And Still the Waters Run: The Betrayal of the Five Civilized Tribes 9780691242149

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AND STILL THE WATERS RUN

With a new foreword by Amanda Cobb-Greetham

PRINCETON UNIVERSITY PRESS PRINCETON AND OXFORD

Copyright 1940, renewed 1968 by Princeton University Press Foreword to the new paperback edition copyright © 2022 by Princeton University Press Prince­ton University Press is committed to the protection of copyright and the intellectual property our authors entrust to us. Copyright promotes the pro­gress and integrity of knowledge. Thank you for supporting f­ ree speech and the global exchange of ideas by purchasing an authorized edition of this book. If you wish to reproduce or distribute any part of it in any form, please obtain permission. Requests for permission to reproduce material from this work should be sent to permissions@press​.­princeton​.­edu Published by Prince­ton University Press 41 William Street, Prince­ton, New Jersey 08540 99 Banbury Road, Oxford OX2 6JX press​.­princeton​.­edu All Rights Reserved First published by Prince­ton University Press, 1940 First paperback edition, 1973 New paperback edition, with a new foreword by Amanda Cobb-­Greetham, 2022 Library of Congress Control Number 2022938747 Paperback ISBN 978-0-691-23777-0 E-book ISBN 978-0-691-24214-9 British Library Cataloging-­in-­Publication Data is available Cover design by Heather Hansen Cover image: Map of Chickasaw Nation, Indian territory by R.L. McAlpine. Courtesy of the Library of Congress, Geography and Map Division. Printed in the United States of Amer­i­ca

TO MY PARENTS EDWARD P. AND LINA DEBO WHOSE CONSTANT INTEREST IN THIS BOOK AND WHOSE PATIENCE AND FORBEARANCE DURING ITS PROGRESS HAVE LIGHTENED THE LABORS OF AUTHORSHIP

CONTENTS

ix

Foreword by Amanda Cobb-Greetham

xxxix

Preface I

The Indians' Country

3

II

The White Man's Land System

31

III

The White Man's Guardianship

61

IV

The "Grafter's" Share

92 126

V The Voice of the Indian Territory VI

The Price of Statehood

159

VII

Protection by the State

181

VIII

A Tangle of Litigation

203

The Fight Between Despoilers and Defenders

230

IX

258 XI The Indian's Place in Oklahoma 291 XII The Battle for Spoils 318 351 XIII The New Trend 379 XIV The Present Situation Thirty-Two Years After: Postscript to the 1973 Edition396 416 Bibliography 425 Index X

Federal Administration within the State

MAPS Counties Comprising the Five Civilized Tribes opposite page 181 Oil Fields of the Five Civilized Tribes

opposite page 286

ILLUSTRATIONS FACING PAGE

1. Dwelling of Creek Fullblood (Department of the Interior, Annual Report, 1899, part 11, opp. p. 47; courtesy Western History Collections, University of Oklahoma Library)

14

2. Enrollment of Citizens in the Choctaw Nation (Dawes Commission, Report, 1899, p. 77)

38

3. Opening of the Creek Land Office at Muskogee, April 1, 1899 (Department of the Interior, Annual Report, 1899, part 11, opp. p. 26; courtesy Western History Collections, University of Oklahoma Library)

48

4. Nuyaka, Creek Boarding School (Department of the Interior, Annual Report, 1902, part n)

68

5. Type of Creek Freedman (Department of the Interior, Annual Report, 1902, part 11, opp. p. 5)

114

6. Pleasant Porter, Chief of the Creeks ( Courtesy Phillips Collection, University of Oklahoma Library)

132

7. Chitto Harjo, or Crazy Snake (Courtesy R. S. Cate Collection)

154

8. Typical Dwelling of Five Tribes Indians in the l 930's (Courtesy United States Indian Service)

374

FOREWORD I feel sure that this is the most impor­tant book I have ever ­written. . . . ​It’s impor­tant on account of its subject ­matter and the fact that it has been largely neglected; almost entirely neglected by writers in the history of Oklahoma, and of the other states where this same t­ hing occurred. —­Angie Debo, interview transcripts, December 12, 1981, Oklahoma State University Library I have written the worst ­things about Oklahoma that anybody ­else has ever written that ever touched a typewriter, and yet nobody seems to blame me for it. Nobody seems to hold it against me. —­Debo, interview transcripts, December 12, 1981, Oklahoma State University Library It is still true, as I said in 1949, that Oklahomans do not read; but even so, the influence of t­ hese books has reached them. —­Debo, Oklahoma: Foot-­Loose and Fancy-­Free (2nd ed., 1987)

THE TOP SHELF OF THE BOOKCASE

I, too, am confident that And Still the W ­ aters Run: The Betrayal of the Five Civilized Tribes is the most impor­tant of Angie Debo’s publications. I cannot think of another soul who has recorded such a damning account of Oklahoma’s history (though much remains to be written). And as her portrait hangs in the rotunda of the Oklahoma State Capitol, it is safe to say that the influence of her books has indeed reached Oklahomans. Like Sequoyah, W ­ ill Rogers, or even the notorious Alfalfa Bill Murray, she has become one of Oklahoma’s

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icons, though many may not be sure if what she wrote is famous ­because Angie Debo wrote it or the other way around. Regardless, she was mistaken on one count—­some Oklahomans do read. My ­father, a Chickasaw and an Oklahoman, was an inveterate reader. Newspapers, magazines, dog-­eared novels, books of poetry, dense histories, and the like littered our home, strewn across ­tables, crammed in bookshelves, and stacked in corners. No orga­nizational system ever took hold, but three par­tic­u­lar books always stood on the top shelf of his bookcase: a heavi­ly marked-up copy of Angie Debo’s And Still the ­Waters Run ([1940] 1968) sat proudly alongside Arrell Gibson’s The Chickasaws (1971) and Dee Brown’s Bury My Heart at Wounded Knee (1970). My ­father was born to a white f­ ather and Chickasaw m ­ other in 1934 and was raised on our f­ amily’s allotment just a generation ­after Oklahoma statehood. His ­family, his kinfolk, are the ­people of Debo’s story of systemic racism, ­violated treaties, and the trustee-­sanctioned breakdown of the Five Tribes through legalized robbery.* Her story was of his homeplace, his ­family, his tribe, his state, and even his country. And it ­shaped his understanding of his possibilities in the broader world. Sometimes, history hurts, and I know he felt that pain. I do, too. Over the years, I have turned to And Still the ­Waters Run * Note to readers regarding terminology and identity: Whenever possible I use specific names, such as Chickasaw, Choctaw, etc. Over the course of my own lifetime, scholarly preferences for general terminology have moved from Indian to American Indian to Native American or Native to Indigenous. I use these interchangeably, but tend to prefer Native American, Native, and Native peoples. When referring to a given sovereign, political, and cultural entity, I use Native nation or Tribal nation, capitalizing to highlight sovereignty and demonstrate respect. I occasionally shorthand Tribal nation to Tribal, capitalized. I have encountered scholars who insist on using nation or nations in every case regardless of the opinion of the group in question. For example, the Cherokee Nation, Chickasaw Nation, Choctaw Nation, Muscogee (Creek) Nation, and Seminole Nation collectively call themselves the Five Tribes, not the Five Nations. I once succumbed to editorial pressure on this point in a particular essay and have regretted it ever since. The most appropriate term is always what the sovereign calls itself or what the group of sovereigns call themselves as a collective. In the state of Oklahoma, which was once Indian Territory, the terms Indian and Tribe are regularly used in everyday life by Native Americans and with familiarity and respect. The term Indian country has specific legal connotations as well as general cultural connotations and common usage.

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many times. Although the words never change, its significance to me does. When I read it as a scholar, or as my f­ather’s ­daughter, or as a Chickasaw, my perspective shifts. When and where ­matters, too: reading the book from some remove, having left Oklahoma for a professorship in New Mexico, or reading it anew a de­cade ­later when working for my tribe. More than once, Debo described her view of Oklahoma as “Amer­i­ca in microcosm,” as a place where “history telescopes, within the lifetime of men now living, the w ­ hole story of the United States.”1 Debo’s reference to a telescope seems important—­an instrument of distance, focus, precision, and clarity. Such confidence! For me—a Chickasaw citizen, Oklahoman born-­and-­bred, and Native American Studies professor at the University of Oklahoma—the lens through which I read this land, its history, and its ­peoples has always been an up-­close kaleidoscope, ever-­ shifting in color, form, shape, and meaning. But Debo’s confidence helps ground our understanding of the facts of this place. By reissuing And Still the ­Waters Run, Prince­ton University Press has—­like my f­ather—­placed Debo’s book in a special place on its bookshelf. I hope in this foreword to describe the facts of the book and its history—­what it says and what we know about its author. But much has happened since its publication. It is impor­tant to reflect, too, on why it remains significant across time and place—to academe; to the descendants of the p ­ eople of her story; to the Five Tribes, whose strength and sovereignty persist; and to all who call this land home.

THE PUBLICATION

Debo completed the manuscript that would become And Still the W ­ aters Run in 1936 and submitted it to the d ­ irector of the University of Oklahoma Press, Joseph A. Brandt, who 1 Quoted in Shirley A. Leckie, Angie Debo: Pioneering Historian (Norman: Univer­ sity of Oklahoma Press, 2000), 111.

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had previously published her doctoral dissertation, the award-­ winning The Rise and Fall of the Choctaw Republic. Brandt had support for publishing Debo’s new work from none other than the commissioner of Indian Affairs, John Collier, and­ others in the Department of the Interior, but the president of the University of Oklahoma, William Bizzell, and his special assistant, history professor Morris Wardell, intervened. Wardell wrote to Brandt: “The book is history, and the facts are ­there, but,” he added—­concerned about litigation and incurring ill w ­ ill from prominent and wealthy supporters of the university—­“it is dangerous to write in a book about it.”2 Brandt defended the manuscript as “honest in intention and execution,” arguing it was history “not exposé” and adding that the manuscript had “all moral right on its side.”3 Brandt’s defense of Debo’s work did not prevail, and the University of Oklahoma Press did not publish her manuscript. In 1940, however, Brandt became the director of Prince­ton University Press, and he had not forgotten what he saw as an impor­tant history to tell. ­After persuading Debo to make the changes he saw as necessary as defense against possible legal action, he published her now-­classic book. Brandt predicted at the time that the public would come to understand the book as “among the most significant histories published in this c­ entury.”4 What exactly was so controversial? The story Debo chronicled was about the vast and ongoing dispossession of the Choctaw, Chickasaw, Cherokee, Creek, and Seminole nations, and her telling of it held a mirror up to the events surrounding both the legalized devastation of ­these nations and the formation of the new state of Oklahoma. Its controversy ­rose from the power of her truth-­telling, the broad strokes of which alone are revealing. 2 Morris Wardell to Joseph A. Brandt, July 19, 1937, University of Oklahoma Press Collection, Western History Collection, University of Oklahoma, Norman, Oklahoma. 3 Joseph A. Brandt to Morris Wardell, July 20, 1937, box 32, University of O ­ klahoma Press Collection, Western History Collection, University of Oklahoma, Norman, Oklahoma. 4 Quoted in Leckie, Angie Debo, 191.

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Despite fierce re­sis­tance, the United States forcibly removed t­hese Tribal nations from ancestral homelands in the Southeast to new lands set aside as Indian Territory.5 The Trail of Tears to t­ hese new lands is a prominent and tragic chapter in American history, but it was accompanied by treaty promises6 that t­ hese Native p ­ eoples would possess new homelands as long as the grass grows and the w ­ aters run7 and, as their treaties provided, never be made part of any state. ­These ­were power­ful rights to land and autonomy that had few parallels in federal law. According to Debo, ­these new homelands included “the eastern half of the area that now constitutes that state of Oklahoma, a territory im­mensely wealthy in farmland and forest and coal mines, and with untapped oil pools of incalculable value.”8 Unlike most historians of the day, she did not treat the Native occupants of t­ hese lands as nameless figures; she took the time to detail the Five Tribes’ ­legal and government systems: “They ruled themselves and controlled this tribal property ­under constitutional governments of their choosing”9 and treaties and patents that expressly guaranteed their po­liti­cal, cultural, and economic autonomy and integrity within the US ­legal system. Debo’s engagement with Tribal nations as dimensional socie­ties was novel at the time and, ultimately, of profound significance in her work. Following the American Civil War, the United States and 5 As a group, the members refer to themselves as the Five Tribes. The terms “tribe” and “Tribal nation” are used throughout according to the preferred usage of t­ hese specific entities. 6 18-9526, McGirt v. Oklahoma (07/09/2020), https://­www​.­supremecourt​.­gov​ /­opinions​/­19pdf​/­18​-­9526​_­9okb​.­pdf. 7 The phrase “as long as the grass grows and the ­water runs” is not used in any treaty. According to Howard Zinn, President Andrew Jackson deployed an army major to tell the Choctaw and Cherokee Indians to leave their territory, promising them that they would be allowed to stay in their new territory, “as long as the grass grows and the ­water runs,” a phrase that has become symbolic to Tribal nations that w ­ ere removed to Indian Territory on the Trail of Tears. Howard Zinn, The P ­ eoples’ History of the United States (New York: Harper & Row, 1980), chap. 7. 8 Angie Debo, And Still the W ­ aters Run: The Betrayal of the Five Civilized Tribes (Prince­ton, NJ: Prince­ton University Press, 1973 edition), ix. 9 Debo, And Still the ­Waters Run, ix.

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the Five Tribes formed new treaties to normalize postwar relations—­treaties that, among other t­hings, required significant land cessions from the Five Tribes and opened Indian Territory to the railroads, thus unlocking the gates to a flood of non-­Indian settlement. The ensuing pressures on the Tribes’ ability to self-govern recalled the previous dispossession of ancestral lands to the east. ­These ­were the last of the Five Tribes’ treaties. In 1871 Congress acted to seize primacy in this area, and from that point forward, Tribal affairs ­were a ­matter of US domestic policy, not foreign, and w ­ ere subjected to Congress’s legislative power. That power was checked not by the enfranchisement of Tribes or Native Americans within the national p ­ o­liti­cal system but only by an amorphous trust responsibility to act in the best interest of ­those subjected to Congress’s laws. Congress used its new powers almost immediately to work for the destruction of Tribal land bases. Seen as the perfect way to solve what the United States called its “Indian Prob­ lem,” it enacted the Dawes Allotment Act to break Tribal communal occupancy rights and, by vari­ous additional means, coerce assimilation into US economic and ­legal systems. This came in stages to Indian Territory. Congress’s first step was to claim lands in the west as Oklahoma Territory, confining Indian Territory still retained by the Five Tribes to its east. Congress next reor­ga­nized how the United States held and exercised its title to Oklahoma Territory and opened it for non-­Native settlement, a pro­cess that included the much romanticized and dramatized theater of the “Sooners” and Oklahoma Land Runs—­the first of which occurred in 1889, only two years a­ fter Congress passed the Dawes Act. ­Things played differently in Indian Territory, where Congress did not have such direct authority. White settlers grew increasingly frustrated over the incon­ve­nience of Tribal rights, and they persisted in efforts to break them. Casting themselves as victims, t­ hese “Boomers” used, among other tactics,

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the eastern press to create sympathy for opening Indian Territory, and in 1898, Congress ratified the Curtis Act, which purported to do just that. In practice, though, the Curtis Act amounted less to Congress’s applying the Dawes Act to the lands of the Five Tribes than to using vast powers of coercion to abuse trust responsibilities to overcome Tribal re­sis­tance. By t­ hese means, the federal government seized control of Indian Territory, and in came the Boomers. It was this unique allotment pro­cess that initially interested Debo. She began her research with the Dawes rolls, the pro­cess through which the government determined who was and who ­wasn’t eligible for an allotment of Five Tribes’ lands. In it, she found a perverse system of chaos and corruption. When the rolls closed in 1907, Debo found, the true “orgy of exploitation” began—­the pro­cesses of legalized theft that ­were to become the focal point of her research for And Still the ­Waters Run. The scope of dispossession was stunning,10 but she focused on the methods used—­methods woven into to the very fabric of the law. In 1908, for example, Congress handed jurisdiction over Five Tribes’ lands probate to the Oklahoma county courts, placing the citizens of ­these nations at the mercy of ­every pos­si­ble group that worked to exploit state law against them. “Rival combinations of guardians and attorneys fought each other to control the courts” and “public sentiment supporting the business was strong enough to dominate the legislature,” even implicating “the press” and “the church” in “the profits of the unholy traffic.”11 The assault was comprehensive and corrosive, and she documented it all. The magnitude of the plunder and the “rapidity of the spoilation”12 that Debo found in “old rec­ord files . . . ​tied with red tape” made her feel that “every­thing she touched was 10 Angie Debo, Oklahoma: Foot-­Loose and Fancy-­Free (Norman: University of Oklahoma Press, 1949), 43. 11 Debo, Oklahoma: Foot-­Loose, 43 12 Debo, And Still the ­Waters Run, x.

