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AMOUNTS PAID CREEKS, SEMINOLES, AND CHEROKEES

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For the privilege of settling other Indians on their western lands the Government paid the Seminoles $325,362 for their 2,169,080 acres of land, or 15 cents an acre (14 Stat. 755), and the Creeks $975,168 for their 3,250,560 acres, or 30 cents an acre (14 Stat. 785). When the Government opened to public entry the western lands of the Creeks, Congress, under the act of March 1, 1889, paid them $2,280,857.10 additional (25 Stat. 757), making their total compensation $3,256,025.10, or $1.25 an acre. March 2, 1889, Congress authorized the payment of $1,912,942 additional to the Seminoles for their western lands (25 Stat. 1004-1005), when opened for public entry, making a total of $2,238,304 paid them, or a total of $1.25 an acre. In their 1866 treaty the Cherokees did not cede and convey their western lands outright as did the Creeks and the Seminoles, but by act of March 3, 1893, Congress authorized the payment to the Cherokees of the following sums: $295,736 for the privilege of settling friendly Indian tribes on a portion of their unassigned lands west of the ninety-sixth meridian, and $8,300,000 for the privilege of opening to public entry the residue of such lands, commonly called the Cherokee outlet, making the total amount paid the Cherokees for their western lands $8,595,736, or $1.42 an acre. (27 Stat. 649.)

CHOCTAWS AND CHICKASAWS NOT PAID FOR THEIR WESTERN LANDS

The treatment which the Government accorded the Creeks, Seminoles, and Cherokees presents a sharp contrast to its treatment of the Choctaws and Chickasaws. When the Government opened to public entry the lands in Greer County and allotted and sold the lands in the Kiowa, Comanche, and Apache Reservations and those in the reservation of the Wichitas and affiliated bands, all located in the leased district area covered by this bill, the Choctaws and Chickasaws received no payment therefor. They did, however, receive compensation for the Cheyenne and Arapahoe Reservations.

CHOCTAWS AND CHICKASAWS ENTITLED TO SAME TREATMENT AS OTHER

TRIBES

Since the purpose of the Government in negotiating all of the 1866 treaties with the Five Civilized Tribes was to procure the cession of their western lands for the location of other Indians (Report of Committee on Indian Affairs, 1865, p. 34), and since the language of cession in the several treaties is practically the same, equity and fair dealing require that the Government give to the word "cede” in the third article of the 1866 treaty with the Choctaws and Chickasaws the same construction that it gave to the words “cede and convey" in the third article of the Seminole and Creek treaties, and pay the Choctaws and Chickasaws for the residue of their western lands. The obligation to accord the Choctaws and Chickasaws the same treatment that it gave the other three tribes is incumbent upon the Government, since the relation existing between it and these two tribes is that of guardian and wards.

EXECUTIVE CONSTRUCTION

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The Choctaws and Chickasaws assert that their understanding of article 3 of the 1866 treaty was concurred in by the executive branch of the Government from the date of said treaty until about 1891. One of the cardinal rules of statutory construction is that the construction placed upon a statute by the officers charged with its execution is entitled to great consideration. (36 Cyc. 1140.) Within a few years after the execution of the 1866 treaties, white settlers, claiming that the western lands ceded by the Five Civilized Tribes to the Government were public lands, attempted to settle upon portions of them, including the Leased District area. Whereupon the executive department of the Government, in a series of public warnings and statements, extending from 1879 to 1890, and consisting of proclamations of the President and statements of the Secretary of the Interior and Commissioner of Indian Affairs, declared that these lands, including the Leased District domain, had been set apart by the Government in trust for the settlement of Indians and could not be used for any other purpose. (Choctaw Nation v. United States, 34 Ct. Cls. 141-146.) Excerpts from statements of two Secretaries of the Interior and one Acting Commissioner of Indian Affairs are sufficient to show the position of the Government during that period.

