Letters, Telegrams Petitions 174-177

No. 174

Department of the Interior

Washington, January 13,
The Commissioner of Indian Affairs

Sir: The Department is in receipt of your report dated January 12, 1904, transmitting therewith a report from the chairman of the Commission to the Five Civilized Tribes, dated January 6, 1904, forwarding the report of the Commission, dated December 31, 1903, relative to "the Delaware segregation."

You state that "the report and schedules, together with the previous correspondence relating to this subject, have been carefully considered, and I can not recommend the approval of the schedules." You also state that one copy of the Commission's report of December .31, 1903, has been retained by your office; that all the other papers received with the chairman's report of January 6, except the copy of the Commission's report informally furnished the Department, are enclosed therewith.

You have not given the Department any reasons why you "can not recommend the approval of the schedules." In view of the very great importance of a proper determination of this matter, you are requested to make further report and to state therein specifically the reasons why said schedules ought not, in your judgment, to be approved, in order that the Department may be fully informed in the premises.

You are requested to make your action special in this case.

Respectfully,
E. A. HITCHCOCK, Secretary

No. 175

Department of the Interior,
Washington, January 13, 1904

The Assistant Attorney-General for the Interior Department.

Sir: The Department is in receipt of a communication from the Commissioner of Indian Affairs, dated January 12, 1904, transmitting a report of the chairman of the Commission to the Five Civilized Tribes, dated January 6, 1904, forwarding a report of the Commission, dated December 31 last, concerning the Delaware segregation.

Inasmuch as the instructions to the Commission were prepared in your Office, I have to request your opinion whether the schedules submitted have been prepared in accordance with the directions of the Department, and whether they ought to be approved.

The report of the Commission and the schedules have been made in triplicate, one copy of the report being retained in the Office of the Commissioner of Indian Affairs. A copy of the communication of the Commissioner, a copy of the letter of the chairman of the Commission, the report of the Commission, one copy of each of the papers transmitted therewith, are enclosed for your consideration.

Action is requested as early as practicable.

Respectfully,
E. A. HITCHCOCK, Secretary

No. 176

Department of the Interior,, Office of Indian Affairs,
Washington, January 15, 1904.

The Secretary Of The Interior

Sir: The Office is in receipt of Department letter of January 13, 1904, in which the office is directed to give specific reasons why the schedules transmitted by the Commission on January 6, 1904, and forwarded "with Office report of January 12, relating to the Delaware segregation, should not in the judgment of the Office be approved.

In reply attention is respectfully invited to the Commission's report of December 31, 1903, "concerning said schedules, and the statements therein contained seem to this Office to be sufficient reasons to prevent the approval of said schedules. The Office will not attempt at this time to review all of the statements contained in said report, which indicate to it that the schedules ought not to be approved, and will therefore only invite attention to such statements therein as are considered by the Office of more than ordinary importance in indicating that the schedules do not comply with the requirements of the law.

The Delaware-Cherokee agreement of April 8, 1867, provides among other things:

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

Section 23 of the Cherokee agreement, ratified August 7, 1902, which is the only Cherokee agreement that was ratified by the tribe and confirmed by Congress, declares that the Delaware Indians, who are members of the Cherokee Nation, shall share in the distribution of lands and funds of the Cherokee tribe, as their rights may be determined by the Court of Claims or the Supreme Court of the United States in the suit authorized to be brought by section 25 of the act of June 28, 1898, and that if said suit has not been determined by the court before the Commission is ready to begin the allotment of the lands belonging to the Cherokee Nation "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, 1867, such lands so to remain subject to disposition according to such judgment as may be rendered in said cause."

On page 30 of the Commission's report of December 31 last, the following appears:

"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."

The lands referred to by the Commission as of the best grade are those included in the segregation or alleged segregation as made by the Commission or as claimed to have been made by the Commission December 17, 1902, as subsequently modified by agreement between the attorneys representing the Cherokee Nation and the Delaware, respectively, January 23, 1903. Referring to the above quotation from page 30 of the Commission's report, attention is invited to the fact that the Commission on this page of said report also says:

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

The Commission here states that the lands included in the schedules now under consideration, at least that part selected from the public domain, is of an inferior grade, and such admission appears to this office to be an indication that "a matter of justice" has not been accorded the Delaware Indians.