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slimy.”13 She identified ­people involved and, in the manuscript she submitted to the University of Oklahoma Press, named names—­including many who ­were prominent and power­ful. This prompted Brandt to insist “that the purpose of the book was to expose the conditions of the Indians and not to become involved in the issues for justice,” which he deemed “a ­matter for the courts to decide.”14 While she redacted the names for purposes of Prince­ton’s publication, she remained a frank speaker and advocate for policy reform throughout her life. “Historians,” she once opined, “have been inclined to pussy-­ foot in this field of Indian exploitation.”15 Rarely did Angie Debo mince words. The blunt, forthright writing style that characterizes And Still the W ­ aters Run pervaded her scholarly output, which included nine books, a coauthored volume, three edited collections, and dozens and dozens of articles and book reviews. On top of this, she engaged in po­liti­cal advocacy on behalf of Native p ­ eoples throughout her ­career. Debo’s firm opinions, frank speech, volume of output, and focus on topics specific to Indian Territory and Oklahoma ­ought to make the delineation of the legacy of her work relatively straightforward. But ­there is more to the story. Consider the range of perspectives offered by her publications between 1934 and 1949. The Rise and Fall of the Choctaw Republic (1934), And Still the ­Waters Run: The Betrayal of the Five Civilized Tribes (1940), and The Road to Disappearance: A History of the Creek Indians (1941) are scholarly histories of the Five Tribes. The list also includes, however, Tulsa: From Creek Town to Oil Capital (1943), Prairie City: The Story of an American Community (1944), and Oklahoma, Foot-­Loose and Fancy-­Free (1949). ­These three take a more “progressive” tone than the first three in their depiction of Oklahoma’s development as a state. Moreover, she served for a time as 13 Quoted in Maria Laubach and Joan K. Smith, “Angie Debo: An Unlikely Educator and Scholar of Indian History,” American Educational History Journal 43, no. 2 (2016): 173. 14 Quoted in Laubauch and Smith, “Angie Debo,” 174. 15 Debo, Oklahoma: Foot-­Loose, 43.

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director of the Federal Writers’ Proj­ect for the state of Oklahoma, tasked with the production of Oklahoma: Guide to the Sooner State.16 ­These other volumes offer romanticized depictions of Oklahoma’s “pioneer spirit,” which Debo embraces as her own, but which is the same spirit many would say gave rise to the depredations she meticulously chronicled as a scholar. Notable scholar of western history, Patricia Nelson Limerick, has attempted to crack the “puzzle” of Debo, to reconcile what she calls the “two public-­record Angie Debos: Angie Debo #1 . . . ​who wrote critically and openly about the cruel, manipulative pro­cess of dispossession that made the modern state of Oklahoma pos­si­ble, and the Angie Debo #2 . . . ​who wrote cheerfully about pioneer courage.”17 Limerick’s excellent analy­sis of the “two Debos” hinges on an event that looms large in the state’s construction of public memory and history: the symbolic wedding of Miss Indian Territory (with her overtly celebrated enormous dowry) to Mr. Cowboy Oklahoma, performed as part of Oklahoma’s statehood day cele­bration and frequently reenacted to this day. The per­for­mance makes sense only if diverse Indigenous identities and peoplehood are represented by a singular “Indian Princess”—­who, by law, now belongs to Mr.  Oklahoma through the sanctified rite of marriage and whose governments and cultures are displaced to the past by the inevitable march of American pro­gress and the indomitable pioneer spirit. “If you have a state that originates in the marriage of Indian Territory to Oklahoma Territory, you have a paradox that no one is ­going to be able to resolve,” writes Limerick, and no “creative analy­sis and interpretation is g­ oing to reduce its oddity or discomfort.” She likens the image of Miss Indian Territory and Mr. Cowboy Oklahoma to And Still the W ­ aters Run and Prairie City. “The books are not ­going to merge and reveal a concealed harmony, but if you shift your attention back and Leckie, Angie Debo, 82–127. Patricia Nelson Limerick, “Land, Justice, and Angie Debo: Telling the Truth to—­ and about—­Your Neighbors,” ­Great Plains Quarterly 21, no. 4 (Fall 2001): 261-273. 16 17

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forth between them, you get a telling glimpse of Oklahoma.”18 Patricia Loughlin finds satisfaction in Limerick’s comparison, stating that the “divergent perspectives of Oklahoma history should not be forcibly joined,” that they stand symbolically, “much as the marriage of the twin territories—as a reminder of diversity, variety, and what Debo called ‘the pursuit of truth.’ ”19 Limerick finds aspects of dissident Debo and celebratory Debo in Oklahoma: Foot-­Loose and Fancy-­Free, and seems to reconcile the two in her discussion of Debo as “place-­centered,” concluding that sometimes, she told “the painful, historical truth to her neighbors” and sometimes she told them “another truth—­that she valued and admired them.”20 Debo consciously styled herself as truth-­teller. “Historian, discover the truth and publish it” is engraved on her tombstone, ­after all.21 ­There is a ­great deal that is useful in Limerick’s analy­sis. As an Oklahoman, I agree that Debo’s legacy makes sense with reference to place. And yet, I can only see one Angie ­Debo—­a woman with a complexity that is mirrored in so many of my fellow Oklahomans. I view her work as rooted in place as well as in and across time, which becomes clearer if we understand history as lifetimes.

UNDERSTANDING HISTOR Y THROUGH THE LENS OF LIFETIMES

I begin my own classes by asking students, most of whom identify as Native American, to think about the oldest person they have ever known. And I mean ­really known, not just someone whose lap they sat in as a baby. I tell them about my great-­ aunt Hattie, in-­lawed to me through her marriage to my U ­ ncle Henry, a Chickasaw farmer and rancher who was active in the Limerick, “Land, Justice, and Angie Debo,” 271. Patricia Loughlin, Hidden Trea­sures of the American West: Muriel H. Wright, Angie Debo, and Alice Marriott (Albuquerque: University of New Mexico Press, 2005), 108. 20 Limerick, “Land, Justice, and Angie Debo,” 272. 21 Quoted in Limerick, “Land, Justice, and Angie Debo,” 272. 18 19

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restoration of Chickasaw government in the 1970s and ’80s. Aunt Hattie was born in Indian Territory in 1904 and died only miles from where she was born, just shy of her 105th birthday. Then, we talk about the history of this place through the lens of her lifetime, and suddenly a span of one hundred years becomes nothing, merely the length of one person’s life. Aunt Hattie’s ­father moved to Indian Territory to sell liquor to Indians, and both of his ­daughters grew up to marry Chickasaw men and become active parts of the Chickasaw community. If the outlines of Aunt Hattie’s life seem at all odd or incongruent, please know that she did not find it so. Nor did my ­father, who was deeply proud of being Chickasaw, Oklahoman, and American. Like so many Native Americans, he served in the US military and understood his identity as both fact and strength, not a ­matter of crisis. As I imagine teaching this new edition of And Still the ­Waters Run to my students— as the work of Angie Debo, a person firmly rooted in her time and in the physical and conceptual spaces she occupied—­this is the lens I turn on the ­woman and her work, a lens that does not isolate its subjects in time but that bridges it through the growth and experience that any one life contains.

DEBO AND “PIONEER PLACES”

Angie Emarthla Debo was, in fact, an ­actual pioneer. In 1899, at nine years of age, she journeyed to the town of Marshall in Oklahoma Territory in a covered wagon with her ­family. Her biographer, Shirley Leckie, reports that Debo’s diary rec­ords the hardships of pioneer life as well as the flowers planted with her ­mother, the call of the mockingbird in spring, and the “blue the way Oklahoma skies can be.”22 ­After graduating with a bachelor’s degree in history from the University of Oklahoma in 1918, Debo pursued her gradu­ate 22

Quoted in Leckie, Angie Debo, 15.

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education at the University of Chicago, not only to work with the highly regarded faculty but b ­ ecause she also wanted to experience urban life.23 ­After completing her master’s degree in history, Debo taught at the demonstration school at West Texas State Teachers’ College in Canyon, Texas, ­because it was familiar to her as a “pioneer place” that allowed her to absorb “the pioneer spirit.”24 While at West Texas State, she completed her doctorate in history at the University of Oklahoma in 1933, and its university press published her dissertation, The Rise and Fall of the Choctaw Republic, a year ­later. Her book received the prestigious John  H. Dunning Prize from the American Historical Association, but Debo did not receive a tenure-­track position, then or l­ater.25 “­Women are sometimes on history faculties,” she wrote. “How do they get ­there?”26 That Debo, so eminently qualified, never received an offer served as a source of consternation to her and continues to serve as a rallying point for female historians ­today. Debo stayed in Oklahoma. She held vari­ous jobs, including a temporary position as a curator of maps at Oklahoma State University. She took on occasional public history assignments to support herself, such as Oklahoma: A Guide to the Sooner State—an undertaking of the Federal Writers’ Proj­ect, which kept so many Depression-­era writers afloat27—­and she wrote Oklahoma, Foot-­ Loose and Fancy-­ Free for a Rocke­ fel­ ler Foundation fellowship offered by the University of Oklahoma Press. Even ­these few facts refocus our perspective on Debo and the variety of genres her work includes—as well as her overarching commitment to documenting Indian Territory and Oklahoma history as an in­de­pen­dent scholar.28 Debo lived most of her very long life in Oklahoma and a Loughlin, Hidden Trea­sures of the American West, 77. Angie Debo, interviews with Glenna Matthews and Gloria Valencia-­Weber, transcripts, 1981–85, Angie Debo Collection, Oklahoma State University Library, Stillwater, Oklahoma (hereafter cited as ADT), February 16, 1984, 2. 25 Loughlin, Hidden Trea­sures of the American West, 86. 26 ADT, December 12, 1981. 27 Leckie, Angie Debo, 82–85. 28 Loughlin, Hidden Trea­sures of the American West, 69–91; Leckie, Angie Debo, 82–127. 23 24

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large chunk of it in the town of Marshall, banging out impeccably researched histories on the typewriter in the back bedroom of her parents’ home. She bore the p ­ eople of Marshall tremendous affection, noting in her preface to her only novel, Prairie City: “I hope the ­people of my community, the finest ­people I have ever known, w ­ ill not be disappointed in this book they have helped me write.”29 Marshall, on which Prairie City was based, was a tiny settlement, and Debo participated fully as a community member. She taught Sunday school and served as lay minister at her church. She cared for her ­mother, and her neighbors cared for her in her last years; she once placed an ad in the Marshall newspaper asking her neighbors not to call or visit ­until after­noon, so she could get her writing done.30 The community celebrated their “Queen of the Prairie City” and placed her front and center in the annual “Prairie City Days” parade.31 ­These facts illustrate just how deeply her work was rooted in the pioneer-­space of Oklahoma, and particularly in her love for the ­people of that place.

DEBO IN ACADEMIA

Debo was deeply influenced as well by her professor Edward Everett Dale, who was a lifelong mentor and correspondent. Dale received his doctorate at Harvard ­under the direction of none other than Frederick Jackson Turner, perhaps the most influential historian of the Progressive Era. When Turner delivered his address, “The Significance of the Frontier in American History,” at the 1893 meeting of the American Historical Association in Chicago, he shifted the predominant understanding of Amer­i­ca’s history from a model that continued Eu­ro­pean colonial tradition to a new 29 Angie Debo, Prairie City: The Story of an American Community (Norman: University of Oklahoma Press, 1998 edition), ix. 30 Leckie, Angie Debo, 151. 31 Leckie, Angie Debo, 152–53.

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and exceptional t­ hing, something made uniquely American— in his telling—by the pro­cesses of conquering, taming, and transforming a vast wilderness into civilization. To Turner, the frontier was “the meeting point between savagery and civilization,” the line where frontiersmen w ­ ere forced to return to life as brute hunters and ­later “advance” or “pro­gress” through stages of social evolution—­that is, to agriculturalists, industrialists, cap­i­tal­ists, and so forth—­each time leaving Eu­ ro­pean traditions further b ­ ehind and each time becoming more indigenously American. For Turner, a new and uniquely American character and spirit ­were forged on the frontier.32 From his perspective, ­these “American traits” separate “the savage” from “the civilized,” employing an inherently racialized and racist framework to cast Native ­peoples as inferior and mentioning Tribal nations only in his generalized declamation of how wilderness first “masters the colonist” by putting the frontiersman in the “log cabin of the Cherokee and Iroquois” before he begins “planting Indian corn” and taking “the scalp in orthodox Indian fashion.” As Loughlin aptly notes, Turner’s thesis became “at once a challenge and a call.”33 It challenged previous interpretations of American history and called for placing the American West at the center of national history. Dale answered Turner’s call, applying the frontier thesis to Oklahoma history and arguing “only in Oklahoma was the [Turnerian] pro­cess rapid enough to take place within the memory of one still living generation.”34 Unlike Turner, though, Dale was actually interested in Native American history—so much so that he offered the first Native American history course at the University of Oklahoma and encouraged his students, Debo included, to pursue research in this area. But Dale never challenged the racist underpinning 32 Frederick Jackson Turner, “The Significance of the Frontier in American H ­ istory,” Annual Report of the American Historical Association (1893), 197–227. 33 Loughlin, Hidden Trea­sures of the American West, 75. 34 Angie Debo, “Edward Everett Dale: The Teacher,” in Frontier Historian: The Life and Work of Edward Everett Dale, ed. Arrell Morgan Gibson (Norman: University of Oklahoma Press, 1975), 28.

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of Turner’s thesis, instead continuing to regard Native ­peoples as merely romanticized “vestiges of the ­frontier.” Turner’s influence on Dale’s scholarship is plain, and that scholarship, in turn, contributed to Debo’s analyses. Her scholarship was rooted in her coursework and conversations with Dale, and it was Dale’s recommendation that led her to Indian archives and her first personal encounter with an Oklahoma and Amer­i­ca that existed outside her experiences of pioneer life in Marshall and in west Texas. It led her to Indian country.35 Debo submitted the manuscript that would become And Still the W ­ aters Run for publication in 1936, twelve years ­after the Indian Rights Association’s report Oklahoma’s Poor Rich Indians: An Orgy of Graft and Exploitation of the Five Civilized Tribes—­Legalized Robbery, and eight years a­ fter the publication of the Meriam Report to Congress. T ­ hese documents detailed the degradation inflicted by federal assimilation policies, particularly since the Dawes and Curtis Acts, reporting dismal conditions throughout Indian country and laying responsibility with failed US policies. The Meriam Report is credited with shifting federal policy and bringing an end to allotment, which was formalized with Congress’s passage of the Indian Reor­ga­ni­za­tion Act (IRA). Thematically, Debo’s work continues the narratives of ­these reports, and a direct link may be found in her phrase “orgy of exploitation” which echoes the title of the Indian Rights Association’s report. But perhaps more impor­tantly, Debo’s argument in And Still the ­Waters Run intersects with Turner’s thesis in surprising ways. Debo directly links Turner’s notion of pro­gress to corruption in Oklahoma, saying, “If the Oklahoma settlers could build their personal fortunes and create a g­ reat state by destroying the Indian, they would destroy him in the name of all that was selfish and all that was holy.”36 She contends that “. . . ​ the reaction of this pro­cess [of dispossession] upon the ideals and standards of successive frontier communities is a ­factor 35 36

Loughlin, Hidden Trea­sures of the American West, 73. Debo, And Still the ­Waters Run, 93.

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in the formation of the American character that should no longer be disregarded.”37 According to Debo, the ­distinctively American character forged on the frontier was flawed. As Loughlin remarks, “Debo’s reading of the evidence called the Progressive historians’ own notion of pro­gress into question.”38 By diverging from the work of Turner and Dale, even describing the pro­cess as Amer­i­ca’s “real imperialism,”39 Debo stands as a transitional figure between Turner’s frontier paradigm and the “New Western History” represented by the scholarship of Richard White, Patricia Limerick, and ­others who see the West as an evolving place and focus on the damage resulting from American imperialism and conquest. And unlike Turner, Dale, and other historians of her era, Debo included anthropological sources, making her scholarship an early repre­sen­ta­tion of ethnohistory.40 Her sympathy for Native ­peoples and desire to write from a Native perspective w ­ ere almost unpre­ce­dented in historical scholarship and link her to the focus on settler colonialism prevalent in Native American and Indigenous Studies ­today. Her impact in ­these academic disciplines is power­ful testament to the scope of her influence and insight, but it remains complicated and merits a closer look.

