WAR DEPARTMENT, Washington City, April 30, 1879. SIR: In compliance with your request, I have the honor to inform you that there are troops available, which can be used to support the authorities of your Department in removing trespassers from the Indian Territory, and in carrying out the orders of the President contained in his recent proclamation. At Fort Sill there are 124 men of the Fourth and 109 men of the Tenth Cavalry, and 63 men of the Sixteenth Infantry. At Fort Reno there are 134 men of the Fourth Cavalry and 34 men of the Sixteenth Infantry. At Fort Supply there are 59 men of the Fourth Cavalry. At Fort Elliott there are 55 men of the Fourth Cavalry, 54 men of the Tenth Cavalry, and 91 men of the Nineteenth Infantry. At Fort Gibson there are 41 men of the Sixteenth Infantry. There are also troops at Forts Riley, Wallace, and Hays. Orders will at once be issued to the commander of that department, General Pope, to respond to any call made upon him for assistance in pursuance of any statute authorizing the use of the troops. You are aware that under the act of June 18, 1878, no part of the Army can be used as a posse comitatus or otherwise for the purpose of executing the laws except in such cases as are expressly provided for by the Constitution or by act of Congress. I will thank you to point out the provisions of the statute under which you think the troops may be used in this instance. My attention has been called to sections 2147, 2149, and 2150. The first authorizes the use of the military to remove from the Indian country all persons found therein contrary to law, and would doubtless cover the case, assuming that there is a law which forbids settlement in the Indian Territory. I will also thank you to indicate the points at which you think troops should be stationed in order to be at hand when needed for the purpose indicated. I have the honor to be, very respectfully, &c., GEO. W. MCCRARY, The Hon. the SECRETARY OF THE INTERIOR. Secretary of War. The Hon. the SECRETARY OF WAR: DEPARTMENT OF THE INTERIOR, SIR: I am in receipt of your request of the 30th ultimo, for a reference to the laws and statutes of the United States which declare the Indian Territory under its present boundaries to be "Indian country," so as to subject it to the intercourse laws, and make it lawful to expel intruders therefrom by military force if necessary, under section 2147 of the Revised Statutes. The whole of this Territory was included in the statute of March 30, 1802, declaring what portion of the United States shall be deemed "Indian country," which was re-enacted in terms by the first section of the act of June 30, 1834. (Stats., 4, p. 729.) The intervening act of May 28, 1830, authorized the President of the United States to cause so much of any territory west of the Mississippi, not included in any State or organized Territory, as he might judge to be necessary, to be set off and divided into distncts for the reception of Indian tribes. This Territory was specially selected and reserved by the Executive for the purposes prescribed, and has ever since been known and recognized as the "Indian country," no States nor organized Territories having been created therein. In the mean time, by treaty of May 6, 1828, article 2 (Stats., 7, p. 311), which was reaffirmed by treaty of December 28, 1835, (Stats., 7, p. 479), the United States ceded to the Cherokee Nation what is now known as the Cherokee country in said Territory, and the jurisdiction of which is still retained by said nation under treaty of July 19, 1866 (Stats., 14, p. 799, art. 16), although a large portion of said lands are located by other Indians under the provisions of the latter treaty. The next cession, in order of time, was made to the Creek Nation by treaty of February 14, 1833 (Stats., 7, p. 417, art. 2). This tract was situated immediately south of the Cherokee lands, extending westward to the Mexican boundary. Next came the Choctaw and Chickasaw cession of June 22, 1855 (Stats., 11, p. 611), by which the residue of what is now the Indian Territory was ceded to those tribes. By article 4 of the Creek treaty of February 14, 1833, above cited, provision was made for the Seminoles, and by treaty with the latter of March 2, 1833 (Stats., 7, p. 423), they were settled upon that portion of the Creek lands lying between the north and south forks of the Canadian River. By these treaties title was guaranteed to the several tribes, and it was provided that the lands should never be included within the territorial limits or jurisdiction of any State or Territory, but should remain subject to the intercourse laws, which laws have, as before stated, continued in force in all parts of the Territory to the present time. 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 was the removal of Indian tribes from the limits of the political State and Territorial organizations, and their permanent location upon other lands sufficient for the needs of each tribe. These lands being ample in area for the purpose, it has become a settled policy to locate other tribes thereon as fast as arrangements can be made, and provisions have been constantly made by treaties, agreements, and acts of Congress to effect these objects. 