CHAPTER XXIV
LANDS IN SEVERALTY

    The division of Indian lands in severalty was tried in the case of some northern Indians before the war, and was proposed for the tribes of the Indian country by the commissioner of Indian affairs in his report of 1859. He says: "The flattering accounts in relation to the adoption by several of the northern tribes of Indians of the plan of allotments to them in severalty of a portion of their tribal country had induced this office to suggest to the superintendent of the southern superintendency that the fact be communicated to the Indians within his district with a view to a consummation of a similar police among them. Such a system could very well be administered and carried out by the Indians themselves, with a little assistance from the government. It would be necessary that their lands should be regularly surveyed. . . . This being done, it would be advisable for them to select reservations for themselves, which would at once give to all classes an idea of separate property in lands, and, in my judgment, stimulate them to greater exertions to become practical agriculturists, and they would progress more rapidly in all the arts of civilization. Thus, too, a prosperous and thriving community would be formed, which would soon be in a condition to come in closer contact with the white race.
   The apportionment of the Indian lands in severalty and the opening of a part of Indian Territory to white settlement were measures advocated early in the Civil war by W. G. Coffin, superintendent of the southern Indians. In a report¹ dated September 1, 1862, he says, referring to the probability of new treaties being made with the tribes in rebellion, "Let the treaties provide that the Indians shall take their land in severalty, and wholly abandon the policy of holding them in common. . . . Let the treaties also provide for the survey of all the Indian reservations valuable for agricultural purposes, and after the Indians make their selections, open up the balance to sale and settlement by whites. . . . I am aware that it has been, and perhaps now is, in contemplation to concentrate the Indians in the states further north in the Indian Territory; but in my opinion that would be bad policy. . . . "
    With a knowledge of the developments that have been witnessed in the preceding chapters, it seems remarkable how exactly the recommendations of these officials of the Indian department were fulfilled. It is evident that the allotment idea was not new at the time it was given practical effect by Congress in 1887, and that in the solution of the Indian question it had long been considered by those taxed with the burden of this problem.
    In endeavoring to break down the Indian system of commercial or tribal possession of lands, the government struck at the very

[Footnotes]
    ¹Ex. Doc., 3d Sesss., 37th Cong., Vol. II, pp. 311-312

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foundation of Indian economic practice. The idea of individual ownership of land was unknown to the American Indian in his native state. The members of the tribe might, as individuals, possess articles of dress, weapons and trinkets, which were often, according to their superstition, carried along after death to the happy hunting ground, but the land around their village was a "common" and the crops that were raised and the herds that pastured there belonged to all within the village or tribe. An Indian's reasoning as to the benefits of commercial land holding has thus been reported: "If I die, my wife cannot lose her home; my children cannot lose their homes. It cannot be taken from my children for debt; it cannot be sold from over their heads. They have a home just as long as any other Indian has a home." That was the logic of the system to which they clung as tenaciously as Americans cling to individual ownership.
    As long as the Indian was content with the low standards of economic progress that characterized his history during the greater portion of American history, this communism answered all the demands of Indian social existence. But, as a result of contact with the white people, when personal ambition and rivalry for wealth began to actuate some members of the tribe, the system quickly exposed its fundamental faults. Under the influence of the example of civilized people, the nations of the Indian Territory had, while still adhering to the inherited system, modified it to the extent of allowing individuals to cultivate and use for grazing as much land as they could fence off from the common estate. Though the ownership still remained with the tribe or nation, each individual was privileged to use as much land as his enterprise and ambition could compass. Such was the common practice among the five civilized tribes as long as tribal ownership, prevailed, and from this arose the disproportionate division of the lands which proved the strongest argument against the system on which it was based, and finally brought about its abolition. The inequity of common ownership was noted in the report of the commissioner of Indian affairs in 1887 (the year in which the first allotment law was passed). "The more enterprising among these Indians," referring to one of the five tribes, "have in actual cultivation and under fence many times more land than their per capita share." In the same year, the platform of principles adopted by one party in a Creek election, stated the dangers that threatened the nation's economic welfare. "We have noticed with much concern the inclosing [enclosing] of large tracts of the public domain and the common pasturage by a few citizens to the exclusion of others. We condemn this practice as a species of monopoly that is in direct conflict with our system of land tenure. Every citizen, whether rich or poor, has an equal, and only an equal, interest with every other citizen in our landed estate, and is therefore actually entitled to only a pro rata share of this our common heritage." With such a clear perception, on the part of many of the Indians, of the evils of their land-holding system, coupled with their earnest conviction that each member of the tribe was entitled to his equal share, it is evident that the doctrine of allotment in severalty would appeal with special force to the citizens of the five tribes even at that time.
    The basis for a division of the lands of the five tribes among individual owners had been laid in the treaties of 1866 (as had been recommended by Superintendent Cof-[fin]

