Q. 24. Did C. F. Winton say anything to you about going before the Dawes Commission for identification?-A. I don't recollect whether he did or not. I didn't see him much after I made a contract with him because he came up into this part of the country.

Q. 25. As a matter of fact, you never saw him again after you made the contract with him, did you?-A. I saw him away after a while.

Q. 26. How long after?-A. About six months after I saw him, but the Dawes Commission advised me not to go with him, so I met up with him and told him I would not go. I never told him about what the Dawes Commission told me, but I had made contract with C. F. Winton to give him half of my land to take me out there and supply me for one year.

Q. 27. Did he ever come to take you out there?-A. No, sir; he never come because I told him I wouldn't go. I told him that because the Dawes Commission told me the Government would take me out there without me giving them half of my lands.

Q. 28. Did you ever make any efforts to find out where the Dawes Commission was moving Indians from Mississippi to the Indian Territory?—A. I was looking for the notice all the time but never received any notice.

Q. 30. Who were you working for then?-A. I was renting land.

Q. 31. Whose land?-A. Reed was his name; I don't know his first name; he lived out in Texas.

Q. 32. How far did you live from St. Anne post-office?-A. About two miles and a half.

Q. 33. Who was the postmaster at that time?-A. If I am not mistaken, it was Frank Triplett, at that time.

Q. 34. Now, who came out to your home to get you to testify in this case?—A. T. B. Sullivan.

Q. 35. How far does he live from you?-A. About nine miles.

Q. 36. You know that he is one of the intervening claimants in this case, don't you?-A. I know he is connected with some of the business.

Q. 37. Now, how many times has he been out to see you about this case?-A. Once.

Q. 38. When was that?-A. About the 14th of this month.

Q. 39. What did he say to you about the case?

Objected to by counsel as to what conversation was had unless the foundation is shown that said conversation is relevant to the case.

A. He just told me they were going to take the testimony here at Meridian. Q. 40. Never asked you anything about what you were going to testify to, did he?-A. No, sir.

Q. 41. He did not know anything about what you knew about this case, did he? A. No, sir; he did not.

Q. 42. Now, nobody knew what you were going to testify to before you came up here to give evidence, did they?

Objected to by Mr. Wright as an attempt to confuse this witness, when it is well understood by the examining attorney that lawyers always talk with the witness prior to examination.

Counsel for the Government objects to the objection of the counsel for the intervenors, because it tends at least to appraise the witness of the object of the cross-examination.

Attorney for the Government objects to the reading of his objection to the witness.

Mr. WRIGHT. The reading of the above objection by Mr. Wright is waived. A. I was talking to Mr. Wright about it.

Q. 43. Mr. Sullivan, however, didn't know anything about it I believe you said; is that right? A. Yes, sir.

Q. 44. You said that about forty families of full-bloods lived in your neighborhood; is that correct?-A. Yes, sir.

Q. 45. How far do they live from you?-A. About thirty of them live right close to each other, about four miles square, some of them live in sight, the furtherest live about four miles off.

Q. 46. Well, who preaches to those people on Sundays?-A. They have got a pastor there named Scott York who speaks English, a full-blood Choctaw.

Q. 46. What is his post-office?-A. It used to be Standing Pine, but it is Carthage, Miss., now.

Q. 47. Are there any other prominent men among them that you know of, if so, give them their names?-A. I couldn't call any other one.

Q. 48. Can you give me any other names besides that you have just given?— A. Yes, sir; Phillip Dixon.

Q. 49. Is he a full-blood Choctaw?-A. Yes, sir; and he speaks English. Q. 50. Give me any other full-blood Choctaws out there who speak English, that you know of.

Redirect examination by Mr. WRIGHT:

Question 1. When you talked to the Commission, do you mean to say that you talked to the person who was in charge, the head man?-A. Yes, sir.

