CHAPTER XIV
THE WHITE INTRUSION

   "Silent immigration," said John C. Calhoun over sixty years ago, would save Oregon for the American Union. It had saved Texas to the Union, as Calhoun knew. "Silent immigration" has been the instrument of the "manifest destiny" of a large part of the Union, and it was the silent immigration of the "white settlers" of Indian Territory that promoted the failure of the original plans for the Indian asylum.
   The rush of population to the coast after the discovery of gold, the fight for a free-state of Kansas, the cattle traffic, were each in its time a powerful factor in breaking up the Indian reservation system. But all together they could not equal the steady, persistent power exerted by the "intruder" class. For many years intrusion was an insidious influence, working with an effect that was not comprehended, and beyond the power of laws to prevent. No doubt the ideal of those who first planned the colonization of the Indians in a region by themselves was that in this way the race might be preserved in its original purity. Such an ideal was impossible of attainment. Even before the removal of the tribes to the west, the intermarriage of whites and Indians had given some of the most aristocratic families of the old southern states a trace of Indian blood. And this amalgamation of the races has gone on steadily ever since. White traders, Indian agents, individuals coming to the Indian country either as refugees or led thither by longing for the wild life and its occupations, readily took Indian wives, were often adopted into the tribes and became Indian citizens. This mingling of races, it must be understood, began, or rather continued, from the time the Indians were established in the Indian country. The earliest travelers, whose accounts are elsewhere referred to, mention the presence of white men in this country. The French trappers and hunters, employes [employees] of the great fur companies, traversed all the regions about the Arkansas and Red rivers, and left as memorials of their stay the French names of many streams and localities that are found in Oklahoma geography.
   From year to year this intrusion of the members of the alien race continued to bear its fruits. Calhoun invented an apt phrase when he described it as "silent immigration," for only after the lapse of many years can its results be clearly appreciated. In discussing the results of white intrusion in Indian Territory, it is natural to refer to the historic parallel in Texas, where, contrary to and in spite of the most strenuous opposition of the Spanish and Mexican authorities, Americans colonized in Texas in great numbers until finally their strength was sufficient to enable them to assert complete independence of the nation under whose authority they had first submitted, and to wrest an entire province from Mexico and eventually add it to the American Union. In Indian Territory the invasion was similar, but for many years was unorganized, and only when it became sys-[tematic]

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[sys]tematic under the leadership of Payne and Couch did the large results follow which make the historic parallel between the opening of Oklahoma and the conquest of Texas.
   By the Indian intercourse act of 1834, it was made a criminal offense to enter without authority the limits of any Indian reservation. But the penalties prescribed were not sufficient to repel the organized and persistent invasion of later years. Even before the war, the Indian Territory had a large population of the intruder class, and during the decades of the sixties this invasion went on to such an extent as to excite the alarm of the Indians and those charged by the government with caring for the Indians.
   In later years, when it was sought to justify the presence of large bodies of white people on Indian lands, it was argued that the Indians themselves were responsible for such a condition, and that they had invited the white settlers to come among them. To a large degree this was true. The Indians did not fail to be attracted by the propositions made by enterprising whites for the use of their lands, and when the cattlemen, in their search for new range, appealed to the Indian's cupidity by offering to lease for what seemed a substantial money consideration the vacant Indian pastures, there developed very soon a regular system of leasing and permits which brought an increasing number of white men into the Territory with every year.
   The result of the leasing of Indian lands to white settlers in breaking down the isolation of the Indian Territory was foreseen in an attempt to secure such a lease in the very beginning of the concentration policy. In the winter of 1836-37, says McCoy, "an attempt, on a small scale, had been made to introduce into the Indian Territory a principle which, in its effects, would have become subversive of all that gives security to the Indians in the possession of their lands. A man, whose opportunities had given him reputation and influence, conceived the idea of improving his circumstances, which, through bad management, had become much embarrassed, by obtaining a location among the Delawares. By his address he had acquired a great influence over them; he professed great regard for them, pointed out ways in which he could promote their interests, and proposed that they should lease to him, for a given length of time, a mile square of land within their country. To a measure of this kind the consent of the government of the United States was necessary. Four Delawares, therefore, two of whom were chiefs. Were induced to accompany him to Washington, to present to the department of Indian affairs the request that the government would allow the conveyance to be made, to which they attached some other requests. To a general council of the Delawares these matters had been presented in a manner so plausible that the council had agreed to pay the expenses attendant on the journey out of the next annuity which they would receive from the Unites States. In the meantime their flattering friend was to advance money on loan to them.
   "Soon after the departure of the delegation, the propriety of what they had done was questioned by the tribe. They informed me of the circumstance, and that they had even gone so far as to request the secretary of war to advance to the delegation what funds they should need, and deduct the amount from the annuities due the Delaware nation. They now repented sorely of their error, and wrote a letter, through their agent, to the secretary of war counter to the former.

