This file was submitted by: Cindi McChristian, covers Belva J. Lockwood
addressing the U. S. Senate in the matter of the Eastern Cherokees, in about 1906

Posted: 5/09/2010  Eddings list members Homepage

STATEMENT OF MRS. BELVA J. LOCKWOOD.

Mrs. Lockwood. Mr. Chairman and gentlemen, I was in doubt about the propriety of bringing this question before you; but I was requested to do so, and as the qommittee has kindly consented to permit me to occupy about five minutes of its valuable time, I will try and be as brief as possible. I am here representing about 6,000 Cherokees. If this matter of the collection of this judgment is carried through it will do a great wrong to a great many people. This judgment as you all know was secured in the Court of Claims for $5,000,000 and was affirmed in the Supreme Court on the 30th of April last, and the amount was appropriated by your honorable body, the Senate of the United States, on June 30 last. In all our talks before the courts and before the committees we laid stress on the fact that the wording of the treaty is that this money shall be distributed per capita, and the judgment was that it was to the Eastern Cherokees-that was the judgment of the Court of Claims, which as I stated was affirmed by the Supreme Court, but it was modified and the judgment of the United States Supreme Court is all right.

Now, we have no fault to find with the judgment as rendered or fixed by the United States Supreme Court, but it was sent back to the Court of Claims for the purpose of fixing the court expenses and the amount of fees to be allowed attorneys; but Judge Peelle took it upon himself-I am not here to criticise Judge Peelle; I could not afford to do it if I wanted to, for I am an attorney in good standing before that court, and if I were to criticise here one of the judges of that court I might jeopardize my standing; but he modified the decree and found that the fund should be credited to the roll of 1851, whereas the fund was created from the fund of 1835 in North Carolina, and this land, as your honor knows, was the source from which the fund was created. You have been Secretary of the Interior (to Senator Teller) and you know how it is. The very foundation of that fund rests upon the treaty of 1835, and it is these people and their descendants that are entitled to this money, in addition with the parties on the roll of 1851. Now I know nothing about that roll of 1851, but I do know that there is an attempt by the Interior Department-I doubt, though, if the Secretary knows about it-but I call your attention to the fact that the large proportion of the people who are entitled to this fund can't get any part of this fund because they can't substantiate the fact that they are entitled to it. They are here in the Territory, descendants of Indians who have been here since the beginning, but they can't produce this evidence, because Judge Peelle modified the judgment by rinding for the roll of 1851. There nas never been but one person, to my knowledge, who has the courage or the hardihood to reverse a decision of the United States Supreme Court, and that person is Judge Peelle. Now, we have a portion of the people here who were represented in the judgment rendered in the United States Supreme Court, and I am here representing these people; but Judge Peelle has gone back of my people and the Supreme Court and found for the people represented by the roll of 1851. Yes, gentlemen, he has found for the treaty of 1851, although the Supreme Court of the United States, the tribunal which all mylife I have been taught to believe was the highest in the United States-the court absolutely of last resort-has been reversed by a judge of an inferior court. I desire to call your attention to that as aunique situation even in your experience. United States Senators I don't believe would have the hardihood to attempt that feat. Now, gentlemen, that expect he is a very busy man, but he should give the time to listen to an explanation of a proposed injustice and outrage on many thousands of defenseless people. These people are poor and ignorant and they are not able to hire eloquent and able advocates, men of standing and position, who any time can have the ear of the Secretary or anyone else they desire to reach.

Q. Suppose we did speak to him and he pays no attention to us? I have known that to be done before now.-A. Well, if you do so you will be more successful than we have been. We have tried to unsuccessfully get this matter before him. He is too busy to see me, so he says. Whenever 1 undertake to do a thing I go through with it to the end and leave no effort untried. That is what I am doing now, and that is the reason I am appealing to you gentlemen to do this for these people. I never try, though, to do more than I have reason to believe I can accomplish. I will turn the last stone, and if it does not do the business I have done my best and feel exonerated. I think, though, that you can with perfect propriety call the attention of the Secretary to what you heard in the Indian Territory.

