Testimony taken by the Committee on Indian Affairs - 1885
Testimony taken by the Committee on Indian Affairs
1885


E. C. BOUDINOT.

Washington, D. C., January 10, 1885.
E. C. BOUDINOT, recalled.
By the Chairman ;
Question. Colonel Boudinot, you were to furnish some papers this morning?—Answer. Yes, sir. This [showing a paper] is a copy of Chief Bushyhead’s special message to the council.
Q. Is it long?—A. No, sir.
The Chairman . If it is brief read it.
The Witness. Shall I read the whole of it?
The Chairman . Read all that pertains to this matter. If it all pertains to the lease you had better read it.
The Witness (reading) :

Executive Department
,
Tahlequah, May 2, 1883.
To the honorable the National Council, in extra session :
Gentlemen: Among the subjects-matter the exigencies of the situation require me to bring to your immediate attention, is the situation of affairs in the unsold and unoccupied portions of our lands lying west of 96 degrees, the portion occupied by the Osages, Kaws, Pawnees, Poncas, Nez Perces, Otoes, and Missourias, being in a condition in which the rights of all parties will soon be, in all probability, definitely settled. There remains lying west of Arkansas River upwards of 6,000,000 acres.
The Cherokee Nation has an unquestionable and undoubted possession of, and jurisdiction over, all the unsold and unoccupied lauds covered by her patent which conveyed it to her from the United States, and her authority over it is recognized under treaty.
As stated, this residue within the limits of the Indian Territory comprises a little over 6,000,000 acres, and lies west of the Arkansas River.


By Mr. Harrison:
Q. A little over, or less, than 6,000,000 ?
The Witness. A little over.

[Reading:] It is a region the greater portion of which is chiefly valuable for pasturage, and large tracts are fit for nothing else. From information derived from the highest authorities of the United States there is not much likelihood of other Indian tribes being removed to it, as the northern tribes justly protest against being sent hither. For grazing purposes it is steadily acquiring value, and it is important, until it can be disposed of for the best interests of the Cherokee Nation, that the profits or revenues to be derived therefrom should reach the highest equitable amount, with the greatest security, and that its benefits shalt belong to the whole people of the Cherokee Nation.
By a communication of the delegation, submitted herewith, you will see that the subject-matter has this winter been pressed on us by the authorities of the United States, and that the exigency requires prompt action, and I commend the whole subject to your careful consideration and action. I also inclose a copy of a letter of the Secretary of the Interior to the Commissioner of Indian Affairs, which was furnished me while in Washington. The Secretary of the Interior and Commissioner during repeated interviews urged the importance of prompt action. To prevent loss to the national revenue, to increase it, to reduce expenses of collection, to secure the tract from all abases, to increase its value, to prevent lawless and violent persons from trampling on our rights and taking the use of our property without adequate remuneration, and above all to act in such a manner as to secure the confidence of the Government of the United States and its needed protection as guaranteed to us by treaty, it behooves the Cherokee people to act wisely and discreetly. I am gratified to be able to state, as the letter of the Secretary of March 16 will show, that the authority of the nation to legislate in the premises, as guaranteed by treaties, is fully recognized at Washington, and will be respected.
I would respectfully present the following suggestions, which I have found to be in harmony with the views of the Interior Department :
  1. That the leases be to one or more responsible parties, in suitable divisions, the supply of water in each division to be duly apportioned so as to utilize the entire tract at a rate not less than 2 cents per acre, and that the leases be not less than one year or more than five years. The revenue to be paid at Tahlequah into the national treasury every six months in advance.
  2. An agreement embodied in the lease with each lessee, that should the rent not be promptly paid as agreed the lease to be straightway per-emptorily declared forfeited by the principal chief and released to other responsible parties unless satisfactory payments be promptly made, including all losses and tax during the interregnum by patties temporarily and unavoidably delinquent.
  3. No permanent improvements to be made on the lands leased, and only such temporary arrangements as will contribute to the fair and equitable execution of the obligations of both parties to the lease; and any erections as improvements, whatever they may be shall, by the terms of each lease, revert to and become an attachment and remain the property of the Cherokee Nation.
  4. Six months notice to be given to each lessee in case the lands, or any portion of them, shall be otherwise disposed of.
  5. Timber and other property of the national domain to be protected by the lessee, for the tracts grazed or temporarily occupied by him, which shall be embodied by the terms of the lease, and for which, as far as practicable, he shall be responsible.

