A history of the state of Oklahoma, Volume I, Part 40

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

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The application for the townsite, filed by Louis O. Dick as trustee, on the opening day, named the south half of the northeast quarter and south- cast quarter of section 33, and the north half of the northeast quarter of section 4.

At the time this case was tried in the land office, in the latter half of 1890, the population located on the east half of section 33 numbered about 2,378 persons; most of the business dis- trict and the greater part of the population in the southeast quarter.

The contest which originated this suit in the land office was over the northeast quarter of sec- tion 33, which was included in the original town- site and was also sought as a homestead. The following description found in the findings is a part of history.

Samuel Crocker, as a member of the Payne colony, was in Oklahoma in the year 1885, and at several times subsequent to that date, during which time he resided in Kansas. He came to Oklahoma station March 2, 1889, and established a residence at that place. Immediately after 12 o'clock noon, April 22, he settled upon the north half of the northeast quarter of section 33 and established a residence where he lived up to the date of this suit. Soon after he went upon the land, he dug a hole in the ground, had some plow- ing done, and erected a tent in which to live. By the 26th of April he had three or four acres broken, and subsequently had thirty-three acres broken. He erected a frame house 12 by 16 feet

in size, with one addition 16 by 24 feet in size, and another 8 by 16 feet. He erected a stable and dug a cistern and well and built a chicken house. He fenced six or seven acres near the house and put up 350 rods of wire fence. He set out an orchard of two acres, 75 shade trees, planted two acres of watermelons and cantaloupes, one acre of buckwheat and two acres of turnips. On the 24th of April he made homestead entry No. 33 of the north half of the northeast quarter.

All this happened, according to the findings of the land office, on land now covered by business and residence houses near the heart of Oklahoma City.

But at noon on April 22, Frank M. Gault, who had lived twelve miles east of the east line of Oklahoma Territory, started from that line and arrived at and settled upon the northeast quar- ter of section 33 at one o'clock and ten minutes past noon. On the following day he had the land surveyed, and put up a tent, and later did some plowing and made improvements of various kinds. When, on May 17, he made application to enter the tract for a homestead his application was re- jected as being in conflict with the entry of Crocker on the north half of the quarter and with the townsite application of Dick.

Three men named Fuller bad each made appli- cation for entry of this quarter for homestead purposes. Besides the claimants who contested for this particular quarter section as a homestead, a man named George E. Thornton, who had been a government freighter previous to the opening and resided in a house on the northeast quarter of section 4, laid claim to this quarter section for homestead purposes. In the findings is other evi- dence regarding the settlement of Edward DeTar, Meshack Couch and Thomas Wright, who had been in government service in the country prior to the opening and had located on lands imme- diately after noon of the opening day.

Besides the matters of history involved in these findings, the register and receiver of the land office, in summing up the evidence, gave their de- cision on the rights of the homesteader as against the townsite claimant, and that decision is an important review of this subject.

"At one o'clock and ten minutes p. m. of day Frank M. Gault, a qualified homesteader, settled upon the northeast quarter of said section as a homestead, and has since resided thereon and maintained his settlement rights, and that at the time of his said settlement no settlement had been made thereon for the purpose of trade and business.

"It is insisted by the townsite claimants that Oklahoma station was a prospective townsite; that persons at Purcell and elsewhere had decided

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to locate a town on the said half section as soon after noon of said day as it could be reached; that persons settled upon the southeast quarter at once after said hour; that the survey of the town was begun at that time; that by law such townsite settlers were entitled to enter three hun- dred and twenty acres of land; that a settlement upon any portion of it segregated the whole three hundred and twenty acres; that the settlement upon the southeast quarter segregated the north- east quarter also, and that homestead claimants were bound to take notice of these facts.

