Answer of Defendant, Ethan Allen Hitchcock

Answer of the defendant, Ethan Allen Hitchcock, as Secretary of the Interior, to the bill of complaint.

The defendant, Ethan Allen Hitchcock, as Secretary of the Interior, now and at all times hereafter saving and reserving to himself all manner of benefit and advantage of exception to the many errors and insufficiencies in the complainant's said bill of complaint contained for answer thereunto, or to so much of such parts thereof as this defendant is advised is material for him to make answer unto, answers and says:

I. This defendant neither admits nor denies the allegations of the first paragraph of the bill of complaint, and calls for strict proof thereof.

II. This defendant admits the allegation of the second paragraph of the bill of complaint.

III. This defendant denies that the Delaware Indians are a band of the Cherokee tribe or nation, or that since the 8th day of April, 1867, they have preserved their tribal organization, or have maintained their tribal laws, customs, and usages, as set forth in the third paragraph of the bill of complaint, but admits that said Delaware Indians, as individuals, became and are citizens of the Cherokee Nation by virtue of the agreement of April 8, 1867.

IV. This defendant, answering the allegations set forth in the fourth paragraph of the bill of complaint, denies that an agreement was entered into by and between the Cherokee Nation of Indians and the Delaware tribe of Indians, then living in Kansas, whereby said Cherokee Nation sold to the Delaware an amount of land east of the ninety-sixth degree, as alleged in said paragraph four; and further answering the allegations set forth in said paragraph, he alleges that on the 8th day of April, 1867, the Cherokee Nation agreed to sell to the Delaware, for their occupancy, the quantity of land named in said paragraph, upon the terms and conditions therein set forth; and further answering the allegations set forth in said paragraph, defendant admits each and every of them not heretofore denied; and further answering the allegations set forth in said paragraph, this defendant further alleges that the said 157,600 acres of land mentioned and described in said paragraph has not been set apart or segregated.

V. This defendant admits the allegations set forth in the fifth paragraph of the bill of complaint.

VI. This defendant, answering the allegations set forth in the sixth paragraph of the bill of complaint, alleges that there has been no segregation of the 157,600 acres of land mentioned and described therein, and as to the other allegations set forth in said paragraph, the same are admitted.

VII. VIII, and IX. This defendant admits the allegations set forth in the seventh, eighth, and ninth paragraphs of the bill of complaint.

X. This defendant, answering the allegations set forth in the tenth paragraph of the bill of complaint, alleges that by section 22 of the act of June 1, 1902 (32 Stat., 716, 718), exclusive jurisdiction is conferred upon the Commission to the Five Civilized Tribes, under the direction of the Secretary of the Interior, to determine all matters relative to the appraisement and allotment of the lands in said act provided for; and this defendant, further answering the allegations set forth in said paragraph, admits that under section 69 of said act, after the expiration of nine months from the date of the original selection of any allotment by or for any Cherokee citizen, no contest should be instituted against such selection, and that as early thereafter as practicable a patent should issue therefor.

XI and XII. This defendant is advised by counsel that the allegations set forth in the eleventh and twelfth paragraphs of said bill of complaint are matters of law, and not necessary to be answered.