The salines belonging to the nation and authorized to be leased under the provision of act of Congress approved August 7, 1882, to be exempted from the limits of any such lease or leases, and to be the subject of separate legislation at such times as you may think fit.
In reference to the important matter of the salines just mentioned, I deem it proper to inform you that only two selections were made last summer, and only one of them has been so far able to be connected with the Government surveys so as to definitely fix their metes and bounds.
It will, therefore, be necessary for your honorable bodies to authorize another survey to secure the third saline, and have their connections with the United States surveys definitely ascertained and marked, and that these salines be thus permanently secured to the Nation, and their exact location placed on the public maps on the records at Washington City.
I therefore submit these important matters, requiring immediate action, to your honorable bodies, for such action as you may deem proper.
I remain, very respectfully,
D. W. BUSHYHEAD
Principal Chief.


That is the message I referred to, gentlemen. The act which preceded this message is published, I think, in some of the documents before the committee, but I will have a copy here. It provides for the renewal of the lease after the expiration of five years.
I think, however, that the provision authorizing the renewal was stricken out by the last council.
Mr. Harrison. I think there is a copy of the act in some of the documents.
Mr. Bowen. I think it is in Senate Executive Document No. 17, Forty-eighth Congress, second session.
The Witness. I would like to make a statement. It has been generally supposed that I was instrumental in having this matter investigated, and am opposed to leases. I am opposed to leases, because they are in violation of the constitution of the Cherokee Nation, and in violation of the statutes of the United States. While I am not opposed to utilizing the land so that the Indians can get the greatest amount of benefit out of it, I do not believe it could be done legally in the way it has been done; and then on the ground that it was putting into the hands of a few men too much land. I think Congress should make some provision so that the lands could be utilized legally, but not in such large tracts. For instance, here are nine gentlemen of respectability and high standing, who have possession of six or more millions of acres of land, which, under the constitution of the nation, is common domain, and it is outside of the power of the council to authorize any such lease, as it violates the constitution.
Q. Could the United States Government make a lease?—A. I think Congress could give legally the authority to the Secretary of the Interior, or any other officer of the Government, to lease these lands.

By Mr. Harrison :

Q. Do you think the Secretary of the Interior could authorize an infraction of an act of the Cherokee Nation?—A. Yes, sir.
Q. Do you understand that there is full authority in the General Government to abrogate any provision in the constitution as to the treaty rights given to them?—A. Yes, sir.

By the Chairman :

