APPENDIX.

APPENDIX A.

THE CHEROKEE OUTLET.

FEBRUARY 13, 1891. SIR: On January 17, 1891, Mr. Mansur introduced in the House of Representatatives a bill which in effect proposed to appropriate $7,489,718.72, to pay the Cherokee Nation at the rate of $1.25 per acre, for any title, claim or interest they might have to land within what is known as the Cherokee Outlet. If the Cherokees upon due notice refuse to accept the provisions of said act, the President is authorized, within ninety days after ascertainining such refusal, by proclamation to declare said outlet to be incorporated into and be a part of the Territory of Oklahoma, and subject to the laws thereof, and thereafter said lands are to be opened to settlement under the homestead and town site laws on conditions prescribed.

This bill was referred to the Committee on Territories, and by you inclosed to this Department with a request for my views as to the desirability for a favorable report on the measure and passage thereof by Congress at this session. On receipt of this request the matter was inadvertently referred by the Assistant Secretary to the Commissioner of Indian Affairs; and herewith is sent a copy of the report of that officer. By way of premise the Commissioner states that no action of the executive officers of the Government, nor the provisions of treaties with the Cherokees prior to that of May 6, 1828 (7 Stats., 311), have any bearing upon the present status of the Cherokee Outlet. After referring to that and other treaties, and the citation of decisions supposed to be applicable to the questions involved, he arrives at the conclusion that up to the date of the treaty of July 19, 1866 (14 Stats., 799), "the Cherokees had a full and complete fee-simple title to the lands embraced in the Cherokee Outlet."

He then considers the effect of the treaty of 1866, and concludes that it does not change or modify the title to said lands, but simply gives the United States the right to settle friendly Indians thereon to whom the Cherokees were to sell at a price to be determined; and he holds, as to such lands as have not been so sold, "they are absolutely private property, in which the United States has no more interest than has a State in private lands which are liable to escheat." He has no doubt that the appropriation of this land in accordance with the provisions of the bill, without the assent of the Cherokees, would be decided on appeal to the courts to be "illegal and void," and for the Government to open the outlet in the manner proposed would be "to disregard its solemn obligations and violate its faith in order to accomplish that purpose."

The careful consideration which I have given to the subject does not sustain the conclusions arrived at by the Commissioner, for, in writing to Gen. Fairchild, chairman of the Cherokee Commission, under date of October 26, 1889, in relation to the purchase of the claim of the Indians to this outlet, I said:

"The United States must be sovereign within the limits of its own territory. It is conscious of a purpose to wrong no one, and yet to allow its own people to expand over the land that is theirs; to give to the Indians of the Cherokee Nation an income

not only most munificent, but permanent, for the outlet to which the Government already has fee-simple title, subject to the use its title indicates, and upon which it might settle adverse tribes without paying the Cherokees there for more than would be due under appraisement already made than 47.49 cents per acre."

After reading the report of the Commissioner, examining the treaties and decisions cited by him and further consideration of the subject, I see no reason for changing the views then expressed as to the title of the outlet. Therefore in sending you a copy of his letter it seems proper that the reasons which prevent me from coming to the same conclusions should be stated; and also that the many errors of law and fact into which the Commissioner has fallen should be pointed out.

It is not necessary in this connection to rehearse the well-known history of, and all the dealings of the United States with, the Cherokees. It is sufficient to say that prior to 1817 all of the Cherokees resided east of the Mississippi. By treaty of that year they ceded certain of their lands to the United States, and it was agreed that such of them as would settle west of the Mississippi on the Arkansas River should receive their due proportion, acre for acre, in exchange for the ceded lands. The treaties were to continue in full force with those remaining east as well as those going west of the Mississippi. The Government was anxious, for good reasons, to locate them altogether upon the Arkansas River, and many efforts were made to that end. In March, 1818, President Monroe wrote to the chief of the Arkansas branch as follows:

"It is my wish that you should have no limits to the west, so that you may have good mill seats, plenty of game, and not be surrounded by the white people."

