USA > Louisiana > The province and the states, a history of the province of Louisiana under France and Spain, and of the territories and states of the United States formed therefrom, Vol. III > Part 51
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3d, Slavery to be abolished and measures taken to incorporate the slaves into the tribes with their rights guaranteed.
4th, A general stipulation as to the final abolition of slavery.
5th, A part of the Indian country to be set apart, to be pur- chased for the use of such Indians, from Kansas or elsewhere, as the government might desire to colonize therein.
6th, That the policy of the government to unite all the Indian tribes of the Indian territory into one consolidated government should be accepted.
7th, That no white persons, except government employes, or officers or employes engaged on internal improvements authorized by the government, would be permitted to reside in the country, unless incorporated with the several nations.
The treaties were not concluded at the conference at Fort Smith, owing to the fact that all the delegations were not authorized by their people to sign them, and also because each tribe had two delegations present, the one representing the loyal Indians and the other representing those who had taken up arms against the gov- ernment. The commissioners decided that these internal dissen- sions must be settled before further steps could be taken. The feud between the two factions of the Cherokees was particularly bitter, and the only one that did not offer a prompt solution. John Ross had returned from exile in the North, and although he had been superseded as chief of the nation, was influential in guiding the course of the delegation of "loyal" Cherokees in their appeal to the commission.
These Cherokees claimed that they had never in spirit been dis- loyal to the United States ; that their participation with the South
518
THE PROVINCE AND THE STATES.
for a short tine, had been due to their isolated position, away from the Union lines, and practical coercion on the part of the Confederate army. Proofs were submitted for and against this claim and the time of the commission was largely occupied in endeavoring to reach a decision that would do justice to the Cherokees who had fought for the government and also to bring about a reconciliation between the two factions.
But in the main the Indians were willing to accept in substance the propositions submitted to them, and delegations were sent to Washington in January, 1866, to conclude the treaties. As at Fort Smith, however, there were double delegations in each case, and the work of consummating the treaties was delayed on this account.
The first treaty was concluded with the Seminoles on March 21, 1866. By this treaty 2, 169,080 acres of land, secured to this tribe in 1856, were ceded to the government for three hundred twenty- five thousand three hundred and sixty-two dollars. The tribe was assigned a new reservation of some 200,000 acres at the junction of the Canadian with the North fork, for which they paid one hun- dred thousand dollars. Of the money paid this tribe fifty thousand dollars was set apart to reimburse the loyal Seminoles for losses sustained by reason of the war. Permission for railroads to secure a right of way through their reservation was one of the stipula- tions of this treaty, a clause which was inserted in all the treaties.
Another provision inserted in the treaty with the Seminoles, as well as in those with the other civilized tribes, created a general council to be held annually in the Indian country, which was to have supervision over all matters not coming under the jurisdic- tion of the several nations, such as the protection of the rights of the freedmen, and the policing and government of the tract known as Oklahoma, ceded to the government for the colonization of Indians from Kansas and other parts of the country. A superin- tendent or governor was provided for, and clauses inserted mak- ing arrangements for a secretary of the council, pay of members, appointment of marshal, etc.
By a treaty concluded April 28, 1866, the Choctaws and Chick- asaws ceded "leased lands" amounting to 6,800,000 acres for three hundred thousand dollars, and agreed to set apart 40 acres for each freedman.
The treaty with the Creeks was made June 14, 1866, and by its terms the freedmen were given full equality in the national soil and funds. They ceded 3,250,560 acres and received therefor nine hundred seventy-five thousand one hundred sixty-eight dol-
519
INDIAN TERRITORY, THE INDIAN POLICY.
lars. Of this sum one hundred thousand dollars was set apart to repay losses sustained by the loyal Creeks during the war.
