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Chronicles of Oklahoma
Volume 18, No. 2
June, 1940

By Loren N. Brown

Page 171

Even before the passage of the Dawes Act of 1887, providing for the allotment of Indian lands, steps had been taken by the white men, looking toward the elimination of tribal governments and the allotting of land in severalty among the Five Civilized Tribes, including the Choctaws and Chickasaws. As early as February 23, 1885, a resolution had passed the Senate authorizing the Committee on Indian Affairs to investigate the condition of the Indian tribes in Indian Territory and upon other reservations,1 and the summer of that year found the committee in the land of the Five Nations taking testimony from citizens, government officials, and others that might guide them in determining a policy to be pursued by Congress with regard to their future welfare.

A number of factors had contributed to the growth of a demand that the status of this land be changed from that which had existed since these Indians had been removed to the area during the first half of the century. Each of the Five Nations operated under a constitution which allowed them their own executives, legislative bodies, and separate court systems, administering laws that were foreign in content to those existing in the United States and in the states surrounding them. The Choctaws had a Principal Chief, elected from among the citizens by blood for a two-year term, eligible to succeed himself but once; and the Chickasaws had a similar official elected for a like period, and likewise limited to two terms in succession, whom they called, Governor. Both nations had bicameral legislatures and each had a court system, modeled largely on that of the states, that had authority to exercise sole jurisdiction over all citizens of their respective nations.

There had grown up, in both the Choctaw and Chickasaw Nations, the custom of allowing each citizen to occupy as much land as he desired to cultivate or to use for pasture lands and he was allowed to construct improvements and fence the land, coming to be looked upon as a virtual owner. Upon sale of the improvements, he might pass the right of occupation, and rights in each had come to be looked upon as hereditary; so the users of the land had come to look upon themselves as having proprietary rights, from which they could not be dispossessed. While many of the full-bloods and the less energetic members of the nations were satisfied to retire to a small tract, from which they eked out a meager existence, a class of citizens, consisting largely of

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white men, who had gained citizenship by marriage with the Indians as provided by tribal laws, and mixed bloods; had taken possession of the bulk of the best lands, appropriating them to their own use. Wilson N. Jones, who later became Chief of the Choctaws, in 1890 had 17,000 acres of pasture land under fence in the Choctaw Nation.2 In his testimony before the special investigating committee in 1885, N. B. Ainsworth, a prominent Choctaw attorney, admitted that there were a few pastures in the Nation that were six to ten miles square. Testifying that a subsequent law had been passed, limiting pastures to areas of one square mile, he pointed out that pastures already fenced were allowed to be retained and there was no limit upon the amount of land a man could put under cultivation.3 Through the use of white laborers who were allowed to come into the nations under permit, almost unbelievably large farms came under the control of certain influential leaders in the Territory. The extent to which this practice had been carried was illustrated in the first annual report of the Dawes Commission, when they pointed out in 1894, that they found that 61 citizens had control over 1,237,000 acres out of a total of 3,040,000 in one nation.4

Another cause for complaint was presented by the presence of a large body of whites in the Territory who were without legal or political rights. In spite of attempts made by the federal government to discourage white immigration into the Indian lands under the policy which dated from the Indian Intercourse Act of 1834,5 a large white population had gathered into the lands of the Five Civilized Tribes by 1890. Their presence was noted by the Indian Agents and commented on in each annual report.6 Many were there legally. Many had been brought in by the holders of land to work the farms, or to perform other labor, and remained under permits.

The coming of the railroads also accounted for a large influx of whites. During 1871-2 the Missouri, Kansas and Texas Railway was constructed across the Territory from Kansas to Texas. The Atlantic and Pacific was built from the northeastern corner of the Indian lands to Vinita, also, in 1871 and was extended to Sapulpa by 1889. The Chickasaw Nation was crossed by the Gulf Coast and Santa Fe in 1887 and in the same year the St. Louis and San Francisco line was built across the Choc-

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taw Nation from Fort Smith, Arkansas, to Paris, Texas. From Fort Smith northwest to Coffeyville, Kansas, the Kansas and Arkansas Valley was built during 1888 and 89, while the Choctaw Coal and Railway Company constructed a line from South McAlester eastward to Wister during 1889-90.7 With the coming of each road, many more whites were brought into the region. First came the construction crews, many of whom failed to leave when their work was finished. Operation of the roads required a large personnel, so many more white men were brought to live among the Indians. Then, there came the inevitable development of agriculture and commerce that always accompanies railway construction, and yet other immigrants from the states arrived. The Indian population was threatened with submersion by the incoming white men.

