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Protest Letter From Cherokee Delegation
|Washington D. C., January 6, 1885.|
| Sir: We find that the committee of which you are chairman with an inquiry as follows:|
"Resolved, that the committee on Indian Affairs be instructed to inquire what leases of lands in the Indian Territory for grazing or other purposes have been made by the tribes of Indians therein, the number of acres embraced by each of said leases, the terms thereof, and the persons, corporations, or associations named therein as lessees. Also, that the committee inquire as to the circumstances under which said leases were made, and the means used for obtaining the same, whether said leases were authorized by existing legislation, or are conducive to the welfare of the Indians in said Territory. That the committee have the power to send for persons and papers, and shall report by bill otherwise.
An examination of the debates shows that the purpose of the examination was to ascertain(1) whether these leases or grazing privileges had been obtained or exercised in violation of existing law, and (2) whether they were to the interest or prejudice of the parties concerned. Incedently, whether improper means had been resorted to in order to obtain them.
As the representative of the Cherokee Nation, sent here by her constitutional authorities, we shall confine ourselves to the Cherokee lease or permit. The Cherokee Nation is a body politic, the exact measure of it's powers being a written constitution, which has been of public record for more than fifty years. Its rights, recognized by the United States, are to be foundin her treaties with the United States, the language of which best measures them, and in the decisions of the Supreme Court, where they were controverted. These began with the treaty of November, A. D. 1785, and ended with the treaty of April, 1866, and are now all in force save wherein they modified each other. By constitution, treaty, and custom, the people of the Cherokee Nation transact their business with the United States through the "Cherokee Nation." Under treaty, the Cherokee Nation makes and executes all needful laws to govern the persons and property of her own people. (See treaty of 1835, article 5.) Her courts have exclusive jurisdiction in all cases where Cherokees and those adopted by them are the only parties, "and when the cause of action arises in their own counry." (See treaty 1866, article 13.) The only conflicting jurisdiction is a limited criminal jurisdiction in cases arising between Cherokees and citizens of the United States.
This Cherokee Nation, as a body politic, owns the lands now occupied by them, the evidence of title being a patent from the United States, made according to treaty, covenant, and purchase. Under authority of the act of May, 1830, the Government of the United States divested these lands of the Indian occupancy title, having provisionally purchased the French title to Lousiana, and under proper authority conveyed to the Cherokee Nation. The assurances given by Presidents of the United States, including Jefferson, Monroe, Jackson, and Van Buren, to enduce them to remove west of the Mississippi and beyond jurisdiction of any State and Territory, were that they would never be subject to such jurisdiction, and that in exchanging a mere Indian occupancy title for a title bargained for and granted by the United States, that their homes would be perpetually secured to them. This was the publicly expressed purpose, and the question is, how far the United States exectuted its agreements.
The granting clause of the patent reads:
"Therefore, in execution of the agreements and stipulations contained in the said several treaties, the United States have given and granted and by these presents do give and grant unto the said Cherokee Nation the two tracts of lands so surveyed, and hereinbefore described, containing the whole 13,374,135.14 acres to have and to hold the same together with all rights, privileges, and appurtenances thereunto belonging to the said Cherokee Nation forever."
The Supreme Court, in Holden vs. Joy case (17th Wallace, page 245), says:
"Possesed as the United States were of the fee-simple title to the neutral lands, discharged of the right of occupancy by the Osage Indians, it was clearly competent for the proper authorities of the United States to convey the same to the Cherokee nation."
Referring to a clause inserted in the patent that in case the Cherokee Nation became extinct or abandoned the same, the land should revert to the United States, the Supreme Court in the same case (page 250), says:
Strong doubts are intertained 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 the agreed to convey the lands in Fee-simple title, and it may well be held that if that condition reduces the estate to less than a fee it is void. In the case of the United States vs. Ben Reesse, in the United States court for the western district of Arkansas, at the May term thereof, A. D. 1879, it was decided, among other things:
"But it may be asked how could this title be held in fee when the word heirs was not used in the grant. At the common law, by a rule which in this country is purely technical, the word heirs is necessay. But this rule did not apply to grants to coperations aggregate. The fee passed without the words heirs or successors, because in judgement of law a corporation never dies, and is immortal by means of perpetual succession (4 Kent, 7). This tribe of indians may be regarded under the law as a corporation agregate. It has been claimed by some that this title obtained under the treaty of 1833, could not be a fee-simple title because it was taken under the general law prohibiting the alienation of Indian lands, and that this was as such a restriction upon the title as to take away its fee-simple character. But this ast was not in existence until 30th of June, 1834."
"The United States agrees to possess the Cherokees and to guarantee to them forever, and that guarantee is hereby pledges of 7,000,000 acres of land. The United States agrees to possess what? Why, the land described. And to guarantee what, and for how long?Why, not the possession, but the land and forever."
"Now, the question arises, what kind of title does these several treaties and this law of 1830 give the Cherokees to their lands? If it were not for the treaty of 1835, the treaty of 1833 is broad enough in its terms to convey a fee simple title. This treat is subsequent in date to the act of 1830,which contained the clause that the lands should revert to the United States if the Indians 'become extinct or abandon the same.' There is no limitation to the title conveyed by the United States of 1833. If such treaty is inconsistent with the law of 1830, it repealed so much of it as was inconsistent. But [adds the United States Judge] suppose the condition contained in the patent is valid. Let us see what effect that has upon the title. The condition is, that the lands revert to the United States if the said Cherokees become extinct or abandon same. Now, the first of these conditions is one which would be silently engrafted on the grant independent of any express words. When there is a grant, and a guarantee and his heirs become extinct, the land escheats to the state whether the grantee be an individual or a body of individuals.
