United States. Congress. Senate. Select Committee.

Report of the Select committee to investigate matters connected with affairs in the Indian territory with Hearings, November 11, 1906-January 9, 1907 .. online

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Online LibraryUnited States. Congress. Senate. Select CommitteeReport of the Select committee to investigate matters connected with affairs in the Indian territory with Hearings, November 11, 1906-January 9, 1907 .. → online text (page 48 of 155)
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a general order.

Q. Removing all restrictions? — A. Yes, sir.

Q. On the homestead and all ? — A. No, sir ; I don't think I would
take it off the homesteads. No ; I would leave it on the homesteads,
for there are people that ought to be protected in their homesteads.

Q. Then, you would not approve taking it off the homesteads?—
A. No, sir, I would not; for if you did that I know that he would
soon have a great many people who would be homeless.

Q. What conditions would you recommend as to the removal of
restrictions from the full bloods? — A. Well, I believe it should be
done through the United States courts in each case and making a
special and separate examination into the merits of each application
and a special investigation as to the fitness of the full blood to have
them removed, and it should be done by hearing evidence like in any
ordinary suit in court.

Q. You think, then, that there should be no general law passed by
Congress removing the restrictions on any of their lands? — A. No,
sir ; I don't believe it would be a good idea. I think it ought to be
a court proceeding as I have described. I think each case should be
handled separately in the case of the full bloods.

Now, I want to impress upon the committee the fact that there is
a very great necessity for some relief on this restriction business as
far as. the half breeds are concerned, because we are soon going to
have a new State down here, and there is a problem confronting us
as to how we are going to carry on our local government without some


taxable property. We can't carry on any kind of government with-
out having something that is taxable.

Q. Then you do not object to be taxed? — A. No, sir.

Q. You are perfectly willing to be taxed? — A. Yes, sir. If I am
to be a citizen in this new State I want to bear my share of the expense
of running the State.

Q. You wish to be a good citizen? — A. I do.

Q. And you think it is the duty of every good citizen to pay his
due share toward the expense of running the State and local county
or city governments ? — A. I do.

Q. Are there many more like you down here? — A. Yes, sir.

Q. You say that you are secretary to the chief? — A. I am one of
them. He has three secretaries, and I am one of them. I have been
one of his secretaries for three years now.

Q. The chief's name is Rogers, I believe? — A. Yes, sir; W. E.
Rogers. In my position I have an opportunity to know what the
senGment of the people is on any question, and I think I know what
it is on the question of removal of restrictions.

Q. Has Mr. Rogers ever passed any opinion, or has he ever
expressed any opinion, either public or private, on that question — that
is, inj-egard to the removal of restrictions? — A. Well, I have heard
him say so privately — yes, and publicly, too, but not in an official
capacity. He would make suggestions along that line.

Q. His views are similar to yours? — -A. Yes, sir; I think so.

Q. How about your people — the Cherokees? — A. I think it would
be the sentiment of a great majority of them that the restrictions
should be removed. Well, now these people who have come here and
who have homes here — if the people who desire to come here and make
their homes with us — ^if there was a general order made that they
could come h^re and buy their homes and improve them and live on
them — if they would come in or were allowed to come in and buy this
land from the allottees it would be a great thing for the country and
for the people who own the land, for, as a rule, they are poor and
haven't anything, and if they could sell their surplus land or part of
it, say, they could go at work improving their homestead and have a
comfortable place to live; they would have the means of getting a
start, and that is what most of them need; and another good thing
would be that the land would sell for what it is worth in the market
the same as it does in the State. If that was done it would just about
shut out the speculator.

Q. Is that the class of gentlemen who have been referred to many
times since we began this investigation as the " grafter ? " — A. Yes,
sir. I will call him the speculator — for that is what he is. If this
was done I believe there would be a very great and sudden advance
in the prices paid for land. This is a great country; it is all right,
and some day everybody will admit it is all right. All it wants is
half a chance, and it will show the country a thing or two. I am free
to say that we would much rather see it settled up by a good class of
farmers and put in crops — settled by people who know how to farm,
for their way of doing things would oe an object lesson to our peo-
ple, and that is what they need more than anything else — that and
money with which to get a start. Thank you, gentlemen.



