By Berlin B. Chapman
INDIANS AND CATTLE COME TO THE OUTLET
Part One of this study was devoted to the acquisition of the Outlet by the Cherokees, and to the events culminating in the Cherokee treaty of 1866. Part Two of the study continues the story to 1889, during which period Indian tribes were settled on the eastern end of the Outlet, and cattlemen came into possession of the remainder of the lands.
Treaties concluded with the Cheyennes and Arapahoes and with the Comanches and Kiowas during the autumn preceding the execution of the Cherokee treaty of 1866 indicated contemplation on the part of the government to settle plains Indians on lands in the Cherokee Outlet. By a treaty concluded in 1867 the portion of the Outlet between the Arkansas arid the Cimarron was included in a district of country set apart for the absolute and undisturbed use and occupation of the Cheyennes and Arapahoes, and for such other friendly tribes or individual Indians, as from time to time, the Cheyennes and Arapahoes might be willing, with the consent of the United States, to admit among them. In 1869 the Cherokees protested against the settlement of other Indians on Cherokee lands west of the ninety six degrees without their being consulted in regard to the price of the lands as provided in their treaty of 1866.51
In June, 1872, the Cherokee lands between the ninety-sixth meridian and the Arkansas River, with the approval and assent of the Cherokee nation and by an act of Congress, were set apart
51Memorial of Lewis Downing, Prin. Chief of Cherokee nation, to the Sen. of the United States, March 22, 1869, S. Misc. Docs., 41 Cong. 1 sess., (1399), no. 16.
for and confirmed to the Osages as their reservation, with the provision that the Kaws should be permitted to settle within the limits of the reservation. By an unratified agreement concluded in October, about one third of the lands in the Outlet west of the Cimarron were included in a reservation set apart for the Arapahoes, as long as they should occupy and use the same. In a like agreement made in November, 1873, all the Cherokee lands west of the Cimarron were included in a district of country set apart for the absolute use and undisturbed occupation of the Arapahoes, and as the future home for them. In an unratified agreement made at the same time, the Cherokee lands situated between the Arkansas and the Salt fork of the Arkansas on the one side, and the Cimarron on the other side, were included in a tract of country set apart for the Cheyennes in the same manner. The unratified agreements provided for the extinguishment of all the right, title, and interest of the Cheyennes and Arapahoes in and to the reservation of 1867.
Thus within seven years after the execution of the Cherokee treaty of 1866 all the Cherokee lands west of ninety-six degrees had been marked off into districts for the permanent settlement of Indians. In the meantime the Osages and Kaws had proceeded to occupy the tract of land set apart for them and were in possession of the same. The Cheyennes and Arapahoes never settled on Cherokee lands west of the Arkansas and the marking off of districts there for them was a matter of paper only. So far as they were concerned, the Cherokees retained the right of possession and jurisdiction over the lands in the Outlet west of that river. The Cherokees, like the Seminoles and Creeks, were separated from their western lands by a reservation occupied by other Indians and buttressed against the western side of their home reservation, reduced as it was by the treaty of 1866. During the later seventies and early eighties four reservations, containing more than a half million acres in the Outlet, just west of the Arkansas, were
laid off for the Pawnees, Otoes and Missourias, Poncas, and Nez Perces.
In consideration of the advantages and benefits conferred by the treaty of 1867, the Cheyennes and Arapahoes agreed to relinquish all right to occupy permanently the territory outside of their reservation as defined in the treaty. This relinquishment was apparently of value to the United States. And the Cherokees might well look to the United States, acting as their agent in the disposal of western lands, for payment to them of the sums properly to be paid on account of the lands in the Outlet set apart for the Cheyennes and Arapahoes. In February, 1872, Commissioner Walker did not hesitate to say that the United States was responsible for the payment.52 At that time the Cheyennes and Arapahoes, who had been the first Indians to acquire lands in the Outlet after the Cherokee treaty of 1866, and who had been assigned over one half the Cherokee lands west of ninety-six degrees, were entirely destitute, dependent upon the government in the main for subsistence, and had no tribal fund or possible means out of which payment could be made for Cherokee lands. The price of the lands had not been determined as provided in the Cherokee treaty of 1866. Commissioner Walker recommended that Congress be asked to pass an act authorizing the President, upon the expression of assent by the council of the Cherokee nation, to proceed to fix the price of all the Cherokee lands west of the Arkansas.53 He recommended that the portion included in the Cheyenne and Arapahoe reservation of 1867 be separately appraised. The Indian appropriation act of May 29 authorized the President and the Secre-
53In his annual report in September, 1871, John B. Jones, agent for the Cherkees, recommended that the whole of the Cherokee lands west of the ninety-sixth meridian be valued by the President at rates which should not average less than fifty cents per acre. He recommended that the appraisement be made forthwith, and the amount due the Cherokees be placed to their credit. With little regard for the Cherokee treaty of 1866, he added that the government could then settle Indians on these lands at its own option as to time, price etc. Indian Affairs, 1871, p. 567.
tary of the Interior to make an appraisement of the Cherokee lands lying west of the land of the Osage Indians and south of Kansas.54 Curiously enough no provision was made for the expenses of the appraisement and nothing was done toward making it for four years.
