nine in small doses was good for old people. The scientist who gave me gingerbread should have been there to champion the doctor. In the eyes of his judges that night he was suspected of poisoning, or treating with criminal folly, an old woman with one foot in the grave.

The younger doctor was miles away, and might not come. The two loyal sons seemed paralyzed because the time for decision and the time for mourning came together. There were long silences, interrupted by my host repeating in a sort of primitive song, "I can't think of anything except my dying mother. I can't think of anything except mother is going to die."

At last, with his brother's consent, the messenger galloped and galloped away to find his only hope, the younger doctor. As the wife gave me the candle, sending me upstairs, I looked back at the family circle.

Helpless grief made every face rigid. I looked again at the eldest daughter. The moving shadows embroidered on her breast intricate symbols of the fair years, passing by in the ghost of tapestry, things that happened in the beginning of the world. Let the Romance tell that when the stranger slept there was a magic loom by his bed that wove that history again, in valiant colors, showing battles innumerable, and sieges, and interminable sunny love tales, and lotus-handed ladies whispering over manuscripts things too fine to be told, and ruddy warriors sitting at watch-fires on battlements eternal; and let the Romance tell how, in the early dawn, the stranger half awoke, yet saw this tapestry hung round the walls. If one could remember every story for which the pictures stood, he might indeed write the world's unwritten Romance. The last tapestry to be hung changed from gold to black warp and woof, upon which was written that because of a treacherous Prime Minister who served a poisoned wine the Empress of the White Witches was perishing before her time and the

young wizard, with the counter spell, was riding night and day, but all the palace knew he would arrive too late.

At breakfast all faces were stolid and white as frost. The father answered me only when I said good-by.

He said he hardly knew whether I had had anything to eat or whether any one had been good to me. "You just had to take care of yourself." The son, feeling the demand of hospitality in his father's voice, walked to the road with me. He asked if I was walking to Asheville. "Yes, by way of Mount Toxaway and Brevard."

He told me it was good walking all the way, and added, in a difficult burst of confidence, "I am going to Asheville."

Why not come along with me?" I meant it heartily.

He said he had to take horseback and then the railway. He had to be there to-morrow.

"What's the hurry?"

"I have to witness in a whisky case, an internal revenue case."

He said it like a Spanish Protestant called before the Inquisition.

I said to my soul, "These were the revelations of a night and a morning. What deeper troubles were in the House of the Loom that you did not know?"

It

All through that country there had been that night what is called a black frost. was deep and white as the wool on a sheep by the roadside. But it left things blighted and black, and destroyed the chances of the fruit-bearing trees. All the way to Mount Toxaway I met scattered mourners of the ill-timed visitation.

But the simple folly of spring was in me, and the strange elation of gratitude. My soul said to me, "A money claim has definite limits. But when will you ever discharge your obligation to the proud and the fine in the House of the Loom? You intruded on their grief. Yet they held their guest sacred as their grief."

T

HE Muskogee or Creek Nation was, by virtue of a treaty with the United States Government, the absolute owner in fee simple of an extensive region in the Indian Territory containing land of great fertility and valuable resources of oil and minerals. The land was held in common by the tribe, and the white men who entered the territory were mostly trespassers. But they came in considerable numbers, and, together with some of the Indians and half-breeds, they began to settle in towns throughout the reservation, building small houses, sinking wells, fencing their lots and fields, sowing crops, and planting orchards. They had not a shadow of title to the land of which they thus took possession. individual occupant, whether Creek or American, could lawfully acquire any exclusive title to any part of this land. Even the Creek Nation itself could not convey to an individual any such title, without the consent of the United States Government. This title, which the Government had granted, was one which it was in honor bound to defend against all usurpers.

But it had been the policy of the Government to encourage the Indians to hold lands in severalty, and on March 3, 1893, Congress created the so-called Dawes Commission to negotiate treaties for the allotment of such lands among the individual members of the tribe and for the extinguishment of the tribal title.

