USA > Oklahoma > A standard history of Oklahoma; an authentic narrative of its development from the date of the first European exploration down to the present time, including accounts of the Indian tribes, both civilized and wild, of the cattle range, of the land openings and the achievements of the most recent period, Vol. II > Part 33
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In addition to enrolling all of the Indians in each of the sev- eral tribes the commission had also to enroll all of the freedmen of each tribe. The freedmen were the negroes who as slaves had belonged to the Indians before the abolition of slavery. The sur-
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viving freedmen and all descendants of freedmen were entitled to the allotment of lands.
The allotment of lands to the Indians and freedmen was a difficult and tedious procedure. The lands had to be classified and the valuation placed upon each tract in order that individual allotments might be properly apportioned and equalized as to value. The allottee might elect to choose a homestead at one place and one or more additional tracts of land (to complete the total value apportioned) elsewhere on the reservation. Then, too, some of the less progressive fullblood Indians absolutely refused to choose any allotment whatever and these had to be allotted by arbitrary selec- tion by the commission or under its direction.
The Dawes Commission had its headquarters and principal office at Muskogee, but much of its business necessarily had to be trans- acted in other parts of the territory. Sometimes it became neces- sary for part of the commission and its staff of assistants to go into the field and to live in camp. In the Choctaw Nation the work of the commission was still further complicated by the arrival of some hundreds of Indians descended from families which had remained in Mississippi when the main body of the tribe had migrated to the West sixty or seventy years before.
The Dawes Commission was often severely criticised for acting with so much deliberation in matters which many believed that could have been adjusted with less regard for formality and red tape. With such an extensive responsibility devolving upon the members of the commission, most matters of detail had to be delegated to subordinates and clerks of which a small army were employed. Whether selected by Civil Service examinations or as the result of political favoritism, many of these were not distin- guished for their efficiency. As practically all of these employes came from outside the Indian Territory, this disposition to deal and to act with very great deliberation came to be regarded as a distinguished characteristic of all "carpet baggers" as nonresident officials were commonly called.
Former United States Senator Henry L. Dawes by whose name the commission came to be commonly known and who was the nominal chairman, took little or no active part in the performance of its duties. Tams Bixby, of Minnesota, was vice-chairman and the active head of the commission during the greater part of the period in which its heaviest work was done. Another prominent member of the Dawes Commission (and the only one of all its members who
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was a native of Oklahoma) was Gen. Frank C. Armstrong.1 Other members of the Dawes Commission were Meredith H. Kidd (1893-4), Archibald S. MeKennon (1893-1900), Thomas B. Caba- niss (1895-97 and 1904-5), Alexander B. Montgomery (1895-6), Thomas B. Needles (1897-1905), Clifton R. Breckinridge (1900- 05), and William E. Stanley (1903-04).
THE ATOKA AGREEMENT
The Dawes Commission concluded an agreement with the duly authorized representative of the Choctaw and Chickasaw Nations, April 23, 1897, whereby the lands of the Choctaws and Chickasaws were to be allotted in severalty to the members of these tribes. This agreement, which was concluded in a council held at Atoka and which has always been called the Atoka Agreement in consequence, marked the dawn of a great change in the Indian Territory and the decline of the authority and influence of the several tribal governments dated from that time.
For eight years the Government had been treating with the five civilized tribes for the cession of lands and, after the appointment of the Dawes Commission, in 1893, negotiations were constantly in progress for the purpose of inducing the Indians of these tribes to divide their lands and change to the system of private ownership. None of the tribal governments recognized the right of private ownership of real estate. All lands were owned in common, even though they might be cleared, fenced and cultivated for purely private benefit.
By the terms of the Atoka Agreement, all lands within the
1 Frank C. Armstrong was born at the Choctaw agency at Skulla- ville (where his father, Maj. F. W. Armstrong, was the Government tribal agent) in 1835. His early life was spent in the Indian Terri- tory. His education was completed at Holy Cross College, Worces- ter, Massachusetts. In 1855 he was commissioned a lieutenant in the Second United States Dragoons, with which regiment he saw much active service in the West. In 1861 he resigned his commis- sion to enter the Confederate service, which he did as major of the Third Louisiana Infantry. He was promoted to the grades of colonel and brigadier-general, and was in command of a division of cavalry at the end of the war. He subsequently became an overland mail contractor in Texas. From 1885 to 1889 he was an inspector in the Indian service. From 1893 to 1895 he was assistant commis- sioner of Indian affairs, and from 1895 to 1898 he was a member of the Dawes commission. General Armstrong died in Washington, District of Columbia, in 1909.
