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Chronicles of Oklahoma
Volume 16, No. 1
March, 1938

By Berlin B. Chapman


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Previous articles of this series dealt with the acquisition of the Outlet by the Cherokees, the settlement of Indian tribes on the eastern end of the Outlet, the revenues the Cherokees received from the remaining lands by leasing them to cattlemen, and the failure of the Cherokee Commission under the leadership of Lucius Fairchild to purchase the lands in 1889. Part Four presents various views of judicial and executive officers as to the nature of the Cherokee title. It also relates how the government deprived the Cherokees of the benefit of the lands of the Outlet as an inducement for them to sell the lands.

The cattlemen were recognized as the chief competitors of the government in its effort to purchase the lands of the Outlet from the Cherokees. Horace Speed, Secretary to the Cherokee Commission, wrote from Washington: "Harrison wants to order the cattle out by proclamation but don't want to break them [the cattlemen] up and is considering June 1 as the limit of their stay."187 On January 20, 1890, he wrote: "Today I went with Noble to see the President with two telegrams and a letter that the cattle on the Outlet are not more than 90 or 100,000 and growing less fast. It is probable that the order will issue in a few days. Noble is repressing his impatience at the delay. The President will not act until he feels mentally clear and certain that he is right and will not affect the general market by putting these cattle out of the Outlet."188

A week later Sayre wrote from Washington: "The Secy. is more aggressive than the President,189 but the President has said

Gen. L. Fairchild

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to me, that an order removing the cattle is finally and fully settled and determined upon, that no new hoof shall go there, and that 500,000 Cattle shall not stand a minute in the way of any settler that is ready or can get ready to turn a furrow in the Outlet. That he is yet considering on what date the order shall finally operate, but no matter when that shall be, if we or Congress can arrange before that time for settlement, the order shall operate then. I think both are unwilling to take the Atty. Genl's opinion as to title.190 They say there is some title, and that is enough for any to know."191

The cause of the Cherokees was not utterly confounded. At the National Capitol voices were raised in their behalf. On February 11 Senator Dawes said: "They were told last summer that they should take the one proposition of $1.25 per acre, and, if not, 'we will do nothing with you, but we will go home and tell the home Government that you have no title whatever.' There was no occasion to express surprise that they would not negotiate after that."192 Dawes agreed with Senator Teller, formerly Secretary of the Interior, that the title of the Cherokees to the Outlet was a fee simple substantially, and that they could not be divested of it in any other way than by their own consent. Senator John J. Ingalls of Kansas said that the Cherokees should have the full value of their lands and not be "compelled to sell them for a dollar and a quarter an acre when they are worth $10." Senator

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Teller believed that if they were approached in a proper manner a trade could be made.193 On February 13 Senator George G. Vest of Missouri urged the appointment of a new commission to negotiate with the Cherokees for the purchase of the lands, a commission whose offer should not be limited in advance of negotiations.194

On the same day President Harrison asked Attorney-General W. H. H. Miller merely to state his conclusions upon the question whether the leases on the lands in the Outlet made by the Cherokee Strip Live Stock Association had any legal force or validity. On February 14 Miller, regardless of the treaty of 1866 which provided that the Cherokees should retain right of possession and jurisdiction over all the Cherokee country west of the ninety-sixth meridian until districts should be sold and occupied, replied that the validity of the leases depended upon the consent of the government.l95 On February 17 the President issued a proclamation196 ordering that no cattle or live stock should thereafter be brought upon the lands of the Outlet197 for herding or grazing thereon, and

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ordering that all cattle and other live stock then on the Outlet be removed therefrom not later than October 1. Secretary Noble on March 29 approved an order providing that all cattle and other live stock held on any Indian lands in the Indian Territory under any pretended lease, contract or other arrangement with Indians, for the use or occupation of any part or portion of any Indian lands for grazing purposes, should be removed therefrom not later than October 1, and so much sooner as any special circumstances affecting said lands, or concerning any of said cattle, might make such removal necessary.198

Thus the government, in order to extinguish the title or rights of the Cherokees in and to the lands of the Outlet, changed the method of procedure as it had threatened to do. "When we consider," says Professor Dale, "that these lands were not opened to settlement until September, 1893, or almost three years later, it must be obvious that the purpose here was not to prepare the lands for settlement but that this was a political move directed against the Cherokees to force a cession of the lands."199

