Transcribed from History of Labette County, Kansas and its Representative Citizens, ed. & comp. by Hon. Nelson Case. Pub. by Biographical Publishing Co., Chicago, Ill. 1901

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THE SETTLERS' CONTEST FOR THEIR HOMES


The contest of the settlers on the Osage Ceded Lands to secure titles to their homes was one of the most heroic struggles that has ever been made. Considering the number of parties interested, the extent and value of the subject-matter of the contest, the apparently grossly disproportionate strength of the two contestants, the length of time to which the contest was protracted before a final decision was reached, one will scarcely find in the annals of history an instance where the devotion to the principle involved, the ability displayed in working up and managing the contest, the victory achieved, was as marked as was that of the settlers on the Osage Ceded Lands in contesting with the railroad companies the right to secure from the Government a title to their homes. At the outset everything seemed to be in favor of the railroad companies, at the close they had not as much as a solitary thread left to fling forth as a banner denoting their success in the fight. When the contest commenced, on the side of the corporations we find the Secretary of the Interior, standing as head of the Land Department of the General Government; coming to his aid a little later the Attorney General of the United States; through their decision, patents from the United States signed by President Grant, conveying the legal title to all these lands to the corporations; the open treasury of two powerful corporations, by means of which they were enabled to command the best legal talent of the country, and whatever else they needed that could be procured by money; the prospect of securing 800,000 acres of land through the negotiation of the infamous Sturges treaty, by means of which it was hoped that unscrupulous legislators and Government officials could be corrupted to support the common cause of the several companies to secure from the General Government a recognition of the claims of each in these trust and ceded lands, to the robbery alike of the school fund and the actual settlers; almost the entire press of the country; and, what may possibly be regarded as one of their strongest supports, a very general local feeling that it was inexpedient to do anything that looked unfriendly to the railroads, the speedy construction of which into each community they especially desired, and the general favor of which they eagerly courted. As opposed to this there were several hundred settlers scattered over two counties 25 by 50 miles in extent, most of whom had scarcely enough means to furnish their homes with anything like the comforts of life and provide sufficient teams and tools to cultivate their farms. They had come here from nearly every State in the Union; had no acquaintance with each other; were unfamiliar with public business; were distrustful of themselves, and more so of those in whose hands they were asked to place their interests; were slow to take the little means they had, all of which was needed to procure the actual necessities of life, and put it into a general fund to fee lawyers to prosecute a case which they heard on every hand was a hopeless one. With these surroundings and these prospects before the parties respectively, the settlers' contest opened. The corporations looked out upon a prospect full of sunlight and cheer; the settlers' vision was obscured by clouds, and mist, and apparently approaching disaster.

PRELIMINARY STEPS IN THE CONTEST.

In the negotiation of the treaty with the Osages, on Sept. 29, 1865, the settlers then on the lands, for the purchase of which provision was made in the treaty, felt sure of being able to purchase their lands at $1.25 per acre. The news of the negotiation of the treaty was spread through the country, and largely on the strength of it settlers came upon these lands very rapidly. The failure to secure the ratification of the treaty for so long a time, and after its negotiation the further failure of Congress to make any provision for obtaining title, caused the settlers to become uneasy. Their rights on the land were much discussed among themselves during 1866 and 1867. It was not, however, until August, 1867, that any definite action was taken by them to induce legislation looking toward granting them relief. A few parties residing in Neosho county conceived the idea of making some demonstration, and got together as many of the settlers as they could at Canville trading-post, in August, 1867. At this meeting it was decided to petition Congress to pass a bill to secure the rights of settlers, and to allow them to purchase their lands. A committee consisting of J. M. Bemis, T. C. Cory, D. T. Mitchell and John Johnson was appointed to prepare a petition, get signatures thereto, and forward to Congress. Immediately upon the adjournment of the meeting, the committee prepared the petition, and, deeming it unnecessary to travel all over the country to secure the signatures of men who were known to be in favor of what they were asking, the committee took the liberty to attach to it the names of all the settlers on these lands, so far as they were known or could be ascertained. Most of the night having been spent in that work, they had by morning a petition of quite considerable length, which was at once forwarded to Congressman George W. Julian, of Indiana, who was a personal friend of Colonel Mitchell, of the committee. Subsequently other meetings were held, and it was decided to send delegates to Washington to influence Congressional action in behalf of the settlers. Some money was raised, and Hon. Solomon Markham was sent to represent the settlers' interest. In the spring and early summer of 1868, a newspaper having been established in each of the two counties, the settlers' cause began to be discussed through the press. In the summer of 1868 conventions were held in Labette and Neosho counties, at which delegates were elected to a joint convention to be held at Fort Roach, or Ladore, on September 14th. This meeting organized by electing Joseph McCormick, of Labette county, chairman, and J. H. Scott, secretary. Owing to a misunderstanding as to the time of meeting, it was voted to adjourn to the 26th inst. On the day last named the meeting was held, with a full attendance from both counties. In the meantime steps had been taken, to secure funds to carry on the work, and reports of success were made at this meeting. It was decided to again send a delegate to Washington, and judge Solomon Markham, who had represented them at the previous session, was again selected as their agent. This selection was not entirely satisfactory to all of the settlers, and especially to those in Labette county, and a convention was held at Oswego, December 26th, at which Col. Willoughby Doudna was selected as the special agent of the settlers of this county to go to Washington. Both Judge Markham and Col. Doudna spent the winter in Washington, and helped to secure the passage of the law giving the settlers the right to purchase their homes.

