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Chronicles of Oklahoma
Volume 16, No. 2
June, 1938
HOW THE CHEROKEES ACQUIRED AND DISPOSED OF THE OUTLET

By Berlin B. Chapman.

PART FIVE:—THE CHEROKEES CONCEDE TO A CONTRACT.


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Previous articles of this series dealt with the acquisition of the Outlet by the Cherokees, the complexity of the Cherokee title, the occupation of the Outlet by the cattlemen, and the failure of the Cherokee Commission under the leadership of Lucius Fairchild to purchase the Outlet from the Cherokees in 1889. Moreover it has been explained that in order to induce the Cherokees to concede to sell the lands to the government, President Harrison issued a proclamation ordering the removal by December 1, 1890 of all live stock herded upon the Outlet. It is the purpose of Part Five of the series to relate how the Cherokees on December 19, 1891 conceded to an agreement with the Cherokee Commission ceding to the United States all title and claim to lands between the ninety-sixth and the one hundredth meridians.

On December 3, 1890, two days after the provision in President Harrison's proclamation for the removal of all live stock herded upon the Outlet, took effect, the Cherokee Commission began negotiations at Tahlequah.237a The Commission consisted of David Howell Jerome, chairman, Alfred M. Wilson, and Warren G. Sayre. The Cherokees were smarting under the "unreasonable hardship"238 imposed upon them by action of the Pres-





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ident. Their case in the negotiations of 1890 was left largely to Senator L. B. Bell and Col. Wm. P. Ross whose knowledge of law and facts relative to the Outlet, and whose command of English and cutting logic enabled them to play their role admirably. They did not intend to be left with a mess of pottage when negotiations with the Commission were over.

It has been noted that there were matters, not relating directly to land, that the Cherokees thought were as important as the money consideration. The committee representing them was authorized to negotiate for the settlement of all claims with the United States. Throughout the negotiations the committee took time for consideration and for council among themselves so that they could make suggestions and answers as a group and not merely as individuals. On the first day of the negotiations the Commission said plainly that they did not want the committee "to start off with long range firing and written propositions," but to say what they thought.239 On the second day they submitted to the committee an offer of $7,528,442.19 for a cession and relinquishment of all the title, claim, right and interest of the Cherokee nation in and to lands in the Indian Territory west of the ninety-sixth meridian.240

It appears that the Cherokees wanted about twice the amount offered, or two dollars and fifty cents an acre, and "pay" for the Public Land Strip. On December 9 Sayre said that no proposition involving the purchase of, or payment for, the Public Land Strip would be entertained by the Commission. The Commission realized that the lands in the Outlet could be secured at a less price than that asked by the Cherokees.241 "We are here







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in the middle of the world," said Bell, "with millions of buyers and compelled to sell to just one." He considered the price offered as ridiculously small. "Give us the same opportunity to sell our lands that the monopolies have theirs," he said, "that are much larger than ours, and we can net twenty or thirty million. These lands are not wild lands in the sense generally used; they are right in the heart, you might say, of the business country and all checkered over with railroads, and a great deal more so than many lands west of the Mississippi. If we were allowed to go out in the world and offer these lands for sale the price you offer us would hardly pay two years interest on them." It was reported in December that John A. Blair, Secretary of the Cherokee Strip Live Stock Association, stated that he would present Chief Mayes an offer of twenty million dollars for the Outlet.242

Among the topics discussed in council were the salines in the Outlet, compensation to the Cherokees for railroad rights of way, tribal reservations established in the Cherokee country west of the ninety-sixth meridian, colonization in the Outlet of two thousand negroes, homeless and not desirable in the Cherokee home reservation, the abrogation of article fifteen of the treaty of 1866, and the removal of intruders from the home reservation. The three principal salines in the Outlet, according to Ross, had been leased in accordance with an act of 1882, except for the approval of the Secretary of the Intetior.243 Bell explained that the Secretary had not approved the leases because of certain er-





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rors in plats,244 but that the errors had been corrected. The Cherokees observed that the salines were not agricultural lands and they proposed to reserve them for the manufacture of salt. Jerome explained how plentiful salt was at Saginaw and elsewhere and remained unconvinced that salt deposits could be of any particular value to the Cherokees.

An act of July 4, 1884 granting to the Southern Kansas Railway Company a right of way through the Indian Territory provided among other things that the company should pay, "so long as said Territory is owned and occupied by the Indians," to the Secretary of the Interior the sum of fifteen dollars per annum for each mile of railway it should construct in the Territory.245 The Secretary of the Interior should apportion the money in accordance with the laws and treaties then in force among the different nations and tribes according to the number of miles of railway that might be constructed by the company through their lands. The right of way extended across the Territory in the general direction from Winfield to the mouth of the Washita; there was also provision for a branch line extending from the northern part of the Territory in the direction of Camp Supply to the western border of the Territory at or near where Wolf Creek crosses the same. The main line in the Outlet was about thirty-five miles long, the branch line about one hundred and twelve miles.246

