USA > Oklahoma > A history of the state of Oklahoma, Volume I > Part 30
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This report is also accompanied by a detailed report from Lieutenant Day, Ninth Cavalry, show- ing his attempts to induce a peaceable surrender of the intruders located at Stillwater, Ind. T.
January 19, General Augur reports by telegraph the whereabouts of Colonel Hatch and the troops in the Indian Territory; that the number of boom- ers has increased to 375 and is constantly increas- ing, and that there is no doubt they will fight. Should this be. the case and they fire upon the
six, and July nineteenth, eighteen hundred and sixty-six; and for that purpose the sum of five thousand dollars, or so much thereof as may be necessary, be, and the same is hereby, appropriated out of any
troops, desires to know whether they are to be treated as public enemies and to be captured or killed, so that there can be no chance of a mis- understanding as to the orders on this point.
January 20, the lieutenant-general, in accordance with instructions of the secretary of war, informed General Augur, by telegraph, that the president's orders for the removal from the Indian Territory of the intruders therein were to be enforced. That it was hoped that this might be done without an armed conflict, but that the responsibility for any bloodshed must rest upon those who do not accept the warning of the proclamation of the president of July 1, 1884, and attempt with arms to resist the troops ordered to compel their re- moval. Also, that the military force should be increased, so that all intruders might see the hope- lessness of resistance. Following the communica- tion of these instructions, the lieutenant-general directed General Augur to immediately reinforce Colonel Hatch by the remaining companies of the Ninth Cavalry, and also to send him reinforce- ments from the Tenth, Twentieth, and Twenty- second Regiments, of Infantry until the force he has now in hand shall be increased by 300 addi- tional men.
January 21, General Augur acknowledges receipt of above instructions (of which he has furnished Colonel Hatch a copy), and reports that the addi- tional troops will be sent to Caldwell as soon as transportation and supplies are ready for them, but that on account of the severe weather and snow it will be difficult to get troops from Elliott, and supplies. Desires to know if he can send troops from Fort Leavenworth providing it will not interfere with the school.
By telegram of January 21 from this office, General Augur was authorized to send troops from Fort Leavenworth, providing it did not interfere with the school.
July 23, the commanding general, Division of the Missouri, repeats dispatch for the command- ing general, Department of the Missouri, com- municating information received from Colonel Hatch that Couch, the leader of the boomers, has notified him that they will fight; that their strength is 400, and that the United States troops are moving into position to cut off supplies and stop new arrivals.
(Sen. Exec. Doc. No. 50, 48th Cong., 2d Sess.)
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money in the treasury not otherwise ap- propriated; his action hereunder to be reported to Congress."
Notwithstanding this legislation the colonists still maintained a defiant attitude in camp at Arkansas City, and threatened to re-enter the Territory in largely increased numbers at an early date. An impression seemed to prevail amongst them that the proclamation issued by President Arthur, July 1, 1884, and his subsequent order of July 31, 1884, directing the employment of the military in enforcing the same, had become inoperative with the close of his administration. To counteract this idea, President Cleveland, on the 13th of March, 1885, issued a proclamation substantially to the same effect as those of his prede- cessors, declaring the determination of the government to maintain the integrity of the treaties entered into with the Indian tribes, and to enforce obedience to the laws of the United States.
The immediate effect of this proclama- tion, as reported by the commanding gen- eral, was to reduce the numbers of the Couch colony, many of whom quietly dis- persed and returned to their homes. A large number, however, estimated at from six to eight hundred men, all well armed, still remained in camp, who openly avowed their intention to disregard the proclama- tion and force their way into the Terri- tory. Meetings of the colonists were held, and resolutions passed expressive of their surprise and dissatisfaction at the course taken by the government, and demanding of the president an explanation of the laws and treaties governing the Oklahoma lands . under which it was claimed they were still Indian lands. A delegation in behalf of the colonists waited on the president and secretary of the interior, with a view to se- curing some modification of the proclama-
tion whereby they might be permitted tem- porarily to enter the Territory pending the negotiations authorized by Congress, but they were informed that under no circum- stances would any settlements be permitted in the Indian Territory until the negoti- ations with the Indian tribes had been had and authority from Congress obtained.
