Office Of The Secretary
Washington, D. C., August 3, 1904
Commission To The Five Civilized Tribes
Muscogee, Ind. T.
GENTLEMEN: June 8, 1904, you transmitted the papers in the matter of the application of Clay McCoy for enrollment as a citizen, by intermarriage, of the Chickasaw Nation.
It appears that McCoy was married in 1895 to a citizen by blood of the Chickasaw Nation, in accordance with the laws of that nation; that his wife’s name is now borne upon the rolls of the Chickasaw Nation prepared by you and approved by the Department, and that they have resided continuously in said nation since their marriage. In 1896 McCoy was “admitted” as a citizen by intermarriage by your Commission. Your decision was affirmed, in 1898, by the United States court for the southern district of Indian Territory. The decision of the United States court was vacated, however, by a decree of the Choctaw-Chickasaw citizenship court rendered December 19, 1902, in the test case of J. T. Riddle v. The Choctaw and Chickasaw Nations.
You express the opinion that your Commission is apparently without further jurisdiction or authority in any manner to determine McCoy s application. You request, however, inasmuch as the cases of a number of applicants occupy an analogous status with that of Clay McCoy, that your Commission be specifically instructed as to what disposition should be made of such cases.
Reporting in the matter June 24, 1904, the Acting Commissioner of Indian Affairs recommends “that the Commission be advised that they are without authority to take action of any character looking to the enrollment of Clay McCoy, or any person similarly situated.”
In an opinion rendered July 30, 1904, approved by the Department the same day, relative to the question submitted by you, the Assistant Attorney-General for this Department concurred in the views of the Indian Office. A copy of his opinion is enclosed herewith, for your guidance, together with a copy of the Acting Commissioner s letter.
Respectfully,
Thos. Ryan, Acting Secretary
Office Of The Assistant Attorney-General
Washington, D. C., July 30, 1904
The Secretary Of The Interior
SIR: I received by reference of July 23, 1904. the papers in the application of Dr. Clay McCoy, for enrollment as a citizen by intermarriage, of the Chickasaw Nation, transmitted by the Commission to the Five Civilized Tribes, with request for specific instructions for their guidance in similar cases. I am requested to render an opinion upon the case presented.
The record shows that McCoy, a white man, April 17, 1895, according to the usages and customs of the Chickasaw Nation, under a Chickasaw tribal license, married Sallie Goldsby, a recognized and enrolled citizen by blood of the Chickasaw Nation. She has been enrolled by the Commission, No. 3905 of the rolls approved by the Secretary of the Interior December 12, 1902. Since the marriage McCoy has lived continuously with her in the Chickasaw Nation.
Under the act of June 10, 1896 (29 Stat, 321), McCoy, August 29, 1806, applied to the Commission to be enrolled as a citizen by intermarriage, which was allowed November 23, 1896, and the Chickasaw Nation alone appealed to the United States court, southern district, Indian Territory, and by that court the judgment of the Commission was affirmed March 15, 1898. Under the act of July 1, 1902 (32 Stat, 641), in a suit instituted by the Choctaw and Chickasaw nations against J. T. Riddle and others, this judgment admitting McCoy to enrollment was vacated December 17, 1902. McCoy did not appeal or obtain certification of his case to the citizenship court under sections 31, 32, and 33 of the act of July 1, 1902 (32 Stat., 646-648), but, at suggestion of counsel for the Chickasaw Nation, given him December 24, 1902, applied to the Commission to the Five Civilized Tribes for enrollment. February 15, 1904, with reference to this and like cases, the Commission adopted a rule that:
Resolved, That the status of these applicants in whose cases appeals to the Choctaw and Chickasaw citizenship court have not been taken be considered by the Commission without reference to any action by the United States court in Indian Territory or by the Choctaw and Chickasaw citizenship court, and that the original judgment as entered by the Commission to the Five Civilized Tribes in 1896 be held valid and in full force and effect.
