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CHAPTER XVIII
CAPTAIN PAYNE AND HIS SUCCESSORS
CAPT. D. L. PAYNE
From the close of the forty-first
Congress to the forty-ninth Congress no substantial
progress was made in the movement to open Oklahoma
to settlement, and the creation of a territorial government.
In the meantime the battle was transferred from Washington
to the west, where the legions of Payne and
Couch were formed to invade the Territory for
homestead settlement, under the name of Payne Oklahoma
Colony.
In the history of Oklahoma, David
L. Payne will always be a conspicuous character.
He was aggressive and determined, possessed in unlimited
degree a personal fearlessness that enabled him to
defy the soldiers of the government, and was an ideal
leader for the invasion of the forbidden lands of
Oklahoma. More than this, however, history finds it
difficult to characterize the man and his cause. Payne,
by his friends, has been eulogized and credited with
the ideal qualities of the leader of a forlorn hope
in a holy cause. By others he has been declared an
outlaw, the foremost of a body of rough adventurers,
engaged in a desperate enterprise in defiance of the
will of the government, and without the redeeming
features of a crusade because the objects sought were
not the liberation of a people from bondage but the
gratification for a lust for land. American history
contains several examples of men of the Payne
type, whom the love of adventure and the peculiar
excitement of conquest have driven to undertakings
that, stripped of the romantic glamour and enthusiasm
of the immediate circumstances, cannot be justified
on the grounds of impartial benefit to human liberty
or the advancement of civilization and general enlightenment.
Not as parallels but as analogous figures in history,
we may instance the dramatic episode of Aaron Burr,
whom history now judges less of a traitor, than a
far-seeing but injudicious expansionist; or the ill-fated
filibuster of Captain Walker to Nicaragua.
Historical judgment may find that Payne was
unconsciously an instrument in achieving a result
that, in the wonderful growth and accomplishments
of the state of Oklahoma, will redound more and more
to his credit and make his name and deeds revered
as long as the history of Oklahoma, is known. However,
considering his actions with regard to their time
and conditions, it must be said that they were contrary
to the laws of the nation, that they were not performed
in behalf of the greatest good to the greatest number,
and that the lands which he sought were not of vital
necessity to a suffering people. The public domain
during the seventies and eighties was far from exhausted,
though it must be admitted that the "Oklahoma
country" offered peculiar attractions to intending
settlers.1 In passing judgment on this
unique figure of Okla-[homa]
[Footnotes]
1Concerning the hunger of
American settlers for Indian lands, ex-Commissioner
of Indian Affairs Walker said (in 1873): "The
eagerness of the average American citizen of the Territories
for getting upon Indian lands amounts to a passion.
The ruggedest flint hill of the Cherokees or Sioux
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[Okla]homa history, it must be understood
that he based his invasion on the grounds of equity
and right, even though contrary to the desires of
Congress. The lands comprised in the Oklahoma country
had been, as already stated, ceded to the government.
The government having failed to use the cession for
the original purpose. Payne and his supporters contended
that this country thus reverted to the public domain,
and was subject to settlement under the general land
laws. This version was the pretext and logic of the
entire Oklahoma movement, and there can be no doubt
that many were actuated by sincere belief in the justice
of their cause on this ground. Of the life and character
of Captain Payne, a sympathetic account of him has
been written by his friend, Sidney Clarke, and is
reliable as to essential facts; it is given below.2
[Footnotes]
is sweeter to him than the greenest pasture which
lies open to him under the homestead laws of the United
States. . . . Now, while it cannot be denied that
there is something in all this suggestive of the reckless
daring and restless enterprise to which the country
owes so much of its present greatness, it is yet certain
that such intrusion upon Indian lands is in violation
of the faith of the United States and endangers the
peace and renders the civilization of tribes and bands
thus encroached upon almost hopeless. The government
is bound, therefore, in honor and in interest, to
provide ample security for the integrity to Indian
reservations.
2On
Thursday evening, November 27, 1884, a man of vigorous
intellect, and of determined purpose, addressed an
assemblage of his fellow citizens at Wellington, Kansas.
In earnest words and with sublime faith in the justice
of his cause, he plead for the opening of Oklahoma
to settlement. It was said at that time it was the
finest effort he had ever made in the city. For months
and years this brave and determined man, this pioneer
of civilization, this gallant soldier of the republic,
had been hunted down by the civil and military officers
of the federal government, though his only crime was
his inflexible purpose to seek a home for himself
and associates upon the public domain. As often as
he had been arrested, so often had he demanded a trial
by a jury of his countrymen, and so often was a trial
refused. He believed with thousands of others, that
there was no law rightly interpreted, which excluded
American citizens from this fair land, and every impulse
of his noble nature protested against the injustice
which dictated the policy of exclusion. In the preceding
summer he had been arbitrarily arrested by United
States troops, dragged to Fort Smith through storm
and heat, his health seriously impaired, and then
discharged without even the formality of a warrant
of arrest. Many of his followers had been treated
with brutal indignities, reflecting everlasting dishonor
upon those whose duty it was to administer the law
upon the basis of equality and justice to all. Smarting
under these monstrous wrongs, and knowing that the
government was protecting with the army the cattle
syndicates then in full possession of Oklahoma, his
address at Wellington was eloquent in purpose. No
man who heard it doubted his fidelity to duty, or
that he would willingly sacrifice his life, if necessary,
that others might enter the land of the Fair God.
When he had concluded his address, he retired to the
Barnard Hotel and slept soundly during the night.
He arose early in the morning, ate a hearty breakfast,
and was unusually cheerful. Before leaving the table,
and while answering a question relating to the status
of the Oklahoma lands, he swooned and fell, and in
a few brief moments his spirit had passed to the world
beyond.
As his body lay in state thousands of
his admirers looked upon his face, and at the funeral
on the following Sabbath, the procession was the largest
ever seen in Wellington, numbering over a thousand
people and extending over one mile in length. At the
grave, after religious exercises, the Wellington Guards
fired a volley in respect to the soldier comrade whose
dust they were consigning to the earth. Not only in
Kansas, but throughout the country, the death of this
man was received with profound regret, and many were
the eulogies passed upon his life and character. Public
meetings were held in many places to give expression
to the grief that was felt by all classes of people
at his untimely death.
And who was this man thus conspicuous
in the great work of opening Oklahoma to settlement,
and who was thus honored and mourned as his life went
out in the cause he loved so well? He was none other
than Capt. David Lewis Payne, the president
of Payne's Oklahoma Colony.
With a courage greater than that which
marches unblanched to the field of battle, and with
a patience and fortitude that knew no such word as
failure, the Payne Oklahoma Colony, numbering
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The invasion of Oklahoma
by Payne and his colony began in 1879. For five years
he remained the active head of organized movements
to take possession of the lands. As remarkable as
any other feature of the invasion were the means employed
to
[Footnotes]
15,000, scattered over many states, pursued the great
work they had in hand. They knew what it had cost
to advance the lines of civilization from Plymouth
Rock to the Pacific shore. They fully comprehended
the geographical and commercial situation of Oklahoma,
the last of the unoccupied portion of the available
public domain of the United States. In the vista of
the future they discerned a sovereign state peopled
by many millions and rich in all the elements of wealth
and power. They foresaw that the star of empire was
marching with rapid tread tot he great central regions
of the continent, and that the state they were struggling
to found would be one of a galaxy that would ere long
control the policy of the nation. They looked down
to the southwest some six hundred miles away, to the
Mediterranean sea of this western hemisphere, and
perceived that in the dawn of the twentieth century
it would be dotted with the commerce of the world.