A clause was inserted in the sundry civil appropriation act55 of July 31, 1876, providing five thousand dollars to pay the expenses of a commission to be appointed by the Secretary of the Interior to appraise the lands in accordance with the act of May 29, 1872. Secretary Chandler appointed a commission January 30, 1877, the members being Thomas P. Kennard of Lincoln, Nebraska, Enoch (Ebenezer) H. Topping of Louisburg, Kansas, and Thomas E. Smith of Paola, Kansas. Instructions,56 approved by the Department of the Interior in February and issued to the Commission on March 3, stated that owing to the limited appropriation for expenses of the appraisal of so large a tract of country, it would be impracticable for them to make a personal inspection of every section or even of every township. The Commission was instructed that it might be desirable for them to examine and appraise, by townships, all the Cherokee lands lying between the Indian Meridian and the Arkansas, and, perhaps some few town ships west of the said meridian; but it was suggested that much, if not all of that country west of the Abilene cattle-trail or west of the present city of Enid, might be cursorily examined, and appraised in larger areas at one price per acre. In determining the valuation per acre of the lands, the Commission was instructed to take into consideration the fact that the lands were for Indian occupancy and settlement only, and, consequently, were of less value than lands open to white settlement.
54Act of May 29, 1872, 17 Statutes, 190. The act referred to the lands as ceded to the United States by the Cherokee Indians under the treaty of 1866 for the settlement of friendly Indians. Ceded was used in the same sense in an act of March 3, 1885, 23 Statutes, 384.
56The instructions, dated March 3, 1877, are in S. Misc. Docs., 45 Cong. 2 sess., ii (1786), no. 69, pp. 2-3.
In accordance with instructions the Commission met at Lawrence, Kansas, on March 28, and on April 13 they began the work of inspection in the northeast corner of the tract, near where Chilocco now is. They were somewhat delayed by the late arrival of a military escort and by frequent rains and high water; but by the last of June they had inspected the lands east of the Abilene cattle-trail. They then adjourned until September because of the excessive heat and drought. In a report57 to the Commissioner of Indian Affairs on August 22, they described the various parts of the country inspected. They reported that the country was healthful, and that stock-raising could be carried on successfully in any part of the country inspected. It was the opinion of the Commission that since the lands were for Indian occupancy and settlement only, they were worth about one half as much as they would be if they were open to settlement by white people. According to their report the appraisal, as far as made, was in conformity with this opinion.
On July 25 Kennard had resigned his office as a member of the Commission and on September 8 William N. Wilkerson of Cass County, Missouri, was appointed to fill the vacancy. The Commission as thus constituted met at Wichita on September 17 to renew their labors in the field. In inspecting the Cherokee lands west of the Abilene cattle-trail they selected a route which would, to the best of their judgment, give them the most general knowledge of the lands as a whole. The route selected was expected to be traversed within six weeks. It was in the form of a rectangle, and led west from the Abilene cattle-trail through the middle of the northern half of the lands of the Outlet to near the head of Buffalo Creek; thence south through Camp Supply and up Wolf Creek to near the middle of the southern half of the lands of the Outlet; thence east to the said cattle-trail. In general the route was followed. The journey through the southern half of
the lands ended November 4 at the Abilene cattle-trail, near where Enid now is. Excursions to the right and left were not so numerous as contemplated, but the Commission considered their opportunities for inspecting the lands sufficient to enable them to determine a fair average valuation. On December 12 they made a report to the Commissioner of Indian Affairs, transmitting with it a detailed statement58 of the prices they had fixed upon the lands west of the Arkansas. They adhered to the principle of one half evaluation set forth in their report of August 22. The average appraised valuation of the Cherokee lands west of the Arkansas, or of the tract of 6,574,576.05 acres were 41.25 cents an acre. The total value was stated as $2,711,923.40¾. As a whole the Commission found the country west of the Abilene cattle-trail to be valuable chiefly for stock-raising. Some portions of the country they believed were adapted to wheat and other profitable crops.
The Cherokees objected to the one half valuation adopted by the Commission as being both unreasonable and unjust, and they were not satisfied with the appraisement made thereon. Nor did Carl Schurz, Secretary of the Interior, disregard their objections. In a letter59 to President Hayes on June 21, 1879, he pointed out that the average valuation of the Pawnee reservation as determined by the Commission was fifty-nine cents per acre. And since he regarded the lands of the Pawnees as valauable as those bought in 1873 by the Osages at seventy cents an acre, he recommended that the Pawnees should pay seventy cents an acre for the portion of their lands in the Outlet. Deducting this portion of the Pawnee reservation from the entire tract, the remainder of the lands had been evaluated at 40.47 cents an acre. Schurz recommended that the price be raised to 47.49 cents an acre. And two days later,
58The report, under date of December 12, 1877, and the statement are in the appendix of S. Reports, 49 Cong. 1 sess., ix (2363), no. 1278, pt. 2, pp. 158-167. The statement gives the number of each township, its range, area, value per acre, and its total value.
