Class 5
In the following cases rejected by the citizenship court, the testimony of claimants before the United States courts stand uncontradicted, and the finding of the United States court in favor of claimants should be confirmed by congress.
James C. Johnson Et Al.
Dawes Commission. No. 1026. United States court, No. 62. Citizenship court, No. 39.
Consolidated with
James J. Bennight Et Al.
Dawes Commission. No. 916. United States court, No. 62. Citizenship court, No. 39.
September 7, 1896. Application submitted by James J. Bennight for the enrollment of himself and 30 other persons as members of the Choctaw Nation by blood, adoption, or intermarriage.
September 9, 1896. Application submitted to the commission for the enrollment of James C. Johnson and 23 others, 21 of whom claim their right to enrollment as citizens of the Choctaw Nation by blood and 3 by intermarriage.
Claimants in both applications claim through the same common ancestor.
The record shows: The leading claimants allege that they are the grandchildren of the Choctaw chief Mushalatubbee, a full-blood, and children of Rebecca Williams, nee Mushalatubbee, a three-fourths Choctaw Indian woman. Chief Mushalatubbee and his daughter, Isabel moved to the Choctaw Nation. Ind. T., in 1831. The descent of the claimants from said ancestry is conclusively shown, many of claimants being three-sixteenths Choctaw blood. It is alleged that in 1892 some of the claimants applied to the Choctaw council, through their attorney. J. S. Mullen, for enrollment. Before the Choctaw council would consider the application the payment of a fee of $700 was exacted. Claimants being unable to raise the money, could not secure action on their application. The following year the same claimants returned to the Choctaw council personally, and sought admission. This time the council broke up in a drunken brawl, and no action was taken. Among the witnesses who testify as to the blood and descent of the claimants are two of the oldest and best known citizens of the Choctaw Nation. One of the witnesses was a member of the Choctaw senate in 1890. The record is clear that claimants are of Choctaw Indian blood and have been recognized as members of the Choctaw Tribe.
December 4 and 5. 1896. The commission rendered decisions in both cases in words and figures as follows: “Application denied.”
From the above decisions appeals were taken to the United States court, central district. Indian Territory. Additional testimony was taken, many witnesses appearing and testifying.
September 11, 1897. The master in chancery filed his report in the case, which was as follows:
In the United States court in the Indian Territory, central district, at South McAlester, James J. Bennight et al., plaintiffs, v. The Choctaw Nation, defendant.
Report of master in chancery
This cause was duly filed before the Dawes Commission September 7, 1896, the plaintiffs claiming citizenship as Choctaw Indians by blood. The defendant answered or pleaded, denying the jurisdiction and authority of the Dawes Commission to hear and determine the cause, and denying the legality of the rules and procedure of the Dawes Commission, and denying that the evidence adduced in the case is sufficient to establish plaintiffs’ claim to citizenship.
The Dawes Commission gave judgment for defendant December 4, 1896, from which the plaintiffs duly appealed.
I find from the evidence that applicants Susan Bennight, Sarah Brogdon, and Mary Vandgriff are each three-sixteenths blood Choctaw Indians; that they and sill of their descendants whose names are set out in this cases are residents of the Choctaw Nation. Ind. T., but the evidence does not show how long they have been here, except R. S. Bennight, three thirty-seconds Choctaw. The evidence shows that he and his children have been living in the Choctaw Nation about four years: that none of the intermarried white men applicants of this branch fit the case were married according to the Choctaw law. I find that the applicant James C. Johnston moved here to the Choctaw Nation from the State of Mississippi 38 years ago: that he is a three-sixteenths Choctaw Indian: that he lived 10 or 12 years of this 38 years in the State of Arkansas, but that he and all his descendants whose names are set out in this case have lived continuously in the Choctaw Nation since 1884: that his descendants (except those born here) were all minors when they were moved back here by their parents in 1884. I find that Laura C. McKinly is a three-sixteenths Choctaw and that she and her family were born and raised and have always lived here in the Choctaw Nation. I find that Lena A. Williams and brother, Samuel C. Williams, are three-sixteenths Choctaw Indians, and were born and raised and have always lived in the Choctaw Nation.
Respectfully submitted this ____ day of August 1897.
W. B. Rutherford.
Special Master in Chancery.