Q. Under the existing law of the United States, and the constitution of the Cherokee Nation, is it your opinion that we have authority, without further legislation, to lease this land?—A. No, sir.
Q. Who has the authority?—A. It can be done by act of Congress.
Q. Then neither under your constitution or our laws, as they stand now, does the authority exist?—A. No, sir; that is my opinion.
Q. What objection do you see to the method of leasing to these nine men, to be sublet, as has been done here, to many others?—A. My objection is that the tracts of land are too large.
Q. Do you mean the sublettings?—A. No, the main lease; of course these men have control of the whole matter. They can sublease to one thousand men if they choose.
Q. Do you see any objection to leasing to these nine men, provided the terms were satisfactory?—A. If certain safeguards were placed upon the lease, I don’t see any objection.
Q. What safeguards are lacking?—A. There is an utter want of any law authorizing the lease.
Q. I am now inquiring as to the practical defects, if any, in the lease itself, supposing that it was authorized by law.—A. I should think the lessees should be required to give bond for the faithful observance of their contract, and the lease should become forfeited by the non-ful­filment of its requirements.
Q. Would not a failure to fulfill them forfeit the lease now?—A. It might be sufficient. The lease should be legally made, but I have not thought much about the mode in which it could be done.
Q. What is your opinion as to the rental?—A. It is too low.
Q. Was it too low at the time the lease was made?—A. Yes, sir; I think the lease was only made a little over a year ago last fall, if I remember right. Certainly the lands are worth more than 2 cents. If the lands were leased to responsible parties in tracts of from 50 to 100,000 acres, 5 cents could be obtained as easy as 2.
Q. What is your opinion as to the inducement to rent to a number of small holders?—A. It gives an opportunity to citizens of the nation to have stock ranges. I had an interest in a lease with .T. M. Bell, on which we had made some improvements, and had partly stocked. It was upon the land leased by these parties, and no compensation was ever offered to us, either by the Cherokee Nation or by these lessees. Our range was taken away without compensation.
Q. Are there any considerable number of Cherokee citizens who desire to become lessees?—A. Some fifteen citizens went over on the strip before the lease was made upon my advice, to establish ranges. The land was being overrun by irresponsible parties from Kansas, and thousands of stock were there without paying, and I thought the citizens of the nation should utilize the land.
Q. What, in your opinion, would be best for the Cherokee Nation, to rent this land to white people and have a rental to use just as they please, or to occupy it themselves individually?—A. I think the use of it themselves would have the best effect. I think the nation ought to reserve the right of its citizens to utilize the land.
Q. You think the nation ought to have given its own citizens the preference?—A. It should certainly not have excluded them entirely.
Q. As to the benefit to the nation itself, would it be better for them to have participated in the business themselves, or to take the rent of the white people ?—A. Of course they realize more by renting the land to the cattlemen; but there are probably fifty or one hundred citizens who would like to have from ten to fifteen thousand acres of that land.
Q. And pay rent for it?—A. Yes, sir; they would pay 5 cents an acre for the privilege.
Q. Was any such sentiment made known to the council?—A. I do not know; I think the people were taken by surprise. Mr. Miller was somewhat mistaken when he said the lease was made with the approbation of the people. I would like to show the state of feeling before the lease was made. I have here an article from the "Chieftain" of November 16, 1883, which reads as follows :

The Cherokees and other tribes who have made or contemplate making leases of their lands for grazing purposes to wealthy corporations in the State should have intelligence enough to know that they themselves are aiding in bringing about a state of affairs that will necessitate legislation by Congress which will not be favorable to the preservation of their rights. Nothing more than a pretext is wanted to bring about this result, and if these leases are approved by the Department of the Interior it will be furnished by the herders, the horses, the interminable miles of wire fencing and other property of citizens of the United States that will become fixtures in the Territory, without law, without order, and without organization. If the voice of reason, of patriotism, and even of self-interest, could be heeded in the haste to grab the mess of potage tendered them for their birth-right, they would see that this valuable trust could and should be kept within their own hands and under their immediate control. If cattle and sheep and horses and goats must be introduced into the country to graze on our native grasses let it be done by those amenable to our laws, under well-matured restrictions and regulations devised and adopted by our national council.

By Mr. Ingalls:

Q. Who was the editor of that paper?—A. William B. Ross was the editor. I simply read that article to show that Mr. Miller was mistaken.

By the Chairman :

Q. How prevalent was that sentiment?—A. I think it was quite preva­lent.
Q. How long was the matter under consideration?—A. For only a very few days. The council met in May, I think, and adjourned along about the first of June.
Q. What has been the sentiment since?—A. I think it is less favorable.
Q. What is the general feeling in reference to it?—A. I could not state the general feeling; I only know of the sentiment of some of the most intelligent people of the nation, and they are opposed to this manner of leasing. They think it is too much of a monopoly.
Q. Does the Cherokee Nation want to dispose of this land to the United States?—A. I think there has been a proposition to that effect. I believe they are willing to sell if they can get what the land is worth.
Q. Do they recognize the appraisal made under Mr. Hayes’s administration?—A. They think that is below the value. This land was appraised at?7.49 cents per acre. The Pawnees received 70 cents per acre for their land. The Nez Perces, the Poncas, the Otoes, and Missourias also received only?7.49 cents per acre. The Government has paid three hundred and four thousand and some odd dollars in excess of the value of the lands disposed of at the price fixed by the President, which the Cherokee Nation owes to the Government now for the lands lying west of the Arkansas River, which is shown by the Public Document 19, Forty-eighth Congress, second session.
Q. Do these Indians recognize that appraisal as binding upon them?—A. I suppose they have to.
Q. Is it not stipulated that the appraisal should be made only under a failure of the parties so authorized to make the appraisal to agree upon a certain amount?—A. No, sir; I do not think the Government of the United States has fulfilled its obligation under the treaty in this respect. I am not sure that any binding force is to be given to the appraisal, unless by act of Congress.
Q. Have the authorities of the nation recognized that appraisal, in conformity with the provisions of the treaty?—A. They have recognized it by receiving the money.
Q. A part of this has been at the rate of 70 cents per acre, has it not?—A. That was for the lands of the Pawnees. That was by special statute.
Q. Do you know anything about the manner in which this lease was obtained that can be criticized in any way?—A. No, sir.
Q. Do you know of anything wrong being done?—A. No, sir, except as to the policy. That is all I know, sir. As far as I am personally informed, I know nothing of any improper methods having been used.