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   "It was evident that if the Delawares, or any other Indians, should be allowed the liberty of leasing land to white people, their country would soon be filled with the latter, and they would be crowded out. If liberty should be given to lease for a few years, the same principle would admit of a lease of many years; and if allowed to lease to one man, they would be allowed to do the same to another. The consequence would be that valuable tracts of land would be wrested from the. First, such as lay nearest the white settlements would be secured to white men, who, by paying the chiefs liberally, or to their satisfaction, even should the consideration be ardent spirits, would purchase their consent to lease these lands. The principle of leasing would, in fact, be tantamount to the privilege of selling." In this instance the design was frustrated, because the department of war refused to transact any business with the delegation.
   The intrusion of white people as the result of which the majority of the population of the Indian Territory was composed of people of white blood a number of years before the Dawes Commission was appointed, came about through a system of permits and the hiring of non-citizens to work and perform the mechanical labor of the Indians. In the laws of the Cherokee Nation for 1875 we find some of the provisions by which white citizens legally came into the Territory and secured a foothold from which they could not again be driven. One of these is the so-called drovers' tax by which non-citizens of the Cherokee Nation who wished to drive stock through the nation might do so by paying certain fees ranging from one cent a head for lambs and kids to five cents a head for cattle and horses and larger animals. Keeping stock in the nation longer than was necessary for the passage subjected the drover to an additional tax. A second provision relating to the transaction of mercantile business in the nation imposed a tax equal to one fourth of one per cent on all bills of purchase by the merchant, and provided a fine for a transaction of such business without license. But the most important of these laws was that which permitted the Indians to hire citizens of the United States. "Any citizen of this nation who shall desire to hire or employ a citizen of the United States as a laborer or mechanic, shall be and is hereby required to obtain therefor a license from the clerk of the district wherein such person may reside. . . . but no permit shall be granted for a longer period than one year." A bond was required for the good behavior of the employe [employee]. The Cherokee Laws for 1892 provided a tax of one dollar per head on all cattle brought into the Cherokee Nation east of the ninety-sixth meridian. And by these laws it cost a citizen fifty cents per month to hire a non-citizen, it being stipulated that such non-citizens should be employed for useful purpose.
   The Choctaw and Chickasaw nations had similar laws regulating the bringing in of non-citizens and trade and intercourse within the limits of their nation. The law of the Chickasaw Nation with reference to the hiring of non-citizen was: "That citizens of any state or territory of the United States wishing to hire or rent land or be otherwise employed in this nation shall be required to enter into a contract with a citizen, and after contract was agreed upon the non-citizen shall place in the hands of the citizen a sufficient amount of money to pay permits. . . . " (Chickasaw Laws 1876.) The other provisions of the Chickasaw law concerning merchants and residence of non-citizens are similar to

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those already quoted from the Cherokee Laws.¹
   An analysis of the intruder question was made by the commissioner of Indian affairs in his report for 1892, in which he quotes the following from the report of the agent at Union Agency: "The intruder seems to flourish principally in the Cherokee, Choctaw, and Chickasaw Nations, there being no intruders at this time among the Seminoles and very few among the Creeks. The Seminoles are seldom troubled with intruders. . . .
   "In the Cherokee, Choctaw, and Chick-[asaw]

[Footnotes]
   ¹An interesting account of the origin of the intruder class and their relation with the Chickasaw and Choctaw nations, was published by R. W. McAdams in 1891. It is evidently written from the standpoint of the intruder class, but in substance its statements are correct. The account follows:
   "The abolition of slavery was for many years a block to Chickasaw and Choctaw progress. Before the war such agricultural development as was done was the result of slave labor. With freedom the ex-slaves became as indolent as the ex-masters. The plow was idle and Texas cattle companies utilized at nominal cost the rich ranges of the prairie lands. Aside from the intermarried whites, many of whom were industrious, law-abiding citizens, the class of white people who inhabited or rather sojourned in the Indian country were as a rule interlopers, stock thieves and refugees from justice. It is easy to imagine the state of affairs under such conditions. Contact with this type of civilization did not elevate the Indian. It demoralized him. The Indian Territory and crime became synonymous. Many of the prominent citizens who prior to the war had cultivated large farms by slave labor, began to realize the necessity of a class of white farm laborers in the country. To induce farmers to settle in the nation a permit law was passed, fixing the annual permit at twenty-five cents. This law had the desired effect. Hundreds of whites began to emigrate from adjacent states and cultivate land for the Indians under a liberal system of tenancy. The Indians now began to realize that a source of wealth to themselves as individuals and a nation was to be derived from this system. Unfitted by hereditary habit and prejudice for the performance of manual labor, they perceived a simple means of gratifying their idle propensity and amassing wealth at the same time. The rich valleys were gradually cleared and put in cultivation. Log cabins and rail fences sprang up where had been a primeval wilderness. As settlements became more plentiful, the condition of the intermarried citizens and mixed-bloods improved accordingly, as they were the classes most benefited, being the most thrifty and enterprising. A great majority of the full-floods had neither the foresight nor the energy to take advantage of the opportunities offered by the tenant system, and as a natural consequence the shrewder elements mentioned supplanted them in the possession of the common domain. About the year 1876, during the administration of Governor Overton, a radical change in the tribal policy toward non-citizens was adopted. Up to that time many thousands of cattle had been permitted to graze in the country, the foreign cattle companies evading the cattle tax law by allowing herds to be held in the name of tribal citizens, who, of course, received fitting remuneration for this deceit. The government, being thus cheated out of its revenue, determined to correct this abuse by driving out the cattle. No revenue arising from the twenty-five cent permit fee, it was determined to raise the fee to twenty-five dollars per annum, which was done by legislative enactment. This action being deemed oppressive and unjust by the non-citizen element, many refused payment when called on for their permits. Now began a vigorous campaign on the part of the tribal government against non-permit-paying white tenants and evaders of the cattle tax law. Governor Overton was a man well fitted for carrying out aggressive measures, his hatred of the whites being equaled only by his unscrupulous cupidity. Thoroughly organizing the militia and personally directing its movements through the country, he marched from farm to farm, leaving in his track devastated homes and driving before him like so many cattle the evicted men, women and children with their stock and household effects. The majority of these 'intruders,' rather than be forcibly dispossessed of their homes, paid Overton the extortionate permit fee, which he appropriated for the wages of the militiamen, in direct violation of his own laws. There was no formality in these collections, many of which were never accounted for. Thousands of cattle were driven out of the country, and the majesty of tribal law was completely vindicated. About two years after this raid the injustice of the $25 permit law became so glaring that it was amended so as to reduce the fee to $5. This reduction served to start the current of white im-[migration]

