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American Indian and Alaskan Native Documents in the Congressional Serial Set: 1817-1899

7-3-1890

Message from the President of the United States, transmitting an

agreement between the Cherokee Commission and the Iowa

Indians in the Indian Territory

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S. Exec. Doc. No. 171, 51st Cong., 1st Sess. (1890)

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51ST CoNGREss, }

~ENATE.

1st Session.

Ex.Doo.

{ No. 1'71.

MESSAGE

FROM THE

PRESIDENT OF THE UNITED STATES,

TRANSMITTING

An agreement between the Cherokee Commission and the Iowa · Indians in

the Indian Territory.

JULY 3, 1890.-Read, referred to the . Committee on Indian Affairs, and ordered to

be

printed.

To the Senate and House of Representatives :

I transmit herewith, as required by section 14 of the act of March 2,

1889, an agreement concluded on the 20th day of May last between the

Commissioners on behalf of the United States, commonly known as the

Cherokee Commission, and the Iowa Indians residing in the Indian

Territory.

A letter of the Secretary of the Interior, which is accompanied by

communications from the Commissioner of Indian .Affairs and the Assistant .Attorney-General, is also submitted.

These papers present a full and clear statement of the matters of

fact anfl ·questions oflaw which Congress will need to consider in passing upon the question of the ratification of the agreement which is sub.

mitted for its consideration and such action as may be deemed proper.

BENJ. HARRISON.

EXECUTIVE MANSION,

July 2, 1890.

DEPARTMENT OF THE INTERIOR,

Washington, June 27, 1890.

The PRESIDENT:

On the 2d day of June there was received at this Department the

inclosed 'communication to you, signed by the members of the Cherokee

Commission. It was accompanied by the articles of agreement inclosed,

dated May 20, 1890. The fact of the arrival of these documents was

made known to you without delay; but as there was a serious question

relating to the validity of the contract, because the members of the

Iowas of Kansas and Nebraska had not signed, the papers have been

detained, pending such investigation as would enable me to form a

satisfactory conclusion on the point presented.

It may be best first to present an abstract of the agreement itself,

and the statistics relating thereto, and afterwards present for your

2

'

IOWA INDIANS IN INDIAN TERRITORY.

consideration the question whether the contract should be ratified

without the signatures of the Iowas of Kansas and Nebraska.

The agreement itself provides for a cession by the Iowas of all the

reservation in the Indian Territory set apart by Executive order

August 15, 1883, saving to each Indian an allotment of 80 acres, to

conform to usual survey, an Indian having improvements gaining a

preference therefor; all to be made at cost of tlle United States and

under the rules of the Secretary of the Interior by speciaJ agents, and

within sixty days after the special agents shall appear on the reservation and give notice. If any one fails to make his or her selection the

agent shall make the selection for the Indian. ~~And when all said

allotments are made and approved then the residue of said. reservation, except as hereinafter stated, shall, as far as said Iowa Indians are

concerned, become public lands of the United States." (Art. III.)

Patents are to issue holding the allotments in trust for twenty-five

years, not subject to tax, etc., and thereafter in fee to Indians, their

heirs or devisees. Ten acres in ·square form, including church, graveyard, and school-house at Iowa Village, are reserved. When allotments

are made the Commissioner of Indian Affairs is to expend $24,000 for

improvements (specifically enumerate<1), and the United States will pay

per capita $3,600 per annum, semiannually for first five years; $3,000

per annum for second five years; $2,400 per annum for third five years;

$1,800 per annum for fourth five years; $1,200 per annum for fifth five

years. These payments are regulated somewhat by the agreement.

In Article VIII it is provided that this "shall not affect any other

claim of the Indians," nor ~'any interest that said tribe or its members

may have in any reservation of land outside of the Indian Territory,"

nor annuities.

The chief, Tohee, being blind, is given $350.

In supplemental articles signed by the Uommissioners only it is provided the trust to allotted lands may be continut:'d at the end of twentyfive years for another five years, and the chief may select an additional

ten acres, in square form, for use of tribe in common. These supplemental articles are altogether in favor of the Indians, and are sufficiently signed by the Commissioners only. The agreement is in due

form.

There are eighty-eight persons on the reservation. Twenty-tllree of

the males are over eighteen years of age, of whom thirteen have signed ..

Of less than fifty, male and female, over eighteen years, thirty-four have

signed. Of entire population of eighty-six men, women, and children,.

signatures have been obtained of those over eighteen years, wh0 represent sixty-two.

The reservation has 228,418 acres; the allotments will contain 6,890·

acres. The residue, 221,528 acres, becomes the land of the United

States. The amount agreed to be paid in the aggregate is $84,350, or

38 cents an acre. (See commissioners' report.) The commi~sion remarks that it was aware of the very limited extent of the Iowas' real

title and interest in and to said lands, but their claim is "absolute

ownership," and these negotiations took place with these different views.

existing. The above was deemed the most satisfactory conclusion that

could be reached. By reference to the act of March 2, 1889 (25 Stats.,

1005) under which this commission acts, it will be seen that you are

required to report the agreement 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.

lOWA INDIANS IN INDIAN TERRITORY.

3

In the present instance there is no council for the Iowas making this

agreement, as will be seen by the report of the commissioners accompanying the agreement. It is there written:

The Iowas have no government that we are aware of. They have a chief and he

has some advisers of his own selection, but no one seems to have authority to control

or direct. In conference with the comi:nission any Indian seemed to ha\'e as much to

say and with as much authority as the chief.

The act of Congress necessarily deals in general cbrections for cases

as numerous and varied as are therein embraced, and I think if it is to

be ratified at all by the Intlian8 it must be by the same Indians that

have signed it.

THE PRINCIP ~L QUES'l'ION OF LAW.

Besides the Iowas who signed this agreement, there are others yet

remaining on the reservation in Nebraska and Kamms. These number

166 and their reservation, subject to allotment and as hereinafter more

particularly stateu, contains 16,000 acres. Allowing for allotments

11,620 acres, which is 70 acres for each person (the usual estimate),

there will remain for sale there 4,380 acres, deemed now to be worth

$25 an acre, equal to $109,500.

This reservation was established by treaty September 17, 1836 (7

Stats., 511), embracing 200 sections of land. By treaty May 17,1854 (10

Stats., 1069), the Iowas ceded to the United States all of this reservation

except a portion then described, and which, as the treaty said, should be

the future and permanent home of the Iowas. By treaty March 6, 1861

(12 Stats., 1171),they ceded to the DnitedStates,foruse ofthe Sacand

Fox tribes of the Missouri, a portion of the reservation as reduced by

the treaty of 1854, and provided the remainder should be for the exclusive use of the Iowas.

By certain articles in the treaty (1854) it was provided that the lands

ceded thereby were to be sold and the proceeds paid to the Iowas, and

the reserved land was to be assigned to each person or family under

direction of the President, who was also authorized. by and with the

consent of the Senate to "adopt such policy in the management of

their affairs as, in his judgment, may be most beneficial to them; or Congress may hereafter make such provision by law as experience shall

prove to be necessary."

In the early part of the year 1883 there was much discussion among

the Iowas in Kansas and ~ebraska about going to the Indian Territory. In 1878-'79 a portion of the tribe had wandered south, and on

August 15, 1883, the President established the reservation in the Indian Territory for the permanent use and occupation of the Iowa and

such other Indians as the Secretary of the Interior may see fit to locate

thereon. (Report Oommissi01:er Indian Affairs 1883, p. 223.) The number of the whole tribe was at this time about 220, and only 88 of those

were or have been on the Indian Territory reservation.

.

By act of March 3, 1865 (23 Stat., 351), which was assented to by the

Sac and Fox and the Iowas in open council of each tribe, the Secretary

of the Interior was required to have surveyed and sold at public sale to

those intending to be actual settlers the remainder of the reservations

of these tribes in Kansas and Nebraska. The improvements were to

be sold separately. The act fixed the minimum price of the land at $8

an acre. This act provided, also, that any member of the Iowa tribe

residing at its date on these lands and having improvements thereon

might elect to remain, and such land should be withheld from sale and

4

IOWA INDIANS JN lNDIAN TERRITORY.

the Secretary of the Interior should issue him or her a certificate therefor; and this was to be in full satisfaction of his interest in the reservation or the money realized therefrom. Tbe Indians were to be paid for

their improvements, a.nd the proceeds of the United States improvements and of the land were to be deposited in the Treasury and the

income expended for the benefit of tbe Indians. The most important

provision of this act in connection with the present question is section

5, which reads as follows:

That the Secretary of the Interior may, with the consent of the Indians expressed

in open council, as aforesaid, ~.;ecure other reservation lands upon which to locate

said Indians, cause their removal thereto, and expend such sum as may be necessary

for their comfort and civilization.