The Cherokees claimed that in the Outlet they owned fences and buildings valued at a quarter of a million dollars. They desired to keep the lands and held on tenaciously. The orders removing cattle herds and the deprivation of the Cherokees of the use of the lands, in place of alarming them, only inspired a hope and sure expectation that it would all be made right.200 On March 20 they presented a memorial201 to Congress protesting against amendments to a bill proposing to organize a territorial government for Oklahoma which should include a portion of the Outlet

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within the proposed Territory.202 It was observed that the effect of the amendments would be to discredit the claim and title of the Cherokees to lands in the Outlet, invite aggression upon the lands, and that if the amendments were carried into acts of legislation they would be looked upon by the Cherokee nation as designed to enforce a sale of the lands at the terms and price demanded by the United States. The memorial stated that the Cherokee nation had at no time made any offer or suggestion for the disposal of the lands for general occupancy and settlement and that it was evident that the United States no longer desired to acquire the lands for the settlement of friendly Indians thereon. The memorialists insisted that if the government must have the lands, the purchase should be made without compulsion or coercion and a fair price paid for the same.

Had the Cherokees promptly accepted the offer of the Cherokee Commission to purchase their title or interest in and to the lands west of the Arkansas, they would have saved the Department of the Interior and congressional committees the task of probing an almost fathomless mass of rights, claims and interests in and to the lands. The Commission had tried to avoid the tangle.203 It was clear that the Cherokee title was overshadowed by the treaty of 1866. Once it was securely established that the Cherokee patent was legally sound and that the patentees had abandoned the Outlet, the lands would consequently revert to the United States and there would be little if any necessity of negotiating with the Cherokees.204 The question of title and rights in and to Cherokee lands west of ninety-six degrees involved treaties, legislation, and official communications going back for nearly a century together with conflicting court decisions. It is little wonder that Commissioner Thomas J. Morgan should conclude that the Cherokees had a perfect title to lands in the Outlet and that

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Secretary Noble should consider that they had only an easement in the lands; that the latter should charge the former with falling into "many errors of law and fact" and that the Commissioner should reply to his chief in a letter of twenty pages maintaining that he had not done so.

Various views regarding the validity of the Cherokee title may be briefly noted. In 1882 Secretary Kirkwood considered that the Cherokees had a fee simple title to the Outlet prior to 1866. In a letter of February 28 he said in regard to the Comanche and Kiowa treaty of 1865: "The United States, by that treaty, undertook to set apart for the Kiowas and Comanches a part of the Cherokee lands to which the United States had then no title, and which the Cherokees at that date owned in fee simple. Of course the Kiowas and Comanches took nothing under that treaty, because the United States had nothing to give."205 So completely did he consider that the title after 1866 remained in the Cherokees that he questioned whether the United States had secured the right to grant other Indians permission to hunt in the Outlet, if disconnected from settlement and occupation.

Nor was Secretary Teller disposed to disagree with his predecessor in regard to the title of the Cherokees. He wrote: "Under the decisions of the courts as to the title to which they hold their lands, and the guarantee pledged them by the United States in the 16th article of the treaty of 1866, can any one question or doubt their right to make such disposition of the grass growing on their lands as they have made, whether it is called a lease, license, or permit? The land is theirs and they have an undoubted right to use it in any way that a white man would use it with the same character of title, and an attempt to deprive the nation of the right would be in direct conflict with the treaty as well as the plain words of the patent. They are quite capable of determining, without the aid of the Interior Department or Congress,

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what is to their advantage or disadvantage, and the Government cannot interfere with their rightful use and occupation of their lands, which are as rightfully theirs as the public domain is that of the United States, subject only to the provisions of article 16 of the treaty of 1866, which at most is only a contract to sell certain portions of the land; but until the Government settles friendly Indians thereon and pays for the land the right of possession and occupancy is especially reserved."206 Teller held that the Cherokees had a fee simple title to their lands and that the article referred to did not change or modify their title or vest any title in the United States to the lands west of ninety-six degrees. He said that it simply gave the United States the right, with certain conditions to follow, to settle friendly Indians in that country.

