Bishinik, late 1988 and early 1989

Looking Back

Tribal land to private land: A century of Oklahoma Choctaw Timberland Alienation

This is the first of a series written by Sandra L. Faiman-Silva, previously published in the October 1988 issue of Journal of Forest History. The author spent two years in the Talihina, Oklahoma area when her husband served as a doctor at the Talihina hospital from 1980-1982. (Note: see her book, Choctaws at the Crossroads : The Political Economy of Class and Culture in the Oklahoma Timber Region by Sandra L. Faiman-Silva, Published 1997 ).

The Choctaw of southeastern Oklahoma over the last two centuries have suffered an untimely and inopportune relationship to prominent events in world and national history, as a result of which they have lost tribal control of prime farmland and later prime timberland, in two different parts of the country. At the turn of the nineteenth century the Choctaw still occupied their aboriginal homeland in the highly desirable cotton producing region of the Mississippi valley. Between 1801 and 1820 they ceded approximately half of their tribal land to whites, most of it through the persistent efforts of John C. Calhoun, secretary of war under President James Monroe (1817-20). When Calhoun appointed Andrew Jackson as Chief negotiator for removal of the Choctaw in 1820, Calhoun’s own moderate negotiating tactics gave way to Jackson’s unequivocal stand in favor of early removal to Indian Territory.

The Treaty of Doak’s Stand, signed in 1820, sealed the fate of the Choctaw. In it they ceded about one-third of their Mississippi land holdings, about five million acres, in exchange for approximately thirteen million acres of land in what is today the southern half of Oklahoma and western Arkansas.¹ The Choctaw removal to Indian Territory, now the state of Oklahoma, between 1829 and 1831 became known as the Trail of Tears.

The tribe was again obliged to accommodate white land hunger when new treaties permitted two railroads to be constructed through the relocated Choctaw Nation after the Civil War. A small population of white government agents and shopkeepers sanctioned under the tribal permit system quickly grew by the 1880s to outnumber the Indians themselves. Often unruly and increasingly vocal, whites clamored for more direct access to the tribal land base. 2 The tribe enacted several laws to counter growing illegal entry by whites, including an ordinance in 1877 calling for the immediate removal of illegal residents and the sale of their property, but these laws met with little success. By 1890 the white population of over twenty-eight thousand far outnumbered the Choctaw, estimated to number ten thousand. 3

In the early twentieth century, the Choctaw suffered a third assault, this time on their last significant tribal asset – timber and tribally owned timberland. This assault, like previous events in Choctaw history, resulted directly from Anglo-American expansion. The struggle over Choctaw resources was not resolved until whites succeeded in terminating collective ownership of the Choctaw tribal estate and replacing it with individual land allotment in the early twentieth century.

This article analyzes conflicts in the late nineteenth and early twentieth centuries among various factions vying for control over the Choctaw Nation: the federal government, the tribe, and the private corporate sector of American society, particularly timber and railroad interests. The most important timber companies operating in the Choctaw region, until recently, were the enterprises of Hans and Herman Dierks, whose land holdings became part of the multinational Weyerhaeuser Company in 1969. Throughout the nineteenth and most of the twentieth century, federal and regional policies favored the rise of timber corporations in the region at the expense of the former landowners, the Choctaw tribe. The result was to deprive the Choctaw of their land, political power, and self-determination – reducing them to dependency

Tribal Resource Use in the Late Tribal Period, 1865 to 1903

The 1829 Treaty of Dancing Rabbit Creek, which led to the Trail of Tears, gave the relocated Choctaw Nation an estate bounded on the north by the Arkansas and Canadian rivers and on the south by the Red River. Traversing the east-central portion was the Ouachita Mountain range, an extension of the Arkansas Ouachita chain, which includes the Kiamichis.

Following resettlement, many full-blooded Choctaw occupied small parcels of land in the Kiamitia Mountains timber region, today the Kiamichi Range, and subsisted mainly through small-scale farming, and animal husbandry, supplemented by hunting and fishing. Small remote towns such as Skullyville, in the northern hills of what is now LeFlore County, served the meager needs of the largely self-sufficient population. Named after the Choctaw word skulla, meaning “bit” or “one dime” (thus, a place where one could spend his small change), Skullyville during the 1840’s had a few cabins, a dry-goods store, and a blacksmith shop.⁴ Larger settlements sprang up along principal stagecoach routes and became centers of federal Indian agency operations, trading posts and gristmills.