Q. From you?-A. Yes,sir; from me; and I think he would as soon it came from me as any other person. I am stating facts. I am not anxious, though, that you call nis attention to it as coming from me. Just so his attention is called to it is sufficient. I once tried to see the Secretary of War when Grant was President and I could not, and so it is with the Secretary of the Interior now. I notice that Members of Congress come in without any card and seem to have no difficulty in seeing him, and lots of other people, too, can go right in to see him, and I can't get to see him even with a card. Iwantto see him, tried very hard to see him w^hen I was there, and will go all the way back again to see him if he will indicate that I may do so. I want to present this matter to him.

Senator Long. Did you have any trouble in seeing the Secretary of Interior in 1885?

Mrs. Lockwood. Yes, sir; indeed I did. He told me once he did not want to see me. [Laughter.] I don't know that he wants to see me to-day. I rather incline to the belief that he doesn't; but that time I know he asked me if I couldn't see somebody else. It was evident he did not want to see me.

Senator Teller. That is correct.-A. And I sent him back word that I could see some other man just as well, and I did see the other man, and I'll say that I got through with the matter I had in hand all right. And 1 think it was lucky that I got to that other man, for I fancy I had better success with him than I probably would have had with the honorable Secretary himself.

Senator Teller. Well, that may be right, too.-A. But, gentlemen, I confess that I am a little stumped on this business. I confess that this case has got me stumped, and I don't know how to do. The course the Secretary made me follow away back there will not fit this case. A clerk in the Interior Department can't reach Judge Peelle. He is bigger than any clerk there. It will take the Secretary to do that business, though I have some doubt about his being able to control a man who thinks he is bigger than the United States Supreme court.

By Senator Long :

Q. Do you think the Secretary can reach the judge?-A. I have given up thinking about it. He ought to be able to do it.

Eliza Mayberry And Harvey A. Mayberry, Et Al., plaintiffs,

is.

The Cherokek Nation, Defendant.

reconsider the application of Eliza Maybcrry and Harvey A. Mayberry, etal., for enrollment as Cherokee citizens by blood of the Cherokee Nation.

To the Commission of the Five Civilized Tribes, and to Ihe above defendant:

Comes now Harvey A. Mayberry. for himself and his mother, Eliza Mayberry, and states that Eliza Mavberry is a daughter of Francis Blackburn and granddaughter of Elizabeth Eddings, (laughter of Dave Weaver, whose name is on the roll of the Cherokee Nation taken in 1835 in the State of Georgia, No. 7, p. 120; that it was continued on the roll of the Cherokee Nation in Indian Territory for a time, but that Dave Weaver was unable to remove to Indian Territory before his death, but that his descendants, among whom are Eliza Mayberry and her heirs, did so remove to the Indian Territory on or about 1889 and now reside at or near Pryor Creek, Indian Territory.

First. That they made application for admission to citizenship on the liith dav "f July, 1896, and that in the report Dave Weaver was found to be of Cherokee Indian blood, and duly recorded with six boys and one girl on the roll of 1835. and living near Sharps Mountain Creek, State of Georgia; that the proof shows the daughter's name to have been Elizabeth, who married a man by the name of Eddings, and that she had a daughter by the name of Frances, who married a man by the name of Blackburn, who was the mother of Eliza Maybeny.

Second. That they are Cherokees by blood, and have resided in the Cherokee Nation for nearly 20 years; that their application was made prior to the 1st day of December. 1905, and that, according to the Curtis Act of April 2(i, 190(1. paragraph one. they believe that they have a right to reopen both the application of Eliza Mayberry and of Harvey A. Mayberry et al., and to furnish further proof if required.

Third: That the decision of the Commission to tlu> Five Ci vilizi'd Tribes, denying the application of the said Eliza Mayberry and Harvey A. Mayberry et al., for enrollment as Cherokee citizens by blood of the Cherokee Nation, is contrary to the opinion of the Assistant Attorney-General, Frank L. Campbell, rendered in the application of George Tinney, of April 10, 190G, and that such decision can not, therefore, be used as a preecdent.