They anticipated the construction of a canal connecting
the Atlantic with the Pacific, through which the ships
of all nations will pass, blotting out the courses
heretofore followed through distant seas, and centering
in the deep water harbors of the gulf, the products
and the exchanges of all the continents and distant
people.
Such were the conceptions of those who
composed the vanguard of civilization here, and Payne
and Couch and other heroic spirits were fit
leaders of a crusade to accomplish the glorious work.
David Lewis Payne, was born near
Fairmont, Grant county, Indiana, December 30, 1836.
He was the son of a farmer and was reared upon a farm.
Like most farmers' sons at that time he did not enjoy
the advantages of a liberal education. While yet a
boy he had a thirst for knowledge. His intellect was
keen, and the ambition when characterized his career
in later years, was not unobserved by those who knew
him in his boyhood. He was fond of books, and the
family Bible and the pastor's library were diligently
read by young Payne long before he reached
his majority. While his love of home and friends was
strong, his enterprise and love of adventure were
greater, and the tide of emigration which swept westward
in 1858 brought him to the territory of Kansas, and
he became a citizen of Doniphan county. He was at
once known for his activity and enterprise and for
the interest manifested in the affairs of the territory.
He was a free state Democrat, though as subsequent
events in his career demonstrated, he was more of
a patriot than a partisan. Hence it was, when President
Lincoln issued his first call for volunteers in 1861
Payne was among the first to respond. He enlisted
as a private in Company F, Fourth Kansas regiment,
afterwards consolidated with the Third, and served
for the full term of three years. His company was
attached to the army of the frontier. In the brilliant
engagements of the southwestern campaign, he was conspicuous
for his bravery, and was never wanting in his devotion
to duty.
On his return home, in 1864, he was elected
a member of the state legislature. The war was yet
going on. The might forces of the Southern Confederacy
were yet unchecked. Kansas was largely drained of
her men and her resources. The session was an important
one. Payne acted well in his part in the duties
of legislation. He espoused the cause of the soldiers
in the field, and fought with determination and success
a proposition to grant bounties for future volunteers,
which he regarded as an unjust discrimination against
the soldiers who had endured for years, without hope
or promise of reward, the dangers and hardships of
war. He declared in an eloquent speech that he was
ready to re-enlist without bounty, as soon as the
legislature adjourned, and he promptly redeemed his
promise. True to the generosity of his nature he re-enlisted
as a private soldier in the place of a drafted man
who had a large family to support. He was enrolled
in Company D, Eighth United States Veteran Corps,
and becoming a member of the celebrated Hancock Corps,
followed its fortunes in the Army of the Potomac till
the end of the war.
It was during this period that I became
intimately acquainted with Payne. I was able
to be of some slight service to him and the comrades
of his company and he returned to me the noblest service
which one man can to another—the service of a
pure and unselfish friendship which lasted until the
end of his life. I happened to know that the great
war secretary, Edwin M. Stanton, offered him
a commission in the regular army, but so great was
his attachment to his company that he declined the
offer. In his letter of declination he said: "There
are only a few of the Kansas boys here, and I wish
to stay with them. All the loyal states will be represented
at Richmond and the highest favor you can do our Kansas
company is to give us a place in the advance as we
move on the last stronghold of the rebellion."
This request was complied with, and it was the privilege
of the gallant Payne to participate in the
battles which ended in the fall of the Confederate
capital, and the final surrender at Appomattox. With
the
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convert public opinion in favor of the
enterprise and the extent of the influences used to
effect the ultimate end.3 A newspaper,
the Oklahoma War Chief, was founded by Payne
and published to promote the interests of the colony.4
To illustrate further
[Footnotes]
instinct of a true solider, he remained in the army
until the term of his enlistment expired in 1866.
In the following winter he was elected
sergeant at arms of the Kansas legislature, and in
the spring of 1867 he was made postmaster at Fort
Leavenworth. Some time after this an Indian outbreak
occurred in western Kansas, and he raised a company
and was commissioned by Governor Crawford as
Captain of Company D, Eighteenth Kansas Cavalry. Four
months constituted the term of service. The dreadful
disease, cholera, raged during that time, and twenty-seven
per cent of the regiment, including losses in battle,
was swept away. Payne himself barely recovered
from a severe attack. In this terrible ordeal his
though and care were for the men of his company. He
was at once a commander and a nurse. He went everywhere
among the sick and dying, took the severest cases
to his own tent, soothed with his own hands, their
dying hours, and paid from his private funds for the
care of his men suffering from the contagion. On one
occasion, after making a detail to care for the sick,
he said, "I must have a few hours rest. Here
is $10 each. These men cannot recover. Take good care
of them. Pay strict attention to their wants and note
all they say. If they have any words for friends at
home, be sure and get the name and place and remember
their last requests."
It is told of him that when ordered from
the fort for active service, two men of his company
were left behind hopelessly ill in tents at the post.
Payne visited them, and finding one suffering
from lack of clothing, pulled off his own flannels
and placed them on the sick and dying soldier, remarked:
"Cheer up, my boy, don't be discouraged. I hope
to see you soon, and there will be oceans of fun ahead
on the plains."
The same year found him again in the
field in command of Company H, Nineteenth Kansas Volunteer
Cavalry, called out to suppress another Indian outbreak.
Three days after he received his authority from the
governor, his company was full and ready for the field.
The regiment was sent to Camp Supply and was attached
to the command of General Custer, and participated
the campaign against the hostile Indians in the western
part of the then Indian Territory (now Oklahoma) and
in the Panhandle of Texas. Custer pursued the
hostile Indians for nearly forty days in the midst
of a rigorous winter, rescued white prisoners, captured
two of the principle chiefs, and brought the savages
back to subjection by the vigor of his campaign against
them. Payne was always ready for the most daring
service. General Custer admired his bravery
and the men of his regiment called him "Old Ox
Heart," as they gathered around the camp fire
and recalled his generous qualities and heroic deeds.
It was in this and other expeditions that he gathered
extensive information about the country now included
within the boundaries of Oklahoma. He comprehended
at once the resources and the possibilities of this
great expanse of the public domain, and saw that it
was the basis on which to found a new American commonwealth.
His keen observation was always at play, whether scouting
in the enemy's country, or in the flash of battle,
or in the duties of the camp.
In this campaign, as in all others, he
served out the full term of his enlistment and with
it ended his military career in the service of the
United States. It should be mentioned that in the
fall of 1864, Payne commanded a company of
Kansas Militia at the battle of Westport, and there,
as elsewhere, he was heroic and true. It may be said
also, that his terms of service as a federal soldier
aggregated five years and six months, a longer period
than that of any other volunteer. A communication
to him from the War Department in regard to his military
service concluded as follows: "It is proper to
add that the records of this office show that you
served as an enlisted man in Company E, Tenth Kansas
Volunteers from August, 1861, to August, 1865; in
Company G, Eighth U. S. Volunteers from March, 1865,
to March, 1866; as Captain of Company D, Eighteenth
Kansas Cavalry from July, 1867, to November, 1867,
and as Captain of Company H, Nineteenth Kansas Cavalry
from October, 1867, to October, 1869."
While absent in the field, Payne's
deputy in the postoffice at Fort Leavenworth became
a defaulter, and a new postmaster had been appointed.