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 words must 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 thereon." The lands ceded by the Choctaws and Chickasaws were by article 9 of the treaty of June 22, 1855, "leased to the United States" * * "for the permanent settlement of the Wichita and such other tribes or bands of Indians as the Government may desire to locate therein." The treaty of 1866 substituted 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 by treaty. In 1869 the Cheyennes and Arapahoes were located by executive order, the Wichitas being already upon a portion of the same prior to the purchase. The executive order of August 10, 1869, for the Cheyennes and Arapahoes also covers all that portion of the Creek and Seminole lands west of the 98th meridian and south of the Cimarron River. It will thus be seen that the Indian country, as defined by statute, embraces the whole Indian Territory. No part of it has been brought under the operation of general laws, or made subject to settlement as public lands. It is attached as "Indian country," for the enforcement of the intercourse laws alone, to the western district of Arkansas, by section 533 of the Revised Statutes. It is expressly named as Indian country in the act of March 3, 1875, "to establish the boundary between the State of Kansas and the Indian country," which recognizes the proper closing of the surveys of the public lands upon its boundaries, as originally marked. The consolidated provisions of the intercourse laws embrace two entire chapters of the Revised Statutes, sections 2111 to 2157, inclusive. The fact that they have not in terms re-enacted the boundaries of the Indian country should not, in my judgment, be held to destroy its previously recognized location, as the direct effect of such conclusions would render inoperative the entire legislation provided for its government. Its recognition by the revised compilation and by subsequent statutes has heretofore been noted. The persons now attempting settlement therein allege the acquisition of these lands in 1866 as the date when they became subject to the general laws of the United States. Thirteen years have now elapsed, and Congress has made no attempt to provide for them the necessary machinery for the execution of the general laws; but on the contrary, by recent enactment, has expressly provided for the continued jurisdiction of the district court of Western Arkansas. This must be held to negative any assumption that they are released from the special Indian purposes for which they were acquired and to which they have been continuously devoted. For the views of the judiciary department, see opinion of August 12, 1873 (14th Opinion, 290), where the whole subject is elaborately considered, and which is in entire accord with the foregoing conclusions, so far as it relates to the region of the country in question. Respecting the location of troops for the purposes indicated, I have the honor to state that the information in hand indicates a general movement from Coffeyville, Kans., via Old Whiskey Trail and Bruner's Crossing of the Arkansas River, to the Sac and Fox Agency; thence to the Cimarron River, so as to reach the lands to the southward of the stream west of the 96th meridian. Also one from Arkansas City and one from Wichita to reach the same lands. Troops should be so placed near the north line of the Indian Territory as to cover each of these routes, and also at such points near the Sac and Fox Agency as to turn back and remove any parties who may have already entered the Territory. It is desired that such of the intruders as are inclined to retire peacefully and willingly from the Indian Territory should be conducted to the boundary of the Territory and al lowed to proceed thence without restraint; and that the leaders in the movement, Mr. Carpenter in particular, and such persons as indicate a spirit of resistance, should be arrested and turned over to the civil authorities of the United States at Fort Smith, Ark., for trial. Very respectfully, C. SCHURZ, Secretary. DEPARTMENT OF THE INTERIOR, SIR: I have the honor to submit herewith a letter of this date addressed to the Department by the Commissioner of Indian Affairs, calling attention to the statement of facts presented therein in relation to the organized movement of large bodies of unauthorized people into the Indian Territory, which has been the subject of previous correspondence from this Department. In view of the statements contained in the letter of the Commissioner and the evident necessity for immediate and efficient action, I respectfully request that the military instructions may be issued under authority of the Executive as the Commander-inChief of the Army of the United States. I have the honor to be, sir, very respectfully, your obedient servant, The PRESIDENT, C. SCHURZ, Secretary. Executive