The Choctaw adopted a tribal constitution within three years of their arrival in Indian Territory. Land and locally abundant natural resources, including timber, were held under collective ownership through an elaborate system of tribal laws and ordinances, enforced by means of traditions brought from Mississippi, including lighthorsemen who brought guilty parties to trial and pronounced sentences. 6

Because this region of widely dispersed, traditionally oriented Choctaw subsistence farmers was sparsely populated and poorly policed, with only a rudimentary system of roads, it became a prime ../../databasepix/Bell/target for infiltration by whites interested in Choctaw timber. Illegal activities could continue unnoticed by tribal authorities for months. Furthermore the rural full-blood population, which was not well informed about the entrepreneurial “wheelings and dealings” of the wider society, therefore became an easy ../../databasepix/Bell/target for exploitation and general abuse of tribal permit laws.

The Civil War served as a catalyst for events that profoundly affected the Choctaw and other southern and western Indians, particularly the Five Civilized Tribes. 7 The Choctaws, as slave owners, sided with the Confederacy in the war, although few Choctaw actually fought as Confederate soldiers. 8 To penalize the tribe for its alliance with the South, the federal government voided earlier Choctaw treaties and in 1866 drew up a postwar treaty, according to which existing agreements could be rewritten to open Indian Territory to white settlement and business exploitation such as railroads. The treaty of 1866 granted rights-of-way for two railroads to be constructed through Indian Territory, one to run north and south, another east and west. In the same treaty the Choctaw authorized future surveying and division of tribal lands, but only if and when the tribe consented to allotment in severalty. 9 Finally, the treaty established U.S. courts in Indian Territory for the first time. 10

NEXT MONTH: The Railroads …

1. Arthur H. De Rosier, Jr., The Removal of the Choctaw Indians, pp 34-35, 60-61.

2. Jesse 0. McKee and Jon A. Schlenker, The Choctaws: Cultural Evolution of a Native American Tribe, pp.90-91.

3. Angie Debo, The Rise and Fall of the Choctaw Republic, 2nd ed. p. 222.

4. Five Tribes, Annual Report (1901) p. 17

5. Norman Arthur Graebner, “Pioneer Indian Agriculture in Oklahoma,” Chronicles of Oklahoma 23 (Fall 1945) 236, 242-43, Debo, Rise and Fall, pp 60 110, 111.

6. DeRosier, Removal of Choctaws, p. 8

7. The Five Tribes included the Choctaw, Chickasaw, Creek, Seminole, and Cherokee, all forcibly removed to Indian Territory in the early nineteenth century during the infamous Trail of Tears.

8. Debo, Rise and Fall, p. 82

9. This legal term refers to land held by separate and individual ownership.

10. Debo, Rise and Fall, p. 89

Part 2 of a series

The Railroads . . .

Three factions struggled over the future of Indian Territory during the period between 1865 and 1907: the Choctaw tribe, the federal government, and private corporations, especially railroads. Over the years the tribe itself continued to develop and consolidate its laws, codes, permits and court procedures to protect its land and people from increasing white encroachment. The tribe also faced the dilemma of reconciling its traditional culture with the growing industrial society around it and with the nascent regional timber and mining industries. The federal government supervised the Choctaw tribe through the Department of the Interior.

The Department was responsible for properly managing the affairs of the tribe, disbursing tribal assets, and enforcing tribal laws, but the various agencies and missions under the department’s umbrella, including the Bureau of Indian Affairs and the General Land Office, often competed or fought with each other.

Finally, the private and corporate sectors of American society, including the highly powerful railroads, pushed to open up Choctaw lands for white settlement, the exploitation of natural resources, and eventually the manufacturing of finished products for expanding markets elsewhere.

The tribes, the federal government, and private enterprise interacted, not always legally or ethically, to dissolve the Choctaw tribal estate by 1907 and replace it with a private land-owning class dominated by corporations and individuals pursuing their own aggrandizement rather than the tribe’s welfare.

