Questions and Additional Report

Mr. Burke. As I understand, this only involves the question as to who will have enrollment among the Choctaws, and does not touch the people in Oklahoma who are clamoring to get on the roll. I was asking a question.

The Chairman. This matter is only tentative, as I understand it, and permits the Secretary of the Interior to report to the next Congress as to what should be done.

Mr. Ferris. I want to ask merely one question with reference to his report, not as to the subject matter but as to the form. Did some one state here a moment ago that you had reduced your report to writing?

Mr. Miller. Only that which I began before the committee orally the other day.

Mr. Ferris. Will that be a part of this record?

Mr. Miller. It can be if it is ordered.

Mr. Ferris. I am tremendously anxious to have that and go through it myself.

The Chairman. You remember we had no stenographer present. Afterwards we had a stenographer.

Mr. Ferris. I understand that was dictated as far as it goes, and this will go on the end of that. Will that be turned over to this reporter, so that your whole statement can be given together?

The Chairman. Yes; that will be done.

Mr. Miller. At the last hearing of our committee I endeavored to develop why the members of the subcommittee thought that large numbers of Choctaws who reside in Mississippi were defeated of their rights by the acts of the official agent of the United States Government. Having demonstrated to our satisfaction that there were a large number of Indians who were defrauded, then the next consideration was what steps have been taken by the United States to compensate them for the injuries sustained, and the natural and consequent inquiry, did the steps taken measure and meet the injuries that had been created? I just started to call attention to the fact that in 1842, after the second investigation on the part of Mr. Ward with respect to ascertaining the number of Choctaws who desired to avail themselves of article 14 of the treaty of 1830, Congress, in order to compensate them for the injury which had resulted, decided to give the Indians who had been injured scrip in lieu of the land which could no longer be given to them. By the provisions of the act one half of the scrip was to be given immediately to the heads of families, and the other half to be withheld until such time as these Indians had moved and taken their residence on Choctaw lands west of the Mississippi River. They actually did give the first half of the scrip to the Indians and their families.

Mr. Ferris. How many?

Mr. Miller. I can only answer that by saying that when they came to fund the scrip which they did not give them they estimated the number at 1,155 heads of families, which represented probably about 4,000 or 5,000 Indians. You understand 143 heads of families actually received patents to lands under article 14 of the treaty, and 143, added to 1,155 would give the approximate number of heads of families Who desired to wail themselves of the benefits of article 14 of the treaty. Only 143 actually succeeded.

A few years after 1842 a desire was manifested to dispose of the scrip question, and it became apparent that these Indians were not going in large numbers to occupy the land west of the Mississippi, and did not go to any complete extent, though quite a large number did go, and the Government decided to fund the unpaid one-half of the scrip at $1.25 an acre, and appropriated therefor the sum of $872,000. This was in 1852 and to my mind the language of the act is quite significant and, as it is so, I would be glad to read it to the committee.

By a previous arrangement between the Indians and the Government it was provided there should be paid annually interest on the amount of scrip that bad not been actually handed to the Indians. This was an arrangement by which the Indians were to get some benefit from the unpaid part of the scrip. They paid that in 1852, but decreed thereafter that they would not pay it but discharge the whole obligation by a lump sum. The language of the act is as follows:

For interest on the amounts awarded Choctaw claimants under the fourteenth article of the treaty of Dancing Rabbit Creek of the 27th of September 1830, for lands on which they reside, but which is impossible to give them, in lieu of the scrip that has been awarded under the act of the 23d of August 1842, not deliverable east by the third section of said law, per act of the 3d of March 1845, for the half year ending the 30th of June 1852, $21,800: Provided. That after the 30th day of June 1852, 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 exceeding $872,000: Provided further. That the final payment and satisfaction of said awards shall be first ratified and approved as the final awards 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.

Now, the words, “If they receive the $872,000 thereby appropriated a release in full of all claims, individual or national, shall be given to the United States Government,” are of the utmost importance. That was in 1852. I will say that this $872,000 was paid to the Indians, as near as I can make out; at least the Court of Claims, when the case was before them, so found.

The Chairman. Was that required to be paid per capita or to them as a band?

Mr. Miller. That was an inquiry that I spent a great deal of time on and not until recently could I reach a decision: I have made out that it was paid per capita.

Mr. Carter. Was that paid to the Choctaws in Oklahoma or the Choctaws in Mississippi, or any division of it?

Mr. Miller. Paid to all of them.

Mr. Carter. All together

Mr. Miller. Yes, sir.

Mr. Carter. Was it paid per capita? You .say your belief is that they were paid per capita.

Mr. Miller. I will read What the Court of Claims said. Besides everything indicates that the appropriating act contemplates that it be paid per capita.

The Chairman. What page is that?

Mr. Miller. Page 18 of 119 United States Reports. It is as follows:

This scrip, which was funded for the benefit of said Choctaw heads of families and their children, under the act of Congress of March 3, 1845, was funded by the United States at the rate of $1.25 an acre, amounting to the sum of $872,000 which sum was paid to the said heads of families and their children, or their legal representatives, under the provisions of an act of Congress approved July 21, 1852.

Mr. Burke. What was involved in that case?

Mr. Miller. This is the great Choctaw case.

Mr. Carter. Is that ”Choctaw Nation v. United States”?

Mr. Miller. Yes sir.

The Chairman. Please give the style of the case.

