DEPARTMENT OF THE INTERIOR
          
                       Office of the Assistant Attorney-General

                                     Washington, September 2, 1904

The Secretary of the Interior

Sir:

     I received by reference of August 19, 1904 the record in
the application of James M. Barber for enrollment of himself and
children as citizens by blood of the Creek Nation with request for
my opinion "whether the decision of the United States Court in the 
case herewith submitted, was final, and if not, what disposition 
should be made of it."

     Barber's application was heard before the Commission to the
Five Civilized Tribes May 25, 1903, at which time he testified that
he claimed the right to be enrolled as a citizen by blood of the
Creek Nation by virtue of his mother's admission in 1882.  His age in
1903 was 50.  As to his residence in the nation he testified "I came 
here in seventy two.  I went back to Texas and then moved my family
to the Creek Nation in 1890" and that he has since that time lived
near Wagoner in the Nation.  He was appointed and served as assistant
prosecuting attorney of the Nation for the Coweta district.  He made
application to the Creek authorities in 1890 for himself and children
at the $29.00 1890 payment but the committee "scratched me off the 
next day" and he got no money.  In 1890 the House of Kings passed 
favorable upon his application for admission of himself and children
to citizenship inthe Nation and it went to the House of Warriors
which never passed upon it.  July 13, 1895 he made application for
himself and children, to the Colbert Citizenshp Commission, but no
action was taken upon it.  Under the act of June 10, 1896 (29 Stat., 
321, 339) he appplied to the Commission to the Five Civilized Tribes
for admission of himself and children and the application was denied.
He appealed to the United States Court for the Northern District of
Indian Territory and the judgment of the Commission was affirmed.

     June 13, 1893 there was a proceeding against him in the 
Indian District Court, Judge Childers presiding, concerning his
holding of Indian land.  There was, he says, a trial and it was
"declared that he was all right, to go back to work."  This he con-
tends was an adjudicaton of his right to enrollment.

     The names of none of the applicants are found upon either 
the 1890, or 1895 rolls but they appear upon the 1895 doubtfull roll.

     Upon these facts the Commission adjudged him not entitled
to enrollment and denied the application.  The Indian Office was of
opinion that the action of the commissiom should be approved.

     The proof that Barber had any Indian blood upon which a 
right might have been founded is of the vaguest and slenderest 
character.  All that bears upon that question is his oral testimony
that his mother was admitted in 1882, but there is no identification
of her by name or of the authority by which she was admitted or any
roll referred to showing her name.  The facts as to his place of
birth, and of his residence are left equally shadowy.  He says he
come to the Nation in 1872 but went back to Texas and removed with
his family to the Nation in 1890.  From this and his age I infer that 
he was born in Texas in 1853 and reside there until 1890 when 37
years old, since which time he has quite persistently asserted his
right to membership in the tribe under claim of a strain of Indian blood, 
but without success, unless perhaps such as might be inferred 
by his acquittal by an Indian court upon a charge of being an intru-
der, or which however there is no competent proof in the record.

     The additional powers of the Commission, under the act of
June 30, 1902 (32 Stat., 500-2) are limited to specified classes
of children born to persons whose names are borne on the authentica-
ted rolls of 1890 and 1895 and four others named in the act.  Except
as to these special classes the act of 1902, supra, limits the powers
of the Commission to those conferred by the act of March 1, 1901 (31
Stat., 861, 869) which provides that-

     All citizens who were living on the first day of April,
eighteen hundred and ninety-nine, entitled to be enrolled under
section twenty-one of the Act of Congress approved June twenty-
eighth, eighteen hundred and ninety-eight, entitled "an Act for the
protection of the people of the Indian Territory, and for other
purposes," shall be placed upon the rolls to be made by said commis-
sion under said act of Congress, ----

    All children born to citizens so entitled to enrollment, up
to and including the first day of July, nineteen hundred, and then
living, shall be placed on the rolls made by said commission;

    Said commission shall have authority to enroll as Creek
citizens certain full-blood Creek Indians now residing in the Chero-
kee Nation, and also certain full-blood Creek Indians now residing
in the Creek Nation who have recently removed there from the State
of Texas, and the families of full-blood Creeks who now reside
in Texas, and such other recognized citizens found on the Creek rolls 
as might, by reason of nonresidence, be excluded from enrollment by
section twenty-one of said Act of Congress approved June twenty-eighth,
eighteen hundred and ninety-eight: Provided, that such non-
residents shall, in good faith, remove to the Creek Nation before said 
commission shall complete the rolls of Creek citizens as aforesaid.

