BOOK: THE CHEROKEE STRIP LIVE STOCK ASSOCIATION, Federal Regulation and
the Cattleman’s Last Frontier.
AUTHOR: WILLIAM W. SAVAGE, JR.
COPYRIGHT 1973 BY THE CURATORS OF THE UNIVERSITY OF MISSOURI, UNIVERSITY OF MISSOURI PRESS, COLUMBIA, MISSOURI 65201.
BOOK CAME FROM CHEROKEE STRIP LIVING MUSEUM.
1879: During the summer of 1879 the Office of Indian Affairs conducted an appraisal of the Outlet, estimating the worth of its approximately 6.5 million acres to be slightly less than $3,175,000. Settlement of Pawnees, Poncas, Nez Perces, Otoes, and Missouris on 550,000 acres of Outlet land obligated the federal government, under provisions of the 1866 treaty, to pay the Cherokees more than $313,000. Payments made in 1880 and 1881 totaled more then $348,000, yet the National Council continued to instruct tribal delegates “to secure without further delay the remainder of the price still due for these lands.” Under these urgings, the delegates asked Washington for an additional $500,000.
1879: Cherokee Nation appointed L. B. Bell as Special Tax Collector. On August 4, 1879, W. H. Whiteman, agent of the Ponca and Nez Perce, complained about Cherokee taxation to the Commissioner of Indian Affairs. He contended that Bell had abused his authority by granting grazing licenses—permits given to taxpayers—to some undesirable characters. On August 28, because of the furor that Whiteman’s charges created, Cherokee Principal Chief, Charles Thompson, appointed William McCracken and Elias C. Boudinot to investigate conditions beyond the Arkansas River. Their report, which exonerated Bell, provided a detailed picture of early Outlet ranching operations. McCracken/Boudinot: “Approximately 25 taxpaying stockmen grazing 20,000 head of cattle on the Outlet in 1879; thirty others had paid no taxes.” They appended to their report statements from the military commander at Arkansas City and from an agent for the “Pan Handle Texas Stage route,” both testifying as to the impermanency of cattlemen’s improvements. “Fifty cents per head per annum was the tax rate collected by L. B. Bell.” [Military commander at Arkansas City was Lt. Cushman. Agent for Pan Handle: H. A. Todd.]
1879: Dennis Wolfe Bushyhead succeeded Charles Thompson as Cherokee Principal Chief...assessed Boudinot/McCracken report. On November 19 he sent his recommendations to the National Council, then in session in Tahlequah, the Cherokee capital. Bushyhead prefaced his remarks by referring to Article XVI of the Treaty of 1866, which reads in part, “The Cherokee nation to retain the right of possession of and jurisdiction over all of said country west of 96 degrees of longitude until ... sold and occupied.” His purpose was “to show that the right of possession and ... the profits of possession in the lands west of the Arkansas River remain in the Cherokee Nation until the ... lands are settled and sold.” Bushyhead thought taxes too excessive; proposed that assessments be fixed at fifty cents per head for a six- or eight-month period. The tax could then be decreased proportionately for longer terms of occupancy and increased for shorter ones.
1880: Cherokee Treasurer D. W. Lipe personally supervised tax collection in the Outlet in the spring of 1880. [Took over from Bell.] In all, Lipe managed to collect $7,620 during 1880.
1881: Lipe attended ranchers’ meeting in March “to look after the revenue interest of the Nation, and to obtain a general expression of their feelings in regard to paying of taxes the coming season.” The cattlemen were in a bargaining mood and agreed to pay the grazing tax if the Cherokees would sanction the creation of a quarantine line between the Kansas boundary and the Nez Perce reservation for herds moving to market across Indian Territory. Lipe, eager to get on with business concerning taxes, promised to present their request to Bushyhead. The quarantine ground was eventually established, but at a point farther west, where the Chisholm Trail intersected the Kansas border. Yet, despite cattlemen’s assurances, tax collection became no easier. Lipe opened a branch office in Caldwell in the summer of 1881, staffed by J. G. Schrimsher and a deputy tax collector named Brewer. Schrimsher notified delinquent taxpayers to meet their obligations by July 5 or face eviction from the Outlet. Two weeks before the deadline, he urged the Principal Chief [Bushyhead] to request federal assistance in carrying out the expulsions, should his ultimatum fail to produce the desired result. Bushyhead responded by giving Agent John Q. Tufts at the Union Agency in Muskogee a list of the names of recalcitrant stockmen. Tufts thereupon began a sequence of letters that requested authority of Commissioner of Indian Affairs, Hiram Price, to dispatch troops from Fort Gibson to remove the ranchers. Price presented his views to Secretary of the Interior, Samuel J. Kirkwood, re presence of non-taxpaying cattlemen on Cherokee land. Acknowledging that the grazing tax had been sanctioned by the Department of the Interior, Price worked to unravel the complexities of the problem and to define the federal government’s role in solving it. He reasoned that delinquent cattlemen were intruders on Cherokee land and, therefore, liable to removal under the provisions of the Treaty of 1866. But Agent Tufts, the man upon whom fell the responsibility for evicting interlopers, controlled a police force that was “manifestly inadequate for the undertaking.” Price therefore recommended the use of federal troops. Kirkwood sent orders to the War Department on August 26 to remove “delinquent cattle graziers” from the Cherokee Outlet and notified Bushyhead of his action. Price wired Tufts on August 27 that troops would be made available to assist in the eviction of trespassers. Kirkwood’s action came too late to affect revenue collection in 1881. Before the troops arrived in the area the season had ended and herds were turned loose on the Outlet for the winter. Tufts and the federal troops could not sort the cattle of non-taxpayers from among the thousands of head of livestock grazing the pasture beyond the Arkansas, so the efforts of Lipe and his deputies were frustrated for that year. Cherokee Nation collected over $21,000 in grazing taxes during 1881--nearly three times the amount gathered in 1880.