It was determined to adopt a different policy, however, with the growing towns from that which was adopted in regard to farm lands. While the latter were to be allotted to individual Creek citizens, the town sites were to be sold and the proceeds given to the tribe. By the so-called Curtis Act, 1898, it was provided that certain towns should be laid out and the lots therein scheduled and sold. The squatters, however, were treated with liberality. The commissions which laid out the towns were to appraise the lots and the improvements separately, and the owner of any improvements might buy

the lot on which they were made at halj its appraised value; otherwise the lot was to be sold and he was to get the whole value of his improvements. The theory of these provisions was that although settlers had no title, yet, inasmuch as their settlement and their improvements added to the value of the real estate, they should be allowed onehalf the value of any lot they wished to buy.

The town of Muskogee, containing at that time a population of some four thousand five hundred souls, was the largest town in the Creek Reservation, and may well serve as an illustration of how the tribe was despoiled of its land. Under the Curtis Act a town-site commission was appointed for Muskogee, and proceeded to survey and plat the land. The town contained two thousand four hundred and forty-four acres, and was divided into three thousand eight hundred and ninety-five lots. An appraisement was made of the lots and improvements separately, and the improved lots were scheduled to the owners of these improvements. The appraisement was approved June 28, 1900; but no sales were made, because the proceedings of the commission were enjoined for a considerable period, on the ground that the Curtis Act was unconstitutional, since the Creek Nation had never consented to the extinguishment of its tribal title.

In the meantime there were negotiations for a treaty for the allotment of Creek lands and the laying out of town sites, and on March 8, 1900, an agreement was made for this purpose between the United States Government and the Creek Nation. The clauses in this treaty were nearly all written by the members of the Dawes Commission, who represented the Government in the negotiations, and the five Creek delegates, who represented the tribe, had little to say about them, being prepared to accept almost any terms to escape from the burdens of the Curtis Law, which they considered oppressive.

In these negotiations a persistent effort was made by the squatters to secure pro

visions giving them the right to keep the land they had taken, or, as they called it, "to protect bona-fide holders of vacant property," and the result was four sections of the act most inartificially and obscurely worded and extremely difficult of interpretation. If the purpose had been to facilitate fraud upon the Indians, it could hardly have been better done than by the language employed.

Section 11 provided that the owners of improvements "other than temporary buildings, fencing, and tillage" might purchase a lot at one-half its appraised value. The exclusion of temporary buildings, fencing, and tillage would appear to be for the benefit of the Creek Nation; yet upon the legal principle that the exclusion of one thing is the inclusion of another, everything else under heaven was held to give a right to the lot. Moreover, the failure to define what temporary buildings were, naturally led to the narrowest possible construction of the term. We shall consider these abuses hereafter.

Another snare lurked in this section. When must these improvements be put on? At the time of the passage of the act, or when the commission happened to come to that particular lot to lay it out? It was construed to mean the latter, and such construction led to a scamper for the manufacture of early improvements-put up, perhaps, in a night—whereby lands in great quantity were claimed and secured.

Moreover, the owners of these " permanent " improvements were "protected" in another way. If they did not want to buy a lot at half-price, they ought at least to be satisfied to receive back the value of their improvements. But no. The act provided that the lot and improvements should be sold at auction at not less than the appraised value, and the purchaser should pay the whole purchase price to the owner of the improvements, less the appraised value of the lot. Under this the maker of these improvements could not get less than their value, but he might get a hundred times more. If the appraised value turned out to be less than one-tenth of the selling value, as often occurred, the remaining nine-tenths belonged, not to the Creek Nation, but to the man who had dug a well, or a foun

dation, or dumped a few cart-loads of earth for grading.

Under Section 12, any person having the "right of occupancy" of a residence or business lot, or both, whether improved or not, and owning no other lot, might purchase it at half its appraised value. When must he have this right of occupancy? The law was silent, but the townsite commissions construed the section in the favor of the squatter. It referred, they said, to the time when the commission made the schedule; so there was a race for lots and for quitclaim deeds from persons who could not keep the land in their own names. The terms of the act itself furnished one of the best instrumentalities possible for the commission of fraud.