Railroad, coal and timber enterprises enhanced each other’s growth. Corporations controlling capital-intensive transportation were in an excellent position to take over the resource-extraction enterprises to which they were closely tied. Even today, the sheer weight of timber makes it difficult and costly to transport long distances. Timbermen in the Choctaw Nation relied on local rivers, mainly the Kiamichi, or on overland transport to bring logs to the main rail lines after 1882. 11

The treaty of 1866 opened a crack in communal land ownership by allowing railroads access to tribal lands through congressional mandate, thus undermining tribal laws and self-determination. The predominant sentiment at the time was that termination of tribal status was both inevitable and justified by the moral and economic superiority of whites. This sentiment prevailed not only in Congress but among the white population as a whole – even in the more liberal northern states. 12

In 1864, when Choctaw tribal officials met with government representatives at Fort Smith, Arkansas, to discuss the postwar treaty, the railroads sent spokesmen to defend their own interests and “woo” tribal leaders. Commissioner of Indian Affairs Denton Cooley was in charge of the negotiations and strongly supported railroad expansion into Indian Territory, calling it “an inevitable step in ‘the progress toward final settlement of the questions remaining open in regard to the reorganization of Indian Territory’ ” 13

Cooley warned his “erring children”, as he called the Five Tribes, that they had committed a “great crime” by supporting the Confederacy and must pay with their most valuable assets: Their land and tribal annuities. 14

Railroad and industrial lobbies made the 1860’s a busy period in Congress for various pieces of legislation aimed at undermining tribal autonomy in Indian Territory. The Choctaw sent a delegation to Washington, D.C. in 1870 to lobby against pending legislation and proposals for railroads, surveying parties, and a territorial government, all of which would clearly violate existing treaties. Peter Pitchlynne, a member of the Choctaw delegation, warned the tribe that congressional activities were “startling and alarming, prompted and . . . urged by a combination of railroad speculators, who hoped . . . to possess themselves for a minimal consideration of immense quantities” of Choctaw, Chickasaw, Creek and Cherokee land. He called the railroad lobby a “curse” and told his delegation to deal only with the railroad company actually possessing the right-of-way so as to Aconcede …what the treaty compels, and no more.” 15

Through the 1870’s and 1880’s, commissioners and local Indian agents continually complained that timber was being illegally cut and removed from the Choctaw Nation and that the tribe was powerless to stop this depredation. Individuals and Corporations flagrantly violated tribal laws to obtain tribally owned commodities for both local construction and export. Railroad owners persistently denied any wrongdoing, claimed ignorance of tribal laws and policies as an excuse, and generally refused to operate within the guidelines set by the tribe.

Despite Choctaws laws passed to protect and govern tribal land throughout the 1880s and 1890s, the federal government and private citizens gained increasing control over tribal affairs. Overriding tribal mandates, Congress authorized rights-of-way to three railroads through the Choctaw Nation between 1884 and 1888. The tribe enacted legislation in 1883 prohibiting railroads from constructing branches to any pinery or coal mine without first obtaining tribal consent. Yet Congress again undermined tribal law in 1890 by allowing existing railroads to construct branches at will. 16

These acts gave railroads and other developers almost unlimited access to tribal resources. By 1902 there were an estimated 780 miles of track in the Choctaw Nation alone.

Next month – Alienation of Choctaw land …

11. Five Tribes, Annual Report (1882), p. 206. U.S. Department of Commerce and Labor, Standing Timber, part 1 of The Lumber Industry, pp. 3-4; P.K. Heerwagen, “A Logger Remembers,” Oklahoma’s Orbit 17 November 1963.

12. Angie Debo, And Still the Waters Run pp. 20-22.

13. Miner, Corporation and the Indian, p. 8.

14. “Address by P. Pitchlynne and Winchester Colbert to the Choctaw and Chickasaws,” 12 July 1866, Indian Archives, Choctaw-Federal Relations, Box 17644, Oklahoma Historical Society.

