however, annexed to the response by counsel to the nation what pur
ports to be a statement of the action taken by the Commission November 24,
1896, in the cases of these applicants, whereby "some " were denied and " others "
were admitted, and that an appeal was taken to the United States court for the
northern district of Indian Territory, under the act of June 10, 1896 (29 Stat.
321, 329), and that such court rendered a decision therein, an unauthentic copy
of which is included in such statement. This unauthentic copy of the proceed
ings of the court purports to show that the final action of the court upon the
applications was adverse to all the applicants, upon the ground that an act of
the Cherokee council December 8, 1886, empowered the Adair commission to
try a complaint by the Cherokee Nation charging these applicants (and others)
" with having obtained citizenship by fraud and bribery," and to try such charge,
to .reexamine the merits and annul the admission, and that the Adair commission
did annul the action of the Spears commission.
Counsel for applicants, in response, concedes that the court rendered such
judgment, and thus, for purposes of this motion, cures the lack of its authen
tication, but contends that the bar of the judgment rendered by the court
upon appeal, under the act of June 10, 1896 (supra), is raised by the later
legislation of Congress, citing and relying upon the acts of June 28, 1898 (30
Stat, 495, 502), of May 31, 1900 (31 Stat, 221, 236), and July 1, 1902 (32 Stat,
716-720). But for the concession of the rendition of the judgment the appli
cants would be entitled to a rehearing as of course. The facts that formed the
basis of the Commission's action being altogether untrue and nonexistent, the
decision would necessarily be set aside, as the applicants are entitled to an
adjudication of their right upon a true finding of fact. As, however, they con
cede the rendition of the judgment against them, a rehearing should not be
granted merely because of error as to the grounds for the action, if upon the
conceded fact their claim is clearly barred, and the same action adverse to them
must be taken, though for another reason. The real question presented, there
fore, is not whether the action of the Commission and of the Department
adverse to applicants was erroneous — it clearly was — but the question becomes,
by these admissions, whether the judgment of the court in their cases under the
act of June 10, 1896 (supra), is now final and a bar to their claim of right.
The act of 1898, after confirming the roll of 1880 and directing enrollment (1)
of all persons thereon and (2) their later born descendants, directed the Com
mission further to enroll (3) all persons enrolled by tribal authority who there
tofore permanently settled in the nation, descended from persons lawfully
admitted to citizenship by reason of Cherokee blood, and who were minors
when their parents were admitted; and (4) "they shall investigate the right of
all other persons whose names are found on any other rolls and omit such as may
have been placed thereon by fraud or without authority of law." This provi
sion, in terms, required the Commission to consider and to investigate all cases
of claims made by anyone borne on any other than the roll of 1880, and to pro
ceed as to persons on other rolls to make a new roll by exclusion therefrom of
those found to be entered thereon by fraud or without authority of law. That
this, in terms, would include the applicants can not admit of doubt, for those
then living were on the roll of 1886. This construction is not only the natural
one, but is borne out by the history of the case of Stephens and others against
the Cherokee Nation.
Stephens in 1896 applied to the Commission for enrollment of himself, his
children, and grandchildren. Stephens was one-quarter Cherokee, grandson of
Capt Shoe Boots, of the old Cherokee Nation. Stephens was born in Ohio, of
Shoe Boots's daughter, Sarah, born in Kentucky. Stephens went to the Chero
kee Nation in 1873 and sought readmission, but it was never granted, and his
name was on no roll. The Commission refused his enrollment on this ground,
and on his appeal the court affirmed that action December 23, 1898. The case
was appealed and affirmed by the Supreme Court May 15, 1899 (174 U. S., 445,
471). It was pending when the act of 1898 was adopted, as were many other
appeals, and in directing investigation of the right of " all other persons whose
names are found on any other rolls " Congress directly approved the ruling
principle that when citizenship in the nation was lost it could only be regained
by consent of the nation, but saved the right of all persons on any roll, sub
ject to investigation by the Commission and proof of the fraudulent or illegal
33753—06 M 12
178 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
admission of such person. This was merely reaffirmed by the act of May 31,
1900, which provided—
That said Commission shall continue to exercise nil authority heretofore conferred on
it by law ; but it shall not receive, consider, or make any record of any application of
any person for enrollment as a member of any tribe in Indian Territory who has not been
a recognized citizen thereof and duly and lawfully enrolled or admitted as such.
The act of July 1, 1902 (sec. 25), again reaffirmed the rules for procedure
fixed by the acts of 1898 and 1900, supra, with limitations and changes not ma
terial to the question here.
I am therefore of opinion that the bar of final adverse judgments upon ap
peals taken under the act of 189(5 is removed as to all Cherokee claimants whose
names appear on any of the tribal rolls, and that such persons are entitled to
have their cases decided upon the merits. It follows that the application for
rehearing should be allowed and the Commission be directed to hear and decide
the case upon its merits, hearing any other testimony and considering any other
competent evidence that the parties may offer necessary fully to present their
contentions.
Very respectfully, FRANK L. CAMPBELL,
Assistant Attorney-General.
Approved February 10, 1905.
E. A. HITCHCOCK,
Secretary.
OFFICE OF THE ASSISTANT ATTORNEY-GENERAL,
Washington, D. C., March 25, 1905.
The SECRETARY OF THE INTERIOR.
SIR: I received by reference of October 17', 1904, with request for my opinion
thereon, the papers in the application of Clara A. Ward to be enrolled as a
citizen of the Cherokee Nation.
The applicant was born in the nation, to its allegiance, of Cherokee parents,
in 1859, and lived there until September 2, 18<>2, when her father, a Moravian
missionary, was killed. The widow and five children went to Illinois, where
she died in 18G4. The orphaned children were educated by the Moravian
Missionary Society — Clara at New Hope, Ind. When of age she entered Belle-
vue Hospital, New York, served two years, and was admitted by diploma to the
profession of trained nurse. She has practiced this calling ever since in dif
ferent States, making her headquarters in New York City, where she has a fur
nished room. She was never again in the nation until September 7, 1900, and
remained a little over a year, when she returned to New York, and does not
intend to return to the nation if denied enrollment. She is identified, under
the name of C. E. Ward, on the 1883 Cherokee payment roll. She has not re
tained property or effects in the nation, and has never applied to the Cherokee
authorities for readmission, and has not been readmitted. November 20, 1902,
the Commission denied her enrollment, under paragraph 9, section 21, of the
act of June 28, 1898 (30 St.it., 495), and May 1, 1903, the Department reopened
and remanded the case for further proceedings and readjudication. March 10,
1904, the Commission, referring to section 2 of the Cherokee constitution, held
that the applicant is not entitled to enrollment, and denied her application.
The provision of the Cherokee constitution referred to is :
That whenever any citizen shall remove with his effects out of the limits of this
nation and becomes a citizen of any other government, all his rights and privileged as a
citizen of this nation shall cease ; provided, nevertheless, that the national council shall
have power to readmit by law, to all the rights of citizenship, any such person or persons
who may at any time desire to return to the nation on memorializing the national
council for such readmission.
The brief of applicant rests her right to enrollment upon two grounds, viz,
section 0 of the act of February 8, 1887 (24 Stat, 388, 390), and upon the im
possibility of her being expatriated by the provision of the Cherokee constitution
above quoted, as there was no law permitting her naturalization, as decided by
the court in Elk v. Wilkins (112 IT. S., 94).
The act of February 8, 1887, generally known as the Indian allotment act, by
its eighth section expressly excepted from its operation the territory occupied
by the Cherokees and that of other specified tribes. The tribes whose lands
were thus excepted included all those who had as tribes advanced to constitu
tional government, with organized courts for protection of rights of persons and
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 179
property. It is a settled policy of the United States in dealing with the Indian
tribes to recognize their right to regulate their own internal policy and govern
ment. Some tribes had fallen far behind others in development toward civilized
government, and individual members of such backward tribes were advanced
beyond the social development of their tribe. In view of such fact the Indian
Department, in construction of the allotment act, has regarded it as applying to
the members of those tribes only whose tribal lands were not excepted by the
eighth section. Section 6, however, reads :
And every Indian born within the territorial limits of the United States to whom allot
ments shall have been made under the provisions of this act, or under any law or treaty,
and every Indian born within the territorial limits of the United States who has volun
tarily taken up, within said limits, his residence separate and apart from any tribe of
Indians therein, and has adopted the habits of civilized life, is hereby declared to be a
citizen of the United States, and is entitled to all the rights, privileges, and immunities
of such citizens, whether said Indian has been or not, by birth or otherwise, a member
of any tribe of Indians within the territorial limits of the United States, without in any
manner impairing or otherwise affecting the right of any such Indian to tribal or other
property.
The first sentence quoted can not possibly have any operation as to members
of tribes whose territories are excepted from operation of the eighth section.
The members of tribes whose lands are not subject to allotment would not have
allotments. After the subject of protection of Indian allottees follows the grant
of citizenship, which is given (1) to Indians who have taken up allotments, and
(2) to—
every Indian born within the territorial limits of the United States who has voluntarily
taken up, within said limits, his residence separate and apart from any tribe of Indians
therein, and has adopted the habits of civilized life, * * whether said Indian has
been or not, by birth or otherwise, a member of any tribe of Indians within the territorial
limits of the United States, without in any manner impairing or otherwise affecting the
right of any such Indian to tribal or other property.
The construction by the Department has been that this provision had reference
to members of tribes subject to the general allotment provisions of the act, so
that the taking of an allotment was not made an essential condition to American
citizenship. This construction harmonizes with the expressed purpose of the
eighth section not to interfere with the tribal organization or self-government
of such tribes, thus restraining the unlimited words of the act to operate accord
ing to its general purpose. The Department adheres to such construction, and
it follows that the applicant is not within the benefit of section G of the act of
1887, and this part of her contention must be denied.
In Elk v. Wilkins, supra, the court held that :
But the question whether any Indian tribes, or any members thereof, have become so
far advanced in civilization that they should be let out of the state of pupilage and
admitted to the privileges and responsibilities of citizenship is a question to be decided
by the nation whose wards they are and whose citizens they seek to become, and not by
each Indian for himself.
The court also held that the general naturalization acts do not apply to
Indians, and that members of an existing Indian tribe which has not as a
tribe " totally extinguished their national fire and submitted themselves to the
laws of the United States " can never become or be deemed citizens of the
United States, " except under explicit provisions of treaty or statute to that
effect."
Based on this decision, the applicant's contention is that she has never become
expatriated from the Cherokee Nation under the provision of section .2 of its
constitution, which makes the becoming " a citizen of any other nation " one of
the essential conditions. Her reasoning, in brief, is that as she did not and
could not become a citizen of the United States (unless under the act of 1887,
supra, which saved her rights), therefore her rights of Cherokee citizenship
could not be lost.
The argument is specious, but, in my opinion, not sound. In administration
of the Cherokee tribal property for distribution to the members of the nation
the United States acts as trustee, with no interest in itself or otherwise than to
effect a faithful discharge of its trust. The property is communal and belongs
to the community. The title was granted to the nation by the United States.
Those only have interests in it who are citizens of the nation, and their interest
is a mere incident to such citizenship. Who are Cherokee citizens is peculiarly
a question of Cherokee law, when such law is not overborne by any act of Con
gress. The words or provisions of Cherokee law must be interpreted for this
purpose as the Cherokee authorities interpret and understand them. Measured
180 LAWS AFFECTING THE FIVE CIVILIZED TKIBES.
and interpreted by this rule, the meaning of this provision of the Cherokee
constitution is not obscure.
The Cherokee constitution was adopted in 1839, long prior to the decision
in Elk v. Wilkins, and without reference to the doctrine there announced. The
evil that was aimed at appears to have been the withdrawal of the more civ
ilized and progressed element of the people, retarding the general progress and
development, without contributing by their efforts to that end, or bearing any
inconveniences of a rude condition of society of any of the nation's burdens.
In respect to the Eastern Cherokees, who never migrated to the Nation, this
evil was commented upon in the case of the Cherokee Trust Funds. (117 U. S.,
288, 311.)
The practice of the Cherokee Nation shows this to be the construction given
this provision. That practice has been that withdrawal by a citizen of his
person and effects worked his loss of citizenship, which only the national
council had power to restore by readinission. The council was at times free to
pass acts of readmission and in many cases the persons obtaining such favor
neglected to return. The evil became so great that, December, 1804, the council,
by general act, required return of readmitted citizens within six months. I am
therefore of opinion that a proper construction of this provision is that with
drawal of the person and effects of a citizen from the nation without intention
to return and identification with another and alien community work loss of
citizenship, whether actual citizenship is elsewhere acquired or not. This con
struction accords with the practice of the Cherokee authorities and their
understanding and construction of it.
Under this construction there can be no doubt that the applicant lost all right
of citizenship. After she was of full age, from 1880 until September 7, 1900,
a period of about twenty years, she was to all intents and purposes voluntarily
identifying herself with a community alien to the Cherokee Nation, contributing
in her useful calling to its life and development, but neither by her personal
activities, thought, or means aiding in the progress or contributing by her
means and effects to the upbuilding of the Cherokee Nation. She, in my
opinion, thereby became, if not a citizen of the United States, at least a non-
tribal Indian of Cherokee descent, but not longer a member of the Cherokee
Nation, until readmitted in accordance with Cherokee laws and usages.
This is in harmony with the decisions of the United States courts for the
central and southern districts of the Indian Territory in citizenship cases ap
pealed from the Commission to the Five Civilized Tribes under the act of 1890,
in the cases of Caleb W. Hubbard et al. v. Cherokee Nation ; and Application of
certain persons v. Cherokee Nation. The courts held that the provision of
the Cherokee constitution, above referred to, and Cherokee law and usage
control, no act of Congress existing to the contrary.
I am therefore of opinion that the application of Clara A. Ward was
properly denied by the Commission.
Very respectfully, FRANK L. CAMPBELL,
Assistant Attorney-General.
Approved March 25, 1905.
E. A. HITCHCOCK,
Secretary.
OFFICE OF THE ASSISTANT ATTORNEY-GENERAL,
Washington, D. C., June 19, 1905.
The SECRETARY OF THE INTERIOR.
SIR : I received, by reference of June 5, 1905, with request for opinion thereon,
the record in the case of Thomas J. Lasley and others for enrollment as citi
zens by blood of the Cherokee Nation.
The applicant based his claim of right upon being the son of George Lasley
and Sarah (nee Walker), his wife, both of whom were recognized Cherokees.
As proof of that right he relied upon a judgment of the United States court of
the Indian Territory, northern district, under the act of June 10, 189f> (29 Stat,
321, 339), on appeal from denial of his application to be enrolled rendered by
the Dawes Commission November G, 1890. A transcript of the judgment ad
mitting him, September 30, 1897, was filed with the present Commission. The
Cherokee Nation opposed the application on the ground that it was fraudulently
recovered, and adduced a considerable amount of testimony of old acquaintances
and relatives of George and Sarah Lasley tending to show that the applicant's
LAWS AFFECTING THE FIVE CIVILIZED TKIBES. 181
alleged parents were married in 1859 ; that they never had but two children—
the oldest, a daughter, now living and enrolled, and a son George, born a few
months after his father was killed during the war of the rebellion, and that
this son died an infant at Sulphur when only about six months old. One wit
ness testified to being present at the child's death and burial. The daughter
testified and denied the claimed relationship. John Rattlingourd, or John R.
Gourd, and Martha Ann Grinstead were shown by the record of the United
States court to be the proof witnesses of the applicant's identity as son of his
claimed parents. Rattlingourd testified before the present Commission, and
claimed that he was never sworn to the affidavit bearing his signature by mark,
and that he did not have any knowledge or means of knowledge of the facts set
out therein. The applicant introduced no evidence to sustain the judgment or
to rebut the evidence of fraud. The Commission gave no consideration to the
testimony offered, and, March 10, 1904, held that " Said judgment under the law,
29 Statutes, supra, became final, and this Commission has no authority to review
the same," and enrolled the applicants. The Cherokee Nation protests against
the decision and has filed a brief, which was served April 1, 1904, by registered
mail, upon the applicant, who has not responded thereto.
The act of June 28, 1898 (30 Stat, 495, 502), provides that :
Said Commission is authorized and directed to make correct rolls of the citizens by
blood of all the other tribes, eliminating from the tribal rolls such names as may have
been placed thereon by fraud or without authority of law, enrolling such only as may have
lawful right thereto and their descendants born since such rolls were made, with such
intermarried white persons as may be entitled to Choctaw and Chickasaw citizenship
under the treaties and the laws of said tribes.
The provision of the act of 189G, supra, that such judgments shall be " final,"
is but the usual form of expression that no appeal or further step in the same
proceeding lay for review for errors of fact or of law. Remedy for fraud in
recovery of judgments, even those of courts of last resort whose judgments are
" final," is a familiar subject of the jurisdiction of courts of equity. When
Congress gave the Commission authority to purge the tribal rolls of names
which had obtained place thereon by fraud, that jurisdiction extended to every
case by which such enrollment was fraudulently obtained, regardless of the
avenue through which the name attained place on the roll.
I am of opinion that, as the statute makes no exception or classification of
cases in which the Commission may cancel an enrollment obtained through
fraudulent devices, no narrowing of its authority to any particular class of
cases was intended. December 7, 1904, the Attorney-General, construing the
act of 1898, supra, in case of admission by act of the Choctaw national council,
held that—
It appears to me the above-quoted provisions of the statute impose upon the Commis
sion to the Five Civilized Tribes the duty and give it the power to determine whether
any name appearing upon a tribal roll was placed there by fraud or without authority
of law, and that the mere fact that such enrollment was by virtue of an act of the
national council is not sufficient to preclude an inquiry. An act of the council should
be treated with respect as prima facie valid and efficacious, and nothing done as the
result thereof should be lightly set aside ; but if it clearly appears that the act was pro
cured by deliberate fraud and perjury, I do not think Congress intended that benefits
thereunder should be enjoyed.
That reasoning is equally applicable to an enrollment through fraud practiced
upon the court. The Commission should have considered the evidence, and if it
" clearly " appeared that such judgment was obtained by practice of fraud,
should have denied enrollment of the applicants.
My attention is directed by the letter of reference to my former opinions in
cases of Francis M. Dawson, February 18, 1904 (I. T. D., 7442-1903) ; William
H. Shoemake, May 27, 1904 (I. T. D., 512-1904), and Angeline White, January
31, 1905 (I. T. D., G226-1904).
In the first of these cases the fraud was charged to have been committed on
the tribal court in January, 1883, " by bribery of the clerk and perjured testi
mony." The admissions had been acquiesced in by the nation for fully thirteen
years, accepting the allegiance of those admitted, calling them to its official
service which they had rendered, marriages had been contracted, homes had
been built, and children and been born to that allegiance. During all this time
the nation had plenary power as an autonomous community to call the parties
to answer and, by due exercise of its own powers, might have vindicated any
wrong that had been perpetrated, but acquiesced and was silent. The nation
182 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
was deemed concluded by its own laches, reference being made to the decision
in Throckmorton v. United States (98 U. S., Gl, 65), wherein it was held that —
There is also no question that many rights originally founded in fraud become — by
lapse of time, by the difficulty of proving the fraud, and by the protection which the
law throws around rights once established by formal judicial proceedings in tribunals
established by law, according to the methods of the law — no longer open to inquiry in
the usual and ordinary methods.
The case of Shoemake was of similar character and arose in the same year
(1883), but the alleged fraud in that case was affirmatively disapproved, as
will appear by reference to that opinion.
The case of Angeline White did not involve a question of fraud, but the rights
of intermarried whites under the thirty-eighth article of the treaty of April 28,
1806 (14 Stat., 769, 779), and the express mandate of Congress to the Com
mission in the act of June 28, 1898, to enroll this class of persons. I fail to
see that that opinion has any relevancy to the present case, nor are the other
opinions in conflict therewith.
I am of opinion that the evidence presented, and nowise rebutted or attempted
to be explained, is sufficient to sustain a finding that the judgment was obtained
fraudulently ; that the Commission might well have so found, and that the
Department in its review of the case has jurisdiction to pass upon that question
and may so find, and deny the applicant's enrollment.
Very respectfully,
FRANK L. CAMPBELL,
Assistant Attorney-General.
Approved June 19, 1905.
E. A. HITCHCOCK,
Secretary.
OFFICE OF THE ASSISTANT ATTORNEY-GENERAL,
Washington, D. C., August 31, 1905.
The SECRETARY OF THE INTERIOR.
SIR : I received by reference of June 19, 1905, the record in the case of Mary
Ann Riley and others, applicants for enrollment as Cherokee freedmen, with
request for my opinion " whether the applicants in said case are entitled to
enrollment."
The applicants are Mary Ann Riley, born about 1820; her daughter, Mary
Hazel rig, nee Riley, born about 1855, for herself and minor children, William
A., Jesse, Lacy, Alexander, Joseph E., James M. T., James L., and Fred; Mary
Brown, nee Hazelrig, for herself and minor children, Robert Lee and George R.
The Commission to the Five Civilized Tribes found that—
Mary Ann Riley and Mary Hazelrig are mother and daughter, and were the slaves of a
Cherokee citizen at the commencement of the rebellion ; that they were taken out of the
Cherokee Nation during said rebellion and did not return thereto and establish a resi
dence therein within the time specified in the decree of the Court of Claims, rendered
February 8, 1890, in the case of Moses Whitmire, trustee, etc., v. The Cherokee Nation et
al., for the return of Cherokee freedmen to said nation. The other applicants herein are
children and grandchildren of the applicant, Mary Hazelrig, were born since 1866, and
possess no rights to enrollment other than as descendants of the said Mary Hazelrig.
None of the applicants herein can be identified on the Cherokee authenticated tribal roll
of 1880, or the Cherokee census roll of 1896. * * * The applications * * *
should be denied. * * * It is so ordered.
The applicant, Mrs. Riley, is identified on the Kerns-Clifton roll, and Mrs.
Hazelrig on that roll and the Wallace roll of freedmen. The Indian Office recom
mend approval of the action of the Commission. Counsel for applicants make
no contention upon the facts as found by the Commission. I therefore accept
them as true for the purposes of this opinion.
Counsel, however, contend that by their enrollment upon the Kerns-Clifton
roll—
These people were judicially declared to be citizens of the Cherokee Nation and freed
men. They were judicially declared to be entitled to all the rights which they got under
the treaty of 1866. It was the valid judgment of the court, saying that they had brought
themselves under the provisions of that treaty, and were entitled to all rights and privi
leges of it, and therefore that the Cherokee Nation and the United States were forever
enjoined from keeping them out of the provisions of such treaty. The only exception
made was that the person who should make application to go on the roll should not
have forfeited or abjured his citizenship at the date of the entering of the decree. Not
only was this roll made and entered under the decree of the court and approved by the
Secretary of the Interior, but the Cherokee Nation was a participant in its making.
Its representative was present, cross-examined witnesses, with the amplest opportunity
presenting testimony, and contesting the rights of every person claiming to be entitled
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 183
as a freedman to citizenship and rights of the Cherokee Nation. It is therefore estopped
in contesting the right of the claimants to share in the lands and moneys of the Cherokee
Nation. * * *
We do not believe, therefore, that Congress intended by the Cherokee treaty to go
behind that roll, bat even if it did, Congress could not disturb the judgment of that
court.
The reference is to the adjudication in the case of Whitmire, trustee, v. The
Cherokee Nation (30 C. Cls., 138, 180-196). Jurisdiction was conferred upon
that court by the act of October 1, 1890 (26 Stat, 636), among other things —
to hear and determine what are the just rights in law or in equity of the * * *
Cherokee freedmen who are settled and located in the Cherokee Nation under the
provisions and stipulations of article 9 of the aforesaid treaty of 1806, in respect to the
subject-matter herein provided for.
SEC. 2. That the said * * * freedmen shall have a right * * * to begin
and prosecute a suit or suits against the Cherokee Nation and the United States Gov
ernment to recover from the Cherokee Nation all moneys due either in law or equity and
unpaid to the said * * * freedmen, which the Cherokee Nation have before paid
out, or may hereafter pay, per capita, in the Cherokee Nation, and which was, or may be,
refused to or neglected to be paid to the said * * * freedmen by the Cherokee
Nation, out of any moneys or funds which have, or may be, paid into treasury of, or
in any way have come, or may come, into the possession of the Cherokee Nation, Indian
Territory, derived from the sale, leasing, or rent for grazing purposes on Cherokee
lands west of 96° west longitude, and which have been, or may be, appropriated and
directed to be paid out per capita by the acts passed by the Cherokee council, and for
all moneys, lands, and rights which shall appear to be due to the said * * * freed
men under the provisions of the aforesaid articles of the treaty.
This was a jurisdiction to determine the rights in the common tribal prop
erty of the freedmen as a class, and neither in terms nor by necessary impli
cation did it extend to determination of what particular persons composed and
constituted such class, or who were freedmeu.
May 8, 1895, in its opinion (30 C. Cls., 185) the court, after discussion, said:
" The court therefore takes the Wallace roll as furnishing the true number
for the freedmen, 3,524," but this was to be corrected (ib., 188) by the exclu
sion of the dead and of those who had ceased to be citizens and by adding
descendants born after March 3, 1883, and prior to May 3, 1894, and " when
thus amended and changed it shall represent the freedmen entitled to partici
pate in the fund." In the decree (ib., 193) it was adjudged that the "freed
men and free colored persons aforesaid and their descendants are entitled to
participate hereafter in the common property of the Cherokee Nation," etc.
This decree was annulled and another by consent was entered (6th Ann. Rep.