The Cherokees said that they should not be denied the right to own property west of the ninety-sixth meridian, that they had a valuable money interest in the lands occupied by the railroad, and that they desired to retain the lands and thus continue to collect the fifteen dollars per mile. In their view the owning of the land upon which the railroad was built entitled them to the revenue and they considered that if they owned the land forever they would be paid accordingly. It was observed that if a trade were made the fee simple title of the Cherokee nation would







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pass to the United States; and that if the United States saw fit to guarantee fifteen dollars per mile, the government could pass its title, with the same conditions to the Cherokees. The Cherokee Commission contended that there was no occupation on the part of the Cherokees of the right of way but only a possible reversionary interest to them in case the right of way should be abandoned by the railroad. The Commission interpreted the law to mean that when the Cherokees ceased to own and occupy the territory through which the railroad ran, then it was part of the contract with the company that it should not pay the specified sum per mile.

Discussion regarding the six reservations in the Cherokee country west of the ninety-sixth meridian centered principally around the Osage tract. The Commission called attention to the provision of the treaty of 1866 whereby the jurisdiction of the Cherokee Nation and their right of possession should terminate forever, as to the districts sold and occupied; and to the fact that the sale of lands to the Osages had been made with the consent of the Cherokees who had received payment. Attention was also called to the $300,000 payment provided by an act of March 3, 1883 and accepted by the Cherokees as evidenced by deeds conveying the reservations in trust to the United States. Wilson asked the Cherokee committee to recede from their claim for additional payment for the Osage reservation. "If you can't recede from that," he said, "then in the name of justice and reason tell me how often you want to be paid for those lands." He thought it better for the Cherokees to wait until the United States disturbed the possession of the Osages before additional compensation was asked from the government.

The Cherokees realized that the time was ripe to discuss the matter. They called attention to Jerome's statement that it was the policy of the government "to bunch up the Indians" and to open the surplus lands to white settlement. It was contended that while the opening of the Osage tract to white settlement would increase the value of the lands in the Outlet, the interests and condition of the Cherokees would be endangered. Ross explained that if all the conveyance outlined by the Commission

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were admitted, the claim of the Cherokees for additional compensation for the Osage tract remained unshaken. The committee contended that the lands in the six reservations were conveyed to the United States in trust for the tribes of Indians named in the deeds of 1883; and that if the lands were devoted to other uses, public settlement for instance, an equity arose in favor of the Cherokees. They claimed that they were entitled to such consideration as the Creeks and Seminoles received in 1889 for lands ceded in 1866. With the price of one dollar and a quarter an acre paid the Creeks for lands in Oklahoma district, they contrasted the price of seventy cents an acre paid by the Osages and Pawnees. They claimed that but for the interposition of the United States the Cherokees would have received more money for the Osage lands. They also noted that the Tonkawa, Ponca, and Otoe and Missouria reservations were appraised at 47.49 cents an acre and that the price was not determined as provided in article sixteen of the treaty of 1866; furthermore the appraisal, before being raised a few cents by Secretary Schurz, was made at half the value of the lands because they were intended for Indian settlement. The Cherokees believed that additional compensation to them for the six reservations was taken into consideration by Congress when the Commission was empowered to negotiate for the extinguishment of all the title, claim or interest of Indians in and to lands in Indian Territory west of the ninety-sixth meridian. Other topics discussed were for this study less important, or related less directly to the Cherokee lands west of ninety-six degrees. On December 26 Jerome said that on the part of the Cherokees he was certain that everything had been said that skill and training in debate could bring to their support and that the argument was one of the most elaborate he ever had the fortune to listen to. But the Commission concluded that the Cherokees did not want to sell the lands in the Outlet, did not propose to sell them by negotiation, and their third attempt to make an agreement with the Cherokees came to a close.

On January 10, 1891 the Commission made a report outlining the points of disagreement and stating that the offer of $7,970,-

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777.53 or nearly a half million dollars in advance of their original offer, had been refused by the Cherokees. Three days later Noble transmitted the report to Commissioner Morgan who explained that there were two principal points of disagreement.247 The Indians demanded the right to sue the United States for any balances in land or money they might claim to be due them under all treaties made since 1828. In discussion with the Commission they claimed that they wanted to sue for the Public Land Strip and specified nothing else.248 The Commission were willing to concede the right to sue for claims in money. The second point pertained to the price of the lands. The Cherokees demanded two dollars an acre for all lands ceded while the price offered by the Commission was considered equal to one dollar and a quarter an acre for the Outlet. Morgan suggested a compromise, namely, that the Commission yield the first point, believing that such action might induce the Cherokees to relinquish the lands for the price offered. "The Commission asks that the negotiations be only suspended," his letter reads, "and that they meet in Washington to continue negotiations. The Commission states that this proposition to continue negotiations here was not formally agreed to by them nor by the National Council, but that the principal chief and chairman of the Commission and others said that authority would doubtless be given to a delegation." He said that the Commission also stated that they were informed that a delegation had been appointed to come to Washington, but not clothed with authority to proceed with negotiations. Morgan considered that if negotiations could be resumed either in Washington or at the Cherokee capital, the concession suggested should be made, and that every effort should be made to secure an agreement. "There is evidently a growing disposition in Congress," he said, "to secure these lands either with or without the consent of the Cherokees." Considering this sentiment, of which the





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Cherokees were doubtlessly aware, and the concession indicated, he noted that the Cherokees might possibly be induced to yield their claim to a larger price than a dollar and a quarter an acre.

