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Chronicles of Oklahoma
Volume 3, No. 3
September, 1925
OKMULGEE CONSTITUTION

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INTRODUCTION.

In the last two issues of CHRONICLES OF OKLAHOMA there have been reproduced the official journals of the first two sessions of the General Council of the Indian Territory, held respectively in September and December, 1870, at Okmulgee, in the Creek Nation. The purpose for which this General Council of the Indian Territory was convened was to consult together in regard to matters of mutual concern and interest. Four years before, in 1866, new treaties with the five civilized tribes by the Federal Government had been exacted by its authorized representatives. Each of these new treaties contained certain provisions that were common to all of the others. Among these was one which specified that the Congress of the United States should have the right to enact legislation for the organization of a territorial government for the Indian Territory. In compliance with the terms of this provision, bills had been introduced in the House of Representatives during the sessions of the 39th and 40th Congresses. In the 41st Congress, Representative R. T. Van Horn, of the Kansas City (Missouri) district introduced a somewhat similar measure which had been drawn up by the House Committee on Indian Affairs. The terms of this measure aroused bitter opposition on the part of the leaders of the five civilized tribes, who filed strong protests against its passage. It was at this time that the inter-tribal conference was called to meet at Okmulgee, where the first session of the General Council of the Indian Territory was organized, with the Superintendent of Indian Affairs, Enoch Hoag, presiding.

The Van Horn Bill was reported to the House, when a controversy arose between the Committee on Indian Affairs and the Committee on Territories, the bill reing[sic] referred back to a special committee consisting of the members of both committees. No further action was taken. Railway construction was quite active throughout the states and territories west of the Mississippi just at that time and

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several lines had been projected through the Indian Territory. Railway influence in Congress was very active in an effort to have government land grant subsidies made effective in the Indian Territory as well as on the Public Domain. It was the fear, on the part of the Indians, that this might be brought to pass that led to the calling of the first delegated meeting at Okmulgee, in September, 1870.

The adjourned session of the General Council of the Indian Territory convened at Okmulgee on December 6, 1870. Two days later, Campbell Leflore, of the Choctaw Nation, introduced a resolution authorizing the president of the General Council to appoint a committee consisting of ten members "to advise a permanent organization of the Indian Territory as contemplated in the treaties of 1866." This committee was duly appointed, Mr. Leflore being named as its chairman. On the second day following, this committee rendered a report, advising that a constitution, republican in form, with due regard for the rights of each tribe under existing treaties, be drawn up and submitted for adoption. This report was adopted on an aye and nay vote, with forty-eight delegates voting in the affirmative and five delegates voting in the negative. Colbert Carter, a delegate from the Chickasaw Nation, then moved that the president of the General Council be authorized to appoint a committee consisting of twelve members for the purpose of drafting such a constitution. This motion having been adopted, the following persons were named as members of the committee thus created

William P. Ross (Cherokee), Campbell Leflor a (Choctaw), Colbert Carter (Chickasaw), John F. Brown (Seminole), Francis King (Ottawa), Joseph P. Folsom (Choctaw), G. W. Johnson (Cherokee), C. H. P. Percy (Chickasaw), Ok-tar-har-cars Harjo (Muskogee), George W. Stidham (Muskogee), Riley Keys (Cherokee) and Augustus Captain (Osage).

This Committee immediately began its labors and, six days later—December 16, 1870, rendered its report in part. The consideration of this report was taken up at once and the greater portion of the remainder of the session was devoted thereto. The final vote on the adoption of the con-

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stitution as a whole, for submission to the several tribes for ratification resulted in fifty-two ayes and three nays.

Though the Okmulgee Constitution, as this document came to be known, was never ratified by the several tribes whose delegates in council had framed and submitted it to them, and though Congress never took any action in regard to it, this charter continued to be a theme for much discussion both in and out of the Indian Territory. More than a third of a century passed before any part of the people of the Indian Territory again essayed to formulate an outline for an organic law.

CONSTITUTION OF THE INDIAN TERRITORY.

