No. 41
Department of the Interior,
Office of Indian Affairs,
Washington, April 30, 1903
The Secretary of the Interior
Sir: Referring to Office report of April 28, 1903, relative to the Cherokee lands segregated by the Commission to the Five Civilized Tribes, in accordance with the provisions of section 23 of the Cherokee agreement, there is enclosed herewith a report from the Commission, dated April 20, 1903, pertaining to the same subject.
In said report the Commission quotes section 23 of the agreement; quote from the Commission’s report of October 20, 1902, as follows:
“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 all of said Delaware are having, 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 land from the said Cherokee Reservation east of hne 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.’ ”
And from Department letter of November 29, 1902, in which the Commission was advised that–
“The Department is in receipt of your report, dated October 20, 1902, in regard to a communication from Mr. Walter S. Logan, concerning the suit of the Delaware Indians against the Cherokee Nation, now pending in the Court of Claims.
“The Department concurs in the views expressed by your Commission, and has advised Mr. Logan to that effect. The Commissioner of Indian Affairs also concurred.”
It is then stated that on December 16, 1902, there was filed with the Commission an amended schedule of lands selected by the Delaware in the Cherokee Nation: that this schedule embodied the stipulation of counsel for the Delaware and Cherokee, which, omitting the title, is as follows:
“In pursuance of leave reserved and granted by the court upon the final hearing of this case, it is hereby stipulated and agreed that the record herein be amended by substituting in the place of the incorrect descriptions given in the record herein of the 157,600 acres selected and claimed by the Delaware, the annexed descriptions, which, upon careful examination, have been found correct.
“And it is further stipulated and agreed that the court may in its decision and final judgment herein, use the annexed correct descriptions in the place of the incorrect descriptions contained in said record: Provided, however, Such substituted descriptions do not interfere with the lawful rights or claims of other Cherokee citizens.
WALTER S. LOGAN, Attorney for Petitioners
WILHAM T. HITCHINS, Attorney for Respondent.
Washington, D. C, December 10, 190e
The report shows that on December 17, 1902, the Commission adopted the following resolution:
”Be it resolved by the Commission, That the acting chairman cause to be set aside and segregated 157,600 acres of land in the Cherokee Nation, in accordance with the provisions of section 23 of the act of Congress approved July 1, 1902 (Public No. 241), subject to disposition according to such judgment as may be rendered in the case of the Delaware Indians v. the Cherokee Nation, now pending in the United States Court of Claims and as shown by the description of said land in the stipulation of counsel for parties in said case, dated at Washington, D. C, December 10, 1902.”
The Commission states that in proceeding to carry the resolution into effect, numerous errors and discrepancies were discovered in the schedule; that on January 5, 1903, the attention of Walter S. Logan and Wilham T. Hutchings, counsel for the petitioners and respondent, respectively, was called to said errors and discrepancies. A copy of the Commission’s communication of the date last mentioned is among the papers and is marked “Exhibit A.”
The report shows that on January 23, 1903, Mr. Richard C. Adams, who claims to represent the Delaware Indians, furnished the Commission with a copy of a “second amended schedule of lands selected by the Delaware in the Cherokee Nation, as per stipulation of counsel,” which contains an additional stipulation by counsel, as follows:
“We agree to the corrections herein in ink on pages 2, 4, 9, 12, 14, 42, 46, 51, 54, 63, 72, 73, and 74, being two corrections on pages 9, 42, 46, 63, and one on each of the other pages, subject to the above proviso.”
The Commission states that the “above proviso” in the additional stipulation refers to the following: “Provided, however, such substituted descriptions do not interfere with the lawful rights or claims of other Cherokee citizens” contained in the first stipulation. A copy of Mr. Adams’s letter of January 15, 1903, transmitting the second amended schedule, is among the papers and is marked “Exhibit B.”
The Commission states that a comparison of the errors and discrepancies reported to the counsel for the Delaware and Cherokees, respectively, by the Commission, with the corrections made in the second amended schedule, shows that the discrepancies which counsel failed to correct pertain to lands reported by the Indian inspector for the Indian Territory, to have been reserved by the Department for town site purposes; that the Commission advised the attorneys for the contending parties that the schedule of Delaware lands “embraced 12.34 acres within the limits of the town site of Bartlesville, 12.50 acres within the limits of the town site of Lenepah, and 17.88 acres within the limits of the town site of Salhsaw,” and that Mr. Adams, in his letter of January 15 last, states that–
“On page 14 we take exception to the town of Bartlesville intruding on Delaware lands. On page 54, which you claim that part of the selection belongs to the town of Lenapah, we do not concede this for the same reason as above– that is, we had made the selections before the town was surveyed; and on pages 73 and 74 we contend that our rights to this land are older and better than the rights of the town of Salhsaw.”