59H. Ex. Docs. 47 Cong. 1 sess., xx (2028), no. 89, p. 30. The Cherokees apparently took no part in the appraisement of their lands. If the lair authorizing the appraisement to some extent conflicted with article 16 of the Cherokee treaty of 1866, to that extent it superseded the article.
June 23, 1879, President Hayes by an executive order60 fixed the price of the lands as recommended by the Secretary of the Interior. Thus the Cherokee lands west of the Arkansas were appraised in accordance with acts of Congress, enacted after the execution of the Cherokee treaty of 1866, but not appraised in accordance with the provisions of that treaty.
It has been observed that the government moved slowly in appraising the Cherokee lands west of the Arkansas; it moved just as slowly in purchasing them. During the decade after the President and Secretary of the Interior were authorized in 1872 to appraise the lands, the Cherokees were willing, though not anxious to sell them to the government for the settlement of Indians thereon; there seems to have been no instance of a direct offer to sell them for white settlement. In 1873 the Cherokee National Council instructed its delegation at Washington61 to urge upon the government prompt payment to the Cherokee nation for the lands, under the provisions of the Cherokee treaty of 1866 and the act of May 29, 1872. The next year the delegation was instructed to make necessary arrangements with the government to have the lands appraised at a fair valuation under the provisions of the said act, or to have them disposed of in any other proper manner. The provision was attached that the lands should be applied alone to the settlement of friendly Indians thereon, as stipulated for by the Cherokee treaty of 1866. In 1875 the delegation was instructed to make a fair and early settlement with the government by negotiation or otherwise, in reference to the lands, and to dispose of the same to the best pecuniary advantage of the Cherokee nation and people in any proper manner.
60The executive order is in Ibid., p. 31. The lands valued at 47.49 cents an acre were estimated to have a total value of $3,013,037.49.
61See the compilation of clauses from the instructions of the Cherokee Council to its various delegations at Washington, H. Reports, 51 Cong. 2 sess., iv (2888), no. 3768, pp. 22-25. The clauses relate to the Outlet and are for the years 1873-1886.
In December, 1876, the delegation was given similar instructions regarding the lands62 west of the Arkansas not disposed of. The next year they were instructed to urge upon the government an early and fair settlement for all Cherokee lands lying west of the ninety-sixth meridian and to dispose of all such lands to the best pecuniary advantage to the Cherokee nation. In 1878 they were instructed to bring to a satisfactory settlement the business pending between the government and the Cherokee nation in the Indian Territory west of the Arkansas, according to the Cherokee treaty of 1866 and existing acts of Congress in relation thereto. In so doing they were instructed to demand a fair price for "said lands," and not less than the average price formerly fixed upon lands in the Indian Territory. In 1879 they were instructed to prosecute to a final and successful termination before the government the unsettled business of the Cherokee Nation in regard to the Cherokee lands lying west of the Arkansas and referred to in the Cherokee treaty of 1866. It was provided that in any arrangement made, the said lands should be reserved alone for the settlement of friendly Indians as provided by that treaty. In 1880 the delegation was instructed to prosecute to a speedy and final termination all the unsettled business with the United States relative to Cherokee lands west of the Arkansas, "and to secure without further delay the remainder of the price still due for these lands according to the estimate submitted."
Before the close of 1881 the delegation was authorized and instructed to prosecute to a final settlement with the United States all the unsettled business of the Cherokee nation with the United States, and particularly all questions relating to lands of the Cherokees lying west of the Arkansas, and to secure without further delay the remainder of the price still due for the lands. They were authorized and instructed to obtain, if practicable, the salines or
62An act of Congress approved April 10, 1976, set apart for the use and occupation of the Pawnee tribe a reservation which was mainly in the Cherokee lands west of the Arkansas; 19 Stats. 28.
salt plains, and deposits on the lands, so that they should be fully restored as the property and under the jurisdiction of the Cherokee nation, and would secure to the nation a revenue therefrom. They were further instructed to secure payment of as large an amount as could possibly be obtained of the price due from said lands, and the restoration to the full possession and authority of the Cherokee nation of such of these lands as the United States would not pay for promptly.