The House committees were already in action. On January 17, Charles H. Mansur of Missouri introduced a bill249 in the House of Representatives proposing that the government pay the Cherokees $7,489,718.72 for all their title and interest of every character "to any lands lying west of the ninety-sixth degree of longitude in the Indian Territory, known as the Cherokee Outlet." The preamble stated that the government was willing to allow the Cherokees one dollar and a quarter an acre, the price originally offered by the Cherokee Commission for the lands, which were estimated to embrace 6,574,486.75 acres. If the Cherokees should refuse to accept the specified sum the President was authorized within ninety days thereafter by proclamation to declare the lands incorporated into the Territory of Oklahoma and to open the unassigned and unoccupied portion to settlement and entry only under the homestead and townsite laws applicable thereto.

On January 28 the Committee on the Territories referred the bill to the Secretary of the Interior with a request for his views on the desirability of its passage. In the words of Noble the bill was, "inadvertently referred," by Assistant Secretary Chandler to Commissioner Morgan who on February 4 reported that he did not think it should receive favorable consideration.250 Morgan said that neither the action of executive officers of the government nor the provisions of treaties concluded prior to that of May 6, 1828, had any bearing upon the present status of the Outlet, for by that treaty a perpetual outlet west and a free and unmolested use of all the country, under the sovereignty of the United States, lying west of the seven million acre tract was guaranteed to the Cherokee Nation. He said that prior to the treaty of 1866 the Cherokees had a full and complete fee simple title to the lands in the Outlet, and that article sixteen of that treaty "did not





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change or modify" their title to lands west of ninety-six degrees, but only made certain provisions whereby friendly Indians could be settled there. He considered that the unoccupied lands in the Outlet were absolutely private property in which the United States had no more interest than has a State in private lands which are liable to escheat; and that the only right which the United States had in the lands was that of settling friendly Indians there as prescribed in the treaty. He noted that the government had also the right of eminent domain, which right could hardly be stretched to include public settlement of the lands under the homestead laws upon the payment of the cost of the same. "If they should be so opened and the case could come before the courts," said Morgan, "I have no doubt but that it would be decided that such appropriation, without the consent of the Cherokees, is clearly illegal and void and that the purchaser would have no valid title therein. The fact that these lands are not needed by the Cherokees," he said, "their national domain being sufficiently extensive for their reasonable wants and that they can legally enjoy no usu-fruct therefrom, can have no bearing upon the question."

Attention was called to the treaty of 1835 providing that the lands ceded to the Cherokee nation by that treaty, should at no future time, without their consent, be included within the territorial limits or jurisdiction of any State or Territory. Morgan considered that the opening of the Outlet without the consent of the Cherokees, not only would be a violation of the terms of the cession and of the conveyance in the Cherokee patent, but it would be also "a violation of this further solemn stipulation of the treaty." In his opinion the government could not afford to disregard its solemn obligations and violate its faith in order to open the lands to public settlement, even though the opening was desirable. Finally, he noted that the only material points of disagreement were in the price to be paid for the lands, and the right to sue in the courts for the recovery of certain other lands. "I think that these conditions can yet be reconciled," said the Commissioner, "and the United States acquire a clear title to these lands without resorting to the violation of solemn pledges or at-

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tempting to confer upon others a title which it itself does not possess."251

On February 9 Jerome and Sayre who were in Washington addressed a letter252 to Richard M. Wolfe and David Rowe, delegates representing the Cherokee nation, and also in the city, stating that at the time the Cherokee Commission left Tahlequah it made a proposition253 to resume negotiations in Washington for the relinquishment of the Cherokee title to the Outlet, but that the Commission had not been officially notified what the action of the Cherokee National Council was in the premises. The letter stated that "we are informed that you are the only authorized delegates of the Cherokee Nation"; and the resumption of negotiations was proposed. An immediate answer was requested because of the approaching close of Congress. On the same day the delegates replied that they had no authority to enter into the proposed negotiations. In reference to the proposition they said that "there were no further instructions given the Commissioners on the part of the Cherokee Nation. Neither were they formally discontinued by the Legislature, or by its authority."254 On the same day Jerome and Sayre laid the correspondence before Secretary Noble, stating that on December 26, 1890, when the proposition was submitted, "from all the advices we could get, we had abundant reasons for believing that the suggestion for the resuming of negotiations here would be provided for." The report of the Commission on January 10, 1891, as summarized by Commissioner Morgan shows that the resumption of negotiations at Washington was only probable. The Commission could not have been ignorant of the reluctance of the Cherokees to part with their title or rights in and to the lands of the Outlet. And if they journeyed to Washington with a serious intention









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to resume negotiations there, and secured no more "advices" prior to February 9, any surprise they expressed at the reply of Wolfe and Rowe must be attributed to their own stupidity.