September 11, 1897. A decree was entered admitting the following persons to citizenship in the Choctaw Nation: Richard S. Benight, Luther Benight, Winn Benight, Dora Jeff Benight, Sarah D. Brogdon, Wesley H. Brogdon, Jodie J. Brogdon, Allamenta Brogdon, Ruby Brogdon, Hazy Ann F. Vandergriff. Amanda I. Vandergriff, James M. Vandergriff, William P. Vandergriff, Emma L. Vandergriff, Annie C. Vandergriff, Davey D. Vandergriff, Sarah McClarty, Elton E. McClarty, Burr McClarty, James C. Johnson, S. Ann Stonecipher, James B. Stonecipher, Essie May Stonecipher, Bessie Berthan Stonecipher, Roscoe Stonecipher, Dortus Parish, Nellie T. Parish, Milus Johnson, Atrus Johnson, Alvin Johnson, William C. Johnson, Jessie B. Johnson, Escoe Johnson, Addie May Johnson, Laura C. McKinly, Samuel M. McKinly, Josephine C. McKinly, John Leo McKinly, Lena A. Williams, Samuel C. Williams, all by blood, and Annie Benight and Delila Johnson as intermarried citizens. (Certified copy hereto attached, marked “Exhibit A.”)
October 24. 1898. Case appealed to the Supreme Court of the United States, and judgment of the United States court. Indian Territory, affirmed. (Reported in 174 U. S. in the consolidated case of Stephens v. Cherokee Nation.)
December 17, 1902. Judgment of the United States court vacated by decree of the citizenship court in test case.
March 9, 1903. Record before United States court transmitted to citizenship court.
Counsel for claimants offered in evidence the record before the Commission to the Five Civilized Tribes in 1896 and the record before the United States court. This evidence was rejected by the citizenship court, the opinion stating:
The evidence submitted to the commission were certain exparte affidavits taken after the l0th day of June 1896, and the parties then making them are not shown to have been dead or beyond the jurisdiction of said commissioners when said exparte affidavits were taken and offered In evidence. Before the United States court below they were also offered, as well as certain depositions taken in 1897 for the purpose of being so offered as evidence, and they were so offered.
It Is plain, therefore, that none of them are competent evidence before us.
The court, in its opinion, refers to additional evidence taken before that court by the claimants, but the record fails to disclose such testimony.
April 18, 1904. Decree entered denying all claimants enrollment as citizens of the Choctaw Nation.
Counsel for claimants respectfully submit that each of the persons admitted by judgment of the United States court is entitled to enrollment. They are as follows: Richard S. Benight. Luther Benight. Winn Benight, Dora Jeff Benight, Sarah D. Brogdon. Wesley H. Brogdon. Jodie J. Brogdon. Allamenta Brogdon, Ruby Brogdon. Hazy Ann F. Vandergriff. Amanda I. Vandergriff. James M. Vandergriff. William P. Vandergriff. Emma L. Vandergriff, Annie C. Vandergriff, Davey D. Vandergriff, Sarah McClarty. James C. Johnson, Elton E. McClarty, Burr McClarty: James C. McClarty, S. Ann Stonecipher, James B. Stonecipher, Essie May Stonecipher, Bessie Berthan Stonecipher, Roscoe Stonecipher, Dortus Parish, Nellie T. Parish, Milus Johnson, Atrus Johnson, Alvin Johnson, William C. Johnson, Jessie B. Johnson, Escoe Johnson, Addie May Johnson, Laura C. McKinly, Samuel M. McKinly, Josephine C. McKinly, John Leo McKinly, Lena A. Williams, Samuel C. Williams, Annie Benight, and Delila Johnson.
Also the following minor children, for whose enrollment application was made within the time required by law:
May 24, 1900. Teenie M. Bennight, child of Richard S. Bennight.
January 17, 1902. Hildreth Vandergrif.
June 1, 1906. Carl R. Vandergrif, children of William P. Vandergrif.
June 11, 1906. Rorena Vandergrif, child of James M. Vandergrif.
June 18, 1906. Annie Myrtle Manly, child of Emma L. Vandergrif, now Manly.
February 17, 1902. Kully Brake.
May 12, 1906. Marvin T. Brake, children of Amanda I. Brake.
October 8, 1900. Ida Bolin McLarty.
July 12, 1906. Nancy F. McLarty, Thursey McLarty, children of Sarah McLarty.
June 7, 1900. L. C. Stonecipher.
February 21, 1902. Oto Stonecipher, children of Samantha A. Stonecipher.
August 9, 1899. Nannie E. Parish.
August 27, 1901. Ethel May Parish, children of Dorthus (Dortus) Parish.
August 9, 1809. Fannie L. Johnson,
February 11, 1902. Eulalie Johnson, children of Milus Johnson.
August 9, 1899. Amma D. Thomas.
January 9, 1902. Edna Lee Thomas, children of Artus Thompson.
January 9, 1902. Virgie Benton Johnson, child of Alvin Johnson.
June 1, 1899. Agnes Messersmith.