Whereas the people of the nations of Indians inhabiting the Indian Territory have agreed by treaty with the Government of the United States, and being by its agents invited to meet in General Council under the forms prescribed by the Treaties of 1866 and the action thereon of the Government of the United States, having thus met to frame the laws and arrange the machinery of a government for the country occupied and owned by them, in order to draw themselves together in a closer bond of union, for the better protection of their rights, the improvement of themselves, and the preservation of their race and relying on the guidance and favor of Almighty God to carry out in a consistent and praticable[sic] form the provisions of said treaties at the earliest practicable day, do hereby enact and promulgate the following as the Constitution or organic law of the said Indian Territory:

ART. I.

Sec. 1. All that portion of country bounded on the east by the states of Arkansas and Missouri, on the north by the state of Kansas, on the west by the Territory of New Mexico and the state of Texas, and on the south by the state of Texas, which has been set apart and guaranteed by the Treaties and laws of the United States as a permanent home for the Indians therein lawfully resident or such as may be in like manner settled therein hereafter for the purpose of this Constitution shall be known and styled as "The Indian Territory."

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Sec. 2. Each of the nations of Indians who by themselves, or through their representatives may enter this confederacy, do agree that the citizens of each and every one of said nations shall have the same rights of transit, commerce, trade, or exchange in any of said nations as he has in his own, subject only to consistency with existing treaty stipulations with the United States and the laws regulating trade and intercourse, and under such judicial regulations as are hereinafter provided. But no right of property or lands, or funds owned by any one nation shall be in any manner invaded by citizens of another nation; and it is hereby distinctly affirmed that the rights of each of these nations to its lands, funds and all other property shall remain the sole and distinct property of such nation. Any Indian nation now represented in this General Council or which may hereafter enter in a legal manner, or be now in said Indian Territory, may be admitted to representation and all the privileges of this joint government by accepting and agreeing through their proper authorities to the provisions of this Constitution.

ART II.

Sec. 1. The powers of this Government shall be divided into three distinct departments, to be called the Legislative, the Executive and the Judicial Departments of the Indian Territory.

Sec. 2. No person belonging to one of these departments shall exercise any of the powers properly belonging to either of the others except in cases hereinafter expressly directed or permitted.

ART. III.

Sec. 1. The Legislative power shall be vested in a General Assembly which shall consist of a Senate and House of Representatives; and the style of their acts shall be, —"Be it enacted," or "Be it resolved by the General Assembly of the Indian Territory."

Sec. 2. The Senate shall consist of a member from each nation whose population is two thousand citizens, and one member for every additional two thousand citizens, or fraction greater than one thousand. Provided, nations with

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populations less than two thousand may unite and be represented in the same ratio, and provided further, that the Ottawas, Peorias and Quapaws shall be entitled to one senator, and the Senecas, Wyandottes and Shawnees to one senator, and the Sac & Foxes to one senator.

Sec. 3. No person shall be eligible to a seat in the General Assembly, but a bona fide citizen of the nation which he represents and who shall have attained the age of twenty-five years.

Sec. 4. The House of Representatives shall consist of one member from each nation and an additional member for each one thousand citizens or fraction thereof greater than five hundred.

Sec. 5. The members of the Senate and House of Representatives shall be elected by the qualifid[sic] voters of their respective nations according to their laws or customs and shall hold their office for the term of two years. Vacancies that may occur shall be filled in like manner.

Sec. 6. The Senate when assembled shall choose a President and its other officers, and the House of Representatives a Speaker and other officers; and each shall judge of the qualifications and returns of its own members. A majority of each house shall constitute a quorum to do business, but a smaller number may adjourn from day to day and compel the attendance of absent members, in such manner and under such penalties as each house may provide.

Sec. 7. Each branch of the General Assembly shall keep a journal and determine the rules of its proceedings, punish a member for disorderly behavior and with the concurrence of two-thirds, expel a member, but not a second time for the same offense.

Sec. 8. The General Assembly shall have power to legislate upon all subject and matters pertaining to the intercourse and relations of the nations of the Indian Territory, the arrest and extradition of criminals escaping from one nation to another; the administration of justice between members of the several nations of the said Territory and persons other than Indians and members of said nations; and the common defense and safety of the nations of said

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Territory. But the said General Assembly shall not legislate upon matters other than those above indicated. The General Assembly shall meet annually on the first Monday in June at such place as may be fixed upon at their regular session.