Secretary Noble however seems to have seen only more of what he called "impudence" on the part of the Cherokees. On February 13 he transmitted Morgan's letter of February 4 to the House Committee on the Territories together with a letter255 in which he warmly endorsed the measure proposed by Mansur, and urged that Congress pass this or some similar measure. He resorted to various treaties, court decisions and correspondence tending to show that the Cherokee nation had only an easement in the lands of the Outlet. He did not deal gently with the law and facts as set forth by the Commissioner of Indian Affairs. He said recent communications of the Cherokee Commission showed that during the past year their attempts to effect an agreement with the Cherokees had been barren of results, if not entirely futile, that negotiations had come to an end and uncertainty existed as to their renewal.256

Why Noble kept for a week Morgan's report of February 4 is hardly clear. At any rate two days before it was transmitted to the Committee, that body, already advised of Noble's views, made a report in which it urged the passage of a bill similar to that introduced by Mansur.257 The Committee reviewed the history of the Cherokee title or rights in and to the lands in the Outlet, and stated that for over ten years prior to the advent of the cattlemen, the position of the Cherokees had been that the Outlet was absolutely sold to the United States258 for the settle-









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ment of friendly Indians thereon. According to the Committee the legislation authorizing the creation of the Cherokee Commission was the direct result of a desire expressed and statements made by Chief Mayes on February 13, 1889 that such a commission should be sent to the Cherokees. The Committee said: "The question of the opening of the lands of the Cherokee Outlet to civilization and settlement is the burning proposition of the day, in all the great Southwest. It probably is the most important question connected with the Department of the Interior under this administration." This was but an echo of a report made a few weeks before by the House Committee on Indian Affairs259 stating that hundreds of thousands of people were praying Congress to open the lands, that many in wagons and tents were waiting on the Kansas border, that beyond question Congress had the right to terminate the easement and to open the lands to white settlement and that "to longer dally with the cattle companies and the Cherokees" was a criminal waste of time.260 But the Fifty-first Congress had only three weeks to complete its work and the question of the Outlet was left to its successor, not to assemble until December.

Territorial officers had something to say about the Outlet. On July 6, Abraham J. Seay, an associate justice of the Supreme Court of Oklahoma Territory, in an oral opinion261 brushed aside the Cherokee title and in a certain sense the Outlet with it. He made no mention of the fact that the Cherokee nation by treaty







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and by patent had been guaranteed "a free and unmolested use of all the country lying west, of the western boundary" of the seven million acre tract. In his opinion the Cherokee title to the "perpetual outlet, West" was a mere easement, a use subject to forfeiture in case the Cherokee nation became extinct or abandoned the Outlet. He said that the west end of the Outlet, having been closed by the purchase of all lands west thereof from Mexico by the United States, and the east end of the Outlet having been effectually closed by the voluntary sale and conveyance by the Cherokee nation, for cash, of more than two million acres (by permission and with the approval of Congress) to the Osages, Pawnees and other tribes of Indians, it had "ceased to be an outlet to the west, or an outlet in any sense to any place." He said that the character of the Outlet had been changed, and the object for which it had been granted had been defeated and totally destroyed, by the voluntary acts of the Cherokee nation. "This constituted an abandonment of any title therefore vested," he stated, "and there is now no tract or parcel of land that answers to the description of 'outlet to the west' as used in the patent to the Cherokee nation." Thus Seay decided the matter of abandonment.

Edward B. Green, chief justice of the court, believed the matter of abandonment was a political question, refused to decide it, but his implication was clear enough. "If the Cherokee Nation has ceased to use the outlet as an outlet," he said, "the cesser of the use has terminated their estate, and the lands have reverted to the United States. But whether there has been a cesser of the use is rather a political than a judicial question, which should be settled by Congress and the chief executive of the nation. And if the lands have been abandoned as an outlet, and subjected to other uses by the Cherokee Nation, or with their consent and by their authority, their estate has terminated and they have reverted to the United States."262

Green held that the lands, having been ceded and granted as an outlet, could not lawfully be used for any other purpose. He



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considered that if they could be used by the Cherokees for the purposes of a stone quarry,263 farming and other purposes, the distinction between the perpetual outlet west and the permanent home, so scrupulously maintained in the several treaties, and in the Cherokee patent, would be completely nullified. His construction of the language of the Cherokee treaty of 1835 presents an interesting contrast with that made by President Jackson.264 Green considered that in making the treaty the United States and the Cherokees understood that the Outlet was intended as "an outlet only"; he said that if it could have been used for the purpose of a home there would have been no necessity for the purchase of additional lands provided for in the treaty. In his view the provision of the Cherokee treaty of 1866 that the United States might settle friendly tribes of Indians in any part of the Outlet, clearly showed that when the treaty was made the Cherokees did not claim the right under prior treaties and their patent, to settle upon and occupy the Outlet as a home or that they had any other use in it than that of an outlet. Green agreed


