t::~mtr.i'.. r 77 CORNELL UNIVERSITY LIBRARY DATE DUE /, -^-^ g^uifiu — * 1 GAYLORD PRINTEDINU.S.A. E 77.U58F5ri9"l4"*'"' ""'"' ^"mSliiiilSiiiiteiite c'vilrzed tribes. 3 1924 028 726 663 Cornell University Library The original of this bool< is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924028726663 pi 3.2.a INUOLLMENT IN THE FIVE CIVILIZED TRIBES HEARINGS BEFORE THE SUBCOMMITTEE OF THE COMMITTEE ON INDIAN AFFAIRS HOUSE OF REPRESENTATIVES ON THE subject" OF ENROLLMENT IN THE. CIVILIZED TRIBES HAVING UNDER CONSIDERATION THE FOLLOWING BILLS: 3389, 3390, 6537, 7926, 7974, 8007, 10066, 10140, 12586 y '^ ^ -^^^^X^^PRESENTED TO Ci^,.^Xl^ HARTWiCK COLLEG / ^'f 1 -^ ONEONTA, N. Y. BY _ -:/ 5^ p. KINNEY SUBCOMMITTEE Hon. CHARLES D. CARTER, Oklahoma, Chairman Hon. J. D. POST, Ohio Hon. P. P. CAMPBELL, Kansas Hon. p. p. HILL, Illinois Hon. C. B. MILLER, Minnesota WASHINGTON GOVERNMENT PRINTING OFPIOB 1915 I S £ 77 X ^^ PRESENTED TO -~ Hartwick college ONEONTA. N. Y. . [T. R KINNEY CONTENTS. Page. Statement of J. E. Amold 96 Statement of Hon. J. B. Aswell 159 Statement of Webster Ballinger 202, 235 'Statement of Reford Bond 653 Statement of H. J. Oantwell 5,284 Statement of Luke W. Conerly 381 Statement of Hon. P. T. Harrison 724 Statement of George J. Humphreys 342 Statement of P. J. Hurley 480, 589 Statement of Harry Peyton 477 Statement of Hon. W. N. Redwine , 273 Statement of William E. Richardson 24 Statement of T. B. Sullivan 159, 169 Statement of Hon. Jolm T. Watkins 284 Statement of William W. Wright 717 Supplemental agreement 492 Treaty of 1830 ■ 481 Inspector McLaughlin^ report Appendix. ENROLLMENT IN THE FIYE CIVILIZED TRIBES. Subcommittee or the Committee on Indian Atfaiks, House op Representatives, Wednesday^ April 1, 19H. The subcommittee appointed to investigate enrollment matters in the Five Civilized Tribes met at 10.30 o'clock a. m., Hon. Charles D. Carter (chairman) presiding. Mr. Harrison. Mr. Chairman, as I understand it, this subcom- mittee was appointed by the full committee to consider all the bills connected with the reopening of the rolls. Mr. Carter. To consider all of the bills relating to that matter that have been referred to the Committee on Indian Affairs. Mr. Harrison. Mr. Chairman, I think that, in view of the fact that this bill I introduced in the Sixty-second Congress was consid- ered by the subcommittee and the hearing^ thereon printed, it should appear first. If I am not asking too much, I would like to have that done. Mr. Carter. If there is no objection, that will be done. Mr. Harrison. I am referring to the amended bill I introduced in January. Mr. Carter. You can furnish a copy of the bill to the stenographer. (The bills under consideration by the subcommittee are House bills 12586, 3389, 3390, 6537, T926, 7974, 8007, 10066, and 10140, Sixty- third Congress.) Who is the first man to be heard this morning? Mr. Harrison. In the consideration of this matter Mr. Cantwell made a very exhaustive argument before the committee in the Sixty- second Congress. He is present this morning, and I think he is about as well posted on this subject as any man I know. I understand that he is to leave for Colorado to-night, and I would be glad if the com- mittee would hear him first. Mr. Cari'er. Do you want him heard now ? Mr. Harrison! Yes, sir. Mr. Carter. Mr. Cantwell, we will be glad to hear you now. STATEMEFT OF MR. HARRY J. CANTWELL, OF THE FIRM OF CREWS & CANTWELL, ATTORISTEYS FOR THE MISSISSIPPI CHOC- TAW CLAIMAITTS. Mr. Cantwell. Mr. Chairman and gentlemen of the committee, before the hearing at the last Congress Mr. Campbell (interposing). Mr. Chairman, I suggest that each speaker give his name and address before proceeding. b ENROLLMENT 'IN THE FIVE CIVILIZED TRIBES. Mr. Carter. State your full name and address, Mr. CantweK, and also state whom you represent. Mr. Cantwell. My name is Harry J. Cantwell, of the firm of Crews & Cantwell, of St. Louis, Mo. I represent approximately f ,000 claimants as Mississippi Choctaws, with all of whom we have indi- vidual contracts. Mr. Chairman and gentlemen of the committee, this matter was subjected to quite an exhaustive investigation by the last Congress. It involves various features of the enrollment questions which have been investigated by numerous Senate and House committees for years. The testimony, discussion, statements, and arguments on the subject would occupy probably 20,000 pages if all of them were put together. The hearings at the last Congress developed the fact that there were three or four vital questions that this committee must decide. They are questions of lav/ as much as anything else, you might say, and they must be decided before there can be any intelli- gent settlement of this question. Mr. Post. Mr. Harrison, what is the number of your bill ? Mr. Harrison. It is H. R. 12586. . Mr. Cantwell. Mr. Carter is thoroughly familiar with this ques- tion, because he comes from the Choctaw country. Mr. Miller has been a member of this committee for many years; he has been through the Choctaw country, and was a member of the special com- mittee which reported upon a bill almost identical with this Harrison bill, now under consideration, at the last Congress. Mr. Campbell has visited the Oklahoma country in making numerous investigations and is familiar with many of the actual conditions in the Oklahoma country. Mr. Post and Mr. Hayden, I believe, have no personal knowledge of this subject, and for their information I will for 10 or 15 minutes review the ground of the claims for which we are con- tending. I presented this question fully at the sessions of the com- mittee at the last Congress, and I hope those hearings will be repub- lished. The treaty of 1830 provided for the allotment of reservations to certain citizens of the Choctaw Tribe who desired to remain in Mis- sissippi when the main body of that tribe went to their lands in the West. Our contention in a nutshell is that those persons who were entitled to receive reservations in Mississippi under section 14 of the treaty of 1830 retained, by the express language of that treaty, the full privileges of citizens of the Choctaw Tribe, and, as such, were entitled to all of the benefits of citizens thereafter and to the prop- erty rights of citizens thereafter, without any conditions whatever, except that the last clause of that section says : " But if they shall ever remove, they shall not be entitled to the Choctaw annuitJ^" Mr. Post. Has that treaty been published in these hearings ? Mr. Cantwell. Yes, sir. Mr. Post. Can you cite me to the page where it is printed ? Mr. Cantwell. No, sir; I can not on the instant. Mr. Harrison. It is printed on page 5. Mr. Cantwell. This clause, " If they shall ever remove, they shall not be entitled to the Choctaw annuity," has been the subject of much fine technical discussion, but if you gentlemen will consider what the conditions were at that time, I believe you will agree with ENKOLLMENX IN THE FIVE CIVILIZED TKIBES. 7 me that that clause was a very simple statement, intended to meet a certain physical condition. It had absolutely no relation whatever to the question of whether they did or did not go to the Indian Territory; for, mark you, if it were then intended to shut out any of those who removed to the Indian Territory, it would have shut out from sharing in the annuity many thousands who subsequently went to the Indian Territory who have always received it. This provision was made to fit certain tribal contingencies: Annuities are usually payable at the tribal agency, those reservations were identified, and those people lived upon the reservations ; if they were on those reservations, the Indian agents could find them and could pay them their share of the annui- ties. If, however, they moved from the identified reservation, and were scattered over the State of Mississippi, there would be nc means of finding them to pay them that annuity. That is all that that clause was ever intended to cover. As to those people who re- mained back in Mississippi, there was no idea at that date that they should remove to the Indian Territory, because, so far as those people who desired to remain in Mississippi were concerned, removal to the West was their main objection to the treaty. They wanted to stay in Mississippi. They did not at that time have in their minds the contingency of going to the Indian Territory at all. Now, let us make our contention clear at this point, so that it can not be mis- understood. So far as I am concerned, I admit that as to anybody else who stayed outside of that tribe and did not go to the Indian Territory with the tribe, except those whose rights are secured by this treaty, there are no tribal rights, if they have not been recognized by the tribe Mr. Hurley (interposing). Mr. Chairman Mr. Cantwell (interposing). I do not want to be interrupted, Mr. Chairman. I have got to leave to-night, and must finish my statement before 12 o'clock. Mr. Carter. Mr. Hurley, I suggest that you make a note of what you wish to say, and not interrupt Mr. Cantwell at this time. Mr. Hurley. My only purpose Mr. Cantwell (interposing) . Your only purpose was to interrupt me. I do not wish to be interrupted at this time. I have a long argument to make, and then you can make your own argument. Please do not interrupt me until I finish my statement. Mr. Carter. I think we had better let Mr. Cantwell proceed with his argument, and you can make a note of such questions as you desire to ask. Mr. Hurley. I want to call attention to the fact that under the procedure last year, after they got what they desired in the record, the committee closed the hearings before we got through. I would like to have a definite assurance that we settle the issues as we go along Mr. Cantwell (interposing). That is impossible. Mr. Hurley. It is not impossible Mr. Carter. Suppose you reserve your statement, Mr. Hiirley, until Mr. Cantwell concludes. We will give all of you an oppor- tunity to be heard. When Mr. Cantwell has finished his statement, he can then answer questions. 8 ENROLLMENT IN THE FIVE CIVILIZED TEIBES. Mr. MiLLEE. I would suggest that the gentleman be allowed an opportunity to present his ideas in his own way. I think that is only fair to him, and if he does not avail himself of the opportunity to answer questions it might be to his disadvantage, because the op- posing parties will have an opportunity to present their side of these questions without any answer thereto. Mr. Carter. I think we had better allow Mr. Cantwell to proceed. Mr. Cantwell. I desire to say that as to those whose rights were preserved by section 14 of the treaty of 1830, my opinion, f rora an examination of this matter and from a reading of certain decisions which I will quote hereafter, is that those people and their descend- ants have rights as citizens of the Choctaw Nation totally irrespective of whether or not the tribe recognized them or whether or not they went to the Indian Territory. They were in exactly the same con- dition, so far as that matter went, as the persons now on the rolls of the Choctaw and Chickasaw Tribes in Oklahoma are in to-day. Their property rights — that is, the rights of those now on the roll — in the remaining property of the tribe are secure without any residence in Oklahoma. They can come and go as they please absolutely. That right to share in that community property is a right that was intend- ed to be secured to these people in Mississippi to encourage them in civilization, and to encourage the breaking up of the tribal relation. Just in that connection, I want at this point to refer the committee to an illuminating decision by Judge Van Devanter, then a circuit judge. I refer to the decision of the circuit court of appeals in the case of Oakes v. The United States, in the One hundred and seventy- second Federal Reporter, page 305. That is a case which involved the right of absent Chippewas, who originally came from Mississippi, to share in their tribal funds, the clause in the treaty granting reserva- tions to those who became citizens of the State being : Any such Indian shall be entitled to his distributive share of all annuities, tribal funds, lands, and other property, the same as though he had maintained his tribal relations. There is a review of certain other legislation in that opinion which is very illuminating. Without going further into that legal question, I want to continue this statement so that Mr. Post and Mr. Hayden may have some idea of these conditions. We contend that this right to share in the tribal property, independent of the removal of these people to Oklahoma, was universally recognized by the tribe up to the very instant that the United States took hold of that tribal property and undertook to dis- tribute it. We insist that there never was any time limit put upon the Mississippi Choctaws by the Choctaw Tribe with respect to their right of reentry into the tribe. I want to make clear this question. Here is a community holding property in common ; it is a community where all the lands are held in common, and, manifestly, no man can enpoy his rights in that community property without going there and occupying it— so long as it is held in common. That was the only way in which he could enjoy his then right of common occupancy in it. There was, therefore, a physical reason why they could not enjoy those rights without going to the Indian Territory. They could not enjoy other rights until it came to the actual distribution of money or lands in severalty. Now, there were certain distributions of money ESTKOLLMENT IN THE FIVE CIVILIZED TBIBES. 9 made in which these people in Mississippi did not participate because they did not go there and claim to be identified in the distribution ; but there never was any denial of the right of those people to claim under the fourteenth article of the treaty. There never was any con- dition inserted that they must remove to the Indian Territory until the treaty of 1866 — to which the Mississippi Choctaws were not parties. The treaty of 1866, made immediately after the war, con- templated the breaking up of the tribal relation — something that did not actually occur until 40 years afterwards. That treaty of 1866 contemplated an allotment of the lands, and it provided that those absent Mississippi Choctaws, after certain notices to be published in the newspapers, which has never yet been done, might identify them- selves at the land register's office, select their lands, and have five years thereafter — that is, after they had made their selections — to occupy that land. That is the provision of the treaty of 1866. Was there any denial at that time of the right of the ^Mississippi Choctaws to claim finder the fourteenth article of the treaty? Was not that treaty of 1866 an absolute confirmance of that right, with only the provision that they should within five years after their selection of the land occupy it as a homestead ? That treaty of 1866 is important as emphasizing the recognition by the Choctaws west of that right. It is important, because the provisions of the treaty of 1866 and the recognition therein made of the rights of the Mississippi Choc- taws ha^■e never been extended to them by the United States. This right of the Mississippi Choctaws to citizenship was constantly recog- nized by the tribe by the adoption into the tribe of those of them who came into the tribe. I am overlooking the fact that two of the mem- bers of this committee are not entirely familiar with these facts, and I want to say to them that a great many of these Mississippi Choc- taws who were granted reservations under the treaty of 1830 never received their lands, as provided for in the treaty. The lands they selected were entered upon by others as public lands, and these Indians were driven off the reservations which they occupied in Mississijjpi under the fourteenth article of the treaty. Mr. Carter (interposing). You say they were driven off of those lands? Who drove them off? Mr. Cantwell. The men who entered the lands as public lands actually drove off these Mississippi Choctaws. They drove them away from their homes by force. Mr. Carter. Do you mean white citizens of Mississippi? Mr. Cantwell. White citizens of Mississippi. Mr. Post. Where did they go? Mr. Cantwell. They were dispersed. Some of them went to the Indian Territory, and many of them remained in Mississippi. As late as 1850 there were estimated to be about 4,000 of their descend- ants still in Mississippi. Mr. Post. Those that went to the Indian Territory enrolled them- selves in the Choctaw and Chickasaw Nation ? Mr. Cantwell. Yes, sir. Those who subsequently went to the Indian Territory were Subsequently enrolled, except some of them, who were denied after the United States took charge. Many of them were accepted, however, and enrolled. In 18-55 the Choctaw Nation West undertook to make a claim against the United States for cer- tain infractions of that treaty, and for the violation of the rights 10 ENROLLMENT IN THE FIVE CIVILIZED TRIBES. which had been given to these individuals in Mississippi. Here I call attention that thereby is an express recognition of the rights of those individuals as citizens of the tribe, because if they had not been citizens of the tribe, the Choctaw Nation West would not have assumed, as they did in 1855, to make the individual damage done each and all of the Mississippi Choctaws the subject of the tribe's grievance. The claim against the United States for the infractions of the treaty was submitted finally to the Senate of the United States as a board of arbitration, and the award that was made in settlement of all of the then claims, including all of these individual claims, was arrived at in this way : The Senate of the United States sa id, " We will, Avithout any regard to the legal features, arrive at a settlement of this matter in this way : We will take all the lands in Mississippi ceded by the tribe to the United States by the cession of 1830, and we will pay the Choctaw Nation the full amount which we realized from the sale of those lands at the low price at which v/e sold, less the expenses, and we shall pay that amount in settlement" Now, mark you, in arriving at that settlement, they included the acreage of every one of these claimants under the fourteenth article who had remained in Mississippi and who had not gotten his land. Mr. Post. What judgment was rendered? Mr. Cantwell. There was no judgment rendered at that time. This was an award by the United States Senate. There was an appropriation rAade for but a small part of that award when the Civil War came on. In 1885 the Choctaw Nation was, by act of Congress, permitted to sue the United States in the Court of Claims for damages arising from violations of this treaty of 1830, and enumerated in that suit in the Court of Claims as part of the claims made by the Choctav/ Nation and in the record which went up to the Supreme Co\irt of the United States upon appeal are claims for all of those wrongs done the individuals. Set out in four printed volumes of that record are the reservations of land which these people had attempted to make, and from which they were driven; and the Choctaw Nation, West, set up a claim for the total value of those lands that those individuals had been deprived of at $5 per acre, in- cluding improvements. The Court of Claims rendered a judgment in that case, which was appealed to the Supreme Court of the United States — the delegation of power by Congress in the act, being to try this matter in the Court of Claims with an appeal to the Supreme Court of the United States. The Supreme Court of the United States in its decree went back to the original Senate award as a final, accepted settlement of all the controversy and awarded the Choctaw Nation the full amount of the Senate award of 1855 with Interest. Mr. Post. What did it amount to ? Mr. Cantwell. Mr. McMurray, in a statement before a Senate committee last session, this Congress, made the statement that the total amount received from claims arising on account of the old Mississippi matters was approximately $8,000,000, but the judgment in this particular case of Choctaw Nation « United States was ap- proximately $3,000,000. Mr. Post. I do not want to interrupt the course of your argument, but all this is new to me. Let me state your claim or contention, and see if I have it right: You claim that these Choctaws east of the ENROLLMENT IN THE FIVE CIVILIZED TEIBES. 11 1 !f^!f -5^^ River, who, under this treaty, were to have a section of land, did not receive that land, and that they are now entitled to an ^"^"5" / equivalent to the value of that land ; that afterwards they ffued the United States Government— that is, the tribe in the Indian lerritory sued the United States Government, and procured a judg- ment for about $8,000,000; that the Government either paid that amount to the Choctaws or holds it in trust for them, and what you want is that the Mississippi Choctaws be enrolled as members of the Choctaw and Chickasaw Nation. Mr. Carter. I think, Mr. Cantwell, that you have not made quite clear to Mr. Post the failure of the Federal Government to comply with the obligations of article 14 of the treaty. Mr. Campbell. I think I can make that clear: What he wants is a statement of what you want done now for these Mississippi Choctaws. Mr. Cantwell. Departing, then, from the sequence of my state- ment for a minute, Mr. Post, there are between twenty-five and thirty thousand persons on the Choctaw and Chickasaw rolls to-day. Each person on that roll has already received 320 acres of land. Each man, woman, and child now on the rolls has received 320 acres of land. Now, the value of that land, because of the development that has taken place down there, is enormous and beyond the dreams of people who are not familiar with it. In addition to that, there yet remains, belonging to that tribe, undistributed coal and asphalt lands of variously estimated value, but it has never been estimated at less than $20,000,000 in value, and it has been estimated as high as $300,000,000 by some experts. Mr. Miller. And by some at $4,000,000,000. Mr. Post. I understand that. Mr. Cantwell. In addition to that, the surplus lands, after each man, woman, and child now on the rolls had been allotted 320 acres apiece, have, for the most part, been sold — the sales realizing, in the amounts paid in and the amounts to be paid in, according to the latest figures obtainable, something like $17,000,000. That is the esti- mated amount already realized by sale of the surplus lands. This bill undertakes to enroll those absent Mississippi Choctaws and pay them, out of the remaining funds of that tribe, a sum to partly equal- ize them with what citizens now upon the rolls have received. That is the object of it. ]NTr. Post. The object is to enroll them and then equalize them ? Mr. Cantwell. Yes, sir. Of course, you can not disturb the titles to the lands that have been allotted or sold, but you can give them the equivalent of that allotment of 320 acres at its then appraisement. That would not mean at its present value, but at its nominal or ap- praised value at time allotments were made. That appraisement was arbitrary and relative, and fixed a merely nominal price. Mr. Campbell. You would do that out of the money that remains undistributed ? Mr. CANnvELL. Yes, sir; out of the money that remains undis- tributed. I wns discussing the matter of that judgment. Now, there was not one dollar of the money realized from that judgment paid to anybody in Mississippi. All of it was distributed as tribal money. Whatever' amount was distributed was distributed in Indian Terri- tory. The record of the amount actually distributed is very hard to 12 ENROLLMENT IN THE FIVE CIVILIZED TEIBES. find. It is not among the official documents in the Congressional Library. Mr. McMurray made the statement Mr. Hurley (interposing) . It is in the Indian Office. Mr. Cantwell. Mr. McMurray made a statement the other day before a Senate committee, contrasting his claims for fees with cer- tain other transactions had with the Choctaw and Chicasaw Tribes, in which he said that only $2,000,000 of that total amount had ever reached the members of the tribe. Mr, Balungee. The judgment was for less than $3,000,000. Mr. Cantwell. The judgment with interest? The record in the Supreme Court does not indicate the total amount of that judgment. Mr. Htteley. The judgment was for $8,078,374.04. More than $5,097,367.50 was deducted from that amount for amounts paid b;^ the United States theretofore to the Mississippi Choctaws in the adjust- ment of their rights and for other expenses in the surveying work, etc., leaving about $2,981,247.30 to be paid as the net proceeds from the Mississippi lands. Mr. Cantwell. I object to being interrupted any further. I want to correct one thing. I say that not one cent of that judgment was- ever paid to the Mississippi Choctaws as Mississippi Choctaws. Whatever amount' may have been paid was paid in the Territory. Mr. Hurley. I can dispute that statement with the records. Mr. Cantwell. Very well. Whether it was or was not, if any amount was paid to any of these Mississippi Choctaws, then by that act there was an express recognition of the right to share without residence in the tribe. Mr. Hurley. They were paid in the tribe West, and they are there to-day. Mr. Cantwell. Where are they? Mr. Hurley. There was deducted the amount paid to those who re- mained in Mississippi under the fourteenth article and afterwards removed to the Indian Territory. The muster rolls' show that 3,400 scripees moved to the Indian Territory up to and including the year 1852 and were paid there. Mr. Cantwell. That is exactly what I said. The distribution was made to the tribe out West without regard to any of them left down in Mississippi, although the subject matter of the judgrhent was based upon the claims of those who were in Mississippi, and any of them who were in Mississippi were entitled to a share of it. The fact that the tribe made the claim of all of them the basis for the claim against the United States ought to be and is a recognition of the rights of these Mississippi Choctaws as citizens of the tribe. Mr. Bond. Will you please give me a moment? Mr. Cantwell. I will give you 10 minutes when I get through. I have only a short time and I have to leave for Colorado to-night. These matters must be presented consecutively, gentlemen, and there are too many complications for me to be diverted. Mr. Bond. I was going to ask you a question that might redound to your benefit, if you are not going to remain to answer the argu- ment of counsel for the nations. Mr. Cantwell. If you will give it to me at the right time, I wiE accept it with pleasure. The national council of the Choctaw Tribe in 1889 recognized the rights of these absent people without fixing any time within which ENROLLMENT IN THE FIVE CIVILIZED TRIBES. 13 they must claim the share in the CQimnunity rights. So long as there was any tribal government, the right of the Mississippi Choctaws to share in the community property was never denied. Here let me emphasize the fact that to enjoy the community property he must go to the place where it was being enjoyed ; he must go to the point where -the land could be occupied by him, because it was a common right of occupancy to 'each member. When the United States stepped in and undertook to individualize these lands, then the right of community enjoyment ceased. The first act declaring the intention by the United States to individualize these lands and abolish the tribal relation was in 1893. Further legislation was had in 1896, when the Dawes Commission was appointed. There were no direc- tions given to the t)awes Commission when it was directed to enumer- ate the members of the tribe as to the rights of these absent Missis- sippi Choetaws. The act of 1898 contains certain provisions for their identification only, and the act of 1897 had provided for an investi- gation by the commission to determine their rights. On the gen- eral question of enrollment this clause was inserted in the act of 1898 : No person shall be enrolled who has not heretofore removed to and in good faith settled in the nation to which he claims citizenship : Provided, however, That nothing contained in this act shall be 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. That act of 1898 did not require the removal of Mississippi Choc- taws. They were expressly exempted from the clause " No person shall be enrolled who has not theretofore removed to and in good faith settled in the nation to which he claims citizenship," for that clause referred to those persons who did not claim under the four- teenth article of the treaty of 1830, but who generally claimed citizen- ship rights in the Choctaw Nation. This act of 1898 expressly de- clares the rights of the Mississippi Choctaws without imposing any condition upon them of removal to the Indian Territory. Further, the act provided : Said commission shall have authority to determine the identity of Choctaw Indians claiming rights in the Choctaw lands under article 14 of the treaty between the United States and the Choctaw Nation, September 27, 1830, and make report to the Secretary of the Interior. Now, what happened? There is no provision in the act of 1898 for an allotment of land to the Mississippi Choctaws. What were the conditions in the Territory at that time, so far as the Mississippi Choctaws are concerned? There were hundreds of white men and hundreds of claimants, I have no doubt, with a strain of Indian blood of every tribe who were seeking admittance to the Choctaw rolls. These Mississippi Choctaws could not go to the Territory for proper identification by the tribe at that time, because the Tribal Council had been practically abolished, and there was no Choctaw authority which could lawfully recognize them at that time. As Mr. McMurray stated the last session in the hearing before the_ Senate committee, there was no government in the Choctaw and Chickasaw Nations txcept the Government of the governors of the Choctaw and Chickasaw Nations, and the governors of the Choctaw and Chicka- saw Nations were under the influence of Mr. McMurray in 1899, and from that hour on during all this period of enrollment. Mr. Campbell. May I interrupt you a momert? 14 ENEOLLMENT IN THE FIVE ,CIVILIZED TRIBES. Mr. Cantwell. Certainly. Mr. Campbell. What is the hearing before the Senate committee; what is the question? Mr. Cantwell. There was quite an investigation of McMurray contracts and everything else interjected into the hearing on the appropriation bill. Mr. Campbell. How long ago? Mr. Balltnger. Last June. Mr. Campbell. Is the hearing going on ? Mr. Cantwell. This was a hearing during the last session of this Congress. These Mississippi Choctaws had no means whatever of being identified. If they went into the tribe to be identified, there was no tribal authority which then had power, to recognize them, because the Dawes Commission was exercising the power of enrollment at that time, and many of these Mississippi Choctaws who did attempt to go in were treated as intruders. Mr. McMurray invoked the permit laws against every one who came in there. Mr. Carter. I want to ask you a few questions. Was there ever a Mississippi Choctaw removed? Mr. Cantwell. There were a number of persons who claimed to be Mississippi Choctaws who were removed. Mr. Carter. Can you give us the names? Mr. Cantwell. The reports made by Mr. McMurray contain statements that Mr. McMurray succeeded in removing a number of people as intruders, and he said they were claiming as Mississippi Choctaws. Mr. Carter. Where can we find that report ? Mr. Cantwell. The report of Mr. McMurray is printed in the report of the committee which investigated the McMurray con- tracts. Mr. Carter. Have you it there? Mr. Cantwell. I will give you the citation. I want to say that under those conditions those people had no opportunity to become recognized as citizens of the Choctaw Tribe. They were not at that time considered by the commission as citizens of the tribe and were not on the tribal rolls. Mr. McMurray came to the Interior Department and the Attorney General wrote several opinions in which he declared that not only the Indian police but the military authorities of the United States might exclude from the Choctaw and Chickasaw country any person who was not there by the permit of the tribal authorities, and therefore I say that any Mississippi Choctaws who went into that territory at that time, in order to make any settlement that was necessary to secure his treaty rights, had to submit himself to the tribal authbrity for the purpose of obtaining a permit, when there was no tribal authority to deter- mine his treaty rights and when the question of determining who were citizens at that time was in the Dawes Commission. Mr. Carter. I know something about those conditions, and in order that we may not be misled about it, as you appejir to be, I will say that we had a permit law — $5 per head — which had not been enforced, if my memory serves me aright, and no attempt had been made to enforce it since 1894. We had also a grazing law and a merchant license-tax law which an attempt had been made to en- ENROLLMENT IN THE FIVE CIVILIZED TRIBES. 15 force—one providing for a charge of $1 per head for all cattle that grazed on the public domain, and the other a tax of 1 per cent on all merchandise exposed for sale. My recollection is that the onlv two persons put out of the Choctaw and Chickasaw Nations after 1894 were tor violations of those two things. I remember very dis- tinctly one who was put out— Mr. Bodovitz, who refused to pay a tax— and Mr. Dorsett Carter, a lawyer who refused to pay some k'ind of a tax. Mr. Cantwell. I know of one particular case which Mr. McMur- ray referred to. He referred in his report to the case of one Bounds, and said that he came in with a gang of about 100 laborers and fenced up public lands; and Mr. McMurray stated as a fact that a number of such persons had taken possession of land without any authority, and that he had enforced the rights of the nation and put them off. I am not familiar with the names, because I was not on the ground, but I can give you the citation to Mr. McMurray's report. Mr. Carter. I wish you would do that. Mr. Cantwell. Remember that this act of 1898 recognized the rights of the Mississippi Choctaws without fixing any time within which they might remove or must remove to enjoy these community 'rights about to be individualized. Then the act of 1902 was passed by Congress, drawn by Mr. McMurray. By that act the citizenship court was created and given power to destroy the judgments there- tofore rendered awarding citizenship to 4,000 claimants. By the terms of the law creating the citizenship court it was inevitable that the solemn judgments of the United States circuit courts awarding citizenship in this tribe to 4,000 claimants would be destroyed, and they were destroyed. This act of Congress of 1902, which contained the provision creating this citizenship court, was the most monstrous creation ever known. I do not know whether there is any foundation for McMurray's allegations that these judgments of the United States courts were wrong or not. I say there never was any such proceeding on earth anywhere to create another court which should find certain facts that everyone knew existed and require the new court, upon the mere finding of these facts, to set aside nearly 4,000 solemn judgments of the Fedpral courts. But the act of 1902 went further in iniquity than that. It ap- peared to confer certain rights upon these Mississippi Choctaws, but, gentlemen, it did not confer any rights upon the absent Mississippi Choctaws. It made as a condition that no person should be entitled to make an application for enrollment who had not removed to the Territory prior to June 28, 1898. That is one of the conditions re- quired by this act of 1902 before an application could be made; and people who were really entitled to prove their descent from ancestors who had_ been deprived of land under the treaty of 1830 were shut out by that provision from even making an application because many hod not gone West prior to June, 1808. I do not care if there were then nine or nineteen or twenty-nine thousand in the Oklahoma country claiming as Mississippi Choctaws. Many claimants claimed as Mississippi Choctaws, if they were not on the recognized tribal rolls, because tKe tribe originally came from Mississippi, but I sub- mit that the people who are the descendants of these particular per- sons whose rights were secured by article 14 of the treaty of 1830 never have had an opportunity since the United States undertook 16 ENROLLMENT IN THE FIVE CIVILIZED TBIBES. to take hold of that tribal property and individualize it to make a claim based upon their legal and their treaty rights. There has never been a minute when they could make their claim in the manner to which they are entitled to make it. This act of 1902 prohibited any application unless the claimant had removed to Indian Territory prior to June 28, 1898. What reason was there for inserting that provision " prior to June 28, 1898 " ? What notice was there to the Mississippi Choctaws which required them to go there prior to June 28, 1898 ? Where can any justification for fixing such a date be found ? Absolutely nowhere. There was an additional provision inserted in this act requiring those who claimed under the fourteenth article of the treaty of 1830 to show that they were descended from an an- cestor who had received a patent to land under that article. But a small proportion of those entitled had received patents to these lands. A great many had been driven away from their lands. Mr. Post. How many had received patents? Mr. Cantwell. 1 do not now recall the exact figures, but this is all gone into fully in the briefs filed at former hearing. It was stated at the close of the hearing during the last Congress, and I want to clear that up, that there was a decision called the Jim Gift decision by which the Department of the Interior decided that if the ancestor of a claimant under the treaty of 1830 had been entitled to receive a patent to land, the department would construe that as the equivalent of this provision in the act of 1902 requiring him to be a descendant of an ancestor who had actually received a patent to land. Let us see what the practical effect of this is. How could any man have known in 1902 that the act limiting the rights to apply to those who had descended from an ancestor who had re- ceived a patent to the land would be thus construed, years after? How could any man loiow that the Interior Department would con- strue that statute five years afterwards to mean that if his ancestors had been entitled to receive a patent to the land his application wnuld be received ? In addition, the Jim Gift decision, as I pointed out in the former hearings, was not published until long after the time for filing application under the act of 1902, and it benefited no one except Jim Gift, and did no good to those who refrained from applying because their ancestors had not received patent. There has been considerable discussion at different times about ii-he Jack Amos decision. The Jack Amos decision was rendered by Judge Clayton in 1897 or 1898. Mr. Carter. I think it was in 1899. Mr. Cantwell. It appears in the report of the Commissioner of Indian Affairs for 1898. Mr. Carter. It was taken to the Supreme Court in 1899. Mr. Cantwell. The decision was rendered by Judge Clayton in 1897, and the case was appealed to the Supreme Court of the United States, but the record was never printed in that case, and in the record which went to the Supreme Court of the United States, and in the written transcript, this opinion does not appear. The case was dismissed by the appellants on the motion of W. T. Hutchings, who was in some of the cases for the Cherokee Nation. The Amos case, therefore, never reached the Supreme Court of the IJnited States for adjudication or opinion. ENBOLLMENT IN THE FIVE CIVILIZED TKIBBS. 17 Mr. Carter. It reached the Supreme Court of the United States, but was dismissed upon the application of the plaintiff. Mr. Httrley. The same as the case of Stephens v. the Cherokee Nation. Mr. Cantwell. The Stephens case did not relate to the Jack Amos case in any particular. I have the Stephens case here. I want the gentlemen of the committee, who are all lawyers, to read these cases. I am satisfied an examination will bear me out in this statement that the Supreme Court of the United States never passed upon the Jack Amos case at all. . Mr. Ballinger. They went off on a jurisdictional question ? Mr. Cantwell. On the question of whether the acts of Congress conferring upon the commission the power to determine citizenship cases was constitutional. Mr. Carter. In the Jack Amos case there was no decision ren- dered by the Supreme court of the United States. The record shows it was dismissed on motion of the attorney for the Mississippi Choc- taws, Mr. W. T. Hutchings. Mr. Cantwell. It was dismissed on his motion, but as a matter of fact, Mr. Carter, if you will examine the transcript as it appears there, you will see that there was absolutely nothing in the trans- cript that went up to the Supreme Court of the United States upon which the Supreme Court of the United States could try anything. Mr. Carter. The case was dismissed. Mr. Cantwell. There was no evidence and there was no ruling of the court reserved in the transcript; nothing but the pleadings and decree. Mr. Ballinger. There were a great many cases appealed. Mr. Cantwell. I object to your taking up my time. You are going to have three or four' days, and I must go home to-night. Now, Judge Clayton decides in that case that the Mississippi Choc- taws have these rights under the treaty, but he decides that they must remove to the Indian Territory ; and remember that at the time of this decision, in 1897, there was absolutely no legislation by the United States providing for the identification of or providing for the allotment to Mississippi Choctaws of lands under these treaty rights. Consequently, this decision of Judge Clayton as to the then condition miglxt be an entirely correct conclusion. In other words-^ and Judge Clayton's decision goes to this point — ^that while it is community propertly, manifestly, for physical reasons alone if for none other, there could be no enjoyment of that community property until you go iiito the community. As to what their rights would be when the United States stepped in to provide for allotment to Mis- sissippi Choctaws, that is not treated of in Judge Clayton's decision. The persuasive force of that decision, if it has any, is counterbal- anced by the opinion of Judge Townsend contained in the same volume, in which he says : In all these various trentles, solemnly entered Into, there is not one line or one word to indicate that the Choctiiws and Chickasnws who did not remove to the western country were not Choctaw or Chickasaw citizens and nieniliers of their respective tribes. On the other hand, in the treaty of ISSO between the Choctaws and the United States, it is expressly provided tli.it those who remained should "not lose the privilege of a Choctaw citizen," but if they ever removed " are not to be entitled to any portion of the Choctaw annuity. 64969—15 2 18 ENROLLMENT IN THE FIVE CIVILIZED TBIBES. When it was supposed that the lands would be allotted in severalty under the treaty of 1866, it was expressly provided that notice should be published iu the papers of several States that absent Choctaws and Chickasaws imght come in and obtain the benefits of the allotment; and absentees were to be allowed five years to occupy and commence improvements, and all that was necessary was to satisfy the register of the land office that thit was their intention. The allotment did not take place, but if they had not come in they were only to lose their allotment of land; it did not make them any the less Choctaws or Chickasaws or members of the Choctaw or Chickasaw Tribes. It las been said that they could not be put upon the roll as citizens and members of those tribes unless they lived upon the land within the Choctaw or Chickasaw Nation, I submit that the action of the Choctaw and Chickasaw h'atioiis themselves when making the treaty of 1S6G does not bear out the view; and if they were Choctaws and Chickasaws in 1866, whit has occurred to change their relations to those tribes? I have heard of nothing whatever. It is said the land was held in conmiou, and certainly some of the tenants in conmion in possession could hold the poFsession for all their cotenants in com- mon. The bulk of the nation living in the territory celed and maintaining the tribal government or nation certainly met every requirement of residence and was a compliance in all respects with" the treaty stipulations of living on the Ulud. I shall hold that nonresident Choctaws and Chickasaws who have properly filed their ajJiilication and established their membership of the tribes shall be admitted to the roll as citizens. Now, gentlemen, I submit that the opinion of Judge Townsend is just as good as the opinion of Judge Clayton on that matter. Mr, Carter. What was that case? Mr. Cantwell, That is headed "In re Indian Citizenship Cases." Mr. Hurley. It is an ex parte opinion. It was nrt a case at all. Mr. Cantwell. The court was considering these cases Mr. Hurley. Some judge reversed it '.vtr. Cantwell (interposing). I am talking now about judicial uoinions; if you can cite any reversal of that case; if you can cite any case changing that opinion At. Campbell (interposing). Eeversals are quite the thing nowa- aays. Hir. Cantwell (continuing). Unless it is based upon the act of 1902, or upon subsequent limitations put upon the Mississippi Choc- taws inadvertently by act of Congress. I would like to see it. Now. gentlemen, I want to say that in the opinion of Judge Clayton, the rights of the Cherokees, and the decision of the Supreme Court of the United States as to the absent Cherokees, is cited by him as authority for his opinion in this Jack Amos case. But there is a de- cided distinction between the Cherokee treaty and the treaty with the Choctaws. The treaty of 1835 with the Cherokees contained ab- solutely no provision whatever continuing the rights of citizens in the Cherokee tribe to those who were allotted lands in severalty in the east. Those Cherokees who, under that treaty, were allotted lands in the east outside of the tribe, or who did nc t remain with the tribe east — and there was a separate division east recognized by the United States Government — or who did n( t go into the tribe when the eastern i>nd western tribes reunited, and who did nc t submit to the require- ments of citizenship imposed by tlie Cherokee tribe at that time, have been held to be outside. "Why? Because their tribal rights were not secured by the treaty of 1835. There is not a line in the Cherokee treaty of 1835 which permits the individual to retain his rights in the tribe ether than by tribal afliliation, while this treaty of 1830 ENROLLMENT IN THE FIVE CIVILIZED TEIBES. 19 with the Choctaws expressly reserved that right independent of the tribal environment and because of his becoming an individual citizen. There is a provision in the Cherokee treaty providing for the allotment to certain persons of lands which they might select, but there is no reservation of their rights in the tribe — absolutely none whatever. Consequently, that Cherokee decision might be en- tirely proper, and yet that rule would be very improper if applied to the Mississippi Choctaws. Mr. Carter. If I understand your contention, it is this : That the Cherokee treaty did nrt contain any such language as that contained in the 14th article of the treaty of 1830? Mr. CajvTwell. Yes, sir. Mr. Carter. And they are not parallel cases ? Mr. Cantwell. They are not parallel cases. Mr. Carter. I want to ask you a question, Mr. Cantwell. Have you ever been able to get a copy of that Senate award? I do not mean the matter contained in the court's decision, but the actual award itself. I have never been able to get it. Mr. Cantwell. I think I can get it for you. Mr. Ballinger. I think you will find that in the decision of the Supreme Court of the United States. Mr. Cantwell. I have the decision here, but I do not think you will find it in the decision. Mr. Carter. That is my recollection of it. Mr. Cantwell. The clerk of the committee informs me that the print of the former hearings on this matter is exhausted; therefore 1 would like to ask that the hearings on H. E. 19213, commencing on February 14, 1912, be reprinted. Mr. Carter. You may take that up with the chairman of the Indian committee. Mr. Cantwell. I would like to refer to those hearings in my re- marks. I would like to refer to those hearings for a full statement of our position. I particularly call the attention of the committee to these two decisions — one by Judge Clayton and one by Judge Towns- end. The decision by Judge Clayton is to be found on page 459 and the decision by Judge Townsend on page 475 of the report of the Commissioner of Indian Affairs for 1898. Mr. Harrison. May I ask that Mr. CantweU have leave to extend his remarks and file a brief ? Mr. Carter. Without objection, that can be done. Mr. Bond. If Mr.' Cantwell is to have leave to file a brief and ex- tend his remarks, I request that we, as counsel for the nation, be served with a copy of the same. We would like to be served with a copy of the brief and remarks before we are heard by the committee. Mr. Carter. That should be done. _ , Mr. Post. As I understand your contention, the object of this bill is to enroll the Choctaw Indians of Mississippi and give them all of the immunities of citizenship in the Choctaw Tribe or as regularly enrolled citizens in the Choctaw Nation ? Mr. Cantwell. Yes, sir. Mr. Post. And you make that contention upon the theory that they are in fact members of that nation ? Mr. Cantwell. Treaty members. 20 ENROLLMENT IN THE FIVE CIVILIZED TEIBES. Mr. Post. Treaty members of that nation. And you want them to participate in all of the asphalt lands, coal lands, and the moneys that the Government holds in trust for the Choctaw Nation. Mr. Cantwell. Yes, sir. Mr. Post. I want to put this question to you Mr. Cantwell (interposing). You will see that we want them to iiave enough out of the funds in the Treasury to the credit of the Choctaws and Chickasaws to equalize th'eir allotments with those BOW enrolled in the Indian Territory. Mr. Post. Looking at the equity of your claim, is it not a fact that the Government set apart this land in the Indian Territory specifi- cally for the purpose of inducing the removal of the Choctaw Nation from Mississippi to the Indian Territory, and made the provision contained in article 14 of the treaty of 1830 to take care of those who did not want to move? Now, do you think it would be fair for those who refused to otiey the mandate of the Government and the request of the Government to move to the Indian Territory to be equalized in every respect with those who did move to the Indian Territory ? Mr. Cantwell. The best answer to that is to refer you to the con- ditions out West. Each one of them on the rolls there is rich, while those down in Mississippi have never gotten anything. Mr. Post. But nobody knew at the time that the Government tried to induce them to go to the Indian Territory that that land would make them the richest people in the world. They took their chances, and they might have been the poorest people in the world. The point I want to get at is this: They sued the Government and re- covered a judgment — would they not be amply taken care of if the members of the Choctaw and Chickasaw Tribes who refused to go to the Indian Territory were awarded their interest in the amount of that judgment? Mr. Cantwell. I think not. In the first place, it would be an ex- press violation of the rights which were secured to them by tliat treaty, and, in the next place, the United States Government was anxious in 1830 to induce these people to enter civilized life. It was just as anxious then as it was in 1893, when it asserted its right to break up the tribal organization down there in Indian Territory. Now, in 1830 the Government was desirous of civilizing these people, encouraged those who wished to get out of the tribal life, and to break the tribal relation, and, in pursuance of that purpose, it con- ferred upon them this right to the homestead in Mississippi, which but few exercised, while permitting them to retain their intei-est in the millions of acres of unoccupied lands equally with those who went out West. They took up the burdens then in 1830 which those people who went out West lately have assumed. Since then these people have enjoyed none of the benefits granted them in Mississippi, and none of the benefits which those who went West have enjoyed, but they have had more of the hardships and burdens than those who went West have ever endured. Mr. Carter. It is now 12 o'clock, and I suppose we will have to adjourn. Mr. Hurley. I would like to ask Mr. Cantwell a question or two in order that the issues may be defined before we adjourn. ENfiOLLMENT IN THE FIVE CIVILIZED TKIBES. 21 Mr. Carter. If you can do it in two or three minutes we will wait. We are going to give you plenty of time to be heard. Mr. HtTELEY. It is very important that we should have the issues defined. Mr. Cantwell. I would like to be back here in the course of 10 days or 2 weeks. Mr. Hurley. I would like to ask Mr. Cantwell this question: Do you claim that there is any Indian who is a resident or Mississippi or any other place at this time who now has any right to citizenship in the Choctaw Nation except under the fourteenth article of the treaty of 1830? Mr. Cantwell. So far as this bill is concerned, Mr. Hurley, and the people I represent at this hearing, I say no. There are other gentlemen who are interested in these enrollment matters who have different views of the law, and they have their clients. I say that the question of express tribal recognition is involved in a number of other cases; the question of birth to tribal environment — of parents who were not intruders in the Choctaw Nation is another question. The question as to such people who were excluded from the rolls is another matter not now under discussion. The people whom I repre- sent at this hearing on the Harrison bill are people who base all their claim of rights under the treaty of 1830. Mr. Hurley. You stated in th^ hearings last year that no Indian residing out of the Indian Territory had the right of citizenship in that tribe, unless his rights were secured by the fourteenth article of the treaty of 1830. Do you Itjll adhere to that ? Mr. Cantwell. As a lawyei^ I do not see any reason why it should not be so, unless he was recognized by the tribe at some time, or born to tribal environments. ' > Mr. Hurley. Do you contend that the roll of those who attempted to show their intention to remain in Mississippi and avail themselves of the privileges of the fourteenth article of the treaty of 1830, that was made up by Murray and Vroom under the act of 1842, was or was not a complete roll of those who so signified their intention to remain in Mississippi ? Mr. Cantwell. I contend this. That every scrap of evidence con- tained in the record of the case of the Choctaw Nation against the United States as to the settlement in Mississippi, under the treaty, by any of the members of the Mississippi Choctaw tribe in Missis- sippi, or as to their selection of land in Mississippi, is competent evi- dence to establish the fact that they were entitled to lands under' section 14 of the treaty of 1830, and entitled to privileges of citizens of the trib^ and to rights in this property. I further contend that the Choctaw Nation, by adopting the claims of those individuals and by championing the rights of those individuals in the suit by the tribe against the United States in 1885, is estopped from denymg. rights of citizenship to their descendants. Mr. Harrison. I want to get some idea of the procedure of the committee. Do you propose to hear the proponents of this legisla- tion first? , , .„ . „ Mr. Carter. We have not outlined any plan, but we will follow the usual course. Mr. Harrison. That is the usual course. . Mr. Carter. Yes ; I think it is. 22 ENEOLLMBNT IN THE FIVE CIVILIZED TBIBES. Mr. Harrison. I want to ask permission of the committee that after the ethers have finished I may make my argument — that is^ that I may close the argument. Mr. Carter. I should think that as a Member of Congress you ■would have the right to make your argument then. Mr. Ballikger. I think the side holding the affirmative of the proposition ought to have the conclusion. Mr. Carter. He is holding the affirmative. Mr. Ballikger. Mr. Harrison is taking the affirmative as to the Mississippi people, and I take it that is all he is interested in. Mr. Harrison. Those who are claiming rights under article 14 of the treaty of 1830. Mr. Bond. Mr. Cantwell, you cited the case of the Choctaw Na- tion against the United States, which is reported in the One hundred and Nineteenth United States Reports, page 1. Did you cite that case for the purpose of showing that the Mississippi Choctaws were entitled to citizenship by reason of being deprived of the moneys de- rived from that judgment? Mr. Cantwell. I cited that case for the purpose of showing what had been passed upon by the court, and to show that the claims of the tribe made against the United States in that suit included claims for all the lands that should have been given to these individuals in 1830. Mr. Hurley. Do you claim that the funds recovered in the net- proceeds case did not go to the people who were entitled to it under the fourteenth and nineteenth articles of the treaty of 1830? Mr. Cantwell. I claim that it was distributed to every member of the tribe Mr. Carter (interposing). Per capita? Mr. Cantwell. Yes, sir; and I claim further that there never was a payment of proceeds of that judgment to any of the remaining ones in Mississippi. I claim that this case is a conclusive recognition of the rights of these people as tribal citizens, for every selection of land made by them under the fourteenth article of the treaty of 1830 was made the ground of a claim by the Choctaw Nation against the United States in that suit ; that the amount awarded by the Supreme Court was the Senate award, or based upon the amount of the Senate award, which Senate award was in settlement of the whole contro- versy and all claims. T contend that the Choctaw Nation is estopped from denying the right of tribal citizenship to everyone of the descendants of those persons who were entitled to receive lands in Mississippi and to retain, by virtue of the fourteenth article of the treaty of 1830, the right of citizenship in the Choctaw Nation, with full privileges of citizens of the tribe. Mr. Bond. You recognize the distinction between a claim for money had and received and a claim to citizenship, do you not? Mr. Cantwell. Well, if you can tell me what relevancy that has to this controversy Mr. Bond (interposing). It has this relevancy: If any moneys derived from that judgment belonged to the Mississippi Choctawa east, their action would be a claim against the Choctaw Nation for those funds, and not a claim to citizenship. Mr. Cantwell. I do not propose that" you shall jam into mv argument any such contention as that. The insistence which I have made constantly is: That suit is a recognition of their rights as ENEOLLMENT IN THE FIVE CIVILIZED TRIBES. 23 tribal citizens, because if the tribe were not recognizing those people as citizens, each one of those claims would have been an individual claim, and not a claim of the Choctaw Nation against the United States. Mr. Bond. The Chickasaw Nation was not a party to that suit? Mr. Cantwell. No, sir. Mr. Bond. The Chickasaws did not derive the benefit of any funds arising from that siiit? Mr. Cantwell. The Choctaw and Chickasaw Nation is a joint tribe, and each one has the right to admit to citizenship. However, it may have been distorted by the constructions of the department, the treaties show the fact that Choctaws and Chickasaws were to become members of a common tribe, each with the right of settle- ment in the district of the other. The Choctaw and Chickasaw Na- tions were to be one tribe, one " nation," with two residence districts, and it was a joint nation with joint rights, and the idea that there should be an apportionment of one-fourth to one and three-fourtlis to the other is an erroneous idea. It is like some other erroneous doctrines of law which are the inventions of ingenious Indian law- yers in that country, devised for the perversion of the treaty, statute, and tribal law and for the destruction of human rights. Mr. Bond. My suggestion was that if you were entitled to any of the benefits of that litigation your action would be a suit against the Choctaw Nation and not an attempt to secure citizenship for individuals as against both the Chactaws and Chickasaws. These tribes owned no land in common in 1830, and were not jointly inter- ested in the judgment rendered. Mr. Cantwell. I deny the right of the gentleman to distort either my argument or my legal position. Mr. Carter. Are you sure about your statement in reference to that net proceeds case? Are you sure that there was a per capita distribution in that case? Mr. Cantwell. I have searched through all of the law libraries and through the Congressional Library, and through the published records of the Choctaw and Chickasaw Nations, but could find no record of disbursements of those proceeds of that judgment except of per capita distribution. Mr. Hurley. Mr. Cantwell, the list of scripees and patentees that appear in this document No. 898 of the Sixty-first Congress, second session, show that there were 3.684 of these people. Mr. Carter (interposing). Please suspend a minute. Let us de- termine on the time for the next meeting Mr. Hurley (interposing). Do you claim that your present clients are descended from scripee and patentees under the fourteenth article of the treaty of 1830 . Mr. Cantwell (interposing). I claim that our clients involved m this bill will be able to show, if siven an opportunity in a court of justice to show it, that thev are descendants of the people who were entitled to receive lands under section 14 of the treaty of 1830, and whose rit^hts as tribal citizens were preserved ; that part will be able to .ehow "descent from the people who actually made locations of lands in Mississippi and did not receive them, and some will show descent from those who did receive them. This document you hold 24 ENROLLMENT IN THE FIVE CIVILIZED TEIBES. in your hand is, not now introduced by me, and I do not know the relevancy of it. I am not required to determine its authenticity. I have not examined it. (Thereupon, at 12.15 o'clock p. m., the subcommittee adjourned until to-morrow, Thursday, April 2, 1914, at 10.30 o'clock a. m.) Subcommittee of Committee on Indian Affairs, House of Representati\'es, Thursday, April 2, 1914. The subcommittee met at 10.30 o'clock a. m-, Hon. Charles D. Carter presiding. There were present before the subcommittee Hon. J. B. Aswell, Hon. Byron P. Harrison, Hon. Thomas P. Sisson, Representatives in Congress from the State of Mississippi ; William E Richardson, rep- resenting certain Mississippi Choctaws ; P. J. Hurley, national attor- ney for the Choctaw Nation ; Ref ord Bond, national attorney for the Chickasaw Nation; and Webster Ballinger, representing certain Mississippi Choctaws. Mr. Carter. You may proceed, Mr. Richardson. Whom do you represent ? STATEMENT OF WIILIAM E. RICHARDSON. Mr. Richardson. I represent particularly the Mississippi Choc- taws, known as the full-blood and identified Choctaws. I am inter- ested in the Mississippi Choctaw proposition generally, but particu- larly with this class of the Mississippi Choctaws. Mr. Carter. Of what law firm are you a member? Mr. Richardson (Ralston & Richardson). Before I take up gen- erally the consideration of the treaty of 1830 I want to consider some of the events which preceded that treaty, and which, in my judg- ment, are the controlling factors in its construction. The first thing to which I want to call' tlie attention of the committee is this : That by the treaty of 1830 there was no grant of land west of the Missis- sippi to the Choctaw Nation. The land which the second article of that treaty, I think it is, confirms to the Choctaw Nation — ^that is, the present country of the Choctaws west of the Mississippi— had been granted by the treaty of Dokeston, October 18, 1820. The construction of those tAvo treaties by the Congress and by the Choc- taws themselves, as I will show more in detail, shows that nothing was added by the treaty of 1880 to the grants already made by the treaty of 1820, so that when the Government of the United States was dealing with the Choctaws in the negotiation and execution of the treaty of 1830 it was dealing with a united people who at that time were the owners in common of this country now in Oklahoma, to which the Mississippi or Eastern Choctaws are maldng claim. Under the treaty of 1820, which made the grant of that estate to the Choctaw Nation, it was not necessary that the Choctaw Nation establish itself exclusively upon that land, but that treaty of 1820 did this: It ceded to the Government of the United States abso- lutely and withoilt condition a vast quantity of these Choctaw lands ENHOLLMENT IN THE FIVE CIVILIZED TRIBES 25 in Mississippi, some 10,000,000 acres; and as a consideration for that concession the Government ceded to the Choctaw Nation all of the country now known as the Choctaw and Chickasaw Nations, west of the Mississippi Eiver. Now, the balance of their land remaining in Mississippi, the reser- vation as it had been diminished — it was provided that it might be used and occupied by the Choctaw Nation, and as they became civil- ized it might be partitioned into reservations for the members of the tribe that desired to remain there, and those who desired to move West might do so. At the time of the treaty of 1830 it appeared from the records that about 21,000 or possibly 28,000 of the Choctaws in the Nation at that time moved West, and were living on the lands west of th& Mississippi. Now, the Indian tribes, as a general proposition — and the Choc- taws particularly- — all of these early tribes had no estate except the landed estate which the Government recognized in them, and under the policy as it was then there could be no enjoyment of the estate except the right of occupancy as a tenant in common. That is to- say, there was no policy of individualizing the Indian land except as it had been announced for the lands remaining in the East. For the Choctaw Nation in the West it was guaranteed in these treaties that the property should be held in common forever. There was an express guaranty to that Nation that those lands in the West should remain as a common ground perpetually. That being the case, it is to understand the references which have at times been made to the fact that it was necessary that the Choc- taws who remained, at least temporarily — and some of them to the- present day in Mississippi — would have to move West to receive the benefit of their estate, because under the law as it then existed — and as it was intended to be a policy in perpetuam — it was impossible for a Choctaw to enjoy the benefit of the Choctaw estate without moving to the lands, because it was guaranteed that they should remain in that condition. Now, the Choctaws in 1830, when they made this treaty, did not desire everybody to move west and the history of that treaty is one of the things in connection with the administration of the Indian affairs which shows the power — ^the exercise of the superior power of the United States to force an inferior power to do what it want& done. At the time of the making of the treaty the Indians had as a body, refused to move, and had given notice to the commissioner — General Eaton, who was then Secretary of War, being the repre- sentative or commissioner — that they would not enter into a treaty by which they would be compelled to leave the State of Mississippi. Such representations were made to them that they finally, through- fear of what would result if they failed to sign it, signed the treaty. And upon the signing of the treaty, the majority of them decided — and the records will show this conclusively — to avail themselves of the provisions of the fourteenth article of the treaty, which would permit them to remain in Mississippi. Mr. Carter. I do not want to break into the contmuity of youi- argument, but I do not remember what the treaty of 1820 provided about removal. It did not provide anything about removal, did it?: 26 ENEOLLMENT IN THE FIVE CIVILIZED TEIBES. Mr. Richardson. It provide that those who desired to move may do so. That is to say, that it provided that those who desired to live by hunting and who preferred to live on the lands in common might inove ; and evidently under the treaty of 1820 the theory was that the main body of the Choctaws might and would live in Missis- sippi. Mr. Carter. Your contention is that the object of this treaty of 1820 was that the Indians should remain in Mississippi and be in- dividualized if they desired; or that they should go to Oklahoma and not be individualized if they desired? Mr. Richardson. Yes, it gave them the election. And it was not contemplated under the treaty of 1820 that those who remained in Mississippi became any less citizens of the Choctaw Nation. There was no provision in the treaty or in article 14 that they resigned the privilege, but under the treaty it was contemplated that the re- mainder of the nation would remain there; and it practically split the nation into two parts, one remaining, according to tribal customs, as tenants of property in common and the other individualized on reservations in Mississippi, and those reservations were located in one vast tract of land which was the land ceded in the treaty of 1830. And the proceedings under the treaty of 1830, after that treaty was signed, show that the majority — or a great number of the Choctaws — desired to remain in Mississippi and avail themselves of the purpose of that article — article 14 — and that they went to the Indian agent and signified their intention of doing that, that they did this in the manner that had been customary in such cases. The agent, as is shown by the records was not a man who was fitted for the duties of his position. Mr. Carter. That was Agent Ward? Mr. Richardson. Ward, yes. The Court of Claims in its findings of fact in the case of the Choctaw Nation v. the United States — and these findings are set out in full of the report of the Court of Claims in that case, volume 21 of the Court of Claims Reports, page 59. Among other things the Court of Claims found with respect to this agent that when a large body of Indians made application to him for these allotments, they brought sticks of different length, signifying the ages of their children; that there was a great bundle of these sticks and that he threw them away and said there were too many of them, and directed the interpreter to tell them that they must move; and the court finds that at the time he did this, he was intoxicated. Mr. Carter. They had to tell the ages of their children, etc., in order to determine the allotment? Mr. Richardson. Yes. The children under 10 years of age re- ceived half of the area of allotment that those over 10 years of age received; and those over 10 years received half of the area of the allotment which an adult was entitled to receive. Now, the court also finds that in his general dealing with these Indians he was abusive and insulting to them and intended to pre- vent them from making their applications. They go into details in this connection. Now, the court also finds that it was the intention of those who re- mained — the body of Indians who remained east — that it was their intention to comply with the terms of article 14 and reserve their ENEOLLMENT IN THE FIVE CIVILIZED TRIBES. 27 Tights. This was the action of the first agent who was appointed, and the records show — and I do not believe it necessary to go through all the details of that — ^but the records, after Mr. Ward had ended his connection with the affair, show that the agents and special agents who succeeded him in the management of the affairs of these eastern Choctaws, as they were Imown at that time — they were not called Mississippi Choctaws until recently — were just as coercive in their attitude toward the Indians and in their seeking to force them to move from Mississippi and give up the rights which the treaty had expressly guaranteed to them. This is true even down to Agent Cooper, who was the agent at the date of his report to the superin- tendent of Indian affairs on September 28, 1853. This report is written on a letterhead entitled " Choctaw Agency, AVest," showing the idea in those early days that there were two branches really of the Choctaw Nation. He says that he presents a plan, which, he thinks, is worthy of consideration, to induce the Choctaws in Mississippi to remove from Mississippi to the West, and he says that in his judg- ment one of the most effective modes for producing these results would be a law to arrest the wandering Indians as vagrants and bind out their children as apprentices to the different mechanical trades. Mr. Carter. What time was this being done? Mr. Richardson. That was being done from the time the treaty of 1830 was signed until about 1855. Mr. Carter. I mean what particular agent was doing that ? Mr. Richardson. This is a letter of Douglas E. Cooper, Indian agent,. Chcctaw Agency, West, September 28, 1853, to the superin- tendent of Indian Affairs, which is found on page 1236 of the record in the case of The Choctaw Nation v. The United States. Mr. Carter. He did not refer to any particular agent? They all did it? Mr. Richardson. No ; he recommends this plan. Mr. SissoN. Cooper himself is the agent. Mr. Carter. Yes; but I thought he was speaking of something that Ward, or some other agent, had done. Mr. Richardson. No; that was his plan in 1853, and it appears 'from the record that there were about 3,500 to 4,000 Choctaws still living in the State of Mississippi in 1853. Mr. Post. I want to call your attention to section 14 of the treaty of 1830. Now, it provides there that notice shall be given within six months from the date of ratification of that treaty of the inten- tion on the part of the Indian as to whether he will take an allot- ment or not. What, under the terms of the treaty, was to become of thelands which were nrt taken by the Indians? , tt • j Mr. Richardson. The lands as an entirety were ceded to the United States, and out of those lands ceded to the United States, reservations might be selected- by the Indians. They were, m effect, given the prior right to select such lands as they might desire out of that reservation before they were thrown open as public lands; and under the administration of the treaty and under the provision for this six months' notice those lands were not to be opened to general settlement until after their time for selection had expired. Mr Post Now, I want to call your attention to another thing. I have not read the treaty, but it says here that those who claim tinder this article shall not lose the privilege of Choctaw citizenship, 28 ENEOLLMENT IN THE FIVE CIVILIZED TRIBES. but if they never remove they will not be entitled to any portion of the Choctaw " annuity." What was the annuity? Mr. Richardson. That annuity was a payment made, to the best of my understanding, as a bounty for moving West. It amounted to some $20,000 to be paid and distributed for 20 years— that is, $20,000 eacli year for 20 years. The only object of the treaty of 1830 was to provide for the re- moval of the Choctaws West. The treaty of 1820 provided a means for their removing West, but the Choctaws, feeling that they would be coerced to move West, in a treaty executed and ratified in 1825 insisted on a condition which provided that they should not be re- moved without their own consent, and the Government, in 1825^ agreed to it ; but in 1830 the Government was determined that they should move, when it was discovered that they would not move vol- untarily, so that the only purpose of the treaty of 1830 was to secure their removal, and the only consideration for this grant of $20,000 was that purpose, so that this was paid to those Choctaws who moved West, and those who remained in Mississippi were not to receive it. The $20,000 was not a consideration for the land that they ceded under the treaty of 1820. It was included in the award of the Senate, in which they claimed the net proceeds of that land, and the case was afterwards carried to the Court of Claims, and then to the Supreme Court, where it was held that they were entitled to the net proceeds, and the courts held that that conveyance of lands to the United States was without consideration and left the United States the trustee of the proceeds of those lands for the benefit of these Indians. Mr. Post. Was the final award in that case diminished by the amount of this annuity? Mr. Richardson. Yes, that was done; but this annuity was apart from the award. The provision in the treaty was ambiguous, in my judgment, but that was the decision which the Supreme Court held, after the lapse of many years, was practical and substantial justice, as I recall the expression. Mr. Carter. What was the net aimount of that award? Mr. Richardson. $2,900,000 and something. I do not recall the exact amount. Mr. Hurley. It was $2,981,247.30. Mr. Post. To whom was it paid? Mr. Richardson. To the authorities of the Choctaw Nation. And since we have gotten into this matter, I want to say this. The Choc- taw Nation, through its commissioners, a delegation headed by Peter C. Pitchlynn, came to Washington and spent a year here, or more, before they could negotiate the treaty of 1855, which submitted the question of their claims to the Senate of the United States for decision. That commission, in its oral and written representations to our Government and in its memorial presented to President Pierce in 1855, said this, after rehearsing the facts which I have just covered generally, with regard to the acts of the Government in depriving the Eastern Choctaws, as the term is used in the memorial, of the reservations to which they were entitled in Mississippi; that they were driven off and intimidated; that those who had actually selected their allotments were driven away and were fugitives in the swamps of Mississippi. He says it is impossible because of lapse of time to settle those claims, and he asks' that the total amount of ENEOLLMENT IN THE FIVE CIVILIZED TBIBES. 29 indemnity which is to be allowed for the loss to the Eastern Choctawg «f their reservations m Mississippi shall be paid to the Choctaw ^atlons, because they can to better advantage distribute that amount among the people who are entitled to it. Mr. Carter. How were they driven away to the swamps? ^ Mr. EiCHARDsoN. I think I can better answer that by a quotation from some of the contemporaneous records. I can not find the quota- tion now, but here are the facts, Mr. Chairman. These people who lived in Mississippi supported themselves in two ways, as is shown by contemporaneous records. They went about in the season of the year when the cotton picking was carried on— they went about in various sections of the State and engaged in picking cotton for the planters. They also engaged in hunting, and these two occupations required their absence from their allotments, and they took their families with them for considerable periods of the year. A man would have these improvements — they did not amount to very much— upon his reservation, as the treaty provided, and he would go away, and when he came back he would find a white family lodged on his place, and it was impossible under the conditions that existed in Mississippi with the Indian agent, who ought to have been the man to protect them in the possession of their property-^with the Indian agent endeavoring to force them out of Mississippi, it was impossible for them to get their property back. Mr. Carter. The white people worked the plan of socialism on the Indian ; when he left his property they appropriated it as theirs ? Mr. Richardson. That is practically the situation. Mr. Post. That would apply to the 143 who had allotments, but what about those who were domiciled? Mr. EicHARDsoN. No; that would not apply to the 143 who got their reservations, because the 143 was what was left of some 7,000 Indians who endeavored to stay on their allotments 5 years so that they could get their patent. These 143 lived on the allotments for five years and got a patent, but the rest of the 7,000 who tried to do it failed and lost their allotment. Mr. Bond. May I ask you a question? Is it your contention that by virtue of the misconduct of the United States agent in Mississippi that the Choctaws west became liable for such misconduct, and therefore they ought to give the Mississippi Choctaws rights ai citi- zenship in their nation? Mr. EiCHARDsoN, I believe that that question is one that I will have to answer with a little explanation. I take this position : That the acts of the United States officials in charge of the Choctaws east and west resulted in a great hardship being imposed on the Indians. A great many of these Indians who are in the nation west, by rea- son of the acts of the agents before they removed from Mississippi, were prevented from acquiring the reservations in Mississippi which they could have acquired there before they removed to the Choctaw Nation, as they did in later years. Now, I do not believe that the rights of the Choctaws in Mississippi, as to their citizenship in the Choctaw Nation, depend directly on these acts of the Indian aeents iov this reason: That the Choctaws in Mississippi were entitled, under article 14 of the treaty, to the rights of citizenship in the Choctaw Nation— that privilege was expressly reserved. 30 ENEOLLMENT IN THE FIVE CIVILIZED TEIBES. Now, the acts of the agents, if they had. permitted them— if they had aided the Choctows in securing possession of and living upon tiieir allotments for five years and receiving their patent — that would rot have had any bearing upon their rights, but it would have had the practical result that some of them would have sold their lands at the end of the time and would have gone to the Choctaw Nation and been there now. The acts of the agents did not add anything to the value of the Choctaw Nation west or detract anything from the value of its property. The right of citizenship was not depend- ent upon the acts of the Choctaw agent. That involves more or less the question aslred by Mr. Hurley when Mr. Cantwell was making his argument; that is, as to whether these people have any claim other than under the language of this reservation of the right of citi- zenship in article 14. Now, I think that we are entitled to a very liberal construction of these provisions, because this treaty says thait- shall be given it. Article 14 provides that they may perfect their titles after five years' residence and permits them to become citizens of Mississippi. It provides for their civilization and becoming as other citizens of Mississippi. When an Indian goes away from his tribe and adopts the customs of civilized life, becomes a citizen, and severs his con- nection with the tribal Indians, he loses his rights. And as to those people who pursued to its end the provisions of the fourteenth article, had they not retained this specific provision that they should not lose their privileges as Choctaw citizens, there would be a grave question in my mind as to whether they would have any interests whatever as Choctaw citizens. But when these people who intended to do that in great numbers were prevented from doing it, when they did not adopt the habits of dualized life, when they did not acquire any land in the State of Mississippi, when they lived in bands under their chiefs back in the swamps, a forfeiture of their rights as Choctaw citizens is contained in no provision of the statutes. Mr. Hurley. If you will permit me to interrupt you, the third article of that same treaty made it incumbent upon every Choctaw to move to the land west of the Mississippi River. The only right that was given anyone to retain any privilege and remain out of the territory west of the Mississippi was given under the fourteenth article. Do you mean to say that the third article of the treaty is susceptible of more than one construction? Mr. Richardson. You must recall that in the third article of the treaty there is no limitation on the time within which they must do that. Mr. Hurley. Oh. yes: it is provided that in order to facilitate their removal one-half should go that year (1830) and the other half the next year, so as to give the United States Government an opportimity to handle the remnvnl in a humane manner. Mr. Richardson. I have not the section before me at the present time, but I never understood that article 3 of the treaty took away the rights of those who did not go in those years; and tliat has never been undersood by the Choctaw authorities, because you will find that si'bstantiiilly half of the present Choctaw Nation did not com- ply with that, but that they moved in later years. ENBOLLMENT IK THE FIVE CIVILIZED TEIBES. 31 Mr. HtTBLEY. Have you read he "talk" that the commissioners who went to Mississippi to negotiate the treaty of 1830 made to the Choctaws prior to the time that the fourteenth article was inserted? Mr. EiCHARDSON. Yes ; I have that right here. Mr. Hurley. If you care to have that portion read into the rec- ord, it will give some light as to what the commissioners would have the Choctaws do, other than those who claimed under the fourteenth article. Mr. EiCHARDSON. Mr. Hurley, in the case of the Choctaw Nation v. The United States the court held that it was not admissible to con- strue the treaty that way. Mr. Hurley. The court did construe the treaty to mean that the only claims by those who remained in Mississippi were under the fourteenth article, and did not recognize any of the claims of any Indians in Mississippi other than fourteenth and nineteenth article Indians. The nineteenth article Indians were those who had owned property and were allowed to reserve their homes and at the same time removed to the Choctaw Nation west. Mr. EiCHARDSON. Now, I have deviated some from the intended course of my argument, but I want to add to this early history of the Choctaws this fact, that at no time until the act of 1896, when the division of the property of the Choctaws and the distribution of tliat property to individuals was commenced — at no time did the Choctaw Nation ever deny the right of the Choctaws living in Mississippi. We find that in the treaty of 186§ the provisions con- templating the distribution and division of the Choctaw property, as it was afterwards carried out under the act of 1896, but express provision was made in that treaty for the Mississippi and other non- resident Choctaws sharing in that distribution, and it was provided that the notices of the right to select allotments under the treaty should be published in other States, including the State of Missis- sippi, which was specifically named in the treaty of 18G6, and the Choctaws living there were given five years to signify their intention to do so. Mr. Hurley. But they were not to have citizenship rights or share in funds unless they did remove to and become bona fide residents in the Choctaw Nation. Mr. EiCHARDSON. Within five years. _ Mr. Hurley. They were to signify their intention to remam in Mississippi within six months, and they were given the right to acquire title to the land reserved to them after they had resided upon the land for five vears. Mr. AswELL. They did not have the money to move. Do you think that ought to deprive them of their rights, if they were too poor to move? ... , ^, Mr. Hurley. The United States made provision for them to move more than once. It provided for their removal in 1830 to 183.3, and in 1842 provision was made by the issuance of scrip for all scrippers to remove to Indian Territory. The Choctaw Nation made provi- sion for their removal in 1891, and $20,000 was appropriated by the United States Government on March 3, 1903, for their removal. Provision has been made at least six different times to remove them. 32 BNEOLLMENT IN THE FIVE CIVILIZED TRIBES. Mr. AswELL. But do you think those Indians knew about that, considering the way they were being imposed on by those crooked agents? . . Mr. Hurley. 1 am certain they did, because the commission to the Five f'ivilized Tribes worked among them, and under one provision in 1903 they brought over all who would go. Then there are the acts of the Choctaw Council also, which I will read into the record later, which show that a considerable number of them were removed at the request and expense of the Choctaw Nation — all they could get to come, regardless of whether they were fourteenth article In- dians or not. Mr. AswELL. Do you know that they all knew about this article? Mr. HuKLET. Of course, that is an impossible question. I was not there in 1830 or in 1842, but the records show that the commissioners went among them and advised them of it. Mr. Richardson. The Choctaw Nation has always recognized this part of the tribe in Mississippi, and we find as late as December 24, 1889, legislation of the general council of the Choctaw Nation, which is as follows : Whereas there are great numbers of Choctaws yet in the States of Mississippi and Louisiana wlio are entitled to all the rights and benefits of citizenship in the Choctiiw Nation; and Whereas tliey are denied all rights of citizenship in their State; and Whereas they are too poor to migrate themselves into the Choctaw Nation; Therefore be it Resolved hy the General Council of the Choctaw Nation assembled. That the United States Government is hereby requested to make provision for the migra- tion of such Choctaws from such States to the Choctaw Nation. Now, that brings the situation down to the act of 1896, showing that they were never questioned up to that time. There is an inter- esting incident in the debate which grew out of the act recognizing the Mississippi Choctaws in 1900 and 1902, when the act of July 1, 1902, was passed. An attempt was made in the Senate to amend section 41 of the act of July 1, 1902, by inserting in that section a provision for an appropriation to aid in removing these Indians, but after some debate that section was ruled out. The appropriation of $20,000 was afterwards made in a deficiency bill. The reason assigned on the floor of the Senate by the then chairman of the Committee on In- dian Affairs of the Senate, for his objection to putting in an amend- ment to aid these Mississippi Choctaws in that section, was that the Choctaw Nation — the Choctaw and Chickasaw Nations — would re- fuse to ratify that treaty if that proposition were contained ; and he called attention to the fact that until the time of the act for the dis- tribution and division of the estate of the Choctaw-Chickasaw Nation, they were willing and ready to recognize these Mississippi Choctaws, but when it get into such a position that the adding of any new names to the rolls diminished proportionately the shares of all the other citizens then they opposed it; showing that that same objection prevailed right through this period and right from the time the distribution of the estate commenced. That is the rea- son of this opposition on the part of the Choctaw Nation. I referred to the case of The Choctaw Nation v. The United States, and I want to supplement my reference to that case by this state- ENKOLLMENT IN THE FIVE CIVILIZED TBIBES. 33 ment, that in that case the Choctaw Nation claimed damages for the deprivation and driving off from their reservations of the eastern Choctaws who lived in Mississippi, and I want to say this, that the claim made and the acceptance of that money by the Choctaw Nation when it was paid, showed that the Choctaw Nation regarded the rights of those eastern Choctaws as such rights as might enable the Choctaw Nation to make these claims against the United States. Mr. Hurley. Will you permit a question ? Mr. EiCHAEDsoN. Yes. Mr. HuBLEY. Do you contend that the claims under the fourteenth article and the claims under the nineteenth article of the treaty of 1830, as set out in the decision of the Court of Claims, volume 21, Keports of the Court of Claims, page 75, were not paid to individual claimants, but were paid to the Choctaw Nation? Mr. EiCHAEDSON. I claim that they treated it in exactly the same way that the Government of the United States treats the claims of its citizens against a foreign nation. The Choctaw Nation made a claim against the United States, and as a part of that claim it sets up the claim of certain individuals. When it received the money from the United States that money belonged to these individuals, ■and I have no doubt they were paid — at least a considerable number of them were paid. Mr. HtjELEY. Then you admit the Choctaw Nation did not get those funds, but the individuals who were deprived of their rights under these articles of the treaty got the funds. Mr. EiCHAEDSON. That is something which it is impossible to prove, for the reason that the Court of Claims in deciding this case refused to give effect to the award of the Senate. It gave the Choc- taws a judgment on behalf of these individual claims to the amount of $405,000. Mr. Caetee. Can you give the committee any information as to what the balance of the Senate's award embraced besides this claim that you mention ? 1 do not want to divert you from your argument, but I would like to know that. Mr. EiCHAEDSON. I have the Senate award here and I can give you the reference. It is found on page 1399 of the record of the case of the Choctaw Nation v. The United States. Mr. Caetee. Won't you just analyze that, right now, Mr. Eichard- son, and tell us what each one of those amounts is f or ? Mr. EiCHAEDSON. In this award the Choctaw Nation was allowed the proceeds of the sales of the lands in Mississippi, which had been sold prior to the 1st day of January, 1859. This award was made on March 9, 1859, and deducted from those proceeds the cost of the survey and sale, and all proper expenditures and payments made under certain contracts, excluding the reservations allowed and se- cured—that is, under the fourteenth and nineteenth articles— and estimating the scrip in lieu of reservation at the rate of $1.25 per acre. It provided that for the residue of the lands unsold on January 1, 1859, they were to be allowed 12^ cents per acre. That is the only award of the Senate. j. a j.i,„ Mr. Caetee. That aggregated $2,900,000, which was net to the Choctaws ? 64969—15 3 34 ENROLLMENT IN THE FIVE CIVILIZED TRIBES. Mr. EiGHARDSON. That made an aggregate of about $8,000,000, after these deductions referred to in the award, the same deduc- tions Mr. Cabtee (interposing). That was the net aggregate. Mr. BiCHAEDsoN. Yes. Mr. Post. Have the Choctaws anything to show to whom they paid this money? Mr. EiCHAEDSON. That, I understand, is very difficult to show. Mr. Hurley could probably tell you whether that is shown or not. But I will say this, that before the award was received, before the Court of Claims had determined who were entitled to these in- dividual claims a great many of the Choctaws had filed claims. A great many were disallowed and a great many were allowed ; but I understand that practically all those that were allowed were Choc- taws who were living in the nation west, because that was where they conducted these proceedings. They did not go to Mississippi to find anyone there who was entitled to it. So, as I understand it, all of this money, actually went, every cent of it, to the Choctaws in the nation west, and none of it went to the Choctaws in Mississippi, although in figuring on the amount of these individual claims they included the claims of these Indians in Mississippi. That is very easily demonstrated, because if you go over their figures in the record of the case you will find that they took the total number of Choctaws who had endeavored to get their selections; then they subtracted from that the 143 who actually got them; and' then they subtracted the value of the annnity. Then they figured up the $405,000 which entered into that. The Senate made this award March 9, 1859. That award was not paid, and the controversy was referred to the Court of Claims with instructions to render judgment and that this award of the Senate should not be regarded as an estoppel. Where- upon, the Court of Claims went into these facts and rendered judg- ment. One item was $405,000 on these individual claims. The Court of Claims disregarded this award of the Senate. When the case went to the Supreme Court, the Supreme Court reviewed these various individual claims and they said that as the Senate had passed upon that, a prima facie case was established which, while it did not create an estoppel, in view of the many difficulties of get- ting an exact statement of the facts, the United States Supreme Court gave a judgment on the basis of the Senate award. Mr. Post. I would like to hear you on another proposition that has occurred to me. I do not want to break the point of your arsru- ment, but perhaps I can illustrate what I mean. Suppose that this Choctaw Nation originally, back in 1830, was on an island in the Atlantic Ocean and in the treaty between the United States, under certain conditions, as provided in article 14 of the treaty, the bulk of the tribe were moved west of the Mississippi River, some of them remaining back for 80 years — that is the space of time in this case, and thev refused to go with their nation — they refused to assume any of the responsibilities of the Government — would they or would they not lose their right of citizenship in that government, and would they not be bound by the laws of that nation in force at the time of the removal, and the laws that thev mav have made from that time up to the present time affecting citizenship? ENROLLMENT IN THE FIVE CIVILIZED TRIBES. 35 Mr. EicHARDSON.. Well, I would have to suggest this qualifica- tion of your question to meet the facts of the present case, that before the transaction by which those living on the island were to move, they had, as a people in common, bought and paid for the land west of the Mississippi. Because that is this case. The Choctaw Na- tion—the ancestors of the people, we claim for now — prior to 1830 had bought and paid for the Choctaw Nation west of the Mississippi Kiver, and they owned that land as tenants in common before the treaty of 1830 was negotiated. Now, you have a case here where you are attempting to forfeit a right which existed, and for which there is no condition of forfeiture. I should say that as far as their politi- cal interest in the affairs of the nation is concerned they might be expatriated by a voluntary act of their own, but as far as their owner- ship in common of lands that had been bought and paid for, I do not believe that under those conditions they would forfeit their rights. Mr. HuBLEY. Notwithstanding the fact that the deed by which it was conveyed to them said that it should be theirs as long as they lived upon it? Mr. EiOHARDsoN. Absolutely; yes. Mr. Hurley. The grant from the United States to the Choctaw Nation west. It should be theirs as long as they existed as a nation and lived upon it, and there was a reversionary interest in the United States in case the Choctaws should move away from the land. Mr. Post. That is a serious question to me. Mr. Richardson. I want to explain that. There was no such con- dition in the title prior to the treaty of 1830. In May, 1830, Con- gress passed an act \yhich provided that in the granting of lands to Indian tribes a condition should be inserted that it could remain the property of the tribe as long as they remained on it, and if they abandoned it or became extinct as a tribe, then it should revert to the United States. Now, that was for the purpose of affirming the right of the United States — the ultimate right of the United States — over Indian lands ; that is to say, t]aat the Indian nation had no right to sell it without the consent of the United States, and if they be- came extinct as tribe, or their affairs became in such a condition they ceased to occupy or use the land, then their title became extinct and it reverted to the United States. In the decision of Judge Townsend that question is answered, I think, in this very way, that so long as any considerable body of the Choctaw Nation occupied that land they fulfilled the conditions of that treaty. That is to say, the provision for residence under that treaty to maintain title to this land was not a provision affecting the individual as an individual, but it was a provision affecting the na- tion as a nation, and when the nation as a body resided on the land they fulfilled the condition. It did not provide that the removal of any individual should forfeit his right. Mr. Hurley. You mean to take the position that prior to the amendment any Choctaw Indian could leave the Choctaw Nation and become an alien from his own nation, a citizen of another State, and still retain a right to the property of the nation? Mr. Richardson. Tha is exactly what article 14 in the treaty re- serves to them. Mr. Hurley. It reserves to them a personal right — not to his heirs, but to " persons claiming under this article." 86 ENROLLMENT IN THE FIVE CIVILIZED TKIBES. Mr. RicHAEDSON. That has, as I understand it, always been differ- ently constrvied. Now I want to get to another part of this argument. Mr. Post. Let me ask you another question there. Suppose that in this case the Choctaw Nation — the government of the Choctaw Nation itself removed from Mississippi, did it not ? Mr. EicHAEDsoN. Yes. Mr. Post. There was no Choctaw government in Mississippi pos- sible after 1830, was there? Mr. EiCHAEDSON. There was the same Choctaw government that had existed before that time. The Choctaw Nation had no principal chief. It was not an organization in the sense that it has been in the last 50 years. Mr. Htjeley. As a matter of fact, such government was prohibited by the laws of the United States and the State of Mississippi after 1930, was it not? Mr. RicpiAEDSON. No; it was not prohibited by the laws of the United States. Mr. HuELEY. Did not the laws of the United States provide that the Choctaw government should be west of the Mississippi, and did not the laws of Mississippi specifically provide that there should not be any tribal organization within that State? Mr. EiCHAEDSON. The laws which were passed by the State of Mississippi at the instigation of the agents who were attempting to make these people move, made it a penal offense in Mississippi for a person to exercise the office of chief. In spite of that fact it was known that these people were continuing to live in bands ; that chiefs were continuing to live in bands; that chiefs were continuing to exercise the right there, in spite of the opposition of these agents. This will be found in the records of the case of the Choctaw Nation v. The United States, and they were doing that 12 to 14 years after the passage of the act. The agent states that one of his best means for inducing these people to leave the allotments which the treaty guaranteed to them, and in the ^joyment of which they ought to have been protected, and forcing them to move to the Nation west, was to take a volume of the statutes and take a number of white men there and read to them about the length of time they might be Bent to prison for doing the acts which they were doing. Mr. Htjeley. They were amenable to the laws of Mississippi, which prohibited tribal organization, were they not? Mr. EiCHAEDSON. They prohibited any person from exercising the office of chief. I do not think they prohibited a tribal organization. Mr. Cartee. Was that the Mississippi State law ? Mr. EiCHAEDSON. Yes; the laws of the United States never pro- hibited that. Mr. Caetee. But the Mississippi State laws did prohibit anyone from exercising any of the duties of a chief? Mr. EiCHAEDSON. Yes; from assuming to hold office, or to exercise the duties of a chief. Mr. Hurley. They were not permitted to pass any laws, or to have any tribal organization to enforce them. Mr. EiCHAEDSON. That might be true. I can not say as to that. ENEOLLMENT IN THE FIVE CIVILIZED TEIBES. 37 Mr. Post. Now these claimants — this happened 80 years ago— are all descendants of those who were entitled under the treaty of 1830, are they not? Mr. KicHARDSON. Yes. Mr. Post. And they were all born outside of the jurisdiction of any' government of the Choctaw Nation ? Mr. EicHAFDSON. The present claimants, yes, that is true. Mr. Post. How have they exercised any allegiance to the Choc- taw Nation, the government of the Choctaw Nation ? Mr. EiCHARDSON. I will say this, in answer to that question. As a people they have been recognized, and they recognize the Choctaw Nation west. From time to time since the signing of the treaty of 1830 down to recent years, these Choctaws have moved from Mis- sissippi to the Choctaw Nation, and when they go to the Choctaw Nation they have been recognized as entitled to citizenship. I read a few minutes ago the resolution passed in 1889 by the Choctaw Nation west of the Mississippi, urging the Government of the United States to help these Choctaws in Mississippi to get there. Now this situation has arisen. Sometimes a son, sometimes a brother or father, has moved, and has been taken in and recognized as a citi- zen of the Choctaw Nation. There are men in the Choctaw Nation to-day whose children- are living in Mississippi and are now claim- ants. There is a man of the delegation of these Mississippi Choc- taws who was in Washington a considerable portion of this winter, and who lives at Bayou Lacomb, La., whose father is enrolled on the Choctaw rolls and has received an allotment. His uncles and hia^ grandfather and other members of his family are also there. His mother separated from his father when he was a yoimg boy, so that when his father moved he did not take his son with him. He is the only child, and yet he is left off the roll. There are numerous illustrations of this, where some members of the family are in Mis- sissippi and are off the rolls, while other members of the family are in Oklahoma and are on the rolls, so that as a family they have been reco^ized by the Choctaw Nation. Mr. Post. That is, these who live in Oklahoma are recognized as members of the tribe, while those in Mississippi have not been so recrgnized ? Mr. Harrison. The treaty expressly provides, dres it not, by the fourteenth article, that members who claim rnder this article do not lose the privileges of a Choctaw citizen ? The treaty expressly pro- vides that they can reside in Mississippi and be citizens of Mississippi without losing any of their rights as members of the Choctaw Nation? Mr. Post. Yes ; I understand that. Mr. Carter. I think there is one thing that ought to be shown in justice to the Choctaws in Oklahoma. It has been shown, but I think it should be emphasized, and that is that they never" refused to admit any bona fide Choctaw to citizenship when he has moved to and es- tablished residence in the Choctaw Nation. Is that net the case ? Mr. EicHARDSON. I think that has been their course right from the beginning. . . ,. . , , • Mr. Carter. So long as they have had the jurisdiction of their matters they never have refused to admit one when he would live there. 38 ENROLLMENT IN THE FIVE CIVILIZED TEIBES. Mr. Richardson. I do not know of a single instance of their ever having refused one. Mr. Carter. Before one would be entitled to the rights of citizen- ship they always have an action of the council giving them the rights of citizenship, did they not ? Mr. EicHARDsoN. They have had a citizenship committee up until this time, which was authorized by the council to admit people. Now, I want to go to another phase of this case. Under the act of 1896 the Mississippi Choctaws — a great number of them — applied for enrollment through the Dawes Commission, and their claims to en- rollment were rejected by thfe commission in all cases where they had not already removed to the Choctaw Nation; where they had re- moved they were recognized.' Appsals were taken from these de- cisions to the United States districts courts, vrith the result that in Judge Clayton's district, in the case of Jack Amos, he affirmed the holding of the commission in so far as a nonresident Choctaw was concerned. Mr. Post. What did they base that finding on ; on the lays of the Choctaw Nation? .Mr. Richardson. It consists of seven or eight pages, and I think it . has Jjeen put in the record- I may say this, however. It is based, in ihy judgment, upon two things. In the first place. Judge Clayton practically has failed to take cognizance of the fact that the Choctaw estate, which is the basis of the distribution, was not granted by the treaty of 1830. If you will read his opinion you will find that it is based on the assumption that the land was granted to them by the treaty of 1830, and only took effect as to those who removed. It is also based upon another fact, and that is he does not distinguish be- tween the political rights of citizenship and the reservation of that right, and the reservation of the property right. Now, I do not say that he was wrong in that, but the legislation under which he was acting limited him to a decision of whether or not, as a political question, these men were citizens of the Choctaw Nation. It did not give him the power to decide whether as a matter of right, even if they did not acquire their citizenship — or retain citizenship — ^they had an interest in this property. In my view of these things, from the beginning — and I have been connected with the case of these Mississippi Choctaws, some of them who secured their rights in 1902, for a period of 14 years — in my judgment the situation of these Choc- taws was this : That they had the contingent right to acquire a vested interest in this land by removal. Although it was proper to admit them by legislation, it was not required by them. The treaty gava them that right. They had an interest in the land, which was guar- anteed as long as it remained in this undivided condition, and they could secure the beneficial use of that interest by removing at any time. Now, when the Government of the United States, by virtue of its superior power, modifies or reverses that situation and starts to distribute the property, the men who had a contingent fee interest in that property had a right to have that interest valued and paid for. And that is the right that the Mississippi Choctaws had been claiming for many years. Now, in the decision of Judge Townsend in the southern dis- trict, on the appeal of these cases — ^his opinion was written at about ENROLLMENT IN THE FIVE CIVILIZED TKIBES. 39 the sahie time that the Clayton opinion was delivered— he affirmed the rights of the Mississippi Choctaws to be enrolled and to par- ticipate in the allotment of this estate, basing his opinion largely on the correct interpretation of this treaty with the Choctaw Nation. The estate had been granted to the Indians under the treaty of 1820 and under the treaty of 1830, as is shown by the references in his opinion. .Mr. Post. In other words, their interest was a vested right which the government of the Choctaw Nation could not divest ? Mr. EiCHAEDSON. That is absolutely the case. Mr. Carter. Now, wait just a minute there, Mr. Richardson. Is it your contention that there can be a legal vested right in tribal property? Mr. Richardson. Yes, sir. Mr. Carter. Of course, you are familiar with the Lone Wolf decision and the Cherokee Baby case ? Mr. Richardson. Yes, sir. Mr. Carter. Do you not think that they very nearly destroy the possibility of the Indian having any vested rights in tribal prop- erty ? Mr. Richardson. I was one of the counsel in the Wallace case, which involved the same thing. My understanding of the decision of the Supreme Court is that, although the property rights may be dependent on whether the man is a citizen of the tribe, yet the question as to enrollment is political, and there is no vested right as to that. That is to sav, that an Indian may be deprived of his citi- zenship and thereby lose a property right, without the matter of whether or not he is a citizen involving the property right. That, is the decision of the Supreme Court. Mr. Hurley. In the case of Stephens v. Cherokee Nation, One Seventy-four United States, 445, they found this : But In any aspect we are of the opinion that the constitutionality of these acts In respect of the determination of citizenship can not he snccessfnlly assailed on the ground of iBafiairment or destruction of vested rights. The lands and moneys of these tri'hes are public lands and public moneys, .-md are not held In Individual ownership, and the assertion by any particular appli- cant that his rl«ht therein Is so vested as to preclude inquiry into his status Involves a contradiction in terms. Mr. Richardson. Yes, but when you say "status" they refer to the status as a citizen or noncitizen. Mr. Post. Is not the effect of that language that a member of the Choctaw Nation would not have a benefit in common use of the public property? Mr. Richardson. Well, that is the jjarticular provision of the treaty. It provides that they shall hold it as tenants in common. Mr. Post. Does the treaty say that they hold as tenants in com- mon? • 1 . Mr. HuRLET. I have not found any such language in the treaty. On the contrary, all of the decisions in the matter have held con- trary to that opinion. .,..,, , , ^, Mr. Post. You have assumed that the individual member of the Choctaw Nation who owns this land was a tenant in common in that land. Now I want to give you an illustration. Take our pub- lic domain, which belongs to a hundred million of people. Do you 40 ENROLLMENT IN THE FIVE CIVILIZED TBIBBS. contend that as a citizen of the United States you are a tenant in common with the others? Mr. ElCHAEDSON. No. Mr. Post. Isn't that your position now ? Mr. Richardson. No; I do not thinli so. I say that, equitably/ of course, these propositions which we have to argue are not propo- sitions which are enforceable as such in a court of law. But here is the situation: We come before Congress just as other bodies of Indians have come — as the present Choctaw Nation in Oklahoma has come before Congress — asking Congress to do what is right in the distribution of this money. We are not here necessarily even depending on a legal claim. We say that we are entitled to citizen- ship rights in the Choctaw Nation; that that was reserved by us in the treaty; and we say that our members who had the same reserva- tion have, from the date of that treaty down to 1903, been given the advantage of it; we say that we were met by conditions in 1900 to 1903 which prevented us from taking advantage of the legislation 23assed at that time; and we say that before this estate of the Choc- laws is wound up and distributed our rights as citizens should be inquired into and determined, and if it should be found that we have the right of citizenship in the Choctaw Nation we should be given that right. Now I want to say this: We have among these Choctaws — and I particularly represent them — about 1,000 to 1,200 full-blood Indians who were identified, almost all of them — possibly 100 were not — who were identified as entitled under the fourteenth article by the officers of the Interior Department in 1902 and 1903. These Indians are living down in Mississippi, and some in Louisiana, in the same conditions in which their ancestors lived at the time of the treaty of 1830. They are living in thatched huts; they are living back in the swamps; they can hot speak English; and they can not read or write. They do basketwork and things of that kind, and they pick cotton sometimes for a living." Their condition is deplorable at this time. They have no schooling for their children. The children can not speak English and can not attend the white schools. Mr. Carter. They are not prevented from attending, are they ? Mr. EiCHARDsoN. No'; but as a practical question they can not. That is their condition, and their children are growing up in these same conditions that they have been living under year after year. Now their condition has been investigated. There is an extended report from the Bureau of Ethnology in the last few years upon one of the settlements of these Indians. These conditions make it impracticable to deal with these people as we would deal with intel- ligent white people able to look after their claims when the enroll- ment of l!^99 to 1902 was being carried on. But notwithstanding that fact, the commission went about among them and satisfied itself that under the law at that time upward of 2,000 Indians were iden- tified and found entitled under the fourteenth article. Now, these people were met with the fulfillment of this condition in that article. That is to say, they must within six months after identification re- move and be in the Choctaw Nation. They must do that within six months after identification, and live there three years. They had to make proof during the first six months there, and they had to make proof at the end of that time. That was the provision of sec- ENEOLLMENT IN THE FIVE- CIVILIZED TEIBES. 41 tion 41 and one or two sections following in the act of Julv 1, 1902. In the spring of 1903 Congress appropriated $20,000 to a'id in the removal of these Indians. That appropriation was exhausted and a deficiency was created in the removal of about 269 of them. The records of the Interior Department show that a deficiency of about $1,000 was created in the removal of those few Indians, although nearly 3,000 Indians had been identified. Congress appropriated $20,000 to move them and the car fare— this $20,000 would not have paid the car fare for one-third of them. Now, in addition to the fact that these people were not pro- vided for by the Government in the way of their expenses for re- moval, they were not given proper notice to enable them to move. The general list was made up and reviewed by the commission from 1899 to 1902, and on February 14, 1903, the majority of those cases had been identified by the commission, and the commission started to send out notices to these Indians who had been identified and were entitled to move. I have with me, and I want to ofl'er to the committee, some of those nctices. One of these is dated more than a month after the decision, so that they had les^ than five months to make their removal. It did not notify tbem that they had to move, but simply notified them that they had been identified. They sent a man to move these Indians, but he got there about the time that the period for removal was over. I have here one of his original poster notices, to be posted in prominent places in Mississippi, for their removal, and the significant thing ahont this notice is that it is dated Meridian, Miss., July 27, 1903. That is the printed date in the notice. The time within which these Mississippi Choctaws had to be in Oklahoma was August 16, 1903, or 17 days after the time that this notice was printed. I have also a copy of a printed circular letter which he mailed to these Mississippi (^octaws. That printed circular, is dated July 27, 1903 — the dates are all printed in here — it says: "On February 14, 1903, you were identified as a Choctaw, and the six months within which you must move expires August 14, 1903.'^ Then he tells them that a special train will leave Meridian on August 11, and if they wish to go they must be there at that time. Now, that was printed on July 27, 1903. The Choctaws live scat- tered, some of them down on the Pearl River, some of them in Louisiana and some in Alabama. They are scattered over a vast section in the State of Mississippi, although most of them in a radius of six or seven counties. Now, as I say, there is not one out of a hundred — not one out of five hundred — of these Indians that can read or write. Very few of them are able to speak English, more than just enough to have their dealings with the merchants and planters that they work for. They do not live in towns or near post offices, but back in the country 10 or 12 miles away from a post office, and how could it be expected that these people who could not read nor write, and who had probably never received over three letters in their lives and had no particular occasion for going to the post office, should receive these letters and be able to read these notices in the 17 days— or, if you count the time they had to be in Meridian, 14 days— and in the interval after getting this notice, to read it and to dispose of all of their chattels and move themselves and their families, some of them two or three hundred miles, to the town of 42 ENROLLMENT IN THE FIVE CIVILIZED TEIBES. Meridian, ajid be able to move from Mississippi at the date stated. Now, that was the condition regarding some of these Indians, be- cause, as I sav, a great many of them had to be in Oklahoma by August 14, 1903. Mr. HuELEY. Did you say you would put that notice in the record? Mr. KicHARDsoN. Yes; I am going to put that in. Mr. Hurley. Because Mr. Cantwell denied that there Was any notice given, and we have some notices prior to this that we want to put in also. Mr. EiCHARDSON. Yes ; I am going to put this in. Mr. Post. How much longer will it take you, Mr. Eichardson? Mr. Eichardson. I have several other points that I would like to cover. Mr. Carter. We can hear your conclusions at our next meeting, if you prefer. _ Mr. Eichardson. Well, I believe I would prefer that. Mr. Post. There is just one other question that I would like to ask you. Your argument has been very interesting. Now your position, boiled down, is this: That in 1830 all of the Choctaw Indians were wards of the Nation, and that by reason of the provisions relating to citizenship in article 14 of the treaty, that that constitutes a covenant, a binding covenant, which runs with the transaction and embraces not only those upon the public property of the Choctaw Nation, but upon the nation itself; that the binding covenant can not be gotten rid of without the consent of the United States and the Choctaw Nation : and the United States has never consented to abandon that covenant? Mr. Eichardson. Yes, that has never been modified. That is to say, that these Indians were given the privilege of citizenship if they remained in Mississippi and complied with article 14 of the treaty: that the Choctaw Nation recognized the retained privilege in the Mississippi Choctaws by giving them their full interest in the Choctaw property whenever they came; that the United States recognized it not only in the payment of moneys due .to them to the Choctaw Nation, but in legislation in recent years, when in 1898 it provided for the enrollment of those Indians, or a number of them, that were entitled under the fourteenth article. In the act of May 30, 1900, it provided for their recognition, and required them to remove before the rolls closed. In 1902, the act bf July 1 of that year, it provider! for their removal within six months, and recognized again their rights. Mr. Carter. That was the supplemental agreement with the Choc- taws and Chickasaws. Mr. Eichardson. Yes. Mr. Bond. Each of these acts provide that they should remove before they would be recognized, and it was necessary for them to show a hona fide residence in the Choctaw Nation West before they would he entitled to citizenship rights therein. Mr. Eichardson. No; as I see it, all of that legislation, as well as the rtliev facts surrounding it, provides and recognizes the fact that these people are not to have a beneficial interest in that property, that they are not to enjoy the benefit of the property without re- moval. That, I think, is th^ full answer. BNEOLLMENT IN THE FIVE CIVILIZED TEIBES. 43 Mr. Bond. They must remove in order to enjoy the full rights of citizenship. Mr. EicHAEDsoN., That is because when that treaty was signed, and during the greater part of this period, most of the property of the Indian was, such that he could not enjoy it unless he lived on it. Mr. Hurley. Did not the United States Government, and the Choctaw and Chickasaw Nations, in the treaty of 1902 waive the necessity of proving rights, under the fourteenth article, in order to obtain enrollment, it being reported by the Dawes Commission that there was not an Indian in Mississippi who was able to prove the right to enrollment under the fourteenth article of the treaty of 1830 ; and did not the Choctaw Nation give them their interest as a gratuity and not as a right, because they could not prove their right ? Is that not a matter of record in the report of the commission to Congress? Mr. EiCHAEDSON. No; I think that is distorting the fact of what was done. Mr. HuKLEY. Let me make reference there to the report of the Commission to the Five Civilized Tribes March 10, 1899. This is a report to Congress from the commission. This report sustains my statement. Mr. KicHAEDSON. I would like to say in answer to that that the com- mission reported that the full-blood Indians, because of the fact that they did not preserve family names, and because of their ignorance and the fact they were not a class of people who preserved family traditions, were unable to trace themselves back to an ancestor who complied with the treaty of 1830. These facts, coupled with the acts of the Indian agents at that time, prevented proof and the com- mission said that in their judgment the fact that a person was a full- blood Indian, that he was living in Mississippi, that his family, as far as he could trace it, had lived in Mississippi, was sufficient proof that he had an ancestor entitled under the fourteenth article. When the act of July 1, 1902, was passed a' change of conditions had arisen. Among others, Mr. McMurray had, since this first report, been em- ; ployed as attorney for the Choctaw Nation. And the result of the ' activity of the Choctaw Nation in trying to keep these people off the rolls was that after the act of May 31, 1900, was passed and they were given the right to come in and receive their part, the rule of evidence, which was recommended in 1897 and was adopted in the report of March 10, 1899, which included some 1,923 names— that rule of evidence which was reported and was known as the full- blood rule of evidence— was reversed by the Interior Department, and it was held that the full-blood Indian was not entitled to any presumption, any more than anyone else. And in the supple- mental agreement between the Choctaws and Chickasaws and the United States, this very provision in the words in which it is written in section 41 of the act, known as the full-blood rule of evidence, which had been adopted by the Dawes Commission, was reaffirmed expressly as a rule of evidence. . . . /^, • ix Mr. HuELET. But that act gave the Mississippi Choctaws a right by law which they had never theretofore had. That is, that Choc- taws might move to and establish a residence in the Choctaw Na- tion and become citizens without the necessity of proving their right under the fourteenth article, and under that provision 1,634 44 ENEOLLMENT IN THE FIVE CIVILIZED TKIBES. Mississippi Choctaws were enrolled. Those who could not prove their ri"-ht were given the right as a gratuity to settle this question. Mr. Richardson. They were enrolled under this full-blood rule of evidence. , ,, t^- , ^ • j. Mr. Balltngee. I would like to ask Mr. Eichardson ]ust one question. Have you examined the bill now before this committee^ and commonly known as the Harrison bill ? Mr. Eichardson. Yes. , , .,i • •, Mr. Ballikger. May I ask you whether, under that bill, a single ' person could make the proof and secure enrollment? ■ Mr. Eichardson. You refer to the amendment? Mr. Ballinger. Yes. -n j r^ fsra Mr. Rtghardson. It expressly provides that, all identihed Choc-^ taws— ail?! I have testified that that was my interest in this matter-^*^^ it expressly provides that they shall be put on the rolls without any_ ^^ further proof. Mr. Ballinger. Aside from those that are identified, can any ., other person make proof? Mr. Eichardson. That deals with a matter in which I have no interest. I do not represent any mixed-blood claimants, and I would rather not answer the question. Mr. Carter. Now, Mr. Richardson, you may proceed at our next meeting. "We will adjourn subject to the call of the chair. Subcommittee op Committee on Indian Aitaies, House of Representatives, Tuesday, April H, 1914. The subcommittee met at 10.30 o'clock a. m., Hon. Charles D. Carter presiding. There were present before the subcommittee Hon. Bryan P. Harri- son, a Representative from the State of Mississippi; Mr. Redford Brnd. attorney for Chickasaw Nation; Mr. P. J. Hurley, attorney for the Choctaw iSTatinn ; and Mr. W. E. Richardson, representing vari- ous Mississippi Choctaws. Mr. Carter. The committee will come to order. I believe Mr. Richardson is to continue his statement this morning. STATEMENT OF ME. W. E. telCHARDSOW— Kesumed. Mr. Richardson. Mr. Chairman and gentlemen of the committee, when I concluded the remarks I was maldng the other day one question seemed to be of some considerable importance to the com- mittee, and I do not know that I made myself entirely clear upon that point. That was with reference to the question whether these Choctaw Indians had any vested rights as Choctaws in the tribal property, and I think that was because I had used that expression once or twice in the course of my remarks. Now, I desire to have the committee understand just what I meant by that expression, and that is this: That I concede the contention which is made by our opponents and which is suggested by a member of the committee that in tribal property Indians do not have vested rights, under de- cisions of the Supreme Court in a number of cases, but these deci- ENROLLMENT IN THE FIVE CIVILIZED TBIBES. 45 sions relate to matters which have arisen in the courts with regard to the control and disposition of tribal property, undivided prop- erty, and in the courts that is true, but when we come before Con- gress—when an Indian comes before Congress in regard to his right in the administration cf the estate which the law gives him a •part of — entitles him to a part of — then, as far as his dealings with the administrative body are concerned, he has a right to that prop- erty. That is to say, that a member now enrolled on the final rolls of citizpn&hip on the Choctaw and Chickasaw Nations has, of course, no vested right to the undivided tribal property, but before Con- gress — under the administration of this estate by Congress — he has a riglit which you may not term " vested,' but it is the right which is recognized and which will have to be recognized in the disposition of the property. -~: . Mr. Campbell. Eight on that subject, may I ask, do you regard the Choctaws and Chickasaws who are now enrolled within the territory and who are participating in the distribution of that prop- erty 3S having vested rights in it? Mr. KiCHAEDSON. I regard them as having this right, which you may term vested — it is not vested in the sense that he has come into possession of it — they have a right in the administration of that ■property to receive their just share, and I do not think that Con- gress, although it has the arbitrary power to deprive this person or that person of his interest — I do not think Congress has a right to deprive them of their just share, the share that will come to them after Congress, in the performance of its administrative functions, has determined eventually those to whom distribution should be madn. When the final settlement is made they have the right to receive the part that is justly theirs, and I do not think Congress ought arbitrarily to take members who are properly on the roll off of the roll. Mr. Campbell. Do you think Congress should arbitrarily take property that you concede rightfully belongs to these people and give it to somebody to whom it does not rightfully belong, as under- stood by the rules of law ? Mr. EicHARDSON. I think, they should in a case where the right is one that Congress could recognize and that they should diminish their share to the extent of recognizing those who have a rightful claim to it, although one which is not a legal claim in the eyes of the court. That is to say, no person not now on the rolls has a legal right. No court would recognize him as having such a right, but it is a right which becomes the duty of Congress to recognize. The matter of right, when you are dealing with this estate before Congress, is not the same as a matter of right which must be enforced in the words of the law in the courts. Mr. Caetee. You mean that he has a moral right? Mr. EicHARDSON. He has a moral right; yes. Congresj has ad- ministered this estate from the beginning up to the present time upon the theory that those morally entitled to it should receive it. ■ Mr Caetee. You mean that while he has no right enforceable m the courts, he has a right which Congress has no right to ignore ? . Mr. EiCHAKDSON. Yes; that is precisely what I mean. 1 hat is what Congress recognized in 1900, in the act of May 31, 1901, and the act of 1902 supplementing that, under which 1,643 Mississippi 46 ENROLLMENT IN THE FIVE CIVILIZEO TRIBES. Ohoctaws were placed on the rolls. These Indians before the pm- sage of those acts occupied exactly the same status that our claira- an"ts do now. They claimed the right under the fourteenth article, but Congress did not recognize that, and thereforie the courts need not recognize it; but when they secured legislation by which they got their names on the final roll as Choctaws, then they occupied tJie same status in the courts as members in the Choctaw Nation. Mr. Bond. If I understand you correctly, your argument at the last meeting was this: Under the treaty of 1820 title was vested in the Choctaw Tribe of Indians, and title did not vest by the treaty of 1830; therefore the Mississippi Choctaws east had a vested inter- est in the Choctaw lands west, by reason of the treaty of 1820. Was that your contention '( Mr. RicirAEDsON. That is substantially correct. That is to say, that the Choctaw Tribe or Nation acquired the title, and the same rights that they now have to the nation west, under the treaty of 1820; and the treaty of 1830, under which separation of the nation occurred, was merely confirmatory of the grant made in 1820. Mr. HuitLEY. But your argument here to-day is to the effect that they have no vested right, but merely a moral right that you are asking Congress to recognize. Your argument the other day here was to the effect that they had a vested right under the treaty of 1820. Mr. Richardson. Well, now, I said that they had no vested right which could be recognized by the courts under any of these treaties. A.S a matter of fact, the Choctaws who moved in 1831 and 1832 and who are now members of the Choctaw Nation have no vested tights which the courts would recognize. Mr: Htjelet. They moved under the treaty of September 27, 1830; but as I understood you statement the other day, it was to the effect that title vested under the treaty of 1820, and you were then argu- ing that your clients, who are said to be fourteenth-article claimants under the treaty of 1830, had vested rights in that property under the treaty of 1820. Do you still adhere to that line of argument, or do you now change it to a question of moral right? Mr. EicHAEDsoN. No; I recall that what I said was this, that under the treaty of 1830 — I was in the first place trying to show the committee what was meant by the right of the Choctaw citizen which the fourteenth article of the treaty of 1830 said that those Choctaws who remained shpuld not forfeit. Now, the right of the Choctaws at that time was a proper right, in so far as the rights of to-day are property rights. The property which was owned in 1830 when the treaty was made was the same property that the nation had owned for 10 years; that was the right to a country conveyed to them by the treaty of 1820 by certain boundaries, and what is known as the Choctaw and Chickasaw Nations. Now, they had enjoyed that estate for 10 years — enjoyed it in so far as it was possible to enjoy and estate which they had not actually taken into possession. They had owned this estate for 10 years, and it had been conveyed to them because of the cession by them of a large part of their reservation in Mississippi. When the treaty of 1830 was made the United States had taken the position that it could not protect these Indians under the treaty from the laws of the State of Mississippi; that is to say, that their In- ENEOLLMBNT IN THE FIVE CIVILIZED TRIBES. 47 ^n citizenship did not prevent the State of Mossissippi from ad- ministering Its laws over them regardless of whether it was right or wrong. 1 hat was the actual position of those people at the time of the treaty ot 1830, and the reservation in that treaty of the privilege ot Choctaw citizenship— upon the sole condition that if they removed they could not receive any of the annuity provided under that treaty— that reservation could only have meant that they reserved a right m this property, because that property right was all that the privilege of Choctaw citizenship amounted to at that time. Mr. Campbell. That was under the treaty of 1820? Mr. EiCHAEDSON. Under the treaty of 1830 that they reserved the right of citizenship ; that they reserved the right of Choctaw citizen- ship.. They had the property at that time. The'only propertv that they had at the time of the treaty of 1330 west of the MississipfDi was that which they had bought and paid for years before. Mr. Bond. Do you still base your claim to citizenship on the treaty of 1820? ^ ^ Mr. EiCHARDsoN. I never based the right of citizenship on the treaty of 1820. It is based on the treaty of 1830, article 14. The right of citizenship which these people that remained in Mississippi have had its start in this treaty of 1820, dealing with their property rights, which they had at the time the treay of 1830 was made. Mr. HjjRLET. Then, do you admit that no Indian who resides out of the Choctaw Nation is entitled to citizenship, with the privileges of Choctaw citizenship, unless he can show a right under the fourteenth article of the treaty of 1830? Mr. KicHARDSON. Mr. Hurley, I do not think it is necessary for me to admit- that question specifically. I am here representing a class of people who claim under the fourteenth article. Mr. Htteley. We can not meet issues unless you make them, and if you are claiming under the fourteenth article we would like to have you say you are. We would like to laiow what you are claiming. Mr. Post. Is there any treaty subsequent to 1830 relating to citi- zenship ? Mr. Richardson. No ; that is the only treaty which deals with this subject. Mr. Campbell. And the rights for which you contend hinge around the fourteenth article of that treaty ? Mr. EicHARDsoN. That is the case. Now, there may be one or two cases which will come up later in these hearing that will deal with the nineteenth article — in fact, there is one case I Imow of — but I am now speaking on behalf of claimants under the fourteenth article, so I do not think that I ought to be asked to go into the question of those others. Mr. Bond. Do you contend that the fourteenth article could not be repealed by subsequent acts of Congress ? Mr. EiCHAEDSON. I think that Congress has plenary power over Indian affairs. Mr. Bond. Do you think that Congress repealed the fourteenth article by the act of 1900, when it provided that Mississippi Choctaws must establish a bona fide residence within the confines of the tribal pronertv before they were entitled to citizenship ? Mr. EiCHAEDSON. I do not think they repealed that article. 48 ENEOLLMENT IN THE FIVE CIVILIZED TEIBES. Mr. Bond. 'Do you think they repealed it in 1902, when they p|p- vided that they must remove to and establish a bona fide residence. in the tribal territory before they were entitled to tribal citizenship ? Mr. Richardson. No; I do net think they repealed it at all. They provided only the means of securing the rights to participate under that article. Mr. Htjelet. In the act of 1906, when Congress provided that the rolls of citizenship of that nation should be closed on March 4, 1907, •do you think that had 'any effect on the fourteenth article claimants' rights ? Mr. Richardson. I think that so far as dealing with the courts in a matter of law that that closed the rolls, but these people at that time were protesting against that action as a violation of their rights, and I do not think their rights were foreclosed by that act. Mr. Post. Do you think their rights should be foreclosed some time ? Mr. Richardson. I think it is the duty of Congress to close those rights some time. I think it is the duty of Congress before it fore- closes those rights to give those people a fair chance to get on the Tolls, and that is what I contend has not been done. Mr. Hurley. Do you think that 77 years, from the time the treaty was made until the rolls were closed, was not sufficient time to give that class of people an opportunity to establish their rights.? It was 77 years from 1830 to 1907, and your contention is that that was not sufficient time? Mr. Richardson. I would like to answer that question, because it deals with one matter which I. think is of the greatest importance in this case. Here is a people with whom the Government had dealt with by treaty, and the treaty is not superior to an act of Congress. An act of Congress can repeal a treaty, even with a foreign nation, hut at the same time there is no form of law which ought to receive greater respect from Congress and the United States and the people generally of the States, than a treaty made by the United States. Under this treaty with these people, which was made in this particu- lar form, because some of these people did not want to move, but wanted to remain in Mississippi, yet wanted to reserve their Choctaw citizenship at the same time — under that treaty that right was ex- pressly granted to those people, and it was said that they might do that. Now the contention is made that they have had 77 years to remove, and have not done so, therefore their rights should be for- feited. I say that they remained there during this 77 years under an express guaranty of the treaty that they were entitled to remain and need not remove, and, therefore, it is not to be regarded that they have slept upon their rights during this time. They have stood upon their rights. Thev have said, " We are entitled to'remain here as long as we please. We have been given that right by treaty, and if we desire to move now, or 10 years from now, we can move at any time we please to the Choctaw Nation West, and have the same rights of citizenship that any Choctaws have." Mr. Carter. Is that your contention as to what the word "re- move" in the treaty of 1830 means? Mr. Richardson. I do not see how there could be any doubt of it. That has been the construction of that treaty from the time it was made until the winding up of the affairs of the Choctaw Nation ENEOLLMENT IN THE FIVE CIVILIZED TEIBES. 