The Creeks were overwhelmingly opposed to allotment or any change in the treaty of 1832, which had forced them to move to Indian Territory. One full-blood expressed a common sentiment when he told a Senate investigating committee that “I love my treaty, and I want my old treaty back.”(21) He went on to say that “I will never stop asking for this treaty, the old treaty that our fathers made with the Government which gave us this land forever … as long as the grass grows, water runs, and the sun rises.”(22)
At a meeting held in Okmulgee on April 3, 1894, the commissioners explained at great length to a crowd of nearly three thousand (mostly full-bloods) all of the benefits allotment would bring, but the entire group “voted” against the plan.(23)
Shortly after the Dawes Commission arrived in Indian Territory, the Creeks took a census under an act of the National Council of November 6, 1893.(24) In March 1895 the district judges of the Creek courts were instructed to “tell all your light horse men to tell all council members” to take a census of their towns for a per capita payment. The census was taken between May 31 and June 6, 1895, and was reviewed by an eighteen-member special committee established by an act of May 15, 1895.
The “committee of eighteen” was headed by Moses Smith and was instructed to submit lists of contested names to the National Council.(25) The committee apparently decided it had the power to remove names and did so literally with a “knife or scissors.”
One member testified that the process became “kind of a trade” where one town representative would “scratch” the name of a person from some other town to get “revenge” if someone from his town had been “scratched off.”(26) By the time they were finished, about two hundred people had been “struck off the roll.” The per capita payment of $14.40,was made in October 1895.(27)
The power to determine citizenship was given to a citizenship commission by an act of the National Council of May 30, 1895. It was generally known as the “Colbert Commission” because James Colbert, an ordained minister of the Baptist Church, served as president or chairman. It was authorized to summon witnesses, take testimony, and make final decisions.(28) Sue M. Rogers served as principal clerk.
For two years the Dawes Commission tried in vain to get any of the tribal governments to even begin to negotiate themselves out of existence. The election of Isparhecher, an illiterate full-blood who spoke only Creek, as principal chief in 1895 sent yet another clear signal to the Dawes Commission that the Creeks wanted no part of allotment.(29) All of the candidates in the election came out strongly against the Dawes Commission.
In 1896 a discouraged Henry Dawes told a congressional committee that after three years of effort, virtually nothing had been accomplished. Congress, which was under increasing pressure from supporters of statehood and business groups pushing for economic development, decided to proceed without the tribes’ agreement.
Senator Orville Platt introduced an amendment to the Indian Office appropriation bill that authorized the commission to “hear and determine the application of all persons who may apply to them for citizenship” and “determine the right of such applicant to be admitted and enrolled.”30 The resulting act was signed on June 10, 1896, and marked the beginning of the end of tribal autonomy.
In a strange twist of logic, Congress stipulated that “the rolls of citizenship of the several tribes, as now existing, are hereby confirmed,” even though it had heard numerous charges that the rolls were wildly inaccurate and the product of widespread corruption. Many names were supposedly on the rolls as a result of fraud or bribes to tribal officials who allegedly added or removed people to influence the outcome of elections. Despite all the criticism, the Dawes Commission was only authorized to add names to the “existing rolls” and had to produce a “complete roll within six months that could be used as the basis for allotment.”(31)
The Dawes Commission issued written notices on July 8, 1896, that it would accept applications for citizenship until September 10, 1896, and would visit Wetumka, Okmulgee, Wellington, and Muskogee to receive them.
An application had to include a signed and sworn statement containing all the facts supporting the claim, and the applicant had to prove that a copy had been furnished to the tribal chief, who then had thirty days to respond. Congress totally underestimated the amount of work required and gave the commission only ninety days to make decisions. The deadline proved to be impossibly short.
Any of the parties could appeal the commission’s decision to the recently established U.S. Court of the Northern District at Muskogee.
On the same day the enrollment notices went out, the Dawes Commission wrote to Chief Isparhecher, requesting copies of all tribal rolls and any laws relating to citizenship, since those documents would constitute the basis for determining an applicant’s right to enrollment. Isparhecher ignored the request even though A. P. McKellop, clerk of the Creek Supreme Court, issued an opinion on August 16, 1896, that the chief had the power to supply them.(32)
The Creek tribal government responded to this first direct attack on its authority to determine its own membership by appointing a five-member special Creek commission under Pleasant Porter to “meet and treat with the Dawes Commission.” James H. Lynch, Rolin Brown, George Tiger, and Conchartee Mico were appointed to serve with Porter. The tribe also hired “Colonel” Ben T. Duval, a prominent attorney in Fort Smith, Arkansas, to represent it before both the Dawes Commission and the U.S. court.