1882: Bushyhead addressed an extra session of the Cherokee National Council. He described the Outlet as a region “steadily acquiring value” for grazing purposes and noted that “the profits or revenues to be derived therefrom should reach the highest equitable amount, with the greatest security.” He had learned in Washington that there was little likelihood “of other Indian tribes being removed” to the Outlet, “as the northern tribes justly protest against being sent thither.” The land was thus available to the Cherokee Nation to do with as it willed—within reason, certainly—and Bushyhead believed that leasing might be the wisest use of this tribal resources. He suggested that arrangements be made with responsible parties “at a rate not less than two cents per acre ... for not less than year nor more than five years,” with payments to be made semi-annually. Lessees would be required to protect timber in the Outlet and to refrain from constructing permanent improvements. The matter, he concluded, required immediate action.
Cattlemen quickly learned of Bushyhead’s views, but few of them showed any inclination to press the Cherokees for leases. Then, in December, 1882, two weeks after the Department of the Interior questioned their right to enclose Outlet range, several prominent ranchers, including Andrew Drumm and Benjamin S. Miller, wrote to the Principal Chief requesting leases on “the Ranges that have been both by courtesy and an unwritten law, considered as ours so long as the lawful taxes were paid.”
1882: In January the Cherokee Tahlequah government via its newspaper, The Cherokee Advocate, stated: “those persons who have cattle grazing on our Strip might as well pay their taxes, and save trouble. Uncle Sam stands by the Cherokees in this matter, and those stockmen who have stock on the Cherokee Strip, and who are kicking against paying taxes to the Cherokee authorities, are simply cutting their own throats—in other words, ‘no pay, no stay.’” Subsequently, the Indians lowered their assessments to forty cents per head annually for cattle over two years old and twenty-five cents per head for all others. Treasurer Lipe reported tax receipts totaling more than $41,000 during the 1882 season.
1882: One of the first cattlemen to approach Cherokee Treasurer, D. W. Lipe, on the matter of fencing was Andrew Drumm, a prominent rancher who had driven longhorns from southern Texas to Kansas in 1870 and was reputedly the first to have grazed stock on the Outlet. Drumm maintained that an increase in the Cherokee tax rate would constitute unjust discrimination. He outlined, early in 1882, the conditions he was willing to meet: “In fencing ... I propose to be governed by the Cherokee Authorities; that whenever, if ever, said ‘Strip’ is transferred to the U. S. Government, or in any other manner disposed of by your Nation, I have the privilege of moving or doing whatever else I see fit to do with my fencing; that for the privilege of so being allowed to graze my stock on the Strip, I propose to pay the Nation Two Thousand Seven Hundred Dollars per year, or just such amount of tax as is now collected upon each head. Providing I am not unjustly discriminated against after I have fenced the range upon which my cattle or stock run; Provided, further, That when I am removed from said Strip, I will leave all the posts and other improvements excepting the wire, which are to go to the Cherokee Nation for its use and benefit.” Lipe issued no official enclosure permits...said he had “no objections” to fencing...he never received formal permission from tribal officials at Tahlequah. In Lipe’s opinion, ranchers strung barbed wire at their own risk and will be responsible for the taxes on all cattle held therein.
1882. In May the Interior Department became interested in the fencing on the Outlet. W. W. Woods, a rancher from Kiowa, Kansas, complained to Commissioner of Indian Affairs Hiram Price that he had been evicted from the Outlet when Andrew Drumm enclosed the land upon which Woods had been paying taxes to the Cherokees for three years. Drumm and his partner, Woods claimed, had “six mule teams in the beautiful cedar timber south of the Cimarron River cutting and hauling posts for their fence.” Interior Department was unconcerned about the range dispute between Woods and Drumm: they were interested only in the report that cattlemen were carrying out timber-cutting operations on Outlet land. Acting Commissioner E. S. Stevens reminded the Cherokee delegates, Daniel Ross and R. M. Wolfe, that Tahlequah had “repeatedly complained to this office on this very subject” and suggested that the problem be brought to the Nation’s “immediate attention in order that steps may be taken to arrest the movement.” Lipe outlined his policy to Bushyhead of no objection to fencing. [Much correspondence between Washington and Nation: no action taken.]
1882: December 28, 1882, Commissioner Price wrote to Secretary of the Interior, Henry M. Teller, urging “an end ... to ... unauthorized settlement and improvement” of the Outlet, motivated from information received from C. M. Scott, a taxpaying rancher from Arkansas City, Kansas. Scott claimed that part of his Outlet range had been illegally fenced by a Cherokee citizen acting in behalf of the Pennsylvania Oil Company. The company’s wire, Scott said, threatened to close United States mail routes across Indian Territory. Price cited an interpretation of the 1866 treaty, issued two years earlier by the Attorney General, to support his contention that fencing on the Outlet was in violation of federal law. He enjoined Teller to use military force to remove enclosures and thereby protect “the rights reserved to the Government.” Teller did not hesitate to act. On December 29, 1882, he sent Price’s letter, together with his own instructions to Secretary of War Robert Lincoln. Upon written request from Agent John Tufts, Lincoln was to dispatch troops to destroy “all improvements of every character” on the Cherokee Outlet, unless they were first removed voluntarily by the cattlemen who had constructed them. Notified of Teller’s decision, Price ordered Tufts to inform ranchers that fences, corrals, and dwellings should be dismantled within twenty days, or federal troops would be sent to carry out the order.”
A letter campaign started from ranches to Teller. B. H. Campbell, of Wichita, who later managed the XIT spread, defended cattlemen’s right to enclose pasture in the Outlet as a practice beneficial to all concerned. No stockman, he said, believed fences gave him permanent claim to Cherokee land, because each was prepared to leave the Outlet whenever the federal government settled Indians on it or opened it to homesteaders. Cattlemen asked flatly that the order be revoked. Letters went forth also to Agent John Tufts. He in turn wrote to Price numerous times.