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[Cof]fin in the preceding quotation). The original Cherokee constitution provided that the national lands should remain common property, the improvements alone being the property of individual citizens, who, however, were not permitted to dispose of them to the United States or citizens of the same. But by an amendment adopted November 26, 1866, "the lands . . . shall remain common property until the national council shall request the survey and allotment of the same." This amendment was adopted in accordance with article 20 of the treaty of July 19, 1866. The provisions in the Choctaw-Chickasaw treaty of April 28, 1866, relating to allotment are quoted below.²
    The allotment in severalty of the lands among the Indians outside of the five civilized tribes was finally made the subject of the general law of 1887, the provisions of which and its results in expanding the settled area of Oklahoma territory have been described in the previous chapter. When the Oklahoma Indians took individual homesteads, they immediately, under the provisions of the act, became citizens of the territory and the United States. The tribes, being numerically small in proportion to the surrounding population,were absorbed in the general citizenship, and the jurisdiction of Oklahoma courts and civil administration was extended over whites and Indians alike.
    But the problems of bringing the members of the five tribes into effective and harmonious relations with the system of American government presented many more difficulties and complications. At the time the allotment of lands was proposed in the treaties of 1866, it was the ostensible purpose that, after such division had been effected, the Indians should still constitute and "Indian state," patterned after other state governments, but with the legislative and administrative powers controlled and directed by the Indians themselves. This was the ideal plan, long cherished by those who foresaw the complete civilization of the Indian. Had it been possible to realize these ideals, we might have witnessed the establishment of such an Indian state, with an Indian majority directing the affairs of government, with Indian judges in the courts, with counties and towns officered by Indians, and with this race occupying the dominant position in agriculture and industry; at the same time, the whites

[Footnotes]
    ²Art. 11.   WHEREAS, The land occupied by the Choctaw and Chickasaw nations, and described in the treaty between the United States and said nations, of June twenty-second, eighteen hundred and fifty-five, is now held by the members of said nations in common, under the provisions of the said treaty; and, whereas, it is believed that the holding of said land in severalty will promote the general civilization of said nations, and tend to advance their permanent welfare and the best interests of their individual members, it is hereby agreed that, should the Choctaw and the Chickasaw people through their respective legislative councils, agree to the survey and dividing their land on the system of the United States, the land aforesaid east of the ninety-eighth degree of west longitude shall be, in view of the arrangements hereinafter mentioned, surveyed and laid off in ranges, townships, sections, and parts of sections; and that for the purpose of facilitating such surveys and for the settlement and distribution of said land as hereinafter provided, there shall be established at Boggy Depot, in the Choctaw territory, a land office and that, in making the said surveys and conducting the business of the said office, including the appointment of all necessary agents, and surveyors, the same system shall be pursued which has heretofore governed in respect to the public lands of the United States and by their agents and surveyors, as in the case of their own public lands, and that the officers and employes [employees] shall receive the same compensation as is paid to officers and employes [employees] in the land offices of the United States in Kansas.