15. OHS Indian Archives, Box 17653.

16. “Laws of the Choctaw Nation … 1890,” Choctaw-Railroads, OHS Indian Archives, Box 19466; Bill No. 23: An Act to Prevent the Building of Railroads and Railroad Branches … 1890,” Choctaw-Federal Relations, OHS Indian Archives, Box 19462; Commissioner of Indian Affairs, Annual Report (1890) pp. 96-97.

Part 3 of a series

Alienation of Choctaw Land. . .

The final alienation of Choctaw land was realized by the Dawes Severalty Act in 1887 and the Curtis Act of 1898. These acts effectively marked the final political subjection of the Choctaw Nation by the United States. This sweeping new legislation met almost all longstanding demands for new corporate development and white territorial expansion.

Whites took the passage of the Curtis Act as license to ignore tribal laws, although these were still in full force at the time. They evaded permit taxes, fenced lands illegally, and refused to vacate lands claimed by allottees. Although the assistant attorney general for Indian Territory ruled in 1900 that tribal laws were still in full force and that intruders and other lawbreakers should be removed from the nation, the ruling had almost no effect. 17

The timberlands in southeastern Oklahoma were especially attractive to timber developers after 1900, not only because timber and the land itself were so cheap and readily exploitable under the allotment system, but also because of circumstances in the nationwide timber industry at the time. Decades of logging had severely depleted the forests of the northeast and north-central United States by 1900.

Choctaw tribal land was legally unavailable to private purchasers until allotment was completed after 1903. The allotment process gave individual Choctaws land that they were free to sell, lease or otherwise use as they wished.

Certain provisions in the Curtis Act and the Atoka Allotment Agreement, and subsequent acts made it especially easy for individuals to defraud unsuspecting Choctaws and particularly to acquire allottees’ so called surplus land at very low prices. Each basic share was 320 acres of “average allottable land,” worth about $1,040. Parcels were also disbursed to freedmen, intermarried whites, and Mississippi Choctaws living in the nation. Individuals typically chose a tract equal to 160 acres of Aaverage allottable land,” which was designated their “homestead,” generally the land on which they were living when allotment took place. The remaining lands due the allottee, designated the “surplus,”would be assigned elsewhere in the nation, often in the prairie region in the western counties of the Chickasaw Nation.

Speculators and outright defrauders became interested in the surplus land. Because all but the homestead was of little value to the allottee, he could then be induced to sell his surplus land to the speculator for a fraction of its worth. Many allottees turned over deeds to surplus lands in return for mere assistance in choosing sites and transportation to the land office. Some lumber dealers assisted Choctaw allottees in selecting homesteads in choice timberland and then offered the allottees a mere pittance for the timber, leaving them with logged-off mountain homesteads nearly worthless for agriculture.

Reforms were attempted. In 1903 the Commission to the Five Tribes proposed forbidding full-blood allottees to be accompanied by speculators or agents when choosing allotments. They further resolved that full bloods should not be allowed to choose widely separated tracts of land if such tracts did not obviously benefit the allottee in some way. 18 The U.S. Attorney General ruled against these resolutions, declaring that they deprived the allottees of their legitimate rights. 19

During 1903 the Indian Rights Association uncovered irregularities in practices of the Commission to the Five Tribes itself. The investigation revealed that all members of the commission, including its chairman, Tams Bixby, were high officials of various private trust companies that leased and managed estates for Indian allottees. Also implicated in these land scandals were officials of the Justice Department, the Internal Revenue Bureau, the Inspector for Indian Territory, the town site commissioner, and even the U.S. Marshal for Indian Territory.
Lands allotted to children of allottees, including valuable timberland, also became the ../../databasepix/Bell/target of exploitation. Local courts routinely declared natural parents, particularly full bloods, incompetent and assigned whites as guardians for minor children. 20 Timber dealers acting as guardians would often select allotments in the choice timber region, then sell the timber at bargain basement rates, often to themselves, and finally retain most of the sales price as payment for their services. 21

By 1900 the Commission to the Five Civilized Tribes began to realize that a substantial tract of timberland in the Choctaw Nation, estimated at over 2.3 million acres, would remain unalloted after all allotments had been made.