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Indian Territory belonging to the Choctaw and Chickasaw Indians were to be allotted to the members of those tribes so as to give each member a fair and equal share as far as possible, considering the character and fertility of the soil and the location and value of the lands. It was provided that the allotted lands should remain un- taxable for twenty-one years unless sold by the allottee, and also that the allottee's homestead of 160 acres could not be sold until twenty-one years after the patent was issued. Surplus lands over and above the 160-acre homestead allotment could be sold under certain restrictions.
For years the Indians of the five civilized tribes had discussed the question of having their lands "sectionized," some favoring, but more opposing. The work of surveying the lands of the five civ- ilized tribes and sub-dividing them into townships and sections did not begin until after the appointment of the Dawes Commission. The lands of that part of the state embraced in Oklahoma Territory had been surveyed in 1871-2-3. The work of surveying the lands of the five civilized tribes was done by the topographers of the United States Geological Survey. The surveying of their lands was quite generally regarded by the members of the five civilized tribes as a precursor of the dissolution of tribal relations, as indeed it was.
The mineral lands of the Choctaw and Chickasaw Nations, con- sisting principally of deposits of coal and asphalt were segregated and reserved from allotment, to be held or sold for the benefit of all of the Indians of those tribes.
The representatives of the other civilized tribes entered into agreements with the Dawes Commission for the allotment of their lands along lines similar to those of the Atoka Agreement, as fol- lows: Seminole Nation, Wewoka, September 16, 1897; Creek Nation at Washington, District of Columbia, April 8, 1900; Cherokee Nation, Washington, District of Columbia, April 9, 1900. .
THE CURTIS ACT
The law commonly known as the Curtis Act, by the terms of which the United States Government undertook to close up the affairs of the tribal governments of the five civilized tribes, followed as a natural consequence after the several tribal agreements to the allotment of lands. The Curtis Act provided for a number of sweeping changes, including the substitution of Federal courts for all tribal courts, the surveying and platting of townsites and the Vol. II-23
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sale of town lots, the enrollment of all tribes by the Dawes Com- mission and the definite determination of tribal citizenship, the allotment of lands, the leasing of mineral lands, the incorporation of cities and towns and Federal control of tribal schools. This law went into effect two days after its passage and approval (June 28, 1898), but many months passed before some of. its provisions could be enforced.
The text of the Curtis Act which gave force and approval to the Atoka Agreement and which included that notable document was as follows :
AN ACT FOR THE PROTECTION OF THE PEOPLE OF THE INDIAN TERRITORY AND FOR OTHER PURPOSES
Sec. 1. Certain Crimes to Be Punished .- Be it enacted by the Senate and House of Representatives of the United States of America in Congress Assembled, That in all criminal prosecutions in the Indian Territory against officials for embezzlement, bribery, embracery, the word "Officer" when the same appears in the criminal laws heretofore extended over and put in force in said Territory shall include all officers of the several tribes or nations of Indians in said Territory.
Sec. 2. Authorizing, Making Nations Parties to Suits .- That when in the progress of any civil suit either by law or equity, pending in the United States Court, in any district in said Territory, it shall appear to the court that the property of any tribe is in any way affected by the issues being heard, said court is hereby authorized and required to make said tribe a party to said suit by service upon the chief or governor of the tribe, and the suit shall thereafter be conducted and determined as if said tribe had been an original party to said action.
