Dawes Commission No. 877. Commission Nos. 7-D-19.5, 7-D-194, 7-D-187. 7-D-196. 23-929.
On the 1896 census roll, placed there by the Choctaw revisory hoard, which revisory board action was held legal by the department in the case of W. C. Thompson, and following which ruling the commission ordered enrolled parties to the Brown-Nichols. A. A. Spring, and other similar cases, but in the Brashears case the commission held that the evidence disclosed that the applicants were not of Indian blood and that therefore their tribal enrollment was without authority of law. But that the commission was in error as to this question of fact is clearly shown by the following record:
Record
September 8 and 9, 1896. Under three separate petitions, applications were filed with the Dawes Commission for the enrollment as citizens by blood of the Choctaw Nation of the following named persons, applicants herein: Napoleon B. Brashears, La Fayette Brashears, Arthur Brashears. Fred S. Brashears, Sarah E. Salmon, John C. Salmon, Forney Salmon, Lois Salmon. Ida May Duncan, Dora M. Duncan, and for the enrollment of the following-named persons as intermarried citizens of the Choctaw Nation: Mary J. Brashears and Ollie Duncan.
The petitions state that the above-named persons, except the first named, are children and grandchildren of Napoleon B. Brashears. and the petition of Napoleon B. Brashears states that he is entitled to enrollment for the following reasons:
My father. Mortimer M. .Brashears, was a son of Joseph Brashears, whose father was Zadoc Brashears. All these Brashears were Choctaw Indians.
Attached to the petition is the joint affidavit of James D. Coyle and Lucy J. Jones, who therein state that “Napoleon B. Brashears is a son of Mortimer M. Brashears. and the said Joseph Brashears was a son of Zadoc Brashears. The above-named Brashears were Choctaw Indians.”
October 22, 1896. Answer of the Choctaw Nation filed.
December 2, 4, and 8, 1896. Decisions of the commission in each of the three cases in words and figures as follows, to wit: ” Denied.”
No appeal was taken from this decision.
January 6, 1897. A certificate issued showing that the names of the above applicants were placed upon the 1890 tribal roll of the Choctaw Nation by the Choctaw tribal commission, generally known as the “Choctaw revisory board,” which was authorized by the Choctaw Council. Said roll contains the following names: Napoleon B. Brashears, William Brashears. La Fayette Brashears, Arthur Brashears, Logan Brashears, Fred Brashears, Ida Duncan. Olie Duncan, Dora M. Duncan, Amanda Freeze, Damon Freeze, and Raymond Freeze.
June 5, 1899. Application made to the Commission to the Five Civilized Tribes for the enrollment of all the persons named in the application of 1896, and in addition thereto for the enrollment of Amanda J. Freeze, Damon Freeze, and Raymond Freeze, Amanda Freeze being the daughter and Damon and Raymond being the grandchildren of Napoleon B. Brashears.
October 6, 1899. Application was made to the commission for the enrollment of Dora M. Duncan.
December 23, 1902. Application made for enrollment of Ruby Freeze and Earl Freeze.
January 19 and February 6, 1905. In two separate decisions the commission refused to enroll applicants, holding that the revisory board had no authority to enroll applicants because of the action of the commission in 1896 from which no appeal was taken, and for the further reason that the revisory board had no legal existence.
July 17, 1905. The department returned the record in this case to the commission with directions to permit the applicants to introduce such testimony as might be necessary for a full presentation of the merits of their case in conformity with the approved opinion of the assistant attorney general for the department of July 10, 1905, from which opinion the following is quoted:
There is not sufficient evidence in the record for me to form an opinion upon Brashears’s right to be enrolled. Accepting the facts stated in his affidavit, undisputed by the nation after due service. I am of opinion that enough appears to show that Brashears, in due time and in due form under the act of 1886, supra, asserted a right and was entitled to a hearing; that there has been a miscarriage in the proceedings amounting in effect to denial of a hearing:, and that a rehearing de novo should be ordered.
January 3. 1906. Hearing before the Commissioner to the Five Civilized Tribes, at which hearing Napoleon B. Brashears was questioned as to his enrollment by the revisory board. He stated that he appeared before the Choctaw revisory commissioners at Tuskahoma on December 20, 1896; that at that time he had received no notice of the action of the Dawes Commission, which had a few days previous thereto rejected his claim; that he had been before the Choctaw census commissioners about two months prior to his appearance before the revisory board and before the action of the Dawes Commission and was told by the commissioners that a certificate would be issued him later; that it would have to be drawn up and signed by the national secretary; that the national secretary did subsequently issue the certificate which was offered in evidence.