1883: January 4, 1883, Tufts complied with Price’s earlier instructions and ordered cattlemen to remove all improvements from the Outlet by the first of February. Ranchers responded with fresh arguments. Because of the 1866 treaty, the land was “unavailable for every other purpose than grazing.” Judging that the government had rendered the Outlet useless to red men as well as white, the cattlemen urged suspension of the directive.
In answer to a question raised by Secretary of War Lincoln, Price outlined the legal basis for the fencing order. While the use of federal troops to remove improvements from the Outlet would admittedly be unlawful, the Commissioner justified it as a measure necessary to protect Cherokee lands from intruders...an obligation placed on the United States by Article XXVI of the 1866 treaty. Construction of unauthorized fencing, Price believed, constituted intrusion. He found precedent for this view in an 1834 statute that, according to his interpretation, would make each offending cattleman subject to a fine of one thousand dollars. Price reasoned that enclosures concentrated vast holdings “in the hands of a few moneyed individuals and corporations to the exclusion of many of the less favored.” He felt the situation smacked not only of illegality but also of immorality.
1883: January 9, 1883, Tufts wired Price to ask if the removal order had been rescinded. The Commissioner replied that it had not and that matters were currently in the hands of the military. More letters from cattle interests took place and cattlemen began to create an effective lobby. In mid-January, Price postponed the deadline. He directed Tufts to conduct an investigation of conditions in the Outlet. Specifically, Tufts was to secure information about the quantity of fencing on Cherokee land and obtain the names of those who owned it. In his report, he was to estimate the amount of timber cut from Indian land for fence posts and to evaluate the effect of enclosures on “legitimate trade and travel” and mail routes.
Tufts filed his report on March 1, 1883. Nineteen individuals or companies, he found, had constructed 959 miles of barbed-wire fence on Outlet land. Fences were well supplied with gates and constituted no barrier to travelers or federal mail wagons. Timber had indeed been cut in large quantities, but Tufts attributed the destruction to thieves from Kansas. Cattlemen, he wrote, “neither cut timber themselves, nor do they permit anyone else to do so.” Tufts recommended that ranchers be allowed to continue fencing only if they first obtained permission from the Cherokees, but, he wrote, they should understand that the wire could be removed at the discretion of the Department of the Interior. [Tufts opposed by R. M. Wolfe and Robert B. Ross, Cherokee delegates in Washington, and William A. Phillips, a Cherokee attorney.] The delegates urged seizure by the federal government of all fencing as indemnification for the Cherokees’ losses and concluded with a warning to Secretary Teller of “the danger of rescinding your order.”
1883: March 16, 1883, Teller announced his decision in a letter to Price: “No further fences will be permitted to be constructed on these lands. Those constructed will not be permitted to remain except with the consent of, and under proper and satisfactory arrangements with the Cherokee national authorities, to be secured within reasonable time to be fixed by you; failing in which, the order heretofore given for the removal of the fences will be at once enforced.
Prior to Teller’s pronouncement, Outlet cattlemen had moved decisively to protect their interests. Three years earlier [1880 ?] ranchers had founded a loosely knit “convention” to expedite round-ups and facilitate a policy of mutual assistance. In January, 1883, they met at Topeka, Kansas, and started the Cherokee Strip Stockmen’s Association...at first only activity was to draft letters of protest to the Department of the Interior. On March 6, 1883, they met at Caldwell, appointed a committee of nine to prepare a constitution, bylaws, and a charter of incorporation for a new organization. Within 48 hours, the Cherokee Strip Live Stock Association was incorporated under Kansas law for a term of forty years to promote “improvement of the breed of domestic animals by the importation, grazing, breeding, selling, bartering, and exchange thereof” in places “most advantageously located.” The nine committeemen who drafted the document became directors of the association, and they elected as its president Benjamin S. Miller of Caldwell, one of their number and chairman of the old convention.
The association reserved in its bylaws the right to “purchase or lease any and all parcels or tracts of land, wheresoever situated, as may be necessary” to conduct its business. Payment was $10. Cattlemen outside the Outlet might become honorary members upon the recommendation of the directors. Individual and corporations alike were to have a single vote in the association’s balloting, and the bylaws assured equal consideration for large and small outfits. The association’s secretary was empowered to keep records of all range transfers and lists of members’ brands. Disputes arising between members were to be settled by a board of arbitration consisting of three ranchers appointed by the directors. Decisions of this arbitration body could be appealed to the directors, whose verdict was to be final. In short, the machinery of the association was to function as simply and as efficiently as possible.
1883: Chief Dennis Bushyhead was in Washington on March 16, 1883, when Secretary Teller announced the decision that forbade enclosures in the Outlet. On March 20 Bushyhead met with Hiram Price and assured the Commissioner that he would call an extra session of the Cherokee National Council as soon as possible to discuss a new arrangement with Outlet cattlemen. Bushyhead and Price agreed that Agent Tufts should furnish police to enforce the enclosure ban until the council acted. After the meeting, Bushyhead sent word to John F. Lyons, a Fort Gibson attorney, employed by the Cherokee Strip Live Stock Association, that the federal government would not act immediately to remove ranchers’ fences. Lyons relayed the information to a director of the association, Charles H. Eldred of Medicine Lodge, Kansas...At the meeting in Tahlequah after Bushyhead returned, Directors Eldred and Andrew Drumm were present along with two of their attorneys, John F. Lyons and E. C. Wilson. They found a recurring topic of conversation at Tahlequah due to some Indians who spoke of attempting to lease the Outlet themselves. For years, Cherokee farmers had tried to run their few head of stock on the edge of the Outlet because of the dearth of adequate pasturage in the eastern portion of the Cherokee Nation, but federal troops had arrested and evicted them as intruders. Such treatment was unfair, they argued, as long as white men were permitted there. In any discussion of leasing, they believed, Cherokees should have priority on Cherokee land. On May 10, 1883, the joint committee of the National Council reported two lease bills, only one of which had originated in the council. Both named the Cherokee Strip Live Stock Association as lessee. The council bill rented the Outlet to the association for five years at $100,000 per year; the second measure, which had not been regularly referred to the committee, stipulated that the association would receive a lease for a similar period if it matched the highest bid in excess of $100,000 per year offered for the Outlet by a competing group of cattlemen. On May 14, 1883, the first bill was read on the senate floor. Adhering closely to Bushyhead’s suggestions, it forbade construction of permanent improvements in the Outlet and allowed “such temporary structures as may be absolutely required for the safe and profitable grazing of the stock” only; they were to be “held and declared ... the property of the Cherokee Nation.” According to the measure, cattlemen could not cut timber without permission from Cherokee authorities, and they were bound to prevent anyone else from doing so. They were not to obstruct public highways, state lines, or mail routes. The bill also reserved for the Cherokees sole use of the major salt deposits in the Outlet.
