Letters and Forms No. 121

No. 121

Department of the Interior, Commission to the Five Civilized Tribes,
Muscogee, Ind. T., October 7, 1903.

The Secretary of the Interior

Sir: Receipt is hereby acknowledged of departmental letter of September 28, 1903, requesting the Commission to report relative to the charges made by Mr. R. C. Adams, representing the Delaware Indians, concerning the acceptance of applications by this Commission after the receipt of notice of the order of the supreme court of the District of Columbia in the case of George Bullette et al. v. E. A. Hitchcock et al., and inclosing the communication of Mr. Adams making said charges, together with the copy of the report of the Commissioner of Indian Affairs thereon.

In reply thereto the attention of the Department is respectfully called to the report of the chairman of the Commission under date of October 2, 1903, relative to the same matters of which Mr. Adams complains in the letter which the Department transmits in its letter of September 28, 1903.

As said in that report of the chairman, at no time since the land office has been opened in the Cherokee Nation has it been the intention of the Commission to receive final applications for allotments of lands which were embraced in the Delaware segregation, but simply to allow those Cherokee citizens who claim to own improvements on lands which were included in the Delaware segregation to appear at the land office and make out their applications to select the land on which they claim their improvements, and hold the same suspended without any further action until the final determination of the suit of the Delaware Indians against the Cherokee Nation now pending in the Supreme Court of the United States; and it may be further said that as soon as this Office was advised of the injunction suit and that a restraining order had been issued against the honorable Secretary of the Interior and this Commission by the supreme court of the District of Columbia, orders were immediately issued to the land office for the Cherokee Nation to take no action, receive no application, and in fact do nothing touching lands embraced within the Delaware segregation, and these orders were strictly complied with in intention, but as in the order referred to in the report of the chairman of October 2, a notice was inadvertently sent to Mr. R. C. Adams relative to lands which were in the Delaware segregation, but as stated therein the lands embraced in said notice were not properly checked and it was permitted to go out by mistake, and not intentionally, and would have been caught later on in checking over the work at the land office. As therein stated, this mistake was immediately corrected upon receipt of departmental letter of September 17, 1903.

The attention of the Department is also invited to the report of the Commission of April 20, 1903, calling attention to the various inaccuracies in the description of the lands embraced in the Delaware segregation, and calling the attention of the Department to the difficulties encountered by reason of the improvements of Cherokee citizens not of Delaware blood having been included in the Delaware segregated lands, and asking that the Department take some steps to protect those Cherokee citizens not of Delaware blood whose improvements had been included in the lands segregated for the Delaware, and it was in furtherance of a desire and an intention on the part of the Commission to protect the interests of such Cherokee citizens that the policy of permitting them to appear at the land office and make application for their lands when it appeared they were included within the Delaware segregation, and holding the same suspended, awaiting the final action of the Supreme Court in the Delaware suit.

At no time has it been the intention or the desire of the Commission to in any way complicate the segregated lands, and the Commission can not at this time see that even if the suit now pending should be decided in favor of the Delaware Indians and their contention be finally sustained by the Supreme Court that these suspended applications would in any way tend to affect the lands within the segregation, for in that event no further action would be taken on suspended applications for lands in said segregation other than to refuse to accept them and approve them, which would leave the segregated lands unencumbered by any application and no necessity for a Delaware Indian to institute a contest.

There is enclosed herewith a copy of an instrument of writing executed on the 28th day of August, 1901, by and between George Smith, of the Cherokee Nation, Ind. T., and Richard C. Adams, of Washington, D. C., and John Bullette, of Claremore, Ind. T., wherein the said George Smith supports to lease upon certain representations for himself and as guardian of William B. Smith, Mark F. Smith, Ida Ethel Smith, and Thomas Smith, his minor children, to the said Adams and Bullette certain lands therein described.

There is also enclosed herewith a list of persons who have executed to the said Adams and Bullette instruments in writing similar to the one executed to them by George Smith.

