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“Any Sane Person”: Race, Rights, and Tribal Sovereignty in the Construction of the Dawes Rolls for the Choctaw Nation1

Published online by Cambridge University Press:  10 January 2011

Katherine M.B. Osburn
Tennessee Technological University


This paper explores the role of race in the construction of tribal rolls for the Choctaw Nation of Indian Territory under the Dawes Act. Examination of two examples, enrollment of Choctaws in Mississippi and arguments presented in the 1907 hearings before the Senate Committee on Indian Affairs on the status of Choctaws of Indian and African American heritage, demonstrates that policymakers' primary concern in deciding the fate of mixedrace individuals was not the determination of Indian blood, so as to enroll them, but of African American blood, so as to exclude them. With this approach, members of the Dawes Commission used Indian policy to uphold the color line. The Choctaw Nation also drew sharp racial lines. Their concern, however, was not racial purity, but citizenship and tribal sovereignty. Attorneys for the mixed-blood claimants proffered a definition which they believed to be biological—they focused on their clients' percentage of Indian blood—while the Choctaw Nation's lawyers held to a political and legal definition embedded in notions of children's legitimacy, as granted through marriages sanctioned by the Choctaw state. Thus the same racial enrollment policy—exclusion of blacks—served two different functions in the implementation of allotment.

Theme: Native Americans and Indian Policy in the Progressive Era
Copyright © Society for Historians of the Gilded Age and Progressive Era 2010

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2 The freedmen's attorneys had petitioned the commission for this transfer but had been turned down. They were seeking a special act of Congress to overturn this decision. See Debo, Angie, The Rise and Fall of the Choctaw Republic (1931; Norman, OK, 1961), 275–76.Google Scholar

3 “Choctaw and Chickasaw Indians, Hearings before the Committee on Indian Affairs on the Choctaw and Chickasaw Indians,” 59th Congress, 2nd sess. (Jan. 30, 1907), S. doc. 257 (hereafter “Choctaw and Chickasaw Indians”), 10–15, quotation 11.

4 On the origins of race consciousness in European-Indian relations, Shoemaker, Nancy, A Strange Likeness: Becoming Red and White in Eighteenth-Century North America (New York, 2004).CrossRefGoogle Scholar Indians seem to have adopted some racial ideology over the eighteenth and nineteenth centuries, but this was only one of several ways in which Indians framed social relations. See Perdue, Theda, Mixed Blood Indians: Racial Construction in the Early South (Athens, GA, 2003).Google Scholar

5 Indians' embrace of racial ideology has been a topic of lively debate among historians and anthropologists. Native peoples' use of race as an organizing principle varied from culture to culture and often reflected social and cultural elements not found among Euro-Americans. For an overview, Brooks, James B., ed., Confounding the Color Line: The Indian-Black Experience in North America (Lincoln, NE, 2002).Google Scholar Also Garroutte, Eva Marie, Real Indians: Identity and the Survival of Native America (Berkeley, 2003).Google Scholar On race and tribal enrollment in Indian Territory: Sturm, Circe, Blood Politics: Race, Culture, and Identity in the Cherokee Nation of Oklahoma (Berkeley, 2002)Google Scholar; Saunt, Claudio, Black, White, and Indian: Race and the Unmaking of an American Family (New York, 2005)CrossRefGoogle Scholar; and Miles, Tiya, Ties that Bind: The Story of an Afro-Cherokee Family in Slavery and Freedom (Berkeley, 2005).Google Scholar On these processes among the Choctaws, Lambert, Valerie, Choctaw Nation: A Story of American Indian Resurgence (Lincoln, NE, 2007)Google Scholar; and Kidwell, Clara Sue, The Choctaws in Oklahoma: From Tribe to Nation, 1855–1970 (Norman, OK, 2007).Google Scholar The most detailed discussion of the Dawes Commission's role is Carter, Kent, The Dawes Commission and the Allotment of the Five Civilized Tribes, 1893–1914 (Orem, UT, 1999)Google Scholar, esp. ch. 6, “Choctaws, Chickasaws, and Lawyers,” 69–103.

6 Annette Jaimes, M., “Federal Indian Policy: A Usurpation of Indigenous Sovereignty in North America” in The State of Native America: Genocide, Colonization, and Resistance, ed. Annette Jaimes, M. (Boston, 1992), 123Google Scholar; Sturm, , Blood Politics, 7881Google Scholar; Garroutte, , Real Indians, 5758.Google Scholar

7 In a footnote, Circe Sturm comments that “the calculation of Indian blood quantum during the Dawes enrollment process was a purely subjective process based in part on earlier tribal rolls and on oral testimony from enrollees and their supporting witnesses.” Sturm, “Blood Politics, Racial Classification, and Cherokee National Identity: The Trials and Tribulations of the Cherokee Freedmen” in Brooks, , Confounding the Color Line, 223–57Google Scholar, quotation 255n29.

