Sale of School Lands on the Osage Diminished Reserve
©2016 Nancy S. Cleaveland
The lands of the Osage Indians in Kansas, including the trust lands north of the Diminished Reservation, ‘shall be opened to settlement after survey, excepting the sixteenth and thirty-sixth sections, which shall be reserved to the State of Kansas for school purposes.’ – Act of July 15, 1870, U.S. Stat. 16: 362
“The liberality of the provision, and the object to which said lands are to be applied, are commendable in the extreme; but, as very often happens, the good of the many is only at the expense of the few. The settlers who are innocently occupying [school] sections will not be able to see anything in it but hardships.” C. Delano, Secretary of the Interior, to Hon. Willis Drummond, Commissioner General Land Office, February 14, 1871
When public lands were surveyed under the direction of the United States government, preparatory to bringing the same into market, sections numbered sixteen and thirty-six in each township were typically reserved for the benefit of schools, although in some cases (if the law so stated) equivalent lands were chosen in lieu of school sections if those were already to be found occupied at time of survey. Sections 1-15 and 17-35 could be sold as specified by acts of Congress, or under terms of the Preemption Act (1841), Homestead Act (1862), or Timber Culture Act (1873), depending on the year; those sales were carried out under the auspices of the General Land Office. Those lands in Montgomery County, Kansas, that had been part of the Osage Diminished Reserve (part of Montgomery County was part of the Osage Ceded Tract, and a strip across its south border was part of the Cherokee Strip) were legally opened to settlement under terms of the Act of July 15, 1870 (the Drum Creek Treaty), and signed by chiefs and headmen of the Osage Tribes as well as United States government officials and representatives at the Osage council grounds near the Verdigris River in Montgomery County. The last signature was obtained on September 10, 1870.
Interior lines of the former Diminished Reserve lands in Montgomery County were surveyed in February 1871 and the first purchases in Montgomery County were registered at the Humboldt Land Office in July. The plats had been received and the land office opened on June 26, ready for business. Those who claimed to have settled on their land prior to July 15, 1870, were required to make proof and payment by the 15th of July 1871. Settlers who claimed first occupancy after that date were required to file within three months of the receipt of plats at the land office, and to make proof and payment within one year from date of settlement. Bankers and loan officers were ready to offer loans at up to fifty percent interest!
School sections were sold at the state level, and both the price of school lands and how their sale was conducted varied widely from state to state. In the case of the former Osage Diminished Reserve land in Montgomery County, Kansas, Charles Ingalls had the great misfortune to have built his cabin about three chains over the section line on what surveyors on February 14, 1871, mapped as the southwest corner of Section 36, Township 33 North, Range 14 East of the 6th Principle Meridian… a school section. Independence attorney John Helphingstine, a former superintendent of schools who was elected County Clerk in 1870, and his partner, Daniel Grass, were ready in advance of the land office to handle the purchase of school sections, recording the first Montgomery County purchase in May 1871. Records were kept by the State Auditor, with most school land records transferred to the office of the Secretary of State when the position of Auditor was abolished in 1975.
Although Eileen Charbo and Margaret Clement – whose research helped pinpoint the location of the Ingalls family in 1870 based on census records and the presence of a hand-dug well on Section 36 – separately sought evidence that Charles Ingalls had filed a claim or purchased land in Montgomery County, both neglected to address school sections at all, and their research is both incomplete and misleading.
Purchasing school land wasn’t for the faint of heart, for it involved many steps. Here, instead of cutting/pasting the legal wording of AN ACT PROVIDING FOR THE SALE OF SCHOOL LANDS, enacted by the Legislature of the State of Kansas in 1864 with its several amendments passed through the end of 1871 (by which time Charles Ingalls was back in Wisconsin), the following paragraphs outline the steps Charles Ingalls would have taken had he stayed in Montgomery County and purchased 40 or more acres in Section 36. There would be tract book records or an existing claim file had he filed on land in 35-33-14 or in 1-34-14 and/or 2-34-14 to the south. As his cabin was built near the section line, he might also have done what Bennett Tann did, file on 80 acres in Section 35 and purchase 80 acres in Section 36. Each step below is illustrated using a document pertaining to either school land purchases in 36-33-14 or other school lands purchased in Montgomery County. For reference, my map above shows Sections 35 and 36, and sections surrounding and near where the Little House on the Prairie Museum is located on County Road 3000 east of Highway 75 southwest of Independence, Kansas.
Following the organization of a township, a petition was filed with the Superintendent of Public Instruction by twenty householders stating that they wished the whole or some portion or all of a school section to be made available for purchase. The School Superintendent then asked the County Commissioners to appoint, in writing, three disinterested householders who resided in the township in which said school section was located, who, under oath, appraised separately each legal subdivision (forty acre parcel) of the school section as to the value of land as well as any improvements which had been made upon the land, even if these had been made by a previous occupant. The County Clerk recorded all appointments and appraisals and kept them on file in his office.