The bill stated the cattlemen’s association was to make payments of $50,000 at Tahlequah on October 1 and April 1 of each year. Grazing permits issued before passage of the bill would remain in effect until their expiration dates but would not be renewed. Ranchers who were not members of the association could not bring herds into the Outlet without permission from the association. Interlopers would be evicted by the Cherokees. Failure to meet payment dates or to comply with other conditions of occupancy would invalidate the lease. The Cherokee Nation, on the other hand, could terminate the agreement on six months’ notice, should it decide to sell the Outlet. Should the association forfeit the lease, the Cherokees could negotiate a new one with other parties under the provisions of the same bill. After much talk and counter proposals, the bill was passed, returned to the senate, and sent to Bushyhead. He approved it May 19, 1883; and Drumm and Eldred formally notified him of their acceptance of its provisions. Bushyhead went to Washington and did not inform anyone of bill for leasing to cattlemen.
On June 28, 1883, Price wrote to Tahlequah that unless the Office of Indian Affairs was notified of a new agreement between the tribe and Outlet cattlemen within twenty days, the order to remove barbed wire would be enforced. On July 5, 1883, Bushyhead and Charles Eldred, who held the power of attorney for the other association directors, signed the lease. It differed significantly from the enable act that Bushyhead had approved a month before. Cattlemen were not permitted to cut Outlet timber for fuel, fence posts, “and other improvements as may be necessary and proper and convenient for the carrying on of their business.” If the tribe sold the land, ranchers could remove whatever improvements they had constructed except those built with Cherokee timber. When the lease expired, or if it were forfeited, all improvements would become Cherokee property. In the event that the tribe sold only a portion of the Outlet, the association would receive on subsequent lease payments an annual rebate of 1.66 cents per acre for the land sold on subsequent lease payments.
Note: John F. Lyons drew up the first lease for Bushyhead. One cannot help but wonder if he had a free hand in drawing up the next lease a month later.]
On July 5, 1883, Bushyhead sent Price a copy of the May 19 act passed by the National Council. He emphasized that cattlemen’s fences had become “the property of the Cherokee Nation, as an attachment of the soil.” Therefore, he said, “the main ground of complaint of such fencing, to wit, that its erection was an invasion of the rights of the nation, is ... removed.” Bushyhead erred. The act made fences tribal property, but the lease did not.
Grumbling among Cherokees continued. They were joined by Elias C. Boudinot, the man who had helped to investigate conditions in the Outlet in 1879. By now an attorney residing in Washington, Boudinot was associated with homesteader groups and certain railroad interests that were committed to opening Indian Territory to settlement. He and a Cherokee named James Madison Bell had started a small ranching operation in the Outlet during 1882, but the entrenchment of white cattlemen there had ended the venture. Although Lyons knew of Boudinot’s criticism of the lease, he did not consider it a serious threat to the association’s occupancy of the Outlet. He acknowledged, however, that the lawyer was persistent, if nothing else. In November, Boudinot announced that he had been “appointed to prosecute the Association,” but his bombast still failed to impress Lyons.”
BOUDINOT AND PAYNE.
Elias C. Boudinot first stimulated the homesteaders’ interest in Indian Territory with a series of letters written to newspapers early in 1879. In mid-February he revealed, in the Chicago Times, that the federal government had, after the Civil War, purchased millions of acres of land from tribes in the Territory. By treaties signed in 1866 with the Creeks, Seminoles, Choctaws, and Chickasaws, the government bought approximately 14 million acres for $1,600,530. More than 1 million acres had been assigned to Pottawatomies and Sacs and Foxes, while Wichita held another 743,610 acres under an unratified agreement with Washington. The rest, Boudinot, declared, was public domain. Located west of the 97th meridian and south of the Cherokee Outlet, this land was “well adapted for the production of corn, wheat, and other cereals.” Stimulated by Boudinot’s report, prospective settlers flocked to the Kansas line. Secretary of the Interior Carl Schurz closely followed newspaper accounts of homesteaders’ growing interest in Indian Territory and became alarmed by the situation. He announced that neither the Homestead Act nor any other federal land legislation applied to the purchased acreage. Any settlement in the area would be illegal. Schurz instructed the Commissioner of Indian Affairs to empower Indians to evict intruding farmers. Then, on April 26, 1879, President Rutherford B. Hayes issued a proclamation warning “certain evil-disposed persons” of the inadvisability of nesting on Indian land.
In the spring of 1880, David L. Payne emerged as leader of the farmers who were “booming” for opening the Indian Territory to settlement. Payne, a one-time guide, scout, Kansas legislator, and petty bureaucrat, had met Boudinot in Washington. Both men enjoyed the support of railroads eager to remove barriers to homesteading below Kansas. Boudinot was content to seek lawful means of achieving those ends, but Payne preferred the more direct method of outright invasion. Between May 19, 1880, and August 28, 1882, the boomer leader was four times arrested within Indian Territory—once escorted to its borders and released, and three times jailed, either by Army or civilian authorities. His raids during 1883 occurred with such frequency that the War Department lost count of them. In the military’s view, “The whole history of Payne’s operations is a farce, in which the Government is, of course, at a disadvantage. There is no punishment for Payne and his followers, the law only providing a fine for such transactions—a sort of punishment easily borne by the impecunious crowd which follows this business of intrusion into the Indian Territory.”