8 In his comparative study of slavery in America and Brazil, Carl Degler explains the fierce defense of sharply defined racial categories by suggesting that a “mulatto escape hatch” might allow persons of mixed ancestry to claim some of the privileges reserved for whites. I suspect a similar principle was operating here. See Degler, , Neither Black nor White: Slavery and Race Relations in Brazil and the United States, (New York, 1971).Google Scholar Thanks to Theda Perdue for this reference. Laura Lovett notes a similar issue in her discussion of Virginia's Racial Integrity Law, see, Laura Lovett, “African and Cherokee by Choice: Race and Resistance under Legalized Segregation” in Brooks, , Confounding the Color Line, 207–08.Google Scholar For the importance of a clear, careful definition of whiteness, see Roediger, David R., The Wages of Whiteness: Race and the Making of the American Working Class (London, 1991).Google Scholar

9 While allotment policy officially dissolved the Choctaw Nation as a juridical entity, some officials of the Choctaw government remained to oversee the Choctaws' collectively held resources that had not been dispersed, see Lambert, , Choctaw Nation, 4850.Google Scholar

10 For the Dawes Act, see Hoxie, Frederick E., A Final Promise: The Campaign to Assimilate the Indians, 1880–1920 (Lincoln, NE, 1984).Google Scholar Numerous persons outside the Choctaw Nation filed petitions with the Dawes Commission claiming to have Choctaw blood. This drained scarce resources until 1900, when Congress confined applications to enrolled members of the Choctaw Nation. Legislation did, however, allow an exception for those who had remained in Mississippi as descendants of Article 14 claimants. See Debo, Angie, Rise and Fall, chs. 1112.Google Scholar For Representative Williams's role in the decision to include the Mississippi Choctaws on the Oklahoma rolls, see Davis, Edward, “The Mississippi Choctaws,” Chronicles of Oklahoma 10 (June 1932): 257–66.Google Scholar

11 The Curtis Act expressly explained that not all qualified Choctaws needed to reside in Indian Territory. If they could meet the criteria for allotments, Choctaws in Mississippi had six months to take up residence in Indian Territory or lose their rights to the land. Studies of attempts to enroll the Mississippi Choctaws with the Choctaw Nation following the Dawes Act include: Ronald N. Satz, “From the Removal Treaty Onward;” Clara Sue Kidwell, “The Choctaw Struggle for Land and Identity in Mississippi, 1830–1918;” and Roberts, Charles, “The Second Removal” in After Removal: The Choctaw in Mississippi, ed. Wells, Samuel J. and Tubby, Roseanna (Jackson, MS, 1986), 3132, 64–93, and 94–111.Google ScholarCoker, William Sidney, “Pat Harrison's Efforts to Reopen the Choctaw Citizenship Rolls,” Southern Quarterly 3 (Oct. 1965): 3661Google Scholar; Wade, John Williams, “The Removal of the Mississippi Choctaws,” Publications of the Mississippi Historical Society 8 (1904): 397–42Google Scholar; Kidwell, Clara Sue, Choctaws and Missionaries in Mississippi, 1819–1919 (Norman, OK, 1995), ch. 10.Google Scholar

12 Kidwell, , Choctaws of Oklahoma, 163Google Scholar; Debo, , Rise and Fall, 272.Google Scholar

13 For a succinct summary and analysis of national trends in racial thinking, see Edwards, Rebecca, New Spirits: Americans in the Gilded Age, 1865–1905 (New York, 2006), 213–24Google Scholar, 239–42; see also Stern, Alexandra Minna, Eugenic Nation: Faults and Frontiers of Better Breeding in Modern America (Berkeley, 2005)Google Scholar; and Williamson, Joel, The Crucible of Race: Black-White Relations in the American South Since Emancipation (New York, 1984).Google Scholar On racial thinking in anthropology, Stocking, George W., Race, Culture, and Evolution: Essays in the History of Anthropology (1968; New York, 1982).Google Scholar

14 “Choctaw and Chickasaw Indians.” For an analysis of this process for the Cherokees, see Sturm, , “Blood Politics,” 225–29Google Scholar; Garroutte, , Real Indians, 34.Google Scholar

15 “The Fifth Annual Report of the Dawes Commission for 1898” in Annual Reports of the Commission to the Five Civilized Tribes: 1894–1905 (Washington, 1906), 7, repr. micro 38707, National Archives, Southwest Region, Ft. Worth, Texas (hereafter NA-SW); Carter, , Dawes Commission, 71.Google ScholarKidwell, , Oklahoma Choctaws, 81Google Scholar, notes that Choctaw freedmen often chose self-segregation. See Lambert, , Choctaw Nation, 181–97Google Scholar, for contemporary black Choctaw life.

