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John and Anderson McCarty, Choctaw

John McCarty et al. Anderson McCarty et al.
Commission, No. 1275. Commission, No. 1309. United States Court,
No. 50, McAlester. Citizenship Court, No. 29, McAlester.

September 9, 1890. Original applications filed with commission for enrollment of Everett E. McCarty, his brother, Anderson McCarty, and their families, numbering 36 claimants. All claim through Annie McCarty, their mother, who was a one-quarter blood Choctaw, and their grandmother. Mrs. Martha Smith (nee Jones), a half- blood Choctaw. Both of their ancestors lived in the old Choctaw Nation, Miss., when claimants were born. Claimants removed to and settled in the Choctaw Nation, in 1888, near Healdton, where they have since resided. Claimants took up land, improved it, and their right to issue permits to noncitizens, which they did, was never questioned, as appears from the evidence and the permits issued, which are of record. Deeds are on file showing that they bought and sold farms, as other Choctaws did. In October 1895, Everett McCarty applied to the Choctaw Citizenship Committee for the enrollment of himself and family. The claim was favorably acted upon by the committee, but no action was taken on it by the council, which adjourned only a few days after the report was made. In 1896 they applied to the commission instead of to the council. The evidence as to their Choctaw blood is conclusive, as is also the evidence of the residence of 25 of them in the nation since 1886 and tribal affiliation.

December 8,1896. Application denied by commission. No decision. Stamped "Denied."

January 1897. Case appealed to United States court, testimony taken and record before commission considered.

August 25, 1897. Special Master T. N. Foster recommended the enrollment of 25 of the claimants.

August 26,1897. A judgment was entered adjudging the following persons citizens of the Choctaw Nation (certified copy hereto attached): Everet McCarty, Evelyn E. McCarty, Teressa, Wilson, John McCarty, Theron B. McCarty, Louis McCarty, Jennie F. McCarty, Carrol C. McCarty, Charlotte E. McCarty, Loula Babers, Pinkey Lewis, Floyd Lewis, Millie Lewis, Beacher Alison, Ada Wilson, Addie Wilson, Anderson McCarty, C. M. McCarty, James A. McCarty, W. S. McCarty, Maggie McCarty, Mildred McCarty, Loucile McCarty, Frank McCarty, and James A. McCarty, jr.

August 8, 1899. Enrolled by commission.

December 17, 1902. Decree of United States court set aside by decree of citizenship court in test case.

March 6, 1903. Records United States court transferred to citizenship court. Testimony taken.

April 30, 1904. Decree was entered denying all applicants.

James K. Kelley et al.

These claimants are the children of Annie Kelley (nee McCarty), a sister of Anderson and E. E. McCarty.

The facts in this case are identical with those set out in the above case. The record differs only as to the persons included in the applications and judgments. The commission denied their applications in 1896. Case appealed to United States court, there heard, and a decree entered adjudging the following persons citizens of the Choctaw Nation: James K. Kelley, Annie Kelley, James R. Kelley, jr., Teressa Kelley, Buel Kelley, Ruth Kelley, Grace Kelley, Eugene McCarty, Marcellus McCarty, Rosa Belle McCarty, Nannie Lou McCarty, Elbert McCarty, Laura J. Hancock, John Hancock, Viola Hancock, Lettie Hancock, Joseph Hancock, Beadie Hancock, Walter Hancock, Joseph McCarty, Alfonso McCarty, and Oscar McCarty.

Certified copy of decree hereto attached.

December 17. 1902. Decree of United States court set aside by decree of citizenship court in test case. Papers later transferred to citizenship court and case decided adversely to applicants April 30. 1904, court holding that the Indian blood of their ancestors was not sufficiently established.

Applications for the enrollment of newborns were submitted and denied as follows:

September 10. 1900. Josie McCarty, infant child of Eugene and Thursa McCarty; denied May 27, 1904.

December 22, 1900. Stewart Milton McCarty and Annie L. McCarty, infant children of T. B. McCarty, born December 22, 1900; denied May 27, 1904.

Counsel for claimants respectfully submit that upon the facts shown in the record in this case these claimants are entitled to enrollment under the decision in the Long case, if not in the Lulu West case.

February 14, 1906. Petition was filed with the commission for the enrollment of each of the above-named applicants under the decision in the Lula West case, they alleging that their recognition in 1895 by the citizenship committee entitled them to enrollment on January 31, 1907.

September 27. 1896. Commission rejected their claim to enrollment (decision hereto attached).