April 26, 1902. Robert Jackson Vanderslice, children of Laura C. Vanderslice, formerly McKinley.
June 1, 1899. Addie May Johnson, child of James C. Johnson.
Exhibit attached.
Respectfully submitted.
Ballinger & Lee and W. S. Field
Copy Of Order Of Court
United States Of America.
Indian Territory, central district, ss:
In the United States court in the Indian Territory, central district, at a term thereof begun and held at South McAlester, in the Indian Territory, on the 11th day of September. A. D. 1897.
Present: The Hon. William H. H. Clayton, judge of said court.
The following order was made and entered of record, to wit:
Jas. J. Bennight et al. v. Choctaw Nation. No. 62. Judgment.
Be it remembered that on this 11th day of September 1897, it being one of the days of the regular April. A. D. 1897, term of this court, came on for hearing the matter of the petition of James J. Bennight et al., for enrollment as members of the Choctaw Tribe of Indians, both the petitioners and the Choctaw Nation appearing by their respective attorneys and announce ready for trial And the court having heard the testimony and the argument of counsel, and being well and fully advised in the premises doth find that the petitioners, Richard S. Bennight, Luther Bennight, Winn Bennight, Dora Jeff Bennight, Sarah D. Brogdon, Wesley H. Brogdon, Jodie J. Brogdon, Allamenta Brogdon, Ruby Brogdon, Hazy Ann F. Vandergriff, Amanda I. Vandergriff, James M. Vandergriff, William P. Vandergriff, Emma L. Vandergriff, Annie C. Vandergriff, Davey D. Vandergriff, Sarah McClarty, Elton E. McClarty, Burr McClarton, James C. Johnson, S. Ann Stonecipher, James B. Stonecipher, Essie May Stonecipher, Bessie Bertha Stonecipher, Roscoe Stonecipher, Dortus Parish, Nellie T. Parish, Milus Johnson, Atrus Johnson, Alvin Johnson, William C. Johnson, Jessie B. Johnson, Escoe Johnson, Addle May Johnson, Laura C. McKinly. Samuel M. McKinly, Josephine C. McKinly, John Leo McKinly, Lena A. Williams, Samuel C. Williams, are Choctaw Indians by blood, and that the petitioners Annie Bennight and Delila Johnson are white persons married according to the Choctaw laws; and that all of the above-named applicants are citizens of the Choctaw Nation and are entitled to all the rights, privileges, immunities, and benefits and be enrolled as such citizens and doth therefore reverse the judgment of the Dawes Commission to the Five Civilized Tribes, and doth order and adjudge that the names of the said applicants be so enrolled. And the clerk of this court is hereby ordered and directed to send a certified copy of this judgment to the aforesaid commission, and the same shall be a mandate to the said commission to place the names of the aforesaid applicants upon the proper roll already made or to be made of the Choctaw Tribe of Indians. And it is ordered and adjudged that the aforesaid applicants have mid recover of the Choctaw Nation all their costs in their behalf expended, for which let execution issue.
The court doth further find that Susan S. Bennight. Jesse D. Bennight, Millard Bennight, and Eva G. Bennight are Choctaw Indians by blood, but that they were not residents of the Choctaw Nation at the time of the institution of this suit, and their application is therefore denied. The court doth further find that James J. Bennight, William Vandergriff, Harvey E. McClarty, James M. Brogdon, R. B. Stonecipher and Robert T. Parish are white persons and not married according to the laws of the Choctaw Nation, and their application is therefore denied, and the judgment of the aforesaid commission is hereby affirmed. It is further ordered and adjudged that the Choctaw Nation have and recover from the last named applicants all its costs in this behalf laid out and expended, for which let execution issue.
United States Of America,
Indian Territory, central district. ss:
I, E. J. Fannin, clerk of the district court of the United Slates for the central district of the Indian Territory, do hereby certify the foregoing to be a true copy of an order made by said court on the 11th day of September 1897, as appears from the records of said court now on file in my office.
In testimony whereof I have hereunto set my hand, at my office in South McAlester, in said district, this 10th day of March A. D. 1903.
[SEAL] E. J. Fannin, Clerk.
By I. M. Dodge.
This is to certify that I am the officer having custody of the records pertaining to the enrollment of the members of the Choctaw, Chickasaw, 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 a certified copy of the judgment of the court, dated September 11, 1897, on file In this office in the matter of the petition of James J. Bennight et al. for enrollment as a member of the Choctaw tribe of Indians.
J. Geo. Wright, Commissioner to the Fire Civilized Tribes.
By W. H. Angell, Clerk in charge of Choctaw Records
Dated at Muskogee. Okla., this 12th day of October 1910.
