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Chronicles of Oklahoma
Volume 15, No. 3
September, 1937
HOW THE CHEROKEES ACQUIRED AND DISPOSED OF THE OUTLET

By Berlin B. Chapman

Part Three—THE FAIRCHILD FAILURE

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Parts One and Two of this study dealt with the acquisition of the Outlet by the Cherokees, the settlement of Indian tribes in the eastern end of the Outlet, and the lucrative business of leasing the remainder of the lands to cattlemen. Part Three102 is an account of a serious effort of the United States to acquire the Cherokee title to lands in the Outlet. It is the story of a commission under a vigorous leader, who in 1889 was the victim of an impossible situation.

Section Fourteen of the Indian appropriation act of March 2, 1889, provided for the appointment of the Cherokee Commission to negotiate with the Cherokees and other Indians owning or claiming lands west of the ninety-sixth meridian in the Indian Territory, for the complete cession of their lands to the United States.103 The Commission was authorized to offer the Cherokees




103Section Fourteen deserves careful examination because of the construction insisted upon by the Cherokees. It reads: "The President is hereby authorized to appoint three commissioners, not more than two of whom shall be members of the same political party, to negotiate with the Cherokee Indians and with all other Indians owning or claiming lands lying west of the ninety-sixth degree of longitude in the Indian Territory for the cession to the United States of all their title, claim, or interest of every kind or character in and to said lands, and any and all agreements resulting from such negotiations shall be reported to the President and by him to Congress at its next session and to the council or councils of the nation or nations, tribe or tribes, agreeing to the same for ratification, and for this purpose the sum of twenty-five thousand dollars, or so much thereof as may be necessary, is hereby appropriated, to be immediately available: Provided, That said Commission is further authorized to submit to the Cherokee nation the proposition that said nation shall cede to the United States in the manner and with the effect aforesaid, all the rights of said nation in said lands upon the same terms as to payment as is provided in the agreement made with the Creek Indians of date January nineteenth eighteen hundred and eighty-nine, and ratified by the present Congress; and if said Cherokee nation shall accept, and by act of its legislative authority duly passed, ratify the same, the said lands shall thereupon become a part of the public domain for the purpose of such disposition as is herein provided, and the President is authorized as soon thereafter as he may deem advisable, by proclamation, [to] open said lands to settlement in the same manner and to the same effect, as in this act provided concerning the lands acquired from said Creek Indians, but until said lands are opened for settlement by proclamation of the President, no person shall be permitted to enter upon and occupy the same, and no person violating this provision shall be permitted to enter any of said lands or acquire any right thereto." Act of March 2, 1889, 25 Statutes, 1005.

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the same terms of payment as existed in the agreement made with the Creeks on January 19, a price estimated at one dollar and a quarter an acre.104 A partial reason for such a commission was attributed to a statement made by Joel Bryan Mayes, Principal Chief of the Cherokees on February 13 before the Senate Committee on Territories, regarding consultation with the Cherokees.105

The Cherokees vigorously contended that by the language of the act the commission could present to them two propositions, between which they drew sharp distinction. They said that the first proposition was in the body of Section Fourteen, that it fixed no limit to the price, and that it provided that such agreement as might result from negotiations should be submitted to Congress for ratification, and also to the Cherokee National Council. The second proposition they saw in the proviso stating that the Commission was further authorized to make an offer of one dollar and a quarter an acre for the lands. In their view this proposition had no provision in it for ratification by Congress, and even if an





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appropriation should be afterwards made by that body to pay them for the lands, no agreement entered into would be of any binding force, save and except the sale of the lands. They held that this proposition admitted of no negotiations on any other subject, authorized none, and provided by law that, upon its acceptance by the National Council, the lands should "thereupon become a part of the public domain."

It is certain that Orville H. Platt, Chairman of the Senate Committee on Territories, understood such language as is used in the act to mean that if the Cherokees did not accept the offer of one dollar and a quarter an acre, the Commission was empowered "to go right on and endeavor to make another bargain," and that such agreement should be submitted to Congress for ratification.106 D. W. Bushyhead claimed that Senator Henry L. Dawes said to him on March 3 that "the provisions of the bill were, as Senator Platt stated, one unlimited as to price and the other upon the terms of the Creek cession."107 Dawes was the chief manager on the part of the Senate in the committee of conference which added the proviso.108 The next year he explained that there were two propositions. One was to give the Cherokees a dollar and a quarter an acre if they would take it, which proposition, he said, carried an appropriation to pay them down. The other proposition was,







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if they declined to take that, to enter into a negotiation with them for what they would take and report back to Congress.109

According to a report in a newspaper, Mayes from the first did not contemplate a sale of lands in the Outlet to the Government, but looked rather to the cattlemen for revenue from the lands. After he delivered a speech before a meeting of the Cherokee Strip Live Stock Association in March, 1889, an opportunity was given all those desiring to ask him questions. Among the questions asked was his opinion in regard to the Cherokee Commission, to which he replied: "That will amount to nothing. All they will do is to come down here and have a good time. We will not sell for $1.25 per acre."110 He said that if soldiers attempted to remove the cattlemen, an injunction would be served upon them. As for the "Boomers," he said: "We will take care of the 'Boomers.' You stay with us and we will stay with you."

