BY EDWARD EVERETT DALE,
Kansas. The fences were erected with the full knowledge and consent of the Cherokee treasurer, who believed they would make it easier to collect the grazing tax.24 Many of these fences were erected under the names of individual Cherokees.
As the business increased, it was inevitable that sooner or later these matters should be brought to the attention of the Department of the Interior, and in the early winter of 1882 this happened. Early in the autumn the ranching firm of Scott and Topliff paid their grazing tax on a range in the Cherokee Outlet. A few weeks later two Cherokee Indians appeared with the representative of an organization known as the Pennsylvania Oil Company and set to work to fence a tract of 200,000 acres, including the range of Scott and Topliff.25
This was clearly a matter for arbitration and should not have been taken to Washington. But the oil company was a great corporation apparently new at ranching and perhaps largely using that business as a cloak to conceal its prospecting for oil in southern Kansas and the Indian Territory. Its representatives cared little for cow custom and knew little of the danger involved in refusing to arbitrate. They began fencing at once, and Scott and Topliff, in anger and desperation, appealed to the Department of the Interior.26
Only the barest outline of what followed can be given in so brief a paper as this Secretary Teller referred the letter of Scott and Topliff to Commissioner of Indian Affairs Price. The latter promptly began an investigation and soon reported to the Secretary of the Interior that fencing and other improvements on a large scale were under construction in the Cherokee Outlet.27 He said that the Attorney General had held that the Cherokee Nation had no right to settle its citizens in the Outlet,28 and yet many tracts were fenced there under the names of individual Cherokees who had received large sums of money for the use of their names. He declared that this unauthorized settlement and improvement must be stop-
ped and asked that the War Department be asked to furnish troops to remove or destroy all the improvements. Price also wrote the Indian agent for the Five Civilized Tribes instructing him as to what had been done and ordering him to give the ranchmen notice that they would be allowed twenty days to remove all fences and other improvements from the Outlet, failing which they would be removed by the military. When the twenty-day limit had expired, he was instructed to call upon the proper officer for troops to execute the order.29
The most charitable view that can be taken of the attitude of the Secretary and commissioner is that they were entirely ignorant of every detail of the range cattle industry. To destroy not only all fencing but camps and corrals as well in a region larger than the state of Massachusetts in which were grazing a quarter of a million head of cattle, and that, too, in midwinter, would be an act entirely indefensible, no matter under what circumstances these improvements had been erected.
Fortunately the War Department either had some realization of these things or else showed its usual reluctance to co-operate with the Department of the Interior. At any rate, the Secretary of War asked to be shown some provisions of law which would protect officers and soldiers in removing and destroying such improvements and the matter rested there for a time.30 Protests from the ranchmen came pouring into the Secretary of the Interior’s office and Agent Tufts was at last instructed to hold his order to remove fences in suspension while he made a complete investigation, the results of which should be reported to the Commissioner.31
Tufts’ report, made on March 1, 1883, was very favorable to the cattlemen. He found nearly 1,000 miles of wire fencing on the Outlet. He recommended that this be allowed to remain and that more fencing be sanctioned, provided permission must be obtained from the Cherokees, and that all fences be subject to removal at once upon notice of the Interior Department.32
The Secretary of the Interior now gave his decision that the ranchmen would be permitted to retain their improvements only after making satisfactory arrangements with the Cherokees.33
While the Secretary and the Commissioner were trying to arrive at some decision with respect to ranching upon the Outlet, the ranchmen themselves had not been idle. Many of them were men of great ability with powerful political connections and they were fully determined not to allow their large interests to be destroyed without making a desperate effort to save them. The plan now formulated was to transform the cattlemen’s organization formed some years before into a real corporation and secure from the Cherokee government a long-time lease of the entire Outlet.
Unfortunately this latter step was rendered somewhat difficult by the political conditions in the Cherokee Nation. The tribe was at this time almost an independent republic with a principal chief, bicameral legislature, and system of courts. Political issues were closely drawn and the two chief parties, the Union and the National, were bitterly hostile toward each other.
The ranchmen now opened negotiations with the principal chief, Dennis W. Bushyhead, a man of education and real ability, who was favorable to them and their interests.