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would have enjoyed equal opportunities, would have lived peaceably by the side of their Indian neighbors, content to live thus, even though in the minority numerically and in political and economic influence.
    The impossibility of reaching such a happy result has been explained. Before the tribes could attain the advancement where lands were distributed per capita and as individuals placed upon a plane of equal citizenship and free competition and intercourse among themselves and with the surrounding population, new and disturbing factors had been introduced to delay and render extremely difficult the solution of the questions involved. Before a practical step was taken in making American citizens of the Indians, many thousands of white "intruders" had come among the five tribes and had secured material advantages and permanent residence which both the tribal and federal governments found it impossible to take away. Owing only a limited allegiance to the federal government, for the most part unable and not desiring to incorporate themselves as tribal citizens, the intruders in time formed a large proportion of the total population, without the legal rights of citizens, without courts, without social institutions, yet, in other respects, active, producing factors in the country of their residence. Seeing this increasing class of intruders, and witnessing the results of their superior enterprise and intelligence, the Indians naturally regarded them with jealousy and saw safety only in retaining their old national system of isolation. For it was clear, if the gates of seclusion were opened and individualism substituted for the common tribal bond, that the intruders would quickly gain control and the Indians would be reduced to the position of a minority, if not of distinct inferiority.
    Thus there were two influences, partly cooperating and partly antagonistic, in working out the Indian problem in the Indian Territory. The government was steadily pursuing its plans for allotment in severalty and the raising of the Indian to the dignity of citizenship. At the same time the intruder class were clamoring for a comprehensive citizenship that would embrace themselves and afford legal guarantee to the property and residence values which they had established; while they wanted the principal benefits the government was seeking to provide, their interests were in many respects opposed to those of the Indians, and the government was confronted with the problem not only of adjusting the affairs of the Indians themselves, but of settling the relations of the original owners with the intruding residents.
    The political status of the tribes was a subject of discussion in the report of the commissioner of Indian affairs in 1885. He says: "What political development lies before the Indians of the Indian Territory it is impossible to foresee; but one thing is evident, the idea of maintaining permanently an imperium in imperio, such as now exists, must, in some respects, be abandoned. The idea of Indian nationality is fast melting away, and the more intelligent Indians are themselves awaking to this fact. In a word, the Indians in the Indian Territory must sooner or later break up their tribal relations, take their lands in severalty, and to all intents and purposes become citizens of the United States."
    One of the first effects of white intrusion upon the political situation was in the extension of federal protection to white residents through the courts. At first the jurisdiction of outside courts, in the territory of Arkansas, was stretched over the Indian

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Territory. This was done in 1877 when the Indian Territory was attached to the western district of Arkansas, the district court taking cognizance not only of civil and criminal cases among the white intruders, but also of cases arising from inter-tribal relations. With the increase of population, the Arkansas courts proved inadequate in affording the prompt judicial relief necessary in a social community. Occasionally a criminal was taken several hundred miles to Fort Smith, at great expense to the government, but civil suits, unless involving large sums, could not be maintained in that distant court. The only courts held in Indian Territory prior to 1889 were Indian tribal courts, before which the pleas of white residents were not heard. The United States court established in Indian Territory, at Muskogee, by the act of March 1, 1889, had a limited jurisdiction, like a justice court, and it afforded little relief to the settlers during the opening of Oklahoma.
    The Oklahoma organic act of May 2, 1890, devoted several paragraphs to the matter of establishment of a new system of federal courts for the Indian Territory. The Territory being divided into three divisions, courts were to be held at Muskogee, South McAlester and Ardmore. But the jurisdiction of these courts was limited as before, the commissioner that was provided for each division being little more than a justice of the peace. As a result the two hundred thousand white people in Indian Territory, not being subject to the law of the Indian nations, had to seek the benefits and protection of the law partly in the federal courts at Fort Smith, Arkansas, and Paris, Texas, and partly in the minor federal courts of Indian Territory. Naturally a conflict of jurisdiction arose, and the seeking of justice at Fort Smith or Paris involved expense and inconvenience that were heavier penalties than the original injustice. The local courts, administering justice for an area as large as Indians, were constantly overburdened.
   The system resulted in a practical denial of justice, except in matters of paramount importance, and then only after much delay. It was claimed that the expense of prosecuting crimes and maintaining courts in Indian Territory amounted to about one-seventh of the total judicial expense of the United States, and this disproportionate expense was not due to the prevalence of crime but to the system. The fees obtained by marshals in taking criminals to court proved temptations to an abuse of their power in making arrests. In some of the first appeals from the people of Oklahoma and Indian Territory to the general government for relief from the burdens and ills arising from lack of self-government, the condition of the courts furnished one of the strongest arguments for the petitioners. "We have," to quote from the memorial of the Purcell statehood convention of September, 1893, "five ambiguous and conflicting court jurisdictions. The Indians have their local tribunals, with their barbarous whippings and executions by shooting. The Indian agent is empowered to enforce certain of the federal statutes with police at his back. Two foreign courts, with power of life and death over our people, sit at Fort Smith, Arkansas, and Paris, Texas. Our home federal court is little more than a big justice court, that smacks strongly of the police court. We have so much law that we can't tell where one court's jurisdiction leaves off and another's begins." Thus the cry for judicial home rule was taken up, and through all the subsequent agitation for

