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Chronicles of Oklahoma
Volume 20, No. 4
December, 1942

By Berlin B. Chapman

Page 375


Part One of this series of articles dealt with the failure of the Cherokee Commission in 1893, and that of the Osage Commission in 1894, to induce the Osage Indians to select allotments and sell their surplus lands to the United States. In their "ultimatum" the Osages demanded that the tribal roll should first be purged of names of persons "not entitled to be there." After considerable political maneuvering the roll was purged.

Part Two of this series spans the first half-dozen years of the twentieth century, explaining conditions on the Osage reservation just prior to allotment of lands there.

In the opening years of the century the Osages—located on the wide expanses of what is now Osage county—did not need to work, nor were they overshadowed by the curse of poverty; indeed they could well be envied by half the world. Agent Oscar A. Mitscher observed that the attitude of the Osage Indian was not unlike that of a "well-to-do farmer, who, having accumulated a moderate competence, rents his farm and moves to town to give his children better school advantages and indulges himself in his declining years in ease and indolence."51 A great majority of the Osages had from

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one to six farms in the family and gave personal and intelligent attention to the collection of rents.52

The homestead selection, explained in Part One of this series, was intended to be a bona fide home for the Indian, and an inducement to develop his own farm. But, in fact, he became more of a landlord and his servant, the white man, said Mitscher, "is the sole factor in subduing this soil and these forests for husbandry."53 The property interests of the Osages had been so large as to induce whites to marry into the tribe, and mixed-bloods became numerous. Many mixed-bloods were practically white and by keen business instincts of the white man they secured possession of the greater part of the improved lands of the reservation. The non-progressive full bloods as a rule were content to live in camps and villages in the south central and southwestern part of the reservation where they clung to tribal customs and the theory of communal property.

As the full-bloods, gradually outnumbered by mixed-bloods, ceased to play the leading role, the matter of allotment became vital. On March 17, 1904, Bird S. McGuire introduced a bill in the House of Representatives providing for the "equal division of the tribal lands of the Osage Indians among themselves."54 Agent Frank Franz considered that such legislation was not far in the future for the Indians wanted it and conditions demanded it.55 In June an election was held at which the Business Committee or National Council, composed of a principal chief and eight councilmen, was chosen. It is said to have been one of the hardest fought elections ever held on the reservation. The allotment question was the issue and O-lo-hah-wal-la, who favored allotment, was elected chief, receiving 224 votes while his opponent received 165 votes.

On November 28 the Committee passed a resolution authorizing the chief and local agent to appoint a delegation of nine persons to go to Washington "to discuss subjects of importance and interest" to the tribe and to be vested with full power to represent them. An interpreter and the local agent were to accompany the delegation. On the same day the ten persons were accordingly chosen, a majority of them being full bloods.56 It appears that the

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delegation spent some four or five weeks in preparing a bill for the division of the lands and monies of the tribe, that the bill went back and forth a half dozen times between the delegation and the Department of the Interior, that the full blood members of the delegation could almost quote the bill, and that on January 10, 1905, McGuire introduced it in the House of Representatives.57 Franz believed that the bill was satisfactory to the great majority of the tribe; and on February 16 the House Committee on Indian Affairs reported it favorably.58 In his annual report Franz called attention to the act of March 3 authorizing the President, at his discretion, to allot the lands of any tribe of Indians to its members,59 and added: "I certainly trust he may be prevailed upon to begin with the Osages in the near future."60

In February 1906 a bill prepared by the Osages, favorably passed upon by them at their last general election, and brought to Washington by delegates representing all factions of the tribe, was introduced in the House of Representatives.61 For better or worse it was subjected to several amendments, but was passed by Congress, approved on June 28, and became known as the Osage Allotment Act.62 It was a composition prepared by many cooks among whom Charles Curtis was probably chef.