Meanwhile the Cherokees were not deaf to offers of cattlemen who had made the lands in the Outlet of great value to them. On August 24 Willard Mason, a lawyer, who, as he said, was living on the border of the Outlet and acquainted with the situation, wrote to Secretary John W. Noble: "If you would order the Cherokee Strip to be cleared of settlers and cattle by November 1st 1889, doubtless the Cherokee authorities would be willing to accept the offer of the commissioners. This action would work





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no injury to the Cattle interest, as it gives ample time to remove to winter quarters."111

In the summer of 1889 the Cherokee Commission was instructed112 that if the Cherokee authorities rejected the proposition of one dollar and a quarter an acre, or an offer of $7,489,718.73 in addition113 to sums chargeable against the lands, they should "then proceed to negotiate for the extinguishment of the claim of the Cherokee nation to all lands lying west of the Arkansas River, upon such terms as may be just and equitable," taking into consideration the appraisement, the claims or rights of other Indians to portions of the Outlet, the lands set apart for the Chilocco Industrial School, the several amounts chargeable against the lands, and the validity of the Cherokee title. A map compiled under the direction of Commissioner Oberly in the same year and used to illustrate the compilation and instructions transmitted to the Commission, showed the Cherokee lands west of ninety-six degrees as part of the "lands originally ceded to the Cherokees."114

The Commission was instructed that so far as the Cherokees were concerned the lands occupied by the Osages and Kaws were









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not subject to negotiation because they had been paid for and a deed executed to the United States in trust for the occupants. Instructions stated that the Cherokees should not be prevented from securing a just and fair consideration for the four reservations just west of the Arkansas, even though deeds had been executed to the United States in trust for the Indians occupying the reservations. It was observed that the consideration named in the act of Congress requiring the execution of the deeds, as well as the $300,000 appropriation in 1880, was to be paid out of funds due the Cherokee nation for lands lying west of the Arkansas, and not due for the four reservations as such. It was explained that no specified price was fixed on the lands, and that the price determined by the appraisement had been insisted upon by the government and objected to by the Cherokees115 who claimed it was inadequate.

According to the Cherokee treaty of 1866 the Cherokee lands west of ninety-six degrees disposed of by the United States to friendly Indians should be taken in quantity not exceeding one hundred and sixty acres for each member of any tribe settled there; the lands, according to the treaty should be sold, occupied, and conveyed in fee simple to the tribes thus settled. The lands in the Outlet set apart for the Cheyennes and Arapahoes by the treaty of 1867 greatly exceeded one hundred and sixty acres for each member of the tribe. In 1889 these lands had not been occupied by the Cheyennes and Arapahoes, paid for by them, nor had the Cherokees conveyed the same in fee simple. The price of the lands had not been determined as prescribed by the Cherokee treaty of 1866, because there had been no negotiations beween the Cheyennes and Arapahoes, and the Cherokees; and according to the treaty the President could fix the price only after those parties had failed to agree on the same. While the Cherokee Commission was not clearly advised why the United States possessed title to



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this portion of the Outlet (unless it be that the Cherokees had never acquired title to the Outlet), which title could have been conveyed to the Cheyennes and Arapahoes, the Commission was plainly advised that title had been so conveyed by the United States. It was noted that the Cheyenne and Arapahoe treaty of 1867 contained no provision stating when occupation should begin or declaring forfeiture in the case of non-occupation. Attention was called to the fact that the continued existence and binding force of all the provisions of the treaty had been recognized by Congress in annually appropriating the several amounts therein provided for, amounting to about $38,000 per annum. The Commission was advised that the Cherokee lands designated in the treaty were secured to the Cheyennes and Arapahoes by solemn treaty stipulation, and that these tribes had made no treaty ceding them or agreement of relinquishment that was of any binding force or effect. The compilation prepared for the Commission said of the Cheyennes and Arapahoes: "They have committed no act of forfeiture. Their title stands today as it did at the date of the ratification of the treaty of 1867. As between the United States and the Cheyennes and Arapahoes the title to the lands is in these Indians, and they have a perfect and indisputable right to now remove to that reservation and enjoy all the privileges guaranteed to them by the treaty.... The United States has conveyed the lands to the Cheyennes and Arapahoes, and the title thereto is in them. The question of the payment therefor is consequently one between the United States and the Cherokee Nation."

Since there was no provision made for the location and settlement elsewhere of the Indians occupying the lands to be negotiated for, the Commission was instructed, in the event of successful negotiations, to provide new reservations suitable to the requirements of each band within the reservation then occupied by such band, or to provide for allotments in severalty within the reservation so occupied, or to provide for new reservations, or for the allotment of lands in severalty in some other portion of the

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country lying west of the ninety-sixth degree. The Commission might also make provision for the removal of the Indians to lands east of that degree, in which case negotiations would be necessary with the Indians who owned the lands.