XIII. This defendant, answering the allegations set forth in the thirteenth paragraph of the bill of complaint, alleges as follows: That on December 16, 1902, there was filed with the Commission to the Five Civilized Tribes a list or schedule of lands aggregating 157,600 acres, alleged to have been theretofore selected by the Delaware Indians and claimed by them under their agreement with the Cherokee Nation dated April 8, 1867; that thereafter, and on December 17, 1902, said Commission, by resolution, instructed Tams Bixby, defendant herein, and who was at the time acting chairman of said Commission, to cause to be set aside and segregated the lands designated and described in said list or schedule; that thereafter, and in compliance with said resolution, said defendant Bixby, as acting chairman of the said Commission, caused the tracts described in said schedule to be marked on maps or plats of lands within the Cherokee Nation, on tile in the office of the Commission, as set aside under said section 23 of the act of July 1, 1902; that thereafter, and upon further examination, the said Commission to the Five Civilized Tribes discovered numerous errors in said list or schedule and called the attention thereto of the person who had theretofore filed the same; that thereafter, and on January 23, 1903, the said Commission received from a person claiming to be a representative of the Delaware tribe of Indians an alleged corrected list or schedule of lands selected by them, aggregating about 157,600 acres, in the Cherokee Nation; that thereafter the list or schedule filed on December 16, 1902, was corrected to correspond with the list or schedule as filed on January 23, 1903, and said corrected list or schedule was accepted by said Commission as a proper designation of the lands to be selected and segregated under the provisions of said section 23 of the act aforesaid; that thereafter a number of Cherokee citizens not Delaware complained to the Commission that the list or schedule so corrected 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 the Delaware or any of them; that since the filing of said list or schedule as corrected a number of Delaware Indians have made complaint to the Commission that said corrected list or schedule did not include lands which had theretofore been selected and occupied by them, and they then made request to the Commission to be allowed to make final selections of lands containing improvements upon which they resided and which were not included in said corrected list or schedule; that since the acceptance of said corrected list or schedule the Commission has discovered that it includes lands which were by law reserved for town site and other purposes, and not subject to be set apart and segregated under the provisions of said section 23.

This defendant further alleges that the lands designated and described in the afore said corrected list or schedule were not selected with due regard for either the Delaware citizens generally or other citizens of the Cherokee Nation, and that said corrected list or schedule embraces lands which by law are reserved for town site and other purposes under the provisions of section 24 of the aforesaid act of July 1,

This defendant further alleges that on April 20, 1903, the Commission made report of its acts and proceedings with respect to the filing and acceptance of the aforesaid list or schedule of lands to the Secretary of the Interior for his approval, which report was received by the defendant as Secretary of the Interior on April 30, 1903, and has not been fully considered by him, nor have the acts and proceedings of the Commission, as set forth in this paragraph of the answer of this defendant, received his approval as Secretary of the Interior; neither has he accepted or approved said corrected list or schedule as a proper description and designation of the lands required by said section 23 to be segregated.

XIV. This defendant is advised by counsel that the allegations set forth in the fourteenth paragraph of the bill of complaint are matters of law, and not necessary to be answered.

XV. Answering the allegations as set forth in the fifteenth paragraph of the bill of complaint, this defendant denies that the Commission. to the Five Civilized Tribes now claims to have the right to receive applications for the allotment of lands designated and described in the lists referred to in paragraph 13 of the bill of complaint, or now claims to have the right, upon the filing of any such applications, to consider that the individual Delaware are barred and foreclosed of any interest in the 157,600 acres of land to be segregated by section 23 of the act of Congress of July 1, 1902.

XVI. This defendant admits that the suit referred to in paragraph 16 of the bill of complaint is pending in the Supreme Court of the United States, and denies each and every other allegation in said paragraph.

XVII. This defendant denies that the Commission and the Secretary of the Interior, or either of them, has disregarded any protest made to them or to either of them by the Delaware Indians, or any agent thereof, as alleged and set forth in the seventeenth paragraph of the bill of complaint, and alleges that all protests made to said Commission and to the Secretary were being considered by this defendant, as Secretary of the Interior, in connection with the acts and proceedings of said Commission under said section 23 of the act of July 1, 1902, at the time of the filing of the bill of complaint herein, and that appropriate action thereon and on such acts and proceedings of said Commission has not been taken because of the issuance of the temporary restraining order herein.

XVIII. This defendant is advised by counsel that the allegations set forth in the eighteenth paragraph of the bill of complaint are matters of law, and not necessary to be answered.

XIX. For answer to the nineteenth paragraph of the bill of complaint, this defendant alleges that there has been no segregation of the 157,600 acres of land, and in this connection refers to paragraph thirteen of this answer. He denies that the said Commission has done any acts to interfere with or prejudice the rights of the complainants, or either of them, to any lands in the Cherokee Nation to which they are entitled, or that he, as such Secretary of the Interior, has done any acts or threatened to do any acts which in any way interfere with or prejudice the rights of the complainants, or either of them, to any of the lands claimed by them in the Cherokee Nation.