16 On Mississippi Choctaws' closed communities, see fn. 11 above.

17 Archibald McKennon, “Mississippi Choctaws, Report of the Problems of Identifying Them,” Oklahoma Historical Society, DC (OHS-DC), NA-SW microfilm, vol. 24, roll 11, 317–18 (hereafter McKennon, “Mississippi Choctaws”). The OHS-DC designation refers to microfilms of materials found in Washington, D.C. that the Oklahoma Historical Society had made. The National Archives regional branch at Ft. Worth then purchased copies of these films.

18 “The Sixth Annual Report of the Dawes Commission for 1899” in Annual Reports of the Commission to the Five Civilized Tribes: 1894–1905, 77–80; Ruling of the Supreme Court in Winton v. Amos, 255 U.S. 373 (1921), found in Case Findings on the McKennon Roll, Despite the ruling of the Dawes Commission, blood was not a determinant in either the decision to emigrate or to remain in Mississippi. Choctaws of all degrees of Indian ancestry followed both courses of action. “The Role of Mixed Bloods in Mississippi Choctaw History” in Wells, and Tubby, , ed., After Removal, 5052.Google Scholar The Mississippi Choctaws embraced the full-blood designation in their campaign for inclusion on the Choctaw Nation rolls. They did so both as a political strategy that tailored their campaign to political realities and as a way to proclaim an identity as Indian—not colored—in Jim Crow Mississippi. This racial identity was a departure from earlier political activism that stressed treaty rights and reflected the realities of trying to maintain a third racial identity in the biracial South. Osburn, Katherine M. B., “The ‘Identified Full Bloods’ in Mississippi: Race and Choctaw Identity, 1898–1918,” Ethnohistory 56 (Summer 2009): 423–47.CrossRefGoogle Scholar

19 McKennon, , “Mississippi Choctaws,” 320Google Scholar; “Sixth Annual Report of the Dawes Commission for 1899,” 17.

20 McKennon, , “Mississippi Choctaws,” 305Google Scholar; See also the testimony of William E. Richardson, attorney for the Mississippi Choctaws, in House Committee on Indian Affairs, Hearings on Enrollment in the Five Civilized Tribes. 63rd Cong., 2nd sess. (Apr.–Aug. 1913), 52Google Scholar, available in microfiche group 1A; SUDOC: Y4.In2/1:F58/3.

21 White men who married Choctaw women were required to pay a $25 fee (later increased to $100) for a marriage license, which was granted only if the man could produce a certificate signed by ten respectable Choctaw citizens who had known him for at least a year and could testify to his upstanding character. The man then swore allegiance to the Choctaw Nation, and he forfeited any claims to Choctaw resources if he abandoned his family. White women did not have the same process for obtaining a marriage license, but they were also required to give up property granted by the nation if they deserted their families. Debo, , Rise and Fall, 179–83.Google Scholar

22 “Sixth Annual Report of the Commission to the Five Civilized Tribes for 1899,” Appendix 11: Decision of U.S. Courts in Indian Territory in Citizenship Cases, 99.

23 Kidwell, , Choctaws in Oklahoma, 8081Google Scholar; Debo, , Rise and Fall, 101–07.Google Scholar

24 For an analysis of how the Choctaw Nation dealt with this issue, see Kidwell, , Choctaws in Oklahoma, ch. 12Google Scholar; Debo, , Rise and Fall, 275–76.Google Scholar

25 For an overview of the hearings in both locations, see Carter, , Dawes Commission, ch. 6.Google Scholar For the results of their work, see “Final Roll of Citizens and Freedmen,” in Subject File, Choctaws, the Mississippi Department of Archives and Records, Jackson, Mississippi. The end result of the Mississippi hearings came to be called the McKennon roll.

26 “Choctaw and Chickasaw Indians,” 11–20, quotation 19. For a cogent analysis of the historical complexity of the “one drop rule,” see Elliott, Michael A., “Telling the Difference: Nineteenth-Century Legal Narratives of Racial Taxonomy,” Law & Social Inquiry 24 (July 1999): 611–36.CrossRefGoogle Scholar

27 “Choctaw and Chickasaw Indians,” 40.