When organized on June 29 the members of the Commission116 were General Lucius Fairchild of Wisconsin, chairman, General John F. Hartranft of Pennsylvania, and Alfred M. Wilson of Arkansas. There was no commission more important in the federal management and disposition of the lands of Oklahoma Territory.117 Early in July, Mayes was given official notice of the appointment of the Commission and was asked to take steps to secure necessary arrangements on the part of the Cherokee nation to meet them in regard to the matter provided for in the act of March 2.118 Mayes replied that the Commission would be kindly and courteously received and that he felt sure they and the Chero-


116Fairchild had already survived his popularity as a man in politics, though not as a veteran of the Union Army. There is a sketch of his life by F. L. Paxson in the Dict. Amer. Biog. vi, 253-254. For the latter part of 1889 and the early part of 1890 the Fairchild Papers, deposited in the Library of the Wisconsin Historical Society, are a valuable source of information. From the field of operation Fairfield wrote a number of letters to his wife, Frances, whom the family called "Frank." The letters turn a flood of light on the human side of the negotiations for the sale of the lands of the Outlet, and on the development of the policy of depriving the Cherokees of the use of the lands. The letters in manuscript are filed in chronological order. For an account of them see Louise P. Kellogg, "The Fairchild Papers," Wis. Mag. of Hist., (March 1927) vol. x., 259-281.

Hartranft had served two terms as governor of his State. There is a sketch of his life by Witt Bowden in the Dict. Amer. Biog., viii, 368.

A half dozen persons were offered a place on the Commission before Fairchild and Hartranft were named. The list follows, the first three appointments being made on March 30, 1889: George D. Robinson, Massachusetts, chairman; J. Otis Humphrey, Illinois; Alfred M. Wilson, Arkansas; April 27, John H. Baker, Indiana, Chairman; May 7, W. C. Goodlow, Kentucky; May 20, J. S. R. McMillan, Minnesota; June 20, Fairchild; June 21, Hartranft; June 28, Fairchild notified that he was designated as chairman. O. I. A., Ind. Div., Index to Letters Sent v, 77.

Each of the commissioners was allowed his railway fare and transportation expenses, and five dollars per diem during the time of actual service, in lieu of all other expenses, and was allowed a compensation at the rate of ten dollars per diem during the time of his actual service.





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kees would fully understand each other on the important subject which appeared to be a proposition to buy about one half of the Cherokee public domain for homesteads of citizens of the United States. He asked that the Secretary of the Interior, if consistent with his duty, furnish him the full instructions given the Commission. Two sentences in the letter deserve particular attention: "The Cherokees are today living under a constitutional government, well regulated. The difference between the Cherokee Government and that of the States is only the land tenure which is fixed by the constitution of the Cherokee Nation."119

Soon after receipt of instructions the commissioners proceeded to the Cherokee country and late in July were escorted "into Tahlequah with honor."120 Fairchild surveyed the situation and summed up the difficulties better than his companions did. In a letter of July 25 he said: "The first impressions I have, from talks with natives is that the negotiations will be slow and perhaps not successful. They seem to be much opposed to the selling of their lands, but 'we shall see what we shall see' in a few days."121 Some days later he wrote that difficulty was contemplated "in the prosecution of the Cherokee sale, because of their bitter partisan fights. What one side proposes the other side is pretty sure to oppose. That is confidential."122

On July 31 the Commission addressed a letter to Chief Mayes stating that they were ready to submit to the Cherokees the proposition set forth in the act of March 2, and requested that they be informed upon what day and to whom the same should be sub-









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mitted.123 On the following day Mayes replied that he would at their convenience receive such proposition as they might see proper to submit. "In this connection," he said, "it will be appreciated by this department if you will make absolutely explicit your presentation of the subject you wish to submit, giving full details of the law under which you act, your authority thereunder, your instructions in the premises—to obtain which the Hon. Secretary of the Interior has referred me to your Honorable Commission—as well as the details and purposes of the proposition itself. It will give me pleasure," he said, "when I shall be advised properly in the premises to act with intelligence, to advise you of the status of our laws in relation thereto, and when and to whom it may become my duty, as Principal Chief, under the laws and constitution of the Cherokee Nation, to submit your proposition."124

In a letter of August 2 the Commission quoted Section Fourteen of the act of March 2 and their instructions to the effect that they were to offer one dollar and a quarter an acre for all lands covered by article sixteen of the treaty of 1866, lying west of the Arkansas.125 Sums previously paid, or $728,389.46 should be deducted from the total amount. But the Commission refused to fire the Bertha in the first volley. They omitted the part of their instructions authorizing them to negotiate upon just and equitable terms for the lands if the offer of one dollar and a quarter an acre should be rejected. The point omitted was the one uppermost in the mind of the Chief if the lands were to be sold at all.

On the same day there appeared in The Telephone, a Tahlequah newspaper, the following certificate dated July 29, 1889, and signed by Chief Mayes:

"This certifies that I have received an offer from Williamson, Blair & Co. to pay to the Cherokee Nation for a fifteen years lease







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of the grazing lands of Cherokee Nation, West of the Arkansas river, including the present lease of five years for $200,000, per annum, as follows:

"For the second five years, $400,000, per annum; for the third five years $720,000, per annum, making in all for the fifteen years, $6,600,000.

