Berlin B. Chapman, Ph. D.
The United States by 1825 had acquired from the Quapaws and Osages such titles, rights or interests as they had in and to the lands later included in Oklahoma Territory; and by 1833, except for the Panhandle, these lands had been assigned by the government to the Choctaws, Cherokees, Creeks and Seminoles. But the Kiowa, Comanche and Wichita Indians and their allies, together known as the Plains Tribes, claimed the western half of the present State of Oklahoma as a part of their hunting grounds. The Wichitas claimed that from time immemorial their ancestors had lived along the Washita River and about the mountains that perpetuate their names; and that their forebars held domain over a large extent of country, including the lands that came to be known as the Leased District. The Plains Tribes did not recognize the right of Indians of the Five Civilized Tribes to occupy the western portion of lands conveyed to them by the United States, and in the early thirties the civilized immigrant Indians were in danger of incursions of the Plains Tribes.
Lewis Cass, Secretary of War, on March 23, 1835 appointed a commission consisting of Montfort Stokes, Matthew Arbuckle and Francis W. Armstrong to "hold a treaty"1 with the Comanches and other wandering tribes of Indians west of Missouri and Arkansas Territory. For the purpose of establishing and perpetuating peace and friendship between the United States and the Comanche and Wichita nations, and their associated bands or tribes of Indians,2 and between these nations or tribes and the Cherokee, Creek, Choctaw, Osage, Seneca, and Quapaw nations or tribes of
2The Indians comprised in the general term "Wichitas", the term commonly applied, were remnants of tribes affiliated together. A more proper designation would be "Wichitas and affiliated bands", which in the second half of the nineteenth century included the Wichitas, Caddoes, Wacoes, Towacanies, Keechies, Delawares and Ionies; United States v. Choctaw Nation, 179 U. S. 501. On the matter of terminology see H. E. Alvord to Com. Ind. Aff., Oct. 10, 1872, Ind. Aff. 1872, p. 134. In 1851 the Wichitas proper were about 500 in number; in 1863 they and the affiliated bands numbered about 1,900.
Indians, Stokes and Arbucke at Camp Holmes3 on August 24 concluded a treaty4 with the representatives of these Indians. In article four of the treaty it was understood and agreed by all the nations or tribes of Indians parties thereto, that each and all of the said nations or tribes should have free permission to hunt and trap in the Great Prairie west of the Cross Timber,5 to the western limits of the United States. At Fort Gibson on May 26, 1837, Stokes and A. P. Chouteau, representing the United States, concluded a treaty6 with the chiefs, headmen and representatives of the Kiowa, Kataka and Tawakaro nations of Indians. Article four of the treaty of Camp Holmes was inserted as article four of the treaty of 1837.
During the twenty years following the treaty of Camp Holmes the Wichitas gradually moved eastward from the lower waters of the North Fork of Red River to the ninety-eighth meridian in the vicinity of Rush Springs. The Choctaws regarded the Wichitas and other Indians who "intruded themselves" within the Choctaw country as a "nuisance". In 1854 the Choctaws demanded that the United States remove them immediately, adding that if the demand were not complied with, the Choctaws would remove them, using force if necessary.7 Robert S. Neighbors, Special Indian Agent, on February 1, 1855 suggested the propriety of negotiating with the Choctaw delegation then at Washington for a tract of land near the Wichita Mountains, for the colonization of the Wichita Indians, and such other prairie Indians as might be convenient to that location.8 In the following June the United States con-
3Camp Holmes was located about five miles northeast of the present site of Purcell. The preamble of the treaty refers to Camp Holmes as being on the eastern border of the Grand Prairie.
5The plural form "Cross Timbers", is generally applied. The McCoy plat of Cherokee lands made in 1837 locates the Cross Timbers just northeast of the point where the North Fork of the Canadian crosses the southern boundary of the Cherokee Outlet; OIA, Tube 418, map 102. A map sketched in 1859 locates the Cross Timbers between Rush Creek and the Washita River, and south of the present site of Lindsay; and "2nd Cross Timbers" is shown a few miles west of what is now El Reno; see map in S. Ex. Docs., 48 Cong. 1 sess., i(2162) no. 13, facing p. 82. The Cross Timbers was an important datum line, extending from the Cimarron to central Texas; 33 Amer. Journal of Science, 3d ser., 291; Foreman; Pioneer Days in the Early Southwest, pp. 163-166.