49 through the Dawes Commission. That was the construction that the CEoctaws gave it in the resolution of their council, and I think that if the facts were inquired into they will show that a very large number of the Choctaw Nation to-day are people who came there under the provision of the treaty, because the reports of the depart- ment show that over 7,000 of the Choctaws in Mississippi did not move within the one year and two year clauses provided for removal ; that they remained in Mississippi and moved from 1830 to 1845. A great many of them remained ; about 2,500 of them in 1845. Mr. Campbell. What was the last migration of Indians from Mississippi to the Choctaw territory "West? Mr. EiCHAEDSON. The two principal migrations occurred in 1831 and 1832. Now, for a period of some 15 years from that time the instrumentalities of the Government were engaged in removing these Choctaws ; and as I called to the attention of the committee the other day, the agent for the Choctaws "West was considering and dealing with this question of removal, and as late as 1843 was entitling his office stationery " Choctaw Nation, "West," and was considering and providing for, and urging means of removing the balance of the Choctaws in Mississippi. That was as late as 1843.. At that time there were some 2,500 Choctaws in Mississippi, and during various years until about 1891, these people kept moving in families and parties each year — almost every year — and they were always accorded their rights of citizenship. Mr. Carter. I would like to ask you this, Mr. Richardson: "Was there any benefit that a Choctaw could derive from the estate in Oklahoma if he remained in Mississippi, prior to the year 1900, when allotment was begun? Mr. Richardson. No; that could not be, in the natural order of things, because the estate of Oklahoma was one which it was pro- vided should be held in common forever, and like other Indian es- tates of that character, the only benefit derived from it could be by occupancy. Mr. Carter. The only way that a man could have secured any benefits under the treaty of 1830, at the time it was made, was by removal to the Indian territory? Mr. Richardson. Yes; that is the case. Now, the theory with which I have always regarded the rights of these people is that they had the right at any time under the provisions of that treaty to re- move — either they or their children — to this estate, and when re- moved, to enjoy the same benefits of that estate as a person who removed at the time the treaty was signed. Now what has been done is this : That although they have been given this right by these treaties, as I construe it, and as the treaty was construed by the United States and the Choctaw Nation up to the time the Dawes Commission was created— although they had been recognized as hav- ing that right, the Government in dealing with the Choctaws west, by its agreement with them, ratified by Congress, put a stop to that right. That is to say, they adopted such legislation _ as would pre- vent any Choctaw coming from Mississippi and taking the benefit of that land; and they forfeited in that way the contingent estate which these Indians had. Now, the question, it seems to me, the practical question which Congress must consider in that regard is, 64969—15 4 50 ENEOLLMBNT IN THE FIVE CIVILIZED TBIBBS. whether in doing that they gave these people in Mississippi a fair opportunity to take advantage of the provisions put in the law at that time. They could secure their rights if they wanted, and if they did not want them they could forfeit them. Mr. Post. Wheii did Congress create this commission under which these Indians were given the right to remove to Oklahoma and be enrolled ? Mr. EiCHARDSON. I think I will have to answer that question with a little explanation, because that deals with a number of different acts of Congress. In the acts down to 1898 there was nothing very definite in regard to the Mississippi Choctaws. Their status was problematical. Under the act of 1896, which provided for the filing of applications for enrollment of citizenship within 90 days, persons claiming the right to enrollment as Mississippi Choctaws — those were the cases with which we were dealing at our last hearing, and in the case of E. J. Horn, the Dawes Commission held that the Mississippi Choctaws who had removed prior to making their application, were entitled to be enrolled under the fourteenth article of the treaty of 1830. They held that as to those who had not removed at the time of making their applications, they were not entitled t6 be enrolled, be- cause the matter of removal was a condition precedent to their right becoming fixed. From that decision— or fronii those decisions, be- cause there were a large number of individual claimants — appeals were taken to the courts, with the result that the courts divided on the question. Judge Clayton deciding to uphold the commission, and Judge Townsend reversing the commission. Then, in 1897, Congress, by resolution, asked the Dawes Commission to report upon the rights of the Mississippi Choctaws. Up to that time there had been no legislation having them ia view. They had come in under the general provisions of the act of 1896, not having been named specifically. The Dawes Commis- sion, m answer to this resolution, reported, and its report is in the documents here. It is very lengthy, but I might say this, that they held, confirming their other decisions, that these Choctaws, in their judgment, until they removed did not acquire the right, but they said in concluding their report, that this question was one of con- siderable importance and one which in their judgment should be decided by the courts, and they then recommended in closing the report that Congress by legislation refer this matter to the Court of Claims for decision. That action was not taken, but in 1898, in the Curtis Act — which is the first act which specifically relates to or contains the name " Mississippi Choctaw " — that provided in section 21 for the Dawes Commission" to make a roll of the Choctaws in Mississippi. It authorized them to identify persons entitled under the fourteenth article, and they put another provision in there which provided that the sections requiring that residence in the Choctaw Nation should not mitigate against the claims of the Mississippi Choctaws. Under section 21 of the Curtis Act, the Dawes Commission, in 1899— in 1898 or 1899— established for a short time a branch in the State of Mississippi which was in charge of Commissioner McKen- non. The result of his work there in identifying Mississippi Choc- taws under that section (section 21 of the Curtis Act) was this— that he took testimony and went thoroughly into the general con- ENKOLLMENT IN THE PIVB CIVILIZED TRIBES. 61 ditions of the Choctaws in Mississippi and reported to the other members of the Dawes Commission the evidence, etc., that he had taken, with the result that they made a report signed by all the members of the commission dated March 10, 1899, and with it in- cluded a schedule of 1,923 names of persons that they found entitled under section 21 of the Curtis Act, identified as fourteenth article claimants. Mr. Hurley. As a matter of fact, under the report of March 10, 1899, the commission states that there were no Indians in Mississippi who could prove their rights under the fourteenth article, and in order to give them any iDenefits the necessity of proof must be waived by the Choctaw and Chickasaw Nations. Is that not con- tained in the report of the commission? Mr. Richardson. No, that is not the report of 1899. Mr. Hurley. I have it here, and I will read the paragraph of it if you care to have me do so. Mr. Richardson. I am going to read that, Mr. Hurley, and I would prefer to have you do so, if you care to do so, in the cot^rse of your own argument. The Dawes Commission, in its report of March 10, 1899, attachsd a schedule, and it makes a list of the names of these 1,923 Indians, and that is the schedule which I have here now. It contains the "nroUment number, age, sex, degree of blood, and the post-office address of these 1,923 people, and confirms the statement of the com- mission with respect to these people, which is as follows : That of these 1,923 people there are two families, and probably a few other persons, who are mixed bloods, while all the others are full-blood Choctaw Indians. Now, this commission reports upon its general investigation of these Indians that it has examined the testimony taken by the com- missioners in 1843 and their history in detail from which it finds this fact, that of the Choctaws remaining in Mississippi the great body of them remained under the fourteenth article. The nineteenth article Indians removed, but it specifically finds the families, from the testimony, of Indians who took under the nineteenth article who removed and came back to Mississippi. These people thai they found claiming under the fourteenth article would at this time have something like 32 ancestors who were in being at the time that treaty was signed, and they state that the fact tiiat there were only three families of Indians who came back (nineteenth ar- ticle Indians who came back), and that no other movement of lu- dians from Oklahoma back to Mississippi has occurred, made it, in their judgment, a presumptive rule of evidence that members who are now living in Mississippi, descendent of the origin;il Clioctaws under the treaty of 1830, who could show that their family had been living in Mississippi, that he must have been a descendent of one of those members who are claimants under the fourteenth article of the treaty of 1830. So they found, after a long review of tlie facts, that it was proper to regard the rule of evidence as established by .these facts, that the present full bloods living in Mississippi were descendants of fourteenth article Indians. Among the reasons which they assigned in defense of this rule was this: That the Choctaw Indians, or full bloods, who now live in 5^ ENEOLLMENT IN THE FIVE CIVILIZBD TRIBES. Mississippi are people who are uneducated. They have in a great .many cases retained their Indian names without having any definite family name. That is to say, the father will have one name and the son will have a different name, and there is no family name by which he can trace an ancestor back beyond his own father and mother — unless he is fortunate enough to have some old member of the family there to testify — and they said it was a matter of utter impossibility for those people, without family names, with, their degree of in- telligence, and with that disadvantage, to trace back their ancestry in any case; so that, in their judgment, the mixed blood should be required to supply specific evidence of their descent, but these full bloods should not. Now, that was not, in their judgment, the giving of any gratuity to these full bloods, but was a rule of evidence which, as a matter of law, the conmiission recognize, excluding any possibility, within any reasonable degree of error, and in its opinion was evidence satis- factory to them that these people were descendants of the fourteenth article Indians. Now, that report was made March 10, 1899, and the question then came before Congress, what was to be done with these people. Mr. Campbell. Did that report by the commissioners impose any duties upon these Indians in order to bring them within the rights of Choctaws in Oklahoma? Mr. Richardson. No ; not in the slightest degree. Mr. Hurley. Do you mean to say it did not even require them to live there? Mr. Richardson. No. This report of the commission was made under section 21 of the Curtis Act. That act had reserved the de- termination of what should be the final disposition of the rights of these people, and merely authorized the commission to go to Missis- sippi and make a roll of the people entitled imder the fourteenth article ; and they were discharging their functions under that particu- lar section, which was limited to their making an enrollment of these people so entitled. When they submitted this report, it was trans- mitted to the Secretary of the Interior and to Congress and the question then came before Congress as to what shouLd be done with these people after they had been identified ; what right should they -have ? That was answered by the act of Congress May 31, 1900. In that act Congress provided that any Mississippi Choctaw, duly identified — that referred to identification under the Curtis Act, be- cajise that was the only authority to identify them — ^might remove to the Choctaw-Chickasaw Nation before the final closing of the roU and enjoy the same privileges as other Choctaws. Now, the passage of that act of May 31, 1900, resulted in this: That the Dawes Commission immediately endeavored to withdraw this roll. They wrote to the Secretary and wrote to the Conmiis- sioner of Indian Affairs asking leave to withdraw this roll, but the commissioner recommended to the Secretary that their request be not granted. The request, therefore, was refused by the Secretary and a copy only of the roll was returned. They then endeavored to withdraw it on the ground that there were some five or six hundred other full-blood Indians living in Mississippi, and they wanted to make further investigation. That was not granted. The commis- sion thereupon went to the State of Mississippi. Now, these people, BNEOLLMENT IN THE FIVE CIVILIZED TRIBES. 53 it ■^ill be recalled, had been finally indentified, as far as identification under that act was concerned, and provision had been made for the granting of rights to those who had been identified. Mr. Post. This is 1,923? Mr. EiCHAEDsoN. Yes ; the McKennon roll. The commission went back to Mississippi after they had been refused the privilege of withdrawing their report- of March 10, 1899; and in the month of December, 1900, they endeavored to hold some hearings at Hatties- burg, Miss., but by reason of inability to secure a proper interpreter and some other reasons that are immaterial, they were forced to aban- don the hearings at that time; but within a month or two they re- commenced the hearings in Mississippi, and required these people, who had been identified at their previous hearing, to again appear befox-e them and submit their evidence of their right to identifica- tion, as well as hearing applications, of course, for identification of the other Indians that they had not considered on the first roll. In the spring of 1901 and all through the summer of 1901 they con- tinued these hearings in the State of Mississippi. I have gone over a great many of these cases — I have some of the testimony here now — and the usual form was to ask these Indians certain questions as to who were their father and mother, and whether their ancestors attempted to comply with article 14, and what he did, and who their ancestor was at that time. I have not seen any of these full-blood cases where they loiew who their ances- tor was who was living at that time. I have seen a number of them where they did not even Iniow the name of their father and did not know the names of any of their grandparents. The commission con- tinued these hearings, and insisted upon these Indians who had been identified reappearing and resubmitting their cases for identifica- tion after the secretary had refused to permit them to withdraw the rolls. At that time Senator Owen was one of the principal at- torneys for these claimants, and he advised his clients and those associated with him — and they, after conference, advised their client&-7-not to reappear (those who had been identified) ; that they had been in touch with the matter at this end and knew the atti- tude of the Secretary, and they advised their clients not to reappear for identification, and a great many of them followed that advice. Mr. Campbell. Was that the contract that was had with a man by the name of Arnold ? Mr. EiCHARDSox. Arnold was interested in the same matter at the same time. Mr. Campbell. With Senator Owen? It was Wmston & Arnold, was it not ? , i • i. j.i, Mr. EiCHAEDSON. They were engaged m the same busmess at the same time, but not under any contract between them. Mr. Carter. I think this man Arnold was not workmg m conjunc- tion with Senator Owen, but he was an interyenor. ^ ^ .. Mr EiCHAKDSON. Now, the Dawes commission in its reports to the Interior Department had criticized Senator Owen and criticized Mr. Winton for their attitude and for their advice, and the reports ot the officials in charge of that branch of the commission show that num- bers of these full-blood Indians would come into the commission and bring some child born subsequent to the former enrollment and 54 EN"ROLLMENT IN THE FIVE CIVILIZED TEIBBS. present the claim of that child to the commission, but the parent would refuse to present their own claims; and members who had presented their claims in 1899 and were on the roll would come in and present new cases, but would refuse to present old cases, which the commission knew and so reported to the department, and the reports are a part of the official records. Therefore, there were people on this roll — full-blood Choctaws, and entitled under the laws which I will discuss later — who were on that McKennon roll and not on any other roll, and who had been known to the commis- sion throughout its whole proceeding. Now, here is what followed. As a result of these hearings in 1901 the very fact which the com- mission had reported at the outset had developed, that although there was no doubt that these Indians, the full bloods, were entitled under the fouteenth article and that they had ancestors who claimed under the fourteenth article they could not prove that fact, except under this rule of evidence Avhich had been adopted by the commission in 1899. In that state of affairs, the department having withheld the approval of the McKennon roll — they had not disapproved it — these people through their counsel came before Congress for further legis- lation, which resulted in the act of 1902, section 41, and one or two following sections of that act. Mr. Carter. That is the act of July 1, 1902? Mr. Richardson. Yes; which is known as the supplemental agreement. Mr. Carter. It was the agreement which was entered into between the Choctaws and Chickasaws and the Federal Government ? Mr. EiOHARDSON. Yes; and these sections which I refer to were written into the act after it had been brought before Congress for approval. In these sections Congress did this : It provided for the ratification of this full-blood rule of evidence as it had been origi- nally decided on by the commission ; it provided that persons entitled under the fourteenth article should submit proof, etc. ; and then as to full bloods, it provided that the fact that a person was full blood and had lived in Mississippi and fulfilled the requirements of thjs full- blood rule of evidence, should be held entitled under the fourteenth article, and that this should be a rule of evidence, expressly putting it on that basis. Now, that, of course, settled any question in the department as to the full bloods and the full-blood rule of evidence, with the result that the department considered the reports made by the Dawes Commission as the result of these hearings — these reports subsequent to the report of 1899 — and as soon as this act was passed the commission commenced submitting, reports to the department of the cases in which it had conducted hearings in 1901. They sub- mitted reports rn the various cases, aad where they found as matter of fact that a Choctaw was a full blood he was identified as a four- teenth-article Indian. Now, these reports came in through several years, but as most of the testimony had been taken in 1901— some of it in 1900— as soon as this act was passed, they Avere practically able to close up these re- ports, and we find that from 2,000 to about 2,600 Choctaws were finally enrolled under this act of 1902. I want to deal with those who were identified on these later rolls, but I want to finish the McKennon roll first. A statement of the history of this roll is this, that notwithstanding that the department ENROLLMENT IN THE FIVE CIVILIZED TEIBES. 55 knew and the commission knew that there were Indians on that roll who had refused to resubmit their cases in 1900 and 1901 for ex- amination and submit new testimony — there were 529 of those In- dians who had refused — ^nothing was said about those cases for a period of eight years. The department was acting on the cases com- mg up, but there was no action on the McKennon roll. Mr. Campbell. Do you know how many of the 1,923 on the Mc- Kennon roll went before the Dawes Commission and obtained their rights ? Mr. EiCHAKDSON. Yes ; just about 1,100. I have those figures here — all except 929. There were 929 McKennon roll Indians who did not resubmit their cases. Mr. Cakteh. How many were there on the McKennon roll ? Mr. Richardson. 1,923. Mr. Carter. Were all the Mississippi Choctaws that were enrolled on the McKennon roll ? Mr. Richardson. No. Mr. Carter. A great many were enrolled who were not on the McKennon roll ? Mr. Richardson. Yes. Now, a few days before the final closing of the rolls there was presented to the department an inquiry as to what should be done with the McKennon roll, and that resulted in this, that I think the day before the final closing of the roll the Commis- sioner of Indian Affairs sent the McKennon roll to the Secretary of the Interior with the recommendation that this roll be disapproved, "for the purpose of disposing of these cases, so that no further trouble might arise regarding them." Now, here were 929 people who had been finally identified on that roll who had refused to re- submit their cases, on the advice of their attorney that it was not proper for the commission to reexamine their cases, and that the Secretary had refused to allow the commission to do it, which was the fact, but notwithstanding that, and the fact that these people were full-blood Indians and clearly entitled under the act of July 1, 1902, because the McKennon roll was made up on the same lines provided for in the act of July 1, 1902, under the full-blood rule of evidence, notwithstanding that fact, which was known, and that these people were in that condition, the Secretary, with the avowed purpose of putting an end to their claims, disapproved the McKennon roll. Mr. Bond. Didn't the McKennon roll Indians refuse to remove to the Indian Territory and establish a residence and were therefore denied the rights of tribal citizenship. Mr. Richardson. They never had an opportunity to do it. Mr. Bond. Did they not have an opportunity from the time the roll was made up in 1898 ? Mr. Richardson. No; because the secretary m 1899 held that be- fore identification was complete they should again go before the commission, and the question came up whether the action ot the commission was final until approved by the Secretary. The Secre- tary, in a ruling of considerable length, said that it was necessary for him to approve their identification before it was final. Now the act of July 1, 1902, provided that these people should re- move within six months after their identification, so that none of these McKennon roll Indians who may have removed would ever have gotten on the final roll. 56 ENROLLMENT IN TH^ FIVE CIVILIZED TKIBES. Mr. Carter. Some of them did. Mr. Richardson. They are not on the final rolls, because their identification was never completed on the records as the department construed it. Mr. Carter. Now let me get you straight. You mean that these people had to remove within six months after identification, no mat- ter whether they had been identified prior to the passage of the act of July 1, 1902? Mr. Richardson. There were no people identified prior to that time. Mr. Carter. When were those on the McKennon roll identified? Mr. Richardson. They never were identified within the meaning of the law as construed by the department. That is to say, this commission identified them, but when it reported to the Secretary it submitted the question, whether under the act the identification was complete, or whether it was necessary for the Secretary to ap- prove the identification. The Secretary, in an opinion, held that it was necessary for him to approve the act of the commission before these people were identified, and he expressly stated that he with- held action on the McKennon roll at that time, but would take ac- tion when the matter of the final closing of the rolls came before him, and he would act on this roll in connection with the other roll when the entire matter was before him. Mr. Hurley. You have laid great stress on the report of the commission of March 10, 1899, and said you would read it, but you have not read it. I think it would clear up the situation that you are presenting now if you will read that report. Mr. Richardson. I do not think there is anything in that report that I have not explained. I have told the committee that the report was based on the full-blood rule of evidence. That is the only thing in that report. Mr. Hurley (reading) : The coinmission therefore finds it Impossible to trace the full-blood Choctaws now residing in the State of Mississippi, bearing an English name, with any degree of certainty to his ancestors bearing Indian names, and to establish the fact that such ancestor performed the duty of certifying to the United States agent within the limited period their intention and desire to remain and become citizens of the State of Mississippi. Then the commission says it believes it to be their duty to report the names of all full-blood Indians who might appear before it for identification as Mississippi Choctaws and — it accordingly makes this report, having taken the names and identification of each person and prepared a schedule of them from the data obtained by the commission recently within said State, which schedule accompanies this re- port and is a part hereof; and further, the commission finds it is impossible to .trace decendants now bearing English names to ancestors bearing Indian names, upon whom was imposed the duty of complying with the treaty at that time, and to get persons now living who have fulfilled the requirements of the provisions of article 14 of the treaty. In other words, the commission found, in 1899, that there were no Indians in Mississippi who could prove their right under the 14th article, and anything that was given them was a gratuity, and to settle this question the Choctaw Nation finally compromised by giving the right to enrollment as a gratuity to certain citizens who were then specified who might remove to and become citizens of ENBOLLMENT IN THE FIVE CIVILIZED TRIBES. 57 the nation. It was a compromise arrangement by the Choctaw and Chickasaw Nations to settle this very question. Mr. Richardson. Do you want to ask some question, or is this an argument ? Mr. Hurley. You said that you were going to read that in the record, and you did not. I did not think you were placing a proper construction upon it. Mr. Richardson. If the committee please, I think it is very clear, from reading this report, just what they did. They stated that this roll which they reported discharged their duty under the law, a duty under the law requiring them to identify these persons as the descendants of fourteenth article claimants. Mr. Hurley. I would like to ask you a question. How many of these claimants do you represent? Mr. Richardson. I represent about 1,200 claimants. I want to say that the claimants that I represent are full-blood Indians living in Mississippi and some few in Alabama or in Louisiana, but they are all full-blood Indians; Indians who, with the exception possibly of 100 who escaped identification, were identified on the McKennon roll, among the 1,923, or were identified at the hearings conducted in 1901. Now, the commission knew — whether this be a gratuity or not, which I do not admit — the commission laiew, and the department knew, that these Indians on the McKennon roll satisfied all the requirements of the act of July 1, 1902. This was after the depart- ment had held up their cases for three years and had not disposed of this roll finally one way or the other. The act of July 1, 1902, was based on the same motive which actuated the Dawes Commission in adopting the full-blood rule of evidence, and expressly adopted the same rule of evidence, so that every man on this roll of 1899, with the exception of two families that are named, was entitled to this identification. While they dis- posed of these cases, pursuant to the law of July 1, 1902, where the people had resubmitted their applications, they did not examine the other cases — they did not give them any further consideration until two days before the time for enrollment was terminated by law — March 4, 1907, and then they disapproved this roll in its entirety. In the brief that we have prepared in these cases I have quoted from a brief presented by Senator Owen in the Court of Claims on the question of the allowance of fees against the Indians identified and enrolled, and not parties now to this claim, but who were members of the same families identified at the same time. He refers to this act of the department in disapproving the McKen- non roll in the following language: It will thus be seen that there was a secret underhanded opposition to the Mississippi Choctaws, because it must be remembered that this roll of identifi- cation was made by the Dawes Commission .March 10, 1899, and submitted "bv report to the Secretary of the Interior," was pigeonholed for eight years and then disappeared without notice. This policy was ruinous for many of the Mississippi Choctaws, full-blood Indians, relied upon the Interior Depart- ment to advise them when their identification was complete, so that they might move to the Choctaw country with safety. The Interior Department held those Identified on this roll of 1899 in ignorance and uncertainty until it was too late to move, and then disapproved the roll. The gross injustice of this pro- cedure is manifest, and no pretense can be made that, the controlling officials 58 ENROLLMENT IN THE FIVB CIVILIZED TRIBES. of the Interior Department really entertained any genuine sympathy with the enrollment of any poor full-blod Mississippi Choctaws. Farther on he says: The report declares that the Mississippi Choctaws were poor, ignorant, and helpless. This report in behalf of the full-blood Mississippi Choctaws, signed and submitted by the Dawes Commission, was disapproved eigst years later by Mr. Secretary Hitchcock on March 4, 1907, without notice or warning, so that no person upon this roll ever knew for eight years whether he was so far identi- fied as to be entitled to remove as an identified Mississippi Choctaw, and finally the entire schedule was rejected without notice. That is an extract from the brief filed in support of the claim of Senator Owen in the Court of Claims, April 20, 1913. ■ Mr. Carter. Whose brief is it? Mr. EicHARDsoN. W. W. Scott. Mr. Carter. What date was it, and what case? Mr. EiCHAEDsoN. April 20, 1913, in the Windon case. Mr. Hurley. May I ask you a question there? Mr. EiciiAEDSON. Yes. , Mr. Hurley. Did you not answer that statement completely a few minutes ago when you said that when the commission went back, to Mississippi to identify these Mississippi Choctaws, that these at- torneys now filing this brief had kept the Indians away from the Government officials? You made the statement awhile ago, and these are the people you are talking about ? Mr. Richardson. That is not absolutely true. The attorneys who filed that brief, their clients having been finally identified, as far as action by the commission was concerned — the Secretary of the In- terior having refused the commission the privilege of withdrawing that report and identification — conceiving it to be a legal right of their clients to refuse to submit their cases for reexamination, they so advised these people. Mr. Hurley. Are you arguing now that the McKennon roll was a complete identification ? I understood you to say awhile ago that it was not, and that there was no complete identification until after the act of 1902. _ Mr. Richardson. It was a complete identification of the Missis- sippi Choctaws on that roll, in so far as the functions of the Dawes Commission were concerned. Mr. Hurley. And the Dawes Commission went back again to per- form what duty? Mr. Richardson. They went back, according to the official reports, for the purpose of hearing the claims of five or six hundred who were not on the McKennon roll. Mr. Hurley. And they did not reconsider the McKennon roll claimants at all? Mr. Richardson. They went there for that purpose, and with that express intention, and that was the only condition on which the secretary granted it. After they got there, without any authority from the secretary, they proceeded to insist on the Mcltennon roll Indians coming in again and establishing their identification. Mr. Hurley. And these attorneys kept these Indians away from them, and that is why the Indians were not reexamined by the com- mission. Mr. Richardson That is, at least in part. ENROLLMENT IN THE FIVE CIVILIZED TRIBES. 59 Mr. HuELE-r. And that is why they had no notice of what was done tor eight years, as you have stated? Not because the Gov- ernment was not trying to get to them, but because their attorneys kept them away from the Government officials; that is the condi- tion you have disclosed in your argument. Mr. EiCHARDsoN. That is the condition which some of these people undoubtedly were m, but I would not say that all these 929 received that advice. It may be that some of the were sick and could not come, or that others did not know the commission was coming back there ; but that was the result in some cases, that some of the Indians were so advised, and the records show that the department knew that. And I may say, further, that they were identified on the same evidence m 1899 which would have entitled them to identification imder the act of July 1, 1902. Mr. Hurley. But they were prevented from identifying them- selves by their attorneys? Mr. KicHARDsoN. No; they had identified themselves to the com- plete satisfaction of the commission and at the time the department held that that was sufficient. Mr. Harrison. And one of those attorneys was the United States Senator from Oklahoma, Senator Owen? Mr. EiCHARDSON. Yes, sir. Mr. Bond. What evidence have you, Mr. Eichardson, that Senator Owen ever notified any of said Indians not to appear before the commission ? Mr. EiCHARDSON. I will submit official letters from the Dawes Commission to the department showing that that is the fact. I will make that part of my statement. Now, if the committee please, I want to leave the matter of the McKennon roll, because I think that has been sufficiently explained, and I want to call the attention of the committee to this: That if any Indians need the guardianship and control of the Government, these Indians need it and have needed it for many years. In an investigation of their condition as late as 1908, under Commissioner Leupp of the Bureau of Indian Affairs, he deals with these people, and in his statement of their condition, to which I want to call particular attention, describes them in this way: Kacial feeling has been especially strong among those Choctaws" who re- mained in Mississippi. Tliey have not mixed in marriage with the negroes to as great an extent as the Indians who removed to Indian Territory, and the larger part still are full-hlood Choctaws. Many are unable to speak English language, and to find one who can read is a rarity. They have lived in small settlements, holding aloof from white men as much as possible, although em- ployed almost exclusively on the plantations, and in many respects, growing out of this social condition, they have retrograded even from the not very adranced condition of their people as it existed in 1830. Shunning the white men to so great a degree, they have lacked the opportunity of learning busi- ness methods and agricultural skill that has been enjoyed by the negroes who were formerly slaves, with the result that they are more undeveloped in busi- ness and productive capacity, have lived more poorly, and in the main have sunk to a lower level in every respect than the former slaves and their de- scendants. Then, in regard to their failure to remove, he says : Their conduct in that regard grew out of their Ignorance and their indisposi- tion through timidity to forsake that with which they were familiar and could endure, for new surroundings and new Industrial and social conditions, under 60 ENROLLMENT IN THE FIVE CIVILIZED TEIBES. whicli they feared they might not be able to succeed. They have no special claim on the Government, unless it be based on the ground that through the misconduct of the Government representatives they, or their ancestors, were deprived of the land in Mississippi to which they were entitled under the treaty, or because as Indians they have a natural right to the protection M the Gov- ernment. Throughout the last 50 years the office has periodically received petitions for the relief of those Choctaws, but nothing has ever been done, except the opportunity accorded them to go to the Choctaw Nation West. That is the report made by the Department of the Interior to the President of the United States on March 16, 1908, a copy of which was transmitted to Hon. A. M. Byrd, a Member of Congress, by President Eoosevelt on March 18, 1908. Mr. Byrd was a Member of Congress from Mississippi at that time. He is now dead. I have read these extracts because I want to impress the fact that I thinii is more clearly stated there possibly than in any other part of the records — although it is contained throughout the record — that these people, during the time their matters have been under consid- eration by the Government, have not been people who are any differ- ent or any more advanced that the other Indians with which the Government has dealt, but they have, if anything,, been entitled to receive greater consideration because of the fact that while they have lived in Mississippi during all this period, they have been peaceful and law abiding, but have been, as is shown in that report, deprived of schooling and deprived of every advantage that Indians and white people and negroes, and everyone that we recognize in this country, have received. Commissioner Leupp comments on the fact that these people hold themselves aloof from the negro schools, and they do not go to the white schools, the department understands, because the white schools will not permit them to do so. We will have then to consider the action of these people in the light of their condition, as indicated in these communications. In 1902 Congress, by the act of July 1 of that year, provided that those persons identified by the Dawes Commission as Mississippi Choctaws might remove within six months after identification to the Choctaw and Chickasaw country ; that they must make proof of their removal within six months after coming into that country ; that they must live there three years, and at the end of that time they must make proof of their residence there for three years, whereupon they become entitled to be allotted there as other Choctaws. There was nothing in that act which provided any means for accomplishing these things on the part of the Mississippi Choctaws. The committee must understand that those Indians were not living in any distinct locality in Mississippi. They were scattered principally over five or six different counties, but a great many of them had been living at a considerable distance from this section. Some of them Avere li^g in Alabama, some were living down in southern Louisiana, on the Pearl Eiver. Some four or five years ago the Bureau of Ethnology sent Prof. Bushnell down to study these Choctaws on Bayou La- combe, La., and he made a report on their condition and mode of' life, and that report is printed as Government document. I have a copy of it here now if the committee cares to see it. It shows the primitive conditions under which they people are living down there. ENROLLMENT IN THE FIVE CIVILIZED TRIBES. 61 in thatched huts, miles away from a post office or any other settle- ment. That was the condition of these people, and no means was pro- vided under this act of July 1, 1902, that would enable them to do these things which the act said they must do. No appropriation was made, no provision was made for any officer to help them, and the committee will recall that their cases had been tried, m so far as they were individually concerned more than a year before this act was passed. That is, the hearings were conducted in the spring of 1901 and the summer of 1901. The record of their case was made at that time. They had gone before the commission, some of them traveling hundreds of miles to do so ; the commission had taken their testimony and they had gone back to their homes. The time had elapsed and they had heard nothing ; they laiew nothing of what was going on. Congress then passed this act which provides that they shall have six months after identification in which to remove. Now, that act, of course, did not become final until it was ratified by vote of the Choc- taw and Chickasaw Nations, which occurred September 25, 1902, I think. The commission, immediately after the authority conferred by that act, began consideration of these cases. One branch of the commission was devoted to that purpose, with the result that on February 14, 1903, decisions were promulgated by the Secretary of the Interior identifying, as near as I can ascertain, between 1,100 and 1,200 cases. There were more than 1,000 of them, and the In- dians had but six months from that time in which to remove. I want to bring those facts "before the . committee because I con- tend this : That the provisions for removal in that act were so severe and so unjust to these people that they did not have a fair oppor- tunity to remove under the provisions of the act and that they should now have that opportunity. Of course, this does not concern the McKennon roll people, the 500 who never were finally identified, but the matter of 700 or 800 persons who were identified and who failed to remove, and therefore come here now with the proposition that they should be recognized because they had been identified as Choctaws and were entitled to a fair opportunity to protect and pre- serve their rights. Now, some time after the passage of this act of 1902, and after the identification of this number of Indians, in, I think, the Indian appropriation bill or the deficiency bill of 1903, provision was made for $20,000 to aid the removal of these Mississippi Choctaws. That, as will be noted, was after the date of the identification of the major- ity of them. Under this appropriation the commission, or the Sec- retary of the Interior, designated a special agent to proceed to Mis- sissippi and provide for their removal. Mr. H. Van V. Smith was appointed under that authority. When he went to Mississippi, so far as I can learn, the efforts that he made to provide for their re- moval were limited to his remaining in Meridian, Miss., which was a central point to where these Indians lived, and where the commission had been most of the time, and he sent out notices and posted notices informing the Indians of their rights. I have here some of the notices that were sent. They are on a printed form of the Interior Department. They are dated Merid- ian, Miss., July 27, 1903. The dates on all these notices are printed. 62 ENKOLLMENT IN THE FIVE CIVILIZED TEIBES. showing the actual condition of things as they were at that time. He says that — ■ Under instructions from the Secretary of the Interior, through the Dawes Commission, I am now in Meridian, Miss., for the purpbse of aiding Indigent and identified full-blood Mississippi Choctaw Indians to remove to the Indian Territory in accordance with the provisions of the act of Congress of March 3, 1903. On February 14, 1903, you were identified by the Commission to the Five Civilized Tribes as a full-blood Mississippi Choctaw. The six months provided by law within which you may remove to and make settlement in the Choctaw- Ohickasaw country expires on Friday, August 14, 1903. Mr. Campbell. That is a letter to one of these Indians ? Mr. RicHAEDSON. Yes; that is a letter from H. Van V. Smith to one of these Indians — to all of them, in fact. I got this from one of the Indians. Then he continues : Therefore, If you wish to acquire lands in the Indian Territory, but are in destitute circumstances and do not have the money to take you there, you are requested to call on me, or write me immediately at Meridian, Miss., and I will at once investigate your condition and provide free transportation and free rations as your status and circumstances may justify and require. Prompt action in your case is absolutely necessary, as the six months' limit has nearly expired. It is desired that all identified full-blood Mississippi Choc- taws shall avail themselves of this effort of the Government to assist them in getting their Indian rights. A special train will leave Meridian, Miss., for the Indian Territory on Wednesday, August 12, 1903, and if you wish to go you must be in Meridian on Tuesday, August 11. Mr. Carter. Did they pay their fare? Mr. EicHARDSON. The Government paid the fare for the Indians who came in. Mr. Carter. Is it not a fact that at the time this treaty was made a good many of these people had already removed to Oklahoma, a great many of these Mississippi Choctaws? Mr. EiCHARDsoN. I do not believe that is the case. Mr. Carter. Were there not at that time a great many of these Indians being removed by attorneys who had contracts for their removal ? Mr. EiCHARDsoN. I am thoroughly conversant with the conditions at that time, and I think I can say with almost absolute certainty there were no Mississippi Choctaws removed until after the pas- sage of the act of July 1, 1902— until after September 25, 1902. The Mississippi Choctaws that I Imow of being removed by attorneys were removed in the early spring of 1903. Mr. Carter. Why do you suppose, Mr. Richardson, that they did not remove before that time? ' Mr. Ri<5haedson. Because, in the first place there was no reason for these people to remove until they were identified. They removed on a very grave chance if they went before that. Mr. Carter. Their rights were not settled until the act of 1902 was passed? Mr. Richardson. Not until after the act of 1902, when the com- mission identified them. Mr. Carter. And their rights were not provided^ for settlement until the act of 1902 was passed Mr. Richardson. That is true, yes. They had no assurance that they would be identified if they removed before identification and ENEOLLMENT IN THE FIVE CIVILIZED TRIBES. 63 * were refused; then they would have sold everything they had and would have nothing when they got to Indian Territory. Now, the main part of this communication is the fact of the dates, as^shown here in the printed circular itself. Mr. Post. What is the date of that circular ? Mr. EicHARDSON. July 27, 1903. It will be recalled that these people had to be in the Territory on August 14, 1903, and that a special train was going to leave on the 12th, and in order to take that train they had to be there and submit their papers to Mr. Smith, and be investigated not later than the 11th of August, and yet this circular was printed on July 27. During that interim, if these people got their letters in time, they had to dispose of all their pos- sessions of whatever kind they had — they did not have much, it is true, but they had to plan the closing up of their life in Mississippi, and with their families they had to be in Meridian at a certain time. Now, I laiow that that is the condition ; that those are the very facts. I have been mixed up in this Mississippi Choctaw matter as an attorney since 1900, and I Imow the conditions. Those people could not get into Meridian to be identified until those who were representing them at that time bought clothes for them and pro- vided for their expense and for getting them to Meridian. Some of these people live down in Louisiana ; often they live 40 or 50 miles off from any place, and in many cases they had no means of getting to Meridian. The majority of these people were children and mar- ried women, but there was no exception made, no provision for those who might be sick or might otherwise be unable to get there. Mr. Post. How many did he take on this train ? Mr. Richardson. About 200 — 269 altogether. And I want to say that in moving those 269' he exhausted the appropriation of $20,000 and created a deficit of something like $1,000, which was afterwards put on one of the deficiency appropriation bills. And the people that he moved, as the evidence of Mr. Henderson shows, were people that had been brought to Meridian by attorneys and were gomg to move anyhow, and they did not come to Meridian as the result of these betters. Now, the records show that these people were living not at the towns or post offices, but off in the country, some of them 20 miles away from post offices. They were people who could not read or write. They were people, a great many of them, who could not speak English at all. Those people had probably, many of them, never received a letter in their lives, yet here is a printed circular in language that they could not read — if they could read at all— which is sent out to them, and they are expected as a result of that circu- lar, printed July 27, to be ready to leave in two weeks. They prob- ably did not mail the 1,100 or 1,200 all on that same, day. Probably some of these things were not put in the mail until the first part of August, and yet these people were expected to receive that circular and dispose of everything they had and be in Meridian ready to go to the Territory on the 11th of August. xx ■ -,« Mr. Carter. The committee will have to adjourn now. It is 12 o'clock. How long will it take you to conclude, Mr. Richardson? Mr Richardson. Just a few minutes. I have very nearly finished. Mr. Carter. We will try and meet here Thursday morning of this week at 10 o'clock. 64 enrollment in the five civilized tribes. Subcommittee of Committee on Indian Affairs, HotrsE of Representatives, Thursday, April 16, 19H.. The subcommittee met at 10 o'clock a. m., Hon. Charles D. Carter (chairman) presiding. The Chairman. The committee will come to order, and Mr. Rich- ardson will proceed now and conclude his remarks. STATEMENT OF ME. WILLIAM E. RICHARDSON— Continued. Mr. Richardson. Mr. Chairman, I have referred to the circular letter which was sent to all of the identified Mississippi Choctaws on July 27, 1903. Mr. Carter. Did you give that letter to the stenographer? Mr. Richardson. I gave a copy of that letter to the reporter. Now, if the committee will recall, the date printed in that letter was July 27, and the date at which those Indians had to be at Meridian ready to go was August 11 ; that is to say, 15 days after the date that the circular letter was printed. At the same time and on the same date there was printed this special notice to the full-blood Mississippi Choctaws. The date printed on this notice is July 27, 1903, showing and corroborating the fact that Mr. Smith, who was the one and only person designated by the Government and the In- terior Department to aid in the removal of the Mississippi Choc- taws, commenced his efforts in that direction but 15 days before the time that most of them had to be in Oklahoma. This notice, as I explained, was posted in prominent places on the county roads, but except as some white man would see it and tell one of these Indians about it, the facts show and the records show that the mere issuing of this notice did not convey any idea to them of its import, because the people not only could not as a rule speak English, but in very few instances could they read or write. Now we have this ques- tion, of course, of whether the Government owed these Indians any duty with respect to their removal, and I think that proposition is answered in this way : It is answered, first, by precedent. Wlienever the Government has required the removal of any considerable body of Indians it has always provided for the expenses of that removal. It did that in the case of the Choctaws who moved in 1831 and 1832, as required by the treaty, and it paid the expenses up to the time that the removal was abandoned by the Government in about 1844. Mr. Carter. How much was paid by the Government on that account first and last? Mr. Richardson. In the matter of removal ? Mr. Carter. Yes. Mr. Richardson. I can not give you the exact figures from recol- lection. The award made in the case of the Choctaw Nation against the United States was subjected to a reduction in the amount of the removal expenses during those years. A very large sum of money. Mr. Carter. The award was not made until about 1840. Mr. Richardson. The award was made in 1859. Mr. Carter. But the Choctaws did not receive that money until 1888. Mr. Richardson. Yes, sir; about that time. ENBOLLMENT IN THE FIVE CIVILIZED TEIBES. 65 Mr. Carter. Was there anything paid to the Choctaws — that is, the Choctaws. who originally moved "West? Was anything paid on account of their removal expenses at the time that they ^ere re- moved ? Mr. EiCHARDSON. The expense of that removal was borne at the time by the United States. Volume 2 of the record in the case of the Choctaw Nation against the United States, which I handed to the chairman several days ago, contains the contract made between the officers of the United States Government and a man named Arm- strong, who intended to move these Indians by boat and carry them most of the way by water, and thereby cheapen the transportation, but the Indians objected to that form of removal, and the agents arranged, then, to take the same amount which had been allowed Mr. Armstrong for the removal of the Indians and pay the actual expense of moving them from that amount ; and a controversy arose between Armstrong and the Government as to his rights under his contract. That matter, as I have said, is set forth in that record of the case of the Choctaw Nation against the United States. So that, not only in the instance of the removals from Mississippi in 1831 and 1832, which were the removals contemplated in the treaty — that is, the removals within the time in which thoy agreed to remove — were the expenses paid, but in the case of those who remained under the fourteenth article of the treaty, and who were dispossessed of their land, or the number of them that afterwards moved, the re- movals extending over a period of 16 years, the removal expenses were paid by the Government. The Chairman. But you can not give all the figures? Mr. HuRLEr. I can give the figures, Mr. Chairman; the removal expenses, according to the statement of the auditor, were, respec- tively, $813,927.07, with an additional amount for the same purpose of $401,556.17, and the amount paid for cattle in Mississippi, which is included in that removal expense, was $14,283:28, amounting in all to $1,229,766.52, which was paid later by the Choctaw Nation. Mr. .Carter. It was paid by the Choctaw Nation? Mr. Hurley. Yes, sir ; it was deducted from the net proceeds that the Government paid at different times. The Choctaw Nation had to stand for the indebtedness finally. Mr. EiCHARDSON. Aside from the precedents relative to the re- moval of the Choctaws, this committee is familiar with the fact that in other removals of Indians, where the removal has been required by the United States, it has been the invariable custom to pay the expense of the removal. Now, that is because of this principle, which I think is the controlling legal principle on this subject, which is that the Government, having the guardianship of the Indians, has the right to designate the place where they must live. It has the right to say to this tribe or that tribe, " You must leave the country where your fathers and forefathers have lived, and go into a, strange country and meet strange conditions." But when it exercises that privilege of guardianship, it is bound by the same obligation to see that the Indians are placed in a position where they can comply with these requirements, and where the Indians are known to be unable to remove themselves, the obligation is imposed upon the Govern- 64969—15 5 66 ENROLLMENT IN THE FIVE CIVILIZED TRIBES. ment, as a result of that principle, to provide the expense. While the Government of the United States, as shown by the figures cited by counsel, paid from 1831 to 1845 about $1,250,000 for the removal of Choctaws to Oklahoma, it only provided $20,000 in 1903 for the removal of Mississippi Choctaws, and the evidence shows that that sum was more than exhausted by the removal of 269 individuals, and there was a deficit of nearly $1,000. Mr. Post. I want to ask you a question at this point : Under the fourteenth article of the treaty of 1830, it was a condition precedent to the right of citizenship in the Choctaw Nation "West that the Indians should remove, was it not ? Mr. EiCHAEDsoN. I want to say this: The attorneys for the Mis- sissippi Choctaws have never conceded that fact. Personally, and I am speaking now of my own personal view, I believe that it was intended by that article that before the Indian should personally enjoy his beneficial estate, he should move. I think that removal is contemplated in that section, but I think that was for the reason, as I said several days ago, that under conditions as they existed at the time that treaty was drawn, no Indian could be a beneficiary, or an actual beneficiary in the physical possession of his estate, unless he lived upon it, because at that time all the Indian lands were held in community, and there were no revenues derived from those lands. Mr. Carter. Citizenship meant nothing to a man unless he lived on the land. Mr. Richardson. Yes, sir; that is right. The right of the Indian to the actual enjoyment of the land was a privilege of Indian citi- zenship Mr. Post (interposing). So that the privilege which was granted to the Choctaw Indians east, we will say, was not a thing that could be transmitted by descent or that would continue forever ? Mr. EiCHAEDSON. I think that is the case. Mr. Post. Was not that right a personal right to the Indians then in existence? Mr. EicHARDSON. I do not so construe it, and the Choctaw Nation has not so construed it, because as late as 1889 they passed a j-esolu- tion of their council urging the Government to provide money to pay for the remoVal of their brethren east in Mississippi. Mr. Post. That might have been done out of humane considera- tions. Mr. Richardson. They have repeatedly accepted as citizens those who have removed and who were the descendants of the original persons who were beneficiaries under the fourteenth article of the treaty. Congress in its legislation, in the Curtis Act, and in other acts, has recognized the claim of those Indians by giving them allot- ments, and they have ever been on an equality with other Choctaws when they have complied with the condition of removal. Now, here is the theory on which that legislation was based, that, although those Indians had the right to remove, the Government had a right to put an end to that right ; that is to say, that that tight was sub- ject to the plenary power of Congress to impose a limitation upon the time in which they must exercise that right, and the legislation of Congress did impose a limitation. Now, we say that by reason of the failure of the Dawes Commission to properly identify some BNKOLLMENT IN THE FIVE CIVILIZED TKIBES. 67 of these people— and I refer here to the full bloods on the McKennon roll— the 500 Indians found to be full bloods, but who were not iden- tified and whose cases were not disposed of at a time when they had any opportunity for revision or review, they had no opportunity to remove, and as to others, they were not given a fair opportunity to remove. Mr. Post. What I want particularly is to know your idea of the status of one of the descendants of the original Choctaws who were in being or in existence in 1830, at the time of the treaty. What is his relation to the United States now, he never having removed west and accepted the privileges of the fourteenth article? Mr. Carter. Do you mean a descendant of one of the original Mr. Post (interposing). Yes; a descendant of one of the original Choctaws who never removed. Mr. Richardson. I take it that the right which the reservee under the fourteenth article had, which right is expressed in the treaty by the fact that he shall not lose the privilege of Choctaw citizenship, is a right which deals with property and is not a personal right in the sense that it deals with the perogatives of an individual ; but it was a property right that was reserved to him. I say that for this reason the Choctaw Nation, under the law as it was being construed at that time, had no privilege of Indian citizenship, except as to property rights, but the Government did represent to those Indians and did secure their agreement to the treaty of 1830 upon the asser- tion that the Government could not take away from them the laAvs of the State of Mississippi which were being applied to them as they were to other citizens. The only right that they had was a property right. Mr. Post. You do not get my idea exactly; I am referring to the descendants of those original Choctaw Indians who were affected by this treaty, and who were in existence at the time of the ratification of the treaty; is the descendant of such an Indian a citizen of the United States? Mr. Richardson. He is a citizen of the United States undoubtedly, as all other Choctaws in Oklahoma. Mr. Post. I am referring to those in Mississippi^ or the descend- ants of the original Choctaw Indians who did not remove. Mr. Richardson. They are citizens of the United States, in my judgment. Mr. Carter. Let me ask you this question. This provision under which you claim this right for the Mississippi Choctaws is the latter sentence of article 14, which provides that persons who claim under this article shall not lose the privilege of Choctaw citizens. Now then, the thing Mr. Post is trying to get at, and it is a thing I would like to know also, is whether you consider the question of citizenship a property right or a personal right. That fact does come into the equation, and very strongly. Mr. Post. Yes; I think so. Mr. Richardson. Is not that answered by the language of the amendment following it, as follows : But if they ever remove, shall not be entitled to any portion of the Choetav? annuity. Mr. Post. Who are the antecedents of the pronoun "they? " 68 EUTEOLLMENT IN THE FIVE CIVILIZED TEIBBS. Mr. Richardson. That refers to the persons to whom citizenship has been reserved — ^the reserves under the fourteenth article. Mr. Post. Were they not in existance at the time the treaty was made ? Does it apply to their heirs forever ? Mr. EiCHAEDSON. I think that it does in this respect : In the first place, they took their allotment or reservations under the four- , teenth article, not for their own benefit, but for the benefit of their children. The provision in the fourteenth article creating the reser- vation' shows that those who must signify their intentions were only heads of families, and they received a quantity of land proportionate to the number of children that they had. The children performed no acts; the children were not to signify their intentions, and they did not receive any land, but the land was to go to the head of the family. If a man had 10 children he would receive an enormous tract of land, but he got it himself in fee. Now, it clearly could not have been the intent of that act, as to those children then living, and on whose account their father received a part of. this land in Mississippi, to bar them from the privileges of that removal. Mr. Post. Did the fourteenth article of the treaty make allotments only to the heads of families, or did it make them to members of the family ? Mr. EioHAEDSON. No, sir; that is the very point. The allotment was made only to the head of the family. Mr. Htjelex. I beg your iDardon; the provision is entirely differ- ent from that. It made an allotment of 320 acres to each child over 10 years of age, 160 .to each child under 10 years of age, and 640 acres to the head of the family. Mr. Post. Was that quantity allotted to every Indian in existence at the time the treaty was signed ? Mr. Richardson. I think my friend is mistaken about that. Mr. Hurley. I have the treaty here, and if you will read the four- teenth article in the record, you will find that I am correct about it. Mr. EiCHAEDSON. I have not looked at the wording of it recently, but my recollection of it is that the allotments were made for each child and not to each child. Mr. Hurley. I will read the portion of it pertaining to that mat- ter into the record : Each Choctaw head of a family being desirous to remain and become a citi- zen of the States shall be permitted to do so by signifying his intention to the agent within six months from the ratification of this treaty, and he or she shall thereupon be entitled to a reservation of one section of 640 acres of land, to be bounded by sectional lines of surveys; in like manner shall be entitled to one-half that quantity for e;.ch unmarried child which is living with him over 10 years of age, and a quarter section to such child as may be under 10 years of age, to adjoin the location of the parent. Mr. Richardson. Under the language of that, the allotment is also for each child over 10 years of age and a certain additional quantity for each child under 10 years of age. Now, the courts of the States of Alabama and Mississippi, where this question has been raised, have held that the reservation was granted absolutely to the head of the family. Mr. Hurley. Tlie patents were issued to the children. Mr. EiCHAEDSON. No, sir; that is a mistake. ENROLLMENT IN THE FIVE CIVILIZED TEIBES. 69 Mr. Post. The treaty itself makes the head of the family the guardian of the children, and if he elects something else, would not that be binding on the children ? Mr. EiCHAEDsox. That question -was thoroughly examined in the courts a few years later, and in a case where a child for whose benefit the father had received an allotment brought suit to recover the' allotment as against the person who had purchased the entire allot- metit from the father — that is to say, the father had received 640 acres for himself as the head of the family, and he had received additional land which was granted because of the existence of cer- tain children — in that case the court held that the grant of the father or the deed of the father conveyed without reference to the children their allotment — that is, the allotment which we assume was intended for them. The court held that, while the allotment'was ^ven under article 14 in certain -proportions because of the existence of children of certain ages, the allotment was given to the father and that he had absolute right and dominion over it. The court held that he could sell it absolutely and put all the money in his own pocket, and that his deed was binding on the children. Mr. Ballingee. Can you furnish references to those decisions ? Mr. Richardson. I have not the references here, but I will give them to the committee. There have been three or four cases before the courts in which that article was construed. Mr. Post. Now, you say that those Choctaw Indians in Mississippi have been and are citizens of the United States. As I understand it, it has been the policy of the Government in conferring citizenship upon the Indians to require some act. Is there not required some act upon the part of the Government to confer that right of citizenship ? If those Indians are citizens of the United States have they not elected under the fourteenth article what they would do ? Mr. EicHAEDSON. No, sir; because the fourteenth article expressly provides that those who desire to remain and become citizens of the States may do so by signifying their intention within a certain time, and then it provides that notwithstanding that provision they shall not lose the privilege of Choctaw citizens, but that if they have re- moved they shall not be entitled to any portion of the Choctaw an- nuity under that treaty. That is to say, we have here an exceptional condition. If that language were not in that treaty we would prob- ably have no claim here, but here is a case where the Indians have been permitted to remain in their old location, and to elect to remain there and receive reservations there, and to become citizens of the State, but thev are not to forfeit their rights of Indian citizenship. Mr. Post. Has the State of Mississippi conferred the right of citizenship upon them — the right to vote, etc. ? Mr. EicPiAEDSON. The State of Mississippi, immediately after the treaty of 1830 was passed, by legislative amendment to its State con- stitution, provided for recognition as citizens those Choctaws who desired to become citizens of the State of Mississippi. Mr. Post. How did they express that desire? Mr. EicHAEDSON. As I recall, there was no expression required in so far as the State authorities were coacerned. Mr. Post. But they were made citizens? 70 ENROLLMENT IN THE FIVE CIVILIZED TEIBES. Mr. Richardson. They were adopted as citizens by the State of Mississippi. . Mr. Post. What equity do you claim on behalf of those Indians who are descendants of the original beneficiaries of the fourteenth article of the treaty and who have stayed there this long time and •liave elected under the laws of Mississippi to become citizens of that State? Why should they now be given all the rights and immunities of citizens of the Choctaw Nation. Mr. Eici-iAEDsoN. I claim, in the first place, that this very condition was conceived and was provided for in that treaty. That is to say, in 1830 the Choctaw Nation had two estates. They had their original reservation in Mississippi, and they had their reservation West. They had held these two estates for 10 years. At that time about 2,000, as T have found out since, had removed West and were living in Okla- homa on the present reservation. The Government wanted them all to move, but some of them did not want to move. That was the con- dition when this article 14 was written. It was not written in there because the United States wanted to put it in there, but it was writ- ten in the treaty because the Choctaw Nation would not have exe- cuted that treaty if it had not been in there. That is true, because some of their chiefs had taken the position that they would not leave Mississippi, and, therefore, an unusual condition was written in the treaty. Those men had a reservation given them in Mississippi, but that was not given them in lieu of lands in the West. They were given that reservation in lieu of the proceeds of the general lands which were sold and which were paid in this annuity to the Choctaws who moved West. Mr. Hurley. Permit me to ask you a question : Did the Choctaws who moved West — ^the individual Choctaws — ever get one dollar out of the lands that they ceded to the State of Mississippi in 1830? Did not all of that money, except the expenses of the removal, go to the claimants under the fourteenth and nineteenth articles of the treaty ? Mr. EicHARDSON. I can not say about that, because I have not the records of the Choctaw Nation's distribution. I know that the fund was paid to the Choctaw Nation West. Mr. HuRLET. You are mistaken about that. Mr. Post. If I have read the proposition correctly, you are asking the committee to report a bill that will obliterate the fourteenth article in this respect: that, even if these Mississippi Choctaws are permitted to be enrolled, they will not be required to move to the Choctaw Nation in Oklahoma. What have you to say about the equity of that claim? Mr. Richardson. Those of them who remained in Mississippi re- ceived no annuity. This was a condition recognized by the Govern- ment in disposing of their estates, and rendered now unnecessary to perform Mr. Carter (interposing). Now, Mr. Richardson, I believe you stated that you based the claim of your people essentially upon that last clause on article fourteen? Mr. Richardson. Yes, sir. Mr. Carter. You would not claim that they had the right to -citi- zenship in the State of Mississippi and in the Choctaw Nation in the Indian Territory both at one time, would you ? ENROLLMENT IN THE FIVE CIVILIZED TEIBES. 71 Mr._ Richardson. I can not see anything inconsistent between citi- zenship in an Indian tribe and in a State at the same time. Mr. Carter. Do you think that at one and the same time a man might be the subject of a sovereignty in one place and the subject of another sovereignty in another place? Mr. EiCHARDSON. Is not that the very case in Oklahoma, and has not that been the case with the Five Civilized Tribes? That is to say, citizenship was conferred in 1900. Mr. Carter. The tribal government was practically abolished in 1898, and citizenship was conferred upon the Five Civilized Tribes by the act of March 3, 1901. While they have had what they call tribal existence, it really is a nonentity. They have not any au- thority for making laws, no tribunals in which to enforce them, and no courts having jurisdiction to try any character of cases. But prior to that time they were a sovereignty, and had almost the same rights of a separate State in the Union; and specifically they did have those rights with respect to their own citizens, the Indians. The act of June 28, 1898, of July 1, 1902, and other similar acts about that time, practically abolished all the jurisdiction of the Five Civilized Tribes. So that a man there became a subject of the United States Government and its laws before he became a citizen. Mr. EiCHARDSON. Is not that the original question, and one which, in its essence, is practical? That is to say, here are people who, in 1834, by an amendment to the. constitution of the State of Missis- sippi were able to become citizens of that State. Provision for that citizenship' was made. Now, as a matter of actual fact, 7,000 of those Choctaws were living in Mississippi at that time, and between that time and 1855, 4,500 of those 7,000 Indians moved west. The same conditions existed with respect to them that exist with respect to our clients to-day. That is to say, if our clients are citizens of the State of Mississippi to-day, these Indians were citizens of Missis- sippi in 1840 when they moved; Mr. Carter. The distinction is this : That before a man could be- come a citizen of the Choctaw Nation in the Indian Territory he must have moved to that country and lived there under the juris- diction of its laws, thereby renouncing any citizenship he might have in the State of Mississippi. Mr. Hill. Do you mean that he was a citizen of the State of Mis- sissippi in 1840? Mr. EiCHARDSON. He assumed the allegiance to the State of Mis- sissippi that the State government takes from a citizen; then he moved over into the Choctaw- Nation and assumed his full citizen- ship over there, with all the rights and properties, the same as though he had removed at the time required by law Mr. Carter (interposing) . That is the point. Mr. EiCHARDSON. That is the status of a great many Choctaws to- day. There are thousands of Choctaws who are the descendants of people who moved in 1840 and later years and at various times clear up to 1890. . :■ . T A a A ■ Mr. Carter. I was trying to get your position clearly defaned m my own mind. Now, let me see if I am correct about it. If I under- stand you, you admit that under this treaty a man must move to the Choctaw Nation in order to become a citizen of the Choctaw Nation, but that the United States Government, without giving due notice 72 ENROLLMENT IN THE FIVE CIVILIZED TRIBES. to your clients, destroyed the opportunity for them to move to that country and become citizens. Have I stated your contention cor- rectly? I have tried to follow you closely. Mr. EiCHAEDSON. There is a question of what you mean by becom- ing a citizen, and whether or not these people are Choctaw citizens. When they first moved, I regard it, and I think the early history of the Choctaw Nation shows that nation regarded it, as a separation of their nation into two parts; that is to say, they regarded the Choctaws east, and they termed them that way at. that time. As late as 1855, when this treaty was negotiated in 1855, they termed these people in Mississippi as the " Choctaws living east." They did not regard them as Choctaws who were not a part of the Choc- taw Nation. When they asserted their claims under the treaty of 1855, when the claims were submitted to the Senate for arbitration, they based their submission in part upon the claim for injuries done to the Choctaws who were in Mississippi. They adopted their claims Mr. Htteley (interposing). Mr. Kichardson, you have said that a half a dozen times during the course of this hearing, but you have not shown the record. I do not believe that the record shows it, and I would like for you to submit the record. Do you say to the com- mittee that the Choctaw Nation West ever received one dollar for damage done any Indian who at that time resided in Mississippi? It is true, that they did receive pay for damages committed on, Mississippi Choctaws who had prior to that time removed from Mississippi and settled in the Choctaw Nation and had become citi- zens of the Choctaw Nation. You have made the statement that a recovery was made on account of Indians residing in Mississippi, and I say that is incorrect. I would like to see some record of that. Mr. EiCHAEDSON. The record in the case of the Choctaw Nation against the United States shows that all of the reservees who were deprived of their land because of the acts of the United States were included. There were a certain number of those Indians who afterwards removed west, but the record in that case shows that the claim was based upon the total number of reservations. Now, in order to assume that it was only for those who moved west, you must assume that every person who stayed in Mississippi was quali- fied to take a reservation under article 14, and afterwards moved west Mr. Htteley (interposing). I am not assuming anything. I am talking from the record, because we have no right to assume what happened. The record shows that the Choctaw Nation did not recover one dollar for any person who did not remove to and become a citizen of the Choctaw Nation West. Mr. EiCHAEDSON. I would like to put in something in the record that bears on that point. Mr. Post. Under acts of Congress of 1901, the sovereignty of the Five Civilized Tribes was wiped off the statute books, was it not? Mr. EiCHAEDSON. Yes. Mr. Post. And those people were merged into the United States Government by giving them the right of citizenship. Now, does your bill not ask Congress to confer upon the Mississippi Choctaws ENEOLLMENT IN THE FIVE CIVILIZED TRIBES. 73 a right of citizenship in the Choctaw Nation which has been obliter- ated by law? How are you going to do that? Mr. EiCHAEDSON. We are asking here — I think that is perfectly clear — we are asking Congress now to do for these Choctaws in Mississippi exactly what Congress did in the act of July 1, 1902. Now, if Congress had the right to do it then, if Congress recognized these people as having an interest, because of their situation in Mississippi, and the fact that they had not relinquished their privi- lege of citizenship, why the people there now have the same right. Mr. Caktee. The act of July 1, 1902, was an agreement with the tribes, was it not ? Mr. EiCHAEDSON. It was an agreement in the sense that these things are agreements. Mr. Cakter. It was an agreement between the commissioners, on the part of the Government, and by the authorized delegates of the tribe. Now, then, would you consider that there was any difference between a law passed in that way and a simple act of Congress, from the standpoint of equity to all parties concerned? Let me put the question a little plainer. Would you consider that Congress had the moral right to do by an act of Congress what it has to do with the consent of the tribes? Mr. Eiohaedson. I think it has that undoubted right in respect to legislation passed now, for this reason, that in the provisions M'hich we have referred to this was the class of people who are entitled — these people that I have been speaking of particularly are people who are identified under that other act, and who come under the limitations of that act. Mr. Carteij. The act of 1902? Mr. Richardson. Yes. Mr. Carter. How many of those are there now? Mr. Richardson. About 1,200, 1 think. I say that for this reason : The inquiry of the Commission to the Five Civilized Tribes, in their report of June 30, 1907, which embraces everything up to that time, shows that some 24,000 applications for identification by Mississippi Choctaws had then been filed. Of that number, 2,534 people have been finally identified as entitled under the fourteenth article. Now, of that number, that 2,534, we know that there were 1,643 individuals who moved and are enrolled. . ' Mr. Carter. Is it your request that this extension of time be granted not only as to identification, but as to removal to the terri- tory from Mississippi? Mr. Richardson. We do not see any reason at this time for re- moval. Where are they to remove to; to what lands? There are no lands there available for them now. Mr Carter. But under the act of July 1, 1902, there was a require- ment for removal, and one for identification. Now your contention is that the time for identification should be extended and the require- ment for removal waived? Mr. Richardson. Yes; that is the case. Of course, these cases are in two classes. There are the cases of those who were identified, but by reason of the facts which I have shown they were not given a fair opportunity and did not remove. There are 600 people who are identified under the act of July 1, 1902, who, by their own misfor- 74 ' ENROLLMENT IN THE FIVE CIVILIZED TEIBES. tune or by the acts of the Government officers, failed to remove. Then there are the people who ought to have been given a proper oppor- tunity to be identified, but who never were given a fair opportunity by reason of decisions and facts which will be brought out by the persons who will speak particularly for those people. So, as I say, there are these two classes. The first class has been identified and fulfilled every condition of law entitling them to Choctaw rights and to the same property rights as were given these other people, except the one qualification of removal and you will doubtless recall that by the act of 1906, it having appeared that some persons had removed after the six months' limitation, that that limitation was extended so as to include those who had removed up to that time, but that only applied to some people who had been unable to take, ad- vantage of it within the time of limitation. We have the class of people who complied with the law and went before the commission in 1899 and who came again before the com- mission in 1900 and 1901 and were finally identified in 1903. The report of the Dawes Commission shows that 2,534 people were so identified, and of that number 1,643 people removed, leaving about 900 people identified, but who did not remove. Mr. Carter. "Where does your second class come in? Mr. EicHARDSON. As I say, I do not represent those people, and that is why I do not want to go into detail in regard to their claims, but it appears from reports of the department and records of the commission that in identifying Mississippi Choctaws in 1901, 1902, and 1903 they established certain rules. • In the first instance they decided they would hold down the cases which they would recognize to those who had actually patents under the fourteenth article. There were only 143 people who had received patents under that four- teenth article. Now, after the time within which these cases must be submitted, the department made a ruling which broadened the claimant's right to identification. That is, they held in the case of Jim Gift, an applicant who was a mixed blood whose ancestor had received scrip in lieu of a patent under the fourteenth article, that a person who received scrip, having done everything which would entitle him originally to receive a patent, stood on the same basis as those who had actually received patents. Therefore they held that the descendant of a person who had received scrip in lieu of a pat- ent under the fourteenth article, scrip being granted under a sub- sequent act, about 40 persons were entitled to identification. Now, there were some 1,900 people who received scrip, as against 143 who received a patent, so that the extent of that decision can be realized. Now, of the 20,000 persons who filed application for identification as Mississippi Choctaws, only 2,534 were identified, and of that 2,534 about 100 people were identified as mixed bloods. The rest of them were full bloods. The fact that this few people only could trace back to an ancestor which entitled them to identification was largely due to the fact that the department originally limited them to de- scendants of the 143, and after the time for filing applications had expired, after the time for taking proof had closed, they opened the doors and said that this was the law, but by that time most of the people who could recover under that law were barred. Mr. Hurley. Will you permit a question? ENBOLLMENT IN THE FIVE CIVILIZED TEIBES. 75 Mr. EiCHAEDSON. Of course ; I have no interest whatever in these people. Mr. Hurley. I just want to say that in your representation of the conditions I do not think you have it in mind thoroughly, because all of these 24,000 and some hundred applicants who claimed to be descendants of some 600 people during two generations, their appli- cations were reconsidered after the Jim Gift decision, so that every one of them had the broad consideration based upon their rights shown in the Jim Gift decision. Mr. EiCHAEDSON. I would be very greatly surprised if that were the case. I was interested in the Jim Gift case, and was practicing before the department during that period, and I never knew of any of those cases being reconsidered except where the attorneys espe- cially requested reconsideration; and most of these people were not represented by an attorney. Mr. Post. You Imow what the Indian Department thinks of this proposition, do you? Mr. EiCHAEDSON. I have been trying to get the Indian Department on record on that proposition for a number of months. I had a bill, through the kindness of this committee, referred to the Interior De- partment the latter part of last summer. I have had hearings on that bill before the commissioner with persons interested in the legis- lation, and I have had hearings again before the commissioner in company with a delegation of these Choctaw Indians from Missis- sippi who were in Washington all of last January, and while there has been a great deal of expression of sympathy with these people and while I believe we have created a favorable view — and the facts themselves warrant that favorable view — there has been no decision by the department. Mr. Post. Has Mr. Sells been asked for a decision ? Mr. EiCHAEDSON. The bill has been referred to Mr. Sells for a report. Mr. Sells has personally conducted the hearings, and I have argued this matter before him. Mr. .HuELET. The Secretary of the Interior, although, has here- tofore reported adversely on the reopening of the rolls. Mr. EiCHAEDSON. The question of the Mississippi Choctaws — these people that I represent — ^has never been reported on by the department at all. There have been reports made on certain other cases, but riot on this proposition. Mr. HuELEY. I find that the report on this very matter, in con- nection with Senate bill 7625, the report of the Secretary of the Interior on the Mississippi Choctaw matter recommending against the enactment of legislation reopening the rolls. Mr. Post. Does that refer to the Harrison bill ? Mr. HuELEY. The report is here, the bill was sent up to the depart- ment and reported on adversely by the department. Mr. Ballingee. If you will permit me, right in that connection, the bill upon which the department submitted a report, as will appear in the document now held by Mr. Hurley, was a bill that sent these claims to the Court of Claims in order that they might sub- mit testimony as to their descent from a person who received land or was entitled to receive land under article 14 of the treaty of 1830. That has been tested out by the department and found to be prac- 76 ENROLLMENT IN THE FIVE CIVILIZED TRIBES. tically impossible of accomplishment, and the department in its report there adversely recommended that bill. Mr. EiCHAEDSON. In connection with this class of people and the McKennon roll, some few of whom were not put on the final roll, along with these 2,534, I offer a copy of the report of Charles H. Sawyer, clerk of the Commission to the Five Civilized Tribes, with the commission in Mississippi, which is inclosed in a letter of Tams Bixby, acting chairman of the Commission to the Five Civilized Tribes, to the Secretary of the Interior under date of May 28, 1901, from which report it appears- that they knew that a number of Choctaws who had been identified by Commissioner McKennon, although they brought their children in, who were born after 1899, for identification, they refused to resubmit their cases for identifica- tion in 1901, under the advice of Mr. Charles F. Winton, and Mr. K. S. Murchison, who were in the field as attorneys for them at the time. (The statement of Mr. Charles H. Sawyer referred to is as fol- lows:) [Inclosure in letter of Tams Blxby, acting chairman Commission to the Five Civilized Tribes, to Secretary of tile Interior, May 28, 1901.] Statement of Charles H. Sawyer, Clerk of the Commission to the Five Civilized Tribes, With the Field Party of the Commission in Missis- sippi. While employed as a member of the field party sent by the Commission to the Five Civilized Tribes to Philadelphia, Miss., for the purpose of hearing applica- tions for identification as Mississippi Choctaws, I became acquainted with iMr. K. S. Murchison and C. F. Winton. In a number of conversations which I had with these gentlemen they severally and individually told me that they had advised tlie Choctaw Indians with whom they had held conversation that it was not necessary for those who had once appeared before the commission^ meaning the session held by Mr. A. S. McKennon on behalf of the commission in Mississippi in 1899 — to appear before the commission held at Philadelphia, April 29 to May 4, 1901. Notwithstanding the fact that every effort was made by the commission to induce all Indians to come before the commission at Phila- delphia during that time, these efforts and this purpose of the commission was actively opposed by Messrs. Murchison and Winton. While at Carthage, Miss., during the special session of the commission at that place for the week beginning May 6, 1901, the work of the commission in its attempt to hear applications for identification of Mississippi Choctaws was im- peded and embarrassed in like manner by Messrs. Murchison and Winton. One morning I personally counted 15 Mississippi Choctaw Indians at the quarters of these two gentlemen, and of that number only one applicant appeared with his wife and Infant child, the child having been born subse- quent to the session held by the commission in the year 18i39. In a talk with Mr. Murchison in reference to this fact he said that he and Winton had both advised Indians to come before the commission, but that they refused to do so. He also pointed lO the fact that a certain few Indians had at Philadelphia and Carthage appeared before the commlssiou for identification, and that they had done so on the advice of himself and Mr. Winton. I remarked that it was a singular fact that they were only a few of the large number with whom they had held conversation and that only those who had infant children, whom they desired to have identified, born since the session of the commission in Mississippi in this place in 1899. I asked him to deny the fact that he ad- vised only such a])plicants as were the parents of children born since the ses- sion of the commission in 1899 to appear before the commission, and he re- fused to make a denial. I also saw Mr. Murchison talking with a number of Indians whom the interpreter, Mr. Anderson, Informed me, pointing to the Indians at the time, had come to Carthage to appear before the commission for identification. As he was earnestly talking with this group of Indians, num- bering four or five men and a number of women, and while I did not hear ENROLLMENT IN THE FIVE CIVILIZED TEIBES. 77 what he said, I notiqed that he made the gesture of putting one finger across the other, in this manner, and cutting one hand sicross the other, holding his hands and finger^ jn that position first before one Indian and then another. None of these Indians appeared before the commission on that day or at any other time. I afterwards told him that I had seen him in conversation with them and aslied him what he meant by making the gesture of holding one hand a,cross the other. He didn't reply, and then \ aslied him if he did not say to them that the object of the commission now at its session in Carthage, was to get these Indians to give testimony which would be contradictory to the testimony given by them before the commission when they appeared before, and make them so cross their testimpny that their claim would be thrown out by the commission or by the Secretary of Interior when official review is made by him, and Mr. Murchison did not deny that construction, both as to his conversation and as to his gesture made during the conversation. I also told him that I heard that he had reported about Carthage to Indians and others that this was not the commission holding session at Philadelphia and Carthage, but a sort of committee which represented the Indian Territory and not the United States Government, and in proof of that he referred to the fact that when the com- mission appeared in Mississippi two years ago it was represented by one of the commissioners, Mr. A. S. McKennon, but that these gentlemen who were now holding sessions both at Carthage and Decatur were none of them commis- sioners. Mr. Carter. What was the date of the making of the McKennon roll? Mr. Richardson. March 10, 1899. When the Winton case was before the Court of Claims there was a witness produced in that case whose testimony is very material to this hearing. He was examined at length on this proposition by the special attorney for the Depart- ment of Justice, Mr. George M. Anderson. This witness, Pat Chitto, was a Mississippi Choctaw identified by the commission, who lived in Leake County, Miss. He gave the following testimony [reading] : 7. Question. Can you state any reason why you did not go out to the Indian Territory along with the other Mississippi Ohoctaws? Answer. Yes, sir. Because I had received no notice from the agent of the Dawes Commission, who said the Government would take me to the Indian Tjerritory. But I have not received the notice from the agent and I stayed and waited for the notice from the agent until some folks told me I had lost my rights. 8. Question. Did the Dawes Commission make any attempt to talce you out to the Indian Territory? Answer. No, sir. 9. Question. Did you make any effort to go with any other person? Answer. I did not make any effort to go with anybody else because I was waiting on the Government. 10. Question. Did the Dawes Commission, or anybody in the office, say any- thing to you about going with anybody else? (Objected to as leading.) Answer. They told me not to make any contract to go with anybody, because the Government would take me there without costing me anything. On cross-examination he explains that there were about 40 fam- ilies living in his neighborhood; that most of them had contracts with Mr. Winton and others to take them out to Oklahoma, and that under these contracts they were to give a certain part of their lands; that the Dawes Commission, when they appeared before the com- mission in connection with their identification, advised them not to keep those contracts, that those people had no right to contract with them; that the Government would move them free of charge and would send someone down there to look after them. He explains that he saw Winton after that and told him he would not go with him and they talked it over in that neighborhood and they decided 78 ENROLLMENT IN THE FIVE CIVILIZED TEIBES. to wait for the Government ; that some of the families, two or three of them in that neighborhood, moved under private contracts and that some weeks after the time was up within which they might move they found that they had lost their rights. That testimony was developed on cross-examination by the attorney for the Gov- ernment, and I am advised that when this was brought to the at- tention of the department an investigation was made which cor- roborates the statement of this witness. The record of the identification of those Indians right there shows that the commission was making a vigorous fight against attorneys all the time it was hearing their applications. They complained bit- terly about Winton and other persons associated with him before the commission in regard to the making of these contracts with these In- dians, and the act of May 31, 1900, provided that all contracts with these Indians creating any lien on their lands were void. Every- thing was done to prevent them from dealing with attorneys and be- ing represented by attorneys, probably because some of these attor- neys had taken contracts for exorbitant fees, Winton and several others having taken contracts for 50 per cent with these Indians, which the Government would not stand for. The result was that the only chance that the Indians had for removal by private means was taken away by the objection of the Government and the specific statement that the Government would remove them, and they stayed there, thinking that the Government would remove them, until their time had elapsed. That is the reason there are a thousand or more Indians to-day in Mississippi who have submitted their cases and made their proofs and were finally identified but were not mover!. Mr. Hurley. I have a statement here by Pat Chitto, the gentle- man to whom you referred, which is a peculiar coincidence, but in this he says :" The commission did not tell me that the Government would move me at that time, but said they did not know at that time just what the law would be, but said that I would hear from the commission later. Then again: I never went to Indian Territory for the reason that I had a crop to gather, and there was no way for me to go. Mr. EiciiARDsoN. That is not the same statement I had. Mr. Ballinger. That statement you have just read was a statement made at the time of his identification in 1899 by the commission, which was not complete ; it must relate to that. Mr. Hurley. This statement was made to S. A. Mills, at St. Anns post office, Leake County, Miss., on July 30, 1909, after the rolls had been finally closed, when the inspector went down there to investi- gate the matter. Mr. EiCHARDSON. This is a deposition which was given there on the 20th day of May, 1909, with counsel representing all parties present. Was that statement you refer to there taken ex parte? Mr. Hurley. This was taken before S. A. Mills, V. W. Rose, and E. P. Hill. Mr. Richardson. They were all representing the Government or the Choctaw Nation? ENBOLLMENT IN THE FIVE CIVILIZED TRIBES. 79 Mr. Hurley. I do not know Rose. I know S. A. Mills was an inspector in the Indian Office, and E. P. Hill was probably at that time attorney for the Choctaw Nation. Mr. EiciiARDSON. That was an ex parte deposition given for them. I want to say this further in connection with those cases. I have before me as part of the exhibits which I will offer, statements from prominent officials and citizens of the State of Mississippi showing the present condition of these Indians. They have lived in Missis- sippi all this time in a physical state more tribal Indians than the Choctaws in Oklahoma. That is to say, they have adhered to their customs and are living under the same conditions that their ancestors were. Mr. Hurley. Although to do so was in violation of the laws of the State of Mississippi. Mr. Richardson. That is a inatter of law with which I believe these Indians are not so familiar as with the actual conditions that confront them. That is the thing they had to regard. Now I want to offer these statements as part of the evidence in support of these claimants. They show the deplorable condition of these Indians. I do not believe there is any case of any tribe of Indians to-day where such conditions have been permitted by the Government to exist. Mr. Hurley. Do you think their condition Mr. Richardson (interposing). Will you please let me finish my statement before you ask questions, Mr. Hurley ? The Government has taken the Indians in California and in other places, who have no claim upon the Government whatever, so far as any legal rights are concerned, and provided money for the purchase of homes, for the purchase of stock, for irrigation, where the Indians were never in treaty relations with the Government, merely scattered upon the public domain — as in the case of the California Indians and the Washington Indians, whom they have been aiding for the last 10 years. They have taken Indians whose whole record has been one of hostility -and who have in no sense deserved the care and support of the Government, and the Government has given to them what it has denied to these people who have always been friends of the United States. Now we submit that it is the duty of the Congress at this time to ascertain, first, what the rights of these Indians may be; whether they had a right at the time the disintegration of the Choctaw Nation commenced, about 1896 ; whether they had a right at that time to share in the property of that nation, dependent upon removal ; whether Congress had the right to terminate that condition in that particular way, and whether it has done that; and if upon the determination of that privilege, which as a matter of fact they had and were from time to time exercising, it was the duty of Con- gress to make to those who were prevented from exfercising it, a suit- able compensation and to place them in such a condition in the place where they are living as will make them proper citizens and will be some indemnity to them for the wrongs that have been done them for the last 60 or 70 years. ,. t,- u j t w i Mr Carter. Before you close, Mr. Richardson, I want to ask you to discuss the first part of this section 35 of the supplemental agree- 80 ENEOLLMENT IN THE TIVB CIVILIZED TEIBES. ment of July 1, 1902, because that is sure to be raised by the tribal attorneys. It sets out the following [reading] : No person whose name does not appear upon th^ 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 thps^ whos? names appear thereon shall participate in the manner set forth in this agree- ment. Mr. RicHARDSQN. That, it seems to me, is covered by this co^isid- eration, by the provisions of the succeeding sections of that agree- ment, which provided for putting on the rolls these very people. That is to say, it provided for the enrollment of the^p lull-blood Indians in the first place. It simply threw the bars down to the full bloods living in Mississippi and said that full blood should be the rule of evidence that should entitle them to remove. Now, if by the acts of the Government under that very article, some of these full bloods were prevented from removing, and that fact is discovered before there is any distribution of the tribal estate, it is certainly within the right of the Government, as one party to that agreement, to remove that defect and to put on those who in equity ought to be on, under that agreement. Mr. Carter. 1 do not think there is any question about the right of the Government to put them on if the Government wanted to. Mr. Richardson. It is the duty of the Government. It is not a violation of a specific obligation for the Government to correct an error in its administration of the succeeding sections of that agree- ment, and that is what this amounts to. The same reason would apply in the case of some of the children of these Mississippi Choctaws. Under the subsequent legislation there was provision made for piitting on the rolls the children of those who had been enrolled as Mississippi Choctaws, and the question arose under that act whether the mixed-blood children of full-blood Choctaws, enrolled and identified as such, were entitled to be en- rolled. Under that act for the enrollment of children the department at one time took one view of it, and then shifted its view, with the result which is stated in this report of the department. This situation confronted them [reading] : I was informed by the office of the Commissioner of the Five Civilized Tribes that they enrolled children of that kind after the ruling of May 25, 1906, when' applications were made and the cases were brought to their attention; but that they did not have time to go back of that and correct errors which had occurred between that time aud May 25, 1906, the date of the ruling. Now, I have here an application in one of these cases showing the enrollment of the mother and the refusal to enroll the child. And one of the significant things in this decision is this, that the decision . reserves the question of enrollment of these children. It says that the other applicants are mixed bloods, and that whatever right these par- ticular Mississippi Choctaws have will be determined at a later date. Now, the commission never reexamined that case; they never de- termined the rights of the children, and that decision left them ofi the rolls, and they are off the rolls to-day, although their mother is a Mississippi Choctaw and they are as her children entitled under the law to be admitted. Now, I say that the correction of errors of law in the administra- tion of succeeding sections of the agreement of July 1, 1902, are no ENROLLMENT IN THE FIVE CIVILIZED TRIBES. 81 violation of the provisions of section 35 of that agreement that the roll should be made up as therein provided, and that in these cases, as well as in the cases of the people that we represent here, who, under proper administration and fair dealing in the execution of this law of 1902, would have been put on the roU. Now, in closing, I wUl simply ask the committee to append to my remarks the exhibits, most of which I have read or referred to in the course of my argument. Mr. Carter. Without objection that will be done. (The exhibits are as follows:) Special Notice to Full-Blood Mississippi Choctaws. Under instructions from the Secretary of the Interior, through the Dawes Commission, I have been charged with the expenditure of the $20,000 appro- priated by Congress to aid indigent full-blood Mississippi Choctaws who have been identified as full-blood Mississippi Choctaws by the commission, and who desire to remove to the Indian Territory within the six months after the date of their identification, as provided by law. I have lists of all identified full-blood Mississippi Choctaws. With many of them the six months will soon be passed. Those identified full-blood Mississippi Choctaws who wish to go to the Indian Territory are requested to call on me or write to me immediately at Meridian, Miss., and I will at once investigate their condition and provide free transporta- tion and free rations as their status and circumstances may justify and require. Prompt action is necessary for those whose six-months' limit has nearly ex- pired, and It Is desirable for all who wish to avail themselves of this effort of the Government to assist them in getting their Indian rights. None but Identified full-blood Mississippi Choctaws are included In this notice. Meridian, Miss., July 27, 1903. H. Van V. Smith, Special Agent of the United States Oovernrlient. Address. Meridian, Miss, Depaetment of the Inteeiob, Commission to the Five Civilized Thibes, Meridian, Miss., July 27, 1903. Dear Sik : Under instructions from the Secretary of the Interior, through the Dawes Commission, I am now in Meridian, Miss., for the purpose of aiding indigent and identified full-blood Mississippi Choctaw Indians to remove to the Indian Territory, in accordance with the provisions of the act of Congress of March 3, 1903. On February 14. 1903, you were identified by the Commission to the Five Civilized Tribes as a full-blood Mississippi Choctaw. The six months provided by law, within which you may remove to and make settlement In the Choctaw- Chickasaw country, expires on Friday, August 14, 1903. , Therefore, if you wish to acquire lands in the Indian Territory but are in destitute circumstances and do not have the money to take you there, you are requested to call on me or write to me immediately at Meridian, Miss., and I will at once investigate your condition and provide free transportation and free rations as your status and circumstances may justify and require. Prompt action in your case is absolutely necessary, as the six months' limit has nearly expired. It is desired that all Identified full-blood Mississippi Choc- taws shall avail themselves of this effort of the Government to assist them in getting their Indian rights. A special train will leave ]\Ierldian,. Miss., for the Indian Territory on Wednesday, August 12, 1903, and if you wish to go, you must be In Meridian, on Tuesday, August 11. , . , , ^ . In replying to this letter use the Inclosed envelope, which does not require a postiJge stamp. Very respectfully, H. Van V. Smith, Special Agent of the United States Government. 64969—15 6 82 ENROLLMENT IN THE FIVE CIVILIZED TRIBES. Depabtment of the Intesiob, Commission to the Five Civilized Teibes, Muskogee, Ind. I'., March 11, 1903. CuLBEKsoN Davis, Stumper, Miss. • Deae Sie: Inclosed herewitli you will find a copy of tlie decision of the Commission to tlie Five Civilized Tribes, rendered February 14, 1903, identify- ing yourself ; your wite. Leanua Davis ; and your minor cbildreu, Anna, Beny, and Thomas Davis, as Jli.ssissippi Choctaw Indians under the iirovisions of section 41 of the act of Congress approved July 1, 1902 (32 Stats. 641). If you remove to the Choctaw-Chickasaw country, Indian Territory, before August 14, 1903, you will have six months from that date, or uatil February 14, 1904, within which to malie proof of such removal and sett ■■"vaent at the office of the commission at Atoka, Choctaw Nation, or Tishomingo, Chickasaw Nation. Respectfully. Tams Bixby, Chairman. Depaetment of the Interioe — Commission to the Five Civilized Tribes. In the matter of the application of Culberson Davis et al., for identification as Mississippi Choctaws. M. C. K. 3020. DECISION. It appears from the record herein that application for identification as Jlississippi Choctaws was made to this commission on July IS, 1901, by Culberson Davis, for himself, his wife, Leanna Davis, and his three minor children, Anna Culberson, Beny Culberson, and Thomas Culberson, under the following provision of the act of Congress approved June 28, 1898 (80 Stats., 495) : " 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 Septem- ber twenty-seventh, eighteen hundred and thirty, and to th-it end may admm- ister oaths, examine witnesses, and perform all other acts necessary thereto, and make report to the Secretary of the Interior." From the evidence submitted in support of said application it iippears that the applicants are full-blood Mississippi Choctaw Indians. Section 41 of the act of Congress entitled "An act to ratify and confirm au agreement with the Choctaw and Chickasaw Tribes of Indians, and for other purijoses," approved July 1, 1302 (32 Stats., 041), and r=,tli3ed b.v the Choctaw and Chickasaw Nations September 25, 1902, provides as follows : "The application of no person for identification r.s 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 appli- cations all full-blood Mississippi Choctaw Indians and the descendants of any Mississippi Choctaw Indians whether of full or mixed blood who received a patent to land under the said fourteenth article of the said trenty of eighteen hundred and thirty who have not moved to .and made bona fide settlement in the Choctaw-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 hundred and thirty, and to identification as such by said commission, but this direction 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 descendant of a Missis- sippi Choctaw who received a patent to land under said treaty, or who is other- wise barred from the right of citizenship in the Choctaw Nation, all of said Mississippi Choctaws so enrolled by said commii^.sion shall be upon a separate roll." It is therefore the opinion of this commission ilint Culberson Davis, Leanua Davis. Anna Davis, Beny Davis, and Thomas Davis should be identified .:is Mis- sissippi Choctaws, and it is so ordered. Commission to the Five Civilized Teibes. Tams Bixby, Acting Chairman. T. B. Needles, Goiiiniissioner. C. E. Beeckineidge, Commissioner. Muskogee, Ind. T., Fehruary H, 1903. ENROLLMENT IN THE FIVE CIVILIZED TRIBES. 83 Department of the Intebioe, Commission to the Five Civilized Tribes, „ Muskogee Incl. T., March 11, I'JOS. _JBJ^MA PIS-AH-TON-TAMAII, Bayou Lacomi, La. Dear Madam : Inclosed herewith you will find a copy of the decision of the Commission to the Five Civilized Tribes, rendered February 14, 1903, identify- ing you as a Mississippi Choctaw Indian, under the provisions of section 41 of the act of Congress approved July 1, 1902 (32 Stats., 641). If you remove to the Choctaw-Chickasaw country, Indian Territory, before August 14, 1903, you will ha-s'e six months from that date, or until February 14, 3904, within which to make proof of such removal and settlement at the office of the commission at Atoka, Choctaw Nation, or Tishomingo, Chickasaw Nation. Respectfully. Tams Bixby, Ghairman. Department of the Interior — Commission to the Five Civilized Tribes. In the matter of the application of Emma Pis-ah-ton-tam.nh for identification as a Mississippi Choctaw, M. C. R. 2413. decision. It appears from the record herein that application for identification as a Mississippi Choctaw was made to this commission on May 27, 1901, by Emma Pis-ah-ton-tamah for herself under the following provision of the act of Con- gress approved June 28, 1898 (30 Stats., 495) : " 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." From the evidence submitted in support of said application it appears that the applicant is a full-blood Mississippi Choctaw Indian. Section 41 of the act of Congress entitled "An act to ratify and confirm an agreement with the Choctaw and Chickasaw Tribes of Indians, and for other purposes," approved July 1, 1902 (32 Stats., 641), and ratified by the "Choctaw and Chickasaw Nations September 25, 1902, provides as follows : " 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 dispositipn of such appli- cations all full-blood Mississippi Choctaw Indians and the descendants of any Mississippi Choctaw Indians, whether of full or mixed blood, who received 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 Choctaw-Chickasaw country prior to June twenty-eighth, eighteen hundred and ninety-eight, shall be deemed to be Mississippi Choctaws entitled to bene- fits under article fourteen of the said treaty of September twenty-seventh, eighteen hundred and thirty, and to identification as such by said commission, but th's direction 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 Jlississippi Choctaws so enrolled by said commission shall be upon a sepa- "" It is therefore, the opinion of this commission that Emma Pis-ah-ton-tamah should 'be identified as a Mississippi Choctaw, and it is so ordered. Commission to the Five Civilized Tribes. Tams Bixbt, Actinff Chairman. T. B. Needles, Commissioner. 0. R. Breckinridge, Commissioner. Muskogee, Ind. T., February 14, 190S. 84 ENROLLMENT IN THE FIVE CIVILIZED TEIBES. Office of Public Education Newton County, Decatur, Miss., March IS, 19 Vi. Mr. J. E. Aenold, Washington, D. C. Deab Sir: We the nndersisned certify thiit all the Ohoctaws in onr coifnty are very poor. Some of them are almo.st in destitute circumstances. Tlie boll weevils have ruined the cotton crop here for several years past and it is almost impossible for these Ohoctaws to get any employment with the farmers. As almost none of them own land, but are entirely dependent on some one else for employment, they are bound to suffer unless they get help from some source. Some of them are now living in tents, almost without food, have had no opportunity of an education, and we appeal to the Government of the United States to give these Choctaws what really belongs to them. The Indiajis that are living in camps or tents are: Joseph Hopson and family -of three, George Tookalo and wofe. Those named here are sick and need immediate help. In fact the white people have been having to furnish them for some time. There are 42 of these Choctaws living within 2 miles of T. T. Wells, one of the signers of this paper. J. D. Rogers, Sheriff, Newton Govnty. W. W. COUESET, Conniy Superintendent of Education. J. T. McCuNE, County Assessor. L. M. Adams, Treasurer. Eugene Oakleton, Deputy Chancery Clerk. T. T. Wells. Sworn to and subscribed before me March 13, 1914. [seal.] C. M. Wells, Chancery Clerk. [T'nlon Drug Store, C. C. Davis, pharmacist, manager.] Union, Miss., March H, IdH. To whom it may concern: Having served the people of this place and adjacent territory as a druggist for more than three years I have become intimately acquainted with the con- dition ot our poor people who are unable to pay for medicines needed for tlie sick members of their families. Many sad cases could be mentioned, but the saddest and most needy and most helpless cases are those of the Choctaw Indians who live in tlie country surrounding Union. In the last two weeks I have had two come to me with prescriptions to be filled and had no money to pay for the medicine. Charitable physicians had given them the prescriptions. A few months ago an Indian died here in this immediate neighborhood with- out medical attention. These people own no property; have no schools; are poor and too ignorant to conceive of a plan that would better their condition. The.v are almost without clothing, and I am told they do not have sufficient food. They are poor farm- ers; depending principally on raising a little cotton crop and picking cotton for the whites. Since the invasion of the boll weevil this work has treen displaced. As a natural-born citizen of the United States of America and as an eye witness to the said plight of our Choctaws, I earnestly appeal to my Govern- ment to give tl?em relief in some way and as soon as possible. Tours, very truly, C. C. Davis. Sworn to by me this 14th day of JIarch, 1014. [seal.] R. G. Cooper, Notary PuUic. Statp of Mississippi, /Scott County: Personally appeared before me, a notary public of said State and county, Floyd Loper, who states on oath that there are living in Scott County and other counties contiguous thereto about three or four hundred full-blooded ENROLLMENT IN THE FIVE CIVILIZED TEIBES. 85 Choctfiw Inclians. They have had scarcely no educational advantages, and very few of them can read and write. They speak English very poorly and converse in their native tongue among themselves. They are poverty stricken and are not capable of doing other .than manual labor, and on account of boll-weevil conditions now existing in this State even this kind of employment is scarce and wages are very cheap. They are an ignorant class, though as a rule honest and trustworthy. They live in small shanties and frequently eat and sleep out of doors. Their condition Is indeed pitiable and they are in great neoi of finan- cial aid. Floyd Lopkb. Subscribed and sworn to before me this March 27, 1914. [SBAL.] J. E. Welch, THotary PuUio. State or Mississippi, County of Netcton: Personally came before me, the undersigned authority for said county and State, A. J. Brown and A. G. Pettey, who make oath that Willie Morris, Silliman Parmer, and George Smith are full-blood Mississippi Choctaws; that they are male citizens ; that Willie Morris Is 30 years old, George Smith is 38 years old, and Silliman Parmer is 28 years old; that these Indians have large families dependent upon them; that they are poverty stricken and in dire distress. A. J. Beown. A. G. Pettey. Sworn to and subscribed before me this 17th March, 1914. T. P. Williams, A Justice of the Peace of Newton County, Miss. Union, Miss., March 1//, 19Vf. To Congress and Senate of United States of America, Washington, D. C: It has been stated to me that It is probable that the United States Government would lend some assistance to our Choctaw Indians who have never gone to Oklahoma if it was convinced of their need of assistance. As a lifetime citizen of this place, and as a physician of several years' practice at this place, I have had the best of opportunities to see and know their condi- tion as It really is. They are poor and unable in most instances to supply themselves with suffi- cient food and clothing, to say nothing of giving themselves the needed medical attention, which accounts for much of their misery and sufCering, many falling ill and dying without the advantage of having a physician. The coming of the boll weevil has made their condition more needy and miser- able than ever, as cotton was the principal crop with them, working small farms on "shares " for the whites, and picking cotton for them also. I most earnestly ask that our Government do something for these poor and homeless people. . Respectfully, Z. 0. Hagan, M. D. Sworn to by me this 14th day of March, 1914. [SEAL.l li- G. Cooper, Notary Public. Union, Miss., March H, 191Ji. To Members of the United States Senaie and Congress, Washington, D. C: Gentlemen : In reference to Choctaws of this locality and surrounding com- munity, will give you absolute facts relative to their moral and financial condi- tion, so far as our experience and observation has taught us. In the first place, as a general rule, they are very much scattered as to where they reside due entirely to the fact that they have never enjoyed the privilege of home depending solely on the charity of their white friends to provide them 86 BNHOLLMENT IN THE FIVE CIVILIZED TEIBES. witli such living quarters as they see fit to give them, expecting such compensa- tion only as what little work they might do for them. Being thus scattered, they have no opportunities for either schools or churches. They are very susceptible of enlightenment, and with proper treatment they could be made more useful and serve their race and country with much credit and profit to themselves. "We, their merchants, are assuming great risks in fur- nishing them the actual necessities of life. Only a few of them have any stock of any kind; what they have is practically worthless; no real estate at all. As a race, their veracity can be relied upon. These conditions existing as they do, you readily see that they simply live from hand to mouth. The seriousness of their condition is more imperative at present than ever before In the past, since the ravages of the boll weevil have practically destroyed the production of cotton, the only real money crop of the South, and the only successful crop that Choctaws can raise. Incompetency and labor conditions make It almost impossible for the Indian to get anything at all to do. If there ever was a race that needed the moral and financial support of this great Government of ours, these Mississippi Choctaws need it now. When the treaty of Dancing Rabbit was made, this Government said to them, " So long as the sun shines, so long as the grass grows green, so long as the waters flow," the white man would see that his rights were protected. For the benefit of this fast-disappearing and downtrodden race, we make an earnest appeal and this affidavit of facts. Respectfully, Williams-Beookb Co., Per W. P. V/iLUAMS, Secretary. Sworn to this 14th day of March, 1914. [seal.] R. G. Coopee, Votary PuUic. Sandersville, Miss., March 16, 191Ji. House Committee on Indian Affairs, Washington, D. C: We, the undersigned, know that George Thomas is a full-blooded Choctaw, and his family, along with other full-blooded Choctaws, are in this and adjoin- ing counties, and have failed to get their allotments, and are all illiterate and in destitute circumstances. Latab Bros. & Co., Merchants. Haedee Bros., Merchants. ' E. B. Perkins, Druggist. Union & Farmers Bank, H. H. Mitchell, Cashier. C. H. Jones., D. D. S. \ W. E. Ramsey, Railroad Agent. Department of the Interior, Office of the Secretary, Washington, D. C, February 15, 1907. Sir: Your communication of January 30, 1907, relating to petition addressed to the President that the Choctaw rolls be not closed at the present time, has been referred to the Commissioner to the Five Civilized Tribes, at Muskogee, lud. T., for appropriate action. Edward M. Dawson, Chief Glerh. [T. B. Sullivan, attorney at law.] Carthage, Miss., June 16, 1909. Hon. J. E. Arnold, Washingon, D. C. Dear Mb. Arnold : Ton remember that you made several trips into Mississippi, beginning the latter part of 1903 and continuing those trips occasionally until 1907. You were visiting Mississippi in the interest of those Mississippi Choctaws whom we could not carry to the Territory at that time, for many reasons too numerous to mention here. You further remember that in 1906 and 1907 you ENROLLMENT IN THE FIVE CIVILIZED TEIBES. 87 sent me memorials for these Mississippi Choctaws, who then and now remain in Mississippi, to sign and send to Congress and the President of the United States, which memorials protested aganst closing the rolls until some provision was made for the enrollment of those who yet remained in ilississippi. You have worked long and faithful for them, made many visits here in their inter- est; I have spent lots of time and some money for them with you, and I am getting very tired, but am still willing to do what I can. I did not keep any of the petitions ; they were all signed up by these Choctaws here and sent to Con- gress and the President of the United States in 1905, 1906, and 1907, I think. I do not remember all who did sign those petitions, but inclosed you will find a list of some who I do know did sign those petitions. I trust that these Choctaws who are left here will yet be provided for ; they are entitled to it and are very badly in need of it. Let me hear from you soon. I am, yours, etc., T. B. Sullivan. A List of Mississippi Choctaws who PBrriioNKD Congrkss and Tins Peseident OF THE United States in 190G and 1907. Phillip Dixon, Ellis Sam, Green Sam, Surry Bollie, George Barney, Allen Willis, Dixon Willis, Pat Chitto, Jim Willis. Wesley Johnson, Jack Camel, Irvin Sockey. 1015 K Street NW, Washington, I). 0., April U,, 1914. Hon. William H. Tapt, President of the United States, White House, Washington, D. 0. HoNOBED Sie: t beg to call your attention to an article that appears in the Evening Star of even date, a copy of which article I herewith inclose, marked " Inclosure A." Xou will note this article states that the Vice President and Senator Curtis advised you to-day that the administration should arrange to sell the coal and asphalt lands belonging to the Choctaw and Chickasaw Indians, and "that the tribal afl'airs of the Indians have now been adjusted so that the rolls of those entitled to share in the sale are fully established." As to the first half of this ad\ice I have nothing to say: but as to that part of it referring to the rolls of those entitled to share in the sale, I hope you will permit me a few words. The rolls of the Choctaw and Chickasaw Tribes were closed by act of Congress March 4, 1907. No one can truthfully state that the names of Indians entitled to enrollment have not been left off the During the following session of Congress after the closing of the rolls Sena- tor Owen, no doubt realizing the great injustice that had been done many Indians, on May 13, 1908, introduced as an amendment to the bill (H. R. 15641) for the removal of restrictions, a measure providing for the enroll- ment of those Indians that had been left off the roll, which amendment was agreed to by the Senate. I herewith Inclose page 6476 of the Congi-essional Eecord of May 13, 1908, marked " Inclosure B," which gives the full text of • said amendment. ,. ^ . ^ .^ , In order that you may fully understand the situation I beg to cite a few instances wherein Indians who certainly should be "entitled to share m the sale " are not enrolled, to-wit : ^, , „. v, i.i, ^ Dennis Frenchman, who lives near Hennipen, Okla. His father appealed before Commissioner McKennon in 1899 and made application for the enroll- ment of his family, including Dennis, at which time he stated that Dennis is a full-blood Choctaw Indian. When the Commission to the Five Civilized Tribes was at Jleridian, Miss., in 1901, Dennis himself appeared before it and stated that he thought he was part white. For this reason he was refuses enrollment upon the ground that he did not prove compliance to the provisioD o? the lourteenth article of the treaty of 1830, in spite of the fact he has ali the appearance of a full-blood Choctaw Indian, being able to speak but l.ttle English at the time I moved him and his family from Mississippi to Ardmore Okla! in March, 1903. His wife is a full-blood Choctaw and is enrolled, but their children are denied enrollment. - , Estelle Pizetta (or Bizetta), who lives at Ardmore, Okla., was refused en- rollment! although her mother is a full-blood Choctaw Indian and her half 88 ENROLLMENT IN THE FIVE CIVILIZED TEIBES. sister is a full-blood Choctaw Indian, both of whom are enrolled and have allotments; her mother's name is Melvina Jackson and her sister's name is Massalone Jackson, now the wife of John Farve. This John Farve is another .person whom the commission reports has all the appearance of a full-blood Choctaw Indian, but was denied enrollment. Alex Byais, who lives near Ardmore, Okla., is almost a full-blood Choctaw Indian. He had alw^iys lived with his tribe in Mississippi up to the time I moved him and his family to Ardmore, Okla., in January, 1003. He was de- nied enrollment, although his Indian blood is not disputed. His wife is a full- blood and is enrolled, but their children are refused enroUme'it Elizabeth Farve and Clemogene Farve, sisters, whom I moved from Bay St. Louis to Ardmore, Okla., in February, 1903, were denied enrollment there- after, whereupon they returned to Mississippi. However, upon review of their cases, the commissioner found that they were entitled to enrollment, but as their names did not resch the Secretary of the Interior until after the hour of the closing of the rolls March 4, 1907, their names were left off the rolls. They made their applications in the spring of 1901. So you see the commis- sion had about six .years' time within which to list them for enrollment and forward their names to the Secretary of the Interior, but failed to do so. Since the last-mentioned case shows that the commission erred so grievously and continuously in this c.-ise is it not very likely that it did so in the other- mentioned cases as well as a very great many more similarly situated. I have represented the above-named, people since 1896 and moved them from Mississippi to Ardmore. Ind. T. (now the State of Oklahoma), during the winter of 1902-3 for the purpose of securing their allotments. Considering the manner or methqd by which Ward, the United States Government agent, prepared the roll of those Choctaws who complied, or attempted to comply, with the provisions of the fourteenth article of the treaty of 1830, as shown by American State Papers, volumes 7 and S, and other Government records', it is certainly an unexcusable act of Injustice to authorize the sale of the coal and asphalt lands belonging to their tribe without making some provision for their enrollment as citizens entitled to share in the distribution of the property of the tribe. Another class is those Choctaw Indians whom were found to be the descend- ants of Choctaw Indians who complied with the provisions of the nineteenth article of the treaty of 1830. This class of Indians have established their Indian blood by having proven themselves descendants of Choctaws who complied with the provisions of the nineteenth article of said treaty, but are denied enroll- ment because they did not prove themselves descendants of fourteenth-article Indians. Should you desire to interview the Indians I have mentioned herein or have them appear before any committee of Congress, although it would work quite a hardship, I will make an effort to have them come here. The- House Committee on Indian Affairs has accorded quite an extensive hearing upon the cases of those Indians left off the rolls of the Choctaw and Chickasaw Tribes within the past few week.s. Tours, very respectfully, J. E. Arnold. The White Hoxtsb, Washington. April 15, 1910. My Dear Sir : Your letter of the 14th of April, with inclosures. relative to lands belonging to the Choctaw and Chickas;iw Indians have been received, and by direction of the President have been referred to the Secretary of the Interior for his consideration. Very truly, yours, Fred W. Carpenter, SeciTtary to the President. Mr. J. E. Arnold, I0I5 K Street NW.. Washington, D. 0. Kiowa. Okla., PeJyruary 1, 1911 Mr. Weslt Johnson : I write you few liues in regard myself and family. I have been in Oklahoma from 1902. I never have got no land, no money. I am Slississippi Choctaw, ENBOLLMBNX IN THE PIVE CIVILIZED TBIBES. 8^ wP '"^^^'^^'^f^PP'- I. want you to represent all Mississippi Choctaws. They have got full-blood white men on rolls, so many Choctaws are not on the roll. I ask the committeemen to consider this. 1 am not able to come up thi.s year. lell them to do something to relieve the Mississippi Choctaws. May God help the Government. j ^j u. uc^p Tom Tupfee. House of Repkesentatives, „ , ^, . Washington, March 10, 1908. Mr. J. E. Aenold, Washington, D. 0. Deab Sib: 1 iim in receipt of your letter inclosing a copy of a lefter fi'om Thomas Ryan, Acting Commissioner for the Five Civilized Tribes, refusing to enroll Maggie John, etc. You ask me how relief can be gotten. That question is a hard one to an- swer. You know I have a general bill pending that, if it could be enacted into law, it would give the desired relief; but I seriously doubt if the Republicans win let It pass. If you care to draft a bill for the relief of this party and will send it to me, I will introduce it and see what can be done with it. You also know that we have numbers of these private bills pending, but they usually share the fate of the others— fall of passage. It seems that the Interior Department are opposed to enrolling anybody else, and I can not tell you what is to be done. Very respectfully, JNO. H. Stephens. Department op the Interior — Commission to the Five Civilized Tribes. In the matter of the application of Seymour Farve et al. for identification as Mississippi Choctaws, M. C. R. 2421. It appears from the record herein that application for identification as Mis- sissippi Choctaws was made to this commission by Seymour Farve for himself and his six minor children, Celestine, Alba, Paul, Weston, Benny, and Katie Farve, under the following provision of the act of Congress approved June 28, 1898 (30 Stat, 495) : " 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." It also appears that all of said applicants claim rights in the Choctaw lands under article 14 of the treaty between the United States and the Choctaw Nation concluded September 27, 1830, by reason of being descendants of Charley Farve, who is alleged to have been a one-half blood Choctaw Indian, and Celestine Ma-ka-hi-yah, who is alleged to have been a full-blood Choctaw Indian. It further appears from the evidence submitted in support of said application and from the records in the possession of the commission that none of said applicants has ever been enrolled by the Choctaw tribal authorities as a mem- ber of the Choctaw Tribe, or admitted to Choctaw citizenship by a duly consti- tuted 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, 1S9G. (29 Stats'., 321.) ^ .^ ^ ^ . <- ^^ ■ ■, It does not appear from the testimony and evidence offered m support of said fipplication or from the records in the possession of the commission relating to persons who complied or attempted to comply with the provisions of said article 14 of the treaty of 1830 and to persons who heretofore were claimants there- under that the said Charley Farve or Celestine Ma-ka-hi-yah signified (in per- son or by proxy) to Col. William Ward, Indian agent, Choctaw Agency, an intention to comply with the provisions of said article 14 or presented a claim 90 ENROLLMENT IN THE FIVE CIVILIZED TEIBES. to rights tliereunder to either of the commissions authorized to adjudicate such <;lairos by the acts of Congress approved March 3, 1837 (5 Stats., 180), and August 28, 1842 (5 Stats., 513). It is therefore the opinion of this commission that the evidence herein is insufficient to determine the identity of Seymour Farve, Celestine Farve, Alba Farve, Paul Farve, Weston Farve, Benny Farve, and Katie Farve, as Choctav? Indians entitled to rights in the Choctaw lands under the provisions of said article 14 of the treaty of 1830, and that the application for their identification as such should be refused, and it is so ordered. Commission to the Five Civiized Tkibes. Tams Bixby, Chairman. T. B. Needles, Commissioner. C. R. Beeokinbidge, Commissioner. W. E. Stanley, Commissioner. Muskogee, Ind. T., March SO, IdlJf. Department of the Intebigr, Commissionek to the Five Civilized Tribes, Muskogee, OMa., April 7, 19H. This is to certify that I am the officer having custody of the records pertain- ing to the enrollment of the members of the Choctaw, Chickasaw, Cherokee, Creek, and Seminole Tribes of Indians, and the disposition of the land of said tribes, and that the nbove and foregoing is a true and correct copy of the decision of the Commission to the Five Civilized Tribes in the matter of the application of Seymour Farve et al. for identification as Mississippi Choctaws, M. C. R. 2421. J. G. Weight, Commissioner to the Five Civilized Triies. Department of the Interior — Commission to the Five Civilized Tribes. In the matter of the application of John Favre et al. for identification as Mississippi Choctaws, M. C. R. 1140. It appears from the record herein that application for identification as Mis- ' sissippi Choctaws was made to this commission on December 18, 1900, by John Favre, for himself; his wife, Louisa Favre; and his two minor children, Noah and Cecilia Favre, under the following provision of the act of Congress ap- proved June 28, 1898 (30 Stats., 495) : " Said commission shall have authority to determine the identity of Choctaw Indians cleaiming 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 adminiser oaths, examine witnesses, and perform all other acts necessary thereto and make report to the Secretary of the Interior." From the evidence submitted in support of said application it appears that Louisa Favre is a full-b]ood Mississippi Choctaw Indian. All the other ap- plicants are mixed blood Choctaws, and whatever rights as Mississippi Choc- taws they may possess by reason thereof will be determined at a later date. Section 41 of the act of Congress entitled "An act to ratify and confirm an agreement with the Choctaw and Chickasaw tribes of Indians, and for other purposes," approved July 1, ^902 (32 Stats., 641), and ratified by the Choctaw and Chickasaw Nations September 25, 1002, provides as follows : " 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 ratflcation of this agreement, and in the disposition of such applica- tions all full-blood Mississippi Choctaw Indians and the descendants of any Mississippi Choctaw Indians, whether of full or mixed blood, who re- ceived 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 settle- EJSTKOLLMENX IX THE FIVE CIVILIZED TRIBES. 