Upon the return of the delegation to Arkansas City the colonists (April 23) passed resolutions agreeing to await the result of negotiations, and adjourned to meet at the call of their leader. Those having homes returned to them, about two hundred and fifty remaining in camp, near Caldwell, on the Kansas border. The re- port of the Indian commissioner for 1885 with reference to the colonists concluded : "Recent advices received in this depart- ment indicating an intention on the part of the colonists to disband and peacefully await further official action in. reference to the lands in question, the United States district attorney has been instructed by the Department of Justice to dismiss the suits before referred to if he is satisfied they have broken camp and retired from the border and relinquished their project of invasion."
In the latter part of October and be- ginning of November, 1885 (Report of commissioner of Indian affairs, 1886, p. XLV) a large body of intruders, under the leadership of Couch, again entered the Territory, with the avowed object of set- tlement on the coveted lands, camping on the banks of the Canadian, near Council Grove, whence they were again removed across the line by the military, under the president's proclamation of March 13, 1885.
The president having on July 23, 1885, issued a proclamation declaring the leases made by the Cheyenne and Arapahoe In-
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dians void, and directing the removal of the alleged lessees, their cattle, and their employes from the reservation within a specified time, thousands of cattle were driven to graze on the Oklahoma lands. Upon the recommendation of the interior department (December 3, 1885) measures were at once taken by the war department which resulted in the supposed clearance of all cattle and intruders from Oklahoma. (See Sidney Clarke's statements in pre- vious chapter.) Subsequently, however, in the early spring of the present year, it was ascertained that there were still large numbers of cattle on the Oklahoma lands, and these also were removed by the military.
In the summer of 1885 Attorney General Garland, at the request of President Cleve- land, delivered an opinion affecting the cattle leases in Indian Territory. This opinion had an important bearing on the settlement of the immediate issues between the various interests in contention over the land of Oklahoma. The following ex- tracts from the opinion will indicate its scope.
"Our government has ever claimed the right and . . . its settled policy has been to regulate and control the alienation or other disposition by the Indian nations or tribes of their lands." An act of the confederation congress in 1783 forbade all persons "from making settlements on lands inhabited by the Indians without the limits or jurisdiction of any particular state." By act of Congress July 22, 1790, no lands could be sold by Indians within the United States except under "some public treaty held under the authority of the United States." These restrictions were reinforced by subsequent acts dated March 1, 1793; May 19, 1796; March 3, 1799, and March 30, 1802.
The above provisions applied to indi-
vidual Indians as well as to tribes or na- tions, but by act of June 30, 1834, it was limited to the tribe or nation. Section 2116 of the revised statutes in force at the time of Attorney-General Garland's ruling read: "No purchase, grant, lease or other con- veyance of lands or any title or claim thereto from an Indian nation or tribe of Indians shall be of any validity in law or equity unless the same be made by treaty or the constitution."
The attorney general held that this law was comprehensive, that whether the In- dian title was in fee simple or right of oc- cupation merely, was immaterial. There- fore a lease of land for grazing purposes was subject to the statute and "one who enters with cattle or other livestock upon an Indian reservation under a lease of that description made in violation of the stat- utes is an intruder and may be removed." Mr. Garland then cites the act of Congress, February 19, 1875, authorizing the Seneca nation to lease certain lands in New York state, as proof that some such legislative action is necessary to confirm all leases, and, without it, the leases are not valid.
This opinion was at once interpreted by the Oklahoma boomers as favorable to their cause, in that it denied the validity of the cattlemen's leases, although it is difficult to conceive how they could infer that, for this reason, the right of the intending settlers was in any way strengthened, since the at- torney general declared explicitly that all intruders within the meaning of existing statutes could claim no protection nor per- manence of occupation unless a specific law authorized such intrusion of an Indian reservation.
When the act of March 3, 1885, was passed by Congress authorizing the presi- dent to open negotiations with the Creeks, Seminoles and Cherokees for the purpose
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of opening to settlement, under the home- stead laws, the unassigned portions of Okla- homa and the Cherokee Strip, an Indian international convention was called by Hon. D. W. Bushyhead. It met June 15, 1885, at Eufaula, with the following delegates present :
Choctaws .- Delegates: Ed. McCurtain, chief of Choctaws; A. Carney, Julius Fol- som, Wesley Anderson, Meah-hut-tubbee, J. S. Standley.