PICTURE ON PAGE 68...BOOMER LEADERS IN 1884: A. C. McCORD, H. H. STAFFORD, DAVID L. PAYNE, G. F. GOODRICH, W. L. COUCH, A. P. LEWIS, JOE PUGSLEY.
Agent John Q. Tufts of the Union Agency at Muskogee shared the Army’s attitude. At first, he had believed that Payne’s evictions would convince the Indians of Washington’s intention to protect their rights, but his conviction was short-lived. Payne’s flagrant and repeated violations of the law brought heated protest from Tufts. Predicting that the Territory would be overrun by homesteaders, in the absence of substantial penalties for invasion, he characterized the government’s efforts to exclude them as “a farce of the first water.” Alert intruders could evade troops, but even if they were apprehended, the law’s leniency allowed them to return almost immediately to the area from which they were evicted. Tufts saw governmental machinery breaking down under the weight of pointless arguments about which court held jurisdiction over Payne and his followers. “It makes little difference where they are tried,” he wrote to the Commissioner of Indian Affairs, “the result will be that they will be fined $1,000 each, and will inform the court that they are dead broke. . . . Payne and his crowd will be intruding again on the same land within six months. Until a law shall be enacted to punish by imprisonment for return to the reservation, after having been removed, it will be a physical impossibility to comply with the treaties to ‘remove and keep out all intruders’ from an agency half as large as the State of New York, with a population of 100,000.”
Boomers turned their attention to the Cherokee Outlet in 1883.
Boudinot had been careful to note that the Cherokee Nation had sold no territory to the federal government and that the Outlet was not public domain, but his delineation mattered little to home seekers who had heard that there was “nothing finer in all the prairie world” than the “splendid piece of property” just below the Kansas line. Yet, while they coveted the land, their initial efforts to secure it proved futile because the settlers lacked an effective base of popular support. To create one, David Payne launched a three-pronged attack on the ranchers in the Outlet. He began a propaganda campaign against them in the boomer newspaper, the Oklahoma War Chief; he argued for a congressional investigation of their lease arrangement with the Cherokee Nation; and he led settlers into their pasture, just as he had invaded land elsewhere in Indian Territory.
Boomers hoped to attract public sympathy to their actions by pointing out that cattlemen occupied land from which all others were excluded. Leases of Indian domain, they argued, were sanctioned by the Department of the Interior in league with ranchers. They were mistaken. Secretary of the Interior Henry M. Teller’s policy was one of non-recognition, although he supported the rights of cattlemen who operated under leases against persons who held no agreement with the Indians. Teller’s pronouncement, originally formulated with regard to leases in the Cheyenne-Arapaho reservation, was later applied to the Cherokee Outlet.
The boomers contended that the lease arrangements promoted the growth of beef monopolies, postponed opening Indian land to settlement, and denied farmers access to vast areas of arable soil. They stated: “The Government owes to its own people every valuable tract of tillable land within our nation’s borders.”
By approving the tribal leases, Washington ignored this obligation.
Payne was obsessed by the idea that the cattlemen who used the Outlet wielded strong influence in the halls of Congress. More than once he offered to prove publicly that ranchers had bribed Indians and federal officials to gain and maintain their lease.
Payne’s recurring sorties into Indian Territory soon split the homesteaders’ ranks. Boudinot remained faithful to Payne, even to the point of formulating plans to file lawsuits against each rancher in the Outlet and declaring that the cattlemen had “violated the law ten times as much” as Payne. Faced with raising money to finance Payne’s defense following each arrest, many of his followers became discouraged and dropped out. Others urged Payne to discontinue “unwarranted raids in the Territory.” This conservative faction made its influence felt in August, 1884, when the Army again arrested Payne in the Cherokee Outlet. The weight of evidence was solidly against him, and homesteaders hesitated to have the matter adjudicated. Payne’s lawyer, seeking a dismissal, promised cattlemen that the range in the Outlet would not “again be troubled in any way by the ‘boomers.’”
Election campaigns of 1884 brought Payne’s followers together again. Benjamin S. Miller, a candidate for the Kansas legislature, became their prime target. [Savage becomes very vague through this portion of book...does not say if Miller was elected or not! Gather that the boomers did not fare well in their campaign against him!]
Caldwell Post, founded in 1879, was editorially undistinguished and given largely to publishing tasteless lampoons of Payne and his followers until Tell W. Walton became its editor in 1881. [J. D. Kelly, Jr., had edited the paper when it first appeared on January 2, 1879, and J. S. Sain assumed control in December, 1880. Tell W. Walton was a man of some standing among local cattle interests, and under his direction the paper grew in influence.
Caldwell Commercial, a rival paper, appeared in May 1880 under the editorship of William B. Hutchison, a veteran Wichita newspaperman and a charter officer of Payne’s boomer organization. At first he assumed a moderate position on the question of opening the Indian Territory to settlement. Gradually his editorial policy shifted away from the homesteaders’ cause. Perhaps he was wooed away by the Outlet ranchers’ money. Cattlemen’s range and brand advertisements began to appear with increasing regularity during the period of the Commercial’s editorial transformation.
May, 1883: Both Caldwell papers merged under the control of the Caldwell Printing and Publishing Company, a joint-stock venture headed by Benjamin S. Miller and John W. Nyce. They published only one paper, the Caldwell Journal, edited by Hutchison. It was solely a cattlemen’s paper, supported almost exclusively by advertising from Outlet ranchers.
October 3, 1883: The Cherokee Strip Live Stock Association announced that the Caldwell Journal would be its “official paper.”
The Cherokee Advocate, official voice of the Indian government at Tahlequah, entered the fray early to defend the rights of taxpaying and, later, leasing cattlemen against those of prospective settlers. Interlopers on the tribal lands—whether renegade cattlemen or homesteaders intent upon opening the country—were treated alike. The Association ranchers who met their obligations as tenants were considered friends, standing “squarely with the Cherokees to defend the rights of both [Indian and stock raisers] against the lawless class.”