Commission to the Five Civilized Tribes, p. 70), with a paragraph in substan
tially the same terms, but the basis adopted was the Cherokee freedinen's
roll of 1880, prepared by the tribal authorities. That roll was to be corrected
by a commission appointed by the Secretary of the Interior, one member of
which was nominated by the Cherokee Nation. The Kerns-Clifton roll was
prepared by this commission. There was no provision for review by the court
of the proceedings of this commission by appeal or exceptions. On the contrary
this commission was directed to report its roll, not to the court, but to the
Secretary of the Interior, and when it was approved by him the fund in control
of the court was to be paid to the persons borne on that roll.
The effect of an adjudication of right of citizenship to the persons borne on
the Kerns-Clifton roll can be maintained only on the theory that the court
delegated its judicial powers to the Commission and the Secretary of the Inte
rior. A mere statement of this proposition refutes the contention. That a
court can not delegate its judicial power is a fundamental proposition needing
no citation of authority. The right of persons on the Kerns-Clifton, not borne
on the Cherokee 1880 freedmen, roll was never in any sense adjudicated. As
to them, the Kerns-Clifton enrollment was an administrative proceeding or
act simply. It, being a purely administrative proceeding, remained subject to
revision and correction in any manner then or thereafter provided by law.
The court, in Whitmire v. The Cherokee Nation, supra, as part of its original
and final decree, defined the class of persons whose rights were thereby estab
lished and who were to be enrolled by making reference to article 9 of the
treaty of July 19, 1866—
with respect to the rights of said freedmen who had been liberated by voluntary act of
their former owners or by law, and all free colored persons who resided in the Cherokee
country at the commencement of the rebellion and who on the said date resided therein,
or who returned thereto within six months thereafter, and their descendants * * *.
It being understood that the freedmen and their descendants and free colored persons
above referred to shall include only such persons of said class as have not forfeited or
abjured their citizenship of said Cherokee Nation at the date of the entering of this
decree.
184 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
Except in punctuation the definition of the class of persons was clearly in
tended to be a substantial quotation (in past tense) of that in article 9 of the
treaty, so that the treaty provision itself was given to the Commission as guide
for its action, restricted by the added direction as to forfeiture and abjuration of
Cherokee citizenship. Having this precept as a limitation on its powers, the en
rollment of other persons not within the class so defined was in excess of the
powers of the commission and never sanctioned by the court.
The difference of punctuation above noticed, and any construction founded on
the punctuation of article 9 of the treaty, is in the present case immaterial. It
is unnecessary to reenter into a discussion of the proper construction of this
provision of article 9 of the treaty, heretofore fully considered in my opinion of
March 22, 1904, and in that of May 9, 1905, in case of Burrell Daniels. If the
six months' period was applicable to this class, the applicants, as the Commission
find, did not comply with it ; if it was not applicable, they were merely made
Cherokee citizens by the treaty, with " all the rights of native Cherokees," and
became at once liable — without benefit of a six months' period — to operation of
section 2 of article 1 of the Cherokee constitution, if they settled and became
legally domiciled at Lawrence, Kans. If either state of facts be conceded to be
true, it, in nay opinion, follows that the Kerns-Clifton Commission exceeded its
powers in assuming to grant their enrollment.
That enrollment having been, as above shown, an administrative act and not
a judicial one, was subject to review and correction in any manner that Con
gress should by law direct The act of June 28, 1898 (30*Stat, 495, 502), di
rected the Commission to the Five Civilized Tribes that —
It shall make a roll of Cherokee freedmen in strict compliance with the decree of the
Court of Claims rendered the third day of February, eighteen hundred and ninety-six.
Congress confirmed some Indian tribal rolls. It might as easily have con
firmed the Kerns-Clifton roll, and naturally would have done so had it regarded
that roll as either an adjudication of right or even only an accurate roll. In
stead of so doing it directed compilation of a roll in strict compliance with the
terms of the decree. This implies that Congress did not regard the Kerns-
Clifton roll as made in compliance with that decree, else it would have confirmed
that roll, as it did the tribal roll of 1880.
If the facts were conceded to be as stated in the findings, it would follow that
the Commission acted in strict compliance with the direction given by Congress
in the act of 1898, supra. It is represented, however, that, in fact, Tom Riley
returned to the nation in 1800, and some evidence in the record is to the effect
that he left Kansas with the announced intention of returning to the nation as
early as February, 18G6, before the date of the treaty. Since reference of the
case to me a further paper is filed on behalf of the applicants in the nature of
an application for rehearing, which, among other things, represents —
that Tom Riley never established a home or owned any land elsewhere than the place of
his early associations, to wit, in the Cherokee Nation, where he was a Cherokee slave
* * * that the testimony adduced at the original trial tending to show that Tom
Riley resided in the State of Kansas during the years after he returned to the Indian
Territory in the fall of 1800 was procured by undue influence and improper inducements
* * * that the case was not properly presented to the Dawes Commission and was
hurriedly prepared without time for careful consideration and preparation, and also by
reason of the dense ignorance of the applicants.
It is within the discretion of the Secretary, and entirely proper for him to
grant such application.
Very respectfully, FRANK L. CAMPBELL,
Assistant Attorney-General.
Approved August 31, 1905.
THOS. RYAN,
Acting Secretary.
OFFICE OF THE ASSISTANT ATTORNEY-GENERAL,
WasJiinf/ton, D. C., October 5, J90~>.
The SECRETARY OF THE INTERIOR.
SIR : I received by reference of September 15, 1905, the record in case of
Harry Still, applicant for enrollment as a Cherokee freednian. The letter of
reference states that —
It appears that the supreme court of the Cherokee Nation on June 7, 1871, admitted
the applicant to all the rights of Cherokee citizenship entitled under the treaty of July,
1800.
Your opinion is requested as to whether the applicant is entitled to be enrolled as n
Cherokee freedman by reason of the admission of said court.
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 185
The final judgment of an Indian court in a matter of which it had jurisdiction
is as conclusive upon the facts in issue and decided as is that of the Territories,
States, or of the United States. Mehlin v. Ice (56 Fed., 12, 18) ; Exendine v.
Pore (ib., 777) ; Mackey v. Coxe (18 How., 100, 103).
It is, however, not to be overlooked that Congress has plenary power over the
Indian tribes and their regulation of their own membership and internal affairs.
Judgments determining citizenship in an Indian nation are not adjudications of
property rights, but of political status. Being of this character they are within
control of the legislative department of government. In a case depending on a
similar question as to the power of Congress, in Stephens v. Cherokee Nation
(174 U. S., 445, 488), the court held:
But in any aspect we are of opinion that the constitutionality of these acts in respect of
the determination of citizenship can not be successfully assailed on the ground of the
impairment or destruction of vested rights. The lands and moneys of these tribes are
public lands and moneys, and are not held in individual ownership, and the assertion by
any particular applicant that his right therein is so vested as to preclude inquiry into his
status involves a contradiction in terms.
The adjudication of the supreme court of -the Cherokee Nation, upon the
authorities above cited, has therefore the same effect as the adjudication of
similar cases by the United States courts under the act of June 10, 1896 (29
Stat., 321, 339), and is entitled to all the respect of a judicial determination of
the facts necessarily determined. When reopened to inquiry upon the facts, such
adjudication is to be considered by the Commission as evidence of great cogency,
to be followed unless it appear that fraud was practiced upon the court, or that
the evidence then before the court, and that now available before the Commission
show that the conclusion of the court upon the case for fraud or lack of evidence
then available was clearly wrong. The Commission should regard itself rather
as a court reviewing the case as upon a petition for a new trial than as
exercising an original jurisdiction, and ought not to overturn the finding made
after the impairment and loss of available evidence by the lapse of more than
thirty years.
In addition to the direct evidence in the present record of the time of Harry
"Still's personal return to the nation, it is noticeable that some who seem to have
been of the same party or borne on the confirmed roll of 1880 ; that the appli
cant in 1865 could have been but about 14 years old, as his age is stated as
about 50 in 1901 ; that he was then a minor pupilage, whose place of legal
residence was that of his parent or person with whom he lived, and that the
return to the nation contemplated by the treaty was legal domicile rather than
physical presence, as is held in the cases of George Ross, Burrell Daniels,
Charles Foreman, Josie Alberty, and others. If in 1865 the head of the family,
and perhaps himself, were in the nation and fixed a place of abode for the
family, but by reason of lack of subsistence, scarcity of means there to live,
they were unable continuously to remain, and left temporarily, returning sea
sonably and prosecuting that initiated settlement in good faith and with reason
able diligence, then they must be regarded as returning in good faith and
permanently locating in the nation from the time of their original settlement.
Such circumstances and facts the citizenship court had full power to consider,
and the Commission, under the enrollment acts, should also consider. The
determination of those questions by the court favorably to the applicant when
comparatively near the events respecting which it inquired should not be over
turned or disregarded at this later time unless shown to be vitiated by fraud
or clear evidence that it was erroneous.
Very respectfully, FRANK L. CAMPBELL,
Assistant Attorney-General.
Approved October 5, 1905.
E. A. HITCHCOCK,
Secretary.
OFFICE OF THE ASSISTANT ATTORNEY-GENERAL,
Washington, D. C., March 25, 1905.
The SECRETARY OF THE INTERIOR.
SIR : I received by reference of February 27, 1905, the motion for review and
rehearing and accompanying papers in the application of Stonewall J. Rogers
for enrollment of his children, Fannie L., Robert K., Mary L., and Henry C. as
citizens by blood of the Cherokee Nation.
October 14, 1887, Rogers, then aged 21 years, with Henry C., his father, a
186 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
brother, and three sisters, were admitted by the Cherokee national authorities as
citizens by blood of the Cherokee Nation. There is no claim or suggestion that
this was procured by any fraud or was in anywise without authority of law.
Henry C. removed to the nation before December 4, 1894, was on the 1890
census roll, Cooweescoowee district, and died there March 5, 1896. Stonewall J.
did not remove to and locate permanently in the Cherokee Nation until January,
189G. At the time of his admission to citizenship in 1887 he was an express
messenger on the Southern Railway system on a route between Selma, Ala.,
and Cleveland, Tenn. He intended to remove to the Territory to locate perma
nently, and contributed from his wage savings to aid the family in improving
a farm held in common, which has improvements said to be worth $2,000, but
no act indicative of change of his own domicile to the Territory is showi; until
his removal, January, 1896.
July 21, 1892, he married Annie Kelley, a white woman, at Cleveland, Tenn.
His wife remained in Tennessee to care for her mother to her mother's death,
and joined her husband in the nation in the spring of 1899, in the home he had
made for them there.
September 8, 1896, he applied to the Commission for enrollment of himself
and his children, which was denied, and no appeal was taken therefrom. The
record of that proceeding is not before me, and the ground upon which enroll
ment was then denied does not appear. He applied again November IT, 1900,
and November 19, 1900, was denied upon two grounds: (1) That he was
barred by the Cherokee act of December 4, 1894, which required absent citi
zens to permanently locate within the nation by June 4, 1895, and his return
to the nation was not until January, 1896; (2) that he was barred by failure
to appeal from the former action denying his enrollment. Upon a third appli
cation the Commission, May 20, 1902, reviewed and affirmed that action. This
was affirmed by the Department November 6, 1902, and July 20, 1903. a motion
for review was denied. July 30, 1904, the present motion, supported by brief of
counsel, was filed, and with the record is referred to me for opinion.
The point of the motion is that, as Henry C. Rogers, ancestor of the minor
applicants, was borne on the tribal rolls of 1890, and they are his descendants
born since that time, and are entitled to enrollment under section 21 of the act
of June 28, 1898 (30 Stat, 495, 502-503), for enrollment of such persons borne
on the tribal rolls " as may have lawful right thereto, and their descendants
born since such rolls were made."
I am of opinion that this contention can not be sustained. Allegiance of
birth follows that of the immediate ancestor. Where continuity of allegiance
is not maintained through the line of descent, the descendant is not born to the
allegiance of the remote ancestor, as a grandparent, but to that of the parent
at the time of birth. Where expatriation of a nearer ancestor occurs, the con
tinuity of allegiance is broken from that of the remote ancestor, and allegiance
of birth is to the sovereign to whom the allegiance of the nearer ancestor is due.
The right of the minor children of Stonewall J. Rogers must therefore be
determined by that of their father at the time of their birth.
Stonewall J. Rogers was admitted to the allegiance of the Cherokee Nation
and was a Cherokee citizen until the full expiry of the time fixed by the Chero
kee act of December 4, 1894, viz, to and including June 4, 1895, and he did not
forfeit or lose his Cherokee citizenship until that day expired. His children
born to that time were born to the Cherokee allegiance of their father.
The record before me is defective in that the dates of birth of his three older
children are not fixed by the record, but their ages are testified to by him gen
erally on November 17, 1900, as " Fannie L., age 7 years ; Robert K., age 5
years; Mary L., age 11 months." The fourth child, Henry C., is shown by a
birth certificate to have been born " January 31, 1902." It is thus shown that
the two younger children were born after June 4, 1895, when their father was
barred of his citizenship. By break in the continuity of allegiance and ex
patriation of their parent I am of opinion that they can not claim Cherokee
citizenship by virtue of descent from their grandfather, a more remote ancestor
who was a Cherokee citizen.
The oldest child, Fannie L., being aged 7 years in 1900, was born before the
Cherokee act of expatriation of absentee citizens took effect against her father,
and she was born to Cherokee allegiance, as also may have been the second
child, Robert K. The Cherokee expatriation act of 1894 expressly excepted
minors. As to her, and perhaps also Robert K., the act had no effect. She and
perhaps Robert K. have not lost their right, unless barred by failure to appeal
from the adverse decision of the Commission in 1896.
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 187
I am of opinion that the failure to appeal did not bar Rogers's child, or
children, for the reason that the act of admission was a complete recognition by
the nation of Stonewall J. Roger's right and the full equivalent of an entry of
his name upon the tribal roll. The act of inscription on the tribal roll was
merely clerical and ministerial, not the admission itself. When that inscrip
tion was made, or whether or not it ever was made, to all legal intents and
purposes it must be regarded as done when the merits of his application and
his right to enrollment was found and declared, October 14, 1887. To all legal
intent he was then enrolled, and his child or children born while he was yet
in Cherokee citizenship were his " descendants born since such rolls were made."
As in 1896 the Commission had no power to exclude enrolled citizens, they were
without jurisdiction to deny enrollment of such child or children, and the denial
of their enrollment is no bar to the hearing of their case upon the merits.
Very respectfully,
FRANK L. CAMPBELL,
Assistant Attorney-General.
Approved March 25, 1905.
E. A. HITCHCOCK,
Secretary.
OFFICE OF THE ASSISTANT ATTORNEY-GENERAL,
Washington, D. C., December 28, 1905.
The SECRETARY OF THE INTERIOR.
SIR : I received by reference of October 10, 1905, the report from the Commis
sioner to the Five Civilized Tribes of September 25, 1905, stating his inability
to reconcile the decisions of the Department in the Cherokee citizenship cases of
Mary and Roy Strickland, March 17, 1904 (I. T. D., 934 and 21GO— 1904) ; Janu
ary 4, 1905 (I. T. D., 3020—1904), and May 25, 1905, and of Ora M. Bonds, nee
Camp, Mflrch 25, 1903 (I. T. D., 1418—1903). The Commissioner states two
specific points, which he asks may be referred to me for opinion, and requests
instructions thereon, viz :
1. In adjudicating the right to enrollment of applicants who had not reached their
majority on September 1, 1902, arid who, prior to that date, had neither an actual nor a
constructive residence in said nation, what distinction, if any, is to be made between said
applicants admitted to citizenship by an act of the Cherokee national council, commission
on citizenship, or supreme court and those admitted to Cherokee citizenship by the
Dawes Commission under the act of June 10, 1896, as in case of Roy Strickland, supra?
2. In adjudicating the right to enrollment of applicants who during their minority
were duly admitted to Cherokee citizenship, what distinction, if any, is to be made
between those who reached their majority and removed to and permanently located in
the Cherokee Nation within a reasonable time thereafter, prior to September 1, 1902,
and those who on said last-mentioned date were still in their minority and had prior
thereto neither an actual nor constructive residence in said nation?
As to the first request, I am unable to see that any distinction is to be made
in adjudicating the application of persons who were minors September 1, 1902,
between those who base their right upon admission by the tribal authorities
and those who base their right upon admission of the Commission to the Five
Civilized Tribes under the act of June 10, 189G (29 Stat, 321, 339). The Com
mission under that act was clothed with a jurisdiction in matters of citizenship
applications concurrent with that of the tribal authorities, and from decisions
of either tribunal there was a right of appeal to the United States courts. The
tribunals both having concurrent jurisdiction of first instance, I am unable to
see that the decision of either is entitled to the higher credit, there being no
legislation by Congress giving to the decisions of either any greater force or
collusiveness than to the other.
As to the second request, I am unable to see that any distinction is to be
made between adults and minors who failed to locate permanently in the
nation. While minors are excepted from operation of the act of the Cherokee
national council of December 4, 1894, no such exception in their favor has
been made by any act of Congress. The act of June 28, 1898 (30 Stat, 493,
503), among other things provided that " no person shall be enrolled who has not
heretofore removed to and in good faith settled in the nation in which he
claims citizenship." This provision is in the nature of both a limitation and a
condition precedent to the right claimed, and is similar in purpose and effect to
the limitation considered by this office in the opinion of June 8, 1901, in cases
of Nancy B. Smith and Lottie B. Adams. As nothing existed in the legislation
of Congress exempting minors or insane persons from its operation, the limita-
188 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
tion was held to operate upon them. The provision now under consideration is
entirely analogous. It was held operative against adults by my opinions of
December 20, 1903, in case of Allie Williams, and of March 12, 1904, in case of
Mary L. Strickland, and, as to minors that is the necessary implication and
effect of my opinion of June 15, 1905, in the case of Alice L. Owens. The act
of July 1, 1902 (32 Stat, 716, 720) provided:
SEC. 25. The roll of citizens of the Cherokee Nation shall be made as of September
first, nineteen hundred and two, and the names of all persons then living and entitled
to enrollment on that date shall be placed on said roll by the Commission to the Five
Civilized Tribes.
SEC. 26. The names of all persons living on the first day of September, nineteen hun
dred and two, entitled to be enrolled as provided in section twenty-five thereof, shall be
placed upon the roll made by said Commission, and no child born thereafter to a citizen,
and no white person who has intermarried with a Cherokee citizen since the sixteenth
day of December, eighteen hundred and ninety-five, shall be entitled to enrollment or to
participate in the distribution of the tribal property of the Cherokee Nation.
SEC. 27. Such rolls shall in all other respects be made in strict compliance with the
provisions of section twenty-one of the act of Congress approved June twenty-eighth,
eighteen hundred and ninety-eight (Thirtieth Statutes, page four hundred and ninety-
five), and the act of Congress approved May thirty-first, nineteen hundred (Thirty-first
Statutes, page two hundred and twenty-one).
I am of opinion that this does not repeal the provisions above quoted from the
act of 1898. The evident object of the act of 1902 was (1) to continue the
powers of the Commission and (2) to authorize enrollment of persons en
titled by the act of 1898 to be enrolled, and all children of such persons born to
September 1, 1902, of which date the rolls were to be closed.
I am therefore of opinion that the rule established in the decision in the case
of Mary L. Strickland and Allie Williams as to adults, and by necessary in
ference held applicable to children by the opinion of Alice L. Owens, is the
proper one and should be followed.*
Very respectfully, FRANK L. CAMPBELL,
Assistant Attorney-General.
Approved December 28, 1905.
Tuos. RYAN,
Acting Secretary.
PART III.
DIGEST OF DECISIONS RENDERED BY THE DEPARTMENT OF THE
INTERIOR AND THE COMMISSIONER OF INDIAN AFFAIRS
FROM JULY 1, 1904, TO MAY 31, 1906, INCLUSIVE, UPON
APPEALS FROM THE DECISIONS OF THE COMMIS
SION TO THE FIVE CIVILIZED TRIBES AND
THE COMMISSIONER TO THE FIVE
CIVILIZED TRIBES IN ALLOT
MENT CONTEST CASES.
189
DIGEST OF DECISIONS OF DEPARTMENT OF INTERIOR AND COMMIS
SIONER OF INDIAN AFFAIRS, JULY 1, 1904, TO MAY 31, 1906.
ABATEMENT AND REVIVAL — On death of party. (See DEATH, par. 1.)
ABANDONMENT — 1. What constitutes.
When a division fence was removed and placed on a certain line and the
parties on each side of the new line occupied the land as so divided, and
one of them, after a number of years, died, his heirs continuing to occupy
the land on his side of the fence without objection : Held, That the other
party must be held to have abandoned all claim to the land on that side
of the fence occupied by the heirs. (Choctaw No. 331, Nash v. Locke.)
2. Same.
Absence from and noncontrol of a claim for ten years, during which time
the courts were open to the claimant to obtain possession by ejectment
proceedings, must be considered as abandonment. (Chickasaw No. 761,
Gaines v. Daugherty. )
3. Same.
An attempted transfer of and surrender of possession of improvements
on land by a citizen to a noncitizen amounts to an abandonment of the
land by the citizen. (Chickasaw No. 1078, McLaughlin v. Smith.)
4. What constitutes, and effect of.
When a citizen cleared underbrush, in 1887, on 8 acres of a 140-acre tract,
purchased a log house thereon, and then went out of possession and paid
no attention to and did nothing on the land until 1904, and in the mean
time the house burned down and the underbrush grew up, it must be held
that he abandoned the land, and that it became public domain, subject to
appropriation by the first citizen taking possession. (Chickasaw No. 334,
Kemp v. Turnbull.)
5. What constitutes, filing by mistake.
Where a citizen filed on all of the land he is entitled to allot and there
is no mistake on his part in making his selection, he abandons the balance
of the land held by him under improvements and the same becomes public
domain. If his filing was by mistake upon the wrong land, the land
intended to be filed on is not abandoned. (Chickasaw No. 1069, Kaney v.
Kemp. )
6. Of town site, reversion of title.
Upon the abandonment of a town site by noncitizen purchasers of lots
therein the title will revert to the original segregator of the town site.
(Cherokee No. 332, Blackwell v. Parks.)
When laches will amount to. (See LACHES, par. 2.)
ACKNOWLEDGMENT — Of Mil of sale, necessity for. (See BILL OF SALE, par. 1.)
AFFIDAVITS — 1. Necessity of service.
Affidavits filed in connection with an appeal, but not served in accordance
with rule 25, will be suppressed. (Cherokee No. 1439, Con., Downing v.
Adair.)
Use on appeal. ( See APPEAL, par. 13. )
ADMINISTRATORS AND. EXECUTORS— Rclinquishments 'by. (See RELINQUISHMENT,
par. 1.)
AGENT — 1. Acting in his own name does not bind principal.
While no express words are necessary* an instrument executed by an
agent must in some way indicate that he is acting, not individually, but for
his principal, in order that the latter may be bound. (Choctaw No. 424,
Pebworth v. Wright)
191
192 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
AGENT — Continued.
2. Authority of.
In order to support an act done by one person as an agent of another, it
must be shown that the latter authorized the doing of the act or subse
quently ratified it; no one can become an agent except by the will of the
principal. (Choctaw No. 424, Pebworth v. Wright.)
3. Authority to sell.
Evidence which shows that one person was vested with full authority to
transact for another any business with relation to certain land, coupled
with the evidence that he acted as agent for the other in the latter's pur
chase of the land and was at all times subsequently in control thereof, is
sufficient to establish the agent's authority to sell the land to a third party.
(Chickasaw No. 19, Sealey v. Stidham.)
4. Authority of; evidence to establish; declaration of supposed agent.
The declaration of one that he is the agent of another does not create or
establish the relation of principal and agent. (Choctaw No. 424, Pebworth
v. Wright. )
ALLOTMENT — 1. Confirmation of.
Under section G of the act of March 1, 1901, it is held: All allotments
made to Creek citizens by the Commission prior to the ratification of said
act, as to which there is no contest, and which do not include public prop
erty and are not "otherwise affected," are confirmed. (Creek No. 700, Mc-
Intosh v. Ballard.)
2. Designation of.
When a large pasture is transferred and the grantor reserves therein the
right to take an allotment and the location of the land to be so allotted is
not described, the party for whom the allotment is reserved may select from
any lands within the pasture. (Choctaw No. 179, Dillon v. Dillard.)
3. Inconvenience of; location; easement.
The fact that a 10-acre tract is surrounded by land belonging to parties
other than contestant, is not on any highway, and to reach the same con
testant would have to have an easement on the land of contestee, is an ele
ment to be taken into consideration in determining whether the land should
be allotted to the contestant. (Choctaw No. 454, Mayo v. Payte.)
4. Situation of land relative to remainder of allotment.
The fact that the land in dispute is a single 10-acre tract, not contiguous
to the rest of contestant's allotment, but some distance therefrom and
entirely surrounded by other land belonging to contestee and other parties,
is an element to be taken into consideration in making an allotment.
(Choctaw No. 454, Mayo v. Payte.)
5. What considerations to control in making.
Allotments must be made in accordance with the legal rights of the par
ties when they insist upon them, and the fact that a tract of land will
apparently be of no utility to a contestee is no reason to refuse to award it
to him if he is entitled to it. (Cherokee No. 301, Simmons v. Duckworth.)
6. Selection of fractional subdivisions.
Section 12 of the Cherokee agreement (32 Stats., 71G) does not prevent a
citizen from selecting as a portion of his allotment a legal subdivision of
less than 10 acres. (Cherokee No. G41, Trott v. Gilstrap.)
Relinquishment of, after appeal. (See RELINQUISHMENT, par. 4.)
APPEAL — 1. Assignment of error.
The appeal in this case was general. No rulings, proceedings, or other
acts wherein the Commission erred were set out. Held, The better practice
is to set out the errors relied upon. It is not the duty of the Office of
Indian Affairs to hunt through a long record in order to find a reversible
error in the decision of the Commission. (Choctaw No. 404, Colbert v.
McDaniels.)
