By Berlin B. Chapman
Of the thirteen Indian reservations in Oklahoma Territory, nine were dissolved in accordance with agreements concluded by the Cherokee Commission with Indians occupying the reservations. It was with the Iowas that the Commission concluded its first agreement. The Iowas occupied a reservation which included the lands between the Cimarron and the Deep Fork of the Canadian, just east of the Indian Meridian. The reservation embraced 279,296 acres. President Arthur, by an executive order1 of August 15, 1883, set apart this tract of land for the permanent use and occupation of "the Iowa and such other Indians" as the Secretary of the Interior might see fit to locate thereon.
As organized on June 29, 1889 the members of the Cherokee Commission were General Lucius Fairchild of Wisconsin, chairman, General John F. Hartranft of Pennsylvania, and Alfred M. Wilson of Arkansas. Among other things the Commission was instructed2 that if it should be found impossible to secure a cession of all the lands in the Indian Territory lying west of the ninety-sixth meridian, owned or claimed by any of the several nations or tribes, it might then negotiate for such modification3 of existing reservations and claims as the said nations might severally agree to. The Commission was instructed to negotiate with the Iowas for whatever right they might have in the reservation occupied by them under the executive order of August 15, 1883, and the General Allotment Act.
3The Commission however was instructed that such negotiations should not be had with the Cherokees in respect to their claims to lands lying west of the ninety-sixth meridian.
Horace Speed, Secretary to the Commission, in a letter to Fairchild4 on September 6, 1889 urged that the Commission visit the Iowa reservation with the purpose of securing an agreement for its dissolution. He reported that the Iowas had moved to the most desirable parts of the reservation because they expected to have their lands allotted soon. From Guthrie he wrote to Fairchild on September 26: "If the commissioners can come here in October and before the Cherokees visit the Iowas and Sac and Foxes it would be well. They would take in severalty I think—so [I] hear from several of them. That would open 1,000,000 acres this winter and help us vastly."5 Three days later he wrote: "After mailing todays letter I learned that the Iowas were willing to severalty because they doubted having any title to their reservation (they are on by executive order only) and want to treat this fall. It would be little trouble arranging terms with them and the effect on the other tribes will be good. This being the case would it not be well to see them on our way to Tahlequah. We can do the business for them in a week or so."6 "The Iowas," he said on October 1, "can be soon closed with; the other Indians will take at least two visits—first to inform and urge them, then after they have deliberated, another visit to make the treaty. A treaty with them would help us with other tribes very much."7
4The Fairchild Papers are in the Library of the Wisconsin Historical Society at Madison. They are filed in chronological order.
7Same to same, Oct. 1, 1889, ibid. In reference to the Iowas, Sacs and Foxes, Kickapoos, Pottawatomies and Absentee Shawnees, Speed wrote: On or about October 15 they have a union or general council of all the tribes to discuss further the questions involved and to get information upon them.
"There are two men here— a squaw man who knows well and has great influence with the Kickapoos, particularly with Keokuk their chief who absolutely controls the tribe, and with the Sac and Foxes also. Another is the editor of the News here. He is intimate with the Iowas and can do us good with them.
"These men would for 100$ each go among these people and explain matters—the severalty, its benefits etc., so that they would understand our propositions and be much easier negotiated with after such schooling.
"Would it not be well to let these men go among the Indians separately, as friends of the Indians only, and not under any contract or understanding with the commission and attend the councils and return. Then pay them 100$ for services. I believe it would be money well spent."