Mr. Miller. The style is “Choctaw Nation v. United States.” (119 U. S., p. 18.)

The Chairman. Proceed, Mr. Miller.

Mr. Miller. And yet the matter was not disposed of. In 1855, still being undisposed of and the Indians claiming that they had not been properly benefited, a treaty was entered into between the Choctaw Nation and the United States.

From this point on it must be borne in mind that the Choctaw Nation as such was an organized body west of the Mississippi River. When we started out the main body of Choctaws were in Mississippi, but gradually migration has been taking place until the main body of the nation is located west of the Mississippi River, and all official acts of the nation are performed by the officially organized Choctaw Nation west of the Mississippi River. And probably it is only fair to state that while the Choctaw Nation west on every occasion and at all times manifested entire friendliness to the Choctaws east, and often invited them out to the west and to share the western wealth with them, yet it does not appear that they ever considered or took into consultation with them those Choctaws in Mississippi. In other words they assumed to act for their own benefit largely. 1855 the Choctaw Nation and the United States entered into another treaty containing many provisions, but one of which is important.

Mr. Burke. I do not want to disturb your argument, but you stated a moment ago that you were going to read something that the National Council did and before they heard from the Court of Claims.

Mr. Miller. I am going to come to that later.

Mr. Burke. All right.

Mr. Miller. In 1855 the treaty made between the Choctaws and the United States Government agreed that the whole matter should be submitted to the United States Senate as a court of arbitration to take into consideration all claims, individual and national, that the Choctaws had against the United States, they to make a thorough investigation and report, which should be final and complete. The United States Senate did proceed and did have extended hearings on the matter, and in 1859 made a finding. I think we ought to read that finding. Perhaps it would be wise to put into the record the provisions of the treaty under which this was submitted to the United States Senate.

Article 11 of the treaty provides:
The Government of the United States not being prepared to assent to the claim set up under the treaty of September 27, 1880, and so earnestly contended for by the Choctaws as a rule of settlement but justly appreciating the sacrifices, faithful services, and general good conduct of the Choctaw people, and being desirous that their rights and claims against the United States shall receive a just, fair, and liberal consideration, it is there for stipulated that the following questions be submitted for adjudication to the Senate of the United States:

First. Whether the Choctaws are entitled to or shall be allowed the proceeds of the sale of the lands ceded by them to the United States by the treaty of September 27, 18.30, deducting there from the cost of their survey and sale, and all just and proper expenditures and payments under the provisions of said treaty, and if so, what price per acre shall be allowed to the Choctaws for the lands remaining unsold, in order that a final settlement with them may be promptly effected; or

Second. Whether the Choctaws shall be allowed a gross sum in further and full satisfaction of all their claims, national and individual, against the United State: and if so, how much.

Article 12. In case the Senate shall award to the Choctaws the net proceeds of the lands ceded as aforesaid the same shall be received by them in full satisfaction of all their claims against the United States, whether national or individual, arising under any former treaty

Now this, gentlemen, is the particular treaty stipulation of importance

and the Choctaws shall thereupon become liable and bound to pay all such, individual claims as may be adjudged by the proper authorities of the tribe to be equitable and just-the settlement and payment to be made with the advice and under the direction of the United States agent for the tribe: and so much of the fund awarded by the Senate to the Choctaws, as the proper authorities thereof shall ascertain and determine to be necessary for the payment of the just liabilities of the tribe, shall, on their requisition, be paid over to them by the United States. But should the Senate allow a gross sum in further and full satisfaction of all their claims, whether national or individual, against the United States, the same shall be accepted by the Choctaws, and they shall thereupon become liable for and bound to pay all the individual claims as aforesaid, it being expressly understood that the adjudication and decision of the Senate shall be final.

In other words, it is contemplated in this treaty that if the Senate awards a lump sum, after hearing all the evidence, both as to claims of individuals and the nation, a lump sum shall be awarded to the Choctaw Nation, and then the Choctaw Nation as an entity in itself shall become liable to the individuals for the individual claims which form part of the whole.

Mr. Burke. Was that treaty made with all the Choctaws?

Mr. Miller. It was made with the Choctaw Nation. As I have figured it out it consisted of the Choctaws West. The Choctaws in Mississippi were never consulted, as far as I can find, or became parties to any treaty with the United States after September 27, 1830.

The Chairman. When was that treaty made?

Mr. Miller. In 1855.

The Chairman. In the Five Civilized Tribes of Oklahoma?

Mr. Miller. Yes sir it was in 1855 some time, I can not give the exact date.

As a result of the United States Senate sitting as a court of arbitration and hearing the matter from beginning to end, on the 9th of March 1855, they made their finding as follows:

Resolved, That the Choctaws be allowed the proceeds of the sale of such lands as have been sold by the United States on the 1st day of January last deducting there from the costs of their survey and sale and all proper expenditures and payments under said treaty, excluding the reservations allowed and secured, and estimating the scrip issued in lieu of reservations at the rate of $1.25 per acre: and, further, that they be also allowed 12½ cents per acre for the residue of said lands.

That was the decision of the United States Senate. They at the same time called upon the Secretary of the Interior to make a statement of account showing the quantity of land sold, the amount for which it had been sold, also showing the amount unsold.

Mr. Carter. And was this the Senate which you are speaking of now?

