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Chronicles of Oklahoma
Volume 16, No. 4
December, 1938

Loren N. Brown

Page 425

As a part of the program of terminating the separate tribal existence of the Five Civilized tribes of Indians in Indian Territory, there was established, in 1893, a commission to treat with them with the view of inducing the Indians to take their land in severalty and give up their separate tribal existence. Preliminary negotiations were fruitless and Congress felt called upon to pass legislation giving the Commission, known as the Dawes Commission, additional powers. Among such acts was one passed on June 10, 1896 which gave the Commission extensive powers in the preparation of tribal rolls. It provided that the Commissioners were to accept any existing citizenship rolls, prepared by the nations and were authorized to receive applications from any claiming rights of citizenship, therein, whose names did not appear on such rolls, for a period of ninety days. Decisions were to be reached, by the Commission, on all such applications within another ninety-day period. Following such decisions, the applicants, or the nations involved, were to be permitted an appeal to the federal courts in the Territory, the decisions of the latter to be final, when rendered.1

Following the passage of the act, the Dawes Commission, which had been in Washington, District of Columbia, returned to the Territory, and started work on citizenship matters. Headquarters were established at Vinita, and applications soon began to come in, from those who claimed a right to be put on the rolls. According to the provisions of the law, only a limited time could be used in hearing such applications, then a date for decisions was determined, making it necessary that the process be

1United States Statutes at Large, XXIX, 321 (Hereafter cited, 29 Stat.); C. J. Kappler, Indian Affairs, Laws and Treaties, I, 334 (Hereafter cited, I Kappler); T. Bixby, comp., Laws, Decisions, and Regulations Affecting the Work of the Commissioner to the Five Civilized Tribes, 12 (Hereafter cited, Bixpy).

Page 426

speeded from the first. Confronted with this necessity, the Commission was not long in organizing its work.

On July 8th, the rules of procedure to be followed by those wishing to apply for enrollment as citizens of the several tribes were announced. All applications must be in writing, signed and sworn to, and filed by September 10, 1896, ninety days after the passage of the act. Accompanying each one, must be evidence in the form of affidavits, depositions, or documents to establish the validity of the claim; and the Commission announced that it would reserve the right to require oral evidence in its presence, in those cases where it should be deemed necessary. The Commission promised, further, that it would make every effort to have all cases passed upon, and decisions ready, by December 10, 1896, the date set by the citizenship law for the completion of its task.

Fearful lest they be left off the rolls, the intermarried and adopted white citizens of the nations, particularly the Choctaws, worked independently to prepare rolls of that group. The Choctaw Intermarried and Adopted White Citizens Association's board of Directors met at South McAlester on August 6th, and decided to prepare such a list to present to the Dawes Commission. They invited all such citizens to join their association by paying five dollars and providing adequate proof of their claims. White intermarried women were also eligible. Every precaution was to be taken, to see that no one of doubtful citizenship should be enrolled. An office was opened at South McAlester for the reception of applications and attorneys were retained to prepare the rolls.2

There was a lack of cooperation, however, on the part of the tribes, in submitting their rolls to the Commission for its action. This seemed to be partially due to the fact that the nations resented the interference of the federal government in a prerogative that they had considered theirs alone, and partialy to the absence of adequate lists in the most of the nations. One glaring example of this latter, was the complete absence of any roll of the Chick-

Page 427

asaw freedmen, none having ever been prepared, since they had never been given any political status by that nation. On August 8th, requests were dispatched to both Chief Jefferson Gardner, of the Choctaws, and Governor Palmer Mosely of the Chickasaws, asking that the rolls be turned over, but both letters were ignored. Upon failing to hear from the executives, copies of the letters were forwarded to their successors in office. The one to Green McCurtain, new Choctaw chief, was mailed on October 10th, and the one to R. M. Harris, Governor of the Chickasaws, on the 14th. On October 15th, the former wrote that he had turned the request over to the National Agent, with an order that the desired information be furnished, immediately.3