The bondsmen of Payne were held for the amount,
but he sold his property and made good the sum to
the last cent. This made him a poor man, but undaunted
by adverse fortune, he made his way to Sedgwick county,
Kansas, then but sparsely settled, and located in
the township which now bears his name. For a time
he tried living in a dug-out ten miles distant from
any human habitation, exposed to extreme hardships,
but always hopeful of the future, and with a courage
that never faltered nor failed. The early settlers
in Sedgwick county knew him well, and there are many
men now living who honor his memory, as they remember
how he divided his last pound of flour or his last
side
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the strenuous and thorough efforts of
the Oklahoma promoters, they brought the question
to the prominence of a national political issue. J.
B. Weaver, in a notable speech in Congress on
the Oklahoma question (March 11, 1886), declared that
the
[Footnotes]
of bacon with them in the winter of 1870-71. The first
public religious service in Payne township was held
at Payne's ranch, and the first Sunday school
established. He gave to the school a handsome library.
In the fall of 1871 the people of Sedgwick
county elected him to the legislature as a Democrat,
though the county was largely Republican. Radical
and loyal as he had been in the war, and having shown
his mettle to the enemy on many a well fought field,
he was liberal and magnanimous in time of peace. Hence
it is not strange that he originated a bill providing
for the removal of the disabilities of confederate
soldiers. His argument in support of the measure was
sound, patriotic and conclusive. Among other things,
he said: "Kansas was the most radical state during
the war. She should now take a position of the most
liberal and progressive, proving to the south that
we cherish no animosities against her people. We of
the north fought for principle and conquered. Let
the young state of Kansas now extend the offices of
good will and friendship to the people of the late
confederate states as the basis of a permanent peace."
The bill was finally passed, but not till after a
soldier convention was held at Topeka, and the stay-at-home
politicians in the legislature made to feel that generosity
was better than hatred, and that the arguments of
Payne and his fellow soldiers were absolutely
conclusive.
In 1872 Payne was nominated by
his party for state senator, but the district was
overwhelmingly Republican and he was of course defeated.
But he made a remarkable canvass, running largely
ahead of his ticket. One township gave him every vote
with the exception of three, and the township in which
he lived gave him a solid vote of 366. After this
he spent some time in New Mexico and Colorado in the
service of the government, and with his parents in
Indiana. He was for a considerable period an officer
of the United States house of representatives, concluding
his duties as assistant doorkeeper in the winter of
1879, soon after which he returned to Kansas.
As his military and civil experience
was largely on the frontier, and his associations
among the hardy pioneers of our civilization, it was
but natural that he should become an enthusiastic
advocate of the homestead principle, and that he should
devote his energies to the march of empire into all
parts of our public domain. His observations at Washington
were invaluable. There he obtained facts relating
to the conditions existing in the Indian Territory
he could not otherwise have obtained. He became convinced
that Oklahoma was in reality a part of the public
domain, and he at once addressed himself to the work
of covering it with homestead settlers with all the
ardor of his nature. The earnestness of his labor
from the time he commenced the Oklahoma movement to
the day of his death; the abuse heaped upon him by
a subsidized press, arrogant military officials and
by dishonest public officials, and the constant misinterpretation
of all the points of the controversy, are a part of
the history of the time, and would fill a volume to
recount.
A little more than sixteen years old,
Oklahoma is about to enter the Union as a component
part of our confederated system of government. From
a condition of vassalage, with all her interests dependent
and neglected, she will soon emerge into an invigorating
atmosphere where taxation representation will go hand
in hand, when local rights and local pride will not
be emasculated and crushed by the selfishness and
greed of federal rule, and when the multiplex institutions
of one wonderful civilization, so essential to the
public prosperity, will be established by our own
voice and controlled by our own people. As sure as
the green grass will spring up in the returning spring,
as sure as the waters flow down from the mountains
to the sea, so sure the dreams of Payne and Couch
and their comrades will be realized in the full fruition
of the state of Oklahoma. And when the temporary prejudices
of the hour have passed away the impartial historian
will tell the story of their unselfish deeds—of
their fidelity to duty—and future generations
will rise up and call them blessed.—(From Daily
Oklahoman, May 7, 1905.)
3One of the interesting documents
connected with Payne's invasion is the first
proclamation he issued to his followers: Headquarters
of the southwest, Wichita, Kas., Jan. 1, 1880.—It
is not generally known that there is some fourteen
millions of acres of land in Indian Territory belonging
to the United States. This immense domain is public
land, the property of the United States, and is open
to settlement. A reference to the accompanying letter
of Colonel Boudinot, himself a Cherokee Indian,
explains the status of these lands, and from it the
conclusion is irresistible that the people of the
United States have an unqualified right to settle
upon them when they chose to do so.
To effect a settlement upon these lands
is the object of this association, and it proposes
to or-[ganize]
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cause of the Oklahoma colonists was
the cause of the poor man, the laborer, and thus sought
the backing of the labor vote for the measures then
pending in Congress. At that time the Knights of Labor
organization had begun to exert a considerable political
power, and they stood at least partially committed
to the Oklahoma opening, numerous petitions being
sent to Congress in 1886, to urge the opening of the
[Footnotes]
[or]ganize a colony of from 5,000 to 10,000 strong,
and move upon these lands in one body on or at least
one year. Every family or single person about the
15th of March, 1880.
Each family or person joining this colony
must be supplied with means insuring self-support
for should have at least one team, a wagon, the necessary
agricultural implements, seeds and so forth, to at
least the value of $500. Single men without this amount
accompanying the colony must go as employees of members
of the colony at a stated sum, and shall contract
to work at least six months. Brick makers, carpenters
and other artisans and mechanics are respectfully
requested to join us. Those intending to join the
colony will know what is required in a new country,
and we would advise them to purchase their supplies
at home before leaving. However, on this point they
can exercise their own judgment. Every colonist should
take a full supply of garden and other seeds, as they
go to a country where to plant is to insure a harvest.
When the colony shall have come together,
they will perfect their organization by the election
of a president, a board of directors and such other
officers as they may deem proper to constitute a law-making
power until we shall be able to secure the proper
national legislation. In the choice of these officers
and the perfection of the organization each member
of the colony will have a voice and vote.
No intoxicating liquors of any kind will
be allowed in the colony and no camp followers or
hangers on or idlers will be allowed to accompany
the colony under any pretext whatever. Our laws will
be stringent for the preservation of order and good
government, and there will be no tardiness in their
execution.
The colony will take with it a daily
paper, school teachers, etc., and within three days
after reaching the place of destination will have
schools in full operation. It will start with all
the necessary adjuncts of civilization and be fully
prepared to maintain them.
A few words regarding the land in question
will not be out of place here. There is no finer body
of country in the United States. It is well watered,
well timbered, abounds in coal and minerals; the Wichita
mountains are said to contain gold and silver. For
all agricultural purposes, stock, grain, cotton, tobacco
and fruit raising it cannot be excelled by any other
section of the country between the Atlantic and the
Pacific. The climate is nearly like that of California,
neither too cold in the winter, nor too hot in the
summer. It is the only part of the public domain now
open and within reach of the people this side of the
Rocky mountains, worth occupying. All the best lands
in Kansas and Nebraska have been taken up and in Colorado
no farming can be carried on successfully save by
the costly system of irrigation. The land problem
is solved, the buffalo is gone, and the Indian must
be civilized. The latter feat can only be accomplished
by surrounding him with civilized communities that
will respect his rights and teach him the best ways
of the white man.