DEBO’S LEGACY T ­ O D AY

More than eighty years have passed since the first publication of And Still the W ­ aters Run. It can be difficult to read, particularly when considering Debo’s adoption in Oklahoma: Foot-­ Loose and Fancy-­Free of a seemingly unmodified version of Turner’s thesis: “Oklahoma is more than just another state. It is a lens in which the long rays of time are focused into the brightest of light. In its . . . ​clarity . . . ​facets of the American Debo, And Still the ­Waters Run, x. Loughlin, Hidden Trea­sures of the American West, 96. 39 Quoted in Leckie, Angie Debo, 109. 40 Loughlin, Hidden Trea­sures of the American West, 86. 37 38

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character stand more clearly revealed. . . . ​For in Oklahoma, all the experiences that went into the making of the nation have been speeded up. ­Here all the American traits have been intensified.”41 This passage is far from the only echo of Turner’s thesis through her work. By Turner’s telling, white frontiersmen—­like James Fenimore Cooper’s Natty Bumppo—­act as Indians and then become indigenous to their new land as a­ ctual Native ­peoples dis­appear entirely.42 The titles of two of her books from the same period, The Road to Disappearance: A History of the Creek Indians and The Rise and Fall of the Choctaw Republic, reveal Debo’s having viewed Native Americans as “a vanis­hing race.” The titles are consistent with the perspective of reformers at the time, that the “old ways” w ­ ere gone, and assimilation was the only ­viable choice. While Debo is not considered a reformist, discourse on pro­gress and civilization pervades this book. In the second paragraph of the preface, for example, Debo describes the Five Tribes as having “attained a degree of civilization that made them . . . ​the boast of the Indian office.”43 Meanwhile, she characterizes allotment as “a gigantic blunder” but also as a “hopeful experiment in Indian development,” and she does so in a single sentence.44 If she saw assimilation policies like allotment as an experiment in “Indian development,” she seems to have seen Native ­peoples as in need of development and perceived herself as a champion in that effort—in short, as a reformer. Debo’s con­temporary, Choctaw historian Muriel Wright, criticized her for using the language of decline at the time.45 ­Today, the discipline of history explic­itly rejects Turner’s position. To my students, Debo’s reformist language is problematic, at best. Even worse is her apparent ac­cep­tance of Debo, Oklahoma: Foot-­Loose, ix. James Fenimore Cooper, The Leatherstocking Tales (New York: Houghton, Mifflin and Co., 1898–99). 43 Debo, And Still the ­Waters Run, ix. 44 Debo, And Still the ­Waters Run, x–­xi. 45 Loughlin, Hidden Trea­sures of the American West, 55. 41 42

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the Dawes Commission’s use of a race-­based and inherently racist classification system to control Native identity. The commission referenced a person’s “blood quantum” or degree of Indian blood to assess individuals’ “degree of civilization” and their “competency or incompetency” to manage their own ­legal affairs.46 My students ­will not find the language of this system surprising in the least; even now, many Tribal nations. use blood quantum as a criterion for citizenship, which is their right as sovereign entities but which remains, nonetheless, controversial. Setting that aside, what the Dawes Commission did was to devise and impose its own system for the race-­based identification and classification of the Five Tribes’ citizens and to effectively reject the nation’s own standards for recognizing its citizens. Debo does note the Five Tribes’ frustration with the system, but she does not question the assumptions and racialized concepts it applied—­that “mixed blood” individuals ­were more civilized and competent to manage their own business interests (and more likely be grifters themselves) and “fullbloods” w ­ ere “backwards,” not competent to manage their own business interests, and primitively pure and innocent. Her adoption of this framing is even more troubling when she represents the state of Oklahoma as wholly accepting of Native Americans, discussing the relationship as one of assimilation and erasure. In a chapter titled “The Indian’s Place in Oklahoma,” she claims: “The cultural amalgamation of the two races was the most successful. Prob­ably more than any other state in the Union Oklahoma has accepted the cultural heritage of the Indian, and has used it as the background of its own tradition.” Debo goes on to pronounce that the “spiritual ­union of the two races was accepted from the beginning,”47 offering the bizarre statehood wedding ceremony as evidence for her thesis. 46 Katherine Ellinghaus, Blood W ­ ill Tell: Native Americans and Assimilation Policy (Lincoln: University of Nebraska Press, 2017). 47 Debo, And Still the ­Waters Run, 291.

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Is it pos­si­ble that Debo does not see Oklahoma’s “orgy of exploitation” through a racial lens? She nods to the existence of racism but contends, “If ­there ­were ­people in Oklahoma racially prejudiced against Indians, their influence was more than offset by t­ hose who idealized them.”48 What? Is this the language of truth-­telling, so passionately espoused by Debo? The Dawes enrollment pro­cess, in no uncertain terms, assessed identity by fractions of blood and darkness of skin. Racial prejudice against Native Americans was and is alive and well in Oklahoma. The wedding between Miss Indian Territory and Mr. Cowboy Oklahoma? Shotgun. Perhaps Debo, who wrote that the Five Tribes “became known as the Five Civilized Tribes to distinguish them from their wild neighbors of the plains,”49 believed that the semi-­autonomous republics of the Southeast had “attained a degree of civilization”50 that exempted them from discussion of race? Debo’s citing of the Oklahoma constitution suggests so: “The constitution, which expressly legalized the segregation of the colored race, defined the term ‘colored’ to apply only to persons of African descent and ‘white race’ to include all other persons.”51 Leaving aside for the moment the invidious racism baked into the Oklahoma constitution, it is striking that Debo uses this authority to support her assertion that Oklahoma “accepts” Indians while referring to the “­union of the two races” dramatized in a mock wedding in the same paragraph. First, the segregationist language to which she is referring is part of a clause on education, not marriage. Second, her banal ac­cep­tance of Oklahoma’s segregationist systems cannot be ignored as problematic, even when considered in place and time. Third, as is well documented, marriage—­the ­actual institution, not a mock dramatization—­was consistently used as a means to divest the Tribal nations of Oklahoma of their Debo, And Still the ­Waters Run, 293. Debo, And Still the ­Waters Run, 5. 50 Debo, And Still the ­Waters Run, ix. 51 Debo, And Still the ­Waters Run, 292. 48 49

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wealth,52 and the Oklahoma segregationism Debo cites to suggest interracial good ­will was actually a means for legalizing what would other­wise have been considered miscegenation—­a lucrative side industry form of the practice, but miscegenation all the same. What I glean from Debo h ­ ere and throughout And Still the ­Waters Run is that, for her, the dispossession of Five Tribes was a moral outrage, certainly, but that her moral outrage seems aimed more at what she saw as the immoral and unjust implementation of race-­based federal assimilation policies than the intrusion and paternalism of the policies themselves. Consider that Debo, more than once, asserted that “the real colonization of Oklahoma by a civilized p ­ eople began with the arrival of immigrant Indians from the Southeast.”53 She understood the Five Tribes as “civilized” republics whose treaties should have been honored. While it pains me to say it, she perhaps even understood the citizens of the Five Tribes as pioneers. This reading is consistent with her WPA proj­ect in the 1940s—­editing the Indian-­Pioneer Papers, a compilation of oral history interviews conducted with citizens of the Five Tribes and white homesteaders who ­were living at the time of statehood—­the papers are not or­ga­nized into separate sections but stand together as memories of pioneers. This interpretation may just solve Limerick’s “puzzle” of Debo: If the dissident Debo writes of the exploitation of Indians and celebratory Debo writes about pioneer hardihood, and if one understands the Indians depicted in And Still the W ­ aters Run as pioneers, then perhaps ­there is no “puzzle” and paradox ­after all. Indeed, Debo’s understanding of Five Tribes citizens as “Indian-­Pioneers” introduces yet another troubling consideration: her relative silence with re­spect to the dozens of other Tribal nations devastated by Oklahoma’s formation as a state. Of ­these nations, some ­were forcibly and tragically removed to Indian Territory; ­others know this place as their ancestral 52 David D. Smits, “ ‘Squaw Men,’ ‘Half-­Breeds,’ and Amalgamators: Late Nineteenth-­ Century Anglo-­American Attitudes ­toward Indian-­White Race-­Mixing,” American Indian Culture & Research Journal 15, no. 3 (1991): 29–61. 53 Debo, Oklahoma: Foot-­Loose, 16.

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home and have their own perspectives on the removed nations, and the Five Tribes particularly, that w ­ ere placed atop their homelands. The members and citizens of each of ­these Tribal nations experienced the policies Debo decries, but she is largely s­ ilent on their behalf. Neither does Debo meaningfully address the experiences of African Americans and Afro-­Indigenous ­people in Indian Territory, many of whom ­were enslaved by Five Tribes citizens ­under Five Tribes’ laws and many of whom w ­ ere tied to the Five Tribes racially and culturally. Alaina Roberts, an impor­tant scholar in the emerging lit­er­at­ ure on African American and Afro-­Indigenous experiences in Indian Territory and Oklahoma commented that she wished Debo “had included more about how ­these same speculators and government officials similarly stole from and exploited Indian freedpeople.”54 Debo’s neglect of t­ hese ­matters should not be ignored. Nor should we ignore the fact that Debo’s ­later writings suggest a much more nuanced and evolving understanding of identity issues and an ac­cep­tance that federal policy should be driven not by the federal government but by ­those it affects the most. Her ­later writings are redeeming on this point, but they are, unfortunately, cited far less frequently and substantively than And Still the W ­ aters Run. Debo is accepted as an authority and her research as unimpeachable in this area, and that her most significant book contributes, in any way, to the perpetuation of the ideology of savagism and civilization and its application to notions of authenticity, inferiority, and superiority pains me. More objectively, it unquestionably complicates our reading of her legacy and must be integrated into it, even as she is rightfully admired for the good work she did and inspired. She was a strong ­woman, and certainly strong enough to take criticism. Debo, herself, acknowledged, “A good many Oklahomans w ­ ill accept severe criticisms if it’s true.”55 And so I offer mine, Oklahoman to Oklahoman. 54 55

Alaina Roberts, e-­mail to author, March 29, 2022. ADT, April 8, 1983, 13.

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What this discussion makes clear is that Angie Debo did not write from the “Indian perspective,” a cliché stated so often by so many that is accepted as truism. No, she did not write from our perspective—­but she took our side. She looked at graft and fraud and called them by name, and her need to call out right and wrong grew into a need to right the wrongs she exposed. She found plenty in Oklahoma’s Indian country, and, over time, the language of reform so pervasive in And Still the ­Waters Run evolved into the language of a truer and Native-­centric advocacy. While her exclusive focus on the Five Tribes can be criticized, Roberts notes that Debo “­couldn’t do every­thing”—­a si­mul­ta­neously fair and generous observation. Roberts maintains that the framework Debo built does “leave room for the work of ­people”56 like David Chang, Tiya Miles, and ­others whose exceptional scholarship is altering the praxis of history ­today. Miles considers Debo “symbolically significant,” noting she ­hasn’t used her work in a while but remembers feeling inspired to follow her example when she was a student, saying, “She set the ­table for us.”57 As such, she provided a foundation for work yet to be done. And I am personally encouraged by her good work outside of academia, which ­will be impor­tant to my students who believe research should ­matter in the world. In a series of interviews conducted late in her life, she recalled purchasing postage stamps “like they ­were wall­paper,” remarking that she knew of no better way of spending money.”58 “Righting age-­ old wrongs for one small tribe ­after another seems like a slow way to get around,” but Debo was in the fight for the long haul. She once observed that if ­people win “in what seems like a hopeless cause, they w ­ ill have the consciousness that wrongs can be righted, that justice can overcome entrenched power, and their lives and efforts count.”59 Roberts, e-­mail to author, March 29, 2022. Tiya Miles, telephone call with author, March 28, 2022. 58 Angie Debo, “To Establish Justice,” Western Historical Quarterly 7, no. 4 (October 1976): 405–7. 59 Debo, “To Establish Justice,” 412. 56 57

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She became the staunchest of allies to Native p ­ eoples, and for that I am ever grateful. In the end, she reminds me of “Aunt Eller,” whom some ­people ­will recognize as a character from Rod­gers and Hammerstein’s Oklahoma!, the musical adapted from the play by Lynn Riggs (Cherokee), Green Grow the Lilacs. As Aunt Eller says, “You got to learn. You got to look at all the good on one side and all the bad on the other, and say: ‘Well, all right, then!’ to both of ’em.”60 To me, Angie Debo is an Aunt Eller, and she also went on to try and fix what she could. Debo would be, I suspect, surprised by and proud of the massive changes that have occurred in Oklahoma since her passing in 1988, especially the exercise of sovereignty by the Five Tribes. I know one of my f­ather’s own and greatest joys was watching the reemergence of his Chickasaw Nation as a strong po­liti­cal and cultural entity. In the span of his lifetime, 1934 to 2020, he saw our government revise our constitution (a pro­cess that involved my ­Uncle Henry and other close kin) and reissue citizenship cards for the first time since the Dawes rolls. In ­going through his t­ hings ­after his recent passing, I recently found his card in his billfold, which is marked #34. That card is a symbol of Chickasaw per­sis­tence and pride, a token of the work to continue as a cultural and po­liti­cal collective and the perseverance and hard-­won fight for recognized and effective self-­governance. I am proud to hold it.

DEBO IN THE HALLS OF JUSTICE

Brandt’s anxious hope that the courts would not find anything of interest in And Still the W ­ aters Run was fulfilled at the time of publication. But recent events have taken a turn that would surely make Angie Debo smile. McGirt v. Oklahoma, the United States Supreme Court’s historic ruling in 2020, has 60

Lynn Riggs, Green Grow the Lilacs: A Play (New York: Samuel French, 1930), 144.

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led to the restored recognition of the former Indian ­Territory as Indian country u ­ nder federal law. That rhetorically power­ ful opinion begins: “On the far end of the Trail of Tears was a promise,” and it continues to the question presented in the case: “­Today we are asked w ­ hether the land . . . ​promised remains an Indian reservation for purposes of federal criminal law. ­Because Congress has not said other­wise, we hold the government to its word.”61 We hold the government to its word. Imagine. Even without more, I imagine Debo would be pleased with the Court’s frank truth-­telling and commitment to justice, no ­matter pos­si­ble incon­ve­niences. But t­ here is more. Riyaz Kanji, one of Muscogee Creek Nation’s McGirt attorneys, credited Debo as “invaluable” to the work that resulted in this ruling. “I ­don’t think we could have litigated the case the way we ­were able to absent her work, and I think that was true for all of the ­lawyers working on our side of the case.”62 His law partner, David Giampetroni, seemed almost to channel Debo with his bluntness as he agreed with Kanji: “This is not even a molecule of exaggeration—if ­there is no And Still the ­Waters Run, ­there is no McGirt. We lose.”63 If we can trace a clear historical path from Debo’s work to McGirt, Debo herself seemed, ironically, to have missed the first step—­Congress’s restoration of internal Tribal po­liti­cal franchises.64 The Principal Chiefs Act of 1970 lifted federal restrictions on the citizens of the Five Tribes so they could, for the first time since statehood, elect their own leaders. Few appreciated the historical consequence at the time; certainly, writing her preface in 1972, Debo seemed unconscious of what this act might mean. Its effect was profound and immediate, revitalizing the internal politics of Tribal self-­government for the Five Tribes, which—of course—­precipitated disagreements. “As is often the case,” said Stephen Greetham, attorney 61 18-9526, McGirt v. Oklahoma (07/09/2020), https://­www​.­supremecourt​.­gov​/­opinions​ /­19pdf​/­18​-­9526​_­9okb​.­pdf. 62 Riyaz Kanji, interview with author, March 25, 2022. 63 David Giampetroni, interview with author, March 25, 2022. 64 Debo, And Still the ­Waters Run, xviii.