March 4, 1907. Secretary affirmed decision of commission rejecting claimants, under opinion of the Attorney General of February 19, 1907, which was construed by the department as holding that the decision of the citizenship court was final.

Counsel for claimants respectfully submit that the following persons are clearly entitled to enrollment: Everet E. McCarty, Evelyn E. McCarty, Teressa Wilson, John McCarty, Theron B. McCarty, Louis McCarty, Jennie F. McCarty, Carrol C. McCarty, Charlotte E. McCarty, Loula Babers, Pinkey Lewis, Floyd Lewis, Millie Lewis, Beacher Alison, Ada Wilson, Addle Wilson, Anderson McCarty, C. M. McCarty, James A. McCarty, W. S. McCarty, Maggie McCarty, Mildred McCarty, Loucile McCarty, Frank McCarty, James A. McCarty, jr., James R. Kelley, Annie Kelley, James R. Kelley, jr., Teressa Kelley, Buel Kelley, Eugene McCarty, Marcellus McCarty, Rosa Belle McCarty, Nannie Lou McCarty, Elbert McCarty, Laura J. Hancock, John Hancock, Viola Hancock, Lettie Hancock, Joseph Hancock, Beadie Hancock, Walter Hancock, Joseph McCarty, Alfonso McCarty, Oscar McCarty, Ruth Kelley, and Grace Kelley.

Exhibits attached.
Respectfully,
Ballinger & Lee, Attorneys for Claimants

United States Of America
Indian Territory, central district ss:

In the United States court In the Indian Territory, central district, at a term thereof begun and held at South McAlester, in the Indian Territory, on the 10th day of January A. D. 1898.

Present: The honorable William H. H. Clayton, judge of said court.

The following order was made and entered of record, to wit:

James R. Kelley et al. v. Choctaw Nation. No. 78.

On this day the motion herein filed by plaintiffs to re-form judgment rendered in tills case on August 26, 1897, came on to be heard: and the court finds that in said judgment a clerical error appears, In which the names Retta Hancock and Betta Hancock are used instead of the names Lettie Hancock and Beaddie Hancock, the correct names as shown by proof; and that the names Ruth Kelley and Grace Kelley were also omitted from said judgment, in which their names should have appeared, their claims having been properly adjudicated, and not mentioned in said judgment; and the names of Minerva Kelly and Fanny Kelly were also entered by clerical error: and the court being sufficiently informed, doth sustain said motion; and it is therefore ordered that said judgment so rendered be re-formed so as to be as follows: James R. Kelley et al. v. Choctaw Nation. Judgment

On this day this cause came on to be heard, and the same was admitted to the court upon the pleadings and proof: and the court being well and sufficiently advised in the premises, finds the issues in favor of appellants James R. Kelley, Annie Kelley, James R. Kelley, jr., Teressa Kelley, Buel Kelley, Eugene McCarty, Marcellus McCarty, Rosa Belle McCarty, Nannie Lou McCarty, Elbert McCarty, Laura J. Hancock, John Hancock, Viola Hancock, Lettie Hancock, Joseph Hancock, Beadie Hancock, Walter Hancock, Joseph McCarty, Alfonso McCarty, Oscar McCarty, Ruth Kelley, and Grace Kelley, and against appellants Eliza A. Greer, Erastus Kelley, Everett Kelley, E. C. Kelley, all being nonresidents of the Choctaw Nation.

It is therefore considered, adjudged, and decreed by the court that the said James R. Kelley, Annie Kelley, James R. Kelley, jr., Teressa Kelley, Buel Kelley, Ruth Kelley, Grace Kelley, Eugene McCarty, Marcellus McCarty, Rosa Belle McCarty, Nannie Lou McCarty, Elbert McCarty, Laura J. Hancock, John Hancock, Viola Hancock, Lettie Hancock, Joseph Hancock, Beadie Hancock, Walter Hancock, Joseph McCarty, Alfonso McCarty and Oscar McCarty are Choctaw Indians by blood and entitled to be enrolled ns members of said tribe, and that they recover of the said Choctaw Nation their costs laid out and expended: and that the Choctaw Nation recover its costs against appellants Eliza A. Greer, Erastus Kelley, Everett Kelley, and E. C. Kelley; and ordered further that this order be entered now as of August 26, 1897; and that the clerk of this court furnish certified copy of same to the Commission to the Five Civilized Tribes.

