A history of the state of Oklahoma, Volume I, Part 24

Author: Hill, L. B. (Luther B.)
Publication date: 1908
Publisher: Chicago : Lewis Pubishing Company
Number of Pages: 645

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non-citizen should be removed, because at the time of making such improvements he was 'permitted' by the Indians and his resi- dence among them legal. While thus a legal resident of the country his labors and investments under contract with the Indian citizen have enhanced the value of the In- dian's holdings; these values cannot be re- moved with the non-citizen, and it is cer- tainly equitable that he should receive com- pensation therefor.

"In this second class I also include many non-citizens whose Indian landlords will not allow non-citizens in their employ to have a permit. For instance, one man in the Chickasaw Nation, an intermarried citi- zen, who has more than a hundred non- citizens on his farms, told me his men did not have and never had a permit; that he would not allow one of them to pay the permit tax; that if they were removed he would move them back; that if these men were intruders, he was responsible himself to his nation for it. This man and others like him are responsible, but the laws of the nation are not enforced against them.

"In all cases where a non-citizen becomes an intruder through violation of his con- tract with an Indian citizen it is held that the United States court in the Indian Terri- tory has full jurisdiction and can give to the Indian the possession of his farm, or the non-citizen may secure compensation for his services, as may be finally deter- mined by the court.

"The third class of intruders, and the one most productive of trouble in these nations, is that composed of so-called claimants to citizenship.

"This class is most numerous in the Cherokee Nation, though the Choctaws have one case, that of the Glen-Tucker et al., which has been pending in the de- partment for years, and which it is cur-

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rently stated involves the rights of five or six hundred persons. The Chickasaws have a few cases, which have arisen princi- pally from the fact that Choctaws are al-

lowed joint occupancy with the Chickasaws in that nation. The Creeks have a half dozen or so cases, none of which are caus- ing any appreciable degree of trouble."

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CHAPTER XV

THE FIRST RAILROADS

The series of treaties concluded in 1866 with the five principal tribes in Indian Ter- ritory all contained limited concessions of right of way for railroads through their country to the state of Texas. The elev- enth article of the Cherokee treaty contained a grant of right of way 200 feet in width to a contemplated railroad through their domain from north to south and also from east to west.1 In pursuance of these treaty concessions, as essentially a part of the same scheme, Congress, by appropriate leg- islation, (Acts of July 25, 26, and 27, 1866) granted public lands and privileges to the Kansas and Neosho, the southern branch of the Union Pacific, and the Atlantic and Pacific Railroad Companies, respectively,

for the construction of their roads. The Leavenworth, Lawrence, and Fort Gibson Railroad was also conceded like privileges. (See later chapter, "Organized Invasion ;" Sidney Clarke's statements.) The stipu- lated point of entering the Indian Territory was in each case the west bank of Neosho River, where it crosses the Kansas line. As there seemed to be some question whether more than one line of road would be per- mitted to traverse the Territory in each direction a race was inaugurated between all the north and south lines, each in the effort to outstrip the other in reaching the prescribed point for entering the Indian country. The Union Pacific Southern Branch (subsequently known as the Mis-

' The treaty with the Choctaws and Chickasaws contained the following provisions for railroads (Art. 6, treaty of April 28, 1866) :

"And it is also stipulated and agreed that the nation through which the road or roads aforesaid shall pass may subscribe to the stock of the par- ticular company or companies such amount or amounts as they may be able to pay for in alter- nate sections of unoccupied land for a space of six miles on each side of said road or roads, at a price per acre to be agreed upon between said Choctaw and Chickasaw nations and the said com- pany or companies, subject to the approval of the president of the United States: Provided, how- ever, That said land, thus subscribed, shall not be sold, or demised, or occupied by any one not a citizen of the Choctaw or Chickasaw nations, ac- cording to their laws and recognized usages: Provided, That the officers, servants and employes of such companies necessary to the construction and management of said road or roads shall not be excluded from such occupancy as their re- spective functions may require, they being subject to the provisions of the Indian intercourse law

and such rules and regulations as may be estab- lished by the secretary of the interior: And provided also, That the stock thus subscribed by either of said nations shall have the force and effect of a first-mortgage bond on all that part of said road, appurtenances and equipments sit- uated and used within said nations, respectively, and shall be a perpetual lien on the same, and the said nations shall have the right, from year to year, to elect to receive their equitable pro- portion of declared dividends of profits on their said stock, or interest on the par value at the rate of six per cent per annum.