In a letter63 to the Secretary of the Interior, January 11, 1882, the delegation proposed to accept on behalf of the Cherokee nation the price of the lands as appraised at 47.49 cents an acre. They asked for an estimate of the principal and interest due the Cherokee nation as payment for the lands. They called attention to the fact that the Cherokees were pressed in 1886 for the cession of the lands for the reason that they were immediately needed for the occupancy of other Indian tribes. Reference was made by the delegation to the proposed settlement of the Kiowas and Comanches, and the Cheyennes and Arapahoes on Cherokee lands west of the Arkansas, and with a peculiar construction of the treaty of 1866 they added: "Every consideration of law and equity required that we should have been paid for the land ceded long ago. Had our treaty been complied with, we should have been paid fifteen years ago." They asked that the government, if unable to pay for all the lands at that time, should pay principal and interest for the portion wanted and restore the remainder of the lands to the Cherokee nation as they were before the treaty of 1886.
In a letter of February 17 Commissioner Price pointed out that the proposed settlement of the Kiowas and Comanches, and
63The letter is in Cong. Record, 51 Cong. 1 sess., p. 1515. The delegates were Daniel H. Ross and R. W. Wolfe.
The action of the government in carving out small reservations for Indians the eastern part of the Outlet at the proposed price of 47.49 cents an acre appeared to the Cherokees no less unfair than that of picking plums from the pudding. The delegates observed that it was neither the purpose of the act of May 29, 1872, nor would it be in accordance with either law or equity, to pick out the most valuable tracts of land, and take them at the price fixed for the whole.
the Cheyennes and Arapahoes in the Outlet had not affected the Cherokee title to the lands and he concluded that the Cherokees had no claim under existing law or treaty either legal or equitable, to payment for their lands west of the Arkansas, other than such portions thereof as had been sold to and were occupied by, friendly Indians. He reviewed the payments64 made to the Cherokees for lands west of the Arkansas and stated that they had been paid $348,389.46 or $34,595.70 in excess of the amount due them for lands thus appropriated under the provisions of article sixteen of the Cherokee treaty of 1866. Secretary Kirkwood agreed with Price that so far as lands in the Outlet, for the Kiowas and Comanches, and for the Cheyennes and Arapahoes were concerned, the Cherokees were not entitled to compensation under the terms of the treaty of 1866.65
In the letter of February 17 Commissioner Price valued the Cherokee lands in the Pawnee reservation at seventy cents an acre and those in the Ponca, Nez Perces and Otoe, and Missouri reservations at 47.49 cents an acre. The Cherokee National Council was dissatisfied with this evaluation and before the close of the year it instructed and empowered the delegation at Washington to agree to and receive for the lands in these reservations, a fair and equitable price, and not less than one dollar and a quarter an acre. Upon payment of the sum agreed upon by the delegation and the United States, to the treasurer of the Cherokee nation, the said delegation was authorized to execute a deed of conveyance or relinquishment of the lands in the said reservations of the United
64Price to Sec. Int., Feb. 17, 1882, H. Ex. Docs., 47 Cong. 2 sess., xix (2108), no. 54, pp. 35-39. See also the itemized statement in same to same, Dec. 30, 1884, S. Ex. Docs., 48 Cong. 2 sess., i (2261), no. 19.
By an act of June 16, 1880, the sum of $300,000 was appropriated, to be paid into the treasury of the Cherokee nation, out of the funds due said nation for its lands west of the Arkansas. 21 Statutes, 248; Letter from Cherokee delegation to Richard Coke, April 8, 1880, S. Misc. Docs., 46 Cong. 2 sess., ii (1891), no. 77. In accordance with an appropriation act of March 3, 1881, (21 Statutes, 422) the Cherokees were paid $48,389.46 for lands in the Ponca reservation.
65Kirkwood to the President, Feb. 28, 1882, H. Ex. Docs. 47 Cong. 1 sess., xx (2028), no. 89, pp. 1-5.
States in trust for the benefit of the Indians occupying them. In a letter66 to Secretary Teller January 4, 1883, the delegation set forth their instructions and stated that these reservations were small, picked tracts of valuable timbered and watered land on which Indians had been located in violation of the Cherokee treaty of 1866. They stated that the only payments made were part payments upon the whole Cherokee tract of land west of the Arkansas. The delegation stated that they were prepared to meet any fair proposition for the disposal of all the Cherokee lands west of ninety-six degrees, or for all west of ninety-eight degrees, or west of the Indian settlements, or for the location of other small tribes in the eastern portion of the lands. They called attention to the necessity of an immediate settlement for the Cherokee lands in four small reservations just west of the Arkansas. In a letter67 to Secretary Teller January 5, they stated that the said lands, at one dollar and a quarter an acre, were worth $689,665.55 or $341,276.09 in excess of the payments made by the United States to the Cherokee nation in 1888 and in 1881. Their instructions do not seem to justify their statement that they were fully authorized by the Legislature of the Cherokee nation to dispose of the Cherokee lands west of ninety-six degrees.