The attorney for applicants then offered the testimony of a number of witnesses as to the merits of applicants’ claim, which the Commissioners of the Five Civilized Tribes refused to hear.
January 9, 1906. The Commissioner of the Five Civilized Tribes transmitted the record back to the department with the recommendation that the decision of the commission of January 9. 1905, adverse to the applicants be affirmed.
April 6. 1906. Department returned the record to the commissioner directing that all previous action be set aside, to the end that a complete investigation of the merits of the case might be made.
May 9. 1906. Hearing before Commissioner to Five Civilized Tribes; Napoleon B. Brashears testified as follows: .
My age is 57. I came to the Choctaw Nation in 1858. T lived in the eastern pert of the nation with my father, Mortimer Brashears, who is dead; he died in August, 1863. I remained In the Choctaw Nation until the spring of 1861, except for a short period of time during the year 1859. My father enlisted In the United States Army and was killed. My grandfather was Joseph Brashears, and his father was Zadoc Brashears. Zadoc Brashears was a Choctaw Indian. My grandfather, Joseph Brashears, came to the Choctaw Nation. Ind. T. My mother’s maiden name was Sarah Vaughn. I do not know whether she had Choctaw blood. I have been recognized by the officials of the Choctaw Nation as a citizen. I enjoyed the privileges pursuing any and all avocations without being molested. I have lived continuously in the nation since 1890. During these years I have never been called upon to pay a permit. I held land, improved and cultivated land, and afterward sold the improvements to a Choctaw citizen. My grown sons voted with me in these elections. One of my daughters married a noncitizen in the usual way as prescribed by the Choctaw law. They were married ns the Choctaw law prescribed between citizens and noncitizens. I held a greater number of cattle than any but a Choctaw could hold. Myself and family were enrolled by the Choctaw Nation on the tribal roll. I have not drawn money from the tribe, and have not been allotted land. Choctaw citizens were required to pay royalties on hay cut on the public domain. I paid such royalties. A noncitizen was prohibited from cutting such hay. A citizen could do so by making bond. I made bond. A Choctaw county judge approved my bond in open court.
On cross-examination :
When my father came to the Indian Territory he was a trader and rented a house to live in. I married in Arkansas but did not have a license. I voted in Pope County, Ark. I did not swear that I was a United States citizen. I was not required to do so. I did not tell the election Judges that I was a Choctaw. From 1872 to 1886 I lived in Arkansas and conducted myself as a citizen of the United States. In 1886 I took a trip to Colorado, returning to Arkansas same year, where I remained near to Fort Smith until 1890 when I moved to Red Oak, Choctaw Nation, where I lived for four years and rented a place. My mother and father were married in the State of Arkansas. I claim by Choctaw blood from both. I do not know how old my father was when he died, but my best Judgment is that he was about 40. I do not know positively what degree of Choctaw blood I have. I have heard my mother say she had Choctaw blood, and I have heard my father say he had Choctaw blood. I never saw any of my grandparents. I do not remember who my father’s mother was, but I do remember who his father was. My parents told me that my grandfather, Joseph Brashears, was a son of Zadoc Brashears. I can not say that my father told me that Joseph was a son of Zadoc, but he did say he was a descendant of Zadoc. I do not know who the wife of Zadoc Brashears was. I know the Brashears people in the Choctaw Nation. Some of them recognize me as their relative. George and John Brashears both recognize me ns a relative. George lives near Ada. John lives in Chickasaw Nation. My father told me that Joseph came to Indian Territory. If there are any brothers and sisters of my father living I do not know it. One sister, May J. Coyle, died in the Chickasaw Nation. I had one uncle, William, who lived somewhere, in the Choctaw Nation. I never had any uncles living in Arkansas. I saw one uncle on my mother’s side in Arkansas. His name was Joseph Vaughn. I do not know where he or his descendants live. I never was called upon to pay a permit when I was renting land.
Redirect:
When my father lived in the Choctaw Nation, Vaughn Brashears, who lived on Brushy, in Choctaw Nation, repeatedly visited my father’s family. Turner Brashears who also lived in Brushy, visited my father. Vaughn Brashears urged my father to move Into his neighborhood, and said he would give my father an improved farm. When I moved to the Choctaw Nation in 1890, I claimed to be a Choctaw. I bought a lot in town and built a house. Richard Brashears was a slave and belonged to Vaughn Brashears. He Is living and Is here now. I know of two brothers of Joseph Brashears. Their names were William and Vaughn. If there were any more I do not .know of It.
