Letters, Telegrams and Petitions 31-40

No. 31

Department of the Interior,
Commission to the Five Civilized Tribes,
Muscogee, Ind. T., March 17, 1903

The Secretary of the Interior

Sir: We have the honor to respectfully submit herewith the following statement of the work of the Commission to the Five Civilized Tribes for the month of February, 1903:

Cherokee Allotment Division

One thousand three hundred and fifty-eight tickets of admission to the Cherokee land office were issued, making a total of 5,486 issued since the office was opened January 1, 1903. Approximately 2,000 have been called, but only 468 responded, making a total of 910 tickets taken up since January 1.

Three hundred and eighty-eight citizenship certificates embracing 1,046 applicants, and 168 reservation certificates, embracing 353 applicants, were issued.

Applications for 1,673 allotments and homesteads were received during February. Of this number 1,193 were approved. The approval of 372 was withheld because the enrollment of the applicants as citizens of the Cherokee Nation had not been finally approved by the Secretary of the Interior; 51 because the land applied for had already been allotted; 38 because the land applied for was embraced in the 157,600 acres of land which the Commission caused to be segregated for the Delaware Indians, pending the determination of the suit instituted in the Court of Claims, and in the Supreme Court if appealed, by the Delaware against the Cherokee Nation, and 9 because the land applied for was embraced in tentative reservations heretofore made for certain towns in the Cherokee Nation.

During the month there were approved by the Secretary of the Interior schedules in which were embraced the names of 206 persons whose applications for allotments had previously been received. Thereupon the applications were made regular. Twenty-two are still being held, as the land for which the applicants apply has already been allotted to other citizens and for various other purposes.

Seven hundred and fifty certificates of allotment and 500 homestead certificates have been written and await distribution.

Owing to the great amount of rain in this section of the nation in the past two months the roads are quite impassable, and it is almost impossible for those persons who have to travel overland to appear at the land office and make their selection of allotments.

Almost all of the applicants who have appeared to date are those who live within easy reach of the railroads leading to Vinita. But few of the full bloods have appeared. The majority of them reside north and east of Tahlequah and it has been impossible for them to cross Grand River, Which has been extremely high during the entire month.

Had the required number of applicants appeared it is believed that not less than 2,000 allotments would have been made during the month just ended.

The progress of the work in the allotment contest division during the month of February and the condition of contested allotment cases at the close of the month as indicated by the records of that division are shown by the following detailed statement:

Cherokee Nation

Respectfully submitted.

Tams Bixby, Chairman.
T. B. Needles, Commissioner.
C. R. Breckinridge, Commissioner.
W. E. Stanley, Commissioner.
(Through the Commissioner of Indian Affairs.)

No. 32

Department of the Interior,
Washington, March 30, 1903.

Commission to the Five Civilized Tribes,

Muscogee, Ind. T.

Gentlemen: The Department is in receipt of your monthly report, dated March 17, 1903, detailing the work done by your Commission during the month of February, 1903, and you are informed that the same has been examined and is hereby approved. A copy of the report of the Acting Commissioner of Indian Affairs, in which he gives the number of citizenship cases that are pending in the Indian Office, is enclosed herewith.

Respectfully,
THOS. RYAN, Acting Secretary

No. 33

Vinita, Ind. T., April 18, 1903.

Hon. E. A. Hitchcock,
Secretary of the Interior, Washington, D. C.

Sir: On January 1, 1903, a land office was established at Vinita, in the Cherokee Nation, and about 6,000 allotments have been partly made, as, owing to the classification and the appraisement of the lands more nearly contiguous to Vinita, it is impossible to select an entire allotment out of such lands. This 6,000 represents only about one-fourth of the number who desire to file at this place. Admittance cards have been issued to about 6,000 heads of families, representing some 24,000 allottees. Now it is the expressed intention of the Commission to move the present land office from Vinita to Tahlequah on May 1, 1903, which move will entail a great hardship on about 18,000 allottees who live much nearer this place and have expected to file here, and have been unable to do so owing to the fact that only 60 to 100 filings can be made per day.