The chief decisions of the courts are worthy of notice. In 1872 the Supreme Court of the United States said in regard to the abandonment clause in the Cherokee patent: "Strong doubts are entertained whether that condition in the patent is valid, as it was not authorized by the treaty under which it was issued. By the treaty the United States covenanted and agreed to convey the lands in fee-simple title, and it may well be held that if that condition reduces the estate conveyed to less than a fee, it is void."207 The court found that the Cherokee treaty of 1835 was not made in virtue of the Act of May 28, 1830, but was made under the treaty-making power vested by the Constitution in the President and Senate. It is to be regretted by students of Oklahoma history that an extensive inquiry concerning the title or interest of the Cherokee nation in and to the lands of the Outlet was never made by the Supreme Court. However, in 1890, when considering the question of the right of eminent domain regarding lands in the

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Outlet, the court said: "The fact that the Cherokee Nation holds these lands in fee simple under patents from the United States, is of no consequence in the present discussion."208

In 1879 Judge Isaac C. Parker of the United States circuit court for the western district of Arkansas held that lands situated and lying in the Cherokee nation, whereon certain depredations had been committed, were not lands of the United States in the sense of the language used in Section 5388 of the Revised Statutes of the United States.209 In his opinion, the Cherokee treaty of 1833 was broad enough in its terms to convey a fee simple title to the lands, and there was no limitation to the title conveyed by the United States under the treaty. He said that if the treaty were inconsistent with the act of May 28, 1830, it repealed so much of it as was inconsistent. He stated that if the lands had already been ceded to the Cherokees forever by the treaty of 1833, then the agreement by the United States, by the treaty of 1835, to give them a patent for those lands, according to the provisions of the act of 1830, was a mere nudum pactum. He considered such an agreement by the United States as an attempt to place a restriction upon a title which had already passed, and which according to the treaty of 1833 was to be evidenced by patent. In his view the Cherokee title was a base, qualified or determinable fee,210 with only a possibility of reversion, and not the right of reversion in the United States; and all the estate was in the Cherokee nation.211 He noted that the Cherokees were not likely to become extinct and had no intention of abandoning the lands then occupied by them. He set forth the doctrine that Congress had no constitutional right to interfere with rights under treaties, except in cases purely political. This doctrine however would not apply to the

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Cherokee lands west of ninety-six degrees because of the Cherokee treaty of 1866.

In this opinion Parker may have had reference chiefly to Cherokee lands not in the Outlet; but no doubt exists as to what he meant when he dealt with the subject of Cherokeee lands six years later. In 1885 he stated that the Cherokees held all their lands by substantially the same kind of title,212 the only difference being that the Outlet was incumbered with the stipulation that the United States was to permit other tribes to get salt on the Salt Plains. "With this exception," said Parker, "the title of the Cherokee Nation to the Outlet is just as fixed, certain, extensive, and perpetual as the title to any of their lands." He held that the subjection of the lands of the Outlet to the will of the tribe satisfied the requirement of the occupation clause as used in the act213 of January 6, 1883, since actual residence of the Cherokee nation on the lands would be an impossibility and an absurdity. The "plain meaning" of article sixteen of the treaty of 1866, as he understood it, was that when the United States should desire any of the Outlet for the settlement of friendly Indians on the same, that the Cherokees would sell the same to such Indians, and make title in fee-simple to them for the same, the purchase price to be paid by them, or the government for them, to the Cherokees.

In an opinion the next year Parker stated that the title to the Outlet was fully and completely in the Cherokee nation, and until they agreed to part with the same, it could not be taken from them.214 He said that the Cheyenne and Arapahoe treaty of 1867 had never been consummated, as the Cheyennes and Arapahoes never occupied the lands set apart by the treaty. He added: "They have no just claim to it, and it still belongs to the Cherokees." In

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regard to the act of May 29, 1872 which referred to the Cherokee lands west of the land of the Osage Indians as "ceded" to the United States for the settlement of friendly Indians, and in regard to the subsequent appraisal made by President Hayes, Parker said that the Cherokees by the treaty of 1866 "ceded no lands to the United States west of the ninety-sixth degree. They only consented the United States might settle friendly Indians on the land west of the ninety-sixth degree, and agreed to cede, not to the United States, but to the friendly Indians when they went on the land. Under this law the President had no right to appraise any land except what had been sold to the friendly Indians by the Cherokees. The appraisement by him of any other lands took away no rights from the Cherokees, and gave none to the United States."