Considerable difficulty was encountered when a treaty was attempted with the Cherokees, on account of the two factions existing and the claim of the Ross party that they had always been loyal to the government. The Ridge or Watie party insisted on the establishment of a separate government and a division of the funds and lands, which was as vigorously opposed by the Ross party. Finally the government concluded a provisional treaty in June with the Watie delegation, as the national party had refused to meet certain propositions. This treaty was afterward withdrawn and a new treaty made with the whole tribe on July 19, 1866. By the terms of this treaty the followers of Watie were located in a specific part of the domain of the Cherokee nation, called the Canadian district, but the original government of the nation was allowed to remain intact. The freedmen were allotted 160 acres each, in the same tract as that occupied by the Watie faction. Provision was made for a United States court to be established in the territory.
1
520
THE PROVINCE AND THE STATES.
CHAPTER III
Indians Under Recent Changes
L IKE other Southern states the Indian territory passed throughi a reconstruction period following the Civil war. In nearly every tribe there existed two warring factions. The guerrilla warfare which had existed during the conflict and laid waste the land, inspired a lawless spirit, which resulted in many crimes being committed in the years immediately following the war. .
The Indians were broken in spirit. They clearly foresaw by the wording of the treaties of 1866, which they were forced to sign, that the United States government intended to take a hand in the management of the affairs of their country. But notwith- standing these fears they accepted the pledges of good faith on the part of the government that they would be undisturbed in their possession of the country.
Two features of the treaties of 1866 alarmed the Indians. The first was the stipulation that railroads should be granted right of way through their country, and the second was the evident inten- tion of congress, as voiced therein, to establish a general govern- ment for the Indian territory.
In July, 1866, the United States granted charters to two rail- roads to enter the Indian territory, and these roads, viz., the Mis- souri, Kansas & Texas railroad and the Atlantic & Pacific rail- road began the extension of their lines under these charters. By the terms of these charters these railroads were granted alterna- tive sections of land along their lines, provided the Indian title to the lands was extinguished and they became part of the public domain, or if they were voluntarily ceded to the roads by the Indians.
521
INDIAN TERRITORY, RECENT CHANGES.
Many of the Indians laid the blame for the loss of their former prestige to the entrance of the railroads into their country. There is no doubt that the building of these roads brought the Indian country into closer relations with the rest of the United States, and opened up the way for an invasion of the whites. A lawless element followed along the lines of the railroads, and as a result the territory soon became known as a refuge for fleeing criminals from other states and territories, contiguous thereto. These out- laws organized themselves into bands, held up trains, robbed postoffices and banks, committed murders, and other heinous crimes. When pursued they fled across the line into Indian terri- tory, where the tribal courts were too weak to cope with them and where the jurisdiction of the courts of the United States did not extend.
The Indians complained to their agents that the whites were intruding upon their lands and many arrests were made and the intruders ejected. Being naturally an indolent race, however, the Indian landholders sought help to till their fields, and a great many white laborers were imported. These farm hands were allowed to reside in the territory under permits granted by the Indian authorities, who became dissatisfied with the permit law and repealed it. Application for a permit was then made to the agents of the government. At the expiration of these permits many of the holders remained in the territory, some in employ- ment and some out.
The influence of the half breeds and squaw men began to be felt more than ever in the organization of the local governments. The full-blood had no other ambition than to live quietly in his cabin in the foothills, provided he received his share of the gov- ernment patrimony. When he had expended his income from this source he looked to his richer neighbors to feed and clothe him. The control of affairs soon passed into the hands of a few men in each nation, who acquired the possession of vast tracts of land to which they had no better right than other citizens. These lands they leased to whoever paid rent therefor. In this manner town lots were rented to whites and the little stream of white immigra- tion into the territory swelled into a river. The inauguration of this feudal system caused the administration of the national gov- erments to become corrupt. Bribery became the customary method for obtaining favorable legislation. The Indian republics ceased to exist and in their stead there arose white oligarchies.