"It is settled by an unbroken line of decisions that settlers for homestead and townsite purposes are governed by the same rules of law, acquire their rights in the same way-by actual selection and settlement-and that such rights date from the first initial act. Speaking on this subject, in the case of Kingfisher vs. Wood, et al., the hon- orable assistant commissioner says, 'A body of people coming together with a common purpose of locating a town upon public land, have no greater rights under the law than a homestead settler, they are upon the same footing, and, as in this case, their rights must be determined ac- cording to the priority of their initial acts.'

"Gault's first initial act as a homestead claim- ant was his actual settlement upon the northeast quarter at one o'clock and ten minutes p. m. of said day and the real question is: Was the land at that time subject to homestead entry! All lands in Oklahoma were subject to homestead entry unless they had been selected or settled upon and occupied for purposes of trade and business. At that time, had this quarter section been selected?

"It is true that the proposed settlers at Pur- cell had decided to locate the town on this half section, but they were not settlers nor occupants of the land or any portion of the same and were prohibited from making such settlement prior to noon. The land department has always distin- guished between a settlement and an intention to settle. The declarations of the settlers while at Purcell show an intention to settle, but such an intention did not segregate the land from home- stead entry. In Keith vs. Townsite of Grand Junction, 3 L. D., 431, Secretary Teller uses this language: 'I had no intention to, nor did I, rule that a townsite could not be selected by a few persons; but I found as a fact that the per- sons who made this selection were not settlers on the land, and that they did not go upon it for the purpose of then becoming settlers; and I ruled, as a matter of law, that such persons were not competent to make a legal selection.' In Kingfisher vs. Wood, et al., the honorable assist-

ant commissioner says: 'Undoubtedly the first act in locating a town under the public land laws, is the selection of its site, and without de- fining just what acts constitute a selection it is sufficient to say that there can be no legal selec- tion for such purpose without a personal inspec- tion and examination of the land by some of the people locating thereon or their agent. The theory that the people assembled at Buffalo Springs, I. T., April 22, 1889, legally selected the north half of the section in question as the townsite of Kingfisher, cannot for a moment be entertained. At that time, these people had never seen the land, and by the act of Congress and the president's proclamation, above referred to, they were prohibited from examining the same, either in person or through agent.'

"The evidence shows that at noon there were about one hundred and fifty persons in the vicin- ity of Oklahoma station, and that between that hour and one o'clock they settled upon said south- east quarter, but the preponderance of evidence is against such settlement having been made. The evidence does not show that any of such persons selected any particular half section for the town- site. Besides, they were in the territory at noon and made selection of lots immediately after that hour. Having at once made selections and being in the territory at a time when they could not have come from the line after noon, the fair presumption is that they were there illegally for the purpose of taking lands. It is true that Charles Chamberlain, the civil engineer, had a plat of the town which covered half of said quar- ter section, and was there for the purpose of lay- ing the same off into lots, blocks, streets and alleys, but he had done but little surveying be- fore Gault's settlement, and that which he did do was upon the southeast quarter, except the run- ning of one line of a street to the center of said northeast quarter. While we found that such line had been run at that time, the evidence is very conflicting upon that question. Such line did not of itself show for what purpose it was run or that it was the line of a street. Chamberlain him- self was non-resident, had come into the territory illegally, and could not make the selection for himself or any one else, had he attempted to do 80. It does not appear that the person who pro- cured his services was at that time or ever since has been a settler upon the land or a person com- petent to make a selection or settlement. It does not appear that Chamberlain represented or was acting for the settlers present, nor does it affirma- tively appear that there was a single settler upon said half section who had come from the line after noon of said day. The burden of proof is upon

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the townsite claimants to show a legal and valid selection and settlement of the land to segregate it from homestead entry.