By the act the tribal roll as it existed on January 1, with proper corrections to July 1, 1907, was declared to be the basis of the division of lands and funds among the tribe. The principal chief was allowed three months after the approval of the act to file with the Secretary of the Interior a list of the names which the tribe claimed were placed upon the roll by fraud, but no name should be included in the list of any person or his descendants that was placed on the roll prior to December 31, 1881, the date of the adoption of the Osage constitution.63 The decision of the Secretary of the Interior should be final64 in determining questions of tribal membership.65 The process by which the lands were to be divided among the tribe was contemplated to give to each member his fair share in acres and was set forth in substance as follows:

62Act of June 28, 1906, 34 Statutes, 539; Kappler iii, 252. A supplementaryand amendatory act was approved April 18, 1912, 37 Statutes, 86; see also the act of March 3, 1909, 35 Statutes, 778.

A decade ago, while I was in the archives of the Interior Department examining scores of early letters and papers by Charles Curtis, that friend of the Osages, then having become Vice-President of the United States, read parts of this series of articles and made valuable notations.

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(1) Each member should select, or have selected for him, one hundred and sixty acres as a first selection. Adult members were to make this selection and file notice of the same with the local agent within three months after approval of the act. Vested interests in improved lands were to be given consideration and the interests of minors safeguarded. (2) After each member had made a first selection he should be permitted to make a second selection of like area in the manner provided for in the first selection. (3) After each member had selected his second selection he should be permitted to make a third selection of like area in the manner provided for in the first and second selections. Selections were to conform to existing public surveys in tracts of not less than forty acres, or a legal subdivision of a less amount designated as a "lot." (4) The remaining lands, with certain exceptions, were to be "divided as equally, as practicable among said members by a commission to be appointed to supervise the selection and division" of the lands. The commission should consist of one member of the tribe, selected by the Council, and of two persons selected by the Commissioner of Indian Affairs subject to the approval of the Secretary of the Interior. It was the duty of the commission to settle all controversies between members of the tribe relative to selections of land. The surveys, salaries of the commission, and all other proper expenses necessary making the selections and division of the land were to be paid by the Secretary of the Interior out of any Osage funds derived from the sale of town lots, royalties from oil, gas, or other minerals, or rents from grazing land.

The act set apart three quarter sections at Pawhuska, Hominy, and Gray Horse respectively for the exclusive use and benefit of the Indians, for dwelling purposes, for a period of twenty-five years from 1907; however, the land could be sold at discretion of the tribe.

Provisions for the execution of deeds and for the sale of surface lands were in some respects similar to those in the act of July 1, 1902, providing for the division of the Kaw lands. However, provisions in the Osage Allotment Act regarding alienation and taxtion of homesteads were obscure; if they were clear to judges in the Federal courts, they were at least confusing to laymen.66 The

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fourth paragraph of Section Two reads: "Each member of said tribe shall be permitted to designate which of his three selections shall be a homestead, and his certificate of allotment and deed shall designate the same a homestead, and the same shall be inalienable and nontaxable until otherwise provided by Act of Congress. The other two selections of each member, together with his share of the remaining lands allotted to the member shall be known as surplus land, and shall be inalienable for twenty-five years, except as hereinafter provided."

The seventh paragraph reads: "That the Secretary of the Interior, in his discretion, at the request and upon the petition of any adult member of the tribe, may issue to such member a certificate of competency, authorizing him to sell and convey any of the lands deeded him by reason of this Act, except his homestead, which shall remain inalienable and nontaxable for a period of twenty-five years, or during the life of the homestead allottee. * * * Provided, that upon the issuance of such certificate of competency the lands of such member (except his or her homestead) shall become subject to taxation, and such member, except as herein provided, shall have the right to manage, control, and dispose of his or her lands the same as any citizen of the United States: Provided, that the surplus lands shall be nontaxable for the period of three years from the approval of this Act, except when certificates of competency are issued, or in case of the death of the allottee, unless otherwise provided by Congress."67

In an opinion of the Circuit Court of Appeals, Eighth Circuit, the two provisions were explained as follows: "The chief subject of the seventh paragraph of section 2 is the permissible alienation and taxation of the lands of that class of Osage allottees who obtain certificates of competency from the Secretary of the Interior. The subject of paragraph 4 is the permissible alienation and taxation of the lands of Osage Indians generally, regardless of the question whether they have certificates of competency or not. Under familiar rules these provisions of the two paragraphs must be read together, the former as the special law of the particular class of lands there