2. Want of specific assignment of error; dismissal.
An assignment of error that the decision is contrary to the law and the
evidence is not sufficient to sustain an appeal ; it is the duty of litigants to
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 193
APPEAL — 2. Want of specific assignment of error; dismissal — Continued.
set out the specific errors on which they rely for reversal, and they having
failed to do so the appeal will be dismissed. (Cherokee No. 619, con. Kilt-
cliff v. Bird.)
3. Contentions available on; assignment of errors.
A party on appeal can not make a contention not raised at the hearing
and concerning which no assignment of error is made. (Choctaw No. 654,
con. Halsell v. Middleton.)
4. Filed too late; jurisdiction; dismissal.
The Department has no jurisdiction to entertain an appeal which is not
taken within the time prescribed by the Rules of Practice, and such an
appeal will be dismissed. (Chickasaw No. 1G3, Krieger v. Latta ; Chicka-
saw No. 92, Stewart v. Johnson; Chickasaw No. 301, Factor v. Bryant;
Chickasaw No. 498, Factor v. Minims ; Chickasaw No. G39, Sullivan v.
Melville; Chickasaw No. 1383, Halsell v. Quincy ; Choctaw No, 251, Bilbo
v. Belvin; Choctaw No. 343, Morris v. Walker.)
5. Time of takiny, substantial compliance with rule.
When it appears that contestee's last day to file an appeal was February
7, that the appeal was served on the attorneys for the opposite party on
February 4 and mailed on the morning of February 5 at Chickasha, from
whence an afternoon mail departed which, in the natural course of events,"
would bring the appeal to the Chickasaw land office on February G, but
the appeal, in fact, does not reach there until February 8, a substantial
compliance with the rule is shown, and the appeal will not be dismissed
because not filed in time. (Chickasaw No. 23G, Hill v. Reynolds.)
G. Dismissal of, proper practice.
When a party desires to dismiss an appeal taken from the decision of
the Commissioner to the Five Civilized Tribes to the Commissioner of
Indian Affairs, it should be done by a motion to dismiss instead of a
request for an affirmance of the decision of the Commissioner. (Chicka
saw No. 912, Lawrence v. Immotichey.)
7. Dismissal of, by party, relinquishmcnt.
When an applicant, on motion to dismiss his own appeal and relinquish
land, shows that he has 120 acres of other good land lying contiguous to
the remainder of his allotment, and that there is danger that some other
citizen will file on the 120 acres, his motion should be granted. (Creek
No. 772, Tiger v. Gooden.)
8. Dismissal of, on motion of appellant, when alloiocd.
Where it appears that a party who has filed a motibn to dismiss his own
appeal is 27 years old, less than one-quarter blood, capable of attending
to his business affairs, that he has other land which he desires to select,
and that he has been tied up for three years on the contest his motion for
dismissal will be granted. (Cherokee No. 3, Tucker v. Blackstone. )
9. Dismissal of, on motion of appellee.
When a motion for the dismissal of an appeal is filed by the appellee on
the ground that the original application was made for him when he was
a minor, and that he has become of age and wishes to relinquish the land
and take other land in its place, the motion will not be granted when it
appears that after attaining his majority he made a deed to the land and
received a portion of the consideration therefor, though said deed was
absolutely void. (Cherokee No. 1439, con. Downing v. Adair. )
10. Dismissal of, by party, wlicn alloiccd.
When the contestee files a motion for the dismissal of his own appeal,
accompanied by an affidavit showing that he can read and write, under
stands the purport and effect of his motion, and files it of his own accord,
the motion will be granted. (Chickasaw No. 40, Freeny v. Dillard.)
11. Motion for dismissal of, how verified.
Where a motion to dismiss an appeal is made for a minor, said motion
should be signed and sworn to by the father and natural guardian of the
minor ; if the father is a full-blood Indian and unable to read the English
33753—06 M 13
194 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
APPEAL — 11. Motion for dismissal of, how verified — Continued.
language, the motion should he thoroughly explained to him in the presence
of witnesses, and there should he attached thereto the affidavit of said
parent to the effect that said motion had been fully explained to him, and
that he understood thfl nature, contents, and effect thereof. (Chickasaw
No. 912, Lawrence v. Immotichey.)
12. Evidence considered on.
The Department will not consider on appeal the evidence in another case,
not by stipulation of the parties or otherwise made a part of the record in
the cause under consideration. (Cherokee No. 3G1, con. Kerr v. Shell.)
13. What considered upon, affidavits.
The only office of an affidavit after the trial would be in support of some
motion, and one can not be used in support of an appeal, as that would
amount to putting evidence before the Department which was not presented
at the original hearing. (Cherokee No. 1439, con. Downing v. Adair.)
14. Objection available on.
No objection can be raised on appeal not based upon facts which appear
In the record. (Creek No. 803, Trent v. Watson.)
15. Position inconsistent with that on trial.
When upon the trial of a cause contestees claim title to the land
through a purchase of all the improvements from the father of minor con
testant, and admitted that that was the only right they had in the land,
they can not be heard on appeal to claim that a portion of the land was
public domain. (Choctaw No. 278, Harris v. Smith.)
16. Waiver of time in ivhich to file.
The rules of practice as to time of filing an appeal can not be waived
by stipulation of attorneys. (Choctaw No. 92, Stewart v. Johnson.)
17. Appealable orders.
Appeal does not lie from an- order denying a motion for review. (Creek
No. 203, Smith v. Cully.)
18. Same.
An order denying a motion for rehearing is an interlocutory order and is
not appealable. (Chickasaw No. 29, Askew v. Sharp.)
19. Same.
No appeal lies from orders denying motions for review or rehearing, as
such orders are interlocutory and not final. (Creek No. 360, Gentry v.
Graves.)
20. Same.
Orders granting or denying motions for review, rehearing, and to vacate
and set aside judgments are interlocutory in their nature and are not
appealable. (Chickasaw No. 169, Ingram v. Wiltsey.)
21. Same.
An order denying a motion to set aside and vacate judgment as void, on
the ground that no service was obtained on the minor contestee, is appeal
able. (Chickasaw No. 169, Ingram v. Wiltsey, Secretary's decision.)
22. Same.
An order granting or denying a motion for rehearing or review is not
appealable. The citizen's remedy is by appeal from the decision sought to
be reviewed or reheard. (Chickasaw No. 446, Runton v. Merryman.)
When objections available on. (See WITNESS, par. 5.)
APPEARANCE — 1. Of contestant at trial, necessity for.
The failure of contestant to appear at the trial, unless satisfactorily ex
plained and excused, is fatal to his contest, and the same may legally be
dismissed. (Choctaw No. 552, Colbert v. Lewis.)
2. General, waiver defect in service.
The general appearance of an attorney for a party, on a motion for
review, constitutes a waiver of a defect in or lack of service of the motion
on said party. (Chickacaw No. 187, Watkius v. Goodiiig.)
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 195
APPLICANT — 1. For citizenship, rights of, transfer by.
An applicant for citizenship, until finally rejected, may hold and dispose
of a good title to improvements on tribal lands. (Chiekasaw No. (539,
Sullivan v. Melville; Choetaw No. 413, Hudson v. McKinney ; Choctaw No.
431, Thompson v. McKinney.)
2. For citizenship, right to transfer improvements pending final determina
tion.
A court claimant whose admission to citizenship was vacated by the
citizenship court, but who afterwards had his case certified to the latter
court, retains his status as an applicant for citizenship until the final
determination of his rights, and a transfer made by him a month before the
final determination is as effectual to convey title as would be the transfer
of an enrolled citizen. (Chiekasaw No. 197, Jacobs v. Townsley.)
3. For citizenship, transfer by.
An applicant for citizenship may convey a good title to improvements to
the contestant subsequent to contestee's filing, although he is thereafter
finally rejected. (Chiekasaw No. 197, Jacobs v. Townsley.)
4. Mississippi, Choctaw, holding hinds and transferring same.
An applicant for identification as a Mississippi Choctaw has a right
pending determination to hold land and his transfer of the same conveys
good title. (Choctaw No. 127, Jennings v. Lester.)
ARBITRATION AND AWARD — 1. Effect of.
Lands were indefinitely described in a transfer and a dispute arose as to
the location thereof. A written agreement to arbitrate the matter was
entered into between the parties, and arbitrators were appointed and after
examination awarded the land to purchaser, who subsequently made appli
cation to file thereon. Held, That said purchaser had established his right
to the land, and the contestee, having acquired such rights as he may have
to said land subsequent to said arbitration, takes same subject thereto.
(Chicasaw No. 493, Colbert v. Frazier.)
ASSIGNMENT OF ERRORS — Necessity for. (See APPEAL, pars. 1, 3.)
Must he specific. (See APPEAL, par. 2.)
ATTORNEY AND CLIENT — 1. Authority of attorney to represent client.
When it fairly appears that a litigant does not desire to institute or con
tinue litigation, the case is a proper one in which to require the attorney to
exhibit his authority. (Choctaw No. 431, con. Thompson v. McKinney.)
2. Privileged communication. *
An attorney is incompetent to testify in regard to any information
obtained by him in his professional capacity without the consent of his
client. This is not a personal privilege of the attorney, but rests upon the
ground of public policy. (Chiekasaw No. 1069, Kaney v. Kemp.)
BILL OF SALE — 1. Necessity for witnesses and acknowledgment.
The fact that a bill of sale is not witnessed or acknowledged does not
invalidate it if otherwise legal, and between the parties thereto it is bind
ing. (Chickasawr No. 821, Folsom v. Victor.)
2. Description of property, what governs.
In determining upon what land improvements are conveyed, a description
of the land by metes and bounds will govern a recital as to the acreage
of the land affected by the bill of sale. (Cherokee No. 428, Baldridge v.
Thornton. )
BURDEN OF PROOF — 1. To establish agency.
The land was found to be in possession of Leah Robinson, who was the
owner of the improvements thereon. Contestant contends that the improve
ments were given to him by Zack Cook, the father of Leah Robinson, and
that Zack Cook had authority to dispose of the land and improvements.
Held, It is incumbent upon him (contestant) to show that Zack Cook was
authorized to act for Leah Robinson, and that he acted within the scope of
his authority, (Creek No, 597, Deer v. Sawyer.)
196 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
BURDEN OF PROOF — Continued.
2. To establish correct description.
When improvements are sold on land described other than by legal sub
divisions, the burden of proof is on the purchaser to show that the land
described is other than that stated by the vendor. (Cherokee No. 121, Akin
v. Landrmn.)
3. On which party.
Where it is uncontroverted that contestant's father once owned and was
in possession of the improvements on the land in controversy, the burden
of proof shifts to the contestee to show that contestant's father sold or
relinquished the land to the contestee or his grantor. (Cherokee No. 362,
Garrett v. Thomas.)
To establish excessive holdings. (See EXCESSIVE HOLDINGS, par. 3.)
Of rescission of contract. (See CONTRACT, par. 2.)
CHICKASAW FREEDMEN — 1. Rights of ; possession by.
Chickasaw freediuen not in the actual possession of land at the time of the
Atoka agreement could not claim constructive possession by virtue of the
possession of their deceased mother. (Chickasaw No. 9, Trahern v. Rus
sell; Chickasaw No. 838, Trahern v. Russell.)
2. Right to hold and allot land.
Under the decision of the Supreme Court of the United States in the case
of the United States v. The Choctaw and Chickasaw Nations, and Chicka
saw Freedmen v. the same (103 U. S., 115) upon the ratification of the
Choctaw and Chickasaw Supplemental Agreement on September 25, 1002,
the Chickasaw freedinen became entitled to their share of the land in the
Choctaw and Chickasaw nations, subject to said agreement ; and a freed man
who had improved lands prior to September 25, 1002, and was in possession
of them on that date, was entitled by said act to select the same in allot
ment. (Chickasaw No. 240, con. Love v. Rennie.)
3. H old-in y land by tenant.
The lani in controversy was held by a Chickasaw frcedman, being in the
actual possession of his tenants. Contestee filed on the land as public
domain, and contended that Chickasaw freedinen have only the right to
occupy and hold a tract of land which, by cultivating the same personally,
will enable them to support themselves and families, and have no right
to hold land except for that purpose. Held, That the possession of a Chick
asaw freedman by tenant secures to him the same rights in land as though
he were personally hi possession of it. (Chickasaw No. 249, con. Love v.
Rennie.)
4. Right to alienate.
Under the decision of the United States Supreme Court in the matter of
Chickasaw freedinen (103 U. S., 115) the latter, while possessing under the
act of June 28, 1808, the right to hold improvements for the allotments of
themselves and families had no right under said act to transfer such
improvements, and such a transfer conveys no interest in the land. (Chick
asaw No. 274, Alexander v. Wright.)
5. Rights of.
By decision of the Supreme Court in the matter of the rights of Chickasaw
freedinen (103 U. S., 115) it was held that such freedinen had, inde
pendently of the act of July 1, 1002 (32 Stat L., G41) no right to share in the
lands of the nation. The provisions of that act, to preserve the rights of
such freedinen in lands on which they owned improvements, secured to them
the right to take in allotment only the lands on which they owned improve
ments at the date of the Atoka agreement. (Chickasaw No. 1305, Faure v.
Christian.)
Rights of. (See STATUTES, par. 2.)
CHICKASAW LAND — 1. How affected by changing of ninety -eighth meridian.
After promulgation of the notice of June 0, 1000, relative to the reestab-
lishment of the ninety-eighth meridian, west longitude, whereby the bound
ary line between the Kiowa-Comanche country and the Chickasaw Nation
was changed, the citizen of said Chickasaw Nation first taking possession of
lands which thereby became a part of the lands of said nation and being
LAWS AFFECTING THE FIVE CIVILIZED TKIBES. 197
CHICKASAW LAND — 1. How affected by changing of ninety-eighth meridian —
Continued.
the first to apply to have said lands set apart to him, acquired the right to
select said lands as a portion of his allotment. (Chickasaw No. 28, Keno v.
Fillmore.)
CONDITIONAL GIFT — 1. Effect of.
A father made a gift of land to his son on condition that if the father
survived the son the land should revert to the donor. Held, That it was
not within the power of the son to make a gift of the land which would
be effectual as against the father in case the latter survived the son.
(Chickasaw No. 16, Hays v. Brashears.)
CONDITIONAL SALE — 1. Performance of conditions.
When the vendee in a conditional bill of sale or deed has in good faith
performed all of its conditions, the sale can not be rescinded by the vender.
When one of the conditions of such a sale was that the vendee should
cause a tract to be subdivided into blocks and lots and should sell the lots
and give vender a certain percentage, he sufficiently complies with the
conditions if he subdivides the land and offers the lots for sale, though,
through no fault of his own, no sales are made. (Chickasaw No. 29,
Askew v. Sharp.)
CONFESSION OF JUDGMENT — 1. After appeal, when allowed.
When, after an appeal by the contestee, a motion to confess judgment is
filed by the contestant, in which it appears that since the trial of the cause
contestant has married; that the application for the land was made for her
by her mother while she was a minor ; that she never wanted the land in
controversy; and that she desires to file on other land given her by her
brother, and both she and her husband swear that they have not been
induced to confess judgment by fear, intimidation, compulsion, or reward,
the showing is sufficient, the motion to confess judgment should be allowed,
and the appeal dismissed. (Cherokee No. 1139, Wilson v. Hart.)
CONSENT — 1. By oicncr to another's filing, effect of.
When one citizen who owns improvements on land consents to the filing
thereon by another, he loses all interest in and any title to the land, and
can not by a subsequent transfer to a third party, convey any interest in
the land. (Cherokee No. 3G1, con. Kerr v. Shell.)
2. To another'* fining, consideration for.
The prospect for avoiding proceedings for excess holdings which it was
feared could not be successfully defended is sufficient consideration for the
consent from an excess holder that another citizen may file upon his hold
ings before certain members of the family of the excess holder were filed.
(Chickasaw No. 1324, Alexander v. Stidham.)
CONSIDERATION — 1. Insufficiency of.
Contestant held not to be lawfully in possession and not a bona fide pur
chaser under a sale contract with a noncitizen where the sole consideration
passing through the vender was use of the land for two years. (Creek
No. TOO, Mclntosh v. Ballard.)
2. Inadequacy of, how established.
The inadequacy of consideration can not be established by showing that
the grantor could have sold for more. (Chickasaw No. 74, Oliver v.
Chandler.)
,°>. Valid, what constitutes.
A consideration that benefits a grantor by discharging a debt owed by
him to a third party is a valid consideration. (Chickasaw No. 74, Oliver v.
Chandler.)
CONTINUANCE — Discretion of Commission as to. (See DISCRETION, par. 2.)
CONTRACT — 1. Rescission of, consent by vendee, what constitutes.
The fact that the vendee retains a note for the purchase-price which the
vendor has sent him accompanying a request that the vendee return the
bill of sale, where it appears that the vendor had already attempted to sell
the property to another for a higher price was acting in bad faith and gave
198 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
CONTRACT — 1. Rescission of, consent by vendee, what constitutes — Continued,
a false reason for rescinding the sale, does not amount to a consent on
the part of the vendee that the contract of sale be rescinded. (Choctaw No.
523, Barrows v. Welch.)
2. Rescission of, burden of proof.
When the making of a contract is admitted the burden of proof on the
question of rescission of that contract is on the party claiming that the
contract was rescinded. (Choctaw No. 523, Barrows v. Welch.)
3. Rescission of, right to.
A vendor in a contract of sale has no right to rescind the contract on
account of the failure of the vendee to pay the first installment of the
purchase price when the vendor subsequently accepts horses and a wagon,
which it was agreed should constitute the second installment, and con
verts the same to his own use. (Cherokee No. 527, Grimmett v. Dawson.)
4. For sale of timber, not enforceable.
Under section 15 of the act of July 1, 1902 (32 Stats., 041) a contract
for the sale of pine timber, if made by an allottee or applicant for land,
wTould be void and unenforceable. (Choctaw No. 5G5, Moore v. McKinney. )
5. Repudiation of.
A contract being valid and binding neither party thereto can disaffirm
or repudiate it. (Chickasaw No. 74, Oliver v. Chandler.)
6. Nonpayment of installments due on.
Where the vendor in a contract of sale makes a subsequent bill of sale of
the same property to a third party before certain installments on the first
bill of sale become due the vendee therein need not pay the said install
ments in order to protect his rights. (Cherokee No. 527, con. Grimmett
v. Dawson.)
7. Variance of written, by parol evidence.
It is a general rule of the law of evidence that a written contract not
ambiguous in its terms can not be varied, modified, or contradicted by
parol evidence of anything that occurred at or prior to the time that said
contract was executed. (Chickasaw No. 74, Oliver v. Chandler.)
CONVEYANCE — 1. Effect of; notice of prior.
September, 1900, A. C. Messick, an undetermined citizen, conveyed by
deed to his stepson, Riley Davis, the land in suit, and said Riley Davis was
placed in possession. Messick becoming dissatisfied with this transaction,
and finding the above-mentioned deed, burned same in April, 1901, and
dispossessed Davis. Messick then, on April G, 1901, conveyed the land in
suit to contestant, who purchased the " Indian title " thereto from another
supposed claimant, after her agent had knowledge of the adverse claim of
Davis. Held, Evident that contestant, Susan Harris, took such title as
she acquired under these conveyances with full knowledge of the claim
made by Riley Davis. Contestant having acquired her title through A. C.
Messick, who, prior to his conveyance to her, had conveyed some lands to
Riley Davis, a Choctaw citizen, it follows that Riley Davis, having ac
quired through the same source a previous title to said lands, and having
first applied for same, his selection should not be disturbed. (Chickasaw
No. 59, con. Harris v. Davis.)
CORPORATION — 1. Right to hold and transfer improvements.
A corporation has no right to hold improvements on tribal lands and can
.convey no title or right thereto by an attempted transfer. (Chickasaw No.
1078, McLaughlin v. Smith.)
COURTS — Action not binding on Commission. (See JURISDICTION, par. 1.)
DEATH — 1. Of party to contest, effect of.
When one party to a contest dies while the action is pending, all pro
ceedings taken thereunder subsequent to his death are irregular and errone
ous. (Chickasaw No. 19, Sealey v. Stidhain.)
2. Procedure.
When it appears that a party to a contest is dead, his heirs should be
given notice and the cause continued as to them. (Chickasaw No. 19,
Sealey v. Stidhain.)
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 199
DECLARATIONS — Of grantor, competency as evidence. (See EVIDENCE, par. 5.)
DEED — 1. Void, abandonment of land ~by grantors.
Where citizens execute a so-called quitclaim deed which has no grantee
named therein, and no title therefor passes to any citizen, and the citizen
grantors abandon all interest in the land, it is not error to find that the
land described in the purported conveyance reverted to the public domain.
(Chickasaw No. 460, Stallaby v. Ebisch.)
2. Parol evidence to vary.
A deed showed that it was drawn by a competent person, who is pre
sumed to have embodied in the instrument the agreement of the parties.
Held, That no oral evidence can be allowed to vary, alter, or enlarge an
instrument which was in all respects regular on its face. (Choctaw No.
127, Jennings v. Lester.)
Description of property. (See BILL OF SALE, par. 2.)
DELIVERY — 1. Of deed; evidence of.
The testimony showed that a certain deed to McD. was turned over to M.
The deed wras not acknowledged, neither M. nor any other member of his
firm went on the stand, and McD.'s testimony as to the delivery of the deed
to him was contradictory and merely an expression of opinion. M., the
seller, was McD.'s attorney, and as a matter of accommodation had in his
custody other papers belonging to McD. Held, That under the latter cir
cumstances the physical possession of the deed by M. was inconclusive on
the question of delivery. On the whole evidence the contestant had failed
to show affirmatively the delivery of the deed to McD. (Chickasaw No.
1575, con. Fisher v. Pebsworth.)
DELAWARE — 1. Rights to liold land; excessive holdings.
By virtue of the acts of April 21, 1904, and March 3, 1005, a Delaware
Indian did not become subject to be declared an excessive holder until about
September 3, 1905. (Cherokee No. 361, con. Kerr v. Shell.)
DESCENT AND DISTRIBUTION — 1. When statute of Arkansas became applicable.
The statute of descent and distribution of Arkansas was put in force in
the Indian Territory by the act of June 7, 1897 (30 Stat, 62-83.) (Chick
asaw No. 16, Hays v. Brashears.)
2. Property acquired from father.
Upon the death of a son who had acquired the occupancy of lands from
his father and who leaves no descendants the son's interests in the lands
ascend to the father. (Chickasaw No. 16, Hays v. Brashears.)
3. Rights of children.
In the Indian Territory lands and property of an intestate descend, sub
ject to the payment of debts, to the children of the intestate. Children
should be allowed to select for allotment the improved land of their
ancestor when such equitable right has not been forfeited by the action of
the children themselves. (Choctaw No. 278, Harris v. Smith.)
4. Husband and wife.
An unrecognized citizen can not inherit property in the Choctaw or Chick
asaw nations from his citizen wife.
A surviving husband or wife can only inherit the interest of said deceased
wife or husband in an estate owned by the latter before marriage and can
not acquire sufficient title to defeat the interest of the minor heirs in said
estate which was vested prior to last marriage. (Chickasaw No. 72, Oliver
v. Scroggins.)
DILIGENCE — 1. In prosecution of contests.
An unexcused failure to serve a copy of notice of contest on contestee is
a lack of diligence on the part of the contestant (Choctaw No. 552, Col
bert v. Lewis.)
DISCRETION — 1. Of Commissioner to the Five Civilized Tribes.
The manner of conducting hearings, questions of granting or refusing con
tinuances, and the many matters of procedure rest very largely in the sound
discretion of the Commissioner, and such discretion will not be interfered
with MM appeal except on an affirmative showing that it has been abused.
(Creek No. 803, Trent v. Watson.)
200 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
DISCRETION — Continued.
2. Of Commission; continuance of cause.
The matter of granting or refusing a continuance is one which rests
in the sound discretion of the Commission and over which the Department
exercises no control except on an affirmative showing of an abuse of dis
cretion. (Cherokee No. 325, Ross v. Leerskov.)
3. Abuse of, ichat is.
When it appears that the party asking for a continuance of a cause
called and examined ten witnesses upon the trial, and that the testimony
of the witnesses whom the party might obtain by a continuance would
be cumulative, there was no abuse of discretion in refusing a continuance.
(Cherokee No. 325, Ross v. Leerskov.)
Of Commission; division of 10-acre tracts. (See DIVISION, par. 4.)
Of Commission. (See REINSTATEMENT, par. 1.)
DISMISSAL — For failure of contestant to appear. (See APPEARANCE, par. 1.)
By party of Jiis oirn appeal. (See APPEAL, pars. 0, 7, 8, 1), 10, and 11.)
DIVIDING LINE — 1. Effect of, and lioic far binding.
One Thompson and contestee, about fifteen years ago, agreed that a cer
tain creek should be the dividing line between their respective holdings.
Thompson sold to Griggs and Griggs sold to contestant. Contestant
remained in possession of the Thompson place for five years, when con
testee crossed the creek and in a hurried manner erected a fence on con
testant's side thereof. Held, That the agreement between Thompson and
contestee was common knowledge in the neighborhood and was binding,
and that the creek should be the dividing line. (Choctaw No. 336, Nash
v. Oakes.)
DIVISION — 1. Of allotment, when made.
When a 20-acre tract, containing valuable improvements of both parties,
can be divided so as to give to each the land on. which his most valuable im
provements are located, such a division is equitable and should be made.
(Choctaw No. 331, Nash v. Locke.)
2. Of a 10-acre tract.
Under certain circumstances, as in cases where the land adjoins a town
site, a 10-acre tract will be divided so as to allow each party his improve
ments. This is not prohibited by section 12 of the Cherokee treaty
(32 Stat, 71G). (Cherokee No. 1591, La Hay v. Deiiton.)
