American Native Press Archives and Sequoyah Research Center

American Native Press Archives and Sequoyah Research Center

The Too-Qua-Stee Collection [a machine-readable transcription]


The Too-Qua-Stee Collection

By Too-Qua-Stee (DeWitt Clinton Duncan)

 

Table of Contents

July 1, 1876

July 22, 1876

October 21, 1876

December 23, 1876

October 19, 1878

February 9, 1881

June 15, 1881

July 27, 1881

August 31, 1881

September 28, 1881

September 28, 1881

December 23, 1881

October 6, 1882

October 13, 1882

October 20, 1882

October 20, 1882

January 26, 1883

March 16, 1883

March 23, 1883

April 27, 1883

April 27, 1883

January 21, 1888

July 11, 1894

September 19, 1895

September 3, 1896

May 13, 1897

May 20, 1897

May 20, 1897

May 27, 1897

June 10, 1897

June 24, 1897

June 28, 1897

July 8, 1897

July 29, 1897

August 26, 1897

September 9, 1897

September 16, 1897

October 7, 1897

October 28, 1897

November 25, 1897

December 2, 1897

January 20, 1898

January 27, 1898

February 17, 1898

February 24, 1898

March 31, 1898

April 14, 1898

April 21, 1898

June 2, 1898

July 7, 1898

July 21, 1898

August 4, 1898

August 18, 1898

September 1, 1898

September 8, 1898

September 15, 1898

October 6, 1898

November 3, 1898

December 29, 1898

January 27, 1899

March 9, 1899

April 27, 1899

June 8, 1899

June 15, 1899

June 24, 1899

July 20, 1899

August 3, 1899

August 31, 1899

September 14, 1899

September 21, 1899

September 28, 1899

November 30, 1899

November 30, 1899

December 21, 1899

January 25, 1900

March 1, 1900

June 7, 1900

June 14, 1900

June 16, 1900

June 21, 1900

June 23, 1900

July 5, 1900

July 19, 1900

September 6, 1900

October 4, 1900

October 11, 1900

October 18, 1900

October 25, 1900

November 8, 1900

March 7, 1901

March 14, 1901

April 18, 1901

June 13, 1901

August 8, 1901

April 10, 1902

July 17, 1902

July 17, 1902

December 17, 1903

May 19, 1904

August 11, 1904

November 24, 1904

February 1930

February 7, 2001

 

 

DeWitt Clinton Duncan [Cherokee] (1829-1909)

            DeWitt Clinton Duncan was born at Dahlonega in the eastern Cherokee nation in Georgia, the son of John and Elizabeth Abercrombie Duncan, who removed to the West with the tribe in 1839.  Young Duncan attended mission and Cherokee national schools before going to Dartmouth College, from which he graduated in 1861.  Because of the Civil War, Duncan did not return to the Indian Territory but taught school in northern states before finally settling in 1866 at Charles City, Iowa, where he practiced law, held petty political offices, and taught school.  For more than a decade after 1880, Duncan divided his time between the Cherokee Nation and Iowa, but served the Cherokees in various capacities: as attorney for the nation; teacher of English, Latin, and Greek at the Cherokee Male Seminary; and translator of the Cherokee laws.  Throughout his period and beyond, he attempted to write a linguistic analysis of the Cherokee language.  In the early 1880s he also began to write for Cherokee newspapers, particularly the Indian Chieftain at Vinita, where he took up permanent residence in the 1890s, and the Cherokee Advocate at Tahlequah.  Though he became known as a poet and fiction writer, Duncan was best known for dozens of letters that appeared under the pen name Too-Qua-Stee.  While the range of subjects in the Too-Qua-Stee letters is great, the predominant subject is the United States attack upon the sovereignty of the Cherokee Nation.  Though himself a product of assimilation, Duncan complained of that process.  Yet, ironically, because of it, he believed the Cherokees were better equipped to understand the whites and to resist encroachment upon their national sovereignty.  It allowed them to escape altogether the degradation of the reservation system to which other tribes were subjected in the last half of the century.  They escaped, as well, the resulting poverty and disease that so decimated the ranks of native populations.  Yet the price of the Cherokees’ escape was the dissolution of their nation and citizenship in the United States, as provided for by the Curtis Act of 1898.  Though Duncan saw these ironies, he raised his voice to the last in opposition to the destruction of his nation and, after the fact, lamented its passing and attempted to prick America’s conscience about its unfair dealings with the Cherokees.  The selections reprinted below reflect both the emotional appeals and the clear, rational arguments he made in behalf of the Cherokees.


Editors' Notes

The Too-Qua-Stee Editorial Project is an on-going endeavor, the aim of which is to present the extant work of the Cherokee writer in a modern edition.  De Witt Clinton Duncan wrote fiction and poetry, but it is his political prose that makes up the bulk of his writing.  These essays outline the major political and social issues facing the Cherokees (as well as other Indian nations, especially those of the Indian Territory) in a crucial period starting with the revival of the tribe after the divisive and destructive Civil War and ending with tribal dissolution in 1906.

Editorial work for this series was undertaken by a number of undergraduate students (names are listed below) enrolled in a textual editing class at the University of Arkansas at Little Rock.  Their work was closely supervised by James W. Parins and Daniel F. Littlefield.  Students prepared texts in a digital format, often working from nearly illegible copy from microfilm and photocopies of nineteenth-century newspapers.  They researched the notes on proper names, events, and issues important in the texts.  Over the years, other students have worked on similar projects to make available the work of out-of-print Indian authors in the SRC's Tribal Writers Digital Library.

Technical editing was undertaken by another member of the editing class, Cara Brookins.  Cara helped to plan and carry out the transformation of the texts from digital documents to web page.  Her expertise was invaluable.

As more of Duncan's work becomes available, it will be added to the collection.  Similarly, as more biographical work on the writer himself is completed, it will be added to the site.

General Editor:  James W. Parins
Technical Editor: Cara Brookins
Student Editors:
Janice Davis
Kelly E. Houston
Elizabeth C. Stracener
Todd J. Harris
Donna G. Eastham
B.D. Rain Story
Sandra G. Burnette
Janet E. Dotson
Lisa M. Riordan
Leila V. Montague
Jeff W. Miller
Sarah M. Walker
Stacy M. Harter
Angela M. Miller
Melissa Y. Noakes 

--James W. Parins

Sequoyah Research Center

 


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The Cherokee Advocate

July 1, 1876

Charles City Iowa , June 15th 1876

Mr. Editor:-The Advocate comes to hand regularly and today, just in the midst of a very excited contest over the election of delegates to the
Republican congressional convention which is to meet at Mason City on the 2nd day of August next.

            I tell you there is nothing like a good, old-fashioned election day in this country.  The 4th of July is something; but for generous excitement, it is not to be compared with this.  It is an American instinct to feel pugnacious when you come to vote.  Everybody is then wanting to knock somebody.  The man that can come to the poles, deposit his ballot, and go away without standing higher than usual in his boots, or saying some bravo thing, is not a true American.  Old men looking as dry as punk, and as though they had not felt a ripple of emotion for many years, on coming upon the ground, are seen to kindle at once into new life without any apparent cause, and swelling into the dimensions of their by-gone manhood, challenge the best in the crowd to a trial of jackson sticks.1

            Yet these election-day brawls are quite technical affairs.  Vituperation is conducted so strictly according to rule, that one rarely has occasion to complain of aggression or insult.  If you should say to a man, "If you say &c., you are a liar." there is no danger at all.  But if you should unfortunately forget the conjunction and say "you are a liar," then there is trouble on hand.  Forty or fifty men will have to crowd in between the belligerents and an extra amount of noise will have to be made.  Tongue-lashing is free under constitutional guaranty.  It makes but little difference how abusing you talk to your neighbor; but it is unsafe to allow your physical person in any way to come in contact with his.  Two men can stand face to face and vilify each other without the least danger of blows, as long as their noses are not in actual contact.

             The [unintelligible] these men have a [unintelligible] getting mad-on [unintelligible] their danger is evidently all on the outside of them; it does not soak through them, after the manner of  a true malice.  Everybody is only wanting to show himself the biggest man in the crowd, but desires to injure no one.  As to deadly weapons, such as knives and revolvers, there is no such things on the ground.  If you should search the pockets of all this boisterous crowd of men, you would be likely to find in each of them an old rusty jack-knife, a pocket book with a supply of dirty green-backs; nothing more.

            But yonder comes a lady upon the side-walk.  She has business in some of the offices of the Court House.  Is she not afraid to risk her person among this motley herd of men?  Some say it is dangerous for ladies to come near the polls on election-day.  But see; the vulgar storm grows whist as she approaches.  The crowd falls back and every fellow puts on his manhood while she is passing.  Men are not men unless ladies are with them.  How much our election precincts need the purifying influence of woman's presence!   I wish the Cherokee people would enact a law granting their women the right to vote and hold office; thus taking the lead among civilized nations in demonstrating the practicability of absolute civil equality.

            The method of voting here is good; but I like that in use among the Cherokees better.  There each voter steps up to the polls, and publicly announces his name, and has it recorded by the clerk in the column with the candidate he votes for.  But here the voter writes the name of his candidate upon a ballot and generally follows it up, deposit in the ballot-box; while his own name, at the same time, is entered upon the poll books.  In this way whom the voter votes for, is kept a secret.  This method, though it fails to cultivate an independence of spirit in the citizen, has nevertheless its advantages.  It is natural for the voter to desire to be on the winning side.  If the candidate that you voted for was beaten, you can venture to court the favor of the candidate elect, by claiming to have voted for him, and run no risk of contradiction.

            There are however, many features in the nature of political partisanship here which might be deemed an improvement upon things of a like kind among the Cherokees.  Parties here are not distinguished by their headships nor are they kept alive by any particular leader, nor does the death of any man, however great he may be imperil the existence of the party.  Politicians are not known as Blaine-men, Lincoln-men, Grant-men &c.,2.  They take their names, not from men, but from the principles which they advocate.  There is no man so wise and good, but that at some time he is liable to be in error and mislead his followers.  But principles are always true and unchangeable; and the party that is founded upon these is equally steadfast and reliable.

            The candidates now here before the people are the Hon. H. O. Pratt and the Hon. John G. Patterson.  The former is the present member of Congress; and is by far the stronger man of the two.  There is little doubt but that he will be returned to Congress for the next term.  I rejoice in this expectation; for I believe him to be not only a true man, and able, but also a friend to the Indians.

 

1  Jackson sticks: Perhaps a reference to billiard cue sticks, many of which were manufactured by the Jackson Co. Back

2  Blaine-men: Supporters of to James G. Blaine, Speaker of the House 1830-1893 and presidential candidate.  Lincoln-men refers to Abraham Lincoln, 16th President of the United States 1861-1865.  Grant-men refers to Ulysses S. Grant 18th President of the United States 1869-1877. Back

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The Cherokee Advocate

July 22, 1876

Mr. Editor:--Gen. Vandever1 was sent out a short time since by the Government to inspect the Indian service at the Red Cloud and Spotted Tail Agencies.  He has returned and filed his report; and I have just been reading it as printed in the Dubuque Lines.  By the way, Gen. Vandever resides in Dubuque , and is a resident of this state2. 

            I have been much interested in this report for the shirking manner in which it illustrates the inability of human governments, and perhaps individuals, to do right, when they have the power to do wrong with impunity.  Gen. Vandever is a man of much culture, of refined sensibilities, possessing a just appreciation of what is right between man and man; one would be led to think thus of him, from reading his report.  He lays the blame for those border disturbances where it rightfully belongs--upon aggressive whites and especially the soldiers.  He says that if the Indians were left undisturbed in the rights guaranteed to them by  treaties, there would be little cause to complain of their behavior.  Adventurers are allured into their country by the prospects of gold; the soldiers by a desire for military glory, and from these and a thousand other causes, hundreds of trespassers have been induced to squat upon these reserved lands in open violation of good faith.  Gen. Vanderver deplores these acts of injustice to the Indians and denounces them.  The first few paragraphs of his report breaths a spirit so fair, so just, that one who is in the habit of drawing conclusions hastily, is in danger of believing that he is about to recommend a forcible removal of these intruders, and a literal vindication of Indian rights..  But, alas, for the sequel.  Unluckily, the General finds these intruders now too numerous to be removed.  Yielding now, reluctantly however, to the force of necessity, he recommends that the intruders be allowed to remain, and that the Indians themselves be removed out of the way.  But thanks to the General for at least one gleam of consistency.  He recommends that the soldiers do not kill more than is actually necessary to secure the whites in their ill-gotten possessions.

            My paper to-day brings a brilliant account of a recent encounter between Crook's3 force and the "villainous Sioux."  The dispatches are indeed high sounding; those sent by Washington to Congress from Princeton and Monmouth are tame things compared with these of Gen. Crook  But why is he so proud of his victories?  Are they a matter of pride to the American people?  Are they just?  Are they worthy of the American arms?  Can these glowing bulletins disguise the true character of this border conflict and delude right-minded people into the false notion that it is a Christian warfare in behalf of civilization.

            But these settlers are now in the Indian country--there in thousands; too strongly fixed, too, to be removed.  But how came they there?  The order of the Government was explicit that they should not be allowed to enter the Black Hills , and Gen. Crook was ordered to see that this injunction should be obeyed.  Did he do his duty?  Was the command of the Government sincere?  How is it possible that this mighty host of white settlers should be allowed to pass the military and enter these lands so quietly and without resistance?  It is now claimed that necessity, which knows no law, demands that these Indians shall surrender their lands and submit to an unconditional removal.  But how come this military necessity?  By a law of Nature?  No.  According to the dictates of any principle of justice, humanity or Christianity?  Not at all.  Is it classable under any head of necessities except that which a nation is under, of doing wrong when it cannot be compelled to do right?

            These settlers are wrong doers.  They have no right to the homes which they now occupy.  They have intruded upon these Indians willfully, and without the least stress of necessity.  They had comfortable homes elsewhere.  There is enough of good territory outside of these reservations to give every American a comfortable home.  Yet with all these advantages inviting them in other directions, these white men have violated treaty-faith, intruded upon, and are now making war upon a helpless people, who, according to the official report of one of their own commissioners, are desirous of peace.

            This necessity?  This mighty necessity!  It is the demon that has prayed upon the aboriginal race ever since the days of Pizarro and Cortez4.  But what is it, if not only an irresistible purpose on the part of the white people to do a wrong to the Indians?  What is the moral aspect of this mighty necessity?  It is not that exalted kind that rules the gods and knows no law.  Nor that which reason and philosophy could plead as a justification of an injury to a fellow creature.  Its power is neither divine nor respectable; nor rise higher in its claims upon the regard of mankind than cupidity supported by invincible power.  But upon whom does this necessity press?  Upon the Indians, of course.  But are they responsible for its action?  They are to be driven out of their homes; they are to surrender to force, the very rights which they had entrusted to this same force for safe-keeping.  In leaving their homes in the Black Hills , they go as the victims of wrong, wrong, execrable wrong.

            But, it is said, the Government is the Indians' only protector, and this same necessity that drives the Sioux from their homes, also controls the Government.  In other words, the Government cannot constrain her citizens and protect her wards.  Now is this true?  Is it to be admitted in the face of all nations that Americans have a government whose mandates they can obey or disobey just as they may elect?  Are they Goths5? Are they Vandals6, who regard law, respect rules, only as agencies to cater to desire?  If this state of things does, in fact, exist, then we have verified the prophecies of the monarchists of 1876.  Republican form of government is a chimera--only a league between individuals for mutual protection, but impotent as to the exercise of internal police.

            We do not believe this.  The Government is pressed upon, in this matter, by no necessity beyond its control.  She can restrain her citizens from encroaching upon the Indians.  She can protect her wards as she has engaged to do.  That she does not face her duty in these respects is evidence of inexcusable dereliction.

Background history of this article:

The Battle of Little Big Horn had just been fought over the massive influx of gold hunters into the Black Hills area originally given to the Lakota Sioux in 1868 by the Treaty of Fort Laramie.  The Lakota were being systematically, and relentlessly, run to ground due to their victory over Gen. Custer. 

1 General William Vandever, (1817-1893): was a land surveyor, newspaper editor, Iowa congressman, and the first colonel commissioned in the 9th Regiment of Iowa's Volunteer Infantry.  His troops won The Battle of Pea Ridge, and he was promoted to brigadier general in 1863. He later became a California Congressman. Back

2 Dubuque , Iowa : Duncan lived in Iowa at this time. Back

3 General Crook: George Crook was a native of Ohio , a Union Army officer, Colonel of Ohio's 36th Regiment, Brigadier General in 1862, and commanded a brigade in The Battle of  Antietam .  After the Civil War, he fought against the Piute Indians, the Apache Indians under Chief Cochise, the Sioux Indians, the Lakota Indians at the Battle of the Rosebud, and the Apache Indians under Geronimo.  His last campaign ended in failure as he tried to capture the elusive Geronimo. In 1888 he was promoted to Major General and placed in command of The Department of the West by Pres. Grover Cleveland. He spent his last years speaking out on the unjust treatment of the Indian Nations.  Back

4 Francisco Pizarro and Hernando Cortez: In 1523, Pizarro conquered Peru , killing over 2000 Incan Indians in the process.  Pizarro held the Incan emperor hostage for gold and had him killed after payment was received.  Hernando Cortez marched into Mexico City in 1519, took the Aztec leader Montezuma hostage, enslaved the Indians in the gold mines, and shipped many tons of gold to Spain.  Back

5 Goths: A shortened version of Visigoths and Ostrogoths, who invaded the Roman Empire in 268.  Back

6 Vandals: An East Germanic tribe that invaded the Roman Empire during the 5th century.  Back

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The Cherokee Advocate

October 21, 1876

Our Indian Policy

Jane Grey Swisshelm1, writing from Germany upon this same subject, publishes an article in the Independent of September 4th in which she denounces the so called "Peace Policy"; arraigns the Quakers and the religious world in general as the unconscious abettors of Indian outrages; and. recommending the old "War Policy," says that, "the central pivot of the mosaic history is the right of a civilized nation to take from barbarians the land devoted to crime, and Christ re-echoes this principle in the parable of the talents."2

            The evils under which we, as a race, have suffered so much, and which now seems to be driving us so rapidly into extinction, have in the main been inflicted upon us by the baser sort of the white people -- border ruffians, illiterate, ignorant, unscrupulous, cruel.  The crimes of this kind of folk, we seem to think find some extenuation and are made perhaps, tolerable by the lowness of the place which they occupy in the scale of moral and intellectual life.  It is only when genius and literary culture have joined this terrible troop against us, that our disposition to cry out becomes irrepressible.

            Wrong, undisguised, is naturally hateful, and is generally abhorred, at least by the better class of mankind.  But when literature has taken it up, clothed it in decent, apparel, and introduced it into good society, it often ceases to be loathsome and becomes just as popular as truth itself.  For instance, the unprovoked slaughter of an Indian hunting party by a vigilance committee of white men, is indeed a horrible sight.  Yet many who, as eye witnesses of the scene, would turn pale with shame for a civilization that could tolerate such crimes, might, when intoxicated with the charms of a Swisshelm's pen, read the account with satisfaction and even bursts of applause.

            What we now most fear is this:  lest the talent of this fair writer, and that of others like her, countenanced by so powerful a paper as the Independent, may tend only too much to bring the illustrious example of William Penn into disrepute, to deprive us of the society of our cherished Quakers, to alienate from us the sympathies of the Christian world and by encouraging the knife of border ruffiansism, cruelly hasten our extinction as a race.

            This Indian question has two sides; though it is generally discussed by white men as having but one, and that always their own.

            But is it indeed true that a civilized nation has the right to despoil barbarians ad libitum?   Such we know is a popular dogma of the Anglo-Saxon civilization.  Yet it has no support in moral truth.  We are slow to believe that there are many white persons who would like to be known as personally possessing the mental traits which it indicates.

            The existence of this dogma is founded upon a very curious piece of human philosophy.  Men will often do collectively what they would shrink from individually.  Corporations are proverbially soulless and are capable of much wrong, while the individuals, of whom they are composed, all have a reputation for the fairest integrity.

            So it is with civilization, or rather the community which profess it.  Civilized individuals may be humane; but civilization is a demon whose only attribute is selfishness and whose only object is self-gratification.  It has destroyed countless thousands of our people without cause; yet who can find the white man that feels the least individual responsibility for this fearful waste of life.  Each shifting off on to others the blame which he himself should bear, all feel themselves to be innocent; and all unite in attributing our extermination to that impersonal, irresponsible something called civilization.    

            But Indians have always failed to see anything in the teachings of Christ or in "the central pivot of the Mosaic history;" to justify the white race in the exercise of this high prerogative.  We are taught by our native instincts, (and their teaching is gospel to us;) that the Great Spirit is wont to grant preeminent favors and special powers to individuals and nations only on the ground of their superior moral goodness.  But how do the two races, the Indian and the Anglo-Saxon, compare with each other in this respect?  Which has the better right to be called "The people of God"?  Which, on this basis, should be the despoiler and which, the despoiled?  These questions are satisfactorily answered by the records of transgression that are daily issuing from the public press.  Less that  a fortnight has elapsed since the appalling murder and bank robbery of Northfield , Minn. , was perpetrated by white men, and even now, while we are penning these words, within less than ten miles of where we now sit, the smoking ruins of a dwelling house mark a still more recent scene of blood and foul incendiarism.  But we forbear to specify these endless and thrilling evidences of civilization's depravity and unworthiness.

            Certainly the idea that a civilized nation is, on account of its consistent loyalty to the King of heaven authorized to make booty of barbarians, is quite enough to perplex far better faculties than those of an Indian.

            But the actions of a civilized nation should at least have the grace of consistency.  This, even barbarians have a right to expect.  If the white people claim and actually intend to follow the example of the Israelites, they should also consent to practice their virtues.  When Joshua determined to destroy the Caananites, he scrupulously guarded his conduct against all possible imputation of bad faith with them.  He neither granted quarter nor asked it.  His policy was blood and only blood; and this on the very rational theory that mutual obligations were incompatible with his plan of extermination.

            But the white race upon this continent have not been thus consistent in dealing with the Indians.  They have never had any settled policy.  To get them out of the way seems to have been the main end in view; and the expedients adopted for this purpose have generally been selected with reference to their present efficiency and with too little regard to the moral principal involved.  Sometimes we are recognized as "friends" "brothers" equals, competent to make war and contract alliances.  Then, again, we are told that we possess not a single attribute of national existence, but are only the "wards" of the Federal government.  So we have ever been one thing and the other just as the shifting interests of civilization have dictated.

            Without the facts before us, if it were easy to imagine the consequences of an attempt to put these two contradictory theories into practice at the same time.

            In pursuance of the one, the white people have made treaties with us and pledged the honor of their government for the faithful fulfillment of them; by the other, they have felt themselves authorized in the exercise of their so-called guardianship, to annul those same treaties from time to time, and to those of our guaranteed rights as best-suited their own convenience.  Under this alternate sway of justice and injustice, reason and absurdity, Indian treaties have accumulated upon the public records, until they are now numbered by the hundreds, yet they are nearly all defunct, and are interesting only as showing how vain it is for a weak people to rely upon the promises of a mighty nation.

            The truth of this can be illustrated by almost every page of our Indian history.

            It has not been long since the Cherokees were inhabiting a small territory lying within the present limits within the state of Georgia .  Here they had lived from time immemorial and their title to these lands have been again and again guaranteed by numberless assurances on the part of the United States .  The following are a few specimen articles from the treaties touching this subject:

            "Article 6.  The United States solemnly guarantee to the Cherokee Nation all their lands not hereby ceded."

            "Article 12,  That the Indians (the Cherokees) may have full confidence in the justice of the United States respecting their rights."

            And Gen. Washington , that bright embodiment of civilized honor and public virtue, is known to have concluded one of his official talks with a delegation of our people in the following words:

            "Rest, therefore, on the United States as your security against all injury."

            Relying upon these promises, the Cherokees surrendered themselves and their destiny into the hands of the white race in the following terms:

            "Article 3.  The Indians (the Cherokees) for themselves and their respective tribes do acknowledge all the Cherokees to be under the protection of the United States of America and of no other sovereign whatsoever."

            But not long afterwards, these lands were discovered to be auriferous.  Cupidity, the besotting sin of the civilization, was aroused.

            The state of Georgia proclaimed her jurisdiction over our territory and by legislation abolished our body politic, and distributed our homesteads among her own citizens by lot.  Bands of armed white men bust in upon us, drove us from our dwellings and took possession of our improvements.  But this was not all.  In order to force us away from our native land, a system of oppression was inaugurated, scarcely equaled in atrocity by anything in the history of nations.  Our teachers were driven from us; our schools were closed, our missionaries arrested and imprisoned; and a statute was enacted by the state prohibiting an Indian from testifying in any judicial proceeding to which a whiteman was a party defendant.  Anarchy reigned.  Shut out of the courts of justice we were jeered, insulted, and slain by white men with impunity.  In our distress we appealed to the federal government, claimed the benefits of our treaties and cited the words of Washington .  The Supreme court answered that we were not a nation and therefore creatures of too small account to claim the attention of so grand a tribunal.  We then turned to the executive Mansion.  But Washington was not there.  The then President3 closed his ears against our suit and bade us save ourselves by fleeing into the wilderness beyond the Mississippi .  Such was the end of our guarantee, and we departed.

            Who now can say that civilization did not in this affair, dishonor her self?  Yet such has been her practice in dealing with the Indians for the last three centuries.  Consider the Florida war.  The present scene in the Black Hills is but the repetition of this piece of Cherokee history, only more flagrant and therefore more bloody.

            Such is the old "war policy" ever fruitful of dishonor, shame and misery.  Its educational effect upon the Indian's mind is obviously evil in the extreme.  There is nothing more damaging to the success of a teacher's instruction than to be himself convicted of duplicity or tyranny.  If the American Indian is not civilized, it is not due to his own incapacity as a learner, but rather to the incompetency of the white man as an instructor.

            Contrasted with this, stands Gen. Grant's benign "peace policy" which is but a resuscitation of the old Quaker theory of William Penn. 

            That a cultured lady should be unable to see anything to commend in the example of Penn, is, we think an extreme characteristic of that type of civilization which we, as Indians have so much reason to hate.  That she should take him to be a defender of Indians, and condemn his friendly negotiations with them as "confidence-games," that she should prefer a fighting Presbyterian, to a "peace-loving Quaker,"  and scornfully attribute an Indians expression of friendship, in answer to kindly treatment, to a wicked cunning instead of his gratitude, illustrates, it seems to us, a most prodigious triumph of educational bias over conscience and common sense.

            It is only too true, the peace policy has not been very successful; Indian disturbances occur about as they did before it was inaugurated.  In this we are all agreed.  But as to the conclusion to be drawn from this fact, there is a difference of opinion.  The Joshuas--the friends of extermination--who have opposed the peace policy from the beginning, and have labored for its defeat, point triumphantly to the affair in the Lava Beds4 and the Black Hills5, and exclaim, "behold the results!"  The cry, too is echoed within the halls of Congress and the great President, the author of this sublime policy of peace, is denounced as a morbid sentimentalist.  But the fact is, the peace policy has not, as yet, proved a failure, as alleged; and this from a very obvious reason that its opponents have been strong enough to prevent a fair experiment.  The Modoc and Sioux wars, the disastrous death of Gen. Canby and Gen. Custer are not the fruits of peace policy; they are only additional admonitions, proclaiming to the ear of the civilized world the enormity of the "war policy"--that Indians are human beings and that it is wrong to oppress them. 

                  But there is a crisis for us at hand.  Our hopes, mingled with fear, have hung upon Gen. Grant during the last eight years.  When he leaves the White House, our gratitude will follow him into the retreats of private life; and we trust that the prayers of our race may, many years hence, breathe a fragrance about his dying bed that shall be sweeter to him than the grandest ideas of wealth, power and distinction.  We wait with anxiety the results of the coming election.  If Tilden6 is elected, may the Lord remember mercy.  What Gen. Hayes7 would do with us as a people depends upon the national candor of the American people.

            Quakers and all good people, pray for us.

 

1 Jane Grey Swisshelm(1815-1884): A journalist and the editor for two Minnesota newspapers, The St. Cloud Visiter, and The St. Cloud Democrat, she advocated for abolitionism and women’s rights.  Following the Sioux uprising of 1862, she sided with the settlers and advocated harsh punishment to the Indians.  Back

2 Parable of the Talents: Matthew 25:14  The term "Talent" refers to a unit of weight measure or monetary amount.  The parable is of three slaves holding money for their master.  The first two double their master's money.  The third buries the coin.  The first two slaves are said to be good while the third is wicked because he did not honor and try to better what he was given to hold in trust for another.  His coin was taken away and given to the first slave.  The wicked do not deserve trust or monetary gain.  Back

3 State of Georgia :  In 1802, President Thomas Jefferson agreed with the State of Georgia that all Native American Indians should be removed so that the state could lay claim to the land. The agreement was contingent upon Georgia 's cession of its western lands from which Alabama and Mississippi were formed.   Back

4 Lava Beds: A reference to the Modoc Indian War 1872-1873.  The Modocs made their last stand against the U. S. Army at what is now known as Lava Beds National Monument in Northern California and Southern Oregon.   Back

5  Black Hills War or Little Big Horn Campaign: These battles occurred June 1876, four months before this article was written, and was the last major Indian War on the Great Plains .  Ignoring the Treaty of Fort Laramie of 1868, great numbers of gold hunters poured onto the reservation, specifically into the Black Hills , held sacred by the Lakota Sioux.  After the defeat of the U.S. Army at the Battle of Little Big Horn, the U.S. Army pursued the Lakota relentlessly until they agreed to return to the reservation and give up a portion of their lands, including a 50 mile strip along the western edge, encompassing most of the Black Hills.   Back

6 Samuel J. Tilden: A presidential candidate in 1876 who won the popular vote over his opponent, Rutherford B. Hayes, but lost the electoral college vote.  Hayes was inaugurated as the 19th president of the United States.   Back

7 Rutherford B. Hayes: Hayes was elected the 19th president of the United States in 1876.   Back

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The Cherokee Advocate

December 23, 1876

Letter to the Editor

Mr. Editor:--An apology on your part for having published my letter "of the 30th ult.," though proper enough, was unnecessary; for it is well understood that one of the most valuable functions of the Advocate is to give expression to private opinion of public measures.

            I am well pleased with the dignity and candor of your remarks upon the propriety of the letter; for the views which you have taken of it are certainly philosophical and extremely sensible.  It was no such communication as should have called forth a reply from any source whatever.  In your own language:  "If those doings, (the acts of the delegations), have not been reported and published, no answer would do any good, except to report and publish as speedily as possible."  But if they had been reported and adequately published, then, truly, my letter would have been "an answer to itself."  The tenor of that communication was simply a candid expression of a desire to know how our public business was progressing at Washington in the hands of our delegations, at the same time suggesting the need of certain reforms in our diplomatic system by which dispatch, economy and proper publicity might be secured.  Now these matters were so pertinent, so reasonable, so practical and just that it did not occur to me that there could be any one in the Cherokee Nation to whom they could be in the least offensive.  At any rate there are certain motives of decency which should have deterred a "late delegate" from being the first to show signs of irritation.

            I am amazed however at the alacrity with which my cousin, Col. W. P. Adair1, has written me down as "an opponent of the national authorities."  I do not know that I get the exact import of this language.  Does he mean to call me a traitor?  Is it treason for a private citizen to question a public policy or to criticize the acts of our national officers?  I should like very much to understand the criterion by which my cousin is wont to determine a public enemy.  Is it acts of disloyalty?  My career from childhood is open to inspection.  I may challenge my cousin, or any one else who may sympathize with his views, to point out a single word or act of my whole lifetime, that has ever evinced anything but the purest fidelity to "our national authorities."  He shows anxiety lest my letter should injure the fair name of our government by "creating an erroneous impression abroad concerning the management of the affairs of our nation."  I commend this tender jealousy for the reputation of our government; and pledge him my hearty support.  But to have it known abroad that a private citizen cannot express his opinion of public affairs, except at the risk of outlawing--I should like to know what could be more damaging to any nation.  Yet this is the very lesson which my cousins letter is teaching the civilized world to-day.

            He says, "That these laws," (laws of the Cherokee Nation,) "have required our delegations to report the general results of their missions and these laws have been strictly complied with in every instance, for the last ten years,"  I admit this to be true, and have made no question upon this point.  My inquiry is this:  What are our delegations doing while they are sojourning at Washington .  This question my cousin utterly fails to answer.

            I admit that, at long and weary intervals, I have seen the Advocate, now and then, a running rehearsal of affair in Washington , mostly from the pen of my cousin, and addressed to some private individual, or to everybody, or to nobody in particular.  But as to anything like a frequent and duly authenticated statement of facts touching the business of the mission, and addressed to His Excellency, the Principal Chief of the Cherokee Nation--as to anything going to show that our delegations, while they are sojourning in Washington, hold themselves responsible to any power, I have failed to see anything of the kind in the Advocate or anywhere else; and I may here repeat with pertinency, that "we submit the question, whether the Cherokee Government has ever in any instance had any thing to do with our diplomatic relations with the U. S. farther than merely to select the delegates and furnish them with money."

            What I have said on this subject has been in the most friendly feeling and the utmost good faith.  I have intended no disrespect to the government or any of her officials.

            Those who will read my letter "of the 30th, ult." with due candor, will be compelled to admit that it contains no slur whatever upon the Old Settler delegation or anybody else.  The gentlemen composing that delegation are all men whose character and ability I profoundly respect.  But as they are the chosen agents of the people in the execution of a public measure, to pass their acts under a candid review, is a privilege which is in perfect harmony with the genius of all free nations.  While they have my sympathies in the work assigned them, I shall nevertheless be allowed to say that, in my opinion their plan of operation was from the beginning, less hopeful than it could have been, and also prophetic of long delay and needless expense.  And I shall do no violence to any one's feelings, rights or reputation, to any that if that delegation should, for the future, take more active measures to keep the people advised of their action, they would have the better confidence of the community which they serve, besides the grateful consciousness of having performed a bounded duty.

            A word in regard to my cousin's personal flings.  He sneers at my patriotism.  Well a hunchback is not so reprehensible as the disposition that can sneer at it.  Natural weaknesses are entitled to immunity everywhere.  After the manner of a consumption, my love of country was inherited from my ancestry, therefore should be entitled to the civility and commiseration of those who are not afflicted as I am.

            As for my cousin and critic I verily believe he has never performed the least service for his country that she has not amply paid him for in dollars and cents.

            All through his letter, in various forms of expression, he manages to remind me that I am no more recognized as a member of the Cherokee people, that I am expatriated; lying under a species of ostracism.  Now I am perfectly well acquainted with the whole theory of this thing; and do not hesitate to pronounce it the very perfection of absurdity.  I remember that it has not been long since that even a white man carpet-bagged himself into the Cherokee Nation and, claiming himself to be an Indian at home, attempted to slur me as an alien.

            I know there used to be, and perhaps now is, a provision of the Cherokee law which might have the effect to cut me off from my people.  Now I have no fault to find with this law on personal grounds but will here venture my opinion of it merely in the light of principle.  It ought to be repealed; it should be repealed at once, simply because it is an outrage upon every noble instinct of the human breast.  It places a fellow citizen, whatever may be his worth to the commonwealth, upon the same footing with an old promissory note.  No sooner has crossed the boundary line of the territory outward, than this statute sets time to running against him; and, ere he is aware of it, he is outlawed.  I know of no other code of laws on earth that contains such a provision.  On the contrary, all nations except my own, feel a pride in claiming their citizens wherever they may wander, and, with the yearnings of a mother, will send after them the arm of protection until they have formally renounced her allegiance.  A white man in foreign lands, whatever may be his state of depression, at the sight of his country's flag, springs into new life and is a man again.  But when a Cherokee whose adventurous spirit has led him abroad for a few years, sees some memento of his mother country, it is only to remind him that he is an outcast.  No one can be a true man unless he has a native country to love.  Expatriate a Cherokee, and if he is not ruined, it is only because the innate grandeur of his nature is proof against all destruction.

            As for myself, however, I have never allowed the unnatural rigors of this law to come between me and my devotion to my native land.  With a full knowledge that the doors were closed against me, I have never ceased, with my tongue and my pen, to defend her, and, as I trust I possess some instincts that are not mercenary, shall continue to do with without hope of reward--no, not even the privilege of "riding into the next delegation on a Trojan horse."

            I indeed hope that the ensuing Council will wipe this unworthy statute from the books, and that, for the future, no one of my countrymen will think of twitting me, or any other Cherokee abroad, for using the pronoun, "we," in speaking of the Cherokee people.

            Once more, and here my cousin will permit me to use language adequate to the emergency.  He  asserts (in indirect words of course the usual garb of falsehood,) that I was employed by the Old Settler Cherokees to prosecute their claim against the United States Government.  Now this is not true.  I indeed offered my services, but they were not accepted by the convention.  It is true, that by the courtesy of the Executive, I, with other gentlemen, was permitted to inspect the papers pertaining to this claim.  They remained in our hands for a few hours after which they were all, without exception, duly returned to the files.  Now all these facts  transpired during the sitting of the convention and under circumstances which preclude all probability of my cousin's ignorance of them.

            Treason and embezzlement--surely the liberty with which my cousin has heaped up charges against me, prove him to be a most admirable hand to hunt down a reputation.  It is vain for him to make his intent with "they say," and it is said;" for, both in law and in ethics, it is just as bad to propagate as to perpetrate a slander.

            In view of his own bright honor as well as the exalted position which he occupies before the public eye, I know my cousin cannot afford to make himself a party to such a foul piece of detraction.  With the utmost confidence, therefore in the nobleness of that nature which I know he has inherited from old George Washington Adair, whose memory we all revere, is all wait, feeling assured that he will in due time do me the justice of a suitable retraction.

 

1. Col. William P. Adair: was a Colonel of the 2nd Regiment, Cherokee Mounted Rifles fighting for the Confederate States in the Civil War under Stand Watie.  After the War, he served the Cherokee Nation as senator, justice of the peace, delegate to Washington, and assistant principal chief.  In some circles, it was customary to use one's military title after service.   Back

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The Cherokee Advocate

October 19, 1878

Mr. Editor:  The Territorial Committee1 is now, or perhaps soon will be in the Nation.  Their mission I am told, is one of inquiry.  What now, are they going to inquire about now?  To what end are these inquiries to be made?

            I can see two very plain ends for which these inquiries may be made.  You know there is a great deal said about the Indians standing in the way of “progress,” the white man's “progress,” the “progress of civilization,” as they word it.  Now it may be the chief aim of the committee to inquire and find out some way to get us Indians out of the way of “progress.”  They said we were in the way of “progress” when we lived in Georgia .  They sent their investigating committee among us to inquire, they said, for what had best be done for the civilization, Christianization, elevation, and happification of the Cherokees.  But after all, the civilization and Christianization of the Cherokees did not prove to be the chief end in view.  They simply were seeking to get us out of the way of “progress” you see.  Hence, they bound us hand and foot and sent us off into the wilderness beyond the Mississippi to be civilized, Christianized, elevated, and happified.

            Now it may be something like this that the present committee is sent to inquire after.  If so, then let the Cherokees meet these gentlemen in general council and with that frankness and firmness which can be inspired only by conscious integrity.  Tell them that you are not in the way of “progress” and never have been.  And if they tell you that you are a bother to the extension of railroads, notify them that railroads are not virtue, honesty, and truth – that they are not civilization, but only the godless achievement of a remorseless money power.  Tell them that wealth and power, nor even intelligence are civilization.  Tell them that civilization consists in the practice of stint justice between man and man; justice mingled with mercy.   Tell them frankly that you feel yourself under no moral obligations to surrender your heritage merely for the white man's aggrandizement.

            Or it may be that their gentlemen have indeed come to us in the spirit of Christ.  They may be coming to us with hearts big with a fellow feeling for us in our national misfortunes.  They may want to know our grievance in good faith, to redress them.  If so, tell them the whole story.  Tell them, above all things, you desire to be let alone.  Tell them that by treaty they promised us peace in the Indian Territory .  Tell them that we came to this Territory hoping to find peace.  Tell them how and in what respects you have been troubled; that your country has been invaded by railroad companies and land grabbers;2 that machinations of this class of white men are continually annoying you with fears lest at some moment you should be dispossessed of your country and be overrun by a white population; that honorable members of Congress are busily, all the time from year to year, lugging bills into Congress, proposing the dissolution of your ancient and beloved nationality; that although these bills are all infamously unjust and in utter violation of public faith pledged to us by former administration, yet the gentlemen who bring these bills go unrebuked by that national dignity which they thus coolly and deliberately disgrace.  Tell them I say the whole story.  Tell them about the white intruders that are crowding in upon you and ask them to keep these bad men at home, that you don't want them among you.  Tell them about the U.S. marshal and how he is scouring your country from one end to the other, always busy as an ant, hunting down Cherokee citizens and dragging them off to be tried in a foreign country by jurymen of a strange race and by judges that are by nature biased against the Indian.  Tell these Congressmen how our citizens have to lie in jail for months at Fort Smith and in other stinking dungeons of civilization, arrested for offenses that they are not guilty of and after a long period of tyrannical incarceration, they are discharged without trial to come home to their bereaved families, broken in health, and often to die of disease contracted in jail – all this too, that only one little white man, a U.S. marshal, shall be able to accumulate a little fee during his official term.  Tell these Congressmen the whole story and I am sure that if they come, as they claim to do, as the representatives of a benign Christian civilization, they will hear you patiently and candidly.  And when they have got your grievance, with a force of determination becoming their high and pure profession, they will go to work and provide the needed redress. 

1The Territorial Committee is comprised of white politicians, it sought ways to introduce “civilized government” to the Indian Territory so that the railroads could easily reach the Gulf Coast more speedily. For its purposes, "civilized government" meant abolition of tribal government and adoption of the system in place in other U. S. territories.  Back

2 Land Grabbers were people of European descent who ignored the establishment of the Indian Territory , invaded the country, and tried to “grab up” as much as they could for themselves.    Back

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The Cherokee Advocate

February 9, 1881

Vinita, January 29.

            Mr. Editor:  In studying the debates in Congress that are now going on upon the "Allotment Bill"1 one cannot fail to observe how utterly unable civilization is to grapple with barbarism upon the great moral issues involved in the controversy.  Barbarism has the advantage; her feet are planted upon eternal Truth and civilization is making herself infinitely ridiculous in her vain attempts to gratify her cupidity by making injustice to be justice and wrong to be right.  That is a job that defies the power of the U.S. Congress; it cannot be done.

            Mr. Vest2 in his recent speech in the Senate upon this bill, wandered far out of the track of legitimate debate in order to manufacture a little thunder for his friend, Captain Payne3 to be used in his case now pending in the United States Court at Fort Smith .

            He begins his arguments all right like a lawyer, logician, like a man of some enlightenment, indeed. Take a civilized man, a Christian, as though he wanted justice only, and that founded on correct law and sound morals.  But the outrage which his hypocrisy was endeavoring to perpetrate upon those poor Indians was too great for the back of civilization to carry; it broke down.

            He admits that the so-called Oklahoma lands were originally ceded to the government for the use of Indian tribes.  But he says Congress has since passed a law prohibiting Indians from being moved into the Indian Territory .  Therefore, as the lands were ceded and the government has concluded not to locate Indians there, it follows, as a conclusion of law, that white men have no right to enter.  He illustrates the case: said he, "If Brown purchases from Jones a tract of land upon which Brown desires to locate his son and his son afterwards dies, will any lawyer pretend that the land belongs to Jones?"  Attention, Barbarism!  Civilization here stoops to the low business of petty fogging.  Mr. Vest, here, is playing a fraud upon his own understanding.  He knows that his supposed case is not parallel to the facts.  If Brown had agreed in writing, for valuable consideration, that no one except his son should occupy the land, then "any lawyer" would assert that the terms of the argument would have to be fulfilled; nobody but the son could ever occupy the land without the consent of Mr. Jones.  In purchasing the Oklahoma lands from the Indians, the United States agreed that nobody but Indians should be allowed to live there.  And there is no lawyer, except such as belong to the same school with Mr. Vest, but what would admit that this agreement should be fulfilled.

            Civilization, here, attempted to lift herself by her own footsteps, but she could not do it.  And in this predicament, she betook herself to her old hackneyed habit of vaporing about her own great glory, her mighty power, her striding progress as though her glory, her power, her progress, could justify her in doing a dirty [trick].

            Mr. Vest says, "The courts can never punish a single person arrested and the end will be, as it has always been, the onward march of civilization (?) and the Anglo-Saxon blood."

"Not in vain the distant beacons,

Forward, forward let us range;

Let the great world spin forever,

Down the ringing grooves of change."4

            This is the argument of a bandit.  I will not credit civilization with it but let us endeavor to appreciate it.  A parallel will be useful here.

            A poor, honest farmer has a fine horse in his stable a neighbor takes a liking to the animal and would like to get possession of him but he is met at the door by the poor farmer with a parchment in his hand, when the following colloquy ensues:

            [Farmer, unfolding parchment.]  Sir, when you robbed me of all my active horses and left me only this one, you then solemnly promised me that you would never take this last one from me "as long as grass grows and water flows," and here is your written guarantee.  Your honor is my only protection.

            [Neighbor.] Sir, that is true, but there are other things to be considered in the case.  I belong to a better race of men than you.  I am an Anglo-Saxon.  I am more intelligent than you.  I am richer.  I can build bigger houses, clothe myself better, and appear better in society.  The truth is, I am a civilized man; I am a Christian; I have the Bible to read; and I understand God's great plan of salvation and you do not.  I am educated and can read, write and cipher; you cannot do these things.  The fact is, I have a more urgent need of horses than you and can put horses to far better use than you can.  I am mightier too, than you.  I am, indeed, almost almighty.  You are but a shadow before me.  I can twist you around my finger in a jiffy.  I can put you in my pocket.  I can kick you as a football in my sport and there is none to deliver you from my power.  I have the power to take your horse and there is none to hinder me.  I say, I am a civilized man.  You are a barbarian.  I am the offspring of a glorious, wonderfully glorious civilization.  The Almighty God has a peculiar liking for me.  He honors me and authorizes me to kill off all such worms as you, as Joshua did the Canaanites.

            [Farmer.] Here is your parchment, sir.  Your honor is my only protection.

            We will wait to see what Mr. Vest will do with the horse.

            When civilization, Anglo-Saxon or any other, renounces its allegiance to moral principle and attempts to propagate itself by means of injustice and oppression, it is entitled to the respect of neither God, angels nor Indians; and the heathen may well hate it, and reject it with scorn and contempt.

Allotment Bill: In 1881, Carl Schurz, Secretary of the Interior and Indian Reformer, worked to pass a bill (a.k.a. the Coke Allotment Bill named after Richard Coke of Texas ) that declared that Indian lands held a better purpose than hunting and should be used for agriculture by the white man.   From the end of the Civil War until the turn of the century, great pressure was brought to bear on the federal government by railroads, homesteaders, and land companies, and other commercial interests to take land held by the Indian nations and divide it into individual plots.  Tribal members would be allotted one of these plots, usually 160 acres, and given title to it.  Tribal title to the land would be extinguished.  A major part of this scheme was that any “surplus” land, i.e., acreage “left over” after allotments were made, was to be sold to white settlers. In spite of almost universal opposition by the Native Americans, legislation to this end was passed and the land allotted.   Back

2 Mr. Vest: George Vest of Missouri recommended an amendment to the Coke Allotment Bill which would force more Indian tribes to participate in the allotment process.    Back

3 Captain Payne - “The Payne case” refers to the following: “The so-called “boomers” were a group of whites who hungered to settle Indian lands not occupied by Indians. This group, whose most prominent leader was David L. Payne, claimed that any lands not actually occupied by Indians were public lands open to homesteading on the theory that the Indian nations had ceded those lands to the United States in the 1866 treaties. As the boomers grew in number, they set up camps on the southern border of Kansas and began to plan their occupation of unassigned lands in the Indian Territory . On April 26, 1880, Payne led a small party of boomers across the Kansas line. They began staking claims and built a stockade on the Canadian River not far from present-day Oklahoma City . Federal troops arrested Payne and his group and escorted them to the Kansas border, where they were hailed as heroes. A second incursion in July resulted in the Army taking the boomers into Fort Smith to appear before Judge Parker. District Attorney Clayton filed a civil complaint against Payne under the intercourse laws on Lockesley August 13, 1880. Demurrers and motions to dismiss and counter-motions delayed the decision in the case until May, 1881. Parker ruled against the boomers, holding that the unassigned lands were not open to homesteaders, and fined Payne $1000, the maximum under the intercourse law. United States v. Payne, 8 F. 883.    Back

4  Tennyson “Not in vain the distant beacons…” These lines of poetry are from “Lockesley Hall.” The line and a half which fill out the couplet are "Forward, forward let us range,/ Let the great world spin forever down the ringing grooves of change." These words are often used to illustrate the European-American idea of progress in the nineteenth century.    Back

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C. N.

June 15, 1881

Vinita, C.N., June 8, 1881.

Mr. Editor:  I notice you have printed the opinion of Judge Parker1 in the Advocate of June 1st and in the same issue the following editorial note appears:

            "We publish the decision of Judge Parker in the Payne case2 this week in full, but we were waiting to hear from D.W.C. Duncan in regard to the matter.  We have not heard from him yet."

            I fear there is some mistake about this matter and in order that no one may be exposed to the evils of error in the promises, you will do me the kindness to publish the following facts in your next issue:

1.   The business entrusted to my hands was a law-suit, a species of business, generally and in this case, entirely devoid of exciting incident.  There has been nothing in the case to report except the individual stops taken from term to term by the court.

2.  These steps I have reported to the Executive and the Advocate as well, as they occurred.

3.  When the case was argued and submitted on the 8th of March last, which was the only incident of interest to the public prior to the final decision, I at once transmitted a report of the matter to the Advocate for publication but the communication never appeared in print.

4.  On the 3rd day of May last, the court rendered its decision.  The opinion comprised more than thirty pages of legal "cap."  I procured a copy at considerable expense and, being Secretary of the international committee3 it devolved upon me under order of the committee to furnish the Executive of the five nations with a copy of the committee's final report accompanied with a copy of the opinion.  This duty, on my part, involved much labor and caused unavoidable delay in forwarding the final report of the committee to the Executive at Tahlequah.

            But this report, including the opinion, was so forwarded as much as two weeks before the editorial note above quoted appeared in print.  At the time this report was forwarded to the Chief, I addressed a note to the editor of the Advocate informing him of the fact, at the same time suggesting to him the propriety of getting a copy thereof from the executive office for publication.

            This measure I deem to be legitimate as the report was a government paper and the press was the government's organ.  But grant ing mistake in this respect, had my friend, the editor, duly informed me of this my error, I should have been very glad to sit down and transcribe the whole thing in order to furnish him with a press copy.  It has not been my intention to be derelict.

1Judge Isaac C. Parker held the bench of the U.S. Court for the Western District of Arkansas in Fort Smith , Arkansas and was known as “The Hanging Judge.”    Back

2 Captain Payne - “The Payne case” refers to the following: “The so-called “boomers” were a group of whites who hungered to settle Indian lands not occupied by Indians. This group, whose most prominent leader was David L. Payne, claimed that any lands not actually occupied by Indians were public lands open to homesteading on the theory that the Indian nations had ceded those lands to the United States in the 1866 treaties. As the boomers grew in number, they set up camps on the southern border of Kansas and began to plan their occupation of unassigned lands in the Indian Territory . On April 26, 1880, Payne led a small party of boomers across the Kansas line. They began staking claims and built a stockade on the Canadian River not far from present-day Oklahoma City . Federal troops arrested Payne and his group and escorted them to the Kansas border, where they were hailed as heroes. A second incursion in July resulted in the Army taking the boomers into Fort Smith to appear before Judge Parker. District Attorney Clayton filed a civil complaint against Payne under the intercourse laws on Lockesley August 13, 1880. Demurrers and motions to dismiss and counter-motions delayed the decision in the case until May, 1881. Parker ruled against the boomers, holding that the unassigned lands were not open to homesteaders, and fined Payne $1000, the maximum under the intercourse law. United States v. Payne, 8 F. 883.    Back

3International Committee —      Back

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The Cherokee Advocate

July 27, 1881

Mr. Editor:  The Indian Nations of this Territory have no power to enact a law which a citizen of the United States is bound to obey.  Corporations organized in the states and operating in the Territory are on the same footing, in this respect, with individuals; they are not subject to our Indian laws.  There are, perhaps ten thousand people habitually within the Indian Territory .  That is about fifteen per cent of the entire population who are almost independent of human law as the eagles that dwell amid the clouds.  Where this fact is considered, the difficulty which these Nations experience in maintaining good government can be appreciated.  What if the United States government should be subjected to the same embarrassment; would she succeed as well as these Indian Nations?  These facts assume an immense importance when considered in connection with the railroad power in this Territory.  There is nothing on earth so independent of law as railroads in an Indian country.  They cannot be touched even by the United States intercourse law.  In this respect, they have the advantage somewhat of individual non-citizens.  Their power over the rights, liberties and lives of the people, too, is frightful; being almost as limitless as their own exemption from accountability.  In respect to the Indians, these corporations are tyrants of the most unmitigated character.  On the same terms under which the people of this Territory have to endure them, there is no free enlightened country that would allow them to exist within her borders for a moment.

            Let us study the subject with patience and candor:

            Suppose an Indian at Muskogee should ship a herd of fat steers by the M. K. & T.1 for St. Louis and that the railroad company should bring them as far as Choteau2 and there slaughter them, sell out the meat, and pocket the money.  This would be an outrage, of course, but what remedy would the shipper have?  None whatever.  Every dollar's worth of freight put into the hands of railroad companies in this Territory, for shipment, is an absolute trust and there is no law to compel them to fulfill that trust or account to the owner.

            This is not so in the states.  The states keep control of their railroads and continually watch with a jealous eye between them and the well being of the people.  Before Kansas would allow the property of her citizens to be exposed to such unreasonable hazards, she would lash everything like a railroad out of the state in less than a fortnight; so would any other free country.

            Follow this point further:  Suppose an Indian should take the cars as Vinita for Muskogee and the conductor should carry him down to the middle of the prairie between Prior Creek and Choteau and there, in a winter night, eject him from the cars without cause.  And suppose this passenger should lie there all night in a helpless condition and come near freezing to death.  Now for an outrage of this kind, in the states, the conductor would go to the penitentiary and the railroad company would have to answer in damages in a sum ranging from fifteen to twenty-five thousand dollars.  But how stands the case with us?  Against the company there would be no redress whatever.  Take another case somewhat nearer to actual experience:  Suppose you are a farmer living in the Indian Territory near the railroad and your horse, (or your self, as for that matter) is, through the negligence of the engineer, caught by the train and killed.  What can you do about it?  Nothing, except to endure your loss with resignation.

            Again, in every free country where railroads are in use, the government is invested with power to protect its citizens against extortionate tariff rates.  What, in this respect, has been the experience of the people of this Territory?  Here we have nothing to shield us from that kind of oppression.  there is no law touching the subject which the railroad companies are bound to respect.  They are a law unto themselves; that is, they are lawless.  It has been but a short time since an Indian had to pay ten cents a mile on the M. K. & T. in the Territory but as soon as the train touched Kansas soil, it dropped to less than half that sum.  They could have charged us ten dollars just as easily as ten cents.  There is nothing to regulate the conduct of these roads, except their own pecuniary interest.  They plan to bleed the people of, at least, all their surplus3 change.  They soon found that the private revenues of the Territory were not sufficient, at ten cents a mile, to enable its inhabitants to patronize the road.  The people were compelled to continue horseback, notwithstanding, the great civilizer was snorting and screaming up and down their country.  In order to save their income in the Territory from the annihilation with which their own extortion had threatened it, they, at length, reduced the fare to something within the reach of the utmost of human ability to pay.  The fare now stands at five cents a mile which is still higher than is tolerated in almost any other country in the civilized world.

