Mr. Chairman and gentlemen of the committee, this matter pertains to the enrollment of citizens of the Choctaw and Chickasaw nations, persons of mixed Indian and Negro blood. They claim the right to enrollment as citizens under the treaty of 1830, under which the land was granted to the Choctaw Nation. 

The terms of Article II of that treaty are: “Article II. The United States under a grant specially to be made by the President of the United States shall cause to be conveyed to the Choctaw Nation a tract of country west of the Mississippi River, in fee simple to them and their descendants, to inure to them while they shall exist as a nation amid live on it,” and it then goes on to describe the land, as follows: Beginning near Fort Smith, where the Arkansas boundary crosses the Arkansas River, running thence to the source of the Canadian Fork; if in the limits of the United States or to those limits; thence due south to Red River and down Red River to the west boundary of the Territory of Arkansas; thence north along that line to the beginning. The boundary of the same to be agreeably to the treaty made and concluded at Washington City in the year 1825. The grant to be executed as soon as the present treaty shall be ratified.”  

The Chickasaw Nation at a subsequent date purchased a property right in the Choctaw Nation, taking their property identically the same as the Choctaws had acquired their title.  

In 1866 the question arose of the freeing of the slaves then held by the Choctaws and Chickasaws absolutely, and a joint treaty was entered into between the Government of the United States and the Choctaw and Chickasaw nations whereby the slaves were given their freedom, and it was specifically provided in that agreement that the slaves should be adopted into the tribe, with all the rights, privileges, and immunities of any other citizens of those nations except as to participation in the tribal funds and lands. The slaves were to be given not to exceed 40 acres of land each.  

This case now arises out of the intermarriage between the Choctaws and Chickasaws and the ex-slaves, and relates to the descendants of those marriages. The rights of these people have never been denied directly by legislation. On the contrary, in the act of 1896 Congress directed the Commission to enroll these people in the act of 1897 Congress directed the Commission to enroll these people. In the act of 1898 Congress again directed the Commission to enroll these people, under the laws passed in preceding years.  

Senator LONG.          These descendants?

Mr. BALLINGER.    Yes, sir, these descendants.

Senator LONG.          What is the language?

Mr. BALLINGER.    I have it right here. This is the provision of the act of 1896, relating to this subject:

so admitted and enrolled: Provide, however, That such application shall be made to such commissioners within three months after the passage of this act. The said Commission shall decide all such applications within ninety days after the same shall be made. That in determining all such applications said Commission shall respect all laws of the several nations or tribes not inconsistent with the laws of the United States, and all treaties with either of said nations or tribes, and shall give due force and effect to the rolls, usages, and customs of each of said nations or tribes.

The treaty of 1830 provided for their enrollment. That is, it provided that they should take equally with all other Indians in the distribution of the property. The property was given to the people then members of the Choctaw Nation and their descendents; given by the treaty of 1830 and the patent issued in 1842. This act—the act of 1896—directed the Commission to enroll those who were entitled to enrollment under the laws and treaties of the United States .

Senator BRANDEGEE.     For the purpose of your inquiry, is it necessary to determine now whether or not these people are entitled to go on the roll?

Mr. BALLINGER.                I take it that that is a matter that may provoke considerable discussion, and that it is matter that may properly be postponed to some subsequent day, when you may take it up in Washington or elsewhere.

Senator LONG.          Just state the points of contention between the two sides on this proposition.

Mr. BALLINGER.    The Proposition in brief is this:  That the Commission construed the law of 1898 to mean that descendants of intermarried Negroes and Indians took only the status of the servile parent, namely, the Negro, and accordingly enrolled them as freedmen. As a result of that construction we find a peculiar condition of affairs existing, by which a father appears upon the roll of citizens by blood, while his children appeal upon the freedmen roll; and by which a father and mother appeared upon the roll of citizens by blood with some of the children upon that roll and others upon the freedmen roll; and so on all through.

Senator LONG.          How could that happen?

Mr. BALLINGER.    I cannot understand.

Senator LONG.          How could a citizen father and a citizen mother have children on the freedmen’s roll?

Mr. BALLINGER.    I am not prepared to answer that, Senator.

Senator LONG.          You state it as a fact that that condition exists?

Mr. BALLINGER.    I state it as a fact that that condition does exist. I have the records here and will offer them as exhibits at the proper time.

I desire to read the act of 1898. These were the instructions Congress gave the Commission in that act:

   That in making rolls of citizenship of the several tribes as required by law the Commission to the Five Civilized Tribes * * * is authorized and directed to make correct rolls of the citizens by blood of all the other tribes, eliminating from the tribal rolls such names as may have been placed thereon by fraud or without authority of law, enrolling such only as may have lawful right thereto, and their descendants born since such rolls were made with such intermarried white persons as may be entitled to Choctaw or Chickasaw citizenship under the treaties and laws of said tribes.

    Under that act the Commission sent out notices to the people of the Choctaw and Chickasaw nations to come in. For what purpose?   For the purpose of examination and identification. Parties of mixed Indian and Negro blood appeared before the committee at the times stated in the notices and at the places specified in the notices. When persons of mixed Indian and Negro blood applied to the Commission for enrollment as citizens, the Commission directed them to proceed to another place where freedmen only were enrolled, and they there examined these parties solely as to their descent from their Negro ancestors. I have the records here and will offer them at the proper time to sustain these statements.

