Letters, Telegrams, Petitions 81-90

No. 81

In the supreme court of the District of Columbia, George Bullette et al., complainants, v. Ethan Allen Hitchcock, Secretary of the Interior et al., defendants. In equity, No. 23991.

Answer of defendant, Ethan Allen Hitchcock, to the amendment to the bill of complaint.

Comes now the defendant, Ethan Allen Hitchcock, as Secretary of the Interior, and, saving and reserving to himself all manner of benefit and advantage of exception to the many errors and insufficiencies in the amendment to the complainants’ bill of complaint, for answer thereto, or to so much of such parts thereof as he is advised is material for him to make answer unto, alleges as follows:

(1) Defendant, as such Secretary, denies that the acts and proceedings of the Commission to the Five Civilized Tribes of Indians, and of this defendant as Secretary of the Interior, or either of them, in the administration and execution of the provisions of section 23 of the act of July 1, 1902 (32 Stat., 716, 718), are fully set forth in the report of the Commission of October 30, 1902, the report of the Commissioner of Indian Affairs of November 22, 1902, the letter of this defendant, as such Secretary, of November 29, 1902, the report of the Commission of March 17, 1903, the report of the Commissioner of Indian Affairs of March 27, 1903, the letter of this defendant, as such Secretary, of March 30, 1903, the report of the Commission of April 20, 1903, and the reports of the Commissioner of Indian Affairs of April 28 and April 30, 1903, as alleged and set forth in said amendment to the complainants’ bill of complaint.

(2) Defendant, as such Secretary, denies that there has been any segregation of 157,600 acres of land, or that from said reports and letters, or from either or any of them, it appears that the segregation of 157,600 acres of land was made and completed by the Commission as required by the provisions of said section 23 of the act of July 1, 1902, or that it appears from said reports and letters, or from either or any of them, that it was held and considered by the Commission or by the Secretary of the Interior, or either of them, as having been made and completed by said Commission and by the Secretary of the Interior, or either of them, or was in fact approved or considered to have been approved by the Secretary of the Interior, as alleged and set forth in the amendment to said bill of complaint.

(3) Defendant, as such Secretary, denies that the Commission to the Five Civilized Tribes proceeded to the allotment of any of the lands in the Cherokee Nation under the direction and with the approval of this defendant, as such Secretary of the Interior, as alleged and set forth in the amendment to said bill of complaint.

(4) This defendant, as such Secretary, further answering the allegations in the amendment to the bill of complaint, alleges that on or about the 1st day of January, 1903, the Commission to the Five Civilized Tribes of Indians opened a land office at Vinita, Ind. T., for the purpose of receiving and passing upon applications from Cherokee citizens not Delaware for lands in the Cherokee Nation; that thereafter, and until the filing of the bill of complaint herein, the Commission received and passed upon applications for allotments made by members of the Cherokee Nation not Delaware, but no applications for allotments thus received and passed upon by said Commission have been approved by this defendant as such Secretary of the Interior; that at the time of the filing of the bill of complaint herein this defendant, as such Secretary, was considering the acts and proceedings of said Commission in so receiving and passing upon allotments, in order to determine whether said acts and proceedings were in conformity with the requirements of the aforesaid act of July 1, 1902.

(5) This defendant, as such Secretary, further alleges that the title to all the lands in the Cherokee Nation is still held by said nation; that until the title to lands embraced in any segregation provided for in section 23 of the act aforesaid has passed from said nation, this defendant, as such Secretary, has under the law full power and authority to correct, modify, annul, vacate, or set aside, any segregation of lands in the Cherokee Nation theretofore made by the Commission, not with standing said segregation may have received the approval of this defendant as such Secretary; and further, that this defendant as such Secretary, until the title to the lands embraced in any allotment has passed from the Cherokee Nation, has full power and author-ity to correct, modify, annul, vacate, or set aside, any allotment received and passed upon by the Commission, notwithstanding the allotment may theretofore have been approved by this defendant as such Secretary of the Interior; and this defendant prays the same benefit of the defense alleged in this paragraph as if he had formerly demurred to the bill upon the ground thereof.