Mr. Miller. Yes, sir I am speaking of the Senate. Now, for the benefit of some who were not here the other morning when Mr. Russell and I discussed this, it might be well to state that for the lands ceded by the treaty of 1830 consisting of a little over 10,000,000 acres in the State of Mississippi, no specific consideration was stated in the treaty itself.

Mr. Stephens of Nebraska. This is the first price made on the land; this Senate act of 1855?

Mr. Miller. Yes, sir. Now under the direction of the Senate the Secretary of the Interior did state a complete account, and in that it was found that adding together all proceeds derived from sales theretofore made, and estimating the amount unsold at 12½ cents an acre, the aggregate sum was $8,070,614.80. Now, they had a whole lot of charges against that for removal, cost of subsistence, cost of selling, and other charges, which aggregated $5,097,367.50, leaving a residue or balance due to the Choctaws of $2,981,247.30.

Mr. Burke. Were they charged for the $782,000 that was paid them?

Mr. Miller. Yes, sir: that comes in just a minute. Now, the Senate of the United States at once appropriated $250,000 as the first payment on this $2,981,247.30, and I will say that on that $2,981,247.30 interest was to be paid. The act of March 2, 1861, the Indian appropriation act, provided for an issue of $250,000 in bonds as a part payment on this balance due the Choctaws. At this time the war broke out. The Choctaws and other Indians were on different sides, and naturally all interest stopped. All that was paid was this sum of $250,000. The bonds were never issued.

That remained until 1881, when, by act, this was sent to the Court of Claims. By this I mean the entire claims of the Choctaws against the United States, and it was fought out there, and the Court of Claims came to this decision, that inasmuch as the Choctaw Nation and the Choctaw individuals received and accepted $872,000 under the terms of the appropriation act of 1852, and executed therefor a release in full to the United States, they could not adjudicate or award any claim in damages to the Choctaws by reason of the items that were included in the $872,000: that is, growing out of the lands. (Choctaw Nation v. United States. No. 12742. Court of Claims.)

“When appealed to Supreme Court it became Choctaw Nation v. U. S., 119 U. S., 1.)

Now it will be appropriate to see the exact nature of the Choctaw national act.

Mr. Stephens of Nebraska. In other words, the Court of Claims repudiated the action of the Senate?

Mr. Miller. I have not come to that yet. I will in a moment.

The Choctaw Nation, by its proper authorities, on November 6, 1852, executed and delivered to the United States the following instrument- under the provisions of the act to which I called attention and quoted from, the act of July 21, 1852-for the purposes therein specified:

Whereas by an act of Congress entitled “An act to supply deficiencies in the appropriations for the service of the fiscal year ending the 30th day of June 1852.” all payments of interest on the amount awarded Choctaw claimants under the fourteenth article of the treaty of Dancing Rabbit Creek for lands on which they resided, but which it is impossible to give them, shall cease, and that the Secretary of the Interior be directed to pay said claimants the amount of the principal awards in each case, respectively, and that an amount necessary for this purpose be appropriated, not exceeding the sum of $872,000; and that 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: Now be it known that the said general council of the Choctaw Nation do hereby ratify and approve the final payment and satisfaction of said awards, agreeably to the provisions of the act aforesaid, as a final release of the claims of such parties under the fourteenth article of said treaty.

It is fair to state that the Senate of the United States thought that in equity and justice to the Indians that should not be a bar. In other words, they rescinded that ”satisfaction and release.”

Mr. Burke. This treaty that authorized that arbitration was ratified, was it not?

Mr. Miller. Yes, sir.

Mr. Burke. Then that became a law?

Mr. Miller. Yes, sir; but that has not been carried out yet. We have shown that the treaty of 1855 provided that whatever award was provided or received or given to the Choctaw Nation, if it was a lump sum, then the Choctaw Nation should be responsible to the individuals whose claims were included, but they never got that award under the treaty of 1855.

Mr. Burke. But you misunderstand my point. They did, by the action of their council, accept and receive the sum of $872,000, which was to be in full of all claims or demands that they might have against the United States. Now, subsequently the tribe entered into a compact with the United States by which it was agreed to arbitrate the matter in the Senate, notwithstanding this final settlement. Then that became the law when that treaty was made?

Mr. Miller. Yes: I understand what you mean now. If you will just let me finish I am sure that I can get through with my part shortly, and I am sure that I will have answered many of these natural inquiries.

The case was appealed to the United States Supreme Court, and finally decided. The United States Supreme Court held, among other things, that the award of the Senate in 1859 was probably the most satisfactory, the most equitable, and the most just award that could be made, having regard to the elapse of time and the other difficulties of securing exact information.

They held that the Court of Claims was wrong in holding the award in 1852 as an estoppel; that it was not an estoppel against them for the reasons which they set forth at length, wherein they discussed what should be the attitude of a strong nation toward a weak one in making and executing contractual arrangements. The language of the court is as follows:

As was said by this court recently in the case of the United States v. Kagama (118 U. S., pp. 375. 383): “These Indian tribes are the wards of the Nation; they are communities dependent on the United States; dependent largely for their daily food; dependent for their political rights. They owe no allegiance to the States and receive from them no protection. Because of the local ill feeling the people of the States where they are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the course of dealing of the Federal Government with them, and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recognized by the Executive and by Congress and by this court whenever the question has arisen.”