No settler could purchase more than 160 acres of school land, and no school section was to be appraised and sold for less than three dollars per acre. In comparison: preemption price was $1.25 per acre and a 160-acre homestead could be obtained for under $20 in filing fees and notices; all three, of course, required the additional expense of improvements and residency.
A person who settled on school land then filed in Probate Court a petition stating that he had settled upon the land, had made improvements, and had petitioned the superintendent for the proper appraisals. The school superintendent and petitioner appeared before the probate judge to present the appraisals.
Any person purchasing school land paid to the County Treasurer one-tenth of the total purchase amount, taking his receipt to the County Clerk together with a bond in double the amount of the purchase money unpaid, swearing he would not commit waste upon the land; no natural timber was to be removed except to be used in improvements upon the land, and no minerals were to be removed. Lands purchased under this act were subject to taxation the same as if they had been purchased directly from another seller, and in the case of non-payment of taxes, the lands were reappraised and sold subject to the same conditions as originally specified. All unsold school lands were reappraised every five years.
Any person failing to pay the purchase money for school land, or any installment, forfeited his right to the land and was subject to ejection from the land by the County Attorney.
The Ingalls family was back in Pepin the first week in May 1871, or earlier, as Mary Ingalls was enrolled in school on May 8. The Ingallses most likely remained in Kansas until after the February survey and the realization that under terms of sale for both school lands and other sections, Pa would most likely be unable to afford his land. It must have been quite the blow to learn that your land would cost more than twice what most settlers would be paying for theirs.
Settlers were also crowding him out on what had been wide-open prairie with few neighbors when the Ingallses arrived. In the months after the census, M.A. Streeter had moved on the section to the south, and Hayden Barbour diagonally to their southwest. The Sands brothers had been living in Independence at the time of the census, but took over 120 acres west of the Ingallses, and one of the brothers claimed Pa’s land once he moved on. Because Gustaf Gustafson had defaulted on the purchase of Pa’s Pepin farm, ownership had already reverted to Pa at the time of the 1870 census. Payment of property taxes on Pa’s Pepin land was already two years in arrears.
When the Osage Diminished Reserve was open to legal settlement, it was widely circulated that under the terms of the Act of July 15, 1871, proof and payment (for non-school lands) of $1.25 per acre would be due on or before July 1, 1871. This would be a great hardship, falling before harvest, and the Department of the Interior extended the payment deadline to a date in September, then November, but these changes were made after the Ingallses had already returned to Wisconsin. The idea that claims must be filed on “square” parcels of land was also hotly debated, even in regard to school lands. Under this policy, Pa might have purchased 40 acres of school land for $120 and claimed 40 acres in Section 35 for $50, but unless a buyer for his Pepin farm miraculously appeared, this, too, was likely more than he could afford.
The threat of removal by soldiers wasn’t a likely scenario (reports about soldiers removing settlers applied to the Cherokee lands to the south, not the Diminished Reserve), but threat of eviction by the County Attorney, Frank Willis, was a certainty if school land payments could not be made by July 15th. And to make matters even worse, it was illegal to remove any timber or stone from school lands that were unoccupied, with penalties for cutting trees or removing building stones up to $2000 and up to six months in jail with one month mandatory jail-time. Even if Pa remained on the southwest corner, for example, it would be illegal for him to cut trees for firewood or building purposes along Walnut Creek to his north.
The purchaser swore that he would pay the balance of the purchase amount in no more than ten annual installments, together with interest on the amount unpaid at the rate of ten per cent per year (this was later reduced to seven per cent interest). The total purchase amount could be paid in full at any time. The County Treasurer forwarded payments to the State Treasurer.
At the time of the first payment, the County Clerk entered the terms of sale in a book kept for that purpose, and he issued to the purchaser a Certificate of Purchase of School Lands, showing the amount paid and the terms of the sale. Interest on annual payments were appropriated to the support of schools under the direction of the State Superintendent of Public Instruction.
The County Clerk filed annual statements to the State Auditor on or before January 1, providing an abstract of transactions, listing principal and interest separately. The State Auditor compiled records from each county and made apportionment back to them. Proceeds were invested by a board of commissioners for the management and investment of school funds, in either State or United States bonds or other interest-paying securities.
Upon payment of the full purchase amount plus all interest due, the purchaser was issued a state patent signed by the Governor.
School Section acreage now patented could be sold by the owner at any time, and such sales/purchases were recorded by the Register of Deeds and appear in county deed records from this point forward.
sale of school lands on the former Osage Diminished Reserve