            The parallel between the practice of railroads in the states and that of railroads in our Territory may be carried still further:

            A state never gives anything to a railroad.  The great family of commonwealths that constitute the American Union, seldom, if ever, think of squandering their effects in that manner.  Nor do these corporations expect or ask why such thing.  On the other hand, they are required, like private individuals, to pay their way.  In the states, they are made to buy their right of way and to pay for all damages caused to land owners by means of laying their roads.

            But how are they dealing with us?  Their cry is, “Subsidy! Subsidy!”4  But where is this Subsidy to come from?  In the states, they got their subsidies from the general government and out of the continental domain.  But within the five nations of this Territory, the government owns no land with which to subsidize.  They propose to exact from these Indian Nations, by the stony hand of power, that which they could not have the hardihood to ask of New York or Pennsylvania.  To accuse them of nothing worse, they are not disposed to deal fairly with us.  They already own magnificent road beds extending hundreds of miles across our country.  How did they get them?  They took advantage of our necessities in 1866 and using the hand of the government wrung them out of us without giving us a "red" in return.  But this is past.  And now what of the future!  Do these corporations propose to do any better by us in time to come?  Not at all.  Their attitude toward us, at the present time, is that of arrogant oppression.  They know full well that the Indians are the sole proprietors of the soil.  If they meant to be just, they would withdraw their lobbies from around congress and, like honest men, come and make their application to the Indian Council.  There is no power that can considerably, with reason and justice, grant what they seek, except the Indians themselves.  The fact that they have, so far, ignored the rights and the will of these nations and have invoked the power of the government instead of persuading the consent of the Indians, is proof that they have no regard for the right and that their intentions with reference to the tribes of the Territory are extravagantly unjust and dangerous.

            We are told, however, that these corporations are sure to accomplish their purpose and that our Indian Council had better run ahead of congress and give them what they want before the government can act.  This policy is objectionable for several reasons:

1.  Because it is not honest; it would be cheating.  Congress out of the gratitude of these corporations for which she has already been bargaining.

2.  Because the principle is false.  No one ever made anything by giving that which he could not withhold.  These corporations rely upon the arbitrary power of the government.  If that power is unjust enough to grant their request, policy, on our part, is played out.  No lion that had caught an ox was ever known to sell his chance for less than a good square meal.  The most liberal conduct on our part, at this crisis, could only have the effect to commit us, by acquiescence, to whatever may be done without effecting the least modification of the final result.

3.  Because it would impeach the manhood of our nation and witness against us in history as a people holding loose ideas of our rights and too pliant to sacrifice anything in defending them.  We are not unfriendly to railroads but are forever implacably hostile to that system of tyranny, oppression, and extortion which they have inaugurated against the people of this Territory.  Railroads in entering the Indian Territory should be required to subscribe to the same conditions by which they get admittance into any other civilized country.

4.  They should pay for their right of way, unless the Indians should see fit to give it to them.

5.  They should be subjected to the common law in reference to the duties and obligations of common carriers.

6.  They should be subjected to the local laws of the Territory so far, at least, as to enable the people here resident to protect themselves against such oppression as may be attempted upon them by these powerful corporations.

 

1 M. K. & T.: The Missouri, Kansas , and Topeka Railroad, also known as the Katy, was the main north-south line through Indian Territory . The first railroad in the Territory, it began in 1865 as the Southern Branch of the Union Pacific Railway.    Back

2Choteau, Kansas : near the border of that state and Indian Territory.    Back

3Surplus change: A comment, perhaps, on territorial bills in Congress that would allot land in severalty to tribal members, then sell the so-called surplus land to whites.   Back

4 Subsidy: Railroads demanded that they be granted land in addition to right of way over which the track actually ran in order to subsidize their operations.     Back

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The Cherokee Advocate

August 31, 1881

(August 20th, 1881)

Mr. Editor:  The following extract is from Wheeler's Independent, ( Fort Smith ) of the 17th inst.

            “The government has been trying to civilize the Indians, lo!  these three hundred years; and what is the result?”

            “It is noticeable that nobody is testifying to the success of the experiment except parties whose interests are promoted by such a belief.  The conduct of the Indians, in several notable particulars, give the lie to all these interested testimonies.”

            “Who ever heard of a civilized people being prejudiced against civilizing improvements, such as railroads?”

            The first thing that strikes the attention in reading the above extract is the waspish petulance of civilization.  What is the philosophy of this phenomenon?  Irritation is the sign of weakness.  White men, civilized gentlemen, presuming to champion so glorious a cause as “the progress of the human race,” should feel themselves sustained by the grandeur of their mission and the superiority of their enlightened faculties. They should, at least, have self-possession enough to bear themselves with becoming dignity while in the discharge of their exalted functions.  The best thing that civilization could do, for her own credit, would be to stop scolding the Indians.

            If the government of the United States has labored “three hundred years” to civilize the Indians and has made an utter failure of it, what a horrid commentary it is upon her capacity as a civilizer!  Yes, it is absolutely true; there is not a single Indian in the world that can attribute his civilization to the government of the United States .  The cause of this miserable failure lies somewhere.  Where is it?  Not in the Indian; for already, thousands of them have become civilized in spite of the government's bungling work.  While the process of civilization has been steadily going on among the Indians for “three hundred years,” how is it that the government comes up, at this late day, with nothing to show as the fruits of her own labor in this glorious work?  History answers this question:

            The government has been wrangling with the Indians for “lo! these three hundred years,” instead of teaching them.

            I have now, lying on my desk before me, the July number of the “North American Review.”  On the first page begins an article by Hon. Carl Schurz, late Secretary of the Interior, on “the present aspects of the Indian problem.”  He says, “The history of our Indian relations presents, in great part; a record of broken treaties, of unjust wars, and cruel spoliation, is a fact too well known to require proof or suffer denial.”

            This is the way the government has been laboring “three hundred years” to civilize the Indians - deluding and victimizing them through the practice of bad faith, despoiling them, and harassing them in “unjust wars.”

            In order to fully appreciate this method of civilizing people, let us suppose a case.  Suppose Sitting Bull should charge into Fort Smith with a band of his mounted cavalry, sack the town and burn it, gut the office of Wheeler's Independent, capture the editors, bind them hand and foot, transport them to some distant point from home, cut them off from every pleasing association of this earth-life that they had ever before known, place them upon a small plot of ground called a reservation, draw around it a line of troops armed with rifles to take them off in case they should attempt to cross the boundary without a written pass signed, “Sitting Bull,” then commence feeding them on bad beef in scant quantities, and when hungry, cold, homesick, worn to set the Independent to praising it as something grand and good – it is not necessary to alter a single fact.  Put white men in the place of the Indians and the work is done.  So devoid of principle is the journalism of civilization!

            Nothing is more manifest than that the labors of the government for the last “three hundred years” among the Indians has been anything but civilizing; it has been killing.

            “Who ever heard of a civilized people being prejudiced against railroads?”

            If we admit the laboring masses of the people of the United States to be civilized, the question is easily answered.  The greenback party1 is strong enough to make itself felt in congress and its vital principle is hostility to banking and railroad monopolies.  Yet these white people have not so much to complain of against railroads, as do the Indians of this Territory.  In the states, these companies are so tightly harnessed up in law things that they are made to plumb the track of duty with a good degree of exactness.  But among the Indians, they are “without law.”  What would the people of Arkansas think of a railroad company that should be found lobbying around congress in order to get a right of way through that state without paying for it?  Do you suppose they would allow such a company to live?  Not at all.  They would subject it to tomahawks and brickbats on every street in Fort Smith .  This is bad but what would be the result if the good people of old Arkansas should find out that this same company was lobbying to get twenty acres square, every ten miles along its way, clear across the state, as a free donation?2  If a thing of this kind should be attempted among them, a rebellion would be the result.

            Indians prejudiced against railroads!  What state in the union has done more for them than the Indian Territory ?  What state has over-allowed them to X3 its territory free of charge?  The Indians' prejudice is not against the presence of these internal improvements but their conscious less oppression.

1 The Greenback Party: Organized in 1876, the party fought for the cause of putting more paper money into circulation. Economic decline in 1877 led the party to criticize banking establishments and other establishments that controlled monetary policy in the U.S.   The Greenback Party ran its last campaign in 1884.     Back  

2 Free donation: A reference to a “subsidy” sought by the railroads.   Back 

3 X, that is, cross the territory.    Back

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The Cherokee Advocate

September 28, 1881

THE MEMORY OF PRESIDENT GARFIELD

The long struggle is over would that we could say that life and affection had conquered but a great Nation must bow the head in defeat and sorrow.  General Garfield, the late elected President of the United States, is dead. On the morning of the 19th inst., the hope of saving him had nearly died out in the minds of his physicians though the hearts of friends refused to assent to fatal truth.  At ten o’clock P.M., the worn President was sleeping when a violent pain in the heart awoke him.  The agony called forth expression of anguish.  His immediate medical attendant, Dr. Bliss, was called, came quickly, and found his distinguished patient failing dying unconscious.  At half past ten General Garfield died.  At 2 o’clock, P.M., on the 26th, he was buried at a place he had himself selected for his final resting place.  The places which his manly form know and where he was so well and so honorably known, will know him no more, but the places where he was loved and admired will always know him.  He lives and will continue to live in the hearts of the great people of whom he was and is one of the greatest and most cherished of memory.

            The following proceedings of a meeting held by Cherokees, on the day of his burial, will give some idea of the regard felt for the deceased.  President by a race to whom his greatness of heart had made him well known in one of the remote portions of the country over which he had been called to preside.

            On the 26th day of July, A.D. 1881, at 8 o'clock, P.M., citizens of Illinois District, Cherokee Nation, held a memorial meeting at the Court House on occasion of the funeral of President Garfield at Cleveland , Ohio .  Hon. Stephen Tehee, Judge of the Circuit Court, was called to the Chair.  On motion of Hon. W.P. Ross, a committee was appointed to draft suitable resolutions.

 

Committee:  W. P. Ross, D.W.C. Duncan, Wm. Jackson, Jno. F. Lyons, and S.H. Benge.

 

            The following resolutions were submitted and unanimously adopted:

 

Whereas, James Abram Garfield, President of the United States of America, has been snatched away by the hand of an assassin from his high position of honor and usefulness; and whereas, his honored remains are at this hour, Sept. 26th, 1881, at 2 o'clock, P.M., being lowered into the final resting place in the tomb in the beautiful cemetery of Lake View, Cleveland, Ohio; therefore, we citizens of the Cherokee Nation, Indian Territory, in public meeting assembled, would at this hour join in the common expression of sorrow and regret and adopt the following resolutions:

Resolved 1.  That we abhor the crime that has wrought this foul deed of assassination.

Resolved 2.  That in the life, character, and public career of the distinguished deceased, as statesman and private citizen, we shall ever, as we have in the past, cherish a fond memory of his great goodness of heart, his unbinding devotion to the cause of humanity, his wisdom and counsel, his friendship for our race, as well as his tender loyalty to his own obligations as a husband and a son.

Resolved 3.  That we sympathize with his venerable mother, his widow, Mrs. Lucretia Garfield, and her bereaved family in this, their great affliction, and pray that the consolations of that faith which sustained the deceased husband and father in the hour of his unparalleled suffering may support them in their bereavement.

Resolved 4.  That the Chairman of this meeting be authorized and directed to transmit an authenticated copy of these resolutions to Mrs. Garfield.

 

Signed,

 

 

W.P. Ross,

D.W.C. Duncan ,

Wm. Jackson,                             Committee

Jno. F. Lyons,

S.H. Benge.

 

 

            The Chairman of the meeting, Hon. S. Tehee, laid the purpose of the gathering before his bearers with a few well chosen remarks and invited any one to address the meeting on the subject of the resolutions.

            Colonel W.P. Ross arose and expressed his high admiration for the useful and pure life of the deceased President, whom all nations and people in the civilized world had delighted to honor while living and mourned when gone.  The ruler of one of the prominent countries of the globe had sent a floral wreath to be placed on General Garfield’s tomb and had sent a sincere expression of her sympathy to his bereaved family.  The speaker had occasion to call on General Garfield when he was a member of the House of Representatives and had found him affable and kindly in manner and devoted to his trust as one of the custodians of the honor of the government involved in its obligations to the Red man.  He was a true friend of the Red man as well as all other classes of humanity and it was fitting for the Cherokees to add their humble voice to the universal expression of esteem for the man and sorrow for his death.

            Mr. D.W.C. Duncan followed with a pathetic account of the occasion when General Garfield chose the spot for his grave, where he is now (2 o’clock, the 26th,) being lowered from mortal sight.  The President was a noble friend of all humanity and was a special friend of the Indian race.  It was impossible that any who had ever knew or heard of the illustrious dead should not bow in sincere though submissive grief for the loss to the world of one of its foremost, great-hearted men.

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The Cherokee Advocate

September 28, 1881

Mr. Editor:  The discussion conducted in the ADVOCATE upon, “The best means of protecting our public domain from depredations1,” is one, which should deeply interest every citizen of our Nation.

            The argument so far has developed two ideas, or theories.  The first is, to surrender the rights which we wish to have protected into the hands of the protector; in other words, to abandon our nationality, and become “absorbed” into the great bodypolitic of the United States, and take our chances for the result.  The second is, to amend and enlarge the provisions of the intercourse law.  The former is that type of argument generally used by outsiders—those who have not, but desire to obtain.  The latter is the suggestion of true patriotism, and is pregnant with much common sense; and in the absence of anything better, we would give it our hearty approval.

            But we think there is something still better than all this.  We are a Nation; technically and in fact.  This idea is sustained by the decision of all the Federal courts upon the subject, as well as our treaties.  If we are a Nation, then we are entitled to the attributes of a Nation; and of those, self-government is one of the greatest importance.  The government, too, has guaranteed to us the “right of self-government.”  Such are the terms of our treaties.

            Now what is self-government?  Can a nation be said to have the power of self-government, while there is a large class of offenses being daily committed within her borders—offenses over which she has no jurisdiction, and no power to prevent or punish?   Can she be said to have the power of self-government while there are domiciled within her limits numerous persons, and personalities that are not amenable to her laws?  Certainly not.  We as a Nation, have the right of self-government, but not the power.  This power has been denied us.  What we need to do, and contend for, is to have it, at an early day, accorded to us in pursuance of our treaties.  We would not have the Intercourse Law2 repealed; we reverence it as a palladium of protection; but, after all, it must be admitted that it is not in harmony with the spirit of our treaties with the government.

            Let the Intercourse law be faithfully enforced as it is.  But we need no amendment of it.  The government of the United States should give us the power, as it is our right, to protect our own domain.  In this respect we, as a Nation, should be allowed to stand on the same footing with Arkansas , and other States.  Our Council should enact laws to prohibit the exportation of timber from our forests; and our courts should have the power to punish the non-citizen as well as the citizen, for an infraction of that law.

            Without this right of self-government, we cannot prosper as a people; this Territory now needs more than anything else, is that the bandages of their national infancy be loosened, or thrown away; and that the pathway of national life be opened up before them; they are ready to go forward.  We need and want the power to protect ourselves; and the general government has no valid reasons for discriminating between the Cherokee Nation, and the State of Kansas , in the delegation of this kind of privilege.  Why should the State of New York be any dearer than the Cherokee Nation, to the United States government?  In proportion to their population, the Cherokees furnished more soldiers than the Pennsylvania or Maine .  In the presence of this matchless exhibition of intelligent loyalty, why should the government continue to hold the people of this territory at arm’s length, deal with them distrustfully, stint their power of self-protection, and enforce against them a system of arbitrary rules, which are proper only as against enemies, savages, and traitors.  The United States has not had a war within the last hundred years, in which Cherokee blood has not flowed in defense of the “old flag.”  Such facts as this, it would seem, should be sufficient to assure the government, that should she give us the power to protect ourselves against the depredations of our white neighbors, we would be fair, and consistent enough to use it for its legitimate purpose, and not for the purposes of retaliation, or oppression.

            There is only one thing that can shield us from depredation and encroachment—and that is sovereignty3.  Whether the government will grant us this boon or not, is another question.

1Depredations- A predatory attack; a raid.     Back

2Intercourse Law- The trade and intercourse act of June 30, 1834 (U.S. Stat. 729-735) combined several previous intercourse laws.  The act governed trade with the Indians and removal of intruders as well as prohibited settlement, grazing, hunting, or trapping on their lands.  It also defined “Indian Country.”      Back

3 Sovereignty- Supreme and independent power or authority in government as possessed or claimed by a state or community.     Back

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The Cherokee Advocate

December 23, 1881

“The Cherokees’ Chain of Title”

Mr. Editor:

It may be interesting to some of the readers of the Advocate to take a brief survey of their title to the lands which they occupy.

In the act of union between the Eastern and Western Cherokees; we find these words: “We, the People form ourselves into a body-politic under the title of the Cherokee Nation.” From this it will be noticed that the Cherokee people and the Cherokee Nation are two distinct personalities, the latter being only an artificial creature brought into existence by the creative power of the former for a practical purpose and is liable to be changed, amended or abolished whenever the sovereign will of the people shall so determine.

The United States government granted and guaranteed the lands which we now occupy, not to that artificial, changeable and, I may say, perishable creature called the Cherokee Nation, but to the Cherokee people. In the first article of the treaty of 18331 we find these words: “The United States agree to possess the Cherokees, (not the Cherokee Nation) and guarantee it to them forever, and that guarantee is here by pledged, of seven millions of acres of land, etc.” And in the first article of the treaty of 18462: “The lands now occupied by the Cherokee Nation shall be secure to the whole Cherokee people for their common use and benefit.”  To the same article there is appended the following proviso: “That such lands shall revert to the United States , if the Indians,” (the Cherokee people) “become extinct or abandon the same.”

Now, Mr. Van Buren3, President of the United States , in executing the patent to the lands, ostensibly in pursuance of the foregoing stipulations, made the grant to the Cherokee Nation instead of the Cherokee people. The following are the words of the patent: “In executing the agreements and stipulations contained in the said treaties, the United States have given and grant d unto the Cherokee Nation, etc.” Then follows the proviso, “That the lands hereby granted shall revert to the United States if the said Cherokee Nation becomes extinct, or abandons the same.”

It will be noticed that there is a very grave discrepancy between the terms of the patent and those of the treaties, and this discrepancy becomes fearfully important when considered in reference to the legal possibilities in connection with the grantee. By the terms of the proviso in the treaty, our lands could never revert to the United States as long as there was one Cherokee living who had not abandoned his country. By the proviso in the patent, however, these lands go to the United States as soon  as we cease to exist as a Cherokee Nation, and that may come to pass at any moment. Any legislation that will abolish our nationality will, according to this patent, give our lands at once to the United States , but the United States have already granted her interest to certain railroad companies.

Here, then, we can see plainly the cause which imparts spirit, perseverance and virulence to the attacks made upon our national life by railroad corporations.

But this patent is void, or at least voidable, because it is not in accord with our treaties. It is dangerous too, because if our title to the soil is to be adjusted by it, we are liable to be ousted out of our inheritance at any moment. The Cherokee people should repudiate this patent without delay, and our delegation should be authorized this winter to so notify the government and humbly petition that a new patent be granted running to the Cherokee people in pursuance of our treaty agreements.

1Treaty of 1833:  A treaty with the Western Cherokees, whereby the United States agreed to grant the Cherokees, and to guarantee them forever, seven million acres of land.     Back

2Treaty of 1846: A treaty between the United States and the Cherokees, which states, “That the lands now occupied by the Cherokee Nation shall be secured to the whole Cherokee people for their common use and benefit."  It brought peace and political unity to the Cherokees after almost two decades of confusion and turmoil.  The old settlers of the Treaty party agreed to a general amnesty for all crimes committed by all parties over the preceding seven years they also agreed that all "refugees" in Arkansas would be encouraged to return under full protection of the law and with full rights as citizens of the nation, furthermore, the light horse police companies appointed by council were to be dissolved, and henceforth only civilian law officers were to maintain order. After the removal of the Cherokees from Arkansas territory, conflicts arose between members of the Ridge-Boudinot-Watie party (also called the Treaty Party) and the followers of Chief John Ross, who had opposed the Treaty of New Echota (1835).  A civil war erupted between the two factions.  The treaty of 1846 concluded that the Cherokee would no longer be divided. A moderate peace was held until 1861 when the American Civil War began, and once again the former hostilities resurfaced.     Back

3 Van Buren: Martin Van Buren, eighth president of the United States.    Back

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The Cherokee Advocate

October 6, 1882

Story of the Cherokees.

[In the spring of 1881, I made a temperance trip to the Indian Territory , and while there met Col. D. W. C. Duncan a Cherokee Indian, gifted, handsome, proud of his race, and of whom any race might well be proud.  He was educated at Dartmouth College , and had become an eminent lawyer, he being the attorney for the Indians who secured the verdict against “ Oklahoma ” Payne in that celebrated case of attempted outrage upon the Indian Territory .  Brilliant, successful, loyally devoted to the interests of his race and valiant in the defense of the Indian Territory against unjust encroachments, his acquaintance was indeed a revelation to me of Indian character.  Col. Duncan told me many a-thrilling story of the Red Man’s sorrows, and my heart was deeply stirred as he described the outrages in Georgia by which the United States Government drove his ancestors from the lands they had owned and loved and tilled so long.  As Mrs. Duncan, an accomplished white lady, is one of our most earnest temperance women, I had repeated opportunity of conversation with herself and husband – indeed, was materially aided by them in my work, the Colonel being a fine speaker.  So much was I impressed by the recitals to which I have referred that at my urgent request Col. Duncan wrote the following “Story of the Cherokees,” which is respectfully submitted to my friend, Mrs. Starrett, of The Weekly Magazine – which paper is well known to tilt a free lance for the right.  In expectation of justice to the Indian when we, the people, understand his wrongs, I am glad to take the humble part of medium to the extent of furnishing this touching and noble recital to the reading public.

 

Frances E. Willard.1]

            The seacoast and territory lying within the present limits of the State of South Carolina constituted the ancient home of the Cherokees.  Here they had lived – how long!  Time here had “snowed its centuries upon them.”  They were here, doubtless, before the pyramids were planted or ever the Sphinx had lifted his head above the Libyan sands.  Their nation was venerable when the British Empire was in the cradle of its infancy and the Anglo-Saxon race were clothing themselves in skins and sleeping in the drifted leaves of the forest.

            Here it was that the white race became acquainted with them, and commenced upon that career of encroachment which has, for three hundred years preyed upon their rights, robbed them of their peace, and which at the present time is threatening their extinction.

            The Cherokees early adopted the practice of purchasing immunity against the rapacity of their white neighbors by feeding their cupidity on that kind of food, the want of which most of all tempted them to violence, namely, territory.  The Siberian mother, it is said, will feed her children one by one to the besetting wolves, in order thereby to save the more cherished portion of the household from destruction.  It was on this principle that the Cherokees, from time to time, sold portions of their territory to the whites in the hope of saving by that expedient a small part, at least, of their ancient heritage as a permanent home for themselves and their children.

            By these repeated cessions, they were compelled to withdraw from the coast and retire toward the interior; and at the time to which this narrative relates they occupied a choice district embracing what now constitutes as many as a score of countries on the northern border of the State of Georgia .  The climate was mild and healthful.  Its surface was adorned with the charming scenery of the Cumberland Mountains and Blue Ridge, and watered by the head streams of the Tennessee and the great Chattahoochee .  The white race, with its multitudinous tide of emigration and settlement, had flanked them on the north and on the south, and closing in their rear, had rolled on to the Mississippi, crossed over and built on its western bank the two great States of Missouri and Arkansas.

            As early as 1819, the Cherokees made the question of civilization a subject of deliberation in the Council of the Nation.  “Shall the Cherokees adopt the habit, customs, and institutions of the white race, or shall they continue in the way of their forefathers?”  That was the question.  They determined in favor of civilization.  Accordingly, they organized a civil government founded on the three fundamental ideas: Law, Law understood, and Law executed.  The rights and liberties of the citizens were suitably guaranteed; religion was made free; morality encouraged and education provided for.  With the greatest unanimity and most commendable zeal they addressed themselves to the employments of civilized life, and pleasant homes, mingled with churches and school houses, sprang up and adorned the land.  Their new-born industry assailed the hitherto undisturbed dominion of nature, and the forests were hewn down to make way for fields of waving grain.

            But this external improvement was only a symptom showing forth a far more important melioration which was going on in the minds and hearts of the people themselves.  They had begun to appreciate and enjoy the blessings of home, and to love wife and children with a more refined devotion.  The land which they inhabited was no more their cherished “hunting ground,” but their country which they had learned to love with all the fervor of an enlightened patriotism.  Their increased intelligence enabled them to discern more accurately the distinctions between justice and injustice, while their moral sensibilities, vitalized by the influence of civilization, experienced a new delight in the triumphs of the former, and flamed with an unwonted indignation at the invasion of the latter.  In their estimation the white men were no more, as in ancient times they had been supposed to be “children of the sun,” but were only men, like themselves, capable of evil as well as good.  Their encroachments had come to be looked upon by the Cherokees with peculiar jealousy and detestation, aggravated proportionally to their own advancement in the ideas of human rights.  To be, at this period, driven from their country, endeared by so many improved causes of attachment, and sent to new and untried abodes in the western wilderness far beyond the Mississippi , was a prospect which filled the heart of the Nation with sensation of chilly horror.

            In 1802 the government of the United States had agreed that the beautiful district of Cherokee lands, as soon as the Indian title thereto could be extinguished peaceably, should be attached to and owned by the State of Georgia2 .  This act implanted that virus which afterwards broke forth into virulence and blasted all the fair prospects of Cherokee civilization.  This conditional grant lay dormant for more than twenty years; indeed, it was never to take effect until the Cherokees had amicably consented to part with their title.  It was not until these lands were found to be impregnated with gold that the State of Georgia became impatient to enter into possession of this, her prospective heritage.

            About the year 1828, there lived a man (a Cherokee) near the town of Dahlonega , Ga.   A bright rivulet bubbled along by his garden gate.  Standing one day upon the brink of this little stream, about a stone’s throw from his little cabin door, his eye was attracted by a peculiar particle gleaming beneath the limpid current.  Stooping down, he lifted it upon his finger from the weltering sand, and gold was discovered in the Cherokee country of Georgia .

 

This interesting event soon became a matter of general notoriety among the Cherokees, and mining at once took its place along with agriculture as one of the staple industries of the Nation.  The precious metal was not long in finding its way out into the State in search of market.

            Intelligence of what was going on among the Cherokees, having reached the frontier, its electric shock sent a thrill of excitement well nigh to the utmost limits of the American Union.  It was the signal for a general uprising among the whites.  Thieves, millionaires, paupers, statesmen, cutthroats and moralists – all agreed in the idea that the progress of civilization had already been retarded long enough by the obstructing presence of Cherokee barbarism, and that if truth, righteousness and peace – the general good of many kind – should be allowed to sustain any further damage through a failure on the part of the present generation to go in, possess and redeem this goodly land, posterity, who would be the real sufferers, would hold them to a most painful accountability.  Therefore, business men of every grade and character joined in public meetings of consultation for the purpose of devising schemes to drive out the Cherokees and “open up their country.”  They memorialized Congress; they petitioned the legislature of the State of Georgia , and argued that not only the well-being of humanity but the interests and necessities of American commerce were all in harmony with their projects and demanded their immediate execution.  Politicians and speculators seconded these movements with zeal, for talent and money looked forward to an alliance of their respective fields of usefulness.

(To be continued.)

1 Frances E. Willard: Leader of the Women’s Christian Temperance Union during the nineteenth century, she was one of the most notable figures of her time.     Back

2 State of Georgia :  In 1802, President Thomas Jefferson agreed with the State of Georgia that all Native American Indians should be removed so that the state could lay claim to the land. The agreement was contingent upon Georgia 's cession of its western lands from which Alabama and Mississippi were formed.     Back

 

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The Cherokee Advocate

October 13, 1882

 

Story of the Cherokees

Col. D. W. C. Duncan.

[Continued from last week.]

            [In the spring of 1881 I made a temperance trip to the Indian Territory , and while there met Col. D. W. C. Duncan a Cherokee Indian, gifted, handsome, proud of his race, and of whom any race might well be proud.  He was educated at Dartmouth College , and had become an eminent lawyer, he being the attorney for the Indians who secured the verdict against “ Oklahoma ” Payne in that celebrated case of attempted outrage upon the Indian Territory .  Brilliant, successful, loyally devoted to the interests of his race and valiant in the defense of the Indian Territory against unjust encroachments, his acquaintance was indeed a revelation to me of Indian character.  Col. Duncan told me many a-thrilling story of the Red Man’s sorrows, and my heart was deeply stirred as he described the outrages in Georgia by which the United States Government drove his ancestors from the lands they had owned and loved and tilled so long.  As Mrs. Duncan, an accomplished white lady, is one of our most earnest temperance women, I had repeated opportunity of conversation with herself and husband – indeed, was materially aided by them in my work, the Colonel being a fine speaker.  So much was I impressed by the recitals to which I have referred that at my urgent request Col. Duncan wrote the following “Story of the Cherokees,” which is respectfully submitted to my friend, Mrs. Starrett, of The Weekly Magazine – which paper is well known to tilt a free lance for the right.  In expectation of justice to the Indian when we, the people, understand his wrongs, I am glad to take the humble part of medium to the extent of furnishing this touching and noble recital to the reading public.

Frances E. Willard.1]

            While these things were going on among the more loyal and respectable portion of white people, another large class, calling themselves miners and emigrants, made up of that sort of persons whose efficiency for deviltry is limited only by their opportunity, waited not for the action of the government, but rushed into the Indian country and by force of arms, amid scenes of outrage and assassination, drove out the Cherokees and monopolized the gold region.

            By this time affairs among the Cherokees had become exciting.  Their leading spirits talked gravely of war, and seemed to lament that an age of intelligence had disarmed them of that reckless valor of olden times, and taught them the propriety of calculating the chances of victory before going into battle.  To take up arms against such overwhelming odds was impracticable.  The strength of the Cherokees was in the justice of their cause; their only available weapon of defense was truth; their only hope was anchored in the honor of the white nation.  Accordingly, they appealed to their treaties; they urged the plighted faith and solemn guarantees of the government.  The other side, however, shut their ears against the addresses of reason.  They would not allow their minds to be troubled by the harrowing questions of justice between the two peoples, but relying upon that popular dogma, rife among civilized peoples, namely, that their own elevation in the scale of human excellence entitles them, by the will of God, to dominion over the whole earth, at least as far as they had power to conquer, they laughed at the treaties, scoffed at the obligations imposed by their guarantees, and ridiculed the idea that so poor a party as an Indian tribe should presume to question the conduct of the white race or should be thought competent to insist upon the benefits of a compact with so great and glorious a personality as the government of the United States.

            The State of Georgia2 sympathized with her citizens.  She remembered the promises made to her in 1802 by the general government. True, the event upon which she was to become the owner of the Cherokee lands had not yet come to pass, and she could not yet reasonably insist upon her title.  Nevertheless, she memorialized Congress upon the subject and demanded that the Indian claim to the Territory in question should be extinguished without further delay, and that she be allowed to take possession of the same in pursuance of the compact.  But a difficulty here presented itself which was morally insuperable and which might have been easily anticipated.  The Cherokees refused to sell their country.  The mother had already fed her last child to the wolves, and she had no more to give, whatever the consequences might be.  The President of the United States had sent proposals to them looking to a purchase of their lands, but these overtures only proved an occasion for an address from the Cherokees to the President reminding him of the government’s obligation to protect them in their homes and urging him, in pursuance of their treaties, to remove intruders from their country.

            The predicament was embarrassing.  To push the Indian nations away from their ancient homes on the Atlantic coast to locations in the unsettled regions beyond the Mississippi, was a scheme which the President himself (Gen. Andrew Jackson) had inaugurated, and one which he cherished with peculiar fondness and of which he entertained the greatest expectations; it was his ardent desire to see it succeed.3  But the Cherokees, feeling an attachment to their country too strong to be severed, decidedly regretted the idea of emigration.  To compel them to remove by arbitrary force emanating from the strong hand of the government would have been, in the face of so many guarantees to the country, a violation of good faith too flagrant to escape the criticism of the civilized world.  A more judicious course must be pursued.  The Cherokees could not, according to the terms of their treaties, be compelled to move without their own consent.  To obtain this consent was now the matter to be compassed.  Money could not buy it, but misery could extort it.  What motives they might have for giving it, or what stress might be used for drawing it out of them – these things, it was thought, were not proper matters for scrutiny in the practical affairs of State, and should not be considered in the premises.  If the Cherokees should sell their country and emigrate to a new one by their own consent, that is enough; surely the tender conscience of a Christian civilization could have no cause to complain.

            In this conflict between a sense of honor and the clamor of expediency the President was driven to assume not a neutral, but an equivocal position.  He neither drove the Indians to please the State of Georgia nor did he expel the whites as urged by the Cherokees.  His sympathies, however, were altogether with the whites.  Apparently refusing to take sides in the controversy, he hailed with satisfaction any theory of law, morals or necessity that would tend to absolve the government from its obligations to the Cherokees, and thus free his hands to co-operate with the State.  South Carolina had espoused the doctrine of nullification and trampled on an odious law of Congress.  On that occasion he coerced the State and threatened to hang her leading statesman (John C. Calhoun)4 “as high as Haman,”5 on account of his complicity in the offense, but when in the case of the Cherokees, Georgia overrides a treaty of the United States in which not only the sovereign authority, but the honor of the government is involved, this same President was called on for redress by the parties aggrieved, he replied, “The general government has no authority to interfere with, or coerce, the action of a sovereign State.”

            The Cherokees now found themselves abandoned by the government.  They cried to their “Great Father at Washington ,” but his answers never rose to anything higher or better than hypocritical expressions of parental regard for his “Red children.”

            Georgia well understood this bias of the Administration, and never lost sight of that purpose, the accomplishment of which she knew to be so much in accord with feelings of the executive.  “The Cherokees must go” was her motto; it had been whispered in her ear at the White House.  “The Cherokees must go” was caught up and echoed by the intruders.  “The Cherokees must go” was the war-cry throughout the State.

            Under the pressure of these circumstances the Governor convened the legislature of the State.  An act was hurried through the forms of legislation, having in view the two-fold purpose of driving the Cherokees out of their country and putting Georgia in possession of their lands.  The agencies relied upon for the accomplishment of this work were oppression and persecution.  The statute abolished the Cherokee body politic, annulled all Cherokee laws, and made it a penal offense for any person to enforce or to attempt to enforce, a judgment or process of any Cherokee court.  It extended the laws of Georgia over the Cherokee country and punished all white men with imprisonment who should be found remaining therein without first taking the oath of allegiance to the State Government and to support her measures against the Cherokees.  It also provided for a survey of the Cherokee lands and for dividing them up “by lot” in homesteads to such loyal citizens as might see fit to venture out and make improvements in the wilds of the newly acquired territory.  The act was strikingly characterized by its malevolence against the Cherokees.  By its terms, no Indian was allowed to bear witness against a white man in any of the courts of the State and if any Indian should be detected in digging gold, except in the employ of a loyal citizen of the State, he was liable to be arrested and punished with imprisonment.

            To put this oppressive law into execution, the militia of the State were called out, armed and mounted.  These military companies, so called, were bands of bad men, hastily called together and equipped under the sanction of the State, to be turned loose upon the Indians in order, by means of outrage and persecution, to conquer their attachment to their country and to coerce their consent to emigrate.  They secured the land, marking their way with deeds of violence and rapine.  They soon crowded the jails of the State with Cherokee prisoners, male and female, under charge of violating the “mining law,” and such other accusations as the spirit of unbridled tyranny might see fit to make in order to further its own diabolical purposes.

            The effects of the “allegiance law” harmonized well with the general plan of persecution and oppression.  The worst class of white men – those who were base enough to come into the country for plunder – readily “took the oath” and at once made themselves free commoners in the newly opened field of booty.  The better sort – those who were among the Indians on no worse errand than laudable business, and possessing an ordinary amount of self-respect, and those who had come into the country “for the country’s good” – gospel missionaries – generally refused to obey it.  The former, heeding the dictates of prudence, quietly left the country.  The latter looked upon the law as an outrage and deemed it their duty, as avowed champions of truth and justice, to show their contempt for it even at the peril of their own lives and liberties.

            Dr. Elizar Butler and Rev. S.A. Worcester, who were in the service of the American Board6 among the Cherokees, were the most distinguished of these recusant missionaries.  They were arrested by militia on charge of being found in the Cherokee country contrary to the terms of the statute.  Moral and religious purity which with the lives of these men were adorned only incited the fiendish spirits of the “ Georgia militia” to more aggravated exhibitions of malignity.  The prisoners were pinioned.  For each they prepared a rope.  One end they tied around the prisoner’s neck, the other to the pummel of a saddle.  The ruffians then rode away, while these good men trotted along behind them on the way to jail.  They were tried, found guilty of violating the statute and sentenced to the penitentiary.  They served out their time and were discharged, and returned to the Cherokees in their new home west of the Mississippi , resumed their labors.  They gave their lives to the Cherokees, and their works live after them and bless their memory.

 (To be continued.)

1 Frances E. Willard: Leader of the Women’s Christian Temperance Union during the nineteenth century, she was one of the most notable figures of her time.    Back

2 State of Georgia :  In 1802, President Thomas Jefferson agreed with the State of Georgia that all Native American Indians should be removed so that the state could lay claim to the land. The agreement was contingent upon Georgia 's cession of its western lands from which Alabama and Mississippi were formed.    Back

3 Andrew Jackson (1767-1845) was the seventh president of the United States , from 1829 to 1837.  He signed the Indian Removal Law in 1830, mandating treaties for land exchange with Indian nations.  During his presidency nearly 70 treaties were ratified, and most were for land sales and removal of the eastern tribes. In his first annual message, he recommended a "speedy Indian removal." He spoke against Indians retaining their own form of government and referred to their tribal lands as foreign threats on American soil, even though the Supreme Courts had recognized tribes as "sovereign domestic nations."  Jackson was president from 1829 to 1837.   Back  

4 John C. Calhoun:  Vice-President under John Quincy Adams and Andrew Jackson until 1832, Calhoun then became a Senator for South Carolina . He enunciated an Ordinance of Nullification that challenged federal power and precedence over the states  The underlying issues continued until after the Civil War and were causes of that conflict.    Back

5 Haman: In the Book of Esther, Haman was an enemy of the Jews.  He was hung in effigy as a result.   Back

6 American Board of Commissioners for Foreign Missions:  the ABCFM sent missionaries to the Cherokee Nation from 1819 on, establishing schools and churches.  Some of its missionaries were involved in translating the Bible into Cherokee and later publishing in the Cherokee language using Sequoyah’s syllabary and English.    Back   

 

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The Cherokee Advocate

October 20, 1882

 

Story of the Cherokees

Col. D. W. C. Duncan.

[Continued from last week.]

            [In the spring of 1881 I made a temperance trip to the Indian Territory , and while there met Col. D. W. C. Duncan a Cherokee Indian, gifted, handsome, proud of his race, and of whom any race might well be proud.  He was educated at Dartmouth College , and had become an eminent lawyer, he being the attorney for the Indians who secured the verdict against “ Oklahoma ” Payne in that celebrated case of attempted outrage upon the Indian Territory .  Brilliant, successful, loyally devoted to the interests of his race and valiant in the defense of the Indian Territory against unjust encroachments, his acquaintance was indeed a revelation to me of Indian character.  Col. Duncan told me many a-thrilling story of the Red Man’s sorrows, and my heart was deeply stirred as he described the outrages in Georgia by which the United States Government drove his ancestors from the lands they had owned and loved and tilled so long.  As Mrs. Duncan, an accomplished white lady, is one of our most earnest temperance women, I had repeated opportunity of conversation with herself and husband – indeed, was materially aided by them in my work, the Colonel being a fine speaker.  So much was I impressed by the recitals to which I have referred that at my urgent request Col. Duncan wrote the following “Story of the Cherokees,” which is respectfully submitted to my friend, Mrs. Starrett, of The Weekly Magazine – which paper is well known to tilt a free lance for the right.  In expectation of justice to the Indian when we, the people, understand his wrongs, I am glad to take the humble part of medium to the extent of furnishing this touching and noble recital to the reading public.

Frances E. Willard.1]

            The survey of the Cherokee lands, as provided by the statute, was completed.  The quarter sections were entered upon slips of paper.  These slips of paper were then deposited in a box and thoroughly mixed.  He who desired a homestead in the “beautiful land of the Cherokees” had only to thrust in his hand and draw out a slip; the endorsement on it showed the measure of his luck and explained to him his location.  This performance was called “drawing lots.”2

            These “lots,” as they were called, often fell on valuable improvements belonging to the Cherokees.  Chances of this kind were much coveted and sought after by the homesteaders.  The law made no provision for protecting the rights of the Indian occupants.  The homesteader found nothing in the way to hinder his enjoyment of the most complete license that his evil nature could desire.  Affairs among the Indians were reduced to a hopeless state of anarchy.  Issues between the two races were decided exclusively by brute force.  The stronger force, which was always on the side of the whites, invariably prevailed.  One side having power, in all cases, to execute its own sovereign will, had no occasion to invoke the magistracy.  To the other, being disfranchised, the magistracy was unavailable.  The interposition of judicial authority was neither practicable nor expected by either party.  If a “lot” happened to cover an occupied improvement, the owner was thrown out of possession on private responsibility.  Such personal property as was found upon the premises, especially the implements of husbandry and the mechanical arts, were appropriated by the newcomer.  The poultry was dressed and enjoyed by him, his wife and little ones.  The hogs were re-marked and the cattle re-branded in the name of the white man and went to augment his patrimony.

            In order to illustrate the extreme to which this species of outrage was carried, particular mention need be made only of one instance.  The author vouches for the truth of this incident, for he speaks with all the certainty of knowledge that sonship can give of the events which usually make up the history of the parental household.

           There was a man (a Cherokee) whose premises had been covered by one of these fatal “lots.”  He was a farmer and had about a hundred acres under cultivation.  His improvements were not only commodious, but tasteful.  The house he lived in was built of ponderous pine logs hewn to a smooth face on two opposite sides, laid up and notched down with artistic precision.  It was a double house with a broad airy “entry” between the two apartments, and flanked with a veranda that extended the whole length of the structure.  The yard spread away from the doorsill, carpeted with green sward and adorned with trees and flowers.  A gravel walk linked the entrance gate to the threshold, and around the whole, including the garden, ran a picket fence, of genteel aspect, which on the east joined hands coyly with the rustic timbers of a rail fence that straggled away enclosing the orchard and pasture lands in the distance.  A large gate just back of the barn stood sentry at the entrance of the farm and a broad road, well beaten and dusty, stretched itself along in front of the premises, being the highway by which the wealthy stockmen of Tennessee drove their herds of cattle and hogs down to market at Augusta , Ga.

            The harvest had been reaped and the plow had been at work in the stubble land.  The man had retired from labor one day and was sitting for a moment's rest on the veranda with his wife and children.  The conversation had been confidential and full of the misfortunes that had fallen upon their people and Nation.  The man's face bore upon it the aspect of indignant soberness as the tyrannous conduct of the whites was recounted, and tears of anxiety and dread coursed down his wife's cheeks as she contemplated the prospects of a dreary abode far away beyond the Mississippi .

           The sun had passed the meridian.  The clouds had shorn him somewhat of his noonday splendor, and he was hanging in the western sky like a lurid ball of fire just over the summit of the Alleghenies.

           Two horsemen now came into view far down the highway in the direction of the white settlements.  They were armed with rifles certainly and doubtless with other weapons that are visible only in cases of emergency.  They were white men. Georgia 's “lottery box” had been in operation at Milledgeville3 and these men had “tried their luck.”  It was a good hit for them, for their “lot” covered the man's premises completely.  They were coming to see their newly acquired property.  The first part of the improvement that came under their notice was the pasture in which the man's horses were grazing.  Here they loitered and looked for a time with evident satisfaction.  At length, they moved on.  The orchard next attracted their attention.  Here they estimated the number of fruit trees and tried to take in their quality and variety.  They started, stopped, looked and pointed.  They were now evidently in the presence of scenes with which they were anxious to strike up an acquaintance.  As they sat upon their horses, they seemed, one moment, to be considering the surface of the earth at their feet, as if to acquaint themselves with the nature and quality of the soil.  Then with elevated gaze, they stood feasting their eyes on the distant scenery whose charms were sweetening the landscape.  Ere long they drew up to the garden out of the highway, some distance, and on private ground.  They scrutinized its contents, and to every plant they seemed to say, “How are you?”  Here they took eye glances at the barn, corncrib and dwelling house.  They saw the man sitting with his family on the veranda, but gave him no attention.  They moved along slowly with their rifles across their laps, side by side, talking to each other, peering this way and that; advancing, halting, gesticulating, remarking, regardless of these who gazed upon them from the house.  By and by, they came to the great gate that stood near the barn.  One of them here dismounted, flung the gate open, remounted and they both rode in.  On they went, inspecting, prospecting – slowly onward till at last they were lost from sight in the expanse of the farm.  They were not gone long, however, ere they came again into view, returning.  They arrived at the great gate and passed out still wearing an impenetrable air of inquiry and investigation.

           Here the man who had sat on the veranda met them.  “Gentlemen, what will you have?”

           “Do you live here, sir?”

           “I do.”

           “Well, we must have possession here in ten days.”

          “What do you mean?”

          Here one of the white men drew from his pocket and read a certificate showing that he had won the man's premises at Georgia 's infamous lottery box.  They then rode away in the direction they had come.

          The man's dark eye followed them as they went.  His deep sense of wrong had hung itself in shadows upon his swarthy brow, and in the tones of one whose spirit, oppressed by a power which it cannot repel, finds its last support in hopeless feelings of contempt, he said:

           “The impudence of a white man!  Specimens of a glorious civilization!  Those obdurate villains have the hardihood to say that God has a peculiar liking for them and their race on account of what they know and what they are; that He gives them the whole world for a possession, and commissions them on errands of rapine and murder against us as He did Joshua against the poor Canaanites.  If that be so, it is wonderful how such great meanness can be so popular in heaven, and be entrusted with such fearful prerogatives over the rest of mankind!  Away with such civilization!  Let the curse of the Great Spirit fall upon its arrogant hypocrisy.  They are stronger than we, that is all.  If we had a few more men to do our fighting with, the Cherokees would be in favor at the heavenly court, and God would doubtless give us missions of evangelization against the Nation of scoundrels.  But we are weak; we must submit.  Nations are rarely human when they are not afraid to play the beast.”

           A fortnight passed and two emigrant wagons rolled into view.  They were attended by the same two white men that had a few days before explored the man's premises.  Their wives and their children were with them, also their hired hands.  They came trudging, dusty, dirty, evidently weary.  A long way they had doubtless traveled.  Step by step their teams tugged on, freighted to the bows of their wagons' white arching roofs with all the precious prospects of a new and happy home in the beautiful land of the Cherokees.  On they came, soberly and directly, tending toward the big gate just back of the barn.  They arrived and halted before its majesty.  There was no God in all the Cherokee Nation that commanded the reverence of those impious white men like that gigantic gate.  They swung it wide open upon its ponderous hinges, though, and in they drove.  On they rolled, on, still on.  At length, they stopped just in the edge of the stubble lane, a few rods only from where the man's plow was standing in the furrow.  They at once began to unburden the wagons of their loads; they pitched their tents, rehabilitated their furniture, and began the days of a new life in a new home.  These things done, they hitched their team to the man's plow, and on it moved to the white plowboy's whistle.  In the meantime, the man himself had received a threatening notification that his own well-being was conditioned upon his own gentle behavior, and that in case he should attempt any interference, his right to life and liberty would be deemed forfeited.  Covered from day to day by the white men's rifles and menaced by the carbines of the Georgia militia who desired only pretexts for seizing Indians and carrying them away in irons to jail, the man deemed it prudent to let his conduct be characterized by patient moderation.

            In this extremity, he thought of appealing to the justice of the white Nation.  He brought an action of trespass against those bad white men in the superior courts of the State of Georgia .  Days wore away ere the case came on for hearing.  In the meantime, a system of persecution was inaugurated by the intruders and daily the man and his family felt their sensibilities galled by insulting epithets and brutal maledictions.  Their national pride was outraged by heaping contemptuous ridicule upon their name and race.

           At length, the case came on for trial.  The suit, in moral significance, was simply an appeal to civilization to verify her boasted claims to superior merit over that barbarism which she had affected so much to contemn.  What will she do?  Will she, by displays of her keener sense of justice and the refined equity of her decisions, show the Indians that she is any more deserving of the respect of intelligent beings than barbarism?  This she will have to do if she makes good her conceited boastings.

           The judge was on the bench.  The dignity that clothed him was unexceptionable.  His ermine was white enough, pure enough, holy enough, or seemed to be.  “Surely,” the man thought, “the righteous sit here nearest the throne.  Before this bar, the just may hold up their heads and, though poor, wear the aspect of princes.”  Delusion!  The books were opened.  The parties announced themselves ready for trial.  “Bring on your witnesses, Mr. Plaintiff,” came the injunction from the bench.  “They are here, your honor,” said the man.  “Let them be sworn.”  “Hold!” cried a voice from the defense.  “We object to the competency of those witnesses.”  “What is the ground of your objection?”  “Those witnesses, your honor, are all Cherokee Indians; this defendant is a white man, and the statute of our State provides that no Indian shall be allowed to testify against a white man in any of the courts of the State of Georgia .”  “The objection is well taken,” responded the court, “and must be sustained.”  “Have you no white persons to testify for you, Mr. Plaintiff?”  “None, your honor.”  “Your case, then, must be dismissed at your own cost, and it is so ordered.”

           Civilization stultified herself and indignant barbarism withdrew as from the presence of a leper.  The man went home to tell his wife of his discomfiture.  The white men returned to their camp upon the stubble.  The tents of the intruders became still more cheerful with manifest signs of satisfaction and their conduct was characterized by a spirit of increased assurance.  The Indian's plow continued to follow the white man's team.

            The whites, feeling themselves sustained by the results of the late suit, now usurped the authority of absolute ownership of not only the man's premises, but his personal effects; and they rifled his granary, garden and poultry yard without let or hindrance.  The man and his family were reduced to the condition of tenants in their own house at the precarious sufferance of the white savages.  To enter and eject them, however, was an expedition attended with such peril as few white men would like to encounter.  A different course was pursued.

           The man's wife was a brave good woman.  No pen can do justice to her memory.  She was the mother of two little children; one, a daughter three years of age, the other, a baby son.  She had a little Indian maiden in her service as nurse who was between twelve and thirteen years of age.

 (To be continued.)

1 Frances E. Willard: Leader of the Women’s Christian Temperance Union during the nineteenth century, she was one of the most notable figures of her time.    Back 

2“drawing lots”: Also known as the Georgia Land Lottery of 1832 and sometimes referred to as the Cherokee Land Lottery.  The state of Georgia held a lottery to assign individual parcels of land in the Cherokee Nation to white settlers shortly before the Cherokees removed to Indian Territory.     Back

3 Milledgeville, Georgia:  Capital of Georgia in the 1830s, the town is located just to the south between Atlanta and Augusta.     Back

 

Article Menu

The Cherokee Advocate   The Weekly Magazine.

October 20, 1882

Story of the Cherokees

Col. D. W. C. Duncan.

[Continued from last week.]

            [In the spring of 1881 I made a temperance trip to the Indian Territory , and while there met Col. D. W. C. Duncan a Cherokee Indian, gifted, handsome, proud of his race, and of whom any race might well be proud.  He was educated at Dartmouth College , and had become an eminent lawyer, he being the attorney for the Indians who secured the verdict against “ Oklahoma ” Payne in that celebrated case of attempted outrage upon the Indian Territory .  Brilliant, successful, loyally devoted to the interests of his race and valiant in the defense of the Indian Territory against unjust encroachments, his acquaintance was indeed a revelation to me of Indian character.  Col. Duncan told me many a-thrilling story of the Red Man’s sorrows, and my heart was deeply stirred as he described the outrages in Georgia by which the United States Government drove his ancestors from the lands they had owned and loved and tilled so long.  As Mrs. Duncan, an accomplished white lady, is one of our most earnest temperance women, I had repeated opportunity of conversation with herself and husband – indeed, was materially aided by them in my work, the Colonel being a fine speaker.  So much was I impressed by the recitals to which I have referred that at my urgent request Col. Duncan wrote the following “Story of the Cherokees,” which is respectfully submitted to my friend, Mrs. Starrett, of The Weekly Magazine – which paper is well known to tilt a free lance for the right.  In expectation of justice to the Indian when we, the people, understand his wrongs, I am glad to take the humble part of medium to the extent of furnishing this touching and noble recital to the reading public.

Frances E. Willard.1]

            One day, just as the sun was nearing the summit of the western hills, the man and his wife walked out to make a friendly call upon an Indian neighbor.  It is pleasant, you know, for partners in misfortune to meet at times and mingle their griefs.  The distance is short; the place in sight.  The children were left with the little nurse to await the parents' return.  Twilight was just beginning to sober the hues of the day; a big black cloud lay upon the horizon, muttering a little thunder.  The trip was made, greetings over, and the conversation had been running.  That little group of oppressed Indians had well nigh finished the canvass and equalization of their common load of troubles, when a gigantic flame of fire leaped up through the roof of the man's house in the distance and surging up skyward, rolled off in measureless volumes of smoke.  Frantic consternation seized the hapless parents.  “The children! The children!” exclaimed the man and speed brought him like an arrow to the place of disaster.  The wretched mother followed, less fleet, but was soon by the side of her husband in the presence of the conflagration.  The fire was in the midst of its repast.  It was one of those times when manhood submits to the arbitrament of destiny, and valor achieves its greatest glory in heroic suffering.  The man was helpless, speechless.  “O, my children! My lost, lost babes!” rose from the lips of the mother amid the roarings of the fire and seemed to make all the gray evening sky ache in sympathy with her inconsolable anguish.

           And sure enough, where are the children?  Have they escaped the flames and run away to some place of safety in the garden?  The orchard?  Or concealed in some leafy covert along the fence?  Or have they, crazed with fright, fled to the wild wood to weather this dreadful night all alone, endangered by wild beasts, poisonous serpents, and the rage of that storm which is gathering beyond the mountain?  Or can it be that the darlings, together with their little black-eyed nurse, are all buried in that molten mass that gleams through those wasting doors, and roars up spouting flames through those chamber windows?  Plates and rafters thundering down – Oh God!  The little ones!  Too late!  Too late!  Their dear ashes will forever consecrate the ruins of their house.

            But hold!  Yonder stand the white men, aloof a little way, just within the circuit of the fire’s yellow light.  Ask them.  They may be able to give some account of the missing children.  Ah!  It is useless.  They are heartless wretches.  They are now making merry at the mother's frantic cries.  They are laughing, and doubtless, at the ruin which their own villainy has wrought.  Their nocturnal grinning, gleaming in glare of this fiery heap, look ghastly and picture them as demons holding high carnival in honor of destruction.