"Williamson, Blair & Co. is a syndicate within themselves, and members of the Cherokee Strip Live Stock Association. This offer stands approved by Maj. Drumm and other prominent members of the association. Mr. Williamson is the man who raised the bid of the Association from $175,000 to $200,000. I am assured to-day that this offer will be made at the next session of the National Council."126

Mayes, for reasons commendable or corrupt, had no desire to sell the lands to the government at the price offered by the Commission. He recognized receipt of their letter on August 3 but because of the pending election postponed further action until after August 5. He refused to call the National Council and on August 9 the commissioners were authorized to depart for their homes if they thought nothing could be accomplished before the meeting of the Council on the first Monday in November.127

Three days later in a letter128 to the Commission, Mayes explained that the calling of the Council would not facilitate the matter since no proposition to sell a part of the Cherokee country could be entertained without an amendment to the constitution.129 He noted that since the general election did not take









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place before August 1891, no action could possibly be had until the assembly of the council following that election. He considered the offer of the Commission "not only vague but misleading." After reviewing the history of the Cherokee title to the lands, he said: "By your proposition $1.25 per acre is offered by the United States for all of the title or claim [or] interest of the Cherokee Nation to all that part of the Indian Territory lying west of the 96th meridian known as the 'Cherokee Outlet,' excepting that part of the Outlet east of the Arkansas River which has been heretofore conveyed and paid for. This is the whole of the body of the proposition except that certain sums are to be deducted from the gross amount when found, and the seemingly unnecessary suggestion to add all the acres together and multiply the total by $1.25 to find the gross amount offered. The gist of the offer is in the term 'Outlet' which your Honorable Commission may understand to mean and describe one tract of country and the Cherokee citizens another. It is understood that the proposal of the United States to abrogate the 16th Article of the treaty of 1866 and purchase the lands there defined will be submitted to this Nation in the terms used by your Commission, and according to your construction of the act of Congress empowering you to act, and of your instructions from the Department and not according to the construction of those sources of your authority by the Cherokees.

"Such being the case I am forced to consider the term 'Outlet' as used advisedly in your proposition to describe all of the country originally conveyed by the United States to this Nation which lies west of the 96th meridian." Mayes pointed out that the Cherokees had no longer any pecuniary claim or interest in the lands occupied by, sold to, and conveyed by deed, to the Poncas, Pawnees, Nez Perces, and Otoes and Missourias. He added: "To accept now what might be construed as an invitation to unsettle the status of these tribes by including their lands within the Cherokee country would be in my judgment an act of bad faith." He expressed the belief of the Cherokees that Congress

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had no intention to speculate at their expense in the interest of citizens of the United States who desired lands in the Outlet, and that the government would "see to it that our weakness as a people shall be no encouragement to those who would trespass upon our lands or despoil us of our property rights."

On August 13 Fairchild and Wilson replied that they considered the offer "explicit and exact," that the necessity for constitutional amendment was a surprise to them since transfers of lands had been made by the National Council, and that the United States would be satisfied by such a transfer.130 They informed the Chief that it would be their duty and pleasure to return to Tahlequah when the National Council met in November and that they would be ready to complete an agreement embodying the offer made, in case it were acceptable to that body. They said that on the morrow they would leave to prosecute their labors in other parts of the Territory, and gave their address as Muskogee. A few days later they departed to their homes. It was believed that most of the tribes would consent to relinquish their property for the price willing to be offered by the government, but the Cherokees had shown no disposition to sell their lands at any price.131 Wilson soon returned to the Cherokee country and in September was engaged in making public addresses to the Cherokees, advising them to accept the offer of the Commission.132

On September 12 Fairchild said plainly that in his opinion no progress could be made by the Commission so long as the Cherokees believed that the United States would permit the lands







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to remain under lease simply as a cattle pasture.133 He noted that there was a wide-spread and rapidly increasing public opinion in favor of the seedy opening of another portion of the Indian Territory to white settlement and in opposition to the continued use of immense tracts of good farming lands there for the purpose of pasturing cattle only. He believed that the Cherokees would accept the price offered by the Commission if they understood that the Outlet would be filled up with friendly Indians in the event of their refusal to sell the lands. He said: "Several million acres of good land lying west, south and east of Oklahoma can be opened to white men if the Outlet is used even as a temporary home for Indians. But the Outlet should not in my opinion, be used as a home for Indians if it can be procured for white men at a fair price. It is good land for white men and they should have it if possible. But if it cannot be procured of the Cherokees for white men, then the next best course to pursue is to put Indians thereon and let white men have the lands now occupied by tribes in other portions of the Indian Territory south of the Outlet."

Wilson said in an unofficial way that he believed public sentiment was for the sale of the lands and that unless the Council were "bought" by the cattlemen who would have to "pay liberally" the commissioners would succeed in November.134 On September 22 he said in regard to the purchase: "But the cattlemen stand in the way, and I so wrote to Sec. Noble some days ago and suggested that the government indicate that the cattlemen would not be permitted to hold the Outlet for grazing under lease or otherwise; or if he deemed it best so to write me and I would preach it extensively to my fool Kin, and thus disarm Chief Mayes and strengthen me."135 A few days later Horace Speed, Secretary to







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the Commission, said in a letter to Fairchild: "After much labor I have just got off to the President a letter as strong as I can make it asking that the cattle be ordered off the Outlet, and giving reasons that would win any man."136

In a letter of October 1 Acting Commissioner Belt explained that cattlemen had been permitted to remain upon the lands of the Outlet in pursuance of the policy announced by Secretary Lamar in 1885.137 He reviewed the rights of the government to remove cattlemen from the Outlet but made no reference to the letter in which Secretary Teller championed the rights of the Indians to grant grazing privileges.138 He said that if the offer for a fifteen years lease had been made by the syndicate its design and purpose was undoubtedly to defeat the authorized negotiations for the sale of the lands to the United States at any price in order that they, the cattlemen, might continue in the enjoyment of the grazing privilege which they were suffered to have and enjoy to their great profit. And he concluded that if the charges of interference were clearly established the cattlemen should be given due notice and reasonable time to remove from the Outlet, and without the Indian country.