In October consultation was held with the Iowas but Fairchild found them less willing to make an agreement than Speed had estimated. "A dirty lot they are," Fairchild wrote to his wife8 on October 20. "The whole tribe number only 84. Yesterday morning we held another talk—which on their part consisted in reiterated refusals to consent to any change—and of the wrongs the Indians had suffered at the hands of the whites—we only continued to tell them of the advantages of the change we desired. And that their lands which are not necessary for their comfort will certainly be opened to the white men—leaving for them all the land they can use. They will do as Uncle Sam wishes I've no doubt when next they are visited by a commission. If they refuse I think the govt. will compel them." The Sac and Fox and the Kickapoo Indians, like the Iowas, were visited, were told what the government wanted, and were left to consider matters. "We hope we have impressed them with the importance of preparing to take their farms in severalty," the Commission wrote of the three tribes, "so that they can be arranged with when we next see them."9
The Commission met at Guthrie on May 12, 1890. In the meantime Fairchild had resigned and was succeeded by David Howell Jerome, an ex-governor of Michigan. Hartranft had died on October 17, 1889. He was succeeded by Warren G. Sayre of Indiana, whom Fairchild described as "a hard-headed lawyer, pleasant and genial," with "a lot of sound, hard horse-sense." From Guthrie the closest Indians with whom the Commission could negotiate were the Iowas. On Saturday, May 17, 1890, they arrived at the Iowa Village where they were to conclude the first of a series of agreements for the dissolution of reservations in Oklahoma Territory.10 On that night, Sunday
8Fairchild to "Frank," Oct. 20, 1889, ibid. From the field of operation Fairchild wrote frequently to his wife, Frances, whom the family called "Frank."
10According to Speed the Commission went to the Iowas first because they were considered the best disposed to hear and do what the government suggested and advised them to do. Speed to Roy Hoffman, Nov. 27, 1911, H. Reports, 66 Cong. 2 sess., i (7652), no. 581, pp. 4-5.
and parts of other days during the stay of the Commission, the Iowas held grotesque dances to the music of a brass drum accompanied by sleigh bells, presumably to invoke aid from on high to guide them in their negotiations with the Commission. Their minds had become fixed upon allotments of one hundred and sixty acres11 to each member of the tribe and $1.25 an acre for the residue of the reservation. They believed that the executive order of August, 15, 1883 confirmed to them an absolute title to the reservation they occupied. But the commissioners were aware, as they said, of "the very limited extent of the Iowas' real title and interest" in and to the lands of the reservation.12
As became their practice in dealing with tribes, the Commission explained to the Iowas that under existing conditions it was best for them to select allotments from the choicest land, sell the surplus and use the proceeds to improve their farm and homes.13 The Commission were careful to say to the tribes that they would not force, scare or coax them into making agreements, but their actions and arguments in some instances tended to discount the value of the ideal they set forth. "The whole truth," said Jerome to the Iowas, "is that the white people are bound to go in and occupy these lands; but before the Government gives away it wants the Indians to have their homes."14 The Iowas were told that "the first of October the cattle15 are going out of here and something has got to be
12Commissioners to the President, May 28, 1890, S. Ex. Docs., 51 Cong. 1 sess., xi (2688), no. 171, p. 7. In a telegram to the Secretary of the Interior June 18, 1890 Chairman Jerome said: "The Iowas now on the reservation were runaways just drifting about; no consideration except that of humanity invoked the Executive order locating them in the Ind. Terry." A copy of the telegram is in the Indian Office, L. 18607-1890.
13The Commission said emphatically that the Indians would not be crowded off the reservation. As for allotments they said: "We want you to have first choice; take what you want."
14The proceedings of the councils the Cherokee Commission held with the Iowas in May 1890 contain at present thirty-six pages; the last page or pages are missing. O. I. A., I. S. P. (Irregular Shaped Papers), Drawer 8. According to the proceedings, councils were held on the afternoons or evenings of May 17, 19, 20, 26, and on the following day.
