A history of the state of Oklahoma, Volume I, Part 48

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

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In closing this chapter on the expansion of the area of settlement over all of Okla- homa territory, there remains one important result of it all to be noted. It was foreseen as a prophecy when the original Oklahoma was opened to settlement, and the words used then will serve to indicate whither all the events just described are tending.

Commenting editorially on the outcome of the Oklahoma rush, the Chicago Tribune said (April 24, 1889) : "The real settlers who will develop and civilize Oklahoma are not yet there. The great wave of the rush will recede again, carrying back a large proportion of those whom it swept in.

Probably not twenty-five per cent of those who went in Monday will remain and be- come permanent homesteaders.

"The real significance of this remarkable invasion of Oklahoma lies not so much in the eagerness of the boomers to get new and free land as it does in its being the first step towards the complete opening of the Indian Territory to white civilization, and towards the formation of a new state, which will be knocking at the door of the Union before we are aware of it. . It is only the beginning of a movement which will ultimately and before long absorb the whole of Indian Territory in the new State of Oklahoma. It is the opening of a door which will not be closed again until white industry and commerce have spread all over that region. The Indians living east of Oklahoma have already held one convention in which there was de- veloped a sentiment favorable to taking up land in severalty and selling off what lands they do not want. Thus there is a move- ment all along the line which will more speedily than is generally imagined change the Indian Territory into a white-red state, with the possibility that for the first time a red man may find himself in Congress."

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PART V

DISSOLUTION OF TRIBAL GOVERNMENTS

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CHAPTER XXIV

LANDS IN SEVERALTY

The division of Indian lands in severalty was tried in the case of some northern Indians before the war, and was proposed for the tribes of the Indian country by the commissioner of Indian affairs in his report of 1859. He says: "The flattering accounts in relation to the adoption by several of the northern tribes of Indians of the plan of allotments to them in severalty of a portion of their tribal country has induced this office to suggest to the superintendent of the southern superintendency that the fact be communicated to the Indians within his district with a view to a consummation of a similar policy among them. Such a system could very well be administered and carried out by the Indians themselves, with a little assistance from the government. It would be necessary that their lands should be regu- larly surveyed. . This being done, it would be advisable for them to select res- ervations for themselves, which would at once give to all classes an idea of separate property in lands, and, in my judgment, stimulate them to greater exertions to be- come practical agriculturists, and they would progress more rapidly in all the arts of civilization. Thus, too, a prosperous and thriving community would be formed, which would soon be in a condition to come in closer contact with the white race."

The apportionment of the Indian lands in severalty and the opening of a part of Indian Territory to white settlement were measures advocated early in the Civil war

by W. G. Coffin, superintendent of the southern Indians. In a report1 dated Sep- tember 1, 1862, he says, referring to the probability of new treaties being made with the tribes in rebellion, "Let the treaties pro- vide that the Indians shall take their land in severalty, and wholly abandon the policy of holding them in common. . the treaties also provide for the survey of Let all the Indian reservations valuable for ag- ricultural purposes, and after the Indians make their selections, open up the balance to sale and settlement by whites. I am aware that it has been, and perhaps now is, in contemplation to concentrate the Indians in the states further north in the Indian Territory; but in my opinion that would be bad policy.

With a knowledge of the developments that have been witnessed in the preceding chapters, it seems remarkable how exactly the recommendations of these officials of the Indian department were fulfilled. It is evident that the allotment idea was not new at the time it was given practical effect by Congress in 1887, and that in the solution of the Indian question it had long been con- ·sidered by those taxed with the burden of this problem.

In endeavoring to break down the Indian system of commercial or tribal possession of lands, the government struck at the very

' Ex. Doc., 3d Sess., 37th Cong., Vol. II., pp. 311-312.

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foundation of Indian economic practice. The idea of individual ownership of land was unknown to the American Indian in his native state. The members of the tribe might, as individuals, possess articles of dress, weapons and trinkets, which were often, according to their superstition, car- ried along after death to the happy hunting ground, but the land around their village was a "common" and the crops that were raised and the herds that pastured there belonged to all within the village or tribe. An Indian's reasoning as to the benefits of commercial land holding has thus been re- ported: "If I die, my wife cannot lose her home; my children cannot lose their homes. It cannot be taken from my children for debt; it cannot be sold from over their heads. They have a home just as long as any other Indian has a home." That was the logic of the system to which they clung as tenaciously as Americans cling to indi- vidual ownership.

