CHAPTER III

BOUNDARIES OF THE STATE OF OKLAHOMA

    The history of the formation of Oklahoma's boundaries is unlike the history of the limits of any other state. More than in the case of any other state, perhaps, can it be said the boundaries are the result of events and circumstances which, but for this one reason, would hardly be mentioned in the history of Oklahoma. States and territories, one after another, were carved out from the southwestern country, and then what was left over, being the home of the Indians and generally known as "Indian Territory." In more respects than one, Oklahoma has been a "remnant" in the history of the nation.
    The first boundary line of Oklahoma to be fixed approximately as it remains to-day was that on the south and west. Oklahoma being in the southwestern corner of the Louisiana Purchase, it followed that its southwestern corner of the Louisiana Purchase, it followed that its southwestern limit would be the line dividing the Spanish possessions from the territory of the United States. Though the western extent of Louisiana was claimed to be marked by the Rio Grande, this claim was nullified by the treaty between Spain and the United States, of February 19, 1819, when the boundary between the United States and the Spanish possessions was defined, in part, as beginning at the mouth of the Sabine river and continuing along the western bank of that river to the 32d parallel; "thence by a line due north to the degree of latitude where it strikes . . . . the Red river; then following the course of the Rio Roxo [Red river] westward to the degree of longitude 100^o west from London . . . . ; then crossing the said Red river and running thence by a line due north to the river Arkansas," etc.
    The division of the territory acquired from France in 1803 began with the act of Congress, March 26, 1804, when the Louisiana Purchase was divided and that portion lying north of the 33d degree of latitude was erected into the "District of Louisiana," including therein all the purchase north of the present state of Louisiana. No other division of this immense "district" was needed for some years. However, on March 3, 1805, the name was changed to "Territory of Louisiana," and on June 4, 1812, Congress gave a territorial form of government under the name of the Territory of Missouri.
    At the time of the Louisiana Purchase, settlement above New Orleans was limited to the west bank of the Mississippi, but by the close of the decade had extended over a strip fifteen or twenty miles west of the river. The population was sufficient to justify the organization of a territorial government, there being over twenty thousand people in the territory of Missouri at the end of 1812.
    The issue of slavery was involved in the next subdivision of this territory. Louisiana, the first state to be admitted from the Louisiana Purchase, had entered the Union in 1812 a slave state as a matter of course. But when Missouri territory asked for admission,

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    its peculiar geographical position, lying both north and south of the generally recognized slavery line, made it an object of dispute between the jealous guardians and opponents of slavery. As a result of the famous Missouri Compromise, passed in March, 1820, and which closed the dispute of three years' duration over the status of the territory, a new boundary was formed in our nation's geography, the parallel of 36^o 30´ thereafter being synonymous with the "Missouri Compromise line."
    The line had already come into use when the territory of Arkansas was organized from the southern part of Missouri territory in March, 1819. Except for a short distance¹ at the eastern end, that parallel formed the northern boundary of the new territory of Arkansas from the Mississippi river west to the 100th meridian, which at that time was the "western territorial boundary."²
    For five years all that part of the present state of Oklahoma lying south of the southern boundary of Beaver county (extended to meet the southern line of Missouri), formed the western half of the territory of Arkansas, and was under the jurisdiction of the Arkansas territorial government. However, there was at the time no white population within the region, and the existence of a territorial government here preceding the time it was set aside as an Indian territory had few if any definite results.³
    One other matter may be noticed in connection

[Footnotes]

