No. 11.
Commission To The Five Civilized Tribes,
Muscogee, Ind. T., March 23, 1901.
The Secretary of the Interior.
SIR: I have the honor to acknowledge receipt by departmental reference of March 2d of a letter from Richard C. Adams, dated February 27, together with a map of the Cherokee Nation, showing by coloration the lands which said Adams represents to be now in the possession of Delaware Indians, and which they wish to have segregated by this Commission, as provided by section 25 of the act of Congress of June 25, 1895, and the pending, Cherokee agreement.
In response to the Department’s request for a report and recommendation in the premises, I have to state that the Commission is not advised whet hm. said Richard C. Adams is authorized to represent the Delaware in the matter of segregating their lands, and whether, therefore, the lands designated are the lands desired by the Delaware or not. Granting that he is the duly accredited representative of the Delaware Indians, the Commission should in due time be furnished with a list of the lands which it is desired to have segregated, described by legal subdivisions.
Section 25 of the act of Congress referred to provides as follows:
That before any allotment shall be made of lands in the Cherokee Nation there shall be segregated there from by the Commission heretofore mentioned, in separate allotments or otherwise, the one hundred and fifty-seven thousand six hundred acres purchased by the Delaware tribe of Indians from the Cherokee Nation under agreement of April eighth, eighteen hundred and sixty-seven, subject to the judicial determination of the rights of said descendants and the Cherokee Nation under said agreement: that the Delaware. Indians residing in the Cherokee Nation are hereby authorized and empowered to bring suit in the Court of Claims of the United States within sixty days after the passage of this act, against the Cherokee Nation, for the purpose of determining the rights of said Delaware Indians in and to the lands and funds of said nation under their contract and agreement with the Cherokee Nation dated April eighth, eighteen hundred and sixty-seven, and jurisdiction is conferred on said court to adjudicate and fully determine the same, with right of appeal to either party to the Supreme Court of the United States.”
The Commission is not yet ready to allot the lands of the Cherokee and will not begin making allotments, in all probability, until the roll of Cherokee citizens shall have been completed or legislation be enacted other than that which now governs allotment in the Cherokee Nation. It is therefore not essential that the Commission segregate the lands at this time in order to fulfill the requirements of the statute with respect to segregating the lands prior to allotment. The indications are that considerable time will yet elapse before the Commission will be in readiness to allot the lands of the Cherokee.
Furthermore, under the provisions of the act above quoted, the lands claimed by the Delaware are to be segregated “subject to a judicial determination of the rights of said descendants and the Cherokee Nation under said agreement.” A judicial determination of the rights of the parties in interest has thus far not been reached by the Court of Claims, wherein suit was instituted, and a recognition of the Delaware’ claim to 157,090 acres should not, therefore, precede such determination.
In as much as the lands of the Cherokee have been surveyed, a mere segregation of the land claimed would involve no act on the part of the Commission other than to withhold the same from general allotment, and should allotment in the Cherokee Nation therefore be reached while the suit is yet pending the Commission may, in its opinion, properly reserve the 157,600 acres pending a decision by the Court of Claims, provided that an accurate and authentic description of the lands claimed by the Delaware be furnished it.
Very respectfully,
THOS BIXBY, Acting Chairman
(Through the Commissioner of Indian Affairs.)
No. 12.
Department Of The Interior,
Washington 8, 1901.
Commission To The Five Civilized Tribes,
Muskogee, Ind. T
GENTLEMAN: The Department is in receipt of your communication of March 23, 1901, reporting upon a letter from Richard C. Adams, dated February 27, 1901, relative to the segregation of 157,000 acres of Delaware lands in the Cherokee Nation.
The Commissioner of Indian Affairs forwarded your report April 3, and concurred in your recommendations.
The Department has this day advised Mr. Adams of its approval of your views in the premises.
Respectfully,
THOS. RYAN, Acting Secretary.
No. 13
Department Of The Interior,
Washington, April 8, 1901.
Commissioner Of Indian Affairs.
SIR: The Department is in receipt of your communication of April 3, 1901, transmitting report of the Commission to the Five Civilized Tribes, dated March 23, 1901, upon a communication from Richard C. Adams relative to the segregation of 157,600 acres of Delaware lands in the Cherokee Nation.
Mr. Adams has been this day advised that the Department concurs in the views of the Indian Office and the Commission, and enclosed a copy of your said communication.