It is then stated that since the opening of the Cherokee allotment office at Vinita, on January1 last, a number of Cherokee citizens have made applications for allotments of lands embraced wholly or in part in the segregation made for the Delaware; that such citizens in many instances claim to have been in possession of the lands applied for for years, and to own valuable improvements on the same, and that no Delaware citizen has ever occupied such lands or owned any improvements thereon; that action on this class of applications has been deferred, pending the determination of the Delaware-Cherokee suit, and attention is invited to Mr. Adams’s communication of April 7, 1903, a copy of which is among the papers, and marked “Exhibit C wherein he states–
“My understanding is that the 157,600 acres of land is segregated, and that no Cherokee will be allowed to file on this land or to receive allotment out of it until the Supreme Court has finally passed upon the rights of the Delaware Indians.”
A copy of a letter from Mr. Adams to the same effect, dated April 10, 1903, is among the papers, and marked ” Exhibit D.”
The Commission states that from Mr. Adams’s communication it “appears that, notwithstanding the proviso in the stipulation of counsel that the substituted descriptions are not to interfere with the lawful rights or claims of other Cherokee citizens, the Delaware, through Mr. Adams, take the position that if the decision of the Supreme Court is favorable to them the specific 157,600 acres described in the record of the case will vest absolutely in the Delaware, notwithstanding any claims which other Cherokee citizens may make to portions of the same lands;” that in addition to the contention of the Delaware for the lands embraced within the limits of the town sites mentioned, and for lands claimed “and in the possession of other Cherokee citizens,” a serious situation with reference to the Delaware segregation has developed in the work of allotment; that not a few Delaware citizens have presented themselves at the land office and asked to be allowed to make final selection of lands containing their improvements and upon which they reside, claiming that no portion of the lands occupied by them is included in the segregation; that the Commission has been informally advised “of cases of numerous other Delaware citizens whose improved lands are not included within said segregation, and the statement has been frequently made that the representatives of the Delaware Indians, or their business committee, refused to schedule for segregation the lands of any Delaware citizen who failed to pay a pro rata share of the fee which said representatives or committee demanded;” that the extent of the condition of affairs last mentioned is indicated by the correspondence had with Mr. Wilham Nairn, copies of which are among the papers marked “Exhibit E;” that it is evident that while lands occupied by Delaware citizens have not been included in the schedule of lands made a part of the record in the suit commenced by the Delaware, “an amount of the public domain of the Cherokee Nation sufficient to bring the total segregation up to 157,600 acres has been included,” and the Commission forwarded copies of the correspondence of the clerk in charge of the Cherokee land office at Vinita, which copies are marked “Exhibits F and G,” and show that since the segregation of the lands for the Delaware “by this Commission on December 17, 1902,” the Department has fixed the exterior limits of the town sites of North Tulsa and Lawton, in the Cherokee Nation, which embrace 20 and 25 acres, respectively, of the amount theretofore included in the Delaware segregation; that under the circumstances the Commission believes that the land embraced in the original schedule, and in the first and. second amended schedules, made a part of the record in the Delaware case, have not been selected with due regard for the interests of either the Delaware citizens generally or other citizens of the Cherokee Nation, and without any intention of conforming to the laws pertaining to the establishment of town sites.
The Commission enclosed with its report a copy of a communication addressed to Hon. M. S. Quay, United States Senator from Pennsylvania, by Mr. Adams, on April 10, 1903, which was referred to the Commission by Senator Quay. Said copy is marked “Exhibit H.” Mr. Adams’s communication of April 10, 1903, to Senator Quay is almost identical with his letter of April 18, 1903, which was forwarded to the Department with office report of April 28, 1903. In this communication he takes the position that the Commission is without jurisdiction to receive applications of Cherokee citizens for lands embraced within the Delaware segregation, and the Commission states that this position is taken “notwithstanding the proviso of counsel in the stipulation hereinbefore set forth providing for the protection of the property rights of other Cherokee citizens.”
The Commission believes that steps should be taken by the Department to guard against the possibility of the Supreme Court, in rendering judgment in said case, adopting the schedule “as the definite and specific tracts of land to which the Delaware are entitled under their claim,” and requests that the Department issue such instructions as may be deemed proper in the premises.
From the papers before this office it appears that the Commission has segregated lands for the Delaware, if any segregation has been made, in accordance with schedules furnished it by Mr. Adams.
December 17, 1902, the Commission adopted a resolution authorizing and empowering the then acting chairman to segregate the Delaware lands as required by the Cherokee agreement.