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[Chick]asaw Nations the intruder question is the most vexatious of all the complications which have arisen among these people, and the situation is constantly becoming more difficult to grasp. The want of any law to punish intrusion has encouraged this numerous class in their encroachments upon the Indian lands and in their disregard for Indian rights or the laws of the Indian country. All efforts thus far made to have Congress provide a penalty for this class of lawlessness have been futile. Section 2148, Revised Statutes United States, is a dead letter and can not be enforced. Many persons who have been removed as intruders have returned even after a second removal. Congress ought to amend section 2148, Revised Statutes, so as to provide a penalty of imprisonment and fine, not a judgment of debt which the courts are unable to collect. Then when removals are made the parties could be kept out or punished as they ought to be for again intruding.
   "There are three classes of those denominated intruders, divided into, first, non-citizens who are refugees from justice in the states, many under assumed names to hide their identity, who had no regard for the laws of the states from which they fled

[Footnotes]
[im]migration again, and the hardy pioneers of civilization began to hew them homes in the sombre forests. The discovery of coal at McAlester (1876) marked an important epoch in the progress of these nations. The development of the mines and the completion of the M., K. & T. railroad brought many non-citizen laborers to the Choctaw Nation, which in the matter of white emigration was behind the Chickasaw. Up to the date of the construction of the G., C. & S. F. railroad through the Chickasaw Nation, the development of the country was steady, but dating from that time (1887) the word most expressive of this progress is 'boom.' Thousands of American citizens poured into the country, allured by the prosperity of those who had gone before. They had heard of the fertile wilderness where crops could be gathered for the planting and taxation and mortgages were but memories of less favored climes. The towns which sprang up along the new railroad grew rapidly, but their pace was none too fast for the progress of the country. Now was the full-blooded Indian's chance to become an independent lord of broad acres tilled by Anglo-Saxon husbandmen; but the echoes of progress, if they reached him in his forest retreat, did not awaken a responsive chord in his stolid nature. The citizens who reaped the benefits were generally those who already had as much land as they were entitled to under an equitable allotment. During the spring and summer of 1888 a difficulty arose between the tribal government and many non-citizens, which for a time assumed a serious aspect. In the matter of a cattle tax the Chickasaws had gone from the extreme of 12 1/2 cents per annum to a law, the enforcement of which meant $1 per head per month. This law was restrictive, and meant to be. Under its operation the non-citizen farmer could hold but five head of milch cows and calves, besides his oxen. As might be supposed, those whose cattle exceeded the limit disregarded the law. Governor Guy took the fields with his militia to enforce the collection of the tax. He confiscated enough stock from each farmer's herd to cover the amount of tax due, and rounded them up in the vicinity of Overbrook. The farmers armed and organized for protection. The spirit which animated the 'Boston Tea Party'—a sense of the injustice of taxation without representation, and resentment of oppressive discrimination—fired their hearts. A party of 'rebels' under the command of Capt. George Stewart, marched to where the cattle were held by the tax collector and his posse, and with the stars and stripes floating at the head of their column, demanded the return of their stock. The collector refused the demand, and the cattle were taken by the farmers, without resistance, in the sovereign name of American citizenship. The leaders of the non-citizens were taken to Fort Smith for trial, charged with assault with intent to murder and promptly discharged by the United States commissioner there. Some of the cattle confiscated during this raid were sold at public sale by the tribal government, as provided by the stock law, the proceeds being appropriated by the nation. The parties buying these cattle shipped them to Kansas City for market, when they were replevied and damages recovered by the lawful owners. It is said many head of cattle thus confiscated and sold were never recovered by their owners, nor was recompense make for the loss."