Said Commission is informed of the action taken in a letter herewith transmitted for your information, to be duly forwarded.
Respectfully,
THOS. RYAN, Acting Secretary.
No. 14
Department Of The Interior,
Washington, April 8, 1901.
Mr. RICHARD C. ADAMS,
Kellogg Building, Washington, D. C.
SIR: The Department is in receipt of a report from the Commission to the Five Civilized Tribes upon your letter dated February 27, transmitting a map of the Cherokee Nation showing by coloration the lands which you represent to be now in possession of Delaware Indians, and which they desire to have segregated by the Commission, as provided by section 25 of the act of Congress approved June 28, 189S. (30 Stat., 495.)
The Commission quotes section 25 of said act, and states that it is not yet ready to allot the lands of the Cherokee, and will not begin making allotments in all probability until the roll of Cherokee citizens shall have been completed or legislation be enacted other than that which now governs allotments in the Cherokee Nation: that it is not essential that the Commission segregate the lands at this time in order to fulfill the requirements of the statute with respect to segregating the lands prior to allotment, and that the indications are that considerable time will yet elapse before the Commission will be in readiness to allot the lands of the Cherokee.
The Commission further reports that since the lands of the Cherokee Nation have been surveyed, any segregation of the lands claimed would involve no act on the part of the Commission other than to withhold the same from general allotment; and should the Commission he ready to allot the lands in the Cherokee Nation while the suit is pending between said nation and the Delaware, it could properly reserve the 157,000 acres, pending a final decision of said suit, ” provided that an accurate and authentic description of the lands claimed by the Delaware be furnished it.”
The Commissioner of Indian Affairs forwarded said report on April 3, 1901, and recommends that you he advised that “the Commission should be allowed to exercise its sound discretion as to the time when the segregation contemplated should be made, it being understood, of course, that no allotments will be made to the Cherokee prior to the segregation of the Delaware lands.”
The Department concurs in the views expressed by the Commission and the Commissioner of Indian Affairs, and encloses herewith a copy of the report of the Commissioner for your information.
Respectfully,
THOS. RYAN, Acting Secretary.
No. 15.
May 7, 1901
The Secretary Of The Interior,
Washington D.C.
DEAR Sir: While I was in the West I received your letter of the 8th of April, inclosing report of the Commissioner of Indian Affairs in regard to my request on behalf of the Delaware Indians for the segregation of their lands, Among other things it says:
“This Office has no means of ascertaining the necessity, if any there be, of segregating the said Delaware lands at this time. Neither does it understand that any necessity exists for such action. So far as is known the Delaware are occupying the lands claimed by them without restriction or objections on the part of the Cherokee, and unless some good reason be shown to the contrary the Commission should be allowed to exercise its sound discretion as to the time when the segregation contemplated should be made, it being understood, of course, that no allotments will be made to the Cherokee prior to the segregation of the Delaware lands.”
I must again ask, as protection to the Delaware Indians, that the lands selected and in possession of the Delaware Indians be segregated at once, and I believe the following reasons fully justify my request:
The Delaware Indians have about 51,000,000 worth of improvements on this land, which is the proceeds of the invested funds and the labor of their hands. Some of them have been living on these lands fur over thirty years; others only a few years. Some of them have large holdings-two or three thousand acres-others only a small amount, still the improvement’s on the lands belong to the Delaware who paid for or made the same, and the 157,000 acres of land is land that has been in possession of Delaware Indians according to the Cherokee law. The division of this land among the individual Delaware will be determined by the Court of Claims.
The Curtis law commands the segregation of the Delaware lands either in separate allotment or otherwise.
Since the selections and locations of the Delaware lands have been submitted to the Court of Claims certain individuals, Cherokee citizens, have infringed on ‘the rights of Delaware and, in some cases, have fenced off a part of their selections and improvements, and while I was at Vinita, Ind. T., I made an effort to get an injunction against one Hannah Davis and others, who were trespassing on Delaware rights, and the chancellor to whom the matter was referred said that I would be required to prove that this land had been segregated for the use of the Delaware Indians and was a part of the 157,600 referred to in the twenty-fifth section of the Curtis law. Otherwise he should consider that a Delaware Indian could not, under the Curtis law, hold more than his individual share as a Cherokee citizen. However, the chancellor was a Cherokee citizen, which may have something to do with his views.