3. Of a 10-acrc tract; value of land.
In determining whether a 10-acre tract should be divided no considera
tion need be given to the fact that the location of the land— near a town
site — greatly increases its value. (Choctaw No. 858, Hampton v. Bilbo.)
4. Of a 10-acrc tract; discretion of Commission.
Section 18 of the Choctaw and Chickasaw agreement (32 Stat, 041)
provides that the Commission shall not be required to recognize a smaller
division than 10 acres. Held, That a division of such tract into smaller
tracts is a matter resting in the sound discretion of the Commission.
(Choctaw No. 858, Hampton v. Bilbo.)
5. Of a 10-acrc tract, icJien proper to refuse.
When contestant's improvements cover some 3 acres and were of the
value of $1,250, and contestee's cover some 7 acres and were of the value
of only $25, it is not an abuse of discretion to award the entire 10-acre tract
to contestant. (Choctaw No. 858, Hampton v. Bilbo.)
Of allotment, improvements owned l)y both parties. (See IMPROVEMENTS,
par. 17.)
EAPEMENT — To be avoided in making allotments. (See ALLOTMENT, par. 3.)
ELECTION OF REMEDIES— 1. What constitutes.
The bringing of an action to enforce a vendor's lien, which action is
held to be not maintainable, does not constitute an election on the part of
the plaintiff in the vendor's lien suit to affirm the sale of the land to
defendant, or a waiver of the conditions of the escrow into which the deed
to the land was delivered. (Chickasaw No. l(j, Hays v. Brashears.)
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 201
ENCLOSURE — 1. Natural barriers.
A river may be considered as part of an inclosure when it is sufficient
barrier for cattle. (Creek No. 832, Porter v. Haikey.)
Made by improvements of several owners. (See IMPROVEMENTS, par. 18.)
ESCROW — 1. Deed delivered in, effect of.
No title passes under a deed delivered in escrow until the conditions of
the escrow agreement are complied with, and the taking of possession of
the land by the grantee does not constitute a waiver by grantor of the
conditions of the escrow. (Chickasaw No. 1G, Hays v. Brashears.)
2. Effect of.
If a deed delivered to a third party who has paid the consideration was
delivered in escrow, the grantee in the deed is free to decline to take the
land after examination thereof. (Chickasaw No. 1575, con. Fisher v.
Pebsworth. )
ESTOPPEL — 1. When it arises.
When a party claiming or having an interest in property permits another
to appear as the owner, he will be estopped to deny the ownership of such
person as against a third party who, relying on his silence, has purchased
or acquired the interests of the person who was allowed to appear as the
owner. (Clioctaw No. 549, Page ». Andrews.)
2. Same.
When contestant and his grantors had remained in possession of land for
nine years, during which they made valuable improvements, and the con-
testee knew of such possession and the fact that those in possession claimed
ownership of the land, and daring all that time made no effort to legally
establish bis rights, he is not in a position to dispute contestant's ownership
and confiscate the improvements so made without interference or legal ob
jection. (Chickasaw No. 03, McKinney v. Perry.)
3. Upon wliom 'binding.
Tom Terrell inclosed and cultivated a couple of acres of the 30-acre
tract in contest. Contestant subsequently incloses remainder of land under
agreement with Terrell that contestant shall be permitted to allot same.
Subsequently Terrell's widow sells Terrell's place to contestee : Held,
Contestee bound by acts of his grantor ; Terrell having recognized contestant
as owner of possessory right to controverted land, is not entitled to any
of said land by reason of owning prior improvements. (Cherokee No. 138,
con. Cochran v. Taylor.)
Of tenant to deny landlord's title. (See LANDLORD AND TENANT, pars.
12, 13, 14.)
EVIDENCE — 1. Sufficiency of, to establish transfer.
The statement of the parties that a verbal transfer was made by the
husband to bis wife in 1875 is insufficient evidence to establish such trans
fer. (Cherokee No. 20, Barlow v. Brown.)
2. Competency, certified copy of will.
A copy of a will, duly authenticated by the hand and act of the clerk of
the probate court having custody of the will, is entitled to be received in
evidence in the absence of a specific objection thereto. (Chickasaw No.
230, Hill v. Reynolds.)
3. Competency, unacJcnoirlcdged release of land.
An instrument purporting to be a release of contestant's rights in land,
but which is not acknowledged, and is supported by.no other evidence to
establish its execution, is not admissible to prove a release of the land.
(Cherokee No. 143, Lynch v. Kerr.)
4. Failure to produce.
Where the verbal testimony is directly in conflict and one party swears
that there is documentary evidence to corroborate him, but fails to produce
the documents or account for their absence, the inference is that he can
not do so and that his version is incorrect (Chickasaw No. 1007, con.
Potts v. Kelly.)
202 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
EVIDENCE — Continued.
5. Compentency, declaration of supposed grantor.
On the issue as to whether certain lands which were part of an excessive
holding were transferred to contestant prior to contestee's filing, evidence
of the declaration of the supposed grantor, made after contestee's filing,
to the effect that he intended to allot the land for his minor child, is com
petent and admissible as evidence. (Cherokee No. 1020, Choate v. Nave.)
Available on appeal. (See APPEAL, pars. 12, 13.)
Declaration of agent. (See AGENT, par. 4.)
Privileged communication. (See ATTORNEY AND CLIENT, par. 2.)
Disqualification of witnesses. (See WITNESSES, pars. 1, 2, 8, 5.)
Of execution sale. (See EXECUTION SALE, par. 2.)
Objection to, when deemed abandoned. (See OBJECTION, par. 1.)
Public survey, conclusivencss. (See SURVEY, par. 1, 3.)
Of transfer. (See TRANSFER, par. 1.)
Judgment as. (See JUDGMENT, par. 4.)
EXCESSIVE HOLDER — 1. Notice to.
Even if the contestant wras an excessive holder, the contestee had no
right to file upon any land in the possession of contestant without giving
the latter notice, as required by the "regulations as amended April 7, 1899.
(Creek No. 722, Woodward v. Wiley.)
2. Transfer of part of holding, effect on remainder.
The fact that an excessive holder transferred a large amount of other
land before selecting the land in controversy for his minor child did not
make the land in controversy public domain. (Chickasaw No. 104, Lane ?;.
Apala.)
3. Transfer by.
The rights of a citizen claiming to own improvements on more land than
he is entitled to take in allotment are purely personal, and he can not con
vey title to another citizen as against one who is in possession of the land.
(Chickasaw No. 104, Lane v. Apala.)
4. Selection of allotment by, effect of.
When an excessive holder has selected the allotments for his family and
has determined which land he will take for himself when he is approved,
the balance of the excessive holdings becomes public domain. (Chickasaw
No. 821, Folsom v. Victor.)
5. Transfer by.
A bill of sale from a citizen who has completed the allotments to which
his family are entitled and has selected the land upon which he intends to
file is invalid and conveys no title. (Chickasaw No. 821, Folsom v. Victor.)
6. Right to transfer after selection by another.
The Curtis Act was not intended to give illegal holders any vested or other
right to dispose of their illegal possessions to the exclusion of other members
of the tribes who have entered upon and selected their pro rata share prior
to any attempted transfers by those whose possessions are in excess of their
pro rata shares. Citing Grissom v. Gibson, Com. Rep., 1901-2, page 137.
(Creek No. 759, Burnette v. Berry.)
Holding for adopted child. (See Loco PARENTIS, par. 1.)
EXCESSIVE HOLDINGS — 1. What constitutes.
It is unlawful under the act of June 28, 1898 (32 Stats., 495), for nny
citizen of any of said tribes to inclose or in any manner, by himself or
through another, directly or indirectly, to hold possession of any greater
amounts of lands or the property belonging to any such nation or tribe than
that which would be his approximate share of the lands belonging to such
nation or tribe, and that of his wife and minor children as per allotment
herein provided. (Creek No. 759, Burnette v. Berry.)
2. Same.
Any land held by a citizen beyond that he is entitled to select for himrvlf,
his wife, and family is an excessive holding. Grandchildren are not mem-
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 203
EXCESSIVE HOLDINGS — 2. Same — Continued.
bers of a family within the meaning of this rule. (Creek No. 759, Bur-
nette v. Berry.)
3. Burden of proof to show.
When the contestant is charged with excessive holdings, the burden of
proof is on contestee to show that fact. (Creek No. 722, Woodward v.
Wiley.)
4. Determination of, necessity of notice.
It is not the intention of the Department to place the decision of the ques
tion of excessive holding, or whether improved land is public djmain, in the
hands of » litigants ; in case one is found to be an excessive holder the
proper practice is to give the holder an excessive holding notice as provided
by statutes. (Chickasaw No. 1069, Kaney v. Kemp.)
5. Filing on by third party, necessity of notice.
A citizen is not legally competent to determine for himself whether a
holding is excessive, and he can not acquire the right to file on the holding
of another without giving the holder notice of his intention, as required by
the regulations, in order that the question may be determined by the Com
mission. (Cherokee No. 3G1, con. Kerr v. Shell.)
C. Transfer of.
Transfer of an excessive holding after the holder has selected the allot
ments for himself, his wife, and family, conveys no title. (Creek No. 759,
Burnette v. Berry.)
7. Rights of head of family.
A citizen is not an excessive holder if he holds in his own name no more
land than he, his wife, and children are entitled to hold ; it is not neces
sary that the separate holdings on behalf of each should be in their respec
tive names. (Cherokee No. 361, con. Kerr v. Shell.)
8. Of minor, duty of guardian.
Under the act approved July 1, 1902 (32 Stat, 641), it was not only
the privilege, but the duty of a guardian to sell, within the ninety days
limited therein, the improvements on lands owned by his wards in excess
of their allotment share. (Chickasaw No. 236, Hill r. Reynolds.)
9. Purchase of.
Contestee attempted to purchase from Mary T. Ellis, who at the time
she executed conveyance in favor of contestant had taken allotments for
herself and children elsewhere: Held, That Mary T. Ellis had no title and
contestee obtained no rights from her. (Choctaw No. 42, Freeny v. Dillard. )
10. When public domain.
When the contestee filed, the land in controversy, valued at $492.50.' was
in the possession and control of a citizen who had selected all but $16.28
of his allotment: Held, That the land was an excessive holding and had
the character of public domain at the time that contestee filed. (Choctaw
No. 497, Robinson v. Bully.)
11. After completion of allotments.
When the members of two families had practically completed their allot
ments from a large inclosure, and there remained considerably more than
80 acres of unallotted land, the latter became public domain, subject to be
selected by the first person applying therefor. (Cherokee No. 641, Trott v.
Gilstrap.)
12. Filing on by third party, Necessity of notice.
A citizen is not legally competent to determine for himself whether a
holding is excessive, and he can not acquire the right to file on the holding
of another without giving the holder notice of his intention, as required
by the regulations, in order that the question may be determined by the
Commission. (Cherokee No. 361, con. Kerr. v. Shell.)
13. Transfer of, lacJc of good faith.
An alleged transfer from an excessive holder, which is intended to defeat
the provisions of section 18 of the act of July 1, 1902 (32 Stat., 71(5) , does
not convey to the vendee any title or right of possession to the land.
(Cherokee No. 1020, Choate v. Nave.)
204 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
EXCESSIVE HOLDINGS — Continued.
14. Transfer of, after contcstee's filing.
A conveyance of part of a tract, which constitutes an excessive holding,
made after the contestee's filing, does not give the vendee a prior right to
select the land. (Cherokee No. 041, Trott v. Gilstrap.)
Improvements on, mere personal property. (See IMPROVEMENTS, par. 26.)
By Delaware. (See DELAWARE, par. 1.)
EXCHANGE OF LAND — Reasonableness of. (See PRESUMPTIONS, par. 1.)
EXECUTION SALE — 1. Validity of, what necessary to.
The mere fact that a judgment on which a writ of execution was issued
was valid does not make a sale under an execution valid when all pro
ceedings subsequent to the judgment were irregular. (Clioctuw No. 357,
Perry v. McMurtry.)
2. Evidence of.
The records of the court from which execution issued are the only proper
evidence of an execution sale. (Choctaw No. 357, Perry v. McMurtry.)
3. Return of writ of execution.
The laws of the Choctaw Nation required that every sheriff should make
due return of all writs executed by him to the proper court : Held, That a
sale under a writ upon which no return was made and which was never
fiied with the court which issued the writ was ineffectual to convey title.
(Choctaw No. 357, Perry v. McMurtry.)
Sheriff bidding at sale conducted by himself. (See SHERIFF, par. 1.)
FRACTIONAL SUBDIVISION — Of less than 10 acres. (See ALLOTMENT, par. G.)
FRAUD — 1. In making selection, effect of.
Contestee filed upon land, falsely swearing that he was the owner of the
improvements and subsequently attempted to obtain title therein from one
of the former owners of said improvements. Held, That contestee's filing
was fraudulent and of no effect and conveyed no rights to contestee.
(Choctaw No. 42, Freeny v. Dillard.)
2. Presumption of, inadequate consideration.
Where the amount for which land was sold at an execution sale ($8)
was grossly cut of proportion to the real value ($800 to $2,200), especially
where the sheriff conducting the sale bid in the property in his own name,
a strong presumption of fraud will arise. (Choctaw No. 357, Perry r.
McMurtry. )
GOOD FAITH — 1. In filing allotment.
One who files on land to which he knows another makes claim can not
claim that he filed in good faith if he gives no notice to the other of his
intention to file and makes no investigation of the other's rights. (Choc
taw No. 127, Jennings v. Lester.)
GIFT — 1. Alienation of title by.
Where the holder of the possessory right to land gives permission to a
party to go upon and improve said land, and the donee takes possession
under and by virtue of said gift and places valuable improvements on said
land, the subsequent transfer by bill of sale of the same land by tin* donor
to a third party vests in the vendee no title as against the original donee.
(Chickasaw No. 34, Donaghey v>. Colbert.)
With condition attached. (See CONDITIONAL GIFT, par. 1.)
GUARDIANS — 1. Authority of.
A guardian, under the Chickasaw laws, was authorized to sell the per
sonal property of his ward without order from the probate court, unless
his authority had been limited by the court. (Chickasaw No. 230, Hill t>.
Reynolds.)
2. Transfer by, ratification by ward.
Where there is positive evidence that one \vho presumed to act as guard
ian in transferring a minor's land had apparent authority so to do, and that
the ward affirmed his action when he became of age, the transfer is effec
tive, even though not made by the proper person or with proper formality.
(Chickasaw No. 1G09, con. Reynolds v. Caraway.)
Right of Commission to control. (See POWERS OF COMMISSION, par. 1.)
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 205
HUSBAND AND WIFE — 1. Noncitigen, comparative rights of.
The occupancy of a tract of land by a noncitizen wife gives her no
greater rights than those of her noncitizen husband, who occupies the same
tract with her. (Chickasaw No. 9, Trahern v. Russell.)
2. Selection l)y u'ifc of land segregated by husband.
A wife has the right, as against third parties, to select as a portion of
her allotment land on which her husband owns improvements. (Cherokee
No. 45, Terrapin v. Eaton.)
HEIRS — 1. Construction of term.
F., being dead, leaving five children, his brother-in-law, S., put improve
ments on a large tract of land, stating that he was segregating land for the
" F. heirs." Contestant claimed that this meant the family of the wife of
F., who was still living: Held, That such a construction was unreasonable;
that the maxim, nemo est haeres viventis, applied in this case?, and that
clearly the term must have been used by S. as meaning the heirs of the
deceased F. (Cherokee No. 140, Patterson v. Stewart.)
IMPROVED BY MISTAKE — 1. Effect of.
The unintentional inclosing of a small fractional part (one-half to 3 acres)
of a 40 acres by running the south line of a fence -on the land located north
of said 40 acres, through mistake, confers no right on the person erecting
said fence. (Choctaw No. 119, Garland v. McDaniel.)
IMPROVEMENTS — 1. Ownership of, sufficiency of evidence to estahlisJi.
When it appeared that the place in controversy had been put in by the
father of the contestant, when the latter was living with the family, and
with the contestant's assistance, but it does not appear that the place was
put iii for contestant, and, prior to the time the improvements were turned
over to the latter, his father had attorned to contestee, as his tenant, the
evidence is insufficient to establish ownership of the improvements in the
contestant. (Creek No. 719, Hawkins v. Hawkins.)
2. Title to, evidence of.
Where contestant's brother had been in possession and control of land for
several years, and at about the time contestee filed, made several deals con
cerning same, and it does not appear that he ever acted as agent for con
testant, the finding that at that time the title to the improvements was in
the brother and not in the contestant, is not error. (Choctaw No. 497,
Robinson v. Bully.)
3. Sufficiency of, to segregate, grade of land.
On a low grade of land, where one person can take in allotment a Inrge
area, it would be an unreasonable requirement to insist on the same grade
of improvements as would be reasonable and just on a high grade of farm
land, and it is right and proper to take into consideration the financial con
dition of the citizen in passing on the matter. (Choctaw No. 505, Moore v.
McKinney.)
4. Sufficiency of, to segregate.
The mere running of a portion of a fence across the northwest corner of
a 10-acre tract by a citizen who did not want the land, but erected the fence
merely to keep cattle from running south through his own pasture is not an
improvement sufficient to segregate the land. (Chickasaw No. 943, Barker
v. Carter. )
5. Same.
Three bearing fruit trees, the remnant of an old orchard once owned by
contestant, from which trees the contestant each year gathers fruit, to
gether with some wire fence, which does not entirely surround the land is
sufficient to segregate the 10 acres upon which said improvements are
located. (Cherokee No. 329, Klaus v. Donohoo.)
6. On each 10-acrc tract, necessity for.
The ownership and possession of improvements by the original segre-
gator on an abandoned town site, although said improvements are on the
20 acres contiguous to that in controversy, is, nevertheless, a sufficient seg
regation of the entire town site; there is no law to compel a citizen to place
improvements on every 10-acre tract within the tract claimed as his allot
ment. (Cherokee No. 332, Black well v. Parks.)
206 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
I MPROVEMENTS — Continued.
7. Value and age.
Whore it appears that the improvements of contestant on a 10-aere tract
are of more value and of greater age, though they cover less ground than
those of contestee on the same tract, there is no error in awarding 10 acres
to contestant. In such a case there is no reason why contestant should be
compelled to remove her improvement of greatest value — a house — to an
adjacent tract. (Choctaw No. 874, Ellis v. Williams.)
8. For minor, sufficiency of.
A minor contestant's father had erected for his son a pole fence which
partially inclosed the land in controversy, a small area of it also cleared
by cutting the timber and piling brush and "deadening" trees: Held,
Sufficient to put an intending allottee on notice that somebody claimed the
land. (Choctaw No. 5G1, McCann v. Coone.)
9. ^ainc.
The act of June 28, 1898, does not require lands in possession for minor
children to be fenced. Any fair indication of possession is sufficient.
(Creek No. 131, Beams v. Taylor.)
10. Same.
The acts of Congress concerning allotments do not require " land in pos
session " for minor children to be even fenced. Any fair indication of pos
session is sufficient. Following Grisson v. Asbury, Creek No. 10. (Choctaw
No. 501, McCann v. Coone.)
11. Character of, when unimportant.
When it appears that contestant had relinquished to contestee whatever
improvements were on certain land, it is unnecessary to determine the
character of the improvements or whether the land was public domain
when contestee filed. (Chickasaw No. 1667, con. Potts v. Kelly.)
12. Prior rights of owner.
The contestee acquires no right in land by appearing at the land office
and selecting it as a portion of his allotment when it appears that said
land was in the possession of the contestant, who owned the improvements
thereon. (Creek No. 808, Ponds v. Rentie.)
13. Same.
When contestee owns the principal improvements on a 10-acre tract,
consisting of 4 acres in cultivation, and those who had the cultivation on
the remaining portion recognized contestee's right to the land, he is entitled
to take the same in allotment. (Chickasaw No. 1404, Watkins v. Gilliam.)
14. Same.
Where a citizen is the owner of, and in possession of, improvements on
land at the date of another's filing, and when no consent to said filing was
given by the owner of said improvements, the land should be awarded to
the latter. (Creek No. 605, Sapulpa v. Frank.)
15. When approval of sale necessary.
Under the provisions of section No. 2116, Revised Statutes of the United
States, a sale of improvements on lands which subsequently became a part
of the Chickasaw Nation by virtue of the reestablishment of the ninety-
eighth meridian, west longitude, by a citizen of the Kiowa-Comanche
Agency to a citizen of the Chickasaw Nation to be valid must be approved
by the Indian agent of the Kiowa Agency and the Indian agent of the
Five Civilized Tribes. (Chickasaw No. 28, Keno v. Fillmore.)
16. Owned by third party, effect of.
When a third party is the only one owning improvements on the land in
controversy and makes no objection to contestee's filing, the prior filing of
the latter gives him the better right to the land. Choctaw No. 668, Agent
v. Rose.)
17. Ownership of, by both parties, division.
Where the evidence establishes the fact that both parties have valuable
improvements on the controverted land, both having made them in good
faith, a division of Said land, so that each may retain the land upon which
his improvements are situated, if possible, should be made. (Chickasaw
No. 793, Buckholts v. Hopping.)
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 207
I M PROVEMENTS — Continued.
18. Inclosurc wade by different owners, rights of party completing the
inclosurc and taking possession.
The contostee's grantor owned improvements on the north and east sides
of a tract of 2,000 acres, including the land in controversy, making a par
tial inclosnre. G. owned improvements on the west, C. on the south, leav
ing a gap of a mile and a half, and some smaller openings. H., the hushand
of contestant's grantor, closed all of said gaps by fence, put a portion of
the land in cultivation, and pastured his cattle on the remainder and held
possession thereof for several years. Held, That H., having completed the
mclosure, taken possession of the inclosed land, and held it for some years,
had the better title as against one who had improvements on two sides but
who had not reduced the same to possession. (Choctaw No. 305, Lewis v.
Durant.)
19. On public domain, appropriation of.
Where there are improvements on land, but because they are owned by a
noncitizen the land is public domain, and a citizen appropriates and takes
possession of the improvements without objection from anyone, the im
provements become the property of said citizen, and no other citizen is
thereafter entitled to take the land in allotment. (Chickasaw No. 943,
Barker r. Carter.)
20. Erection of, on land in the possession of another.
The erection of improvements on land in the possession of another citi
zen, against the protest of the latter, confers on the erector no rights in the
land as against the citizen in possession, or one claiming under him.
* (Chickasaw No. 303, Johnson v. Goldsby.)
21. Additional, made by stepfather of minor heirs inures to their benefit.
Susan Scroggins, after the death of her husband, married L. C. Oliver,
and they took possession of the place formerly held by her and her former
husband, Scroggins, and placed additional improvements thereon : Held.
That said additional improvements inured to the benefit of the minor heirs
of the Scroggins estate, and that Oliver did not acquire sufficient title to
said premises by reason of being in possession thereof and placing addi
tional improvements thereon to defeat the rights of said heirs to take said
land in allotment. (Chickasaw No. 72, con. Oliver v. Scroggins.)
22. Object and purpose of.
The object of improvements is to show that someone is claiming the
land, and if they are sufficient to put one on his inquiry, the latter can
not acquire rights by a prior filing. (Choctaw No. 565, Moore v. Mc-
Kinney.)
23. As notk-e to allottee.
The land in controversy was transferred by one Mrs. Perkins to J. C.
Cobb. trustee for the board of trade of the town of Caney, and was sur
veyed into lots and blocks. The land was not included in the town site
of Caney by the government segregation. Cobb transferred to Dulaney.
Prior to this time, however, contestant had thereon a barn, cow shed, seed
houses, and lots. Dulaney conveyed to contestee, as did Mrs. Perkins,
and contestee fenced the land: Held, That the contestee was presumed to
be aware at the time she filed upon the land that there were improvements
located thereon which belonged to contestant, and that contestant should
be awarded the land. (Choctaw No. 1, Turnbull v. Ball.)
24. Sufficiency of, to constitute notice.
The land in controversy was inclosed by fences, though the fencing on
three sides inclosed improvements owned by other citizens : Held, The im
provements upon the land at the time contestee examined them were of
sufficient character to have caused her to make a more thorough investiga
tion as to whether the land was in possession of anyone and as to who was
the owner of the improvements. (Creek No. 738, Sneed v. Duff.)
25. Removal of, voluntary stipulation.
Where it does not seem for the best interest of the parties to award
contestant a certain isolated 10-acre tract, but he has valuable improvements
thereon, the award should be made to contestee if the latter will file a stip
ulation that contestant may remove his improvements within a reasonable
time. (Choctaw No. 454, Mayo v, Payte.)
208 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
IMPROVEMENTS — Continued.
20. On excessive holdings arc personal property.
Though improvements on lands held for allotment may be considered as
an interest in real property, it is otherwise with improvements on lands
held after allotments of the owner have been taken, and where he still has
the right to sell the improvements, under the ninety days' limitation of
the act of July 1, 1902 (32 Stats., 041). (Chickasaw No. 230, Hill v.
Reynolds.)
27. On proposed town site, effect of rcsun:eu.
In 1890 contestant's husband constructed an improvement on 10-acre tract
in suit, the part so improved being a part of a lot in the proposed town site
of Choteau. By resurvey of the United States Government the 10 acres
in dispute, including the town lot above mentioned, were thrown back into
the public domain and were no longer a part of said town site. October
0, 1902, contestce inclosed the entire 10-acre tract with a three-wire fence,
excepting therefrom about one-fourth acre covered by the improvements of
contestant, who on that day personally notified contestee that he claimed
said land : Held, The contestant owned the only improvement on the 10
acres in suit at the date of the ratification of the Cherokee agreement,
which provides that the Commission shall not be required to divide land in
» tracts of less than 10 acres. Contestee is therefore chargeable with full
knowledge of the provisions of said agreement. No distinction between
improvement on proposed town lot and one on public, domain. Improve
ment follows the land, and the character of said improvement is not changed
from the fact of a town lot on which it is placed becoming public domain.