It was the opinion of Secretary Teller that it would be to the interest of both the Cherokee nation and the United States, and would settle many questions growing out of this matter, which had been and were at that time very annoying, if an appropriation were made by Congress in a sum sufficient to pay the Cherokee nation for the whole body of land in question, at the price fixed by President Hayes in 1879, less the sums already appropriated and applied in payment for a part of said lands.68 The balance due the Cherokees he estimated at $2,825,657.85. On
66The letter is in H. Ex. Docs., 47 Cong. 2 sess., xix(2108), no. 54, pp. 3-4. The delegates were R. M. Wolfe and Robert B. Ross. With them was William A. Philips, a special agent.
January 30 the Chairman of the Senate Committee on Indian Affairs submitted to Teller for any information or suggestion he might wish to communicate, a proposed amendment to the sundry civil appropriation bill, appropriating the sum of $300,000 to be paid to the Cherokee nation "out of funds due under appraisement for Cherokee lands west of the Arkansas River." In a reply the next day Teller said that if his recommendation of January 18 were not adopted, then, in his opinion the appropriation proposed by the amendment was not an unreasonable one, as the sums already paid to the Cherokee nation, with the proposed appropriation added, were not believed to be in excess of the value of the lands upon which friendly Indians had already been located.69 A month later Senator Dawes explained that the Cherokees had offered to the United States that if it would pay them $300,000 on account of the whole of the lands west of the Arkansas, they would make a deed of so much of the lands as were occupied by the Pawnees, Poncas, Nez Perces, Otoes and Missourias, and Osages.70 By an amendment to the sundry civil appropriation act, approved on March 3, the said sum was appropriated, to be paid into the treasury of the Cherokee nation "out of the funds due under appraisement for Cherokee lands west of the Arkansas River," provided that the Cherokee nation, through its proper authorities, should execute conveyances, satisfactory to the Secretary of the Interior, to the United States in trust only for the benefit of the Pawnees, Poncas, Nez Perces, Otoes and Missourias, and Osages then occupying "said tract, as they respectively occupy the same before the payment of said sum of money."71
One might conclude from a reading of the amendment that the Cherokees had conceded to the sale of all their lands west of the Arkansas at the appraised value fixed by President Hayes in 1879, and that their acceptance of the sum appropriated was evi-
69Teller to Henry L. Dawes, Jan. 31, 1883, S. Reports, 49 Cong. 1 sess., viii(2362), no. 1278, pt. 1, Appendix p. 274.
dence of the concession. On January 3, 1885, Secretary Teller transmitted to the Senate a letter by Commissioner Price stating that the Office of Indian Affairs held that the appropriation was made on account of all the lands of the Cherokee nation lying west of the Arkansas River.72 The Cherokees, however, claimed73 that they accepted the appropriation as an additional payment upon lands already sold to the Indians named in the amendment, and not as a payment on their unsold and unoccupied lands. Secretary Teller's letter of January 31, 1883, is evidence that a few weeks before the passage of the amendment he construed its language in the same way that the Cherokees claimed that they had construed it. Judge Isaac C. Parker of the United States district court for the western district of Arkansas in 1886 agreed that the payment was upon the lands for which the Cherokees claimed that it was.74
On July 14, 1883, the Cherokees by deed conveyed the lands in the reservations occupied by the Indians named in the amendment, and the Kaws, to the United States in trust, and on receiving the deeds the $300,000 was paid to the Cherokees.75 It is worthy of note that all the reservations were conveyed by the Cherokees under the same act of Congress, by the same authority, upon the same day, and with the same conditions. The deeds do not specify that the $300,000 payment named in the amendment was an increased payment on the unoccupied lands; nor do they show that 47.49 cents an acre was the payment on the lands. Except
72Price to Sec. Int., Dec. 30, 1884, S. Ex. Docs., loc. cit., no. 19. Price stated that the appropriation of $300,000 by the act of June 16, 1880 was on account of the same lands.
73This claim seems to rest largely upon action taken by the National Council without information which it could and should have first acquired; yet it relied upon the representation of its own delegates. See the report of the Senate Committee of the Cherokee National Council, Dec. 21, 1885, O I A., Misc. Documents, pp. 19651-54; and the letter by Prin. Chief J. B. Mayes to W. G. Sayre, Dec. 20, 1889, ibid., pp. 20996-98.
75Report of Sec. Int., 1883, H. Ex. Docs., 48 Cong. 1 sess., x (2190), p. xxiii-xxiv. The deeds are recorded in the Indian Office, Indian Deeds, vi, 470-486.
for the reservations occupied by the Osages and Kaws, the lands conveyed by the Cherokees to the United States in trust were in the eastern part of the Cheyenne and Arapahoe reservation of 1867. Henceforth it would have been impossible to locate the Cheyennes and Arapahoes upon the reservation except by further negotiations, if it were held that they had not forfeited their rights to the same by refusing to locate thereon, and that they had not accepted lands south of the Outlet in lieu thereof. Nor could the Cheyenne agreement of 1873 be confirmed unless modified with the consent of the tribes located on the lands designated in the agreement.
