produced, sworn and examined as a witness for and on behalf of the interveners Lucy Curns, et al., testified as follows;
DIRECT EXAMINATION BY MR. PINSON:
Q. Your name is William O. Beall? A. Yes, sir.
Q. What is your profession or vocation, Mr. Beall? A. I am a lawyer.
Q. Connected at this time? A. I am in the employ of the Sinclair-Prairie oil company located at Tulsa, Oklahoma.
Q. How long have you been in that position, Mr. Beall? A. Be twenty years the first of this coming July.
Q. Prior to that what was your business? A. I was engaged in the general practice of law at Muskogee from 1910 until July 1, 1918.
Q. And prior to your entering the practice of law what was your business? A. from January 1, 1907, until about July 1, 1909 or 1910, I have forgotten which year it was, I was business manager for the Muskogee Phoenix, a newspaper published at Muskogee.
Q. And prior to that? A. I was in the employ of the commission to the Five Civilized Tribes from April 10, 1899, until the Commission was abolished in July, 1908, and after that I was Assistant Commissioner to the Five Civilized Tribes until December 31, 1906
Q. Now during the period when you were connected with the Commission to the Five Civilized Tribes - sometimes called the Dawes commission, is it not? A. That is correct.
Q. During that period then, if I am not mistaken in ay dates as to the acts, certain acts were passed and certain procedure instituted by Congress with respect to enrollment and allotment of Members of the Five Civilized Tribes? A. That is correct.
Q. Are you familiar with all those various acts of congress A. Yes, sir.
Q. You are, of course, familiar with the procedure by I which the so-called Dawes Commission proceeded to the enrollment and subsequent allotment of the tribes, are you not? A. Yes, sir.
Q. Were you in those years, and during those years were you engaged in that type of work with the Commission? A. To the best of my recollection the latter part of the year 1899 I was appointed by the commission, or designated by the Commission, as Chief Enrollment Clerk for the Choctaw and Chickasaws. In 1901, while still retaining that designation, I was assigned temporarily to the enrollment of the Creeks,
THE COURT: How long were you with that enrollment? A. I would say intermittently, sometimes with the Choctaws and Chickasaws and sometimes with the creaks.
THE COURT: For how long? A. About three years,
Q. You are familiar then with the procedure adopted by the commission for the enrollment of the Choctaws and Creeks, is that true? A. The members of the Five Tribes were enrolled by the Commission to the Five Civilised Tribes under the various provisions of the Act of Congress of June 28, 1898, known at the original Curtis Act, and under instructions issued by the Secretary of the Interior.
Q. Well that procedure which was adopted in the various tribes was uniform, it was the same? A. Yes, sir.
Q. Hastily reaching the point I am getting at, in preparing census cards - did you call them census cards in those days?
A. I think there was a distinction in the Creek Nation. Prior to the approval of the Curtis Act, June 28, 1898, the Commission proceeded to take what they called a census of the Creek Tribe in the fall of 1897. At that time the Commission did not have in its possession the Creek tribal rolls, and those cards that were used in the preparation of this census were referred to as census or family cards. After the approval of the Curtis Act, June 28, 1898, and under the provisions of which the Commission procured the tribal rolls, there was another card used which was also referred to as the census card, and on that card, in addition to the family data, there was also indicated the tribal enrollment. So there were two sets of census cards.
Q. In the Creek Nation? A. In the Creek Nation.
Q. With the taking of the family card, so-called, you had nothing to do? A. No, sir, I was not with the Commission when the census was made in 1897.
Q. So that the family cards which we would refer to in common parlance would be the card taken in the census of 1897? A. Yes, sir.
Q. While the census card would be the card taken pursuant to the procedure with which you are familiar? A. Yes, sir.
Q. The census card, as we now use the term, is the card prepared by the Dawes Commission after the Curtis Act? A. And upon which the final roll number is indicated.
Q. And from those census cards certain information was copied upon a roll and transmitted to the secretary of the Interior in quadruplicate for his approval, is that correct? A. The Commission from time to time took the data on the census card, which was by transcribed testimony or in some instances merely the data that had been furnished by the applicant, then the name of the person on the census card with a roll number, giving the degree of blood, the age and the number of the census card was placed on what we called schedules of those finally entitled to enrollment and were transmitted to the Secretary of the Interior, through the commissioner of Indian Affairs, and were in nearly every Instance approved by the Secretary of the Interior.
Q. What became of those schedules? A. They were made in quintuplet, one copy was deposited in the office of the Secretary of the Interior, one in the office of the Commissioner of Indian Affairs, three copies were returned to the Commission. One was kept in the permanent files and the other additional copies were used as working schedules in the Land office.
Q. In obtaining the information which appears upon the census cards state to the court please just where that information was obtained in case an applicant appeared in person, that is to say not the tribal enrollment because you obtained that from the roll itself? A. Yes, sir.
Q. But as to age, sex, children, mother, degree of blood, how did you obtain that information where an applicant appeared in person? A. The Secretary of the Interior in the instructions in 1898 in making the roll and referring to the provisions of the Act of 1890 requiring that the rolls be made descriptive of the persons, directed the Commission to take additional data or evidence as to enable preparation of the final rolls so as to identify the various parties who were enrolled. I think I am correct in this, I know I am as to the 1890 and 1895 rolls of the Creeks, they contained no other information than the names of the members of the various creek towns arranged in groups.