In his last message President Hayes
called the attention of Congress to the situation
of these lands and intimated that if an effort was
made by the people to enter upon them the government
would be powerless to prevent it without further legislation
on the part of Congress. In the present temper of
Congress and the country that legislation will not
be obtained and therefore no fear need be entertained
that the government will prevent the occupancy of
these lands by a colony of any respectable number.
4The War Chief was
first established at Wichita, Kansas, in the year
1883, edited by A. W. Harris, and remained
there until about April 20th, when it was removed
to Geuda Springs, Kansas, remaining under the editorial
management of Harris. The Oklahoma War Chief
was then taken to Arkansas City, Kansas, and edited
by W. F. Gordon, May, 1884. From Arkansas City
it was moved to Rock Falls, due south of Hunnewell,
Kansas on the Cherokee Strip, where it remained under
the management of Col. J. B. Cooper, until
August 7th, when, by command of General Hatch,
the colony, press and all, was captured and taken
with the prisoners to Muskogee. After this the colony
purchased another press, and published the Oklahoma
War Chief at South Haven, Kansas, where Charles
Branscome edited it for a while, the turned it
over to W. F. Gordon, who published and edited
it until Payne's death, on the 27th day of
November, 1884, soon after which it was removed to
Arkansas City, Kansas. The name War Chief was
then dropped, and it remained under the ownership
of S. J. Zerger until purchased by Smith
& Son, June 11, 1885, who, removing it to
Caldwell, Kansas, the same week, on the regular
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territory. No means were left untried
to accomplish the end sought, and against a determined
administration opposed by the powerful cattle interest,
and defying the armed soldiers sent to eject him,
Payne persisted in his designs and again and
again entered the forbidden country. He was indomitable
to the end of his life. And yet he was not a lone
fighter. Powerful influences at Washington were supporting
his every move, and undoubtedly it was this assurance
that made him dare the military and that prevented
troops from executing the full authority of their
orders upon him. A strong public opinion upheld him,
and in addition to this the laws applicable to his
case lacked a severity of penalty sufficient to deter
him permanently from his undertaking.
The insufficiency of existing laws relating
to intruders and a demand for immediate authority
to remedy the situation in the Indian lands were the
subject of a considerable portion of the report of
the commissioner of Indian affairs for 1881. The laws
governing intrusion at that time were contained in
the intercourse act of June 30, 1834, and the act
of August 18, 1856, providing that the intruder should
first be removed from the reserve, and on return was
liable to a fine of $1,000. Most of the intruders
being without property that was subject to execution,
the result of prosecution was usually a barren judgment,
after which the defendant was free to renew his attempts.
"A notable illustration of the inadequacy of
the law," said the commissioner, "is found
in the case of the notorious Captain Payne,
of Oklahoma fame, who after repeated attempts at settlement
in the Indian Territory, and removal therefrom by
the military, was finally arrested July 15, 1880,
and taken to Fort Smith, Arkansas, where he was released
on bail to appear at the ensuing November term of
court. At the subsequent May term of said court a
civil suit, in the nature of an action of debt, brought
against Payne in the name of the United States,
to recover the statutory penalty of $1,000, was tried
and judgment rendered against him. It is altogether
improbably that the judgment can now be collected
from Payne, and the result is that he is at large,
organizing another scheme for the invasion of the
territory."
To remedy these defects in the law and
provide an effective instrument for punishing intrusion,
Congress was asked to amend section 2148 of the Revised
Statutes so that the trespassers on Indian lands,
upon conviction of the first offense, should be liable
to a maximum fine of $500 and one year in prison,
and for subsequent offenses, the minimum and maximum
of penalty were $500 to $1,000 fine and one to two
years in prison at hard labor. The bill was submitted
to Congress by message from President Arthur
in February and December, 1883. The subject was before
Congress for several years, the proposed amendment
being referred from the interior department almost
with each annual message. April 24, 1884, a bill to
this purpose passed the senate, but failed to become
a law in that session. Again under the Cleveland
administration the subject was presented by the commissioner
of Indian affairs and Secretary Lamar. The latter,
in December, 1885,
[Footnotes]
publication day, baptized it in its old name, Oklahoma
War Chief, selected by its founder. The paper
was suspended August 12, 1886, in consequence of the
failure of Congress to pass the Oklahoma bill and
lack of support in general. Samuel Crocker
was managing editor in 1885, and in July of that year
was arrested at Caldwell by a deputy United States
marshal for "seditions conspiracy" and "inciting
insurrection and rebellion against the United States
government."
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in referring to the president the draft
of the proposed exclusion law, said: "The embarrassments
under which the executive departments of the government
have labored in the past, and notably during the fiscal
year just closed, and the large expenditures incurred
in expelling intruders from the Oklahoma country and
other Indian lands, have been mainly due to the inadequacy
of appropriate legislation on this subject."
In February, 1886, the senate again passed a measure
in line with the request of the executive department,
but the bill never became a law. Almost up to the
date of the opening of Oklahoma, the exclusion law
was urged upon Congress, President Cleveland recommending
such a bill in a communication to Congress as late
as January, 1888. The detailed movements of Payne
and his followers are describe in a brief of papers
presented to Congress by the War department and in
them the story of Payne's and his followers'
repeated attempts to July, 1885, graphically told.5
[Footnotes]
5April 26, 1879, the president
issued a proclamation warning all evil-disposed persons
who had prepared for an organized settlement upon
lands known as "Indian Territory" west of
the State of Arkansas that they would be speedily
removed thence by the agent, according to law, and
that, if necessary, the military forces of the United
States would be called upon to carry the laws into
proper execution.
May 1, 1879, the general of the army
directed the commanding general, Division of the Missouri,
to instruct the commanding general, Department of
the Missouri, to use all his available troops to execute
the terms of the president's proclamation, using force
only on requisition of, and, when practicable, under
personal supervision of, officers of the Indian bureau,
or of the several agents for the Indian tribes, pursuant
to section 2147-2149 and 2150, Revised Statutes.
May 2, 1879, the general of the army,
in compliance with instructions from the secretary
of war of same date, informed the commanding general,
Division of the Missouri, that the movement to settle
the Indian Territory must be resisted by all the power
of the government, civil and military, and advised
him to order to certain points, indicated by the secretary
of war, small detachments of troops to encamp near
the southern border of Kansas to notify all emigrants
who should pass into the Indian Territory that they
would be acting in violation of law and would be ejected
by force if they persisted. Mounted officers should
also be posted at Coffeyville to caution emigrants
that any attempt to enter and settle in the Territory
would result in violent expulsions, etc. All orders
were to be executed firmly, but with due consideration
to the misguided emigrants, etc.
May 7, 1879, the general of the army
informed the commanding generally, Division of the
Missouri, that emigrants were going into the Indian
country from Baxter Springs, and directed him to promptly
put a stop to any such unlawful intrusion, and to
forcibly eject every emigrant who had gone over the
border.
Under these instructions the emigrants
were met by the troops and turned back without difficulty.
It having become known that preparations were being
made in the early part of 1880 by certain parties
to invade the Indian Territory, the president again
issued a proclamation, under date of February, 1880,
warning all persons against doing so, and notifying
them that no efforts would be spared by the government
to prevent such invasion, and that if necessary the
aid of the military forces of the government would
be invoked to carry out the laws.
February 25, 1880, General Pope,
commanding the Department of the Missouri, requested
instructions as to action to be taken by the military
under the president's proclamation, and as to what
was to be done with intruders arrested, etc.