May 1, 1879, Hon. Carl Schurz, Secretary of the Interior, in a letter to the Secretary of War, with reference to said lands, declared

The title acquired by the Government by the treaties of 1866 was secured in pursuance and furtherance of the same purpose of Indian settlement, which was the foundation of the original scheme.

That purpose is expressly declared in the said treaties. The cessions of the Creeks and Seminoles are stated to have been made “in compliance with the desire of the United States to locate other Indians and freedmen thereon." These worois may be held to create a trust equivalent to what would have been imposed had the language been “for the purpose of locating Indians and freedmen therein."

The lands ceded by the Choctaws and Chickasaws were by article 9 of treaty of June 22, 1855, “leased to the United States

for the permanent settlement of the Wichitas and such other tribes or bands of Indians as the Government may desire to locate therein.” The treaty of 1866 substitutes a direct purchase for the lease, but did not extinguish or alter the trust. In 1867 the Kiowas, Comanches, and Apaches were settled upon these lands. In 1869 the Cheyennes and Arapahoes were located hy Executive order, the Wichitas being already upon a portion of the same prior to the purchase.

(S. Doc. No. 146, 46th Cong., 1st sess.; 34 Ct. Čls., supra, 141.) February 17, 1882, Hon. Samuel J. Kirkwood, another Secretary of the Interior, answering a resolution of the Senate as to the status of these lands, forwarded a statement of the Land Office, wherein it was said:

The treaties by which the United States acquired title to any of the lands in the Indian Territory or obtained the conditional right to control the disposal of any of said lands were the treaties with the Seminoles of March 21, 1866, with the Choctaws and Chiekasaws of April 28, 1866, with the Creeks of June 14, 1866, and with the Cherokees of July 19, 1866. (S. Doc. 146, 56th Cong., 1st sess.)

The Choctaw and Chickasaw cession of April 28, 1866 (14 Stats. 769), was by the tenth section thereof made subject to the conditions of the compact of June 22, 1855 (11 Stats. 613), and by the ninth article of which it was stipulated that the lands should be appropriated for the permanent settlement of such tribes or bands of Indians as the United States might desire to locate thereon. (Ib.)

The title of the United States to lands in the Indian Territory is, as heretofore shown, subject to specific trusts, and it is not within the lawful power of either

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the legislative or executive departments of the Government to annihilate such trusts or to avoid the obligation arising thereunder. Such trusts are for the benefit of Indian tribes and Indian freedmen. (Ib.)

September 16, 1890, George Chandler, Acting Secretary of the Interior, transmitted to the chairman of the House Committee on Indian Affairs an exhaustive report by Mr. R. V. Belt, Acting Commissioner of Indian Affairs, in which the latter analyzes the claim of the Choctaws and Chickasaws. Among other things, the report contains the following:

It is possible that the commission, when it came to negotiate with the Choctaws and Chickasaws, may have omitted from the treaty with these Indians a similar condition and reservation regarding the purposes for which the lands were to be used, because of the fact that the United States had secured by a prior treaty a lease, which amounted to a permanent lease, of the lands in question for Indian purposes, for which, together with other considerations, it had paid the sum of $800,000. Considering this fact, the commission negotiating the treaty may have considered the payment of the $300,000 additional, as provided for in the treaty of 1866, a sufficient compensation for an absolute cession of all right, title, and interest that the Choctaws and Chickasaws had in and to the said leased district. This conclusion, however, can not be fairly reached when the record of the negotiations is fully considered; for we have already seen that these Indians accepted the terms proposed by the commission, upon which the treaties would be negotiated; and these very terms indicate the purpose for which the ceded lands were to be used. And it shows quite clearly that the Indians understood that they were parting with whatever right, title, and interest remained to them in the "leased district” to the United States, to be used for the location and settlement of other Indians thereon. The negotiations made about that time by the United States with Indian tribes show very conclusively that a policy had been carefully mapped out for the acquisition by the United States of the right to locate other Indians upon portions of the lands owned and occupied by the Five Civilized Tribes in the Indian Territory. I am inclined, therefore, to the opinion that the Choctaw and Chickasaw Indians have good ground for the claim that the United States took the land ceded by them upon the trust to settle other Indians and freedmen thereon, as the policy upon which the negotiations were made clearly indicated its desire and purpose to do. While there are clearly no words of limitation in the treaty of 1866 as to the use to which the ceded lands should be put by the United States, the history of the negotiations preceding and resulting in that treaty and the subsequent treatment of the subject quite clearly indicate that the Choctaws and Chickasaws have good grounds for claiming that they understood that the lands were to be used for the location of other Indians and freedmen thereon. (Files of Indian Office.)