"It is true that a reasonable number of per- sons may settle upon the public domain for the purpose of trade or business and that they may embrace in the townsite entry three hundred and twenty acres, even though their actual settlement is all upon one quarter, but to hold the other quar- ter section as against a homestead claimant such settlers must make a selection of such quarter before the initiation of the homestead right. 'To select is to choose, to set apart, to designate.' C. P. L. L., page 1297. No townsite settler had at the time of Gault's settlement, selected, set apart or designated the northeast quarter as a part of the townsite. It may be true that Gault was bound to know that the town was entitled to enter three hundred and twenty acres, but he was not bound to know that such settlers were going to claim this tract of land. How was he to know but that the quarter section east, west or south might be selected! He was bound only to initiate his homestead right to prevent the lands from being taken as a townsite and townsite claimants were bound to initiate their claim to segregate the lands from homestead entry. The fact that Gault settled near a proposed townsite cannot be accepted as evidence of bad faith. The following language, used by the commissioner in Plumer vs. Jackson (10 C. L. O. 71), is quoted with approval by Secretary Teller: 'The statutes cannot be con- strued to mean that persons going to the fron- tiers or along the lines of projected railways, and anticipating centers of population, shall not en- joy the benefits of their enterprise and foresight, though they believe their claims would be of great value on account of their proximity to cities or villages, or that villages or cities would even be built upon such claims, and thereby enable them ultimately to realize large prices for such land.' 3 L. D. page 434.

"The evidence shows that just after the ar- rival of the first train a large number of persons settled upon the northeast quarter of said section four for purposes of trade and business and have continuously so occupied the same until the pres- ent time, and that at this time there are twelve hundred people occupying said tract and have improvements of the value of $94,413. It also appears that George E. Thornton was a deputy United States marshal and government freighter, and had been stationed and living on said land since and prior to the passage of the act of Con- gress of March 2, 1889, had made improvements on said land and claimed the same as a homestead immediately after noon, April 22, 1889, and is now making such claim.

"Section thirteen of the act of March 2, 1889, provides: 'Until said lands are open for settle- ment, by the proclamation of the president, no person shall be permitted to enter upon and oc- cupy the same, and no person violating this provi- sion shall be permitted to enter any of said lands or acquire any right thereto.' It is insisted by counsel for Thornton that he is not disqualified from taking a homestead by said act, because he was in the territory lawfully and lived here prior to and at the time of its passage.

"In the general land office decision in the case of Blanchard vs. White and Cook the honorable assistant commissioner, in discussing this statute, says: 'The clause of the statute under considera- tion has reference to only one class of persons, viz. 'All persons who, from and after the approval of the act aforesaid and prior to 12 o'clock noon of April 22, 1889, should enter upon and occupy any portion of the territory with the intent to make selection, settle upon or enter any of the lands therein. All others are not within the pro- hibitory clause.'

"George E. Thornton was lawfully within the territory and began his residence upon the quarter section claimed by him prior to the purchase of said lands by the government from the Indians, and prior to the passage of the act of March 2, 1889. It is admitted by the counsel for the town- site claimants that he claimed the tract in con- troversy as a homestead, for the first time, after. 12 o'clock noon of April 22, 1889, and that in pursuance of said claim he followed up the initial acts of his claim by establishing a residence, cul- tivating, etc., and has so continued to do to the present time, and that said claim was made prior to the time that any portion of the same was claimed by any person or persons as a townsite by any settlement or entry thereon. In the case of the City of Kingfisher vs. John H. Wood and William D. Fossett it appeared from the evidence that Wood was within the territory included in the president's proclamation, dated March 23, 1889, prior to 12 o'clock noon of April 22, 1889; that he was at the time of the passage of the act within the limits of said territory by proper authority. It was held by the local office that in accordance with the views expressed by the hon- orable ex-commissioner, Mr. Stockslager, in a let- ter to Senator Ingalls, under date of April 12, 1889, that. Mr. Wood was on April 22, 1889, a legally qualified entryman. In considering this case the honorable assistant commissioner says: 'I agree with your first conclusion that the fact that John H. Wood has for a number of years prior to April 22, 1889, been a resident within the Oklahoma country did not operate to preclude him from making a homestead entry in Oklahoma

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on said date.' The same construction of the law is again made by the honorable assistant commis- sioner in considering the appeal of John C. Chapin from the rejection by the Kingfisher office of his application to make a homestead entry.