15In 1890 Commissioner Morgan estimated that in the Indian Territory cattlemen had on ten reservations (the Cheyenne and Arapahoe, Pottawatomie and Absentee Shawnee and Kickapoo reservations were excepted) 321,800 head of cattle. Morgan to Sec. Int., March 13, 1890, O. I. A., L. Letter Book 195, pp. 323-335. A table of the reservations, somewhat incomplete, lists the persons or firms holding cattle, the estimated number of cattle, the number of acres grazed, the dates of expiration of agreements with the Indians and the amounts paid to them annually.
done"; that Congress had authorized the President to open the lands, that unless a trade were made with the Commission, an arbitrary order would be made allowing the Iowas less than the Commission offered them, that Congress did not think they owned the reservation except enough land, to live on, that such a chance as the present one would surely never come to them again; and they were asked what they would do if no trade were made and eventually "a lot of white people get in."
The Iowas observed that the experience of the Pottawatomies in taking allotments was not encouraging, for eventually they had been "turned out and come back with their clothes torn" and in extreme poverty. They suggested that the Commission deal with the Pottawatomies, Kickapoos, and Sacs and Foxes and see how these Indians fared under the proposed system of land tenure; but they were told that they themselves ought to be just as smart as any Indians and know what they wanted to do. Some members of the tribe wanted to consult the northern Iowas before making the trade, some preferred to buy the reservation outright if their title was not absolute, and some expressed uneasiness in a stable government policy since the President himself served only four years. It was claimed that the United States owed the Iowas a good deal of money because of matters within their memory, matters of which they had heard from their fathers before they died and from white people everywhere. It was proposed that the Great Father settle old debts and begin anew as a preliminary step to an agreement. Allotments were regarded as an entering wedge which would in time deprive the Indians of all their lands. The period of inalienation was looked upon with favor and the fact that they "were compelled" to have their allotments for twenty-five years was an encouragement to trade. On May 19 Jerome explained the proposition of the govern-
ment and on the following day Jefferson White Cloud led the way of his fellows to the conclusion of an agreement.16 Some signatures were attached as late as May 27. On the following day the Commission reported the agreement to the President.
According to the provisions of the agreement the Iowa tribe residing and having their homes on the reservation, surrendered and relinquished to the United States all their right, title, claim, and interest in and to and over the reservation. There was excepted from the operation of the agreement, a tract of land not exceeding ten acres in a square form, including the church, schoolhouse, and graveyard at or near Iowa Village. This tract should belong to the Iowa tribe in common so long as they should use the same for religious, educational, and burial purposes for their tribe—but whenever they should cease to use the same for such purposes for their tribe, the said tract of land should belong to the United States.17 The United States agreed to pay the tribe $84,350; a part of this payment was referred to as being "a further and only additional consideration" for the surrender and relinquishment of title, claim, right, and interest of the Iowas in and to the lands of the reservation. The estimated area of the lands which the United States should acquire by the agreement, was 221,528 acres. In view of the payment to be made to the tribe, it would appear that the United States wasp acquiring the surplus lands of the reservation for about thirty-eight cents an acre. The agreement did not include the usual provision that allotments should be subject to the General Allotment Act but to all intents and purposes it conformed to that act and its amendments. The Iowas agreed to take allotments of eighty acres each. Sections sixteen and thirty-six were not withheld from allotment. No other restriction as to locality was placed upon the selection of allot-
17A supplemental article to the agreement provided that when allotments were being made, the chief of the Iowas might select a similar tract of ten acres to be held in common by the tribe.
meats than that they should conform to the Congressional survey or subdivision of the reservation; and allottees were given certain preferences to lands they had improved. Agents were to select allotments for Indians who failed to make selections within sixty days after proper notice had been given. Secretary Noble observed that the agreement was deemed. the most satisfactory conclusion that could be reached. It is significant that the first agreement secured by the Commission was made with a tribe whose claim of title to lands was flimsy and whose people were few in number and poorly advanced in the arts of civilization.
In accordance with the act of March 2, 1889, the President was required to report the agreement to the council or councils of the nation or nations, tribe or tribes agreeing to the same for ratification. The Commission reported that the Iowas had no government18 that they were made aware of. They reported that of an entire population of about eighty-six men, women, and children, they secured to the agreement the signatures of those over eighteen years of age that represented sixty-two. Noble thought that if the agreement were ratified by the Indians it should be by the same Indians who signed it.