Both nations had, in the meantime, passed acts creating census commissions, the bill for the Choctaw Nation being passed on September 18, 1896. It provided a commission of three, to work in the Choctaw Nation, with three more to enroll the Choctaws, residing in the Chickasaw country. They were to prepare three distinct rolls; one of the citizens by blood, another of intermarried whites who had been received into the tribe, and a third, of all Negroes who were living in the nation at the time of the Fort Smith conference in 1865, together with their descendants. The rolls were to be delivered to the Principal Chief on, or before, October 20, and were to be subject to revision by the next General Council.4 The provision for separate rolls caused some to feel that an attempt would be made to confine participation in allotment to those citizens who held their places on the rolls through the fact that they were of Choctaw blood.5 The Chickasaw roll was to include all citizens by birth, adoption, or marriage, with no mention of freedmen. Their commission was to have power to take evidence for use before the Dawes Commission in citizenship matters, that were already arising.6

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Using a report that the Choctaw Commission was refusing to enroll many Indians by blood, of unquestioned right, who were not of their political affiliation, McCurtain refused to recognize the validity of their work and secured the passage of another act on October 30th, for a commission of five from each of the three districts, to enroll all the Choctaws within ten days.7 A subsequent act, approved November 11th, provided that a copy of this roll should be turned over to the Dawes Commission, immediately upon completion.8 By early November, the Chickasaw Commission had completed its work and turned its rolls, of about four thousand five hundred names, over to the Council, who were preparing a roll to be turned over to the Dawes Commission.9 These tactics were the occasion of much delay to the federal group and the hasty preparation of the rolls, with the political charges arising, caused the conviction that the Commission should have its powers widened to include that of passing upon the validity of names appearing on the rolls.

The nations, also, took steps to protect their interests against the horde who were seeking admission to their tribes through the Dawes Commission. Contracts were entered into with the legal firm of Stuart, Gordon, and Hailey, South McAlester, to represent the Choctaws in these matters, while W. B. Johnson, Ardmore, together with H. F. Paine, was given the task of defending the Chickasaws.10 After the period of filing applications had expired, arguments were heard, on the cases, at Vinita. The Commission, owing to the shortness of the time allotted them, was forced to make a rule prohibiting the cross-examination of witnesses. September 15th was the date set for Choctaw cases, and an array of legal talent was on hand. The nation conceded the right of intermarried whites to be enrolled, but held that preponderance of blood should be necessary in the determination of citizenship by blood.11 The attorneys were capable and excellent arguments were advanced during the course of the hearing.

Page 429

No decisions were rendered until after October 10, 1896, and then no public announcements were made until after the interested nation, and the applicant, had been advised of the decision. Many knotty problems presented themselves in the settlement of the numerous cases before the Commission. Both nations had laws that a white man who secured citizenship through marriage with an Indian would lose such citizenship if the Indian died and the white citizen later married a white person. The Commission, however, refused to accept this rule, holding that it was contrary to treaty stipulations which held that all citizens should have equal rights. It did refuse, however, to recognize the claims of such white wives, and of the issue of such subsequent marriages. Rejection was also made, of the cases of certain Negroes, who had been freed prior to the signing of the Treaty of 1866.12 It was during this period, also, that the matter of the Mississippi Choctaws was presented to the Commissioners. During the time for applications, a case was filed in the name of Jack Amos, et al, by Robert L. Owen, involving this class of applicants, but the Commission dismissed the plea.13

By December 1, 1896, the dead line set in the statute, virtually all cases had been decided and, in the vast majority of them, the claimants rejected.14 In this work, the Commission set the remarkable record of admitting only 2,075 citizens, out of a total of approximately 75,000 applicants. Out of this total, admitted in all five of the nations, 1,202 were Choctaws and 334 Chickasaws.15 While their time had been short, the federal Commissioners had been surprisingly efficient and it is significant that, in the subsequent disputes over the admission of citizens to the Indian rolls, the Indians, themselves, made virtually no criticism against the Commission for its part in that undertaking.

Page 430

But, with the rendering of its decisions, the citizenship controversy was only well under way. Since, according to the Act of June 10, 1896, the federal courts of the Territory were given authority to hear appeals on the part of the persons refused admission to the rolls, or on behalf of the nations, if filed within a period of sixty days after the Commission's decisions had been handed down, those decisions merely paved the way for subsequent litigation. The struggle was only shifted to the court rooms of the Territory, from the councils, of the Commission.

