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In addition to the provision contained in the treaty of 1866 concerning the location of civilized Indians east of 96°, the sixteenth article of that treaty made further provision enabling the United States to locate friendly tribes on Cherokee lands west of that meridian. The conditions of this concession were that any tracts selected for such location should be in compact form and in quantity not exceeding 160 acres for each member of the tribe so located, and that the boundaries of the tracts should be surveyed and marked and should be conveyed in fee simple to the tribes respectively located thereon. It was further stipulated that the price to be paid for the lands so set apart should be such as might be agreed upon between the Cherokees and the immigrant tribes, subject to the approval of the President of the United States, who, in case of a disagreement between the parties in interest, was authorized to fix the value.

Osages.—The treaty of September 29, 1865,634 with the Osages, having in view the possibility of some early arrangement whereby the Kansas tribes might be removed to Indian Territory, made provision that in case such a removal of the Osages should take place their remaining lands in Kansas should be disposed of and 50 per cent. of the proceeds might be applied to the purchase of their new home. Nothing was done in the line of carrying out this idea until the spring of 1868, when, in reply635 to a communication from the Commissioner of Indian Affairs on the subject, the Cherokee delegation asserted the willingness of their nation to dispose of a tract for the future home of the Osages not exceeding 600,000 acres in extent and lying west of 96°, provided a reasonable price could be agreed upon for the same. A few weeks later636 a treaty was concluded between the United States and the Osages, which made provision for setting apart a tract for their occupation in the district of country in question, but the treaty failed of ratification. The necessity for their removal from Kansas, however, increased in correspondence with the demands of advancing settlements, and Congress, by an act approved July 15, 1870,637 provided that, whenever the Osages should give their assent, a tract should be set apart for their permanent occupancy in the Indian Territory equal in extent to 160 acres for each member of the tribe who should remove there. For this tract they were to pay a price not exceeding that paid by the United States, the cost to be defrayed out of the proceeds arising from the sale of their Kansas lands. The assent of the Osages to the provisions of this act was promptly secured through the medium of a commission consisting of J. V. Farwell, J. D. Lang, and Vincent Colyer, of the President's Board of Indian Commissioners. A tract was selected in the Cherokee country immediately west of 96°, as was supposed, and the Osages were removed to it. Their condition was for a time, however, most unsatisfactory. Many trespassers were found to be upon the lands selected for them. To crown this trouble, a new survey located the line of the 96th meridian a considerable distance to the west of what had previously been presumed its proper location. This survey deprived the Osages of the greater part of the tillable land upon which they had settled and included the most valuable of their improvements. To a proposition allowing the Osages to retain the lands thus found to be east of 96°, the Cherokees returned an emphatic refusal, on the ground that the former were not "civilized Indians."638 Another subject of annoyance was the inability of the Osages and Cherokees to agree upon a price for the lands selected by the former. The matter was therefore laid before the President, who, by executive order,639 fixed the price to be paid at 50 cents per acre. To this action the Cherokees strenuously objected, urging that not only was the price too low, but that a uniform valuation ought to be fixed for all the Cherokee lands west of 96°.640 To remedy the evils arising from these complications, legislation was asked of Congress approving a new selection for the Osages, and, by act approved June 5, 1872,641 such selection was affirmed (the previous consent of the Cherokees having been obtained),642 to include the tract of country "bounded on the east by the 96th meridian, on the south and west by the north line of the Creek country and the main channel of the Arkansas River, and on the north by the south line of the State of Kansas."

Kansas or Kaws.—This act contained a proviso that the Osages should permit the settlement within the limits of this tract of the Kansas or Kaw tribe of Indians, and a reservation was accordingly set off for them in the northwest corner, bounded on the west by the Arkansas River. The area of the country thus assigned to the Kaws was 100,137 acres, and of that portion intended for the occupation of the Osages 1,470,059 acres.643

The question of the future location of these Indians having been definitely settled, it only remained for an agreement to be reached concerning the price to be paid to the Cherokees for the tract so purchased. The value fixed by the President on the tract originally selected was considered as having no application to the lands set apart by the act of 1872. As in the first instance no agreement was reached between the Osages and Cherokees, and the President was again called on to establish the price. This he did, after much discussion of the subject, on the 14th of February, 1873. The price fixed was 70 cents per acre, and applied to the "Kaw reserve" as well as to that of the Osages.

Pawnees.—In further pursuance of the privilege accorded by the treaty of 1866, the Pawnee tribe has also been located on Cherokee lands west of 96°. The Pawnees are natives of Nebraska, and possessed as the remnant of their original domain a reservation on the Platte River, in that State. Their principal reliance as a food supply had been the buffalo, though to a very limited extent they cultivated corn and vegetables.

