Sonya Balmores

bablah says:

All of these cases come here on appeal under the Act of July 1, 1902, from
the United States Court for the Central District of the Indian Territory. All
of the appellants claim Choctaw Indian Blood or intermarriage with persons
claiming it, through the same common ancestress, Peggy or Margaret Marlowe,
alleged to be the daughter of one Moontubbee or John Patterson.
The opinion in this case is to determine the rights of all of the appellants
before this Court; in each and every of the above styled cases. It was agreed
by both parties appellant and appellee that the evidence in all these cases,
so far as applicable, should be considered in each and every of the causes,
and hence this opinion applied to them all. Separate judgments, however, are
to be rendered in each case.
Susan Eliza Pierce, a white woman of respectable appearance and bearing,
was introduced as a witness for the Choctaw and Chickasaw Nations, who testified
in substance, as follows: She stated that she was fifty-seven years of age and
lived in Fannin County, in the State of Texas, and had lived in that State
about fifty years. She was acquainted with Reuben Marlow’s wife, Margaret or
Peggy, who is the common ancestress through whom these appellants, and those
involved in the case of Epsie Underwood, and of Jane Marrs, and others mentioned
herein, claim their Indian blood. She got acquainted with this woman, the wife
of Reuben Marlow called Margaret or Peggy, about fifty years ago, and knew her
up to about twelve or thirteen years ago; that woman is now dead, and she went
before that time, about eight or nine years ago the witness thinks, to Cook
County, Texas, and then she, Peggy or Margaret Marlow, as she was called, came
to the Indian Territory. The witness knew that woman about as well as she could;
lived within three or four hundred yards of her, and was very intimate with the
family for a great many years. She first heard talk in that family about a Choctaw
claim and Choctaw blood, she can not tell the exact time, but it was about the time
that a man named Beal, a member of that family, came back from Indian Territory
and through all the years that she had thus been intimate with this family
she never heard any talk among them about their having Choctaw blood, until this
Martha Beal came to the Indian Territory, then she heard the old lady Peggy
or Margaret Mawlow talk about it, and she heard her say she had no Indian
blood in her a dozen times, and that the old lady did not like for her
descendants to make the claim of Choctaw blood which they did, and so far
as she knows the old lady did not join in the claim; and in fact the records
in all these cases show that she did not join in any of them.
On cross examination the witness reiterated that the old lady above referred
to told her that she had no Indian blood in her and that she looked with
disfavor on the claim her children were making because she had no Indian
blood and that she told her so a dozen times after the Beals moved to the Indian
Territory from Texas. That she, the old lady, thought she had no Indian blood.
There was then introduced a record in print of a case No 12742 wherein the
Choctaw Nation and the United States were parties, and particular reference
made to pages 255 and 908 thereof, wherein is given the family and children
of Moontubbee a Choctaw Indian whom the applicants in this Court allege to be
identical with John Patterson whom these claimants now for the first time
in the case, according to the original petitions, claim to have been the father
of the old lady Peggy or Margaret Marlow. Attention was also called to the fact
that the applicants had relied heretofore in the case below, on the affidavit of
a man named Sam Perry, who stands before this Court in other cases as an
unreliable witness. The appellants in rebuttal then called S H Pierce, the husband
or Mrs Pierce whose testimony I have stated above. He corroborated the
statements of his wife as to the residence of himself and wife in Fannin County,
Texas, within three or four hundred yards of the family of Mrs Marlow(Peggy or
Margaret) as heretofore stated. He stated that he had never known that Peggy
or Margaret Marlow ever claimed Indian Blood; he did not know that she was the
daughter of John Patterson, but she claimed to have a brother of that name who
lived in the State of Missouri, who she was looking to come and see her, but
he did not believe he came to see her. There was then read to him by the cousel
of the plaintiffs what purported to be an affidavit, which he said he had not signed
and did not make, and could not recall it. He did not remember the statement
in the alleged affidavit that these people had Choctaw blood in them; does not
recall that he said all that was thus read to him, and he recalls making
some affidavit before a Justice of the Peace, and the things stated therein,
some of them, are not true as he said.