THE COURT: Creek towns. A. Creek towns, arranged in groups on the town rolls without any description except the number opposite his name. In other words no sex, degree of blood, name of parents or other identifying data.
THE COURT: Were the negroes generally in certain towns? A. There were forty-seven Creek towns in the Creek Nation represented in the Creek Council, of which forty-four were known as Indian towns. There were three so-called negro towns made up of the descendants of slaves.
THE COURT: What were the names of the three towns? A. Arkansas Colored, Canadian Colored, I think the other was North Fork Colored,
Q. Wasn't there an upper and lower Arkansas? A. Not in the Council. There may have been some geographical district but there were three colored towns entirely represented in the Council.
Q. In your handling of the Creek tribal rolls did you obtain information as to what these particular groups meant? A. From the evidence, that is the testimony of Town Kings and tribal authorities, they advised the Commission that the grouping represented so-called family groups, although they did not particularly distinguish as to whether the group was composed of one family. Other persons might be included as being distant relatives of the head of the group.
Q. But generally speaking the group was what was known as a family group? A. Yes, sir.
Q. And your presumption was they were related in some way? A. Yes, sir.
THE COURT: They were all supposed to be related but some sight be collateral? A. That is true. It would be a family group but not limited to father, mother and children,
Q. I think in some instances there might be a person of a different family but who resided and in a sense became a member?
THE COURT: When they were not kin to them? A. I have no personal recollection of any case of that character.
Q. Every time a person appeared individually, personally, and made application for allotment, as I understand some did, how did you obtain the data? A. I assume your question is directed to enrollment instead of allotment.
Q. Enrollment yes, sir. A. When the applicant appeared before the Commission to be enrolled as a member of the Creek Tribe, that is finally enrolled subject to the approval of the Secretary of the Interior, the first inquiry was, of what Creek town are you a member? Upon ascertaining the name of the town that he claimed to be a member the tribal rolls were checked to see if his name appeared first upon the 1896 roll. That was the basic roll that the Commission adopted.
Q. The last roll? A. The last roll. If his name could not be found on that roll then an investigation was made of the 1890 roll. If his name was found on either of those rolls questions were propounded as to whether he had maintained his residence in the Creek Nation for the past three or four years; if he was married the name of his wife; if he had any children where they lived, and then if their names appeared upon the tribal roll that was prima facie evidence accepted by the Commission of their right to final enrollment. Then, carrying out the instructions of the Secretary of the Interior, the additional data was procured from the head of the family as to the family relationship, the age of the members of his family and their degree of blood. In other words the degree of blood was not determined from any other source than the reply of the applicant to the question as to what was his degree of blood. It was indicated on the face of the census card opposite the names of each of the persons so listed for enrollment the number appearing opposite their name upon the Creek tribal rolls of the town in which they claimed membership; the name of the father and mother of the various persons listed upon the card; whether they were living or dead; and the Creek town that the father and mother belonged to. There was also placed on the card information secured from the applicant as to his residence and present post office.
Q. Now, if I understand you, then so far as any of this data was concerned where a person made personal application the Commission accepted his statement as to the degree of blood and other things? A. If the applicant were personally present and gave that information.
Q. Was any investigation ever made other than in that manner? A. Only in a few instances where some question was raised by either the Creek tribal authorities or some citizen. All the time the Commission was enrolling the Creeks there was a Creek citizenship committee appointed by the Creek Council to appear and it had the right to question the applicants, in some instances the investigation made by the Creek citizenship committee caused the Dawes Commission to change some of their data.
Q. It caused them to eliminate some? A. No, that involved the taking of evidence and finding of the Commission to the Secretary of the Interior,
Q. Where would the citizenship Committee be heard? You say that was not a contest when they simply came in and complained. A. If the information changed the identification. If it was a direct attack of the right of the applicant to be enrolled that constituted a contest, which was set down for hearing, and the Creek Nation in addition to the creek Citizenship Commission also in its employ a Creek tribal attorney to prosecute those cases.
Q. This contest proposition was authorized by Federal law? A. Yes, sir.
Q. And the procedure was prescribed for those contests?
THE COURT: That was made under rules and regulations? A. Rules and regulations of the Secretary.
Q. But in the event that the Citizenship Committee, or any other person, came to the Dawes commission and pointed out some erroneous description on the census cards or otherwise what you call your field parties went out end got this information? A. There were many instances where these field parties, so called, procured the information by reason of the fact that the identifying information was not on the census card.
Q. But assuming that an individual did appear and was conditionally enrolled, subject to the approval of the Secretary, and gave certain information and it came to your notice that information was incorrect you corrected it at that time? A. Well, it depended a great deal as to whether we had evidence to justify the changes.
THE COURT : You wouldn't change it without investigation? A. That is correct, in view of the positive evidence of the applicant.
Q. Now in some cases there were what are called arbitrary enrollments, were there not? A. No, sir.
THE COURT : They were arbitrary allotments. A. No arbitrary enrollment.