The President was authorized to issue patents to the tribes for the

reservation selected under the foregoing· prO\""ision, and when~ver allotments were desired on the roservation provided for they could be made.

An appropriation of $10,000 was: made for the purpose, and the Secretary of the Interior authorized, upon consent in open council, to remove the Iowas residing in Kansas and Nebraska to the reservation

secured. The remarkable fact is that nothing has been done under

these careful provisions. No survey of the lands, no public sale, no

allotments, and no removals have occurred. The Iowas in Kansas and

Nebraska have staid there substantially; and those in the Indian Territory have gone on and finally agreed to sell their interest in that

land, retaining allotments and all other claims. Under th~ present administration orders have issued for the completion of this survey with

a view to the proper allotment and sale in Kansas and Nebraska.

By act of January 26, 1887 (24 Stats., 361), the third section of tnat

of 1854 was amended so that each Iowa Indian taking land in tbe Kansas or Nebraska Reservation would be charged with it at its fair valuation, in part satisfaction of his interest in that reservation, or the proceeds thereof, but his right to share in other funds and credits of the

tribe should not b~ impaired thereby.

On July 31, 1885, by the Commissioner of Indian Affairs, under approval of the Acting Secretary, the Iowa Indians were informed that if

they so desired they could be located on the present Iowa Reservation

in the Indian Territory, and that a patent therefor would be made to

the Iowa tribe, less a sufficient quantity for the Tonka was then located

there. To this the Iowas assented, but they have done nothing more.

On August 15,1889, the Acting Secretary wrote the Commissioner that

it was not necessary for the Iowas in Kansas to remain there until the

allotments there were made to those desiring them, but some provision

should be made for the removal of those wishing to go to the Indian

Territory. The Commissioner, November 15, 1889, advised the Indian

agent relative to the removal that no further action should be taken in

the mattrr until the allotments have been made or until further instructions should be received.

It thns appears that the Iowas had alternatives presented to them

u.wn the cession of their lands under act of 1885; they could take allotments on lands as occupied by each, or they could go to the reservation

to be secured for thern. If any one took his allotment claim, he was

not to be also entitied to participation in the new reservation. This

reservation was to be secured by the Secretary, consented to by the Indians ; they were to be removed to it, and a patent was to be granted by

the President to the Iowa tribe.

The reservation now under consideration was created by executive

order before this act of 1885-that is, August, 1883. Not only for the

IOWA INDIANS JN INDIAN TERRITORY.

5

Iowas who had wandered there, but such other Indians a~ the Secretary might see fit to locate thereon. Neither it nor its occupants were

mentioned in the act of 1t$85. No consideration was ever pairl for it by

the Indians, and those on it have in fact never ac-quired any title, because not accompanied by the tribe, to whom alone a patent could issue,

and only upon occupancy b,Y the tribe.

The lands in this Indian Territory were then in a wild unsettled country, while the act of 1885 put the minimum price on the lands in Kansas and Nebraska at $8 au acre; the,y are now worth at least $25 per

acn•, according to the l>est information. The lauds in the Iudiau Territory have been agreed to l>e sold at about 38 ceuts an acre, allotments

being also granted. This low price is accepted by the Iowas there

evidently because of their knowledge of tile weakness of even their

own claim.

There is abundant laud on the Kansas and Nebraska reservation for

allotment to all there~ as above shown; the survey, sale, and allotments

will be ordered without further delay, and insisted upon until consummated; and it is n(jt perceived but that this must result in a much

greater advantage to these Indians than they could obtain in the Indian

Territory. It is to be remembered they can not have both-their allotment in Kansas and Nebraska and also their claim in a reservation to

which they have never removed.

The act of 1887 clearly exhibited that it was not then expected that

the tribe would remove and secure a patent elsewllere, but that the

plan of allotments on the reservation and sale of the remainder thereof

was to be pursued. This was about two years after assent in council

to remove.

Moreover, it is to be noticed that were these Indians in Nebraska

and Kansas now to demand or receive allotments in the Indian Territory or the proceeds of lands sold there under the agreement with the

Cherokee commissioners, they would thereby forfeit their claims to the

Yery favorable terms of the laws of 1885 and 18·"7.

It is deemed to so construe this law on the whole subject as to require the assent of the Iowas in Nebraska and Kansas, and thus require

or induce them to forfeit their present advantages, would not be protecting their best interests.

There having been no consent to accept the reservation since the last

Congre8sional exercise of its control (the act of 18o7), and no actual

occupancy of the Indian Territory reservation by those of Kansas and

Nebraska, it is deemed the Iowas in the Indian Territory were the only

ones necessary to consult, and they only out of a disposition to induce

them to go upon allotments and to cultivate them in a contented state

of mind. If the Iowas of Nebraska and Kansas hereafter claim a reservation for such as will not accept allotments where they are, it can be

given if deemed necessary or proper. They may be settled even east

of the Western Oherokee line.

·

Congress has complete power and jurisdiction on consideration of

this .question to control the subject by legislation as it deems best for

the tribe. (United States vs. Kagama, 118 U. S. S. C. R., 375; Choctaw Nation vs. United States, 119 U. S., 27.)

The views of the Acting Commissioner of Indian Affairs and of the

Assistant Attorney-General, that differ with my own, are herewith submitted.

Most respectfully,

JOHN W. NOBLE,

Secretary.

lOW A INDIANS IN INDIAN TERRITORY.

IOWA VILLAGE, May 28, 1890.

SIR: We have the honor now to make report to you in pursuance of the

I

act of Congress authorizing the creation of what is commonly known

as the Cherokee Commission. Under the in~tructions of the Hon. Secretary of the Interior the commission met at Guthrie, Oklahoma, on

the 12th instant.

After securing transportation and making other necessary preparations for visiting the Indians at their home, we left Guthrie on the 16th

and arrived at the Iowa Village on tbc 17th instant.

After conferring with Chief Tohee and other members of the tribe a

meeting was arr~nged for that afternoon, which was held. Some three

hours were spent in discussing the wants of the Government in a general way by the commissioners, and the Indians in a like general way

presented their objections to any change in their condition or circumstances.

On Monday the 19th another conference was held and much talk was

had, when the commission presented to them a definite proposition providing for allotments in severalty of 80 acres of· land for each Iowa

Indian residing upon the reservation and money payments as follows:

Twenty-four thousand dollars to be paid out under the direction of

the Com missioner of Indian Affairs, as nearly per capita as may be, in

the improvement of their allotments, buying breeding animals, agricultural implements and seeds; also $3,600 per annum, payable semi-annually for the first five years after the contract shall take effect; $3,000

per annum, payable semi-annually for the second five years after the

contract shall take effect; $2,400 per annum, payable semi-annually

for the third five years after the contract shall take effect; $1,800 per

annum payable semi-annually for the fourth five years after the contract

shall take effect; and $1,200 per annum payable semi-annually for the

fifth five years after the contract shall take efl:'ect.

On Tuesday, the 20th, another council was held, when three of the

most advanced and intelligent members of the tribe accepted the offer

and signed the contract.

On the night of our arrival the Iowas held a grotesque dance to the

music of a uass drum accompanied by sleigh-bells.

This exercise was said to be for the purpose of invoking aid from on

high to guide tllem in their negotiations with the commissioners. The

dancing was continued Sunday and parts of other days dudng our stay,

l.mt negotiation~ were pushed quietly from day to day until a successful

result was reached.

Before closing the contract, at the request of many Indians and at

the dictation of humanity, an additional sum of $350 was p!·ovided for

Chief Tohee because of . his total blindness and complete helplessness.

The lowas are but little advanced in civilization and the older men

are especially ad verse to adopting or even approaching the ways of the

white man. They seem unwilling to have their children educated, and

seem afraid of contact with the whites, therefore in the contract we

have adopted the plan em braced in the general allotment act of Congress, that the United States shall hold title in trnst in their lands for

a period of twenty-five years. These Indians are poor indeed.

Tile most intelligent among them inform us that many have no regular meals or meal time, but cook and eat whenever they have anything

to cook and eat, whether it is twice in one day or once iu t\"\·o days.

With a large reservation of much very goodland a great majority of

IOWA INDIANS lN INDIAN TEHRITORY.

7

them could not or would not live without annuities from the Government. They live in bark houses, admirably adapted to summer use

while rains are not upon them. There seems to be now no incentive to

·energ,v; to exist is all that is required-a realization of the communist's

dream-much property held in common, with greater poverty the common lot of all.

The Iowas have no government that we are made aware of.