     As the Barber applicants do not claim or show right under
the special classes named in the act of 1902 or 1901, supra, his
claim, must be based upon section 21 of the act of June 28, 1898 (30
Stat. 495, 502) which so far as here material provides that-

     Said commission is authorized and directed to make correct
rolls of the citizens by blood of all the other tribes, eliminating
from the tribal rolls such names as may have been placed theron by 
fraud or without authority of law, enrolling such only as may have 
lawful right thereto, and their descendants born since such rolls
were made, with such intermarried white persons as may be entitled to
Choctaw and Chickasaw citizenship under the treaties and the laws of
said tribe.

     As none of the applicants' names appear on the authenticated
rolls of 1890 or 1895, they are not within the provisions of the act
referred to and the powers of the Commission under the act of June
10, 1896 (28 Stat., 321-339) expired under the limitations of the act
and by its final adverse action upon the application.  From that
action the applicants appealed and by the express terms of the act the
judgment of the court theron was final.  The bar so arising has 
not been raised by Congress, except as it may affect the members of 
the special classes I am of opinion that their rights are fully barred by 
the adverse judgment of the court upon their appeal.


     But if this bar was taken away, the same result must
follow.  The Indian law must govern where not inconsistent with nor
overborne by an act of Congress. The laws of the Creek Nation, page
57, edition of 1880 provides that-

     Sec. 1.  All persons having resided out of the limits of 
Muskogee Nation, and whose rights as citizens of the same may
seem to be questionable in consequence of intermarriage with 
non-citizens, shall be bona fide citizens of this Nation, provided they
can prove to the satisfaction of the proper aughorities, that they 
are of Muskogee descent, and not furher removed than the fourth degree.

     Sec. 2.  All persons who have been at any time adopted by
the recognized authorities of the Muskogee Nation, and all persons of
African descent, who were made citizens by the treaty of June 1866,
between the Creek Nation and the United States, shall hereafter by
recognized as citizens of the Muskogee Nation.

     Sec. 3.  Any person claiming citizenship under these pro-
visions, shall, in order to establish his or her rights, prove the
same by a responsible and disinterested native witness before the
district court.
'
     Granting that Barber has a strain of Indian blood he has not 
proven that he is "not further removed than the fourth degree."

     The act of the Creek Council of October 26, 1889 also 
provides that-

     Sec. 295.  All persons who were born, or who may be here-
after born, beyond the limits of the Indian Territory, and may have
heretofore been entitled to make application for citizenship, on
account of Indian blood or tribal adoption, and who have continuously
resided beyond or outside of the jurisdicitonal limits of the Musko-
gee Nation for a period of twenty-nine years, are hereby declared
aliens, and not entitled to citizenship in the Muskogee Nation, or
to any of the privileges therof.

    Sec. 296.  The minor children and descendants of persons
so declared aliens are hereby also excluded from citizenship in the
Muskogee Nation and from all the privileges therof.

     Sec. 297.  All persons who have heretofore applied for
citizenship in the Cherokee, Choctaw, Chickasaw, or Seminole nations,
and accompanied their application with a declarition of right to
citizenship in such nation, by blood or adoption, are hereby declared
aliens, and shall not be entitled to citizenship in the Muskogee
Nation, or to the privilege therof.

     Sec. 298.  This act shall not apply to persons who have
heretofore filed application for citizenship where the cases are
now pending.

     The fair deduction from Barber's testimony is that he was
born in Texas and resided without the Creek Nation until 1890 when
hw was 37 years old, so that he was not within its exception.  He
was made by the act an alien to the Nation, though he were a full
blood Creek and it never has since consented to his rehabilitation
to the body of its citizens.  Opinion Springer, Judge, Creek Citizen
ship cases. --Decision U. S. Courts, Ind. Terr. 1899, p. 524

     I am therefore of opinion that the action of the Commission
should be approved.

                                   Very respectfully,

                                   Frank L. Campbell,
                                   Assistant Attorney General

Approved:  September 2, 1904
           Thomas Ryan,
             Acting Secretary