All of which matters and things in this answer contained this defendant is ready to aver, maintain, and prove, as this honorable court shall direct, and humbly prays to be hence dismissed with reasonable costs and charges in this behalf most wrongfully sustained.

Ethan A. Hitchcock, Secretary of the Interior.
Morgan H. Beach, Solicitor for Defendant, Ethan Allen Hitchcock.

United States of America, District of Columbia, ss:

Ethan Allen Hitchcock, being duly sworn, deposes and says that he has read the foregoing answer to the amendment to the bill of complaint subscribed by him and knows the contents thereof; that the facts therein stated of his own knowledge are true, and those stated upon information and belief he believes to be true.

Ethan A. Hitchcock. Subscribed and sworn to before me this 30th day of June 1903.

Wm. H. De Lacy,
Notary Public.
[Notarial seal.]

No. 82

In the Supreme Court of the District of Columbia. Holding an equity court. George Bullette et al. on their own behalf and on behalf of the Delaware tribe of Indians residing in the Indian Territory, complainants, v. Ethan Allen Hitchcock, as Secretary of the Interior et al., defendants. In equity, No. 23991.

Affidavit of Ethan Allen Hitchcock in support of motion to dissolve temporary restraining orders.

Ethan Allen Hitchcock, being first duly sworn, upon his oath doth depose and say: That he is and since the 20th day of February, 1899, has been Secretary of the Interior; that as such Secretary he is one of the defendants in the above entitled action; that the defendants, Tams Bixby, Thomas B. Needles, Clifton R. Breckenridge, and William E. Stanley, are members of and constitute what is known as the Commission to the Five Civilized Tribes of Indians, provided for by section 16 of the act of March 3, 1893 (27 Stat., 612, 645), and the amendments thereto; that as such Secretary of the Interior this deponent is charged by sections 441 and 463 of the Revised Statutes of the United States with the supervision and direction of all public business relating to the Indians, the management of Indian affairs, and the management of matters arising out of Indian business, and by section 22 of the act of July 1, 1902, (32 Stat., 716, 718), he is especially charged with the direction, supervision, and control of all matters in respect to the appraisement and allotment of lands within the Cherokee Nation.

And deponent further says that by section 23 of the act last mentioned authority is conferred upon said Commission, under the direction of the Secretary of the Interior, to cause to be segregated 157,600 acres of land in the Cherokee Nation, including lands which have been selected and occupied by Delaware in conformity with the provisions of their agreement with the Cherokee dated April 8, 1867; that in making a list of lands to be so segregated it is incumbent upon said Commission to include therein any and all lands which have been selected and occupied by Delaware in conformity to the provisions of their agreement with the Cherokee of April 8, 1867, and to exclude therefrom lands occupied and which have been improved by other Cherokee citizens, or any of them; also to exclude all lands set apart for town sites by the provisions of the acts of June 28, 1898 (30 Stat., 495), May 31, 1900 (31 Stat., 221) and of July 1, 1902, supra; also to reserve all other lands as provided for in section 24 of the last-named act, and to forward a list of the lands so required to be segregated to the Secretary of the Interior for his approval.

