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African-Native American Genealogy Forum

Now for the legal language impaired among us...

The contention of the Commissioner to the Five Civilized Tribes, and the Indian Office, that a child born to free parents takes only the status. of the mother because she is possessed of some negro blood is a legal absurdity, as this principle applies only to slaves and animals. Bouvier, in discussing this question, says the maxim:
Partus sequitur ventrem.—The offspring follow the condition of the mother is the law in case of slaves and animals, but with regard to freemen, children follow the condition of the father. (Broom Max., 516; 13 Mass., 551; 18 Pick., 222; 85 Ala., 605.)

This proposition of law, as enunciated by Bouvier, was strictly adhered to by Mr. Justice Story in delivering the opinion of the Supreme Court of the United States in the case of Shanks v. Dupont, reported in 3 Peters, 242, and has been steadfastly adhered to in the decisions of both the Federal and State courts to this day.
In the case of the United States v. Ward, reported in the 42 Fed. Rep., 320, the court held that as Ward’s father was a negro, notwithstanding the fact that his mother was an Indian, as he was born of free parents he took the status of his father, and the court further says:

The statutes of the United States nowhere define an “Indian.” As a matter of fact, the defendant is no more an Indian than he is a negro, and no more a negro than he is an Indian. In the case of U. S. v. Sanders (Hemp. 486) the court held that the quantum of Indian blood in the veins did not determine the condition of the offspring of a union between a white person and an Indian, but further held that the condition of the mother did determine the question, and the court referred to the common law as authority for the position that the condition of the mother fixed the status of the offspring.

In the subsequent case of Ex parte Reynolds (5 Dill., 403), the court said that the first point decided in the Sanders case was sustained by the common law, as also the last point, if applied to the offspring of a connection between a freedman and a slave. But in Ex parte Reynolds the court pointed out that— “By the common law this rule is reversed with regard to the offspring of free persons. Their offspring follows the condition of the father, and the rule, partus sequitur patrem, prevails in determining their status. (1 Bouv. Inst., p. 198, P., 502; Ludlam v. Ludlum, 31 Barb. 486; 2 Bouv. Law Diet., 147; Shanks v. Dupont, 3 Pet., 242.)

This is the universal maxim of the common law with regard to freemen—as old as the common law, or even as the Roman civil law, and as well settled as the rule partus sequitur ventrem—the one being a rule fixing the status of freedmen, the other being a rule defining the ownership of property; the one applicable to different political communities or States, whose citizens are in the enjoyment of the civil rights possessed by people in a state of freedom, the other defining the condition of the offspring which had been tainted by the bondage of the mother. No other rules than the ones above enumerated ever did prevail in this or any other CIVILIZED country.

In the case of Ludlam ‘V. Ludlam (31 Barb., 486), the court says: ‘The universal maxim of the common law being partus sequitur patrem, it is sufficient for the application of this doctrine that the father should be a subject lawfully and without breach of his allegiance beyond sea, no matter what may be the condition of the mother.’ The law of nations, which becomes, when applicable to an existing condition of affairs in a country, a part of the common law of that country, declares the same rule. Vattel, in his Law of Nations (p. 101), says:

“As the society can not exist and perpetuate itself otherwise than by the children of the citizens, these children naturally follow the condition of their fathers and succeed to their rights. * * The country of the father is therefore that of the children, and these become true citizens merely by their tacit consent” Again, on page 102, Vattel says: ‘By the law of nature alone, children follow the condition of their fathers and enter into all their rights.’ This law of nature, as far as it has become a part of the common law, in the absence of any positive enactment on the subject, must be the rule in this case.’

But if every one of these petitioners is illegitimate, as has been so strenuously contended by both the attorneys for the nations and the Commissioner to the Five Civilized Tribes, they would still he entitled to enrollment as citizens by blood of the Choctaw and Chickasaw nations if the Commission had performed its duty under the act of June 28, 1898, and had placed in the examination records a statement of their Indian blood and their request to be enrolled as citizens. This is not the bare assertion of counsel. It is the finding of the Assistant Attorney-General for the Department of the Interior, the highest tribunal authorized by law to pass upon their rights. Here is what he says of their rights in an opinion rendered February 21, 1905, affirmed in an opinion rendered November 11, 1905, and re affirmed September 28, 1906:

The treaty right (referring to the treaty of 1830) was to the Choctaw and Chickasaw nations and their descendants. Descendants, as pointed out in the case of James W. Shirley, is a term of wider significance than heirs or legitimate issue, and includes those springing from an ancestor, whether legitimate issue or not. The descent of the applicants is fully and indubitably shown to be from Charles Perry, a Chickasaw by blood, recognized by him and born of a union that he and Eliza evidently regarded as a lawful one, openly avowed and by the Chickasaw Nation tolerated, which it did not compel him to abandon or impose the penalties of its laws upon him for contracting and observing. That law properly enough imposed no penalty for contamination of blood upon the innocent issue of such a union. I am therefore clearly of the opinion that the applicants are entitled to be transferred to the roll of Chickasaw.


18 Dec 2002 :: 14 Nov 2008
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