They have a chief and he has some advisers of his own selection,

but no one seems to have authority to control ordirect. In conference

with the commission an,y Indian seemed to have as much to say and .with

as much authority as the 'Chief.

No person or set of persons assumed or claimed the right to make

arrangements or contract with the Government by virtue of any position, official or otherwise, ·.eld by him or them; so that we were compelled to and did deal with the tribe. Of the chief and four advisers,

we have secured the signatures of three to the contract, a majority of

one. Of the twenty-three male members of the tribe over eighteen

years of age residing and being on the reservation, we have secured the

signatures of thirteen. Of less than fifty members of the tribe, male

and female, over the age of eighteen years, we have secured the signatures of thirty-four. Of an entire population of about eighty-six men,

women, and children, we have secured the signatures of those over

eighteen years of age that represent sixty-two.

Those that did not sign the contract, a small minority in any way

considered, all united in saying the contract was good and fair and

H!)eral, but they would not sign it simply because they did not want to.

The Iowa Reservation contains 228,418 acres. .

The Iowa tribe residing on said reservation is composed of eighty-six

persons, as nearly as we can arrive at the number.

The allotments and church and school-house reservation contain (if

eighty-six allotments shall prove correct) 6,890 acres.

The residne, 221,528 acres, becomes the land of the United States,

with all Indian titles, claims, and interests 13xtinguished.

The amount agreed to be paid for such relinquishment is in the aggregate $84,350, or 38 cents per acre. But $60,000 of the money to be paid

is in annuities extepding over the period of twenty-five years, the present worth of which, computing interest at 5 per cent. per annum, is in

round numbers $37,000, making the aggregate $61,350, or less than 28

cents per acre.

The Commission is aware of the very limited extent of the Iowas' real

title and interest in and to said tract of country, but their claim is absolute ownership, they believing, or assuming to believe, that an executive order signed by the great father, setting land apart for their permanent use and occupation, makes absolute title. The standard of intelligencP among the Iowas makes it exceedingly difficult to make them

understand that they have but a limited and qualified interest. Other

negotiations in the Territory perfected and pending, and especially the

Oklahoma purchase, have come to their knowledge, and their minds had

become fixed upon allotments of 160 acres to each member of the tribe

and $1.25 an acre for the residue of the reservation; but the Commission,

knowing their title to be limited and their tenure even insecure, procured the contract herein described.

The Commission appreciates the outfit for camping, tram~portation,

and escort, commanded by an efficient officer in the person of Lieutenant

Crawford.

•

8

IOWA INDIANS IN INDIAN TERRITORY.

Our thanks are also especially due to Capt. H. C. Cavanaugh,

Thirteenth Infantry, U. S. Army, for his uniform courtesy and prompt

action in executing the order of the War Department to furnish the

above.

At the instance of the chief and other Indians the Commission made

and signed two supplemental articles of small import to the contract.

At the instance of the chief, because of the necessities of the Iowas,

the Commission agreed to recommend in its report (although foreign to

the purpose for which the Commission was created) that their annuities

provided for by existing laws shall be paid semi-annually instead of

annually, as he represents is now the practice. In compliance with such

agreement we make such recommendation.

The ()om mission is aware that the many conditions and times of payment provided for in the contract make it seem complicated, but in

view of the condition of the Iowas they are all, in the judgment of the

Commission, necessary for the best interest and comfort and prosperity

of the Indian.

A list of the signers to the contract and of the persons represented

by them is hereto appended.

We leave here to-day to visit and open negotiations with the Sacancl

Fox Indians.

.

We have tho honor to be, very respectfully, your obedient servants,

DAVID H. JEROME,

A.M. WILSON,

WARREN G. SAYRE,

Commissioners.

The PRESIDENT,

Washington, D. C.

List of signe1·s and pet·sons t•ep?·esentetl by thern.

William 'fohee, chief.

Maggie 'fohee, wife.

Emma 'fohee, niece.

Charles 'fohee, son.

Amelia 'fohee, niece.

Abrokinie.

Mary White Cloud, wife.

Nellie Green, <.laughter.

Elwood Green, son.

Jefferson White Cloud.

Ellen White Cloud, wife.

Julia White Cloud, daughter.

Mary White Cloud, daughter.

Emma White Cloud,

daughter.

Phrebe Whit o Cloud,

daughter.

Eliza White Cloud, daughter.

Elizabeth White Cloud,

daughter.

Uora White Cloud, daughter.

Victor Dupee.

Mary Dupee, wife.

Aroma Dupee, daughter.

Louise Dupee, daughter.

Sophia Dupee, daughter.

Frederich Dupee, son.

Kirwin Murray.

Mary Murray, wife.

Charles C. Murray, son.

Eliza Keebolt.

Eva White, daughter.

David 'fohee.

Mary 'fohee, wife.

Mary Neal 'fohee, daughter.

Edward Tohee, step-son.

Allie Tohee, step-daughter.

Garrie Squirrel.

Susan Squirrel, wife.

Mary Fly Squirrel, daughter.

Widow Tohee, A-paw-numee.

Mary Squirrel, sister.

Albert Ely.

Julia Ely, wife.

Unborn child.

Naw-a-tomie, widow.

Ro@ert Small, grandson.

Moses.

Lucinda R. Moses, wife.

Willie Dole.

Josie Dole. wife.

Jacob Dole, son.

Tom Dorian.

Catharine Dorian, wife.

Big F:ar.

Theresia Big Ear, wife.

l!,arrar H.ubedeau, grandchild.

David Tohee, jr., grandchild.

Julia Washington, widow.

Ida Washington, daughter.

Anna Rubecleau, widow.

Maggie Rubedeau, daughter.

~ I

Jennie Rubedeau, daughter.

~

Gratamontbu, grandchild.

IOWA INDIANS IN INDIAN TERRITORY.

9

Articles of agreement mctde and entered into on the 20th day of May, A . .D.

1890, at the Iou:a Village in what is known as the Iowa Reservation in the

Indian Territory, by .David H. Jerome, Alfred M. Wilson, and Warren

G. Sayre, commissioners on the part of the United States appointed for

the purpose, ancl the Iou·a tribe .o f India.ns residing on said reser-vation.

ARTICLE I. The said Iowa tribe of Inuians, residing and having their

homes thereon, upon the conditions heremafter expressed do hereby

surrender and relinquish to the United States all their right, title, claim,

and il1terest in and to and over the following described tract of country

in the Indian Territory, viz:

Beginning at the point where the Deep Fork of the Canadian River intersects the

west boundary of the Sac antl Fox Reservation; thence north along said west boundary to the south bank of the Cimarron River; thence up said Cimarron River to the

Indian meridian ; thence along said Indian meridian to the Deep Fork of the Canadian River; thence down said Deep l<'ork to the place of beginning,

set apart for the permanent use and occupation of the Iowa and such

other Indians as the Secretary of the Interior may see fit to locate

thereon, by executive order made and dated the 15th day of August,

A. D. 1883.

ARTICLE II. Each and every memb'er of said Iowa tribe of .Indians

shall be entitled to select and locate upon said reservation or tract of

country eighty (RO) acres of land which shall be allotted to such Indian

in severalty. No other restriction as to locality shall be placed upon

such selections than that they shall be so located as to conform to the

Congressional survey or subdivision of said tract of country, and any

Indian having impro·vements may have the pr~ference over any other

Indian in and to the tract of land containing such improvement, so far

as they are within a legal subdivision not exceeding in area the quantity

of land that he is entitled to select and locate.

Each member of said tribe of Indians over the age of eighteen years

shall select his or her land, and the father, or if he be dead the mother,

shall select the land herein provided for, for each of his or her children

who may be under the age of eighteen years, and if both father and

mother of the child under eighteen :years of age shall be dead, th~n the

nearest of kin over eighteen years of age anu an Iowa Indian shall select and locate his or her land; or, if such person shall be without kindred, as aforesaid, then the Commissioner of Indian Affairs or some on·e

by:him authorized, shall select and locate the land of such child.

ARTICLE III. That the allotments provided for in this act shall

be made at the cost of the United States by special agents appointed

by the President for such purpose, under sucll rules and regulations

as tile Secretary of the Interior may from time to time prescribe, and

within sixty days after such special agent or agents shall appear upon

said reservation and give notice to the acting and recognized chief of

said Iowa tribe of Indians, that he is ready to make such allotments;

and if any one entitled to an allotment bereunner shall fail to make his

or her selection within said period of sixty days, then such special

agent shall proceed at once to make such selection for such person or

persons, which shall have the same eftect as if ,made by the person so

entitled; and when all of said allotments are made and approved then

the residue of said reservation except as hereinafter stated, shall, as

far as said Iowa Indians are concerned, become public land of the

United States.

