From 1869 to 1873
By W. Julian Fessler
Acknowledgment of source: Professor M. L. Wardell, of Oklahoma University, has a collection of statute books of the early Choctaw Legislature. Ready access to these volumes has made this paper possible.—W. J. F.
In a study of the work of the Choctaw Legislature, a brief survey of the document under which it operated is necessary—The Constitution of the Choctaw Nation.1 It was adopted by the representatives of the people assembled in Doaksville on Wednesday, the eleventh day of January, eighteen hundred and sixty, in pursuance of an act of the General Council, approved October 24, 1859. Its jurisdiction to that part of the present state of Oklahoma which is bounded on the north by the South Canadian and Arkansas rivers, on the east by the Arkansas State line, on the south by Red River, and on the west by the hundredth meridian; excepting the Chickasaw District whose limits had been defined in the Chickasaw-Choctaw treaty of 1837 and again in 1855.
The Constitution and the workings of the Legislature indicate two outstanding things which greatly influenced the national life of the Choctaws. First, they were surrounded by the United States. Because of this, there is no provision for maintaining an army and navy, save a state militia; or any provision for foreign relations with any nation but the United States. Second, it was a nation containing another nation—the Chickasaws. These are named in the Choctaw Constitution where their boundary limits are defined again. They also had direct influence on subsequent Choctaw legislation.
The Choctaw nation was divided into four districts bearing the following names: Mosho-Lattubee, Pushmataha, Apuckshunnabee and Hottubee. Originally there were only the three last named districts, they being settlements made under the leadership of the sub-Chiefs at the time of their removal to Indian territory. Each District elected a chief for a term of two years. These, aided by a sheriff and a ranger,
supervised and was responsible for law enforcement within their district. One of these chiefs was the principal chief of the nation who had the right of legislative veto but might be overruled by a two-thirds majority of both houses. The executive department was not well departmentalized. This put an extra burden upon the Legislature and slowing down action by having to pass on minor details, which could have been left for an executive, if the system had been so prepared.
The judicial system was vested in a Supreme Court and inferior district and county courts. The Supreme Court was composed of a justice from each of the districts, having been elected by the people therein. It was a court of errors and appeal, having original jurisdiction in such cases as might be granted to it by an act of the General Council. It possessed no power to pass on the constitutionality of laws.
The Circuit or district courts were composed of one judge in each district. They had original jurisdiction over all criminal cases, not otherwise provided for by law and in all cases where the amount involved exceeded fifty dollars. They also were given superintending control over the lower county courts.
The county courts controlled disbursements of all money for county purposes; having jurisdiction over matters of internal improvements and local concern. The judges of these courts were elected by the people within a county as the judges of the two higher courts were elected by the people within a district.
The legislative power was vested in a Senate and a House of Representatives, called the General Council of the Choctaw Nation. The Senate was composed of four senators from each district; elected by the people therein, and was chosen for a term of two years. A person to be eligible for this office had to be above thirty years of age and one year a citizen.
The House of Representatives was elected yearly by people in the several counties of a district, at the ratios of one representative for every thousand qualified voters or a fraction thereof, if not less than two hundred and fifty. If any county had less than a thousand, they were still allowed one representative.
Some of the important powers given to the council were:
the power to demand criminals from the United States, to pass on contested elections, sole right to suspend the laws, collection of fines, bonds and forfeitures and to administer the school system. To aid in the support of national system of education, it was provided in the Constitution that $18,000 of the interest money derived from the Chickasaw Fund2 be set aside for this purpose.
The work of the council during this period may be divided under the following headings: education, relations with the United States, national finance and laws of local importance. The laws pertaining to the relations with the United States occupied a greater share of their time and were most productive of an intensity of feeling which sometimes crept even into the phraseology of the enactment.
The laws passed during this period show them to be very solicitous about the education of their children.3 Many were sent to the United States for advance education. The expenses of these were either paid out of the general education fund or by a specific appropriation bill. Again a certain sum would be voted from the general fund to aid parents in defraying the expense of their children at school. Such was an “Act for the relief of Wilbur Hampton,” dated October 29, 1869. It granted the said Wilbur Hampton $30.80 with which to pay the tuition and board of two children at school.
They were just as liberal with primary education as is shown by the education appropriation bill for 1870. This granted $8,000 for the neighborhood schools in each of two districts and $7,000 for those in the third. One thousand dollars was granted for the expenses of Forbis Leflore, the superintendent, while visiting the schools. An appropriation of $7,820 to pay the expenses of students studying in the United States also was included. An annual appropriation of $6,000 for the Spencer4 Academy for boys and $5,000
2 See Choctaw Constitution, Article 7, Section 17. The Chickasaw fund amounted to $530,000. Paid to Choctaws for Chickasaw District as agreed under the terms of the Choctaw-Chickasaw treaty, proclaimed March 24, 1837.
3 Reverend Goode, a Methodist missionary, in his reminiscences, says that the Choctaws spent a bigger proportion of their money from the U. S. than any of the other Oklahoma Indians.