Something of the size of the white wave can be gathered by noting the reports of the Indian agents for the period from 1880-93. In the former year, six thousand intruders living in the Territory without permit or other legal right, were noted,8 while the report for 1881 mentioned fifteen thousand non-citizen residents with permits.9 By 1884, thirty-five thousand, including intruders, were reported10 and in 1890, Agent Leo Bennett estimated that there were one hundred forty thousand non-citizens, out of an estimated total population of two hundred ten thousand in the Territory; grouped as forty-eight thousand laborers in the employ of the Indians, twenty-six thousand other employees, two thousand travelers, and sixty-four thousand intruders.11 Dew M. Wisdom reported the non-citizen population in 1893, the year in which Congress decided to act, as approximately one hundred fifty thousand and noted that it was increasing.12 Efforts to remove the intruders seemed futile and the problem had come to be recognized by the federal government as practically beyond solution.

Here, then, was a virtual army of United States citizens under no court system and without political rights. The Indian treaties had given the red men authority to establish courts for their citizens, but these courts exercised no jurisdiction over citizens of the United States. This fact, coupled with the sparsely settled condition of the area,13 served as an inducement for many fugitives from the states to seek a hiding place there, bringing a law-

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less element into the region that was difficult to control. Law-abiding citizens, on the other hand, had no courts to which they could take their legal disputes for adjudication.

Just as serious, in the minds of the whites, was the lack of political rights. Many towns had grown up around the mines and along the railroads, whose population sometimes ran as high as 5,000 to 10,000. The merchants and residents had no title to the property they occupied. The only thing they could secure, was a lease from some citizen of the respective nation in which they resided, who was occupying that particular ground when the town was established, or from the nation itself. Naturally, they were slow to construct improvements of much value on such lands. They were without educational facilties for their children and had no opportunity to organize them of a public nature. They could not have municipal governments to provide sanitary improvements or to curb those in their midst who were not inclined to be law abiding. This group were active in their agitation for a change in conditions that would improve their status.

In an effort to remedy the evil of legal jurisdiction, Congress, in 1877, passed a law organizing all the country west of Missouri and Arkansas into a judicial district, which was attached to the federal court of the Western District at Fort Smith.14 Violators of federal law, within that area, who were not under the jurisdiction of the Indian courts, were taken to Fort Smith for trial and Indian witnesses or those involved in suits with non-citizens were compelled to make the trip to the court city, often being called back two or three times during the trying of one case. This often entailed actual financial, as well as physical, hardships upon those concerned. It was pointed out, in 1885, that the stage fare from Muskogee to Fort Smith and return was $14.00 and the Indian witnesses were only re-imbursed at the rate of $6.00 for transportation for the trip.15 Too, administrative officers were scarce and often far from the base of their operations. Even under the new arrangement, justice among the whites in Indian Territory was not always adequately administered.

Furthering the plan of extending the jurisdiction of United States courts over the territory, Congress established a federal court in the territory with headquarters at Muskogee, in 1889, with three divisions in each of which court was held twice each year. The other court towns were designated as Ardmore and South McAlester. Certain laws of Arkansas were extended over the region and federal jurisdiction in the area was increased. At the same time, the Chickasaw Nation and the southeastern part

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of the Choctaw Nation were taken from the jurisdiction of the Fort Smith court and added to that of the Northern District of Texas, sitting at Paris, in that state.16 Jurisdiction of the new court, expanded by another act in 1890, extended to all cases arising between United States citizens or between an Indian and a non-citizen of his nation, involving criminal charges, less than felonies, and all civil cases involving more than $100. Felonies still remained under the jurisdiction of the courts at Fort Smith and Paris.17