In response to commissioner:
My grandfather Joseph Brashears, was born in Mississippi. It has always been my information that he was the son of Zadoc Brashears; the only thing, that I can not be positive about is that my father stated so.
Richard Brashears testified as follows:
I was born in Alabama in 1821. My home is now in the Chiekasaw Nation. I came to the Indian Territory in 1831. I was brought here by Vaughn Brashears, Louis, Benjamin, Jefferson, William and Tobias Brashears came at the same time. These people were all emigrants as Choctaws to this country. They came from Yazoo River, Miss. I was a slave, and belonged to Vaughn Brashears. I lived with the Brashears family until two years before the Civil War. I know Joseph Brashears. He was a son of Zadoc. I can not say when I last saw Joseph. He came to the country to a place now called Tuskahoma. He went from there to the State of Arkansas. He promised his uncle to come back, but took sick and died there. He went to Arkansas to see about some slaves and never came back. His uncle was Vaughn Brashears. William and Turner Brashears, brothers of Joseph, did not come to the Indian Territory. They lived in Alabama. Zadoc did not come. He was killed in a horse race in Alabama. They lived in Sumter County, on the Tombigbee River, where the Choctaws lived. The Brashears I refer to were mixed with Choctaw and French. The French came from the father’s side, Zadoc was French. He married a Vaughn, and she was Choctaw. I do not know what year Joseph came to the Choctaw Nation. I saw him at his uncle’s. I was a slave.
On cross-examination :
I was born in Alabama, and lived there seven or eight years: was then taken to Mississippi, on Yazoo River. I am sure that I lived in Sumter County. It is in the southern part of the State. I was told by my old master that I came from Sumter County, Ala.
In response to commissioner:
I do not know in what year Zadoc was killed. It was after I left Alabama. His brother Turner told me.
Cross-examination continued :
I knew Joseph Brashears. We played boys together. I think he was born in Alabama. He was older than me. When I left Sumter County and went over on the Yazoo he was going to school. He went away to school before they brought me from Alabama. I don’t know how long before. I wasn’t old enough, and can’t recollect. I next saw Joseph Brashears in the Choctaw Nation, on the Kiamitia. near Tuskahoma. I did not speak to Joseph, but his uncle told that about him. My master told me he was going to Fayetteville. He also told me that be died there. I know William and Turner were Zadoc’s sons, and so was Joseph. We played boys together. William and Turner were younger than Joseph. They were the sons of young Zadoc. Neither Zadoc came to this country. It was young Zadoc that got killed. Turner told me. Zadoc had a son Turner and also a brother Turner. His brother Turner came out here to the Choctaw Nation. .The children of old Zadoc Brashears was Jesse, Zadoc. Vaughn, and Turner. Young Zadoc’s children were Joseph, William, and Turner.
Redirect examination :
I am a freedman, enrolled and allotted.
In response to commissioner:
Joseph was older than me. I wouldn’t undertake to say how much older. Joseph’s two brothers were younger than he. William was next to Joseph, and Turner next. Turner was older than me. I do no1 know what went with them. We had been here seven or eight years when Joseph came. He had with him some children and women. I can’t say how many children. I don’t know how big the children were. When I last saw him in Alabama he was not married, he was too young. When I last saw Joseph in Mississippi I was a small boy, and when I again saw him in Choctaw Nation here I was nearly grown. When I left Alabama old man Zadoc Brashears was living. The old man of all. There were two Zadocs, old Zadoc and young Zadoc. Both were living, well as I can recollect. Old Zadoc married a Vaughn. They was mighty near full blood. Spoke n little English. Old Zadoc was a French man. I did not hear of young Zadoc’s death until I got out to this country. Turner, old Zadoc’s son. told me he was the cause of his death. Old Zadoc had four brothers. They were all French, and did not have any Choctaw blood as I know of. I do not know whether these applicants are related to those back in Alabama.