States Of America,
Indian Territory, central district, ss:

I, E. J. Fannin, clerk of the district court of the United States for the district of the Indian Territory, do hereby certify the foregoing to be a true copy of an order made by said court on the 19th day of January 1888, as appears from the records of said court now on file in my office.

In testimony whereof, I have hereunto set my hand, at my office In South McAlester, in said district, this 28th day of January A. D. 1898.

E. J. Fannin, Clerk.
By _____ ______, Deputy.

United States Of America,
Indian Territory, central district, ss:

In the United States court in the Indian Territory, central district, at a term thereof begun and held at South McAlester, in the Indian Territory, on the 20th day of August, 1S97.

Present: The honorable William H. H. Clayton, judge of said court.

The following order was made and entered of record, to wit:

E. E. McCarty et al. v. Choctaw Nation. Judgment.

On this day this cause came on to be heard, whereupon the plaintiff and defendant announced ready for trial, and the court having heard the evidence und argument of counsel, finds the issue in favor of the plaintiffs, Everet E. McCarty, Evelyn E. McCarty, Terresa Wilson, John McCarty, Theron B. McCarty, Louis McCarty. Jennie F. McCarty, Carrol C. McCarty, Charlotte E. McCarty, Loula Babers, Tinker Lewis, Floyd Lewis, Millie Lewis, Beacher Alison, Ada Wilson, Addie Wilson, Anderson McCarty, C. M. McCarty, James A. McCarty, W. S. McCarty, Maggie McCarty, Mildred McCarty, Loucile McCarty, Frank McCarty, and James A. McCarty, jr., and against the plaintiffs, Julia F. Stewart, Pearl Stewart, Mary Stewart, Frank Stewart, Ellen Stewart, Dortha L. Weaver, J. E. Weaver, James Weaver, Margaret Weaver, and Kate Weaver, on account of their being nonresidents of the Choctaw Nation.

It is therefore ordered, adjudged, and decreed by the court that the aforesaid plaintiffs, in whoso favor the court has found, be and are hereby declared to be members of the Choctaw Nation, the plaintiff, Evelyn McCarty by inter- marriage, and the other plaintiffs by blood; and that they be and are hereby declared and adjudged to be entitled to all the rights, privileges, immunities, and benefits as such members of the Choctaw Nation: and that the defendant, Choctaw Nation, recognize said plaintiffs rights to their full extent as herein adjudged and decreed: and that the clerk of this court furnish and transmit to the Commission to the Five Civilized Tribes a certified copy of this judgment; and that said commission place the names of the said plaintiffs, as above found for, upon the rolls as members of the Choctaw Nation, as adjudged herein; and that said plaintiffs have and recover of and from the defendant. Choctaw Nation, all their costs herein laid out and expended, for all of which let execution issue.

It is further ordered and decreed that the-plaintiffs as above found against take nothing by their suits, and that the defendant have and recover of the said plaintiffs its costs herein laid out and expended, for all of which let execution issue.

United States Of America,

Indian Territory, central district, ss:

I, E. J. Fannin, clerk of the district court of the United States for the central district of the Indian Territory, do hereby certify the foregoing to be a true copy of an order made by said court on the 26th day of August 1897, as appears from the records of said court now on file in my office.

In testimony whereof, I have hereunto set my hand, at my office in South McAlester, in said district, this 7th day of March 1903.

E. J. Fannin, Cleric.
By I. M. Dodge, Deputy

Department of the Interior. Commissioner to the Five Civilized Tribes

In the matter of the application for the enrollment of Eugene McCarty et al. as citizens of the Choctaw Nation.

Decision

It appears from the record herein and from the records in the possession of the Commissioner to the Five Civilized Tribes that application was made to the Commission to the Five Civilized Tribes at Calvin, Ind T., on August 8, 1899, by Eugene McCarty for enrollment of himself and his children, Marcellus McCarty, Rosa B. McCarty, Elbert McCarty and Nannie I. McCarty, as citizens of the Choctaw Nation. It further appears that written application was made to the Commission to the Five Civilized Tribes on December 15, 1900, for the enrollment of Josle McCarty as a citizen of the Choctaw Nation.