    ¹The territory of Arkansas was organized from the southern part of Missouri territory by act of March 2, 1819, with the following limits: "All that part of the territory of Missouri which lies south of a line, beginning on the Mississippi river, at thirty-six degrees north latitude, running thence west to the river St. Francois; and thence up the same to thirty-six degrees thirty minutes north latitude; and thence west to the western territorial boundary line."
    ²The boundaries of Missouri on the south and west, as defined in the statehood act of March 6, 1820, were: South the 36^o 30´ latitude "extended west to a point where it intersects a line drawn due south from the junction of the Kansas river with the Missouri." North of the Missouri river the western boundary was extended, in 1836, to the Missouri river.
    ³Under the title of "The Common Law in Oklahoma," Henry E. Asp, discussed various phases of this question before the Oklahoma Bar Association in 1902. In seeking a historical basis for the existence of the common law within the Indian Territory at the time of the original opening in 1880 and previous to the territorial organic act, Mr. Asp considers the successive governments that had jurisdiction over that part of the Louisiana Purchase called Oklahoma. With the formation of the District of Louisiana in 1804, a temporary government was provided by the following section: "The executive power now vested in the governor of the Indian Territory shall extend to and be exercised in the said District of Louisiana. The governor and judges of the Indian Territory shall have the power to establish in the said District of Louisiana inferior courts and prescribe their jurisdiction and duties, to make all laws which they may deem conducive to the good government of the inhabitants thereof."
    After being attached to Indiana for governmental, legislative and judicial purposes, a separate territorial government was provided when the territory of Missouri was organized in 1812. Section 16 of the organic act provided: "That the laws and regulations in force in the territory of Louisiana at the commencement of this act and not inconsistent with the provisions thereof shall continue in force until altered, modified, or repealed by the general assembly."
    On January 19, 1816, the legislature of the territory of Missouri enacted a statute extending in force the common law of England (vol. 1, Territorial Laws Missouri, page 436). the statute is as follows:
    "The common law of England, which is of a general nature, and all statues made by the British parliament in aid of or to supply the defects of the said common law, made prior to the fourth year of James the First, and of a general nature, and not local to that kingdom, which said common law and statutes are not contrary to the laws of this territory, and not repugnant to, nor inconsistent with the constitution and laws of the United States shall be the rule of decision in this territory, until altered or repealed by the legislature, any law, or custom to the contrary

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with boundaries. The greater part of the present Oklahoma lying south of 36^o 30´, it became, by the Missouri Compromise, legitimate slave territory. If the question of statehood for the Indian Territory had arisen before the Civil war, no opposition could have been raised to its entering the Union as a slave state.
    Within five years after the organization of the territory of Arkansas, its western boundary was drawn in, so that instead of extending to the extreme western limit of the Louisiana Purchase, Arkansas extended to a line commencing at a point forty miles west of the southwest corner of the state of Missouri, and thence south to the right bank of the Red river.⁴ A map of Arkansas at that time would have shown its western boundary as a north and south line drawn through a point slightly east of the present city of Muskogee.
    Later, in the treaty with the Western

[Footnotes cont.]

    not withstanding, provided, however, that none of the British statutes respecting crimes and punishments shall be in force in this territory, nor shall any person be punished by the common law, where the laws and statutes of this territory have made provisions on the subject, but where the laws and statutes of the United States and this territory have not made provisions for the punishments of offenses, the several courts may proceed to punish for such offenses, provided, the punishment shall in no case be other than fine and imprisonment, and the term of imprisonment shall not exceed two months; and the fine shall not exceed one hundred dollars."
    On March 2, 1819, the Congress of the United States passed an act entitled "An act establishing a separate territorial government in the southern part of the territory of Missouri" (3d U. S. Statutes at Large, page 493). Section 1 of the act provides:
    "That from and after the 4th day of July next, all that part of the territory of Missouri which lies south of a line, beginning on the Mississippi river at 36 degrees and 30 minutes north latitude, and thence west to the Western Territorial boundary line, shall for the purpose of a territorial government constitute a separate territory and be called the Arkansas territory."
    Section 5 of the act provides: "That the legislative power shall, until the organization of the general assembly hereinafter provided for, be vested in the governor and the judges of the superior court of the territory who shall have power to pass any law for the administration of justice in said territory which shall not be repugnant to this act or inconsistent to the constitution of the United States. Provided, that whenever the general assembly shall be organized all the legislative power of the territory shall be vested in, and be exercised by, the said general assembly."
    Section 10 of the act provides: "That all the laws which shall be in force in the territory of Missouri on the 4th day of July next, not inconsistent with the provisions of this act, and which shall be applicable to the territory of Arkansas shall be, and continue in force in the latter territory until modified or repealed by the legislative authority thereof."
    Despite the subsequent contraction of Arkansas' limits to those that now mark the state's boundaries, Mr. Asp held that the rules of common law, once extended over the Oklahoma country continued in force there by virtue of the fact that no act of Congress had ever withdrawn or repealed their operation. In conclusion, he says:
    "Under the rule announced by the supreme court of the United States, and held by numerous courts, the common law remained in force in the territory of Oklahoma as promulgated by the statutes of Missouri January 19, 1816, and did not recede when the territorial boundaries of the territory of Missouri contracted. The fact that the country now embraced in the territory of Oklahoma was for years an Indian country does not militate against the fact that the common law did remain in force as affecting the private contracts entered into in this territory. The law as stated in Pyatt against Powell by the court of appeals, and as announced by the chief justice of this territory, in McKennon against Winn, are correct statements of law based upon wrong reasons."
    ⁴Act of May 26, 1824 (Stat. at Large, Vol. IV, 40), provides: "That the western boundary line of the territory of Arkansas shall begin at a point forty miles west of the southwest corner of the state of Missouri and run south to the right bank of the Red river, and thence down the river, and with the Mexican boundary, to the line of Louisiana."

