Letter from the Commission to the Five Civilized Tribes to Secretary of Interior - No.173

Muscogee, Ind. T.,
December 31, 1903

The Secretary of the Interior

Sir: We have the honor to transmit herewith a list of lands of the Cherokee Nation constituting the Delaware segregation, which lands the Commission has caused to be so segregated in accordance with section 23 of the act known as "An act to provide for the allotment of the lands of the Cherokee Nation, for the disposition of town sites therein, and for other purposes" (Pub. Doc. 241), approved by the President July 1, 1902, and ratified by the Cherokee Nation August 7, 1902, and commonly referred to as the last Cherokee agreement.

This is amendatory or in lieu of any other list or data that this Commission has heretofore adopted or considered for this segregation.

We also send you certain accompanying papers, which will be more definitely referred to later on in this communication.

The Commission deems it necessary to make a full report upon this matter, not only because of its general importance, but also because of the gradual but ultimately complete revelation of the extraordinary character of the list of lands, 157,604.66 acres in extent, presented to the Court of Claims by counsel for the Delaware, and subsequently accepted by this Commission as a segregation for the Delaware, and of the still subsequent proceedings of said counsel in connection therewith.

The document referred to provided by its terms for the correction of wrongs and errors, but when evidence appeared of glaring wrong, amendment and even investigation were bitterly opposed by said counsel; unsustained and inadequate denials have been made, novel and astonishing doctrine has been advanced, and the whole matter has become revealed as the most ingenious, persistent, and comprehensive scheme, under a pretext of law, to hold land for personal benefit and contrary to law, and to appropriate the lawful holdings of others without their knowledge or consent, that the Commission has yet come in contact with.

The law and instructions, under which the Commission has made this segregation, are as follows:

Section 23 of the last Cherokee agreement, previously referred to, provides that--

"All Delaware Indians who are members of the Cherokee Nation shall take lands and share in the funds of the tribe, as their rights may be determined by the judgment of the Court of Claims, or by the Supreme Court, if appealed, in the suit instituted therein by the Delaware against the Cherokee Nation, and now pending; but if said suit be not determined before said Commission is ready to begin the allotment of lands of the tribe as herein {provided, the Commission shall cause to be segregated one hundred and fifty-seven thousand six hundred acres of land, including lands which have been selected and occupied by Delaware in conformity to the provisions of their agreement with the Cherokees, dated April eighth, eighteen hundred and sixty-seven, such lands 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."

The instructions of the Department, and the steps heretofore taken by the Commission in regard to making the Delaware segregation, are duly set forth in the following quotations from departmental letters addressed to the Commission:

In Acting Secretary Ryan's letter of October 6, 1903, it is said that--

* * * April 20, 1903, your Commission made a report of its action with respect to compliance with the provisions of said section 23, from which report it appears among other things, as follows: That on December 16, 1902, there was filed with your Commission, by Walter S. Logan, claiming to be the attorney for the Delaware Indians, a schedule of lands, aggregating 157,600 acres, selected "by Delaware and claimed by them under the agreement of April 8, 1867, with the Cherokee Nation; that on December 17, 1902, by resolution, your chairman was instructed to * * * cause to be set aside and segregated 157,600 acres of land in the Cherokee Nation, in accordance with the provisions of section 28 of the act of Congress approved July 1, 1902 (Public-- No. 241), subject to disposition according to such judgment as may be rendered in the case of the Delaware Indians v the Cherokee Nation, now pending in the United States Court of Claims, and as shown by the description of said land * * * in the schedule above referred to; that on January 1, 1908, your Commission opened the Cherokee allotment office at Vinita, Ind. T., and proceeded to the allotment of the remaining lands of the Cherokee tribe; that on January 28, 1903, your Commission received from Richard C. Adams, claiming to represent the Delaware Indians, an alleged corrected schedule of lands selected by them; that since January 1, 1903, a number of Cherokee citizens have made applications for allotments of lands embraced wholly or in part in the aforesaid schedules, claiming to have been for years in the possession of the lands asked for and to own valuable improvements thereon, and that no Delaware citizen has ever occupied such lands or owned any improvements thereon; that a number of Delaware Indians, since the filing of said schedules and the opening of the allotment office, have made requests to be 'Allowed to make final selections of land containing their improvements and upon which they reside, claiming that no portion of the lands occupied by them is included within the said Delaware segregation;' that the Commission "has been advised that there are 'numerous other Delaware citizens whose improved lands are not included within the said segregation,' and 'whose property rights are thus unprotected.' Your Commission states, among other things, that it believes that the lands embraced in said schedule 'have not been selected with a due regard for the interests of either the Delaware citizens generally or other citizens of the Cherokee Nation.' The schedules of lands so selected by the Delaware Indians were not transmitted to nor formally approved by the Secretary of the Interior.

"The act referred to above imposes upon your Commission the duty of investigating and determining what lands are subject to segregation, and your Commission can not substitute the judgment of the Delaware Indians, or any of them, or anyone acting for them or any of them, for your own judgment in this matter. To be effective, the segregation must be approved by the Secretary of the Interior, and, pending such approval, your Commission should not proceed to allot any of the lands in the Cherokee Nation. When the segregation is made and approved, no application for allotment of any of the lands so segregated should he received by your Commission pending the determination of the suit in question.