The treaty provided that those who were already upon the land should have a right to purchase a quarter-section at $1.25 an acre. Under this provision it is said that 143 settlers in the two counties took title to their homes. All of those who went on the land subsequent to Sept. 29, 1865, were dependent upon future litigation far their rights to secure title. The settlers' efforts were first directed to securing the attention of Congress, but their most serious contest was in procuring a construction of the law by the courts in opposition to the construction that had been placed upon it by the Land Department of the General Government.

SETTLERS' MEETINGS.

A notable feature of the contest carried on by the settlers was the immense meetings which they held in various parts of the two counties for the purpose of awakening an interest and creating enthusiasm in the members. The first of these meetings, which may be called their great one, was held at Jacksonville, on July 28th and 29th, 1869. This meeting was really called in the interest of the settlers on the Cherokee Neutral Lands to protest against the Joy purchase and in favor of the rights of the settlers on those lands to purchase them from the Government; but it was attended as largely by the citizens on the Osage Ceded Lands as by those on the Joy lands, and was turned into a meeting in the interest of both. The Oswego brass band was present and furnished the music. Congressman Sidney Clarke and John Speer made a trip from Lawrence in a lumber wagon, taking in Major H. C. Whitney at Humboldt; they were of course doing a great deal of political work as well as looking after the settlers' interests; all of them made speeches. Fully 3,000 people from the four counties were present, and were electrified, as only such a crowd can be when their homes are in peril and measures for their security are being discussed. Two sets of resolutions were adopted: one by the settlers on the Joy lands, and another by the settlers on the Osage Ceded Lands. At night Senator Pomeroy was hung in effigy, and his actions, which were believed to be inimical to the settlers' interests, were severely denounced.

From this time on, the cause of the settlers on the Osage Ceded Lands had a popularity which it had not before that enjoyed. Another meeting was called, to be held at Jacksonville, on Sept. 15, 1869. This was very much less satisfactory in its results; but seven persons were present; one of these was Major Whitney. The report of this meeting which went out did not give the numbers attending, and it had in the eye of the public an air of respectability. Nothing was accomplished excepting the call for a series of meetings to be held the first two weeks in October, throughout Neosho and Labette counties, and the appointment of a committee, consisting of H. C. Whitney, T. C. Cory, and J. S. Waters, to prepare an address to be published not later than October 1st. If any of the meetings provided for at this time were held they were but small affairs, and made little impression. The next great meeting of the settlers was at Ladore on July 4, 1870. J. F. Bellamy, H. C. Whitney and John Speer made speeches. On the following day the settlers formed their protective association. On Sept. 26, 1870, in compliance with an appointment made by the association on August 26th, a convention of the settlers was held at Prairie du Chien for the. purpose of nominating a senator for the Sixteenth senatorial district. Major H. C. Whitney was unanimously nominated for the position. Provision was at the same time made for holding meetings at Ladore on Sept. 6th, at Jacksonville on the 9th, and at Erie on the 10th. At the Ladore meeting, after addresses by Major Whitney and Judge Markham, the following platform was adopted:

"Whereas, We, the settlers on the Osage Ceded Lands, in the State of Kansas, believe that under the treaty by which the said lands were ceded to the United States, and under the joint resolutions of Congress, April 10, 1869, actual settlers were entitled to purchase any part of said lands in tracts not to exceed 160 acres, at $1.25 per acre, and that no corporation has acquired any vested rights therein; and whereas, certain railroad corporations are claiming certain portions of said lands; now, therefore,

"Resolved, 1. That we will proceed at once to test the validity of, said claims, by instituting legal proceedings in the proper courts.

"2. That we respectfully request the Governor of our State to withold all patents from said corporations for said lands until the termination of said proceedings.

"3. That we will support no candidate for county and legislative offices who is not thoroughly identified with the settlers and in sympathy with their cause."

At the Erie meeting G. W. McMillen was chairman, and M. H. Sheldon, secretary; and in addition to hearing speeches, nominations were made for nearly a full set of officers for Neosho county.