Fourth: That said decision is not supported by the law and the evidence. Wherefore, the said Eliza Mayberry, for herself and her children, and the said Harvey A. Mayberry, her son, for himself and his family, all of whose names and applications you have, prays that their applications for enrollment as Cherokee citizens by blood of the Cherokee Nation be reopened and reconsidered by the Commission to the Five Civilized Tribes.

Belva A. Lockwood,

Attorney for Plaintiffs.

Bei-va A. Lockwood,

Attorney for Plaintiffs.

This is to certify that I am the officer having the custody of the records pertaining to the enrollment of the members of the Choctaw, Cliickasaw, Cherokee, Creek and .Seminole tribes of Indians, and the disposition of the land of said tribes, and that the above and foregoing is a true and correct copy of a motion to reopen the Eliza Mayberry Cherokee enrollment case filed by Harvey Mayberry.

Commissioner. Muskogee, Indiam Territory,

October 29th, 1906.

[Indorsed:] Department of the Interior, Conim'r to the Five Civilized Tribes. Filed Jany. 16, 1906. Tarns Bixby, Commissioner.

Before the Commission to the Five Civilized Tribes.

In the matter of the application of Eliza Mayberry et al., for citizenship in the Cherokee

Nation.

i

Comes now the petitioners and respectfully pray that under the provisions of the act of Congress approved April 26, 1900, this their said application for enrollment as citizens of the Cherokee Nation may be received, considered, and granted, and that they be given an opportunity to present proof and argument showing their right to enrollment as citizens by blood of the Cherokee tribe of Indians.

They respectfully show that heretofore they made application to the Commission to the Five Civilized Tribes for enrollment as citizens of the Cherokee Nation, and that this their said cause was heard and decided adversely to them on October 12:5. 189(>, no

appears upon the Cherokee roll of the year 1835.

Respectfully submitted.

Wm. Foster,

On Behalf of Himself and the other Applicants.

Address: Win. Foster, Claremore, Ind. Ter. Belva A. Lockwood, attorney, Washington.

This is to certify that I am the officer having custody of the records pertaining to the enrollment of the members of the Choctaw, Chiokasaw, Cherokee, Creek and Seminole tribes of Indians, and the disposition of the land of said tribes, and that the above and foregoing is a true and correct copy of a motion to reopen the Eliza Mayberry Cherokee enrollment case filed by Wm. Foster.

Tams Bixby,

Commission to the Fire Cinh:ed Tribes. By Hal Belpord, Clerk. Muskooee, Indian Territory,

October >Mh, 1906.

I, \V. P. Johnston, a notary public, hereby certify that the above and foregoing i> a true and correct copy of a certified copy or copies of motions to reopen Eliza Mayberry Cherokee enrollment case.

[seal.] W. P. Johnston, Notary Public.

My commission expires May 16, 1908.

[Indorsed.] Depart, of the Intr., Commr. to the Five Civilized Tribes. Filed Jany. 13, 1906. o Tarns Bixby, Commissioner.

United States Op America,

Indian Territory, Northern Judicial District:

Eliza A. Mayberry et al. r. The Cherokee Nation and The United States, defendants.

The claimant, who represents her family also, is daughter of Francis Blackburn, descendant of Dave Weaver, on roll of 1835, &c.

REPLY BRIEF FOR CLAIMANTS.

Come now the claimants in the above cause in answer to brief of Cherokee Nation opposing their motion for a reopening, and a reconsideration of their application for enrollment as citizens by Wood of the Cherokee Nation, and assert that the records in the possession of the Commissioner of the Five Civilized Tribes do show that an application was made for the enrollment of the applicants prior to December 1. 1905, as instanced by certified copies of such enrollment in our possession, with the proof therein. The Laura E. Aikcn case cited by defendant has no pertinency as applied to the case at bar. The hair-splitting quibble about no "continuing application" is too small for the Cherokee Nation, and much less for the United States to use against a family who is of the same blood as the former, a_nd the helpless wards of the latter. In every Department of the Government, an application for relief in the nature of an indebtedness or a right, is an application for all time, and a second application is promptly returned to the attorney as a "duplicate." The meaning of the English language has not changed, nor has any new dictionary been published to furnish arguments with which to defeat these poor Cherokees of the privilege of a home which was guaranteed to them and to their fathers forever, or so long as the United States exists, and what right the Cherokee Nation (so-called, a political body) has to deprive some portion of its tribal members by its fiat or its greed, of their legal and equitable rights, their God-given privileges-for only a few decades ago the land was all theirs from the eastern boundary of the Indian Territory to the Pacific Ocean, and was guaranteed to them by treaty with the United States to them and their defendants forever, we can not see.