The Delaware-Cherokee agreement provides that “the aggregate amount of land provided for the Delaware to include their improvements, shall be guaranteed to each Delaware, etc., nor shall the continued ownership and occupancy of said land by any Delaware so registered be interfered with in any manner whatever without his consent.”
The Curtis law has many embarrassing features in it, which if enforced before the segregation of the Delaware lands, would work a great hardship on the Delaware even though the Court of Claims eventually awards them all the lands they claim. If the lands are now segregated subject to the suit, no possible harm can come to either
Delaware or Cherokee by reason of its segregation at once. Furthermore no cost ie required on the part of the Dawes Commission to make the segregation. A map has been furnished them and your department, showing the lands selected and in possession of the Delaware Indians at the time of the selection, and a description of these lands can be furnished to accompany the map, it desired. A declaration on the part of the Commission and Interior Department that the lands claimed by the Delaware Indians before the Court of Claims, as described by the map accompanying the testimony, shall be with held from allotment, pending the decision of the Court of Claims, will greatly enable the Delaware Indians to protect their individual rights before the Federal court of the Indian Territory, and will prevent the Cherokee from running over the Delaware as they have constantly been in the habit of doing.
Trusting that you will grant our earnest request, I am,
Very respectfully, yours,
R. C. ADAMS,
Representing the Delaware Indians
No. 16
Department of the Interior
Washington, May 10, 1901
Mr. R. C. Adams,
Columbian Building, Washington D.C.
SIR: The Department is in receipt of your letter, dated May 7, 1901, acknowledging receipt of departmental letter of April 5, same year, inclosing report of the Commissioner of Indian Affairs, in regard to your request on behalf of the Delaware Indians for the segregation of lands claimed by them, and again requesting that said lands be segregated.
The matter was carefully considered by the Department and you were advised of its conclusions in said letter of April 5, and no good reason appears for changing or modifying the views of the Department as stated in said letter. You are there for advised that the Department deems it inexpedient at the present time to direct the segregation of said land.
Respectfully,
THOS. RYAN, Acting Secretary
No. 17
New York, October 2, 1902
Hon. E. A. Hitchcock,
Secretary of the Interior
Sir: As counsel for the Delaware Indians in the case now pending in the Court of Claims, wherein their several controversies with the Cherokee are involved and are to be determined, I wish to call your attention to some of the issues involved in that suit.
The Delaware claim, among other things:
1. That they are entitled absolutely to 157,600 acres of land to he selected by them and to be segregated and allotted to them out of the lands of the Cherokee Nation.
The basis for this claim is that the Delaware have purchased said 157,600 acres of land from the Cherokee and paid for it at the rate of $1 per acre. They claim this land as purchasers and owners.
2. They further claim that under the agreement of 1867 they are entitled to share as Cherokee citizens in the balance of the lands of the Cherokee Nation equally with every other citizen of the Cherokee Nation.
The suit in the Court of Claims is brought under the special authority of section 25 of the Curtis Act, which provides for the submission of all controversies between the Delaware and the Cherokee to the Court of Claims for Adjudication.
The claims of the Delaware are set forth in their petition on file in the Court of Claims and also in your office. The evidence in the suit in the Court of Claims has been closed, the record printed, and the case is now ready for hearing. It will be brought on for a hearing as soon as the court can fix the time for its being heard. It is on the calendar for October, and is likely to he heard sometime during October or November.
We ask of the Department of the Interior that no distribution or allotment be made of the Cherokee lands until the final determination of the suit in the Court of Claims, unless the rights of the Delaware as claimed in their petition in the suit in the Court of Claims he in every way protected.
Such rights will not be protected unless-
1. The 157,600 acres, which the Delaware claim to own by virtue of their purchase of the same and payment therefor, be first segregated and set apart, so that no distribution or allotment of the same shall be made.
2. Unless each Delaware have the same opportunity as each Cherokee to select and segregate-subject to the future determination of the court-such lands as under the Delaware’ claims be is entitled to as a Cherokee citizen and outside of the 157,600 acres of land purchased by the Delaware.
If the Delaware were not allowed to make their selections at the same time that the Cherokee made theirs, the Delaware citizen of the Cherokee Nation would be at a disadvantage compared with the Cherokee, in that in ease the decision of the Court of Claims is in favor of the Delaware, he could only take such lands as had been left after the Cherokee had made their selection. The Delaware should have the same right to select what he considers the choicest lands as the Cherokee has. No distinction should be made between them so far as such selection is concerned.