263On September 13, 1886 John W. Jordan and Jesse Bushyhead secured from the Cherokee nation a "Mineral License" to prospect for and engage in the quarrying of stone for five years on a certain tract of land five miles wide, and extending from the Arkansas River due west about thirty-three miles. The tract of land was bounded on the north by the south line of Kansas. Jordan and Bushyhead lacked sufficient capital to successfully mine stone on the tract. On March 30, 1888 they entered into a "Stone Mining Contract" with David L. Means, a citizen of the United States, who agreed to furnish all the money required for the working and carrying on of the business. He also secured full control and management of the business. The contract should exist and be in force during the continuance of the said license, and the renewal of the same. By March 1890 a large amount of valuable stone had been and was being taken from the quarry. On January 27, 1891 Assistant Attorney-General Shields advised Noble that no action of the authorities of the Cherokee nation could legalize any license to mine stone for sale in the Outlet. (The documents above referred to are in OIA., Misc. Documents, pp. 21826-29). On February 28 Lieutenant Henry J. Goldman, under orders from the War Department, proceeded to the quarry and there directed Jordan and other persons in and about the quarry to remove from the Outlet, and to cease quarrying stone at the quarry. Jordan and others filed a bill in the Supreme Court of Oklahoma praying for an injunction to restrain Goldman from ejecting them from the Outlet, and from closing up the quarry. The injunction, for reasons given by Judge Green, was denied.



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with Judge Parker that the estate of the Cherokee nation in the Outlet was a base, qualified or determinable fee.265

As might be expected the first Territorial Governor furnished what fuel he could for the flame. He said that he knew of nothing more gratifying to the people of Oklahoma district and the near-by States than the opening of the Outlet and that he knew of no reason why it should not be opened. He recommended that if Congress failed to open the lands that the President should do so by proclamation. "If they may be bought 'for the use of friendly Indians at 47 cents an acre' from the Cherokees," he said, "I see no reason why the Cherokees, 70 miles away, should object to white people settling them at the same price, and if they do object I see no reason why we should not take them anyhow, at not exceeding the above price."266

About November 1 there appeared a red-covered pamphlet of fourteen pages by Robert L. Owen entitled, A Plan for Saving to the Cherokee People Millions of Dollars.267 The keynote was: "Let us allot the Outlet, patent it to our citizens, confirm our right to sell to United States citizens by act of Congress and get every dollar of value that there is in the Outlet for our own people." Owen also said: "We should put a vested right in the hands of the citizens, that will stand against even an act of Congress and we should do this immediately for reasons that are clearly seen. If we can give a FEE SIMPLE to the Pawnee, we can give a FEE SIMPLE TO THE CHEROKEE. We have a FEE SIMPLE TITLE, the grant was by treaty, declared by a patent and repeatedly recognized by every branch of the government.







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We have given a FEE SIMPLE DEED to various parts of this OUTLET by a patent to the Poncas, Pawnees, Nez Perces, Otoes and Missourias and Osages, the United States acting as their trustee—and by our trustee or agent, the Secretary of the Interior, we have issued thousands of patents to portions of the Cherokee Outlet commonly called 'The Strip,' which lies now in Kansas. If we patent it to our own citizens the titles will be good and we can maintain them in court and go to Congress and prevent any legislation to interrupt our individual titles. The Congress would allow our citizens individually to dispose of these titles to United States citizens who desire to buy." It was observed that the lands had been surveyed and a comparative valuation made section by section. A division of lands by evaluation and by lottery was proposed. Owen noted that there was no likelihood of the government settling friendly Indians in the Outlet for "what no man desires, what no man advocates and strives for, can not result in legislation by Congress." The plan was doomed from its birth because the dominant powers of the government did not admit that the Cherokees had a fee simple title to the unassigned lands in the Outlet; nor could it be expected that Congress would grant to the Cherokees as individuals what it denied to them as a nation. The first effective blow to the plan was dealt by certain Cherokee leaders.

There is evidence that Secretary Noble in 1891 adhered to the policy of depriving the Cherokees of a return from the lands of the Outlet. On August 25 General Miles transmitted to the Adjutant General the following telegram,268 received from the Commanding Officer at Fort Reno, Oklahoma: "Instructions of twentieth regard to Cherokees received. Only one man in Strip has claimed to be a Cherokee; he has no farms or crops and most of his cattle have been removed. It is reported Cherokees are arranging to ship cattle to and open farms in Strip. Notice should be given at once that President's order will not protect Indians or cattle not in Strip at its date." On August 29 Noble sent



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President Harrison a copy of the telegram with a letter,269 the following sentence of which was the most important: "I submit, in my opinion, that the Proclamations of the President, February 17 and September 19, 1890, relative to the removal of cattle from the Cherokee Outlet should stand, as the facts as set out in the enclosed telegram show that there are no Cherokees who have made permanent settlement and opened farms which they are improving and cultivating, and whose removal at this time would cause a loss of their crops and great sacrifice."