In March, 1883, Bushyhead visited Washington, where he had an interview with Secretary Teller and Commissioner Price.34 He promised them that upon his return he would call a special session of the Cherokee Council and consider the entire matter of grazing on the Outlet.
In the meantime the ranchmen held a meeting at Caldwell, Kansas, on March 6, 7 and 8. This was attended by virtually all cattlemen pasturing herds on the Outlet. A committee was appointed to draft a constitution and by-laws and the new organization thus formed was incorporated under the laws of Kansas as "The Cherokee Strip Live Stock Association."35
The purpose of the new corporation as stated in the charter was the "improvement of the breed of domestic ani-
mals by the importation, grazing, breeding, sale, barter, and exchange thereof." The term for which it was to exist was forty years; the number of directors nine, and the principal office and place of business was Caldwell, Kansas.36
The by-laws were, like the constitution, very brief. They provided that all persons, corporations, or companies occupying an undisputed range in the Cherokee Strip and who agreed to pay the assessments might become members of the association upon payment of the membership fee of ten dollars. Each member had one vote and persons holding contiguous ranges outside the Outlet might be elected honorary members upon recommendation of the directors. This was apparently done in order that such persons might be given round-up privileges. All transfers of ranges by sale or otherwise were to be recorded in the books of the secretary, and all members must within thirty days after their admission to membership furnish the secretary with a description of the marks and brands of all domestic animals owned by them, which should be recorded by the secretary in a book kept for that purpose.37
Curiously, neither constitution nor by-laws make any provision for such officers as president, secretary and treasurer, though some of them are mentioned. However, a board of arbitration was created consisting of three members appointed by the directors. This board had power to settle all disputes, though an appeal might be taken to the board of directors by furnishing bond in a sum sufficient to pay all expenses of such appeal.38 Despite the fact that the constitution made no provision for officers, the directors met at once and chose Ben S. Miller as president, John A. Blair, secretary, and M. H. Bennett, treasurer.39
It should be noted that this organization was peculiar. It was not a corporation in the ordinary sense of the term, since it had no capital stock and, in consequence, no stock-
holders. It was an association with a membership composed of individuals, partnerships, and corporations, many of the last named with a heavy capitalization and numerous stockholders. Operating in a region without law or courts, it had little authority for its acts except the general consent of its members and yet for seven years or more this great association, with no property except such as it obtained from assessments of its members, was one of the most powerful factors in the history of the development of Indian Territory.
Upon Bushyhead’s return to the Cherokee Nation he at once proceeded to carry out his promise to Secretary Teller and Commissioner Price and called the Cherokee National Council to meet in special session. The association, besides its regular attorneys, had employed John F. Lyons of Fort Gibson, an inter-married citizen of the Cherokee Nation, as special attorney. He was a man of rare tact and ability who, of course, practiced influence rather than law. Lyons kept his employers informed as to the situation in the Cherokee country and when the special session of the council met early in May, two directors of the association, Andrew Drumm and Charles Eldred, hastened to Tahlequah and remained there during the entire session of the council.40
There was much difference of opinion in the council with respect to the matter of grazing and also there were a number of other men there seeking a lease of the Outlet.41 However, the representatives of the association overcame all opposition and at last secured the passage of a bill giving to the Cherokee Strip Live Stock Association a lease of the entire Outlet for a term of five years in consideration of the sum of $100,000 a year, payable semi-annually in advance. The bill was signed by the principal chief, May 19, and on the same day the two directors of the association filed with the chief their acceptance of the provisions of the act together with such terms and conditions as the chief might think necessary.42
These provisions stated with considerable detail the terms under which the lease was made. The lessees bound themselves to erect no permanent improvements on the land, and
such temporary improvements as might be necessary in caring for their cattle were to be the property of the Cherokee Nation upon the expiration of the lease. No timber was to be cut except for use in fencing or building necessary temporary structures. No person not a member of the association was to be permitted to graze stock upon the Outlet without the consent of the association. Finally, failure to make payment promptly was to work a forfeiture of the lease.43
It is impossible to say just what influence Drumm and Eldred brought to bear in securing the passage of this act. They themselves declared that no money was used and a Senate investigation some two years later failed to prove that any money had been used except in legitimate expenses. However, there is evidence that the Senate investigating committee did not arrive at the whole truth, and that large sums were expended in bribing members of the council to support the measure.44
The actual lease was signed early in July. It was given to the nine directors in trust for the association. The matter was never presented to the Department of the Interior, though it is possible that Bushyhead may have talked it over informally with Secretary Teller, as he made a trip to Washington soon after the adjournment of the council, though he left no official report of what had been done with the Department.45
The lease actually went into effect October 1, 1883, and on that date the first payment of lease money was made. The Cherokees asked that it be made in silver and the treasurer of the association, Mr. Bennett, took $50,000 in silver from Caldwell to Tahlequah, a long and dangerous journey to make at this time with so great a treasure.