The Office did not recommend the original segregation. It was transmitted with office report of April 30, 1903, and the position was taken that it was the duty of the Commission to investigate and determine whether the lands segregated by them were in the possession of the Delaware citizens. The Commission also says:

"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 have reserved from the public domain, to the value of 110 average acres, the allotable right and interest of a Cherokee."

This office understands that it is the duty of the Commission under the law to segregate the 157,600 acres "selected and occupied by Delaware;" that the "practice of the Commission" has nothing whatever to do with the matter, and that the law governs. It is also said:

"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."

With this statement the Office does not agree. It does not now and never has believed that a registered Delaware has any right to share in the residue of Cherokee lands remaining after the Delaware segregation shall have been made. However, this is a matter to be determined by the court and not by the Commission, this office, or the Department, and the above remarks are made simply for the purpose of pointing out the inconsistency of the Commission's report in this particular.

On page 12 of the Commission's report of December 31 last the following appears:

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

From the above it will be readily seen that of the lands in the alleged original segregation 115,471.5:3 acres are not claimed by Cherokee citizens, and of this amount 17,102.44 acres is public domain; yet the Commission, as shown by page 28 of their report, has only included in the schedules under consideration 20,609.45 acres of the land in the alleged original segregation, which is only 3,507.01 acres more than the area of public domain contained in the original segregation. Page 28 of the Commission's report shows than 136,995.25 acres of the land included in present proposed segregation were not included in the original segregation, and page 30 of said report shows that these lands were selected from the public domain, and, as hereinbefore stated, it is also shown on the page last mentioned that said lands are of an inferior quality.

Much stress is laid upon the opinion of the First Assistant Attorney-General for the Interior Department, now Assistant Attorney-General for the Department, of October 5, 1897, in which the present contentions of the Delaware were considered as untenable. Said opinion the Office does not understand has anything whatever to do with the duties of the Commission in the premises. It was rendered long prior to the Cherokee agreement and several months before the passage of the Curtis Act. Since the passage of the Curtis Act the powers, duties, and obligations of the Commission, in so far at least as the Delaware segregation is concerned, have been plain, and in fact mandatory.

On pages 23 and 24 of the Commission's report the position is taken that it is the duty of the Commission to construe the meaning of the Delaware-Cherokee agreement of April 8, 1867, and that "the legal duty is clear and mandatory." It appears to the Office that this is the very question that is now pending before the Supreme Court of the United States in the Delaware-Cherokee suit, and that the Delaware will share in the Cherokee lands in accordance with the construction put upon said agreement by the court and not in accordance with the construction put upon said agreement by the Commission. As was said by this Office in report of April 3, 1903, it does not believe that the Department or the Commission has anything to do with the effect which the segregation may have on the final determination of the suit now pending, and that it is not believed " that to comply by the Commission with the statutory directions" will "in anywise prejudice the rights of either party in interest." "The Commission seems" to be of the opinion that R. C. Adams by purchasing improvements on Cherokee lands, alleged by him to be for the benefit of the Delaware, "has revealed as the most ingenious, persistent, and comprehensive scheme under the pretext of the 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." At the same time, on page 11 of their report, the following appears:

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:

Adams claims to have purchased these improvements for the benefit of the Delaware Indians and not for his own personal benefit or gain.. In fact, the Commission's report shows that on December 23, 1903, with reference to this subject, Hon. James K. Jones, as counsel for Mr. Adams, advised the Commission as follows:

"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 all 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."