, Shocking as has been the treatment of the Indian by the Government in many instances, it has never contemplated, nor have any of the enactments of Congress, the drastic measure of depriving any Cherokee Indian of a home if he asked it. The Commission of the Five Civilized Tribes was created for the very purpose of seeing that every person in the United States, no matter where residing, of Cherokee Indian blood, should have a home. Now was it his duty to hunt up the Commission? The duty of the Commission was to hunt him. Nor was it his duty to make formal and so-called legal applications at stated times and intervals. He could walk into the Commission. whose doors were open to him, and on proof of Cherokee Indian blood, was entitled to enrollment. The clique of Cherokees known as the Cherokee Nation have no more title to this land than the Cherokees outside of it. The treaty declares it to be the common property of the whole Cherokee people, not of the Cherokee Nation or of the Commission of the Five Civilized Tribes. They are only the instruments for its distribution in a fair and equitable manner to all persons proving Cherokee Indian blood, and the Indians were not required by the treatyor the statutes, in order to make such application, to reside within the territorial limits of the Indian Territory-only the United States. Sec act Feb. 8,1887, and the amendment, May 3,1901, Sec. ('., chap. 119. U. S. R. S., No. 24, which made,of every Indian in the Territory a citizen of the United States, "and entitled to all the rights, privileges, and immunities of citizenship, whether said Indian has been or not by birth or otherwise, a member of any tribe of Indians within the territorial limits of the United States, without in any manner impairing orotherwiseaffectingthe right of anysuch Indian to tribal or other property." Besides, some of the parties claiming and honestly entitled have been driven out as intruders for failure of the Commissioner to enroll.

Nor is 1 he right to make this application for enrollment, or application for a reopening:, and a rehearing limited to the Curtis Act of April 26, 1906. The right exists at any time and at all times in any court to reopen any case for cause shown, as that uf new proof, or of new conditions, and courts are always open to claimants for this purpose. The statutes of the several States giving to an adverse possessor a title after 20 or 25 years of undisturbed possession, still leaves a cloud upon his right that ran only be removed by a deed from the former owner.

These people are here, as thev ought not to be, demanding rights which should be theirs on simple request. If the 7.000.000 acres is exhausted the Government has plenty more of unlocated land, but it is not exhausted. There are still rich and fertile fields belonging to the Cherokee people, lhat the avaricious eyes of intruders and outsiders are watching and coveting with deep interest, that should be given to these claimants. It is their right. It is not their fault that some of their ancestors whose lands were sold to secure this land died in the East before they were able to remove to the Indian Territory, and thus did not have their names inscribed on the rolls of the Cherokee Nation, whereat the attorney for the Cherokee Nation with all the authority of an oracle, rises up and says, as though it were a crime, that ''their names are not found inscribed on any roll in the Cherokee Xation." The civilized world looks on aghast at the treatment of the remnant of these poor people at the hands of their own brethren, the Cherokee Nation, now holding on as a body politic without power, except to settle their accumulated accounts. What right have they to say who shall or shall not inherit the earth? Can they change the blood and the ancestry of these claimants? The contention is not that they are not Cherokees, but that they have not complied with certain arbitrary rules and regulations that it would not be supposed that a Cherokee Indian under ordinary conditions, many of them unable to read or write the English language, would comply with.

The right to reopen under the recent, act of Congress can not be denied. It was for these very cases and similar ones that the statute was enacted. To do justice to unfor tunates who had failed for want of their knowledge of evidence or of opportunity to prove their case.