"It seems clear that the list or schedule of lands does not meet the requirements of the statute in that it does not include all the lands which have been selected and occupied by Delaware, and in that it does include lands which no Delaware has selected and occupied, but to which other Cherokee citizens have claims, based upon alleged settlement and improvements thereon. You will therefore proceed at once to make such examination and investigation as will enable you to determine what tracts should be added to said list and what tracts now embraced therein should be excluded, care being taken to make the list cover the full quantity of land required to be segregated. You will, as soon as possible, report the results of such investigation, with suitable recommendations in the premises. In the meantime, and until the segregation shall have become effective, you will suspend all proceedings looking to the allotment of lands in the Cherokee Nation."

In your letter of October 29, 1908, the following statement is made:

"By letter of October 6, 1908, you were directed to make such examination and investigation as would enable you to determine what tracts of land should be added to the list of lands to be segregated for the protection of the Delaware Indians in the Cherokee Nation, and what tracts embraced in the list heretofore made out should be stricken there from. It is important that a final list should be made up and approved as soon as may be. It is equally important, however, that the interests of all concerned should be carefully respected and protected.

"In order that the Department may have a better understanding of the condition of affairs, and to the end that speedy action may be taken when you shall submit a new list for action by the Department, these further instructions are given: You will at your earliest convenience make up a list of the tracts embraced in the former list which, as shown by the records of your office, are claimed and occupied by Delaware Indians, and to which there are no adverse claims. You will make another list, which shall embrace all tracts claimed by Delaware Indians, but not included in the list heretofore presented to you. You will make a third list embracing the tracts included in the list heretofore presented, to which some Cherokee citizen, other than a Delaware, makes claim. You will transmit with each of these lists a statement of the condition of the tracts embraced therein, as to the occupancy thereof, and improvements thereon so far as the same are known to you, and will also recommend what action should be taken by the Department upon each of such lists.

"These instructions are not intended to supersede those of October 6, and you will therefore proceed upon any line of examination and investigation which may have been entered upon under those instructions."

It may be here said that when the last Cherokee agreement was finally ratified, August 7, 1902, and the way made clear to begin in a satisfactory manner the allotment of the lands of the Cherokee Nation, it was the desire of the Commission to commence that work with as little delay as possible; and January 1 following was fixed upon as a desirable date upon which to open the Cherokee land office and begin the work of allotment in the Cherokee Nation. But, as the suit between the Delaware and the Cherokee was still pending, it was necessary, under the law, to make the Delaware segregation before the general allotment of the Cherokee lands could begin. Anticipating delay in case the Commission had to proceed only upon the basis of its own records in making this segregation, recourse was had to adopting as the segregation a list of the required amount of land which had been filed, by agreement between Walter S. Logan, attorney for the Delaware, and William T. Hutchings, attorney for the Cherokee, before the Court of Claims in the suit then pending before that court.

Said agreement of counsel was as follows:

"In pursuance of leave reserved and granted by the court upon the final hearing of this case, it is hereby stipulated and agreed that the record herein be amended by substituting in the place of the incorrect descriptions given in the record herein of 157,600 acres selected and claimed by the Delaware the annexed descriptions, which, upon careful examination, have been found correct.

"And it is further stipulated and agreed that the court may, in its decision and final judgment herein, use the annexed correct descriptions in the place of the incorrect descriptions contained in said reports, provided, however, such substituted descriptions do not interfere with the lawful rights or claim of other Cherokee citizens.

WALTER S. LOGAN, Attorney for Petitioner.
WILLIAM T. HUTCHINGS, Attorney for Respondents

Washington, D. C,
December 10, 1902:

The proceedings in making the foregoing list had been, apparently, of a laborious and painstaking character. The record (p. 363-387, inclusive, and 736-777, inclusive, No. 21139, Court of Claims) shows that this was the third list made by the Delaware or by representatives of Delaware. This list, as has been seen, was accompanied by a proviso that "such substituted descriptions do not interfere with the lawful rights or claims of other Cherokee citizens," thus making provision for the correction of mistakes or wrongs; and, the document being concurred in by counsel, it seemed to give every reasonable assurance of being at least an approximately fair and correct list of lands and a safe agreement, and as such it was duly adopted by the Commission, and the Cherokee land office was opened January 1, 1903.

Certain minor clerical errors were found, and by agreement corrected; but soon after the opening of the Cherokee land office certain Cherokee citizens, not of Delaware blood, discovered, upon applying for the allotment of their homes and improved allotable lands, that the same land, in whole or in part, been included in the list in question, which, as stated, had been segregated by the Commission, and which for convenience will now be referred to as the Adams and Logan list.

This list is what may be termed a blanket list. It does not contain the names of the holders of the land, and there was no ready way for the people to learn its real character and composition until they applied at the land office for the allotment of their lands.

The Commission was equally dependent, so far as any information conveyed on the face of the list is concerned, upon what would be developed in the course of applications for allotment. If the homes and lawful holdings of Cherokee, not Delaware, had been put into said list arbitrarily, and without purchase or the knowledge or consent of such Cherokee, such facts would then appear.