On the other hand, to illustrate, it appears that Francis B. Fite is holding possession of 2,579.98 acres of land in the Cherokee Nation. Mr. Fite and the members of his family may be entitled to lands to this extent, but it is hardly probable that the members of any one Cherokee family will be entitled to such an area "of the best lands" of the Cherokee Nation, and section 18 of the Cherokee agreement declares that it shall be unlawful after ninety days from the ratification of the agreement for any member of the tribe to hold possession of more lands in value than that of 110 acres of the average allotable lands of the Cherokee Nation, either for himself or for his wife, or for each of his minor children, if members of said tribe," and section 19 thereof provides that any person convicted of so holding excess lands shall be punished by a fine of not less than $100, and that each day upon which such offense is committed or continued shall be deemed a separate offense.

It is believed proper to remark that in the opinion of this Office the Commission to the Five Civilized Tribes should be directed to ascertain and report whether the persons mentioned in their report, or any other person or persons, are holding more lands than they and the members of their family are entitled to.

The Commission to the Five Civilized Tribes seems to be of the opinion that the Delaware Indians should have selected the lands they intended to take in accordance with the provisions of the Delaware-Cherokee agreement at the time they removed to the Indian Territory, shortly after April 8, 1867.

It appears that the Commission has entirely overlooked the fact that the Cherokee Nation was not surveyed until nearly thirty years subsequent to the date of said agreement, and in fact the survey was not finally completed until more than thirty years after the date of that agreement had elapsed. The survey was first authorized by the act of Congress approved March 2, 1895 (28 Stat. L., 876-900), and the field work, the Office is advised by the Geological Survey, was not completed until about July 1, 1898, consequently the Delaware Indians or Cherokee citizens could not prior to that date have selected their lands by legal subdivisions.

The Commission's report shows that of the land contained in the alleged original segregation 115,471.53 acres is not claimed by any person other than a Delaware Indian, unless the 11,103.63 acres claimed by unidentified persons is claimed by Cherokee, and the 17,102.44 acres public domain is also so claimed, but such claim is not shown by the Commission's report; yet of this area but 20,609.45 acres are included in the new schedules, and this fact is in itself, the Office believes, sufficient to prevent the approval of the schedules transmitted with Office report of January 12, 1904.

On page 20 the Commission quotes from a letter from Walter S. Logan of December 3, 1903, as follows:

"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.

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 says:

"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 he surprised at the inclusion in their list, in one way or another, of nearly 40,000 acres of the occupied lands of Cherokees, and also of some approved, as well as unapproved, town-site property. We can only be 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. Hutchings in Washington yesterday on this matter, and his views and mine seem to be in entire accord in this matter.'

"It is true in part, at least, that this remarkable attempt has been made to acquire and retain large 1 bodies of the choice and improved lands and homes of the Cherokees."

The Delaware-Cherokee agreement of 1867 authorized the Delaware Indians to "select" Cherokee lands not in the possession at the date of the agreement of any other person. Section 23 of the Cherokee agreement refers to these lands as those which "have been selected and occupied by Delaware. " From the provisions of the Delaware-Cherokee agreement of 1867 and those of the Cherokee agreement ratified August 7, 1902, it is evident to this Office that the Delaware Indians have the right to select the 157,600 acres they are supposed to have purchased from the Cherokee Nation, and that they may select said lands in any part of the Cherokee Nation east "of said line of 96 degrees" unless such lands have been selected by some other person.

As to Mr. Logan's statement that the Delaware are, under the provisions of the agreement of 1867, entitled to take lands "already selected and in the possession of other parties," the Office has to say that it does not believe that this statement is borne out by either of these agreements. It appears that the Delaware Indians, as herein fore stated, and also Cherokee citizens, could not select their lands by legal subdivisions until about July 1, 1898, and it is not believed that Delaware citizens have the right to select lands now in the possession of other parties unless it is conclusively shown that such lands were, prior to the selection by other parties, selected by the Delaware. There does not appear to have been any time limit fixed by the agreement of 1867 in which the Delaware should make the selection referred to.

In view of the foregoing, as stated in office report of January 12, I can not recommend the approval of the schedules transmitted with that report.

Very respectfully,
W. A. Jones, Commissioner.

No. 177

Department of the Interior,
Office of Indian Affairs,
Washington, January 15, 1904.