A complex question arose as to what interest the low as in Nebraska and Kansas might have in the reservation. Acting Commissioner Hobert V. Belt held that those who should elect to remove to it would have an inchoate right therein, of which they could only be deprived with their consent or by the action of the clear majority of the whole tribe.19 He recommended that provision be made in the agreement whereby sufficient land should be reserved to, make allotments to those members of the tribe, not residing on the reservation, but who might elect to remove thereto. It was the opinion of Assistant Attorney-General Shields that the Iowa Indians, as
18William Tohee was chief but he was blind and helpless and no one seemed to have authority to control or direct in matters of government.
members of one tribe, had equitable rights in the reservation in the Indian Territory, which rights should be considered.20 He believed that it was but simple justice that the Iowas in Nebraska and Kansas should be permitted to go upon the reservation in the Indian Territory and share in the proceed of the sale of the same. He stated that Congress would no doubt protect the rights of these Iowas, and he implied strongly enough that under the Cherokee treaty of 1866 such of them as did not wish to take allotments under the act of March 3, 1885, in Nebraska and Kansas, might be settled on Cherokee lands, east or west of the ninety-sixth meridian. Secretary Noble stated that they might be settled "even east of Western Cherokee line."21 He said of the executive order reservation: "No consideration was ever paid for it by the Indians, and those on it have in fact never acquired any title, because not accompanied by the tribe, to whom alone a patent could issue, and only upon occupancy by the tribe." In his opinion the "Iowas who had wandered there" were the only ones necessary to consult, and they only out of a disposition to induce them to go upon allotments and to cultivate them in a contented state of mind. President Harrison transmitted the agreement to Congress on July 2, 1890, and on February 13 of the following year it was incorporated in an act of Congress.22 No mention was made in the act of the Iowas in Nebraska and Kansas.
According to instructions approved by Assistant Secretary Chandler on March 18, 1891, Agent John C. Robison was directed to proceed to the Iowa reservation and upon arrival to immediately notify in writing, "the acting and recognized chief of the Iowas" that he was ready to proceed with the work of allotment as provided for in the agreement.23 Allotments were to be confined to members of the Iowa tribe
23Chandler to Com. Ind. Affairs, March 18, 1891, O. I. A., Special Case 147, 10377-1891. The instructions are in O. I. A., L. Letter Book 212, pp. 407-411.
residing and having homes upon the reservation. The work was to be carried on with diligence and care and as rapidly as a due regard to accuracy and thoroughness would permit. Robison found no small amount of obstacles in his way. The previous winter had caught the Iowas in straitened circumstances; there had been a failure of crops and game was getting scarce. Several members of the tribe were old and dependent on the government for aid. The Iowas believed that the government had taken advantage of their condition to drive a hard bargain; certainly most of their neighbors were faring better in the sale of their lands than they had.
The work of allotment was slow and tedious.24 The sixty days allowed for voluntary selections passed with forty-one allottees not having selected lands. In accordance with instructions Robison assigned lands to them, completing the work in three days,25 or on May 29. Certain corrections in schedules were necessary before approval.26 They were approved by Noble on September 16. In the main, allottees secured lands in the valley of the Cimarron, but a few secured lands in the valley of the Deep Fork of the Canadian and in the vicinity of their old village. The lands allotted were chiefly bottom and best suited for agricultural purposes. In the dissolution of the reservation 108 Indians received 8,005.3 acres in allotments. Ten acres were reserved for school, church, and cemetery purposes. There remained an additional amount of 270,681.27 acres.27
24Robison to Morgan, July 13, 1891, O. I. A., Special Case 147, 25404-1891. Commissioner Morgan said that sixteen heads of families who desired to select forty acres each in one section could do so, but that "the lands cannot be used for townsite purposes, and it is best that each Indian should select two contiguous tracts of forty acres each." Tel. from Morgan to Robison, April 24, 1891, O. I. A., L. Letter Book 215, p. 276.