But the Commission should have been put upon its guard by the omission of the names of the holders of the land, which omission was not made in the first list presented to the Court of Claims, previously referred to, and it should have checked said list with the improvement plats, showing the holders and possessors of the lands, very laborious though such work is. But such was our confidence in the integrity of an agreed upon descriptive list of property in dispute, formally presented to a court of the United States, and in the sufficiency and good faith of the proviso safeguarding "the lawful rights or claims of other Cherokee citizens," that our attention was not arrested by this omission of names and the necessity of the examination referred to did not at the time impress us.

When, however, the Commission permitted these Cherokee to give expression to what they deemed their "lawful rights and claims" by proceedings which were "applications" only in name, and were in fact but claims, we were assailed by an application for an injunction upon the ground that we were allotting land segregated for the Delaware, and we are informed that the members of this Commission are now made parties to a suit alleging great damages to Mr. Adams and his associates for proceedings of this character, but represented to be of a very different character.

It is needless to elaborate the fact that no such land was ever allotted or permitted, in the usual and proper sense of the term, to be even "applied" for, except in a very few instances by clerical error, which cases were promptly discovered and corrected. The words "application for an allotment," when used in connection with a proceeding of this kind, have been so used only for the lack of a more satisfactory expression, and they are likely to be misleading. These "applications" are a special class. They are, as has been stated, merely claims, which might be permitted to be made in any one of various ways; and which, after all, are simply protests by citizens against the taking of their land and a step toward presenting their "lawful rights or claims" which were presumably safeguarded by agreement between counsel.

The continued discovery of the inclusion of the homes and allotable lands of the Cherokee in the Adams and Logan list was as great a surprise to the Commission as it was to the Cherokee themselves, and it led to our communication to the Department of April 20, 1903, previously referred to.

We now send you a list, marked "A," which gives a partial idea of the extent of this wrong. Correcting certain errors found in an earlier list, and leaving out certain points in dispute, this list gives the names of 239 Cherokee citizens who, as original claimants, testify under oath that they are the sole possessors of their homes and allotable lands, which are found to be included, in whole or in part, in the Adams and Logan list. The extent of each citizen's property thus shown to have been taken without his knowledge or consent is given, and the total amount of this exhibit of land is 13,375.80 acres.

This, as indicated, is. however, but a partial statement of the case, for two-thirds of the Cherokee have not yet appeared at the land office.

In arriving at the total, however, of lands of Cherokee not of Delaware blood, included in the Adams and Logan list, there must be considered, not only the foregoing, and probably very much more land of Cherokee which appears to have been put into said Adams and Logan list without the knowledge or consent of the lawful holders of said land, but also considerable bodies of land of certain Cherokee which have been put into that list with the knowledge and consent of the holders.

Passing to the consideration of the grand total of land in the Adams and Logan list that is shown by our records to belong to Cherokee, not of Delaware blood, and including as a part the lands just referred to in Exhibit A, attention is now called to Exhibit B, herewith enclosed, which gives the names of all such Cherokee, their citizenship card numbers, and the lands, as per townships, shown as stated to be owned In* them. The aggregate of such land is 39,120.45 acres.

It is not to be assumed that all of this land will be revealed to have been put into the Adams and Logan list without the knowledge or consent of the holders as before indicated. Some Cherokee holders of large bodies of land are understood to have made trades with Mr. Adams by which their lands became included in the Adams and Logan list.

It was intended to send you a list of this land, grouped into totals of individual holdings, and we hope to send you such an arrangement of the data in a short time; but a present partial examination shows the following Cherokee citizens to be among the principal holders of these lands, and the amounts of their holdings:

A careful analysis of the Adams and Logan list shows the following to be the totals of lands of different classes constituting that list:

Total acreage of land of different classes found to constitute the Adams and Logan list of land, as per the records of the Commission.

The following quotations from correspondence gives the explanations of their list made by Mr. Adams and Mr. Logan. Mr. Adams makes certain business and statistical statements and offers terms of adjustment, and Mr. Logan justifies his list by a claim of legal right that is new to the Commission and, apparently, quite extraordinary in its character.

In this connection, in a letter addressed to the commissioner in charge of the Cherokee land office, December 7, 1903, Mr. Adams says:

" * * * For the information of the Commission, and for future reference, I hand you herewith a memorandum showing lands that I have purchased from certain Cherokee who formerly owned improvements thereon. These improvements belong to me. The land is put into the Delaware segregation and belongs to the Delaware Indians, subject to future determination of the Delaware council and the decision of the Supreme Court in the case now pending. The Delaware Indians contracted to pay me in land for services rendered in defending their interests. This they would prefer to do; but if for any reason they can not, then this land belongs to them and I will have to look to them to give me compensation for my services through other means. In any event, the lands described in the memorandum here-with enclosed do not belong to Cherokee citizens, said citizens having parted with their right to select the same by receiving cash consideration from me for what-ever rights they had in and to the lands and improvements. I can send you at any time you wish copies of the original deeds or bills of sale, or the originals themselves if need be.

"In addition to the lands in the enclosed list, I have some other lands, of which at this writing I have not prepared a memorandum. * * *

"If there is any way in which I can assist you or the Commission in regard to the segregation of the Delaware lands, I will be glad to render such aid as is in my power."