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for the Chickasaw Nation, “several of t­ hese disagreements—­ namely, ­those within the Muscogee Creek, Chickasaw, and Choctaw Nations—­found their way into the courtroom and had profound import for the revitalization of Tribal self-­ determination.”65 ­These cases turned on the basic question of where the ­authority to govern each of the Five Tribes lay within each individual Tribal nation, particularly as to the relationship between newly formed Tribal government institutions and each Tribal nation’s pre-­statehood treaties and constitutions. Muscogee Creek Nation’s internal disputes resulted in the Harjo v. Kleppe ruling in US District Court (District of Columbia). Offering a carefully detailed explication of the relevant ­legal history, the Harjo court called out and condemned what could “only be characterized as bureaucratic imperialism, manifested . . . ​in deliberate attempts to prevent from functioning the tribal governments.”66 The court was searing in its clarity and unambiguous in its criticism of intrusions on Five Tribe self-­government, and it held, with an analy­sis that was ­later applied to Chickasaw and Choctaw ­legal histories as well, that the Muscogee Creek Nation’s sovereignty was unextinguished and that its legitimate governmental authority is rooted in pre-­statehood treaties and constitutions that had been neither extinguished nor terminated. Debo’s scholarship was fundamental to the decision. The court expressly noted its reliance on two of Debo’s titles, And Still the ­Waters Run and The Road to Disappearance, and citations to her work can be found throughout the ruling. While other sources are also cited, the court singled out her books as “the pre-­eminent works in the field.”67 Following Harjo, each of the Five Tribes could now rely on an authoritative judicial declaration of what they already knew: their inherent sovereignties remained intact, notwithStephen Greetham, interview with author, March 25, 2022. Harjo v. Kleppe, 420  F. Supp. 1110 (D.D.C. 1976), https://­case​-­law​.­vlex​.­com​/­vid​ /­420​-­f​-­supp​-­1110​-­603539742. 67 Harjo v. Kleppe, 420  F. Supp. 1110 (D.D.C. 1976), https://­case​-­law​.­vlex​.­com​/­vid​ /­420​-­f​-­supp​-­1110​-­603539742. 65 66

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standing Oklahoma statehood and willful federal intrusion and suppression. With this in hand, each Tribal nation has turned to deeper rebuilding efforts, growing significantly in terms of governmental and po­liti­cal complexities, cultural revitalization, economic development, and provision of ser­vices throughout their lands. T ­ oday, the Five Tribes are among the biggest contributors to the Oklahoma economy, and as their economic activities have grown along with their renewed sovereignties, so too have reasons for courts to address ­legal questions that have arisen. Debo’s diligent, documented, and verifiable scholarship has provided authoritative and fact-­based grounds for discrediting the myth that the Oklahoma boosters, Boomers, and o­ thers have told for de­cades. This reckoning has, in turn, empowered the Five Tribes—­increasingly and with clearer voices— to chronicle their own stories, both of their sovereignties and ways of being in this world as well as of their relationships with Oklahoma and the United States. As such, Debo’s work was a power­ful disruption that provided the means for reor­ga­niz­ing our understanding of how l­ egal power is allocated within t­ hese lands that ­were once the Indian Territory, but which became the state of Oklahoma. Her work helped to bring justice. This is Debo’s greatest legacy; it is certainly its most material impact. And it is my hope, g­ oing forward, that we discuss Debo’s scholarship in conjunction with and to underscore the con­temporary exercise and significance of Tribal sovereignty.

THE LEADERS OF THE FIVE TRIBES ON ANGIE DEBO’S A N D S T I L L T H E ­W A T E R S R U N

So much has been written about the top-­shelf classic And Still the ­Waters Run, but very ­little, if any, from the perspective of ­those “betrayed”—­the Five Tribes themselves. Therefore, the concluding, and perhaps most significant section of this

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foreword rec­ords the perspectives of the current leaders of the Five Tribes. I am grateful for the work ­these leaders do from “from one day, one month, one year to another”68 to protect and further Tribal sovereignty and for taking the time to visit with me personally about And Still the ­Waters Run. I offer my thanks to each. Yakoke, Chokma’shki.

Principal Chief Chuck Hoskin, Cherokee Nation

And Still the ­Waters Run documents something that other­wise might not have been documented with re­spect to allotment and what came in the wake of allotment, which was just as damaging—­the el­derly fluent Cherokees who lost their lands through this pro­cess that was set up for that very purpose—­ the decimation not only of land resources, governing institutions, and even something as precious as ­children being taken. The book was about a promise that was broken in the treaties and the federal ­legal scheme that added insult to injury to the imposition of the state of Oklahoma over tribal lands. But now our reservations are being recognized ­under McGirt and the cases that followed. The Five Tribes, collectively and individually, are asserting economic and po­liti­cal might the likes of which ­we’ve not seen before or certainly not seen in some generations before. I hope that ­people would think McGirt is part of a reconciliation—­that ­there needs to be reconciliation for what happened—­and I would like to think that most Americans would think that—­that what is happening now with McGirt is legally right. But more than that, it is a moral imperative that tribes get to govern themselves and restore what was taken away.69 68 Bill Anoatubby, governor of the Chickasaw Nation, interview with author, March 23, 2022. 69 Chuck Hoskin, principal chief of the Cherokee Nation, interview with author, March 25, 2022.

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Governor Bill Anoatubby, Chickasaw Nation

­ here was a continuous effort on the part of the Chickasaw T ­people to work with our leaders, some community leaders, not official, appointed, or elected, but leaders that emerged from our communities that cause us as a Nation to reemerge. Angie Debo’s account gave us the motivation to keep working. We know what p ­ eople are capable of—­the greed, the inability to see the tribal citizens as h ­ uman beings with rights—so we had to grasp it. Debo gave us motivation, not only to hold on to sovereignty, but to also build on it consistently from one day, one month, one year to another—to understand some of the ­things that occurred during that time to keep history from repeating itself.70

Chief Gar y Batton, Choctaw Nation

I think from the heart first, and what I mean by that, is I think about And Still the W ­ ater Runs and w ­ ater flowing as a symbol of hope. T ­ here is a continual flow. Native Americans are coming full circle—we have always been sovereign. Debo wrote about what happened at that time, and now the McGirt ruling acknowledged that our reservation was never disestablished, proving that we are a sovereign nation. The importance of the book is how she understood us as sovereigns. Our sovereignty withstands the test of time. I think about how much sovereignty can be exercised within a time frame. Our own perception of how much sovereignty we had in the years following statehood was ­limited. Now, we understand its depth and breadth. We embrace and hold it dear. It comes with the responsibility and accountability and protection of our tribal citizens and ­those who live within our reservation.71 Anoatubby, interview with author, March 23, 2022. Gary Batton, chief of the Choctaw Nation of Oklahoma, interview with author, March 24, 2022. 70 71

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Principal Chief David Hill, Muscogee Nation (Creek)

When Angie Debo wrote And Still the W ­ aters Run—­and she was non-­Native—­she basically tried to tell the true story of what ­really happened. History had only been taught from one aspect, the state aspect. She told history from our side—­the ­people that it affected the most—­not just from the aspect of the settler. Especially with the McGirt decision stating that we ­were never disestablished, it is appropriate that this is being reprinted. It is impor­tant. They ­don’t want to acknowledge that laws w ­ ere created to strip us of land, of identity, of our culture . . . ​that’s what assimilation was. ­We’re fighting tooth and nail now to not lose our language and not lose our culture ­because of what the government has done. My ­family history was taught from Chitto Harjo’s perspective. My great-­ grandfather was with him during that time. You never see that part of history taught in Oklahoma history—­maybe just a paragraph on what they fought for, which is the same t­ hing that ­we’re fighting for now. Chitto Harjo always knew it was a reservation, and it just so happens two years ago the Supreme Court recognized it.72

Chief Lewis Johnson, Seminole Nation

And Still the ­Waters Run is a colossal piece of work. It holds truths that needed to be told. It was difficult for some to hear or read the truth, but it needed to be done. I attach it to every­thing ­we’re ­going through as Five Tribes ­today—­she unveiled some areas that ­were impor­tant with re­spect to recent Supreme Court rulings, including McGirt. I’ve found out that most authors d ­ on’t take into consideration how we think or how our philosophies and spiritual thoughts are applied. 72 David Hill, principal chief of the Muscogee Nation (Creek), interview with author, March 24, 2022.

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Debo did, to some extent, try—­she went ­after the stories in that manner and that way. That definitely set her apart in her day and in her time, and that is one of the main reasons leaders re­spect her t­oday. And Still the W ­ aters Run needs to be read by all.73 —­Amanda Cobb-­Greetham, Norman, Oklahoma, 2022

73 Lewis Johnson, chief of the Seminole Nation of Oklahoma, interview with author, March 28, 2022.

PREFACE

E

VERY schoolboy knows that from the settlement of James­ town to the 1870's Indian warfare was a perpetual accompaniment of American pioneering, but the second stage in dispossessing the Indians is not so generally and romantically known. The age of military conquest was suc­ ceeded by the age of economic absorption, when the long rifle of the frontiersman was displaced by the legislative enactment and court decree of the legal exploiter, and the lease, mortgage, and deed of the land shark. As a preliminary to this process the Indians were persuaded or forced to surrender their tribal organization and accept United States citizenship and to divide their communal holdings into individual allotments. Because of the magnitude of the plunder and the rapidity of the spoliation the most spectacular development of this policy occurred with the Five Civilized Tribes of the Indian Territory. At the beginning of the present century about seventy thousand of these Indians owned the eastern half of the area that now constitutes the state of Oklahoma, a territory im­ mensely wealthy in farmland and forest and coal mines, and with untapped oil pools of incalculable value. They ruled themselves and controlled this tribal property under constitu­ tional governments of their own choosing, and they had at­ tained a degree of civilization that made them at once the boast of the Indian Office and living examples of the benefits of travelling in the white man's road. Their political and economic tenure was guaranteed by treaties and patents from the Federal Government, and warned by the tragic fate of all Indians who had lost their homes, they insisted upon the observance of these conditions. But white people began to settle among them, and by 1890 these immigrants were overwhelmingly in the majority. Congress therefore abrogated the treaties, and the Indians

xl

PREFACE

received their land under individual tenure and became citizens of Oklahoma when it was admitted to the Union in 1907. The orgy of exploitation that resulted is almost beyond belief. Within a generation these Indians, who had owned and governed a region greater in area and potential wealth than many an American state, were almost stripped of their hold­ ings, and were rescued from starvation only through public charity. Such treatment of an independent people by a great imperial power would have aroused international condemna­ tion; but these Indian republics were-to quote John Mar­ shall's famous opinion-"domestic dependent nations," and the destruction of their autonomy was a matter of internal policy. Even as a real estate transaction this transfer of prop­ erty would have attracted wide attention, but the Indians had been forced to accept the perilous gift of American citizenship and they were despoiled individually under the forms of exist­ ing law; hence no writer of American history devotes even a sentence to their wrongs, students of Indian life are interested only in their inspiring achievements under the tribal regime, and their plight during the generation of their exploitation has been consistently ignored by the press. Obviously the rapidity of the spoliation called for crude methods, in many cases even criminal methods, and the im­ mense value of the loot exerted a powerful influence upon con­ temporary opinion and standards of conduct. It should not be necessary to point out that Oklahomans are no worse than their neighbors, for this is only one episode-although the most dramatic episode-in a process that constitutes an unrecorded chapter in the history of every American frontier. But the reaction of this process upon the ideals and standards of suc­ cessive frontier communities is a factor in the formation of the American character that should no longer be disregarded by students of social institutions. Fortunately the historian is not expected to prescribe reme­ dies. The policy of the United States in liquidating the institu-

PREFACE

xli

tions of the Five Tribes was a gigantic blunder that ended a hopeful experiment in Indian development, destroyed a unique civilization, and degraded thousands of individuals. As the story unfolds, the reader may formulate policies that might have averted this disaster if adopted, or he may conclude that the catastrophe was inevitable. This study was undertaken before the election of 1932, and if its findings support the tenets of the present Indian admin­ istration the circumstance is accidental. The research was carried on independently and with no preconceived theories of Indian policy. The facts uncovered during the investigation were a revelation to the writer, who had grown up in Oklahoma without knowing that these things were so. The manuscript was completed in 1936 only a few days after the passage of the Oklahoma Indian Welfare Act; but publica­ tion has been delayed and it has been decided to include some new material to bring the subject up to date as far as possible. This portion of the research has been necessarily superficial, for it is too early to reach conclusions as to the effect of such a radical change in Indian policy. It is believed, however, that the revision will be a convenience to the reader in the relatively unimportant matter of statistical information. The author is under obligations to Dr. E. E. Dale, head of the history department of the University of Oklahoma, for awakening in student days an interest in Indian institutions; to Mr. Frank Phillips of Bartlesville,. whose public spirit in establishing a collection of historical material at the University has provided facilities for research; to Mrs. Mabel Bassett, Commissioner of Charities and Corrections of the State of Oklahoma, for free access to her files; to Miss Margaret Camp of Albuquerque, New Mexico, for secretarial help that amount­ ed to collaboration; to Commissioner John Collier and the employees of the Indian Office at Washington and in Okla­ homa for unlimited access to current files and the opportunity of observing the work of the field service; to the librarians and

xlii

PREFACE

archivists at the University of Oklahoma and the Oklahoma State Historical Society; and above all to the Social Science Research Council for a grant-in-aid without which the research could not have been completed.

Marshall, Oklahoma May 28, 1940

ANGIE DEBO

AND STILL THE WATERS RUN

CHAPTER I

The Indians' Country

E

VERY American of middle age can remember when his school geography showed to the south of Kansas a large unmarred expanse of map designated as the Indian Territory. While never a territory in the political sense, it was owned and ruled by the five autonomous Indian republics known as the Cherokee, Choctaw, Chickasaw, Creek or Mus­ kogee, and Seminole nations. Although they were :fiercely and passionately devoted to their homes, these Indians had only recently settled in the West. Their ancestors when discovered by De Soto were living east of the Mississippi in the Gulf and southern Appalachian region. When first visited by Europeans they were an agricul­ tural people, raising corn, beans, squashes, and tobacco; but they also depended largely upon hunting and fishing. They soon began trading with the English settled along the Atlantic seaboard, the Spanish in Florida, and the French in Louisiana; and they learned to plant European grains and garden vege­ tables, and to raise horses, cattle, hogs, and barnyard fowls. When the United States succeeded to European colonial influence in the Gulf region, the new government followed a custom established by its predecessors of making alliances and treaties with the Indian tribes, but from 1800 on a new problem arose through the encroachments of its advancing settlements. One important result of this closer intercourse was the rapidity with which the Indians, especially the Cherokees and Choc­ taws, began to adopt the white man's institutions. They invited Christian missionaries to their country and established churches and schools, they adopted constitutions and legal codes, and some of their leaders began to operate plantations

4

AND STILL THE WATERS RUN

worked by Negro slaves. The progress of the Cherokees was especially rapid at this time, because Sequoyah, one of the greatest geniuses ever produced by any race, invented a phonetic alphabet that enabled the whole tribe to become within a few months a literate people. But this advancement in civilization served only to provoke the frontiersmen to increased hostility, because it enabled the Indians to contest their encroachments more effectively. The United States, to relieve its Western settlers, began to purchase outlying portions of the Indians' territory in exchange for money and annuities and wild tracts of land beyond the Mis­ sissippi. A gradual emigration took place to these new lands, but it was apparent that most of the Indians were determined to strengthen their institutions and remain in their ancestral homes. The period of forcible removal began when Andrew Jackson became President in 1829. His policy was embodied in the Indian Removal Act of 1830, which expressed the settled purpose of the Government to locate the Eastern tribes beyond the frontier. 1 At the same time there was a feverish and speculative devel­ opment of the rich Gulf cotton lands, and reports of gold dis­ covery in the Cherokee country in Georgia caused prospectors to rush in, tearing down the Indians' fences and destroying their crops. The states began to pass laws breaking down the tribal autonomy of these unwelcome independent communities that were obstructing their settlement. In 1829 Mississippi extended her state laws over Choctaw and Chickasaw lands joining organized counties, and in 1830 the Indians were made citizens of Mississippi and forbidden under penalty of fine and imprisonment to hold any tribal office. Georgia also ex­ tended her jurisdiction over the Cherokee country, forbade the tribal legislature to meet except for the purpose of ratifying land cessions, and invited her citizens to rob and plunder their Indian neighbors at will by making it illegal for an Indian to bring suit or testify against a white man. When President 1 Statutes at Large of the United States of America ( Boston, Washington, 18541934), IV, 411-12, May 28, 1630.

THE INDIANS' COUNTRY

5

Jackson began to negotiate with the Indians under authority of the Indian Removal Act, he pointed to the inability of the Federal Government to prevent this extension of state sover­ eignty, and held out a guarantee of perpetual autonomy in the West as the strongest incentive to emigration. By a combination of bribery, trickery, and intimidation the Federal agents induced all five tribes during the 1830's to cede the remainder of their Eastern lands to the United States and to agree to migrate beyond the Mississippi. All these removal treaties contained the most solemn guarantees that the Indians' titles to these new lands should be perpetual and that no terri­ torial or state government should ever be erected over them without their consent. Some of the treaties also contained pro­ visions by which individual Indians might accept allotments in the land they had ceded and hold them under the white man's laws. The tragic suffering of the exiles on the "Trail of Tears" is familiar to all students of American history. It is matched only by the saturnalia of exploitation to which they were sub­ jected by land speculators who crowded them from their homes before the time fixed for their emigration, and who possessed themselves of their individual allotments by every possible combination of violence and fraud. 2 The Indians emerged from this experience with the most invincible determination to main­ tain their tribal autonomy in the West against the encroach­ ments of territorial or state government, and to guard their tribal holdings against the white man's system of land tenure, when history should begin to repeat itself upon their new frontier. As soon as they were settled in their new homes these Indians made such remarkable social and political progress that they soon became known as the Five Civilized Tribes to distinguish them from their wild neighbors of the plains. 3 At · first they owned all of the present state of Oklahoma except the "Pan2 Grant Foreman, Indian Removal (Norman, Oklahoma, 1932). s Idem, The Five Civilized Tribes (Norman, Oklahoma, 1934).