The provision in the treaties of 1866 for the establishment of a general council or assembly, which was intended to meet annu- ally and legislate for the general welfare, was not received with
522
THE PROVINCE AND THE STATES.
enthusiasm by the Indians. They thought they saw a snake in the grass. There is no doubt that the provision referred to was incorporated into the treaties as an opening wedge looking to the ultimate organization of the Five nations into a territory. The language of these treaties relative to this section is not identical, but the matter is provided for in each treaty. In the treaties with the Choctaws and Chickasaws, even the name of the proposed ter- ritory, is mentioned, viz., the territory of Oklahoma, and the super- intendent of Indian affairs, who was to be the executive officer, is designated therein as "governor."
There was nothing in this section of the treaties of 1866 that made it obligatory on the part of the Indians to take steps to organize a territorial form of government, that being optional with them. They interpreted the language of the treaties to mean that this general council or assembly was to provide for a discus- sion of inter-tribal problems, and the adoption of milk and water policies for the general welfare. They met annually as provided for in the treaties, but failed to legislate along the lines advocated and suggested in the treaties, and congress at that time omitted to appropriate funds for the support of the assembly. The hope of congress that the Indians would of themselves organize some sort of general government that would be satisfactory, was doomed to disappointment. At one time the so-called Indian assembly adopted a constitution and sent it on to congress, but it was so widely at variance with the provisions of their treaties, that con- giess would not ratify it. This constitution was drafted by Wil- liam P. Ross, a descendant of John Ross, and under its provisions a practically independent government was to be established. The officers were to be sworn to support the constitution of the Indian territory and not the constitution of the United States. The Indian leaders had not ceased to dream of an Indian empire or Confed- erate government.
Thus we see that the Indians themselves were opposing any form of territorial government for their country. But the ques- tion of some form of territorial government, which would guar- antee law and order in that section of the country, give the whites and freedmen, settled therein, equal privileges with the Indians, was agitated at each session of congress. Many bills were drafted for this purpose, but the Indians have to this day been suc- cessful in preventing such legislation.
While these bills did not contemplate, as a rule, the abolishment of the tribal organizations and Indian autonomy, they did provide for the division of the lands in severalty. This segregation of lands was contemplated in the treaties of 1866, a provision was
523
INDLIN TERRITORY, RECENT CHANGES.
made therein for the surveying and laying off of the Indian lands in sections.
In opposition to these measures for a territorial government, the Indians claimed that congress in passing such legislation would be violating treaty obligations, and that the measures were backed by railroad corporations and whites who desired to possess them- selves of the lands of the Indians. This contention of the Indians was supported by a large element throughout the country, who cried out against the Indians being robbed.
While the Indians had never denied the supervision of congress over their country, they maintained that their lands had been patented to them and their posterity and that congress had no riglit to take it away from them without their consent. In oppo- sition to these claims it was set forth that the United States had never ceased to assert in legislation, in judicial decisions, and in the conduet of wars with the Indians, the rightful political supremacy of the United States over them as individuals and as local gov- ernments. It was denied that their titles and rights to their lands were those of sovereigns such as states possess, but only rights of occupancy subject to the will of congress.
The political relations of the United States with the five tribes of the Indian territory have been defined by several decisions of the supreme court. The first case relative to the power of con- gress to abrogate or modify treaties made with the Indians came before the supreme court in 1870 and was known as the Cherokee Tobacco case. The question presented by the record in that case grew out of a conflict between the Federal internal-revenue law and a provision in a Cherokee treaty. The government attempted to collect internal-revenue taxes on certain tobacco owned by citi- zens of the Cherokee nation, and when the tax was refused endeavored to confiscate the tobacco. The point was made that the internal-revenue law did not apply to the Indian territory, and, if it did apply, it was in violation of Section X of the treaty of 1866, which exempted the Cherokee Indians from the payment of any taxes on farm products, merchandise, manufactured prod- ucts, etc. The court ruled that the act of congress prevailed over the treaty. The supreme court, in a recent decision delivered by, Justice White, says :
"Prior to the Act of March 3, 1871 (16 Stat., 544, 566, now Section 2079 of the Revised Statutes), which statute, in effect, voiced the intention of Congress thereafter to make the Indian tribes amenable directly to the power and authority of the laws of- the United States by the immediate exercise of its legislative power over them, the customary mode of dealing with the Indian
524
THE PROVINCE AND THE STATES.
tribes was by treaty. As, however, held in Cherokee Nation v. Southern Kansas Railway Co. ( 135 U. S., 641, 653, reaffirmed in Stephens v. Cherokee Nation, 174 U. S., 445, 484), while the Cherokee Nation and other tribes domiciled within the United States had been recognized by the United States as separate com- munities, and engagements entered into with them by means of forinal treaties, they were yet regarded as in a condition of pupil- age or dependency, and subject to the paramount authority of the United States.