By Mr. Gorman.

Q. Where do you reside?—A. In Fayette, Ark.
Q. What is your profession?—A. I am a lawyer. I also have a place in the Cherokee Nation.
Q. What time do you spend with the Cherokees?—A. When I am in the West I am probably there a quarter of my time. Mr. Bell and I occupied a range in the Cherokee Strip.
Q. Where was the range in which you and Mr. Bell were interested situated?—A. On the the Kaskaskia River or Creek. Some 6 or 8 miles west of the Arkansas River, and about 10 miles below Tovola.
Q. Under what arrangement did you occupy it?—A. It is as all Indians occupy their lands. It is all common property.

By the Chairman :

Q. You and Mr. Bell simply went there and took possession?—A. Yes, sir; we had some business relations together, and he took a half interest in this range with me.
Q. What was the extent of the range?—A. We had not fenced, sir, and had only a few corrals for our cattle. We had nobody to interfere with us at that time for a distance of 15 or 20 miles.
Q. When did you take possession of this range?—A. About 1881 or 1882, I think.
Q. Did you have a lease?—A. No, sir; we just went on as on common domain.
Q. What did you do from the time you took possession up to the time this lease was made to these other parties?—A. Nothing, except to prepare to place cattle upon it. I was negotiating for myself with some friends to stock It. We would have been able to do so had it not been for this lease.
Q. What amount of improvements had you put upon it?—A. Very small. I believe that $150 or $200 will cover them all.
Q. Were you aware that there was a board of arbitrators appointed by this association for the purpose of considering the claims of all those who occupied that strip at the time, or claimed improvements there?—A. No, sir; I was not aware of it. I had heard nothing at all about it until I heard the statement of one of these gentlemen here.
Q. Then your claim for improvements was never presented?—A. No, sir.
Q. Do you understand that the constitution and laws of the Territory give the Cherokee Nation a local self-government?—A. Yes, sir; so far as it does not interfere with an act of Congress that existed at the time, or such as may pass.
Q. Do you understand that that extends to the control of the land in the Territory?—A. No, sir.
Q. Who has control of that land?—A. The Government of the United States, and we are prohibited from selling the land except to the United States.
Q. But the occupancy of the land until thus disposed of to the Government?—A. That is in the Cherokees, and is controlled by the local Government.
Q. Do you understand that it is to be controlled by the local Government?—A. Yes, sir; I suppose it is. The constitution says the land shall be common property.
Q. If the land is common property is it inconsistent with that provis­ion for the common owners to lease it and take the proceeds?—A. I suppose it is, sir. I think if they could lease it for five years they could lease it for ninety-nine years.
Q. If, instead of occupying it in common, they take the rental and use it in common, is that inconsistent with the provision of common owner-ship?—A. Yes, sir; I think so.
Q. Why?—A. Because it deprives the individuals from the common use of the public domain. For instance, I am now an intruder upon the Cherokee Strip, which has been leased, unless I have permission of the man who leased it. The constitution of the Cherokee Nation says the public domain is common to me as well as to others, and if I make improvements upon this land now the improvements can be taken without due process of law.
Q. Your theory is that the law gives you the right to an exclusive occupancy of a locality that does not interfere with somebody else’s lo­cality?—A. Yes.
Q. But that is not very exclusive, is it?—A. I mean that the law forbids persons from putting in improvements within a quarter of a mile of another person.
Q. That is a law, not a constitution?—A. No, sir.;
Q. Suppose you made another law which says you may do that, would it be a violation of your organic law?—A. I do not think it would.
Q. They made a law that they would lease this common property and take the proceeds and use them as common property rather than occupy the land themselves, and that, you think, is a violation of the constitution?—A. Yes, sir, I think so.
The Chairman. Well, sir, we have your views, and very likely they are sound.
By Mr. Gorman:
Q. Colonel Boudinot, you said the price was not sufficient; how do you get at that? Have other lands in that vicinity been renting, at that time, or about that time, for more money?—A. I do not know what the prices were at that time. In Texas, I understand, they are higher now than they were a year ago, but I suppose anybody from Texas can tell what the prices were for grazing lands at the time this lease was made. I only know what I have heard and seen in the prints, that lands were renting for much more than that at the time. However, these gentlemen who have testified know more about that than I do. I would not venture to contradict Mr. Hunter, or any of these gentlemen, about that matter.