            The night was dark.  O how dark!  The moon was off duty; and the stars were blotted out as though with the brush of annihilation.  The admonitory thunder in the distance was speaking frightful of rain, swelling streams and sweeping torrents ere the morning dawned.  A cry was raised.  Loud and shrill it rang till the Indian villages caught the sound and read in its tones the distress of the hour.  Friendly aid came in.  They ransacked the landscape with torch and lantern, and through the deep darkness sent forth calls bearing in their tones an inspiring tenderness, if perchance a disclosing answer might be coaxed from the little trembling fugitives.

            It is vain.  They are burned to death!  Yet they may be still alive.  Let the search go on, and wear the night away in effort, or conquer this horrible suspense more intolerable than death!

            It was a scene for mothers to study – those who deem themselves furtherest removed from the shadows of barbarism – those who are accustomed to awe their little ones to duty by rehearsing to them frightful stories of the Indians’ brutality.  Would they had been there to mark that tragedy; to follow that grief-stricken mother through the long hours of that dreadful night; to drink in her wailings, and to fathom, if possible, the depth of her mental anguish; and having charged up that immeasurable crime to its true author – to that brutal tyranny with which the white race have ground the Indian for the last three hundred years – settle the question whether their own boasted civilization is not a far better nursery of demons than the Indians’ barbarism?

            The cock’s crow announced the approach of day.  Ere long the beams of the morning began to break into and light up the coverts of the landscape.  Lanterns and torches were discharged.  With increased facilities and redoubled diligence, the anxious search went on.  The hours were still heavy with suspense.  “Burned to ashes, or yet alive?” were the painful queries that dwelt in whispers upon every lip and wrung every heart with anxiety.  Inquiry, wistful inquiry, probed the smoking ruins.  But in vain; no traces of the lost among the heaping coals and ponderous brands. 

            The sun had climbed wearily up the sky and was well nigh the zenith, when, at length, a cry arose through the branches of a distant forest. “Found! Found!”  The long-drawn sound freighted with joyous tidings, rolled down the valley and was caught up and borne along by cheery voices, until its music fell upon the ears of the disconsolate parents, and as by the touch of divine goodness, changed their sorrow for the dead into joy over the living.

            The children and their little nurse were found nearly a mile away from the scene of outrage concealed in a leafy jungle, trembling with fear and stupefied with cold.

            Let the heavens witness this spectacle! – These babes were Indian children fleeing for life before the progress of a “glorious (?) civilization.”

            There would have been a cloud of impenetrable mystery forever hanging around this tragic affair had it not been for the testimony of the little Indian nurse.  It is best given in her own limping English.  The mother had entrusted the babe to her keeping and she proved true to her charge.  Meeting the mother, she returned the babe safely to her arms, and with the brightness of excitement still flashing in her deep black eyes, she said hurriedly:

            “You go away; white man come, fetch fire, throw baby out door; hit me; say, ‘Go way – kill you;’ take baby, run way, ‘fraid white man.”

            The ruins of the man's once happy home was sending up laggard columns of smoke in the full face of noonday.  The white men looked on from a distance with composure and pursued their usual career, only now with a pleasing consciousness that they had struck the man a blow which must, in a very short time, relieve them of his annoying presence.  The “ Georgia militia” still hovered in the country, and the continually growing influx of arrogant whites was rapidly dispossessing the Indians of their homes and property.  It was not difficult at this moment to inventory the man's effects.  His hogs, cattle and other livestock had been well nigh, all either maliciously destroyed or driven away and appropriated.  A team he had left with wagon and harness, that very day, he “hitched up,” and putting his wife and little ones aboard, he turned his face toward the Western wilderness, moved off, and surrendered his place to the service of that “glorious civilization before whose effulgence the American Indian, like an abnormal plant beneath the blaze of the meridian sun, naturally pines, withers and dies.”  On he went, crossed the Great Father of Waters, cleared the borders of the wild Arkansas , and stayed not till he reached the Red Man's asylum in the Indian Territory2.

            Years have since rolled away.  He and his heroic wife have long since found rest in death.  The children still live, and that malignant power, falsely called civilization, is to this day still at their heels demanding their room or their ruin. – The Weekly Magazine.

1 Frances E. Willard: Leader of the Women’s Christian Temperance Union during the nineteenth century, she was one of the most notable figures of her time.  Back 

2 Indian Territory:  Land set aside originally for Indians removed from other parts of the country within the borders of present-day Oklahoma.  Back 

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The Cherokee Advocate  

January 26, 1883

The Reaves Letter Again

Editor Cherokee Advocate:

            Gen. Nathan Reaves was here last winter as agent of the government, in reference to certain claims due to some of our citizens, for losses sustained by them during the late war.  He seems to have been less successful in the legitimate business of his mission, than in the collecting of light gossipy material for an Indian article (See N.Y. Herald, Dec., 8th, ult.)  Nothing has been heard from him since he left, as to the number of claims he adjusted, and our Indian soldiers are still unpensioned, our loyal citizens unpaid, and there is nothing to show from his visit to this Territory, ostensibly in the interest of justice and humanity, except a little back-biting cutique upon the manners and customs of the country.

            It is not our intention to answer the General’s article; but simply to make it a subject of remark as it is indeed very remarkable.

            He begins by saying, “We have made twenty-two treaties with the Cherokees, and it is safe to say we have never kept one of them.”  The fact here declared is shocking; yet it seems to have been made without the least twinge of the moral sensibilities.  It is not easy to understand whom he intends to identify by the term “we” in this connection.  Certainly he does not mean to include himself among those who are mean enough to be addicted to the practice of bad faith.  Nevertheless these treaties have all been indeed violated; and “it is safe to say” that whoever has done it, whether divine, human or infernal, has ample occasion for shame and repentance.

But repentance for wrong-doing is not the General’s temper.  With the sins of habitual bad faith upon him, he assumes an air of righteous sovereignty and fulminates advice thus “The way out” (of our Indian troubles) “is to settle the whole policy once and forever, and begin with the Cherokees.”

            If, to get out of the troubles that perplex our Indian relations, it is necessary to inaugurate any new policy, we should like to know what it is to be.  If treaty-breaking has been the policy in the past, what is it to be for the future?  Ninety-nine percent of these troubles are brought about by a disregard of treaty obligation on [unintelligible] of the white nation.  Now [unintelligible] wrong conduct produces misery, the only proper thing to do, is to abandon it; common sense, as well as the Scriptures, point out the most honorable as well as the most effectual policy.  “Cease to do evil; learn to do right.”  Let the government stand by her engagements with the Indians.  This is the only reasonable way out of these troubles, and the only policy that can commend itself to the minds of good people.

            But why “begin with the Cherokees?”  And begin what?  The ulterior meaning of the General’s words here is uncertain.  It is more than possible, however, that in his diction, “settle a policy” means the same as “to settle the hash.”  In that case, we can begin to see very well why he would have the Cherokees disposed of first.  They are an enlightened people.  The can appreciate the value of property, the comforts of peace and home, the dignity of manhood, as well as the beauties of justice and the sting of wrong – just as sensibly as if they were all white men.  They exercise a wholesome watchfulness over their rights; they keep an eagle-eye upon Congress and the movements of great speculators.  Standing first among Indian nations, in case of attempted wrong, they raise the voice of alarm in tones louder and shriller than any other tribe and with the dogged courage of true American freemen, the names always stand higher than any others on the list of remonstrance.

            Now there is nothing on earth so inconvenient and annoying to a wrong-doer as the lusty outcries of the poor wretch whom he has outraged.  Hence, the maxim among cut-throats: “Dead men tell no tales.”  Is it to stop the mouth of complaints, and remove the danger of exposure that the General would have the Cherokees first disposed of?

            “The only light bread,” says he, “to be had in Tahlequah, the Capital, was brought from Muskogee , twenty-seven miles distant.  Cookery beyond fried pork, boiled hominy, and hot biscuit, is an unknown art among the Indians.”

            These statements are too trifling to take issue upon.  Being a sample, however, of the whole article, we quote for another purpose.

            It is a curious fact that Indians, in discussing the issue involved in the great controversy between the white and red races, are wont to contemplate the subject from the elevated standpoint of abstract truth, and to enforce their arguments by appealing to principles which are fundamental in the moral world.  Our white brethren, on the other hand, ignores the conscience, the Decalogue and the gospel, and determines all proprieties by referring to his own arbitrary conventionalisms.  Says the Indian, “you should not do that; because it is wrong; and you should do this, because it is right.”  The white man, “you should not be that because it is not like me, you should be this, because it is me exactly.”  With him civilization is simply the transformation of an Indian into a white man, instead of a true man; and the operation of evangelism has nothing more of moral significance about it than a mere hand to hand grapple for mastery between a pair of doeskin pants and a pair of buckskin-leggings.  If half the effort had been made to keep before the Indians, for their imitation, illustrious exhibitions of national and individual honesty, justice, and truth, that has been expended in the absurd endeavor to revolutionize their innocent social customs, civilization, by this time, would have been an accomplished fact.  The nobleness of the white man’s example, in that case, would have coaxed the Indian to taste a little of his “light bread;” the former would have learned to mix a little of the latter’s nutritious “hominy” with his fra grant Porter House, and both would have been sitting like brothers at a common table, under the white wings of the angel of peace.

            It was a matter of no small surprise and mortification to the Cherokee people that such a man as Gen. Reaves, whom they had credited with an unusual amount of intelligence and culture, should be found taking such groveling views of that great moral question in which are involved so many of their most valuable and dearest interests.

            Du Chaillu1, the naturalist, made a trip of observation, into the interior of Africa ; he found there a race of monster monkeys which had a very ugly practice of catching men and chewing their fingers and toes off in a most cruel manner.  He returned to New York and entertained [unintelligible] upon the habits of these creatures, their method of hibernation and [unintelligible] how they procured it; and the effects of amalgamation with other species of the baboon race, etc.

            That Gen. Reaves should attempt to capitalize the Cherokee people before American audiences in the same way Du Chablu did the monkeys, is an incident in real life which, for cruel absurdity, rivals anything to be found in the wildest fiction.

            Du Chalu’s natural history of these outrageous monkeys has a tendency to make people dread and hate them; and this natural history of the Cherokees by Gen. Reaves, is so grossly false in many particulars, that it is hard to believe otherwise than that it was written solely to accomplish a similar purpose.

            The Indian problem is a moral question; it has nothing to do with the subject of natural history.  The inquiry is not how, or what, the Indians may eat, drink or wear; nor yet what proportion of red, white or black blood may be in their veins; but what are the reciprocal rights, privileges, duties, and obligations that may exist between themselves and the white race.  We believe that the multitudinous readers of the Herald, when they have perused the General’s article, will say, “very well, sir; your story about the ‘hot biscuit, fried pork, and hominy’ is all entertaining enough; but we sent you to the Cherokee Nation in the service of a great principle; tell us something about how you executed your mission there.”

 

Tahlequah, I.T., Jan. 23, ’83.

1 Paul Du Chaillu:  a French naturalist who documented his travels of 1868 to 1870 through Africa .     Back

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The Cherokee Advocate  

March 16, 1883

The Statehood of the Indian Territory

            Editor Cherokee Advocate:  We have seen, so far, that the Indian Territory is not a bastard, but a legitimate offspring of the great American system of government, resembling the states of the Union in respect of the power that created it, the purpose of its creation, as well as the executive energy that fosters and sustains it.

            We have admitted, however, that there exists one respect in which it differs from a state; a state is organized for the purpose of a general and unlimited inhabitancy; the Indian Territory , for a specific, or limited; namely, for the use and occupation of the Indian people.  But upon careful examination, it will be seen that this difference is more apparent than real.  Let us dwell upon this point, for a moment; and, in prosecuting our inquiry, we can not do better than to trace a parallel, in this respect, between the Indian Territory and a recognized state of the Union .  Take for, illustration, the State of Iowa .

            Now, one of the most ancient and best established principles of the common law, is found couched in the following maxim: Cujus est solum, ejus est usque ad coelum (he who owns the soil, owns the heavens above it.)1  Says Mr. Broom2, “Land in its legal signification, has an indefinite extent upwards.”  Again the same author says, “Not only has land in its legal signification, an indefinite extent upwards, but in contemplation of law, it extends also downwards, so that whatever is in direct line between the surface of any land and the centre of the earth, belongs to the owner of the surface.”  From these fundamental principles of the white man’s law, conclusions to be drawn, are abundant, obvious and very instructive.

            The man who goes to the State of Iowa and buys a quarter-section of land, becomes the owner of the solid earth, from the centre to the surface; the soil is his; also the water, whether running, standing, or falling upon it; the superincumbent atmosphere is his, with the winds; and clouds; the sunlight that illuminates it by day, and the darkness that broods upon it by night, belong to him; the celestial space above to an infinite distance, including the fixed stars and constellations – all are his; his exclusively; his either to use, to sell, or to destroy, at the suggestions of his own choice or caprice.  Nor has any human being any right to molest him, or interfere with his dominion over this magnificent piece of property.  You cannot mine beneath him; nor set your foot upon his soil; nor take a drop of his water to quench your thirst; nor breathe his air; nor allow your eyes to drink in a single ray of his sunlight; nor meddle with his clouds; nor occupy, in any way, a single cubic inch of his celestial space; nor even look at his constellations, nor touch with your finger a single star, without his consent and permission; and if you should attempt such a thing contrary to his will, you are a trespasser and are liable to him in damages.  If you should intrude into his lands, the courts of common law would grant him a writ of ejectment to put you out.

            Now the whole of the State of Iowa is in just this predicament.  The whole surface is owned by a few individuals; hence all that vast domain of nature, lying between the centre of the earth and the surface of the state, including a solid section of the globe, and all space above to an infinite distance, is set apart and consecrated to the use of a small number of monopolists who are solemnly authorized by law to hold it against all the rest of the world.

            Such are the doctrines of the white man’s common law.  In order to acquire a more lively appreciation of this system of exclusive ownership in lands, let us take a brief glance at its practical workings.

            You have a friend living in the City of Des Moines .  You determine to pay him a visit; but the land-owners of the state unanimously agree to insist upon their extreme rights against you as an outsider.  You arrive at the boundary line of the state, and there you are at once confronted by a landlord; he forbids your setting foot upon his soil upon pain of being ejected as a trespasser.  Of course your journey is arrested; for you can neither tunnel beneath him; nor sail over him in mid-air; in either case you would be guilty of intrusion.  It would also be useless to turn aside hoping to find an entrance by another way; for what one landlord has done, all could and might do – namely, repel you from their borders.  You would never be able to get to your friend; and your friend would be in quite as bad a fix as yourself; for he might not be allowed, except by the indulgence of his neighbors, to cross their lands to get out to you.

            But it may be said, “Such a state of facts as that set forth in this supposed case, never did, and never will, exist.”  All true enough; but that is due to the practical good sense of the white people; and not to the liberalities of the law under which they live.

            Let us pursue this subject a little further.  The number of inhabitants in the State of Iowa, is something near two million.  The land-owners will not exceed one million.  There are perhaps more than a million of people abiding within the limits of the state, who have no claim whatever upon the resources of material nature.  They have no earth to stand upon, no air to breathe; no water to drink; no light to see with; and in case of death, no dirt to be buried in.  Now, upon what footing do these people live here?  By what tenure do they enjoy their right to remain?

            It is manifest that there can be only two ways by which they can derive their right of domicile.  They must either purchase it, or receive it as a free gift, from those who hold the ownership of the soil; but whether these landlords will give or sell, is a matter of their own option.

            Suppose, now, these landlords should take a notion to rid the state of this vast generation of landless people.  There are two ways by which this might be done and too in accordance with law.  In the first place the landlords might order them to quit their premises; and in order to quit these premises in compliance with the order, they would have to quit the state.  In case of refusal to obey, legal proceedings might be entered to compel their removal.  Again, these land-owners might discontinue all social intercourse with them – refuse to lease to them, or to take them into their employ, or to sell to them, or to give to them, or to feed them on charity, or to allow them any water to drink, or air to breathe; in that case, there would be, (if the law should be allowed to have its course) more than a million of people to start in instantaneous flight from the beautiful State of Iowa as from a land of pestilence and death.  The landlords would be left sole masters of the territory and in absolute control of the civil government.

            It may be said, however, that these landless people are citizens of the state; and so they are technically, as much so as if they held an interest in the soil.  They can vote, and hold office and are allowed to take an equal hand with the land-owners in the management of the government.  But what does this proud privilege of citizenship amount to as an offset against the power of these landlords?  So far from being any protection against, it is enjoyed, at least indirectly, as a free gift from the land-owners themselves.  Before a man can exercise the rights of citizenship in the State of Iowa , he must first have resided therein six months.  But what if these land-owners should refuse to allow him to enter the state at all?  And if he should enter, abide his six months, and be in fact, elected governor; what then if these same landlords should decline to give or sell, to him a few cubic inches of air for breath?  In that case, doubtless he would resign his high office and, leaving this boon of citizenship behind, make, in hot haste, for a land where the atmosphere is common property, and not held “in severalty.”

            It is needless, for our present purpose, to follow this line of reflection any further.  It is manifest that the State of Iowa, (and the same is true of all the other states) is under the present land system of the United States (that is, land in severalty), as strictly devoted to exclusive, or class, inhabitancy, as if such a thing had been specially ordered by statute, or constitutional provision.  Who are the citizens of a state, in the true sense of the term?  Evidently, those who own the soil.  All others are but sojourners, liable to be expelled from the commonwealth just whenever the proprietors of the soil may see fit to unite in a common purpose to drive them out.  In order to become a citizen of a state and have the full benefit of the guarantees of such a franchise, it is necessary to acquire in some way, either by purchase, gift, or inheritance, an interest in the lands of the state.

            Now turning to the Indian Territory , let us bring up the other side of the parallel.  Here we find the land system, in this respect, founded upon precisely the same principle.  Those who have an interest in soil are citizens; those who have not, are not citizens; but they are here in the same relation to the national government, that the landless people of the State of Iowa occupy with reference to the state – paying the land-owners, in one way or another, for the privilege of staying; or they may be here as intruders; and in either case, liable to be removed from the limits of the Territory just when the land-owners may see fit to require their removal.  It is to be noticed, however, that while the land-owners of a state are authorized to protect themselves against intrusion by invoking the principles of the common law, that privilege is wholly denied the land-owners of the Indian Territory .  The right of self-protection in this respect; stops short at the boundary line of the Indian country.  The people here are ruled by the Executive Arm; they know nothing of the advantages of a civilized judicature.  Whether these landless intruders are ejected from their border, and their rights protected against trespass, depends upon the sovereign will of the President; he may act, or not, according to the impulses of his own will.

            Now one of the most popular arguments among those who desire to revolutionize the Indian Territory is this: “It is unreasonable,” they say, that so large a country should be monopolized by a few land proprietors, (in this case about seventy-five thousand Indians) “and that its vast resources should be sealed up against all the rest of mankind.”  But from the view of the subject which we have here taken, it is manifest that, if the Indian Territory is “sealed” against all that portion of mankind that have no interest in the soil, the State of Iowa and every state of the union, is “sealed” in the same way, only more so, and that the argument, if it is good for anything, proves too much, or at least enough to show that every other civilized government in the world is, in this respect, equally abnormal with the Indian Territory.

            The fact that the Indian Territory is set aside by special arrangement for limited, or exclusive, inhabitancy, is nothing at all in conflict with the theory of American government, and detracts nothing from its legitimacy as a political division among the great sisterhood of states and territories.

(To be continued.)

1Cujus est solum ejus est usque ad coelum”:  A Latin maxim which literally means “Whose is the soil, his is also that which is above it.”   Back

2 Herbert Broom:  Bloom published a collection of Latin maxims titled “A Selection of Legal Maxims” in 1856 for the purpose of use by legal professionals.     Back

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The Cherokee Advocate  

March 23, 1883

The Statehood of the Indian Territory

            Editor Cherokee Advocate:  The states of the Union exist in two classes; those that were created according to the forms of law and those that were not created.1  There was a particular day on which each of the former began to be.  The latter, in a legal sense, are original and without the beginning of days. The former owe their existence to an act of Congress, in pursuance of the Constitution.  The latter are, in theory, from eternity and self-existent.

            By the 3rd Section of the 4th Article of the Constitution, the creation of “new states” is provided for and made feasible.  This provision is the foundation upon which must stand, or fall, every state that has come into being since the formation of the Federal Union.  If the Constitution should fail, these “new states” would obviously fall to the ground, just as so many houses having their foundations jerked from under them.

            As to the Thirteen Original states, however, the case is quite different.  They do not stand upon the Constitution.  By them, the Constitution itself was made and, following the example of all other judicious creators, they wisely avoided the folly of intrusting their own existence in the hands of the creature, for keeping.  Hence there is not a word to be found in the Constitution that has the least bearing upon the Statehood, (the right to be) of these Original states; none that could be invoked in vindication, in case their technical being should be brought into question; none that can afford any guarantee of existence in addition to that which they already enjoyed in their own pre-existing sovereignty.  In reference to these states, the Constitution is not an organic act but a perpetual compact by which they indissolubly bound themselves to observe certain regulations, for all time to come, in ordering their intercourse with one another, with the Indian tribes, and with foreign nations.

            What, now, if this Constitution should be annulled?  What would be the effect upon these original states?  Would they fall and be dissolved into the primal elements of human society, as we have seen would be the case with the “new states?”  Certainly not.  Wretchedness and disaster would indeed overtake the Federal Union; but as for these states, they would simply reserve their respective individualities which they enjoyed before the adoption of the Constitution; they would still live and flourish amid the ruins of the Union as independent and mutually foreign sovereignties.

            Attention has now been called to the relative dignity and vitality of the “new” and the “original” states, with the position of each with reference to the Constitution.  Our next care will be to ascertain the status of the Indian tribes under the Constitution, and to assign them a place, as departments of American governments, in the above classification of states.

            The words of the 8th Section of the 1st Article of the Constitution are these: “Congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”  The term “states,” in this connection, has reference, primarily, to the original Thirteen; but their existence is here neither asserted, nor ordained.  That important fact is here, as everywhere else, presented to the apprehension as a grand presumption – as a matter so well understood and generally accepted, that no question or objection could possibly arise in regard to it.  In the same way the Constitution concedes the existence of “foreign nations” and the “Indian tribes,” and nowhere ventures a single word as to whether they shall or shall not be.  The “Indian tribes,” as here contemplated by the Constitution, (that is, touching their existence as political bodies) are placed upon the same footing, not only with the original states, but also with foreign nationalities of the greatest antiquity, dignity, and power.  Their rank in the scale of being is superior to that of the new states; for these derive their right to be from one act of Congress, which is repealable; and this being repealed, they die.  The “Indian tribes,” on the other hand, are anterior to all laws and Constitutions; for their present privilege of surviving as political bodies, they are indebted to legislation, perhaps, only a few thanks for having the goodness to let them alone.

            The idea of Indian nationality, as here advanced, was not original with the Constitution; in according them a place among national sovereignties, it but related what had long before been conceded, and accepted as an unquestioned fact.  Of this general truth many specific illustrations might be drawn from the history of these tribes touching their intercourse with the government.

            During the Revolutionary war, the Cherokees were loyalists and sympathized with the “mother country,” but at the close of that struggle, abandoned by the King, they found it necessary to meet the American conquerors on terms of reconciliation.  At Hopewell , accordingly, “on the Keowee,2 a convention was held between the “Commissioners plenipotentiary of the United States ” and the constituted authorities of the Cherokee Nation, for the purpose of concluding the war and agreeing upon articles of peace; this was in November 1785.  The deep solemnity and imposing formalities of this negotiation were all that could be expected between nations of the first magnitude and power; and the subjects before the convention were such as only independent sovereignties had anything to do with, such as the declaration of war, the restoration of peace, the exchange of prisoners, the cession of territory and the readjustment of boundaries.  The treaty says: “The Commissioners plenipotentiary of the United States in Congress assembled give peace to all the Cherokees – on the following conditions: ‘The Cherokees shall restore all the prisoners, citizens of the United States – to their entire liberty.’”  “The Commissioners etc., shall restore all the prisoners taken from the Indians during the late war to the Cherokees.”  “The hatchet shall be forever buried,” (in English, the Cherokees give peace to the United States) “and the friendship re-established between the United States on the one part, and the Cherokees on the other, shall be universal.”  The boundaries of territory between the contracting parties are then agreed upon; and the sovereignty of the Cherokee Nation is conceded in the following terms: “If any citizen of the United States, or other person not being a Cherokee shall attempt to settle on the lands hereby allotted to the Indians, or, having already settled there, and will not remove from the same within six months after the ratification of this treaty, such person shall forfeit the protection of the United States, and the Indians may punish him, or not, as they please.”

            What stronger evidence of a nation’s sovereignty can there be, than the fact that it has the right and the power to punish the citizens of all other countries as it pleases?  To say that the government did not recognize and concede the Statehood of the Cherokee people in this transaction is, in effect, to charge the United States with dissimulation.

            This was before the adoption of the Federal Constitution.  Seventeen years afterwards, and five years after the Constitution went into effect, the United States entered into another treaty with the Cherokee Nation.  The terms in which the national existence and political sovereignty of the Cherokees are here conceded, are only the more interesting from the fact that, in their expression, they conform to the new style now but recently introduced by the Constitution.  By the 2d Sec. of the 2d Art. the sole power to make treaties, (international of course) is vested in the President, who is to execute this high function “by and with the advice and consent of the Senate.”  Accordingly this treaty, called the treaty of “ Holston ,”3 reflects the meaning of the Constitution upon the subject of Cherokee nationality in a manner too clear and forcible to be misunderstood.  It is entitled, “A treaty of peace and friendship made and concluded between the President of the United States of America on the part and behalf of the States, and the undersigned chiefs and warriors of the Cherokee Nation of Indians, on the part and behalf of said Nation.”  Notice, this is a treaty of “friendship;” not of submission; a measure to place the United States and the Cherokee Nation upon an equal footing; not to submerge the latter in, nor subject it to, the former.  The grand idea of “peace and friendship” that lies at the foundation of these negotiations, is incompatible with the notion that the Cherokees here bargained away their political existence and independence.  Friendship is the bond of equality.  This reasoning is not fallacious for it is of a piece with divine wisdom.  The great Savior, to assure his self-abusing disciples of their own exaltation under the gospel, says to them: “I call you not servants; but friends.4  If we are the political friends of the United States , then we must have a political existence.  Otherwise, as unorganized individuals, we could but be citizens, as subjects, obeying the government from legal constraint, and not from the self-assumed obligations of an agreement.

            Further, these are the words of the 16th Art. of this treaty: “This treaty shall take effect and be obligatory on the contracting parties as soon as the same shall have been ratified by the President of the United States, with the advice and consent of the Senate of the United States.”  It was so ratified and accordingly became obligatory on the contracting parties.  There has been no treaty concluded between Great Britain and the United States since the foundation of the government that more punctiliously conformed to constitutional rules; or more cordially admitted the sovereignty of the latter, than has been done in reference to the Cherokees in the treaties of Hopewell and Holston.

(To be continued.)

1 Two classes of states: Duncan refers to the original thirteen that already existed at the time the Constitution was written and the “new states” or states that were established after the Constitution and formed through law.      Back 

2 Hopewell : A town on the Keowee River in South Carolina.    Back  

3 The Treaty of Holston (named for the Holston River ): A treaty was signed in 1791 promising stable boundaries and peace between the white man and the Cherokees.      Back 

4 Bible: I call you not servants; but friends: John 15:15.     Back

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The Cherokee Advocate  

April 27, 1883

Justice to the Indians

Daniel Graham, a Santee Sioux Indian, made an application last August to enter a quarter section of land in Nebraska and take out a patent therefore.  The application [unintelligible] freed by the Commissioner [unintelligible] Land Office.  Daniel [unintelligible] was a test case on which important claims rested.  The facts are briefly as follows:

            In 1869 a portion of the Santee Sioux withdrew from their tribe for the purpose of taking up farms under the Patent Act1.  These men were among those who had sold the large body of land which now forms the best part of Minnesota for six cents an acre; they had also been forced to sell a strip of land on the Minnesota River for a sum which would have brought in about 81,000 to each family.  Neither of these sums had been paid to them.  The treaty of 1868 offered to insure to each Santee Sioux who should adopt civilized modes of life, and who should prove his ability to farm land, a patent for his land, such as would be granted to any white settler, on application.  The Sioux, however, who accepted this offer and resolved to lead a civilized life, was required on oath to resign all claims on the Government for the money due to him.  In other words, as Dr. Williamson2 stated the case, “These men purchase citizenship at a very great price.  These natives of the country are required to buy at a cost of several thousands of dollars that which is given without money or price to every immigrant from Asia, Europe or Africa .”

            The Santee Sioux so eagerly desired civilization that they resolved to make this sacrifice.  The resigned their claims, opened farms in an unbroken wilderness with neither money, horses, nor ploughs, breaking the ground with their hoes.  “They stood as a defense for five years between the whites and the wild Sioux,” says the missionary; “it is owing to them that not a drop of white blood was shed.”  This was 1869.  For fourteen years they have persevered.  They have proved themselves skillful and successful farmers.  They have built comfortable houses, schools and churches and live happily and peacefully together.  They have made themselves what it is the professed aim of the Government to make every Indian, self-supporting producers, civilized Christians.  Yet the patents which were solemnly promised to them as soon as their ground was under cultivation, and for which they paid so enormous a price, have been refused to them until the present time.  Every one of these men has worked his ground during these fifteen years knowing that he could be driven out without a day’s warning at the whim of the agent or an official at Washington .

            This is the patent for which Daniel Graham applied and which was twice refused.  Graham appealed to the Secretary Teller.  The Secretary has reversed the decision of the Commissioner of the Land Office and ordered Graham’s patent to be issued.  Every Sioux who has cultivated his ground under the conditions of the treaty of 1869 is by this decision entitled to a patent for it.  It is pleasant to record such an act of justice, however tardy.  N.Y. Tribune.

1 Patent Act: The first federal Patent Act was passed in 1869.      Back

2 Dr. Williamson: John P. Williamson was the missionary to the Santee Sioux and established the Flandreau Special Agency.    Back

 

 

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Cherokee Advocate

April 27, 1883

What is the Matter

            Mr. Editor:  I read Mr. Weaver’s1 article in your last issue in answer to your very pertinent question, “What is the matter;” and I thought it a most admirable production; indeed, an apple or two of gold in a picture of silver, that is the way it struck me.  But turning to your local column, I found that you had [unintelligible] it, though worthy of attention, nevertheless a failure as an answer to your question.  This beat me.  I have read it and reread it to find, if possible, how it has failed to give the correct answer.  It is certainly striking and in the right direction; and if there is no riddle involved in the question, if it is nothing more nor less than a candid inquiry after the reason why our Seminaries are not just as good and successful as any other schools of a like character anywhere else in the world, thus I am unable to see, how Mr. W’s answer falls short in any respect unless it be in the fact that it is a little less radical than it might have been.  His mattock did not touch the taproot of the evil, perhaps.

            Let us look into this matter a little; let us do it candidly.  There is nothing in the world truer than the old adage, “Too many cooks spoil the broth.”  Each business in connection with the school should have only one party, or officer, to attend to it; and if there are no more than one to be engaged in it, this principle should still be preserved.  One should be the chief executive, and all the rest should be required to act under and obey his directions.  Now by examining the condition of our schools, we shall find that this principle is universally disregarded.  It is the multiplicity of cooks that is continually soiling the broth.  Now to illustrate this truth let us take an example of the most primary nature; the selection of the principal teacher for instance.

            The law devolves this [unintelligible] upon the Board; and nearly everybody believes that the Board does it.  But this is true only in theory; theory, however, is not what tells upon the life of the school; it is practice.  Theoretically the Board selects the principal; practically they have far less to do with this vitally important service than a hundred other agencies that are altogether irresponsible.  Look at the subject a little more closely.  The Board has the first say at the matter.  They put a man in as principal.  The pupils receive him, as it were, on probation.  They look him over.  They keep him for a few days, and try him, to see whether they like him, or not.  Now we all know that the likes and dislikes of the human mind are very capricious, unstable things, especially in the case of young people and children; they are certainly very unreliable conditions upon which to rest the continuance of a teacher in position.  It is a very desirable thing that the pupils should be pleased, but suppose their pleasure demanded terms, (which is often the case) which duty forbade the teacher to comply with; there is an issue sprung at once between the pupils and the teacher.  Word goes out that the former is dissatisfied and that they will leave school unless the Board removes from them a teacher that has become distasteful and has failed to meet with their approval.  The result is the teacher has to go; and after he has gone – after the curtain has fallen upon the drama – the history of the term may be summed up as follows:  The Board spent the whole season in trying to establish a teacher in the school, but the pupils, and perhaps a multitude of others, being invested with a kind of veto power, refused to be pleased with their choice and thwarted their action.

            We have now talked at some length; but not so much to set forth a fact as to illustrate a principle – a principle a disregard of which in my opinion, has wrought all the important evils that have afflicted our schools from the beginning of the their existence and must, of course, continue to do so until, in this regard, a reformation is effected.  One cook to a single broth; never any more.  That is the whole lesson in a nutshell.

            Or the orthodox doctrine of our school economy might be formulated thus:

1.  The power of the School Board in the administration of the school should be supreme over all its departments; and there should be no appeal from their decisions.  The Board should be answerable to the people alone.

2.  The Principal should be supreme within the school; the culinary, domestic, and academic departments should be guided by his authority; and the Board should look to him for the prosperity of the school and hold him responsible for its failures.

            In every species of human government, school, state, or what not, there must of necessity be a gradation of functions and functionaries; it cannot be otherwise.  The superior must control and direct the inferior and the superior must defer to and obey the superior otherwise the storms of rebellion and revolution will reign unceasingly.

            In giving my views of this subject it will be noticed that I have not descended to detail further than simply to illustrate a general principle; I have not thought it necessary to do so.  Nor have I criticized any person or thing in connection with the school; because that would have been out of place, and uncalled for.  Indeed, I have nothing but compliments to bestow upon our schools as establishments.  They have as fine and promising a band of pupils as ever a school in the wide world was blessed with.  The teachers are all right and are worthy of far better opportunities than they are allowed to enjoy.  The operatives, too, are all right or as nearly so as could be expected.  The difficulty does not lie here but in the government.  Give these schools a wise and consistent government and, my word for it, with just the material that is now in them, they will move off like the spinning of a top.

1 Frank Weaver: Weaver joined the family publishing business in Fort Smith , Arkansas , where he was editor of the Western Independent during the later part of the nineteenth century and into the twentieth.    Back

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Cherokee Advocate

January 21, 1888

A Novelty in Cherokee Literature

            It is perhaps not generally known that the Cherokee language is composed of only eighteen elementary sounds and may be written perfectly by the use of the following alphabet: a, a, e, o, u, u, d, g, h, k, l, m, n, q, s, t, w, y.  The first six letters are pure vowels and have sounds represented as follows: a, as a in father, a, as a in hate, e, as e in mete, o, as o in nor, u, as u in rude, u, as u in fun.

            The others which are sub-vocals have the same power in Cherokee as in English.  To illustrate:

The Lord's Prayer.

            Ogedoda galalade hahe, galuquodeyu gasasde datsadoue.  Tsaguweyuhe gasu wegananugoe.  Anealohe wenegalesda hadanudasgue, nasgeya galulade tsenegalesdeha.   Neddaodaquesu ogalesdayude sgeuse gohe ega.  Degasgeusequono dasgedugue, nasqeya tsedegayotsenaho tsotseduge.  Ala tlasde udagoleyadeye gasu wedesgeyatenustanuge, sgeyudalasgasdequosgene uyo gasue.  Tsatsalegayayaho tsaguweyuhe gasue, ala tsalenegedeye gasue, ala atsaluquodeyu gasue negohelue.  Amen.

            The advantages to be derived from this method of printing the Cherokee are many and important:

1.  It destroys the monopoly of Cherokee journalism and gives every press in the land a fair chance to compete for patronage among Cherokee readers.

2.  It invests the various English presses of our nation with new and enlarged possibilities as sources of information for the native mind.

3.  It affords a valuable safeguard against popular delusion and error by making it possible to present to the native mind more sides than one upon all public questions.

4.  It suggests to the native mind a utility in English letters and presents to it a motive (a thing it never had before) for seeking instruction in our public schools.

5.  It gives the various churches an opportunity to present their peculiar views of the gospel to the native reader without extraordinary expense.

6.  In a word, it breaks down the wall of partition and brings our nation at least one degree nearer to the great outside world of throbbing civilized life and thought.

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Cherokee Advocate

July 11, 1894

Old Settler Money.

Who Are Entitled to it and How it is to be Paid Out Discussed.

            Editor Advocate: There seems to have arisen some conflict of opinion as to the principle upon which the Old Settlers’ per capita should be distributed.  With a long list of precedents before us touching, this question, especially that of the Old Settler payment in 1852, there certainly seems to be no good reason for any difficulty about it at this late day.  To be right we have only to follow the example set for us in the former distribution.  And in doing this, we shall be in accord, not only with the plain terms of treaty, but also with the ruling of the United States Supreme Court.  The court says in the Old Settler case:

            “The 5th article of the treaty (of 1846) provided that the per capita allowance to be given to the Western Cherokees should be held in trust by the United States and paid out to each individual belonging to the party, or head of family, or his legal representative, and “be paid directly to the person entitled to it, or to his heirs, or legal representatives” and that the persons entitled to it should be ascertained by a committee of five appointed by the president of the United States from the Western Cherokees and an agent of the United States.  The court, (court claims), was of opinion that the rule thus prescribed should be followed as to this balance of the amount intended for per capita distribution, and it was in accordance with this view that the decree was finally entered.”

            “We approve of this distribution of the matter as just and appropriate under the circumstances and a competent exercise of judicial power.  The court decides and pronounces the decree to be carried into effect as between the persons and parties who have brought the case before it for decision, and none the less because it leaves the mere matter of distribution to be conducted in the manner and through the agencies pointed out in the treaty.”

            It will be noticed, now, that both the trial court and the court of appeals leave the matter of distribution “to be conducted in the manner and through the agencies pointed out in the treaty.”

            Now under the terms of the treaty there may arise three pertinent questions: (1) Who are entitled? (2) How are they entitled: directly upon an equal distribution, or indirectly as by inheritance from one who is entitled upon on equal distribution? (3) How is the payment to be made?

            The first question is settled by the treaty.  It says this money shall be “paid out to each individual belonging to the party.”  It therefore makes the individual members of the party so many payees; each member of the party, old or young, minor or adult, parent or child, male or female, is therefore entitled.  But what effect upon this view have the words, “or head of family, or legal representatives?”  Simply this: that the head of a family or parent shall have the right to draw the distributive share of his minor children; a right which he can exercise or not at his own discretion; and in case he should be dead, then his executor or administrator shall have the right to draw the money due to him and his minor children.  There is no one entitled until he has been enrolled by the committee, and thus decided to be an actual payee.  And if he should die after enrollment and before payment, his legal representative has the right to draw for him, the deceased, and his minor children.  This, it seems to us, settles the question as to who are entitled to the money.

            But how are they entitled?  This is our second question and it is fully settled by our answer to the first.  The treaty, in making each person belonging to the tribe a rightful payee, without defining in what particular capacity he shall take, leaves him to be an original and equal distributee.  Besides, all precedents in reference to per capita payments among the Cherokee people are in support of this view.

            Finally how is the payment to be made?  Now the treaty, as quoted above by the Supreme Court, provides in this connection in reference to the duty of the government to pay this money “directly to the person entitled, or to his heirs, or legal representative.”  Let it be noticed that these words have no bearing upon the question as to who is entitled or in what right he shall take.

            It follows therefore, as a logical conclusion, that all Cherokees who have emigrated in good faith to this country prior to the treaty of 1835, and their descendants, are entitled to participate in the distribution; and that too upon an equal footing as original claimants.

            But the Secretary of the Interior1 instructs the Old Settler’s Committee using the following words: “This list should be prepared in the following manner, so as to give the name of each original beneficiary, if alive, and if deceased, then the name, or names of his heirs, or legal representatives.”

            In view of the conclusion at which we have arrived, and which we believe to be correct, it is difficult for us to understand what the Secretary means by “original beneficiary.”  Such a thing as an original beneficiary has never before been heard of; it is certainly without a place in the meaning of the treaty, and has no recognition in the decision of the Supreme Court.  What then does the Secretary mean?  Is it his intention, in distributing the fund in question, to classify the Old Settlers, and pay each member of the party according to the class into which he may happen to fall?  If so, how is he going to draw the distinction?  Who are to be the original beneficiaries?  Will it be those who were enrolled and actually immigrated to this country prior to the treaty of 1835?  That distinction was ignored (and rightly we think) in the payment of 1852.  Many were then enrolled and paid, did not emigrate, but were born here.  Are these original beneficiaries to be those who were on these rolls of 1852?  If those who were born here in this country prior to the making of the pay rolls, are to be original beneficiaries, and to be paid accordingly, then what sense, or justice, is there in debarring from a like classification with its advantages, or disadvantages, those who have been born in this country since the making of those rolls?

            The distinction of claimants as drawn by the instructions of the Honorable Secretary, is utterly without foundation; and it is to be hoped that he may, in due time see fit, in the furtherance of an equitably and happy distribution of the fund in question, so modify his orders as to give each “person belonging to the party” an equal distributive share; for any other plan of distribution would not only be in discord with the terms of the treaty, but dissatisfactory to the great majority of the claimants.

 

1 Secretary of the Interior: Micheal Hoke Smith was the Secretary of the Interior from 1893-1896.    Back

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Indian Chieftain

September 19, 1895

"Too-Qua-Stee" On Monopoly

Some Pathetic Pictures Faithfully Drawn

Tahlequah Arrow

            It was my fortune recently to travel, somewhat extensively through the districts of Cooweescoowee and Delaware1.  It is in these sections of the nation that monopoly is "getting in" its very best work.  The prairies are broad and beautiful.  The soil is exceedingly fertile; a perfect heaven for the genius of agriculture.  The bounteous rains this season have clothed these extensive plains of rich soil with miles and miles of tall, heavy, waving grass and other natural herbage of luxuriant growth and this great crop of spontaneous wealth is all belonging to the Cherokee people, each man, woman and child being entitled to an equal interest; but it is all absolutely locked up in the clutches of monopoly.  It is divided and quartered by wire fences into vast tracts; some greater, some smaller; just according to the greed, the financial ability and physical energy of the few who happened to get the first grab.  It is a grand spectacle of land-in-severalty under the shape of land-in-common.  Many of those vast enclosures are operated merely for the natural grass that is growing within them; and generally in collusion with moneyed white men from the states who are in the habit of buying, so to say, the standing grass from the Cherokee claim-owner, by paying him, so to speak, so much per acre.  In this iniquitous way these vast, golden prairies of Indian lands have been made musical all this summer with the busy click of outside mowers while the stentorian snort and defiant scream of the white man's hay-press having been hurling derision into the face of our national authorities.  These voracious engines have been specially active all this summer.  They have gormandized with the St. Louis market and foreign pockets, countless thousands of tons of our nutritious grass-a magnificent resource which, instead of going to feed the insatiable man of monopoly, should have been for the foddering of the poor Indian cow as a step toward "bread and butter" for his supperless children.

            It is noticeable that the behavior of monopoly becomes more and more rampant and outrageous the further you go out toward the western part of the nation into the region of cow-men and cattle kings.  Here the wire fences are actually too long, and their enclosures so extensive, for any accurate estimation; it must suffice to simply say that they are princely in dimensions, any one of them being more than ample enough for an ordinary English dukedom.  The entire country is either actually, or technically, covered by these stupendous wire improvements.  There is no spot left for an additional settler; while at the same time the actual number of rightful inhabitants of all that great country, would be scarcely enough to populate one of the smallest townships in western Arkansas .  Indeed, there seems to be among these fellows out there a hostility to immigration, lest the incoming of new settlers should result in a division of their "good thing," and a proportional reduction in their proud enjoyment.

            Not a great while ago, a man, a Cherokee Indian he was and a good honest citizen too, concluded to leave the flint hills east of Grand River and remove his home to a more auspicious place beyond the Verdigris .  He selected a spot and laid the foundation for his prospective cabin, and then returned to bring out his family and effects.  The location of this innocent claim however was deemed to be a menace to the ambitious greed of a neighboring monopolist.  Accordingly this good man found, upon his return, that during the short period of a few days' absence his little improvement had been completely encompassed by a wire fence of many miles in extent, cutting him off (under the silly provisions of our land laws,) completely from all enjoyment of the soil except what happened to lie within one quarter of a mile of his hearthstone.  It is needless to say what course this good man chose, under the circumstance, to pursue.  He saw that this monopolist "had the law on him;" that the courts of the country would never allow him to intrude upon this land shark; and the offence would be committed too by his only setting his plow in the ground, or cutting a tree, or lifting a load of stone from the ground, more than one quarter of a mile distant from his doorsill.  The limit was too narrow for him; he was a victim of law, money and greed.  He took up his wife an little ones and went on toward the sunset.

            Now the hateful features of this piece of sharp practice are by no means the more graceful for its being at the hands of one of those men who, though a so-called citizen, have no right whatever to the soil, either by purchase, inheritance or otherwise.

            My attention was also called to another case which was full as [unintelligible] as this one and much more pathetic.  I cannot well forbear mentioning it, because it is so richly deserving of universal censure.

            By the roadside in one of the Verdigris prairies, stands a small weather-beaten house; it looks but little better than a primitive wigwam.  A widow woman lives in it, and whether there are any other inmates besides herself I never learned.  But these are the facts, in brief, which compose the history of  that forlorn little homestead:

            This woman and her husband went out there some years ago, before the demon of monopoly had grown so great as he now is, and settled upon the same spot where this house now stands.  This same season that he found this little prairie home, he fenced, plowed and planted a small field with the expectation of enlarging it from time to time as his ability might warrant.  A vast prairie swept away from the door sill of his cabin and rolled away to the south and east spreading out to the view [of] a princely expanse of flowing valleys and grassy slopes of fertile soil, until, for miles in the distance, this ocean scroll of verdure was abruptly terminated and handsomely bordered by the timbered lands which mark the winding course of the Verdigris.  But the man never lived to realize the dream of prosperity and happiness; he died suddenly and untimely, leaving the widow and her children the sole occupants of the improvement.  For some years this woman tilled the little field which had been left her by her dead husband and in this way realized the family bread; while a few cows, grazing at large upon the spontaneous fatness of the prairie, constituted an additional resource which completed the sum-total of her humble living.  But there was an evil hour in store for her.  One of these conscienceless wire fence men came along one day; he threw his abominable wire around this great prairie, entirely taking in the widow, her cows and her little field, cutting the little homestead entirely off from the outside world.  He then claimed all this land as his own, up to within a few rods of the cabin door.  The widow's cow was forbidden to graze; and more herself was debarred from all reasonable egress to the outside forest, her only source of fuel.  Hemmed in by this gigantic expanse of monopoly, even the little improvement itself has been made worthless and of no value to anybody but this monopolist himself.  He has put himself in a position in which he is able to dictate to the widow upon what terms she must sell, and upon what terms he will buy.

            But I have neither time nor space to paint the whole picture.  It is enough to say that this little piece of practical deviltry is chargeable to one of those chaps whose right to be in the country is seriously questioned for the want of the proper kind of blood in his veins, but who has wormed his way in through the facile gateway of our old citizenship court, of melancholy memory.  And yet so miserably defective and inadequate is our Cherokee jurisprudence that in all this reprehensible transaction there is nothing that can be said to be illegal-nothing that our Cherokee courts of judicature, speaking within the terms of the law as interpreted by themselves, can criticize, except by way of endorsement and entire approbation.

 

1 Cooweescoowee and Delaware districts:  Districts located in the northwestern part of the Cherokee Nation. The Delaware district adjoined the Cooweescoowee district on the east.   Back

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Indian Chieftain

September 3, 1896

Not Adopted Citizens:

Intermarried Whites Not Adopted in the Meaning of the Constitution

D. W. C. Duncan

            Editor Chieftain:--In my article published in your paper last week, I took only a hasty and superficial view of Mr. Jackson's1 theory of what he would seem to call "Cherokee communism," in this, it is my purpose to look into the subject a little more closely.

            And here let me warn the reader, once [and] for all, against the folly of undue sensitiveness; for when I use the phrase "white man," (and I shall have to use it frequently), I do so without the least motives of disrespect or unfriendliness; the term has come, by common use, to signify in law a class of human rights and interests, and on this account alone, it is, that I use it at all.

            In the first place, as to the origin of the idea: Mr. Jackson gives us to understand that he got it from the language used in one or more of the late decisions of the United States supreme court, viz: the North Carolina Indian case, and perhaps the Shawnee, Delaware and freedman cases.2  And this may be all true enough; for as a result of those perilous adjudications, the Cherokees certainly have good reason to thank their stars that they were not made out to be something even worse than "communists."

            But we hope to have some time in the future an opportunity to remark more at length on the reasoning upon which these decisions are founded; at present we are concerned only with the use which Mr. Jackson is trying to make of them.

            Let us now, for argument's sake, concede all that he claims in reference to the legal effect of these decisions; that they have actually abolished our Cherokee civil policy, and transformed our constitutional government into a base "communism"; and let us also concede that they have had that other outrageous effect, namely to extinguish in the Indians themselves all right and title to the public lands and funds of the nation, and have vested the absolute ownership in the "community"; what then?  Does this arrangement at all facilitate Mr. Jackson's scheme for getting hold of a portion of the Indians' property?  Their title to their lands is now no more a fee simple, not withstanding a long line of supreme court decisions to the contrary; it is no more an "inheritance;" for then the white man's chance for succeeding to a piece of it would be quite out of the question.  In that case the white man would be out of the problem; entirely out.

            But we have now allowed Mr. Jackson to have his own way about it; we have allowed him to wipe our ancient body politic entirely out of existence, and it is now just as though it had never been; and we have also allowed him to transform the nature of our land holding from a fee simple into something we know not what; perhaps he does--into something which he would seem to describe as a community title; and the Cherokee people are no more to be conceived of as a nation, but as of a colony of ants lying together in the same hill merely at the suggestions of a blind instinct instead of an identity of national interest like a lawless, yet harmonious, swarm of bees dwelling together in the same gum and feasting upon the same store with no other measure of shares than the individual appetite.

            Such is the picture, such is the status in national life to which Mr. Jackson has reduced us, in order to promote his claim to a portion of the Indians' estate; and be it so, for the present.

            But is Mr. Jackson unmindful of the fact that even spontaneous "communities" have their laws and regulations by which they admit new members?  Let us learn something from the ants and bees.  Should a stranger attempt to enter one of these sweet little homes of industry without the consent of the constituted authorities--what is the result?  Why, he is arrested by a competent police force; he is led to the portals and bidden depart; and this is putting it very mildly.

            Now this Cherokee "commune," as Mr. Jackson would call it, has also its established rules for the admission of new members.  Let us contemplate them somewhat particularly for a moment.  This Cherokee "commune" has been much more liberal in practice than ants and bees.  They have allowed these strangers to enter their community without the least remonstrance, and, as remarked in our former article, to build homes, to marry Indian women, to pursue business, to grow rich, and enjoy the protection of our Indian laws.  But how was this?  How did it all come about?  There is no law in all Cherokee jurisprudence granting these choice privileges to these white men;  It has all been absolutely a matter of sufferance on part of the Indians--a matter of grace.  White men vote at our public elections, and also hold national office; but upon what principle?  Where is the law authorizing such things?  There is none; it is all simply a matter of favor on part of the Indians, and not of right on part of the white men.  There is no Cherokee law in existence conferring any rights, civil, political or personal, upon white men.  The whole drift of Cherokee legislation, as far as it concerns white men distinctively, has been to check and stand against their tendency to usurp and exercise the franchises of native Indians.

            The ceremony of marriage is claimed to be the modus operandi by which these white men transform themselves into Indians, or something else possessed of all Indian rights and privileges.  But this is a perversion of the statute which prescribes and authorizes that ceremony.  The set relating to intermarriage with white men is not a naturalization law, but simply to secure the regularity, and to preserve the sanctity of the conjugal relation, and at the same time to devise a guarantee, if possible, for the white man's compliance with the laws during his sojourn in the country.  The preamble to that act sets out in these words; "Whereas the peace and prosperity of the Cherokee people require that, in the enforcement of the laws, jurisdiction should be exercised over all persons whatever who may, from time to time, be privileged to reside within the territorial limits of this nation, therefore every white man desiring to marry a Cherokee woman, citizen of the nation, shall be required to obtain a license for the same from the district clerk and be also required to take the following oath: "I do solemnly swear that I will honor, defend, and submit to the constitution and laws of the Cherokee nation, etc."  I omit verbiage and those portions of the act that do not pertain to the thought now before us.

            Now no one can fail to notice that the words "adopt,"  "adoption,"  "naturalization"  and the like are nowhere met with in the statute; yet, ask a white man the question, "Are you  a citizen?" and he will be likely to answer you, "Yes; I am an adopted citizen; my wife is a Cherokee woman."  But it is noticeable that the word "reside" is used very emphatically in the statute.  The law was enacted in reference to those white men who were simply to reside in the country; not to own it, or to rule it. 

            So much for citizenization by intermarriage.  That it has never been the intention of the Cherokee government that white men should have and enjoy the absolute rights of Cherokee citizenship may be gathered from quite another source.  Some years ago, since the late war, there sprung up in the minds of the Cherokee people a charry kind of willingness to accord to white men the full benefits of Cherokee citizenship; accordingly an act was passed conferring this boon in consideration of a certain sum of money.  Two or three white men who had Indian wives, promptly availed themselves of the opportunity; they paid the cash and got their charter of citizenship.  But it soon became manifest that the step was an unwise one; it was, in effect, simply unhorsing the Indian and allowing the white man to take the saddle.  The act was promptly repealed.  The men, (and there were a few), who became citizens under this law, and other special acts, are now the only white citizens of the Cherokee nation known to the Cherokee laws; the only white members known to Mr. Jackson's Cherokee "community."

            In giving this little brief piece of history as touching the white man's citizenship in this country, I do not feel called upon to mention names; they are all well known.  Nor am I able to refer the reader exactly to the statute in question; but I am sure he can find it by carefully examining the old dusty archives of the executive office at Tahlequah.

            I shall close this article with just a few remarks in reference to our national constitution as bearing upon the question of the white man's citizenship.  Let us not mistake the office of a constitution.  A constitution is not a statute, a legislative act.  Its office is not to legislate, but simply to prescribe what legislation shall be valid, and what shall not be valid.  Its office is not to make citizens, but simply to lay down the criterion by which the citizens shall be recognized.  "Whites legally members by adoption, etc.," are its words.  White men who have been made citizens by some special, or general, act of the national council, "shall be deemed to be citizens of the Cherokee nation."

1 Andrew Jackson (1767-1845) was the seventh president of the United States , from 1829 to 1837.  He signed the Indian Removal Law in 1830, mandating treaties for land exchange with Indian nations.  During his presidency nearly 70 treaties were ratified, and most were for land sales and removal of the eastern tribes. In his first annual message, he recommended a "speedy Indian removal." He spoke against Indians retaining their own form of government and referred to their tribal lands as foreign threats on American soil, even though the Supreme Courts had recognized tribes as "sovereign domestic nations."  Jackson was president from 1829 to 1837.     Back

2 Freedmen's case:  When the Dawes Commission was establishing citizenship rolls for the Cherokees, it entered the names of Freedmen on separate rolls.     Back

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Indian Chieftain

May 13, 1897

All Individual Rights Denied:

The Nation Alone Should be Considered In Disposal of Lots

            Editor Chieftain:--The Choctaw agreement provides that the town lots shall be sold.  From the writer's point of view, this is a very objectionable arrangement.  It is obviously a scheme planned by selfishness in the interest of moneyed speculation.  If town lots can be carved out of the common domain and sold to the highest bidder, then tell me, pray, why not a farm anywhere on the public domain?  The principle at the bottom of this scheme, if applied in general, would do away with allotment entirely, and transform the common domain of the nation into a mere speculative stock, to be sold out at auction: a result so unjust to the great majority of the people as to be truly odious.