A copy of the list above referred to by Mr. Adams is enclosed.

In the same connection Hon. James K. Jones, as counsel for Mr. Adams, submitted December 23, 1903, the following proposition:

"Mr. Adams authorizes me to say that he holds the lands standing in his name in the agreed list of lands submitted for segregation for his people, the registered Delaware and the descendants of registered Delaware, and not for himself; that in acquiring these lands for the benefit of his people he has expended his own money, and that he believes his people will in the event of the establishment of their claim reimburse him for all such expenditures, as well as for his risks and services in their behalf.

"That for the purpose of inducing you to include these lands in the Delaware segregation for the benefit of his people, and subject to the action of the Supreme Court, he stands ready to, and hereby proposes to, convey ail such lands in any way that you may suggest to any committee of Delaware Indians to be selected by you or your Commission, to be held by them under the direction of your Commission for the sole benefit of the Delaware tribe of Indians.

"If under these safeguards you are willing to allow his people to have the benefit of these lands, bought with his money for their use, by including them in the Delaware segregation, he will at once execute such conveyance as you may suggest to any parties named by you. * * *"

On December 26, 1903, Mr. Adams wrote the Cherokee land office as follows:

"Enclosed I hand you copy of certain deeds and papers relating to the improvements I purchased on lands in the Cherokee Nation, which I desire to have segregated for the benefit of the Delaware Indians. Many of these papers are recorded in the records of improvements of the Illinois district. Such as are so recorded are so marked and such as are not recorded I have the originals in my office. These copies are not certified copies, but they have been carefully compared." I can, if you desire send the original papers to you at any time that you may require them.

''In looking over the list of the 302 claimants of the Delaware segregated land, I find that a large number were Delaware claiming their own land that was in the segregation. I also found that some of the hand said to be in the segregation was not, and some of the tracts were claimed by more than one Cherokee. I think when you come to examine this matter closely, you will find that very few of the 302 can show reasons why the land should not be included in the segregation."

To Mr. Adams's letter of the 7th of December, reply was made by the Commissioner in charge of the Cherokee land office on December 12, in part as follows:

"* * * As to the parties, some 300 in number, who have to date made claim that their occupied lands and homes have been, without their knowledge or consent, put into what has been called the Delaware segregation, such parties as commonly referred to are those who have made such complaint in person or, in some instances, in writing when information of the disposition of their lands has reached them, and none of them are of Delaware blood, nor do they make any claim as Delaware, but care will be exercised to see that no improper representations of this character prevail. * * *

"You are welcome to appear at this office in person or by representative and to consider and make suggestions and representations in regard to every tract of land in anyway connected with these proceedings. In renewing the offers of this office to extend to you every facility within its power, I must call attention, however, to the fact that this business is already greatly delayed and other interests immensely inconvenienced chiefly by reason of the nature and character of the list heretofore presented by yourself and Mr. Logan for segregation, that the preliminary work has continued since early in October, and now this office is directed to make final report to the Commission as soon as possible. It seems probable that there will be very few instances in which any difference of opinion can exist as to what class any tract of land comes under. If it is of an excluded class, that of course would settle the question; and as the classes to be included have been defined by the Commission, this should make your review of the segregation, with your knowledge of the lands you are particularly interested in, a very brief labor and one that you can readily complete before this office makes its report. I hope to report to the Commission within not exceeding ten days; and, as heretofore, all the data is open to your inspection."

To the letter above referred to from Hon. James K. Jones reply was made from the Cherokee land office December 26. After reviewing the matter to date and reciting that Mr. Adams had telegraphed his intention to be at Tahlequah on December 21, that reply contains the following language:

"* * * Mr. Adams did so appear on that date, and he exhibited a bundle of papers, which he said were bills of sale of land or improvements he had bought, and which he said he would leave with this office. He was told that the originals would be returned to him as soon as copies could be made, but he failed to leave the papers.

"On the 22d instant, at Muskogee, 'Mr. Adams made to me the same statement about leaving the bills of sale, but he did not leave them, and to this date he has furnished the Commission no evidence of the persons from whom he acquired these lands, upon what terms, or by what authority, except such general statements as I have enumerated. he does not avail himself of the repeated offers of access to all of our records in this business, nor does he submit any evidence that the lands he claims are not rightfully held as shown by our improvement plats and other evidence of record. He can not reasonably ask the Commission to delay without limit, nor expect to gain his case by simply making complaint and withholding the evidence.

"In answer now more specifically to your proposal, as at present advised I do not see that this office under its instructions can accede to the proposition.

"As you say, Mr. Adams extended his own money under a belief that his clients would 'reimburse him,' etc. In other words, be indulged in a business transaction and apparently with a view of the law respecting the making of the Delaware segregation greatly at variance from that held by the Commission. According to the doctrine laid down by Walter S. Logan, counsel for the Delaware, and according to the way the Adams and Logan list of land for segregation now seems to have been made up, there was no need for Mr. Adams to expend his money except for his personal benefit and profit. Mr. Logan, in his letter of December 3, says:

'"The agreement between the Delaware and the Cherokees of April 8, 1867, provides that--

" 'The selection of the lands to be purchased by the Delaware may be made by said Delaware in any part of the Cherokee Reservation east of the said line of 96, not already selected and in the possession of other parties.'