28 “Journal of Testimony before the Dawes Commission in Carthage, Philadelphia, and De-catur,” Entry 105–006, NA-SW (hereafter “Journal of Testimony”). Half-white applicants are found on 7, 10–12, 103–04, 143–44, while half-black claimants are recorded on 23–24, 37–35, 70, 79, 130.

29 “Journal of Testimony,” 23.

30 Ibid., 43, 112–15.

31 Claimants rejected by the Dawes Commission frequently appealed to the U.S. Court for the Central District of Indian Country, which often overturned the commission's decisions. Lawyers for the Choctaw Nation, however, frequently appealed these judgments to the Choc-taw-Chickasaw Citizenship Court in McAlester, Oklahoma. For the Choctaw Nation's battle against court claimants, see Carter, , Dawes Commission, ch. 6Google Scholar; and Debo, , Rise and Fall, 269–72.Google Scholar The records of these proceedings take up fourteen linear feet in the Federal Records Center in Ft. Worth, Texas. I randomly selected six boxes for perusal. The majority of the documents I read contained ample testimony of social capital in determining the race of applicants. See, Entry 101, Case Files of Choctaw-Chickasaw Citizenship Commission, 1902–04, NA-SW. See also the papers of Mississippi congressman Ross Collins, which contain the records of the Arnold family before the Citizenship Court, boxes 2, 3, and 4, Ross Collins Papers, Manuscript Division, Library of Congress.

32 Halbert's publications ranged across a variety of ethnographic and folklore matters: “Courtship and Marriage Among the Choctaws,” American Naturalist 16 (1882): 222–24; three articles in the American Antiquarian and Oriental Journal: “Okla Hannali, or the Six Towns District of the Choctaws,” 15 (1893): 146–49, “A Choctaw Migration Legend,” 16 (1894): 215–16, and “The Choctaw Robin Goodfellow,” 17 (1895): 157; and five in the Publications of the Mississippi Historical Society: “Nanih Waiya, the Sacred Mound of the Choctaws,” 2 (1899): 223–34, “Funeral Customs of the Mississippi Choctaws,” 3 (1900): 353–66, “The Choctaw Creation Legend,” 4 (1900): 267–70, “The Story of the Treaty of Dancing Rabbit Creek,” 6 (1902): 373–402, and “The Last Indian Council on Noxubee River,” 4 (1902): 271–80.

33 McKennon, , “Mississippi Choctaws,” 330.Google Scholar

34 “Journal of Testimony,” 143–44. The Boon family appears on the McKennon and the Final Dawes Rolls. See, for the Dawes Rolls and for the McKennon Roll. Both accessed Sept. 14, 2008.

35 “Choctaw and Chickasaw Indians,” 54–57.

36 “Journal of Testimony,” 79. See fn. 34 for links to documents establishing Fortune's enrollment.

37 McKennon, , “Mississippi Choctaws,” 311Google Scholar, 325–30.

38 “Journal of Testimony,” 37–38. See fn. 34 for links to documents regarding Wiley's enrollment.

39 “Journal of Testimony,” 50, 79.

40 Ibid., 13, 130.

41 For a summary of segregation legislation, see Jim Crow Laws by State, Twelve states regulated Indian marriages; see Roundtree, Helen, “The Indians of Virginia: A Third Race in a Biracial State” in Southeastern Indians Since the Removal Era, ed. Williams, Walter L. (Athens, GA, 1979), 4143Google Scholar; and Lovett, , “African and Cherokee by Choice,” 207.Google Scholar For overviews of miscegenation law, see Pascoe, Peggy, “Miscegenation Law, Court Cases, and Ideologies of ‘Race’ in Twentieth-Century America,” Journal of American History 83 (June 1996): 4469CrossRefGoogle Scholar; Novkov, Julie, “Racial Constructions: The Legal Regulation of Miscegenation in Alabama, 1890–1934,” Law and History Review 20 (Summer 2002): 225–76CrossRefGoogle Scholar; Moran, Rachel F., “Love with a Proper Stranger: What Anti-Miscegenation Laws Can Tell Us about the Meaning of Race, Sex, and Marriage,” Hofstra Law Review 32 (Summer 2004): 1663–78.Google Scholar

42 “Journal of Testimony,” 35–37, 43, 158.

