Assistant Secretary of the Department of Interior and "approved" by
Secretary Hitchcock clearing understood the question of the legal term
"descendant" and rendered a decision that should have been implemented
to have the complainants of Equity Case 7071; Bettie Ligon et al., vs the
Choctaw and Chickasaw Nations and the Department of Interior transferred to the
"Citizens by Blood" Rolls of their respective nations.
It is not known whether the descendants of Joe and Dillard Perry are
presently citizens of the Chickasaw nation, because the Dawes Final Rolls still
has them listed as Chickasaw Freedmen.
It is also unclear if the Chickasaw Nation has taken the responsibility for
overturning the obvious miscarriage of justice that had the complainants of
Equity Case 7071 and their descendants admitted as "Freedmen" in the
nation, but the following document would shed some much needed light on the
subject and be beneficial for those who are descended from this class of
"Chickasaws and Choctaws" deemed "Citizens by blood."
DEPARTMENT OF THE
INTERIOR,
Washington
,
February 5, 1905
Commission TO THE FIVE CIVILIZED TRIBES,
Muskogee
,
Ind.
T.
GENTLEMEN: November 14, 1904, you transmitted report of
proceedings had and additional evidence taken in the matter of the applications
of Joe and Dillard Perry for their
enrollment as citizens by blood of the Chickasaw Nation instead of Chickasaw
freedmen.
November 26, 1904 (Land, 80819), the Acting Commissioner of Indian Affairs
reporting in the matter recommended that Joe and Dillard Perry be declared to be citizens by blood of the
Chickasaw Nation, and that the Department direct the transfer of their names
from the roll of Chickasaw freedmen to the roll of Chickasaws by blood. A copy
of said letter is inclosed (sic).
January 26, 1905, the Department referred your report to
the Assistant Attorney- General for this Department for his opinion as to
whether Joe and Dillard Perry were
entitled to enrollment as citizens by blood of the Chickasaw Nation, and in an
opinion therein rendered February 21, 1905, approved by the Secretary of the
Interior the same day a copy of which opinion is herewith inclosed (sic) the
Assistant Attorney General held that Joe
and Dillard Perry are entitled to enrollment as citizens by blood of the
Chickasaw Nation.
In accordance with said opinion the Department holds that said applicants
are entitled to enrollment as citizens by blood of the Chickasaw Nation, and you
are directed to transfer the names of Joe Perry and Dillard Perry from the
Chickasaw freedmen roll to the roll of Chickasaws by blood, and cancel their
enrollment as Chickasaw freedmen.
Respectfully,
Thos. Ryan,
Acting
Secretary.
DEPARTMENT OF THE INTERIOR,
OFFICE OF THE ASSISTANT ATTORNEY-GENERAL
Washington
,
February 1, 1905
.
The SECRETARY OF THE INTERIOR.
SIR: I received, by reference of
January 26, 1905
, with request for opinion thereon, the record in the cases of Joe
and Dillard Perry for enrollment as citizens by blood of the Chickasaw
Nation. In connection therewith my attention is directed to the decisions of the
Choctaw and Chickasaw citizenship court in the cases of Molsie
Butler and T. J. Minor.
Joe and Dillard
Perry were born in the Chickasaw country of Eliza
Perry, who was a Chickasaw freedwoman, shown by the evidence to be one-half
negro, one-quarter white and one-quarter Indian blood, born in the Choctaw
country about 1874. It is not shown whether her parents were married, but both
were freedmen and her father one-half Indian, her mother one-half white. As both
parents were of the freedmen class, whether they were married or not is
immaterial. Eliza first married one Mose
James, a Creek, without license, but by a clergyman, as she describes it
“out of the Bible,” unlicensed marriage by religious ceremony. He deserted
her two months later, and two years thereafter, hearing nothing from him, not
being divorced, she took up with Charley
Perry, a recognized Chickasaw citizen by blood, and they cohabited as
husband and wife until after Joe was
born. They were arrested for unlawful cohabitation and
taken to
Paris
,
Tex.
, where they were advised to marry, and did so, and the prosecution was dropped.