"The Delaware, therefore, are to make their own selections.

"The selections they have made are on file with you. The only question that can arise, therefore, is as to whether any part of the lands so selected were 'already selected and in the possession of other parties,' within the meaning of the agreement.

"The phrase 'already selected and in the possession of other parties' refers, of course, to the date of the agreement, that is, April 8, 1867. If it is claimed, therefore, that any part of these lands were not open to the Delaware to select, it must be because on April 8, 1867, they had been 'already selected and in the possession of other parties' who are now churning them. It is not enough that the lands should have been 'selected.' They must have been not only 'selected,' but in the actual 'possession of other parties.'

"* * * we are entitled to have segregated to us the lands which we have selected and which were not on April 8, 1867, 'already selected and in the possession of other parties,' and such other lands as we may hereafter select in the place of those which it may determine were on that date 'already selected and in the possession of other parties.'

"Also, according to our record, some 16,000 acres of land belonging to nearly 300 Cherokees was thus arbitrarily put into that list for segregation. All this casts grave doubt upon the correctness of the status of Mr. Adams's lands as defined by him. * * *

"I do not enter upon other features of the case, such as the power of the Commission to make such an arrangement, the effect of encumbrances upon the land, and the inevitable perversion of the Commission to functions of a personal and private character, such as the excess holding of land and the collection of debts that have no security in law. It does not appear necessary to go into these matters, except to suggest them, for, so far as my duty is concerned, Mr. Adams' transaction, in principle and from the beginning, seems to me to be contrary to what I am directed to recognize as lawful, except in so far as he may he able to show selections in which he is personally interested as a registered Delaware, or as an heir of a registered Delaware to the extent of 160 acres of land per capita, as laid down in the resolution."

In regard to the memorandum of lands referred to in Mr. Adams' letter of December 7, it should be stated that it did contain the names of the persons of whom he alleges he made purchases of land or improvements, and also the dates of said purchases.

The alleged copies of bills of sale sent with Mr. Adams' letter of December 26 are found to relate to the same lands, which are enumerated in the memorandum.

The "some 16,000 acres of land belonging to nearly 300 Cherokees," just referred to, is a statement based on a list of land in the Adams and Logan list, and of Cherokee claimants of the same, furnished at one time to Mr. George S. Chase, for Mr. Adams. It includes the 13,375.80 acres of Exhibit A, and it is the same land also to which Mr. Adams refers in his letter of December 26, 1903, where, in an effort to explain this obvious attempt to appropriate the property of other people, he makes the following statement:

"In looking over the list of the 302 claimants of the Delaware segregated land, I find that a large number were Delaware claiming their own land that was in the segregation. I also found that some of the land said to be in the segregation was not, and some of the tracts were claimed by more than one Cherokee. I think when you come to examine this matter closely you will find that very few of the 302 can show reasons why the land should not be included in the segregation."

Concerning this statement and explanation of Mr. Adams's, reference has already been made to Exhibit A, giving the names of 239 Cherokees whose sworn testimony, on file, contradicts him, as do our plats, as to 13,357.80 acres. There is not a line of evidence contradicting this testimony except Mr. Adams's opinion that "very few, can show reasons why the land should not be include in the segregation;" and copies of alleged bills of sale presented by him for 260 acres, said bills of sale bearing date March 29, 1899, August 14, 1899, and January 27, 1900, all prior to the date of the Commission's improvement plats, which plats do not show him to own or occupy any of said land; and he is further contradicted by the sworn testimony of George W. Waller, father of Goldie J. Waller (Cherokee card 5458), Sallie Taylor (Cherokee card 5494), Susan Swan (Cherokee card 5595), Daisy D. Byrd (Cherokee card 5452), and Henry H. Byrd (Cherokee card 5473), all clearly shown, so far, to be the lawful occupants of this land. As to the rest, Mr. Adams presents nothing but an unsupported opinion of his own and a desire to take the land.

The original list of this class of land was for 10,489.78 acres, claimed by 298 persons. That included, not evidenced at the time, 1,198.62 acres claimed by 19 persons, listed as Delaware, not desirous of being involved in the Delaware dispute and requesting to be allowed to exercise their rights as Cherokees. Enclosed is a list of these persons and of their lands, marked "Exhibit C."

Also enclosed find list "D," showing the lands of all Delaware, registered and unregistered, included in the Adams and Logan list, without adverse individual claims, and given as found by town sites. Also find list "K," giving the same information, but arranged so as to show the amount of each individual's holdings.

But the original list now under consideration was found to contain in error 875.06 acres not in the Adams and Logan list, and there was also in error 990.80 acres by reason of certain tracts having been counted more than once, the same being claimed by two or more persons.

Instead, therefore, of the facts being as Mr. Adams indicates, the status of this matter is found to be as follows:

The foregoing indicates how unsustained are Mr. Adams's claims as to Cherokee lands shown to be included in the Adams and Logan list without purchase or the knowledge or consent of the lawful occupants of the lands. What it would amount to if full information were at hand as to the total of 39,120.45 acres of Cherokee holdings of all kinds found to be in the Adams and Logan list, we can not, of course, say at this time; but presumably it would amount to a very much larger acreage than has yet been revealed of this class of land.