It had accordingly been said in the case of Worcester v. Georgia (6 Pet., pp. 515, 582): “The language used in treaties with the Indians should never be construed to their prejudice. If words be made use of which are susceptible of a more extended meaning than their plain import, as connected with the tenor of the treaty, they should be considered as used only in the latter sense. * * * How the words of the treaty were understood by this unlettered people, rather than their critical meaning, should form the rule of construction.”

The recognized relation between the parties to this controversy, therefore, 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 that inequality is to be made good by the superior justice which looks only to the substance of the right without regard to technical rules framed under a system of municipal jurisprudence formulating the rights and obligations of private persons equally subject to the same laws.

The rules to be applied in the present case are those which govern public treaties, which, even in case of controversies between nations equally independent, are not to be read as rigidly as documents between private persons governed by a system of technical law, but in the light of that larger reason which constitutes the spirit of the law of nations. And it is the treaties made between the United States and the Choctaw Nation, holding such a relation, the assumptions of fact and of right which they presuppose, the acts and conduct of the parties under them, which constitute the material for settling the controversies which have arisen under them. The rule of interpretation already stated, as arising out of the nature and relation of the parties, is sanctioned and adopted by the express terms of the treaties themselves. In the eleventh article of the treaty of 1855 the Government of the United States expresses itself as being desirous that the rights and claims of the Choctaw people against the United States “shall receive a just, fair, and liberal consideration.”

And the United States Supreme Court cut the matter short by making identically the same award in 1889 that the Senate had made just 30 years before. Now, it must be. I think, entirely agreed that the treaty of 1855 was the foundation for this ultimate award.

I have asked for the exact amount that was paid, but the Interior Department has not yet given it to me. Anyhow it was $2,981,247.30 plus some interest. It must be agreed that the basis for that was the treaty of 1855, and on account of the changed conditions of things that occurred during the next 30 years we must look back to that as the origin. So that in passing on the payment of this larger sum, we must have regard to article 12 of the treaty of 1855. In other words, the United States paid this money to the Choctaw Nation (West), and no one has yet been able to find that any Choctaw Indians (East) or Mississippi Choctaw ever got any of it. To my mind that is of the utmost importance in this case. If the Choctaw Indians agreed solemnly by the treaty of 1855 that if a lump sum were awarded they would become responsible to the individuals on account of claims, and they received that lump sum, both in law equity, and justice there still remains to be adjudicated between the Choctaw Nation and the wronged individuals the rights of the wronged individuals. Now, that may seem a trifle harsh to the Choctaw Nation (West), but I hope it will not, because they have manifested from every standpoint the most friendly attitude, and it might be well, perhaps, to call the attention of the committee to a few things that I discovered that exhibit that attitude. For instance, at the close of the war in 1800, when the United States entered into a treaty to restore to them their rights, very generously and properly this provision was inserted-to wit. article 45 of the treaty of July 10, 1866:

All the rights, privileges, and immunities have to for possessed by said nation or individuals thereof or to which they were entitled under the treaties and legislation heretofore made and had in connection with it shall be and are hereby declared to be in full force, so far as they are consistent with the provisions of this treaty, to the end that such Choctaws and (Chickasaws as yet remain outside of the Choctaw and Chickasaw Nation may arbitrarily remain and exercise rights heretofore given to the 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 intentions or the intention of the party for whom the selection is to be made, to become bona tide residents of the said nation within five years of the time of selection, and should 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 accounts thereof.

That simply looks to the removal of those. Here is another portion of that same treaty, where it provides that a certain notice required in one article ” shall be governed not only in the Choctaw and Chickasaw Nations (as notice to the Choctaws that they can go and take their lands and get their rights), 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 Choctaw and Chickasaw Nations may be informed and have opportunity to exercise the rights hereby given to representative Choctaws and Chickasaws.” Then follows that portion which I have just read.

Again, in 1880, the Choctaw Nation, by its regular legislative body, sent this to the United States Congress. It was never transmitted to or reached the Mississippi Choctaws, but it shows the proper attitude on the part of the Choctaw Nation. It is as follows:

Whereas there are large numbers of Choctaws yet in the States of Mississippi and Louisiana who are entitled to all the rights and privileges of citizenship in the Choctaw Nation; and

Whereas they are denied all rights of citizenship in said Stales; and

Whereas they are invited to migrate 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 migration of said Choctaws from the said States to the Choctaw Nation. The national secretary is hereby instructed to furnish a certified copy of this memorial each lo 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.

B. F. Smallwood, Principal Chief, Choctaw Nation

Then we come to the enrolling of the Choctaws and other Indians in Oklahoma, looking to the allotment of their lands and opening up of the surplus lands to white settlers.

The Dawes Commission went to Oklahoma in the early nineties, and in 1896 they started to make the roll, and without any specific request to do so they seemed to feel that it was a part of their duty to look after the Mississippi Choctaws. They made a report on January 28, 1898, which is the first report they made covering the Mississippi Choctaws. In that they said:

It follows, therefore, from this reasoning, as well as from the historical review already recited, and the nature of the title itself, as well as all stipulations concerning it in the treaties between the United States and the Choctaw Nation, that to avail himself of the “privileges of a Choctaw citizen” any person claiming to be a descendant of those Choctaws who were provided for in the fourteenth article of the treaty of 1S30 must first show the fact that he is such descendant, and has in good faith joined his brethren in the Territory, with the intent to become one of the citizens of the nation. Having done so, such person has a right to be enrolled as a Choctaw citizen and to claim all the privileges of such a citizen, except to a share in the annuities. And that otherwise he can not claim as a right the “privilege of a Choctaw citizen.”