By Mr. Ingalls :

Q. The political powers of the Cherokee Nation are exercised by the legislature, which is recognized by the Cherokees as the organ of their laws?—A. Yes, sir.
Q. The legislature consists of an upper and lower house?—A. Yes, sir.
Q. How are they chosen?—A. They are chosen by the people.
Q. When and how is the presiding or principal chief or executive designated?—A. He is elected every four years.
Q. And the power of the Cherokee Nation is exercised, if I understand you, through its legislature, with the consent of the executive?—A. Yes, sir.
Q. There has not been a dispute among the people about that matter, has there?—A. No, sir.
Q. I understand you to say that these leases were executed with a decision of the legislative body and approved by the executive?—A. Yes, sir.
The Chairman . Colonel Boudinot read the message of Bushyhead, the principal chief, to the Cherokee council, and referred to a law which was passed in conformity to the message.

By Mr. Ingalls:

Q. Is there any division into political parties as in the States?—A. Yes, sir.
Q. Has this question of the lease of the common lands of the nation assumed any political aspect?—A. I think so.
Q. What are these political subdivisions based upon ? Are they based upon the race question?—A. Partially so; there is a portion called full-bloods.
Q. These are the ones who have never married or mixed with the whites?—A. They have no mixture of white blood.
Q. What proportion of full-bloods is there?—A. About 12,000 of Cherokee blood, full and mixed; about 4,000 are entirely of Indian blood; 8,000 are mixed.
Q. Is not the political division about in that proportion?—A. I do not think, so, sir.
Q. How was this $300,000 which was recently paid into the treasury of the Cherokee Nation distributed?—A. It was paid to those of Cherokee blood only.
Q. That excludes some parties it?—A. Yes, sir; it excluded five thousand.
Q. You say there is no division upon the basis of race at all?—A. No, sir; a great many full-bloods are opposed to leases.
Q. Is the chief a full-blood?—A. No, sir; the chief is a mixed-blood.
Q. Had not this question of the lease of the land been the subject of agitation and discussion among your people for a considerable time before the lease was made?—A. I do not think so. It was a vexed question how to utilize the lands west of the Arkansas River.
Q. I understood you to make some remark about the land being used in common, and you afterwards said that there was a legislative enactment, or a custom, by which individuals could obtain exclusive rights to the land?—A. Yes, sir; as long as they occupy it.
Q. It is not true, then, that they were held in common?This was true, sir, only of those lands not occupied at all—they were held in common. But there was recognized by the legislature a, custom or right of a person to the exclusive use of the land; but when an individual thought fit to segregate any portion of the land his right was absolute as against anybody else.
Q. Did this right descend to his heirs?—A. Yes, sir.
Q. Had he the right to dispose of it?—A. He could sell the right of possession and improvements.

By the Chairman :

Q. Could he give possession which would be exclusive?—A. He could sell his rights, whatever they were.
Q. What was the prospective or recognized area an individual might acquire by occupancy?—A. None, until recently, when a person was forbid from taking more than 50 acres for pasture purposes.
Q. What was the date of that law?—A. Since this lease was made.
Q. What proportion of land in this lease’s area has been reduced to possession by individual occupants?—A. In this strip of 5,500,000 acres I do not suppose that there are over fifteen or twenty Cherokees who are occupying it in any way. That is about the extent of their occupancy, I think, which is very small.
Q. Does the Government receive any revenue from the Cherokee occupants?—A. No, sir.