91 meut iu the Choetaw-CIiickasaw country prior to June twenty-eighth, eighteen hundred and ninety-eight, shall be deemed to be Mississippi Choetaws, entitled to benefits under article fourteen of the said treaty of September twenty- seventh, eighteen hundred and thirty, and to identification as such by said ^■omniission, but this direction 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 vs^ho is not a Mississippi Choctaw of the full blood, or who is not the descendant 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 Jlississippi Choetaws so enrolled by said commission fchall be upon a separate roll." It is therefore the opinion of this commission that Louisa Pavre should be identified as a Mississippi Choctaw Indian, and it is so ordered. Commission to the Five Civilized Teibes. Tams Bixby, Chairman. T. B. Needles, Commissioner. C. K. Beeokineidge, Commissioner. Muskogee, Ind. T., May 17, 1904. . Department of the Interior, Commissioner to the Five Civilized Tribes. MvisTcogee, OlcTa., April 7, IBlJt. This is to certify that I am the ofiicer having custody of the records pertain- ing to the enrollment of the members of the Choctaw, Chickasaw, Cherokee, Creek, and Seminole Tribes of Indians, and the disposition of the land of said tribes, and that the above and foregoing is a true and correct copy of the decision of the Commission to the Five Civilized Tribes in the matter of the application of John Favre, et al., for identification as Mississippi Choetaws, M. C. R. 1140. J. G. Weight, Commissioner to the Five Civilised Tribes. Mr. Hurley. I would like to ask you a question, Mr. Richardson. A great number of times throughout your argument you have made the statement that there were 7,000 Mississippi Choctaw Indians who remained in Mississippi after the general removal in 1831 and 1833. Mr. Richardson. Yes. Mr. HtrELEY. Would you mind giving the committee some record of that? The figures that we have from the Indian Office are en- tirely different from those suggested by you. Mr. Richardson. That is a statement made, as I recall, in the case of Choctaw Nation v. United States. I got them from that case. I will make reference to that at a later meeting of the committee. Mr. Carter. Mr. Richardson, in the first session of the Sixty- second Congress I introduced a bill (H. R. 4717) directing the Sec- retary of the Interior to investigate the condition of the Mississippi Choetaws with a view to securing homes for them in some manner. That bill was sent to the Secretary of the Interior for report, and perhaps I had better read here what the Secretary had to say. [Reading:] Department of the Interior, Washington, March 4, 1912. Hon. John H. Stephens, Chairman Committee on Indian Affairs, House of Representatives. Sir- I have the honor to acknowledge the receipt of your letter of January 26, 1912, transmitting a copy of H. R. 4717, entitled "A bill authorizing an in- vestigation with a view to securing allotments for the Choetaws of Mississippi and Seminoles of Florida," and requesting a report thereon for the use and information of the Committee on Indian Affairs of the House of Represents! tives. 92 ENROLLMENT IN THE FIVE CIVILIZED TEIBBS. The act of Congress approved June 7, 1897 (30 Stat. L., 83), ijrovided, among other things, that the commission appointed to negotiate with the Fi^e Civilized Tribes should examine and report to Congress whether the Mississippi Choc taws under their treaties were not entitle^, to all the rights of Choctaw citizen- ship except an interest in the Choctaw annunities. The Commission to the Five Civilized Tribes, in its report of January 28, 1898, upon the above question, described the Mississippi Choctaws as the de- scendants of those Choctaw Indians who declined to remove to the Indian Ter- ritory with the tribe under the provisions of ,the treay made with the United States September 27, 1830. They were represented to be a poor and feeble band, somewhat scattered in different parts of the State of Mississippi, but located mostly in the counties of Neshoba, Newton, Leake, Scott, and Winston, and that they claimed the right to continue their residence and political status in Ivlissis- sip!)i and still enjoy all the rights of Choctav/ citizenship except to share in the Choctaw annuities. Said claim wns based on the provisions of article 14 of the above-mentioned treaty of September 27, 1830 (Stat. L., 333-335), that per- sons who claimed under said article should not lose the privilege of a Choctaw citizen, but if they ever removed were not entitled to any portion of the Choctaw annuities. The claim-to participate in the privileges of a Choctaw citizen and still retain a residence and citizenship in Mississippi came before the United States court In the centrrd district of the Indian Territory in 1897 in the case of Jack Amos et al. V. The Choctaw Nation, on appeal from the refusal of the Commission to the Five Civilized Tribes to place the applicants on the rolls of Choctaw citizenship. The court, in July, 1897, confirmed the judgment of the commission denying such enrollment. The right of Mississippi Choctaw Indifins to identification and enrollment and to allotments of land in the Choctaw Nation of Oklahoma is set forth in section 21 of the act of Congress of June 28, 1898 (30 Stat. K, 495-503), and in sections 41, 42, 43, and 44 of the act approved July 1, 1902 (32 Stat. L., C41-645). Reference thereto is also contained in the act of May 31, 1900 (31 Stat. L., 221-236), and in the act of June 21, 1906 (34 Stat. L., 325-341). Under the provisions of section 21 of the act of June 28, 1898, the Commission to the Five Civilized Tribes was authorized to determine the identity of Choc- taw Indians claiming rights in Choctaw lands under article 14 of the treaty between the United States and the Choctaw Nation of September 27, 1830. It was necessary under^ said provisions that persons claiming rights In the Choctaw Nation as Mississippi Choctaw Indians should show that they or their decend- ants had complied or attempted to comply with the provisions of article 14 of the above-mentioned treaty. It was required by section 41 of the act of, Con- gress of. July 1, 1902, that Identified Mississippi Choctaw Indians should, within six months after the date of their identification by the Commission to tie Five Civilized Tribes, make bona fide settlement within the Choctaw-Chickasaw country, and upon proof of such settlement to the commission within one year after the date of their identification that they should be enrolled by the com- mission as Mississippi Choctaws entitled to allotments, subject to the several provisions of the act relating to Mississippi Choctaw Indians. The right of enrolled Mississippi Choctaws to allotments and to patents there- for depends upon whether, as required by the pi-ovisious of sections 42 and 44 of said act of July 1, 1902, they have continuously resided upon the lands of the Choctaw and Chickasaw Nations for a period of three yenr.'^. or in case of death after enrollment up to the time of death, and whether due proof has been made thereof in the manner and within the time prescribed In the act. The rolls of citizens of the Choctaw Nation, including th«t of the Mississippi Choctaw Indians entitled to allotment in said nation, were prepared by the commission or by the commissioner to the Five Civilized Tribes and approved by the Secretaiy of the Interior Under the provisions of the act of Congress of June 28, 1898, above mentioned, .nnd subsequent acts. In section 2 of the act of Congress approved April 2G, 1906 (34 Stnt L„ 137), it was provided at the rolls of citizens of the Five Civilized Tribes should be completed and closed on or before March 4, 1907, and that the Secretary of the Interior should have no authority to add any names thereto after that d'te. ■ Allotments of land in the Choctaw and Chickasaw Nalions of Oklahoma were made only to those persons whose n.Tmes appeared on the final .-ipproved rolls of the tribe. No person whose name does not appenr on tlie final npjiroved rolls is entitled to share in the tribnl land, money, or other common property. Quite a number of Mississippi Choctaws were iilontified b,y the Commission to the Five Civilized Tribes, under the provisions of section 21 of the act of ENROLLMENT IN THE FIVE CIVILIZED TRIBES. 93 Juno ,28, 1898, who failed to obtain final enrollment as being entitled to allot- ment in Oklahoma, because they failed to remove to the Choctaw Nation, Oklahoma, as required by section 41 of the act of Congress of July 1, 1902. All the Mississippi Choctaw Indians, so far as they could be found, who com- plied or attempted to comply, or whose ancestors complied or attempted to comply, with the provisions of article"t4 or the treaty of September 27, 1830, were identified by the Commission to the Five Civilized Tribes, and thus was opened to them the opportunity of removing to tlie Choctaw Nation and becom- ing enrolled as a Mississippi Choctaw Indian entitled to allotment in said nation. Some took advantage of their opportunity and removed and some remained behind in Mississippi and failed to become alloted in the Choctaw Nation. Referring to the Mississippi Choctaw Indians as a class now remaining in Mississippi, you are advised that they are descendants of ancestors who. under the several sections of the treaty of 1830, received land in Mississippi or scrip in lieu thereof and became citizens of the State. As citizens of the United States they are entitled, so far as the public lands of the United States are concerned, to the benefits of the liomestead and public-land laws of the United States. It can be seen from the above that many of the Indians themselves had the opportunity offered them to remove to Oklahoma and obtain laud in the Choctaw Nation, and further, that those now remaining in Mississippi are citizens of the United States entitled to the benefits of the homestead and public land laws of the United States. The departm.ent sees no necessity, there- fore, for making further provision, as contemplated by H. R. 4717, for said Indians residing in Mississippi. X # ^ t ^ ^ * Respectfully, Samuel Adams, Acting Secretary. We had the question up awhile ago, whether any report had ever been made by thb Interior Department. There have been quite a number of reports made, but this is one that has never been referred to, and I just want to put it in the record here. Mr. HuELEY. I have also found in the meantime the report of the Secretary of the Interior on the Mississippi Choctaw bill origi- nally introduced by Mr. Harrison. It is dated July 2, 1912, and appears in Senate Document No. 1139, Sixty-second Congress, third session, beginning on page 37. Mr. Richardson. Mr. Carter, in connection with the statement of your report that you have just read, I would like to call atten- tion to the fact that the report of the conunissioner, dated March 16, 1908, to the President, which we offered several days ago, also refers to the same fact, that these Indians would be entitled under the laws to homesteads under certain acts which I referred to therein. I can say that this right is not available, for the reason that there are no lands in Mississippi which might be suitable farms for them which the department can secure. Mr. Carter. I think this, that your complaint about them not having funds to get on the lands, etc., would lie with greater force toward allotting them on public lands than it would to remove- jng them to Oklahoma if they really can not be allotted on public lands without some help from the Federal Government. Mr. HuRLET. The question I wanted to ask Mr. Eichardson awhile ago, when he asked me not to interrupt him further, was if in his opinion the fact that these Indians are destitute, on the evidence that he has offered to show their condition at this time, is any reason for the creation of a right in them against the Choctaw Nation? In other words, is the Choctaw Nation responsible for 94 ENEOLLMENX IN 'THE FIVE CIVILIZED TEIBES. their condition? Does their condition create in them a right to participate in Choctaw funds? Mr. KiCHAEDSON. I think their condition during the past 10 or 15 years was the same condition as it is to-day, and that is a fur- ther evidence of their right, because these people ought to have re- ceived under a fair interpretation of the law of 1902 their interest in the Choctaw Nation, as did the 1,643 who actually went and got land. Mr. Htjrlet. Now, let me get the idea in there so that you can cover the whole question. You are contending now that the Govern- ment should not only have given them, without proof of their right to it, an allotment in the Choctaw Nation, but in case they did not see fit to come there and claim it the Government should send our money back to Mississippi to them.. That is your contention? Mr. Richardson. No ; I say the Government owes them an obliga- tion when they put in that six months' limitation in the act of 1902, to say that they would make adequate provision to enable them to comply with it, because they knew when that act was passed that unless they were helped to get there they would be barred. Mr. HuELEY. After 77 years had been given them to remove, you think that six months was too short a time within which to close their rights — after four generations had come and gone, you think they were foreclosed in the time within which they could remove to the territory ? Mr. Rtchaedson. Seventy-seven years' time was not given them in which to remove. They were given the unlimited privilege as beings, and after 77 years, after they had enjoj'ed that privilege which the treaty entitled them to, Congress comes along and says, " Witliin six months jo\i must leave," and then it does not give them an oppor- tunity to remove until 15 days before the time is up. Mr. Htjeley. The treaty u.nder which they acquired that right provided that all the Indians should remove to the Indian Territory. That was on the 27th day of September, 1830. Then the four- teenth article gave certain Indians the right to remain and become citizens of the State of Mississippi by signifying their intention to do so. But if those Indians ever decided to remove to the Choctaw Nation they should be entitled to the privilege of Choctaw citizen- ship. ^'\Tiere? In the Choctaw Nation. To avail themselves of that privilege was the condition precedent that they should remove to and become a part of the Choctaw Nation. Now, I claim that the history of the case shows that they had 77 years to do that; that during this 77 years the Government expended money, upward of a million dollars— I have got the exact figures here — ^in removing these Indians; that the Choctaw Nation itself appropriated money, because of the humane interest they had in these Indians, in attempts to bring them to the Choctaw Nation ; that in 1896 the commission started to make up the roll of the citizens, and then this agitation in regard to the Mississippi ChoctaAvs started again; that after about six years of that agitation, considering, reconsidering, and making identifications of Mississippi Choctnws, the Department of the In- terior reported to Congress that none of the Indians in Mississippi at that time could prove their descent from anyone who had a right under the fourteenth article; that if any of them were enrolled they must be eni'olled as a matter of gratuity, and after that 1,634 were ENEOLLMENT IN THE FIVE CIVILIZED TBIBES. 95 enrolled as a ^ft; that after that time the Government then gave the rest of them six months' time in which to remove, and you claim that that was too short, after 77 years had elapsed, after four gen- erations had come and gone, that the 77 years was too short for them to remove, and that their right was foreclosed. That is the position you are taking before the committee ? Mr. Bond. I would like to ask a question. Can you produce the records showing that Senator Owen had advised Mississippi Choc- taw Indians not to apply for reenroUment ? Mr. EiCHAEDSON. I produced the record showing that Winton and Murchison had so advised' their clients, and I do that with this state- ment : That the evidence in the Winton case showed that Winton and Owen were partners; that Owen was looking after the legal end in Washington and Winton was doing the field work in Mississippi. Mr. Bond. I asked you yesterday, or the day before, specifically, if Senator Owen advised Mississippi Choctaw Indians, as stated by you, and you said that you would offer such proof. Now you show that an attorney who was interested with Senator Owen gave such advice to said Indians, and not the Senator. That is your position? Mr. Richardson. That is not the only thing considered as to that evidence. The brief of Senator Owen, the brief filed on his indi- vidual behalf in the Court of Claims — in that brief the same position is taken. Mr. Bond. Now, do you contend that the Choctav>' Nation is re- sponsible for the acts of counsel for the Mississippi Choctaw claim- ants in advising them that they would remove them, and in advising them not to reapply for citizenship? Mr. EiCHARDSON. No ; I do not contend that anyone is responsible for that advice. That was, in my judgment, absolutely correct. The error which deprived these people of their citizenship was not in following this advice but in the fact that after the Secretary had kept before him for eight years the final report of the Dawes Commis- mission identifying these people, saying that they, had proved their cases — and under the. laws as then existing they had undoubtedly proved their cases — the Secretary, in a sweeping order of March 1, 1907, disapproved their enrollment with the avowed purpose, as stated in his disapproval, that it was simply made to dispose of the cases which had to be disposed of. Mr. Bond. Was there a provision in the allotment act under which the Choctaw tribal lands were allotted, providing for funds for the removal of the claimants. Mr. RiCT-iAEDSON. What acts do you refer to; what year? Mr. Bond. Supplemental agreement of 1902. Mr. Eici-iaedson. No ; there was no provision. I may say this, that Senator Stuart, in the debate upon the question on the floor of the Senate, said that if the provision to aid the removal of the Choctaws was put in that bill the Choctaw Nation would refuse to ratify it. Mr. Bond. Do you contend the allotment act containing no pro- vision for the appropriation of funds for their removal, and pro- viding for the Government to make up the rolls, would place any liability on the Choctaw Nation, by the reason of the Government refusing to furnish them funds for removal and by reason of the Government making promises for removal? 96 EKROLLMENT IN THE FIVE CIVILIZED TRIBES. Mr. Richardson. No; the answer to that is this, Mr. Bond: The Choctaw Nation is not sought here to be made responsible for the acts of the United States. I want that understood. We say this, that in administering the affairs of the Choctaw Nation the United States has improperly prevented some people from participation, and that still having the control and the duty of disbursing their property it is right to exclude them now and make good this mistake without subjecting itself to pecuniary loss; that is to say, place the people l3ack in the same place where they would have been had the United States acted properly. Mr. Bond. Do you knew of any rule of law which makes a ward responsible for the acts of the guardian or curator ? Mr. EicHAEDSON. In the sense that the property had been improp- erly administered, but is still in the hands of the administrator and may be readjusted, I should say that would always be the case. Mr. Caiotsr. It is now 5 minutes after 12 and we will have to adjourn. We will try to meet Tuesday next at 10 o'clock a. m. Subcommittee or Committee on Indian AffxMrs, House or Representatives, ' Thursday, May H, 1914. The subcommittee met at 10.30 o'clock a. m., Hon. Charles D. Car- ter presiding. Mr. Carter. The committee will come to order. Mr. Bond. Mr. Chairman, I would like to say in behalf of Mr. Hur- ley, attorney for the Choctaw Nation, that he is now attending court in Oklahoma in response to a subpoena, and is unable to be present at this meeting. Mr. Harrison of Mississippi. Do you know when he is coming back? Mr. Bond. No; I do not. I thought he would be here to-day or to-morrow. Mr. Carter. We will hear Mr. Arnold this morning. You may proceed, Mr. Arnold. STATEME:KrT OF J. E. ARNOLD. Mr. Arnold. Mr. Chairman and members of the committee, this enrollment question is no new thing. We find most ancient people proceeding in very much the same way. God Almighty commanded Moses, the great lawgiver, to make up a roll of the Israelites. So Moses and Aaron, the secretary of the interior in that case, with the assistance and cooperation of a repre- sentative from each tribe, numbered the people of Israel. We find in this ancient numbering another parallel also. The descendants of Joseph were divided into two tribes, even as the Choctaws are to-day, Ephraim and Manassas, the Choctaws and the Mississippi Choctaws, Ephraim the powerful has been, and is now, most ably represented by counselors and attorneys, I appear here to-day for three classes of people : First, all persons who have been identified as Mississippi Choctaws by the Commission to the Five Civilized Tribes in its report of March ENROLLMENT IN THE FIVE CIVILIZED TRIBES. 97 10, 1899, commonly known as the McKennon roll, and all persons who have been identified as Mississippi Choctaws by the said com- mission from March 10, 1899, to March 4, 1907. Second, all full-blood Mississippi Choctaws who through inadver- tence never appeared before the said commission for identification. Third, all descendants of beneficiaries under the fourteenth and nineteenth articles of the treaty of 1830. My interest in and efforts for the Mississippi Choctaws did not originate as a matter of choice on my part. It seems they are my heritage. My mother was born in Mississippi and resided there until grown. Her ancestors, so far as we can trace back the generations, ever dwelled there. Her father, Adam Lucas, was a reservee under the provisions of the nineteenth article of the treaty of 1830. Mr. Post. Are you a Mississippi Choctaw ? Mr. Arnold. Well, I will leave the committee to determine that when I have concluded, Mr. Post. I would like to read now an excerpt from the act of August 23, 1842. Thisis an act of Congress of August 23, 1842, entitled, "An act to provide for the satisfaction of claims arising under the four- teenth and nineteenth articles of the treaty of Dancing Rabbit Creek, concluded in September, one thousand eight hundred and thirty." Be it enacted ty the Senate and House of Representatives of the United States of American m Congress assemhled, That the act approved on the third of March, eighteen hundred and thirty-seven, entitled " An act for the appoint- ment of commissioners to adjust the claims to reservations of land under the fourteenth article of the treaty of eighteen hundred and thirty, with the Choc- taw Indians," and also, the act approved on the twenty-second day of February, eighteen hundred and thirty-eight, entitled " An act to amend an act entitled 'An act for the appointment of commissioners to adjust the claims to reserva- tions of land under the fourteenth article of the treaty of eighteen hundred and thirty— with the Choctaw Indians,' so far as the same are not repealed or modified by the provisions of this act," be, and the same are hereby, revived and continued in force until the powers conferred by this act shall be fully executed, subject, nevertheless, to repeal or modification by any act of Con- gress. And all the powers and duties of the commissioners are hereby extended to claims arising under the nineteenth article of the said treaty, and under the supplement to the said treaty, to be examined in the same manner afid with the same effect as in cases arising under the fourteenth article of the said treaty. Then I have a report from the department itCnoa which I would like to read an excerpt. Mr. Carter. Now let us get your status straight in the record, Mr. Arnold. You were an applicant for enrollment first when ? Mr. Arnold. Before the Choctaw Council in 1895. Mr. Carter. Were you admitted ? Mr. Arnold. I was admitted ; yes. Mr. Carter. Admitted by the council ? Mr; Arnold. Yes, sir. Mr. Carter. By act of the council ? Mr. Arnold. Yes. Mr. Carter. Now, I wish you would furnish the committee with & copy of the report to be placed in the record. Mr. Arnold. Yes ; I will. ■ • » Mr. Carter. Now, you next came before the Dawes Commission? Mr! Arnold. Yes; on application before the Dawes Commission. 64969—15 7 . _ _ ..; 98 ENROLLMENT IN THE FIVE CIVILIZED TRIBES. Mr. Caetee. What was the action of the Dawes Commission? Mr. Aenold. They denied me. Mr. Caetee. And then you appealed to the courts? Mr. Aenold. For the central district of Indian Territory, and was admitted. Mr. Carter. Then the agent took the case to the citizenship court? Mr. Arnold. Yes; the Eiddle case, which was the test case before the citizenship court, overturned the decision of the district court. Mr. Carter. And your case was involved in the trial of that case? Mr. Arnold. Yes. Mr. Haeeison. At the time you made application you were living in Oklahoma, were you not ? Mr. Arnold. Yes ; I was living in the Territory. Now, I want to read an excerpt from the report of the department dated June 28, 1905. [Reading:] In January, 1897, the commission says that when the case was pending before the United States court for the central district of the Indian Territory, C. S. Venson, attorney general for the Choctaw Nation, filed with the records in the case a confession of judgment on the part of the Choctaw Nation, that none of the applicants have ever applied to the commission for identification as Mississippi Choctaws, nor has any claim prior to this time been submitted to the commission that they were so entitled by reason of descent from Nancy Lucas or Adam Lucas; that it does not appear from the records In the case of Martha Arnold, or the records In possession of the commission, that Martha Arnold, Nancy Lucas, or Adam Lucas complied with the pro- visions of the fourteenth article of the treaty of 1830, or the acts of March 3, 1842 (5 Stats. 315). The only record the commission was able to discover concerning the recog- nition of Adam Lucas as a citizen of the Choctaw Nation is that contained In volume 1 of the claimant's brief and evidence, in the suit of the Choctaw Nation V. The United States. It appears on page 26 of volume mentioned, that Adam Lucas was a reservee under the nineteenth article of the treaty of 1880, and that there was sold for the consideration of $100 to the reservee, Adam Lucas, the E. J of the S.W. i of sec. 26, T. 16, R. 12 B. The commis- sion says this record has no reference whatever to compliance of Adam Lucas to the provisions of the fourteenth article of the treaty of 1830. - The records of this oflice show that the land above described was reserved for Adam Lucas in accordance with the provisions of the nineteenth article of the treaty of 1830, and that Adam Lucas was first issued rations in the Indian Territory, December 16, 1832. Now, during 1896 and 1897 I visited the Choctaws in Missis- sippi and found their condition deplorable. Each year it has grown worse. Scarcely a year has passed that I have not been among them from one to half a dozen times. Also, I have been among those in Louisiana frequently. I am glad to say that their condition is not near so pitiable as that of their brothers in Mississippi. I have a litle booklet here which I would like to read from. It is entitled, " Bureau of American Ethnology, Bulletin 48. The Choctaw of Bayou Lacomb, La., by Bushnell." This booklet was prepared by David I. Bushnell, jr. I would like to read from this book, for the reason that it gives the history of these people in Louisiana; it gives their customs and traditions down there; it re- cites the fact that they speak the Choctaw language and are living down there in houses thatched and bound together with cane, and it treats quite thoroughly of all their habits and customs. Mr. Carter. You do not want to have that whole book incorpo- rated in the record, do you ? ENROLLMENT IN THE FIVE CIVILIZED TEIBES. 99 Mr. Arnold. No; I will simply submit it for what it is worth, for the information of the committee. I would like, however, to have the illustrations from the book included in the record. Mr. Harrison. You want to leave that book so that the members of the committee can refer to it ? Mr. Arnold. Yes. Now, the condition of the Choctaws in Mis- sissippi is simply this : Only a very small percentage of them own any land whatever, and they are tilling the soil on shares, on halves generally. They are uneducated. They are not skilled laborers at all. They have no schools to which they can send their children, and on account of having no education they are unable to go out and cope even with the colored man in the State of Mississippi in the way of securing employment. Their opportunities for making a living are very meager, especially when you take into considera- tion the fact that they are uneducated, unskilled, and that they must confine themselves to growing cotton. They have had the boll weevil down there for three years, and these people are practically in a state of starvation. I brought a delegation of three of them down here in January, and I found it necessary before leaving Mississippi to provide them with clothes, and when we reached the city here with Chief Wesley Johnson he had not clothes enough to keep him com- fortable, and I found it necessary to go out and buy him some clothing. Since 1897 I have been the authorized representative of these people, and as such have employed various attorneys who assisted me in securing legislation, under which a considerable part of them were enrolled, and secured their rights by removing to the Choctaw Nation, Ind. T. I was prepared to move them all, but after the passage of the act of March 3, 1903, appropriating $20,000 for their removal, I was informed that I would be charged with interfering with the work of the commission if I undertook to move more, so I was forced to leave more than a thousand full bloods in Mississippi. The Department of the Interior, through its representatives, ex- pended this appropriation, above referred to, on a small number of them, and I am informed that the majority, if not the entire number, removed by the Government had been brought into Meridian by L. P. Hudson under contract, and that he had expended a large sum of money paying their debts, freeing them from labor contracts, purchasing them clothing, etc. This was the conduct of a repre- sentative of the Government, who came down to Meridian and found Mr. Hudson there with something over 200 Choctaws, and he simply divested Mr Hudson of the control of them, and took them up and moved them' to the Indian Territory, and I think that concluded the activities so far as the Government was concerned at that time. On April 24, 1914, the department transmitted a list o± names ot persons whom it finds are equitably entitled to be placed upon the rolls. I have a copy of the list here, to which I would like to call attention. This is a public document, a communication from the Secretary of the Interior to Hon. Kobert L. Owen, dated Washing- ton, April 24, 1914, and signed A. A. Jones Assistant Secretary. I find on this liLt 21 Mississippi Choctaws, and the majority of those 21 Mississippi Choctaws are living in Mississippi to-day. I wonder 100 ENROLLMENT IN THE FIVE CIVILIZED TRIBES. why the department discriminates against the poor Choctaws of Mississippi who, certainly through no fault of their own, have been left off the rolls? Many of them neVer received notice of their identification, and none of them until from one to several months of the time for removal had run against them. When Mr. Richard- son appeared before the committee the other day, he placed in evi- dence some of the certificates of identification, notices, and letters, and some of the letters bore postmarks showing that they had not been put in the post office for more than 30 days after the people had been identified; and when you take into consideration the method and manner of the expenditure of the $20,000 for their removal, they were as clearly left off through inadvertence as any whose names appear on this list recommended by the department, which I wish to file. (The paper referred to follows:) Citizenship of Five Civilized Tribes. Department op the Interior, Washington, April 24, 19Vi. My Dear Senator: In response to your request of April 22, I am iuclosiug herewith a list of the names of persons vpho, upon the investigation heretofore made, have been found apparently equitably entitled to enrollment on the rolls of the various tribes composing the Five Civilized Tribes of Oklahoma. The data as to each of these names have heretofore been submitted to the Committee on Indian Affairs of the Senate and may be found in Senate Document No. 1138, Sixty-second Congress, third session. This list contains the names of all those whom the department has found equitably entitled to enrollment, omitting, as suggested, the names of newborn Choctaw freedmen. Very truly, yours, A. A. Jones, First Assistant Secretary. Hon. Robert L. Owen, United States Senate. List of persons found to le apparently equitably entitled to enrollment in the Five Civilized Trihes of Oklahoma (6m* whose names do not appear on the final rolls of said tribes), as set forth in the list accompanying the report of W. C. Pollock, of January 15, 1912, and including those listed in a report of November 15, 1907, of the Commissioner to the Five Cii;ilis:ed Tribes, but omitting from said lists the names of the new-born Choctaw freedmen claim- ants and duplications. SEMINOLES BY BLOOD. Albert, Johnson. Jones, Edward. Davis, Lina. Paddy, Elsie. Hulwa, Cora. Tiger, Willie. Jones, Joseph S. Washington, Witness. CREEKS BY BLOOD. Allen, Wootsy. Archibald or Narchubby, Smedlow; Archibald or Narchubby, Cain. . Archibald or Narchubby, Abel. Archibald or Narchubby, Adda. Asbury, Coo-wees-coo-wee. Barnett, Peggy. Bear, Lucinda. Billy, Chotekey. Birdcreek, Lewis. Brown, Hannah. Brown, Sam. Chupco, Mollie. Cosar, Susie. Downing, Ambrose. Fish, Eli. Fish, Willie. Foster, Sallie. Glvins, Luther. Green, Jeanetta. ENROLLMENT IN THE FIVE CIVILIZED TRIBES. 101 Green,' Siah. Jones', Martha. Lasley, Tobe. Lewis, Sampson. MiiUy, Jennie (CMnhoker). Mully, Barney. Mully, Katie. Perry, Susie. Proctor, Freeman. Raiford, Washington. Balston, Fred E. Riley, Washie. Screechowl, Annie. Simmon, Samuel. Simmons, Mandy. Simpson, Nettie. Simpson, Mellissa. Starr, MoUie. Terry, Albert. Wesley, Ada. White, Edmund. Adams, Freddie. Bullocks, Robert. Alack, Buck. Baldridge, John. Beamer, Jennie. Bean, Charles. Blgfeather, Nancy. Brassfleld, Alta May. Bread, Jennie. Carey, Lesie. Catron, Nancy. Christian, Pearl. Christie, Frank. Christie, Maggie. Chuculate, William. Coming, Samuel. Crapoe, Mary Mildred. Crittenden, William. Dirteater, Suagee. Dreadfulwater, Maggie. Elk, Willie. Feather, Dolly. Fisher, Ross Johnson. Flute, Johnson. Gritts, Charles. Hair, Samuel. Hawkins, Peggy. Hicks, Lydla. Hooper, John. Johnson, Joe. Johnson, Polly. Keener, Hattie. Keener, Sampson. King, John. Knight, Peggie. Leaf, Sarah. Liver, John L. McCarter, Sampson. McCoy, Jack. Miller, Jennie. Noisewater, French. Johnson, Addle. Lasley, Sulphur. Lasley, Tustunnuga. Long, Lucy. Mully, Mitchell. Mully, Simon. Perry, James. Polk, Slab. Proctor, Maxie. Ralston, Blva Leona. Ralston, Jeanetta Louise. Scott, Mary. Screechowl, Concharty Micco. Simmons, Delia. Simpson, George. Simpson, Mallie. Stanley, Wootsy. Terry, Alpha Omego. Wattle, Albert Willie. West, Nellie. Byrd, Mattle. CREEK FBEEDMEN. Brown, Mosetta. CHBBOKEES BY BLOOD. Anderson, Stanley Q. Ballou, Dave. Beamer, Ellis. Bean, James. Bitting, Edgar T. Bread, Ben. Cameron, Andrew. Catcher, or Tehee, Charles, jr. Catron, Peggy. Christian, Willie. Christie, James. Chuculate, Gussie. Cochran, Daisy. Cookinghead, Lucy. Crittenden, Osie. Daugherty, Betsy. Downing, Laura. Dry water. Porter. Feather, Grant. Field, Pearle. Flute, Thompson. Girty, Stan Field. Guess, Nannie. Hawkins, George. Henson, !^!noch. Hilderbrand, John E. Houston, Jason. Johnson, Wllda. Keener, Coleman. Keener, Lucy. Ketcher, Andrew. King, West. Leaf, Nancy. Lewis, Polly McCarter, Charlotte. McCarter, Nancy. Martin, Hattie. Mitchell, May. Oakball, Ellas. 102 EWEOLLMENT IN THE FIVE CIVILIZED TKIBES. Palone, Naucy. Plilllips, Sinda. Potter, Walter. Pumpkin, Ada. Sack, Welling. Sanders, Kennetb. Sliade, Striker. Snell, Emma. Spade, Lacey. Speaker, Sunday, or Pet(!r. Sullateskee, Lizzie Milo. Swimmer, Lincoln. Tadpole, Lizzie. Thompson, Rebecca. Toney, Lala. Vann, Ice. Vann, Maggie. Waterfallen, John. Welch, Bessie. West, Sallie Ellen. Wolfe, Dick. Woodall, Tom. Wright, William S. Young, Rufus. Wolfe, Jim. Pettit, Josie. Phillips, Olle. Porter, J. George. Rhodes, John. Sam. Katie. Scraper, Narcy. Sixkiller, Harvey. Sourjohn, Charlie. Spaniard, Myrtle May. Suake, Swimmer. Swimmer, Grace. Tadpole, Betsy. Tehee, Eliza. Tinoowie, John. Turtle, Wesley. Vann, Lillie. Vann, Thomas, jr. Waters, Anderson. Welch, Simon. Wilkerson, Allen. Wolfe, Dave. Wright, Edgar Erviu. Yaholah, Charlotte. Grazier, Viola. Springwater, Eli. Hill, Alma. Scott, Lucy. CHICROKEE FEEEDMEN. Lane, Pearlie. CHICKASAWS BT BLOOD. Alexander, Ben. Arpealer, Sidney. Johnson, Jim. Johnson, Corinne May. Shields, Ecius. Arpealer, Nlcey. Ensharkey, Annie. Johnson, Eva Agnes. Orphan, Buster. Shields, Barney. CHICKASAW FREEDMAN. Thompson, Savanna. CHOCTAWS BY BLOOD. Qarn, David. Fisher, Dicey. Garland, Lizzie. Hodges, Melissa. Jackson, William. Johnson, Alphrus. McKinney, Benjamin Franklin. Robinson, William F. Robinson, Alpha. Robinson, James William. Robinson, Mary Ola. King, Mary. Charles, Abram. Fobb, Mary. Haiakonobi, Amos. Jackson, Sallie. James, Fannie Myrtle. King, Solomon. Polk, Willis. Robinson, Alice. Robinson, Ada B. Robinson, Emeline. Wright, Joseph James. MISSISSIPPI CHOCTAWS. Davis, Mond Amos. McDaniel, Houston. . Taylor, Joseph. Nickey, Billy. Nickey, Bettie Russell. Farve, Clemogene. Charlas, Sallie. Charlas, Bettie. Charlas, James. Adams, Nora M. Tohn, Lillie Jackson. McDaniel, Joe. Nickey, Maggie (now John). Nickey, Sam. Nickey, Mollie Mass. Farve, Elizabeth. Charlas, Minnie. Charlas, Louisa. Adams, Mitchell C. Adams, Lillie M. Adams, Mitchell C, jr. ENROLLMENT IN THE FIVE CIVILIZED TEIBES. 103 INTEBMARBIED CHOCTAW. Bevill, Joe T. CHOCTAW FREEDMEN. (Born prior to Sept. 25, 1902.) Bird, Ida. Boyd, Emma, now Austin. Boyles, Mary Malinda. Boyles, Martlia. Brown, Oscar. Bufflugton, Alex. Burris, Hattie. Burris, SIras Jeffie. Butler, Fredonia. Butler, Jennie. Cole, Jeff. Folsom, Franli. Folsom, Erna. Gaffney, Augusta. Gaffney, Nellie. Green, Amy Jane. Hall, Estoria. Jackson, Nora. Johnson, Johnnie. Johnson, Herman. Owens, Martha Ann. Owens, Henry. Eiley, Gertie. Thompson, Wade. - Walker, Noel. Washington, Albert. Washington, Pearlle. Washington, John Heurv. Williams, Leroy. McKinney, Gilbert. Dunf ord, Lena. Chester, Delia. Ligglns, Stephus. Liggins, Roberta. Newton, Archie. Owens, Martha Ann. Owens, Heni-y. Mr. Ballingee. Is it not a fact that every one of those persons on that list had removed to Oklahoma and had settled on their lands ? Mr. Arnold. Yes ; and they are back in Mississippi to-day, I think, the majority of them. Mr. Post. How did they come to go back to Mississippi ? Mr. Arnold. They removed from the State of Mississippi — Clemo- gene Farve, Elizabeth Farve, and some others that I do not recall the names of just now — in the early part of 1903. They remained there in Oklahoma, waiting to receive notice of identification until the roll was closed or about the time it closed, and they became dis- couraged and returned to Mississippi. And I think about that time the names were forwarded to the department here — ^perhaps tele- graphed, but not in time to have the sanction of the Secretary of the Interior. Mr. Ballingee. If you will permit me there, inasmuch as those are my clients that you are referring to Mr. Arnold (interposing). If you will just make a note of that, when I am through here you can ask me any question you like. I do not object to them being your clients, however. A month or so previous to March 4, 1907, I caused to be pre- sented to the President, to the Secretary of the Interior, and to the Senate Committee and the House Conamittee on Indian Affairs peti- tions signed by a great number of full-blood Choctaws in Missis- sippi, praying that the rolls be not closed against them. Now, if you have the exhibits that Mr. Eichardson offered here the other day, I would like to call attention to that fact, so that those petitions could be looked up. You will also find a communication signed by Edward Dawson Clark, chief clerk in the Secretary's office, addressed to Simpson J. Tubbee, who had written to the President, the Sec- retary of the Interior, the Senate Committee on Indian Affairs, and the House Committee on Indian Affairs, protesting against closing the rolls until such time as some provision was made for them. 104 ENBOLLMENT IN rUK I'lVE CIVILIZED TRIBES. Also, I would like to call ultenfu.n to a letter from T. B. Sullivan addressed to me. That letter wiis placed in evidence the other day by Mr. Eichardson. My mother's case was \Him\\ng when the rolls were closed, and I wish to call attention in tlial connection to the letter of W. W. Wright, dated March 19, 1907, a copy of which I will offer in evi- dence. It is addressed to William W. Wright, esq., attorney at law, Washington, D. C, and is signed by Frank M. Corser, chief clerk. The letter referred to is as tV)llows: Depabtmeint of the Interiob, Office of Indian Affairs, Washington, March 19, 1907. William W. Weight, Kscj , Attorney at Law, Wanhi>if/I.'in Loan & Trust Building, Washington, D. G. Sik: You are advised Ihal your motion for review and reconsideration of departmental decision of February 14, 1907, in tlie matter of the appllcatSon for the enrollment of Miiitlui Arnold as a citizen by blood of the Choctaw Nation vras received from I ht- Commissioner to the Five Civilized Tribes in ttas office on March I, 1907, loo late to receive consideration under tte law. Very respecti fully, Frank M. Cobseb, Chief Clerk. (Copy. Originai hciiL by luail to Senator Robert L. Owen, April 23, 1908.) We tried to get the case reconsidered before the rolls were closed, as we were prepsued to show that we had been admitted to Choctaw citizenship by a duly constituted committee of the Choctaw Nation, and that under I he act of June 10, 1896, neither the Dawes Commis- sion nor the dislrict court nor the citizenship court had any juris- diction to considei- our case further than to enter our names upon the rolls it was comiriissioned to make up, as we had our tribal recog- nition prior to the passage of the act of June 10, 1896. And I would like to call al.lention to some affidavits to support that contention. I would like to call attention to just a few. This is upon the con- fession of judgment by the attorney general for the Choctaw Na- tion, the highest law officer in that Nation at that time [reading] : DoAKSviLLE, I. T., October 2S, 189i. $100. Received of Martha Arnold the sum of 100 as applicant for citizenship. (Signed) W. W. Wilson, Treas. C. N. Report of i-U.lzenship committee No. 11. The cause of Martha Arnold and children, after hearing the evidence in said case, was fidtniltod by the committee on citizenship on November 12, 1S95. DRAFT OF ADMISSION. Be it aniirled liy the general council of the Choctaw Ufationa assembled, That Martha Arnold and her family, to wit, F. J. Arnold, age 42; W. H. Arnold, age 40; J. N Arnolstiinony of Louis Crowder, Eliza VP^ard, Ola Sa Chubbee, and the applicants. David B. Roebuck was then national attorney of the OUoctaw Nation and appeared before this committee and represented the Nalioii on taking this testimony and, after the testimony' was all heard, stated llial inulor the testi- mony in the case he could make no objections to the enroilnient of the appli- cants, and the committee found and decided that applicants were citizens by blood of the Choctaw Nation. J. W. KVEBIDQE. Subscribed and sworn to before me this the 25th day of Mjiy, lUOO. [NOTABY SEAL.] THOMAS A. Dif'KSON, Nolai y PuUic. My commission expires September 16, 1909. I, Smallwood Nelson, state that I am a Choctaw Indian by l)iood and that I was chairman of the committee referred to by J. W. Bveridge in (ho above affi- davit, and that his statements in said affidavit have been rend over and ex- plained to me, and that the facts stated by him are true as contiiined In said affidavit. I further state on oath that William Anderson and Ola Sa (Chubbee, members of said ciizenship committee, are dead, and I am informed that Billy Jones, of said committee, Is also dead, leaving now living only niywlf .-ind J. W. Bveridge, of said committee. Smallwood Nf.lson. Subscribed and sworn to befqre me at, Higgins Central District, Indian Ter- ritory, this June 16, 1906. [NOTABT SEAL.] Wm. J. Htjlsey, Nolury I'uhUo. Indian Tebeitobt, Central District: I, J.'H. Gordon, being first duly sworn, states upon oath that he was at one time one of the attorneys representing the Choctaw Nation in certiiin citizen- ship cases; that during the time said citizenship cases were being tried in the United States Court for the Central District of the Indian Territory, at South McAlester, the papers in a number of such citizenship cases were uiiiiilentionally destroyed by fire in the office of Stuart & Gordon; that among (he pai)ors so destroyed were the papers in the case known as the Arnold citizenship case; that all the papers in said case and all the records which were with .said papers were so destroyed t^ fire, and according to affiiant's best recollection (he |)l(?ad- Ings were afterwards by agreement substituted in court. (Signed) J. II. (Jobdon. Subscribed and sworn to before me this 22d day of June, 1906. [SEAL.] (Signed) R. S. Oatk, Notary Public, Central District. Mr. Abnold. I have one other affidavit from another party, which has just come in this morning, a man who had personal knowledge of the destruction of the original papers by fire. His name is Will in m E. Hailey. [Eeading] : State of Oklahoma, Pittsburg County, ss: I, William E. Hailey, of lawful age, being first duly sworn, depose and stale on oath that my post-office address is McAlester, Okla.; that I am a regnlnily enrolled citizen of the Choctaw Nation, and that during the year 1897 the law 106 ENROLLMENT IN THE FIVE CIVILIZED TKIBES. firm of Stuart & Gordon were representing tie Choctaw Nation in citizenship cases then pending in the United States Court for the Central District of the Indian Territory, and that at that time I was a member of said firm of Stuart & Gordon; that the citizenship case of Martha Arnold et al. was one of the cases in which we appeared, and during the pendency of said case the records therein were accidentally and unintentionally burned in our office; that among the papers so destroyed was the resolution of the Choctaw Council creating a citizenship committee, composed of Joe W. Everidge, chairman ; Ohla Sachub- bee, Billie Jones, Small W. Nelson, and William Anderson, said resolution au- thorizing said committee to pass finally upon and settle the question of citizen- ship of applicants for citizenship by blood in the Choctaw Nation; and that at the same time and in the same manner was destroyed also the decision of said committee admitting Martha Arnold and children as citizens by blood of the Choctaw Nation. William B. Hailet. Subscribed and sworn to before me this the 11th day of May, 1914. F. M. Jones, Notary PuUio. My commission expires September 12, 1914. I would like also to offer the affidavit of J. N. Arnold. This is a printed copy of the original filed with the committee. The affidavit is as follows : In the matter of the claim of Jlartha Arnold and children for enrollment in th« Choctaw Nation. The petition of J. N. Arnold, of McAlester, Okla., on his own behalf and for other members of his family, respectfully shows : 1. Tour petitioner and his mother, Martha Arnold, was the original applicant for enrollment as a citizen of the Choctaw Nation, and the other members of his family, for all of whom he presents this petition, are the lineal descendants of Adam Lucas, a Choctaw Indian, who was a party to the treaty between the United States and the Choctaw Nation of 1S30, known as the treaty of Dancing Rabbit Creek; that the records of the Interior Department show and it appears on page 26 of Volume 1 (evidence) in the suit of the Choctaw Nation •;;. The United States that the said Adam Ijucas was a reservee under the nineteenth article of the said treaty of ISSO, and it is further shown by the records of said Interior Department that the said Adam Lucas removed to the Choctaw Nation west of the Mississippi and was first issued rations in the said Indian Territory on December 16, 1832. 2. And your petitioner further states that the said Adam Lucas, who was a full-blood Choctaw, had a daughter, Nancy Lucas, who was also a full-blood Choctaw, whose daughter, Martha Arnold, is principal applicant in this case, was and is a full-blood Choctaw Indif^n ; that the said Martha Arnold married one James Arnold, a white man, and her six children, one of whom is your peti- tioner, are Choctaws of the half blood. 3. Tour petitioner further states that Martha Arnold and her family had lived in the Choctaw-Chickasaw Nation and had always understood and be- lieved that their names were upon the tribal rolls of said nations, and so be- lieved until about the year 1894, when a question was made upon the Issuance of tribal grazing permits to one of the members of his family. That they did not then know the cause of the condition of the tribal rolls, whether their names had really been omitted or not, but In order that there might be no further question of this fact the members of said family of Martha Arnold in the year 1895 filed a petition for confirmation of their rights as Choctaw citizens with a special committee of the national council of the Choctaw Nation, which had been an act or resolution of said national council, but created a citizenship committee, with full power and authority to finally pass upon and settle the question of the citizenship by blood of certain applicants for citizenship. 4. Tour petitioner fu]'ther states that their application for citizenship came on for hearing before said citizenship committee in the month of November, 1895; that said citizenship committee was composed of five members, all of whom were also members of the national council of said nation, to wit: Small- wood Nelson, chairman ; Obla Sachubbee, J. W. Everidge, Billie Jones, and William Anderson; that David B. Roebuck, who was then national attorney for the Choctaw Nation, appeared before a committee and represented the ENEOLLMENT IN THE EIVE CIVILIZED TRIBES. lOT lation on the hearing of said application; that said committee, after hearing the testimony of the applicants and numerous other witnesses, found in favor of said applicants, and by virtue thereof the said applicants were thereby en- rolled as members of the Choctaw Nation. That the proceedings of said citi- zenship committee were preserved, but were later destroyed, as your petitioner is Informed and believes, in a fire which occurred in the office of J. H. Gordon, who was then attorney for the Choctaw Nation, during the pendency of the application for enrollment of petitioner and his family hereinafter 'described ; that the proceedings are, however, fully shown in the affidavits of Smallwood Nelson, chairman of said citizenship committee, and J. W. Everidge, a member of said committee, dated May 25, 1906, and June 16, 1906, filed In the Interior Department November 15, 1909, true copies of which are hereto attached and made part of this petition. 5. Your petitioner further states that the creation of such citizenship com- mittee, was within the power of the Choctaw National Council and in conform- ance with its laws and usages, and such committees were specifically recognized and confirmed in the act of Congress of June 10,1896 (29 Statutes at Large, 339), creating the Dawes Commission which contains the provision that " applicants might instead of applying to the Dawes Commission, apply to the legally insti- tuted court or committee designated by the several tribes for such citizenship." And further provided that if " any person be aggrieved with the decision of the tribal authorities for the commission provided for in this act, he may appeal from such decision to the United States district court. And in said act it was further provided that the said Dawes Commission, which " in determining all such applications * * * respect all laws of the several nations or tribes not inconsistent with the laws of the United States and all treaties with said nations and tribes, and shall give due force and effect to the rolls, usages, and customs of each of said nations or tribes." 6. Your petitioner further states that under said act of June 10, 1896, although as he is now advised, it was not necessary for them to apply to the Dawes Commission, because of the fact that their citizenship was confirmed by the said citizenship committee on November 12, 1895, the said Martha Arnold and children applied to said commission, and thereafter their applica- tion was pending before the United States court for the central district of Indian Territory; that the case was referred to a special master whose report now filed in the record of said court was in favor of the petitioners, whereupon in January, 1897, C. S. Venson, attorney general for the Choctaw Nation, filed in, the records of said case a confession of judgment on the part of the Choctaw Nation; that the said court thereafter ordered the enrollment of the said appli- cants. 7. That thereafter their case, with a large number of other cases, was reversed by the general decision of the Choctaw and Chickasaw citizenship court created by the act of July 1, 1902, and their application was finally rejected without any reason being assigned by the said Choctaw-Chickasaw citizenship court. 8. Tour petitioner further states that the said applicants had, after the recog- nition of their claims to enrollment, applied for allotment of certain lands in the Choctaw-Chickasaw Nation containing their valuable improvements, but bj . reason of the erroneous action of the court in setting aside their rights of citi- zenship without consideration of the particular facts of their case, particularly to the confirmation of their citizenship by the authorized committee of the Choctaw Nation, in November, 1895, and the confession of judgment in their favor by the duly authorized national attorney of the Choctaw Nation in Janu- ary, 1897, they have lost their property rights. 9. And your petitioner states that although the adding of their names to the Choctaw rolls at this time will not afford the applicants the complete justice to which they are entitled, because the lands which they had allotted and upon which their improvements are, have been otherwise disposed of, they respect- fully petition that their names be added to the rolls of citizenship of said nation • that since the action complained of they'^ have diligently prosecuted their demands in so far as has been possible; that they have repeatedly re- quested the Interior Department to consider their case upon the ground that the final rolls being closed, no further departmental action can be taken. Your petitioner states, however, that although the department has informally con- sidered and reported upon the cases of a large number of persons whose name* were erroneously omitted from the final rolls of said tribes, it has not con- sidered or reported upon the case of these applicants. 108 ENEOLLMBNT IN THE FIVE CIVILIZED TRIBES. In consideration of the foregoing your petitioner respectfully requests that the foregoing matters may be investigated and that the names of Martha- Arnold and her children may be ordered placed on the final rolls of the said nation as citizens by blood. Jones N. Arnold. State of Oklahoma, Pittsburg County: Personally appeared before me this 5th day of April, 1913, Jones N. Arnold, who, being duly sworn, on oath deposes and says that he has read the foregoing petition by him subscribed, and that the facts therein are true. [SEAL.] Ed. Cole, Notary PubUc. My commission expires July 8, 1914. Mr. Arnold. The department's report of April 25, 1914 — I have a copy of it here — the first report it has made with the record before it, deals rather extensively with the facts, while the Larrabee report of June 28, 1905, dealt almost exclusively with the law. So the Larrabee report refers to the confession of judgment above quoted, but does not go into the facts as does the report of April 25. This is the first report that the department has ever made with the records before it. Now, as you will notice, I read an excerpt from the Lar- rabee report, which said that they never had tribal recognition, but you will find from reading the affidavits of Everidge, Nelson, and Hailey that we did have tribal recognition. Also, the attorney general, the higest law officer for the Choctaw Nation, filed con- fession of judgment. This latter report, of April 25, 1914, deals with the history of the case, which is imperfect. The report attempts to deal with the history of the Martha Arnold citizenship case, and commenting on the decision of the United States Court for the Central District of the Indian Territory, the department says Mr. Post (interposing). Are you one of the children of Martha Arnold? Mr. Arnold. Yes. Mr. Post. How many children were there? Mr. Arnold. Six. The department says in this report of April 25, 1914 [reading] : Judge Springer refers to the fact that Martha Arnold appeared in his court to testify in her case and notice was taken of her appearance, especially as to her hair. He said that if there were no other evidence in the case than that of the complexion, hair, and general physical features, . it would be conclu- sively established that the principal claimant, Martha Arnold, was not a Negro, and that no person who was so dark in complexion and whose hair was so straight, long, and black, could possibly be a Negro or have any Negro blood, and that her every feature and physical condition proved conclusively that she was an Indian. I am reading an excerpt from the department's letter, addressed to Mr. Stephens, chairman of the House Committe on Indian Affairs, April 25, 1914, in which the department is quoting Judge Springer's comment on the appearance of Martha Arnold at the time she ap- peared in his court. Mr. Carter. Have you recently had some report from the depart- ment? Mr. Arnold. Yes ; I am referring to that now. I would like also to read Judge Springer's conclusion [reading] : The United States Court for the Central District of the Indian Territory expressed the opinion that, after carefully weighing all the evidence and- con- sidering all the circumstances in the case, the principal applicant, Martha ENEOLLMENT IN THE FIVE CIVILIZED TRIBES. 109 Arnold, was a Choctaw Indian by blood, and that she and her children were citizens of the Choctaw Nation, and it was so ordered and adjudged by the court. The judgment referred to also included certain grandchildren. On the other hand, Judge Walter L. Weaver, in his opinion rendered in 1904 in the Choctaw and Chickasaw Citizenship Court, which opinion was concurred in by the other judges of said court, said that it was not necessary for him to form or express an opinion as to the blood of Martha Arnold, but that he was of the opinion that there was not sufficient evidence to satisfy him that she was of Choctaw Indian blood, or as such that she . and her descendants were entitled to enrollment as citizens of the Choctaw Nation. This report contrasts the decision of Judge Springer, who has ever been recognized an able jurist; his decisions and career never having been criticized, and who was once a Democratic Member of the House of Representatives — this report, as I was about to say, contrasts Judge Springer's decision in the Arnold case with the decision of Judge Weaver, of the citizenship court, in this language [reading] : On the other hand. Judge Walter L. Weaver, in his opinion rendered in 1904 in the Choctaw and Chickasaw citizenship court, which opinion was con- curred in by the other judges of said court, said that it was not necessary for him to form or express an opinion as to the blood of Martha Arnold, but that he was of the opinion that there was not sufficient evidence to satisfy him that she was of Choctaw Indian blood, or as such that she and her descendants were entitled to enrollment as citizens of the Choctaw Nation. Mr. Carter. Is that a letter from the department that you are reading? Mr. Arnold. Yes ; this is a copy I am reading from. Mr. Carter. I would like to see that if you are through with it. Mr. Arnold. I am not through with it, but you can have it in a minute. Now I would like to read from page 122 of Senate Document No. 1139, Sixty-second Congress, third session, " Eeports of the Depart- ment of the Interior and evidentiary papers in support of S. 7625,_a bill for the relief of certain members of the Five Civilized Tribes in Oklahoma " [reading] : This agreement also made provision for a court, known as the Choctaw and Chickasaw citizenship court, which was created for the purpose of reviewing decisions heretofore rendered by the United States courts for the Indian Terri- tory admitting applicants to enrollment upon appeal from decisions rendered by the Dawes Commission under act of June 10, 1896 (29 Stat, 321). The provisions creating this court and prescribing its duties are to be found in sections 31, 32, and 33 of the said act of July 1, 1902. These sections were given immediate effect, whereas the agreement, taken as a whole, was held over to await the ratification of the tribes. Now, the fact is that the sections creating the citizenship court were never presented to the Choctaws and Chickasaws for their sanction at all. It was created by the attorneys representing the tribe at that time for the purpose of carrying out a scheme of their own ; to strike down certain members of the tribe for the purpose of fees [reading].: The decisions to be reviewed by the court were rendered by the United States courts in 1898 or thereabouts, and the law which authorized such decisions declared that the same should be final. As a result, there was a period of approximately four years of repose, during which the court claimants had every reason to believe that their rights were finally settled and that they could safely invest their means in building homes and improving the land occupied by them. That is just exactly what the Arnold family did. They went out and improved their homes, improved their farms, and, notwithstand- 110 ENROLLMENT IN THE FIVE CIVILIZED TEIBES. ing the fact that they had been admitted to citizenship by the Choc- taw Council and admitted by decision of the United States court for the central district of Indian Territory, this was all taken away from us by the citizens court [reading] : The character of much of the enrollment legislation has been such as to cause the rights of many Indian applicants to be adjudicated upon jurisdictions and technical, rather than meritorious grounds, and nowhere is this more apparent than in the Sections relating to the citizenship court. Under the head- ing "Act of June 10, 1896," I have pointed out the confusion which resulted during the last days of the enrollment work, just prior to March 4, 1907, be- cause of the difference of opinion between the Department of the Interior and the Department of Justice as to whether the Commission to the Five Civilized Tribes had, under the act last referred to, jurisdiction to consider the case of any person theretofore enrolled or otherwise duly recognized as a citizen. This question did not stop with the decision of the Dawes Commission, and the De- partment of the Interior was required later to determine whether it would enroll certain claimants who had at one time been parties to the suits in the United States courts. Some of these persons were afCected only by the blanket decision in the Riddle case and had never made any effort to transfer their cases to the citizenship court. There were others who, following the decision in the Riddle case, transferred their cases to the citizenship court, but were there, by specific judgment, denied enrollment. The Department of the Interior adopted the view that, if the Dawes Commission had no jurisdiction in any specific case, it followed that the United States courts on appeal were also with- out jurisdiction therein. This conclusion was based upon the reasoning that an appellate court must necessarily be confined to cases coming properly before the lower court. The attorneys for the Choctaw and Chickasaw Nations also urged, in certain cases, that the decisions of the courts, for or against any person, were without force or effect in the case of persons having a tribal status prior to the act of June 10, 1896. Now, on page 125 of the same document [reading] : There is another feature of the decisions of the citizenship court which I desire to bring to your attention. It has been given out frequently and with much publicity that there was great fraud on the part of citizenship applicants. But after careful examination of such decisions — And I want to say at this point, if you will find the full proceed- ings of the Arnold case you will never find the question of fraud raised anywhere. Mr. Campbell. You say that by resolution of the council and by order of the court the Arnold family was enrolled as citizens of the Choctaw Nation. Were they then taken off the rolls by decision of the citizenship court? Mr. Arnold. The Arnolds first made application to the Choctaw Council for enrollment as Choctaw citizens, and the Choctaw Council, by general legislation, created a committee composed of five members of the council. Mr. Campbell. I understood you to say that the council was favor- able to the Arnold family. Mr. Arnold. Yes. Mr. Campbell. Well, did they adopt a resolution enrolling the Arnolds ? Mr. Arnold. Yes; as set forth in the affidavit of Mr. Hailey. Mr. Balli.\ger. Did the Choctaw Council enroll you? Mr. Arnold. Yes. Mr. Carter. Now let me get that clear. If your statement is cor- rect, then 1 have been laboring under a misapprehension. Did not the Choctaw Council- appoint a commission to investigate citizenship cases, and this was one of the cases investigated ? ENEOLLMENT IN THE FIVE CIVILIZED TBIBES. HI tl,^„ffl:^^^?^°•J!'?^^*■^?T'"'"^® P^^^®*^ "Pon the case, as set forth in the affidavits of Mr. Nelson and Mr. Everidge and Mr. Hailev Mr aIn^ld yZ' *^^''' *^^ ^°"™^**«e investigated your case? Mr. Carter. And reported favorably on it? the did^so"''''' '^^^ <^o°™i"ee had full authority to admit us, and Mr. Carter. Does the act give the committee authority to admit you without any subsequent action by the council? Mr. Arnold. Yes; it was a joint resolution of both houses of the Ohoctaw council. Mr. Carter. It gives the committee final action? Mr. Arnold. It gave them final action, final iurisdiction, as set forth m those affidavits. That is the purpose of these affidavits, to show that the record was incorrectly stated. Mr. Carter. Have you got a copy of the act ? Mr. Arnold. No. The only copy that we had was attached to the ongmal application, which was burned in the office of the attorneys for the nation. Mr. Campbell. The only copy of the law would not be burned, would it? Mir. Carter. The original copy would not be burned, because it would be in the archives of the nation. Mr. Arnold. I understand that all proceedings with reference to the Arnold case were destroyed, either by fire, accidentally, or inten- tionally. Mr. Carter. Is there not a reference to it in the department's report? Mr. Arnold. Yes; I am coming to that later. I will come to all those points a little later. Now, I was reading from page 125 [reading] : But after careful examination of such decisions I find that the cases of a large number of the applicants fall within the ruling in a few leading de- cisions, which turn solely upon construction of law — decisions in which the citi- cenship court stands practically alone. Faith in the judicial fairness of this court has been affected (1) by the Important part which Messrs. Mansfield, McMurray, and Cornish took in secur- ing the legislation to which the court owed its existence and the judges their positions, and (2) by the fact that, following the refusal of Secretary Hitchcocis to allow said attorneys a fee in excess of $250,000,- there came a sudden change of law, under which the citizenship court was authorized to fix their fee, and being so authorized, did allow a fee of $500,000 in excess of the above amount. These facts are not conclusive evidence of intentional wrong and should not of themselves be so construed; but they do show a condition under which even a judge of the best of intentions, moved by sentiments of gratitude and good will, might unconsciously become unfitted to dispense justice. Upon the whole, I am constrained to believe that the leading decisions of the citizens' court should be reviewed by some other tribunal. It is not surprising that Judge Weaver could not be satisfied that there was not sufficient evidence before him to satisfy him. None are so deaf as those who will not hear. Do you believe sufficient evi- dence could be produced to " satisfy " the Anheuser Brewing Co. or the Busch Brewing Co. or any of these large brewing companies that nation-wide prohibition was a good thing? Why, certainly not. _ Mr. Campbell. But they say they sell more liquor in prohibition territory than they do where they do not have prohibition. 112 ENEOLlJWEN'i tN THE FIVE CIVILIZED TEIBES. Mr. Hill. According (o the documentary evidence I am getting from them, they ar<> ovidoutly not for it. Mr. Arnold. Th(^ dt-paittnent, in its report of April 25, 1914, says further, on page 6 | rciidiiig] : Said Choctaw and Cliickiisjiw citizenship court, therefore, found that tJie appli- cants were not entitled lo he deemed or declared citizens of the Choctaw Nation or to enrollment as siii-li, m to any rights whatever flowing therefrom. The petition of the plaintiffs in llie case was therefore denied. Judge "Weaver, of t\w citizenship court, said it was not necessary for him to form or express an opinion as to the blood of Martha Arnold, but that he was of the opinion that there was not sufficient evidence to satisfy him (liat she was of Choctaw Indian blood. I want to read now from the Congressional Record of February 28, 1911, page 3855. This is the report of Mr. Burke, chairman of the special committee a]ipointed under House resolution 847 to in- vestigate the circumstances connected with certain contracts between J. F..McMurray and certniii Indian tribes [reading] : The service rendered thei-ewilh bj' Mansfield, McMurray & Cornish was re- quired under their contract of geiicnil employment. While employed and paid as stated they obtained iiiforniiitioii as to enrollment upon which later was based the tribal contention Unit niaii.v persons had been wrongfully and Illegally enrolled, notwithstanding tlic fact that the proceedings which led to their en- rollment were conducted in iicccirdaiice with due process of law and thfe final order of their enrollment was decreed by a United States court. They there- fore entered into a contract with I ho (wo nations by wtiich they were to receive 9 per cent of $4,800 Mr. Carter. Whose remarks are you reading? Mr. Arnold. Mr. Burke, chairman of the subcommittee appointed to investigate the matter. Nine per cent of $4,800 for each person enrolled whose name they could eliminate from the rolls. (See lestiniouy, p. 674.) There was no way by which persons so enrolled — locally known as court citizens — could be eliminated law- fully from participation in the (ribal estate. The treaty negotiated in 1901, before referred to, and approved July 1, 1902, originally contained no provision authorizing the elimination of the so ciilled court citizens. After the agreement had been duly signed by the representatives of the two nations and by the representatives of the Government, and after it was trans- mitted to Congress for ratiflcatioii and ajiproval. sections 31, 32, and 33 were inserted at the request of McMurray, which sections are predicated on the assumption that the United States courts in the Indian Territory, acting under the act of June 10, 1896, had adiiiitted persons to citizenship in the Choctaw and Chickasaw Nationswithout notice lo bothof said nations. * * * The act provided that it should nol be effective until submitted to and rati- fied by a vote of the two nations, bnl pxcei)tlon was made as to sections 31, 32, and 33, creating the citizensliip coiit-l, which became effective upon the passage and approval of the act. (See te^■'liDlony, p. 675.) Immediately following the passage of the act ratifying the agreement of 1902 the judges authorized to be appoinled to constitute the citizenship court were appointed as follows: Spencer Ad.ims, of North Carolina; Henry S. Foote, of California; and Walter L. Weavei', of Ohio. Judge Foote appears to have been appointed upon the recoininendation of Senator Stewart, who was then chairman of the Senate t^iinmiKce on Indian Affairs, and Judge Adams on the recommendation of Sen.Mloi I'lilchard, of North Carolina. Judge Foote was the brother-in-law of Sen.itoi Slewart. (See testimony, p. 675.) The law creating this court is withoiil h'gl>latlve parallel; the manner of its enactment was extraordinary, and tlic aiillmiity which it conferred upon the court it created is without precedent in Amerirjin jurisprudence. . That tells US why Judge "Wea vol' could not be "satisfied." I call your attention to the outstanding fih-l that the nations did not rec- ommend sections 31, 32, and 33 of Ih. act of July 1, 1902. The in- ENROLLMENT IN THE FIVE CIVILIZED TEIBES. 113 stigators of the same dared not submit them to the nation for ap- proval. It was simply the white man's scheme to enrich himself at the expense of the Indian, and Congress was the tool by which he was enabled to accomplish this heinous robbery. Neither the Choctaw Nation nor the department believed the ter- rible position taken by the attorneys for the nation. I am speaking now of the position taken by the attorneys for the nation in which they took the position that we were not Choctaws. My sister was enrolled as an intermarried citizen without objection. I want to read here from the hearings on H. E. 19279, H. R. 19552, and H. E. 22830, Sixty-first Congress, second session, page 291 [reading :] Sec. 7. Be It further enacted that intermarriage with such freedmen of African descent who were formerly held as slaves of the Choctaws and have become citizens shall not confer any rights of citizenship in this nation, and all freedmen who have married, or may hereafter marry, freedwomen who have become citizens of the Choctaw Nation are subject to the permit laws, and allowed to remain during good behavior only. Now, there is the act of 1883. The Chairman. Now, that does not refer, if I have followed it, to the negroes— that is, the Indians of mixed Indian and negro blood — but just simply to all freedmen ? Mr. Hill. Yes; to that particular class named in the bill. But, following that, in 1885 the Choctaws passed a law which provided and made unlawful marriage between an Indian and a negro. The Chairman. Have you that act? Mr. Hill. Yes, sir. Mr. Saunders. Have they no definition in that statute as to what a negro is? Mr. Hill. No, sir. I am going to begin back further and read to you a number of their laws passed years before. Colonel. Mr. Saunders. What I meant was what proportion or strain of negro blood would make a negro. Most of that, you know, is a mat- ter defbitely Iniown in the United States. Mr. Hill. No, sir ; there was no such law. I have that law of 1885 here, Mr. Chairman. Here is the law. This was passed m Novem- ber, 1885. It is in Durant's Digest, and stamped with a rubber stamp as of October, 1888, but that is merely a compilation. The original law was passed a few years before that. The Chairman. By whom ? . -,,.1^.1 Mr. Hill. The Choctaw Council passed this act declaring unlawful the intermarriage between Choctaws and negroes: [Durant, p. 206.1 Sec. Ylll.— Intermarriage beticeen Choctaws and negroes. Be it enacted Dy the general oounoU o'f the Choctaw Nati^ rSw ma" shall not be lawful for a Choctaw and a negro to "^^rry; and if a Choctaw man or a Choctaw woman should marry a negro man or negro woman, he or she Shall be deemed guilty of a felony, and ^.l^^ll '?^P'°'^f,^;^/?f °fl^Ther feSs court of the Choctaw Nation having jurisdiction, the same as all otner leionifs are proceeded agS, and if proven guilty shall receive 50 lashes on the ba.e The Chairman. That makes no reference to the offspring of si> H a union? 64969—15 a 114 ENEOLLMENT IN THE FIVE CIVILIZED TEIBES. Mr. Hill. No, sir. But, of course, if the contract of marriage is invalid, I take it that the The Chairman. Does that say it is invalid? Mr. Hill. It says it shall be unlawful. Besides, of course, Mr. Chairman, you can not give such a fixed technical construction to the law passed by those people as you might give to legislation passed by a State of the Union, and it is frequently necessary, in order to ascertain the exact meaning that may be given to one of their laws, to trace their customs and usages and determine from them what they meant. Now, I find in the constitution and laws of the Choctaw Nation of 1840 an act approved in 1838. I find this provision: Sec. 6. From and after the adoption of the constitution no frgfe negro or any part negro unconnected with Choctaw and Chiclcasaw blood shall be permitted to come and settle in the Choctaw Nation. Sec. 14. No person who is any part negro shall ever be allowed to hold any office under this government. Sec. 15. The general coTincil, when in session, shall have the power, by law, to naturalize and adopt as citizens of this nation any Indian or descendants of other Indian tribes except a negro or descendant of a negro. Now, I want to offer at this time a certified copy of the Choctaw roll, citizens by marriage, No. 1354, Elizabeth M. James, and the tes- timony taken in the matter of application for enrollment of said Elizabeth M. James. The papers referred to are as follows : [Department of the Interior, rommissioner to the Five Civilized Tribes. Choctaw roll, citizen,? by marriage. No. 1 .".'54 ; name, Elizabeth M. James ; age, 41 years ; sex, female ; blood, IW ; card No. 4858.1 This is to certif.v that I am the officer having custody of the approved roll of citizens by marriage of the Choctaw Nation and that the above and foregoing is a true and correct copy of that portion of said roll enrolled as of September 25, 1902. Muskogee, Ind. T. (post office, Bokoshe, Okla.). J. Geo. Weight, Commissioner to the Five Civilized Trilies. By W. H. Angell, Clerk. DErARTlIENT OF THE INTERIOR, Commission to the Five Civilized Tribes, Muskogee, Ind, T., November 9, 190^. In the matter of the application for the enrollment of Elizabeth M. C. James as a citizen by intermarriage of the Choctaw Nation. W. F. Rampendahl, attorney for applicant, Muskogee, Ind. T. Elizabeth M. C. James, being duly sworn, testified as follows : Examination by the Commission : Q. What is your name? — ^A. Elizabeth M. C. James. Q. How old are you? — A. Forty-three. Q. What is your post-office address? — A. Bokoshe. Q. Do you appear to-day as an applicant before the commission as a citizen by intermarriage of the Choctaw Nation? — A. Yes, sir; by intermarriage. Q. Through whom do you claim your intermarried rights? — ^A. Silas W. James. (Silas W. James, through whom the applicant claims her intermarried rights, Is identified upon Choctaw field card No. 263S, and is No. 7667 upon the lists preparcMl by this commission of Choctaws by blood and approved by the Secre- tary of the Interior January 17, 1903.) Q. Yon do not claim rights as a citizen by blood? — A. No, sir. Q. Didn't you make application when your mother did — she is a citizen by blood?— A. Yes, sir. BNEOLLMENT IN THE FIVE CIVILISED TBIBES. '11% Q. Didn't you claim the same right as she did?— A. Said I would have to wait. Q. You did apply to the commission in 1896 as a citizen by blood? — A. Yes, sir. Q. You were denied by the commission and an appeal taken to the United States court? — A. My mother — she put my name in that case. Q. And your case was certified to the Choctaw-Chieasaw citizenship court for a trial de novo? — A. Yes, sir. Q. And you were denied by the Choctaw-Chieasaw citizenship court on Octo- ber 25, 1904?— A. Yes, sir. Q. Now you appear as an applicant for enrollment as a citizen by intermar- riage? — ^A. Yes, sir. (The applicant, Elizabeth M. C. James, was denied citizenship in the Choc- taw Nation by the Choctaw-Ohiclcasaw citizenship court on October 25, 1904, in the case entitled Martha Arnold et al. v. The Choctaw and Chickasaw Nations, case No. 97, upon the South McAlester docket of said court. She was denied as Elizabeth James (n6e Arnold) or Elizabeth M. James (n6e Arnold). Q. Your mother's name is Martha Arnold ?--Yes, sir. Q. When were you married to Silas W. James? — A. Eleventh of January, 1883. Q. At the time of your marriage to Silas W. James where did you reside? — A. Skullyville County, Choctaw Nation. Q. What nation was your husband, Silas W. James, a resident of? — ^A. Skullyville County, Choctaw Nation. Q. He is a citizen by blood of the Choctaw Nation? — A. Yes, sir. Q. By whom were you married? — A. Parson Austin, of Muskogee. Q. Was he a minister of the Gospel ? — ^A. Yes, sir. Q. Did you have a certificate? — A. Yes, sir. Q. Got it with you? — A. Yes, sir [witness produces marriage certificate]. Q. You present now to the commission what purports to be a marriage cer- tificate between Silas Jaines and Elizabeth M. .C. Arnold, which purports that these two persons were married on January 11, 1883. Is that Silas James the Choctaw Indian tirough whom you claim your intermarried rights? — ^A. Yes, sir. Q. Is the Elizabeth M. 0. Arnold mentioned in this certificate yourself? — ^A. Yes, sir. Q. Where were you married? — A. Skullyville County, Choctaw Nation. (Marriage certificate filed and marked " Exhibit A.") Q. Was Silas W. James your first husband? — A. Yes, sir; first and last. Q. Were vou married before you were married to Silas W. James?-^A. No, sir. Q. Neither of you had a living spouse at the time you we^e married to each other? — A. No, sir. Q. From the time you were married to Silas W. James did you and he live together as husband and wife up to and including September 25, 1902?— A- Yes, sir. Q. Any separation, abandonment, or divorce during that time?— A. No, sir. Q. Where did you and he live together as husband and wife? — A. Skully- ville County, Choctaw Nation. Q. Have you made your home during that time anywhere else besides the Choctaw Nation?— A. No, sir. By Mr. Eampendahl : Q. State whether or not at the time you applied to the commission for en- rollment on a prior occasion, at Spiro, whether you introduced any evidence— the original certificate of your marriage?— A. Yes, sir. By the Commission : Q. Is Parson Austin living to-day?— A. He is dead, so I heard; used to be pastor here at Muskogee. Q. How long ago?— A. In 1893. Q. What denomination?— South Methodist. _ Q Do you know of your own knowledge that he was a mmister oi the Gospel?— A. Yes, sir; for I jined the church under him. JosiE Davies, being duly sworn, states that as stenographer to the Commis- sion to the Five Civilized Tribes she reported the proceedings had in the above- entitled cause on the 9th day of November, 1904, and that the foregomg Is a 11;6 ENKQLLMENT IN THE FIVE CIVILIZED TRIBES. rmi, true, and correct transcript of her stenographic notes taken In said cause on said date. JosiE Davieb. Subscribed and sworn to before me this 9th day of November, 1904. Chables H. Sawtek, Notary Public. This is to certify that I am the officer having custody of the records per- taining to the enrollment of the members of the Choctaw, Chickasaw, Cherokee, Creek, and Seminole Tribes of Indians, and the disposition of the land of said tribes, and that the above and foregoing is a true and correct copy of the testi- money taken in the matter of the application for the enrollment of Elizabeth M. C. James as a citizen by intermarriage of the Choctaw Nation on November 9, 1904. J. Geo. Wright, Commissioner to the Five Civilized Tribes, By W. N. Angeli,, Clerk, Mr. Arnold. You will see from that that she did not conceal the fact that she was the daughter of Martha Arnold, and, according to the contention of the attorneys for. the nation, it would have been a physical impossibility under the law to enroll her as an intermarried citizen. Mr. Carter. Why? Mr. Arnold. Because under the Choctaw law no person of African blood could be enrolled as an intermarried citizen. Mr. Carter. Have any other members of your family been en- rolled? Mr. Arnold. No, sir. Having always been recognized as Choc- taws ; having been admitted by the tribe to citizenship in the nation in Oklahoma, and by decree of the United States court, we spend large sums of money purchasing improved farms and further im- proving them ; all of which was wrenched from us through the deci- sion of the citizenship court. Also we were forced to spend thou- sands of dollars defending our rights in tribunals created by white njen and presided over by white men. Yet this is not the point, for — Who steals my purse steals trash ; But he who filches from me my good name Robs me of that which enriches him not, Yet leaves me poor, Indeed. Since the closing of the rolls I have been continuously striving for relief for my family and the Mississippi Choctaws. Through my efforts, in cooperation with Hon. J. K. Jones, whom I had employed, Senator Owen offered an amendment to bill H. E.. 15641 on May 13, 1908. I would like to call attention to that right now. Here is the amendment that Senator Owen offered. I am reading from page 6476 of the Congressional Eecord, dated May 13, 1908. This was a new section that it was proposed to insert at the end of the bill [reading] : Seo. 15. That for six months after the approval of this act the Secretary of the Interior be, and he is hereby, authorized and directed to enroll as members of either the Choctaw, Chickasaw, Cherokee, Creek, or Seminole Tribes such persons as the records in his office may show were wrongfully omitted from the rolls of either of said tribes by reason of error of law or of inadvertance or because of want of time to properly consider their applications for enrollment, and he may consider any evidence heretofore filed for or against such appli- cants, and the said Secretary is further authorized, in any case where he Is ENEOLLMENT IN THE FIVE CIVILIZED TEIBES. 117 satisfied from the evidence and records in his office that a member was wrong- fully enrolled as a freedman and should have been enrolled as an Indian, to transfer said member from the approved freedman roll to the roll of citizens by blood of such tribe : Provided, That in suits brought to restore the names of persons struck from the final rolls of the Five Civilized Tribes, the Secre- tary of the Interior, as defendant, may offer as a defense the record to show that such name had been erroneously placed upon such roll, and the name of no person shall be restored to such roll who was not originally entitled under the law to have been "enrolled, and the burden of proof in such cases shall.be upon the Secretary of the Interior : Provided further, That the children of Choctaw freedmen entitled under the act of April 26, 1906, to make application under that law, and who failed to apply for lack of proper notice, shall have 90 days from and after the passage of this act within which to make such application, and such application shall have the same effect as If it had been made within the time originally proposed by such law. Then that same year I had the matter up with Eepresentative Adam Byrd, and he secured for me a very full history of the Mis- sissippi Choctaw question. I think Mr. Richardson offered that letter the other day when he was before the committee — the letter of Commissioner Leupp to President Eoosevelt, dated March 18, 1908, but I will insert it here. (The letter referred to is as follows :) White House, Washington, March 18, 1908. Mt Deab Congressman : Referring to your letter of the 7th Instant, in regard to the condition of the Choctaws in Mississippi, the inclosed very interesting communication of Commissioner Leupp explains itself. Will you see Mr. Leupp and try to reach him with an agreement as to what can best be done to relieve the condition of these Choctaws, and then let me know? I will do all I can to aid you to secure the passage of a measure of relief. I thank you for the course you are taking in bringing up this matter, the urgency of which I keenly appreciate. Sincerely, yours, „ Theodore Roosevelt. Hon. A. M. Byrd, Souse of Representatives. Department op the Interior, OrFiCB of Indian Affairs, Washington, March 16, 1908. Thp President * I have received Secretary Loeb's note of March 10, submitting letter of Hon. A. M. Byrd, House of Representatives, regarding the need of relief for the Choctaws remaining in Mississippi and asking for my views as to whether any- thing can be done for them. , , ... -.t--™!™ Mr Byrd says that the four or five hundred Choctaws remaining in Missis- sippi are In a destitute condition, and believes that some provision should be ""if is"rife"asTI"ays. that the Choctaws In Mississippi are in a forlorn Dlleht TheV represent that element which refused to accompany the large part of the tribe when removed by the Government in 1831-1833 to Indian Ter- ?ftorv under the treaty of 1830. Under the fourteenth article of the treaty the SviLge of remaTnfni and taking land was reserved to those who saw fit to conform to ItsTequirements, and 3,000 or more remained; but through miscon- duct on the part of representatives of the Government and the violence and fraud resorted to by white men who coveted the lands, hardly any of them Sed the reserved land to which they were entitled. The pressure on the Government from the people of Mississippi to secure the removal of the Indians walso great tMt It continued its efforts to transfer the remaimng Choctaws o their country west, and their emigration was in progress during most of the yelrs from 18^7 to 1855. In 1855, when the removal policy was abandoned. 118 ENROLLMENT IN THE FIVE CIVILIZED TRIBES. there were possibly 2,500 of the Indians east of the Mississippi in the States of Alabama, Mississippi, and Louisiana. Under the act of Congress approved June 28, 1898 (30 Stat. L., 295), pro- vision was made for the " identification " of Mississippi Choctaws claiming descent from ancestors who complied with the fourteenth article of the Choctaw treaty; and in the Choctaw-Chickasaw agreement approved July 1, 1902 (32 Stat. L., 641), it was provided that persons so identified should remove to and make settlement in the Choctaw-Chickasaw country in Indian Territory within six months from date of identification. Representatives of the Commission to the Five Civilized Tribes visited the State of Mississippi and proceeded with the work of identification. No provision at that time had been made for trans- portation of the Indians to the Choctaw-Chickasaw country or for their sub- sistence after they arrived there; neither was there any provision, financial or administrative, for locating, them on particular tracts of land. Subsequently, Congress appropriated $20,000' to aid in the removal of Mississippi Choctaws, which was expended by the -Commission to the Five Civilized Tribes, and a relatively small number of those identified were transported west and subsisted for a short time in Indian Territory. The majority of those who did reach Indian Territory were either trans- ported at the expense of private parties under contracts made with the Indians or removed themselves on their ovrai resources. Several hundred of those who were identified never reached the Indian Territory or made proof of settle- ment there, and some who were removed, owing to the lack of financial re- sources, found the conditions they faced in the West worse than those they left, and returned to Mississippi. It is fair to presume that many of them did not go because they were unable to secure funds with which to remove. Because the measures meant to be advantageous to the Indians were in some respects inadequate or incomplete, they failed to bring the relief that was anticipated. Social feeling has been especially strong among those Choctaws who re- mained in Mississippi. They have not mixed in marriage with the whites and negroes to as great an extent as the Indians who removed to Indian Territory, and the larger part still are full-blood Choctaws. Many are unable to speak the English language, and to find one who can read is a rarity. They have lived in small settlements, holding aloof from white men as much as pos- sible, although employed almost exclusively on the plantations, and in many respects, growing out of its social condition, they have retrograded even from the not very advanced condition of their people as it existed in 1830. Shun- ning the white men to so great a degree, they have lacked the opportunity of learning business methods and agricultural skill that has been enjoyed by the negroes who were formerly slaves, with the result that they are more unde- veloped in business and productive capacity, have lived more poorly, and in the main have sunk to a lower level in every respect than the former slaves and their descendants. After 70 years of separation from the main body of their tribe they have failed to profit by being surrounded by white men, and have acquired only a small degree of civilization. They have shown no disposition to send their children to school and apparently have not been encouraged to do so. They do not care to mix with the negroes, and it is questionable whether their children would be received in the white schools. Mr. Byrd is correct in painting them in his speech before the House of Repre- sentatives as being in a deplorable condition. They abandoned their tribal brethren and refused through many years to go West where they might share in the tribal property. But their conduct in that regard grew out of their ignor- ance and their indisposition through timidity to forsake that with which they were familiar and could endure, for new surroundings and new industrial and social conditions under which they feared they might not be able to succeed. They have no special claim on the Government, unless it be based on the ground that through the misconduct of the Government representatives they or their ancestors were deprived of the land in Mississippi to which they were entitled under the treaty, or because as Indians they have a natural right to the pro- tection of the Government. Throughout the last 50 years the office has peri- odically received petitions for the relief of those Choctaws, but nothing has ever been done, except the opportunity accorded them to go to the Choctaw Nation West. Under the act of Congress approved February 8, 1887 (24 Stat. L., 388), as amended February 28, 1891 (26 Stat. L., 794), a provision is made for allot- ENKOLLMENT IJJ^ THE FIVE CIVILIZED TRIBES. 119 Drivlleei'o/snpjf t'^.T'*'" .^'"^''"'^ ^^° abandon the tribal status, and it is the s" situated finano^«nr' *^ ^^""^ advantage of that law, but the Choctaws are tn ^Ptnn «n i^H„„ ^; ^^^ ^^ entirely, lacking in the intelligence necessary ,^.!!L^F T Independent establishment that it is questionable whether any m!^f yf.Ho .^^rf™"^^"' "'S^^ ^""^^ *^°^^'''g possible their settle- ment under that law would be of real advantage to them. Certainly this aw could not be made beneficial unless very careful supervision were main- tamed over them for at least a generation. These Indians have no skill in any agricultural pursuit except cotton raising, and the Government has no public lands available within the cotton-growing States. Another solution of the problem might be the purchase from the unallotted lands of the Choctaws and Chickasaws of a sufficient tract to settlement them In Oklahoma, where they would be able to come in contact with the more in- telligent members of their tribe, and this would also necessitate an expendi- ture of considerable money and the supervision of their affairs for some time to come. The only other solution that occurs to me would be the purchase of lands for these Indians In Mississippi, where they would be surrounded by the conditions under which they have always lived, so that they may own their lands and maintain their own establishments. I shall certainly be glad to do anything in my power to aid in a solution of this difficult problem. Very respectfully, F. B. Latjpp, Gonmiissioner. The next year, May 10, 1909, 1 had Pat Chitto brought to Meridian to testify with reference to the condition of the Mississippi Choc- taws, and the causes of their condition. It had been represented to President Taft that the rolls were com- plete, and that all funds of the tribe should be immediately disbursed. This impelled me to advise him fully in letter of April 14, 1910, a copy of which Mr. Richardson has already placed in evidence. That same year, December 7, 1910, myself and associates, Messrs. Ealston, Siddons & Richardson, filed a brief in behalf of the Mississippi Choc- taws, and day after day, week after week, month after month, and year after year I have served them. In view of the fact that these claims of the Mississippi Choctaws called for the rendition of services to them as a class, and that it is the custom for contracts affecting a tribe of Indians to be executed by a business committee of such tribe, and ultimately submitted to the Court of Claims or the Interior Department for the allowing of a reasonable amount to cover the services and expenses of their counsel, and furthermore, believing that it is for the best interests of the Mississippi Choctaws to be so, organized, in April and May, 1913, the Choctaws of Mississippi, Alabama, and Louisiana held meet- ings in their respective communities and selected delegates to rep- resent them in a general council held at Meridian, Miss., on May 10, 1913, and at that meeting the delegates representing all the commu- nities of the Mississippi Choctaws organized a council, elected ofScers, and took proceedings on behalf of all the Mississippi Choctaws. Now, here is a booklet entitled "Proposed Legislation for the Full Blood and Identified Choctaws of Mississippi, Louisiana, and Alabama, with Memorial Evidence and Brief," which I would hke to file. This is a result of the meeting of May 10, 1913, and I have sent a copy of it to the President, to the Secretary of the Interior, to the chairman of the House Committee on Indian Affairs, and to the chairman of the Senate Committee on Indian Affairs.- 120 ENBOLLMENT IN THE FIVE CIVILIZED TRIBES. (The document referred to follows:) PROPOSED LEGISLATION FOK THE FULL-BLOOD AND IDENTIFIED CHOCTAWS OP MISSISSIPPI, LOUISIANA, AND ALABAMA, WITH MEMORIAL, EVIDENCE, AND BRIEF. [Sixty-third Congress, first session.] A BILL For the enrollment of certain Choctaw Indians heretofore identified, and for the settlement of their claims and for other purposes. Be it enacted hy the Senate and House of Representatives of the United States of America in Congress assemUed, That the Secretary of the Interior be and he is hereby authorized and directed to prepare a supplemental roll of Mississippi Choctaws to be so referred to and designated, which said roll shall be prepared in the following manner : First. There shall be placed upon said supplemental roll of Mississippi Choc- taws the names of all persons duly identified as Mississippi Choctaws entitled •under the provisions of the 14th article of the treaty of September 27, 1830, under the provisions of section 21 of the act of June 28, 1898, known as the Curtis Act, and laws amendatory thereof, which names shall be those of per- sons identified by the Commission to the Five Civilized Tribes under said section as Choctaw Indians entitled under article 14 of the said treaty of September 27, 1830, and placed by said commission on the roll of identified Choctaws under said section, and approved by the Secretary of the Interior. Second. The Secretary of the Interior shall also place upon said supple- mental roll of Mississippi Choctaws the names of any persons identified under section 21 of the said act of June 28, 1898, by the said Commission to the Five Civilized Tribes, upon any roll or rolls not approved by the Secretary of the Interior : Provided, That as to any person or persons claiming the right to be placed upon the supplemental roll of Mississippi Choctaws, under this second subdivision of section 1 of this act, the Secretory of the Interior- may on his own motion, or at the request of the attorney or other duly constituted authority of the Choctaw Nation, review the evidence upon which such person or persons were identified by the commission, together with such further evidence as may be submitted to him by any party in interest : And provided further, That he, the said Secretary of the Interior, shall determine from all the evidence in the case that the said person or persons are entitled to identi- fication as Mississippi Choctaws under the provisions of said section 21 of the act of June 28, 1898, and acts supplenientel thereto and amendatory thereof. Third. The Secretary of the Interior shall also place upon the supplemental roll of Mississippi Choctaws provided for in this act the names of all full- blood Mississippi Choctaw Indians who may claim identification under section 21 of the said act of June 28, 1898, as Choctaws entitled under the 14th article of the treaty of September 27, 1830, provided that such claimants shall present their applications for enrollment within three months after the pas- sage of this act : And provided further. That- they shall establish, by evidence satisfactory to the Secretary of the Interior, that they are entitled to identifi- cation under the said section 21 of the act of June 28, 1S98, as amended. Fourth. The Secretary of the Interior shall also place upon said supple- mental roll of Mississippi Choctaws the names of all children born prior to March 4, 1907, of any individual whose name is placed upon said supplemental rolls under the foregoing subdivisions numbered first to third of section one' of this act. Fifth. The Secretary of the Interior shall also place upon said roll the names of any person or persons whose ancestors received lands in the State of Mississippi under any of the provisions of the treaty of September 27, 1830, and who were prior to January 1, 1896, recognized as entitled to citizenship by the tribal authorities of the Choctaw Nation, but who are not borne upon the rolls of citizenship of said nation. Section 2. The Secretary of the Interior shall set apart out of any funds of the Choctaw-Chickasaw Nations a fund to be ascertained by the allowance of $8,500.00 for each individual whose name is placed upon the supplemental roll of Mississippi Choctaws prepared under the first section of this act, which said fund shall be held and disbursed as a trust fund for the benefit of the persona whose names are borne upon the said supplemental roll of Mississippi Choc- taws, in the manner hereinafter provided, and under such enactments as may hereafter be made by Congres" ENKOLLMENT IN THE FIVE CIVILIZED TEIBES. 121 Section 3. There shall be appointed by the President, by and with the advice and consent of the Senate, an Indian agent, who shall be designated as United States Indian Agent to the Choctaws in Mississippi, Alabama, and Louisiana. Section 4. An agency for the Indians enrolled under section 1 of this act is hereby established, the said agency to be maintained at or near Carthage, Miesisslppi. There shall also be maintained in connection with the said agency a school for the education and training of the minor children of the Choctaws enrolled under the provisions of section 1 of this act, and the agent above provided for shall also act as superintendent of the said school. The sum of $ out of the trust fund created by section 2 of this act shall be employed and expended, under the direction of the Secretary of the Interior, for the purchase of land and the purchase or erection of buildings and for the neces- sary equipment for the said agiency and school, and the said Secretary of the Interior shall investigate and repdrt to Congress what amount will annually be required for the maintenance of said agency and school. Section 5. After the deduction froni the trust fund provided in section 2 of this act of a sufficient amount to maintain the said agency and school for a period of twenty years and of all other sums herein provided for to be deducted from said trust fund and charged to said Indians as a class, the remainder of said fund shall be apportioned per capita on the books of the Secretary of the Interior to the said persons whose names are placed upon the supplemental roll of Mississippi Choctaws, and shall be held in trust for them, and shall be paid to them or expended for their beneOt as is hereinafter provided and as Congress may hereafter direct. Section 6. The Secretary of the Interior shall, through the agent to be appointed as provided herein, expend for the benefit of said Indians as In- dividuals, such sums as may be necessary to purchase homes for them, includ- ing such farming lands as he may deem adequate and proper and as may enable them to become self-sustaining and supporting. He shall also purchase for said individuals, out of funds held in trust for them, such farming imple- ments, stock, and household articles as may be by him deemed necessary for the same purposes. He shall also pay to them, out of the principal of their Individual trust funds, such amount or amounts as he may in his discretion deem necessary or proper to be paid them, and whenever in his judgment any individual or individuals become competent to manage their own afCairs he shall pay to them the balance then held by him for their individual account: Provided, That no funds shall be paid to minors under the age of twenty-one years except such as are necessary for their support, maintenance, and educa- tion: And provided further. That all lands purchased for individuals under the provisions of this act shall be deeded to the said individuals, their heirs and assigns, with the condition that the said lands shall not be sold or con- veyed without the consent of the Secretary of the Interior, to be evidenced by his Indorsement upon the deed of conveyance, and that such lands shall not be subject to any debt or money claim against such Indians or their heirs existing prior to the approval by the Secretary of such conveyance. Section 7. The Secretary of the Interior is hereby authorized and directed to settle and pay out of the funds set apart for the said Indians as a class the claim of the firm of Ralston, Siddons & Richardson, their associates and assigns, for services rendered and expenses Incurred in representing the claims of said Indians under contracts executed by representatives of the said Indians selected at meetings held in the respective communities in which they live: Provided, That the said Secretary shall not make an allowance thereon except he be satisfied by evidence submitted to him That the said contracts were executed by representatives of a majority of said Indians; that they were voluntarily ex- ecuted and understood by the said Indians; that the compensation named therein Is reasonable; and that the services rendered and expenses incurred were reasonable and proper in the prosecution of their claims, and the said Secretary shall have power, should he deem the rate of compensation named to be excessive, to allow such amounts as, in his judgment, would have been a reasonable basis of compensation under said contracts. basis or MISSISSIPPI choctaw claims. The rights of the full bloods who are the beneficiaries of the proposed bill are based upon the following facts: , ,,_ . . ., ^ «,. ^ First Article 14 of the treaty of 1830 preserved their privileges of Choctaw citizenship and guaranteed them the right to retain their interest in the Choc- 122 ENBOLLMENT IN THE FIVE CIVILIZED TRIBES. taw lands and property, which was to vest at any time upon their removal west of the Mississippi. Second. That the justice of their claim was recognized in the acts of Con- gress of 1898, 1900, and 3902, under which 1,643 individuals were placed upon the Mississippi Choctaw roll and shared equally with other Choctaws in the distribution of the land and property of the Choctaw Nation. Third. That the present claimants were largely identified as Choctaws en- titled under the 14th article of the treaty of 1830, under section 21 of the Curtis Act of 1898, and the fact that they are full-blood Choctaws, for the most part speaking only the Choctaw language, living in their own communities in the State of Mississippi, and following the habits and customs of Indian life, Is shown by the records of the Interior Department. Fourth. That the requirement imposed by the act of July 1, 1902, that to secure enrollment they must move to the Choctaw Nation within six months after their identification, effected a forfeiture upon the nonfulfillment of con- ditions which were unreasonable, for the following reasons: (Note. — Of approximately 2,700 persons, 95 per cent full bloods, who were Identified as entitled to enrollment, only 1,643 were enrolled.) (a) At the time of their identification more than one-half of those who failed to secure enrollment were children (many less than one year of age), who could not remove without the consent of their parents. (6) Of the remainder, more than one-third were married women who could not legally remove without the consent of their husbands. (c) Many of the heads of families were known to be employed under farm- labor contracts and would have been subject to the criminal laws of the State had they attempted to remove without the consent of their employer or lessor. (d) In cases of serious illness of the head of the family or any member of the family, the removal of the entire family would be prevented. (e) No provision whatever was made for the removal of these Indians as a body or by or under the direction of Government ofiicers, and no adequate pro- vision was made for the removal of individuals by the representatives of the Government. (/) It was known that they were too poor and ignorant to remove themselves. Fifth. The agent of the Dawes Commission, charged with the removal of individuals under the appropriation of $20,000 for that purpose, notified all of the enrolled Indians, by notices mailed and posted, that the Government would remove them, although the appropriation was exhausted in the removal of less than 300 individuals, and these Indians were also notified not to contract for their removal with private individuals, and they acted upon the advices and notices of the Dawes Commission, relying upon the good faith of the Govern- ment for the protection of their interests. Sixth. That they have asserted their rights, applied for Identification, sub- mitted satisfactory evidence, and, after having been identified, have taken all reasonable steps to protect their rights, and it would be an act of ^extraordinary injustice should they fall to receive recognition in the final winding up of the afCairs of the Choctaw Indians. PROCEEDINGS AND MEMORIAL OF MISSISSIPPI, ALABAMA, AND LOUISIANA CHOCTAW COUNCIL. Mat :10, 1913. Meridian, Miss., State of Mississippi: Be it remembered on this the tenth »\ny of May, 1913, in the purlers of the Great Southern Hotel, of Meindiau, Miss, there was this day held a coun- cil of the full-blood Mississippi Choctaws; that said council is the result of the meetings held in the various counties of the States of Mississippi, Alabama, and Louisiana by the Choctaw Indians of said States. That at said various meetings in said States the Mississippi, Alamaba, and Louisiana Choctaw Indians, in councils assembled, elected and named a delegate to represent them in this council. The council having been called to order by Acting Chairman Simpson Tubbee, council then proceeded to permanent organization. On nomination of George Pope the name of Dr. Wesley Johnson, of Leake County, Jlississippi, was placed before the council for permanent chief. The nomination being placed before the council. Dr. Wesley Joliuson was unanimously elected perma- nent chief. Dr. Johnson having taken the chair, on nomination of George Pope, of Neshoba Counljy, seconded by William Morris, Peter Ben was unanimously ENBOLLMENT IN THE FIVE CIVILIZED TBIBES. 123 elected permanent assistant chief; wlien William Morris, of Newton County, was nominated and unanimously elected permanent secretary and treasurer and Simpson Tubbee assistant secretary and treasurer. The orgnizatlon, being made permanent and perfected, shall be known as the Mississippi, Alabama, and Louisiana Choctaw Council. The council proceeded to business by calling on the Rev. James E. Arnold to open the council with prayer. On motion of Simpson Tubbee, a committee of five were appointed by the chairman, to wit: George Thomas, Simpson Tubbee, William Morris, Willie Solomon, and Elan Tookolo, for the purpose of submitting a memorial to the council, after which the committee retired and returned and reported and rec- ommended that the following memorial be adopted by the council, to wit: THE MESIOBI.\L OF IDENTIPIKD OHOCTAW INDIANS NOW LIVING IN THE STATES OF MISSISSIPPI, LOUISIANA, AND ALAB.\MA, THE lOTH DAY OF MAY, IQl.-!. To the Congress of the United States: • These memorialists respectfully submit the following statement of facts and of their rights as Indian citizens: 1. That there are now living principally in the State of Mississippi about 1,065 Choctaw Indians who are full bloods, except in some few instances, where they are of the greater part Indian blood. 2. That these Indians, your memorialists, and their ancestors, have lived In their present environment for a great many years and since the removal of the greater part of the Choctaw Xatiou to the Indian Territory west of the Missis- sippi under the treaty of September 27, 1830, who remained in Jlississippi, although there was expressly reserved to them the right of Choctaw citi- zenship, have ne\er received the supervisory control and guardianship of the Federal Government, but have been left to care for themselves as best they could ; that their ignorance and inexperience in business matters; their in- ability, which is to-day very general, to speak English, has subjected them and their ancestors to many impositions, with result that they are now, almost without exception, without lands or other property than their household belong- ings and are dependent for their livelihood upon their earnings as farm laborers or their interest in crops which they can produce upon rented lands. 3. They further state that under the treaty of September 27, 1830, there was reserved a right to remove to the Choctaw Nation west of the Jlississippi at any time, and it was expressly stipulated that "' they should not lose the privilege of a Choctaw citizen, but if they ever removed they should not he entitled to any portion of the Choctaw's annuity," referring to the annuity created by another article of said treaty. 4. Your memorialists further state that from time to time Choctaws who had remained in Jlississippi under the provision of said article removed to the Choctaw Nation and had been recognized as Choctaw citizens in the settle- ment of the affairs of said nation. That at the time of the settling of the Choctaw Nation's affairs by the Dawes Commission, commencing in the year 1896, it was decided by said commission that the Choctaws, who had not heretofore removed could not be recognized, whereupon your memorialists and other Choctaws who were then living as their neighbors in MississiiJpi, many of whom are relatives of your memorialists, employed attorneys, who presented their rights under article 14 of the treaty of 1830, with the result that Con- gress, bv acts approved May 31, 1900, and July 1, 1902, gave a limited time, to. wit, six months after identification, within which they might remove to and settle in the Choctaw Nation and Indian Territory, and then by maintaining themselves continuously for three years in the Choctaw Nation and Indian Ter- ritory, and by making proper proof of their compliance with these requirements, they would be finally enrolled as Choctaw citizens and recognized in the dis- tribution and allotment of the tribal property. ^ , . ^^ 5. Tour memorialists further state that the Dawes Commission had, in the year 1897 investigated and reported upon the condition of the Choctaws living in Mississippi and ajrain on March 10, 1899, had submitted a report containing a schedule of 1 923 Choctaws, who were found, after personal investigation by the commissioners in Mississippi, to be full-blood Choctaws, entitled under the provisions of article 14 of the treaty of 1^30; that at later dates, in the years 1900 and 1901 said commission had held a great many sessions in Mississippi determining the identity of those embraced on the schedule of March 10, 1899, as well as new applicants, with the result that it had prepared a final roll of about 2 800 Choctaw Indians in Mississippi, Louisiana, and Alabama who were 124 EJSTKOLLMBNT IN THE FIVE CIVILIZED TEIBES. entitled to move to the Choctaw Nation and the Indian "Territory and secure their rights by remaining there for three years. 6. That said investigations of the commission had fully developed the condi- tions under which your memorialists and others were living In Mississippi and they had ascertained and reported the fact that your memorialists were, with few exceptions, unable to read or write or to speak any language other than Choctaw; that they were penniless and without means to provide for their own removal or support in the new country ; that they were in many instances held under farm contracts and leases, which under the laws of the State of Mississippi prevented their removing from the State because of indebtedness which had been incurred by them to their landlords and employers, and said commission had definitely reported that it was impossible for said Choctaws to move to the Indian Territory without aid from the Government or other outside sources. 7. And your memorialists further state that it was known to the officials of the Government that the greater part of the said Choctaw Indians who were living in Mississippi at the time of these reports and at the time of passage of the acts of Congress, referred to above, were minors. Reference to the roll at- tached to the report of March 10, 1899, shows that of 1,923 persons reported as Idimtified there were 817 persons of legal age and 1,106 minors ; that of the 817 persons of age there were a great many who were aged and Incompetent and a groat many who were married women. 8. That the only appropriation which was ever made by Congress or available to iiid in the removal of the said Choctaw Indians from Mississippi to the Indian TtM ritory or to support and maintain them in their new homes was the sum of $'.'(1,000. This sum was exhausted and a deficiency was created by the removal of 209 individuals, and thereafter the Government was unable to give any aid to your memorialists, who failed to remove, or to the others who did remove at thiif time under the conditions hereafter stated. !). Your memorialists further state that in the year 1902 there were numerous poisons undertaking for their prospective profit to remove these memorialists ami olhers entitled by identification to secure Choctaw citizenship and who had coiiMacted with some of these memorialists and desired to contract with the otluTs for their removal. That the Commission to the Five Civilized Tribes was acquainted with these facts and was opposed to the operations of-these •persona who desired to remove said Indians; that the said commission therefore iKsnod notices to the memorialists and to other persons entitled to citizenship conditional upon removal, stating to them that the said contractors. were specu- lators who would deprive them of their property rights after they had been removed, and warning them against entering Into contracts with them, and at the siinie time the said commission notified said Indians that the Government pni|iiiKed to remove them at Its own expense, and that they should hold them- selves ii\ readiness for the agent of the commission, who would call for them In due coirrse; that your memorialists, in a great many Instances, relied entirely upr)n lliese official notices of the Dawes Commission, refused to enter into con- trticla oi to carry out contracts already made, and waited the further action of tlie ciimmisslon in removing them. The commission, however, as these nuMiKiriii lists have since learned, because of the fact that the fund for that pur- pose was exhausted, failed to make provision for their removal and failed and noglci-lcd (0 notify them that the Government agents were unable to provide for tlifir removal or maintenance, so that In ignorance of the conditions then ex- Isling and relying upon the assurance that the Government would move them in proper time they remained in Mississippi until the expiration of the period of six months after their identification and thereby lost their opportunity of acqniiing recognition of their rights as Choctaws by compliance with the pro- vlsiona nf the act of July 1, 1002. 10. Yonr nienioriiilists further state upon information and belief that in the adminiairalien of Inilian nfifairs, for more than a century, there is no other instil nrp where the Government has required the removal of a large body of Indiiina, inelnding women, children, and those aged and infirm, without pro- viding np|iro[ii late menus for their removal and without providing some means for theli niainlen;ince in their new homes by the issuance of rations and otherwise, even in tlmse eases where their removal wns to such a country that they might sustiiin themselves by primitive means; that in the present case the act of Congress ol' Jniy 1, 1902. provided the sole means of those memorialists retaining their iirivilegei- of Choctaw citizenship guaranteed to them by treaty, and the appropi'iiilliin oC $20,000 made by Congress merely provided for the removal of 265 Indhidiiais, a number le«« t-bnn one-tenth of those entitled nnri who have ENROLLMENT IN THE FIVE CIVILIZED TBIBES. 125 been found to be entitled by the Commission to the Five Tribes. The country to which they were required to remove was such that, they could not sustain themselves except by the means required in civilized communities; the lands were held largely under possessory rights, and the actual situation created was such that the majority of those entitled, many of whom were minors, were unable to comply with the law through no fault of their own. 11. Xour memorialists further state that their condition in Mississippi re- mains to-day substantially the same as it was in the years 1899, 1900, and 1901; that they can not, with hardly an exception, read or write, and that the ma.1ority of them are unable to speak or understand the English language, living in com- munities where the Choctaw language is universally used; that for this reason their children are unable to attend the State schools and are reared in the same unfortunate social and educational condition as their parents. They are In- formed and believe that the lands in the Choctaw Nation which were not allotted to individuals have been largely sold or disposed of, so that no land remains for them at this time; that under the provisions of certain bills which- are pending in Congress at this time it is providing to pay them the sum of $1,040 per capta as a settlement of their claims. Your memorialists state : First. That whatever amount is appropriated for their benefit should be coupled with such provisions that they and their children may be secured In their enjoyment of the same, and to this end they ask that an agent be appointed under the supervision of the Secretary of the Interior to assist and guide them. In so far as they are incompetent, in the administration of their affairs. Second. That the funds appropriated be set apart under the supervision of the Secretary of the Interior, to be expended for them and for their children under the supervision of said agent, and for the purchase for their benefit of such lands and other necessities in the State of Mississippi or elsewhere where they may live, or desire to live, and provided with a school located at Carthage, Mississippi, so that they may become self-supporting and independent. Third. That out of such fund payment be made to their attorneys engaged in prosecuting their claims, and vi^ho have undertaken the same upon a contingent compensation and at their own expense. And these memorialists further protest against the payment to them of the sum of $1,040 out of the Choctaw funds as indemnity for their loss of full rights of citizenship for the following reasons : First. That such logs of citizenship occurred without fault on their own part. Second. That to merely pay them the sum of $1,040 per capita would penallee them to the extent of seven-eighths of their rights, as these memorialists are informed and believe the lands and funds paid and to be paid to Choctaw citizens amount to about the sum of $8,500 per capita. Third. That said sum of $1,040 per capita is insufficient to adequately provide for the necessities of these memorialists, and administered as above provided, to enable them to become self-sustaining and Independent. It U inadequate to provide them with homes, to provide for the maintenance and education of their minor children, and to care for the aged and infirm. Fourth. That these memorialists are entitled to receive the full value of the estates lost to them, less a reasonable deduction, because of their being per- mitted to remain in their present homes and the possible additional expense caused by the suggested administration of their property. And your memorialists therefore pray that Congress may- pass such le^sla- tlon as win give them relief from the conditions recited in the memorial. Dr. Wesley (his x mark) Johnson, OMef. George Polk, Sec. Chief. Willie Mobris, Sec. and Treas. Simpson Tubbee, Sec.-and Treas. Willie Solomon. George (his x mark) Thomas. Peter (his x mark) Ben. Elan (his x mark) Tookolo. CuxBEBSON Davis, M. C. R. 3020. Weslet (his X mark) King. BiLLiE (his X mark) Davis. Sam (his x mark) Davis. Ruben (his x mark) Lewis. Witnesses : T. B. SULLIVAJf. D. J. McLaughlin. 126 ENROLLMENT IN THE EIVE CIVILIZEI> TEIBES. Said memorial was placed before tlie couucil and discussed, and was unani- mously adopted, and that James E. Arnold, our duly appointed and authorized agent, is hereby instructed and authorized to send a copy of this memorial to the President of the United States of America, the Secretary of the Interior, the chairman of the Senate Committee on Indian Aflfairs, and the chairman of the Bouse Committee on Indian Affairs, and Members of the Senate and House of United States Congress. After which the council was adjourned subject to call. Dr. Wesley (his x mark) Johnson, Chief of Council. Gkobge Polk (Geobge Pope), Second Chief. Willie Morris, Secretary of the Council. Simpson Tubbee, Second Secretary of Council. Attest : D. J. McLaushlin. T. B. Sttllivan. J. W. TOLBS. In the Matter of the Claims of Certain Identified Mississippi Choctaws. The State of Mississippi, Comity of Leake: Being duly sworn on oath deposes and says : That he is a Choctaw Indian of the full blood, living In Leake County, State of Mississippi, at or near the town of Carthage ; that at the hearing of the Dawes Commission, in the State of Mississippi, during the years 1899 to 1901, inclusive, this affiant and members of his family submitted satisfactory evidence, and were duly identified as Choctaws whose rights were preserved by article fourteen of the Choctaw treaty of 1830 ; that they were therefore entitled to receive for each member of said family an estate valued at $8,500, conditioned only by the act of July the first, 1902, upon their removal to and settlement upon lands in the Choctaw-Chickasaw Nations, Indian Territory. That ;)t the time of their final identification, in the year 1902, afiiant had made an agreement with parties who were willing to pay the expenses of the removal of his family; that he had no means whatever of paying their own removal expenses, and without such assistance they could not possibly remove and secure their rights as the law required. That the Dawes Commission shortly after notifying affiant of his final identi- fication and rights, issued a printed notice, a copy of which was mailed to him, signed by the chairman of the commission, stating that the commission would be, or had been, provided with a fund to remove the identified Choctaws; that they should prepare themselves for departure to their new home and await the agent of the commission, who would call for them within the time (six months after identification) provided by law. Said notice also stated that they should not make or carry out any agreement for removal by private parties engaged In that business, who were speculators and would deprive them of their property In the Choctaw or Chickasaw Nations. Affiant relied on this official notice, received also by his friends and neighbors, and refused to carry out the agreement he had made for his own removal, and awaited the promised aid of the Government. The six months allowed by law passed without the Government sending anyone to remove them. Affiant now understands that although Congress appropriated $20,p00 for their removal, this entire sum was expended in removing less than 300 ChocT taws, but no notice was given the others that the Government was unable to carry put its promises and would not call for them, so their rights were lost unless some relief is now afforded. Affiant further states that not only has he and his children been deprived by these acts of their interest and estate in the Choctaw Nation, reserved to them by the treaty of 1830, but they have failed and now fail to receive the care and protection of the Government given for many years to the Indians. Their chil- dren are not permitted to attend the Indian schools, but are being brought up in ignorance, unable to read or write or to speak and understand the English lan- guage. That the Choctaws in Mississippi live in their own communities; are not brought in contact with the white people except when they perform farm ENROLLMENT IN THE FIVE CIVrLIZED TRIBES. 127 ^^?^' ^'^'^ "^ '^®y ^^^'® always continued to use the Choctaw language their ThfA'"''-''^'''"^ T""^ ^''^"'^ ^'^'^ '^'^•^ "^"t therefore attend thl Stafe sfhools ihat besides a large number of mixed-blood Choctaws in Mississippi there are about one thousand full bloods, who were duly identified by the Dawes Com- mission, and whose condition is similar to that described by the affiant Witnesses : ^'^'"'^ ^^'^ ^ "^^'^'^ ^^^°''- J. H. Neill. J. M. Golden. Subscribed and sworn to before me, N. F. Wallace, clerk of the chancery court in and for the county and State aforesaid. V, ■*'^'^ JL *"''*^®'' <=ertify that the said Wilson Dixon is in appearance a full- blood Choctaw Indian. That he is able to speak and understand English suflB- ciently for me to explain the contents of the foregoing affidavit to him, which I aid. N. F. Wallace, Chancery Cleric of Leake County, Mississippi. MEMORIAL. At a public meeting of the citizens of Leake County, attended by the judge of the eighth circuit court district and the officers of the county and attoraeys and citizens of the adjoining counties of Attala, Neshoba, Newton, and Scott, at the courthouse at Carthage, Mississippi, on the 21st day of April, 1913, the following preamble resolutions, and memorial were adopted: "Whereas we know as a fact that there are about 1,000, at least, of full- blooded Mississippi Choctaw Indians now living In the above counties, who have been identified by the Dawes Commission, and about 2,500, including mixed bloods, who have not been identified; " Whereas we are reliably Informed that It would be use- dians should be recognized by Congress and an equitable settlement made with them with money now on hand or which may come Into Treasury of the Gov- ernment ; " Whereas we are reliably informed that It would be useless for them to be sent to Oklahoma State, as no public land now remains so that they could get homes, and knowing that their condition is pitiful, most of them living in abject want and poverty, with but little school facilities for their children, who are growing up in perfect Ignorance, and believing that the Government should, after so long a delay, do justice to these poor red men, In part fulfilling their treaty obligations with them and in part as a reward for the services and kindly office of friendship that the Choctaw Tribe of Indians of Mississippi bestowed upon our people In the early settlement of the State : Therefore be It " Resolved, That the Congress be memorallzed to pass such laws, if necessary, to settle upon each head of the full and mixed blood Mississippi Choctaw Indians new residing in the State an equal part in money which those of the tribe have received In land and money who removed to the Territory and who availed themselves of thie acts of Congress in that behalf. " We also respectfully request the Secretary of the Interior to recognize the request of these Mississippi Choctaw Indians, as far as he can and the laws of Congress will permit, and we ask our Senators and Representatives m Congress to use their best endeavors to present the case of these Mississippi Choctaws to Congress and, If possible, have passed laws which will guarantee their rights in the premises and a share of the fund which we believe they are justly entitled and which they have been so long delayed in receiving , , ^^ "Resolved, That a copy of this memorial be sent to the President and to the Secretary of the Interior and to our two Senators and to the Representatives In the lower House of Congress from Mississippi, and that the papers in the 4th 5th, and 6th congressional districts be requested to publish this memorial, and the memorial be spread upon the minutes of the court." The State or Mississippi, LeaJee County: I H N McMillan clerk of the circuit court of the above county and State, do hereby' certify that the above and the foregoing is a true and correct copy of the preamble, resolutions, and memorial passed at meeting of the citizens, officers Ind members of the bar of the several counties, who were present and participated, as tte same appears duly recorded upon the minutes of the court. Book L, pages 106 and 107. ,,, , , ■ ^ [Seal circuit court, Leake County, Mississippi.] ^^ ^_ McMillan. ClerK. 128 ENKOLLMENT IN THE FIVE CIVILIZED TKIBES. [In the Matter of Claims of Certain Choctaw Indians Remaining in the State of Mis- sissippi, Louisiana, and Alabama.] Bbief in Behalf of the Claims of Said Indians to Enrollment as Citizens OF THE Choctaw Nation and for Theie Interest in the Funds and Phopeett IN Said Nation. STATEMENT OF FACTS. The committees upon which will devolve the consideration of the rights of the Choctaws still remaining east of the Mississippi River are more or less familiar with the subject through the well-known conditions concerning the legislation extending over the years 1898 to 1006 with respect to the Mississippi Choctaws, through which 1,639 individuals were added to the Choctaw rolls ; also through the memorials and other papers and documents which have been presented during this period and up to the present time on behalf of the other Choctaws still remaining in Mississippi. There are at this time between 700 and 1,000 of these Choctaws living in the State of Mississippi, and the claim which they now assert and have always asserted to an interest in the Choctaw lands, and such funds as have been derived from the sale of these lands, is based upon the following provisions of article 14 of the treaty of September 27, 1830, known as the treaty of Dancing Rabbit Creek: " Art. 14. Each Choctaw head of a family, being desirous to remain and become a citizen of the States, shall be permitted to do so by signifying his intention to the agent within six months from the ratification of this treaty, and he or she shall thereupon be entitled to a reservation of one section of six hundred and forty acres of land, to be bounded by sectional lines of survey ; in like manner shall be entitled to one-half that quantity for each unmarried child which is living with him over ten years of age; and a quarter section to such child as may be under ten years of age, to adjoin the location of the parents. If they reside upon said lands, intending to become citizens of the States, for five years after the ratification of this treaty, In that case a grant in fee simple shall issue. Said reservation shall include the present improvement of the head of the family or a portion of it. Persons who claim under this article shall not lose the privilege of a Choctaw citizen, but if they ever remove are not entitled to any portion of the Choctaw annuity." This treaty, which was an agreement between the United States and the Choctaw Nation — then undivided and composed of the ancestors of the indi- viduals now known as Mississippi Choctaws, as well as those of the persons now recognized as Choctaw citizens — expressly guarantees that those who remain in the State of Mississippi, by virtue of the provision therein contained, " shall not lose the privilege of a Choctaw citizen, but if they ever remove," etc. What Is meant by the "privilege" of a Choctaw citizen? This question has been answered in various cases as follows : "The investure with special or peculiar rights" (U. S. v. Patrick, 54 Fed. Rep., 348). "In its natural meaning the word 'privilege' may be defined as a right peculiar to an individual or body" (Ripley v. Knight, 123 Mass., 519). "Privileges are special rights belonging to the individual or class" (Lonas v. State, 50 Tenn., 306). " The word ' privilege,' although not a very appropriate term to use in de- scribmg one's title to real estate, may be used without doing very great violence to its legitimate meaning. An estate in fee is in one sense no more than the privilege of holding land by a certain tenure. Such a holding may be described as a privilege without violence to the term" (Dillingham v. Roberts, 75 Me ill). " Privilege is a comprehensive term and to enter on and occupy lands that form a part of a canal system of the State by anyone is exercising a privilege 111 one sense of that term" (State v. Pittsburg, etc., Co., 53 Ohio State 189) X, ' J^^.o^^'J?® .' privilege ' and ' right ' are synonymous." (People v. Hayden, 13 N. Y.,.198; Smith v. Cornell University, 45 N. Y. Supp., 643 ) In the treaty referred to the particular right or privilege granted the Choc- law ^ation was a territoy west of the Mississippi, to hold perpetually free from fiiiy Intrusion of the whites The 14th article of that treaty conferred on the Choctaws who remained east of the Mississippi an interest in that land Wliether or not such interest was contingent upon their removal to the territory set apart west of the Mississippi Is immaterial. The right at any time to re- ENROLLMENT IN THE FIVE CIVILIZED TRIBES. 