For two years prior to 1874, however, their efforts in the chase were almost wholly unrewarded, and during the summer of that year their small crops were entirely destroyed by the ravages of the grasshoppers. The winter and spring of 1874—'75 found them, to the number of about three thousand, in a starving condition. In this dilemma they held a council and voted to remove to Indian Territory, asking permission at the same time to send the male portion of the tribe in advance to select a home and to break the necessary ground for planting crops. They also voted a request that the United States should proceed to sell their reserve in Nebraska, and thus secure funds for their proper establishment in the Indian Territory. Permission was granted them in accordance with their request, and legislation was asked of Congress to enable the desired arrangement to be carried into effect. Congress failed to take any action in relation to the subject during the session ending March 3, 1875. It therefore became necessary to feed the Pawnees during the ensuing season.644

The following year, by an act approved April 10,645 Congress provided for the sale of the Pawnee lands in Nebraska, as a means of securing funds for their relief and establishment in their new home, the boundaries of which are therein described. It consists of a tract of country in the forks of the Arkansas and Cimarron Rivers comprising an area of 283,020 acres. Of this tract, 230,014 acres were originally a portion of the Cherokee domain west of 96° and were paid for at the rate of 70 cents per acre. The remainder was ceded to the United States by the Creek treaty of 1866.

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 later648 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 autumn652 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 year653 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 appointed655 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 appointed656 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.

The Secretary of the Interior, after a careful examination of the whole subject, was of the opinion657 that the restriction placed upon the use of these lands (being limited to Indian occupancy only) did not warrant a reduction of 50 per cent. in an appraisal of their value.

The price paid by the Osages for their reserve was 70 cents per acre. The Pawnee tract was of about the same general character as that of the Osages, and there seemed to be no good reason why the same price should not be allowed to the Cherokees therefor. This Pawnee tract was appraised by the commissioners at 59 cents per acre. As the appraisal of the whole unoccupied country west of 96° was made by the same appraisers and upon the same basis, if an increase was determined upon in the case of the Pawnee tract from 59 to 70 cents per acre, it was only just that a proportionate increase above the appraised value of the remainder of the lands should also be allowed. This would give an increase for the latter from 40.47 cents to 47.49 per acre. The adoption of this standard was therefore recommended to the President and was by him approved and ratified.658

In addition to the Osages, Kansas, and Pawnees there have been removed to the Cherokee lands west of 96° the Poncas, a portion of the Nez Percés, and the Otoes and Missourias.

Poncas.—An appropriation of $25,000 was made by act of Congress approved August 15, 1876,659 for the removal of the Poncas, whenever their assent should be obtained. After much trouble and a threatened resort to military force, their assent to remove to the Indian Territory was secured in the beginning of 1877.660 They came overland from Nebraska in two different parties and encountered great hardships, but finally reached the Territory, where they were temporarily located on the northeast portion of the Quapaw reserve, a few miles from Baxter Springs, Kansas.661

They were not satisfied with the location, which was in many respects unsuitable, especially in view of its proximity to the white settlements. They were, therefore, permitted to make another selection, which they did in the Cherokee country, on the west bank of the Arkansas, including both banks of the Salt Fork at its junction with the parent stream. To this new home they removed in 1878,662 but it was not until 1881663 that Congress made an appropriation out of which to pay the Cherokees for the land so occupied. This tract embraces 101,894.31 acres, for which the price of 47.49 cents per acre, fixed by the President, was paid.

Nez Percés.—The Nez Percés, previously alluded to, are the remnant of Chief Joseph's band, who surrendered to General Miles in 1877. They were at first removed from the place of their surrender to Fort Leavenworth, Kansas, where they arrived in November of that year as prisoners of war, to the number of 431. Congress having made provision664 for their settlement in the Indian Territory, a reservation was selected for them on both sides of the Salt Fork of the Arkansas. To this tract, which adjoined the Poncas on the west, they removed in the summer of 1879,665 having in the mean time lost a large number by death, the mortality being occasioned in great measure by their unsanitary location while at Fort Leavenworth. The reserve selected for them contains 90,735 acres and was paid for at the same price as that of the Poncas.

Otoes and Missourias.—By act of March 3, 1881,663 provision was also made for the removal of the Otoes and Missourias to the Indian Territory and for the sale of their lands in Nebraska.

A reservation was accordingly selected for them, west of the Arkansas River and south of the Ponca Reserve, to which they were removed in the autumn of the same year666. It contains 129,113.20 acres and was paid for at the same rate as that of the Poncas and Nez Percés.667