Chickasaws-Delegates: Geo. W. Har- kins, B. W. Carter.
Cherokees .- Delegates: R. Bunch, W. P. Ross, L. B. Bell, Frog Sixkiller, S. H. Benge, Daniel Redbird, Adam Feelin, John Sevier.
Creeks .- Delegates: Ward Coachman, G. W. Grayson, Jno. R. Moore, Wm. McCombs, Coweta Micco, Efa Emarthlar.
Seminoles .- Delegates : John Jumper, James Factor, Thos. McGeisey.
The object of the convention, after or- ganization, was shown by Mr. Bushyhead's letter, to wit:
Tahlequah, June 12, 1885. To Messrs. R. Bunch, Wm. P. Ross, L. B. Bell, Frog Sixkiller, S. H. Benge, D. Redbird, Adam Feelin, and John Sevier.
Gentlemen :- As already advised, you have been appointed to represent the Cherokee Nation at a conference to be held at Eufaula, Muscogee Na- tion, I. T., on the 15th instant, between the repre- sentatives of the Muscogee, Seminole, Choctaw, Chickasaw and Cherokee nations concerning mat- ters of importance pertaining to their general in- terests.
By the act of Congress approved March 3, 1885, commonly known as the "Indian appropriation bill," it was provided "that the president is hereby authorized to open negotiations with the Creeks, Seminoles, and Cherokees for the purpose of opening to settlement under the homestead laws the unassigned lands in said Indian Terri- tory ceded by them respectively to the United States by the several treaties of August 11, 1866, March 21, 1866, and July 19, 1866." In view of this legislation the chief of the Seminoles in- vited a meeting of the parties in interest for the purpose of an interchange of views on the ques-
tion thus presented, and as the result the con- ference to which you have been appointed has been called at Eufaula.
You will readily perceive that the proposal to open to settlement, under the homestead laws of the United States, the lands set apart by the Creeks and Cherokees for the settlement of friendly Indians presents questions of. the gravest import, not only to the Seminoles, Creeks and Cherokees, but to all Indians now settled within the limits of the Indian Territory, and which calls for their most serious consideration and har- monious action. They involve not only a cession of large tracts of valuable lands, to which, in the case of the Cherokee Nation, the title remains unimpaired, but a thorough, sweeping, and radical change in the political relations between the In- dians and the government of the United States.
To the consideration of this subject, and of all points of interest springing therefrom, you are expected to give your serious and mature con- sideration, and endeavor to agree upon some com- mon ground of action upon which the members of the conference can stand united in sentiment and effort to meet the issues to be presented tu them. What that ground shall be is left to your wisdom to determine; but I am convinced that the sentiment and conviction of the people will regard any movement looking to a cession of our lands for the purpose authorized by Congress, or the disturbance of the integrity of the Indian Territory, or the surrender of any rights of soil or self-government now enjoyed under the guar- antees of their treaties with the United States, with disapproval and opposition.
I suggest, therefore, that your efforts in this conference be addressed directly to obtaining such action as may seem best calculated to preserve our rights of soil and self-government under our treaties, to strengthen the guarantees of our In- dian brothers, to perpetuate the existence of the Indian Territory unimpaired under the laws and treaties of the United States, and to unite more intimately the relations now existing between the Indian people, so as to secure more united and harmonious councils in the advancement of their common interests and the more efficient enforce- ment of law.
I need hardly add that any measure adopted or policy agreed upon by the conference will require to be reported in full to this department for its approval and reference to the national council for final action. Very respectfully,
D. W. Bushyhead, Principal Chief.
The next day, after consultation, the fol- lowing resolutions, with one dissenting voice, were adopted, to wit :
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Whereas, The opening of said lands to homestead settlement would be in conflict with the uniform policy of the government in reference to the Indians of this Territory, and its solemn pledges that the lands of the Indian Territory shall not, in all time to come, be included within the limits of any state or territory without their consent; and
Whereas, The opening of said lands would neces- sarily involve the establishment of a Territory of the United States within the limits of the In- dian Territory in violation of said treaties; there- fore, be it
Resolved, By the representatives of the Creeks, Seminoles, Cherokees, Choctaws and Chickasaws in convention assembled, That in their opinion the negotiations authorized by the act of Congress of March 3, 1885, are incompatible with the rights, interests, and future security of the people of the Indian Territory, and should not be entered into; and to secute the integrity of the Territory as Indian country, and the interest of the several tribes therein, we hereby pledge ourselves and our respective governments.