To the claim, as thus defined, the Choctaw Nation has always acceded, and has manifested in many ways its willingness to take into its citizenship any one or all of the Mississippi Choctaws who would leave their residence and citizenship in that State and join in good faith their brethren in the Territory, with participation in all the privileges of such citizenship, swe only a .share in their annuities, for which an equivalent has been given in the grant of land and citizenship in Mississippi.

That lays down the rule which they should follow in enrolling Choctaw citizens, namely, only those who receive benefits under article 14 of the treaty of 1830 and who had removed.

The Chairman. What is the date of the act?

Mr. Miller. This was a report of the Dawes Commission. January 28, 1898.

Following this elaborate report, which covered a great many matters in connection with the Five Civilized Tribes, the Curtis Act was Framed and passed June 28, 1898. This contained two sections relating to the Mississippi Choctaws. They are 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. That relates to all Indians of all tribes: Provided, however. That nothing contained in this act shall be so construed as to militate against any right or privileges which Mississippi Choctaws may have under the laws or treaties of the United States.

In other words, there is a specific reservation in favor of the Mississippi Choctaws so far as the necessity of removal and settlement is concerned.

Mr. Warburton. Does that refer also to the Choctaws in Louisiana? There are thousands of Choctaws there.

Mr. Miller. Yes, sir: it referred to those in Mississippi and Louisiana alike.

The next section reads as follows:

Said commission shall have authority to determine the identity of Choctaw Indians claiming rights in the Choctaw lands under article 34 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 report to the Secretary of the Interior.

There is the specific instruction to the Dawes Commission to proceed to enroll Mississippi Choctaws. As a result thereof they sent one of their members by the name of McKinnon into the territory east of the Mississippi, wherein reside these Choctaws. In the following year, 1899, Mr. McKinnon made his report, accompanied by rolls containing the names of 1,922 Choctaws whom he had identified as Indians who were descendants of those who had received or were entitled to receive benefits under the provisions of article 14 of the treaty of 1830.

Mr. Burke. Mr. McKinnon was of the commission, was not he?

Mr. Miller. Yes, sir.

Mr. Ferris. He is in town here now.

Mr. Miller. It might be only fair to say that the Dawes Commission, in determining these cases, except when otherwise specifically directed by act of Congress, has held that any Choctaw was entitled to the full rights of Choctaw citizenship who was a descendant of one who secured a patent of land under article 14, or who had an ancestor who had that right and was defrauded out of it by the action of Col. Ward.

Mr. Carter. That left out the question of residence?

Mr. Miller. I am not speaking of residence now; I am speaking of identity. Now, it will be noticed that under the Curtis Act there is no authority to enroll. The authority is to identify. So Mr. McKinnon’s roll identified 1,922 Indians as being identified as Choctaws and entitled to citizenship, but without any authority to enroll and of course, did not.

Mr. Konop. They never were enrolled, these 1,922?

Mr. Miller. Some of them were.

Mr. Burke. If these 1,922 had moved over into the Choctaw Nation (West) within a certain time, they might have been enrolled, might not they?

Mr. Miller. Yes, sir; probably would have been. A great many of them were, because they did remove some time after that.

Mr. Ferris. Is not it true that a great many of them did? Did not that investigation disclose that a great many of them did and were enrolled?

Mr. Miller. Yes, sir.

Mr. Carter. Did you find out how many?

Mr. Miller. I can find how many. They enrolled altogether 1,445 Mississippi Choctaws. In addition thereto, 198 new borns were enrolled under the act of March 3, 1905 and April 26, 1906, providing for enrollment of new borns. A part of these enrolled are also on the McKinnon roll. I have here the McKinnon roll, and by checking it can be ascertained how many were actually enrolled as Choctaws.

The Chairman. There was an appropriation made of $20,000 by one of those acts for purpose of enabling the Mississippi Choctaws to cross the Mississippi River from Mississippi to Oklahoma?

Mr. Miller. Yes, sir; 297 were removed before they exhausted the appropriation. The act of May 31, 1900 with further reference to this matter, states as follows:

That said commission shall continue to exercise all authority heretofore conferred on it by law. But it shall not receive, consider, or make any record of any application of any person for enrollment as a member of any tribe in Indian Territory who has not been a recognized citizen thereof and duly enrolled or admitted as such, and its refusal of such applications shall be final when approved by the Secretary of the Interior: Provided. That any Mississippi Choctaw duly identified as such by the United States Commission to the Five Civilized Tribes shall have the right at any time prior to the approval of the final rolls of the Choctaws and the Chickasaws by the Secretary of the Interior to make settlement within the Choctaw-Chickasaw country, and on proof of the fact of bona tide settlement may be enrolled by the said United States commission and by the Secretary of the Interior as Choctaws entitled to allotment: Provided further. That all contracts or agreements looking to the sale or encumbrance in any way of the lands to be allotted to said Mississippi Choctaws shall be null and void.

I call special attention to those acts as they show that the necessity of removal into this new country west was essential to enrollment or being recognized as entitled to the benefits of Choctaw citizenship.

Mr. Smith. Before you get away from that point, have you the figures showing the number of applications to the Dawes Commission for identification by the United States, showing how many they refused to identify as Mississippi Choctaws?