Next month – Fraudulent purchases …

17. Ibid. (1900), pp. 18, 45.

18. Five Tribes, Annual Report 1904, p. 42 and ibid. (1905), pp. 36-37.

19. Ibid. 1904, pp. 43-44.

20. U.S. Inspector for Indian Territory, Annual Report (1904), p. 39.

21. Choctaw-Estates, OHS Indian Archives, box 17632; Debo, And Still the Waters Run, pp. 106-13.

Fraudulent Purchases

Part four of a series

The Commission to the Five Civilized Tribes determined in 1903 to withhold from allotment all lands in the Nation containing pine timber of commercial value (1,247,473 acres), so as to protect the timber from further depredation and allow for its disposal in a manner more profitable to the Choctaw. 22 Simultaneously the commission chairman, Tams Bixby, informed various federal officials including the Departments of Agriculture and the Interior, that the time was ripe for the government to include these timberlands in a proposed forest reserve. 23

Setting aside Choctaw lands for a forest reserve had been proposed by both public and private parties during the period. At the time of Bixby’s proposal, a private developer offered to purchase one hundred thousand acres of forest land for a private forest reserve. The federal government was also extremely interested in the forest reserve proposal, as shown by the comments of the acting director of the Geological Survey in November 1906:

These forests deserve special consideration, since the United States Bureau of Forestry is, and has been for some time, engaged in devising means of extending the native forests in the regions of Oklahoma and Indian Territory. The Kiamichi Mountains are but a small part of the stony, mountainous forest lands in the southeastern Choctaw Nation, the most of which are public Indian domain. The income to be derived from these forests, properly conducted, would, without doubt, more than pay the appraised value of the lands, and at the same time the forest may be kept intact for the continuous enjoyment and profitable use of the inhabitants in the future. 24

This proposal would have permitted the government to purchase land from the, tribe out of the profits from selling the timber reserves on that land. Not only would the United States Government obtain a desired forest reserve in Indian Territory, but they would obtain it at almost no out-of-pocket cost!

The Choctaw almost unanimously opposed the Commission’s decision to withold the land in the pine timber region from allotment, since many allottees, particularly full bloods, would thereby be deprived of homesteads upon which they had already built improvements and constructed homes. Following an October 1903 request by the tribal council, the Secretary of the Interior declared in May 1904 that lands could not be withheld from allotment by arbitrary decision of the Commission to the Five Tribes. Selection of allotments in the timber district significantly increased as a result.

The proposal to create a forest reserve, apparently the reason the Choctaw land was withdrawn from allotment in the first place, was never sent to Congress for ratification and therefore the reserve never became a reality during this period. The tribe still possessed more than two million acres of unallotted land in 1908, when officials of the Interior Department and members of Congress began to propose selling that land under the procedures for disposing of surplus land in the act of 1906. Tribal leaders, facing a glutted land market, agreed to sell their surplus land for cash that allottees could use to construct urgently needed improvements on their own allotments. 25

The tribe’s worst fears were realized, however, when government supervised sales began. Although not authorized by Congress, the Department of the Interior between 1909 and 1911 began to take steps toward selling Choctaw timberland, including cruising the timber. 26 The federal government itself apparently undervalued the timberland it proposed to purchase for its forest reserve. Congress in 1910 offered to purchase approximately 1.2 million acres of unallotted land at a flat rate of $1.50 per acre for the standing timber.

Testimony before an investigating committee claimed that this price was far below market value. One individual remarked, “There is not an acre of this land that the timber is not worth three times the amount which the Government should pay-not an acre within the timberbelt. It is proposed to take the land in which these people have a vested right under Act of Congress at an arbitrary price far less than the actual market value today.” 27

Back in 1904 the commission to the Five Tribes in fact had noted that the appraised value of pine timber at that time was “often … as much as ten times the appraised value of the land itself.” 28 Not only were private citizens defrauding Choctaw of their land and timber, but even the federal government was taking the opportunity to acquire timber at the cheapest possible price.

Next month – Charges Against The Courts..

23. Five Tribes, Annual Report (1904), p. 43; U.S. Congress, House, “Forest Reserve in Indian Territory,” H. Doc. 509, 59 Cong., 2d sess. (1907), pp. 2-11.