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treated, and the latter as the general law applicable to all classes of lands of the Osage Indians. * * * The true construction of the exception in the seventh paragraph is that it is limited in its effect to the homesteads of the class of Osage allottees who obtain certificates of competency—the class that is the subject of the sentence in which the exception is found.68

The act stated that the lands were set apart for the sole use and benefit of the individual members of the tribe; and that, with the approval of the Secretary of the Interior,69 they might lease the same for farming, grazing or any other purpose not otherwise specifically provided for in the act. The oil, gas, coal and other minerals were reserved for the use of the tribe70 for a period of twenty-five years from April 8, 1906. Leases for mining and production of minerals might be made by the Indians through their Council, subject to the supervision of the Secretary of the Interior. The President was authorized to determine the royalties to be paid to the Osages under any mineral lease. At the expiration of twenty-five years from January 1, 1907, the lands, mineral interests and moneys provided for in the act and held in trust by the United States were, with certain limitations, to become the absolute property of the individual members of the tribe, and deeds for lands were to be accordingly issued. Suitable provisions were made for lands necessary for railroads and highways. All things necessary to carry into effect the provisions of the act, not otherwise specifically provided for, were to be done under the authority and direction of the Secretary of the Interior.

Agent Ret Millard hailed the act as one of the most beneficial pieces of legislation for the Osage Indians and the country in general that had been enacted for years.71 In accordance with its provisions Charles E. McChesney and Charles O. Shepard were appointed by the Department of the Interior, and the Osages selected Black Dog, a full blood member of the tribe, as members of the Osage Allotting Commission.

On August 8 instructions were approved for the guidance of the Commission in supervising the selection and division of the lands.72 The instructions stated that the making of selections could begin by

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the Indians whose names were on the roll as it existed on January 1, 1906,73 without waiting for the purging and correction contemplated by the act. It was observed that selections were to be made in order—first, second and third. "This means," reads the instructions, "that so far as the roll is made up and determined at the time, all the first selections shall be made before any of the second selections can be made; and in like order for the second and third selections. Only by a rigid adherence to the order of selection can equal and exact justice be done to all the members of the tribe. But, unless otherwise ordered, the work of making the second and third selections will not be suspended awaiting the completion and settlement of the final roll."

The Commission was instructed that in choosing selections and in making allotments the rule of "approximation," as it obtained in the General Land Office, would apply; that is, the applicant was entitled to the nearest approximation to one hundred and sixty acres, following the legal subdivisions as shown by the public surveys.74 Two schedules were to be prepared; one to be designated "Homestead Selections," the other, "Surplus Lands." The two selections of each member, not including his homestead, together with his share of the remaining lands and all the reservations of land mentioned in the act were to be entered on the latter schedule. Provision was made for necessary resurveying. The Commission was organized at Pawhuska on August 14; McChesney was chairman and Cassius R. Peck was secretary.75

The tribal roll, a thorny question for many years, was one of the first to confront the Commission. Commissioner Leupp estimated that enrollment with the Osages was worth something like twenty-five or thirty thousand dollars.76 About 160 applications for enrollment came before the National Council for consideration. Agent Millard, who was present during the hearings of the cases, said that persons concerned were duly notified and that "every paper was submitted

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and read by an interpreter to the council, and all evidence was submitted both pro and con in the cases."77

On August 16 Millard transmitted to the Office of Indian Affairs the formal proceedings of a meeting of the National Council held July 30 at which time the chief submitted the names of 244 persons who were charged with being on the roll through fraud.78 On February 15, 1907, he transmitted also the certified roll of the tribe.79 The cases of nearly all the contestees had been investigated in 1896-1898, and the materials produced in the first investigation were used in making the second. Contestees were divided into the following families for purposes of investigation: Clem, Javine, Perrier, Fronkier, Herridge, Holloway, Labadie, Omaha, Lyman, Lombard, Brown and Appleby. The case of each family was set for hearing, and hearings were had before the Commission between the months of March and June. Special Agent Arthur T. Woodward appeared for the tribe, while the contestees were represented by various counsel.80

Evidence was taken on behalf of the parties, and the record thereof, with the findings of the Commission in each case, was transmitted to the Office of Indian Affairs.81 The Commissioner of Indian Affairs, or the Secretary of the Interior upon appeal, found that the tribe failed to establish its claim of fraud and the enrollment of all contestees was sustained. The roll as approved by Secretary Garfield April 11, 1908, contained the names of 2,230 persons, all but one of whom were entitled to share in the division of lands.82 Of

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the allottees 926 were full bloods and 1,303 were mixed-bloods or adopted persons.