On June 13, 1883 Principal Chief D. W. Bushyhead and the Cherokee delegates in Washington wrote to Secretary Teller as follows: "In executing deeds and bringing to a termination the various questions arising from the location of the Pawnees, Poncas, Nez Perces, Otoes, and Missourias and Osages, none of whom were located according to the terms and mode prescribed by the Treaty of 1886, we desire to file with you our notification, as representing the Cherokee Nation, that no further locations or selected tracts can be made until appraised in accordance with the Treaty or the actual value of the land at the time of selecting is agreed upon. We have been offered one dollar an acre for the entire tract for grazing purposes, and shall expect to obtain whatever it is really worth before disposing of it. The Cherokee Nation will not execute further conveyances in whole or in part, save for a fair consideration."76
During the next half dozen years the attention of the Cherokees was turned toward the defense of their title to the unsettled lands in the Outlet and to securing a revenue therefrom, rather than to a consideration of the sale of the lands. By an act of March 3, 1885, the President was authorized to open negotiations with the Creeks, Seminoles, and Cherokees for the purpose of
76The letter is in O I A, L. 28213-1885, Special Case 48. The delegates were R. B. Ross and R. M. Wolfe.
opening to settlement under the homestead laws the unassigned lands in the Indian Territory "ceded" by these tribes in the treaties of 1866. Five thousand dollars was appropriated for the purpose and the action of the President should be reported to Congress.77 But the tribes were not then inclined to negotiate with the government for the disposition of their lands. On June 15 "an Indian international convention" attended by delegates of the Five Civilized Tribes assembled at Eufaula for the purpose of considering the matter. On the following day they resolved, with one dissenting voice, that the negotiations authorized by the act of Congress were "incompatible with the rights, interests and future security of the people of Indian Territory, and should not be entered into; and to secure the integrity of the Territory as Indian country, and the interest of the several tribes therein, we hereby pledge ourselves and our respective governments."78 The action of the convention appears to have been approved by the legislature of each tribe.
For more than a decade after the execution of the Cherokee treaty of 1866 the Cherokees derived little if any benefit from lands in the Outlet west of the Arkansas. In 1879 they collected more than a thousand dollars from cattlemen pasturing herds on the lands. In 1882 they collected for pasturage there more than forty-one thousand dollars. And on October 1 of the following year a lease 79 went into effect securing to the Cherokee Strip Live Stock Association the unoccupied Cherokee lands west of the Arkansas, excluding certain salines, for a term of five years, in consideration of the sum of one hundred thousand dollars a year, payable semi-annually in advance. In September, 1884, it was held to be no offense within the meaning of Section 2116 of the Revised Statutes, to negotiate, without authority from the govern-
78The resolution together with instructions to the Cherokee delegation is in Indian Affairs, 1886, pp. 158-159.
79The lease is in S. Ex. Docs., loc. cit., no. 17, pp. 152-153; also in H. Reports, 49 Cong. 1 sess., vi (2440) no. 1684, pp. 8-10.
ment, a lease of lands for grazing purposes, from an Indian tribe to a corporation.80 Opportunity to rent or lease the lands to cattlemen made the Cherokees reluctant to sell them to the government for any price which the government was willing to pay.
Toward the close of his period in office Secretary Teller took the opportunity to write a letter, with particular reference to the Cherokees, in which he explained that the right to pasture cattle on Indian lands with the consent of the Indians had never been doubted until very recently.81 He noted that the Department of the Interior, the courts82 and a Senate committee83 had recognized the right of Indians to receive compensation for the pasturing of stock on reservation lands. He said: "The privilege to graze cattle is but a license and not a lease.84 It conveys no interest in the lands occupied. It is true that the Indians did attempt to make leases with a fixed period during which the parties would, if the power existed, have all the rights of lessees, but doubting the power to make, as well as the policy of such leasing, I declined to approve the same as a lease, but did treat them as amounting to a license to be revoked by the Indians at will. All applications to the Department to lease lands have been uniformly denied for want of authority in the Department, but such refusal did in no wise interfere with the rights of the Indians to make such use of the lands as was consistent with the character of their title. The per-
81Teller to President pro tempore of Senate, Jan. 3, 1885, S. Ex. Docs., loc. cit., no. 17, pp. 1-9. The next year when Pitts Elllis asked the Interior Department for a permit to graze cattle on the Outlet, Commissioner Atkins advised him that the lands were within the possession and jurisdiction of the Cherokee nation, until sold and occupied by other friendly Indian tribes, and that his course would be to apply to the Cherokee authorities. Atkins to Ellis, Sept. 29, 1886, O I A., L. Letter Book 152, p. 298.
82Attention was called to United States v. George Cook, 19 Wallace 591. Teller thought that the principles enunciated in the case removed any doubt as to the right of the Indians generally to dispose of grass growing on their lands for grazing or other purposes.
83Report of Sen. Com. on Ind. Aff., June 22, 1874, S. Ex. Docs., 45 Cong. 2 sess., ii (1781), no. 74, p. 2.