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and have none for the Indian laws nor rights, but who engage in whisky peddling, gambling, and various sharp practices to gain a dollar or two. This class is now comparatively small and is not increasing in numbers, because their natural inclination leads to crime and their arrest and imprisonment soon follows. The advent of the United States court in this Territory has made their business and residence insecure and many of this class have sought more promising fields in the west.
   "The second class is composed of those non-citizens whose inclination is to observe and obey the laws of the country where they live, but who have been forced into the intruder class by the acts of the Indians themselves. There are many of this class in the Chickasaw Nation and few in the other nations. The greater part of the agricultural development of this country has been the work of 'permitted' non-citizens who, under contracts with individual Indian citizens, have broken out a stipulated acreage of land, erected fences, houses and outbuildings, and in return for their money and labor thus expended under such contracts enjoy the use of these improvements and land for a term of from three to twenty or more years. Although this kind of contract is a violation of the laws, that fact is many times unknown to the non-citizen at the time of making the contract. Often the Indian citizen procures a permit for his leaser for the first year, during which year the non-citizen makes about all of the contracted improvements at a cost of hundreds of dollars. In many instances dissensions then arise and the Indian refuses to have the permit renewed, and the non-citizen is placed on the intruder list and his removal demanded. In such cases this agency holds that the Indian ought in equity to pay the non-citizen for his investments before such non-citizen should be removed, because at the time of making such improvements he was 'permitted' by the Indians and his residence among them legal. While thus a legal resident of the country his labors and investments under contract with the Indian citizen have enhanced the value of the Indian's holdings; these values cannot be removed with the non-citizen, and it is certainly equitable that he should receive compensation therefor.
   "In this second class I also include many non-citizens whose Indian landlords will not allow non-citizens in their employ to have a permit. For instance, one man in the Chickasaw Nation, an intermarried citizen, who has more than a hundred non-citizens on his farms, told me his men did not have and never had a permit; that he would not allow one of them to pay the permit tax; that if they were removed he would move them back; that if these men were intruders, he was responsible himself to his nation for it. This man and other like him are responsible, but the laws of the nation are not enforced against them.
   "In all cases where a non-citizen becomes an intruder through violation of his contract with an Indian citizen if is held that the United States court in the Indian Territory has full jurisdiction and can give to the Indian the possession of his farm, or the non-citizen may secure compensation for his services, as may be finally determined by the court.
   "The third class of intruders, and the one most productive of trouble in these nations, is that composed of so-called claimants to citizenship.
   "This class is most numerous in the Cherokee Nation, though the Choctaws have one case, that of the Glen-Tucker et al., which has been pending in the department for years, and which it is cur-[rently]

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[cur]rently stated involves the rights of five or six hundred persons. The Chickasaws have a few cases, which have arisen principally from the fact that Choctaws are allowed joint occupancy with the Chickasaws in that nation. The Creeks have a half dozen or so cases, none of which are causing any appreciable degree of trouble."

CHAPTER XV
THE FIRST RAILROADS

   The series of treaties concluded in 1866 with the five principal tribes in Indian Territory all contained limited concessions of right of way for railroads through their country to the state of Texas. The eleventh article of the Cherokee treaty contained a grant of right of way 200 feet in width to a contemplated railroad through their domain from north to south and also from east to west.¹ In pursuance of these treaty concessions, as essentially a part of the same scheme, Congress, by appropriate legislation, (Acts of July 25, 26, and 27, 1866) granted public lands and privileges to the Kansas and Neosho, the southern branch of the Union Pacific, and the Atlantic and Pacific Railroad Companies, respectively for the construction of their roads. The Leavenworth, Lawrence, and Fort Gibson Railroad was also conceded like privileges. (See later chapter, "Organized Invasion;" Sidney Clarke's statements.) The stipulated point of entering the Indian Territory was in each case the west bank of Neosho River, where it crosses the Kansas line. As there seemed to be some question whether more than one line of road would be permitted to traverse the Territory in each direction a race was inaugurated between all the north and south lines, each in the effort to outstrip the other in reaching the prescribed point for entering the Indian country. The Union Pacific Southern Branch (subsequently known as the Mis-[souri]

[Footnotes]
   ¹The treaty with the Choctaws and Chickasaws contained the following provisions for railroads (Art. 6, treaty of April 28, 1866):
   "And it is also stipulated and agreed that the nation through which the road or roads aforesaid shall pass may subscribe to the stock of the particular company or companies such amount or amounts as they may be able to pay for in alternate sections of unoccupied land for a space of six miles on each side of said road or roads, at a price per acre to be agreed upon between said Choctaw and Chickasaw nations and the said company or companies, subject to the approval of the president of the United States: Provided, however, That said land, thus subscribed, shall not be sold, or demised, or occupied by any one not a citizen of the Choctaw or Chickasaw nations, according to their laws and recognized usages: Provided, That the officers, servants and employes [employees] of such companies necessary to the construction and management of said road or roads shall not be excluded from such occupancy as their respective functions may require, they being subject to the provisions of the Indian intercourse law and such rules and regulations as may be established by the secretary of the interior: And provided also, That the stock thus subscribed by either of said nations shall have the force and effect of a first-mortgage bond on all that part of said road, appurtenances and equipments situated and used within said nations, respectively, and shall be a perpetual lien on the same, and the said nations shall have the right, from year to year, to elect to receive their equitable proportion of declared dividends of profits on their said stock, or interest on the par value at the rate of six per cent per annum.
   "And it is further declared, in this connection, that as fast as sections of twenty miles in length are completed, with the rails laid ready for use, with all water and other stations necessary to the use thereof, as a first-class road, the said company or companies shall become entitled to patents for the alternate sections aforesaid, and may proceed to dispose thereof in the manner herein provided for, subject to the approval of the secretary of the interior."