These sections all speak of "rightful possession," "right of occupancy,” “legal possession," etc., but nowhere is there any definition as to what rightful possession is. The result of this ambiguity was that any sort of possession not contested by some other individual was considered good against the Creek Nation, the real owner of the indefeasible title to the fee.

Moreover, payments by installment were provided for-ten per cent within sixty days, fifteen per cent more within four months, and the remainder in three equal annual installments; but if the first installment was paid there was no forfeiture. The result was that in many cases the first payment was made, and no others for several years. During that time it could be determined whether the land would become more valuable or not. If it did, the person to whom it was scheduled could make the payment, plus interest. If not, he lost only the ten per cent paid.

In the meantime the right to sell was suspended, and lots for which a greatly advanced price could be obtained were thus held up for years, awaiting the pleasure of the persons to whom they were scheduled, until a new act of Congress was necessary to fix a time within which such payments must be made.

Let us now see what was done under the provisions of this extraordinary treaty. The former town-site commission of Muskogee was reappointed and directed to report for duty on July 1, to re-schedule these three thousand eight hundred and

ninety-five lots and complete their schedule by July 15. The time was afterwards extended, but the scheduling was completed August 3, and was approved in Washington August 10. The time allowed was unreasonably short. The original appraisement of lots had been made a year before, and real estate had advanced in value, but there was no time to make a new appraisement, so the old one was taken, to the disadvantage of the Creek Nation.

Immense numbers of claimants, not less than two thousand two hundred and seventy-two in all, appeared before the town-site commission by themselves and others, claiming under Sections 12, 13, and 14 of the Creek Agreement. Indeed, the great majority of names of the persons to whom lots were scheduled were added during this brief period. As the prices were very low, everybody was seeking lots. The business methods of the commission in considering the claims of these new applicants were execrable. Everything went. If a man showed a bill of sale or a quitclaim deed, or showed any number of them made to persons anywhere on the face of the earth, the lots were immediately scheduled to these persons without inquiry, and no record was made showing upon what sort of a claim the scheduling was done. The quitclaims and bills of sale were returned to the parties exhibiting them, no copies were preserved, nor any records of the character of the claim of title or right of occupancy.

The minutes of the commission and nearly all of its papers have disappeared. Practically nothing can be found showing the manner in which the commission did its work in passing upon the claims of applicants after their reappointment in 1901.

Did the appraisements represent the actual values of the lots? Excluding the railway station grounds, the number of acres in Muskogee was two thousand three hundred and eighty-three. The appraised value of the town was $238,835, or $100 per acre. The population of the town was four thousand five hundred to five thousand. It was an excedingly prosperous, progressive town in the midst of very fertile country. Is there any other

town in America of this size and description where the value of the real estate does not greatly exceed $100 an acre?

It

The schedule and appraisement were completed and approved August 10, 1901. On the first Monday in February, 1902, the town of Muskogee made an appraisement of these same lots for taxation. was a low one, yet the value of the appraised lots, apart from the improvements, was $1,063,366, or more than four times the amount of the appraisement of the Muskogee town-site commission, completed six months before. A few illustrations will reveal the glaring inequalities. Lots 2 and 3, in block 2, were appraised by the commission at $340, and for taxation at $4,275. Lot 4 was appraised at $150 by the commission, and for taxation $1,875. Lots 1, 2, 3, and 4, in block 3, were appraised by the commission at $550, and for taxation at $6,750; lots 5 and 6, in block 3, at $125, and for taxation at $2,000 each. And thus the list goes

on.

Less than a year after the Muskogee schedule was approved, some of these lots were sold at public auction. There were comparatively few, for nearly all had been claimed under such a favorable appraisement. No doubt the lots reserved for sale were poorer lots, or lots which had been appraised comparatively high; yet in July, 1902, lots which had been appraised for $7,983 sold for $22,595, nearly three times the appraisement. In individual instances the discrepancy was much greater. For instance, lots 7, 8, 9, 10, and 11, in block 158, were appraised at $10 each and sold for $360, $365, $301, $280, and $279 respectively.