The Delaware, by virtue of moneys heretofore paid to them by the United States in consideration of lands which they gave up at the time, have been in possession of considerable funds and have used those funds under the advice of the Secretary in improving lands which they selected and which they have made their homes in the Indian Territory. Their improvements cover far more than the 157,600 acres-in fact they cover not only the 157,600 acres, but nearly all they will receive in case the suit in the Court of Claims is decided in their favor as Cherokee citizens, outside of the 157,600 acres of land if after the segregation of the 157,600 acres purchased and paid for by the Delaware, the Cherokee are allowed to have priority in the selection of their lands, many Delaware will be ousted from their homes and from the lands on which they have spent large sums of money for improvements under the advice of your Department, and have no redress therefor.
I submit that all selections and allotments of land outside of the 157,600 acres be postponed until after the final determination of the suit in the Court of Claims, or that the Delaware should be allowed to make provisional selections-to hold good in case the suit is decided in their favor-at the same time that the Cherokee make their selections.
In this war the rights of all parties will be preserved. The Delaware will get what they are entitled to in case the suit is determined in their favor. The Cherokee will lose no rights, which they possess.
I am not asking the Department to prejudge the case in the Court of Claims in any way in our favor. Congress has referred the determination of the rights of the parties as between the Delaware and the Cherokee to that court, and it would be out of place for me to argue the same matter before your Department, which is to be argued and decided by the Court of Claims. I can only say that the claims of the Delaware, as embraced in the petition in the suit in the Court of Claims, have been formulated and drawn with great care and deliberation and that I believe they are in every respect well founded in fact and in law.
If, however, the lands should be distributed and allotted-that is, the lands outside of the 157,600 acres which the Delaware have bought and paid for-without providing for selection by the Delaware on equal terms in every way with the Cherokee, it would be a prejudgment of the case against us, and that is what we object to. Such action would tend to make the judgment of the Court of Claims, if in our favor, of no avail, or of less avail than it otherwise would be. It would be like postponing the appeal until after the execution of the criminal.
Very respectfully, yours,
WALTER S. LOGAN
No. 18
Department Of The Interior,
Washington, October 6, 1902
Mr. Walter S. Logan,
27 Williams Street, New York, N.Y.
Sir: Acknowledging receipt of your communication of the 2d instant requesting that no allotment of Cherokee lands be made until final determination of suit in the Court of Claims unless the rights of the Delaware be in every way protected, you are informed that said letter has been referred to the Dawes Commission, at Muscogee, Ind. T., for consideration and appropriate action.
By direction of the Secretary:
Respect fully,
EDWARD M. DAWSON, Chief Clerk
No. 19
Department Of The Interior, Office of Indian Affairs
November 22, 1902.
The Secretary Of The Interior
Sir: There is enclosed herewith a report from the Commission to the Five Civilized Tribes, dated October 20, 1902, relative to the requests of Walter S. Logan, attorney for the Delaware in their suit against the Cherokee Nation, contained in his letter of October 2, 1902, which was referred by the Department to the Commission for report and recommendation on October 6 last.
Mr. Logan in his communication states that he does not ask the Department to prejudge the case in favor of his clients; that Congress has referred a determination of the rights of the respective parties to the court, and that it would be out of place for him to argue the same before the Department.
In his letter Sir. Logan invites attention to the issues involved in the suit mentioned, which is now pending in the Court of Claims, gives the present status of the case, and states:
We ask of the Department of the Interior that no distribution or allotment he made of the Cherokee lands until the final determination of the snit in the Court of Claims unless the rights of the Delaware as claimed in their petition in the suit in the Court of Claims be in every way protected.
Such right will not he protected unless-
The 157,600 acres which the Delaware claim to own by virtue of their purchase of the same and payment therefor be first segregated and set apart, so that no distribution or allotment of the same shall be made.
Unless each Delaware have the same opportunity as each Cherokee to select and segregate, subject to the future determination of the court, such lands as under the Delaware’ claim he is entitled to as a Cherokee citizen and outside of the 157,600 acres of land purchased by the Delaware.
“If the Delaware were not allowed to make their selections at the same time that the Cherokee made theirs, the Delaware citizen of the Cherokee Nation would be at a disadvantage compared to the Cherokee, in that in case the decision of the Court of Claims is in favor of the Delaware he would only take such land as had been left after the Cherokee had made their selection. The Delaware should have the same right to select what he considers the choicest lands as the Cherokee has. No distinction should be made between them so far as such selection is concerned.