"Thornton was as lawfully and as properly within the territory at the time of the passage of the act of March 2, 1889, as either Wood or Chapin, and in view of the foregoing decisions Thornton has lawfully acquired a prior right to all other claimants to the quarter section claimed by him.

"We therefore conclude that Frank M. Gault initiated a homestead right to the northeast quar- ter of said section thirty-three (33) and that George E. Thornton initiated a homesteadl right to the northeast quarter of said section four before the same had been settled upon or occupied for the purposes of business and trade. That Edward DeTar, Samuel Crocker and Meshack Couch are disqualified from making homestead entry; that

the southeast quarter of said section thirty-three is occupied by people for the purposes of trade and business and there are no valid adverse claims thereto.

"We recommend that each of said homestead entries be canceled; that the occupants of the southeast quarter of said section thirty-three be allowed to enter the same as a townsite under the act of May 14, 1890, and that a hearing be ordered to determine the rights of the several homestead. claimants to said other several tracts of land. JOHN I. DILLE, Register,

"C. M. BARNES, Receiver."

" Register Dille:

"I concur in the above conclusions as to the qualifications of George E. Thornton to make homestead entry because it seems to have been so decided by the honorable assistant commissioner of the general land office. It is by no means cer- tain, however, that the above language used by him should govern us in this case."

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CHAPTER XXII

ORGANIZATION OF OKLAHOMA TERRITORY

The attempts to organize a territorial government for Oklahoma before it was opened to settlement have already been de- scribed.1 During this period marked di- visions of opinion prevailed as to the form which such organization should take. Many of the residents of Indian Territory favored, notwithstanding the failure of the plans proposed at the treaties of 1866, the federation of the tribes and the organiza- tion of a government based on the Okmulgee constitution of 1870; this was the Okmulgee constitution party. Others desired the continuance of conditions as they had existed for years, meaning thereby the isolation of the Territory and preserv- ing it as a great reservation 'where the Indians might work out their destiny ac-

1 See Chapters VIII, XVII; Sidney Clarke's narrative of the efforts in Congress to this end from 1866 until it was finally accomplished.

'The bill for the organization of the Territory of Oklahoma introduced in the house of represen- tatives, December 21, 1885, by which a territorial government was provided including the country of the five civilized tribes, became the subject of a series of arguments by delegations representing the Cherokee, Creek, Seminole and Chickasaw na- tions, who opposed such legislation on the follow- ing grounds:

The organization of the territory assumed, they said, that the five tribes were a menace to civili- zation constituted as they were, whereas, as re- garded civilization, education, industrial advance- ment, and respect for law and order, they were above the average of American communities. In- stead of being an obstacle to the surrounding white communities, they themselves were menaced by the white citizens of the baser sort and by powerful corporations. It was not the voice of the people that called for such legislation, but

cording to their own customs and racial tendencies. While a third party, including those most active in the Oklahoma move- ment, contended for a territorial organiza- tion similar to those created by Congress for other divisions of the public domain, embracing the allotment of lands in sev- eralty to all Indian citizens and providing for the distribution of the surplus among white immigrants, whose entrance for that purpose should be unrestricted.

In the final settlement of the question, a modified plan was adopted. While the earlier bills for the organization of Okla- homa Territory embraced all. the Indian Territory, including the Public Land Strip, the opposition of the five tribes2 was so per- sistent that it became evident that Congress

asserted the delegates, "the clamor of the greedy speculators and adventurers who seek to stimulate such a public sentiment as shall result in the removal of the treaty bars which separate them from their coveted prey."