AR1'ICLE IV. Upon the approval of the allotments provided for herein

by the Secretary of the Interior he shall cause patents to issne therefor

in the name of the allottees, ';vhicb patents shall be of the· legal effect

10

lOW A INDIANS IN IN:OIAN TERRITORY.

:and declare that the United States does and will hold tlJe land thus

allotted for the period of twenty-five years in trust for the sole use and

benefit of the Indian to whom such allotments shall have been made,

·Or in case of his or her decease, of his or her heirs or devisees according

to the laws of the State or Territory where such land is located, and

that at the expiration of said period the United States will convey the

same by patent to said Indian or his heirs or devisees as aforesaid in

fee, discharged of said trust and free of all incumbrance whatsoever.

And if any conveyance shall be made of the lands set apart and

.allotted as herein provided, or any contract made touching the same,

before the expiration of the time above mentioned, such conveyance or

contract shall be absolutely null and void.

.

And during said period of twenty-five years said land, so allotted and

the improvements thereon shall not be subject to taxation for any purpose

by any State or Territory or any municipal subdivision thereof, nor subject to be seized upon any execution or other mesne or final process issued

out of any court of any State or Territory, and shall never be subject

to be seized or sold upqn any execution or other mesne or final process

issued out of any court of any State or Territory upon any judgment

rendered upon any debt or liability incurred, the consideration of which,

immediate or remote, passed prior to the expiration of said period of

twenty-five years. And the law of descent and partition in force in the

State or Territory where such lands are situated shall apply thereto .

.ARTICLE V. There shall be excepted from the operation of this agreement, a tract of land not exceeding ten acres in a square form, including

the church and school-house and grave-yard at or near the Iowa village,

and that ten acres of land shall belong to said Iowa tribe of India.ns

in common so long as they shall use the same for religions, education,al,

and burial purposes for their said tribe-but whenever they shall cease

to use the same for such purposes for their tribe, said tract of land

shall belong to the United States.

ARTICLE VI. When all the allotments are made as aforesaid the

United States, under the direction of the Commissioner of Indian

Affairs, will expend for said Iowa tribe of Indians described herein as

beneficiaries of this agTeemeut for imp.r oving their said land, for building houses, providing for said Indians breeding animals, agricultural

implements, and seeds, the sum of twenty-four thousand dollars, provided that said sum shall be paid out as nearly equally per capita as

may be, the father, or, if he be dead, the mot.her to act for their children

under the age of eighteen years, and the Com missioner of Indian

Affairs in his own discretion to act for orphan children under the age of

eighteen years.

ARTICLE VII. As a further and only additional consideration for

such surrenrler and relinquishment of title, claim, right, and interest as

aforesa,i d the United States will pay to said Iowa Indians, the beneficiaries of this agreement, per eapita, three thousand and six hundred dollars per annum, payable semi-annually for the first five years after

this agreement shall take effect; three thousand dollars per annum,

payable semi-annually for the second fi 'Te years after this agreement

shall take effect; two thousand and four hundred dollars per annum,

payable semi-annually for the third five years after this agreement

shall take pffect; one thousand eight hundred dollars per ann urn, payable se:>mi-annually for the fourth :five year8 after this agreement shall

take effect, and one thousand two hundred dollars per annum, payable

semi-annually for the fifth five years after the agreement shall take

·effect. In all such payments each person over the ag·e of eighteen years

IOWA INDIANS IN

I~DIAN

TERRITORY.

11

shall receive and receipt for his or her share, and the father, or if he be

dead, the mother of any person entitled, who is under the age of eighteen

years of age, shall receive and receipt for his or ber share; and when

both father a·td mothet of such person be dead, the person, if an Iowa

Indian, wit.IJ whom such person makes his home, shall receive anrl receipt for snch }Wrson's shares, otherwise it shall be paid to the Indian

.agent of the Raid Iowa Indians for the use of such orphan. ·

ARTICLE VIII. It is hereby expressly agreed and undPrstoorl that

nothing herein contained shall in any manner affect any other claim not

mentioned herein that said Iowa tribe of Indians have against the United

States; nor shall this agreement in any manner affect any interest that

.said tribe or its members may have in any reservation of land outside

<>f th~ Indian Territory, nor shall this agreement in any manner affect ·

.any annuities or payments, principal or interest, due to said tribe or its

members by existing laws or treaties with the United States.

ARTICLE IX. William Tohee, the chief of the Iowas, is incurably

blind and helpless, an~ has a wife, Maggie Tohee, an Iowa woman,

but by whom William has no child. William is not only helpless but

requires and receives the constant care and attention of Maggie, so that

neither can give attention to matters of business or labor or devote their

time or energy to procuring a living; therefore it is mutually agreed,

in addition to the provisions hereinbefore made for the Iowas, including

said William and Maggie, that the United States will pay out to or for

the use of said William, under the direction of the Commissioner of Indian Affairs, the sum of three hundred and fifty dollars. Because of

the relation between the said William and Maggie and the care that he

requires of her and that she bestows upon him, it is agreed that the patents to them creating the trust in the United States for them for the

period of twenty-five years shall further recite and provide that in the

event of death of either said William or :Maggie during said period of

twenty-five years then the possession and use of the lands allotted to

both shall be in the survivor, and patents for the laud allotted to both

shall issue to the survivor, discharged of the said trust at the expiration of the said twenty-five years, provided said parties shall be living

together as man and wife until tlw death of either.

ARTICLE X. This agreement shall be in force from and after its ap·

pro val by the Congress of the United States.

In witness whereof we bave hereunto set our hands and seals the day

and year first abov(', written.

David H. Jerome, A.M. Wilson, Warrt>.n G. Sayre, commissioners

on the part of the United States.

Jefferson White Cloud (his x mark), Kirwan Murray, Victor

DupeP-, ·b;hza ICeebolte, Eva White, William Tobee. chief,

(!Jis x mark), Maggie Tohee (her x mark), Charles Tohee,

Emma Tohee, David Tohee, Garrie Squirrel, Susan Squirrel

(her x mark), Abrockanie (John Green) (!Jis x mark), Mary

White Uloud (her x mark), Nellie Green (l..ter x mark), Albert

Ely (his x mark), Julia Ely (her x mark), Naw-a-tawmy (her

x mark), Moses (his x mark), Lucinda R. Moses (her x mark),

Willie Dole, Josie Dole (her x mark), Tom Dorian (his x

mark), Catharine Dorian (her x mark), Mary f?quirrel (her x

mark), Widow Tohee (her x mark), J\iar.r Tobee (her x mark),

Elleu \Vhite Cloud (her x mark), Mary Murray (her x mark),

Kis -tom-ie (her x mark), Big Ear (his x mark), Theresa Big

Ear (her x mark), Julia \Vasilingt'On (her x mark), Anna

Hul>ideau (uer x lll<Hk).

•

12

IOWA INDIANS IN INDIAN TERRITORY.

SUPPLEMENTAL ARTICLES.

ARTICLE XI. It is now further agTeed by the commission, on the

part of the United States, at the special instance and request of Chief

Tohee, that the Iowas at the expiration of said term of twenty-five years,

during which the United States shall hold the allotments in trust for

them, shall represent to th~ President that they desire said trust continued, then the President may, in his discretion, extend said period,

during which said lands are so held in tru~t for any period not exceeding .five years.

•

·

ARTICLE XII.. It is further agreed that when said allotments are

being made the chief of the Iowas may select an additional ten acres

in a square form for the use of said tribe in said reservation, conforming in boundaries to the legal subdivisions of land therein, which shall

be held by said tribe in common, but when abandoned by said tribe

shall become the property of the United States.

DAVID H. JEROME,

•

A. M. WILSON,

WARREN G. SAYRE,

Commissioners.

I, Kirwan Murray, do hereby certify that I am the official interpreter

chosen by the Iowa tribe of Indians; that I am a member of said tribe;

that I interpreted to said Indians the nature and terms and words of

the contract to which this is appended, made and entered into by and

between David H. Jerome, Alfred M. Wilson, and Warren G. Sayre,

commissioners on the part of the United States, and the Iowa Indians

residing on their reservation in the Indian Territory, at the Iowa Village, on the 20th day of May, A. D. 1890; that said contract was by

me fully explained to said Indians and they made to understand the

same before it was signed by them; and I further certify that I was personally present when each and every person's name was signed thereto,

and witnessed the same, and that those whose signatures appear to said

contract appended the same thereto understandingly, and where signed

by mark or otherwise I attest the same.

Given under my hand a.t the Iowa Vi11age this May 28th, 1890.