eluded a treaty9 with the Choctaws and Chickasaws by which the Choctaw country between the ninety-eighth and one hundredth meridians became the common property of the Choctaws and Chickasaws; and by article nine of the treaty these Indians leased this tract of country, afterwards known as the Leased District, to the United States for the permanent settlement of the Wichita and certain other tribes or bands of Indians. By an act of March 3, 1857 the sum of $50,000 was appropriated for the expenses of collecting and establishing the southern Comanches, Wichitas and certain other bands of Indians on reservations to be located south of the Arkansas River and west of the ninety-eighth meridian.10 A survey of this meridian in 1858 disclosed the fact that for some years the Wichitas had been residing a few miles east of it, in the Chickasaw district. During the same year the Wichitas, under apprehensions of an attack from the Comanche tribe, removed farther east to Fort Arbuckle. The Comanches and Kiowas lived in no particular place. They occupied ranges of country and moved their camps whenever the grass was eaten up or burnt out.11
In the spring of 1859 the Office of Indian Affairs recognized the necessity of removing nearly 1,500 Indians from two reservations12 in north central Texas to the Leased District, in order to protect them from lawless violence of the whites. On March 30 Acting Commissioner C. E. Mix instructed Superintendent Elias Rector that, as the War Department had determined to establish a military post in the Leased District, he should, as soon as the site therefor was selected, proceed with Agent Samuel A. Blain of the Wichita agency to select a proper site for an agency in the same vicinity, and sufficiently near to be protected by the troops, and have the requisite agency buildings erected as soon as practicable.13 He instructed Rector to fix upon a suitable location for the Wichitas and make such an examination of the country
12Mix to Neighbors, March 30, 1859, Ind. Aff. 1859, pp. 263-264. These Texas Indians were fragments of tribes; among them were Huecos, Tonkawas, Tawacaros, Caddoes and Anadahkos. The two reservations in Texas are shown in Royce, Ind. Land Cessions, map 57, nos. 512 and 513.
as would enable him to determine upon the proper places for locating and colonizing the Texas and other Indians, which it was intended to place within the Leased District. Mix stated that in carrying out this policy, the different bands, so far as they could not be united were to be located upon distinct reservations, with circumscribed limits, containing only as much land as might be necessary for their actual occupancy and use, it being the intention, as soon as it could be done, to divide the lands in the reservations into small parcels amongst them in severalty. "As soon as it may be practicable and safe for the Wichitas to remove to their new location", said Mix in his letter to Rector, "you will require them to go there, giving them to understand that it is to be their permanent home, and that none of them must leave their reservation without the permission of the agent. The same understanding must be impressed upon the other Indians, and no white person, except those in the employment of the government, must be permitted to go upon any of the reservations for any purpose whatever, without the permission of the agent."
On June 18 Rector set out from Fort Arbuckle to visit and explore the country lying in the vicinity of the Wichita mountains. He was accompanied by a group of men, including representataives of the Wichitas, Caddoes, Keechies and Delawares. On June 22 he reached the location, near the present site of Fort Sill, indicated by Major William H. Emory as the site for a fort. Rector was not pleased with the lands in the vicinity14 as reservations for the Wichita and Texas Indians. He pursued a northern course until he crossed the Washita near where Anadarko now is. In the valley of the Washita he designated for the Caddoes, Delawares and Texas Indians a rectangular tract of land seven miles wide and nineteen miles long embracing about 85,120 acres. The mouth of Sugar Creek was near the center of the rectangle. Rector proposed that the Wichita agency be located in the southeast corner of the rectangle. Without seeing the lands himself, he designated for the Wichitas and Keechies a rectangular tract of land eight miles wide and thirteen and one-half miles long, the eastern end of which was buttressed against the ninety-eighth meridian. The northeast corner of the tract was on the north side of the
14Rector reported that he and all those who accompanied him considered "the whole region to be utterly worthless, and unsuitable for human habitancy."