Before taking up the story of the three selections and the final division of lands, it is well to consider the Florer Case, the matter of surveying, the complaints against the Commission, and the role played by agents of the cattlemen.

When the Osage Allotment Act was passed, John N. Florer had been a licensed trader among the Osages for more than thirty years, and together with his son and son-in-law he had erected dwellings near Gray Horse at an expense of nearly $10,000.83 The act provided that there should be reserved from selection and division forty acres of land to be designated by the Secretary of the Interior, on which were located certain houses described, and that Florer should be allowed to purchase the forty acres at the appraised value placed thereon by the Osage Alloting Commission. The Commission appraised the land at eight hundred dollars and reported the same to the Office of Indian Affairs, December 24, 1906. On January 16, 1907, the Department of the Interior approved the selection and appraisal and a form of deed for conveying the land to Florer was shortly thereafter submitted to the Commission.

In the meantime, January 10, Florer died. The Principal Chief refused to execute a deed to the heirs, claiming that the grant of Congress was without authority and that the right to purchase was a personal one and terminated upon the death of Florer. The Office of Indian Affairs was unwilling to take any steps to require him to execute a deed.84 McChesney stated on November 23, 1908, that he felt satisfied that no Principal Chief of the tribe would sign the deed voluntarily, and he asked for instructions regarding the allotting of the land. On December 10 Acting Commissioner Valentine observed that Florer was in no way delinquent in the matter and recommended that the same be left "in the hands of the heirs and the courts." On December 17 Millard reported that the male adults had voted 206 to 134 against allowing the heirs to take deed to the land.85

The attorneys and a delegation representing the tribe were orally heard by the Department of the Interior, but on February 1, 1909, Assistant Secretary Wilson concluded that the right to purchase was one that descended to the heirs of Florer. He denied the request of the Osages that the land be allotted, saying that he knew of no authority to do so. He preferred to leave the whole question to the courts and said that the matter should not in any way detain

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the Commission. On April 15, 1913, the Federal Court for the Western District of Oklahoma held that it was without jurisdiction to compel the chief to execute a deed to the heirs. In 1927 Commissioner Burke did not find that any further action had been taken in the matter.86 Thirty-seven and one half acres of the forty acres had been allotted to individual members of the tribe.

The reservation was surveyed in 1871-1872 under what is known as the J. C. Darling contract. The lands were sectionalized, with corners set at half mile distances along the north, south, and east and west lines of the sections, without center mounds or lines dividing the 640 acre squares into quarter sections.87 While a number of the Osages complained that they could not locate the outboundaries of their allotments, the tribe was reluctant to pay for a resurvey of the reservation. In the summer of 1907 the Commission was instructed to proceed with the retracement and subdivisional survey of the reservation looking toward the reestablishment of the lost and obliterated corners, and for the establishment of corners where Indians had made selections in less than one hundred and sixty acre tracts.88 By reason of representations in McChesney's letter of July 2, the Commission was directed July 9 to hold the matter of the reestablishment of subdivisional lines of the quarter sections in abeyance until it could be determined how far such surveys were necessary.89

On September 30 Peck estimated the total cost of a retracement survey and subdivisional survey at $175,891. He explained that, if desired, the Commission would make the survey.90 He stated that about eighty percent of the corners established under the Darling contract were lost or disturbed and that about ten percent of the standing corners were erroneously marked. He stated that allotments could be made without the proposed surveys, and that they were necessary only to enable the Commission to properly point out allotments to the Indians and to save them future litigation. While he found a portion of the more intelligent mixed-bloods in favor of the surveys even at the expense of the tribe, he believed that the majority sentiment of the Osages would strongly oppose the use of tribal funds for that purpose. In case of surveys he considered that the National Council, controlled by the full blood sentiment of the tribe, would offer resolutions asking that the surveys be stopped and "further charging the Commission with extravagance." He said that a majority of the members of the tribe would continue to cling tenaciously to the theory that other tribes,