The association now set to work to organize its affairs. The Outlet lands were surveyed and the boundaries of each range defined. Wide strips were left for trails across the Outlet and lands were also set aside for quarantine grounds, with the result that the total amount used for grazing was re-
duced to a little over five million acres.46 This was divided among a little more than one hundred individuals, corporations and firms, but some four or five hundred men were included in the organizations while, including stockholders in the various companies, perhaps two thousand people were interested in the association.47
Each member of the association was given a lease of his land by the directors for the entire period of five years. For this he was to pay one and one-fourth cents an acre every six months, though the first semi-annual assessment was two cents an acre in order to give money enough to get the organization started. Each member then gave a series of promissory notes for the amount of the future payments, maturing on March 15, and September 15, or fifteen days before the semi-annual lease payment must be made to the Cherokees.48 Each man erected his own fences, camps and corrals. Tens of thousands more cattle were now brought in and the ranges heavily stocked. The board of arbitration decided in all disputes. Hunters were employed to kill wolves, rewards were offered for the capture of thieves, and the improvement of breeds of cattle was encouraged. Within a year all difficulties had been settled and the association was not only a going concern but was running smoothly. It was the greatest live stock organization in the world and its power and influence was enormous. Troubles on the Cheyenne-Arapaho reservation to the south and rumors of bribery and corruption in securing the lease from the Cherokees, resulted in a congressional investigation of the ranchmen in Oklahoma in the winter of 1884-85. However, this investigation went the way of many other congressional investigations. Little was accomplished and the association was not seriously disturbed.49
Soon after this investigation ended, the association decided to try to secure a renewal of their lease, while their friend Bushyhead was still in office. The attempt was made at the regular session of the Cherokee Council in the autumn
of 1886, but failed and the only result was to set in motion further rumors of bribery and corruption.50
At this session of the council there also appeared representatives of a syndicate that was seeking to purchase all the lands of the Outlet. The sum of three dollars an acre, or a total of eighteen million dollars, was offered, but of course the Cherokees could not sell without the consent of the United States.51
At the winter session of the Cherokee Council in 1887-88, the association succeeded in securing the passage of a bill giving them a renewal of the lease for five years at $125,000 a year, but the principal chief, Joel B. Mayes, who had succeeded Bushyhead, vetoed the bill on the ground that others were offering more money.52
A bitter fight was waged during the next year, ending at last in the approval of an act in the autumn of 1888 granting to the association a new lease for the period of five years in consideration of the sum of $200,000 a year.53
It would seem that with the approval of this lease the association was in an excellent position. They had occupied this region for nearly ten years, the last five of which had been under a lease made with the full knowledge and apparent consent of the Department of the Interior, even though existing laws had prevented its giving formal approval.
But in spite of this promising outlook, disasters were impending. The years of agitation for the settlement of the "Oklahoma Lands" just south of the Outlet had at last culminated in the opening of that region to settlement in April, 1889. Settlers came pouring across the Outlet to join in the race for homes in Oklahoma. Also the pioneer farmers, encouraged by the opening of the Oklahoma lands, were clamoring to be allowed to settle still other areas, including the Cherokee Outlet. Railroads, border towns, wholesaling centers, and the press added their voices to the general tumult, all urging that these great areas in western Oklahoma occu-
pied by few or no Indians should be settled by the whites. The opening of the Oklahoma lands gave the pioneer settlers a foothold in the very center of the Indian country and made it inevitable that adjoining lands would also soon be opened to settlement.