Canadian, and belonged to the Seminoles. The tract embraced about 69,120 acres. According to Rector these two tracts of land were the choice of the Wichitas, Caddoes, Keechies and Delawares, and he "consented to these locations."15
Rector returned to Fort Arbuckle on June 30. On the same day Neighbors, Superintendent of Indian Affairs for Texas, arrived at the same place with the headmen of the Texas Indians. In council on July 1 Rector and Neighbors assured the Wichita and Texas Indians that after removal to the lands designated for them they would occupy a country belonging to United States, and not within any State, where none could intrude upon them; and that they would remain, they and their children, as long as the waters should run, protected from all harm by the United States. The Indians expressed their entire satisfaction with the country designated for them, and their willingness to remove thereto at once. It appears that no formal agreement was drawn up. Rector on July 2 reported to the Office of Indian Affairs that he and Neighbors believed it would be found wholly practical, for many years to come, to assign to any of these Indians distinct parcels of land, by metes and bounds, in severalty for each family, and to confine their rights of occupancy and possession to only such land as should be thus covered by individual reservation. The country around the Wichita Mountains, in Rector's opinion, should be reserved as common hunting grounds, for which alone he said nearly the whole of it was fitted. He observed that when danger from hostile Indians should disappear, the flocks and herds of the Wichita and Texas Indians might be driven for pasturage to the great grassy plains that lie east and south of these mountains, and to the valleys of Cache Creek and its many tributaries.16
To Commissioner A. B. Greenwood the two selections of land designated by Rector appeared to be suitable and proper, and the best that could be made within the strip of country to, which they had to be confined. "Having confidence in your intelligence and judgment", he wrote to Rector on August 8, "as in your regard for the interest of the service and the welfare of the Indians, your proceedings in the matter are approved and con-
15Rector to Com. A. B. Greenwood, July 2, 1859, S. Ex. Docs., loc. cit., pp. 18-24; and map facing p. 82.
firmed, except in so far as your arrangement and plans embrace a provision for the Delawares, or other bands of northern Indians, who have for some time been residing in the Choctaw and Chickasaw country".17 A few weeks later the Wichita and Texas Indians were located on the selections of land designated for them by Rector. Further confirmation by the government of these selections of land, or of other lands, to these Indians was left to await the outcome of the Civil War.
In pursuance of a resolution passed by the Congress of the Confederate States on March 5, 1861, Jefferson Davis appointed Albert Pike, a citizen of Arkansas, commissioner of the Confederate government to all the Indian tribes west of Arkansas and south of Kansas. Pike visited the Wichita agency and there on August 12 entered into and concluded certain articles of a convention18 with the Wichitas and other tribes and bands of Indians residing in the Leased District. By article one these Indians placed themselves under the laws and protection of the Confederate States in peace and war. Article three provided that the reserves as then occupied by said several tribes and bands might continue to be occupied by them if they were satisfied therewith; and that if any of them were not satisfied, the tribe or tribes, band or bands dissatisfied, might select other reserves instead of those then occupied by them, in the same leased country, with the concurrence and assent of the agent of the Confederate States for the reserve Indians, at any time within two years from the day of the signing of the articles. Article four provided that each reserve should be of sufficient extent of good arable and grazing land amply to supply the needs of the tribe or band that was to occupy it; and that each should have a separate reserve, unless two or more should elect to settle and reside together and hold their reserves in common. The boundaries of reserves should be plainly marked. "Each tribe or band", reads article five, "shall have the right to possess, occupy, and use the reserve allotted to it as long as grass shall grow and water run, and the reserves shall be their own property, like their horses and cattle." In article eighteen the bands and tribes agreed to remain upon their reserves,
18The articles of convention, dated Aug. 12, 1861, are in H. Documents, 56 Cong. 1 sess., lxx(3967), pp. 542-548.
and not at any time to leave them in order to make crops elsewhere.
On August 13 Pike placed his signature and seal to an article supplementary to the convention. The article stated that it was well known to all surrounding tribes and universally acknowledged that from time immemorial the Wichitas, of whom the Hue-cos and T-hua-ca-ros were offshoots, possessed and inhabited to the exclusion of all other tribes and bands of Indians, the whole country lying between Red River and the Washita, from their junction to the west of the Wichita Mountains, and with the aid of the Ta-ne-i-weh band of the Ne-um held all the country against all comers, and had their villages and fields in the valleys of the Wichita Mountains and upon the creeks, and there cultivated the soil, raised stock, and led an industrious life; and that all of these facts were known to Pike twenty-nine years previously. In the article Pike recognized the claim of the Wichitas to compensation for lands in the Choctaw and Chickasaw country between Red River and the Washita as just, and it was provided that the claim should be submitted to the President of the Confederacy for his consideration, who, if he should also agree that it was just, should determine what amount should be paid or allowed the Wichitas in satisfaction thereof, and what manner that amount should be paid; and that that amount should accordingly be paid them in such manner as he should direct. The Congress of the Confederate States subsequently ratified all these articles except two, which had no relation to land matters. To what extent the articles represented the sentiments of the Wichitas it is not easy to say. The Wichitas soon found themselves in difficulty with the Southern Confederacy and sought refuge in southern Kansas.