On May 1, 1871, a meeting was held at Oswego, at which Hon. William Lawrence spoke and gave an exhaustive legal discussion of the settlers' rights. On July 12, 1873, the largest meeting which had ever then been held by the settlers was had at Thayer. There were 765 wagons filled with people in the procession, and a vast number on horseback. It was estimated that from 8,000 to 10,000 persons were in attendance. Speeches were made by Gov. Shannon, Congressman Clarke, Judge McComas, Milton W. Reynolds, W. L. Simons, and, others. This was followed on October 1st by another immense meeting at Osage Mission, at which Gov. Osborn, Sidney Clarke, Stephen A. Cobb, D. R. Anthony, M. J. Salter, Judge McComas and J. H. Crichton spoke. On May 27, 1874, another great gathering was had, at Parsons. M. J. Salter was chairman, and. F. B. McGill, secretary. Gov. Osborn, George R. Peck, Sidney Clarke and Judge McComas spoke. Besides these great meetings which I have named, during these years innumerable local meetings were held, some of them of scarcely less importance than those named. Their effect was to keep the settlers' interest at fever heat, and to cause them to demand of their officials the exertion of every effort in their power to secure their rights.

BASIS FOR THEIR CLAIMS.

The claim of the two parties, in brief, was this: These lands were reserved to the Osage Indians by the treaty proclaimed, June 2, 1825, soon after the conclusion of which the Indians moved upon and occupied them up to 1869. On March 3, 1863, an act of Congress was approved, granting land to the State of Kansas to aid in the construction of certain railroads, and among them the Leavenworth, Lawrence & Galveston. On July 26, 1866, another land grant was made to the State of Kansas, to aid, among other roads, the building of the Missouri, Kansas & Texas. By virtue of their grants these two companies claimed alternate sections ten miles wide on each side of their respective lines of road, as finally located, through the Osage Ceded Lands.

On Sept. 29, 1865, a treaty was concluded between the United States and the Osage Indians, whereby the latter sold to the United States all the land comprising Neosho and Labette counties, to be by the Government "surveyed and sold under the direction of the Secretary of the Interior on the most advantageous terms for cash, as public lands are surveyed and sold under existing laws."

On June 26, 1866, the Senate amended this treaty by adding to the above provision the following: "Including an act granting lands to the said State of Kansas in aid of the construction of a railroad through said lands." This amendment was accepted by the Indians on Sept. 21, 1866, and the treaty as amended was proclaimed by the President on Jan. 21, 1867. It was claimed that the above Senate amendment to the treaty recognized the grant already made, if it did not in itself amount to a grant to the railroad companies.

On behalf of the settlers it was contended that the Congressional grants in aid of the construction of railroads were grants in praesenti, and could not apply to these lands, because, by the treaty of 1825, they were "reserved lands." It was further contended that the treaty contemplates the survey and sale of these lands to actual settlers at $1.25 per acre.

The railroad companies applied, to the Commissioner of of the General Land Office for a withdrawal of the lands they claimed under their respective grants from market. The Commissioner, Hon. Joseph Wilson, refused their request on April 26, 1867, and on a renewal of the application again ruled against them on May 17, 1867. From this decision, the companies appealed to the Secretary of the Interior. On November 8, 1867, the Secretary, Hon. 0. H. Browning, made his decision reversing Commissioner Wilson, and awarding to the railroad companies all the land by them claimed under the grants. The line of the M. K. & T. Ry. was definitely made Jan. 7, 1868; and maps showing the definite location of the lines of the two roads having been filed with the Commissioner, an order was made on Jan. 21, 1868, withdrawing the lands from market, which was forwarded to the land office at Humboldt, where it was received on Feb. 4, 1868, from which time the rights of the companies as against the settlers dated. Those who had settled on these lands previous, to the last-named date were allowed to enter the same after the passage of the joint resolution of April 10, 1869. All odd sections not then settled on, and all even sections falling within the Indemnity limit not then settled on, were awarded to the railroad companies.

Early in January, 1868, Congressman Clarke introduced a joint resolution for the sale of these lands to actual settlers; and all during that year efforts were made by friends of the settlers to secure legislation in their interest, but without success. The Forty-first Congress assembled on March 4, 1869. On the 15th of that month Congressman Clarke again introduced a joint resolution for the disposal of the Osage Ceded Lands, which passed the House on April 5th, the Senate on the 9th, and received the President's approval on April 10, 1869. The passage of this resolution was hailed with delight, and it was generally thought that it was so worded as to entitle settlers on any portion of the lands to enter the same at $1.25 per acre. But when, on June 19, 1869, the Register and Receiver of the Land Office gave notice that filings would be received, on and after July 20th, and proof of settlement and purchase-money on and after September 2, 1869, they further stated that, under instructions from the General Land Office, under date of June 3, 1869, the right of the railroad companies to these lands under the terms of the land grants would be respected. Consternation and indignation now prevailed among the settlers, and continued to increase in proportion as the repeated rulings of the Government officials, as they were called on from time to time to further construe the law, seemed to show a disposition to ignore the settlers' rights and to place their homes, more firmly within the grasp of the railroads. In different ways the question was brought before the various officers connected with the land department of the Government from time to time, and efforts were made to secure a reversal of Secretary Browning's ruling, but all to no purpose. When brought before him, Secretary Cox sustained the ruling of his predecessor, and of course the Commissioner and the land office officers were bound by the decision of their superiors.