Even before the settlement of the Oklahoma lands, or in March, 1889, an act of Congress was approved creating a commission of three persons to negotiate with the Cherokees and other western tribes relative to the cession of their surplus lands. This act provided that the Cherokees should be offered $1.25 an acre for the Outlet and that, in the event of their acceptance it should be opened to settlement54 This body was known as the Cherokee Commission. It promptly set to work, but soon found that the Cherokees were unwilling to sell at the price offered. This was natural, since a syndicate of cattlemen had already offered them $3.00 an acre for their lands, so they could hardly be expected to be willing to sell for less than half that sum.55
The clamor for the opening of the Outlet lands to settlement steadily increased, but the Cherokee Commission could make no progress in its dealing with the Indians. This was due in part to the influence of the Cherokee Strip Live Stock Association, who were encouraging the Cherokees to refuse to sell. The matter was made more complicated by the question of title to the Outlet.
Secretary of the Interior Noble urged that the Cherokee title was very shadowy and that the United States had the right to take these lands if necessary, while the Commissioner of Indian Affairs, T. J. Morgan, asserted that the Cherokee title was perfectly good. Late in October, Secretary Noble stated his policy in a letter to General Lucius Fairchild, chairman of the Cherokee Commission, who was then at Tahlequah. Noble stated that adverse and, it was believed, illegitimate influences had been brought to bear upon the Cherokees by the cattlemen.56 He reviews the whole history of grazing upon Outlet lands and said that the leases of Indian lands for grazing were void and that the President had the authority to
so declare them and to remove the ranchmen and their property by force. He declared that the offer of $1.25 an acre for the lands was under the circumstances munificent, while the title of the Cherokees even to use was precarious and liable to be defeated utterly. He criticized the "cattle syndicate" for its attempts to "rival and defeat the Government," and said it was acting in "defiance of law and against public interest." He said that it was now deemed best to lay hands upon these pretended lessees and remove them and their property by force not later than June 1, 1890. He said that if the United States found that its own title to the Outlet was good, it would not hesitate to take over these lands if the circumstances of the American people should require it.57 Noble closed by instructing Fairchild to make such use of the letter as he saw fit and to report whatever action he might take to the Department.
The letter of Noble was at once a warning and a threat. Public opinion demanded that the Cherokee Outlet be opened to white settlement. If the Cherokees refused to sell at the price fixed by the Government of the United States, they should be punished. Their revenue from these lands was to be stopped, notwithstanding the fact that they had received such revenue regularly for ten years. At the same time a threat was made to take the lands by force if the United States found that it had the superior title. This would of course be determined by the United states itself and the Cherokees knew by bitter experience not to expect too much if the matter were pushed to an issue.
In the meantime the Cherokee Strip Live Stock Association was the victim. The Indians, so long as they received revenue from these lands, would not cede them for seven and a half million dollars when private parties were offering them eighteen millions. In order to compel a cession, the ranchmen must be removed and all revenue cut off until such a time as the Cherokees were willing to yield.
Perhaps public interest demanded such a policy and yet it is difficult to defend. The ranchmen had been allowed to occupy these lands for ten years. A situation had not only been allowed to develop but had been encouraged and then a great productive industry was to be destroyed upon short
notice. Worst of all, the men whose business was thus threatened had no recourse. No courts could give them redress or protection, or even order that they be allowed time in which to arrange their affairs.
Recognizing the seriousness of the situation the association prepared and presented to the President a very able memorial setting forth their side of the case, but nothing could help the ranchmen very much at this time. The Department of the Interior, urged on by popular clamor, had determined to open the Cherokee Outlet to settlement. The most that the cattlemen could hope was that they might be given a reasonable time in which to adjust their affairs and market their herds.
Fortunately, President Harrison was more lenient than Secretary Noble. Having secured from the Attorney General an opinion that the lease of the association was without legal force,58 the President issued about the middle of February a proclamation forbidding all grazing on the lands of the Cherokee Outlet and ordering all cattle to be removed by October 1, 1890.59 When we consider that these lands were not opened to settlement until September, 1893, or almost three years later, it must be obvious that the purpose here was not to prepare the lands for settlement but that this was a political move directed against the Cherokees to force a cession of the lands.