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[Mis]souri, Kansas, and Texas) Railway Company, in the fervency of their desire to reach the line first, omitted the construction of a portion of their route, and began operations within the limits of the Cherokee country without having received the previous permission of either the United States or the Cherokee authorities so to do. To this conduct the Cherokees made vigorous objection, and appealed to the secretary of the interior. That officer notified (May 13, 1870), the railroad officials that the Cherokees did not recognize their right to so intrude upon the Territory, and that no work of the kind referred to could be permitted therein until the executive should be satisfied, by evidence submitted in proper manner, that such entry and occupation were in accordance with law. Thereupon the officers and attorneys of the several companies interested appealed and submitted arguments before the secretary of the interior on behalf of their respective interests. The point submitted for the consideration of the secretary and for the determination of the president was, what rights had been given to railroad companies to construct railroads through the Indian Territory and what railroads, if any, were entitled to such privileges and right of way.
   On the part of the Indians it was claimed that the whole scheme of treaties and of legislation looked to the construction of but a single trunk road through the Territory from north to south, and, as far as the Cherokee Nation was concerned, for the like construction of but a single road through its territory from east to west. This interpretation of the treaties and the laws was admitted to be the correct one by all the companies but the Missouri, Kansas and Texas. This company insisted that the meaning of the legislation and of the treaties was to give the right of way to as many roads as might in any manner be authorized by Congress to enter the Territory.
   The secretary of the interior in his opinion (May 21, 1870) expressed an emphatic concurrence in the interpretation insisted upon by the Cherokee delegation. He was further of the opinion that neither of the roads had so far earned a right to enter the Indian country by the construction of a continuous line of road to the legal point of entrance, but that as it might soon be necessary to decide which company should first completely fulfill the conditions of the law, an executive order ought to be issued declaring that no railroad company should be permitted to enter the Territory for the purpose of grading or constructing a railroad until a report should be received from a commission composed of superintendents of Indian affairs for the central and southern superintendencies designating which company had first reached the line. These views and findings of the secretary of the interior were approved by the president and directed to be carried into effect (May 23, 1870).
   This commission reported (June 13, 1870) that the Union Pacific Railway, southern branch—otherwise the Missouri, Kansas and Texas Railway—reached the northern boundary of the Indian Territory, in the valley of the Neosho River on the west side, and about one mile therefrom, at noon on the 6th day of June, 1870, and that at that time there was no other railroad nearer than 16 miles of that point.
   Predicated upon this report, supplemented by the certificate of the governor of Kansas that it was a first-class completed railway up to that point, permission was given the Missouri, Kansas and Texas Railroad Company by the president, under certain stipulations and restrictions as to the methods and character of construction, to pro-[ceed]

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[pro]ceed with the work of building a trunk road through the Indian Territory to a point at or near Preston, in the state of Texas, and the road was rapidly constructed under this authority.²
   The Atlantic and Pacific road (the Frisco), having no competitor, experienced no difficulty in securing the right of construction of its east and west line through the Cherokee country, and was constructed, originally as far as Vinita.
   The effect of the original railroad grants through Indian Territory in operating to extinguish the Indian title and in menacing the integrity of the Indian country was declared to have proved "well springs of woe to the Indian nations." In the objections filed by representatives of four of the civilized tribes to the bill pending in the house of representatives in 1885-86 for the organization of Indian Territory, it was asserted that the hope of obtaining a validation of the two railway land grants conditionally bestowed by Congress in the acts of July 25 and 26, 1866, was one of the "malign" influences supporting the bill. The effect of the acts granting lands to the "Kansas and Neosho Valley railroad," and to the "Southern" branch of the Union Pacific from Fort Riley, Kansas, to Fort Smith, Arkansas, under which original charter the M. K. & T. railroad was constructed through Indian Territory, was to confer upon the first named company a grant of more than 2,880,000 acres of Indian land, and upon the second more than 1,824,000 acres, each grant being conditioned upon the extinguishment of the Indian title. The Indian title, however, (so the objectors asserted) was absolute, solemnly guaranteed by the United States government. Then the question is asked, in the resolutions above mentioned—What right, under the treaties, or under any known code of public morals, however lax, had the United States to make a land grant, whether absolute or conditional, through a country held by such broad, deep and exhaustive titles as those of the Chickasaws, Creeks, Seminoles, Cherokees and Choctaws? "The ninth sections of these land grant acts were declarations of war against the titles of the Indians. The United States, in effect, advised the railway companies that the Indian titles, which the Indians believed to have been settled by the treaties, were not in reality settled by the treaties; that the solemn guarantees of the treaties were hollow phrases used as temporary shifts to put off the Indians. The United States, in effect, notified these railway companies that if, by an industrious, insidious and cunning use of the measureless facilities which the operation of long lines of railroads and the employment of large numbers of sharp and unscrupulous men would be certain to afford them, they could undermine these titles and accomplish their extinguishment, by treaties or otherwise, the reward for their intrigue and fraud should be the acquisition of millions of acres of the best lands on the western continent. The consequences of this deplorable legislation have been for twenty years most annoying to the Indian nations. These nations have found themselves confronted, everywhere, by the agents

[Footnotes]
   ²The M., K. & T. Railroad was regarded with much prejudice by many of the Indians. On opening the road in 1872 attempts were made to induce a Choctaw delegation to join the excursion to Denison. The chiefs refused, alleging that the white man had some horrible designs, like boiling the Indians in kettles. Within the next six years, says a writer of 1879, the Indian's sentiments radically changed. "He now hauls to the stations on the line his pecans, pork, corn and cotton and his surplus game, receives a liberal sum of money in exchange, and goes home satisfied that the railroad is a friendly institution."