Sec. 3. Jurisdiction Where Tribal Membership Denied .- That said courts are hereby given jurisdiction in their respective districts to try cases against those who may claim to hold as members of a tribe and whose membership is denied by the tribe, but who con- tinues to hold said lands and tenements notwithstanding the objec- tion of the tribe; and if it be found upon trial that the same are hield unlawfully against the tribe by those claiming to be members thereof, and the membership and right are disallowed by the Com- mission to the Five Civilized Tribes, or the United States Court, and the judgment has become final, then said court shall cause the parties charged with unlawfully holding said possession to be re- moved from the same and cause the lands and tenements to be restored to the person or persons or nation or tribe of Indians entitled to the possession of the same: Provided always, That any person being a non-citizen in possession of lands, holding the posses- sion thereof under an agreement, lease, or improvements contract with cither of said nations or tribes, or any citizen thereof, executed
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prior to January first, eighteen hundred and ninety-eight, may, as to lands not exceeding in amount one hundred and sixty acres, in defense of any action for the possession of said lands show that he is and has been in peaceable possession of such lands and that he has while in such possession made lasting and valuable improve- ment thereon, and that he has not enjoyed the possession- thereof a sufficient length of time to compensate him for such improvements. Thereupon the court or jury trying said cause shall determine the fair and reasonable value of such improvements and the fair and reasonable value of such lands for the time the same shall have been occupied by such person, and if the improvements exceed in value the amount of rents with which such persons should be charged the court, in its judgment, shall specify such time as will, in the opinion of the court, compensate such person for the balance due, and award him possession for such time unless the amount be paid by claimant, within such reasonable time as the court shall specify. If the finding be that the amount of rents exceed the value of the improvements, judgment shall be rendered against the defendant for such sum, for which execution may issue.
Sec. 4. Authorizing Sale of Improvements Where Citizenship Denied .- That all persons who have heretofore made improvements on lands belonging to any one of the said tribes of Indians claiming rights of citizenship, whose claims have been decided adversely under the act of Congress approved June tenth, eighteen hundred and ninety-six, shall have possession thereof unto and including December thirty-first, eighteen hundred and ninety-eight ; and may, prior to that time, sell or dispose of the same to any member of the tribe owning the land who desires to take the same in his allot- ment; Provided, That this section shall not apply to improvements which have been appraised and paid for, or payment tendered by the Cherokee Nation under the agreement with the United States approved by Congress March third, eighteen hundred and ninety- threc.
Sec. 5. Making Tribe Party to Suit. That before any action by any tribe or person shall be commenced under section three of this act it shall be the duty of the party bringing the same to notify the adverse party to leave the premises for the possession of which the action is about to be brought, which notice shall be served at least thirty days before commencing the action by leaving a written copy with the defendant, or, if he can not be found, by leaving the same at his last known place of residence or business with any person occupying the premises over the age of twelve years, or, if his residence or business address can not be ascertained by leaving the same with any person over the age of twelve years upon the premises sought to be recovered and described in said notice; And if there be no person with whom said notice can be left, then by posting same on the premises.
That the summons shall not issue in such action until the chief or governor of the tribe, or person or persons bringing suit in his own behalf, shall have filed a sworn complaint, on behalf of the tribe
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or himself, with the court which shall, as near as practicable, describe the premises so detained, and shall set forth a detention without the consent of the person bringing said suit or the tribe, by one whose membership is denied by it; Provided, That if the chief or governor of the tribe refuse or fail to bring suit in behalf of the tribe, then any member of the tribe inay make complaint and bring said suit.
Sec. 6. Regulating Continuances .- That the court in granting a continuance of any case, particularly under section three, may in its discretion, require the party applying therefor or give an under- taking to the adverse party, with good and sufficient securities, to be approved by the judge of the court, conditioned for the payment of all damages and costs and defraying the rent which may accrue if judgment be rendered against him.
Sec. 7. Restitution-Judgments for .- That when a judgment for restitution shall be entered by the court the clerk shall, at the request of the plaintiff or his attorney, issue a writ of execution thereon, which shall command the proper officer of the court to cause the defendant or defendants to be forthwith removed and ejected from the premises and the plaintiff given complete and undisturbed possession of the same. The writ shall also command the said officer to levy upon the property of the defendant or de- fendants subject to execution, and also collect therefrom the costs of the action and all accruing costs in the service of the writ. Said writ shall be executed within thirty days.