Rock Falls. On August 23, 1883, Augustus E. Ivey, a citizen of the Cherokee Nation and sometime journalist who resided in Vinita, wrote to Secretary of the Interior Henry M. Teller, charging that the Cherokee Strip Live Stock Association had acquired its lease of the Outlet “through the most corrupt means.”
[Ivey had once grazed a few head of stock west of the Arkansas River, but the lease arrangement now denied him access to the range.]
A year later his letter reached the desk of Senator George G. Vest of Missouri, who on December 2, 1884, informed Henry L. Dawes, Chairman of the Senate Committee on Indian Affairs, that he could provide “names, amounts, and dates, which show that as widespread a scheme of corruption is today in existence in that Indian Territory as ever obtained in the worst times and under the worst methods known to the States...or any other community.” Vest’s comments spread quickly, and within twenty-four hours the Senate passed a resolution instructing Dawes’ committee to determine the extent to which leases had been made in Indian Territory and to compile lists of the signatories. The committee was to investigate the process by which cattlemen acquired leases and to decide whether or not such agreements were “conducive to the welfare of the Indians.”
1884: Late in the spring of 1884 Benjamin Miller notified Chief Bushyhead that intruders were in the Outlet below Hunnewell, Kansas. Other cattlemen reported the invasion, adding the information that their fences had been cut by homesteaders crossing their range. Some suggested that the Cherokees make the eviction of the settlers an opportunity to eject not only the farmers but also stock raisers who paid no association dues. Bushyhead sent Miller a bundle of no-trespassing notices for distribution among homesteaders and unwelcome stockmen. Miller’s response: “If, at the present time, I should serve notices upon each individual intruder on lands leased by our Association from the Cherokee Nation, I should have to serve more than a thousand and it would be rather arduous.” [Some reports to Bushyhead stated there were about 2,000 boomers in the Outlet.]
1884: Payne and his colony laid out a town, which they named Rock Falls, on the banks of the Chikaskia River in the Outlet south of Hunnewell and set up headquarters for the Oklahoma War Chief.
E. M. Hewins, a director of the Cherokee Strip Live Stock Association, wrote of “Cheeky fellows [who moved] a printing office on Cherokee lands to demean them and lye about [the Indians] in [almost Shameful Manner.]”
Through Agent Tufts the Cherokee officials notified Washington of the situation. On July 1, 1884, President Chester A. Arthur, in a proclamation similar to Hayes’, warned homesteaders away from Indian Territory, declaring that invaders would be “speedily and immediately removed ... by the proper offices of the Interior Department [with, if necessary,] the aid and assistance of the military forces of the United States.” Payne ignored the warning.
On July 22, 1884, Agent John Q. Tufts assigned Connell Rogers, a Union Agency clerk, to represent the Bureau of Indian Affairs in the matter. On July 23 Rogers appeared at Payne’s camp and presented an order to move. Payne refused: he produced a map indicating that the Cherokee Outlet had been ceded to the government on July 19, 1866, and was therefore public domain. Rogers withdrew and requested military assistance.
On August 6, 1884, Col. Edward Hatch, commander of the Military District of Oklahoma, Department of the Missouri; Lt. W. Leighton Finley, the district’s acting assistant adjutant-general; and A. R. Greene, an inspector from the General Land Office, rode into Rock Falls and formally notified Payne and his followers to leave the Outlet quickly and quietly or face arrest by federal troops. Payne again refused to move. Instead of complying, he threatened to arrest Colonel Hatch. The die was cast.
On August 7, 1884, at 10:00 a.m., Rogers, Inspector Greene, and John F. Lyons arrived at the boomer settlement with Companies L and M of the Ninth United States Cavalry, commanded by Capt. Francis Moore. The troops placed the home seekers under arrest and escorted them to the Kansas border, where they were released and warned not to return. Payne and several of his lieutenants were taken to Fort Smith, Arkansas, for trial in United States district court as “old offenders under the law.” The arrests completed, the soldiers confiscated the boomers’ printing press and burned Rock Falls to the ground.
John F. Lyons’ presence at Rock Falls underscored his importance in maintaining close liaison between the association and the Cherokee government.
November, 1884: David Payne died. Leadership fell to W. L. Couch. Paper was changed to The Oklahoma Chief, a change that belied the hardening attitude of boomers toward Outlet ranchers.
January, 1885: Couch, already branded a fanatic in Army reports, led a party of four hundred settlers across the Outlet and into the Oklahoma District, encamping near Stillwater. The boomers remained there until elements of the Ninth Cavalry cut supply lines and forced them to surrender.
March, 1885: President Cleveland signed legislation authorizing government negotiations for the purchase of the Oklahoma District and part of the Cherokee Outlet.
December 9, 1884: The Senate Committee on Indian Affairs began inquiries into the Association’s lease as outlined by Augustus Ivey in his letter to Secretary Teller, dated August 23, 1883. Hearings began and continued through the summer of 1885, when the committee traveled to Kansas and Indian Territory to interrogate witnesses who were unable to journey to Washington.
Of the ten Outlet cattlemen who appeared before the committee, eight had been members of the original board of directors of the Cherokee Strip Live Stock Association:
1. Benjamin S. Miller.
2. S. Tuttle.
3. Andrew Drumm.
4. James W. Hamilton.
5. Charles H. Eldred.
6. A. J. Day.
7. M. H. Bennett.
8. E. M. Hewins.
The testimony of Bennett and Hewins did not concern the Outlet lease but dealt, rather, with charges that their stock had drifted south into the Oklahoma District. The combined range subleased from the association by these men totaled nearly 1 million acres. The other two cattlemen were the association’s secretary and a rancher who held an interest in 400,000 acres of leased land.
