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

184

185

[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

186

   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

187

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

188

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]

189

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

190

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."

191

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

192

   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.

193

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.

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

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]

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.)

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]

198

[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

199

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 meeting of the parties in interest for the purpose of an interchange of views on the question thus presented, and as the result the conference to which you have been appointed has been called at Eufaula.
   You will readily perceive that the proposal to open to settlement, under the homestead laws of the United States, the lands set apart by the Creeks and Cherokees for the settlement of friendly Indians presents questions of the gravest import, not only to the Seminoles, Creeks and Cherokees, but to all Indians now settled within the limits of the Indian Territory, and which calls for their most serious consideration and harmonious action. They involve not only a cession of large tracts of valuable lands, to which, in the case of the Cherokee Nation, the title remains unimpaired, but a thorough, sweeping, and radical change in the political relations between the Indians and the government of the United States.
   To the consideration of this subject, and of all points of interest springing therefrom, you are expected to give your serious and mature consideration, and endeavor to agree upon some common ground of action upon which the members of the conference can stand united in sentiment and effort to meet the issues to be presented to them. What that ground shall be is left to your wisdom to determine; but I am convinced that the sentiment and conviction of the people will regard any movement looking to a cession of our lands for the purpose authorized by Congress, or the disturbance of the integrity of the Indian Territory, or the surrender of any rights of soil or self-government now enjoyed under the guarantees of their treaties with the United States, with disapproval and opposition.
   I suggest, therefore, that your efforts in this conference be addressed directly to obtaining such action as may seem best calculated to preserve our rights of soil and self-government under our treaties, to strengthen the guarantees of our Indian brothers, to perpetuate the existence of the Indian Territory unimpaired under the laws and treaties of the United States, and to unite more intimately the relations now existing between the Indian people, so as to secure more united and harmonious councils in the advancement of their common interests and the more efficient enforcement of law.
   I need hardly to add that any measure adopted or policy agreed upon by the conference will require to be reported in full to the department for its approval and reference to the national council for final action.

Very respectfully,
D. W. Bushyhead,
Principal Chief.

   The next day, after consultation, the following resolutions, with one dissenting voice, were adopted, to wit:

 

200

    . . . . Whereas, The opening of said lands to homestead settlement would be in conflict with the uniform policy of the government in reference to the Indians of this Territory, and its solemn pledges that the lands of the Indian Territory shall not, in all time to come, be included within the limits of any state or territory without their consent; and
   Whereas, The opening of said lands would necessarily involve the establishment of a Territory of the United States within the limits of the Indian Territory in violation of said treaties; therefore, be it
   Resolved, By the representatives of the Creeks, Seminoles, Cherokees, Choctaws and Chickasaws in convention assembled, That in their opinion the negotiations authorized by the act of Congress of March 3, 1885, are incompatible with the rights, interests, and future security of the people of the Indian Territory, and should not be entered into; and to secure the integrity of the Territory as Indian country, and the interest of the several tribes therein, we hereby pledge ourselves and our respective governments.

   The sentiment of the Cherokee Nation respecting the establishment of a territorial government over the outlet or the inclusion of that portion of their country in the proposed Oklahoma was expressed in the instruction to the Cherokee delegation sent to Washington in 1872. By act of the national council this delegation was instructed "to protest against and oppose by all proper means the passage through Congress of any bill for the establishment of a territorial government of the United States over the Cherokee country and people, or the adoption of any measure that will interfere in any manner with the right of soil and self-government guaranteed to the Cherokee Nation and people by the provisions of treaties now existing between the United States and the Cherokee Nation."
   Year after year the annual delegation to Washington received as part of its instructions this protest, with only an occasional variation in the wording. As the pressure for the opening of the Indian country became stronger, the instructions became more specific, indicating the course of events that were tending to break down the barriers around the Indian country. Thus, in 1882, besides the above paragraph, the delegates were to "oppose any measure or act that would throw the Cherokee Nation open or expose it to white settlement; and they are further instructed to resist all attempts by bill in Congress to allot lands in severalty . . . and they are further instructed to aid the other nations and smaller tribes in resisting encroachments among them, and in thus introducing disturbing elements among them, thus destroying the security and hindering the progress of the nations and tribes of the Indian Territory."
   In 1888, the Oklahoma question having become acute, the following paragraph was added to the general instructions that had continued for the preceding years: "Whereas the preceding delegation and the published proceedings of Congress have informed the people of the Cherokee Nation and their representatives in national council now convened that a certain "bill" is now pending in the house of representatives entitled 'An act to provide for the organization of the Territory of Oklahoma, and for other purposes,' by which bill it is proposed to create a United States territory so entitled and to include more than one-half of the Cherokee domain within the described limits thereof, and to sell the lands contained in said tract in a manner and at a price and at times fixed in said 'bill': provided, that the Cherokee Nation shall, after the passage by said bill by Congress, signify their assent to the organization of said territory upon the terms set forth. The delegation are authorized and required to convey to Congress and to the president of the United States the unanimous dissent of the national council and the people of the Cherokee Nation to the organization of

201

said territory so far as the organization thereof proposes to affect any part of the domain embraced and described in treaty and patent as conveyed to this nation and which yet belongs to said nation; and further, that they, the Cherokee people, are unanimously opposed to any extinguishment of their rights, jurisdiction, possession and ownership over any portion of their remaining country by the United States government without their consent having first been obtained in accordance with law and treaty."
   During the Oklahoma agitation a plan was proposed to remove the Indians from the reservations created by executive order into the Oklahoma country, thus allowing such reservations to be thrown open to settlement. This was the subject of an extended trip of investigation by Prof. C. C. Painter, representing the Indian Rights Association, and also, unofficially, the president and secretary of the interior. The theory that no treaty stood in the way of opening the executive order reservations, while the Creeks and Seminoles still had treaty rights in Oklahoma, had no valid reasons to support it, reported Prof. Painter. As an instance, the Wichitas lived on a reservation by unratified treaty, and since the treaty had never been ratified by the senate there could be no legal obstacle to their removal. "The fact is," asserts Prof. Painter, "these Indians claim always to have been the owners of this land, not only what they occupy, but a large body occupied in part by the Kiowas and Comanches, etc. . . ." Their title to it has never been extinguished. So there are virtual legal and treaty obligations in the way of this removal fully as sacred as those which prevent us from opening Oklahoma, and certainly the moral obligations are even greater. These people, especially the Wichitas, have taken deep root in these lands, have built their homes, and opened up farms. This is being done with most encouraging rapidity by the Cheyennes, Arapahoes and Comanches. It would be a cruel outrage to force them to remove; it would be a disastrous step backward to induce them to go. The lands to which they would remove are not so good as those now occupied; they are bitterly opposed to the plan, and it ought not to be attempted." And then the report continues with a definite recommendation that "Oklahoma ought to be opened up; it is not needed by the Indians; it cannot be kept empty and ought not to be so kept; but if treaty obligations and moral obligations must be violated, it is better to do so with reference to vacant lands than with reference to established homes. Steps ought to be taken at once to gain the consent of the Creeks and Seminoles to throw this land open to settlement, and it could doubtless be done if a fair price above thirty cents per acre which we have paid for it for the settlement of Indians upon it was offered for it."