Under the treaty with the Cherokees of May G, 1828, it was agreed by the United States that all Cherokees both east and west should have a permanent home in the Indian Territory on seven million acres, the boundary of which is described in the Treaty.

While tlu- treaty was made with the Western Cherokees, the home established by the treaty was for all persons of Cherokee blood, no matter where they might be residing, and every Cherokee was given the right to have a home on said seven million acres at any time that he might see fit to go there. No limit on the time the persons of Cherokee blood must go to their permanent home is stated in the treaty. It was clearly the intention both of the United States and the Cherokees that the seven million acres in the Indian Territory was to be a permanent reservation for all persons of Cherokee blood, no matter where they resided at the time the treaty was made.

A treaty is a contract and no statute of Congress can change its terms unless the Cherokees agree to the change. As the seven million acres was set apart as a permanent home for all persons of Cherokee blood, all Cherokees and their descendants have an undivided interest or right of occupancy in the seven million acres. No subsequently organized political body composed of but a portion of the Cherokee people can deprive one single Cherokee of his right to a permanent home on the seven million acres.

When the treaty of 1828 was executed the title to a permanent home forever on the seven million acres vested in every person of Cherokee blood and only their own consent could deprive them of that title. The time that thev were to move to their permanent home on the seven million acres was left to the Indian's own convenience, and no subsequent legislation by Congress nor agreement by a so-called "Cherokee Nation " or political organization can deprive a single Indian of his right to have a place on the seven million acres when he should see lit to remove there. No statute of limitation can run against an Indian for he is under a disability as a minor or femme covert, and no statute can run against a treaty, and no subsequent statute can place a limitation on an Indian's vested right.

In the treaty with the Cherokees of 1810 it is specifically stated-

"That the lands now occupied by the Cherokee Nation'shall be secured to the whole Cherokee people for their common use and benefit."

This provision was placed in the treaty of 1846, for the very reason that the Cherokee Nation or "old settlers" denied the right of all other Cherokees to have a home on the seven million acres ceded to the Cherokee people by the treaty of 1828.

This treaty of 1846 forever settled the rights of all Cherokees, no matter where located in the United States to a permanent home on the seven million acres. It established their right and denied the right of the old settlers or Cherokee Nation as a nation to deprive the outside Cherokees of a right to a home on the seven million acres.

The decision of the United States Supreme Court in the case of Eastern band of of Cherokees vs. United States and Cherokee Nation (117 U. S., 288) does not change anything herein contended for.

From the foregoing it is clear that in making up a roll for allotment of the lands in severally every one of ''the whole Cherokee people for their common use and benefit " is entitled to an allotment. The case is not parallel with the funds derived from the sale of the outlet. In that case the nation sold surplus lands for which it had no further use and that was not part of the homestead of the whole Cherokee people. The seven million acres was perpetually reserved as a home and resting place for the whole Cherokee tribe, and when set apart for that purpose by a solemn contract with the United States could not be disturbed by any act of Congress nor any act of a so-called nation, which fn order to increase its own allowance may desire to cut them off on various pleas of "more evidence'' and "not on the roll," when they have been left off by the very acts of the party appearing against them, without violating the obligations of a contract. The consent of the "whole Cherokee people" was necessary to deprive them of the home which the United States guaranteed should be permanent.

Under the llth section of the act of June 28, 1898, the Commission of the Five Civilized Tribes is directed to "proceed to allot the exclusive use and occupancy of the surface of all the lands of said nation or tribe susceptible of allotment among the citizens thereof as shown by said roll."

Under section 21 of the same act the Commission, in making up the roll for allotment, must take all persons of Cherokee blood whose names are found on any other rolls than the roll of 1880, except those whose names have been placed thereon by fraud or without authority of law.