84"The legal understanding of a lease for years," said the Supreme Court, "is a contract for the possession and profits of land, for a determinate period, with the recompense of rent." United States v. Gratiot, 14 peters 538 (1840).
mits now complained of as having been given by the Cherokees, were given without even notice to the Department, and neither the Cherokee Nation nor the parties holding such permits have ever asked the Department to approve the same. The Cherokees have a fee simple title to their lands and they do not recognize the right of the Department to interfere in the management of their affairs with reference thereto." In Teller's view, Section 2117 of the Revised Statutes recognized the rights of the Indians to dispose of the grass growing upon their lands; for if their consent were given to graze stock thereon, the statute was not violated, and the owner of the stock was not liable to the penalty imposed.85 He was aware that the time had passed when large and valuable tracts of land fit for agriculture could be held by Indians for either hunting or grazing purposes to the exclusion of actual settlers.86 He recommended that the portion of reservations not needed for the use of Indians be opened to white settlement, but not without proper compensation to the Indians.
In an opinion of July 21, 1885 Attorney-General A. H. Garland referred to Section 2116 of the Revised Statutes which provided among other things that no lease, or other conveyance of lands, from any Indian nation or tribe of Indians should be of any validity in law or equity, unless the same were made by treaty or convention entered into pursuant to the Constitution.87 He noted that the provision was very general and comprehensive, and that its operation did not depend upon the nature or extent of the title to the land which a tribe or nation might hold. He stated that whatever the right or title of the Cherokees to the lands of their reservation might be, the tribe was precluded by the force and effect of the statute from leasing any part of its reser-
85The section reads: "Every person who drives or otherwise conveys any stock of horses, mules, or cattle, to range and feed on any land belonging to any Indian or Indian tribe, without the consent of such tribe, is liable to a penalty of one dollar for each animal of such stock."
8718 Opinions 235. Garland's opinion also applied to the Cheyennes and Arapahoes, to the Kiowas, Comanches, and Apaches, and to their respective reservations.
vation, without the consent of the government of the United States. He said that a lease of land for grazing purposes was as clearly within the statute as a lease for any other or for general purposes. He submitted that the power of the Department of the Interior to authorize the Cherokees to make leases of their lands for grazing purposes, or that of the President or Secretary of the Interior to approve or to make the same, if it existed at all, must rest upon some law, and therefore be derived from either a treaty or a statutory provision. Since he knew of no such treaty or provision in regard to the Cherokee lands west of ninety-six degrees, he concluded that neither the President nor the Secretary of the Interior had authority to make a lease, for grazing purposes, of any part of said lands; and he concluded that their approval of such a lease made by the Cherokees would not render it lawful and valid. What Garland termed the "guardian care" of the government was to the Cherokees a two-edged sword.
The prompt removal of lessees from the Cheyenne and Arapahoe reservation in accordance with President Cleveland's proclamation of July 23 caused those in the Outlet to seek a renewal of their own lease.88 Secretary Lamar held that inasmuch as the association set up no claim or right of permanent settlement as against the Indian title, and as there was no dissatisfaction manifested by the Indians, it was not the duty of the Department of the Interior to interfere with the affairs of the Cherokee nation except in cases especially required by treaty with that nation.89 In 1887 he directed that the association be informed that any so-called lease or other arrangement into which they or any other parties might enter with the Cherokee nation for the occupation of the Outlet
88When the Cherokee National Council met at Tahlequah in November, 1886, Thomas Hutton, Charles Eldred, and John F. Lyons, representatives of the Cherokee Strip Live Stock Association, came to the council for the purpose of re-leasing lands in the Cherokee Outlet. They did not secure a re-lease on the lands, although it appears that they made lavish use both of liquor and money in an effort to do so. See the "strictly confidential" letter by Agent R. L. Owen to Com. Atkins, April 29, 1887, S. Ex. Docs., 50 Cong. 2 sess., iv (2613), no. 136, pp. 2-4.
with their cattle for grazing purposes or otherwise, would be subject to cancellation or discontinuance by the Department of the Interior at any time, whenever such action should be considered for the best interests of the Indians, or for any other reasons which that Department might deem sufficient, and that it would be subject to whatever legislation Congress might enact regarding that portion of the Cherokee country, as well as any general legislation that might be had affecting the occupation of Indian lands for grazing or other purposes.90
About July, 1888, five members of the House Committee on the Territories led by Chairman William M. Springer of Illinois, together with a half dozen other representatives, addressed a letter to the President in regard to the proposed renewal of the lease, and they appealed to him "to put a stop to the unlawful occupancy of these lands."91 They urged him to issue a proclamation directing all persons upon the lands for the purpose of grazing cattle thereon and "all other authorized persons" to depart therefrom with their cattle, horses, and other property on or before October 1. Springer was much interested in preventing the lease from being renewed. On July 13 he wrote to the President: "Prompt action is required on the part of the Government to prevent the consummation of this illegal proceeding. If a new lease is executed, and money paid thereon, the situation will be greatly complicated, and serious consequences may result."92 In view of the pendency in Congress of a bill to embrace the Outlet with Oklahoma and other tracts in a new Territory, and to protect fully the rights of the United States "whatever they may eventually be decided to be,"93 Secretary Vilas on September 28, two days before the expiration of the lease, ad-
90Report of Sec, Int., 1887, H. Ex. Docs., 50 Cong. 1 sess., x (2541), p. 31; see also Lamar to Com. Ind. Aff., Oct. 14, 1887, O I A., 4708 Ind. Div. 1888.