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statehood was echoed and re-echoed and reinforced by a mass of evidence that was constantly growing to show the inadequacy of the system.
    The status of the Cherokee people, to take a particular case, and their relations with the general government underwent gradual change from the treaties of 1866 until the nation was absorbed into the state. The intruder class became more numerous every year,and a source of greater trouble to the nation, owing to the fact that the Cherokee lands bordered on Kansas and Arkansas. Under the treaties the right to decide citizenship or residence claims belonged to the tribes concerned, but the intruders at last became so numerous and strong that they formed an organization among themselves to pass upon their own claims, and others might be submitted to them, with attorneys and ample funds to defend each claim in outside courts against the decision of the tribes. By this time the government was committed to the policy of breaking up the Indian reservations and allotting the lands in severalty. In line with this policy, the jurisdiction of the United States courts was gradually being extended over the Indian country, absorbing many of the former powers of the Indian tribal courts. By persistent negotiation and pressure, the Cherokee Commission had secured the cession and opening of the Outlet, against the bitter opposition of a large part of the tribe, and from that time the dissolution of Cherokee nationalityproceeded slowly but surely step by step. With the other nations similar influences were working to the ultimate end.
    The situation of the non-citizen class in towns and cities in the Indian Territory under tribal government was illustrated in a few sentences in the memorial by the Purcell statehood convention of 1893: "The white non-citizens, the wealth-producing class of the Five Nations, have erected improvements to the value of many million dollars upon the land and put in cultivation nearly every acre utilized for farming. Under the tribal laws they can negotiate no leases for longer time than one year, and are subject to eviction by the Indian landlord at the expiration of that time. A score of towns containing from 1,000 to 5,000 residents, and many of less population, have personal property aggregating fully $5,000,000, with not a shadow of title to the soil beneath their buildings, many of which are substantial and expensive structures, one alone built by non-citizen capital costing $70,000. The personal property of the town of Ardmore approximates $1,000,000. These towns have no municipal governments and are wholly dependent upon private liberality and enterprise for the maintenance of what few sanitary and other imperative public regulations they enjoy. Their growth and public order, health and comfort require that they have municipal organizations."
    In another place the memorial offers a severe criticism on the tribal governments: "The politicians who control the five nations and are anxious to perpetuate the same to their pecuniary profit and for the wreaking of factional vengeance, are incapable of appreciating the principles of free government or administering it. The recent Locke insurrection of the Choctaw Nation, which resulted in many political assassinations and required federal intervention to prevent the execution of partisan prisoners, is an instance in point. These governments are more oligarchies for self-aggrandizement and public spoliation."
    From these quotations, it is clear that the

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majority of the so-called intruder class were in a position of antagonism to the five national governments to which in may respects they were subject, but in whose direction they had no voice. Here were two peoples living side by side, the weaker possessing the lands and the government, and the stronger and more enterprising chafing under their restrictions and clamoring for the representation in government and the independence of occupation and ownership to which they could put forth no claims of moral right and law. Knowing the temper of an aggressive body of American settlers, the outcome could not long remain in doubt. When the first railroad was built through the Territory and white men's towns and cities sprang up along the right of way, the doom of Indian seclusion was pronounced, and it now remains to describe the manner in which the adjustment of the relations between members of the tribes and non-citizens was effected.³