            Nor is the evil improved very much by the plan recommended by the Chieftain for the Cherokees, indeed it is only made worse by being more unjust to the people at large.  Instead of selling these lots for the benefit of the common treasury, it proposes to give them to the occupants; or, which is the same thing, to demand for them only a "nominal" price.  This liberality is claimed to be just for the following reasons:  1. Because these occupants once bought these lots and paid cash for them;  2. Because these lots are now chiefly valuable on account of the improvements placed upon them by the occupants.

            In answer to these arguments, it is only necessary to say that the first is fallacious because it proves too much.  If, when allotment day comes round, every citizen should be made a present of all the land that he has bought from other claimants and paid his cash for it, or if he should be required to pay into the common treasury  only a "nominal" sum for it, it is obvious that there would be but little land left in which to share and share alike.  At least half the nation would have to go landless and homeless.  But the city-lot owner will say,  "O there is quite a difference in city lots and improvements on the high prairies!"  Yes there is truly a difference in physical conditions, but none whatever in rights, justice, and the doctrines of allotment.

            As to the second agreement our plea is a specific denial.  The improvement placed upon these lots have added nothing whatever to their market value.  Let it be borne in mind that improvements, under the laws of the Cherokee nation constitute no part of the realty upon which they stand.  Improvements are personal property and belong to the party who made them; while the land belongs to the Cherokee people.  The argument is founded on an idea which has been imported from the states, where land is held in severalty, and where improvements are regarded in law as a part and parcel of the realty.  Under such an arrangement, of course, every fence or house built, every well dug, or acre plowed, must needs add to the value of the estate.  But it is not so here in the Cherokee nation.  The improvement is one thing; the land is quite another.  And it is understood that this distinction is to be well observed in making the allotment,  The man who claims a lot on Main street and has built a brick block upon it at a cost of a hundred thousand dollars, is in precisely the same fix under our Cherokee laws, as would be that man who owns the adjoining lot and is using to for a pig pen.  When allotment day comes 'round neither of these two gentlemen can be heard to claim any special favors or advantages because of any increase of value which has been added to the realty by means of their industry.  The lots in each case must be allotted; and in order to make way for this operation, the stockman and the block-builder will be left alike to take care of his personal effects.

             And yet it will not do to say that these town lots have not been increased in value since the founding of the town, it will not do to say that a lot on Main street in Vinita1 is worth no more than the same amount of land on the wild prairie.  But here is the question:  Where did this increment of value come from?  Was it imparted to them by the improvements, built upon them?  Not at all.  These improvements, it is true, may be exceedingly valuable but as we have said they are no part of the realty, but personal property, carrying their value in themselves, and as such can no more add to the value of the lots upon which they stand than a fine horse can be said to add value, to the ground upon which he is allowed to prance.  This argument is indeed so fallacious that its very reverse is true.  Take that brick block that stands on a commodious lot on Main street , and valued where it now is at fifty thousand dollars, ands set it out in the prairie a little way; what is it then worth?  Scarcely the brick and mortar that compose its wall.  The truth is it is the lots that give value to the improvements; and not the improvements, to the lots.

            But in order that these lots should impart value to these improvements, they must have had value themselves; they could not have given that which they did not have.

            Where then did these lots get all their immense value?  Conceive of a state of things like this: the utter annihilation of all the city improvements, together with the railroad and all its advantages leaving nothing but the soil in a state of nature; the land composing these town lots would then be in a manner worthless, and if you should erect upon one of them a building worth a hundred thousand dollars it would have but little tendency to increase its value.

            But in this desolate state of nature, let a good railroad come along and these lots at once begin to rise in value.  This truth was fairly illustrated some years ago in the case of the town of Vinita , when the M., K. & T.2 made its advent.  Prairie ground that had been lying there for time immemorial too poor to win the attention of a claimant immediately became an exciting prize in the game of "grab"; wire fences were spun out in every direction and for immense distances in the hope of encompassing by chance the site of the coming city.

            Then in addition to the railroad, there came along a great increase of population throughout the whole country; and population is the only true basis of value in real estate.  But, mark you, it is not the presence of a city population that maintains the value of town property the city is supported by the country.  Answer for yourself:  What would become of Vinita were it not for the vast population round about occupying the country districts?  Not even the presence of the railroad, nor all the exertions that the city people might put forth, would be able to keep the prices of town lots at their present figure, without this external population.

            No, sir, these city occupants have no rightful claim to the honor of increasing the value of these town lots by means of their improvements, nor even by their presence as residents in the city.  The only value that these lots have is due to the existence of outside population, and the presence of the railroad; two sources of value in which the people at large have an equal interest, and which cannot be monopolized by the city residents.

            City buildings, however ponderous, are but chattels under our law, like household furniture, or cattle, or farming implements; they are movable, and as such , can add no value to the land upon which they chance to be.

            This being the case, we may ask what becomes of those bounteous equities which these lot owners are to have the soil they are occupying, because of the improvements they have made?  They have been occupying this property, it is true, for a long time, which they had a right to do as ones among all the other common owners of the soil.  But does that entitle them to the exclusive ownership?  Or to buy out the interest of all the rest of the Cherokee people at a mere "nominal" price?  The writer thinks not.  It would be a most odious piece of partiality in public administration.  The farmer has just as much right to claim special equities in the farm which he has bought and improved as the townsman has to claim the same in the town lot which he has bought and improved; and if the farmer has to surrender his farm to be disposed of by allotment, we can see no valid reason why the townsman should not be required to give up his town lot to be disposed of in the same way.

            Let us all tote even!

 

1 Vinita: A city in the northern Cherokee Nation established at the junction of the first north-south and the first east-west railroads in Indian Territory .    Back

2 M. K. & T.: The Missouri, Kansas , and Topeka Railroad, also known as the Katy, was the main north-south line through Indian Territory . The first railroad in the Territory, it began in 1865 as the Southern Branch of the Union Pacific Railway.     Back

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Indian Chieftain

May 20, 1897

A Halt Suggested:

Fears That The Railroads Will Secure Their Coveted Grant

            Editor Chieftain:--There has been a continuous series of efforts moving on part of these railroad companies ever since their charters were granted in 1866, to perfect their title to the land covered in the grant , by beating the Indians.  The encroachments by which these corporations have pushed themselves upon these Indian people, and trampled their rights under foot, is so high handed and egregious that it is difficult for an honest mind to think of it without feelings of resentment.  Of course the railroads were, from the beginning, a necessity; but to plant them in this country; it was not necessary to rob and oppress the people who lived there.  As it is, they constitute a glorious step forward in the progress of civilization made through the filthy avenues of greed and fraud.

            When this railroad agitation began in 1866, the title and ownership of these lands, as is very well known, were abiding in the Cherokees; (by these terms we mean the men, women and children, who compose the Cherokee tribe of Indians.)  In 1866 congress, by the influence of the capital and the management of powerful lobbies, was induced to promise these companies that just as soon as the title of the Indians should become extinct they should have every alternate section of land within a strip of territory twenty miles wide running through the entire length of the Cherokee country.  Now there was nothing wrong in all this so far; for there is nothing more familiar in history than the extinction of an Indian tribe dying out under the crushing heel of civilization.  Congress might very reasonably look forward to a time in the no distant future when there would be no Indian to own these lands.  Moreover it is agreed in the treaties between these Indians and the United States that when the former ceased to be the owners of these lands they should then become the property of the latter; that is to say they should become the public lands of the United States , to be disposed of as other federal domain.  Now there was nothing wrong in all this so far.

            But here comes the tug and tussle:  The Cherokees were a numerous and powerful tribe; they were evincing a wonderful degree of vitality.  Indeed as a people, they were bidding fair to prove, in the long run, quite as inextinguishable as the Jews themselves.  More than that, it came to be regarded by whites, negroes and all other races, both an honor and a privilege to become Cherokees; and thousands who had not a drop of Cherokee blood in their veins, were rapidly coming to be recognized, in law, as veritable Cherokees.  Under such circumstances these corporations, of course, saw that their chances for succeeding ever to the estate thus conditionally granted, were hopeless; and their cupidity might, in an indefinite flow of years, chafe itself to death unrequited.  To relieve the situation a flank movement had to be made.

            The Cherokees had unfortunately abandoned their ancient tribal form of government, and had organized themselves into a constitutional body politic, modeled after the government of the United States.  It was obvious however that this must needs be quite an ephemeral affair.  All the forces of civilization might be easily marshaled against its existence for any great length of time.  Hence, if the so-called Indian title to these lands were only vested in this body politic, a beautiful vista would be at once opened up into the future that would enable these corporations to see very clearly the time when they would have the chance to lay their hands actually upon the coveted prize.  Hence, a big and earnest work was inaugurated by these corporations the purpose of which was to secure the transfer of this Indian title from the Cherokee people and invest it in this less enduring creature, called the Cherokee nation, this feeble, frail, and dying body politic.  To aid them in this work, they enlisted many powerful forces both in congress and out of congress.  Long and tough was the struggle, 1866 to 1896.  At length the supreme court of the United States , in its late decision of the freedmen's case1, was induced to admit that the desires of these corporations were right.  The language of the court in that case, is this:  Although the title of these Cherokee lands was originally, and was understood to be, both by the Indians themselves and the United States, in the people composing the Cherokee tribe, nevertheless, when they organized themselves into a constitutional body politic, this same title somehow slipped out of the people and crept into this body politic and permanently invested itself there.  It is not our purpose here to criticize the common sense of this dictum; it is our aim simply to show what an accommodating thing it is for the convenience of these corporations.

            Now in view of what has been said; let us see what is the situation.

            1.  We, the Cherokee people, have agreed that when we cease to own this land, it shall become the property of the United States .

            2.  The supreme court of the United States has held that the title of this land is not in the Cherokee people, but in the Cherokee government.

            3.  Under this decision, there is nothing to prevent this title from vesting at once in the United States, but the single fact that it is detained in the Cherokee government by virtue of this decision.

            4.  But the United States has already conveyed by charter every alternate section of these lands to the railroad corporation, the grant to take effect as soon as the Indian title is extinct.

            5.  Now at this degree of consummation in the general scheme here comes the Dawes Commission, and by them we are asked to consent to an annihilation of our body politic, the only and last safeguard left for our title to these lands.

            Now in the midst of this state of facts, let us suppose a case; suppose we accede to the overtures of the Dawes Commission2, and today abolish our Cherokee nation; let there be no more a Cherokee body politic; what then?  Why, all our Cherokee public domain would at once become by virtue of our own agreement, the public lands of the United States government.  There would not be a single Cherokee on earth owning an inch of soil in his own right.  The only way he could save his home would be by a grant from the United States which is the legal owner.  Moreover the title of the railroad company to the alternate sections within their grant would be complete; it would take this simple shape, to wit:  A grant by the United States of public lands to the railroad corporation; a title which would be unquestionable.

            You see where we are going to; is it not time to call a halt?

 

1 Freedmen's case:  When the Dawes Commission was establishing citizenship rolls for the Cherokees, it entered the names of Freedmen on separate rolls.       Back

2 Dawes Commission: Authorized March 3, 1893 under a rider to an Indian Office appropriation bill and chaired by Henry L. Dawes.  Its purpose was to convince the Five Civilized Tribes to cede their tribal lands through individual plots over to each member signed up on the National Registry or roll under the General Allotment Act of 1887, also known as the Dawes Act.  Individual plots could then be easily purchased from Native Americans for white expansion, and "surplus" land could be opened to white settlement.       Back

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The Indian Chieftain

May 20, 1897

The Townsites Again:

An Examination of the Characters of the Agitation Indulged.

            Editor Chieftain:  In our article last week we endeavored, (and we think successfully,) to show that the improvements made upon town lots had no tendency, under the peculiar nature of our Cherokee land system, to augment the value of said town lots; and that the claim made by occupants to certain equities, (that is to say, certain measures of favoritism,) which have accrued to them because of this impartation of additional value, is without foundation and wholly fallacious.  In this, it is our purpose to inquire as to the nature of the much-agitated town-site question.

            If the land which now belongs to the Cherokees, belonged to the United States , we do not say but that it might be all right enough for speculators, and jobbers in general, to importune congress to carve out of the tract at large, enough land to locate townsites sufficient to fully satisfy the whole purpose of the scheme.  But it so happens that the land to be townsited does not belong to the United States, but to the men, women and children who compose the Cherokee tribe of Indians; in other words it is private property.  An act of congress ordaining the setting apart of grounds for townsites in Cherokee lands would be, both in fact and principle, precisely the same as if an attempt should be made in the same way to appropriate for such a purpose the cultivated farms in the state of Arkansas, or Illinois.  It would be an invasion on private rights warranted by no law or precedent in the history of American civilization; a novelty in the schemes of speculation that caps the climax of injustice to the poor Indians.  The hardihood that is engaged in urging this townsite business upon the attention of congress is historic, nay proverbial.  It has never been able to recognize the sacredness of private property when the owner of it happens to be an Indian.  It will talk as complacently about appropriating and disposing of the lands of the Cherokee people as if these lands were but a portion of Terra Incognita1 just now, for the first, made available by dint of discovery.  The Indian may show his deed or patent, and it will promptly admit its entire sufficiency as an instrument of conveyance; and yet within three minutes after this admission, it will proceed to introduce a bill in congress asking the enactment of a law to annul it and set it aside.  The founding of towns and the building of cities by arbitrary edicts is a practice peculiar to despotisms; in countries where autocracy is master and the people are slaves; where the ruler commands not only the soldiery, but the hands of private labor, and uses the sinews of his subjects in heaping up useless pyramids of amazing dimensions; and directs the currents of commerce to whatever port his caprice, or ambition, may prescribe.   Herod, Pharaoh, Nebuchadnezzar, and Alexander, two and three thousand years ago--these are the fellows that laid off  townsites, founded cities and peopled them with captive nations.  But this kind of doing is not usual among modern free people.  Cities and towns in these days, with us, are of spontaneous growth; like cuckleburs, they spring up irresistibly when the ground is prepared for them; and this is the only fair and healthy way in which a city can be brought in to existence.  It is no part of the functions of civil government to go round and look up sites and found cities for the people.  Let the government carefully take care of the rights of the people, and the cities will take care of themselves.  The truth is, these whole townsite agitations is but an abnormal development of the thrifty, greedy times in which we live; a device contrived by the spirit of monopoly to heap up fortunes by fleecing the poor.

            Do you take issue upon this assertion?  Let us look into the matter a little further.   The lands to be embraced in these townsites are to consist of the choice, the most valuable, tracts anywhere to be found in the whole Cherokee domain.  These lands, too, are acknowledged to be the common property of all the Cherokee people.  Now take into consideration the fact that the majority of these people are men of limited means, many of them noble characters but financially poor.  They are quiet, honest laborers at home; they are not strolling speculators.  They are qualified neither by experience nor wealth, to go into the circle of gambling speculation that may assemble around and about the auction block.

            Now these townsites are to be divided up into lots, and these lots are to be sold at public auction to the highest bidder.  But who are these bidders to be?  Where are they to come from?  Are they to come from the great mass of the Cherokee people?  Will it be said that every Cherokee citizen will have a fair chance to compete for the possession of these gold-tinted tracts of soil?  Not at all, not at all.  These bidders are to come from the limited circle of the rich; our hundred thousanders, our millionaires, our nimble-footed monopolists, who have already jumped and gobbled up all these proposed townsites and are claiming some kind of lien, or preemptive right upon them.  These are the men who now stand ready to take these townsites graciously from the hands of the government.

            But where, all this time, is the great, rural, impecunious population of this country, the real owners of the property which is now up as a prize to be raffled for by this moneyed few?  They stand upon the borders of their country homes and from a distance look solemnly, not to say tearfully, on the operation of this common robbery as it proceeds, without the least chance to defend themselves against the iniquitous invasions.

            As an offset to these things, it will be said that the rights of this great mass of poor people will be provided for in the money which these successful bidders are to pay for these lots.

            Yes, the money which these purchasers are to pay for these lots!  What of this money?  Well, in the first place, this money is to be a “nominal” sum; that is to say, the purchase is to be a sham purchase; a transaction in which the purchaser is to give a button and receive from the constituted authorities a warranty deed.  In this way the grab is to be made complete.  If not this, suppose the sale to be made in good faith for the full value of the property conveyed; what then?  Here comes a big pile of money belonging to the poor undistinguished men, women and children called the Cherokee people.  But where is it going to?  To whose hands is it to be entrusted?  Say it goes into the national treasury subject to the legislation of the national council.  What then?  The four hundred thousand [dollar] steal effected but a few days ago through the legislation of this same national council is not forgotten; nor is the twenty-two thousand five hundred [dollar] grab made but a short time before that, entirely out of mind.  When the people allow their minds to run back for a few years along the past history of our national administration and note in passing the amazing frequency with which the vaults of our national treasury have been raided, there is none of them that can feel willing to have their interest in the lands of the country converted into money and then that money subjected to such risks as it would have to run in the hands of our national authorities.  The fact is, the Cherokee government, by indulging an over- frequency of these stupendous steals, has justly forfeited the confidence of the people.

            There is only one fair and honest way to dispose of the valuable real estate embraced in these townsites; and that is simply to let them go right along in the same scheme of allotment with all the rest of the public lands.  Let these townlots be appraised at what they would in the market today, aside from the improvements that have been put upon them.  Then if the occupant wishes to take the lot which he is on at the valuation, as such a portion of his entire allotment, let him do so.  This is precisely the way in which it is proposed to treat the country farmer in giving him his allotment; why should there be an exception made in favor of the city merchant, or city banker, or city speculator?

 

1 Terra Incognita: Unknown or unexplored territory.      Back

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Indian Chieftain

May 27, 1897

Too-Qua-Stee At Tahlequah

He Very Clearly Sizes Up The Situation And Discusses It

            Editor Chieftain:- The treaty commissions are still sitting; the time, so far, has been spent in hearing claims against the Cherokee people, which the claimants maintain should be satisfied out of the national property before allotment should take place.  The town-lot claimants urge, by way of argument, that the country at large is very much indebted to them for valuable services rendered; they built a city for the people, which, if they had not benevolently volunteered their services to do, the poor people of this country would be today without an emporium in their midst, and have to go away to other distant towns to buy their supplies, if not be denied the privilege of getting them at all.  This argument is very effective; it is an appeal to the sympathetic instincts of human nature.  Think of it; just to see all the good people of Cooweescoowee district1 suffering for sugar and coffee, dry goods and bananas, simply because we have no men to build a Vinita2 in which they could be had!  The spectacle truly is enough to fill the community with a sense of harmless terror--harmless because these fellows have bravely met the calamity on our behalf and shielded us from its miseries.

            And yet, after all, these our deliverers were pretty tardy in their relief expedition; it was not until after the people came in and filled up the country around in numbers sufficient to furnish them the means with which to do this great work of benevolence, that they could be persuaded to lay a single brick.

            The Delawares are on hand asserting a claim against the Cherokees who kindly took them in when they were needing a home3.  They maintain that they are entitled to all of the 157,600 acres, the occupancy of which was guaranteed to them in the contract of adoption; that those who are living are to be the heirs of those who have died and that being Cherokees by adoption, they are, in addition to all this, to have an equal share with the Cherokees in all the rest of the public domain.  They have procured an order from the constituted authorities at Washington, directed to the Dawes Commission4, commanding them to set aside 157,600 acres of the Cherokee public domain for the exclusive benefit of the Delawares, that is to say, the old registered Delawares, (what of them are still living) and not include the same in the process of allotment.

            That so arbitrary and unjust an order should issue is hardly credible.  It is an unconsidered executive act on part of the government, such as has never before occurred in the history of the Cherokee people.  It is an invasion of the rights of property, in utter disregard of all forms of law.  It is simply this: two men, Mr. John Bullette5 and Mr. Dick Adams6, go to Washington and present themselves before the executive and say, “We want you, sir, to take a great piece of property away for the Cherokees and give it to us.”  “All right, gentlemen, all right;” and so he just up and did it without the least inquiry into the rights of his petitioners to the property they asked for.

            It is true that along with the order came a few select citations, (culled doubtless by some impecunious lawyer skirmishing for bread), from the opinion of the supreme court in the old Delaware per capita case7, yet having no more reference to the real merits of the claim than so many passages from the book of Mormon.

            I feel confident that the president, when the matter has been brought fully to his attention, will not approve this act on the part of his secretary.  I do not believe the Cherokees can be induced to conclude any treaty until all these exorbitant claims are disposed of, and gotten out of the way; it would not be advisable.  Suppose allotment should take place, these claims all pending as they now are; every man’s farm in the country would be under a cloud.  Moreover, the burden of clearing the title of these individual holdings would then devolve upon the allottee; and if, in the contest, the claim should happen to be sustained by the court, he would be beaten out of his home, or at least a good portion of it.

            The Dawes Commission, I think, is not much concerned about these claims.  Whatever will be satisfactory to the Cherokee commission will be likely to be satisfactory to them.  There are only two things that the Dawes men will stick for; they will demand that the Cherokees shall allot their lands, and also that they shall make provisions in the treaty for the abolition of their Indian government within some reasonable period of time, if not at present.

            In reference to the Delaware claim, it is to be hoped that the principal chief may at once instruct his delegation at Washington to wait upon the president and solicit his interposition; for it is highly probable that negotiations will be seriously embarrassed, until that order of the secretary setting aside this great body of land for the Delawares, is rescinded.  If, however, any treaty should be concluded without this provision, I am confident that it will be with the universal disapproval of the Cherokee people.

 

1 Cooweescoowee district: One of the districts of the Cherokee Nation, it was located in the northwestern part of the Cherokee Nation, encompassing the town of Claremore.      Back

2 Vinita: A city in the northern Cherokee Nation established at the junction of the first north-south and the first east-west railroads in Indian Territory.     Back

3 Delaware Indians- The Delawares were displaced from Kansas and relocated on Cherokee lands in Oklahoma.     Back

4 Dawes Commission: Authorized March 3, 1893 under a rider to an Indian Office appropriation bill and chaired by Henry L. Dawes.  Its purpose was to convince the Five Civilized Tribes to cede their tribal lands through individual plots over to each member signed up on the National Registry or roll under the General Allotment Act of 1887, also known as the Dawes Act.  Individual plots could then be easily purchased from Native Americans for white expansion, and "surplus" land could be opened to white settlement.       Back

5 John Bullette: Bullette was born April 10, 1852 in Wyandotte , Kansas .  His father was French-Delaware and his mother was Irish-Delaware. He and his people were removed in 1867 from Kansas to the Cherokee Nation in Oklahoma .  He was employed by J. H. Bartles, founder of Bartlesville , on his ranch and in his general store.  In 1880, Bullette opened his own store in Claremore , Oklahoma .   In 1881, he was elected clerk of Cooweescoowee district. He sold his general store in 1885 and took a position under Joel B. Mayes, chief of the Cherokee Nation.     Back

6 Dick Adams: Richard Calmit Adams, a Delaware who lived in the Cherokee Nation, represented his tribe in Washington D. C. for many years.     Back

7 Delaware ’s claim and Old Delaware per capita case: the Delaware Indians had been removed from Kansas and given the use of 157,000 acres in the Cherokee Nation. Later, this transaction was interpreted as a land purchase. When the Cherokee Nation sold the Outlet, the Delawares claimed per capita payment equaling that of Cherokee citizens.     Back

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Indian Chieftain

June 10, 1897

Reasons For Not Treating

And Right Cogent and Logical Ones They Are.

            Editor Chieftain:--True, candid, and dispassionate discussion, though destructive of false policies, is never damaging to the substantial rights of anybody.  Some of our esteemed fellow citizens-these who are in favor of treating at all hazards, and with their eyes shut, tell us that there is too much talk just now for the good of negotiation; that the  minds of the common people are liable to become prejudiced against treating with the Dawes Commission1; that in a crisis like this, when a deal is just at the finger tips, we should keep still lest we make the bird fly and the whole thing be defeated, &c.

            Yet when we call upon these same fellows to give us a valid reason for making a treaty, the only answer they can give, or have ever been known to give, is like this: "If we don't do something, congress will do it for us;"  "a half loaf is better than no loaf;" "if congress gets hold of us, it will be the worse for us;" &c.

            There was a time in the history of the Cherokee people when this stupid cowardly method of reasoning on matters of state was unknown among or Cherokee statesmen; it dates no further back than 1866, when the backbone of patriotism got broken2 and speculation took the saddle.  Why cannot we now, in imitation of the example of better days, stand like men by our rights; and, if we cannot stand by them, then lie down by them?  It is far more consistent with the sentiments of self-respect to lie down by our rights and let the car wheels of ruin drive over us, than in a craven way but off the hand of spoliation at the expense of one half of our patrimony.

            It seems to be the aim of those who are in favor of treating all hazards, to scare the people into terms by making the United States government appear to them as a hideous, bloody monster, whose instinct and delight is to destroy people; and that the only way of escape for the Cherokees in the present crisis is to propitiate his clemency by laying upon his altar a large portion of our vested property rights.  It is true, the government has now and then dealt harshly with us, at times too when we were deserving the very best at her hand; yet, after all, she has never done us half the amount of wrong that we have done to ourselves.  The position of the writer in reference to negotiation is this:  If we can get terms that are reasonable-terms that promise to protect us in the enjoyment of our homes and property, and at the same time better our social and political condition, then let us threat like men, but if  we cannot get such terms as these-if we are to be wronged at any rate, then let us, like men, refuse, let congress take the matter into her own hands and dispose of us as may accord with her own sense of right.

            But this is an idea at which we hear nothing but "Poo!" "Poo!" from the "half loaf" side of this controversy.  But let us stop and think of this matter for a moment; let us get at least one business principle fixed in our understanding.  Suppose you have a fine horse, and I say to you, "I am going to have that animal; I will take him with your consent if you will give it, but without your consent if you refuse."  Now what possible motive could you have for giving your consent in such a case?  It would not better your condition.  In either event you lose your horse, while your chances for redress would be materially different.  By giving your consent to the deed you not only shield the wrong doer from a bit of punishment due to an act of robbery, but you endanger your right to even civil damages.  Whereas, if you had stood firm, if you had stood upon your rights, and, in a manly spirit, withheld your assent, the law would have been on your side, and you would have been in a position to apply for redress in the courts of justice.  Now let us apply these elementary principles to the case in hand.

            The Cherokee, as a people, are today possessed of certain rights and properties; for instance, the right of self-government, together with a vast piece of landed property and the right  to enjoy it in any way that may best suit their convenience.  But now comes the government of the United States and says to these people, "we are going to take your right of self government away from you; we are going to abolish your tribal government; we are going to set aside your title to lands in common, allot your soil, and give you titles in severalty.  And all this we are going to do, although the change may enable the railroad company and the Delaware to beat you out of two million acres of your land.  We will do this, too, with your consent, if you will give it, and without your consent if you refuse."

            Now this is the form of the question which is today confronting the Cherokee people.  The reforms enunciated in these propositions have been decreed by sovereign power; they are coming upon us and are inevitable.  If we assent, they are coming, if we protest, still they are only coming.  Whatever we may do, whether we protest or assent, there will be no difference in our material, but a vast difference in our legal condition.  If we assent by treaty to these propositions, we bargain away, (and we shall be bound by our contract), all the protection which we now enjoy under our patent; but if we decline, if we refuse to treat, we lose nothing of our legal guarantees, and are none the worse off as to our material condition.  The law will be on our side, and who knows but that the time may come when we shall be permitted to enter the courts and vindicate our rights under our patent, notwithstanding the arbitrary proceedings in the matter on the part of congress.  It is true, congress claims the rights to annul our Indian treaty, but we are not aware that she has ever deemed herself competent to annul a charter or a patent.

            But it is said the pendency of this railroad claim is not a sufficient ground to justify the Cherokees in refusing to treat for allotment.  Let us, then, look into the matter.  If, by means of this claim, the powers to be engaged in this allotment scheme should find themselves unable to give the allottee a perfect title to his tract, then certainly in the judgments of common sense, it should be regarded as a good cause on part of the Cherokees for refusing to treat, and we confidently affirm that, without the consent of the railroad company, a good title in fee simple to the allotee, is an utter impossibility.  The honorable commissioners on part of the United States , and also as many at least as three, on part of the Cherokee nation tell us there is no danger at all in this claim.  But with all due respect for the wisdom and high authority of these honorable gentlemen, we are constrained to traverse their assertion.

            Let us again appeal to elementary principles.

            This railroad company certainly has some kind of interest in these lands, else what does their charter mean?  Why did congress make to them this solemn grant ?  This, then, must be conceded.

            Now take a case:  Suppose you have a horse which you are, by agreement, to hold until your title becomes extinct, and then the animal is to be mine.  Suppose too, in the mean time, you sell the creature to Mr. Jones and you get your money for him.  Then whose horse is he?  Why mine of course, because your title is dead; the consideration has been fulfilled which perfects my title.

            Now let us apply these elementary principles.  The Cherokee government owns these lands in question, and the title is called the "Indian title."  But it is provided in the charter that when this "Indian title" becomes extinct, the land shall go to the railroad company.  Now the plan proposed by the honorable commissioners is, that the Cherokee government shall deed to the allottee.  Suppose then that this is done.  Of course, in that case, the title of the Cherokee government, that is to say the "Indian title," is extinct.  The Cherokee government has no more interests in the lands, and is forever out of the case.  It is true, the land has been deeded to the allottee, but that deeding is the very transaction which vests the title in the railroad company.  But, says the honorable commission, "that may all be so, but the United States proposes to guarantee the title in the allottee,"  Let that be conceded.  We may then enquire as to the nature of this guarantee.  Does a guarantee have any tendency to improve and make the title better; does it have the effect to keep and continue the allottee in the undisturbed occupancy and enjoyment of his home?  Does it put him in any better position than he would be without it to make a stand-off with the railroad company?  No, not at all.  It only gives the allottee a claim for damages against the United States in case the railroad company should oust him.  But damages and lawsuits are not what the allottees are wanting to bargain for.  They want permanent security in the enjoyment of their homes, and if allotment cannot secure that boon, then we say no allotment.

            O yes, the honorable commissioners in addition say that the extinguishment of the Indian title is not enough to invest the title in the railroad company.  It is true, that when the Indian title fails, the land becomes the property of the United States by virtue of her right of reversion; it becomes truly "government lands," but before the railroad company can get it it must become "government public lands."  This, you see, is getting down to a very fine point-so fine as almost to carry the idea that there is an attempt to trifle with the credulity of the Cherokee people.  Well nigh indeed, it is a distinction without any tangible difference.  But let us concede all that can be possibly, due to this horn of the argument.  What then?  What does it take to convert a piece of "government land" into "government public land?"  Only a little piece of legislation that might be whipped through the halls of congress any day; an easy job indeed when pushed up by a powerful corporation commanding millions of lobby money.

            What now, from this standpoint, is the aspect of the title which the honorable commissions are preparing to give the allottee?  It is most obvious that his safety in the continued possession and enjoyment of his allotted home would depend just upon the result of a legislative vote in congress, as remotely upon a popular vote at the polls.  In short, his title becomes a mere political question, and his sojourn upon his cherished premises will turn simply upon the policy of the party that may be in the ascendancy.  And would you call a title so precarious as that a good title?  No, no, no sir.  And yet in case of allotment, that is the hest that the honorable commissioners can promise all those allottees who take their allotments on the odd sections within the limits of the railroad grant .

            For these reasons we are of [the] opinion that it would be much better for the rights and interests of the Cherokee people to have all these matters ordered and disposed of by congressional legislation than by agreement with the honorable Dawes commission upon the hard terms which they now propose.

            We have asked the honorable Dawes Commission to petition congress for us to repeal this railroad charter and thus open up a fair and safe way for negotiation, but they tell us that congress will not do it; and she will not do it because she can not do it.  There is no power on earth that can set aside this or any other charter.  And we submit whether our patent or any patent is not just as sacred as a charter.  Moreover, it is no unimportant matter that our Cherokee patent is an older instrument than the railroad charter; it gives the Cherokees the advantage of priority of title, and if the law is allowed to prevail in our behalf, it must necessarily stand forever as an impregnable bulwark around our landed interests, unless, on the silly principle that "a half loaf is better than no loaf," we demolished it by means of reckless agreements.

 

1 Dawes Commission: Authorized March 3, 1893 under a rider to an Indian Office appropriation bill and chaired by Henry L. Dawes.  Its purpose was to convince the Five Civilized Tribes to cede their tribal lands through individual plots over to each member signed up on the National Registry or roll under the General Allotment Act of 1887, also known as the Dawes Act.  Individual plots could then be easily purchased from Native Americans for white expansion, and "surplus" land could be opened to white settlement.     Back

2 Treaty of 1866:  After the Civil War, the federal government insisted on making separate treaties with each tribe in which some of their members had fought for the Confederacy, even though others in that tribe had sided with the Union .  This treaty set free the black Cherokee and abolished slavery forever within the Cherokee Nation.  With regard to the concessions made in the treaty to railroads, Duncan characterized this treaty with the following:  "Congress, by the influence of the capital and the management of powerful lobbies, was induced to promise these companies that just as soon as the title of the Indians should become extinct they should have every alternate section of land within a strip of territory twenty miles wide running through the entire length of the Cherokee country."      Back

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The Indian Chieftain

June 24, 1897

A Momentous Occasion

An Epoc-making Event in the History of the Cherokee Nation

Fullblood Eloquence-Treaties Held Sacred by the Indians and a Necessity for the Change Denied

 

            Editor Chieftain:  There occurred recently in the senate chamber at Tahlequah an incident which, from a moral point of view, equaled, and perhaps surpassed in grandeur and pathos, anything that ever happened in all the history of human affairs, the tragic day of the crucifixion alone excepted; and yet like that awful scene of Calvary, it passed off as but a commonplace phenomenon; and, at the time, left no abiding impression upon the public mind.

            The Dawes Commission was there; they had come to confer with the Cherokees in reference to the allotment of their lands, the dissolution of their tribal government, and their becoming citizens of the United States .

            For nearly a week the commission had been exceedingly beset by a swarm of importunate petitions praying for various personal advantages to the be secured to them by means of special stipulations to be embodied in the treaty which, as supposed, was soon to be concluded.  These were mostly white men who had come into the country under the franchises of marriage, and were insisting on their right to share with the Indians in the distribution of their lands, together with a like number of mixed-bloods who were equally obtrusive in demanding that suitable provisions should be made in the treaty for the protection of certain speculations which they had ventured in town lots.

            The full bloods were plentiful about the council ground; but they neither sought, nor seemed even to desire, any contact with the commissioners.  They had no sordid favors to ask, no axes to grind; but, in the meantime, they kept themselves quite aloof and solemnly counseled with one another, in reference to the momentous propositions which had been submitted by the government.

            At length, all economic questions being pushed aside for a moment, the commissioners expressed a desire to see, and hear from the real people of the country.  Accordingly, in response to a special invitation, a courteous reply was returned to the effect that they would be pleased to appear by representation before the commission the next day at their morning session.

            On the morrow, at the appointed hour, as many as three portly men of decidedly aboriginal appearance came filing into the chamber and took their seats in the auditorium.  The commissioners, also three in number, had already entered and resumed their positions of state.  The house had been early crowded with a mixed concourse of people, all on the tiptoe of curious expectation; for the occasion had been looked upon by all as one likely to be attended with something of dramatic interest.  The words of the government in regard to pushing forward the negotiations had been peremptory, while at the same time it was well understood that the ultimate terms conceded by the commission were only such as could never possibly prove acceptable to the inflexible patriotism of the full blood mind.  Indeed every circumstance seemed to point forward very clearly to a season of intense feeling and earnest words; and as the full bloods had always enjoyed the reputation of wielding a controlling influence in shaping political results, everybody was anxious to be present in order to hear and learn the position they would take in reference to the great question before the convention.

            The moral aspect of the meeting thus constituted was remarkable; it was virtually the coming together of two of the principal races of mankind to discuss no less a subject than the surviving chances for further national existence.  The white men had literally summoned the red men before them to show cause, if any they had, why their name, as a people, should not be expunged from its ancient place upon the annals of time; why their national history, coming down through a countless series of centuries and redolent with so many cherished traditions, should not be brought, once for all, abruptly to a close.

            All were seated and a few moments of suspense ensued, affording a solemn interval for the study of character and melancholy reflection upon the terrible vicissitudes that are wont, in the course of time, to betide the nations of earth.

            Conspicuous on the one hand sat the commissioners on part of the United States , the accredited representatives of the all-conquering white men; and facing them, equally prominent in the midst of the expectant multitude, sat the dark-skinned, stalwart personators of the once independent, but now subjugated, proprietors of the western world.  Each side was characterized by a peculiar and very interesting dignity of its own; that of the former was indeed reverend, yet it was of that tame and unpoetic kind which usually shows itself in connection with a consciousness of acknowledged superiority over environment; it was the dignity of the lion as he sits in a state of quietude by the side of the prey which he has crushed.  That of the latter, on the other hand, was all of dignity in the truest sense – dignity adorned with every conceivable element of grandeur; that heroic kind which, when defeated hopelessly at all points in the open field, retires into the citadel of its own great being and there, with unyielding fortitude, welcomes and at the same time defies the peltings of “outrageous fortune.”

            Each side, too, had a biography which, when touched by the wand of reminiscence, yielded abundance of rich material for enhancing the general interest of the occasion.  The two had been brethren once, a few millenniums ago, upon the lovely Plain of Shinar1; but, becoming alienated from each other by so foolish a matter as a diversity of language, they quarreled at the foot of old Babel2, and parted company, the one toward the east, the other to the west.  Each having made a semi-circumference of the entire globe, they met again on the opposite hemisphere, but only to renew the absurd wrangle.  In the meantime, one had multiplied in numbers amazingly, and had become what is called civilized; that is to say, they had acquired a knack for invention, had mastered the arts of comfort and gratification, and had learned how to use the destructive elements of material nature for the purposes of aggression and defense.  But their social system had become miserably corrupted by the substitution of conventionalisms for natural principles.  They deemed, for instance, the rule of the majority to be right without regard to the sanctions of the moral law.  “The greatest good to the greatest number,” they held, was the legitimate and only end of all human government; and under the influence of this political heresy, plighted faith ceased with them to be a binding guaranty any further than it happened to be endorsed by majorities sufficient to avenge its infraction.  Solemn treaties were held to be repealable.

            Between two families of people who had been so long and so widely estranged from each other, and between whom there had sprung up such incompatible notions of honor and moral obligation, anything like harmonious intercourse and good neighborhood could not, of course, be expected.  Accordingly unwarranted aggression on part of the white men early provoked a conflict of races; and a ceaseless repetition of the same offense, under various sophisticated pleas of jurisdiction, kept the flame of war alive for more than three hundred years3, and down to the present day.  The red men were beaten in the field.  Finding arms and valor insufficient as a means of defense against the attacks of their overbearing brethren from the east, they determined, (and it was the best thing that they could do) to test the effects of moral forces; they endeavored to bind the evil hands of the white men with the ligatures of treaty stipulation; and, in order to give the restraint thus imposed all the needed force for the purposes of future safety, they adopted the practice of granting to them large scopes of their valuable territory in consideration of the pledges received.  But it was all to no purpose; for no sooner had the land thus ceded been fully occupied, (and often times even before) than renewed intrusion had given rise to new hostilities, necessitating a new treaty of peace, an additional cession of lands, and the further retirement of the red men beyond the confines of present aggression.  The futility of any effort to purchase peace and immunity of the white men in this way, soon became obvious, and the red men were fain to abandon the scheme.  But it was too late; the plan had worked well, to the notion of the former, and it at once became, with them, a very favorite mode of procedure.  Hence as additional territory became desirable from time to time; old guarantees were claimed to be incompatible with the demands of civilization, and armed forces were sent into the country of the red men of sufficient power to extort from them an amicable agreement called a treaty and the work was done; the red men retired as usual and the white men sat down upon their estate.

            But not to digress further, the Dawes Commission had by means of official declarations, given the Cherokee people to understand that the reforms proposed would be consummated either with or without, their consent; and that they should not deceive themselves by trusting to their treaties as matters of sufficient moment to stay the hand of the government; for it was the intention of Congress to override all these guarantees by means of arbitrary legislation.

            The speaking began and the three orations occupied the whole of the forenoon.  The language used was the unadorned, laconic Indian.  It is not within the power of English translation to do full justice to these three speeches; yet thought after thought was regularly snatched up as it came glowing from the furnace of inimitable eloquence, and shaped somewhat to the comprehension of the commissioners by means of skillful interpretation.  Each oration had its own leading idea; that of the first was, the effect of the reforms proposed, (if adopted) upon the well-being of the full blood people.  “What,” he exclaimed in a torrent of language, thought, feeling and argument equal to anything ever seen in Grecian or Roman classics.  “What will become of that class of people whom I today have the honor to represent?  We know the white men; they are a proud and overbearing race.  We full bloods can never live with them.  Their laws are too many; they are written in big books, and in a language, too, which we cannot understand.  We shall never know when we are violating their laws until we are arrested and dragged away to trial.  Your judges, too, will be white men; they will not be able to talk to us.  When on trial, we shall be at the mercy of the white men; when convicted, we shall not know the nature of our offense; and when punished, we shall not know whether we have been punished according to the law or against it.  We can never live with the white men.  If it be indeed the intention of the government to annul our treaties and turn the white men in upon us, it would be much the same as if the great father at Washington should take us up and plunge us all headlong into hell; death would be preferable.”

            The prevailing idea of the second oration was the sanctity of treaty obligation.  He said:

            “You ask us to make a new treaty; but we can not see the need of any new negotiations.  You tell us that our old treaties are not good; but there was a time when you did not think so.  When did they lose their force?  Who is it that has spoiled them?  It is not we.  We have violated no treaty; we have broken no law.  What is the matter with our great father at Washington?  What is the cause of his offense, that he should annul our treaties and destroy our nation?  Treaties never die except by the consent of the parties.  The United States makes treaties with England , and they live forever.  The great father at Washington never thinks of spoiling them.  Why should he consider the treaties which he has made with us any less sacred than those he has made with the men on the other side of the big water?  It is unjust to spoil our treaties.  We are a small people, much smaller than we used to be.  I know we shall have to yield to the wishes of the government.  The great father has many big guns; their protection was promised to us.  Yet we know that unless we obey him, they will not be our protectors; they will be turned against us.  Yet if resistance was practicable, and it was at all availing, I should willingly pour out my blood in defense of the rights of my people.”

            The words of the third speaker were different from those of the other two in tone and elevation of spirit.  Said he:

            “I am an old man.  I have spent the greater part of my lifetime going about trying to do good.  My business has been to preach the gospel.  It has been my special care to look after the young men of our country and lead them in the right way.  I have pointed them to the Savior of the world who died on the cross; and in doing this, I have also been in the habit of recommending to them the ways of the white men as something worthy of their imitation.  But I begin to doubt whether I have been doing the right thing.  If what we hear from the commissioners be indeed the words of the white people – if they really mean to annul our treaties and break faith with us in that way – then their example will be no more worthy of an Indian’s imitation.  The good results of my labors among my people will be blasted.  I shall not feel like preaching to our young men any more; they will laugh at me and ask me if I would like to have them do like the white men.

            I am not in favor of making a new treaty: our old treaties are all that we need.  It is said we have a great deal of crime in our country: there would not have been so much if the United States had complied with her treaties with us.  We have laws, and we have courts of justice.  When one of our own people commits a crime, we can try him and punish him.  But the government allows white people to come into our country contrary to our treaties.  They commit crimes, but we are not allowed to handle them.  They are allowed to stay here, and it makes our country look like a hiding place for criminals, when we are not at fault.  All we want is peace.  We only want to be let alone.  I am not in favor of treating.”

            At the close of the speaking, one of the commissioners arose and for himself and his associates, said in substance:

            “We have heard what you have had to say.  We have felt the force of your words, and appreciate your feelings.  We sympathize with your from the bottom of our hearts.  But what you want is beyond our power to grant .  Congress has determined to make a change in the political condition of your country, and we can’t help it.  We can only advise you to be wise, improve the opportunity offered you, and prepare for the inevitable.”

            The scene, from a moral point of view, was indescribable; it was simply awful.  It was a spectacle never to be forgotten.  It was the white man’s boasted, civilization brought down to lick the dust at the feet of the red man’s so-called barbarism; an exhibition at which the moon might well blush in blood, and the sun hide his head forever in the caverns of universal night, from motives of intolerable shame.

 

1 The Plain of Shinar is a location described in the Bible where people built the Tower of Babel in their attempt to reach heaven.     Back 

2 Bible:  the reference is to the Tower of Babel in Genesis 11:9.      Back  

3“Flame of war alive 300 years”:  A reference to 1492, when Columbus arrived in North America.    Back

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The Indian Chieftain

June 28, 1897

 

Difficulties Galore: A Pessimistic View of the Indian's Prospects

Many Difficulties Loom Up as the Various Interests Are Being Encroached Upon--Too Many to be Taken Care Of.

            Editor Chieftain:--The operation involved in the allotment of our Cherokee Indian lands is, when looked at in a common sense way, extremely simple, requiring an application of only the most elementary principles of right and justice.  If a poor mother has two children to feed and a single cake to divide between them, she never thinks it necessary to go and consult her neighbors, or a learned lawyer, or two, as to how she should make the division; not at all.  She takes the knife at once, and, in a business way draws the edge right through the center and the work, the allotment, is done.  There is no such thing as shamming, and fussing, and quibbling in the transaction.  Why should there be?

            Even so simple, and straightforward; is, or should be, the work of dividing our Cherokee lands among the rightful part-owners.  Yet to hear men talk about it--those men who want to make, and probably will make the distribution--one is almost induced to believe that it is one of the most complicated and incomprehensible pieces of business that was ever known among the affairs of this world.

            Take a common sense, practical view of the case.

            Here are a few acres of land--the number does not affect the principle--and a few men--the number here, too, is equally indifferent--who own the whole tract; and these owners have concluded to divide up, each taking a part equal in value to that of any other.  Hence there is nothing needed in the case but to make the calculation, and go at once about running the lines, and fixing the metes and bounds of individual shares.  But if to do this equitably should be found to be impracticable, then the next best thing to do would be to sell out he whole for all that it will bring, and distribute the proceeds among the common owners.

            These methods are prescribed by the counsels of simple reason; they are practical and lead to the most speedy, just and satisfactory solution of the whole problem.

            But the business is not to be allowed to run along to a conclusion in this oily way.  The proceedings are to be obtained at a multitude of points, and in a great many ways, to answer the demands of various individuals who have, by some means, got a notion that, in the general settlement of the estate, they have become entitled to some special advantage--some extra allowance over and above what may be due to the parties who make up the common mass of part owners.

            Here, for instance, are our town-lotters; a multitudinous class composed of our most respectable, intelligent, thrifty, and influential citizens, who have managed to get themselves into the occupancy of the valuable soil that lies under the foundation of all our large towns and villages; they imagine that they have acquired some special, and individual interest in the ground which they occupy as against all the rest of the Cherokee people.  Of course they will not be satisfied with any kind of allotment that will not concede to them the absolute ownership of what they call their "town property."  Hence it may be expected that any scheme of distribution which would propose to recognized the interest of our remote flint bill yeomanry1 in this valuable town property, will be likely to meet with a stout resistance on part of this powerful city population.  Hence there is and will be, a serious issue between our town people and our country people-which is destined badly to hinder and retard the work of adjustment.

            Again, here are what we call our "mineral leases."  How many of these leases are still existing in full force, is not generally known, the writer of this article does not know.  Nor is that material.  The thing about them which most concerns the people at large is this, or something like it: they give the leases exclusive control of large tracts upon the public domain, and for long periods of time, periods extending far beyond the day at which allotment will probably take place.  Now it is obvious that no allotment can be feasible without a conflict with the rights and privileges vested by those leases in the lessees.  These lessees, too, are in general, moneyed men, capitalists, men very powerful in politics, lobbies, and with-all, molders of legislation.  Here then is another issue between the poor people of this country and the more powerful class.  Suppose the allotment of lands should take place today, and suppose your lot should happen to fall upon the ground covered by one of these leases; how would you and the lessee get along with your conflicting titles?  The lessee would have the prior and paramount right of use and occupancy.  He could keep you out of your property for an indefinite number of years, perhaps for a long time after you have gone hence to your eternal home.

            Again, our national council has from time to time, granted to the various churches and missionary societies the right to use and occupy large tracts of very valuable land belonging to the public domain.  These church authorities have been in the occupation of these tracts for a long period of years, and upon some they have made valuable improvements; other portions however, are still lying, in a manner, unimproved, and seem to be simply held down as a claim against the final day of distribution.

            Now what disposition is to be made of these church claims will, for more reasons than one, constitute a very interesting verse in the general chapter of allotment.  What will these religious societies do?  Will they admit that these lands were only loaned to them for a time, and, when wanted again by the real owners, surrender them to be allotted along with the rest of the national estate?  Or will they adopt the argument of the common squatter and say that they have made valuable improvements and have by that means acquired impregnable equities in the soil?  And on the principle of taking an ell2 when only an inch is given claim that their title has ripened into an actual fee simple, or some other kind that may be sufficient to beat the Indians out of so much of their property?  Or will they adopt the plan which they are accustomed to pursue in other quarters of the civilized world in such cases that is to say, concede that the property is not their own until they have secured from the rightful owners a perfection of their title either by actual purchase, or solicitation?

            Railroad companies, more than one, commanding all the power represented by millions of dollars, constitute another important factor in the general problem of allotment.  Early after the late war, these corporations pushed a charter, or two, through the forms of legislation in congress which gives the company every odd section of land within a strip of twenty miles wide and extending across the entire width of the Cherokee country; this grant to take effect just as soon as the Cherokee national title ceases to exist.  These corporations, therefore, look upon the crisis of allotment not so much as a distribution among the Indians, but rather as the time when they are to come into the absolute ownership and possession of the lands in question; and that they will do all in their mighty power to shape the allotment according to this their own conception in the case, there can be no doubt.

            And yet there is still another cause of obstruction which will tend seriously to delay and hinder an early and easy solution of this our national problem.  There are men in our midst, not a few of them, who have for a long time in the past, been endeavoring to speculate in our public lands.  They have laid numerous claims upon the common domain, and upon many they have made valuable improvements; and all this with a view to entrenching themselves in defense of what they hope to successfully hold to themselves on the final day of allotment.  This too is a numerous, opulent, and influential class of people.  They are called monopolists.  It is not reasonable to suppose that they will be pleased with any scheme of allotment that will not conform to them their great and exorbitant holdings; it is not likely that they will very cordially approve and help along any scheme of allotment which will require them to part with a good portion of their contemplated estates for the benefit of the homeless classes.

            We see, then, the situation; with so many great and powerful individual interests striving to thrive and fatten on the aggregate estate, and first to be taken care of-town, lotters, mineral-leasers, churchers and missionary societies, railroad corporations and monopolists all to have a portion to be adjudged and set apart to them before the popular distribution can take place-two things are to be seriously feared: first, that it will be a long and tedious time before we see the end of this squabble; and secondly, that, when the end comes, the portion which each poor man will get, will be small indeed.

 

1 Flint bill yeomanry: A derogatory term used to refer to rural workers who were outspoken, often taking a hardline stance on an issue.   Back

2 Ell: an obsolete unit of measure used by tailors.  It was measured as the length of the arm from the shoulder to the wrist, usually 45 inches.  In Old English, ell meant arm.      Back  

 

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The Indian Chieftain

July 8, 1897

 

Our Status After January 1898

A General Dissertation of Cherokee Affairs Under the New Region

            Editor Chieftain:  The President’s signature1 being subscribed to that famous appropriation bill, the dreadful “rider,” with which it was mounted, is now a law; it goes into effect on the first day of January next.  That is the day of doom for our Cherokee courts.  Also after that date, our Cherokee legislation is to come under the supervision of the President of the United States2.

            When this measure was first broached, it was recommended upon the floors of Congress as a scheme which would be likely to goad up the delinquent Cherokees and drive them into an early agreement with the Dawes Commission.  Senator Berry3, of Arkansas, in debate upon the merits of the bill previous to its passage, said, “Mr. President, the proposition made by the senator from Tennessee (Mr. Bate)4 to knock out the provision which refers to the jurisdiction of the courts of the five civilized tribes was thoroughly debated during the last session of the last Congress.  If that provision is knocked out of the bill, I firmly believe that it will defeat all the efforts that have been so earnestly made for the last four years to bring about an agreement.  If that provision in the pending bill stands, I believe, and all those who are familiar with that country believe, that before another year has gone by, an agreement will be reached.”

            These words of the honorable senator are remarkable for two reasons at least:  They are, first so peculiarly suggestive of the ugly scenes of the prize ring; again, they are so thrillingly regardless of the ordinary claims of reason and justice.  The most friendly mind finds it difficult to concede to them that degree of respect to which they might otherwise be entitled by the exalted position from which they were uttered.  The bill was simply a proposition to commit the government to an act of bad faith with the Cherokees, and this, strange to say, (for so the reasoning goes) as an expedient for courting their confidence with a view to drawing them into new agreements, hazarding additional trusts.  Nothing imaginable in the nature of human conduct could be more absurd.  Of course the measure, regarded as a movement in the game of diplomacy, was a great blunder.  It was a serious mistake to imagine that the Cherokees could be brought to engage in any desired line of action more easily by means of unjust and pinching legislation than by fair and benign methods of dealing.

            The labors of the Dawes Commission in this country, during the first period of its mission, were rendered abortive mainly by the cool manner in which their appeals were addressed to the fears of the people, instead of their reason and sense of right.  But after it became reconstructed and began to shape its action according to the suggestion of more enlightened views, that honorable body found no difficulty in becoming immensely popular with the people.  In a diplomatic sense, they had well-nigh an absolute control of the field; and there was but little in the way to hinder them from bringing about at an early day, an accommodation to the entire satisfaction of the government.  But just at this auspicious moment the wiseacreism of Congress became irrepressible.  It had not discernment enough to see, or else it intentionally ignored, the practical difference between a compulsory inducement applied and acting from without, and a free rational motive prompting from within; and on the assumption that the Indians were, by nature, equally dull upon questions of manner and method; this bill was brought forward and pushed through the forms of legislation with the vain hope that it might act ulteriorly as a gentle lash to impel them along the highway of governmental desire.  But the results have proved to be quite the reverse of what they were expected to be.  The act was an infraction of plighted faith so ruthless as to shock the moral sensibilities of the people; they were appalled.  The effect was to destroy utterly their confidence in the promises of the government; it caused the most solemn engagements with the United States to assume, in their minds, the character of mere empty formalities, without sincerity and altogether delusive.  It thoroughly quenched the spirit of amicable negotiation.  They said, “it is of no use; if the agreements which we have already made are to be kicked out of the way just whenever it becomes inconvenient to observe them, it is not likely that we shall ever be able to make any that may attain to a better fate.  There is nothing that we can do, but simply to sit down and let the storm blow on as it pleases.”

            The result is, Uncle Sam5 has got a balky horse on his hands.  He is not a vicious animal; but he is very much discouraged, and consequently somewhat impracticable.  The best way to get along with him is simply to handle him gently, and give him a little time to rest and reflect upon the situation.

            But it is now no more a mere bill that we have to deal with, but an existing law.  We shall therefore devote the remainder of this article to a brief view of the new state of things that will be introduced on the first day of January next, when this act goes into effect.