Reuben Marlow was then called for plaintiffs and testified that the “old
lady” Peggy or Margaret Marlow, was the wife of his grand-father. He stated that
his grand-father at one time told him that his wife had Indian blood in her,
when he was small, but if the tribe she belonged to was mentioned he does
not remember it; that he was brought here to-day as a witness for the Nations;
his grandmother has been dead two or three years, and he further states that
she told him, after she came to the Territory, after some of these people
had been admitted as citizens of the Choctaw Nation, about the time of the
winding up of the Dawes Commission, that she had a right in the Choctaw Nation
as an Indian, and would claim it and give it to him. Of course all the statements
this witness made as to what his grandmother told him are incompetent, being
heresay and self serving, and the declaration of one in his own behalf to
another is competent when against the interest of the declarant but not in
his or her favor. See P & TRR Co v. Stimpson, 14 Peters, US Sup Ct Reports,
448. George Lee White one of the claimants was introduced for the appellants.
He stated that he first moved from Texas to the Indian Territory about 1892.
He lived in the Choctaw Nation about three years, then went back to Texas to
wind up his father’s estate, and was in Texas three years, but his intention was
to come back to the Territory. His mother was Cynthia Marlow, the daughter of
the old lady Peggy or Margaret Marlow. His evidence as to his alleged ancestor,
the alleged Moontubbee or John Patterson, was mere hearsay statements as
to claims of his grandmother Peggy or Margaret Marlow, and is incompetent. The
witness is an interested witness and in his original application makes no
mention of Moontubbee alias John Patterson. He never knew this man except
by tradition, and his understanding is that Moontubbee is on Ward’s Roll as
a Mississippi Choctaw claiming under the treaty of 1830. He heard this from
Henry Byington, his attorney, at Caddo. Then he says he believes he first
heard it from Dixon Durant, a witness for him. He says Peggy or Margaret, his
grandother, was never a party to any claim as a Choctaw by blood. His
grandmother came from Missouri to Texas many years ago. He first looked over
Ward’s Roll at the instance of Henry Byington. He sold his last land he owned
in Texas four years ago after his admission to be a citizen by Judge Clayton
of the United States Court for the Central District of the Indian Territory.
His mother’s sister was the first one that told him about Moontubbee and Ward’s
Roll; before that he had only heard that Peggy as the daughter of John
Patterson, and he never heard his mother say anything about being related
to Moontubbee.
There was then offered as witness for the plaintiffs Duke Marlow, a step-son
of Peggy Marlow, his father being her husband after the death of his mother.
He is a white man and quite venerable(deserving of respect) in appearance.
He was somewhere about four or six years old when his father married Peggy
or Margaret Mawlow and he was born about the year 1826. On cross examination
he states he was born in the State of Alabama and afterwards lived in the State
of Missouri; his father lived in Wright County in that State and then moved
to the County of Madison in the same State, and he himself lived there until he
went to the State of Texas about the year 1850. When he first came to his
father’s home from Alabama, when after his mother’s death, as a small child he
had been living with his grandfather in Alabama, he found his father and his
step-mother Peggy or Margaret Marlow, living in the State of Tennessee in the
Cumberland mountains. The Cumberland mountains as is well known are in East
Tennessee, far removed from the Choctaw Nation in Mississippi. They lived there
six months and then went to Alabama, after the mother of Peggy aforesaid, who
lived in Jackson County, Alabama. He knew his step-mother Peggy from that
time until her death about two and a half or three years ago. He knows not what
her blood was or who her father was save by hearsay. He thinks it was about 1832
that his father married Peggy. Again he says the first time he ever saw her was in
the Cumberland mountains in Tennessee.
It appears in evidence in the Epsie Underwood case, a companion case to this,
that the said Epsie Underwood, a witness for herself, made an affidavit in
1896 to be used before the Commission to the Five Civilized Tribes, ex-parte
before her attorney also acting as a Notary Public. All this witness Epsie
Underwood knew about her being a Choctaw by blood, is hearsay and
inadmissible. She first remembers herself in Missouri and then in Texas.
