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Page 244

Thirteen Indian reservations were in Oklahoma Territory as established by an act of Congress on May 2, 1890. The last of these reservations to be dissolved by allotments was that owned and occupied by the Osages, embracing about 1,470,059 acres, now comprising Osage county.

In 1890 the Osages, like the Kaws, Poncas and Otoes, were not disposed to take allotments or to sell any of their lands. They claimed that there was only enough good land to meet the needs of the tribe. They were also influenced by a number of "citizen" Pottawatomies, living among them, who had taken allotments, squandered their substance and were "roaming about, the poorest of the poor."² The Osages were exempt from the provisions of the General Allotment Act; but by 1892 most of them had been induced to locate "claims." Thus the idea of personal ownership of land was growing among them.

On June 22, 1893 the Cherokee Commission went to Pawhuska, the capital of the Osage nation, and entered into negotiations with the Osages in an effort to persuade them to take allotments and to sell their surplus lands. Regardless of their "crude form of government with a written constitution³ and laws," they agreed that the power to enter into negotiations with the Commission resided in the people. The Commission remained until the first week of August, and although general councils were held from day to day, yet no agreement was made. "In the beginning all seemed opposed to entering upon the business for which we visited them," the Commission said in their final report, "but as the desires of

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the Government were developed by discussion a considerable number, including quite all of the half or mixed bloods, expressed themselves as willing to adopt the new relation sought by the Government if the details of an agreement could be made acceptable to them; but the majority of the tribe, composed almost entirely of the full blood element, refused even to discuss the propositions submitted to them . . . . An ill feeling had developed between the contending factions, and there was not even a hope of reaching an agreement at this time."⁴

Preliminary to entering into an agreement the Osages proposed to secure a settlement of "unsettled differences" with the government. The differences included payment of certain interest accruing upon their invested funds, adjustment of the provision in their treaty of 1865 providing for the use of certain funds from the sale of Osage lands in Kansas for the education and civilization of Indians in the United States,⁵ and payment for certain lands in western Kansas. The full bloods said that the purging of the annuity roll of the names of persons illegally placed thereon was a necessary preliminary step to any agreement. The Osages also had been invited by the Cherokees to hold out with them in the matter of their present relations with the government and to yield only when they yielded; and the Osages wished to become the "Sixth Civilized Tribe" and finally a part of the "Indian State" which they fondly hoped would be in the near future organized and recognized. A paper was presented to the Commission signed by 279 members of the tribe declining to cede lands on any terms. A proposition, signed by 161 members, was also submitted to the Commission providing for the cession of the surplus lands, each member of the tribe to take an allotment of 320 acres, one-half of which should be held in trust for five years and the other half for twenty-five years, the surplus lands to be paid for at one dollar and a quarter an acre.⁶ The Commission believed that their visit had paved the way to a later agreement which could be made in a few months. Agent

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C. A. Dempsey believed that within a year satisfactory terms could be made.⁷

The annuity roll was a factor of continuous importance in the history of the Osage allotment. It appears that during the decade following the establishment of the National Council in 1881 the increasing wealth of the Osages made citizenship of great value, and led to a scramble by certain persons for places on the roll;⁸ and that sums of money were not infrequently paid to members of the Council or influential individuals for the purpose of enrolling persons of questionable right to enrollment. In conformity with a resolution passed by the Council, January 25, 1894, a report was sent by the local agent to the Commissioner of Indian Affairs stating that the purging of the roll was a matter of great importance to the Osages.⁹ It was stated that during the past four years a number of names had been added, it was thought, illegally. "Every name added illegally," they said, "deprives us of our just dues."

If the Osages were jealous in regard to their money, it would seem reasonable that they would be reluctant to allow intruders to share in the division of their lands. The Department of the Interior, content to request a list of the names of those charged with fraudulent enrollment and the evidence,¹⁰ proceeded to send a commission to the reservation in 1894 to negotiate with the Osages for the surrender to the United States of such portion of their reservation as they might be willing to cede.¹¹ On May 18 the Osage Commission consisting of James S. Hook, chairman, John A. Gorman and John L. Tullis were appointed for the purpose. Under

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Instructions¹² approved by the Department of the Interior on May 25, negotiations were to be had with a full council of Indians, and any agreement concluded should be assented to by a majority of male adults in order to be valid. The Commission was advised not to use "undue pressure," but to present the matter plainly and carefully for the consideration of the Osages. The question of allotment was bound up with that of the cession of surplus lands.