“The Delaware, by virtue of moneys heretofore paid to them by the United States in consideration of lands which they gave up at the time, have been in possession of considerable funds and have used those funds under the advice of the Secretary in improving lands which they selected and which they have made their homes in the Indian Territory. Their improvements cover far more than the 157,600 acres-in fact they cover not only the 157,600 acres, but nearly all they will receive in ease the suit in the Court of Claims is decided in their favor, as Cherokee citizens, outside of the 157,600 acres of land. If, after the segregation of the 157,600 acres purchased and paid for by the Delaware, the Cherokee are allowed to have priority in the selection of their lands, many Delaware will be ousted from their homes and from the lands on which they have spent large sums of money for improvements under the advice of pair Department, and have no redress therefor.
“I submit that all selections and allotments of land outside of the 157,600 acres be postponed until after the final determination of the suit in the Court of Claims, or that the Delaware should be allowed to make provisional selections-to hold good in case the suit is decided in their favor-at the same time that the Cherokee make their selections.
“In this way the rights of all parties will be preserved. The Delaware will get what they are entitled to in case the suit is determined in their favor. The Cherokee will lose no rights which they possess.”
The Commission, with reference to Mr. Logan’s request that the allotment of Cherokee lands he held “until the final determination of the suit in the Court of Claims.” invites attention to section 23 of the Cherokee agreement, which is as follows:
All Delaware Indians who are members of the Cherokee Nation shall take lands and share in the funds of the tribe, as their rights may he determined by the judgment of the Court of Claims, or by the Supreme Court if appealed, in the suit instituted therein by the Delaware against the Cherokee Nation and now pending: but if said suit be not determined before said Commission is really to begin the allotment of lands of the tribe as herein provided, the Commission shall cause to he segregated one hundred and fifty-seven thousand six hundred acres of land, including lands which have been selected and occupied by Delaware in conformity to the provisions of their agreement with the Cherokee dated April eighth, eighteen hundred and sixty-seven, such lands so to remain, subject to disposition according to such judgment as may be rendered in such cause; and said Commission shall thereupon proceed to the allotment of the remaining lands of the tribes as aforesaid. Said Commission shall, when final judgment is rendered, allot lands to such Delaware in conformity to the terms of the judgment and their individual rights thereunder.
“Nothing in this act shall in any manner impair the rights of either party to said contract as the same may be finally determined by the court, or shall interfere with the holdings of the Delaware under their contract with the Cherokee of April eighth, eighteen hundred and sixty-seven, until their rights under said contract are determined by the courts in their suit now pending against the Cherokee, and said suits shall be advanced on the dockets of said courts and determined at the earliest time practicable,” and takes the position that said section clearly shows that it was not the intention of Congress to permit the allotment work to be delayed because of the fact that said suit was pending in the Court of Claims.
It states that the representations made by Mr. Logan carry with them the certainty that if the decision of the court should be adverse to the Delaware in any particular a request for further delay of the allotment work would be made by the Delaware on the ground that their rights had not yet been adjudicated by the Supreme Court, to which an appeal from the Court of Claims will be; that should the request be granted and the decision of the Court of Claims be adverse to the contention of the Delaware, the Delaware would be entitled to have the allotment work further delayed on the ground that they expected a decision in their favor of the Supreme Court.
The Commission gives it as its opinion that the statute above quoted does not contemplate an allotment to each Delaware of an amount of land equal to the per capita share of each Cherokee “in addition to the allotment which such Delaware will receive from the 157,600 acres to be segregated pending the determination of said suit, and that to adopt the contrary view in proceeding with the Cherokee allotment would place at a serious disadvantage innumerable Cherokee, who unlike the Delaware, have neither improved lands nor homes of their own.”
The Commission states that the 157,600 acres of land to be segregated for the Delaware are to include lands heretofore selected, occupied, and improved by them and upon which they are now living, and invites attention to the following quotation from the petition of the Delaware in the suit now pending in the Court of Claims:
That thereupon the said Delaware selected the said 157,600 acres of land from the said Cherokee Reservation east of line 96°, not theretofore selected or in possession of other parties, entered into the occupancy and possession of the same and made extensive and valuable improvements thereon, and they, their children, descendants, heirs at law, and personal representatives, have continued to occupy and possess the said lands and the said improvements and have continued to make extensive and valuable improvements thereon and to reside thereon down to the present time.”