While conditions were improved under the new system, the problem was not yet solved. The docket of the new court immediately became clogged with misdemeanor cases and the judge could not keep up with the cases filed. Litigants were to pay their own expenses with the exception of fees for the Court Commissioners, three of whom were appointed by the judge to serve under a fee system which soon came to give them a greater income than the judge himself. The residents of the Territory still resented being taken from their own region for felony trials, feeling that they could not be assured of the same measure of justice among strangers. The idea that there were enough white people in Indian Territory by this time to justify a complete judicial system for them, was growing. The situation was such that the Union Agent felt called upon to recommend, in 1893, that the jurisdiction of the federal court be increased to include all cases arising in the Territory, not handled by the Indian courts, even to the extent of increasing the number of judges if necesssary.18

Another problem that presented itself was that of the condition of the freedmen in all the nations, particularly the Chickasaw and Choctaw. While the Treaty of 1866 had provided for their freedom and made possible their admission into the tribes, neither of these two nations had carried out its provisions in their entirety. While the Choctaws had granted the Negroes suffrage and citizenship rights, along with the promise of lands when a division should be made, in an act passed in 1883, they failed to provide lands for their descendants, only mentioning those alive at the time of the Fort Smith Conference in 1865.19 In practice, they did not permit the freedmen full participation in the political life of the Nation, limiting their voting privileges and their educational facilities. In the latter phase there was a particular deficiency, many of the children of the former slaves being allowed to grow up in ignorance.

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The Chickasaws had consistently refused to provide for recognition of the freedmen as provided in the treaty. No division of lands had been made, nor any roll of freedmen citizenship prepared. Here, also, educational facilities were not provided for the Negroes and they were given no consideration in political matters. The Negroes wanted equal rights in the Nation, under the Treaty of 1866 and the 14th and 15th amendments to the federal constitution, but they were denied by the Chickasaws. The Indians felt that to grant such rights would imperil the control, by the citizens by blood, of their government since the freedman population was so nearly the same as that of the red men.20 The plight of this class of residents was seized upon by the proponents of change in the status of tribal governments as another argument for its early completion.

By 1890 society in both the Choctaw and Chickasaw Nations had come to be well defined. Among the Choctaws, there were four distinct groups: Non-citizens, white and Negroes who were further classified as intruders, assertive, defiant, and often criminal, white tenant farmers, usually kindly and intelligent but often ignorant and shiftless, miners who lived in crowded camps, and professional and business men in the towns who were usually working, consciously or unconsciously, for removal of tribal government; intermarried whites, who were closely identified with tribal affairs but who were described as usually containing a disturbing minority who sympathized with the intruders; Indians by blood, "strangely gifted in thought and speech but slow in action and practical judgment...."; and Freedmen, who were in a deplorable condition but more thrifty than most negroes and held themselves aloof from the Negro immigrants from the states.21 Of these classes, the whites had come to outnumber the others by a marked majority.

It is impossible to tell just how much the agitation for reforms in the governmental system and land tenure among the Five Civilized Tribes sprang from a sincere desire on the part of the whites to improve the situation in that area, and how much came from the overwhelming desire to secure more land; to develop a virgin region in order that the entire section of the surrounding country might profit from it; or a desire to gain a voice in governments from which they were excluded by treaty rights.

The agitation here fits into the larger picture of the acquisition of Indian lands by the whites. The wave that had started its all-enveloping sweep across the continent in the 17th century had not yet engulfed all the lands of the red men. Forced west-

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ward while there had been land upon which to place them, the Indians were now faced with the necessity of taking smaller holdings in order that the whites might have the surplus lands for settlement and development. The Dawes Act had opened the way for what appeared to be the last attack upon their holdings and negotiations had been instituted for securing those lands not especially exempted by the law. Longing eyes were cast upon the lands of those tribes which did not come under the workings of that act.

To the Indian Appropriation Act of 1889 was added the Springer Amendment which provided for the opening of the unassigned lands of Oklahoma.22 That region was then opened to white settlement on April 22nd of the same year. In 1890 the newly settled region had been organized into Oklahoma Territory and it is rather significant that the bill providing such organization left the way open for any one, or all, of the Five Civilized Tribes to be added to the Territory when the Indians should signify their assent "in legal manner" to the President of the United States.23 A spirit of growth prevailed in the new Territory. The year 1891 saw the surplus lands of the Iowa, Sac and Fox, and Pottowatomi reservations opened to settlement and added to Oklahoma. The following year, a much larger area was added, in the Cheyenne and Arapaho lands and by the early part of 1893 plans were being drawn for the greatest opening of them all, the Cherokee Outlet, which had been purchased from the Cherokee Indians by the federal government for white settlement.