THE COURT : Arbitrary allotments but not arbitrary enrollment. A. That is the distinction.
Q. I don't get the right word. Did all persons in the Creek Nation appear personally for their enrollment? A. No, sir.
Q. In what manner did you proceed to obtain information with which to enroll those who did not personally apply? A. On the Creek tribal roll of 1896, including the forty-seven different towns, there were approximately 19,000 citizens. I am not sure whether that included the freedmen or not. Of that number in the early part of 1901 all of them had been enrolled upon personal application with the possible exception -- I am not positive about the figures -- about 1800 or 2000.
THE COURT : Now of those on the roll of 1896 there were 19000 enrolled on personal application except how many? A. Between 1800 and 2000. Most of them were on the so-called Indian town rolls. I think I can safely state all the members of the negro towns had been enrolled.
THE COURT : Now what did you do to get these others in?
MR. PINSON: That is what I am coming to, and that is what I referred to as arbitrary. I used the wrong word.
THE COURT : You sent field parties out, didn't you? A. Yes, sir. May I explain that, Judge, and get it clear? The Secretary of the Interior and both houses were anxious to close the rolls and fix some date upon which the rolls would be final. There had been no time fixed when a Creek citizen should be living, although in the land office in 1899 the parties that had been listed for enrollment were permitted to select tentative allotments. Then in January, 1901, there was before Congress what is generally referred to as the original Creek agreement. That provided that no person should be enrolled after the approval of that agreement which had been ratified by Congress and was pending for ratification by the Creek Council. Representatives of the Council called on the Dawes Commission and urged that some provision must be made for these 1000 or 2000 persons whose names were on the tribal roll and who had not applied to the Commission to be enrolled, the contention being that they were really fullblood members of the Creek Tribe who had failed to take advantage and personally apply. And the Council said "We will not agree to the ratification unless provision is made for them." So the Commission, in the early part of March, 1901, gave public notice that they would hold a session at Okmulgee at the time the Council was in session, and notified all persons who had not theretofore been enrolled to appear before the Commission at Okmulgee. In addition to that the Commission employed teams and buckboards, and even men on horseback, and made an effort to round up these Indians having their names upon the tribal rolls, and these field parties were given the names of certain Indians, and in that manner quite a number were brought to Okmulgee and there made application. Later, in May, the Commission sent out additional parties, and also had another session at Okmulgee and at that later session the Creek Council had under contemplation the ratification of the original Creek agreement. But at a joint meeting of the Creek Council and the Dawes Commission the Council representatives again insisted that these persons who were on the tribal rolls must be taken care of, for the reason the Council construed the provisions of the original Creek agreement that no person shall be enrolled after the approval of this act as excluding them. It was, therefore, the plan of the Commission to make some arrangement for listing these persons on the tribal rolls. The forty-four Indian towns were divided up among the clerical force of the Commission and while the Council was in session the Town Kings and Warriors from each of the forty-four Creek towns were asked to check their town rolls and see if they could furnish any information as to these names which appeared on the rolls which had not been accounted for. In this manner from information elicited from the Town Kings and Warriors the Commission did enroll some of them on the application of the Town King. A number of them still remained unaccounted for. So on May 21st to May 25th the entire force of the Com mission was engaged in listing upon these census cards the names of these persons who had not theretofore been accounted for, the only data appearing on the cards being the data that was on the tribal rolls. The assurance by the Commission that they would protect those people induced the Council to ratify the agreement.
Q. In cases like that -- I used the unfortunate word "arbitrary", what I meant to say, enrolled without actual application except by the appearance on the rolls of the names of the individuals. A. Yes, sir.
THE COURT: That was on the application of the King or Warrior.
MR. PINSON: No, sir. That was the act of the Commission.
A. That is those that the Town King or Warrior did not know.
THE COURT : How did you get them on? A. They were listed on the cards simply from the rolls.
THE COURT : How many of those? A. I imagine about 600.
THE COURT : Can you look at a card and tell those cards now? A. I could a number of them. After the ratification of the original Creek Agreement those census cards of the persons who were merely listed, without an application of even of the Town King, copies were made and then field parties were organized by the Commission and they went into these so-called Snake settlements and procured from neighbors, relatives and other persons the information that enabled the commission to supply this necessary data.
Q. What you had listed at Okmulgee? A. Yes, sir.
Q. The information which you obtained from the tribal roll was the name? A. Yes, sir.
Q. Following that the card would read some number? A. The cards would have numerical sequence because they were stamped with a numbering machine, just orderly arranged.
Q. And then the name of the persons and the tribal roll that is "1895 Tuckabatchee"? A. Yes, sir.
Q. And as I understand subsequently field parties went out and obtained this information from anybody they could gather information from? A. In order to comply --
THE COURT: The presumption is they got the most reliable information they could. They were so instructed, weren't they? A. Yes, sir.
MR. PINSON: There is no question about that.
THE COURT: When they asked anybody they would be instructed to get the best information? A. I limit my answer, Judge, to this, that the Commission availed itself of all competent evidence in reference to the identity of these people. Most of it was secured from the tribal officers.