            It is customary among the treaty men, (by that term we mean those who are urging an agreement with the Dawes Commission by simply accepting their terms without regard to the consequences) to preach and proclaim that act of Congress as a complete death-blow to our national life; that it has wiped us, as a nation, quite out of existence, or so nearly so, that there is not enough of our autonomy left to be worth the contending for; hence, the argument that, in order to regain the national life that we have lost, we should avail ourselves of the opportunity and effect the repeal of this destructive act by hastening into an arrangement with the Dawes men.  But when we get from these gentlemen the terms upon which this may be done, we find that there is no such thing as a restoration of national vitality in the scheme, for the commission demands that we shall surrender, by an agreement, all that the statute has wrested from us by force, and much more.  If an agreement should be had upon such conditions, well, indeed, might the statute be repealed and even thrown to the winds.

            But not to digress on this point; let us try to see what the statute has actually done for us.

            In the first place, it has abolished race distinction among the inhabitants of the territory and made all the laws in force therein, both of the United States and of Arkansas6, applicable to Indians as well as to white men.  These laws, especially those of the State of Arkansas , are very numerous and broad, completely covering all the fields of legislation that are usually embraced in the economy of a well ordered civil government.  Now, of course, wherever these Arkansas laws obtain, the Cherokee law is stifled out of existence; for no Indian law will be allowed to contest territory with federal law.  Hence, it seems that, for the future, there will be but little room left for the exercise of Cherokee legislation.  The chief business of the National Council will be to take care of our public schools and to regulate the use and occupancy of the public domain; there will be, however, in addition to this, a great many matters of minor importance to attend to, such as hearing and allowing claims, making appropriations, sending delegations to Washington, etc.

            The statute ordains, too, that for the future the President of the Untied States shall constitute a factor in our law-making machinery.  His office will be to assist the principal chief in the exercise of the veto power.  His approval will not be needed to put an enactment into force; that may be accomplished by the signature of the principal chief.  But in case the latter approve an act that should have been vetoed; or if passed over the head of the executive after veto; the President may then enter his objection and put an end to the measure.  If, however, an act be passed and certified to the President in due time, and he fail to enter his veto within thirty days from the date of its passage, it then goes into effect as valid legislation.

            But the most important innovation accomplished by the act, will be found to be the transfer of the jurisdiction of our Cherokee courts to the courts of the United States.  The words of the statute are these:  “The United States courts in said territory shall have original and exclusive jurisdiction and authority to try and determine all cases in law and equity – and all criminal cases, etc.”  This weeping provision leaves the Cherokee courts with nothing to do after the first of next January, but simply to finish up the business that may be before them on that date; then, after that, to dwell in an eternal state of peaceful rest for the want of something to do; they are not abolished.

            When the provisions of this bill shall come to be put into execution, there will doubtless arise some very curious and perhaps difficult questions to be determined by the courts.  There will be many points of conflict between our Cherokee laws and the Arkansas laws; it will not be practicable for the court to enforce both at the same time in the same case.  Will the Arkansas law prevail, because of its higher authority?  But the rights to be determined and the issue to be tried, have both originated under, and exist by virtue of the Cherokee law.  Take a case: an Indian dies, and leaves an estate, children, debtors and creditors.  Now by what law shall the inheritance be meted out to these heirs?  Which law shall prescribe the modus operandi for paying these debts, and collecting these claims?  Take another case; suppose the Cherokee government has a claim against one of her own Cherokee citizens?  She could formerly sue and recover in the Cherokee court; but that court is now non-existent.  Shall the Cherokee government sue in the United States court?  But the Cherokee nation has no standing in that court.  Is this an exception to the general rule, that “Where there is a wrong there is a remedy?”

            These numerous unfriendly features in the situation introduced by the operation of this new law are not at all out of accord with the avowed purpose of the act as a measure of coercion instead of benign legislation.

 

 

1William McKinley, (1843 - 1901): 25th President of the United States from 1897 to 1901.     Back

2The June 7, 1897 Act of Congress: This law required that all original offences committed by citizens of the Cherokee Nation on or after January 1, 1898, should be tried regardless of citizenship by the United States court; along with an Act of Congress approved June 28th, 1898, that abolished the Cherokee courts on and after July 1, 1898.    Back

3James H. Berry:   Berry was U. S. Senator Arkansas from 1885-1907.    Back

4William Brimage Bate(1826 - 1905): Bate was a member of the Tennessee House of Representatives from 1849 to 1851. He was also the Governor of Tennessee from 1883 to 1887 and a U. S. Senator from 1887 to 1905 where he served as the chairman of the Committee on the Improvement of the Mississippi River .    Back

5Uncle Sam: An image representing the United States.  The term apparently originated during the War of 1812 and was associated with an actual man, Sam Wilson, a supplier and inspector of military rations.    Back

6The 1890 Act: this federal law provided that the general laws of the United States that prohibit crimes and misdemeanors in any place within the sole and exclusive jurisdiction of the United States ‘shall have the same force and effect in the Indian Territory as elsewhere in the United States’ (Section 31, 26 Stat. 96).  The criminal laws of Arkansas (with certain exceptions) were extended to the Indian Territory for offenses not governed by federal law (Section 33, 26 Stat. 96-97).        Back   

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The Indian Chieftain

July 29, 1897

 

A Society Problem Essayed

Too-Qua-Stee Among the Tramps by Moonlight

            Editor Chieftain:  The day had closed most beautifully.  The moon was standing in full orb just over the eastern horizon, and was pouring down upon the earth a flood of mellow light which rendered the transition from day to night almost imperceptible.  The day had been intensely hot; but as the sun went down, a concourse of little zephyrs awoke and began to frolic about over the landscape carrying coolness, freshness and fragrance everywhere much to the relief and gratification of panting animal life.  It was a delightful evening to be out; the cool breezy, moonlit, open air of night – what a luxury!  What a temptation toward the pastoral modes of life!  To nomadism!  Day even to tramphood itself!  It is a wonder that all people, when plied by the charms of a rural moonlight evening like this, do not at once break away from their abodes of toil and become the itinerant devotees of pleasure; in other words, tramps and vagabonds.

            There was a distance before me of about two miles; and this had to made on foot.  My pathway too, tended southward, and lay along the raised track of the M. K. & T. Railroad.

            I had been on my jaunt for only a few moments, when I spied through the dusk a human form moving at a sweeping pace upon the same track, but in precisely the opposite direction.  It proved to be a man of middle age, medial stature, stalwart, well clothed, but covered with dust and evidently very tired.  He carried a staff across his shoulder and with his hand in front balanced upon it behind him a well packed wallet about the size of a full grown watermelon.

            We met, and I made as if to pass him, but as I cleared to his left, he whirled upon his heel after me and called out, “Say mister; do you live about here?”  “I do,” was my reply.  “Can you tell me where I can get a job?”  “You want to work, do you?”  “Yes; a man has to live; and there is no way to get along in this country only by hard work; but mister, it is mighty hard to get work to do.  Will you please give me a bit of tobacco?”

            As to that article, however, my pockets were naturally bankrupt; and the man’s pitiful request, as a matter of necessity, had to be denied.  But that did not hinder my desire to do what I could to help the poor fellow to the much coveted “job.”

            Accordingly, “It is harvest time now,” I began, “and hay time and the farmers–”  Just at that point the fellow broke off my good thought by rudely ejaculating, “How far is it, mister, to the next town?”  This was a clear give-away, I discovered that the rogue was looking after my tobacco instead of a “job.”  “The next town!”  “The next town!”  I said with sarcasm of affected surprise.  “Why, man, don’t you know there is no such a thing as a next town after Vinita?  Yes; there is Bluejacket; but that is not a good town for tramps.  The people there are kind o’ stuck up; they won’t feed vagabonds.  More than that, they keep bulldogs there.”  “That’s nothing,” said he giving his voice the deep resonance of defiance; “but up here in Kansas – what is the next town?”  “What!  Going to Kansas !” said I; “I pity you.  You’ll starve to death up there.  There is no town in Kansas worth speaking of.  Besides, they have women mayors up there, and women marshals; you would do better to stop at Bluejacket.  Don’t you know it: You are in the ‘Beautiful Indian Territory,’ the poor man’s paradise.  There is no town in the world equal to Vinita in good people and fair chances.  I would advise you to go back there, make yourself at home, and go to work like a man.”  “A-u-g-h!  Vinita!  I have been there three days, and couldn’t get a bite to eat, nor a lick of work to do.  Goodbye.”

            So saying, the fellow trudged off into the darkness, in pursuit of a destiny – who can predict?

            I walked on for a time curiously meditating upon the origin of tramps and those abnormal conditions of society which breed them; and I found that my heart began to develop within in it a kind of sympathy for these poor underlings of civilization, so much so that I felt a twinge of regret that I had allowed myself to trifle with what might have been the pitiable exigencies of the poor fellow that had just left me; at any rate, I determined for the future to be more considerate.

            Just then, and just ahead of me a short distance, again my attention was attracted through the thickening twilight by two other human forms; they were stationary.  One was sitting upon the end of a cross tie, each elbow resting upon its corresponding knee, while the expanded palms brought together above formed a resting place for his head; it looked very much like a head that was heavily burdened with pain and care; for tramps, after all, are human.  The other was lying near by flat on his back, straight up and down the embankment, a pipe in his mouth, and the fingers on both hands interlocked under the back of his head to serve the purpose of a pillow.  The one that sat erect was evidently a young man, out the drooping brim of his old hat effectually shielded his features from accurate inspection.  He seemed to be dull and inattentive.  But the man on his back lay squarely facing the east, and the beams of the full moon lit up his visage to a first rate advantage.  There seemed to be something noble in that man’s face as I studied it there by moonlight.  The gray of ripe experience was plainly visible upon his brow and chin.  A high and nobly arching forehead indicated an intellectual faculty of no inferior order.  His, eye, mouth, nose, and chin were all just such as we usually find associated with noble purposes, heroic actions, and glorious achievements.  What ill genius could it have been that sentenced this man to the career of a tramp?  It seemed odd indeed to find a man like that lying in his rags by the roadside in the abject condition of beggary.

            It was in my mind at first to pass this couple without having anything to say to them; but, the elderly gentleman accosted me in a manner so unusually engaging that I deemed it a pleasing privilege to change my purpose.

            “Sir,” said he, “do you reside in this vicinity?”  “I do, sir,” was my answer.  “Perhaps then you can tell us where we can find some profitable employment for a time,” he added.  “There is always an abundance of work to be done, sir,” said I.  “It is harvest time and hay time now; and the farmers are all wanting help.”  “But the wages they pay are small, entirely too small.  My business is bricklaying.”  “True,” said I; “but the farmers, as a general thing, have to work the year ‘round for much smaller wages, upon an average, than what they are today willing to pay you.”

            “You say you are a brick mason; and right there, I think, you craftsmen make the great mistake of your life.  You learn a trade and resolve to live by it; and in case it so prove that you cannot live by it, you determine to die by it.  When the products of your craft are no more wanted, you organize combinations to create a fictitious demand for them; or inaugurate mischievous strikes to compel your employers to pay you higher wages than your labor will properly command in the market; or else you cry out ‘Nothing to do’ and sit down in idleness.”

            “Now this is all wrong.  A trade is a good thing in its place; but when its practice ceases to pay, it should be abandoned for some other, more profitable calling.  The secret of success in this world consists, not in the mastery of a trade or a profession, but in the doing of those things which are helpful to others.  For instance, look at that field over across the way there; the owner may not want a brick wall built, but he would like well to have the weeds hoed out of that corn.  Can you hoe?”

            By this time the elderly gentleman began to show signs of uneasiness, and at the instance of this interrogatory, he drew himself up out of his supine position into a sitting posture, and smiting the ashes out of the bowl of his pipe into the palm of his hand, flung them on the grass at his feet.  I then deemed it time to take my leave; and as I withdrew, he growled after me, “Yes; all very fine talk; but I can’t fool away time in that way.”

            But now at a short distance ahead of me I see a small fire blazing in the gutter near the railroad track.  What can it mean?

            The query remained unsolved until I arrived upon the spot.  The fuel that fed this modest little flame had been filched from an old pine board fence that once ran along near by dividing the adjoining farm, from the right-of-way; and the author of the conflagration himself lay near at hand apparently sound asleep down in the grass.  “Hello, my friend,” I shouted; “What use can you have for a fire in such melting times as these?”  “Are you just trying to set the world to burning?” “O no,” said he; “I am only cooking my supper.”  But as there was nothing of a culinary nature visible about the premises, the explanation which I had elicited had the effect only to increase my curiosity.  “Supper!” said I; “I see no signs of supper.”  “Its there all the same,” the fellow replied good-naturedly.  “Potatoes in the ashes,” he added laconically.  “I bought a few potatoes as I came through town just a while ago, and I am roasting them for my supper.”

            This person had the appearance of a young man about eighteen years of age.  Now who is this, I inquired of myself mentally, so youthful, so comely, so gentle and manly in manner, that sleeps out at night upon the ground like a tired ox, and feeds upon crude, unseasoned tubers which even a hog, in the absence of compelling hunger, might disdain to taste?  Who is he?

            Prompted by no unworthy motive, I determined to draw from the boy’s own lips, if possible, something of his biography.  Taking my seat upon the ground by his side, said I, “My boy, you seem to be a stranger in these parts.”  “Yes,” said he, “I was never here before.”  “Where is your home?”  “I live in Indiana .”  “And where are you going? if I may be allowed to ask such a question.”  With some hesitation, he said, “Well sir, I am not sure that I know exactly where I am going; anywhere I reckon, where the hope of finding employment may lead me.”  A moment’s pause and then he added, “They call me a tramp; and I reckon I am.”  Here the seal upon his inner self seemed suddenly to give way, and a whole breastful of pathetic, personal experience gushed forth with a spontaneity which could have been inspired by nothing less than the most trusting of filial confidence.  Said he, “My father died when I was but a small boy.  My mother was left a widow; and I am her only child.  We, she and I, have always had to work hard; and last spring I determined to start out and find a place where we might have better opportunities.  It has been my purpose, if I could find ‘permanent employment anywhere, to send for my mother.  But if I fail in this, I shall return to her this fall; she knows where I am.”

            The rendering of this little narative was manifestly interrupted now and then by suppressed surges of emotion; and at the name of “mother,” a teardrop, flooding his eyeballs, sparkled in the yellow beams of the moon.

            Having heard his story, so artless, or so artful as to conceal all art, one could hardly feel otherwise than kindly toward the young fellow; and yet the only good thing to which I found myself able to help him, was a bit of what I conceived to be appropriate advice.

            Said I, “My young friend, you are making a mistake.  It is of no use to run about to find business; the true practice is to make it right on the ground where your lot happens to be cast.  Life is a battle which must be fought out on the ground where nature, in giving you birth, has placed you.  What would you think of a soldier who would break away from his appointed place in the line of battle and skip out behind an easy place to fight in?  When God makes a man and sits him down in this world, right there he also locates the work which he was made to perform.  Your work is in Indiana where you were born.  Under the circumstances, I think you had better go back there – to your mother; never desert her.  She is the best friend you have, or ever will have, in this world – and fight out the battle of life, like a true hero, on your own native soil.”

            So saying, I left him to enjoy his potatoes.

            The few remaining moments of my moonlight walk was employed upon reflections like this:  if four tramps be found sticking to the iron track of the M. K. & T. Railroad, at the same time, within the space of two miles, how many would it take to adorn the same way throughout the whole length of it?  How many would it take to bejewel in the same way all the railroads in the United States ?  This tramp pest is a fearful feature in our American civilization.  Who will ever be able to ascertain its real cause and secure its eradication?

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Indian Chieftain

August 26, 1897

Cherokee Protection

             Editor Chieftain: -- There is a very pertinent question running from lip to lip just now in every direction throughout the country, like this:  What are the Cherokees going to do?  What are they expecting?  They have gone back on the Dawes commission; what do they expect is going to be the outcome?

            A line of questions like these were propounded a few days ago to the writer by a prominent man of Kansas .  He was a very intelligent gentleman, but his intelligence unfortunately was too local and sectional, not to say bigoted, to entertain a just notion of anything outside of the conventional circle in which his powers of thought and reason had been trained from infancy.  He was a very fine sample of the great concourse of our white friends who live over in the states at a distance from us, who have never seen us personally, never talked with us, never eaten at our tables, never heard our side of the controversy between us and the government, who owe all they know of us to an Indian hating press.

            Well, I will tell exactly how I answered him; said I, "Why sir, I intend to do just what so many white men would do in our situation."  He significantly cocked up the outer corner of his left eyebrow and, looking askance at me, said, "how is that?"  "How is that?" said I; "don't you know what a white man is?  I do; I know him well.  He will stand for what he conceives to be his rights every time; and that is just what we Indians are going to do, or go down in trying.  Excepting the unfortunate color of our skin, hair and eyes, we mean, for the future, to be white men.  We have all come to think a good deal of that old eagle of Uncle Sam's; and we are going to claim in return protection under his magnificent wings; do you see?"  "Well, I don't see very clearly," said he.  "You talk singularly; don't you consider that you have been protected all along by the government?"  "Yes, yes," said I, "it is true, we have been nesting under the protecting feathers of Uncle Sam's eagle for the last hundred years; but somehow, or other, we have been losing ground all this time.  We Indians don't know how that is; we can't explain it.  All that we can tell about it is this:  Whereas a few years ago we were rich in lands and liberty; but now we have neither.  That word 'protection' in your English language has quite a number of variations in its meaning.  When you speak of protecting your home, your wife and your children, your meaning is well understood; you simply mean all hands must be off, and that too with no condition annexed.  Now that kind of protection we Indians have never had at the hands of the government, although it has been pledged us time and again.

            "But you have horses, cattle and hogs; you feed them and protect them in comfortable stalls and pastures, and make the poor creatures as happy as could be expected for a time; but the outcome!  What of that?  Why you eat them, ride them and drive them to death.  Just so the government had been dealing with us all along.  She has preserved us and kept us safe against outsiders, and has now and then poured out upon us floods of kindness; but when the time comes to utilize us and ours, or to dispose of us in anyway to promote her convenience, she comes to us and says, 'My red boys, you are fine fellows, but,' (in a political sense),'you are after all nothing; you are only "wards" of the nation.’ And then she proceeds to execute upon us her sovereign will, just as you would do at your hog-pen."  "My friend," said he, "you speak disrespectfully of the government."  "If what I have said is false." I replied, "it is truly disrespectful; and deserves rebuke.  But if it is true, what then?  Proceed, if you will, and convince me of error in a matter of fact; and when you have done it, I will cheerfully proclaim my repentance and call for mercy upon erring innocence.  But if what I say is true--a matter of unquestioned history--then I am clear, and the government must be accountable to herself for her own dishonor.  Did not our slaughter day come 'round during this last call session of congress?  What about that appropriation bill which, in violation of every principal of honor known in connection with human obligation, kicked our treaties out of the way and destroyed our tribal judiciary, and involved in that distruction the entire existence of our motion?"

            By this time my Kansas friend, who had fired up a little at the outset, became cool and considerate; he confessed he was not as well informed in reference to the real issue between the Indians and the government as he would like, or ought, to be.  He resumed then in a conciliary tone, "Well, truly, my friend, I ask for information; what course do you Cherokees intend to pursue in reference to this question?"  I laughed a little then, because it always does me good to see a white man gentle and considerate enough to act sensible when on the Indian question.

            "Well," said I, "if you ask in good faith about our troubles with the government, I shall be glad to give you all I know; for it is the very height of my desires to have every generous white man in God's universe to know exactly all the carryins on that are daily pushed forward to undermine the rights and well-being of these Indians.

            "'What are the Cherokees going to do?'  that is what you ask,"  said I; "well there is nothing under heavens that they can do without tripping the dead fall that is set to entrap them.  They would be glad to negotiate with the Dawes commission, were it possible to do so on the terms which they propose, without committing an egregious act of self destruction.  Let me tell you--you have little time, I suppose--well, let me tell you about the M., K. & T. railroad claim; I will give you the inside history of it; I would like to have you Kansas people know it well.

            "Well, in 1866, when the state of public affairs in this country was in a ferment, a set of speculators got around Uncle Sam and wormed out of him a grant of his reversionary claim upon about a million acres of land occupied and owned by the Cherokees and----"

            Just then that terrific old gong at Cobb's hotel turned loose, and that was the end of the matter.  My Kansas friend went off laughing with good natured threat to see me again, and I turned off to my own business as usual.

 

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Cherokee Advocate

September 9, 1897

 

Coming Senate Committee

What May Be Expected By the Real Indian

            Editor Chieftain:  It is said that three great, good men – a subcommittee, detailed from the Senate Indian Committee – Mr. Jones, of Arkansas, Mr. Platt, of Connecticut, and Mr. Mantle, of Nebraska, are coming out here in a few days to – well, we don’t know for what; they have not told us.  But some of our treaty men1 nod their heads and wink at us and tell us we had better be a lookin a little out, for these men are coming out here, this time, with fire in their eyes; that they are now mad at us, because we would not treat with the Dawes men2.  But it’s no use trying to scare folks.

            It has been said also that the purpose of their visit is simply to inquire into the true nature of the unhappy hitch between the Cherokee full bloods and the Dawes Commission.  And, if it be indeed true that such is their business, it is all right.  The full bloods will certainly accept with pleasure any fair opportunity to give an account of themselves.  Yes, let them come; their coming augurs well.

            Yet we realize full well the dangers that usually attend such a movement.  It is customary whenever a speculation is broached in Congress, in the way in which the Indian is likely to be an obstruction, to send out a commission of high character to collect and formulate the reasons for his abatement.

            Now it is noticeable that these men who are coming to see us, are by nature and circumstance, nowhere in touch with the poor people whose interests they are commissioned to look after.  They are all senators of the United States.  They are not philanthropists actuated by sentiments of humanity, but professional politicians who live by courting the fickle favor of constituencies.  They are not judicial magistrates coming sworn to see that the right is done, though the heavens fall, but as business agents of the business world behind them.  They are all men of the first order of intelligence, wealth and influence; they may, too, for aught we know, be men of some virtue.  Yet, after all, there is wanting in their very make-up the main element needed to qualify them for their pathetic mission, namely a proper “touch,” as we have said, with the poor people with whom they are to do.  They are men whose mental associations are formed in spheres of thought which the Indian’s reflections have never visited.  Their minds are habitually engrossed with such great schemes as the making of states, developing the resources of continents, belting the planet with the iron tracks of commerce, contriving for the world a medium of exchange, and clearing the way generally for the onward rolling of the great wheels of civilization.

            But what are all these great and glorious things to the poor full blood whose grim destiny is today glaring in upon him through the narrow portals of his little cabin home?  Nothing; nothing whatever.  Much, much more to me are the hens that cackle around my door yard, the pig that fattens in my pen, the cow that gives the milk for my wife and little children, than the Nicaragua canal3 linking oceans, or the Klondike mines of gold4 crazing the universe, or the presidency of the United States holding all Europe down upon the knee of reverence; and the public policy, however grand, specious, or sacred may be the pretext for its action, that will deliberately wrest from me these humble elements of my wellbeing, I must needs contemn and despise as long as I live; and in thus expressing myself, I feel sure that I am but giving literal utterance to the heart-felt sentiment of every full blood Cherokee in this nation.

            But the whole of the trouble does not lie exclusively here.  It is a fact much to be deplored that there are not a few of our own native statesmen who belong to that same very highly civilized, intelligent, cultured, progressive kind of humanity of which we have just been speaking; men who have been to school in one way or another, and have been educated out of “touch” with the poor, down-trodden tribesmen from whom they themselves originally sprang.  They are genuine proselytes to the true faith of the white men.  They are ready ever to fall in line and march right along with civilization without a question as to the moral nature of the banner under which they are moving.

            These men too, a la mode, have their minds filled with great things.  They can talk very handsomely about the needed “change in the order of things” in this territory; the vast resources of the country, the ultimate validity of mineral leases, the importance of founding and building cities for the people to live in, the transcendent sacredness of invested capital and its “acquired equities,” and the very flattering prospects for a few fat and famous positions to which our Indian Territory will soon, as a State in the Union, be entitled in the Congress of the United States.

            These are the men, too, who are always foremost to meet accredited commissions at the threshold of our nation.  They cheekily monopolize diplomatic attention, and by pulling themselves into the front of affairs, manage to shape negotiations to suit their own selfish purposes.

            We all know how it will be worked.  When that honorable commission enters this country, it will doubtless be at a puncture of some one of the railroads.  They will come in upon a flying car; they will glance along on the iron track in disdain of time and distance.  They will make short stops at our biggest and brightest cities.  Here amid the blaze of wealth, and the exciting ferment of speculative and political ambition, they will be surrounded and taken in by a mixed crowd of self-seekers who will engross their time and attention upon such topics as the magnificent, yet undeveloped resources of this new country, its glorious future as the coming land of milk and honey, all, however, held in miserable abeyance simply by a silly, maudlin respect for what is called “the Indian’s treaty rights.”  They will go on to detail, in terms of touching pathos, a statement of the stupendous sums of money which they have so patriotically and innocently invested upon Indian soil, and how cruel and inequitable it would now be, if they should be disallowed to become, on nominal terms, the absolute owners of the ground which they have occupied, as a mete compensation for their self-sacrifice in the great service of civilization.  These tribal governments, too, are to be passed under review in the same touching way; they have proved failures.  Life and property are not safe under Indian laws.  Hence the Indian, his laws, his institutions, his treaties, and his rights under them, should all be put away, in order to make room for the introduction of “a better order of things.”

            Such is the diplomatic atmosphere in which our so-called Indian treaties are generally cooked up and concluded.

            But where, now, in the meantime, is the poor full blood, the real lord of the soil?  He is nowhere to be seen, or heard of in this great, elegant, and exiting ball-play of mixed speculation and diplomacy.  He is effectually cut off by natural barriers from taking a hand in the game.  He is neither catcher, pitcher, batter, runner, nor umpire; and yet he is the same quiet, mouth less fellow that is always expected to put up the stake, and to pay the expenses of the tournament.

            In the first place, the full blood is a bird that generally dwells apart in the retired nooks of the country; he seldom makes his appearance about the great cities and towns, those fatal precincts at which the destiny of his nation is commonly manipulated; and, again, if he were present, he could not understand the language in the terms of which his fate is being couched by the subtle machinery of negotiation.  It is true, that in such cases, interpretation is generously allowed; but, after all, the best end that this happy device is able to serve, is but little more than to inform the ill-starred full blood of the final results of the deliberations in which he could have no appreciable participation.  But in this article, as usual, is getting too long without saying the half of all upon this subject that is really demanding utterance.  However, in closing let us express a hope for better things in the future.  The full bloods are right; their reasoning is unanswerable; indeed no answer has ever been suggested, save that of brute-force.  They are right; and what is more, all men, of every class and blood, who know the nature of the issue, and are unbiased by selfish ends, are with them in their contention.  The honorable commission that is expected soon to call upon us is another, and a new move in the solution of our territorial problem.

            Let us pray that they may come to us, not as to livestock to be disposed of, but as to men to be dealt with in the spirit of fairness.  Let us hope that they may be pleased to retract the ruthless ultimata which have been propounded to us and, relegating claims, claimants, and jobbers of every name and nature to the rear, or somewhere else out of sight, clear up the track of negotiation in such a way as will challenge the common sense of the Indian and enable him to see the nature of the ground upon which he is required to tread.

1Treaty men: Each Indian nation had its own committee for dealing with the Dawes Commission.      Back

2Dawes Commission: Authorized March 3, 1893 under a rider to an Indian Office appropriation bill and chaired by Henry L. Dawes.  Its purpose was to convince the Five Civilized Tribes to cede their tribal lands through individual plots over to each member signed up on the National Registry or roll under the General Allotment Act of 1887, also known as the Dawes Act.  Individual plots could then be easily purchased from Native Americans for white expansion, and "surplus" land could be opened to white settlement.        Back

3Nicaragua Canal: A project first proposed by U.S. Secretary of State Henry Clay in 1826 for the purpose of shortening the water distance between San Francisco and New York while increasing global trade and commerce. The Panama Canal was dug instead.      Back

4Klondike mines of gold: Gold was first discovered in the Klondike, Yukon Territory, Canada, in 1896 and created a worldwide gold rush fever.       Back

 

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The Indian Chieftain

September 16, 1897

 

History Repeats Itself

How the Cherokees met the Proposition to give up Their Land 75 Years Ago

            Editor Chieftain:  I send you herewith an ancient document found among the recorded doings of our Cherokee forefathers something like a hundred years ago.  It is so truly apropos, that it cannot fail to be regarded by the friends of your excellent paper as a very acceptable bit of reading.

            It is indeed refreshing to have a chance now and then to look back through, and out of, the malarial atmosphere of these degenerate days and contemplate the consummate courage and manliness of spirit that characterized our statesmen of former days.  Think of such a man as that incorruptible, heroic, unflinching old lover of his country and race, Head Chief Pathkiller, using such a miserable argument as “a half loaf is better than no loaf” as an apology for selling out his country!  When asked by Congress to give up his “dirt” just to gratify the cupidity of Georgia he said, “No.”  And didn’t he say right?  Didn’t he have a right to say so?  The land was his and then there was no power in the universe that had any right, moral or legal, to take it from him.  He had the courage too of a true man; the courage to stand by his rights.  We need that kind of men today.  One particular reason assigned by those old patriots for not wanting to treat their land away was that they wanted to keep it for the use of their “posterity;” not the children of A, B, or C.  But the nation’s posterity – us chaps that compose the so-called Cherokee nation of today.  How different that noble sentiment from the spirit of that wretched watch-word of these modern times, “give me my share and let posterity take care of itself!”

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The Indian Chieftain

October 7, 1897

 

The Cherokee Agreement

The Document Carefully Considered

Loop-holes for Speculation Pointed Out by a Correspondent – No Protection From the Railroad Grant.

            The Creek agreement resembles the Choctaw agreement so much that they might well be taken to have been born of the same parentage.  Like the Choctaw agreement, it makes the amplest provisions possible for carrying out the town site speculation, and it also guards nicely the railroad grant .  It is amazingly curious that, in a document of such gravity, there should be found so little to reflect credit upon the common sense and patriotism of the one, and the Christian candor of the other, of the two contracting parties.

            To begin with, this town site business, from beginning to end, is a gigantic steal; and it is not that, it is downright robbery.  It has a bad origin.  Its lineage is very short; it was never heard of in this country until just a few years ago when capital, under the inspiration of greed, mounted the saddle and began a war of plunder upon poverty and honest labor; when trusts, combines, corners, and corporations hit upon the happy idea of making slaves of all poor people, and rope is the civil government as a useful adjunct in the execution of their diabolical scheme.

            Cities and towns, in eras of honesty and freedom, found themselves.  There is no city or town in the United States , over ten years of age, but came into existence just in this way.  It is no part of the function of civil government to hunt up sites and build cities for the people to live in.  Cities are the results of commerce and population.  In the days of the Harrods, Alexander the Great, and the Caesars, when the people were all slaves, when population and the currents of commerce were all manipulated to suit the caprice of the monarch, then it was that cities were located, built, and named by the government.  A return to this kind of administration in the afternoon of the nineteenth century indicates incipient disease in our glorious true liberty; something rotten somewhere.

            If the government of the United States deems it expedient to lay off her own soil in town sites and go into building cities on speculation, there is no reasonable cause for invidious criticism; for the capital she proposes to use is all her own; she has a right to do what she pleases with it.  But that she should require such a thing to be done here among these Indians, where the land taken for the purpose belongs to the poor people of the country, is an invasion of private rights too fla grant to have the endorsement of any sound mind.

            A town site commission is to be appointed to select the ground and lay off the foundations of the cities.  The precaution to be taken, in order to secure an honest commissioner on part of the nation, is truly laughable.  He has to be a man “who is not interested in town property, other than his home;” just as though a man with one house in town, when seated in his place on the commission, would not have just as great a temptation and just as great an opportunity and motive for being dishonest as the man who has a dozen houses.  The other member of the commission is to be “an officer of the United States ;” that is all.  Just as though official position is a reliable guarantee against crookedness in dealing with and among Indians.  We had lately some experience in that direction in the case of one Mr. Dixon out here.  There are no pains and penalties whatever provided for the purpose of securing straight conduct on part of these commissioners.

            But there is one good thing about it; there is a check provided which limits the discretion of these commissioners as to the actual amount of land they are to set apart for town sites:

1.         No site is to contain more than four square miles; very well.  And, if they please, they need not make any of them less than that, whether it be possible ever to build a town there or not.

2.         These towns, too, are “to be restricted to their present limits, where towns are now located.”  Very good.  But this regulation need not be observed any further than the commission shall deem to be “possible.”  Hence, the commissioners are to have it in their power, should they see fit to do so, to lay off half the territory in town sites and put the lots on the market.

3.         The owners of these town lots are to “have the right to buy the same at fifty per centum of their appraised value.”  Now some of these lots are worth ten thousand dollars.  This scheme, then, in all such cases, will give these favored purchasers $5,000 of the poor people’s property for every one of the many lots of this value and the only apology which is offered for this kind of robbery, is the simple fact that these same purchasers jumped these lots some time ago and held the people off of them.  This is a piece of injustice so defiant of reason that the English language can hardly find for it terms of adequate denunciation.  Again, if these favored moneyed men in the towns are allowed to buy off and segregate their lots from the common tribal property before the allotment takes place, tell us then, if you can, why may not the country people be allowed to buy off and segregate their farms in the same way?  There is no way to explain the inconsistency in this provision of the agreement except upon the assumption that the commissions, on both sides, are in league with capital; have made up their minds to deliberately fleece the common people of their rights in the interest of avarice.

4.         All vacant lots in towns now existing, and in all new town sites that the commission may see fit to lay off, are virtually set apart as capital for speculation; and these town commissioners are to be the speculators.  The commissioners are constituted the guardians of the towns and the captain generals of the nation, setting aside the national council, and all other constituted authorities of the nation as something that for the future have nothing more to do with the public weal.  These lots are to “be sold by the commission from time to time at public auction, after proper advertisement, as may seem for the best interest of the nation and the proper development of the town.”  This provision, as you must see, invests this United States officer and this select citizen not only with legislative power to determine what is, and what is not, for the best interest of the nation, but also with autocratic power over the only great property interest of the country. The policy and “the proper development of towns,” after the people have built them, are generally in the hands of the legislature.  But this reckless treaty puts all this in the hands of two select men.  Nothing on earth can be more improvident and abused.

5.         But what is to become of the money for which these town lots are to be sold?  That is to be paid into the treasury of the United States .  And what is to become of it then?  Well, it is to remain there to the credit of the nation.  Ah! Yes; that is the grind.  While this money is lying there in reserve for a future generation the poor people of the present generation, to whom it rightfully belongs, are just as far from it as if it had been dropped down at once into the pocket of speculation.  The people will never see a dollar of it.  We know full well the career that Indian money runs when it leaves the treasury of the United States .  It generally goes but in the form of mammoth lawyers’ fees, gigantic lobby fees, ten-horse delegation expenses, fictitious claims of overwhelming size, together with a vast variety of stealages too numerous to mention.  No prudent Indian (unless he is in for a speculation of some kind) will ever consent to the conversion of a single inch of the common soil into cash, unless the money is to come at once into his own hands and without the intervention of a troop of pragmatical middlemen of any kind.

            The agreement provides for title, in case of allotment: the Creek Nation is to quitclaim all her interest in the allotment to the allottee; now that is good, business-like work, as far as it goes.  But the United States owns, or at least claims, an interest in all these Indian lands.  Now, before the allottee’s title can be complete, this claim of the United States must also be transferred to the allottee.  For this purpose the agreement provides that the United States shall relinquish all her interest in this allotted land to the allottee.  Now, this done, the title of the allottee would ordinarily be complete, and all that could be desired.

            But there is a state of facts existing right here that we have not, as yet, taken into account.  There are a good deal of these lands in which the United States neither owns nor claims any interest whatever and has nothing in them to relinquish.  And all this is true just because, in 1800, she sold and relinquished her interest to the M. K. & T. Railroad Company.  Now, it is obvious that before the allottee’s title can be perfect, he will have to get the railroad company to relinquish to him (the allottee.)  But the railroad company says it will not do it. 

            Now, whether the Creek commissioners know all this and properly appreciate the legal effect of these facts, may be somewhat uncertain; it is certain however, that they have allowed themselves to be led along into this negotiation as mere passive instruments and as though they had no special care as to which way they drifted.  But the Dawes Commission understood it all right well.  They knew that no patent executed by the Creek Nation and the United States could give good title to the allottee on those lands that are covered by the railroad claim.  But what do they do?  Do they go to work, and in a true business way, extinguish this railroad claim and get it out of the way and thus make it feasible in law for the Creek Nation and the United States to give good title?  No, nothing of that kind.  They knew that the railroad company would not surrender; and that a good title in that case was out of the question.  Hence, they simply attempt to jump over the difficulty instead of getting it out of the way.  And the manner they attempt to make this jump is something but little better than a willful shame.  Hear their words: “The Secretary of the Interior of the United States shall annex to said patent his certificate which shall be operative as a relinquishment of all right, title, and interest of the United States in and to the land conveyed by said patent, and as a guaranty of the United States of title to, possession of, the land conveyed.”

            Now, this is all mere delusion.

            First.  In the first place, the United States has no “right, title, and interest” in these lands to “relinquish.”  Hence, these words are all nothing but pompous nonsense and good for nothing but to throw the poor Indian’s mind off its guard and disarm his common sense.

            Second.  Again, this so-called “guaranty of the United States of title and possession” is delusive to the unprofessional mind of the poor Indian.  It deceives him into a vain hope that the United States , in case the railroad company should come and kick him out of possession, will send out a band of soldiers and with the strong arm of executive power defend him against the wrong.  But this is never to be the case.  The United States was never known to lift an executive finger in defense of an Indian in contravention of the usual provisions of abstract law; and she never will do it.  The United States having no claim upon the land, her “guaranty” can have no tendency whatever to improve and strengthen [unintelligible] the allottee; the [unintelligible] weak and insufficient, needs remain so, guaranty or no guaranty.  In a contention between the railroad company and the allottee in a court of law about the possession of this land, the latter will plead and rely upon his guaranty from the United States, but the former will plead and rely upon a former and much older guaranty from the same power; and it requires but a very small grain of common sense to see and know which one of these guaranties will prevail.

            Now, the Dawes Commission sees and knows all this; why do they not frankly admit the facts and their legal effect, and tell these Indians plainly that the railroad company is, in fact, going to get all these lands in the end, and then stipulate accordingly.  Why not go at this work in an open, honest, manly way?  What is the use to keep running and dodging around the bushes of cunning diplomacy?  Let all this delusive stuff about guarantying title and possession be blown at once to the winds where it ought to go and provide in the agreement, in plain terms, that the Indians are to expect nothing but a moneyed indemnity for the loss of their homes.  The honor of the United States cannot afford to be insincere in dealing with these people.  They should be allowed to see the end from the beginning – that under the agreement, as it now stands, the railroad company is to have the land, and the homeless Indian is to take his place in the ranks of American tramphood.

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The Indian Chieftain

October 28, 1897

The Delaware Claim.

An Elaborate Explanation of its Provisions by a Gentleman of Understanding.

            Editor Chieftain:--These are three different ways devised by the treaty of 1866 in which friendly tribes may be introduced and settled in the Cherokee country.  The first way, in the language of the treaty itself, is this:

            "The United States may settle friendly Indians in any part of the Cherokee country west of 96 degrees1, to be taken in a compact form in quantity not exceeding one hundred and sixty acres for each member of each of said tribes thus to be settled; the boundaries of each said district to be distinctly marked, and the land conveyed in fee simple to each of said tribes to be held in common, or by their members in severalty as the United Sates may decide."

            This is one way; plain, it is, and easy to be understood.  The tribes thus settled become the owners of the land which they occupy; they retain their tribal organizations, and are separate from, and independent of, the Cherokees.

            Now for the second method; let the treaty speak again:

            "The United States may settle any civilized Indians, friendly to the Cherokees and adjacent tribes, within the Cherokee country on unoccupied lands east of 96 degrees, etc.

            "Should any such tribe, or any Indians settling in said country abandon their tribal organization, there being first paid into the Cherokee national fund a sum of money which shall sustain the same proportion to the then existing national fund that the number of Indians sustain to the whole number of Cherokees then residing in the Cherokee country, they shall be incorporated into and ever after remain a part of the Cherokee nation, on equal terms in every respect with native citizens."

            This was the scheme upon which the Shawnees came in; they had nothing to say about what land, or how much, they were to occupy.  They abandoned their tribal organization, dispersed and mixed up with the Cherokees.  They determined to take their chances with the people of their adoption.  Hence when allotment comes, they get something or nothing, just according as it may prove to be with the Cherokees.

            That, now, is the second way; as to the third plan, let the treaty speak again:

            "And should any such tribe, thus settling in said country, decide to preserve their tribal organizations, and to maintain their tribal laws, customs and usages, not inconsistent with the constitution and laws of the Cherokee nation, they shall have a district of country set off for their use by metes and bounds equal to one hundred and sixty acres, if they should so decide, for each man, woman and child of said tribe, and shall pay for the same into the national fund such price as may be agreed upon by them and the Cherokee nation.

            "And said tribe thus settled shall also pay into the national fund a sum of money, to be agreed upon by the respective parties," etc, (on the same principle as above shown to have been observed by the Shawnees in making their payment) "and thence afterwards they shall enjoy all the rights of native Cherokees."

            This was the form of adoption selected by the Delawares for becoming citizens of the Cherokee nation.  They saw fit "to preserve their tribal organization and to maintain their tribal laws, customs, and usages”; they chose to “have a district set off for their use by metes and bounds, equal to one hundred and sixty acres for each man, woman, and child of their tribe.”  They have also paid for the same into the national fund such price as was agreed upon between themselves and the Cherokees.”  They have, too, paid out of their Delaware common fund, into the Cherokee national fund, their proportional amount, just as the Shawnees have done.  This latter sum pays for their citizenship.

            But what has, and what has not, been actually done by the contracting parties, (the Cherokee nation and the Delawares) to this compact, do not concern us now; we are at present only talking about the legal aspects of the question; what should have been done, can be done, and what will, if law is to be observed, be done in the final settlement of the Delaware claim controversy; that is what we are now considering.

            The treaty contemplates that tribes coming into the Cherokee country on the plan adopted by the Delawares, shall take the land set apart for their use, in a compact form; it is to be a district marked off by metes and bounds.  This district, too, is to be just large enough to give each member of the tribe 160 acres apiece, and no more.  The tribe, and every member of it, are expected to live within the limits of this district and nowhere else in the Cherokee nation.  They are to have no right to lay a claim anywhere upon the common domain outside of this appointed district.

            It is true, the treaty says, “they shall enjoy all the rights of native Cherokees.”  But this right does not necessarily give a party the privilege of laying a claim, as large as he pleases, and anywhere he pleases, upon the common lands of the nation.  He can by contract divest himself of this right; he can bargain it away.  If a native Cherokee citizen should enter into a fair contract with the Cherokee nation, that he will, for certain valuable considerations, relinquish his right to the common use of the public domain and limit his rights to the exclusive use of a particular tract, there can be no doubt but that it would be a binding agreement; he would be bound to live on his own tract, and nowhere else.

            Now this is precisely the nature of the contract with the Cherokee nation and the Delawares, with one little exception; in the case of a native citizen, in a contract of this kind, it would be necessary for him to relinquish his former right of common use in the soil; but as the Delawares never had any prior right of common use in the soil, a relinquishment of that kind on their part was not needed.  They simply contracted for a small piece of a bigger body of property in which they formerly had no interest whatever, and they can not be expected to take anymore than they bargained for.

            When it is said that a party “shall enjoy all the rights of native Cherokees” of course the right to limit his enjoyment in the common lands of the nation, just as a native Cherokee could do, must be included; and if he actually puts that right into execution, and by agreement consents to a restriction upon his of right of soil, he will, of course, have to stand by his bargain; just as a native Cherokee would have to do.

            The Delawares agreed for 160 acres apiece; and shall they now be allowed to take more?  The Shawnees did not, in their agreement, specify the amount of land they were to have; hence they share with native Cherokees, take and take alike.

            We know the conclusion at which we have here arrived is quite at variance with that of the supreme court of the United States in the celebrated Delaware case; but we can not help that.  It is very obvious that that decision is not based upon the law of the case.  It is as wide of the spirit and meaning of the treaty of 1866, and the understanding between the contracting parties, as the East is from the West.  It is doubtful if that honorable court ever grasped the correct idea of the true scheme upon which the Delawares were introduced into the Cherokee country.

            In conclusion, let us glance a little further at the nature of this scheme of admission to citizenship.

            The Delawares were to have a district set off to them by metes and bounds, within this district, they were authorized to maintain their ancient tribal organization; they were to live as a distinct community located in their own district,  and there to enforce their ancient tribal laws, customs, and usages; under the terms of the treaty and the contract.  They were empowered to enact and enforce any new law that would not conflict with the laws and constitution of the Cherokee nation.  They could, within their community, adopt such police regulations as they might see fit, enact laws, civil and criminal, levy and collect taxes, maintain public highways; in a word, they were to be, to all intents and purposes, a distinct municipality holding a relation to the Cherokee government very much like that of a county to the state.

            But the supreme court in deciding the Delaware case does not seem to have thought of this phase of the case; they seem to treat the case as though it stood upon the same footing with that of the Shawnees; hence they come to the conclusion that the rights of the Shawnees and Delawares are identically the same in quantity and quality; whereas they are, in all respects, very different.

            Now the Delawares paid the Cherokees as many dollars as there were to be quarter-sections of land in this segregated district.  What did they pay this sum for?  Suppose we adopt the theory of Mr. Adams2, and say it was for the fee simple title to these quarter-sections of land; then we ask, what did they pay the Cherokees for all those exceptional and very valuable political rights and privileges which we have just above enumerated?  According to Mr. A.’s view, they pay nothing; the right of self-government, he would claim to be to them, a free gift on part of the Cherokee nation.  The better view, however, would be, we think, to regard the proportional sum paid by the Delawares into the Cherokee fund as the price of the former’s citizenship, and this sum, measured by the number of acres in their segregated district, as the consideration for the many sweeping civil and political franchises which they secured form the Cherokees under the compact.

            It is no argument against his view to say that the Delawares have not availed themselves of these franchises; what is done, or not done, by the Delawares after the contract was made, has nothing to do with the rights of the parties under it; and it is the latter thing that we are now talking about.

 

1 96 degrees: The 96th longitudinal meridian runs north to south marking the western border of the Cherokee Nation in Indian Territory; it also marked the boundary of the Cherokee Nation proper and the Cherokee Outlet.      Back 

2 Dick Adams: Richard Calmit Adams, a Delaware who lived in the Cherokee Nation, represented his tribe in Washington D. C. for many years.       Back

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The Indian Chieftain

November 25, 1897

The Citadel Invaded.

The Government Surveyors at Tahlequah.

"Too-Qua-Stee" Witnesses an Incident in the March of Civilization Recalling an Event in the Old Nation.

Editor Chieftain:--It is frequently said, and apparently with a good deal of truth, that "history repeats itself."  Last Tuesday, as I stood upon the capitol grounds in the town of Tahlequah , I witnessed what seemed to be a very interesting verification of this old saying.

            The national council had just convened in annual session, and a mixed multitude of interested citizens had come in from all parts of the nation and were assembled about the capitol to witness the opening of the two new houses of the legislature.  The aggregate personnel of the occasion presented an appearance unusually Indian; for the contest in the late campaign, owing to the peculiar nature of the issue involved, had resulted in a pretty general defeat of the white constituency, and the return of representation taken almost exclusively from the fullblood class.  The same causes, too, that had brought about this radical change in the complexion of the two houses, has also awakened in the minds of the rural classes, particularly the fullbloods, some feeling of anxiety in reference to the way in which their public affairs were being managed at the seat of government; and many of them, leaving their homes in this country, had repaired to the capital hoping to see, or hear, something that might either quell, or confirm, apprehension.

            The convention was such as to remind the observer very forcibly of those old days of gold when, in the public councils of the nation, youth was required to sit and receive lessons of wisdom at the feet of age; when incompetency and want of moral worth, were at a discount; and when patriotism and experience were allowed to direct the affairs of state.  Indeed, it seemed to be a repetition, by no means inexact, of that memorable meeting of the Cherokee people which had been convened, something more than a half century before, at Red Clay, the old council ground of former generations, away in the east, beyond the Mississippi, where, it will be remembered, the Cherokees were caught under the “drop” of General Scott’s musketry and compelled to subscribe to the so-called treaty of 1897.

            The state of Georgia had enacted a law abolishing the Cherokee government--an example which the United States is proposing now literally to imitate; surveying parties, just as now, were strolling up and down the country laying off the Indians’ lands into sections and quarter-sections; and commissioners of the United States, too, just as now, were on hand soliciting, or rather demanding, of the Cherokees their assent to an arrangement by which they were to surrender their old homes into the hands of the white people and betake themselves to new ones in the remote west.

            Last Tuesday, the second day of the session, a little incident occurred in the open air which illustrated this strange rotary tendency in the current of human affairs in a way which excited a good deal of romantic interest.

            The day was all that the most ardent devotee of pleasure could reasonably demand of the skies; it was one of those silvery, twelve hour, gems of light that come, now and then, floating along down the cloudy current of time to cheer the gloomy earth and give the world a brief season of song.  It was among the very earliest days of the winter; the frost had not yet touched the summer green of  the trees that stood hovering about the solemn, brown walls of the capitol; and the mellow autumnal day--beams were falling aslant into the intervals, adorning the surface of the grassy common with countless fantastical figures curiously wrought out in the intangible tracery of sunlight and shade.

            Here the people were all assembled about one o’clock, p. m., intent for the moment upon nothing more than merely the consumption of a little surplus time; for at two, the machinery of the national council was expected to go into initial operation, and all were simply waiting to witness the event.  Some sat sucking at their cigars, and sending of the smoke curling into the bright pure air; some lounged at length upon the shaded grass; some were lodging upright and restfully against the trees, fences and walls; while by far the greater portion of the crowd stood here and there grouped into bunches of from two to a half dozen, or more, in  number, and all quietly and earnestly engaged in a friendly discussion (doubtless) of some phase of the great crisis which is just now so darkly overshadowing the country.

            But now, just in the midst of this quiet scene of social relaxation, there came to be heard a strange kind of tapping, and picking on the basal stone of one of the back windows of the capitol building.  The effect of this unwonted sound, so much out of time and place, upon the aspect of the assembly was truly electric.  At once the crowd arose and rolled off en masse, like a great water-wave, in the direction of the little phenomenon, while the curious inquiry, “What is it?” shone out plainly upon the features of every face in the great throng.  And sure enough, what was it?  It proved to be simply this:

            Three young white men, in leggings up to their knees, stalwart, dusty and weather-beaten--a small detail from the United States survey corps--in running a section line up from the south, had struck the southern boundary of the town plot of Tahlequah, and following the bead of their little telescope, had pushed their mystic demarcation right through the massive walls of the city, traversing elegantly furnished parlors, bedrooms, dining halls and wardrobes; and on through everything, however solid and sacred, that came in the way, until it reached the masonry of the capitol; and all this had been accomplished quite unbeknown to anybody and without awakening the least manifestation of public attention.  So quietly works the finger of destiny among the children of men!

            These boys (they seemed to be only striplings) had stopped here for only a short time in order to engrave upon the stone window sill of the capitol the seal of finish of their work up to that point; that was all.  This little job completed, on they went, carrying their line through the heart of the nation’s proud capitol, through the treasury chamber, through the great iron safe, and the dark vaults wherein lies the untold wealth of the republic, and on through the north wall of the building, and out again into the open air, and on toward the north star, driving through thickets, threading forests, climbing mountains, scaling primeval cliffs, turning neither to the right nor the left, and on, and on, to where?  And echo answers where?

            The social manifestation that came into view during the currency of this little episode, furnished material for some very curious reflection.

            When these same fellows, or some very much like them, came dragging their little chain along over our lands in the state of Georgia, the Cherokees were by no means so proficient in the art of practical prudence as they have since come to be.  Then, when the proprietor saw the survey company nearing his premises, he hesitated not to step out, meet them, and, in the spirit of a true son of the forest, forbid them from entering, or crossing; and in many instances offered genuine resistance; but, to the Georgian militia who never relished anything better than a plausible pretext for “getting away with an Indian,” these madcap adventures were only regarded as occasions of exquisite fun.  These recusant characters were instantly snatched up, handcuffed and carried off down to Gainesville and there locked up in the iron jail.  Then there was only one way by which these offending Indians could get out of prison; and of that they could avail themselves at any moment they might see fit to do so: namely, by giving satisfactory pledges that they would go, as soon as released to the enrolling office, and there “enroll” for immigration; and then be off for “Arkansaw” in the shortest practicable time.

            Quite different from this was the way in which the Cherokees met Uncle Sam’s survey boys last Tuesday.  As the little blue-eyed fellow, not much bigger than a monkey, sat up in the great window pecking away at his little device of practical science, it was curious to notice with what slight attention he regarded the great concourse of noble manhood that crowded around him.  They were all Indians, prevailingly fullblooded.  They spoke not a word to the little man; nor to each other, except in a whisper, or the subdued tones of deep thoughtfulness.  It was a funeral scene; all, (each consciously or unconsciously;) regarded the occasion as only one step in the ceremonial incident to the burial of Cherokee nationality. Nov. 15, 1897.

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Indian Chieftain  

December 2, 1897

Who Holds our Lands,

The Cherokee Nation, Not the People, Says the Supreme Court.

This Unexpected Result Declared to Have Been Brought About by the Adoption of a Constitution.

            Editor Chieftain:--Why the dealings of the United States government with the Cherokee people should have always been so uniformly questionable in a point of principle, is a matter which, to minds of ordinary discernment, is not easy to be understood.  Whatever law has had to be enacted, or decision to be made, or treaty to be concluded, in which the Cherokees have been concerned, they have, in almost every instance, been enormously beaten.  In congress, they have been made the victims of exorbitant selfish policies; in the courts of law, issues have generally been resolved to their prejudice; in treaty conventions, institutions which they have always heartily abhorred, they have been browbeaten and inchaced into terms which cost them all that even conquest could demand.  There is no class of people on earth; red, white, or black, in the favor of whom, there has not been made, at one time or another, by governmental partiality, some sweeping inroad upon the guaranteed rights of the Cherokees.

            The late decision of the court of claims in the celebrated freedman case1, (which was affirmed by the supreme court,) constitutes a very curious, and, at least to the Indian mind, an exceedingly interesting subject of contemplation.  Every man, woman, and child belonging to the Cherokee tribe ought to read it studiously and endeavor to get a clear and practical understanding of the principles which it inculcates, for although the reasoning upon which it is founded is visionary and fallacious, its authority is none the less controlling.  As far as the Cherokees are concerned, it lays down, in a legislative way, and settles forever, what is to be the doctrine of real estate in this country; hence its great importance.  It is indeed a Magna Charta2, not however, like that of King John3, an impregnable bulwark, but rather an irresistible battering ram.

            It will be our endeavor in this article to elucidate, the teachings of this case, so as to bring them, if possible, within the reach of non-professional comprehension; and in passing we may have something so say incidentally in reference to the manifest heresy with which the opinion, as a whole, seems to be more or less corrupted.