As February 6, 1897 approached, every effort was made to get all appeals perfected, as that marked the expiration of the sixty-day period, following the announcement of the Commission's decisions. Those who had clients were particularly interested in seeing that they were taken care of. As early as January 21, Ralls Brothers, Atoka attorneys, who were handling a large number of cases for claimants, were advertising that all who expected to appeal must get word to them by February 1.16 As a special incentive, Secretary D. R. Francis, of the Interior Department, issued an order on January 22 that all who had not appealed, and were living on, or holding, any tribal lands, although their applications had been denied by the Dawes Commission, would be compelled to vacate all such lands by February 6.17 In addition to those filed for private clients, the nations filed many appeals from decisions in which the Dawes Commission had admitted new citizens to their rolls, until there were about one thousand such cases filed in the United States courts by the expiration of the period of appeal.18

In virtually every case, the appeals against the Choctaws and Chickasaws were filed against one nation only, rather than against the two nations, jointly. This was to be extremely significant in the subsequent history of the cases, due to the fact that the two nations held their lands in common, even though they had separated their governmental entities by the Treaty of 1855.

Page 431

The rules of procedure, governing the hearing of the appeals were similar in both of the courts, and were set forth in an order issued by the Central District at South McAlester on December 26, 1896. It was declared that all records for the appeals must be furnished by the tribunal from which the appeal was taken. A docket fee was to be filed with the papers, and service was to be permitted on either the chief executive of the nation, or upon the attorney-general, with an answer due within thirty days. All the descendants of a common ancestor might have their cases combined in one pleading, but the nation must give a separate answer to each individual in the case. For the Central District, appeals could only be taken at South McAlester, but court was to remain in continuous session there. In order to expedite matters, special masters in chancery would be appointed to hear the cases and report back to the judge of the court. If the courts gained any time by the latter practice, however, as much, or more, time was destined to be lost through a ruling that the master in chancery could receive new evidence and try the case de novo, rather than confine himself to a review of the case as it had been tried before the Dawes Commission.19

In the ensuing hearings, the confusion experienced by the Dawes Commission, during the preceding summer, was intensified in the courts. In addition to hearing the appeals, the dockets were crowded, and virtually all the work had to be turned over to the masters in chancery and the hearings were not as thorough as they might have been. Many cases of fraud were perpetrated before these men, who were not always trained in judicial procedure and practice, and much dissatisfaction on the part of the nations, became evident. This was brought about, largely, by a feeling that many undeserving candidates were being added to their rolls. By the middle of the summer, in the 241 cases appealed by the attorneys of the Choctaw Nation, only 61 decisions had been rendered, affecting the Choctaws and Chickasaws, all by Judge W. H. H. Clayton, of the Central District. From the

Page 432

South McAlester court, thirty-six decisions favored the Choctaw Nation, twenty-one being denied and fifteen dismissed; and, of those admitted, all had been placed on the rolls, previous to the findings of the Dawes Commission, by the Choctaw census commissioners.20

Virtually all the appeals were decided by the federal courts during 1897 and 1898, but frequent incongruities appeared in the decisions, as between the Central District, under Judge Clayton, and the Southern District, at Ardmore, under Judge Hosea Townsend. For instance, judge Townsend held that absentee Indians, dwelling in the "states" could be enrolled, upon filing their applications. Judge Clayton held, however, in the case of Sidney J. Cundiff v. Choctaw Nation, that the purpose of the treaty of removal was to secure the removal of the Indians from the "states," and that the failure of the Nation to remain in possession of their land in the Territory would forfeit their right to the lands given them there. The same rule would apply to individual Indians and they would forfeit their rights upon removal from the Territory. These could only be recovered by return, and then, only in the event that their rights had not been taken from them by Indian legislation. By this decision, he held that non-resident Indians had no right to enrollment. Both were agreed, however, that the nations could set the requirements for marriages that would admit whites to citizenship and that such citizenship, once conferred, could not be abridged at the will of the nations. These principles, together with illustrative cases, were set forth early in 1898 in opinions by both jurists.21

In spite of continued expressions of dissatisfaction on the part of the Indians, the courts proceeded with their work. Green McCurtain pointed out, in his annual message to the Choctaw Council in October, 1897, that the nations were not given an opportunity to confront the witnesses of the applicants and were not given their "day in court," thereby permitting many of the