Q. For instance, Mr. Beall, you say you got certain information from relatives? A. That is correct.
Q. As I understand you would go into a community, you would call come man and say "Are you any kin to John Wilson of Kilage district"? A. Yes.
Q. "Any kin? Yes, I am a cousin, Who was his father and mother"?
THE COURT: I don't understand that. They would first go to the tribal officers and find out who the father and mother were, and if they were dead then get the brothers and sisters? A. We elicited all the data we could first from the immediate members of the family; next from the Town Kings; third from the Warriors representing the town; and then from the nearest relatives we could locate, and if that was not available --
THE COURT : They wouldn't just go out and ask "Are you kin to him?" A. No, sir.
THE COURT : They would find who the nearest relatives were. A. The basis was the name on the tribal roll. Then inquiry was directed to the person on the tribal roll. It was the endeavor to find that from the nearest relative of the family, and then the town king or warrior, and then the best information that was available.
Q. What fact was it the Dawes Commission was trying to obtain? What were they attempting to adjudicate? A. The first and paramount question after the approval of the original Creek Agreement of May 25, 1902, was whether they were living on April 1, 1899.
Q. That was prerequisite? A. That was in the agreement as ratified by the Creeks.
MR. PINSON: That is all, your honor.
THE COURT : I think we had better recess. We will recess now until two o'clock.
(Thereupon a recess was taken until two o'clock P.M. at which time court having reconvened the following proceedings were had:)
WILLIAM O. BEALL
having been recalled testified as follows:
DIRECT EXAMINATION BY MR. PINSON:
Q. You are the same William O. Beall who was on the stand prior to recess, are you not? A. Yes, sir.
Q. I hand you what has been identified as Curn's Exhibit #25 and ask you to state what that is please from your knowledge of the enrollment of Creek Indians? A. That is a certified photostatic copy of Creek freedman census card #473, showing the enrollment of -- your honor, I can't make out the name.
Q. I don't care about the name specially. Notice the second sheet attached, Mr. Beall, and advise the court if you know what is that second sheet. A. The second sheet is the identification of the father and mother of the person enrolled opposite No. 1 on the face of the card, tribal enrollment of the father and mother and of the ownership of the father and mother as being slaves, the mother's name being on the Dunn Roll.
Q. What I mean is that second sheet -- that is the Trump Barnett card. Is the second sheet a photostat of the back of the first sheet, or do they come in two sections that particular type of census card? A. The second sheet is the reverse of the original.
Q. So that the two documents are simply the obverse and reverse sides of a census card? A. That is correct.
Q. Can you tell from Exhibit #25 whether it is one of those cards taken as a family card in 1897, or whether it is one as to which personal application was made, or whether it is one where the Creek Chief, Town King or Warrior knew about the person, or whether it is one of those unaccounted for three or four days prior to the ratification of the original Creek Agreement? A. It is my best judgment that this census card was compiled at the time the person whose name appears thereon appear before the Dawes Commission and applied for enrollment as a Creek freedman during August, 1898.
THE COURT : That is what it says.
A. Yes, sir. I base that, your honor, largely upon the fact of the identifying data contained on the face of the card, including the tribal enrollment on the 1896 Canadian Colored Town roll, is apparently in the same handwriting.
THE COURT: It is marked enrolled 1898.
MR. PINSON: Yes, sir.
Q. Those dates, of course, might be subject to explanation might they not, Mr. Beall, I mean begun one date and completed at another? A. It would be my best judgment it was from personal application made in August, 1898.
Q. Do you have any doubt about it? A. There is a possibility this name was also on one of the 1897 family census cards.
Q. So far as that card is concerned your judgment is it was an 1898 card as the date seems to indicate? A. Yes, sir.
Q. And was it made from personal application, or by a town king, or one of the unaccounted for? A. As I stated it was made from personal application of the party whose name appears opposite No. 1. All the data seems to have been written at the same time.
Q. On both the front and back of the card. You brought with you, Mr. Beall, a document.
MR. PINSON: Your honor mentioned the fact it might be well to file a statement which he made.
Q. What is the document which you brought with you which bears your name on the first page? A. That is a brief I prepared and filed in the District Court of Creek County involving the Lete Colvin allotment.
THE COURT : He has testified and I don't see the necessity for that.
MR. PINSON: I was following your honor's suggestion.
THE COURT : That was with a view of expediting. Proceed.
CROSS EXAMINATION BY MR. GIBSON:
Q. Mr. Beall, referring to Exhibit #25, which you have just examined identified as Curn's Exhibit #25. I notice that the application appears to be for the enrollment of Trump Barnett. That is true? A. Is that that name?
Q. Yes, Trump Barnett. A. Yes, sir.
Q. In the notation made in the lower part of the first page there appears reference to the family and other identifying circumstances, does there not? A. Yes, sir.
Q. Can you tell from that who was the father of Trump Barnett? A. Under the caption "Name of Father" on the reverse of the card the father appears as Siah Barnett, dead, who was the a slave of Wm. Sullivan.