            The issue in the case, when divested of all magisterial verbiage and circumlocutory logic, is extremely simple; it calls merely for the construction of a very brief and lucidly expressed written agreement.  In 1866, the Cherokees agreed with the United States to confer upon a certain designated class of freedmen "all the rights of native Cherokees".  Subsequently, the Cherokees sell a portion of their common lands, and these freedmen now claim, under the agreement, the right to share with them equally in the enjoyment of the proceeds.  The Cherokees deny the validity of this claim, and this suit is brought against the Cherokee nation by said freedmen to recover their proportional part of the acquired fund.

            Now in the trial of such an issue, it seems to be very obvious that there can, at most, only two questions properly arises, or be, with legal propriety, at all discussed namely:

            1.  Was this agreement between the Cherokees and the United States valid?

            2.  What were the rights of native Cherokees at the time this agreement was made?

            The first of these vital questions was not raised by the defendant in the trial of the case, and therefore might well have been passed over without the least expenditure of judicial attention.  Yet the honorable court, apparently with an eye to something beyond the real point at issue, proceeds to fortify the validity of this agreement by an argument in the nature of a "confession and avoidance".  It says, "At the close of the Civil War, the Cherokee country was virtually conquered territory, and the Cherokee nation was at the mercy of the United States .  As a condition to peace and the continued existence of the nation as a government, the United States insisted," etc.

            Thus, the honorable court impliedly concedes that the agreement under which these freedmen are endeavoring to make good their claim, was obtained from the Cherokees by force, or distress; but proceeds to justify the extortion by maintaining that these Indians were, at the close of the war, found to be in the condition of rebels.  It somehow very curiously ignores the proud fact that a great majority of the same men against whom it is enforcing the terms of this unrighteous agreement, actually bore arms under the federal flag, and are today, many of them, enjoying pensions from the United States for honorable wounds received, and for health lost, in the service of the Union .  If the penal weight of this exacted agreement fell exclusively upon the Cherokee nation "as a government," (to use the words of the court,) the argument might possibly find some feeble support in principle and a show of historic facts.  But when we reflect that the lands given by this arrangement to the freemen were taken, not from the Cherokee nation as a rebel government, but from the loyal men, women and children composing the Cherokee tribe of Indians, the reasoning loses all support of conscience and common sense.  The court, however, anticipates the difficulty and provides for it, (as we shall see further on,) by holding that these lands in question do not, and did not belong to the Cherokee people, but to the Cherokee government.

            It is true, counsel for the Cherokee nation, had they been up to their business and true to the interests of their client, might well have anticipated the court in the agitation of this phase of the case, and, by a proper appeal to facts, accomplished something to justify the dogged confidence reposed in their professional ability, as well as made some little return for the exorbitant fees squandered upon their useless services.  But, as no defense of his kind was attempted in the case, the utterances of the honorable court in this direction must, as steps in a course of reasoning, needs be regarded as amounting to nothing more than convenient filling, and, as such, calling, at present, for no further attention.

            The next question is, "What are the rights of a native Cherokee?"

            To answer this question correctly is to decide the case correctly; for, if the agreement is to have any effect at all, these rights, one and all, are the very things which it gives to the freedmen.  The question is too simple for discussion.  It needed nothing like an appeal to authority; no elaborate display of legal learning; nor pretentious professional talent; nothing whatever, but the merest bit of ordinary discernment and good sense.  Indeed it is by no means certain that the Cherokees, had not their better judgment been perverted by the painful sense of wrong continually preying upon their feelings; together with the sinister advice of interested counsel, would have ever ventured to contest so plain a business matter.  The final decision of the court is unquestionably correct.  The only wonder is, how that honorable body could have deemed it needful to traverse so wide a field of abstract philosophy in order to come to so common a conclusion.

            The rights of a native Cherokee, as contemplated in the agreement, are undoubtedly those, and those only, to which a man attains by means of his having been born a member of the Cherokee community; we may call them for the sake of convenience, native rights.  The native rights of one who has been born an American are familiar enough; they are exclusively political, and do not include the rights of property.  It is important to notice, too, that these native rights are common, such as may be enjoyed by every member of the community and without distinction.

            Now the rights of a native Cherokee are, in their nature, the same as those of a native American, and a little more; in one single instance, they are made to include the right of property.  According to the ancient institutions of the Cherokee community, a person, as soon as he is born, is invested with the ownership of a legal interest in the common lands of the tribe.

            These, now, are the rights which the freedmen acquired under the agreement; all political rights, together with a common interest in the soil.  That they were consequently entitled to a distributive share of the avails arising from the sale of the lands in question, can not admit of a doubt.

            This, we see, is logically the real end of the case; there is properly no occasion for any further discussion.  The issue is settled exactly upon the terms of the agreement, as it should be.  The court, however, (it is strange to notice,) entirely ignores the agreement, the very thing upon which the plaintiffs have based their suit, and goes on doctrinizing far outside of the case after an ulterior end to be accomplished.  Let us now follow on just far enough to see what that end is.

            The legal title of all the lands in the Indian Territory belonging to the five civilized tribes, those of the Cherokees included, had been, in the first place by treaty stipulation, and then again by patent,  invested in the people composing these several tribal communities.  A state of things like this, maintained by monuments so sacred, was looked upon as a matter somewhat too delicate to be meddled with directly by congressional legislation and yet it was a most formidable barrier in the way of any measure looking to the opening up of the country to general settlement.  Congress could not, certainly not with anything like good grace, arbitrarily ordain any change in the nature of this title.  But the function of the judiciary is different; it is the business of a court, not to do anything, but to find out and determine what has been already done.  If, now, the title of these lands has by any means--by accident, magic, conjuration, enchantment, or miracle, say--gone forth out of the people where it was originally placed by the patent, and crept into, and nestled itself in, the tribal government, could the court be charged of anything wrong for knowing this wonderful feat of transmutation and giving it a proper announcement?  It would seem not.  Hear the words of the court:

            "By the adoption of the constitution, the title of the common property passed from the communal owners and became vested in the newly founded government."

            "With these powers of absolute ownership--it is apparent that the public domain of the Cherokee nation is analogous to the public lands of the United States, or the demesne lands of the Crown, and that it is held absolutely by the Cherokee government, as all public property is held, a trust for governmental purposes, and to promote the general welfare."

            "The court appreciates the earnest argument of the counsel for the defendant, that this result could not have been anticipated by the Cherokees--the result indeed was not anticipated--the Cherokees did not foresee that this radical change of condition would take place."

            That is to say, the Indians, in tinkering with a constitution, got their fingers caught in a trap; it has bitten them too, out of "house and home", and the honorable court shows no disposition to tread the cruel springs.  It is all true; they did not anticipate any such thing.  How could they?  In the name of common sense, what logical, or natural, connection can there be between the adoption of a constitution and this strange shifting in the vested rights of property, that would enable any rational mind to step from the former as a premise to the latter as a conclusion?  If the fee simple title to a piece of land be vested in a hundred men, and they should adopt a code of rules regulating their common enjoyment of their property, what possible effect could that measure have upon the nature of the title?

            The truth is, there is a fatal non sequitur lying right here which breaks the thread, and destroys the force of the court's reasoning.  It is obvious that this skipping of title, out of the people and into the government, is not a thing that had been already done, requiring only the exercise of the judicial [unintelligible] to make it known; and the court proving equal to the emergency, simply resolves itself, in effect, into a legislative body, and as such declares what shall be done.

            We see now the predicament; the civil policy of the Cherokees has been reduced to something like that of the United States .  They cease to be the owners of the land they are living on; that is now the property of the Cherokee government, and the people have come to be merely "citizens", and like citizens in the United States , they must be landless until they have obtained some real estate by purchase.  But, as the constitution of the Cherokee nation prohibits all kind of traffic in soil, they have no chance to buy.  Hence the Cherokee, the late proud owner of millions of acres, is reduced by this decision to the miserable condition of a man homeless, sojourning squatter, in his own country.

            But it is not easy to see what object the honorable court hopes to accomplish by this singular line of argument, it certainly has no tendency to show that the freedmen, the plaintiffs, are entitled to recover.  It has just now said "that the public domain of the Cherokee nation is  analogous to the public lands of the United States , and that it is held absolutely by the Cherokee government as a trust for governmental purposes, and to promote the general welfare."  Now, when the Cherokee national council sold the Outlet and converted the proceeds to private uses, instead of applying it to governmental purposes; and to promote the general welfare, "they committed a breach of trust--a misapplication of public funds.  The parties who received it per capita had no right to it; and if they did not, neither did the freedmen.  Will the court hold that a grab by one half of the citizens of a nation upon the public treasury would entitle the other half to make a similar grab?  Likely not.  The only proper thing to be done in such a case would be simply to "turn the rascals out", and then, if possible, recover the wasted money.

            While this wide open-field run of arguments on part of the honorable court has no tendency whatever to support the decision at which it finally arrives, it militates with much damaging force against the vital interests of all the Cherokee people and the freedmen as well.  The legal title to the "public domain" being in the people, the property was measurably safe against the corrupt schemes of speculation.  It is much easier to handle a national council than it is the great mass of honest men, women and children whom they represent.

            Besides, the state of things brought to view by these dicta of the court, has an ulterior bearing which should not be lost sight of.  In general, all Indian lands, when the Indian title is extinguished, becomes the property of the United States ; there is no other party, or power, on earth that is able to take.  Now the title to the Cherokees "public domain", (that is to say, the Indian title,) according to the court's way of thinking, is vested in the Cherokee government.  But here is the Dawes Commission4 at our door demanding that this Cherokee government shall die on the cross of negotiation.  Suppose they attain their demand; whose land then is the Cherokee public domain?  There is room along on this line for much practical remark; but we forbear, and leave the matter in the hands of our practical statesmen.

            There is one other feature in the argument of the honorable court which, in closing; we venture to notice, we refer to its remarkable remoteness and general want of adaptation to the ends, to be attained by the use of it.  Not only invoked are the artificial and barbarous principles of the old feudal system, but an appeal is made of the transcendental philosophy to such library owls as Herbert Spencer5.  Says the court, "Herbert Spencer has said, 'did primitive communal ownership survive, there would survive the primitive control of the uses to be made of the land."

            What does that mean!  If such things as this be incomprehensible in these proud days of light and learning, what must they have been years ago before the English language was ever introduced among these people?  When our old Cherokee fathers met in convention to get up a national constitution, they had never heard of that distinguished gentlemen; they were totally unaware of what he had ever said, or was going to say, about the nature of real estate in Europe .  If the effect of the constitution which they adopted is to be interpreted by his sayings, instead of their own understanding of the matter, then truly, as the court has said, "the result was not anticipated."

            How different from this, in spirit, is the language of that great jurist and peerless man, Chief Justice Marshall6 in the case of Worcester v. Georgia7!  Speaking in reference to the construction of Indian treaties, he formulates a general principle in these words:

            "The language used in treaties with the Indians ought never to be construed to their prejudice.  How the words of a treaty were understood by these unlettered people (the Cherokees) rather than their actual meaning, should form the rule of construction."

1 Freedmen's case:  When the Dawes Commission was establishing citizenship rolls for the Cherokees, it entered the names of Freedmen on separate rolls.      Back

2 Magna C[h]arta: Originally issues in 1215, this decree insured, among other things, that the King could be bound by law.      Back

3 King John (1166-1216):  He was the King of England following King Richard I.  King John was dubbed one of the most ineffectual kings of England .  He is best known for the Magna Carta, under the terms of which some royal power was devolved to the aristocracy.       Back

4 Dawes Commission: Authorized March 3, 1893 under a rider to an Indian Office appropriation bill and chaired by Henry L. Dawes.  Its purpose was to convince the Five Civilized Tribes to cede their tribal lands through individual plots over to each member signed up on the National Registry or roll under the General Allotment Act of 1887, also known as the Dawes Act.  Individual plots could then be easily purchased from Native Americans for white expansion, and "surplus" land could be opened to white settlement.        Back

5 Herbert Spencer, (1820-1903):  A British philosopher and sociologist, Spencer was a major figure in the intellectual life of the Victorian Era.  He is considered the father of Social Darwinism and coined the phrase "Survival of the Fittest" often attributed to Charles Darwin.   Back

6 Chief Justice Marshall, (1755-1835):  John Marshal was Chief Justice of the Supreme Court from 1801 to 1835.   He ruled in favor of the Cherokees in the Worcester v Georgia case, recognizing Indian nations as sovereign; however, Indian removal from the East continued in spite of this ruling.       Back

7 Worcester v. Georgia: A case brought to the U. S. Supreme court in 1832 involving the passage of a Georgia law that stipulated that all white people residing within the section of the Cherokee Nation that lie within the boundaries claimed by the state must take an oath of allegiance to the state and to procure a license.  Samuel Austin Worcester was a missionary to the Cherokees who came under the purview of this law.  He argued that the Cherokee Nation was independent although subject to federal law but not subject to state law.  The Court, under Chief Justice John Marshall ruled that the Cherokees were entitled to protection by the federal government from the actions of the state of Georgia and that all whites indicted under the state law should be freed.   Worcester and fellow missionary Elizur Butler had been imprisoned and sentenced to four years of hard labor, but the state refused to recognize the Court's decision.  President Andrew Jackson refused to enforce the Court's decree, and the missionaries remained in prison until a compromise was reached.  The case is recognized as a landmark as it relates to the status of tribal sovereignty.    Back

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Indian Chieftain

January 20, 1898

Too-Qua-Stee Has Read the Bill.

            Editor Chieftain:--My last daily brings word that the so called "rehabilitation" bill has now gone entirely through the tedious process of formulation.  All the wisdom of the joint committee of the two houses had spent itself upon the construction of this proposed law.  And yet it is hard to see the occasion of so much Herculean exertion in the performance of so simple a piece of legislative work.  If the bill had happened to take into consideration so small a thing as the personal rights of the poor people of this country (the poor Indians, I mean) the job would have been a difficult one and it could have been very easily seen how many days and weeks might have been devoted profitably to a consideration of its provisions.  But the truth is, we have no signs from any source to show that these people were even once thought of in the committee during its discussion upon this bill.  The mind of the committee seems to have been wholly engrossed with one single thought--of the lands of this territory belonging to these Indians.  This was the theme; its sub-divisions were these: Townsites; allotment; mineral lands; and a few other great matters which concern the cause of universal civilization.

            I know it is vain to talk against the townsite scheme.  Yes, it is vain.  But it is natural to practice in vanities sometimes.  The fawn in the clutches of the panther will bleat for mercy; and it is useless to coax it to hold its peace by telling it that its bleating is useless; is vain.  It will bleat all the same.  When death gets hold of a man and begins to drag him down, it is pretty apt to bring a groan or two in the time of it, although he knows these expressions of despair are utterly fruitless.  Just so it is with the poorer and more helpless classes of the Cherokee people today as they sit in their cabin doors and contemplate the irresistible goings on of this great townsite outrage.  They raise their voices and indulge in all the abandon of hopeless remonstration and they do this, and will continue to do it, although they know that in the demon jaws of the money greed the most plaintive cries for mercy are vain and futile.

            The bill provides that the Dawes commission shall walk along up and down the railroad lines and stake out the most valuable lands in the territory--well, it is not important to say for what purpose; it is enough to know that the purpose is to take this valuable property from the poor men, women and children of the Cherokee people, and thus outrageously stint their scanty means of living.  I know the contemptible platitudes that are used in congress and other speculative circles as arguments in justification of this great wrong.  It is a country's pride to have cities in it, great and flourishing cities; that cities develop a country; that cities are fosterers of commerce; that capital and wealth in general must have emporiums to nestle in, etc., etc.  But I assert that a city that is built out of plunder upon the people does not deserve to exist.  The valuable lands to be taken to build these cities upon belong to the Cherokees--it is their private property.  They are not public lands, not withstanding the strained dictum of the courts.  When these lands are taken, and the cities built, whose cities are they?  The Cherokees?  No; they are conveniences contrived by the government with means extorted from the Cherokees, not for the Cherokees, but for the whole world.  The Cherokees are to be the last people to be benefited by these cities.  The Indians will be crowded out of the corporate limits.  The inhabitants of these cities will be white people, persons that had no interest in the soil, none in the donation.  This bill provides that these Indians shall contribute of their scanty means to build cities for strangers.

            It is useless for congressmen-for anybody-to attempt to apologize for this great wrong by saying that the money derived from the sale of these townsites is to go into the Cherokee treasury for the good of the tribe.  When this money is locked up in the treasury of the nation, or of the United States, it is not feeding and clothing the Indians who are in daily need of it; and it will remain locked there, and these old Indians who have been fleeced of it, will die in their poverty and go off to their long home and never get a smell of it; as to them it will be a clear loss, a most effectual piece of robbery.

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The Indian Chieftain

January 27, 1898

 

TOM STARR1

Collection of Anecdotes of a Notorious Cherokee Character: A Simple Child of the Forest , He Made His Impress Felt Until a Treaty and Amnesty Resulted

            There is something in human nature that instinctively admires success, especially if it be of an unusual degree, and has been achieved by overcoming great and formidable obstacles.

            It is doubtless on this principle that the name of Tom Starr has been enabled to live so long among the popular traditions of this country; for it will hardly be claimed that he ever did anything to lay posterity, in other ways, under obligations to at all perpetuate his memory.  He was a success, simply a success.  He was the only outlaw the great southwest, so fruitful of desperadoes, ever produced that had the genius to battle all pursuit and bring finally a long and lawless career [unintelligible] triumphant, that is to say, a respectable conclusion.  [Unintelligible] a mixture of white blood in his veins.  He was a man without any special culture, but [a person] whom nature had been particularly lavish in the bestowment of great qualities.  In statue, he was considerably above the average [height] approaching indeed somewhat [to the] gigantic.  His mind too seemed to be framed upon the [one] great plan.  His intelligence as strictly native, yet exceedingly bright and comprehensive.  [His] sympathies were very much [in par] with those of other great and good men; wherever his great [truth] of human nature would [unintelligible] them to be reposed, they were always warm and generous.  His manner was uniformly gentle and unassuming, standing in marked contrast with any conception of the man that the ready should be likely to get of him from [unintelligible] of his biography.  His [unintelligible] were naturally slow and [unintelligible]; his expression, generally aloof and winning as that of a [unintelligible] woman.  He was molded [unintelligible] of good humor that never grew cold.  His fund of amusing anecdotes was exhaustless.  [He had] a great black eye ever [sparkling] in the reflections of [unintelligible], his jokes were measured out in endless succession, all invariably tipped with a stinging quip which, when it struck, never failed to make its victim writhe and yet, at the same time, to covet another thrust merely for the fun of it.

            There was something in Tom’s character withal which, to the eye of an ordinary observer, looked very much like superstition, but which at the same time, considered with reference to actual results, seemed rather to be something of a supernatural prescience.

            Tom’s own account of the matter was curious and not a little interesting.  He denied the charge of superstition, and also disclaimed everything in the nature of a divine favoritism.  He ascribed all his good luck to natural causes.  He claimed to be on terms of the most intimate friendship with all the forms of animal life, except man.  He had nothing to fear from wild beasts and reptiles.  The only enemies he had belonged to his own species.  His many hairbreadth escapes from the fatal clutches of the national police that were ever on his trail, he afterwards said, were due to the timely warning brought to him by some friendly bird, or animal, or movement in the material world.

            However this may have been, it is certain that he evinced, at times, a capacity for anticipating future events with an accuracy that was truly astounding.

            While Tom’s superstition found but little sympathy with his more philosophic brothers, they had on more than one occasion, during the period of their outlawry, good cause to repent of the infidelity.

            One bright morning, he and two of his brothers, after an all-night ride, ventured to alight and take breakfast with friends at the home table, a pleasure which, owing to the assiduity of their pursuers, they rarely had a chance to enjoy.  Having dined and fed their horses, the attractions of home caused them to linger and defer their departure until the major part of the forenoon had passed away.  In the meantime, a rooster, the apparent headman of a large flock of chickens that peopled the door yard, hopped in upon the floor of the veranda, and taking his stand upon the spot where the status of old Jim Starr’s blood, Tom’s father2, (he had been assassinated right there by the police just a few weeks before) was still visible, [unintelligible] of his best crowing.  Tom eyed the bird thoughtfully for a few moments, and then, rising from his seat with a spring and speaking in tones of explosive earnestness said, “Boys, it is time to be off; that rooster says the police will be here within thirty minutes.”  The boys, however, only laughed at their big brother’s whimsy and retained their seats.  The rooster ceased his crowing and went about his business, and pretty soon Tom was seen galloping off into the woods for a place of safety.  But, sure enough, within the time limited, the thunder of horses’ feet were

heard just up the road a way, it was the police coming in full force and speed, making “a run” on the Starr house.  The two boys, who through unbelief, had almost sinned away the day of grace, understood only too well the nature of their situation.  With the precipitation of two startled cats, they leaped from the back door of the kitchen and burying themselves in a covert of tall weeds that skirted the back yard, they were enabled thence to reach unobserved the adjoining field of growing corn.  The police [unintelligible] up to the gate, dismounted, and surrounded the house, but the game had flown.

            We have just said that the police had slain old Jim Starr.  It is right and proper here that we should mention this fact; it is a circumstance which tends powerfully to mitigate the moral darkness of Tom’s dong and bloody career.

            Old Jim had taken a conspicuous part in the bringing about of the Treaty of 1835.3  On this account, he fell under the same condemnation in the execution of which Major Ridge, John Ridge, and Elias Boudinot had been taken off by the hand of assassination.  Charges of a criminal nature were preferred against him and it became the duty of the police to arrest him and hand him over to the civil authorities for trial.  It was well understood, however, that in the making of an arrest, the officers would be authorized to use any force that might be required to overcome such resistance as might be offered by the accused, even to the taking of life.

            The old man was sitting one summer afternoon upon his veranda enjoying his pipe, when a grim squad of horsemen came galloping up to the yard gate; a gruff voice reared out from among the crowd, “We have come for you.”  Starr rose from his chair and facing the man, replied, “All right, gentlemen, all right and come in.”  This exhibition of hospitality was instantly answered by a volley of rifle shots.  A number of the balls took effect squarely in the breast.  “Shoot again, you cowards!” he exclaimed.  These were his last words.  The great body, (he was a very large man) reeled and sank to the knees, thence falling prostrate, ceased to breathe.

            The assassination of his father inspired Tom with the demon of revenge.  He and his brothers (there was a host of them) took counsel together in reference to measures of retaliation and thus sprang into existence that formidable band of desperate men long and widely known in the annals of this country as the “Starr boys.”

            From this time, the struggle which had grown out of the making of the Treaty of 1835, and had divided the nation into two hostile factions, began to rapidly wane in point of interest and was finally well nigh forgotten in the stirring fight that was carried on for the next two years between the national police and the Starr boys under the leadership of the redoubtable Tom.

            It was not long until an opportunity was offered which enabled Tom to sip his first sweet drafts of revenge.  There was a certain member of the police force who was especially enthusiastic in the pursuit of criminals (treaty men) and was generally relentless whenever he chanced to have it in his power to deal them a blow.  He had been present at the assassination of old Jim Starr and managed to behave on that occasion in such a way as to make himself an object of the avenger’s special malice.

            There was a rural camp meeting in progress not far away.  The police generally attended upon such occasions, ostensibly to protect the public peace, but mainly to entrap such “scouters” as might be drawn thither by the force of social attractions.  Tom also attended the meeting.  However, it was only when the night had rendered the bushes that environed the encampment a covert of solid darkness that he ventured within the sound of the gospel.  At such hours, he would walk in among the crowd of worshipers, and under the screen of some flimsy disguise, hear and make note of all that was going on.

            On one of these nightly occasions, he fell in with a man whom he knew to be a reliable friend of the Starr boys, and at the same time wholly unsuspected by the police of any such odious leaning; on the contrary, he was measurably within their confidence.  This fellow Tom induced to cultivate a drinking familiarity with that particular member of the police force whom, of all others, he desired most to get hold of and invite him out into the darkness of the bushes to a designated spot where the beverage could be found in secret keeping.  This was a mission easy to accomplish, for the fellow loved liquor dearly and was seldom clear from under its influence.  On arriving at the appointed place, as dark as Erebus4, the deluded policeman raised the jug and began to drink with avidity, supporting the vessel with both hands.  This was the supreme moment.  Just then two mighty arms closed around the man’s body from behind and lifted him clear from the ground.  He struggled mightily, but in the giant embrace of Tom Starr he was as helpless as a babe.  Other hands deftly suppressed all out-cry.  The next moment the poor fellow found himself firmly bound upon a horse and galloping away in company with the Starr boys.

            But, after all, it seems as if Tom’s trusted confederates in the lower kingdom of nature were not always at their post of duty; there were times, now and then, when they seem to have left him to shift for himself and to meet emergencies single handed just like other men – when there was no friendly bird or beast or reptile at hand to warn him of his danger.

            The main quarter of his scouting range lay in the southern portion of the nation, including the border counties of the State of Arkansas .  Yet, occasionally he would vary the program by skipping out on a visit to the north, among friends about Maysville and Beattie’s prairie.  Generally, these journeys were made by night and on the state side of the line because it was allowed that the ambush was not so common an institution over there as it was known to be on this side.

            On one of these trips, the police became apprised of Tom’s movements and they shadowed him.  They determined to “lay [in wait]” for him on his way back to the south and this had to be done, if at all, over in the state among the white people.  Now the good people over there had no personal interest in the fight between the Starr boys and Ross’ police; they were impartial judges as to the real merits of the contest, and the opinion widely prevailed that the police were a crowd of armed fellows much more sinning than sinned against.  Their conduct had been such as to give rise to much earnest talk among the settlements as to the probabilities of a Cherokee Indian outbreak.  Women and children in general were in a trembling state of expectancy, and even men of the best quality of nerve saw nothing in the matter to sneer at or joke about.

            So the police went over to select their ground.  The job was deemed to be too delicate to be entrusted to a multiplicity of agencies.  Hence, a few select shots only were detailed to form the ambush.  The highway crossed the channel of a dry run which, in wet seasons, formed a torrent down the slope of a hill to the west.  The current, in the course of years, had brought down the fragments of the forests and deposited them in an immense drift just a few paces below the road, forming not only a fine place for concealment, but a splendid breastwork against the dangers of attack.  Behind this, the party was squatted in position.

            It was about one o’clock in the morning, and the shoes of Tom’s horse were heard smiting the flinty surface of the highway, evidently nearing the fatal spot.

            We have just said that Tom’s guardian angels were sometimes neglectful of their duty and left him to take his chances like other men, and it was certainly seeming so in this case, but the ways of destiny are incomprehensible and it is no use to reason about them.

            Pretty soon Tom’s body, moving in the starlight, came exactly in range.  The platoon fired, strange to say, there was only one shot that [lodged] either in horse or man.  A single ball struck the latter in the right leg just above the ankle, causing only the inconvenience of a little pain and a profusion of blood.  At the crack of the guns, Tom’s horse sprang forward and was off at a rate of velocity which no kind of pursuit might hope to equal; Tom always rode a good horse.  The assassins rose from their ambush, mounted their horses and started in a gallop after the fugitive feeling sure that he was fatally wounded and that they would soon come upon his dead body thrown on the ground.  Tom had not gone far when he met a young white man riding a good horse; with the ingenuity of real genius he instantly thought himself of a plan for eluding the pursuers.  The moment his eye fell upon the young man he exclaimed, “Police!  Police!  Killing and scalping the people!  Run for your life!”  The stranger [turned his] horse and started up the back track under whip and spur leading the race by a good number of rods.  This state of things being fully established, Tom wheeled his horse out the road and dashing into a thicket became deathly quiet.  Pretty soon his pursuers passed him, and on they went allured by the clatter of horses’ feet which they took to be Tom’s.  Tom then hastened away to a place of safety in the woods, kindled a little fire and heating the blade of his big knife cauterized the wound and staunched the flow of blood.

            Years afterward, in telling this anecdote, Tom would laugh dryly and say, “I never heard what became of that young man, whether the police caught him or not.”

            For more than two years, this war between the national police and the Starr boys went on; it was a ceaseless running tight; it being, much of the time, impossible to tell which was the pursuer and which the pursued; for Tom, imitating the practice of a wildcat when chased by the hounds, often doubled on his trail and falling in behind the police, hung for days upon their heels without their having any definite idea as to his whereabouts – until, at the invitation of a favorable opportunity, the crack of his rifle disclosed his position and corrected their reckoning.

            At length, in 1846, the government of the United States interfered, and the several parties of the nation were constrained to lay down their arms and subscribe to an agreement of peace.

            After that, Tom’s old better nature seemed to reassert itself.  He retired quietly to his farm, attending to his own business, and closed his days in peace at a good, ripe, old age.

            While posterity may not feel inclined to condone the whole of Tom’s bad deeds, yet as long as human nature remains what it is today, the provocations which he had for embarking in a career of desperadoism will never fail, when only considered to protect his memory against that degree of obloquy, due to those who willfully defy the law and go on a race of crime merely for gain or base distinction.

1 Tom Starr: The son of James Starr, was associated with the Ridge faction which had a growing conflict with the Ross faction.  James Starr was assassinated by a group of men from the Ross party after which Tom and "the Starr Boys" took revenge.  They were considered outlaws by the opposing forces during the 1840s.        Back

2 Mary Scott’s interview reveals that Jim Starr was associated with the Ross faction who had a growing conflict with the Ridge faction who vowed to get rid of Jim and sent nineteen men to his home to murder him.           Back

3 Treaty of New Echota - Also known as the Treaty of 1835, this document was signed by U.S. government representatives and a minority faction within the Cherokee Nation on December 29, 1835 in New Echota in the Cherokee Nation and subsequently affirmed by the U. S. Senate.  It paved the way for removal of the Cherokee people west of the Mississippi and under its terms, the government promised to pay $4.5 million in compensation for lands and improvements vacated.         Back

4 Erebus: In mythology, Erebus is the embodiment of primordial darkness.       Back

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The Indian Chieftain

February 17, 1898

 

Too-Qua-Stee Writes

an Open Letter to Hon. Chas. Curtis, M.C.1

            My Dear Sir:  It has not been my fortune to be honored with a personal acquaintance with you.  Therefore, by way of introduction, suffice it simply to say that I am an individual belonging to the older generation of Cherokees now living, and have a reasonable solicitude for the rights and well being of my people.

            I have carefully read the bill in Congress2 by the terms of which you propose to revolutionize the institutions of our country.  As a compulsory measure in avowed disregard of former agreements, it is good, perhaps the best that could be reasonably expected; certainly better than anything that has been as yet arrived at by amicable negotiation; certainly not worse than the best that the Cherokees had good reason to believe attainable in their behalf by means of an agreement with the Dawes Commission.

            Yet, in conceding so much, I would not be understood as finding no fault with the bill.

            I perceive, for instance, that it provides for the allotment of only the use and occupation of our hands.  This feature of the bill is objectionable from several points of view:

1.                  Suppose the allottee should die, what then is to become of the land covered by this allotment?  This use and occupation expire, because there is nobody living to keep it up.  The land is now the common property of the Cherokee people, and is in the use and occupation of nobody.  What is to be done with it?  Will it be again subjected to allotment and awarded to somebody else?  If so, to whom?  To the heirs of the deceased, or to others?  Would it be likely, in such an event, to become a sweet morsel to be coveted and grabbed at by speculation?  These are contingencies of much practical importance; yet your bill makes no adequate provisions for meeting them.  Under the bill as it now stands, the administration of our landed interest is likely to prove a matter of endless perplexity and embarrassment.

2.                  The effect of this kind of allotment will be to retain our Cherokee lands universally inalienable; it will give us all the restrictions of land in severalty but, at the same time, deny us the benefit of the chief element of that kind of property – its alienability.  It is a principle in the science of property that an article for which there is no market value, is in nine cases out ten, but a drug and burden upon the hands of its owner.  There generally comes a time in the life of a man, when it would be better for him to convert his land into money, especially along in the last days of his old age when he cannot utilize it in raising his support from it with his own hands; the money would serve him a much better purpose.  It is easy to conceive of a thousand different ways in actual life in which this truth might be further illustrated.  There are some cases undoubtedly among the Cherokees, as there are always any where else, in which it would not be best for the party to have control of the fee of the land which he enjoys.  There could be no fault found with the bill for withholding the absolute title from such persons.  But that is, by no means, the condition of the average Cherokee.

            Permit me, sir, in view of these facts, respectfully to suggest in this connection at least two amendments for your bill: 

1st.             That, in all cases where only the present use and occupation are assigned, the allottee, if living, and in case he is dead, then his rightful heirs shall take in fee simple the land covered by such allotment, when ever the absolute title in severalty shall come, (as come it will sooner or later) to be disposed of in severalty. 

2nd.          That all persons who are competent to be entrusted safely with the disposal of their lands, be allowed to take their allotment in fee simple, and that a suitable tribunal be designated whose duty and power shall be to try and determine such questions of competency and order accordingly.

            Once more, the provision in your bill, sir, setting aside 157,600 acres of land for the benefit of the Delawares is exceedingly objectionable.  The ground of this objection cannot but be most obvious by the slightest attention to the facts in connection with this subject.

            By consulting the 15th Article of the Treaty of 1866, it will be seen that the Delawares came into the Cherokee country under an arrangement which required them to “have a district of country set off for their use by metes and bounds, equal to 160 acres for each man, woman and child, of said tribe.”  The contract entered into by the Cherokees, with the Delawares was based on this provision of the treaty, and the treaty and the agreement constitute a part of each other and must be construed together.

            The treaty required that these Delawares should take this 157,000 acres in a compact body – in the form of “a district of country set off by metes and bounds.”  But no sooner had the negotiations looking to their admission been completed than they thought better of their bargain; they abandoned the idea of maintaining a separate community; they thought no more about “preserving their tribal organization, and maintaining their tribal laws, customs and usages;” they begun to see the advantages of promiscuous settlement at large upon the Cherokee common domain would be much more desirable than anything that could be effected from a distinctive community locked up within the “metes and bounds” of a small district about fifteen miles square; they saw that promiscuous settlement would release them from their confinement to their agreed portion of 160 acres each and open up to them a capacious field for monopoly, and give them an equal chance with native Cherokees in that illicit kind of speculation.

            Hence, from the earliest times, we hear nothing from then with reference to a separate “district” set apart by “metes and bounds;” nothing about preserving their original tribal organization; nothing about living under their own “tribal laws, customs and usages.”  From the very first, they break away from the terms of their agreement with the Cherokees.  Instead of congregating themselves upon their stipulated district, they scattered themselves up and down the common lands of the Cherokees, selected the most desirable spots, and instead of limiting their ambition to the stipulated 160, they have proved to be among the most successful monopolists in the country, and have been, for the last thirty years or more, enjoying the use of thousands of acres of Cherokee land to which they have had not even a shadow of a title under their contract and the treaty.  This, my dear sirs, is the character of the facts in the face of which this “segregation” 157,000 acres is ordered.

            There arises then a question like this: Can a wholesale segregation of land like this, and under these circumstances, be just to the Cherokees?

            The bill does not indicate how the “setting apart” is to be accomplished.  It must, however, be done in one or the other of two ways: It must be taken in the form of a compact district as provided by the treaty, or in detached portions so as to include the improvements of the individual Delawares as they are now located.  The latter scheme could not be made effective simply because it is not authorized by the terms of the compact between the Delawares and Cherokees.  It was never intended by the contracting parties that the Delawares should have the privilege to run about over the Cherokee domain and pick out the most desirable spots as going to make up the sum total of their agreed tract.  This was not the contract.  They were to take their land in the form of a “district,” or county, and taking it as it came – good, bad and indifferent.

            Again, the “segregation” of this land for the benefit of the Delawares, would now be not only impracticable, but exceedingly unjust to the Cherokees.  This provision in your bill, sir, implies that the Delawares are entitled to the ownership of this land under the terms of their contract with the Cherokees; yet to hold such a view is certainly a very grave misconception of the facts in the case.  It is not easy to induce a mind trained in the modes of thought peculiar to the common law, to contemplate the subject of landed property after the Indian way of thinking.  Yet, it is according to this Indian way of thinking that the contract is to be interpreted.  The parties were both Indian.  It never entered the mind of the Cherokees that they were selling or the mind of the Delawares that they were purchasing any more than the right to occupy and use the land in question.  This is evidenced by a multitude of considerations:

1.                  From tribal customs.  An Indian in selling land to a fellow tribesman never thinks of conveying anything more than the right of use and occupancy; nor in buying, in acquiring anything more than that. 

2.                  The Cherokees, in all cases where it was their intention to part with the fee, have been in the habit of executing to the purchase a deed of conveyance, as in the sale of those select tracts west of 96 degree to the Osages, and to other tribes that came into the Cherokee country about the time the Delawares did.  The United States did not require the Cherokees to deed in the Delawares as she did in behalf of those western tribes.  The Delawares themselves never thought of securing from the Cherokees any conveyance in fee, nor did it ever occur to the Cherokees that the rights contemplated by such an instrument would ever be insisted upon. 

3.                  According to the treaty this land was simply to be “set off for their use,” and they were to “pay for the same,” etc.  “Pay” for what, the land, or the use of it?  Of course a lawyer would say “the land,” because his mind is professionally trained to that way of thinking.  But what a lawyer might think of the matter is not material.  The important question is this: “What were the minds of these Indians at the time they were dealing with each other?”  Every circumstance goes to show that the Delawares were to “pay” simply for the use of the land, in the meantime, with a guarantee that when an allotment should be made, each one of them should have not less than 160 acres. 

4.                  Finally, the Delawares stipulated with the Cherokees that whenever, in the future, an allotment should be made, each one of them should be allowed to take 160 acres.  Now if these Delawares had actually purchased and paid for this land, why should it be necessary for them to stipulate at all for an allotment?  If the land was their own by purchase it was theirs and not subject to allotment.  If, on the other hand, it was subject to allotment, it must needs be the common property of the nation.

            The conclusion is clear; the Delawares  never acquired the fee simple of this 157,000 acres; and to set the same aside for their use as proposed by your bill, sir, would be a most unwarranted appropriation of the common property of the Cherokee people.

            In conclusion, would say that the arrangement proposed by your bill lacks somewhat of being in accord with sound principle.  Permit me respectfully, sir, to call your attention, (perhaps needlessly,) to the fact that there is only one right way to allot a piece of common property in severalty among a community of common owners; and that is, to divide the whole property into as many parts of equal value as there are members in the community and then see that each member is put into possession of his part; any scheme different from this, partakes of the nature of unfairness.  There can be no objection to the reserving of town sites and laying them off into town lots provided the commission entrusted with that work be sufficiently hampered by law to render speculation impracticable.  But let these town lots be appraised at their real value, in the same manner as the quarter sections in the rural districts.  Then if any man wants a piece of soil within the limits of a town plat, let him take it at its appraised value and as a part, or even the whole of his allotment; why not?  Is that not fair enough?  Any other scheme for the disposal of the soil within the limits of a town site than this, or some other which shall secure the same results, cannot be without the need of justification against a suspicion of greed.

            The provision in your bill, too, setting aside certain portions of land for religious, charitable and educational purposes, is also objectionable.  I cannot persuade myself to believe that it is fair to make the Cherokees, as a class of citizens, contribute so liberally of their means to the support of these public institutions, while there are in the territory so many thousands of residents who are soon to have a large portion, and perhaps the whole of the benefits, and who, at the same time are free from all the burdens.  The churches are not exclusively Cherokee churches; the schools are not exclusively Cherokee schools; and the time is near at hand when our asylums will not be exclusively Cherokee asylums; why should the Cherokees alone be taxed for the support of these institutions?  Taxation for public purposes should be equal.

            My view, sir, of this subject is this; let these poor Indians have their property without the least “dip,” stint, or reserve.  That is fair and nothing else can be fair.  Then, when this is done, let there be levied a suitable tax for these public purposes upon all the inhabitants of the territory without regard to race or citizenship.

            With much esteem, sir, I am your obedient servant.

1“bill in Congress”:  The Curtis Bill of 1898 passed the House and the Senate on April 14th and blocked any further actions of Indian legislation.    Back

2 Charles Curtis (1860-1936) and Curtis Act of 1898: Curtis, for whom the Curtis Act of 1898 was named, was part Kaw Indian. He became a representative for the State of Kansas , later became a member of the Indian Affairs Committee, and eventually became Vice President of the United States under Herbert Hoover. The Curtis Act of 1898 included the Five Civilized Tribes (Choctaws, Chickasaws, Creeks, Cherokees, and Seminoles) in the Dawes land allotment process.  This law abolished tribal courts and tribal governments in the Indian Territory, established towns in Indian Territory, and prepared the way for the statehood of Oklahoma . When his allotment of Indian lands came up in 1902, Curtis received 1,600 acres for himself.       Back

 

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The Indian Chieftain

February 24, 1898

The Town lot Problem

 

Too-Qua-Stee Criticizes the Position of Judge Stewart

            Editor Chieftain:  From indications appearing upon the first and fourth pages of your paper two weeks ago, it seems that Judge C. B. Stuart of McAlester, I.T.1, has been giving the town-lot men of the Cherokee Nation the benefit of his great professional talent before the Indian Committee in Congress.  The Judge’s effort is certainly a very masterly profusion of harmonious English; but as an argument, it is a failure.

            It is not easy to get the exact form of the proposition which he is trying to sustain; but it is something (we have to guess at it) like this.  The Cherokee Nation, sometime ago, leased to one W.E. Halsell2, and to one W.P. Thompson3, certain pieces of real estate for a mere nominal rental paid in advance; and now to make it appear that these leases are not really leases, but warranty deeds, vesting in these lessees a title, in fee simple, is the job which Judge Stuart has – engaged his professional ingenuity to accomplish.  Let us see now how he gets along with it.

            At the outset, he sets forth one of the most ancient of these leases as an exhibit.  It is presumable that he intends to offer this as a sample of all that was ever issued of that kind of title – paper.  At the conclusion of this exhibit we find the following words:  “Subject, nevertheless, to the express condition of the Cherokee Nation in this case made and provided: that this deed shall be deemed and held as an occupant title only to the promises bargained and sold.”

            The instrument was evidently drawn by a hand woefully ignorant of the proper forms of conveyance.  It is fraught with enough of the solemn, sonorous verbiage to make the cession of an empire or one of the heavenly planets; yet, after all, it turns out to be only the right to occupy, and possibly to use, that the purchaser buys, or the nation intends to convey.

            It would have been a good thing if the judge had reined up his prancing rhetoric just along at this point and told us, in plain everyday terms, something about the difference between a real warranty deed and a real lease.  It would have saved us the trouble of such an effort.

            What, then, is a lease?  Why, it is simply the written evidence of the sale and purchase of the right to occupy and use a piece of real estate.  What is a warranty deed?  It is the written evidence of the sale and purchase of the ownership of a piece of real estate.

            We see therefore that the result of the judge’s effort, so far, has been simply to prove, by the most effective form of evidence that his clients never bought these town lots; that they only bargained and paid for the occupancy, and possibly the use, of them; that is to say, they simply leased these lots from the Cherokee Nation.

            This being the case, it is obvious that Mr. Halsell and Mr. Thompson are in the legal predicament of mere tenants of the nation.  It is true; the term of this tenancy is in perpetuity.

            But we have no quarrel with the town-lot men about this perpetual feature of their holding.  There is no question but that they bought of the nation the right to occupy and use these lots forever, world without end, and amen; and now it is but fair that they should be secured in this right, in so far as they have not forfeited the same by non-user, or the practice of monopoly.

            When the time comes to allot the common lands of the nation – why, just let these gentlemen take these lots as a part of their allotment.  Then certainly they will have all that they could reasonably ask.  They will have the title to the lots, including both the right of property and the right to occupy and use the same forever and ever.  Is not that enough?  Is not that as much as any man blest with a human conscience is entitled to ask?

            But this is aside from the real line of the judge’s appeal.  He is all keen enough to take these lots, one and all, in fee simple, but he is fighting against the danger of having them, when thus taken, charged against the right of his clients to an equal share in the distribution of the rest of the nation’s common property.

            For this purpose he has no law to go upon; not a single fiber of equity, of the strength of a spider’s web, upon which to anchor his claim.  Hence, argument is out of the question; there is room only for remark.

            The truth is, the attitude of Judge Stuart before the Indian Committee was unique in the extreme.  It was not that of an attorney convincing his tribunal of the justness of a cause by the irresistible force of manly argument; but rather that of a beggar importuning for alms.  His relation to the boom which he was asking for his clients was in principle, precisely the same as that of a hungry tramp to the morsel which he solicits at the hands of charity.  His appeal was a magnificent display in the practice of mendicancy; it looked as if Jupiter himself had come down from the high heaven of Olympus and had gone to perambulating this lower world among mortals for alms.  It is curious to contemplate the character of the men who are urging this, their suit, for favors so royally at the back-door of Congress.  Is it the poor and the needy?  The widows and orphans?  The lame, halt, blind, insane, or superannuated?  Are they persons belonging to any department of human society legitimately entitled to gratuitous help from the public store?  Not at all; they are men who are always on their first best legs; always in front when there is a dollar in sight; men who are boasting their thousands, and tens of thousands; men who, for the last thirty years, have been in the habit of throwing their lasso over the horns of the Cherokee National Council and leading it, like a poor dumb beast, whithersover they would; men who have successfully baffled all anti-monopolistic legislation until they have got the biggest end of the people’s common domain under their heel.

            The issue they maintain is simply this.  Then comes to be divided a piece of common property equally and fairly among the common owners, among whom they themselves belong; and not satisfied with an equal division, they complacently ask for a bigger share than that of common people, assigning no other reason therefore than a rampant desire for gain.

            What cheek human nature can sometimes display!  Where is conscience?  The cavern of the heart wherein it is said to dwell, must certainly be lined with volcanic cinder!  The hardihood of their demand is enough to make the sooty denizens of the infernal pit hang their heads with chagrin and confess themselves outdone.

 

1 Judge C.B. Stuart: The first United States District Judge and the first Circuit Judge in Indian Territory, he founded a law firm there prior to Oklahoma statehood.     Back

2 According to the Halsell family website, W.E. Halsell was one of the wealthiest men in Vinita in the late 1800s.      Back

3 W.P. Thompson: A mixed-blood Cherokee who owned several slaves.        Back 

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The Indian Chieftain

March 31, 1898

 

“Too-Qua-Stee” in Washington

Two Letters From the “Chieftain’s” Able Correspondent

Vested Rights Recognized – No Indian Governments in Mexico – Fate of the Curtis Bill Problematic – Measure of its Author Taken – Magnanimity of Senator Platt, who will Watch the Railroad Land Grants

Washington , D.C. , March 20, 1898

            Editor Chieftain:  When I left home, I had it in mind to write you, at least, once a week, and keep you and the readers of the Chieftain fully informed as to the state of our affairs at this place; but my attention was early called to the fact that you already had the service of an able correspondent from this place, whose faithfulness and efficiency seemed to render my attention to the subject quite unnecessary; hence, my neglect, so far to write.

            You know, we had heard a great deal about the threatening wrath of Congress that the poor Cherokees had sinned away the day of grace; that nothing remained for them but to await the awful blow from Congress that was to annihilate the nation and sweep our vested rights away like trash over the doorsill; and all that.  But my own observations so far have not confirmed the ground of these apprehensions.  On the contrary, I have found the members of both Houses of Congress invariably courteous and ready and willing to hear whatever propositions we may have to submit in reference to our side of our national problems.  Our vested rights are uniformly respected.  A distinguished senator said to me yesterday, “We don’t want to touch your title to your land; we could not do that, if we would.  But you are terribly, terribly corrupt down there and that state of things cannot be allowed to exist.”  These words of the senator were severe, but at the same time his manner indicated a most kindly feeling for the Cherokees as well as a tender regard for their vested rights.  I do not believe that it is the disposition of Congress to deal harshly with the Cherokees.  And yet, in saying this, I would not be understood as encouraging the idea that there is no danger at hand and nothing to fear; for in my opinion, there is danger at hand, much of it, and on every hand.  But it is not mainly in Congress, but rather on the outside of it.  The idea has become current that the Indian Territory is a vast estate to be disposed of or rather a prize to be raffled for; and the number of gamesters that are competing in order to win, the subtle influences brought to bear to mislead the legislative mind and prevent the administration of justice, are not only amazing, but to one without special culture in that kind of business, quite incomprehensible.

            The friends of that most monstrous of all false pretensions the Delaware’s claim1 have succeeded in getting a provision embodied in the Curtis Bill2, as well as a separate measure to the same effect in the Senate, permitting them to carry their case into the court of claims.  But we should not feel disposed to complain of this move; for the arena in which they challenge us to combat is a fair one and that being the case we have but little to fear.

            The townsiters are here, or rather have been here, begging Congress to give them, as specially deserving fellows, an extra slice of the poor Cherokee people’s common lump of bread and butter.  Nor have their efforts been altogether without success.  To their efforts, directly and indirectly, are due some of the worst features of the Curtis Bill; I allude more especially to the provisions in reference to town sites, with which you are by this time already familiar.  I regard that provision which allows the rich men within the town corporation to put up a poor man’s home and sell it from under him as a thing most cruel and execrable.  I can not believe that it ever got into the bill except by the machinations of the town site lobby.  I have already called the attention of several members of the Indian Committee to the matter, and they frankly admitted the error and confessed themselves ready to have the bill amended.  In reference to this point, consult section fifteen (15) of the bill.3

            There are several other things so obviously unjust to the Cherokees that I hardly think it will be able to go through without a number of amendments; indeed, I should not be surprised if it should be smothered to death by amendments.  Moreover, there is a chance for the bill failing altogether to be called up for action this term; a good many members have so expressed themselves.

            The delegation has taken a flank movement which is likely to produce good results.  They have introduced a bill asking of Congress permission to carry all their grievances into the Supreme Court of the United States for settlement; and it is gratifying to note that many members of Congress have expressed themselves as favorable to the measure.  If we can secure this piece of legislation, you see, it will lift our people out of the hands of the executive and give them a “white man’s” chance before the law a blessing you know, they have never before been allowed to enjoy.

            Word comes to us here that certain persons, who are lending themselves as tools to outside capitalists, are making strenuous efforts to get up an emigration from the Indian Territory to Mexico; they tell the Indians that land there is cheap, and good, and can be secured from the Mexican Government in any quantity and that the emi grant s will be allowed the right of self-government by the authorities of Mexico, etc., etc.  The Cherokee Delegation waited upon the Mexican Minister at this place to ascertain his views of the feasibility of such a scheme; and he said, of course, the President of Mexico would cheerfully welcome any respectable accession to the population of his country; but they must be content to live under the control of the Mexican Government; that a separate and independent colony could not be tolerated.  The news here is that many of the Indians, especially in the Choctaw and Chickasaw Nations, were signing agreements with these emigration fakes; and that they were contemplating a visit to the Cherokee Nation on the same kind of business.  It would be well if the Chieftain, always so faithful to the well being of the Cherokee people, would in this instance also raise its warning voice and admonish the people against this growing and vigorous piece of popular folly.  Mexico is no place for the Cherokees, nor any other race of intelligent civilized men.  Her bananas and pineapples taste well enough when they are once here, but it is the business of fools to go after them.

Too-Qua-Stee.

Washington , D.C. , March 26, 1898

            Editor Chieftain:  Since writing last, we have been enabled to venture some prophecy as to the fate of the famous Curtis Bill.  Yesterday, I had a personal interview with Mr. Curtis in reference to the merits of his bill.  I found that he was a man whose mind was not open to conviction.  When points were made against the justice of his bill which he could not answer, he met the emergency by becoming discourteous.  He professed himself to be much out of patience with the obstinacy of the Cherokees, and (enforcing his words with a profane asseveration) declared that, if the matter was left to him, he would not hear anything more from them; that they were not reliable in matters of good faith; that their delegation promised some time ago that, if he would settle the intruder question with them, they would then treat all right with the Dawes Commission.  I knew nothing of this alleged agreement and could not, of course, answer his arraignment.  Yet, I quietly indulged my doubts as to the correctness of the charge, because I did not believe that there ever had been a delegation at Washington who could have had the hardihood to enter into an agreement so wholly unauthorized by our constituted authorities at Tahlequah.  However, I parried the blow as best I could; I conceded, but softly asked him if he regarded the “intruder question” as now finally settled.  He said he did and added that the Dawes Commission had settled the matter.  But, said I, the intruders are still there.  The action of the Dawes Commission has been, in effect, simply to tell us that these people were intruders, and had no right in the country.  But that was a stifle fact which all the Cherokees well understood, long before the Dawes Commission had a being – long before they ever sat in judgment upon the intruder case.  The action of the Dawes Commission, as to settling the intruder question has proved, so far, a practical nullity.  The intruder question will never be settled until the intruders are removed from the country.  When that is done, said I, then you will have a right to claim performance on part of delegation, and to complain of their failure to treat; and not till then.

            A little reflection, by the way, in the abstract, is here hardly avoidable.  The Curtis Bill deals largely with our vested rights; whereas, it is only the courts of jurisdiction that are usually entrusted with the determination of such questions.  The judge, too, must needs be a man of unbiased mind and motive.  But Mr. Curtis, the nominal author of this measure is an avowed enemy of the Cherokees; and yet, he seems to be by common consent the one above all others selected to set in judgment upon the property rights of the Cherokees.

            If there ever was a time when the Cherokees needed access to the judicial arm of the government, it is now.

            But there is consolation in the thought that the Congress of the United States is not carried in the pocket of such a man as Mr. Curtis; nor is he a fair type of the great body of manhood with whom he is associated.  I have had the honor of an audience with a great many members of either House of Congress and, excepting Mr. Curtis, I have not found one but what expressed himself as being in favor, not only of justice, but even generosity, for the Cherokees.  The danger lies, not in the disposition of Congress, but in a failure on part of the members, especially those who live remotely from our country, to get a clear and practical conception of the issues involved.  Small matters, like the doing up of an Indian tribe, are here attended to not by Congress, but by little committees and subcommittees.  It is unfortunate for us that this is so.

            I had the honor of an interview this morning with that great man, Senator Platt of Connecticut , upon our national affairs.  I found him to be a man of gigantic make, both in statue, mind, and heart.  He says he is determined that, in rehabilitating the territory, the Cherokees shall not lose a single cent of their property; only he says the land must be allotted.  He says he has got his eye on the M. K. & T. Railroad claim for the purpose of shielding the Cherokees from all possible danger in that direction.

            He says there are many things in the Curtis Bill that he is opposed to.  His arguments against it, were even more cogent than anything that I could myself advance.  I think I can safely say that he will not support the bill, but also apt ally oppose it.  The bill may possibly pass the House; but I have no idea that it can ever get through the Senate.

            My call upon Senator Platt was made especially interesting to me because of the very pleasant acquaintance which I made with his excellent wife.  Mrs. Platt is a typical New England lady, highly cultured, polite and graceful, and magnanimously friendly to the Indians.  If she was Senator instead of her husband, I am sure we might count on her vote.  She and her people were well acquainted with the Cornwall Cherokee students and retain many pleasing memories of the Boudenott family.  She made a great many inquiries about them and other distinguished Cherokees.

            When the Curtis Bill has been disposed of will write you again.