What Mr. Adams claims under his alleged purchase of land or improvements, has, as far as the Commission can identify the same, no connection with the foregoing lands except as respects the 260 acres previously referred to.

As for his allegation that he bought his lands as a trustee for the Delaware, referred to particularly in the quoted correspondence with Hon. James K. Jones, investigation shows that all of said land was bought before the passage of the last Cherokee agreement, under which law we are operating, and that about one-third of it was bought even before the passage of the Curtis Act. And, again, if the doctrine of his chief legal adviser. Mr. Walter S. Logan, was a guide to him, there was, perhaps, not the slightest occasion to buy an acre of the land he desired to possess.

Mr. Logan's justification of these matters will now be considered.

While Mr. Adams makes unsupported statements and denies the facts, Mr. Logan, in speaking of the Adams and Logan list, denies nothing, but boldly announces the doctrine that--

"The Delaware, therefore, are to make their own selections.

"The selections they have made are on file with you. The only question that can arise, therefore, is as to whether any part of the lands so selected were 'already selected and in possession of other parties' within the meaning of the agreement.

"The phrase 'already selected and in the possession of other parties' refers of course to the date of the agreement, that is, April 8, 1867.

"* * * we are entitled to have segregated to us the lands which we have selected and which were not on April 8, 1867, 'already selected and in the possession of other parties.'" (Letter from Walter S. Logan to the Commission of December 8, 1903, copy enclosed.)

Mr. Logan's position need only be quoted to be understood. It hardly permits of comment.

There are few improvements in the Cherokee Nation of so ancient a date as the 8th of April 1867. This is particularly true of what is now the most populous and opulent part of the Nation. In view of these facts, and Mr. Logan's opinion, and the general disposition manifested by these gentlemen, we can hardly be surprised at the inclusion in their list, in one way and another, of nearly 40,000 acres of the occupied lands of Cherokee and also of some approved as well as unimproved town site property. We can only he surprised that Mr. Adams should deem it necessary to buy any property at all, that they did not attempt to take more, and that Mr. Logan, perhaps for color and support, should make the following statement, as he does at the close of his letter of December 3, in speaking of the views of the honorable and distinguished attorney for the Cherokee Nation, viz:

"I had a talk with Mr. William T. Hutchin[g]s in Washington yesterday on this matter, and his views and mine seem to be in entire accord in this matter."

It is thus, in part at least, that this remarkable attempt has been made to acquire and retain large bodies of the choice and improved lands and homes of the Cherokees.

The record in this matter at no point shows that Mr. Adams or anyone acted as trustee, or any authority for 'Mr. Adams or anyone to so act, or any act distinguishable from an effort to seize property improperly and an attempt of an excess landholder to cover up his excess holdings in the Delaware segregation; and, as a last resort, to try and transmute such excess holdings into some vague sort of community interest, all alike unlawful and improper.

The list of Delaware segregated land now submitted to you for approval has been compiled under the following construction of the law and the Department's instructions, and we see no conflict between them.

Departmental letter of October 6, 1903, says:

"The act referred to above imposes upon your Commission the duty of investigating and determining what lands are subject to segregation, and your Commission can not substitute the judgment of the Delaware Indians, or any of them, or anyone acting for them or any of them, for your own judgment in this matter. * * * It seems clear that the list of schedule of lands does not meet the requirements of the statute in that it does not include all the lands which have been selected and occupied by Delaware, and in that it does include lands which no Delaware has selected and occupied, but to which other Cherokee citizens have claims based upon alleged settlement and improvements thereon. You will therefore proceed at once to make such examination and investigation as will enable you to determine what tracts should be added to said list and what tracts now embraced therein should be excluded, care being taken to make the list cover the full quantity of land required to be segregated. You will as soon as possible report the results of such investigation, with suitable recommendations in the premises. * * *"

Departmental letter of October 29, 1903, says:

"By letter of October 6, 1903, you were directed to make such examination and investigation as would enable you to determine what tracts of land should be added to the list of lands to be segregated for the protection of the Delaware Indians in the Cherokee Nation, and what tracts embraced in the list heretofore made out should be stricken there from. It is important that a final list should be made up and approved as soon as may be. It is equally important, however, that the interests of all concerned should be carefully respected and protected.

"In order that the Department may have a better understanding of the condition of affairs, and to the end that speedy action may be taken when you shall submit a new list for action by the Department, these further instructions are given: You will, at your earliest convenience, make up a list of the tracts embraced in the former list which, as shown by the records of your office, are claimed and occupied by Delaware Indians, and to which there are no adverse claims. You will make another list, which shall embrace all tracts claimed by Delaware Indians, but not included in the list heretofore presented to you. You will make a third list embracing the tracts included in the list heretofore presented, to which some Cherokee citizen, other than a Delaware, makes claim. You will transmit with each of these lists a statement of the condition of the tracts embraced therein, as to the occupancy thereof, and improvements thereon so far as the same are known to you, and will also recommend what action should be taken by the Department upon each of such lists.

"These instructions are not intended to supersede those of October 6, and you will therefore proceed upon any line of examination and investigation which may have been entered upon under those instructions."