Q. And what was the date of that card? A. Sometime during the month of August, 1898.
Q. Can you tell who the mother was? A. The mother was Celia Barnett, dead, whose name was on the Dunn roll of Creek freedmen opposite No. 1746, and who was the slave of Nancy Barnett.
Q. And you find on the front page a reference to this No. 1746? A. There is a notation on the face of the card that No. 1, Trump Barnett, is on the 1895 roll of Canadian Colored Town opposite No. 1433; and also on the 1890 roll Canadian Colored Town page 62; and that Trump Barnett, No. 1 on the census card, is the son of No, 1746 on the Dunn Roll.
Q. That is the Celia Barnett whose name you have just called? A. Yes, sir, on the reverse of the card.
Q. In making up these census cards preparatory to recommendation to the Department of the Interior that the parties thereon be enrolled, what reference was made on the card to the enrollment? Have you detailed? A. I think not.
Q. I say you have detailed the identifying numbers of other rolls? A. Yes, sir.
Q. For instance the mother would be No. 1746 on the Dunn Rolls. A. Yes, sir.
Q. What was the Dunn Roll? A. The Dunn Roll was a roll prepared by J. W. Dunn, an officer of the United States Army which then had jurisdiction over Indian affairs, of the slaves of Creek Indians who were residing in or who had returned to the Creek Nation, I think the date is April 1, 1866.
Q. Was that in accordance with the provisions of the treaty of 1866? A. Yes, sir.
Q. And freedman rolls generally which you have testified about were composed of members who appeared on the Dunn Roll, and their descendants, and such others as had been admitted subsequently? A. I think the admissions was limited to the Indians by blood.
Q. If there were any so admitted they would appear, however, in that form? A. Yes, sir.
Q. Mr. Beall, in the use of the rolls which were furnished to the Commission under the Curtis Act of 1898, and which you say were used by them in soliciting and procuring information, did the Commission make notations upon these rolls showing by cross reference the census card number of the Indian under consideration? A. Yes, sir, appearing upon the tribal rolls, particularly the 1895 payment roll of the Creek Nation, whenever a citizen on the tribal roll was identified and placed upon a census card there was placed opposite his name on the tribal roll in blue pencil the number of the census card.
Q. That served as a cross reference; A. Yes, sir.
Q. Can you tell who prepared that card, Exhibit #25, that you have just examined? Can you tell whose writing that is? A. I would not be positive, but I am of the opinion it was written by John Lieber.
Q. And he is still living in Muskogee, or was until recently? A. I don't know whether he is living or not.
Q. Died recently these gentlemen say. Were you acquainted with Mr. Edward Merrick? A. Yes, sir.
Q. And Mr. Angell? A. W. H. Angell, yes, sir,
Q. Are they living or dead? A. They are both dead.
Q. State whether or not they had an active part in the preparation of these Creek rolls or information accompanying them. A. Both of them did.
Q. Now, Mr. Beall, you spoke this morning of the examination of the Creek rolls, particularly the 1890 and 1895 rolls, in order to determine the names of parties who were to be recommended or considered for recommendation for enrollment and you spoke of the fact that they appear in family groups. From your experience in investigating those rolls can you state how the order usually was as to the persons who appeared in a particular group. A. I have no definite information as to the policy that was employed by the Town Kings in preparing their town rolls, but the experience of the Commission in the use of those rolls clearly demonstrated it was the policy and practice of the Town King to include in one group the head of the family, being the father, followed by the mother and then by the children,
Q. Suppose, Mr. Beall, that there were cases which came to your attention in which the father was a member of one of the forty-seven Creek towns and the mother a member of another town, which one of the parents did the children ordinarily follow on the roll. A. It was the invariable rule that the children followed the mother.
Q. And in that event who would appear at the head of the group; A. The mother.
Q. And where would the father appear? A. He would probably appear as a single name in the town of which he was a member.
Q. In the event that it developed in the process of year investigation that certain members of the family of a Creek Indian were married at the time of the making of the 1890 or 1896 rolls and maintained establishments of their own, what was your experience as to how they generally appeared, in the same group or separate groups? A. Where the children mere married and personally maintained establishments they appeared in separate groups, in many cases where they were married and living with the heed of the family they would appear in the same group.
Q. So if it developed a son was of age and was living apart from his family how would he appear? A. Ordinarily I would say he would be listed by himself in the town of which he was a member.
Q. Mr. Beall, when an Indian so appeared alone on the town rolls and information was obtained by the commission as to where his family was enrolled, and this information had been so procured as to satisfy the Commission of the correctness, how did the Commission enroll this individual, separately or with his family group, how did they place him on the census card? A. He was generally listed individually on a census card.
Q. Suppose a son were married and living apart, even if he did appear in the same group with his father and mother on the Creek roll, what was the custom of the Commission in enrolling him and his family on the census card? A. I think the general policy was, where a member of a family belonged to one town and married a woman of another town, that they would be listed together on a census card showing their tribal membership in the separate towns.
Q. What I refer to if the son of A and B, two Creek Indians members of Coweta Town, was married and had a family of his own, when the Commission came to make up a census card would he be put with his family? A. He would be put on a separate census card.
