Mr. MILLER. It would be unfortunate, in a matter involving $5,000, to give $2,500 to prove their rights. Mr. MCHARG. Yes; I think so. cent fees myself.

I have never gotten any 50 per

Mr. SAUNDERS. This is a matter that ought to be determined by a legislative body after all, is it not?

Mr. MCHARG. There is no way on earth to keep Congress from doing anything.

Mr. SAUNDERS. But it is more properly a legislative matter?

Mr. McHARG. I say no; they should go to court just as I go to court. The reason for that is that you gentlemen have your minds taken up with a multitude of questions, and it is absolutely beyond human capacity for you men to sit down and grasp this situation without going there and spending months in taking proof.

Mr. STEPHENS. Should they not have the right to appeal to the very highest courts?

Mr. MCHARG. I will never stand before any committee and deny any man the right to go to any court that can finally determine his title to property.

Mr. STEPHENS. You do not object to the citizenship cases being reviewed by the United States Supreme Court?

Mr. MCHARG. I do not wish to deny any man the right to go to any court to finally determine his right to property.

Mr. SAUNDERS. There was a case developed before us the other day of a full-blood Choctaw woman-there was no question as to the facts who turned out at the time the applications were being made and she had to stay in line; she stayed in line a day or two and became so weak that she was compelled to drop out and was never enrolled; but her son, who claimed through her, was enrolled. Do you think upon that state of facts that that old woman has had an adequate day in court?

Mr. MCHARG. How many days did she have in which to appear? The CHAIRMAN. She stayed there two days and a half.

Mr. MCHARG. She had ninety days, did she not?

Mr. KENDALL. She appeared the first day, it was testified.

Mr. SAUNDERS. She was there two days and a half, the chairman says, awaiting her turn.

Mr. MCHARG. I said she had ninety days; she did not have to stay there that day.

Mr. MILLER. She stayed in line two days and became sick.

Mr. MCHARG. Now, the answer to that is the records are replete with cases where the

Mr. MILLER. When an Indian tribe does come and ask for relief in cases like that I understood you to say that it was the duty of this committee to ascertain these cases, and you would cooperate with the committee in having them put on the rolls by name. Is it not more the duty of the Indians themselves to find out who these people are rather than to expect us to do it who have limited information on that subject?

Mr. MCHARG. I would answer in this way, by saying that the evidence should be put before any lawyer of any Indian nation down there and give us a chance to correct this within the limits of the law, and let us come in and ask you to take care of these people.

Mr. SAUNDERS. I quoted you the case of a full-blood Choctaw; I predicated my question upon facts that were given as correct; and upon that assumption would you think that was a case in which that old woman had an adequate day in court?

Mr. MCHARG. I certainly do, if you ask me as a purely legal question. The answer is this: When a person gets a summons they shall elect whether they shall proceed or stop.

Mr. SAUNDERS. And upon that state of facts-assuming those are the facts you do not think that is a case in which we should undertake to give relief?

Mr. MCHARG. That is another case entirely. If you will give us your data we will ascertain the facts and ask you to put this person on by name.

Mr. SAUNDERS. If you are given an opportunity you will take up that woman's case?

Mr. MCHARG. I will.

Mr. KENDALL. All the facts in that particular case are mentioned in Mr. Howell's report to the department.

Mr. MCHARG. That is a most remarkable document-the Howell report. It has an existence somewhere between the earth and heaven. We have not seen it. It is just the observation of a man who has gone down there and who has conducted an ex parte examination into the situation.

Mr. KENDALL. We had Mr. Howell before the committee.

Mr. MCHARG. We can not get his hearing, though, and do not know what he claims.

The CHAIRMAN. I understand your contention is that the responsibility in this matter is upon the nation, and if we will tell you who these people are the nation will see that they are taken care of?

Mr. MCHARG. I want to say in the cases of the character you have enumerated, of infants, insane persons, and persons incarcerated in institutions of any character, where they could not come out and exercise their rights under the law, and cases of the character of this fullblood Choctaw woman, we will present that matter and we will get the facts and ask you to put these people on b name. But we ask you not to open this roll up and let Tom, Dick, and Harry come in.

The CHAIRMAN. Will you briefly state, and in a few words, just what your opinion is as to the duty of the United States toward those people-the Choctaw people-as a whole; what is the position of the Government here?