In reply to the foregoing, General Pope
was furnished for his guidance a copy of the secretary
of war's letter to the general of the army of March
10, 1880, with its inclosures [enclosures], viz.,
letters from the secretary of the interior and commissioner
of Indian affairs, giving specific replies to the
questions asked by him, and which the secretary of
war directed to be carried out. The replies of the
commissioner of Indian affairs were to the effect
that the military authorities should be untrammeled
and free to act as the necessities of the case seem
to require. That the Indian bureau has the exclusive
authority to grant permission to white men to go into
the Indian Territory. That where intruders are arrested
they should at once be removed from the Territory,
as provided by section 2147 Revised Statutes, and
that if they return they are subject to penalty of
$1,000 under section 2148, and should be turned over
to the United States marshal at Fort Smith, to be
proceeded according to law.
All property of such intruders, if of
such a character as to warrant or allow, to be seized
and
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The mantle of Payne
fell upon W. L. Couch, who having rendered
conspicuous service to the cause as a lieutenant,
now assumed the role of leader. The activity of the
Oklahoma colony was continued with little abatement
of enthusiasm until about
[Footnotes]
turned over to the United States marshal, otherwise
it should be destroyed. May 19th, 1880, General Pope
reported the capture of Capt. D. L. Payne and
band of thirteen intruders into the Indian Territory,
and asked what should be done about them.
June 3, he was informed of the decision
of the secretary of war that, under the law, the intruders
should be taken outside of the Indian Territory and
there discharged, with warning not to return.
July 16, 1880, General Pope reported
capture of D. L. Payne and party of 22 men,
and asked if he should turn this gang over to the
United States marshal at Fort Smith for trial, etc.
Thereupon, July 31, General Pope
was furnished a copy of interior department letter
of July 28, requesting that those of the parties arrested
who had been previously removed from the Indian Territory
be turned over to the civil authorities under section
2148 Revised Statutes. Under these instructions the
lieutenant general reported August 7 that Payne
and party left Caldwell, Kansas, on that day for Fort
Smith and that those men captured with Payne
who did not belong to the first party of invasion
had been released.
December 8, 1880, General Pope
reported that a purpose existed to invade the Indian
Territory, and that many had already been arrested,
and requested definite instructions, in case of resistance
by the parties to what extent violent measures might
be used; if shooting is the order of the department.
December 11, General Sheridan
reported that Payne and his two hundred followers
had moved west of Caldwell and made no attempt to
cross into the Indian Territory, and that the invasion
of the Territory might be considered at an end.
May 18, 1882, a copy of interior department
letter of May 16, stating that Agent Miles
reports Payne with a large party on the march
to Oklahoma, was sent to General Sheridan to
order the arrest of any trespassers and to report
action.
May 23, 1882, General Pope reported
capture of Payne and twenty-nine followers,
trying to get into Oklahoma. In referring this to
the secretary of war, the general of the army recommended
that Payne be held a prisoner in the guard-house
at Fort Sill, and made to work like other prisoners.
On May 27, General Sheridan reported
that Payne and party were about to reach the
Kansas line, and that he had instructed General Pope
to hold Payne a prisoner, subject to instructions
from Washington, and set all others free, but General
Pope had released Payne before receipt
of the telegram instructing otherwise.
General Pope, in letter of July
15, 1882, stated that Payne and his followers
would no doubt again attempt to occupy the Oklahoma
district and being arrested and released without consequences
to himself, would continue to repeat this, and that
these transactions appeared in the nature of a farce,
the government being powerless to punish the offenders,
etc. Also that Payne had brought suit against
him for $25,000 damages for his action as department
commander. In forwarding this communication General
Sheridan said he hoped some efficient remedy
might be adopted to terminate the matter.
The general of the army, in submitting
this communication to the secretary of war, advised
that the president order Payne and his followers
to be excluded by military force, and thus end the
farce.
August 28, General Sheridan reports
capture of Payne, with six followers; and that
they were disarmed and en route to Fort Reno as prisoners.
The general of the army again recommended
their imprisonment in the guardhouse, to be held until
some lawful way of punishing them could be discovered,
but the secretary of war returned the communication
indorsed [endorsed], that the annoyance was fully
understood, but it would not be prudent to punish
them by imprisonment when the law had failed to provide
such punishment.
At the request of the interior department,
General Pope was instructed to send the prisoners
to the United States marshal at Fort Smith without
delay.
September 30, 1882, the commanding officer
at Fort Reno reported that the prisoners had been
turned over to the United States marshal as directed,
who discharged them and summoned them to appear at
the next term of court. Also states that Payne's
followers boasted that as soon as released they would
again invade the Territory. In submitting this to
the secretary of war, the general of the army said
it was now for the president to determine whether
the treaties are to be defied by a bold adventurer
like Payne, and asked instructions for the
protection of the military authorities who have been
compelled to incur serious liabilities in the enactment
of the varied farce.
During the year of 1883, Payne
and his parties were persistent in their efforts to
enter and occupy the Oklahoma district, but were readily
and promptly ejected by the troops.
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1887, at which time the renewed determination
of the government to eject the cattlemen and the prospect
of an early law opening the territory to settlement
caused a respite in the invading movements, though
the colony was still maintained and the
[Footnotes]
May 15, 1884, a preliminary report of
information obtained at post of Fort Reno concerning
the intrusion of "boomers" into Indian Territory
was forwarded from the Department of the Missouri
with suggestions as to best means of suppressing the
same, etc.
Early in June, 1884, the secretary of
war was advised by the secretary of the interior of
the existence of wire fences in that part of the Indian
Territory called Oklahoma, and in consequence thereof
the secretary directed that orders be given to the
commanding general of the Department of Missouri to
take immediate steps to remove all such wire fences.
This order was promptly communicated through military
channels to Colonel Hatch, commanding the military
district of Oklahoma, and under date of August 22,
1884, Colonel Hatch reported that the thirty
days' notice served upon parties who had erected fences
in Oklahoma to remove them having expired, and some
not having obeyed the order, those fences not already
removed would be removed at once; and in the absence
of any further report it is supposed that all fences
have been removed.
In his official report Colonel Hatch
made the following statement:
"Payne and the men with him
who are engaged in locating claims will continue to
agitate the opening of this Territory in the same
manner as before; not that they really desire to have
the country settled, but that they may obtain money
from the ignorant people deluded into the purchase
of claims and town lots, and from the fees paid on
joining what the term the 'Oklahoma Colony'. The payments
for surveys, claims, town lots and initiation fees
must in the aggregate have already amounted to the
neighborhood of $100,000, all of which has been divided
among the leaders. Should the country be open to settlers
there would be an end to their profits; hence, in
my opinion, Payne and his immediate associates
do not want it declared open."
June 11, 1884, the commanding general,
Department of the Missouri, was, by direction of the
secretary of war, instructed to take immediate steps,
in accordance with section 2147, Revised Statutes,
to remove any intruders from the district of Oklahoma,
and to require them to leave the limits of the Indian
Territory, etc.
July 30, 1884, the war department informed
the president of the condition of affairs in the Indian
Territory in connection with intruders. Whereupon
the president, August 2, 1884, directed the secretary
of war to employ the military forces to remove the
intruders.
August 4, 1884, the commanding general,
Division of the Missouri, was directed to act accordingly.
July 31, 1884, the president's proclamation
of July 1, 1884, was published to the army in general
orders, warning all persons against any attempts to
remove to or settle upon lands known as the Oklahoma
lands in the Indian Territory, and notifying all such
persons who so offend that they will be speedily and
forcibly removed therefrom.