These enclosures will tend to enlighten the Department upon the good faith of Mr. Adams in his dealings with Delaware lands, and also the object which he has in making charges against the action of the Commission relative to the Delaware segregation.

It is not deemed advisable to comment further upon the charges made by Mr. Adams in his letter of September 14, 1908, to the Commissioner of Indian Affairs, other than to say that there is no truth it the statement wherein he says:

“I am informed that orders were telegraphed by the Secretary of the Interior to the Commission forbidding them to continue to receive such applications, but still no attention was paid to such instructions, and said Commission has since continued to deal with such applications, to notify Delaware to appear and to contest such applications within nine months or be forever barred from claiming any interests in such land.”

As said in the report of the chairman of October 2, 1903, the mistake was made in checking over the lands embraced in the Delaware segregation when certain applications were made and, through a mistake, was signed and sent out. If there has been any other notice, except the one sent to Mr. R. C. Adams himself, the Commission, at this time, is not aware of it, and certainly no attempt was made to evade the restraining order referred to by Mr. Adams in his letter, and no intentional violation of it was made by the Commission, as strict orders were given immediately upon notice that said restraining order had been issued that no action whatever should be taken by the land office regarding lands embraced within the Delaware segregation.

Formal notice has been served upon every one of the class permitted to make a “suspended” application for Delaware land to the effect that such land is in the segregation which has been made to the Delaware Indians, that they will not be allowed the land until the Delaware suit is determined, and that a final allotment of the land is not made at the time of the application. The applicant is required to accept service of said notice and his signed acceptance is made a part of the record. A copy of such notice is herewith enclosed. The letter of Mr. Adams is returned herewith.

Respectfully,
THMS BIXBY, Commissioners
T. B. NEEDLES, Commissioners
C. R. BRECKINRIDGE, Commissioners
(Through the Commissioner of Indian Affairs.)

This is formal notice to you by the Commission that the _________ is embraced in the segregation which has been made to the Delaware Indians who are members of the Cherokee Nation, under the provisions of section 23 of the act of Congress approved
July 1, 1902, and that you will not be allowed this land for ___________ until the suit of the Delaware Indians against the Cherokee Nation, now pending, has been determined, and that a final allotment of this land ___________ _______to will not be made at this time.

I accept service of this notice.

____________ ____________

Lucinda E. Lane, for herself and 2 children ( L. E. Lane )
George Fall Leaf.
John Jackson, for himself and 6 children.
John Kenney.
William Brown, for himself, wife, and child.
Mary Lee.
Mrs. Blackwing, for herself, daughter, and grandchild.
Mrs. Alex Drum, alias Ah pah le mah, and child.
Charles Elkshair, for himself, wife, and 2 children (Elkhair).
Mrs. Anderson – Win da ala qua, for himself and 3 children (not signed by Mrs. Anderson).

Thomas Lewis, for himself and wife.
Calvin Orcutt, for himself, wife, and 3 children (Evertt)
Rev. Wm. Adams, for himself, wife, and 5 children.
Joshua Wilson, for himself and wife.
Tom Wilson, for himself, wife, and child.
Frank Wilson, Mrs. Ice Wilson, Read Wilson, and 5 children of Mrs. Ice Wilson.
J. E. Thomas.
John Parks, for himself, wife, and 3 children.
Alex Black, for himself, wife, and 3 chilren.
Martha Swannock.
Mrs. Nancy Wilson or Ap pah me now o qua.
James Wilson, for himself and 3 children.
Abner Adams.
James Tanner.
Mary B. Sarcoxie.
Pa ma le mah or Minnie Elkshair, for herself and child (Elkhair).
Abraham Ketchum, for himself and five children.
George Parker, for himself, wife, and 6 children.
Wm. W. Nicholas, for himself and child.
Ellen Young, for herself and child.
Frenchman and Frank Frenchman and 2 children.
Frenchman.
Joseph Wilson, for himself and wife.
Edward Frenchman, for himself and 3 children.
H. M. Adams, wife, and 3 children.
Sally O. Smith and 4 children.
Benjamin Conner and 3 children.
Jesse Miller and 2 children.
Arthur Armstrong, wife, and 2 children.
John Young, wife, and 2 children.
Col. Jackson, wife, and 5 children.
Sarah Fields, 4 children, and 1 grandchild.
John Hallett.
Lizzie Halfmoon Peacock and 2 children.
Pa tah a coh o.
Elkshair, wife, and grandchild (Elkhair).
Stephen Bezian and wife.
A Mandy Bixby and 5 children (Bixley) .
Harry Arnold.
Mrs. Billy Wilson, son, and grandson.
J. F. Rice and 2 children.
Lizzie Beaver and 4 children.
Geo. Wilson, deceased daughters of Lucy Willits (signed by Lucy Willits).
Sam Wilson and daughter (Sam Williams).
Jane Requa and son James Swanock and child.