A great number of full-bloods from the eastern portion of the nation have presented themselves at the land office, and in a great many instances the citizens of Vinita and the surrounding country have, in order to enable them to file as soon as possible, refrained from presenting themselves at the land office, so that there are hundreds of people in this vicinity who have not filed. In my opinion (and I am trying to act for the best interests of the whole Cherokee people), it will be very unjust to force these citizens of the northern portion of the Cherokee Nation to go to Tahlequah, which is situated from 50 to 150 miles from their homes. By reference to the enclosed map it will be seen that Vinita is almost the geographical center of the northern portion of the Cherokee Nation, and is the center of the prairie and more populous portion. It will also appear that four-fifths of the agricultural lands of the Cherokee Nation are located nearer Vinita than to Tahlequah, with convenient railroad connection.

It is a ruling of the Commission that parties selecting lands shall personally inspect the lands before filing, so that nearly all of those coming from the eastern portion of the nation to the western portion to select their allotments would find it less expensive and more convenient to file at Vinita. Certainly those who live and allot in the western and northern portions of the nation should not be compelled to go to Tahlequah to file. If, then, these people are to be accommodated the office should not be removed at the present time. It is located in a commodious and well adapted brick building, and with ample fireproof vaults, and from personal knowledge of the people and the country as well as daily observation of the progress of the work, I am sure the office should not be moved till these people shall have had the opportunity to file at home. I recognize that the land office should be removed to Tahlequah at a later date in order that the people of the southern and eastern portion of the nation may be accommodated at home, and I respectfully ask that as soon as the work is practically completed here that this be done.

On the 16th of the present month I visited the headquarters of the Commission at Muscogee in order to urge in person upon the Commission what it appears to me would the for the best interest of the Cherokee people as regards the location of the land offices. Only one member of the Commission was at Muscogee at the time, and therefore I was not able to get an expression from the Commission, but I am satisfied that the removal of the land office at the present time to Tahlequah would not be for the best interest of the Cherokee Nation, and I respectfully ask that this be not done till the people in the northern and western portions shall have had an opportunity to complete their filings.

Very respectfully,
T. M. BUFFINGTON, Principal Chief.

No. 34

Vinita, Ind. T., April 20, 1903.

To Secretary of the Interior, Washington, D. C:

Have this day mailed you letter giving some of the more potent reasons for continuing land office at Vinita for several months.

T. M. BUFFINGTON, Principal Chief.

No. 35

Department of the Interior,
Washington, April 25, 1903.

Hon. T. M. Buffington,
Principal Chief, Cherokee Nation, Vinita, Ind. T.

Sir: Receipt is hereby acknowledged of your letter of the 18th instant, requesting that the land office at Vinita be continued there until the northern and western Cherokees have an opportunity to complete their filings, and you are advised that the matter will be duly considered.

Respectfully,
THOS. RYAN, Acting Secretary.

No. 36

Tahlequah, Ind. T., April 23, 1903.

The Secretary of the Interior, Washington, D. C.

Sir: Some time last fall, before the Commission to the Five Civilized Tribes decided upon a location for the Cherokee land office, the town of Tahlequah, being the capital of the Cherokee Nation, centrally located, and right in the midst of the poorer class of people of the Cherokee Nation, particularly the full bloods, and having the greatest population of Cherokee Citizen inhabitants of any town in the Cherokee Nation, made an effort to yet the Commission to located the land office at Tahlequah, Ind. T.

Other towns at that time were applicants for the location of this office, and considerable rivalry manifested itself between the towns presenting their claims to the Commission, and among them the town of Vinita asked that the office be located at that place.

After much consideration by the Commission it was decided, with the consent of the representatives of the town of Tahlequah, and particularly and emphatically agreed to by the representatives of the town of Vinita, that the Cherokee land office should be opened at Vinita on January 1, 1903, and continued there until May 1, 1903, when the same should be removed to the town of Tahlequah; and the notices published prior to January 1, 1903, by the Commissioners were to that effect, so that all persons had due notice of the same.

The land office, in accordance with these notices, was opened at Vinita on the 1st of January, 1903, but under the notice will be removed to Tahlequah on the 1st day of May.

I have understood that strong efforts are being made to induce the Secretary of the Interior to overrule the decision of the Commission to the Five Civilized Tribes and compel the Commission to retain the land office at Vinita for a longer period of time. Behind this move must be the citizens and residents of the town of Vinita, which is indeed bad faith upon their part, because they emphatically agreed with the Commission last fall that the division of time was fair, and that they would not ask for a retention of the office at their town for a longer time than May 1, 1903.