6

AND STILL THE WATERS RUN

handle," but they made alliances with the Confederacy at the outbreak of the Civil War, and when they resumed treaty rela­ tions with the United States they were compelled to surrender the western half of their territory as a penalty for their "re­ bellion. m Part of this ceded land was used by the Federal Government for the settlement of other Indian tribes, and the remainder by a series of "Openings" from 1889 on was thrown open to white homesteaders and became the Territory of Oklahoma. The land retained by the Five Civilized Tribes continued to be known as the Indian Territory. It consisted of 19,5 2 5 ,966 acres divided as follows : the Choctaws controlled 6,953,048 acres in the southeastern part ; the Chickasaws exercised juris­ diction over 4,707 ,903 acres west of the Choctaws ; the Chero­ kees owned 4 ,4 20,068 acres in the northeast ; the Creeks owned a 3 ,07 9 ,095-acre tract southwest of the Cherokees ; and the Seminoles were settled on 3 6 5 , 8 5 2 acres which they had pur­ chased from their near kinsmen, the Creeks. The Choctaws and Chickasaws, who are very closely related, owned their lands jointly, but their settlements were fairly distinct and each tribe exercised complete jurisdiction over its own district.'5 In spite of the losses and spoliations which they had sus­ tained, the Indians still owned a princely domain. Larger than several of the Atlantic states, the Indian Territory was approxi­ mately the size of South Carolina, and almost as large as Indiana. The Creek and Chickasaw nations contained some of the best agricultural land of the present state of Oklahoma ; much of the Choctaw country was covered with valuable timber, and extensive coal fields were opened soon after the Civil War ; and the Cherokee, Creek, Chickasaw, and Seminole lands were destined to produce a large share of that flowing gold that was to make Oklahoma famous for its fantastic wealth. 4 Annie Heloise ( Cleveland, Ohio, ( Cleveland, Ohio, Ohio, 1925 ) . 5 Department of

Abel, The American Indian as Slaveholder and Secessionist 1 9 15 ) ; The American Indian as Participant in the Civil War 1 9 1 9 ) ; The American Indian under Reconstruction ( Cleveland, the Interior, Annual Report, 1919, II, 342.

THE INDIANS' COUNTRY

7

Each tribe also owned a . large sum of money derived from the sale of its Eastern lands and held in trust by the United States. The income formed a considerable part of the revenue of the tribes and was appropriated by their legislatures for the support of their governments and schools. These trust funds in 1 894 were : 6 Cherokee Choctaw Chickasaw Creek Seminole

$ 2 , 7 1 6 ,9 7 9.98 9 7 5 ,2 5 8 . 9 1 1 ,206,6 9 5 .66 2 , 2 7 5 , 1 68.00 2 ,07 0,000.00

Each tribe formed an intensely nationalistic small republic with distinctive customs and institutions. The Creeks and Seminoles were conservative, but the other three tribes were eagerly receptive of any custom which they considered superior to their own. The conversion of all the tribes to Christianity had been ef­ fected rapidly after the Removal. There was some brief hostility especially among the Creeks to the work of the missionaries, but upon the whole the new religion was readily and gladly accepted. Naturally a devout people with deep mystical feeling and a strong sense of moral obligation and family and group solidarity, they found Christian teachings fitted to their own way of thought. Every remote settlement had its Presbyterian, Methodist, or Baptist church, and the Indians combined their religious zeal with their love for community gatherings in the brush arbor camp meeting with its all-day services. A few mis­ sionaries continued to work among them, but most of their preachers were Indians, often college trained. 1 Each tribe maintained a complete school system under its own administrative officials. Elementary education was carried on in the neighborhood schools, which in their irregular at6

Commissioner of Indian Affairs, A nnual Report, 1894, pp. 475-78. 1 Report of the Select Committee to Investigate Matters Connected with Affairs in the Indian Territory (Senate Reports, 59 Cong. 2 Sess., No. 501 3 ) , I, 690-91, 696 ; Angie Debo, The Rise and Fall of the Choctaw Republic (Norman, Oklahoma, 1934 ) , pp. 63-65, 229-32.

8

AND STILL THE WATERS RUN

tendance and inadequate instruction, corresponded to the rural schools of the adjoining states. Each tribe also maintained several boarding schools with highly qualified faculties, and at least one tribe paid the expenses of a selected group of young people in the great universities of the country. As a result of this boarding school and college training there was a larger proportion of educated people among the Cherokees, Choctaws, and Chickasaws than among the white people of the neighbor­ ing states. Some of the children, however, failed to profit from these educational opportunities, and there was considerable illiteracy so far as knowledge of English is concerned. 8 It is apparent that with the possible exception of the Semi­ noles, about whom little is known, practically all the Indians were accustomed to reading books and newspapers in their own 9 language. The Presbyterian missionaries, who began their work among the Choctaws in Mississippi in 1 8 1 8 , began to translate books into Choctaw and to hold native language schools for the adult Indians. Later, although their spoken dialect differs somewhat from the Choctaw, the Chickasaws were able to use this same written language. After the Removal, the missionaries reduced the Creek-Seminole language to a simple written form. As a result of Sequoyah's great invention the Cherokees established a national newspaper in 1 8 2 8 . Under the name of the Cherokee Phoenix and the Cherokee Advocate this paper continued through most of the tribal period, and served to keep even the most conservative fullbloods well in­ formed on all public questions. The Choctaws and the Creeks also made some attempt to maintain national newspapers, but 10 in general they were not successful. Of the privately owned papers a few were owned and edited by Indian citizens, but the great majority were published by white residents and advo­ cated a policy inimical to Indian interests. Even these foreign 8 Select Committee, I, 1 05 1 ; II, 1 169, 1 1 72 ; Debo, op. cit ., pp. 42-45, 60-63, 23643 ; Commissioner of Indian Affairs, Annual Report, 1 893, pp. 146-48. 9 Select Committee, I, 3 1 8, 690-91 . 1 0 Debo, op. cit., pp. 226-28 ; Carolyn Thomas Foreman, Oklahoma Imprints (Norman, Oklahoma, 1936) , pp. 55, 76-85, 190-94.

THE INDIANS' COUNTRY

9

publications, however, usually carried columns m the local Indian language. The United States maintained a protectorate over these Indian republics. The rights of each were based upon an elaborate system of treaties extending from the beginning of the American Government to the agreements negotiated at the close of the Civil War; and although it had long been a recog­ nized principle of law that Congress had the legal right to abrogate a treaty by statute, the Federal officials up to 1890 showed some decent hesitation about breaking the pledges to the Five Civilized Tribes. The Indian leaders quoted the treaties with such skill and fluency that they invariably out­ debated their white opponents, and even the most conservative fullbloods knew their terms and insisted upon their fulfilment. The United States maintained a representative to the tribes, known as the Union Agent with offices at Muskogee, in the Creek Nation. He was assisted by two clerks, and he used a small force of Indian police, citizens of the various nations, as enforcement officers. His duties were purely diplomatic and advisory, and few men who held the office made a serious at­ tempt to inform themselves regarding the internal affairs of the tribes. 1 1 Each of the tribes had a constitutional government with a Principal Chief ( Chickasaw Governor) and other executive officers ; a General Council, bicameral except for the Seminole; and a system of courts. The ancient Creek "town" and the Seminole "band" still formed the local governing unit for these two tribes, but the political divisions of the other three were largely artificial and geographical. 1 2 The Indians had a natural genius for politics. Trained through countless generations in the proud democracy of prim­ itive councils, they found their borrowed Anglo-American insti­ tutions in perfect harmony with their native development. 1 1 This is shown in the agent's annual reports. The Choctaws, for instance, took a periodic census, but the reports are filled with the wildest guesses regarding popu­ lation and economic statistics ; for example, Debo, op. cit ., pp. 1 1 ln., 1 14n., 221-22. 12 Department of the Interior, Annual Report, 1900, pp. 85, 1 18-20, 1 45-46 ; Debo, op . cit., pp. 1 5 1 -63, 236.

10

AND STILL THE WATERS RUN

Their parliamentary assemblies were models of decorum, and their orators spoke with the disciplined eloquence of a re­ strained but passionate race. In a political unit so small that it was possible for every voter to have a personal knowledge of candidates and issues, the elections and inaugural cere­ monies and the deliberations of the legislatures furnished recreation and excitement for the entire populace. Few com­ munities have ever equalled these small Indian republics in political skill. But the Indians were noticeably deficient in practical judg­ ment and in business ability, and they showed a tendency to settle every question by making an eloquent speech, adopting a well-worded resolution, or passing a law ; and their law enforcement did not correspond with their legal ability or with their elaborate system of courts. Their legal codes show a curious mixture of primitive cus­ tom and Anglo-Saxon law. The punishments were fine, whip­ ping, or death by shooting or hanging. The enforcement officers consisted of sheriffs and a special group of hardy mounted Indians known as lighthorsemen. 1 3 The jurisdiction of the courts and participation in the gov­ ernment was limited to citizens. Citizens by blood consisted mainly of those Indians and their descendants who had settled in the Indian Territory at the time of the Removal and had lived there continuously ever since. People of recognized Indian descent who had remained behind or who had been living as white citizens of various states occasionally came to the Terri­ tory and were admitted to citizenship by special act of the tribal governments. The Cherokees , Creeks , and Seminoles had been induced to grant full citizenship to their former slaves at the close of the Civil War. The Choctaws and Chickasaws had secured an optional provision in their peace treaty, and the United States agreed to remove the freedmen within two years and colonize them elsewhere if the Indians should decide against adoption. 1 3 Debo, op. cit., pp. 17 5-78.

THE INDIANS' COUNTRY

11

Both tribes promptly voted for their removal, but the United States failed to take action. Finally, after twenty years, the Choctaws adopted their freedmen and gave them the limited economic, educational, and political privileges permissible under the treaty ; but the Chickasaws, except for a temporary weakening in 1 8 7 3 , continued to petition for the fulfilment of the treaty during the remainder of the tribal period. 1 4 The Cherokees, Choctaws, and Chickasaws also admitted intermarried whites to citizenship. There had been considerable admixture of white blood in all the tribes before the Removal, but for a time after the settlement in the West white influence almost disappeared. After the Civil War, with the construction of the first railroads across the Indian Territory and the rapid settlement of the Western frontier, this immigration and inter­ marriage began again. The Chickasaws had been recklessly generous to their inter­ married citizens, and as a result these white men monopolized the best agricultural lands in the Nation. In 1 890 the Indians attempted to protect themselves by enacting a law providing that intermarried citizenship should confer no property or political rights, but the white men held meetings and defiantly resolved that if any attempt were made to dispossess them they would "exterminate every member of this council from the chief down. m 5 The Choctaws began to regulate intermarried citizen­ ship before it assumed such serious proportions. They required the applicant to furnish a certificate of good moral character signed by ten Choctaw citizens, to pay a license fee of one hundred dollars, and to renounce the protection of the laws and courts of the United States. 1 6 The Cherokees conferred no prop­ erty rights upon those citizens who intermarried after 1 8 7 7 . 1 1 There was a certain amount of overlapping settlement be­ yond the borders of the various tribes and of intermarriage 1 4 Ibid., pp. 99-109 ; United States Supreme Court Reports (Lawyers' Edition, Rochester, New York, 1904 ), XLVIII, 640-45.

1 5 Report of the Commission A ppointed to Negotiate with the Five Civilized Tribes of Indians, Known as the Dawes Commission ( Senate Docs., 54 Cong., 1

Sess., No. 1 2 ) , 1695, p. 59. Law enacted October 1, 1 890. 1a Debo, op. cit., pp. 106, 1 79-80. 1 7 Supreme Court Reports, LI, 96-105.

AND STILL THE WATERS RUN

12

between their citizens. This condition was especially noticeable between the Choctaws and Chickasaws and the Creeks and Seminoles. A considerable number of Cherokees and a few Creeks who had been driven from their homes by Northern armies during the Civil War settled in the Choctaw country and made permanent homes there. There was also some ex­ change of tribal populations across the Creek-Cherokee border. This intermingling of tribes seldom caused any diffi­ culty. The Choctaws and Chickasaws had a treaty by which the members of either tribe were entitled to all the privileges of citizenship in the other when residing within its jurisdiction. Citizenship in the other tribes was regulated largely by mutual tolerance, but an intertribal code was drawn up in 1859. This agreement provided for the requisition of escaped criminals, made Indians living under a foreign jurisdiction subject to the local courts and laws, and provided for naturalization. It appears from contemporary records that a considerable amount of this naturalization took place. 1 8 A more serious problem than white or intertribal citizenship was the non-citizen white immigration, which began to trickle into the Indian Territory soon after the Civil War and became a deluge that engulfed the Indian settlements by the close of the century. A large number of Negroes also came in as laborers in the mines or as tenants on the Indians' farms. Many of the white immigrants were intruders, who had entered the country in defiance of tribal law and had fastened themselves upon the Indians' possessions with a grip that it seemed impossible to break. The most troublesome of the intruders were those who had advanced some fantastic claim to citizenship, and who loudly demanded every privilege enjoyed by the Indians in spite of repeated denials of their claims by the tribal authori­ ties. A large number of the immigrants, however, were legal residents, who conformed to the tribal laws, and whose pro­ ductive labor was wanted by the Indians. But regardless of status the non-citizens came in such hordes that they soon out18

Debo, op. cit., pp. 66, 7 1 .

13

THE INDIANS' COUNTRY

numbered the Indians, and the tribal communities as minority governments found it increasingly difficult to maintain their authority. The first United States census of the Indian Territory, which was made in 1 890, shows the approximate racial composition. It classed the inhabitants according to physical appearance without regard to citizenship, but it reveals in a startling way how the Indians were crowded in their last refuge by the pres­ sure of other races. The statistics are as follows : 10 PERCENTAGE

NATION

Cherokee Choctaw Chickasaw Creek Seminole TOTAL

WHITES

NEGROES

INDIANS

29, 1 66 2 8 ,345 48,42 1 3,287 172 1 09,393

5,127 4,406 3 ,6 7 6 4,6 2 1 806 1 8 ,636

2 2 ,0 1 5 1 1 ,0 5 7 5,223 9 ,999 1 ,7 6 1 50,055

TOTAL OF INDIANS

56 ,309 43 ,808 5 7 ,3 2 9 1 7 ,9 1 2 2 ,739 1 78,097

39.1 25.24 9.1 1 55.82 64. 29 28. 1 1

Pleasant Porter, the great and wise Chief of the Creeks, more than any other man of his generation attempted in a detached and philosophic way to analyze the problems of his people. Speaking before a Senatorial committee visiting the Indian Territory in 1 906 , the old man told of the idyllic conditions of the untroubled life he had known in his boyhood and of their disappearance under the pressure of the new invasion. The un­ welcome immigrants "got pretty smart and they wanted taxes and big lots of cattle--they wanted everything that way, and if we didn't do it we were in the soup anyway . . . but we wouldn't listen to them at first, but took them and turned them loose up here on the borders of Kansas and Missouri, but they would come back, and others would come, and we could not keep them out, so they would flow all over us . . . . We have striven in our own way for our elevation and uplifting, and for a time it seemed that we were actually going to evolve a sort of civilization that would suit our temperament ; and we prob1e Bureau of the Census, Extra Census Bulletin, The Five Civilized Tribes of the Indian Territory (Washington, 1894) , pp. 3-5.

14

AND STILL THE WATERS RUN

ably would if it had not been for this white and black inva­ sion. " 20 According to ancient Indian custom the land was held in all the tribes under communal tenure. Any citizen might cultivate as much land as he wanted and the tribal laws protected him in his right of occupancy and in the possession of his improve­ ments, but as soon as he ceased to use it the title reverted to the Nation. With a natural gift for collective enterprise the Indians were contented and prosperous under a system that seemed actually sacrilegious to the individualistic and acquisi­ tive white man. Pleasant Porter's description presents an accu­ rate picture of the simple but sufficient economic life of the old Indian country, and the way in which it broke down before the restless energy of the invading whites. " In those days they always raised enough to eat, and that was all we wanted. We had little farms, and we raised patches of corn and potatoes, and poultry and pigs, horses and cattle, and a little of everything, and the country was prosperous. In fact in my early life I don't know that I ever knew of an Indian family that were paupers. There is plenty of them now ; there was none then. They were all prosperous and happy and con­ tented in their way, and what more could they want ? I say I don't know of an Indian family in my early life that were paupers. In those days the ones that would be paupers if they lived now stayed with their kin folks and they made them work. Now, back of that the custom of the Creeks was that everybody had to work or live on the town, and the town had taskmasters who took care of him and saw that he worked. There wa� not a skulker or one who shirked amongst us then ; quite different from what it is now. We had a kind of an Arca­ dian government then. If anyone was sick or unable to work, the neighbors came in and planted his crop, and they took care of it-saw that the fences were all right-and the women took care of the garden, and wood was got for him, and so on. In fact, everything was done under the care of the people-they 2 o Select Committee, I, 624-25.