Nathan Gray testified as follows:
I am 56 years old. I live at Atoka. I am a freedman. I was born and raised in the Choctaw Nation, in the eastern part, near the Arkansas line, on the Gray farm. I belonged to the Grays. I knew a Mortimer Brashears. He lived across on the river near Poteau. He stopped at the Grays several times. He was on his way to see Turner Brashears, who lived west of us in the Choctaw Nation. It was a little while before the Civil War that I knew him. During two or three years before the war I saw him frequently. He was there at times when he was not on his way to see his people. He and Mr. Gray hunted and gambled together. Mortimer Brashears was 25 or 30 years old. I was about 10 years old. I used to put up his horse, and he sometimes gave me a dime. I got a licking about his horse.
June 27, 1906. Before the commission at Duncan. Ind. T.. Josephine Jones testified that she was a granddaughter of Joseph Brashears; that she always understood she was kin to the Indians, but did not know whether by blood or marriage; that she knew nothing of Joseph Brashears family: that she has always been taught that she had some French blood, and that the name Brashears was French; that she never heard of any Scotch blood in the family; that Vaughn Brashears wanted her to come to the Territory and live, and that she refused to do so; that she was of French and Indian blood”
Note by counsel: The following witness was produced by the commissioner for the purpose of contradicting the testimony of the applicant, the affidavit of James D. Coyle and Lucy Jones attached to the original application, and especially for the purpose of impeaching the testimony of the freedman, Richard Brashears, and upon whose testimony the decision of the commission was based.
November 7, 1896. Before the commission at Blocker. Ind T., Sarah A. Harlan testified as follows:
I was 77 years old last January. My father was Sampson Moncrief. My mother was Sophie Moncrief. I am not sure, but I think my mother died in 1854, in Alabama. Sumter County. Her maiden name was Sophia Brashears. Her father was Zadoc Brashears. Her mother’s name was Susan. I recollect seeing grandfather Zadoc Brashears only once. I don’t know what county he was in when I saw him. I have never heard when he died. He was not living when I left Alabama to come to the Territory. I was a little girl when I saw him, 5 or 6 years old; just a mere recollection. Zadoc Brashears possessed no Indian blood. He was a Scotchman. His wife Susan was a half-breed Indian. She died when my mother was a little girl. I came to Indian Territory in 1850. I do not know the name of my great-grandparents on my grandmother’s side. I was a beneficiary under the fourteenth article of the treaty of 1830. I do not know how many children Susan and Zadoc Brashears had. I only heard of them through my mother. Jesse Brashears was a brother of my mother, Zadoc Brashears, jr.. was a brother of my mother. Vaughn and Turner Brashears were brothers of my mother. She also half sisters, but I don’t know that I can name them allSusan, Elizabeth, Anne, and one more; I don’t recollect her name. Jesse died in Mississippi. He never came to the Territory. I do not know what year he died. Anne died in AlabamaI do not know when. Elizabeth died In Alabama when I was very small. Susan died in Jackson, Miss.; I do not know when, but before I came to the Territory. Turner came to this country and died. I don’t know when he settled, but he died out here before I came. He never had any descendants. His wife died in Alabama. Vaughn came to this country and died here. I saw him once after I came here: he died somewhere along in 1852 or 1853. He has one descendant that I know of living now, a boy. named Turner. Uncle Zadoc died in Alabama after my birth, but I don’t recollect anything about it. I was a mere child. I can’t nay how long before I came to the Territory he died. Zadoc was married at the time of his death. Hie wife’s name was Anne: I do not know the maiden name He lived near Moscow, on Bigbee River. I visited his home after his death His children were Turner. John, and William (who were twins), and Oleans. He had no other children. Turner died near Moscow when young. John died when a boyjust a little boyin Alabama. William died. Oleana moved with her mother to Texas and I lost track of them. I never heard of Joseph. I never heard of Mortimer Brashears. I never heard of Sarah Vaughn. I have kept up tolerably well with my mother’s brothers and sisters. Outside of that I know nothing. When I saw Vaughn Brashears here in the nation he was Poteau. I have heard it talked of that he brought here a slave by the name of Richard Brashears. If any of the sons of Zadoc lived on Yazoo River, as stated by Richard, I don’t know it. I don’t know whether Zadoc Brashears was killed in a horse race, as stated by Richard. He was shot at a horse race, is what my mother told me. His wife’s name was Anne. The two Zadocs, my grandfather and uncle, are the only ones by that mime I ever heard of. I got my information from my mother. I didn’t know very much about my relatives. Grand-father Zadoc had no Indian blood. He was Scotch. I testified In the case of Joseph Moncrief that Zadoc Brashears married Susan Vaughn. That was her maiden name. I said she was a half-breed Choctaw. That is correct.
