Letters, Telegrams, Petitions 51-60

No. 51

Department of the Interior,
Commission to the Five Civilized Tribes,
Muscogee, Ind. T., November 11, 1903.

The Secretary of the Interior, Washington, D. C.

Sir: It is desired to call the attention of the Department to the action heretofore taken by the Commission relative to the segregation of Delaware lands, and to submit herewith the further recommendations of the Commission in the premises, to wit:

The first direction to make a segregation of such lands is found in the act of Congress approved June 28, 1898 (80 Stat. L., 495), section 25 of which provides:

"That before any allotment shall be made of lands in the Cherokee Nation, there shall be segregated there from by the Commission heretofore mentioned, in separate allotments or otherwise, the one hundred and fifty-seven thousand six hundred acres purchased by the Delaware tribe of Indians from the Cherokee Nation under agreement of April eighth, eighteen hundred and sixty-seven, subject to the judicial determination of the rights of said descendants and the Cherokee Nation under said agreement. That the Delaware Indians residing in the Cherokee Nation are hereby authorized and empowered to bring suit in the Court of Claims of the United States, within sixty days after the passage of this Act, against the Cherokee Nation, for the purpose of determining the rights of said Delaware Indians in and to the lands and funds of said nation under their contract and agreement with the Cherokee Nation, dated April eighth, eighteen hundred and sixty-seven; or the Cherokee Nation may bring a like suit against said Delaware Indians; and jurisdiction is conferred on said court to adjudicate and fully determine the same, with right of appeal to either party to the Supreme Court of the United States."

Subsequently, it was enacted in section 2.S of the act of Congress, approved July 1, 1902 (32 Stat. L., 716), 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."

Pursuant to the authority granted in section 25 above quoted, suit was brought by the Delaware Indians against the Cherokee Nation, in the Court of Claims of the United States (No. 21139), for the purpose of adjudicating the rights of said Delaware Indians to share in the allotment of lands and in the division of funds in the Cherokee Nation, under the terms of their contract with the Cherokee Nation, made April 8, 1867. The Court of Claims, on February 2, 1903, rendered a judgment dismissing said suit, whereupon an appeal was taken to the Supreme Court of the United States, where said appeal is now pending.

On December 16, 1902, there was filed with the Commission an amended schedule of lands purporting to comprise the 157,600 acres scheduled and claimed by the Delaware Indians in the Cherokee Nation, under their said contract. Annexed to said schedule was a stipulation, by and between the attorneys for both parties to said suit, to the effect that said schedule embraced the 157,600 acres of land scheduled and claimed by the Delaware, and that upon careful examination the descriptions in said schedule had been found correct.

On December 17, 1902, relying on said stipulation and believing said schedule to be satisfactory to all the parties in interest, the Commission adopted the following resolution:

''Be it resolved by the Commission, That the acting chairman cause to be set aside and segregated 157,600 acres of land in the Cherokee Nation, in accordance with the provisions of section 23 of the act of Congress approved July 1, 1902 (Public No. 241), subject to disposition according to such judgment as may 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 stipulation of counsel for parties in said case, dated at Washington, D. C, December 10, 1902."

In compliance with said resolution the said segregation of Delaware lands was accordingly made December 17, 1902, and entered on the maps and plats of the Commission. The Commission subsequently found numerous errors and discrepancies in said schedule, to which the attention of counsel for both parties was directed in a letter dated January 5, 1903. There upon a "second amended schedule" was filed with the Commission on January 23, 1903. This second amended schedule, which is simply the former schedule with certain alterations and corrections, contains the same agreement heretofore mentioned between the attorneys, with an additional stipulation as follows:

"We agree to the corrections herein in ink on pages 2, 4, 9, 12, 14, 42, 51, 54, 63, 72, 73, 74, being 2 corrections on pages 9, 42, 46, 63, and 1 on each of the other pages, subject to the above proviso.

WALTER S. LOGAN, Attorney for Petitioners.
Wm. T. HUTCHINGS, Attorney for Respondent, "
By J. J. HEMPHILL.

January 13, 1903

Upon the filing of this second amended schedule the lands described therein were, on January 23, 1903, accepted and adopted by the Commission as the segregation of Delaware lands which the Commission was directed to make in said section 25 above quoted. A copy of this schedule is transmitted herewith.