1. Dwelling of Creek Fullhlood. "We had little farms, and we raised patches of corn and potatoes, and poultry and pigs, horses and cattle."

THE INDIANS' COUNTRY

15

did everything and looked after the welfare of everything. The Creek had that much knowledge, that they cared for each other in that way ; and while they used to live in towns [ in Alabama ] , out here in this peaceful country they had scattered out just like white men, and each one had gone to his farm, . . . " . . . In those days, you know, a hog ran wild in the woods­ went just where he liked-only they would be fed regularly a little corn or something to keep them kind of tame and domes­ ticated ; but now you have to keep him under fence, you can't leave him out now like then. He is just as unsafe outside to-day as a squirrel is." 21 By 1890 ranching had changed the character of the Creek country. Under the grazing law of 1889 any Creek head of a family could enclose one square mile of the public domain for pasture purposes without making any payment to the tribe. Then, under the theory that fencing the land along the frontier would keep out the cattle from adjoining tribes, the law con­ tained express provisions for large enclosures there. The citizen who wanted to secure control of a large pasture was required to present a petition to the judge of the district, who would then call an election and submit the question to the voters. If he was successful in this referendum, the enterprising Creek then secured the land under a three-year lease, with the privi­ lege of renewal. He was required to fence it and to pay the Nation an annual rental of five cents an acre. He would then sub-lease it to cattlemen, usually from Texas, and make con­ siderable profit on the transaction. 22 Under this law most of the prominent Creek families ac­ quired holdings of from thirty thousand to sixty-eight thousand acres. A study made of the leasing situation in 1896 gave a list of sixty-one individual citizens or companies of citizens whose holdings totaled 1,07 2,2 1 5 acres-approximately one-third of 2 1 Ibid., I, 23, 624-25 . Miss Alice M. Robertson, who had a lifelong familiarity with Creek life, also testified regarding neighborhood cooperation and the cultiva­ tion of the "town" farms (ibid., I, 688, 693-96) . For Choctaw economic life see Debo, ap. cit., pp. 1 10-1 5 . 22 Muskagee Times-Demacrat, July 9, 1909 ; Muskagee Phaenix, January 19, 1919.

16

AND STILL THE WATERS RUN

the entire area of the Creek Nation. The Perryman family received an annual rental of $ 2 5 ,000 for their pastures, and the firm of Turner and Porter (Pleasant Porter and Clarence W. Turner, a white man married to a Creek citizen) 23 was next with an income of $ 1 6 ,000. 2 4 Among the Cherokees also, large tracts of land were monopo­ lized by a few citizens, usually mixed bloods, for farming or ranching purposes. The same study showed a list of twenty­ three Cherokees who controlled a total of 1 7 4 ,000 acres. The eight citizens whose names were at the head of the list each held from ten thousand to twenty thousand acres. 25 But the Cherokees' greatest difficulty was with the intruders, who seized their land, erected improvements, and proved impossible to dislodge. Since they were not recognized as citizens, they were outside tribal jurisdiction, and the Cherokees were unable to secure their expulsion by the Federal authorities. The Chickasaw tribe, with its small population and its rich agricultural land, had the most serious problem of all. Nearly all the best land was held by intermarried white men or leased to white non-citizens. About 1 86 7 the Nation had tried to pre­ vent this condition by enacting a law, with severe penalties, forbidding a Chickasaw to lease land to a non-citizen for a longer period than a year ; but the law was generally evaded by secret agreements between the parties, and although many Chickasaw citizens were indicted for its violation, the practice was so common that it was virtually impossible to find a jury that would convict. As a result, land was leased all over the country for agricultural purposes for terms of from two to fifteen years, and in a few instances even for the lifetime of the parties. 26 The Choctaws regulated their immigration and the use of their land and natural resources more successfully. It was 2s Muskogee Phoenix, loc. cit. 2 4 Senate Docs., 54 Cong., 1 Sess.,

No. 182, pp. 27-31 , testimony of Archibald S. McKennon of the Dawes Commission before the Committee on Indian Affairs. 25 Ibid., p. 8. 2 6 Ibid., p. 38 ; Overton Love to Dawes Commission, D awes Commission, Report, 1896, pp. 1 12-13.

THE INDIANS' COUNTRY

17

made illegal in 1870 to lease the public domain for grazing purposes and in 18 7 7, for agricultural purposes ; and in 1880 non-citizens were forbidden to own livestock except a limited number under permit for family use. In 1880 the size of a pas­ ture that could be enclosed by a citizen was limited to one square mile, but two citizens who already held larger pastures continued to use them. These laws were evaded to a certain extent, but the Choctaw country was never monopolized by non-citizen farmers or cattlemen. 27 The Choctaws were usually classed as the best business men of the Five Tribes, and some of their wealthiest citizens be­ longed to fullblood or nearly fullblood families. The richest Choctaw, Wilson N. Jones, was said to hold 17,600 acres under fence, of which 5 5 0 acres was under cultivation, and to own 5,000 cattle, 7 5 horses, several coal mines, a store, and a cotton gin. It was not illegal for a citizen to lease his personal holdings to non-citizens, and most of the labor on these great farms was performed by white or Negro tenants. 28 The rich coal mines, of course, belonged to the Nation, but Choctaw law recognized the right of a citizen to stake out a mining claim that covered a radius of one mile from the point of discovery. The canny Choctaws often employed mining experts to assist them in discovering coal veins, and most of the well-to-do citizens owned mines. A tribal official, the Na­ tional Agent, leased these mines to operators under strict public regulation, and collected the royalties, which were divided equally between the Nation and the citizen who owned the mine. In 1 890 the National Treasurer's report showed that $5 7,839.49 in royalty had been turned into the tribal treasury that year. Timber sales also were placed exclusively under the control of the National Agent, and, as the lumbering industry developed, these royalties became another important source of public revenue.29 21 Senate Docs., 54 Cong., 1 Sess., No. 182, p. 39 ; Debo, op. cit., pp. 1 10-1 1 , 144-45. 2s Debo, op. cit., pp. 1 10-1 1 . 2 9 Ibid., pp. 128, 134-39, 145.

18

AND STILL THE WATERS RUN

All the tribes except the Seminole secured additional revenue by taxing non-citizens through their right to control immigra­ tion. There was a tax on business conducted by non-citizens, a per caput annual permit fee to be paid by all employers for their non-citizen laborers, and an annual license fee to be paid by skilled laborers and professional men. 30 The presence of this alien population and the consequent industrial development caused thriving white men's towns to grow up throughout the Indian Territory, except in the Semi­ nole Nation where there were only a few trading stations owned by the wealthy mixed-blood Brown family. These towns were important shipping centers for coal, timber, cattle, and agri­ cultural products, but only the Cherokees provided for their incorporation. As a result the physical appearance of Indian Territory towns presented a shocking contrast to their real pros­ perity. There were no city taxes except in the Cherokee Nation, hence no schools except voluntary subscription schools, no police or fire protection, and no sewers, city lighting, or paving ; and no title could be secured to the lots upon which the busi­ ness houses and dwellings were erected. 3 1 This enterprising non-citizen life was carried on almost without legal protection or restraint, for the tribal governments had no authority over United States citizens and Federal courts were created very slowly. The United States Court for the Western District of Arkansas at Fort Smith had criminal jurisdiction, but there was no civil jurisdiction of any kind until the first Indian Territory court was established at Mus­ kogee in 1 889. After this the Federal courts were rapidly extended, and in 1 89 5 three judicial districts were created, with a court of appeals sitting at McAlester, in the Choctaw 80 Debo, op. cit., pp. 140c43, 1 45-46 ; Department of the Interior, Annual Report, 1891, pp. 83-84 ; 1899, I, 107, 1 18-1 9 ; 1900, pp. 93, 95, 106-7, 141 -42, 180-86 ; 1901, I, 226-27 ; Cherokee Papers ( Phillips Collection, University of Oklahoma ) , Reply of Cherokee Delegation to Ex. Doc. No. 86, Washington, March 8, 1884 ; Lee Mills, Personal Interview (Pryor, Oklahoma, September 27, 1935 ) . 3 1 Debo, op. cit., pp. 222-23 ; Department of the Interior, Annual Report, 1 899, I, 128, 197 ; 1901, I, 226 ; Mills, Personal Interview ; Cherokee Papers, handbill dated Tahlequah, March 7, 1872, advertising the sale of occupancy titles to town lots in stations along the Atlantic and Pacific Railroad.

THE INDIANS' COUNTRY

19

Nation. These courts now had complete civil and criminal jurisdiction over United States citizens and over tribal citizens in mixed cases where United States citizens were involved. The laws of Arkansas were placed in effect by the acts of Congress creating these courts. Because of the limited application of Federal law during most of the period, crime flourished in the Indian Territory. Judge Isaac C. Parker, who presided over the Fort Smith court from 187 5 to 1896, established a record of 172 sentenced to death and 88 actually hanged, nearly all of whom were Indian Territory "bad men." Little attempt was made to arrest any but the most depraved criminals against whom the evidence was overwhelming. Less spectacular than the frequent commis­ sion of serious crimes, but more annoying to the hundred thousand white residents of the Indian Territory was the complete absence of civil law. There was no way of enforcing the payment of debts, and people who had a dispute over prop­ erty had no recourse except to "�hoot it out," or to refer it to the 82 arbitration of the Indian Agent. In other respects also the large white population was living under conditions never before encountered by any considerable body of United States citizens. Thousands of children were growing up with no educational opportunities of any kind, a large body of tenants were cultivating land to which they could never secure title, and the proud and self-assertive white Americans were paying taxes to support a government in which they had no voice and a school system from which they re­ ceived no benefits. The inhabitants of this fierce frontier did not even consider the fact that the Indian tenure rested upon the most solemn commitments by the Federal Government, and that by settling in the Indian Territory they had volun­ tarily subjected themselves to these conditions ; and they set up a constant clamor for the abolition of the tribal governs2 S. W. Harman, Hell on the Border ( Fort S mith, Arkansas, 1898 ) ; Debo, op. cit., pp. 184-91 ; Statutes at Large, XXVI, 93-100 ; Commissioner of Indian Af­ fairs, Annual Report, 1 895, pp. 445-50 ; Secretary of the Interior, Annual Report. 1696, II, 1 5 1 .

20

AND STILL THE WATERS RUN

ments and the establishment of a system representative of the entire population, and for the breaking up of the communal holdings into an individual tenure that would pass easily into the hands of the whites. This demand was echoed by the people of the neighboring states, who were distressed by the spectacle of rich agricultural land that had never felt the plow, and towns that could not anticipate in the very near future the erection of skyscrapers. From the date of the Removal the Indians had been con­ fronted with these proposals, the treaties signed at the close of the Civil War contained optional provisions for allotment and territorial organization, and during the following genera­ tion Congress had been deluged with bills for the forcible abolition of the tribal tenure. 33 By the opening of Oklahoma in 1889 and the creation of its territorial government a year later, a new and lusty voice was added to the popular clamor. Although the Indians managed to defeat - this legislation through the extraordinary diplomatic skill and legal ability of their leaders and the determined opposition of their entire citizenship, it became apparent by 1890 that the treaties would not be allowed much longer to block the path of "progress. " The Indian Office opposed in principle the communal land tenure, and the Union agents-with the single exception of Robert L. Owen, a Virginian of Cherokee descent who had been admitted to tribal citizenship-filled their annual reports with condemnation of the system. For a time the Indian Office depended upon persuasion, but in 1886 the Commissioner of Indian Affairs recommended the forcible allotment of a quar­ ter-section to each citizen and the purchase of the remainder for white settlement. In 1890 the Special Census Bulletin for the Indian Territory departed from its statistical impartiality to advocate a similar policy. 8 4 83 Annie Heloise Abel, "Proposals for an Indian State," Annual Report of the American Historical Association, 1907, I, 95-100 ; Grant Foreman, Advancing the Frontier ( Norman, Oklahoma, 1933 ) , pp. 180-94 ; Debo, op. cit., pp. 212-17. 84 Extra Census Bulletin, pp. 23-24, 32-33 ; Commissioner of Indian Affairs, Annual Report, 1886, pp . v, viii, x-xii.

THE INDIANS' COUNTRY

21

At the same time Eastern philanthropic friends o f the In­ dians added their dignified voices to the clamor of the turbulent frontiersmen. For some time these theorists had professed an almost mystical faith in the value of private ownership and its power to transform the nature of any Indian who could be persuaded or forced to accept it. The Board of Indian Commissioners was created in 1 869. It was supposed to be made up of distinguished philanthropists, who were to serve without pay, and whose reports would oper­ ate as a check upon vicious legislation or administration. After a year of study this board made its first report, recommending, as a general Indian policy, allotment with restrictions on alienation of the land, and specifically that members of the Five Tribes should be made United .States citizens and taxed as soon as possible. From that time on the Board commonly regarded the extent of allotment as the measure of progress in Indian advancement. 3 5 In 1 883 a small group of Eastern humanitarians began to meet annually at Lake Mohonk, where with an agreeable back­ ground of natural beauty, congenial companionship, and crusading motive, they discussed the Indian problem. At their third meeting Senator Henry L. Dawes of Massachusetts, a distinguished Indian theorist, gave a glowing description of a visit of inspection he had recently made to the Indian Terri­ tory. The most partisan Indian would hardly have painted such an idealized picture of his people's happiness and pros­ perity and culture, but, illogically, the Senator advocated a change in this perfect society because it held the wrong prin­ ciples of property ownership. Speaking apparently of the Cherokees, he said : "The head chief told us that there was not a family in that whole nation that haq not a home of its own. There was not a pauper in that nation, and the nation did not owe a dollar. It built its own capitol, in which we had this examination, and it built its schools and its hospitals. 3 5 Board of Indian Commissioners, Annual Report, 1902, pp. 3-7.

22

AND STILL THE WATERS RUN

Yet the defect of the system was apparent. They have got as far as they can go, because they own their land in common. It is Henry George's system, and under that there is no enterprise to make your home any better than that of your neighbors. There is no selfishness , which is at the bottom of civilization. Till this people will consent to give up their lands, and divide them among their citizens so that each can own the land he cultivates, they will not make much more progress . " 3 6 The Conference accepted this viewpoint, and continued to advocate " reform" with all the earnestness of a moral crusade. Like Senator Dawes, the members based their opposition purely upon theoretical belief in the sanctity of private ownersh ip rather than upon any understanding of the Indian nature or any investigation of actual conditions. With regard to Indians in general, their program in 1 903 comprised : the abolition of the Indian Bureau and all Indian agencies, and the extension of state authority over all Indian tribes ; the extinction of tribal governments and the granting of full United States citizenship with its privileges and obligations ; and the division of the communal holdings among the individual Indians, to be held under the same conditions of taxation and freedom to alienate as the white man's farm. 8 7 With these respectable groups influencing public opinion it is not strange that the articles about the Indian Territory appearing in the serious magazines were almost unanimous in their condemnation of tribal control. These accounts were widely divergent, and most of them were grossly inaccurate ; but whether the writers described an impossibly utopian society and sought a method to improve perfection, or whether they slandered the Indians' character and achievements and urged a remedy for an intolerable condition, they united in demand­ ing abolition of the tribal tenure. Only the National Indian Defense Association, formed at Washington in 1 8 8 5 , opposed Ibid., 1 885, pp. 90-9 1 . Ibid., 1900, p p . 25-32 ; Lake Mohonk Conference, Report, 1904, p p . 5-6 ; De­ partment of the Interior, A nnual Re.Port, 1900, pp. 655-735. 06 37

THE INDIANS' COUNTRY

23

the change, and its warning was hardly heard in the general 88 clamor. In response to this faith in private ownership, Congress passed the Dawes Severalty Act in 1887. It provided that In­ dian reservations should be allotted in 160-acre tracts to heads of families, 80 acres to unmarried adults, and 40 acres to chil­ dren ; and that the remainder should be purchased by the Government and thrown open to homestead entry. 30 The Five Tribes were exempted from its provisions, but they rightly interpreted it as an expression of public policy dangerous to their institutions. Every session of Congress in the early Nineties was charged with menace, but when the dreaded legislation was enacted, March 3, 1893, it provided only for negotiation. The President was authorized to appoint three commissioners who should have great discretionary power in making agreements with the Indians for the extinction of their communal titles and the eventual creation of a state.4° Fortunately for the Indians Grover Cleveland came into office the following day. Like nearly all white men of his time he believed in allotment, but he was one of the three or four Presidents of the United States most conspicuously friendly to Indian aspirations. 41 Dawes, who had retired from the Senate, became chairman of the Commission, and Meredith H. Kidd of Indiana and Archi­ bald S. McKennon of Arkansas were appointed as the other members. It was officially designated as the Commission to the Five Civilized Tribes, but so great was the prestige of the venerable chairman in Indian affairs that it was universally known as the Dawes Commission. Soon after their appointment the members proceeded to the Indian Territory and invited the tribes to negotiate. They were deeply incensed at the concerted resistance they encountered, as Anna Laurens Dawes, "An Unknown Nation," Harper's Magazine, LXXVI ( 1 888 ) ; Rezin W. McAdam, "An Indian Commonwealth," If.arper's Magazine, LXXXVII ( 1893 ) . s o Statutes at Large, XXIV, 388-91. 4 0 Commissioner of Indian Affairs, Annual Report, 1893, pp. 5 12-13. n Dawes Commission, Report, 1895, pp. 60-61.