Page 433

claimants to use fraudulent means.22 Decisions were rendered in cases involving 2,715 Choctaws and 891 Chickasaws during this short time. By these decisions, 1,772 Choctaws and 728 Chickasaws were admitted.23 The percentage of the applicants admitted by the courts was in marked contrast to those whom the Dawes Commission had passed upon favorably in their hearings.24 Since the judgment of the courts was to be final, these newly made citizens, commonly referred to as "court citizens," felt, as did the nations, that 2,500 new members were to be allowed all the benefits of tribal citizenship, including a share in the tribal lands. It appeared to be an unqualified triumph for the large number of territorial attorneys who had represented the applicants in their raid upon the tribal rolls.

But, while many of the Indians were resigned to this addition to their rolls, there were some who refused to admit that the courts, and the Dawes Commission, had a legal right to usurp the tribal function of making Indian citizens, holding that the law of 1896, conferring that power upon them was unconstitutional. Since the Indians were not citizens of the United States, however, they had no recourse to the federal courts without further Congressional action, so they went to work and secured a provision in the Indian Appropriation Act of July 1, 1898, permitting them to appeal their citizenship cases directly to the United States Supreme Court, on the grounds of the constitutionality or validity of any legislation affecting citizenship. The act provided that such appeals must be perfected within 120 days and that the Dawes Commission was not to be enjoined from the continuation of any phase of its work.25

Under this new power, a number of cases were appealed to the Supreme Court,26 and on May 15, 1899, that tribunal com-

Page 434

bined the cases of Choctaw Nation v. F. R. Robinson and Chickasaw Nation v. Richard C. Wiggs, et al, with that of William Stephens, et al, v. Cherokee Nation, and rendered a decision in all three. The decision of the court, stated in an opinion written by Chief Justice M. W. Fuller, was that since appeals were allowed in cases between the United States and Indian tribes, only on questions of constitutionality or validity of legislation, the same rule would apply between such tribes and individuals, hence, the court was not called upon to pass on the merits of the cases, as such. The Court held that the power of Congress to transcend treaties by statutes had come to be accepted and the power to regulate judicial procedure had also been recognized. Therefore, the power to clothe the Dawes Commission with judicial authority in citizenship cases was constitutional.27 Certainly, now that the highest court in the land had upheld the jurisdiction of the citizen-making agencies established by Congress, the matter was thought to be a closed issue, by a majority of those interested. Yet, the Indians were not willing to admit defeat.

On November 23, 1898, Chief McCurtain entered into a contract with James M. Shackelford, of Muskogee, to represent the Choctaw Nation in citizenship matters, at a fee of $5,000 per year, with the understanding that the total amount would be paid, whether it took a whole year, or not.28 In July, 1899, a similar contract was entered into between the Chickasaws and the South McAlester firm of Mansfield, McMurray, and Cornish, carrying a similar stipend.29 After approving their chief's contract with Shackelford, on March 23, 1899,30 the Choctaw Council passed another bill on October 19th, authorizing McCurtain to employ a competent attorney from November 23, 1899, when the previous contract was to expire, until the Choctaw rolls were completed and approved by the Secretary of the Interior,

Page 435

at $5,000 per year, but with a provision that they were to receive only a proportionate share of the salary if the work were completed in less than a year's time.31 Under the terms of this act, the firm of Mansfield, McMurray, and Cornish soon entered into a contract with the Choctaws, similar to that held with the Chickasaws, and a relationship was entered into, that was to mean much in subsequent developments in citizenship matters.32 For a short time, in 1900, A. S. McKennon was connected with this firm, but his relationship with it was very brief.33

A constant fight was made, by the nations, also, on the court citizens, through other channels. On March 25, 1899, the Choctaw Council approved an act appropriating $2,500 to pay the law firm of Stuart, Lewis, and Gordon, for services under a contract between that firm and McCurtain, dated February 22, 1899, by which they were to be paid $15.00 for each name removed from the Choctaw rolls as a result of their efforts, together with hotel and other expenses.34 Evidently, all this appropriation was not used, however, as the report of the firm dated September 26, 1899, listed only seventy names as having been excluded from such citizenship.35