The Commission stated in its report of March 17, 1903, relative to the Commission’s work during the month of February, that the lands had been segregated, and it appears that the Commission considers that the lands were segregated as of date December 17, 1902, the day the resolution was adopted, although the Commission’s report shows that it accepted the second-amended schedule from Mr. Adams on January 23, 1903. There is nothing in the papers which shows that the Commission or the present chairman of the Commission, in accordance with the resolution of December 17 last segregated the lands referred to, except the Commission’s communication of January 5, 1903, addressed to Walter S. Logan and Wilham T. Hutchings, a copy of which is among the papers. In that communication it is stated that “the Commission has segregated and reserved from allotment, subject to disposition according to such judgment as maybe rendered in said cause, 157,541.74 acres of land in the Cherokee Nation, the same being the land described in said stipulation, less 60 acres” accounted for as indicated in the Commission’s communication.
The Commission’s report and other papers do not show that the chairman of the Commission actually segregated the land in accordance with said resolution, and that his action was approved by the Commission. It seems that the Commission did not investigate the matter and ascertain whether the lands it segregated or proposed to segregate were “lands which have been selected and occupied by Delaware in conformity to the provisions of their agreement with the Cherokees” of April 8, 1867, but that it simply took the schedule or schedules furnished it by Mr. Adams, and that the segregation was made, if any has been made, in accordance with such schedule or schedules, without investigation as to whether the lands described therein were susceptible of segregation in accordance with the provisions of law. It seems to this Office that the Commission should have first segregated all lands “which have been selected and occupied by Delaware,” and if the total amount segregated did not aggregate the required amount, then segregate from the public domain lands sufficient to make 157,600 acres.
If the Delaware Indians had “selected and occupied” more than 157,600 acres the aggregate amount of the lands selected and occupied by them should have been reduced, so that the total would not exceed 157,600 acres. This segregation, the Office believes, should have been made by the Commission from its own records and proper investigation, and not from the schedule or schedules furnished it by Mr. Adams or anyone else representing the Delaware. The schedule or schedules furnished by Mr. Adams could have been used by the Commission in connection with the making of the segregation, but the Commission should not have simply segregated the lands which he requested be segregated without proper investigation.
From the Commission’s report it appears that the Commission segregated the lands that Mr. Adams requested be segregated, and it seems, and, in fact, the Commission states, that the lands purported to have been segregated do not include all of the lands “selected and occupied by Delaware.”
The records of this office do not show that the Department has been furnished with the legal description of the lands alleged to have been segregated by the Commission. It seems to the office that the Commission should, as soon as the lands were segregated, have furnished the Department with a list of the segregated lands.
With reference to the town sites the records of this office show that the establishment of the exterior limits of Bartlesville was approved March 13, 1902; that the establishment of the exterior limits of Lenepah was approved March 5, 1902; and that the establishment of the exterior limits of Salhsaw was approved May 15, 1902.
At the time that the establishment of the exterior limits of the towns above mentioned was approved by the Department the Delaware lands had not been segregated, and the office believes that, under the provisions of the Cherokee agreement, lands not specifically segregated for any particular purpose were susceptible of being set aside for town-site purposes. It therefore believes that Mr. Adams’s contention relative to the Department’s not having authority to segregate the lands referred to by him, for town-site purposes, is untenable.
August 15, 1902, the Department authorized the Inspector for the Indian Territory to properly establish the exterior limits of the town of Lawton. This was prior to the purported segregation of Delaware lands on December 17 last, and the remarks relative to Bartlesville and the other towns above mentioned are applicable to Lawton.
The establishment of the exterior limits of North Tulsa was approved by the Department January 21, 1903, which was subsequent to the alleged segregation of Delaware lands. If the Delaware lands have been segregated, as the Commission holds, it is doubtful whether any of the lands should have been included within the limits of the town, as it seems that it was the intention of Congress that the segregated lands be not in any way disturbed after segregation until the Delaware-Cherokee suit shall have been finally determined. The Commission seems to be of the opinion that on account of the stipulation signed by the attorneys for the parties to the litigation, which is, in part, as follows:
Provided, however, Such substituted descriptions do not interfere with the lawful rights or claims of other Cherokee citizens,” its jurisdiction to allot to Cherokees, or at least to receive and tile application for allotment, covers segregated lands.
