Office Of The Assistant Attorney-General
Washington, D. C., November 12, 1904
The Secretary Of The Interior
SIR: I received by reference of July 22, 1904, with request for my opinion thereon, the record in the application of Lemuel Welcome to the Commission to the Five Civilized Tribes for his enrollment as a Cherokee freedman by intermarriage. The applicant is a Negro, born in Ohio about 1855, who first went to the Cherokee country about 1870, and September 19, 1883, under a Cherokee marriage license, married Amanda Williams, who was identified on the 1880 authenticated roll of Cherokee freedmen. Her enrollment by the Commission to the Five Civilized Tribes was approved by the Secretary of the Interior April 30, 1904. She and the applicant were residents in good faith of the Cherokee Nation at the time of their marriage, and have ever since continuously lived there. The applicant claims right to enrollment by virtue of his marriage, and the question presented is whether one not of Cherokee blood by intermarriage with a Cherokee freedman becomes entitled to be enrolled as a citizen by intermarriage.
The right of the Indian nations or tribes to regulate their internal affairs, subject to the control of Congress, has always been recognized by the Government and courts of the United States. Talton v. Mayes (163 U. S., 376, 382-383); Kagama v. United States (118 U. S., 375, 381) ; Roff v. Burney (163 U. S., 218, 222). The right to define how citizenship may be acquired and what rights shall accrue by intermarriage of persons not citizens with its own citizens is necessarily the right of every self-governing community and belongs to the Indian nations, subject only to control of Congress. Negroes were not Cherokee citizens until the treaty of July 19, 1866 (14 Stat, 799-801), by Article IX, provided that:
all freedmen who have been liberated by voluntary act of their former owners or by law, as well as all free colored persons who were in the country at the commencement of the rebellion, and are now residents therein or who may return within six months, and their descendants, shall have all the rights of native Cherokees.
The rights conferred were such as pertained to membership in the tribe as such. It did not of itself have the effect to give them power, by marriage with one alien to the nation, to confer on such person espoused rights of citizenship not conferred by any law of the Cherokee Nation or act of Congress. It is analagous to the fourteenth amendment to the Constitution of the United States, and had the same object with respect to the Cherokee Nation and the persons affected as that amendment had respecting the States of the Union and the persons of negro race residing in the United States. The court held in the Slaughterhouse cases (16 Wall., 36, 73), “that its main purpose was to establish the citizenship of the negro can admit of no doubt,” but that (ib., 77): “The entire domain of the privileges and immunities of citizens of the States, as above defined, lay within the constitutional and legislative power of the States and without that of the Federal Government.” The treaty of 1866 went no further than to confer upon the classes therein named and their descendants the rights of Cherokee citizenship; but it did not confer upon the new citizens so admitted the power to grant citizenship to other aliens also by marriage with them. The question presented must therefore be solved by the Cherokee law.
Citizenship by intermarriage is conferred by Cherokee law upon “every white man, or citizen of the United States, or of any foreign state or government “who marries” a Cherokee, Delaware, or Shawnee woman, citizen of the nation,” upon complying with conditions and regulations imposed. (Cherokee Laws 1881, sec. 66, p. 275; Laws 1892, sec. 660.)
It is argued by counsel that Mrs. Welcome:
being a freedman under the ninth article of the treaty of 1866, she had “all the rights of native Cherokees.”If a native Cherokee marries a white woman, she becomes thereby adopted into the tribe and is endowed with the rights of citizenship. Now, if a freedman who has all the rights of a native Cherokee married out of the tribe, is not the wife or husband so married adopted into the tribe? If not, then the freedman has not “all the rights of native Cherokees.” In other words, a freedman who has all the rights of native Cherokees ought to be able to do whatever such native Cherokee can do.
The answer to this position has already been given. The right to contract a marriage does not necessarily carry with it the right of the spouse to citizenship. It is for the State to define how and upon whom citizenship shall be conferred. It may also regulate and define marriage and its effects. Laws against intermarriage of the white and black races are not annulled or inhibited by the fourteenth amendment and civil-rights legislation thereunder. Green v. State (58 Ala., 190; 29 Am. R., 739); Kinney s case (30 Gratt. Va., 859); Frasher v. State (3 Tex. Ct. App., 263; 30 Am. R., 131); State v. Gibson (36 Ind., 389; 10 Am. R., 42); State v. Kennedy (75 N. V C., 251; 22 Am. R., 683); ex parte Francois (3 Wood s U. S. 5th Cir., 367). If the amendment and civil-rights legislation conferring upon the negro all the rights, privileges, and immunities of citizens of the United States did not have the effect to confer right of marriage with persons of another race the treaty of 1866 would, obviously, not give right to confer citizenship on a noncitizen by intermarriage.
Welcome was a citizen of the United States and under Cherokee law eligible to become a citizen of the Cherokee Nation by intermarriage, if the woman he espoused was, within the meaning of the Cherokee law, “a Cherokee woman,” and such marriage was permissible under Cherokee law.
In Alberty v. United States (162 U. S., 499) it was a controlling question, decisive of jurisdiction of the Federal courts, whether Duncan, of Indian blood, illegitimate son of a Choctaw Indian by a negro woman who in 1880 or earlier married a Cherokee freed woman, a Cherokee citizen, was by virtue of such marriage a Cherokee citizen. The court held (ib., 501):
It would seem, however, from such information as we have been able to obtain of the Cherokee laws, that such marriage would not confer upon him the rights and privileges of Cherokee citizenship beyond that of residing and holding personal property in the nation; that the courts of the nation do not claim jurisdiction over such persons, either in criminal or civil suits, and they are not permitted to vote at any elections.For the purposes of jurisdiction, then, Alberty must be treated as a member of the Cherokee Nation, but not an Indian, and Duncan as a colored citizen of the United States.
In Talton v. Mayes, supra, the court held that, where no objection existed arising from the Constitution or any treaty or law of the United States, “the determination of what was the existing law of the Cherokee Nation” was a matter solely “within the jurisdiction of the courts of that nation.” The supreme court of the Cherokee Nation, June 20, 1871, in the cases of George Washington and others claiming citizenship in the Cherokee Nation by intermarriage with freedman Cherokee citizens, held that citizenship by intermarriage could not be so obtained.
In the legislation of Congress, as well as in Cherokee laws, the distinction between Cherokees and Cherokee freedmen is well marked. They are borne on different rolls. While citizens of the Cherokee Nation, they are not Indians nor Cherokees, nor spoken of or regarded as such, but are Cherokee freedmen, a distinct class of citizens. The words “Cherokee woman” in the intermarriage act signify and must be taken to mean a woman citizen of the nation who is such by virtue of Cherokee blood, the same as Shawnee and Delaware coupled therewith indicate citizens by blood descent from the Shawnee and Delaware Indian stocks.
This interpretation and meaning harmonizes with the legislation of Congress and is that which the Cherokee courts, their former judges, and lawyers testify is the legal signification of the words.
It follows that the application was properly rejected by the Commission, and I am of opinion that such decision should be affirmed.
Very respectfully,
Frank L. Campbell, Assistant Attorney-General
Approved November 15, 1904
E. A. Hitchcock, Secretary