(Cherokee No. 90, Gray v. Lindsey.)
28. Made after contest.
Evidence that improvements have been placed upon land after the con
troversy arose can have no bearing on the issues of the cause. (Chickasaw
No. 197, con. Jacobs v. Townsley.)
Burden of proof to establish ownership. (See BURDEN OF PROOF, par. 3.)
Rights of owner of undivided interest. (See UNDIVIDED INTEREST, par. 1.)
IMPROVEMENT PLAT — 1. As notice of ownership.
The fact that on the Commission's improvement plat a certain tract is
marked as belonging to a certain citizen is notice of his claim to one
intending to allot the land. (Choctaw No. 054, con. llalsell v. Middleton.)
As evidence, conclusivcncss. (See SURVEY, pars. 1, 3.)
INADEQUATE CONSIDERATION — Presumption of fraud. (See FRAUD, par. 2.)
INCOMPETENTS — 1. Insane wife; selection by husband.
Under section 7<> of the Cherokee agreement a husband is authorized to
select an allotment for his insane wife, and it follows that he is authorized
to surrender her possessory right to land. (Cherokee No. 830, Heady
v. Bob.)
INNOCENT PURCHASER — 1. Who is.
A person who buys improvements with his eyes wide open, knowing that
another than his vendor claims them, and the purchaser buys, expecting to
tight for the improvements, he can not be considered an innocent purchaser.
(Chickasaw No. 230, Hill v. Reynolds.)
2. ^amc.
A citizen who has notice of the claim of another citizen before he pays
any of the purchase price or puts any improvements on the land is not an
innocent purchaser. (Chickasaw No. 547, con. Howard v. Walker.)
INTERPRETER — 1. When witness entitled to.
It is not error for the Commission to fail to provide an interpreter where
the witness uses language with as much proficiency as the average person,
especially where the witness fails to ask for an interpreter. (Chickasaw
^No. 400, Stallaby v. Ebisch.)
INTRUDER SALE — 1. Notice of; sufficiency.
In this case the land in controversy was sold at an intruder sale by a dis
trict revenue collector of the Cherokee Nation under the provisions of an
LAWS AFFECTING THE FIVE CIVILIZED TKIBES. 209
INTRUDER SALE — 1. Notice of; sufficiency — Continued.
act of the Cherokee council, known as senate bill No. 2, and approved by
the President January 1C, 1902, section 4 of which act provides " that the
revenue collector shall advertise all places or improvements which shall
come into his possession as provided in this act in some newspaper of gen
eral circulation published in the district wherein the improvements adver
tised may be located for at least thirty days, or in four consecutive issues,
and proceed to sell the same at the time and place advertised to the highest
bidder, payment therefor to be made as follows * * *." The sale in
this instance was made twenty-eight days after the date of the first publi
cation : Held, The proper official of the Cherokee Nation sold the premises
in question twenty-eight days after the first publication of sale to Hiram
Stevens, guardian of the contestee herein ; that the act under which he sold
required thirty days' notice from the date of the first publication. It is
evident that proper and legal notice not having been given, no title passed
to Hiram Stevens under this sale. (Cherokee 52, con. Kuhn v. Ross.)
2. Same.
Contestee bases title to controverted land by reason of purchase at an
intruder sale, under Cherokee law. Notice of sale, as provided by Cherokee
law, defective, and contestant retained possession after sale: Held, Sale
by Cherokee authorities void and contestant entitled to the laud. (Chero
kee No. 27, Ingram v. Tarepin.)
JUDICIAL NOTICE — 1. Of Department records. (See RECORDS, par. 4.)
JUDGMENT — 1. Of United States court, effect of.
Although judgments of the United States court in Indian Territory are
not binding upon the Commission, the fact that a judgment was rendered in
such a court by agreement of the parties is confirmatory evidence of the
facts upon which the judgment was predicated. (Cherokee No. 26, Barlow
v. Brown.)
2. Same.
Judgment of United States court not binding on contestant where con
testant was not made a party to the suit in said court. (Creek No. 131,
Beams v. Taylor.)
3. When void; want of proper service.
Irregularity of service may be "of such a nature as to justify the court in
setting aside the judgment, if it appears that on account of the irregularity
the rights of the contestee have been prejudiced. But jurisdiction having
been acquired, the judgment is not void, and will stand unless taken advan
tage of by the proper parties. (Chickasaw No. 169, Ingram v. Wiltsey.)
4. As evidence.
While the Commission is not bound by any action of the court, neverthe
less judgments in other courts between the same parties are evidence that
should be considered by the Commission. (Cherokee No. 597, Whitmire v.
Payne. )
Valid, does not necessarily support execution sale. (See EXECUTION SALE,
par. 1.)
Motion to vacate. (See APPEAL, pars. 20, 21.)
Of court, effect as res judicata. (See RES JUDICATA, pars. 1, 2.)
JURISDICTION — 1. Of Commission; exclusive.
Under section 24 of the act of July 1, 1902 (32 Stats., 641), the Commis
sion has exclusive jurisdiction to determine the rights of parties in the mat
ter of allotment contests, and is not bound by a prior court judgment, even
though the latter was rendered in a case between the same parties. (Chick
asaw No. 274, Alexander v. Wright. 'Chickasaw No. 547, con. Howard v.
Walker.)
Of Commission. (See TRIBAL LAWS, par. 2.)
Of appeal filed out of time. (See APPEAL, par. 4.)
LACHES — 1. What constitutes.
Contestant had the land in controversy leased to a tenant until January
1, 1903 ; on December 23, 1902, contestee took possession under a claim of
33753—06 M 14
2 1 0 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
LACHES — 1. What constitutes — Continued.
title ; on January 1C, 1903, contestant wrote the Commission that he claimed
the land, but was informed that he could not file on it until the Land
Office opened. On April 30, 1003, he again wrote and stated that he wished
to contest anyone who filed on the land : Held, That it was contestant's
privilege to wait and bring his case before the Commission, and he could
not be said to have slept on his rights. (Chickasaw No. 547, con. Howard
v. Walker.)
2. What is, to amount to abandonment.
When a citizen, who has never been in possession of land, and claims
ownership in the improvements only as the heir of another, sleeps on his
rights for seven years, and in the meantime allows the improvements to
decay, his laches is such as to amount to abandonment. (Choctaw No. 172,
con. Wadley v. Barbour. )
LANDLORD AND TENANT — 1. What necessary to create relation.
Evidence that a contract was made by «i noneitizeii with a citizen by
which the former erected for the latter a cellar worth .$(55, which was to
pay for his right to occupy the land until the citizen demanded more, it
being testified that the $65 was paid for the citizen's " good will," and the
noncitizen testified that he owned the improvements, is insufficient to estab
lish the relation of landlord and tenant. (Choctaw No. 331, Nash v. Locke.)
2. Establishment of relation.
The payment of $20 per year for four years next preceding allotment is
sufficient to establish the relation of landlord and tenant. (Chickasaw No.
726, Leslie v. Ebisch.)
3. Creation of relation.
The relation of landlord and tenant does not depend on the intention of
the tenant, nor is a contract to pay the rent always necessary to create the
relation of landlord and tenant between the grantee and the lessee of the
grantor, and in such cases no attornment is necessary. (Chickasaw No.
639, Sullivan v. Melville.)
4. Same.
An agreement between a noncitizen and a citizen that the former should
put improvements upon tribal lands and occupy them under the latter, and
that the former was not to pay any rent, but should hold the land for the
citizen until the latter allotted the land, when she was to have the im
provements, was sufficient to create the relation of landlord and tenant
between the citizen and the noncitizen. (Chickasaw No. 726, Leslie v.
Ebisch.)
5. 8 a inc.
The implied relation of landlord and tenant does not depend on the
intention of the tenant; the conveyance of the reversion creates the rela
tion of landlord and tenant between the vendee and the lessee of the
grantor. (Cherokee No. 527, con. Grimmett v. Uawson.)
6. Effect of relation.
The fact that contestee's grantor paid rent to contestant's grantor for
the occupancy of the land in controversy is fatal to the contention that
contestee's grantor was then the owner of the premises. (Choctaw No.
343, Morris 'v. Walker.)
7. Fencing of contiguous land by tenant, presumption.
When a noncitizen tenant fences land contiguous to that he holds under
the tenancy, there is a presumption that he does it on behalf of his citizen
landlord. (Chickasaw No. 639, Sullivan v. Melville.)
8. Transfer by tenant.
Contestant purchased improvements from a citizen, and a noncitizen
paid the $600 for contestant. Noncitizen took possession as tenant of
contestant to get his money back. Contestant refused to give noncitizen a
written lease for a certain number of years as he had agreed, whereupon
the noncitizen in possession sold to contestee, who took actual possession
and fiJed upon the land with the full knowledge of circumstances: Held,
That contestee acquired no title to improvements located on land in con
troversy. (Choctaw No. 7, Neal v. Ward.)
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 211
LANDLORD AND TENANT — Continued.
0. Transfer by noncitizen tenant, effect of.
A transfer by a noncitizen tenant, holding lands under a lease contract
with a citizen, operates not to pass any title to the vendee, but to substi
tute the latter as the tenant of the original landlord. (Chickasaw No. 1392,
Finley v. Self.)
10. Same.
Alvin Neal, husband of the contestant, was the owner of the improve
ments and entered into a contract with his uncle, one Moore, a noncitizen,
whereby Moore becalne his tenant. Moore alleging that Neal had failed
to carry out his contract, transferred improvements to contestee and con-
testee claims through no other source: Held, That no title passed to
contestee and land should be awarded to contestant. (Choctaw No. 2,
Neal v. Ward.)
11. Saute.
The most that a purported transfer by a tenant to a third party can
accomplish is to subrogate the vendee to the tenant's rights under the lease.
(Cherokee No. 629, con. Dougherty v. Payne.)
12. Estoppel of tenant to deny landlord's title.
One who makes a bill of sale to another citizen and becomes the latter's
tenant can not deny his landlord's title, much less set up a claim and sell
the premises to another. (Cherokee No. G29, con. Daugherty v. Miller.)
13. Same.
It is a well-recognized rule at the present day that a tenant can not dis
pute his landlord's title. The fact that the lease was void will not prevent
the estoppel arising. (Choctaw No. 119, Garland v. McDaniel. )
14. Attornment of tenant to third part}/.
A tenant in possession of land under a rental contract can not, by attorn
ing to a third party, affect his landlord's title or prejudice his rights.
(Chickasaw No. 274, Alexander v. Wright.)
LEASE — 1. Written instrument construed to be.
C., a citizen, was in possession of land under W., another citizen. W.
owed C. a debt of $4GO ; under these circumstances W. executed the follow
ing instrument to C. :
" I hereby agree to turn over all the land and improvements on the north
side of section line running through the Robert Wright farm, known as the
Win. Crites farm, for the consideration of the sum of $4(50 to Wm. Crites,
and that the said Wm. Crites agrees to put a cross fence on the section line
running east and west on or before the 15th day of March 1901 ; all of
said property being in Gaines Co., Choctaw Nation, and near the village
of Ola, Ind. Ter."
Held, That this instrument did not constitute C. the agent of W., but that
it was a lease which created the relationship of landlord and tenant between
them. (Choctaw No. 424, Pebworth v. Wright.)
LEGAL SUBDIVISIONS. (See IMPROVEMENTS, par. G. )
LEGITIMATE BIRTH — 1. Presumption of.
A showing is not sufficient to designate one as of illegitimate birth when
no specific part of a two years' absence of his supposed father is designated
within which he was born. The presumption of law is that one born in
wedlock is of legitimate birth, and to overthrow this presumption it is nec
essary to show affirmatively that he was born more than ten months after
the departure of his mother's husband. (Choctaw No. 127, Jennings v.
Lester. )
LIMITATION — 1. On institution of contests.
The limitation as to the time when a contest may be instituted does not
apply where one citizen filed on land legally in the possession of another.
(Creek No. 700, Mclntosh v. Ballard; Creek No. 722, Woodward v. Wiley;
Chickasaw No. 1324, Alexander v. Stidham.)
2. Creek rule No. 2, how applied.
The rule laid down by the Department in Garrett v. Johnson, Creek No. 1G5,
that the ninety-day limitation prescribed in Creek rule No. 2 did not apply
212 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
LIMITATION — 2. Greek rule 2Vo. 2, how applied — Continued.
to a citizen who is lawfully in possession of land at the time contestee filed,
does not protect one who was not in the legal possession of the land when
contestee selected the same. (Creek No. 759, Burnette v. Berry.)
3. Statute of, possession of improvements.
Whether a finding that, because each party had been in possession of
improvements on the same land for more than six years, the statute of
limitation bad run so as to render it unnecessary to consider the relative
age of the improvements is correct — Query ? (Choctaw No. 883, Iluddleston
v. Gilmore.)
Loco PAEENTIS — 1. Selection for minor by person in charge.
A child, when quite young, at the request of its father on his deathbed,
was placed in the care and under the control of another, who took said
child to his own home, raised, educated, and treated it in all respects as his
own child and a member of his own family, but did not legally adopt it or
have himself appointed its legal guardian until after the time when certain
lands, which were being held by him for said child, had been filed upon by
another: Held, That the laud was properly selected for the child by the
person having it in charge, and by holding it for the child he did not become
an excessive holder. This child, under these conditions, was a member of
the family. (Creek No. 780, Barwell v. Smith.)
MINORS — 1. Representative of.
It is the duty, under section 70 of the act of July 1, 1902 (32 Stats.,
041), for the father, mother, guardian, or curator, "in the order named,"
to select allotments for minors, and it necessarily follows that it is the duty
of the representative who makes the selection to defend, for and on behalf
of the minor, any contest proceedings. (Chickasaw No. 109, Ingram v.
Wiltsey.)
2. Rights of.
The irregular conduct of a minor's parent, who is without business experi
ence, in dealing with laud other than that in controversy should not be
allowed to prejudice the rights of the minor in the laud in controversy.
(Chickasaw No. 104, Lane v. Apala.)
3. Services of.
The services of a minor applied on lands in the possession of his father
do not, of themselves, give the minor any claim to the land as against the
father, who is entitled to the services of his minor children. (Chickasaw
No. 9, Trahern v. Russell.)
4. Estate of ; control of grandfather over.
A grandfather is not, unless he is duly appointed the legal guardian of his
minor grandson, authorized to control the allotment right of the latter. lie
has no power or control over the estate, real or personal, of such minor.
(Cherokee No. 830, Heady v. Bob.)
Character of improvements for. (See IMPROVEMENTS, pars. 8, 9, 10.)
Authority of guardian to sell personal property. (See GUARDIAN, par. 1.)
MISSISSIPPI CHOCTAW — 1. Rights of.
The conditional character of the right of a Mississippi Choctaw under
section 44 of the act of July 1, 1902 (32 Stats., 041), will not prevent him
from prevailing in a contest case. The said matter will remain open, the
qualification noted on the allotment certificate, and the land awarded to
him, subject to the condition that he thereafter establish his status under
said section 44. (Chickasaw No. 1202, Byers v. Carter.)
MISTAKE — In selection, effect of. (See ABANDONMENT, par. 5.)
MORTGAGE — 1. Evidence required to shoiv deed to ~be.
The fact that the consideration for an instrument was the assumption of
past debts of the grantor is no evidence that the instrument was intended
to be a mortgage rather than a deed. (Chickasaw No. 221, Kemp v.
Reichert.)
2. Same.
In order that an instrument, which is on its face a deed, may be found in
fact to be a mortgage, the evidence to that effect must be clear and convinc
ing. (Chickasaw No. 221, Kemp v. Reichert.)
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 213
MOTIONS — 1. Must be filed within time.
One who does not appeal, but files a motion for review out of time, can
not be heard to complain if the Department holds the decision below final.
(Creek No. 203, Smith v. Cully.)
2. To reopen, must be in conformity with rule 21 of Rules of Practice.
Motion to reopen properly denied when not accompanied by an affidavit
of the party filing same to the effect that said motion is made in good faith
and not for the purpose of delay, as is provided for in rule 21 of the Rules
of Practice in Choctaw, Chickasaw, and Cherokee allotment contest cases.
(Chickasaw No. 72, con. Oliver v. Scroggins. )
For rehearing ; when granted. (See REHEAKING, pars. 1, 2, 3, 4.)
For reJieuriiif/ ; when to he filed. (See REHEARING, par. f>.)
For rehearing and review. (See APPEALS, pars. 18, 19, 20, 22.)
For review. (See APPEAL, pars. 17, 18.)
For review; when granted. (See REVIEW, par. 1.)
For rehearing; order denying not appealable. (See APPEAL, pars. 18, 10, 20,
22.)
For reinstatement; discretion of Commissioner. (See REINSTATEMENT, par.
1.)
For dismissal of appeal, how verified. (See APPEAL, par. 11.)
To vacate judgment; appealable. (See APPEAL, par. 21.)
NEMO EST HAERES VIVENTIS — 1. Application of maxim. (See HEIRS, par. 1.)
NEW HORN — 1. Sufficiency of possession on behalf of. (See POSSESSION, par 3.)
NEWLY DISCOVERED EVIDENCE — 1. What is.
Newly discovered evidence is such evidence as did not, at the time of the
hearing, rest in the bosom of the party presenting it and could not have
been discovered by him at that time with the exercise of due diligence.
(Creek No. 3GO, Gentry v. Graves.)
2. Same.
Newly discovered evidence is that not resting at the time of the trial
in the bosom of the party presenting it and which could not have been dis
covered by him at that time with the exercise of due diligence. It must
also be such evidence as will make a prima facie case for the party offering
it. (Cherokee No. 597, Whitmire v. Payne.)
3. Same, to warrant a rehearing.
Newly discovered evidence is such evidence as did not rest in the bosom
of the party presenting it at the time of the hearing and could not have been
discovered by him at that time by the exercise of due diligence. It must
also be such that, if introduced and not rebutted, it would be sufficient to
make out a prima facie case for the party introducing it. (Chickasaw No.
1009, Kaney v. Kemp.)
NINETY-EIGHTH MERIDIAN — How lands affected by changing of. (See CHICKA
SAW LANDS, par. 1.)
NONCITIZEN — 1. Right to convey.
As a noncitizen can have no title to improvements on tribal lands, he can
convey no title. (Chickasaw No. 256, Wolfe v. Shoemaker; Chickasaw
No. 440, Runton v. Merryinan ; Chickasaw No. 72G, Leslie v. Ebisch ; Chicka
saw No. 701, Guinea v. Daugherty ; Creek No. 700, Mclntosh v. Ballard.)
2. Rights of, transfer by.
A noncitizen has no right to hold or transfer improvements on tribal
lands, and where noncitizens are in possession of such lands in their own
right, the land is public domain, subject to allotment by the citizen who
first makes application therefor. (Choctaw No. 120, Folsom v. Hoi ton.)
3. Transfer by, when accompanied by delivery of possession.
A noncitizen entered upon and improved a part of the public domain by
permission of a citizen, who stated that he would allot same, provided the
grade was satisfactory. The noncitizen sold his improvements March 1,
1903, and remained in possession as tenant. The citizen transferred all
his right, title, and interest in and to the tract without consideration :
214 LAWS AFFECTING THE FIVE CIVILIZED TKIBES.
NONCITIZEN — 3. Transfer by, when accompanied by delivery of possession —
Continued.
Held, That the citizen had no interest in the improvements, and that the
sale by the noncitizcn and the delivery of possession to contestant prior to
filing of contestee vested title in contestant. (Choctaw No. 319, Gilmore v.
Story.)
4. Segregation by.
A noncitizen can not, by putting improvements upon tribal lands, segre
gate them for his own benefit. (Chickasaw No. 639, Sullivan v. Melville.)
5. Rights of.
The occupancy by a noncitizen of lands of the Five Civilized Tribes gives
him no title thereto or interest therein. (Chickasaw No. 9, Trahern v.
Russell.)
G. Same.
Under the peculiar conditions obtaining in the Five Civilized Tribes a
noncitizen could obtain the right of occupancy and ownership of improve
ments in such tribe. (Chickasaw No. 221, Kemp v. Reichert.)
7. Ri glits of, transfer by.
Under the peculiar conditions obtaining in the Five Civilized Tribes a
noncitizen could obtain the right of occupancy and ownership of improve
ments in such tribe. He could therefore dispose of them under the same
conditions and circumstances as could a citizen of the nation. (Choctaw
No. 311, Pool v. Jackson.)
8. Validity of sale by, presumption.
When a noncitizen made a sale within the time limited in section 4 of
the Curtis Act, it will be presumed that he acted within the law, and that
he did not come within the terms of the proviso to said section. (Chero
kee No. 52, con. Knlin r. Ross.)
Transfer by. (See TRANSFER, par. 3.)
NOTICE — 1. Of intruder sale.
Notice provided by Cherokee law of intruder sales must be complied with
in order that sales be legal. (Cherokee No. 52, con. Kuhn v. Ross.)
2. To occupant before filing, who entitled to.
Only an occupant lawfully in possession of no more land than could
legally be selected by himself and for members of his family is entitled to
notice of another's filing. (Creek No. 759, Burnette v. Berry.)
3. Of decision, date, and date of service.
Contestee's attorney, to support his contention that his appeal was filed
in time, exhibited a copy of notice sent to him, which appeared to be dated
April 15, 1905, though the figure 5 appeared to be written over an erasure.
The office copy of the notice showed the date to be April 10. The records
showed that it had been mailed April 10, and the registry receipt, signed
by contestee's attorney, showed it to have been received April 10. The
appeal was filed May 13. Held, That in order to excuse the delay in filing
an appeal it was necessary for contestee to show that the notice was dated
on the 15th by authority of the Commission, and that it was not delivered
to contestee's attorney before the latter date. (Chickasaw No. 1383, Has-
sell v. Quincy. )
Constructive, records of Commission. (See RECORDS, par. 2.)
Constructive, by records. (See RECORDS, par. 1.)
Office copy of, part of record. (See RECORDS, par. 3.)
To excessive holder, necessity of. (See EXCESSIVE HOLDING, pars. 4, 5.)
Improvement plat as. (See IMPROVEMENT PLAT, par. 1.)
OBJECTION — 1. To evidence deemed abandoned.
The contestant having objected to a certain written instrument on the
ground that it was not acknowledged, will be deemed to have abandoned
the objection when, after being challenged by contestee's counsel in a brief
to point out a statute requiring acknowledgment, he files a reply brief
which fails to indicate such a statute. (Chickasaw No. 1202, Byers v
Carter.)
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 215
ORAL TRANSFER — 1. Of an interest in land.
Under the statutes of Arkansas, in force in the Indian Territory, an oral
transfer is insufficient to convey any interest in land. Withdrawn by sub
sequent letter of Assistant Secretary Ryan on March 6, 1906. (I. T. D.,
3968-1906. )
2. When sufficient.
As between members of the same family a verbal contract or understand
ing as to the ownership of improvements is uniformly held good. (Chicka-
saw No. 1069, Kaney v. Kemp.)
Validity of. (See TRANSFER, par. 4.)
ORPHAN — 1. What is, under Chickasaw laws.
The Chickasaw law authorized a county judge to appoint guardians for
" orphans " that were not of age. Held, That the word " orphan " may be
construed to mean minors having but one parent living. (Chickasaw No.
286, Hill v. Reynolds.)
PAROL EVIDENCE — To vary terms of written contract. ( See CONTRACT, par. 7 ;
deed, par. 2.)
PARTIES — 1. At interest in contests.
The only parties at interest in contest matters are the contestant and
contestee, and they are the only persons considered when determining the
questions at issue in contests. (Choctaw No. 565, Moore v. McKinney.)
POSSESSION — 1. When necessary.
The ownership of improvements on the north and east sides of a tract
of land, such improvements being erected especially with reference to lands
lying north and east of that in controversy, gives no right to the owner
thereof unless he exercises acts of possession over the land in controversy.
(Choctaw No. 305, Lewis v. Durant.)
2. Coupled with equity in the land.
Where the evidence shows that the contestant was in possession of the
land when contestee filed, and that his equities were greater than those of
contestee, he should be awarded the land. (Chickasaw No. 86, Wright v.
Ilomma.)
3. On behalf of new-born.
Where the minor contestant's father was in possession of land up to Janu
ary 1, 1905, under a lease from the Creek Nation, and during that lease
erected a fence on the land, and after its expiration remained in possession,
putting in cultivation three or four acres in one part thereof and using the
remainder for a pasture, his possession was lawful, and sufficient to seg
regate the land on behalf of minor contestant. (Creek No. 832, Porter v.
Haikey.)
Of improvements for more than six years. (See LIMITATION, par. 3.)
Taken after transfer by noncitizen. (See TRANSFER, par. 3.)
POWERS OF COMMISSION — Control of minor's allotment.
Section 22 of the Cherokee Treaty (32 Stats., 716), is not broad enough to
warrant the Commission in interfering with the selection of allotments by
guardians for their wards. (Cherokee No. 830, Heady v. Bob.)
PRACTICE — On appeal. (See APPEAL, par. 6.)
PRESUMPTIONS — Reasonable.
Where the evidence on the point is conflicting, it will be presumed that
contestant would not voluntarily exchange 10 acres of cultivated 'and,
which is a portion of the farm on which he is living, together with two
houses and an orchard, for less number of acres of raw, uncultivated land
located in a pasture. (Creek No. 808, Ponds v. Rentie.)
DateVf written instrument. (See WRITTEN INSTRUMENTS, par. 1.)
Fencing of contiguous land by tenant. (See LANDLORD AND TENANT, par. 7.)
As to legitimacy. (See LEGITIMATE BIRTH, par. 1.)
PRINCIPAL AND AGENT — Authority of agent. (See AGENT, pars. 2, 3, 4,)
PRIOR SELECTION — Of land on ivliich improvements are owned, by another. (See
IMPROVEMENTS, par. 12.)