It further appears from the records in the possession of the Commissioner to the Five Civilized Tribes that the applicants, Eugene McCarty, Marcellus McCarty, Rosa B. McCarty (as Rosa McCarty), Elbert McCarty, and Nannie L. McCarty, were applicants to the Commission to the Five Civilized Tribes for admission to citizenship in the Choctaw Nation under the provisions of tho act of Congress approved June 10, 1896 (29 Stats., 321), in 1896, Choctaw citizenship case No. 27: that they were denied such admission by the decision of the Commission to the Five Civilized Tribes of December 1, 1896: that from the decision of said commission an appeal was taken to the United States Court for the Central District of Indian Territory, which court, on August 26, 1897, in the case entitled "James R. Kelley et al. v. The Choctaw Nation." case No. 78, rendered judgment therein, a copy of which is not found in the possession of this office: that on January 19, 1898, said court rendered another judgment re-forming said judgment of August 26, 1897, so as to admit Eugene McCarty, Marcellus McCarty, Rosa Bell McCarty, Nannie Lou McCarty, and Elbert McCarty as citizens of the Choctaw Nation. This judgment was subsequently vacated, set aside, and held for naught by a decree of the Choctaw and Chickasaw citizenship court on December 17, 1902, in the test case of "Choctaw and Chickasaw Nations or Tribes v. J. T. Riddle et al." Said cause was subsequently certified to the Choctaw and Chickasaw citizenship court, created under the act of Congress approved July 1. 1902 (32 Stat., 641), for a trial de novo and on April 30, 1904, said citizenship court. In the case entitled "James R. Kelley et al. v. The Choctaw and Chickasaw Nations" (Choctaw citizenship case No. 27. South McAlester docket), rendered its decision therein, wherein it was "ordered, adjudged, and decreed that the petition of the plaintiffs, Eugene McCarty, Marcellus McCarty, Rosa Bell McCarty, Nannie McCarty (or Nannie Lou McCarty), and Elbert McCarty be denied, and that they be declared not citizens of the Choctaw Nation, and not entitled to enrollment as such citizens, and not entitled to any rights whatever flowing there from."

The Commission to the Five Civilized Tribes on May 27, 1904, issued an order dismissing the application for the enrollment of Josie McCarty as a citizen by blood of the Choctaw Nation for the reason that, the application of her father, Eugene McCarty, had been adversely determined by a decree of the Choctaw and Chickasaw citizenship court of April 30, 1904.

It does not appear from the records in the possession of the Commissioner to the Five Civilized Tribes that any of the Applicants have ever been recognized or enrolled as citizens of the Choctaw Nation by any duly constituted authority.

Under the regulations adopted by the Commissioner to the Five Civilized Tribes January 2, 1900, there was filed on February 20, 1906, by Messrs. Cruce, Cruce & Bleakmore, attorneys for the petitioners, a petition praying for the enrollment of Eugene McCarty. Theresa A. C. McCarty, Elbert McCarty, Nannie L. McCarty, and Josie McCarty as citizens of the Choctaw Nation.

It is alleged in the petition that the petitioners, Elbert McCarty, Nannie L. McCarty and Josie McCarty, are the children of the petitioners, Eugene McCarty and Theresa A. C. McCarty; that on October 18, 1892, the petitioner, Eugene McCarty, filed with the national secretary of the Choctaw Nation a petition praying for enrollment as a citizen by blood of said nation.

It does not appear from the records of the Commissioner to the Five Civilized Tribes that any application was ever made for the enrollment of the petitioner, Theresa A. C. McCarty, prior to the filing of the petition herein.

Order

I am of the opinion that inasmuch as it does not appear from the records of this office and is not alleged in the petition that the petitioners have at any time occupied such a status as would entitle them to enrollment as citizens of the Choctaw Nation, the application for the enrollment of Eugene McCarty, Marcellus McCarty, Rosa B. McCarty, Elbert McCarty, and Nannie L. McCarty, and the petition herein in so far as it relates to the petition of Eugene McCarty, Elbert McCarty, Nannie L. McCarty and Josie McCarty should be denied under the provisions of the act of Congress approved July 1, 1902 (32 Stats., 641) and it is so ordered.

I am further of the opinion that Inasmuch as no application was made for the enrollment of the petitioner, Theresa A. C. McCarty, as a citizen of the Choctaw Nation within the time prescribed by law, and inasmuch as her husband, Eugene McCarty, has been denied citizenship by the Choctaw and Chickasaw citizenship court, the petition herein, in so far as it relates to the petitioner. Theresa A. C. McCarty should be denied under the provisions of the acts of Congress approved July 1. 3902 (32 Stats., 641) and April 26, 1906 (Public No. 129), and it is so ordered.

(Signed) Tams Bixby, Commissioner to the Fire Civilized Tribes.
Muskogee, Ind. T., September 27, 1906