Representations will no doubt be made that parties in the vicinity of Vinita have not had an opportunity to file upon their lands, and therefore it will he a great hardship on these people to have the land office removed before such opportunity is given.

This is not true. Every citizen in the town of Vinita or vicinity who desired to file upon his land has had abundant opportunity to do so. No person who presented himself for a filing number during the two months of January and February has failed to file, who presented himself for that purpose before the Commission, and you will well know that there was no person living in the town of Vinita or the vicinity thereof who could not have gotten to the Commission and asked for a number during those two months. It is true some of those parties have not filed, but it is not because there was not an abundant opportunity. The truth of it is, that a great many people who live up in that country have not cared to file. They are excessive land-holders, and, of course, if they make a selection of a certain tract of land before their excessive lands are disposed of, it would leave the excessive lands open to be taken by the poorer class of people, whereas if they can put their filings off a year or two it will permit them to get rents from this land during that length of time.

The town of Vinita is within 30 miles of the Kansas line, and the Cherokee Nation is about 150 miles long, north and south. The town of Tahlequah is much more centrally located, it being about the center of the nation, north and south and east and west. It is about centrally located as far as the Cherokee citizens are concerned, also. It has a larger number of citizen inhabitants than any other town in the Cherokee Nation; it has plenty of running water through it, where the people during the spring and summer can camp and make themselves comfortable, and there is no doubt but that Tahlequah would be much more convenient for a great majority of the people of the Cherokee Nation than would Vinita.

Again, at Vinita a number of contests have been instituted, which have been set for hearing at Tahlequah in May; and in fact all notices given by the Commission, of every kind and character, for anything to be done after May 1 have been set at Tahlequah, and if this removal of the Commission is canceled, all notices will have to be given anew.

When the agreement was made last fall and the notice published the citizens of the town of Tahlequah were required to build a building at a cost of $10,000 for the Commission. This has been done and is now completed and ready to be occupied by the Commission. Because of the rain and bad weather during the past winter, and because the work had to be rushed to completion, the expense was far greater than it would have been had the work not been required prior to May 1, 1903.

I have no hesitancy in saying that it would be a great injustice to the Cherokee people to retain the office longer at Vinita, Ind. T., and that the great body of the people would be subserved by the order of the Commission being complied with and the Commission permitted to remove to Tahlequah at the time advertised, namely, May 1, 1903.

I only write this letter because it has come to me that efforts are being made by the residents of the town of Vinita to influence Senators and Congressmen to induce the Secretary of the Interior to have the Commission rescind their order and to remain at Vinita longer than May 1, 1903.

Respectfully, yours, W. W. HASTINGS,
Attorney for the Cherokee Nation

No. 37

Department of the Interior,
Commission to the Five Civilized Tribes
Muscogee, Ind. T., May 1, 1903

Hon. Ethan A. Hitchcock,
Lindell Hotel, St. Louis, Mo.

Sir: The Commission is in receipt of a telegram from Mr. W. Scott Smith, private secretary, of even date herewith, which reads as follows:

“Morning papers report that you closed Vinita office last night. Secretary desires to know if this is so and what is the situation.”

The following reply by telegraph to Mr. Smith has been made this day:

“Referring your telegram even date. Commission closed Cherokee land office, Vinita, last night, and moved same today to Tahlequah. Full explanation follows by mail.”

Confirming said reply I have the honor to report that on October 1, 1902, the Com-mission made public announcement that the Cherokee land office would be opened at Vinita, Ind. T., on January 1, 1903, and that:

“Said office will be maintained at Vinita, Ind. T., until April 30, 1903, and then removed to Tahlequah, Ind. T., where said office will be opened May 4, 1903, and maintained indefinitely.”

Said announcement was given wide publicity through the public press, and by mail to hundreds of prominent members of the tribe, and displayed in the post-offices, stores, and other public places throughout the Cherokee Nation.

Tahlequah is situated in the heart of the districts occupied by the full-blood Cherokees; is the only town in the nation which the majority of them are accustomed to visiting, and the only place offering suitable advantages and an adequate supply of water for their camps.

