SECRET "INSTRUCTIONS AND SUGGESTIONS" TO THE CHEROKEE COMMISSION
1889-1890

    The novice in historical research is sometimes astounded at the veil of secrecy that hangs over "restricted records" in depositories in the national capital. Later he learns that secrecy may be essential, but that it often fluctuates with the indolence and idiosyncrasies of a custodian, or his incompetence in locating the material desired. This situation does not minimize the fact that the Government Printing Office, the largest printing plant in the world, is a prime dispenser of information.
    The Interior Department has been one of the most liberal departments in disclosing the nature of its business to people in the American democracy. Many of its papers stamped "Confidential" are left unguarded where searchers can read and learn how freely a rubber stamp can be used. There have been times, however, when the Interior Department kept papers in such secrecy that the Senate was obliged to mingle patience with its dignity.
    Such was the case when the Cherokee Commission was sent to the Indian Territory in 1889 to negotiate with Indian tribes for the dissolution of their reservations, and the sale of the surplus lands to the government.
    The closing pages of the document of May 9,1889,are as follows:

INSTRUCTIONS AND SUGGESTIONS.


    It is believed that with the information given in the foregoing statement, which contains a history of each and every tract of land within the limits of the Indian Territory, except that portion thereof lying within the Quapaw Agency, the Commission will be enabled to intelligently enter upon the discharge of its a responsible duties; but it is deemed advisable to go further and make certain suggestions in relation to the proposed negotiations.

The Indians To Be Negotiated With


    Authority to negotiate with the following designated Indians is contained in the provisions of law referred to in the first part of this paper, namely:

    The Cherokees. Under Article 16, treaty of 1866—14 Stat. 804, for their interest in the lands lying west of the Arkansas River—6,574,486.04 acres.

    The Cheyennes and Arapahoes. For lands covered by the treaty of 1887—15 Stat. 593, containing 4,294,734 acres of Cherokee lands, and 730,162 acres of Creek lands.

    The Osages and Kansas. For lands set apart by Act of 1872—17 Stat. 228, and conveyed by deed from Cherokees to the U.S. in trust, dated June 14, 1888—1,570,196 acres.

    Pawnees. For lands set apart by Act of 1876-19 Stat. 29, and-(except as to that part thereof lying within the Creek cession)—conveyed by deed from Cherokees to U.S. in trust, dated June 14, 1883—283,020 acres.

    Otoes and Missourias. For lands aet apart under Act of March 3,1881—21 Stat. and conveyed by deed from Cherokees to U.S. in trust, dated June 14, 1883, 129,113 acres

    Poncas. For lands paid for out of appropriation made by Act of March 3, 1881—21 Stat. 422—and conveyed by deed from Cherokees to U.S. in trust, dated June 14, 1883—101,894 acres.

    Tonkawas For such interest as they may have in the lands set apart for the Nes Perce Indians under the Act of 1878—20 Stat. 74—and conveyed by deed from Cherokees to U.S. in trust for the Nez Perces, dated June 14, 1888, and re-conveyed by said Indians by deed dated May 82, 1886, to the U.S. in trust for the use and benefit of such Indians as the U.S. might see fit to locate thereon, 90,711 acres.

    Creeks. For that part of their domain lying east of the 96 degree, set apart under the several treaties hereinbefore referred to, estimated to contain 1,734,000 acres.

    Seminoles. For the whole of their reservation. Treaty of 1866,14 Stat 755, Act August 5, 1882—28 Stat. 266: 376,000 acres.

    Sacs and Foxes. For whole of their reservation. Treaty of February 18, 1867—15 Stat. 496—479.668 acres.

    Citizen band of Pottawatomies & Absentee Shawnees. For such rights as they may have in the reservation occupied by them under Act of 1878—17 Stat. 169, and the General Allotment Act, 24 Stat. 38—676,877 acres.

    Kickapoos. For whatever right they may have in the reservation occuppied by them, under Executive Order of August 16, 1883, and the General Allotment Act 24 Stat. 388—206,466 acres.

    Iowas. For whatever right they may have in the reservation occupied by them under Executive Order of August 16,1883, and the General Allotment Act 24 Stat. 388—228,418 acres.

    Cheyenne and Arapahoes. For such rights as they may have in the reservation now occupied by them under Executive Order of Auguat 10, 1869, and under the General Allotment Act of February 8. 1887, 24 Stat. 389, taken in consideration with their reservation created by the treaty of 1867—4,297,804.58 acres, excluding that occupied by t h e Wichita and afiliated bands.

    Wichitas, &c. For whatever rights they may have in the reservation occupied by them under the unratified agreement of 1872; the General Allotment Act—24 Stat. 388—143,610 acres, taking into consideration their claim to lands selected for them by Superintendent Rector in 1859.