All the cattlemen argued that the association had done nothing unlawful in securing the lease from the Cherokee Nation, and most of their testimony merely chronicled the origins and growth of their organization and described its administrative machinery.
W. L. Couch presented the homesteaders’ view of the lease. Meeting in Caldwell in June, 1885, the committee invited Couch to appear before it. Couch charged that ranchers whose range in the Outlet bordered on the Oklahoma District often wintered stock across the line on land denied the homesteaders. He claimed that the association’s lease was invalid because Cherokees could not lease what was not theirs. He contended that the Outlet was the property of the federal government, acquired from the Cherokee Nation by the 1866 treaty. Asked if he had read the treaty, Couch replied: “Yes...that and acts of Congress.” Asked to identify the acts to which he referred, Couch answered: “I don’t know that I can cite them particularly.” When Dawes questioned Couch closely about his charges of bribery, the boomers’ leader admitted that his evidence was secondhand. Statements made to him by members of the Association had led him to believe that the cattlemen had spent $36,000 to secure the lease and to obtain approval for it from the Department of the Interior.
John Q. Tufts of the Union Agency maintained before the committee that the Department of the Interior allowed the lease because it “recognized that these Indians have the right to transact their own business without our interference.” He told the senators that he saw no need for their investigation. He expressed his belief that the lease arrangement was fair to the Cherokees; he knew of nothing to indicate that the cattlemen had bribed the Indians.
The largest group to appear before the committee: 22 Cherokee witnesses; 12 opposing the association’s lease, and 10 who defended it. Association board directors attempted to discredit the testimony of several Cherokees who criticized the lease. John F. Lyons, the association attorney, pointed out misrepresentations by William F. Rasmus, a Tahlequah storekeeper, and Augustus Ivey, the man largely responsible for the hearings. Lyons through diligent investigation discovered that Ivey was guilty of forgery and pickpocketing in Vinita and Tahlequah. He characterized Ivey and the other critics of the lease as a “little crowd of snakes.”
The senators completed their investigation during the summer of 1885. Their published report appeared a year later, on June 4, 1886. Although charges of bribery were not substantiated, one author stated: “There is ample reason to believe that the Senate investigation committee did not arrive at the whole truth and that a large sum was really expended in bribing members of the Cherokee National Council to vote for this lease.” He cited no evidence to report his statement.
1886: Robert L. Owen succeeded John Tufts as United States Indian Agent at Muskogee’s Union Agency. In late November he received word that some members of the cattlemen’s association in Tahlequah were plying Indians with liquor to secure a favorable vote for their renewal plan. Owen arrived in Tahlequah on the evening of November 26, only hours after the defeat of the bill for extension of the lease. According to information he gathered, Lyons, Eldred, and Thomas Hutton had arrived in Tahlequah on November 1 and had rented the finest room in the National Hotel. The proprietress, Mrs. Eliza Alberty, who was Bushyhead’s sister, told Owen that she had seen “a 2-gallon demijohn, three 2-gallon jugs, and one 1-gallon jug, and forty quart-bottles” of whiskey in that room during the three weeks of the council’s session. She recalled observing a number of drunken Indians there at various times and commented that “the disgraceful tramping into this room all night long, and the bad odor it was bringing upon the house” had led her to tell the cattlemen “it would have to stop or they would have to leave her house.” Her story, Owen noted, was “corroborated by numbers of other people.”
In addition, Augustus Ivey informed Owen that representatives of the association paid him $500, ostensibly to settle an “old claim” against Outlet cattlemen. Shortly thereafter, they asked him to support the association’s renewal bill. Ivey said the money was paid “really to silence his opposition,” but in any case, he kept it.
Owens mailed affidavits to events on April 29, 1887, to Commissioner Atkins. Atkins sent the letter to Secretary of the Interior, L. Q. C. Lamar, noting that Lyons, Eldred, and Hutton had “made themselves liable to exclusion from the Indian Territory, and to a criminal prosecution in the United States courts” for violating federal statutes “relating to the liquor traffic with Indians.” Lamar referred the matter to United States Attorney General Augustus H. Garland for investigation. Garland referred it to the United States attorney for the Western District of Arkansas. Lamar then advised Atkins of the pending investigation and said Owen “should be instructed that if he is satisfied the statements as to violations of the law...are true and well founded” to eject Lyons, Eldred, and Hutton “from that portion of the Indian Territory within the jurisdiction of his agency.” There is nothing to indicate that Owen ever removed the men or that Garland ever completed the investigation.
December, 1887: Joel B. Mayes defeated Dennis Bushyhead in a tumultuous election for principal chief that came dangerously close to bringing bloodshed to the streets of Tahlequah. Bushyhead’s defeat was a blow to the association’s scheme to extend the lease.
January 25, 1888: Mayes presented his views on renewing the Outlet lease to the Cherokee National Council. He wanted to lease by competitive bidding for a period of five years.
[AFTER THAT THINGS BEGAN TO FALL APART! CHEROKEES WANTED MORE AND MORE MONEY! PITTED THE ASSOCIATION AGAINST OTHER ENTITIES.]
Two years of lobbying for an extension of the lease brought nothing to the cattlemen of the association. The agreement was due to expire on October 1, 1888, and in mid-September, realizing that a new lease might not be obtained until the next year, cattlemen began preparing to turn over to the Cherokee Nation fences, corrals, buildings, and other improvements. They declared the structures to be Cherokee property and resolved to surrender them on the demand of any authorized Cherokee agent. On September 28, 1888, only two days before the lease expired, Secretary of the Interior William F. Vilas announced in a letter to Mayes that the federal government would “recognize no lease or agreement for the possession, occupancy, or use of any of the lands of the Cherokee Outlet.”
EVENTS CONTINUED...ASSOCIATION CHANGED ITS NAME OCTOBER 31, 1888, TO “SOUTH WESTERN GRAZERS ASSOCIATION.”
November 1, 1888: Andrew Drumm, president of the new association, submitted to the Principal Chief a bid of $200,000 per year for a five-year lease on the Outlet and a total of $3,750,000 for a fifteen-year concession.