The sentiment of the Cherokee Nation respecting the establishment of a territorial government over the outlet or the inclu- sion of that portion of their country in the proposed Oklahoma was expressed in the instruction to the Cherokee delegation sent to Washington in 1872. By act of the na- tional council this delegation was instructed "to protest against and oppose by all proper means the passage through Congress of any bill for the establishment of a terri- torial government of the United States over the Cherokee country and people, or the adoption of any measure that will in- terfere in any manner with the right of soil and self-government guaranteed to the Cherokee Nation and people by the pro- visions of treaties now existing between the United States and the Cherokee Nation."
Year after year the annual delegation to Washington received as part of its instruc- tions this protest, with enly an occasional variation in the wording. As the pressure for the opening of the Indian country be- came stronger, the instructions became more
specific, indicating the course of events that were tending to break down the barriers around the Indian country.' Thus, in 1882, besides the above paragraph, the delegates were to "oppose any measure or act that would throw the Cherokee Nation open or expose it to white settlement; and they are further instructed to resist all attempts by bill in Congress to allot lands in sev- eralty . . and they are further in- structed to aid the other nations and smaller tribes in resisting encroachments among them, and in thus introducing disturbing elements among them, thus destroying the security and hindering the progress of the nations and tribes of the Indian Territory."
In 1888, the Oklahoma question having become acute, the following paragraph was added to the general instructions that had continued for the preceding years: "Whereas the preceding delegation and the published proceedings of Congress have in- formed the people of the Cherokee Nation and their representatives in national coun- cil now convened that a certain 'bill' is now pending in the house of representatives en- titled 'An act to provide for the organiza- tion of the Territory of Oklahoma, and for other purposes,' by which bill it is pro- posed to create a United States territory so entitled and to include more than one- half of the Cherokee domain within the de- scribed limits thereof, and to sell the lands contained in said tract in a manner and at a price and at times fixed in said 'bill': pro- vided, that the Cherokee Nation shall, after the passage by said bill by Congress, sig- nify their assent to the organization of said territory upon the terms set forth. The delegation are authorized and required to convey to Congress and to the president of the United States the unanimous dissent of the national council and the people of the Cherokee Nation to the organization of
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said territory so far as the organization thereof proposes to affect any part of the domain embraced and described in treaty and patent as conveyed to this nation and which yet belongs to said nation; and fur- ther, that they, the Cherokee people, are unanimously opposed to any extinguish- ment of their rights, jurisdiction, posses- sion and ownership over any portion of their remaining country by the United States government without their consent having first been obtained in accordance with law and treaty."
During the Oklahoma agitation a plan was proposed to remove the Indians from the reservations created by executive order into the Oklahoma country, thus allowing such reservations to be thrown open to set- tlement. This was the subject of an ex- tended trip of investigation by Prof. C. C. Painter, representing the Indian Rights As- sociation, and also, unofficially, the presi- dent and secretary of interior. The theory that no treaty stood in the way of opening the executive order reservations, while the Creeks and Seminoles still had treaty rights in Oklahoma, had no valid reasons to sup- port it, reported Prof. Painter. As an in- stance, the Wichitas lived on a reservation by unratified treaty, and since the treaty had never been ratified by the senate there could be no legal obstacle to their removal. "The fact is," asserts Prof. Painter, "these Indians claim always to have been the own- ers of this land, not only what they occupy,
but a large body occupied in part by the Kiowas and Comanches, etc. Their title to it has never been extinguished. So there are virtual legal and treaty obli- gations in the way of this removal fully as sacred as those which prevent us from open- ing Oklahoma, and certainly the moral obli- gations are even greater. These people, especially the Wichitas, have taken deep root in these lands, have built their homes, and opened up farms. This is being done with most encouraging rapidity by the Cheyennes, Arapahoes and Comanches. It would be a cruel outrage to force them to remove; it would be a disastrous step back- ward to induce them to go. The lands to which they would remove are not so good as those now occupied; they are bitterly opposed to the plan, and it ought not to be attempted." And then the report continues with a definite recommendation that "Okla- homa ought to be opened up; it is not needed by the Indians; it cannot be kept empty and ought not to be so kept; but if treaty obligations and moral obligations must be violated, it is better to do so with reference to vacant lands than with refer- ence to established homes. Steps ought to be taken at once to gain the consent of the Creeks and Seminoles to throw this land open to settlement, and it could doubtless be done if a fair price above thirty cents per acre which we have paid for it for the settlement of Indians upon it was offered for it."