    Choctaws and Chickasaws. For that part of the Choctaw domain lying west of the 96th degree, estimated to contain 1.521,200 acres, and for the whole of the Chickasaw domain,—4,660,986 acres, set apart by the various treaties with those Indians hereinbefore referred to.

    Kiowa, Comanche and Apaches. For their whole reservation, treaty of 1867—16 Stat. 581—2,968,893 acres.

The Cherokees


    You will observe by reference to the 14th Section of the Act of March 2, 1889,
    "That said Commission is further authorised to submit to the Cherokee Nation the proposition that the said Nation shall cede to the United States in the manner and with the effect aforesaid, all the rights of said Nation in said lands upon the same terms as to payment as is provided in the agreement made with the Creek Indians of date January nineteenth, eighteen hundred and eighty-nine, and ratified by the present Congress."
    It will be observed from the said agreement, which is embodied in the Act of March 1, 1889, ratifying it, Public 82, a copy of which is enclosed, that in consideration of the sum of $2,280,857.10, the Muskogee (or Creek) Nation of Indians, ceded to the United States, absolutely and without reservation or condition, full and complete title to the entire western half of the domain of said Nation, lying west of the dividing line established under the Creek treaty of 1866.
    The Amount of the consideration named ($2,280,857.10) was arrived at, as will be seen by reference to the president's letter of February 5, 1889, transmitting said agreement to the Congress, which may be found printed in Senate Executive Document, Number 98, 50th Congress, 2nd Session, a copy of which is herewith enclosed, by allowing the Creeks one dollar and twenty-five cents per acre for the lands embraced in the western half of their domain, outside of that disposed of by treaty to the Seminoles, 200,000 acres, to the Sacs and Foxes, 479,668 acres, and to the Pawnees 53,005 acres, being the lands finally disposed of to other Indians, deducting therefrom thirty cents per acre, the amount already paid under the treaty, and making a further deduction of twenty cents per acre, to cover cost of surveys and adjustments, on other lands assigned, and in which the Indians may have only an individual right to allotments in severalty, viz: The Citizen band of Pottawatomies and the Absentee Shawnees, 227,736 acres; the Cheyennes and Arapahoes, 619,450 acres, the Iowas, 228,416 acres; and the Kickapoos, 206,466 acres. In other words, the Creeks were allowed on all unassigned lands the sum of one dollar and twenty-five cents per acre, less the amount already paid therefor, thirty cents per acre; and a like amount—one dollar and twenty-five cents per acre—on all lands temporarily assigned, less the thirty cents per acre (originally paid) and twenty cents per acre (cost of surveys etc.)
    As before seen, the Cherokees have been paid for the lands occupied by the Osage and Kansas Indians, and a deed therefor, has been executed to the United States in trust for the last-named Indians, and therefore these lands, so far as the Cherokees are concerned, are not subject to negotiation.
    It has also been seen that the Cherokees executed deeds in trust to the United States for the lands occupied severally, by the Pawnees, the Otoes and Missourias, the Poncas and the Nez Perces.
    The consideration named in the Act of Congress requiring the execution of them deeds, as well as the $300,000 appropriated by the Act of June 16, 1880, (21 Stat. 248) was to be paid out of funds due the Cherokee Nation for lands lying west of the Arkansas River and not due for the particular tracts occupied by the said several bands of Indiana—therefore no specific price was fixed on said lands, and the price determined by the appraisement heretofore referred to was insisted upon by the Government. To this price the Cherokees objected, claiming it to be inadequate. In view of this statement, I hold that the fact that the Cherokees have conveyed the title to these lands, should not operate to prevent them from receiving a just and fair consideration therefor, and I am therefore of the opinion that these lands should be included in the proposition that will be submitted for the consideration of these Indians.
    You will therefore present to the Cherokee Nation a proposition to pay that Nation the sum of one dollar and twenty-five cents per acre for all lands covered by the 16th article of the Cherokee treaty of 1866, lying west of the Arkansas River, deducting the sum of $788,389.46, chargeable against said lands as hereinbefore set forth; and you will give due weight to the fact that as these several reservations were set aside, or subsequently confirmed by Act of Congress, the Indians residing thereon have greater rights therein than those conferred by individual allotments in severalty, and that the lands embraced therein are therefore not subject to the reduction of twenty cents per acre, as in the case of the Creek lands.
    As it is important that negotiations should first be had with the Cherokee Nation for its interests in the lands lying west of the Arkansas River, and then with such other Indians as own or claim an interest in the lands lying west of the 96th degree, you will proceed first to Tahlequah, Indian Territory, and submit the proposition, as above set forth, to the proper authorities of the Cherokee Nation. Should that proposition be accepted, and the legislature of that Nation is then in session, you will request the Principal Chief to submit the same for the action of that body; and should the legislature not be in session, you will urge upon the Principal Chief the importance of convening the same in extra session, if the same can be done under the laws of that Nation, for the purpose of acting upon said proposition; and should said proposition be accepted and ratified by the said legislature, a duly certified copy of the proceedings had in reference thereto, should be obtained and submitted with your report of your action in the matter to this Department.
    Should said proposition be rejected by the Cherokee authorities you will then proceed to negotiate for the extinguishment of the claim of the Cherokee Nation to all lands lying west of the Arkansas River, upon such terms as may be just and equitable, taking into consideration the appraisement heretofore made of said lands; the fact that a large proportion thereof was ceded by the United States to the Cheyennes and Arapahoes by the treaty of 1867; the several dispositions made of portions thereof, as hereinbefore set forth, to the Pawnees, the Otoes and Missourias, the Poncas, the Ner Perces, the conveyance by the latter Indians to the United States of the tract set apart for them and the subsequent settlement thereon of the Tonkawas; the several deeds executed to the United States in trust by the Cherokees, as hereinbefore recited, whereby the Cherokees divested themelves of the title to the tracts of land in question; the lands set apart for the Chilocco Industrial School and the several amounts chargeable against said lands; the purpose for which the said lands were given to the Cherokees; the question as to whether that purpose has not been fulfilled; and as to what extent, if any, it was extinguished and surrendered by them, by virtue of the provisions of the 16th article of the treaty of 1866, and the rights vested in the United States thereunder, and under which article the Attorney General held that these lands "were absolutely reserved to the United States, upon the conditions therein named (article 16 treaty of 1866) for the settlement thereon of tribes of friendly Indiansw (16 Opinions Atty. Genl. 471).
    When you shall have finished all negotiations with the Cherokees, you will make a full and detailed report thereof and submit all the papers to this Department.