The Choctaws and Chickasaws by a treaty19 of April 28, 1866, ceded the Leased District to the United States. In the spring of 1867 there were about 1,500 Indians of different tribes living there. About the same number of Wichitas and affiliated bands were living in what is now the vicinity of Wichita, Kansas. Secretary O. H. Browning on March 30 directed that all these Indians be brought together on one reservation in the Leased District.20
He suggested that the reservation be about twenty miles square, or if in that shape to contain about four hundred square miles; and that it be located between old Fort Cobb and the Canadian River. However he left to Agent Henry Shankin and John L. Bogy the decision as to where the reservation should be made. Before the close of the year the Wichitas in Kansas were removed to the vicinity of their old home on the Washita, just west of the ninety-eighth meridian; and Acting Commissioner C. E. Mix recommended that liberal provision be made to establish them upon a suitable reserve in the Leased District. On October 1, 1868 Shankin recommended that a treaty be made with them and affiliate them with some tribe further advanced in civilization, as it was the policy of the government to locate other tribes in that vicinity.21
Special Commissioner Charles F. Garrett wrote of the Wichitas who were removed from Kansas: "Despirited and dispairing of ever regaining their beautiful homes in the Wichita mountains where the bones of their ancestry have reposed for ages, and obtaining compensation for their losses or reward for their loyalty, they appear unwilling to improve their homes unless first assured to them under solemn treaty stipulations, accompanied by reasonable indemnity for the magnificent domain of which they have been dispossessed, and which, without consultation with them, and without regard to their prior territorial rights, has been again and again ceded by the United States to other parties."22 In the summer of 1868 the Senate ratified two treaties23 whereby the southern half of the Leased District was set apart for the absolute and undisturbed use and occupation of the Kiowas, Comanches and Apaches, and for such other friendly tribes or individual Indians as, from time to time, they might be willing with the consent of the United Sttaes to admit among them. The remainder of the Leased District was included in the tract of country whereon Presdient Grant by an executive order24 of August 10, 1869 directed that the Cheyennes and Arapahoes be located. It was
23Treaty with the Kiowas and Comanches, concluded Oct. 21, 1867, Kappler ii, 977; treaty with the Kiowas, Comanches and Apaches, concluded Oct. 21, 1867, ibid., p. 982.
thus apparent that if the Wichitas were to hold and occupy a portion of the Leased District, in theory as well as in fact, some alteration of the map of that region was necessary. The Wichitas wished to live in peace and be permitted to own the ground they cultivated and occupied.25 They continued to assert the claim that a large tract of land, including the Leased District, belonged to their tribe from time immemorial. The United States never recognized this claim. To sustain it the burden of proof rested on the Wichitas to show that their use and occupation of the lands were actual, not merely desultory or constructive.
The Secretary of the Interior on February 21, 1870 approved a recommendation of the Office of Indian Affairs, suggesting that steps be taken to provide the Wichitas with a permanent reservation, as near their old homes as might be, "where the land is not already claimed, and not subject to encroachment".26 In accordance with the direction of the Office of Indian Affairs, Sub-agent Jonathan Richards, Agent Laurie Tatum and Lieutenant S. P. Jocelyn held a council with the Wichitas about the middle of May. The Indians expressed themselves in favor of having a separate agency; and they wished to be separated from those Indians who continued in their nomadic and depredating habits. After considering the matter a few days, the Wichitas agreed on May 24 to accept as their reservation a tract of country bounded on the east by the ninety-eighth meridian, on the north by the Canadian River, on the west by the line drawn north and south through the mouth of Pond Creek, and on the south by a line drawn from the mouth of Pond Creek to the point where the Little Washita River crosses the ninety-eighth meridian.27 The tract of country embraced the lands between the Keechei Hills and the Washita River, known as the Eureka Valley. Although the Wichitas considered the proposed reservation a small one, they expressed a desire to have it made secure to them as soon as practicable. Superintendent William B. Hazen and Superintendent Enoch Hoag estimated that the proposed reservation embraced about 500,000
26Act. Com. W. F. Cady to Sec. J. D. Cox, Feb. 16, 1870, OIA, Rpt. Book 19, pp. 186-188; Cox to Com. Ind. Aff., Feb. 21, 1870, OIA, Rec. Letters Sent, No. 9, pp. 444-445.