No question as to the advisability of the Commission keeping this appointment, which the full-bloods have looked forward to for the last six months, occurred until within the past few days. This question was raised only by citizens of the town of Vinita. No request for the retention of the land office at Vinita for a longer period than that advertised was received from any members of the tribe desiring to take allotments of land. On the contrary, the only expression of opinion on the subject by prospective allottees was from two hundred or more of such citizens, who petitioned that the appointment made by the Commission at Tahlequah be kept as originally announced.

Under date of April 27, 1903, the Acting Secretary of the Interior telegraphed the Commission as follows:

“Suggest Commission, if practicable, delay removal of land office from Vinita until arrival of Secretary at Muscogee, approximately May 7. He wishes to confer with you in regard to it.”

On the same date, referring to the telegram of the Acting Secretary, the following messages were telegraphed to the Department:

“Telegram of this date received. All arrangements made to keep Tahlequah appointment May 1, information of which is widely disseminated. Extremely important to keep this appointment in full-blood region and to press the work at this time among them. Much better to return to western part of the nation at a later date if necessity therefor shall appear as work progresses. Any interruption now would greatly embarrass the Commission and the Government work.

“BIXBY, Chairman

“I strongly concur in telegram of Chairman Bixby of this date as to importance of keeping promptly the Tahlequah appointment. Perfectly easy to return to western part of nation at later date if we find it desirable to do so, as we likely shall.

C. R. BRECKINRIDGE,
“Commissioner in Charge of Cherokee Allotment.”

On the following date, April 28, 1903, the Acting Secretary telegraphed the chairman of the Commission as follows:

“Referring to your telegram of yesterday. Department will not interfere in Tahlequah appointment.”

In conformity to the announcement of the Commission of October 1, 1902, above referred to, the land office at Vinita was closed on the evening of April 30, 1903, and the records of the office shipped to Tahlequah, Ind. T., where preparations are now being made to open said office on the morning of May 4, 1903.

Respectfully,
TAMS BIXBY, Chairman

No. 38

Department of the Interior,
Washington, May 6, 1903

Mr. W. W. Hastings,
Attorney for Cherokee Nation, Tahlequah, Ind. T.

Sir: Replying to your letter dated April 23 last, you are informed that the Department decided not to interfere in the matter of the removal by the Commission to the Five Civilized Tribes of the land office from Vinita to Tahlequah on the 1st instant.

Respectfully,
THOS. RYAN, Acting Secretary

No. 39

April 18, 1903.
The Secretary of the Interior and Commissioner of Indian Affairs.

Gentlemen: When Congress passed the act entitled “An act for the protection of the people of the Indian Territory, and for other purposes,” which was approved June 28, 1898, and known as the “Curtis Act,” provision was made by section 25 thereof for the protection of the rights of the Delaware Indians in the Cherokee Nation to the effect that before any allotments of lands should be made in the Cherokee Nation there should be segregated there from, by the Commission to the Five Civilized Tribes, in separate allotments or otherwise, the 157,600 acres purchased by the Delaware from the Cherokees under the agreement of April 8, 1867. Following this was a provision referring to the Court of Claims and the Supreme Court of the United States the question of the rights of the Delaware to these lands and to other allotments and their interest in the Cherokee tribal lands and funds.

No action was taken by the Commission to comply with this provision of the Curtis Act until the passage of the act of Congress approved July 1, 1902, which was ratified by the Cherokees at a general election August 7, 1902, which act also provided, in section 23 thereof, as follows:

“Sec. 23. 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 be 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 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 the Delaware in conformity to the provisions of their agreement with the Cherokees dated April eighth, eighteen hundred and sixty-seven, said lands so to remain subject to disposition according to such judgment as may be rendered in said cause, and said Commission shall there-upon 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 Cherokees 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 Cherokees, and said suit shall be advanced on the dockets of said courts and determined at the earliest time practicable.”

In anticipation of the allotment of the lands of the Cherokee Nation, and in conformity with the provisions of said section 23 above quoted, the Delaware Indians, through me as their authorized attorney in fact and representative, filed, in December, 1902, with the Commission to the Five Civilized Tribes a list of selections of land, aggregating about 157,600 acres, as and for their selections, to be segregated, as in said section provided. Certain minor errors being found in some of these descriptions, an amended and corrected list was forwarded to said Commission, at its request, in January, 1903, which said list of selections contained the description of 157,600 acres of land, was received, accepted and placed on file by said Commission as and for the Delaware lands segregated under the authority of said act.