And this deponent further says that the segregation so required to be made before it is complete and effective must be approved by the Secretary of the Interior. Further, that on December 16, 1902, said Commission permitted to be filed with it by Walters. Logan, claiming to be the attorney for the Delaware Indians, an alleged schedule or list of lands aggregating 157,600 acres within the Cherokee Nation, and on December 17, 1902, said Commission, by resolution, instructed its acting; chairman to cause to be set aside and segregated the lands designated and described in said schedule or list, and thereafter said acting chairman caused the tracts so described in said schedule or list to be marked upon maps or plats of lands in the Cherokee Nation on file in the office of said Commission as set aside under said section 23. That there after and upon further investigation the said Commission discovered numerous errors in said schedule or list and called the attention of said Logan thereto. That on January 23, 1903, the Commission received from Richard C. Adams, claiming to represent the Delaware Indians, an alleged corrected schedule or list of lands selected by them, aggregating 157,600 acres in the Cherokee Nation, and subsequently the schedule or list filed by Logan was corrected to correspond with the schedule or list tiled by Adams: that thereafter the Commission made a report to this deponent, as such Secretary of the Interior, of its actions and proceedings with respect to the segregation of 157,600 acres of land in the Cherokee Nation, which report was received by him April 30, 1903, and stated, among other things, in effect that the Commission believed that the lands embraced in said lists or schedules had not been selected with due regard for the interests of either the Delaware citizens generally or other citizens of the Cherokee Nation, and that said lands had been selected without any intention whatever of conforming to the laws relating to the establishment of town sites.

And this deponent, as such Secretary of the Interior, further says that in order to determine whether the acts and proceedings of said Commission with respect to setting apart the 157,600 acres of land aforesaid should be approved and the said lists or schedules of lands should be accepted as a proper designation and description of the lands by section 23 required to be segregated and set apart, he was, in the due and regular course of official business, immediately prior to and at the time of the institution of the suit herein, considering the report of said Commission with respect to its said acts and proceedings, and investigating and examining said acts and proceedings with the view of ascertaining whether said acts and proceedings were in conformity with the statutes in such case made and provided, and whether said lists or schedules included all lands which had been theretofore selected and occupied by the Delaware, and whether said lists or schedules included any lands which by law should not be included therein. And this deponent, as such Secretary of the Interior, further says that before completing the consideration of said report and before completing said investigation and examination, he was, as such Secretary, served with the restraining order of this court issued in this suit, which restraining order in effect commands him to desist from proceeding further with his examination and investigation.

And this deponent, as such Secretary of the Interior, further says that from the investigation heretofore made by him with respect to the actions and proceedings of said Commission in regard to the segregation of the said 157,600 acres of land, it appears that said acts and proceedings were not done and performed in conformity with the statute, and that from his examination of the said lists or schedules he believes that the same do not include all the lands theretofore occupied and selected by Delaware, and do include lands which, under the law, are reserved for town-site and other purposes, and lands which, prior to the filing of said lists or schedules, were in the possession of and had been improved by other Cherokees, not Delaware; further, that the rights of a large number of Delaware Indians have been ignored by those who made and filed said lists or schedules. And this deponent, as such Secretary of the Interior, further says that his approval or disapproval of the acts and proceedings of said Commission, or his approval or disapproval of said lists or schedules aforesaid, require on his part, as such Secretary of the Interior, an investigation of facts and an examination of laws; further, that the duty of directing and supervising the acts and proceedings of said Commission, the duty of approving or disapproving said acts and proceedings, and the duty of accepting or rejecting thc lists or schedules of lands so filed with said Commission, as aforesaid, involves upon his part the exercise of judgment and discretion, and is not, as he is advised, subject to interference or control by the judicial branch of the Government in injunction proceedings.

E. A. HITCHCOCK

Subscribed and sworn to before me this 19th day of June, A. D. 1903. [notarial seal.]
W. BERTRAND ACKER
Notary Public in and for District of Columbia

No. 83

In the supreme court of the District of Columbia. Holding an equity court. George Bullette, et al., on their own behalf and on behalf of the Delaware tribe of Indians residing in the Indian Territory, complainants, v. Ethan Allen Hitchcock, as Secretary of the Interior, et al., defendants. In equity, No. 2399.

Affidavit of Tams Bixby in support of motion to dissolve temporary restraining order.