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of the railroad companies, struggling in every possible mode of activity by direct and indirect means, to weaken the hold of the Indians upon their lands. An now the representatives of these companies assert . . . . that this Indian title, this ownership in common, will be extinguished by the allotment of the lands in severalty to individuals, and that the land grants conditionally conferred by the acts of 1866 will, thereupon, take effect. The undersigned are not only convinced that this scheme of validating the land grants, through the Indian Territory, has had a large influence in bringing forward this measure [for the organization of Oklahoma] (of course without the knowledge of its friends in Congress), but are also filled with the gravest apprehensions as to its results."
   The protest of the Indians attracted considerable attention, and the government was placed on the defensive in explaining its position in the matter. Secretary of Interior Lamar after admitting that "railroads introduce into the Indian country an element not easily controlled by this department under existing laws," excused the granting of rights of way in the face of treaty obligations by suggesting that railroads "enhance the value of the Indian lands" and "aid in breaking down the natural aversion of the Indians to the division of their lands for individual holdings."
   The suspicion felt by the Indians that the railroad would prove an effective instrument in breaking up their country was well founded in fact. From the very day that trains began running through Indian Territory, the seclusion so much cherished by the Indians became impossible. Moreover, there is reason to believe that the personal factors engaged in promoting railroad building through the Territory were also supporting the movement to organize a territorial government, as was charged in the memorial above quoted. It is an interesting, if not significant fact, that the congressman who introduced (in March, 1866) a bill "to aid in the construction of the Kansas and Neosho Railroad," soon afterward became the author of a bill to give a territorial government to Indian Territory.
   The original rights of way through Indian Territory were, as we have seen, granted by the treaties of 1866. If the Indians were opposed to railroads at the date of these treaties, their opposition was not manifested, or at least their greater interests then at stake caused them to grant this privilege without considering its future consequences. One railroad was built through the Territory and another partially constructed. But later, with these as precedents, other corporations sought similar privileges, so that during the first session of the Forty-ninth Congress (1885-86) ten special bills for right of way across Indian Territory had been presented. It was this great activity in railroad building, coupled with encroachment of white settlements, that roused the Indians to hostility against both the railroads and all movements that seemed to threaten the integrity of their country.
   The authority of the government in relation to railroads across Indian country, and the necessity of these avenues of commerce through Indian Territory, were stated by the commissioner of Indian affairs in 1886. He said:
   "The question of the right of way across this Territory has, by the decisions of the Supreme Court and by legislation previously had by Congress, been deemed to exist with the United States, and the vast growth in the development of the section of country immediately surrounding this Terri-[tory]

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[Terri]tory has been so remarkable during the last ten years as to make the need of additional means of communication and transportation apparent to all. The vast regions of the southwest and the large area of the middle states are now separated from each other, in a commercial sense, by the large country known as the Indian Territory, and the needs of commerce and the development of civilization are looking to the same directness and facility for transportation between themselves as exist in other more favored sections of the country.³
   From what precedes, it is clear that the railroad, as an institution, and especially the first railroads, were among the important forces of disintegration. From the point of view of modern civilization, the railroad has done more to develop and build up Oklahoma than any other material factor, but in considering this country with reference to its origin and the purposes for which it was founded, it is evident that the existence of rail thoroughfares through Indian Territory was an inconsistency, unless accompanied by a productive and superior civilization.

[Footnote]
³House report No. 1356, 49th Cong., 1st. Sess. The report went on to say that ten special bills for right of way across Indian Territory had been presented at that session, that it was likely the next five years would witness great activity in railroad building between the west and southwest, and that in view of the danger and inequity attaching to the granting of special acts to railroad companies a general railroad act should be passed, allowing all responsible incorporated companies, seeking in good faith to cross the Indian Territory, to secure that right, if entitled to it, under general terms instead of by special act.

CHAPTER XVI
THE ACT OF 1871 AND CHANGE OF INDIAN POLICY

   Forty years after John Marshall had delivered his famous opinion regarding the status of the Indian tribes as sovereign nations, Congress by act approved, March 3, 1871, declared "No Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contact by treaty; but no obligation of any treaty made and ratified with any such nation or tribe prior to March 3, 1871, shall be hereby invalidated or impaired."
   When it is recalled that in their earlier relations with the Indians, eh colonies were perforce compelled to recognize their hostile neighbors with the dignity due a dangerous foe, and to placate them by peace offerings and solemn promises consistent with relations between equal nations, the language of this statute indicates a complete reversal of the attitude shown by the American people to the Indians since the days of King Philip and Chief Powhatan. In early American history fear induced respect, and even after the aboriginal possessors of the soil had been driven into the western wilderness, the formality of treaty and solemn convention characterized the dealings of the government with the tribes. The hollowness of these treaty forms had been apparent for years, the Indians themselves had learned from experience that treaty guarantees were subject to reversal and invalidation by the superior power of the government, and hence the enactment of this legislation merely gave the sanction of law to a policy that in practice had been more or less effectively applied for years. At the same time, this law was a powerful instrument in the hands of those who sought to modify the possession by the Indians of their vast estates, and for this reason the abrogation of the treaty system by the act of 1871 may be justly regarded as one of the forces of disintegration now being considered.¹
   About the time this law was given effect, the Indian problem had reached a stage where its solution was imperative. The plan for an inter-tribal federation, as proposed in the Okmulgee constitution, had failed as a practical measure. The pressure of population from without, the white intrusion, the cattle industry, and railway construction within the Territory, made in necessary that some comprehensive and efficient measures should be adopted to coordinate the Indian country with the rest of the Union. The time was approaching when the government must either protect the Indians under the system devised by Jefferson and Jackson, or bring them into more intimate relations with their white neighbors.
   At the time of the passage of the act of 1871, the late Francis A. Walker, eminent also for his services as a soldier and as a political economist, was commissioner of In-[dian]

[Footnotes]
   ¹For the manner in which this law was passed, see the following chapter, Mr. Sidney Clarke's narrative.