The Commission’s report of March 17, 1903, relative to the work performed by it during the month of February, 1903, shows that 38 applications for allotments were not approved “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,” and its report of April 10, 1908, relative to the work performed by it during the month of March, 1903, which has this day been transmitted, shows that 57 applications for allotments have not been approved for the same reason. This Office does not understand that the Commission has any jurisdiction of the segregated lands alter the segregation shall have been made until such time as the court shall have finally decided the case. The law specifically declares that the lands shall be segregated, and that when segregated “such lands so to remain” until the final determination of the cause, and requires the Commission to allot “the remaining lands of the tribe as aforesaid.”
The fact that the attorneys for the contending parties have signed a stipulation agreeing that the lands segregated shall not “interfere with the lawful rights or claims of other Cherokee citizens” does not in any manner whatsoever nullify or modify the law. The law is directory, and the Commission has no discretionary power in the premises. If the 157,600 acres have been segregated, the Office does not believe that the Commission should, until after the determination of the suit, permit any citizen of the nation to even file an application selecting any of the segregated lands as his allotment.
If an error has been made by the Commission in segregating lands lawfully in the possession of Cherokee citizens not of Delaware blood, the error should be corrected, and after this has been done, Cherokee citizens, whether of Delaware blood or other-wise, should not be permitted to file an application covering any of the segregated lands pending the determination of the case. It is thought that during said time the Commission should not even receive and file applications covering segregated lands. Applicants should, the Office believes, be advised that the Commission is without jurisdiction to allot or to receive an application covering any of such lands during the pendency of the suit.
The Commission’s reports for the months of February and March show that it has received 95 applications covering lands alleged to have been segregated in accordance with section 23 of the agreement. To continue such applications will only be the means of complicating matters and fostering contests.
The Commission seems to be of the opinion that the Supreme Court of the United States may, in deciding the Delaware suit, approve a certain schedule, which seems to be a part of the record in the case, and expresses the opinion that steps should be taken to prevent such action by the court. The Office does not understand that the court has authority to approve such schedule. The province of the court seems to be to decide the questions involved and to determine what interests the Delaware citizens have in the Cherokee lands, and it is the duty of the Commission, and not of the court, to segregate the 157,600 acres. However, it is believed that the Commission should furnish the Department with legal descriptions of the tracts segregated, if such segregation has been made, for its information and for such action, with reference to bringing the matter to the attention of the court, as the Department may consider proper.
If the Department shall hold that the Commission has segregated the 157,600 acres of land it is suggested that the Commission be advised in accordance herewith; but if the Department shall hold that the land has not been segregated it is thought that the Commission should be instructed to immediately segregate from allotment, “so to remain” until the final determination of the cause, 157,600 acres of land, the same to include “lands which have been selected and occupied by Delaware in conformity with the agreement of April 8, 1867.”
As above stated, the Office believes that the Department had full power and authority to segregate any Cherokee lands for town site purposes, regardless of whether occupied by Delaware citizens or any other citizen of the Cherokee Nation prior to the alleged Delaware segregation of December 17 last; and as part of the Delaware segregation is included within the limits of town sites, it is thought that the Commission should be instructed to segregate from the Public domain or lands in possession of Delaware citizens, if all of such lauds have not been segregated, additional lands in an amount equal to the Delaware segregation included within the limits in the town sites above mentioned, except North Tulsa.
If the Delaware lands were segregated on December 17, 1902, and were not after that date susceptible of allotment during the pendency of the suit, or subject to being reserved for town site purposes after the segregation, it would seem that the Department’s action in setting aside 20 acres of the Delaware segregation for town site purposes in the town of North Tulsa should be reconsidered, and that the 20 acres mentioned should not be included within the limits of the town site.
The records of this Office and the Commission’s report do not show that the inspector for the Indian Territory had been advised of the alleged segregation of Delaware lands. If he had been so advised, it is not probable that he would have recommended that 20 acres of such lands be included within the limits of the town of North Tulsa, at least without bringing the matter to the attention of the Department.
Very respectfully,
A. C. TONNER, Acting Commissioner
No. 42
Muscogee, Ind. T., April 20, 1903.
The Secretary of the Interior
Sir: Report is hereby respectfully made of the action of the Commission in segregating 157,600 acres of land under section 23 of the act of July 1, 1902 (32 Stat. L., 716), pending the determination of the suit of the Delaware Indians v The Cherokee Nation and submitting matters relating thereto for the consideration of the Department.
Said section 23 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 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 Delaware in conformity to the provisions of their agreement with the Cherokees dated April eighth, eighteen hundred and sixty-seven, such lands 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.”