Since the making and adoption of the latter segregation, however, it has been found that the counsel failed to correct all the errors and discrepancies to which their attention was directed. Such errors consist largely of improperly including in said schedule certain lands which are also embraced within the limits of certain town sites reserved under section 24 of said act of July 1, 1902 (32 Stat. L., 716.)

It has also been found since the adoption of said segregation that there are lands outside of the segregation, but within the limits of the Cherokee Nation, which are occupied by Delaware who own the improvements thereon, and that there are lands within the segregation which are occupied by Cherokees who own the improvements thereon.

Accordingly it is believed that an amendment ought to be made to said segregation at the proper time embodying all the corrections which shall be found necessary.

Inasmuch as it has been held by the supreme court of the District of Columbia, in the case of Bullette v. Hitchcock etal., that the approval of the Secretary of the Interior is necessary to the validity of any such segregation which the Commission may make, it is respectfully recommended that the action of the Commission relative to the adoption of said segregation be approved by the Department and that at the proper time the necessary corrections be embodied in an amendment to be added to said schedule and likewise approved by the Department. Respectfully,

Commission to the Five Civilized Tribes
TAMS BIXBY, Chairman
T. B. NEEDLES, Commissioner.
C. R. BRECKINRIDGE, Commissioner.

(Through the Commissioner of Indian Affairs.)

No. 52

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

The Secretary of the Interior

Sir: Referring to Department letters of October 6 and 29, 1903, and to office report of even date, there is enclosed herewith a report from the Commission to the Five Civilized Tribes, dated November 14, 1903, explaining the occasion of the Commission's report of November 11, 1903, recommending that the Department approve of the segregation of Delaware lands as made by the Commission December 17, 1902, as subsequently amended. The Commission's report now transmitted is of considerable length, and is simply an argument to the effect that the Department should approve of said segregation as made by the Commission. The Commission considers that the segregation should be approved, the approval to relate back to the date the segregation was made by the Commission in order that the work heretofore performed by the Commission in connection with allotting Cherokee lands may not be of no avail.

The approval of the segregation at this time, the Commission says, would relate back to the date the segregation was made by it, and that the segregation would become effective from that date. This Office does not consider that there can be any question but that the approval of the alleged segregation by the Department would relate back to the date it was made by the Commission, and as this seems to be the substance of the Commission's letter, and considering that it was made in duplicate, the Office does not believe that it is necessary to enter into any discussion thereof. Attention is respectfully invited, however, to the fact that the Commission does not refer to or mention either of Department letters above referred to.

As stated in Office report of this date, the Commission has not complied with the directions contained in these letters, and the Commission's report is submitted for such action as you may be pleased to take thereon. Very respectfully,

W. A. Jones, Commissioner.

No. 53

Department of the Interior,
Commission to the Five Civilized Tribes,
Muscogee, Ind. T., November 14, 1903.

The Secretary of the Interior, Washington, D. C.

Sir: The Commission having recommended in its letter of November 11, 1903, that the Secretary of the Interior approve the segregation of Delaware lands heretofore made and adopted by the Commission, it is fitting that the reasons for such recommendation should be stated.

Reference is made to section 25 of the act of June 28, 1898 (80 Stat. L., 495), which section is quoted in full in said letter. It provides that before any allotment shall be made of lands in the Cherokee Nation there shall be segregated there from by the Commission the 157,600 acres of laud purchased by the Delaware from the Cherokees under their agreement of April 8, 1867. Further provisions on the same subject were embodied in section 23 of a subsequent act of Congress, approved July 1, 1902 (32 Stat. L., 716), which section is also quoted in said letter.

In endeavoring to carry out the directions contained in the two sections above mentioned the Commission made a segregation of Delaware lands on December 17, 1902, as set forth in said letter.

Certain errors and discrepancies having afterwards been found in the schedule of lands segregated on that date, the Commission, on January 23, 1903, corrected and amended said schedule of lands constituting the Delaware segregation; and this corrected schedule has been since treated by the Commission as the legal segregation of Delaware lands made under and by authority of the provisions of law above mentioned.