She informed the man who performed the second ceremony of the former marriage,
he, learning from her the circumstances, was of opinion that it was invalid,
proceeded with the ceremony. They returned to their home, were recognized in
tile neighborhood as husband and wife, and the second son was born. Perry
spoke of Eliza as his wife, of the boys as his children, and they continued
to cohabit to his death in 1896. If the proportions of blood are rightly given,
the applicants are five-eighths Chickasaw, one-fourth negro, and one-eighth
white blood. The
children were not recognized by the father’s relatives. Their
maternal grand mother applied for and obtained their enrollment as Chickasaw
freedmen, which was approved
December 12, 1902
, and allotments were taken for them as such. In August, 1904, application was
made to transfer them to the roll of Chickasaw by blood, and September 14. 1904,
the Department instructed the Commission to the Five Civilized Tribes allow them
thirty days to adduce evidence. Notice was given to both parties, and at a
hearing in which both participated the above facts were elicited. Upon the facts
there seems to be no controversy. Counsels on both sides have submitted briefs.
The contentions of counsel seem to be, on part of the
applicants, that the marriage of applicants parents is well proven and that the
applicants have legitimate right to succession to their father, a Chickasaw
citizen by blood; and, on part of the nation, that the marriage is not well
proved, but that, were the proof sufficient, intermarriages of negroes and
Chickasaws are prohibited and void. Molsie
Butler’s case is cited, claimed to be identical, and is relied upon.
In that case the facts as shown by a certified copy of the opinion before
me, were that Molsie was born of the intermarriage, after the war of the
rebellion, of Sauna Mahardy, a former
negro slave, and Aleck Foster, a
Choctaw Indian, when no law forbade such intermarriage. Molsie was thus half
negro and half Choctaw. The court held that— “The lands embraced in what is
known as the Choctaw and Chickasaw Nation, in the
Indian Territory
, were ceded to the members of these two tribes and their descendants by the
United States Government. * * * No persons except those mentioned in the treaty
were to take any part of these lands; but there is a provision in the thirty-
eighth article of the treaty of 1866 conferring rights upon white people who
have married Choctaw or Chickasaw Indians, but there is no provision in any
treaty with these tribes, that I have been able to find, conferring any rights
upon colored persons or their descendants who may have married an Indian.”
In Minor’s
case the court found— “The evidence shows that Lucy Seely, the
plaintiff’s grandmother, was part Chickasaw and part negro. That her
grandfather was a full-blood Chickasaw. Consequently, Sarah
Seely, their daughter, and mother of the plaintiff, was more than half
Chickasaw. That Sarah’s husband,
and plaintiff’s father, T. J. Minor,
Sr. is a white man. Therefore, the plaintiff is one-half white and more than
one-quarter Chickasaw. There is no proof that his mother was ever held as a
slave, and the evidence is not conclusive that her grandmother was ever so held.
* * *‘,
There is no proof in this case that Bob Seely and Lucy were
ever married, but the testimony shows they lived together as husband and wife.
It is contended by the nations that the marriage, at best, was but a common-law
marriage, and no common- law marriage was recognized in the Indian Territory
until 1889, which was long after the relation of these people was terminated by
the death of Bob Seely. Taking this
to be true, then, if there was no marriage, the children of Lucy
were illegitimate, begotten by a full-blood Chickasaw Indian.
This court has held in a case (Althea Paul et al. v.
Choctaw and Chickasaw Nations) that when there was a natural child begotten by a
Chickasaw Indian on a white woman, the child was entitled to enrollment as a
member of the tribe by reason of the Chickasaw blood of his father.
This court is asked to follow in this case the decision heretofore
rendered in the case of Molsie Butler v.
The Choctaw and Chickasaw Nations, in which we held that an applicant for
citizenship, whose father was a Choctaw Indian, and whose mother was a negro,
and, until emancipation, was a slave, was not entitled to citizenship or
enrollment. That case and this are not parallel. There was no claim or proof of
Indian blood on the part of the mother. She was beyond question and entirely a
negro, and unquestionably had been a slave. Here there is testimony that the
mother was possessed of some Chickasaw blood, and it is not proven she was a
slave. The legal presumption, she having some Indian blood, is in favor of her
freedom, and the burden would rest on the defendants to show that the contrary
was true, which they have not conclusively done.