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[In]dian affairs. His views, published at that time and later, form the most valuable commentary obtainable upon the status of the Indians at this critical time. Referring to the future of the Indians, he declared: "Whenever Congress shall take up in earnest this question of the disposition to be made of the Indian tribes, its choice will clearly be between two antagonistic schemes—seclusion and citizenship."
   Thus the issues were presented, and it will help to a proper understanding of succeeding events to state the arguments for the side of seclusion as stated by General Walker, who also describes the general advancement of the Indians in civilization and material improvement at this time.
   About 1872, the year in which the first railroad was built through the Territory, while the policy of the government was still directed toward a concentration of Indian tribes in this country, notwithstanding that the pressure of white population without and and the interference of the cattle interests and the "intruder class" within constituted a serious problem and a menace to the integrity of the Indian nations, an outline of the plans for maintaining an ideal reservation system was drawn by General Walker, who had recently resigned the post of Indian commissioner.² His recommendations are the more valuable because they afford a view of conditions at the time, and from that viewpoint we may look forward through succeeding years to the changes made by a different destiny for this country.
   The reservation system, in the opinion of the ex-commissioner, should be made the general and permanent policy of the government. "The proposition is that the United States. . . . should formally establish the principle of separation and seclusion, without reference to the wishes either of the Indians or of encroaching whites; should designate by law an ample and suitable reservation for each tribe, and band not entitled by treaty; and should, in any reductions thereafter requiring to be made, provide that such reductions shall be by cutting off distinct portions from the outside, and not in such a way as to allow veins of white settlement to be injected, no matter whether along a stream or along a railway."
   Now read what General Walker says concerning the isolation of the Indians, in recommendation of an ideal plan which the developments of the next few years rendered impossible of realization in Indian Territory. "The principle of secluding Indians from whites for the good of both races is established by an overwhelming preponderance of authority. There are no mysterious reasons why this policy should be adopted; the considerations which favor it are plain and incontestable. The first is the familiar one, that the Indian is unfortunately disposed to submit himself to the lower and baser elements of civilized society, and to acquire the vices and not the virtues of the whites. . . . There is still another consideration even more important, yet not generally apprehended. It is that an Indian tribe is a singularly homogenous body (socially), and, if not disturbed by the intrusion of alien and discordant elements, is susceptible of being governed and controlled with the greatest ease and effect."
   After stating that the 92 Indian reservations then existing in the United States, either by treaty or executive order, were widely scattered and not located for the permanent interests of either the Indians or the government, too many in number and oc-[cupying]

[Footnote]
   ¹"North American Review," April, 1873.

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[oc]cupying too much territory in aggregate, he continues: "What is worse, some of them unnecessarily obstruct the natural access of population to portions of territory not reserved, while others, by their neighborhood, render large tracts of otherwise available land undesirable for white occupation. Indeed, it may be said that the present arrangement of reservations would constitute an almost intolerable affliction, were it to be maintained without change. Nor are the interests of the Indians any better served by the existing order. Many tribes, even were they disposed to agriculture, would not find suitable land within the limits assigned to them. Others are in a position to be incessantly disturbed and harassed by whites. Others still, while they stand across the path of settlement, are themselves, by ill-considered treaty provisions, cut off from access to hunting grounds, to fishing privileges, or to mountains abounding in natural roots and berries, which would be of the greatest value to them."
   Such being the situation of the reservations then existing, General Walker felt that the next five or ten years must witness a general recasting of the scheme of Indian reservations, "the principal object of which should be, while preserving distinct the boundaries of every tribe, so to locate them that the territory assigned to the Indians west of the Mississippi shall constitute one or two grand reservations, with, perhaps, here and there a channel cut through, so to speak, by a railroad, so that the industries of the surrounding communities may not be unduly impeded."
   General Walker recommended³ a policy of conserving the Indian reservations, of maintaining their racial integrity and promoting their welfare as an individual people requiring the supervision of the superior race that crowded them. It is of interest to note the opposite policy which he inferred might be followed by an unwise government. This retrograde policy would be, he said, the hastening of "the time when all these tribes shall be resolved into the body of our citizenship, without seclusion and without restraint, letting such as will, go to the dogs, letting such as can, find a place for themselves in the social and industrial order, the responsibility of the government of our people for the choice of either or the fate of either being boldly denied; suffering, meanwhile, without precaution and without fear, such debasement in blood an manners to be wrought upon the general population of the country as shall be incident to the absorption of the race, relying upon the inherent vigor of our stock to assimilate much and rid itself of more, until, in the course of a few human generations, the native Indians, as a pure race or a distinct people, shall have disappeared from the continent."
   "If, for the want of a definite and positive policy of instruction and restraint, they [the Indians] are left to scatter under the pressure of hunger, the intrusion of squatters and prospectors, or the seductions of the settlements, there is little doubt that the number of Indians of full blood will rapidly diminish, and the race, as a pure race, soon become extinct. But nothing could be more disastrous than this method of ridding the country of an undesirable element. . . . But if, on the other hand, the policy of seclusion shall be definitely established by law and rigidly maintained, the Indians will meet their fate, whatever it may be, substantially as a whole and as a pure race. White men will still be found, so low in natural instincts, or so alienated by misfor-[tunes]

[Footnote]
   ³"The Indian Question" (1874).