August 5, 1884, the assistant adjutant-general,
Division of the Missouri, reports that necessary instructions
for removal of intruders have been given.
Same date, the interior department requested
that telegraphic instructions be given to Colonel
Hatch, commanding district of Oklahoma, to
move against Payne and the intruders into Indian
Territory.
July 31, 1884, the commanding general,
Department of the Missouri, inclosed [enclosed] copies
of reports relative to removal of intruders, and stated
that "troops are now ready to enforce orders,"
and requested instructions as to where prisoners should
be sent, and whether cattlemen should be permitted
to remain in the Indian country.
August 5, 1884, Lieut. W. L. Finley,
Ninth Cavalry, acting assistant adjutant-general,
district of Oklahoma, forwards copy of instructions
to Capt. F. T. Bennett, Ninth Cavalry, relative
to removal of intruders from the Indian Territory.
August 21, 1884, the commanding general,
Division of the Missouri, forwards report of commanding
general, Department of the Missouri, indorsing [endorsing]
papers in connection with removal of intruders from
the Indian Territory, who states that it is probable
that the District of Oklahoma can be discontinued
in September, except perhaps a troop of cavalry.
August 26, 1884, a report of Capt. P.
Cusack, Ninth Cavalry, was forwarded from Division
of the Missouri reporting assistance rendered by his
command to representative of the Indian agent in arresting
intruders found in Cherokee country.
Under date of August 27, 1884, the Missouri
Division forwards a copy of report of Capt. Francis
Moore, Ninth Cavalry, of his action in assisting
the representatives of the Indian agent to remove
intruders from Rock Falls, known as the headquarters
of Payne's Oklahoma colony.
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194
"boomers" remained about the
Kansas line until the opening day.
In the meantime, about the time Couch
succeeded Payne, the subject of Oklahoma had
largely engaged the attention of Congress, and by
section 8 of the Indian ap[propriation]
[Footnotes]
August 27, 1884, commanding general,
Division of the Missouri, forwards letter from commanding
officer, District of Oklahoma, reporting that the
15th of September would probably complete the removal
of all intruders. General Schofield at the
same time requested instructions as to treatment of
unauthorized persons who may enter into the Indian
Territory.
August 27, 1884, the interior department,
in acknowledging receipt of war department letter
conveying above information, states that in surrendering
the parties for trial the military can only be governed
by act of January 6, 1883, and jurisdiction of court
will depend in what part of Territory the arrest was
made.
August 29, 1884, the department of justice
in reply to war department letter of the same date,
relative to intruders arrested upon Indian Territory
suing out writs of habeas corpus at Fort Smith, states
that if state authority issue a writ for one in custody
it is the duty of the custodian to make due return,
but in any event to continue to execute the authority
under which he holds the prisoner, even to the extent
of not taking or suffering him to be taken before
the state authority, etc.
August 30, 1884, the department of justice,
in reply to war department letter respecting habeas
corpus writs for trespassers upon Indian lands, states
that either the United States courts in Kansas or
Arkansas are competent to give the law as to their
jurisdiction until question shall have been carried
to supreme court.
September 3, 1884, the commanding general,
Division of the Missouri, forwards copy of letter
from commanding general, district of Oklahoma, who
reports troops under Captain Carroll, Ninth
Cavalry, engaged in removing fences inclosing [enclosing]
pastures in Oklahoma proper, where orders to remove
were not complied with, etc.
Under date of September 17, 1884, the
commanding general, Division of the Missouri, forwards
report of Colonel Hatch, that nearly all intruders
have been removed from the Cherokee Strip, and that
by September 15 he expects to have Oklahoma clear
of all intruders and fences. Colonel Hatch
also suggests places for camps in his district required
to prevent intrusion of unauthorized persons during
the winter, etc.
On the 26th of September, 1884, a letter
was written to the commanding general, Division of
the Missouri, approving establishment of camps, etc.
September 19, a letter was addressed
to the secretary of the interior by the war department
for suggestions as to treatment of intruders and aid
of interior department in preventing organized movements
into the Indian Territory.
September 18, 1884, the commanding general,
Division of the Missouri, telegraphs that Payne
and other prisoners were turned over to the United
States marshal at Fort Smith, Ark., September 8.
September 17, 1884, General Augur
telegraphed that Payne and his followers would
probably enter the Indian Territory again on the following
day, and, in case of the arrest on the Cherokee Strip,
requesting instructions as to whom they should be
turned over to. Whereupon, by direction of the secretary
of war, a map showing jurisdiction of the United States
district courts was forwarded to commanding general,
Division of the Missouri, with instructions to turn
over the intruders when arrested to the United States
court of the district of which the locality where
the offense was committed is a part.
Under date of September 11, 1884, the
governor of Kansas indorsed [endorsed] to the president
copy of petition received by him from Capt. D.
L. Payne and seven others in custody of military
authorities for attempting to settle upon Indian lands,
and asks that these parties be turned over to the
civil authorities at Wichita, Kans., for trial.
The secretary of war, in letter of September
20, replied, "I am officially informed that Payne
and the other persons were on the 8th of September
(three days before the date of your letter) turned
over by the military authorities to the United States
marshal at Fort Smith, Ark., and have not since been
in military custody"; also that he was advised
of another contemplated intrusion by Payne
and his followers on the 18th, and that instructions
had been requested as to the proper place of their
delivery upon again being arrested, and that the department
will endeavor to prepare such instructions to the
military authorities as will insure the turning over
of the offenders to the proper court for punishment.
On the 9th of October, 1884, the commanding
general, Division of the Missouri, forwarded a report
of Colonel Hatch to the effect that Payne
party proposes to re-enter Oklahoma about October
9th, and that he thought it best to retain Troop K,
Ninth Cavalry, until he could send a troop to relieve
it at Camp Russell, I. T.
Instructions were given by the commanding
general, Department of the Missouri, to pick up party
going to select town site, etc.
October 12, 1884, Colonel Hatch
requested that
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195
[ap]propriation act, approved March
3, 1885 (23 Stats. at Large, p. 384), the president
was "authorized to open negotiations with the
Creeks, Seminoles and Cherokees for the purpose of
opening to settlement under the homestead laws the
unassigned lands
[Footnotes]
an agent of the Indian Department be stationed near
the camp of the troops at Caldwell, Kans., for the
purpose of removal of intruders; and if this could
not be done that some one be appointed to act in that
capacity.
The commanding general, Division of the
Missouri, forwards a copy of a letter from Colonel
Hatch reporting that on the 20th instant he
came up with Lieut. H. H. Wright, Ninth Cavalry,
who had under guard a party of intruders, 24 wagons
in all, who are being escorted out of the Territory.
November 13, commanding general, Division
of the Missouri, forwards letter from Colonel Hatch
reporting discontinuance of district of Oklahoma,
and disposition of stores and supplies, and that he
is about to proceed to Fort Riley, Kans.
November 14, the interior department,
in acknowledging receipt of letter relative to employment
of an Indian agent to co-operate with troops in the
Cherokee Strip, says there are no funds available
for such purposes.
December 27, the commanding general,
Department of the Missouri, telegraphs that a large
body of armed men have again intruded into the Indian
Territory and refused to surrender to the detachment
sent to intercept them, and that he has given instructions
to the commanding general, Department of the Missouri,
to send a sufficient force to expel them. Asks at
the same time if any other action is desired by the
war department.
On the same day a telegram was sent to
General Schofield acknowledging the receipt
of his dispatch and informing him that the secretary
of war approves his action.