216 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
PRIORITY — Of filing. (See SELECTION, par. 3.)
PRIVILEGED COMMUNICATION — Between attorney and client. (See ATTORNEY
AND CLIENT, par. 2.)
PUBLIC DOMAIN — 1. Segregation of.
The first citizen who goes upon land which is public domain and improves
it thereby segregates it and is entitled to take it in allotment. (Cherokee
No. 1284, Ross v. Loeser.)
2. Abrogation of quarter mile limit law.
After the quarter mile limit law of the Cherokee Nation was abrogated
by the act of July 1, 1902 (32 Stat. L., 710), all unimproved land lying
within one-quarter mile of a citizen's improvements became public domain.
(Cherokee No. 1284, Ross v. Loeser.)
3. Estoppel to claim land to l)c.
When at the trial of the cause contestee claims land through the owner
ship of improvements purchased from another and it appears that he
attempted to buy from others improvements sufficient to preclude the land
from being public domain, he abandons his claim that the land is public
domain, and such a claim need not be further considered. (Chickasaw No.
197, con. Jacobs v. Townsley.)
When improved land is. (See EXCESSIVE HOLDING, pars. 10, 11.)
Lands held by noncitizens. (See NONCITIZEN, par. 2.)
QUARTER MILE LIMIT LAW — 1. Effect on Commission.
Held: That the " quarter mile limit " law adopted by Choctaw coun
cil has no binding force on the action of the Commission in the allotment
of the lands of said nation. (Choctaw No. 119, Garland v. McDaniel.)
Abrogated by treaty. ( See TRIBAL LAWS, par. 4. )
RECORD — 1. Of bill of sale, necessity for.
While provision is made for the recording of bills of sale in Indian Ter
ritory, such provision is not mandatory, and the recording of such an
instrument is not requisite to its validity. (Choctaw No. G54, Halsell v.
Middleton.)
RECORDS — 1. Of lease, constructive notice.
The record of a le^ise is such notice that a party can not well say that
he could not have discovered the existence of the lease by the exercise of
reasonable diligence. (Chickasaw No. 10G9, Kaney v. Kemp.)
2. Of Commission, constructive notice.
A notation upon the records of the Commission, made by request of a citi
zen, that such citizen is claiming certain described lands, is notice to all the
world. (Chickasaw No. 547, con. Howard v. Walker.)
3. Office copy of notice.
The office copy of notices sent to litigants and their attorneys are essen
tial parts of the record. (Chickasaw No. 1383, Hassell v. Quincy.)
4. Of the Commission.
The Commission will take judicial notice of the records of its own office.
(Chickasaw No. 1300, Alexander v. Bean.)
REHEARING — 1. For newly discovered evidence, when granted.
Where a motion for a rehearing on the ground of newly discovered evi
dence is supported only by the affidavit of the moving party, where there
are no affidavits of the witnesses who it is claimed will give new evidence,
and no attempt to show that the alleged evidence could not by the exercise
of due diligence have been discovered in time for the hearing, the motion
will be denied. (Choctaw No. 173, con. Wadley v. Barbour.)
2. When granted.
A rehearing will not be granted to admit the testimony of certain wit
nesses where it does not appear that their evidence is newly discovered, but
does appear that they were absent from the former hearing for reasons
which would have justified a continuance to procure their testimony, no
continuance having been asked for by the party now moving for a new
trial. (Choctaw No. GG8, Agent v. Rose.)
LAWS AFFECTING THE FIVE CIVILIZED TKIBES. 217
REHEARING — Continued.
3. Same.
When a motion for rehearing is not grounded on a question of law or fact
that was not duly considered when the case was first decided, or when it
does not appear that a reconsideration would bring about a different result,
the motion should be denied. (Creek No. 786, Barnwell v. Smith.)
4. When granted, after decision of United States court.
A contest case should be reopened and the cause reheard when, after final
decision of the cause, a suit in the United States court between the same
parties, involving the same issues, has been decided contrary to the decision
of the Department by the United States circuit court of appeals. (Chicka-
saw No. 187, Watkins v. Gooding.)
5. For newly discovered evidence, when motion must he filed.
There is no limitation as to the time within which a motion for a rehear
ing, based on newly discovered evidence, must be filed. (Cherokee No. 597,
Whitmire v. Payne.)
When granted, newly discovered evidence. (See NEWLY DISCOVERED EVI
DENCE, par. 3.)
REINSTATEMENT — 1. Motion for, discretion of Commissioner.
A cause having been lawfully dismissed for want of prosecution, a motion
to reinstate the same is addressed to the sound discretion of the Commis
sioner, and in the absence of a showing of an abuse of such discretion an
order granting or denying such motion shall not be disturbed. (Choctaw
No. 552, Colbert v. Lewis.)
RELEASE — Unacknowledged, competency as evidence. (See EVIDENCE, par. 3.)
RELINQUISHMENT — 1. By administrator, ichen approved.
A relinquishment made by an administrator of an estate, of an allotment
selected on behalf of his intestate will, when confirmed and approved by the
court having jurisdiction of the said estate, be accepted by the Department.
(Creek No. G05, Sapulpa v. Frank.)
2. Made after contest commenced.
A relinquishment signed by contestee after the institution of the con
test as part of an unsuccessful attempt to compromise and reciting no
consideration is not sufficient to deprive contestee of her rights in the land
when she does not waive her claim in the presence of the Commission.
(Cliickasaw No. 1202, Byers v. Carter.)
3. Attempted, effect on right of party.
An attempted relinquishment by a party not approved by the Commission,
where the party does not waive his right to a hearing of the contest, does not
estop him from having his rights ascertained in due course. (Chickasaw
No. 1067, con. Potts v. Kelly.)
4. When allowed, after appeal.
A contestee, in straitened circumstances, whose contest case has been
delayed for six years, pending the determination of contestant's citizenship,
and who swears that he believes that contestant had improvements on the
land sufficient to segregate the same, should be allowed to relinquish his
selection, even after appeal of the contest case. (Creek No. 297, Taborn v.
Nero. )
5. Written, proof of execution.
The admission of contestant that he signed a paper, introduced in evi
dence as a relinquishment to contestee, is sufficient proof of its execution.
(Chickasaw No. 1202, Byers v. Carter.)
6. Construction of.
A written relinquishment signed by contestant commenced : " I hereby
agree to relinquish," etc. It contained no condition except in the present
tense. Held, That it was not merely a promise to relinquish in the future,
but a present agreement. (Chickasaw No. 1202, Byers v. Carter.)
7. Reservation of improvements.
The fact that in a written relinquishment of land reservation is made by
the contestant of the fences on the land does not vitiate the instrument as
a relinquishment of the land. (Cliickasaw No. 1202, Byers v. Carter.)
By applicant after appeal. (See APPEAL, pars. 7, 8, 9.)
218 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
REMOVAL — Of improvements, stipulation for. (See IMPROVEMENTS, par. 25.)
RESCISSION — Of contract, burden of proof. (See CONTRACT, pars. 1, 2, 3.)
RES JUDICATA — 1. Identity of cause of action.
A judgment in an action in the United States court for the recovery of
possession of the land in controversy is not res judicata in a contest case
before the Commissioner, for the reason that the causes of action in the
two cases are not the same. (Chickasaw No. 274, Alexander v. Wright;
Chickasaw No. 334, Kemp v. Turnbull.)
2. Identity of parties.
Where the parties to a prior suit in the United States court are not the
same as those in a contest case, a judgment in the former can not he res
judicata in the contest case. (Chickasaw No. 274, Alexander v. Wright.)
REVIEW — 1. Motion for, when granted.
Motions for review are not granted simply on the assertion or assumption
that a reexamination of the evidence will bring about a different result.
(Chickasaw No. 334, Kemp v. Turnbull.)
RIGHT TO ALLOT — What constitutes. (See CHICKASAW LAND, par. 1.)
RIVER — As part of an inclosure. (See INCLOSURE, par. 1.)
RULES OF PRACTICE — 1. Motion to reopen.
The rules of practice do not provide for motions to reopen cases. The
same relief is obtained by motions for rehearing or review. (Creek No.
203, Smith v. Cully.)
2. Creek rule 27.
The rule limiting the time within which motions for review may be filed
will be strictly enforced in contest cases. (Creek No. 203, Smith v. Cully.)
3. Same, ivhat required.
The rules of practice governing allotment contest matters in the Creek
Nation provide that motions for rehearing and review must be filed within
ten days from notice of decision. The motion not having been filed in time,
and as it is defective in other particulars, must be dismissed. Motions for
rehearings are allowed in accordance with legal principles applicable to
motions for new trials at law, and this motion does not meet such require
ments. The affidavit which accompanies the motion is not supported by
other affidavits, and it is not shown when the alleged discovery of new evi
dence was made and that such discovery \vas acted upon without unneces
sary delay. (Creek No. 759, Burnette v. Berry.)
Rule 25, substantial compliance. (See APPEAL, par. 5.)
Same, effect of noncompliancc. (See APPEAL, par. 4; SERVICE, par. 3.)
RULES AND REGULATIONS — Of Department, dated October 7, 1898. (See SELEC
TION, par. 2.)
SEGREGATION — Improvements necessary for. (See IMPROVEMENTS, pars. 3, 4, 5,
G, 8, 9, 10.)
SELECTION — 1. Duty of applicant.
It is the duty of one applying to allot lands upon which there are im
provements to ascertain the ownership of improvements before applying for
the land. (Choctaw No. 311, Pool v. Jackson.)
2. Fraud or mistake in making, presumption.
In view of the rules and regulations of the Department promulgated
October 7, 1898, providing that an applicant for land must swear that he
has personally viewed the land he applied for, it must be presumed there
wyas either fraud or mistake in the making of contestee's selection of lands
which he admits that he had never examined. (Cherokee No. 361. con.
Kerr v. Shell.)
3. Rights obtained by a prior applicant.
A citizen can not acquire the right to land in any of the nations of the
Five Civilized Tribes 'awfully held by another citizen merely by going to
the allotment offce and making selection thereof. (Chickasaw 197, Jacobs
v. Townsley. )
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 219
SERVICE — 1. Defect in, who can take advantage of.
No one but the contestee can take advantage of an objection that the
service on a minor contestee was insufficient. (Chickasaw No. 169, Ingram
v. Wiitsey.)
2. Of summons, duty of contestant.
It is the duty of contestant to serve, or cause to be served, the notice of
contest and summons on the contestee. (Choctaw No. 552, Coibert v.
Lewis.)
3. Of notice of decision.
In order to set running the limitation within which a party must appeal
from a decision, service of a notice of that decision must be made on the
attorney of record for the party, and service on the attorney who appears
of record before the Commissioner to the Five Civilized Tribes is not suffi
cient when it appears that he severed his connection with the case prior to
the giving of the notice. (Chickasaw No. 16, Hays v. Brashears.)
4. Of brief, what is sufficient.
The service of a brief on one or several of the attorneys of record is
service on all and also on the party they represent. (Chickasaw No. 197,
con. Jacobs v. Townsley.)
Of motion, defect in, waiver. (See APPEARANCE, par. 2.)
SHERIFF — 1. Purchasing at a sale conducted by himself.
While there may have been no law in the Choctaw Nation forbidding a
sheriff to bid at an execution sale conducted by himself, a proper regard
for official duty would prevent a man from so doing, and such a sale will
be closely scrutinized for fraud. (Choctaw No. 357, Perry v. McMurtry.)
STATUTES — 1. Construction of, Creek agreement.
Section 6 of the Creek agreement, approved March 1, 1901 (31 St.it.,
861), is intended to place the allotments mentioned therein on the same
footing as if they had been made under said agreement. It is simply a
remedial provision for the protection of allotments, the validity of which
might otherwise have been questioned. (Creek No. 722. Woodward v.
Wiley.)
2. Construction of Atoka agreement.
Section 29 of the act of June 28, 1898 (30 Stat, 495), does not operate
to confer citizenship rights upon Chickasaw freedmen, or to resurrect
occupancy rights of such persons long since deceased, or to revive such
rights to tracts of land theretofore abandoned. (Following Trahern v.
Russell, Chickasaw No. 9; Chickasaw No. 838, Trahern v. Russell.)
SUBPCENA — 1. Duces tccum, when granted.
The Commission is not required to issue a subpoena duces tecum where
the party complaining failed to request such a subpoena at the hearing.
(Chickasaw No. 460, Stallaby v. Ebisch.)
SURVEY — 1. Public, conclusive character of.
A survey made by authority of law, such as an improvement plat, is a
matter of record and evidence of the highest character ; a private survey
will not be accepted as sufficient to warrant a conclusion that the official
survey is incorrect. (Choctaw No. 778, Jones v. Betts.)
2. Changing line of town site, effect of.
It never was the intention, nor would it be equitable to allow a survey
line to change a lawful holding into an unlawful one, thereby transferring
valuable improvements of one person to another without any compensation
at all, or any prior right of the recipient to claim it. Thus where one
citizen had, without objection, put valuable improvements on land in a
town site, but subsequent survey showed the line to be without the town
site, the benefit of the improvements will not be lost to the first citizen.
(Cherokee No. 1591, La Hay v. Denton.)
3. Public, improvement plat, as evidence.
The rule that the returns of the surveyor-general and the record of a
survey made under his direction are evidence of the highest character and
that a private survey will not be accepted as sufficient to warrant a con
clusion that the official survey is wrong applies to improvement plats.
(Choctaw No, C68, Agent v. Rose.)
220 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
TENDER — 1. Keeping good, necessity of.
N., the citizen owner of improvements, made a written bill of sale to L.,
which recites that the consideration, $150, was due one-half on January 1,
1903, and one-half on January 1, 1904. On December 2, 1902, N. made
another bill of sale to M., contestant's remote grantor. On January 1, 1903,
L. made a good tender of the first half of the purchase price, but it was
refused by N. No further tender was made on either January 1, 1904, or
at the trial. During all the time one S., a noncitizen, was in possession of
the land as tenant, first under N., until the latter's sale to M., subsequent to
which time the latter and his vendee received the rents : Held, That L. and
his vendee, having failed to keep the tender good, they took nothing by the
first bill of sale, and contestant was entitled to the laud. (Chickasaw No.
731, Dunnigan v. Wilburn.)
TITLE — Alienation by gift. (See GIFT, par. 1.)
TOWN LOTS. (See IMPROVEMENTS, par. 27.)
TOWNSITE — Abandonment of; reversion of title. (See ABANDONMENT, par. G.)
Change of lines; rcsurvcy. (See SURVEY, par. 2.)
TRANSFER — 1. Evidence of.
The fact that a landlord who, it is claimed, has transferred the reversion
of the land keeps in his possession the lease contracts with the tenants in
possession is entitled to weight as evidence that no transfer was ever made.
(Choctaw No. 120, Wilson v. Simmons.)
2. Made after institution of contest.
A bill of sale executed after the institution of a contest is not binding on
the Commission. (Chickasaw No. 197, con. Jacobs v. Townsley.)
3. By noncitizen.
A transfer by a noncitizen of improvements on tribal lands conveys, of
itself, no interest in the improvements or land unless possession thereof is
taken by the citizen vendee, in which case the citizen obtains the right to
allot the land by virtue of such possession. (Choctaw No. 343, Morris v.
Walker.)
4. Oral, validity of.
A verbal contract for the transfer of improvements is valid and binding
as between the parties thereto, although not notice to the world. (Choc
taw No. 311, Pool v. Jackson.)
5. By widow of intestate; effect on rights of heirs.
A husband having died intestate and no settlement of his estate having
been made prior to a conveyance by the widow of the same, and the letters
of administration not having issued, the widow having only a life estate,
or dower right, to convey her deed, could not pass a fee-simple title to the
land attempted to be conveyed to the exclusion of other heirs. (Cherokee
No. 4, Williams v. Taylor.)
Oral. (See ORAL TRANSFER, pars. 1, 2.)
Of improvements, by corporation. (See CORPORATION, par. 1.)
Ry excessive holder. (See EXCESSIVE HOLDER, pars. 2, 3, 5, G.)
By applicant, pending final determination. (See APPLICANT, pars. 1, 2, 3, 4.)
By a citizen to noncitizen, effect of. (See ABANDONMENT, par. 3.)
By tenant, effect of. (See LANDLORD AND TENANT, pars. 9, 10, 11.)
TRESPASS — 1. What is.
One who takes possession of land not in the actual possession or improved
by others and stays upon the land, making improvements, with the acquies-
cense of others who later make claim to the land, is not a trespasser.
(Choctaw No. 305, Lewis v. Durant.)
TRIBAL LAWS — 1. Application of.
Whether the Commission should, in determining whether a party had
abandoned land in the Chickasaw Nation, take into consideration the pro
visions of the Chickasaw laws relating to that subject— Query? (Chicka
saw No. 334, Kemp v. Turnbull. )
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 221
TRIBAL LAWS — Continued.
2. Same.
Section 24 of the act of July 1, 1902 (32 Stats., G41), confers exclusive
jurisdiction on the Commission to the Five Civilized Tribes to determine
all matters relating to allotments, and it is not bound by the laws of the
Chickasaw Nation, nor required to notice them in making allotments
(Chickasaw No. 236, Hill v. Reynolds.)
3. Recognition by Commissioner.
While the Commissioner should not recognize tribal laws as controlling,
he has the right to consider the usages and customs of the citizens of the
Chickasaw Nation. (Chickasaw No. 701, Gaines v. Daugherty.)
4. Cherokee laws, abrogated by treaty.
The quarter-mile limit law of the Cherokee Nation (Compiled Laws of
the Cherokee Nation of 1892, 37(5) was abrogated by the passage of the act
of July 1, 1902. (32 Stats., 710.) (Cherokee No. 205, con. Reese v.
Reese; Cherokee No. 251, Audoe v. Jordan.)
UNDIVIDED INTERESTS — 1. Rights of oicncr of.
Where one citizen owns in severally improvements on 3 acres of a 10-
acre tract of land and an undivided one-third interest in 0.27 acres of the
remainder of the tract, he should be regarded, for purposes of allotment, as
owning 5.09 acres, and being the owner of the major portion, is entitled to
take the laud in allotment. (Chickasaw No. 29, Askew v. Sharp.)
USAGES AND CUSTOMS — Of tribe. (See TRIBAL LAWS, par. 3.)
UTILITY — Of land not to be considered in contest cases. (See ALLOTMENT,
par. 5.)
VALUE OF LAND — Consideration to be given to. (See DIVISION, par. 3.)
WAIVER — Of conditions of escrow. (See ESCROW, par. 1; ELECTION OF REME
DIES, par. 1.)
WILL — 1. Acquiescence in, acceptance of benefits under.
The nonacceptance or nonrejection of money arising from the sale of a
testate's property, in accordance with the terms of her will, which money
is placed by the contestee to contestant's credit in a bank outside the Indian
Territory, does not amount to an ncceptaiue of the provisions of the will
by contestant. Whether an acceptance of the money would have vested
in the contestee title to land owned by contestant, but attempted to be
devised to contestee in the will — Query? (Chickasaw No. 187, Watkins v.
Gooding.)
WITNESSES — 1. When disqualified.
Persons convicted of any of the offenses mentioned in section 2859 of
Mansfield's Digest are disqualified as witnesses before the commissioner,
and it is error to admit or consider their testimony. (Creek No. 719, Haw
kins v. Hawkins; also Chickasaw No. 1300, Alexander v. Bean.)
2. Disqualification, credibility.-
The mere fact that a witness had been arrested does not disqualify him,
nor does it tend to discredit him, there being no showing that there was
any conviction. (Chickasaw No. 197, con. Jacobs v. Townsley. )
3. Credibility of.
The fact that a person has served a term in the penitentiary for the
offense of disposing of mortgaged property, while insufficient to disqualify
him as a witness under section 2859 of Mansfield's Digest, is, nevertheless,
a fact which goes to his credibility as a witness, and in a close case would
turn the scales against the testimony of such a person. (Choctaw No.
343, Morris v. Walker.)
4. Same.
The evidence of a witness whose testimony is vacillating, contradictory,
and inconsistent is not entitled to much weight. (Chickasaw No. 701,
Games v. Daugherty.)
222 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
WITNESSES — Continued.
5. When disqualified; time of taking objection.
It is too late on appeal to take an objection to the competence of testi
mony on the ground of a witness's disqualification. (Creek No. 719, Haw
kins v. Hawkins.)
6. Omission of party to call.
The omission of a party to call a witness who might have been called by
the other party is no ground for the presumption that the testimony of the
witness would have been unfavorable. (Choctaw No. 654, Halsell v. Mid-
dleton. )
Interpreter for. (See INTERPRETER, par. 1.)
To Mil of sale, necessity for. (See BILL or SALE, par. 1.)
WRITTEN INSTRUMENTS — 1. Date of, presumption.
It is the presumption of law that instruments bear the date of their exe
cution. (Chickasaw No. 74, Oliver v. Chandler.)
PART IV.
HISTORY OF ALLOTMENT CONTEST CASES.
223
ALLOTMENT CONTEST CASES.
Statement showing the disposition and present status of allotment contest cases appealed from the
decisions of the Commission to the Five Civilized Tribes and Commissioner to the Five Civi
lized Tribes, and in which decisions on said appeals have been rendered, from July 1, 1904,
to May 31, 1906, inclusive.
CREEK.
No.
Title.
Decided by
Commission or
Commissioner.
Action of Com
missioner of
Indian Affairs.
Action of Secre
tary of the
Interior.
Status on
May 31, 1906.
131
Jacob Beams, guardian of
Feb. 29, 1904.
Affirmed May
Affirmed July
Case closed
Mitchell Beams, v. Solo
26, 1904.
16, 1904.
Aug. 8, 1904.
mon Taylor, for himself
and as guardian of Al
bert Taylor.
203
Millie A. Smith, guardian
Sept. 28, 1900;
Affirmed Oct.
Affirmed Dec.
Case closed
of Joseph B. Smith, jr.,
motion to
30, 1905.
23, 1905.
Jan. 26, 1906.
v. Willis Cully.
reopen de
nied May 5,
1905.
297
Nancy Taborn, guardian
Jan. 28, 1902. . .
Affirmed Mar.
Dismissed Oct.
Case closed
of Susie Taborn, v. Rob
27, 1902.
4, 1905.
Oct. 18, 1905.
ert Nero.
360
W. E. Gentry, guardian of
Oct. 3, 1902;
A ppeal di s-
Case closed
Nora Lcrblance,v.Leona
motion to
missedNov. 1,
Nov. 21, 1905.
Graves.
r e - f o r m
1905.
judgment
denied Sept.
29, 1904; mo
tion to re
view denied
Feb. 8, 1905.
597
Moses Deer, for his wife,
Feb. 29, 1904. .
Affirmed April
Affirmed July
Case closed
Ellen Deer, v. Polly Saw
20, 1904.
14, 1904.
Aug. 8, 1904.
yer, as natural guardian
of Amanda Sawyer, a
minor.
605
James Sapulpa, adminis
July 14, 1903. .
Affirmed in
Case closed
trator of estate of Willie
part and re-
Mar. 9, 1906,
Nukmellee, deceased, v.
linquishment
by waiver of
Noah Frank, Jeff D.
allowed as to
right to fur
Walker, on behalf of his
remainder,
ther appeal.
minor child, James
Mar. 5, 1906.
Dutcher Walker, inter
pleader.
622
Henry M. Harjo, for his
Mar. 30, 1904..
Reversed July
Affirmed Jan.
Case closed
minor daughter, Alice
Harjo, v. Robert Bruner.
25, 1904.
19, 1905; mo
tion to review
July 24, 1905.
denied Mar.
30, 1905; mo
tion to refer
to Attorney-
General de
nied July 1,
1905.
700
Cuffy Mclntosh v. Louis
Apr. 22, 1904 .
Affirmed June 2,
Affirmed July
Case closed
Ballard and Lucy Smith,
1904.
18, 1904.
Aug. 8, 1904.
as sole heirs of Mary Bal
lard, deceased.
719
Ross Hawkins v. Ellen
Mar. 11, 1905. .
Reversed Oct.
Affirmed Mar.
Case closed
Hawkins.
26, 1905.
24, 1906.
Apr. 7, 1906.
722
Peggy Woodward v. Su
May 24, 1904. .
Affirmed Oct.
Case closed
sanna Wiley, nee Jack
10, 1905.
Oct. 28, 1905.
son.
33753—00 M-
-15
225
226
LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
Statement showing the disposition and present status of allotment contest cases appealed from the
decisions of the Commission to the Five Civilized Tribes and Commissioner to the Five Civi
lized Tribes and in which decisions on said appeals have been rendered from July 1, 1904, to
May 31, 1906, inclusive — Continued.
CREEK— Continued.
No.
Title.
Decided by
Commission or
Commissioner.
Action of Com
missioner of
Indian Affairs.
Action of Secre
tary of the
Interior.
Status on
May 31, 1906.
738
Artra Snccd, father and
Oct. 0, 1903...
Affirmed Apr.
Affirmed June 7,
Case closed
natural guardian of The
15, 1904.
1904.
July 8, 1904.
odore Sneed, v. Eveline
Duff, as representative
of heirs of Edith J. Duff,
deceased.
759
Mary J. Burnette, mother
and natural guardian of
Myrtle Burnette, a mi
May 25, 1904..
Affirmed July
26, 1904.
Affirmed Sept.
21, 1904; mo-
tion to re
Closed Jan. 29,
1905.
nor, v. Josephine Berry
form final
and Adesta Berry, and
judgment de
J. II. Berry as father
nied Dec. 13,
and natural guardian of
Louisa Berry and Spire
1904.
M. Berry, minors, as
heirs of Frances Berry,
deceased.
772
Ilagar Tiger v. Jacob
Dec. 7, 1904.. .