By Mr. Slater:

Q. You have courts in the Cherokee Nation?—A. Yes, sir; we have a system of courts.
Q. Does their jurisdiction extend over the leased land?—A. Yes, sir.
Q. What is the difficulty of their prosecuting their rights in these courts?—A. Simply because the courts feel themselves bound by the act of the council.

By Mr. Harrison:

Q. There is no court that you can put a question into while a white man is a party?—A. The United States court at Fort Smith has criminal but not civil jurisdiction over the Territory. It has no civil jurisdiction anywhere in that Territory.

By the Chairman:

Q. So, if I should knock down a white man—
Mr. Harrison. Well, that would not be civil.
The Witness. A criminal offense would be taken to Fort Smith.

By the Chairman :

Q. Any civil injury by a white man upon an Indian, or an Indian upon a white man, could be done with impunity so far as that tribunal is concerned?—A. Yes, air.

By Mr. Gorman :

Q. Colonel, there have been rumors that this lease was obtained by corrupt means?—A. Yes, sir.
Q. I understand you have no personal knowledge of it?—A. No, sir.
Q. What have you heard from persons opposed to the lease?—A. I have heard that money was used with members of the council to prevail upon them to vote for the lease.
Mr. Gorman. Please give us a full statement upon that point.
The Chairman. Give us the sources of information, so that we can reach the parties.
The Witness. I do not remember who told me, but several persons stated that money was paid to a Mr. Rogers.
Q. He was the author of this bill?—A. Yes, sir.

By Mr. Cameron :

Q. He was a member of the council?—A. Yes, sir. This; rumor I heard, of course. I do not know that it was so; I simply heard it.

By Mr. Harrison:

Q. Can you tell who told you so?—A. I do not know that anybody said they knew it, but I was told that the amount so given was $4,000, I think.
Q. Do you know who those persons were who told you that?—A. Well, as they did not say they knew it to he so, I do not think that it would be fair to bring their names before the committee. It might put them in a bad situation.

By Mr. Cameron:

Q. Were they Cherokees?—A. Yes, sir.

By the Chairman:

Q. Is Mr. Rogers a Cherokee?—A. Yes, sir.
Q. A full-blood?—A. No, sir; he is a mixed-blood.

By Mr. Gorman:

Q. Was that the only case you heard of?—A. Yes, sir; I do not think I heard of any other member of the council receiving money. I believe Mr. Lyon received money, but simply as an attorney.
Q. Was he a member of the council?—A. No, sir; he was not a mem­ber of the council, he was a lawyer by profession, and a white man who had married there. He told me he drew up the lease himself and was in the employ of the lessees.

By Mr. Harrison :

Q. You understood these men who talked to you to have no personal knowledge, but merely to repeat rumors?—A. Yes, sir.
Q. And you think it beat not to give their names?—A. Yes, sir; because they would not be able to give any testimony.
Q. Their testimony would not be valuable?—A. No, sir; I understood them simply to give these rumors which were in circulation, and not from their personal knowledge.
By Mr. Gorman:
Q. Did you ever hear of any member of the legislature having an interest in the lease acquired since the lease was granted?—A. I do not know of any, sir.
Q. You have never heard of any?—A. No, sir.
Q. You have never heard of any member of the council being interested in the lease?—A. No, sir; I do not recollect any now.
Q. Did Mr. Lyon tell you how much money he received for his services?—A. No, sir; he did not.
Q. You never heard how much?—A. No, sir.

By Mr. Cameron:

Q. You say you understood Mr. Lyon was acting in his professional capacity?—A. Yes, sir.
The Chairman . Mr. Peck, the attorney for these gentlemen, furnishes me in a pamphlet what he says was the existing law of the Cherokee Nation before anything was done in reference to the lease, and then he furnishes me what purports to be an amendment to that law, which gives the authority which you have indicated. If you will be kind enough after going off of the stand to see whether that is what you mean, we will consider it. Please take that and let the committee know about it.
The Witness. Yes, sir; that is correct. The first is the old law and the second is the new law.
The Chairman . We may treat them as such?
The Witness. Yes, sir. I would like to state in justice to Mr. Peck, the attorney of these lessees, that about a year ago I had a talk with him in connection with these leases, and he told me that if I would designate where my lease was he would lay it before the association, and they would do the fair thing by me. But the matter has never been brought before the association.


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