It was subsequently held, however, by the supreme court of the District of Columbia, in the case of Bullette et al. v. Hitchcock et al., that the approval of the Secretary of the Interior is necessary to the validity of any segregation which the Commission may make. Hence it is desired that the Secretary approve said segregation of December 17, 1902, as corrected and amended on January 23, 1903; since, if it be held invalid for want of such approval, it is the same as if no segregation had been made. It would then be necessary to make a segregation de novo and, as it is provided in section 25 aforesaid that the segregation shall be made before any allotment of lands in the Cherokee Nation, a question might arise as to the validity of all allotments of lands made in said nation since the opening of the land office; and it is deemed prudent to avoid anything that might even tend to invalidate the great volume of work heretofore done by the Commission in making such allotments.

Such approval would be governed by the same principles as the ratification by a principal of an unauthorized act of his agent, the general rule in such cases being that--

"The ratification operates upon the act ratified precisely as though authority to do the act had been previously given, except where the rights of third parties have intervened between the act and the ratification." (Cook v. Tullis, 18 Wall., .332-342.)

By analogy to such rule the approval of the Secretary of the Interior herein referred to would relate back and give the segregation the same effect as if it had been authorized by him at the time of its making. In other words, the approval would be retro-active and take effect as of the date of the segregation.

The principle of ratification as above set forth applies also to the unauthorized acts of public officers which are afterwards ratified or approved by a superior officer or governing body. (See Mechem on Public Officers, sec. 557-558; 10 A. and F. Enc. L., 1st ed., p. 471. )

Now, as to the exception mentioned in said rule in favor of the intervening rights of third persons, it is not believed that any person could acquire rights between the making of the segregation and its approval which would be so vested that it would not be permissible, under the authority vested in the Commission and the Secretary of the Interior, to disturb them. Full explanation is given of the reasons for this position in another part of this letter, where the question of amending the segregation is considered.

The persons particularly affected by the segregation of the Delaware lauds are (1) those Cherokee citizens who occupy lands upon which they own improvements within the segregation and (2) those Delaware who occupy lands upon which they own the improvements outside of the segregation. It is not believed that a large number of persons are included in either of these classes, but their rights could be amply protected by amending the segregation from time to time so as to exclude the lands of class one from the segregation and include those of class two therein. In any event, the disadvantages following the course herein outlined would be trivial as compared with the irreparable damage to the whole body of Cherokee citizens which would result from the invalidation of all the allotments made in the Cherokee Nation up to this time.

We come now to a consideration of the question of amending or correcting the segregation after it has been once made and approved. The general rule, subject to some exceptions, is that an amendment will relate back to the date of the matter amended. (See Heath v. Whidden, 29 Me., 108; Sanger v. Newton, 134 Mass., 308.)

Thus clerical mistakes in the names of parties may he corrected or a new defense may be added by amendment, or where evidence not within the issue is offered and admitted the pleadings may be amended to conform to the evidence. It is also held by some courts that an amendment in a suit will relate back to the date of the filing of the original declaration or complaint, so as to prevent the setting up of the plea of the statutes of limitations. (See Smith v. Bellows, 77 Pa. St., 441.)

No reason is seen why the amendment to the segregation as suggested should not be valid as against all persons except such third parties, if there be any, who have acquired rights between the making of the segregation and of the amendments thereto. Are there any such persons having intervening rights in Cherokee lands which are so vested that it would not be permissible to disturb them? The word "right" is here used as referring to an interest in lands, and is synonymous with an estate. What, then, is a vested estate? A vested estate is an immediate fixed right of present or future enjoyment. (See 4 Kent Com., 202.)

Preston says: "A vested estate is an interest clothed with a present legal and existing right of alienation." (1 Preston on Estates, 65.)

We have, then, at least two elements necessary to constitute a vested estate: (1) A present fixed right of enjoyment and (2) a present right of alienation.

Applying these principles, can it be said that any citizen of the Cherokee Nation has any vested right or estate in any of the allotable lands of said nation prior to the issuance of a patent? We think not. His right is simply in the nature of an expectation of future benefit or interest, and not a present fixed interest which is subject to alienation. If prior to the issuance of a patent a Cherokee citizen acquires vested rights by having his enrollment as a citizen approved by the Secretary of the Interior, then it would be clearly beyond the power of the Secretary to rescind his approval, or to strike the name of such citizen from the final rolls. Yet the Secretary has frequently exercised the power of rescinding his former approval of the enrollment of Cherokee citizens and of striking their names from the final rolls now being made by the Commission. Presumably, this power is exercised by him under the authority of a line of decisions of the United States Supreme Court holding, in similar cases, that until the matter is closed by final action the Secretary of the Interior may correct, reverse, or vacate any act or decision made by himself or by any subordinate officer under his supervision. A few of the decisions of said court touching upon this question are hereinafter cited.