The Secretary of the Interior

Sir: The Office is in receipt of Department letter of January 13, 1904, transmitting a copy of a resolution of the Senate of January 11, 1904, directing the Department to transmit to it copies of the report of the Commission to the Five Civilized Tribes, dated November 11, 1903, "of allotment of lands and segregation of lands in the Cherokee Nation to the Delaware Indians * * * and all other papers relating to such allotments and segregation."

You request that I transmit to the Department immediately copies of any papers on file in the Office desired by the Senate.

In reply, I have the honor to advise you that a careful search of the records and correspondence of the Office has been made, and it appears there from that all of the original papers and the originals of office reports, or office letters relating to this subject, are in the possession of the Department except the following, to wit. Agent Shoenfelt's report of August 11, 1903: office letter of August 22. 1903, to Agent Shoenfelt: office telegram of September 22. 1903, to the Commission to the Five Civilized Tribes; letter of Isaac Secondine and others, dated September 11, 1903:

office reply thereto of September 22, 1903, and office letter of October 6, 1903, to the Commission to the Five Civilized Tribes, copies of which are enclosed.

Search of the records and correspondence of the Office from November 15, 1890. to date was made.

Very respectfully,
W. A. JONES, Commissioner

Department of the Interior,
United States Indian Service, Union Agency,

Muscogee, Ind. T., August J 1, 1903.

The Commissioner of Indian Affairs

Sir: I have the honor to state that I am in receipt of a communication from Richard C. Adams, the representative of the Delaware Indians, dated Washington, August 6, 1903, advising that he has been informed that certain leases have been taken in the Cherokee Nation, some covering lands claimed by Delaware Indians and marked on the maps of the Commission to the Five Civilized Tribes as Delaware segregated lands.

Mr. Adams encloses a map which purports to show the segregated lands as claimed by the Delaware Indians; also a petition for injunction against the Commission to the Five Civilized Tribes and the Secretary of the Interior, together with a temporary restraining order granted by Justice Anderson.

Mr. Adams states that he files a protest against my approving or recommending for approval any leases in the Cherokee Nation, where the same will conflict or in any manner infringe upon lands claimed by the Delaware Indians or included in tracts marked in red upon the map sent by him to me.

The map, petition, and temporary restraining order will be retained in the files of this office.

I shall be pleased to receive any instructions that the Department may have on this subject.

Very respectfully,
J. B. Shoenfelt,
United States Indian Agent

Department of the Interior, Office of Indian Affairs,
Washington, August 22, 1903.

J. Blair Shoenfelt, Esq.,
United States Indian Agent, Union Agency, Muscogee, Ind. T.

Sir: I am in receipt of your letter of the 11th instant saying you have received a communication from Richard C. Adams, the representative of the Delaware Indians, dated Washington, August 6, advising you he had been informed that certain leases have been taken in the Cherokee Nation, some covering lands claimed by the Delaware Indians and marked on the maps of the Commission to the Five Civilized Tribes as Delaware segregated lands; that Mr. Adams enclosed you a map which purports to show the segregated lands as claimed ly the Delaware Indians, also petition for injunction against the Commission to the Five Civilized Tribes and the Secretary of the Interior, together with a temporary restraining order granted by Justice Anderson, of the supreme court of the District of Columbia. Mr. Adams states to you that he files a protest against your approving or recommending for approval any leases in the Cherokee Nation which will conflict or in any manner infringe upon lands claimed by the Delaware Indians or included in tracts marked in red upon the map sent by him to you.

You say the map, petition, and temporary restraining order will be retained in the files of your office, and that you will be pleased to receive any instructions the Department may have to give you on the subject.

The injunction proceeding alluded to by Mr. Adams is pending in the supreme court of the District of Columbia, and the Department has raised the question of the validity of the so-called segregation by the Commission to the Five Civilized Tribes. I hope the matter will be determined in the court in the near future, but in the meantime, in case leases are submitted to you covering the lands shown by Mr. Adams's maps as claimed by the Delaware Indians, that fact should be reported in connection with your submission of the lease or leases to this Office through the United States inspector for Indian Territory.

