Being a relation of how Indian land was stolen twice, first the homelands and then the reservations.
Woody Guthrie was born in 1912 — -five years after Oklahoma statehood shredded the treaties with the Five Tribes, all of which promised their land in Indian Territory would never become part of a state without the consent of tribal government. Woody was born and raised in Okemah, not far from where I grew up in Bristow. By the time I came along, only the elders carried the stories of Indian Territory, but when Woody was a kid, the theft was still fresh.
I’ve wondered if that theft inspired in some part Woody’s ballad about a bank robber named Pretty Boy Floyd, in which he claimed that he’d seen lots of funny men,
Some’ll rob you with a six-gun; some with a fountain pen.
The Five Tribes were robbed with fountain pens. They were my folks, the Cherokee, along with the Choctaw, Chickasaw, Creek and Seminole. All had signed treaties that were presented as offers they could not refuse, but all of those treaties promised that the new lands in Indian Territory would be theirs as long as the grass would grow and the rivers would run or oil would be discovered, whichever came first.
Oklahoma Territory, the western part of what became the state of the same name, was made up of prisoner of war camps for the Plains Indians who fought for their land while my people litigated for theirs. One was about as effective as the other in terms of keeping the homelands, and the Cherokee and Choctaw probably lost as many souls on the Trail of Tears as most of the Plains tribes did in open warfare.
However that may be, there came to be a pattern to the taking of Indian land. First the homelands would be taken by a one-sided treaty or at gunpoint. Then, in 1887, came the Dawes Act.
The purpose of the law was to put an end to common landholding because, the white people claimed, we would never be civilized when the reservation belonged to everybody. The Dawes Act required individual Indians to accept an allotment — their very own piece of the land formerly held in common. Not incidentally, after every Indian got a farm, there was plenty of land left over, available to be homesteaded by white people.
There was, of course, resistance to allotment. In the Five Tribes, there was civil disobedience led by the Creek Chitto Harjo aka “Crazy Snake,” and the Cherokee Redbird Smith. One of the tribes that had lost a shooting war, the Kiowa, undertook to defend their lands with litigation.
So it was the Lone Wolf, Principal Chief of the Kiowa, did battle with Ethan A. Hitchcock, Secretary of the Interior, for the treaty rights and the future of the Kiowa Nation. Lone Wolf sought to interpose the Treaty of Medicine Lodge, which appeared to say that the reservation land could not be alienated without tribal consent.
Secretary Hitchcock gets a bum rap in the history books, because he had to be a party to the lawsuit but he did not in fact support allotment. Hitchcock was in agreement with Lone Wolf that loss of the common lands would destroy Kiowa culture and leave individual Kiowa destitute.
The U.S. Supreme Court upheld the theft of Kiowa land while recognizing that it violated the letter of the Medicine Lodge treaty. All it took to abrogate an Indian treaty, the Court opined, was a finding by Congress that its purpose was the “care and protection” of the Indians.
I can’t resist the ironic aside that if the effect of abrogating Medicine Lodge had been to return the parties to the status quo ante, the result would have been an expansion of the Kiowa land base rather than destruction of it. The Kiowa, in alliance with the Comanche, had controlled most of the southern plains until the end of the Civil War allowed the settlers to turn their guns away from each other and on the Indians.
Within a few years of allotment, most Indians had to go off to look for work, since the individual parcels were inadequate to support a family. The Indians became absentee landlords, with their land leased for grazing by the Bureau of Indian Affairs at substantially less than fair market value.
A worse problem was fractionation, as people not accustomed to wills or probate courts and without access to lawyers let the land pass to children and grandchildren through generations of intestacy. When Congress attempted to fix the problem by allowing the tribes to buy the tiny parcels remaining and stitch them together, the attempt was struck down by one of the legal shell games so typical of Indian law.
Lone Wolf, because he was Indian and Indian relations were barred by the doctrine of “political question”, could not claim that the violation of the Medicine Lodge treaty was a Fifth Amendment “taking.” By the time Congress was trying to remedy the fractionation problem it had caused, the political question doctrine had waned and the Fifth Amendment did apply to Indians and so the involuntary sale of the remaining land was a taking under the Fifth Amendment.
Before voting to maintain the screwing in 1987, the Supreme Court made very clear that it understood the fractionation problem:
Tract 1305 is 40 acres and produces $ 1,080 in income annually. It is valued at $ 8,000. It has 439 owners, one-third of whom receive less than $ .05 in annual rent and two-thirds of whom receive less than $ 1. The largest interest holder receives $ 82.85 annually. The common denominator used to compute fractional interests in the property is 3,394,923,840,000. The smallest heir received $ .01 every 177 years. If the tract were sold (assuming the 439 owners could agree) for its estimated value, he would be entitled to $ .000418. The administrative costs of handling this tract are estimated by the Bureau of Indian Affairs at $17,560 annually.
It was probably too complicated for Woody Guthrie to get in his song, but the difference between robbery by gun and robbery by fountain pen is that the latter requires that the robbers control the courts.
Previously published on medium
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Photo credit: Steve Russell