And on October 8, 1821, Mr. Calhoun, the Secretary of War, under whose charge the Indians were, wrote to the chiefs of the Arkansas Cherokees as follows: .

"It is to be always understood that in removing the white settlers from Lovely's purchase, for the purpose of giving the outlet promised you to the west, you acquire thereby no right to the soil, but merely to an outlet, of which you appear to be already apprised, and that the Government reserves to itself the right of making such disposition as it may think proper with regard to the salt springs upon that tract of country."

Then follows the treaty of May 2, 1828 (7 Stats., 311), in the preamble of which special reference is made to "the pledges given them by the President of the United States and the Secretary of War of March, 1818, and 8th October, 1821, in regard to the outlet to the west, and as may be seen by referring to the records of the War Department."

This shows that the Commissioner's statement, that "neither the action of the executive officers of the Government, nor the provisions of the treaties with the Cherokee Nation, concluded prior to the treaty of May 6, 1828, have any bearing upon the status of the Cherokee Outlet," is erroneous. On the contrary, such executive action was the basis of the treaty itself.

By section two of the treaty, the possession of 7,000,000 acres is guaranteed to the Cherokees forever by specified bounds, and, "in addition to the 7,000,000 of acres, thus provided for and bounded, the United States further guarantee to the Cherokee Nation a perpetual outlet west, and a free and unmolested use of all the country lying west of the western boundary of the above-described limits, and as far west as the sovereignty of the United States and their right of soil extend."

This is the first grant of the outlet west, and it must be apparent that at this time it was the purpose of the United States only to grant, and the Cherokees expected only to get in the language of Mr. Calhoun, made a part of the treaty by reference "no right to the soil, but merely to an outlet;" a mere right to pass to and from the domain west, an easement or franchise only.

In consequence of the selection by the Creek Indians of a portion of the lands of the Cherokees, on February 14, 1833 (7 Stats., 414), another treaty was made, whereby the lands of the Cherokees are again defined, with the same provision as to the outlet; with, however, a reservation to the United States to permit other Indians to

get salt thereon, and the stipulation that letters patent are to be issued as soon as practicable "for the land hereby guaranteed."

By section 5 of this treaty it is said:

"These articles of agreement and convention are to be considered supplementary to the treaty, before mentioned, between the United States and the Cherokee Nation west of the Mississippi, dated 6th of May, 1828, and not to vary the rights of the parties to said treaty; and, further, that said treaty is inconsistent with the provisions of this treaty, now concluded, or these articles of convention and agreement.”

It must be apparent that this treaty did not change what was before an easement into a fee simple.

By a further treaty of December 29, 1835 (7 Stats., 478), in consideration of $5,000,000, the Cherokees ceded to the United States all their lands east of the Mississippi.

In article 2 reference is made to the agreements in the two preceding treaties to convey the 7,000,000 acres and the guarantee of the outlet in the same terms as theretofore; it is then agreed that, in consideration of $500,000, the United States shall convey in fee simple to the Cherokees an additional tract of land, amounting to 800,000 acres, part of the Osage Reserve in Kansas, and somtimes known as the Neutral Lands. And by section 3 it was provided:

"The United States also agree that the lands above ceded by the treaty of February 14, 1833, including the outlet, and those ceded by this treaty, shall all be included in one patent, executed to the Cherokee Nation of Indians by the President of the United States, according to the provisions of the act of May 28, 1830.”

The act of 1830 here referred to authorized the President to exchange lands with the Indians residing east of the Mississippi for lands west thereof, and to issue to them, if they desire, a patent for the same; said lands to revert to the United States "if the Indians become extinct or abandon the same."

On December 31, 1838, a patent was issued to the Cherokees, and particular attention is called to its recitals:

"Whereas, by certain treaties made by the United States of America with the Cherokee Nation of Indians of the sixth of May, one thousand eight hundred and twenty-eight; the fourteenth of February, one thousand eight hundred and thirtythree; and the twenty-ninth of December, one thousand eight hundred and thirtyfive, it was stipulated and agreed on the part of the United States that, in consideration of the promises made in the said treaties respectively, the United States should guarantee, secure, and convey by patent to the said Cherokee Nation certain tracts of land; the descriptions of which tracts and the terms and conditions on which they were to be conveyed are set forth in the second and third articles of the. treaty of the twenty-ninth of December, one thousand eight hundred and thirty-five, in the words following." (Col. 9, Records of Patents, G. L. O., p. 34).