Mansion. DEPARTMENT OF THE INTERIOR, SIR: In connection with the movement in progress to take possession of the Indian Territory, I desire to call your attention to the following facts: It appears from communications received at this office that parties are entering said Territory on most of the roads leading thereto from the States of Kansas and Missouri. Large numbers are reported by the agent to have entered and settled upon the Quapaw lands, in the northeastern corner of the Territory, within the last few days. It is evident from the fact that these parties are settling upon the Quapaw Reservation, near the north line of the Territory, that it is not, as at first indicated, their intention to settle alone on the lands designated in the Boudinot circular as public lands, but to take possession of the whole Territory. There are on or near the north line of the Territory but two Indian agencies, the Quapaw and the Osage. It is obvious that the supervision of these agents can extend but a short distance in any direction from their respective agencies. It will therefore appear that it is impossible for them to supervise so great an extent of territory if their jurisdiction extended to the same. Therefore the order issued by the military authorities, as indicated by the telegram herewith from General McNeil, that the military are to act in the removal or prevention of intruders only upon the written application of Indian agents, after notification to the intruders, is impossible of execution. I beg leave to suggest that the attention of the President be called to this matter, with the recommendation that the commanding officer of the district be directed to station troops upon the various roads entering the Indian Territory, a short distance within the boundary of the same, with instructions to arrest and return to the States all parties who appear to be unlawfully entering the Territory for the purpose of settlement. Troops should also be stationed near the Sac and Fox agency, with similar instructions. quate forces should also be sent in pursuit of any parties who are known to have passed into the Territory since this movement began, with instructions to conduct those who will return willingly from the Territory, and to arrest such as make a show of resistance, and to turn them over to the civil authorities at Fort Smith, Ark., for trial. Ade In my judgment the situation is such as to call for the most energetic action. The movement is in direct contravention of law, and the power of the Government should be exercised for its immediate suppression. Very respectfully, your obedient servant, The Hon. The SECRETARY OF THE INTERIOR. E. A. HAYT, Commissioner. UNITED STATES INDIAN SERVICE, SIR: I have the honor to report that I arrived here last night. I have diligently applied myself to-day in inquiry as to the nature and extent of the so-called emigration into the Indian Territory. Although it has been diligently and systematically worked up by newspapers like the Kansas City Times, in the interest, and we may fairly suppose in the pay, of the railroads, not much has yet been done to move emigrants. The fact that a fellow like C. C. Carpenter is allowed to put himself at the head of the enterprise must operate against it in Missouri and Kansas where he is known. I have seen some of the most reliable people of this town, and cannot find that any considerable party has yet left it, or gone through it. On the way there, twenty wagons and two ambulances were telegraphed to have gone out from here; only one stage-load left, and that was chartered and filled by a surveying party. At this season of the year on the frontier will be found hundreds of “movers,” people who go anywhere to get from where they last lived. Some of these have, I suppose, been induced by the specious promises of Carpenter et al. to join them, and they may succeed in getting crowds of the restless and discontented on the same terms, if force is not at once applied to prevent their folly. Troops could be bivouacked at points on the northern line of the Territory that would effectually prevent the intended invasion; say south of Baxter Springs, Chetopah, Coffeyville, and Arkansas City. I believe the War Department intends to establish posts near the Caney, north of Osage Agency, and at a point south of Caldwell. If this disposition of troops could be made at once, I am satisfied that this invasion project would fall through, so that the troops could be withdrawn before the fall months. Carpenter is here. He was the first man I met on my arrival. He is the same bragging, lying nuisance that I knew him seventeen years ago, when he infested Fremont's quarters. He will not put his head in danger by entering the Territory. It is a pity that the law could not hold him as a conspirator against the public peace. I gave him a few words of caution about getting honest men in trouble; but a pair of handcuffs would be the only convincing argument with him. He came to Independence, some twenty miles from here, at