"And it is further declared, in this connection. that as fast as sections of twenty miles in length are completed, with the rails laid ready for use, with all water and other stations necessary to the use thereof, as a first-class road, the said com- pany or companies shall become entitled to pat- ents for the alternate sections aforesaid, and may proceed to dispose thereof in the manner herein provided for, subject to the approval of the sec- retary of the interior."

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souri, Kansas, and Texas) Railway Com- pany, in the fervency of their desire to reach the line first, omitted the construction of a portion of their route, and began op- erations within the limits of the Cherokee country without having received the previ- ous permission of either the United States or the Cherokee authorities so to do. To this conduct the Cherokees made vigorous objection, and appealed to the secretary of the interior. That officer notified (May 13, 1870), the railroad officials that the Cherokees did not recognize their right to so intrude upon the Territory, and that no work of the kind referred to could be permitted therein until the executive should be satisfied, by evidence submitted in proper manner, that such entry and occupation were in accordance with law. Thereupon the officers and attorneys of the several companies interested appealed and sub- mitted arguments before the secretary of the interior on behalf of their respective interests. The point submitted for the con- sideration of the secretary and for the de- termination of the president was, what rights had been given to railroad companies to construct railroads through the Indian Territory and what railroads, if any, were entitled to such privileges and right of way.

On the part of the Indians it was claimed that the whole scheme of treaties and of legislation looked to the construction of but a single trunk road through the Territory from north to south, and, as far as the Cherokee Nation was concerned, for the like construction of but a single road through its territory from east to west. This interpretation of the treaties and the laws was admitted to be the correct one by all the companies but the Missouri, Kansas and Texas. This company insisted that the meaning of the legislation and of the treat- ies was to give the right of way to as many

roads as might in any manner be author- ized by Congress to enter the Territory.

The secretary of the interior in his opin- ion (May 21, 1870) expressed an emphatic concurrence in the interpretation insisted upon by the Cherokee delegation. He was further of the opinion that neither of the roads had so far earned a right to enter the Indian country by the construction of a con- tinuous line of road to the legal point of entrance, but that as it might soon be nec- essary to decide which company should first completely fulfill the conditions of the law, an executive order ought to be issued de- claring that no railroad company should be permitted to enter the Territory for the pur- pose of grading or constructing a railroad until a report should be received from a commission composed of superintendents of Indian affairs for the central and south- ern superintendencies designating which company had first reached the line. These views and findings of the secretary of the interior were approved by the president and directed to be carried into effect (May 23, 1870).

This commission reported (June 13, 1870) that the Union Pacific Railway, southern branch-otherwise the Missouri, Kansas and Texas Railway-reached the northern boundary of the Indian Territory, in the valley of the Neosho River on the west side, and about one mile therefrom, at noon on the 6th day of June, 1870, and that at that time there was no other railroad nearer than 16 miles of that point.

Predicated upon this report, supplement- ed by the certificate of the governor of Kan- sas that it was a first-class completed rail- way up to that point, permission was given the Missouri, Kansas and Texas Railroad Company by the president, under certain stipulations and restrictions as to the meth- ods and character of construction, to pro-

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ceed with the work of building a trunk dian title. The Indian title, however, (so road through the Indian Territory to a point at or near Preston, in the state of Texas, and the road was rapidly constructed under this authority.2

The Atlantic and Pacific road (the Frisco), having no competitor, experienced no difficulty in securing the right of con- struction of its east and west line through the Cherokee country, and was constructed, originally as far as Vinita.