December 30, 1884, a dispatch was received
from commanding general, Division of the Missouri,
stating that General Augur desires the Indian
Department to send an agent to designate intruders,
and to take charge of property seized. Also asks whether
leaders (hunters) shall be arrested and turned over
to the civil authorities; his present orders being
limited to expelling the intruders.
December 31, a copy of the report of
Maj. Thomas Dewees, Ninth Cavalry, commanding
Fort Reno, I. T., was received giving number of arrests
made and parties escorted out of the district of Oklahoma,
by Troop I, Ninth Cavalry, October 18 and 20, and
December 1, 2, 3, 4 and 7.
January 5, 1885, the commanding general,
Division of the Missouri, forwards a report of Colonel
Hatch of affairs in Indian Territory in connection
with movement of troops ordered there to eject the
intruders, which places the number of intruders now
there at four hundred, with very few women and children,
who are mostly living in small excavations in sand
hills on left bank of Cimarron river, near Cedar Creek.
These people, Colonel Hatch says, are there
generally upon advice of leaders or lawyers, who inform
them that they have a lawful right to resist by arms
any attempt on the part of the government to remove
them, etc.
January 7, a copy of the report of Lieut.
M. W. Day, Ninth Cavalry, was received from
headquarters Division of the Missouri, from which
it appears that when he arrived at Stillwater with
his detachment of troops (where a large party of the
intruders were encamped) and attempted to arrest Mr.
Couch, their leader, he was confronted by about
200 men armed with double-barreled shotguns and Winchester
rifles. They refused to submit to arrest without a
resort to arms, though LieutenantDay had about
30 men on a skirmish line. As the intruders were densely
massed, Lieutenant Day hesitated to give the
command to fire, as the slaughter would no doubt have
been great.
Lieutenant Day further states
that he has done all he can to make the arrest without
resorting to arms, and requests to be informed if
he is to treat this body of men as insurgents, and
after calling upon them to give up their arms and
submit to arrest to open fire upon them. If he is
compelled to arrest them without firing on them, he
will require reinforcements.
January 13, the lieutenant-general telegraphed
to General Augur requesting him immediately
to send all official information in his possession
regarding the attitude of the invaders towards the
troops in the Indian Territory, the exact number of
troops sent to carry out the provisions of the president's
proclamation, and other orders directing the removal
of the intruders. Also requested General Augur
to communicate with Colonel Hatch by telegraph
requiring full particulars, and to send him, if necessary,
additional troops to accomplish the purpose in view.
January 14, 1885, General Augur informed
Lieutenant-General Sheridan by telegraph that Colonel
Hatch has orders to remove the intruders from Indian
Territory, without violence, if possible. He will
have seven companies of cavalry in hand and one company
of infantry to occupy Camp Russell, 9 miles from the
camp of the intruders. General Augur believes this
force sufficient for present emergency. The intruders
num-[ber]
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196
in said Indian Territory ceded by them
respectively to the United States by the several treaties
of August eleventh, eighteen hundred and sixty-six,
March twenty-first, eighteen hundred and sixty-six,
and July nineteenth, eighteen hundred and sixty-six;
and for that purpose the sum of five thousand dollars,
or so much thereof as may be necessary, be, and the
same is hereby, appropriated out of any
[Footnotes]
[num]ber about 250 men and a few women. Couch,
their leader, is reported to be a fanatic who believes
himself in the right and is willing to risk a collision,
as likely to invite public sympathy and compel favorable
congressional action. Colonel Hatch thinks
Couch will resist arrest and there will be
a collision.
January 15, 1885, General Augur
telegraphs that Colonel Hatch is beyond reach
of telegraph; that intruders claim to be advised by
lawyers and some members of Congress to resist removal;
that Colonel Hatch will have about 350 cavalry,
and that the troops from Fort Reno were delayed by
a severe snow storm.
On the 16th of January General Augur,
in reply to a telegram of the same date on the subject,
reports that Camp Russell is situated on the Cimarron,
nearly opposite the mouth of the Ephraim creek, and
the principal camp of the intruders is reported to
be about 15 miles northeast of Camp Russell in Stillwater.
January 10, General Augur forwards
copy of a letter from Col. Edward Hatch, Ninth
Cavalry, who invites attention to the necessity of
urging congressional action in regard to lands in
Oklahoma, which he says should either be declared
open for settlement or laws should be enacted enjoining
penalties for invasion of the Territory; else the
government will be compelled to keep a large force
at great expense in Oklahoma, to guard every thoroughfare,
river and water-course during the coming year, as,
granting that the force now moving to expel the armed
intruders is ample to enforce the orders for their
removal, it will be entirely insufficient to arrest
the movement sure to take place in the spring from
the hordes coming into Kansas, Missouri and Arkansas;
an estimate from reliable sources placing the number
who will attempt the settlement of Indian lands in
the Territory at not less than twenty thousand people,
etc.
This report is also accompanied by a
detailed report from Lieutenant Day, Ninth
Cavalry, showing his attempts to induce a peaceable
surrender of the intruders located at Stillwater,
Ind. T.
January 19, General Augur reports
by telegraph the whereabouts of Colonel Hatch
and the troops in the Indian Territory; that the number
of boomers has increased to 375 and is constantly
increasing, and that there is no doubt they will fight.
Should this be the case and they fire upon the troops,
desires to know whether they are to be treated as
public enemies and to be captured or killed, so that
there can be no chance of a misunderstanding as to
the orders on this point.
January 20, the lieutenant-general, in
accordance with instructions of the secretary of war,
informed General Augur, by telegraph, that
the president's orders for the removal from the Indian
Territory of the intruders therein were to be enforced.
That it was hoped that this might be done without
an armed conflict, but that the responsibility for
any bloodshed must rest upon those who do not accept
the warning of the proclamation of the president of
July 1, 1884, and attempt with arms to resist the
troops ordered to compel their removal. Also, that
the military force should be increased, so that all
intruders might see the hopelessness of resistance.
Following the communication of these instructions,
the lieutenant-general directed General Augur
to immediately reinforce Colonel Hatch by the
remaining companies of the Ninth Cavalry, and also
to send him reinforcements from the Tenth, Twentieth,
and Twenty-second Regiments of Infantry until the
force he has now in hand shall be increased by 300
additional men.
January 21, General Augur acknowledges
receipt of above instructions (of which he has furnished
Colonel Hatch a copy), and reports that the
additional troops will be sent to Caldwell as soon
as transportation and supplies are ready for them,
but that on account of the severe weather and snow
it will be difficult to get troops from Elliott, and
supplies. Desires to know if he can send troops from
Fort Leavenworth providing it will not interfere with
the school.
By telegram of January 21 from this office,
General Augur was authorized to send troops
from Fort Leavenworth, providing it did not interfere
with the school.
July 23, the commanding general, Division
of the Missouri, repeats dispatch for the commanding
general, Department of the Missouri, communicating
information received from Colonel Hatch that
Couch, the leader of the boomers, has notified
him that they will fight; that their strength is 400,
and that the United States troops are moving into
position to cut off supplies and stop new arrivals.
(Sen. Exec. Doc. No. 50, 48th Cong.,
2d Sess.)
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197
money in the treasury not otherwise
appropriated; his action hereunder to be reported
Congress."