As a result of a close study of the rolls, on the part of the tribal attorneys, and the Dawes Commission, during 1899, there were discovered, during the latter part of that year, and the early part of 1900, a number of names added to the Choctaw-Chickasaw rolls by the court of the southern district, which had not even appeared in the appeals upon which they had been added. Suit was brought by Mansfield, McMurray, and Cornish, representing the two nations, and P. B. Hopkins, for the Dawes Commission to have them removed, and as a result, a number of names were removed by order of Judge Hosea Townsend.36 Through this action, eighty-four Choctaw citizens were eliminated

Page 436

and 106 Chickasaw names were stricken from the rolls.37 Some progress was being made by the nations in their struggle against the court citizens who were attempting to place themselves in position to share in the pending property settlement, each share of which was expected to amount to approximately $5,000. To eliminate them, would mean that the shares of those retraining on the rolls, would be larger.

In November, 1899, the tribal attorneys advanced, for the first time of record, a theory that was destined to become significant. Some time during that month, they presented the idea, to the Dawes Commission, that the court judgments of 1897-8 were invalid since they had been rendered in appeals against only one of the nations, while the Choctaws and Chickasaws retained joint ownership in all the lands. They also held that insufficient notice had been given in each case, since only the nation, against whom the appeal had been instituted, had been served in each instance.38 While the origin of the theory was obscure,39 the attorneys seized upon it as a possible source of obtaining redress.

Failing in their efforts to interest the Commission in their idea, the attorneys took their plea to the Commissioner of Indian Affairs and the Secretary of the Interior, early in 1900, where they again failed to arouse any interest. They then went to work to impress all whom they could, with the wrongs that had been perpetrated on the Indians and the justice of their contention. Individual cases were presented, pamphlets were distributed to any representative of the United States, either in the administrative departments or in Congress, who might be able to help them. No less than six trips were made to Washington, during 1900, by representatives of the firm. They were represented in Washington

Page 437

almost continuously while Congress was in session and, by, the end of the year, their efforts were beginning to bear fruit.40

Having built up a sentiment in which there was evidence of a possibility of success, the two nations were induced to authorize new contracts with the firm early in 1901,41 and as a result, a contract was drawn up between Gilbert W. Dukes, who had succeeded Green McCurtain as Principal Chief of the Choctaws in 1900, Governor D. H. Johnston, and the firm of Mansfield, McMurray, and Cornish at Sherman, Texas, on January 17, 1901, under which the attorneys were to work to secure the removal of all names possible, and were to receive, as compensation, a sum equal to nine percent of the value of all shares, so removed. Each share was to be counted as worth $4,800. It was to be on a contingent basis, and nothing was said concerning expenses.42 On the other hand, the existing contracts, under which the firm, acted as tribal attorneys at a set fee, with expenses, remained in force.43 The new contract was not made public. It was not submitted to the national legislatures or to the Department of the Interior for approval and, for a long time, its terms were unknown.44

Fortunately for the plans of the attorneys, the federal representatives had, before this, recognized the necessity for a supplementary agreement with the Choctaws and Chickasaws, to cure some defects that had appeared in the Atoka Agreement, and this was used as a means of securing consideration for their plan of reopening the citizenship cases. The nations refused to sign any agreement that would not provide for reconsideration of the judgments in question, and went to work to secure their ends. A preliminary agreement for closing the rolls, drawn up on September 5, 1899, failed of ratification by the Chickasaws.45 Another, drawn up on February 7, 1901, which provided that

Page 438

the judgments might be set aside by Congressional action, was revised before submission to Congress, to permit the institution of a suit in the United States Court for the Southern District of Indian Territory, to settle the judicial questions involved.46 This failed to receive the affirmative action of Congress, so another agreement was entered into on March 21, 1902, providing, among other things, for test cases to be filed in both the Central and Southern District Courts of the Territory.47