Secretary Noble, who was not much impressed with the validity of the Cherokee title, was informed that soon after Congress authorized the appointment of the Commission the Cherokee Strip Live Stock Association had proposed to lease the lands at rentals published in The Telephone on August 2. On October 4 he wrote that his views were not effected by a desire to force the Cherokees, but by a very earnest purpose to resist what he considered inter-







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ference by a powerful corporation with the business of the government and strongly tending to prevent the Indians from giving a fair consideration to the propositions the government had to offer; he considered that the interference was in a form and at such a time and on terms which were presumptuous, if not fraudulent and criminal.139 He said that his views tended strongly to a proclamation by the President ordering the syndicate to remove the cattle from the Outlet, but that he could not say whether executive action would be taken. He informed Wilson on October 16 that he expected to send him some further assistance in the way of either a letter to Chief Mayes, or a proclamation of the President soon.140

Noble's assistance was given in the form of a letter to Chairman Fairchild in which he endeavored to show that the Indians should accept the "munificent" offer of the government.141 The letter, to be used as Fairchild deemed best,142 was a warning and a threat to the Cherokees. Noble described and criticized the association which proposed "to outbid the United States" and expressed the unquestionable power of the latter "to sweep out this syndicate as an unlawful intruder upon the Outlet" if a lease with the Indians were formally entered into. It appeared to him that the cattle syndicate had no authority to make a lease such as was proposed in the certificate published in The Telephone on August 2. He explained that the offer of the United States was at least seven million dollars in addition to payments already made, which, upon interest at five per cent would net the Cherokees yearly quite









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$350,000; that the credit of the United States was superior to that of the syndicate and that in general the offer was better than the "extravagant" proposal made by the cattlemen. He reviewed the history of the lands in the Outlet, pointed out that the Indians were the wards of the government, that leasing, unless "made by treaty or convention entered into pursuant to the Constitution"143 was illegal, that the leases had never been approved by the Department of the Interior, but had been protested against, that the proper officers of the government could declare them to be void and remove the lessees; and he concluded that the lessees should be compelled to leave the Outlet with their property on or before June 1 next.144

It was the opinion of the Secretary of the Interior that the government already had a fee simple title to the Outlet, subject to the use its title indicated, and that the lands could be settled with adverse tribes without paying the Cherokees more than the appraised value of 47.49 cents an acre. He stated that the title of the Cherokees was precarious, and liable to be defeated utterly since the United States probably had a superior title which would be asserted if the circumstances of the American people required that it should be. He explained that the government was "seeking this land only for the good of the people, to furnish new homes for the vast number of her citizens who wish by their labor to redeem it from a wilderness; from plains roamed over by scattered herds, and to give it for homesteads, farms and the nurseries





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of Americans." Noble's letter was in harmony with the recommendation of Agent Leo E. Bennett that the Department of the Interior, by any means at its command, could not too vigorously emphasize the assertion of its rights.145 Public opinion demanded that the Cherokees should be punished if they refused the price offered by the government.

Fairchild realized the necessity of stern measures on the part of the government if the lands were to be secured. "If matters do not go to suit me," he said privately, "I shall skip this Commission in short order."146 The Commission147 returned to Tahlequah October 30 and were there armed with the Noble letter.148

"This people are greatly excited over the selling of the land," wrote Fairchild October 31, "and I expect that the Council will be a lively gathering. It convenes next Monday. I have not much hope of success, but it is barely possible. They may have more horse-sense than I now give them credit for. Private.149 On November 2 Fairchild transmitted to Mayes the official letter of October 26 as signed by Noble himself, and two days later he transmitted to him a copy of the opinion of Assistant Attorney-General Shields of October 31 to the effect that the "Cherokee











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Nation"150 was authorized to relinquish to the United States whatever title it might claim to the Outlet and that "nothing in its constitution and the amendments thereto" could present any legal obstacle to such relinquishment. Copies of the opinion for distribution were promised soon.

Mayes promptly challenged Noble's warning and threat. He referred to Noble as pretending to take the responsibility of removing cattle that had been grazing on the lands of the Cherokees for the past ten or twelve years by permission of the Cherokee nation, from which source the Cherokees had been deriving a considerable revenue, and which privileges the predecessors of Noble never pretended to interfere with. "I will simply say to you," Mayes wrote to Fairchild, "that the Cherokees do not recognize the right of Secretary Noble to interfere with this land that has belonged to the Cherokees since the purchase and ownership of said land, but will continue to collect said revenue for this grazing privilege until Secretary Noble [shall] see fit to deprive the Cherokees of the revenue by force; even then the Cherokees will endeavor to protect their right in the premises in a legitimate way."151 In regard to Shield's opinion of October 31 he said that his official position, conscience, and sense of duty would govern him in the matter, "and not the opinion of the Assistant Attorney-General, nor the act of Congress creating your Commission which has no connection with this matter."