Commissioner Morgan still believed in the validity of the Cherokee title and a few members of Congress were willing to give it their support. But the Cherokees were aware of volcanic rumblings in Washington, sensitive to the element of popular clamor in the opinions of Judges Seay and Green, and well might they have suspected the ambitions of an Oklahoma governor. In June, September and October the Cherokee Commission concluded agreements with the Wichitas, Kickapoos and Tonkawas respectively and on November 18 final negotiations were opened with the Cherokees at Tahlequah.270 The Cherokees were represented by Elias C. Boudinot, chairman, Joseph A. Scales, George Downing, William Triplett, Joseph Smallwood, Thomas Smith and Roach Young, appointed by virtue of the authority of an act of the Cherokee National Council, approved November 16. Boudinot took the role played the previous year by Ross and Bell and he was also presiding officer at the meetings.

The Commission proposed to purchase the Cherokee claim to the Outlet whether it was good or bad. At their request the Cherokee committee on November 27 set forth the terms on which the Cherokees were willing to sell their unceded lands between the Arkansas River and the one hundredth meridian.271







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Provision was made for the removal of intruders, the abrogation of article fifteen of the treaty of 1866, adjustment of certain judicial matters including the right of the Cherokees to enter suit against the United States for any alleged or declared amounts of money or land withheld or promised by the United States to the Cherokee nation by former treaties or laws, adequate compensation for rights of way held by railroads in lands to be ceded, payment of $400,000 not paid to the Cherokees by the Cherokee Strip Live Stock Association because of the removal of cattle from the Outlet, compensation to Cherokee citizens for improvements on lands to be ceded, and three dollars an acre for all lands to be ceded. The committee claimed that three dollars an acre was not an excessive price considering that lands in the Public Land Strip were Selling at that rate while lands farther east and in southern Kansas were selling from ten to twenty dollars per acre, and that certain lands in the Cherokee Strip in Kansas when privately sold in a large tract had brought seven dollars an acre. They noted that the innumerable boomers who rushed into the Outlet every year was evidence that a large portion of the country was adapted for homesteads. On December 1 Sayre said that stripped of every condition the Commission would not pay two dollars per acre for the Outlet, and the committee stepped down to that price.272

The claim of the Cherokees that they had a contingent interest in the reservations in the Cherokee lands west of ninety-six degrees remained alive and active. Boudinot was aware of



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"the inevitable"—the Outlet would be opened to white settlement. It was largely a matter of whether the Cherokees should make an agreement with the Commission or leave the matter to Congress. A portion of President Harrison's annual message of December 9 was read with interest at Tahlequah. The President said that while the Department of the Interior had not been officially advised of any substantial progress in the negotiations, the price of one dollar and a quarter an acre was in his judgment, when all the circumstances as to the title and the character of the lands were considered, a fair and adequate one and should have been accepted by the Cherokees.273 On December 14 Chief Mayes died and negotiations were temporarily suspended.274 By December 16 all questions precedent to that of price had been determined. The Commission offered $8,353,326.32 for the lands and the Cherokees asked $9,788,136.34. As Boudinot said, further negotiations looked like "haggling over six bits in a ten dollar trade."

Matters rose gradually to a climax at the councils of December 17 and 19. On the former day Boudinot explained that in negotiating the Cherokees were willing to sacrifice millions of dollars they believed rightfully theirs in order to get the United States to carry out unfilled promises. He said that if the Cherokees were permitted to sell the lands as contemplated when patented that they could get three dollars per acre and not three hundred voices in the Cherokee nation would be heard to sell them for that price. "We are a people growing in population," he said, "and it requires no stretch of imagination to think of some near day when the land in the Cherokee home tract will not be sufficient to sustain the Cherokee people. If we sell you this land today west of ninety-six degrees we will have enough for the present wants by getting the intruder out of here as you prom-





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ise, but, sirs, our next generation will go out on the broad continent of America to find homes. We would not have it so if we could help it. There are not fifty acres I can guarantee you, gentlemen, in the home tract to the head of good tillable land; there is less than 166 2/3 acres to the head of good, bad and in different. . . . And if we had our way about it and were protected as the government should protect her title that she guarantees, we would not sell an acre of this land west of ninety-six degrees for ten or fifteen—no, nor twenty dollars, but circumstances are not such as we would have them; we have concluded that we would sell this land and when we set out to sell that land we found out what similar land was worth and even then set the price a dollar lower. The love of money is not so great among this people that it would part with this land but for the circumstances that surround it. These promises of the government to protect us in our home interests have induced us to leave the price and come down to two dollars per acre and yet the same reasons induced us to make still another step down. We are now at the point, gentlemen, where we must hear from you; we have done the acting so far; we think it is fairly your turn now." The Commission implied that Boudinot had underestimated the quality of land in the Cherokee home tract and explained that the road to highest prosperity was probably that of diversified occupations and industrialization.

