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The area of the land holdings of The Five Tribes is given on page 252, together with reference to the treaties laws, or orders affecting the same.
The Chickasaw lands and the outboundaries of all the lands are surveyed.
The Chickasaw and Choctaw lands are held by them in common under their treaties, namely, the Choctaws own three-fourths of the rights and interests and the Chickasaws one-fourth. These lands were obtained from the United States under treaty, and patents in gross or to the nations have been issued for the shine. Whether these patents are in fee is a question. Still in all of these patents or the treaties under which they are made there is reserved a supervising power of distribution, at least by the United States.
The lands of The Five Civilized Tribes are among the most valuable in the United States and form one of the watered sections in the country.
No lands can be disposed of by the Indian nations or tribes or individuals in Indian Territory. The United, states must approve or concur in title to lands in this territory. There are no public lands therein coming within the provisions of the settlement or disposition laws. No act of Congress has brought any portion of the lands of the territory under the operation of any public land laws. Persons entering’ Indian Territory as settlers and claiming land under the public land laws of the -United States become intruders and trespassers.1
United States Land Patents To The Five Tribes Or Nations
The following statement is taken from the report of the Commissioner of Indian Affairs for 1890, pages xxxiv and xxxv: patents have been issued to the Cherokee, Choctaw, and Creek Nations for the tracts respectively defined by treaty stipulations as follows:
December 31, 1838, to the Cherokee Nation forever, upon conditions, one of which is “that the lands hereby granted shall revert to the United. States if the said Cherokees become extinct or abandon the same”.
March 23, 1842, to the Choctaw Nation, in fee simple to them and their descendants, ” to inure to them while they shall exist as a nation and live on it, liable to no transfer or alienation, except to the United States or with their consent “. [The. Chickasaw lands are embraced in this patent.]
August 11, 1852, to the Muskogee or Creek tribe of Indians “so long is they shall exist is a nation and continue to occupy the country hereby conveyed to them “.
The title therefore of the Cherokees, Choctaws [Chickasaws], and Creeks to their lauds is not the ordinary Indian title by occupancy, but is a base, qualified, or determinable fee, with only a possibility of reversion to the United States. (United States v. Reese, 5 Dill., 405), and the authorities of these nations may cut, sell, and dispose of their timber, and may permit mining and grazing within the limits of their respective tracts by their own citizens.
The general allotment act provides that the law of descent and partition in force in the state or territory where such lands are situate shall apply to all allotments made under said act after patents therefor have been executed and delivered; and that the laws of the state of Kansas regulating the descent and partition of real estate shall, as far Its practicable, apply to all lands in the Indian Territory which may he allotted under the provisions of said act.
The Seminole lands are held by them under treaty of purchase from the Creeks, confirmed by the United States.
The question of allotment in The Five Tribes is one which will probably have to be settled under special authority of Congress.
The lands of The Five Tribes are known among them as “public domain”, and are held in common. Occupation of lands for any purpose gives a possessory or occupancy title, which can be defended in the tribal courts. A person running a furrow with a plow around a tract of land holds all within the same, and in case it covers a road or public highway the road must be changed and pass around the tract. Abandonment of lands so held for a term, 2 years usually, throws it back into the public domain, to be used or occupied by a new occupant.
No titles are recorded. Occupancy titles to lands can be sold by one citizen of a nation to the others, bat no such title or lands can be sold by a citizen of any of the nations to a citizen of the United States. Enormous areas of lands belonging to The Five Tribes are now held by individuals under this system for their own use, and these men are usually found to be opposed to allotment. The Creeks and Cherokees are affected more than the others. Principal Chief J. B. Mayes of the Cherokee Nation, in his fourth annual message, November 4, 1890, thus referred to the absorption of the public lands by citizens. He says:
The settlement of public domain has become one of the greatest questions that concern our people. When the Cherokees were greatly a pastoral people the land was prized for the grass and cane which furnished ample food for their stock and the land valued on account of the natural growth it furnished for the subsistence of one’s herds, then the settlement of the public domain was an easy problem. But today the Cherokees are an agricultural people; wheat, corn, cotton, fruits, and vegetables are produced in abundance for exportation. Large wealth is now being accumulated in tilling the soil, so much so that our valuable lauds will soon be taken up and put in cultivation, thereby making permanent and happy homes. Hence this important question presses itself upon your consideration. The strong, energetic, and wealthy class of our citizens will naturally get possession of oar rich lands and monopolize the use of the same, Our forefathers in the formation of this government wisely looked to this day and engrafted in the constitution a provision by which this monopoly could be restrained.