Noble looked upon Mayes as "playing a very humble part indeed" in the controversy, and was not disposed to take offence at anything he might say. He was more interested in "persistent





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action against the parties really responsible for this opposition," and hoped for the success of the Commission. In reply to Fairchild's inquiry regarding provisions for removal of intruders152 and other concessions on the part of the government, Noble said on November 9 that while there was a good deal with which he was not at present familiar, he did not think it advisable that much be said on the matter until the Cherokees had shown a very decided disposition to concede to the proposition of the government. He said he was advised that someone representing the cattlemen was coming to see him, but he assured Fairchild that he would not relent to the damage of the Commission. He said that the cattlemen must go at the time stated, or if any concession of time were made to them, it would be only after the terms for the sale had been agreed upon. "I will not make any provision or condition with them," said Noble, "until it is agreed that the cession shall be made."153

Two days later Noble wrote to Fairchild that Major Warner had just had an interview with him in regard to a longer time for the removal of cattle and had been told that when the cattlemen had earned the favor of the Secretary of the Interior, he would be inclined to give it, but that if he were blocked in the negotiations they must look out for themselves.154 "I shall attri-







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bute the want of success of your Commission to the cattlemen," said Noble, "and not to the Indians." He said that he was thinking of issuing a formal order soon to the cattlemen "to get out of the Outlet," and that they must do so by June 1. "If they subsequently bring your mission to a successful issue," he said, "I can supplement it by a more gracious proclamation."

Secretary Noble in Washington, occupied with sundry duties, could regard the acts of the Principal Chief of the Cherokees with gracious indifference; the Commission at Tahlequah could not. Fairchild believed that Mayes had put himself squarely against selling the Outlet and was in the pay of the cattlemen. On November 10 he wrote: "We shall have one more shot at them soon, though it will not be through the Chief as we shall probably ignore him entirely hereafter and address the National Council direct. I've been as mad as a March hare for 24 hours. If the President does not back Noble and this Com'n by issuing an [order] to remove the cattle by June 1st I shall pack my 'grip' and go straight to Madison, Wis.155 Nor did the commissioners always get along well with the populace who seemed to talk about nothing but the offer of the government to buy their lands. "Some of these people," said Fairchild, "look upon us as a lot of land thieves coming here to steal their lands from them."156

The Commission had little to gain by addressing the National Council direct; an appeal from Oliver Cromwell to the Rump Parliament would have promised as much success. In a letter addressed to the National Council November 14 they reviewed the history of the Cherokee title, the Chief's "requests" for negotiations, the position of Secretary Noble in regard to the removal of cattle, and they presented the "liberal" offer of the govern-





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ment as "an open business proposition."157 They did not fail to remind the Council that if the government did not open the Outlet to settlement, the effort would be the greater to open lands to the south occupied by Indians "with no titles," and that as a matter of avoiding complaints of the Indians (and whites) and as a means of economy to the government, these undesirables could be moved north to the Cherokee home reservation and settled thereon158 in accordance with the provisions of article fifteen of the treaty of 1866.

On the next day Mayes advised the Commission that the communications would be transmitted to the Council, made certain explanations regarding his statement of February 13 before the Senate Committee on Territories, and quoted at length from Secretary Teller's letter of January 3, 1885, regarding the rights of the Cherokees in the Outlet.159 He did not flinch from the intimation that the Cherokee home reservation might be filled up with undesirable Indians, but said that the treaty provision cited was entirely inoperative, as there were no unoccupied Cherokee lands east of ninety-six degrees. He considered that it would create disruption and perhaps war to attempt to establish another Indian government within the Cherokee nation; he termed it "unreasonable" to suppose that the government would make such an attempt and he said it looked like "folly to talk about such a thing."160









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On the same day Fairchild reported to Noble that Mayes was "bitterly opposed to the sale," that the commissioners had been treated with slight courtesy, that the Indians did not believe that the cattle would be removed, and that never in his life had he been "among so dishonest a lot of people" if he could believe one half of what he heard from the Cherokee citizens.161 Some days later he wrote: "To 'lobby' here would mean to have money to scatter. We shall roast the rascally Principal Chief before we leave. We have the letter prepared which will convict him by his own statements that he has been completely controlled by the cattlemen to the injury of his people. He has ignorantly put himself in writing to that effect."162 Before the close of the month Fairchild began to sense failure. "The offer of the government will not be accepted," he wrote to his wife. "That seems quite certain, but I don't want to say so out loud, so keep mum. I am disgusted with several matters and as I now think, I'll quit the concern after we get through with our failure here. That's private also."163

In unmistakable terms Secretary Noble stated his position on November 25: "I will not back down in this matter until I have taught all the Cherokees that I am their friend and am not acting a double part. My purpose is to give them far more than any claim they might possibly have is worth. Indeed I am inclined to the conclusion, although I have not decided the matter officially, that they have no title whatever."164 On November 29 he secured an opinion from Shields stating that all persons claiming to be in the Outlet solely by or through leases made with the Cherokee nation were there without authority of law, and formal notice and order might be given by the Secretary of the Interior requiring each and everyone of such unauthorized persons to leave the









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Outlet and remove their property therefrom on or before a day to be fixed in the notice.165 About the same time Noble by telegram advised Fairchild to notify the Cherokees that the offer would end with the final adjournment of their Council without acceptance, but to use his own discretion.