On February 2, 1903, a decree was passed by the Court of Claims in the case of the Delaware Indians against the Cherokee Nation, and on March 19 an appeal was filed in the Supreme Court of the United States, where said case is now pending.

I desire to submit that the Commission to the Five Civilized Tribes, having exercised the authority vested in them by the act of July 1, 1902, above referred to, in the segregation of the Delaware lands, their authority and jurisdiction over the lands thus segregated is exhausted until the final determination of the suit of the Delaware against the Cherokees by the Supreme Court of the United States, and they have no further power to do any other act with reference to said lands. The act in question having provided that this segregation being made, the Commission should proceed to allot the remaining lands of the Cherokee tribe, they had no more power to receive any application for or to perform any act concerning any of the lands embraced within the Delaware selections than if these lands had been within the Osage Reservation in Oklahoma or had never been any part of the lands of the Cherokee tribe.

During the last week I have been in receipt of many letters and telegrams from Delaware Indians residing in the Indian Territory and occupying parts of the segregated lands above mentioned, who have received notification from the Commission that certain Cherokees have made filings upon lands occupied by said Delaware and within the segregated lands herein referred to, and notifying such Delaware to appear and file contests.

This action, which seems to indicate that the Commission does not intend to treat the segregated lands as withdrawn from selection by Cherokees, would, if carried out, effect a nullification of the act of Congress referred to and deprive the Delaware of all the protection for which Congress inserted the clause above referred to in the act of July 1, 1902. If such action could be sustained as to one or several selections it could be sustained as to all, and there would be no segregated land. This would deprive the Delaware of their property rights, for they can not take their allotments at this time and will not be allowed to do so until the case now pending in the Supreme Court of the United States shall have been finally determined, which, as I am informed by the clerk of that court, will probably not be for a year or more.

The Delaware Indians, acting under the advice of the Department of the Interior and the Indian agent, Leo E. Bennett, some years ago spent almost all their tribal funds, which amounted to about $1,000,000, in the improvement of their homes in the Cherokee Nation, embraced in the segregation referred to. They have always been loyal to the United States, have been law-abiding and peaceful in the Cherokee Nation, and now deserve the protection of the Government to the fullest extent, and it was the intention of Congress to extend this protection and make it fully effective. But if the law is to be interpreted as seems now to be the purpose of the Commission, it will become inoperative and valueless and might as well never have been enacted.

In view of this situation I desire to appeal to you to take such action in this matter as you may deem expedient and necessary to protect the rights of my people and give due force and vitality to the act of Congress which provided for the segregation of these lands, in order that they might remain undisturbed till the final issue of the Delaware-Cherokee suit.

Very respectfully,
Richard C. Adams

No. 40

Department of the Interior,
Office of Indian Affairs,
Washington, April 28, 1903.

The Secretary of the Interior

Sir: Referring to the office report of November 22, 1902, to Department letter of November 25, 1902, to office report of March 27, 1900, and to Department letter of March 30, 1903, there is enclosed herewith a communication from Mr. Richard C. Adams, dated April 18, 1903, relative to the segregation of Delaware lands in the Cherokee Nation, Ind. T., in accordance with the provisions of the Cherokee agreement.

Mr. Adams invites attention to the provision of section 25 of the Curtis Act, which authorized the Delaware residing in the Cherokee Nation to bring suit in the Court of Claims against the Cherokee Nation for the purpose of determining the rights of the Delaware in and to the lands and funds of said nation, under the Cherokee-Delaware agreement of April 8, 1867, and declares that “before any allotment shall be made from said lands in the Cherokee Nation there shall be segregated there from by the Commission heretofore mentioned, in separate allotments, or otherwise, the 157,600 acres purchased by the Delaware tribe of Indians from the Cherokee Nation” under the agreement of April 8, 1867.