129 move to certain land and thereby acquire a right thereto or interest therein is a contingent estate, recognized by the rules of the common law, and no sale or disposition of the land can be made foreclosing such contingent interest or estate without the holder of the outstanding contingent estate joining in the conveyance. It is a property right, and should the United States sell said land without consideration or indemniy therefor to these claimants it is liable to make to them adequate compensation. When ths matter was brought to the attention of Congress, by the act of July 1, 1902, it made a provision whereby a period was fixed within which the Choctaws remaining east of the Mississippi might remove to the Choctaw Na- tion, in Indian Territory, and after making certain proofs and living there for three years become enrolled as Choctaw citizens entitled, as are other Choctaws, to allotment and a pro rata share of the land and property of the Choctaw Na- tion. Substantially 1,000, or, in other words, about two-fifths of these Indians, who were full-blooded Choctaws, speaking the Choctaw language, conforming to the Choctaw customs and mode of life, unable to speak English, or to read or write, and in fact more ignorant and uneducated as a class than their brethren in the Indian Territory, failed to take advantage of this act of July 1, 1902. Two questions arise, and upon the determination of these two questions must depend the answer to the proposition of whether the opportunity afforded by the act of July 1, 1902, should be regarded as foreclosing the rights of these people. The first question is whether the Government had the right, legally or equitably, by an agreement with the Choctaws west of the Mississippi, without consulting the Mississippi Choctaws, and without their consent, to provide for the winding up of the affairs of the Choctaw Nation, foreclosing the contingent interest and estate of the Mississippi Choctaws. The second question is whether the terms and conditions of the act of July 1, 1902, sections 41 to 44 of which are appended to this brief, and the acts of the Government and its ofiicers thereunder, afforded to the Mississippi Choctaws an adequate or fair means of fulfilling the conditions imposed as a prerequisite to the retention of their privileges as Choctaw citizens. We are in this brief asking the consideration of Congress of this second ques- tion in particular and desire to call attention, first, to the conditions Imposed by the act of July 1, 1902, and second, to the acts of the Dawes Commission thereunder. In the first place, the provisions of the act of July 1, 1902, required each and every one of the Mississippi Choctaws to remove to the Choctaw Nation, in Indian Territory, within six months after their identification as Choctaws. It was known to Congress at the time that act was passed that the Dawes Com- mission had, during several years previous thereto, held sessions in the State of Mississippi and taken testimony for the purpose of identifying these Indians. These hearings had been substantially completed, and the Dawes Commission was, at the time the act was passed, ready to or had identified substantially all of the Mississippi Choctaws. This act, therefore, gave six months' time for nearly three thousand Indians to wind up their affairs in Mississippi, give up their homes which they had occupied for generations, dispose of the property which they were unable to carry with them, secure the means for their removal and maintenance, and establish themselves in a new country. The report of the Dawes Commission of its investigations into the conditions of these Indians, copies of which are now before the committee, had fully disclosed the deplorable condition under which they were living, and the fact that many of them were bound under " planters' " contracts under the laws of the State of Mississippi, and could not leave that State without repay- ing certain debts. It was known that they had no money and were absolutely dependent upon the care of their attorneys or of Government agencies. Notwithstanding this fact, an appropriation, which was added to the act of July 1 1902, by House amendment, was stricken from the bill in the Sen- ate not because of any contention that it was not needed, but, as stated on the' floor of the Senate by the then chairman of the Committee on Indian Affairs because he understood that the Choctaw Nation would refuse to ratify the supplemental agreement if any such provision was made by the Government to facilitate the compliance by the Mississippi Choctaws with the provisions of It is true that by the provisions of a subsequent appropriation bill twenty thousand dollars was provided to enable the Dawes Commission to assist in 64969—15 9 130 ENROLLMENT IN THE PIVE CIVILIZED TRIBES. the removal of these Indians, but the records show that substantially the en- tire sum was expended in the removal of two hundred and sixty-nine indi- viduals, so that the inadequacy of this appropriation need not be discussed. In addition to the requirement of the act of July 1, 1902, above referred to, it was further required that the Mississippi Choctaws should maintain a bona fide residence within the Choctaw Nation for three years. These Indians were unable to comply with this condition without assistance, and no fund was ever used or provided by Congress so that it could be used to assist in their maintenance. In the original treaty of 1830, under which the other Choctaws had moved to the Choctaw Nation west of the Mississippi, and in substantially every provision for the removal of Indians to a strange country, with which we are familiar or have any knowledge, a provision has been made by the way of annuities or supplies in liind to assist in the maintenance of the Indians at least during the first years of their residence in their new homes. Consequently a number of the Mississippi Choctaws who had removed to the Choctaw Nation after the passage of this act of July 1, 1902, returned to Mdssissippi. Their failure to comply with the three-year residence require- ment has, under the present act, forfeited their rights. ACTS OF GOVEKNMBNT AGENTS UNDER THE ACT OF JULY 1, 1902. The acts of the Dawes Commission and the legislation of Congress were very discouraging to attorneys. In so far as the matter of advancing money and ex- penses for the removal and representation of the Mississippi Choctaws "is con- cerned. The act of May 31, 1900, by a proviso inserted by the conference com- mittee, rendered the attorneys' contracts with these Indians ineffective so far as securing compensation from them was concerned. This act was passed four years after many of the contracts had been talien and a large amount of work had been done by the attorneys. There was for this reason small inducement for their attorneys to incur the large expense incident to removing and caring for the_ Indians. Not only was this condition existing at the time the act of Julyl, 1902, was passed, but the Dawes Commission, upon the ground that some of the attorneys' contracts were excessive, repeatedly notified the Indian claimants, verbally and by oihcial notices issued by the commission' to all of the Indians, that they should not have any dealings with attorneys, but that the commission was looking after their Interests, and they specifically notified the Indians that the commission would look after the matter of their removal to the Choctaw Nation, and that they should prepare themselves to remove, and wait for further notice from the commission of the definite arrangements for their removal. Some of these Indians who had been urging their claims then for six years, who had been identified on the McKennon roll of 1899, and who had again estab- lished their identity at the hearings conducted during 1900 and 1901, relied upon these notices and waited for the official notice of the commission of the time when they should remove and the arrangements made to carry them to the Choc- taw Nation. No such notice was sent ; the Indians were practically abandoned, and the result Is that to-day they are living in their old homes in Mississippi under the same conditions existing when the report of March 10, 1899, was made by the Dawes Commission. Unless relief is granted, these Indians are, by reason of the stringent provisions of the act of July 1, 1902, and the negligent acts of the Dawes Commission, deprived of an estate which is essential to their welfare and citizenship. In the case of Winton vs. Jack Amos and other Mississippi Choctaws, now pending in the Court of Claims, testimony establishing these facts was taken in the presence of and subject to cross-examination by the special attorney of the Department of Justice and an employee detailed from the Union Agency, who was also acting as attorney in the defense of that case. The deposition of Pat Chitto, a fuU-blood Mississippi Choctaw, living in Neshoba County, Mississippi, detailing the circumstances under which he and the other full-blood Choctaws living in his neighborhood lost their rights by failure to remove, occasioned by these notices of the Dawes Commission, has already been filed with this com- mittee. SPECIAL INSTANCES OF MISSISSIPPI CHOCTAWS FAILING OF ENROLLMENT. There are certain other cases to which special attention Is called, wherein persons entitled to enrollment as Mississippi Choctaws have failed to secure ENROLLMENT IN THE FIVE CIVILIZED TRIBES. 131 their rights as Choctaw citizens because of the peculiar conditions and require- ments which Congress made in respect to these Indians. In the case of Elizabeth Farve and Clemogone Farve, sisters, application was made for Identification at Meridian, Mississippi, in May, 1901. These claimants were full-blood Choctaws. They removed to the Choctaw Nation during the year 1903, but at that time the commission had failed to act upon their enroll- ment application. During the latter part of the year 1903 their application waa rejected and notice given them by the commission, whereupon they returned to Louisiana, where they had formerly lived. The attorneys having charge of their cases secured, however, a review of the adverse action of the commission, and this body subsequently rendered its decision identifying them as Mississippi Choctaws. By no fault of their own, however, their names were not transmitted by the commission to the Secretary of the Interior until after March 4, 1907, the time fixed for the final closing of the rolls. . In the case of Dennis Frenchman, who also moved to the Indian Territory in 1903, the applicant was rejected because he stated in his application that he thought he was part white. His father, however, had appeared before the com- mission and was enrolled as a full-blood Choctaw, and testified that Ms son was also a full-blood Choctaw. A number of other old Indians who knew his ances- tors also testified that he was a full-blood Indian. The findings of the commis- sion in his case state that he has all the appearance of a full-blood, that he speaks the Choctaw_ language, and he is able to speak very little English. His wife Is a full-blood Choctaw and was enrolled and received her allotment as such, but by reason of the findings of the commission in his case all of his chil- dren are refused enrollment. " 43. Applications for enrollment as Mississippi Choctaws, and applications to have land set apart to them as such, must be made personally before the Commision of the Five Civilized Tribes. Fathers may apply for their minor children; and if the father be 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 agent duly authorized thereunto by power of attorney, in the discretion of said commision." Supplemental Bbiep. history of the pboceedings ebom 1896 to 1907. When the act of 1896 provided for the making of rolls by the, Dawes Com- mision of the persons to be recognized as citizens of the Five Civilized Tribes, the Choctaws living in Mississippi presented applications for enrollment. The purpose of making those rolls was to determine who should receive pro- portionate shares in the distribution of tribal property, lands, and funds. The case of the Mississippi Choctaws was peculiar. They had an interest in the property of the Choctaw Nation, which became vested whenever any Choctaw moved from Mississippi to the Choctaw Nation, in the then Indian Territory. During all of the years from 1830 to 1896 they had at Intervals exercised this right and they had been accepted without question by the tribal authorities. As long as they lived in Mississippi their right, while of the le^al character known as a contingent estate, to vest upon the happening of a contingency, was, of course, inchoate, but it was a right and an Interest in the Choctaw property which would be recognized at common law. The Dawes Commission was not given the authority to determine who might be interested in the tribal property, although that was the object of Its proceedings, but it was specifically directed to prepare rolls of the citizens of the Indian nations. The result was that when a number of Mississippi Choctaws applied for enrollment, the commission held that although they had rights in the matter they were not entitled to have thir names placed upon the rolls of citizenship of the Nation except where they had removed and actually taken up their residence therein. ,. . ^ .^, Bv the act of June 7, 1S97 (30 Stat., 83), Congress directed the commission to examine and report upon the rights of the Choctaws in Mississippi. The commision reported that while they had no rights of citizenship so long as they remained in Mississippi, they did have the right and privilege, reserved to them by article 14 of the treaty of 1830, to secure their Interest by removal. 132 ENEOLLMENT IN THE- FIVE CIVILIZED TRIBES. The commission concluded its report under tills act by a recommendation that the importance of the subject was such that it should be submitted to the Court of Claims. In the case of Alex Byars, who removed to the Choctaw Nation in 1903, a very similar condition of affairs exists. His wife is also enrolled, but his children are excluded. As to cases such as specifically described above, legislation is required. The matters stated are of record in the Interior Department, and have already been the subject of investigation by that department. As to the full-blood Mississippi Choctaws who have been excluded by reason of their failure to comply with the act of July 1, 1902, we respectfully submit that legislation should be passed either providing for their enrollment as citizens of the Choctaw Nation upon such reasonable conditions as Congress may determine or that some compensa- tion should be made for the value of their contingent estates, of which they have been unjustly deprived. Respectfully submitted. Kalston, Siddons & Richardson, Attorneys for the Mississippi Choctaw Indians. J. E. Aenold, Agent. Washington, D. C, December 7, 1910. ACT OF JULY 1, 1902 (SECS. 41 TO 44). " 41. All persons identified by the Commission to the Five Civilized Tribes under the provisions of section 21 of the act of Congress approved June 2S, 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 September 27, 1830, may, at any time withia six months after the date of their identification as Mississippi Choctaws by the said commission, make Bona fldc 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 Jlissis- 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 Missis- sippi Choctaw Indians, whether of full or mixed blood, who received a patent to land under the said fourteenth article of the said treaty of eighteen hundred and thirty who have not moved to and made tona fide settlement in the Choctaw- 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 a descendant 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 continu- ously 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 })ona fide residence, made in such manner and before such oSacer as may be designated by the Sec- retary of 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. SECTION 21 OF THE CURTIS ACT. Pending a final decision by Congress on the report of the commission. Con- gress, evidently with idea of securing information as to the number and condi- tion of the persons who would be beneficiaries of any decision or enactment for ENROLLMENT IN THE FIVE CIVILIZED TRIBES. 133 isQe'^V,fir'*''y'„^^.°-''^^'^' ™serted a provision iu tlie Curtis Act of June 28, isas, lu tlie following words : ..," ^^^'^i,?^ V- ^"'•^ commission shall have the authority to determine the iden- ?y i*« ."^''T I° Winton?— -A. No, sir. Q. 22. Did you make a contract with Mr. Ellington? — ^A. No, sir. Q. 23. Did any of four family make contract with anybody? — A. No, sir; only time-mad6 contract with C. F. Winton. Q. 24. Did C. F. Winton say anything to you about going before the Dawes Commission for indentifieation?— A. I don't recollect whether he did or not. I didn't see him much after I made a contract with him, because he came up intO' this part of the counti-y- 138 ENROLLMENT IN THE FIVE CIVILIZED TKIBES. Q. 25. As a matter of fact you never saw him again after you made the ■contract with him, did you? — A. I saw him away after a while. Q. 26. How long after? — A. About six months after I saw him, but the Dawes Commission advised me not to go with him, so I met up with him and told him I would not go. I never told him about what the Dawes Commission told me, *ut I had made contract with C. F. Winton to give him half of my land to take me out there and supply me for one year. Q. 27. Did he ever come to talie you out there?— A. No, sir; he never come "because I told him I wouldn't go. I told him that because the Dawes Com- mission told me the Government would take me out there without me giving them half of my lands. Q. 28. Did you ever make any efforts to find out where the Dawes Commis- sion was moving Indians from Mississippi to the Indian Territory? — A. lywas looking for the notice all the time, but never received any notice. Q. 29. Did you ever try to find out whether they were moving any people or not, or did you just sit there and wait for somebody to come along and move you? — A. Yes, sir; I was sitting down there waiting for the notice, because he said he was going to send me a notice. Q. 30. Who were you working for then? — A. I was renting land. Q. 31. Whose land?— A. Reed was his name; I don't know his first name. He lived out in Texas. Q. 32. How far did you live from St. Anne post office? — ^A. About 2 miles and a half. Q. 33. Who was the postmaster at that time? — ^A. If I am not mistaken, it ■was Frank Triplett at that time. Q. 34. Now, who came out to your home to get you to testify in this case? — • A. T. B. Sullivan. Q. 35. How far does he live from you? — ^A. About 9 miles. Q. 36. You know that he is one of the Intervening claimants in this case, don't you? — A. I know he is connected with some of the business. Q. 37. Now, how many times has he been out to see you about this case? — A. Once. Q. 38. When was that?— A. About the 14th of this month. Q. 39. What did he say to you about the case? (Objected to by counsel as to what conversation was had, unless the founda- tion is shown that said conversation is relevant to the case.) A. He just told me they were going to take the testimony here at Meridian. Q. 40. Never asked you anything about what you were going to testify to, did he? — A. No, sir. , Q. 41. He did not know anything about what you knew about this case, did he? — A. No, sir; he did not. Q. 42. Now, nobody knew what you were going to testify to before you <;ame up here to give evidence, did they? (Objected to by Mr. Wright as an attempt to confuse this witness, when it is well understood by the examining attorney that lawyers always talk with the witness prior to examination. Counsel for the Government objects to the objection of the counsel for the interveners, because it tends at least to apprise the witness of the object of the cross-examination. Attorney for the Government objects to the reading of his objection to the ■witness. ) Mr. Weight. The reading of the above objection by Mr. Wright is waived. A. I was talking to Mr. Wright about It. Q. 43. Mr. Sullivan, however, didn't know anything about it I believe yon ■said ; Is that right? — ^A. Yes, sir. Q. 44. You said that about 40 families of full-bloods lived in your neigh- t)orhood, is that correct? — A. Yes, sir. Q. 54. How far do they live from you? — A. About 30 of them live right close to each other, about 4 miles square some of them live in sight, the far- therest live about 4 miles off. Q. 46. Well, who preaches to those people on Sundays? — A. They have got a pastor there named Scott York, who speaks English, a full-blood Choctaw. Q. 46i. What is his post oflice? — A. It used to be Standing Pine, but it is Carthage, Miss., now. Q. 47. Are there any other prominent men among them that you know of? If so, give them their names. — ^A. I couldn't call any other one. Q. 48. Can you give me any other names besides that you have just given? — A. Yes, sir; Phillip Dixon. ENROLLMENT IN THE FIVE CIVILIZED TBIBES. 139 O ^o rlJ"^ * full-blood Choctaw?-A. Yes, sir; and he speaks English, that you know^f """^^ full-blood Choctaws out there who speak English, Redirect examination by Mr. Weight : Questionl. When you talked to the commission, do you mean to say that you talked to the person who was in charge, the head man?— A. Yes, sir. Pat Chitto. value op choctaw estates. The Choctaws enrolled as citizens have received an individual allotment ; they also share in the proceeds from' sales of town-site lots, surplus lands, coal oil gas, and asphalt leases, and other tribal property and funds. While the value placed upon an allotment in 1898 for the grading of land for allotment purposes was $1,040, it must be conceded that this figure— $6.50 per acre for the best land— is far below the actual value. The 1910 census reports for Oklahoma (Bulletin, Agriculture, Oklahoma) Table 1, " Farms and farm property," pages 12 to 19, show that the average value per acre of farm property is $22.49. The Choctaw allotments ranged frpm IGO to 4,160 acres. In the sales of surplus land recently made by the department some of this land, which was the residue after the best lands had been selected, some tracts brought more than $20 per acre. ' The general estimate of the value of an allotment ranges from $6,000 to $7,000. The Choctaw general council in its memorial of October 8, 1909 (S. Doc. 399, 61st Cong., 2d sess., p. 123), places the value of the surplus lands, coal and asphalt lands, town sites undisposed of, and public property of the nation at $60,000,000. There are 22,081 enrolled Choctaws, which would make the indi- vidual interest of each about $2,700, or a total estate of from $8,700 to $10,000. We call attention to the interesting report of Mr. David I. Bushnell, of the Bureau of American Ethnology, Smithsonian Institution, who made an investiga- tion of one of the communities of these Choctaws on Bayou Lacomb, La., ex- tending from December, 1908, to April, 1909 (Bulletin No. 48, Bureau of Ameri- can Ethnology; H. Doc. 420, 61st Cong., 2d sess.). Respectfully submitted. Ralston, Siddons & Richaedson, Attorneys for the Full-Blood and Identified Choctaws of Mississippi, Louisiana, and Alaiama. James E. Aknold, Representative. Their chief, Wesley Johnson, of Carthage, Miss., and two dele- gates, Culberson Davis, of Decatur, Miss., and Emil JcJhn, of La- combe, La., came to Washington in January, 1914, and remained here about a month. While here we called upon practically every Mem- ber of .Congress and left with him, or for him, a copy of " Proposed legislation for the Choctaws of Mississippi, Louisiana, and Alabama," and also a statement of their claims. While here we had a conf,er- ence with Commissioner Sells, and an audience with the Secretary of the Interior and the President. The Mississippi Choctaws are uniformly a peaceable, honorable people, and their condition is pitiable — ^no homes, no schools, no country, no house of God. The condition of their old chief is above the average, yet, w.hen he got off the train here the 15th day of January, all the clothing he had on below his waist was a pair of cotton pants and a pair of unlined brogan shoes. It was a bitter cold morning too. He had worn the best he had and all he had, and in his pride he protested against my buying any clothing, saying it was enough to pay all their expenses here to try to get justice for their people at the hands of Congress and the Government. Mr. Richard- son gave him an overcoat, and I bought him a suit and underwear and socks and shoes, etc., to save him from suffering and sickness. I 140 ENEOLLMENT IN THE FIVE CIVILIZED TEIBES. had to put clothes on the two delegates before I could put them on the train to bring them here. And I want to say that a worse treated people under the high heavens does not exist anywhere. In Missis- sippi they have what they call the separate coach law, and I found when I left Mississippi with these Indians that I could not get a lower space on a sleeper, because the Indians have been trained that they must go into the cars with the colored people. Mr. Carter. Do they make the Indians in Mississippi ride in the cars with the colored people? Mr. Arnold. That is the custom. The brakeman attempted to' make us get into the coach with the colored people, and I protested against it and took it up with the conductor. I said to him, " I have first-class transportation for these Indians into "Washington, and if you put them off, you put them off at your own risk. Your brake- man has sent them in there, and I have called them out, and if he insists, it is up to you to determine." " Well," he says, " they can ride here in this coach." He was speaking of the smoker for the white men. And they would not allow them to go into the dining room of the Newton Hotel. Mr. Carter. The separate-coach law of Mississippi does not apply to Indians, does it? Mr. Arnold. No; but in an unwritten way they make it apply to them. And I want to say I am thankful that I do not live in Mis- sissippi, and I am thankful that a good many other Indians do not live in Mississippi. When I was down there last spring — when I went down to this community — I experienced difficulty in getting first-class hotel accommodations for them at Meridian; that is, among the cheaper hotels, and I found it necessary finally to go to the Great Southern, the best hotel in Mississippi. I said to the people at the Great Southern, " I am bringing these Indians here for the purpose of holding a little council, and I can not find hotel accommodations for them." I Imow the owner of the hotel, and he says, " I will give you a separate dining room for them, and I will give you the parlor to hold your council in." I said, "That is en- tirely satisfactory to us." At the other hotels they simply said, " We can not take care of you. It will injure our trade; we can not have Indians in our hotel." That is the way those people are treated down there. They will not send their children to colored schools, and they can not send them to white schools for the reason that there is an unwritten rule down there that the Indians can not go to the white schools. I have had Indian after Indian tell me, " I wish I could send my children to school where they could learn to read and write sufficiently to be able to cope with their white neighbors." Mr. Cartor. They have no law in Mississippi, have they, which places an Indian in the same class with the negro? Mr. Arnold. No; but the custom is worse than the statute. The Indians are taught down there that they can not go into the front gate of the white rnan's yard. If an Indian attempts to go in at the front gate they will waive him around to the back way. When it comes meal time the Indian has to take his meals in the back yard. And I trust God will make some provision whereby these people may be lifted up from the dregs of superstition and prejudice and placed upon a higher level, where they may become at least American citizens. ENROLLMENT IN THE PIVE CIVILIZED TRIBES. 141 Mr. Carter. How many hotels do you know of where they refused to take Indians? Mr. Arnold. At what point? Mr. Carter. At all points. How many hotels do you know alto- gether? How many times? Mr. Arnold. A number of times that has happened when I was bringing Indians to make their applications before the commission. For instance, we found it necessary on one occasion — Mr. Hudson and I — to go out and charter a hotel. It was a white man running the hotel, and we went to him and said, " We are going to have a nmnber of Indians coming here^ and we want you to give them accom- modations." " Well," he said, " the only thing to do is for you to take the whole hotel, and if I have a white boarder in my house he will leave." We agreed to those terms and paid him for the whole ,thing. Mr. Carter. Did you have any white boarders there? Mr. Arnold. We had a few. Some of them left and some of them remained. The more sane ones, in my way of looking at it, remained. Then, when I was transporting them in 1903 over to Oklahoma, I found it necessary to charter cars and take them out there, because we did not want to mix them with colored people. Mr. Carter. Is it not against the law in the State of Mississippi to permit negroes and Indians to ride in the same coach ? Mr. Arnold. I presume that is true, so far as the statute is con- cerned ; but what are you going to do with a poor full-blood Indian that can not speak English? He can't understand what the brake- man is trying to tell him, and the brakeman can't understand him, and he is thankful to crouch down in any place till he reaches his destination. Mr. Carter. Is that just the arbitrary action of the railroad employees ? Mr. Harrison of Mississippi. If Mr. Arnold will allow me just a word ; I think, without question, the law of the State of Mississippi would prevent Indians from riding in cars with negroes. Mr. Carter. You think it would prevent them? Mr. Harrison. Yes; it would prevent them from riding in the same coaches with negroes, the same as the negroes would be pre- vented from riding with white people. But the trouble about it is that these people are not accustomed to going into towns ; they are not accustomed to riding on trains ; they are not accustomed to going to cities and putting up at hotels. They live out there in Leake County and other counties in the State, and they are not accustomed to these things, and when a large body of Indians comes to a city like Meridian, doubtless— although I do not know anythnig about that occasion of which Mr. Arnold speaks— but doubtless they thought it was an unusual sight, and it is an unusual thing for an Indian to come to a hotel there like the Great Southern. So I attribute the unaccustomed practice of the Indians to riding on trains, to going to cities and putting up at these hotels, as the cause for their bemg refused those privileges. . Mr. Carter. What have you to say concerning Mr. Arnold's state- ment that th6y are not allowed to attend the white schools ? Mr. Harrison. My idea is, while I do not know, I think they are permitted to attend the schools. But the trouble about these Indians 142 ENEOLLMENT IN THE FIVE CIVILIZED TRIBES. in Mississippi largely is that they have not been accustomed to going to school. They have not been encouraged to go to schools, and they do not encourage the children to go to schools, and, of course, there are not many of them that do go. You know, in Mississippi we do not have a compulsory educational law. Mr. Arnold. I want to say there that I was talking to George Thomas once at Heidelberg, Miss., and I asked him why he did not send his children to school. He said, " They won't let them go." I said, " There is no law to prevent them." " I know that," he said, "but I have been told that my children would be healthier if they remained away from that school, so I don't send them." As I say, the statute perhaps permits whites and Indians to go to the school together but the custom does not. Mr. Caeteb. Then they have no educational facilities at all ? Mr. Arnold. None whatever ; no more than a jack rabbit or a fox squirrel. Mr. Carter. Are they educated at all ? Mr. Arnold. Some of them learn to sign their name and read a very little. They learn a little at home when some person out of sympathy will undertake to teach them. Mr. Post. What do they do for a living? Mr. Arnold. They rent land on shares, generally, for one-half. Some white man will furnish them a team and the land, and by the time they pay for the fertilizer and grow a little cotton it takes about all of it to pay expenses. I saw a good many of them down there that had tuberculosis, and I said to them, "There is a tuberculosis camp down here " — I forget the name of the place, but it is down in Louisiana — and I said, Why don't you people go down there?" They said, "They won't take us." "Well," I said, "what do you' do? " " Why, we just lay here and suffer and die for want of medi- cine." I think Mr. Richardson placed in evidence the other day an affidavit from a physician as to the j)hysical condition of the Indians down there, and he also placed in evidence the affidavit of a druggist in a case in which an Indian had a prescription to be filled, but on account of having no money he suffered and died for the want of medicine. Mr. Carter. When did you make your first trip to Mississippi in the interest of these people ? Mr. Arnold. In 1896.. Mr. Carter. How many trips have you made there? Mr. Arnold. It would be impossible for me to say, but I have made a large number of trips down there. Mr. Carter. Could you estimate the number of trips you have made? Mr. Arnold. No; if it is necessary for me to get the exact number Mr. Carter (interposing). No; the point I am trying to get at is your familiarity with these people and their condition, and your ability to testify as to that condition, and I want to find out what opportunity you have had to make observation. Mr. Arnold. Well, I have made various trips down there. Mr. Carter. Have you made as many as 20 trips? Mr. Arnold. Probably more than that. Mr. Carter. How long did you stay there on a trip ? ENKOLLMENX IN THE FIVE CIVILIZED TEIBES. 14$ Mr. Arnold. Sometimes I stayed longer than at other times, bometimes 1 stayed a month; sometimes two or three months; and sometimes I did not stay quite so long, depending on what the cir- cumstances were. Mr. Carter. Now, what do you think the Government ought to do tor these people? What do you think the Government could do that would'be the most beneficial for them? Mr. Arnold. I think the Government should provide them first with homes and then with schools. Mr. Carter. Whereabouts? Mr. Arnold. In the State of Mississippi. Mr. Carter. Do you think they should continue to go on there un- der such conditions as you have described, being discriminated against by the whites in the State of Mississippi? Mr. Arnold. If they liad a little education and training, whereby they would receive some knowledge of the white man and his customs and ways, I believe that they would be all right there. But as I say, not being able to speak English, not being able to understand English, and not desiring to violate any of the rules of the white man, they are frequently imposed upon. " Mr. Carter. Would you advise the establishment of separat& schools for them, or would you advise trying to get them into the public schools? Mr. Arnold. Well; to begin with, I think it would be better to establish a school down there something on the same principle that it is in Indian Territory, a separate school for the benefit of these people, where they might at least receive the fundamentals of a common education. Mr. Post. Do the communities support the schools? Mr. Arnold. Yes. You take the Indians in Leake, Neshoba, and Scott Counties, they could easily be brought together. They are pretty well concentrated there. Mr. Carter. In Oklahoma we have public schools for both whites and Indians in which no discrimination whatever is made either in theory or practice, and then he has in addition to that his own school. Mr. Harrison. May I ask in that connection, simply as a matter of information, in Oklahoma do you have schools provided for by the State or the counties that teach for the Indian the Indian lan- guage, or do they teach the English language? Mr. Carter. They teach the English language only. They dis- courage talking the Indian language. Mr. Harrison. There are no schools that try to teach him in the Indian language? Mr. Carter. No; they discourage in all schools teaching the In- dian language, and try to teach them entirely in English. Now, Mr. Arnold, you spoke about getting them a little home in Mississippi. What opportunity would there be for getting them homes there ? Would you put them on public land ? Mr. Arnold. No ; purchase it. Mr. Carter. Purchase it from whom — from the Government' Mr! Arnold. From anybody. I do not suppose you would find sufficient public land to purchase for them. I presume you would have to purchase land from individual owners. 144 EXEOLLMENT IN THE FIVE CIVILIZED TRIBES. Mr. Carter. If they had title to the land, do you think they would be able to take care of it ? Mr. Arnold. Yes; I think so. You see these people are natural farmers. That is all they know. Now, there is Joe Kelly. I moved him in 1903 from Mississippi to Oklahoma, to Ardmore, and I no- ticed last year that he had taken more prizes than anybody else — over $1,600 in the way of premiums at the fair for products raised on his land. You give those Indians farms and put restrictions on them and they will make citizens that Mississippi herself would be proud of. They know nothing except physical, manual labor, and you give them an opportunity and they will make good. Five years ago I thought I would cease representing the Missis- sippi Choctaws; I could not afford, to do it any longer, and Wesley Johnson came to me with the tears trickling down his face, and he said, " You helped over 600 of my people to go to Oklahoma, where they are now living in prosperity. Will you help me ? " And I took his hand and I said, " God being my helper, if there is anything I can do to aid you people I will do it." Then we organized down there on the 10th of last May. I have gotten letter after letter from the Indians and from white people down there deploring their con- dition on account of the boll weevil eating up their crops last year. Those Indians are suffering for the very necessities of life. Mer- chants down there have said to me, " I will advance them food if you say so," but my finances will not permit me to do that longer. I have never asked one of these Indians for a penny — not one cent. ^Vhen we went to the Territory I paid my own expenses, and I am maintaining my own expenses and the expenses of local counsel from Mississippi here to-day representing them. Mr. Carter. How long will it take you to finish, Mr. Arnold? Mr. Arnold. I have two or three other little matters to read into the record, and then I want to offer a letter from the department. I will be through in about five minutes. Mr. Bond. I would like to have an opportunity to ask him some questions. Mr. Carter. You can do that at the next meeting. Mr. Arnold. I want to offer here a letter to the Secretary of the Interior dated November 13, 1909, signed by J. E. Arnold; also reg- istry receipt signed by the Secretary of the Interior, by William J. Frawley. This receipt is No. 188388, dated November 15, 1909. Now, I offer these for the purpose of showing when I filed with the Secretary of the Interior Joe Everidge's and Smallwood Nelson's and Jim Gordon's affidavits. (The papers referred to are as follows :) 620 Sixth Street NW., Washington, D. C, Novemhei- IS, 1909. Hon. Secbetary of the Interior, Washington, D. C. Dear Sir : lama Choctaw Jndian by blood. JIauy years ago I settled among my tribe in g»od faith and made application to the Choctaw Council for citi- zenship by blood of the Choctaw Nation. The Choctaw Council duly recog- nized me and my family as Choctaws by blood, as shown by the inclosed afl- davit made by J. W. Everidge. Thereafter the United States District Court for the Central District of the Indian Territory, Judge William M. Springer presiding, held that we are Choctaw Indians by blood. I settled upon the land of my tribe and made valuable improvements thereon, and made applica- tion to the commission having charge of allotments to the Choctaws for allot- ENROLLMENT IN THE FIVE CIVILIZED TRIBES. 145 ments for myself ana children. After this the citizenship court was created, u :^^ fi"i^*' '"^ deciding our case, did not pass upon our Indian blood at all, Dut held that we " are not entitled to be deemed or declared citizens of the Choctaw Nation * * *," and the commission, on this decision, refused to allot us our lands, although it has never found that we are not Choctaw Indians by blood. Will you recommend to Congress that legislation be enacted securing to me and my family our rights as Choctaw Indians by blood, or whatever is necessary to secure to us our rights. Assuring you of our appreciation of any help you will give us in this matter, I am, Tours, respectfully, J. E. Aenold. Registry Return Receipt. 56842. Received from the postmaster at (delivering office). Registered letter No. 188388. Date, November 15, 1909 (date of delivery). Secretary or the Interior (signature or name of addressee). Wm. J. Fbawley (signature of addressee's agent). Name of sender : J. E. Arnold, Washington, D. C. Mr. Carter. It is not your contention that the act of the Choctaw Council referred to as having authorized your enrollment has been destroyed is it? Mr. Arnold. Well, Mr. Hailey, in his affidavit, says it has been destroyed. Mr. Carter. He says the copy was destroyed. I am speaking of the original act. It should still be in existence. Mr. Arnold. I hope you will be able to get hold of it. I have been trying for years to get hold of it. Mr. Post. Won't that be on file in the archives of the nation ? Mr. Arnold. Well, it should be. Now, I want to read from the Congressional Record of May 2, 1914, page 8241, the statement of Mr. Owen in answer to a question by Mr. McCumber, at the time Senator Owen wanted to get printed a certain list of the people found eligible by the department [read- ing] : Mr. Owen. The ob.lect of it is to place before the Senate the list of those persons who are found by the Interior Department apparentliy equitably entitled to be enrolled, and the assent is given by the attorneys of the Choctaw and Chickasaw Nations and the Creek Nation, those principally involved, to the enrollment of those persons. It seems, from the statement of Senator Owen at that time, that the attorneys for the Choctaw and Chickasaw Nations assented to the enrollment of 21 Mississippi Choctaws, and I was wondering why they discriminated between the 21 and the others. Now, here is a letter signed by Joseph W. Howell, assistant attor- ney, appearing on page 183, Senate Document No. 1139, Sixty- second Congress, third session, being Reports of the Department of the Interior and Evidentiary Papets in support of S. 7625, "A bill for the relief of certain members of the Five Civilized Tribes in Oklahoma." Mr. Howell says [reading] : I ha.ve attempted in this report to state all material facts fully and fairly, as the same are known to me, and it is my conclusion that there are many 64969—15 10 146 ENBOLLMENT IN THE FIVE CIVILIZED TKIBES. persons, some of whom are full-blood Indians, who are entitled to enrollment as citizens or freedmen of the Five Civilized Tribes, who have failed to secure the right to share in the lands and moneys which are justly theirs, and that such failure is chargeable in large measure to the laws and to the administration of the laws relating to the subject. I am also convinced that there is a simple and feasible plan which, with the consent of Congress, would work justice in many worthy cases in a practical way and within a reasonable time. Mr. Carter. Does that conclude your remarks? Mr. Arnold. Yes; that concludes my statement. Mr. Carter. Now, the attorneys for the tribes will want to ask you some questions, and the committee will want to ask you some also, so we will take that up at the next meeting. Mr. Arnold. When will that be? Mr. Carter. Perhaps Tuesday next ; I am not sure yet. Then you want to be heard next, do you, Mr. Sullivan? Mr. StiLLivAN. Yes; for just 15 or 20 minutes. I have lived among these people for 40 years, and I think I can explain their condition. Mr. Carter. We will be very glad to hear you. The committee will stand adjourned, to meet on call of the chair- man. Subcommittee oe Committee on Indian Affairs, House of Representatives, Tuesday^ June ^, 1914. The subcommittee met at 10.30 o'clock a. m., Hon. Charles D. Carter pregiiUng. Mr. Carter. The committee will come to order. Who is next to be heard this morning? STATEMENT OF MR. J. E. ARNOLD— Resumed. Mr. Arnold. Do you wish to ask some questions ? Mr. Carter. I do not think I have any questions to ask. Perhaps some of the attorneys do. Mr. Arnold. I would like to have about fire minutes to close my remarks. Mr. Carter. Very well, you may proceed for five minutes. Mr. Arnold. We were talking about Senate Document 472. I have found another document, No. 478, that I would like to call to your attention this morning. I find in this document, dated Department of the Interior, Washington, April 24, 1914, signed by A. A. Jones, first assistant secretary, a letter addressed to Hon. Robert L. Owen, United States Senate, transmitting a list of the persons who have been found by the department apparently equitably entitled to enroll- ment on the rolls of the various tribes composing the Five Civilized Tribes of Oklahoma. Now, on page 6 of this document is a letter dated May 2, 1914, addressed to Hon. Robert L. Owen, United States Senate, signed Refdrd Bond, attorney for the Chickasaw Nation. On page 7 I find also printed a telegram dated Tulsa, Okla., April 30, 1914, signed by P. J. Hurley, attorney for the Choctaw Nation. Just preceding the last-named letter or telegram is a special list of persons agreed on April 28, 1914, to be enrolled as Choctaws ENEOLLMBNT IN THE FIVE CIVILIZED TBIBES. 147 by the attorneys of the Choctaw and Chickasaw Nations. This list reads as follows : The following list of persons, all of whom appetir to have been on the original Choctaw rolls by blood, seem in equity to be entitled to enrollment as members of the Choctaw Nation by blood, and it is agreed by the attorneys representing the Choctaw and Chickasaw Nations that they should be enrolled, to wit : James B. Nichols. Sylva Jewel Nichols. Nan V. Nichols. Orin M. Nichols. Oella May Nichols (now ScottJ. Amanda M. Nichols. Nenia May Scott. James W. Nichols. Lyda Lois Scott. Maggie M. Nichols (now Engle). John W. B. Nichols. Nettle Myrtle Nichols. Bessie Nichols. Louis A. "Nichols. Louis Herman Nichols. Osa Nichols. Golda Ula Nichols. Cora Lee Nichols. In his letter Mr. Eeford Bond says [reading] : Hon. Robert L. Owen, Chairman, United States Senate. Dear Sib: We, the undersigned, attorneys representing several of the five tribes, agree that for the purpose of obtaining an absolutely final settlement of the citizenship rolls and for the purpose of securing our peace, will agree to the enrollment of the persons enumerated In Senate Document 472, Sixty-third Congress, second session, and to the enrollment of the Nichols family, as enumerated in H. R. 13794, Sixty-third Congress, second session. Refokd Bond, - Attorney for the Chickasaw Wation. Mat 2, 1914. The telegram from Mr. Hurley is as follows [reading] : Tulsa, Okla., April SO, 191/,. Hon. Robert L. Owen, United States Senate, Washington, D. C: I acquiesce in your recommendation for enrollment, under letter of Secretary of the Interior, of persons whom he has found equitably entitled; also Nichols family, with understanding that this positively concludes enrollment. I suggest that you not agree to such enrollment until provision has been agreed to for vesting of tribal estate in individual members of the tribe and making final settlement. I do not consent to the enrollment of the Howell list. P. J. Hurley, What 1 wish to say about this is: I find on examination that he includes a family that was affected by the decision of J. T. Riddle and others in the citizenship court. I find they were what are com- monly laiown as citizenship-court claimants, and I was wondering why the proposition was made to discriminate between 21 Mississippi Choctaws — in which the total number is 1,200 — to discriminate be- tween 18 of what is commonly known as citizenship -court people and the balance of them. I was wondering why that proposition was made to discriminate between those different parties, when it is a notorious fact that the others have equally as meritorious claims. It is a proposition, however, that comes from the attorneys for the nation, and I am thankful that they were generous enough to make it in the interest of some one. There was something said when Mr. Eichardson was before this committee about the McKennon-roU Indians having moved to Indian Territory. I find that Tom Tubbee moved to Kiowa, Ind. T., in 1902. He is one of the persons identified by the McKennon report, and he remained there continuously, waiting and expecting to receive notice of identification, that he might appear before the 148 EJSTEOLLMENT IN THE FIVE CIVILIZED TRIBES. commission and receive his allotment. But he never received any notice and he is still living there at Kiowa, Ind. T., and when Mr. Richardson appeared before the committee, he filed a letter from Tom Tubbee, requesting Chief Wesley Johnson to look after his interests before your committee. Then there was something said about Pat Chitto, who testified as to what caused him and the other families to lose their opportunity to secure allotments in 1903. That question arose during Mr. Rich- ardson's discussion before the committee, and when I appeared here a few days ago I introduced a copy of Pat Chitto's testimony. Mr. Mills, a representative of the Government, hied himself away to Mississippi and told the Mississippi Choctaws that it was not necessary for them to pay attorneys ; that the Government was look- ing after their interests, and they wrote to Pat Chitto and Allen Willis and some other Choctaws there. Mr. Mills met them there in Mississippi and told them they did perfectly right in remaining in the State of Mississippi and not moving to the Indian Territory; for them to wait for the Government to move them ; that it was not necessary for them to pay attorneys or to make arrangements; that the Government would secure to him his right, thus endeavoring to shut off any effort that might be undertaken for them. On the other hand, here is another representative of the Government coming in and talking with the Mississippi lawyer who desired to assist the Mississippi Choctaws to secure their just dues, and informs him that it is very doubtful whether the efforts to relieve the Mississippi Choc- taws will ever materialize. Those are the tactics of these people, of the clerks and representatives of the Government. One man will go to Mississippi and tell the Choctaws it is not necessary to make any arrangements at all ; that the Government is going to take care of them and secure to them their rights. Then when some attorney in Mississippi becomes interested in the Mississippi Choctaws and undertakes to help them Mr. Carter (interposing) . When were these statements made, and what was the nature of the statements ? Mr. Arnold. The representatives of the commission told the In- dians down there it was not necessary to make arrangements to move them — that the Government would do that. Mr. Carter. When was that ? Mr. Arnold. That was when they were receiving applications in 1902 and 1901. Then Mr. Mills went down there in 1909 and met Pat Chitto and proceeded to get an ex parte statement from him, an effort, I presume — -I have never been able to see the statement — an effort to get him to retract on some of his testimony he gave at Meridian. Mr. Carter. Have you a statement from Mr. Mills — a written statement ? Mr. Arnold. No. I am stating what Pat Chitto told me person- ally. When I speak of what Mills told him I am speaking what Pat Chitto told me. Mr. Carter. You are speaking of what Pat Chitto told you that Mills said to him ? Mr. Arnold. Yes. Now, then, the second statement made — ^I have a letter here about this second Government man who went to Missis- KNKOLLMENT IN THE FIVE CIVILIZED TBIBES. 14Q sippi, dated Meridian, Miss., May 18, 1914, addressed to me, which I will read [reading] : [H. Talbot Odom, attorney at law, Miazza- Woods Buidllng.] -•^ J ,, _ _ . Meeidian, Miss., May 18, 191/,. Mr. J. E. Abnold, . w > f Attorney at Law, 118 E Street NW., Washington, D. 0. Deae Sik: Your favor of the llth instant to hand and contents carefully noted. ' I am complying to your request in regard to sending these papers to our Senator, James K. Vardaman, and herewith inclose you copy of letter which I am mailing to him to-day. I feel, however, since talking to Mr. Commodore James, Indian claim agent from Oklahoma, who has been in this city for the past few days, that it is very doubtful- as to whether our efCorts in this matter will ever materialize. Hoping, however, that you will succeed in having these claims established, I am. Very truly, yours, H. Talbot Odom. You see those are the tactics of the Government agents. They get a little commission stuck in their pockets and go to Mississippi and proceed to make statements that keep the Indians upset and un- certain all the time. They do not know what to believe. They say, " The Government says they are going to move us." Then the Gov- ernment does not do it, and when we go down there and make an effort to move them, then this Commodore James goes down there as late as the 18th_ day of May of this year and makes this statement in an effort to discourage an attorney from prosecuting the claims. Mr. Cahtee. Who is this man James ? Mr. Arnold. I do not know. Mr. Carter. Does he represent the department? Mr. Arnold. He represents himself as a representative of the de- partment, " Commodore James, Indian claim agent." Mr. Carter. Let me see that letter, please. [Mr. Arnold hands let- ter to Mr. Carter.] Mr. Arnold. That is calculated to discourage any efforts for the relief of the Mississippi Choctaws. I have made the department acquainted with the condition of the Mississippi Choctaws, and be- lieve that when report is made on the bills which have been referred to the Indian Office for report, the office will be as solicitous of their conditions as it is of the condition of the Choctaws in Oklahoma. When hearings were being conducted by the Senate Indian Com- mittee on the provision for the relief of the Chickasaw and Choctaw Indians of Oklahoma, several statements were made before the com- mittee which I wish to read. I want to call attention first to a remark by Senator Gore appearing on page 927 of the hearings before the Committee on Indian Affairs, United States Senate, Sixty-third Con- gress, second session, on H. E. 12579 [reading] : Senator Goee. I wish to make a statement with reference to the appropriation bill providing $100,000 capital [per capita] payments to the Chickasaw and Choctaw Indians, and I might say that I come begging for this amount as we come begging for our own. I would lil?:e to appropriate the Senator's eloquent appeal in the interest of the Mississippi Choctaws this morning. Then he goes on like this on page 928 [reading] : Now, the situation of these Indians as to their industrial and financial con- dition, Is stringent in Oklahoma. * * * This has resulted in general de- 150 ENEOLLMENT IN THE FIVE CIVILIZED TEIBES. pression and hard times tlirougliout the State of Oklahoma, and it pinches everybody, and it pinches those who can not make adequate use of their credit more than it does anybody else. Then, on page 929, the record says [reading] : Senator La Follette. The suggestion was made with regard to the Choctaws that the average value of an allotment there was found to be something like $8,000. Senator Goeb. That might be true now, but I speak of the original basis on which the lands were apportioned. Of course a good deal would not be any- thing like $8,000. A good deal of the land in Oklahoma is not worth anything like $8,000 for a quarter section of land, or even 320 acres, but a great deal of that land would be worth more than $8,000 ; but to embark upon that proposi- tion you have got to take into account the proceeds arising from segregated coal and asphalt lands, because it would increase their fund if you averaged the allotments at their present valuation. Now, then, Mr. Meritt, Assistant Commissioner of Indian Affairs, appears on the scene and makes an appeal in the interest of the Choc- taws in Oklahoma, seeking to get an appropriation to aid them out there. He says this on page 931 [reading] : Mr. Meritt. Some of them are in immediate need. They have had droughts in Oklahoma, as Senator Gore has stated, and some of the Indians are in serious need of assistance, and it is their money, and they are dying off without even participating in this money now in the Treasury of the United States and deposited to their credit in the local banks. Now, let me see how bad they need it in Oklahoma. I have a clipping here from one of our daily papers, and I would like to contrast the condition of the Indians in Oklahoma with the condi- tion of the Indians in the State of Mississippi. This is from the Evening Star of May 27, 1914. Mr. Bond. I object to this line of argument as being incompetent, irrelevant, and immaterial, and not tending to prove or disprove any of the issues before the committee. Mr. Carter. Well, we are proceeding here in kind of a go-as-you- please manner. Mr. Bond. Do I understand that it is relevant to establish the needs and' conditions of the Indians in order to determine their right to citizenship ? Mr. Carter. Not in the least, but we have had a great many irrele- vant matters come in, and if Mr. Arnold will not take up too much time of the committee we will let him proceed. Mr. Arnold. This is a clipping from the Washington Star, dated May 27, 1914, and shows that Oklahoma needs workers, that it will require 12,000 to 15,000 helpers in the harvest fields there [reading] r OKLAHOMA NEEDS WORKERS — WILL REQUIRE 12,000 TO 15,000 HELPERS IN HARVEST FIELDS. Acting on information of Charles L. Dougherty, labor commissioner of Okla- homa, that from 12,000 to 15,000 men would be required to help harvest and thrash the wheat crop in that State, Secretary Wilson to-day ordered bulletins placed in post ottices throughout the country describing Oklnhoma's needs. Inquiry has been made of State officials in Kansas, Nebraska, North and South Dakota, Iowa, Wisconsin, Missouri, and Minnesota about their require- ments for extra help during the harvest time. Commissioner Dougherty stated in a telegram to Secretary Wilson that wages in Oklahoma would be from $2 to $2.50 a day with board, and that of the 12,000 or 15,000 men required for the wheat harvest 85 per cent would find additional employment handling the forage crops, promising four to six months of steady work. • ENROLLMENT IN THE FIVE CIVILIZED TRIBES. 151 If the Mississippi Choctaws living in Mississippi had such oppor- tunities in Mississippi, they would not be starving for lack of money to purchase food to live on. Mr. Carter. I think, Mr. Arnold, that might have more effect upon the followers of Mr. Coxey than upon the rights of the Choctaws and Chickasaws. Mr. Arnold. I had some letters from Mississippi some time ago in reference to the Indians starving down there, and I sent the letter tind the affidavits to the Commissioner of Indian Affairs on February 25 of this year, and on March 9, 1914, 1 received the following letter [reading] : Department or the Interior, Office op Indian Affajbs, Washington, ilaroh d, IBlJf. Mr. J. E. Arnold, 112 E Street NW., Washington, D. C. Sib : , Tlie office lias received your letter of February 26, 1914, inclosing a com- munication from A. J. Brown, of Conehatta, Miss., in the matter of his furnish- ing provisions to certain Mississippi Choctaw Indians. You express the hope that something will be done for the relief of the Mississippi Choctaw Indians. The matter of legislation pertaining to the claims of such Indians is being given careful consideration. The office can not at this time advise you as to the views of the Secretary of the Interior concerning the Mississippi Choctaw claims or legislation in connection therewith. Respectfully, E. B. Mebitt, Assistant Commissioner. That concludes my statement, but I want to offer this letter, to- gether with part of my letter that I wrote to the cornmissioner, to- gether with this clipping. Mr. Carter. As a matter of fact, Mr. Arnold, if the Choctaws in Mississippi and the Choctaws in Oklahoma would all devote their energies to actual manual labor that might be found at hand there would not be any of them in very much want, would they? Mr. Arnold. If the Mississippi Choctaws could find the labor. Mr. Carter. Isn't there any labor in Mississippi? Mr. Arnold. Very little. These people are not skilled laborers, and the boll weevil has invaded that country very badly in the last few years. Mr. Carter. None of them are skilled laborers ; none of them know very much about work either in Mississippi or Oklahoma, but as a matter of fact the Mississippi Choctaws that have come to Oklahoma seem to know as much about work as the Oklahoma Choctaws. Mr. Arnold. Yes; because they have been working in Missis- sippi. A man who has $8,000 worth of real estate has a great ad- vantage, because he can get credit. Mr. Carter. It does not give him much credit if he can not hy- pothecate his real estate. Mr. Post. How many persons are embraced in your mother's case? Mr. Arnold. About two dozen— Martha Arnold; Frank J. Arnold, his wife Fannie Arnold, and son, James F. Arnold; Wootson H. Arnold and wife Kittie Arnold; Jones N. Arnold and wife Julie Arnold, his son Koscoe C Arnold and his wife Dora Arnold and child ; James E. Arnold and wife Gena Arnold and their children, Hugh Arnold, Elizabeth M. Prescott, nee Arnold, her husband James R. Prescott, and child Claire Prescott; Arthur W. Arnold, and wife Primrose, and child; Evelyn Grace, Tottie Eay, Hazel, Grace, and Park Arnold. 152 BNEOLLMENT IN THE FIVE CIVILIZED TRIBES. Mr. Carter. Do you gentlemen want to ask any questions? Mr. Bond. I would like to ask a few questions. Mr. Carter. Very well, you may proceed. Mr. Bond. Mr. Arnold, do you contend that Martha Arnold and her family were admitted to citizenship by act of the Choctaw Council ? Mr Arnold. I do, as set out in Everidge's and Nelson's and Haley's affidavits. Mr. Bond. Isn't it a fact, Mr. Arnold, that these affidavits simply state that she was admitted by a committee appointed by the council? Mr. Arnold. Well, as I say, as set out in the affidavits. You have the affidavits before you there. Mr. Bond. I am familiar with the affidavits, and I have them be- fore me ; but I am asking you isn't it a fact that those affidavits sim- ply allege that Martha Arnold and her family were admitted by a committee appointed by the council, and not by the council itself? Mr. Arnold. It was a committee created by the council. Mr. Bond. Do you not know under the Choctaw law it was neces- sary, in addition to the recommendation by a committee, to be ad- mitted by act of the council itself in order to obtain the right of citi- zenship in that tribe ? Mr. Arnold. That would depend upon the language of the act creating the committee, would it not ? Mr. Bond. Are you familiar with the provision of the Choctaw statutes providing for admission of applicants to citizenship in that nation ? Mr Arnold. I am not familiar with all of the statutes ; no. Mr. Bond. You have a report from the Indian Department with reference to the citizenship of Martha Arnold, have you not ? Mr. Arnold. Yes. Mr. Bond. Does not that report set out the fact that she was never admitted by the Choctaw Council? Mr. Arnold. Why, it is stated — as I said, the records were burned, the papers in the case were burned in Stuart & Gordon's office. Mr. Carter. The papers were reinstated, were they not ? Mr. Arnold. They were incorrectly reinstated. Mr. Bond. The papers alleged to have been burned were supposed to have been burned in the law office of the applicant's attorney, were they not ? Mr. Arnold. Oh, no; in the office of Stuart & Gordon, representing the Choctaw-Chickasaw Nation. Mr. Bond. Are those original papers or copies of the originals? Mr. Arnold. They were the original petition of the Dawes Com- mission of 1896 ; it was a copy of the original resolution of the council creating this committee. Mr. Post. Was that the original record ? Mr. Arnold. I am unable to say whether it was the original or a copy. I presume it was a copy, and when an appeal was taken to the district court Stuart & Gordon represented the Choctaw Nation and the papers Avere destroyed by fire, so Gordon says, and Mr. Haley, in that affidavit, in their office. Mr. Haley says in his affidavit there that he has knowledge that the resolution, along with the papers, was destroyed. ENROLLMENT IN THE FIVE CIVILIZED TRIBES. 153- Mr. Bond. The paper alleged to have been destroyed was not the act of the council admitting your family to citizenship, but it was simply a resolution of the citizenship committee, was it not? Mr. Arnold. Why, the act authorizing the committee, together with their action. Mr. Bond. Not the action of the council ? _Mr. Arnold. It was the action of the council authorizing the com- mittee to do it. Mr. Bond. The Indian Office, in its report, further states that the evidence was so conflicting in the Martha Arnold case that it would not attempt to pass upon it, does it not ? Mr. Arnold. I am not certain about that. Have you the report there ? Mr. Bond. No; I. do not have it here. You were reading it the other day, and I presume you are familiar with it. Mr. Harrison of Mississippi. May I ask, Mr. Chairman, is it relevant to go into all these cases as to the rights of the Mississippi Choctaws ? Mr. Carter. Well, Mr. Harrison, this committee, as you remember,, was appointed to look into all enrollment matters. Mr. Harrison. You say the committee was appointed for that purpose ? Mr. Carter. For all enrollment matters ; yes. Mr. Harrison. The reason why I asked the question is because the committee, I know, has been diligent in trying to get at some con- clusion in the case, but circumstances have arisen that have deferred consideration of these cases for a long time, and I am sure if you go into these specific matters you will never get away from them to conclude the merits of this particular bill. Mr. Carter. I think there is a good deal of truth in that, but since this committee was appointed to look into all cases, and Mr. Arnold's case has been one of the prominently contested cases of the citizen- ship claimants, he had asked me to place his specific case before the committee, and I had thought perhaps it would be well enough to let him explain it. I think perhaps it will be the last specific case we will have. Do any of you other gentlemen wish to ask any questions ? Mr. Ballinger. Before the case is finished, I take it, there will be further evidence respecting the rights of resident Choctaws. Mr. Harrison. My impression was that this bill of mine was going to be considered first and then these other matters would be con- sidered afterwards. I have no objection to them, but I do not know anything about these specific matters and do not care anything about them. Mr. Carter. I had supposed that Mr. Arnold's was a Mississippi Choctaw case. Mr. Arnold. It will probably develop that it is a Mississippi Choctaw case. Mr. Carter. I take it that if Mr. Harrison's bill would pass they would all be Mississippi Choctaw cases. Mr. Arnold. I make that statement in regard to niyself for the reason that my mother was born and raised in Mississippi. Mr. Carter. How long will it take you to conclude ? Mr. Bond. I do not care to ask but one or two other questions. 154 ENROLLMENT IN THE FIVE CIVILIZED TRIBES. Mr. Carter. Have you any questions, Mr. Hurley? Mr. Hurley. No. Mr. Bond. Yoli were denied citizenship, Mr. Arnold, by the Com- mission to the Five Civilized Tribes; you appealed to the Federal court for the central district of Oklahoma, where you were admit- ted to citizenship, and thereafter were denied citizenship by the dhoctaw-Chickasaw. citizenship court, and you filed a motion for a rehearing and review before the Interior Department. Is that true ? Mr. Arnold. Part of it is true. We were denied by the commis- sion, appealed to the district court, were admitted, denied by the citizenship court, and, I think, probably an appeal was filed with .the department in the case, and I think a motion was pending in the case when the roll was closed on March 4, 1907. It reached the office too late to be passed upon. I have a copy of that letter setting out the facts. Mr. Bond. Were you present in the Choctaw-Chickasaw citizen- ship court when your case was tried? Mr. Arnold. I was there part of the time. Mr. Bond. You have seen fit to criticise Judge Weaver who was a member of the court, in your address before the committee, have jon not? Mr. Arnold. I beg your pardon, I did not. I simply used the criticism that Mr. Burke, former chairman of the House Committee on Indian Affairs, used. I did not make any criticism whatever. I simply read from the report that Mr. Burke made with reference to it. Mr. Bond. I will ask you if you did not use this language, and I will ask you if it appears in quotations [reading] : It is not surprising that Judge Weaver should uot be satisfied that there was not sufficient evidence before him to satisfy him. None are so deaf as those who will not hear. Do you believe sufficient evidence can be produced to satisfy the Anheuser- Busch Brewing Co., or auy of the large brewing companies of the Nation, that prohibition was a good thing. Why, certainly not. Mr. Arnold. I made that statement based upon, as I say, Mr. Burke's report. I verified that statement by the report made by a former chairman of this committee. Mr. Bond. Do you state before the committee now that it was not your intention to criticise Judge Weaver in that statement ? Mr. Arnold. My intention was based on criticism — if you term it criticism— in that report. The report actuated me to make that state- ment. Mr. Carter. Is that all? Mr. Bond. I believe that is all. Mr. Carter. Did you ever see this original act of the Choctaw Council creating the committee that tried your case? Mr. Arnold. Well, I may have seen it. At the time this case was before the council my brother, J. N. Arnold, was looking after it and filed the original papers with the Dawes Commission. When I say "original papers " I mean the application with the Dawes Commis- sion in 1896, and he has an affidavit — offered the affidavit here, I put a copy of it in the record. The original affidavit was filed in the Interior Department. ENROLLMENT IN THE FIVE CIVILIZED TRIBES. 155 Mr. Caki'eb. Bo you know whether the council clothed this com- mittee with conclusive jurisdiction to settle citizenship cases? Mr. Arnold. I have this knowledge, that the chairman of the com- mittee, Mr. Everidge, told me, and a number of other members of the committee. Mr. Carter. You do not know anything from the records. Mr. Arnold. I may have seen the records. I think I have. I think 1 would be safe in saying I have seen the records. Mr. Carter. What efforts have you made to get possession of this original act or a certified copy? Mr. Arnold. Well, now, I will say this : When those papers were destroyed by fire in McAlester in connection with the reinstatement of those papers the attorneys for the nation said that the papers were destroyed by fire in their office, and they agreed to the papers being reinstated in this manner, saying, " We know that you are In- dian, and the evidence will develop the fact that you are Indian, and when the case goes to court you will be able to show you are of Indian blood." We have made search year after year for the original rec- ords, but we have never been able to find them. Mr. Carter. How did you go about it ? Did you go to the archives of the Choctaw Nation and try to get them there ? Mr. Arnold. Yes, sir; we applied to the Choctaw Nation and were told for a time that the original records in all these matters, the act of the council, were in the hands of the attorneys for the nation — that is, Mansfield, McMurray & Cornish, when they represented the Choctaws down there — and of course were not able to learn anything so long as the records were in their office, because they seemed to be hostile. We afterwards learned that the records had been sent to Moskogee, and I- frequently took the matter up with the Commission to the Five Civilized Tribes, and they tried to get the original act of the council. Mr. Carter. Does the Choctaw law require that the original act be kept in the archives of the nation ? Mr. Arnold. Perhaps that is true ; but we were not the custodians of the original papers. The real custodians of the papers were Stuart & Gordon, and perhaps they could tell you. Mr. Carter. The national secretary is the custodian, is he not ? Mr. Arnold. He should be, as I understand it. Mr. Carter. Doesn't the Choctaw law require that all of these rec- ords shall, be kept in a book ? Mr. Arnold. Yes ; I understand so. Mr. Carter. Did you ever try to see that ? Mr. Arnold. Yes. Mr. Carter. From the national secretary ? Mr. Arnold. The man who I understood was national secretary. Mr. Carter. Who was that ? Mr. Arnold. I can not think of his name now. Mr. Carter. Did you go to Tuskahoma ? Mr. Arnold. No; I wrote this party a letter. I probably have a copy of that letter in my files. Jacob Jackson, I think, was the sec- retary or assistant secretary. " Mr. Carter. Now, I should think you would be able to get that original act yet if you tried. 156 EJSTKOLLMENT IN THE FIVE CIVILIZED TBIBES. Mr. Arnold. .Well, probably you can do that now, but, as I say, we have not the custodianship of those original papers, neither do we have a copy of the petition nor a copy of the acts of the council, which were destroyed, and it may be difficult for us to get that peti- tion that was destroyed in Stuart & Gordon's office Mr. Carter. The act was not copied in any papers or hearings in your possession? Mr. Arnold. The papers that we have are filed with the Dawes Commission, and were afterwards destroyed by fire, and we have not been able to learn anything about it. If it was ever copied into the journal of the Choctaw Nation, we have not been able to learn it. Mr. Carter. You never called on the secretary in person for that act? Mr. Arnold. No; I wrote Jacob Jackson, and was afterwards m- formed that the papers were in the office of Mansfield, McMurray & Cornish, at McAlester, and I took the matter up with them, but re- ceived no information, any more than that they had the papers and that they were private information. Mr. Carter. Now, Jacob Jackson, the national secretary of the Choctaw Nation, informed you that the original act was in the office of Mansfield, McMurray & Cornish? Mr. Arnold. No; I did not say that Jacob Jackson was secretary; I say he was probably assistant secretary. Mr. Carter. You do not know who the man was that wrote the letter to you? Mr. Arnold. As I now recall it, I addressed my letter officially to the secretary of the Choctaw Nation, and Jacob Jackson was the man who signed the reply. Mr. Carter. But you did write to the secretary himself ? Mr. Arnold. I addressed it to the secretary, and Jacob Jackson answered it. Mr. Carter. Did you have your attorney examine the record? Mr. Arnold. I took the matter up with my attorney, Mr. J. G. Ralls, of Atoka, Olda., and had him make inquiry for these papers. Mr. Carter. Now, Mr. Arnold, that is a very important paper in your case, and it was only a short distance from where you lived over to Tushkahoma. It seems to me that in view of the amount involved to you it certainly would have justified a trip by you over there to at least get a positive refusal from the secretary, if nothing more. Mr. Arnold. Pardon me, that is just exactly what I did in the person of my attorney. Judge Ealls, of Atoka. He was attorney of record, representing my mother. Mr. Carter. He made a trip to Tushkahoma, did he ? Mr. Arnold. Yes. Mr. Carter. He called for the act, did he? Mr. Arnold. He said he did. That is his statement, and I have confidence that he did it, because he said he did. He said that was the object of his going over there. Mr. Carter. Is Judge Ralls still living? Mr. Arnold. Yes ; he is living in Atoka. Mr. Ballinger. If I may make a statement in that connection; I personally examined the records now in the custody of the Commis- sion to the Five Civilized Tribes, the records of the Choctaw Nation turned over to the commission, and the very facts about which you ENROLLMENT IN THE FIVE CIVILIZED TRIBES. 157 are making inquiry are disclosed by those records, as I know of my own personal laiowledge. Mr. Carter. Is the act with the records? Mr. Ballinger. No, sir. The action here taken was under the general custom prevailing in the Choctaw Nation by which a citizen- ship committee of the Choctaw Council made inquiry into the rights of applicants and reported the facts to the council, and the council acted upon them. Mr. Carter. And there was no conclusive action until the council acted? Mr. Ballinger. None whatever. Mr. Richardson, I would like to make a statement about this matter. Mr. Arnold, about two years ago, had me look into it some, and I did not have personal access to the papers down there, because I did not go down there, but I went here to the department and ascertained their custody and went over carefully their report and the information that they had here about those papers. I wrote to the office in Oklahoma, to the commission — not the commission, but the agent or whoever it was that succeeded the commission — to the commissioner himself. I ascertained that an act was passed — a special resolution was passed in this case, as appears from the report of the daily proceedings — a special resolution was passed creating a citizenship committee, but this resolution does not appear anywhere in the records and they have not been able to find it. There was a special committee appointed, consisting of Everidge and several ■ other gentlemen, prominent members of the Choctaw Council at the time, but what their powers were of course does not appear, because it was a special resolution. Mr. Carter. I am somewhat familiar with this tribal procedure prior to the time the Dawes Commission took charge of the making of the tribal rolls, and I knew of no act being passed giving any committee the right to admit people to enrollment. I do not say it was not done in this case, but the customary proceeding was that committees were appointed just as this committee is appointed, to investigate the rights of claimants and report back to the council. Now, I would like to ask Mr. Arnold another question. "Was this committee selected from the legislature? Mr. Arnold. Yes; it was selected from the legislature— from the Choctaw Legislature. Mr. Carter. That was the customary procedure, but I do not know what was done in your case. Mr. Ballinger. Now, I ask if this particular law to which Mr. Richardson makes reference— it will appear in the compiled and printed laws of the Choctaw Nation, which are easily accessible — can be obtained easily ? Mr. Carter. When was it passed ? Mr. Ballinger. This was a special law for his particular case. Mr. Carter. The committee requested a special session of the coun- cil. Now, I want to know when the law was passed. When was it, Mr. Arnold? . , , , j. •, Mr. Arnold. I am not able to give you the date ot it. Mr. Eighardson. I think this committee was created under a reso- lution. It was not termed an act; it was a resolution of the com- mittee and was not printed. The records show that such a resolu- 158 ENROLLMENT IN THE PIVE CIVILIZED TRIBES. tion was passed, but it is not in the printed reports. The Interior Department has taken the matter up with a number of officials there, but there has not been anyone who could produce that resolution, but the records show that the resolution was passed at that time. Mr. Bond. That matter has been thrashed out by three different tribunals. Mr. Carter. Now, then, let us see if we can agree on what is a Mississippi Choctaw. Isn't that a Choctaw who' was not physically present in the Choctaw-(l!hickasaw Nation of the Five Civilized Tribes on June 28, 1898 ? If he was in one of those tribes on June 28, 1898, was he not entitled to enrollment, without reference to whether he was a Mississippi Choctaw or otherwise? Mr. Ballinger. The term " Mississippi Choctaw " is, in fact, a mis- nomer. All ChoctaAvs were Mississippi Choctaws. The term arose — the distinction was first applied in 1896, when applicants applied with the commission under the act of June 10, 1896, for enrollment as citizens of the Choctaw Nation. The question arose at that time as to the rights of those who were nonresidents. Mr. Carter. On June 28, 1898? Mr. Ballinger. No ; back in 1896, under the act of June 10, 1896, the question arose as to whether or not a nonresident at the date of the passage of that act could apply to the commission and secure enrollment. Mr. Carter. Now, then, here is a little clearer statement of the case, perhaps : All those who were within the limits of the Five Civ- ilized Tribes on June 28, 1898, who were at the time enrolled as In- dians, would not be classified as Mississippi Choctaws. Mr. Ballinger. That is true. Those were what is known as resi- dent Choctaws. Mr. Carter. Yes. Now, I would like to hear Mr. Harrison on this, because he is interested principally in the Mississippi Choctaws. Is that your understanding of the definition of a Mississippi Choctaw? Let me state it again, by stating what a Mississippi Choctaw would not be. Any Choctaw Indian who was within the confines of the Five Civilized Tribes on June 28, 1898, and duly enrolled, would not be considered a Mississippi Choctaw, would he? Mr. Harrison. My idea about what a Mississippi Choctaw is is those who claim rights under the fourteenth article of the treaty of 1830; that is, those who desired to stay in Mississippi under that article. Mr. Carter. If he was in Oklahoma on Jime 28, 1898. and was duly enrolled, that would settle his status anyway, would it not, wititiout reference to whether he was a Mississippi Choctaw or not ? Mr. Harrison. Well, I do not know about that. I think those who desired to stay and did remain in Mississippi under article 14 of the treat}' are Mississippi Choctaws. Of course, if they removed out ' of Mississippi and went into Oklahoma, then, I suppose, if they get on the rolls they are not Mississippi Choctaws. Mr. Carter. He would be a resident Choctaw, then? Mr. Harrison. Yes; he would be a resident. Mr. Carter. That is what I think the definition would be. I believe we are through with Mr. Arnold now. Do you want to speak next, Mr. Sullivan? ENROLLMENT IN THE FIVE CIVILIZED TRIBES. ISO' ^^' ^' ?■ S^^^i"*'^^. Congressman Aswell, of Louisiana, desires to appear before the committee, and I think I can easily get through m 15 minutes, so I wish to give way and follow him. Mr. Carter. We will be very glad to hear Mr. Aswell. STATEMENT OF HON. JAMES B. ASWELL, A EEPRESENTATIVE IN CONaRESS FROM THE STATE OF LOUISIANA. Mr. Aswell. Mr. Chairman and gentlemen, the Government,, through the neglect or the crookedness or incompetency of its agents,, has no right in law or equity to take advantage of its wards. I think that is fundamental; Now, during these years it has been effectually demonstrated, to my mind, that these wards in Mississippi and Louisiana, because of their poverty, their isolation, and their ignorance of conditions, have suffered, and the Government can not afford to take advantage of those conditions to punish or neglect ii;s wards. It is therefore clear to me that these people in Mississippi and Louisiana are Mississippi Choctaws. They are Indians with the same blood and the same rights, although they have been shut out because of a technicality. They are Indians, and this Government faces the cold proposition^ the cold fact, that it has failed to take care of them in the same way it has the others, and it does seem to me now that all questions of right and honesty and justice would demand that they be given a chance to be taken into this class of wards. And whether this Harri- son bill comes before Congress by a majority or minority report makes no difference whatever. If it gets onto the floor of the House it will pass, because the people of this country and the Members of this Congress believe in right dealing with helpless people such as these; and I want to add my indorsement accordingly to the Harri- son bill and to what has been said on that side. All that has been said against it does not get away from the cold fact that here are help- less wards, dependent upon this Government, who are in poverty^ and who are making a just demand that they be taken in. STATEMENT OF MR. T. B. SULLIVAN, OF CARTHAGE, MISS. Mr. Sullivan. I limited myself to 15 minutes, and while I will not take up much of your valuable time, I will probably go a little beyond that. I think I will get through by 12 o'clock, but I do not wish to inconvenience the committee or delay any other matters. If the gentlemen who desire to ask questions will put their inter- rogatories to me when I am through, I will be glad to answer any- thing I can in the clearest way possible, and it will expedite what I had to say very much if I can proceed without interruption. On Friday morning, the 12th day of October, 1492, when Colum- bus landed on the island of San Salvador, having sailed for the West Indies, and believing that he had landed there, he found in- habitants, and, thinking they were inhabitants of the West Indies, he called them Indians. A little later, when William Penn was remonstrating with the King of England to allow him to come over to the Western Hemis- phere, the King said, " What, you go over there? Those savages will murder you. It takes my soldiers to deal with them," or something 160 ENROLLMENT IN THE FIVE CIVILIZED TEIBES. to that effect. Penn said, " I would deal fairly with them ; I would buy their lands from them." " Their lands," said the King, " They are my lands." " What right have you got there ? " said Penn. " The right of discovery, sir," said the King. In 1803, under President Jefferson's administration, was purchased from Spain, for $15,000,000, what was then known as the Louisiana Territory, and which now comprises the States of Louisiana, Mis- sissippi, Arkansas, and part of Alabama. In 1817 there was carved from that Territory and admitted into the Union what is now the State of Mississippi. In 1820 there occurred between the agents of the Government and these same Choctaw people, at Doak's Creek, 23 miles west of where I now live, the treaty of 1820. I shall digress a little here to say that as to the interpretation of those treaties and subsequent acts of Congress, I shall not touch upon them because they have been very ably handled by my colleague, Mr. Eichardson. Ten years later, in 1830, occurred between the agents of this Gov- €rnment and the same people, the treaty of Dancing Rabbit Creek, 45 miles northeast of where I now live in Mississippi. I have lived among these people for 35 years, but I do not know whether I can bring you anything new about them. I shall base ' most of my talk to the committee on their present condition. In 1900 I was commissioned by the Federal Government as census enu- merator for the south half of the district in which I live. I wish to say right here that in Leake County — — • Mr. Post (interposing). You say the south half of the district. What do you mean by " district " ? Is that the congressional dis- trict? Mr. Sullivan. No, sir; I mean the supervisor's district. In some States it is known as the commissioner's district. I will explain that to you. My county is 24 miles square, and it is divided into five dis- tricts. Over each one of these districts there is a supervisor to super- vise the business of the county. They are known in some States as commissioners. I was the tenth enumerator of the county. In that district I think I enumerated 240 or 260 of those Choctaws. Just west of the little town in which I live, off the railroad, there is a territory 70 miles square without a railroad, just west of the little town of Carthage, on the banks of the Yokahockany, which was laiown as Indian Town. There is no town there. There are some little cabins daubed with mud, and something nearly approaching the oldtime wigwam. I had been through there a time or two, and I rode out there to take the census, and at that time there were a great many there. There were probably 250 or 260 in one-tenth of the -county. Well, I spent nearly a day in there, and I think I got two. In many instances the men were gone. I met numbers of them that •could not speak English, and they would not talk to me, and finally T gave it up and left the district. I then called up Mr. Bordeau, the State supervisor, and told him what I was up against, and he suggested that I recommend some young Indian man who could use English sufficiently well to be an interpreter, and he would try and have him appointed. I saw Mr. C. W. Triplett, and he recommended Pat Chitto. We called up Mr. Bordeau, at Meridian, 70 miles away, and told him about it, and he succeeded in having him appointed. They gave him $2 a day, and he went with me, and we had no further trouble. ENEOLLMBNT IN THE FIVE CIVILIZED TEIBES. 161 In taking the census we began June 1, and it was supposed to con- clude in a month's time. We were required to take d list of deaths for 12 months past, and inquire what the family said was the mat- ter, and find the physician and ask him what was the matter. The death rate among those people was so much greater, to my mind, than it was among the colored people or white people that I investi- gated, and found that the rate was 2 to 1. The principal diseases were typhoid fever, tuberculosis, and pneumonia. Those are the things chiefly reported. This may be somewhat off the question, but I merely refer to it for your information. There is about 1 out of 80 of these people that can read and write ; and I want to give you the school condition as near as I can. They have no schools; and here I wish to refer to a statement made by Mr. Arnold the other day. The Choctaws are very few — about 1,200 in all the State of Missis- sippi — and I wish to show the distinction there. The colored race is more populous in my State than the white. They have good schools, good farms, and are making money. Many of them are doing well. Mr. Carter. The colored people? Mr. Sullivan. Yes. Some of them have good farms and good etock, and they have good schools provided for by law. Mr. Carter. Do the Indians have any schools ? Mr. Sullivan. No ; they have no schools whatever. Mr. Carter. Then your State does a great deal more for the negroes than it does for the Indians ? Mr. Sullivan. I am getting to that. It does not do anything for the Indians. Mr. Carter. Do they allow them to attend the white schools ? Mr. Sullivan. No, sir. Now, we have in Mississippi what is known in the railroad passenger business as the "Jim Crow law." That is, it is a criminal offense for a colored person to be found in a white coach. But the blacks are strong enough and able enough to make themselves felt and have their own trains or separate coaches. They have as good coaches as the white man, and they are in the same trains. Perhaps this coach will be colored and this one will be white, but they are all separated. Now, the Indians are weak; there are only 1,000 or 1,200 of them. ' He does not have much business capacity, and he goes along and hardly ever makes any complaint. If you deal with him and he does not like it, the first thing you know he is gone, but he does not say anything about it. That is the situation there. The Indian is weak; he is not able to make himself felt, and he is not desirous of doing it. ,..-,,,. 1 X, Mr. Carter. Where does the Indian ride when he rides on the train? . , , ^ ,, Mr. Sullivan. In the coach with the negroes. On the same trip with Mr. Arnold I saw them sent into the coach with the darkies. Further on, when we got to«the station, the proprietor of the hotel there suggested to the liveryman that he would not let the Indian come into the hotel, but he would let him come into the kitchen. Now I am not begging for these Indians, but they are in a poverty-stricken condition. They have not any land. I am not 64969—15 ^11 162 ENEOLLMENT IN THE FIVE OIVILIZEI) TKIBES.- charging Congress with that, nor this honorable committee, because they do not have it, but I iJo believe the whole Government is to blame for it. Sojne of the chief men are a little better off than the others ; some of them have a little land, and in the last five years five {)atents have been issued to Indians, but the Indians are not on the and. I know perhaps about five in my county that lay claim to 40, or 80, or maybe 160 acres of land, but to my personal knowledge I know every one of them have about three mortages on them. His ownership of stock is very limited. He is an unskilled laborer, and his chief occupation heretofore has been to split rails, clear land, hoe cotton, and plow, and his condition for the last four years has been pitiful for this reason. We white people in central Missis- sippi — in northwest and northeast Mississippi it has not been so bad — but ever since the Civil War we have drifted into the cultiva- tion of one thing — cotton. I may be digressing from the issue, gentlemen, but I merely want to give you the condition of the Choctaws. We have drifted into one industry to the neglect of nearly everything else, and that is the production of cotton. I hate to mention the boll weevil or to put it in evidence here, because I have heard so much of it that it makes me sick. Four or five years ago it came into my State and has knocked out the industry in central Mississippi, where most of these people are, and I believe it is knocked out to stay, for the reason that there is a great deal of underbrush in that country where they can hide, and you can not have the general cleaning up and burning that the Department of Agriculture recommends, where they have over- come it in Texas, for instance. They have been in Texas for 22 years, and last year Texas made the greatest cotton crop in her history. I feel that these Indians are wards of the Government. That is the way I look at it. Mr. Mills, who has been referred to here, stopped at my hotel and notified me about these people, and I sent him to the best ones, to the most intelligent ones. Most of them can not read and write, but I sent him to Pat Chitto, Allen WiUis, Scott York, and two or three others, the most intelligent ones around there. Mr. Mills took a stenographer and went out there and interviewed them, so he told me. Now, then, their work has been taken away by reason of the boll weevil getting in and cutting out the cotton crop, so they have been left with nothing to do. The industry in my State is changing from cotton to stock and is making pretty good progress, but it usually takes two or three years to get started. We have indeed an excellent place for it. Mr. Carter. Don't you raise any cotton in Mississippi now ? Mr. Sullivan. Yes ; in the Delta and in the northeast part of the State, perhaps nearly as much as they ever did, but not in the central part, the woodland part of the State, where these people are. Mr. Carter. About how many Indians are there in the State of Mississippi ? ' » Mr. Sullivan. Ten or twelve hundred. I have traveled over the State and visited every Indian community in the State in the past year. Mr. Carter. What is your business, Mr. Sullivan ? Mr. StTLLivAN. I am a lawyer. ENROLLMENT IN THE FIVE CIVILIZED TRIBES. 163 Mr. Carter. You said something about running a hotel. Mr. Sullivan. I meant the hotel where I boarded. I live in a little inland town of about 1,000 or 1,200 inhabitants. - Mr. Carter. You say these Indians have no school facilities what* over ? Mr. Sullivan. No, sir. -Mr. Carter. And is there no provision whatever made for them to attend school? Mr. Sullivan. Let me answer that in this way. I want to give you facts, and facts only. There was a young white man who taught two schools west of the town for three months some time ago. He was paid by the State for his services. He was not exam* ined and they did not require him to be examined. Mr. Cartiir. I mean there is no regular provision for them? Mr. Sullivan. None at all. Mr. Carter. And they will not allow them to go to the white schools ? Mr. Sullivan. No, sir. Mr. Carter. Would they allow them to go to the colored schools ? Mr. Sullivan. I suppose they would. Mr. Carter. They will not allow them to ride in the white coaches ? Mr. Sullivan. So, sir. Mr. Carter. Atc they allowed to vote? Mr. Sullivan. By the law they are, but there are, perhaps, not 25 in the State that could vote. Let me give you a little of the franchise requirements. They were years ago, I believe, declared to be citizens, and for a long time they were exempt from taxation, but now they are taxed. Mr. Carter. They are taxed, but not allowed to vote? Mr. Sullivan. Yes; I think they would be allowed to vote, but here is the franchise requirement. They must have paid all taxes required of them two years preceding any election, and that on or before the first day of February of the year in which they propose to vote. Mr. Carter. Is that same requirement made of the white man ? Mr. Sltllivan. It includes everybody— negroes, whites, and In- dians. I have never yet seen an Indian who could qualify to vote. Mr. Carter. What is the reason for that? Mr. Sullivan. When you ask me what the reason is, I do hot know, but I will say that I believe it is lack of education. They are depressed. There is no question about thai. They are downtrod* den, and when you get their confidence and talk with them and ask them about these things they say, '' Well, the white man does it." Mr. Carter. What makes them depressed and down trodden ? Mr. Sullivan. They haven't anything; they do not get anything, and I want to say to you they are the prey of every other race or people in my State. Mr. Carter. What is the cause of that ? Mr. Sullivan. I could not tell you, unless it is they think they can beat the Indian out of what he has. They are not a quarrel- some people ; they are quiet and law-abiding. Mr. Cari-er. So the State of Mississippi does not do anything for them, yet it taxes them. 164 ENROLLMENT IN THE FIVE CIVILIZBD TRIBES. Mr. Sullivan. Yes, sir. Mr. Cakter. What is the religion of these Indians ? Mr. Sullivan. Well, their religion is whatever is the religion of the community in which they live. If they are in a Baptist com- munity, they are Baptists; if they are in a Methodist community, they are Methodists. Mr. Carter. Their religion is divided, then? Mr. Sullivan. Yes. Mr. Carter. These Indians originally owned the entire State of Mississippi, did they not? Mr. Sullivan. I think they did. Mr. Carter. Who owns that land now? Mr. Sullivan. White and colored people. Mr. Carter. So your statement is that the Mississippi Choc- taws by the connivance -of the Federal Government have been robbed by the people of Mississippi of all the land they once owned, and that now the people of Mississippi not only refuse to give them school privileges, but tax them, and while the law does not do it specifically they practically prevent them from exercising the right of franchise. Mr. Sullivan. Yes, sir. Yet that is his home and has been since iiie memory of man runneth not to the contrary. Mr. Carter. Has anybody outside of Mississippi profited by the misfortune of these Indians in Mississippi? Mr. Sullivan. Nobody that I know of. Mr. Carter. The people of Mississippi are the only beneficiaries ©f all the wrong that the' Government has done the Choctaws of Mississippi, are they not? Mr. Sullivan. Well, I do not know about that. So far as I know — I do not know about that. Mr. Carter. Well, there are no persons but the citizens of Mis- sissippi that own this land ? Mr. Sullivan. I think so. Mr. Carter. And the people who live in Mississippi now are the beneficiaries of the wrongs that have been done him ? Mr. Sullivan. In getting the land from him, I think they are. Mr. Carter. That is the only wrong that has been done them practically. The wrong that has been done them is that they refuse to educate them, they have refused to give them the education priv- ileges accorded to other people ; they have robbed them of their land and taxed them and then denied them the right to vote. Now, no- body on earth had anything to do with that but the people of Mis- sissippi. Mr. Sullivan. I think the United States had a good deal to do with it. Mr. Carter. But the beneficiaries are the people of Mississippi. Mr. Richardson. I would like to call attention to the fact that the record shows that the Government offered the Choctaw Nation land west of the Mississippi in lieu of their land in Mississippi. The treaty itself is an agreement, giving them the country west of the Mississippi in lieu of this same land in Mississippi. Mr. Carter. Did not that same treaty provide for those people to retain certain lands in Mississippi, which on account of the negli- gence of the Government agents, they never had? Do the records not show that that negligence was partially due to influences brought ENKOLLMENT IN THE FIVE CIVILIZED TRIBES. 165 to bear hj the inspector or agent of the Government who was in Mississippi at that time, because the white man in Mississippi wanted the Indian's land ? Mr. KicHARDSON. I think possibly that question might refer to the Federal treaty of 1820 and 1830. The land in Oklahoma was traded to the Choctaw Nation in 1820, in lieu of land they ceded in Mis- sissippi. As a result of that trade they owned land west of the Mis- sissippi, and they also retained a part of their land in Mississippi. Mr. Carter. The only people that had any interest in the land in Mississippi were the people that remained there. Mr. KicHARDSON. No ; under the treaty of 1830 the whole Choctaw Nation owned that land. Mr. Carter. But that was done after the people who remained in Mississippi did not elect to move, was it not ? Mr. Richardson. The requirement to move did not follow the treaty of 1820. Mr. Carter. I am speaking of the treaty of 1830 now. It is claimed that the object of that provision in the treaty of 1830, to allow them to retain the land which they then possessed, was to get the treaty approved, because some of these Indians did not want to move from Mississippi, and would not vote for the treaty if they were required to move or give up their lands in Mississippi. Mr. Eichakdson. That is true. Mr. Carter. So that the object of the fourteenth article of the treatv of 1830 was to permit those fellows to have land and remain in Mississippi. Now, the point of Mr. Sullivan's statement is that not only was that purpose of the article destroyed, so that the In- dian was permitted to be robbed of his land by the connivance of his neighbors, who were the beneficiaries, but now those same bene- ficiaries refuse to permit the Indian to enter their schools; they refuse to allow him to ride with them in their passenger coaches ; they refuse to allow him any of the privileges of citizenship which are guaranteed to him under the Constitution. Mr. Ballinger. And while all that has been going on, the guardian of these helpless wards, the United States, has stood by and allowed it to be done. Mr. Carter. That is no excuse. Mr. Balltnger. It has been through the treaties negotiated by the guardian of the Indians that they lost their lands ; so it is our con- tention that the responsibility is upon the administrator of these benefits. Mr. Carter. Well, there may be something to your contention, of course, but the thing I am trying to get at is who has been the bene- ficiary of this robbery. Mr. Ballinger. The white people haA'-e been the beneficiaries, as they have always been. Mr. Carter: And the white men in one particular State, rather than other citizens. They perhaps had to be citizens to be bene- ficiaries ? Mr. Ballinger. That is not particularly local to Mississippi. It has prevailed wherever the Indian has been. The white man has robbed him whenever he had the chance. Mr. Hurley. Mr. Ballinger and Mr. Sullivan and Mr. Aswell seem to be of one opinion, that the Mississippi Choctaws are wards 3.66 ENEOLLMENT IN THE FIVE CIVILIZED TEIBES. of the United States Government. They became citizens of the State of Mississippi in 1830 and have not been under the supervision of the United States Government since that time. And I would like to know what legal guardianship these gentlemen claim the United States has had over those people since that date. Mr. BALLTNGEn. My friend is too good a lawyer, or ought to be, to ask such a question. The Supreme Court of the United States in the Marchie Tiger case held that there was nothing incompatible with State and national citizenship and guardianship by the United States. Mr. HuELET. But in the Marchie Tiger case the Creek Indian whose land was involved was given citizenship in Oklahoma with a restricted allotment of land. There was no such provision under which the Mississippi Choctaws were given citizenship. The Mis- sissippi Choctaws were given unqualified, unrestricted citizenship in the State of Mississippi, and the holding in the Marchie Tiger case is not applicable to them at all. Mr. Bali.inger. The only difference between the Indian in Okla- homa, who was an enrolled member of the tribes over there, and thereby what is technically termed a citizen of the tribe, and these Indians in Mississippi is a mere technical difference; a difference arising simply out of the qxiestion of enrollment and recognition by the Indians in Oklahoma. Mr. Htjrlet. I believe you are absolutely incorrect in your state- ment of what the law is and what the Supreme Court held in the Marchie Tiger case, but answer this question : If the Indian has no real property over which the United States has supervision, and is a citizen of the United States and does not live on an Indian reserva- tion, what restrictions are upon him? Mr. Ballinger. Prior to the time that the Government assumed control of the property in Oklahoma in 1896, no one questioned the rights of these Mississippi Choctaws to participate in the division of the property. Mr. HuRLET. That is not the question. You said the Mississippi Choctaws were restricted Indians, wards of the Government. Mr. Ballinger. Just one moment. Up to that time no one ever questioned the right of the Mississippi Choctaw to remove to and participate in the usufruct of this land, 'vphich was then held in common for the benefit of all. Now, the Government through its agencies and instrumentalities divided that estate and placed in individual ownership certain portions of it. It still continued its control over the land, both that allotted and that remaining in com- mon. In doing that it neglected its duty as the guardian of these people in Mississippi, in not seeing to it that their rights were protected. Mr. Carter. You made one statement there which I want to get <;learly. I want to get a statement from all you gentlemen on that. You state that never was a Mississippi Choctaw denied the rights of citizenship and enrollment in the Choctaw Nation prior to the time the Dawes Commission went there. This is the question I want to ask. Was it not always necessary before he was allowed these rights for him to be admitted by the council, or some duly authorized tribunal of the tribe? ENROLLMENT IN THE FIVE CIVILIZED TEIBBS. 167 Mr. Ballingee. No, Mr. Carter; when I come before the com- mittee I am going to make that plain. In order to be enrolled or admitted by the Choctaw Council it was necessary for the applicant to remove to the nation and apply to the council and pay $100 per he^wi to the council as the costs incident to their action. In rtiany instances the full-blood Indian, being practically a pauper, was unable to make that payment, and when these persons applied to the council for regular admission to the tribe they were denied, because they had not made the requested payment. Mr. Carter. When you say that, .you answer my question. _Mr. Ballinger. Although they were not actually enrolled by the tribe, they were permitted — with the assent of the tribe — ^to go into the possession of land, employ tenants, and receive permits from the tribe. Mr. Carter. Now, you are getting too far away from the question. Mr. Ballinger. And exercise all the rights of any other citizen of the tribe. Mr. Carter. I do not know to what extent that was done by Mississippi Choctaws; in fact, I never heard of one of them doing it, but I know that was done by every man who claimed the right to citizenship in either the Choctaw or Chickasaw Nations. I never knew a time when the Choctaw or Chickasaiw Nations were ever able to have ejected from their country any man who might claim citizen- ship, no matter how nebulous his claim might be. Those are the facts in the case, and at that time you remember you were in Washington and I was there on the ground. Mr. Ballinger. Mr. Carter, the records are full of cases in which persons claiming as citizens were ejected from the tribe. Mr. Carter. How many? Mr. Ballinger. Let me give you an illustration. Without de- siring to be personal, I think the records will disclose that Gov. Johnson's father and his family at one time were ejected from the Choctaw Tribe. Mr. Carter. I never heard of it. Perhaps I should qualify my remarks by confining them to 10 or 15 years prior to the time the Dawes Commission came, for that is as far back as I would care to trust my memory. I know that for 10 or 15 years before the Dawes Commission came there the country was full of people claiming citi- zenship ; each one of them employed his laborers, and if one of them was ever removed, so far as the Chickasaw Nation was concerned, I never heard of it. I know that because my father was permit collector. As auch he was required to collect a permit tax of $5 from every non- citizen farmer. Before another could procure a permit he must be a day laborer ; he must have some kind of avocation other than farmer, and if he was a farmer, he must have his holding under some enrolled citizen. Now, there .were in the Chickasaw Nation then, I should say, 20,000 people who should have paid permit tax, and probably my father was able to collect from 2,000 to 3,000 per annum, because 75 to 80 per cent of these fellows were squatters under some man who claimed citizenship. My father was unable to issue them a permit, although they would come in with the money, some of them with as much as $200, and say, " Ben, I want to pay my permit tax." And he would say, " Well, I would like to take the money, because I get 10 168 ENROLLMENT IN THE FIVE CIVILIZED TRIBES. per cent of it, but under the law I can't do it unless you register under some citizen." Mr. Ballinger. In 1889 the Choctaw Council passed an act and had its committee exclude six persons who were not entitled to citizenship. Mr. Carter. That does not amount to anything. Those acts were passed by every council, and were just as totally ignored as we are ignoring the rules of evidence here. Mr. Ballinger. No, Mr. Carter, there is no man who has a higher and greater respect for another man than I have for your father. Your father was a distinguished judge, and one of the fairest and most honorable that ever sat in all that entire section of the country. Yet, Mr. Carter, a large number of people were admitted by judicial decrees of your father while judge of the courts of the Chickasaw Nation. Mr. Carter. One single family. Mr. Ballinger. No ; several families. Mr. Carter. Well, I am as familiar with that as anybody living, and there was one family only, I say. Mr. Ballinger. I can give you a list of them right here. Mr. Carter. I do not care anything about any list made up by you. When vou talk about judicial decrees, I want to see the decrees. Mr. Ballinger. I can get the decree. Mr. Carter. When you present them I may be convinced. Mr. Ballinger. Further than that, they have been a matter of public record for several years, and are foimd in that document [indicating]. Mr. Carter. I don't know what that document is, but have you the decrees? Mr. Ballinger. I have copies of the decrees signed by your father as judge. Mr. Carter. My father only took up citizenship cases, as I re- member, at one term of court, and I remember every case that was tried, because I was at that time his secretary. Mr. Ballinger. Well, Mr. Carter, when I have found cases ad- mitted by your father I have banked on the regularity of those cases, because of his reputation as a judge. Mr. Carter. Well, you and I can not settle this question by argu- ing about it, and I want you to produce the decree of his court, which you say my father issued, admitting these many cases to citizenship ; I want to look at the law authorizing him to do it, and I want to see whether it was a decree of his court or whether it was some matter he was authorized to investigate and report back to the proper tribunal for final decision. Mr. Ballinger. The decisions I speak of were regularly entered and became final. Mr. Carter. Well, why don't you produce these decrees? You can't convince me by mere reiteration and disputation, because I was on the ground and knew. (Note by Chairman. During the three months which elapsed be- tween the date of this colloquy and date of going to print none of the decisions or citations were furnished the subcommittee by Mr. Ballinger.) ENBOLLMENT IN THE FIVE CIVILIZED TKIBES. 169 Do you want to continue now, Mr. Sullivan, or wait until our next meeting? We will have to adjourn in a few minutes. Mr. Sullivan. I prefer to finish at another hearing, Mr. Chair- man. I would rather take 15 minutes at another time. Mr. Cabter. Very well, we will adjourn, then, to meet Thursday morning next, at 10 o'clock. Stjbcommittee of Committee on Indian Affairs, . House of Representatives, Thursday, June ^, 19H. The subcommittee this day met, Hon. Charles D. Carter (chair- man) presiding. The Chairman. Mr. Sullivan, you may proceed this morning, if you are ready. STATEMENT OP MR. T. B. SUILIVAN, PRACTICING ATTORNEY, CARTHAGE, MISS.— Continued. Mr. Sullivan. Mr. Chairman and gentlemen of the committee, I wish to refer back to the statement of the other day by saying that I taught school in the district 14 years and occasionally in the com- munity where these people live. I have reference only to the full- blood Choctaws. They never appeared, and had they appeared it would have broken up the school. We have no mixed schools of any sort and no mixed passenger trains in Mississippi except as to the Choctaws and darkies, who are forced to ride together in the same coach. I want to refer to one other matter. I spoke of the pest in the dis- trict of the central part of Mississippi. I hate to talk about it. The record of my county, being 24 miles square, as you will find by the statistics, was from 12,000 to 15,000 bales of cotton. In 1912 it was t,000 bales; in 1913 — I have not seen the record, but I understand that it is between 4,000 and 5,000 bales. I want to mention one other thing, and I merely speak of this as a matter of illustrating the con- dition, that within a radius of 35 or 40 miles of my little town the Mississippi State Bank, an old, reliable institution, chargeable only to that condition, failed; the C. C. Kelly Banking Co. went under; the bank at Newton, 45 miles southeast of my town, went under, and so on. So I leave it for the imagination how it affected these people. Previous to this they came to me occasionally. One was indicted by the court. They came to my office and would call on me to defend them, which I did. I want to speak of one case, that of Lum Billie and Will Billie, who were indicted for the murder of a Choctaw girl. There were four attorneys prosecuting them. I defended. We were eight days in the trial. They were remanded to jail without bail. I prepared a petition of habeas corpus and brought them before the court, and after a short investigation they were remanded to jail without bail. The circuit court convened and the parties were in- dicted. After two and one-half days' effort on the part of the State, with all the testimony they could scrape, I defending, they decided that they had failed to make a case, and I asked the court for a per- emptory instruction, and they were discharged. 170 ENEOLLMENT IN THE FIVE CIVILIZED TEIBES. In 1912 a half-witted darkey had some trouble with a Choctaw who was 75 years old. He appeared at his gate one morning and raised a row and struck him with a stick. The old Indian shot him and killed him dead at his own gate. He was apprehended, indicted, and charged with murder. I conducted his case, and he was acquitted by a jury in the circuit court. These are some of the items of service which I have rendered for them, just fair, average service, for which they have not been able to pay me a cent, and for which I have not received anything. The records of these matters are all in the court. Mr. Post. Under the laws of Mississippi, in defending a criminal case of an indigent, does not the court appoint a counsel ? Mr. Sullivan. It has been the case many times. I have never been appointed to defend a Choctaw yet. I have been appointed to defend five or six colored men. I have spent as much as two or three days in the circuit court. I have defended two white people. Mr. Post. The Indians whom you defended, you voluntarily took their employment? Mr. Sullivan. They came to me and said they would pay me when they could. Mr. Post. On what ground do you think the United States shoidd reimburse you? Mr. Sullivan. That raises the question that I yielded to the chair- man, reluctantly, I think. I think there is a difference. They are natives and they are aborigines. I think the name " Indian " is a misnomer. That is what I would like to constitute my definition of a citizen. I do not think, as a matter of law, that I can state, with my limited information of the law, that, legally speaking, they are not citizens of the United States. Mr. Carter. Under the treaty of 1830 were not those Indians who remained in Mississippi accorded the rights of citizens of the State of Mississippi ? Mr. Sullivan. I will answer your question if I can. Those who desired to remain east of the Mississippi and become citizens of the State, Mississippi then being the western boundary of the United States, could do so by signifying their intention to the agent to do so within six months after the ratification of this treaty. I say they never had an opportunity to do so. The records show that the agent did not get his commission until four months of the six months had expired, and, on the other hand, they were not any more familiar with the record made about that appearance and signifying the intention than I am. I know of only one case in the State of Mississippi where that was done. Mr. Carter. The intention that they were to* signify in this lim- ited time did not refer to citizenship ; it simply referred to the inten- tion to take lands in Mississippi under the treaty ? Mr. Sullivan. I was construing the language that those who de- sired to remain east of the Mississippi and desired to become citizens of Mississippi could do so by signifying their intention. Mr. Carter. Let us see. Mr. Sullivan. If you will pardon me, while you look at that, I want to introduce an extract from an opinion delivered by Gen. Crois- der, Judge Advocate General of the Army, on this very question of Indian citizenship. This extract from the opinion came from the Star of this city yesterday. ENEOLLMENT IN THE FIVE CIVILIZED TEIBES. 171 Mr. Caeter. What date is that? Mr. StjllivanI The date of the opinion I can not give. Mr. Carter. What is the date of the clipping? Mr. Sullivan. Yesterday, June. 3. This is an extract from the opinion of Judge Advocate Crowder : Gen. Crowfler, Judge Advocate General of the Army, has rendered an opinion that Indians, born in the United States, members of and owing allegiance to a tribe recognized by the Federal Government, are not citizens by birth within the meaning of the Constitution and can become citizens only by being natu- ralized under some treaty or statute. He held, also, that such Indians are not citizens within the meaning of section 1 of the militia act of January 21, 1903, as amended by the act of May 27, 1908. That section provides that the " militia shall consist of every able-bodied male citizen of the respective States and Territories and the District of Columbia, and every able-bodied male of foreign birth who has declared his intention to become a citizen, who is more than 18 and less than 45 years of age." The opinion was rendered in reply to a question as to whether certain Indians enrolled at the tJnited States Indian school at Phoenix, Ariz., were citizens within the meaning of the militia act referred to. Mr. Carter. Is it your contention that the Mississippi Choctaws owe allegiance to the government of the Choctaw Tribes in Okla- homa? Mr. Sullivan. That the Indians are members of tribes, and are not citizens, legally speaking, of the United States. Mr. Carter. That speaks of owing allegiance. They can not owe allegiance to a tribe in Oklahoma and live in Mississippi. Mr. Hurley. The Jack Amos decision covers that point very fully, and is as follows : In the third article of the treaty the Choctaws agreed to move all of their people within three years, and the United States intended that they should go. But by the fourteenth article of the treaty provisions were made whereby those who should decide to remain and become citizens of the State of Missis- sippi, in the event that, because of the intolerance and persecutions of the whites which they themselves had so bitterly experienced, or for any other cause, they might' become dissatisfied with their altered conditions and their new citizenship and desire to follow them to their new homes, and thereafter exercise with them in their own country the privileges of citizenship, they could do so, except that they were not to participate with them in their annui- ties, the lands which they were to receive in Mississippi being deemed a com- pensation for that. When the fourteenth article of the treaty was framed the negotiating parties understood that the policy of the United States was that the Choctaws were to be removed. The Choctaws, in article 3, had just agreed that they should all go. The ink was not yet dry in article 2, whereby the condition was placed In this grant to the lands that they were to live upon them or they should be forfeited, and that no privilege of citizenship could be conferred or enjoyed outside of the territorial jurisdiction of their newly located nation. Under- standing these conditions, the latter clause of article 14 was penned: "Persons who claim under this article shall. not lose the privilege of a Choc- taw citizen, but if they ever remove— that is, if they ever place themselves on the laud and within the jurisdiction of the nation whereby those privileges may become operative — are not to be entitled to any portion of the Choctaw annuity." In other words, If they ever remove, they are to enjoy all of the privileges of a Choctaw citizen except that of participating in their annuities. If this be not the meaning to be attached to the word " remove " as used m the clause of the treaty under consideration, it must be meaningless. But in the inter- pretation of statutes it is the duty of the court to so interpret them as to give to every word a meaning, and In doing so it must take into consideration the whole statute, its objects and purposes, the rights which are Intended to be enforced and the evils intended to be remedied; it may go to the history of the transaction about which the legislation is had and call to its aid all legiti- mate facts proven or of which the courts will take judicial notice In order 172 ENROLLMENT IN THE FIVE CIVILIZED TEIBES. to find the true meaning of the word as used in the statute. Of course, the same rule of interpretation applies to treaties. Adopting these rules in the inter- pretation of article 14 of the treaty of 1830, I arrive at the conclusion that the "privilege of a Choctaw citizen " therein reserved to those Choctaws who shall remain, thereby separating themselves, it may be forever, from their brethren and their nation, becoming citizens of another sovereignty and aliens of their own, situated so that it would be impossible, while in Mississippi, to receive or en.1dy any of the rights of Choctaw citizenship, was the right to renounce his allegiance to the Commonwealth of Mississippi, move upon the lands conveyed to him and his people, and there, the only spot on earth where he could do so, renew his relations with his people and enjoy all of the privileges of a Choctaw citizen except to participate in the annuities. As an evidence that the Choctaw people themselves took this view of the question, attention is called to the fact that their council has passed many acts and resolutions inviting these absent Choctaws to move Into their country, and on one occasion appropriated a considerable sum of money to assist them on their .iourney ; 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. Mr. Bond. Is it not a fact that the Indians you now represent in Mississippi were born without the tribe and have no tribal relation and owe their allegiance to the State of Mississippi, and is it not a fact that yonr statement this morning shows that they are amenable to -the laws of Mississippi? Mr. SuLLrvAN. As to what " tribe " means in the full sense of the word, I do not know ; I can not answer. Mr. Carter. That has been clearly defined bv the Supreme Court. Mr. Sn.LTVAN. I know that they are amenable to the laws of the State of Mississippi. I have appeared in the courts and defended them. Mr. Bond. Have you examined the case of the Eastern Cherokees against the Cherokee Nation and the United States, reported in 117 United States? Mr. Sctxtvan." I do not remember having seen it. Mr. Carter. I will say for the record that in the case of the Cherokee Nation v. Georgia, Justice Marshall clearly defines In- dians and Indian tribes as being domestic dependent aliens. Mr. Stu^livan. I would have l3een glad to have seen that. Mr. Ballinger. That was in a criminal case. Mr. Carter. I do not remember the nature of the case, but I re- member that decision. Mr. Hurley. This is the case of the Eastern Band of Cherokees against the United States, 117 United States, 288 : If Indians in that State (North Carolina), or in any other State east of the Mississippi wish to enjoy the benefits of the common property of the Cherokee Nation, in whatever form it may exist, tliey must, as held by the Court of Claims, comply with the constitution and laws of the Cherokee Nation, and be readmitted to citizenship as there provided. They can not live out of its territory, evade the obligations and burdens of citizenship, and at the same time enjoy the benefits of the funds and common property of the nation. Those funds and that property were dedicated by the constitution of the Cherokees and were Intended by the treaties with the United States for the benefit of the united nation, and not in any respect for those who had separated from It and become aliens to their nation. We can see no just ground on which the claim of the petitioners can rest in either of the funds held by the United States in trust for the Cherokee Nation. Mr. Carter. What page are you reading from? Mr. Hurley. Page 11 of our brief. ENKOLLMENT IN THE FIVE CIVILIZED TEIBES. 173 Mr. Ballingee. That case arose under a jurisdictional act pe- culiar to the Cherokees. Mr. Sullivan. Going back to the question which the gentleman asked, I am inclined to think that had thej not been treated in this waj^ hj the agent or by the fact that he failed to get his commission until four months of the six months had expired within which to signify their intention there could not have been any question about it. I wish to say that there may be others, but I know of only one case in the State. Do not understand that I know all of them, but I am positively familiar with one case — ^that of Smedes and Mar- shall, volume 4, page 44, Supreme Court Eeports of Mississippi. They began in 1840— -10 years after the treaty — to shove the Choc- taws off the reservation. One of the chief men was reserved under the treaty and a white man got him off, and through some of his white friends he brought an ejectment suit in the circuit court of my county in 1840 — some 25 years before I was born. He went before a jury and proved that 'he signified his intention to the agent and made proof satisfactory to the court and jury. The white man appealed the case to the Supreme Court, and they rendered a unani- mous opinion in favor of the Choctaw. 'Why it was I do not know, but the Attorney General of the United States concurred. They seemed to agree. That is the only case that I know of. Of course there might be others. I found this in the routine work of the law in my State as to the condition. That is all I care to touch upon, because I feel that the legal phases of the question and the treaty and other matters have been so fully dealt with by Mr. Richardson. Mr. Carter. As a matter of history more than for the record, these Mississippi Choctaws, when the treaty of 1830 was made, had pos- session of certain lands, did they not ? Mr. Sullivan. I will answer the best I can. I understand only a part of them. There was reserved by the treaty to the chief Mr. Carter (interposing). I am not speaking of the treaty, but I am speaking of the physical fact of their having possession of lands. They must have had homes. They were at that time living in houses? Mr. Sullivan. The most of them did not. I know this since my childhood, my boyhood in the little village that I speak of, 8 miles west of our little town, while there was public land — there was a good deal of it — they squatted all over it. Mr. Carter. It would have been impossible for Indians to have lived in the country without having possession of lands ; some must have had lands ? Mr. Sullivan. I think they did. Mr. Carter. The very fact that they had foresight enough to have placed in the treaty a proposition reserving to them the right to allot 640 acres of land shows that they were not totally ignorant even at that time of the value of land. They must have had pos- session of land, and it took some process to dispossess them. What I am trying to ascertain is how they were dispossessed of the land they had, and I thought perhaps that you might throw some light on that subject. Mr. Sullivan. I would be glad to, but, perhaps, I am not even as familiar with that as you are. As far as I know, evidently they had the land at the time of this treaty. 174 ENROLLMENT IN THE FIVE CIVILIZED TRIBES. And in that treaty, I understand, they surrendered it for the ter- ritory west with a proviso that those who desired to remain east of the Mississippi and become citizens of the State could do so by signifying their intention, and the chief warriors, headmen, and captains, had reserved for themselves and their families so much land. I can not quote that proviso and it is not necessary, because you know it, I am sure. I thinlc at that period they left the rest of them entirely without land in that State and I know they are en- tirely without land. There are, perhaps, five or six who claim the land. Why that is, or the cause, I am not here to say. Mr. Carter. I notice this language in the treaty: If tbey reside upon said lands, intending to become citizens of the States, for five years after tlie ratification of this treaty, in that case a grant in fee simple shall issue. Why did they not reside on that land for five years? They evi- dently had knowledge of the value of the land or this provision would not have been put in the treaty. It must have been placed there at the instance of some of their head men. Mr. Sullivan. I can help you a little. To my certain knowledge, in the same village that I spoke of there was row after row 15 years ago — that is, about the public land — ^between these Choctaws and the colored people, also with the white people out there, and occasionally between the white nien and the Choctaws. Generally he will say a little and go away or he will fight you right on the spot if you get him mad enough. Only in a few instances do I know in that country where they have won out and succeeded in getting their places. I know there were very few of them to whom patents were ever issued because of lack of proper information, staying on the land, and making the application. I have applied for about four in the last four years and have secured patent to 657 acres, about 8 miles southwest of my little town, magnificent land, but I want to show you the shape. That patent was issued to the heirs of Benjamin Laflore, whose residence was 8 miles from my town. The land was sold by his heirs 15 years ago at $1.50 an acre to what is now know as the Mississippi Land Co., located at Win- chester, Ky. Mr. Carter. Benjamin Laflore did receive land, did he? Mr. Sullivan. He lived on it. Mr. Carter. And his heirs sold it for $1.50 an acre? Mr. Sullivan. Yes, sir. Laflore himself is dead. Mr. Carter. Who are his heirs? Mr. Sullivan. His grandchildren. The most of them are white people. Mr. Carter. Will not they be claimants? Mr. Sullivan. Not that I loiow of. Mr. Carter. T understand that the Laflores in Mississippi are some of the persons who have been pushing this matter? Mr. Sullivan. One man, Presley Groves, a State senator from our State, has been pushing the matter. They are nearly all white people — one-fourth, one-eighth, one-sixteenth, and so on. Mr. Carter. What is their financial condition? Mr. Sullivan. It is poor; very bad. Mr. Carter. Are they educated and able to cope with the white man? ENROLLMENT IN THE FIVE CIVILIZED TRIBES. 175 Mr. Sullivan. Yes, sir. They are pretty well educated. They as- sociate with the white pepple and intermarry. Mr. Cartee. They do not treat them as full bloods? Mr. Sullivan. No, sir. Mr. Carter. Their financial condition is poor? Mr. Sullivan. Yes, sir. I have never made much effort for the mixed bloods, and as a matter of justice it did not appeal to me as it did for the full bloods. Mr. Carter. How did this man Laflore get the title to this land? Mr. Sullivan. It was reserved to him under the treaty; He is named in the treaty. The patent was never issued until three years ago. I think I have the patent now in my possession, issued to his grandchildren. Mr. Carter. Was this land given to him under the provisions of the fourteenth article of the treaty, or was it a special reservation ? Mr. Sullivan. As to that question, I can not answer truthfully; I do not know. I think it came under the fourteenth article. Mr. Carter. If other Choctaws had taken the same precaution that this man Laflore did, would they not themselves have been in possession of a part of this land now ? Mr. Sullivan. I think not. Mr. Carter. How was it that he could do it and the others could not? Mr. Sullivan. I will give you my idea. I think that under that treaty there was reserved to the chief warriors, headmen, and cap- tains of the Choctaw Tribe certain reservations. It was not general to the whole people ; it was only to the chief warriors, headmen, and captains. Mr. Carter. But in your former statement your opinion was that he received this land under the fourteenth article. There is no res- ervation in the fourteenth article for chief warriors. Mr. Sullivan. Then I am mistaken. Mr. HuRLET. I think he is speaking of the nineteenth article. Mr. Sullivan. I think you are correct. I do not remember which article it is. Under that article, whichever one it is, Laflore got his ground. Mr. Carter. I think I am familiar with what you are stating. I want to read this provision of the treaty : If they reside upon said lands, intending to become citizens of the States, for five years after the ratification of this treaty, in that case a grant in fee simple shall issue. Then it goes on to say: Said reservation shall include the present Improvement of the head of the family. If a Mississippi Choctaw had resided upon the land which he had possession of for five years, would he not have been entitled to his patent? ■ i i • Mr. Sullivan. I think so. I think there is no doubt about it. Mr. Carter. But he did not reside there? Mr. Sullivan. Many of them resided there 25 years and still never applied for a patent. Mr. Carter. They just did not apply? ,, „ . ,^- Mr. Sullivan. That is the case of Laflore himself. He got his patent less than three years ago. • 176 ENEOLLMENT IN THE FIVE CIVILIZED TRIBES. Mr. Carter. So long as the Indian resided on that land which was a reservation under the fourteenth article, could he be legally dis- possessed of it? Mr. Sullivan. I think not. Mr. Carter. By a homesteader? Mr. Sullivan. No, sir. Mr. Carter. If he had remained on the land or if his heirs had remained upon it, he could at any time since the treaty of 1830 have applied for and obtained a patent? Mr. Sullivan. I think so. That is what I think. There is one thing that I want to be clear about and concerning which I do not want to make any misstatement, and that is the article which makes the reservation. As I understand, under the treaty they gave that land for the territory west of the river ; that is, those who desired to remain east. Mr. Carter. Can you cite me to that portion of the treaty ? Mr. Ballinger. If you will permit me. Mr. Carter. Your suggestion is this: That the lands ceded in Mississippi were given in lieu of the lands which they received west of the Mississippi. Mr. Su-LLivAN. I do not think there is anything of that sort. Mr. Carter. Is there any evidence to that effect ? Mr. Sullivan. Nothing more than the transaction itself; the very fact that they surrendered the land by treaty to take that up over there. Mr. Hurley. The only section of the treaty of 1830 that is any- thing similar to what Mr. Sullivan contends is the nineteenth article. Mr. Carter. That is also provided in the fourteenth article, where it says : Snid reservation shall include the present improvement of the head of the family, Or a portion of it. It was evidently the intention that the Mississippi Choctaw should be allotted land where he lived, if he so desired, or he should be allotted land whether he desired it or not. Do you not think that was the intention? Mr. Sullivan. I do. Mr. Carter. Is that your construction, Mr. Ballinger? Mr. Ballinger. There are several different provisions under which they got land. Mr. Carter. Does not the provision I have just read, fairly con- strued, mean that the Mississippi Choctaw should take his allotment on the land which he then occupied and had improved? Mr. Ballinger. There is not any question about that ; any person who took under that article. If you will permit me, provision is made by the nineteenth article for certain grants to certain classes of individuals, and by the supplementary articles to the treaty it is provided : As evidence of the liberal and kind feelings of the President .ind Govern- ment of the United States the commissioners agree to the request as follows, to wit — I leave out the names of the other parties, Louis Laflore and others mentioned — shall be entitled to a reservation of two sections of land each, to include their Improvement where they at present reside, with the exception of the three ENBOLLMENT IIT THE FIVE CIVILIZED TEIBES. 177 flrst-named persons and Benjamin Laflore, who are av.thorized to locate one of their sections on any other unimproved and unoccupied land within their re- spective districts. Mr. Carter. That defines very clearly what I wanted to bring out. Mr. Sullivan. I have it in my mind that this reservation applied only to certain people and not to all the Choctaws who remained East, and therefore I contend, as I understand it, that only the chief warriors, head men, and captains of the tribe got those reservations, and those who remained got nothing. That is what I am trying to present. _ Mr. Post. Is it your contention that they were entitled to reserva- tions ? . Mr. Sullivan. I do not know. Mr. Post. The treaty and the supplemental articles make specific grants to certain individuals, but under the fourteenth article there IS a general clause granting to any Indian who desires to remain there the right to a reservation. Mr. HuELEY. In order that we may more clearly understand all the different reservations that were permitted under the treaty of 1830 I will read into the record the sections providing for those reservations : Art. 14. Each Choctaw head of a family being desirous to remain and become a citizen of the States shall be permitted to do so by signifying his intention to the agent within six months from the ratification of this treaty, and he or she shall thereupon be entitled to a reservation of one section of 640 acres of land, to be bounded by sectional lines of survey ; in lilie manner shall be entitled to one-half that quantity for each unmarried child which is living with him over 10 years of age and a quarter section to such child as may be under 10 years of age, to adjoin the location of the parent. If they reside upon said lands, intending to become citizens of the States, for five years after the ratifi- cation of this treaty, in that case a grant in fee simple shall issue; said reserva- tion shall include the present improvement of the head of the family or a portion of it. Persons who claim under this article shall not lose the privilege of a Choctaw citizen, but If they ever remove are not to be entitled to any portion of the Choctaw annuity. (T Stat. L., 335.) Aet. 15. To each of the chiefs in the Choctaw Nation, to wit, Greenwood Laflore, Nutackachie, and Mushulatubbe, there is granted a reservation of four sections of land, two of which shall include and adjoin their present improve- ment and the other two located where they please, but on unoccupied, unim- proved lands; such sections shall be bounded by sectional lines, and, with the consent of the President, they may sell the same. Also to the three principal chiefs and to their successors in office there shall be paid two hundred and fifty dollars annually while they shall continue in their respective offices, except to Mushulatubbe, who, as he has an annuity of one hundred and fifty dollars for life under a former treaty, shall receive only the additional sum of one hundred dollars while he shall continue in office as chief ; and if in addi- tion to this the nation shall think proper to elect an additional principal chief of the whole to superintend and govern upon republican principles, he shall receive annually for his services five hundred dollars, which allowance to the chiefs and their successors in office shall continue for twenty years. At any time when in military service and while in service by authority of the United States the district chiefs, under and by selection of the President, shall be entit'ed to the pay of majors; the other chief under the same circumstances shall have the pay of a lieutenant colonel. The speakers of the three districts shall receive twenty-five dollars a year for four years each, and the three secretaries, one to each of the chiefs, fifty dollars each for four years. Each captain of the nation, the number not to exceed ninety-nme, thirty-three from each district, shall be furnished upon removing to the West with each a good siiit of clothes and a broadsword as an outfit, and for four years, commencing with the first of their removal, shall each receive fifty dollars a year for the double of keepfng their people at order in settling, and whenever they shall 649G9— 15 12 178 ENEOLLMENT IN THE FIVE CIVILIZED TKIBES. be in military service by authority of the United States shall receive the pay of a captain. Art. 19. The following reservations of land are hereby admitted: To CoL David Fnlsom, four sections, of which two shall include his present improve- ment and two may be located elsewhere on unoccupied unimproved land. To I. Garland, Col. Robert Cole, Tiippanahomer, John Pytchlynn, Charles Juzaii, Johokebetubbe,. Eaychahobia, Ofehoma, two sections, each to include their improvements and to be bounded by sectional lines, and the same may be disijosed of and sold with the consent of the President. And that others not provided for may be provided for there shall be reserved as follows: First. One section to each head of a family not exceeding forty in number, who during the present year may have had in actual cultivation, with a dwelling house thereon, fifty acres or more. Secondly, three quarter sections, after the manner aforesaid, to each head of a family, not exceeding four hundred and sixty, as shall have cultivated thirty acres and less than fifty, to be bounded by quarter section lines of survey and to be contiguous and adjoining. Third. One-half section, as aforesaid, to those who shall have cultivated from twenty to thirty acres, the number not to exceed four hundred. Fourth. A quarter section, as aforesaid, to such as shall have cultivated from twelve to twenty acres, the number not to exceed three hundred and fifty, and one-half that quantity to such as shall have cultivated from two to twelve acres, the number also not to exceed three hundred and fifty persons. Each of said class of cases shall be subject to the limitations contained in the first class, and shall be so located as to include that part of the improvement which contains the dwelling house. If a greater number shall be found to be entitled to reser- vations under the several classes of this article than is stipulated for under the limitation prescribed, then and in that case the chiefs, separately or together, shall determine the persons who shall be excluded in the respective districts. Fifth. Any captain, the number not exceeding ninety persons, who, under the provisions of this article shall receive less than a section, he shall be entitled to an additional quantity of half a section adjoining to his other reservation. The several reservations secured under this article may be sold with the con- sent of the President of the U. S., but should any prefer it, or omit to take a reservation for the quantity he may be entitled to, the U. S. will on his re- moving pay fifty cents an acre after reaching their new homes, provided that before the first of January next they shall adduce to the agent or some other authorized person to be appointed proof of his claim and the quantity of it. Sixth. Likewise children of the Choctaw Nation residing in the nation, who have neither father nor mother, a list of which, with satisfactory proof of parentage and orphanage, being filed with agent in six months, to be forwarded to the War Department, shall be entitled to a quarter section of land, to be located under the direction of the President, and with his consent the same may be sold and the proceeds applied to some beneficial pupose for the benefit of said orphans. BUPPLBMENTAEY ABTICLES TO THE PBECEDING TKEATT. Various Choctaw persons have been presented by the chiefs of the nation, with a desire that they might be provided for. Being particularly deserving, an earnestness has been manifested that provision might be made for them. It is therefore by the undersigned commissioners here assented to, with the under- standing that they are to have no interest in the reservations which are directed and provided for under the general treaty to which this is a supplement. As evidence of the liberal and kind feelings of the President and Government of the United States, the commissioners agree to the request as follows, to wit: Pierre Juzan, Peter Pitchlyun, G. W. Harkins, Jack Pitchlynn, Israel Fulsom, Louis Laflore, Benjamin James, Joel H. Nail, Hopoynjahubbee, Onorkubbee, Benjamin Laflore, Michael Lafore, and Allen Yates and wife shall be entitled to a reservation of two sections of land each, to include their improvement where they at present reside, with the exception of the three first-named per- sons and Benjamin Laflore, who are authorized to locate one of their sections on any other unimproved and unoccupied land, within their respective districts. Art. II. And to each of the following persons there is allowed a reservation of a section and a half of land, to wit : James L. McDonald, Kobert Jones, Noah Wall, James Campbell, G. Nelson, Vaughn Brashears, R. Harris, Little Lender, S. Foster, J. Vaughn, L. Durans, Samuel Long, T. Magagha, Thos. Everge, Giles Thompson, Thomas Garland, John Bond, William Laflore, and Turner Brashears ; ENKOLLMENT IN a?HE FIVE CIVILIZED TEIBES. 