Q. And that was the uniform custom of the Commission, was it? A. Yes, sir.
CROSS EXAMINATION BY MR. ANGLIN:
Q. Suppose he was living not with his parents, was of age living with a different family or by himself, how would he be placed? A. Well, there were instances that came to the attention of the commission where Indians living apart from their families were placed upon the town rolls apart from their families, and there were some instances that I recollect of where the members of one family living with another family had been included in the latter family group.
CROSS EXAMINATION BY MR. GIBSON:
Q. Mr. Beall, was the Dunn Roll composed exclusively, did I understand you to say, of people of negro blood who had been slaves and were lawfully residing in the Creek Nation at the time? A. My recollection and best judgment is that the roll of Creek freedmen prepared by Col. J. W. Dunn in 1866 was, under the 1866 treaty between the united States and the Creek Tribe, limited to those ex-slaves of Creek Indians who were residents of, or who had returned to the Creek Nation, on or before April 1, 1836. The latter provision was provided because of refugee slaves.
Q. The treaty of 1866 was the source of the freedom for the negroes? A. Yes, sir.
Q. And not the general proclamation afterwards in other parts of the country? A. No, sir.
Q. Was there any such occasion as a man who appeared as an Indian by blood on the rolls before 1866 being transferred and appearing on the Dunn Roll of slaves and their descendants in 1866? A. I never heard of any such instance.
CROSS EXAMINATION BY MR. ANGLIN:
Q. That card given you with reference to the Dunn Roll, I hand you William Fisher's Exhibit #6. What would be your idea of the blood of Siah Barnett there? A. Hasn't any.
Q. What degree of blood?
MR. PINSON: Your honor please, he has stated no qualifications which established degree of blood.
MR. ANGLIN: That is what you tried to establish.
THE COURT: I permit him to answer.
MR. PINSON: We except.
Q. That is the census card of Dave Barnett. A. Census card of David Barnett No. 4951, Patty Barnett, his wife No. 4952, Melviney Barnett his daughter No. 4953; Hettie Barnett, his daughter, Creek Roll No. 4954; Wesley Barnett, his son, Creek Roll No. 4955; and Amos Barnett, a son, Creek Roll No. 4956.
Q. Who does it show the father of David Barnett? A. Siah Barnett.
Q. And the mother? A. Mary Barnett.
Q. What does it show the degree of blood of the father of David Barnett?
MR. PINSON: The exhibit speaks for itself. We object, incompetent, irrelevant, immaterial.
THE COURT: Overruled.
MR. PINSON: Exception.
A. The census card under the column "Blood" after the names of the persons enrolled as above testified to shows "Full".
Q. Would that lead you to believe they were freedmen?
THE COURT: What does "Full" mean? A. I assume, your honor, that was the statement made by David Barnett on February 3, 1900, when he was questioned as to his degree of Indian blood.
Q. Does that show he is a freedman or Creek Indian?
MR. PINSON: Objected to as calling for a conclusion of the witness.
THE COURT: As you narrated heretofore what does that mean?
MR. PINSON: He has just said it merely what David Barnett told them that day.
THE COURT: Overruled.
MR. PINSON: Exception.
A. This is a certified photostatic copy of Creek Census Card No. 1540 of the citizens by blood of the Creek Nation. It shows that the parties whose names have been enrolled are identified from Tuckabatchee and Hutchuchuppa Towns of the Creek Nation, which were Creek Indian towns.
MR. ANGLIN: That is all.
CROSS EXAMINATION BY MR. PEARSON:
Q. Judge Beall, was there any members of the Creek Tribe, whether freedmen or by blood, ever failed to be enrolled? A. Yes, sir.
Q. Never got on the roll? A. Correct.
THE COURT: They passed an act years afterwards to correct some of it, didn't they? A. There were some specifically named by Congress.
THE COURT: They didn't open the rolls? A. Never opened the rolls, specifically named and congress provided they should have allotments and share in the distribution of the tribal property the same as those on the roll.
Q. If a party came to be enrolled unless he told you he had a wife and children or didn't bring them to be enrolled you didn't shew it? A. We relied on the tribal rolls, if it showed that we naturally took care of the wife and children.
THE COURT: When he told you who he was then you looked at the 1890 and 1896 rolls and Dunn Roll?
A. That was the initial step to look to the tribal roll. That was the basis of the right to enrollment.
Q. When he said he had a family and children you checked that up? A. I don't get your question.
Q. Say a came to you and wanted to be enrolled and says "I have three children and a wife". A. We checked him. If he was on the roll all right. If the wife and children were not on there we would say "Who is your wife?" If she was an Indian wife the possibility is the children would be members of some other town. If she was white she wouldn't be entitled to enrollment, but if the children were legitimate they would be entitled to enrollment as members of the Creek Tribe. It was dependent on the tribal rolls except children born since then.
THE COURT: You verified that. If he claimed he was born after then, then you followed that up by investigation? A. Not only investigation but required an application for enrollment of the new-born child to be executed by the mother and by the doctor or midwife, and in addition to that sometimes additional evidence was taken.
Q. Freedmen and children of freedmen could get on the rolls under the 1866 treaty, but if --
THE COURT: That was evidenced by the Dunn Roll? A. That was the basis.