Section 22 of the last Cherokee agreement is as follows:

"Sec. 22. Exclusive jurisdiction is hereby 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 the allotment of lands."

Section 23 of said agreement provides, in the contingency that the Delaware segregation must be made, that--

"* * * the Commission shall cause to be segregated 157,600 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 8, 18677. * * *"

It seems perfectly clear that, if the Commission is to make the segregation before the final termination of the Delaware suit, it is referred definitely to the agreement of April 8, 1867, in order that, in discharging that duty, it may be sure that it is "including," in said segregation, as the law specifically requires, "lands which have been selected and occupied by Delaware in conformity to the provisions of their agreement with the Cherokees dated April 8, 1867."

No reference of similar questions to the courts, or even a reference of this identical question, can excuse us from the duty of construing the same law as respects our duty in making the segregation if it devolves upon us to so act in advance. The question as to whether we shall act in advance is an administrative question and not a legal question. If we must act, the legal duty is clear and mandatory. What may follow after the final decision of the courts does not enter into the legal question before us at this time. That is a consideration bearing more directly upon the administration phase of the question, and that is not now before us. We have gone, therefore, directly to the agreement of April 8, 1867, and to the facts of the present time, as best in evidence before us, to ascertain what lauds "have been selected and occupied by Delaware in conformity to the provisions of their agreement with the Cherokees dated April 8, 1867 * * "*"

The contingency of an allotment of land was definitely provided for in the agreement of April 8, 1867. Where there might he doubt, the text was parenthetically explained. The language is as follows:

"* * *; and in case the Cherokee lands shall hereafter be allotted among the members of said Nation, it is agreed that the aggregate amount of land herein provided for the Delaware, to include their improvements, according to the legal subdivisions when surveys are made, that is to say, 160 acres for each individual, shall be guaranteed to each Delaware incorporated by these articles into the Cherokee Nation, nor shall the continued ownership and occupancy of said land by any Delaware so registered be interfered with in any manner whatever without his consent * * *."

Then follows restrictions in these words:

"* * * that nothing herein shall confer the right to alienate, convey, or dispose of any such lands, except in accordance with the constitution and laws of said Cherokee Nation."

This agreement, upon which we are thrown as our guide in this matter, concludes as follows:

'* * * On the fulfillment by the Delaware of the foregoing stipulations, all the members of the tribe, registered as above provided, shall become members of the Cherokee Nation, with the same rights and immunities, and the same participation (and no other) in the national funds as native Cherokees, save as hereinbefore provided. And the children hereafter born of such Delaware so incorporated into the Cherokee Nation shall in all respects be regarded as native Cherokees."

The Commission is of the opinion that no land was "selected and occupied by Delaware in conformity to the provisions of their agreement with the Cherokees dated April 8, 1867," acting as Delaware, except such as has been selected and occupied by registered Delaware; and that said registered Delaware could and can only select, hold, or occupy, as Delaware, 160 acres for each individual so registered.

We find no right attaching to an unregistered Delaware to designate for or have included in the segregation any land of his own selection.

If an unregistered Delaware is occupying land acquired from one or more deceased registered ancestor, we do not feel constrained to refuse, and we do not refuse, to include said land in the segregation to the extent of not exceeding 160 acres selected and occupied by each of said deceased registered ancestors and held in continuous possession by said unregistered descendant. The same is true of the land of the ancestor of a descendant who is himself a registered Delaware.

This makes the holding of land somewhat cumulative in a few cases; but we have no desire to anticipate any question that can possibly be left untouched until the courts may render a final decision; and it has appeared to us that this course is permissible in the present instance, although it permits what as to other lands would be an excess and unlawful holding of land.

From this point we proceed to select land for the segregation from the available part of the public domain to an extent sufficient to make up the required segregation of 157,600 acres.

There are parts of the public domain, which we do not consider available for this segregation. These are such parts of the excess holdings of citizens as have of necessity been relinquished under the provisions of the last Cherokee agreement and the Curtis Act. They are scattered tracts of land, much in request by citizens for their individual allotments, the same being generally of high, and often of very great value; they are frequently clouded with conflicting claims of right of possession, and the Commission believes that, at best, to put such lands into the segregation would only serve as a means of excess landholding on the part of contiguous owners of land, an odious and vexations violation of law that the Commission is doing its utmost to break up, and which should under no circumstances be connived at or made possible. It is with extreme reluctance that the Commission has felt required to recognize the selections of even deceased registered Delaware in a way that permits of seemingly some abuse. But that at least is clearly recognized and defined, and it is permitted only as an unavoidable evil under the law and circumstances.

In accordance with the foregoing views the Commission, on the 10th instant adopted, after full consideration, the following resolution:

"Muscogee, Ind. T., December 10, 1903.

"Resolved, That the Delaware segregation shall consist:

"First. Of lands shown by the records of the Commission to be selected and occupied by living registered Delaware, in accordance with the treaty of April 8, 1867, to the extent of 160 acres per capita of said living registered Delaware, said 160 acres to contain, as far as may be, the principal improvements of said living registered Delaware;

"Second. Of lands shown to have been selected by a deceased registered Delaware under said treaty of April 8, 1867, to the extent of 160 acres per capita of land so selected and occupied and which is found now to be in the possession of a descendant of such deceased registered Delaware, said land to contain, as far as may be, the principal improvements of said deceased registered Delaware;

"Third. Of public land, in addition to the foregoing, sufficient to make up a total of 157,600 acres for this segregation.