In its communication of October 20, 1902, reporting on a letter from Mr. Walter S. Logan, referred to it by the Department, the Commission among other things stated:
“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 all of said Delaware are having, 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 land from the said Cherokee Reservation east of hne 96°, not theretofore selected or in possession of other parties, entered into the occupancy and possession of the land and made extensive and valuable improvements thereon, and they, their children, descendants, heir’s 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 then>on down to the present time.’ ”
Under date of November 29, 1902, the Department advised the Commission as follows:
“The Department is in receipt of your report dated October 20, 1902, in regard to a communication from Mr. Walter S. Logan, concerning the suit of the Delaware Indians against the Cherokee Nation, now pending in the Court of Claims. The Department concurs in the views expressed by your Commission, and has advised Mr. Logan to that effect. The Commissioner of Indian Affairs also concurred.”
On December 16, 1902, there was filed with the Commission, an amended schedule of lands selected by the Delaware in the Cherokee Nation, said schedule being embodied in the stipulation of counsel, the preamble of which, after omitting the title, is as follows:
“In pursuance of leave reserved and granted by the court upon the final hearing of this case, it is hereby stipulated and agreed that the record herein be amended by substituting in the place of the incorrect descriptions given in the record herein of the loT, (UK) acres selected and claimed by the Delaware, the annexed descriptions whit’h, upon careful examination, have been found correct.
“And it is further stipulated and agreed that the court may, in its decision and final judgment herein, use the annexed correct descriptions in the place of the incorrect descriptions contained in said record: Provided, however, Such substituted descriptions do not interfere with the lawful rights or claims of other Cherokee citizens.
Walter S. Logan,
Attorney for Petitioners
William T. Hitchings,
Attorney for Respondent
Washington, D. C, December l0, 1902
On December 17, 1902, the Commission adopted the following resolution:
“Be it resolved, by the Commission, That the acting chairman cause to be set aside and segregated 157,600 acres of land in the Cherokee Nation, in accordance with the provisions of section 23 of the act of Congress approved July 1, 1902 (Public No. 241), subject to disposition according to such judgment as may be rendered in the case of The Delaware Indians v. The Cherokee Nation now pending in the United States Court of Claims and as shown by the description of said land in the stipulation of counsel for parties in said case, dated at Washington, D. C, December 10, 1902.”
In proceeding to carry said resolution into effect the Commission discovered numerous errors and discrepancies from the schedules submitted, which by letter dated January 5, 1903, were called to the attention of Walter S. Logan and Wilham T. Hutchings, counsel for petitioners and respondent, respectively, a copy of said letter being attached hereto and marked “Exhibit A.”
On January 23, 1903, the Commission received from Richard C. Adams, claiming to represent the Delaware Indians at Washington, a certified copy of a “second amended schedule of lands selected by the Delaware in the Cherokee Nation as per stipulation of counsel,” which contains the additional stipulation by counsel, as follows:
“We agree to the corrections herein in ink on pages 2, 4, 9, 12, 14, 42, 46, 51, 54, 63, 72, 73, 74, being two corrections on pages 9, 42, 46, 63, and one on each of the other pages, subject to the above proviso,”
The “above proviso” referred to in the additional stipulation just quoted refers to the following in the first stipulation quoted, viz: ”Provided, however, such substituted descriptions do not interfere with the lawful rights or claims of other Cherokee citizens.”
A copy of Mr. Adams’s letter of January 15, 1903, transmitting said omitted schedule, is herewith attached, marked “Exhibit B.”
A comparison of the errors and discrepancies reported to counsel by the Commission with the corrections made in the second amended schedule, shows that the discrepancies which counsel failed to correct have reference to land, reported by the Indian inspector for Indian Territory to have been reserved by the Department for town site purposes.
The Commission had reported to counsel that the schedule of Delaware lands embraced 12.34 acres within the limits of the town site of Bartlesville, 12.50 acres within the limits of the town site of Lenepah and 17.88 acres within the limits of the town site of Salhsaw. Referring to said report, Mr. Adams, in his letter, states:
“On page 14 we take exception to the town of Bartlesville intruding on Delaware lands. On page 54, which you claim that part of the selection belongs to the town of Lenepah, we do not concede this for the same reason as above, that is, we have made the selections before the town was surveyed, and on pages 73 and 74 we contend that our rights to this land are older and better than the rights of the town of Salhsaw.”
Since the opening of the Cherokee allotment office at Vinita, Ind. T., on January 1, 1903, a number of Cherokee citizens have made application for allotments of land embraced wholly or in part in the segregation made for the Delaware. They claim in many instances to have been in possession of these lands for years and to own valuable improvements on the same, and state that no Delaware citizen has ever occupied such lands or owned any improvements thereon. Action on this class of applications has been deferred pending the determination of the suit referred to.