Negotiations With Other Tribes


    After making report of your negotiations with the Cherokees, you will then visit the other civilized nations and Indian tribes of the Territory in the order that you may deem most advisable.
    Cheyennes and Arapahoes.—With these Indians you will negotiate for the extinguishment of whatever title they may have in the lands ceded to them by the treaty of 1867, including the portion tbereof that is within the Creek cessions of 1866-1889, and which is covered by the President's Proclamation of March 28, 1889, hereinbefore referred to.
    In negotiating with these Indiana it may be necessary to remind them that while the tracts of land in question were set apart for their use and benefit, they have never occupied or made use of them, but that for nearly twenty years they have been occupying and using other lands, to which they have no title; that the Cherokee Nation is entitled to a money consideration therefor, and that all the appropriations, amounting to about $88,000 per annum, have been annually made since that time as required by that treaty. In this connection it may be wise to call your attention to article 12 of the treaty of 1867. [Here follows a quotation from 16 Stats. 593.)

    2. The Act of Congress providing for the allotment of lands in severalty to Indians, &c., approved February 8, 1887, (24 Stat. 388) and which it will be necessary for you to consider in all negotiations had with Indians occupying reservations created by Executive Orders, contains the following in its first section. [Here is quoted from 24 Stats. 388 the provision for size of allotments.]

    It has been held that under the provisions of this Act Indians occupying reservations created by Executive Order are legally entitled to allotments of land in severalty. However the intention of Congress can hardly be so construed as to give allotmants in severalty to Indians on two reservations. This question should also be considered in your negotiations with the Cheyennes and Arapahoes.
The Wichitas and Affiliated Bands.—While at the Cheyenne and Arapahoe Agency, negotiations should also be had with the Wichitas and affiliated bands for any right or claim they may have to the lands now occupied by them in the southeast corner of the Cheyenne and Arapahoe Executive Order Reservation, by virtue of the unratified agreement of 1872 or otherwise.
    The Osage and Kansas, Pawnee, Otoe and Missouria, Ponca and Tonkawa—You will also negotiate severally and in such order as may be found most convenient, with the Osage and Kansas Indians, the Pawnee Indians, the Otoe and Missouria Indians, the Ponca Indians and the Tonkawa Indians, for the cession of the lands owned or occupied by them, taking into consideration the necessity of providing new reservations for the several bands or the allotment of lands in severalty to them. And in the caae of the Tonkawa Indians you should further consider the rights of those Indians in the lands now occupied by them in view of their settlement there, after the execution by the Nez Perce Indians of a deed conveying the lands to the United States in trust for such Indians a might be settled thereon, and also such rights as they may have under the provisions of the Act providing for allotments of land in severalty to Indians.
    Creeks. Seminoles and Sacs and Foxes.—You will negotiate with the Creeks for the cession of all that part of their domain that is west of the 96th degree, with the Seminoles, and Sacs and Foxes rerpectively, you will negotiate for the cession o their entire domain.
    Iowas, Kickapoos, Pottawatamies and Absentee Shawnees.—With these Indians you will negotiate respectively, for the cession of whatever rights they may have in the reservation respctively occupied by them.
    In the case of the Iowas and Kickapoos, whos respective reservations were created by Executive Order, you should take into consideration such rights as these Indians may have therein under the General Allotment Act of February 8, 1887, and in the case of the Citizen band of Pottawatomis and Absentee Shawnees, such rights as they may have in the reservation now occupied by them under the said Act and the Act of 1872, considering the several tracts paid for by individuals. Consideration should also be given the question of creating new reservations for these several bands of Indians or by giving their members allotments in severalty.
    Choctaws and Chickasaws.—With these Indians you will negotiate for the cession of that part or the Choctaw district lying east of the 96th degree, and for the whole of the Chickasaw district and in case of the cession of the district occupied by the Chickasaw Indians, arrangements should be made for the settlement of said Indians within the Choctaw district.
    The Kiowa, Comanche and Apache Indians.—You will negotiate with these Indians for the cession of their entire reservation, taking into consideration, in case of cession by said Indians, the question of creating a new reservation for, or the allotment of lands in severalty to them, as indicated in the case of other bands of Indians hereinbefore referred to.