"Reviewing decisions of this court rendered prior to the act of 1871, and particularly considering the status of the very tribe of Indians affected by the present litigation (Cherokees), the court commented upon a declaration made in a previous decision that this Government had 'admitted, by the most solemn sanction, the existence of the Indians as a separate and distinct people, and as being invested with the rights which constitute them a state, or separate community.' It was observed of this declara- tion that it fell 'far short of saying that they are a sovereign state, with no superior within the limits of its territory.'
"In re the Indian title to the lands they hold, the court said in the case of Beecher v. Wetherby (95 U. S., 525) :
"But the right which the Indians held was only that of occu- pancy. The fee was in the United States, subject to that right, and could be transferred by them whenever they chose. The grantee, it is true, would take only the naked fee, and could not disturb the occupancy of the Indians; that occupancy could only be interfered with or determined by the United States. It is to be presumed that in this matter the United States would be gov- erned by such considerations of justice as would control a Chris- tian people in their treatment of an ignorant and dependent race. Be that as it may, the propriety or justice of their action towards the Indians with respect to their lands is a question of govern- mental policy, and is not a matter open to discussion in a contro- versy between third parties, neither of whom derives title from the Indians."
As long as the Indian country remained a thousand miles from the centers of population, congress had been content to allow the Indians to live and die in their own way, without let or hindrance ; but when that leveler of all races, the railroad, ploughed its way into the Indian Canaan, bringing with it an army of whites, the conditions soon became such that congress was compelled to step "in and assume control.
Recuperating from their losses sustained during the war, the Indians in a few years found themselves again in a prosperous
525
INDIAN TERRITORY, RECENT CH.INGES.
condition. Statistics for 1878, published by the commissioner of Indian affairs, show that the five nations had 245,000 acres of land under cultivation, on which were raised that year 494,400 bushels of wheat, 2,642,000 bushels of corn, 201,000 bushels of oats and barley, 320,000 bushels of vegetables, 17,500 tons of hay ; the Indians owned 40,000 horses, 4,750 mules, 236,000 cattle, 173,000 swine and 22,500 sheep. The following table, published at the same time, gives a fair idea of effects civilizing influences had had upon the Indian race :
Nation.
Popn-
Jation.
Louses.
Children
of school
No. of school budding».
Attendance one month
Ainounte :-
j.ended for
I education
| No. who
can read.
Church
buildings .?
No. of mis- sionaries
Cherokee .
18,072
3,750
4
1.600|
1, 400 $ 3, 441 |15, 000 (O0, 27,33:
10, OuJ
21
7
Creok.
14,001,
4,00: 17, 000
32
315
81 1:,000 3,000
35
+
Seminole ..
2.11 ..
مماعرف
:00
3
2
Chickasaw.
5, 60%
1,000
2
20
1:0 21,000 2, 500
10
3
30
36
Choctaw .
10,0 0
11,200
3
50
age.
Boundary bay.
A number of the young men and women were annually sent east to be educated at Carlisle, Hampton and other Indian schools. Although many of the full bloods remained in ignorance, there was a good deal of rivalry among them as to whose sons, and daughters should be sent away to these schools, the graduates of which were given prominent positions in the local governments, it they chose to enter public life. The local schools were not sup- ported by taxation, but by interest payments on the funds held in trust by the United States, the specific purpose for which such payments should be used being generally designated in the several treaties.