It is clear from the act that it was the intention of Congress to give to every person of Cherokee blood an allotment of land whether on the roll of 1880 or any other roll. The distinction Congress makes, however, between the roll of 1880 and other rolls i.s that all names on the roll of 1880 are confirmed, whether placed there by fraud or not. but of the other rolls the Commission is given authority to omit all names not legally thereon. The right to omit is limited to fraud and where there is no authority of law. It is the duty of the Commission to place on the allotment roll the namer; of all descendants of any person whose name is on any Cherokee roll where it is there without fraud. This leaves but two questions for the Commission to determine: (1) Whether the name is on the roll legally, (2) whether, if said person be dead, there are any descendants living. In the latter case the Commission must find the names of Ihose descendants and place them on the allotment roll. It is not the duty of the descendants to apply for enrollment, but of the Commission to find the descendants. The Indians are in the main uneducated, supposed to be unaware of their rights, and incapable of asserting them. Had it been otherwise, no Commission would have been required. The law does not compel the Cherokee to get his name on the roll or lose his land, but directs the Commission to see that all who are on any roll or their descendants are put on the allotment roll. In other words, the burden of making an allotment roll complete is placed on the Commission, not on the Indians. Congress did not intend to deprive a single Cherokee of his land because of his inactivity or ignorance, and therefore relieved him of doing anvthing.

In the case under consideration the attorney for the Cherokee Kation cites the Laura E. Akin case, decided by the Commissioner January 13, 1!(06. The I.aura E. Akin decision, even if good law, which the claimant denies, is no authority, as thtact of April 20, 1900, specifically gives the right of a claimant to have his case reconsidered, provided he has made an application at any time prior to December 1, 1905- which your records show this claimant has done-provided he has made his or her motion for reconsideration within sixty days after the passage of the act, which they have also done.

The act of April 26, 190C, does not refer to any particular application, but gives the right of reopening and reconsideration to any claimant who has ever had an application for enrollment rejected, no matter when made, provided said application w:i? made some time prior to December 1, 1905.

The claimant in this case made an application which was prior to December 1, 1905 The application was rejected, A motion for reconsideration was made in the case within sixty days after the passage of the act of April 20, 1900; therefore under the provisions of that act she is entitled to a reopening and reconsideration of her case.

It is clear that the act of April 20. 1900: was intended to give the very op|x>rtunity this claimant requests by this motion. There were numerous claimants whose applications were rejected who subsequently discovered evidence sufficient to establish their right to go on the allotment roll. To relieve these persons, Congress passed the act of April 20.1900. The Laura E. Akin, whose case the attorney for the nation cites, was one of the unfortunates whom the act of April 20, 1906, was intended to relieve, and under that act she is entitled to have he r case reopened and reconsidered.

The claim of the attorney for the nation that two applications are necessary to establish a right to reopen is ridiculous on its face. In every department of the Government where an application from a claimant is on file, or has once been made, no second application will be considered. The rejection of an application because the proof which accompanies it is not sufficient does not wipe out the application. The right to move for a reconsideration always exists, and the right to ask for reargument or to reopen to furnish new evidence is always open to a claimant as long as the roll is not completed, as it was not in this case even without the aid of the act of April 26, 1906. The claimant contends that the citations advanced by the attorney for the Cherokee Nation do not apply to the case under consideration, but that the act of April 26. 1906,

fives a right to claimant to have her case reopened and reconsidered, and that the 1st section of the act of June 28, 1898, which is conferred by the Cherokee agreement of January 14. 1899, entitled claimant to go on the allotment roll. Respectfully submitted.

Belva A. Lockwood,

Attorney for Claimant. 619 F street NW., Washington, D.G.

In the matter of the motion to reopen and reconsider the application of Eliza A. Mayberry et al., as citizens of the Cherokee Nation by blood.

REPLY OF THE CHEROKEE NATION.