Tams Bixby, being first duly sworn, upon his oath doth depose and say: That for six years last past he has been a member of what is known as the Commission to the Five Civilized Tribes of Indians provided for by section 16 of the act of March 3, 1893 (27 Stat. L., 612, 645), and the amendments thereto, and that he is now and for three months last past has been the chairman of said Commission; that as such member of said Commission he is one of the defendants in the above entitled action; that by section 22 of the act of July 1, 1902 (32 Stat. L., 716, 718), exclusive jurisdiction is conferred upon said Commission, under the direction of the Secretary of the Interior, to determine all matters relative to the appraisement and the allotment of lands in the Cherokee Nation; that section 23 of said act imposes upon said Commission the duty to cause to be segregated 157,600 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 8, 1867, and in making such selection to protect the rights of all the Delaware Indians claiming to be entitled to lands under and in pursuance of the aforesaid agreement, and to exclude from such segregation lands which had theretofore been occupied and improved by other Cherokee citizens, and also to exclude all lands reserved and set apart for town sites by the provisions of the acts of June 28, 1898 (30 Stat. L., 495), May 31, 1900 (31 Stat. L., 221 ), and section 24 of the act of July 1, 1902, supra.

That on December 16, 1902, there was filed with said Commission by Walter S. Logan, claiming to be the attorney for the Delaware Indians, a schedule of lands, aggregating 157,600 acres, alleged to have been theretofore selected by the Delaware and claimed by them under the aforesaid agreement of Aprils, 1867; that on December 17, 1902, by resolution of said Commission, this deponent, as acting chairman thereof, was instructed to cause to be set aside and segregated the lands designated and described in the aforesaid schedule; that in compliance with said resolution this deponent, as acting chairman, caused the tracts described in said schedule to be marked upon maps or plats of land in the Cherokee Nation on file in the office of said Commission as set aside under said section 23; that upon further examination said Commission discovered numerous errors in said schedule or list and called the attention of said Logan thereto; that on January 23, 1903, said Commission received from Richard C. Adams, claiming to represent the Delaware Indians, an alleged corrected schedule of lands selected by them, aggregating 157,600 acres, in the Cherokee Nation; that thereafter the schedule so filed by Walter S. Logan was corrected to correspond with the schedule as filed by said Adams and said corrected schedule accepted by said Commission as a proper designation of the lands to be selected and segregated under the provisions of said section 23; that thereafter a number of Cherokee citizens, not Delaware, complained to said Commission that said corrected schedule embraced a large quantity of lands which had theretofore been in their possession, and upon which they had made improvements, and which had not been occupied or improved by any Delaware; that sin(>e the filing of said corrected schedule a number of Delaware Indians have made complaints to said Commission that said corrected schedule did not include lands which had theretofore been selected and occupied by them, and have made requests to be allowed to make final selections of lands containing improvements and upon which they reside, and claiming that no portion of the lands so requested to be allotted to them were included within said corrected schedule. Further, that since the filing of said corrected schedule the Commission has discovered that it includes lands which were by law reserved for town-site purposes.

And deponent further says that he and the other members of said Commission, from their investigation made since the filing of said corrected schedule, are impressed with the belief that the lands designated thereby were not selected with due regard for the interests of either the Delaware citizens generally or other citizens of the Cherokee Nation, and that said corrected schedule embraces lands which by law are reserved for town-site purposes. And deponent further says that on April 20, 1903, said Commission made a report of its actions and proceedings with respect to the segregation of said 157,600 acres of land to the Secretary of the Interior for his approval or disapproval, and in said report stated, among other things, that said corrected schedule was made without any intention of conforming to the laws relating to the establishment of town sites and without due regard for the interests of the Delaware Indians or other citizens of the Cherokee Nation. And further deponent said not.

TAMS BIXBY

District of Columbia, ss:
Sworn and subscribed before me this 13th day of June, A. D. 1908. [seal.]
W. BERTRAND ACKER,
Notary Public in and for District of Columbia

Opinion of Mr. Justice Anderson on motion for temporary injunction.

 No. 85

In the Supreme Court of the District of Columbia. George Bullette et al., v. Ethan Allen Hitchcock, Secretary of the Interior, et al. No. 23991. Equity docket 53

This cause coming on to be heard upon bill of complaint and exhibits, the answer of the defendant, Ethan Allen Hitchcock, Secretary of the Interior, and affidavits, the amended bill of complaint, and exhibits, and the answer of said defendant Hitch-cock thereto and exhibits, and being argued by counsel, it is, by the court, this 6th day of October, A. D. 1903, adjudged, ordered, and decreed that the preliminary in-junction prayed for in said bill be, and it is hereby, denied, and that the temporary injunction heretofore granted in this cause be, and it is hereby, discharged.