C onto s t ant's
Closed Oct. 17.
Gooden.
w i t h d rawal
1905.
allowed" Oct.
9, 1905.
786
John Barnwell, as guard
ian of Delia Logan, a mi
Aug. 23, 1904. .
Appeal dis
missed Oct. 18,
Affirmed deci
sion of Oct.
Closed May 14,
1906.
nor, v. Thomas M.
1904; motion
24, 1905, on
Smith, as natural guard
to reconsider
Apr. 16, 1906.
ian of Martin W. Smith,
granted Nov.
a minor.
25,1904; Com
missioner af
firmed Oct.
24, 1905; mo
tion to recon
sider denied
Dec. 16, 1905.
803
Fannie C. Trent, a minor,
June 14, 1905. .
Affirmed Dec. 8,
Closed Jan. 15,
by Chancy Trent, her
1905.
1906.
mother and natural
guardian, v. Theney
Watson, a minor, by
Vina Watson, her moth
808
er and natural guardian.
Robert Ponds v. Warrior
Nov. 5, 1904. . .
Affirmed Oct. 5,
Affirmed Nov.
Closed Dec. 15,
Rentie.
1905.
22, 1905.
1905.
832
Mildred Porter, a minor,
Dec. 21, 1905. .
Affirmed Feb.
Closed Apr. 14,
by her father and natu
19, 1906; mo
1906.
ral guardian, William A.
tion to review
Porter, v. Sissie Haikey,
denied Mar.
a minor.
30, 1906.
CHEROKEE.
4
26
27
45
52
61
96
121
W infield Williams and Sa
rah A. Williams v. David
Taylor.
Mintie Barlow v. Mary
Brown.
John M. Ingram, as father
and natural guardian of
Georgia L. Ingram, a
minor, v. Lizzie Tarepen.
James Terrapen, for his
wife, Betsy Terrapen, v.
Joel M. Eaton.
Mary Jane Kuhn v. Emma
Ross, a minor.
Mary E. Alcorn v. Walter
Buford, a minor.
Susie C. Gray v. Joe C.
Lindsey.
Fannie C. Akin, as mother
and natural guardian of
Strange W. Akin, a mi
nor, v. Winnie Landrum.
Oct. 1, 1903. ..
June 14, 1904..
May 17, 1904 . .
Dec. 10, 1904 . .
Sept. 28, 1904 .
May 31, 1904..
do. .
Affirmed Aug.
29, 1904.
Affirmed Aug.
25, 1904.
Affirmed Sept.
3, 1904.
Affirmed Aug.
26, 1905.
Affirmed Mar. 1,
1905. .
Appeal dis
missed Oct. 9,
1905.
Affirmed Dec.
10, 1904.
Affirmed Dec.
22, 1904.
Affirmed Apr.
4, 1905.
Affirmed Jan.
12, 1905.
Affirmed Apr.
15, 1905.
Closed May 20,
1905.
Closed Feb. 24,
1905.
Closed May 20.
1905.
Closed Nov.
27, 1905.
Closed Mar. 29,
1905.
Closed Nov.
27, 1905.
Closed Jan. 20,
1905.
Closed Apr. 24,
1905.
Sept. 28, 1904 .
LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
227
Statement showing the disposition and present status of allotment contest cases appealed from the
decisions of the Commission to the Five Civilized Tribes and Commissioner to the Five Civi
lized Tribes and in which decisions on said appeals have been rendered from July 1, 1004, to
May 31, 1906, inclusive — Continued.
CHEROKEE— Continued.
No.
Title.
Decided by
Commission or
Commissioner.
Action of Com
missioner of
Indian Affairs.
Action of Secre
tary of the
Interior.
Status on
May 31, laOO.
138
Jesse Cochran, for his mi
June 20, 1904. .
Modified Sept.
Closed Nov
140
nor son, John Cochran,v.
David Taylor, sr.
William P Patterson v.
Dec. 10, 1904..
3, 1904.
Affirmed Feb.
15, 1904.
Closed Apr 6
143
Max Stewart, a minor.
Ruth B. Lynch v. Lanexa
Mar. 10, 1905..
27, 1906.
Affirmed Aug.
1906.
Closed Nov 27
184
J. Kerr.
Lora Adair, for her minor
Apr. 15, 1905..
18, 1905.
Affirmed Mar. 7,
1905.
Pending be
206
son, Olney M. Adair, v.
Amelia A. Lee.
John Reese, by Nancy
Sept. 28, 1904 .
1906.
Affirmed Feb.
fore the Sec
retary of the
Interior.
Do
251
Reese, his mother and
natural guardian, v.
Betsy Reese, a minor.
Nancy Andoe v. Carrie B.
Feb. 4, 1904...
19, 1906.
Affirmed Feb.
Do.
301
Jordan.
Mary E. Simmons v. La-
Feb. 4, 1905...
27, 1906.
Modified Feb. 7,
Closed Apr. 6,
319
vinia A. Duckworth.
Samuel Keys by Victoria
Dec 10 1904
1906.
Affirmed Aug.
1906.
Closed Nov 22
325
M. Keys, his mother and
natural guardian, v. Bes
sie B. Shaw.
PatsieRoss by Stick Ross,
Feb. 2, 1905
26, 1905.
Affirmed Feb.
1905.
Closed Apr. 4
329
her father and natural
guardian, v. Melvina N.
Leerskov, a minor.
Feb 4 1905
26, 1906.
Affirmed Mar. 2
1906.
Pending be
332
Donohoo.
Rosa Blackwell v Sterling
Apr 15 1905
1906.
Affirmed Aug.
fore the Sec
retary of the
Interior.
Closed Nov 27
361
P. Parks.
Fred A Kerr v Sam Shell
Dec. 10 1904
25, 1905.
Reversed Feb. 7,
1905.
Pending be
362
Bruce Garrett v. Napoleon
Apr. 15, 1905
1906.
Affirmed Mar. 3,
fore the Sec
retary of the
Interior.
Do.
428
F. Thomas, a minor.
Belle Baldridge by Colum
Feb. 23, 1905
1906.
Affirmed Feb.
Closed Apr. 6,
597
bus Baldridgc, her father
and natural guardian, v.
Stephen E. Dawson, a
minor.
Ethel Grimmett by Hen
Apr. 15 1905
26, 1906.
Affirmed Mar. 2,
1906.
Pending be
549
derson Grimmett, her
father and natural
guardian, v. Stephen E.
Dawson, a minor.
Fred A Kerr v Huckle
do
1906.
Reversed Feb. 7
fore the Sec
retary of the
Interior.
Do.
597
berry Shell, a minor.
Jonathan Whitmire v
Oct 4 1905
1906.
Reversed and
Ponding be
629
Mary E. Payne and
Sarah J. Bird, intervener.
Oct 30 1905
- case reopened
Jan. 9, 1906.
Affirmed Jan
fore Com
missioner.
Closed Mar. 22
641
Moses Daugherty, her
father and natural
guardian, v. Nancy A.
Miller, a minor.
Dot F Trott v George A
Mar 16 1905
19, 1906.
Affirmed Feb
1906.
Pending be
710
Gilstrap.
Jefferson Lewis v Albert
Oct. 4, 1905
24, 1906.
Affirmed Apr.
fore the Sec
retary of the
Interior.
Awaiting fur
830
1020
Lee Evans, a minor.
Ella E. Heady, by her hus
band, Joshua B. Heady,
v. Samuel Bob, a minor.
Mary \ Choate v Anna C
May 16, 1905 . .
Dec. 10 1904
24, 1906.
Affirmed July
22, 1905.
Affirmed Sept
Modified and re
hearing or
dered Oct. 21,
1905.
ther action
of the par
ties.
Pending be-
foretheCom-
missioner.
Pending be
Nave.
19, 1905.
fore Secre
tary of In
terior.
228
LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
Statement showing the disposition and present status of allotment contest cases appealed from the
decisions of the Commission to the Five Civilized Tribes and, Commissioner to the Five Civi
lized Tribes and in which decisions on said appeals have been rendered from July 1, 1904, to
May 31, 1906, inclusive — Continued.
CHEROKEE— Continued.
1284
1439
1441
1591
Lewis Ross v. Susan Leo-
ser.
Luvinia Downing v. Em-
mett M. Adair, a minor.
William W. Duncan, by J.
T. Sheffield, his guardian,
v. Ellis A. Akin, a minor.
Joseph M. La Hay v. Effie
Denton as administra
trix of the estate of
Frank Denton, deceased.
June 5, 1905...
Aug. 30, 1905..
June 19, 1905..
.do
Affirmed May 7,
190G.
Affirmed Feb.
24, 1906.
Affirmed May 5,
1906.
Affirmed May 7,
1906.
Awaiting fur
ther action
of parties.
Pending be
fore Secre
tary of In
terior.
Case closed
May 31,1906.
Awaiting fur
ther action
of parties.
CHOCTAW.
1
2
7
31
Con.
42
Con.
119
Con.
120
Con.
126
127
142
155
Con.
172
179
251
278
Inez Turnbull v. Salena
Ball.
Minnie Neal v. Charles O.
Ward.
Minnie Neal v. Henry Lee
Ward, a minor.
Isom Pickens v. Mary
Stewart et al.
Ellis D. Freeny, a minor, v.
Jewel Dillard, a minor,
and Virgie M. Dillard, a
minor.
Grace Garland, a minor, v.
Louisa McDaniel.
Fannie Wilson v. John
Simmons.
Annie Folsom, a minor, by
her father John N. Fol
som, v. Selina Holton.
Richard P. Jennings v.
McCurtain Lester, a
minor.
Joseph Armstrong, a mi
nor, by his legal guard
ian, Christopher C.
Choate, v. Winnie E.
Byington.
Willie E. Dodson et al. v.
heirs of Daniel Moses, de
ceased, et al.
Nellie Beatrice Wadley, a
minor by her father,
George L. Wadley, v.
Hester A. Barbour.
Susan Dillon, administra
Dec. 23, 1903 ..
Dec. 30, 1903 . .
do
Affirmed Apr. 7,
1904.
Affirmed Apr.
28, 1904.
Affirmed Apr.
29, 1904.
Reversed June
1, 1904.
Affirmed Dec. 9,
1904.
Affirmed Aug. 9,
1904.
Affirmed Mar.
26, 1906.
Affirmed Dec.
20, 1905.
Affirmed Nov.
11, 1905.
Affirmed Dec. 7,
1904.
Affirmed Jan.
11, 1905.
Affirmed in part
k and reversed
in part Mar.
13, 1906.
Affirmed Jan.
16, 1905.
Appeal d i s-
missed Mar.
26, 1906.
Affirmed Dec. 2,
1905.
Affirmed July
21, 1904.
Closed Oct. 17,
1904.
Closed July 1,
1904.
Do.
Closed Feb. 12.
1906.
Closed Feb. 23,
1905.
Closed Oct. 20,
1904.
Closed May 11,
1906.
Closed Feb. 12,
1906.
Closed Jan. 16,
1906.
Closed Sept.
18, 1905.
Closed June 7,
1905.
Pending be
fore the Sec
retary of the
Interior.
Closed Mar. 7,
1905.
Closed May 17,
1906.
Pending be
fore the Sec
retary of the
Interior.
Dec. 23, 1903 . .
Aug. 22, 1904..
May 8, 1904 . . .
Apr. 19, 1905. .
Dec. 6, 1904 . . .
Oct. 10, 1904..
Oct. 26, 1904 . .
Aug. 22,1904..
Mar. 13,1905..
Oct. 12, 1904 . .
May 5, 1905 . . .
Jan. 26, 1905 . .
Affirmed Dec.
18, 1905.
Affirmed Julys,
1905.
Affirmed Apr.
15, 1905.
trix of estate of Annie
Small wood, deceased, v.
Jewel Dillard, a minor.
Charles A. Bilbo v. Bar
bery Belvin, a minor, et
al.
Eveline Harris, a minor,
by her legal guardian,
Nathan Harris, v. Wil
liam T. Smith.
LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
229
Statement showing the disposition and present status of allotment contest cases appealed from the
decisions of the Commission to the Five Civilized Tribes and Commissioner to the Five Civi
lized Tribes and in which decisions on said appeals have been rendered from July 1, 1904, to
May 31, 1906, inclusive — Continued.
CHOCTAW— Continued.
No.
Title.
Decided by
Commission or
Commissioner.
Action of Com
missioner of
Indian Affairs.
Action of Secre
tary of the
Interior.
Status on
May 31, 1906.
305
Cynthia Eudora Lewis v.
Feb. 2, 1905 " .
Affirmed Nov.
Closed Jan. 10,
311
Martha Durant.
Ike K. Pool, a minor, bv
Sept. 29, 1904 .
17, 1905.
Reversed Nov.
1906.
Awaiting fur
319
331
his father and natural
guardian, Ike K. Pool, v.
Louisa E. F. Jackson.
Sarah A. Gilmore v. Jake
Story, a minor.
Henry C. Nash v. James S.
Aug. 24, 1904..
Mar. 31, 1905..
7, 1905.
Affirmed Nov.
28, 1904.
Affirmed Mar.
ther action
of parties.
Closed Jan. 6,
1905.
Pending be
330
343
357
Locke.
Lizzie Nash v. Edgar O.
Oakes, a minor.
Bolle Morris (ne'e Lewis) v.
Edward E. Walker.
Charles T Perry v. Jerry J.
Oct. 13, 1904..
Jan. 26, 1905 . .
Sept. 29, 1904
19, 1906.
Affirmed Jan.
16, 1905.
Affirmed Nov.
24, 1905.
Affirmed Nov.
Affirmed May
12, 1905.
Appeal d i s-
missed Apr.
16, 1906.
fore the Sec
retary of the
Interior.
Closed June 16,
1905.
Awaiting fur
ther action
of parties.
Closed Dec. 29,
404
413
McMurtry.
Colbert Anderson v. Jennie
McDaniel.
Roar Hudson v. Richard
Dec. 0, 1904...
Nov. 5, 1904...
1,1905.
Affirmed Nov.
16, 1905.
Affirmed Nov.
1905.
Closed Jan. 12,
1906.
Closed Dec. 19,
424
McKinney.
Frank Pebworth a minor
Feb. 24, 1905
1, 1905.
Affirmed Feb. 2
1905.
Closed Apr. 5,
431
by his father and natural
guardian, Joseph Peb
worth, v. Essie Wright.
Josephine Thompson v.
Dec. 6, 1904 . .
1906.
Affirmed Jan.
1906.
Closed Mar. 7,
454
Leona McKinney.
John Mayo, a minor, by
do
13, 1900.
Modified Jan.
1906.
Closed Mar. 9,
497
his father and natural
guardian, J. B. Mayo, v.
Nettie W. Payte.
Carrie A Robinson v. Sib-
do
27, 1906.
Affirmed Oct.
1906.
Closed Dec. 29,
523
bie Bully.
William Barrows a minor,
Mar. 11, 1905
31, 1905.
Affirmed Mar. 2,
1905.
Closed May 4,
549
by his father and natural
guardian, Dennis Bar
rows, v. Maxey Welch.
Robert N. Page, by his
May 19, 1905.
1906.
Reversed Mar.
1906.
Pending be
552
father and natural
guardian, Robert Page,
v. Maggie Andrews.
Webster Colbert a minor
Jan. 2 1905
21,1906.
Affirmed Nov.
fore the Sec
retary of the
Interior.
Closed Jan. 4,
501
by his father and natural
guardian, Charlie Col
bert, v. Silas Lewis.
Ben McCann, a minor, by
June 2, 1905
18, 1905.
Reversed Apr.
1906.
Closed May 31,
505
his adopted father, Silas
Bacon v. David Coone.
John Moore v, David Mc
June 30, 1905
12, 1906.
Affirmed Apr.
1906.
Awaiting fur
on.
G54
Kinney.
Susan Halsell v Charles P.
Apr. 27 1905
19, 1906.
Affirmed Apr.
ther action
of parties.
Do.
Con.
GG8
. 778
858
Middleton.
Charles C. Agent, a minor,
by his mother and natu
ral guardian, Annie G.
Agent, v. Norman C.
Rose.
Marcus A. Jones v. Bettie
Betts.
Walter Hampton, a minor,
June 28, 1905 . .
Mar. 31, 1905...
June 2, 1905 . . .
12, 1906.
Affirmed Apr.
11, 1906.
Affirmed Jan.
26, 1906.
Affirmed Apr.
Do.
Closed Apr. 5,
1906.
Closed May 31,
874
by his father, Julius C.
Hampton, v. Cecil A. Bil
bo.
Mary Ann Ellis v. Travis
June 27, 1905
5, 1906.
Affirmed Apr.
1906.
Awaiting fur
883
Williams.
Walter J Huddleston v.
June 2 1905
26, 1906.
Affirmed Apr.
ther action
of parties.
Closed May 31,
Flavins J. Gilmore.
3, 1906.
1906.
230
LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
Statement showing 1he disposition and present status of allotment contest cases appealed from the
decisions of the Commission to the Five Civilized Tribes "and Commissioner to the Five Civi
lized Tribes and in which decisions on said appeals have been rendered from July 1, 1904, to
May 31, 1906, inclusive — Continued.
CIIICKASAW.
No.
Title.
Decided by
Commission or
Commissioner.
Action of Com
missioner of
Indian Affairs.
Action »f Secre
tary of the
Interior.
Status on
May 31, 1906.
16
Daniel Hayes r. Julia F.
May 26, 1904...
Affirmed Oct. 6,
Affirmed Dec. 8,
Pending be
Brashears and W. II. L.
1904.
1905.
fore the Sec
Campbell, intervener.
retary of the
Interior on
motion for
review and
rehearing.
19
Con.
Adam Sealey v. Walter
Marion Stidham, a mi
Oct. 15,1004...
Reversed Oct.
31,1905.
Remanded Jan.
25, 1906.
Pending be-
f o r e Com
nor.
missioner.
28
Emily Keno, for her minor
June 18, 1904 . .
Affirmed Oct.
Closed Nov.
child, Lizzie Keno, v.
12, 1904.
30, 1904.
Frank Fillmorc, by his
father and natural
guardian, Benjamin
Franklin Fillmore.
29
Julius Askew v. Sallie
Aug. 24. 1904;
Affirmed Jan. 9,
Affirmed May 3,
Awaiting fur
Sharp.
motion for
1900.
1906.
ther action
rehear i n g
of parties.
denied Mar.
14, 1905.
34
Mordecia B. Donaghey v.
Jan. 12, 1905...
Affirmed Sept.
Affirmed Mar.
Motion for re
George Colbert.
26, 1905.
21,1906.
view fi 1 e d
Apr. 23, 1906.
59
Susan Harris, as mother
Apr. 27, 1904. . .
Affirmed Oct.
Closed Dec. 12,
and natural guardian of
20,1904.
1904.
Jackson Emerson, a mi
nor, v. Riley Davis, as
father and natural
guardian of Annie Davis,
a minor.
63
Bessie Jewel McKinney, a
minor, by her father and
July 2, 1904....
Reversed Dec.
5, 1904.
Commission af
firmed Mar.
Closed Apr. 27,
1905.
natural guardian .Char
13, 1905.
ley McKinney, v. Juanita
Perry, a minor, by her
•
mother and natural
guardian, Annie Perry.
72
Marietta E. Oliver v. An
May 26, 1904. . .
Affirmed Sept.
Affirmed Jan.
Closed Mar. 13,
nie Bell Scroggins, a mi
2, 1904.
27, 1905.
1905.
nor, by her guardian,
Nettie Chandler.
74
Thomas J. Oliver, a mi
Apr. 20, 1905..
Affirmed Oct.7,
Affirmed Dec.
Closed Feb. 20,
nor, bv his mother,
1905.
21, 1905.
1906.
Marietta E. Oliver, v.
Nettie Chandler.
86
Sarah Wright v. Siney
Aug. 22, 1904..
Affirmed Jan.
Affirmed Jan.
Closed Mar. 3,
Homma, a minor.
11, 1905.
27, 1905.
1905.
92
Vicey Steward v. Albert
Mar. 15, 1904..
Appeal d i s-
Closed July 20,
Johnston.
missed June
1904.
4, 1904.
104
Bartholomew Lane, jr., v.
Jan. 24, 1905...
Affirmed Dec.
Pending on
Ophelia Apala.
6, 1905.
appeal as to
part before
the Secre
tary of the
Interior.
187
Emma A. Watkins v.
Jan. 12, 1905,
Affirmed Sept.
Affirmed Nov.
Pending be
Con.
Charles Holmes Good-
in favor of
13, 1905.
17, 1905; de
fore the Sec
ing.
contestant.
cision of Nov.
retary of the
17, 1905, re
Interior on
scinded Feb.
motion for
6, 1906, and
review.
decision ren
dered in favor
of contestee.
197
John B. Jacobs v. Rosic
May 16, 1905
Affirmed May 1,
Awaiting fur
Townsley, a minor.
1906.
ther action
of the par
ties.
LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
231
Statement showing the disposition and present status of allotment contest cases appealed from the
decisions of the Commission to the Five Civilized Tribes and Commissioner to the Five Civi
lized Tribes and in which decisions on said appeals have been rendered from July 1, 1904, to
May 31, 1906, inclusive — Continued.
CHICKASAW-Continued.
No.
Title.
Decided by
Commission or
Commissioner.
Action of Com
missioner of
Indian Affairs.
Action of Secre
tary of the
Interior.
Status on
May 31, 1906.
221
Con.
Emily Kemp v. Josephine
Reichert.
Aug. 24, 1904..
Reversed Dec. 3,
1904.
Commission af
firmed in part
Pending be-
f o r e the
and cause re
Secretary of
manded for
the Interior.
further hear
ing as to re
mainder Nov.
17, 1905.
236
J. B. Hill, by his mother.
Jan. 3, 1905
Affirmed Dec.
Do.
Nellie B. Hill, v. Frank
11, 1906.
Reynolds, a minor.
256
Nelson Wolfe v. Willie
May 27, 1904..
Affirmed Aug.
Closed Sept.
Shoemaker.
8, 1904.
22, 1904.
301
Henry Factor, by his next
friend, Jemima Kemp, v.
Nov. 23, 1904;
motion for
Appeal dis-
missed Mar.
Affirmed Apr.
25, 1906.
Awaiting fur
ther action
Napoleon Bryant.
rehe a r i n g
1, 1906.
of the par
and review
ties.
denied May
17, 1905.
334
Penelope Catherine Kemp
v. Jesse James Turnbull,
Jan. 30, 1905...
Reversed Oct.
14, 1905.
Appeal dis-
missed Jan. 9,
Do.
a minor.
1906; decision
of Oct. 14,1905,
affirmed; mo
tion to review
denied Apr. 21,
1906.
363
E. B. Johnson v. Bryan
Jan. 12, 1905...
Affirmed Dec.
Affirmed May 2.
Do.
Goklsby, a minor.
30, 1905.
1906.
493
Sam Tildcn Colbert v.
Oct. 18, 1904...
Affirmed Dec.
Closed Feb. 9,
Hudson Frazier.
21, 1904.
1905.
639
Con.
Ellen Sullivan, a minor
by her legal guardian,
Daniel Sullivan, v. Fran
Jan. 12, 1905...
Affirmed Jan. 5,
1906.
Appeal dis
missed May 4,
1906.
Awaiting fur
ther action
of parties.
ces Melville.
726
W. J. Leslie v. Christian
Dec. 9, 1904...
Reversed Sept.
Modified Jan. 30,
Pending be
Frederick Ebisch.
16, 1905.
1906.
fore the Sec
retary of the
Interior on
motion to
rehear and
review.
731
LelaDunigan, administra
trix of estate of Ethel
Apr. 6, 1905....
Affirmed Mar.
9, 1906.
Pending be
fore the Sec
Jennie Belle Dunigan, de
retary of the
ceased, v. Sarah Wil-
Interior.
burn, a minor.
943
Eula Barker, by her attor
May 8, 1905 . . .
Affirmed Apr.
Do.
ney in fact, Vester T.
2,1906.
Tinsley, v. Alberta Car
ter, a minor.
950
Anderson Ilolton, by his
legal guardian, Israel
Sharkey, v. Campbell
Apr. 20, 1905 . .
Affirmed Mar. 8,
1906.
Affirmed May
14, 1906.
Pending be
fore the Sec
retary of the
James.
Interior on
motion to
review.
1069
Willie Kaney v. Estella
Apr. 6, 1905
Affirmed Mar.
Pending be
Con.
Kemp, a minor.
15, 1906.
fore the Sec
retary of the
Interior.
1202
Catherine Byars v . Nettie
May 27, 1905
Affirmed May 3,
Awaiting fur
Francis Carter.
1906.
ther action
of parties.
1324
John 'Alexander v< Frank
May 18, 1905.
Affirmed May 7
Do.
Con
R. Stidham.
1906.
1383
Willie Ilassell v. Jerome
Mar. 27, 1905. .
Granted con
Closed May 3,
Con.
Ervin Quincy.
testant's mo
1906.
tion to dis
miss contes-
tee's appeal,
Mar. 14, 1906.
232
LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
Statement showing the disposition and, present status of allotment contest cases appealed from (he
decisions of the Commission to the Five Civilized Tribes and Commissioner to the Five Civi
lized Tribes and in which decisions on said appeals have been rendered from July 1, 1904, to
May 31, 1906, inclusive— Continued.
CHICKASAW— Continued.
No.
Title.
Decided by
Commission or
Commissioner.
Action of Com
missioner of
Indian Affairs.
Action of Secre
tary of the
Interior.
Status on
May 31, 1906.
1392
Rosa Lorina Finley, a
Apr. 6, 1905
Affirmed Mar.
Pending be
1575
minor, v. Martha G. Self,
a minor.
Willie Fisher by his legal
June 19 1905
23, 1906.
Affirmed May
fore Com
missioner of
Indian Af
fairs on mo
tion to re
hear.