Finally, in 1871, the Settlers' Association having employed Judge Lawrence, it was hoped to get a final decision in their favor. On an appeal taken from the decision of the Humboldt land office the question of the rights of the settlers and of the railroads was fully argued, first before Hon. William Drummond, Commissioner of the General Land Office, and then, on an appeal from his decision, before Hon. Columbus Delano, Secretary of the Interior, who called to his aid the Assistant Attorney General, Hon. W. H. Smith. The settlers' cause was argued by Hon. Wm. Lawrence, and the railroads' claims were presented by B. R. Curtis.

On January 26, 1872, Secretary Delano announced, his decision, fully sustaining the railroad companies' claims, and in support of his conclusion said: "If I were in doubt about it, yet in view of the former decision of my predecessor, Secretary Browning, in favor of the validity of the grants, and the refusal of Secretary Cox to reverse that decision, and the action of the companies under it, I should hesitate long before I would disturb rights acquired under that decision." He also gave the lengthy opinion of Assistant Attorney General Smith concurring in the opinion he had reached. Following this decision, on February 19, 1872, President Grant issued a patent to the M. K. & T. Ry. Co. for so much of its land as it had then selected.

THE ATTITUDE OF THE PRESS.

The positions assumed by the local press toward the settlers' cause varied at different times during the struggle. Of course different papers assumed different positions, and the same papers sometimes changed sides - at one time advising resistance to the railroad companies I claim, and again counseling compliance. I can only give two or three extracts to show these varied sentiments, but anyone who has any desire to see the many changes that took place can be gratified by consulting the files of the various papers of the two counties. On January 27, 1870, the Osage Mission Journal says: "We think it would be folly for the settlers to spend their time and money in trying to beat the railroads out of their lands at this late day." In its issue of February 7, 1872, the Chetopa Advance, after announcing the decision of the Secretary of the Interior in favor of the railroad companies, says:, "While we could wish that the decision might have been different, we cannot say that we are disappointed in the result. Without claiming to comprehend the case fully in all its legal bearings, we have always held and expressed the opinion that the railroad title to the lands would be confirmed." And: again, on February 21, 1872, in a leading editorial headed "Better Compromise," the same paper says: "In the contest between the railroad, and the settlers on the Osage Ceded Lands, our readers will remember that we have never encouraged them in their efforts to contest the title with the railroads. We appeal to the settlers and to the railroads to let us have peace. The former cannot afford to spend any more money in futile litigation. Whatever they so spend will be taxed back upon them when the title is finally confirmed, with interest to boot." In announcing the decision of the Secretary of the Interior the Parsons Sun in its issue of February 3, 1872, says: "We are well aware that the above news will fall like a thunder-clap on many of the settlers whose expectations have been recently raised to the utmost by the favorable reports and opinions from Judge Lawrence; but we have endeavored to prepare them, from time to time, to expect the worst, and we now hope that the majority will bow to the decision of the Secretary of the Interior and immediately make the most favorable terms possible with the railroad companies."

Most of the papers in both counties, even those most entirely devoted to the settlers' cause, were somewhat wavering at times in their support. In justification of their course, the papers which counseled surrender to the railroad companies and compromise with them, pointed out the delay and expense attending litigation even in the event of final success, and the damage that would necessarily result, not only to the contestants, but to all the settlers alike, in retarding immigration, preventing improvement, and embittering the feeling by a contest in the courts. So far as the metropolitan press had discussed the matter at all, it had been, as the settlers believed, from the standpoint of the railroad companies' position. To counteract such influence, and, to give the public an understanding of their position, the Grand Council appointed a committee, of which T. P. Leech was one of the members, (the other names I have not been able to get), to prepare an address to the public setting forth the settlers' cause, together with their determination to obtain a decision in the highest court of the country upon its merits, with a willingness on their part to abide by such judgment. They caused this address to be published in leading papers in Eastern cities, and thereby brought their cause into more prominence than it had hitherto attained.

Transcribed from History of Labette County, Kansas and its Representative Citizens, ed. & comp. by Hon. Nelson Case. Pub. by Biographical Publishing Co., Chicago, Ill. 1901

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