That district lying immediately west of the Creek and Seminole lands, and ceded to the government by those nations in the treat- ies of 1866, was known as Oklahoma, and became the bone of contention over which many a bloodless battle was fought, first on the lands of the district itself and then in the halls of congress. The invasion of this land by Capt. David L. Payne and his col- onies in 1880, and subsequently, and the contest that waged between these "boomers" as they were called, and the cattle kings. already in possession of the coveted lands under leases belongs to the history of the territory of Oklahoma and uved only be touched upon in this sketch to show the events that led to the opening up of the western part of the Indian territory to white settlement and the carving of separate territory therefrom.
The land was acquired by the government from the Creek and
526
THE PROVINCE AND THE STATES.
Seminole Indians, for the express purpose as stated in the treaties, of locating Indian tribes thereon, from other parts of the country. Years clapsed, however, without any attempt on the part of the government to carry out its expressed intention. It is true an agreement was entered into with the Sioux Indians in 1876 for their gradual transfer to the Indian territory, but congress made haste to strike out of the Indian bills any such provision.
In the meantime, these lands, and other vast tracts, some of them containing several millions of acres, were leased by the Indian nations to cattle kings, who fenced in the lands, and pre- vented any one from settling on them without their permission. The "boomers" from Kansas, claiming that the cattle kings held their leases unlawfully, that the land known as the Oklahoma dis- trict particularly, was part of the public domain and subject to the homestead laws, made repeated raids on these leased lands, and by orders from Washington were as often ejected from the territory. President Hayes, in a proclamation dated April.26, 1879, warned trespassers off the disputed lands, which he followed by a second proclamation on the same subject on July 1, 1884, and discussed the matter in a message to congress January 27, 1885.
Finally congress took cognizance of the alleged unlawful leases of Indian lands, and the senate committee of Indian affairs, under resolutions dated June II and December 3, 1884, and February 23, 1885, was directed to inquire into the conditions that prevailed in: the Indian territory.
This committee visited the territory in May, 1885, and heard a great deal of testimony relating to the leasing of the lands by the live stock corporations, and the methods pursued by them. The Indian bureau took the position that no authority rested with it to determine the validity of the leases under the law, but, when made, the lessees were entitled to protection by the government. The foes of the cattle kings, in demanding an abrogation of the leases, quoted Section 2116, U. S. R. S .:
"No purchase, grant, lease, or other conveyance of lands or of any title or claim thereto from any Indian nation or tribe of Indians, shall be of any validity in law, unless the same be made by treaty or conveyance entered into pursuant to the Constitution. Every person, who, not being employed under the authority of the United States, attempts to negotiate such treaty of conveyance, directly or indirectly, or to treat with any such nation or tribe of Indians for the title or purchase of any lands by them held or claimed, is liable to a penalty of one thousand dollars."
On the other hand the cattle kings maintained that they were
527
INDIAN TERRITORY, RECENT CH.INGES.
acting under the authority granted by inference in Section 2117, U. S. R. S .:
"Every person who drives or otherwise conveys any stock or horses, mules, or cattle to range and feed on any land of any Indian or Indian tribe, withont the consent of such tribe, is liable to a penalty of one dollar for each animal of such stock."
The conditions in the territory became intolerable, and grew worse and worse. The Indian governments became partisan, arbi- trary and corrupt. Property was amassed by a few at the expense of the masses. The inpouring white settlers were without protec- tion of law and without courts, except the tribal courts, to which they had no access.
The first relief was the creation and establishment of a United States court by the act of 1889. Following upon this came the act of May 22, 1890 (26 Stat., p. 81), establishing the territory of Oklahoma. A brief of the sections of this act which affect the Indian territory follows :
Section XXVIIII of the act defines and describes the boundaries. of the Indian territory ; limits the jurisdiction of the United States courts established in Indian territory under the act of March I, 1889 (25 Stat., p. 783), to the Indian territory as defined in the act.
The court established by the aforementioned act of March I, 1880, was given exclusive jurisdiction over all offenses against the laws of the United States committed within the Indian terri- tory not punishable by death or imprisonment at hard labor.
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