In 1887 Judge David J. Brewer of the United States circuit court, district of Kansas, found the Cherokee title to the Outlet of less importance than set forth in the opinions by Parker.215 He referred to the treaties of 1828 and 1833, and observed that no distinction was made in the granting clause of the patent between the seven million acre tract and the outlet west. He stated that manifestly Congress had set apart the seven million acre tract as a home for the Cherokees. "Beyond that," he said, "the guarantee was of an outlet,—not territory for residence, but for passage ground over which the Cherokees might pass to all the unoccupied domains west. But while the exclusive right to this outlet was guaranteed, while patent was issued conveying this outlet, it was described and intended obviously as an outlet, and not as a home." Brewer held that the Outlet was not territory, within the language of the act of January 6, 1883, "occupied" by the Cherokee tribe. He said however that in a certain sense the Outlet was occupied by the Cherokee nation because they had a title and right to possess it.

The question of the right of the Cherokees to settle on the lands of the Outlet was one of growing interest. In 1879 J. M. Bell and his colony, including a half dozen persons who claimed

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to be Cherokees, were removed by the military216 from their settlement on Chikaskia River, not far from the present site of Blackwell, because Cherokee lands west of ninety-six degrees were not considered subject to settlement except in the manner prescribed in the Cherokee treaty of 1866.

Commissioner Hayt stated that the Cherokees had no right to settle upon Cherokee lands west of the ninety-sixth meridian, without first obtaining the consent of the Cherokee national authorities, and then only upon those lands which had not been set apart by the government to other Indians under the provisions of article 16 of the Cherokee treaty of 1866. He also noted that Indians who might locate upon said lands with such consent were still within the jurisdiction217 of the Cherokee nation, and subject to its laws, and that they could acquire no title to said lands which would prevent the government of the United States, whenever it might deem proper so to do, from settling Indian tribes thereon in accordance with the terms of the treaty above mentioned.

Attorney-General Charles Devens, more severe than Hayt, held that the Cherokee nation had no right to settle its citizens on those lands so long as the privilege acquired by the United States to settle tribes of friendly Indians thereon existed; and that no person attempting a settlement on the lands could justify under any authority given by the Cherokee nation.218 He considered it the duty of that nation to prevent such settlement since it was interested in obtaining payment for lands on which the United States should settle friendly Indians.

On February 9, 1887 J. M. Bryan, "Old Settler" Cherokee Commissioner, wrote to Commissioner Atkins as follows: "For the in-

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formation of Some of the citizens of the Cherokee Nation, I respectfully ask, if they could Safely Settle on the Cherokee Strip West of 96th longitude; there are quite a number [who] would like to move out West, Provided it would not interfere with [the] Cherokee Treaty [of] 1866."219 Atkins replied that because of the treaty they had "no right to settle on land west of the 96°."220

However a few Cherokee settlers were already in the Outlet. In 1889 John W. Jordan stated that he and twenty others were residing there "in good faith on Cherokee land." He said they had good farms opened and had labored hard seven years to make them. Some of the farms contained a hundred acres or more. On June 22 Acting Commissioner Belt directed that the Cherokee authorities be advised of Jordan's location to the end that they might take proper steps for his immediate removal, since Cherokees had no right to locate farms in any part of the Outlet.221 "With the principle of American independence and the love of my family in my heart," said Jordan, "I am compelled to refuse to surrender my house and sacred rights to an unjust cause. We own the land by the strongest title on earth and have strong treaty guarantee of possession and jurisdiction until sold."222

Chief Mayes was not disposed to lift up his hand against his countryman. He believed that Jordan should be permitted to remain upon the lands, subject to removal in case the United States needed the lands for settlement of friendly Indians. He said that it was a strange request to make of the Cherokee authorities, to remove as an intruder or as an unlawful resident of the country, a Cherokee Indian from lands which he owned in common with others by a fee simple title and had owned peaceably for over half a century.223 He maintained that the Cherokee title was in no wise compromised by the privilege granted the United States in the treaty of 1866; that it remained the same as before the privilege was granted, by reason of retained possession and jurisdiction.