PAT CHITTO. In order to summarize and show the status of the Mississippi Choctaw Indians at the present time your petitioners state:

Pursuant to the authority of section 21 of the act of 1898 the Daws Commission conducted hearings in the State of Mississippi, terminating on February 24, 1899, and presided over by Commissioner McKennon. From testimony taken by him the Commission prepared a report and roll, dated March 10, 1899, containing the names of 1,923 individuals. Concerning these the report states:

"Of these, there are two families, and probably a few other persons, who are mixed bloods, while all the others are full-blood Choctaw Indians. The commission finds that only a few families of these Choctaws own land, while all are poor, ignorant, and helpless in almost every case susceptible of imposition and wrong at the hands of the white man, but remarkably peaceable, law-abiding and industrious. It is a rare incident that any of these Choctaws is charged with the commission of a crime."

Of the 1,923 persons identified as Mississippi Choctaws on this report of March 10, 1899, also known as the McKennon Roll, less than half, or 800, are now on the final citizenship rolls of the Choctaw Nation in Oklahoma; 1,063 are not on these rolls and are now claimants to an interest in the Choctaw estate. Of this number 538 individuals were never placed on any other roll of identified Mississippi Choctaws, while the remaining 525 individuals, after re-examination by the commission during 1901 and 1902, were included in the rolls of identified Mississippi Choctaws approved by the Secretary of the Interior on February 14, 1903. In addition to the foregoing there was about 500 full-blood Choctaws who did not appear before Commissioner McKennon in 1899, but who made their applications and proof before the commission in 1901 and 1902, and were thereafter identified on what was known as the Roll of Identified Mississippi Choctaws, approved February 14, 1903, by the Secretary of the Interior, but who failed to remove within six months thereafter and are therefore not on the final citizenship roll of the Choctaw Nation.

As there were 1,643 identified Mississippi Choctaws who removed and are now Choctaw citizens, it appears that substantially one-half of the Indians identified as Mississippi Choctaws entitled under article 14 of the treaty of 1830 are denied their rights. This number is reduced to about 1,200 by deaths occurring during the period of years which has since elapsed. The classes of Misissippi Choctaws who have been identified but not finally enrolled are substantially as follows: First, 538 Mississippi Choctaws identified on the McKennon Roll but not identified on the roll of 1903.

Second, 525 Mississippi Choctaws on the McKennon Roll of 1899 and also on the roll of identified Choctaws approved February 14, 1903.

Third, About 500 other Mississippi Choctaws on the roll of identified Mississippi Choctaws approved in 1903 and supplemental additions in 1904-5-6.

In consideration of the foregoing, your petitioners on their own behalf and on behalf of other persons similarly situated pray:

1. That this Honorable Court may by its decree and judgment herein declare and decree that the funds involved in the claim herein ascertained by the Choctaw Nation is not alone the property of the Choctaw Nation as now constituted, but that your intervening petitioners have an interest therein which must be adjudicated and determined before said funds are awarded or distributed.

2. That your intervening petitioners on their own behalf and on behalf of others similarly situated have an ascertainable interest in said funds and to the end that said interest may be determined and awarded a roll may be made determining

what persons now constitute the Mississippi Choctaws not included in the present final citizenship rolls of the Choctaw Nation.

3. And for such other and further relief as equity and justice may require.

FLORENCE STARK,
GEORGE POLK,
SIMPSON TUBBEE,
ALEX BYAIS,
FELIX STEPHENS,

WILLIAM E. RICHARDSON,

By J. E. ARNold,

Attorney in Fact.

Attorney for Intervening Petitioners.

STATE OF TEXAS,
County of Montague, ss:

Florence Stark, being first duly sworn to, on oath, deposes and says that she is one of the petitioners named in the foregoing petition by her subscribed; that the facts therein stated are true, and those stated upon information and belief .she is informed and believes are true.

FLORENCE STARK.

Subscribed and sworn to before me this 18th day of October 1926.

Messrs. William B. Johnson and W. F. Semple for plaintiff. Johnson & McGill were on the brief.

Mr. Charles H. Small, with whom was Mr. Assistant Attorney General Harry W. Blair, for defendant. Mr. George T. Stormont was on the brief.