THE COURT: You didn't go beyond the Dunn Roll? A. The Dunn Roll was one of the two rolls specifically confirmed by the Act of Congress.
THE COURT: And confined to that? A. Yes, sir, and directed that the Commission should enroll those on the Dunn Roll and their descendants.
Q. And people who were not freedmen or their ancestors were not entitled to get on the Dunn Roll? A. The Dunn Roll was made in 1866 and confirmed and ratified by Congress in the Curtis Act.
THE COURT: You didn't look beyond that? A. No, sir.
THE COURT: That was an adjudicated fact? A. That was an adjudicated roll.
CROSS EXAMINATION BY MR. HERROD:
Q. Take for instance Jackson Barnett, deceased, whose roll number is 4524 I think, had a sister thirty-five or forty years old; the sister was married and she was kept out of the jurisdiction of the commission where nobody would know anything about where she was, that is the Commission did not know and attention was not called to her, would she be enrolled?
MR. LYTLE: Just a moment, if the court please. We object to the hypothetical question.
THE COURT: Overruled. I will let him answer. It isn't going to hurt or help. Some of them may appeal it and print a record some day.
A. I will have to ask you to qualify your statement. Was the sister an enrolled member of the Creek Tribe?
A. No, she was not enrolled.
A. Then the Commission had no jurisdiction at all.
Q. And she would not be enrolled? A. The Commission had no plenary power to make anybody a citizen.
THE COURT: The Creek Nation put them on the roll and you got them from that roll and added descendants born after the enrollment? A. Yes, sir.
CROSS EXAMINATION BY MR. ANGLIN:
Q. Some say this question is in the record. If a person was on a Creek Indian roll prior to 1866 then he couldn't be a slave or child of a slave?
MR. PINSON: Objected to, incompetent, irrelevant and immaterial. That question is absolutely ridiculous. This witness couldn't know.
MR. ANGLIN: I thought he answered that.
THE COURT: No, he said if he was an Indian, on the Dunn Roll he is enrolled as a slave. If he was an Indian by blood he would go as an Indian. A. Absolutely.
THE COURT: And the Dawes Commission would have no power to change that status. I think I know that.
Q. If he was on a slave roll prior to 1866 he continued on it?
THE COURT: They had no roll. That was the only roll ever made.
A. If the court will permit me to straighten this out.
Q. Yes, sir.
A. Prior to the adoption of the treaty of 1866 these slaves were chattels. They had no standing.
Q. They were not on any roll? A. No, sir.
Q. If a man was on a roll prior to that time he was a Creek Citizen? A. I don't know what you mean by on a roll.
THE COURT: Here is the way that would be. I wouldn't need him to tell me. If he was on a roll prior to then one of those old rolls like 1867, if he was put on the Dunn roll and was confirmed that made him a slave and his status under the Creek Tribe was fixed, and the Dawes Commission had no power to change that. A. That is correct.
Q. Say he was on the 1867 payroll, could a slave be on that?
MR. PINSON: This man couldn't know.
THE COURT: If he knows I will let him say. What kind of a payroll?
MR. ANGLIN: 1857 payroll.
THE COURT: Payroll for what?
MR. ANGLIN: Tuckabatchee Town, Upper Creeks, showing the name of Siah Barnett and others, family group 105. (Handing instrument to witness)
THE COURT: The presumption is that if they were on a roll back there they were not negroes but were Indian. A. That would be the presumption.
THE COURT: Two persons might have the same name, if you find the same name on the roll of 1857 he could only be an Indian to rightfully get there, and if you find the same name on the Dunn Roll he is presumed to be a different person. A. That is correct.
THE COURT: They would have to go and prove as a matter of fact that he was the same one.
MR. PINSON: That is right. Your honor remembers that 1859 roll before these people were free that half Indian he was Indian, less than half he was negro.
THE COURT: Well if they put him on the Indian roll if he didn't have but a fourth he was Indian then. If the Dawes Commission followed that up and enrolled him and the law permitted them to do it he was Indian. If they enrolled him as being on the Dunn Roll he was a freedman. Mr. Beall knows. He was there. I have heard these oases. Of course they are different is the different tribes, and I believe outside of him I know as much.
MR. PINSON: I think you do.
THE COURT: I thought you said I didn't.
MR. PINSON: I never have said that. I have never questioned your learning or your integrity.
THE COURT: Thank you.
MR. PINSON: And I never will.
THE COURT: Thank you.
MR. PINSON: But I say this, I don't care if J. W. Dunn put a fullblood Indian on the Dunn Roll that didn't make him a freedman. He could have been a white man.
THE COURT: Yes, if he had been a white man or Indian he would be allotted as a freedman.
MR. PINSON: Yes, sir, but that would not make black, white or red.
THE COURT: No, but what he acquired would be.
MR. PINSON: That is right, yes, sir.
CROSS EXAMINATION BY MR. GIBSON:
Q. Mr. Beall, is there anyone connected with the enrollment of the Creek Tribe with such general recollection now living except yourself?
THE COURT: Those that worked there are all dead. A. I can best answer that by saying Tams Bixby, Ed Merrick, Philip B. Hopkins and W. H. Angell, with whom I worked during that period of enrolling the Creeks, are now dead.