The blood of T. J. Minor, Jr., was thus shown to be one-half white, one-eighth
negro, and three-eighths Choctaw. The distinction is not made on the quantum of
negro, white, or Choctaw blood, but on the fact that Molsie Butler’s negro descent was from a slave grandmother, while
Minor’s was presumably from a free negro woman. As Molsie was one-half Choctaw and half freedman, born of a legal
marriage, the disqualifying contamination of her greater quantum of Choctaw
blood was either due to the former servitude of her mother or else the higher
merit of Minor’s three-sixteenths less quantum of Indian blood was due to
white infusion by intermarriage. But the white intermarriage could work no
rehabilitation of Choctaw blood in one of partial negro blood unless the
mixed-blood spouse was entitled to be considered a Choctaw. The contamination of
the greater quantum of Choctaw blood must, therefore, have been considered as
due to the former servitude of Molsie’s grandmother, not to the quantum of
negro blood.
This is the necessary deduction from an analysis
of the two cases. No such fact is shown in the present record. There is no proof
that Eliza’s WILLIAM mother was
ever a slave, and the case is therefore identical with Minor’s,
except as to the quantum’s of the various bloods, the applicants here having
more Indian, less white, and one-eighth more negro blood. The logical basis of
the Butler said Minor
decisions being, as shown, the contamination of servile descent, not of negro
blood, and the meritorious blood being Indian, the present case, if decided by
the rule of those cases alone, entitles the applicants to enrollment, as they
have more Indian blood than Minor,
and are not shown to have servile descent.
It is proper, however, here to notice that I am unable to see any basis in
the treaty of 1866 or in the legislation of Congress that justifies the
distinction made that descent from a former slave negro works any greater
contamination of blood than descent from a free negro, and can not but regard
the two decisions as irreconcilably at variance— the distinction drawn by the
court unfounded, and the Butler case
so shaken by that in the Minor case
as to be of no weight or authority for decision of other cases, even though it
may conclude the particular parties to the record.
As to the other point, I deem the marriage sufficiently proven. By
section 31 of the act of
May 2, 1890
(26 Stat. L., 81, 94—95), certain of the laws of
Arkansas
, and among others the laws relating to descents and distributions and to
evidence and to marriages, chapters 49. 59, 103, as shown in
Mansfield
’s Digest of 1884, were extended to
the
Indian Territory
, saving that (ib., 98) Indian marriages theretofore contracted in accordance
with tribal laws or customs were declared valid and their issue made legitimate.
As to evidence or proof of marriage, it was held in Kelly’s Heirs v.
McGuire (15
Ark.
, 555) that:
“Reputation or hearsay is admissible in all matters of pedigree; and so,
the repeated declarations of the father that he had married and by the marriage
had two children, naming them; his recognition of them as his legitimate
children, their recognition of him as their father, and of each other as brother
and sister; and the fact that the marriage and legitimacy of the children were
known and spoken of in the family, are sufficient to prove the marriage of the
father and the legitimacy of the children.”
It would not, however, be permissible by
reputation to prove a marriage prohibited by law and incapable by any proof to
be rendered valid.
March 16, 1858
, the Chickasaw legislature prohibited any person other
than a negro from “cohabiting with a negro,’ imposing penalties of fine and
imprisonment for such offense. Whether this by implication should be construed
to prohibit and invalidate such an intermarriage, or whether it even subjected
one contracting such a marriage to the penalty, need not here be considered, as
it imposed no disability of blood upon the innocent issue of such cohabitation
or of such marriage. A statute of this kind can not by mere implication or
construction be extended to impose upon innocent issue a contamination of blood
not expressly imposed by the statute.
The treaty right was to the Choctaw
and Chickasaw nations and their “descendants.” Descendants, as pointed out
in the case of James W. Shirley, is a term of wider significance than heirs or
legitimate issue, and includes those springing from an ancestor, whether
legitimate issue or not. The descent of the applicants is fully and indubitably
shown to be from Charles Perry, a Chickasaw by blood, recognized by him and born
of a union that he and Eliza evidently regarded as a lawful one, openly avowed
and by the Chickasaw Nation tolerated, which it did not compel him to abandon or
impose the penalties of its law upon him for contracting and observing. That law
properly enough imposed no penalty of contamination of blood upon the innocent
issue of such union. I am therefore clearly of the opinion that applicants are
entitled to be transferred to the roll of Chickasaws by blood.
Very respectfully,
FRANK L.
CAMPBELL
,
.
Assistant Attorney-General.
FEBRUARY 21, 1905
.
Approved.
E. A. Hancock,
Secretary.
Document submitted and transcribed by Terry Ligon