By Senator Long :

Q. What is your post-office address ? — A. Okemah, Ind. T.

Q. You may proceed with your statement. — A. At the last session
of Congress in the Indian appropriation bill there was a little clause-
just a little short sentence — which reads like this, " in the act making
appropriations to sujoply deficiencies in the appropriations for the
fiscal year ending June 30, 1906, and for prior years and for other
purposes." The part that I refer to removes certain restrictions.
Now, I know an Indian who is about 64 or 65 years of age; he is a
full blood and don't speak a word of English; he is very illiterate
and a confirmed drunkard. In the year 1901 his allotment was on
a new railroad where the depot was about to be established, and the
Secretary removed the restrictions off 120 acres of his land. Since
that time something like from $40,000 to $50,000 worth of improve-
ments have been placed on that homestead. It stood there for three or
four years and we were never able to get the Secretary to remove the
restrictions until this act of Congress was passed. Now, the trouble
is that there are three Nocus Fixicos. That is where the trouble
comes up — there is three of them in the Creek Nation, each of them
having an allotment and each of them being the same age, about,
and each having a homestead — it does not describe the Indian nor the
land. Now, that is the only thing on that homestead that saved these
people from being robbed of their homesteads. He was taken to
Guthrie, Okla., Topeka, Kans., and to Kansas City, and kept there
two weeks. The President signed the appropriation on April 26,
in Washington, and on the 27th he signed a general warranty deed
in Kansas City, where he was at the time conveying this land and
all the improvements on it away, and they paid him $2,000 in money
for it. Well, he only got $200 of it in cash at that time, but they
afterwards placed the rest to his credit in a bank. I will read his
sworn complaint, for a suit was afterwards filed to set aside the deed
on the ground of undue influence or duress.

By the Chairman :

Q. Have you a case pending ? — 4- Yes, sir. Now, what the people
want is that a general curative act be passed by Congress. The opin-
ion is universal that that bill did not take the restrictions off any land,
for the reason that it is too indefinite and nonoperative, and if that is
so, the party that paid that sum of money thinking he was getting
this land is just out that amount of money. They have paid out their
money and are simply out a couple of thousand dollars ; but I have
been informed and understand that they intend to get another act
through Congress that will cure the defects in this one ; but we want
nothing done curing that case. What we want is an act authorizing
any Indian to sell anything he has excepting only his homestead.
The ordinary Indian, if he gets hold of money, will go off and fill
up on whisky.

Q. Can he get that here in the Territory ? — A. You just bet he can;
and he should not be allowed to sell his homestead. He can sell his
surplus. Let him sell it, for it won't do him any good anywaj^, but
don't let him sell his homestead. It won't do him any good, either,
but he has a place he can go to, and it will be his home anyway and


keep him off the public, for otherwise he would become a public
charge. What we want is that Congress pass an act removing the
restrictions on the land and allow them to have it upon paying, say,
$100 or $125 an acre for it, and then leave that fund under the control
of the Secretary, and he could pay it out monthly, say at the rate of
$25 a month for each child, and at that rate in this case it would last
him one hundred and sixty months, which would be about as long a
time as he would live. He is 67 or 68 years old, and probably would
not live longer than that anyway, so let him have it.

By Senator Teller :

Q. Do you realize that we can not do that, for this man is a citizen
of the United States. If that act is void, that is just the shape the
purchaser is in ; he is out his money and can not get it back. — A. Well,
I don't agree with you. Senator. I think you can do that very thing
and not avoid any constitutional right.

Q. Is this man a full-blood Indian? — ^A. Yes, sir.

Q. What nation? — A. He is a Creek. In this same appropriation
bill there is a provision by which the Secretary may remove the pro-
visions — I mean the restrictions — a provision by which the Secretary
may remove the restrictions for town-site purposes, but we had an
application in there for four or five months and could not get it

Q. Do you mean that the Indian Office is overcrowded with busi-
ness? — A. Well, it was filed under Tams Bixby down here; it was
filed here and has never reached the Indian Office.

Q. The petition is in the Interior Department. — Well, it never
has reached it if -it is. They have filed it with the Commissioner of
Indian Affairs, I think ; but I don't know what has become of it.

Q. Why did you not present the matter to him? — A. Well, we
are waiting to hear from him. He will write when he gets ready and
say that the matter has been received and will receive due attention.
That is all there is to it.

The committee took a recess till 8 o'clock p. m., when it reassembled.

MtrsKOGEE, Ind. T.,
Thursday, November 15, 1906.


Present : Messrs. Clark, of Wyoming, chairman ; Long, Brandegee,
and Teller.