At this time this monopoly has grown to be an evil that demands your immediate action. The information I have from many parts of the country is that individuals have become so infatuated with the accumulation of improvements that single persons claim as many as 30 farms: The country in some sections is literally fenced in without a pass way. While you should encourage every citizen to make and own good farms and become large tillers of the soil, there should certainly be a limit to this greed. You should teach the people that every one has an equal interest in this our common country, and when they properly understand and fully appreciate this great family government and estate, they will then know that a few citizens can not fence up and own the entire country.
The way in which this monopoly is greatly carried on is by our citizens entering into pretended leases of the land to noncitizens for a number of years, which is plain-violation of the laws of this nation. The citizen is to get all improvements after the noncitizen gets the use of the land, and in many ins Lances after the laud is nearly worn out. The citizen, as a general thing, has never in rested a dollar in this transaction. I am also informed that a land office business is being carried on between noncitizens in buying and selling these leases. You can at once see the great evil and danger that will be entailed on the country by this unscrupulous action of our own citizens. I am of the opinion that you are justified in resorting to extreme measures to relieve our country of this curse.
In the same message Chief Mayes says:
The national council has never assumed the sole right of disposing of lauds belonging to the Cherokee people.
The treaty of 1866 was a result of the civil war and forced upon this nation as an alternative fur something worse. The Cherokees submitted to and ratified it, whereby an agreement was made for the sale of the Cherokee lands west of [meridian] 96 for the settlement of friendly Indians; but this idea has long since been abandoned by the United States government. The original intention to reserve the entire Indian Territory for the Indians, as at first inaugurated by such men as Jefferson and Jackson, was still provided for in the treaty of 1866 and carried out in good faith by that great man General Grant at the close of the late war; but this faith was broken and. violated in the organization of the United States territory of Oklahoma in the midst of the Indian country. Under these circumstances the Cherokee Nation must consider the full and complete ownership of these lauds, and if ever sold it must be by all means at a price equal to the value, either by a constitutional amendment or by the modification of the treaty of 1866 in a manner that will make the sale to the government instead of to friendly Indians. This can, perhaps, be effected if the Cherokees so desire it, and by following this line of policy the sale, if made at all, should be made under the shelter of treaty stipulations, which treaty stipulations the Cherokees can never afford to lose sight of as a safeguard in their dealings with the government of the United States.
Our people should feel proud and thankful that such distinguished men as Senators Butler, Teller, Ingalls, and Dawes and others have the manhood to openly declare on the floor of the United States Senate that this land is the property of the Cherokee Nation, and that we have the right to live upon it and keep it forever, and if we choose, to sell it; that we are entitled to its value.
A distinguished senator remarked in a speech in the United States Senate that the Cherokee commissioners came to this country with a proposition in ” one hand and a sword in the other” to buy our land for $1.25 per acre, which is worth from $3 to $5 and even $10 per acre, Politics should not enter into your deliberations on this question, as it is a matter of pecuniary interest to every citizen alike. A division and political strife on this subject may cause the nation to lose millions of dollars. Whatever is done, let us come together as one family and agree for the best.
The allotment of 160 acres of land to a person would be possible in all of The Five Tribes except the Seminole. In the Seminole tribe or nation it is probable that the land holdings, namely, 375,000 acres, will be about enough to give each Indian an allotment, with but little, if any, surplus for sale or other disposition. In the other nations there will be an excess for sale, en a basis of 160 acres to each person. The surplus will depend ou the area to be allotted, and whether or not all will take alike as to acreage, men, women, and children, heads of families or not.2
The following is the form of proclamation warning intruders out of a tribe or nation. It was posted on trees, houses, or fences in the Chickasaw Nation.
Notice-To All Persons Who Reside In The Chickasaw Nation Contrary To Law Or Without Authority Of Law
Notice is hereby given to citizens; of the United States who reside in the Chickasaw Nation that they must obtain their permit sin the manner and within the time prescribed by the laws of the said Chickasaw Nation, and must comply with all laws of the said nation.
Now, under and in accordance with the instructions from the Commissioner of Indian Affairs, notice and warning Is hereby given to all persons who reside in the Chickasaw Nation contrary to law or without authority of law that they must remove with their, movable property from within the Chickasaw Nation and the Indian Territory by of before the first day of November, 1800, and that any crop or crops that maybe planted by them in the Chickasaw Notion will be so planted at their own risk.
Lao E. Bennett
United States Indian Agent.
Union Agency, July 21, 1800. ↩
In a Senate report., Fifty-second Congress, first session, No. 1079, can be found a table of land holdings per capita in The Five Tribes. ↩