He states that no action was taken by the Commission to the Five Civilized Tribes, as required by the provisions of section 25 of the Curtis Act, until after the ratification of the agreement, and invites attention to section 23 of said agreement, which is as follows:

“Sec. 23. 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 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 Cherokees 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 Cherokees 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 Cherokees, and said suit shall be advanced on the dockets of said courts and determined at the earliest time practicable.”

He states that in anticipation of the allotment of the lands of the Cherokee Nation in conformity with the provisions of section 23, the Delaware Indians through him, as their authorized attorney in fact and representative, tiled with the Commission in December last a list of selections of land, aggregating about 157,600 acres as Delaware selection to be segregated in accordance with section 23 of the agreement; that certain minor errors were found in some of the descriptions; that a corrected list was forwarded to the Commission at its request in January, 1903, which said list contained the descriptions of 157,600 acres of land, and “was received, accepted, and placed on file by said Commission, as and for the Delaware lands segregated under the authority of said act.”

He further states that on February 2 last a decree was entered by the Court of Claims in the case of the Delaware v. The Cherokees; that on March 19, 1903, an appeal was taken to the Supreme Court from the decision of the Court of Claims, and that said case is now pending in the Supreme Court of the United States; and he takes the position that the Commission to the Five Civilized Tribes, having exercised the authority vested in it by the Cherokee agreement in segregating the Delaware lands, has no authority or jurisdiction over the lands so segregated until final determination of the suit of the Delaware v. The Cherokees by the Supreme Court of the United States, and that it has “no further power to do any other act with reference to said lands.”

He then states that the agreement provides that after said segregation shall have been made the Commission shall proceed to allot the remaining lands of the Cherokee tribe, and he concludes that the Commission has “no more power to receive any application for or to perform any act concerning any of the lands embraced within the Delaware selections than if these lands had been within the Osage Reservation, in Oklahoma, or had never been any part of the lands of the Cherokee tribe.”

Mr. Adams states that recently he has received many letters and telegrams from Delaware Indians residing in the Indian Territory and occupying parts of the segregated lands, stating that they have been notified by the Commission to the Five Civilized Tribes that certain Cherokees have filed upon the lands occupied by the Delaware referred to, which lands are “within the segregated lands herein referred to, and notifying such Delaware to appear and file contests;” that this action seems to indicate that the Commission does not intend to treat the segregated lands as with-drawn from selection by the Cherokees; that if such action is carried out it will, in effect, nullify section 23 of the Cherokee agreement and deprive the Delaware of the protection which Congress intended to guarantee them by the provisions of said section; that if said action should be sustained as to one or several selections it could be sustained as to all, and there would therefore be no segregated lands; that such action would deprive the Delaware of their property rights, for the reason that they can not take their allotments at this time, and will not be allowed to do so until the case pending before the Supreme Court shall have been finally determined, and that he has been informed by the clerk of the Supreme Court that the case will probably not be disposed of for a year or more.

Mr. Adams then states that the Delaware Indians, acting under the advice of the Department, and the then Indian agent, Mr. Leo F. Bennett, spent almost all their tribal funds, which amounted to about $1,000,000, in the improvement of their homes in the Cherokee Nation embraced in the segregation referred to by him; that they have been loyal to the United States; have been law-abiding and peaceful in the Cherokee Nation; that they deserve the protection of the Government to the fullest extent; that it was the intention of Congress to extend this protection and make it fully effective; that if the law is interpreted as it seems to have been interpreted by the Commission it will become inoperative, and be appeals to the Department to take such action in the premises as may be expedient and necessary to protect the interests of the Delaware people, and give due force and validity to section 23 of the agreement.

The Commission in its report of October 20 last, relative to the request of Mr. Walter S. Logan, attorney for the Delaware in their suit against the Cherokees, gave it as its opinion that the law does not contemplate that each Delaware shall have an allotment of land equal to the per capita share of each Cherokee, “in addition to the allotment each such Delaware shall 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 Cherokees who, unlike the Delaware, have neither improved lands nor homes of their own.”

It was stated by the Commission that the lands to be segregated for the Delaware should include that “occupied and improved by them, and upon which they are now living.”

In said report the Commission held that it had no authority under the law to make allotments for Delaware of land not embraced in the segregation required by the agreement; that the allotments to the Cherokees should begin at the earliest possible date; that upon the application of any Delaware citizen there should be reserved from allotment until the determination of the Delaware-Cherokee suit such lands not embraced in the segregation, and not exceeding an amount equal to 110 acres of the average allotable land of the Cherokee Nation, “as contain permanent and valuable improvements owned by such Delaware citizen.”