In a letter to the President on December 2, Noble said he did not believe that the Commission could be successful without authoritative notice to the cattlemen that they must quit the Outlet by June 1, 1890; unless the approaching delegation might agree for all the cattlemen to vacate during the next summer, and let the agreement be made public.166 On the same day he wrote to Fairchild that he had not been able to issue the order intended to the cattle syndicate, owing to the approach of some delegations from the Cherokees and the disposition of the President to see them first.167 He said that from all appearances the struggle would be transferred to Washington and that Fairchild should feel free to come there if he deemed it best. "The only thing I dislike about it is the apparent retreat from the field," said Noble, "but if the Cherokees send their delegation here I see no good reason to hestitate to follow them."168

Meanwhile the Commission were, in the words of Noble, "awaiting the slow movements of the Head Chief of the Cherokees" and the National Council. The Cherokee Senate Committee considered that before action should be taken, information should be obtained on "several vital points."169 On November 22 the Com-











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mittee recommended that the "second or proviso offer" in Section Fourteen of the act of March 2, 1889, or any other offer that proposed that the Cherokee nation should relinquish possession or jurisdiction over the lands until paid for, be rejected, and that the Council ascertain if, under the provisions of the first clause of the section, a fair price could be secured for the lands with proper security for its fulfillment.170 They noted that the section as passed included the Osage lands, and they recommended that no title be further granted to the Indians on the four reservations just west of the Arkansas, save that the Cherokees should receive the full amount171 appropriated for the Osage lands with interest from the date of the transfer. They recommended that if a committee were appointed to meet the Cherokee Commission it should not be with general power to negotiate, but simply to confer with them and submit propositions to the Council which would pass on each important matter and determine whether it had the requisite power to do so under the constitution.

An act approved December 3 accordingly authorized the Principal Chief to appoint three persons who should confer with the Cherokee Commission and report during the present session of the Council. On December 5 Mayes appointed W. A. Duncan, D. W. Bushyhead and Adam Lacie as a committee. Like their chief, they were not to be spared from the wrath of the Commission. On December 7 they expressed regret that a formal proposition complete in all its points had not been furnished them by the Commission.172 They stated that it would be impossible







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for them to arrive at an intelligent conclusion of the matter in the time allowed by the act of Council,173 that it was the desire of the Cherokee nation to comply with the wishes of the United States when it could be done with safety and a fair regard for their interests but that they could not accept the offer of a dollar and a quarter an acre under the proviso in Section Fourteen. They requested the Commission that if present instructions limited the offer to a mere promise to pay the Cherokees when Congress should appropriate the money and after the lands had become public domain, that they take steps to secure instructions authorizing them to offer "a fair price" for the lands and in excess of a dollar and a quarter an acre, under the first provision of the section mentioned.

In a conference with the committee December 9 Fairchild, like a soldier, said that the Commission was there to carry out present instructions and not to ask for further instructions regarding the cession. He said that not one effective step had been taken looking toward a settlement of the question during the five weeks the Commission had been in Tahlequah, and that what they wanted was an answer. He added: "If you say yes or no—amen! That settles it."174 He said that in the opinion of the Commission the day of leasing the Outlet had passed and forever; that the United States would never permit a monopoly of six million acres of land, in the present state of the country, to be used as a cattle pasture. Speaking in his individual capacity he said: "Next January your cattle money ceases, and forever. The Government has declared on the side of justice, and by this decision your resources are crippled entirely as to this amount. Refuse to answer this





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offer and you will be brought to the United States in financial distress." He said that if the Commission were considering the matter from the standpoint of the United States only they would have shaken the dust of the Cherokee soil from their feet, "and gone some time ago, but we know that it would have been bad for the Cherokees." He said that if they refused the offer it would be "a sin before heaven; they will deserve the fate I pray God they may never come to.... For God's sake do not let it be any act of yours that the Cherokees are brought as suppliants to the United States." He said that the $18,000,000 offer made the year previous by a syndicate of ranchmen was not only fictitious but was made in violation of the law of the United States.175 He rubbed an old sore to no avail when he called attention to the incumbrance on the home reservation and said that serious consideration was being given to the matter of moving four or five tribes from the west and settling them on the unoccupied lands of the Cherokees east of ninety-six degrees. The minds of the Cherokee committee did not stray far from Section Fourteen. The committee insisted that there were two propositions in the section while the Commission said that a proviso limits whatever precedes it. The committee were desirous of discussing other questions which they considered preliminary and they did not think it was fair or right for the Commission to say "$1.25 per acre or nothing."