The Commission holds that it has no authority under the law to make allotments to Delaware of land not embraced in the segregation required by the agreement; that the allotments to the Cherokee should begin at the earliest possible date; that upon the application of any Delaware citizen there should be reserved from allotment until the final determination of the suit mentioned, such lands not embraced in such segregation not exceeding an amount equal in value to 110 acres of average allotable land of the Cherokee Nation “as contain permanent and valuable improvements owned by such Delaware citizen.” The Commission is of time opinion that if the course outlined by it is pursued, the rights of the Delaware will he fully protected.
As this office understands the contention of the Delaware, they claim they are not only entitled to time 157,600 acres, but are also entitled to share equally with the other citizens of the Cherokee Nation in time remaining lands.
Section 23 of the Cherokee agreement specifically declares that if the suit “be not determined before said Commission is ready to begin the allotment of lands of the tribe as provided herein, the Commission shall cause to be segregated 157,600 acres of land, including the lands which have been selected and occupied by time Delaware,” and directs that the Commission “shall thereupon proceed to the allotment of the remaining lands of the tribe as aforesaid.”
The office agrees with the Commission that it was not the intention of Congress to delay the allotment work in the Cherokee Nation until the suit between the Delaware and the Cherokee shall have been finally determined, and it therefore respectfully recommends that the Commission’s report be approved and that it be instructed to proceed in accordance therewith.
Very respectfully, your obedient servant,
W. A. JONES, Commissioner
No. 20
Muscogee, Ind. T., October 20, 1902
The Secretary of the Interior
Sir: Receipt is hereby acknowledged of a communication from Walter S. Logan, dated October 2, 1902, relating to allotments of land in the Cherokee Nation to the Delaware Indians, which was referred by the Department to this Commission for consideration, report, and recommendation on October 6, 1902.
After calling attention to the issues involved in the suit of the Delaware Indians against the Cherokee Nation, now pending in the Court of Claims, and giving the present status of the ease, Mr. Logan states:
“We ask of the Department of the Interior that no distribution or allotment be made of the Cherokee lands until the final determination of the suit in the Court of Claims, unless the rights of the Delaware as claimed in their petition in the suit in the Court of Claims lie in every way protected.
Such rights will not be protected unless-
1. The 157,000 acres which the Delaware claim to own by virtue of their purchase of the same and payment therefor be first segregated and set apart, so that no distribution or allotment of the same shall be made.
2. Unless each Delaware have the same opportunity as each Cherokee to select and segregate-subject to the future determination of the court-such lands as tinder the Delaware’ claims he is entitled to as a Cherokee citizen and outside of the 157,600 acres of land purchased by the Delaware.
“If the Delaware were not allowed to make their selections at the same tune that the Cherokee made theirs, the Delaware citizen of the Cherokee Nation would he at a disadvantage compared with the Cherokee, in that in case the decision of the Court of Claims is in favor of the Delaware he could only take such lands as had been left after the Cherokee had made their selection. The Delaware should have the same right to select what he considers the choicest lands as the Cherokee has. No distinction should be made between them so far as such selection is concerned.
The Delaware, by virtue of moneys heretofore paid to them by the United States in consideration of lands which they gave up at the time, have been in possession of considerable funds and have used those funds under the advice of the Secretary in improving lands which they selected and which they have made their homes in the Indian Territory. Their improvements cover far more than the 157,600 acres. In fact, they cover not only the 157,600 acres, but nearly all they twill receive in case the suit in the Court of Claims is decided in their favor as Cherokee citizens, outside of the 157,600 acres of land. If, after the segregation of the 157,600 acres purchased and paid for by the Delaware, the Cherokee are allowed to have priority in the selection of their lands, many Delaware will be ousted from their homes and from the lands on which they have spent large sums of money for improvements, under the advice of your Department, and have no redress therefor.
“I submit that all selections and allotments of land outside of the 157,600 acres be postponed until after the final determination of the suit in the Court of Claims, or that the Delaware should be allowed to make provisional selections-to hold good in case the suit is decided in their favor-at the same time that the Cherokee make their selections.
“In this way the rights of all parties will be preserved. The Delaware will get what they are entitled to in ease the suit is determined in their favor; the Cherokee will lose no rights which they possess.”