The Office concurred in the views expressed by the Commission, and recommended the approval of the Commission’s report.

November 29, 1902, the Department concurred in the views expressed by the Com-mission and this Office, and so advised Mr. Logan.

In the Commission’s report of March 17, 1903, relative to the work performed during the month of February, 1903, which was transmitted with office report of March 27 last, it is stated, under the heading “Cherokee allotment division” (see p. 21), that “application for 1,673 allotments and homesteads were received during February. The approval of 372 was withheld because the enrollment of the applicants as citizens of the Cherokee Nation had not been finally approved by the Secretary of the Interior, 38 because the land applied for was embraced in the 157,600 acres of land which the Commission caused to be segregated for the Delaware Indians pending the determination of the suit instituted in the Court of Claims, and in the Supreme Court if appealed, by the Delaware against the Cherokee Nation.”

From said monthly report it would appear, as stated by Mr. Adams in his communication, that the Commission to the Five Civilized Tribes has, in accordance with the provisions of section 23 of the Cherokee agreement, segregated the 157,600 acres hereinbefore mentioned.

The Commission’s report of March 17, 1903, was approved by the Department on March 31 last. If the Commission had theretofore segregated said land, and from the correspondence it seems it had, the Department’s approval of said report is, in effect, the approval of said segregation.

Section 23 of the Cherokee agreement specifically declares that the 157,600 acres purchased by the Delaware from the Cherokees shall be segregated from allotment if the suit hereinbefore mentioned has not been determined when the Commission shall be ready to commence making allotments in the Cherokee Nation, “so to remain subject to disposition according to such judgment as may be rendered in said case.” (Italics mine.) ATC

Section 6 of the Cherokee agreement declares that the word “select” and its various modifications shall be held to mean “the formal application at the land office to be established by the Dawes Commission for the Cherokee Nation for particular tracts of laud.”

When the Commission was ready to commence the allotment of the Cherokee lands, in as much as the Delaware-Cherokee suit had not been finally determined, it became its duty to segregate the laud claimed by the Delaware. This duty was obligatory and not discretionary. The records show that the Commission did segregate said land, and the lands so segregated are not susceptible of allotment at this time, and will not be, under the law as it exists, until the pending suit shall have been finally decided.

The Office does not believe that the Commission has any authority to allot any of the lands segregated during the pendency of said suit to Cherokee citizens, whether of Delaware blood or otherwise. If any citizen of the Cherokee Nation applies to the Commission for an allotment of any of the lands segregated, his application the Office believes, should be rejected. The land is not susceptible of allotment, and if the Commission were to receive and file an application, and even mark it “rejected,” it is possible that it would complicate matters, on account of the provisions of section 6 of the agreement, although it would seem that under the law no action of the Commission, or of any citizen of the nation, can in any way affect the segregated land until the determination of the Delaware-Cherokee suit. Cherokee citizens have the right to select any lands susceptible of allotment not segregated or in the possession of some citizen of the nation as his pro rata share of Cherokee lands. If the Commission permits Cherokee citizens to select any part of the segregated land and issues allotment certificates therefor, or even if it accepts the application, such action is almost sure to complicate matters, especially if the suit is finally determined in favor of the Delaware. Furthermore, it would seem from the law that the Commission has no jurisdiction at this time of the segregated lands, so far as allotting them is concerned, and will have no jurisdiction in that capacity, as the law exists, until the suit shall have been finally determined.

Ordinarily a matter of this sort should first be referred to the Commission for consideration and report, but inasmuch as ‘Mr. Adams states positively that the Commission has permitted Cherokee citizens to select Delaware segregated lands the Office has deemed it proper to express its views, and it is suggested that the matter be brought to the attention of the Commission, with direction not to continue to allow Cherokee citizens to select any of said lands, if it has in fact done so, until such time as it shall have been fully instructed in the premises by the Department.

It is respectfully recommended that the Commission be directed as herein suggested, and that the whole matter be referred to the Commission for early report.

Very respectfully,

A. C. TONNER, Acting Commissioner