[Footnotes]
    ³A general discussion of the status of the Indians and whites and the problems then pressing for solution was written by R. W. McAdams, in the Oklahoma Magazine in 1894, and is quoted as an example of some of the highly colored opinions then current regarding this question:
    "Many of the country's most profound students of the Indian question—men and women who have made the race and its relation to the nation a life study—have become converts to the policy of individualism and severalty. The citizenship question aside, the folly and injustice of reserving many million acres of arable land as a wilderness used only as a camping ground for a few thousand lazy, squalid governmental paupers, is palpable. If the Indians must be fed and herded like a dumb brute, it should be done within smaller enclosures and not so senselessly at the expense of the American homesteader. He will fare as well on federal rations upon an allotment of 160 acres as upon an allotment of many hundred acres per capita, and give less trouble to his herders, the United States agents and military. . . .
    "The Indian menagerie called a reservation has undone whatever good the missionary and the mission school may have accomplished. The agency system as political patronage is responsible for a large share of the failure. The Indian has been the victim of a bureaucracy which has held him a spoil of politics. When we consider how long he has run the gauntlet of rascally agents and thieving contractors, it is a wonder he has come out with a blanket on his back and beef entrails in his stomach. It is a wonder there have not been more Wounded Knees. The paternalistic policy of the government has put a premium upon idleness and foster abject dependence. Industrialism and citizenship go hand in hand in Indian civilization. . . .
    "That the United States should have been so shortsighted in formulating and carrying out its Indian policy is astonishing. It seems to have been its purpose, through binding treaties and the creation of a special bureau, to eternally perpetuate the reservations system of isolation and pensionary dependence. It seemingly never contemplated the elevation of the Indian to citizenship and the razing of the Chinese wall which has been studiously built to keep him apart from the rest of humankind. Worse than this, it has clothed certain of the tribes with elements of sovereignty little short of foreign independence, virtually establishing alien powers within our borders. The Cherokees, Creeks, Seminoles, Choctaws and Chickasaws, composing the five civilized tribes, furnish an instance in point. These Indians were removed to the Indian Territory more than fifty years ago and given extraordinary promises and privileges. Their lands, a rich domain as large as any of the states, were patented to them to be held in common by the members of the respective tribes 'as long as grass grows and water runs,' and they were guaranteed as perpetual sovereignty. . . .
    "When the skirmish line of the westward marching army of civilization reached the dead line of this Indian principality it halted and parleyed. The parley evolved a truce. The ruce resulted in an invitation to the white man to come across the line and become an Indian. This singular metamorphosis was legally effected by the party of the first part being adopted by or marrying the party of the second part. Thus the 'squawman' began to work out the solution of a great problem, for none will gainsay the potency of amalgamation as a civilizer. All else failing, that will win. The Indian, singularly enough, almost invariably inter-marries with the white race when the opportunity presents itself, and his land advantages serve to put a coveted premium upon the material union which never goes begging. The 'squawman,' be it said to his credit, could not be an Indian in

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mode of life. Once in the tribe his native enterprise and thrift asserted themselves. The rich pastures and fertile valleys of his adopted country appealed to his cupidity. He became a farmer and a herdsman. As his crops and his herd increased, he perceived the need of alien labor, for the Indian will only work by compulsion or from direct necessity. This need was supplied from the main body of the army which he had preceded and which, having arrived on the outside, clamoring for admittance. The Indian councils, kindly disposed toward their adopted brother, and easily persuaded, enacted laws permitting the introduction of white laborers, which, being liberally interpreted, led to an indiscriminate immigration of tradesmen, craftsmen and adventurers. In this the benevolent purpose of the federal government was set at naught, if indeed, the treaties were not violated by the Indians themselves; but the powers at Washington winked at the infraction. The land of the five civilized tribes filled rapidly with a white population and the material resources of the country were developed proportionately. At this time [1894] there are 250,000 alien white residents in the Indian Territory and but about 50,000 tribal members. . . .
    "After half a century of settlement and development under such anomalous conditions it may be imagined what a unique situation is presented by the Indian Territory and what a complex problem it forces upon Congress. Here are a quarter of a million United States citizen residents with many millions of dollars and an infinite amount of labor expended in fixed improvements upon soil to which they can acquire no title, without common school facilities, without governmental organization or representation, without eleemosynary or penal institutions, without care for their insane, without the simplest municipal regulations for towns of 5,000 inhabitants or state relief from the various public burdens. Despite these drawbacks it is a remarkable fact that this country has kept well abreast of the progress of the adjacent states. Little if any difference in surroundings will be noted by the traveler in passing from one of the states through the Five Nations. The churches, the schoolhouse, the stores, the residences, the mills, compresses, gins and small factories are quite as substantial, attractive and numerous in the latter section, while the face of the country shows as marked improvement. The mere statement that more than fifty newspapers and periodicals are published there will give the reader some idea of the extent of this development. . . . "