The Chairman. Mr. Webster Ballinger has a matter which he de-
sires to present for the consideration of the committee, and we have
told him that he can take this occasion to make his presentation. It
is a matter somewhat different from what we have been considering
to-day, and we shall be obliged to Mr. Ballinger if he will state as
clearly and concisely and briefly as possible the nature of the propo-
sition which he has on hand. I will say that Mr. Ballinger has
asked the committee to send for certain records of the Dawes Com-
mission, and also certain persons whom he wishes examined on the
subject-matter that he has under consideration, and the committee
have complied with his request.



Mr. Chairman and gentlemen of the committee, this matter per^
tains 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 and live on it," and it
then goes on to describe the land, as follows : " Beginning near Fort
Smith, where the Arkansas boimdary crosses the Arkansas Eiver,
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 Eed Eiver
and down Eed Eiver to the west boundary of the Territory of Ar-
kansas ; thence north along that line to the beginning. The boundary
of the same to be agreeably to the treaty made and concluded at Wash-
ington 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 Choc-
taws and Chickasaws and the ex-slaves, and relates to the descendants
of those marriages. The rights of these people have never been de-
nied 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. Ballingbr. Yes, sir ; these descendants.

Senator Long. What is the language ?

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

That said Commission is further authorized and directed to proceed at once
to hear and determine the application of all persons who may apply to them for
citizenship in any of said nations, and after such hearing they shall determine
the right of such applicant to be so admitted and enrolled: Provided, 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 appli-
cations within ninety days after the same shall be made. That in determining
all such applications said Commission shall respect all laws of the several na-


tions or tribes not Inconsistent with tlie laws of the United States, and all
treaties with either of said nations or tribes, and shall give due force and efCect
to the rolls, usages, and customs of each of said nations or tribes.

The treaty of 1830 provided for their enrollment. That is, it pro-
vided 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 Beandegee. For the purpose of your inquiry, is it neces-
sary to determine now whether or not these people are entitled to go
on the roll?

Mr. Ballingee. 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 Wash-
ington or elsewhere.

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

Mr. Ballingee. The proposition in brief is thi^: That the Com-
mission construed the law of 1898 to mean that descendants of inter-
married negroes and Indians took only the status of the servile
parent, namely, the negro, and accordingly enrolled them as freed-
men. As a result of that construction we find a peculiar condition of
aifairs existing, by which a father appears upon the roll of citizens
by blood, while his children appear 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. Ballingee. I can not understand.

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

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

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

Mr. Ballingee. 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

I desire to read the act of 1898. These were the instructions Con-
gress 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 di-
rected 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 wilih such
intermarried white persons as may be entitled to Choctaw or Cliickasaw citi-
zenship 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 Inte-
rior. In the meantime Congress passed a law under data 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 Com-*
mission 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

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. BAiJCiiNGER. Senator, there are between 1,000 and 2,000 persons.

Senator Long. Persons that are now on the freedmen's roll?

Mr. Ballingee. Yes, sir.

Senator Long. Persons that you claim should be placed on the citi-
zen 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 can-
celed. 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 Dillerd 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 pat-
ent 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 cou»t 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 Commision, went to
Washington and secured the enactment of section 4 in the Five Civi-
lized 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 Com-
mission the right to make application for enrollment as citizens by
blood — unless those records showed that the party had made an appli-
cation 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 Com-
mission for the transfer from the freedmen roll to the roll of citizens
by blood, but on the contrary, every petition acted on by the Com-
mission 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. Ballingee. 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 citi-
zenship 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. Ballingee. I do, Mr. Chairman. I not only state that it is
due to gross negligence, but I charge here and now that it was inten-
tional, and that they have asserted at various times that these parties
should not be transferred if they could prevent it.

The Chaieman. 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. Ballingee. I certainly would not.

The Chaieman. You have asked the committee to request the pres-
ence of certain officers connected with the Government of the United
States that you might examine them on these points. Notice has been
g?ven 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. Ballingee. I should like to call to the stand Mr. Franklin.
He is not an officer, but I desire to take his testimony first.

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

Mr. Ballingee. I desire it given under oath.

The Chairman. Mr. Franklin will be sworn-
S. Rep. 5013, 59-2, pt 1 2.3 '


Senator Long. I should like to ask Mr. Ballinger one question. Do
you contend that the Commission adopted a wrong rule for deter-

Online LibraryUnited States. Congress. Senate. Select CommitteeReport of the Select committee to investigate matters connected with affairs in the Indian territory with Hearings, November 11, 1906-January 9, 1907 .. → online text (page 48 of 155)