"Here is a grant made to the Cherokees, having conditions which may never happen, and which in the face of facts that the Cherokee Indians are not likely to become extinct, and that they are now occupying the lands with no intention of abandoning the same, there is only a remote possibility of either hapening. In such case there is not an absolute right of reversion in the United States, but only a possibility of reversion."
"This indian title being a base, qualified, or determinable fee, with only the possibilty of a reversion, and not the right of reversion in the United States, all the etate is in the Cherokee Nation of Indians."
There, therefore, can be no denial from a fair and candid mind that the United States intended to give a fee-simple title, and gave it.
There is another question. The United States recognized a jurisdiction over them as the Cherokee Nation when they were removed and before. President after President had given them the assurance that they should not be subject to the laws of the States and territories, but be free to to legislate for and manage all the affairs of their own people and property. The hon. J. R. Poisett, then Secretary of War, setting this forth, said:
"I would recommend as the first step that the tribes should be encouraged to adopt a system of self-government adapted to their wants and condition, with which there should be as little interference on our part as possible."
The treaty of 1866 provides that the courts of the Cherokee Nation shall have exclusive jurisdiction in all cases where the parties are native or adopted citizens, or when t ecause of action rises in their own country. For fifty years, under this system and a government of their own, they have steadily grown and flourished. Of all the Indian tribes still under the care and management of the Government, none of them can be cited who have advanced so rapidly, triven so well, or managed their affairs more prudently. Their government conducts all its business with the same regularity as other Western Territories. Her elections are peaceable and faily held. The maintain two high schools, and upwards of one hundred schools in which the English language is the medium, and have other charitable institutions.
The Supreme Court in more than one decision has declared her government possessed of clearly defined powers, and notably in the Mackey case; that it is similar to a territorial government; the only limit to whose powers are the concessions and restrictions of treaty.
On what pretext, then, is this claim to interfere with her action? Among her lands not disposed of she has 6,000,000 acres at present detached by tracts now occupied by other tribes from her main territory, lying west of the Arkansas River. These lands have been rapidly rising in value for some years past, and are chiefly, and almost exclusively valuable as pasture lands. She has justly endeavored to derive revenue from them. She first tried to do so after a manner not at all new, taxing graziers so much per head. The first year, with great exertion, she only collected a few thousand dollars. The second year about $18,000; the third year about $22,000; the fourth year about $42,000; the three monts thereafter , and up to the period the lease went into effect, $10,000.
Under an act of the Cherokee legislature, and accordng to its precise terms, grazing privileges were granted for five years to a company named in the act, and according to its precise terms, for $100,000, to be paid semi-annually in installments of $50,000 in advance, in Tahlequah, to the treasurer of the Cherokee Nation. One hundred and fifty theousand dollars has already been paid, and is now in the Cherokee treasury awaiting the action of her legislature, and $50,000 more is to eb paid in a few months. By the terms of the lease no permanent improvements are allowed; failure to fulfill any condition works forfeiture, At the termination of the lease all wire fences and everything else are the property of the Nation, and are so now, virtually, under its terms.
It has been said that we leased for to small an amount. To this we answer that we did the best we could, and are now doing three or four times as well as we did before our present agreement. Why did these lands not produce before? Simply because there were a large number of lawless persons who for long years persisted in grazing on our lands without paying for them. Our lands have always been grazed, but they did not pay us. Who are the complainents? Men who wish, lawlessly, to take our property without compensating us for it, adn men who failed to get leases. Granted that the leases are worth more to-day. When leased again, if we still own them, we hope to double or treble the amount. The pretense of monopoly is absurd. Not one of all these parties has any right there except as he pays for it.
Nor is this leasing privilege, granted under law of our legislature, in conflict with any statute. Even on lands held by indian occupancy title, the Indians are allowed to make agreements for grazing. The section against leases is a limitation against acquiring lands held for occupancy by an Indian tribe, and to which the United States claims exclusive right to purchase. There might, and whenthe statute was enacted leases were made for ninety-nine years, and in one case in the Choctaw Nation, east of the Mississippi, for a hundred and ninety years, not for grazing purposes. Our grazing contract does not interfere with any such right, and even if the United States wished to purchase another tract of it for Indians, by the very terms of our agreement such portion shall be excepted from it.
What, then, is the purpose of this movement, which, if it amounts to anything, would amount to stripping the Cherokee Nation of the power to manage her own business, which under her treaties with the United States she has wisely done for half a century. Those who clamor against us are our enemies, who would like to rob us of our property, and who cannot or will not recognize that it is aour property. Their charges against the ability or integrity of the Cherokee government are false as they are flagitious, and made by interested parties. There is no human government but may make mistakes. But surely the history of the Cherokee government challenges your sympathy and support rather than your interference.
We, therefore, with the highest respect, protest against all steps looking towards stripping the Cherokee government of any of her powers conceded by treaty. We are sent here specially instructed to protest against and resist all such attempts, and herewith present this to you, and ask its careful consideration.
| H. T. Landrum.|
Rich'd M. Wolfe,
Wm. A Phillips,
SpecialAgent and Council
| Hon. Henry L. Dawes,|
Chairman of the Committee on Indian Affairs, United States Senate.