the end of a little spur of the same railroad. The merchants agreed to give him five hundred dollars when his first party came, and a thousand dollars more when a thousand emigrants had been moved to the Territory by him. He could not satisfy the parties that he had a party at all; they refused the first installment, and he left that place for this, saying that the Independence people had gone back on him. His wife is now operating on the merchants of this place in raising funds. The appearance of a squadron of United States cavalry would at once dry up this source of revenue. The competition between the border towns for this emigration is the fruitful source of the lies that have been told about its magnitude, and the inducements held out to entice people into it. A party propose leaving Chetopah to-morrow, Their leader, a Mr. McFarland, who called on me, reported them as 75 families. I think he exaggerated the number, but I telegraphed General Pope, who can catch and return them. Carpenter says that twentyfive hundred have gone in below Sac and Fox country. I suppose one-tenth of this number are there, as that is as near as he could possibly come to the truth; and it is quite as many as I can account for, even though four-fifths of them went by other routes than this. If these people are summarily ejected and set across the line, a stop will be put to the whole thing. Force is the argument in this case, and the success of the Government will depend on the promptness and speed of its application. Powerful and unscrupulous influences are at work stirring up the West in this matter. Only the whole power of the Government can defeat them. Humanity demands that this be quickly applied. I shall keep General Pope advised by letter or telegraph, and report each event as it occurs to you. I may require some means for the getting of secret reports and authority to use them. In case I do, I'll telegraph request for same. I have the honor to be, your obedient servant, Hon. E. A. HAYT, Commissioner of Indian Affairs, Washington, D. C. JOHN MCNEIL, Inspector. OFFICE OF UNITED STATES INDIAN AGENT, Sac and Fox Agency, Indian Territory, April 30, 1879. Hon. E. A. HAYT, I have been hearing, for some time, rumor of arrangements for settling the Government lands in the Indian Territory, but have had nothing definite in regard to the matter until the 28th, when four or five wagon-loads of men, women, and children passed through this place destined to form a settlement on the head of Deep Fork, about fortyfive or fifty miles west of Mexican Kickapoo station, this agency; since which time, about twenty wagons have passed, generally men. In view of the fact that this subject is assuming formidable and apparently large proportions, I deem it necessary to notify you of the facts, so that such action may be taken as the merits of the case demand. The present point for settlement of those who have passed through here is some nearer Cheyenne Agency than this place; but if the number that is now reported, and who have arranged and are arranging to come, do come, in less than one month they will be scattered over hundreds of miles, selecting the best portions for farms. I wish to call your attention particularly to the land occupied by the Mexican Kickapoo Indians, as I have no knowledge that their reservation has been bounded, further than that they were to occupy lands immediately west of and adjoining the Sac and Fox Reservations. If they have not a reserve set apart to them by metes and bounds, it will be absolutely necessary for this to be done at once, or their lands will be occupied by these immigrants, and a removal after they have once settled will be much more difficult than to prevent their occupancy, if the reservation is so bounded as to show where the Kickapoos actually have a right. It has been the understanding with them that they should have land bounded on the east by the Sac and Fox Reserve, north by the Deep Fork River, west by the Indian meridian, and south by the North Fork River. This constitutes a tract of about eight townships. Some have claimed that it extends north to Red Fork or Cimarron River. I herewith inclose three slips taken from the latest papers received here, which shows more fully the status of this immigration movement. You may have been apprised of this through the press, but the matter of the Kickapoo Reservation should claim immediate attention. The Secretary directs me to say that the utmost vigilance and energy must be exercised to prevent the movement into the Indian Territory. The military have been instructed to use the necessary force to return all parties now in the Territory therefrom, and to prevent any further movements across the line. Any important facts coming to you should be communicated to General Pope and to this office. E. J. BROOKS, [Telegram.] QUAPAW AGENCY, I. T., VIA SENECA, MO., TO COMMISSIONER INDIAN AFFAIRS, Washington, D. C. : Large numbers of people have moved into the Quapaw land in the last few days. Will warn them off at once. HAWORTH. |