Sec. 8. Police Jurisdiction Conferred .- That the jurisdiction of the court and municipal authority of the City of Fort Smith, for police purposes in the State of Arkansas is hereby extended over all the strip of lands in the Indian Territory lying and being situated between the corporate limits of the said City of Fort Smith and the Arkansas and Poteau rivers, and extending up the said Poteau river to the mouth of Mill Creek; and all the laws and ordinances for the preservation of the peace and health of said City, as far as the same are applicable, are hereby put in force therein : Provided, That no charge or tax shall ever be made or levied by said city against said land or the tribe or nation to whom it belongs.
Sec. 9. Limitation on Right to Bring Certain Action .- That all actions for restitution of possession of real property under this act must be commenced by the service of a summons within two years after the passage of this act, where the wrongful detention or posses- sion began prior to the date of its passage; and all actions which shall be commenced hereafter, based upon wrongful detention or possession committed since the passage of this act must be com- menced within two years after the cause of action accrued. And nothing in this act shall take away the right to maintain an action for unlawful and forcible entry and detainer given by the act of Congress passed May second, eighteen hundred and ninety. (Twenty-sixth United States Statutes, page ninety-five.)
Sec. 10. Allotments-When .- That when the roll of citizenship of any one of said nations or tribes is fully completed as provided
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by law, and the surveys of the lands of said nation or tribe is also completed, the commission heretofore appointed under acts of Con- gress and known as the "Dawes Commission" shall proceed to allot the exclusive use and occupancy of the surface of all the lands of said nation or tribe susceptible of allotment among the citizens thereof, as shown by said will, giving to each, so far as possible, his fair and equal share thereof, considering the nature and fertility of the soil, location, and value of same; but all oil, coal, asphalt, and mineral value of deposits in the lands of any tribe are reserved to such tribe, and no allotment of sueh lands shall carry the title to such oil, coal, asphalt, or mineral deposits; and all townsites shall also be reserved to the several tribes, and shall be set apart by the commission heretofore mentioned as incapable of allotment. There also shall be reserved from allotment a sufficient amount of lands now occupied by ehurehes, schools, parsonages, charitable institu- tions, and other public buildings for their present actual and neces- sary use, and no more, not to exceed five acres for each school, and one acre of each church, and such parsonage, and for such new schools as may be needed; also sufficient land for burial grounds where necessary. When such allotment of the lands of any tribe has been by them completed, said Commission shall make full report thereof, to the Secretary of the Interior for his approval : Provided, That nothing herein contained shall in any way affect any vested legal rights which may have been heretofore granted by act. of Congress. Provided further, That whenever it shall appear that any member of a tribe is in possession of lands, his allotment may be made out of the lands in his possession, including his home if the holder so desires. Provided further, That if the person to whom an allotment shall have been made shall be declared upon appeal as herein provided for, by any of the courts of the United States in or for the aforesaid Territory, to have been illegally accorded rights of citizenship, and for that or any other reason declared to be not entitled to any allotment, he shall be ousted and ejected from said lands; that all persons known as intruders who have been paid for their improvements under existing laws and have not surrendered possession thereof, who may be found under the pro- visions of this act to be entitled to citizenship shall, within ninety days thereafter, refund the amount so paid to them, with six per cent interest, to the tribe entitled thereto ; and upon their failing to do so said amount shall become a lien upon all improvements owned by such person in such Territory, and may be enforced by such tribe; and unless such person makes restitution no allotments shall be made to him; Provided further, That the lands allotted shall be nontransferable until after full title is acquired and shall be liable for no obligations contracted prior thereto by the allottee, and shall be nontaxable while so held; Provided further, That all towns and cities heretofore incorporated or incorporated under the pro- visions of this aet are hereby authorized to secure by condemna- tion or otherwise, all the lands actually necessary for public improve- ment, regardless of tribal lines; and when the same can not be se-
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cured, otherwise, than by condemnation, then the same may be acquired as provided in sections nine hundred and seven and nine hundred and twelve, inclusive, of Mansfield's Digest of the Statutes of Arkansas.
Sec. 11. Allotment Records .- That when report of allotments of lands of any tribe shall be made to the Secretary of the Interior, as hereinbefore provided, he shall make a record thereof, and when he shall confirm such allotments the allottees shall remain in peace- able and undisturbed possession thereof, subject to the provisions of this act.