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He held that the right of the United States to settle friendly Indians on the lands was merely a contingency to be exercised only when it was the policy of the government to put it to use. If there was to be a removal he believed it should begin with "a lot of lawless trespassers that the Cherokees have been cursed with for years." The Chief said plainly that he would not remove Jordan from "his own soil,"224 and Belt accordingly recommended that the matter be referred to the Secretary of War with the request that proper military officers be directed to cause him and his fellow settlers, with their movable property, to be removed from the Outlet within a reasonable time.225 Thus the Cherokees could not settle on the lands,226 lease or sell them to any party except the United States or with the consent of the government. Of what more value could the lands be to them than an Outlet in Africa?

Such were the points subject to argument when the Cherokee Commission resumed its labors in 1890.227 The Commission could do nothing with the Cherokees at Tahlequah until the Chief should call the National Council in special session,228 or until it convened in November. So Chairman Jerome did not promptly buck the line that had held firmly against two attempts of the Commission under the leadership of the one-armed veteran from Madison; he was able to begin with an easier task. And during the spring, summer, and autumn the Commission made a total of five agreements with the Iowas, Sacs and Foxes, Pottawatomies and Absentee Shawnees, and the Cheyennes and Arapahoes. Success-

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ful negotiations with the Cherokees229 would have closed the year remarkably well, whereas failure with them would leave the Commission a cap of at least five feathers.

Attention may be turned momentarily to the ranchmen who, like the Cherokees, were fighting a losing battle. On August 30 Secretary Noble wrote to the Commissioner of Indian Affairs that the President "has instructed me that no change will be made in the date required for the removal of the cattle from the Cherokee Outlet; all questions involved have heretofore been determined, so far as the Executive is concerned."230 After an interview with Noble a few days later Jerome and Sayre left with him a memorandum231 saying in part: "The order requiring cattle to be removed from Indian reservations, and especially from the Cherokee Outlet, must not be extended, modified or in any manner changed. If that should be done it would bring discredit and distrust upon the Commission attempting to extinguish Indian titles in the Indian Territory. Because in contracts that have been made, an inducement thereto has been the declaration by the Commission to the Indians that that order was final and revenue from that source would forever cease. It would obstruct our future attempts at negotiation because the Indians would believe that the government had no fixed purpose in relation to that subject; and that after awhile they would be restored fully to the old order of things. There is and can be no substantial reason why every hoof there rightfully under the President's proclamation cannot be removed by October 1st proximo without injury or loss to anyone. It is setting up comparatively small personal rights against a great public enterprise. All men, there in good faith and by fair dealing, expect to go and have provided for it. Those that have not done so have not only negligently but wilfully put themselves in that condition, so that a change will be paying a premium to those who

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have disobeyed the law and will visit a severe penalty upon those who in good faith have obeyed it." The Commission was advised that the time for the removal of cattle from the Indian Territory would not be extended.232

While Jerome and Sayre were submitting the memorandum, a proposition consisting of one sentence was addressed to the President from Caldwell, Kansas. It read: "We, the undersigned members of the Cherokee Strip Live Stock Association, and others holding cattle on the Cherokee Strip, hereby pledge ourselves and agree that if the order for removal from said Strip be extended from Oct. 1st, to Dec. 1st, 1890, that we will by, or before Nov. 1st, 1890, remove one half of our cattle from the Strip, and all the remaining part of the cattle, together with all our employees and all property that may be thereon, entirely abandoning all claims upon the Strip by the 1st day of December, 1890."233 A proclamation was prepared extending the time for removal as specified in the proposition. The proclamation stated that it had been presented to the President that by reason of the drought which had prevailed in the Indian Territory and in the adjoining States that the execution of the proclamation of February 17 would work great hardship and loss, not only to the owners of cattle herded upon the Outlet, but to owners of cattle in the adjoining States. On September 18 Assistant Secretary Chandler transmitted the proclamation to President Harrison who signed it the following day.234

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Under date of October 8 Acting Commissioner Belt issued a public notice235 whereby the order of March 29 of that year relative to the removal of cattle and other live stock held on Indian lands in the Indian Territory was modified so as to extend the time of removal to November 15, as to one half of the cattle and other live stock, and to December 1 as to the residue thereof. Under orders from the War Department, dated December 31, troops and Indian scouts proceeded to the Outlet and removed "divers and sundry persons" resident or being there; some cattle were also removed.236

The next article of this series tells the story of how the Cherokees, being deprived of the benefit of the lands of the Outlet by the government, conceded to a sale of the lands on December 19, 1891.237

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