With reference to the proposition to delay the allotment of Cherokee lands “until the final determination of the suit in the Court of Claims,” attention is invited to section 23 of the act of Congress approved July 1, 1002 (Public-No. 241), which is as follows:
“SEC. 23. All Delaware Indians who are monitors of the Cherokee Nation shall take lands and share in the funds of the tribe, as their rights may be determined ire the judgment of the Court of Claims, or by the Supreme Court if appealed, in the suit instituted therein by the Delaware against the Cherokee Nation, and now pending; but if said suit be not determined before said Commission is ready to begin the allotment of lands of the tribe as herein provided, the Commission shall cause to be segregated one hundred and fifty-seven thousand six hundred acres of land, including lands which have been selected and occupied by Delaware in conformity to the provisions of their agreement with the Cherokee dated April eighth, eighteen hundred and sixty-seven, such lands so to remain, subject to disposition according to such judgment as may be rendered in said cause; and said Commission shall thereupon proceed to the allotment of the remaining lands of the tribe as aforesaid. Said Commission shall, when final judgment is rendered, allot lands to such Delaware in conformity to the terms of the judgment and their individual rights thereunder. Nothing in this act shall in any manner impair the rights of either party to said contract as the same may be finally determined by the court, or shall interfere with the holdings of the Delaware under their contract with the Cherokee of April eighth, eighteen hundred and sixty-seven, until their rights under said contract are determined by the courts in their suit now pending against the Cherokee, and said suit shall be advanced on the dockets of said courts and determined at the earliest time practicable.”
The language of said section clearly shows that the allotment of Cherokee lands was not to be delayed by the suit now pending in the Court of Claims, and the representations made by Mr. Logan carry with them the certainty that if the decision of said court should be adverse to the Delaware in any particular a further request for delay in allotment would he made by the Delaware on the ground that their rights had not yet been adjudicated by the Supreme Court, to which an appeal from the Court of Claims will lie.
On the other hand, should the allotment be delayed on the request of the Delaware until the case has been decided by the Court of Claims, the Cherokee Nation, should the decision of said court be adverse to it, would be entitled to have the allotment further delayed on its request in the expectation that the decision of the Supreme Court would be in its favor.
The Commission is of the opinion that the statute above quoted does not contemplate an allotment to each Delaware of an amount of land equal to the per capita share of each Cherokee in addition to the allotment which such Delaware will receive from the 157,600 acres to be segregated pending the determination of said suit, and that to adopt the contrary view in proceeding with the Cherokee allotment would place at a serious disadvantage innumerable Cherokee who, unlike the Delaware, have neither improved lands nor homes of their own.
The 157,600 acres of land to be segregated for the Delaware arc to include lands heretofore selected, occupied, and improved by them, and upon which all of said Delaware are living, as is set forth on page 10 of their petition in the suit now pending in the Court of Claims, as follows:
That thereupon the said Delaware selected the said 157, 600 acres of laud from the said Cherokee reservation east of line 96°, not theretofore selected or in possession of other parties, entered into the occupancy and possession of the same, and made extensive and valuable improvements thereon, and they, their children, descendants, heirs at law, and personal representatives have continued to occupy and possess the said lands mill the said improvements, and have continued to make extensive and valuable improvements thereon and to reside thereon down to the present time,”
Holding to the opinion that the Commission is without authority of law to make allotments to Delaware of the land not embraced in the segregation provided for in the statute above quoted, and that the allotments to Cherokee should begin at the earliest date possible, the Commission believes, however, that upon the application of any Delaware citizen there should be reserved from allotment until the final determination of the suit of the Delaware against the Cherokee only such lands not embraced in said segregation and not exceeding land equal in value to 110 acres of average allotable lands of the Cherokee Nation as contains permanent and valuable improvements owned by such Delaware citizen.
Such a course would, in the opinion of the Commission, fully protect the rights of all I Delaware in and to all improved lands held by them on August 7, 1902, the date of the ratification of the act of Congress approved July 1, 1902 (Public-No. 241), and would not interfere with the selection of allotments from the unimproved public domain by Cherokee citizens.
Mr. Logan’s letter of October 2, 1002, is herewith enclosed.
Respectfully submitted.
TAMS. BIXBY, Acting Chairman
T.B. NEEDLES, Commissioner
C.R. Breckinridge, Commissioner
(Through the Commissioner of Indian Affairs.)