Sec. 9. Members of the General Assembly and other officers, both Executive and Judicial, before they enter upon the duties of their respective offices, shall take the following oath or affirmation, to-wit: "I do solemnly swear(or affirm, as the case may be) that I will support the Constitution of the Indian Territory and that I will faithfully and impartially discharge to the best of my ability, the duties of the office of———according to law. So help me God."

Sec. 10. The members of the General Assembly shall be paid four dollars per day while in actual attendance thereon and four dollars milage[sic] for every twenty miles going and returning therefrom on the most direct travelled[sic] route, to be certified by the presiding officer of each house. Provided, no member shall be allowed per diem compensation for more than thirty days at any annual session.

Sec. 11. Members of the General Assembly shall in all cases except of treason, felony, or breach of the peace, be privileged from arrest during the session of the General Assembly and in going to and returning from the same.

Sec. 12. No power of suspending the laws of this Territory shall be exercised unless by the General Assembly or its authority. No retrospective law nor any law impairing the obligation of contracts shall be passed.

Sec. 13. Whenever the General Assembly shall deem it necessary to provide means to support the Government of the Indian Territory, it shall have the power to do so; but no revenue shall be raised not actually necessary and in accordance with law, uniform in its operations throughout the Territory.

Sec. 14. All bills making approproiations[sic] shall originate in the House of Representatives; but the Senate may propose amendments or reject the same. All other bills may originate in either branch subject to the concurrence or rejection of the other.

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Sec. 15. The House of Representatives shall have the sole power of impeaching. All impeachments[sic] shall be tried by the Senate. When sitting for that purpose, the Senators shall be on oath or affirmation and shall be presided over by the Chief Justice; and no person shall be convicted without the concurrence of two-thirds of the members present.

Sec. 16. The Governor and all civil officers shall be liable to impeachment for any misdemeanor in office; but judgment in such cases shall not extend further than removal from office and disqualification to hold any office of honor, trust or profit under this Government; but the party whether convicted or acquitted, shall nevertheless be liable to indictment, trial and punishment according to law as in other cases.

Sec. 17. The salaries of all officers created under this Constitution, not otherwise provided shall be regulated by law, but no increase or diminution shall be made in the same during the term for which said officers may have been elected or appointed.

ART IV.

Sec. 1. The Executive power of the Territory shall be vested in a Governor who shall be styled the Governor of the Indian Territory, and whose term of office shall be two years, and until his successor shall be elected and qualified. He shall be elected by the qualified electors of each nation on the first Wednesday in April at the usual places of holding elections of the several nations. The returns of the election of Governor shall be sealed up and directed to the Secretary of the Territory who shall open and publish them in the presence of the Senate and House of Representatives in joint session assembled. The person having the highest number of votes shall be declared Governor by the president of the Senate; but if two or more shall be equal and highest in votes, then one of them shall be chosen by the majority of votes by joint ballot of both Houses of the General Assembly.

Sec. 2. The manner of conducting and determining contested elections shall be by law.

Sec. 3. No person shall be eligible to the office of Governor who shall not have attained to the age of thirty years.

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Sec. 4. Whenever the office of Governor shall become vacant by death, resignation, removal from office or otherwise, the President of the Senate shall exercise the office, until another Governor shall be duly qualified. In case of the death, resignation, removal from office or other disqualifications[sic] of the President of the Senate so exercising the office of Governor, the Speaker of the House of Representatives shall fill the office until the President of the Senate shall have been chosen and qualified to act as Governor.

Sec. 5. The Governor shall receive at stated times for his services a compensation to be fixed by law which shall be neither increased nor diminished during the period for which he shall have been elected, nor shall he receive within that period other emoluments from the Indian Territory.

Sec. 6. The Governor shall from time to time give to the General Assembly information in writing of the state of the Government and recommended to its consideration such measures as he may deem expedient, and shall take care that the laws be faithfully executed.

Sec. 7. The Governor, on extraordinary occasions may by proclamation convene the General Assembly at the seat of Government to legislate upon such matters only as he may recommend.

Sec. 8. When vacancies occur in offices the appointment of which is vested in the Governor by and with the consent of the Senate, he shall have power to fill such vacancies by commission which shall expire at the end of the next session of the General Assembly.