1 Delaware ’s claim and Old Delaware per capita case: the Delaware Indians had been removed from Kansas and given the use of 157,000 acres in the Cherokee Nation. Later, this transaction was interpreted as a land purchase. When the Cherokee Nation sold the Outlet, the Delawares claimed per capita payment equaling that of Cherokee citizens.           Back

2 “bill in Congress”:  The Curtis Bill of 1898 passed the House and the Senate on April 14th and blocked any further actions of Indian legislation.     Back  

3 Charles Curtis (1860-1936) and Curtis Act of 1898: Curtis, for whom the Curtis Act of 1898 was named, was part Kaw Indian. He became a representative for the State of Kansas , later became a member of the Indian Affairs Committee, and eventually became Vice President of the United States under Herbert Hoover. The Curtis Act of 1898 included the Five Civilized Tribes (Choctaws, Chickasaws, Creeks, Cherokees, and Seminoles) in the Dawes land allotment process.  This law abolished tribal courts and tribal governments in the Indian Territory, established towns in Indian Territory, and prepared the way for the statehood of Oklahoma . When his allotment of Indian lands came up in 1902, Curtis received 1,600 acres for himself.         Back

 

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Indian Chieftain

April 14, 1898

“View of the Delegates”

The Curtis Bill Now Expected to Become a Law

Washington, D. C.,

Editor Chieftain — The Curtis bill1 passed the house today; that is what we had been expecting all the time. The utmost that we had hoped to accomplish before that body was simply to secure an amendment which would have the effect to mitigate somewhat the hardship of some of the most oppressive provisions of the bill. We did not succeed in obtaining a hearing before the committee of the house; we have been promised and are hoping better things before the Senate committee.

We are having a formidable power to contend with; the Cherokees stand alone in opposition to the bill. The Creek delegation, we think, would be with us, if they were here; but at the present time they are at home in the Territory. The Chickasaws have no representative; nor the Seminoles. Mr. Ainsworth2 is here and seems to speak for the Choctaws; he is pushing the passage of the bill with all his might. Mr. Porter3 of the Creek nation is also here and is zealously acting with Mr. Ainsworth in advocating the passage of the bill. We must of course accord to these gentlemen the credit of being actuated by proper motives; yet, after all nothing seems so out of place as they — men who have been favored by their respective nations with an exceptional measure of proud distinction as well as material well-being — joining hands with the intruder element, the enemies of their country, to urge forward the consummation of a measure which is so obviously unfriendly to the guaranteed right of their respective people. Animadversion in this direction, it is true, might, under ordinary circumstances, be regarded by disinterested persons as gratuitous; yet when we reflect that what these gentlemen are doing in no less damaging to us, the Cherokees, than to their own people, we can not look upon their conduct in the present crisis with feelings of entire indifference.

Since penning the above lines I have seen Senator Pettigrew4, chairman of the Indian committee of the senate, and he informs me that the subcommittee, consisting of Senators Platt5, Jones6, and himself, will take up the Curtis bill for consideration next Tuesday morning, at which time he says he will give the Cherokees a aim to secure a hearing, if possible, before the whole committee; but our success in this endeavor, to say the best of it, seems from the present outlook extremely doubtful. Yet we are anxious to act in this end for what we regard as one very important reason: the members of the subcommittee have long been prominent workers upon our territorial problem, and their views upon the subject are well known to be favorable in many respects to our side of the question. The only thing that can save us from the hardship which the unfriendly views on part of the subcommittee seem to portend, will be the counteracting influence of these members who have hitherto had less to do in the matter, and whose minds are therefore still open to conviction.

It seems to be quite probable that the bill will not get thought the senate without a number of important amendments. Should this prove to be the case, it will have to go back to the house for concurrence, and some time may yet have to elapse before the bill may come to be a law.

The delegation is daily at work. No stone will be left unturned; yet there is no need of disguising the fact; the odds are vastly against us. The Cherokees are standing alone. There is no surrender. The loss attending stupid; cowardly, sordid concession is far worse than the results of defeat.

 

1 Charles Curtis (1860-1936) and Curtis Act of 1898: Curtis, for whom the Curtis Act of 1898 was named, was part Kaw Indian. He became a representative for the State of Kansas , later became a member of the Indian Affairs Committee, and eventually became Vice President of the United States under Herbert Hoover. The Curtis Act of 1898 included the Five Civilized Tribes (Choctaws, Chickasaws, Creeks, Cherokees, and Seminoles) in the Dawes land allotment process.  This law abolished tribal courts and tribal governments in the Indian Territory, established towns in Indian Territory, and prepared the way for the statehood of Oklahoma . When his allotment of Indian lands came up in 1902, Curtis received 1,600 acres for himself.        Back

2 N. B. Ainsworth: Choctaw delegate.      Back 

3 Pleasant Porter: Porter was chief of the Muscogee (Creek) Nation from 1899 until his death in 1907.  He reorganized the Creek school system after the Civil War, was a member of the House of Warriors, and a member of the delegation that negotiated with the Dawes Commission.     Back 

4 Richard Franklin Pettigrew, (1848 - 1926): A lawyer, surveyor, and land developer, Pettigrew represented the Dakota Territory, and after the Dakotas became part of the United States , he was elected to the United States Senate where he served from 1889 to 1901.     Back

5 Thomas Platt, (1833-1910):  Platt, who claimed a connection to Connecticut , was a politician and Representative of New York State.  Back 

6 James Kimbrough Jones: Jones had replaced Henry Dawes as chairman of the powerful Senate Committee in 1893. He was a significant figure in the dismantling of Indian Territory . He was a lawyer, Confederate Army soldier, and a member of the Arkansas State Senate from 1873 to 1879.  Jones served in Congress from 1881 to 1885, and in 1885, he was elected to the United States Senate where he served until 1903.      Back

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Indian Chieftain

April 21, 1898

“Too-Qua-Stee” in Washington

“Cherokee Objections to Two Matters Just Now Timely”

Law of Eminent Domain Sought to be Invoked to our Injury and Also Alleged Equities --- Right of Non-Citizens to Take Part in Municipal Governments Denied.

Too-Qua-Stee

Washington , D. C., April 13, 1898

Editor Chieftain — Through the influence of non-citizens, mostly those who are living in the towns, a bill has been passed by the senate authorizing municipal corporations to condemn and appropriate private property under the law of “eminent domain.”1 The bill has gone to the house and is now pending before that body for action. The delegation regard the provisions of this bill as extremely detrimental to both the political and property rights of the Cherokee people, and are doing all they can reasonably to prevent its passage. Among the reasons urged against it, the simple fact that it is a measure represented, mainly by non-citizens, intruders, is by no means the least important.

The municipal government, that is to say the government of an incorporated town, is essentially a component part of the general government of the state in which the town exists. To vote at a town election, and to hold office in a town government is, in a legal sense, the same as to vote and to hold office in the state government; it is, in either case, the exercise of the highest function of citizenship.

Right here, now, lies a concern which while it seems to be attracting but little attention, should be sufficient to fill the minds of the rightful owners  of the Indian Territory with feelings of alarm. The Dawes commission2, as it is well known, were sent into our country for the purpose of ascertaining who were and who were not intruders; this was done ostensibly as a first step on part of the government toward fulfilling her long neglected obligations to protect the Indians against molestation in the enjoyment of their lands. It was a tardy, yet cheering, sign of the times which we had hoped would prove to be a harbinger of the blessed era when our country would be finally relived of the chronic evil of intrusion. But the movement, so far, has vindicated a claim to nothing more creditable than a mere show. The Dawes commission seems to be well nigh already gone into history; its judgment have practically evaporated into smoke; the bluster has subsided, and the intruders are still resting peacefully at home upon the Indian’s lands, sowing reaping and gathering into barns the rich results of unmitigated fraud and imposition.

But this is not all; while the Dawes commission were making this formal display of an intention to oust these intruders, and to put the Indians in possession of their lands, the Arkansas law3 was put into force in the Indian Territory . When this luminous code moved out of the skies of Arkansas and took its stand over the Indian country, the effect seemed to be much like that of the white cloud that led the holy people in their wandering in the wilderness it was a signal for the people to move on; and so they did move, notwithstanding the Dawes commission and their judgments. The neglect on part of the government to carry into execution the decision of that commission had its legitimate effects upon the popular mind. It was very reasonably construed in to a tacit, yet equally effective declaration on part of the government that her guarantees against intrusion upon the Indians were never to be enforced: that every person who had been denied the blessings of a home and the ordinary chances for a livelihood, by the illiberal institutions of the states, might flee, if he choose, and take refuge in the free land of the Indians. Hence the result of the presence of the Dawes commission in our country has been very greatly to increase, rather than to check, the influx of intruders. It has done more than that; it has conferred upon trespassers on the Indians a semblance of legitimacy; it has had a tendency to quiet the apprehensions of coming justice in the minds of those who have long been in the country, and given a feeling to tranquil assurance to all who might feel disposed to participate in this great permissible wrong. The immigration has been more indiscriminate than ever in the past; it is not confined, as of yore, to the humble tiller of soil strolling for a spot of earth to rest upon; it includes fortune seekers of every imaginable description. They fill up the Indian towns; and in case they fail to find sufficient encouragement for their ambition in these old preoccupied towns, they found new ones and people them to their notion. They incorporate under the Arkansas law. They organize municipal governments. They vote; they elect themselves to office. They enact ordinances and levy taxes; and now they are asking congress to favor them, by means of legislations with the necessary authority and power to take the private property of the Indians, under a pretense of the “eminent domain” law; for the aggrandizement of their colonies.

Now all this is a great wrong upon the Indians. The men who are engaged in this iniquitous business will not deny but that they are doing wrong; but when rallied upon the subject, they only laugh and say, “Nothing to hinder; the Indians are too weak to help themselves; the government has deserted them to our mercy, hence there is no judgment on earth, and that of God is too far off to be feared. On with the trespass!”

Now these new intruder towns are entirely without anything in law to favor their existence; nor is there anything in law to authorize a non-citizen to participate in the administration of a city government, old or new, within the limits of the Indian country. It is true, the Arkansas law in reference to the incorporation of towns is, by authority of the general government, is now in force in the Cherokee nation, but it is an egregious abuse of legal construction to say that it has had the effect to citizenize resident intruders, and qualify them for exercising the political franchise within the Indian country. It is noticeable, however, that in this matter, the minds of very many of our most intelligent Cherokee citizens have been led seriously astray. Some have conceived the idea that the Arkansas law has had the effect to annul our Cherokee town corporation act, and to abolish the corporation that have existed under it; that it was a legal necessity that these old towns should be reincorporated under the Arkansas law. Nor is this the whole of the error; they have gone so far as to imagine that non-citizens; mere intruders, had the right to an equal hand with citizens in the incorporation of these towns and the management of all municipal affairs. This, we have said, is a mistake a very serious mistake; nay a blunder, the effects of which is likely to prove most damaging to the vested rights of the Cherokee people.

The history of the dealings of the government with the Cherokees for the last century at least shows full well the danger of allowing outsiders to acquire the show for a claim upon the common rights and property of the tribe. How often have the Cherokees lost their country simply by letting white people come in and settle upon their lands and thus acquire pretended, equities therein which the so called conscience of the government could not, in the end, disregard. It was such acquired equities as these mainly that caused the government to break us up in Georgia and transport us to the then wilds of the Indian Territory; it was on account of such acquired equities as these that she made us accept the colored people as fellow citizens;  it is on account of such acquired equities as these that the town lot men are claiming an exclusive ownership of all the most valuable spots upon the face of our common domain; and it is on account of such equities as these acquired by the intruders in our country, that the Dawes commission says today they must not be disturbed; and that our Cherokees government must be abolished, and a new and better government must be brought into the country for their special benefit. Time and indulgence, you see, always aims against the Cherokees; the whole science of legal interpretation and construction, it would seem, was invented purposely for besetting the Indian and driving him to the wall.

Now, in view of these things, suppose our Cherokee fellow citizens of Vinita4, and Claremore5, and Tahlequah6, and Fort Gibson7, should join hands (as it seems some are disposed to do) with the non-citizens in those towns in the management of their municipal affairs, would it not be a clear concession to these non-citizens of the right of Cherokee citizenship? And how long, do you think, would this kind of thing have to exist in practice, before these same non-citizens would begin to insist upon their acquired equities in the boon of Cherokee citizenship, claims place on our Cherokee rolls, and an equal distributive share in our public lands and national funds?

It is hardly believable that congress, in extending the incorporation act of the state over the country of the five civilized tribes,  ever at all contemplated these monstrous results; it was never the intention of the act to citizenize anybody or to authorize non-citizens to enjoy and exercise the franchises of Indian citizenship, much less to organize colonies and set up political institutions of their own in the Indian country. The Arkansas law, (now U.S. law) was simply a substitute for the Cherokee law. Of course it came into force with enlarged jurisdiction, but only for the purposes of police. It wrought no modification in the political affairs of the nation. Like all new laws, it was prospective, and not retroactive. It does not require the abandonment of our old town corporations; it simply requires that all towns that shall hereafter come into existence, shall, in order to be legal, be incorporated under the Arkansas law; the political management of these town governments, whether old or new, is left exclusively in the hands of the Cherokee citizens.

We have thus endeavored to point out a spot or two, of dangerous ground upon which our people are just now being called to tread; it is to be hoped that they will take the warning seriously, and resist by all lawful means any and all attempts on the part of non-citizens to meddle with our political affairs, national or municipal.

 

1 law of “eminent domain”: In common law legal systems, eminent domain is the inherent power of the state to expropriate private property or rights to private property without the owner’s consent, whether for its own use or by delegation of the taking power to third parties who will devote it to “public uses,” the most common examples being public utilities or railroads.  In most cases, the owner is reimbursed the assessed value of the property.      Back

2 Dawes Commission: Authorized March 3, 1893 under a rider to an Indian Office appropriation bill and chaired by Henry L. Dawes.  Its purpose was to convince the Five Civilized Tribes to cede their tribal lands through individual plots over to each member signed up on the National Registry or roll under the General Allotment Act of 1887, also known as the Dawes Act.  Individual plots could then be easily purchased from Native Americans for white expansion, and "surplus" land could be opened to white settlement.      Back 

3 Arkansas Law: When Congress dissolved the courts of the tribes and established federal courts in Indian Territory, effective January 1, 1898, civil statutes of the state of Arkansas were extended over the territory. One of the negative results of this action was the Arkansas ’ Law of Descent and Distribution, which questioned the rights of an Indian heir to receive land from a deceased Indian relative. The basic code was Mansfield’s Digest (1884). Another negative result was that framers of the Curtis bill used Mansfield ’s language in the sections dealing with incorporation of towns. The code was hardly adequate for purposes of governing its Indian Territory.     Back  

4 Vinita: A city in the northern Cherokee Nation established at the junction of the first north-south and the first east-west railroads in Indian Territory.     Back

5 Claremore: a town in Cooweescoowee District in the Cherokee Nation.     Back 

6 Tahlequah: Cherokee national capital.       Back

7 Fort Gibson: A city west of Tahlequah, site of a former US military post by that name.   Back  

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Indian Chieftain

June 2, 1898

The Indian's Hard Lot:  The Football of Civilization, Nobody Respects His rights.

"Too-Qua-Stee" Dilates upon the Anomalous Condition of the Indian In Washington - The Treaties a Volume of False Promises.

Washington , May 28, 1898

            Editor Chieftain: -- The Indian now has a hard time of it in Washington .  He is looked upon here somewhat as an outlaw - not indeed a criminal, that is not what we mean exactly - but as a man whose rights (if he can be said to have any at all) have no reliable foundation in law, a man who is politically just what he is, and has what he has, merely as a matter of sufferance; a man whose status in the world is only a question of public policy; a thing which may be this today, and that, or something else, tomorrow, just as the popular choice may chance to require at the hand of arbitrary legislation.  His condition, from a legal standpoint, is truly anomalous; it seems especially so in a land like this, where we have a right to claim and expect for him a state of things much better than this - where, for instance, the light of civilization is so bright and pervasive; and all the fine humanities suggested by the divine law are thought to bloom and fruit so grandly.

            There is something curious in all this; something truly unique.

            There is no class, or race, of men now on the earth who, when they come up to the seat of government on errands of business, have to contend with an array of disadvantages so formidable as those which, on such occasions, usually confront the Indian.  If it be a citizen of the United States, his power of the ballot invests him with respectability, and introduces him at once to favorable attention; if a foreigner, the backing which he has from his home government throws around his person the charm of safety and shelters his rights under the aegis of law; if a stranger from the islands of ocean; he is received with demonstrations of cordiality, and, when civilization has done parading him as a proud trophy of its own missionary benevolence, he is dismissed and sent back to his wave washed home loaded with gifts and Godspeeds.

            But how is it with reference to our own continental Indian, the man without a flag behind him that familiar football of civilization, whose importuning presence at the capital comes up more in the nature of an indictment than a compliment?

            There is and has been for a long time, something of a controversy between him and his Great Father at Washington; and he happens to be in the predicaments of one of those unfortunate sons from whom paternal affection has been withdrawn, and yet of whom are expected nevertheless the usual manifestations of final devotion.  Consequently when he comes to Washington to make known his wants and grievances, the justness of his cause is but a secondary matter, and usually insufficient to secure him a suitable hearing.  The first question which he has to answer is, "How much are you disposed to concede?"  He must need bring along with him a basket, or some such thing, stuffed with conciliatory concessions; otherwise he forfeits the pleasure, as well as the advantage, of a cordial reception at the parental mansion.

            The government wisely, or unwisely, early adopted the policy of dealing with the Indians as with men; that is to say, in matters of intercourse, it respected their rights and, in reference to them, generally deferred to their wishes.  This practice was certainly fair and honorable; yet, it proved to be the origin of all the most perplexing problems that have been met with in the administration of Indian affairs.  During the first years of its existence, the government, in getting along with the Indian tribes endeavored, in general to proceed on the theory of amicable agreement; instances of absolute coercion, though not entirely unknown, were rare.  Many treaties were made with them very solemn in form, and abounding in guarantees purporting to endure forever.  But the arrangements with them attained in this way were not generally in accord with the aggressive spirit of the white population; and however satisfactory they may have seemed to be at first, they soon came to be regarded in every instance, as serious obstructions in the way of legitimate emigration.  Popular clamor arose denouncing them as nuisances and demanding their abrogation; and the government never failed to find itself, in due time, confronted with the alternative of either allowing these treaties to be shamefully overridden by the lawless multitude, or to save his honor by securing amicable concessions from the Indians.  This practice from a moral point of view, proved to be correct, in many instance, only in theory; for many of these "amicable" concessions were obtained by the most galling of coercive measures.  Indeed, the most of these so-called treaties seem to have been made for the sake rather of guarding the good name of history, than for the benefit of the Indians.  Though appearing to be exceeding fair upon the printed page, there are but few of them but what, if tested by the rules of equity in a court of competent jurisdiction, would be annulled on the ground of fraud and duress.

            Speaking more particularly in reference to the Cherokees - there was a time in their early history when it was quite an easy matter for them to comply with these periodical demands for concession in a way that was really magnificent - when they were rich and the United States was young and poor.  In those early days of thoughtless affluence, ere the malignant beam of fortune had been tipped the other way, they were in the habit of regarding it as but a light thing to bring along now a state, and then a state, and again, and again a state, and throw them down as love-gifts at the feet of the stripling who was soon to fallen upon their liberality, grow mighty and finally arrogate to himself the mastery of his old host and benefactor. In this way, it was, that Virginia the mother of presidents, was "conceded," in the same way, too, the Carolinas were "conceded"; and Georgia, the golden, and wild Kentucky, with Alabama, the beautiful land plenty and rest, were all "conceded."  And yet, in return for all these imperial benefactions at the hand of the Cherokees, what have they ever received but a transient simile of ungrateful satisfaction, and a wretched little volume of false promises called treaties?

            But the time came at length, in the course of years, when it was deemed by the Cherokees that this extravagant species of liberality had needs to be discontinued.  It had been found to be trenching so seriously upon the amplitude of their original domain, that the motives of self preservation suggested with much emphasis the impracticability of further "concessions," they could give no more.  "Concessions," with them, came to bear the significance of expatriation, impoverishment, starvation, beggary, and despised tramphood strolling form door to door in quest of ill-paid labor and poor bread.

            In their new home west of the Mississippi , they had been inducted by the flattering promises of the government, to entertain very cheerful hopes of a future eternity of repose; but in this also they were deluded.  The old demand for "concession," like a trailing spectre, hung upon their heels, and, at the close of the late war, found out their retreat and set upon them with renewed and quite unexampled ferocity.  At the first note of alarm, heralding the breaking out of hostilities, the government hastened to withdraw her troops from the south, leaving her helpless wards, the Cherokees, to shift for themselves in the heart of the Southern Confederacy.  At the close of the struggle, Congress professed itself to be seriously offended with them, because they had, in the meantime, failed to keep the Union flag aloft-over ground upon which even Mr. Lincoln's armies had deemed it unsafe, at the time, to bivouac for a single night.  The result was, they had to "concede" the western half of their country as a penalty for disloyalty.  Nor was this the whole of the most unjust and unreasonable punishment.  The Cherokee were at this time, owning a handsome tract of eight hundred thousand acres, lying, like a jewel, snug down in the southeastern corner of the state of Kansas ; this was included in the penalty, and had to be "conceded" accordingly.  Nor was this the whole of it.  It was found that those ancient surveyors who ran the western boundary line of the state of Arkansas and the southeastern line of Kansas, had made a mistake, fixing the former, in many important places, much too far toward the east, and the latter throughout, some miles too far to the north.  Hence it came to pass, apparently as an uncontrived necessity, that, when these two lines were connected by the modern sticklers for "concession," the Cherokees found that they had again to "concede" many thousand additional acres, to be shared by these two sales in proportion to the gravity of the wrong which had been practiced upon them respectively in the old survey.  Nor was this all; the penalty was still further enlarged in the following manner.

            The Cherokees were required by the government to assent to the construction of as many, at least, as two railroads through their lands, and to "concede" to these, corporations as a mere gratuity, all and whatever of their reality that might be needed for such a purpose.  This, however, was but a little matter compared with the magnitude of the injustice by which this measure was subsequently supplemented.  Congress, without the knowledge or consent of the Cherokees, and in violation of the most sacred forms of plighted faith, made a conditional free gift to one of these corporations of about eight hundred thousand acres in the very center of the Cherokee home lands.  Now, the government had, for valuable consideration, engaged with the Cherokees to keep them in peaceful possession of this, their home tract for all time to come; but instead of observing this promise, she in this way virtually subsidized one of the most powerful agencies on earth to annoy them without ceasing.  Accordingly, for the last thirty years, this corporation has been tireless in contriving schemes for the bringing about of that specified condition the extinguishment of the Cherokee titles which, according to the terms of the grant, was to perfect its own title and give it possession of these Cherokee lands; while during the same long period of tedious years, the harassing apprehension, kept ever alive by the threatened consummation of this great wrong, has never allowed these people the enjoyment of a single hour of undisturbed repose. 

            But all the "concessions" so far made by the Cherokees, however extensive, were not enough.  Accordingly, at a late day, the Dawes commission was authorized to pay them a visit with propositions asking them to "concede" some more.  They said, "We have not come to discuss with you the questions of your rights, we have come simply to tell you what the government wants of you.  It desires you to "concede" the abolition of your tribal existence, to allot your lands, and become citizens of the United States, and the less fault you can find, and the quicker you can come to terms with our commissions, the better, far the better it will be for you, for if you defer, and prove so unfortunate as to fall into the hands of Congress, you will be sure to be made to feel all the rough treatment due to your folly."

            These dishonorable, and yet very tearful, words of prophecy are just now seeming to have been only too true.  The Cherokees refused to "concede;" hence they are enjoying at Washington just now the reputation of being a bad set of Indians, the most "unconceding" and impracticable tribe on the continent.  On this account, while the reconciled countenance of the great Father is dispensing the smiles of summer in every other direction, the Cherokees are left out to shiver alone in the dreary winter of disapprobation.  Be assured, the chilliest thing that the Indian has to encounter in this world, is the "cold shoulder" of his great Father at Washington ; it is the frostiest thing imaginable.

            With these words it had been the mind of the writer to close this article, but just now word comes to him that the senate committee of Indian affairs has finished its review of the Curtis bill1 and that the results of their labor is now before the senate.  In some respects, they have improved it, in others, they have most unfortunately degraded it.  It is hardly credible yet, it is true as the Decalogue2, they have admitted a section confirming that fraudulent and most infamous Clifton3 freedom role.  With the unquestionable evidences of its infamy in writing now on file in the office of the Secretary of the Interior.  It is hardly thinkable that it can possibly become a law.  The section will undoubtedly be stricken out.  It is well known in all quarters that should that roll be confirmed by legislation, the mouth of hideous pit of corruption would be closed forever; a pit which might otherwise continue to send up its stench and stink through the annals of all future history.

            Let it be conceded that the Cherokees showed themselves to be bad boys in declining to treat with the Dawes commission; let it also be admitted that the great Father has had some good ground for the exercise of parental displeasure, yet there is, in the nature things, no vanity of ill humor possible that could justify him in treating his helpless children unjustly.

 

1 Charles Curtis (1860-1936) and Curtis Act of 1898: Curtis, for whom the Curtis Act of 1898 was named, was part Kaw Indian. He became a representative for the State of Kansas , later became a member of the Indian Affairs Committee, and eventually became Vice President of the United States under Herbert Hoover. The Curtis Act of 1898 included the Five Civilized Tribes (Choctaws, Chickasaws, Creeks, Cherokees, and Seminoles) in the Dawes land allotment process.  This law abolished tribal courts and tribal governments in the Indian Territory, established towns in Indian Territory, and prepared the way for the statehood of Oklahoma . When his allotment of Indian lands came up in 1902, Curtis received 1,600 acres for himself.       Back

2 Decalogue: The Ten Commandments.      Back

3 Clifton R. Breckenridge:  Breckenridge served in the U. S. House of Representatives for the 2nd District of Arkansas from 1883 to 1889.      Back

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Indian Chieftain

July 7, 1898

“Admission of the Government’s Bad Faith with the Cherokees”

Only One Man in the United States Senate to Stand Up and Declare Against the Great Wrong Being Perpetrated

Editor Chieftain: Moral frailty is a universal defect in human character. There is no magnitude of organization; no sacredness of official function; no weight of responsibility; no species of environment; no possible arrangement among men, that can be implicitly relied upon as an absolute safeguard against the machinations of selfishness. For one to die for another may be god-like, but it certainly is not man like. Every man, when subjected to the final test, generally prefers himself to all others. Right, in the world, without the power of self defense, or the means of enforcing its own claims, is only food for wrong to feed on.

Such were the thoughts that sprang up spontaneously and dominated our faculties as we sat a few days since in the gallery of the United States senate and gazed down upon the drama that was being played off on the floor below us. The Curtis bill1 was under consideration. This was a measure which had originated in the lower house and having been contrived (as alleged) by Mr. Curtis of Kansas , it had been very appropriately christened the “Curtis bill;” it was a proposition asking for the enactment of a law repudiating the treaties which had been negotiated with the five nations of the Indian Territory2.

The government of the United States had been, from the beginning of its existence, in the habit of negotiating with these nations, from time to time, amicable arrangements which generally required of them the immediate surrender of very valuable considerations — usually an exorbitant cession of territory, and that sometimes attended with an obligation on part of the people to leave their native ground and emigrate in some distant and uncongenial place of abode; while that which came to them in return consisted, for the most part, of mere guarantees on paper, whose value lay exclusively in the faithfulness of their fulfillment. These stipulations, however, were seldom, (almost never) carried out; when the object for which the deal had been instituted, was attained, they were allowed to drop at once into hopeless oblivion and sleep the long years away as dead matter in the archives of the government; while, in the meantime, generation after generation of the Indians came and went without ever enjoying the least imaginable benefit from their bargain. There was nothing that could ever induce the government to bestow upon these sacred obligations the least attention whatever, except when, in the course of time, their existence came to be a matter of dread, as a legal obstruction in the way of some new departure in the ever shifting current of public policy; and even then the consideration accorded to them had reference more to their abatement as nuisances, than to their fulfillment as real engagements. These old unfulfilled promises, however, were known to be standing as a perpetual menace to the good name of all Americans’ future history; they were besides in the habit of making themselves not a little noisy in their continuous, though unavailing, outcry against this unwarranted neglect of them on part of the government. Hence as a preliminary step in the execution of any new design upon the Indians, it was generally deemed to be expedient that all former unfilled agreements of every description should be cleared out of the way giving the past, up to date, a fair and unexceptionable standing on the historic page. This precautionary work was usually accomplished in one, or the other, of two ways; either by fulfillment, or amicable recision3. The latter method, when practicable, was usually adopted; otherwise the former came in play as a last resort. At such times, in order to meet the emergency, and, at the same time, to inspire the Indians with the needful willingness to treat and trust, the overtures for the new deal were generally accompanied with renewed promises, as additional considerations, for the early fulfillment of the old, neglected, outstanding guarantees. But no sooner had the new treaty been concluded, than it was overtaken by the same untoward fate which had befallen all of its kind that had gone before it; and the new pledges also went into the same grave where mouldered the remains of the old promises themselves for the fulfillment of which they had been so hopefully made.

At length, under the teaching of experience, common sense began to assert its legitimate sway over the Indian mind. Conviction rebelled against the authority of volition; and the red men found themselves no longer able, when they would have done so, to repose in the words of the government that measure of confidence which was essential to the process of amicable negotiation.

In this state of mind the Cherokees were found to be, when that embassy known as the Dawes commission4, appeared in their country with propositions inviting them to the negotiation of a new treaty.

It had been only a short time before this that the agreement was concluded which ceded to the government a tract of more than six million acres of land known as the Cherokee Outlet5. This transaction had not been altogether a matter of free choice with the Indians; it was the result rather of certain constraining circumstances which had been allowed to accumulate around them by the neglect of the government to comply with its treaty obligations. The United States, as early as

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tions, undertaken to protect the Cherokees against intrusion; but for fifteen years, this stipulation had been absolutely neglected by the government; while in the meantime, the influx of white people into the Cherokee country had been so exorbitant that their presence had begun much to interfere with the Indians in their enjoyment of their soil; and their removal had come to be, in the minds of the latter, an object of necessity as well as supreme desire. Hence it proved that the most enticing considerations which the government could possible offer for a cession of the outlet, was a cordial renewal of its old promise of 1835. Accordingly, an agreement was very easily reached wherein the government covenanted that the intruders should be immediately ejected from the reserved lands of the Cherokees, and that their removal should be regarded as a consideration, in part, for the territory acquired. After the deal had been completed, however, and the government had got control of the land and disposed of it to white settlers, the Cherokees where notified that the removal of the intruders was, on account of the greatness of the number of people involved, an undertaking too difficult and expensive to be seriously contemplated. As a result of this remarkable default on part of the government, the Cherokees lost their land, a princely domain, and no indemnity has as yet, ever been heard of.

This singular ease with which the obligations contracted with an Indian tribe are want to rest upon the private conscience was subsequently illustrated with much force in the words of the chairman of the Indian committee of the senate. The Cherokee delegation were insisting, at an interview with the committee, upon the fulfillment of this late double decked engagement against intrusion, which he replied curtly to their remarks: “Gentleman, the government has never fulfilled that agreement; and it never intends to do it.” There was no explanation given and the Indians were left to surmise whether, or not, the whole truth might not have been more completely declared, had the honorable senator been pleased to put his verbs in the past instead of the present tense. Can it be that the government never intended to make good that agreement?

At the moment the Dawes commission waited upon the Cherokees, in the minds of the latter, the very last spark of confidence in the words of the government had been thoroughly extinguished. The overtures of the commission looking to the stipulation of a new treaty were answered by them unanimously in the negative.

“What is the use,” they said, “of making any more treaties while the many which we have already made are allowed to lie sleeping in the books forever unfulfilled?”

The Curtis bill had bee prepared with a view to the accomplishment of a two-fold purpose. The Cherokees had been duly warned by the Dawes commission that, in case they should fail to treat with them, the incident would be regarded as an offense of sufficient gravity to call down upon them the hot displeasure of congress. Now, while it is not reasonable to imagine that the effects of such a dereliction could really pervade the congressional membership in general to much extent, it is nevertheless pretty certain that in the Indian committee of the lower house, where the bill originated, it proved to be the occasion for giving the measure very clearly something of the nature of a penal sentence in addition to its avowed purpose as a civil regulation. It had not the moral courage to repudiate, in terms, all treaties with the Cherokees; it simply proceeded just as if they had never existed, at the same time discriminating severely against the Indians, and decidedly in favor of the intruders and all other outside classes that chose to interest themselves in the question.

In the meantime, the senate chamber was well nigh deserted. In the congress of the United States , justice and right are not estimated according to their own intrinsic merit; but with reference rather to the circumstances with which they come environed when they knock for a hearing.

America shed rivers of tears over the downfall of Poland . She also wept bitterly over the woes of Hungary , and lionized her exited hero from ocean to ocean. And today her fleets are abroad upon the seas of both hemispheres, at an expense of millions per day, in defense of the Cubans against Spanish wrong; but right there upon the floor of the American congress, was proceeding to consummation an outrage equal to either of these in enormity while, at the same time, there were nine tenths of the members of that body who did not deem it a matter of sufficient importance to merit a single moment of their serious consideration. The secret of this singular apathy on part of the senate is undoubtedly to be looked for in the sordid tone of the times in which we live. The affair, in this case, was simply a struggle between right and wrong; a little legislative tragedy in which the amount of men, money and ammunition was too small to make the play entertaining.

But this state of senatorial indifference was not altogether without exception. There were six senators who made a show of some interest in the fate of the bill; five were in favor of its passage, and were concerned only in reference to a few amendments which they deemed to be needful; and one was opposed to the measure as a whole. The rest sat in their places and read, and faithfully maintained the show of a quorum, through apparently unconscious of what was going on

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tive work seemed to be left entirely in the hands of the chairman of the Indian committee and the president of the senate. The former stood for nearly an hour simply announcing amendments and modifications of the bill, while the latter took them up in order as they came and in an absent minded way, put them to a vote and, without lifting his eyes from his reading, pronounced them “carried” without a single vote being heard anywhere.  It was an easygoing and doubtless an enjoyable affair for the fellows who were after the Indian’s scalp; but it was death to the Indian. It is strange that nectar and wormwood should be found growing so near together in this lower world wildwood of mortals.

But the value of a jewel lies largely in the rareness of the mineral in which is consists. It is on this principle that candor and conscience, when discovered, look so charming upon the floors of congress. Every member of congress usually has his own pocket full of little jobs in which his soul is so deeply absorbed that he can think of nothing else. He has no legislative energy to squander on any other cause, no matter how meritorious it may be. Hence he regards himself generally furloughed from care until the moment comes round in the schedule of time when the legislative mill begins to grind on his own little grist; he is then usually present to the full vigor of life, foaming in a roaring speech, looking after his toll.

But to this unhappy congressional aspect there was at least one grand exception. There was one senator whose moral greatness unquestionably transcended the limits of all these mean measures a right prescribed by power and policy; whose conception of justice and honor rose to the altitude of divinity itself. He was an old man; his head was as white as an eagle’s, and sat upon his broad stoop shoulders like a veritable crown of glory. He had listened with patience to the miserable shuffling arguments in justification of the government’s bad faith in violating her treaties with the Cherokees, when he rose at his place in the senate and, in a tone of voice and dignity of manner that wielded a tornado of unconscious eloquence said:

“Mr. President, I think this bill is wrong. I think it is in violation of all the treaties that have ever been made with these Indians by this government. It overrides moral and legal obligations. The whole thing is wrong. I have the treaties here with me which I could read if necessary; but they have already been read, and the case is well understood to be as I state it. I protest against the passage of this bill.”

The Cherokees are but a little folk, not much in a bear fight, but when it comes to an exercise in the sentiment of gratitude, they are nowhere to be outdone upon the face of the earth. When the “Indian problem” is “solved;” that is to say, when the Cherokees as a distinctive community have been long forgotten, and the poor people who once wore the name have long been on the duty assigned them on the walks of poverty and contempt by the merciless degrees of civilization, they will doubtless, in their wretchedness visit the tomb of Senator Bate6; of Tennessee and, dropping a tear of remembrance, say he was a friend to us in our adversity, when all the world was against us, but he died.”

1 The Curtis Act of 1898 included the Five Civilized Tribes (Choctaws, Chickasaws, Creeks, Cherokees, and Seminoles) in the Dawes land allotment process.  This law abolished tribal courts and tribal governments in the Indian Territory, established towns in Indian Territory, and prepared the way for the statehood of Oklahoma . When his allotment of Indian lands came up in 1902, Curtis received 1,600 acres for himself.     Back

2 Five nations of the Indian Terri tory : The Five Civilized Tribes is a term applied to the Muscogee (Creeks), Chickasaws, Seminoles, Choctaws, and Cherokees.  They were considered "civilized" by white society because they had adopted many of the colonists' customs and had generally good relations with their neighbors.      Back

3 Recision: annulment       Back

4 Dawes Commission: Authorized March 3, 1893 under a rider to an Indian Office appropriation bill and chaired by Henry L. Dawes.  Its purpose was to convince the Five Civilized Tribes to cede their tribal lands through individual plots over to each member signed up on the National Registry or roll under the General Allotment Act of 1887, also known as the Dawes Act.  Individual plots could then be easily purchased from Native Americans for white expansion, and "surplus" land could be opened to white settlement.    Back 

5 Cherokee Outlet: sometimes erroneously referred to as the Cherokee Strip, the Outlet was located in Indian Territory .  It was a sixty-mile (97 km) wide strip of land south of the Oklahoma-Kansas border between the 96th and 100th meridians. It was about 225 miles (362 km) long and in 1891 contained 8,144,682.91 acres (32,960 km²).       Back 

6 William Brimage Bate (1826 - 1905): Bate was a member of the Tennessee House of Representatives from 1849 to 1851. He was also the Governor of Tennessee from 1883 to 1887 and a U. S. Senator from 1887 to 1905 where he served as the chairman of the Committee on the Improvement of the  Mississippi River.      Back

Charles Curtis (1860-1936) and Curtis Act of 1898: Curtis, for whom the Curtis Act of 1898 was named, was part Kaw Indian. He became a representative for the State of Kansas , later became a member of the Indian Affairs Committee, and eventually became Vice President of the United States under Herbert Hoover.     Back

 

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Indian Chieftain

July 21, 1898

Evils of the Curtis Bill: A Reckless Disregard of Existing Contracts, Etc.

Many Inconsistencies and an Utter Absence of Compensating Benefits in this new Indian Territory Law.

            Editor Chieftain: -- The Curtis law1 is an unparalleled piece of legislative tyranny; and being tyrannical, it is necessarily unjust.  Its very title, "For the Protection of the People of Indian Territory," is insincere and delusive.  No sane mind can be made to believe that the actuating motive of this law was any desire to protect the people of this territory.  Its provisions for any purpose of that kind are so inadequate that, from such a point of view, the act would be seriously derogatory to the common sense of congress.  The members of that great body may be unjust, but they are not fools.

            This remark of course, is based upon the inference that the Indian population of this territory, was to be taken into the account in planning this scheme of protection.

            Look at the matter for a moment in the light of common sense.

            The Cherokees constitute one of the oldest political communities on the American continent.  Their institutions (many of them) are older than those of the United States .  Their various fortunes, amounting in the aggregate to millions of dollars, have all been built up under these same institutions.  The wealth of these people is dependent upon these same institutions for its protection and security.  But now comes along the Curtis law and says these Cherokee institutions shall no longer exist; they must be abolished and those of the state of Arkansas must be substituted in their stead.  It is June, and now what is the result?  The Cherokee law as to the rate of interest on loans, for instance, is not to be enforced; a condition as far as the business of this country is concerned, even more disastrous, in legal effect, than abrogation.  The effect of this provision is not as usual with normal legislation exclusively prospective, but exclusively retro-active.  All agreements heretofore made by Cherokees in dealing among themselves – all agreements as to the rate of interest are no longer binding.  The rate may have been legal under the Cherokee law; but that law now no longer exists. Under the Arkansas law, this agreed rate may be usurious and uncollectible.  And, this is not the whole of the case; should the Cherokee creditor attempt to collect his claim by appealing to the Arkansas law, what would then be to save him from defeat, a bill of costs and the moral disgrace of a usurer?

            But there is another curious thing about this absurd Curtis law as bearing upon the construction and force of contracts.  It is admitted that the Cherokee law has heretofore been in existence; hence all contracts that have been made (certainly those made by and between Cherokee citizens) must be interpreted according to the Cherokee law, the law of the place.  It was in reference to this law that the parties entered into the contract; this local, Cherokee law is, in effect, a part and parcel of the agreement.  But this Cherokee law is now no more to be enforced; it is dead: the Curtis law has killed it.  This contract must now be construed by the courts according to the Arkansas law.  The Arkansas law has now come to be a part of the contract instead of the Cherokee law.  That is to say, this Curtis law has had the effect to transform the original agreement between the parties and make it something different from what it was, in contemplation of law, intended to be.

            In this way, it is obvious, this Curtis law, by rendering our Cherokee laws unenforceable, has upset and undone all the business relations existent in our Cherokee civilization.

            Again, the landed interests of the Cherokee people are peculiar; there is nothing like them in the states.  Our land does not belong to the nation; hence it is not public land.  It belongs rather to the Cherokee people; it is therefore what is called "land in common."  Our Cherokee land laws have all been suggested by the exigencies incident to this peculiar kind of landed property, and have been hitherto kept in force as the best means for securing the common enjoyment.  But this Curtis law says these, our Cherokee land laws, shall no longer exist; but the Arkansas land law, a law which practically knows nothing about "land in common," shall come into our country and regulate all our landed interests according to its own narrow, selfish monopolistic principles.

            Now when we reflect that all the wealth and well being of the Cherokee people accumulated by the industry and economy of a thousand years have been founded upon the idea of land in common, it will not be difficult for any discerning mind to conceive of an untold multitude of abuses that must necessarily arise from this arbitrary and most reckless revolution in our laws of real estate.  Time just now will not permit us to dilate upon this thought; let a single little illustration suffice, and we pass.

            The Cherokee land laws give each settler a reserve of one quarter of a mile around his improvement; this provision of law was approved by the Cherokee as wise and good.  But there was no such thing as that known in the Arkansas law.  What now as to the result.  The Curtis bill was signed by the president of the 28th of June; this is the 10th of July; and yet, even so soon, intrusion has commenced its high handed depredation upon these reserves, and the Cherokee citizen is compelled, under the ban of the Cherokee law, to sit mute and see his ancient premises despoiled of their most valuable appurtenances and in many cases, the chief source of their value.

            It would seem that the men who made this law had some appreciation of those results; and as a means of palliating the evil, devised the scheme of allotment.  "It is true," they said, "a system of land in common cannot be administered according to the doctrines of land in severalty; but we will make the Cherokees conform their system to the new rules and take their land in severalty."

            Such, then, is the remedy for this generation of evils born of the Curtis law.  But what of allotment as a remedial agent?  Let us see.  It was conceived of in the first place as a remedy for the nomadic habits of the wild tribes of the western prairies: in its origin, it seems to have had some good sense about it; for, to put it into force out there, consisted simply of catching up a wild man, setting him down on a good hundred and sixty acre patch of land, teaching him how to build a house, to till the soil, to make an honest living, be honorable and happy.  There was something benignly practical in all this.  But what of such a process when it comes to be applied to an organized and long settled community like the Cherokees?  The people here are living in established homes, are industrious, economical, and just as much devoted to civilized institutions as the inhabitants of any state in the union.  Allotment among the Cherokees implies the breaking up of old established homes, the readjustment of boundary lines, the unsettling of society, the general wrecking of a proud and hopeful state of public and private prosperity; a general return in a word, to those long past elemental conditions of human comfort through which we have once toiled, and from which we have so triumphantly emerged to fight the battles of pioneerism over again; the stoutest soul recoils from the contemplation of such an ordeal.

            And still more. These Cherokee laws are not to be enforced; practically, they are to be, for the future, just as though they had never existed.  The past, among the Cherokee people is to be, for the future, just as though they had never existed. The past, among the Cherokee people, is to be, for the future, regarded and treated by the courts of judicature as an era of absolute lawlessness.  Our Cherokee laws regulating the relation of the sexes are not only repealed by this vandalic Curtis law, but they are swept away into annihilation for all the past, as well as the future; and all this without the least vestige of a saving clause in the interest of past conditions.  The nefarious, tyrannical, Curtis law dishonors the social life of our people; it invades the domestic circle, abolishes the institution of marriage, it stigmatizes our happy homes as mere places of brutal cohabitation, it bastardizes our children, and reduces all the noble fathers and mothers of our country to the moral condition of pimps and prostitutes.

No; there was a better way for dealing with this territorial question; a better way, we say.  It is our intention to speak more fully of this "better way" in our next article.

1 Charles Curtis (1860-1936) and Curtis Act of 1898: Curtis, for whom the Curtis Act of 1898 was named, was part Kaw Indian. He became a representative for the State of Kansas , later became a member of the Indian Affairs Committee, and eventually became Vice President of the United States under Herbert Hoover. The Curtis Act of 1898 included the Five Civilized Tribes (Choctaws, Chickasaws, Creeks, Cherokees, and Seminoles) in the Dawes land allotment process.  This law abolished tribal courts and tribal governments in the Indian Territory, established towns in Indian Territory, and prepared the way for the statehood of Oklahoma . When his allotment of Indian lands came up in 1902, Curtis received 1,600 acres for himself.       Back

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Indian Chieftain

August 4, 1898

Too-Qua-Stee's Rejoinder: Pleads Not Guilty to Charge of Using Unwarranted Language

            Editor Chieftain: -- It seems that my friend, Hon. Robt. L. Owen1, has tendered me, through the columns of your last issue, a little courteous notification to the effect that I am in error in reference to the operations of the Curtis law2 upon the matrimonial relations of the citizen people of this territory.  Now, I know of no one with whom I should more regret to differ in opinion, or to whom I would more willingly make acknowledgments for any offensive blunder that I might make than to my distinguished friend.  But what if "Too-Qua-Stee" should be found to be correct in his opinion?  Could his declaration of the truth be properly regarded as "intemperate?"  Would my friend have his readers believe that "Too-Qua-Stee" is speaking simply to give vent to a rebellious volume of pent-up "sentiment?"  That what he says is not only "improvident" but "apparently the language passion" and calculated to "obscure the issue," instead of casting light upon it?

            Now, I assert here, the truth is what I am after in this controversy, and I care not to what length the pursuit may lead me, provided only I am on the right trail.  The object of this little communication is simply to take my reckoning and ascertain whether or not, I have been going wrong; whether in my denunciations of the Curtis law, I have been "intemperate," drunk crazy, you know.

            Section 29 of the act reads as follows:

            "That on and after the passage of this act, the laws of the various tribes or nations of Indians shall not be enforced at law or in equity by the courts of the United States in the Indian Territory."

            Section 31, again reads as follows: "That on the first day of July, 1898, all tribal courts in the Indian Territory shall be abolished."

            Now the first day of July, 1898, has slipped away; this law has taken effect; our Indian courts are no more.

            We are, then, in this kind of legal predicament: we have no Indian or tribal laws; nor have we any Indian or tribal courts, to enforce such laws, if we had them; and yet I think my friend will not controvert the proposition when I assert that all the marriages, or very nearly all, among the citizen people of this territory, are dependent for their legitimacy upon these Indian or tribal laws, which, according to the Curtis act, are never in future to be enforced, either in law or in equity, in the United States courts of this territory.  Now, suppose a case; that the legitimacy of my friend's marriage should be, by chance brought into question in one of the United States courts of his territory.  To sustain his case he would undoubtedly be driven to rely exclusively upon the Indian, or tribal law of his nation, "regulating marriages."  But the Curtis law says in effect, that this tribal law "regulating marriages" shall not be heard of in court.  His predicament would certainly be somewhat embarrassing to say the least of it.  If he was ever legally married, he would not be allowed to show it, because that would be enforcing the Indian law.  And yet, it would be that he had been indeed married, his matrimonial alliance being evidence by the presence of a charming wife, and a happy home full of sweet little children.

            Now, in view of this state of facts, the question which I wish to ask my friend is this:

            What in contemplation of law and morals is the social status of a couple, who have come together and founded a family without being able to show that they were ever legally married?

            This is the condition to which the Curtis law has reduced the excellent married people of all this country.  That is the way I mean to say, "Too-Qua-Stee" looks at it and now if my friend, Mr. Owens will, by a clear and unmistakable statement of facts and principles, show me a better, a more lovely what to view this matter, so that the thing can be made to seem really a doyen instead of a devil, (as I believe it is,) I shall certainly be very grateful to him.  My mind, I believe, is open to instruction, but I do not feel disposed to yield acquiescence in another's opinions simply to avoid the charge of inordinate "sentiment," "improvidence," and violent passion. I am not one of those who believe that wrong and robbery should be bleat with immunity on the ground that an exposure might disturb the equipoise of dignified sensibility.

1 Col. Robert L. Owen, (1856 - 1947): Owen was a teacher, lawyer, federal Indian agent for the Five Civilized Tribes, member of the Democratic National Committee, president of the First National Bank of Muskogee, and a Democratic U. S. Senator.     Back

2  Charles Curtis (1860-1936) and Curtis Act of 1898: Curtis, for whom the Curtis Act of 1898 was named, was part Kaw Indian. He became a representative for the State of Kansas , later became a member of the Indian Affairs Committee, and eventually became Vice President of the United States under Herbert Hoover. The Curtis Act of 1898 included the Five Civilized Tribes (Choctaws, Chickasaws, Creeks, Cherokees, and Seminoles) in the Dawes land allotment process.  This law abolished tribal courts and tribal governments in the Indian Territory, established towns in Indian Territory, and prepared the way for the statehood of Oklahoma . When his allotment of Indian lands came up in 1902, Curtis received 1,600 acres for himself.       Back

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Indian Chieftain

August 18, 1898

Conscience Set Aside: The Shortest Way and Not the Better One Chosen .

            Editor Chieftain: -- In my last communication I spoke of a "better way," and promised then to speak of it more fully in my next.

            By the "better way," I simply mean that fair and humane policy which the government might have pursued in dealing with the Cherokees instead of that one of harshness and severity so signally illustrated in the letter and spirit of the Curtis law1.  This "better way," of course, implies that the government should have observed and enforced, instead of over-riding our Indian treaties.

            There is a class of minds, we know, that habitually make a great deal of what they call "practical common sense;" they disdain to be known as being possessed of any other kind, and usually smile at any allusion to the rules of morality and religion in the discussion of legal and political propositions.  They hold that goodness is not business; that sentiment in this Indian controversy is not only useless but quite out of place.  "No use to grieve over spilt milk," they say, "better accept the situation, and say nothing more about it."  "The thing has been gone and did, and that's an end on it."

            Not so, however, exactly; when a bad thing has been done, and an evil end, like the Curtis law, for instance, has been attained, these geniuses of "practical common sense" may, it is true, allow the transaction to slip soon, and very quietly, out of mind.  But (let it not be forgotten) history has a most lively conscience; it can never forgive nor forget; it has claims in such cases which it will always heroically insist upon in the interest of posterity.

            In pointing out the "better way" it will, of course, be necessary to contemplate the matter from a moral stand point; to turn upon it an arc light of a natural conscience; that is to say we must look at it though the eyes of the Indian himself, through eyes whose esthetical vision has not been perverted by the dogmas of civilization.  We concede, however, that before proceeding, it may be mete, we should tender some acknowledgment to the vogue for so abrupt an attempt, (so unique and unprecedented,) to claim for an Indian tribe the benefit of an argument founded solely upon the doctrine of abstract right, instead of expediency and public policy.

            When the government of the United States, but a few decades ago, deigned to meet the Cherokees around their rural council fire, and smoke with them the historic pipe of peace and friendship and in the soft twilight of those successive evenings (those fatal hours specially set apart by nature for the breeding of confidence and the conquests of love) wooed them into these solemn treaty agreements, they, the Cherokees, had or at least thought they had, the very best reasons in the world for believing that the promises and pledges which they were receiving were not only reliable, but absolutely incapable of failure.

            The ground of this fond delusion was various and very peculiar.  In the first place, the men who had been selected to do this malignant courting were instruments exceedingly well adapted to the work which they had to accomplish – well clothed upon with an outfit of all those affected graces which so often lead confiding innocence astray.  They had been largely advertised as men of great wisdom, magnanimity and moral integrity; and the Indians were entreated, from all sources, to trustfully regard them in that light.  The chairman of the negotiating committee had been selected on account of the special fitness which he was supposed to possess by virtue of his religion; he was a minister of the gospel.  To which denomination he belonged it is deemed unnecessary here, and now, to declare; indeed it might prove to be under the circumstances, not a little ungracious to do so; for while there are few churches that have not, at one time or another, and in divers ways, made themselves helpful in originating these Indian treaties, it is to be presumed that there are now still fewer, (since the same treaties have proved to be the source of so much wrong to the Indians and so much disgrace to the government), that would feel themselves complimented by any mention of their names in connection with these Indian negotiations.

            Again, the peculiar sacredness in the nature of the diplomacy employed by the government in dealing with the Indians, was finely calculated to complete their delusion, and to give the sting of their final disappointment an unusual keenness.  It was not an international diplomacy - that tricky, [unintelligible] implore, kind of negotiation in which each party is expected if he can to cheat the other, and in case he is beaten to take his defeat without any hope of redress.  It was that, rather, which partakes of the nature of sentimental solicitation, not much un-akin to that by which love wins the hand of the fair one which he pretends to worship; a kind of trading which renders any violation of the contract by the stronger party exceedingly dishonorable and reprehensible.  In fact, it was the dealings of a father with his children.

            The Cherokees were courted by the soft words of these commissioners into the happy belief that the president of the United States, that great central embodiment of all executive power, was, and intended to be for the future, to them all that could be expected of a beneficent father; that ensconcing themselves in his great paternal bosom, they would never more have any use for the bloody implements of war, nor any occasion at all for the exercise of military vigilance against the inroads of an enemy; that once settled upon their inheritance west of the Mississippi, there nothing should ever betide to disturb their paradisiacal peace as long as grass grew and water flowed; that is to say, as long as the laws of the material universe should stand unrepealed.

            In morals, the binding force of an agreement is not necessarily equal between the contracting parties.  There is something in an unbiased conscience which declares that the one that made himself the most instrumental in bringing about the bargain should be the last to find fault with the terms or to advocate an arbitrary abrogation.

            There is no one, we venture to say, who is not selfishly interested, and who is, at the same time, familiar with the internal history of these Cherokee treaties, but what would assent readily to the proposition that, in reference to them the "better way" would have been to observe them and carry them out in acceptance with the understanding of the parties at the time they were made; to do otherwise would be, to a degree at least, self conviction of moral obliquity.  In abrogating them, as is done by the Curtis law, the congress of the United States has committed itself directly, and indirectly the seventy-five million of American people whom it represents, to the shocking proposition that there is nothing in individual character, nothing in high official position, nothing in sacred region, nothing in morality, nothing in law, nothing in national honor, nothing in all the bright establishment of occidental civilization that an Indian tribe, in dealing with the white nation, can safely rely upon as an adequate pledge for the observance of good faith.

            In congress, the existence of this horrible truth is frankly admitted; and the national conscience there seeks refuge from the lash of reproach by pleading the artificial doctrines of what they call 'inevitable necessity."  Through the providence of God and the management of the government, the Cherokees are found to be the exclusive owners of a large and very beautiful space upon the earth's surface, just a little outside the great state of Arkansas; it is deemed to be too much to be monopolized by so poor a fragment of the human family as a tribe of American Indians.  The problem in controversy is, and always has been, this:  How to unlock the gates of this verdant domain and turn it out as a piece of delicious pasturage for universal mankind?  To this end two methods have long been in vogue, advocated respectively by the government and by the Cherokees.  The former is that which has just now culminated in those "drastic" and morally reckless provisions of the Curtis law.  It is the method of injustice, greed and oppression.  The latter, the Indian's plan was that of adoption.  It opened a wide and very roseate door for the ingress and naturalization of exotics from all the outside world without the distinction of race or nation.  They not only received the stranger with open arms, but shared their inheritance with him, and gave him choice of their daughters to make his life happy. Surely the Cherokees cannot be reproached with anything like petty selfishness, or Chinese seclusiveness.  Under this very pleasant and beautiful plan, the "opening up of the Cherokee country to white settlement" has been, and is today, well-nigh completed; and had sordid, green-eyed, greed not broken the halter and ruthlessly dashed into this very natural, sweet and peaceful process of transmutation, it would have been but a short time until this territory question would have been disposed of by the action of its own internal elements of self-solution; and all that, too, in entire accord with the moral sense of mankind, the sanctions of religion, and the honor of the guardian government.