When the next council convened on the morning of December 19, Jerome stated that if the Commission said nothing more the one thing left was for them to bundle up their baggage and leave Tahlequah. He said that he was willing to give his judgment and conscience another twist in an effort to break the deadlock, and was willing to make the effort only "for the purpose of getting out of this dilemma and showing you that we are generous in trying to get out of this fix." He agreed to add to the price offered the sum of $80,000, or the amount appropriated by Congress in 1888-89 for the benefit of the freedmen, Delawares and Shawnees and charged to the Cherokee nation. "This is the extreme limit," he said, "to which we can go and have the ap-

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proval of our conscience; this is the extreme limit of our judgment and ends all matters of appraisement and judgment on behalf of the Commission." He expressed grave doubts whether an agreement providing such a sum would meet with the approval of the President and Congress.

Boudinot suggested that the Cherokee Committee have a meeting to consider the additional sum offered, and a short recess was taken. The Cherokees multiplied the additional sum by three and added on a little more. After the recess Boudinot said that they had long since got to the point where they were getting less than the value of their lands. "We have unanimously agreed to decline your proposition of this morning," he said, "and make one in turn that is the last one we shall make you and that is not because we do not think our land is worth more but in order that at the very extreme edge of possibility we may be able to agree. We now offer you on the part of the Cherokee nation to insert in the proposition where the number of dollars for the cession and relinquishment is named, this sum: $8,595,736.12." He suggested that the council adjourn until half past one o'clock. In the afternoon session Jerome, after insisting that his views presented during the morning were sound and sure to meet the approbation of Congress, said: "I think we have staid here long enough and placing the additional responsibility on you, we have decided to accept your proposition."

Thus after spending fully twenty-three weeks in Tahlequah and many more in Washington, en route and in preparation, the Cherokee Commission concluded their most important agreement.275 Articles fifteen and sixteen of the treaty of 1866 were abrogated. The Cherokees ceded all title and claim to lands between the ninety-sixth and the one hundredth meridians. The amount the Commission agreed to pay for the lands was in excess of $728,389.46, the aggregate previously appropriated by Congress and charged against the lands of the Outlet west of the Arkansas, and also in excess of $1,099,137.41 paid by the Osages for the lands occupied by them and the Kaws. Thus the total



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consideration received by the Cherokees for the relinquishment of claims to lands between ninety-six and one hundred degrees was $10,423,262.99.276 The sum named in the agreement was $1,106,017.39 more than that provided for in the original letter of instructions to the Commission, and $624,958.59 more than that offered by them in 1890. But the Commission said plainly that they "could do no better" while the Cherokees considered the price a minor matter.277

The Commission explained that if the Cherokees had accepted the offer promptly in 1889 the interest on the money at five per cent would have almost equaled the difference in price.278 They applied the price in three ways. (1) If it pertained only to the 6,022,745.11 acres being the quantity of the unoccupied lands west of the Arkansas, the rate was $1.427 an acre. (2) If it included the four reservations west of the river, or an additional area of 551,732.44 acres the rate was $1.31 an acre. (3) If the price included the Osage and Kaw reservations the rate was $1.05 an acre. The agreement provided that not to exceed seventy allotments in the Outlet might be taken by citizens of the Cherokee nation. The right of selection was made to depend upon permanent and valuable improvements made prior to November 1, 1891. Allotments were limited to eighty acres and the price of $1.40 for each acre taken in allotment should be deducted from the sum due the Cherokees for the Outlet. It was provided that unless the agreement should be ratified by Congress and the appropriation







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of money made on or before March 4, 1893 the agreement should be void. The Commission felt sure that the National Council would act favorably upon the agreement,279 and it was ratified by that body January 4, 1892.280

Just before the agreement was concluded Jerome said that in all the transactions of his long life there were none in which he took more pride than in it.281 Later the Commission said that in their belief "after it is all done, that the agreement is a proper one, and we are content with it."282 President Harrison considered that the agreement was perhaps the most satisfactory that could have been reached283 and he was inclined to follow Noble's recommendation that it should be ratified by Congress.

The Cherokees did not wish to give up the inheritance of their fathers; like Naboth they had a vineyard but did not govern the kingdom. And the forcing of them to sell their lands may well be classed among the most glaring examples of injustice done to Indians by the government.284 By the appraisement following the treaty of 1866 the government proposed to pay the Cherokees less than fifty cents an acre for the lands if friendly Indians were settled thereon. When it proposed to open the lands to white settlement the Cherokees held out as long as discretion permitted and in selling them charged what the traffic would











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bear. Secretary Noble thought that the Cherokees received a very large consideration. In the early part of the nineteenth century when lands were cheap and the supply easily met the demand, they secured from the government a vast area that became of great value toward the close of the century. A laissez faire policy might have left them powerful landlords or wealthy speculators to the detriment and jealousy of thousands of whites. It is easy to agree with Secretary Teller and Secretary Noble that such a policy would have been unwise. The government gave and the government took away. This was a better policy than to have confined the Cherokees in the beginning to a home reservation large enough only for allotments of average size, with a title undisturbed by sovereign power.