Sec. 9. The Governor may grant pardons, and respites and remit fines for offenses against the laws of this Territory, and shall commission all officers who shall be appointed or elected to office under the laws of the Territory.

Sec. 10. Every bill which shall have passed both houses of the General Assembly shall be presented to the Governor; if he approve, he shall sign it; if not he shall return it, with his objections, to the house in which it may have originated, which shall enter the objections at large upon the journal and proceed to reconsider it. If after such reconsideration two-thirds of the members present shall agree to pass the bill, it shall be sent with the objections to the

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other house, by which it shall likewise be reconsidered; if approved by two-thirds of the members present of that house, it shall become a law; but in such case the votes of both houses shall be determined by yeas and nayes, and the names of members voting for and against the bill shall be entered on the journal of each house respectively. If any bill shall not be returned by the Governor within five days (Sundays excepted) after it shall have been presented to him, the same shall become a law in like manner as if he had signed it unless the General Assembly by their adjournment prevent its return, in which case it shall be a law unless sent back within three days after their next meeting.

Sec. 11. There shall be a Secretary of said Territory who shall be appointed by the Governor with the advice and consent of the Senate and who shall hold his office for two years, and whose duties shall be prescribed by law. He shall also act as Treasurer of the Territory until otherwise provided. Before entering upon his duties as Treasurer, he shall give bond with such sureties as may be required by law. No money shall be drawn from the Treasury but by warrant from the Governor, and in consequence of appropriations made by law. There shall also be appointed in like manner one Marshal who shall have power to appoint such deputies as may be authorized. There shall likewise be appointed one Attorney General and two District Attorneys, whose duties and term of office shall be defined by law.

Sec. 12. All commissions shall be in the name and by the authority of the Indian Territory, and be sealed with the Seal and signed by the Governor and attested bar the Secretary of the Territory.

ART. V.

Sec. 1. The Judicial Department of the Indian Territory shall be vested in a Supreme Court, three District Courts, and such inferior courts as may be provided by law; but their jurisdiction shall not interfere with the civil and criminal jurisdiction retained to each separate nation by the treaties of 1866.

Sec. 2. The Supreme Court shall be composed of the three Judges who shall be appointed by the Governor with

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the approval of the Senate as District Judges. Two of said judges shall form a quorum of the Supreme Court for the transaction of business. Their term of office shall be six years, provided that the office of one of said judges shall be vacated in two years, of one in four years, and of one in six years, so that at the expiration of each two years one of said judges shall be appointed as aforesaid. The judge appointed for six years shall be the first Chief Justice of the Supreme Court and upon the expiration of his term the senior judge in office shall be thereafter the Chief Justice.

Sec. 3. The Supreme Court shall meet at the Capital commencing on the first Mondays in June and December in each year. The Supreme Court shall be the court of appellate jurisdiction from the district courts and original jurisdiction in such cases as may be prescribed by law.

Sec 4. The Supreme District judges shall have power to issue writs of habeas corpus and other process necessary to the exercise of their appellate or original jurisdiction.

Sec. 5. The District Court shall have original jurisdiction of all cases civil and criminal arising from the trade or intercourse between the several nations and all cases arising under the legislation of the government as may be prescribed by law.

Sec. 6. Writs of error, bills of exceptions, and appeals may be allowed from the final decisions of the District Courts in such cases as may be prescribed by law.

Sec. 7. It shall be the duty of the General Assembly to divide the Indian Territory into three districts which shall be as nearly equal in territory and population as may be practicable, assign one of the three judges to each district and provide for the holding of terms of the district court in each at such times and places as may be deemed expedient.

Sec. 8. No person shall be appointed a judge of any of the Courts until he shall have attained the age of thirty years and be a person of good character and suitable qualifications.

Sec. 9. No judge shall sit on a trial of any case in which he may be interested, or in which he is connected to either of the parties by affinity or consanguinity, except by

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consent of the parties; and in case of disqualification of any judge, the vacancy shall be filled as may be prescribed by law.

Sec. 10. All writs and other process shall run in the name of the Indian Territory and bear test and be signed by the Clerk issuing the same.