The provision for the test suits was altered by Congress, in the course of its consideration, however, and when the agreement was finally ratified by them, it called for the creation of a new court, to be known as the Choctaw-Chickasaw Citizenship Court, consisting of three judges, appointed by the President of the United States, at a salary of $5,000 each, per year. It was to have jurisdiction to hear a bill in equity, to be filed by the two nations, jointly or separately, seeking the annulment or vacation of all the court judgments relating to citizenship under the Law of 1896, on the grounds of insufficient notice, since the nations were not both served. The case might be brought against ten of the court citizens, within ninety days after the agreement should become effective. In the event of a vacation of the judgments, all persons affected by the hearing should have the right to transfer their cases to the Citizenship Court without prejudice, from the preceding judgment and the other judgments might be appealed to the same court, within six months, for trial de novo. All judgments of the Court in cases arising under the Act of 1896 were to be final. It was to exist only until all cases were heard and, in no event, after December 31, 1903.48

Such a court was without precedent and the opening of cases for rehearing, which, presumably, had been finally adjudicated by the Supreme Court of the United States, certainly was contrary to accepted judicial procedure. It was indicative of the political power resting in the hands of the Indians; of the

Page 439

political sagacity and ability of the tribal lawyers; and of the realization, by Congress, of a measure of the wrongs suffered by the Indians under the working of the Act of June 10, 1896.

Having secured Congressional action on the agreement, the next step was to secure ratification by the nations. The resulting campaign was short, but bitterly contested. It became involved with the regular political campaigns of the summer and led to contests in seating the successful candidates in each capital. Other provisions in the agreement came up for debate, and it took the full strength of those favorable to its adoption to carry the measure. On September 25, 1902, however, it was ratified by a vote of 2,140 to 704 and on October 1, 1902, a proclamation was issued by the canvassing committee, declaring that the agreement had been in effect since midnight, September 25, 1902, as provided in the act of Congress. Those making up this committee, and signing the proclamation were Gilbert Dukes and S. J. Homer, Principal Chief and National Secretary, respectively, of the Choctaws; Palmer Moseley and J. L. Thompson, who held similar positions in the Chickasaw Nation; and Tams Bixby and Thomas B. Needles, for the Dawes Commission.49

So anxious were the champions of tribal action to secure immediate results, that they had induced President Theodore Roosevelt to appoint the three judges on the day of Congressional ratification, contingent upon subsequent ratification by the governments, and the three new judges, Spencer B. Adams, North Carolina, Walter L. Weaver, Ohio, and Henry S. Foote, California, were in Indian Territory before actual voting had been completed by the Indians. They waited, however, until the agreement was proclaimed before organizing their court.50 While they might not have been active in the politics attending consideration of the document, they were, at least, interested spectators. Judge Adams, writing to the Secretary of the Interior from Greensboro, North Carolina, on September 18th, quoted from letters he had

Page 440

received from Mansfield, McMurray, and Cornish and from Judge Foote, at South McAlester, in which intelligent and interesting comments were made, by the writer, on the political scene in the Territory.51

The test suit was soon brought, and on December 19, 1902, the Citizenship Court rendered a decision in favor of the Choctaw and Chickasaw Nations, upholding their contentions, in the case of J. T. Riddle, et al.52 By that decision, the entire question of court citizenship was reopened, and under the direction of the tribal attorneys, all cases upon which suits could be built, were appealed, within the time set by the statute. On the other hand, many who had received adverse decisions from the territorial courts brought appeals, to have their cases adjudicated, until there were some 259 appeals, involving 3,520 persons, brought before the tribunal. Two dockets were prepared, one at South McAlester, where 128 cases appealed from the Central District were tried, and the other at Tishomingo, containing 131 appeals from the Southern District.53

Since the trials were to be de novo, the attorneys for the nations sought all available information, for the securing of evidence of fraud or errors, taking depositions, affidavits, and statements wherever parties, connected with the applications, could be found. They worked in all the Southern states and secured evidence that showed fraudulent practices had been resorted to by many of those who were desirous of securing admission to tribal citizenship.54 Many of the frauds were found to be of an especially glaring nature. One, the A. T. Cowling case, had been built up on an affidavit, in which the maker swore that he had known the applicant's grandparents in Indian Territory, while the applicant had sworn, on the stand, that his grandparents had died in Mississippi, without having ever removed to Indian Territory. Depositions had been introduced by Negroes who

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admitted that they had been partners in preparing false despositions for this class of applicants.55