This case having been heard by the Court of Claims, the court, upon the evidence, makes the following—

SPECIAL FINDINGS OF FACT

I

By the act of Congress approved June 7, 1924 (43 Stat. 537), as modified by joint resolution (44 Stat. 568), it was provided—

"That jurisdiction be, and is hereby, conferred upon the Court of Claims, notwithstanding the lapse of time or statutes of limitation, to hear, examine, and adjudicate and render judgment in any and all legal and equitable claims arising under or growing out of any treaty or agreement between the United States and the Choctaw and Chickasaw Indian Nations or Tribes, or either of them, or arising under or growing out of any act of Congress in relation to Indian affairs which said Choctaw and Chickasaw Nations or Tribes may have against the United States, which claims have not heretofore been determined and adjudicated on their merits by the Court of Claims or the Supreme Court of the United States. "SEC. 2. Any and all claims against the United States within the purview of this act shall be forever barred unless suit be instituted or petition filed as herein provided in the Court of Claims within five years from the date of approval of this The claim or claims of each of said Indian nations shall be presented separately or jointly by petition in the Court of Claims, and such action shall make the petitioner party plaintiff or plaintiffs and the United States party defendant. The petition shall be verified by the attorney or attorneys employed to prosecute such claim or claims under contract approved by the Commissioner of Indian Affairs and the Secretary of the Interior, and said contract with such Indian tribe shall be executed in behalf of the tribe by the governor or principal chief thereof, or, if there be no governor or principal chief, by a committee chosen by the tribe under

act.

the direction and approval of the Commissioner of Indian Affairs and the Secre tary of the Interior: Provided, however, That the attorney or attorneys employed as herein provided may be assisted by the regular tribal attorney or attorneys employed under existing law under direction of the Secretary of the Interior, with such additional reasonable and necessary expenses for said tribal attorneys to be approved and paid from the funds of the respective tribes under the direction of the Secretary of the Interior, as may be required for the proper conduct of such litigation. Official letters, papers, documents, and records, or certified copies thereof, may be used in evidence, and the departments of the Government shall give access to the attorney or attorneys of the above-named Indian nations to such treaties, papers, correspondence, or records as may be needed by the attorney or attorneys of said Indian nations.

"SEC. 3. In said suit the court shall also hear, examine, consider, and adjudicate any claims which the United States may have against said Indian nations, but any payment which may have been made by the United States upon any claim against the United States shall not operate as an estoppel, but may be pleaded as an offset in such suit.

"SEC. 4. That from the decision of the Court of Claims in any suit prosecuted under the authority of this act, an appeal may be taken by either party as in other cases to the Supreme Court of the United States.

"SEC. 5. That upon the final determination of any suit instituted under this act, the Court of Claims shall decree such amount or amounts as it may find reasonable to be paid any attorney or attorneys, other than the regular tribal attorney or attorneys employed under existing law, employed by said Indian nations for the services and expenses of said attorneys rendered or incurred subsequent to the date of approval of such contract: Provided, That in no case shall the aggregate amounts decreed by said Court of Claims for services and expenses be in excess of the amount or amounts stipulated in the contract of employment, or in excess of a sum equal to 10 per centum of the amount of recovery against the United States.

"SEC. 6. The Court of Claims shall have full authority by proper orders and process to bring in and make parties to such suit any or all persons deemed by it necessary or proper to the final determination of the matters in controversy. "SEC. 7. A copy of the petition shall, in such case, be served upon the Attorney General of the United States, and he, or some attorney from the Department of Justice to be designated by him, is hereby directed to appear and defend the interests of the United States in such case."

II

Under the provisions of the act of June 7, 1924, supra, the original petition herein was filed on February 2, 1927, by the Choctaw and Chickasaw Nations as plaintiffs, and, leave of Court having been obtained to sever the various counts in the petition contained, an amended petition was filed on April 20, 1934, by the Choctaw Nation as sole plaintiff.

III

On September 27, 1930, at Dancing Rabbit Creek, a treaty was concluded between the United States and the Choctaw Nation of Indians (7 Stat. 333; 2 Kapp. 310), which treaty was proclaimed February 24, 1831, and reads in part as follows:

"ARTICLE I. Perpetual peace and friendship is pledged and agreed upon by and between the United States and the mingoes, chiefs, and warriors of the Choctaw Nation of Red People; and that this may be considered the treaty existing between the parties, all other treaties heretofore existing and inconsistent with the provisions of this are hereby declared null and void.