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[misfor]tunes and wrongs, as to be willing to abandon civilization. . . .Half-breeds, bearing the names of French, English and American employes [employees] of fur and trading companies, or of refugees from criminal justice 'in the settlements,' are to be found in almost every tribe and band, however distant. . . . The white men, who, under the reservation system, are likely to become affiliated with Indian tribes as 'squaw men,' are, however, probably fewer than the Indian women who will be enticed away from their tribes to become the cooks and concubines of ranchmen. One is surprised even now, while traveling in the territories, to note the number of cabins around which, in no small families, half-breed children are playing."
   As to citizenship for the 55,000 civilized Indians of Indian Territory in 1874, General Walker declared that if they ever relinquished the autonomy guaranteed them by solemn treaties, it would be caused by their desire for the privileges of American citizenship. "These are not beggarly and vagabond Indians, to whom the offer of subsistence would be sufficient to obtain the relinquishment of their franchises, or the cession of their lands. They are self-supporting, independent, and even wealthy. Their cereal crops exceed those of all the territories of the United States combined. In the number and value of horses and cattle, they are surpassed by the people of but one territory; in expenditures for education, by the people of no territory. . . . They have already advanced so far in civilization as to secure their own future, as against anything but squatter and railroad rapacity; and their fate does not properly form a part of the Indian problem of the present day."
   But excepting this body of Indians, the other less advanced tribes were, as Walker believed, so situated that the government might deal with them as wisdom dictated, regardless of treaty promises. "Few of these tribes," he says, "but are obliged, even now, to seek from the United States more aid than they are entitled to by treaty; while it is certain that in the near future most, if not all, will be thrown in comparative helplessness upon our bounty. The United States being the sole party to which they can cede their lands (8 Wheaton, 543), and the sale of the great body of these lands being their only resource, the government will have the opportunity, not only without fraud or wrong to this people, but for their highest good, and indeed for their salvation from the doom otherwise awaiting them, to cancel the whole of these ill-considered treaties, leaving the natives where they ought to be—subject to direct control by Congress. . . . Under this relation of the parties in interest, and with the pressure of actual want, due to the inability of the natives properly to cultivate what they possess, the United States may at an early date, with good faith and judicious management, easily secure the relinquishment of every franchise that stands in the way of a satisfactory adjustment of the difficulty."
   Referring to the Indian tribes outside of the Five Civilized Tribes, Walker asserts: "Unless the system of reservations shall soon be recast, and the laws of non-intercourse thoroughly enforced, the next fifteen or twenty years will see the great majority of the Indians on the plains mixed up with white settlements, wandering in small camps from place to place, shifting sores upon the public body, the men resorting for a living to basket making, beggary and hog-stealing, the women to fortune-telling, beggary and harlotry. . . . Today [1874] there is no portion of our territory where citizens of

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the United States are not preparing to make their homes. To cut off a reservation sufficient for the wants of this unfortunate people in their rude ways of life; to hedge it in with strict laws of non-intercourse; turning aside, for the purpose, railway and highway alike; and upon the soil thus secluded, to work patiently out the problem of Indian civilization—is not to be deemed a light sacrifice to national honor and duty. . . .
   "The claim of the Indian upon us is of no common character. The advance of railways and settlements is fast pushing him from his home, and, in the steady extinction of game, is cutting him off from the only means of subsistence of which he knows how to avail himself. He will soon be left homeless and helpless in the midst of civilization, upon the soil that once was his alone. The freedom of territorial and industrial expansion, which is bringing imperial greatness to the nation, to the Indian brings wretchedness, destitution, beggary. . . . Surely there is obligation found, in such considerations as these, to make good in some way to him the loss by which we so largely gain. . . . The cornerstone of our Indian policy should be the recognition by government and by the people, that we owe the Indian, not endowments and lands only, but also forbearance, patience, care and instruction. . . . We may as well remember that posterity will grow much more sentimental over the fate of the Indian than any Quaker or philanthropist of today. The United States will be judged at the bar of history according to what they have done in two respects—by their disposition of negro slavery, and by their treatment of Indians."
   That the Cherokees were entitled to be ranked among the civilized communities, and that their condition was far better than that of the agricultural classes of England, was a claim advanced by General Walker in 1872, "The Cherokees," he says,⁴ "number about fifteen thousand, and are increasing. They have their own written language, their national constitution and laws, their churches, schools, and academies, their judges and courts. Their dwellings consist of 500 frame and 3,500 log houses. During the year 1872 they raised three million bushels of corn, besides large quantities of wheat, oats and potatoes, their aggregate crops being greater than those of New Mexico and Utah combined. Their stock consists of 16,000 horses, 75,000 neat cattle, 160,000 hogs, and 9,000 sheep. It is needless to say that they not only support themselves, but sell largely to neighboring communities less disposed to agriculture. [The completion of the M., K. & T. Railroad through eastern Indian Territory in 1872 afforded them an outlet for these products.] The Cherokees have sixty schools in operation, with an aggregate attendance of 2,133 scholars. Three of these schools are maintained for the instruction of their former slaves. All orphans of the tribe are supported at the public expense. The Cherokees are the creditors of the United States in the sum of $1,716,000, on account of lands and claims ceded and relinquished by them. The interest on this sum is annually paid by the treasurer of the United States to 'the treasurer of the Cherokee nation,' to be used under the direction of the national council for objects prescribed by law and treaty."

[Footnote]
   ⁴"The Indian Question" (1874).