Notwithstanding this legislation the
colonists still maintained a defiant attitude in camp
at Arkansas City, and threatened to re-enter the Territory
in largely increased numbers at an early date. An
impression seemed to prevail amongst them that the
proclamation issued by President Arthur, July
1, 1884, and his subsequent order of July 31, 1884,
directing the employment of the military in enforcing
the same, had become inoperative with the close of
his administration. To counteract this idea, President
Cleveland, on the 13th of March, 1885, issued
a proclamation substantially to the same effect as
those of his predecessors, declaring the determination
of the government to maintain the integrity of the
treaties entered into with the Indian tribes, and
to enforce obedience to the laws of the United States.
The immediate effect of this proclamation,
as reported by the commanding general, was to reduce
the numbers of the Couch colony, many of whom quietly
dispersed and returned to their homes. A large number,
however, estimated at from six to eight hundred men,
all well armed, still remained in camp, who openly
avowed their intention to disregard the proclamation
and force their way into the Territory. Meetings of
the colonists were held, and resolutions passed expressive
of their surprise and dissatisfaction at the course
taken by the government, and demanding of the president
an explanation of the laws and treaties governing
the Oklahoma lands under which it was claimed they
were still Indian lands. A delegation in behalf of
the colonists waited on the president and secretary
of the interior, with a view to securing some modification
of the proclamation whereby they might be permitted
temporarily to enter the Territory pending the negotiations
authorized by Congress, but they were informed that
under no circumstances would any settlements be permitted
in the Indian Territory until the negotiations with
the Indian tribes had been had and authority from
Congress obtained.
Upon the return of the delegation to
Arkansas City the colonists (April 23) passed resolutions
agreeing to await the result of the negotiations,
and adjourned to meet at the call of their leader.
Those having homes returned to them, about tow hundred
and fifty remaining in camp, near Caldwell, on the
Kansas border. The report of the Indian commissioner
for 1885 with reference to the colonists concluded:
"Recent advices received in this department indicating
an intention on the part of the colonists to disband
and peacefully await further official action in reference
to the lands in question, the United States district
attorney has been instructed by the Department of
Justice to dismiss the suits before referred to if
he is satisfied they have broken camp and retired
from the border and relinquished their project of
invasion."
In the latter part of October and beginning
of November, 1885 (Report of commissioner of Indian
affairs, 1886, p.XLV) a large body of intruders, under
the leadership of Couch, again entered the Territory,
with the avowed object of settlement on the coveted
lands, camping on the banks of the Canadian, near
Council Grove, whence they were again removed across
the line by the military, under the president's proclamation
of March 13, 1885.
The president having on July 23, 1885,
issued a proclamation declaring the leases made by
the Cheyenne and Arapahoe In-[dians]
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[In]dians void, and directing the removal
of the alleged lessees, their cattle, and their employes
[employees] from the reservation within a specified
time, thousands of cattle were driven to graze on
the Oklahoma lands. Upon the recommendation of the
interior department (December 3, 1885) measures were
at once taken by the war department which resulted
in the supposed clearance of all cattle and intruders
from Oklahoma. (See Sidney Clarke's statements
in previous chapter.) Subsequently, however, in the
early spring of the present year, it was ascertained
that there were still large numbers of cattle on the
Oklahoma lands, and these also were removed by the
military.
In the summer of 1885 Attorney General
Garland, at the request of President Cleveland,
delivered an opinion affecting the cattle leases in
Indian Territory. This opinion had an important bearing
on the settlement of the immediate issues between
the various interests in contention over the land
of Oklahoma. The following extracts from the opinion
will indicate its scope.
"Our government has ever claimed
the right and . . . . its settled policy has been
to regulate and control the alienation or other disposition
by the Indian nations or tribes of their lands."
An act of the confederation congress in 1783 forbade
all persons "from making settlements on lands
inhabited by the Indians without the limits or jurisdiction
of any particular state." By act of Congress
July 22, 1790, no lands could be sold by Indians within
the United States except under "some public treaty
held under the authority of the United States."
These restrictions were reinforced by subsequent acts
dated March 1, 1793; May 19, 1796; March 3, 1799,
and March 30, 1802.
The above provisions applied to individual
Indians as well as to tribes or nations, but by act
of June 30, 1834, it was limited to the tribe or nation.
Section 2116 of the revised statutes in force at the
time of Attorney-General Garland's ruling read:
"No purchase, grant, lease or other conveyance
of lands or any title or claim thereto from an Indian
nation or tribe of Indians shall be of any validity
in law or equity unless the same be made treaty or
the constitution."
The attorney general held that this law
was comprehensive, that whether the Indian title was
in fee simple or right of occupation merely, was immaterial.
Therefore a lease of land for grazing purposes was
subject to the same statute and "one who enters
with cattle or other livestock upon an Indian reservation
under a lease of that description made in violation
of the statutes is an intruder and may be removed."
Mr. Garland then cites the act of Congress,
February 19, 1875, authorizing the Seneca nation to
lease certain lands in New York state, as proof that
some such legislative action is necessary to confirm
all leases, and, without it, the leases are not valid.
This opinion was at once interpreted
by the Oklahoma boomers as favorable to their cause,
in that it denied the validity of the cattlemen's
leases, although it is difficult to conceive how they
could infer that, for this reason, the right of the
intending settlers was in any way strengthened, since
the attorney general declared explicitly that all
intruders within the meaning of existing statutes
could claim no protection nor permanence of occupation
unless a specific law authorized such intrusion of
an Indian reservation.
When the act of March 3, 1885, was passed
by Congress authorizing the president to open negotiations
with the Creeks, Seminoles and Cherokees for the purpose
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of opening to settlement, under the
homestead laws, the unassigned portions of Oklahoma
and the Cherokee Strip, an Indian international convention
was called by Hon. D. W. Bushyhead. It met June 15,
1885, at Eufaula, with the following delegates present:
Chocktaws—Delegates: Ed. McCurtain, chief
of Choctaws; A. Carney, Julius Folsom, Wesley Anderson,
Meah-hut-tubbee, J. S Standley.
Chickasaws—Delegates: Geo. W. Harkins, B.
W. Carter.
Cherokees—Delegates: R. Bunck, W. P. Ross,
L. B. Bell, Frog Sixkiller, S. H. Benge, Daniel Redbird,
Adam Feelin, John Sevier.
Creeks—Delegates: Ward Coachman, G. W. Grayson,
Jno. R. Moore, Wm. McCombs, Coweta Micco, Efa Emarthlar.
Seminoles—Delegates: John Jumper, James Factor,
Thos. McGeisey.
The object of the convention, after organization,
was shown by Mr. Bushyhead's letter, to wit:
Tahlequah, June 12,
1885.
To Messrs. R. Bulnch,
Wm. P. Ross, L. B. Bell,
Frog Sixkiller, S. H. Benge,
D. Redbird,
Adam Feelin, and John Sevier.
Gentlemen:—As already advised, you have been
appointed to represent the Cherokee Nation at a conference
to be held at Eufaula, Muscogee Nation, I. T., on
the 15th instant, between the representatives of the
Muscogee, Seminole, Choctaw, Chickasaw and Cherokee
nations concerning matters of importance pertaining
to their general interests.
By the act of Congress approved March
3, 1885, commonly known as the "Indian appropriation
bill," it was provided "that the president
is hereby authorized to open negotiations with the
Creeks, Seminoles, and Cherokees for the purpose of
opening to settlement under the homestead laws the
unassigned lands in said Indian Territory ceded by
them respectively to the United States by the several
treaties of August 11, 1866, March 21, 1866, and July
19, 1866." In view of this legislation the chief
of the Seminoles invited a | | | |