Mr. McHARG. I might say that Mr. Hill has kindly asked me to answer your question in full, so if you will allow me to have five minutes more and I may be able to finish in less time than that-I should like to say that commencing with the Dawes Commission down to the present time an effort has been made to make allotments to Indians, and in the efforts which have been made from time to time to sell their property the Congress of the United States has so hedged. about this particular property distribution that the gentlemen who had to do with that business in Oklahoma in the distribution of the property could not get the prices they thought were adequate for the property. In other words, they did not feel upon their conscience that they could administer these things both for the interest of the United States and these Indians-

The CHAIRMAN. Can you not answer my question without going into a history of what has been done? My question is: What is your

opinion as to the position the United States occupies in this case; is it that of a trustee or guardian, or what is its position?

Mr. MCHARG. Why, it is nothing more nor less than an overmastering political power over an inferior political power, that is all it is. The Indian nations stand there, having passed their own laws up to the time the Congress of the United States took over the matter of passing the laws for them, with the full property and political rights of their own people. But in the course of administration confusion arose and personal corruption grew out of the situation. Then, Mr. Chairman, Congress came along and took over all this thing. But my position is this, that so far as that grant in 1830 is concerned it was an absolute grant to those Indians in fee simple, and I say in their corporate capacity you should allow them to sell it and sue in their corporate capacity, as they claim the right to do.

The CHAIRMAN. It seems you differ in your contention from the Supreme Court.

Mr. MCHARG. Why, the Supreme Court has taken this position from the time the famous Georgia case was decided. It was a political question, you know.

Mr. CAMPBELL. We are confronted here with a question which is largely one of fact; that is to say, who have been left off of these rolls and are entitled to go on under the law. We have said that under the law their day ended on the 4th of March, 1907. What would you say to giving the courts jurisdiction to ascertain the names of the parties who ought to have been enrolled before we closed the rolls? Mr. MCHARG. You mean to give them jurisdiction

Mr. CAMPBELL. Give the courts jurisdiction to ascertain the names, they to certify the names to us, and we then place their names on the roll by act of Congress.

Mr. MCHARG. It strikes me-to answer your question specifically, I would say that is the only way I believe you gentlemen yourselves will be satisfied with the proof.

Mr. MILLER. Would they not immediately employ lawyers at so much a head to keep them off?

Mr. MCHARG. It would hardly be expected that that would be done in an arbitrary fashion.

Mr. MURPHY. Would you think the Commissioner of the Five Civilized Tribes could determine that?

Mr. MCHARG. I do not know of any opposition to Mr. Wright doing so; he is a man whose integrity is fully conceded in the community, and I think this thing should be protected, should be guarded and kept within some reasonable limits.

Mr. MURPHY. Is it your judgment that his findings as to matters of fact should be final without being hampered at long distance, as they have been, from Washington?

Mr. MCHARG. I have expressed myself frankly about conditions I thought existed in the different departments of this Government growing out of bureaucratic methods. I would like to qualify my statement as to one commissioner, because it might be too much to expect one man to pass upon these cases and have it final; I would think a commission of three would be sufficient.

Mr. CAMPBELL. Don't you think it would be more satisfactory to all concerned if the questions of fact were found by the courts?

Mr. MCHARG. As Americans and recipients of the English legal system we are taught to place great dependence upon the courts. We have heard charges of fraud against the commissions that went to the Territory and found as to questions of fact, and we also heard the same charges of fraud even against the courts.

Mr. HINSHAW. You mean that this inquiry, as to the proper names, should be before a federal court?

Mr. MCHARG. Well, I presume that this committee can not cast any such burden on any but a federal court.

Mr. HINSHAW. Are there any Indian courts that would have jurisdiction?

Mr. MCHARG. No; they are all abolished.

WASHINGTON, Friday, May 6, 1910. The committee met this day at 10.30 o'clock a. m., Hon. Charles H. Burke (chairman) presiding.

The CHAIRMAN. The committee will come to order. Mr. Merillat, do you wish to be heard as to Choctaw and Chickasaw citizenship?

STATEMENT OF CHARLES H. MERILLAT, ESQ., OF WASHINGTON, D. C.

Mr. MERILLAT. Yes, sir; on citizenship cases in the Five Civilized Tribes.

