Appraisal of the lands west of 96°.—By the 5th section of the Indian appropriation act of May 29, 1872,[646] the President of the United States was authorized to cause an appraisement to be made of that portion of the Cherokee lands lying west of 96° west longitude and west of the Osage lands, or, in other words, all of the Cherokee lands lying west of the Arkansas River and south of Kansas mentioned in the 16th article of the Cherokee treaty of July 19, 1866. No appropriation, however, was made to defray the expense of such an appraisal, and in consequence no steps were taken toward a compliance with the terms of the act. This legislation was had in deference to the long continued complaints of the Cherokees that the United States had, without their consent, appropriated to the use of other tribes a large portion of these lands, for which they (the Cherokees) had received no compensation. The history of these alleged unlawful appropriations of the Cherokee domain may be thus briefly summarized:
1. By treaty of October 18, 1865,[647] with the Kiowas and Comanches, the United States set apart for their use and occupancy an immense tract of country, which in part included all of the Cherokee country west of the Cimarron River. No practical effect, however, was given to the treaty, because the United States had not at this time acquired any legal right to settle other tribes on the lands of the Cherokees and because of the fact that two years later[648] a new reservation was by treaty provided for the Kiowas and Comanches, no portion of which was within the Cherokee limits.
2. By the treaty of October 28, 1867,[649] with the Southern Cheyennes and Arapahoes the United States undertook to set apart as a reservation for their benefit all the country between the State of Kansas and the Arkansas and Cimarron Rivers. The bulk of this tract was within Cherokee limits west of 96°. As a matter of fact, however, the Cheyennes and Arapahoes could not be prevailed upon to take possession of this tract, and were finally, by Executive order,[650] located on territory to the southwest and entirely outside the Cherokee limits.
Pursuant to the act of May 29, 1872,[651] the Commissioner of Indian Affairs negotiated an agreement with the Southern Cheyennes and Arapahoes in the following autumn[652] by which they ceded to the United States all interest in the country set apart by the treaty of 1867, and accepted in lieu thereof a reserve which included within its limits a portion of the Cherokee domain lying between the Cimarron River and the North Fork of the Canadian.
This agreement with the Southern Cheyennes and Arapahoes not having been ratified by Congress, an agreement was concluded late in the following year[653] by the Commissioner of Indian Affairs with both the Cheyennes and the Arapahoes, whereby they jointly ceded the tract assigned them by the treaty of 1867, as well as all other lands to which they had any claim in Indian Territory, in consideration of which the United States agreed to set apart other lands in that Territory for their future home.
Like its predecessor, this agreement also failed of ratification by Congress, and the Indians affected by it still occupy the tract set apart by Executive order of 1869.
In the light of these facts it appears that although the United States made several attempts, without the knowledge or concurrence of the Cherokees, to appropriate portions of the latter's domain to the use of other tribes, yet as a matter of fact these tribes never availed or attempted to avail themselves of the benefits thus sought to be secured to them, and the Cherokees were not deprived at any time of an opportunity to sell any portion of their surplus domain for the location of other friendly tribes.
By a clause contained in the sundry civil appropriation act of July 31, 1876,[654] provision was made for defraying the expenses of the commission of appraisal contemplated by the act of 1872, and the Secretary of the Interior appointed[655] such a commission, consisting of Thomas V. Kennard, Enoch H. Topping, and Thomas E. Smith. Before the completion of the duties assigned them, Mr. Kennard resigned and William N. Wilkerson was appointed[656] to succeed him. The commission convened at Lawrence, Kansas, and proceeded thence to the Cherokee country, where they began the work of examination and appraisal. Their final report was submitted to the Commissioner of Indian Affairs under date of December 12, 1877. From this report it appears that the commissioners in fixing their valuations adopted as the standard of their appraisal one-half the actual value of the lands, on the theory that being for Indian occupancy and settlement only they were worth only about half as much as they would have been if open to entry and settlement by the white people.
The entire tract, including the Pawnee reserve, contains 6,574,576.05 acres, and was appraised at an average valuation of 411/4 cents per acre. The average valuation placed upon the Pawnee reserve separately was 59 cents per acre, leaving the average of the remaining 6,344,562.01 acres 40.47 cents per acre.
To this standard of appraisal the Cherokees strenuously objected as being most unfair and unjust to them, claiming that the same measure of value used by the United States in rating its lands of a similar character in the adjoining State of Kansas, and from which they were separated only by an imaginary line, should prevail in determining the price to be paid for the Cherokee lands.