Hardly had territorial government been established before the more ambitious leaders began to consider statehood. Here, they were confronted by the financial obstacle of carrying the additional load that would come with state government. Nothing daunted, they looked to the Indian Territory to furnish them with the additional resources necessary to insure the success of such a project. The sentiment of a large group of leaders was well stated by William C. Renfrow, Governor of Oklahoma Territory, in his annual report to the Secretary of the Interior, dated at Guthrie, O. T., November 3, 1893, when he wrote:

"It is certaintly [sic] very desirable that the five nations of Indians be included in any state that may be formed...The condition of affairs in the Indian Territory is certainly very deplorable, and with the crudity of their forms of government it will always be difficult to suppress crime."24

In his report for the next year, he wrote that, together, the two regions would make one of the great states of the West, but that Oklahoma could not support a state government adequately.

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He recommended that negotiations which, by that time, were under way be kept on foot toward ultimate allotment in the territory of their eastern neighbors.25

The same forces that had secured the opening of Oklahoma were still at work to obtain the same end for the lands of the Five Civilized Tribes. The towns and cities of the surrounding states were interested in opening this region as a potential trade area. The railroads that operated from Kansas to Texas were desirous of seeing this long stretch of territory more fully developed in order that their revenues might be increased. Many citizens of neighboring states would like to move into the region to improve their financial status if they could feel assured of educational opportunities for their children and political rights for themselves in the new land. They were united in one desire with the white residents of the Territory itself; all wanted the tribal governments extinguished and allotments taken by the Indians.

Testifying before the Senate Committee on Indian Affairs in 1885, G. W. Harkins and Judge B. W. Carter, Chickasaw citizens, both expressed the opinion that eventually their nations would be a part of the United States, as a state. Both expressed a feeling, however, that they were not yet ready for statehood, fearing that the white voters would come in and out-vote the Indians, and that the education of a younger generation of Indians would be necessary before they would be prepared to organize and administer state governments.26

Government officials, too, pointed to the need for a change in conditions in the territory. Union Agent, John Q. Tufts, in testifying before the same committee recommended that each Indian be given title to his lands, feeling that they would be more industrious under the spur of individual ownership. He further pointed out that the Indian courts were notoriously corrupt, but that he felt that the elections were fairly held and that the people, as a group, were opposed to a territorial form of government.27 Agent Bennett was more outspoken in his report of 1890 when he stated that allotment should be brought about. He pointed out that many who publicly opposed the plan for policy's sake, privately favored it and that "almost all" of the prominent Indians had been afforded an opportunity to express themselves and that "Three-fourths of their expressions favor the division of their lands." He said he felt, also, that many who did oppose it would favor it if they were sure the interests of the people might be

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fully protected.28 Agent Wisdom, writing three years later, pointed out that the Indians preferred statehood first, with their present system of land tenure, and the opportunity of working out any new system when necessary.29

If the opponents of tribal government were looking for an excuse to bring their demands before Congress and the people in a lurid light, they had just what they wanted in the election troubles in the Choctaw Nation during the fall of 1892. In August of that year, the balloting had been particularly close in the race for Principal Chief, where Wilson N. Jones and Jacob B. Jackson were the candidates. The Jackson forces held that Jones, then Chief, had control of the National Council, the Choctaw legislative body, and would count him out when the votes were canvassed by that body in October. Some murders were committed before the Council met, those killed being alleged to belong to the Jones group. The Jackson forces immediately armed themselves to prevent the arrest of the accused persons and Governor Jones asked for the Indian police and federal troops to be at Tuskahoma when the votes should be counted. On September 18 a compromise agreement was reached at a conference at South McAlester, between both factions and Union Agent Bennett, by which it was arranged that the accused men were to surrender for trial and the armed groups were to disband.30 The surrenders were made according to schedule but the Jones followers were slow about accepting the terms of the agreement. A band of about two hundred armed men, under Green McCurtain, a strong national leader, encamped near Atoka and threatened to free the prisoners, but desisted from any real action. Agent Bennett and federal troops were at Tuskahoma when the votes were counted on October 3, and Jones was declared elected, but mutterings of unrest and threats kept the troops in the Nation until October 28 before they were finally removed.31