179 the two first-named persons may locate one seation each and one section jointly on any unimproved and unoccupied land, these not residing in the nation- the others are to include their present residence and improvement. Also, one section is allowed to the following persons, to wit: Middleton Mackey, Wesley Train. Choclehomo, Moses Foster, D. W. Wall. Charles Scott Molly Nail. Susan Colbert, who was formerly Susan James, Samuel Garland' Silas Fisher, D. McCurtain. Onklahoma, and Polly Fillecnthey, to be located la entire sections to include their present residence and improvement, with the exception of Molly Nail and Susan Colbert, who are authorized to locate theirs on any unimproved unoccupied land. John Pitchlynn has long and faithfully served the nation in character of United States interpreter; he has acted as such for forty years. In considera- tion it is agreed, in addition to what has been done for him, there shall be granted to two of his children, to wit. Silas Pitchlynn and Thomas Pitchlynn, one section of land each, to adjoin the location of their father; likewise to James Madison and Peter, sons of Mushulatnbbee. one section of land each, to include the old house and improvement where their father formerly lived, on the old military road adjoining a large prairie. And to Henry Groves, son of the Chief Natticache, there is one section of land given, to adjoin his fathers' land. And to each of the following persons half a section of land Is granted on any unoccupied and unimproved lands in the districts where they respectively live, to wit: Willis Harkins, James D. Hamilton, William Juzan, Tobias Laflore, Jo Doke, Jacob Fulsom, P. Hays, Samuel Worcester, George Hunter, William Train, Robert Nail, and Alexander McKee. And there Is given a quarter section of land each to Delila and her five father- less children, she being a Choctaw woman residing out of the nation; also the same quantity to Peggy Trihan. another Indian woman residing out of the nation, and her two fatherless children; and to the widows of Pushmilaha and Pucktshenubbee, who were formerly distinguished chiefs of the nation, and for their children four quarter sections of land, each In trust for themselves and their children. All of paid last-mentioned reservations are to be located under and by direc- tion of the President of the United States. Art. III. The Choctaw people, now that they have ceded their lands, are solicitous to get to their new homes early as possible, and accordingly they wish that a party may be permitted to proceed this fall to ascertain whereabouts will be most advantageous for their people to be located. It is therefore agreed that three or four persons (from each of the three districts) under the guidance of some discreet and well-qualified person or persons, may proceed during this fall to the West upon an examination of the country. For their time and expenses the United States agree to allow the said twelve persons two dollars a day each not to exceed one hundred days which Is deemed to be ample time to make an examination. If necessary pilots acquainted with the country will be furnished when they arrive in the West. Art. IV. John Donly, of Alabama, who has several Choctaw grandchildren, and who for twenty years has carried the mail through the Choctaw Nation, a desire by the chiefs Is expressed that he may have a section of land, it is ac- cordingly granted, to be located in one entire section, on any unimproved and unoccupied land. Allen Glover and George S. Gaines, licensed traders in the Choctaw Nation, have accounts amounting to upwards of nine thousand dollars against the Indians who are unable to pay their said debts without distressing their fam- ilies; a desire is expressed by the chiefs that two sections of land be set apart ta be sold and the proceeds thereof to be applied toward the payment of the aforesaid debts. It is agreed that two sections of any unimproved and unoc- cupied land be granted to George S. Gaines, who will sell the same for the best ■price he can obtain, and apply the proceeds thereof to the credit of the Indians on their accounts due to the before-mentioned Glover and Gaines, and shall make the application to the poorest Indian first. At the earnest and particular request of the chief Greenwood Laflore, there Is granted to David Haley one-half section of land, to be located in a half sec- tion on any unoccupied and unimproved land as a compensation for a journey to Washington City with dispatches to the Government and returning others to the Choctaw Nation. 180 BKEOLLMENT IN THE FIVE CIVILIZED TEIBES. The foregoing is entered into as supplemental to the treaty concluded yes- terday. , Done at Dancing Eabbit Creels; the 2Sth day of September, 1830. Mr. Post. Suppose that these Indians who had the right either to remove west of the Mississippi or to remain in Mississippi under this treaty remained in Mississippi and did not exercise the right to take allotments, what is their status as to citizenship ? Mr. Sullivan. What is their condition as to citizenship ? Mr. Post. Yes, sir. Mr. Sullivan. The fourteenth article provides that those who de- sired to remain and become citizens of the State can do so by signify- ing their intention. Here is the point, in answer to the question, that four months of the six months had expired before the agent got hia credentials, and the record shows that he was a drunkard and a dis- reputable character, and taking into consideration the character of the people — uneducated, unlettered and untrained, and amenable to the State laws — I do not think they have any status as citizens and they are not treated so in any respect save by those who administer the laws of Congress. That is my experience. Mr. Carter. Are they allowed to sit on a jury ? Mr. Sullivan. No, sir. Mr. Carter. Do you mean to say that in practice they are not allowed to sit on the jury, or does the law prohibit it ? Mr. Sullivan. There is no prohibitory clause that I know of in the law, but not one has ever been on a jury. They are never sum- moned to a jury. Mr. Carter. They are taxed? Mr. Sullivan. Yes, sir. Mr. Carter. They pay taxes? Mr. Sullivan. Yes, sir. Very few of them have anything to pay on. Mr. Carter. I mean that they are subject to taxation? Mr. Sullivan. Yes, sir; that is the law. Mr. Carter. There is no law prohibiting them, so far as the law goes, from attending the schools? Mr. Sullivan. None that I know of. Mr. Carter. They have the right to vote under the law ? Mr. Sullivan. Yes, sir. Mr. Carter. But in practice they are not permitted to? Mr. Sullivan. No, sir; they do not. The conditions are papllel with those of the colored man. Without disgressing from the sub- ject, we have a primary in Mississippi, and I think in most of the Southern States, and nobody can participate in that primary but a white Democrat, and he must have been in good standing wiih the party two years preceding the election in which he proposes to vote. He must pay all taxes demanded of him by the first day of February for two years preceding the election, or he is put on the delinquent list. Mr. Carter. Have you any law defining what a white citizen is in Mississippi? Mr. Sullivan. I do not know that we have. Mr. Carter. Suppose that an Indian should pay his taxes and there was no protest against his voting, could he vote in the Demo- cratic primary? ENEOLLMENT IN THE FIVE CIVILIZED TKIBBS. 181 Mr. StTLLrvAN. No, sir. Mr. Carter. Why? Mr. Sullivan. Nobody but a white man ; a white Democrat. Mr. Carter. Do you not have Democratic and Republican primaries ? Mr. Sullivan. No Eepublicaii primaries. Mr. Post. Does not the law provide for them? Mr. Sullivan. Yes, sir; they can hold them under the same law Mr. Carter. Is it your legal requirement that prevents anyone but a white Democrat from voting ? Mr. Sullivan. That is the language of the law, in a Democratic primary. Mr. Carter. What restrictions have you about voting in a Re- publican primary? Mr. Sullivan. I am not as familiar with that. We have never held a Republican primary. Mr. Carter. Could these Indians vote in a Republican primary ? Mr. Sullivan. As to the primary law of the State of Mississippi, I do not know. Mr. Carter. But they could vote in the general election? Mr. Sullivan. Yes, sir ; everybody can vote at the November elec- tion. Mr. Ballinger. Do you have any Republican primaries in your State? Mr. Sullivan. No, sir; we have a small faction in the State with headquarters at Jackson. They poll in the general election a pretty good vote. Mr. Carter. There is no Republican primary ? Mr. Sullivan. No, sir; it is one-sided. I think it would be far better if we had — I do not mean to criticize the Democrats — half Republican and half Democratic officers. It would be more health- ful for any government. Mr. Post. What do you think should be done for these Indians ? Mr. Sullivan. If it were left to me to look after these Indians or to do something for them I would advise this : I think they ought to have little homes with restrictions by the Federal Government or some person who is the proper authority, that they could not be burdened or incumbered in any way. I further think that there should be some general school established. They are willing to go. I think further that there should be established an industrial school or something of that sort. I think that their apparent idleness, their negligence, and their unfitness to enter into society is largely because of their poverty-stricken condition, and that there are persons in the State preying upon them whenever they have anything. Now, that is what I would do. I do not Imow of anything better. I say this to you, that when you get these little boys where they can do some- thing for themselves, with proper protection, that you would see thess come up like my friends here. I do not know of a nicer gentleman, neat and genteel in every respect, and so on. That is not the case with the Choctaws down there. That is about what I would do for them. . ... . ^, Mr. Post. Do they live m communities m the aggregate or are they segregated and live separately and apart from each other? 182 ENHOLLMBNT IN" THE FIVE CIVILIZBD TKIBES. Mr. Sullivan. Well, they originally lived, and do now, to some extent, in communities. That is why I spoke of what we denomi- nated Indian families. Mr. Post. What do they do for a living? Mr. Sullivan. They work for white people ; they pick cotton, hoe, and plow. Mr. Post. Do they get the customary wages of the country — ^that is, the wages paid in the community in which they live ? Mr. Sullivan. I hardly think they do. Mr. Post. What do you know about that ? Mr. Sullivan. Well, I know that they give their services in the way of trade ; they split so many rails and pick so much cotton and then they are paid so much for it in the way of trade. But I do not believe they get the better end of the deal ; that the small farmer or man who hires them does not deal very fairly with them. Mr. Post. Does an Indian get as much as a colored laborer? Mr. Sullivan. No, sir; I do not think he does. Mr. Post. Are they as reliable and as good workers as colored workers ? Mr. Sullivan. I think they are as reliable. However, some of them do not talk well and somebody must talk for them. Their work is usually good. Mr. Post. Now, Mr. Sullivan, the Choctaw Nation practically had not gone out of existence as a tribal nation, and this fourteenth article provided a way of restoring them if they would go to Indian Terri- tory. Now, do you think it would be fair to compel the Choctaw Nation to open up the rolls to these people you have out there and allow them to become citizens of the Territory occupied by the nation ? Mr. Sullivan. I have never been in favor of a general reopening of the rolls; I think it is burdensome and troublesome and that we would be flooded with five or six thousand applications from Missis- sippi. Mr. Post. Do you think it would be fair and equitable to admit them to citizenship in the Choctaw Nation and allow them to remain in Mississippi ? Mr. Sullivan. Well, I believe this : I believe they ought to be set- tled with to some extent, about equal to those who went, because it was not their fault that they did not go. In fact, those who did go had to be clothed and cared for, and those who remained are as bad otf, if not in a worse condition. I do not want to place any imposi- tion upon the people of the State of Oklahoma, and I would not be willing to take anything away from them that they were justly enti- tled to as a matter of law, but I look at it in this way : If my brother lives in California and I live in the District of Columbia, we having a common heritage, and if circumstances, conditions, or war should carry me to England, I am still his brother, and whatever estate is left for us in New York, or any other State, I am entitled to partici- pate in. That is the general way I look at this question. Mr. Post. Would that be a fair illustration in view of the provi- sions contained in the fourteenth article of the treaty ? Mr. Sullivan. I believe that if all of them had gotten their reser- vations and had them now there never would have been any question of this kind. ENBOLLMENT IN THE FIVE CIVILIZED TEIBES. 183 ^r. Post. Do you think, Mr. Sullivan, that if back in 1830, 1840, or 1850 these Indians had taken their allotments they would still nave them? Mr. Sullivan. Many of them would, or at least their children and grandchildren would. Mr. Post. Do you not think the result would have been that many of the allotments would have gotten away from them? Mr. Sullivan. In some instances that might have happened. Mr. Post. What kind of a district are you in — an agricultural dis- trict? Mr. Sullivan. Yes, sir ; it is purely an agricultural district. May I speak a few words on that line ? Mr. Post, I do not care particularly to go into that question. Is the condition of these Indians that you mention any worse than the poorer classes of other citizens ? Mr. Sullivan. A good deal. Mr. Post. In what respect? Mr. Sullivan. They have not anything, and they depend for their daily bread on their daily labor. Mr. Post. Have you not a good many other people of that kind? Mr. Sullivan. Well, yes ; a good many. Mr. Post. Both colored people and white people ? Mr. Sullivan. Yes, sir; but then most of the colored people and white people have homes ; they have deeds for their homes or they are paying for them. But that is not the case with the Choctaws. There are very few of them in that situation; but the rest of us — the white people and the negroes — have pretty good residences. Then, the white people and the colored people are stronger and their associations are better. The Indians to whom I have been referring represent the weakest delegation we have in the State. They are in the worst condition imaginable, and I have applied to some gentle- men for assistance for them in order that they might have sufficient food to keep theiri alive. Mr. Carter. They are totally helpless as to business transactions, are they not? Mr. SuLiJVAN. Ninety per cent of them ; 90 per cent are totally helpless. Mr. Carter. And they do not know how to take care of property ? Mr. Sullivan. No. Mr. Carter. They hardly know the value of it ? Mr. Sullivan. That is right. Mr. Carter. And might be very easily cheated out of it by design- ing white men ? Mr. Sullivan. There would be and could be no question about that. Mr. Carter. Then do you think it would benefit them to pay them money ? Mr. Sullivan. I do not think it would, although it would help them temporarily. Mr. Carter. Then you do not favor the Harrison bill? Mr. Sullivan. Well, I do not know the Harrison bill; I am not familiar with it. - . , . , Mr. Carter. It provides for the payment of money instead of the giving of land. 184 ENEOLLMENT IN THE PIVB CIVILIZED TRIBES. Mr. Sullivan. I would amend it to this extent, that they be pro- vided first with a little base ; something of real substance, something they could use themselves, something which would enable them to put themselves on a base of their own. Mr. Carter. But you think that to give them five or six thou- sand dollars would merely result in temporary good ? Mr. Sullivan. That is all. Mr. Carter. And that within a year or less time they would be back for the same kind of relief that they are now asking ? Mr. Sullivan. Yes ; except in a few instances. We have a few of them who are good people and can read and write. Mr. Carter. They really do not need much help, do they ? Mr. Sullivan. Well, they are better off than the others. Mr. Carter. They can take care of themselves among the white people, can they not ? Mr. Sullivan. They can do it much better than the rest of them; yes, sir. Mr. Carter. What you really think ought to be done for these people, if I understand you correctly, is that some kind of a home, which they could not alienate, should be provided for them ? Mr. Sullivan. That is right; and put them in a position to do something for themselves. Mr. Carter. How many of them would you say there are who should have that kind of assistance ? Mr. Sullivan. Well, that is a question I could hardly answer. I believe there are between 1,000 and 1,200 in the State. I might say that I visited every community in April and May of 1912 or 1913. Mr. Ballinger. Do not the reports of the commission show that there are upward of 3,000? Mr. Carter. He is speaking of those who are largely helpless. Mr. Ballinger. I am speaking of the full-blood Choctaws. Mr. Post. What does your agricultural land sell for? What is the average price ? Mr. Sullivan. It ranges from $5 to $15 an acre. Fifteen years ago it went almost begging for a buyer, and excellent land was sold at $1 and $1.50 an acre. I myself sold 40 acres Mr. Post (interposing). How large a plantation or farm would it be necessary to allot to a family? Mr. Sullivan. How much shouTd be allotted? Mr. Post. Yes. Mr. Sullivan. Well, I think from 40 to 80 acres would be plenty^ That is as much as a man has any business with. Of course, it de- pends upon the class of land. If it was good land, laid well and was good agricultural land, a man would need less of it. Mr. Post. Could that land be secured in Mississippi ? Mr. Sullivan. Yes, sir ; it could be procured, a great deal of it in my country. Mr. Post. In what size tracts? Mr. Sullivan. Well, I know of one gentleman who offers 2,000 acres at $4 an acre, and there are many large pines on the land which would be worth five times the price of the land. I wish to say that I sold 40 acres about five years ago Mr. Post (interposing.) What did you say about these 2,000 acres, that it had what on the land? ENBOLLMENT IN THE FIVE CIVILIZED TRIBES. 185 Mr. SuLLjvAN. I say, I know of one gentleman who is anxious to sell 2,000 acres. He would sell it in bulk Mr. Post (interposing). But you said something about having something on it. Mr. Sullivan. There are pines on many of the acres, and one pine alone would pay for 5 or 6 acres. And that land is within 15 miles of the N. O., M. & C. Railroad, which is a new road through there. Mr. Carter. Mr. Sullivan, to review a little bit and make it per- fectly clear : Had the Mississippi Choctaws a right to obtain patents for lands? Mr. Sullivan. Yes, sir. Mr. Carter. After they had lived upon them for five jears ? Mr. Sullivan. Yes, sir. Mr. Carter. And if they had done that nothing could have pre- vented Mr. Sullivan (interposing). Patents issuing. Mr. Carter. Yes. Mr. Sullivan. I tjiink not. Mr. Cariter. Then does not their trouble come about by the fact that they have abandoned their homes? It may be true at the in- stance of some white men who wanted the land, but nevertheless their trouble conjes about by the fact that they have abandoned their homes ? Mr. Sullivan. I am sure in many instances it does, although probably in some instances it was their own free will. Mr. Arnold. I had occasion to look up some of this land that had been scheduled to some families of full-blood Indians, for instance. Elan Tooklo, and I found that the land had been sold for taxes; and I found on further investigation that Mr. Post (interposing.) Against whom were the taxes levied? Mr. Arnolix It was this way: The land had been scheduled to the Indiansj and there was a certain law down there — I am not familiar with the statute — ^whereby you might squat on this tract of land and have it scheduled to you for taxes, and I would squat over here on this tract and have it assessed to me, the particular tracts of land, of course, being scheduled to the Indians. Of course, the land would be assessed for taxes against us which we would let become delinquent and I would bid in the tract you had squatted on and you would bid in the tract I had squatted on, and thereby you and I would have tax titles. Mr. Post. Would it st.and on the duplicates in the name of the Indians? Mr. Arnold. It stands that way on account of the Indians being in a helpless condition and being unenlightened in many things, having no knowledge of the laws as far as that is concerned. Mr. Post. But the land was sold because the Indian neglected to pay his taxes? ,,.,,, Mr. Arnold. AVell, because he did not have proper supervision at the time and had no knowledge of what to do about it. Now, many of these Indians would not know what to do with the land if they had it to-day, and I would not give them a tract of land to-day unless restrictions were thrown around them, unless it were put in charge of the Interior Department, or some other official who would 186 ENEOLLMENT IK THE FIVE CIVILIZED TBIBES. look after it for them. It would be nonsense to give them land even to-day. Mr. Carter. Is it not a fair conclusion that these Indians were dispossessed of a great proportion of this land by^ having some- thing actually paid to them ? Mr. Arnold. I would not like to say yes to that, but they were dispossessed. Mr. Carter. Let us take a practical application of it. Mr. Post, we will say, is an Indian, and you and I want his land. We are white men and we both move upon it. The Indian has the right to the title, and is it not reasonable to suppose that one of us, per- haps both of us, would be trying to get to that Indian and pay him some money to get title to it? Mr. Arnold. That is true. Mr. Carter. And is it not reasonable to suppose that Mr. Post, the Indian, not laiowing the value of the land and not placing as high a valuation on it as white men would, would deal with one of. us and take money for that land? Mr. Arnold. That is true. I would like to refer to the case of Emil John, one of the men who was on here in January and whom I introduced to you. His father moved to Oklahoma and received a very valuable piece of land, part of his allotment being at Pool- ville and part of it at Long Grove. His father was killed on the streets of Ardmore about three years ago, and this man was his only heir, and his interest in bis father's estate was bought for $25. Mr. Carter. That is evidently the way they lost their lands. Mr. Arnold. And that is why I say I would not give them any land unless you throw restrictions aroimd it. Mr. Post. Mr. Sullivan, you are a lawyer and have been prac- ticing for a long time. Do you frequently procure patents based upon Indian titles? Mr. Sullivan. No, sir. I have only secured, I think, about three, and that has been within the last three or four years. I did that through and for the heirs, and did it on a proper showing and affidavits filed in the land office. Mr. Post. You did that on the basis that the Indian had taken his land and had the title, and upon making proper proof that he occu- pied the land the General Land office granted you a patent for the land, either to his heirs or somebody else through him? Mr. Sullivan. Yes, sir. Anybody who could make the proper proof would be entitled to receive the patent, and that is all I did. Mr. Carter. Do you not think that in the majority of instances the trouble and present condition of the Choctaws of Mississippi comes about by not having restrictions placed on their lands by that treaty? Mr. Sullivan. Yes, sir; I do. I want to say in that connec- tion Mr. Carter (interposing). And if there had been restrictiona placed upon those lands preventing the Indians from selling them for a certain length of time, no matter whether he made application for a patent or not, would not they have placed upon the title to those lands such an impediment that white men would not have attempted to take possession of them and build valuable improve- ments upon them? ENROLLMENT IN THE FIVE CIVILIZED TEIBES. 187 Mr. Sullivan. I think so. I want to say right there that I want to raise one more question. I can not cite you to the references, but I think these lands were not to be sold except by and with the con- sent of the President of the United States. That was in 1830, and then subsequent acts of Congress dealt with that question; but whether they were sold in that way I can not tell you. However, I want to say this, that the land to which I got title is in the hands of what is Imown as the Mississippi Land Co. — Mississippi has nothing? to do with it — located at Winchester, Ky. ; and if a Choctaw believed he was entitled to it and tried to prove it, he would be involved in a Federal suit that would require endless litigation, and he never could recover. Mr. Carter. What was the effect of the issuance of this scrip J What was it issued for ? Mr. Hurley. The scrip was issued in lieu of lands that the In- dians would have received under the fourteenth article if the Gov- ernment of the United States had fulfilled its treaty agreements with them by giving them the land that they were entitled to under the treaty. The first half of the scrip was issued in Mississippi. Mr. Carter. When was that ? Mr. Hurley. That was in 1842 — under the act of 1842. Mr. Carter. Twelve years after the treaty ? Mr. Hurley. Yes, sir. Mr. Ballinger. In 1852? Mr. Hurley. Just a moment, Mr. Ballinger. The money for the second half of the scrip was paid in Indian Territory under the act of 1852; but the first half of the scrip — the only scrip ever issued— was under the act of 1842. There was a commission sent down there to determine the number of Indians who had signified, or attempted to signify, their intention to acquire rights under the fourteenth article to take land in Mississippi. It was found that the agent — ■ Ward — who had been sent there by the Government, both of his own accord and at the instance of the white settlers in Mississippi? and probably the Imowledge and consent of the United States Govern- ment, had not given the Indians a fair opportunity to signify their intention. There was made under the act of March 3, 1837, and thar acts of February 22, 1838, and August 23, 1842, what was known as the Vroom-Murray roll. On that roll was placed the name of every Indian who stated that he had attempted to make his claim under the fourteenth article, and to each Indian so enrolled the Government issued scrip, which entitled that person to take up land on the public domain in Mississippi and Arkansas, Alabama and Louisiana, States where there was public domain subject to entry. It was found that the so-called scrip buyers bought up all of that scrip from the Indians, and that the Indians got no benefit from that issuance of scrip, except in instances where the Indians were highly intelligent. The Government then capitalized the second half of that scrip at the rate of $1.25 an acre for the land that it represented, and the interest on that amount amounted in all to $872,000. That money, in lieu of scrip, could not under the law which it was issued be paid to any claimant except Choctaw Nation in Indian Territory; on other words, a claimant had to move to Indian Territory before securing the money for second half of the scrip. AU of that money was paid out in Indian Territory to the 188 ENKOLLMENT IN THE FIVE CIVILIZED TRIBES. scripees whose names appeared on the Vroom-Murray roll, and who had removed to the Choctaw Nation West. Mr. Post. None of it was paid to the Mississippi Choctaws ? Mr. HuHLET. It was all paid to the Mississippi Choctaws who had removed to the Choctaw Nation; they had to remove there before they could get it. Mr. Carter. What was the necessity for that requirement — ^that they had to move to Indian Territory before they could get the scrip ? Mr. Httelet. Well, this was paid to the Mississippi Choctaws for whatever claims they had under the fourteenth article. The United States Government wanted them to get over into Indian Territory, where they might avail themselves of the privilege of becoming a Choctaw citizen again, so they would not pay them the money in lieu of their rights under the fourteenth article and let them remain in Mississippi. Mr. Post. I did not understand what became of the first half of the scrip. Mr. Hurley. The first half was sold to crip buyers, as they call them, and the land was entered largely by white men. Mr. Post. That is, it was used in taking up public land ? Mr. Htjelet. Yes, sir. Mr. Carter. By white men ? Mr. HtTRLET. Yes, sir. But the fourteenth-article claimants that we are talking about here have received full settlement for any vestige of right that they had under the fourteenth article; they got scrip to the amount of $1.25 an acre for every acre of land that they were entitled to under the fourteenth article. I have the laws here that provide for the issuance of that scrip, and I would like to read them into the record, with the permission of Mr. Sullivan. Mr. Carter. To what page do you refer ? Mr. Hurley. I will find it in just a minute. It is on page 27 of our brief ; the act approved March 3, 1837, fifth Statutes at Large, ,180, provided: Be it enacted by the Senate and Bouse of Representatives of the Vnited States of America in Congress assembled. That there shall be appointed by the President, by and with the advice and consent of the Senate, three commis- sioners whose duty it shall be to meet in the State of Mississippi, at such time and plnce as the President shall appoint and designate, and there proceed to ascertain the name of every Choctaw Indian who was the head of an Indian family at the date of the treaty at Dancdng Rabbit Creek, who has not already obtainad a reservation under said treaty, and who can show by satisfactory evidence that he or she complied or offered to comply with all the requisites of the fourteenth article of said treaty, to entitle him or her to a reservation under said article; and also the number and names of all tlie unmarried chil- dren of such heads of families who formed a part of the family and were over ten years of age, and likewise the number and names of the children of such heads of families as were under ten years of age, and report to the President, to be by him laid before Congress, all the names of such Indians, and the dif- ferent sections of land to which such heads of families were respectively enti- tled, together with the opinions of the commissioners, and whether any part of said lands have been sold by the Government, and the proofs applicable to each case Mr. Sullivan (interposing). How much more have you? Mr. Hurley. I would like to read the entire act into the record, and then there are two other acts on this same question. Mr. Ballinger. Why not give them to the stenographer? ENROLLMENT IN THE FIVE CIVILIZED TRIBES. 189 Mr. HuBLET. But that is not giving them to the committee ; the committee's time is taken up with other matters, and here is where they learn about these things. I would like to have the committee understand what these acts provide. Mr. Sullivan. I do not want to interfere, but I would like to get through this morning. I have been in the city eight months and I would like to get away. Mr. Carter. You are going to cover all this in your argument, are you not? Mr. Htjrlet. Yes; but it would be better, I presume, to have it put in at a point where the question is raised, and if it is satisfactory to the committee I will have these three acts copied into the record at this point. Mr. Carter. Without objection", that may be done. Mr. Httrlet. I now submit the following: Chap. XXXIX. An act for the appointment of commissioners to adjust the claims to reservations of land under the fourteenth article of the treaty of eighteen hundred and thirty with the Choctaw Indians. Be if enacted 'by the Senate and House of Representatives of the Unit^A States of America in Congress assembled, That there shall be appointed by the President, by and with the advice and consent of the Senate, three commis- sioners whose duty it shall be to meet in the State of Mississippi at such time and place as the President shall appoint and designate, and there proceed to ascertain the name of every Choctaw Indian who was the head of an Indian family at the date of the treaty at Dancing Rabbit Creek, who has not already obtained a reservation under said treaty, and who can show by satisfactory evidence that he or she complied or offered to comply with all the requisites of the fourteenth article of said treaty, to entitle him or her to a reservation under said article; and also the number and names of all the unmarried chil- dren of such heads of families who formed a part of the family and were over ten years of age, and likewise the number and names of the children of such heads of families as were under ten years of age, and report to the President, to be by him laid before Congress, all the names of such Indians, and the dif- ferent sections of land to which such heads of families were respectively enti- tled, together with the opinions of the commissioners, and whether any part of said lands have been sold by the Government, and the proofs applicable to each case. Sec. 2. And he it further enacted, That before entering upon their duties each of said commissioners shall, before some judge or justice of the peace, take an oath faithfully to discharge tjie duties imposed by this act. Sec. 3. And be it further enacted. That said commissioners are hereby author- ized to appoint a secretary, whose duty it shall be to record correctly all the proceedings of said board and faithfully preserve the same as well as all deposi- tions and other papers filed before said board, and who shall take an oath to discharge the duties imposed on him by this act. Sec. 4. And be it further enacted. That upon the request of the commis- sioners it shall be the duty of the district attorney of the State of Mississippi to attend said board and give his assistance in procuring the attendance of wit- nesses, and his aid and advice in their examination, the better to enable the commissioners to ascertain the facts correctly in each case. Sec. 5. And be it further enacted. That each of said commissioners shall receive, while in the discharge of the duties hereby imposed, a salary at the rate of three thousand dollars per annum, the secretary a salary at the rate of fifteen hundred dollars per annum, and the district attorney a salary at the rate of t*o thousand dollars per annum, to be paid quarterly out of any money In the Treasury not otherwise appropriated. Sec. 6. And be it further enacted. That said commissioners shall have full power to summon and cause to come before them such witnesses as they may deem necessary, and to have them examined on oath, and if any witness shall testify falsely, with an intention to mislead said commissioners, such witness shall be guilty of wilful and corrupt perjury, and shall upon conviction before 190 ENEOLLMENT IN THE^ FIVE CIVILIZED TRIBES, any jurisdiction having cognizance thereof suffer the punishment by law In- flicted on those guilty of that offence. Sec. 7. And lie it further enacted, That nothing contained in this act shall be BO construed as to sanction what is called contingent locations which have been made by George M. Martin for the benefit of such Indians as were sup- posed to have been entitled to other lands which have been sold by the United States, such contingent locations having been made without any legal authority, it being the true intent of this act to reserve to Congress the power of doing that which may appear just when a correct knowledge of all the facts is obtained. Sec. 8. And 6e it further enacted, That this act shall be in force to the first day of March, eighteen hundred and thirty-eight, next, and no longer. Approved, March 3, 1837 (5 Stat. L., 180). Chap. XIII. An act to amend an act entitled " An act for the appointment of commls- Bloners to adjust the claims to reservations of land under the fourteenth article of the treaty of eighteen hundred and thirty with the Choctaw Indians." Be it enacted iy the Senate and House of Representatives of the United States of America in Congress assembled, That the commissioners provided for in the act hereby amended, or a majority of them, shall have full power and authority to adjourn their sessions to such place or places within the State of Missis- sippi as in their judgment the interest of the Government and of the claimants may require such session to be held. Sec. 2. And he it further enacted. That in the case of the death, resignation, or absence of any one of the said commissioners the remaining two commission- ers shall have full power and authority to proceed and execute the powers given by this act or the act hereby amended. Sec. 3. And tie it further enacted. That the said commissioners shall have all the powers of a court of record for the purpose of compelling the attendance of witnesses, administering oaths, touching matters depending before them, pre- serving order, and punishing contempts; and shall have power to make all needful rules for the regulation of the proceedings before them, as well as to employ one or more interpreters, and one or more agents to collect testimony for the United States. Sec. 4. And lie it further enacted. That for defraying the contingent expenses of the said commission the sum of five thousand dollars be, and the same is hereby, appropriated out of any money in the Treasury not otherwise, appro- priated. Sec. 5. And he it further enacted. That the said act sh.ill be and remain in force until the first day of August next. Sec. 6. And be it further enacted by the authority aforesaid. That the com- pensation to be made to the district attorney for his services shall be equal to the compensation allowed to a commissioner under the act hereby amended. Sec 7. And be it further enacted. That nothing contained in this act, or the act which this is intended to amend, shall be so construed as to embrace the claim of any Indian or head of a Choctaw family who has removed west of the Mississippi River. Sec. 8. And be it further enacted. That if it shall be proved to the satisfaction of said commissioners that any claimant has attempted, or shall attempt, to Bubstitnte the child of any other Indian as and for his own, or has attempted or shall attempt, by his testimony, to substitute for the child of any other claimant the child of another Indian, the name of such claimant so attempting to make such substitution shall be stricken from the list of claimants. Approved, February 22, 1838 (5 Stat L., 211). Chap. CLXXXVII. An act to provide for the satisfaction of claims arising under the fourteenth and nineteenth articles of the treaty of Dancing Eabblt Creek, concluded In September, one thousand eight hundred and thirty. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. That the act approved on the third of March, eighteen hundred and thirty-seven, entitled "An act for the appointment of commissioners to adjust the claims to reservations of land under the fourteenth article of the treaty of eighteen hundred and thirty, with the Choctaw In- dians; and also the act approved on the twenty-second day of February, ENBOLLMENT IN THE FIVE CIVILIZED TEIBES. 191 eighteen hundred and thirty-eight, entitled "An act to amend an act entitled 'An act for the appointment of commissioners to adjust the clajms to reserva- tions of land under the fourteenth article of the treaty of eighteen hundred and thirty, with the Choctaw Indians,' so far as the same are not repealed or modified by the provisions of this act," be, and the same are hereby, revived and continued in force until the powers conferred by ihm act shall be fully executed, subject, nevertheless, to repeal or modification by any act of Con- gress. And all the powers and duties of the commissioners are hereby ex- tended to claims arising under the nineteenth article of the said treaty, and under the supplement to the said treaty, to be examined in the same manner and with the same effect as in cases arising under the fourteenth article of the said treaty: Provided, That the salary of said commissioners shall not exceed the rate of two thousand five hundred dollars per annum. Sec. 2. And he it further enacted. That subpoenas for the attendance of wit- nesses before the said commissioners and process to compel such attendance may be issued by the said commissioners, or any two of them, under their seals in the same manner and with the same effect as if issued by courts of record, and may be executed by the marshal of any district, or by any sheriff, deputy sheriff, or other peace officer designated by the said commissioners, who shall receive for such services the same fees as are allowed in the district court of the United States for the district in which the same shall be rendered for similar services, to be paid, on the certificate of the commissioners, out of the contingent fund appropriated by the fourth section of the act secondly above recited, which was approved on the twenty-second day of February, one thousand eight hundred and thirty-eight, and which- is revived by this act: Provided, That nothing herein contained shall be construed to revive such por- tion of the act approved the third day of March, one thousand eight hundred and thirty-seven, referred to In the first section of this act, as provides for the employment and pay of the district attorney of either of the districts of the State of Mississippi. Sec. 3. And he it further enacted, That when the said commissioners shall have ascertained that any Choctaw has complied or offered to comply with all the requisites of the fourteenth article of the said treaty to entitle him to any reservation under that article, which requisites are as follows, to wit: That said Choctaw Indian did signify his or her intention to the agent in person, or by some person duly authorized and especially directed by said Indian to signify the intention of said Indian to become a citizen of the State, within six months from the date of the ratification of the said treaty, and had his or her name, within the time of six months aforesaid, enrolled on the register of the Indian agent aforesaid for that purpose; or shall prove to the entire satisfaction of the said commissioners and to the Secretary of War that he or she did signify his or her intention, within the term of six months from the date of the ratification of'the treaty aforesaid, if his or her name was not enrolled in the register of the agent aforesaid, but was omitted by said agent; and, secondly, that said Indian did, at the date of making said treaty, to wit, on the twenty-seventh day of September, eighteen hundred and thirty, have and own an improvement in the then Choctaw country ; and that having and owning an improvement at the place and time aforesaid did reside upon that identical improvement, or a part of it, for the term of five years continuously next after the ratification of said treaty, to wit, from the twenty- fourth of February, eighteen hundred and thirty-one, to the twenty-fourth of February, eighteen hundred and thirty-six, unless it shall be made to appear that such improvement was, before the twenty-fourth day of February, eightaen hundred and thirty-six, disposed of by the United States, and that the reservee was dispossessed by means of such disposition; and, thirdly, that it shall be made to appear to the entire satisfaction of said commissioners and to the Secretary of War that said Indian did not receive any other grant of land under the provisions of any other article of said treaty; and, fourthly, that it shall be made to appear in like manner that said Indian did not re- move to the Choctaw country west of the Mississippi River, but he or she had continued to reside within the limits of the country ceded by the Choctaw Indians to the United States by said treaty of twenty-seventh September, In the year eighteen hundred and tliirty, it shall be the duty of said commis- sioners if all and each of the above requisites shall be made clearly to appear to their satisfaction and the Secretary of War shall concur therein, to proceed to ascertain the quantity of land to which said Indian, by virtue of the four- teenth article of said treaty, is entitled to, which, when ascertained, shall be 192 ENEOLLMENT IN THE FIVE CIVILIZED TKIBES. located for said Indian, according to sectional lines, so as to embrace the im- provement, or a part of it, owned by said Indian at the date of said treaty; and it shall be the duty of the President of the United States to issue a patent to said Indian for said land if he or she be living, and if not to his or her heirs and legal representatives; and in like manner shall the commissioners afore- said ascertain the quantity of land granted by said article to each chi'd of said Indian, according to the limitations contained in said article, and locate said quantity for said children contiguous to and adjoining the improvement of the parent of such child or children ; and the President shall issue a patent for each tract of land thus located to said Indian child if living, and if not to the heirs and legal representatives of such Indian child. But if the United States shall have disposed of any tract of land to which any Indian was entitled under the provisions of said fourteenth article of said treaty, so that it is now Impossible to give said Indian the quantity to which he is entitled, including his improvements, as aforesaid, or any part of it, or to his children on the ad- joining lands, the said commissioners shall thereupon estimate the quantity to which each Indian is entitled and allow him or her for the same a quantity of land equal to that allowed, to be taken out of any of the public lands in the States of Mississippi, Louisiana, Alabama, and Arkansas, subject to entry at private sale; and certificates to that effect shall be delivered, under the direc- tion of the Secretary of War, through such agent as he may select, not more than one-half of which shall be delivered to said Indian until after his removal to the Choctaw territory west of the Mississippi River. The said commissioners shall also ascertain the Choctaws, if any, who relinquished or offered to relin- quish any reservations to which he was entitled under the nineteenth article of the said treaty, or whose reservations under that article had been sold by the United States ; and shall also determine the quantity to which such claim- ant was entitled, and the quantity of land which should be allowed him on ex- tinguishment of such claim at the rate of two-fifths of an acre for every acre of the land to which said claimant was entitled, said land having been esti- mated under this article at fifty cents per acre : Provided, nevertheless, That no claim shall be considered or allowed by said commissioners for or in the name or behalf of any Indian claimant whose name does not appear upon the lists or registers of claimants made by Major Armstrong, special agent for that purpose, In conjunction with the three chiefs of the three Choctaw districts, and returned to the Department of Wax in January, eighteen hundred and thirty-two, and who does not appear from those registers to be entitled to a reservation under said nineteenth article. Sec. 4. And he it further enacted, That the said commissioners, within two years from the time of their entering upon the duties of their offices, and as often as shall be required by the President of the United States, shall report to him their proceedings in the premises^ with a full and perfect list of names of all the Choctaws whom they shall have determined to be entitled to reserva- tions under this act; the quantity of land to which each shall be so entitled, the number of claims which can be located according to the provisions of the fourth section of this act, and such as can not be located according to the pro- visions of the fourth section of this act ; and the ^wers and duties of the said commissioners shall cease at the expiration of two years from the time of the first organization of the board ; and their proceedings may be terminated by the President at any time previous to the expiration of the said two years. Sec. 5. And be it further enacted. That the commissioners to be appointed under this act shall also ascertain and determine the quantity of land to which any Choctaw or other person named in the supplement to the said treaty of Dancing Rabbit Creek was entitled by virtue thereof, and which such person has by any means been prevented from receiving. Sec. 6. A nd he it fiither enacted. That if the President of the United States shall approve and confirm the determination of the commissioners heretofore appointed to investigate the claims existing under the fourteenth article of the said treaty of Dancing Rabbit Creek, in any case, he shall cause to be delivered to the claimant, if he be a Choctaw Indian, his legal representatives or heirs, certificates, as provided by the fourth section of this act, for the quantity of land to which such claimant shall appear, by such determination, to have been entitled, in full satisfaction and discharge of such claim: Provided, Such de- termination was made by adhering, in every Instance, to the requisites con- tained in the fourth section of this act : And provided, also. That said claims, nor either of them, can not now be located, according to the provisions of the fourth section of this act. ENKOLLMENT IN THE FIVE CIVILIZED TEIBES. 193 Sec. 7. And be it further enacted. That distinct accounts shall be kept of the cei-tiflcates issued in satisfaction of the claims provided for by this act, and of all expenses attending the execution of the same ; and the amount thereof shall be retained and withheld from any distribution to the States. Sec. 8. And he it further enacted. That nothing in this act contained shall be so construed as to authorize the said eommis-sioners to adjudicate any claim which may be presented by a white man who may have had, or now has, an Indian wife or family; and any patent to land which shall issue on any In- dian claim under the provisions of the treaty aforesaid shall be issued to the Indian to whom the claim is allowed if living, and If dead to his or her heirs and legal representatives any act of Congress or usage or custom to the con- trary notwithstanding. Sec. 9. And he it further enacted. That no claim shall be allowed under the fourteenth article of said treaty if the said commissioners shall be satisfied by such proof as they may prescribe that said claim had been, previous to the expiration of five years from the ratification of said treaty, assigned, either in whole or in part ; and in case of a partial assignment or agreement for an assignment thereof the same shall be allowed so far only as the original Indian claimant was at that date the bona fide proprietor thereof. Sec. 10. And he it further enacted, That all claims under either of the articles of said treaty mentioned above, or the supplemental articles thereof, which shall not be duly presented to said commissioners for allowance within one year after the final passage of this act shall be thereafter forever barred. Approved August 23, 1842 (5 Stat. L., 513). Act of Congress approved July 21, 1852 (10 Stat. L., 19). For the interest on the amount awarded Choctaw claimants under the four- teenth article of the treaty of Dancing Rabbit . Creek, of twenty-seventh of September, eighteen hundred and thirty, for lands on which they resided, but which it is impossible to give them, and in lieu of the scrip that has been awarded under the act of twenty-third of August, eighteen hundred and forty- two, not deliverable east, by the third section of said law, per act of third of Blarch, eighteen hundred and forty-five, for the half year ending thirtieth of June, eighteen hundred and fifty-two, twenty-one thousand eight hundred dollars : Provided, That after the thirtieth day of June, eighteen hundred and fifty-two, all payments of interest on said awards shall cease, and that the Secretary of the Interior be, and he is hereby, directed to pay said claimants the amount of principal awarded in each case, respectively, and that the amount necessary for this purpose be, and the same is hereby, appropriated, not exceed- ing eight hundred and seventy-two thousand dollars: Provided further. That the final payment and satisfaction of said awards shall be first ratified and approved as a final release of all claims of such parties under the fourteenth article of said treaty, by the proper national authority of the Choctaws, in such form as shall be prescribed by the Secretary of the Interior. Act of Congress approved August 30, 1852 (10 Stat. L., 42). That the Secretary of the Interior be, and he hereby is, authorized to examine the reservation claims of the Choctaws known as Bay Indians and of those Ohoctaws in whose cases the scrip awarded by the late board of commissioners has not been issued; and where he shall find that such Indians are clearly entitled to land under the fourteenth article of the treaty of eighteen hundred and thirty, and under the several acts heretofore passed in relation to such claims, he is hereby authorized to extend to such claimants the provisions applicable to such claims in the acts of twenty-third August, eighteen hundred and forty-two, and of third March, eighteen himdred and forty-five. Act of Congress approved March 3, 1853 (10 Stat. L., 227). That the authority of the Secretary of the Interior to examine the claims of Choctaws to reservations of land under the treaty of eighteen hundred and 64969—15 13 194 ENEOLLMENT IN THE FIVE CIVILIZED TKIBES, thirty shall extend to all cases recommended by either of the boards of com- missioners appointed to examine said claims, and his awards in scrip shall be received by them in full satisfaction of their claims against the Government arising under said treaty, and the scrip thus awarded shall be received as other warrants in payment for any public lands subject to sale at private entry. Mr. Post. What did this commission do? Mr. Hurley. The commission under that act reported to the Presi- dent the names of the persons who had signified or attempted to signify their intention to remain in Mississippi and avail themselves of the benefits of the fourteenth article. Mr. Carter. Who was that — Ward? Mr. Hurley. No; I believe this was George M. Martin; I am not sure as to the name of the chairman of this , commission. Congress then passed another act authorizing a further investigation into the matter and prescribing rules under which the applicants might be identified. Then, again, in 1842 an act was passed which recognized a roll of these applicants and provided for their payment in scrip in lieu of the land that the United States was then unable to give them, not by reason of any action of the Choctaw Nation, but by reason of the fact that the United States had failed to perform the obligations that it assumed in the treaty of 1830, and the United States claims that it has discharged the claims that these persons had under the fourteenth article. Mr. Carter. We are going into that very fully when we get to it. I want to go into that with Mr. Harrison and Mr. Ballinger, and we may want to ask Mr. Kichardson some questions about it. Mr. Post. Do you know, Mr. Hurley, the amount of scrip that was issued ? Mr. Hurley. The first half was issued to approximately 3,800 persons, who were said by all of these different commissions to con- stitute every person who had attempted to signify his or her inten- tion to remain in Mississippi. Mr. Ballinger. Mr. Hurley, the exact number was 1,155. Mr. Hurley. One thousand one hundred and fifty-five heads of families. If you will read the record correctly you will find it was approximately 3,800 persons, or 1,155 heads of families and their wives and children. Mr. Ballinger. It is set out in the case of the Choctaw Nation v. The United States (119 U. S.). Mr. Hurley. I have a list of the scripees. It is in the form of a Senate document, and it gives a list of 3,800 persons. Mr. Ballinger. This whole question was completely covered in that decision. Mr. Post. What is that decision? Mr. Ballinger. The Choctaw Nation v. The United States (119 U.S., p. 1). Mr. Hurley. I have here Document No. 898, Sixty-first Congress, second session, which contains a complete list of the persons who re- ceived patents under the fourteenth article; also a complete list of the persons who received scrip in lieu of patents. Mr. Carter. Mr. Sullivan, have you anything else that you desire to say ? o J Mr. Sullivan. Yes. I beg to differ with Mr. Hurley as to the question before the committee. So far as scrip is concerned it is ENEOLLMEJi^T IN THE FIVE CIVILIZED TEIBES. 195 not relevant- or pertinent to the question here, from the fact that the persons who are now in Mississippi did not receive the pay, but it was only those who went to Oklahoma. Mr. Post. Their parents did, did they n6t? Mr. Sullivan. Only those who went to Oklahoma. I meant to say that the question you spoke of as to scrip did not apply to the people who were in Mississippi, because this scrip was delivered to them in the State of Oklahoma. Mr. Hurley. It is an historical fact that all these scripees did re- ceive their pay in Indian Territory, but some of them went over there for the purpose of getting this money and returned to Mississippi. The money was paid out by Douglas Cooper, who was then agent to the Choctaws, and the roll showing the amount paid and the name of the person to whom it was paid is written out in longhand on parch- ment, and is to be found in the auditor's office in this city at this time. Mr. Post. Does it show when and where it was paid ? Mr. Hurley. It shows that the payments were made in the Choc- law Nation. There is some $67,000, T believe, unaccounted for, but that is because the papers can not be found in the auditor's office. Mr. Arnold. If you are going to deal with those people as though they were educated and cultured people, lettered and competent to take care of themselves, and are going to observe all the legal techni- calities, then our time here is useless and fruitless. Of those people there are 500 who are minors. Mr. Carter. In order to deal with the question at all we have to know all the legal complications concerning it. Mr. Arnold. I concede that. Mr. Carter. I did not intend to precipitate this long discussion about who were and who were not scripees; the thing I wanted to find out was exactly what scrip meant. Mr. Hurley. I could introduce this [indicating] as part of this record at this point. Mr. Carter. You are going to make an argument later, and I think it would be better to have it put in your own statement. Mr. Hurley. I will do that if the chairman thinks best, but it seems to me it is more opportune to answer these questions as they are raised. Mr. Carter. I think all those questions will be raised. If we attempt to go into this question of who got scrip and who did not, it will require more meetings than this present one, and I may say that we do expect to do that. Mr. Hurley. This document shows absolutely and conclusively, and is of the date the determination was made. Mr. Carter. The committee will not conclude this matter at this hearing ; we are going to give you time to be heard. I think it would be better for your own argument, as "far as that goes, to have it con- secutively. Mr. Hurley. I will abide by the will of the chairman. Mr. Ballinger. So as to clarify this situation I will ask this ques- tion : Mr. Hurley, is it your contention that the persons who received this scrip- received it in lieu of and in extinguishment of a right in the Choctaw Nation? , , , • . • i. Mr. Hurley. I am saying just exactly what the provisions author- izing that payment said, that they received that scrip in lieu of their right under the fourteenth article. 198 ENEOLLMENT IN THE FIVE CIVILIZED TKIBES. Mr. Carter. Mr. Ballinger, you and Mr. Hurley can try that out in your own time. We will let Mr. Sullivan proceed. Mr. Hurley. I am not giving any opinion ; I am stating what the law recites on that subject. Mr. Sullivan. I want to ask Mr. Hurley a question and can get through with it in a second. I want to ask you — and I am asking for information — whether this scrip was ever paid out in the State of Mississippi to any of the people in Mississippi ? Mr. Hurley. It Avas paid, as the records in the auditor's office in this city show, to persons who claimed under the fourteenth article of the treaty of 1830; those persons were required to move to Indian Territory before they were entitled to have payment made to them for the second half of their scrip; some of them moved to Indian Territory for the purpose of getting this scrip and immediately re- turned to Mississippi. So far as I have been able to ascertain, there has not been one dollar of the $872,000 paid to any Indian while re- siding in Mississippi ; the law under which it was paid required that they go to Indian Territory to collect it. Mr. Sullivan. I want to say in conclusion something like this: That as to the history and technicalities in the matter and the deal- ings with these people — if it were between you and me or between people of equal ability, it would be proper to bring all of these questions up, but I want to say that inasmuch as these people are in a very distressful condition — having been cared for to some extent and now being looked after — that I think there should be something done for them. I do not care to suggest the manner or method of doing it, but will leave it to this committee and Congress, believing, of course, in the judgment of the committee and that whatever is done will be right. While I have not been in many of the large cities I do say that I am pretty certain you can not find 1,000 or 1,200 people of any color, race, or condition who are in the fix that those people are in. I have secured, through my own asso- ciations with them and with people who are friendly with them, some of the necessaries of life in order to give them something on which to live, and they have gotten a little work to do now and then. I do not Ivnow that I can say anything else. I have said about all I care to say, although I might answer questions about the modes, methods, manners, and customs of these people. But before you ask me any questions I would like to offer for the record a resolution passed by my State legislature, joint resolution No. 4, which touches on the tribal relations. Mr. Carter. Without objection, the resolution may be inserted in the record. (Said resolution follows:) Senate concurrent resolution 4, requesting Congress to enact legislation for the benefit of tlae Cboctaw Indians in tlie State of Mississippi. Whereas there are now living in this Stnte a number of Choctnw Indians who remained East at the time of the establishment of the Choctaw Nation In the Indian Territory, under the express stipulation of the treaty that by so remaining they "shall not lose the privilege of a Choctaw citizen"; and Whereas a number of said Choctaws now living in this State were, in the years 1898 and 1903, identified as Choctaws, entitled under the provisions of the said treaty tn the privileges of Choctaw citizenship ; and ENKOLLMBJSTT IK THE FIVE CIVILIZED TKIBES. 197 Whereas there are a number of other Choctaws liviug iu this State who, though entitled to such identification, failed through Ignorance and poverty to present their claims for enrollment; and. Vi^hereas the Congress of the United States is now engaged In winding up the affi'ii-s of the Choctaw Nation, and is proposing to distribute the tribal proijprty of said nation to those entitled thereto; and Where; s the Choctaws in this State are poor and needy and ignorant, many ■ of them speaking only the Choctaw language and living in accordance with the usages and customs of their ancestors, and have for 80 years lived here under these conditions without the supervision of the Interior Department, which has maintained and cared for and supervised the affairs of other full-blood Indians, and without the privilege of educating their children in the schools provided by the United States for the education and instruction of the Indians ; and Whereas the Choctaw Indians in this State and elsewhere have always been and are now a peaceful, law-abiding, pnd deserving people and aided the United States during the years of its early history, and have never engaged in war upon the citizens of the United States or committed atrocities as have many other Indian tribes which have been thereafter fostered and cared for by the Government of the United States, and provided annuities, lands, and other property : Therefore be it Resolved hy the senate {the house of representatives concurring), That the Congress of the United States be requested to enact such legislation as will secure to the said Choctaws of this State their interest in the tribal funds and property of the Choctaw Nation, and that a settlement be made with them whereby the funds so secured to them may be utilized to buy homes and main- tain and educate them in the neighborhoods where they now live or in such places as they may select. Resolved' further, That the secretary of the senate send certified copies of this resolution to the presiding officers of the Senate and House of Eepresenta- tives at Washington. I, John Falkner, jr., secretary of the senate, do hereby certify that the fore- going is a true and correct copy of the resolution as passed by the senate and house of representatives. John Falknek, Jr., Secretary of the Senate. Mr. Carter. Whom do you represent? Mr. Sullivan. I represent the full-blood and identified Choc- taws in Mississippi. Mr. Carter. Have you contracts with them? Mr. Sullivan. No, sir; not specific. Mr. Carter. Have you powers of attorney ? Mr. Sullivan. Yes, sir. I have in many instances, but I have not with all of them. Mr. Carter. Will you file one of the powers of attorney with the stenographer ? Mr. Sullivan. I do not happen to have a copy with me, but I will file one later. Mr. Carter. And give the names of those you represent? Mr. Sullivan. Yes, sir. Mr. Arnold. Will you pardon me? Mr. Sullivan. Yes. Mr. Arnold. I would be pleased to file with the stenographer a copy of the contract which we have — that is, that I have myself and my power of attorney— to represent the Mississippi Choctaws; and since they have executed to me this power of attorney and contract I have associated with me the firm of Ealston & Richardson and T. B. Sullivan, of Carthage, Miss. I will be glad to file them. Mr. Hurley. I would like to ask Mr. Sullivan if he can state to us, approximately, how many Mississippi Choctaws he represents? 198 ' ENEOLLMBNT IN THE FIVE CIVILIZED TEIBES. Mr. StnxivAN. Between 1,000 and 1,200. I want to say that we visited every Indian community in the State of Mississippi ; we were two months on the go. It was 1912, was it not ? Mr. Arnold. 1913. Mr. Sullivan. In April and May, 1913. We visited them and held meetings with them. We visited nearly every Indian com- mimity in Mississippi during 1913. Mr. Post. Is your fee a fixed fee or a contingent fee? Mr. Sullivan. No, sir; I filed a document with the stenographer a while ago in reference to the court services I have rendered to the Indians. (Said document follows:) The State of Mississippi, Leake County, May the 15th, 1913. Partial account of T. B. Sullivan, attorney at law, with the Mississippi Choctaw Indians for legal service for them in the various courts in the State of Mississippi and expenses incurred, legal service, advice, and labor performed for them. Beginning in the fall of 1906 and ending May the 15th, 1913. To wit : Item one. Carthage, Miss., Leake County. In circuit court, April term, 1907. The State of Mississippi vs. Murder, Lum Billie, and Will Billie, defendants, Mississippi Choctaw Indians, Identified. In the fall of 1906 Lum Billie and Will Billie, Mississippi Choctaw Indians, were indicted by affidavit for the murder of one Eliza Anderson, a Mississippi Choctaw Indian girl. They called on me to defend them in the preliminary trial before Magistrate G. F. McKay. O. A. Luckett, of Kosciusko, Miss. ; Pres- ley Groves, of Ofahonia, Miss. ; and A. H. Laugston, of Carthage, Miss., appeared and prosecuted. We were eight days in the preliminary trial; the court remanded the de- fendants to jail without bail. In February, 1907, I brought them before Chan- cellor James F. McCool on a writ of habeas corpus. After a day's investiga- tion, defendants were remanded to jail without bail. They were indicted for murder by the next grand jury at the April term, 3907, circuit court Leake County, Mississippi, minute book K, page 118. They were put to trial on the charge of murder, T. B. Sullivan, defending. After hearing the State's testimony, I ask for and received a peremptory instruction from the court for the defendants, and they were discharged. The two Choctaw l)oys were poor, had nothing, and were unable to pay me a cent. I think two years' hard work and reasonably good service in the courts ia reasonably worth and a reasonable fee would be at least one thousand dollars ($1,000.00). I have not received any pay or a thing for this service. T. B. Sullivan, Atty. at Law. I conducted two suits iu the chancery courts of my county, Leake County, Miss., one for Ben Cumby, a Mississippi Choctaw Indian, and one in the same court for one Aimer Anderson, a Jlississippi Choctaw Indian, without pay, for the reason they were unable to pay me a cent for the service, and I have never received a cent from them for this service. I think and charge as a reason- able fee for said service and ask that the same be paid to me the sum of five hundred dollars (for the two, $250.00 each) $500.00. All these peo)ile herein named are full-blood, identified Mississippi Choctaw Indians. T. B. Stn[.Liv\N, Atty. n1 Law. The State or Mississippi, Leake Goimty: The State of Slisslssippi r.s. Murder, Simon .Toshua, defendant, a Mississippi Choctaw Indian, identified, full blood. This Choctaw shot and killed a negro man, Hasting Witt Defendant was appreheniled, arrested, and charged before the magistrate's court with murder. ENROLLMENT IN THE FIVE CIVILIZED TRIBES. 199 He called for me; I appeared, secured bond for him. The grand jury con- vened and Simon Joshua was indicted and charged with the murder of Hasting Witt. At the November term, circuit court Leake County, Miss., on the 14th day of said term, 1912, Simon Joshua was arraigned on the charge of murder. He called for me; I appeared and defended him. He was acquitted on the facts and testimony by a ,1ury of white men. See minute book circuit court Leake County, Miss., page 51, book L, November term, 1912. This Simon Joshua Is an old Mississippi Choctaw Indian 75 years old. He is in destitute circumstances. He has nothing; was not able to pay me a cent. I have not received a cent for this service. I charge and think a reasonable fee would be $1,000.00. T. B. Sullivan, Atty. at Law. P. S. The above and foregoing are a few of the many items of legal service which I have performed for the Mississippi Choctaws during the past seven years. T. B. Sullivan, Atty. at Law, Carthage, Miss. Mr. Post. The question I asked was whether it is a fixed fee or a contingent fee. Mr. Arnold. It is a contingent fee, in case of success. Mr. Post. What per cent? Mr. Arnold. Twenty-five per cent; but subject to the approval of the Department of the Interior. Mr. Carter. Is that Mr. Sullivan's contract? Mr. Arnold. My contract, and I have associated him with me. Mr. Carter. You and- Mr. Sullivan are associated together? Mr. Arnold. Yes, sir. Mr. Sullivan has just referred to some document with reference to his services in criminal cases, and, as I 6ay, the Indians have executed to me a power of attorney and con- tract, and I have associated with me, under that power of attorney and contract, the gentlemen whom I have referred to, together with Mr. Sullivan. I will be pleased to file a copy of the power of at- torney and contract. Mr. Carter. You did not quite answer my question. I want to know whether Mr. Sullivan is associated with you in all the con- tracts that you have, or have you some in which Mr. Sullivan is not interested ? Mr. Arnold. He is not interested in any contract except the con- tract to which I have referred, and that is with those full-blood Indians. Mr. Carter. In which Mr. Sullivan is associated -jvith you? Mr. Arnold. Yes, sir. Mr. Hurley. How many claimants do you represent, Mr. Arnold? Mr. Arnold. I presume anywhere from 1,000 to 1,200 of them. Mr. Post. You say that your fee is a contingent fee, based upon recovery, and that it is 25 per cent ? Mr. Arnold. Yes. Mr. Post. Have you collected any fees? Mr. Arnold. No, sir; I have not collected one penny, but I am paying the expenses— bearing the expenses. Mr. Ballinger. Can I ask you a question, Mr. Arnold? Mr. Arnold. Well, it depends on the question whether you can or not. . . . . Mr. Ballinger. Did you not testify and admit m your testimony m the Winton case that you had collected as high as $30,000 in a single year from these claimants? 200 BNEOLLMENT IN THE FIVE CIVILIZED TRIBES. Mr. Arnold. I did not. Not from these claimants. Mr. Ballinger. From what class of claimants? Mr. Arnold. I am speaking here — and I do not care to have you ask me another question — with reference to the full-blood identified Choctaws in Mississippi. I never received a cent from any of them. Mr. Carter. Let me ask a question which may straighten it out. Your statement with reference to the Winton case applied to Choc- taw Indians who had already been enrolled, did it not ? Mr. Arnold. Well, it is owing to what part of my statement in the Winton case you are now referring to, Mr. Chairman. In that case I was asked a number of questions, and early in 1896, 1897, 1898, and 1899 I collected some cash from mixed-blood claimants that failed of enrollment, but my activities in the interest of those people have long since ceased. I am only here before this committee urging a recovery now for those full-blood and identified Choctaws in the State of Mississippi. Mr. Carter. So that none of the money collected and referred to in your testimony in the Winton case applies to the claims that you now have? Mr. Arnold. Not a penny of it ; no, sir. Mr. Ballinger. Is it not a fact that when you recently visited Mississippi and held meetings with these Indians that you took up collections and received from $1 to $10 per head from the Indians? Mr. Arnold. It is not true, and I deny the statement. Mr. Sullivan. I insist on going on. I would like to have this con- troversy cease so that I can get through. I will state for the benefit of the committee that when I get through with the Indian business I will feel awfully glad of it ; I will be glad to quit. But I have never received a cent, and it has cost me a right smart sum, and, besides, it has taken me from other business. Mr. Carter. You have never received any remuneration ? Mr. Sullivan. None whatever. I have been with Mr. Arnold at several meetings in the State of Mississippi, and he never received a cent nor did the Indians pay him anything. I am saying this in an- swer to Mr. Ballinger's question because, of course, his question did not apply to me. But I do know that there is a man down in Missis- sippi, and he has been there for several years, three or four years, who collects $2.50 or $3 from everyone of them that he can get. Mr. Carter. What is his name ? Mr. Sullivan. His name is A. P. Powell. Mr. Carter. Who does he represent? Mr. Sullivan. He claims to represent the Mississippi Choctaws. Mr. Carter. What attorneys, if any, is he working in the in- terest of? Mr. Sullivan. I do not know, sir. Mr. Carter. Do 3'ou know for whom he takes contracts? Mr. Sullivan. I do not. He came to the hotel in my town and the proprietor refused to let him come to the table. Mr. Carter. Why? Mr. Sullivan. Because he said he was a darkey, and Powell got hold of it, got mad, and would not stay with him. He wanted to come down in that county and wanted to know if I would get him a Elace to board. I said I would be glad to do anything I could for im, and I went to the other hotel and made arrangements for board ENROLLMENT IN THE FIVE CIVILIZED TRIBES. 201 for him. He then asked me if I could not help him. I said, " I can not, for the reason that I do not want to take anything from them, because they have not got anything, and I understand you collect $2.50 or $3 from them." He said that was a matter of good faith. T said, " r can not take any stock in it with you, and I do not think you can do anything in this county " — that is, in central Mississippi. Mr. Carter. Is mis the same Powell who was connected with Cantwell and Crews? Mr. Sullivan. I think it is, yes, sir; that is my judgment. Then he left and said he was on his way to Philadelphia, in a county east of me. He went there and spent three or four months there and made considerable collections. I saw two or three white men who had paid him $100 for them. Mr. Carter. Does he not claim to have been a member of the Mis- sissippi State Legislature ? Mr. Sullivan. Not that I know. Mr. Carter. Does your memory reach back to reconstruction days ? Mr. Sullivan. Not to be worth anything; I was a very small Idd then. I think I was born in 1860 or 1861, and, of course, I do not remember anything about it, only as a matter of history. Mr. Carter. I have been informed that he was at one time a mem- ber of the assembly of Mississippi during reconstruction days. Mr. Sullivan. It is possible that he was. Mr. Arnold. In order to clarify this matter, you asked me what kind of a contract we are proceeding under here, and I propose to put it in. Now, what time shall I put it in ? Mr. Carter. You may hand it to the stenographer and he will put it in the record. Mr. Arnold. But I have not it with me. Mr. Carter. You may put it in when you get it. Mr. Arnold. I will bring it to the next hearing, and then if there are any other questions you would like to ask I will be pleased to answer them. Awhile ago Mr. Ballinger asked me whether it was not true that at the time I was down there in 1913 organizing those people I did not receive from $5 to $10 and other sums of money from them, and I stated positively that it was not true. I desire to say at this time that if he has any evidence of the fact that I have received a penny from one of those Choctaws I would be pleased to have him submit it at the same time. Mr. Carter. All right ; you may question Mr. Ballinger later. Mr. Sullivan. In order to clarify this atmosphere around here I wish to conclude by stating that I have offered the joint resolution of the senate and house of my State. I have heard all along the line,, as you probably have, a good deal about grafting. If there has been any grafting along the route that I have traveled I have never seen it. I have never received a dime. It has taken me away from my little business and I often regret that I commenced it. I do not like to quit. It has broken up my affairs at home. I have been with Mr. Arnold during the period he speaks of, during which we were through Mississippi, and have held consultations in my office in the past several years, and I have never seen him collect a cent, but I do- know Mr. Powell did, and I do know others. Mr. Carter. Since you have mentioned others, you may say who they are. 202 ENROLLMENT IN TUB FIVE CIVILIZED TEIBES. Mr. Sullivan. One is G. M. P. Turner, who lived in the Territory before it was admitted into the Union. Mr. Carter. A colored man? Mr. Sullivan. No ; a white man. He collected money in various places down there, from $25 to $30 and $40, from one-quarter, one- eighth, and one-sixteenth. Mr. Carter. Who else? Mr. Sullivan. I do not know that I can name anybody else. Mr. Hurley. These people that paid him $35 and $45 and various sums, were they the same persons who were too poor to remove to the Choctaw country? Mr. Sullivan. No, sir. Those were white people who were doing very well. I also heard Mr. Rush at Lake Station on the Southern Railroad, who told me last April that he paid $90 himself to Mr. Powell for a number of Choctaws around Philadelphia, where his brother lives. (Thereupon the subcommittee adjourned.) Subcommittee of Committee on Indian Affairs, House of Representatives, Tuesday, June 9, 1914. The subcommittee this day met, Hon. Charles D. Carter (chair- man) presiding. Mr. Carter. The subcommittee has met this morning for the pur- pose of hearing Mr. Webster Ballinger. STATEMENT OF MR. WEBSTER BALLINGER, WASHINGTON, D. 0. Mr. Ballinger. Mr. Chairman and gentlemen of the committee, my appearance is entered this morning in behalf of those Mississippi Choctaws who were identified by the commission Mr. Carter (interposing). The Dawes Commission? Mr. Ballinger. Yes, sir ; and not enrolled ; those identified on the McKenna roll ; those who were subsequently identified under the act of July 1, 1902, and not enrolled; and, further, those full bloods re- maining in Mississippi and Louisiana who have not been enrolled. Mr. Carter. You represent the identified and unidentified Indians? Mr. Ballinger. Yes, sir; the full-blood Indians, whether identi- fied or unidentified, and their children. Mr. Carter. You have your contracts with you, copies of them? Mr. Ballinger. I am appearing here for the Field, Lindley & Howe estate, who enteTed into a contract with these parties in 1896 . and prosecuted their rights to the present time, under which employ- ment they succeeded in securing the enrollment of those who are now on the rolls, and they are now prosecuting the claims of those who failed to secure their enrollment. That contract is a matter of record in the Court of Claims, and I will be glad to attach to the record here proper copies of all instruments that I am appearing under. . Mr. Hurley. Would you object to stating the number of appli- cants you represent? Mr. Ballinger. There are approximately 3,000. Mr. Carter. You represent all the Mississippi Choctaws? ENKOLLMBNT IN THE FIVE CIVILIZED TRIBES. 203 Mr. Balunger. Yes, sir; all the full bloods. _ Gentlemen of the committee, I desire to address myself to the pro- visions contained in the bill H. E. 7296 relating to the Mississippi Choctaws. The first part of the bill provides: That to enable the Secretary of the Interior to correct errors, adjust In- equalities, and complete the work of preparing final rolls of citizenship of each of the Five Civilized Tribes in Oklahoma, to finally wind up all of their affairs, and to distribute the estates of said tribes among the beneficiaries entitled to share therein, he is authorized and directed to — The bill provides for certain classes, and the third class, com- mencing on page 2, relates to the Mississippi Choctaws, as follows : Third. To prepare a special roll which shall contain the names of all children now living and born prior to March 4, 1906, either of whose parents is now enrolled as a Mississippi Chowtaw, together with the names of all full-blood Mississippi Choctaws where were identified by the Commission to the Five Civilized Tribes prior to March 4, 1007, as well as any full-blood Mississippi Choctaw who was not so identified and the children now living and born prior to March 4, 1906, to any person who may be so enrolled as a Mississippi Choctaw. If you will turn to page 6, provision is made for the amount of money each person enrolled shall receive. This is the third provision, on page 6, and is as follows : Provided, however, That those persons enrolled under this act as Mississippi Choctaws under the third class named herein shall receive in full satisfaction of any class they may have in or to said tribal jiroperty a sum of money equal to $1,040. Mr. Post. The way the language reads, those persons that come under that class shall receive $1,040? Mr. Ballingbr. It is intended to mean each person enrolled. Mr. Post. It does not read that way. Mr. Ballinger. It should be corrected so that it will provide that each person enrolled under the act as a Mississippi Choctaw will receive $1,040. There is a further provision in the bill for the re- struction of this money. Commencing on page 9, provision is made for the reference of any question of attorney's fees to the Court of Claims, and in no event shall any attorney or all the attorneys com- bined be allowed more than 15 per cent of the amount recovered, and then, on page 11, section 5 promdes as follows : That any person who shall receive, directly or indirectly, any money or other thing of value from any person who may be enrolled under this act or who may be an applicant for enrollment under this act for services rendered or to be rendered under a contract not theretofore approved by the Secretary of the Interior, except as hereinbefore provided, shall be deemed guilty of a misde- meanor, and upon conviction thereof shall be subject to a fine of not less than $500 nor more than $5,000 and imprisonment in the penitentiary for not less than one year or more than five years, in the discretion of the court. I submit, gentlemen of the committee, that any legislation passed by Congress ought to contain a provision similar to the last one I have just read for the protection of the full-blood Mississippi Choc- taw as well as for -the protection of all other persons throughout the country who have a little Choctaw blood in them and who have been duped by attorneys who have made flattering representations to them as to their ability to secure their enrollment as members of the Choctaw Tribe. There are some persons, claiming to be attor- neys, who have been making large sums of money for years by secur- ing contracts and fees from these ignorant people which is a shame and a disgrace. 204 ENEOLLMENT IN THE FIVE CIVILIZED TEIBES. I will proceed now with the consideration of the question of the right of the Mississippi Choctaw to share in the property of the Choctaw Tribe. It has been said during the course of the discussion of this matter before your committee that the Mississippi Choctaws have legal rights arising under certain laws and treaties which partake of the nature of a 'tested interest in the common property of the tribe in Oklahoma. It must be apparent that such a contention is without merit. The power of Congress over the undivided tribal property, both lands and monevs, is plenary, in the langiiage of the vSupreme Court of the United States as expressed in Stephen v. Cherokee Nation (174 U. S., 445 ) , Lonewolf v. Hitchcock (187 U. S., 565), and many other cases. Thei'e can be no legal or vested right in property over which Congress has plenary control. T take it that is admitted by all. T^Tiatever right the Mississippi Choctaws as a class or as indi- viduals have in the undisturbed common property of the tribe is an equitable right. Their only hope for relief rests in an appeal to the conscience of Congress to accord them such recognition as they can show they are in equity and good conscience entitled to. Unless a clear equitable right can be established Congress, notwith- standing its plenary power over the tribal property, has no moral right to recognize any class of the Mississippi Choctaws or to accord them distributive shares in the undivided tribal property. To do so would be to commit a wrong, would be a betrayal of a trust and an abuse of power. Let us now consider the claim asserted from an equitable view. The first treaty negotiated with the Choctaws looking to the ac- quisition of the Avestern lands — the identical lands now owned by them in Oklahoma— was the treaty of 1820 (7 Stat. L., 210). Let us examine this treaty and ascertain the policy of the Gov- ernment at that time with reference to removal, Avhich has consist- ently been urged as the sole objection to their rights to share in the western property of the tribe. This we find in the preamble to the treaty, which recites : Wlierens it is iiii important oli.lect with the Presitlent of the United States. to promote the civilization of the Choctaw In(ii;ins, by the establishment of schools amongst them; and to perpetuate them as a nation, by exchanging for a small part of their lands here, a country beyond the Mississippi Kiver — Note this language: where all who live by hunting and will nut work mny be coUerted and set- tled together. And whereas it is desirable to the State of JOssissippi to ob- tain a small part of the land belonging to said nation; for the mutual accom- modation of the parties, and for securing the happiness and protection of the whole ChoctaAV Nat'on, as well as preserving that harmony and friendship which so happily subsists between them ami the TTuited States. * * * the parties have freely and voluntarily entered into the following articles. The policy of the Government in 1820 in making a grant of the western lands to the Choctaws, the property now in controversy. " where all who live by hunting and will not work may be collected and settled together," -was for the removal only of such Indians thereto as liAed by hunting and would not work. And it was under this treaty that the Choctaws obtained title to the wesern lands- in exchange for a small part only of their eastern lands. ENROLLMENT IN THE FIVE CIVILIJ5BD TEIBBS. 205 Mr. Carter. Do you know the number of acres of land that were ceded by the Indians under this treaty of 1820? Mr. Ballikger. No; I can not state. Mr. Carter. You have no evidence at all of that? Mr. Ballinger. I can not state definitely the amount. Mr. HuRLET. About 4,000,000 acres. Mr. Ballinger. It was under this treaty that the Choctaws ob- tained^ title to the western lands in exchange for a small part only of their eastern lands. The Supreme Court in Choctaw Nation v. United States (119 U. S., 1-44), in considering the claim of the Government that the cession of the western lands was made under the treaty of 1830, says: It is notorious as a historical fact, as It abundantly appears from the record In this case, that great pressure had to be brought to bear upon the Indians to effect their removal, and the whole treaty — That is, the treaty of 1830— was evidently and purposely executed, not so much to secure to the Indians the rights for which they had stipulated, as to effectuate the policy of the United States in regard to their removal. The most noticeable thing, upon a careful consideration of the terms of this treaty, is that no money considera- tion Is promised or paid for a cession of lands, the beneficial ownership of which is assumed to reside In the Choctaw Nation, and computed to amount to more than 10,000,000 acres. It was not an exchange of lands east of the Mississippi River for lands west of that river. Mr. Post. The Government ceded to the Indians 10,000,000 acres in Oklahoma? Mr. Ballinger. I am quoting from the decision of the Supreme Court in Choctaw Nation v. The United States, which says that there was no consideration passed for the cession of the land in Mis- sissippi under the treaty of 1830. Speaking of the treaty of 1830 the court says ; The latter tract had already bepn secured to them by its cession under the treaty of 1820. Mr. Post. How much land was ceded there? Mr. Ballinger. About 4,000,000 acres in Mississippi for the land west. Mr. Post. How much did the Government cede to the Indians ? Mr. Ballinger. I can not state the number of acres, but it was a very large tract of land west. Mr. Carter. It embraced the Cheyenne, Arapaho, Kiewa, and Comanche Eeservations, Greer County, and the present Chickasaw and Choctaw Nations. Mr. Ballinger. That is correct. Mr. Hurley. The Chickasaw and Choctaw Nations had more than 7,000,000 acres between the ninety-eighth and one hundredth merid- ians, known as the lease district, and upward of 6.000,000 acres west of the one hundredth meridian. The land west of the one hun- dredth meridian was finally quitclaimed and released to the United States in 1855. The lease district was leased to the United States in 1866. This lease was afterwards construed to a deed or cession, leaving the present Choctaw and Chickasaw Nations the only land vested in the two tribes at this time. Mr. Ballinger. I have not considered the quantity of land and exchange a matter that has any bearing upon this controversy, for 206 ENROLLMENT IN THE FIVE CIVILIZED TRIBES. this reason: In 1820, when the Government made an exchange of western lands for a small part of their lands in Mississippi, the Government did that in the execution of a policy in dealing with the Indians, and then at a subsequent time, and in 1830, it attempted to include all their lands in Mississippi for a new cession of the lands that had previously been ceded to the Indians west of the Mississippi Eiver, under the treaty of 1820, and the Supreme Court held, in Choctaw Nation v. United States, that there had been no considera- tion passed for the lands of the Choctaws in Mississippi ceded bj' the treaty of 1830 — that is, the remainder of the land ceded under the treaty of 1830, which constituted the great body of Choctaw lands in Mississippi — and therefore gave judgment against the United States and in favor of the Choctaw Nation for those lands. Mr. Carter. Do you know how much land the Choctaws owned originally in Mississippi? Mr. Ballinger. Originally the Choctaws, of course, owned a vast area, running from east of the Mississippi River, including the State of Mississippi and a part of the State of Alabama, even over into the State of Georgia. That was their original land holdings, and was gradually diminished until 1820 they had a reservation that was confined to the western part of Mississippi and a portion of Alabama, which included about 14,000,000 acres. Mr. Carter. Can not this committee have a map showing the Choc- taw Nation in 1830 and 1820? Can not you undertake to furnish that, Mr. Hurley? Mr. Hurley. Yes, sir. I have a map showing the original ces- sion west of the Mississippi and referring to all the parts relin- quished by the tribes. Mr. Carter. I do not know that it has any direct bearing on the case, but I am very much interested in knowing just how much land they had and how much land they gave up in the Southern States before they came to Oklahoma. Mr. Hurley. In consideration for the land west of the Mississippi Eiver, conveyed to the Choctaws under the treaty of 1820, the Choc- taws ceded to the United States 4,000,000 acres in Mississippi, and under the treaty of 1830 they ceded the balance of their lands in Mississippi, which was approximately 10,000,000 acres. In all, the Choctaws have given the United States 14,000,000 acres in the State of Mississippi. Mr. Post. The Supreme Court, in the case of the Choctaw Nation V. The United States, said there was no consideration ? Mr. Ballingee. The court held that there had been no considera- tion passed by the treaty of 1830 for the 10,000,000 acres of land in Slississippi that were ceded under that treaty, and accordingly en- tered a judgment in favor of the Choctaw Nation. Mr. Post. What was the amount of that judgment? Mr. Ballinger. The total amount of the judgment was something like $8,000,000. Mr. Post. What became of that money ? Mr. Ballingee. More than $5,000,000 was consumed in costs of Burveys, sales, etc. Mr. Post. What became of the other $3,000,000? .ENROLLMENT IN THE FIVE CIVILIZED TBIBES. 207 Mr. Ballinger. The other $3,000,000 was divided among the Choc- taws in Oklahoma, then the Indian Territory. Whether that was a division per capita or per stirpes, I am not clear. Mr. Post. It was paid to the Choctaws in Oklahoma and not any of it distributed to the Mississippi Choctaws ? Mr. Ballinger. I submit that would not bind or have any effect upon the rights of the Mississippi Choctaws. Mr. Post. It is the fact that I am getting at. Mr. Ballinger. The case was prosecuted in the name of the Choctaw Nation, a judgment was entered in the name of the Choctaw Nation, and the money was paid over to the officials of the Choctaw Nation, for distribution. Mr. Carter. It was paid under the supervision of the United States Indian agent? Mr. Ballinger. I do not believe that is true. I think it was paid over to the treasurer of the Choctaw Nation and distributed by the treasurer and the other officials of the tribe. Mr. Carter. It was done under the supervision of the United States Indian agent. Senator Owen was at that time the Indian agent and be supervised the payment. Mr. Ballinger. I was under the impression, Mr. Chairman, that the present Senator Owen had been the United States Indian agent and resigned a short time before that payment was made, and was appointed by the Choctaw Nation their agent to make the dis- tribution. Mr. Carter. I do not think that is true. I think he was fiscal agent when the payment was make. Mr. Hurley. Since we have gotten into a controversy about these funds and the amount that the Choctaws recovered from the United States, I would like, with the permission of Mr. Ballinger, to insert in the record at this time a statement of just what the funds were and the matter for which they were recovered and the different items that went to make up the judgment that was rendered in favor of the Choctaws. Mr. Ballinger. I have no objection, but I would suggest that you complete your statement and insert it in the record at some other point, showing to whom the money was paid, by whom it was dis- bursed, and whether it was disbursed per capita, per stirpes, or how. Mr. Carter. I think you had better do that in your own time. Mr. Hurley. The only reason for wanting to insert it at this point is thai the argument pertaining to this question' all the way through has been superficial, and no one seems to have an understanding of what that judgment was for, the manner in which it was prosecuted, and how the funds were distributed. Mr. Post. Is Mr. Ballinger right? Mr. Hurley. That judgment was for the net proceeds of the 10,000,000 acres of land and for the land taken by the Territory of Arkansas from the Choctaw territory in adjusting the boundary line. I could read the entire statement. Mr. Post. I probably precipitated this discussion by asking the question whether any of this money reached the Mississippi Choctaws. Mr. Hurley. The records will show conclusively that every dol- lar of this money that was procured for land that was not given to 208 ENROLLMENT IN THE FIVE CIVILIZED TEIBES. the fourteenth-article claimants in Mississippi went to the four- teenth article claimants, and that a court of claims was established to say who Avas entitled to this money, and that under the orders of that court it was paid to the individuals found to be entitled thereto under the fourteenth and nineteenth articles of the treaty of 1830. Mr. Carter. Were those individuals all in Oklahoma, or were any of them Mississippi Indians ? Mr. Hurley. They claimed only for those in Oklahoma. Those who remained in Mississippi were supposed to have their rights ad- justed by the United States Government there. Mr. Ballingbr. There was never a dollar paid to them ; there was never a dollar paid to any Indian in Mississippi. Mr. Stjllivan. While I have heard that many times — none of those provided for under that article and who remained in Missis- sippi ever received anything — Mr. Hurley stated the other day that they went over and paid scrip to certain Mississippi Choctaws. I deny that fact, save that in 1900 and 1903. It was in 1840 when this sum was paid. Mr. Carter. This net proceeds was not paid out in 184:0, but in 1888 or 1889? _ _ ' _ Mr. Sullivan. I am speaking of the scrip. Those who remained in Mississippi — and there are now thousands, some of them 80 years -of age — did not receive the scrip. Those who went to Oklahoma were all Mississippi Choctaws at one time. A little later — 18 years ago — they began to be known as Mississippi Choctaws, I presume to distinguish those in Mississippi from those in Oklahoma, but I presume they were all Mississippi Choctaws. Do you not consider that those in Oklahoma now were Mississippi Choctaws ? Mr. HuRLET. Those who settled there in 1830 ? Mr. Sullivan. At any time. Mr. Hurley. All the Choctaws were originally from Mississippi. I believe it was stated here the other day that the name Mississippi was applied to them only to designate a class of Choctaws not living in the Choctaw Nation. No one denies they were the same blood originally. Mr. Sullivan. That is right. Mr. Carter. You say that this money was all paid to the Indians in Oklahoma? Mr. Hurley. Yes, sir. The greater portion of it was paid to the individual Indians. Of course, some of the funds, I understand, were not individual funds. No individual could have a claim for any portion of the money paid to adjust the boundary line between the ■Choctaw Nation and Arkansas. Mr. Carter. Do I understand you to say that a part of the funds were appropriated in lieu of lands that the Mississippi Choctaws did not receive in Mississippi ? Mr. Hurley. Yes, sir ; a part. Mr. Carter. No part of it was paid to those Choctaws? Mr. Hurley. No part of it was paid to the Choctaws who did not receive land, you mean, in Mississippi? Mr. Carter. Yes, sir. Mr. Post. Those who did not come strictly within the fourteenth article ? ENfiOLLMENT IN THE FIVE CIVILIZED TRIBES. 209 _ Mr. Hurley. No money was paid to those who remained in Missis- sippi and became citizens of the State of Mississippi and did not claim any right as Choctaw citizens. Mr. Carter. Were they entitled to any of it ? Mr. Hurley. They were not, unless they had right imder the four- teenth article. Mr. Post. Why? Mr. Hurley. Because they were citizens of the TJnited States. Mr. Post. You base that upon the fact that they had not taken ad- vantage of the fourteenth article and move to Oklahoma? Mr. Hurley. Net because they necessarily had to move to the Choc- taw Nation. If they had a claim for land in Mississippi, as Mr. Sullivan has said, they should prosecute that claim against the United States Government for their lands in Mississippi. Mr. Carter. The first question I asked you was if any of this net- proceeds appropriation was in lieu of land that the Mississippi Choc- taws did not receive ? Mr. Hurley. Yes, sir. Mr. Carter. A part was for that ? Mr. Hurley. Yes, sir ; but not any Indians in Mississippi. Mr. Ballinger. Have you anything to show that a single Indian not residing in the Choctaw Nation in Oklahoma ever received a dollar of money distributed under the judgment of the United States Supreme Court in the case of the Choctaw Nation v. The United States? Mr. Hurley. There is no evidence to show that any Indian not residing in the Choctaw Nation ever sued or asked for a dollar. The probabilities are that if they had proved their claim it would have been found that there was some one in the State of Mississippi that . the United States had not satisfied under the fourteenth and nine- teenth articles; but those people, if they had any rights, did not sue for them. The people in the Chocta!w Nation did sue and had their rights adjusted. Mr. Carter. It goes back to the question which you answered in the affirmative awhile ago, to wit, Was a part of this money appro- priated for the purpose of paying the Choctaws in Mississippi for the land which they did not get; and if so, is your last answer cor- rect? Mr. Hurley. If there were any Mississippi Choctaws in the State of Mississippi who had any rights against the United States Gov- ernment, so- far as I know, they had not asserted those rights. The rights which were asserted in the net-proceeds case were asserted by Choctaws living in the Choctaw Nation. Mr. Carter. Do you contend now that the Choctaws in Oklahoma collected money belonging to the Choctaws in Mississippi ? Mr. Hurley. No, sir. Mr. Carter. And were not obligated to turn it over to those Choc- tfliWS ^ Mr. Hurley. The Choctaws in Oklahoma have never collected a dollar belonging to the Choctaws in Mississippi. Mr. Carter. I think that the record will show that that is what you have said, because I asked you if any of that money was appro- 64969—15 14 210 ENBOLLMBNT IN THE FIVE CIVILIZED TRIBES. priated and turned over to the Choctaw Nation for the payment of the claims of Indians living in Mississippi for lands which had not been allotted in accordance with the treaty of 1S20 or 1830, as the case may be. If any was appropriated for that purpose and the Choctaw Indians got money which was appropriated for the Choctaw Indians in Mississippi, that seems to indicate an admission of a part of the contention of the gentlemen who seek relief for the Missis- sippi Choctaws. Mr. Ballingee. I am not laying any particular stress on the fact that the Mississippi Choctaws failed to participate in the distribu- tion of those proceeds, but I think it is only fair that counsel should frankly concede facts when they are self-apparent. No individual prosecuted a claim Mr. Post (interposing). If I understand you, Mr. Hurley, in the case of the Choctaw Nation v. The United States, that was a suit brought by the Choctaw Nation against the United States, in which it was claimed that 10,000,000 acres of land ceded by the treaty of 1830 was without consideration on the part of the Government? Mr. Hurley. That was the question at issue in that case. Mr. Post. And the Supreme Court held that the Indians received no consideration for the 10,000,000 acres of land? Mr. Hurley. Yes, sir. Mr. Post. And rendered a judgment amounting to about $8,000,000? Mr. Hurley. Yes, sir. Mr. Post. Which included some other items. As I understand you, that money went into the Choctaw treasury in Oklahoma, and none of the individual Choctaw Indians east of the Mississippi partici- pated in that fund. Am I right about that? Mr. Hurley. You are partly right, Mr. Post, and part of your question is Mr. Post (interposing) . If I understand you, no Choctaw Indian who had not removed under the fourteenth article to Oklahoma re- ceived any of that fund? Mr. Hurley. Let me answer the two sections of your question. First, you ask if the money was paid to the individuals or was paid into the treasury of the Choctaw Nation. Part of it was paid into the treasury of the Choctaw Nation, because it was a tribal fund, and part of it was paid to the secretary of the Choctaw Nation to be checked out again to individual claimants. Mr. Post. Those individual claimants were limited to those who had moved and became citizens of Oklahoma? Mr. Hurley. Yes, sir. You asked how were the Choctaws who remained in Mississippi given their right to what was due them on the 10,000,000 acres of land? Mr. Post. Yes, sir. Mr. Hurley. Each one of those Choctaws who signified or at- tempted to signify his intention of remaining there was to receive out of the 10,000,000 acres of land a certain number of acres. It has been enumerated in the record a number of times. Mr. Post. That is by the treaty of 1820? Mr. Hurley. Under the fourteenth article of the treaty of 1830. The United States Government failed to give those remaining in Mississippi the land that it agreed to give them. An agent named ENBOLLMENT IN THE FIVE CIVILIZED TRIBES. 211 GeorgeW. Martin, I think it was, reported that it was impossible for the United States to give the Indians the land that it agreed to give them._ The United States Government then issued scrip that would permit them to take up land on the public domain to the quantity Mr. Post (interposing). That was in 1842? Mr. Hurley. Yes, sir. They were permitted to take up land under the fourteenth article. Half of the script was issued to the Indians in Mississippi. They disposed of it in such an improvident manner and received so little for it and did not take up the land except in rare instances, that the United States Government decided not to issue any more of the scrip until they had removed West. Those Indians did go West to receive the scrip money. The last half of the scrip was capitalized, amountinsz to $872,000, and was charged against the Choctaw Nation in this judgment that it obtained against the United States. The first half of the scrip was also charged against the Choctaw Nation at $1.25 per acre for the land that the scrip was good for. This scrip and money was paid to the Indians residing in Mississippi. That was their portion of the Choctaw property in Mississippi as measured by the decision of the Supreme Court. Mr. Post. When was the suit brought ? Mr. Httrlet. It was decided in 1889. Mr. Post. When was it commenced? Mr. HuBLET. In 1855 a commission was appointed by the Choctaw .council to settle with the United States all pending claims between the Choctaw Nation and the Government. The commission ap- pointed to settle those claims took various actions in the matter from time to time until the case was filed in 1881. There was a finding by the United States Senate in 1859, and $250,000 was paid on that finding. Mr. Post. You concede that 10,000,000 acres in Mississippi be- longed to all the Choctaw Indians ? Mr. Hurley. Undoubtedly. Mr. Post. That land belonged as well to the Indians who remained in Mississippi as those who moved to Oklahoma ? Mr. Hurley. It most certainly did. Mr. Post. If the scrip which was issued and the land which was not allotted in Mississippi did not cover all the Indians, then those who were not provided for by the scrip allotted would have a strong equity in the judgment which was rendered ? Mr. Hurley. Yes, sir ; if there were any such Indians. Mr. Ballinger. You do not deny that ? Mr. Hurley. Yes, sir ; I do. Mr. Post. That is the point I want to get at. Mr. Bond. Mr. Post has just suggested that a certain class of Indians would have an equity in this judgment, and. I would like to state my views to the committee with reference to that matter. The judgment rendered in the case of the Choctaw Nation against the United States was a judgment rendered for various different Mr! Post. The bulk of it was made up of the 10,000,000 acres of land? Mr. Bond. That was the principal part of the judgment. The Choctaw Nation under the law would be considered, in my judgment, 212 ENROLLMENT IN THE FIVE CIVILIZED TBIBBS. as trustee for the Choctaw individuals. The entire judgment was paid over to the Choctaw Nation, and the Choctaw Nation estab- lished a court of claims and agreed to pay the money out to the proper claimants — no particular amount— but whatever amount of the entire judgment belonged to any particular claimant it became the duty of the Choctaw Nation to satisfy those claimants from this judgment. Mr. Post. As I understand Mr. Hurley, they limited the right of the claimant to the fact whether or not he had removed to Oklahoma ? Mr. Bond. Mr. Hurley is correct. As I understand the judgment, there is no particular limitation, save as to citizenship. The judg- ment is made up of different items, and the entire judgment was paid over to the Choctaw Nation for the purpose of distributing it to the proper claimants; and under the terms of the judgment it could be easily determined what funds the nation was entitled to and what funds should go to the particular claimants. If the Choc- taw Nation did not pay the particular claimants the money they were entitled to, I think those claimants would have a right to sue the Choctaw Nation for those particular funds which they did not re- ceive. Mr. Carter. You mean they should have the right ? Mr. Bond. They should have had the right. I do not know whether they have slept on their rights or not. I do not know whether they have the right now, but they have not a right by reason of failure to receive a portion of these funds to ask for citizenship in the Choctaw Nation, because theirs would be an action against the Choctaw Nation for moneys had and received and not an action for citizenship. Mr. Post. Do you concede that the 10,000,000 acres belonged as well to the Mississippi Choctaws east and west? Mr. Bond. I do not concede that the 10,000,000 acres belonged to the Choctaws east and west, because the Choctaws east under the fourteenth article had taken up some of the 10,000,000 acres. I con- cede that the balance belonged^ to the tribe as a whole. Mr. Post. If this judgment was paid to the Choctaw Nation in Oklahoma and they did not distribute to the Choctaws east their proportionate share, do you not think they would have a strong equity against the Choctaw Nation for their share ? Mr. Bond. They may have a right of action against the Choctaw Nation for their share of the moneys ; yes, sir ; but not an action for citizenship in the Choctaw Tribe. It is my judgment, however, that all lands save the reservations under the treaty belonged to the tribe as a whole, and that removal and tribal citizenship is essential to an interest in tribal lands. Mr. Post. Well, do you concede that the Choctaws east of the Mis- sissippi Ei^ er were not compensated in the way of scrip for their interest in this land? Mr. Ballinger. No, sir; I do not concede that. Mr. Post. You think they were not? Mr. Ballinger. A part of the Choctaws east were compensated in scrip for the lands that they were to receive under the fourteenth article of the treaty, but a large part of them never received scrip, and all of them who remained in Mississippi were denied any par- ticipation in the division of the funds derived from the judgment of KNHOl.I.MENT IK THE FIVE CIVILIZED TKIBES. 213 the court in Choctaw Nation v. United States, a clear denial of a legal right. Mr. Post. That was compensated for afterwards bv this judg- ment for $872,000? . J a Mr. Ballingee. Yes, sir. Mr. Bond. And in that compensation it became the duty of the Choctaw Nation to pay these people that part of the judgment or any other part of the judgment that they were entitled to; and if said nation did not do it, then the Mississippi Choctaws east should have had an action against the nation in law for moneys due and re- ceived under the judgment, but they would not be entitled to main- tain an action against them now for citizenship in the tribe. Mr. Ballingee. Mr. Chairman, in reference to the distribution of that judgment, there have been some very grave charges made as to whether or not any considerable number of the actual beneficiaries entitled to share in that judgment did participate in the distribution thereof. Mr. Post. Some one has made the statement here that about 1,200 of these Indians never received either scrip or any part of the judg- ment for $872,000. Mr. Ballingee. I think there is a much larger number than that that never received scrip nor participated in any way in the distribu- tion of that judgment. But, as I stated a few moments ago, I want to keep away, if I can, from these collateral issues. There is no question but what the Mississippi Choctaw who did not receive land in Mississippi under the treaty of 1830, or scrip in lieu thereof, was entitled to share in the distribution of that judgment, regardless of whether he removed to the Choctaw Nation. Removal had no bear- ing whatever upon his rights. Mr. Post. I think that is apparent. Now, if his rights have not been foreclosed, he has an equity somewhere, has he not? Mr. Ballingee. The doctrine of limitations never applies to the Indian. The courts have so held, and his rights never become ex- tinct. Mr. Post. Because he is under disability ? Mr. Ballingee. Because he is under disability ; and as long as he remains under disability no statute of limitations or legal bars can be invoked to defeat his rights. Mr. HuBLET. What was the disability of the Mississippi Choctaws during all those years? Mr. Ballingee. They were members of the Choctaw Tribe in 1830, and participated in that treaty. They were then the wards of the Government, and the Government has never released that guardian- ship, and they are to-day in all respects the wards of the Nation, because they are full-blood Indians and have never been released from such guardianship. , ^ . , „ ^, ^ , Mr. Caetee. But, Mr. Ballinger, has the United btates attempted in any way to exercise guardianship over them ? Mr. Ballingee. I .am coming to those questions, Mr. Carter. Me. Caetee. I wish you would discuss this question of citizenship. Mr. Ballingee. I am going to deal with each one of these ques- tions and if counsel will wait until I have finished the particular subject that I am dealing with, I think I will save many questions which they are now asking. 214 ENEOLLMBNT IN THE FIVE CIVILIZED TKIBES. By this treaty — the treaty of 1820 — under which the Choctaws obtained title to these lands, the only Indians within the contempla- tion of the treaty to be transported west were "those who live by hunting and fishing and will not work." Will anj'one contend seri- ously that the western lands became under this treaty the absolute property of those Indians only who " live by hunting and will not work " ? While the western lands were acquired primarily for their benefit, they were, in fact and law, the property of the Choctaw Tribe, embracing all the Choctaw Indians then living in Mississippi. Between 1820 and 1830 conditions changed. The white people of Mississippi demanded more land. An effort was made to extend the State laws over the Indians and to enforce them in the State courts, which led to bitter controversy and actual physical strife. The United States was appealed to to protect the Indians against this unjust assumption of power by the State. It then became apparent that in order to put an end to this unhappy condition all those Choc- taws who would not accept an allotment in severalty and acknowl- edge obedience to the laws of the State must be removed. To effectuate this the treaty of 1830 was entered into, as will appear from an examination of the preamble to the treaty, which reads : Whereas tbe General Assembly of tlie State of Mississippi has extended the laws of said State to persons and property within the chartered limits of the same, and the President of the United States has said that he can not protect the Choctaw people from the operation of these laws; now, therefore, that the Choctaw may live under their own laws in peace with the United States and the State of Mississippi, they have determined to sell their lands east of the Mississippi and have accordingly agreed to the following articles of treaty. The title to the western lands having been secured under the treaty of 1820, in consideration for the cession of a small part only of their lands in Mississippi, the treaty of 1830 has no bearing upon the present controversy, except so far as it relates to the question of removal. The provisions relating to removal are found in the third and fourteenth articles. By the third article it was provided : In consideration of the provisions contained in the several articles of this treaty, the Choctaw Nation of Indians consent and hereby cede to the United States the entire country they own and possess east of the Mississippi Eiver, and they agree to remove beyond the Mississippi River as early as practicable, and will so arrange their removal that as many as possible of their people, not exceeding one-half of the whole number, shall depart during the falls of 1831 and 1832, the residue to follow during the succeeding fall of 1833 ; a better op- iwrtunity in this manner will be afforded the Government to extend to them the facilities and comforts which it is desirable should be extended in convey- ing them to their new homes. By article 14 each Choctaw head of a family who desired to re- main and become a citizen of the State was permitted to do so by signifying his intention to the agent within six months after the ratification of the treaty, which entitled him to a grant of one section of land, and likewise entitled each of his unmarried children over 10 years of age to a grant of a half section and each child under 10 years of age to a grant of a quarter section" of land. It will be observed by article 3 of the treaty of 1830 it was agreed thnt one-half of the Choctaws would remove to the western reserve in the falls of 1831 and 1832, and the residue would follow during the succeeding fall of 1833. No provision was made for forfeiture of their right in the western reserve by failure to remove by the. fall ENEOLLMENT IN THE FIVE CIVILIZED TEIBES. 215 of 1833, or at any other time. And this is very important. You will not find a provision in any law of Congress down to the act of July 1, 1902, that operated as a forfeiture unless the Indian removed within a certain time. There being no time limit fixed in the treaty in which the Choctaw was to remove under penaltj^ of forfeiture or a right in the western lands, I attach no particular importance to the provision contained in article 14 of the treaty, that is : Persons who claim under this article shall not lose the privilege of a Choctaw citizen, but if they ever remove are not to be entitled to any portion of the Choctaw annuity — except that it was in the nature of a specific assurance that those who remained and took land under this article of the treaty should not be denied the right seciired to all Choctaws under the third article to remove to the western reserve at a later date and become a part of the citizenship of the nation with all the rights, privileges, and immunities of any other citizen of the tribe, except the right to share in the Choctaw annuity. Mr. Carter. According to that statement you say that they had to remove ? Mr. Ballingee. I concede that removal was necessary. Mr. Carter. And was a condition precedent to citizenship in the nation ? Mr. Ballingee. Yes; and I am going to deal squarely with that proposition. Those who ejected to take allotments of land in Mis- sissippi waived only their right to thereafter share in the Choctaw annuity, a small sum paid annually by the Government to the Choc- taws and arising out of cessions of land previously made by the Choc- taws to the United States. Mr. Post. What was that annuity, $20,000 a year ? Mr. Ballinger. I think about that. Mr. Carter. In that you differ from the other gentlemen who have appeared here. Mr. Ballinger. I think I do. I think I stand alone in my posir tion. It was not in any sense a waiver of their right to enjoy with all other Choctaws the usufruct of the western lands, provided only that they at any time removed thereto, and at that time there was no thought of a division of the western lands in severalty. Those lands had been set aside as a common home for all Choctaws. Nor was there any possible waiver of their right to participate equally with all other Choctaws in the proceeds later derived from the sale of their lands in Mississippi ceded by the treaty of JSSO. Therefore all discussion as to whether they did or did not receive lands m Mis- sissippi under the treaty of 1830 is wholly irrelevant to the question now before your committee for consideration and decision; that is, are the Mississippi Choctaws entitled to participate in the division of the western estate ? And that is the question before the committee. This controversy has arisen by the failure of the United States to, by the treaty of 1830 or any other treaty or law of Congress, prescribe a definite time limit in which removal should be effected which was reasonable and with which the Mississippi Choctaws could by reasonable effort comply. This was a question for the United States in furtherance of its policy in dealing with its wards 216 ENROLLMENT IN THE EIVE CIVILIZED TKIBES. alone to decide. It was a question in which the Choctaw Nation had no voice and no right to be heard. The Choctaw Nation could sus- tain no injury by the failure of these Indians to remove within a certain fixed period. On the other hand their failure to remove inured immeasurable to the pecuniary benefit of those who did re- move, and who for nearly a hundred years enjoyed a complete monopoly of the usufruct of this estate. But if the situation was otherwise, the Choctaw Nation by its own treaties, its own laws, and its long-continued acquiescence in a governmental, policy is estopped by every known rule of law from asserting an objection at this time. Mr. J. W. Howell, in an exhaustive report to the Secretary of the Interior, dated March 3, 1909, says, with reference to the pohcy of the United States and the Choctaw Nation, relative to the removal of the Choctaw Indians to the western reserve Mr. Post (interposing). Wouldn't your position drive you to this conclusion, that in order for Congress to grant any relief you would have to move all these Choctaws out to Oklahoma ? Mr. Ballinger. No ; I think not. I think the question of removal was a question solely for the Government alone to decide in further- ance of its policy in dealing with its wards. And the Government has now sold and disposed of all the lands so that there is no place to remove them, and the only thing it can do now is to compensate them either in money or to buj' homes for them somewhere else and place them on them. Now, Mr. Howell says [reading] : Conditions were sucli that the United States was unable to remove the people from east of the Mississippi within the time contemplated by said treaty .of 1830. Moreover, oircumstances surrounding the Choctaw people were such as to render removal within the time stated a physical impossibility. The work of transporting the Choctaws, however, was carried on by the United States from year to year for many years after syid treaty. These people were transported West at the expense of the Government even after the year 1850. Others removed at their own expense subsequent to that date, but the cost of their removal was ultimately paid by the United States. The attitude of the Choctaw Nation, as set forth in this law, was for many years to welcome all Choctaws who had been members of the tribe in Mississippi, together with their descendants. Illustrative of this attitude is the Choctaw act of October 19, 1836, which provided that no persons belonging to any tribe of Indians or people, not a descendant of Choctaws, should be permitted to settle in the nation or purchase any improvement of any citizen or citizens of the nation, unless by permission from the general council. By this act the Choctaw Nation impliedly consented to the removal of Choctaw Indians to the Choctaw Nation in the Indian Territotry, and to make their settlement therein with the right to improve the land and to make homes for themselves and their children. The Choctaw act of October 14, 1847, provided that all the new and late emigrant Choctaws to. the land should have equal rights with the late settlers in participation in the schools of the nation. Here, again, after a lapse of 11 years, the Choctaw Nation evidenced the same spirit toward the absentee Choctaws. The right of Indians of blood to reafEliate with the tribe is further evidenced by Article XVII of the treaty of 1866 (14 Stat., 769). Therein provision was made for newspaper publication of notice in six States of the nation to the end — "that such Choctaws and Chickasaws as yet remained outside of the Choctaw and Chickasaw Nations may be informed and have opportunity to exercise the rights hereby given to resident Choctaws and Chickasaws." By act of December 4, 1889, the Choctaw Nation requested the United States Government to make provision for the removal of certain Choctaws to the Indian Territory. ENROLLMENT IN THE FIVE CIVILIZED TRIBES. 217 This resolution reads as follows : " Wliereus tliei-e are large numbers of Clioctawa yet in the States of Mis- sissippi 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." These different acts indicate that the Choctaw Nation recognized uniformly and over a long period of time the right of descendants of the Choct-iw people to remove to the Choctaw Nation West and to reaffiliate with the tribe, and, upon so doing, to enjoy all the provileges of other members of the nation. Their right to do so was recognized, impliedly at least, in the Curtis Act of June 28, 189S (30 Stat, 495), for it provided in section 21 thereof as follows: " No person shall be enrolled who has not heretofore removed to and in good faith settled in the nation in which he claims citizenship: Provided, however, That nothing contained in this act shall be so construed as to mili- tate against any rights or privileges which the Mississippi Choctaws may have under the laws of or the treaties with the United States." Mr. Cab-ter. I want to see if we can get all the attorneys to agree on this point ; that there never was any attempt by the Choctaw In- dians to deny citizenship with all its immunities and privileges to any Choctaw who moved to the Choctaw Nation in Oklahoma. Is or is that not true, Mr. Ballinger? Mr. Ballinger. That is substantially true, except that upon re- moval under the Choctaw law the Mississippi Choctaw was required under Choctaw law to apply to the. Choctaw Council, and upon the payment of $100 per applicant was enrolled on the citizenship rolls of the tribe. With the majority of the Mississippi Choctaws this payment exacted rendered it impossible for him to secure enrollment. Mr. Carter. That is true, is it not, Mr. Kichardson ? Mr. EiCHARDSON. It is true, I think. At one time I think the law required them to pay $100 a head for the privilege. Mr. Carter. For enrollment ? Mr. EicHARDSON. Yes; before they were enrolled they had to pay $100 a head. Mr. Carter. Perhaps, Mr. Eichardson, that might have been done to prevent taking up time with fraudulent claimants who really had no claim. I can see some reason for that. Do you agree to that, Mr. Arnold ? Mr. Arnold. Well, it was the rule under the Choctaw law that any- one who desired to be admitted as a citizen had to apply to the Choc- taw Council. Mr. Carter. The thing I want to understand now is this, was the disposition on the part of the Choctaw Nation to accept a Mississippi Choctaw for enrollment and full benefit with the tibe, if he came to the Choctaw Nation prior to the commencement of the allotment of lands ? Mr. Arnold. Yes, sir. Mr. Carter. 1898 was when the tribe agreed to allotment. Mr. Ballinger. They continued it up to about 1893 or 1894, at which time the agitation commenced for the division of the lands in severalty, and then the bars were thrown up against them. Mr. Carter. What do you think about that proposition, Mr. Har- rison ? 218 ENROLLMENT IN THE FIVE CIVILIZED TEIBES. Mr. Habkison. My idea about it is that the Indians in Oklahoma were always willing for those who would come from Mississippi and be enrolled, that they were welcome in Oklahoma, but there were many cases where they went to Oklahoma and tried to get on the rolls, but where the attorneys of the tribe in some way or other prevented them from getting on the rolls. Mr. Carter. I am speaking of the time before allotment began. The attorneys never attempted that prior to that time, did they ? Mr. Harrison. I think most of it was along in 1898 to 1902, along in there, when the firm of Mansfield, McMurray, & Cornish were attorneys for the tribe. Mr. Carter. The attorneys you have in mind were not attorneys for the tribe until after proceedings began for allotment. Mr. Harrison. It was along about that time. My idea about this article 14 is that that was a special article, and that if they did not want to come within that, or if they did not comply with that within six months, then after the six months had elapsed they could go and would have been welcome. Mr. Carter. Yes; I understand that. What I want now is to get an agreement of facts as much as possible. There is such a wide divergence that it is necessary to reconcile the facts as much as pos- sible as we go along. Is that your idea, Mr. Sullivan ? Mr. Sullivan. Yes; that is my idea of it. I believe that they have always been welcome, with the exception of the requirement stated by Mr. Eichardson. On the 27th of September, 1902, they voted to allow six people who went there in 1893 to participate in the allotment. Mr. Carter. 'What do you say about that, Mr. Hurley? Mr. Hurley. We believe that the Choctaw Nation not only granted citizenship to all Choctaws from Mississippi who went to the Territory before the closing of the rolls, but I can cite 20 in- stances where the Choctaw Council appropriated money for people who came there too late to make a crop in the year in which they came, and were in straitened circumstances, to tide them over un- til the next spring. I have a list of those cases here. I also have some cases where they appropriated money for the transportation of Mississippi Choctaws from Mississippi to the Choctaw Nation. Thej' ofiered every convenience that could be offered to get those who remained East to come to the Indian Territory and establish citi- zenship there. I disagree, however, with Mr. Ballinger that the Choctaw Na- tion, after having advertised, as he says, through six Southern States to bring Indians to the Territory, that they did not place any limitation upon the time within which they could come and enjoy the rights of citi.'^enship. The Choctaw Nation had, before the final closing of the rolls, placed a bar against the admission of any other persons to citizenship unless they presented their applica- tion within a specified time. And that act is found in the laws of the general council of the Choctaw Nation, passed at its regular session in the year 1895, bill No. 2. Mr. Post. What page is that? Mr. HttrIiEY. Page 35 of my brief you have in your hand. KNROLLMENT IN IHBFIVE CIVILIZED TKIBEri. 219 Mr. Carter. What we are trying to do now is simply to get an agreement as to that one point. You can put those things right in along with your remarks in your own time. Mr. Hub LET. Yes; but I would like to put that in the record now. Mr. Carper. Well, if Mr. Ballinger has no objection it can go in here. Mr. Ballinger. I would prefer to loiow what is being inserted in my remarks, and I would prefer that they put those references and citations in in their own agreement. I do not know what may be put in, and when my argument is printed with such insertions it may appear absolutely absurd. Mr._ Carter. Suppose you withhold these things, then, and put them in your remarks. I think it is fair to counsel on both sides not to have these things interpolated in their remarks unless opposing counsel can agree upon it. Mr. HcRLEY. Well, I was asked the question whether or not we agreed with Mr. Ballinger in his statement, and I wanted to show, the reason why we did not. I purposely refrained from reading anything into the record during his argument unless I requested to do so. Mr. Ballinger. Of course Mr. Hurley can state his position. Mr. Hurley. I have not given any reason for the position I have taken in the matter, and I wanted to cite that provision passed by the Choctaw Council, and also the decision of the Supreme Court of the United States in the case of Eastern Band of Cherokees v. The United States (117 U. S., 288). Mr. Carter. Now, then, you gentlemen are all agreed on that one point, to wit,, that there was no objection on the part of the Choctaw Nation to the enrollment and giving of full citizenship to the Mis- sissippi Choctaws up to the time that the closing of the rolls became necessary and allotment began. Now, let me ask Mr. Bond what his notion about it is. Mr. Bond. It is my understanding that prior to the act of the Choctaw Council closing the rolls against the Mississippi Choctaws that the Choctaw people not only welcomed but invited and solicited the eastern Mississippi Choctaws to come to their nation and make proof of and establish citizenship therein ; that up until the act of the council heretofore referred to they received those who could make due and legal proof with open arms. Mr. Post. After that period, then, they opposed them ? Mr. Bond. After that period they had nothing to do with their en- rollment. The United States Government, under acts of Congress, assumed the authority and jurisdiction of making up the Indian rolls. After that the Mississippi Choctaw was required to make proof before the Commission to the Five Civilized Tribes and not before the Choctaw Council. It is my understanding that they never opposed a Mississippi Choctaw during the enrollment by the Gov- ernment who they thought was duly and legally entitled to citizen- ship in their tribe. Mr. Harrison. You do not mean that the attorneys were willing in all cases, do you ? ,r tt • r Mr. Bond. I am not speaking for the attorneys, Mr. Harrison. 1 am not the keeper of their consciences. I presume, however, that they performed their legal duties as an attorney naturally would. 