24

AND STILL THE WATERS RUN

and they advised Congress to disregard the treaties and abolish the tribal status without waiting for the Indians' consent. But Congress authorized them to continue the negotiation, and after three years of patient effort they persuaded the first tribe-the Choctaws-to treat with them. During the entire period they published annual reports, appeared before committees of Con­ gress, and made speeches before various public gatherings describing the conditions they found in the Indian Territory and pointing out the necessity for a change. These statements were naturally accepted by Congress and the country at large as authentic, and are still generally quoted uncritically by even the most careful students of Indian his­ tory ; but they are no more objective than the manifestoes issued by the average government before entering upon a war of conquest. Unquestionably land hunger was the real motive behind most of the agitation to terminate the tribal regime, and a fairly good case could have been made out in the name of "manifest destiny," or the right of the strong to dispossess seventy thousand easy-going Indians in favor of a million white people who could occupy and develop their rich holdings ; but civilized men have seldom been willing to state their mo­ tives so baldly. The reports of the Dawes Commission, there­ fore, are couched in a high moral tone often rising to impas­ sioned eloquence condemning the exploitation of the fullblood Indians under the existing regime and painting glowing de­ scriptions of the deliverance awaiting them. They portrayed the inconveniences suffered by the white residents, the appalling number of crimes of violence, and the great natural resources of the Indian Territory, which were lying undeveloped. These were the white man's arguments, and in all this they told the truth. But they presented a com­ pletely unfair picture of the poor Indian crowded back in the hills and living in abject poverty while the rich leaders of the tribe monopolized the productive land that belonged equally to all. Thirty-nine Choctaws, they said, had collected $65 ,000 in coal royalties in 1 894, and with great moral indignation they condemned these selfish individuals for thus seizing the

THE INDIANS' COUNTRY

25

common property. It is evident that in this argument they were attempting to hold the Indians to abstract and ideal rather than comparative standards, for certainly the poor Indian had a better chance to become a prosperous farmer than the landless member of the white man's society ; such public attempts to regulate the size of holdings as the Choctaw pasture limitation and the Creek referendum on proposed enclosures went further in preventing land monopoly than any law ever passed by an American state ; and a garbled misrepresentation of the Choc­ taws' system of publiG control of natural resources came with especially bad grace from the members of a race that in the short space of a century had seen the greatest natural wealth in the possession of any people pass into private and of ten rapacious hands. They characterized the Indian governments as hopelessly venal. It is true that some Indian politicians were corrupt, but no serious student of the tribal governments familiar with subsequent developments in Oklahoma would contend that they were any more dishonest than the state gov­ ernment that supplanted them, or that official corruption was any more general than it was at that very time in the surround­ ing states. The Commissioners constantly asserted that only the greedy monopolists resisted the allotment of the communal holdings and that only the dishonest officials opposed the dis­ solution of the tribal governments. No doubt they were sincere in these misstatements, but the sequel was to show that the tribal leaders finally submitted to the inevitable while the ignorant fullbloods clung to their institutions with a despairing tenacity that refused to accept the logic of events. No such charitable allowance can be made regarding their statements about the freedmen. They condemned the Choctaws for the limited citi,.. zenship granted their Negroes, and asserted that the United States was "bound by solemn treaty" to place the Chickasaw freedmen "securely in the enj oyment of their rights as Chicka­ saw citizens, and cannot with honor ignore the obligation. " The Choctaws had been most generous in extending favors to their freedmen beyond the stipulations of the Treaty of 1 866, and for thirty years the United States, with or without honor,

26

AND STILL THE WATERS RUN

had "ignored the obligation" of that treaty to remove these un­ welcome residents from the Chickasaw country. This misin­ formation was apparently obtained from attorneys who were trying to secure for the freedmen equal shares of the tribal property, but for the members of the Dawes Commission, who were paid an adequate salary to devote their entire time to an important public assignment, ignorance in such a matter is as inexcusable as intentional falsehood. 42 A speech made by Chairman Dawes at the Lake Mohonk Conference in 1 896 furnishes an example of the influence of such irresponsible statements. Seventy-seven years old at the time of his appointment and afflicted by an increasing deafness, which had troubled him during his last months in the Senate,43 he had not been active in the work of the Commission. But apparently he had conferred with the other members or had read their reports, for his description of the hopeless misery of the fullblood Indians crowded out of their heritage sounds strangely different from the ideal conditions whic_h he had found in the Indian Territory eleven years before. Referring, of course, to Judge Parker's 1 7 2 death sentences in 2 1 years, he said, " One judge who has been there ten or fifteen years has sentenced something like 1 ,000 men to be hanged for crimes committed in that Territory." Such vague charges may have satisfied his audience ; one must examine the court records to find that he had requested exact statistics and that the court clerk had sent him a carefully compiled list of the death sen­ tences for each year since 1 8 7 5. In the same speech he also said that the treaties of 1 866 had provided for allotment and the creation of a territorial government, but he neglected to state that those provisions had been optional, and that the tribes had overwhelmingly rejected them. 44 42 Dawes Commission, Report, 1 894, pp. 1 5 - 1 9, 23-53, 82, 88 ; 1 895 , pp. 5 5-63 ; 1 896, pp. 8, 28-30, 38-40 ; 1 899, p. 7 . 4 3 Dictionary o f A merican Biography. 4 4 Charles F. Meserve, The Dawes Commission and the Five Civilized Tribes of the Indian Territory ( Philadelphia, 1 896 ) , pp. 4 1 -44 ; Fort Smith Papers, United States Court and Indian Territory ( Phillips Collection, University of Oklahoma ) , Vol. II, Nos. 1 and 2 .

THE INDIANS' COUNTRY

27

As head of the Commission, Dawes was naturally accepted as an authority on Indian Territory conditions, and these nai:ve misstatements had a most mischievous effect. The Indian Rights Association sent Charles F. Meserve, the president of Shaw University, to the Indian Territory to investigate. His report, which was a terrible indictment of the Indian regime and an unqualified endorsement of the Dawes Commission, contained this misleading speech in full. 4'5 Subject to the clamor of an irresistible white immigration and deserted by public sentiment, the situation of the Indians was indeed hopeless. A letter written to Chief Mayes by the Cherokee delegation in Washington in 1895 presents such an accurate and comprehensive and yet restrained analysis of conditions that it deserves to be quoted at length. The delegates said that the Dawes Commission had just presented the written report of the fruitless negotiations with the Indians, and had also made an oral argument before a joint meeting of the Com­ mittee on Territories and the Judiciary Committee of the House of Representatives. The Cherokees also had been invited to appear and make a refutation, which they hoped had made . . an 1mpress10n. "Yet, in the struggle to shield our country from the calami­ ties which the scheme contemplated by the friends of the Dawes report would certainly bring upon it, we had to labor under great disadvantages. It did seem as if the world was about to rise in arms against us. We saw that even the press had been largely subsidized in favor of the dissolution of our government and the invasion of our rights. Before the committee on terri­ tories of the House, in order to make the impression on members of Congress that the people of the several tribes were in favor of a territorial government, it was stated by lobbyists sent from Ardmore that there were fifty-five newspapers in Indian Terri­ tory, and that all of them excepting five were in favor of a territorial government. But care was taken not to let it be known that all these papers favoring a territorial government had been 45 Meserve, The Dawes Commission, loc. cit. See also Senate Reports, 53 Cong., 2 Sess., No. 3 7 7 .

28

AND STILL THE WATERS RUN

mounted ( ? ] in the Indian Territory either by intruders or non­ citizen white men for the express purpose of subverting the governments of the Indians and turning the country over into the hands of speculators and inferior politicians, who imagine that, in event of such change as they contemplate for the Indian country, they would be importuned to fill the territorial offices, and possibly to represent the dear people in the halls of Con­ gress. Nevertheless, these papers have their influence. They are circulated at Washington as well as throughout the country at large. We met with some of them in the Department of Jus­ tice, where officers of the Government appeared to have formed their opinions in reference to our country from the stories told in their columns. . . . While we on our side of the great debate between the United States and the Cherokee Nation, have, for the most part, supinely rested in the belief that all was peace and safety, they with a zeal which knew no pause, have been sapping the very foundations of our government. "Furthermore, many of the great dailies that a few years ago pleaded so persistently for the liberation of the slaves, are now insisting upon 'opening' our country for the settlement and occupancy of the whites. Still further, as an evidence of the influence which the press has against us, even benevolent asso­ ciations which were organized a few year [ s ] ago to urge Con­ gress to keep the treaties which had been made with Indian tribes, are now advising the erection of a territorial government in our country and allotment of our lands in violation of our treaties and without our consent. It is worthy of remark, too, as indicating the course of public sentiment in relation to our country, that even the pulpit, which some time ago, was so exuberant of love for the slave has no good word to speak in behalf of the Indians of Indian Territory. No church assembly now passes resolutions against a violation of our treaties, the abrogation of our government and an invasion of our right of property . . . . "Under these circumstances, we cannot refrain from the in­ dulgence of a reflection. The history of human affairs convinces us that it is always a misfortune to hold the position of a weaker

THE INDIANS ' COUNTRY

29

party. East of the Mississippi we were a happy people. The United States wanted our country there ; reluctantly we parted with it, and to this day have not received all that was promised us for it. The Government wanted the six million acres of our strip lands ; 46 we agreed to part with those lands, but the terms of the agreement entered into at Tahlequah and ratified by act of the National Council, were changed by act of Congress with­ out our consent, and yet, after changing those terms to its own liking, the Government has not complied with them. And now, they want us to enter into another agreement-an agreement with the Dawes Commission. But what assurance have we, even if we were disposed to come to an agreement with that Commission, that the terms of such agreement would not be swept aside and others, to which we could never assent, imposed upon us ? We think it ·would be but fair on ( the ] part of the Government to comply with the agreements already made with our people, before asking us to enter into others of a nature more serious in their character than any hitherto proposed. ' '; . . ( With regard to the failure of the United States to carry out a recent pledge to remove the intruders-] The newspapers, too, are interesting themselves in the matter. The question has been raised as to where the intruders can go, if they are to be removed from our country, as if their were no space on the continent outside of our lands, where even millions can find homes, if they only have a desire to do so. . . . We opine, how­ ever, that the same energy which they have displayed in their efforts to wrest from us a large portion of our property, will enable them to acquire homes even amongst the most astute of their fellow citizens. But there seems to be a sinister motive for keeping the intruders in our country. It was the contents of the \vooden horse emptied inside the wal1 s of Troy, that enabled the Greeks to take that ancient city. ". . . [ In view of the great potential wealth of the Indian Territory the real motive of the plan is to secure the Indians' property. ] It is seen by the keen eye of speculation, that, if our country were revolutionized as contemplated in the scheme 4 6 Lands in Oklahoma Territory opened to white settlement in 1 893.

30

AND STILL THE WATERS RUN

of the Dawes Commission, it would become easy for capitalists and monied men of less degree to soon become the owners of millions. But what about the other side ? What about our people, who are, now, the legal owners and sovereigns of these lands ? Why the question is [ e ] asy of answer. Crushed to earth under the hoofs of business gread, they would soon become a homeless throng, more scoffed at and abused than a Coxey's army. No territorial or state legislation can protect the Indian in his rights. Business has no moral consciousness ; when a statute comes in its way, it will invoke the aid of a 'higher law' and grasp the Indian's property anyhow. " . . . It is wonderful, too, to see with what unanimity the papers exclaim that 'Carthage must be destroye [ d ] . ' . . . Even the heavy Quarterlies, such as the North American Review, are being operated in the interests of our enemies. . . . ". . . As far as the Indian people are concerned, the present are days to try men's souls ; and he who is made of stuff so lofty of nature, as to rise superior to all selfish considerations, and, in face of the popular clamor of the times, boldly speak out in favor of the rights and freedom of the Indians, becomes an object worthy to be venerated by the good and great in all lands. ' 1 4 7 This report, written hastily by hand, was but an in­ formal letter from the delegates to their friend, the Chief ; but it shows ah insight strangely lacking in the voluminous pub­ lications of white writers and Government officials. It has an even more uncanny accuracy as a prophecy of the future. • 1 Cherokee Papers, Report of S. W. Gray, Roach Young, and J . F. Thompson to Hon. S. H. Mayes, 1895.

CHAPTER II

The White Man's Land System

T

HE final surrender of the tribal institutions came only after prolonged negotiations, with the threat of force always in the background. The division of the tribal property was carried out partly under agreements made with the Dawes Commission and partly under Federal legislation. Even after the agreements were secured, Congress changed the terms so freely and arbitrarily that the apprehensions of the Cherokee delegates were fully realized. Few public officials in the United States ever conducted a transaction of such magnitude as fell to the �ot of the Dawes Commissioners, for it became their duty to determine the heir­ ship and to divide estates with a total value equal to that of many an American state. So far as property interests were concerned, they conducted their tremendous task with a high degree of honesty and efficiency, but unexpected complications prolonged the process for many years. At the same time the change was accomplished at a terrible and unregarded cost of human suffering. The membership of the Commission changed with bewilder­ ing frequency, but Dawes remained as nominal chairman until his death in 1903. Tams Bixby of Minnesota, who had served on the Commission since 1 89 7 , and who had been acting as chairman, was then formally appointed to the position. The Commission was abolished in 1 905, and Bixby carried on the work as sole Commissioner. He resigned in 1907, and was succeeded by J. George Wright, who continued to serve until the office was abolished in 1 9 1 4 . 1 The Commission employed 1 Department of the Interior, Annual Report, 1 9 1 4, II, 5-6.

32

AND STILL THE WATERS RUN

hundreds of clerks, appraisers, surveyors, etc. , who worked in specialized fields throughout the Five Tribes area. During the century that the Indians had witnessed the con­ stant shrinking of their territory before the land hunger of the white man, they had developed a horror of land cessions ; and it became apparent at the very beginning of the negotiations that they "would not under any circumstances agree to cede any portion of their land to the Government, but would insist that if any agreements were made for allotment of their lands it should all be divided equally among them." The Commis­ sioners accordingly abandoned the idea of purchase, and pro­ posed the reservation of the townsites and the Choctaw coal and the asphalt deposits of the Chickasaw district and the division of all the remainder among the citizens. They also suggested that the individual allottee should be protected by making " Sufficient land for a good home for each citizen . . . inalienable for twenty�five years, or such longer period as may be agreed upon." 2 For three years the Indian nations separately and in inter­ tribal conventions steadfastly refused to treat. But Congress in 1895 authorized a survey of the land, and in 1896 directed the Dawes Commission to make a complete roll of the citizens of each tribe, and gave rejected citizenship claimants the right of appeal to Federal courts. Bills were also introduced at each session providing for forcible abolition of the tribal status. Finally the more progressive Indian leaders, realizing that only by a negotiated settlement could they avoid a dictated one, began to use their influence in favor of an agreement. 8 All the tribes but the Cherokees accordingly consented to treat. They appointed delegations to negotiate with the Dawes Commission, and by 1 898 compacts had been drawn up, and one, the Seminole Agreement, had been ratified by the tribe. There was every prospect, however, that the other settlements would be rejected. Congress, therefore, in the Curtis Act of 2 Dawes Commission, Report, 1894, pp. 82-87. 3 Ibid., 1894, p. '81 ; 1895, pp. 47-55, 64-65·; Debo, op. cit., pp. 253-55 ; Statutes at Large, XXIX, 32 1 .

THE WHITE MAN'S LAND SYSTEM

33

June 28, 1 898 , enacted the long-threatened legislation termi­ nating the tribal tenure without the Indians' consent. This law did not apply to the Seminoles, since they had already come to terms with the Government ; and the agreements negotiated with the other three tribes were amended somewhat and em­ bodied in the act with the stipulation that if they should be accepted by the Indians within a specified period they would be substituted for the more drastic general provisions. 4 The Creeks, however, rejected the agreement at a special election, and the Curtis Act went into effect in their country. The Cherokees also, who had steadfastly refused to treat, came under its provisions. Because they owned their land in com­ mon, the Choctaws and Chickasaws had negotiated their agree­ ment-the so-called Atoka Agreement-jointly, and now they voted individually rather than by tribes. The more conserva­ tive citizens refrained from voting and the measure carried. The division of the Choctaw-Chickasaw estate was therefore carried out largely under its provisions. 5 The Creeks were so anxious to escape the terms of the Curtis Act that the next attempt to effect a settlement with them was successful. This agreement was ratified by the tribe May 2 5 , 1 90 1 . Pleasant Porter afterwards explained the reasons that motivated the Creeks. There were only three ways to resist, he said : by :fighting, which would have meant destruction ; by emigration, by which they would have lost their country and would have found no place to go; and by passive resistance, which would have been futile. The leaders discussed the situa­ tion and decided upon surrender, and Porter consented to accept the office of Chief in order that he might carry the plan through and use his influence to secure, as far as possible under the circumstances, the rights of each citizen. " I will tell you what I have felt and I ought not to have felt that way. I have said that I was conscious that I was compelled under the ad4 Department of the Interior, A nnual Report, 1897, pp. 409- 1 5 ; Charles J. Kap­ pler, Indian A ffairs, Laws and Treaties ( Washington, 1904 ) , I, 92-99, 656-65. s Commissioner of Indian Affairs, A nnual Report, 1898, p. 435 ; Indian Citizen, September 1, 1898.