Exclusive jurisdiction in all matters relative to the allotment of lands is conferred by law upon the Commission, subject to the supervision and control of the Secretary of the Interior, and all proceedings by the Commission relative to the allotment of Cherokee lands must receive his approval to be valid. Up to this time no patents have been issued for any allotable lands in the Cherokee Nation, arid no allotments of such lands have been approved by the Secretary of the Interior. Even if the Secretary had approved any matter or proceedings relative to the allotment of such lands, it is held by the court in the case of Bullette v. Hitchcock et al. (supra), that he would still have authority to correct, modify, or vacate the same. In support of its opinion the court cites the case of Knight v. United States Land Association (142 U. S., 161-178). In that case the Commissioner of the General Land Office approved the survey of certain land involved in the action, and although no appeal was taken from such approval the Secretary of the Interior subsequently set the survey aside. It was claimed that his action was illegal. In passing upon this question the court, speaking through Mr. Justice Lamar, said:

"The statutes in placing the whole business of the Department under the supervision of the Secretary invest him with authority to review, reverse, amend, annul, or affirm all proceedings in the Department having for their ultimate object to secure the alienation of any portion of the public lands, or the adjustment of private claims to lands, with a just regard to the rights of the public and of private parties."

Reference is also made to the case of New Orleans v. Pain (147 U. S., 261-266), which involved the power of the Secretary of the Interior to set aside a survey of the public lands already approved and to approve a subsequent survey thereof. In that case Mr. Justice Brown, delivering the opinion of the court, said:

"If the Department was not satisfied with this (the first) survey, there was no rule of law standing in the wav of its ordering another. Until the matter is closed by final action, the proceedings of an officer of a department are as much open to review or reversal, by himself or his successor, as are the interlocutory decrees of a court open to review upon the final hearing."

See also Williams v. United States (188 U. S., 514, 523-524); Hawley v. Diller (178 U. S., 476, 488, 490); Michigan Land and Lumber Co. v. Rust (168 U. S., 589, 592, 594-595); Beley v. Naphtaly (169 U. S., 358, 364); Brown v. Hitchcock (173 U. S., 473, 476-478); United States ex rel. v. Hitchcock (190 U. S.), decided May 18, 1903.

In view of the powers of the Secretary of the Interior in respect to the supervision and control of matters within his jurisdiction, as such powers are defined in this unbroken line of authorities, it is difficult to see how any person could have any rights in Cherokee lands, prior to the issuance of a patent, which are so vested that it would not be permissible to disturb them by amending the Delaware segregation.

If it be considered as established that the Secretary could, as a matter of law, approve the Delaware segregation heretofore made by the Commission, and that such approval would relate back to the date of the segregation approved, and could correct or amend such segregation, without interfering with the vested rights of any person, then it is believed that, as a matter of expediting the work of allotment in the Cherokee Nation, it ought to be done.

Respectfully,
TAMS BIXBY, Chairman.
(Through the Commissioner of Indian Affairs.)

No. 54

Department of the Interior,
Washington, November 19, 1903.

The Assistant Attorney-General for the Interior Department.

Sir: The Department is in receipt of a report from the Commissioner of Indian Affairs, dated the 18th instant, in which reference is made to departmental letters of October 6 and 29, 1903, relative to the segregation of the lands claimed by the Delaware Indians, and inclosing a report from the Commission to the Five Civilized Tribes, dated November 11, 1903, transmitting what appears to be a "second amended schedule of lands selected by the Delaware in the Cherokee Nation as per stipulation of counsel."

The Department is also in receipt of another communication of even date from the Commissioner of Indian Affairs, transmitting a report from the chairman of said commission relative to the matter.