Fielding Halfmoon, wife and 4 children.
Mary Caps Ager (Mary Ager).
Mrs. Sam Williams and grandchild.
George Bullette and wife.
Cyrus Washington, 5 children and 1 nephew.
John Secondyne and 6 children.
John R. Willey, wife and 3 children.
Henry Armstrong.
John Kinney.
Josie Bullett and 2 children.
W. H. Shailer and 6 children.
Anderson Secondine.
Thomas Secondyne and child.
Jacob Secondyne.
Jane Fallleaf Drum.
Henry Spybuck, wife and 5 children.
James Walker and child.
Mrs. Washington and 2 grandchildren.
Wm. Thomas and child.
A. H. Norwood.
Widow Bill Swannock, alias Ske ke now o qua.
Mrs. Washington.

Exhibit L.

Agreement made and entered into this 28th day of August, A. D. 1901, by and between George Smith, of ______, Cherokee Nation, Ind. T., and _______ ______, wife of said ________ ________, as individuals and as husband and wife, and for themselves individually as well as jointly, and also as natural guardian for their children, to wit, Willie B. Smith, aged 9 years; Mark F. Smith, aged 6 years; Ida Ethel Smith, aged 4 years; Thomas Smith, aged 1 year, parties of the first part (hereinafter called the lessors), and Richard C. Adams, of Washington, D. C, and John Bullette, of Claremore, Ind. T., parties of the second part (hereinafter called the lessees).

This agreement is entered into by the lessees upon the faith of the following representations made to them by the lessors.

(A) The said lessors are Delaware Indians by blood, and have been duly listed for enrollment as Delaware Indians and citizens of the Cherokee Nation by the Commission to the Five Civilized Tribes, known as the Dawes Commission, and have been found by said Commission to be entitled to enrollment as such, have, by act of Congress, become citizens of the United States.

(B) There has been selected for or by the said lessors, as their allotment or share of the lands of said tribe to which they are entitled, or a portion of the same, the lands hereafter described.

(C) It is contemplated that a judgment will be obtained in the Court of Claims of the United States in a suit now pending between the Delaware tribe of Indians and the Cherokee Nation, by which the title of said lands herein described, and the coal, petroleum oil, and other substances thereon and thereunder is claimed by said lessors, and will be confirmed in them.

Now, therefore, in consideration of the sum of $1 to the lessors in hand paid by the lessees, the receipt of which is hereby acknowledged, and in further consideration of the covenants of said lessors and lessees, each to the other, hereinafter contained, it is agreed as follows:

First. The parties of the first part hereby grant, demise, and let to the lessees and to their successors and assigns, with the sole and exclusive right of digging, boring, and otherwise prospecting for coal, petroleum, and other valuable mineral substances, the following-described tracts of land situated in the Cherokee Nation, in the Indian Territory, to wit: NE. ¼, sec. 35, and E. ½ of SE. ¼, of sec. 25, and W. of SW. ½ of sec. 36 in T. 27 N., R. No. 15 E., Indian meridian, 320 acres.