As long as the Indian was content with the low standards of economic progress that characterized his history during the greater portion of American history, this communism answered all the demands of Indian social existence. But, as a result of contact with the white people, when per- sonal ambition and rivalry for wealth began to actuate some members of the tribe, the system quickly exposed its fundamental faults. Under the influence of the example of civilized people, the nations of the Indian Territory had, while still adhering to the inherited system, modified it to the extent of allowing individuals to cultivate and use for grazing as much land as they could fence off from the common estate. Though the ownership still remained with the tribe or nation, each individual was privileged to use as much land as his enterprise and am-

bition could compass. Such was the com- mon practice among the five civilized tribes as long as tribal ownership prevailed, and from this arose the disproportionate division of the lands which proved the strongest argument against the system on which it was based, and finally brought about its abolition. The inequity of common owner- ship was noted in the report of the commis- sioner of Indian affairs in 1887 (the year in which the first allotment law was passed). "The more enterprising among these Indians," referring to one of the five tribes, "have in actual cultivation and under fence many times more land than their per capita share." In the same year, the plat- form of principles adopted by one party in a Creek election, stated the dangers that threatened the nation's economic welfare. "We have noticed with much concern the in- closing of large tracts of the public domain and the common pasturage by a few citi- zens to the exclusion of others. We con- demn this practice as a species of monopoly that is in direct conflict with our system of land tenure. Every citizen, whether rich or poor, has an equal, and only an equal, interest with every other citizen in our landed estate, and is therefore actually en- titled to only a pro rata share of this our common heritage." With such a clear per- ception, on the part of many of the Indians, of the evils of their land-holding system, coupled with their earnest conviction that each member of the tribe was entitled to his equal share, it is evident that the doctrine of allotment in severalty would appeal with special force to the citizens of the five tribes even at that time.

The basis for a division of the lands of the five tribes among individual owners had been laid in the treaties of 1866 (as had been recommended by Superintendent Cof-

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fin in the preceding quotation). The original Cherokee constitution provided that the national lands should remain common property, the improvements alone being the property of individual citizens, who, how- ever, were not permitted to dispose of them to the United States or citizens of the same. But by an amendment adopted November 26, 1866, "the lands . . . shall remain common property until the national council shall request the survey and allotment of the same." This amendment was adopted in accordance with article 20 of the treaty of July 19, 1866. The provisions in the Choctaw-Chickasaw treaty of April 28, 1866, relating to allotment are quoted below .?

The allotment in severalty of the lands among the Indians outside of the five civilized tribes was finally made the subject of the general law of 1887, the provisions of which and its results in expanding the settled area of Oklahoma territory have been described in the previous chapter. When the Oklahoma Indians took indi- vidual homesteads, they immediately, under the provisions of the act, became citizens of the territory and the United States. The tribes, being numerically small in propor-

tion to the surrounding population, were absorbed in the general citizenship, and the jurisdiction of Oklahoma courts and civil administration was extended over whites and Indians alike.

But the problems of bringing the mem- bers of the five tribes into effective and harmonious relations with the system of American government presented many more difficulties and complications. At the time the allotment of lands was proposed in the treaties of 1866, it was the ostensi- ble purpose that, after such division had been effected, the Indians should still con- stitute an "Indian state," patterned after other state governments, but with the legis- lative and administrative powers controlled and directed by the Indians themselves. This was the ideal plan, long cherished by those who foresaw the complete civiliza- tion of the Indian. Had it been possible to realize these ideals, we might have wit- nessed the establishment of such an Indian state, with an Indian majority directing the affairs of government, with Indian judges in the courts, with counties and towns offi- cered by Indians, and with this race occu- pying the dominant position in agriculture and industry ; at the same time, the whites

' Art. 11. WHEREAS, The land occupied by the Choctaw and Chickasaw nations, and described in the treaty between the United States and said nations, of June twenty-second, eighteen hundred and fifty-five, is now held by the members of said nations in common, under the provisions of the said treaty; and, whereas, it is believed that the holding of said land in severalty will promote the general civilization of said nations, and tend to advance their permanent welfare and the best in- terests of their individual members, it is hereby agreed that, should the Choctaw and the Chicka- saw .people, through their respective legislative councils, agree to the survey and dividing their land on the system of the United States, the land aforesaid east of the ninety-eighth degree of west longitude shall be, in view of the arrangements hereinafter mentioned, surveyed and laid off in

ranges, townships, sections, and parts of sections; and that for the purpose of facilitating such sur- veys and for the settlement and distribution of said land as hereinafter provided, there shall be established at Boggy Depot, in the Choctaw terri- tory, a land office and that, in making' the said surveys and conducting the business of the said office, including the appointment of all necessary agents, and surveyors, the same system shall be pursued which has heretofore governed in respect to the public lands of the United States, it being understood that the said surveys shall be made at the cost of the United States and by their agents and surveyors, as in the case of their own public lands, and that the officers and employes shall re- ceive the same compensation as is paid to officers and employes in the land offices of the United States in Kansas.