Then are quoted at length articles 2 and 3 of said treaty, followed by a description of the tract of 7,000,000 acres and of the outlet as surveyed, and also of the tract of 800,000 acres; then follows the granting clause, which recites that "in execution of the agreements and stipulations contained in said several treaties," the United States give and grant to the Cherokee Nation the described land, to have and to hold the same, "with the rights, privileges, and appurtenances thereunto belonging, to the said Cherokee Nation forever;" subject, however, to the right reserved to permit other Indians to procure salt, which has been ascertained to be within the limits prescribed for "the outlet agreed to be granted;" "and subject also to all other rights reserved to the United States in and by the articles herein before recited, to the extent and in the manner in which the said rights are so reserved;" and subject also to the condition of reversion as provided by the act of May 28, 1830, supra. All of these conditions and recitals are omitted from the Commissioner's report, except that referring to the act of May 28, 1830.

It seems to me evident that it was not intended by the patent to convey to the Cherokees any other interest or estate in the outlet than was originally given them.

It is expressly stated to be made subject to the reserved rights of the United States, to the extent and in the manner reserved. What those reservations are is made plain by references and recitals. Article 2 of the treaty of 1835 is recited at length, and this on its face purports to be, and is, a recital from the treaty of 1828 and of 1833 (supra). This last treaty declares it is supplementary, and is not intended to vary the rights of the parties to the former; and that treaty shows the grant of the outlet to have been made subject to the conditions stated by Mr. Calhoun, Secretary of War, in his letter of October 8, 1821, where he declares the grant is made upon the condition, which the Indians well understood, that they are to "acquire thereby no right to the soil, but merely an outlet."

So that, by all rules of construction, in contemplation of law, the letter of Mr. Calhoun is as much a part of the condition of the patent as if it were spread at length therein, and it was not intended by the patent to attempt to convey to the Cherokees a larger estate than was originally granted them.

But if such intention existed, the patent is ineffective to convey a larger estate than was given by the grant. A patent is not a grant, it is but evidence thereof; a muniment of title, and not the title itself. It can not enlarge or change a grant, nor diminish it by its recitals; where error is committed in its recitals, the patentee only takes the estate originally granted. (E. N. Marsh, 5 L. D., 96; Gazzam v. Phillips, 20 How., 372; Cragin v. Powell, 128 U. S., 692.).

The Commissioner seems to have been misled by the general terms in which the habendum clause of the patent is couched, and to have lost sight of the conditions of the original grant, which are iterated and reiterated in the several treaties, and finally so referred to in the patent so as to make them part thereof. The guaranty was of "a perpetual outlet," and when the Government proceeded to give its deed for the same it was very properly stated therein that the land was so granted "forever." This is very different from conveying a fee-simple title. The fact that the right of way or perpetual outlet was embraced in the same clause and covered by the very language whereby the fee-simple title to the other two tracts was intended to be conveyed no more makes the easement a fee simple than that the converse would be true. Both titles were in perpetuity, but of different degrees. In the one case the patent evidenced the fact that the fee-simple title had passed from the United States, and in the other that the easement had passed while the fee remained in the United States.

The case of Holden v. Joy (17 Wall., 211), cited by the Commissioner to sustain his views, in no respect does so. The 800,000-acre tract heretofore mentioned, and known as the Neutral Lands, having been ceded by the Cherokees to the United States to sell and to hold in trust the proceeds for them, the court was considering only the title to that particular tract, and held that the Indian title thereto was fee simple. Mention of, or the slightest reference to, the outlet is not made throughout the decision. It is an entire misconception of its purport on the part of the Commissioner to quote it as authority to sustain the proposition that the title of the Indians to the outlet is a fee simple. Even the citation made by him from the decision to support the proposition that the condition in the patent as to the abandonment by the In dians was void does not sustain him, as that question was not decided by the court, but was expressly reserved, as would have been shown if he had quoted the remainder of the sentence.