She has no knowledge of the residence of her ancestors either in Mississippi
or Alabama. Crawford Marlow, the brother of Epsie Underwood, as a witness,
testified, he claims to have been admitted and his sister Mrs. Beal in the same
case, which has not been appealed. His grand-mother Peggy Marlow was never
an applicant for admission to citizenship as a Choctaw by blood; he knows nothing
except by hearsay as to her Indian blood; he never heard his mother say to what
blood “Peggy” belonged; he was born in Missouri. Mrs. Beal, his aunt, was a
witness in 1892, for him before the Choctaw council and for Epsie Underwood also;
his mother was living in 1896 and he does not remember whether she still lived
in Texas or had removed to the Indian Territory. His father owned land in
Missouri when he left there and went to Texas; he started from Missouri to
Texas going through Little Rock, Arkansas and Clarksville, Texas; he has quite
a number of brothers and sisters whose descendants now live in Texas; he
claims, by hearsay about one sixteenth Choctaw blood.
Others of the interested witnesses testify that Peggy or Margaret Marlow
did not apply for citizenship in the Choctaw Nation and did not want it.
William A Underwood a witness for claimants says, on cross examination, that
he never heard his wife had any Choctaw blood until after his marriage; the
older members of the family started the claims and he joined in. His wife’s
mother Peggy or Margaret Marlow was the oldest of the family and knew
more than any one else about whether they had Indian blood or not, and
she seems to have denied to disinterested witnesses time and again that
she had any Indian blood. I have not been able to find, after diligent search
and examination, of all the oral evidence adduced here, in all the cases herein
intended to be decided, and mentioned in the caption of this opinion, any
evidence from any of the parties hereto, of a competent nature which shows
that the “Peggy” or “Margaret” Marlow under whom all these appellants claim,
had any Indian blood in her veins.
Although these parties originally do not seem to have claimed through
Moontubbee or John Patterson, as they claim him to have been, yet now they do
claim through him. It is interesting and instructing in this connection to
advert to pages 255 and 908 of a record before the Court of claims of the
United States, entitle the Choctaw Nation against the United STates. It will
there be found that according to that record Moontubbee in 1838, had as his
oldest child a man named James Patterson; that he was 22 years old in 1838, or
15 years old in 1831, or 16 in 1832, and living in the State of Mississippi,
and yet this Peggy or Margaret Marlow (nee Patterson) was then married up in
the Cumberland mountains in Tennessee, and the record of that case shows from
the lips of her alleged father Moontubbee, under oath, that he had no such
child as she was, and that his son and oldest child, was only 15 years of age
in 1831 and 16 years old in 1832. This alone utterly disposes of any descent
on the part of this “Peggy” or “Margaret” Marlow from Moontubbee, and many
other facts appearing on the above merits … … or that … show the same.
Then again D D Durant, an affidavit maker for these people, is shown in the
case of John Mitchell, et al. No 101, on our Choctaw Docket, in his oral
testimony before this Court, to have made affidavits in various citizenship
cases like this and stated facts to be true therein, which he either knew
to be untrue, or knew nothing about, except what some of these applicants told
him.
The use of such evidence as his and Sam Perry’s show these applicants utterly
devoid of good faith in their applications, and taken in connection with
all the other facts and circumstances developed in these cases, stamp their
efforts to obtain by such means, the property of others, with the ineffaciable
brand of fraud. It is plain to me that these peoples ancestors were not Choctaw
Indians at all, nor do I believe they were of any other Indian blood.
They or their ancestors are never shown to have been in the State of
Mississippi where the Choctaws lived, or at all. As early as 1831 or 1832
Peggy or Margaret Marlow, through whom they claim, lived and was a married
woman, wife of a white man named Marlow, in the Cumberland mountains in
Tennessee. They moved from there to North Alabama, and then to Missouri
and then to Texas, where she lived for more than forty years. One of her daughters
who married a man named Beal, came to the Indian Territory, and then it was that
against the wishes of their alleged Indian ancestress, they hatched up the
scheme to claim Choctaw Indian blood, and obtain rights as citizens. In dealing
with the Choctaw council they either must have deceived it, or used other
questionable means to get on the roll, for if the true facts in ther case
had been developed then, as they are now, they could never have justly obtained
what they sought, and others of the same blood have apparently done the same.
I am of the opinion that none of the parties to this appeal, who are properly
before this Court,(and none are except those included in the judgments below,
and in the petition for appeal here), are entitled to be declared citizens
of the Choctaw Nation, either by blood or intermarriage as their claim may be,
or entitled to enrollment as such, or to any rights which flow therefrom, AND
IT IS SO ORDERED. H S Foote Associate Judge.
We Concur Sperreer B Aclerrer Chief Judge.

http://sites.rootsweb.com/~txfannin/marlowfam.html