The argument continued with a summary of the treaty guarantees, and then followed with a forecast of results in case such legislation was adopted. "If the territorial government of Okla- homa shall be organized, as provided in this bill, the ruin of our tribes and people will be speedy and complete. First will appear the scum of white vagabondage, which is always borne on the sur- face and at the front of the wave of westward emigration of the American people. Then will come the horde of railroad hirelings, organized raiders of the tribal rights of the Indians, backed up by corporate powers, whose all-pervading in- fluence is stealthily at work, by day and by night, upon Congress, courts and executive departments. . They will be followed by the grand army . of sharp-witted, desperate land sharks, encour- aged and emboldened by the ill-concealed sympa-

268

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would never consent to the inclusion of the country occupied by those tribes within the proposed territory. Thus the Oklahoma bill, introduced in 1886 in the house by General Weaver and in the senate by Sena- tor Van Wyck, finally passed the house in February, 1889, its provisions applied only to so much of Indian Territory as was not occupied by the five civilized tribes.ª Even this method of fixing a boundary line be- tween Oklahoma and Indian territories was not considered sufficiently definite, and in the organic act that finally passed in May, 1890, the country in- cluded was described in detail, resulting in the tortuous line that formerly marked the boundary between the territories.

The organization of a territory having failed in the Congress which expired on March 4, 1889, the point of interest in the agitation was transferred from Washington to Oklahoma itself, which, before Congress could again convene, had become the seat of a population that both needed and de- manded some general form of government.

thy of respectable citizens of neighboring states. . The legislature after the first election will be chosen, not by the Indians, but by the railroad hirelings and land speculators. Its mission will be, not to guard the rights and interests of the Indians, nor to foster their moral, political and material progress, but to register and legalize the decrees of the men and corporations who will grasp and hold the reins of government. The only hope of the Indians would be in Congress and courts of the United States."

The general power of taxation vested in the ter- ritorial government, the objectors claimed, was in- consistent with the maintenance of tribal integrity and titles, since land must be sold for delinquent taxes. Further, the appointment by a political party of the territorial governor and secretary might result in an official clique opposed to the best interests of the territory, whose power would be directed to a spoliation of the Indians' re- sources. Also, with regard to the provision in the proposed legislation for the allotment of lands in severalty, the resolutions claimed that the hold- ing of land in common was as much a part of

This calls for an account of the agitation during the months following the opening.

A document signed by F. P. Baker, president, and Legrand Byington, secre- tary, of the Oklahoma Capital City Town- site and Improvement Company of Topeka,* as made public a few days before the open- ing, proves that the scheme of a provisional territorial government was outlined in de- tail before a single legitimate settler had entered the country. It began with the fol- lowing address :

"To the People of Oklahoma: The fed- eral government having precipitated a great mass of Anglo-Saxon humanity into the Indian Territory and left them there under its military domination without a semblance of civil authority, the said people are there- by compelled to fall back upon their in- herent right of self-government as declared in the Declaration of Independence. Inas- much as the Oklahoma Capital City Town- site and Improvement Company of Topeka expects to take a prominent part in the transformation of the country, they will

Indian custom as the opposite form of owner- ship was sacred to the white race, and that while the Indian tribes were gradually progressing to this method of ownership, they were not yet ready to undergo such a revolutionary change.

' The territory proposed to be included in Okla- homa Territory by this bill was-"all that part of the United States included within the following limits : Bounded on the west by the state of Texas and the territory of New Mexico; on the north by the state of Colorado and the state of Kansas; on the east by the reservation occupied by the Cherokee tribe of Indians east of the ninety-sixth meridian of west longitude, and by the Creek, Seminole and Chickasaw reser- vations; and on the south by the Creek, Seminole and Chickasaw reservations, and by the state of Texas, comprising what is known as the Public Land Strip, and all that part of the Indian Terri- tory not actually occupied by the five civilized tribes."

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A history of the state of Oklahoma, Volume I, Part 40

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