While we know our northern friends may not feel it, in the South, Spring is
here. So we thought we'd share a few of our gardening sites appropriate
for this time of the year. Along with gardening, there's grilling, and getting
ready to diet so that you can fit back into that bathing suit this summer!
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
Contests
instituted prior to February
1
Contests filed
during February
24
Complaints
returned for correction during
February
18
Contests
instituted during February
6
The condition of
the 6 Cherokee cases pending
before the Commission on
February 28 was as follows:
Awaiting final
determination of citizenship
1
Set for trial
5
Total
6
Respectfully submitted.
Tams Bixby, Chairman.
T. B. Needles, Commissioner.
C. R. Breckinridge, Commissioner.
W. E. Stanley, Commissioner.
(Through the Commissioner of Indian
Affairs.)
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.
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.
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.
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
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.
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.
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.
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.