34

AND STILL THE WATERS RUN

vance of civilization to sign the paper now that I know [ that I now know ] took the lifeblood of my people. " 6 But the Cherokees still remained without a written settle­ ment. That numerous and able people had rejected all pro­ posals as long as they retained any freedom of action. Then, when the Curtis Act abolished their institutions, they bargained for more favorable terms than Congress was willing to accept. The first negotiations took place during the winter following the passage of the Curtis Act. The proposals submitted by the tribal delegates contained the provision that all land should be non-taxable for thirty-five years. The Federal Commis­ sioners sought to modify this condition, but the counter-pro­ posals they submitted were more generous in the protection of the individual allottee against alienation than were to be found in any of the agreements with the other tribes. The Cherokees also stipulated that their freedmen should be limited to forty­ acre allotments and should not share in the distribution of the tribal funds, and the D awes Commission embodied this pro­ posal in the draft agreement. But the most significant Cherokee proposal was labelled, " Plan for preserving in effect the con­ tinuity of the Tribal Relations of the full blood Indian . " It provided that as many fullbloods as desired might take adja­ cent allotments within an area subject to the approval of the Dawes Commission and hold it as a corporation for their j oint use under communal title. 1 Apparently this proposal was not even considered by the Federal officials ; but barely a genera­ tion was to pass until the whole machinery of Indian adminis­ tration would be set in motion to bring about this identical result. The agreement drawn up through this negotiation was ap­ parently not sufficiently favorable to the white man, for al­ though it was accepted by the tribe it failed of ratification by 6 Kappler, Laws and Treaties, I, 729-39 ; D epartment of the Interior, A nnual Report, 190 1 , p. 143 ; Select Committee, I, 649. Isparhecher, an unlettered fullblood elected upon an anti-Dawes platform, served as Chief until 1 899. 1 Cherokee Papers, Joint Session United States Commission and Cherokee Com­ mission. These stenographic reports do not indicate the authorship of the last proposition, but it was certainly submitted by the Cherokee delegation.

THE WHITE MAN'S LAND SYSTEM

35

Congress. After several other fruitless attempts t o reach a settlement, an agreement was finally adopted in 1 90 2 . Until that time the Cherokees remained under the Curtis Act. 8 As the allotment proceeded under the various agreements, it became apparent that details had been overlooked or that poli­ cies had been adopted that proved unacceptable. Supplemental agreements· were accordingly made with the Seminoles in 1 900 and with the Creeks and the Choctaws and Chickasaws in 1 902. 9 An examination of all these agreements shows some modi­ fication of Indian thought during the period from 1 896-the date of the first Choctaw negotiation-to 1 902. The Curtis Act had provided for the retention of mineral rights by the tribes-a policy that would have had important results when the Indian country became one of the great oil fields of the world-but the Creeks and Cherokees repealed this provision in their agreements and the minerals were allotted with the land. Under the Atoka Agreement the Choctaw-Chickasaw coal and asphalt were to be reserved and the royalties were to be collected under the supervision of the Secretary of the Interior and used for the tribal schools ; but the Supplemental Agree­ ment changed this policy to segregation and sale of the coal and asphalt land and the distribution of the proceeds among the citizens. The earliest agreements-with the Choctaws and Chickasaws and the Seminoles-provided for a school fund. This policy was not adopted in the later settlements, and was abandoned by the Choctaws and Chickasaws when they de­ cided upon the sale of their mineral land. All these changes indicate that the Indians, though slow to surrender their communal system, came eventually to desire the complete liquidation of all their tribal assets. This was partly owing to the acceptance of the new system by their leaders, and the natural desire to make the process complete ; but it was s Department of the Interior, Annual Report, 1 900, p. 105 ; D awes Commission, Report, 1901, p. 1 5 6 ; 1 902, p. 202. The text of the first agreement will no doubt be discovered by some future writer of Cherokee history. 9 Commissioner of Indian Affairs, Annual Report, 1 902, p. 122 ; D awes Com­ mission, Report, 1 902, p. 20 1 ; Kappler, Laws and Treaties, I, 702-3, 7 6 1 -65, 7 7 1 -87

36

AND STILL THE WATERS RUN

caused mainly by dissatisfaction with Federal administration of their estates. If they were not to control their property, they wished to have it divided as completely as possible. The terms under which the Indian was to hold his allot­ ment differed in the various agreements, but all of them con­ tained provisions to protect the inexperienced allottee in his new title. It was recognized that the Indian under communal tenure had developed no familiarity \Vith written contracts, deeds, mortgages, taxes, and other methods of alienating his holdings. A limited portion of the allotment, designated as the "homestead," was accordingly guarded by restrictions against alienation, while the remainder, which came to be known as the " surplus," would soon pass freely into the Indian's control. It was expected that the Indian would immediately sell his sur­ plus, and that living on his homestead he would be surrounded with white neighbors. This would satisfy the land hunger of the white men, would open the country to the development of its resources, and would distribute the Indian population among the general citizenship of the community. All the objec­ tives of the general allotment policy would thus be attained as effectively as though the Indian tribes had been willing to accept small allotments and sell large tracts of their land to the United States. The agreements also varied as to the closing of the tribal rolls. None of the tribes had consented to negotiate when enrolment began by Federal mandate under the law of 1 896. The Indians resented the division of their property among a list of citizens whom they did not recognize ; but the Supreme Court upheld the authority of the Dawes Commission to make the rolls, and they were compelled to acquiesce. When they began to make agreements, however, they secured provisions in some cases protecting them against the more indefensible raids upon their property, and regulating the closing of the rolls. But while completion of the enrolment was delayed by intricate problems of detail and disputed points of law, the natural Indian birth rate continued, and Congress in response to requests from all the tribes provided for these new arrivals.

THE WHITE MAN'S LAND SYSTEM

37

The final rolls, therefore, do not indicate the population of the tribes, but the totals formed by adding the numbers living on a series of designated dates. The Creeks in particular had five of these enrolment periods ; hence it is obvious that the roll of this tribe was very much larger than the population at any one time. 1 0 The work proved to be complicated far beyond the ex­ pectations of the Federal or tribal authorities. The tribes all possessed rolls and census lists, but these had been carelessly kept. In a community as small and informal as these Indian republics the recognition of citizenship rested more upon family and neighborhood knowledge than upon official registration. The Dawes Commission, moreover, charged-apparently with some truth-that the tribal politicians had manipulated the rolls according to corrupt or personal motives. They attempted, therefore, to check these lists by personal identification of every citizen and to supplement them by the addition of any omitted names. They found the conservative fullbloods, driven to this last desperate stand against allotment, extremely reluctant to enroll. At the same time they were besieged by white and Negro claimants, usually prompted by scheming attorneys, who were determined to share in the tribal property. Since they had everything to gain and nothing to lose by a judicial settlement, these applicants carried their claims to the last tribunal, and the enrolment was delayed for many years by litigation. The Commission began to receive the applications of citizen­ ship claimants at Vinita, in the Cherokee Nation, immediately after the passage of the law of 1896. But the work of enroll­ ing the real Indians was carried out in the field, and the em­ ployees of the Commission visited every remote settlement of the Five Tribes. 1 0 Kappler, Laws and Treaties, I, 1 19, 702-3, 737, 762-63, 791-92 ; III, 1 48, 1 70 ; Dawes Commission, Report, 1899, pp. 1 60-78 ; Commissioner of Indian Affairs, A nnual Report, 1902, p . 5 1 9 ; 1904, pp. 1 1 7-18 ; United States Department of the Interior, Indian Territory D ivision Files, 167 1 6/05, Enclosures No. 4, 1 3 ; Acts of the Choctaw Nation ( Phillips Collection, University of Oklahoma ) , November 22, 1905 ; Congressional Record, LI, 1 1919.

38

AND STILL THE WATERS RUN

They began enrolling the Seminoles immediately upon the ratification of the agreement with that tribe in 1898. The work was simple. Intermarried citizenship was not recognized, and most of the citizens were fullblood Indians or freedmen who had become completely incorporated within the tribal com­ munity. The Commissioners found the tribal rolls crude but free from irregularities and evidence of corruption. They took this list, subtracted for deaths and duplications, and added the names of children born since it had been compiled and seven names that had been omitted. The work was virtually com­ pleted within two months, except that it was necessary to add the names of "newborns" in 1905. Only seven applications were rejected during the entire period. 1 1 As soon as the Atoka Agreement was ratified, the Dawes Commission, having completed its field work among the Semi­ noles, entered the Chickasaw country. It began working in the Choctaw Nation the following spring and continued there through most of the summer. Each nation had appointed a citizenship commission of capable and well informed men, whose knowledge of the neighborhood and family history was of great assistance to the Dawes Commission. By the fall of 1899 most of the citizens on the tribal rolls had been identified, but the Indian governments continued for several years to seek out humble members of their race who might have been over­ looked during the registration. 1 2 At the same time the tribes were greatly aroused over the prospect of dividing their property with a horde of claimants whose citizenship was not recognized by their law. Most of the applicants were rejected by the Dawes Commission, but they appealed to the Federal courts of the Indian Territory and al­ though many were excluded, thousands were admitted to citi­ zenship. The Choctaws and Chickasaws were thrown into angry confusion. With more zeal than system, they began to employ 1 1 Dawes Commission, Report, 1899, p. 13 ; 1900, p. 14. 1 2 Ibid., 1902, pp. 15-17 ; Five Tribes Papers ( Oklahoma State Historical So­ ciety, Oklahoma City ) , Choctaw-Citizenship, report of citizenship commission to Council, October, 1899 ; Acts of the Choctaw Nation, November 1, 1899 ; October 22, 31, 1900 ; November 6, 1901, October 22, 1903.

2.

Enrollment of Citizens in the Choctaw Nation. By the fall of 1899 most of the citizens on the tribal rolls had been identified.

THE WHITE MAN'S LAND SYSTEM

39

attorneys under extravagant and overlapping contracts to fight this menace to their landed interests. The amount they spent in litigation is impossible to determine, but it was amply justi­ fied by its results. 1 3 The most important services were rendered by the firm of Mansfield, McMurray, and Cornish. These attorneys assisted the tribes in negotiating the Supplemental Agreement with the Dawes Commission, and they managed to secure a provision for a special tribunal to which the Indians might appeal the cases of the "court citizens. " 1 4 President Roosevelt appointed Judge Spencer B . Adams of North Carolina, Judge Henry S . Foote of California, and Judge Walter L. Weaver of Ohio as members of this court. It began its work in the fall of 1 902 and continued until the close of 1 904. It ruled against the constitutionality of a tribal law by which intermarried citizenship was forfeited upon sub­ sequent marriage to a non-citizen, but it rejected the uncon­ scionable claim that a white person once admitted into the tribe by marriage to an Indian could confer citizenship upon any white person whom he might afterwards marry and upon his white descendants. It also uncovered a great mass of nauseous evidence, and rejected a large number of claims upon the ground that they had been advanced through perjury and forgery. In 2 6 3 suits involving about 3 ,403 claimants admitted by the Indian Territory courts, all but about 1 5 6 claimants were excluded, and property valued at $ 1 6 ,000,000 was thereby recovered for the recognized citizens of the tribes. 15 1a Department of the Interior, A nnual Report, 1898, pp. 459-73 ; Dawes Commis­ sion, Report, 1899, p. 1 5 ; 1900, pp. 15-18 ; 1 902, p. 1 7 ; Indian Citizen, December, 1896-January, 1897 ; Acts of the Choctaw Nation, September 18, 1896 ; October 22, November 4, 1897 ; November 5, 1901 ; October 22, December 1 9, 1902 ; October 30, 1903 ; Five Tribes Papers, Choctaw-Attorneys ; ibid., Choctaw-Citizenship ; Debo, op. cit., pp. 269-71 ; Cases Decided in the Court of Claims of the United States ( Washington, 1927 ) , LXII, 501. 1 4 Acts of the Choctaw Nation, January 7, November 5 , 1901 ; December 19, 1902 ; Court of Claims Reports, LXII, 460, 466-67, 470- 7 1 , 480-81 ; Indian Terri­ tory Division Files, 4412/04 ; House Reports, 61 Cong., 2 Sess., No. 227 3, Vol. J, pp. 369, 539, 699, 795. 15 Chickasaw Capital, December 8, 1904 ; Indian Territory Division Files, File C, 1903-4 ; Court of Claim's Reports, LXII, 4 7 1 .

40

AND STILL THE WATERS RUN

Mansfield, McMurray, and Cornish, of course, represented the tribes before the citizenship court. They had been employed under contracts carrying a 9 per cent contingent fee ; but the Indian governments had lost their independence of action by the Atoka Agreement, and such contracts were subject to Fed­ eral approval. The Secretary of the Interior attempted to reduce the fee, but the firm refused to accept this modification and con­ tinued to work without an approved contract. The determina­ tion of the fee was then referred by Congress to the citizenship court, which reduced it to $7 50,000, about 4. 5 per cent of the amount recovered. 1 6 The payment of this fee aroused more virtuous-sounding condemnation than any other event in the liquidation of the Five Tribes estates. The Indian Office was highly incensed and started an investigation, a grand jury indicted the mem­ bers of the firm and the two tribal executives, and civil pro­ ceedings were instituted to recover the fee : but all these actions failed. Accusations of bribery-entirely unsupported by evi­ dence-were freely circulated against the judges of the citizen­ ship court, and much Congressional eloquence was expended in denouncing the transaction as the greatest of Indian Terri­ tory scandals. It is fairly evident that a great deal of this moral outcry originated with the citizenship claimants and their attorneys and the members of Congress who numbered them among their constituents ; and that these over-zealous defenders of the In­ dians overlooked several important facts. Congress by its legis­ lation had created a situation by which the two Indian tribes could be plundered of a large share of their inheritance, and the Department of the Interior had supinely permitted this spoliation. The tribal officials had made reckless commitments at a time when the case seemed hopeless, and the firm had undertaken the work when recovery was extremely doubtful. There is, moreover, no evidence to indicate that any undue in­ fluence was used to secure the contracts from the tribal officials. The fee, large as it was, was an excellent investment, for the ie Court of Claims Reports, LXII, 470-7 1 .

THE WHITE MAN 'S LAND SYSTEM

41

amount recovered represented one-eighth of the Indians' pos­ sessions. The real blame rests with a Federal policy that drove the tribes to such ruinous measures of defense. 1 1 Only a little less serious was the difficulty which the two tribes experienced with their freedmen. According to the Treaty of 1 86 6 , under which the Choctaw freedmen had been adopted, their final shares in the event of allotment were restricted to forty acres of average land with no participation in any per caput distribution ; and this provision had been embodied in the Atoka Agreement. The Chickasaw freedmen had, of course, no legal or economic status, but attorneys had presented their plight so well that not only the Dawes Commission but many committees of Congress had been influenced to the extent of misrepresenting the facts in their official reports. Congress therefore amended the agreement by providing for the allotment of the Chickasaw freedmen upon the same terms as the Choc­ taw, and the Indians had only the alternatives of accepting or rejecting the entire settlement. But they secured a provision in the Supplemental Agreement that the case would be referred to the Court of Claims, and that if the court should decide that the Chickasaw freedmen had no right to allotment independent of the Atoka Agreement, the Dawes Commission would appraise the land and the tribes would be compensated by the United States. 1 8 The Indians \Von their case. At last the white man had taken the trouble to read the plain provisions of this oft-misquoted Treaty of 1 866. Congress appropriated $606 ,936 .08 to com­ pensate the two tribes, but this computation was based upon comparative estimates used for convenience in allotting and represented only a small fraction of the value of the land. 19 A curious result of the joint ownership arrangement was that the individual Chickasaw suffered the same reduction in the value 1 1 Ibid., LXII, 5 J 3 - 1 5 ; Congressional Record, LI, 3302-3 ; Muskogee Phoenix, November 1 7 , 1907. 1 s Dawes Commission, Report, 1894, pp. 93- 123 ; Kappler, Laws and Treaties, I, 780. i n Suprr m