The Choctaw and Chickasaw nations objected, and such proceedings were taken that May 3, 1904, the Secretary of the Interior requested the opinion of tho Attorney-General as to the effect of the decree of the citizenship court, who, May 9, 1904, rendered his opinion:
That annulment of the United States court judgments affirming a favorable decision of the Commission to the Five Civilized Tribes upon an application for citizenship so far deprives the applicant of a favorable judgment as to devolve upon him the duty of causing his cause to be transferred to the citizenship court.
I am further of opinion that annulment of the United States court judgment did not revive and put into force and effect the judgment of the Commission to the Five Civilized Tribes admitting such person to citizenship, and that enrollment by the Commission based upon such a theory would be a clear violation of the rights of the Indian nations.
The Commission to the Five Civilized Tribes expresses the opinion that:
In view of this recent opinion the Commission is apparently without further jurisdiction or authority in any manner to determine the application of Clay McCoy for enrollment as a citizen by intermarriage of the Chickasaw Nation. Seemingly his failure to appeal or have certified to the Choctaw and Chickasaw citizenship court the record in the case before the United States court for the southern district of the Indian Territory has so far deprived him of a favorable judgment as to prohibit his enrollment as an intermarried citizen of the Chickasaw Nation.
The Indian Office recommends that:
It is therefore respectfully recommended that the Commission be advised that they are without authority to take action of any character looking to the enrollment of Clay McCoy or any person similarly situated.
My attention is by the letter of reference specially directed to sections 27, 28, and 34 of the act of July 1, 1902, supra, which sections, so far as here material, are as follows:
- 27. The rolls of the Choctaw and Chickasaw citizens and Choctaw and Chickasaw freedmen shall be made by the Commission to the Five Civilized Tribes in strict compliance with the act of Congress approved June 28, 1898 (30 Stats., 495), and the act of Congress approved May 31, 1900 (31 Stats., 221), except as herein otherwise provided: Provided, That no person claiming right to enrollment and allotment and distribution of tribal property by virtue of a judgment of the United States court in the Indian Territory under the act of June 10 , 1896 (29 Stats., 321), and which right is contested by legal proceedings instituted under the provisions of this agreement, shall be enrolled or receive allotment of lands or distribution of tribal property until his right thereto has been finally determined.
- 28. The names of all persons living on the date of the final ratification of this agreement entitled to be enrolled as provided in section 27 hereof shall be placed upon the rolls made by said Commission.
- 34. During the ninety days first following the date of the final ratification of this agreement the Commission to the Five Civilized Tribes may receive applications for enrollment only of persons whose names are on the tribal rolls, but who have not heretofore been enrolled by said Commission, commonly known as “delinquents,” and such intermarried white persons as may have married recognized citizens of the Choctaw and Chickasaw nations in accordance with the tribal laws, customs, and usages on or before the date of the passage of this act by Congress.
McCoy was clearly a person whose right was “contested” within the meaning of section 27. Whether he was or was not made party to the representative suit contemplated by sections 31, 32, and 33, he had right to he made a party on application, and the judgment in the action operated to annul the favorable judgment that he before had recovered.
It is not my province to question the opinion of the Attorney-General herein rendered May 9, 1904. supra. That opinion is conclusive in the present case. I therefore concur in the view expressed by the Indian Office.
Very respectfully,
Frank L. Campbell, Assistant Attorney-General
Approved July 30, 1904.
Thos. Ryan, Acting Secretary
Office Of Indian Affairs
Washington, D. C., June 24, 1904
The honorable the Secretary Of The Interior
SIR: I have the honor to enclose herewith a report from the Commission to the Five Civilized Tribes, dated June 8, 1904, in which they say that Clay McCoy, a white man, who has resided in the Chickasaw Nation for thirty-three years last past, was married to Sallie Goldsby, a recognized and enrolled citizen of the Chickasaw Nation, on April 17, 1895; that said marriage was performed in accordance with the laws of the Chickasaw Nation, and was solemnized on April 17, 1895, by Rev. J. S. Murrow; that the applicant’s wife has been enrolled as a citizen by blood of the Chickasaw Nation; that her name appears on the approved partial roll opposite No. 3905; that McCoy has lived in the Chickasaw Nation continuously since his marriage, and that he and his wife have lived together as husband and wife since said marriage; that under provisions of the act of June 10, 1896, Clay McCoy applied to the Commission for admission to citizenship in the Chickasaw Nation as an intermarried citizen, claiming right by virtue of his marriage to Sallie McCoy, nee Goldsby, that on November 23, 1896, the Commission rendered a decision admitting Clay McCoy as an intermarried citizen of the Chickasaw Nation; that an appeal was taken from the Commission s decision, and that on March 15, 1898, the United States court for the southern district of the Indian Territory affirmed the Commissions decision.