Mr. Miller. Yes, sir; I can give those exact figures. The report of the Commissioner to the Five Civilized Tribes in 1907, which was after the rolls were closed, shows that 24,634 persons applied to the Commission to the Five Civilized Tribes for identification. Of these 2,534 were identified and their names were placed upon schedules and forwarded to the Secretary of the Interior. As above stated. 1,44.5 only were really enrolled.

Mr. Stephens of Nebraska. There were 24,634 that applied?

Mr. Miller. Yes sir. Then we come to the last act of Congress that has any importance and particular bearing upon this matter. That is the act of 1902 which some of the committee have become very familiar with. That is what some call the McMurray Act. Article 41 provides as follows:

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 (80 Stat., 495), as Mississippi Choctaws entitled to benefits under article 34 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 settlement to such commission within one year after the date of the said identification as Mississippi Choctaws shall be enrolled by such commission as Mississippi Choctaws entitled to allotment as herein provided for citizens of the tribes, subject to special provisions herein provided, as to Mississippi Choctaws and said enrollment shall be final when approved by the Secretary of the Interior.

In other words, that provision says that to become enrolled they would have to remove, and they were given six months in which to do it after the date of their identification.

Then it goes on in this most remarkable language:

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 Choctaw Indians, whether of full-blood or mixed blood, who received 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 treaty of September 27, 1830, and to identification as such by said commission, but this direction of 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 Mississippi Choctaw who received a patent to land under said treaty, or who is otherwise barred from the rights of citizenship in the Choctaw Nation. All of said Mississippi Choctaws so enrolled by said commission shall be upon a separate roll.

The more often one reads that the greater wonder grows in his mind as to exactly what was intended. I read it, I think. 20 times before I could get it into my head exactly what I thought it meant.

Mr. Ferris. Give us your interpretation of it.

Mr. Miller. Well, to speak somewhat frankly. I think if a man stood on his head and looked cross-eyed at it he could get it first lick. To boil it down it means this: It means that any full-blood Choctaw, who can prove that he is a full-blood Choctaw, by that proof establishes his identity; that is, it is not necessary that he go back to trace his ancestry. It is not necessary that he show that he ever had an ancestor who was entitled to share in the benefits of article 14 of the treaty of 1830.

Mr. Ferris. You mean that he proved that without going back into his ancestry?

Mr. Miller. Yes, sir. Now, it may be pertinent to inquire how an Indian can prove he is a full blood without going back to his ancestry. But he would not have to trace his ancestry back to 1830. That is the first class. In the second class it provides that all mixed bloods who can prove that they are descendants from an ancestor who received, or were entitled to receive, patents under article 14 of the treaty of 1830, are entitled to identification as Mississippi Choctaws. In other words, the burden of proof of ancestry back to 1830 is put upon the mixed bloods and not upon the full bloods. It is only fair to say that in view of what has just been stated that it is not an entirely difficult matter to detect a full blood. One who is seven-eighths or a full blood looks very much different from one who is three-fourths, and by simply looking at the applicants they could come pretty close in determining a great many cases, but so far as I can make out no Indian was ever enrolled under this section.

Now that looks like a good piece of sweet, fresh meat. It looks like doing something for the benefit of those Indians, but it required that they make application within six months and remove to the Indian country. You might just as well tell me that I could have an allotment in the moon if I would go to it as to tell a great many of those Indians that they could have an allotment and benefit of citizenship in some land out in the West. In other words, it did not take into consideration, if it was designed to aid those Indians, their poverty, their ignorance, their superstition, and all the other elements that these Indians possess, and so it is not surprising that no Indians ever enrolled under this section so far as I can find.

Further provisions of the treaty of 1902, regarding Mississippi Choctaws are as follows:
Entire Agreement with Choctaws and Chickasaws, approved by Congress July 1, 1902, and ratified by Choctaws and Chickasaws September 25, 1902 (32 Stat. L., 641)

42. When any such Mississippi Choctaw shall have in good faith continuously resided upon the land of the Choctaw and Chickasaw Nations for a period of three years, including his residence thereon before and after such enrollment, he shall, upon due proof of such continuous, bona fide residence, made in such manner and before such officer 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 Commission to 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 agents duly authorized thereunto by power of attorney, in the discretion of said commission.

44. If within four years after such enrollment any such Mississippi Choctaw, or his heirs or representatives if he be dead, fails to make proof of such 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 enrollment, 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 distributed per capita with other funds of the tribes. Such lands shall not be sold for less than their appraised value. Upon payment of the full purchase price patent shall issue to the purchaser.

Mr. Smith. A great many made application? Mr. Miller. A great many made application-enormous numbers of them-but I can not find that any of them were ever enrolled.

Mr. Carter. I just wanted to ask if Mr. Miller thought some invitation had not been held open to the Mississippi Choctaws, as far, Mr. Miller, as your investigation goes?

Mr. Miller. Yes there is no question about it. I will say the Choctaw people west have acted in the most friendly and fraternal way.

Mr. Carter. Now, then, was this six months’ provision put in there so that there might be a time when the thing should end and the division of the property could become final? Don’t you think that was the intention of the McMurray Act?

Mr. Miller. I will say that that probably was the intent that appeared to this committee, in 1902, when it passed upon the provision favorably, but I wall say further, if the committee had investigated the situation carefully it would have been convinced that to benefit the people it aimed to benefit it must have made an appropriation to take them where they had to go; but that appropriation was never made.