The Commission met with the Osages frequently at the Round House, about a mile from Pawhuska, and attempted to show them the importance and value of allotment and cession of the surplus lands. Toward the close of June prospects of success appeared bright enough to the Commission. They felt "quite sanguine" that if the meeting to be held June 29 did not result in an immediate agreement, it would lead to another ere long that would result in an agreement.¹³ The Commission realized, however, that the Osages felt that they held a pretty independent position, and that hard, patient and persistent work would be necessary, not only at the councils but on the individual Indians as well. Their realization soon became an established fact.

On July 13 a committee of nine members, headed by Black Dog and James Bigheart, and claiming to represent almost the entire full blood population, submitted to the Commission an "ultimatum"¹⁴ of six articles explaining why the Osages were not prepared to take allotments at that time. They submitted that they had not yet made sufficient progress in civilization to take lands in severalty and that if any representations had been made to the Office of Indian Affairs that they were prepared to take allotments or desired them, such representations had been made by unauthorized parties. They stated that they were satisfied with their present form of government; that their condition was improving as evidenced by schools, agricultural implements, bridges, etc.; that funds from the sale of the Osage trust lands in Kansas had been misapplied and other wrongs inflicted upon the tribe so that "we could not agree to the sale or division of our present possessions while we have such large balances unsettled from the sale of the lands formerly owned by us." They submitted that there was likelihood of their being transferred to the Five Civilized Tribes, that a Committee of Congress had given a delegation encouragement in that respect and that consequently the tribe did not wish to take action as a nation, singly or alone. They observed that allotment under the present state of affairs would result in their becoming a

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part of Oklahoma Territory, to which they seriously objected, owing to the fact that the Arkansas river "at times dangerous to cross" separated them from the Territory.

If the "ultimatum" may be likened to a boil, Article Three was the core. It reads: "We claim that we have quite a number of people here, placed on the Roll as Osages, that are not entitled to be there. They are drawing the same annuity that is being drawn by the Osages by blood, and have drawn a large amount of back money, and in case of allotment would get the same amount of land as the Osages. This we cannot consent to. A delegation of our people recently visited Washington and laid the question before the department, and the Indian Office promised that where the Council investigated the matter and found that any parties were not entitled to Citizenship as Osages that they should be stricken from the Rolls. We have not had time to investigate this subject, as we have to examine witnesses and take testimony that will satisfy the Department in acting upon their cases. We would respectfully represent that we cannot take any action looking to allotment until these cases are settled. These people are participating in our Councils, and voting to allot our lands, when we claim they have no right to do so. And of course they will vote themselves land if they are allowed to participate in our proceedings. We cannot consent to any other arrangement until this question is settled."

On the following day Hook informed the Office of Indian Affairs that from the beginning more feeling had been manifested in the question of the annuity roll than in any other feature of the negotiations; and that the Commission had fully, and they hoped satisfactorily, met the other articles of the "ultimatum." He said that it was the opinion of Acting Agent Freeman that the Indians would never make an agreement until the roll was thoroughly investigated and the matter set at rest one way or the other; and that the time was opportune to make the investigation. Hook stated that it was the belief of the Commission that if the Indians were directed to prepare and present properly a list of the names of the persons in question, and the Commission or the local agent be directed to conduct the investigation, the important and perplexing question might be settled. While the Commission believed that an agreement could be effected under existing conditions, it was observed that the signers would largely be composed of those persons whose rights were questioned. It was also observed that there were many Indian widows, heads of families (and also Indian women married to white men) who were directing the cultivation of large farms, were interested in annuities, and yet who were excluded from any agreement that the Commission might make with the tribe. And Hook asked if instructions could be modified so as to give such women a voice in business so important to them.

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But Secretary Smith and Commissioner Browning considered that the investigation would occupy a long time and could not be conducted by the Commission;¹⁵ and they could not agree that an unbroken precedent conferring on male adults a distinctive privilege should be changed. Repair was considered a difficult task and the Commission was advised, in the modern phrase, to rumble on with a flat tire. It was suggested that the objections of the full bloods might be overcome by the insertion of a provision in the proposed agreement stipulating that the rights of all mixed bloods to whom they might object should be fully investigated either by the Department of the Interior or by the Osage Council, subject to the approval of the Department of the Interior.¹⁶ The same provision should also extend to those claiming citizenship in the nation by adoption. Browning realized, however, that there was no prospect of the surplus lands of the reservation being opened to settlement in the near future.¹⁷