In the appendix of his annual report, under date of November 1, 1891, Noble incorporated his letter to Struble of February 13. This action by Noble was hardly fair play considering that he had told Commissioner Morgan to drop the question of the Cherokee title to the Outlet and also omitted to publish Morgan's letter of February 4. It was certainly poor departmental cooperation and could not be justified whether Noble believed that he had written a brilliant letter to Struble, or whether he believed that the Commissioner of Indian Affairs had exhibited asinine traits in an unusual degree. In a letter of January 26, 1892 Morgan rightly said that as the matter involved was one of the very highest moment, and as the statement was made that he had fallen into "many errors of law and fact," it seemed obligatory for him to lay before Noble a further discussion of the subject.285

Morgan, like his chief, marshalled the evidence for his side and his letter had both force and length.286 He delved into let-







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ters of the Department of the Interior, gleaned sentences from court decisions and sought out clauses in the Statutes at Large in an effort to show that his letter of February 4, 1891 dial not contain "many errors of law and fact." He noted that a patent is the highest evidence of title. It appeared to him that the distinction between the Cherokee home reservation and the Outlet was wholly obliterated by the Cherokee treaty of 1835. He expressed his belief that whatever might be the title of the Cherokees to lands in the Outlet, the lands could not be opened to public settlement without their consent. Perhaps the sanest view, and yet one somewhat vague, was that expressed by Shields, who, after reading Noble's letter of February 13 and Morgan's reply thereto, concluded that it was of little moment whether the title or rights of the Cherokees in and to lands of the Outlet was a mere easement as Noble held or one of property and perpetuity as Morgan maintained, but that the Indian title, whatever its character, was exclusive as to possession and indefinite as to time, subject to the provisions of the treaty of 1866, and would continue until lawfully extinguished.287 The title of the Cherokees was not good enough for them to settle on the Outlet, and yet good enough to keep citizens of the United States from settling there.

Since Noble in his report of 1891 had publicly given Morgan a slap in the face, it would seem right that he should have suffered, him in his fourth and final annual report to use a paragraph in which to extol his own achievement in regard to concluding the Cherokee agreement. Morgan wrote: "After weeks of tiresome and fruitless efforts on the part of the Commission to reach a conclusion with the Cherokees, Judge Warren G. Sayre, a member of the Commission, called on me in this city and informally reported the failure of the Commission to make any terms in re-



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gard to the outlet. In that conference I made some suggestions as to how an agreement could perhaps be effected. Upon Judge Sayre's return the Commission acted on those suggestions and succeeded in effecting the agreement which is now under consideration by Congress.288 Noble said he was satisfied that Morgan was laboring under serious misapprehensions and that his claims were a novel pretension. He referred the matter to the Commission who said that the agreement in their opinion was a good one, that the credit belonged to them, that they never had any official communication289 with the Commissioner of Indian Affairs and that they not only resented but protested against any credit being given him for suggestions.290

Morgan promptly replied that he cheerfully consented to the omission of the paragraph because Noble requested it, but that he did not recognize the justice of the criticisms made upon it for the statements were, from his point of view, entirely justified.291 A week later he addressed a letter to Noble giving for his information certain "facts" which he said were unknown to some if not all of the Commission and which had furnished the basis of his inference.292 This letter shows Morgan at his worst; indeed he so badly confused article four of the proposition made by the Cherokees on November 27, 1891 with article four of the agreement that his letter would make the close of a worthy achievement seem ridiculous. He pointed out the compromise suggested by himself in the letters of January 30 and February 4, 1891 and noted how darkly Noble had written of prospects of success on February 13 following. He referred to a conversation with Sayre











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prior to the agreement and to one after the agreement in which Sayre said "frankly and with great good nature" that he had been encouraged to resume negotiations because of the former conversation and that success was due largely to suggestions he had there received. Finally Morgan said that the thing he had advised was done and that his compromise was in the main carried out, namely, that the Cherokees were granted the right to enter suit for land as well as money and that they had made concessions on the price. Noble explained that the desired right to sue for land was resisted by the Commission and was not contained in the agreement. "Your support of this proposition was not successful," said Noble, "and the basis of your claim resting upon it is certainly not sustained.293 In his annual report he said that the Commission were entitled to the highest commendation for their untiring efforts in effecting the agreement against most discouraging obstacles, but he made no mention of Commissioner Morgan in relation thereto.294

On January 18, 1893 a convention was held at Guthrie purporting to be attended by more than seven hundred delegates from Kansas, Missouri, Arkansas, Texas, Oklahoma Territory and the Five Civilized Tribes, representing commercial organizations and the leading professions. A number of resolutions were drawn up requesting among other things that Congress ratify the Cherokee agreement and open the Outlet to settlement as early as possible.295 It was stated that nearly twenty thousand homeseekers were temporarily living on its border. The agreement with certain amendments was ratified by Congress296 on March 3. The amendments









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were accepted by the Cherokees297 on April 3 and a deed of relinquishment to the United States was executed May 17.298 Sixty-two citizens of the Cherokee nation received allotments under the provisions of the agreement; the surplus lands were opened to white settlers on September 16; the Cherokee Commission was dissolved on November 7; and the Cherokees had disposed of the Outlet.

THE END299







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