Cross-examination by attorney for applicants
I have always heard them say that Dick Brashears was a slave of Vaughn Brashears. In 1853 or 1854, when I went back to visit my mother, she told me all about her sisters and brothers, and there was no Joseph in her brothers: and if It had been so she would have told it. I did not ask her about a Joseph. It is correct, as testified by Dick Brashears, that my mother’s brother was shot and killed in a horse race. It is correct, as testified by Richard Brashears, that Vaughn Brashears came to the Territory and lived and died here. It is correct, as testified to by Richard Brashears, that Turner Brashears came to the Territory and lived and died here. It is correct, as testified to by Richard Brashears, that. Jesse was the oldest child. I never heard of one of the children going away to school, as stated by Richard Brashears. It is correct, as stated by Richard Brashears that Zadoc, sr.. Vaughn, and Jesse Brashears lived in Sumter County. Ala. All the Brashears who lived there were Indians except the old original Brashears. All that came, from there were of Indian descent. I only had two come. It is correct that all that died there and all that came here were of Indian descent. There was only two that came. There were no families living there during my time by the name of Brashears who did not have Indian blood. If Napoleon H. Brashears can connect himself with Turner and Vaughn Brashears he would be an Indian, but I have never been able to connect him.
January 20, 1907. The commissioner rendered a decision wherein he very briefly summarizes the testimony of the witness Sarah A. Harlan, and then states:
I am further of the opinion that the evidence clearly establishes that the Joseph Brashears through whom the applicants herein claim descent was not a descendant of Zadoc Brashears. sr., and Susan Brashears (nee Vaughn), and that none of the applicants herein are possessed of Choctaw blood.
I am further of the opinion that inasmuch as none of the applicants herein are possessed of Choctaw blood, the enrollment of the applicants whose names appear upon the 1896 Choctaw census roll was without authority of law, and that under the provisions of the net of Congress approved June 28, 1898 (3O Stats., 495), their imines should lie stricken there from.
January 28, 1897. Record forwarded department. March 4, 1907. Secretary of the Interior addressed the following letter to the commissioner.
In accordance with the opinion of the Attorney General of the United States of February 19, 1907 (I. T. D.. 4564), In the consolidated case of William C. Thompson et al., your decision of January 26, 1907, denying the application for the enrollment of Napoleon B. Brashears et al. as citizens of the Choctaw Nation Is hereby affirmed.
A copy of Indian Office letter of February 27, 1907 (Land 10771), recommending the above action, is inclosed.
The papers in the case and a carbon copy thereof have been sent to the Indian Office.
Respectfully, E. A. Hitchcock, Secretary.
Statement by Counsel
Counsel for claimants assert that the record in this case as forwarded to the department January 28,1907, received no consideration as is evidenced by the Secretary letter wherein he states that the commissioner’s decision is affirmed in accordance with the opinion of the Attorney General of February 19, 1907, which opinion related to cases that had been in the United States and citizenship courts while this case had never been in those courts, the applicants having stood upon their tribal enrollment and their applications to the Commission to the Five Civilized Tribes under the act of June 28, 1898.
Counsel also directs attention to the fact that no witness testified that these applicants were without Indian blood, and the statements of applicants as to their Indian ancestry are strongly corroborated by their witness and especially by an old freedman, whose testimony is corroborated in the main by one witness upon whose testimony the commissioner says it is clearly established that none of the applicants are of Indian blood.
Counsel submits that the holding of the commissioner that the tribal enrollment of applicants was without authority of law was warranted by the facts and contrary to previous holdings of the department, and that Congress should restore them to the rights conferred upon them by the tribal officials and to which they are justly entitled.
Those entitled to enrollment are: Napoleon B. Brashears, La Fayette Brashears, Arthur Brashears, Fred Brashears, Logan Brashears. Amanda J. Freeze, Damon Freeze, Raymond Freeze, Ruby Freeze, Earl Freeze, Sarah E. Scott. John C. Salmon. Fannie Salmon, Lois Salmon, Ida M. Duncan, Dora M. Duncan, Francis E. Duncan, Leo Lester Brashears, Floyd Lafayette Brashears, Alvey Fred Brashears, and Myrtle Viola Duncan as citizens by blood, and Mary J. Brashears and Ollie Duncan as citizens by intermarriage.
(Twenty-three in all.)
Respectfully submitted.
Ballinger & Lee and Walter S. Field.