220 ENROLLMENT IN THE FIVE CIVILIZED TEIBES. Mr. Ballinger. Mr. Chairman, I had supposed, as you stated, that there was no controversy about the attitude of the Choctaw Nation down to the time of the commencement of the division of this property of the nation in severalty, but the United States, as the guardian of iill the Indians, would not be bound by any action of the Choctaw Council. When it came to divide the property it would then be wholly within its power to make such division as it con- sidered equitable and just. And in the division of the property, I take it, the National Government would look to the same Indian it looked to when it commenced the guardianship, namely, to the pro- tection of the ignorant, the weak, and those incapable of protecting themselves. That is the class of Indians that the National Govern- ment would naturally extend the strong arm of protection to, and that is the class of Indians that it failed to protect and that it ignored to a large extent when it came to the division of the property. Eeturning to my argument at the point where I was interrupted, it is unnecessary for me to dwell upon the barbarous and inhumane treatment of the Choctaw Indian who remained in Mississippi and attempted to avail himself of the privileges of the fourteenth article of the treaty of 1830 by the United States Indian Agent Ward. It is enough to say that the treatment of these Indians by the agent of the United States alone is sufficient to place responsibility upon the United States to properly care for them, even at this late day. This, together with the utter al aiulonment of these helpless wards of the Nation for a period of nearly 80 years, during which they have been left in ignorance and poverty, should be a sufficient appeal to the conscience of Congress to accord relief to at least the more helpless class. It has been asserted with great emphasis during the course of this discussion that the Choctaw remaining in Mississippi thereby be- came a citizen of that State and therefore necessarily expatriated and abjured his allegiance to the Choctaw Nation, and thereafter ceased to be one of its citizens or a ward of the Government. This reasoning, while pleasing to the ear, is wholly unsound in principle. The Indian who remained in Mississippi under the treaty of 1830 did not expatriate or abjure his citizenship in the Choctaw Nation. Citizenship in that nation was a right he could freely enjoy by mere removal to the western reserve at any time. This has been aclmowledged by the repeated acts of Congress, of June 7, 1897; June 28, 1898; May 31, 1900; and July 1, 1902. In Tiger v. Western Investment Co. (2*21 U. S., 311) the court said upon the question of governmental supervision over the person and property of the In- dian of the Five Civilized Tribes who had been by the laws of Con- gress declared a citizen of the United States : Citizenship, it is contendecl, was conferred upon the Creek Indians by the act of March 3, 1901 (31 Stat, at L., 1447, chap. 868), amending the act of February 8, 1887 (24 Stat, at L., 390, chap. 119), by adding to the Indians given citizenship under that act, " every Indian in the Indian Territory." So amended the act would read as to such Indian : " He is hereby declared to be a citizen of the United States, and entitled to all the rights, privileges, and immunities of such citizen." Is there anything incompatible with such citizen- ship in the continued control of Congress over the lands of the Indian? Does the fact of citizenship necessarily end the duty or power of Congress to act in the Indian's behalf? Certain aspects of the question have already been settled by decisions of this court. That Congress has full power to legislate concerning the tribal ENKOLLMENT IN THE FIVE CIVILIZED TPJBES. 221 property of the Indians has been fregviently affirmed. (Cherokee Nation v. Hitchcock, 187 U. S., 294, 308; 47 L. ed., 1S3, 190; 23 Sup. Ct. Rep., 115. United States V. Eicket, 188 U. S., 432; 47 L. ed., 532; 23 Sup. Ct. Rep., 478. McKay v. Knlyton, 204 U. S., 458; 51 L. ed., 566; 27 Sup. Ct. Rep., 346.) Nor has citizenship prevented the Congress of the United States from con- tinuing to deal with the tribal lands of the Indians. ^ IK ii: « « 4( * The privileges and immunities of Federal citizenship have never been held to prevent governmental authority from placing such restraints upon the con- duct or property of citizens as is necessary for the general good. Incompetent persons, though citizens, may not have the full right to control their persons tind property. The privileges and immunities of citizenship were said, in the Slaughter-House Cases, 16 M'^all. 36, 76 ; 21 L. ed., 194, 408, to comprehend : " Protection by the Government, with the right to acquire and possess ))roperty of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the Government may prescribe for the general good of the whole." Conceding that Marchie Tiger, by the act conferring citizenship, obtained a status which gnve him certain civil and political rights, inhering in the privi- leges and immunities of such citizenship, unnecessary to here discuss, he was Btill a ward of the Nation so far as the alienation of these lands was concerned, and a member of the existing Creek Nation." Mr. Carter. Now, Mr. Ballinger, will you tell me what act it was that made the Mississippi Choctaws citizens of the United States — the first act? Mr. Ballinger. I can tell you what act made them citizens of the State of Mississippi, but I can not tell you what act made them citi- zens of the United States. I doubt whether they are to-day citizens of the United States, as I know no law of Congress by which they were made citizens of the United States. By the treaty of 1830 it was clearly intended that those Indians who took allotments in severalty and remained in Mississippi should be amenable to the State laws, and in order to do that it was neces- sary to make them citizens of that State, but the treaty did not pro- vide that they should become citizens of the United States. Mr. Carter. Well, did not all of these Indians who remained in Mississippi become in practice amenable to the State laws, whether they took allotments or not? Mr. Ballinger. That is true. Mr. Carter. Whether they came under this treaty of 1830 or not? Mr. Ballinger. That is true. Mr. Carter. Now, when they relinquished their tribal government in Mississippi and came under the supervision of the State laws of Mississippi was there any attitude or capacity of guardianship re- tained by the United States ? Mr. Ballinger. Why, I think so. Mr. Carter. In what respect? Mr. Ballinger. In this respect, that the Government still retained its control over the western lands in which they had a right to par- ticipate. The guardianship of the United States did not extend to the person of the Indian who remained in Mississippi, but it extended to his property right in the western reserve, and that has always continued. ,. » t Mr Carter. But my understanding of your earlier argument was that the Indian who remained in Mississippi, unless he removed to Oklahoma, had no interest in that property. Mr Ballinger. Why, Mr. Carter, that is precisely my position. Let me go just one step further. My position is also that while 222 EjSmOLLMENT IN THE FIVE CIVILIZED TEIBBS. removal was necessary, there was no time limit fixed, and, as the Government has never fixed a definite period in which removal should be effected or forfeiture of the right declared, that the Indian was not bound by it. Mr. Caetee. That is not the question I am directing my inquiries to. The Indian who remained in Mississippi, according to your statement, had rights in the Indian Territory, provided he removed to and resided on the reservation. Now, then, what capacity of guar- dianship did the United States hold over that Indian unless he did remove? In other words, didn't the capacity of guardianship cease, so far as the Indian in Mississippi was concerned, until he did remove and establish relations Vidth the Indians in Indian Territory? Mr. Ballingee. I think not; and I am going to give j'ou an illus- tration by citing the Indians in the Choctaw and Chickasaw Nations. The Government of the United States has no guardianship or control over the person of the full-blood Indian in Oklahoma to-day, but it has absolute control over the property of the Indian. Mr. Caetee. The Government assumes full control of their schools ; they assume personal guardianship over the child to the extent of making him attend school, in so far as they can, and in supervising him when he is in school. Mr. Ballingek. I think your qualification is very apt — " in so f ai as they can." I know of no law by which the Government of the United States is attempting to exercise guardianship over the person of any full-blood Indian in Oklahoma to-day. Mr. Caetee. I suspect the people of Oklahoma would not agree with you on that. Mr. Ballingee. I think I am correct. I know of no attempt on the part of the Government to exercise control over the person of any full-blood Indian. Mr. Caetee. The Federal Government has agents who travel over the Choctaw and Chickasaw Nations for the purpose of taking chil- dren and placing them in schools and keeping them in the schools. Now, that clearlj', to my mind, is an evidence of guardianship — per- sonal guardianship. Mr. Ballingee. I know of no law, Mr. Carter, under which the Government officer could go and take one of the children of the Choctaws and place them in school. That must be with the con- sent of the parents. Mr. Caetee. I am speaking about the actual practice now, Mr. Ballinger. It is done, I dare say, in many instances without the consent of the parents. Mr. Ballingee. Of course, I am not speaking of illegal acts. If acts of that kind are committed, I say they are committed without authority of law. Mr. Caetee. The point T want to. get at is this : Prior to the treaty of 1830 evidently the Federal Government did assume full control and guardianship over all the property of the Choctaws in Missis- sippi, and I prei^nnie it would have prevented them from selling any part of their tribal domain to any person. But when that tribal government in Mississippi was abolished and the tribal government established in Indian Territory, then all attempts at restricting them in the sale of any of their property, all attempts at establish- ing schools and keeping them in schools seems to have been aban- ENEOLLMBNT IN THE FIVE CIVILIZED TEIBES. 223 doned. So that it does not seem to me, even from what you have said, that any recent relation of guardianship to those people actu- ally existed. Mr. Ballinger. Mr. Carter, there has been practically no change in the governmental policy in dealing with the Indian when he was in Mississippi and when he removed to Oklahoma. Mr. Post. Can you cite any instance, Mr. Ballinger, after the treaty of 1830, where the Government exercised any guardianship over Indians who remained in Mississippi, either over person or property ? Mr. Ballinger. Yes; under the very terms of the treaty by which the Indians received lands in Mississippi — those who were fortunate enough to get them — the Government held the restriction over those lands. Mr. Httrley. For how long a period? Mr. Ballikger. For the period named in the treaty. Mr. Hurley. How long was that period? Mr. Ballinger. Five years, in most instances. Mr. Carter. We have a clear distinction with the Indians in Oklahoma now. When the jurisdiction of their courts and councils were abolished their actual tribal existence must have ceased, yet the Government retained guardianship over them. I do not contend that the Government has not the right to go back and take guardianship over the Mississippi Choctaws now, but the thing I am trying to find out is what relationship or guardianship the Government re- tained over the Indians in Mississippi after they began to put into effect the treaty of 1830. Has there ever been any attempt by the Government to assert any guardianship over those people — any policy of guardianship or protection over them since that time — any further than to get them in Oklahoma, where they can become guardians in fact? Mr. Ballinger. I think you are correct about that, and I will ex- plain how that came about. The attempt of the Government in 1830 was to force removal. The continued policy of the Government was to force removal, and in aid of that policy all aid to the Indian in Mississippi was withheld, and the aid was given to him when he went to Oklahoma. But the Government at all times exercised its control over the tribal property in which the Mississippi Choctaw had an undivided interest. Now, Mr. Chairman, you spoke about a case in which an Indian may have a part of his property unrestricted and part of his prop- erty restricted. You have that very condition in Oklahoma. Mr. Post. That is not relinquishment of guardianship, is it? Mr. Ballinger. It is a release of gtiardianship, so far as one-half of his land is concerned. Mr. Carter. But so long as they retained restrictions of any char- acter, the condition of guardianship and ward exists, does it not? Mr Ballinger. Yes ; and that very condition has existed since 1830 with reference to the Mississippi Choctaw, the United States at all times since 1830 having retained control over the property in Okla- homa in which he had an interest. Mr. Carter. Then, let us put it this way : Your contention is that the Indian in Mississippi had no rights in the estate in Oklahoma unless he removed to and affiliated with the tribe; consequently the 224 ENROLLMENT IN THE FIVE CIVILIZED TEIBES. relation of guardian and ward could not exist unless that Indian re- moved. Doesn't that follow ? Mr. Ballinger. Not at all. Mr. Carter. What is your explanation about it ? Mr. Ballinger. My explanation is that the land in Oklahoma is and always has been held as a common home for all Choctaw Indians. You spoke a. few moments ago about the Choctaw buying and sell- ing land within the Choctaw Nation. He bought and sold only a possessory right, the right to enjoy the usufruct of the soil. No pre- tense was ever made that he ever passed title to the land, for the land was held for the common benefit of all — not only those in Oklahoma, but those in Mississippi. It was held by the Government, immune from sale or encumbrance of title. Mr Carter. Just a moment there. The Indian in Mississippi, ac- cording to your contention, could not assert, could not enjoy, could not claim the rights of any lands in Indian Territory unless he re- moved from Mississippi. The thing I do not understand is how is it that so long as the Federal Government did not consider this Indian in Mississippi a participant, an owner of a part of the tribal estate in Indian Territory until he removed there, how, then, could the Federal Government have any claim of guardianship over him until he did remove? Mr. Ballinger. Mr. Carter, the Government always recognized the right of the Mississippi Choctaw to participate in the division of the western property. Congress, by its legislation, expressly recognized the right of the Mississippi Choctaw to share in the western estate. A^ late as 1902 Congress, by its legislation, recognized their right. Mr. Carter. Yes; upon removal. Mr. Ballinger. It recognized their right to participate in this property upon removal, but the administration of the law prevented the ward of the Government from removing and thus deriving the benefits that Congress intended to confer upon him; and Congress now, knowing the facts, knowing that it ward was by its own agents prevented from obtaining the property it intended to confer upon him, can now do justice by its ward by affording him the relief he is asking. Mr. Post. Mr. Ballinger, speaking of this question of citizenship, there is no doubt that the guardianship that the Government exer- cises over the Indians not only applies to his property but to his person, is there '^ For instance, if the Government sets off a reser- vation for an Indian tribe and says, " You go there and stay there," the Government will make them go, will it not ? Mr. Ballinger. That is correct, so far as the Executive order reservation Indian is concerned. Mr. Post. Therefore the guardianship extends to the person as well as to the property of the Indian, does it not ? Mr. Ballinger. That is correct as to the reservation Indian. Mr. Post. Now, I understood you a while ago to say that the Gov- ernment was still the guardian of these Mississippi Choctaws. Mr. Ballinger. Yes, Mr. Post, I did say that, and I want to re- affirm it. Mr. Post. Now, you say the Government is still the guardian ol these Mississippi Choctaws; that is, it is the guardian of their per- son and estate, if they have any? ENBOLLMENT IN THE FIVE CIVILIZED TRIBES. 225 Mr. Ballinger. No, I think not. Mr. Post. And if that is true could not the Government go down there and say, " You move yourselves out to Oklahoma, and if you do not move out we will send the army down there and take you up and put you in Oklahoma?" Mr. Ballinger. I am not certain but what Congress could exercise that power, but I am not going that far. Mr. Post. Now we will follow that a little further. Would you not be met with this proposition when the Government undertook to exercise its right of guardianship to go down to Mississippi and take hold of one of these Indians, would he not go into the courts and procure a writ of habeas corpus, and say, " I am a citizen of the State of Mississippi just as much as the white man. The Govern- ment is not my guardian. Under the treaty of 1830 I elected to become a citizen of the State of Mississippi. I had under that treaty simply the right to renounce my allegiance to the government of Mississippi and join the Choctaw Nation in the Oklahoma Terri- tory " ? _ Mr. Ballinger. Mr. Post, I am going to deal precisely with the situation you describe, citing the acts of Congress and tlie decisions of the courts, but I want to answer your question now as you have put it to me, so that I will not be subject to any charge of dodging. There is a broad distinction between the ordinary reservation Indian Mr. Post (interposing). Were these not reservation Indians before the treaties of 1820 and 1830? Mr. Ballinger. No, sir; they were not what is commonly known as reservation Indians, because by the treaties they were given the power to enact their own laws,- to regulate their own internal affairs; they were a semi-independent nation, subject only to the control of the Federal Government. Mr. Carter. That is the same relation that existed with every tribe originally. It existed with the Sioux, the Shawnees, the Arapa- hoes, the Papagoes, and the Pimas, and ail other Indians. When they were placed upon the reservations the department undertook to look after their health. Just recently — and too late, I think — ^they imder- took to provide schools for them. They undertook to establish certain courts within their reservations, part of them being Indian courts for the trial of minor offenses, and with the Five Civilized Tribes that jurisdiction was given to their tribal government on the reser- vation so far as related to their own citizens. Now, it seems to me, that constituted personal guardianship, because those things were all supervised and looked after by the Federal Government in some capacity or other. Mr. Ballinger. If you will permit me now to answer the question originally propounded to me. As I said before— I am speaking literally now within the decisions of the courts when I say there is a distinction, a broad distinction, between the ordinary reservation Indian — that is, the reservation Indian who was wholly under the control of the Indian agent — and the Indian with the tribe that maintained an independent form of government, subject only to the control of the Federal Government, such as the Choctaws main- tained ; the distinction being this, that the Indian on the reservation 64969—15 ^15 226 ENROLLMENT IN THE FIVE CIVILIZED XEIBBS. subject only to the control of the Indian agent was, in person and in property, subject to the control of the Government. On the reservation or with the tribe, where they maintained their own form of government, his person was subject only to the laws of the tribe. In the Chictaw Tribe in Oklahoma the person was prosecuted crim- inally in the courts of the Choctaw Nation by the Choctaw tribal officials. He was prosecuted and tried in the civil courts of the Choctaw Nation, the Federal Government never attempting to exer- cise any control over his person. With the reservation Indian under the control of the Government agent, if tried at all he was tried in the Federal courts of the Nation having jurisdiction in that locality. Mr. Carter. Well, now, there are different relations of guardian- ship. That is what I take it your argument is directed to ? Mr. Ballinger. Certainly. Mr. Carter. For instance, with the Five Civilized Tribes you have stated the case partially correct. So far as criminal and civil pro- ceedings were concerned between members of the tribe, the tribal courts had jurisdiction, somewhat supervised, however, at times by the Federal Government; and in all controversies arising between the tribe and any white person or noncitizen of the tribe the Federal Government always assumed jurisdiction and did not allow the tribes to take any part in the trial. Mr. Ballinger. When the Government of the United States dis- memliered the tribal government in Oklahoma it was then within the power of the Federal Government to have assimied jurisdiction both of the person and the property of the members of these tribes, but it did not do it. It assumed jurisdiction of the property only and made them citizens of the United States. It has exercised con- trol only of their property ever since. I know of no attempt made to exercise control over the person of the Indian except on the reser- vation, where the agent has complete control, which is not the case with the Choctaw, and the Supreme Court of the United States has recognized the distinction repeatedly. For instance, where the In- dian took an allotment of land in severalty under the general-allot- ment act of 1887, he became a citizen of the United States, and, so far as his person was concerned, he was no longer subject to control by the Federal Government as his guardian, but his property re- mained subject to control by the Federal Government, under the laws enacted by Congress, and that is what the court means when it says in these various decisions that the control of the Government of the Indian's person and property can continue as long as the Govern- ment sees fit and until the Government relinquishes that control. By the general- allotment act of 1887 the Government relinquished its control over his person when he took an allotment in severalty or abandoned his tribal relations. That was a voluntary release on the part of the Government. Mr. Hurley. Mr. Ballinger, in stating your opinion as to the guardianship of the United States Government over the Mississippi Choctaws you cited the Marchie Tiger case. The Indian whose land was involved in the Marchie Tiger case was a citizen of the United States, but the question that the court had to decide in that case, in the language of the court, is this [reading] : Is tliere anything incompatible with such citizenship in the continued control of Congress over the lands of an Indian? ENROLLMENT IN IHE FIVE CIVILIZED TRIBES. 227 That was the question decided by the court.. Now, how do you make such a case as that applicable to people, of Indian blood who are citizens of a State and of the United States with no restricted land or property rights? Mr. Ballinger. The similarity lies in this: That this man Marcha Tiger was an Indian ; he was a citizen of the United States ; his prop- erty, although a citizen of the United States, was still under the con- trol of the Government. The property of the Mississippi Choctaw, while a citizen of the State of Mississippi, was, like Marcha Tiger, under the control of the Government, his property in the western reserve being at all times under the control of the Federal Govern- ment. Mr. HuRUSY. But you have stated yourself that he has no property right in the western reserve ; that he merely had a right of which he might avail himself to move to the Choctaw Nation, and after the establishment of his residence there he might have the right to prop- erty in the tribe. Mr. Ballinger. I have tried to make myself clear on that propo- sition. He had an unlimited right to remove at any time under the terms of the treaty. There was no limitation fixed by which, if he did not remove within the time, forfeiture was declared. Mr. Post. Didn't they declare forfeiture when they wound up the tribal relations of the nation? Mr. Ballinger. No. My contention is that due notice of the di- vision of the property should have been given the Mississippi Choc- taw, and that that notice has never been given him, and therefore his rights were stricken down without his being afforded an opportunity to exercise them. Mr. Carter. That is getting a little aside from the point. Mr. Hurley. Didn't you speak yourself of the different advertise- ments in six different States that the Choctaws should come to the Indian Territory and avail themselves of whatever rights they had under the fourteenth article? Mr. Ballinger. Mr. Hurley, you know that that was a provision in the treaty of 1866. It also contemplated an immediate division of the property, or a part of the property, in severalty. That scheme was never carried out, and therefore has no application to the action of the United States taken 40 years later. Mr. Bond. Mr. Ballinger, did the treaty of 1830 contain a pro- vision providing for notice to the Mississippi Choctaws before the allotment of the lands west ? Mr. Ballinger. No ; it left the question of removal wide open. Mr. Richardson. There was a guaranty against allotment ? Mr. Ballinger. A guaranty that the lands should be held forever in common, or as long as the Choctaw Nation existed as a nation and occupied the land, both of which conditions exist to-day. While they existed, under the terms of the treaty the Mississippi Choctaw could remove at any time, but the right was reserved to them to remove at any time while the Choctaw Nation existed and the Choctaws hved on the land, which would permit them to remove to-day, and they are only barred from doing so by subsequent laws of Congress. Mr Bond. It was conveyed to the Choctaw Nation, to them and their descendants, so long as they existed as a nation and lived upon it? 228 ENROLLMENT IN THE EIVE ' CIVILIZED TRIBES. Mr. Ballingeb. Yes, sir. Mr. Hurley. The Mississippi Choctaws had never lived upon it. Mr. Bond. Mr. Ballinger, didn't the fourteenth article of the treaty contain a limitation? Did it not use the language, "persons who claim under this article " ? Would not that limit it to the life of per- sons who claimed under that article ? Mr. Ballikgee. I have just stated during the course of my argu- ment that I attached no particular importance to the language that you quote from the fourteenth article. I do not believe that it added to or detracted from the right secured to them under the second and third articles. I think it was merely in the nature of an assur- ance, an additional assurance to that contained in article 3, that if they did remove they should receive equal shares of property in the West. Mr. Bond. Do you not believe, as a general principle of law, that when a statute fixes no definite time for the performance of a certain act, the courts would construe a reasonable time under the circum- stances to be the limitation ? Mr. Ballinger. Not any law dealing with the Indian, a ward of the GoA'ernment. Mr. Post. You claim that the Government foreclosed the rights of the Mississippi Choctaws to move to Oklahoma, because no notice was given. Do you not think the Indians living down in Mississippi and Louisiana — what are designated as Choctaw Indians there — during the 84 years that have transpired, knew generally all the time that if they would move out to Oklahom they would be accorded the rights of citizenship ? Do you not think it was generally under- stood ? Mr. Ballinger. By the more intelligent class. Oh, yes. They were in this position, with this kind of an assurance, " You can re- move at any time and receive equal shares in the western property." And the shares at that time of course merely consisted of the en- joyment of the usufruct of the estate. The question of a division of the estate in severalty had never seriously been considered prior to 1866. At the time the cession was made, guaranties were given the Indians that their government should be preserved practically forever, as long as the Choctaws existed as a nation and lived on the lands. Therefore there was no necessity for removal. It was a right that could be enjoyed at any time. Mr. Carter. Now, going back to the question of guardianship, , here is something that bears on it. Here is a letter from Acting Sec- retary Adams, dated March 4, 1912, in response to a bill which I had referred to him, to see if homes could not be provided for these Mississippi Choctaws at some place. Mr. Harrison. When was that letter written ? Mr. Caei'er. March 4, 1912. I quote from his letter [reading] : Referring to Mississippi Choctnw Indians as a class now remaining in Mis- sissippi, you are aclvisecl that they are descendants of ancestors who under the several sections of the treaty of 1S30 received land in Mississippi or scrip In lieu thereof and became citizens of the State. As citizens of the United States they are entitled, so far as the public lands of the United States are concerned, to the benefits of the homestead and public-land laws of the United States. It can be seen from the above that many of the Indians themselves had op- portunity offered them to remove to Oklahoma and obtain land in the Choctaw Nation, and further that those now remaininsr in Mississippi are citizens of the United States, entitled to the benefits of the homestead laws of the United BNEOLLMENT IN THE FIVE CIVILIZED TEIBES. 229 States. The department sees no necessity, therefore, for making further pro- vision, as contemplated by H. R. 4717, for said Indians residing in Mississippi. I just read that as bearing on the question of citizenship and guardianship. Mr. Ballingee. I think the letter displays the ignorance of its author. It seems to me, however, that that is absolutely foreign to the question here. Mr. Carter. No; the thing I was trying to ascertain was how your contention that the Indian had no right in the Choctaw IS ation in Indian Territory, until he moved there, could conform to your statement that he was a ward in the State of Mississippi. Mr. Ballingee. The Indian in Mississippi acquired an interest by the treaty of 1820 in the western property. While he has been a citizen of the State of Mississippi the Government has retained its control over his property. Mr. Caetee. Now, this is the view that presents itself to me. So long as the Choctaw Indian remained in Mississippi he denied or abandoned any rights as a ward of the Federal Government, which right could be reestablished at any time that he moved and connected himself with the tribe, the members of which were wards of the Gov- ernment. Mr. Ballingee. Well, that is not my understanding exactly of his status. He remained in Mississippi with the specific guaranty and assurance that he could remove at any time. Mr. Carter. And reestablish the relationship of guardian and ward by the removal. Mr. Ballinger. Not exactly reestablish the relationship of guar- dian and ward, for that at all times existed, but he could remove at any time, and by removal fully mature his inchoate right to parti- cipate in the western property. Now, that is a different proposition. Mr. Carter. Now just let me ask this — and I think this ought to settle it — what rights of guardianship were exercised by the United States Government over Choctaws in Mississippi? Mr. Ballingee. None whatever. Mr. Carter. That is what I wanted to Imow. Mr. Ballinger. Nor were any rights of guardianship asserted by the Federal Government over the Indian in the Choctaw Nation in Oklahoma. Mr. Carter. You say no rights of guardianship ? Mr. Ballinger. No rights of guardianship over the person of the individual were asserted over the Choctaw in the Choctaw Nati(m West. Mr. Carter. Well, we have been all over that, and it has been ad- mitted that he subjected himself to the supervision of the Indian agent, who in the last analysis settled disputes even between members of the tribe, going to the extent in some instances of placing people on the rolls and declaring them members of the tribe, whom the tribe had denied. ,. . , Mr. Ballinger. The very question that you are discussing here now has been the subject of reports made by the Senate committee in 1894 and 1895, in which they deal with the very proposition of the jurisdiction of your tribal and your Federal courts. Let me go one step further. Putting an Indian's name or a person's name on a Choctaw tribal roll would give the tribal court jurisdiction of his 230 ENROLLMENT IN THE FIVE CIVILIZED TBIBES. case in a criminal or civil proceeding. Striking his name off of the roll gave the Federal court jurisdiction in a criminal or civil pro- ceeding. And the jurisdiction of those courts was constantly in issue, because of the manipulation of these rolls by the tribal officials. Mr. Carter. I wish you would get me those reports. I would like to inform myself on it, and I wish you would mark the provisions that deal with that. The question is of some consequence, because I presume there is no doubt about the right of the Federal Govern- ment to assume guardianship over any Indian at any time that it desires. They have taken that right in several decisions recently. The thing I was trying to determine was whether the Federal Gov- ernment had neglected its duty as guardian to ward with the Choc- taw Indians ; and, of course, entering into that would be the ques- tion whether the Choctaw Indians in Mississippi were really wards of the Federal Government. Mr. RiciiAiiDSON. I wanted to suggest this in connection wtih the guardianship subject: The courts have held that the relationship of guardian and ward does not flow from any particular tribal affilia- tion, and there is no other record to go on as to whether an Indian may be a citizen of the United States or a member of a tribe. Now, the courts have held, in suits brought under the Indian depredations act, that the Mission Indians of New Mexico did not constitute a tribe, and have dismissed two suits against them. The same is true of the Mission Indians of California. The Mission Indians of New Mexico were formerly citizens of Mexico, but they became citizens of the United States under the treaty of Guadaloupe Hidalgo. At the same time they own their property under grants made by the Mexican Government and are citizens of the United States, but do not constitute a tribe. Congress has assiuned and has exercised the relation of guardianship over these Indians, over "their person and property, because Congress saw the need of it. Mr. Carter. I think the courts have universally held that the Federal Government might assume guardianship over almost any Indian. Isn't that true? Mr. EiCHARDSON. Absolutely true. Mr. Carter. But the question I was directing my inquiries to was whether, as Mr. Ballinger suggests, imder the treaty of 1830 the relationship of guardian and ward did really exist. Mr. Etct-ia-rdson. The second volume of the case of the Choctaw Nation v. The United States shows that for a period of 17 years after the treaty of 1830 the United States department having juris- diction of Indian affairs designated the Choctaw Nation as the Choctaw Nation east and the Choctaw Nation west, as having dif- ferent agencies, and by their agents in Mississippi for 17 years after the treaty of 1830 they exercised guardianship control over these Indians. Mr. Ballinger. These facts, I assume, are conceded by all, that these lands were obtained — that is, the western lands — were obtained under the treaty of 1820 ; that these Mississippi Choctaws now resid- ing in Mississippi, or their ancestors, were entitled to participate in the lands that were ceded to the Government in exchange for the lands in the West ; that the tribe gave up a part of their own prop- erty for these western lands, the title of which passed to the tribe in trust for all the Indians. It was their property — that is, prop- BNEOLLMENT IN THE FIVE CIVILIZED TRIBES. 231 erty in which they had an interest^-that was exchanged for these western lands which were to be held as a common home for all. Now it made no difference whether they removed to that immediately, or when they removed to it. It was their property ; they had paid for the western land, and the question of removal was merely a question of governmental policy and ought not to have been injected into this question years ago by treaties and laws of Congress. Mr. Post. Do you not think that time has run against that right? Mr. Balmnger. I do not think time would ever run against' the right of an Indian. Mr. HuRLET. When they started to negotiate the treaty of 1830, whichgave them this property, as Mr. Ballinger correctly states, the commissioners who negotiated the treaty told those Indians that if they did not remove to and live on their land west of the Mississippi, they should relinquish it and become subject in all particulars to the laws of the State of Mississippi; and I have here a quotation from the records of the Indian Office showing an address that was made to the Indians at that time, which will throw some light on that if vou care to have it read. Mr. Baixinger. No; I do not care about having that inserted in my statement. Mr. Post. Plave the courts in any case decided whether or not time would run against these Indians ? Mr. Ballinger. Repeatedly they have held that the doctrines of estoppel and laches limitations do not apply to the Indian. Mr. Hurley. Between the United States and the Indian. Mr. Ballinger. This is a question between the United States and the Indian. Mr. Hurley. AVe do not look at it as such. Mr. Post. This is a question between the Choctaws who remained in Mississippi and the Choctaw Nation. Mr. Ballinger. It is a controversy between heirs, but the guardian having the property in control is the authority we are looking to and the authority we are making our appeal to. Mr. Bond. Didn't the Supreme Court of the District of Columbia a few weeks ago, in the Morton case, hold that Morton was guilty of laches, and therefore could not recover a part of his allotment? Mr. Ballinger. I am not -entirely familiar with that case, but that was in an inferior court in the District of Columbia, and therefore could not have any substantial bearing on this question. Mr. Post. You say you are looking to the United States Govern- ment. You do not look to the Choctaw Nation or this treaty for relief. Now, should you not convince us that the United States Government has not provided for these Indians in one way or the other ? Mr. Ballinger. I think that is absolutely incumbent upon me m order to establish their rights. Mr. Post. By showing that they did not receive any lands in Mis- sissippi that were left there to be allotted among the Indians; that the Indians did not receive any scrip or did not receive any of these two judgments. Mr. Ballinger. I do not understand that the mere taking of an allotment over in Mississippi had any bearing whatsoever upon a right in the western reserve, and I will tell you why. 232 ENEOLLMENT IN THE FIVE CIVILIZED TRIBES. Title was obtained, under the treaty of 1820, by an exchange of land, under which the Mississippi Choctaws acquired a right in the western lands. Whatever allotments they may have received in Mis- sissippi they got under the treaty of 1830, at a time when the residue of the land in Mississippi was disposed of, and they got their allot- ments out of the residue, which had no bearing upon their rights in the western lands acquired under the treaty of 1820. Mr. Bond. Mr. Ballinger, did not the Indians who went west only receive 320 acres of the average allotable land of the tribes west as an allotment selection? And did not the fourteenth article of the treaty give those Indians who remained the privilege of taking 620, 320, or 160 acres of land, regardless of its value and regardless of its location? Mr. Sullivan. That is article 19, not 14. Mr. Bond. And didn't that treaty give to the Indian who remained more land than was allotted to the Indian who went west? Mr. Ballinger. Mr. Bond, I take it that if 500 years ago you had been given a deed to the property upon which the city of Washington now rests it would have been of very little value. If you got a deed to a comparatively small portion of it to-day, you would have some- thing of great value. The Indian who received a quarter section, or 640 acres, as they did in some instances under the treaty of 1830, received something of very little value. Land at that time could have been purchesd throughout that country for not to exceed $1 or $1.25 an acre, and I believe it was $1.25 an acre that the Supreme Court allowed the Choctaws for the land ceded under the treaty of 1830. Lands allotted in 1902, 1903, 1904, 1905, 1906, and 1907 were worth anywhere from $5 to $100 and $150 an acre. Mr. Post. That land has grown in value since? Mr. Ballinger. The scarcity of land has given it value. Mr. Carter. At the time of allotment of those lands the Government placed upon them a price for allotment purposes running from 25 cents to $6.50 an acre? Mr. Ballinger. A mere arbitrary figure for the purpose of allot- ment. Mr. Carter. Now, just a moment — the commissioners on the part of the Chickasaw and Choctaw Nations agreed to that, did they not? Mr. Ballinger. That scheme became a' part of the law. Mr. Carter. The Chickasaws and Choctaws placed that valuation on it, and in placing that valuation on it they knew that a portion of those lands at that time was going to be transferred to the Chicka- saw freedmen, and that would be the only price they would get for it. Mr. Ballinger. The representatives of the nation never passed on those values. They were classified by the commission, and the com- mission took land for instance — I merely give this as a rough esti- mate — land, for instance, worth in excess of $40 an acre and classified it at $6.50 an acre for the purpose of allotment. Lands that were worth between $40 and $30 an acre were classified in another division, and so on down until you had a classification of 25 cents an acre. Mr. Carter. You are not answering the question. The question I am asking is this : The Chickasaws and Choctaws knew they were going to have to relinquish part of these lands to the Chickasaw freedmen, and the Federal Government would perhaps pay for ENBOLLMENT IN THE FIVE CIVILIZED TRIBES. 233 them. The tribes were represented by very able commissioners. When these tribal commissioners agreed to that valuation they knew that to be the maximum price that might be expected for the freedmen lands. Mr. Ballingee. Mr. Carter, at that time nor at the time the allot- ments were made, they did not know they were going to be reim- bursed for the land allotted to Chickasaw freedmen. They had a claim, but it was undetermined. Mr. Carter. They had a suit in the Court of Claims, and the treaty provided that they should be paid the appraised value of the land if they won, and it was generally conceded that the Chickasaws would win. Mr. Ballingee. What treaty provided that ? Mr. Carter. The treaty of 1902, 1 think it was. Mr. Ballinger. At that time the matter had not been referred to the Court of Claims. When it was referred the Court of Claims heard and determined the controversy and rendered judgment, which was appealed to the Supreme Court of the United States, and judg- ment rendered, as I recall, about 1908 for the amount of lands allotted to the Chickasaw freedmen. Mr. Carter. Yes. Mr. Ballingee. So they could not have known, when this classifi- cation occurred in 1898 and 1899, that they were going to be paid for them. Mr. Carter. The classification of the Choctaw and Chickasaw lands, as I now remember, continued until about 1902, and I thought I stated that so you would understand it. In the treaty of 1898 or 1902 there was a provision which provided for the allotment to the Chickasaw freedmen, providing for the allotting of 40 acres each to the Chickasaw freedmen. That matter was submitted to the Court of Claims, and it further provided that if the case was decided in favor of the nations, then the Chickasaw-Choctaw Nations should be paid for the freedmen allotments at the appraised value of the lands. Mr. Ballingee. That was a provision contained in the supple- mental agreement of July 1, 1902. Mr. Carter. Well, it was one or the other. Mr. Ballinger. The act of June 27, 1898, provided for the ap- praisal of the property. Mr. Sullivan. In regard to the contention that the people in Mississippi lost their rights to land in Mississippi by trading it for land in the West, those that received land were the chiefs and head- men. It did not apply to the whole people. Mr. EicHARDSON. That went West. Mr. Sullivan. Yes. And the provision in the fourteenth article that permitted them to allot — those people never got allotments. Mr.> Post. I want to see if I understand your position, Mr. Bal- linger. The United States by ceding this property in Oklahoma in 1820— the 4,000,000 acres of the Choctaw Nation in Mississippi— they received compensation from the United States Government by an ex- change of the lands West. But in 1830, when the Choctaw Nation ceded 10,000,000 acres in Mississippi to the United States Govern- ment there was no consideration; that in the suit of the Choctaw Nation against the United States, in which it was found by the 234 ENBOLLMENT IN THE FIVE CIVILIZED TRIBES. Supreme Court that there was no consideration passing to the Indians for that 10,000,000 acres of land, a judgment was rendered against the United States in favor of the Choctaw Nation, which judgment was subsequently paid by the United States Government. Therefore the United States Government' complied with its obliga- tion in paying for the 10,000,000 acres of land. Now, under the treaty of 1830 the lands that were ceded in Missis- sippi to the United States Government were retained, part of it for the State of Mississippi and part of it for the Choctaw Indians who remained there. Some of them received allotments and others did not. Those who did not receive their allotments afterwards were granted scrip. That scrip gave them the right to take up land on any of the public lands of the United States in certain States. Now, it was found that the Indians who received this scrip sold it, gave it away, and were taken advantage of by the white men, and after that the other half of the scrip was reduced to a money judgment for $872,000. Now, didn't the United States Government in all of those transac- tions fully comply with all of its obligations to the Choctaw Indians ? Mr. Ballingee. My position is that the allotments given to certain Indians under the treaty of 1830 have no possible connection with the right of those Indians in the western reserve which was acquired under the treaty of 1820. Mr. Post. Now, you concede that the United States Government fully paid the Indian for all the property it received? Mr. Ballingee. Yes. Mr. Post. But you claim that by permitting the Choctaw Nation in Oklahoma to dissolve its tribal relations and cease to be a nation any longer, thereby cutting off the right of the Mississippi Choctaw to move to Oklahoma and receive the benefits of the tribal property there, that the Government was derelict in its duty in the guardian- ship of those Indians, and the Government ought to take care of them? Mr. Ballingee. That is substantially my position ; the exact posi- tion being this : That it was the Government which assumed control of the Indian property in Oklahoma; it was the Government that dismembered the tribes and divided the property in severalty, and that it did that without any proper notice being given to the Indian in Mississippi so that he could remove and enjoy his rights and par- ticipate in the division. Mr. Post. It did that and omitted the rights of the Mississippi Choctaws; it omitted to take care of their right? Mr. Ballingee. No ; it did not exactly do that. Provision was con- tained, as I intend to show at the next session of the committee, in practically every law of Congress relative to the Mississippi Choc- taws that was intended to safeguard their rights, but these provi- sions, with the exception of the provision in the act of 1902, were so vague, indefinite, and uncertain that they never accomplished any- thing. The administrative officers failed to carry out the act of 1902 so as to enable the Mississippi Choctaw to secure the benefits of its provisions. Mr. HuELEY. How many enrolled under these vague, indefinite, and uncertain laws? ENROLLMENT IN THE FIVE CIVILIZED TEIBES. 235 Mr. Ballingek. Every act of Congress contained provision for them. Mr. HtTRLET. May I ask the number of persons you represent? How many do you represent under the Lindley 10-year contracts Mr. Post (interposing). Were those 10-year contracts made in 1896, and have they expired ? Mr. Ballinger. There is no limitation of time in them. Mr. Carter. You will present that contract, will you ? Mr. Ballinger. I do not Imow that I can present the original of that contract, because that contract mysteriously disappeared some time ago. However, it is all a matter of record in the Court of Claims. _Mr. EiCHAEDsoN. You presented one page to the Court of Claims, did you not ? Mr. Ballinger. I think so. Mr. Richardson. Is this the page [indicating] ? Mr. Ballinger. Yes ; that is a portion of a mutilated copy. Mr. Carter. We will take up the contract at our next meeting. Mr. Eici-iARDSON. I would say that this is pages 31 and 71 of the printed pages of the record in the Winton case. STATEMENT OF MU. WEBSTER BALLINGER— Continued. Mr. Ballinger. Mr. Chairman and gentlemen of the committee, during my argument Tuesday I endeavored to establish the following facts and propositions of law : 1. That by the treaty of 1820 the Choctaws exchanged " a small part only" (estimated at 4,000,000 acres) of their lands in Mississippi for the western lands, situated in the then Indian Territory, to which western lands the Choctaws, by the treaty of 1820, obtained a grant in praesenti from the United States; that by this transaction all the Choctaw Indians, including those now remaining in Mississippi, acquired an interest in the western lands, which were held in common. 2. That the interest of the Choctaw Indian now living in Missis- sippi in the western lands, acquired under the treaty of 1820, has never been extinguished by purchase, forfeiture, or otherwise. 3. That in response to the insistent demands of the white people in Mississippi for the remainder of the lands of the Choctaws sit- uated in Mississippi, the treaty of 1830 was negotiated, under which the Choctaws ceded to the United States the remainder of their lands in Mississippi, amounting to about 10,000,000 acres ; that those Choc- taws who elected to remain in Mississippi under the fourteenth, fif- teenth, nineteenth, and supplemental articles of the treaty of 1830 took their share of the remaining lands in land, or was entitled to receive his share in land ; that the proceeds derived from the lands Ceded to the United States and sold belonged to the Indians who did not receive lands under the treaty of 1830. 4. That the treaties of 1820 and 1830 and the cessions of lands thereunder constituted two separate and distinct transactions, and that the allotments or grants of land made or intended to be made to the Choctaws who remained in Mississippi under the treaty of 1830 had no possible connection with the right of the Choctaw who re- 236 ENROLLMENT IN THE FIVE CIVILIZED TRIBES. mained in Mississippi to share in the western lands acquired under the treaty of 1820. 5. That the United States has never attempted to extend its guard- ianship to the person of the Choctaw Indian ; that such guardianship has only been extended to the property of the Choctaw Indian held in common or allotted in severalty; that the United States has at all times, and now, maintains its guardianship over the remaining tribal property in Oklahoma and over the proceeds derived from that sold in which the Mississippi Choctaws, by the treaty of 1820, acquired an interest in common with all other Choctaw Indians; that the United States has extended the same guardianship over the communal property of the Choctaw in Mississippi that it has over the property of the Choctaw in Oklahoma, and that citizenship, tribal, State, or National is not incompatible with such guardianship. And when counsel for the nations reply I would like to have them answer the propositions that I have submitted. Mr. Hurley. I can answer them in one sentence now. Mr. Ballingee. Not now, but in your own time. I now come to a review of the acts leading up to the legisla'tion for the dismember- ment of the tribal governments and the division of the tribal prop- erty in severalty, together with the successive acts of Congress under which we claim Congress recognized the rights of the Indians who remained in Mississippi. Prior to 1893 many complaints were made to Congress to the effect that the Indian governments in the Five Civilized Tribes were reek- ing with corruption; that they were controlled by a few shrewd and unscrupulous white men, who had appropriated practically the entire Indian estate to their own pecuniary use and benefit and to the exclusion of the Indian members of the tribe. So pronounced were these complaints that the Senate, by resolution adopted March 29, 1894, appointed a select committee to visit the Five Civilized Tribes, to investigate the conditions existing and make report thereon to the Senate. Under date of May 7, 1894, the committee appointed sub- mitted its report. (S. Rept. No. 377, 53d Cong., 2d sess.) In this report the committee says in part : The theory of the Government was, when it made title to the lands in the Indian Territory to the Indian tribes as bodies politic, that the title was held for all of the Indians of such tribe. All were to be the equal participators in the benefits to be derived from such holdins;. But we find in practice such is not the case. A few enterprising citizens of the tribe, frequently not Indians by blood but by intermarriage, have, in fact, become the practical owners of the best and greatest part of these lands, while the title still remains in the tribe — theoretically for all — yet in fact the great body of the tribe derives no more benefit from their title than the neighbors in Kansas, Arliansas. or Missouri. According to Indian law (doubtless the work of the most of the enterprising class we have named) an Indian citizen may appropriate any of the unoccupied public domain that he chooses to cultivate. In practice he does not cultivate it, but secures a white man to do so, who takes the land on lease of the Indian for one or more years, according to the provision of the law of the tribe where taken. The white man breaks the ground, fences it, builds on it, and occupies it as the tenant of the Indian, and pays rental either in part of the crop or in cash, as he may agree with his landlord. Instances came to our notice of Indians who had as high as 100 tenants, and we heard of one case where it was said the Indian citizen, a citizen by marriage, had 400 holdings, amounting to about 20,000 acres of farm land. We believe that may be an exceptional case, but that individual Indians have large num- bers of tenants on land not subdued and put into cultivation by the Indian, but by his white tenant, and that these holdings are not for the benefit of the whole ENROLLMENT IN THE FIVE CIVILIZED TKIBES. 237 people but of the few enterprising ones, Is admitted by all. Tbe monopoly is so great that in the most wealthy and progressive tribe your committee were told that 100 persons had appropriated fully one-half of the best land. This class of citizens take the very best agricultural lands and leave the poorer land to the less enterprising citizens, who in many instances farm only a few acres, in the districts farthest removed from the railroads and the civilized centers. As we have said, the title to these lands is held by the tribe in trust for the people. We have shown that this trust is not being properly executed, nor will it be if left to the Indians, and the question arises, what is the' duty of the Government of the United States with reference to this trust? While we have recognized these tribes as dependent nations, the Government has likewise recognized its guardianship over the Indians and its obligations to protect them in their property and personal rights. Mr. Bond. What relevancy has that to the issues before the com- mittee, Mr. Ballinger? Mr. Ballinger. I will demonstrate the relevancy in just a minute. By the act of March 3, 1893 (27 Stat. L., 645) , provision was made for the appointment of a commission to negotiate with the Cherokee, Choctaw, Chickasaw, Creek, and Seminole Nations, for the purpose of the extinguishment of the national title to any lands within the Indian Territory then held by said nations — 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 afore- said, or each of them, with the United States, with a view to such an adjust- ment, 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 suit- able to enable the ultimate creation of a State or States of the UUion which shall embrace the lands within said Indian Territory. The purpose of the creation of the commission was to bring about an equitable division of the tribal property, to be arranged by an agreement with the respective tribes. The reports to Congress made by this commission disclosed an intolerable condition existing in each of these tribes. In a report dated November 20, 1894 (S. Mis. Doc. No. 24, 53d Cong., 3d sess._), the commission described the condition existing in these tribes, in part, in the following language : Not less regardless have they been of the stipulations in their title that they should hold their territory for the common and equal use of all their citizens. Corruption of the grossest kind, openly and unblushingly practiced, has found its wiiy into every branch of the service of the tribal governments. All branches of the governments are reeking with it, and so common has it become that no attempt at concealment is thought necessary. The governments have fallen into the hands of a few able and energetic Indian citizens, nearly all mixed blood and adopted whites, who have so administered their affairs and have enacted such laws that they are enabled to appropriate to their own exclusive use almost the entire property of the Territory of any kind that can be rendered profitable and available. In one of these tribes, whose whole property consists of but 3,040,000 acres of land, within the last few years Jaws have been enacted under the operation of which 61 citizens have appropriated to themselves and are now holding for pasturage and cultivation 1,237,000 acres. This comprises the arable and greater part of the valuable grazing lands belonging to that tribe. The re- mainder of that people, largely the full bloods, who do not speak the English language, are excluded from the enjoyment of any portion of this land, and many of them occupy the poor and hilly country, where they get a scanty living from such portions as they are able to turn to any account. This class of persons in the Territory are making little if any progress in civilization. They are largely dependent on those in control of public affairs, whose will they 238 ENROLLMENT IN THE FIVE CIVILIZED TRIBES. register at the polls, and with whose bidding in a large measure they comply without question. Those holding power by these means oppose any change, and ask only to be let alone. In another of these tribes, under similar legislation, vast and rich deposits of coal of incalculable value have been appropriated by the few, to the exclu- sion of the rest of the tribe and to the great profit of those who operate them and appropriate their products to their individual use. Large and valuable plants for mining coal have been established by capitalists under leases by iwhich, together with " discoverer's claims " authorized by the tribal govern- ments, these coal lands are covered, and under the workings of which the rightful owners are being despoiled of this valuable property, with very little or no profit to them ; and it is clear that this property should be restored to the common domain and protected to the common people, and the mines worked under a system just and equitable to all who have rights therein. Mr. Carter. You spoke a few moments ago about the tribe being estopped from making objection as to a man's rights as a citizen because some official of that tribe had given a certificate, for which certificate they gave to him a certain fee. Now, do you think that such a band of pirates as you have described should be permitted, after robbing those people as you allege, to continue that robbery by having placed on the rolls some man's name simply upon the certifi- cate of one of these alleged pirates that he was entitled to have people employed under him ? Mr. Ballinger. Mr. Carter, my answer to that question is this: At that time the affairs of the Choctaw Nation were in the control of the able and intelligent class — mostly white — and they utilized the estate for their own pecuniary gain. That same element was in control of the tribal affairs up to the closing of the rolls on March 4, 1907, so far as the tribal affairs were concerned, and the attorneys, the governors, and the chiefs looked to them for their guidance; and it is the same men who then appropriated these estates to their own pecuniary gain who have steadfastly opposed the enrollment of the full blood, the helpless, and the incompetent. Now, in answer to your certificate proposition, the certificates having been issued by the officials of the nation, the nation ought not now to be permit- ted to deny them, certainly not unless it comes forward with clear proof that they were improvidentlj"- or fraudulently issued. Ordi- narily a man will not be permitted to perpetuate a fraud in one instance and then set up his fraud act as sufficient justification for repudiation. Mr. Carter. If they have robbed and preyed upon those people, as you declare they have, should the Federal Government permit a continuation of that piracy by allowing some fellow to participate in that estate for no other reason than that one of these corruptionists, as you say, happened for a fee to give him a certificate that allowed him to live on his place? Mr. Ballinger. We have been fighting for years, and are now fighting, to eliminate from the affairs of these people the same men who hare brought about this condition, and to reach a plane where their rights will be considered from an equitable standpoint. Mr. Carter. You are not directing your remarks to my question at all. Here is the question: You say these fellows were a band of corruptionists ? Mr. Ballinger. Yes, sir. Mr. Carter. That their acts were corrupt, that what they did was for a corrupt purpose, and that they were usurpers ? ENEOLLMENT IN THE FIVE CIVILIZED TEIBES. 239 Mr. Ballinger. Yes, sir. Mr. Carter. Now, do you think that you can come in good faith and ask this committee to perpetuate that corruption by continuing some of the wrongs that may have been perpetrated upon those people by them? Mr. Ballinger. I am not asking you to do that. Mr. Carter. It is quite another thing if a man has a right, as a citizen, to be placed on the rolls, but the mere fact that a man might have a certificate from one of these .so-called corruptionists does not present a case that ought to be considered seriously by honest men. Mr. Ballinger. The only reason in the world that I mentioned the certificate in the case of Anderson F. Cowling was that by the laws of Congress, secured through the representations of the same men who have produced the existing condition, the tribal rolls were made jurisdictional ; the commission could not inquire into the right of a person whose name was not on one of those rolls ; if a full-blood Indian, living in the Choctaw Nation from the date of his birth down to that moment, under the laws of Congress the commission could not assume jurisdiction over his case nor inquire into his right. Mr. Carter. Then your argument is that any man recognized by your alleged band of corruptionists in any shape or manner is en- titled to be placed on the rolls? Mr. Ballinger. No, sir; but I am saying that under the laws of Congress that man was entitled to enrollment on the rolls of the Choctaw Nation, and that is how many of them got there. Mr. Carter. You are getting away from the question. We are not speaking about his rights. I am asking you the simple ques- tion whether you have the right to ask this committee to approve the acts of a band whom you denounce as corruptionists and pirates ? Mr. Ballinger. Absolutely not. Mr. Carter. That was your statement with reference to this case a while ago, that the nation ought to be estopped ; that because they had been imposed upon in one instance the same people must now be estopped from preventing what perhaps might be a further im- position. Mr. Ballinger. The commission having failed to secure agree- ments with the tribes Congress, in the discharge of its duties as guar- dian and in aid of the full bloods and incompetent Choctaw Indians, its wards, passed the act of June 10, 1896, which authorized the com- mission to prepare a roll of the Choctaws entitled to membership in the tribe. Mr. Post. That is the Dawes Commission? Mr. Ballinger. Yes, sir ; the Dawes Commission. Under this act a number of Indians residing in Mississippi ap- plied to the commission for enrollment as members of the Choctaw Tribe. The commission held that as they had failed to remove to the Choctaw Nation they were not entitled to enrollment. From the decisions of the cominission in these cases appeals were taken to the United States courts in Indian Territory. Judge Clayton, United States judge for the central district of Indian Territory, held in the Jack Amos case that the nonresident Indian was not entitled- to enrollment, thus affirming the decisions of the commis- sion rejecting the applications of the Choctaw Indians residing m 240 ENROLLMENT IN THE FIVE CIVILIZED TRIBES. Mississippi as well as all Indians who were not resident of the nation. Judge Townsend, United States judge of the southern dis- trict in Indian Territory, held in the Horn case that residence was not essential to a right to share in the tribal property and reversed the decision of tlie commission in that and other cases and held the applicants entitled to enrollment. On appeal to the Supreme Court of the United States authorized by the act of July 1, 1898 (30 Stat. L., 571, 591), the court held that the act authorizing an appeal to that court from the decisions of the courts in Indian Territory au- thorized that court to pass upon the question only of the validity of the legislation enacted by Congress, and held the legislation con- stitutional and af&rmed the judgments of the courts in Indian Ter- ritory authorized that court to pass upon the question only of the validity of the legislation enacted by Congress, and held the legisla- tion constitutional and affirmed the judgments of the courts in Indian Territory in all cases (Stephens v. Cherokee Nation, 174 U. S., 476). Thus a part of these claimants possessed of identical rights had been by the decrees of the United States court for the central district of Indian Territory denied, while others were by decrees entered by the United States court in the southern district of Indian Territory held entitled to enrollment. By the decision of the Supreme Court of the United States the decisions in both cases were affirmed and held to be final. Mr. Carter. Holding that both judges were right? Mr. Ballinger. Yes, sir; that both judges were right. Mr. Post. Where will I find the Townsend decision? Mr. Ballinger. It is in a previous record of the hearing. If it is not, I will be glad to supply it. The act of June 10, 1896, was followed by the act of June 7, 1897, which directed the commission as follows: That the commission appointed to negotiate with the Five Civilized Tribes in the Indian Territory shall examine and report to Congress whether the Missis- sippi Choctaws under their treaties are not entitled to all the rights of Choctaw, citizenship except an interest in the Choctaw annuities. Under date of January 28, 1898, the commission submitted its report, in which it found that the treaty of 1830 required removal as a prerequisite to a share in the tribal property, and therefore, as the Mississippi Choctaws had not removed, they were not legally entitled to be enrolled as members of the tribe and to receive dis- tributive shares of the tribal property in Oklahoma. Mr. Carter. What report was that? Mr. Ballinger. That was the commission's report. The commis- sion reeommened in that report that the matter be referred to the Court of Claims for judicial determination on account of the di- versity of decisions in the United States courts in the Indian Territory. Mr. Post. Were there more than two decisions? Mr. Ballinger. Yes, sir; there were decisions in a number of cases. There was the Home case, governing all Choctaw cases that come up in Judge Townsend's court. That is to say, all Mississippi Choctaw cases that came before Judge Townsend were governed by the decision in the Home case, while the decision in the Jack Amos case governed all Mississippi Choctaw cases that came before Judge Clayton's court in the central district. ENROLLMENT IN THE FIVE CIVILIZED THIBES. 241 Mr. Carter. I believe you said the Home case was appealed to the Supreme Court of the United States? Mr. Ballinger. Yes, sir. Mr. Carter. And that was affirmed? Mr. Ballinger. Yes, sir. Mr. Carter. And you say the Jack Amos -case was appealed to the Supreme Court of the United States? Mr. Ballinger. Yes, sir. Mr. Carter. What was the action in that case? Mr. Ballinger. It was affirmed, as I recall. Mr. Carter. Is it not a fact that both of those cases were dismissed on the motion of the attorney for the Mississippi Choctaws ? Mr. Ballinger. I think not. Mr. Carter. That is the fact. I will read you from Supreme Court Reports, volume 19, October term, 1898, page 873 : Amos et al. v. Choctaw Nation (Feb. 20, 1899), No. 467. Appeal from the United Spates court in the Indian Territory. W. T. Hutchings for ap- pellants. No opinion. Dismissed with costs on motion of W. T. Hutchings for the appellants. Mr. Ballinger. Now, if the committee pleases, there had been a recognition of the Mississippi Choctaws by the decision of Judge Townsend, and Congress had gone so far in the act approved June 7, 1897, as to direct an investigation by the commission of their rights. The commission reported, under date of January 28, 1898, that they had no rights, in its opinion, unless they removed, but recommended that the matter be referred to the Court of Claims. Now, in the face of that report of the commission. Congress, by the act of June 28, 1898 (30 Stat. L., 495, sec. 21), provided with refer- ence to the Mississippi Choctaws as follows : Said commission shall have authority to determine the identity of Choctaw Indians claiming rights in the Choctaw lands under article 14 of the treaty between the United States and the Choctaw Nation concluded September 27, 1830, and to that end they may administer oaths, examine witnesses, and per- form all other acts necessary thereto and make report to the Secretary of the Interior. * * * 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. By this act Congress again recognized that those persons wht) could establish the fact that they or their ancestors received or were enti- tled to receive land, irrespective of their failure to remove, under the fourteenth article of the treaty of 1830 had some rights in the tribal property which Congress should respect. It will be observed that there was no requirement in this law that they should remove and no specific provision for their enrollment, although this was im- plied. Proceeding under the above authority of law a member of the commission went to Mississippi in the winter of 1898-99 and attempted to make a roll of those Choctaws who could show that they secured lands or were entitled to secure lands under the fourteenth article of the treaty of 1830, or who were the descendants of any such person. In a report to the Secretary dated March 10, 1899, the commission advised the Secretary in part as follows : The full-blood Choctaw people, who have for nearly three-quarters of a cen- tury continued to refeide in Mississippi as recognized citizens of that State, 64969^15 16 f 242 EUTBOLLMENT IN THE FIVE CIVILIZED TRIBES. speaking the Choctaw language as fluently as did their fathers, who have acquired only such knowledge of the English language as enables them to transact ordinary business with the white people of the country, can not now, therefore, reasonably be required to show the purposes of their ancestors by stronger proof than the facts of such residence and such recognition as citizens of the States and the further fact that they are descended from the Choctaws living there at the date of the treaty. The commission, therefore, finding it impossible to trace the full-blood Choc- taw now residing in the State of Mississippi, bearing an. English name, with any degree of certainty to his ancestors bearing Indian names and to establish the fact thjit such ancestors performed the duty of signifying to the United States agent within the limited period their intention and desire to remain and be- come citizens of the States, has believed it to be its duty to report the names of all full-blood Choctaw Indians who might appear before it in said State for identification as Mississippi Choctaws, and it accordingly makes such re- port, having taken the names and identification of each of such persons and prepared a schedule of them from the data obtained by the commission re- cently within said State, which schedule accompanies this report as a part hereof. Of these there are two families and probably a few other persons who are mixed bloods, while all the others are full-blood Choctaw Indians. The com- mission finds that only a few families of these Choctaws own land, while all are poor, ignorant, and helpless, in almost every case susceptible of imposition and wrong at the hands of the white man, but remarkably peaceable, law- abiding, and industrious. It is a rare instance that any one of these Choctaws is charged with the commission of a crime. On this roll there were the names of 1,923 Indians. The commission further reported that it was informed that — several hundred Choctaws who remained in Mississippi have removed to the States of Alabama and Louisiana and there live in much the same condition as those found in Mississippi. Accompanying this report was a schedule containing the names of 1,923 Mississippi Choctaws that had been identified by the com- mission. The commission in its annual report, dated September 1, 1900, states that in addition to the 1,923 Mississippi Choctaws whose names appear on the McKennon roll, the commission was satisfied that there were from three to five hundred full-blood Mississippi Choctaws re- maining in Mississippi unidentified. The Secretary having failed to take any action upon the schedule prepared by the commission, and accompanying its report, dated March 10, 1899, Congress by the act of Maj'' 31, 1900 (31 Stat. L., 221), enacted the following provision of law: 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 Chiekasaws by the Secre- tary of the Interior, to make settlement within the Choctaw-Chicka.saw country, and on proof of the fact of bona fide settlement may be enrolled by the said United States Commission and by the Secretary of the Interior as Choctaws entitled to allotment This act was designed and intended to validate and confirm the McKennon roll, for it Avill be observed that it included " any Mis- sissi]:)pi Choctaw duly identified as such by the United States Com- mission to the Five Civilized Tribes." Nothing was said about the approval of the schedule by the Secretary. But the Secretary claimed this right under the provision authorizing him to approve the enrollment. Some of the Indians on this schedule removed, but found upon removal that the commission refused to recognize them, and being refused allotments of land, returned to Mississippi. Mans- ENROLLMENT IN THE FIVE CIVILIZED TRIBES. 243 field, McMurray & Cornish became the attorneys for the Choctaw Tribe on July 1, 1900, and from this time on waged a relentless war against the Mississijjpi Choctaws. By reason of the protests of these attorneys the commission, under date of November 5, 1900, advised the. department that it proposed to visit Mississippi again for the purppse of reinvestigating the Indians identified on the McKennon roll and to investigate the claims of others. Now, note that Congress had by the act of May 31, 1900, confirmed that roll, and here we find the commission in November, 1900, notify- ing the department that they proposed to reinvestigate the rights of the persons whose names were on the roll confirmed by the act of Congress. November 27, 1900, the commission requested permission to withdraw from the files of the department its report of March 10, 1899, and the schedule attached. December 3, 1900, the department advised the commission that it might withdraw one of the duplicate copies. December 28, 1900, the commission requested authority to withdraw " the report in its entirety for consideration and modifica- tion." January 5, 1901, the Indian Bureau denied the request, which action was concurred in by the Secretary on January 9, 1901. Janu- ary 22, 1901, the commission reiterated its request on the ground that " a report which has no ofiicial existence should not be extant." January 31, 1901, the request of the commission was again denied (annual report of the department, 1901, Indian Affairs, pt. 1, p. 158). The object and purpose of the commission in attempting to with- draw the report in its entirety was to remove it from the records of the department. The commission had at this time, at the instance of Mansfield, McMurray & Cornish, abandoned the full-blood rule of evidence and proposed to require each of these Indians to submit clear proof that he received land under the fourteenth article of the treaty of 1830, or was entitled to receive land under said article, or was a descendant of a person who did or was entitled to so receive land. Mr. Carter. How do you know that the commission did that at the instance of Mansfield, McMurray & Cornish ? Mr. Ballikger. It was in response to their protest that the com- mission asked to withdraw the schedules. Mr. Carter. In response to the protests of Mansfield, McMurray & Cornish ? Mr. Ballinger. Yes, sir. As I stated, the commission had at this time, at the instance of Mansfield, McMurray & Cornish, abandoned the full-blood rule of evidence it initiated and adopted about a year before, and proposed to require each of these Indians to submit clear proof that he received land under the fourteenth article of the treaty of 1830 or was entitled to receive land under said article, or was a de- scendant of a person who did or was entitled to so receive land. In other words, the commission proposed to exact of these people a requirement which the commission had advised the Secretary in its report of March 10, 1899, was impossible for the Mississippi Choc- taws to comply with. While this controversy was going on Congress ratified the supplemental agreement with the Choctaws and Chicka- saws, which is known as the act of July 1, 1902 (32 Stat. L., at 651). The agreement as negotiated with the tribes limited the rights of Mississippi Choctaws to those only who could show by clear proof that they were entitled to benefits under article 14 of the treaty of 244 ENROLLMENT IN THE FIVE CIVILIZED TRIBES. 1830. I want you to note the difference now between the agreement as negotiated by the tribe and the agreement as approved by Con- gress, which is indicative of the desire of the Choctaw officials to protect the rights of the Mississippi Choctaws. As I stated, the agreement as negotiated with the tribes limited the rights of Missis- sippi Choctaws to those only who could show by clear proof that they were entitled to benefits under article 14 of the treaty of 1830. It should be remembered that the commission had in the report of March 10, 1899, advised the Secretary that such proof could not be furnished by these ignorant full-blood Indians. Accordingly, the committees of the House and Senate jointly amended this agreement by inserting a provision enacting into law the full-blood rule of evi- dence adopted by the commission in its report of March 10, 1899. The pertinent sections of this agreement are as follows : 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 Stat. L., 495), as Mississippi Choct;iws entitled to benefits under article 14 of the treaty betveeen the "United States and the Choctaw Nation concluded September 27, 1S30, may, at any time within six months after the date of their identification as Mississippi Choctaws by the said commission, malse 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 identi- fication as Mississippi Choctaws. shall be enrolled by such commission as Mis- sissippi 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 Missis- sippi Choctaw shall be received by said commission after six months subse- quent to the date of the final ratification of this agreement, and in the dispo- sition of such applications all full-blood Mississippi Choctaw Indians and the descendants of any Jlississippi Choctaw Indians, whether of full or mixed blood, who received a patent to land under the said fourteenth article of the said treaty of 1830, who had not moved to and made bona fide settlement in the Choctaw-Chicliasaw country prior to June 2S, 1898, shall be deemed to be Mis- sissippi Choctaws, entitled to benefits under article 14 of the said treaty of September 27, 18.S0, and to identification as such by said commission, but this direction 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 descendant of a Jlis- sissippi 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 sepa- rate 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 resdence thereon before and after such enrollment, he shall, upon due proof of such continuous, bona fide residence, made in such manner and before such ofiicer as may be designated by the Secretary of 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 be dead, the mother may apply ; husbands may apply for wives. Applications for orphans. Insane persons, and persons of liinsound 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 tlie discretion of said commission. It will be observed that by the above provisions a right to enroll- ment was dependent upon the .submission of an application within six months after the ratification of the agreement; that the appli- ENROLLMENT IN THE FIVE CIVILIZED TRIBES. 245 cation should be submitted in person before the commission; that applications for minor children should be submitted by the father or mother; and that duly appointed guardians or curators might apply ^ov the enrollment of orphans, insane, aged, and infirm per- sons. Here the obligation of applying for identification devolved entirely upon the ignorant Indian, who was required to exercise this right within six months by personally appearing before the commission, a requirement that was unjust, 'irxequitable, and unfair. Would any chancery court have imposed such conditions upon in- competent persons? Did not justice demand that the obligation of ascertaining these people should rest upon the Government officers, and certainly as to the full bloods who could not speak the English language, the aged and infirm, the orphan and minor children? When the commission commenced work under this law of identify- ing the Mississippi Choctaws some of the attorneys who had been representing the Indians advised those who had been identified on the McKennon roll not to reappear before the commission for identi- fication under this law, claiming that the McKennon roll had been confirmed by act of Congress. About 900 of the 1,923 Indians whose names appeared on the McKennon roll, acting upon the advice of their attorneys, refused to appear before the commission and thereby failed to secure identification. The commission, however, succeeded in identifying 2,534 Indians under the full-blood rule of evidence provided in this law, individual identifications being approved by the department up to the 4th day of March, 1907. Under the law the Indian was required within six months after identification to re- move to and make bona fide settlement in the Choctaw-Chickasaw country, and upon proof of such settlement to the commission within one year after the date of identification the commission was au- thorized to enroll the Indian. The certificate of allotment, however, was not to be issued to the Indian until he had resided upon the land for three years. The statute did not give the Indian six months in which to remove from the date he was notified of his identifica- tion, but six months from the date of identification. In some in- stances the six-months period expired before the Indian received notice of his identification. In a number of instances the identi- fication was less than six months before the rolls were closed bv operation of law on March 4, 1907. In these cases it was a physical impossibility for the Indian to secure enrollment, for under the law he was to remove to and make bona fide settlement on the land within six months after identification, and then six months later, and upon proof of his bona fide settlement, the commission was authorized to enroll him. In cases where the identification was made after March 4, 1906. there was no possible way by which the Indian could comply with the law and pecure enrollment by March 4, 1907. Thus it happens that a number of Indians who removed to and_ made bona fide settlement on lands in the Choctaw Nation within six months after they were identified failed to secure enrollment. Mr. Howell, in his report, refers to, this class on pages 131 and 175. This class of Mississippi Choctaws certainly presents such an equitable claim as should appeal to the conscience of Congress. To deny them would be to close your eves to justice. Mr. Carter. Mr. Ballinger, how long will it take you to conclude? Mr. Ballinger. Probably three-quarters of an hour. 246 ENROLLMENT IN THE FIVE CIVILIZED TRIBES. Mr. Ballinger. I was speaking, when last before the conunittee, of the act which required the Choctaws to remove within six months after identification and submit proof of their removal and bona fide settlement on the land within one year thereafter, and that many of them did not receive notice of their identification until the six months had actually expired after they had been identified. Of the 2,534 Choctaws who were identified under this law, only 1,445 were enrolled. A portion of the remaining 1,089 persons removed to the Choctaw Nation, but on account of the arbitrary closing of the rolls on March 4, 1907, failed to secure enrollment, and being unable to obtain allotment returned to Mississippi. Others were too poqr to remove, and with them removal was impossible. Congress was advised of this situation and was appealed to to include an appro- priation in the supplemental agreement of July 1, 1902, to defray the costs of the removal of these Indians. An amendment was in- serted in the agreement in the House appropriating $15,000 for this purpose, but the attorneys for the Choctaw Nation resisted the amendment. Senator Stewart, then chairman of the Senate Com- mittee on Indian Affairs when the matter was under discussion by the Senate (Cong. Eec, vol. 35, part 7, pp. 72-87, 97),- resisted the House amendment, stating (id. 72-92) : But tlie importation of tlie Mississippi Clioctaws to this country, the Choc- taws in the Territory will regard as unjust, so their representative tells me. I think it would be an outrage. I think it would defeat the treaty. Because of this opposition coming from the then Choctaw tribal attorneys, the amendment was defeated. A further attempt was made to secure an appropriation for the removal of these Indians, and an appropriation of $20,000 was in- cluded in the act of March 3, 1903 (32 Stat. L., at 997). With this appropriation of $20,000 the commission was able to remove less than 300 Indians. I recall that within the last three years Congress has appropriated $200,000 or $300,000 to remove less than 200 In- dians from Fort Sill, Okla., over to the Apache reservation in New Mexico and Arizona. Mr. Carter. You are mistaken about that. The money was appro- priated to remove the Indians and to locate them on their allotments over there, and also to buy inherited lands that were offered for sale for them in Oklahoma. Mr. Ballinger. Yes ; I think the total appropriation was $300,000. Mr. Carter. The principal portion of that has been spent for pur- chasing inherited lands, and I think also that these Indians had some stock that they had to remove. Mr. Ballinger. I think that is correct, but I was merely using that as an illustration. Where there were 2,500 or 2,600 Indians to re- move from Mississippi the appropriation was only $20,000, which was totally inadequate for the purpose. Mr. Carter. I do not think $20,000 was adequate for the pur- pose of removing the Mississippi Choctaws imless the intention of the act was to remove only those who were not able to remove them- selves. But the $200,000 for the removal of the war prisoners is not a fair comparison at all, because that amount was not only used for removal purposes but the major part of it was to buy lands for such as desired to stay there. ENROLLMENT IN THE EIVE CIVILIZED TEIBES. 247 Mr. Ballinger. The appropriation for the Apaches was for their removal and maintenance and purchase of lands on which to locate them. In this case the $20,000 appropriated for the removal of the Mississippi Choctaws was not only appropriated for their removal but also must necessarily have been used for the maintenance of these Indians after they were removed to Oklahoma until they could sup- port themselves. Because they were destitute and helpless those who were unable to remove themselves were forced to enter into unconscionable contracts with persons who agreed to remove them and subsist them on their lands. In fact, corporations were organ- ized for the purpose of trafficking in the property rights of these Indians, the corporation to receive the property with incidental benefits to the Indians. Let me read you a letter written by one of the promoters of one of these companies, dated February iO, 1903. The letter reads in part : The Mississippi Clioctaws have not the means to remove and sustain them- selves without assistance. Mr. Winton and his associates have secured con- tracts covering about 2,000 persons and desire to have the means for remov- ing and establishing them, including all details properly connected with that purpose. The Choctaw Cotton Co. was organized for the purpose of taking over these contracts and all of the contracts were conveyed to the Choctaw Cotton Co., incorporated under the laws of West Virginia, in exchange for $200,000 of its stock. The corporation has an authorized capital of $500,000. Only $200,000 of its stock has been pledged and for the purpose only, as above stated. The removal of these people ought to take place at the earliest pos- sible date. Some of them are already moving on their own account. The ad- vances made to the people will be mrde as a loan to them against the proceeds of their estate of 320 acres each, as well as the proceeds of their own labor. One-half the estate and one-half, the income is pledged to us under our con- tract. We have .lustly earned this fee by sevem years of labor and the advance of thousands of dollars and expenses. The time is auspicious for getting lands of great value in the Choctaw-Chickasaw Country. There are numerous indi- viduals there who have large areas in excess of their pro rata share, which, under the law of July 1, 1902 (sees. 19, 20, 21), they are obliged to relinquish under severe penalties. They will sell improvements for less than their value, relinqnishing the land without estimating the land as of any value. This will include large cultivated farms, which would pay a rental from $1 to $3 an acre per annum. None of this land is worth less rental than 50 cents an acre. You will perceive that we do not propose advancing a sum in excess of SI 03 per capita. To secure this we have the personal obligation of the Choctaw, control of his land, with a half interest in its proceeds. A 5-year rental contract alone on 320 acres of land should be worth in the neighborhood of $1,500. The exceptional opportunities in securing land for town-site purposes or' adjacent established towns, lands peculiarly valuable for mineral purposes, we do not care to estimate, although such values are manifest to any one con- sidering the opportunities in a country entirely undeveloped. The commission advised the Mississippi Choctaws not to enter into these contracts; that the commission would remove them at the ex- pense of the Government of the United States. Many a poor full- blood Indian is to-day in his poor, lonely hut in Mississippi waiting for the officers of the United States to remove him to his allotment in Oklahoma. These people, having been assured by the Govern- ment officers that thev would be removed by the Government, and havino- relied upon the promises made, and having lost their property thereby, it can not now be said in equity and .good conscience that the Government owes them no obligation. The act of March 3, 1905 (33 Stat. L., p. 1048, at p. 1071) states in part : 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 appli- 248 ENROLLMENT IN THE FIVE CIVILIZED TRIBES. catious for eurollment of children born subsequent to September twenty-fifth, nineteen hiinclred and two, and prior to March fourth, nineteen hundred and five, and who were living on said latter 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. I want to lay particular stress upon the fact that this Act only authorized the enrollment of the children of parents who had been theretofore enrolled. The child of a parent whose application was then pending and whose parents -were enrolled after March 4, 1905, could not receive any of the benefits under this Act, thereby making a clear discrimination between those whose parents had been en- rolled theretofore and those who were entitled to enrollment and who were subsequently enrolled. Mr. Carter. There was an act passed for them, providing for the enrollment of children, wasn't there? Mr. Ballinger. Yes ; and in the act of April 26, 1906, the claims of these children having been rejected under the preceding act, were either not resubmitted or not considered by the commission. Mr. Carter. Now, there have. recently been placed upon the rolls a number of persons, the majority of whom are children. Doesn't that list include the people that you speak of, who were not enrolled? Mr. Ballimger. Let me give you an illustration of the investiga- tion which was made, which resulted in the preparation of that roll, and I will refer now to the Creek Nation, which is a fair illus- tration, for the same investigation was made in the Creek Nation that was made in the other nations. Within the last year 1 have obtained a list, or prepared a list, of several hundred children who were born to parents duly enrolled, born between 1900 and March i, 1906, but have not been enrolled. And I am submitting these hsts as fast as they are prepared to the attorney for the Creek Nation, who is now investigating the cases and will probably make a recom- mendation to Congress. But the condition there existing obtains to a greater or less extent in the other tribes. Mr. Carter. Weren't any of these names on this list furnished by the Secretary of the Interior? Mr. Baijjnger. None of the names that I refer to. Mr. Carter. None of the names of those children who were born to parents enrolled after 1905 ? Mr. Ballinger. Yes; the list subinitted by the commission, and which has been approved by a provision in the Indian appropriation bill, enrolling them, contained the names of a number of those children, but there is also quite a number of other children similarly situated who were not included. Mr. Carter. How many of them are there? Mr. Ballinger. Why, I can not say. I can state more accurately in the Creek Nation than in the Choctaw and Chickasaw Nation, because I have not gotten around to them. Mr. Carter. Your contention, as I understand it, is this : That the act only provided for the enrollment of children whose parents were then on the roll and whose status was settled ? Mr. Ballinger. That is correct. Mr. Carter. Now, then, how many people were enrolled after that? Mr. Ballinger. Well, I could not state, but there was a large number enrolled during the last year. BNEOLLMENT IN THE FIVE CIVILIZED TEIBBS. 249 Mr. Carter. There was a large number whose status was not set- tled at that time ? Mr. Ballinger. Yes ; and was settled between March 4, 1905, and March 4, 1907, so that those children did not get the benefits of either act. There is still another class who are in equity and good conscience entitled to relief, who were referred to in Mr. Howell's report at page 129, wherein he says (this bill will be found in Senate Document 1139,62d Cong., 3d sess., p. 129) : In respect to the Mississippi Olioctaws, I find tliat tliere was an error of con- struction on tlie part of the Commissioner to the Five Civilized Tribes, which must have caused many children to lose the rights of citizenship. In order that this may be understood, a word of explanation will be necessary, perhaps, concerning this class of Indians. There were two distinct stages in this work. Applicants were first identified as Mississippi Choctaws by the Commission to the Five Civilized Tribes, following which schedules of identified Mississippi Choctaws were prepared and approved by the Secretary of the Interior. After identification they had the right, for six months, to remove to and establish residence in the Choctaw-Chicliasaw country. Subsequent to their removal and upon submitting satisfactory evidence of settlement, their names were placed upon a roll similar to that established for native-born Choctaws. Like other rolls of citizenship, these Mississippi Choctaw rolls would be forwarded to the Secretary, and when approved by him the persons named thereon became enrolled citizens with substantially the same rights as other Choctaw citizens. Accordingly, when the act of April 26, 1906, went into effect, a question arose as to whether their minor children living March 4, 1906, were entitled to enrollment. The Commissioner to the Five Civilized Tribes erroneously held that they were not so entitled, and, of course, during the period while his ruling was. in effect the time in which they could make application was rapidly passing. The matter was brought to the attention of the department and. in a decision rendered May 25, 1906, in the case of VPillis Willis, the Secretary of the Interior ruled that the children of enrolled Mississippi Choctaws living March 4, 1906, were entitled to enrollment under said act of April 26, 1906. When in Muskogee last October or November, I learned from the office of the Commissioner to the Five Civilized Tribes that, after receiving said decision of May 25, 1906, the practice was changed and the children of Mississippi Choctaws enrolled without further discrimination against them, but that there was no time to go back and take up the cases which had been disposed of under the act prior to said decision, and that no attempt was made to do so. Thus one- third of the allotted time was lost to the children of enrolled Mississippi Choctaws. Now, there is a distinct class, Mr. Chairman, and I take it no one will question the rights of those children. Mr. Carter. Whose report is this ? Mr. Balmnger. That is Mr. Howell's report, and I might also state that I have myself personally verified that from the records of the department. Mr. Carter. Who is this Mr. Howell? Mr. Bali/INGer. Mr. Howell is an assistant attorney in the office of the Assistant Attorney General for the Interior Department. Mr. Carter. How long has he been employed down there ? Mr. Ballinger. I can not state definitely, but he must have been there 16 or 18 years, i Mr. Carter. He took part in the making of the rolls, did he not? Mr. Ballinger. He was a clerk in the department. Mr. Carter. He was a law clerk and reported on a good many cases ? Mr. Ballinger. Yes. Mr. Carter. You are familiar with Mr. Howell's reports, are you? Mr. Ballinger. Yes. 250 ENROLLMENT IN THE FIVE CIVILIZED TRIBES. Mr. Carter. Did you ever know of Mr. Howell reporting adversely a claimant for citizenship? Mr. Ballinger. Yes. Mr. Carter. You made that statement before the Senate committee, at which time you agreed that you would place in the record the style of the case and name of applicants adversely reported. Now, I would like to have one single case, because I have been mfornied by others that Mr. Howell never reported adversely on one single citizen- ship case; that in every case which came before him he had recom- mended that the applicant be enrolled. Mr. Ballingek. Mr. Carter, that is a mistake, and I am very glad that you mentioned that. While I can not cite the particular cases at the present time that were denied by him, because I do not know the particular cases that he himself wrote up. All we knew was that they were signed by the officials of the department and we never knew what clerk prepared the decision in the case. Mr. Carter. I am very much interested in getting the case in the record, because the statement was given to me by one of the most substantial citizens of our country, who has perhaps now been nomi- nated for Congress, Mr. W. W. Hastings. He told me he had prac- ticed before Mr. Howell ever since he had been practicing before the Interior Department, and that so far as his knowledge went, Mr. Howell had never reported adversely a single claimant. Mr. Ballinger. I think that a number fli cases that Mr. HoweU reported upon in that report were adversely decided by him. That is, the decisions were prepared by him. Mr. Carter. And he recommended them adversely ? Mr. Baiainger. He passed upon them originally, upon the records before him. Mr. Carter. Did he recommend them adversely then ? Mr. Ballinger. He recommended that they be decided against the applicants at that time. Mr. Carter. Then, afterwards, he changed that decision? Mr. Ballinger. Subsequently, when he went to Muskogee, in 1908 or 1909, and there found the record that pertained to- the rights of these people that were never in the records when the case was origi- nally before him, that they were transmitted to the department upon the new evidence which was then in the commission and in transmitting these to the department, Mr. Howell recommended re- consideration of those cases. Mr. Carter. I am not speaking with a view to discrediting your case here at all, but I do want to get this citizenship question, if I can, down to some substantial basis. I do want to be able to know if the statements which are made pro and con across the table about these different men are true. If that is true of Mr. Howell, then his recommendation should not have much weight with Congress. It would be remarkable, a miracle, if in all the applications that were made for citizenship any law clerk should fail to find one who was not entitled to citizenship. Mr. Ballinger. I have no doubt that your information is incorrect. Mr. Carter. Mr. Hastings kept up pretty well with these things. Mr. Ballinger. I know that to be a fact, because of some of the Cherokee cases that Mr. Howell prepared decisions adversely in be- ENEOLLMENT IN THE FIVE CIVILIZED TEIBES. 251 forts March 4, 1907, but he subsequently found evidence to change his decision. Mr. Carter. You have disputed before the statement that this Mr. Howell had never in all his citizenship work reported one single enrollment case favorable to the tribes. You have been asked to furnish citations for the record, which you failed to do. You now dispute about that point again. Again I ask you to furnish for this record the style of the case or names of applicants in which Mr. Howell reported adversely to the applicants or recommended their rejection. What we have got to have to decide these matters on is concrete evidence, not the mere slipshod statement that such and such is or is not the case. There is a clear conflict between you and Mr. Hastings, and I would like for you to get the cases, furnish the cases if you can that Mr. Howell passed upon and see if one single instance con be found in which he did recommend the rejection of the applicant ? Mr. Ballinger. Mr. Chairman, in reply to your question, there were but very few of these Mississippi Choctaw cases — and I take it tho-se are the only ones we are now dealing with — that required very serious consideration in the department. Practically all of them that were enrolled were enrolled as full bloods, and the reports of the commission were affirmed by the department, there being no question in the case except the question of whether or not they were full bloods and that was a question that the officer in the field had to de- termine. Now, when we come to the consideration of the resident Choctaws, the class of cases about which you have just made inquiry, I shall be very glad to answer your question fully and submit the records in those cases. The schedule prepared by the commission containing the names of 1,923 identified Choctaw Indians, which accompanied the com- mission's report dated March 10, 1899, remained unacted upon by the department until just before the hour of 12 o'clock on March 4, 1907, when the Secretary arbitrarily disapproved the schedule. I^rom March lOj 1899, until after March 4, 1907, when the rolls were closed by operation of law, the Choctaw Indian whose name appeared on the McKennon schedule was held in a state of suspense for which he was in no wise responsible. It was a flagrant injustice for the administrative officers to have pursued the course they did with ref- erence to these Indians. The action of the Government officers is so inexcusable and indefensible in withholding action on this schedule that it smacks of a deliberate attempt to defeat the rights of its, Indian wards. Surely it can not be said in good conscience that these ignorant full-blood Indians must suffer because of the inex- cusable inaction of the administrative officers. In equity their rights are as complete to-day as when they applied to the commission for identification in 1899, and no one will deny the fact that if the de- partment had promptly acted upon that schedule the great majority of the persons whose names appeared on that schedule would have been enrolled and allotted lands. Their failure to secure their prop- erty was directly attributable to the failure of the administrative officers to properly perform their duties. 252 ENROLLMENT IN THE FIVE CIVILIZED TEIBES. While the enrollment and allotment work was in progress Con- gress, by the act of April 26, 1906 (34 Stat. L., 138), provided: That the rolls of the tribes affected by this act shall be fully completed on or before the fourth day of March, 1907, and the Secretary of the Interior shall have no jurisdiction to approve the enrollment of any person after said date. When the bill that became this laAV was pending before the House of Representatives the present chairman of the committee, Hon. John H. Stephens, entered an eloquent and vigorous protest against the fixing of an arbitrary time at which the work should be com- pleted, portraying with prophetic accuracy the very condition that subsequently occurred. Over his protest, however, the above pro- vision was passed by the House and became a part of the law. On January 12, 1907, the Secretary of the Interior transmitted to the Senate a letter of the Commissioner of Indian Affairs, wherein it was recommended that an extension of at least one year's time, from March 4, 1907, be granted for the completion of the enrollment work. In forwarding the letter of the commissioner the Secretary of the Interior said (S. Doc. 1139, 62d Cong., 3d sess., pp. 130-131) : The department concurs in the views of the Indian Office. Unless the time is extended many persons entitled to enrollment will not be enrolled. The Com- mission to the Five Civilized Tribes and the commissioner have been for years taking testimony and rendering decisions in cases involving complicated ques- tions of citizenship in these trbes, and some of the cases have not yet reached the department. While the department has disposed of most of the citizenship cases which have come before it, it apparently can not give due consideration to all the cases still pending to be submitted by the Commission to the Pve Civilized Tribes and the Indian Office within the time prescribed by the second section of the act of April 26, 1906 (34 Stats., 137). On March 1, 1907, the Secretary transmitted a further report to the Senate, tirging an extension of time in which to complete the work (S. Doc. 1139, 62d Cong., 3d sess., pp. 130-131). Again, on March 2, 1907, .the Secretary made a further report upon the subject. On March 4, 1907, the Secretary advised the Senate as follows (S. Doc. 390, 59th Cong., 2d sess.): In further response to Senate resolution dated February 28, 1907, relative to the number of Indian and freedmen enrollment cases pending before the Com- missioner to the Five Civilized Tribes on February 25, 1907, also in the Office of the Commissioner of Indian AfCairs on review and before the department, I have the honor to advise you that since my report of the second instant the department has received on March 2, 168 cases; March 3, 192 cases; March 4, 141 cases, making a total of .501 cases; aggregating 1,549 eases received by the Secretary since February 25, 1907, and making a total of 2,023 cases for examination and decision after February 25 and on or before March 4, 1907. It will be noted that between February 25 and March 4, 1907, was exactly 7 days in which time the department was required to adjudi- cate and determine 2,023 cases. Each case included the claims of from one to 75 claimants, and the record frequently consisted of hundreds of pages of testimony. Mr. J. W. Howell, an attorney in the office of the Assistant At- torney General for the Department of the Interior, was directed by the Secretary in 1908 to make an investigation of the enrollment work and submit a report thereon. Mx. Howell's report will be found in Senate Document No. 1139, Sixty-second Congress, third session, commencing at page 101 and extending to page 282. In ENEOLLMENT IN THE FIVE CIVILIZED TRIBES. 253 speaking of the condition of the enrollment work on March 4, 1907, at which time the jurisdiction of the Secretary terminated by opera- tion of law, Mr. Howell, at page 130, says : Section 2 of this act — referring to the act of April 26, 1906 — provided tliat the rolls of citizenship of the Five Civilized Tribes should be fully- completed on or before the 4th day of March, 1907, and that the Sec- retary of the Interior should have no jurisdiction to approve the enrollment of any person after said date. With the extra work imposed by the act itself in connection with the enrollment of the Jiew-bom children it became absolutely Impossible for the department to complete the work within the time prescribed, and to-day it may be said with perfect truthfulness that the word " complete " falls far short of describing the condition of the enrollment work and the citizenship rolls as of March 4, 1907. Now, Mr. Chairman, we may differ about conclusions of law, but there are certain facts that honest men can not differ about. There are a large number of cases which were never adjudicated and never have been properly considered by the department, and those claim- ants are now denied any right to share in this property, sokly be- cause there was a limitation of time in which the Secretary could adjudicate their cases, and the administrative officers did not get the cases there in time to have them considered. Mr. Carter. But those cases have been passed upon by the Dawes Commission ? Mr. Ballingee. Yes. Mr. Carter. The Dawes Commission had taken testimony in the cases, had they not? Mr. Baijlinger. Yes. Mr. Carter. And made a recommendation in them ? Mr. Ballinger. Yes. Mr. Carter. Were they decided in accordance with the recom- mendation of the Dawes Commission, or adversely to their recom- mendation ? Mr. Ballingbr. There was an order issued by the Secretary along in January, 1907, directing the oificers to affirm, as far as practicable, the decisions of the commission upon questions of fact. And the decisions of the commission as a rule were affirmed, although there were a large number of persons found entitled to enrollment by the commission whose decisions were disregarded during those closing days and the applicants denied. Mr. Carter. You mean there were a large number of persons who were recommended favorably by the Dawes Commission? Mr. Ballingee. Yes. Mr. Carter. Who were denied citizenship? Mr. Ballinger. Yes. Mr. Caetee. How many were there of those ? Mr. Ballinger. There was one class of at least 800. Mr. Caeter. That was not one case? Mr. Ballingee. That was one class of cases. Mr. Caeter. What class was that? Mr. Ballingee. That was the class of cases got before the citizen- ship court. „ . , . , ,1 T i Mr. Carter. Is that the class of cases in which the applicants were enrolled either by the commission under the act of June 10, 1896, or 254 ENROLLMENT IN THE FIVE CIVILIZED TEIBES. by the United States court on appeal from the decision of the com- mission and were subsequently denied by the citizenship court ? Mr. Ballingeb. Yes; a distinct class of the cases that went before the citizenship court. Mr. Caetee. Well, it was stated here the other day in these hear- ings by some one that the commission decided it had no right to pass upon the enrollment of a person who had been denied by the citizen- ship court. Mr. Ballingee. Well, that was only in cases where the person claiming had not been enrolled by the tribal authorities, but the commission always contended, so far as I know, that where the ap- plicant's name regularly appeared on the tribal roll, the enrollment having been by the tribal authorities, that in such cases as that the citizenship court never had any jurisdiction of the case; and in cases where the party had not been enrolled the commission held that the decision of the citizenship court was final and denied the claim. Mr. HuELEY. Mr. Chairnian, we are considering tlie claim of the Mississippi Choctaws to enrollment, and I submit that this line of argument that Mr. Ballinger is making now has no relevancy what- ever to the matter being considered by the committee at this time. Mr. Caetee. That is correct. The Mississippi Choctaw enroll- ment is the matter we are trying to dispose of first, and I really am inclined to think it is much better to keep that separate from the other matters. There is so much complication and complexity about these questions that for all parties concerned, and especially for those representing claims, it would be better for them to strip their arguments concerning Mississippi Choctaws of all extraneous issues. Mr. Badlingee. Now, of these 2,023 cases that I have referred to, that were acted upon by the department between February 25 and March 4, 1907, were the cases of a large number of persons claiming as Mississippi Choctaws. Mr. Htjeley. What number? Mr. Ballingee. It is impossible to say what percentage, but there were a number. Mr. Hueley. There is a complete record showing the number of those that were Mississippi Choctaws. It appeared in the hearings here last year. Not more than 6 persons out of that entire number were denied citizenship who claimed as Mississippi Choctaws. Mr. Ballingee. Mr. Hurley, not to question your word at all, but I think that your informant is in error. Mr. HuELEY. Have you the record to show that my informant is in error? This record was made in the hearings last year. I am talking about what appears in the hearing of last year, stated by Mr. Rogers, who was one of the men who made the rolls, who stated that there were cases of 6 persons who claimed as Mississippi Choc- taws considered during the last days of the enrollment matters by the department and were denied citizenship. Mr. Rogers, who made the record, knew what he was saying. You say you think he is mistaken. Do you know he is mistaken ? Mr. Ballingee. I know he is mistaken, without switching off into any argument with reference to Mr. Rogers, who was merely one laAv clerk of many handling cases in the Dawes Commission. Mr. HuEiJ3Y. He was the chief law clerk, and had absolute charge of those matters. ENROLLMENT IN THE FIVE CIVILIZED TRIBES. 255 Mr._ Balungee. Well, Mr. Hurley, I think you are mistaken as to his being the chief law clerk in reference to these matters. But what- ever Mr. Rogers may have stated to you, I know of my own personal knowledge that there were many Mississippi Choctaws whose cases were within that class; and further than that, as evidence of it, there were more than six enrolled by the provision contained in the appro- priation bill approved the other day that were within that class. Mr. Carter. That included people whose rights were not passed upon at all at that time. Mr. Ballingee. No; that included at least 12, and possibly 15, Mississippi Choctaws whose cases had been acted upon by the com- mission and were transmitted to the department too late for enroll- ment. Mr. Carter. I do not loiow about that, but the number that was enrolled by the recent Indian appropriation bill consisted mostly of persons who had never had their cases passed upon by any tribunal ; who had never made application for enrollment. Mr. Hurley. I have the record to which I referred a while ago. This is page 133 of the hearing before the Committee on Indian Affairs, House of Representatives, on House bill No. 19213. The hearings were conducted beginning February 14, 1912 [reading] : Mr. Rogers. Mr. Cantwell makes the statement that there was 68S persona who were identified during the last weel;: while the rolls were open, hut too late to remove. Mr. Cantwell. Passed upon in the last week. Mr. Rogers. Do you mean identified? Mr. Cantwell. Part of them were. Mr. Rogers. I want to make the record clear. There was no such number. There was not to exceed 6, I think, that were identified during the Inst week, too late to remove, and they are on the so-called list of 52. Mr. Ballingee. Well, now, in the very statement you have read he says there were not to exceed 6 identified during that period, but he does not say that there were not more than 6 whose cases were passed upon. Mr. Htteley. They were discussing the very identical proposition you are discussing now, and a reading of the record will show it. Mr. Ballingee. The statement that you have read shows that you are mistaken about it. In the very statement made by counsel for the Choctaws, Mr. Hurley, the correctness of my previous statement is borne out. Let me quote again the extract read by Mr. Hurley. Mr. Rogers asked the following question of Mr. Cantwell [reading] : Mr. Cantwell makes the statement that there were 688 persons who were identified during the last week while the rolls were open, but too late to remove. He is now speaking of the persons who were identified [reading] : Mr. Cantwell. Passed upon in the last week. Mr. Rogers. Do you mean identified? Mr. Cantwell. Part of them were. Mr. Rogers. I want to make this record clear. There was no such number. There were not to exceed six, I think, who were identified during the last week too late to i-emove, and they are on the so-called list of 52. So I repeat that Mr. Rogers made no mention of the number of cases that were passed upon by the department between February 25, 1907, and March 4, 1907. Mr. Carter. The list of 52 referred to there by Mr. Rogers con- taining ail of these names have been enrolled, have they not? 256 ENROLLMENT IN THE FIVE CIVILIZED TRIBES. Mr. Ballingee. That is correct ; they have been enrolled. So those were the persons found to be entitled to enrollment. Surely the claimants embraced in these 2,023 cases should not be denied their lawful rights by reason of the inability of the adminis- trative officers to consider and determine their cases within the time prescribed by law. Mr. Hurley. How many of these 2,023 persons do you now claim were Mississippi Choctaws ? How many Mississippi Choctaws were denied during the last week of the consideration of the enrollment question? You persist in saying 2,023. That number has no refer- ence to the case under consideration. Mr. Ballinger. Mr. Hurley, I have not said at any time that there were 2,023 Mississippi Choctaws whose cases were passed upon by the department during the time I referred to. Mr. Carter. At that time was the Dawes Commission authorized to enroll any persons or pass favorably upon the enrollment of any unidentified Mississippi Choctaws ? Mr. Ballingee. No; the Dawes Commission, as a matter of fact, did not enroll anyone. The Dawes Commission passed in the first instance on the case. The case was then transmitted to the depart- ment, and if the department approved the decision, then the Dawes Commission prepared its schedule containing the names of parties found to be entitled to enrollment and transmitted that to the depart- ment, and the department approved it. That constituted enrollment. Mr. Caetee. The Dawes Commission was authorized to identify Mississippi Choctaws, was it not? Mr. Ballinger. No ; identification was complete only when ap- proved by the Secretary. Mr. Carter. But the Dawes Commission was authorized to identify Mississippi Choctaws, subject to the approval of the Sec- retary of the Interior, was it not? Mr. Ballinger. Yes; that is correct. Mr. Caetee. Now, the DaAves Commission was authorized to en- roll Mississippi Choctaws subject to the approval of the Secretary of the Interior, was it not ? Mr. Ballingee. The Dawes Commission had no authority to enroll any person. It acted in the first instance, and the decision of the Secretary or the approval of the Secretary constituted the enroll- ment. Mr. Carter. Well, now, then the Dawes Commission was author- ized to recommend for enrollment to the Secretary of the Interior the Mississippi Choctaws? , Mr. Ballinger. That is correct. Mr. Cari-ee. And was the Dawes Commission authorized to recom- mend for enrollment to the Secretary of the Interior unidentified Mississippi Choctaws? Mr. Ballingee. No ; the person must have been first identified be- fore the Dawes Commission could have placed their names upon the schedule which was subsequently approved by the Secretary, and that constituted enrollment. Mr. Caetee. Then enrollment could not take place until after identification ? Mr. Ballingee. That is correct. ENROLLMENT IN THE PIVB CIVILIZED TEIBES. 257 Mr. Carter. Then no Mississippi Choctaw claimants could have been included in the 2,000 of which you speak as having been recom- mended by the Dawes Commission to the Secretary of the Interior unless they had been identified? Mr. Ballinger. No; Mr. Carter, you are mistaken. This list of 2,023 cases that I have made reference to were cases that had been acted.upon by the Dawes Commission, and the report of the Dawes Commission, accompanied by the record in the case, transmitted to the Secretary for review and final action by the Secretary. That was a preliminary step to identification. If he found the applicant en- titled, then the party was identified. Then followed enrollment if the Mississippi Choctaw claimant had complied with the terms and re- quirements of the law, namely, that he remove to the Choctaw Nation within six months after identification and made a bona fide settle- ment on the land for one year, and then submit proof of that to the Dawes Commission, and then he was enrolled. Mr. Carter. Well, was this list of 2,000 people submitted to the secretary by the Dawes Commission for final enrollment or was it submitted for identification? Mr. Ballinger. This list of 2,000 cases were cases that were sub- mitted to the Secretary for investigation by him and final action on the records of the cases. Mr. Carter. For " final action," identification, or enrollment ? Mr. Ballinger. In the Mississippi Choctaw cases it was for identi- fication. Mr. Carter. You don't mean to say that the whole 2,023 people were submitted for identification? Mr. Ballinger. No; I have tried to make that very plain, that there were only of these 2,023 cases probably not to exceed 400 or 500 Mississippi Choctaw cases, possibly not that many. Mr. Carter. Now, as a matter of fact, when these cases were sub- mitted were they not all submitted for final enrollment, rather than for identification? Mr. Ballinger. No ; they could not be enrolled until they had been identified. Mr. Carter. Did not the rolls close on March 4, 1907, a few days after that? Mr. Ballinger. Certainly, and that is exactly the point I have been trying to make, that in these cases here it would have been a physical impossibility, had the cases been decided favqrably to the claimants, to have had them enrolled by March 4, 1907. Mr. Carter. Now, it ought to be a very easy matter to determine if such cases were submitted for identification or whether for final action and enrollment. You ought to be able to give us definite information as to how many of these people there were. You ought to be able as an attorney to show the facts relating to that. Those are all matters of record. Mr. Ballinger. Yes ; some of them are matters of record, but there are probablv — T do not speak with absolute certaintv, but there are probably 75,000 enrollment cases from the Five Civilized Tribes, smd to ascertain the exact cases that came to the department between February 25 and March 4, 1907, would necessitate a search of the 75,000 cases. 64969—15 17 258 ENROLLMENT IN THE FIVE CIVILIZED TRIBES. Mr. Carter. How did you get the exact number of 2,023? How do you know that number to be correct ? Mr. Ballinger. The department so advised the Senate in an offi- cial report. Mr. HuELET. Did the department so advise the Senate, or did Mr. Howell so advise the department? Mr. Ballinger. I have read the response of the Secretary, trans- mitted to the Senate, of March 4, 1907, and printed as Senate Docu- ment No. 390, Fifty-ninth Congress, second session— — Mr. Hurley (interposing). That is Mr. Howell's report? Mr. Ballinger. No ; it is the report of the Secretary. In that re- port the Secretary of the Interior advises the Senate of the number of cases acted upon during that period. Mr. Carter. Let us see that report. Have you got it there? Mr. Ballinger. Eight here. Mr. Carter. Have you got the report itself? Mr. Ballinger. I have it in my office. We can send right up to the document room and get the official document. It is Senate Docu- ment No. 390, Fifty-ninth Congress, second session. Mr. Carter. Now, Mr. Ballinger, you come here and tell the com- mittee that there are certain persons on a list, which I have always understood to be a list of persons who were submitted for final en- rollment, and you state that a part of that list are not names of per- sons submitted for final enrollment but names submitted for identifi- cation as Mississippi Choctaws. You are representing the Missis- sippi Choctaws and it is your business to furnish the committee with that record definitely, so the committee can see how many of them there are; and as a lawyer I think you ought to be able to see the importance in the interest of economy of time and accuracy of having these records at your hand, where you can put them into the record. The burden of responsibility is certainly on you to show the com- mittee that a part of that list was a list for identification and not for final enrollment, and to show the number that was submitted for identification and the number that was submitted for final enroll- ment. It ought not to be out of order at all to present their names to the committee. Mr. Ballinger. Mr. Chairman, the request that you make it would be practically impossible to comply with. Mr. Carter. Suppose we decided to enroll these people, how could we enroll them without that information? Mr. Ballinger. I am going to come right to that proposition. We know as a matter of fact that from the Five Civilized Tribes -there were 2,023 cases that came to the department and were prin- cipally considered and decided between February 25, and March 4, 1907. Now, it seems to me that it makes no difference whether there are 50 or 500 Mississippi Choctws in that class. All of those cases coming within that group ought to be reconsidered if any are recon- siderd, and when you reach that group in reconsideration you would include necessarily any Mississippi Choctaw cases. Mr. Carter. We have reached it right now. We are right at the point now, and I would like to have that information furnished us. Mr. Ballinger. I have stated approximately to the best of my knowledge the number of Mississippi Choctaws that were involved. EKEOLLMENT IN THE FIVE CIVILIZED TRIBES. 259 Mr. Carter. "Would you expect from that kind of a statement that anybody could be enrolled? I assume that the thing you would like to have done, above all others, is that this committee would pass a bill saying that these people are entitled to enrollment. You would rather have that than rejection or anything else? Mr. Ballingee. Yes. Mr. Carter. Could this committee, from the statement you have made and the information you have furnished, ever possibly enroll anybody in any case, or recommend the enrollment of anybody in any shape or form, with any reasonable degree of intelligence and accuracy. Mr. Ballinger. I am not asking this committee, and I would not put myself in a position of asking this committeee or Congress by legislative act to enroll all the persons who cl%im to come within this list of 2,023 cases. All that I am asking is that they be investi- gated, and whatever ones are found to be entitled to it, be enrolled. Mr. Carter. That is the very thing I am trying to get ydu down to. I am trying right now to get you down to cases. I am trying right now to get you down to the cases of the Mississippi Choctaws that were enrolled in this list that you talk about, for final enrollment, and the number and names, if possible, of those who are enrolled for identification. Mr. Ballinger. Why, Mr. Carter, if that information is desired, nothing short of a report from the department would do, and that could be easily obtained and would state the exact facts. If that is desired, the department can advise you with reference to that, and I suggest that they be called upon. Mr. Carter. Do you think that this committee could act intelli- . gently at all upon those cases unless they knew what part were sub- mitted for enrollment and what part for identification ? For instance, the committee might take the ground, naturally, that the fellow who was not identified had less right to a charge of mistreatment than th-e one who had been identified and submitted 'for final enrollment. But how is the committee, from your general statement here, going to distinguish among these classes of cases at all ? You simply state that there were 2,023 cases submitted, some of whom were Mississippi Choctaws for final enrollment and some were Mississippi Choctaws for identification. That does not tell the committee anything at all. ■Mr. Ballinger. Mr. Chairman, I have tried to make myself plain here that none of those cases were cases for final enrollment. Mr. Carter. Why on earth did you not say that long ago ? Mr. Ballinger. All of them that were Mississippi Choctaws, I think I have stated over and over again, all of them were cases for identification. Not one of them was a case for final enrollment. Mr. Carter. Well, were the 2,023 cases for identification? Mr. Ballinger. No; there was a part of them that were Mississippi Choctaws, and every Mississippi Choctaw case in that entire list was a case for identification, not a case for enrollment. Mr. Carter. And there was not one Mississippi Choctaw in that class for enrollment ? Mr. Hurley. No Mississippi Choctaws were enrolled during that closing period. Is that what we are to understand ? Mr. Ballinger. Every case that I refer to here was a case present- ing an application for identification. Mr. Carter. Not for enrollment ? 260 ENROLLMENT IN THE FIVE CIVILIZED TRIBES. Mr. Ballingee. I am coming to that. If they had been identified, then they would have been enrolled at a subsequent date when they had made their proof, but it was impossible Mr. Carter (interposing). I understand that. Now, if you want the record to show that all the cases of the Mississippi Choctaws included in this 2,023 were for identification, and not for final enroll- ment, that settles that much of it. Mr. Ballinger. I want the record to show that, because that is the fact. Mr. Carter. Then there was not any recommendation in this re- port of any Mississippi Choctaw for final enrollment, but the recom- mendation was for identification? Mr. Ballinger. Mr. Carter, I want the matter to. stand just ex- actly as I have stated it, namely, that whatever Mississippi Choctaw tlaims there were were claims for identification, which is a pre- liminary step to enrollment. Mr. Carter. At last we are getting you right down to something definite. It ought to be very easy to distinguish between an appli- cation for identification and one for enrollment. It ought to be easy to distinguish between a recommendation of the commission for identification and for enrollment. So in that case it ought to facilitate and make much easier your labors that j'ou speak of, that will be so onerous, in getting before this committee the exact num- ber of Mississippi Choctaws that were included in that 2,023 cases. All you have to do is to separate those recommended for identifica- tion from those recommended for final enrollment, and you have the Mississippi Choctaws in a list to themselves. What I want is for you to furnish to this committee the number of Mississippi Choc- taws that were presented for identification in this list of 2,023 names, all the balance having been presented not for identification, but for final enrollment. There was no law requiring this identification ex- cept of Mississippi Choctaws, was there? Mr. Ballinger. That is correct. Only the Mississippi Choctaws were identified. Mr. Carter. Then it ought to be easy to distinguish a ISIississippi Choctaw from the other cases, and I take it that you will find in the Interior Department that the recommendations for identification of Mississippi Choctaws are in a jacket to themselves. I do not think they would be mixed up with the application for the enrollment of other people. When they were identified they were placed on a sepa- rate roll. Mr. Ballingee. Our trouble here is this — I am not spealdng about the cases that are recommended for identification or the cases that are recommended for enrollment. I am speaking of the cases that were transmitted to the department for the determination by the department as to whether or not they were entitled to idenification. Now, Mr. Cantwell, who claims to have made some investigation in that matter, says that there were over 600 of this list within this class of cases. In my opinion there were approximately 500 such claimants. Now, as to whether or not we are exactly right, or as to whether or not we are a hundred off one way or the other 1 am not able to say, but if that is essential to the proper determination of these claims, I will try and ascertain it and furnish it to you. ENBOLLMENT IX THE FIVE CIVILIZED TRIBES. 261 Mr. Caetek. I should think it would be very essential for a man to distinguish between the applications for identification and the applications for final enrollment. I should think that in the de- termination of the case of a Mississippi Choctaw the first thing you have to do is to separate him from the fellow who does not claim to be a Mississippi Choctaw. Mr. Baixinger. I understand that, and I have endeavored to sepa- rate those by stating that of this list of 2,023 cases there were claims of approximately 500 Mississippi Choctaws. I do not mean to say that there were 500 Mississippi Choctaw cases, but I mean to say there were of this number, namely, 2,023 cases, cases involving the rights of about 500 Mississippi Choctaws. They may have been in a dozen cases and they may have been in 100 cases. Mr. Carter. Now, you say 500. What do you base that state- ment on? Mr. Ballinger. I base that statement upon an estimate of those cases made by me in 1910 when in Muskogee and after an examina- tion of the records, and also the statements at that time of the clerks who Avere engaged in that work. Mr. Carter. In your investigation then, you find 500 of the 2,023 to be Mississippi Choctaws recommended for identification? Mr. Ballinger. No; I do not want to say that I found that there were 500 applications for identification passed upon by the commis- sion. The decisions may have been against them, and they may have been for them. The cases were transmitted by the commission to the department with a recommendation one way or the other for final' action by the department. Mr. Carter. You found 2,023 applications to contain the names of 500 people who had been passed upon by the Dawes Commission for identification? Mr. Ballinger. No ; I do not want to put it that way. I did not say that they were passed upon by the Dawes Commission favorably to the applicant. Mr. Carter. I did not say favorably; I said passed upon by the Dawes Commission. Mr. Ballinger. Yes; that is correct. Mr. Carter. Now, then, what evidence have you that there were 500? Mr. Ballinger. I made a statement a few moments ago that in 1910 I made a pretty thorough examination of the records of the commission in the cases in which I was interested. After an exami- nation of those records at that time, aided by former clerks of the commission whom I employed to help mo go through those records, we estimated that there were approximately 500 of those ^Mississippi Choctaws in that class. Mr. Carter. Now, how did you come to estimate. I want to get away from estimates; I want to get at something definite. How did you come to estimate that there were 500? What did you base your estimate on? Mr. Ballinger. Mr. Carter, the reason that I estimated in those cases and did not in the other cases was this, that in the other cases none of them came within the same general group as is the case with the Mississippi Choctaws; they were separate cases. In those cases it is necessary to take up each individual case and brief it. 262 ENROLLMENT IN THE FIVE CIVILIZED TBIBES. Mr. Carter. Didn't you have the cases before you when you made that investigation? Mr. Ballinger. Not all of these Mississippi Choctaws. Mr. Carter. Then, how did you make an estimate if you did not have them before you and did not know ? Mr. Ballinger. From the files of the Dawes Commission, without going to the particular jacket in each case. Mr. Carter. The files showed how many there were in each case, did they not ? Mr. Ballinger. Yes; in some cases there were one, some cases a dozen, and sometimes 50 or 60. Mr. Carter. Mr. Ballinger, when you were going over these things, how did you arrive at an estimate? I want to get at something defi- nite- How did you come to estimate that 600 ? Mr. Ballinger. Mr. Carter, the reason I estimated in these cases and did not in the other cases was this, that none of the other cases came within the same general group as is the case with the Missis- sippi Choctaws. Mr. Carter. Did you not have them before you ? Mr. Ballinger. There were scattered cases, and in the other cases it was necessary to take up each case and go over it. Mr. Carter. Again, did you not have the cases before you? Mr. Ballinger. Not all the Mississippi Choctaws. Mr. Carter. How did you estimate if you did not have that before you? Mr. Ballinger. Mr. Carter, I based it upon the files of the Dawes Commission, without going to the particular jacket of each case — ^the record of each case. Mr. Carter. The files show how many there were in each case, do they not ? Mr. Ballinger. Yes; in some cases there was 1; in some cases a dozen ; in some cases as high as 50 or 60. Mr. Carter. Would it not have been just about as much trouble for you to have made that estimate as for you to have really counted the cases on the jacket? Mr. Ballinger. If that is considered by the committee material to the determination of this case I will get the information and submit it here. Mr. Carter. Do you not think that it is very material ? Mr. Ballinger. If you now consider it material I will give it. Mr. Carter. Evidently it is not only material but absolutely es- sential. Do you suppose this committee would ever be able to get such a recommendation through the House without being able to show the House how many people it was dealing with ? You should know better than to ask me a foolish question like that, What would be the first question to be asked of this committee? How many people it was dealing with. I am not accustomed to tak- ing matters up on the floor of the House without being prepared to answer simple questions of that kind, and I am not going to even consider taking this matter into the House until we get what we consider material in relation to it. Mr. Ballinger. I will be very glad to furnish it to you. Mr. Carter. It ought to be furnished. Do you not think, as an attorney, that you ought to put this matter in about Mr. Howell and ENROLLMENT IN THE FIVE CIVILIZED TKIBES. 