            We here leave this branch of the subject with the reader to determine at the bar of his own conscience which would have been the "better way."

            It is my intention in my next to examine into the specific previsions of the Curtis Law.

 

1 Charles Curtis (1860-1936) and Curtis Act of 1898: Curtis, for whom the Curtis Act of 1898 was named, was part Kaw Indian. He became a representative for the State of Kansas , later became a member of the Indian Affairs Committee, and eventually became Vice President of the United States under Herbert Hoover. The Curtis Act of 1898 included the Five Civilized Tribes (Choctaws, Chickasaws, Creeks, Cherokees, and Seminoles) in the Dawes land allotment process.  This law abolished tribal courts and tribal governments in the Indian Territory, established towns in Indian Territory, and prepared the way for the statehood of Oklahoma . When his allotment of Indian lands came up in 1902, Curtis received 1,600 acres for himself.        Back

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Indian Chieftain

September 1, 1898

Unjust Treatment: Too-Qua-Stee Resumes Criticism of the Curtis Bill.

Very Easily an Indian May be Despoiled of His Home, While if He Retains it, Its Value is Impaired by Inalienability.

            Editor Chieftain: -- The Curtis law1 talks with as much nonchalance about taking the private property of an Indian without his consent, and putting him off with simply the "appraised value," as if such a practice were universally approved, and really had some foundation in the doctrines of civilized jurisprudence.

            According to my promise left at the close of my last article, I am now under obligations to begin this with a consideration of this singular feature of that law.  It is not my intention, however, to be learned, or in any manner professional; but simply to treat the subject, as nearly as possible, according to the suggestions of common sense.

            That portion of the act which is just now to engage my attention is found in the thirteenth section, and is in these words:

            "When any oil, coal, asphalt, or other mineral, is hereinafter opened on land allotted, sold, or reserved, the value of the use of the necessary surface for prospecting, or mining, and the damage done to the other land, and improvements, shall be ascertained under the direction of the secretary of the interior, and be paid to the allottee, or owner of the land, by the lessee, or party operating the same, before operations begin."

            Now this, in some respects, is a very remarkable piece of legislation.  There is evidently a spirit of insincerity running through it from beginning to end.  If the reader will indulge me for a moment, I think I can demonstrate the truth of what I say to his entire satisfaction.

            Let it be noticed, then, in the first place, that the power to take the Indians land for prospecting and mining purposes, is absolute under the statute.  Nor does it make any difference by what means be acquired the possession of this land, whether by allotment, purchase, or reservation; nor even by what title he holds it.  None of these considerations amount to anything as a safeguard against this arbitrary power of the lessee.

            But now, again, let it be noticed what a great to-do is made about the mere manner, the needless formality, that is to be observed in the taking of this property.  This "appraised value," for instance, has to be paid, forsooth, before, yes before, the work of mining begins; just as though the earliness of payment could have any effect to purge away the heinousness of the outrage perpetrated upon this Indian, and reconcile him to the loss of his home.  And this, too, is all to be done under the direction of the secretary of the interior; just as though official dignity were a fair offset against wrong, transforming evil, by a kind moral magic, into good; and as if homeless starvation were a misery less to be dreaded when brought on under governmental supervision, than it would be as the result of depredations committed by a Dalton gang2.  It reminds us of a little passage that occurs in the life of Ned Scrag;

            Ned was a young man about eighteen years of age.  He had neither father, nor mother, nor guardian, nor even a friend that any one ever knew of except a homely old cur that forever tagged at his heels.  He spent his time in hunting and fishing by day, and slept in hay mows, and by places, at night.  At length old Trip began to feel the effects of time and to manifest a decided dislike for lively activities, much to the disgust of his master.  So Scrag determined one day to put him out of the way and give his place to a more likely successor.  He threw the noose around the dog's neck, tied him up to a tree, and began to make ready with the fatal blow, when old Trip raised his aged eyes bedimmed with tears, and, looking his master square in the face, began to importune for mercy.  "Never mind, Trip," said Scrag tenderly, "I'm goin' to give ye a whappin nice funer'l.  I'm goin' to put onto ye a nice coon skin jacket, a warm wolf skin coat, a possum skin cap, and all your legs shall be socked in a set of fine bear skin boots.  O ye'll have a fine time, Trip, down thar in the groun!"

            But Trip could not understand how, in case he should lose his life, all this pile of peltry was going to be of any benefit to him; and he died without ever being informed on that point.

            Now, it is this "skinny" kind of consolation that this mineral law is largely dealing in.  If you imagine you see anything in it that looks like a just, or humane, regard for the Indians, examine it closely, and you will be apt to find it exceedingly "skinny."  It robs them of their homes and then essays to avert the just condemnation of history by parading the solicitous care, the transcendent delicacy, with which the fleecing was conducted.  But like poor Trip, we find cajolery a poor medicine for our fears in the gloomy moment of dissolution.

            But let us now direct our attention for a moment more particularly to that favorite phrase of the Curtis law, "The appraised value."

            Every article, or piece, of property that you own, has a variety of values.  It has, in the first place, what is called the market value; this is measured and determined by the intensity with which mankind might desire to become the owner of it.  It also has a value which you yourself place upon it; and this, for the sake of distinction, we may call its home value.  This home value may coincide with the market value; in which case the wheels of commerce begin to move; you ship and sell.  That desire to possess, which constitutes the market value, has reference exclusively to the usefulness of the article in question; but that same desire to possess upon which the home value depends, may contemplate its usefulness, it is true, but at the same time, it often comprehends much more than that.

            The horse, for instance, which you have, might bring in the market, where only his usefulness is considered, the sum of one hundred dollars; but likely you could not be inducted to part with him for two hundred dollars, or twice the market value; and all this, simply because a matter of sentiment has entered into the question.  This horse may have been a present to you from a dear friend; and you keep him with a tenacity inspired, not by his usefulness, but by the esteem which you entertain for the donor.  This is the "home value" of the animal.

            Now this is the nature of that value which we usually place upon our homes.  The value of one's home does not all consist in the amount of material comfort which it affords; but largely, and often mainly, in the tender memories and associations that cluster around it.  It is these considerations of a sentimental nature that make the home what it is, namely the foundation of all good society and the corner alone of just and free government.  No one is competent to price a home, but the man who has made it.  There is, in the nature of things, no market value for it.  If there is a single spot upon the face of all earth that should be protected more carefully than all others against the inroads of avarice and speculation, it is the home; and especially the home of the poor. 

            And yet, there is still another kind of value, called the "appraised value."  But as this value always contemplates something like a sale, if not confiscation, it would be more properly called the "appraised price."

            This is a value fixed by the intervention of third parties, called appraisers.  These appraisers generally come upon a man's premises; elbow him out of the way, assume control of his property, fix the price upon it, and put it on the market without his consent.  The men selected for this dirty business, are often eminently qualified for their work; they are ignorant, the slaves of prejudice, adepts in the practice of bribery and corruption; men as devoid of an adequate appreciation of those tender associations which endears home to the human heart as so many stalking horses.  Yet this appraising committee is the bull-wheel of that outrageous machinery which the Curtis law has contrived for the invading of, not only one or two, but, if discretion please, all and every sacred home in this territory.  Think of it with astonishment, O ye stars! And ye bright heavens' clothe yourselves in the sack-cloth of chagrin!  That the congress of the United States should pass a law setting apart the humble homes of a whole nation as food simply to glut the maw of insatiable greed!

            "What mean ye that ye beat my people to pieces, and grind the face of the poor? Saith the Lord God of hosts."

            In general, the chief element in what is called the "right of property" is the right of the owner to fix his own price upon it and to enjoy the privilege of keeping it until he can get his terms.  If this price which be fixed is not satisfactory to the purchaser, there is no appeal; let him pass on to others, and on, until, by chance he finds a price to suit him; such is the proper mode of commercial procedure.  But the Curtis law abruptly ordains an innovation upon this old time rule of business.  It proposes to turn loose, as occasion requires, a band of appraisers among these Indians, whose duty it will be to fix the price upon their property, at which, any one can take it, who will in good faith embark in a mineral speculation.

            I have called this practice an innovation; and so it is.  The like of it has never before been heard of in the annals of civilization.  It is a species of arbitrary meddling with the rights of private property that no just government ever tolerated, except in cases of absolute necessity.  Such cases of necessity may arise where a piece of private property is needed for public use, and the owner refuses to yield the same without compulsory proceedings; or sometimes, too, in proceedings to enforce the collection of debts, and the partition of estates, and perhaps in some other instances.  But since the world began, and prior to the enactment of the Curtis law, "appraisement" as a preliminary step to the taking of private property without the consent of the owner, and merely for the purposes of speculation, was never heard of, never, never.  It is truly an innovation, and that, too, of a kind which is not only now seriously damaging to the Cherokee Indians, but may possibly, in the future, prove to be a very accommodating precedent for a like attack upon the rights of the poor elsewhere.

            Under the scheme of allotment as contrived by the Curtis law, there never can be, in any proper sense, any such thing as real property among the Cherokee people.  Suppose the allotment after this plan was already accomplished; at the outset, the Indian finds his land devoid of the very first element of real property - alienability.  It is thus ordered by law to remain worthless until this Indian is dead and his place becomes ready to be taken by some other one of the more eligible sons of America .  But suppose, again, these skin-deep allotments should, as intimated in the act as likely to be done at some day in the golden future - suppose, I say, the time had come when the title in fee, simple absolute is to be conferred upon these allotments; the property is now real, as far as the law is concerned.  But what about its worth?  It is still in almost as bad a fix as it was before it became alienable.  To illustrate; here is an Indian, say, who owns a fine quarter section.  In any place within the United States outside the Indian Territory, it would bring in the market fifty dollars per acre; and any man of means from the east desiring to find a home in the west, would be very willing to give this price for it.  But what would be the effect upon the trade, when this easterner found that the estate was liable at any time under the provisions the Curtis law, to be covered by one of these mineral leases?  No man of ordinary prudence would be willing to invest his capital in so precarious a piece of property, except at a greatly reduced price, an offset to the risk.  From this cause, it is obvious, that the price of real estate among the Cherokees would be forever many percent below its real worth.  The aggregate loss accruing to the Indians in this way, would amount to many millions of dollars; and all this under magnanimous pretense of saving to them, to be distributed as a per capita, that pitiful muckle of rental that might possibly be wrung from a slippery hoard of mineral lessees.  The economy of this Curtis law is much like its benevolence, exceedingly "skinny."

            I have many a time sat and watched little girls in the management of their mimic households and enjoyed the amusement.  The puppet baby was always the chief object of her untiring attention; now it appears in full afternoon dress, then it is abed in dainty linen, then again it appears upon the scene as bare as nature with hat all awry, next it is sprawling upon the floor underfoot, or taking a spanking for acts of disobedience of which it was never guilty.  And yet, I have never seen in the management of these little would-be mothers, anything like the amount of humorous absurdity that has for the last century, characterized the dealing of the government with these Cherokee Indians.  Their present predicament is pitiable indeed, a reproach to civilization and a disgrace to American statesmanship.  Spanked with the Curtis law most cruelly, and without cause, they have been limited to a skin-deep interest in the earth's surface, disfranchised and without a political home anywhere beneath the skies; and here we have to sit thirty thousand as worthy a class of people as ever trod American soil, and yet as helpless as toads, dazed and confused under the effects of the last game played upon us, only waiting and wondering what is to be the nature of the next governmental whimsy to which we shall have to respond.

            Let us endeavor to import a little useful light upon the question by means of a supposed case.

            Let us conceive of a radical change in the material and personal of the case, the underlying principle involved remaining in the mean time absolutely the same.  In the place of this poor, unenfranchised Indian who is politically incompetent, and not allowed to open his mouth in reference to the matter, suppose we substitute Mr. William McKinley3; and suppose, instead of this old Indian's so-called allotment, we take that sweet and precious little spot of soil upon which his Excellency's gilded Ohio home is now standing.  Do you suppose that, if this imaginary state of facts had, on the 28th day of June last, been actual, William could ever have been induced to affix his official signature to such a piece of legislation?  Assuming that the reader is a man of, at least, ordinary good sense and honesty, I deem it needless to wait; and I will therefore venture to answer for him at once, "No, no, no; a thousand times no."  And why?  Does not public policy require, does not the wellbeing of mankind demand that that splendid bed of anthracite sleeping there just a few feet in the ground beneath the president's doorsill, should be hauled forth, scattered around to warm up shivering poverty in winter, to set the furnaces of industry ablaze, and to send the cars of commerce abroad distributing comfort and convenience throughout the world?  O hush! Hush!  That argument is worth nothing except in cases where the coal, you see, belongs to the Indian.  When it belongs to the white man there, there, there is difference; you see.

            And what would have been the result, had congress attempted to pass such a law?  It is pretty certain that it would have soon gone down in history under the withering contempt of the American people.  Charlie Curtis and Judge Little4 would never have seen congress again and Senators Pettigrew5, Platt6, and Jones7, would have gone glimmering along down the oblivious career of things that have long since ceased to be.  We have now been out on a little excursion far beyond the murky confines of this little Indian country, away hence into the land of intelligence, religion, social refinement, and popular liberty; and the sheaves of knowledge which we have harvested and brought home are these: 1. That the principle underlying that passage of law as quoted above from the Curtis act, is regarded universally among white people as dangerously false; 2. That an application of it in practice would be regarded by people of Anglo-Saxon, extraction the world over as tyrannical and a just cause for warlike controversy.

 

1 Charles Curtis (1860-1936) and Curtis Act of 1898: Curtis, for whom the Curtis Act of 1898 was named, was part Kaw Indian. He became a representative for the State of Kansas , later became a member of the Indian Affairs Committee, and eventually became Vice President of the United States under Herbert Hoover. The Curtis Act of 1898 included the Five Civilized Tribes (Choctaws, Chickasaws, Creeks, Cherokees, and Seminoles) in the Dawes land allotment process.  This law abolished tribal courts and tribal governments in the Indian Territory, established towns in Indian Territory, and prepared the way for the statehood of Oklahoma . When his allotment of Indian lands came up in 1902, Curtis received 1,600 acres for himself.       Back

2 Dalton Gang:  Frank Dalton (1859 - 1887), Gratton Hanley "Grat" Dalton (1861 - 1892), Mason Frakes "Bill" Dalton (1863 - 1894), Robert Rennick "Bob" Dalton (1869 - 1892), and Emmett Dalton (1871 - 1937) were five brothers who, with the exception of Emmett who was a cowboy, worked as deputy marshals.  After Frank was killed in a gun battle in Kansas in 1887, Grat, Bill, Bob, and Emmett along with a few other members, formed the Dalton Gang and began a life of crime robbing trains and banks.       Back

3 William McKinley, (1843 - 1901): 25th President of the United States from 1897 to 1901.      Back

4 John Sebastian Little, (1851 - 1916): Little was a Democratic member of the United States House of Representatives and a judge in the 12th Judicial Circuit.  In 1907 he was elected as the governor of Arkansas ; however, due to a nervous breakdown, he was unable to carry out his term.       Back

5 Richard Franklin Pettigrew, (1848 - 1926): A lawyer, surveyor, and land developer, Pettigrew represented the Dakota Territory, and after the Dakotas became part of the United States , he was elected to the United States Senate where he served from 1889 to 1901.     Back

6 Orville Hitchcock Platt, (1827 - 1905):  Platt was elected to the United States Senate in 1879 and served until 1905.   He introduced the Platt Amendment which caused the U.S. to withdraw troops from Cuba following the Spanish-American war.      Back

7 James Kimbrough Jones: Jones had replaced Henry Dawes as chairman of the powerful Senate Committee in 1893. He was a significant figure in the dismantling of Indian Territory . He was a lawyer, Confederate Army soldier, and a member of the Arkansas State Senate from 1873 to 1879.  Jones served in Congress from 1881 to 1885, and in 1885, he was elected to the United States Senate where he served until 1903.    Back

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Indian Chieftain

September 8, 1898

Too-Qua stee's Criticisms: Shortcomings of the Curtis Law Further Exposed. Its Unconstitutionality Claimed.

            Editor Chieftain: -- In my articles hitherto upon the mineral question, I have been endeavoring to entertain the mind of the reader upon the injustice with which the law bears upon the individual Indian; how it authorizes the lessee, at any unexpected moment, to break in upon him, and not only to interfere with him in the rightful management of his home affairs, but possibly to dispossess him absolutely, and send him away with nothing but an "appraised value" in money as the only amends for the loss of his home, with all its fond endearments.  It is now my intention, however, to change my standpoint and take another view of my subject; to contemplate Mr. Curtis'1 mineral law as the organic act of a stupendous monopoly, for the purpose of speculating upon the property of the Indians.

            Before proceeding, however, it may not be uninstructive to advert briefly to the idea of monopoly as it has figured in this territorial agitation from the beginning.

            It will be remembered that Mr. Dawes2 and the honorable commission that bears his name, in their first efforts to set in motion this crusade upon the Indians of this territory, put forth, with much animated energy, three arguments in justification of what they were doing, to-wit: 1. That crime abounded in the country, and the Indians failed, or neglected to suppress it. 2. That the children of the white people in the country were growing up without an education, and the Indians refused to provide schools for them.  3.  That some of the Indian citizens were occupying, and utilizing much greater tracts upon the common estate than would rightfully fall to them upon an equal and fair division; this was called monopoly.

            This latter argument was much made of; and the enforcement of it was attended without a few quite ridiculous results.  Complaint, you know, is always essential to perfect the nature of an abuse; an abuse against which no one feels disposed to complain, is practically, no abuse at all.  Hence the Dawes commission must needs find a complainant.  They waited upon the full bloods who live over in the green shady hill country, the paradise of the nation, and explained to them the immense wrong the monopolists were doing them; that it was the desire of the government of interpose in their behalf as against the monopolists and asked as a return for this kindly office, that the Indians should consent to an abolition of their tribal government, and the allotment of their lands, together with a number of other things.  But the Indian replied that they were not aware that they had any ground of complaint on the score of monopoly; that they had all the land they desired, and at the place upon the common estate where they preferred to have it.  Nevertheless the commission obtruded their protection and recommended a legislative war upon the monopolists.  Hence by the Curtis law it was made a penal offense for any Indian to be found in the occupancy of more surface upon the face of the common domain than would be likely to fall to his lot upon a fair and equal division.

            Now I have indulged in this little piece of recent history not without a present purpose.  It shows that the government at the beginning of this agitation was induced by the Dawes commission to make a special fight upon monopoly as practiced by the Indians upon their fellow Indians; and this will enable us, in what we shall have to say subsequently, to enter fairly upon the interesting inquiry whether the extermination of this domestic monopoly was not merely in order to clean up the ground, and to open up the way, for the establishment of a much grander species of monopoly at the hands of outsiders and outside capital.

            In the execution of this purpose, it will be necessary for me to refer incidentally to the scheme of allotment as projected by the Curtis law - a theme upon which I had determined to dwell specially in a separate article; but here incidentally.

            It is not the soil that law allots; but the surface thereof merely.  Hence in order to get a clear notion of the Indians estate that comes to him through this species of distribution, it will be necessary to fix distinctly in mind the meaning of the word "surface" as used in the statute.  The word surface means the mere skin of things; not that either, exactly, for there is in the dermis integument something of a thickness; whereas in the idea of "surface" this third dimension is entirely wanting.  Dr. Webster3 defines the word thus, (and I believe he is right,) "The exterior part of anything that has length and breadth, without thickness."

            Here, then, we get a distinct view of the estate left to the Indian by the Curtis law; the mere surface, an attribute of the soil which is all tangible and visible enough; but entirely too attenuated to sprout a hill of potatoes, or to furnish mold for his pigs to root in.

            Now the question naturally arises what has become of the balance of the Indian's estate; of all that magnificent property extending from the center of the earth to an infinite height in the skies, guaranteed to him so bounteously by the plighted faith of the government  - what has become of the balance of it?  Let us see if the Curtis law will not answer this question.

            Well, everything that lies below this filmy surface, except roots, and a few moles, gophers and field mice that hide in the earth in order to get away from the inhumanity of man is "mineral," "mineral," you see; and being mineral, is exempt from allotment; that is to say, it is wrested from the Indian by a species of legislative robbery, and set aside as a grand capital for some financially competent person, or persons, to take hold of and employ in schemes of speculation.  It was regarded by the Dawes commission, (and they finally had congress with them in the matter,) as something intolerably wrong for an Indian to enclose and enjoy a few acres more than his proper share of the common soil; but here these same men after clearing these native monopolists out of the way, proceed, by virtue of law, to monopolize the whole Cherokee domain, and lease it out, (which is simply to sell it off), in the absolute control of a few speculators, while the Indians, the original and rightful owners of it, are unceremoniously pushed out of the way and assigned a bare place upon the surface to sit, stand, or lie upon, not even allowed depth of earth enough to be buried in when dead.

            This is a monopoly of the most enormous character, and doubly despicable because it has been cunningly contrived under a pretended effort to suppress evils of that kind.

            Let us look briefly at the practical working of this monopoly.

            When the mineral lessee has paid his rental, he has, virtually bought and paid for the mine which he is operating for at least the space of one year.  He has absolute control of the coal resources of that section of the country.  He can lift [unintelligible] to the surface and put it upon the market, or he can let it be in the bowels of the earth, if he chooses, and nobody has any right or power to question his doings.

            Now the largest guaranteed rental that the lessee is required to pay, is $500 per annum.  This, as the act provides is to be paid into the treasury of the United States to be at some day in the golden future, distributed per capita among the Cherokee people.  Now assuming that the Cherokee people number 30,000, it can be easily shown by the simple rule of the division, that each individuals share would amount to about one and one-half cents.

            Let us now take a case; out here west of Vinita a few miles, there is a coal mine. Wood for fuel in this prairie country cannot be had but at great expense; it is a luxury which none but the rich can enjoy.  But in this coal mine, there is an abundance of fuel, and it is common property, (but for this outrageous mineral law,) among the Cherokee people.  Every man can go there and get as much fuel as will keep himself, wife, and children warm during the winter and that too, at a mere nominal outlay.

            But now the secretary of the interior leases, or sells as it were, this coal bank to one of Charlie Curtis' mineral lessees.  The inhabitants of Vinita get the promise of one cent and a half a piece to be paid some time in the distant future as a per capita for their interest in this coal bank.  Let it be noticed, too, that this is a trade in which the Indians, owners of the mine, are not consulted; it is made in spite of them, and without their consent.  This lessee is now master of the mine.  He is an absolute monopolist.  He makes the Indians stand off.  He says to them, "if you don't pay me my price, you may freeze to death."  He puts up the price of coal, and how high?  Why, the measure of that height will, of course, be the utmost ability of the Indians to pay. It is always natural for monopoly to do just that mean thing.  It sucks the life blood out of the people, especially the poor people.

            But we can not dwell on this point; let us epitomize the picture.  The upshot of the transaction is this.  This Curtis law has, in a most arbitrary and consciences way, cut off from these Indians all rightful access to one of their own indispensable necessaries of life and put it beyond their reach into the hands of this government parasite simply that he may fatten and fill his pockets with the pennies extorted from these poor surface inhabiting "sons of the forest."

            This is in illustration on a small scale, of the whole mineral speculation set up by this Curtis law upon the Indian people throughout this territory. The hardihood that could have labeled such an act with that captivating caption, "For the protection of the people of the Indian territory ," must have been enormous.

            But the people of the territory are too familiar with the cow business to be deceived by so simple a device as a mere brand.  When a maverick appears in the herd with a new figure scorched into its skin, the good people at once begin to look up the matter; for they know something wrong has been going on in the neighborhood; and they seldom fail to know soon the straight of the matter.  Accordingly they have looked carefully into the spirit of this beautiful inscription, and also the practical bearing of the act itself, and they find that the two are in irreconcilable conflict with each other; that while the former is insincere and deceptive, the latter, instead of protecting these Indians is engaged in fleecing them systematically and most unmercifully.

            In the fifth article of the constitution of the United States , I find these words: "No person shall be deprived of life, liberty, or property without due process of law."  But what is a "due process of law?"  In 18 Howard, 296, the Supreme Court of the United States answers this question; it is any formal proceeding in a court of competent jurisdiction, according to the established rules of practice.  No judicial power can deprive a person of his property except through this formal mode of procedure; nor is the executive power competent to do such a thing.  The legislative branch of the government is not only unable to do such a thing, but it will not be allowed, under the constitution, to contrive by an exertion of its legislative power, any "process of law" which would in effect, authorize it to do so.

            Now these black subterranean cliffs of stone coal which the hand of nature has buried up in the deep bosom of these Cherokee lands, constitute a part and parcel of the real estate belonging to these Cherokee Indians.  It is their private property.  They bought it of the government.  They hold a patent to it, exceedingly solemn and formal, bearing the powerful signature of Martin Van Buren, president of the United States .

            But here comes this terrible little Curtis act, and authorizes the secretary of the interior to take this property, without any process of law whatever - without giving these Indians any hearing at all in the matter - and lease, (that is to sell it,) in Tom, Dick, and Harry at his own discretion; the very thing which the constitution has said plainly shall not be done.

            Which now, will be allowed to prevail?  The constitution of the United States , or the Curtis act?

            I can well imagine the legal sophistry by which the statute will doubtless be made to triumph over the constitution - but it was not my intention to become professional here; and I must leave this radical inquiry to await a more suitable occasion.

            I have now spent as much time as I have to spare at present upon this mineral outrage; and yet it is so replete with redolent material inviting animadversion so coaxingly, that I find it difficult to desist.  I may possibly have occasion to return to the subject again in the near future.

            My next article will be devoted to "Town Sites."

1Charles Curtis (1860-1936) and Curtis Act of 1898: Curtis, for whom the Curtis Act of 1898 was named, was part Kaw Indian. He became a representative for the State of Kansas , later became a member of the Indian Affairs Committee, and eventually became Vice President of the United States under Herbert Hoover. The Curtis Act of 1898 included the Five Civilized Tribes (Choctaws, Chickasaws, Creeks, Cherokees, and Seminoles) in the Dawes land allotment process.  This law abolished tribal courts and tribal governments in the Indian Territory, established towns in Indian Territory, and prepared the way for the statehood of Oklahoma . When his allotment of Indian lands came up in 1902, Curtis received 1,600 acres for himself.       Back

2 Henry L. Dawes (1816 - 1903): A Republican United States Senator and a United States Representative.  He introduced the General Allotment Act of 1887 known as the Dawes Act, which authorized the President of the United States to divide Native American tribal lands into allotments for individual Native Americans.  In 1893, the Dawes Commission formed to dissolve the Indian Nation.     Back

3Noah Webster, (1758 - 1843): Teacher, lexicographer, textbook author, spelling reformer, political writer, and editor.  His work included the authoritative Webster's Dictionary.      Back

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Indian Chieftain

September 15, 1898

Townsite Matter Discussed:  Too-Qua-Stee Expresses Himself on This Feature of the Curtis Bill.

            Editor Chieftain: — I am now to talk about towns and cities; and the first thing, (as paradoxical as it may seem,) that I wish to impress upon the mind of the reader, is this:  Towns and cities are not made by men; in that sense, I mean, which would authorize any one to say, "I made this town"; or "the people owe me a debt of gratitude for the existence and prosperity of this city."

            Towns and cities are spontaneities called into being by the presence and activities of population; just as cockleburs spring up and flourish after the natural lay of the soil has been broken up and mellowed by the plow.  The farmer has been engaged all summer in the little selfish project of raising a bit of corn; but the burs are there in full life and bloom, not, however, by human design, but in spite of it; they are there, and no thanks to anybody, or anything, unless it be the man's own indolence and shiftlessness.  Towns and cities are the undesigned public results of a multitude of designed individual enterprises.

            To illustrate; Mr. A moves into town, and builds a palatial residence; the structure is a splendid piece of architectural art, and it is not only an ornament to the town, but it is indeed a pant and parcel of the town itself.  Now, what was the actuating motive that induced this man to execute this noble piece of work?  Was it to build up the town and add to its splendor?  Not at all.  What did he do? Simply built himself a house to live in.  He came into town and did all this elaborate fixing merely that he might enjoy the benefits of the place; in other words to live on the town.  It is true, he has added something to the municipal importance of the place; but that increment came along as an inevitable resultant; just as the cockleburs spring up on the trail of the farmer; a thing which he did not contemplate, and which he could not hinder.  It must, upon the whole, be admitted that he did quite a good thing for himself; yet I know of no principle of reason by which you, or I or the public, could be held in a debt of gratitude to him for having built that splendid mansion within the town.

            Take another case; a millionaire manufacturer locates a plant in the town, and puts into operation an establishment which will furnish profitable employment to many hundreds of necessitous operatives.  His shops are a great accession and credit to the town.  But what thanks do I, or the public, owe him?  He has acted from entirely selfish motives.  He has, perhaps, bled the inhabitants of the town of not a few thousands of dollars as a first condition for his coming.  He came into the place to get the benefit of its resources.  The building up of the town was the last thing that he ever thought of, if indeed he ever thought of it at all.  Even the hands that he feeds, he works as well; and he had just a lief starve them, as feed them; and will actually do so just as soon as their labor ceases to be profitable to him.  There is no thanks due this man from any rational source, because benevolence, which gratitude always implies, is, in his case, absolutely wanting.

            One more instance will suffice. 

            Both sides of Main street, say, are walled with colossal stone and brick blocks, many stories high; all their capacious apartments jammed full of sparkling merchandise, and an army of nimble footed clerks at the long counters, are waiting daily upon an impetuous throng of customers.  Money is flying on every hand.  It is a brilliant theatre of wealth, and is looked upon, by way of eminence, as the city, the very heart of it, without which the municipal pulse would cease to beat and instant death to the place would ensue.  What are the facts in the case?  Are these merchant princes supporting the city, or is the city supporting them?  The latter of course.  Let the city cease to nurture them; let it withhold its patronage, and they soon close up doors; take an account of stock and disappear.  The care nothing for the city; as soon as it becomes impossible for them to live on it, they spread their wings and fly away.  And so it is in all cases.

            The truth which I have so far been endeavoring to inculcate is this: that the town, or the city; is no man's job, but a spontaneity that springs up in the presence of population and commerce, and entirely independent of human design.

            Nor is the place upon the earth's surface where a town, or a city grows a matter of discretionary selection on the part of mankind.  No man, or set of men, not even the government of the United States, can say effectually, "there shall be a city here, or a city there, or a city yonder," or that a city, even after it has been already founded, and been, for many years in a state of prosperity and power, shall continue to live and prosper upon the same site.  The sites, where towns have to sit, are matters altogether dependent upon the shifting currents of commerce, and the fortuitous movements of population.  The place for a town may be here today, there tomorrow and next day somewhere else.  This is eminently the case in new countries, like the United States , especially the western part of it.  By consulting the map of this country it will be seen that since the introduction of railroads, those great channels that shape the course of commerce, and direct the flow of emigration, many places that were once flourishing burghs, have been deserted of their inhabitants, and have fallen into hopeless decay, simply because the current of trade has been diverted from them; and no human power, not even the authority of the government, can command and compel those inauspicious sites to maintain flourishing municipalities.  That destiny which presides irresponsibly over the affairs of men, has determined otherwise; and from that decree there is no appeal.

            And this, now, leads me to speak more particularly of that townsite heresy which has, of late years, characterized the policy of the government in reference to the disposition of its public lands.

             In the early ages of the world when civil governments were prevailingly despotisms, and the people were slaves, the monarch had it in his power to ordain that a city should be here, there, or elsewhere, and so it had to be; the population and commerce needed to make it a flourishing place, were furnished by royal edict.

            But in a free country like this, where the liberties of the people are respected, (or supposed to be,) and where the movements of commerce and population are directed by natural laws instead of arbitrary authority, an attempt on part of the government to fix the location of towns and cities is not only unwise, but inexcusably absurd.  It may be claimed, however, by way of avoidance, that the underlying idea of the townsite policy is not to ordain where towns shall be; but simply to forecast and betimes reserve from common settlement those choice tracts only which seem to be pointed out for that purpose by the controlling laws of trade and population.  Yet this view of the case would hardly better the state of the case; for a civil government to engage in a scheme of speculation, especially upon its citizens, is equally unbecoming as an actual display of tyranny.  The proper functions of a free government are few, simple, and well defined.  Namely, to maintain the peace and protect the rights of the citizen.  Whenever it so far oversteps these plain bounds of duty and begins to meddle with the economics of the people, it is so far treading in the footsteps of ancient despotism.

            The setting aside of public lands for the founding of cities, is a practice of quite recent origin in this country; it was unknown in the days of national poverty and patriotism; it is a marked instance where capital has artfully succeeded in enlisting the strong arm of the state as a partisan in its hereditary war upon homeless poverty.

            Where the tracts thus to be reserved are parts and parcels of the public lands of the United States, there is, I concede, a species of sophistical reasoning by which the transaction might really seem to be justified.  The land, for instance, belongs to the government; and if so, she has a right to do with it what she pleases.  If it be, to set it aside - withhold it from the homeless citizen - for the purpose of building cities, no one can complain.  This is the argument by which the congress of the United States has been led astray upon this subject by the moneyed oligarchy. But we are not so much concerned with this phase of the subject; if the multitudinous freemen of the United States, by whose suffrages presidencies and congress live, move and have their being, find no fault with an abuse of this kind in their own midst, there is no reason why the unenfranchised American Indian should feel any concern for their case, and embark in a job of vicarious grumbling in their behalf.  It is only as this townsite heresy invades the domain of our own property rights that we feel called upon to crave a hearing.

            The Curtis law1, speaking in reference to our Cherokee lands, provides, "And all townsites shall also be reserved to the several tribes, and shall be set apart by the commission heretofore mentioned as incapable of allotment."

            There is, right here, a good deal of sharp practice; one could hardly believe it credible without first seeing it clearly with his own eyes.  Let it be noticed that these townsites are to "be reserved to the Cherokee tribe" of Indians.  This recognition of their tribal or political existence is a very convenient finesse for saddling upon them the semblance of a public responsibility, or duty.  The argument, (very cunning it is,) is this: "If they are a distinctive community, it is their bounden duty to make reasonable provisions for the indigenous municipalities that are to spring up in their midst."  The Cherokees, you see, are a nation capable of being charged with national duties and responsibilities whenever, in the mind of sovereignty, it is convenient, for a purpose, to so regard them; and then, again, they are not a nation, or distinctive community, whenever a different class of purposes make it expedient to disintegrate them, and contemplate them in a state of individualization.

            Now, in the midst of all this pitiable game of "Now it is, and now it isn't," the truth is this:  The Curtis law has abolished the Cherokee nation.  We are now, in a legal sense, existing in the country simply as an unorganized colony of foreigners, upon lands purchased from the government.  Hardly that either, for a colony of foreigners who have bought lands of the government are allowed to occupy them themselves, and to keep out all intruders; but the Cherokees are denied this privilege; they are not allowed to live alone on the lands which they have bought.  They meet with no such kindly treatment at the hand of the guardian government as is accorded to the newly arrived Russian or Mennonite.  There are many thousands of people abiding in the Cherokee country besides the Cherokees themselves.  There is, under the circumstances, no political responsibility, no public duty devolving upon the Cherokees that does not rest down with equal gravity upon all the white residence in the county.  They practically constitute a part and parcel of the country's body politic.  They are under just as much obligation to contribute of their substance for the building of these native cities and towns as the Cherokees.

            But this article is getting too long; I shall resume this subject in my next just where I here leave off.


1 Charles Curtis (1860-1936) and Curtis Act of 1898: Curtis, for whom the Curtis Act of 1898 was named, was part Kaw Indian. He became a representative for the State of Kansas , later became a member of the Indian Affairs Committee, and eventually became Vice President of the United States under Herbert Hoover. The Curtis Act of 1898 included the Five Civilized Tribes (Choctaws, Chickasaws, Creeks, Cherokees, and Seminoles) in the Dawes land allotment process.  This law abolished tribal courts and tribal governments in the Indian Territory, established towns in Indian Territory, and prepared the way for the statehood of Oklahoma . When his allotment of Indian lands came up in 1902, Curtis received 1,600 acres for himself.      Back

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Indian Chieftain

Oct 6, 1898

Coercive Throughout: Little Regard for Property Rights of the Indian.  Ownership Admitted but the Town Lots1are Nevertheless to be Sold Without the Owner’s Leave.

            Editor Chieftain: —When I closed my last article I was dwelling upon a supposed case, in brief, like this:  A colony of white people had, under the provisions of the Curtis law2, come into the Cherokee country in a body, had squatted upon a portion of these Indian lands, around and about the premises of a few old Indian settlers, had caused an ample town site to be surveyed and laid off into lots, and these lots disposed of according to the mode prescribed by the Curtis law; and these Indian settlers had been beaten out of their homes and driven off to scratch for a living in other fields, provided they could find any upon the face of the earth to scratch in; if not, however, then to draw the drapery of their couch about them, and, in the paralysis of starvation, dream off into the Elysium whither a benign civilization has sent all the rest of the red men of this continent.

            That, however, was only an imaginary case, nothing indeed in esse; and yet, at the same time, so entirely feasible that, if it never becomes a reality, it will be only because the chances provided by the law for despoiling these helpless Indians, are so grossly unjust as to cause cupidity itself to revolt and distain to avail itself of so dishonorable an opportunity.

            But we may now trim the wings of imagination; we will come down to the earth among men and deal with facts; in order to do this, however, to the best effect, it will be necessary for us to have before us a real case, an actual city to talk about.  Let it be Vinita3.

“If the owner of such improvements on any lots,” says the Curtis law, “fails to make deposit of the purchase money as aforesaid, then such lot may be sold in the manner herein provided for the sale of unimproved lots.”

            And in reference to unimproved lots, it provides as follows:

            “All town lots not improved as aforesaid shall belong to the tribe, and shall be in like manner appraised, and after approval by the Secretary of the Interior, and due notice, sold to the highest bidder at public auction by said commission.”

            Let us look now, for a moment, at the practical working of this scheme.  And, in the first place, I will ask the reader to sit down with me and candidly contemplate for a while the consummate sham that is done up and sugar-coated in those specious phrases, “reserved to the tribe,” and “shall belong to the tribe,” that gleam out like counterfeit jewels bestudding the grim text of this most unreasonable law.  If these town lots are to be reserved “to the tribe,” that is to the Cherokee people, and are to “belong to” the people, why then are the people not allowed to take them, have them and enjoy them.  To concede so frankly that these town lots belong to the Cherokee people, and then, in the same breath of concession, to ordain that these people shall not have them; that this property shall be taken from these rightful owners by force, without their consent, against their will, in an open disregard of their protest, and in defiance of their title, and put up and sold away from them at auction to the highest bidder looks not a little as though the government of the United States were vain enough to seek a little self-glorification in the fact that these Indians were incapable of possessing any right which congress in morally bound to respect.  Suppose this land had been granted by patent to a society, or company, of white men, as it was to these Cherokee Indians; think you, that Charlie Curtis, or indeed any other man in congress, would have ever had the courage to introduce a bill proposing, without the consent of these men, to “segregate” a portion of it for this purpose, and a portion of it for that purpose?  Ordering here a rich donation for the benefit of education, and there a liberal provision for the promotion of religion and morality, and again, for all kinds of civil, charitable, and political institutions; to set apart here and there large tracks upon the most choice portions of these men’s lands for the purpose of building towns and cities, and sell these sites off, lot by lot, at auction to the highest bidder? and then, without giving these men the benefit of an ordinary judicial hearing, go to work, audit and, in a mere legislative way, allow all manner of exorbitant and unjust claims as liens upon their lands? and then after all these extortionate segregations have been made, and the fertile imagination of greed has exhausted its pretexts for the further fleecing of these men, to say to them coolly, “well, we are not pleased with your holding the little remainder of your land as the common property of your company; we want you to take it in severalty; we are going to allot you.” “Tom, here is yours,” “Dick, here is yours,” and “Harry, yours is yonder,” and so on.  “It is true, fellows, you may prefer to hold your estate in common, but your choice as to how you would prefer to use your property is not to be regarded.”  Think you, a man in congress could have been found with gall enough to propose such a measure?  But suppose there should have been, what would have been the result.  The loss of his place in double-quick would have been an inevitable, and he might have been assigned a comfortable home in a lunatic asylum, if not in a cell somewhere under a charge of disloyalty to the constitution of his country.  Think you, there could have been found a little printing press in this whole territory, desperate enough to endorse such a measure?  However anxious journalism might have been to witness the triumph of such an outrageous piece of wrong, self respect, if nothing else, would have constrained it to stand aloof and keep silence.

            Now I have on my desk here before me a piece of congressional legislation, professing to be “for the protection of the people of the Indian Territory ,” and to this simulation is appended most significantly the clause, “and for other purposes.”  The spirit of this Curtis law is, as far as resemblance can go, identically the same as those in our supposed case just above set forth—with one, one, yes, only one little, but very significant exception; the parties affected in the case assumed are white men, citizens of the United States, partisans who are heartily in league with the relentless methods of what is called civilization; while on the other hand, the men dealt with by this Curtis law are Indians, a noble race of people, it is true, but they are only Indians; they are unable to vote, and are therefore not to be dreaded.  Moreover they have by some means become, and now are, the rightful owners of a grand inheritance in comparison with which the estate of Naboth4 is but a worthless patch—an inheritance which trifling kings might well lie down and snivel for.  Hence it follows as one of the well considered deductions of civilization that a law like that one contemplated in our supposed case above would be wholly unreasonable, unjust, unconstitutional, and in the absence of redress, and obvious causa seditionis5.  But this Curtis law, this hot-ended poker of coercion—what of that?  O civilization!  civilization!  you whited monster!  For three hundred years, you have been drinking Indian blood; and yet the fire of your unnatural thirst rages unappeased!

            But these town lots are now to be sold at public auction to the highest bidder.  The town commission, as authorized by the Curtis law, have proceeded in the execution of their iniquitous duty until they have well nigh disposed of the whole town.  The rich men, mostly white adopted citizens, have been able to meet the requirements of the law.  They have been able to buy in their own homes, and perhaps a few that were not their own; while in the meantime, many and many a poor Indian who has proved unable to produce the cash to save his house has been made, at the approach of this delegated scourge, to scoot out of his abode like a dislodged rat, only to see his premises, together with all his well being in this life, turned over into the hands of some moneyed adventurer in from the states.

            But this Curtis commission is about to lay the finishing stroke upon their despicable job.  They have sat down before the yard gate of a little home building; the house has been standing there for many years, a very humble structure, old, weatherbeaten and messy, but within, as neat and as cozy as the interior of an oriole’s nest.  Nature has done her very best in the formation of this site; it is the gem lot of all the city.  The inmates upon it today are there, not because of some early triumph in the practice of an overreaching thrift, but simply because when expelled from their home east of the Mississippi, they drifted west upon the irresistible winds of fate and were lodged by chance upon this beautiful spot at a time, too, when soil in this territory was deemed to be of no value.  This is not, in fact, their native land.  They were born under the shadowy cliffs of the Blue Ridge .  Civilization then pulled down their little house, chased them into the mountains, dragged them forth from the friendly cares that had tendered them protection, and marched them off to this country under the muzzle of General Scott’s6 musketry.  They are now very old and feeble; deprived of the advantages afforded them by this little home, which is all there is left to represent the activities of their early life, they must needs be a charge upon charity, or a prey to starvation and death.

            Come now, my indulgent reader, and let us take a view of the crowd that now surround that auction block, and let us not fail to take in the aspect of that old timeworn, purblind Indian as he stands hand in hand with his decrepit wife, and from the threshold of his cabin, contemplates the transaction that is going on just outside his yard gate.  If not in person, at least in will power and approval, there are assembled there grave senators of the United States and ambitious members of congress, and wise dignified judges who see nothing wrong in what is going on, nothing unjust, nothing unreasonable, nothing unconstitutional; together with lynx-eyed delegations representing the plutocracy of all the moneyed centers in Arkansas, Kansas, Dakota and Connecticut.

            At length the crying begins, “Who,” it goes, “will put up the most for this old man’s house?”  The climbing bids fly thick and fast at first; but Plutus7 soon comes down with the climacteric sum and puts an end to the strife; the hammer proclaims the result in a single bang; the chattering crowd disperse; and these two old Indian inmates lean, wrinkled and weatherbeaten, the victims of a so-called progress, the downtrodden refugees of a brutal dominion called civilization, come limping down and out, and , like Adam and Eve, leaving their cherished paradise under the primal curse.

            Some natural tears they drop, but wiped them soon:

            The world is all before them: where to choose,

            They know not: Providence alone their guide,

            They hand in hand, with wandering steps and slow,

            Through Eden take solitary way.”

            Now Plutus, you see, has won the prize; and Plutus is one of the finest fellows in the whole generation in which he lives.  He is remarkably progressive.  He is always up abreast of the times” himself, and heartily despises fogies.  He is a devoted friend of civilization, and takes special delight in building states and developing the resources of territories.  He now sweeps this old Indian’s cabin away, burnishes the ground, and rears a palatial residence, and dedicates it to himself in the midst of fiddling and dancing.  He is now the god of the city society; the champion of public improvements; the friend of education and religion; the latitudinarian patron of institutions of morality and dissipation, of camp meetings and horse races.  Ah! Plutus, pitch in and have your sway; but you will have to face, and look into eyes of these two old Indians on the day of God’s judgment.

            Just as I come to the last paragraph of this article, the Vinita Leader brings to my attention an article from the pen of “Ta-la-la.”  He complains that I have suggested no remedies for the evils of which I have been writing.  I here have neither time, space, nor disposition to give him the reply to which he seems to be entitled.  Suffice it simply to say, that he must have been a very careless reader of my articles hitherto, if he has never noticed a “remedy” suggested in any of them.  If he reads this article, he can not fail to see that, under the provisions of this Curtis law, a most outrageous piece of robbery upon an innocent, helpless and honorable Indian family, is made altogether possible.  Now, does “Ta-la-la” ask me what the remedy is?  What, in the name of common sense, is the proper remedy for all kinds of wrong doing?  Suppose the wrong doer should simply will to desist from his devilish conduct; could there be any better remedy than that?  The remedy that I would recommend in the case before us is this:  Let the government of the United States simply will to be just, strangle the fiend of speculation to death, and let these poor Indians lone in the possession of their homes.  If she is not willing to do that, (she is almighty,) then there is no remedy.  The Indian family of whom we have just been speaking is certainly entitled to an allotment;  let them take their town lot as, at least, a portion of their allotment.  Why not, “Ta-la-la”?  Do you know of anything under the sun, but the miserable worm of greed, that could object to such a thing?

 

1 Town Lots:  Before allotments were assigned to individuals, tracts of land were set aside for the   construction of towns.  The methods by which individual lots in the townsites were awarded was much debated.      Back

2 Charles Curtis (1860-1936) and Curtis Act of 1898: Curtis, for whom the Curtis Act of 1898 was named, was part Kaw Indian. He became a representative for the State of Kansas , later became a member of the Indian Affairs Committee, and eventually became Vice President of the United States under Herbert Hoover. The Curtis Act of 1898 included the Five Civilized Tribes (Choctaws, Chickasaws, Creeks, Cherokees, and Seminoles) in the Dawes land allotment process.  This law abolished tribal courts and tribal governments in the Indian Territory, established towns in Indian Territory, and prepared the way for the statehood of Oklahoma . When his allotment of Indian lands came up in 1902, Curtis received 1,600 acres for himself.      Back

3 Vinita: A city in the northern Cherokee Nation established at the junction of the first north-south and the first east-west railroads in Indian Territory.      Back

4 Bible: 1 Kings 21.  Naboth was a man who had a vineyard coveted by Ahab.  King Ahab and Jezebel gained possession of the land after Naboth refused to sell it by killing him.     Back

5 causa seditionis: Cause of a quarrel.      Back

6 General Winfield Scott, (1786-1866):  Scott began the removal of Cherokee Indians from Georgia, North Carolina, Tennessee, and Alabama along what later became known as the Trail of Tears.      Back

7 Plutus - In Greek mythology, the god of wealth who was blinded by Zeus so he could dispense his gifts without prejudice.  Plutus is lame so he travels slowly and winged so he leaves quickly.     Back

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Indian Chieftain

November 3, 1898

Indian Treaties.

How They Are Viewed From an Indian Standpoint.

Editor Chieftain:—My subject in this communication is “Indian Treaties;” in other words, the nature, moral and legal, of contracts, or compacts, or agreements, or treaties.

            What, then, are these existing arrangements, or so called treaties, between the United States and the Cherokee Nation of Indians?  Are they contracts?  Are they compacts?  Are they agreements, or are they treaties?

            A treaty is something more than an agreement.  A treaty implies a sovereignty, an independent nationality, in the respective parties that are engaged in the making of it; whereas an agreement is generally the work of private individuals.  Moreover a treaty differs from a compact; the former is employed in the settlement of previously existing controversies between sovereignties; the latter is an amicable arrangement between the parties for their own mutual convenience.  A treaty, an agreement, a compact, being without consideration, is in the nature of a nudum pactum1, and, whatever it may be in morals, it is regarded in law as binding no further than the party affected by it sees fit to observe it.  When the accord of choice which lies at the bottom of each of these kinds of arrangement between party and party, is based upon a valuable consideration, the transaction ceases to be a compact, or a treaty, or an agreement, and assumes the form of a binding contract, a kind of arrangement between parties which lies beyond the reach of legislation, and which neither party can hope to annul without the consent of the other.  To illustrate:  Russia and the United States, for the sake of peace between the two nations, and their mutual convenience, may agree, the one to take fish on one side of a certain meridian, and the other on the other; but such a treaty is only in the nature of an amicable compact; neither party is irrevocably bound to observe it, and either is at liberty, by an act of legislation, or otherwise, to break from its terms just whenever it may see fit to do so.  But when Russia makes a treaty with the United States in which the former, for a few million of dollars, cedes to the latter a territory like Alaska , and the money is paid and the land is delivered, the deal is not only a treaty, but a contract, a bargain and sale.  Now the doctrine is laid down broadly in American jurisprudence, that treaties are not irrevocable; that the congress of the United States has a right to abrogate a treaty whenever it sees fit to do so; of course, in such cases, there is always a real or fancied necessity present to quiet the pinchings of an irritated conscience.  The supreme court of the United States, in the famous Cherokee tobacco case2 uses an argument like this:  Congress is in the habit of abrogating treaties with foreign nations; and a treaty with an Indian tribe is not more sacred; hence it follows, as a logical conclusion, that if congress can annul so sacred a treaty as one which has been made with Great Britain, with greater reason certainly it might be allowed to annul one which has been made with an Indian tribe.  Such is the reasoning of that honorable court.  Now what notion that awful tribunal may entertain as to the standard by which the relative sacredness of an English and an Indian treaty, is to be estimated, does not clearly appear; yet we know there is no circumstance that could make the difference, unless it be the dreaded roar of the British lion.  Cowardice has always been, and is now, universally regarded as a disgraceful weakness; what, then, shall we say of it, when it is allowed to creep into, and corrupt, the doctrines of our jurisprudence, and pervert the administration of justice.  The truth is, there are no degrees in the sacredness of an obligation; it is either binding, or it is not binding; nor has the capacity of the party to whom it is due anything to do with this binding force.  Yet, in the disgrace incurred by a willful renunciation, there are indeed many degrees.  If, for instance, by means of fair promises, you acquire a benefit from a weakling whom you have induced to trust you, and who has no means of compelling you to comply with your promise, a repudiation on your part would certainly be much more reprehensible than if the party with whom you dealt had been your equal, or superior, one who had it in his power to compel you to comply with your agreement in case you should refuse.  But suppose, now, this helpless party with whom you deal should be, notwithstanding your fair promises, show to grant you the benefit which you seek; and suppose you, knowing he is absolutely in your power, should coerce him and compel him to hand over to you what you may want of him, leaving with him your promise that, at some day in the future, you will make the matter right with him by giving him an equivalent for what you have taken.  And suppose, on some day in the long future, the poor fellow comes to you and says:  “Colonel, you know when you took that from me years ago you said you would pay me for it sometime.”  And suppose you recollect; but instead of complying with your ancient promise, you simply affect a passion, and say to him, “Git out, you dirty dog!”  What about your moral disgrace in a case of that kind?  Think you it would not outdo the descriptive powers of the English language to picture forth the real length, breadth and depth of your dishonor?

            Now these treaties which the United States has made with the Cherokees, and which the Curtis law3 has so sweepingly overridden, were never voluntary matters with the Indians.  The principal provisions which they embody were, in almost every case, prescribed by the government as ultimata, and the signature of the Indians was appended under a constraint, (sometimes a military duress,) which overrode their free choice; and yet the Cherokees have always lived up to these compulsory arrangements with all the loyalty that could be expected of them upon the basis of a fair and righteous agreement.

            Viewing the subject from this standpoint, it would seem, (at least to the mind of an Indian) that the United States should, on moral ground at least, be the very last of all parties to become dissatisfied with these Indian treaties.  They were forced upon the Cherokees by a power against the arbitrary action of which they had no redress.  While, in reason, congress has no moral right to rescind these treaties, it is most certain that the Cherokees are well authorized, in both law and morals, to insist upon their faithful observance on the part of the government.

            Again, these so called Indian treaties are very different things from those agreements, called foreign treaties, which are usually made between the United States and foreign nations.  They are based, in almost every instance upon a valuable consideration passing from the Indians to the United States ; indeed the occasion that has given rise to these treaties has been the fact that the government was wanting to get hold of some piece of territory that was owned and occupied by the Cherokees.  The characterizing proposition lying at the bottom of these Cherokee treaties is precisely the same as that upon which is based the deal between the United States and Russia in reference to the purchase of Alaska .  Said the former to the latter, “Give me so much land, and I will give you so much money.”  “Agreed,” said the latter; Russia now has the cash; the United States the land.  In like manner said the United States to the Cherokees, “Give me your lands east of the Mississippi and I will give you a country west of that stream, together with the right of self-government there forever.”  “Agreed,” the Indians were made to say, and the treaty of 1835 began to be.

            Such is the nature of these Cherokee treaties.  They are something more than mere compacts, mere agreements, a set of nuda pacta the observance of which is at the discretion of either, or both, of the stipulating parties.  They are contracts, involving a bargain and sale.  And yet we hear of much gray-bearded learning everywhere about Washington talking gravely about the right of congress to abrogate these treaties; and that too without any allusion whatever to the indemnity that would be justly due the Indians for this violation of the contract.  Just as well as far as principle is concerned, might they claim the right to abrogate the contract with Russia for the purchase of Alaska, and just as becomingly too might it sit like a desperate heresy upon the lips of the imperial Muscovite, Congress, it is true, has the power, but it has not the right, to override these Cherokee treaties; nor can it ever have, until the poles of the moral universe have been inverted, and wrong becomes right, and the united voice of mankind be that of Milton’s devil: “Evil, be thou my good.”4

            I shall continue these remarks next week, Deo volente5.

 

1 In Latin literally means 'Bare or Naked Promise.' In civ