The case of the United States v. Reese, in 5 Dill., 405, referred to him as in 8 Cent. L. J., throws no light on the subject. The question there was whether the Indians had a fee-simple title to lands within the Cherokee Nation. The court so held, and discharged a party charged with timber trespass, under section 5388, Revised Statutes, upon the 7,000,000-acre tract. The question of title to the outlet was not involved.

In the case of the United States v. Rogers (23 Fed. Rep., 657) Judge Parker, after reading and quoting from the patent of December 31, 1838, says, the title of the

Indians to the outlet is "substantially the same kind of a title" as that by which they held their other lands, "the only difference being that the outlet is encumbered with the stipulation" that other Indians may be permitted to get salt thereon. He maintained the jurisdiction of the district court of the western district of Arkansas in the matter, and discharged the party charged with arson for want of jurisdiction over the lands in the outlet, which he declared to be "set apart and occupied" by the Cherokees. But in this case the judge, in the examination leading up to his opinion on the question of title, satisfies himself by stating in a general way that the outlet was granted by the treaties, and then looks only to the patent to see what was granted, and quotes from the descriptive and habendum clauses thereof, and does not quote its recitals from the treaties.

This somewhat cursory examination of the question of title much weakens the force of that decision. Besides, the question of the title by which the Cherokees held the outlet, was not directly involved in that case, as the learned judge says, (p. 665): "By the treaties and patent above referred to the Cherokee outlet was beyond question set apart to the Cherokees, and to that extent was in a condition the converse of that which is necessary to attach it to the district of Kansas. It matters not what may have been the extent of their title. If they had a title of any degreee whatever, it was set apart to them." He then showed that it was "occupied" by the Cherokees, and therefore concluded that "it does not come within the designation of Indian country not set apart and occupied by the Cherokees;" and upon that ground discharged the prisoner.

In the case of Wolf (27 Fed. Rep., p. 611), cited by the Commissioner, the question was one of conspiracy, to defraud the Cherokee Nation out of certain moneys, and the same judge, in delivering his opinion, referred to the Rogers case, just quoted, as determining that the Indians had a fee-simple title to the outlet, though that question was not directly involved in the case.

The Commissioner quotes the case of United States v. Soule (30 Fed. Rep., 918) as deciding "that no distinction was made in the granting clause (treaty of 1833) between the 7,000,000-acre tract and the outlet." In this he is mistaken. Judge (now Mr. Justice) Brewer, of the United States Supreme Court, who delivered the opinion of the United circuit court of the district of Kansas in that case, after referring to the proviso in the treaty of 1833 relative to the issue of letters patent, then says:

"In pursuance of this treaty, patent was issued for all the lands including the outlet west. No distinction was made in the granting clause between. the 7,000,000 acre tract and the outlet west."

By every rule of grammatical construction it is the granting clause of the patent to which the judge here refers, and not the treaty of 1833, as interpolated by the Commissioner.

In this last case the judge of the circuit court refers to and dissents from the former decision of Judge Parker in the Rogers case, both on the question of the jurisdiction of the district court of Arkansas over the outlet and the estate of the Indians in the outlet. In passing upon this point, Judge Brewer examines the character of that estate. Going back to the treaty of 1828, he traces the title down, and sums up his conclusions as follows:

"Manifestly Congress set apart that 7,000,000 acres as a home, and that was thereafter to be regarded as set apart and occupied, because,' as expressed in the preamble of the treaty, 'Congress was intent upon securing a permanent home.' Beyond that the guaranty was of an outlet-not a territory for residence, but for passage ground-over which the Cherokees might pass to all the unoccupied domains west. But while the exclusive right to this outlet was guaranteed, while patent was issued conveying this outlet, it was described and intended obviously as an outlet and not as a home. So, whatever rights of property the Cherokees may have in this outlet, it was not territory set apart as a home, and is not territory within the language of the act of 1883, 'set apart and occupied' by the Cherokee tribe."