KIRWAN MURRAY.

DEPARTMENT OF THE INTERIOR,

OFFICE OF INDIAN AFFAIRS,

·wa,shington, June 5, 1890.

SIR: I have the honor to acknowledge the receipt of your communication dated June 4, 1890, in which you transmit certain articles of

agreement made and entered into on the 20th day of May, 1890;at Iowa

Village, Iowa Reservation, in Oklahoma Territory, by David H. Jerome,

Alfred 1\L Wilson, and Warren G. Sayre, commissioners on the part of

the United States, and the tribe of Indians residing on said reservation,

and request that I will examine these documents without delay, with

the view to determining whether they are in due form and in compliance with the instructions to the commissioners and in my judgment

valid for the purposes indicated.

You direct the preparation of the necessary papers for the submission

of the agreement to the President for his action and for his transmis-

lOW A INDIANS IN INDIAN TERRITORY.

13

sion of the sam~!o Congress if in the opinion of this office they are in

due form and sufficient. If not, that I will state any objections to the

same at length that they ma.y receive due consideration at your hands.

From the report of the commission which accompanies the agreement

it appears that they obtained the signatures of thirteen of the twentythree male members of the tribe over eighteen years of age, re8iding

on the reservation, and the signatures of thirty-four of the :fifty members of the tribe, male and female, over the age of eighteen years.

By the :first article of the agreement the Iowa tribe of Indians residing and having their homes upon the tract of country in the Indian

Territory as described in the ExAcutive order of August 15, 1883, surrender and relinquish to the United States all their rig-ht, title, claim,

and interest in and to the said described tract upon the terms and conditions specified in the agreement.

By the second article of the agreement each and every member of said

Iowa tribe of Indians (now residing on said described reservation) is

entitled to select and locate. on said reservation 80 acres of land, which

shall be allotted to said Indians in severalty.

The agreement provides the manner in which these allotments shall

be made and for the issuance of patents therefor substantiall,y upon the

terms and conditions prescribed in the general allotment act (24 Stats.,

388).

The .Price stipulated to be paid for the lands relinquished, as stated

by the commission, is, in the aggregate, $84,350, or 38 eents per acre,

payable in semi-annual payments extending over a period of twenty-five

years.

I see no objection to the form of the agreement.

This reservation was established b,v Executive order of August 15,

18 .~3. In office report of July 30,1883, submitting a draught of the order,

the following statement was made:

.

It is probable that the Iowa Reservation in Kansas and Nebraska will before many

years Le sold, when that portion of the tribe in t he Indian Territory will be joined

by their brethren from those States, making the number of Iowas some two hundred

and twenty.

March 3, 1885, an act was passed which provided for the sale of the

Sac and Fox and Iowa Indian Reservations in the States of Kansas and

Nebraska, and for other purposes (23 Stats., 351).

The first and second sections of said act provided for the appraisement and sale of the remainder of the reservation of the Iowa Indians

lying in the States of N"ebraska and Kansas, with the consent of a majority of the chiefs, headm~n, and male adults of the tribe expressed in

open council.

The third section provided that if any member of the tribe, residing

at the dat~ of the passage of the act upon any lands authorized to be

sold, being the head of a family or a single man, and having improvements thereon, should elect to remain on the lands occupied by him, he

should have an allotment of the land with title thereto.

The :fifth section of the act provided that the Secretary of the Interior might, with the consent of the Indians expressed in open council as

aforesaid, secure other reservation lands upon which to locate said Indians, cause their removal thereto, and expend such sums as might be

necessary for their comfort and advancement in civilization.

The sixth section provided for the issuance of a patent for the reservation that might be selected under the provisions of the preceding

section.

April 4, 1885, the Secretary of the Interior decided that the Iowa In-

14

IOWA INDIANS IN INDIAN TERRITORY.

dians could, under the above act if they so desired, l1e locate(l on the

Iowa Reservation in the Indian Territory created by the Executive

order of August 15, 18~3, in which event a patent would be issued to

the Iowa tribe of Indians for such reservation, as provided in the sixth

section of the act.

Under instructions from this office separate councils were held with

the Iowa Indians in Kansas and Nebraska, aud on the reservation in the

Indian Territory. The result of these councils, as stated by Special

Agent Parsons, in his report of August 7, 1885, is as follows:

All the Iowas of the Indian Territory, twenty-six in number, have voted to sell the

reservation in Kansas and Nebraska. " * "

Eleven out of the twenty-three Iowas in Kansas and Nebraska voted to sell the reservation in Kansas and Nebraska. ... " "

In all, thirty-seven out of the forty-nine Iowas votin~ in favor of sale and to locate

Kansas and Nebraska Iowas on Iowa reservation in Inuian Territory.

These numbers refer to chiefs, lleadmen, and male adults.

Objections having been made by the Iowas of Kansas and Nebraska,

that under the third section of the act of March 3, 1885, no provision was

made for allotments to the minor children of those members who elected

to remain on the reservation in those States, or to orphans, Congress

was asked to amend the act in· this respect, and on the 26th of January,

1887, an act was passed amending the third section of said first-mentioned act, so as to provide for the allotment of lands to those persons

desiring to remain, as follows :

To the head of a family, 160 acres; to a single person over eighteen

years of age, or an orphan child under eighteen years of age, 80 acres;

and to eacll minor child under eighteen years of age, 40 acres (24 Stats.,

367). The act was unchanged in other respects.

Under the provisions of this act councils were again held with each

portion of the tribe, during the months of July and August, 1887, by Inspector R. S. Gardner, under instructions from this office dated June 18,

1887, and approved by the Secretary of the Interior.

In his instructions Inspector Gardner was instructed to carefully explain to the Iowas, both in Kansas and Nebraska and in the Indian Territory, all the provisions of the act of March ::5, 1885, and the act

amendatory thereof, and ''to inform all the Iowas that they can remove

to the reservation i.n the Indian Territory already occupied by a portion of the tribe, where there is an abundant quantity of land for all

their wants."

He reported August 2, 1887, that the Iowa tribe were almost a unit

in favor of the sale of their lands in Kansas and Nebraska as contemplated by the two acts of Congress, approved March 3, 1885, and J anuary 26, 18~7. The result of these two councils was as follows:

At the council held with the Iowas in Kansas, July 20, 1887, twentyfour voted to sell lands of the reRervation in Kansas and Nebraska.

Six voted not to; six being absent.

At the council held with the Iowas, August 3, 1887, at the Sac and

Fox Agency, Indian Territory, twenty-five voted to sell the lands of

the reservation in Nebraska and Kansas, none voting in the negative.

This action was held to be a vaJid acceptance of the provisions of the

act of March 3, 1885, as amended by the act of January 26, 1887.

On the 20th of August, 1887, the Secretary im;tructed the Commis·

sioner of the General Land Office to enter into contract for the survey of

the reservation in Kansas and Nebraska, which was necessary before

lands could be allotted or appraised.

In the original of the instructions for the guidance of the special

-

IOWA INDIANS IN INDIAN TERRITORY.

15

agent in tile council of tile Iowa Indians, he was instructed to inform

them that the decision to locate them in the Indian Territory was based

upon the fact that it was thought that such location would meet with

their wishes, but if they desired another location the matter would be

further considered.

From the report of Special Agent Parsons, however, it· appeared that

the proposed location with their brethren in the Indian Territory was

entirely satisfactory to 'the members in Kansas and Nebraska and the·

negotiations were apparently conducted with the understanding that

those of tlie tribe who wished to remove to the Indian Territory could

do so, and no other location was suggested or thought of. The same is

true of the negotiations conducted by Inspector Gardner.

The surveys not having been completed the allotments in Kansas

and Nebraska have not been made, and it is not known what proporti8n of the tribe will elect to remain and what to remove to the Territory.

It has been reported to this office on several occasions that some of'

these Indians were anxious to remove, and desired assistance in doing

so; but the agent was informed that it was not considered expedient to

remove any of them until allotments bad been made and it was definitely known how many and who desired to remove.

Under the provisions of the acts hereinbefore cited, and the councils

held with the Indians, it seems to me evident that any of the Iowa Indians in Kansas and Nebraska who desire to do so have the right to

remove to and settle with the Iowas in the Indian Territory, and that

when such removal is effected, the united tribe will be entitled to a

patent from the United States for the lands in such Indian Reservation, under th·e provisions of the sixth section of the act of March 3,

1885.

It seems to follow that those of the Indians in Kansas and Nebraska

who may elect to remove have an inchoate right in thp, reservation in

the Indian Territory, of which right they can only be deprived with

their own conse:ut or by the action of a clear majority of the whole

tribe.