4 Spencer and New Hope Academies had been established as early as 1843. Spencer being under a board of Native Trustees, advised by the resident United States agent.
for the girls’ Academy at New Hope was voted. This was to supersede the permanent annuity granted to them by the terms of the treaty of 1855. This bill directed that the foreign mission boards of the Baptists, Methodists and Presbyterians be approached as to taking over control of these academies and paying the salaries of the faculties.
The educational system was financed by revenues derived from the sale of public buildings. A law, dated October 30, 1869, directed the National Superintendent of Education to instruct the trustees of Mosholatubbee district to advertise the school at Fort Coffee5 for sale. It was to be advertised for three months, and twelve months’ credit was to be given. The law required that the purchaser must have two reputable insurors. A law of November 4, 1869, gave the purchase price over to the National Superintendent, who was to collect it from the purchasers, Mr. and Mrs. G. T. Lincoln. This gives the sale price as being $1,200. They were slow to pay, for on November 3, 1874, the General Council took action directing the sheriff of Scullyville County to oust them if they did not vacate.
The report of the school system as accepted by the council in the fall of 1870 show conditions to be deplorable. Pushmataha district had the best conditions with a credit of $122.40 with the National Treasury. There were no formal reports from Mosholatubbee and Apuckshunnabbee districts. Rumors and informal reports showed that teachers were unable to spell correctly as shown by their signatures on vouchers, and illegal payments had been made. Mosholatubbee district had a deficit of $180.74 while the Apuckshunnabbee district had a balance of $2,136.98. It showed that George L. Williams, the trustee of this district, had spent a total of $6,769.12 failing to give any account for $1,178.36 advanced to him. Recommendation was made that the Principal Chief be directed to appoint two competent persons for the investigation of this expenditure and if any had been made illegally, the National attorney was directed then to take action for recovery.
The education report for 1871 showed that the Baptists had taken over the Spencer Academy, which had gained
5 Ft. Coffee; established June, 1834, abandoned November 1838. Occupied by Methodists for a school site, 1843, at request of the Choctaws.
both in enrollment and in faculty, the New Hope Academy had been taken over by the Presbyterians which had failed to progress.
Their relations with the United States at this time were characterized by protests and opposition on their part as against delay and lack of understanding on the part, of the United States. One of the biggest problems that faced the Civilized Tribes was the smuggling of the White Man’s Firewater. On October 30, 1869, the council passed a joint memorial addressed to the Congress of the United States asking that this smuggling be stopped, to allow Indian offenders be tried in Indian courts.
The coming of the railroads brought fear to the Indian. The railroads had been given permission to build through Indian Territory by the Treaties of Washington. On October 29, 1869, the council addressed a joint resolution to the Secretary of the Interior protesting the use of monies held for them in trust by the United States for railroad construction. This resolution turns the light upon the economic motives of the United States behind the treaties at Washington and the subsequent policy of favoring the railroads instead of their professed wards, the Indians.
The United States was dilatory on its part as is shown by the act of March 18, 1872. This called upon the United States to deposit $250,000 to their credit at once. This amount was due the Choctaws by Congressional action of March 2, 1861. Obtaining this occupied the larger portion of this entire session. It was eventually placed in trust for them under the treasury department. A part of the money was to be used for the payment of claims arising from the acts of November 10, 1854 and October 21, 1859. A court of claims was established to pass on the validity of these claims. It was composed of one commissioner from each district, appointed by the Principal Chief. The court was specifically forbidden to recognize the claims for collection. of Schmann & Co. at Memphis, Tennessee. The council held that the amount had been obtained through the endeavors of Indian commissioners rather than by the endeavors of this firm. The court also was directed to ignore the claims of commissioner who had negotiated the treaty of 1866 with J. H. B. Satrobe.
The council was confronted at this time with the problem
of the freedmen. The freedmen had petitioned the Congress of the United States for removal, charging cruelty upon the part of the Choctaws. The Choctaw council voted to aid in their removal, if the United States should take action to do so.
In a resolution of February 3, 1874, a bitter protest was made against the surveying and the allotting of their lands. The Chickasaws had previously consented; accordingly the United States had taken measures to survey and allot the District. The resolution opposed this by citing that according to the treaties of 1820, 1825, 1830, 1855, and 1866, the lands were patented in fee simple absolute to all members in common, of both nations, each individual member having an equal undivided interest in the whole. “Therefore it cannot be alloted individually except by the consent of the members of both nations.”
The council was very bitter towards the territorial plan of government for the tribes as embodied in the Okmulgee Constitution. They had authorized delegates at Washington to protest against the plan, and on February 3, 1874, they passed a memorial addressed to the Congress of the United States embodying this protest in vigorous language. It asserts that the Choctaws have been guaranteed in their right to self-government by the fourth article of the Dancing Rabbit treaty, September 27, 1830; by the joint treaty between the Chickasaws and Choctaws on June 22, 1855, and lastly by the treaty of Washington, 1866. “And they pray the United States not to forget these promised rights.” The memorial ends with these words: “Resolved; We are constrained to believe that it is instigated by our enemies. Some propositions are plain to us and are unmasked, others are insidious; all look to our confusion and destruction. We have rested on the good faith of the guarantees of the United States for protection.”