"ARTICLE II. The United States under a grant specially to be made by the President of the U. S., 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, beginning near Fort Smith where the Arkansas boundary crosses the Arkansas River, 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 Red River; and down Red River to the west boundary of the Territory of Arkansas; thence north along that line to the beginning. The boundary of the same to be agreeably to the treaty made, and concluded at Washington City in the year 1825. The grant to be executed so soon as the present Treaty shall be ratified.

"ARTICLES III. In consideration of the provisions contained in the several articles of this treaty, the Choctaw Nation of Indians consent and hereby cede to the United States, the entire country they own and possess, east of the Mississippi River; and they agree to remove beyond the Mississippi River, early as practicable, and will so arrange their removal, that as many as possible of their people not exceeding one-half of the whole number, shall depart during the falls of 1831 and 1832; the residue to follow during the succeeding fall of 1833; a better opportunity in this manner will be afforded the Government to extend to them the facilities and comforts which it is desirable should be extended in conveying them to their new homes.

"ARTICLE IV. The Governnent and people of the United States are hereby obliged to secure to the said Choctaw Nation of Red People the jurisdiction and government of all the persons and property that may be within their limits west, so that no Territory or State shall ever have a right to pass laws for the government of the Choctaw Nation of Red People and their descendants; and that no part of the land granted them shall ever be embraced in any Territory or State; but the U. S. shall forever secure said Choctaw Nation from, and against, all laws except such as from time to time may be enacted in their own national councils, not inconsistent with the Constitution, treaties, and laws of the United States; and except such as may, and which have been enacted by Congress, to the extent that Congress under the Constitution are required to exercise a legislation over Indian affairs. But the Choctaws, should this treaty be ratified, express a wish that Congress may grant to the Choctaws the right of punishing by their own laws, any white man who shall come into their nation, and infringe any of their national regulations.

"ARTICLE XIV. Each Choctaw head of a family being desirous to remain and become a citizen of the States, shall be permitted to do so, by signifying his intention to the agent within six months from the ratification of this treaty, and he or she shall thereupon be entitled to a reservation of one section of six hundred and forty acres of land, to be bounded by sectional lines of survey; in like manner shall be entitled to one-half that quantity for each unmarried child which is living with him over ten years of age; and a quarter section to such child as may be under 10 years of age, to adjoin the location of the parent. If they reside upon said lands intending to become citizens of the States for five years after the ratification of this treaty, in that case a grant in fee simple shall issue; said reservation shall include the present improvement of the head of the family, or a portion of it. Persons who claim under this article shall not lose the privilege of a Choctaw citizen, but if they ever remove are not to be entitled to any portion of the Choctaw annuity."

IV

Within a relatively short period after the ratification of the Treaty of Dancing Rabbit Creek, many members or citizens of the Choctaw Nation emigrated to the Choctaw country in the West, and those members of the tribe and the descendants thereof who chose to remain in Mississippi, either permanently or who after a period of many years removed therefrom to the Choctaw country in the West, came to be known and designated as "Mississippi Choctaws."

V

The Mississippi Choctaws, as such have never been parties to any treaty with the United States, and have never, by treaty or otherwise, executed a relinquishment of their rights of Choctaw citizenship preserved to them under the terms of article XIV of the treaty of September 27, 1830.

After the Treaty of Dancing Rabbit Creek, the Choctaw Nation was a sighatory to but four other treaties with the United States, in none of which was any right, title, or interest of the Mississippi Choctaws disturbed. The four treaties were those of:

January 17, 1837 (11 Stat. 573), permitting the Chickasaw Nation to form a district in the Choctaw country in Indian Territory, and providing for certain adjustments of rights between the Choctaw and Chickasaw Nations:

November 4, 1854 (10 Stat. 1116), providing for the running of a boundary line between the Choctaw and Chickasaw districts in the territory of the Choctaw Nation;

June 22, 1855 (11 Stat. 611), concerning the adjustment of differences then existing between the Choctaw and Chickasaw Nations; and

April 28, 1866 (14 Stat. 769), readjusting relations after the Civil War between the Choctaw Nations and the United States.