Provision ought, therefore, to be made in the agreement whereby sufficient land shall be reserved to make allotments to those members of' ·

the tribe not residing on the reservation but who rnay elect to remove

thereto.

Under the provisions of the act of lYiarch 3, 1885, section 8, any Indian who may be properly residing on the reservation selected under

the act, is entitled to an allotment as follows:

Each head of a family, 160 acres; each single person over twenty-one

years of age, 80 acres; each minor, 40 acres.

As the allotment provided for in the agreement is 80 acres to each

person it would seem to be necessary to secure the consent of each person intending to remove to the proposed change in quantity. This,

however, is hardly practicable in view of the present unsettled conclition of the matter, and the proper manner by which the rights of all

parties are to be protected is, undoubtedly, to secure the signatures of

a majority of the whole tribe to the agreement. I do not anticipate that

any difficulty will be experienced in securing the consent of the Kansas

and Nebraska Indians to the agreement, modified so as to protect the

rights of all the members of the tribe.

The fact that the interest of the Indians in the Indian Territory in

the tribal reservation in Kansas and Nebraska is fully protected in the

16

lOW A INDIANS IN INDIAN TERRITORY.

agreement, strengthens my belief that tLe rights of those in Kansas

and Nebraska in the reservation in the Indian Territory should also be

protected.

The instructions prepared in this office for the guidance of the Cherokee Commission contain no reference to the Kansas and Nebraska

~owas. When the instructions were prepared this office was probably

under the impression that the provisions of the acts of 1885 and 1887

would be executed and all the Indians intending to remove would be

located on the new reservation before the commission began t.heir

negotiations with the Iowas, and therefore made no mention of the matter. If a full history had been given it would have prevented the commission from concluding the agreement without considering the Iowas

in Kansas and Nebraska as they appear to have done.

It may be remarked that the delay in the execution of the provisions

of the acts of 1885 and 1887 was occasioned by the imperfect manner

in which the survey was executed, which survey has recently been rejected by the General Land Office.

I observe that two supplemental articles to the agreement submitted ,

by the commission are not signed by the Indians. These articles, however, are mainly for the benefit of the Indians, and their failure to sign

is not considered a material defect. It is suggested, however, that if

the agreement should be reformed in accordance with the views herein

indicated, so as to render a new agreement necessary, all the articles

should be incorporated in it, so as to show that they have been consented to bv both the commission and the Indians.

I will await your instructions upon the points involved in the information here presented before proceeding as directed by you to the preparation of the documents required for transmitting the· agreement to

the President.

Very respectfully, your obedient servant,

R. v. BELT,

Acting Commissioner.

The SECRETARY OF THE INTERIOR.

DEP ARTMEN1' OF THE INTERIOR,

OFFICE OF INDIAN AFFAIRS,

Washington, June 12, 1890.

SIR: I have the honor to acknowledge the receipt of your comrpunication, dated June 10, 1890, in which, referring to office report of June

5, 1890, relating to the Iowas in Kansas and Nebraska, and the question whether they should join in the agreement recently made with the

Iowa Indians in the Indian Territory, you ask what was done with the

land in Iowa (Kansas believed to be meant) and Nebraska not used for

allotments, and which was to be sold in 40-acre tracts; whether the

money was put to the credit of the whole tribe, or if it has yet been

d1sposed of; and what consideration, if any, was paid directly or indirectly for the reservation in the Indian Territory, and who paid it,

whether the tribe as a whole or otherwise.

In reply I have the honor to state that _the acts of March 3, 1885 (23

Stats., 351), and Janu.ary 26, 1887 (24 Sfats., 367), providing for the

allotment of lands in severalty to such of the Iowa Indians in Kansas

and Nebraska as desire to remain, the removal of the remainder, and

IOWA INDIANS IN INDIAN TERRITORY.

17

the appraisal and sale of the surplus land, have not as yet been executed

for the reason indicated in office report of the 5th instant, viz, the imperfect execution of the necessary surveys, which surveys have only

recently been finally acted upon by the General Land Office and rejected. Therefore the allotments have not been made, and consequently

no lands have been sold and no money has been put to the credit of the

tribe, otherwise disposed of.

The fourth section of the act of March 3, 1885 (which act also relates

to the adjoining reservation of the Sac and Fox of the Missouri, in

Kansas and Nebraska), provides that the net proceeds of the sale of

the lands "shall be placed to the credit of the said Sac and Fox and

Iowa Indians, according to the interest of said tribes in said reservations, in the Treasury of the United States."

The Iowa Reservation in Kansas and Nebraska was established by

the treaty of September 17, 1836 (7 Stats., 511), embracing 200 sections

of land. By the treaty of May 17, 1854 (10 Stats., 1069), the Iowas

ceded to the United States all of the reservation except a certain described portion. By the treaty of March 6, 1861 (12 Stats., 1171), they

ceded to the United States, for the use of the Sac and Fox of the Missouri Indians, a portion of the reservation as reduced by the treaty of

1854.

A portion of the Iowa tribe, becoming dissatisfied from some cause,

wandered into the Indian Territory in 1878 or 1879 and located near

the Sac and Fox of the. Mississippi Reservation.

In 1881 their number was 1eported as forty-seven.

In 1883 their number was reported as eighty-eight. It being anticipated that all or nearly all of the tribe would eventually remove to the

Territory, a reservation was set apart for them by the Executive order

of August 15, 1883, as stated in my report of the 5th instant. For this

reservation no consideration was _paid, either directly or indirectly,

either by the Iowa tribe or any members thereof.

The Iowas in the Indian Territory have always shared pro rata with

their brethren in Kansas and Nebraska in the annuities due the tribe

under treaty stipulations, payment being made to those in the Territory.,

for the past seven or eight years at least, at the Sac and Fox Agency,

Indian Territory.

As stated in office report of the 5th instant, it is believed that the

rights of the Iowas in the Territory in the tribal lands in Kansas and

Nebraska are fully protected in the act of March 3, 1885. It is also

believed they will share in the proceeds that may be derived from the

sale of such lands, if they shall be sold.

Very respectfully, your obedient servant,

R. v. BELT,

Acting Commissioner.

The SECRETARY OF THE INTERIOR.

Referred to the Assistant Attorney-Gener~I.

Do not the facts here stated affect the right of any other Iowas than

those on the Indian Territory reservation to any participation' Have

any of them any other right that the Government chooses to concede t

J. W. NOBLE,

Secretary.

S. Ex. 171--2

18

IOWA INDIANS IN INDIAN TERRITORY.

DEPARTMENT OF THE IN'l'ERIOR,

OFFICE OF THE ASSIS'l'ANT ATTORNEY-GENERAL,

W asking ton, June 23, 18~0.

SIR: I have the honor to acknowledge the receipt, by your reference

of a further communication from the honorable Acting Commissioner

of Indian Af(airs, dated June 12, 1890, in response to your inquiry as

to the disposition of the reservation in Kansas and Nebraska for the

Iowa tribe of Indians; also as to the consideration paid for the Iowa

Reservation in Oklahoma Territory, established by Executive order. The

Acting Commissioner reports that no disposition has been made of said

Kansas and Nebraska reservation under the provisions of the acts of

Cougres~ approved March 3, 1885 (23 Stats, 351), and January 26, 1887

(24 Stats.~ 367), for the reason that no sufficient surveys have been

made of said land, and hence it has been impossible to make allotments

and ascertain who of said Indians would remain and who would remove

to said reservation in the Oklahoma Territory.

He also reports that said reservation in Kansas and Nebraska was

established by the treaty of September 17, 1836 (7 Stats., 511 ), covering

two hundred sections of land; that by treaty of May 17, 1.--54 (10 Stats.,

1069), the Iowas ceded to the United States all of said reservation except a certain part designated therein; that by the treaty of March 6,

1861 (•2 Stats., 1171), they ceded to the United States for the use of

the Sacs and Foxes of Missouri a certain portion of their reservation as

dimiuished by said treaty of 1854; that in 1878 or 1879 a part of said

Iowa tribe of Indians went into the Indian Territory and located near

the Sacs and Foxes;of the Mississippi ReservHtion ; that the number of

said Iowas, estimated at forty-seven in 1881, increased to eighty-eight

in 1883, and upon the expectation that nearly all of the tribe would

ultimately remove to said. Territory, a reservation was set apart for

them by Executive order dated August 15, 1883; that the Iowas in

Kansas and Nebraska and upon said reservation established by said

Exective order have always shared equally in the annuities due the tribe

under treaty stipulations; that "the rights of the Iowas in the tribal

lands in Kansas and Nebraska are fully protected in the act of March

3, 1885," and "that they will share in the proceeds that may be derived

from the sale of such lands."