43 Ibid., 74–75.

44 For laws of the Choctaw Nation regarding marriage and divorce, “Choctaw and Chicka-saw Indians,” 66–71.

45 Ibid., 1.

46 Ibid., 11, quotation 20.

47 Ibid., 11.

48 Ibid., 7–10, 95.

49 Ibid., 2.

50 Ibid., 3, 8. See also Carter, , Dawes Commission, 9294.Google Scholar

51 “Choctaw and Chickasaw Indians,” 17.

52 The Choctaw Nation had originally attempted to prevent freedmen from holding public Office, but the Commissioner of Indian Affairs had objected. Debo, , Rise and Fall, 105.Google Scholar

53 “Choctaw and Chickasaw Indians,” 17.

54 Ibid., 21.

55 Ibid., 42–43.

56 Ibid., 22–27.

57 Ibid., 23.

58 Ibid., 73.

59 Ibid., 27–30, quotation 28.

60 Kidwell, Choctaws in Oklahoma, and Lambert, Choctaw Nation, explore this theme more fully.

61 “Choctaw and Chickasaw Indians,” 50–69. The government of the postremoval Choctaw Nation had shifted the Chocktaws' traditional customs of matrilineal property inheritance by passing laws to transfer property through individuals and fathers. Lambert, , Choctaw Nation, 4546.Google Scholar Nonetheless, the court transcripts indicate that Choctaw lawmakers protected the rights of Indian mothers to assure their children's place as citizens.

62 Ibid., 51. Cornish was referring to the forty acres granted the freedmen in 1883.

63 “Choctaw and Chickasaw Indians,” 32. For more on the freedmen, Kidwell, , Choctaws in Oklahoma, 8081.Google Scholar

64 “Choctaw and Chickasaw Indians,” 72, 73, 75.

65 Beyond their rhetorical significance, these statements suggest that officials of the Choctaw Nation may have held a Southern identity as well as an Indian one. Saunt, , Black, White, and Indian, 111–12Google Scholar, made this case for the Creeks. For another version of such an argument: David Chang, “Becoming West: Race, Region, and the Muskogee (Creek) People in Oklahoma,” paper presented at the Annual Meeting of the Southern Historical Association, Richmond, Virginia, 2008; and Chang, , “The Color of the Land: Race, Nation, and the Politics of Land Tenure in Oklahoma” (PhD diss., University of Wisconsin, Madison, 2002).Google Scholar

66 For Leupp's decisions, “Choctaw and Chickasaw Indians,” 118–22, quotation 121. For more on the outcome of the case, see Debo, , Rise and Fall, 275–76Google Scholar, and Carter, , Dawes Commission, 8999.Google Scholar

67 Pascoe, , “Miscegenation Law,” 4469.Google Scholar

68 For further analysis of this strategy, see Lovett, “African and Cherokee by Choice.” Given the violent racial situation in Oklahoma, denying one's African American heritage was a reasonable survival strategy.

69 Report of P.J. Hurley to the Honorable Cato Sells for 1915, 4, folder 7, box 12, P. J. Hurley Collection, Manuscripts Division, William Bennett Bizzell Memorial Library, University of Oklahoma (hereafter Hurley Collection).

70 Jessie Wilson, Assistant Secretary of the Interior, to Honorable Robert Owen, May 13, 1908, in folder 5, box 2, Collins Papers.

71 Testimony of J. E. Arnold before the Choctaw-Chickasaw Citizenship Court, Nov. 28, 1903, 35–44, folder 7, box 2 Collins Papers.

72 For the Lumbees, see Blu, Karen I., The Lumbee Problem: The Making of an American Indian People (Lincoln, NE, 1980)Google Scholar, and Oakley, Christopher ArrisKeeping the Circle: American Indian Identity in Eastern North Carolina, 1885–2004 (Lincoln, NE, 2005).Google Scholar For Virginia Indians, see Rountree, Helen C., Pocahontas's People: The Powhatan Indians of Virginia through Four Centuries (Norman, OK, 1990).Google Scholar

73 Quotation in Lovett, , “African and Cherokee by Choice,” 207–08.Google Scholar Also, Rountree, , Pocahon-tas's People, ch. 9Google Scholar, and Maillard, Kevin Noble, “The Pocahontas Exception: The Exemption of American Indian Ancestry from Racial Purity Law,” Michigan Journal of Race and Law 12 (Spring 2007): 351–86.Google Scholar Pleck's campaign had mixed results, with some registrars changing Indian's birth certificates and others not changing them.

74 Report of P. J. Hurley to Cato Sells, Commissioner of Indian Affairs, for 1915, 4, folder 7, box 12, Hurley Collection.