They then say that by the decision of the Choctaw-Chickasaw citizenship court of December 17, 1902, in the test suit, that of the Choctaw-Chickasaw Nations v. J. T. Riddle et al., the judgment of the United States court in the case mentioned was annulled and vacated; that after the rendition of the judgment mentioned Clay McCoy on December 22, 1902, addressed a communication to Mansfield, McMurray and Cornish, attorneys for the Choctaw and Chickasaw Nations, relative to his status at that time as an intermarried citizen of the Chickasaw Nation, and that on December 24, 1902, they advised him as follows:
The decision of the Choctaw and Chickasaw citizenship court is that all “court claimants” judgments are void. The effect of this would be of course to leave the judgments of the Dawes Commission as they were before they were appealed from.
As to whether or not the Commission would permit application in pursuance of this judgment we are unable to say, but it might be well for you to make such an application along the line suggested in your letter.
It is shown by said report that Clay McCoy did not appeal from the decision of the United States court or have certified to the Choctaw and Chickasaw citizenship court within the time prescribed by the act of July 1, 1902 (32 Stat. L., 641), the record and proceedings in his case before the United States court for the southern district of the Indian Territory and that the Commission, at a session held at the general office at Muscogee, Ind. T., on February 15, i904, with reference to persons occupying an analogous status to that of Clay Mc Coy, adopted the following resolution:
Resolved, That the status of these applicants in whose cases appeals to the Choctaw and Chickasaw citizenship court have not been taken, he considered by the Commission without reference to any action by the United States court in Indian Territory or by the Choctaw and Chickasaw citizenship court and that the original judgment as entered by the Commission to the Five Civilized Tribes in 1896 be held valid and in full force and effect.
To this action of the Commission the attorneys for the Choctaw and Chickasaw nations entered objections, and all of the papers received with the Commission s report of February 15, 1903, concerning this subject, were transmitted to the Department, with office report of March 12, 1904. This office did not agree with the position taken by the Commission, and the Acting Attorney-General, in an opinion dated May 9, 1904, said:
That annulment of the United States court judgments affirming a favorable decision of the Commission to the Five Civilized Tribes upon an application for citizenship so far deprives the applicant of a favorable judgment as to devolve upon him the duty of causing his cause to be transferred to the citizenship court.
I am further of opinion that annulment of the United States court judgment did not revive and put into force and effect the judgment of the Commission to the Five Civilized Tribes admitting such persons to citizenship and that enrollment by the Commission based upon such theory would be a clear violation of the rights of the Indian nations.
The Commission say that in view of this opinion they are apparently without jurisdiction or authority in any manner to determine the application of Clay McCoy for enrollment as an intermarried citizen of the Chickasaw Nation, and ask for instructions in the premises.
The opinion of the Acting Attorney-General is in plain and unmistakable language. He says that it was the duty of all persons who had favorable court judgments, which judgments were annulled by the decision in the test suit, to appeal to the citizenship court within the time prescribed by the supplemental agreement, and that the duty of causing the record and proceedings had in the United States court to be transferred to the citizenship court was incumbent upon the applicant, and that by a failure to cause such transfer to be made within the time prescribed by law the applicant was not entitled to enrollment. Under this opinion it is evident that in cases of the character of the one under consideration the Commission has no power or authority in the premises, and that the Department has no duty to perform.
It is therefore respectfully recommended that the Commission be advised that they are without authority to take action of any character looking to the enrollment of Clay McCoy, or any person similarly situated. Very respectfully,
A. C. Tonner, Acting Commissioner