While the Supplementary Agreement had provided that the life of the Citizenship Court should not extend beyond December 31, 1903, it was soon found that the vast amount of business could not be finished within the allotted time, so an act was passed, by Congress on March 3, 1903, extending its existence until December 31, 1904. This law also conferred upon the court, the task of determining the final amount to be paid to Mansfield, McMurray, and Cornish for their services in connection with the citizenship work; the Secretary of the Interior having refused to recognize their contract and consenting only to a fee of $250,000, which the attorneys refused to accept.56

Attacks were made upon the jurisdiction of the Court and the opponents filed a suit, attacking the constitutionality of the provision creating it. This came before the Supreme Court of the United States, in the case of Ex parte joins and was settled in favor of the Court on November 9, 1903. Under the ruling in this case, the Court was permitted to continue its work and the legality of its decisions was upheld.57 The nations were receiving the support of the federal government in their efforts to take spurious names from their rolls.

By December 10, 1904, the Court had completed its business, and held its last session at Tishomingo. One of the last of its official acts was to set the fee of the tribal attorneys at $750,000, in spite of the fact that a strict adherence to their original contract could have been construed to allow them over one and one-fourth million dollars.58 The justice of this fee has remained one of the disputed questions in the history of this litigation, to the present day. In spite of an attempt made by some members of the nations, through a suit brought in the courts of the District of Columbia, under the name of R. McLish, payment was finally

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made in March, 1905. Thus, one of the largest fees in Indian Territory litigation, which was marked by some exceedingly large ones, was collected by the firm of Mansfield, McMurray, and Cornish.59

During its existence, the Choctaw-Chickasaw Citizenship Court adjudicated the claims of 3,487 persons who had claimed the right to be admitted to the rolls of those nations. Of these only 161 were admitted, while 2,792 were denied and the appeals of 534 children and intermarried men and women, who had hoped to gain admission through their relation to court citizens, were dismissed for want of jurisdiction. The cases of 211 others were dismissed, because of their failure to transfer their cases to the Court after the Riddle decision, even though they had received favorable decisions from the federal courts of the Territory. Of those denied, 2,069 had previously been admitted by the federal courts, while 723 were appealing from adverse decisions by those courts.60 By the activities of this body, the Choctaws and Chickasaws were saved an amount estimated at from fifteen to twenty million dollars, and they had that much more, in land and money, to divide among those who were held to be rightly entitled to shares in the gigantic division. Largely through the efforts of one firm of attorneys, who refused to accept as final, judgments from the courts of the United States, one of the greatest law suits in our history was brought to a successful completion.

The Dawes Commission had been vitally interested in the proceedings, in connection with this vast litigation. During its progress, the Commission was engaged in enrollment and allotment work, in the nations, and found that they were often delayed, pending decisions of the court. All during 1903 and 1904, they were involved in a dispute with the nations as to whether applications should be received from those who had identical ancestry

Page 443

with those whose cases were being tried, and other analagous cases. While the Indian Office and the Department of Interior were fairly consistent in upholding the Commission, there was one period, from December 7, 1903 until February 24, 1904, in which the receipt of all applications was suspended. Then, too, the attorneys were permitted to protest all such cases, which were analagous to those being tried in the Citizenship Court, and on February 6, 1904, such protests were filed, involving 1,031 persons, 120 of whom had already been approved by the Secretary of the Interior.61

On September 8, 1904, the Commission received a telegram from the Department to withhold, from allotment, the homes and improvements of all court citizens who had been placed on the tribal rolls, preceding the filing of the appeals, and who had refused to transfer their cases to the Citizenship Court.62 Finally, the Commission was bound by all decisions of the Court in subsequent enrollment work, and it received all the decrees, orders, and opinions of that body, which were certified to it before the Court's final dissolution.63

The Commission's work was definitely delayed, and complicated, through the existence of the constant litigation; final record on all cases in which applications had been made before them in 1896, being delayed until receipt of the decisions of the Citizenship Court.64 It was significant, however, that the findings of that Court were much more in keeping with those of the Commission, in its original decisions than had been those of the territorial courts in passing upon the appeals from its findings. The prestige of the Dawes Commission was, if anything, enhanced by the findings of the Citizenship Court.65

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