During December there was a noticeable rise in temperature in the negotiations. Early in the month Fairchild wrote: "I'll never again have any dealings personal or official with the d——d whelps, rascals and boodles who control affairs in the Cherokee nation....I am provoked and mortified at the cowardly and most discourteous manner in which these fellows here have treated us and the U. S. Mad is no name for it, and with my colleagues have, lately begun to spit out our minds in places and to persons who will take it to the rascally Chief direct. Before we leave we



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propose to take a sling at the 'cuss.'"176 Before the middle of the month he wrote: "These leaders are the most corrupt and cowardly rascals I've ever met anywhere. We have taken off our gloves somewhat and now hit as hard as we can. Today we have sent a letter to the commission which met us in which we tell them that they acted in a most ungentlemanly way that their action is contemptible."177

It is difficult to determine what "sling" the Commission took at Chief Mayes, or how many they took. However on December 16 they named the tribes in Indian Territory located on the reservations west of the five civilized tribes, except the Osages and Kaws, but added in the Quapaws, and asked Mayes to state separately for each tribe such objections as he might have to their being settled in the Cherokee home reservation in accordance with article fifteen178 of the treaty of 1866. The objections, it was said, could then be submitted to the President who should determine whether any of them were sufficient. To fill the cup of bitterness to the brim the Commission stated that all the smaller tribes named could be settled on unoccupied lands in the said reservation in compact form while the large tribes could be settled upon contiguous tracts of excellent unoccupied lands. They said the Cherokees would be paid for the lands as contemplated by the treaty; that the Commission thoroughly understood that they preferred to have Indians replace whites who were occupying the lands without compensation. It was observed that the Cherokees after generations of labor by missionaries and school teachers had







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become an educated, intelligent people who might well desire to aid their less favored brethren on the road to a higher civilization and prosperity, by receiving them into their midst and giving them the benefit of their example and experience. They requested that the answer to the letter be sent in care of the Secretary of the Interior.179 Mayes evidently did not take the trouble to list objections but asked to be informed by what authority the Commission said such things.180

On December 27 the Commission withdrew their offer stating that the government was unwilling to be embarrassed in the slightest degree in any course it might desire to pursue in reference to the lands of the Outlet.181 In his reply the next day Mayes said that during the session of the National Council many efforts had been made by both houses to give the Commission a reply to the offer, but that the two houses had materially disagreed upon the manner in which the proposition could be entertained, as to who had the authority to sell the lands and the manner in which they should be sold if a sale could be agreed upon. He also said: "Many questions will naturally arise under a proposition of this kind, which makes it a difficult matter for the Cherokees at this time to give you an answer to the proposition which recedes one-half of their country to the United States Government at $1.25 per acre. When it comes to an Indian putting a price on his land he is at a loss, for he has never considered it a matter of speculation. The idea of 'Mother Earth' to him (Indian) is almost a literal expression, and I believe I can safely say to you from what knowledge I have of the Cherokee people that they will not consent to sell those lands for $1.25 per acre, and further if they are ever induced to sell their country, they will certainly demand its full value."182









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The Chief said that the Cherokees knew beyond a doubt that they could realize an amount far in excess of the offer made, and that the Outlet was "the last show for land for homes for their people." He said that after parting with over eighty-one million acres east of the Mississippi, the Cherokees looked earnestly and with much concern over the demand for the sale of the Outlet. He asked if it would not look fair on the part of the government to offer even more than the value of the lands as it was a final deal with the Cherokees, one that began to look like closing them out so far as the ownership of land was concerned. And he added: "It begins to look to the Indian like he will soon be a trespasser on the soil of his nativity."

Before the close of the year the Commission left Tahlequah with prospects for a sale more gloomy than ever. The position maintained by the Cherokees was a strong one. If the words "negotiate with the Cherokee Indians," in Section Fourteen183 of the act of March 2, 1889, are given their ordinary application and it is remembered that an agreement for a greater price than one dollar and a quarter an acre would have become binding on ratification by Congress, it seems that the Commission could well have offered more than the specified sum. The original letter of instructions to the Commission provided for it; the reason for not increasing the price may be attributed to Noble's suggestion that the Cherokees should practically accept the offer before concessions were made, and to Fairchild's belief that the price offered was three times too large. Mayes had explained to the Senate Committee on Territories February 13 that the Cherokees did not want to sell the lands. In fact they neither accepted nor rejected the offer of one dollar and a quarter an acre made by the Commission. Fairchild could doubtless have waved an offer of twice that amount over their heads with little danger of prompt acceptance. The Cherokee delegates in Washington said: "The gist of



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the whole matter is this: Our twenty-four thousand people own this land, and if some sixty thousand other people want our land, we want them or the Government, if it acts for them, to pay us the full market value for the land, or secure us that value by some equitable means."184

Fairchild resigned from the Commission on January 1, 1890. "Because I am not in physical condition to do the work," were the words in which he assigned the reason for his resignation.185 The people of Wisconsin may well remember Fairchild as an able governor, and his diplomatic service abroad and his service on the field of honor should not be forgotten. In Indian Territory he was not spared pains of a Gettysburg wound. But his resignation made room for a man who could negotiate better for lands in Oklahoma Territory. When the Commission met at Guthrie on May 12 to resume their labors, and before any agreements were made, David Howell Jerome, formerly governor of Michigan, succeeded to the chairmanship.186 Subsequent articles of this series will show how he matched wits with the Cherokees and how an agreement was made December 19, 1891 for the cession of the Outlet.







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