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would have enjoyed equal opportunities, would have lived peaceably by the side of their Indian neighbors, content to live thus, even though in the minority numerically and in political and economic influence.

The impossibility of reaching such a hap- py result has been explained. Before the tribes could attain the advancement where lands were distributed per capita and as in- dividuals placed upon a plane of equal citi- zenship and free competition and inter- course among themselves and with the sur- rounding population, new and disturbing factors had been introduced to delay and render extremely difficult the solution of the questions involved. Before a practical step was taken in making American citizens of the Indians, many thousands of white "intruders" had come among the five tribes and had secured material advantages and permanent residence which both the tribal and federal governments found it impossi- ble to take away. Owing only a limited allegiance to the federal government, for the most part unable and not desiring to in- corporate themselves as tribal citizens, the intruders in time formed a large proportion of the total population, without the legal rights of citizens, without courts, without social institutions, yet, in other respects, active, producing factors in the country of their residence. Seeing this increasing class of intruders, and witnessing the re- sults of their superior enterprise and intelli- gence, the Indians naturally regarded them with jealousy and saw safety only in retain- ing their old national system of isolation. For it was clear, if the gates of seclusion were opened and individualism substituted for the common tribal bond, that the in- truders would quickly gain control and the Indians be reduced to the position of a minority, if not of distinct inferiority.

Thus there were two influences, partly cooperating and partly antagonistic, in working out the Indian problem in the In- dian Territory. The government was stead- ily pursuing its plans for allotment in sev- eralty and the raising of the Indian to the dignity of citizenship. At the same time the intruder class were clamoring for a comprehensive citizenship that would em- brace themselves and afford legal guarantee to the property and residence values which they had established ; while they wanted the principal benefits the government was seek- ing to provide, their interests were in many respects opposed to those of the Indians, and the government was confronted with the problem not only of adjusting the affairs of the Indians themselves, but of set- tling the relations of the original owners with the intruding residents.

The political status of the tribes was a subject of discussion in the report of the commissioner of Indian affairs in 1885. He says: "What political development lies be- fore the Indians of the Indian Territory it is impossible to foresee; but one thing is evident, the idea of maintaining perma- nently an imperium in imperio, such as now exists, must, in some respects, be aban- doned. The idea of Indian nationality is fast melting away, and the more intelligent Indians are themselves awaking to this fact. In a word, the Indians in the Indian Ter- ritory must sooner or later break up their tribal relations, take their lands in severalty, and to all intents and purposes become citi- zens of the United States."

One of the first effects of white intrusion upon the political situation was in the ex- tension of federal protection to white resi- dents through the courts. At first the jur- isdiction of outside courts, in the territory of Arkansas, was stretched over the Indian

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Territory. This was done in 1877 when the Indian Territory was attached to the western district of Arkansas, the district court taking cognizance not only of civil and criminal cases among the white in- truders, but also of cases arising from inter-tribal relations. With the increase of population, the Arkansas courts proved inadequate in affording the prompt judicial relief necessary in a social community. Oc- casionally a criminal was taken several hun- dred miles to Fort Smith, at great expense to the government, but civil suits, unless involving large sums, could not be main- tained in that distant court. The only courts held in Indian Territory prior to 1889 were Indian tribal courts, before which the pleas of white residents were not heard. The United States court established in Indian Territory, at Muskogee, by the act of March 1, 1889, had a limited jurisdiction, like a justice court, and it afforded little relief to the settlers during the opening of Oklahoma.

The Oklahoma organic act of May 2, 1890, devoted several paragraphs to the matter of the establishment of a new sys- tem of federal courts for the Indian Terri- tory. The Territory being divided into three divisions, courts were to be held at Muskogee, South McAlester and Ardmore. But the jurisdiction of these courts was limited as before, the commissioner that was provided for each division being little more than a justice of the peace. As a re- sult the two hundred thousand white people in Indian Territory, not being subject to the law of the Indian nations, had to seek the benefits and protection of the law partly in the federal courts at Fort Smith, Arkansas, and Paris, Texas, and partly in the minor federal courts of Indian Terri- tory. Naturally a conflict of jurisdictions

arose, and the seeking of justice at Fort Smith or Paris involved expense and in- convenience that were heavier penalties than the original injustice. The local courts, administering justice for an area as large as Indiana, were constantly overburdened.

