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Show 452 HISTORY OF PUBLIC LAND LAW DEVELOPMENT after the United States began to grant free homesteads, first of a quarter-section, later of 320, and finally of 640 acres. Indian Treaties as Land Transfer Device The West was ambivalent on one change or innovation: the use of the treaty making power to acquire land from the Indians and to provide for the disposal of land so acquired altogether outside the public land system. The nonstatutory method of land disposal began innocently enough, perhaps in early Indian treaties when it seemed advisable to grant one or more chiefs something extra in the way of an alienable allotment of land that they might sell or exchange for goods. By 1826 it had become an important means of obtaining the support of chiefs for cessions, particularly for the Miami and Potawatomi lands in Indiana.34 In 1830 and 1832 it was greatly broadened in the treaties with the Creeks, Choctaws, and Chickasaws of Mississippi and Alabama. To secure approval of the surrenders, it was provided in these treaties that thousands of individual allotments should be made ranging from 160 acres up to a number of sections. The allotments immediately became the object of white greed and quickly passed out of the hands of the Indians. In this way several million acres in these two states never became a part of the public domain, were not subject to preemption, and fell largely into the hands of speculators. At the time there seems to have been no great outcry against the use of the treaty making process to keep large blocks of land from going through the public land system, except that the Jackson administration was charged 341 have described the use of allotments in negotiations with the Miami and Potawatomi Indians in my introduction to: Nellie Armstrong Robertson and Dorothy Riker (eds.) , The John Tipton Papers (3 vols., Indianapolis, 1942), 1:3-58. For earlier use of allotments see J. P. Kinney, A Continent Lost-A Civilization Won. Indian Land Tenure in America (Baltimore, 1937) , pp. 81 ff. with aiding speculators to gain ownership of great blocks of land, a charge which was quite true for other reasons and regardless of the Indian lands. A second device to transfer land to buyers without having it become part of the public domain and subject to preemption was to provide in treaties that after individual allotments had been made the balance of the land should be ceded "in trust" and sold. These trust lands were not sold under the general sales laws in which settlers were conceded a preference right to purchase. Largest of these sales was that of the Chickasaw trust lands in Mississippi and Alabama. After the first sale the lands were to be steeply graduated in price to make sure that they would be sold speedily, since the cost of administering them was required under the treaty to be paid by the Indians. The net returns were to be added to their endowed funds.35 The nonstatutory methods of land disposal developed within the treaty making power aroused deep emotions among western people who feared that, if not halted, it might ultimately replace the statutory system. In the treaties negotiated with the intruded Indians along the eastern front of Kansas in 1853 and 1854, alienable allotments, inalienable allotments, trust lands, and diminished reserves were offered the Indians to induce them to surrender the greater part of their reservations. The trust lands were to be appraised and sold at public auction at not less than the appraised price. They were not open to preemption, nor could military land warrants or other scrip be offered in payment of them. Hence their cost to settlers would be substantially greater than public lands. The first public sales of land in 1856 and 1857 in the terri- 35 Mary Elizabeth Young traced the events leading to the treaties with the Creeks, Cherokees, and Chickasaws and the conduct of the sales in Redskins, Ruffleshirts and Rednecks. Indian Allotments in Alabama and Mississippi, 1830-1860 (Norman, Okla., 1961) , passim. |