The resolution is a pitiful protest by a helpless people against the taking of promised rights and destruction. They condemned it as a scheme to destroy their nationality by the introduction of white settlers and the violation of their right to self-government.
Much of the time of the council was taken by the passage of bills of general or local import within the nation; such as the establishing or the removing of precincts, establishing
toll-bridges, disbursement of money, and conservation measures. Some were so trivial that under a well organized executive department, they would have been taken care of by an executive or department order.
On October 23, 1869, a law prohibiting the private carrying of firearms was passed. This law led to unexpected complication with the United States. One day an armed stranger appeared at the courthouse of Towson County. The sheriff, Billy Williams, disarmed the stranger. Later the sheriff was hailed before the United States District Court of Arkansas charged with disarming a federal officer. The council by a law of October 26, 1871, authorized that an attorney be retained at national expense to defend him.
In the year 1869, there appear numerous acts on the statute books giving legal status to children born out of wedlock. One such, approved October 27, 1869, legalized the child born to Phoebe Hampton by one Ben Lewis “in as full a manner as may be done by the general council.”
These cases grew to such proportions that jurisdiction over them was given to the county courts in 1871 by an act of the council. Provisions were made for the filing of a petition with these courts, and if after thirty days no protest had been made, the petition was granted.
There were many laws granting to individuals the right to erect toll bridges. One such law, setting forth the current toll rates, granted R. L. Stearns permission to erect a bridge over Rock Creek in Coal County. The toll rates as allowed, were:6
A team, 25c and 25c for each additional team.
A man and a horse, 12 ½c.
Each animal in a drove, 1c.
Single animals, 5c.
Other laws pertaining to the location of courthouses, precincts or establishing them and general election laws. Some of this matter was lessened by the law7 locating permanently the county and district courthouses throughout the nation. This law provided that the courthouses could only be moved by a majority of voters petitioning the council. This petition
signed by a majority of the voters within the county or district had then to be made into law by the council.
Conservation of natural resources presented an important problem. This was plainly indicated by the passage of the National Agent Law during 1871. In the previous year all leasing of lands by private individuals had been prohibited by council action. Now a national agent was appointed; having charge of all leases, concerning land, timber and stone, executed. He was bonded for $5,000 and required to make quarterly reports to the Principal Chief. It provided that all previous leases be voided and that an individual entering into a lease contract at any future date would be subject to a fine of $1,000.
At a later date a committee8 reported that the National Agent had defrauded the nation of $175 on the one item of the tax on coal, and there were evidences of further frauds to a greater amount. The council authorized the Principal Chief to send a committee to Sedalia, Kansas, to investigate the books of the M. K. & T. railroad for further frauds perpetrated by the agent. This would seem as if the Indians had “Teapot Dome” scandals of their own.
The council could bestow citizenship. This was done by action on the report of a special committee who had taken evidence as to the Choctaw descent of the person desiring tribal membership. The applicant had to file a petition to his descent signed by two disinterested persons. This was then submitted to the general council for final action.
The government was financed by the annual appropriation bill. Bills also were authorized to be paid as they came due. The ways and means by which a session of the council was financed shows the loose methods employed by them. They were usually hard pressed for funds due to the delay of the United States in paying Indian funds upon which they relied to defray expenses rather than taxation. The session in the fall of 1869 ordered the Principal Chief to send “some responsible person to the National Treasurer to obtain all money in his hands to defray the expenses of this session.” A frequent occurrence was to borrow from the national school fund. It was always provided to be paid back out of “the first money that comes into the national treasury” or “as
soon as the National Fund is recived by the National Treasurer.” As a last resort, a private loan was sought. When this was resorted to, a council member was authorized to go to a certain community, usually Boggy Depot, and borrow a stated amount from “whomsoever would lend it.”9
While the council was preoccupied by these important matters of state, it was often stilled by the Death Angel who would swiftly take some member of the council or some prominent citizen of the nation. The council would then pass a resolution of bereavement and don the black arm-band, the badge of mourning. In these resolutions are found some fine bits of Indian eloquence, that tell of the awe in which they held the workings of the Great Spirit.
The old statute books of the Choctaw nation tell an engrossing story of human interest. Though the pages are faded and moth-eaten, the writing illegible in places and in others a medley of grammatical errors, they tell a symphony of life in days gone by. The customs, the hopes, the beliefs, the doubts, the fears, and the vigorous spirit of a great people are all reflected. They but relate another sad chapter in the tragic story of the vanishing American.
9 An act directing L. S. W. Folsom to go to Boggy Depot and borrow $50.00 to defray the expenses of the council, March 19, 1872.