By said reference the following question is asked:

Do not the facts here stated affect the right ,of any other lowas than those in the

Indian Territory reservation to any participation Y Have any of them any other

right than the Goveroment chooses t.o concede Y

Your inquiry involves the question (1) whether any of the Iowa Indians have a right to lands in said reservation in the Indian Territory,

or in the proceeds from the sale thereof, except as a gratuity from the

Government, and (2) whether the Iowa Indians in Kansas and Nebraska,

not on said reservation, are entitled to share in the funds arising from

the sale thereof. These questions were partly considered in my opinion

of June 9, 1890. To answer said questions satiRfactorily, necessitates

a careful examination and con8ideration of the several treaties made

with said tribe of Indians, the acts of Congress, and the departmental

action relative thereto.

By Article II of the treaty of September 17, 1836 (7 Stats., 511), the

United 8tates, "for a permanent home on which they could 'settle,"

as8igned " to the Iowa trilJe and Missouri band of Sacs and Foxes

the small strip of land on the south side of the 1\iissouri Hiver lying

between the Kickapoo northern boundary-line and the Grand Nemaha

lOW A INDIANS IN INDIAN TERRITORY.

19

River, and ~xtending from the Missouri back and westwardly with the

sa~d Kickapoo line and the Grand Nemaha, making four hundred sections, to be divided between the said Iowas and J\1issonri band of

Sacs and Foxes, the lower half to the Sacs aud Foxes, the upper half

to the Iowas."

On May 17, 1854, articles of agreement were executed by said tribe

of Iowa Indians and a duly allthorized commissioner of the United

States, and by the first article thereof the 'Iowas ceded to the United

States "all their right, title, and interest in and to the country, with

the exception hereinafter named, which was assigned to them by the

treaty" of September 17, 1836. The exception above mentioned embraces a certain tract designated by metes and bounds, which the treaty

provides "shall be the future and permanent home of the Iowas."

Articles II and III of said treaty provide for the sale of the ceded

land and the payment of the proceeds thereof to the Iowa Indians.,.'

Provision is made by Article VI for the division of the reserved lands

and assignment thereof to ~' each person or family" under the direction

of the President. By Article XIII it is provided thatThe President may, by and with the advice and consent of the Senate, adopt such

policy in the management of their affairs aR in his judgment may be most beneficial

to them, or Congress may hereafter make such provision by law· as experience shall

prove to be necessary." (10 Stats., 1069.)

By the treaty of March 6, 1861 (12 Stats., 1171), the Sacs and Foxes

of Missouri ceded to the United States "all their right, title, and interest in and to the lands within their present reservation." The second

article provided for the survey and sale of said lands under the direction of the Secretary of the Interior, and also the disposition of the

proceeds thereof. By Article III of said treatyThe Iowa tribe of Indians, parties to this agreement, hereby cede, relinquish, and

convey to the United States for the use and benefit of the Sacs and l<'oxes of Mit;souri

for their permanent home, all that part of their reservation lying and being west of

Noheart's Creek and bounded as follows:

And it is hereby understood and agreed that in full consideration for said cession

the United States shall hold in trust for the use and benefit of the Iowas the one-half

net proceeds of the sales of the lands described in the second article of this agreement, and interest thereon at the rate of fi per centum per annum shall be paid to

the Iowa tribe in the same manner as their annuities are paid under the treaty of

May 17, Ul54. (10 Stats., 1069). The reservation herein described shall be surveyed

and set apart for the exclusiv~ use and benefit of the Sacs and Foxes of Missouri,

and the remainder of the Iowa lands shall be the tribal reserve of said Iowa Indians,

for their exc1usi ve use and benefit.

It appears from the report of the Indian agent in charge, dated August

16, 1883, that the "Iowas and Sac and Fox of Missouri " had been agitating the question of moving to the Indian Territory for some time,

and at their request permission was granted by the Department by letter dated March 9, 18P!3, to send delegates to select homes in the Indian Territory upon the condition "that all the Indians at the Great

Nemaha agency belonging to the said tribes should remove to the Indian Territory;" that, with the exception of a few, the Indians concluded to remain upon their present reservations, until about the date

of said report, when having been visited by two delegates from the Indian Territory, the Indians were again agitating the question of removal

and "a large majority are expre8sing desires to join their tribes in the

Indian Territory." (Rep. Com. Ind. Aft'. 1883, p. 93.)

.

On August 15, 1~8~1, the President, by executive order set apart a

reservation in the Indian Territory "'for the permanent use and occu-

20

IOWA INDIANS IN INDIAN TERRITORY.

pation of the Iowa and such other Indians as the Secretary of the Interior may see fit to locate thereon." (Rep. Oom. Ind. A:fl'. 1883, p.

223.)

It was the expectation of the Indian Office that when said reservation

was established all of the Iowas would remove thereon. (Letter CommiHsioner of Indian Affairs to the Secretary of ihe Interior, April 3,

1885.) This was the express stipulation in said departmental order

allowing the use of tribal funds to pay the expenses of the delegates

sent by the tribe to the Indian Territory to select homes for the Indians.

It was also anticipated that the reservation in Kansas and Nebraska

would ultimately be sold " when that portion of the tribe in the Indian

Territory will be joined by their brethren from those_States, making

the number of Iowas some 2~0." This waR stated in the report of the

Commissioner of Indian Affairs dated July 30, 1883, submitting to the

Department the draft of the executive order establishing said reservation. (Letter Commissioner of Indian Affairs, July 30, 1883.) Provision was made for the salt:'l of the Sac and Fox Iowa Indian reservations

in Nebraska and Kansas by the act of March 3, 1885 (23 Stats., 351).

'l1he first section authorized the Secretarv of the Interior "with the consent of a majority of the chiefs, headmen and male adults of tbe Sac and

Fox (of the Missouri) tribe of Indians and the Iowa tribe of Indians

e:xpressed in open council by each tribe,'' ''to cause to be surveyed if

necessary and sold the remainder of t.h e reservations of the Sac and Fox

and Iowa Indians lying in the States of Nebraska and Kansas." Tbe

lands were to be appraised in tracts of forty acres each. By section 2

it was provided ''that after the survey and appraisement of said lands

the Secretary of the Interior shall be, and hereby is, authorized to offer

the Rame * * * at public sale, to the highest bidder."

Provision is also made for the appraisement separately of the improvements made upon such lands by any Indian or for the United

States, and also fixing the minimum price at eight dollars per acre, and

limiting the sales to actual settlers, or such as intend to become such,

in quantity not exceeding 160 acres, and also providing for payments

in installments and the issuance of patents upon receipt of all the pay.nwnts by the purchaser. Section 3 provides that- .

If any member of said Sac and Fox or lo'Ya tribe of Indians residing at the elate of

·the passage of this act upon any of the lands authorized to be ~Sold by the second section of this act, and who has improvements·thereon, shall elect to remain on the lands

·occupied by him. such lands shall be withheld from sale as provided for herein, and

·the Secretary of the Interior shall cause a certificate to i~sue to the person so electing

:as follows: lf he be the head of a family, to 160 acres of land, and if a single man, to

.so acres of land, the lanos so selected to include his improvements, and to be accepted

in full satisfaction of his interest in and to the said reservation ano of the moneys or

funrl realized from the sale thereof.

It was further provided that said certificates were to hold the title in

trust for twenty-five years, when patents were to be issued to the Indians

couveying the fee in discharge of the trust, and of all incumbrance

whatever. Section 4 provided that each Indian shall be paid for his

impro·vements, and that the proceeds of the sales of the improvements

of the United States and the proceeds of the sale of said lands shall be

deposited m the Treasury of the United States, and the income thereof

'~shall be annually expended for the benefit of said Indians, under the

direction of the Secretary of the Interior." Section 5 provitles thatThe Secretary of the Interior may, with the consent of the Indians expressed in open

conncil. as aforesaid, secure other reservation lands upon which to locate said Indians

cause their removal thereto, and expend such sums as may be necessary for their comfort and advancement in civilization.

I

.

lOWA INDIANS IN INDIAN TERRITORY.

21

By section 6 it is provided thatThe President of the United States be, and he is hereby aut.horized to cause patents to be issued to the Sac and Fox (of the Missouri) tribe of Indians and the said

Iowa tribe for the reservations that may he selected for them under the provisions of

the preceding section.

Section 7 provides for the issuance of trust patents to said tribes for

the reservations sAlected for them under the provisions of said section 6.

Section 8 provides thatWhenever the Indians who may be properly residing upon the reservations referred

to in the last preceding section shall desire allotments of lands in severalty the Secretary of the Interior shall cause allotments to be made to such Indians in quantity

as follows:

To each bead of a family, 160 acres; to each single person over the age of twentyone years, 80 acres; to each minor, 40 acres.