For a time the Cherokees remained obdurate, but they, like the ranchmen, were fighting a losing battle. Early in 1891 a bill was introduced into Congress proposing to pay the Cherokees $1.25 an acre for the lands of the Outlet and take them without further negotiation. Noble favored this bill but the Commissioner of Indian Affairs disagreed entirely with his chief and said that for Congress to take these lands would be for the "Government to violate its faith and disregard its solemn obligations."60
Fortunately the Cherokees were wise enough not to push the matter too far. When it became evident that they must either cede the lands or see them taken by an act of Congress, they decided to accept the inevitable and late in 1891 signed
an agreement with the Cherokee Commission ceding the lands of the Outlet in consideration of the sum of a little over eight and a half million dollars, or about $1.40 an acre.61
In the meantime the Cherokee Strip Live Stock Association had seen its last hope vanish with the issuance of the presidential proclamation. A brief extension of sixty days was secured, but December 1, 1890, was set as the final date for the removal of all cattle from the Outlet. Nothing remained for the ranchmen to do but to market such cattle as they could and remove the remainder to other ranges.
Chief Mayes of the Cherokee Nation brought suit against the association for the remainder of the lease money. The case was fought out in the courts of Kansas and at last won by the cattlemen, but this litigation with attendant costs and the constant appearance of debts and claims proved most discouraging. At last at a directors’ meeting held in Kansas City in April, 1893, Vice-President Charles Eldred was given authority to sell or dispose of all notes, claims and debts due the association. This he did soon after by transferring them to three members of the association who agreed in consideration of this transfer to assume all debts, notes, claims and judgments against the organization.
By this transaction the Cherokee Strip Live Stock Association ceased to exist and a few months later, in September, 1893, the region in which it had operated, the Cherokee Outlet, was opened to white settlement.
The Cherokee Strip Live Stock Association was for years perhaps the greatest organization in the world engaged in the live stock industry and its influence upon the history of Oklahoma and Kansas was very great. Some significant features of its activities may be summed up as follows:
1. Here is to be seen an excellent example of the ability of the American pioneer to organize in a region without law or courts extra-legal institutions that seemed to function with surprising efficiency and afford adequate protection to extensive economic interests.
2. The association in its relations with the Cherokees affords an example of the curious reactions secured when red men and white are brought together in business or political
affairs. An illustration is also given of the rare political ability of the Cherokee people—an ability that has since that time put many persons of Cherokee blood into high official positions in Oklahoma.
3. In dealing with this association the Department of the Interior and most other officials of the United States showed an utter lack of understanding of the ranching industry, with the result that policies were adopted which were often unjust, inefficient, and in some cases little short of absurd.
4. Seeking as it did to discourage agricultural settlement of the Indian lands of Oklahoma, the association, by its very presence on these lands, did much to render such settlement inevitable.
5. The accusations made against this association by the pioneer farmers, the United States Government, and the press served in time to develop a public opinion hostile to the ranching industry as a whole which, in certain sections of the country, has never entirely disappeared.
6. By its opposition to the opening of Indian lands to settlement, the association incurred the bitter hostility of the agricultural population in Kansas and adjoining states. From this hostility toward wealthy cattlemen it was a natural step to hostility toward all forms of corporate wealth. The ranchmen were thus an important factor in the development of populism in this region.
7. The opening of the Cherokee Outlet and other Indian lands in Oklahoma furnishes an example of the changing of the economic life of large areas by legislation. To say that the land was taken from the Indian and given over to white settlement is only nominally correct. The Indian as an economic factor was negligible. What really happened was that the land was taken from the ranchmen and given to the farmer. Vast numbers of cattle were removed from these ranges and shipped to market and the ranges themselves almost immediately transformed into wheat fields. The result was important in the production of the cheap meat and bread of the early nineties.
8. Finally, the forced removal of the ranchmen from the Cherokee Outlet in order to deprive the Cherokees of further revenue and so force a sale of these lands at a price rep-
resenting only a fraction of their value presents one of the latest and most glaring examples of injustice done the Indian by the Government of the United States.
In conclusion, the writer wishes to urge upon all scholars specializing in history and economics the importance of the ranch cattle industry in the West as a subject for investigation. He feels that in the past too much has been left to writers of fiction and for the screen and that serious research in this field will yield rich returns and show that ranching has had influences upon American history hitherto unsuspected.