Comes now the Cherokee Nation and resists the motion to reopen and reconsider the above application of the applicants for enrollment as citizens by blood of the Cherokee Nation, and forgrounds says that the records in possession of the Commissioner to the Five Civilized Tribes do not show that any application has been made for the enrollment of the applicants prior to December 1, 1905. The records do show that under the act of Congress approved June 10, 1896, application was made for the applicants herein and that they were rejected, and under the ruling of the Department in the case of Laura E. Akin (I. T. D., 9114-1906), dated May 25, 1906, there was no "continuing application," and therefore another application was necessary to be made before December 1, 1905, and as the records show no application the motion to reopen and reconsider should be denied. In the Laura E. Akin case the Department held:

"As the Commission to the Five Civilized Tribes had jurisdiction when it denied, under the provisions of the act of June 10, 1896, the principal applicant's application for recognition as a citizen of the Cherokee Nation, there could be no 'continuing application.' as contended bv the attorney for the claimants."

Section 1 of the act of Congress approved April 26, 1906 (Public, No. 129), provides:

"That after the approval of this act no person shall be enrolled as a citizen or freedman of the Choctaw. Chickasaw, Cherokee, Creek, or Seminole tribes of Indians in the Indian Territory, except as herein otherwise provided, unless application for enrollment was made prior to December first, nineteen hundred and five. * * *"

The Indian appropriation bill approved June 21, 1906 (Public, No. 258), provides that

''The fact that the name of a person appears upon a tribal roll of any of said tribes shall not be construed to be an application for enrollment."

The case at bar is exactly similar in every respect to the Laura F/. Akin case, and for the reasons set forth in that opinion this motion to reopen and reconsider should be denied.

Respectfully submitted.

W. W. Hastings,

Attorney for the Cherokee Nation.

(Copy.)

Eliza Mayberry et al. v. Cherokee Nation. No. 78.

Mr. N. A. Gibson, special master to whom this case was referred, submits the following report:

In the United States court in the Indian Territory, northern district, at Muscogee. Eliza Mayberry et al. v. Cherokee Nation. No. 78. Special master's report.

I, N, A. Gibson, special master herein under the order of the court heretofore made, show to the court that under said order I have examined the pleadings and proof herein, which are herewith filed and made a part hereof, and that 1 find aa follows:

I. That this cause was filed on the 8th day of September, 1890, on which day application was made to the Commission to the Five Civilized Tribes for citizenship by blood of the Cherokee Nation of Indians, that the said cause \yas tried by said Commission on the 23d day of October, 1896, and the application denied, no reason being given for the said decision, and from this decision the applicants appeal to this court on December 21, 1897.

II. That this application was made by Eliza Mayberry, Newton J. Eddings, Amanda E. Lewis, Rosa C. Blankenship, Harvey A. Mayberry, John W. Blackburn, and John W. Blackburn, jr., Andrew A. Blackburn, Emma Shoemaker, Levenv Lovelace, Ophelia Curry, John R. Middleton, Charles G. Middleton. Andrew S. Edelings. Susan C. Foster, Thomas E. Foster, John W. Foster, Win. F. Foster, Sarah J. Owen, Luther Blackburn, Jane Brown, Mary F. Edwards, Cell Owen, Pleasant S. Blackburn, William J. Blackburn, Andrew E. Blackburn, Sarah H. Jourdan, and Mary Hoard and her three children, all of whom are the great-grandchildren and great-great-grandchildren of Dave Weaver, who lived among the Eastern Cherokees in what is now the State of Georgia and who is claimed to have been a Cherokee Indian by blood and a recognized member of the Cherokee Nation.

III. That the parties filed in support of their application the affidavits of Andrew E. Blackburn, W. J. Blackburn, Thomas J. Taylor, Richard D. Eddings, James B. Eddings, C. R. Harris, John F. Eddings, Samuel R. Hill, Joseph Allsup, Andrew S. Eddings, and John Ross, and a certified extract from the roll of the Cherokee Nation, taken in the year of 1835, showing that Dave Weaver, his six boys and one girl were enrolled as Cherokees, and that he lived in Cherokee County, Ga., near Sharp Mountain Creek; that the proof shows that Dave Weaver had a daughter by the name of Elizabeth who married a man by the name of Eddings, and that she had a daughter by the name of Frances who married a man by the name of Blackburn and who was the mother of Eliza Mayberry, the principal claimant herein, whose maiden name was Blackburn; that these claimants are residents of the Cherokee Nation, Indian Territory, where they have resided for the past eight years.