Very respectfully,
W. A. Jones, Commissioner
(Through the United States Indian Inspector for Indian Territory.)

[Telegram.]

Department of the Interior, Office of Indian Affairs,

Washington, September 23, 1903.
The Commission to the Five Civilized Tribes, Muscogee, Ind. T.:

Referring to your telegram of September 21. Original register of Delaware Indians incorporated into the Cherokee Nation under agreement of 1867 has been lost or mislaid. Office has copy of the register of said Delaware heretofore in possession of the Cherokee authorities, presumed to be now in your possession, which was made from that register and certified to by executive secretary of the nation June 20, 1893. Also has Pratt's list of Delaware Indians, with a description of their lands, the value thereof, and the valuations of the improvements thereon, who elected to remove to the Indian country. Can not make certified copy, but will loan you either register.

A. C. TONNER, Acting Commissioner

Nowata, Ind. T., September 11, 1903.

The Commissioner of Indian Affairs:

We, the undersigned registered Delaware, respectfully request that you cause our lands to be segregated in accordance with the treaty between the United States and the Cherokee Nation adopted on or about the 6th day of August, 1902. Our reasons for the request are as follows: The law requires it, and it is necessary for our protection.

It is necessary for our protection because the Delaware are not allowed to file on their land till a suit now pending in the Supreme Court is decided, while others are at liberty to file on our land, and it has been done in several instances, and the only redress we have is to begin a contest, which is very expensive and which some of us are not able to do.

It is also necessary from the fact that much land has been segregated that is not now or ever was Delaware land, but is excessive holdings among Cherokees, and is as a consequence wrongfully and unlawfully withheld from allotment, thereby depriving the Delaware, who have an insufficient amount of land, from getting what is justly theirs.

Respectfully submitted.

ISAAC SECOXDINE.
JAS. RANDALL.
L. T. ESTES.
C. E. BRATCHER.
LUELLA C. ROBERTS
BEN CONNOR.
LUCINDA HICKS.
FRANK RANDALL.
MARY WEAVER.
JULIA HALL.
MARY NAIRN

Department of the Interior, Office of Indian Affairs,
Washington, September 22, 1903.

Isaac Secondine and others, Nowata, Ind. T.

Gentlemen: The Office is in receipt of your communication of September 11, 1908, requesting that it cause to be segregated, in accordance with the provision of law the lands occupied by the Delaware.

In reply, you are advised that the matter relating to the segregation of Delaware lands is now including before the Supreme Court of the District of Columbia, and that this Office or the Department can take no action in the premises until such time as the court shall have rendered a decision.

Very respectfully,

A. C. TONNER. Acting Commissioner

Department of the Interior, Office of Indian Affairs,
Washington, October 6, 1903.

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

Gentlemen: The Office is in receipt of your communication of October 8, 1903, requesting that the certified copy in the possession of the Office of the original register of Delaware Indians incorporated into the Cherokee Nation under the agreement of 1867 be forwarded to you.

You state the Commission has heretofore had the use of a copy of this register, which was borrowed from a private individual; that he has called upon the Commission for the return of the same, and it has therefore become necessary for you to secure a copy of the register for your official use.

In reply, you are advised that the certified copy of the register mentioned has been transmitted to you this date, under separate cover, by registered mail.

This copy was furnished the Office July 6, 1893, by the then acting United States Indian agent, Leo Bennett. The copy is certified to under date of June 20, 1903, by John L. Adair, the then executive secretary of the Cherokee Nation. His certificate bears the seal of the nation and is in the following language:

"I, John L. Adair, executive secretary, do hereby certify that the list of names hereto attached of the Delaware Indians incorporated in the Cherokee Nation under agreement of April 8, 1867, is a correct transcript of the record in this department as taken from the original list.

"Attest my hand and the seal of the Cherokee Nation."

You are requested to return the register for the files of this Office as soon as you shall have finished with it.

Very respectfully,
A. C. TONNER, Acting Commissioner.

Allotment of Lands to Delaware Indians

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