MORE CHEROKEE COUNCILS!
December 3, 1888: The council passed a bill leasing the Outlet to the Cherokee Strip Live Stock Association for five years at an annual rate of $200,000.
March 2, 1889: Congress passed an act, which contained a provision for the appointment of a commission to negotiate with the Cherokees for the sale of their land west of the 96th meridian. The government’s offer was to be $1.25 per acre, or, deducting a sum “chargeable against said lands by direction of certain acts of Congress,” $7,489,718.73 for 6,574,486.55 acres of land. The commission began its work, and the federal government proceeded with plans to open the Outlet to settlement.
October 26, 1889: Secretary of the Interior John W. Noble wrote to Lucius Fairchild, chairman of the Cherokee Commission, which was then meeting in Tahlequah, to announce that the government would soon issue an order requiring the association to remove all cattle from the Outlet by June 1, 1890.
MORE ACTION! MORE STALLING!
December 1, 1890: Final date for removal of cattle. Ranchers faced a difficult task. Some sold all the cattle they could, and others attempted to move entire herds to new pasture.
[LOSSES TO RANCHERS WERE HEAVY DUE TO DEPRESSED MARKET, ETC.
AFTER THIS TIME THERE WAS NOTHING BUT LAWSUITS!]
December 19, 1891. The Cherokee Nation relinquished its rights to the Outlet for the sum of $8,595,736.12.
In January, 1884, the federal government opened an Indian school on the banks of Chilocco Creek in the Outlet, six miles south of Arkansas City, Kansas. The precedent of settling friendly tribes in the Outlet established by the 1866 treaty provided the basis for the school, which was authorized by an Indian appropriation act passed by Congress on May 17, 1882. Approximately 1,200 acres of Outlet land were designated for the purpose, but when the buildings were completed, officials concluded that the acreage was inadequate to sustain the extensive agricultural program planned for the school. They therefore recommended enlarging the site. In a proclamation dated July 12, 1884, President Chester A. Arthur added 7,440 acres to the Chilocco lands, taking for government use about fifteen sections of pasture that had been subleased from the association by the firm of Roberts and Windsor.
Roberts and Windsor retained an attorney, W. P. Hackney of Winfield, Kansas, and together they besieged Bushyhead with requests for assistance. The naive Hackney sought to determine “upon what the President bases his authority” in order to challenge it. His employers, however, pursued a more practical course. Arguing that the location of the new school boundaries left them without access to water on one corner of their range, Roberts and Windsor suggested that Bushyhead exert his influence to have the lines redrawn. But the Principal Chief recognized that the situation was beyond his control. The association’s officers said nothing, and there matters rested for nearly one year. When problems next arose, school officials, not cattlemen, were the complainants.
March 26, 1885. On March 26, 1885, Henry J. Minthorn, superintendent of Chilocco, wrote to Commissioner of Indian Affairs Hiram Price to protest a series of intrusions on school lands by a group of unidentified cowboys. Minthorn, a Republican, had tendered his resignation from the school on March 4, perhaps anticipating a Democratic house-cleaning after the inauguration of President Grover Cleveland, but he had not been notified of its acceptance. The spoils were already being divided in Washington, and Minthorn’s letter reached J. D. C. Atkins, who had replaced Price as commissioner in the Indian Bureau.
Minthorn complained that two herds of cattle had been driven into plowed fields near the school, reducing the students’ chances of raising a crop and threatening the school’s cattle with contagious disease. He had sought assistance in removing the cattle at a nearby Army encampment, but was refused. Boomers had “some just reason to complain,” he said, when federal troops held them outside of an area open to ranching. “From what I have seen of cattle men,” Minthorn wrote the Commissioner, “I should say they are the last class of men that should be admitted to this Territory.”
Atkins sent Minthorn’s letter to Secretary of the Interior, L. Q. C. Lamar, remarking with the zeal of a new appointee that “justice and sound policy require that cattle herds shall be removed without delay from the vicinity of the tract set aside for the Chilocco school.”
Lamar notified Bushyhead of the situation and advised him to “take early measures to prevent intrusion . . . upon the school lands [so] there will be no further occasion for complaints of this character.”
On April 19, 1885, Bushyhead ordered John W. Jordan, special agent, Cherokee Nation to investigate the alleged intrusions. Jordan, a Cherokee farmer and stockman, had written to Bushyhead early in January to express concern over conditions in the Outlet. He urged Bushyhead to prevent the erosion of Cherokee claims to the land by reaffirming the tribe’s right of possession and jurisdiction over it. The boomer problem was uppermost in Jordan’s mind, as it was in Bushyhead’s when, on February 1, 1885, Bushyhead had appointed Jordan to act as the Nation’s special agent for the Outlet. Yet, Jordan’s first assignment apparently concerned cattlemen rather than home seekers.
Jordan rode to Arkansas City in May 1885 with the association’s secretary, John A. Blair. There they investigated the Chilocco intrusions and soon concluded that no members of the association were involved. Blair reported to Bushyhead: “The men that were there are from the states with small bunches of cattle.”
Jordan had little sympathy for either the school or the problems Minthorn had described and placed blame for the incident on the school’s officials. The outspoken Minthorn may have antagonized him during the investigation, but in any case, Jordan dismissed the episode and did not mention Chilocco in his annual report to Bushyhead.
The Cherokee Strip Live Stock Association tried to maintain a favorable corporate image in the eyes of the federal government. They were reluctant to argue the matter of the school’s location and the willingness with which its representatives assisted Cherokee officials in investigating Minthorn’s complaint indicated its determination to avoid conflict at a time when Congress was focusing attention on the question of white men’s leases of Indian land.
The Chilocco episode provided the Cherokees and the cattlemen with an opportunity to test the machinery they had devised for solving problems in the Outlet. If the cattlemen feared federal displeasure with the lease arrangement as a threat to their economic well being, the Cherokees viewed it as a real menace to their national sovereignty.