In a communication dated April 7, 1903, a copy of which is hereto attached and marked “Exhibit C,” Mr. Adams states:
“My understanding is that the 157,600 acres of land is segregated, and that no Cherokee will be allowed to file on this land or to receive allotment out of it until the Supreme Court has finally passed upon the rights of the Delaware Indians.”
A copy of a letter to the same effect from Mr. Adams, dated April 10, 1903, is hereto attached and marked “Exhibit D.”
From these it appears that, notwithstanding the proviso in the stipulation of counsel that the substituted descriptions are not to interfere with the lawful rights or claims of other Cherokee citizens, the Delaware, through Mr. Adams, take the position that if the decision if the Supreme Court is favorable to them the specific 157,600 acres described in the record of the case will vest absolutely in the Delaware, notwithstanding any claims which other Cherokee citizens may make to portions of the same lands.
In addition to the contention of the Delaware for the lands embraced within the limits of the town sites mentioned, and for lands claimed and in the possession of other Cherokee citizens, quite a serious situation with reference to the Delaware segregation has developed in the work of allotment. Not a few Delaware citizens have presented themselves at the land office and asked to he allowed to make a final selection of lands containing their improvements and upon which they reside, claiming that no portion of the lands occupied by them is included within said Delaware segregation.
The Commission has been informally advised of cases of numerous other Delaware citizens whose improved lands are not included within said segregation, and the statement has been frequently made that the representatives of the Delaware Indians or their business committee refused to schedule for segregation the lands of any Delaware citizen who failed to pay a pro rata share of the fee which said representatives or committee demanded. The Delaware, whose property rights are thus unprotected, are for the most part in moderate circumstances, and the improvements on the lands occupied by them represent, in most instances, the efforts of a lifetime.
The extent of the condition of affairs last mentioned is indicated by the correspondence had with Wilham Nairn, of Coodys Bluff, Ind. T., copies of which are hereto attached and marked “Exhibit E.”
It is quite evident that while lands occupied by Delaware citizens have not been included in the schedule of lands made a part of the record in the suit of the Delaware an amount of the public domain of the Cherokee Nation sufficient to bring the total segregation up to 157,600 acres has been included.
There are also attached hereto and marked “Exhibit F” and “Exhibit G,” copies of reports of the clerk in charge of the Cherokee land office in Vinita, dated February 12, 1903, showing that since the segregation of lands for Delaware by this Commission on December 17, 1902, the Department has fixed the exterior limits of the town sites of North Tulsa and Lawton in the Cherokee Nation, which embrace, respectively, 20 and 25 acres of land theretofore included in said Delaware segregation.
Under all circumstances the Commission believes that the lands embraced in the original schedule, and in the first and second amended schedules made a part of the record in the case of the Delaware, have not been selected with a due regard for the interests of either the Delaware citizens generally or other citizens of the Cherokee Nation, and in so far as town sites are affected without any intention of conforming to the laws relating to the establishment of such town sites.
The Commission is in receipt of a communication from Mr. Adams to Hon. M. S. Quay, United States Senator from Pennsylvania, dated April 10, 1903, and referred by Senator Quay to the Commission. A copy of said letter and of Senator Quay’s indorsement thereon is hereto attached, marked “Exhibit H.” In this latest letter Mr Adams takes the position that the Commission is without jurisdiction to receive applications of Cherokee citizens for lands embraced in the Delaware segregation, notwithstanding the proviso of counsel in the stipulation hereinbefore set forth providing for the protection of the property rights of other Cherokee citizens.
The Commission believes that some steps should be taken to guard against the possibility of the Supreme Court rendering a judgment adopting said schedule as the definite and specific tracts of land to which the Delaware are entitled under their claim, and respectfully request that the Department may issue such instructions as it may deem proper in the premises.
Respectfully,
TAMS BIXBY, Chairman
T. B. NEEDLES,
C. R. BRECKENRIDGE
W. E. STANLEY,
(Through the Commissioner of Indian Affairs.)
No. 43
May 4, 1903.
The Assistant Attorney-General for the Department of the Interior.
Sir: There is transmitted herewith a report of the Acting Commissioner of Indian Affairs of April 30, 1903, submitting a communication from the Commission to the Five Civilized Tribes (with enclosures), relative to lands segregated by it under section 23 of the act of July 1, 1902 (32 Stat. L., 716, copy enclosed); also a letter from him of April 28, 1903, with enclosures, reporting in regard to a communication from Richard C. Adams, relative to such segregation.