Sec. 11. Indictments shall conclude "Against the peace and dignity of the Indian Territory."

Sec. 12. Each court shall appoint its own Clerk whose duty and compensation shall be fixed by law.

ART. VI.

Sec. 1. The General Assembly may propose such amendments to this Constitution as three-fourths of each branch may deem expedient; and the Governor shall issue a proclamation directing all civil officers of the Territory to promulgate the same as extensively as possible within their respective districts, at least six months previous to the annual sessions of the National Councils of the nations parties hereto; and if three-fourth of such National Councils at such next annual sessions shall ratify such proposed amendments they shall be valid to all intents and purposes as parts of this Constitution.

Declaration of Rights.

That the general, great and essential principles of liberty and free government may be recognized and established we declare

Sec. 1. That all political power is inherent in the people, and all free governments are founded on their authority and instituted for their benefit; and they shall have at all times the inalienable right to alter, reform or abolish their form of government as may be lawfully provided for.

Sec. 2. The free exercise of religious worship and serving God without distinction of creed shall forever be enjoyed within the limits of this Territory. Provided that the liberty of conscience shall not be construed as to excuse acts of licentiousness or justify practices inconsistent with the peace, safety and good morals of this Territory.

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Sec. 3. No religious test shall ever be required as a qualification to any office of public trust in this Territory.

Sec. 4. Every citizen shall be at liberty to speak, write or publish his opinions on any subject being responsible for the abuse of this privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.

Sec. 5. The people shall be secure in their persons, houses, papers and posessions[sic] from all unreasonable searches, seizures, and intrusions; and no warrant to search any place or to seize any person or thing shall be issued without describing them as nearly as may be, nor without good cause supported by oath or affirmation.

Sec. 6. In all criminal prosecutions the accused shall have a speedy public trail by an impartial jury, of the district wherein the crime shall have been comitted[sic]; the right of demanding the nature and cause of the accusation, of having the witnesses to testify in his presence, of having compulsory process to procure a witnesses in his favor, of having the right to be heard by himself and counsel, of not being compelled to testify against himself, nor to be held to answer to any criminal charge but on information or indictment by a grand jury.

Sec. 7. All prisoners shall be bailable[sic] before conviction by sufficient surety except for a capital offense where the proof is evident or the presumption great.

Sec. 8. Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted, and all courts shall be open and every person for an injury done him in his person, reputation or property, shall have remedy as the law directs.

Sec. 9. No person for the same offense shall twice be put in jeopary[sic] of life or limb and the right of trial by jury shall remain inviolate.

Sec. 10. No person shall be imprisoned for debt.

Sec. 11. The citizens shall have the right in a peaceable manner to assemble for their common good, to instruct their representatives and to apply to those vested with the powers of government for redresss[sic] of grievances or other purposes, by petition, address or remonstrance.

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Sec. 12. The privilege of the writ of habeas corpus shall not be suspended unless the public safety shall require it.

Sec. 13. All powers not herein expressly granted by the nations parties to this constitution are reserved by them respectively according to the provisions of their several treaties with the United States.

SCHEDULE FOR THE CONSTITUTION.

In order to organize the Government of the Indian Territory, and secure practical operation for the same, it is hereby ordained that the provisions of this schedule shall be of the same binding force as the Constitution, of which it is a part, that it shall be the duty of the Secretary of this General Council to transmit a duly authenticated copy of this Constitution to the executive authority of each nation represented in the General Council and to ask the acceptance and ratification of the same by Councils or people of the respective Nations.

Upon receiving from such authority notifications of its acceptance and ratification by National Councils representing two-thirds of the population of the nations represented in the General Councils, it shall be his duty to promulgate such fact, and to call a session of the General Council from the nations ratifying this general Constitution at such place as the present session may designate for its next meeting. It shall be the duty of the General Council when so assembled to adopt such measures as may be necessary to secure the election of a Governor and members of the General Assembly, and to fix the time of the first meeting of said assembly, whose duty it shall be to perfect the organization of a Government of the Indian Territory under the provisions of the foregoing Constitution.

Provided, that this Constitution shall be obligatory and binding only upon such nations and tribes as may hereafter duly approve and adopt the same.

G. W. GRAYSON, Secretary.

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