Sec. 12. Coal, Oil and Asphalt Lands .- That the Secretary of the Interior is hereby authorized and directed from time to time to provide rules and regulations in regard to the leasing of oil, coal, asphalt and other minerals in said Territory, and all such leases shall be made by the Secretary of the Interior; and any lease shall be made by the Secretary of the Interior ; and any lease for any such minerals made shall be absolutely void. No lease shall be made or renewed for a longer period than fifteen years, nor cover the mineral in more than six hundred and forty acres of land, which shall con- form as nearly as possible to the surveys. Leases shall pay on each oil, coal, asphalt, or other mineral claim, at the rate of one hundred dollars per annum, in advance, for the first and second years; two hundred dollars per annum in advance, for the third and fourth years, and five hundred dollars in advance, for each succeeding year thereafter, as advanced royalty on the mine on which they are made. All such payments shall be a credit on royalty when each said mine is developed and operated and its production is in excess of such guaranteed annual advance payments ; and all leases must pay said annual advanced payments on each claim, whether developed or not ; and should any lessee neglect or refuse to pay such advanced annual royalty for the period of sixty days after the same becomes due and payable on any lease, the lease on which default is made shall become null and void, and the royalties paid in advance shall then become and be the money and property of the tribe. Where any oil, coal, asphalt, or other mineral is hereafter opened on land allotted, sold, or reserved, the value of the use of the necessary surface for prospecting or mining, and the damage done to the other land and improvements, shall be ascertained under the direc- tion of the Secretary of the Interior and paid to the allottee or owner of the land by the lessee or party operating the same, before operations begin; Provided, That nothing herein contained shall impair the rights of any holder or owner of a leasehold interest in any oil, coal, asphalt, or mineral which have been assented to by Congress, but all such interest shall continue unimpaired hereby, and shall be assured to such holders or owners by leases from the Secretary of the Interior for the term not exceeding fifteen years, but subject to payment of advance royalties as herein provided, when such leases are not operated, to the rate of royalty on coal mined, and the rules and regulations to be prescribed by the Secre- tary of the Interior, and preference shall be given to such parties
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in renewals of such leases: And provided further, That when under the customs and laws heretofore existing and prevailing in the Indian Territory leases have been made of different groups or parcels of oil, coal, asphalt or other mineral deposits, and possession has been taken thereunder and improvements made for the develop- ment of such oil, coal, asphalt or other mineral deposits, by lessees or their assigns, which have resulted in the production of oil, coal, asphalt, or other mineral in commercial quantities by such lessees or their assigns, then such parties in possession shall be given prefer- ence in the making of new leases, in compliance with the direction of the Secretary of the Interior; and in making new leases due con- sideration shall be made for the improvements of such leases, and in all cases of the leasing or renewal of leases of oil, coal, asphalt, and other mineral deposits preference shall be given to parties in possession who have made improvements. The rate of royalty to be paid by all lessees shall be fixed by the Secretary of the Interior.
Sec. 13. Organization of Municipalities .- That the inhabitants of any city or town in said Territory having two hundred or more residents therein may proceed by petition to the United States court in the district in which such city or town is located, to have the same incorporated as provided in Chapter twenty-nine of Mansfield's Digest of the Statutes of Arkansas, if not already incorporated thereunder; and the clerk of said court shall record all papers and perform all the acts required of the recorder of the county or the clerk of the county court or the Secretary of State, necessary for the incorporation of any city or town, as provided in Mansfield's Digest, and such city 'or town government when so authorized and organized shall possess all the powers and exercise all the rights of similar municipalities in said State of Arkansas. All male in- habitants of such cities and towns over the age of twenty-one years, who are citizens of the United States, or of either of said tribes, who have resided therein more than six months next before any election held under this act, shall be qualified voters at such election. That mayors of such cities and towns in addition to their other powers, shall have the same jurisdiction in all civil and criminal cases arising within the corporate limits of such cities and towns as, and co-extensive with United States commissioners in the Indian Territory, and may charge, collect, and retain the same fees as such commissioners now collect and account for to the United States; and the marshal or other executive officer of such city or town, may execute all process issued in the exercise of the jurisdiction hereby conferred, and charge and collect the same fees for similar services, as are allowed to constables under the laws now in force in said Territory.
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