The foregoing statements are interpretations which the Government placed upon its own treaties and are of special importance because they were made at a time not far removed from the execution of the treaties and are practically its contemporaneous interpretations of those treaties. It is also a rule of statutory construction that the construction placed upon a statute at or shortly after its enactment is entitled to great weight. (36 Cyc. 1139.)

CONGRESSIONAL CONSTRUCTION

The construction placed by a subsequent Congress upon an act of a former Congress is also entitled to the highest consideration. (Ib. 1142, 1143.) Immediately after the 1866 Choctaw and Chickasaw treaty was executed, a treaty was made with the Delaware Indians (14 Stat. 793), the preamble of which is:

Whereas the United States have, by treaties negotiated with the Choctaws and Chickasaws, with the Creeks, and with the Seminoles, Indian tribes residing in said Indian country, acquired the right to locate other Indian tribes within the limits of the same.

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The above language shows that at the time of making the 1866 treaties with the Five Civilized Tribes and other western Indians, the purpose of the Government was to acquire portions of their lands for Indian occupancy only.

Congress construed article 3 of the 1866 treaty of the Choctaws and Chickasaws when it had under consideration the act appropriating money to pay the Choctaws and Chickasaws for the Cheyenne and Arapahoe Reservation. In that act it said that the Cheyenne and Arapahoe lands had been ceded in trust to the Government by article 3 of that treaty, the pertinent part of the act being:

And the sum of $2,991,450 be, and the same is hereby, appropriated out of any money in the Treasury not otherwise appropriated, to pay the Choctaw and Chickasaw Nations of Indians for all the right, title, interest, and claim which said nations of Indians may have in and to certain lands now occupied by the Cheyenne and Arapahoe Indians under Executive order; said lands lving south of the Canadian River, and now occupied by the said Cheyenne and Arapahoe Indians, said lands have been ceded in trust by article 3 of the treaty between the United States and said Choctaw and Chickasaw Nations of Indians, which was concluded April 28, 1866, and proclaimed on the 10th day of August, the same year, and whereof there remains, after deducting allotments as provided by said agreement, a residue ascertained by survey to contain 2,393,160 acres

(Sec. 15, Indian appropriation act, approved March 3, 1891, 26 Stat. L. 989, 1025, ch. 543.)

In paying the Choctaws and Chickasaws for the Cheyenne and Arapahoe Reservation the Government thereby admitted that the lands in that reservation were a part of the leased district domain and belonged to the Choctaws and Chickasaws. The status of the lands referred to in this bill is identically the same as that of the lands in the Cheyenne and Arapahoe Reservation. If the Government was liable to the Choctaws and Chickasaws for those lands, it is equally liable to them for the remainder of the leased district lands.

It should be remembered that at the time of the passage of the act authorizing payment for the Cheyenne and Arapahoe Reservation only 25 years had passed since the 1866 treaty. Members of Congress were then undoubtedly familiar with the understanding of the Choctaws and Chickasaws and the Government toward the 1866 treaty, namely, that the leased district lands had been ceded in trust.