Awaiting fur
Con.
1609
guardian, Frank A. Bon
ne™. Louis Pebsworth,
a minor.
Mamie Reynolds, by her
June 29, 1905 .
22, 1906.
Affirmed May
ther action
of parties.
Do.
father and natural
guardian, Darius Reyn
olds, v. Lonzo E. Cara
way, a minor.
23, 1906.
PART V.
RULES OF PRACTICE IN CHOCTAW, CHICKASAW, AND
CHEROKEE CONTEST CASES.
233
RULES OF PRACTICE IN CHOCTAW, CHICKASAW, AND CHEROKEE
CONTEST CASES.
RULES OF PRACTICE.
COMMISSION TO THE FIVE CIVILIZED TRIBES,
Muscogce, Ind. T., March 17, 1903.
The following Rules of Practice in Choctaw, Chickasaw, and Cherokee allot
ment contest cases, approved by the Department January 27, 1903, and March 9,
1903, are hereby promulgated for the information and guidance of all concerned."
THE COMMISSION TO THE FIVE CIVILIZED TRIBES,
TAMS BIXBY, Chairman.
INITIATION OF CONTESTS.
Rule 1. Contests may be initiated by or on behalf of an adverse claimant
against any party by or for whom a selection of land has been made in the
Choctaw, Chickasaw, or Cherokee nations, for any sufficient cause affecting the
right of possession of the land in controversy, by selecting the same land and by
filing a complaint with the Commission to the Five Civilized Tribes at the land
office in the nation in which the land lies.
Rule 2. When the allottee is deceased the contest shall be brought against
the heirs of such deceased allottee and the complaint shall state the names of
all the heirs. If the heirs, or any of them, are nonresidents of Indian Terri
tory, or unknown, the complaint shall set forth the fact and be corroborated
with respect thereto by the affidavit of one or more persons.
Rule 3. The complaint must conform to the following requirements :
(a) It must be written or partly written and partly printed.
(ft) It must describe the land involved.
(c) It must state the land office where, the date when, and for whom the
contestant selected said land.
(d) It must make party contestee the person who, by himself or through
another, originally selected the land in controversy, and state the date of such
selection and by whom made.
(e) If the contestee is an infant or a person of unsound mind, the complaint
shall so state, and shall also state the name of the guardian of such infant or
person of unsound mind, if there be one, and if there be none the complaint
shall state the name of the person having the infant or person of unsound mind
in charge.
(/) It must set forth the facts which constitute the grounds of contest.
(0) It must be duly verified.
NOTICE OF CONTEST.
Rule 4. At least thirty days' notice shall be given of all hearings before the
Commission, unless by written consent an earlier day shall be agreed upon.
Rule 5. Notice of contest and summons must be made upon the blanks pre
pared and supplied by the Commission, and must give a description of the land
involved, state the time and place of the hearing, and, except in cases of notice
by publication, have a copy of the complaint attached.
o Rules 25 and 26 were amended by the Department on November 7, 1905,
which amendments are incorporated in said rules.
235
286 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
.SERVICE.
Rule 6. Personal service shall be made in all cases where the party to be
served is a resident of Indian Territory, except as provided in rule 9, and shall
consist in the delivery of a copy of the notice and summons to each of the eon-
testees.
Rule 7. If the person to be personally served is an infant or a person of un
sound mind, service shall be made by delivering a copy of the notice and sum
mons to the guardian of such infant or person of unsound mind, if there be one.
If there be none, then by delivering a copy to the person having the infant or
person of unsound mind in charge, and also to the person who made the selec
tion for such infant or person. And if the contestee is a prisoner, convict, aged
and infirm person, or soldier or sailor of the United States on duty outside of
the Indian Territory, service shall be made as herein otherwise provided, and a
copy of the notice and summons shall also be served on the person who made the
selection for such- prisoner, convict, aged and infirm person, soldier, or sailor.
Rule 8. Personal service may be executed by any officer or person.
Rule 9. Notice may be given by publication only when it is shown by affidavit
presented on behalf of the contestant, and by such other evidence as the Com
mission may require, that due diligence has been used, and that personal serv
ice can not be made, or that the person to be served- is a nonresident of Indian
Territory, or that the heirs of a deceased allottee against whom the contest is
brought are unknown. The affidavit must also state the present post-office
address of the person intended to be served, if it is known to the affiant, and
must show what effort has been made to obtain personal service.
NOTICE BY PUBLICATION.
Rule 10. Notice by publication shall be made by advertising at least once a
week for four successive weeks in some newspaper published in the nation where
the land in contest lies. The first insertion shall be at least thirty days prior to
the day fixed for the hearing.
Rule 11. Where notice is given by publication, a copy of the notice shall, at
least thirty days before the day fixed for the hearing, be mailed by registered
letter to each person to be notified at the last address, if any, given by him, as
shown by the records of the Commission, and to him at his present address
named in the affidavit for publication required by rule 9, if such present address
is stated in such affidavit and is different from his record address. If there be
no such record address, and if no present address is named in the affidavit for
publication, then a copy of the notice shall be so mailed to him at the post-office
nearest to the land. A copy of the notice shall also be posted in the land office
where the contest is pending for a period of at least thirty days before the day
fixed for the hearing, and still another copy thereof shall be posted in a con
spicuous place on the land for at least two weeks prior to the day fixed for the
hearing.
PROOF OF SERVICE OF NOTICE OF CONTEST AND SUMMONS.
Rule 12. Proof of personal service of notice of contest and summons shall be
the written acknowledgment of the person served or the affidavit of the person
who served the notice, attached thereto, stating the time, place, and manner of
service.
Rule 13. Where service is by publication, the proof of service shall be a copy
of the advertisement, with the affidavit of the publisher or foreman attached
thereto, showing that the same was successively inserted the requisite number
of times, and the date thereof. Proof of service by mail and by posting a copy
of the notice on the land shall be the affidavit of the person who mailed the
notice, with the post-office receipt for the registered letter attached thereto, and
the affidavit of the person who posted the notice on the laud.
DISMISSALS.
Rule 14. Cases will be called for trial on the day and at the hour fixed for the
hearing, and if the contestant makes no appearance the case will be dismissed
for want of prosecution, in which event written notice of such action, by personal
service or registered letter, _shall be given by the Commission to the parties in
interest or their attorneys,
LAWS AFFECTING THE FIVE CIVILIZED TRIBES. 237
CONTINUANCES.
Rule 15. A postponement of a hearing to a clay to be fixed by the Commission
may, for a valid reason, be allowed on the day of trial ; and when the continu
ance is asked for on account of the absence of material witnesses, the party ask
ing for the continuance shall file an affidavit showing :
(a) That one or more of the witnesses in his behalf is absent without his
procurement or consent.
(6) The name and residence of each absent witness.
(c) The facts to which they would testify if present.
(d) The materially of the evidence.
(c) The exercise of proper diligence to procure the attendance of the absent
witnesses.
(f) That affiant believes said witnesses can be had at the time to which it is
sought to have the trial postponed.
RULE 16. No continuance shall be granted on account of the absence of wit
nesses when the opposing party shall admit that the witnesses would, if present,
testify to the statements set out in the motion for a continuance.
TRIALS.
Rule 17. Upon the trial of a contest the Commission will, in all cases when
deemed necessary, personally direct the examination of witnesses in order to
draw from them all facts within their knowledge requisite to a correct conclu
sion of any point connected with the case.
Rule 18. Due opportunity will be allowed opposing parties or their counsel
to confront and cross-examine the witnesses introduced by either party.
Rule 19. Upon the day originally set for hearing and upon any day to which
the trial may be continued the testimony of all the witnesses present shall be
taken and reduced to writing. When testimony is taken in shorthand, the
stenographer's notes must be written out and the written testimony then and
there subscribed by the witness and attested by the officer before whom the
same is taken, unless the parties, or their counsel, shall, by stipulation in
writing, agree that the transcript of the stenographer's notes, duly verified,
shall be considered the testimony of the witnesses with the same force and
effect as if it had been signed by the witnesses.
REINSTATEMENT, REHEARING, AND REVIEW.
Rule 20. Motions for reinstatement, after dismissal, as provided in rule 14,
and for rehearing or review, must be filed within twenty days from service of
notice of the final order or decision in case of personal service of said notice
and within thirty days in case of service of said notice by registered letter, said
motion first having been served on the opposite party or his attorney either
personally or by registered letter. The party on whom the motion is served
will be allowed the same length of time after service of motion in which to
file a reply, service thereof first having been had on the opposite party or his
attorney either personally or by registered letter.
Rule 21. Motions for rehearing or review must be accompanied by an affidavit
of the party or his attorney to the effect that the motion is made in good faith
and not for the purpose of delay.
Rule 22. In case of failure to file a motion to reinstate, or for rehearing or
review, within the time prescribed by rule 20 the case will be regularly closed.
PROOF OF SERVICE OF MOTIONS, REPLIES, ETC.
Rule 23. Proof of personal service of motions, replies, etc., shall be the
same as that required by rule 12. Proof of service of motions, replies, etc., by
registered letter shall be the affidavit of the person who mailed the letter, with
the post-office receipt therefor attached, and said affidavit shall state that the
letter for which the receipt was given contained a copy of the original motion,
etc., as the case may be. And in all cases of service by registered letter the
time allowed for filing motions, replies, etc., shall begin to run from the date
of the post-office receipt for said letter.
238 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
WITNESSES.
Rule 24. All costs incident to the attendance of witnesses in proceedings in
allotment contest cases shall be paid by the respective parties to the contest
by whose request they have been subpo3iiaed.
APPEALS TO THE INDIAN OFFICE AND THE DEPARTMENT.
Rule 25. Appeals from the final order or decision of the Commission lie
in every case to the Commissioner of Indian Affairs and from his decision to
the Secretary of the Interior, and twenty days will be allowed for appeal
and argument from date of service of notice of the decision in case of per
sonal service and thirty days in case of service by registered letter. All
appeals and arguments must be served on the opposite party, or his attorney
of record, either personally or by registered letter within the time allowed for
appeal, and appellee shall have the same length of time after service of
appeal and argument in which to file a reply and to serve the same or a copy
thereof on the appellant or his attorney of record. When an appeal is con
sidered defective, the party or his attorney will be notified of the defect, and if
not amended within fifteen days from the date of service of such notice the
appeal may be dismissed by the officer to whom the appeal is taken. All
appeals and arguments in connection therewith and replies thereto must be
filed in the office wherein the decision to be affected by such appeal was made
or in the office of the Commissioner to the Five Civilized Tribes for transmis
sion to the office to which the appeal is taken. Notice of all decisions must be
served upon the attorney of record, and time will begin to run from such notice.
MOTIONS FOB BEHEABINGS AND BEVIEWS.
Rule 26. Motions for rehearings or for review of decisions of the Indian
Office or of the Department and replies thereto must be served as provided in
Rule 20 and filed within the time provided in that rule in the office wherein
the decision to be affected by the motion was made or in the office of the
Commissioner to the Five Civilized Tribes for transmission to the officer to
whom the motion is addressed.
PART VI.
REGULATIONS GOVERNING THE RECOGNITION OF AGENTS
AND ATTORNEYS BEFORE THE COMMISSION TO THE
FIVE CIVILIZED TRIBES AND LAND OFFICES
ESTABLISHED BY SAID COMMISSION.
239
REGULATIONS GOVERNING RECOGNITION OF AGENTS AND ATTORNEYS*
COMMISSION TO THE FIVE CIVILIZED TRIBES,
Muscogce, IncL T., March 30, 1901.
The following regulations governing the recognition of agents and attorneys
before the Commission to the Five Civilized Tribes and land offices established
by said Commission, approved by the Secretary of the Interior March 20, 1901,
are promulgated for the information and guidance of all concerned.
By order of the Commission :
TAMS BIXBY, Acting Chairman.
REGULATIONS.
1. Any attorney nt law who desires to represent claimants before the Com
mission to the Five Civilized Tribes or any land office established by said Com
mission shall file a certificate of the clerk of the United States, State, or Terri
torial court, the territorial jurisdiction of which includes such attorney's place
of residence, duly authenticated under the seal of the court, that he is an
attorney in good standing.
2. Any person (not an attorney at law) who desires to appear as agent for
claimants before the Commission to the Five Civilized Tribes or before any
land office established by the Commission must file a certificate from a judge
of the United States, State, or Territorial court, the territorial jurisdiction of
which includes such person's place of residence, duly authenticated under the
seal of the court, that such person is of good moral character and in good
repute, possessed of the necessary qualifications to enable him to render claim
ants valuable service, and otherwise competent to advise and assist them in the
presentation of their claims.
3. The Commission may demand additional proof of qualifications of attor
neys and agents and may decline to recognize any attorney or agent applying
to represent claimants when the interests of claimants or of the public will be
thereby subserved.
4. The oath of allegiance required by section 3478 of the United States Re
vised Statutes must also be filed.
5. In case of a firm, the names of the individuals composing the firm must be
given, and a certificate and oath as to each member of the firm will be required.
G. An applicant for admission to practice under the above regulations must
address a letter to the Commission inclosing the certificate and oath above
required, in which letter his full name and post-office address must be given.
He must state whether or not he has ever been recognized as attorney or agent
before the Interior Department or any bureau thereof; and if so, whether he
has ever been suspended or disbarred from practice.
7. Whenever an attorney or agent is charged with improper practices in con
nection with any matter before said Commission, or any land office established
by said Commission, the Commission will investigate the charge, giving the
attorney or agent due notice, together with a statement of the charge against
him, and allow him an opportunity to be heard in the premises. When the
investigation shall have been concluded all the papers will be forwarded to the
Secretary of the Interior with a statement of the facts and such recommenda
tion as to disbarment from practice as the Commission may deem proper, for
the consideration of the Secretary of the Interior. During the investigation
33753— OG M 16 241
242 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
the attorney or agent may be suspended from practice by the Commission if
the charges" are grave and the probability of their truth is great.
8. If any attorney or agent in good standing before the Commission shall
knowingly employ as subagent a person not authorized to practice before the
Commission, it will be sufficient reason for the disbarment of the former.
9. It will also be sufficient cause for disbarment that any attorney is incom
petent, disreputable, or that he refuses to comply with the rules and regula
tions of the Commission, or that he, with intent to defraud, in any manner
deceives, misleads, or threatens any claimant by word, circular, letter, or
advertisement.
10. These rules shall be applicable to attorneys or agents employed, or seek
ing employment, by individuals, a tribe or any body of Indians or freedmen.
11. Rule 30 of the rules of practice prescribed by the Commission and ap
proved by the Secretary of the Interior July 18, 1899, is hereby rescinded.
Approved :
E. A. HITCHCOCK, Secretary.
PART VII.
CHOCTAW AND CHICKASAW ENROLLMENT CASES:
REGULATIONS OF COMMISSIONER OF JANUARY 2, 1906, RELA
TIVE TO PETITIONS FOR REHEARING UNDER THE LOULA
WEST, MARY ELIZABETH MARTIN, AND JOE AND
DILLARD PERRY ENROLLMENT CASES.
243
CHOCTAW AND CHICKASAW ENROLLMENT CASES.
Numerous inquiries have been made of 'this office as to the procedure to be
followed by the Commissioner to the Five Civilized Tribes relative to the right
to enrollment of persons as citizens of the Choctaw or Chickasaw Nation under
the opinions of the Assistant Attorney-General for the Department of the
Interior rendered November 11, 1905, in the matter of the application for the
transfer of the names of Joe and Dillard Perry from the roll of Chickasaw
freedmen to the roll of citizens by blood of the Chickasaw Nation ; December 8,
1905, in the Choctaw enrollment case of Loula West et al., and December 8,
1905, in the Choctaw enrollment case of Mary Elizabeth Martin.
The attorneys for the Choctaw and Chickasaw nations have insisted that no
hearings be had or procedure of any character be taken by the Commissioner
under the opinions above referred to without proper notice to them of the
institution of such proceedings and an opportunity to be present to cross-examine
applicants and witnesses in the event that a hearing is had in such cases before
the Commissioner to the Five Civilized Tribes.
For the convenience of this office, the Department, and applicants who may
claim to be benefited by the opinions above referred to, the following procedure
lias this day been adopted by the Commissioner :
Any person claiming a right to be enrolled as a citizen of either the Choctaw
or Chickasaw Nation by reason of any of the above-named opinions of the
Assistant Attorney-General will be required to, first, file with the Commissioner
to the Five Civilized Tribes a written petition, signed and sworn to by the
petitioner and containing a particular statement of the grounds upon which the
petitioner's claim is based.
Said petition must state facts sufficient, if true, to show that the petitioner is
entitled to be enrolled as a citizen of the Choctaw or Chickasaw Nation under
one or more of the opinions above referred to, and must also show that a copy
cf said petition has been served on Mansfield, McMurray & Cornish, South
McAlester, Ind. T., attorneys for the Choctaw and Chickasaw nations, who will
be allowed fifteen days from the date of service thereof in which to file with
the Commissioner any answer thereto which they may desire to make, which
answer must show service on the petitioner or his attorney.
After the expiration of said fifteen days the Commissioner will fully con
sider the petition, and if, in his opinion, it does not state sufficient reasons to
justify granting a hearing in the case, said petition will be denied and for
warded to the Department for review, with an order of the Commissioner,
stating his reasons for denying the same.
If, in his opinion, the reasons stated in the petition are sufficient, the Com
missioner will set a date for a hearing and notify the petitioner, his attorney
of record, and Mansfield, McMurray & Cornish, the attorneys for the Choctaw
and Chickasaw nations, thereof. At said hearing the petitioner will be per
mitted to introduce such testimony or other evidence as he desires in support
of the allegations set forth in his petition. The attorneys for the Choctaw and
Chickasaw nations will also be permitted to introduce testimony and evidence
in rebuttal.
The testimony at the hearing will be confined to the allegations in the petition.
The case will be closed immediately after the introduction of testimony on the
date set for the hearing, and as soon thereafter as practicable the Commis
sioner will render a decision upon the rights of the petitioner to be enrolled
as a citizen of the Choctaw or Chickasaw Nation.
245
246 LAWS AFFECTING THE FIVE CIVILIZED TRIBES.
Said decision, together with the record in- the case, will then be transmitted
to the Secretary of the Interior for review.
In such cases where the decision of the Commissioner is favorable to the peti
tioners and the decision is affirmed by the Secretary of the Interior, the names
of the petitioners will then be placed upon a schedule of citizens of the Choctaw
or Chickasaw Nation, which schedule must first be approved by the Secretary of
the Interior before the petitioners are entitled to select and receive an allotment.
In cases of petitioners who do not appear from the records of this office to have
formally applied for enrollment to the Commission to the Five Civilized Tribes
as citizens of the Choctaw or Chickasaw Nation, within the time prescribed by
law, the Commissioner will require conclusive evidence to the effect that applica
tion was made or attempted to be made within the time specified for that pur
pose.
The proceedings herein set forth are without reference to any action hereto
fore taken by the Commission to the Five Civilized Tribes, the United States
court, or the Choctaw and Chickasaw citizenship court upon the rights of the
petitioners to be enrolled as citizens of the Choctaw or Chickasaw Nation.
In order that the cases of persons claiming under the opinions of the Assistant
Attorney-General in the cases hereinbefore referred to may be disposed of as
soon as possible, it is earnestly desired that all petitions be submitted and filed
at the earliest practicable date.
TAMS BIXBY, Commissioner.
MUSCOGEE, IND. T., January 2, 1906.
PART VIII.
REGULATIONS GOVERNING THE UNRESTRICTED ALIENATION
OF LANDS FOR TOWN-SITE PURPOSES IN INDIAN TER
RITORY, PRESCRIBED BY THE SECRETARY
OF THE INTERIOR.
247
REGULATIONS GOVERNING UNRESTRICTED ALIENATION OF LANDS
FOR TOWN-SITE PURPOSES IN INDIAN TERRITORY.
REGULATIONS.
COMMISSION TO THE FIVE CIVILIZED TRIBES,
Muscogcc, Ind. T., February 10, 1904.
The following rules and regulations governing applications for the unre
stricted alienation of lands for town-site purposes in the Indian Territory, ap
proved by the Secretary of the Interior February 6, 1904, are hereby promul
gated for the information and guidance of all concerned.
TAMS BIXBY, Chairman.
A provision of the act of Congress approved March 3, 1903 (32 Stat., 982),
reads as follows :
To pay all expenses incident to the survey, platting, and appraisement of town sites
in the Choctaw, Chickasaw, Creek, and Chei-okee nations, Indian Territory, as required
by sections fifteen and twenty-nine of an act entitled "An act for the protection of the
people of the Indian Territory, and for other purposes," approved June twenty-eighth,
eighteen hundred and ninety-eight, and all acts amendatory thereof or supplemental
thereto, twenty-five thousand dollars : Provided, That the money hereby appropriated
shall be applied only to the expenses incident to the survey, platting, and appraisement
of town sites heretofore set aside and reserved from allotment : And provided further,
That nothing herein contained shall prevent the survey and platting, at their own ex
pense, of town sites by private parties where stations are located along the lines of rail
roads, nor the unrestricted alienation of lands for such purposes, when recommended by
the Commission to the Five Civilized Tribes and approved by the Secretary of the
Interior.
Referring to the saving clause which appears above in italics, the First
Assistant Attorney-General for the Interior Department, in an opinion approved
by the Secretary of the Interior June 12, 1903, uses the following language:
It is evident Congress intended this provision to have some effect, and under the
familiar rule of construction that the form of legislation may be disregarded, if that be
necessary to effect the evident purpose of the legislation, this provision should be con
sidered as an affirmative enactment, and construed as if it read : "Authority is hereby
granted for the survey and platting, at their own expense, of town sites by private
parties where stations are located along the lines of railroads, and for the unrestricted
alienation of lands for such purposes, when recommended by the Commission to the Five
Civilized Tribes and approved by the Secretary of the Interior."
The following regulations are hereby prescribed for the purpose of carrying
into effect the provision of law above quoted :
SECTION 1. Members of the Creek, Choctaw, Chickasaw, or Cherokee nations desiring
to alienate lauds under the foregoing provision of law may apply to the Commission to
the Five Civilized Tribes at Muscogee, Indian Territory, by petition, in duplicate, which
petition shall contain the following facts :
a. A description of the land which it is sought to alienate.
&. Whether the land sought to be alienated is needed for town-site purposes.
c. The age, sex, and citizenship of the owner of the land.
d. The character and value of the improvements located upon the lands described.
e. Whether the homestead of the allottee is involved.
f. Whether the land described is located at a railway station, and the name thereof,
fir. Why it will be for the best interest of the owner to sell.
h. Whether the allottee's title to the land has been perfected by the issuance of
patent.
i. Whether the lands to be alienated are to be sold by the alienor from time to time
in lots or blocks or by the acre in one tract ; if the lands sought to be alienated are
to be immediately sold in one tract, the consideration agreed upon shall be stated, and
if in lots and blocks the business experience of the alienor must be shown.
j. The amount, if any, which has already been received by the owner of the land
for occupancy rights shall be shown.
249
250 LAWS AFFECTING THE FIVE CIVILIZED TEIBES.
k. When the land to be alienated is located in the Choctaw, Chickasaw, or Cherokee
nation, it must be shown that nine months have elapsed since the applicant made filing
upon said land and that no contest has been instituted adverse to the interests of said
applicant.
The petition shall be signed by all the persons, or their legal representatives, having
any interest in the land.
SEC. 2. For the purpose of securing all necessary information upon which to base a
recommendation the Commission to the Five Civilized Tribes may set a date for the
parties in interest to appear and give such information under oath as may be required
to substantiate the statements set forth in the petition. Witnesses may be introduced
to show the value of the land which it is sought to alienate, the necessity for its use
for town-site purposes, the business qualifications of the owner of the land, and such
other information as may be required by the Commission in the premises.
SEC. 3. Where lands are already occupied for town-site purposes the purchaser, if an
acreage sale is contemplated, or the alienor, if the property is to be sold in lots and
blocks, shall be required to evidence his moral and financial responsibility and disclose
the plan contemplated by him for the disposition of claims to occupancy rights.
SEC. 4. Upon the approval of the unrestricted alienation of lands under these regula
tions, if the lands sought to be alienated are immediately transferred in one or more
tracts, the deed of conveyance shall be made and executed in the same manner as other
conveyances of real estate are required to be executed under the laws of the United
States now in force in Indian Territory.
SEC. 5. If the lands sought to be alienated are immediately transferred in one tract, the
consideration shall be paid to the grantor by the grantee in the presence of the chairman
or the Commissioner in charge of the Commission to the Five Civilized Tribes, and the
transfer witnessed by him.
SEC. 6. When the unrestricted alienation petitioned for is approved by the Secretary of
the Interior, the authority therefor will be issued in duplicate, one of which letters shall
be furnished the grantor for record purposes and the other retained in the office of the
Commission to the Five Civilized Tribes.
SEC. 7. The Commission shall, in submitting its recommendations to the Secretary of
the Interior, report fully as to the accuracy of the statements contained in the petition ;
shall report the character of the land as shown by the Commission's classification records
and the appraised value thereof, and indicate whether the consideration is a fair and
reasonable one. The Commission shall report whether the plan contemplated for the pro
tection of those claiming occupancy rights is considered reasonable and sufficient, and
whether the purchaser or the alienor, as the case may be, may be relied upon to fulfill
such plan. The Commission will forward with its report the original petition and a
transcript of, the testimony taken in connection with the application. Accompanying the
Commission's report will be submitted a plat showing the location of the lands sought to
be alienated as regards the lines of Government survey, and if the lands sought to be
alienated are in the nature of an addition to a town already established, the acreage
already embodied in such town site shall be stated, and the approximate present popula
tion thereon shall be given.
E, A, HITCHCOCK, Secretary.
PART IX
MAPS.
251
132131
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