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Cherokee, May 6, 1828, the western boundary of Arkansas was thus defined: "A line shall be run, commencing on Red river, at the point where the Eastern Choctaw line strikes said river, and run due north with said line to the southwest corner of Missouri."
   When Arkansas was admitted into the Union, by act of June 15, 1836⁵, the western boundary of the state was fixed by the line described in the first article of the treaty of May 26, 1828, which is the present western boundary of Arkansas.⁶
   Thus by 1828 Missouri and Arkansas had been formed from the Louisiana Purchase with practically the limits they have to-day. To the west of these lay a vast country wholly unorganized. Being far beyond the advance of white civilization, there was as yet no necessity to provide it with government, and except so far as the common law declared in force while this country was a part of the Missouri or Arkansas territory continued effective, this region was beyond the influence of government and civilization and only nominally under the power of the federal government. Practically this country was already designed for the home of the Indian tribes, but, as related elsewhere, it was not until the act of June 30, 1834, that Congress declared that all that part of the United States lying west of the Mississippi river and not within the states of Missouri, Louisiana, or the territory of Arkansas, should be taken, for the purposes of the act, to be "Indian Country."
   The definite limits of the Indian country were, on the east, the west lines of Missouri and Arkansas, while on the west and south the Mexican possessions still formed the barrier of American sovereignty, the Red river and the 100th meridian separating the two national dominions. With the exception of the points involved in the Greer county case, to be noticed later, the boundary lines thus drawn by the treaty of 1819 (already referred to) have continued without change.
   In 1836 Texas declared its independence of Mexico, and in 1845 was admitted to the Union. It then comprised parts of territory now included in New Mexico, Oklahoma, Kansas, Colorado and Wyoming. In 1850

[Footnotes]
⁵5th U. S. Stat. at Large, p. 50.
⁶The provisions in the treaty of May, 1828, by which the forty-mile strip on the western side of Arkansas was cut off and given to the Cherokees, were vigorously opposed in the United States senate by Benton of Missouri ("Thirty Years' View," Chap. XXVI). He says: "The inexpediency of the treaty was in the question of crippling and mutilating Arkansas, reducing her to the class of weak states, and that against all the reasons which had induced Congress, four years before, to add on twelve thousand square miles to her domain. . . . I felt this wrong to Arkansas doubly. . . . I argued, as I thought conclusively, but in vain. The treaty was largely ratified, and by a strong slave-holding vote, notwithstanding it curtailed slave territory, and made soil free which was then slave . . . . The reason of the southern members for promoting this amputation of Arkansas in favor of the Cherokees was simply to assist in inducing their removal, by adding the best part of Arkansas with its salt springs, to the ample millions of acres west of that territory already granted to them . . . . I have said that the amputated part of Arkansas was an organized part of the territory, divided into counties, settled and cultivated. Now, what became of these inhabitants?—their property?—and possessions? They were bought by the federal government! A simultaneous act was passed, making a donation of 320 acres of land (within the remaining a part of Arkansas), to each head of a family who would retire from the amputated part; and subjecting all to military removal that did not retire. It was done. They all withdrew. Three hundred and twenty acres of land in front to attract them, and regular troops in the rear to push them, presented a motive power adequate to its object; and twelve thousand square miles of slave territory was evacuated by its inhabitants, with their flocks and herds and slaves; and not a word was said about it; and the event has been forgotten."