To have and to hold the said premises for the said purpose only, unto said lessees, and to their successors and assigns, for and during the full term of twenty years from the date of this contract, hereby granting to the lessees, their successors and assigns, the exclusive right to dig, bore, mine, and excavate for coal, petroleum, and other valuable mineral substances, and to sell, ship, or otherwise dispose of the same during the continuance of this contract, and to obtain and remove the same there from, together with all other rights and privileges necessary for or incident to so obtaining and removing the same, in the most suitable, convenient, and advantageous manner.

Second. The lessees agree to commence and make search for coal, oil, and other mineral substances in and upon said demised premises within two years from the date of this agreement, subject to the further conditions as to time hereinafter provided for, and to render unto the lessors, their legal representatives, successors, or assigns, for each and every gross ton of merchantable coal, of 2,240 pounds, mined or produced (except such coal as may be removed in digging pits, shafts, or entries into such mines, or shall be used as fuel in the working of the mines), a royalty of 5 cents per ton and for any other valuable substance a royalty of one-twentieth part of the amount raised or produced, said royalty to be paid on the 25th day of each month for all coal or other substance produced for the month preceding.

Third. It is agreed that the lessees may, at any time during said term, construct upon said premises, such houses, buildings, structures and improvements during said term or at its termination.

Fourth. The lessees shall pay to the lessors in advance, each year during the term of the lease, as advance royalty, a sum equal to 25 cents per acre for the property covered by this lease when and after the exploration of lessees shall have shown the existence of mineral, oil, or gas in commercial quantities, it being understood that such payments shall be a credit on royalty should the royalty exceed such sums.

Fifth. Should said lessees fail to find coal of sufficient quantity or suitable quality to justify further mining the same, or from any cause desire to terminate this agreement, they shall have the right to do so by first giving the lessors notice in writing, to be mailed to their last-known address, and on payment in full of any and all royalties which may have become due, including the payments to be made under the fourth article of this agreement; then this contract shall be considered at an end and of no binding force upon either of the parties hereto.

Sixth. This agreement is made subject to a suit pending in the Court of Claims between the Delaware Indians and the Cherokee Nation, and does not bind the lessees to begin operations hereunder nor to make any payments to the lessors before a judgment shall have been rendered in the Court of Claims and Supreme Court of the United States, if appeal is taken, in favor of the Delaware Indians, by which the title to the lands and coal and oil, and other mineral or other substances under the lands as herein described, shall pass to and vest in the Delaware Indian or Indians who are parties of the first part. Said lessees are hereby given two years from the date of such final judgment to begin operations hereunder.

Seventh. This agreement may be assigned by the lessees, but such assignment shall not release said lessees from the obligation to pay royalty as herein agreed.

Eighth. Each of the parties hereto shall, upon request, make such other and further instrument in writing as may be necessary to effectuate the agreement and understanding of the parties as herein contained.

Witness our hands and seals the day and year first above written.

[seal.] GEORGE F. SMITH.

[seal.]

Indian Territory, Northern District, ss:

Be it remembered, that on this day came before me, a duly commissioned, qualified, and acting notary public within and for the Indian Territory, northern district,

George F. Smith, and _______ _______, his wife, to me well known as the grantors in the foregoing conveyance and lease, and said _______ _______and ________ _______, his wife, stated that they executed the same for the consideration and purposes therein

mentioned and set forth ; and also voluntarily appeared before me the said ________ _______, in the absence of her husband, and declared that she had, of her own free will, executed the same for the purposes therein mentioned and set forth without compulsion or undue influence of her said husband.

The said George F. Smith and _______ _______, his wife, furthermore state that they executed the foregoing for themselves and also as the natural guardians of Willie K. Smith, Mark F. Smith, Ida Ethel Smith, Thomas Smith, for the consideration and purposes therein mentioned and set forth.

Witness my hand as such notary public on this 2Sth day of August, A. D. 1901.

[seal.]
H. M. Adams, Notary Public

My commission expires June 29, 1905.

Filed for record this 9th day of September, A. D. 1901, at 8 o’clock a. m.

Chas. a. Davidson, Clerk and ex officio Recorder.
M Western National Bank, Washington, D. C, June 16, 1902.