Q. They were the ones most active? A. Yes, sir.
Q. They are all dead? A. Yes, sir.
Mr. ______: Was Captain McKennon there? A. He didn't have anything to do with the creeks.
REDIRECT EXAMINATION BY MR. PINSON:
Q. Prior to April 26, 1936, except as between freedmen on the one hand and Indians on the other, was there any distinction in your and or any distinction in instructions between Indians of various degree of blood?
A. You are limiting it merely to Indians
Q. Yes, sir.
A. There was no distinction prior to April 26, 1906.
Q. Were you ever authorized, required, requested or directed, or did you ever undertake to make any careful investigation of the blood of an Indian, or did you simply accept his statement and the statement of his family as to what his blood was? A. Mr. Pinson, I will have to qualify that answer a little bit. The Commission merely dealt with the right to enrollment. The Commission had nothing to do with alienation or removal of restrictions. We made no investigation as to any degree of blood --
THE COURT: But you took the statement of the enrollee? A. Yes, air.
THE COURT: And that statement as to whether he was full or half was put there as a rule on the statement of the enrollee? A. Yes, sir.
Q. I mean was there any investigation made except to accept the statement of the individual? A. No.
Q. And in case --
THE COURT: I will ask him. If you knew that wasn't so, if he stated he was a fullblood and you knew he wasn't you wouldn't put down as a fullblood? A. If your honor will permit a little levity I might give you an example.
THE COURT: Very well.
A. There was a Cherokee Indian, I doubt if he was more than a quarter, named Jack Ellis, Chief of Police under Col. Wisdom, and Jack Ellis appeared and applied for enrollment as a Cherokee citizen, I distinctly remember Col. Needles, who was a member of the Commission, asking him "How much Indian do you claim to be?" Jack said "I am a fullblood Indian." And he went on the Cherokee roll as e fullblood Indian, and it took him about ten years to get his restrictions removed.
THE COURT: He regretted he did that.
A. I assume that is that Col. Needles meant when Jack "I am a fullblood Indian." He said "If you are going to put yourself with the fullblood Indians I will put you on the roll that way. That is a matter of choice with you. We have nothing to do with determination of the degree of blood."
THE COURT: Speaking of Tams Bixby, about ten years ago I was trying a law suit in the Choctaw Nation. There was a lawyer lived at Junction City, Kansas, and he appeared representing the warrantor on a deed. After discovering oil in the Fitts Field they come in and claimed that a certain Indian was an heir -- I have forgotten his name, but I knew him then -- under this theory that before he had married the Indian woman that bore him the children that they put on the roll, that they just lived together by agreement; that he married another woman and had a child by her, and so they claimed that this Indian was an heir of this Indian too, I listened at them. They got these census cards and I got hold of it and saw it was in Tams Bixby's handwriting. I inquired where were they enrolled? One of these tent parties. Yes, Mr. Bixby enrolled them. I threw it out of court. That Indian supposed to be the father of this child he was a District Judge. He was a smart Indian. To get in there they had to prove this Indian just neglected seeing his child properly enrolled, enrolled every child from the other Indian and Tams Bixby didn't discover it. Do you think I would let them back in and get in on that oil? I saw a letter this man wrote Judge McDermott afterwards about it. He said he didn't know anything about the law, but soon after they started Judge Williams took charge for me and he developed Tams Bixby enrolled this lawyer and after then Tams Bixby's ghost marched along. I am going to write an article about Tams Bixby sometime. Wouldn't that be fine to put in? A. Yes, sir.
THE COURT: I said, let me see that. I knew his handwriting well. Then I wanted to find how he put it on there. Says, they enrolled them on one of these parties when they would all be camping. You wouldn't believe that he was a child of a man like that. James, that was the name, District Judge of the Choctaw Nation. Tams Bixby was there. He enrolled this one under the name of Walker I believe.
MR. PINSON: We have a hard time discovering Tams Bixby's handwriting from his signature.
THE COURT: Yes, but I knew his handwriting. Then I showed it to them. The lawyers agreed it was his handwriting. Now Brunson, of Ada, represented the other side and I had appointed him Supreme Court Commissioner. I backed him out of court. This old Kansan whom I had never seen before was the recipient.
MR. PINSON: That is all.
(Witness excused)
MR. PINSON: I can save Mr. Fulton's testimony entirely by having your honor's consent to file two certified copies.
THE COURT: Is that agreeable, gentlemen?
MR. GIBSON: What are they?
MR. PINSON: We want to offer certified copies of certain documents in the Dawes Commission where the Dawes Commission has taken and assumed jurisdiction in the Sampson Hope case and the Arbuckle case.
MR. GIBSON: There was a man in 1914 took jurisdiction to change census cards, but I never thought it was with the authority of the Dawes Commission which had long since passed out of commission,
THE COURT: Well, put him on the witness stand then.
MR. PINSON: Your honor, I don't know that he knows about these cases. I asked him to furnish me those copies.
THE COURT: Bring him in and let it be offered.
MR. PINSON: The copies themselves are the best evidence.
[end of testimony, page 8410]