The effect of the original railroad grants through Indian Territory in operating to extinguish the Indian title and in menacing the integrity of the Indian country was de- clared to have proved "well springs of woe to the Indian nations." In the objections filed by representatives of four of the civil- ized tribes to the bill pending in the house of representatives in 1885-86 for the or- ganization of Indian Territory, it was as- serted that the hope of obtaining a valida- tion of the two railway land grants condi- tionally bestowed by Congress in the acts of July 25 and 26, 1866, was one of the "malign" influences supporting the bill. The effect of the acts granting lands to the "Kansas and Neosho Valley railroad," and to the "Southern Branch" of the Union Pa- cific from Fort Riley, Kansas, to Fort Smith, Arkansas, under which original charter the M., K. & T. railroad was con- structed through Indian Territory, was to confer upon the first named company a grant of more than 2,880,000 acres of In- dian land, and upon the second more than 1,824,000 acres, each grant being condi- tioned upon the extinguishment of the In-

? The M., K. & T. Railroad was regarded with much prejudice by many of the Indians. On open- ing the road in 1872 attempts were made to in- duce a Choctaw delegation to join the excursion to Denison. The chiefs refused, alleging that the white man had some horrible designs, like boiling the Indians in kettles. Within the next six years,

the objectors asserted) was absolute, sol- emnly guaranteed by the United States gov- ernment. Then the question is asked, in the resolutions above mentioned-What right, under the treaties, or under any known code of public morals, however lax, had the United States to make a land grant, wheth- er absolute or conditional, through a coun- try held by such broad, deep and exhaustive titles as those of the Chickasaws, Creeks, Seminoles, Cherokees and Choctaws? "The ninth sections of these land grant acts were declarations of war against the titles of the Indians. The United States, in effect, ad- vised the railway companies that the Indian titles, which the Indians believed to have been settled by the treaties, were not in reality settled by the treaties; that the sol- emn guarantees of the treaties were hollow phrases used as temporizing shifts to put off the Indians. The United States, in ef- fect, notified these railway companies that if, by an industrious, insidious and cunning use of the measureless facilities which the operation of long lines of railroads and the employment of large numbers of sharp and unscrupulous men would be certain to af- ford them, they could undermine these titles and accomplish their extinguishment, by treaties or otherwise, the reward for their intrigue and fraud should be the acquisition of millions of acres of the best lands on the western continent. The consequences of this deplorable legislation have been for twenty years most annoying to the Indian nations. These nations have found them- selves confronted, everywhere, by the agents

says a writer in 1879, the Indian's sentiments rad- ically changed. "He now hauls to the stations on the line his pecans, pork, corn and cotton and his surplus game, receives a liberal sum of money in exchange, and goes home satisfied that the railroad is a friendly institution."

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of the railroad companies, struggling in every possible mode of activity by direct and indirect means, to weaken the hold of the Indians upon their lands. And now the representatives of these companies assert

. . that this Indian title, this owner-

ship in common, will be extinguished by the allotment of the lands in severalty to individuals, and that the land grants con- ditionally conferred by the acts of 1866 will, thereupon, take effect. The undersigned are not only convinced that this scheme of validating the land grants, through the Indian Territory, has had a large influence in bringing forward this measure [for the organization of Oklahoma] (of course without the knowledge of its friends in Congress), but are also filled with the grav- est apprehensions as to its results."

The protest of the Indians attracted con- siderable attention, and the government was placed on the defensive in explaining its position in the matter. Secretary of In- terior Lamar after admitting that "rail- roads introduce into the Indian country an element not easily controlled by this depart- ment under existing laws," excused the granting of rights of way in the face of treaty obligations by suggesting that rail- roads "enhance the value of the Indian lands" and "aid in breaking down the nat- ural aversion of the Indians to the division of their lands for individual holdings."