Mr. Russell. Don’t you understand that the act he is referring to there intended to cut out everybody who had not actually received a patent, or maybe their descendants?

Mr. Miller. I think probably that was the intent of McMurray and the tribe.

In this connection it is proper to say that quite a number of Indians were identified under this section as Mississippi Choctaws, but the identifications came too late for them to remove or to set the benefit of enrollment. There are 10 families. I think about 50 persons, involved. Of course their rights remain as they were when identified; they were and are entitled to enrollment, but not enrolled.

Now, to summarize on this matter of enrollment. Of course the Dawes Commission was discontinued in 1907 as to enrollment matters. There were something like over 24,000 all told, who made application and desired to submit proofs. Of that 24.000, 2,534 were identified in one way or another as entitled to the rights of Choctaw citizenship. Of that number 1,445 were actually enrolled, leaving about 1,100 who have been identified as entitled to the rights of Choctaw citizenship, but have never been enrolled, and for that reason have never received those benefits.

Mr. Burke. And did not remove?

Mr. Miller. Not all of them removed. Most of them did not. A few did.

Mr. Konop. None of them removed?

Mr. Miller. Yes; some of these 1,100 actually removed, and some when removed were ejected by officers of the Choctaws and Chickasaws because they were “interlopers.” Some remained in the new country but were never enrolled. Others drifted away. I think Mr. Carter knows there are some Choctaws in Oklahoma belonging to this 1,100.

Mr. Carter. I think there is a great deal in this six months proposition just stated. For instance, they proposed that a man should be identified in six months, gave him six months to be identified in, and then required his residence within six months?

Mr. Miller. Yes, sir.

Mr. Carter. Now, then, a man might very easily be identified at the end of six months and still not be able to go to Oklahoma.

Mr. Miller. Yes; exactly so and I will say that by legal opinions here in the Department of Justice, which we have not gone into at all, by conflicting opinions from the Attorney General’s office, some of these Indians were on and then they were off. The committee is familiar with the case of the Nichols family.

Now to conclude, the question that we of the subcommittee were ourselves obliged to agree on, and did easily agree on, was that by the acts of the agent of the United States, Col. Ward, a serious injury and property damage was inflicted upon a large number of Choctaws who remained in Mississippi. They have never surrendered any claim, so far as I can disclose, that they had by reason of that injustice. They have never been compensated for that injury. They have received some benefits, such as would come from the acceptance of this scrip and from the enjoyment of the proceeds of the $1.25 au acre. It is not clear just exactly who got this $1.25 an acre, but apparently it was distributed among these Indians. Of course the amount they received was grossly inadequate compared with the injury that was done. There has been paid to the Choctaw Nation a very large sum of money, and in consideration of which the Choctaw Nation did become liable for the individual claims of these Mississippi Choctaws.

These provisions in the last 20 years requiring the Mississippi Choctaws to remove west in order to enjoy benefits were very largely just and fair to the Choctaws west, because the Indians ought to have gone there; they ought to have been there to have been enrolled to get land, etc., but they had no way of getting there, and I for one can not resist the conclusion that, as the United States Government was at fault in not providing some way to take them over, the Mississippi Choctaws have been damaged and should be compensated from some source. Congress did appropriate, as the chairman has suggested, $20,000; but we appropriated $200,000 the other day to take care of about 290 Indians.

Now, what could 4,500 Indians do with $20,000? So it seems to us that there are a considerable number of Indians who are entitled to benefits of citizenship, yet we recognize that Choctaw citizenship at this hour does not mean anything.

Mr. Konop. Have not they any money?

Mr. Miller. They have plenty of money, but there is no such thing as a Choctaw Nation in the old sense of the term. They are citizens of the United States just the same as you and I are.

Mr. Konop. They have got money to pay this?

Mr. Miller. The Choctaws as a nation have some money and have valuable coal lands. But we must recognize a solemn treaty provision between the Choctaws and the United States. In the treaty of 1902, article 35 begins as follows:

35. No person whose name does not appear upon the rolls prepared as herein provided shall be entitled to in any manner participate in the distribution of the common property of the Choctaw and Chickasaw Tribes, and those whose names appear thereon shall participate in the manner set forth in this agreement.

Now, I can finish in one or two more sentences. It is a grave question Whether the Choctaw Nation alone is responsible and should be required to compensate, if anybody does compensate these Indians, for the injustice. I am not prepared to say here what I think about it, but it seems to us that the committee ought to be agreed that these Indians are on earth. They have been injured and they ought to have some relief, and the committee, then, should say what the relief should be; and, as a prerequisite to that, we are agreed that we should know who they are, how many they are, and where they are.

The Secretary of the Interior, in writing, states that there are records in his office now or in the office of the Commissioner to the Five Civilized Tribes, they heretofore having received applications for 24,000 and taken testimony on them, covering practically all meritorious cases. They can probably make up a list that will include all who have the right and who ought to be included in the list of those to whom relief should be given.

Mr. Carter. No doubt that would depend almost entirely upon whom the Secretary would refer it to, would it not, Mr. Miller?

Mr. Miller. I do not know. I will say this to you, Mr. Carter; If this is left as it is, the Secretary of the Interior would submit a very small list; and the way we have drawn this is not to open it up, not to let every Tom, Dick, and Harry have an investigation, but to take it up and determine where the meritorious cases are and then

Mr. Burke. Would you examine the 24,000 cases that have been acted upon by the Dawes Commission?

