Erroneous Enrolling of Petitioners
[ Home ] [ Up ] [ Feedback ] [ Contents ] [ Search ]

ERRONEOUS HOLDING OF COMMISSION IN ENROLLING PETITIONERS HEREIN AND ITS ATTITUDE AT THIS TIME

The Commission, in passing upon the rights of petitioners herein who filed written applications for enrollment as citizens by blood under the act of June 10, 1896, denied the applications, assigning no reason therefor(sic) and with the following record entry only:  

Application denied without prejudice to rights as freedmen. (See Bixby letter to Secretary, June 26, 1906, Exhibit 5)  

The Commission did not commence to determine the rights of per- Sons examined (under the act of June 28, 1898 ) in the field during the years 1898 and 1899 until January 1, 1902 . (See report of Secretary for 1902, p. 191) It then took the meager examination records herein-above referred to and determined the rights of applicants who were possessed of Indian and negro blood solely as to their descent from ex-slaves, and did not put in writing any explanation of its judicial findings.

 On February 21, 1905 , the Department for the first time passed on the rights of these parties in the test case of Joe and Dillard Perry. It held that any descendant of a Choctaw or Chickasaw by blood, who had continuously resided in the nations, was not disqualified from enrollment by reason of negro blood. That opinion was affirmed on review on November 11, 1905 , and reaffirmed on September 26, 1906 , and has never been reversed by that office.

 When that decision was affirmed November 11, 1905 , adjudication of all cases of petitioners herein was suspended and remained suspended until after the passage of the act of April 26, 1906 , section 4 of which imposed a new qualification which destroyed their rights.  

Now, what was the precise holding of the Commission by which petitioners were held to be entitled only to enrollment as freedmen?  

The fact that a child was born to a mother who was descended on either side from a person formerly held in slavery by the Choc taws or Chickasaws, although the mother was born free and was of seven-eighths Indian blood, was held by the Commission as sufficient to disqualify her and likewise her children by a full-blood Choctaw or Chickasaw Indian father to enrollment as citizens of either of said nations on the theory that the negro blood polluted and contaminated the Indian blood; the blood thus being contaminated, as held by the Commission, rendered them of servile descent, and as such, under the antibellum(sic) custom in the slave States, their children took only the status of the mother and were negroes, and negroes only, and took no property rights by reason of their fathers’ status as an Indian. The Commissioner of Indian Affairs informs counsel that such holding by the Commissioner is in accord with the views and policy of his office at this time.  

Counsel respectfully submit that this process of reasoning is an abuse of intelligence; that the child born to free persons can not be contaminated by any strain of blood from an ancestor once held in slavery; that no such contamination does exist; but that even if it did exist it could not bar them of property rights. The contention of the Commissioner to the Five Civilized Tribes, and the Indian Office, that a child born to free parents takes only the status of the mother because she is possessed of some negro blood is a legal absurdity, as this principle applies only to slaves and animals. Bouvier, in discussing this question, says the maxim:  

Partus sequitur ventrem.—The offspring follow the condition of the mother Is the law in case of slaves and animals, but with regard to freemen, children follow the condition of the father. (Broom Max., 516; 13 Mass. , 551; 18 Pick., 222; 85 Ala. , 605.)

 This proposition of law, as enunciated by Bouvier, was strictly adhered to by Mr. Justice Story in delivering the opinion of the Supreme Court of the United States in the case of Shanks v. Dupont, reported in 3 Peters, 242, and has been steadfastly adhered to in the decisions of both the Federal and State courts to this day.  

In the case of the United States v. Ward, reported in the 42 Fed. Rep., 320, the court held that as Ward’s father was a negro, notwithstanding the fact that his mother was an Indian, as he was born of free parents he took the status of his father, and the court further says:  

The statutes of the United States nowhere define an “Indian.” As a matter of fact, the defendant is no more an Indian than he is a negro, and no more a negro than he is an Indian. In the ease of U. S. v. Sanders (Hemp. 486) the court held that the quantum of Indian blood in the veins did not determine the condition of the offspring of a union between a white person and an Indian, but further held that the condition of the mother did determine the question, and the court referred to the common law as authority for the position that the condition of the mother fixed the status of the offspring. In the subsequent case of Ex parte Reynolds (5 Dill., 403), the court said that the first point decided in the Sanders case was sustained by the common law, as also the last point, if applied to the offspring of a connection between a freedman and a slave. But in Ex parte Reynolds the court pointed out that—  

 “By the common law this rule is reversed with regard to the offspring of free persons. Their offspring follows the condition of the father, and the rule, partus sequitur patrem, prevails in determining their status. (1 Bouv. Inst., p. 198, P., 502; Ludlam v. Ludlum(sic), 31 Barb. 486; 2 Bouv. Law Dict., 147; Shanks v. Dupont, 3 Pet., 242.) This is the universal maxim of the common law with regard to freemen—as old as the common law, or even as the Roman civil law, and as well settled as the rule partus sequitur ventrem—the one being a rule fixing the status of freedmen, the other being a rule defining the ownership of property; the one applicable to different political communities or States, whose citizens are in the enjoyment of the civil rights possessed by people In a state of freedom, the other defining the condition of the offspring which had been tainted by the bondage of the mother. No other rules than the ones above enumerated ever did prevail in this or any other civilized country. In the case of Ludlam v. Ludlam (31 Barb., 486), the court says: ‘The universal maxim of the common law being partus sequitur patrem, It is sufficient for the application of this doctrine that the father should be a subject lawfully and without breach of his allegiance beyond sea, no matter what may be the condition of the mother.’ The law of nations, which becomes, when applicable to an existing condition of affairs in a country, a part of the common law of that country, declares the same rule. Vattel, in his Law of Nations (p. 101), says:

‘As the society can not exist and perpetuate itself otherwise than by the children of the citizens, these children naturally follow the condition of their fathers and succeed to their rights. * * The country of the father is therefore that of the children, and these become true citizens merely by their tacit consent:’ Again, on page 102, Vattel says: ‘By the law of nature alone, children follow the condition of their fathers and enter into all their rights.’ This law of nature, as far as it has become a part of the common law, In the absence of any positive enactment on the subject, must be the rule In this case.’

[ Home ] [ Up ]

Copyright © 1999-2009 Estelusti Foundation
Last modified: June 13, 2009