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CHAPTER XIX
NO MAN'S LAND AND "CIMARRON TERRITORY"
As an episode in the general agitation for the opening of Oklahoma, the settle- ment of "No Man's Land" and the attempt to organize a territorial government for that country form an interesting phase of Oklahoma's history. In Chapter III the origin of the anomalous pieces of territory known as "No Man's Land" was described, and it was stated that the contention of the Cherokees that this land was a part of the Outlet was denied by the United States courts. This left it open to settlement as a part of the public domain, and it happened that in the general movement of population into the southwest during the eighties these vacant lands were occupied, and their for- tunes thus involved in the Oklahoma question.
The story is best told in the following account published in the Daily Oklahoman (May 7, 1905) :
In 1880, settlers from Kansas and other states looking for new homes, went to "No Man's Land" and the first settlement was established at Beaver City, now the seat of Beaver county. The population increased rapidly, farms were cultivated and towns established. In the absence of law, even by the federal government, the people by common consent made certain agreements for the protection of property, which, to their credit, were observed almost as faith- fully as if enforced by regular courts. By the spring of 1886 the population had reached 3,000. The people determined to
organize a government of their own, and the Respective Claim board, an organiza- tion of citizens to protect landlords, divided "No Man's Land" into three council and six representative districts. An election was held and the legislature met at Beaver City, March 4, 1887. Dr. O. G. Chase was president of the council. and Merritt Magan secretary. A bill was passed cre- ating the provisional government of Ci- marron Territory, and the legislature or- dered an election to be held the first Mon- day in November, 1887, to elect a delegate to Congress, a governor, a secretary, nine councilmen and fourteen representatives. Dr. Chase was elected delegate, J. R. Lin- ley governor, and Thomas P. Braidwood secretary. John Dale, a rival candidate for delegate, contested Chase's election, but Chase got the certificate and went to Wash- ington in December, 1887. He was intro- duced on the floor of the house by William M. Springer, of Illinois. Chase was not recognized, nor was Dale's contest. On March 3, 1887, a bill attaching "No Man's Land" to Kansas, for judicial purposes, passed both houses of Congress, but Presi- dent Cleveland was induced by Sidney Clarke, then living in Kansas, not to sign it, as the change might be detrimental to the opening of Oklahoma.
The commissioner of the land office, in a letter January 29, 1886, had recommended the abolition of the anomalous condition of the strip by the passage of the house bill
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then in committee "to extend the laws of the United States over certain unorganized territory south of Kansas."
In February, 1888, when the senate com- mittee (Sen. Doc. No. 353, Ist Sess., 50th Cong.) recommended the passage of a bill "to extend the southern and western boun- daries of the state of Kansas and for other purposes," it supported its recommendation by the following report of the conditions in the affected territory : "Within the past few years there has been a large immigra- tion to this section, and its lands, which are fertile, have been largely occupied. Flourishing towns have also grown up. This portion of the public domain is with- out laws, except such as have been enacted by the settlers; and while the great ma- jority of the settlers are industrious, thrifty and moral, many criminals and outlaws have taken up their abode there, and made frequent predatory excursions into the states of Kansas and Texas." Concluding with the recommendation that, of all the plans proposed for the organization of the country, the most meritorious to be that of attaching this unorganized part of the pub- lic domain of Kansas. The meridian and township lines of the strip were surveyed previous to 1886, pursuant to an act of Congress March 3, 1881. In his report for 1884 the commissioner of the land office says: "Exterior surveys of the public land strip west of the Indian Territory have been made, and the district is rapidly filling up with settlers and stockmen, between whom conflicts have occurred for the possession of the country. A considerable portion of the land is reported illegally fenced. I have recommended the attachment of this strip to the adjoining district of Kansas, and it is desirable that early action be taken in order that the lands may be opened to legal entry."
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