The CHAIRMAN. I believe you stated yesterday that you thought you could say all you wanted to say in fifteen or twenty minutes.

Mr. MERILLAT. I said in twenty or thirty minutes, but perhaps I can complete in fifteen minutes.

The CHAIRMAN. You are presenting the claims of the 52, I believe? Mr. MERILLAT. The 52 and certain other persons who were found by the Secretary of the Interior as a matter of fact, on the merits, to be entitled to enrollment, but who have failed to get upon the final rolls of the Five Civilized Tribes for this reason: Their cases were considered upon their merits. The Secretary announced the decision that they were entitled to enrollment some time, as a rule, in the month of January or February, 1907. On February 19, 1907, Attorney-General Bonaparte rendered an opinion in which this proposition was before him: Was a party whose case was passed on by the Choctaw and Chickasaw citizenship court under the provisions of sections 31 and 32 of the agreement of 1902 with the Choctaw and Chickasaw nations, barred of the right to have his case considered on the merits under the act of 1898, known as the Curtis Act, for the reason that there had been an adverse decision rendered as to him by the Choctaw and Chickasaw citizenship court, or had failed to remove his case after the test cases were decided to the Choctaw and Chickasaw citizenship court? Because of the use of the word "final" in sections 31 and 32 of the act creating the Choctaw and Chickasaw citizenship court Attorney-General Bonaparte held that an applicant who had been denied by the Choctaw-Chickasaw citizenship court was barred of consideration upon the merits. That opinion came down February 19, 1907.

That opinion, when it was placed before Secretary Hitchcock, was given a broad application never contemplated by the AttorneyGeneral in rendering his opinion and one never contemplated by the Indian nations when they laid the question before him, and by means of a broad extension of that opinion to cases not embraced within its scope a number of persons were denied their rights without any hearing and without any opportunity to show that they did not come within the meaning of that opinion, even conceding that that opinion was correct, limited to the point and question actually ruled on by it. Furthermore, that opinion of the Attorney-General, as a matter of fact, was contrary to the holding of Mansfield, McMurray & Cornish, the Choctaw and Chickasaw attorneys, at the time the Choctaw and Chickasaw citizenship court rendered its decision on the test cases. Their contention was, and it is embraced in a letter which is among the files of the Dawes Commission, that the effect of the Choctaw and Chickasaw citizenship court decision was to take from those persons who had secured decisions in the United States district court, without notice having been given to the other nation, either Choctaw or Chickasaw, as the case might be, the effect of those favorable judgments of the United States district court, and to remit the cases, uninfluenced by those judgments, for a determination on the merits under the Curtis Act of 1898. That view was embodied in letters that are on record as being their announced view at the time the decision was rendered by the citizenship court.

Mr. KENDALL. Were Mansfield, McMurray & Cornish, that is, the Oklahoma firm of lawyers, the advisers of the court?

Mr. MERILLAT. That firm was the official attorney of the Choctaw and Chickasaw nations.

Mr. KENDALL. That was the only relation they occupied?

Mr. MERILLAT. Yes. That was their relation. They presented the question referred to to the Attorney-General, who overruled a long line of precedents in the Department of the Interior, and held that the claimants could not have their cases considered on the merits. Mr. KENDALL. That was the opinion of February 19, 1907 ? Mr. MERILLAT. Yes, sir. That overruled, as I say, a line of precedents in the Interior Department, and my own view is that those cases should have been considered on the merits, and that Congress never intended to apply technical rules of estoppel to claimants to Indian citizenship. But, conceding that the Attorney-General was right in overruling the long-established precedents in the Interior Department, rendered by the Assistant Attorney-General and others who had had the immediate subject under consideration for years, and who had been partly instrumental in drafting all the legislation relating to Five-Tribe affairs. Conceding, however, that that opinion of February 19, 1907, is correct, let us get at what was done under it. That decision was rendered with reference to the Choctaw and Chickasaw citizenship court. The Attorney-General, however, construed that opinion as meaning that he had erred wherever the word "final" occurred in any statute, whether or not it was the statute of 1896, the statute of 1898, the statute of 1900, or in the agreements with other tribes than the Choctaw and Chickasaw nations.

For example, in the Cherokee Nation a family, some of whom are named Freeland and others Gibbons, had applied for enrollment in the