Because the weather was "extremely hot, water very poor, no ice," and since no general council would be called for some time, Hook and Tullis seemed to have desired a leave of absence.¹⁸ A leave without pay and without traveling expenses, for not exceeding forty days, was granted the Commission on August 2.¹⁹ Gorman spent the last half of August in Washington and on September 1 he was directed to proceed to the reservation to pave the way for a speedy termination of the labors of the Commission by personally talking over and explaining some of the matters brought up in the councils before the work was suspended.²⁰ It appears that Hook and Tullis returned to the reservation late in September and that little was done by the Commission in October further than having talks and consultations with the Indians looking toward a meeting with the tribe. On November 1 Secretary Smith addressed the following communication to the Commission through the Office of

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Indian Affairs: "The reports I have, satisfy me that no agreement with the Osage Indians is probable, and that it is a useless waste of time and money to continue the negotiations with them. You will therefore close up the work of your commission at once and return to your homes, unless you are prepared to show the information to be incorrect."²¹ The Commission were able to convince him that the work should be continued for the present.²²

If the commissioners suppressed personal feeling and were not a house divided against itself, there was at least among them a lack of desirable cooperation. Hook prepared an offer embodying the proposition made by certain Osages to the Cherokee Commission, namely that the Indians take three hundred and twenty acres each and sell the balance of their lands to the United States at one dollar and a quarter an acre.²³ Gorman and Tullis, being the majority of the Commission, voted down the offer suggested by the chairman and it was not submitted to the Indians. The two dissenters prepared an offer and at least one of Hook's objections to its features was not well taken. The signing that occurred seems to have been limited to sustaining objections to a proposed, incomplete agreement presented by the Commission through its majority vote. On the afternoon of December 18, after the last meeting held by the Commission was dissolved, a paper was presented to Hook containing "about 15 or 16 pages of foolscap, or type-written articles, and propositions indicating the settlement that would suit the halfbreeds." But Hook's sympathy lay with the full bloods.

On the morning of December 21 Hook and Tullis started for their homes and Gorman reported that he would close out matters and start for Washington as soon as possible.²⁴ Hook said that the Commission had closed its work finally, while Gorman said that it had suspended work for the present.²⁵ On January 21, 1895, Gorman transmitted to the Commissioner of Indian Affairs the proceedings of the councils held with the Indians, and other papers.²⁶ He made a report in which he simply stated that the Commission was unsuccessful in its efforts to obtain an agreement. This "half page" statement was very unsatisfactory to Hook who said that when the Commission parted at Pawhuska it was understood that Gorman should take the records of the meetings to Washington and there prepare a report. On February 1 Hook, without the records kept by the clerk or stenographer, made a twenty-three page report as a

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substitute for the report he had expected Gorman to make.²⁷ Hook did not find the half-breeds enthusiastic for a division of lands. He observed that as long as they could get considerable quarterly interest and hold three-fourths of the land, they would "not shed tears or lose any sleep, because allotment is postponed."²⁸ The Commission was discontinued February 12 by order of the Secretary of the Interior. When we consider that the question of the tribal roll was a source of bitter contention on the reservation, that the Osage Commission was successor to the "Jerome Commission" which was of bad repute among many Indians in Oklahoma Territory, and that the Osages had a good Indian title, it is not singular that Hook, Gorman and Tullis, unable to cooperate well in drawing up and presenting an offer, met outright failure.

A few weeks after the Commission left the reservation a movement among the full bloods was on foot to send a delegation to Washington to take up principally the matters contained in the "ultimatum." But Commissioner Browning said that it would be a needless expense for the tribe, that nothing of importance could be accomplished by a visit and that Congress and the executive departments were busy.²⁹ On January 15 or 18, 1895, and on February 5 the National Council passed resolutions requesting that the matters in question be given consideration.³⁰ On February 6 Acting Agent Freeman reported that the relations existing between the full bloods and half-breeds were of such a nature as to require a full and authorative settlement of the rights of the latter. "In my opinion," he said, "the full bloods will not listen to any proposition of allotment until this is done."³¹

After the failure of two commissions, authorities at Washington were ready in 1895 to begin where they should have begun two years earlier, that is, to take up the question of determining the rightful persons among whom the lands should be divided, which question rested on the annuity roll. On February 14 Freeman was