263 agree to furnish it to us? I hope you may see the importance of laying out something definite in front of us and not ask us to take so much for granted. Do you mean to say that when a law clerk passes upon a matter he does not put his initials on it. I have yet never seen a case where a law clerk passed upon a case without placing his initials on his report so that the report might be identi- fied, and if there is any department that does not have that rule it certainly conducts business in a most desultory manner. Mr. HuELEr. I have had considerable practice before the Interior Department, both as an attorney for the Choctaw Nation and before I became an attorney for the Choctaw Nation, and I have never re- ceived a communication from that office that I was not able to trace to its author from the initials that appeared upon it. Mr. Carter. Not only is that so in the departments, but in every Indian agency in the country. You may proceed with your argument, Mr. Ballinger. Mr. Ballinger. In these 2,023 cases received at the department that it is alleged were adjudicated within seven days prior to March 4, 1907, were the cases of a large number of persons claiming as Mis- sissippi Choctaws. Surely these Mississippi Choctaw claimants em- braced in these 2,023 cases should not be denifed their lawful rights by reason of the inability of the officers to consider and determine their cases within the time prescribed by law. Here the fault was with Congress, the guardian, not with the claimants. Can the guar- dian set up its own dereliction as a valid defense against the claim of its wards? The proposition is not debatable. The United States is responsible, and that responsibility should be frankly and honor- ably assumed, and the injury sustained by the wards of the Govern- ment speedily rectified and proper reparation made. Mr. Bond. Do you contend, Mr. Ballinger, that the Mississippi Choctaws are the wards of this Government? Mr. Ballinger. Yes. It would therefore appear that there are four classes of Mississippi Choctaws who are entitled to consideration at the hands of Congress. They are, first, those persons who were identified on the McKennon roll and who have not been enrolled. Mr. Carter. Were those on the McKennon roll? Mr. EiCHARDSON. There were 539 of the McKennon roll who were not subsequently included in the identified list. Then 545 were sub- sequently included in the identified list. Half of those were subse- quently identified. Mr. Ballinger. The second class are those persons who were iden- tified under the act of July 1, 1902, numbering 1,089, and who were not enrolled; third, the full-blood Choctaws who have never been identified and who reside outside of the Choctaw Nation; fourth, the children of those Choctaws who were duly identified and enrolled prior to March 4, 1907, and which children were born prior to March 4, 1906. As to such children, they were clearly entitled to enrollment under the law, and their failure to secure such enrollment and prop- erty rights was due, as Mr. Howell says, largely to a misconstruction of the law by the commission. To what extent these Indians are entitled to share in the common property of the Choctaws is a matter for Congress to determine. The bill H. E. 7926 provides for the enrollment of these four classes, 264 ENROLLMENT IN THE EIVE CIVILIZED TEIBES. and further provides that they shall receive the sum of $1,040 per head in full satisfaction of their claim, and that said money shall be expended for their benefit by the Government officers. It would seem as though it would be only just and fair that they should re- ceive at least that much recognition in the division of the tribal property. It has been suggested during the course of this discussion that by reason of the act of April 26, 1906 (34 Stat. L., 137), the persons whose names appear on the final approved rolls have vested interests in the undisturbed tribal property. I do not understand that a right in tribal property can become vested until partitionment occurs. But if rights could be vested in tribal property prior to partitionment Congress, by the act of April 26, 1906, expressly protected the rights of all persons who were entitled to participate in this estate. Mr. Carter. Who suggested that, Mr. Ballinger? Mr. Ballixger. I think that has been stated in the debates in the House several times — that those enrolled were the exclusive owners of that property. Mr. Carter. They might be owners of it, but nobody claimed that the ownership extends further. Mr. Ballinger. I say that if rights could vest in tribal property prior to partitionment Congress, by the act of April 26, 1906, ex- pressly protected the rights of all persons who were entitled to par- ticipate in this estate. Section 16 of that act provides with reference to allotments: 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 Seminole Tribes, the residue of lands in each of said nations 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 proceeds of such sales deposited in the United States Treasury to the credit of the respective tribes. It conclusively appears that allotments were not made to all the Mississippi Choctaws who were entitled to allotments under exist- ing law, whereas the statute provided that before the residue lands should be sold allotments should be made to every such person. Again, it is provided in section 17 : That when the unallotted lands and other property belonging to tlie Choc- taw, 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 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. There was an express provision of law that the funds should not be distributed until all just charges against the funds of the re- spective tribes have been deducted therefrom. Under this provision the rights of any person improperly omitted from the tribal rolls are fully protected, for his would be a just claim against the tribal funds. Congress never intended that the property of this tribe, or any other tribe of Indians, should be distributed solely among that class ENROLLMENT IN THE FIVE CIVILIZED TBIBES. 265 that was sufficiently intelligent to protect its rights and to the ex- clusion of the ignorant and helpless full-blood Indian. The whole theory of the Federal Government in its dealings with the Indians has been to accord aid, assistance, and protection to the incompetent Indian who was incapable of protecting his rights and caring for himself and family. In the case before us it clearly appears that under the laws enacted by Congress and the administration of those laws by the officers of the Government that the protection Congress intended to afford the ignorant and helpless Indian has not been afforded him. The question is now, will Congress, knowing the facts, correct this injustice and right this wrong. The matter appears to be too plain for further argument. Mr. Chairman, as I stated to the committee the first day upon which I made my appearance, my appearance was made almost en- tirely under a contract in the name of M. M. Lindly, executed in 1896, under which Lindly, Field & Howe have prosecuted claims of the Mississippi Choctaws down to date. Howe is now dead; Lindly lives in Oklahoma, and Mr. Field is here, and they requested me to present matters for their clients for them. Mr. HuRLET. W;is not the Lindly contract a ten-year contract? Mr. Ballin'Ger. No, sir. Mr. HuELET. Was it made in 1896? Mr. Ballingee. Yes, sir. Mr. HuELET. And did it not expire in 1906? Mr. Balungee. No, sir; I said it was Mr. Htjeley (interposing). Do not the records of the Court of Claims in the Winton case show that it is a fact that you had a 10- year contract, which expired in 1906? Mr. Ballikgee. It is impossible for me to submit a copy of the original contract taken in the name of M. M. Lindly, under which my associates proceeded. Mr. Caetee. Why not? Mr. Ballingee. The original copy, or other copies, of that docu- ment disappeared along about the time of Chester Howe's death in 1908, and we had to submit much parole testimony, the testimony of the officers of the Indian Office and other officials of the Government as to the contents of that contract, and I hope that before the com- mittee acts on this matter we will have a finding by the Court of Claims with reference to that contract, and I want to submit that portion of the court's findings in regard to this contract to the com- mittee in lieu of the contract. Mr. Caetee. That is your contract with the Mississippi Choctaws? Mr. Ballingee. Our contract with the Mississippi Choctaw^, under which I proceeded ? Mr. Caetee. How many of them do you represent? Mr. Ballingee. Under their contract— Lindly-Field-Howe con- tract — they were to represent the Mississippi Choctaws. Mr. Caetee. But what gave them the authority to represent the Mississippi Choctaws? Mr. Ballingee. They took a general authonzationr Mr. Cartes. From whom? Mr. Ballingee. From the representatives of the Mississippi Choc- taws. Let me explain. Meetings were held in various places and attended by the Indians, and they designated men of intelligence to 266 ENEOLLMENT IN THE EIVE CIVILIZED TRIBES. act for them as their representatives, and those representatives exe- cuted a contract with M. M. Lindly, which was duly acknowledged before judges of courts of record, and the original of which was filed with the Interior Department at that time, but the department at that time held that it did not have jurisdiction over the Mississippi Choctaws, and the contract was returned to Mr. Howe. Mr. Carter. What right did these gentlemen have to bind all the Mississippi Choctaws? Mr. Ballinger. It was in the nature of a community contract. Mr. Carter. How are we ever going to get at just whom you repre- sent, Mr. Ballinger? Suppose one of those fellows comes up, and you should try to enforce your contract, and he should say he was not in one of those meetings. Could you hold him ? Mr. Ballinger. That is a matter we have been thrashing out in the courts. The contract under which I am proceeding — that is, under which Lindly, Field & Howe proceeded — is the same kind of a contract under which, I take it, Mr. Richardson is now pro- ceeding. He has proceeded under a community contract, following the action taken by my associates back in 1896. Mr. Richardson. That contract is not in a class with my contract. Mr. Ballinger. It being a community affair, and all the parties in the community being parties Mr. Carter. Whom do you represent? Mr. Ballinger. We claim to represent those on the McKennon roll, the full-bloods remaining down there, as well as those identified under the act of July 1, 1902, as well as their children and the chil- dren of the enrolled Indians. Mr. Carter. You claim to represent all who are not enrolled? Mr. Ballinger. All who were not enrolled. Mr. Carter. All the Mississippi Choctaws claiming enrollment who were not enrolled ? Mr. Ballinger. All the Mississippi Choctaws claiming enrollment who were not enrolled. Mr. Carter. Do you represent the " Red Bones " ? Mr. Ballinger. We are claiming for the full bloods and the children of the enrolled Indians as well as the McKennon roll In- dians. Mr. Chairman, I have taken probably 50 powers of attorney with these Indians in Mississippi, and I have a copy of the power of attorney which I would like to put into the record [handing paper to Mr. Carter] . Mr. Carter. You have not got one of those which has been signed? Mr. Ballincser. That is exactly the same thing, except the filling in of the name. Mr. Carter. Suppose you make a copy of one of the contracts which has been signed, and mark it " signed " and put it into the record and let us ha^■e that. Mr. Ballinger. That is the form of power of attorney which was decided by me in view of the fact that objection was made to the question of attorneys' fees, and there is no mention of any amount of attorneys' fees, and under the present law declaring all contracts void a power of attorney is the only instrument that can be law- fully taken. This is merely an authorization to appear and rep- resent the parties. ENEOLLMENT IN THE FIVE CIVILIZED TEIBES. 267 Mr. HuELET. Mr. Ballinger, on page 3172 of the record of the Court of Claims in the Winton case appears what purports to be Lindly's contract with the Mississippi Choctaws, and a portion of that reads as follows: Be it resolved, That M. M. Lindly, of Soutli McAlester, Ind. T., be employed as counsel aud attorney in fact and at law of said bands of the Choctaw Nation now resident in the States of Mississippi, Alabama, and Louisiana, and that said employment be for the term of 10 years from the date of the contract made hereunder, and that it be the purpose of securing the services * * * the procurement of the * * *. Is that a portion of the contract under which you are operating? Mr. BalUingee. Yes; Mr. Hurley, that is a portion of a muti- lated form that was found in the office of Chester Howe, and this may or may not have been a copy of the original. It was put in the record for what it was worth. Mr. Htieley. You stated a while ago that you were positive that the contract under which you and your associates acted was made in 1896 and was not for a term of 10 years. Mr. Ballinoeb. I have always so understood from all the par- ties, that it was not for a term of 10 years. Mr. Hurley. You offered that contract in the Court of Claims as evidence of the fact that you had such a contract, that Lindly had such a contract ? ' Mr. Ballingee. That was offered in evidence in the Court of Claims to establish the fact that they did have a contract. Mr. IltTELET. You want it noAv to establish the fact that you did have a contract, but you do not want it to establish the fact that it was for the 10-year term? Mr. Ballin.ger. I do not know. Since you have called my atten- tion to the mutilated portion — I had not recalled that. Mr. EiGi-iARDsoN. Under a section of the Revised Statutes, is it not one of the requirements that the contract must be for a fixed term of years ? Mr. Ballinghk. That is true. Ml'. Richardson-. Then for what term of years, according to your information, did the contract run? Mr. Ballinger. I confess I can not say. That copy there, that mutilated portion of a copy, appears to be for 10 years. Mr. Richardson. Did not Mr. Field, who was your client in the Winton case, in testifying in reference to this exhibit which was offered in evidence — did he not testify that it was one of the copies of a contract, the contract having been executed in triplicate, and say that it M-as found in an envelope bearing certain memorandum by Commissioner Jones? Mr. Ballingee. I think he so testified, that he found it in an envelope with some writing that appeared to be in the handwriting of Mr. W. A. Jones, former Commissioner of Indian Affairs. I do not think he testified that it was a copy of the original instrument. Mr. Richaedson. Did he not testify that it was a mutilated part of one of the original instruments ? . . , . . Mr. Ballingee. Mr. Richardson, you are dealing with a technical proposition. Under the law every contract has been declared void, so that no man to-day could have a contract under which he could represent a party and enforce the collection of his fee, if that law is 268 ENROLLMENT IN THE FIVE CIVILIZED TKIBBS. valid. No one has a contract with one of these Indians, under ex- isting law. Therefore, I take it that even if the Lindly contract had expired I would stand before this committee in exactly the same light as somebody who claimed to have an instrument that was a contract and which had by law been declared void. Mr. EiCHARDSON. The question I was asking was one in regard to the authority to appear for the people. Do you mean to say that any person having a contract can have a moral right to come before this committee and build up a claim against these Indians Mr. Ballingee. I mean to say this: That from 1896 down to the present time, Lindly, Field, and Howe, or myself, have represented these people, and that it was largely through their efforts that as many of them as are now enrolled were enrolled, and whether the contract Avas for a term of 10 years or not is immaterial to me. The services now being are a continuation of the previous services and in furtherance of the rights of these full-blood Indians. Mr. Richardson. Do you mean to say that after 1906 Mr. Lindly has done anything to advance the claims of Indians whose claims are now pending? Mr. Ballingee. Mr. Howe and Mr. Field did, and I have. Mr. RiCHAEDSON. From 1906 to 1908, when Mr. Howe died, what did he do, if anything? Mr. Ballingee. Mr. Chairman, this is a matter of record in the Court of Claims in a hardly fought case now pending in that court, and I would prefer to wait until the judgment of that court is pro- nounced and file that in the record here and let it speak for itself. Nothing that I could testify to here would throw any light on it one way or the other. It is only my individual opinion. Mr: EicHAEDsoN. The case in the Court of Claims was brought under the act of 1908, and has no relation whatever to services ren- dered after 1906, so that the question I am discussing is a question of the authority of the attorneys having this contract to appear here and subject these Indians to a liability for fees. Mr. Ballingee. The provision of law under which my associates intervened in the Court of Claims was enacted in 1908, and covered the entire enrollment period. Mr. RiCHAEDSON. Mr. Ballinger, by what instrument was this con- tract assigned to you ? Mr. Ballingee. It never has been assigned to me. Mr. RiCHAEDSON. Has there been any written agreement between you and Mr. Lindly, who was the attorney named in that contract, by which you were authorized to represent the parties ? Mr. Ballingee. No, sir. Mr. RiCHAEDSON. By what authority Mr. Ballingee (interposing). Just a moment. I have letters from Mr. Lindly clothing me with the authority. Mr. RiCHAEDSON. At what date or period were those letters or any authority given you ? Mr. Ballingee. Those letters are several years old. Mr. RiCHAEDSON. Were they written before or after 1906? Mr. Ballingee. They were subsequent to 1906. Mr. RiCHAEDSON. Then, if it is true that this contract, which is limited to 10 years from 1896, is a part of a contract whicli Mr. ENEOLLMBNT IN THE FIVE CIVILIZED TRIBES. 269 Lindly held, during the period of that contract you had nothing to do with it or under it ? Mr. Ballinger. The contract you refer to was limited to 10 years from the time it became operative. It was to be approved by the department. The department declined to approve it on the ground that at that time it had no authority to approve the contract. So that, as a matter of fact, the limitation has never commenced to run and the contract is as good to-day as it has been at any time, except for the provision in the act of August 1, 1914. Mr. EiCHAEDSON. Now, you have introduced a power of attorney in blank, not signed, which you say you have with about 50 of these enrolled or identified Indians? Mr. Ballinger. Yes, sir. Mr. EicHAEDSON. Is that similar in form to this power of attorney made out to be signed by Ellen Tookolo [handing paper to Mr. Ballinger] ? Mr. Ballinger. That is correct. I am perfectly willing to insert this power of attorney in the record in lieu of the one I referred to a while ago. (The power of attorney referred to is as follows:) Power of Attorney. State of Mississippi, County of Neshoia, ss: I, Ellen Tookolo, hereby constitute and appoint Webster Ballinger, attorney at law, of Washington, D. C, my true and lawful attorney for me and in my name, place, and stead, to take all lawful steps by him deemed necessary to secure for me and my minor children our separate individual property rights as Mississiiipi Choctaw ludi/'ns in the common property of the Choctaw Nation, situated in the State of Oklahoma, and to secure our separate enrollment on the final citizenship rolls of said nation, hereby conferring upon my (our) said at- torney full power and authority to verify any petition, In my ( our ) name — , to re- eene nud reciept for in my (our) name — , or in the name of my children, any drafts, warrants, or other papers issued in payment of said claims, and to do and perform all and every act and thing whatsoever requisite and necessary to be done in the premises as fully and to all intents and purposes as I or they might or could do if personally present at the doing thereof, with full power of SI bftitntion ai>d rexocntion. I (we) hereby confirm all that my (our) said attorney, or his substitute, may or shall lawfully do or cause to be done by virtue hereof, hereby annulling and revoking all former powers of attorney or authorizations. (X) Holt Cross. State of Mississippi, County of Neshoha, ss: This day personally appeared before me the undersigned authority, Ellen Tookolo, the grantor In the foregoing power of attorney, and in due form of law £iCknowledged the execution of said power of attorney for the purposes therein expressed and contained. Given under my liiiud and seal of office this day of , A. D. 1913. Notary Puilio for . My commission expires . Full blood. Mr. EiCHAEDSON. Was that an inclosure in this letter, which was apparently written by you to Mr. Elan Tookolo [handing letter to Mr. Ballinger] ? Mr. Ballinger (after examining letter). Yes, sir; I think that was a form of letter that was sent out from my office. 270 ENBOLLMENT IN THE FIVE CIVILIZED TEIBBS. Mr. KiCHAEDSON. This letter commences with this statement: In view of the provision contained in the Indian appropriation bill approved June 30, 1913, relating to contracts, I deem it expedient to obtain from you a further authorization to prosecute your claim as a Mississippi Choctaw. Did that refer to this provision in the Indian appropriation act of 1913? Mr. Ballingee. Yes, sir ; that is the provision it related to. Mr. Richardson. In what respect did that provision require the execution of such a document at the time these letters were sent out? ]\fr. Ballingee. I never have understood and do not understand new the exact force and effect of this provision of law. It may be construed in any one of half a dozen ways. It may be construed as relating to any person having Indian blood. It saj'^s "no contract made with any Indian." Mr. Cartee. Suppose you read it. Mr. Ballingee. " No contract made with any Indian • Mr. Cartee. That is the Gore amendment in the act of 1913? Mr. Ballingee. Yes. I confess I do not know how far that pro- vision goes. It has never been construed by the cdurts. Mr. Richardson. How did these contracts or powers of attorney which you sent these people to sign obviate the condition which that provision has made ? Mr. Ballinger. The authorization that I sent them merely author- izes me to appear for them, and it goes no further. . It made no pro- vision for any payment of any fee, and in that way could not be con- strued as in any way affected by this law. Mr. Richardson. Then, as far as payment of any fees were con- cerned, this did not create any obligation or liability ? Mr. Ballingee. My idea, Mr. Richardson, has always been that where services were actually rendered for these parties that Congress would authorize a reasonable compensation to be paid to their attor- ney. It has that power, and I have always believed it would do so, and I did not care to stand or proceed under a contract which was possibly declared void hj^ law, as every contract up to the present time submitted to this committee undoubtedly was, to say nothing about a provision contained in the Indian appropriation bill which has just been approved — the act of August 1, 1914. _ _ Mr. RiCHAEDSON. In reference to your statement in this letter that " I deem it expedient to obtain from you a further authorization to prosecute your claim as a Mississippi Choctaw," what previous au- thorization had you received from Elan Tookolo to prosecute his claim ? Mr. Ballingee. Mr. Richardson, I think that is made perfectly plain by the following sentence: It was liirgely through the work of my ;issociates that you were identified and enrolled on'wliiit was known as the JIcKennon roll of 1899, and thereafter reidontifleil under the supplemental agreement with the Choctaws approved July 1, 1902. I think they thoroughly understood that that was a further au- thorization. Mr. RiCHAEDSON. Mr. Ballinger, by the use of the term " your as- sociates," I suppose you refer to Mr. Lindly and those interested in the old Choctaw contract? Mr. Ballinger. That is correct. ENROLLMENT IN THE FIVE CIVILIZED TRIBES. 271 Mr. Richardson. Do you know whether they had anything to do with the identification of Elan Tookolo? Mr. Ballinger. As to whether they were personally present when he was identified, I do not know. I know that for years they per- formed extensive services in attempting to secure legislation for the benefit of these parties, and that they appeared constantly before the department in cases pending there, and at that time represented all Mississippi Choctaw claimants under the Lindly contract. Mr. Richardson. You sent out this circular letter with the powers of attorney to all of those Choctaws who were identified and not en- rolled on the McKennon roll and the identified list ? Mr. Ballinger. I think so. Mr. Richardson. You never had and did not have a part in that identification for enrollment of all those parties, and never claimed, even in the Winton case, to have acted for all of them, but only a part of them. Mr. Ballinger. Their claim in the Winton case was for compensa- tion for every person enrolled. Mr. Richardson. Is not the claim based upon the general legisla- tion and general services, not work in Mississippi, in 1899, 1900, 1901, and 1902, in identifying the Indians ? Mr. Ballinger. Mr. Richardson, I am not personally familiar with what transpired in Mississippi in 1901 and 1902, but the entire record discloses such a scandalous condition on the part of attorneys who were there and who participated in that work in 1899 and 1900, (hat I am very glad to saj that my clients do not claim, and they never have claimed, anything for anything that was done in Missis- sippi in 1899 and 1900. Mr. Richardson. If your clients do not claim that, and they never claimed it, how can you say that it was largely through their work that those persons were identified and enrolled on what was known as the McKennon roll of 1899, when that was done largely by means of hearings which were entirely conducted in this city ? Mr. Ballinger. You are asking about matters every one of which has been submitted to the Court of Claims, and the decree of that court in the matter will undoubtedly be handed down in October, and I would prefer to submit the decree as to what my clients did in be- half of those people rather than express my opinion on it now. Mr. Richardson. Your next statement in this letter says : I hope to be able to secure the enactment of a law at the next session of Congress directing your enrollment and the payment to you of a cash considera- tion of from $5,000 to $7,500 in lieu of lands in Oklahoma. Mr. Ballinger. Yes, sir. Mr. Richardson. You really, then, in August, 1913, entertained the hope that you would, at the next session of Congress, procure an_ enactment of a law to pay these people from $5,000 to $7,500? Mr. Ballinger. What I did Mr. Richardson (interposing). Did you not almost immediately after writing these letters, and while some of them were going out Mr. Ballinger (interposing) . Let me explain. A tribal right in the Choctaw and Chickasaw Nation was estimated at anywhere from $5,000 to $10,000, and upon that basis I made the representation. 272 ENROLLMENT IN THE FIVE CIVILIZED TKIBES. Mr. KiCHAEDSON. You say you hope to be able to secure the enact- ment of a law for the payment of a cash consideration of from $5,000 to $7,500. Did you not, almost immediately upon the sending out of these letters, draft a bill which was introduced by Mr. Stephens, at your request, providing for the payment of $1,040 a head'^ Mr. Ballingee. I can not say exactly as to the date it was intro- duced, but I know I did draft such a bill and Mr. Stephens intro- duced it at my request. Mr. EicHAEDSON. What is the date of that bill ? Mr. Ballingee. September 4, 1913. Mr. RiCHAEDSON. That was two weeks after the date of these let- ters. Mr. Ballingee. What is the date of that letter ? Mr. RiCHAEDSON. August 19, 1913. Mr. Ballingee. I think that is probably correct, but I want to state this, to make that perfectly plain, that before I drafted this bill and asked Mr. Stephens to introduce it by request, the amount there underwent various revisions. I discussed the matter with various parties, and I concluded that the best that could be done probably was $1,040, and I was anxious to do the best I could and so fixed it at that amount. Mr. Caetee. What was your purpose in sending out this letter in regard to this new contract ? Mr. Ballingee. Mr. Chairman, Lindly, Field & Howe, imder their general authorization in 1896, claimed to represent all the Mis- sissippi Choctaws, and after the passage of the law declaring the contracts void I drafted that letter, of which this one, signed with my rubber stamp, is a copy, and sent it out accompanied by a mere power of attorney, not a contract. Mr. RiCHAEDSON. Is it not a fact that at the time this letter was sent out you felt that in view of the fact that you had not any written evidence it might be somewhat doubtful, and you took this action in order that the status might be reinstated? Mr. Ballingee. No; that was not my idea at the time I took it. My idea was this, Mr. Chairman, that if their contract provided for the payment of a fee equal to 25 per cent of the 'amount of the prop- erty recovered — Congress had legislated upon that subject, and, in my opinion, had rendered those contracts void. This was merely an authorization that would have authorized me to appear for them and continue the prosecution of their cases so that there could be no question about my authority. I want to add this to what I have said, that I have never, directly or indirectly, received a dollar from one of these parties, nor has any person with whom I am connected received, directly or indi- rectly, a dollar from any of these Mississippi Choctaws, as attorneys, • and I have paid my own expenses thronarhout. Mr. RiCHAEDSON. I would like to put this letter in the record, this circular letter which was sent out bv Mr. Ballin Cowling, A. D. Cowling, and Oramittie Cowling, are enrolled on the finally approved roll of citizens by blood of the Choctaw Nation opposite Nos. 15963, 15964, and 15965, respectively. They are enrolled by reason of their Choctaw blood derived from their father, Anderson F. Cowling, the claimant herein. The testimony in this case Is clear that claimant, Anderson F. Cowling, voted in the elections, owned land as other Choctaw citizens, purchased land at sherifCs sale, and held office as deputy sheriff for several years. That he held office is indicated by a certificate hereto attached. September 7, 1896, claimant made application for citizenship in the Choctaw Nation under act of Congress of June 10, 1896, for himself and his children as Citizens by blood and for his wife, Caroline Cowling, as an Intermarried citizen. December 2, 1896, commission rendered its decision admitting Anderson F. Cowling as an intermarried citizen and his wife and children as Choctaws by blood. Case appealed to the United States court, central district, Indian Territory, as to Anderson F. Cowling only. September 11, 1897, judgment in United States court entered admitting applicant, Anderson F. Cowling, as a citizen by blood of the Choctaw Nation. December 17, 1902, judgment of the United States court vacated by general decree of Choctaw and Chickasaw citizenship court in " test case." Records subsequently certified to citizenship court for trial de novo. February 29, 1904, citizenship court rendered" a decree denying claimant en- rollment. June 13, 1899, application of Anderson F. Cowling made to commission at Spiro, Ind. T., for enrollment of himself and children, John A., A. D., and Oramittie Cowling, as citizens by blood, and for the enrollment of his wife, Caroline Cowling, as a citizen by intermarriage of Choctaw Nation. June 22, 1905, commission rendered decision admitting John A., A- D., and Oramittie Cowling, children of Anderson F. Cowling, as citizens by blood, and Caroline Cowling, wife of Anderson F. Cowling, as a citizen by intermarriage. Decision of commission vigorously resisted by attorneys for the Nations, pro- tests being filed before both the Indian Office and the Secretary. September 12, 1905, decision of commission approved by Secretary. January 11, 1906, a petition was filed before commission praying for a re- hearing in this case. April 5, 1906, further proceedings were had and testimony taken before the Commissioner to the Five Civilized Tribes, and the commission held that this ease did not come within the ruling of the department in the Loula West case, and for the reason that he had never been prior to 1896 admitted or enrolled as a citizen by blood of the Choctaw Nation or married to a citizen by blood of said nation under Choctaw law. May 7, 1906, Commissioner to Five Civilized Tribes rendered decision denying application as a citizen by blood of Choctaw Nation for the reason that he had 278 ENROLLMENT IN THE FIVE CIVILIZED TEIBES. never been enrolled by the Cboctaw tribal authorities or admitted to Choctaw citizenship by a duly constituted court or committee of the Choctaw Nation. He was denied enrollment as an intermarried citizen of the Choctaw Nation under the ruling of the department in the McMenamin case, for the reason that he had not been married to a citizen by blood of the Choctaw Nation under tribal law. February 15, 1907, department approved decision of commission. It appears from the record that Caroline Cowling, the wife of the applicant, is enrolled on the iinal approved roll of Choctaws by intermarriage opposite No. 1507, and tbe children, John A., A. D., and Oramittie Cowling, the children of Anderson F. Cowling and wife, Caroline Cowling, are enrolled upon the final approved roll of Choctaws by blood opposite Nos. 15963, 15964, and 15965, respectively. Counsel for aiJplicant respectfully represent that inasmuch as the testimony shows that claimant is a Choctaw Indian by blood and has resided in the Choc- taw Nation, voted, held office, and owned land therein as a citizen, and his children by his wife, an intermarried Choctaw, are enrolled as citizens by blood of the Choctaw Nation by reason of his Indian blood, and such enrollment was approved by the Secretary of the Interior, the claimant herein is in equity and good conscience entitled to enrollment as a Choctaw by blood. (Exhibits attached.) Entitled to enrollment: Anderson F. f'owling. Respectfully submitted. Ballinger & Lee, Counsel for Claimants. Mr. Redwine. I now introduce as a part of the record the judgment of the United States court, central district, Indian Territory, admit- ting Anderson F. Cowling to citizenship. (The matter referred to is as follows:) ■ I. In the United States court, central (iistrict, Indian Territory, sitting at South Mc- Alester. Saturday, September 11, 1897. A. F. Cowling v. Choctaw Nation. No. 170, April, 1897, term. Judgment.] Now on this day this cause came on to be heard in open court, the same being the 11th day of September, A. D. 1897, and one of the regular judicial days of the April, 1897. term of the court. Both plaintiff and defendant announce ready for trial, ;ind the court, having heard the evidence and argument of coun- sel, finds that the plaintift, Anderson F. Cowling, is a member and citizen of the Choctaw Nation by blood, being the lawful issue of Choctaw parents by blood. It is therefore ordered, adjudged, and decreed by the court that the plaintiff, Anderson F. Cowling, is a member of the Choctaw Nation by blood, and entitled to all the rights, privileges, immunities, and benefits in said nation as such citizen and member by blood. It is therefore ordered, adjudged, and decreed by the court that the defendant, the Choctaw Nation, recognize said rights, privileges. Immunities, and benefits to their full extent, and recognize the said plaintiff, Anderson F. Cowling, as a member and citizen of the Choctaw Nation in all respects. It is further ordered, adjudged, and decreed by the court that the clerk of this court prepare a certified copy of this judgment and transmit the same to the Commissioners to the Five Civilized Tribes, and that the said commission place the name of the plaintiff, Anderson F. Cowling, upon the rolls prepared or to be prepared by them of the members and citizens of the Choctaw Nation. It is furthered ordered, adjudged, and decreed by the court that the plaintiff herein named have and recover of and from the defendant, the Choctaw Nation, all his costs herein laid out and expended, for all of which let execution issue. Wm. H. H. Clayton, Judge. State of Oklahoma, PUfsiurg County, ss: I, C. L. Hefley, clerk of the district court within and for Pittsburg County, State of Oklahoma, do hereby certify the within and foregoing to be a full, true, and correct copy of the judgment in the matter of A. F. Cowling v. Choctaw Nation, No. 170, as the same appears in citizenship record "A," pages 245 and 246, of the United States court, central district, Indian Territory, said record now being In my custody as clerk of the district court, said court being successor to the late Uuited States court for the central district, Indian Territory. -BNBOLLMENT IN THE FIVE CIVILIZED TRIBES. 279 In wituess whereof I have hereunto set my hand and aflixed the seal of said court this the 20th day of May, A. D. 1914. [SEAL.] C. L Hefley, Cleric DisMct Court, Pittsburg County, State of Oklahoma. Mr. Carter. Senator, I would like to make this suggestion : It may be that some really meritorious cases are left off the rolls, which would be natural in the settlement of such a large number of cases. Mr. Redwine. Yes. Mr. Carter. You as a lawyer, of course, realize that there must be an end to this thing some time. In other words, people must have ease of title and peace in the possession of their property and in the division of it. Mr. E.EDWINE. Yes. Mr. Carter. It may be true that there are some off the roll who are entitled to enrollment, but the question is whether a greater injus- tice might not be perpetrated if the rolls were reopened and the matter prolonged for 10 or 15 years. I would like to hear from you along the line of the special relief that, in your judgment, should be provided. Mr. Redwine. You want my idea of that ? Mr. Carter. Yes. Mr. Redwine. Well, I will give you my idea of it. Realizing that there are certain persons left off the rolls who ought to be on the rolls — and I think this case I present is one of them — and realizing that to reopen the rolls in a general way would probably cause endless litigation and heavy expense, I think it would be well to handle these cases in such a way that the ones who are left off the rolls and ought to go on the rolls have an opportunity to have their cases properly heard and adjudicated. That might be done by a commission of some kind created by an act of Congress. I suggest that because I realize that you gentlemen who are in Congress do not have the time to go through these various cases. You would never be able to get through with it, because it would take entirely too much of your time from your other business. Therefore, my idea would be to formulate some kind of legislation by which the meritorious cases could be heard, and then a special bill passed admitting that class to citizenship upon the recommendation of this suggested commission. Mr. Carter. You would not advocate a general reopening of the rolls? Mr. Redwine. I would not advocate a general reopening of the rolls. Mr. Post. The rolls were closed in 1906, were they not i Mr. Carter. In 1907. Mr. Post. How many cases are there similar to this one which you represent? How many do you suppose there are? Mr. Redwine. I can not tell you how many there are. This is the onlv one, I think, like this. Mr. Post. Would there be a great many that you have heard of « Mr! Redwine. There are a great many, I think, who are entitled to be enrolled, but the cases are a little different from this. Mr. Post. What is your estimate of the number of persons who have not been admitted but wbo ought to be? Mr Redwine. I would not like to make a guess at that, because I am not familiar enough with it to give an estimate. There is a 280 ENROLLMENT IN THE FIVE CIVILIZED TEIBES. great number of them. I represent only a few myself, and I can not make an estimate. Mr. Arnold. Would it be satisfactory to submit these cases to the Secretary of the Interior? Mr. Red WINE. I have not given that consideration. That is a matter that can be worked out. Mr. Carter. What you want, as I understand it, is to have those cases which Congress, after an investigation, would deem worthy and meritorious adjudicated, and you would confine the readjudication to those cases? Mr. Eedwine. Yes, sir. Let them be passed upon by a commis- sion or by some one authorized to pass upon them and let that com- mission report back to Congress. Mr. Post. Would not that result in the opening up of the whole controversy? Could you pass a special act authorizing a commis- sion of that kind unless you conferred upon that commission the power to investigate all of the cases in order to determine which are the meritorious cases ? Mr. Redwine. I do not know how you would work that out. It would take some thinking to work it out, and I have not given it enough consideration to formulate a bill in my own mind. However, my idea is that some kind of legislation could be formulated by which the desired result could be attained. Mr. Ballinger. Is it not a fact that the claimants who are off the roll come within four or five distinct classes ? Mr. Redwine. They may. Mr. Ballingek. And they could be easily covered by an act of Congress ? Mr. Redwine. That may be true. I have not given the matter sufficient consideration to be able to formulate a bill just now, but I think a bill could be drawn that would reach the situation, and I think this committee, after considering the matter, could formulate such a bill. Mr. Post. It is a fact, is it not, that a great many persons were enrolled who were not entitled to be enrolled? Mr. Redwine. There may be some on the rolls who are not entitled to be enrolled. Mr. Carter. I introduced a bill in the Sixty-first Congress and reintroduced it in the Sixty-second Congress which, I think, would cover Mr. Redwine's case. The chairman of this committee, Mr. Stephens, has introduced a bill which, in my opinion, would cover a case of the kind you have. It provides for the readjudication of a certain class of cases. Mr. Ballinger is probably better posted on that than I am. Mr. Ballinger, would Mr. Stephens's bill as now drafted cover this Cowling case? Mr. Ballinger. Yes, sir. Mr. Post. What is the status of your client with regard to prop- erty? Mr. Redwine. He is a man of property. He has considerable money. Mr. Post. How much is he worth ? Mr. Redwine. I expect he is worth $25,000 or $30,000. He takes this view of the matter : It is not a money consideration at all, but he says that his children are on the roll as citizens by blood through ENROLLMENT IN THE FIVE CIVILIZED TEIBES. 281 him, and that he is entitled to be enrolled. He thinks he ought to be enrolled also, because his children claim their blood through him. Mr. Ballikger. That is an exceptional case in so far as the ap- plicants financial condition is concerned. Mr. Post. What is his business? Mr. Red WINE. He is a farmer and cattleman; he is engaged in raising stock, and is a man in good financial condition. Mr. Post. Is he a man of education ? Mr. Redwine. He is a man of limited education. Mr. Carter. He is smart enough. Mr. Redwine. Yes, sir; he knows how to take care of dollars and cents all right. That is not .the consideration here. It would not appear to be a good record with him left off the rolls and his children on the roll as citizens by blood, and claiming their blood through him. Mr. Post. The fact that he has property or has not property does not bear on the merits of the case. Mr. Redwine.. That is true. I am giving you the facts as they exist. Now, as I suggested a while ago, I think this particular man ought to be placed on the roll by a special act. I think that is the remedy in his case. Of course that case can be easily reached by Congress, but Congress is the only body that can correct the error now. I understand that there is a bill pending in Congress now admitting 40 or 50 persons to the rolls. Mr. Carter. There is an amendment to the Indian appropriation bill introduced by Senator Owen which provides for the enrollment of certain persons about whom there is no contest. They were agreed to by the tribal authorities, I believe, and recommended by the Interior Department. Mr. Ballinger. That would not cover this case, because they are named specifically. Mr. Carter. The situation is this: The department in response to a letter from Senator Owen, I think it was, transmitted to him cer- tain names which they said should go on the rolls, and to which no objection was made bv the tribal authorities. The tribal attorneys also wrote letters stating that these persons were entitled to enroll- ment in their opinion, and that they did not object to their being en- rolled. All that was made a Senate document at the request of Sen- ator Owen. He then introduced an amendment to the Indian appro- priation bill providing that the names in that Senate document be added to the rolls of the Five Civilized Tribes. Is that correct, Mr. Hurley ? Mr. Hurley. That is substantially correct. The idea is this : We agreed to the enrollment of certain persons with the understanding that their enrollment would finally conclude the enrollment, but there are names of persons on the list submitted whom we have just grounds to oppose. Our agreement to that is in the nature of a com- promise to secure a final settlement of the tribal estate and a distribu- tion of tribal funds. Mr. Post. What is the status of that ? Mr. Carter. The entire matter has been placed in the Indian ap- propriation bill by the Senate Committee on Indian Affairs. Mr. Ballinger. It has not been reached for consideration by the Senate. 282 ENROLLMENT IN THE FIVE CIVILIZED TEIBES. Mr. Post. I suggest to Senator Eedwine that he should go over to the Senate have that name included, and get this gentleman here to agree to it. Mr. Ballingek. This man is in precisely the position of quite a number of others. Mr. Eedwine. Has not that bill reached the House ? Mr. Carter. The House bill passed the House and went to the Senate. It will go to conference, but the conferees will only have jurisdiction of the matters that are in controversy between the two Houses. Mr. Post. If you could get these gentlemen to agree to have this man's name included in that bill Mr. Red WINE (interposing). I will do my best. Mr. Hurley. We might state frankly our position in the whole matter: Mr. Cowling is a gentleman whom I know very well. I attended school with all three of his children mentioned here. They are splendid people and are highly esteemed by those who Imow them. There was considerable question raised as to whether or not he has any Choctaw Indian blood in his veins, and it was denied by the citizenship court that he had any Choctaw blood. It was afterwards decided by the Dawes Commission that he had no Choc- taw Indian blood. There is a decision, however, by the United States court holding that he is the issue of parents having Choctaw blood. Now, we do not care to agree to the enrollment of a man if there is grave doubt that he is an Indian. The fact that his children were enrolled is due to the fact that their case was never appealed. Their Choctaw blood has never been questioned, and, as has been stated many times before the committee, there may be niany people on the rolls who really are not entitled to enrollment, and, perhaps, these are in that class. I make this statement with the imderstanding that I have not gone fully into the merits of this case. I have never appeared as an attorney in the case and do not laiow the facts except as stated here, or as they have been stated out- side of the record, and I am therefore not prepared to admit that he is an Indian. Mr. Post. Have you proof of his Choctaw blood? Mr. Redwine. There is a full record of that. Mr. Carter. The plan that has been suggested would really be the only chance to get relief, as I have stated to the Senator, within two years, because what we may do here now, or whatever this com- mittee does, will, perhaps, not crystallize into legislation for a year or so. I say that because the next session will be a short session of Congress, and I do not see any chance to get such legislation through at the present time. Mr. Post. My understanding is that the Choctaw Nation, where they have a clear case, does not object to enrollment. Mr. Eedwine. They ought not. Now, in answer to Mr. Hurley's question as to whether or not he has Indian blood, I wish to say that the Commission to the Five Civilized Tribes passed on the applica- tion of the children and held that they had Indian blood. .Then, the United States court, a different tribunal, passed on Cowling's case and held that he had Indian blood, while only the citizenship court held that he did not have Indian blood. Therefore, the two different tribunals which passed on the children's case and on Cowl- ENEOLLMENT IN THE FIVE CIVILIZED TEIBES. 283 ing's case held that he had Indian blood. There were two tribunals that passed on the case that held that he had Indian blood. Be- sides, there IS and always has been, some doubt as to the rules ob- served by the citizenship court. At any event, the weight of the testimony is in favor of his having Indian blood. Mr. Post. It looks like you ought to be able to show where he originated. Mr. Eedwine. The testimony shows that. There is a full record of it as Muskogee, or, in the department. I do not know where the records are. Mr. Hurley. The enrollment records are still at Muskogee. Mr. Ballingek. It appears that a certificate was issued under date of the 30th day of April, 1891, by the county clerk of Skullyville County, Choctaw Nation, in which this language is used : Know all men by these presents that whereas A. F. Cowling, a citizen of the Choctaw Nation, has this day petitioned, according to the form of the statutes in such cases made and pro\ided, asking that a permit be granted to Mr. Allen, a citizen of the United States, to remain in his employ in the capacity of a farmer for the year 1890, etc. That appears on pages 286 and 287 of this document in support of S. 7625. There are other certificates in this document of the same nature, all issued by the Choctaw authorities, certifying as to his citizenship in the nation. Therefore, it would seem that they would be estopped from denying their own certificates _ Mr. Hurley (interposing). As a matter of fact, many such cer- tificates were issued to persons who were afterwards held not to be citizens of the Choctaw Nation. Mr. Ballinger. By the citizenship court. Mr. Hurley. And by the Dawes Commission. Mr. Ballinger. I think there were very few instances where the Dawes Commission found that these people were not entitled. Mr. Hurley. I can cite a number of instances. Mr. Post. Here is the provision in the Indian appropriation bill to which reference has been made. It appears on page 73 of the bill and reads as follows: The Secretary of t^e Interior is hereby authorized to enroll on the proper respective rolls of the Five Civilized Tribes, as indicated, the persons enumer- ated in Senate Document No. 478, Sixty-third Congress, second session. Mr. Eedwine. Are the names contained in the document ? Mr. Post. Yes. Mr. Eedwine. That does not include this case. It appears, as you suggested, that the only way of getting Mr. Cowling on the roll now would be by amendment to the bill. Mr. Post. Amend this document ? Mr. Eedwine. Yes, sir. Mr. Carter. Mr. Eedwine, we are requiring all gentlemen to tell what their contracts are. Mr. Eedwine. I have not any contract with this man ; I am doing this free gratis. I represented him in court when his citizenship case was tried before the United States court at McAlester ; I repre- sented him before the Dawes Commission, and I know the facts of the case. He is a friend of mine; and as I was up here on other business, he asked me whether I -would make a statement to the com- 284 ENROLLMENT IN THE FIVE CIVILIZED TRIBES. mittee in his behalf, and I told him I would. However, I have no contract with him. STATEMENT OF HON. JOHN T. WATKINS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF LOUISIANA. Mr. Watkins. Mr. Chairman, will you be kind enough to allow mh to make a short statement? Mr. Caetee. Certainly, Mr. Watkins. Mr. Watkins. Mr. Chairman, I had been of the opinion that the Mississippi Choctaw Indians were confined almost exclusively to the State of Mississippi, but I find, from the number of communications I have received from them and on their behalf, that instead of being confined to Mississippi they are almost entirely in the State or Lou- isiana. I want to say to you gentlemen that I heartily approve the Harrison bill, and would be glad to appear at some convenient time and express my views on the matter more at length. The House being in session, I can not do so now. I wish, however, to put myself on record as being in favor of the bill on account of the large number of Choctaw and Chickasaw Indians residing in the State of Lou- isiana. I have ascertained that fact since the bill was introduced. Mr. Carter. We will be glad to hear from you at any time, Mr. Watkins. (Thereupon, at 12 o'clock noon, the committee adjourned until Saturday, June 13, 1914, at 10.30 o'clock a. ra.) Subcommittee or Committee on Indian Affairs, House of Representatives, Saturday, Jwne 13, 19-H. - The subcommittee met at 10.30 o'clock a. m., Hon. Charles D. Carter (chairman), presiding. Mr. Carter. We have met this morning for the purpose of allow- ing Mr. Cantwell to conclude his argument. Mr. Cantwell, you may proceed. STATEMENT OF MR. H. J. CANTWELL, REPRESENTING THE MISSISSIPPI CHOCTAW INDIANS. Mr. Cantwell. Mr. Chairman apd gentlemen of the committee, at the second session of the Sixty-second Congress I made quite an ex- tensive argument upon this matter, and filed a brief. As the mem- bers of the committee will probably read all of these hearings, at least, although they are quite voluminous, and although you are much pressed for time, I will ask permission to simply file this brief and then make a few additional remarks. This is the brief that was filed and incorporated in the record before, but I would like to have it incorporated in this record, because it is a sequential argument. Mr. Carter. If there is no objection, that may be done. Mr. Cantwell. I think it is probably as sequential a statement of the matter as has been made on either side, and while there is ENROLLMENT IN THE FIVE CIVILIZED TRIBES. 285 contained in the hearings a great deal more than that, yet this brief presents the argument in sequence. Mr. Hurley. Can you spare me a copy. of the brief that you have presented ? Mr. Cantwbll. That is published in full in the hearings, just exactly as it is, but there are a number of matters treated of in ad- dition to that. (The brief submitted by Mr. Cantwell is as follows:) Statement of Harry J. Cantwell, op Crews & Cantwell, Attorneys fob MississLPPi Choctaw Claimants, to the Committees on Indian Affairs of THE Senate and House of Representatives, Sixty-second Congress, Second Session. Note — The numbers in the text refer to notes and citations as printed In the Appencjix. Thie statement is made in behalf of several thousand claimants to rights in the Choctaw-Chickasaw Tribe, whose rights, I undertake to show by record evi- dence, have been recognized by Congress, but the recovery .of whose rights has been defeated and the rights practically nullified by the enactment of legislation at the instigation of interested persons for selfish ends. I believe I can show that this was accomplished by a conspiracy, and that the powers of the United States Government have been usurped by the con- spirators. I shall present to the committee no verbal testimony, and X shall make no oral argument on questions of law. The legal principles for which I contend are all settled by decisions of the Supreme Court of the United States, and I believe a reference thereto in a printed appendix to this statement which I shall file, is all that is necessary. I shall simply endeavor to put before the committee. In their natural sequence, the facts which are proven by the records before your committees, and shall place in their natural relation admitted facts. I am performing no philanthropic act. I am here as a lawyer to present the claims of clients, with all of whom our firm has Individual contracts, for a con- tingent fee. ■ I shall make no statement that is not proven by the record, and I challenge in advance any denial of the truth of any statement that I shall make ; because I take it that the facts are indisputable and are either admitted by the adverse interests or are conclusively proven by the record which our opponents have made. The last scene in one of the most remarkable acts in American history is now about to be played to a conclusion. The remaining lands and moneys of what is known as the Choctaw-Chickasaw Tribe of Indians is almost ready for distribution. Those of the committee who are new in ser-slce on Indian affairs may pardon me for stating: the magnitude of the property involved. Every person, man, woman, and child, now upon the existing departmental rolls of the Choctaw-Chickasaw Tribe, has already received out of the first selected and most valuable lands 320 acres apiece. At the time of distribution that land was worth not less than an average of $8 per acre. Much of it is now worth $100 per acre. In addition, and stiU remaining undistributed, are the proceeds of the sales of the so-called surplus lands of the tribe, which sales have been taking place for the last year and which are still going on, and which proceeds from the surplus lands will amount to at least ten, and perhaps to twenty, millions of dollars. . . ^^ ^. * j-v,„ „„i.. „* This committee has had before It at this session the question of the saje ol the surface and also the question of the sale of the mineral rights of the " coal and asphalt " lands of the tribe— at one time estimated to be worth any- where from fifty to one hundred millions of dollars, and at the most pessimistic view worth at least fifteen millions. .,,.,. ^v, v, „ v.„ Here is a great stretch of territory which was included m the purchase by the United States from France known as the Louisiana Purchase, which was granted by the United States to a partly civilized community some 80 years ago; and which is now perhaps as rich In natural and developed resources as any'equalarea on the face of the globe. 286 ENBOLLMENT IN THK FIVE CIVILIZED TBIBES. THE PRINCIPLE OF DISTRIBUTION. Under the policy of the United States, it has been sought to be devoted to distribution to the members of that political community who were in existence and had rights therein at the time the so-called tribal organization was practically dissolved and the community of ownership of property was abandoned. Nothing like it has ever been done in the history of man. That all of the national prop- erty made valuable by civilization should be reduced to individual ownership and distributed either in kind or in moneys to the members of that political community. No one attacks the policy of this distribution. Much as the United States has been criticised for its treatment of the Indian, what has gone on and is now going on in the Five Civilized Tribes, shows that the United States has had greater care for a conquered people than any conquering nation has ever shown since the beginning of time. Civilized, intelligent, active, and industrious as the Irish were, they, as con- quered people, were not only deprived of their common national lands, but their Individual lands were practically confiscated by the English. Here, the United States confirms all of the individual rights and grants as well as the national or common lands to the persons composing the community to be enjoyed individ- ually, upon the theory, not that they individually desire it, but that each. Indi- vidually, requires this start to equip him for the duties and the burdens of civilization. No one questions the title as granted by the United States in the patent to this tribe. It was a grant to the tribe in its political capacity, to be enjoyed in common, subject to the controlling power of the Unied States. There is no doubt that the title is fully \esteil in thiit community and that the individuals thereof , and those whose rights were secured by the agreement of the com- munity, when the community had power to make any agreement about any- thing, are entitled to it. THE DUTY OP THE UNITED STATES TO DETERMINE WHO ARE THE LAWFUL BENE- FICIARIES. The point which I desire to call this committee's attention to in this state- ment is that when the political community ceases; when the right to common enjoyment is abandoned, or otherwise ended, and when the property is devoted to per capita distribution, it is the duty of the United States, and one which the United States has never intentionally abandoned, to determine who are the members of this political community and who are the proper beneficiaries In this distribution, and it is the purpose of this statement to show that neither the tribal democracy nor the United Stntes of America, in the exercise of its supervising control as guardian over these wards, has in fact had anything to do with determining the individuals who have received these benefits, but that the individual beneficiaries have been selected by a little firm of selfish lawyers, for their own purposes, not in furtherance of justice and not upon any principle except upon the principle that the selection of particular persons would benefit these lawyers and those allied with them in this conspiracy, and that these lawyers would and did benefit by the exclusion of those most worthy and equally entitled to benefits. The statement that I shall make to-day relates to the rights of those claim- ants known as the " Jlississijipi Choctaws." Later, I hope to be indulged by the committee to show that the same active agency has been at work in excluding full-blood natives of the tribe and black natives of the tribe, whose natural rights are as grent as the favored ones, and whose rights under the former treaties, when the Indians had any form of government with any actual power, were as nudi&i3uted as the rights of those now upon the rolls. THK RlfiHTS OF MISSISSIPPI CHOCTAWS. In order to a proiJer understanding of the rights in the lands and funds of the Choctaw-Chickasaw Tribe claimed by those persons of the Choctaw race who are technically known as " >[ississippi Choctaws," it is necessary to review the history of the period when the rights arose and the events which suc- ceeded, in chronological order. It must first be stated that neither the Choctaw Tribe in Oklahoma nor the claimants known as Jlississippi Choctaws are "blanket Indians," nor has the country of the Choctaw-Chickasaw Tribe borne any resemblance to the "reser- vation " of the uncivilized Indian for manv generations. ENEOLLMENT IN THE FIVE CIVILIZED TRIBES. 287 THE TRIBE IN 1830. In 1830 the Choctaw Tribe inhabited a portion of what is now Louisiana and Mississippi; slavery existed in the tribe, and had existed'for generations prior thereto. Having available the labor of the industrious negro slaves, and not being dependent upon the chase for food, they had made advances toward what we call civilization. Fields were cultivated and, while the land belonged to the tribe, yet the individual right of occupancy of cultivated land was recognized. Family life had become common. The Gens, or Iksa, had been abolished. Plural marriages were permitted, but were not common. The father was the head of the family. Private property in slaves and in movables existed. These Indians had been friendly with the whites for years. Many whites had before then joined the tribe and had intermarried with them. vSeven hundred Choc- taw warriors had marched to the relief of the white settlers when the uprising of the Natchez — the sun worshippers — occurred. Thirty Choctaw warriors were soldiers with " Mad " Anthony Wayne. The Choctaws were among the most valiant with Andrew Jackson at the Battle of New Orleans in 1815. Push-ma- ta-ha, the friend of Jackson and Lafayette, had prevented his tribe from being swayed by Tecum.seh to join the great Confederacy against the whites. W^hile many members of Ihe tribe had, in 1830, then reached a stage of civilization as advanced as that now enjoyed by the most progressive mixed blood now residing in Oklahoma, yet there were many In the tribe who still loved the chase and abhored the white man's civilization, just as there are still lurking in the mountains of Oklahoma a band of "Crazy Snakes" who refuse their allot- ments. The " Crazy Snakes " of that day were troublesome. They would commit peace disturbances, and fight and kill the white settlers and escape to the Choctaw country where the white man's law could not reach them. THE TREATY FOB BKilOVAL WEST OE FOR INDIVIDUALrzATlON OF THE INDIANS. . The State of Mississippi was demanding that the Indians be removed or that the jurisdiction of the State of Mississippi be extended over the " Choctaw country." Andrew Jackson, then President of the United States, sent three commissioners to negotiate with the tribe for the removal of the Indians west of the Mississippi. The civilized Indians were opposed to the removal, because they loved their homes and did not desire to return to barbaric life. The "Crazy Snakes" opposed the cession of lands In Mississippi on general prin- ciples. The civilized members were, of course, the most influential. " Missis- sippi " meant as much to the civilized Choctaw as to any white man. There was his hearthstone, and there the grave of his ancestors. THE CLAUSE WHICH MADE THE TREATY POSSIBLE. In pursuance of the instructions of the President of the United States to these commissioners to accomplish the cession of the lands in Mississippi, and to grant, to those Indians who desired to remain, the right to become citizens of the United States without losing their interest in the lands of the Choctaw Na- tion, the commissioners on the 27th day of September, 1830, entered into the treaty known as the treaty of Dancing Rabbit Creek. The insertion of the four- teenth article, as conclusively shown by contemporaneous testimony, was the only method by which the treaty could have been concluded. That fourteenth article is (1) : " Each Choctaw head of a family, being desirous to remain and become a citizen of the States, shall be permitted to do so, by signifying his intention to the agent within six months of the ratification of this treaty, and he or she shall thereupon be entitled to a reservation of one section of 640 acres of land, to be bounded by sectional lines of survey; in like manner shall be entitled to one-half that quantity for each unmarried child which is living with him, over 10 years of age, to join the location of the parent. If they reside upon such lands, intending to become citizens of the States, for five years after the ratification of this treaty, in that case a grant in fee simple shall issue. Said reservation shall include the present improvement of the head of the family, or a portion of it. Persons who claim under this article shall not lose the privi- lege of Choctaw citizens, but if they have removed shall not be entitled to any portion of the Choctaw annuity." Here was a clause inserted in the treaty for the express purpose of individu- alizing the Indian, of breaking up the tribal organization, of subjecting him to 288 ENROLLMENT IN THE FIVE CIVILIZED TKIBES. the laws of tlie white man, and of makiug him a citizen of the United States ; and as a penalty for his removal from Mississippi he was to be deprived of his portion of the Choctaw annuity then existing. It is quite certain the intent of the treaty at the time it was made was to encourage the Indian to become a citizen of the States, and not to discourage him. THE FAILUKE OF THE UNITED STATES TO PERFORM THE STIPULATIONS OF THE FOURTEENTH ARTICLE OF THE TREATY. It is shown by the exhaustive testimony taken by the commissioners (2) under the acts of March 3, 1837 (5 Stat. L., 180), act of February 22, 1838 (5 Stat. L., 211), act of August 23, 1842 (5 Stat. L., 573), and by the depositions in the case of the Choctaw Nation against the United States in the Court of Claims, hereinafter fully referred to, how the agents of the United States Government failed to record the intention of those who remained, and how the Choctaws, who, in reliance upon the honor of the Government, remained behind when the main body was moved to the West, were robbed of their lands in Mississippi — their settlements not being recorded and white invaders driving them therefrom. The removal of the larger body took place hi 1831, but more than 7,000 remained behind in Mississippi. Those who were conclusively shown to be entitled to the provisions of the fourteenth ar- ticle numbered 3,839 in 1830. (See finding No. 12 in the record in case of Choctaw Nation West v. United States, p. 71) Those who actually re- ceived the allotment of land under article 14 were (3) only 139. The laws of Mississippi were immediately extended over those who remained; it was made a penalty for their leaders to exercise any influence over their people or to claim to be their chief; laws were passed destroying the traditions of the Choctaws and making what they deemed innocent acts crimes. Locations were made in fact, but the records were not made or not preserved. The con- clusive testimony that the lands, including the improvements, were sold by the United States Government, and the full details of how the purchasers drove the Choctaw from his home, to exist without a tribe and without a community, as a gypsy might, is all preserved in the oflncial reports. Com- munication of some sort continued constantly between the members of the Choctaw Tribe in the Indian Territory and those left behind in Mississippi. In 1847 a considerable number were assisted to remove to the Indian Territory. Some who went to the Indian Territory returned to Mississippi, and many who were left behind in Mississippi rejoined the tribe singly, in families, and in small groups. In 1842 Congress passed an act with the object of inducing the remaining unsettled Indians to migrate to Indian Territory and offered them scrip which would permit them to locate public lands of the United States in lieu of the lands of which they had been deprived in Mississippi. The full story of how this scrip was not delivered to the beneficiaries is preserved in the official reports and in the testimony preserved In the record in the case of the Choctaw Nation v. United States, in Court of Claims, hereinafter referred to. In 1847 there were still remaining in Mississippi 4,000 former members of the Choctaw Tribe (4), who were parties to the treaty of 1830, and who had not moved to Indian Territory. The existence of the large number of Choctaw citizens east of the Mississippi is recognized in the treaty of 1855. THE RECOGNITION BT THE TRIBAL DEMOCRACY WEST OF THE BIGHTS OF THOSE IN MISSISSIPPI. The Civil War came on. Many of the individuals of the tribe who were In Mississippi remained there or migrated as individuals to other States. The Choctaws, or that part retaining a tribal government, who were in Indian Terri- tory joined the Confederacy as a body. At the close of the war, when the treaty of July 10, 1866, came to be made between the United States and the Choctaw Nation west, the following provision was inserted (art. 45) : "All the rights, privileges, and immunities heretofore possessed by said nation or individuals thereof, or to which they were entitled under the treaties and legislation here- tofore mnde and had in connection with them, shall be, and are hereby, declared to be in full force so far as they are consistent with the provisions of this treaty." (5) Articles 11, 12, of the treaty of July 10, 1866, contemplated the immediate allotment then of the lands in the Indian Territory and provided for the sur- vey and division of the lands under the section system of the United States. ENBOLLMBNT IN THE FIVE CIVILIZED TRIBES. 289 This (Jld not actually occur, however, until 40 years thereafter. The Choctaw Tribe In the Indian Territory, still recognizing the rights of their brothers who were left behind in Mississippi, and of their descendants, inserted article 13. This section provides that the notice required in the above article " shall be given ndt bnly in the Choctaw and Chickasaw Nations, but by publication in newspapers printed in the States of Mississippi, Tennessee, Louisiana, Texas, Arkansas, and Alabama, to the end that such Choctaws and Chickasaws as yet remain outside of the Chocta^f and Chickasaw Nations may be informed and have opportunity to exercise the rights hereby given to resident Choctaws and Chickasaws : Provided, That before any such absent Choctaw or Chickasaw shall be permitted to select for him or herself or others as hereinafter provided, he or she shall satisfy the register of the land office of his or her intention, or the intention of the party for whom the selection is to be made, to become bona fide residents of the said nation within five years of the time of selection, and should the said absentee fail to remove into the said nation and occupy and commence an improvement of the land selected within the time aforesaid, the said selection shall be canceled and the land hereafter be discharged from all account thereof." This right of selection of the lands when per capita allotment should take place, so solemnly secured to the absent Choctaws and Chickasaws by the last treaty which the tribe has ever made, has never been given the absent Choctaws. While the treaty of 1866 contemplated the immediate allotment in severalty of the lands in the Choctaw-Chickasaw country, yet such allotaient in severalty to anyone was never made under such treaty and has only been consummated since the breaking up of the tribal organization and preparatory to the organi- zation of the State of Oklahoma. It is further to be remarked that the persons whose I'ights were involved, to wit, the Mississippi Choctaws, were not a party to this treaty, and neither in law nor in equity should their rights, preserved under article 14 of the treaty of 1830, be destroyed without their consent ; nor should a condition have been inserted in the treaty of 1866 that they remove to the Indian country. Of course, by now removing to Oklahoma they do not relapse into the nomadic life, but it must be constantly kept in mind that the original object of article 14 of the treaty of 1830 was to segregate the Choctaws who loved civilization from those who abhorred it; and the rights of the Mis- sissippi Choctalw were granted to induce him to remain in " the States," and not as a condition that he remove to the Indian country. The annuity referred to in the fourteenth article of the . treaty of 1830 was only a trifling sum, and the removal contemplated in article 14 of the treaty of 1830 was nothing more than a removal from Mississippi, in which case he forfeited no right except as to- his share of this annuity. The object was to provide a penalty if he, should become a wanderer, and was inserted to encourage him to remain on the Mississippi lands for five years and to become a homesteader. THE RECOVEBY OF THE TBIBB WEST OF INDEMNITY FROM THE UNITED STATES FOB INJTJBIBS DONE THE MISSISSIPPI CHOCTAWS. In 1881, pursuant to an act of Congress, the Choctaw Nation West (the word " West " as used distinctly recognizing that there still remain a large remnant of what once constituted the Choctaw Nation east of the Mississippi) was per- mitted to sue the United States In the Court of Claims to recover damages for the violation by the United States of article 14 under the treaty of 1830. It must be remembered that the failure of the United States to comply with the provision of article 14 of the treaty of 1830 was a failure which injured in- dividuals in Mississippi alone and that the damages for such violation have been payable only to such individuals. An examination of the record in this case (No. 12144, Choctaw Nation v. United States), reported in volume lip, page 1 United States Supreme Court Reports, shows that over $2,900,000 was recovered by the Choctaw Nation West against the United States, and was paid by the United States to the Choctaw Nation West, all of which sum was based upon and founded upon the violation of article 14 for the damage done indi- viduals who had remained in Mississippi, by the failure of the United States to perform the stipulation of said article. Not one cent of that money has ever been paid to the descendants in Mississippi, for whose benefit the judgment was obtained but it went into the fund of the Choctaw Nation West ; in other words, the Choctaw Nation West recovered, on account of the violatioji of 64969—15 19 290 EHrROLLMENT IN THE Er7E CIVILIZED TEIBBS, articles 14 and 19 of the treaty, $2,900,000 for tlie benefit and because of In- dividual injuries to part of the children of the Choctaw Nation, and then, after the Choctaw Nation West receives the $2,900,000, it denies, or rather the individuals who usurped authority in the community West denied, as will be hereinafter shown, that those for whom the cause of action accrued and on whose account these funds were received were their children. EIGHTS OP MISSISSIPPI CHOCTAWS STILL BECOGNIZED IN 1889 BY TBIBB WEST, WHILE THE TRIBAL DEMOCEAOT STILL EXISTED. In 1889, however, the generous Indian spirit was not dead In the Choctaw Nation West, and the general council of the nation, at the Instance of the rela- tives of those who were absent, fully recognizing the rights of the Mississippi Choctaws, memorialized Congress as follows (6) : " 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 citizen- ship in the Choctaw Nation; and " Whereas they are denied all rights of citizenship in said States ; and " Whereas they are invited to migrate themselves into the Choctaw Nation : Therefore be It " Resolved by Oeneral Council of the Choctaw Nation assemNed, That the United States Government Is hereby requested to make provision for the migra- tion of said Choctaws from the said States to the- Choctaw Nation. The national secretary Is hereby instructed to furnish a certified copy of this memo- rial each to the Speaker of the House of Representatives of the United States, President of the Senate of the United States, and Commissioner of Indian Affairs, with the request that they do all they can to secure the accomplishment of the object of this memorial, and this resolution shall take effect and be enforced from and after Its passage. " Approved, December 24, 1889. " B. F. Smallwood, " Principal Chief, Choctaw Nation." This resolution was not acted on by Congress, nor was the invitation brought to the knowledge of the absent Choctaws, but this shows a perfect recognition of the rights of the absent members when the tribal democracy existed. There was not then, nor has there ever been published, In accordance with the pro- vision In the treaty of 1866, a notice throughout all of five States mentioned, of the impending allotment; but a number of Mississippi Choctaws, between that time and 1906, realizing that allotment was soon about to take place, went to the Indian Territory. Those who went to the Indian Territory be- tween 1889 and 1893 were welcomed by the tribe. They had relatives In the tribe who Identified them as their kindred, and while but few of them were formnlly identified by resolution of the council, and none of them was adopted into the tribe by the ancient method of adoption — without any formal proof of their descent back to an ancestor who had received lands under article 14 of the treaty of 1830, upon the word of friends and relatives that they were de- ecendants of such ancestor, many were placed upon the tribal roll for the dis- tribution of the "leased" payment money in 1893. In 1898 the United States passed its first act looking to the Immediate dissolution of the tribal relation and to the distribution of these lands, and in 1896 the commissioner was given full powers to that end. From 1893 on, it is doubtful if any act of the tribe would have been sufliclent to adopt anyone without the consent of the United States, but the tribal organization continued to attempt to accept persons who eame in, who had relatives in the tribe, and a committee on adoption was ap- pointed by the tribal organization, which committee made recommendations to the United States commission. The United States commission, acting under the act of 1893, and later the United States commission appointed under the act of 1896, were given no instructions, at that time, as to the treaty rights secured to the descendants of the Mississippi Choctaws under article 14 of the treaty of 1830. There Is no doubt, however, that a great many per- sons were put on the roll of 1896 by the United States commission who were not born in the Choctaw-Chickasaw country, and whose rights as citizens of the tribe existed solely because of the fact that they are descendants of an ancestor who did receive, or who should have received, land under article 14 of the treaty of 1830. While these people were put on without formal proof, yet practically all of them were undoubtedly entitled to be admitted to that ENBOLLMENT Ilf THE FIVE CIVILIZED TRIBES. 291 roll and should have remained upon the roll and should have been put on the final rolls; but most all of them were eventually stricken off through the scheming contrivances afterward invented, as hereinafter detailed. There were thousands of the descendants of the Mississippi Choctaws in the five States of Slississippi, Louisiana, Alabama, Texas, and Arkansas, and many scattered all over the United States, who did not know that the lands of the Choctaw Nation were to be finally distributed. RECOGNITION OP RIGHTS OP MISSISSIPPI CHOCTAWS BT HOUSE COMMITTEE IN 1887. Some question having arisen as to the rights of the Mississippi Choctaws who had not gone to the Territory, Mr. Allen, of Mississippi, from the Committee on Indian Affairs, March 3, 1897, reported House bill No. 10372, with the recom- mendation that it do pass, and also reported, after a careful examination of official documents, that the findings of the committee were — First. The Mississippi Choctaws had not lost the privileges of Choctaw citi- zens. Second. That the consummation of the treaty of 1880 depended upon the fourteenth article. Third. That the Mississippi Choctaws were not parties to any treaties subse- quent to 1830 and not bound thereby. Fourth. " Your committee therefore finds that the Mississippi Choctaws expressly retained their rights as Choctaw citizens, with the express provision that they should be allowed to live in Mississippi, and that they never relin- quished this right thus established by the treaty and can not be justly deprived thereof without their consent." This committee further added: "To prevent fraudulent claims your com- mittee thinks that no person should be recognized as a Choctaw citizen whose grandparent was not at least a half-blood Choctaw, as the Choctaw law re- quired one-eighth Choctaw blood to entitle him to rights of a Choctaw citizen." As this report was made nearly a generation ago the next descendant of one then qualified as above might only have one-sixteenth blood, and as the Choctaw law requiring one-eighth Choctaw blood in candidates for adoption was passed in 1886 and has never been applied in the making up of the rolls as they now are — there being many now on the. Choctaw-Chickasaw rolls with no Indian (7) blood and many with one sixty-fourth and less of Choctaw blood, and as in 1830 many persons were recognized as Choctaws who had no Indian blood there is no reason for now enforcing this recommendation of the com- mittee. The bill thus favorably reported by the committee in 1897 is as follows : " [H. E. 10372, Fifty-fourth Congress, second session, Mar. 3, 1897.] " Referred to general calendar and ordered printed. "Be it enacted, etc., That the United States Commissioner to the Five Civil- ized Tribes shall without delay enroll the Choctaws now resident in the State of Mississippi as citizens of the Choctaw Nation: Provided, That such Choctaws shall possess at least one-eighth of Choctaw blood and be enrolled on a special roll and be entitled to all the rights of Choctaw citizenship except In the annuity under the treaty of eighteen hundred and thirty, as therein provided." This bill was never reached on the calendar. It is the only act of legisla- tion heretofore proposed which has attempted to do justice to the Mississippi Choctaws, except the efforts of Hon. John H. Stephens, of Texas, referred to in note 16, appendix. After 1896 a great many persons were coming In from the States and claiming rights in the tribe. Most of those were not Imposters or intruders, but came in conscious of their rights under the treaty. The knowledge of these rights reserved by article 14 had been preserved by family tradition. The fourteenth article of the treaty of 1830 and the rights thereunder had been repeated by every old crone and ancient sire of the tribe around their hearthstones and camp fires for two generations. These people did not read the United States Statutes as they are printed, but the fact of the existence of this treaty pro- vision had been transmitted from generation to generation by word of mouth, as great truths have been preserved in all ages. Some of those in authority in 1898 acting for the United States and seemingly ignorant of the history of the tribe, considered all who were coming in as imposters and intruders, and in order that the rights of the Mississippi Choctaws might be recognized in making up the rolls a provision, as follows, was inserted in the Curtis Act of 1898. 292 ENROLLMENT IN THE FIVE CIVILIZED TBIBBS. BIGHTS BECOGNIZED BY CONGBESS IK 189^. Section 21, after providing that the United States Commission should use the tribal rolls as foundation for making up the rolls of those who were In the Territory, then added : " * * * No person shall be enrolled who has not heretofore removed to and in good faith settled in the nation in which he claims citizenship: Pro- vided, however. That nothing contained in this act shall be 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 have authority to determine the identity of Choctaw Indians claiming rights in the Choctaw lands under article 14 of the treaty between the United States and the Choctaw Nation September 27, 1830, and make reiKjrt to the Secretary of the Interior." It was certainly not in compliance with the rights secured by the treaty to confine the benefits of this act to those who had before then removed to the Indian Territory. It is not clear what is meant by this section as to determining identity. Many people considered that the commission had the right to enroll them as citizens. The commission itself thought so, and in 1899, upon a schedule dnted March 10, 1899, the commission (8) placed the names of 4,192 people as Mis- sissippi Choctaws, "identified" by them under this clause of the Curtis Act of 1898. They were not only identified, but their rights were considered as determined, although they were not allotted lands, as no one was allotted lands up to that time. This roll, containing 4,192 names, was transmitted to the Secretary of the Interior in 1899, and an opinion was rendered by the Attorney General that prima facie these people were entitled to enrollment, but until the final enrollment should be prepared (9) and approved by the Secretary of the Interior of all the members of the tribe the Secretary of Se Interior had the right to strike anyone off. One copy of this roll or schedule was left in the Indian office in the Indian Territory and one sent to the Secre- tary of the Interior. The Indian ofiice in Indian Territory was destroyed by fire sometime in 1899, and it is possible that the copy of the roll there was lost by that fire, but the roll sent to the Secretary of the Interior should show con- clusively the names of those who had then come before the commission for its final consideration and for what all then believed was the final determination of their rights as Choctaw citizens. One of the, remarkable things, among many remarkable things, in the admin- istration of the affairs of the tribe after this date is that this roll or schedule of March 10, 1899, has never been mentioned as forming a part of the rolls which were considered by the Secretary of the Interior when the final rolls came to be approved in March, 1907. It does not appear that any of these people were put upon the final rolls (10). Even if finally " identified " by the Secretary of the Interior, that identifica- tion occurred during the last week of the final closing of the rolls, and as he must remove to the territory after identification and before the closing of the roll, and as this was impossible, they were shut off from the final roll. (See tes- timony of Mr. Howell, of the Interior Department, p. 171, hearings, 61st Cong., 2d sess.) ENTERS M 'MURRAY. In 1899 Mansfield, McMurray & Cornish began their first employment with the Choctaw-Chickasaw tribe, and early in 1899 the genius of this remarkable firm was rampant in discovering methods by which the roll of membership in the Choctaw-Chickasaw tribe could be limited. FIRST ATTEMPT OF M'MURRAY TO LIMIT RIGHTS OF MISSISSIPPI CHOCTAWS. In the Muskogee agreement of February 7, 1901, which was an agreement entered into between the United States Commissioners and the Commissioners for the Choctaw-Chicknsaw tribes, but which agreement was not adopted by Congress, this schedule of March 10, 1899, is definitely recognized and adopted in an attempt at that time to confine the claims of the Mississippi Choctaws to that roll and such further limitations as are therein provided. Section 13 of this agreement of February 7, 1901, contained the following provision : "All persons heretofore identified by the Commission of the Five Civilized Tribes as Mississippi Choctaws, and whose names appear upon the schedule BNKOLLMENT IN THE FIVE CIVILIZED TRIBES. 293 dated March 10, 1890, prepared by said commission under the provisions of the act of Congress approved June 28, 1898 (30 Stat. 495), and such full-blood Choctaw Indians residing in the State of Mississippi, and such full-blood Choc- taw Indians as may have removed from Mississippi to Indian Territory, as may be identified by said commission, shall alone constitute the Mississippi Choctaws entitled to benefits under this agreement. All Mississippi Choctaws (sec. 14) as herein defined, who shall remove to and in good faith establish their resi- dence upon the lands of the Choctaw and Chickasaw tribes within six months after the ratification of this agreement, shall be enrolled by said commission upon a, separate roll, designated 'Mississippi Choctaws,' and lands equal in value to lands allotted to citizens of Choctaw-Chickasaw tribes shall be set apart for each of them. All such persons who reside continuously upon the lands of the Choctaw and Chickasaw tribes for a period of three years after enroll- ment, as above provided, shall, upon proof of said continuous residence, receive patents as provided in the Atoka agreement, and they shall hold the lands thus allotted to them, as provided in the Atoka agreement for citizens of the Choc- taw-Chickasaw tribes." As stated above, the agreement of February 7, 1901, was never ratlfiefl, and Is now of no relevancy except as showing that everyone Interested regarded this schedule of Mississippi Choctaws of March 10, 1899, as a final finding of rights, In those who were on that roll. m'mukbay destbots all bights by eeqtjibinq impossible acts as conditions pbecedent to enjoyment op the bight. On the 21st day of March, 1902, an agreement was made between the then United States Commission and the Commissioners for the Choctaw-Chickasaw tribes, in the preparation of which agreement the firm of Mansfield, McMurray & Cornish, then absolutely dominating the affairs of this joint tribe, had abso- lute control. This firm not only created the Citizenship Court by this agreement of the 21st day of March, 1902 (adopted by Congress upon the recommendation of the commission, as the act of July 1, 1902), but secured the insertion of the following provisions, with relation to the Mississippi Choctaws : "Aet. 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 Stat., 495), as Mississippi Choctaws entitled to benefits under article 14 of the treaty between the United States and the Choctaw Nation, concluded September 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 the said identifica- tion as Mississippi Choctaws shall be enrolled by such commission as Mississippi Choctaw entitled to allotment as herein provided for citizens of the tribes, sub- ject to 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 application all full- blood Mississippi Choctaw Indians, and the descendants of any Mississippi Choc- taw Indians, whether of full or mixed blood, who receive a patent to land under the said fourteenth article of the treaty of 1830, who had not moved to and made bona fide settlement in the Choctaw-Chickasaw country prior to June 28, 1898, shall be deemed to be Mississippi Choctaws entitled to benefits under article 14 of the said treatvof September 27, 1830, and to identification ag- such by said commission, but this direction 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 appli- cant who is not a Mississippi Choctaw of the full blood, or who is not the d^ scendant of a Mississippi Choctaw who received a patent to land under said treaty or who Is otherwise barred from the rights of citizenship m the Choctaw Nation. All of said Mississippi Choctaws so enrolled by said commission shall be upon a separate roll. , „ , . ^ * .i.i, t- "42 When any such Mississippi Choctaw shall have m good faith contmu- ouslv resided upon the lands of the Choctaw and Chickasaw Nations for a period of three years, Including his residence thereon before and after such rarollment, he shall, upon due proof of such continuous bona fide residence, made in such manner and before such officer as may be designated by the Sec- retary of the Interior, receive a patent for his allotment, as provided m the 294 ENROLLMENT IN THE FIVE CIVILIZED TRIBES. Atoka agreement, and he shall have 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 lands 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 be 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, 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 Choc- taw, or his heirs or representatives, if he be dead, fails to make proof of such continuous 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 enroll- ment, he and his 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 distrib- uted 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 patents shall issue to the purchaser." Slansfield, McMurray & Cornish recognized that no person could claim mem- bership in the Choctaw Tribes upon any principle of law except that he based his claims upon the right of citizenship by birth within the tribal environment (the father or mother beng a citizen), unless prior to 1893 he had been for- mally adopted by the tribe or unless he furnished proof of his rights under some treaty, independent of birth to tribal environment. The clauses above not only impose conditions upon Mississippi Choctaws which do not exist in the original treaty of 1830, but. Impose conditions which violate the very pur- pose and spirit of article 14 of the treaty of 1830. Article 14 of the treaty of 1830 gave rights which existed without removal. The retention in the treaty of 1830 of the interest in the Choctaw lands by those who remained in Missis- sippi was because they did not remove to Indian Territory. THE EEQUIKEMENT THAT ANCESTOR MUST HAVE BECEIVED A PATENT INJECTED BY M'MTTEBAY. The conditions inserted in this "agreement" of 1902, adopted as the act of July 1, 1902, require not only removal to the Territory, but require proof of descent from an ancestor who had received a patent to land under article 14 of the treaty of 1830. The ofl5cial reports show that not 3 per cent of those entitled to receive lands under article 14 had ever received a patent to such lands. Section 41 cut out from identification all those Mississippi Choctaws who had moved to the Choctaw-Chickasaw country prior to June 28, 1898, be- cause the method of ideutification therein provided applied only to those who had not moved prior to June 28, 1898. A great many Mississippi Choctaws had gone into the Territory and had not been able to be enrolled by the commission prior to June 28, 1898. The identification contemplated by the first clause did not entitle these Mississippi Choctaws to enrollment. Under the provisions, he might make bona fide settlement within the Choctaw- Chickasaw country within six months after identification, but he could not get any land upon which to settle until after he should be enrolled. How could he settle unless lands were given? The old method of identification by the tribe had been abandoned, and if the Mississippi Choctaw went into Choctaw- Chickasaw country he was liable to be ejected as an intruder because not on the tribal rolls, even if he went to Indian Territory for the mere purpose of identiflc.ntiou. The "ideutification" was held by the Attorney General several years later not to be the Identification by the commission (9), but the final approval by the Secretary of the Interior. I repeat, the Identification was held to be the approved one by the Secretary of the Interior ; and yet, after the commission had " identified " a number of people and was preparing to enroll them, Mansfield, McMurray & Cornish secured an injunction against the com- mission enrolling them upon the ground that the " identification " had occurred more than six mouths prior to that time, and that the claimants had not re- moved to and made settlement within the Indian country within the six months ENROLLMENT IN THE FIVE CIVILIZED TRIBES. 295 after said identification. This injunction was granted, and tlius the claimants were sliut off from settlement in tbe Territory and returned to Mississippi, altbough more than a year afterwards the Attorney General held that the • identification" contemplated was final "identification" by the Secretary of the Interior. The persons affected by this injunction who were compelled to abandon their claims were never thereafter notified of a final identification by the Secretary of the Interior. They never thereafter had any opportunity to make settle- ment. They were always under this scheming legislation written by McMurray (and of which he boasts in his many claims for fees) in the situation of the man who could not get across the river until he should get a boat and who could not get a boat until he should get across the river. In fact, after being prevented from iflaking settlement, there is nothing in any of the official re- ports to show that they were afterwards considered by anyone. Considering the many complexities and inconsistencies which are shown to exist and which arose under this act, it is certainly the vilest piece of legis- lation ever enacted to torture a poor, distressed, and unfortunate people and deprive them of their rights. Is this statement considered a mere conclusion? Let us examine sentence by sentence the act and apply it to the flesh-and-blood conditions : SETTLEMENT MADE A CONDITION AND SETTLEMENT PBEVENTED. (Sec. 41, act of July 1, 1902.) The first sentence relates only to those who had been identified by the com- mission. No new applications were permitted or contemplated under this first sentence. They were required to have made bona fide settlement within six months after such identification, and upon proof of such settlement within one year after such identification, the commission might enroll them (subject to final approval of the Secretary of the Interior) as Mississippi Choctaws en- titled to allotment as citizens of the tribe. Now, this sentence apparently grants six months for settlement and one year for proof after date of identifi- cation, but six months — yes, more than one year — had already elapsed after Identification before this act was passed. The attorneys for the tribe, Mansfield, McMurray & Cornish, as soon as the commission acting under the first sentence of this act attempted to enroll those already identified, secured an injunction restraining enrollment on the allega- tion that the six months for settlement had already expired. (10) Now, let us see from the official reports how many persons had applied to the commission as Mississippi Choctaws prior to the adoption of this act of July 1, 1902. The report of the Secretary of the Interior shows that up to the end of the fiscal year, i. e., June 30, 1902, 19,791 persons had applied for " identification as Mississippi Choctaws " — 19,791 persons. The report of the Secretary of the Inte- rior (pp. 25-29 for the year 1902) states that 9,476 applications were heard prior to July 1, 1901 (presumably in Indian Territory) ; that 2,192 applications were heard at Atoka between July 1, 1901, and October 31, 1901 : that 4,503 appli- cations were heard at Muskogee between November 1, 1901, and June 30, 1902, making a total of 16,171 applications made outside of those in Mississippi, and that between July 1, 1901, and April 30, 1902, which was the last appointment in Mississippi, there were heard In Mississippi the applications of 3,620. THE INTERIOR DEPARTMENT SAYS THE VITAL AND ONLY QUESTION CONSIDERED WAS WHETHER ANCESTOR HAD RECEIVED A PATENT TO LAND UNDER ARTICLE 14. This report of the Secretary of the Interior shows that in the beginning of the work of the examination by the department all testimony was reviewed and passed upon, but that after 1902 the vital and only question (11) considered was whether or no the name of the ancestor appeared as one who hart received a patent to land under article 14 of the treaty of 1830, and any testimony as to the " Choctaw blood of the applicant " was regarded as irrelevant and immate- rial provided the applicant had not "reasonably demonstrated that he was descended from an ancestor who had received a patent to land under article 14 of the treaty of 1830, and that he had no nearer ancestor who had not re- ceived such patent." Now, it must be kept in mind that these conditions, prescribing this strict proof, were subsequent conditions— conditions that were Inserted in the law 296 ENROLLMENT IN THE FIVE CIVILIZED TRIBES. after many of the applications had been heard; after the applicants had ap- peared before the commission, had produced thir family witnesses, and after, as they believed, they had been fully identified as Mississippi Choctaws by the commission, this law is passed and the law clerks of the department proceed to examine the testimony taken prior to the passage of the law of July, 1902, and while the Ignorant applicants (who were denied legal aid or counsel) igno- rantly believed that (and in which belief they were encouraged by the mem- bers of the commission, the officers of the United States Government, and the tribal officials) at the time of making application the only necessary testimony was to show their relationship to those already on the rolls in Indian Territory. Their cases were eventually rejected for the absence of evidence which no one up to that time thought was necessary to be produced. This requirement — that the ancestor had received a patent to land — as a condition of the award of the rights claimed, was, as McMurray well knew, sufficient to exclude them; for while their ancestors should have received patents, none, or but few, had re- ceived patents. The evidence upon which the tribe west had received in- demnity from the United States for the failure to give the lands to the claim- ants' ancestors should certainly have been sufficient, as against the tribe west, to prove the ancestors' right to land under article 14 of the treaty. To add to the evidence of Idiocy displayed by the subordinates of the Interior Department in the consideration of this sub.iect, the identical report above re- ferred to, while attempting to show that the applicants already heard should be re.iected because of failure to have made strict proof of descent from an ancestor who had received a patent to land under article 14 of the treaty of 1830, also states that there are in Mississippi certain " full-blood Choctaws who are unquestionably the descendants of Choctaw Indians who resided in Missis- Bippl at the time of the treaty of 1830." The enrollment of the small number finally enrolled as Mississippi Choctaws was by favor and not by law, treaty, or custom. And these, or some of them who came under the special protection of whatever special agent was sent later in 1903 to Mississippi, were eventu- ally sharked up and enrolled and carried to Indian Territory at the Govern- ment's expense, and for which Charles F. Winton's fisslgnee and other attor- neys, without any contract with any individual, are now attempting on quantum meruit to recover 50 per cent of their allotments in the Court of Claims. (12) Suppose these Indians were full-blood Choctaws and were the descendants of Choctaw Indians who resided in Mississippi in 1830, why should they be en- rolled? Mississippi has still many Indians who are penniless, .-ind they should be provided for, but not necessarily out of this fund, and why should those who did not and could not claim under the treaty, and who had had no connection with the tribe west or with the civilized portion that remained in Mississippi under article 14 of the treaty of 1830, be given their allotment, while the per- sons for whose benefit article 14 of the treaty of 1830 wns mode are denied their rights by the application of a retroactive law, without any opportunity to produce additional evidence? I shall recur later to this phase, but now returning to this diabolical act of July 1, 1902, let us see what its further provisions were. No new applications were possible, except as to those who had not moved to and made bona fide settlement in the Cboctaw-Chickasjiw country prior to June 28, 1898, and to such persons who bad not moved prior to .Tune 28. 1898, ippllcations might be heard within six months after the passage of this .TCt. i. e., July 1, 1902. Where were the applications to be made? In Indian Territory, of course, because no other place was designated, and there was the office of the commission. No appointments were mnde by the commission for hearing of applications in Indinn Territory, and no publication thnt the commission would receive such applications was made anywhere within the six months provided by this act. On tbe contrary, the commission, in September. 1902 (see p. 16, S. Doc. No. 505, 60th Cong., 1st sess.), published notices generally of appoint- ments In Indian Territory, stating the times arid places when .ind where the applications for citizenship would be heard, but distinotlv stated in these advertisements that " no applications for identification as Mississippi Choctaws will be heard at these appointments." Is it nny wonder that the Secretary of the Interior should say in his report applicants " were unable to produce proof," for how was the proof to be made? It is shown by Mansfield, McMurray & Cornish, in their annual reports to the no-called tribal organization, that all of these devices of legislation originated with them. ENROLLMENT IN THE FIVE CIVILIZED TRIBES. 297 THB CBBATION OP A COTJBT WHOSE DECISIONS WERE PBACTICALLT WBITTEN BEFOBS THE COUBT WAS CHEATED. With but few exceptions, the " citizenship court cases " are- really Mississippi Choctaw cases. This same act of July 1, 1902, adopted the " agreement " by which was created what is now known as the citizenship court. Over 4,000 persons, nearly all of whom should have based their rights on the fact that they were descendants of fourteenth article of the treaty of 1830 Choctaws, were by the judgments of the United States court admitted to citizenship upon proof of tribal recognition and of family relationship to those on the tribal rolls. Mansfield, McMurray & Cornish secured the passage of this act, by which « special court, called the citizenship court (13), was created to review these final judgments of the Unlited States circuit court, and was by the act authorized to set aside such final judgments if it should find either : First. That the chiefs of both tribes (the Choctaw and Chickasaw) had not been notified of the appeal from the commission to the United States court. Second. That the United States court had heard on the appeal any additional testimony other than that submitted to the commission. Now, everyone knew that both chiefs of both tribes had not been notified— and there was no reason why they should be — and everyone knew that addi- tional testimony had been heard in many cases on appeal, so that the passage of this act in effect set aside and nullified all of these judgments, for the reversal was certain of the judgment of the United States circuit court. The act further went on to provide that If and when said judgments of th« United States circuit court were set aside by the citizenship court, if the appli- cant within 90 days after the reversal should transfer the case to the citizenship court, the citizenship court might then try the case and render such judgment as the United States circuit court should have rendered in the first trial (14). After all these judgments of the United States circuit court were reversed a few only were transferred to the citizenship court within the 90 days for trial. These were decided upon the testimony originally before the commission, and only an Insignificant number admitted. In the cases where the commission had originally admitted the applicant and the attorneys for the tribe had appealed to the United States court, it was generally supposed, and for a time so held by the Department of the Interior, that a reversal by the citizenship court of th» judgment of the United States circuit court did not affect the first favorable decision of the commission, but it was eventually (loug after the 90 days had ex;plred) decided that the reversal of the judgment of the United States circuit court destroyed the judgment of that court and of the commission, and that unless the applicant had transferred the papers to the citizenship court within 00 days after the reversal, although no notice of the reversal was provided for, he was ofC the rolls finally and was without remedy (14). NO MERE EEFERENCE BY CONGRESS OP THIS MATTES TO A COTJBT IS SXJPFICIENT — CONGEESS MUST NOW DEFINE THE RIGHTS ANEW. If any legislation looking to correct the infamies of the " citizenship court " (14) is ever ena,cted, it must be borne In mind that most of those claimants base their right to enrollment on the fourteenth article of the treaty of 1830, not that their ancestors recei\-ed a patent to land under that article, but that their ancestors were entitled to land under that article. The mere cre.ntlon of another tribunal to try their rights would be of no avail to them without the recognition that some proof of rights under article 14 of Oie treaty of 1830 will be received other than that a patent for land was issue* to the ancestor under said article. THE MOTIVE. But, gentlemen of the committee, while I have placed all of these acts in their natural sequence and have shown how Congress has unwittingly destroyed all remedy for the rightful claimants, I have not attempted to show you the motiv* of those who instigated these act;^. Fortunately, however, the motive and a full explanation of why this legislation was enacted is contained in what may be Droperlv called the " confessions " of Mansfield, McMurray & Cornish. Mans- field McMurray & Cornish were paid $750,000 for their special services, on a commission basis, on the value 6f the rights of persons ^vho were excluded from 298 ENEOLLMBNT IN THE FIVE CIVILIZED •TEIBBS. the rolls. In addition, as shown by the testimony before the committee investi- gating Indian contrncts last Congress, the firm had expended of the funds of the tribe nearly $500,000 in expenses and in fees to that firm. In addition thereto they have engrossed to themselves the practical control of the royalties arising from the coal leases. Many of the coal leases were actually made in Mr. McMurray's name. None of the leases, may it safely be said, were made unless they had a finger in the pie. In addition Mr. McMurray has sought to have approved by the Government of the United States a contract by which he was to sell, for a commission, the coal lands in lump, although that duty was cast upon the Secretary of the Inte- rior; and, not satisfied with that, he has now a contract with many individual beneficiaries now on the rolls of 10 per cent of what may hereafter be received by each, although he has no duty to perform in that respect except to collect hi» fee from the individuals when they receive their distribution. m'murray's own beports. In attempting to justfy these claims for fees, Mr. McMurray had made report! from time to time to the so-called tribal organization, and I desire to read in their natural order these reports of McMurray to the so-called governors of the Choctaw and Chickasaw Tribes, conclusively showing that all of this legisla- tion was designed by that firm and that the Interior Department was imposed upon by this firm, and the committees of Congress, in reliance upon the Interior Department, unwittingly made possible the temporary success of these most diabolical schemes. The following references appear in volume 2 of House Report No. 2273, Si.xty- 9rst Congress, third session : "Mansfield, McMurray & Cornish were employed July 20, 1899." (Exhibit «0, p. 1199.) THE MtrSCOGEE AGREEMENT WHICH FAILED. They reported October 14, 1901, as to the " agreement " which they attempted to have Congress adopt, but failed: " If this treaty can be ratified as drawn, further litigation and contention will be unnecessary, as the citizenship clause agreed upon will have the effect of rejecting outright the claims of the court claimants and make possible an early and final settlement of Choctaw-Chickasaw affairs." * * * "If the treatj can be ratified, further litigation and delay will be unnecessary" (p. 1211). PREVENTING SETTLEMENT OF MISSISSIPPI CHOOTAWS IN THE TEBRITORT. As showing how little chance the Mississippi Choctaws had to make " settle- ment " in the Choctaw-Chickasaw country, I call attention to page 1213 of sami document, a report of Mansfield, McMurray & Cornish as to their activities: " In June of this year one T. A. Bounds, accompanied by a force of laborers, mostly negroes, came from Texas into the Choctaw Nation and began to fence up a large area of the public domain near Kiowa, aggregating some 10,000 acres. "Immediately upon receipt of information of these operations we laid th» same before the principal chief of the Choctaw Nation and the governor of the Chickasaw Nation and suggested a conference with them to devise plans to prevent this flagrant and unwarranted encroachment upon the public domain. A meeting was accordingly had, and we were directed, as general counsel for the tribes, to file a suit in the United States court to enjoin Bounds and his associates and also to present the matter to the Interior Department and re- quest immediate action under the intercourse laws. We at once acted as directed. " Upon a hearing of the suit in the United States court for the central district of the Indian Territory it developed that Bounds and his asociates held powers of attorney from exceeding 200 alleged Mississippi Choctaws, and when this developed the court promptly enjoined Bounds and all connected with him from fencing the public domain or doing any act that affected the lands of the tribes. "The decision of the court was most grateful and opportune, as many per- sons were engaged in procuring powers of attorney from alleged Mississippi Choctaws with a view of fencing and taking possession of lands in the Choctaw ENEOLLMBNT IN THE FIVE CIVILIZBD TRIBES. 299 and Chickasaw Nations, and but for this injunction It is diflBcult to Imagine to what extent such practices would have been taken. " So far as we have been able to learn, no further operations of this character nave been attempted, either by Bounds and his associates or anyone else, and If information thereof comes to us we shall take immediate and vigorous steps to prevent the same, as in the Bounds case." In such cases where Congress has not followed the wishes of this firm, the acts of Congress were void in the opinion of this firm. This is admitted by the following extract from their report (p. 1213, Oct. 14, 1901) : " We contended that the act of Congress was void, because it took title out of the Indians and vested it in another, and that so long as the Choctaw and Chickasaw governments were in existence they were sovereign in all matters of government." Later, after Congress had been imposed upon and had adopted their conten- tion, the acts of Congress were and now are, as they contend, too sacred to be mentioned slightingly. It is evident that McMurray was jealous of the sovereignty of the United States. " THE CONSTKUOTION URGED WHICH WOULD DEFEAT ALL APPLICANTS." At page 1216, same document, this firm boasts of its urgency of such a con- struction of the fourteenth article of the treaty of 1830 "as would certainly defeat the claims of practically all of these applicants." The exact language is : " Since the passage of the Curtis Act, and particularly within the past year, the Dawes Commission has been flooded with applications of persons claiming to be Mississippi Choctaws. The applications of exceeding 20,000 of such per- sons have been filed. We have constantly urged upon the commission in oppo- sition to these claims, both orally and by written and printed arguments, such a construction of the fourteenth article of the treaty of 1830 as would certainly defeat the claims of practically all of these applicants. We are gratified to be able to state that the commission has rendered a judgment in nearly all of these cases, and in practically every instance decision has been in favor of the nations and against the applicants." * ill « * * * « After the act of July 1, 1902, which adopted the so-called Atoka agreement, this firm then reported the labor they had performed in the following language (p. 1218, same document) : THE ACT OF JULY 1, 1902, WAS M'MUBKAT'8 WORK. "As regards the specific services which we have rendered as general counsel for the Chickasaw Nation in connection with the supplementary agreement, we have to report that the first meeting for its negotiation was helQ a* Muskogee on the 10th of November, 1901. At this and all of the subsequent meetings held In the Indian Territory a member of our firm was constantly present, and at most of the meetings two members were present. It the first week of January our Mr. McMurray proceeded to Washington and remained there constantly until after the ratification of the agreement of July 1 of the present year. In the first week of February our Mr. Cornish proceeded to Washington and re- mained there until after the agreement was signed and transmitted. " Since the ratification of the agreement by Congress we are frank to state that all of the members of our firm have been constantly engaged in rendering euch assistance as lay in their power, in placing the provisions of the agree- ment intelligently and favorably before the Choctaws and Chickasaws, to ths end that it might be ratified by their votes." • « * * * * • THE CITIZENSHIP COURT ACTS AS ITS CREATOR INTENDED IT SHOULD. As to just what was decided by the " citizenship court," which destroyed the Judgments theretofore rendered by the regular United States circuit courts, the following is interesting (p. 1120, same document) : ^ ^^ . " On December 17, 1902, the court announced its decision, and therein up- held our contentions on behalf of the Chickasaw and Choctaw Nations upon 300 ENBOLLMENT IN THE FIVE OIVILIZBD TEIBES. evei7 point raised and In every pnrtlcnlar, Judicially finding, that the judg- ments theretofore rendered by the United States court for the central and southern districts of the Indian Territory under the act of Congress approved June 10, 1S96, assuming to admit persons to the right of Chickasaw and Choctaw citizenship, were void for the reason that they were rendered against one Nation only, when both the Chickasaw and Choctaw Nations were neces- sary and interested parties; and, secondly, for the reason that the action of the United States court should have been confined to a review of the record made by the Commission to the Five Civilized Tribes, and should not have extended to a trial de novo of the eases, " By this one decision the sitlzehshlp judgments upon which 4,000 persons relied for Chickasaw and Choctaw citizenship were set aside, declared null and void, and held for naught, and property of the Chickasaws and Choctaws valued at practically $20,000,000 restored to them. There have been few de- crees in the history of judicial proceedinss in this or any other country that have equaled, in point of importance and vastness of interests involved, the decree rendered by the Choctaw and Chickasaw citizenship court in favor of the Choctaw and Chickasaw Nations on December 17, 1902." « 1^ * * « * « The court claimants had been disposed of effectively by the mere passage of the act of July 1, 1902, as It was judicially construed, and, of course, as anyone now familiar with the facts must say, the court could not construe the act otherwise. It was made to destroy rights without a hearing, and It was sufficient. But the Mississippi Choctaw claimants that were not disposed of by the citizenship court still hung on, and were still in ignorance of what the act of July 1, 1902. had done to them. As to them, read the report of this firm for the year 1903, at pages 1222 and 1223 of the same document, as follows: "While it has been our idea heretofore that, as to ^^ssissippi Choctaw ap- plicants, other than full bloods, practically none would be able to establish their identity as such, yet the outcome Is involved in more or less imeertainty until final d,ecisions of rejection are rendered. We have within the past year taken up a vast number of Mississippi Choctaw cases wherein action on behalf of the Chickasaw and Choctaw Nations was necessary, and in presenting them to the commission and the Secretary of the Interior have been able, as we believe, to prevent the rendition of judgments adverse to the interests of the Nations. There yet remain a considerable number of these cases wherein the applicants allege the facts and attempt to prove them by affidavits and depo- sitions, which, if true, endanger the interests of the nations and render prob- able the rendition of decisions adverse to their interests. We are now giving and shall continue to give these cases careful attention and take such steps as In our judgment will prevent the identification of the applicants therein Involved. "There are a few cases, involving a vast number of persons, wherein the applicants are represented by attorneys of industry and ability and wherein stubborn and bitter fights are being made, both before the Commission to the Five Civilized Tribes and the honorable Secretary of the Interior for the identification of the applicants. "In these cases it has been and will be necessary for us in contesting them to adopt practically the same tactics and methods necessary to be employed in "court-claimant" citizenship cases: and, while the office and field work has entailed and will entail considerable expense, such can not be avoided, if we are to achieve the success desired, and. while in these matters we have been and shall be as economical as possible and incur no unnecessary expenses, still we feel that we can best serve the nations and protect their Interests by per- forming such services and incurring such expenses as the exigencies of tht occasion demand, as they arise from time to time." Consider this language as coming from a lawyer who was supposed to rep- resent all who were entitled to enrollment. "There yet remain * * • cases wherein the applicants allege facts * * * which, if true, endanger the interests of the nations and render probable the rendition of decisions ad- verse to their interests." If true, how could the facts endanger the interests of the " nations," unless McMurray unconsciously used the word "nations" when he really meant such persons as his firm were particularly interested in securing benefits for? ENROLLMENT IN THE FIVE CIYILIZED TRIBES. 301 Who this firm regarded as the " nations," however, is not left to conjecture. t 11 i .*^°'^'^^"®'°'i °* tl'e report for that year, at page 1231, appears the " We have proceeded at all times and upon all occasions under general and special instructions of the chief executives of the tribes, it being our purpose only to act for them in carrying out the wishes of the Chickasaws and Choctaws. "If our efforts have been attended with success in this behalf, we ascribe the results atts^ined largely to the wisdom and foresight of those whose direc- tions have guided us and the loyalty and patriotism of the Chickasaws and Choctaws in conferring upon their chief executives power and authority to act promptly and meeting the exigencies of the occasion as they have arisen, and to have the practical unanimity with which their acts to those ends hare been approved." If the- Members of Congress had ever believed that the afCairs of this tribe had been administered by the Interior Department, or that Congress had been exercising its powers, the above should disabuse their minds of that belief. • »♦♦•** In the report for year 1904, at pages 1235 and 1236, this firm reports; THE BOAST OF M'MUHRAV THAT NOT A SINOI.K MISSISSIPPI CHOCTAW HAD BEEK ADMITTED. " Next to court claimants, the most important subject included under the head of citizenship is that of Mississippi Choctaw claimants. The entire num- ber of such claimants numbered exceeding 20,000, and while fully 80 per cent of them had been finally disposed of there yet remained, a year ago, from 1,000 to 2,000 claimants who had made out claims on the face of the papers, and that If prompt and vigorous steps were not taken to oppose them it appeared prob- able that a vast number of them would be admitted and property of the tribes of the value of millions of dollars taken in the same way and as a result of the same character of proceedings as the court-claimant proceedings in 1896, 1897, and 1898. We first procured copies of all the records, and after carefully investigating and examining each case, we proceeded to take an investigation into the fact alleged, which investigations extended throughout many of the States of the Union, and the result showed the conditions existing in these cases to practically parallel the condition existing in court-claimant cases. " Testimony has been taken before the Commission to the Five Civilized Tribes at Is office at Muskogee and elsewhere and under the direction of its representatives at various places in Indian Territory and elsewhere; briefs have been prepared and filed and oral arguments made before the Commission to the Five Civilized Tribes and the Secretary of the Interior, and as a result of the attention which has been given to these cases, we are pleased to be able to report that not a single case has been decided by the commission adversely to the nation since provision was made for the defense of these cases. Prac- tically all Mississippi Choctaw cases have been decided by the Commission to the Five Civilized Tribes, but there yet remains a considerable number pending before the Department of the Interior, where the decisions of the commission have been either affirmed or reversed. It is necessary to give these cases close and personal attention until they are finally acted upon; and it is certain that a considerable number of them will be remanded by the department for the taking of further evidence before the commission. In other cases where de- cisions adverse to the Nation has been rendered before provision was made for the defense of these claims, we are asking to have such adverse decisions set aside and the cases remanded in order that the interests of the Nation may be protected. Our conclusion is that most of these eases will have to be retried before the commission and the department, and that it will require from six months to a year to secure final adjudications of all Mississippi Choctaw cases now pending." Note the above: "Not a single case has been decided by the commission adversely to the Nation since provision w.ns made for the defense of these cases." The provision for defense wns the enactment of laws written by McMurray for the express purpose of destroying the rights or for nullifying the right by deiiying a remedy. Small wonder that not a single case should be decided ad- versely under the circumstances. 302 ENROLLMENT IN THE FIVB CIVILIZED TBIBES. CONGRESS HAS THE POWEB, ANU THE DUTY IS CAST UPON IT, TO BEMEDT THISl WKONGS. In 1894 Congress sent a committee to the then Indian Territory to Investigat* the so-called tribal governnients. The following extracts are made from that report (p. 12, S. Kept., SSd Cong., 2d sess.) : " As we have said, the title to these lands is held by the tribe In trust for the people. We have shown that this trust is not being properly executed, nor will it be if left to the Indians, and the question arises, What is the duty of the Government of the United States with reference to this trust? While we have recognized these tribes as dependent nations, the Government has likewise recognized its guardianship over the Indians and its obligations to protect them in their property and personal rights." " Is it possible because the Government has lodged the title in the tribe in trust that it is without power to compel the execution of the trust in accordance with the plain provisions of the treaty concerning such trust? Whatever power Congress possessed over the Indians as semidependent nations, or as persons within its jurisdiction, it still possesses; notwithstanding the several treaties may have stipulated that the Go-vernment would not exercise such power, and therefore Congress may deal with this question as if there had been no legisla tion save that which provided for the exectition of the patent in the tribes." « « « * « « * " It is apparent to all who are conversant with the present condition in the Indian Territory that their system of government can not continue. It is not only non-American, but it is radically wrong, and a change is imperatively de- manded in the interest of the Indian and whites alike, and such change can no» be much longer delayed. The situation grows worse and will continue to grow worse. There can be no modification of the system. It can not be reformed. It must be abandoned and a better one substituted. That it will be difficult to do, your committee freely admit, but because it is a difficult task is no reason why Congress should not at the earliest possible moment address itself to this question." THE POWERS OF THE UNITED STATES HAVE BEEN USURPED. By reason of that investigation and believing that Congress had the power and the duty to protect the helpless members of the tribes from the usurpations of the so-called tribal officials the acts of 1S94, 1896, and 1898 were passed by which the United States undertook to perform its duty as guardian or trustee. The community property was to be individualized and the fund distributed to the proper persons by the trustee, the United States, and not by scheming usurpers who mask their own absolutism with the flimsy veil of the " sover- eignty " of a vanished "nation " of people whose Indian blood has been vanish- ing by mixture with the white for more than a century. By securing the pas- sage of this act of July 1, 1002, one crafty lawyer wrests the scepter from tho United States of America and has wielded all the power since. Much has been heard of the sovereignty of "the Nations of the Chickasaw and Choctaws " in testimony before this committee, and I have often wondered what that sovereignty was, where was its kingly presence, and what were its symbols. The testimony before this special committee of the last Congress re- solves all doubts. McMurray was the attorney general, the secretary of the treasury, the secretary of the interior and of the exterior, and the commander in chief of the laud and naval forces. He was the promoter of the Atoka agree- ment (15), the ambassador extraordinary and minister plenipotentiary to the United States, the creator of a court created for the express purpose of destroy- ing the solemn and final judgments of the regularly constituted courts of the United St.ites. He, in his person, exercised all of the functions and possessed all of the attributes of sovereignty. Gentlemen, it Is folly to refer this matter to the courts. The courts can only decide, as before, that Congress has absolute power in the matter. When Congress remedies the errors which It has unwittingly made and defines properly the rights of the class, then the Interior Department can decide what persons come within the class, and the courts can then, but not until then, correct the errors, if any shall be committed by the Interior Department. ENEOLLMENT IN THE FIVE CIVILIZED TEIBES. 30S In construing a similar treaty where Congress had not (as it did In this case t)y an agreement " adopted by an act of Congress, July 1, 1902) transferred Its powers to an attorney for the usurping tribal organization, the Court of Claims said, upon a very similar state of facts, with relation to the New York Indians (see opinion of chief justice Court of Claims in the New York Indians v. The United States, par, 8, 40 C. CI. Repts., p. 448) : "The two important dates In this case are 1838, when the treaty was entered Into, and 1860, when the United States opened the lands to public entry and deprived the Indians of their title without having declared a forfeiture. If, shortly after the signing of the treaty, all of the Indians had been removed to the West and all of the tract had been turned over to them, no one can doubt but that the United States would have required and the Indians would have consented to the removal of every member of each Indian community without regard to blood or citizenship or the Indian law of descent; and if shortly before 1860 the Indians had then determined to go West it can not be doubted but that the United States would have expected and required that all of the Indian communities as then existed should remove if all of the land was to be enjoyed by them. " During that 22 years there was disintegration and change in each com- munity, and during that 22 years the agreement was kept alive by the inaction of the parties, by the failure of one of them to declare a forfeiture. The ques- tion, 'Who are the community?' continued during that 22 years, and it would have been answered at the end as at the beginning. If, in 1859, both parties had determined to carry the treaty into effect, there would have remained the same intent which existed when the treaty was made — that all persons attached to an Indian community should go and should be provided for. The United States wished the one; the Indians expected the other. Consequently, the court must adopt a rule of descent or participation which would embrace all persons whom it was the policy of the United States to remove; and this rule being ex necessitate rei, once established must continue. A court can not have one rule for one period of time and another for another period of time. The white wife and her children born between 1838 and 1860 were as much Indians within the intent of the treaty as any full-blooded Indian in the six nations; and what was the rule during that period of time must continue to be the rule up to the time of the judgment or the satisfaction of it ; that is to say, the children of white mothers and Indian fathers affiliated with the tribes must be reckoned as Indians. The court must look upon the community and its members as such, and can not turn aside into the genealogy of indi- viduals or be turned aside by the peculiarities of Indian laws and customs. This is not a question of Indian citizenship or tribal custom or communal ownership in Indian property, but simply a question of contract of the subject matter and purpose of a contract and of the intent of those who entered into it." THE INFLUENCES AGAINST THE BELIEF SOITGHT. McMurray has organized what is called the " Treaty Rights Association " In the Choctaw and Chickasaw communities in the State of Oklahoma. The object of this association is. as its name implies, to Insist upon the provisions of the Atoka agreement as having the binding force of a solemn treaty with a sovereign nation. Incidentally, of course, this association also promotes McMurray's interest by Inducing the favored ones now upon the rolls to execute individual contracts with McMurray, by which he gets 10 per cent of what each favored one may receive. (H. Rept. No. 2273, 61st Cong., 3d sess.) Since 1871, when Congress, by a well-considered act, declared that no treaty with Indian tribes should thereafter be made, no treaties have been made, and Indians have been governed by acts of Congress. It is not conceivable because McMurray smuggled through Congress in 1902 an " agreement " between him- self and the officers of the Dawes Commission, who were absolutely ignorant of the effect of the agreement, that this agreement in any way binds Congress so as to prevent it from righting these wrongs or that Congress intended by this smuggled act to change its policy. , . ^. ^, In fact this agreement violates the express provisions of the last binding treaty made between the United States and the Choctaw-Chickasaw Tribe. The treaty of 1866 expressly prohibited the general assembly of the Choctaws «nd Chlckasaws from enacting any law inconsistent with then existing treaty 304 BSTKOLLMENT IN THE FIVE CIVILIZED TBIBES. Stipulations, and the rights secured to individuals under the treaty of ^830 wer» expressly declared to be in force. ( See note 5, appendix. ) The powers of the general assembly of the Choctaw-Chickasaw Tribe were limited by this treaty of 1866, and no one can be bold enough to openly declare that, after there had ceased to be a general assembly in the Choctaw-Chicka- saw Tribe and McMurray was doing all that came up to be done, McMurfay would have authority to do that which would have been prohibited to the general assembly — had there been a general assembly. McMurray successfully invoked the power of Congress to destroy rights fully vested by the solemn final judgments of United States circuit courts by securing, In an unguarded hour, the creation of that judicial monstrosity — the citizenship court. At the same time, while the mind of Congress was Intending to give the Mississippi Choctaws the opportunity to avail themselves of their treaty rights, he, by the subtle contrivances before detailed, defeats the intention of Congress and effectively secured the nullification of such treaty rights. The Courts have upheld this act of July 1, 1902, as a constitutional exercise of the supreme power of Congress over the subject matter, but this same supreme power of Congress still exists. If Congress had the power to commit or to permit a wrong. Congress has the power to correct the wrong and to vindicate the right. WHAT ARE THE ARGUMENTS AGAINST THE COBRECTION OF THESE WRONGS. Since 1907, when the rolls were finally closed, there has been constant protest to Congress. Volumes of testimony have been printed, relating cases of injus- tice and hardship done individuals. This testimony does not convey one- hundredth part of the injustice done. The judges of the citizenship court have been abused, the members of the Dawes Commission have been questioned, and many suggestions have been made of resort to courts for relief, and it has been lately suggested, particularly by those who are opposed to reopening the matter generally, that the Interior Department and the Committee on Indian AfCairs with the attorneys for the tribe get together and agree upon a list of particular persons who should now be added to the rolls ! Is this an effective remedy against infamies as numerous as have been committed under this act of July 1, 1902? Is this a plan of distribution consistent with the dignity and duty of the United States as guardian and trustee? Would this be an administration of law and justice, or would it be a con- tinuation of the rule of favor and graft which has gone on so long unchecked? Many good people in Oklahoma have opposed, and still oppose, a reopening of this matter on the alleged grounds that " titles will be unsettled," that to longer delay the final winding up of the tribal property would retard the de- velopment of Oklahoma, and would delay the right of the State to subject property to taxation. These grounds no longer exist; this argument is, by recent events, made untenable and of no force or effect, for the reason that all of the lands have now been allotted or sold, except the coal lands, and the surface of the coal lands is now a.uthorize^ to be sold. No bill now before Congress for the relief of those Injured by the denial of a remedy contemplates anything except a resort to the money proceeds of the sale of these lands — ^which money proceeds are now, or soon will be, in the control and custody of the United States. To grant the relief asked will simply grant to those entitled to it what is their own. This affects no innocent purchaser or person. It only prevents those now on the rolls from receiving more than they are in justice and law entitled to receive. The claim that to reopen the roll will open a flood of perjuries to establish rights should not be heeded. Every lawsuit might be dispensed with on thi« ground. There is no more opportunity for perjury in establishing a claim in this case than in any suit for the recovery of land, and the United States has ample powers to protect against perjuries. It is remarkable that those who were admitted without proof — as a matter of favor— as many were, should so greatly fear perjury in judicial examination of others' rights. Some base their opposition on the ground that there should be an end to contention and that the act of Congress fixing March 4, 190T, as the date of closing the rolls, was a " statute of repose," and analogous to the statute of limitations. Gentlemen, the analogy is imaginative ! It does not exist in fact rhe statute of limitations proceeds upon three principles : First, the protection ENEOLLMBNT IN THE FIVE CIVILIZED TRIBES. 