Mr. Miller. You understand, Mr. Burke, one single case may involve a thousand cases.

Mr. Burke. I understand; but you said that something like 24,000 cases have been examined, and they have enrolled how many

Mr. Miller. 1,445.

Mr. Burke. Now it is your suggestion that you propose to order the department to reexamine all the balance of the thousands of eases to see whether there are persons who have been identified that were not there that ought to have been there?

Mr. Miller. I do not think the commission ought to reexamine the balance of these cases because

Mr. Burke. But you contemplate that they may examine?

Mr. Miller. Yes, sir.

Mr. Carter. That would depend upon who it was referred to. If it was referred to one man in the department, it would be limited to a small list; if referred to another, there would be more.

Mr. Burke. Now, in your opinion, is there not a considerable number of persons in addition to those 20,000 or more that would probably have just as much merit in their cases as the 20,000 or so?

Mr. Miller. I do not think so. I am very strongly of the opinion that Mr. McKinnon made a very conscientious and honest investigation of Mississippi and the surrounding country, though I do not suppose they got absolutely all of the cases. It would not be expected that a man should get every one, but I do believe that he got the great bulk of the meritorious cases. I have had the Secretary prepare me a list showing the Mississippi Choctaws who are enrolled. I have Mr. McKinnon’s list whereon has been indicated those who were finally enrolled as citizens and those who were not.

Mr. Burke. Mr. Davenport called my attention to the fact that he thinks Mr. Bixby went through there also making some enrollment.

Mr. Miller. Yes; I would not restrict it to this one report.

The Chairman. We have had an attorney before us by the name of Nichols. I think he represented Brown. Was that case taken into consideration by the committee?

Mr. Miller. That particular case was referred to a subcommittee, of which I was chairman, a year or two ago, and while we were agreed that the Nichols family should be enrolled, it was thought best to defer his case until the general enrollment question could be considered.

Mr. Burke. He is a Choctaw who was not enrolled?

Mr. Miller. Yes, sir; he is entitled to citizenship.

Mr. Carter. He could apply, could not he under this B class of yours?

Mr. Miller. Under the B class; yes.

Mr. Carter. In fact, could anybody be prevented from making application under it?

Mr. Miller. That would depend upon just how the committee framed that passage. I will say, as I originally drew that, as I think the chairman of our subcommittee will remember. I suggested the phraseology be “now in his office or under his control.” Then I thought that would perhaps not be fair, so I struck out the word “now.”

Mr. Carter. “Now” would limit it to 24,000, would it not?

Mr. Miller. I can conceive that there will be more than 24,000.

Mr. Carter. I saw in Mr. Harrison’s interview that it will be about 50,000. I want to ask Mr. Miller if he considered in his investigation the Jack Amos case. I notice that he did not mention anything about it.

Mr. Miller. Yes, the Jack Amos case is a fair decision. I have no quarrel with it: but it hinges on the feature that the claimant should have been removed.

Mr. Carter. The thing I wanted the record to show was that the Jack Amos case was taken up by the Dawes Commission as a Mississippi Choctaw case when they first came to Oklahoma, was appealed to the Federal court, the Dawes Commission having decided against it on the grounds of residence, was confirmed by the Federal court, and appealed from the Federal court on the grounds of jurisdiction to the United States Supreme Court, and the decision of the lower court was affirmed.

Mr. Warburton. That was the original treaty, and there never has been any other treaty since that time. They have never rescinded their rights.

Mr. Burke. Before we adjourn, I assume that Mr. Miller is reporting the results of this investigation made by this subcommittee, and 1 understand that the subcommittee concurred in what he has said, and he has made a very elaborate and, I think, convincing argument. Now. I think Mr. Carter, who is very familiar with this subject, ought to have an opportunity to examine the report of the subcommittee and the statement made by Mr. Miller, and that we hear Mr. Carter as to what he may have to say. I think before we discuss it, if we could get the other side of it we would have it printed.

The Chairman. Yes; but have it printed first.

Mr. Hayden. We have here the two governors of these tribes, who are very familiar with this, and likewise these tribal attorneys, who are familiar with it and I think there are a lot of things that ought to be taken up in connection with it, and I think that Mr. Carter is sure they ought to be heard.

Mr. Burke. I think, from what I have heard from Mr. Miller, that the subcommittee has handled this matter quite fully.

Mr. Ferris. Of course; but, as I understand, they do not propose to recommend this particular bill. They merely gave us this information looking to the framing of some particular bill.

Mr. Miller. I will say this: We do not believe that this bill should pass at all. In fact, this bill requires every applicant to identify himself as a descendant from an ancestor Who received or was entitled to receive land under article 14, and yet the testimony of everybody who is familiar with the situation is that if we should require most of the full bloods to establish such ancestry it is something which they can not do.

Mr. Burke. Mr. Miller, I would suggest that before the statement you made today is printed that you insert references to the Supreme Court decisions and the Court of Claims.

The Chairman. I would suggest that we have this all printed as hearing No. 11.

Mr. Russell. I will come down during the day and dictate in substance the statement 1 made to the whole committee at our last meeting. There was no stenographer here then for that purpose.

Mr. Smith. Then, will you have the time fixed for the statement?

The Chairman. We will get the statement from the Interior Department.

There upon at 12.10 o’clock p. m., the committee adjourned.

Hurley, Patrick Jay. Choctaw Citizenship Litigation. 1916.

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