The Commission states on page 7 of its letter that–
“Under all circumstances the Commission believes that the lands embraced in the original schedule and in the first and second amended schedules made a part of the record in the case of the Delaware have not been select was with a due regard for the interests of either the Delaware citizens generally, or other citizens of the Cherokee Nation, and in so far as town sites are affected, without any intention of conforming to the laws relating to the establishment of such town sites.”
The Department requests your opinion as to whether said segregation has been made in conformity to the law, and what its authority and duty are in the premises.
Respectfully,
THOS. RYAN, Acting Secretary
No. 44
Department of the Interior,
Washington, June 1, 1903
The Assistant Attorney-General for the Interior Department.
Sir: There is enclosed herewith for consideration in connection with departmental letter of May 4, 1903, transmitting certain correspondence relative to lands segregated by the Commission to the Five Civilized Tribes for the benefit of the Delaware, a communication dated May 27, 1903, from Mr. Richard C. Adams, Washington, D. C., relative to the matter.
Respectfully,
THOS. RYAN, Acting Secretary
No. 45
May 27, 1903.
The Secretary of the Interior, Washington, D. C.
Sir: Confirming my letter of April 18, 1903, relative to the rights of the Delaware in the lands segregated for their benefit under section 23 of the act of Congress approved July 1, 1902, I wish to state that I have recently visited the Delaware and find that conditions are growing much worse instead of better, and the Delaware desire an early decision in regard to their rights and the right of the Commission to the Five Civilized Tribes to allow Cherokee citizens to file upon the segregated lands.
I find that in many cases Cherokees have gone to the Commission to the Five Civilized Tribes and filed on lands owned, occupied by, and in possession of Delaware Indians, and recognized as lands segregated for them; that such Cherokees immediately upon filing on the land take possession of it, and, in some cases, fence such land, even though it be a part of the land cultivated by a Delaware. The Delaware Indian is warned by the Cherokee against trespassing on his own land and even threatened with injunction, which threat in one or two cases has been made good.
The Delaware Indians are much alarmed over the manner in which their rights are neglected. They feel they have a right to the protection of the Secretary of the Interior, and that the law guarantees to them this protection; that it is unnecessary for them to be put to the expense and trouble of appealing to the courts for protection, and that the Secretary should not only put a stop to the Cherokees filing on said lands but should remove all persons from the segregated lands who do not hold as Delaware Indians or under authority of said Indians.
Very respectfully,
RICHARD C. ADAMS
No. 46
[Telegram.]
Vinita, Ind. T., January 2, 1903.
T. M. Buffington,
Care National Hotel, Washington, D. C:
Commission is issuing numbers to persons on doubtful cards to take allotments Monday. Enter protest and call Secretary’s attention to sections 11, 29, and 31 of Cherokee agreement. Letter follows. Answer.
W. W. HASTINGS, Attorney.
No. 47
[Telegram.]
Washington, January 3, 1903.
Dawes Commission, Muscogee, Ind. T.
Protest filed by Cherokee Nation against your alleged action in issuing numbers to Persons on doubtful cards to take allotments on Monday. Report fully by wire.
THOS. RYAN, Acting Secretary
No. 48
[Telegram.]
Muscogee, Ind. T., January 3, 1903.
Secretary of Interior, Washington, D. C:
Telegram received. Commission has thought advisable to make reservations for doubtful Cherokee claimants, pending determination of cases, where such claimants are in possession and own improvements. No allotments will be made to them before cases are finally acted upon by Department.
BIXBY. Acting Chairman
No. 49
[Telegram.]
Washington, January 5, 1903.
Bixby, Acting Chairman, Muscogee, Ind. T.:
Since your report January 3 shows that reservations are made for doubtful Cherokee claimants, pending determination of their cases, only where such claimants are in possession and own improvements, your action in that respect is approved.
THOS. RYAN, Acting Secretary
No. 50
Department ok the Interior,
Office of Indian Affairs,
Washington, November 18, 1903.
The Secretary of the Interior
Sir: Referring to Department letters of October 6 and 29, 1903, respectively, relative to the segregation of the lands claimed by the Delaware Indians, there is enclosed herewith a report from the Commission to the Five Civilized Tribes, dated November 11, 1903, transmitting what appears to be a “second amended schedule of lands selected by the Delaware in the Cherokee Nation as per stipulation of counsel.” The Commission quotes section 25 of the act of June 28, 1898, and section 23 of the Cherokee agreement, both of which are familiar to the Department, and states that under section 25 of the Curtis Act suit was brought by the Delaware Indians against the Cherokee Nation in the Court of Claims for the purpose of adjudicating the rights of the Delaware Indians to share in the allotment of lands and in the distribution of the funds of the Cherokee Nation; that on February 2, 1903, the Court of Claims dismissed said suit; that an appeal was taken from the decision of this court to the Supreme Court of the United States, where the case is now pending on appeal; that on December 16, 1902, there was filed with the Commission an amended schedule of lands purporting to comprise the 157,600 acres scheduled and claimed by Delaware Indians in the Cherokee Nation under the Delaware-Cherokee agreement of April 8, 1867; that annexed to said schedule was a stipulation between the attorneys for the contending parties to the effect that the schedule embraced the 157,600 acres of land claimed by the Delaware, and that upon careful examination the descriptions in the schedule had been found to be correct.