27The proceedings of the council of May 24, 1870, and a map of the proposed reservation are in OIA, Upper Arkansas, H. 1177-1870; Richards to Hazen, May 24, 1870, ibid.; Hazen and Hoag to Com. E. S. Parker, June 15, 1870, ibid.
acres and they believed it to be "substantially the reservation" selected by Rector in 1859. On June 15 they recommended that it be set apart as a permanent reservation for the Wichitas. They stated that the Eureka Valley, although included in the Kiowa, Comanche and Apache reservation, rightfully belonged to the Wichitas; and they recommended that measures be taken by the government to have the Kiowas, Comanches and Apaches accept in lieu thereof certain lands in Greer County.
The question of securing a permanent reservation for the Wichitas was allowed to drift about two years. On May 29, 1872 the following clause was inserted in the Indian appropriation act; "For subsistence of the Arapahoes, Cheyennes, Apache, Kiowas and Comanche Indians, and Wichita Indians (and for transportation of the same), who have been collected upon the reservatious set apart for their use and occupation, two hundred thousand dollars".28 In accordance with the direction of the Office of Indian Affairs a delegation of the Wichitas in the autumn came to Washington, under the supervision of Captain Henry E. Alvord. In a report29 of October 10 Alvord stated that the Wichitas
felt some doubt about being allowed to retain the country they occupied. He recommended that the country between the main channels of the Canadian and the Washita, from west longitude 98 degrees to 98 degrees and 30 minutes, be set apart as a permanent reservation for them. On October 19 Commissioner F. A. Walker concluded an agreements30 with the Wichita delegation
whereby the United States granted to the Wichitas and other affiliated bands, for a home, this tract of country, extending west however, between the main channels of the Canadian and Washita, to the line of 98 degrees and 40 minutes. The tract of country as thus defined embraced 743,610 acres and within it were, for practical purposes, the two selections of land designated by Rector in 1859. In consideration of this proposed reservation, the Wichitas in article two of the agreement ceded and relinquished to the United States all right, title, interest or claim of any nature whatsoever, in and to any lands in Texas, Louisiana, Indian Territory, or elsewhere within the limits of the United States. The agreement was signed by nine chiefs and delegates of the Wichitas.
In his annual report31 Walker recommended that effect be given to the Wichita agreement by Congress at as early date as practicable. He stated that the Wichitas had no treaty relations with the government, nor any defined reservation; and that they absolutely required a reservation which they could call their own. The Secretary of the Interior transmitted the agreement to Congress on January 6, 1873, but it was not ratified by that body. In the Indian appropriation act32 approved February 14, 1873, there was inserted the above quoted clause from the act of May 29, 1872. The Indian appropriation acts33 approved in 1874 and 1875 included similar clauses, and added the following words: "Provided, that this appropriation shall be expended only on half of those Indians who go and remain upon said reservations and refrain from hostilities." For more than ten years following, the annual Indian appropriation acts always included clauses similar to that quoted above from the act of May 29, 1872, the sums appropriated ranging from $240,000 to $413,000.
In 1883 Agent Philemon B. Hunt considered it highly important that the Wichitas be given a reservation on which they could feel perfectly seeure.34 "As it is", he said, "they have no assurance of anything." Commissioner Hiram Price, who went into the reservation question at considerable length,35 reached the conclusion that the occupancy of the Wichitas had not been such as to impeach the title to lands acquired by the United States from the Quapaws by the treaty of August 24, 1818. Price held that the Wichitas by the agreement of October 19, 1872, relinquished all claim which they might have had before that date to any and all lands within the United States, except the reservation occupied by them; and he considered that if the agreement had been confirmed by Congress at the time, its validity would never have been disputed or questioned. "I am convinced", he said, "that the only obligation now existing upon the Government is that of confirming to these Indians by a secure and permanent title the lands now occupied by them. To this end the agreement of
October 19, 1872 should be ratified by Congress and title confirmed by patent." The question of the title or rights of the Wichitas in and to the lands of the reservation they occupied was given its repose until the matter of allotment came up. The Office of Indian Affairs considered that under the General Allotment Act of February 8, 1887 no part of these lands could be taken away from the Wichitas without their consent,36 they having been in effect set apart for their use by executive action and recognized as such by Congressional appropriations. Because the Wichita reservation was established by an unratified agreement, and yet maintained its identity as an occupied reservation, it has a place of peculiar important in the history of the lands of Oklahoma Territory.
36Com. T. J. Morgan to Sec. Int., Sept. 26, 1891, S. Ex. Docs., 52 Cong. 1 sess., i(2892), no. 14, p. 4.