24. U.S. Congress, House, “Forest Reserve in Indian Territory,” H. Doc. 509, 59 Cong.. 2d sess. (1907). pp. 4, 13.

25. “Annual Message of Green McCurtain, Principal Chief, to the Choctaw Council.” 4 October 1909, Choctaw-Principal Chiefs, OHS Indian Archives. box 19457.

26. Phillips, “Ouachita Timberlands,” pp. 62-65

27. Five Tribes, Annual Report (1910), p. 19.

28. Five Tribes, Annual Report (1904), p. 46.

part 5 of a series

Charges against the courts

The restrictions act of 27 May 1908 (32 Stat. 312) dealt another blow to Choctaw allottees. This act removed restrictions on several classes of allottees, including all of less than one-half Indian blood. This act also transferred jurisdiction over the administration of Indian estates and inheritance from the Interior Department to local county courts, ostensibly to expedite land-ownership transactions. 29

The various strategies used earlier by grafters and land speculators to deprive Choctaw of their allottments continued to plague allottees well into the succeeding decades as local courts became responsible for administering Indian estates and as more and more land became subject to alienation through acts of Congress and the process of inheritance. Local citizens and officials were familiar with local land values and property laws, and their affairs were not subject to direct federal scrutiny. They proved even more adept than federal officials had been at acquiring Choctaw land through means both on the edge of the law and outside it.

Charges began to mount that local court officials were colluding with Choctaw guardians and attorneys to defraud allottees. Court investigations of transactions during 1909 and 1910 resulted in federal indictments of more than one hundred persons for unlawful timber cutting on tribal land. Numerous sawmills and cutting operations were closed during this period for operating illegally in the Choctaw Nation. 30

In 1911 the McCurtain County probate court judge and other court officials were implicated in land fraud involving the sale of more than forty-one hundred acres. Investigations resulted in the resignation of the county judge and reimbursement of over sixty-five thousand dollars to minor allottees. 31

Other charges against the courts themselves included: exorbitant fees to administer estates of allottees, as much as ten times what whites paid for the same services and in some instances nearly what the entire estate was worth; children allowed to die by guardians seeking to obtain their estates; 32 and phony wills “signed” by already deceased individuals but fully notarized and accepted as evidence in probate Court. 33

The Department of the Interior began another round of surplus land sales in 1912 through auctions and closed bidding, as stipulated in the Supplemental Agreement of 1902 (sec. 14). Prospective purchasers could bid on as many tracts and as much acreage as they wanted, although the 1902 agreement (sec. 19) actually forbade Choctaw themselves from holding more than 320 acres. The first round of bidding revealed rampant collusion to lower timber prices. Bids submitted in 1912 were found to have been barely above minimum prices set by the Interior Department, and not one tract of land received more than one bid, a convincing indication that bidders had cooperated with one another. The commissioner of Indian affairs supervising the sale rejected all bids in this first round. 34

Contradictions in the evolving land policy enabled outside parties to amass great wealth in timberland, against the expressed will of both the tribe and the state and federal governments. 35 By 1913 more than 1.7 million acres of unallotted land had been sold in the Choctaw/Chickasaw Nations in successive rounds of bidding. The average price per acre received by the tribes was $5.82. By 1916 the average price per acre had fallen to $3.36. 36 Yet a comparable tract of private timberland in Arkansas had increased in value from $1.00 per acre in 1900 to $13.50 per acre in 1904. 37

29. Act of 27 May 1909, 35 Stat. 312, Sec. 6; mills, lands of Five Tribes, pp. 541-42.

30. Commissioners of Indian Affairs, Annual Report (1909), p. 55; Ibid. (1910), p. 19.

31. Ibid. (1911), p. 45

32. David M. Holford, “The Subversion of the Indian Land Allotment System, 1887-1934,” Indian Historian 8 (Spring 1975): 17.

33. U.S. Congress, House, “Investigate Indian Affairs In Oklahoma,” H. Doc, 678, 68 Cong, 1st sess. (1924), p.2.

34. Department of Interior, Annual Report 2 (1913): 429.

35. Phillips, “Ouachita Timberlands,” pp. 69-70.

36. Department of Interior, Annual Report 2 (1914): 418; ibid. 2 (1917): 52.

37. U.S. Department of Commerce and Labor, Standing Timber, p. 197.