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it related to the control of the United States all its territory north of latitude 36° 30´and west of the 103d meridian as far south as latitude 32°. The history of this transaction has direct bearing on Oklahoma history.
   The government of Texas, after becoming independent, claimed all the country between the water courses of the Red and Rio Grande rivers, including a large part of what is now New Mexico. By the treaty of 1848 between Mexico and the United States, New Mexico was a part of the vast territory ceded to the latter government. In the same year the legislature of Texas (now a state) passed an act extending its jurisdiction over New Mexico, but when a Texas judge tried to hold court in the territory he came into direct conflict with the federal authorities. In surrendering her nationality Texas likewise gave over the customs and revenues which a sovereign nation enjoys. But all the loans of the republic had been based upon these receipts as security, and, of course, the bondholders at once applied to the United States for satisfaction. The question whether the federal government should be responsible for the obligations of the old republic was in the end combined with the boundary dispute, and the two were settled by one of the famous compromises of American history.
   It is a proof of the dominating power of the slavery issue during that time that these two subjects should be involved and be settled incidentally to a compromise that afforded the last breathing spell for the two sections of the nation then hurrying on to the inevitable conflict. The great battle had reached its height at Washington early in 1850, and under the leadership of Henry Clay the opposing factions were brought together on the compromise measures which were enacted into law the following September. The essential features of the compromise were as follows: The admission of California as a free state. The organization of two new territories—Utah, including Nevada, and New Mexico, including Arizona, without the Wilmot Proviso; that is, with no conditions prohibiting slavery. The slave trade was abolished in the District of Columbia, and, in return, a stringent law was passed for the arrest of fugitive slaves in northern states. Involved in the settlement was the provision that Texas should be paid $10,000,000 in return for surrendering her claim to the territory east of the upper Rio Grande. A contemporary writer, advocating the adoption of the compromise as a distinct gain for the anti-slavery cause, said: "The native inhabitants of this region [east of the upper Rio Grande] cherish sentiments of bitter hostility toward the Texans, who now threaten to extend their disputed dominion over them by force . . . . Slavery cannot be introduced into this region, which is too elevated, too barren, and situated too far north to recompense any other than free labor; but if the laws of Texas are extended over it, it becomes a portion of a slave state, and whatever political power it may subsequently obtain will be lost to the cause of freedom. Both humanity and policy require, therefore, that the north should submit to any reasonable sacrifice for the purpose of severing this region from Texas and adding it to the free territory of New Mexico. Now, by the terms of the compromise the sacrifice required is a very trifling one. Texas is willing to sell her claim to the disputed region for what she calls a fair price . . . . and the United States are bound in equity to cause the creditors of Texas to be paid a sum at least equal to this price, because the revenue from the customs of Texas, which is now paid into our

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national treasury, was formally and solemnly pledged to these creditors as a security for their dept. . . . The south makes no objection to this arrangement; Texas, as we have said, consents to it, and the north ought to be satisfied with it, because, first, it will preserve the national faith, and, secondly, it will rescue a large tract of country from the dominion of the slave state, and by joining it to New Mexico add it to the 'area of freedom.'”
   Thus it came about that the boundaries of the Texas Panhandle were fixed by this compromise of 1850, leaving the peculiar configuration of state limits that has since remained one of the most striking features in the mapped outline of the southwest. By this agreement between Texas and Congress it was provided that Texas' "boundary on the north shall commence at the point at which the meridian of 100° west from Greenwich is intersected by the parallel of 36° 30´ north latitude, and shall run from said point due west to the meridian of 103° west."
   With the compromise of 1850 provisions were made for the division of practically all the territory acquired from Mexico into states or territories. This included all the area west of the crest of the Rocky mountains, and New Mexico's northern boundary, as fixed by that act, extended along the 38th degree of north latitude from 103d meridian west "to the summit of the Sierra Madre." So that, in 1850, the "Indian country" comprised all the country between the states of Missouri and Arkansas on the east and the Rocky mountains and Texas on the west, while it southern boundaries were the Red river and the north line of the Panhandle and New Mexico.⁸
   The compromise of 1850 caused no abatement of the energy with which the south and the north struggled for control of territory and extension of political influence. California had come into the Union a free state, the other territory acquired from Mexico was not likely to be ready for statehood for some time to come, and the only portion of the United States that was still subject to settlement and organization was the western half of the Louisiana Purchase, most of which was free territory according to the terms of the Missouri Compromise.
   A contest was inevitable before any of this territory could be organized or come into the Union. The terms of the Missouri Compromise were already the object of hostility from the south. In order that this

[Footnotes]

   ⁷By act of June 5, 1858, Congress directed the survey of this boundary, which should begin "at the point where the 100th degree of longitude west from Greenwich crosses Red river, and running thence north to the point where said 100th degree intersects the parallel of 36° 30´ north latitude, and thence west," etc.
   This survey was executed just prior to the Civil war, in 1858-60. Most of the boundary on the 100th meridian was surveyed and marked by the Indian contract surveyors, A. H. Jones, and H. M. C. Brown. Portions of a letter written by these surveyors late in the year 1858 to the commissioner of Indian affairs will prove of interest in this history. "We are now encamped," they wrote (their camp was called "Camp Radziminski"), "within sight of Major Van Dorn's command on Otter creek, west of the Wichita mountains, and about 2 miles east of the point on this creek that Captain Marcy reports to be the 100th meridian. . . . Since our arrival the results of our observations are of such a character as to safely notify the department that the 100th meridian, west longitude, is at least 40 miles farther westward than any line hitherto reported or delineated upon the topographical maps."
   The north line of the Panhandle was marked by John H. Clark in 1860. The government subsequently directed a re-marking of different lines of the Panhandle boundary, Preston's survey having been made as late as 1900. In 1892 Henry S. Pritchett, under the direction of the Texas government, fixed the location of the 100th meridian in its intersection with the Red river. This determination was for use in the famous lawsuit known as the Greer county case.