Inasmuch as said departmental letters were prepared in your office, said report and enclosures are transmitted herewith, with a request that you give the Department your opinion and advice in the premises and the action which ought to be pursued. Respectfully,

THOS. RYAN, Acting Secretary

No. 55

Department of the Interior,
Office of the Assistant Attorney-General
Washington, November 25, 1903

The Secretary of the Interior

Sir: With report of November 11, 1903, the Commission to the Five Civilized Tribes submitted a schedule of lands selected by the Delaware Indians, in the Cherokee Nation, to be segregated under the provisions of section 23, of the act approved July 1, 1902 (32 Stat. L., 716), and under date of November 14, 1903, the chairman of the commission submitted a further report. The matter has been referred to this office by note of November 19, 1903, in which, after a reference to departmental letters of October 6 and 29, 1903, it is said:

"Inasmuch as said departmental letters were prepared in your office, said reports and enclosures are transmitted herewith, with a request that you give the Department your opinion and advice in the premises and the action which ought to be pursued."

April 20, 1903, the Commission made a report of its action under said section 23 of the act of July 1, 1902 (supra), in which it was said that a schedule of lands selected by the Delaware had been accepted by the Commission as a proper list to the segregated. It was further stated, however, that the Commission had been advised that there are "numerous other Delaware citizens whose improved lands are not included within the said segregation;" that a number of Cherokee citizens had made application for allotments of lands embraced in said schedule, claiming to have been in possession of such lands, and that no Delaware citizen ever occupied such lands or owned any improvements thereon, and that the lands embraced in said schedules "have not been selected with due regard for the interests of either the Delaware citizens generally or other citizens of the Cherokee Nation."

While the Department had this report under consideration, suit was begun in behalf of the Delaware Indians to enjoin the Secretary of the Interior from in any manner interfering to change said list, and a temporary restraining order was issued. Upon final hearing of the case this temporary order was discharged and the injunction denied. Thereupon the Department, October 6, 1903, issued instructions to the Com-mission to the Five Civilized Tribes, in which it was said:

"It seems clear that the list or schedule of lands does not meet the requirement 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."

October 29, 1903, further instructions were given, as follows:

"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."

The list now submitted is the same as that before presented to the Department, and the Commission still says that there are errors in that list and that "an amendment ought to be made to said segregation at the proper time, embodying all the corrections which shall be found necessary." They, however, recommend that the list as it now stands be now approved, leaving the corrections to be made hereafter.

So far as appears from the papers submitted, the Commission has taken no action under the instructions of October 6 and 29. The Department is still without any definite information as to the extent of the errors in this list or as to the number of people affected thereby. The statements made are general and indefinite, to the effect that numerous Delaware citizens are not protected by said list, and that a number of Cherokee citizens are affected there by. The information is altogether too indefinite to enable the Department to determine the seriousness of the errors in said list. It was evidently to obviate this difficulty that the instructions of October 29 were given.

If the Department approves the schedule submitted it will do so with the knowledge that it is inaccurate and with the understanding that steps should be taken at once to make corrections. Under these conditions I am not prepared to advise approval of said list at this time. If the Commission shall hereafter submit reports under the instructions heretofore given it, which show that the errors are few and of small consequence, it may well be that the Department will be justified in giving its approval of the list as it now stands and making the corrections afterwards. If, how ever, such reports should show that the errors are numerous, and a large number of people are affected thereby, the Department would not, in my opinion, be justified in adopting this schedule before corrections were made. My advice, therefore, is that the Commission be instructed to make the reports called for by letters of October 6 and 29, in order that the Department may be more fully advised in the premises and in a position to take intelligent action. The papers submitted are returned herewith.

Very respectfully,
F. L. CAMPBELL, Assistant Attorney-General.

Approved: E. A. HITCHCOCK, Secretary

No. 56

Washington, November 25, 1903.

Dawes Commission, Muscogee, Ind. T.:

Referring your report 11th instant concerning selection of Delaware lands, I have this day approved opinion Assistant Attorney-General, recommending that you make the reports called for by departmental letters October 6 and 29 last. Copy of said opinion follows by mail, with letter of advice.

E. A. HITCHCOCK, Secretary

No. 57

November 28, 1903.

Gentlemen: There is enclosed herewith copy of a communication from the Assistant Attorney-General, dated November 25, 1903, approved by me same day, concerning your report dated November 11, 1903, submitting a schedule of lands selected by the Delaware Indians in the Cherokee Nation, to be segregated under the provisions of section 23 of the act approved July 1, 1902 (32 Stat. L., 716), and referring to the report of the chairman of the Commission, dated November 14, 1903, concerning the same matter.

Reference is made by the Assistant Attorney-General to departmental instructions of October 6, 1903, wherein you were directed to "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."