Some of the lots had been sold by the occupants to others at the time of making the schedule. Lot 27, in block 28, sold for $2,000; the improvements on it were appraised for $1,000. Yet a lot thus worth $1,000 apart from the improvements was appraised at $80. The deed, which was actually taken before the townsite commission to show title, stated the consideration of $2,000, yet $80 was put down as the value of the lot! Lot 26, block 28, was worth at the time of the schedule between $2,000 and $3,000 without the building on it. appraised at $245, and so on.

It was The town

site commission arbitrarily divided the lots into four classes, and appraised class A at 4 cents a square foot, B at 2 cents, C at 1 cent, D at 3 to 4 of a cent, and E at

of a cent, without any reference to actual value. It was purely arbitrary, and might as well have been one mill or fifty dollars.

Lots were scheduled to various persons on the ground of improvements which were fictitious. Since the appraised valuation in Muskogee was really less than onethird of the real value, this right gave the possessor of these improvements the right to purchase at less than one-sixth the actual value, and it becomes important to know what kind of improvements conferred this valuable privilege.

Mr. Tams Bixby, who was for some time Commissioner to the Five Civilized Tribes, thus describes the character of the improvements upon three large lots, embracing a whole block which was scheduled to him:

tar and costing $20 were allowed, also trees set out, where the parties claimed a home in the same town. Under this construction of the law people became very industrious while the commission was in a town." Everybody was a carpenter or a stone mason."

After the schedule of Muskogee was approved, notices of appraisement were served upon the parties to whom the lots were scheduled, informing them of the fact and giving the amount of the appraisement and the terms of payment. Sometimes these notices were served by copy, sometimes service was acknowledged on the notice itself. An examination of these notices shows, in one case, that some six hundred and twenty-five of them were acknowledged by a single individual as 66 agent" for the persons to whom the lots were scheduled.

The deeds were shown to the commission, occasionally by the persons to whom they were made, but more gener

A. There was a fence around it. Q. Were there any other improvements on it?

A. I think there was a well. There was a piece of tin tubing stuck in the ground, but whether it was a well or not I don't know. It might have been a drilled well, but I never made any inquiry about it being of any use practically. It had no curbing or anything

about it.

Q. Were there any other improvements? A. No, sir, nothing but a fence; just a common rough lumber fence.

Q. There were no other improvements? A. I don't know how you look at it-what you call improvements. There were some trees, fruit trees I think, some on each lot.

Q. How old were those fruit trees? A. They were not very old. . . . There might have been twenty in the entire block.

Foundations for a house, earth which had been carted for the purpose of filling the lot, and buildings which in any other part of the world would be considered temporary, were all held to give a claim by virtue of this section.

In other towns the commissioners determined that all improvements worth over $20 should be deemed permanent! But a well, whether dug or bored, which had water in it was considered a permanent improvement, even though it did not cost $20, because it could not be removed! Foundations put down by stone and mor

sion required no other proof of ownership, and the lots were at once scheduled to the parties named. The "agent" then, usually without further authority, acknowledged service of the notices of appraisement, and in five hundred and forty-five cases out of six hundred and twenty-five he made the payments for the lots; and after deeds to these respective lots had been executed by the Creek Nation, he caused the various persons to whom the quitclaims had been made, to deed the lots back to him or to a company he controlled. About eighty per cent of the property was thus deeded back, and the transfers were merely colorable to enable him to hold large tracts of land in violation of the Creek Agreement.

Many witnesses testified that they had never received a quitclaim or bill of sale from the "agent" at all before the lots were scheduled to them. It would thus appear that these quitclaims had never been delivered, and the right to schedule the lots in such cases did not exist.

Some of the parties never gave the "agent" any authority to make the schedule for them. Generally no corsideration was paid for the quitclaims. These parties understood that the "agent" was to have the lots; that they were