African-Native American Genealogy Forum
NDN Descendant Unveiled ~ Long but worth it!
In Response To: Re : Now for the legal language impaired among us... ()
You ask a very good question.
Clearly as genealogist we seek to establish our “lineal descent” when we search for our ancestors. Our lineal descent comes from a "SET" of distant ancestors, and negates the “hypodescent” theory that says if you have one drop of African blood, then you are African.
We are a mixture of all that has come before us, and that may include the blood of Africans, Indians and for the lack of a better description, European.
I contend the logic of a matrilineal society (which is the basis for denying those erroneously classified as freedmen who in fact had "Indian blood") does not negate your lineal descent.
I am reminded of the other argument used in conjunction with the matter of children being a product of a Chickasaw and/or Choctaw male and a woman of “African descent.” I believe the attorney makes a very compelling argument for including those people who can establish an ancestor with “Indian blood,” whether the parents were married or not. The legitimate/illegitimate label is nothing more than a smoke screen; it does not negate your lineal descent or you possessing “Indian blood.”
CHOCTAW CONSTITUTION, ADOPTED IN 1860
The constitution of the Choctaw Nation, adopted in 1860, declared:
Thus the Choctaw constitution emphatically recognized the binding force and effect of the treaties with, and laws of, the United States. Under this provision of the Choctaw constitution no valid Jaw could be enacted that was in conflict with any treaty of the United States (Robb v. Burney, 168 U. S., 218). No person could, by a Choctaw law, be divested of a right of which he or she was possessed under a treaty with the Government of the United States. If, therefore, any law was ever enacted by the Choctaw Nation at tempting to exclude any child of either a Choctaw man or woman from participation in the tribal property it would have been unconstitutional, null, and void. But counsel have been unable to find any law enacted at any time by the Choctaw or Chickasaw governments which has attempted, directly or indirectly, to exclude children of recognized members of the tribes from participating in the distribution of tribal property or from being enrolled as unqualified members of the tribes.
RIGHTS CONFERRED BY TREATY OF 1830
Now, what rights did the treaty of 1830 confer upon your petitioners? That treaty conveyed the lands now being allotted to the members of the Choctaw and Chickasaw nations, to the Choctaw Nation, in fee simple to them and their descendants. What did this language mean? The Assistant Attorney-General for the Department of the Interior, in the test case of Joe and Dillard Perry, rendered under date of February 21, 1905, after an unusually elaborate consideration of the case—the Assistant Attorney-General and his three assistants sitting as a board of review—construes it as follows:
The treaty right (referring to the treaty of 1830) was to the Choctaw and Chickasaw nations and their descendants. Descendants (sic) is a term of wider significance than heirs or legitimate issue, and includes those springing from an ancestor, whether legitimate issue or not.
Descendants, as defined by Bouvier, vol. 1, P. 550, are those who have issued from an individual, including his children, grandchildren, and their children to the remotest degree. (Ambler’s Reports, p. 327; 2 Brown’s Chancery Cases, chap. 30, p. 230; 1 Roper on Legacies, p. 115.)
Let us analyze the language used in the treaty and made the operative words of grant in the patent. The grant was:
To the Choctaw Nation, in fee simple, to them and their descendants, to inure to them while they shall exist as a nation and live on it.
The grant was not limited exclusively to the nation, but was exclusively limited in fee simple to the Choctaw Nation and their descendants to inure to them. To whom did it inure? To them, the descendants of those persons then comprising the nation. What does the word “inure” mean, and for what purpose is it here employed? It means:
1. “To pass into use.”
And it was employed for the purpose of passing the estate to the descendants to serve to the use or benefit of them.
Now, let us rewrite this section and insert in lieu of the word “inure “these words of definition:
The grant would then read:
To the Choctaw Nation, in fee simple, to them and their descendants, to take or have effect as to them while they shall exist as a, nation and live on it.
To the Choctaw Nation, in fee simple, to them and their descendants, to pass into use for them while they shall exist as a nation and live on it.
To the Choctaw Nation, in fee simple to them and their descendants, to serve to the use or benefit of them while they shall exist as a nation and live on it.
The word “descendant” meaning:
A person who is descended from another; anyone who proceeds from the body of another, however remotely.
And the word “inure” meaning:
1. “To take or have effect as to them.”
We thus determine beyond question the true meaning and intent of this language.
Again the word “-descendant “is not employed in legal phraseology as a technical word used in connection with governments for the purpose of defining their national acts and powers.
Nowhere in legal phraseology is the word “descendant” one of the technical legal words employed in a grant to vest in the now existing individual absolute indefeasible title. The accepted universal technical legal words employed being “heirs,” “successors,” and “assigns.”
The word “descendant” not being one of the accepted technical legal words employed in vesting title in fee simple in a now existing person, it must be construed in accordance with its true meaning and given the full import of that meaning.
Thus the word “descendant” here is used for the sole purpose of fixing the rights in a communal estate of persons yet unborn whose rights in such estate attach simultaneously with their birth and become vested.
Where a treaty admits of two constructions one restrictive as to the rights that may be claimed under it and the other liberal, the latter is to be preferred. (Shanks v Dupont 3 Pet, 242) Such is the settled rule of this court.
So said Mr. Justice Swanye in delivering the opinion of the court in the case of Hauenstein v. Lynham (100 U. S., 487), and citing the above referred to decision by Mr. Justice Story.
This being the settled rule of the Supreme Court of the United States, certainly a reasonably liberal construction of the word ‘descendant” would include not only the children, but the grandchildren and the great-grandchildren, and so on to the remotest degree, even though the more remote descendants were not possessed of as great a quantum of Indian blood as was the ancestor.
Nor could it have been the intention of the contracting parties that only legitimate issue, as defined and recognized in civilized communities to-day, should take under the grant.
The people comprising the Choctaw Nation in 1830 were living in a state of nature. The living together of a man and woman constituted a valid marriage The abandonment of the wife by the husband constituted a valid divorce, and the issue of such unions were possessed of all their natural rights. (Robertson’s History of America, book 4; Wall v. Williamson, 11th Alabama, 839; Johnson v. Johnson’s administrator, 9th Missouri Reports p. 88.)
Thus, under the treaty of 1830, the above-quoted terms of which have never been changed or altered by any subsequent treaty with the United States or law of Congress, a descendant of a Choctaw was entitled to enjoy the fruits of the grant to an equal degree with any full- blood Choctaw.
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