The system resulted in a practical denial of justice, except in matters of paramount importance, and then only after much de- lay. It was claimed that the expense of prosecuting crimes and maintaining courts in Indian Territory amounted to about one- seventh of the total judicial expense of the United States, and this disproportionate ex- pense was not due to the prevalence of crime but to the system. The fees obtained by marshals in taking criminals to court proved temptations to an abuse of their power in making arrests. In some of the first appeals from the people of Oklahoma and Indian Territory to the general govern- ment for relief from the burdens and ills arising from lack of self-government, the condition of the courts furnished one of the strongest arguments for the petitioners. "We have," to quote from the memorial of the Purcell statehood convention of Sep- tember, 1893, "five ambiguous and conflict- ing court jurisdictions. The Indians have their local tribunals, with their barbarous whippings and executions by shooting. The Indian agent is empowered to enforce cer- tain of the federal statutes with police at his back. Two foreign courts, with power of life and death over our people, sit at Fort Smith, Arkansas, and Paris, Texas. Our home federal court is little more than a big justice court, that smacks strongly of the police court. We have so much law that we can't tell where one court's jurisdiction leaves off and another's begins." Thus the cry for judicial home rule was taken up, and through all the subsequent agitation for

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statehood was echoed and re-echoed and reinforced by a mass of evidence that was constantly growing to show the inadequacy of the system.

The status of the Cherokee people, to take a particular case, and their relations with the general government underwent gradual change from the treaties of 1866 until the nation was absorbed into the state. The intruder class became more numerous every year, and a source of greater trouble to the nation, owing to the fact that the Cherokee lands bordered on Kansas and Arkansas. Under the treaties the right to decide citizenship or residence claims be- longed to the tribes concerned, but the in- truders at last became so numerous and strong that they formed an organization among themselves to pass upon their own claims, and others that might be submitted to them, with attorneys and ample funds to defend each claim in outside courts against the decision of the tribes. By this time the government was committed to the policy of breaking up the Indian reservations and allotting the lands in severalty. In line with this policy, the jurisdiction of the United States courts was gradually being extended over the Indian country, absorbing many of the former powers of the Indian tribal courts. By persistent negotiation and pressure, the Cherokee Commission had se- cured the cession and opening of the Out- let, against the bitter opposition of a large part of the tribe, and from that time the dissolution of Cherokee nationality pro- ceeded slowly but surely step by step. With the other nations similar influences were working to the ultimate end.

The situation of the non-citizen class in towns and cities in the Indian Territory under tribal government was illustrated in a few sentences in the memorial by the Pur-

cell statehood convention of 1893: "The white non-citizens, the wealth-producing class of the Five Nations, have erected im- provements to the value of many million dollars upon the land and put in cultivation nearly every acre utilized for farming. Under the tribal laws they can negotiate no leases for longer time than one year, and are subject to eviction by the Indian land- lord at the expiration of that time. A score of towns containing from 1,000 to 5,000 residents, and many of less population, have personal property aggregating fully $5,000,- 000, with not a shadow of title to the soil beneath their buildings, many of which are substantial and expensive structures, one alone built by non-citizen capital costing $70,000. The personal property of the town of Ardmore approximates $1,000,000. These towns have no municipal govern- ments and are wholly dependent upon pri- vate liberality and enterprise for the main- tenance of what few sanitary and other imperative public regulations they enjoy. Their growth and public order, health and comfort require that they have municipal organizations."

In another place the memorial offers a severe criticism on the tribal governments : "The politicians who control the five na- tions and are anxious to perpetuate the same to their pecuniary profit and for the wreaking of factional vengeance, are in- capable of appreciating the principles of free government or administering it. The recent Locke insurrection in the Choctaw Nation, which resulted in many political assassinations and required federal inter- vention to prevent the execution of partisan prisoners, is an instance in point. These governments are mere oligarchies for self- aggrandizement and public spoliation."

From these quotations, it is clear that the

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majority of the so-called intruder class were in a position of antagonism to the five national governments to which in many re- spects they were subject, but in whose di- rection they had no voice. Here were two peoples living side by side, the weaker pos- sessing the lands and the government, and the stronger and more enterprising chafing under their restrictions and clamoring for the representation in government and the independence of occupation and ownership to which they could put forth no claims of

' A general discussion of the status of the In- dians and whites and the problems then pressing for solution was written by R. W. McAdams, in the Oklahoma Magasine in 1894, and is quoted as an example of some of the highly colored opinions then current regarding this question:

"Many of the country's most profound students of the Indian question-men and women who have made the race and its relation to the nation a life study-have become converts to the policy of in- dividualism and severalty. The citizenship ques- tion aside, the folly and injustice of reserving many million acres of arable land as a wilderness used only as a camping ground for a few thou- sand lazy, squalid governmental paupers, is pal- pable. If the Indian must be fed and herded like a dumb brute, it should be done within smaller enclosures and not so senselessly at the expense of the American homesteader. He will fare as well on federal rations upon an allotment of 160 acres as upon an allotment of many hundred acres per capita, and give less trouble to his herders, the United States agents and military.

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A history of the state of Oklahoma, Volume I, Part 48

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