THOS. H. ANDERSON,
Justice.
True copy. Test:

J. R. YOUNG, Clerk,
By F. E. CUNNINGHAM, Assistant Clerk.

No. 86
Telegram

Washington, September 28, 1903.

Bixby, Chairman,
Muscogee, Ind. T.:

Judge Anderson, Supreme Court District Columbia, in equity No. 23991, Bulette et al. V. Hitchcock et al., refused injunction and discharged temporary restraining order this morning.

THOS. RYAN, Acting Secretary

No. 87

Department of the Interior,
Washington, October 9, 1903.

Commission to the Five Civilized Tribes,
Muscogee, Ind. T.

Gentlemen: There is enclosed herewith for your information copy of opinion of Mr. Justice Anderson, in the case of George Bullette et al. v. Ethan Allen Hitchcock, Secretary of the Interior et al., No. 23991.

Respectfully,
THOS. RYAN, Acting Secretary

No. 88

June 6, 1903.

The President:

The Delaware Indians in the Cherokee Nation in the Indian Territory have been for many years in peaceful possession of certain lands in said Territory, on which they have established homes and have made improvements that have cost them in the aggregate several hundred thousand dollars.

Their right to undisturbed occupancy, while judicial proceedings presently to be explained are pending in respect of their titles, is guaranteed by treaty provisions and by the laws of the United States, yet their right is now being questioned, their occupancy attacked, their property trespassed upon and threatened with injury and destruction in a manner so unwarranted, so extraordinary, and so disastrous, that I feel it to be my duty to bring the matter to your attention, and to ask you to protect my people from the irreparable losses that are threatened.

I premise by saying that I ask for nothing more than that the lands to which I refer shall be protected from trespassers and preserved in their lawful condition in the way and for the time prescribed by the statutes to which I shall refer.

In 1867 the Delaware Indians bought of the Cherokees 157,600 acres of the lands of the Cherokees in the Indian Territory, for which they paid in cash $157,600. The Delaware selected and entered upon the lands so purchased, and made homesteads and improvements, and contended that under the terms of their purchase the lands, to the extent of 157,600 acres, should be set apart to them and that they should be given title thereto; but the Cherokees soon afterwards contended that the Delaware had purchased nothing more than the right to live on the lands.

In order to settle this dispute Congress, in the act approved June 28, 1898, entitled “An act for the protection of the people of the Indian Territory, and for other purposes,” by section 25 thereof provided that, before any allotment should be made of lands in the Cherokee Nation, there should be segregated by the Commission to the Five Civilized Tribes the 157,600 acres purchased of the Cherokees by the Delaware, subject to judicial determination of the rights thereto of the Delaware and Cherokees, and provided also for the institution of a suit in the Court of Claims to determine the questions at issue in respect of the meaning of the contract between the Delaware and Cherokees.

The suit so authorized was duly begun in the Court of Claims, and was on appeal taken to the Supreme Court of the United States, where it is now pending on appeal.

The lands were not then segregated, as provided for by the act, but Congress made further provision for their segregation, and by the twenty-third section of the act of July 1, 1902, directed that all Delaware Indians who are members of the Cherokee Nation should take lands as their rights should be determined by the judgment of the Court of Claims or the Supreme Court, in the suit already instituted by the Delaware against the Cherokees, and that the Commission to the Five Civilized Tribes should segregate 157,600 acres of land, including the lands which had been selected and occupied by the Delaware under their agreement with the Cherokees, subject to disposition according to such judgment as may be rendered in said cause.