"The commissioner in charge of the Cherokee land office is directed to prepare a list of the foregoing lands as soon as possible, and to report to the Commission."

At the request of Mr. R. C. Adams and his counsel, Hon. James K. Jones, the question of what should be included in the Delaware segregation was again considered on the 22d instant, when the Commission, after full consideration, adopted the following resolution:

"Resolved, That after hearing argument in regard to making the Delaware segregation, the Commission concludes not to change the instructions heretofore given in regard thereto. The lands of the public domain placed in said segregation shall be as far as possible such as will not serve as a means of excess land holding by individuals for their personal profit."

It is upon these lines that the segregation as now submitted to you has been made. As our plats and data were not made with a special view to compiling a list of this character, the task has involved an amount of office and fieldwork and necessitated a consumption of time difficult of appreciation by one not actually charged with the undertaking. Whatever may be its defects this much can be assured, that according to our information and data no man has been done injustice and no man has been unduly favored.

The following information may be of interest to the Department:

The property in approved town sites, found to be included in the Adams and Logan list, is as follows:

The property in town sites not yet approved, found to be included in the Adams and Logan list, is as follows:

In reviewing our data, we seem to have supplied all the tables the Department desired, except a separate enumeration of the Delaware and the land claimed by them omitted from the Adams and Logan list. This involves a very lengthy search of the plats and comparison of data. We will try to supply it. This is true, however, that we have exhaustively searched the plats and the citizenship records, and sent out special field parties, both as to people and land, to make sure that no Delaware or his lawful quota of land is omitted from the list of segregated land we now send you, and we recommend that said list be approved, as curative, as set forth in the exhibits and in this report, of the evils now so patent to the Department and the Commission. This, it may be said, would be in effect an approval of all the work set forth in this report and the accompanying lists or exhibits, for, in addition to what is included in the present list of segregated lands, as just stated, it involves the rejection of every acre of land improperly included in the Adams and Logan list, which rejected lands, as already shown, amount to 136,995.21 acres.

A claim has been made with much stress that the Government paid, in 1890, $1,000,000 of the tribal funds to the Delaware in the Cherokee Nation; that it was upon the condition that they use the money so obtained in paying for their lands and improvements in the Cherokee Nation; that first, one half of the sum was paid, and then, upon assurance that the money was being used in the way indicated, the other half was paid, and that thus an obligation was incurred or recognized, fairly operative now, to let individual Delaware hold, subject to the final decision in the Delaware-Cherokee suit, all the land they are found to be in possession of, or, at least, to segregate, as far as may be, such land as of the public domain.

The Department is doubtless better informed in regard to this transaction than the Commission. The contention, however, has not impressed the Commission as being well founded.

In the first place, there is no evidence before the Commission that this was other than a payment of tribal funds pro rata among the then recognized claimants, with only a care to see that the recipients would use the money judiciously. This might well be done under any construction of the rights of the Delaware in the Cherokee Nation; and, in the light of this act, the Department, at a subsequent date, took a distinctly opposite view from the one now contended for respecting the rights of these Delaware, as set forth in the opinion of First Assistant Attorney-General Campbell, October 5, 1897, addressed to and approved by Secretary Bliss.

It is urged that these lands are of the best lands, and that those now taken from the public domain by the Commission are, generally speaking, of much lower grade and value.

This is true. It is also true that if the Commission could find average land, avail-able for this segregation, it would, as a matter of justice both to the Delaware claim-ants and the Cherokee Nation, select such land to complete the segregation to the amount required by law.

The Delaware, however, having failed to exercise or continue the operation of their distinctive rights under the contract of April 18, 1867, can not now ask the Commission to act for them in a way disassociated from mandatory conditions which have arisen. We include all the land that we consider they are, as Delaware, law-fully occupying. If they have improved land in excess of what they are considered entitled to as Delaware, they, under the practice of the Commission, can and do still have such land set aside for them, in addition to what we reserve from the public domain, to the value of 110 average acres, the allotable right and interest of a Cherokee. Every Delaware not found in possession of land is recognized in what is taken from the public domain, and still he also can at any time have reserved for him a regular Cherokee allotment.

It seems clearly too much to ask in the name of generosity or fair dealing that, in addition to all this, we shall select lands contiguous to those holders of land, only to be held professedly in trust, but in fact for their individual benefit, lands, generally speaking, far in excess of the average value, while the remoter parts of the public domain which we do select, though rated low in the scale of values adopted for purposes of distribution, yet have a market value much greater than the $1 per acre paid by the Delaware for the tenure they contracted for.

In a separate communication we address the Department in regard to what may be necessary steps following the approval of the list of segregated lands now transmitted. Respectfully,

The Commission to the Five Civilized Tribes
TAMS BIXBY, Chairman,
T. B. NEEDLES,
C. R. BRECKINRIDGE,
Commissioners.
(Through the Commissioner of Indian Affairs.)

Allotment of Lands to Delaware Indians

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