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upon allotment, had had their lands surveyed for them by the United States out of public appropriations, and that the Osages were being discriminated against simply because they had a fund from which it was possible to make the surveys. He explained that the Commission wished to undertake the work "only after the Office has knowledge of the fight which the tribe will in all probability make against such surveys, and if the Commission undertakes such surveys, we desire to carry the same to an end without interruption."

In 1907-1908 a retracement of the survey under the Darling contract was made under the supervision of the General Land Office at an estimated cost of about $61,000.91 The Osages claimed that the cost of the resurvey should have been paid for by the government for the reason that they had already paid for a survey of the reservation; and they did not consider a second survey necessary. They claimed that the survey was particularly beneficial only to Osage county.92

In a locality where efficient administration was far from being proverbial, one could not expect a commission to divide nearly a million and a half acres among more than two thousand allottees and escape the wrath of some parties concerned. Especially did the National Council and disgruntled agents of the cattlemen attack the integrity or efficiency of the Commission and bring grievances before the Office of Indian Affairs. The nature of complaints that led up to the Flanders Investigation in January 1908 is worthy of note.

The National Council in a special session on January 9, 1907, passed a resolution stating that the Commission was "an unwieldy, expensive and unnecessary institution"; that salaries of persons employed in the work of allotment amounted to $59.080.50 a year, and that in addition "costly office fixtures, typewriters and other things necessary, and unnecessary" were being purchased with tribal funds.93 Because of the expense which was said to be four times as great as necessary it was urged that Congress be requested to amend the Osage Allotment Act so as to direct that the Commission be abolished and that the duties be transferred to the local agent who should supervise the work, the same to be subject to the approval

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of the Secretary of the Interior. It was stated that the agent should receive extra compensation for the work. Commissioner Leupp said that the Indians probably did not realize the importance of the act or the magnitude of the work necessary in carrying it into effect.94 Secretary Hitchcock agreed that the request for special legislation should not be complied with.95

Parties called "locators" purported to be especially well informed as to the most desirable lands on the reservation, and for stipulated sums they offered to make choice selections for allottees, or to sell "numbers of land" to them. Of particular importance in this business was the "Osage Land Company." On March 7 McChesney was instructed to explain to the Indians that the company could not possibly be in possession of any information not obtainable from the Commission free of charge; and he was authorized to use every honorable means to break up the trade of the company.96

In August a complaint was made that "locators" were asking one hundred dollars of Indians to locate them on desirable lands, and also that filings under the second selection were at the rate of only fifty a day when they easily could be one hundred and fifty; the general dilatory manner of the Commission was complained of and Commissioner Leupp was asked to give the Osages a square deal, and not to let "these allotters down here pick all the feathers off."97

In a letter of explanation McChesney reminded Leupp that the charge of extravagance had been investigated the past April by Inspector James McLaughlin whose report had apparently fully exonerated the Commission of the charge.98 He said that the Commission at all times invited the most searching investigation of its entire work. It was agreed, from the best information attainable, that "locators" were charging Indians the specified sum for descriptions of desirable second locations; but it was explained that notices had been read, and posted by the Commission, printed regulations had been circulated and every honorable means had been employed by the Commission to break up the trade. McChesney said that the Commission had done all possible to expedite the work and keep the cost down, but that some of the Indians were "very indifferent to their second selections of land and will not even go with the Commission's surveyors to make selections, claiming the weather is too hot or that they have to attend a 'smoke' or some similar excuse. The simple fact of the case is that the Osage full-bloods are the laziest and most worthless tribe of Indians I have

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any knowledge of and the same remark will apply to a number of the mixed-bloods."

The two articles concluding this series will consider further McChesney's relations with the Osages, the role played by agents of the cattlemen in the dissolution of the Osage reservation, and the lottery plan by which the choice of lands for the Indians was determined.99

(To be continued)

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