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antagonism of sectional interests might not jeopardize the economic welfare of the country west of Iowa, then called the Platte country, Stephen A. Douglas sought what he deemed to be a happy solution of the vexed problem. He applied the theory of "squatter sovereignty" as the rule by which to determine the status of this western country when it should apply for statehood. Not Congress, but the "squatters" were to be the supreme authority on the great question.
    It was on this theory that he prepared the famous Kansas-Nebraska bill. The fate of this theory and the national political results of the bill are not pertinent to this discussion, but some of the provisions of the measure determined what eventually were to be the northern boundaries of the state of Oklahoma.
    The Nebraska bill, as originally introduced in the first session of the Thirty-third Congress, provided that all that part of the territory of the United States included between the summit of the Rocky mountains on the west, the states of Missouri and Iowa on the east, the 43° 30´ north latitude on the north, and the territory of New Mexico and the parallel of 36° 30´ on the south, should be organized into a temporary government. This, it will be noticed, would have drawn the south line of the proposed territory due west from the southwest corner of Missouri, along the old compromise line, and along the northern border of the Texas Panhandle, to the New Mexico line. This was a logical division of the territory. That portion south of the line would have corresponded in area with what had originally constituted the west half of the Arkansas territory, as already described. Concerning the Indian inhabitants the original bill said: "But nothing in this act is to be construed to impair the rights of persons or property now pertaining to the Indians in that territory, so long as such rights shall remain unextinguished by treaty. . . . or to include any territory which, by treaty with any Indian tribe, is not, without their consent, to be included within the territorial limits or jurisdiction of any state or territory."
   This last provision was inserted to safeguard the elaborate privileges guaranteed under some of the early Indian treaties.⁹ The treaties stood in the way of the adoption of the bill as first reported. On January 23, 1854, Senator Douglas, in presenting the report of the committee on territories,¹⁰ said that the attention of the committee had been called to the fact that the boundary of the proposed territory of Nebraska, as in the original bill, would divide the Cherokee country, "whereas by taking the parallel of 37 degrees north latitude as the southern boundary, the line would run between the Cherokee and Osage. We have concluded, therefore, to vary the southern boundary in order not to divide the Cherokee nation."
   Thus because the United States had agreed to "possess the Cherokees forever" of some land extending half a degree north of the Missouri Compromise line, it became necessary that the southern boundary of Kansas should follow the 37th parallel of latitude, and in this manner was the northern boundary of Indian Territory fixed.

[Footnotes}

⁸Strictly speaking, the part of Texas relinquished to the United States by the compromise of 1850 did not become a portion of the Indian country, since, by the terms of that compromise, its title was vested in the United States and therefore "public domain."
⁹See Chapter IV.
¹⁰ Congressional Globe, 33d Cong., 1st Sess., p. 221

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   But one of the results of the action of the committee on territories was probably overlooked at the time, and, if not, was probably considered unimportant. A strip of land over one hundred and fifty miles long and nearly forty wide, situated beyond the limits of settlement, was of relative inimportance in those days. In fact little attention was paid to the oversight, if such it was, for many years, until it became necessary to provide a legal status for the people of the country. Between the southern boundary of Kansas and the north line of the Texas Panhandle lay a strip of land that was part of the Texas cession of 1850. By that cession it belonged to the United States. The government did not (as it might easily have done in the act of 1854 just referred to) provide for the annexation of this strip to the Indian Territory. Hence, through lack of formal recognition, this strip became "No Man's Land," with a very interesting and dramatic history all of its own.¹¹

[Footnotes]

 ¹¹There is some reason to infer that the framers of the Kansas-Nebraska bill were unconscious of the omission of this strip as a piece of country entirely separate from and unconnected with contiguous territory. The act of 1834, setting aside Indian country, had declared all territory of the United States west of Missouri and Arkansas subject to the provisions made for the Indians. When the strip north of Texas was not included within the Kansas-Nebraska territory, it is a reasonable inference that it was not distinguished from the rest of the country to the south of the parallel of 37° . On the official maps of the general land office the strip was designated as a part of Indian Territory until 1869. This was done without express authority. It was through lack of positive enactment in regard to this land that its disposition became a matter of interpretation. Had the exact status of the strip been decided twenty years before it was, before the advance of the landseekers into this region, it is not improbable that the claim of the Cherokee Indians to this piece of out-of-the-way country would have been confirmed without objection.