By the same section it is expressly provided that–

“Nothing in this act shall in any manner impair the rights of either party to said contract as the same may be finally decided by the court, or shall interfere with the holdings of the Delaware under their contract with the Cherokees of April 8, 1S67, until their rights under said contract are determined by the courts in their suit now pending against the Cherokees.”

Notwithstanding the plain provisions of the acts of Congress referred to, notwith-standing the fact that the suit mentioned is still pending and undetermined, and notwithstanding the injustice and injury that must certainly follow the disregard and disobedience of said laws, the Commission to the Five Civilized Tribes, under the direction or with the approval of the Secretary of the Interior, has received and allowed to be tiled with the Commission applications by Cherokee Indians for and entries of lands so segregated as above stated, and selected and occupied by Delaware Indians, and has given notice to the Delaware occupying lands which they have selected to appear and contest said entries, although it is plain that the Delaware Indians can make no contest and can have no title in severalty to the lands so occupied by them until after the determination of said suit.

The Commission has also permitted trespassers, under color of applications and entries made by them and permitted to be filed, to go upon lands so occupied by Delaware Indians and to commit waste, to injure and tear down fences, and cut trees.

The dangers resulting from the allowance of entries to be made now as stated, and the requirement of the Delaware Indians to appear and make contest to protect their titles and rights of occupancy, are made conspicuous by the fact that the Delaware have now no titles, and that the act of Congress last referred to confines all right of contest to the period of nine months from the date of filing or making application. The title of the trespassers would or might be confirmed, and the Delaware have no opportunity to make defense.

On behalf of my people I have protested without avail to the Commission and to the Secretary of the Interior against what seems to me to be a gross violation of law, and I am daily in receipt of letters and telegrams from Delaware Indians asking that something be done to put a stop to trespasses, the perplexities and serious embarrassments in which they are being involved.

After consultation with my counsel, Messrs. Walter S. Logan, Nathaniel Wilson, and George S. Chase, a bill in equity was filed in the supreme court of the District of Columbia against the Secretary of the Interior and the Commission to the Five Civilized Tribes, setting forth at length the facts and considerations which are here stated in substance, and, on application, a preliminary restraining order was issued, without hesitation, by the judge holding the said court, returnable on the 19th instant.

I aver on behalf of my people that they and I are greatly averse to being placed in a position of antagonism toward the Secretary of the Interior and the Commission to the Five Civilized Tribes, and that they can ill afford the expense and trouble of further litigation.

In the hope and in the firm belief that you will see that the laws I have referred to are faithfully observed and executed for the protection of the small and helpless hand of Indians in whose behalf I write, I remain.

Very respectfully, yours,
RICHARD C. ADAMS

No. 89

Washington, D. C, June 8, 1903.

The Secretary of the Interior

Sir: In compliance with your verbal request made this day for certain memoranda relative to the statements contained in the letter of R. C. Adams dated June 6, 1903, addressed to the President and referring to the lands claimed by the Delaware Indians in the Cherokee Nation, Ind. T., I have the honor to respectfully submit the following:

The Commission to the Five Civilized Tribes is directed to cause to be segregated for the benefit of the Delaware 157,600 acres of land of the Cherokee Nation by section 22 of the act of Congress of July 1, 1902 (32 Stat. L., 71B), pending the determination of the suit of the Delaware v. The Cherokee Nation.

Section 22 of said act 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 land 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 the 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 Cherokee on 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.”

On December 16, 1902, there was filed with the Commission by R. C. Adams, rep-resenting the Delaware, an amended schedule of lands selected by the Delaware Indians in the Cherokee Nation, and said schedule contained the stipulation of counsel 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 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 description 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. HUTCHINS, Attorney for Respondent

Washington, D. C, December 10, 1902

Pursuant to the requirements of the law, the Commission 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 157,000 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 he 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 acting chairman in proceeding to carry said resolution into effect, discovered numerous errors and discrepancies, and on January 5, 1903, the attention of counsel representing petitioners and respondent was called to the existing state of affairs, and on January 5, 1903, the Commission received from H. C. Adams, claiming to represent the Delaware Indians at Washington, a certified copy of a “second amended schedule of lands selected by the Delaware as per stipulation of counsel.”