   Having made a record of the descent of these parties from Negroes, those records were not transcribed for four years, and they were not accessible to either the applicant or his attorneys until a little over a year ago, and then only by direction of the Secretary of the Interior. In the meantime Congress passed a law under date of May 31, 1900 , in which it was provided that the Commission should not there after receive any application for the enrollment of persons. These people were barred then from making application and the Commission construed the appearance of those parties before it under the act of 1898 as an application how they reached that conclusion is a mystery to me, but they did, and they refused to consider an application for the transfer of the names of these parties from the freedmen roll to the roll of the citizens by blood. A test case arose—

The CHAIRMAN.     Let me ask you right there, if it will not interrupt you, how many individuals are affected by this proposition of yours, who were placed on the freedmen roll?

Mr. BALLINGER.    Senator, there are between 1,000 and 2.000 persons.

Senator LONG.          Persons that are now on the freedmen’s roll?

Mr. BALLINGER.    Yes, sir.

Senator LONG.          Persons that you claim should be placed on the citizen roll?

Mr. BALLINGER.    Yes, sir.

The CHAIRMAN.     In both nations?

Mr. BALLINGER.    Yes, sir.

Senator BRANDEGEE.        They have had their 40 acres?

Mr. BALLINGER.    They have been allotted their 40 acres of land. When they refused to take their allotments the Commission arbitrarily allotted them 40 acres.

Senator LONG.          If placed on the citizen roll what would they get?

Mr. BALLINGER.    They would then get 320 acres.

Senator LONG.          Not in addition to the allotment?

Mr. BALLINGER.    Oh, no. The freedmen allotment would be canceled. They were entitled to be on the citizen roll long before that. And in addition they would be entitled to share in the tribal funds. They would be citizens, in fact.

A test case was made—the case of Joe and Dillard Perry. The Department held that the descendants of persons of Indian blood, whether the ancestor intermarried with a Negro or with a white per son, was entitled to enrollment under the treaty of 1830 and the patent issued under that treaty.

The CHAIRMAN.     That was held by the Interior Department?

Mr. BALLINGER.    Yes sir. An appeal was taken in that case and it went before the Assistant Attorney-General and two or three of his assistants who sat as a copy of review. They sat for two or three days. Mr. Cornish argued the case before them. Under the law it was held that if these parties had made or attempted to make an assertion of right prior to December 24, 1902 , they were entitled to enrollment as citizens.

                                    There is a little history connected with that case which I will bring out later.

After that decision was rendered by the Department, Mr. Bixby, the chairman of the Five Civilized Tribes Commission, went to Washington and secured the enactment of section 4 in the Five Civilized Tribes bill, which provided that no name should be transferred from the freedmen roll to the roll of citizens by blood unless the record in charge of the Commission—mark you, those were made under the act of 1898, and these persons were denied by the Commission the right to make application for enrollment as citizens by blood—unless those records showed that the party had made an application or attempted to make an application for enrollment as a citizen. Since that time there has not been to my knowledge, and I have made inquiry relative to it, a single case favorably adjudicated by the Commission for the transfer from the freedmen roll to the roll of citizens by blood, but on the contrary, every petition acted on by the Commission to the present time has been denied.

That, in brief, is a statement of our case.

The CHAIRMAN.     What is it that you want?

Mr. BALLINGER.    I want to secure legislation so mandatory in its terms that the Commission will be compelled to transfer these parties from the freedmen roll to the roll of citizens by blood. They are entitled to that by the laws of Congress and the treaties with the United States , and under the constitutions of the Choctaw and Chickasaw nations, and under every act that has ever been passed by any competent tribunal, except the act of April 26, 1906 .

The CHAIRMAN.     In the statement which you have filed before the committee I take it from a careful reading of it that you are claiming at this time that the failure of these people to get upon the roll of citizenship is very largely due, if not to the intentional wrong action, at least to the gross negligence in the performance of duty of certain officers, which you have specified in your statement.

Mr. BALLINGER.    I do, Mr. Chairman. I not only state that it is due to gross negligence, but I charge here and now that it was intentional, and that they have asserted at various times that these parties should not be transferred if they could prevent it.

The CHAIRMAN.     You certainly, Mr. Ballinger are aware of the fact that a charge of that sort against an official of the United States Government is a pretty serious charge to make, and I take it that you would not make such a charge in writing unless you wore prepared by proper evidence to sustain it.

Mr. BALLINGER.    I certainly would not.

The CHAIRMAN.     You have asked the committee to request the presence of certain officers connected with the Government of the United States that you might examine them on these points. Notice has been given to these officers. Some of them are in the room at this time; and if it is your desire to examine them, I think it is the sense of the committee that you now have that privilege.

Mr. BALLINGER.    I should like to call to the stand Mr. Franklin. He is not an officer, but I desire to take his testimony first.

The CHAIRMAN.     Do you want this to be a statement merely or an examination under oath?

Mr. BALLINGER.    I desire it given under oath.

The CHAIRMAN.     Mr. Franklin will be sworn.

Senator LONG.          I should like to ask Mr. Ballinger one question. Do you contend that the Commission adopted a wrong rule for determining citizenship or that they deliberately intended to prevent these persons being placed on the roll after they knew that they were entitled to be there?