305 Of innocent purchasers; second, the security of land titles — the questioning of which may delay utilization of lands and production of wealth, but— third, the statute of limitations can never be invoked unless the claimant has had at least one day in court — unless there has been, some time, somewhere, an op- portunity for his claim to be heard. There has never been a time when the Mississippi Choctaw could produce proof. There has never been an hour when the lawful proof of his rights might be heard by anyone. HE ASKS HIS DAY IN COTJET. This essential factor in all statutes of limitations has not heretofore existed. Until it does it is idle to speak of the act closing the rolls as a " statute of repose." These rights have been covered volumes high with verbiage, with distinctions invented by the crafty lawyers who committed these wrongs. In attempting to defend themselves in the investigation of the alleged at- tempted bribery of Senator Gore by Hamon (alleged to be in McMurray's interest), McMurray turned over the report's of his firm which, he claimed. Justified their enormous fees. These reports reveal how the truth has been distorted and how rights of the claimants have been destroyed. Will Congress remedy the wrongs committed? Bbiei'. I. The reservation in the fourteenth article of the treaty of 1830 was a reserva- tion in favor of those who remained in Mississippi of all the property rights of citizens of the Choctaw Nation and of all property rights which spring from citizenship rights (except under certain conditions, as to the annuity existing in 1830). All rights now enjoyed by those upon the rolls spring from citizen- ship. The reservation of the rights of citizens is a reservation of the right to per capita distribution of the national, community, or corporate property. (Journeycake v. Cherokee Nation, 155 U. S., 190, 208; Cherokee Nntion v. Hitchcock, 187 U. S., 294, 306; Stephens v. Cherokee Nation, 174 TJ. S., 445.) II. The Choctaws west are estopped by having received damages from the United States for the failure of the United States to perform the stipulations of article 14 of the treaty of 1830 (which was made with, and for the benefit of, the Mississippi Choctaws), from denying that the persons injured by that fail- ure are entitled to the rights of citizens of the Choctaw Nation. Further, having been permitted to use ordinary credible evidence to establish the rights of these persons in that proceeding, the Choctaws west can not now repudiate that evidence. (Par. 10, opinion of Court of Claims, May 15, 1905, in New York Indians v. United States, 40 C. Cls., Eepts.) Appendix. The notes below are referred to in the statement and argument by numbers : Note 1. — Treaty of Dancing Babbit Creek confirmed September 27, 1830, printed at page 221, Volume II, Indian Affairs — Laws and Treaties (S. Doc. No. 452, 57th Cong., 1st sess.). NOTE 2. — By the act of Congress of March 3, 1837 (5 Stat. L., 180), a commis- sion of three was provided, to be appointed by the President, to meet in Missis- sippi and there "proceed to ascertain the name of every Choctaw Indian who was the head of a family at the date of the treaty of Dancing Rabbit Creek who had not already obtained a reservation under said treaty and who can show by satisfactory evidence that he or she complied or offered to comply with all the requisites of the fourteenth article of said treaty to entitle him or her to a reservation under said article; and also the number and names of all unmar- ried children of such heads of families who. formed a part of the family and were over 10 years of age, and likewise the number and name of the children of such heads of families as were under 10 years of age," and report to Con- gress, etc. , , ^ ^ ,, ., 1. (Note— The evidence taken under this and subsequent acts was all used by the Choctaw Nation west in the suit of the Choctaw Nation against the United States and upon that evidence was based the judgment against the United States' As shown by the act of February 22, 1838, the evidence as to the in- luries done was confined to those who had not removed to Indian Territory, and by the act of August 23, 1842 (5 Stat. L., 513), the power to take evidence 64969—15 20 306 ENROLLMENT IN THE FIVE CIVILIZED TRIBES. was enlarged so as to inclucle tlie failure to award the provisions of the nine- teenth article as to specific reservations in Mississippi.) Notes 3 and 4. — See exhaustive record in the case of The Choctaw Nation v. United States in the Court of Claims, No. 12144, containing full reports of the several commissions and the evidence taken in detail. Note 5.— Treaty with Choctaw and Chickasaw April 28, 1866 (p. 702, Vol. II, Indian, Affairs — Laws and Treaties, S. Doc. No. 452, 57th Cong., 1st sess.). — Section 4 is as follows : " The general assembly shall have power to legislate upon all subjects and matters pertaining to the intercourse and relations of the Indian tribes and nations resident in the said Territory, the arrest and extradition of criminals escaping from one tribe to another, the administration of justice between members of the several tribes of the said Territory and per- sons other than Indians and members of said tribes or nations, the construction of works of internal improvement, and all laws enacted by said council shall take effect at the times therein provided, unless suspended by the Secretary of the Interior or the President of the United States. No law shall be enacted Inconsistent with the Constitution of the United States or the laws of Congress or existing treaty stipulations with the. United States; nor shall said council legislate upon matters pertaining to the legislative, judicial, or other organiza- tion, laws, or customs of the several tribes or nations, except as herein pro- vided for." Section 45 is as follows: "All the rights, privileges, and immunities heretofore possessed by said nations or individuals thereof, or to which they were entitled under the treaties and legislation heretofore made and had in connection with them, shall be, and are hereby declared to be, in full force, so far as they are consistent with the provisions of this treaty. Note 6. — Act of the council of the Choctaw Nation approved December 24, 1889, as certified by J. B. Jackson, national secretary, is printed at ]>age 3 of Senate Document, Fifty-fourth Congress, second session. , Note 7. — Choctaw Indian. — What is a Choctaw Indian? Undoubtedly one a native of that tribe, or one of any race adopted into the tribe, or one whose membership is secured by treaty made when the tribe had power to make treaties. At this time there are thousands of white persons upon the final rolls of the Choctaw Tribe who make no claim of belonging to the Indian race ; there are many persons who claim to be one one-hundred-and-twenty-eighth of Indian race ; there are hundreds of persons who claim to be one sixty-fourth or one thirty-second of Indian race ; there are thousands claiming one-eighth and less; all now upon the rolls, and even as to 'this slight modicum of blood of Indian they have never been required to furnish family trees or genealogical proof; and it is doubtful if many of them if put to the test could furnish it. In 1830 and long prior thereto many men with no blood of the Indian race were members of the tribe and were called " Indians." Many of the leaders in 1830 were whites, and in 1830, even while slavery existed, there were several full- blood free negroes who were members of the tribe and were called " Indians." What is a citizen hy " Mood ".*• — Mr. Howell, of the Interior Department, testi- fied, at page 241 of the hearings on H. R. 19279, H. R. 19552, and H. R. 22830, Sixty-first Congress, second session, as follows : Question. " What is your construction of ' a citizen by blood ' or an Indian by blood?" Answer by Mr. Howell : " That is a sort of a technical term that the commis- sion adopted to indicate the Indian who resided, or was supposed to reside, in the nation; he was an Indian by blood, having some sort of tribal status through enrollment or recognition by the council." By the same method one entered into full fellowship as a Mississippi Choctaw provided he received McMurray's approval. ******* The distribution already made to those in Oklahoma is a distribution to a civilized political community in which, at the close of the rolls in March, 1907, there was almost a predominance of white blood. On January 11, 1912, in the House of Representatives, Mr. Campbell, a Member from Kansas, who had spent months in the Choctaw region in service on the special committee, said : " I will say this for the benefit of the Members of the House, that many peo- ple whom we found there as Choctaw and Chickasaw Indians are just as white, Just as intelligent, just as well educated as the average citizen that you will find anywhere in this country." (Congressional Record, p. 922, 62d Cong., 2d Bess.) ENROLLMENT IN THE FIVE CIVILIZED TEIBES. 307 The following expressive language occurs at page 863, Report No. 5013, Fifty- ninth Congress, second session, Part I. It is the testimony of a Baptist mis- sionary who was familiar with conditions: " There are between 10,000 and 12,000 wkite people, or practically white people, here that have all the rights of Indians. Why? Because they are inter- married, or have a trace of Indian in them that entitles them to be called In- dians under the law." * * » ' ♦ * * « " They come before you and- claim, and say, ' This is our country ; this is our land,' and they talk about ' My people, my people.' But who are they? Who can tell who or what they are who tails thus loudly about their people and their rights? They are on the national rolls as inheritors of this domain." * * * ' * t * • " They are ramping up and down over the land, claiming it as their own, and clamoring to have it disposed of to their own particular advantage." Whites have been regarded as Indians so far as property rights are concerned. See act of May 2, 1890, sections 30. and 31. Note 8. — The final elimination. — Testim,ony of Mr. Howell, of the Interior De- partment, given at the hearings before the Committee on Indian Affairs of the House, Sixty-first Congress, second session, on H. R. 19279, H. R. 19552, and H. R. 22830 (p. 171) : " The Chairman. I will ask you whether or not your report includes any ex- cept those that are resident In the Five Civilized Tribes? I understand there are many applicants in Mississippi, and so on. " Mr. Howell. No. I eliminated and cut out a great many cases that were called to my attention, because I thought that the weight of the showing was against them — nonresidents. " The Chairman. You do not take into consideration the Mississippi Choctaw? " Mr. Howell. I do. I want to modify my statement in regard to a few families of Mississippi Choctaws. They were generally full-blood Indians, too, those Mississippi Choctaws. You see, the closing of enrollment on March 4, 1907, limited the jurisdiction of the Secretary to the enrollment of cases before him at that time. The Mississippi Choctaw was a person who claimed identifi- cation and enrollment under article 14 of the treaty of 1830, who lived in Missis- sippi or the neighboring States, and the conditions of his enrollment were these : First, he had to be identified as a Mississippi Choctaw. Second, he had six months under the agreement of 1902, which Mr. Murphy has referred to as the act of July 1, 1902, within which to remove and to establish residence in the Choctaw or the Chickasaw Nation. He might go either to the Choctaw Nation or the Chickasaw Nation. After removing he had one year within which to appear before the Dawes Commission and furnish proof of his removal. Then he was required to live there three years, and at the end of that period of three years he was to receive a patent, if he had maintained his residence in the mean- time. Now, then, the agreement always gave him six months for removal. These Mississippi Choctaws who were found to be entitled to identification by the Secretary were identified in the last week allowed, sometimes on March 4 or March 2, and of course they could not remove and would not remove. As a rule, a man would not remove until his case was decided, so that although they were found entitled to a right, the arbitrary termination of the work at a certain point deprived them of the opportunity which would have been theirs under the agreement of 1902, by virtue of which they were led to make application and to prove their rights." (Note. — Thus it will be seen that even those who had, to the satisfaction of the Secretary of the Interior, established their identity under the almost Im- possible conditions prescribed, were shut off because they must, under the act, remove after identification to enable them to get on the final rolls, and when they were finally identified the rolls were eo instanti declared closed without giving them an opportunity to perform the additional condition that they should remove to the Territory.) Note 9. — See reports of Secretary of the Interior for year 1899. Also see Opinions of the Attorney General. Note 10. — By Senate resolution No. 69 the Secretary of the Interior was called upon for information as to what rolls were used In the making of the final roll of March, 1907. This schedule of identified Mississippi Choctaws does not appear In his communication in response to that resolution. (S. Doc. No. 505, 60th Cong., 1st sess. Also see statement of Mr. Howell in note 8.) 308 Ei\KOLLMENT IN THE FIVE CIVILIZED TRIBES. See King Brandy and Lee Baptiste cases. " Identification " was held to be the identification by the commission — for the purpose of starting the six months' limitation of time within which settlement must be made ; and yet for the purpose of enrollment (by which their rights to either settlement or resi- dence might be determined, and without which they might be excluded as in- truders) no identification was sufllclent except the final identiflcation by the Secretary of the Interior. (See also p. 281, Report of Secretary of Interior for year 1906.) ' Note 11. — Report of Secretary of the Interior as to vital and only question considered years J902 to 1907, inclusive. — Attorney General gave it as his opinion June 19, 1903, that even the child of an " Identified " full-blood was not entitled to enrollment under paragraph 41 of the act of July 1, 1902. (Opinions of At- torney General, vol. 24, p. 689.) Note 12.— Act of April 26, 1906. — Affidavit filed by R. L. Owen April 9, 1907, in case No. 29821, in Court of Claims. (Suit brought under act of Apr. 26, 1906, 34 Stat. L., 137-140, and act of Mav 29, 1908, 35 Stat. K, 444-457.) (Statement of E. P. Hill. (Pp. 821-822 and 825 and 826, vol. 2, p. 1164, Re- port No. 2273, 61st Cong., 3d sess.) ******* How the "full Uoods " ivere enrolled. — lIcMurray testified last year before a special committee investigating the Indian contracts. In the course of his testi- mony the following occurs (testimony of McMurray before special committee, 61st Cong., Rept. No. 2273, vol. 2, p. 677) : " Question. The Mississippi Choctaws were not entitled to enrollment, but the court citizens were entitled to enrollment? "Answer. As a matter of law they were. I might give a little history of the Mississippi Choctaws. There had been a good deal of effort on the part of the Government to straighten out this Mississippi Choctaw matter, and the Mis- Bisslppl Choctaws could not make necessary proof to admit them under article 14 of the treaty of 1830. So much time had passed, and the persons who knew about those things had gone or passed away, that the Missisgippi Choctaws or full -bloods or any other blood were unable to make such proof as would admit them under the act of 1830. ( Note. — Meaning, no doubt, the act of 1902. ) Now, in considering this matter, the Choctaws and Chlckasaws, those that lived in this country, understood if those people were full-blood Choctaws and wanted to come to this country and take up their abode they ought to be permitted to do so, and said they would like to see them come. So we took up the matter and considered it and that was agreed as a matter of policy; that the Mississippi Choctaws of full blood should come here and take up homes if they would do so within the limited time of the provisions of the treaty of 1902, the fourteenth article would be waived and they would be permitted to come and take lands, and that was incorporated in the treaty of 1902. That was one of the matters contained in supplemental agreement with other matters of importance. " Question. So the citizenship court provision was only one of many things Involved? "Answer. One of many important things. And in putting in that clause ad- mitting Mississippi Choctaw people we provided specially no person would be admitted except full-"bloods, and only those admitted. Now, after that, some months, we found out, notwithstanding the provision was drawn, that the Attor- ney General for the Interior Department, I think Mr. Campbell, at that time had handed down a decision in which he claimed that the descendants of these full- bloods should also go on the roll, because it would be unfair to put a full-blood on the roll and not his cUildrcn. We took that up with the Attorney General and that was overruled, and those people who were being put on under the direction of the Attorney General were eliminated and not put on." Note. — It thus appears that those who were put on were put on as a matter of policy; that is, after legitimate claimants had exhausted every resource in attempting to make proof of their rights under the treaty, and were denied ad- mittance to the rolls because It was impossible for them to comply with the un- warranted conditions which McMurray had written into the law, all proof was dispensed with as to certain persons, and as to these persons, "as a matter of policy" (there being tacked on to the appropriation bill an appropriation of $20,000 March 3, 1003 [vol. 32, Stats., p. 97], to be immediately available for the purpose of aiding certain Mississippi Choctaws to remove to the Indian Terri- tory), these so-called but proof-dlspensed-with full-bloods were quickly herded together by learned ethnologists who were able at sight to recognize a full-blood ENBOLLMENT IN THE FIVE CIVILIZED TRIBES. 309 descendant of an 1830 Mississippi Otioctaw (although they were blind to those whb had attempted to mal^e proof) and, by speculators, they were shipped like cattle Into the Indian Territory and given their allotments. A number of people have intervened in the Court of Claims in the suit Instituted under section 9 of the act of April 26, 1906 (34 Stat. L., 137), claiming attorneys' fees for services to Mississippi Choctaws, but It is not probable that any of them will ever be able to recover for any legal services performed In securing the allotment of these favored persons ; for, however effective the work of getting them on was. It certainly was not accomplished by legal services — for there was no legal principle invoked and no legal evidence adduced to entitle them to enrollment. Some of th'5se taken to Oklahoma as full bloods under the appropriation In 1903 came from Bayou Lacomb and Bayou Castine. In Bulletin 48 of the Bu- reau of American Ethnology, Bushnell made an exhaustive examination of the Indians living there. He says : "At the present time it is not possible to determine whether the Indians liv- ing at Bayou Lacomb are descendants of the Acolapissa, or whether they repre- sent a small offshoot from the main Choctaw Tribe. According to the beliefs and statements of these Indians, their ancestors lived In that place for many generations. It is not at all improbable that the present Indians are Acola- pissa, rather than Choctaw ; then, again, they may represent both tribes. The Choctaw villages were probably never far distant from some of those belonging to the Acolapissa, and as all spoke the same language there must have been considerable intercourse between them." NoTJc. — However much these people may have been entitled to the bounty ol the United States, there was neither treaty. United States law, nor tribal cus- tom for their enrollment. There was no proof that they were descendants of those who elected to remain, under the treaty of 1830, or that they were in any way connected with the tribe of the Choctaws at or since 1830. Some motive for the assisted enroUnieut of these so-called full bloods and their settlement upon lands in 1903 may be gathered from the fact that after McMurray had excluded over 20,000 claimants by his practices, and after each one then on the rolls had been given 320 acres apiece, there still remained over 3,000,000 acres. Some of the remaining lands were very valuable, and it was desirable to get it allotted to some one who would lease it to favorites, and it was desirable to find tractable allottees. That valuable allotments were selected for these favored so-called " full bloods " on condition that they lease them to those selecting the allotments was a matter of general discussion at the time in Indian Territorv is shown by the testimony of Cobb. (P. 1118, Kept. No. 5013, 59th Cong., 2d sess.) There is no testimony in the public records showing that McJIurray had any individual contract at that time with any of these for a share of what they might receive. He was receiving a yearly salary at the time as attorney for the tribe, and he had a contract to be paid a commission on the value of the allotments on all he could exclude; he has now a tribal contract for sale of the coal lands, and he has individual contracts with 22,340 individuals who are now on the rolls (p. 1190, Rept. No. 2273, 61st Cong., 3d sess.) for 10 per cent of what they may receive, and if he permitted these so-called full bloods to be enrolled solely " as a matter of policy," without getting his share, it is the only thing he ever let get by him. Note 13. — Act of .Tuly 1, 1902, known as the "Atoka agreement." .(See state- ments in reports of McMurray, detailed in text; also see note 15.) Note 14. — As indicating what a steel trap the agreement drawn by McMurray and enacted as the act of July 1, 1902, was, note the opinion of the Attorney General of the United States (Opinions of Attorney General, vol. 25, p. 153), in which it is said : " When judgments in favor of applicants rendered by the Commission to the Five Civilized Tribes were affirmed upon appeal to the United States circuit court' (and the judgment of the citizenship court de- stroyed all of these United States circuit-court judgments) no steps have been taken to transfer these cases to the citizenship court. Held, That the an- nulment devolved upon the applicant the duty to transfer to citizenship court." "Annulment of the United States court judgment did not revive and put in force the decision of the commission." Note.— This decision was rendered May 9, 1904— the 90 days after annulr ment by the citizenship court, within which such transfer should have been made — was then long expired. jjOTE 15. McMurray was the author of act of July 1, 1902, and the nego- tiator of the so-called " treaty " agreement incorporated as act of July 1, 1902. 310 ENROLLMENT IN THE FIVE CIVILIZED TBIBES. See Statement of " Gov." Johnston, page 43, Senate Document No. 372, Sixtieth Congress, first session, in which credit is given Mansfield, McMurray & Cornish for securing the legislation contained, in act of July 1, 1902. Also pages 14 and 19 of same document, in which the members of McMurray's firm mention their negotiation of " treaties " with the United States. Page 699 (H. Kept. No. 2273, 61st Cong., 3d sess.), McMurray testifying in Oklahoma before the committee, says: " I don't believe that any matter was done for the Choctaw and Chickasaw people dulling these years we had charge of the work that we didn't do from Jiere to the Supreme Court of the United States." Note. — Even to securing two companies of soldiers to settle a disputed election of tribal officers. (P. 610, same testimony.) How comprehensive the labors of McJIurray's firm were is further shown by his testimony at page 670 (same document. Vol. II) : " Whatever came up on the Chickasaw or Choctaw Nations to be done, touch- ing the property of the Chickasaws and Choctaws in the courts or elsewhere, we did." * * * On the 12th of November, 1906, Melvin L. Cornish appeared before a special committee of Congress to testify. Cornish was Mcilurray's partner in the firm of Mansfield, McMurray & Cornish. In view of later testimony, his naive testimony on November 12, 1906, is interesting. It is (p. 23, Rept. No. 5018, Pt. I, 59th Cong., 2d sess) : " The Government of the United States realized that the Indians were unable to manage their own affairs, for two reasons: First, because they had no expe- rience in such management ; and, secondly, because many of them were cor- rupt. * * * The terrible things that have been done to the Indians have been done because of their own corruption and incompetence. It was then thought that the power should be taken from the hands of the Dawes Commis- sion, and so the Atoka act was passed, and on that the Government action has been based ever since." This is the limit of effrontery. The Dawes Commission, which has been so much abused, and which in the common mind is responsible for all the schemes of men like McMurray, was a commission of the United States, composed, pre- sumably, of high-minded, honest men. This witness treats the Dawes Commis- sion, in this statement, as composed of corrupt and incomi)etent Indians, and, by inference, the happy change occurred when the Atoka act was passed — that Infamous act by which the entire affair was put, practically, into the hands of Cornish's firm, 1. e., Mansfield, McMurray & Cornish. The following is taken from bottom of page 697 and top of page 698, Evidence of McMurray, House Report 2273, Sixty-first Congress, third session, volume 2 : "As a matter of fact, I am willing to take the responsibility of almost all the Choctaw and Chickasaw people's doings during these years, on the firm of Mansfield, McMurray & Cornish. There was hardly a bill affecting the general affairs that was passed that we didn't O. K., and there never was a bill sug- gested by us that was not passed, so whatever there is in this work, good or bad, it rests on us." On page 741 he says : " They refused all that had been put on the rolls contrary to our view of the law." Note 16.^ — Mr. Stephens, of Texas, now chairman of the House Committee on Indian Affairs, has repeatedly called the attention of Congress in former sessions to the glaring wrongs and injustices inflicted upon these people. See : H. R. 122 (60th Cong., 1st sess.), December 2, 1907. This bill sought a review by the Supreme Court of the United States of the judgments of the •' citizenship court." It is doubtful, in the absence of other legislation which would correct the provisions of the "Atoka act " of July 1, 1902, if this bill, i'f passed, would have afforded needed relief. Resolution No. Ill (60th Cong., 1st sess.), January 6, 1908, which sought Information relative to the dismissal of indictments against " Governor " Johnston, P. S. Mosely, George Mansfield, J. F. McMurray, and Melvin Cornish for coiiKpiracy to defraud. H. JC. 15649 (60th Cong., 1st sess.), January 29, 1908, which sought to grant jurisdiction to United States courts to determine the rights of claimants who had been " unlawfully excluded " from the final rolls of the Choctaw-Chickasaw Tribe. As McMurray had before then, to wit, on July 1, 1902, secured the enactment into law of conditions as a qualificttion for enrollment which were Impossible to be performed, this proposed legislation would also have been ineffective, for the courts would have been compelled to decide that the ENEOLLMEKT IN THE FIVE CIVILIZED TEIBES. 311 claimants were lawfully excluded. However wrong and unjust the act of July 1, 1902, was and is (and its injustice can not be doubted by anyone, now that the facts are known), and however Congress and the Interior Department were imposed upon by McMurray (and this, too, can not now be doubted), yet it la still the law, and Congress must right the wrong, and declare anew the pre- existing rights, or the courts would be helpless, for the courts have declared that there is no (Constitutional limitation upon the power of Congress in the disposition of this property. House resolution No. 337 (60th Cong., 1st sess.), April 15, lOOS, calling upon the Secretary of the Interior to transmit to Congress certain reports relating to the omission from the final rolls of persons meritoriously entitled to enroll- ment and the list of persons now fraudulently upon the final rolls, which reports had been theretofore withheld from Congress. House resolution No. 389 (60th Cong., 1st sess.), April 20, 1908, authorizing the Committee on Indian Affairs to investigate the charge of corrupt denial of justice by the " citizenship court." H. R. 25401 (60th Cong., 2d sess.), January 6, 1909. This bill sought to reopen the rolls of the Choctaw-Chickasaw Tribe to the applications of claim- ants as native citizens and of Mississippi Choctaws. As this bill did not remove the conditions inserted by McMurray in the act of July 1, 1902, that the Mississippi Choctaw claimant must show that his ancestor had received a patent to land under article 14 of the treaty of 1830, it, also, if passed, would have effected no relief. H. R. 26205 (60th Cong., 2d sess.), January 14, 1909. This bill sought to authorize the Secretary of the Interior to enroll all claimants who were related by blood within the third degree to those now upon the rolls. Thii bill, if enacted, would have given relief to many deserving claimants,- but it was illogical, for it would have afforded no relief where whole families were excluded, as they were, and would not have helped the Mississippi Choctaw unless some member of his family had heretofore earned and received Mc- Murray's favor. H. R. 67 (61st Cong., 1st sess.), March 15, 1909. This bill was to the same effect as the foregoing bill ; that is, H. R. 26205 of the preceding Congress. H. R. 27122 (61st Cong., 2d sess.) , June 22, 1910. This bill sought to authoriza suit to be brought in the Court of Claims by claimants to enrollment in the Choctaw-Chickasaw Tribe and sought to remove the requirement in the act of June 28, 1898, that Mississippi Choctaw claimants to be eligible had estab- lished a residence in the Choctaw country prior to June 28, 1898, but this bill would also have been inadequate to grant relief, had it been passed, for it did not provide for the removal of the other limitations imposed upon the assertion of rights by Mississippi Choctaws by McMurray in the act of July 1, 1902, as fully shown in the text. H. R. 21479 (61st Cong., 2d sess.), February 21, 1910. This bill sought to permit the rehearing of the applications of Mississippi Choctaws who had removed to Oklahoma prior to February 1, 1907, provided their ancestors had received a patent to land under the fourteenth article of the treaty of 1830 or scrip in lieu thereof. Had this bill been passed it would have afforded relief to some, but there are thousands whose ancestors were entitled to lands under article 14 of the treaty of 1830 who received neither patent to land nor scrip in lieu thereof. (See record in case of Choctaw Nation v. United States.) These who are just as deserving — yes, who are more deserving, for they have heretofore received nothing (and for whose failure to receive anything the Choctaw Nation west has already received indemnity from the United States) — would have gotten no relief had this bill been enacted. Against great odds was the active and able representative from Texas struggling. The whole subject had been made complex and intricate by McMurray's devices. Honest and sin- cere men in the Interior Department attempted from time to time to favor the admission of those that were undoubtedly by all moral and natural law entitled to enrollment, but all of these efforts and the continuous effort of Mr Stephens to secure redress were unavailing, because Congress had been hoodwinked into enacting as an exercise of its supreme power what, in fact, was the act of McMurray, and while Congress believed it was declaring right* it in fact by the skillful manipulation of McMurray in the juggling of language was destroying rights. No man's efforts to right these wrongs could have been effective; the hearings of testimony before committees of Congres* might have dragged on until the crack of doom, and confusion would have been worse confounded had not Jake Hamon, In the closing hours of the Sixty-firit 312 ENROLLMENT IN THE FIVE CIVILIZED TRIBES. Congress, sought, as alleged, to corruptly Influence Senator Gore to secure the approval of McMurray's " tribal " contract for tlie sale of tie coal lands. This started a full investigation into McMurray's relations with this tribe ; and in order to justify his fees he, the master schemer of the age, lays bare, in boast and bravado, the whole history of his undisputed reign, which shows the exer- cise of power compared with which that of Warren Hastings was infantile. No one would have believed that all these exclusions of rightful claimants had been accomplished by one ingenious and daring individual had not Mc- Murray and Johnston boasted of it. With this information at hand; with the truth, so long buried under the moss of artificial creations — the " leather and prunella " of McMurray — now revealed by the conspirators themselves, the remedy should be plain to Congress. Mr. Cantwell. Gentlemen, in the consideration of this matter, I take it that it is undoubted that Congress assumes to have supreme power over this tribe and over the enrollments. It has exercised that power constantly, and the courts have upheld that pewer. In the exercise of that power, however, the Supreme Court of the United States stated in the case of the Choctaw Nation v. The United States (vol. 119, S. C. Repts., p. 1) : The recognized relation between the United States and the Choctaw Nation is that between a superior and an inferior, whereby the latter is placed under the care and control of the former, and which, while it authorizes the adoption on the part of the United States of such policy as their own public interests may dictate, recognizes, on the other hand, such an interpretation of their acts and promises as justice and reason demand in all cases where power is exerted by the strong over those to whom they owe care and protection. The parties are not on an equal footing, and inequality is to be made good by the superior justice which looks only to the substance of the right without regard to tech- nical rules framed under a system of municipal jurisprudence, formulating the rights and obligations of private persons equally subject to the same laws. The Supreme Court of the United States has declared that that is the principle upon which the United States should deal with this nation or as a tribe. Now, when it comes to deal with persons who are members of the tribe, when it comes to consider the rights of those who claim membership in the tribe, is it not apparent that the same measure of superior justice, the same measure of justice which the superior should exert and exercise in the treatment of the inferior as a tribe, should obtain in the treatment of the individuals? This is pertinent to the discussion of what rights were intended to be reserved by clause 14 of the treaty of 1830. It must be remembered in the beginning that section 14 of the treaty of 1830 was not a sec- tion which was giving rights to anybodj'. It was a section intended to prevent any question about the loss of any rights. Every man who came under that section 14 of the treaty of 1830 had all of the rights of a Choctaw Indian and all of the rights of membership in the Choctaw Tribe. The clause in section 14 of the treaty of 1830 was a clause inserted only to prevent any question as to whether by becom- ing a citizen of Mississippi he should lose any of his full rights as a Choctaw citizen. Now, it must be remembered, gentlemen, that the sovereignty — that is, the government of the Choctaw Nation — did not at once, on the instant, in 1830, move out West. It must be remembered that those people, or the majority of them, remained in Mississippi for 14 or 15 vears afterwards. In fact, as late as 1855, a partial search, made after all the immigration, still disclosed that there were o^^-er 2,000 of them in Mississippi. It was discovered that over 2,000 of them were still in Mississippi in 1855, when the second treaty came to be adopted. Gentlemen, they remained there in Mis- ENROLLMENT IN THE FIVE CIVILIZED TRIBES. 313 sissippi, and they continued to exercise their tribal organization in Mississippi until the immigration had been completed of the greater iiumber of them. It is a mistdke to say that the United States Government had no idea in the beginning of individualizing or civilizing those people remaining in Mississippi. Whatever the Government's agents may have attempted subsequently to do, it is undoubtedly true that it was the original intentipn to form a colony in Mississippi, the members of which occupying exactly the same position that the members of the Choctaw and Chickasaw Tribes are now beginning to occupy in Oklahoma. Mr. Carter. Mr. Cantwell, do you mean to say that it was the in- tention to individualize the 'Indians in Mississippi ? Mr. Cantwell. Yes, sir. Mr. Carter. You do not mean to st^te that it was the intention to do that in Oklahoma or Indian Territory ? Mr. Cantwell. Mo, sir; it was the intention to individualize those in Mississippi. I refer to the colony in Mississippi. Mr. Post. What was to be the effect of that process? Mr. Cantwell. The effect of that process was to be that they were to lose none of their rights — ^none of their tribal rights whatever. Mr. Post. Were they to become citizens of the State of Mississippi ? Mr. Cantwell. Yes, sir ; they were to become citizens of the State of Mississippi. I will come to that in just a moment, Mr. Post. Mr. Cariter. Just a moment there, Mr. Cantwell ; let me understand this thoroughly. Is it your statement that such Indians as moved to Indian Territory were not to be paid annuities and were to hold land in common ? Mr. Cantwell. Those who went to the Indian Territory ■ Mr. Carter (interposing). At that time there were no annuities so far as the Indian Territory was concerned. Mr. Cantwell. The original declaration in the treaty of 1820 and of subsequent treaties was that those who were restless were to go out West; that those who lived by hunting and would not v^ork should go out West. Later, of course, the civilized ones were driven out because they were robbed of their individual allotments ; but m 1830 there was no question but what it was the intention — ^that is, the first intention — to individualize the Indians. The first attempt to individualize the Indians was under that treaty of 1830, and there is no question whatever but that it was not -intended by anybody at that time that they or their descendants should lose their right to the tribal lands when they should come to be distributed in the future, or when there should be any per capita distribution. Mr. Post. But there was a condition attached to that ? Mr. Cantwell. I will come to that in a minute. I want to insert at this point a part of the statement made by the Choctaw Delegate to Congress on March 21, 1870, which statement recites the fact that in 1844 there were still 7,000 Choctaws in the Choctaw country, com- prising nearly 1,600 families. I would like to have inserted the marked portions of the statement appearing on pages 11 and 12 of this document. (The matter referred to is as follows:) The report of tlie Committee of Indian Affairs of the Senate of the United States niade on the 15th of February, 1859, upon the memorial of the delegates of the' Choctaw Nation, admits and proves the gross, signal, and shameful in- 314 ENROLLMENT IN THE FIVE CIVILIZED TEIBES. justice with which the Choctaw people were treated by the legislation of Con- gress, and the action of executive officers of the Government after the treaty of 1830; and that report is prayed to be taken as part of this remonstrance, appeal, and protest. The fourteenth article of that treaty, recognizing the right of the Choctaws to their lands east of the River Mississippi, to which, by the treaty of 1820, as modified by that of 1825, the Choctaw Nation. has, as the committee ex- pressly decided, a title in fee, affirmed the right of every Choctaw head of a family in the nation to remain and become a citizen of the United States by simply signifying their intention to do so to the agent within six months. When that intention was signified each such head of a family became entitled to a reservation of 640 acres of land for himself, 320 for each unmarried child over 10 years of age, and 160 acres for each under 10 living with him or her. Everyone had the right to remain. But the emigrating agents discouraged their intention to remain and un- scrupulously resorted to coercive and violent measures to compel them to emigrate. Five or six thousand desired to remain and form a sort of colony, but the plan was abandoned in consequence of the threats of the Government officers and emigrating agents, who caused nearly every family embraced in the scheme to emigrate through fear of personal violence, and of all of these persons not more than 15 or 20 remained long enough to secure grants in fee simple. In 1844, 7,000 Choctaws were still in the ceded country, comprising nearly 1,600 families. Of these only 69 were reported by the Government agents as entitled to land. Ultimately 74 families more succeeded in securing reserva- tions. The unfortunate Choctaws were robbed of their lands, in part from the violent means used to coerce emigration, but chiefly from the refusal of the agent to permit them to signify their intention to remain. They were to do this within six months, but the treaty was ratified on the 24th of February, 1830, and no instructions were sent to the agent to receive their notices of Intention to remain until May. Then he refused to receive nearly all of them — 200 at one time. Consequently their rigflts were not recognized by the Gov- ernment and their lands were sold by it. The agent played into the white speculators' hands. Acts creating commissions to examine into these claims were passed in 1837, 1842, and subsequently, under which the claims of over 1,500 families were ad.ludicated. Of these only 143 obtained their own lands; 1,150 were ascertained to be entitled, having in all respects and in due time complied with the requirements of the treaty, but in the meantime their im- provements had been sold and Congress gave them scrip, by the act of 1842, but provided that only one-half should be delivered to the Indian until after he should have removed to the Choctaw country west of the Mississippi. But the Secretary of War made the emigration of the claimants a condition precedent to the delivery of any part of the scrip. At first he only required evidence that the Indian was about to set out. Afterwards he prohibited the delivery until after the arrival of the claimant in the Choctaw country west. Mr. HuELEY. I would like to have the citation so I may find that. Mr. Cantwell. That matter appears on pages 11 and 12 of this document, which is entitled "Remonstrance, appeal, and solemn protest of the Choctaw Nation, addressed to the Congress of the United States." , Mr. HuELEY. Who was the author of it? Mr. Cantwell. Peter P. Pitchlynn, the Choctaw delegate. There has been soine discussion among the attorneys and the members of this committee of the question whether one could retain his tribal rights to individual distribution to himself or herself and descendants, or to distributions in severalty, if the claimant lives permanently away from the tribe. There are several precedents for this. The Choctaw treaty of 1830 was the first attempt to indi- vidualize the Indian Avhile permitting him and his descendants to retain the right to distribution in severalty of the tribal lands when- ever that distribution should come to take place, but there are num- berless instances of it since. Mr. Post. What does that treaty provide in that respect? ENBOLLMENT IN THE FIVE CIVILIZED TBIBBS. 315 Mr. Cantwell. The language of -the treaty is that those who take advantage of this article' should not lose the privileges of Choctaw citizens. First, I call your attention to the fact that while there has been no real tribal relation among the Choctaws for a generation, and while the members now on the roll ha-se for some years been citizens of Oklahoma and each has received his allotment in severalty, yet those in Oklahoma find no difficulty about continuing to claim the benefit of tribal membership. They are now in exactly the same situation that their brothers in Mississippi were, in 1830, except that those in Oklahoma have gotten much and their brothers in Mississippi have gotten nothing. Next, as showing the policy of the United States, I desire to read the act of Congress of March 3, 1875, from the operations of which, unlike later statutes, the Choctaws and other Five Civilized Tribes w^re not exempted: Sec. 15. (See Eighteenth Statutes at Large, p. 420.) That any Indian born in the United States who is the head of a family, or who has arrived at the age of 21 years, and who has abandoned or may fiereafter abandon his tribal relations, shall on making satisfactory proof of such abandonment, under rules to be prescribed by the Secretary of the Interior, be entitled to the benefits of the act entitled " An act to secure homesteads to actual settlers on the public domain," approved May 20, 1862, and the acts amendatory thereof, except, that the provisions of the eighth section of the said act shall not be held to apply to entries made under this act : Provided, however, That the title to lands acquired by any Indian by virtue hereof shall not be subject to alienation or incumbrance, either by voluntary conveyance or the judgment, decree, or order of any court, and shall be and remain inalienable for a period of five years from the date of the patent issued therefor: Provided, That any such Indian shall be entitled to his distributive share of all annu- ities, tribal funds, lands, or other property the same as though he had main- tained his tribal relations; and any transfer, alienation, or incumbrance of any interest he may hold or claim by reason of his former tribal relations shall be void. Mr, Post. That was an act of Congress which the Choctaw Nation was not to obey at all ? Mr. Cantwell. That was an act of Congress which the Choctaw Nation was not expressly exempted from, as it was from subsequent acts. This statute places the Indian who comes within its provisions in the same condition as the Mississippi Choctaw was placed in by the provision of the 'fourteenth article of the treaty of 1830. And the act of February 8, 1887 (ch. 119, 24 U. S. Stat. L., 388, sixth sec), provides : And every Indian born within the territorial limits of the United States who has voluntarily taken up his residence separate and apart from any tribe of Indians therein and has adopted the habits of civilized life, is hereby de- clared to be a citizen of the United States, and is entitled to all the rights, privileges, and immunities of such citizen, whether said Indian has been or not, by birth, or otherwise, a member of any tribe of Indians within the ter- ritorial limits of the United States, without in any manner affecting the right of any such Indian to tribal or other property. Section 8 provides that the provisions of this act shall not extend to the territory occupied by the civilized tribes in Indian Territory, but this statute is illustrative of the policy of the United States being continued which was begun by the fourteenth article of the treaty of 1830. 316 ENROLLMENT IN THE FIVE CIVILIZED TRIBES. See also the act of August 9, 1888 (ch. 818, 25 Stat., 392) , preserving the rights to tribal property of Indian women who marry outside the tribe. It was said by Judge Van Devanter in the Oakes case (172 Fed. Eep., 305), commenting upon these statutes: For many years the treaties and legislation relating to the Indians proceeded largely upon the theory that the welfare of both the Indians and the whites required that they be kept in tribal communities separated from the latter, and while that policy prevailed, effect was given to the original rule re- specting the right to share in the tribal property; but Congress later adopted the policy of encouraging individual Indians to abandon their tribal relations and to adopt the customs, habits, and manners of civilized life and as an incident to this change in policy, statutes were enacted declaring that the right to share in tribal property should not be impaired or affected by such a severance of tribal relations, whether occurring theretofore or thereafter. And in this case he decided that the children of an Indian girl who had married a white man, in 1829, and whose children had never been in the tribe, were entitled to their allotment in the Mississippi Chip- pewa Reservation. The treaty of 1830 was, I repeat, the first example of this effort to individualize the Indian, and to extend these rights to the descendants of the beneficiaries of the fourteenth article is in accordance with the intent of all of the parties to the treaty ; in accordance with the con- stant understanding of the tribe, while it was a tribe ; in accordance with the settled, and now generally adopted policy of the United States and in conformity to the dictates of simple justice. A great deal of discussion has been had upon the simple proposi- tion of removal under that fourteenth article. That clause has been much befuddled and pages and pages are devoted to confusing dis- cussion of it. Now, in the first place the Choctaw annuity at that time to which this clause referred was only $9,600. That is the first proposition Mr. Post. I thought it was $20,000 ? Mr. Cantwell. It was to be after the treaty of 1830. It had never exceeded for 20 years after that, $20,000 altogether. It was $9,600 at that time — that is, the permanent annuity. Now, the idea that a distributive share of this should be sufficient consideration to move anybody or anything is ridiculous. The Indian has been said to be an " easy mark " about many things, but he is not quite as easy as that. The language of that provision is, "but if he shall ever remove, he shall receive no part of the Choctaw annuity." Now, the words are, " if he shall ever remove, he shall receive no part of the Choctaw annuity," and that language " if he shall ever remove," has been con- strued by some to mean if he shall ever remove to Oklahoma. Now,, all of those who went to Oklahoma got the annuity and none of those who remained got it only for the reason that there was no roll made of those who remained because of the wrongdoing of those agents subsequently. If you are to construe language according to its ordi- nary meaning, then if he were to lose it by reason of removal, then he was to get it by reason of remaining. If that is not the ordinary construction of the English language, then there can be no con- struction of anything. There can be no intelligible construction of that clause in that sentence based upon any condition which supposes that it was dependent upon whether he went to Oklahoma. KNROLLMENX IN THE FIVE CIVILIZED TRIBES. 317 Mr. Post. Was not that provision in the treaty a penalty for not removing ? Mr. Cantwell. It has been stated that it was a penalty for not removing to Oklahoma, but the treaty does not say that. The treaty says that if he shall ever remove he shall not receive it. On the con- trary, as it reads, it was a penalty for his going to Oklahoma if removal west was the removal contemplated. -You can not read it any other way, Mr. Post. It is a mistake to say that there was a pena.lty for not going to Oklahoma intended by that clause. As a matter of fact, what was contemplated at that time was this — that those people were to remain there and become individualized and stay on those individual reservations, and if they moved from the individual reservation where the agent could not find them they lost the annuity. Mr. Post. t)on't you think a fair interpretation of the treaty is that the annuity payable by the United States would be paid to the government of the Choctaw Nation? Mr. Cantwell. No, sir. Mr. Post. The Government being removed Mr. Cantwell (interposing). No, sir; it was never paid by them; it was paid by agents of the United States. Mr. Post. It was distributed by the Choctaw Nation as a tribal government, was it not ? Mr. Cantwell. No, sir. The annuity was paid by the Indian agent. Mr. Post. You do not get my idea. Of course it was paid by an agent of the United States, because that is the way the United States does its business — that is, through agents — ^but it was paid to the Choctaw Nation as a tribe. That nation being in Oklahoma, the annuity was paid to them. Mr. Cantwell. Mr. Post, it was actually paid, as a matter of fact, to the individuals directly by the Indian agent of the United States. Mr. Carter. How late was that done ? Mr. Cantwell. It was done that way up to that time at any rate. I know it was done that way up to 1855. I know it was done up to 1855, which was 25 years after that time. Even after the constitu- tion of 1855 was adopted and they began to adopt a more civilized form of government, with the adoption of a constitution, the crea- tion of a legislature, and that sort of thing, some of the payments were made by the agents to the Indians, just like payments are made to the Indians on the reservations to-day by the Indian agents of the United States. Now, on that question of removal, it seems to me that there is only one sensible construction to be given that clause as to the an- nuities. Those annuities were paid by United States agents to the individuals. Now, if they ever removed away from that particular reservation to which they were assigned, then the United States •Indian agent would not attempt to hunt them up. That is all there was to that clause. Mr. Post. Up to 1855 was the annuity paid to the Choctaws m Mississippi as well as to those in Oklahoma ? Mr. Cantwell. From 1830 to 1847 whatever annuities were paid, or the biggest part of them, must have been paid in Mississippi, because these people stayed there. But when the lands in Mississippi 318 ENHOLLMBNT IN THE FIVE CIVILIZED TBIBES. were thrown open to settlers and the Indians were driven away~ from those reservations, and when the Government agents com- menced to force them out in violation of this treaty of 1830, then they commenced to scatter, or some of them did, and to go west. Most of them went out West. But 14 years after 1830, according to the statement of Mr. Pitchlynn, the Choctaw delegate, there were at least 7,000 of them living back there in Mississippi. Now, in 1855 D. H. Cooper was sent to Mississippi as an Indian agent to distribute certain scrip to the remnants of the tribe living down there. He made a report to the Indian agent — or to the War Department, which had charge of Indian affairs — ^that there were 2,000 of them. He reported that he was satisfied that there were at least 2,000 of them scattered all over Mississippi, Louisiana, and Alabama. The department said that his investigation was not satis- factory. I quote from his report as follows : Since my last report I have visited the States of Mississippi, Alabama, and Louisiana for the purpose of ascertaining the number of Choctaws yet remain- ing east and to pay the balance of awards due per act of July, 1852. From visiting most of the localities where they reside and from the best information I could obtain, there are over 2,000 Choctaws disunited from the nation west. They are scattered over a large extent of country in Mississippi, Alabama, and Louisiana, living mostly after their primitive customs and leading a vagrant life — degraded and ignorant. Nominally citizens of Mississipp, they are too ignorant to avail themselves of their privileges. Education and religion are things unknown to them ; their aspirations seem to be limited to the mere supply of animal wants. There is no hope for them unless Mississippi, Ala- bama, and Louisiana will concur in such enactments as will make good citizens and artisans of their children or drive them to seek a home with their brethren west. These people had been driven away from their homes. Mr. Carter. How were they driven away? Mr. Cantwell. Well, their reservations of lands were not reported by the Indian agent. The reservations of these people were not reported, and consequently their names were not on the land lists nor on the land plats. The lands were all thrown open to settlement, and white citizens of the United States preempted those lands, and when they made entry of the lands and found Indians in possession, without knowing or caring anything about the treaty rights of the Indians, who did not have anything to show for them, they would drive them off the land. Mr. Carter. They did that by force? Mr. Cantwell. By force. They made their entries and took the lands away from them. Coming down to the claim of the Choctaw Nation against the United States, I want to say that I have constantly emphasized the fact that the Choctaw Nation west made the wrongs done these indi- viduals in Mississippi the principal basis for their claim against the United States; and I contend that in justice and reason they are estopped from denying that the people, for the wrongs done whom they recovered those damages against the United States, and their de- scendants, are members of the tribe. Why ? Because if these people did not remain members of the tribe the Choctaw Nation would have had no right to make any claim against the United States for the wrongs done the individual members who had been deprived of their reservations. That matter was submitted by an agreement under the treaty of 1855 to the Senate of the United States for an award. The, ENBOLLMENT IN THE FIVE CIVILIZED TRIBES. 319 Senate of the United States awarded a large amount under that ref- erence, but, the war breaking out, it was never paid. Subsequently the Choctaw Nation was given the right to sue the United States in the Court of Claims, and the Court of Claims rendered a judgment in that suit for something less than $1,000,000 at the beginning, but when it went up to the Supreme Court of the United States on ap- peal, the Supreme Court of the United States held that by reason of that reference to the Court of Claims, with the right of appeal to the Supreme Court of the United States, the judiciary was empowered to make a proper award, and they decided that the United States was in honor bound to pay that award which had originally been made by the United States Senate and which amounted to $2,900,000 net. Mr. Post. That was a case brought by the Choctaw Nation against the United States for the recovery of land that the Choctaw Nation held in the State of Mississippi, in which case the claim was made that there was no consideration passing to the Choctaw Nation when they conveyed that land to the United States. Was not that judgment something like $8,000,000 originally and then reduced to • something like $3,000,000 by charges against the Choctaw Nation ? Mr. Cantwell. Mr. Post, the claim of the Choctaw Nation, when it came to suit, included fevery possible kind of claim. The United States had title to those lands west of the Mississippi prior to the treaty of 1820. The treaty of 1820, however, ceded only a small part of the Choctaw lands east Mr. Post (interposing). About 4,000,000 acres? Mi". Cantwell. The treaty of 1830 ceded all of the land that th« Choctaw Nation had east of the Mississippi River. Mr. Carter. What was the purpose in ceding only a part of the lands by the treaty of 1820 ? What was the purpose of reserving a part of them or for not ceding all of them ? Mr. Cantwell. They intended to remain down there, and they wanted to remain down there. Mr. Carter. All of them ? Mr. Cantwell. Those of them who would not work and lived by hunting wanted to go out west. Mr. Carter. And the others wanted to remain in Mississippi ? Mr. Cantwell. Yes, sir. Mr. Carter. On a reservation of some 4,000,000 or 5,000,000 acres, or whatever it was, that was set aside for those who intended to stay ? Mr. Cantvstell. Yes, sir. Mr. Carter. Now, this treaty of 1830 provided that those people who wanted to stay might allot that land and take it in severalty ? Mr. Cantwell. Practically. Mr. Carter. And remain in Mississippi, if they desired? Mr. Cantwell. Yes, sir. Mr. Carter. I am familiar with the reason why that was not done, but I think it might be well to make it a matter of record. I think it might be well for you to go briefly into the reasons why those iHdians were not allotted down there, if you will, because that has ■ not been put in the record at all. Mr. Cantwell. It is stated quite fully in this memorial of Mr. Pitchlynn; it is referred to quite fully in that brief. The reason why it was not done, as I said before, these individuals attempted to make their reservations. There is proof that at least 4,000 of them 320 ENEOLLMENT IN THE FIVE CIVILIZED TRIBES. attempted to make reservations, and there is proof that at least 4,000 of them are entitled to reservations. Mr. Cabtee. What is that proof? Mr. Cantwell. Proof of the individual rights of each one of thes^ persons is contained in the five volumes of the record in the case of the Choctaw Nation against the United States, in which the testi- mony taken by all of the commissions sent down there to investigate this matter is contained. They show the particular location of each one of them. They show the members of their families. They show the witnesses who were near there at the time. That is all shown in the suit of the Choctaw Nation against the United States. Mind you, in that suit of the Choctaw Nation against the United States there was a recovery by the Choctaw Nation of these individual rights to lands in Mississippi, which those people in Mississippi never got. The Choctaw Nation recovered as a final settlement of all controversies. The Senate had said practically : " Well, your your people did not get these lands as they should have gotten them, and we will adjust this matter in this way — we will allow you the net ' proceeds of the sales of all the lands in Mississippi." There is an abundance of testimony in the record of the Choctaw Nation against the United States and in the record of all of these commissioners, subsequently sent down to investigate, that those people never were permitted any opportunity to signify their inten- tion to assert their rights to those reservations. They were an igno- rant people, and they simply remained where their little cabins were until the homesteader or the white man came along and drove them off. They were remote from Washington. A great many of the people of Mississippi were anxious to get rid of the Indians gener- ally. Some of them were really civilized. Some of those people were as highly civilized as any of us are to-day. They had mixed with the whites for several generations, and there were some infusions of fine stock — the refugees from the Irish revolution of 1798, the refu- fee followers of the Stuarts, the Scotch Covenanters, and the French [uguenots. I should not.be at all surprised to find that the chair- man of this subcommittee is a descendant of French Huguenot stock if we should trace it back. They had gone into those tribes when they came to this country as refugees from abroad- It is a mistake to say that all those people who remained in Mississippi were ignorant or superstitious and had nothing except their primitive wants. Lots of them were men of intelligence. Of course, what the poverty of subsequent generations may have done to some of them I do not know. The headquarters of this tribe really remained in Mississippi for 14, 15, or 16 years after the treaty of 1830. To say that those who remained in Mississippi were to be penalized by the treaty of 1830 is nonsense. Why, they were the important people of the tribe. They needed no declaration of their rights, because they were the im- portant people of the tribe, and there were no declarations as to the rights of those people up to 1855; none were necessary. They all knew each other. Subsequent to that time everybody who went out West with his children and with his descendants was identified by the people who were out there. I am talking now about the time when the tribal relations existed. They were not " admitted " to the tribe ; they were " recognized " members of the tribe at onc6. No formal ENBOLLMENT IN THE FIVE CIVILIZED TRIBES. 321 act of adoption was necessary. That is evident even as late as 1889. In one of the acts introduced bjr the tribal attorneys in one of the last hearings there are two cases in particular in which the language is not of " admission," but of " recognition " of the Mississippians. One hundred and fourteen people in one act of the council were " recognized " as citizens. In other resolutions they are declared citi- zens. There are a few other acts of the council in which they are referred to as "late arrivals admitted to citizenship." It is imma- terial what language was used. The fact that they were recognized in some of these resolutions and declared citizens in some of these resolutions was a mere process of identification. What were the rights which were intended to be reserved by article 14 ? Exactly the same rights that any man in the tribe had. It is true that the right to graze your flock on common land, the right to plant on the com- mon land, requires as a physical proposition that you go there to do it. That is true; but no such act as that is required when it comes to per capita distribution. The only thing necessary is to identify the person entitled to per capita distribution. Gentlemen, if the agents of the United States had done their duty and had kept the rolls of those people down there as they should have done, those people in Mississippi and all of their descendants would be_ in exactly the same situation as are the Indians of other tribes who, under the act of 1875, have become citizens of the United States and still retain their tribal rights. When it comes to the treaty of 1866, the treaty of 1866 again con- templated individualization. The people out West had advanced in civilization, they had established a legislature and a government, and they had been in the war and had been broadened by that. The change in environment had broadened them. The treaty of 1866 contemplated an almost immediate allotment of the western lands. There was, in the treaty of 1866, a guaranty by the United States that each member of the tribes should receive 160 acres of land in severalty. The rights of the absent Choctaws were still recognized. It was not those -who were living in 1830 that are referred to in the treaty of 1866, but it was the absent Choctaws and their descendants who could show or might show their identity, and they were given the right to their allotments for a certain time after that allot- ment should be made by the treaty of 1866. Mark, gentlemen, that is the last real treaty that was ever made with this tribe, and this right has never been given them. The act of 1902 is sometimes re- ferred to as a treaty, but it has been decided by the Supreme Court of the United States to be but an act of Congress, and, gentlemen, it was not really an act of Congress, but it was an act of Mr. McMurray. Even in that act of 1902 there was no denial of the right of those people, provided they should be identified. There was an admission of the right. It was a mere question of the method of identification to show that they were descendants of those people who were entitled^ under the fourteenth article of the treaty of 1830, to reservations in -Mississippi, whenever there was to be an individualization,_if they should identify themselves, but there was no method of identification provided until they should go to Oklahoma. There was never any denial of the right of identification when they should go, and it never was cut off during the time that the tribal organization existed. 64969—15 ^21 322 ENEOLLMENT IN THE FIVE CIVILIZED TBIBES. r Gentlemen, they have introduced an act of the general council, dated in 1895, by which it is undertaken to limit the application of citizenship for 30 days after that time. They introduced that in the last hearing as evidence that there was some sort of an attempt to foreclose the right of application to citizenship. Gentlemen, as far as the Mississippi Choctaws are concerned, they did not have to apply for admittance to citizenship. They were not required to be adopted. They only required identification. They were just as much citizens of the Choctaw Nation as the people were who were out West. And this resolution of the council was in 1895, two years after the United States had declared its intention to abolish the tribal organization, and to itself designate who should be entitled to distribution, because the purpose so to do was declared in the act of 1893 and, when the commission was appointed, in 1896, they paid very little attention to what had been done one way or the other by the council of the Choctaws in the period between 1893 and subsequently. Mr. Ballinger. Mr. Cantwell, you do not mean the treaty of 1893, you mean the law of 1893 ? Mr. Cantwell. I mean the act of 1893. Mr. Carter. The act creating the Dawes Commission? Mr. Cantwelj.. In 1893 was the first declaration of the intention to create the commission. Mr. Hurley. Was not that same declaration made in the treaty of 1866, the declaration to individualize and allot in severalty ? Mr. Cantwell. The act of 1893 declared more specifically the intention to take into its own hands the government of the Choctaw Nation, and the act of 1889 had extended the laws of the State of Arkansas over the Indian Territory, which was not done in 1866. Mr. Hurley. You said that the first time that the Government of the United States declared its intention of individualizing the Choctaws and making allotments in severalty was in 1893, and you stated just prior to that the provisions of the treaty of 1866 under which the Government had intended to individualize and allot in severalty the property of the Choctaws and the Chickasaws? Mr. Cantwell. The distinction is this: That while an intention to individualize the Indians was manifested by the treaty of 1866, and a scheme of government proposed, yet it never was adopted in accordance with the language of the treaty of 1866. As a matter of fact, the Commissioner of Indian Affairs was to be the governor of that Territory under the treaty of 1866. It was contemplated that he was to be practically a vice consul of the Indian Territory. The act of 1893 was the first declaration which was really effectuated. Mr. Carter. You spoke of it not being necessary for the Missis- sippi Choctaws to make proof, that they simply had to be identified. I would like to get from you a little fuller explanation about that along the line of distinction. What was the difference between the Indian T^ho had to be identified and the one who had to make proof? Mr. Cantwell. So far as adoption went, the adoption was at the pleasure of the tribe during the time when the tribal government exercised any power. When we come down to the recognition of these rights, the first act of Congress loking to distribution in severalty did retain the right of the Mississippi Choctaws and did reserve the rights of the Mississippi Choctaws without regard to ENEOLLMENT IN THE FIVE CIVILIZED TEIBES. 323 removal. The House committee, in 1896, had reported that the Mississippi Choctaws had been recognized by the treaty of 1866, but the committee said they were not bound by that treaty because nobody had represented them except their brethren out West, but they had been recognized by that treaty. .The House report further stated that those rights existed without removal. That was after considerable investigation in 1896. The first of the acts of Congress on this subject subsequent to this report of the House committee was a reference, simply for the purpose of investigation. The act of June 7, 1897, recjuired the commission to "examine and report whether the Mississippi Choctaws under their treaties are not en- titled to all the rights of Choctaw citizenship, except an interest in the Choctaw annuity." That was inserted in there under this peculiar idea that they had forfeited the right to the annuity, which I do not think is right. The act of June 28, 1898, provided that the " commission shall have authority to determine the identity of Choctaw Indians claiming rights in the Choctaw lands under article 14 of the treaty between the United States and the Choctaw Nation concluded September 27, 1830, and to that end they may administer oaths, examine witnesses, and perform all other acts necessary thereto, and make reports to the Sec- retary of the Interior." In the hearings at the last Congress, the last hearing upon this subject, I went quite fully into that question, showing that under this provision of the act of June 28, 1898, there was no definition of the rights; that there was nothing except a purely ex parte investigation by the commission ; that there was no definition of the descendants of those beneficiaries under the treaty of 1830, and no notice to them; and that there was no advertisement .such as would permit thoSe people to know of those things. Ordi- nary intelligent white citizens of the United States do not take notice of even the general laws of the United States and do not know of them until many years afterwards. There was no express, definite recognition of tltiose rights, or any definition of the persons entitled thereto, until the act of 1902, and, gentlemen, while the act of 1902 appears to recognize these people and their descendants, and recog- nize their rights, yet it limits the enjoyment to the descendants of those who had received a patent to land, when the testimony all shows that not 5 per cent of the people who were deprived of their reserva- tions under article 14 of the treaty of 1830 ever received a patent to land. Mr. Carter. I do not think you quite caught my question a few moments ago. You spoke of certain claimants having to make proof and others not having to make proof, but simply having to be identi- fied. What class of claimants, if you can tell us, were required to make proof, and what were not required to make proof but were required only to be identified? Mr. Cantwell. Under the act of 1902 those who were descended from an ancestor who had received a patent, mixed bloods, were entitled to membership; but, as I say, those who were entitled to patent had not been given patents. The Choctaw Nation West had recovered damages from the United States because their ancestors had rot received the patents to lands. Why, then, limit the right to those whose ancestors had received a patent? The Choctaw Nation West had received this indemnity from the United States, and the ancestor 324 ENROLLMENT IN THE FIVE CIVILIZED TRIBES. and his descendants, on whose account the tribe out West had received indemnity, were totally excluded by this act of July, 1902. It is stated in the other hearings that subsequently the Department of the Interior held that anyone whose ancestor had obtained scrip and not a patent would be entitled to enrollment, but such construction of the act of 1902 was, as I showed in a former hearing, not made public in time for anyone to take advantage of it. In addition there was a limitation of right to enrollment to those who had removed to Okla- homa in the act of July, 1902. It is generally stated by the agents ■of the department and by the attorneys for the tribe that no person was enrolled under that clause by reason of any application under the act of July, 1902. In other words, the first time the rights are defined by act of Congress they were shut off automatically by the same act. It is only necessary to read the act of July, 1902, to show that it held a world of promise to the ear but broke it to the touch. This act pretended to recognize rights, but it really destroyed rights. I am satisfied that Congress did not intend any such consequence, but the zealous attorneys for the tribe, anxious to limit these distri- butions to the people with whom they had contractual relations in Oldahoma, thought that it was desirable and necessary for them to use every technical method to exclude claimants, whether they were entitled to membership or not. Mr. Carter. Under the contract that the attorneys for the tribe had at that time, would it have been of any pecuniary benefit to them to have excluded any Mississippi Choctaw from the rolls? Mr. Cantwell. Yes, sir. Mr. Carter. Unless he had already been ordered enrolled by the Federal court? Mr. CA^!T^VELL. Whether that contract applied only to those who had been enrolled by the Federal court, yet these provisions of the act of 1902, in attempting to include all those who had been enrolled by the Federal court, included all those who had filed before the com- mission. These provisions included all who were excluded, although the fee was only actually allowed on the basis of those admitted by the Federal court, which were excluded by the act. Mr. Carter. You have examined their contract? Mr. Cantwell. Generally. Mr. Carter. The point is that the contract contained a specific provision that the compensation to the attornej's for the tribe was to be based upon a percentage of the value of the allotments of those who were taken from the rolls who had already been admitted by the Federal court? Mr. Cantwell. Probably. Mr. Harrison. Can not that contract be inserted in the record? Mr. Carter. Yes, sir. Mr. Cantwell. In attempting to exclude those people and per- form their contract and earn that large fee they used every device to limit those who might be admitted to membership in the tribe. Mr. Carter. The tiling I want to understand and about which there seems to have been a great deal of unnecessary confusion, is who was McMurray employed to put of the rolls ? I think everybody Imows my position on it ; I thought myself the fee was excessive, but my understanding of the contract, which will be placed in the record, is that the attorneys under its provisions only sought to get a fee for BKBOLLMENT IN THE FIVE CIVILIZED TRIBES. 325 such persons as had already been placed on the rolls by the Federal court and that the exclusion of those who had not already been placed on the rolls by order of the Federal court did not bring to them any pecuniary benefit under their contract? Mr. Cantwell. Well, probably not; but in attempting to exclude those in which attempts they earned their fee, I repeat, they adopted every device to diminish the membership in the tribe. Mr. Harrison. It has been contended by the attorneys for the tribe, as I understand it, that under the fourteenth article it was a personal right conferred upon the Mississippi Choctaws, and I would like for you to discuss the question of whether or not it is a personal right. Mr. Cantwell. So far as the question of whether that is a personal right or not goes, the first thing to consider is what persons at that time were considered. Is it conceivable for one instant that under the conditions which I have detailed the man who was going to re- main in Mississippi would only have the right during his life and that his family and descendants would be deprived? Is such a proposition as that conceivable ? That proposition could have never been dreamed of for one instant by anyone at that time. Why, he who remained in Mississippi had all the rights of a Choctaw citizen, and he had all such rights without the fourteenth article, and the clause in the fourteenth article was put there to prevent any question being raised as to whether he might forfeit any of such rights by becoming a citizen of the United States. It says that he shall " have all of the privileges of a Choctaw citizen." Now, what is the privi- lege of a Choctaw citizen? It is the privilege of a Choctaw citizen to enroll himself, .his family, and descendants — all of them. The title of the Mississippi Choctaw is the title by which every man in Oklahoma has his rights to-day. Gentlemen sit here and pick up the treaty and say that the grant- ing clause of the treaty of 1830, which ran to the members of the Choctaw Nation and their descendants so long as they lived on the 'lands, did not apply to those who remained in Mississippi. Why, bless you, in all grants in common it is only necessary that one holds possession for all. That condition arises in grant of Indian land to which this act of Congress of 1875 applies. The fact is that the Choctaw Nation never did actually occupy all of the lands in the West and never pretended to occupy all of the lands in the West. They simply held title for all the members of the tribe by occupy- ing a part of it, whether they were all there or not. Mr. Carter, for instance, is in Washington, but it is held for him. It was held for those who were in Mississippi. Now, what is that distributive share to which each citizen is entitled? That distributive share is the right to go there at any time and to enjoy their community right so long as it is a community right, and when the rights come to be individualized and distributed per capita, then it is the right with- out going there to share in the distribution. Now, the Mississippi Choctaw has always had that right, but has never had that oppor- tunity. He has never been given that opportunity. His descendants have never been given that opportunity. Now, some gentlemen say that it will be impossible for any claimant under the fourteenth ar- ticle to make proof. Gentlemen, 1847 is not such an awfully long time ago. You say it is 70 years, but you prove title by pedigree to land after 70 years without great difficulty. A great many men rememb,er 326 ENROLLMENT IN THE FIVE CIVILIZED TKIBES. their grandfathers. . My mother was living in 1847, and I can prove four or five generations. I,expect every man here can prove pedigree baclc to his grandfather. Whether, however, any particular indi- vidual can prove it or not, that is his lookout. In God's name give them an opportunity to prove it. Give them an opportunity to prove it as they would prove their title to land in the ordinary courts of justice. Give them an opportunity to prove this right which the Choctaw Tribe has always recognized, which the Congress of the United States has pretended to recognize, but which the Congress of the United States, by error, has destroyed. Mr. Carter. I do not want to break into the continuity of your argument, but if you are at a point where you can stop, I would like to suggest something. I made a note a while ago that your contention was that there was a diflFerence between the treaty of 1866 and subsequent treaties. Mr. Cantwelt.. The treaty of 1866 is the last treaty. The act of Congress of 1871 prohibited any further treaties with Indian tribes. The agreement of 1902 is sometimes referred to as a treaty, but it is not in any sense a treaty, because there was no tribal organization in 1902 competent to make a treaty. It was decided by the Supreme Court of the United States, in the Two hundred and twenty-fourth United States Reports, that the so-called treaty of 1902 was but an act of Congress; that it was subject to change by the Congress except as to property which has been actually received or individually allotted. Mr. Carter. Does not that same decision relate to all treaties ? In other words, has not Congress the right to abrogate any treaty at any time it desires? Mr. Cantwell. It has been held that it has absolute power in that regard, without any constitutional limitation upon that power Mr. Carter (interposing). So in that respect there is no difference between a treaty and an agreement? Mr. Cantwell. Probably not. Mr. Ballinger. Not unless property rights have attached. Mr. Cantwell. We are discussing treaties now. Mr. Carter. He has said that already. I would be glad if yoii would go briefly into the matter of the procedure of making a treaty, and compare that procedure with that followed in the making of an agreement. Mr. Cantwell. Well, a treaty is generally understood to be a con- vention made by the Executive with the approval of the Senate of the United States alone. Those are the only treaties of the United States within the meaning of the Constitution. The agreement of 1902, you might say, was mnde under legislative direction. It was in no sense a treaty, because there was no sovereign power recognized on the other side, and a treaty can only be made between sovereign- ties. As a matter of fact, the treatv of 1902 was simply an agree- ment between the attorneys for the Choctaws and Chickasaws and the commission. It was in no sense a treaty, although that agreement of 1902 was ratified by the votes of a great many people down there in the Territory. Mr. Ballinger. A part of it was. Mr. Cantwell. Yes, sir ; a part of it was. The part of it providing for the citizenship court and the act of 1902 as finally passed was not the act that was voted on down there at all. EKTKOLLMENT IN THE FIVE CIVILIZED TKIBES. 327 Mr. Cakter. I think that was voted upon before it was made a law. Was that done without reference to whether the tribe approved it or not? Mr. Cantwell. Yes, sir. Mr. Caetee. This was the procedure under which both the Atoka agreement and the supplemental agreement of 1902 were enacted, if I remember correctly: Negotiations were entered into between representatives of the tribe and commissioners on the part of the United States, and that agreement was ratified by a vote of the peo- ple. I do not recall whether they were ratified by the councils or not, but they were ratified by a vote of the people and by both Houses of Congress, were they not? Mr. Cantwell. Yes, sir ; as changed after being voted on by those in the Territory the act was passed by Congress. It has been re- peatedly held, however, that the rights of these people in Mississippi could not be abridged, if they had those rights Mr; Carter (interposing). I am not speaking about the rights; I wanted to know the procedure. Mr. Cantwell. Further, on this question of the right to share in the tribal pro"perty after one becomes a citizen of the United States, and on the question of the necessity of the claimant to a distributive share being on the reservation, I want to cite the committee to the case of Hy-yu-tse-mil-kin v. Smith, reported in the One hundred and nineteenth Federal Eeporter, page 114, that being a case where one who was off the reservation was enrolled. In this case the court said: The only reason why her right was not recognized by the Secretary of the Interior was because she was not residing on the reservation when the com- mission appointed for that purpose made up the list of those entitled to take lands in severalty. This was an erroneous view of the law. I cite now the case of Smith v. Bonifer, reported in the One hun- dred and fifty-fourth Federal Reporter, page 883. In that case it appears that the mother of Philomee Smith was a Walla Walla In- dian woman, and it was doubtful whether Philomee Smith was born in the .Walla Walla country or in the Willamette Valley. Philomee married a white man and lived off the reservation. The language of the allotment act of 1885 was that the President should " cause like lands to be allotted to the confederated bands residing upon the Yumatilla Reservation." The court said that it was sufficient that the individuals seeking allotments were entitled to membership in the tribe which resided on the reservation. That answers the point that Mr. Post has made on the necessity for each claimant residing there. Mr.- Carter. Now, Mr. Cantwell, was this reservation that you spoke of in this last case— of Smith v. Bonifer— a treaty reserva- tion, an Executive order reservation, or was it a patented reser- vation ? Mr. Cantwell. I have not looked that up. Mr. Caetee. That would be very material. Mr. Cantwell. I imagine that this decision is largely based upon the statute of 1885, and that applies generally to all Indian reser- vations. 328 ENEOLLMENT IN THE FIVE CIVILIZED TKIBES. Mr. Carter. Were the patents given to the Indians of the Five Civilized Tribes in Oklahoma the first patents that were ever giveu to reservations ? Mr. Cantwell. The first patents ever given to individual reser- vations, I think, were patents issued in 1830. I do not know which were actually issued first, those to the Cherokees or Choetaws and Chickasaws, but the patents issued to the Cherokees, Choetaws, and Chickasaws weer the first definite individual patents that were ever issued Mr. Ballinger (interposing). You are mistaken about that. They date back to 1790. I have prepai-ed considerable data here on that question of patents being issued to individual Indians. Mr. Cantwell. I have not looked that question up, and I am glad that Mr. Ballinger has that information. Mr. Carter. Mr. Cantwell, it would not be your contention that the same rules of law might be applied to an Executive-order reser- vation that might be applied to patented reservations, would it? Mr. Cantwell. As to the duty of Congress to supervise the mem- bership on the rolls, to see that the persons who by the treaty stipu- lations are entitled to membership, etc., I think it would make no difference what the patent to the tribe was. This is not a case to which you can apply the technical learning that you would apply to, say, a contingent remainder at common law. The Supreme Court says that the same spirit of justice and the same method followed in de- termining the rights of the tribe should be exercised by the United States as between a superior and a dependent inferior. If this is so when the United States deals with the tribe, manifestly the same measure of justice should be applied by the United States when it undertakes to determine who are the members of the tribe. That is particularly true when it is certain, as it is in this case, that during all the time that the tribal democracy existed, during all the time that the Choetaws West had the right to express themselves, they recog- nized constantly the rights of their brethren in Mississippi, from whom they had been separated, and the rights of the descendants in Mississippi to full and equal ownership and fellowship whenever they should choose to come into the tribe. Now, when that was stricken off, when that power in the Choetaws West to identify them was stricken off by the United States stepping in and undertaking to control this matter, then the United States should continue, and it did intend to continue, that same measure of justice to these people, but the act of 1902, by which Congress intended to declare those rights and confirm those rights, absolutely destroyed them. That was the act of 1902. Mr. Carter. I want to ask you if you know whether prior lo the coming of the Dawes Commission to Oklahoma, after a constitutional government was formed by the Choetaws and Chicasaws, the Fed- eral Government ever assumed jurisdiction to make a roll for the Choetaws and Chickasaws? Mr. Cantwell. No, sir. I do not know for how long a time after 1855 the Government undertook to distribute per capita to these peo- ple. My impression about the matter is that the distribution of the proceeds of the sales of the leased district was made by Mr. Owen as Indian agent Mr. Carter (interposing). You mean the net proceeds? BNEOLLMENT IN THE FIVE CIVILIZED TRIBES. 329 Mr. Cantwbll. The "net proceeds," yes, sir. That distribution was made by the Indian agent, and whether the United States un- dertook to determine who were entitled to that per capita I do not know, but it is quite certain that the distribution of the pro'ceeda^ of that judgment of $2,900,000 was made in Oklahoma. Now, there has been reference made to $825,000 out of that judg- ment in one of the documents submitted by the attorneys for the tribe to meet individual claims, but these particular reservations under the fourteenth article were not made a part of those individual claims. Those individual claims were largely claims for subsistence and things of that sort for people who had moved themselves to Okla- homa. What that $825,000 consists of nobody here has been able to find out. It was paid in one lump sum of $825,000. I have searched all through the Congressional Library and through the Choctaw and Chickasaw records here, but I can not find out how the items of it were ever paid, or to whom any of it was ever paid. However, it is quite beyond question that the lands of those 4,000 people, which had been given them in Mississippi,. under the four- teenth article and which they never received, constituted the basis for the recovery of that money from the United States. The de- scendants of those people are entitled to membership in the Choctaw Nation, and the Qhoctaw Nation is conclusively estopped from assert- ing that they are not members of the Choctaw Tribe and citizens of the Choctaw Tribe, by reason of the fact of that recovery, and by reason of the distribution of the funds which otherwise would have belonged to them as individuals, to the members of the tribe out there in the West. Now, how many persons there are who can not prove, imder any fair rule of evidence, that their ancestors were entitled to receive a patent to land under clause 14 of the treaty of 1830, 1 do not ' know ; but I have no doubt, gentlemen, that there will be thousands of them who now think they can who will fail. I do not think there are a great many Mr. Carter. What compensation do those contracts provide ? Mr. Cantwell. They provide that the fee shall be fixed by act of Congress, or subject to change by act of Congress, and by the Sec- retary of the Interior. They provide for from 25 per cent to 35 per cent. A few of them provide for 35 per cent. Mr. Post. If these 4,000 persons were enrolled as citizens of the Choctaw Nation and if they were entitled to all of the emoluments that you claim for them, what would be the aggregate amount com- ing to them ? Mr. Cantwell. They are not claiming under this bill the distribu- tions which were made per capita that they did not go out there to be identified for— that is, those cash distributions that were made during the time the tribe was in existence — of lease money, or of the "net proceeds" case. They are perhaps equitably entitled to those, but they are not claiming that. They are claiming, in lieu of the lands that those now on the rolls have gotten, or this bill provides, that they shall get an amount in cash equal to the sum arrived at by multiply- ing the number of acres already allotted to those on the rolls by twice the normal appraised value. That amounts, so far as these lands go, to about $2,000 apiece. It would amount to an equal dis- 330 ENEOLLMENT IN THE FIVE CIVILIZBD TRIBES. tribution with the lands already allotted, if they are awarded those rights Mr. Post (interposing). What do you estimate that to be? . Mr. Cantwell. The estimates vary. Everyone now on the rolls has gotten his 320 acres at a nominal appraisement, and those lands are in many cases worth $100 per acre to-day. There would probably be at a low estimate $25,000,000 or $30,000,000 worth of property left after these Mississip plans got this equalization of allotment; that is, at the very lowest estimate. Mr. Carter. I have here what purports to be a copy of a contract, printed with the names of Cantwell and Crews on it, which contains the following provision : Fifth. To collect and receive all sums of money, lands, and property that may lawfully be collected, selected, and received by reason of said right here- after and to faithfully pay over and account to the party of the first part for all such sums of money, lands, and property after deducting the compensation herein provided for. I do not notice anything in this contract- Mr. Cantwell (interposing) . Let me see it just a minute. Mr. Carter. That is the contract. Mr. Cantwell. This contract is not the contract that we have been taking any Mississippi Choctaw claims under. This is a contract which was made with those of mixed negro and Indian blood. Mr. Carter. How many of these contracts have you? Mr. Cantwell. Well, we have — I do not know the exact number, Mr. Carter. We have not been pushing those claims. Mr. Carter. I notice here an affidavit by A. P. Powell, in which he sets out, I believe, that he has taken, through Milton J. Turner, Robert L. Fortune, and others, contracts for about 2,300 people. Mr. Cantwell. Is that A. P. Powell ? Mr. Carter. Yes, sir. Mr. Cantwell. Turner and Fortune had nothing to do with tak- ing these Mississippi contracts. Mr. Carter. He states in that affidavit that he has taken 2,300 of these contracts and turned them over to Cantwell and Crews. Mr. Cantwell. I do not know what the contents of that affidavit are, but that is probably true. If that is what he saj^s, that is prob- ably true. I think if you desire any information in regard to those contracts Mr. Carter (interposing). This is a question that we ask each attorney appearmg here. Mr. Cantwell. I only want to say this to you, that we had some difficulty with Mr. Powell. Mr. Powell was sent to Mississippi under a salary of $150 per month and expenses to take these con- tracts for our firm. He charged us his expenses for notary fees and for everything else. We learned that he was charging some of these people small sums of money, and I got him to St. Louis and asked him about it and jacked him up about it. Then we bought Powell's interest entirely out. Here is an affidavit which was made by Powell on the 6th day of November, 1911 [handing Mr. Carter a documentl. You understand that these contracts taken by Powell have no con- nection with these others. Mr. (]arter. These are f reedmen's contracts [referring to contracts held in his hand] ? ENROLLMENT IN THE FIVE CIVILIZED TRIBES. 331 Mr. Cantwell. Yes, sir; that is my recollection. Mr. Carter. Let us see what it is. Do you say that this provision authorizing you to collect and receive all sums of money, lands, and property that may lawfully be collected, etc., is not in your contract with the Mississippi Choctaws ? Mr. Cantwell. I will send you an exact copy of the contract with the Mississippi Choctaws. I believe there was a copy of the form furnished in that investigation of Indian contracts made by the com- mittee, but if there is not I will send you a copy of it. Mr. Carter. Now, then, Mr. Cantwell, I notice that Mr. Powell testifies to having turned over about 4,200 contracts with Mississippi Choctaws to Crews & Cantwell. Then another gentleman states that he has turned over — I have not that affidavit here with me, but he states that he has turned over to Crews & Cantwell about 1,300 contracts with Mississippi Choctaws in addition to the ones turned over by Powell. That was a gentleman by the name of Luke W. Conerly, of Gulf port, Miss. Mr. Cantwell. I think Mr. Powell is mistaken. Mr. Carter. This is Mr. Conerly. Mr. Cantwell. I thinli Mr. Powell is mistaken as to the number he turned over. Here is an affidavit and statement made February 16, 1912, with a copy of an affidavit of Powell when we got rid of him, a statement which I sent out at that time. Mr. Carter. The summary of the number of contracts here is set out as 7,758. Mr. Cantwell. Who made that summary ? Mr. Carter. This is a summary whichi the clerk made from the affidavits. I thought he had all the affidavits here, but I notice that he has only the one from Powell. Mr. Cantwell. If the committee desires, I have all the contracts except about 400 which are in the possession of Mr. Luke W. Con- erly, of Gulfport, Miss., in a safe deposit in "Washington, with a mem- orandum of the evidence made by each claimant, and they are open to the inspection of the committee at any time. Mr. Carter. Mr. Powell says that he charged each applicant from $1.25 to $2.50. Mr. Cantwell. He says that he charged ? Mr. Carter. He says: After the 4,000 were registered more applicants came in and I cliarged them $1.25 each. I made this charge because the money that had been advanced by Crews, Cantwell, and Hulbert was exhausted, and they refused to put up any more money for taking applications. This charge by me was to cover expenses of continuing the work of getting applications. I sent all these claims that I was making a charge for to Crews and Cantwell. I went from Bay St. Louis to Washington to see Mr. Cantwell, and he tried to get Hulbert to put up more money, and Hulbert notified me at Jackson, Miss., that he had put up $7,000, and that we had to take proof of the same, and that he was willing to put up the $7,000 for that purpose. He has not put it up yet. Then he says: I went to Monticello and took applications for Crews and Cantwell and charged $2 50 each there. I took about 100 names there. I took a few names at Biloxi and charged $1.25 for each applicant there. These claims were for Crews and Cantwell. I also visited Meridian and took about 88 applications there for Cj:ews and Cantwell, but for which no charge was made. Mr Cantwell. I want to say unqualifiedly and as strongly as I can say it that if Mr. Powell or anybody else says that we ever au- 332 ENEOLLMENT IN THE FIVE CIVILIZED TKIBES. thorized him to charge $2.50 and knew he was charging $2.50, or any sum whatever, for any of these contracts, he is an unmitigated per- jurer. Never, with our consent, was there $1 of money charged, and furthermore, as this aflBidavit which I submit to you shows, when we discovered that he had done it, we paid Powell a large sum of money to get rid of him. Mr. Carter. When did you sever the connection? Mr. Cantwell. This circular, which was sent out on the 16th of February, 1912, shows our full connection with Mr. Powell. Mr. Carter. Does it show the date ? Mr. Cantwell. Yes, sir. Mr. Carter. Do you know what the date is? Mr. Cantwell. Some time in January or February, 1912. Mr. Carter. That was after the time he had made this affidavit. This was on April 27, 1911. Mr. Cant-^toll. He is an unmitigated liar if he ever says that any charge was ever made with our knowledge or consent, because he charged us with all the expenses and we have vouchers for them. Our instructions to him were to not under any circumstances permit anybody to pay him anything. I would like to have this made a part of the record [referring to letter and affidavit handed to Mr. Carter]. Mr. Carter. Yes, sir. Since the time that you severed connection with him, you have not authorized him in any way to act for you or Mr. Crews? Mr. Cantwell. No, sir. Mr. Caeter. Has he continued to take contracts? Mr. Cantwell. I do not know for whom he has taken contracts. 1 understand he has been down to Mississippi. The only contracts afterwards taken for us were contracts taken by Mr. Luke W. Oon^ erly, at Gulfport, Miss. Mr. Carter. He is your agent? Mr. Cantwell. Yes, sir. Mr. Carter. He is still continuing to take contracts? Mr. Cantwell. I believe so. Mr. Carter. When you separated from Mr. Powell, did you give him any letter of recommendation? Mr. Cantwell. Yes, sir; I committed the unpardonable folly of writing a letter to Powell — ^lie is a very peculiar human being, you know, very active — in which I complimented him for staying here and keeping open the Mississippi Choctaw matters. He and Nichols, as you know, stayed around in this Capitol and haunted everybody for months and months when practically everybody in Oklahoma and Mississippi had given up hope, and I wrote a letter to Powell which gave Powell entirely too much credit, and which he immediately had lithographed. He changed one part of it, one sentence in the origi- nal copy, and spread it all over Mississippi. There is nothing in that letter to be ashamed of except that I was probably too generous in giving him credit for something to which he was not entitled. Mr. Carter. You found out at the time you made this settlement and turned him off that he was a man of bad repute? Mr. Cantwell. At the time we made this settlement? Mr. Carter. Yes, sir. Mr. Cantwell. Mr. Carter, after we made that settlement with Mr. Powell and engaged Mr. Conerly, Powell, I was afraid, would go ENEOLLMENT IN THE FIVE CIVILIZED TRIBES. 333 'down to Mississippi and go to taking contracts. I was afraid that we could not keep him quiet. I did not want him to take any more con- tracts. I agreed to pay Powell a small salary if he would go down there and stay there under the direction of Conerly. After we bought him out, simply to dispose of him, we agreed to pay him $50 or $60 a month. Mr. Carter. So he did work for you after that ? Mr. Cantwell. No; he went down there with the understanding that he was not to take any contracts at all. Mr. Carter. But was to draw a salary? Mr. Cantwbll. Yes, sir. He telegraphed me from some point down there that the deal was off, and the next day he went to taking contracts. Mr. Carter. On his own hook? Mr. Cantwell. On his own hook, I suppose. I then got out this circular. That was the occasion for getting out this circular. Mr. Carter. Do you not think that giving him this letter from a firm of lawyers like yourself and Mr. Crews would give a certain standing that might enable him to take contracts that he could not possibly have gotten without that letter? Mr. Cantwell. I am inclined to think that that is probably true, but I sent out this statement broadcast all over Mississippi for the purpose of preventing that. I stated at the bottom : We repeat, we have never had any desire to take away from Powell the credit for wh.Ttever work he has done. He is in the habit of looking upon himself as the " father " of the Mississippi Choctaws. We have been reliably Informed that Powell has heretofore represented throughout Mississippi that he was the at- torney who presented this matter before Congress. In order to gratify his vanity we had inserted in the- first contracts a recognition of Powell's services, but the copy of the statement, and the only statement which Powell has ever made before any committee of Congress, is herewith inclosed, from which each claimant can easily determine for himself that if the rights of the Mississippi Choctaws had depended upon Powell's efforts alone, they would not have gotten very far toward being recognized. The statement itself shows that Powell did nothing except call attention to his own claim. Mr. Carter. How much does the Harrison bill provide shall be .paid to each claimant? Mr. Cantwell. Double the appraised allotment. Mr. Carter. $2,040? Mr. Cantwell. Approximately. Mr. Carter. It is stated here that 9,558 of these contracts are con- trolled by Crews & Cantwell. I am not saying that is or is not true, but a calculation of 9,558 multiplied by $2,000 would be $19,116,000, and if the fees set out in your contracts were paid to you, you would get about one-third of that sum. Some of them are 30 per cent and some 35 per cent? Mr. Caktwell. I do not think there are any of these 35 per cent. Mr. Carter. This one here is 35 per cent. Mr. Cantwell. That is not a Mississippi Choctaw contract. Mr. Carter. It provides for the enrollment of the people ? Mr. Cantwell. Yes, sir ; but that would include f reedmen and all. Mr. Carter. That would aggregate a fee of $6,338,000. That would b6 a great deal more than Mansfield, McMupray & Cornish ever dreamed of. That seems like too much to me. 334 ENROLLMENT IN THE FIVE CIVILIZED TRIBES. Mr. Cantwell. That calculation presupposes that all are going to be enrolled. In the next place, it includes, in your estimate, a great many people who are not Mississippi Choctaws who could be elimi- nated from consideration. Mr. Carter. If they were enrolled they would be entitled to the same consideration? Mr. Cantwell. The Mississippi Choctaw contract, as printed in the record of the investigation committee, plainly shows that what- ever that fee is it is subject to change by the Secretary of the Interior. Of course, it is proper for the committee to go into that matter and fix the fee, or put a limitation upon the fee ; but yet the rights of the people, or their opportunity to be heard, of course, should not be affected in any way by that contract. Mr. Carter. Have you hypothecated any of those contracts? Mr. Cantwell. No; I have hypothecated none of those contracts. There has never been a hypothecation of any of those contracts so far as we are concerned. There are some gentlemen in Texas who are interested with us in part of those contracts and in whatever sum may be recovered, who have advanced money for taking those con- tracts and have agreed to advanc some money for the necessary ex- penses whenever we get an opportunity to be heard. Mr. Carter. How much have they advanced ? Mr. Cantwell. They have advanced altogether — I do not know the exact figures, but it is probably $15,000. Mr. Carter. What security did they take? Mr. Cantwell. They took an agreement from us that they should have an interest in whatever we might recover. Mr. Carter. That would practically be a hypothecation ? Mr. Cantwell. That is not hypothecation ; it is a declaration that they shall receive a certain proportion. Mr. Carter. How much are they to receive for financing it ? Mr. Cantwell. My recollection is that in the case of the Missis- sippi Choctaws it is 60 per cent — whatever it may be. Mr. Carter. Whatever your fee is? Mr. Cantwell. Yes, sir. Mr. Carter. What is the name of the concern that is financing these contracts? Mr. Cantwell. It was incorporated by those people under an agreement and called the Texas- Oklahoma Investment Co. Mr. Carter. Who compose the corporation ? Mr. CANTWELii. A number of gentlemen in Houston, Tex. — friends of Mr. Harris Masterson. Mr. Carter. Do you know any of the other names? Mr. Cantwell. I do not know any except Mr. Masterson and Mr. Hulbert. Mr. Carter. Are those the only people you have negotiated with concerning these contracts for the purpose of raising money ? Mr. Cantwell. Those are the only people with whom we have ever signed a contract assigning an j' interest in Mississippi Choctaw contracts. They now compose the Texas-Oklahoma Investment Co. Mr. Carter. Did you have any business with a fellow named C. B. Moiling, in Ohio? Mr. Cantwell. No, sir. Mr. Carter. With Mr. Dechant? BNEOLLMEKT IN THE FIVE CIVILIZED TBIBES. 335 Mr. Cantwell. No, sir. Mr. Carter. Did you have any correspondence with him ? Mr. Cantwell. No, sir. He may be a stockholder in the Texas- Oklahoma Investment Co. He may have sold his stock to somebody else, but so far as my knowledge goes Mr. Carter (interposing). It was an organized stock company? Mr. Cantwell. Yes, sir. Mr. Carter. And the stock was sold? Mr. Cantwell. Yes, sir. Mr. Carter. What is the capital? Mr. Cantwell. The capital stock is $100,000. Mr. Carter. What was the capitalization based upon? Mr. Cantwell. It was based on the assignment of the fees which might arise under the contracts. Mr. Carter. What was the relative value between the capitaliza- tion and the fee? Mr. Cantwell. There was an agreement to put up $25,000 and to give Mr. Crews and myself 40 per cent of the stock. In other words, the contracts were assigned to the Texas-Oklahoma Investment Co. ; they agreed to provide a fund of $25,000. Mr. Carter. And you take 60 per cent? Mr. Cantwell. Forty per cent. Mr. Carter. And they 60 per cent? Mr. Cantwell. Yes, sir. Mr. Carter. They to pay in $25,000 for the 60 per cent? Mr. Cantwell. Yes, sir. Mr. Carter. Then, there has been really $25,000 paid instead of $15,000? Mr. Cantwell. You asked how much had been spent. Mr. Carter. There is still $10,000 to be paid in? Mr. Cantwell. Yes, sir. Mr. Carter. And they were to have 40 per cent ? Mr. Cantwell. Sixty per cent. Mr. Carter. Then, for $26,000, if these contracts should go through, they would expect to realize $3,802,000? Mr. Cantwell. Of course, Mr. Carter, I have not speculated on anything of that sort. When the time comes it will be found, of course, that a great manj; of these people are not entitled to rights. We probably will determine that ourselves. Mr. Carter. You think they are all entitled to rights ? Mr. Cantwell. We have the memorandum of evidence of each, which attempts to show that they are. In addition to that, as you know, when it comes to taking the evidence, which some peojjle be- lieve is not possible, but I believe is, the taking of those depositions is going to be an expensive matter in each case— a very expensive mat- ter in each case. Each one of those cases is going to require not only the expenditure of a considerable sum of money m travelmg ex- penses, but notary costs, and things of that sort. Mr. Carter. How long was Powell in your employ? Mr. Cantwell. Until February, 1912. Powell was discharged by Cantwell in February, 1911, 1 think, for Powell began work for Mat- thews in March, 1913, at Columbia, Miss., and took contracts m the name of William B. Matthews in 1911, and not for Crews and Cant- well, and these contracts were subsfequently transferred to Crews and 336 ENBOLLMENT IN THE ITVE CIVILIZED TEIBES. Gantwell. Cantwell reemployed Powell to be under the direction of L. W. Conerly the latter part of February, 1912, and subsequently wired Cantwell the deal was off. Hence issue of circular. Mr. Carter. Was Milton Turner in your employ ? Mr. Cantwell. Not on the Mississippi Choctaw work. Mr. Carter. He was in your employ ? Mr. Cantwell. Yes, sir. Mr. Carter. Was Eobert Fortune ? Mr. Cantwell. Eobert Fortune helped Turner on some of the freedmen's contracts. Mr. Carter. Are any of those gentlemen Indians? Mr. Cantwell. No, sir ; not that I know of. I do not know Eobert Fortune at all. Turner is a negro. Mr. Carter. How about Powell? Mr. Cantwell. Powell claims to be an Indian. Mr. Carter. What do you think about it? Mr. Cantwell. My opinion of the Indian would be very much lessened if Powell is an Indian. That is all I can say from what I have seen of him. When I wrote him a letter, which I think any white man or any Indian would have considered a generous letter, he simply used it to hurt the cause, I thought. Mr. Carter. Eobert Fortune is a colored man, and for a number of years was a deputy marshal in the Indian Territory. Mr. Cantwell. I do not know him. Mr. Carter. Did you have anyone else at that time working for you in this matter ? Mr. Cantwell. Except Conerly ; no, sir. Mr. Carter. Conerly was employed since that time? Mr. Cantwell. Conerly was employed in the beginning, but with Powell. Mr. Carter. What was your intention about procedure with refer- ence to the freedmen? Did you think they were entitled to enroll- ment as blooded Indians ? Mr. Cantwell. Mr. Carter, so far as the freedmen are concerned, my views on the " freedmen and free-born propositions are stated in a very long brief that was filed at one of the other hearings. I think the free born, that is those who were born in the tribe and born free after the treaty of 1866, particularly the children of the freedmen, adopted by the Choctaws, using the word " freedmen " in its ordinary sense, and limiting the words " free born," to those born free, are entitled to citizenship. Mr. Carter. How many of those are there? Mr. Cantwell. I think there are probably a couple of thousand of them. Mr. Carter. 2,300? Mr. Cantwell. My reason for that is this, Mr. Carter. I think those who were born free and who are the children of those who had been adopted (former slaves) were born to citizenship. I really think if it came down to a question of justice the black race is en- titled to that consideration. I do not propose to. inject that con- troversy into this hearing because of the prejudice against the negro. Mr. Carter. We thought that we were doing pretty well when we gave him 40 acres. ENEOLLMBNT IN THE FIVE CIVILIZED TEIBES. 337' Mr. Cantwell. My views on that subject are set forth in the brief filed at the other hearing, in which I distinguished the rights of the " free born " from those of the " freedmen." The two are clear and distinct. I was raised in the southern part of Missouri, in a negro country, and I know something about negroes, and I was just as intense a Democrat as anybody up to the time when I became a Pro- gressive, and I know what the political prejudice against the negro is. Mr. Post. Are you still a Pi-ogressive ? Mr. Cantwell. Yes, sir; I am still a Progressive; but I want to say that I do not think it makes any ditference what rights the negro might have legally or otherwise, I do not think he is ever going to get them. Mr. Stillivan. I want to ask if you know how many full-blooded Mississippi Choctaws there are now living in Mississippi? Mr. Cantwell. No, sir; I do not. I do not believe anybody else knows. Mr. Sullivan. You do not know anybody else who does know, do you? Mr. Cantwell. Is this Mr. Arnold ? Mr. Caetek. Mr. ^uUivan. Mr. Cantwell. On the question of what is a full blood, Mr. Sulli- van, I have given my idea of what a full blood is, in the former hear- ing. Of course, 1 do not know how anybody can determine whether a man is a full-blood Choctaw or not. I do not see how anybody can say what is a full-blood Choctaw unless he is going back to the four- teenth article of the tteaty of 1830, when his status in the tribe was determined. Mr. Stji^livan. You made some reference to conditions in the early years, which I am inclined to agree with. In fact, I do. Do you know the condition of those that we term " half bloods " now ? Mr. Cantwell. Only by report. Mr. Sullivan. You do not Imow as to their education, schooling, and So on ? . Mr. CanTwell. No, sir ; not by actual observation. Mr. Hurley. I would, like to ask Mr. Cantwell a few questions. Mr. Carter. Certainly. Mr. Hurley. I would like to ask a few questions in regard to these contracts. Mr. Cantwell. You understand, of course, that I have not with me here anything which has been prepared, because I had no knowl- edge of this. I want to say for the benefit of the committee that a full investigation of our contracts has been made, ^and that you will find a copy of the Mississippi Choctaw contract in the printed record of the hearings. You will find in that circular handed Mr. Carter a frank and open statement of our connections with Powell. If you want to go into the question of the ownership of our fees, I am not prepared to go into the matter to-day. I am perfectly willing to submit to any investigation, but I respectfully submit to the com- mittee that the rights of these claimants or the duty of Congress with relation to this class of people can not be and should not be affected by the discussion of fees. 64969—15 22 338 ENROLLMENT IN THE FIVE CIVILIZED TBIBES. Mr. Cakteh. Without committing myself one way or the other, I take it that in any action we might take you would want us to make provision for the fee, otherwise you might not be able to get it ? Mr. Cantwell. Yes, sir. Mr. Carter. The committee can not intelligently consider a matter of that kind without knowing all the facts. Mr. Cantw:ell. I will be glad to come back and bring every scrap of information which I have and bring Judge Crews with me. For the last year particularly the relations with the people in Texas and with the agent in Mississippi has been through Judge Crews. Since Crews and I dissolved partnership I have been attending to other matters and he has been attending to that. I am prepared to bring Judge Crews back here so that we both may be subjected to the most rigid investigation in that particular that you may desire, because we have nothing to conceal, nothing to be ashamed of. Mr. Carter. I think perhaps we had better postpone it until you come back. Mr. Hurley. I would like to ask Mr. Cantwell if he knows whether these gentlemen are connected with the company or syndicate that now holds the Mississippi Choctaw contracts. He has spoken of Mr. Harris Masterson, of Houston, Tex., and Mr. E. L. ELulbert. Mr. Cantwell. Mr. S. L. Hurlbut. Mr. Hurley. Is Mr. W. A. Smith, of Houston, Tex., also a director of the company? Mr. Cantwell. My recollection, Mr. Hurley, is that Mr. Smith is the secretary of the company. That is my recollection. Mr. Hurley. Mr. J. B. Crews, your partner or former partner Mr. Cantwell (interposing). It is T. B. Crews. Mr. Hurley. And yourself, Mr. H. J. Cantwell Mr. Cantwell (interposing). Yes, sir. Mr. Hurley. That constitutes the board of directors of the com- pany, does it not ? Mr. Cantwell. Not now, because I resigned as a director for the purpose of giving them the control of the directory in Texas when they might have meetings. Mr. Hurley. Do you know whether or not the following-named persons are the principal stockholders of the company: Mr. H. J. Cantwell, Mr. T. B. Crews, both of St. Louis ; Mr. Clifford Greve, of El Campo, Tex. ; Mr. S. L. Hurlbut, of El Campo, Tex. ; Mr. H. Mas- terson, of Houston, Tex.; J. H. Kempner, of Galveston, Tex.; Mr. H. Kempner, of Galveston, Tex. ; L. Bryan, of Houston, Tex. ; J. J. Sweeney and W. H. Gill, of Houston, Tex. ? Mr. Cantwell. That is my recollection, Mr. Hurley. I think all of those gentlemen are stockholders in that company. Mr. Hurley. Now, state what connection, if any, Mr. C. B. Moi- ling, or C. B. Moiling & Co., of Houston, Tex., has with this com- pany that holds all these Mississippi Choctaw contracts. Mr. Cantwell. I do not recollect his name. Possibly he may be a stockholder. Mr. Hurley. You do not know whether or not he is authorized to sell stock or shares in the company that is holding these contracts? Mr. Cantwell. Mr. Hurley, any man who owns a certificate of stock in a corporation is entitled to sell his own shares. There has ENROLLMENT IN THE FIVE CIVILIZED TRIBES. 339 not been any sold by the company, so far as the company is con- cerned ; but if he has a certificate of stock he can sell it. Mr. Carter. Mr. Cantwell, the organization of this company is founded upon — — Mr. Cantwell (interposing). Whatever fees- Mr. Carter (continuing). The value of the contracts? Mr. Cantwell. Yes, sir. Mr. Carter. And unless these people are enrolled the stock is valueless ? Mr. Cantwell. Absolutely. Mr. Cariter. Then you and your stockholders are in just exactly the same attitude with relation to aiding these people to be enrolled as the firm of Mansfield, McMurray & Cornish was in endeavoring to keep the people off the roll ? Mr. Cantwell. Except that we do not occupy a fiduciary relation ; there is no question about that. Mr. Htjrlei'. I want to ask you about the statements in this com- munication. I am reading now from a letter from Mr. C. B. Moiling,, dated Houston, Tex., June 12, 1911 : It is estimated that eacli Indian's share of the estate is worth $S,000. The attorneys' contracts call for 30 per cent of this, or $2,400, of which we are to get one-half, or $1,200. We are organizing a syndicate to take over 1,000 of these contracts at $25 per contract. We will not accept subscriptions for less than 20 contracts, or $500. The estimated value of 20 contracts, if we win, will be approximately $24,000, or a profit of $23,500 upon each $500 invested. Did you make or authorize that statement to be made ? Mr. Cantwell. I never saw the article nor authorized any such statement as that. I never saw any such letter, and I have no knowl- edge of any such letter being sent. I can not imagine why it should have been sent or who could have sent it. Mr. Carter. For the information of Mr. Cantwell, I will tell him that the letter was sent to me by a former Congressman from Ohio with the suggestion that I had better look into the matter, because it looked as if somebody was trying to get off with something. I gave a copy of the letter to the department, and I presume Mr. Hurley got it there. Mr. Cantwell. I never heard of it and never authorized it. Mr. Carter. The letter was sent to a former Congressman from Ohio to know what he thought of it, and this former Congressman sent the letter to me by mail, and he also spoke to me about it. I turned it over to the department for their information. Mr. Cantwell. Our cards have been played on the top of the table on this proposition from start to"" finish. ' Mr. Hurley. There is one other question I want to ask Mr. Cant- well. On each of your contracts you take a record of the evidence of the persons with whom you enter into the contract showing his or her rights as a fourteenth article Mississippi Choctaw claimant? Mr. Cantwell. Of his or her claim to such rights ; yes, sir. Mr. Hurley. Who makes out that certificate of evidence? Mr. Cant^vell. The notaries are supposed to make it out in a great many cases. Some of them Mr. Conerly made out. Mr. Hurley. Did Mr. Powell make out any ? Mr. Cantwell. I do not think any of them are in Powell's hand- writing. 340 ENEOLLMEN'T IN THE FIVE CIVILIZBD TEIBES. Mr. HtTELEY. You stated that Mr. Powell took a great number of those contracts? Mr. Cantw^ll. Mr. Powell solicited a great many of them; yes, sir. Mr. .HuELEY. And he is the man whose reputation for veracity you have stated to the committee Mr. Cantwell (interposing). I have stated what his reputation for veracity is, in my opinion — that is, his veracity, because I have stated nothing about his reputation — ^but I have stated my opinion a3 to his veracity. Mr. HuELET. Yet you are relying on a statement or record of evi- dence made by him as to the claims of these people who have con- tracted with you. Mr. Cantwell. We are relying upon the evidence, and when the right is given, or the opportunity comes to present these rights, we hope we shall present the claim of nobody that we are not then satis- fied has a valid claim. Mr. Carter. What is your purpose, Mr. Cantwell, in taking the contracts in that way? Mr. Cantwell. The purpose of that is to have a prelimiiiElry state- ment of their claims sworn to by each one of them. Mr. Carter. You did not have time to go into them individually! Mr. Cantwell. No, sir; not at all. Mr. Hill. It seems to me that that is exactly the proper thing to do. Mr. Bond. What is the capital stock of this company ? Mr. Cantwell. As stated, I think it is $100,000. Mr. Bond. Was this corporation organized before you acquired the contracts or after ? Mr. Cantwell. That corporation was organized after we acquired quite a number of contracts. Mr. Bond. The relation of attorney and client exists between you and these Indian claimants, does it not? Mr. Cantwell. Yes, sir. Mr. Bond. How many of these claimants came to you and employed you as an attorney of their own volition ? Mr. Cantwell. Of our own volition Mr. Bond (interposing). How many of them came to you of their own volition ? Mr. Cantwell. I should say probably 250 or 300. Mr. Bond. Then, how many Mr. Cantwell (interposing). That I had never heard of before— maybe 500. Mr. Bond. Did they come to St. Louis and employ you at your office? Mr. Cantwell. No, sir ; by correspondence. _Mr. Bond. Then, how many did you acquire by solicitation or by hiring agents ? ' ' Mr. Cantwell. All the rest of them. Mr. Carter. In what States are your contracts taken mostly ? Mr. Cantwell. In Louisiana, Mississippi, a few in Alabama, and some in Oklahoma, Mr. Carter. Were they all taken in those States^ and none in other States? BNBOLLMENT IN THE FIVE CIVILIZED TEEBES. 341 Mr. .CANTWEi;,ji. N^p, sir; §onie were taken by correspondence in other States. Some of (them were in California, just as there are per- sons now on the roll who live in California. Mr. Caeteu. I suppose they are scattered all over the United States. Mr. Cantwell. Yes, sir; like everybody else. There are people who are now on the rolls who are scattered everywhere. Mr. Ballinger. Do you consider any of your contracts valid con- tracts to-day? l^Ir. Cantjvell. Whether we consider these contracts valid or not? As a matter of fact a provision which was. inserted in one of the ear- liest piecg§ of legislation — a provision which is outrageous, I think — prohibiting Mississippi Choctaws from making any contracts with re:?erence to their allotments, perhaps ma-y be in force to-day. Mr. Garter. I want a citation to that statute. I did not know aboiijjt that a,ct. Mr. Cantwell. There is an act of 1900, enacted under the idea .that these people, who have no money to employ attorneys, should be protected by a provision which would prevent them from encum- bering their allotments in any way. Mr. Carter. Do you ki^ow the date of that ^t ? Mr. Ballinger. The act of May 31, 1900. Mr. Cantw?!;,^;. Whether these contracts are valid without a sub- sequent act of Congress expressly permitting them I ha-ve my doubts. I have my doubts whether, when we get down to brass tacks, there could be a recovery of one cent on any of our contracts except by the aid of an affirmative act of Congress. For that reason Mr. Har- rison inserted a clause in the bill that the fees should be submitted to the Secretary of the Interior for his approval. I do not believe that any contract with any Mississippi Choctaw could be enforced to-day. ' Mr. Ballinger. With your permission I will read from the act of May 31, 1900, which appears on page 106 of this volume, entitled " Indian Affairs, Laws, and Treaties, Volume 1." That act contains this provision : Provided, further. That all contracts or ^greementst looking to the sale or encumbrance in any way of the lands to be allotted to said Mississippi Choc- taws ^hall be null and void. Mr. Carter. That was true of all Indians. Mr. Ballinger. No, sir; this relates to the Mississippi Choctaws. Mr. Carter. But in the Atoka agreement there is a provision for all Indians. The Atoka agreement provides that no allotment shall be subject to any contract heretofore or hereafter made. Mr. Ballinger. That is true; but this relates to the very contracts that were taken prior to 1900 with these Mississippi Choctaws. Mr. Bond. That act would only affect your contract in so far as it has attempted to reach the contemplated allotments to the Missis- sippi Choctaws and their contemplated funds? Mr. Cantwell. There are other reasons. There is no use going to other statutes, but there are other statutes that make it doubtful, exceedingly doubtful, whether any contract of this sort relating to Indian lands could be enforced without the approval of the Secre- tary of the Interior. S42 ENKOLLMBNT IN THE FIVE CIVILIZED TBIBES. Mr. Ballingee. I now call your attention to the provision con- tained in the act of June 30, 1913, which is the Indian appropriation bill, reading as follows : No contract made with any Indian, where such contract relates to the tribal ■funds or property in the hands of the United States, shall be valid, nor shall ■any payment for services rendered in relation thereto be made unless the con- .sent of the United States has previously been given. Mr. Caetee. Do you know why that was put in the law ? Mr. Cantwell. This general language is sufficient to include these Mr. Ballingee. I will ask you whether or not your contracts relate to tribal property held by the United States? If so, are they not therefore void under the terms of this act ? Mr. Cantwell. As I said before, my opinion about it is that it is absolutely necessary, in ©rder to validate any contract in this matter, for affirmative action to be taken by Congress. Mr. Caetee. Then, it will be necessary for this committee to look into the contracts in considering the other matters. Mr. Cantwell. There is no reason why it should not consider whether they should limit the fee or whether they should permit the Secretary of the Interior to limit the fee. (Thereupon, at 12.45 o'clock p. m., the subcommittee adjourned subject to the caU of the chairman.) Subcommittee or Committee on Indian Attaies, House oe Repeesentatives, Tuesday, August 4, 1914. The subcommittee met at 10.30 o'clock a. m., Hon Charles D. Carter ^chairman) presiding. Mr. Caetee. The committee wiU come to order. I think Mr. Hum- phreys wants to be heard this morning. It has not been the policy of the committee to hear individual cases, but as Mr. Humphreys is present we will hear his statement. iSTATEMENT OF MR. GEORGE J. HUMPHREYS, OF ARDMORE, OKLA. Mr. Humpheets. Mr. Chairman and members of the committee, ■first I wish to thank you for this opportunity to appear before your committee on behalf of myself and relatives, the descendants of Ifokhotubbee, in the matter of our right to enrollment in the Choctaw Ifation. I wish also to thank Mr. J. E. Arnold for arranging this hearing for me. Second. As I am appearing without counsel, I will appreciate it, Mr. Chairman, if you or any member of your committee will ask any questions that may occur to you, for in so doing I am sure you will assist me in my effort to present our case. Third. I shall not undertake to discuss the legal technicalities in- volved nor the testimony on file in this case, as I am not a lawyer. Instead I respectfully request you to request the Indian Bureau for a report on our case. Fourth. I wish simply to give a brief synopsis of the case, to file with your committee formally a petition which gives a general out- Enrollmbn-t in the pive civilized teibes. 343 line of the case, and to state that our ancestor, Nokhotubbee, was one of the Choctaws of Mississippi to whom privileges were guaranteed under the provisions of the fourteenth article of the treaty of 1830. Fifth. And his descendants have always been recognized by the Choctaws, both in Mississippi and in the Indian Territory, as mem- bers of the Choctaw Nation. Up until the coming of the citizenship court we held land, voted in the Choctaw elections, had permits issued to our white tenants, our children attended the Choctaw schools, married according to Choctaw law, and were held account- able to the Choctaw laws, two of our number having been arrested and fined for failure to pay permit tax for their tenants, and in every respect they were dealt with and recognized as members of the Choctaw Nation. Mr. Carter. What evidence have you to present to us in support of those statements? Mr. Humphreys. All of it is before the department. Mr. Carter. You ought to bring that in here if you want this committee to hear you. If you want the committee to hear you, you ought to have the evidence and present it in concrete form, because any man who is making a claim, I will say, with all due respect to your veracity, will make his statement of it as strong as possible. The thing we want is the evidence in support of the statement you are malring. If you have any evidence, you should furnish it to the • committee. Mr. Ballinger. Is this the case of G. J. Humphreys ? Mr. Humphreys. Yes, sir. Mr. Ballinger. I will state, Mr. Chairman, that you will find a complete brief of the case and all the facts and testimony set out on pages 404, 421, and 427 of Senate document No. 1139, Sixty-second Congress, third session. Mr. Humphreys. Mr. Chairman, when you have received from the department a full report on our case, I am sure that you will find the facts I have mentioned elucidated and substantiated and that we are Choctaws entitled to enrollment as members of the Choctaw Nation. I wish to file with my statement, Mr. Chairman, the petition that I sent to you. The Chairman. Do you want that printed in the record ? Mr. Humphreys. Yes, sir. (The petition referred to is as follows:) IN KE CLAIM OF GEO. J. HUMPHREYS AND OTHERS FOB ENROLLMENT IN THE CHOCTAW NATION. The petition of Geo. J. Humphreys, of Ardmore, Oklahoma, on his own behalf and for the other descendants of Nockahtubbee, or Hokhotubbe, whose English name was " Billie Bottoms," respectfully shows: Tour petitioner's great grandfather, Nokhotubbee, was guaranteed privileges under the provisions of the fourteenth article of the treaty of 1830 between the United States and the Choctaw Nation, known as the treaty of Dancing Rab- bit Creek ; and said Nokhotubbee, whose English name was Billie Bottoms, moved from Mississippi to the Choctaw Nation, Indian Territory, about the year 1834, and his daughter. Piety Hill, n6e Bottoms, the grandmother of your petitioner, removed from the old Choctaw Nation east of the Mississippi to the nation west, in the Indian Territory, about the year 1848. 344 ENROLLMENT IN THE FIVE CIVILIZED TEIBES. And your petitioner furtlier states that his family were admitted to citizen- ship in the Choctaw Nation by the Choctaw Council ini 1S87, under application made by Louis Hill for himself and other members of your petitioner's family. Tour petitioner further states that by judgment of the United States dis- trict court for the central district. Judge W. H. H. Clayton presiding, in the case of Louis Hill et al., your petitioner and his family were enrolled as citi- zens of the Choctaw Nation by blood ; and that by judgment of the United States court for the southern district of the Indian Territory, Judge Townsend presiding, in the case of Z. T. Bottoms et al., other descendants of Nokhotubbee, or Billie Bottoms, were admitted to citizenship as citizens by blood of the Choctaw Nation. Tour petitioner further states that in 1904 that peculiarly constituted court known as the Choctaw-Chickasaw citizenship court vacated the judgment of the United States district courts, and ordered that the name of your petitioner and the names of his relatives, the descendants of Nokhotubbee, be not placed upon the final rolls of the Choctaw Nation of Indians. And your petitioner states that although the adding of their names to the Choctaw rolls at this time will not afford the applicants the complete justice to which they are entitled, because the lands upon which they had erected Improvements have been wrested from them and otherwise disposed of, they respectfully petition that their names be added to the rolls of citizenship of said nation. Furthermore, your petitioner respectfully requests that the foregoing mat- ters may be investigated, and that the names of the descendants of Nokhotubbee, whose English nqime was Billie Bottoms, may be ordered placed on the final rolls of the said Choctaw Nation as citizens by blood. Geo. J. HuMPHBETS. United States op America, District of 'Columbia, ss: Personally appeared before me this, the 17th day of July. 1914, Geo. J. Hum- phreys, who, being duly sworn on oath, deposes and says that he has read the foregoing petition by him subscribed and that the facts therein are true. [SEAL.] Edmund Oabjeinston, Notary PuUic, D. C. My commission expires March 8th, 1916. Mr. Sin^LrvAN. Mr. Chairman, Mr. Ballinger has oflFered the sug- gestion that the testimony in Mr. Humphrey's case appears in that Senate document. Why can not the committee consider that testi- mony in connection with that matter. Mr. Caeteb. We have a copy of that Senate document with the record in it, and Mr. Campbell is now looking over it. Mr. Hum- phreys, in your statement to me, if I remember correctly, I believe you stated that your enrollment was ordered by the Chpotaw Couocil. Mr. Humphreys. That was in 1887. Mr. Carter. Have you a copy of the act ordering your enrollment? Mr. Humphreys. No, sir; nothing more or less than an affidavit from John Hodges, and what my Uncle Lewis told me and what members of the council told me. Mr. Carter. There ought to be a record of that. Mr. Ballinger. I think you will find whatever record there is in Senate document No. 1139, Sixty-second Congress, second session, pp. 396-419. Mr. Humphreys. At that time I was a young fellow. Mr. Hurley. When did you or your people come from Mississippi to the Choctaw and Chickasaw Nation? Mr. Humphreys. They came on here from 1S34 down to 1890. Some came at one time and some at another. Mr. Hurley. Where were you living in 1898? Mr. Humphreys. I was digging coal down close to where you were. Mr. Hurley. Where were you in 1902 ? ENKOLLMENT IN THE FIVE CIVILIZED TKIBES. 346 Mr. Humphreys. I was 6 miles ^est of Ardmore in 1902. Mr. HuELEr. In the Chickasaw Nation? Mr. Humphreys. Yes, sir. Mr. Hurley. Did you make application to the Dawes CommiB- ;Biission for enrollment as a citizen of the Cchoctaw Nation? Mr. Humphreys. Yes, sir. Mr. Hurley. Was your application passed upon by the Dawee Commission ? _ Mr. Humphreys. It was denied. If I understand it right, it was jsimply written across the back of it. Mr. Hurley. You do not know upon what ground you were denied citizenship ? Mr. Humphreys. No, sir. Mr. Hurley. Did you appeal from that decision ? Mr. Humphreys. Yes, sir. Mr. Hurley. To what court did you appeal ? Mr. Humphreys. To Judge Clayton's court. Mr. Hurley. Was your case tried in Judge Clayton's court.? Mr. Humphreys. Yes, sir. Mr. Hurley. Were you admitted to citizenship or denied citizen- ship in that court? Mr. HusiPHREYS. I was admitted. Mr. HuELET. Was your eiji^e ever tkereafterwards considered by the Dawes Commission? Mr. Humphreys. Well, I djo i^,ot know whether it was or not. We reopened our case. After the citizenship court knocked us out we reqpened our case at Muskogee. Mr. Hurley. The decision in your favor by the United States court was set' aside in the case of the Choctaw and Chickasaw Nations against Riddle etal., was it not? Mr. Humphreys. I do not know. Mr. Bauc^ingee. AH tbe cases were set aside, and the judgments of the United States court by the general decree of the citizenship court in the case of the Choctaw a Mr. Carter. Do you know whethe^ there was anyone else present except the members of the society ? .' Mr. CoNEELY. If so, I djd not know it. Mr. Hurley. Are the proceedings of that organization conducted in English or Choctaw ? Mr. CoNERLY.-Jn FZnglish. Mr. HuRT'iT. You can not state to the committee approximately ■ nO'