A comparison of the errors and discrepancies reported by counsel to the Commission, with the corrections made in the second amended schedule, shows that the discrepancies which counsel failed to correct have reference to lands reported by the Indian inspector for Indian Territory to have been reserved by the Secretary of the Interior for town sites.

The Commission had reported that said schedule of Delaware lands embraced certain lands within the limits of the town sites of Bartlesville, Lenepah, and Salisaw. Referring to said report, Mr. Adams takes exception to the action of the Department, and 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 Salisaw.”

Immediately upon the opening of the Cherokee land office at Vinita, Ind. T., on January 4, 1903, certain Cherokee citizens made application for allotment of land embraced wholly or in part within the lands segregated for the Delaware. From time to time, as opportunity offered, numerous other Cherokee citizens have like-wise applied for lands within the Delaware segregation. These Cherokee citizens claim in almost every instance to have their homes upon these lands, to have been in possession for many years, and to own valuable improvements on the same. They furthermore state that no Delaware citizen has ever occupied these lands or owned any improvements thereon.

With a view to protecting the rights of all the citizens of the Cherokee Nation, the Commission has accepted applications from those Cherokees who claimed rights to these lands by reason of possession and occupancy, reserving final action pending determination of the suit referred to. In no sense can these applications be considered as allotments. They may be construed rather as in the nature of the notice to the Department of adverse claims to the particular tract of land involved. Mr. Adams has been repeatedly assured that the Commission did not consider these applications as final allotments, and that no allotment certificates would be issued in such cases prior to final determination of all matters in controversy.

But notwithstanding the stipulation of counsel that the substituted descriptions are not to interfere with the lawful rights of other Cherokee citizens, and of the equities in the premises, Mr. Adams takes the position that if the final decision of the courts is favorable to the Delaware, the specific 157,600 acres will vest absolutely in the Delaware. Can any position be more untenable? May it seriously be contemplated that the Department or the courts will take lands from certain Cherokee citizens to which they possess lawful right and hand them over to other citizens without giving the former an opportunity to have their day in court or to even file a notice of their claims?

Numerous Delaware citizens have presented themselves at the land office and requested to be permitted to make a final selection of the lands containing their improvements and upon which they reside, claiming that their lands are not included within tile Delaware segregation, and the statement has been reputedly made that the Delaware Business committee refused to schedule for segregation the lands of any Delaware who failed to pay his pro rata share of the fee which the committee demanded. I am informed that the Delaware Indians, whose’ rights are thus unprotected, are generally in moderate circumstances, and the improvements upon the lands occupied by them, in most instances, represent the work of a lifetime.

It is evident, however, that while a considerable quantity of land claimed and occupied by Delaware has not been included in the schedule and made a part of the record, an amount of the public domain of the Cherokee Nation sufficient to bring the total segregation up to 157,600 acres has been included therein. Is it not, therefore, quite possible that in numerous instances the lands rightfully belonging to other citizens of the Cherokee Nation have been embraced within the Delaware segregation?

Under all the circumstances it is believed by the Commission, as heretofore stated in another communication, that the lands embraced in the several schedules and made a part of the record have not been selected with due regard for the best interests of the Delaware generally or the other citizens of the Cherokee Nation, and that all reasonable precaution should be taken to prevent the possibility of action by the Department or the courts that might be prejudicial to the right of any Cherokee citizen to select his home and cultivated fields in the final allotment of the lands of the Cherokee Nation.

Respectfully,
TAMS BIXBY, Chairman

No. 90

Department of the Interior, Office of Indian Affairs,
Washington, June 18, 1903.

The Secretary of the Interior.

Sir: I have the honor to submit herewith report of the Commission to the Five Civilized Tribes of the work done under its supervision for the month of May, 1903, which report I recommend be approved.

Permit me also to report that there are the following citizenship cases now pending in this Office:

Very respectfully
W. A. JONES, Commissioner