91The undated letter was received by the Interior Department July 7, 1888, and is in the Indian Office, 4708 Ind. Div. 1888.
dressed a letter94 to Principal Chief Joel Bryan Mayes95 conveying notice similar to that given to the association the previous year. He was advised that the United States would recognize no lease or agreement for the possession, occupancy, or use of any of the lands in the Outlet as of any legal effect or validity upon the rights of the United States or as conferring any right, authority, or privilege over the lands upon any lessee.
In an able reply to Vilas October 10 Mayes explained that the Cherokees never had, and never would interfere with any rights the United States might have in the lands.96 He stoutly insisted that under the treaty of 1866 and their patent there could be no question of the right of the Cherokees to exclusive possession and jurisdiction over the Outlet. He said that they had owned by patent, used, and occupied the country for more than a half century undisturbed, and expected to continue to use it—especially to derive a revenue from its various resources, its mineral, timber, and pasture privileges. In a mild letter of October 23 Vilas said that as yet he had had no occasion to define the line of demarcation between the rights of the United States and those of the Cherokees, and that no further action appeared necessary on the part of the Department of Interior.97 Before the close of the year the association secured a new lease of the Outlet for five years at a rental of $200,000 a year.98 Within a decade rentals had jumped from two thousand dollars to this amount and the Cherokees could only surmise what coming decades might bring forth.
94The letter under date of Sept. 28, 1888 is in Cong. Record, 50 Cong. 2 sess., Appendix p. 225. On the same day Vilas instructed the Acting Commissioner of Indian Affairs to see that proper notice, by advertisement in some newspaper or otherwise, should be "brought home" to the knowledge of any and every party negotiating for a lease of the lands. O. I. A., Int. Dept. Letter Book 68, pp. 109-112.
95In 1887 Agent R. L. Owen referred to Mayes as "a highly intelligent and prosperous half-breed Cherokee." Before he became Principal Chief in that year he was chief justice of the Cherokee supreme court. There is a sketch of his life in Hodge ii, 284.
98The negotiations preceding the lease are told in part in the letter of Owen to Com. Ind. Aff., Aug. 27, 1888, Indian Affairs, 1888, pp. 128-130.
Thus by 1889 the Outlet was to the Cherokees a fruitful source of income with a prospective future.99 The association, "the greatest live stock organization in the world,"100 seemed to be in an excellent position. The conditions under which it occupied the lands were favorable to complete possession. If it were intruded upon, the military force of the United States was called upon for protection without cost to the occupants. The farmer just across the border in Kansas, conducting in the same way a small business, was called upon every year for taxes upon his land and cattle; but no taxgatherer either on land or cattle was permitted to invade the Cherokee domain. For nearly a decade the association had occupied the region, half the time under a lease of questionable legality, which if not approved, had been permitted and not effectively opposed by the Department of the Interior. But it was held that the Department had done nothing that could be considered as an acknowledgment of the leases,101 or the right of the cattlemen to graze the lands covered by agreements with the Cherokees. The secretaries of the Department of the Interior had grown steadily worse for lessor and lessee in the execution of their business. Teller was favorable, Lamar and Vilas were indifferent, and Noble was a conscientious objector.
The third article in this series will deal with the serious and futile effort made by the Cherokee Commission in 1889 to purchase the Cherokee title to the Outlet.
99On November 28, 1888 a syndicate of ranchmen offered to pay the Cherokees $18,000,000 for their lands in the Outlet if the proper authorities of the Government would consent to the sale. This was an estimated price of three dollars an acre. The offer is in S. Misc. Docs., 50 Cong. 2 sess., ii (2615), no. 80, p. 20.
100E. E. Dale, "The Cherokee Strip Live Stock Association." Chron. of Oklahoma, vol. v (March 1927), p. 71. Concerning the organization of the affairs of the association Professor Dale says: "The Outlet lands were surveyed and the boundaries of each range defined. Wide strips were left for trails across the Outlet and lands were also set aside for quarantine grounds, with the result that the total amount used for grazing was reduced to a little over five million acres. This was divided among a little more than one hundred individuals, corporations and firms but some four or five hundred men were included in the organization while, including stockholders in the various companies, perhaps two thousand people were interested in the association. Ibid., 70-71. A map showing the division of lands by the association is in Chron. of Oklahoma, vol. ix (Sept. 1931), facing p. 268.