The instructions contained in departmental letter of October 29, 1903, directing you to transmit three lists, are quoted by the Assistant Attorney-General, and it is expressly stated that said instructions were not intended to supersede those of October 6, from which the above quotation is made.

No special directions were given you in either of said letters as to the manner or method in which you should make the investigation desired.

It is believed by the Department that your Commission, with its trained and experienced employees, can secure the information and make the reports called for by said departmental instructions of October 6 and 29 without serious difficulty or great delay. It will be necessary that the list of the lands to be segregated shall contain all the "lands which have been selected and occupied by Delaware in conformity to the provisions of their agreement with the Cherokees dated April eighth, eighteen hundred and sixty-seven," and if the amount of such lands should not equal the 157,600 acres required by law to be segregated, then there should be included in said list other lands not occupied or claimed adversely by Cherokees not Delaware.

It seems to be imperative that the list of Delaware lands submitted by you for segregation should contain all the lands duly "selected and occupied " by the Delaware. It certainly will not be difficult to secure satisfactory reports of the condition of those tracts of land not included in the previous list which are claimed by Delaware, nor does the Department believe that it will be necessary for your Commission to have formal hearings to determine the rights of adverse claimants to tracts selected and occupied by the Delaware. Whether a tract of land is "occupied" or not can be ascertained by actual inspection, and if occupied the essential facts relative to such occupancy, sufficient for the purpose to be attained, can probably be discovered by intelligent inquiry. In this connection it should be borne in mind that, for obvious reasons, expedition in the matter is of great importance. It will be sufficient if you secure satisfactory reports from your trusted employees, which will enable you to present a list of 157,600 acres containing all the lands selected and occupied by Delaware, provided the same do not exceed the amount of 157,600 acres required by law to be segregated, and in like manner you can obtain the information which will enable yon to transmit the other lists referred to in said departmental letters.

You will therefore proceed as soon as possible to carry out the instructions of the Department in the manner above indicated.

The papers transmitted with your letter of November 11 are also enclosed, together with copies of the reports of the Commissioner of Indian Affairs, transmitting the same.

Respectfully, E. A. Hitchcock, Secretary.
The Commission to the Five Civilized Tribes

No. 58

Department of the Interior,
Washington, November 38, 1903.

The Commissioner of Indian Affairs

Sir: Enclosed herewith for your information is a copy of departmental letter of even date sent to the Commission to the Five Civilized Tribes, directing it to make report concerning segregated Delaware lands in the Cherokee Nation. Respectfully,

THOS. RYAN, Acting Secretary

No. 59

Department op the Interior
Washington, December 10, 1903

Commissioner of Indian Affairs

Sir: There is enclosed herewith for your information a copy of the opinion of the Assistant Attorney-General for the Department, under date of November 25, 1903, in the matter of the segregation of lands selected by Delaware Indians in the Cherokee Nation under act of July 1, 1902 (32 Stat. L, 716). Said opinion was approved by the Secretary.

Respectfully,
THOS. RYAN, Acting Secretary

No. 60

Department of the Interior, Office of Indian Affairs,
Washington, April 30, 1903.

The Secretary of the Interior

Sir: There is transmitted herewith the report of the Commission to the Five Civilized Tribes relative to the work of the Commission performed during the month of March, 1903. The Commission, in transmitting this report to the Office, included therein what they no doubt considered a copy of said report, but upon examination the Office finds that the same is not a copy, but does seem to be a copy of the Commission's report of the work performed by it in the month of February 1903.

There is enclosed herewith the copy of said February report which has been on file in the Office, so that the Department can compare this February copy with the intended copy of March, 1903. The attention of the Commission should be called to this matter and a copy of the report furnished by it for the tiles of this Office. The Office concludes, of course, that there was simply a mistake in transmitting what was supposed to be a copy of the enclosed report, and which in fact is not a copy thereof, and yet it will be noticed that the word "February" in said copy has been erased and the word "March" substituted therefor.

In connection with the transmittal of these papers, the Office has to report that there are now on file in this Office and undisposed of the following citizenship cases:

There is also one Creek land contest case on file in the Office, that of Ross Hawkins v. Ellen Hawkins, Which was appealed from the decision heretofore rendered therein and is now awaiting the decision of the Department in the matter of the application of said Ross Hawkins for citizenship in the Creek Nation.

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