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instructed to have a delegation come to Washington³² and on April 12 the Secretary of the Interior directed that the National Council furnish the Office of Indian Affairs the names of the persons alleged to have been unlawfully enrolled, to the end that definite action might be had. The list, containing 446 names, was accordingly furnished and on February 21, 1896 instructions were approved directing Commissioners Washington J. Houston and Clarence E. Bloodgood to conduct the investigation.³³ In 1897 Freeman reported that "the real interests of the tribe the past year has been one of unusual political excitement, and nearly everything else has been at a standstill."³⁴ A very thorough and painstaking investigation was had "and all persons in interest were given every opportunity to furnish all the facts and evidence possible."³⁵ Attorneys for both the tribe and defendants applied their wits, and the cases, with voluminous evidence and testimony, were submitted to the Department of the Interior where by the close of 1898 the matter had been given careful consideration.³⁶

In 1897 Freeman observed an increasing desire of the full bloods "to take up claims" and to use care and intelligence in selecting lands. However, local agents considered allotment a subject of little importance during the closing years of the century. In 1901 Governor Jenkins reported that it was generally believed that the Osages would not be adverse to taking lands in severalty if proper efforts were made in that direction; but that it seemed likely that when they took allotments they would sell the balance of the lands themselves.³⁷

The same year Special Agent Frank C. Armstrong investigated conditions on some seventeen reservations and concluded that "all reservations should be surveyed and allotted as soon as possible." He found that one-half of the Osages were capable of managing their own affairs. It was his belief that if the matter were presented clearly and frankly to the tribe an agreement could be made which would improve their condition, break up completely their tribal dealings and organizations, stop friction between the full, bloods and mixed bloods, and place the members of the tribe upon

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their individual resources. He briefly outlined a plan³⁸ for the division of funds and lands. In regard to the latter he said: "I suggest that the land be divided per capita after each one has a farm of 160 acres of good agricultural land. This 160 acres should be held for twenty-five years, under the usual restrictions of the allotment act. All over 160 acres they should be allowed to dispose of under a proper supervision, in lots of 160 acres or less, but not more than 220 acres³⁹ in any one year. They would receive in a division of land now about 805 acres. Many of them would not sell at all, but would lease. Whilst if they did sell all their surplus, they would still have 160 acres reserved for a home and farm."

The first step, that regarding the selection of one hundred and sixty acres, was taken forthwith. A few whites and mixed-blood were attempting to hold a considerable portion of the common land for their own private use and gain and at the same time participate in the distribution of the proceeds arising from the leasing of other common lands. On September 4 Acting Commissioner Tonner directed that each head of a family and each single person holding more than six hundred and forty acres should have his holding reduced to that amount.⁴⁰

Assistant Chief James Bigheart, spokesman of the full bloods; suggested what he considered a better plan⁴¹ and one agreeable to Agent Oscar A. Mitscher and the Office of Indian Affairs. As incorporated in instructions⁴² to Mitscher on January 16, 1902 it provided that each member of the tribe might select not to exceed one hundred and sixty acres as a homestead, within or without the leased pastures, such selections to conform to the public surveys, The lands should be surveyed at the expense of the individual⁴³ and should be nontransferable. In addition to homestead selections the local agent was authorized to assign each family or each single person⁴⁴ who actually owned his own cattle or other domestic stock, not to exceed six hundred and forty acres, such land to conform to the public surveys and, with minor exceptions, to be made on the Osage public domain outside the pastures as then constituted. Schedules of homesteads and grazing lands were to be made. On receipt of instructions Mitscher immediately sent out a

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circular letter to parties whom he thought were holding more agricultural land than one hundred and sixty acres for each member of the family.⁴⁵ He encouraged the selection of homesteads and before the close of the summer some four hundred persons had made selections.⁴⁶ The provision regarding surveys proved to be a vexing one for farms had been laid out to conform to available farming lands, usually along creek bottoms. In some instances a farm extended within the limits of four or five quarter sections.

It should be remembered that these homestead selections, while respected by the Office of Indian Affairs and the Indians, were tentative, and that the chooser did not have separate title to his selection.⁴⁷ The title to selections was vested in the tribe and the individual selector could not secure title without authority of Congress. "No allotments in severalty have been made to the Osage Indians nor are any at present contemplated," said Acting Commissioner Tonner in 1903⁴⁸ It was contemplated on the part of the government, however, that a tract selected should constitute the allotment of the individual whenever the lands should be allotted under act of Congress. Until after statehood⁴⁹ a very great majority of the tentative homesteads were leased and occupied by white farmers under "informal leases" which were of no legal status since the Indians could not make legal leases. There was an extensive illegal occupancy of lands. In lieu of courts the local agent settled difficulties between lessor and lessee and required each party to live up to his contract.⁵⁰

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