25Robison to President Harrison, May 29, 1891, O. I. A., Special Case 147, 20253-1891; Agt. S. L. Patrick to Com. Ind. Aff., July 1, 1891, Ind. Aff. 1891, i, 363.
26Morgan to Robison, July 8, 1891, O. I. A., L. Letter Book 219, pp. 476-477; Robison to Morgan, Aug. 29, 1891, O. I. A., Special Case 147, 31817-1891. The schedules are in O. I. A., Schedules of Allotments No. 16.
27F. M. Goodwin to J. B. Tanner, April 24, 1924, C. Cls., Printed Records, vol. 560, no. 34677, pp. 73-75.
The surplus lands of the Iowa reservation were opened to white settlement on September 22, 1891, in conjunction with those of the Sac and Fox reservation and of the Pottawatomie and Absentee Shawnee reservation. The lands were sold in tracts of 160 acres to actual settler's only. The price was $1.25 an acre, as compared with about thirty-eight cents an acre, at which rate the Iowas had disposed of their surplus lands to the United States. Little wonder it was that for many years the Iowas thought about the difference in price, and that Charles J. Kappler, the student of Indian affairs, laws and treaties, should finally represent them in the Court of Claims.
In a petition dated November 22, 1911, the Iowa tribe in Oklahoma stated that the Cherokee Commission in 1890 promised and agreed in oral statements that if they would enter into an agreement with them, and that if afterwards the Commission should pay other Indians in the vicinity more for their lands that they, the Iowa Indians, should receive the same, or a total amount per acre equal to that paid such other tribes of Indians.28 Under such alleged verbal promises and agreements the Iowas set forth a claim for $175,967.15. The Interior Department considered that their claim was not valid.
In 1929 the matter was brought before the Court of Claims under an act29 conferring jurisdiction on the Court to determine the amount, if any, which might be legally or equitably due the Iowa tribe in Oklahoma, under any stipulations or agreements, whether written or oral, entered into between said tribe and the United States or its authorized representatives, or for the failure of the United States to pay any money which might be legally or equitably due said tribe.
An extensive and impartial examination of materials as to how the Iowa reservation was established and dissolved reminds one that many a case, apparently of greater merit than that presented by the Iowas, has been lost in the Court of
Claims. However, the Court recognized "the existence of an agreement," the terms of which were not expressed in the written contract of May 20, 1890, and awarded the Iowa tribe in Oklahoma a judgment for $254,632.59; so that the said tribe received a total of $1.25 an acre for the surplus lands of the reservation.30
The Court said: "Without ascribing improper motives to the commissioners, the record at the very outset discloses an obvious and serious misconception of the Indians' title to their lands, and the making of representations to the Indians, calculated to inspire fear, which had absolutely no basis in law or fact. Again the record points out that it required persuasion to induce the Indians to assent at all to the propositions of the commissioners, aside from the considerations offered in money and allotments. A special consideration was paid to one of the chiefs of the tribe, and despite all that could be offered or said, a considerable number of Indians absolutely declined to assent to the so-called agreement. We say this advisedly, for the anxiety of the commissioners to close the negotiations is evidenced by the fact that 62 out of a supposed total of 86 signed the agreement; 34 of the 62 were made up of members of but six Indian families, and one Indian and his wife not members of the tribe, as well as the signature of an unborn child, appear on the contract. Following the execution of the contract, allotments were made to 108 members of the tribe, so that in the end . . . . the contract was assented to by 59 legitimate signatures, a small majority of the tribe."
The Court held that where in negotiations between ignorant and illiterate members of an Indian tribe and the United States it appeared that the Indians had "fixed minds" upon certain propositions, and were dissuaded therefrom by arguments based upon misconceptions of their rights, the case was one that called for equitable relief.