General Remarks


    It is proper here to state that while the Act authorizing negotiations provides for the extinguishment of the Indian title to all lands lying west of the 96th degree, no provision is made for the location and settlement elsewhere of the Indians occupying said lands. It will therefore be necessary in the event of successful negotiations with such Indians as occupy lands lying west of that degree, for the cession thereof, to provide new reservations suitable to the requirements of each band within the reservation now occupied by such band, or to provide for allotments in severalty within the reservation now so occupied or to provide new reservations, or for the allotment of lands in severalty in some other portion of the country lying west of that degree, or to provide for the removal of the Indians to lands east of said degree, and in the latter case negotiations for that purpose would be necessary with the Indians owning the lands lying east of that degree.
    It may also be said here that if the Commissioners shall find it impossible to secure a cession of all the lands lying weat of the 96th degree owned or claimed by any of the several nations or tribes, they may then negotiate for such modifications of existing reservations and claims as the said nations or tribes may severally agree to. Such negotiations, however, should not be had with the Cherokees in reapect of their claims to lands lying west of the 98th degree.
    You will observe that the 14th Section of the Act of March 2, 1889, requires that "any and all agreements resulting from such negotiations shall be reported to the President and by him to Congress at its next session, and to the council or councils of the nation or nations, tribe or tribes, agreeing to the same for ratification."
    Therefore, you will upon entering into agreement with any nation or tribe of Indians, submit the same to the council of such nation or tribe for its ratification.
    Full and complete minutes should be kept of all proceedings and transactions had with each separate tribe or nation, which with all papers, documents, &c., including any agreements negotiated after action by the proper council, should be forwarded to this Department for transmission to the President. Separate reports in triplicate should be made of the proceedings had with each nation or tribe.
    Should any question arise during the progress of your negotiations not fully covered by these instructLom, or upon which you have any doubt, the facts in relation thereto should be submitted to this Department with request for instructions.
    Authority is granted you to visit such other places not named herein, as may be necessary in the performance of duties.

Very respectfuUy,
Jno. H. Oberly
Commissioner.

(Maxwell)

APPENDIX


    On June 20, 1890, Belt with Noble's approval said of the Ponca reservation in the Indian Territory:
    "As the reservation was conveyed to the United States for the use and benefit of the Ponca tribe, I am of the opinion that every member, whether enrolled at the Agency in the Indian Territory, or at that in Dakota, is entitled to his share of the lands and of the money that may be derived from their sale, except as hereinafter stated.
    "By Act of March 2, 1889 (25 Stats., 888) each member of the Ponca tribe occupying a part of the old Ponca reservation, within the Great Sioux Reservation is entitled to allotments there, and to all the benefits conferred by that act. I do not think that those members of the tribe who elect to take the benefits of the Sioux Act, should be permitted to share in the Indian Territory reservation or in the proceeds of its sale, as they became entitled to such benefits by abandoning the said reservation. The benefits of that act are much greater than can be obtained from the reservation in the Indian Territory. I am strongly of the opinion that all who can do so, should remain in Dakota and believe that nearly all will do so. I also believe that those who are now located at the Agency in the Indian Territory are competent to make a valid contract for the sale of the reservation, and that those in Dakota need not be consulted in this respect.
    "Still I think provision should be made in any agreement that may be concluded whereby those who do not avail themselves of the benefits of the Sioux Act (which they must do, if at all, on or before the 10th of August next) shall be entitled to a full share of the lands and funds of the tribe in the Territory provided they apply for enrollment and allotments before the completion of the latter."
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