XX. With respect to the allegations set forth in the twentieth paragraph of the bill of complaint, this defendant says that when the segregation of lands provided for in section 23 of said act of July 1, 1902, is made and approved, no allotments will be made of any lands included in said segregation until the suit mentioned in said section 23 is finally determined, nor will any action be taken by said Commission, or by this defendant as Secretary of the Interior, which will in any way prejudice the rights of the Delaware Indians to the lands included in said segregation.

XXI. This defendant, answering the allegations set forth in the twenty-first paragraph of the bill of complaint, alleges that he has not sufficient knowledge or information upon which to base a belief as to the truth of said allegations, and therefore denies the same.

XXII and XXIII. This defendant is advised by counsel that the allegations set forth in the twenty-second and twenty-third paragraphs of the bill of complaint are matters of law, and not necessary to be answered.

XXIV. Answering the allegations set forth in the twenty-fourth paragraph of the bill of complaint, this defendant denies that any acts of said Commission, or of this defendant as such Secretary of the Interior, have caused or will cause a multiplicity of suits, or have caused or will cause any loss, inconvenience, or damage whatever to the complainants, or any of them.

XXV. Answering the allegations set forth in the twenty-fifth paragraph of the bill of complaint, this defendant alleges, as he has heretofore alleged in the thirteenth paragraph of this answer, that no segregation as required by law has been made. And further answering the allegations set forth in said paragraph, this defendant denies that the Commission has unlawfully permitted an application to be filed with respect to the lands claimed by Richard C. Adams, or that any contest has been initiated with respect to the same. And this defendant further alleges that if any person or persons have gone upon, taken possession of, or committed acts of trespass or waste with respect to any lands claimed by said Richard C. Adams, or threatened injury to said lands and premises claimed by him, such acts and proceedings upon the part of third persons have been done and performed without the knowledge and consent of this defendant or of said Commission.

XXVI. Answering the twenty-sixth paragraph of the bill of complaint, this defendant alleges, as he has heretofore alleged in the thirteenth paragraph hereof, that no segregation of 157,600 acres of land has been made, as required by law.

XXVI½. Answering the allegations as set forth in paragraph 265 of the bill of complaint, this defendant admits that by the several acts of Congress creating and defining the powers of the Commission to the Five Civilized Tribes, and all the acts and proceedings of said Commission under said laws, are subject to the direction of the Secretary of the Interior; and this defendant denies that the acts and proceedings of the Commission with respect to said lists or schedules of land received by said Commission, as heretofore mentioned, were done by the direction and with the approval of this defendant as such Secretary of the Interior.

XXVII. XXVIII, and XXIX. This defendant is advised by counsel that the allegations set forth in the twenty-seventh, twenty-eighth, and twenty-ninth paragraphs of the bill of complaint have all been sufficiently answered.

And further answering the bill of complaint, this defendant, as such Secretary of the Interior, alleges that this defendant, as such Secretary of the Interior, and the Commission to the Five Civilized Tribes of Indians constitute a special tribunal whose duty it is to segregate and allot the lands in the Cherokee Nation; that the performance of this duty requires upon the part of said tribunal the exercise of judgment and discretion; that the segregation provide for in section 23 of the act aforesaid, before it is complete or effective, must be approved by this defendant as such Secretary of the Interior; that this duty involves upon his part as such Secretary the exercise of judgment and discretion, and is not, as he is advised, subject to review, control, or interference by the judicial branch of the Government in injunction proceedings; and this defendant prays the same benefit of his defense as if he had formally demurred to the bill upon the ground thereof; all 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 his reasonable costs and charges in this behalf most wrongfully sustained.

E. A. HITCHCOCK, Secretary of the Interior

MORGAN H. BEACH
Solicitor for Defendant, Ethan Allen Hitchcock

No. 79

Allotment of Lands to Delaware Indians

Allotment of Lands to Delaware Indians, 58th Congress, 2nd Session, Senate, No.104, 1904