IV. That the claimants contend that under the showing made by them that Dave Weaver's name appears upon the roll of the Cherokee Nation for trie year 1835, they being now residents of th,e Cherokee Nation, they are entitled to be admitted to citizenship in the Cherokee Nation as citizens by blood, while the Cherokee Nation contends that Dave Weaver's name does not appear on the roll of the Cherokee Nation since the removal west to the present location, and that hence under the law applicable to cases of this nature these claimants are not entitled to be admitted to the Cherokee Nation as citizens thereof. The premises considered, I find that these claimants are the descendants of Dave Weaver, whose name appears upon the roll of the Cherokee Nation for the year 1835; that the proof does not show that the said Dave Weaver ever came to the present Cherokee Nation or was enrolled here as a member thereof; that these claimants are persons of Cherokee Indian blood and descent, and that they are now residents of the Cerokec Nation, Indian Territory.

I respectfully ask that the court will allow me a reasonable fee for my services herein as special master.

Respectfully submitted this 8th day of June, 1897.

N. A. Gibson, Special Master. No exceptions taken. My fee paid.

By the Court: From this report it appears that the claimants base their right to be enrolled as citizens of the Cherokee Nation upon the fact that they are Cherokee Indians by blood. Some of the claimants have resided in the Cherokee Nation for seven or possibly eight years. It does not appear that any of them have ever been recognized as citizens of the Cherokee Nation as now constituted^ The judgment of the United States commission rejecting this case is affirmed, and the application of the claimants to be enrolled as citizens of the Cherokee Nation is denied.

I, N. A. Gibson, special master herein under the order of reference herein made by the court, certify that the above and foregoing is a true and correct copy of the report filed by me in the case of Eliza Mayherry et al. v. The Cherokee Nation and also of the judgment of the court rendered in said cause.

Witness my hand, at Muscogee, Ind. T., this the 16th day of December. 1899.

N. A. Gibson, Special ifnstrr.

(Copy.)

This is to certify that I am the officer having custody of the records pertaining to the enrollment of the members of the Choetaw-Chickasaw" Cherokee, Crwk, and St-minole tribes of Indians and the disposition of the land of said tribes and that the above and foregoing is a true and correct copy of a copy of the report of the special master in chancery in the matter of the application of Eliza Mayberry et al. for admission to citizenship in the Cherokee Nation by the United States court for the northern district of Indian Territory on appeal from the decision of the Commission to the Five Civilized Tribes, Cherokee court case No. 78, said copy being in the possession of this office.

Tamb Bixby, Commitriontr.

Muscooee, Ind. T., Augiut 16, 1906.

United States Op America, Indian Territory, Northern District, ss:

I, \V. P. Johnston, notary public for the district and Territory aforesaid, hereby certify that the within and foregoing copy of a copy of a copy of the report of the master in chancery in case 78. Eliza Mayberry et al. v. The Cherokee Nation, is true and correct.

Witness my hand and seal as such notary public on this 24th day of August, A. D. 1900.

[seal.] W. P. Johnston, Notary Public.

My commission expires May Hi. 1908.

[Supplemental statement of Mrs. Lockwooil, submitted in writing.]

Since the filing of motions to reopen and to rehear the claims of these Cherokees to citizenship named, from 3,000 to 4.000 tilings of intermarried white persons have been thrown back on the market or to the credit of the Cherokees fur distribution, because the United States Supreme Court, in October last, decided against them and rejected their claims to citizenship and allotment in all cases where the marriage had been solemnized after November 1, 1875, reaffirming the decision of the Court of Claims of May 18, 1905, and maintaining a law of the Cherokee Nation.

'fhero is no reason now why this land or its equivalent may not be distributed to persons of bona tide Cherokee blood whose applications for citizenship are tiled with the Commission to the Five Civilized Tribes, and have been for years past, instead of to white persons who have married Indians.

Respectfully submitted to the special committee on Cherokee and other tribal affaira in the Indian Territory.

Belva A. Lockwooh,

Attorney for Applicants.