On December 6, 1892, just a little more than a month from the time the troops were removed from the Choctaw Nation, Senator Vest from Missouri introduced a Joint Resolution into the United States Senate which would authorize a commission to treat with the members of the Five Civilized Tribes in Indian Territory, for the purpose of getting them to consent to an agreement similar to those entered into with the other tribes, that would result in their taking title to their land in severalty, and abolishing tribal governments.32 In the course of the debates, the majority of the speakers expressed themselves as favorable to the

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establishment of a different regime in the Territory but the debate became involved in a controversy over the wisdom of extending the jurisdiction of the newly organized court in the region. This, in turn, brought down the wrath of the representatives and senators from Arkansas and Texas, who felt that the courts at Fort Smith and Paris, respectively, would suffer from any diminution of their jurisdiction. In subsequent debates, this side issue stole the interest of the speakers and the resolution was threatened with defeat.33

On January 23, 1893, the resolution reappeared, this time in the form of an amendment to a bill which had been introduced to provide for the purchase of the Cherokee Outlet from the Indians for the purpose of throwing it open to white settlement. The champion of this amendment became Senator Berry, of Arkansas, who introduced it. The inference was made, during the course of the debate on the proposal, that the commission would be bi-partisan.

The Indians, meanwhile, were not unaware that something was being considered that was of vital significance to them. The Five Civilized Nations had adopted a policy, sometime before, of maintaining delegates at Washington at least during the sessions of Congress, to observe the progress of legislation concerning their people. It so happened, also, that the Choctaws and Chickasaws had an additional delegation there during the early months of 1893 who had gone to sign the necessary papers for the release of the claims of those nations to the Cheyenne-Arapaho lands that had previously been opened and added to Oklahoma Territory. These delegates joined with the representatives of the other tribes in sending a circular letter to the excutive of each of the five nations on February 28th in which the attention of the leaders was called to pending legislation.34 The letter showed a keen analysis of the political attitude that was coming to dominate Congress. Those who signed as Choctaw delegates were J. S. Standley, the regular tribal delegate, H. C. Harris, Green McCurtain, D. W. Hodges, Thomas A. Ainsworth, and J. B. Jackson; while Overton Love, William Rennie, and Tandy Walker affixed their signatures as Chickasaw representatives.35

By the end of the short session of Congress, which was underway at the time of its introduction, the Cherokee Strip Bill, together with its proposed amendment, had been attached to the regular Indian Appropriation Bill, as a rider, in which form it

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was passed and approved by the President on March 3, 1893. Section 16 provided for a commission of three members, to be appointed by the President, who were to be authorized to treat with the Five Civilized Tribes, in order to gain their consent to a plan whereby the Indians would consent to allotting their lands and discontinuing their separate governments. The commissioners were only to have power to negotiate agreements, according to the wording of the act, but they could exercise their discretion to the extent of determining the amount of land to be given each Indian. They were also to work to secure the cession of all unallotted lands to the federal government, in order that these might be thrown open for settlement by the thousands of whites who were waiting anxiously for this new frontier to be given them. The members of the Commission were to receive a salary of five thousand dollars, each, per year. The power to employ a secretary, a stenographer, an interpreter or interpreters, and a surveyor or other assistant or agent to aid it in its work, together with the power of setting the salaries of such employees, was given to the Commission. To pay the expenses of the work, a $50,000 appropriation was included in the bill.36

Thus, by March 3, 1893, Congress had definitely launched a program that had as its purpose the removing of the exceptions that had been written into the Dawes Act, of the preceding decade. They were announcing to the nation that their decision had been made; that the conditions in the Indian Territory were such that a change must be made. They had established a hope in the minds of the land-seeking citizens of the United States that a new frontier was about to be opened for the satisfaction of their hunger.37

3627 Stat. L., 612; I Kappler, 484; Tams Bixby, comp., Laws, Decisions, and Regulations Affecting the Work of the Commissioner to the Five Civilized Tribes, 11.

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