It is said that the Commission, relying on said stipulation and believing the schedule to be satisfactory to all the parties in interest, on December 17, 1902, adopted the following resolution:
“Be it resolved by the Commission, That the acting chairman cause to be set aside and segregated 157,600 acres of land in the Cherokee Nation, in accordance with the provisions of section 23 of the act of Congress approved July, 1902 (Public, No. 241), subject to disposition according to such judgment as may be rendered in the case of the Delaware Indians v. The Cherokee Nation, now pending in the United States Court of Claims, and as shown by the description of said land in the stipulation of counsel for parties in said case, dated at Washington, D. C, December 10, 1902.”
And that, in compliance with this resolution, “the said segregation of Delaware lands was accordingly made, December 17, 1902, and entered upon the maps and plats of the Commission;” that subsequently numerous errors and discrepancies were found in the schedules, to which the attention of counsel for both parties was directed by the Commission’s letter of January 5 last; that “a second amended schedule” was tiled with the Commission January 23, 1903, which is simply the former schedule with certain alterations and corrections, and contains the agreement herein previously mentioned between the attorneys, with an additional stipulation as follows:
“We agree to the corrections herein in ink on pages 2, 4, 9, 12, 14, 42, 51, 54, 63, 72, 73, 74, being two corrections on pages 9, 42, 46, 63, and one on each of the other pages, subject to the above proviso.
WALTER S. LOGAN, Attorney for petitioner
WM. T. HUTCHINGS, Attorney for respondent
By J. J. HEMPHILL
January 13, 1903
The Commission says that upon the filing of the second amended schedule the lands described therein were, on January 23, 1903, accepted and adopted by it as the segregation of Delaware lands which the Commission is directed by law to make: that since the making and adoption of the latter segregation it has been found that counsel failed to correct all the errors and discrepancies to which their attention was invited; that such errors consist largely of improperly including in said schedule certain lands which are embraced within the limits of certain town sites reserved under section 24 of the Cherokee agreement; that it has also been found since the adoption of said segregation that there are lands outside of the segregation, but within the limits of the Cherokee Nation, which are not occupied by Delaware who own the improvements located thereon, and that there are lands within the segregation which are occupied by Cherokees who own the improvements thereon. The Commission says “it is believed that an amendment ought to be made to said segregation, at the proper time, embodying all the corrections which shall be found necessary,” and concludes its report as follows:
“Inasmuch as it has been held by the supreme court of the District of Columbia n the case of Bullette v. Hitchcock et al. that the approval of the Secretary of the Interior is necessary to the validity of any such segregation which the commission may make, it is respectfully recommended that the action of the Commission relative to the adoption of said segregation be approved by the Department, and that at the proper time the necessary corrections be embodied in an amendment to be added to said schedule and likewise approved by the Department.”
October 6 the Department advised the Commission that the law hereinbefore mentioned imposed upon it the duty of investigating and determining what lands are subject to segregation and said:
“Your Commission can not substitute the judgment of the Delaware Indians or any of them, or anyone acting for them or any of them, for your own judgment in this matter.”
The Commission was advised that the segregation to become effective must meet with the approval of the Department; that the list or schedule referred to did not meet the requirements stated, and it was instructed to at once make such examination and investigation as would enable the Commission to determine what tracts should be added to the list and what tracts then embraced therein should be excluded. October 29 the Department directed the Commission to make a list of the tracts embraced in the schedule mentioned, showing lands claimed and occupied by Delaware to which there were no adverse claims, a list embracing all tracts claimed by Delaware Indians but not included in the list previously presented to the Commission, and a list embracing the tracts included in the list previously presented to the Commission to which some Cherokee citizen other than a Delaware made claim, and forward these lists to the Department with recommendation as to what action should be taken by the Department upon each list. The Commission makes no mention of either of these letters, and it does not appear that the Department’s instructions have been complied with. Therefore the Commission’s report and papers accompanying the same, including a map of the Cherokee Nation, are enclosed herewith for such action as you may be pleased to take thereon.
Very respectfully,
W. A. JONES, Commissioner