The suspicion felt by the Indians that the railroad would prove an effective in- strument in breaking up their country was well founded in fact. From the very day that trains began running through Indian Territory, the seclusion so much cherished by the Indians became impossible. More- over, there is reason to believe that the per- sonal factors engaged in promoting railroad building through the Territory were also supporting the movement to organize a ter-

ritorial government, as was charged in the memorial above quoted. It is an interest- ing, if not significant fact, that the same congressman who introduced (in March, 1866) a bill "to aid in the construction of the Kansas and Neosho Valley Railroad," soon afterward became author of a bill to give a territorial government to Indian Ter- ritory.

The original rights of way through In- dian Territory were, as we have seen, granted by the treaties of 1866. If the In- dians were opposed to railroads at the date of these treaties, their opposition was not manifested, or at least their greater interests then at stake caused them to grant this priv- ilege without considering its future conse- quences. One railroad was built through the Territory and another partially con- structed. But later, with these as prece- dents, other corporations sought similar privileges, so that during the first session of the Forty-ninth Congress (1885-86) ten special bills for right of way across Indian Territory had been presented. It was this great activity in railroad building, coupled with encroachment of white settlements, that roused the Indians to hostility against both the railroads and all movements that seemed to threaten the integrity of their country.

The authority of the government in rela- tion to railroads across Indian country, and the necessity of these avenues of commerce through Indian Territory, were stated by the commissioner of Indian affairs in 1886. He said :

"The question of the right of way across this Territory has, by the decisions of the Supreme Court and by legislation previ- ously had by Congress, been deemed to ex- ist with the United States, and the vast growth in the development of the section of country immediately surrounding this Terri-

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tory has been so remarkable during the last ten years as to make the need of additional means of communication and transportation apparent to all. The vast regions of the southwest and the large area of the middle states are now separated from each other, in a commercial sense, by the large country known as the Indian Territory, and the needs of commerce and the development of civilization are looking to the same direct- ness and facility for transportation between themselves as exist in other more favored sections of the country." ª

From what precedes, it is clear that the

' House report No. 1356, 49th Cong., 1st Sess. The report went on to say that ten special bills for right of way across Indian Territory had been presented at that session, that it was likely the next five years would witness great activity in railroad building between the west and southwest,

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railroad, as an institution, and especially the first railroads, were among the impor- tant forces of disintegration. From the point of view of modern civilization, the railroad has done more to develop and build up Oklahoma than any other material fac- tor, but in considering this country with ref- erence to its origin and the purposes for which it was founded, it is evident that the existence of rail thoroughfares through In- dian Territory was an inconsistency, unless accompanied by a productive and superior civilization.

and that in view of the danger and inequity at- taching to the granting of special acts to railroad companies a general railroad act should be passed, allowing all responsible incorporated companies, seeking in good faith to cross the Indian Terri- tory, to secure that right, if entitled to it, under general terms instead of by special act.

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CHAPTER XVI

THE ACT OF 1871 AND CHANGE OF INDIAN POLICY

Forty years after John Marshall had de- livered his famous opinion regarding the status of the Indian tribes as sovereign nations, Congress by act approved, March 3, 1871, declared "No Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty; but no obligation of any treaty made and ratified with any such nation or tribe prior to March 3, 1871, shall be hereby invalidated or impaired."