After passage of the act for payment for the Cheyenne and Arapahoe Reservation, President Harrison, on February 18, 1892, sent a special message to Congress advising against payment of the appropriation. His message was referred to the Committees on Indian Affairs of the Senate and House. The Senate Indian Committee, on April 11, 1892, submitted its report, the following being an excerpt therefrom:

Your committee thinks that if an attempt shall be made to convert the trust estate of the United States into an absolute estate, without compensation to the Choctaws and Chickasaws for their interest in said lands, and to transfer the lands to citizens of the United States, the Choctaws and Chickasaws will have the right to regard such action on the part of the United States as a forfeiture of the trust estate now held by the United States therein, and to assert the right of the Choctaws and Chickasaws to resume the full ownership and actual possession of said lands, and also to resort to such measures as shall be proper to test the validity of any transfers of said lands to white men made or attempted by the executive department of the Government. Your committee, therefore, recommends the adoption of the following resolution of the Senate:

Resolved, That for reasons set forth in the report of the Committee on Indian Affairs upon the President's message of February 18, 1892, upon the appropriation of March 3, 1891, for payment to the Choctaw and Chickasaw Nations for their interest in the Cheyenne and Arapahoe Reservation, in the Indian Territory,

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submitted with this resolution, that it is the opinion of the Senate that there is no sufficient reason for interference in the due execution of the law referred to. (S. Rept. 552, 52d Cong., 1st sess.)

The House Indian Committee also made substantially the same report and recommended adoption of the same resolution. So strongly convinced was the Congress of the equity of the claim that it disregarded the recommendation of the President and by solemn resolution, after extended debate, adhered to its former act and directed payment for those lands to the Choctaws and Chickasaws, thereby on two separate occasions giving legislative approval of the trust character of the leased district lands.

WICHITA AND AFFILIATED BANDS TREATY

While the Congress had under consideration the treaty with the Wichita and affiliated bands of Indians to allot portions of their lands and to open the remainder to public entry, the Choctaws and Chickasaws asked compensation for those lands, because they were part of the leased district. Congress referred their claim to the Court of Claims, authorizing them to sue the Government for their interest in such lands. March 21, 1899, that court decided in favor of the Choctaws and Chickasaws. (Choctaws et al. v. U. S., 34 Ct. Cls. 17.) Paragraphs 24 and 49 of the syllabus of the opinion are as follows:

XXIV. Although the language of article 3 of the treaty of 1866 transferred the legal title of the leased district to the United States, the situation and statements of the parties, the extent and value of the grant, the consideration, the benefits conferred, and the beneficiaries designated may be considered in deter whether the cession was attended with an underlying trust.

XLIX. The cession in the treaty of 1866 was not intended to divest the Choctaws and Chickasaws of all their interest in the leased district, but was intended to enlarge the scope of the ninth article of the treaty of 1855 by authorizing the settlement of certain Indians who were excluded by that article. Hence a trust must be implied in their favor under the terms of the grant.

The Court of Claims held in substance that the United States held the leased district lands in trust for Indian occupation only, and that when the lands were abandoned for that purpose they should be held in trust by the Government for the Choctaws and Chickasaws, or if sold, the proceeds belonged to the tribes. (U. S. v. Choctaw Nation, 179 U. S. 494, 501, 502.) The Supreme Court, on December 10, 1900, reversed the Court of Claims, dismissing the petition of the Choctaws and Chickasaws. It held that:

It is thus clear that the Court of Claims was without authority to determine the rights of parties upon the ground of mere justice or fairness, much less under the guise of interpretation, to depart from the plain import of the words of the treaty. Its duty was to ascertain the intent of the parties according to the established rules for the interpretation of treaties. Those rules, it is true, permit the relations between Indians and the United States to be taken into consideration. But if the words used in the treaty of 1866, reasonably interpreted, import beyond question an absolute, unconditional cession of the lands in question to the United States free from any trust, then the court can not amend the treaty or refuse to carry out the intent of the parties, as gathered from the words used, merely because one party to it held the relation of an inferior and was politically dependent upon the other, or because in the judgment of the court the Indians may have been overreached. (Ib. 535.)

It further held that the cession of the leased district lands by article 3 of the 1866 treaty was absolute and not in trust, and that by the word “cede" in that treaty the Choctaws and Chickasaws conveyed

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