Section 10 provides thatThe Secretary of the Interior may, with the consent of the Indians expressed in

open council, as provided in ~Section 1, cause the removal of that portion of the Sac

and Fox and Iowa tribes residing upon said Sac and Fox and Iowa reservations in

Nebraska and Kansas to the reservations that may be secured for them,

and an appropriation of $10,000 was made for the payment of the expenses of removal of said Indians, appraisement, and sale of the lands,

which was to be re-imbursed to the United States out of the first proceeds of the sale of said lands. The third section of said act of 1885

was amended by the act of January 2ti, 1887 (24 Stats., 367), changing

the amount of allotment, so as to give to each Indian of said tribesIf be be the head of a family, 160 acres; if a single person over eighteen years of age,

or orphan child under eighteen years of age, 80 acres; and if a minor child under

eighteen years of age, 40 acres. The land so selected shall be held from sale as provided herein, and shall be accepted at their fair valuation, to be ascertained by the

Secretary of the Interior, in part satisfaction of ltis interest in and to said reservation,

and of the moneys or fund realized from the sale thereof. Provided, That his right to

share in the other funds and credits of the tribe shall not be impaired thereby.

1\

Ou April 4, 1885, Acting Secretary Muldrow advised the Commissioner of Indian Affairs that he approved his suggestion relative to

holding a council with the Sacs and Foxes of Missouri to learn if they

will accept the provisions of the act of March 3, 1885, and " that the

Iowa Indians be informed that if they so desire they can be located on

the present Iowa reservation in the Indian Territory, and that a patent

therefor will be made to the Iowa tribe of Indians, less a sufficient

quantity of land for the Toukawas now located there." (Vide Letters

on Ind. Aft., March 11 to June 12, 1885, p. 270.)

This was communicated to the Iowa Indians July 31, 1885 (Ex. Doc.

70, 49th Coug., 1st sess., p. 8).

It appears from letter to you from the Commissioner of Indian Affairs of June 5, 1890, that councils of said Indians were held both in

Nebraska and Kansas and in the Indian Territory in July and

August, 1887, by Inspector Gardner, of the Indian Office, and the rat·

i:fication of said acts was secured as required by the terms thereof.

'l'he reservation in Nebraska and Kansas has not been allotted or sold,

as provided in said acts, for the reason that no sufficient surveys

thereof have yet been made.

On August 15, 1889, Acting Secretary Chandler advised the Commissioner of Indian Affairs that he concurred in the opinion expressed in

his "letter of the lOth inst." thatIt iR not necessary for t.hose of the Iowa tribe of Indians who desire to remove to

the Indian Territory to remain ou their reservation in Kansas until the lands are alloted to thm;e who take lands thereon under the act of January 26, 11;87, (24 Stats.,

22

IOWA INDIANS IN INDIAN TERRITORY.

367). As these Indians have consented to the sale of their reservation in Kansas in

accordance with the terms of the act of March :~, 18t;5 (23 Stats., 261), some arrangement should be made by your office for the removal to the Indian Territory of those

who elect to remove, and they should be removed in a body and settled in their homes..

provision for which is made by the lOth section of said act of March 3, 18~5. (Vide

letters on Indian Affairs from July 24, 1889, to October 7, ltl89, p. 318.)

Upon verbal inquiry it is ascertained that on November 15, 1889, the

Commissioner of Indian .Affairs advised the rndian agent relative to

the removal of the Iowas, and "that no further action should be taken

in the matter until allotments have been made or until further· instructions shall have been received."

In my judgment, every Iowa Indian upon the Nebraska and Kansas

reservation has the right secured to him by the express provi~ion of

said acts of 1885 and 1887 to go to a reservation to be secured for him.

Provision was made in said acts for other reservations upon which to

locate said Indians, and that provision is just as binding upon the Government in equity as thoug-h it had been made by treaty. The Cherokee Tobacco (11 Wall., 621 ). With the understanding that they should

have another reservation, they consented to the terms of the acts of

1885 and 1887, and this is a sufficient consideration to entitle them to

a property right in the Indian 'l'erritory reservation, or to some other

reservation to be provided in accordance with these acts of Congress.

They were not required to pay anything for it, but they were guarantied

the right to elect either to take allotmem;s in Kansas and Nebraska or

go to a reservation to be secured for them. An appropriation was

made by said act of 1885 for their removal "to the reservation or reservations that may be secured for them," and the care and duty of such

removal, even in the absence of legislation as to the mauner, has always

devolved upon the General Government (Fellows vs. Blacksmith, 19

How., 370). It is no fault of the Indians that they have not exercised

the choice indicated in said act.

The previous action of the Department in dealing with Iowa Indians

on both reservations as members of one tribe, the express provision in

section 3 as amended "that his right to share in the other funds and

credits of the tribe shall not be impaired thereby," in addition to the fact

that each Indian on the Nebraska and Kansas reservation was given

the right under said acts and the ruling of the Department to go upon

said reservation in the Indian Territory and have an allotment as

therein provided, forces my mind to the conclusion that all of said Iowa

Indians have equitable rights in the reservation in the Indian Territory which should be considered. If they are denied any right in the

present reservation by Congress they should be protected in some other

way. The construction of said aots must be liberal. As was said by

Chief-Justice Marshall in the case of Worcester vs. The State of Georgia

(6 Peters, 582):

The language used in treaties with the Indfans shall never be construed to their

prejudice, if words be made use of which are susceptible of a more extended meauing

than their plain import as connected with the tenor of their treaty.

It may also be observed that the act of March 2,1889 (25 Stats., 1005),

providing for the appointment of the Cherokee Commission, makes provision for a negotiation ~'with the Cherokee Indians, and all other Indians

owning or claiming lands lying west of the ninety-sixth degree of longitude in the Indian Territory, for the cession to the United States of all

their title, claim, or interest of every kind and character in and to said

lands." Words more apt could not have been chosen to express the

intention of the legislathye will, that said .c ommission should negotiate

lOWA INDIANS IN INDIAN TERRITORY.

23

tor every kind of claim, legal or equitable, of any Indi~ns to the lands

lying within the limits designated by the act. Congress evidently intended that there should be no claim omitted in the negotiation by the

-commission, and to my mind it would be inequitable to place the Indians of Nebraska and Kansas upon any different status than they

would have occupied if the provisions of said acts of 1885 and 1887 had

befln fully executed by the Government.

Th e policy of Congress is plainly indicated in the general allotment

act of February 8, 18~7 (24 Stats., 388), wherein no distinction is made

between reservations created by treaties or acts of Congress and those

ma(le by executive order; but it is expressly provided that "the pur-chase rrioney shall be held in the Treasury of the United States for the

sole use and benefit of the tribe or tribes of Indians to whom such reser. vations belonged."

In my opinion each member of the tribe bas an interest in the funds

<>f tbe tribe, and as the Iowa Indians on the reservation in the Indian

Territory have an interest·in the fund derived from the sale of the reservation in Nebraska and Kansas, it would .seem but simple justice that

those iu Nebraska and Kansas should be permitted to go upon said reservation and share in the proceeds of the sale of the reservation in the

Indian Territory. If, however, it should be deemed impracticable, in

view of the fact that they have never lived on the Indian Territory res

ervation, and that it was set aside by Executive order before the passage of said act of 1855 providing for" other reservation lands," or for

any other reason, to recognize their rights in this specific tract of land,

Congress, to which this agreement must be referred for ratification,

having jurisdiction of the whole subject, will no doubt protect their

rights. Under the treaty of 1866 with the Cherokees Congress can

settle friendly Indians on the Cherol{ee Reservation either east or west of

the ninety ·sixth parallel (Articles XV and XVI, 14 Stats., 803). So that

Congress may yet provide a reservation in the Indian Territory for those

Iowa Indians who do not wish to take allotments under the act of 1885

in Kansas and Nebraska, or it may recognize their rights in the present

Iowa Reservation set apart by Executive order in 1883. The Supreme

Court, in the case of the Choctaw Nation vs. United States, speaking of

the Indians, says :

, ··

From their very weakness and helplessness, so largely due to the course of dealing

of the Federal Government with them and the treaties in which it has been promised,

there arises a dnty of protection, and with it the power. This has always been recognized by the Executive and by Congress and by this court whenever the question

has arisen (119 U.S., 27).

The papers submitted are herewith returned.

Very respectfully,

GEO. H. SHIELDS,

Assistant Attorney- General.

The SECRETARY OF THE IN:I'ERIOR.

o ·

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