When it 'is recalled that in their earlier relations with the Indians, the colonies were perforce compelled to recognize their hos- tile neighbors with the dignity due a dan- gerous foe, and to placate them by peace offerings and solemn promises consistent with relations between equal nations, the language of this statute indicates a com- plete reversal of the attitude shown by the American people to the Indians since the days of King Philip and Chief Powhatan. In early American history fear induced re- spect, and even after the aboriginal pos- sessors of the soil had been driven into the western wilderness, the formality of treaty and solemn convention characterized the dealings of the government with the tribes. The hollowness of these treaty forms had been apparent for years, the Indians them- selves had learned from experience that treaty guarantees were subject to reversal and invalidation by the superior power of the government, and hence the enactment

of this legislation merely gave the sanction of law to a policy that in practice had been more or less effectively applied for years. At the same time, this law was a powerful instrument in the hands of those who sought to modify the possession by the Indians of their vast estates, and for this reason the abrogation of the treaty system by the act of 1871 may be justly regarded as one of the forces of disintegration now being con- sidered.1

About the time this law was given effect, the Indian problem had reached a stage where its solution was imperative. The plan for an inter-tribal federation, as pro- posed in the Okmulgee constitution, had failed as a practical measure. The pressure of population from without, the white in- trusion, the cattle industry and railway con- struction within the Territory, made it nec- essary that some comprehensive and effi- cient measures should be adopted to co- ordinate the Indian country with the rest of the Union. The time was approaching when the government must either protect the Indians under the system devised by Jefferson and Jackson, or bring them into more intimate relations with their white neighbors.

At the time of the passage of the act of 1871, the late Francis A. Walker, eminent also for his services as a soldier and as a political economist, was commissioner of In-

1 For the manner in which this law was passed, see the following chapter, Mr. Sidney Clarke's nar- rative.

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dian affairs. His views, published at that time and later, form the most valuable com- mentary obtainable upon the status of the Indians at this critical time. Referring to the future of the Indians, he declared : "Whenever Congress shall take up in earn- est this question of the disposition to be made of the Indian tribes; its choice will clearly be between two antagonistic schemes -seclusion and citizenship."

Thus the issues were presented, and it will help to a proper understanding of suc- ceeding events to state the arguments for the side of seclusion as stated by General Walker, who also describes the general ad- vancement of the Indians in civilization and material improvement at this time.

About 1872, the year in which the first railroad was built through the Territory, while the policy of the government was still directed toward a concentration of In- dian tribes in this country, notwithstanding that the pressure of white population with- out and the interference of the cattle in- terests and the "intruder class" within con- stituted a serious problem and a menace to the integrity of the Indian nations, an outline of the plans for maintaining an ideal reservation system was drawn by General Walker, who had recently resigned the post of Indian commissioner.2 His recommen- dations are the more valuable because they afford a view of conditions at the time, and from that viewpoint we may look forward through succeeding years to the changes made by a different destiny for this coun- try.

The reservation system, in the opinion of the ex-commissioner, should be made the general and permanent policy of the gov- ernment. "The proposition is that the United States . . . should formally es-

tablish the principle of separation and se- clusion, without reference to the wishes either of the Indians or of encroaching whites; should designate by law an ample and suitable reservation for each tribe and band not entitled by treaty ; and should, in any reductions thereafter requiring to be made, provide that such reductions shall be by cutting off distinct portions from the outside, and not in such a way as to allow veins of white settlement to be injected, no matter whether along a stream or along a railway."

Now read what General Walker says concerning the isolation of the Indians, in recommendation of an ideal plan which the developments of the next few years ren- dered impossible of realization in Indian Territory. "The principle of secluding In- dians from whites for the good of both races is established by an overwhelming pre- ponderance of authority. There are no mys- terious reasons why this policy should be adopted: the considerations which favor it are plain and incontestable. The first is the familiar one, that the Indian is unfor- tunately disposed to submit himself to the lower and baser elements of civilized so- ciety, and to acquire the vices and not the virtues of the whites. . There is

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A history of the state of Oklahoma, Volume I, Part 24

Author: Hill, L. B. (Luther B.) Publication date: 1908 Publisher: Chicago : Lewis Pubishing Company Number of Pages: 645

Author: Hill, L. B. (Luther B.)
Publication date: 1908
Publisher: Chicago : Lewis Pubishing Company
Number of Pages: 645