Response to the threat posed by the Dawes Commission’s new powers was mixed. Pleasant Porter felt that the battle was lost and advised negotiating, but Isparhecher and the full-bloods wanted to resist and insist that the government honor the “old treaties.” An intertribal council met at Eufaula in July 1896 and recommended negotiations, but a special session of the Creek National Council voted in August to refuse any proposals from the Dawes Commission.(33)
On October 16, 1896, the Dawes Commission wrote to Isparhecher, reminding him that the law required him to respond to enrollment applications within thirty days and that the time was up. The commission had not received responses to either applications or the request for rolls. The commission warned that if it did not receive answers by October 21, it would “proceed to consider cases” without the tribe’s input.
Isparhecher immediately forwarded the letter to the National Council with the warning that “the Dawes Commission will not wait on us any longer.” He noted that Ben Duval had prepared the required answers to applications, but they could not be forwarded to the Dawes Commission until the National Council appropriated money to pay the attorney for his work.
The principal chief warned the legislators that more than thirteen hundred people were claiming citizenship, and those cases would be decided by December 10 (the expiration of the ninety days allowed by Congress) with or without the tribe’s participation. Isparhecher urged the council to “dispose of this question today.”(34)
The National Council gave in and appropriated nine hundred dollars to pay Duval, who then signed an agreement with the tribe on November 10, 1896, to continue representing the tribe. The tribe, however, still did not make copies of its citizenship rolls available.
A meeting of representatives of all of the Five Civilized Tribes, held at South McAlester in the Choctaw Nation in November 1896, issued a resolution opposing negotiations with the Dawes Commission.
In December, the special Creek commission under Porter offered a draft agreement, but the Dawes Commission rejected it. Congress continued its assault on tribal authority with an amendment to the Indian Office appropriation bill that put the Five Civilized Tribes under the jurisdiction of the federal courts and required that all tribal legislation passed after January 1, 1898, had to be approved by the President of the United States before it could take effect.
Thus Congress effectively abolished the power of both the tribal courts and legislatures and made resistance to allotment virtually impossible. The National Council responded in August 1897 with an informal vote that was almost unanimously against further negotiations. However, in a formal vote taken at a special session on August 24, the council reversed its position. The principal chief vetoed the bill, but the council passed it over his veto.(35)
Even as the Dawes Commission was hard at work using its authority to add names to the tribal rolls under the act of 1896, James Colbert’s Creek citizenship commission continued to hear applications. Before it was abolished on September 30, 1896, the commission admitted 79 blacks and 156 by-bloods and rejected 202 blacks and 99 by-bloods.
Colbert also served as head of a special committee of the National Council that approved a new census roll on November 4-5,1896.(36) It appears that this roll was taken in hopes of refuting the roll being prepared by the federal government.
The Dawes Commission met at Vinita on November 24-25, 1896, for a “trial of the cases” for the Creek 1896 applications. The Dawes Commission docketed 168 cases and decided to admit 255 applicants. S. B. Callahan, Bunny McIntosh, and Ben Duval represented the Creeks and vigorously objected to all the claimants and promptly filed appeals against all of the persons admitted with the U.S. Court for the Northern District of Indian Territory sitting at Muskogee.
The court, under Judge William A. Springer, began hearing the appeals in January 1897. Springer had served for twenty years in the U.S. House of Representatives as a Democrat from Illinois and was placed on the bench after being defeated for reelection in 1894. He appointed two masters in chancery to investigate the cases, and they eventually affirmed all of the decisions of the Dawes Commission that admitted applicants and reversed the rejections of seventy persons.(37)
The court heard numerous charges of corruption in citizenship matters. In order to discredit applicants, Duval often attacked the honesty of tribal officials, including the “impeached and disgraced ex-Chief Legus C. Perryman.”
He presented numerous charges that members of the Colbert Commission had been offered bribes by applicants. He introduced an affidavit by Colbert stating that “Gabriel Jamison who is King of a colored town … was in the habit of enrolling any person upon his roll who would pay him for it … he was looked upon as a swindler.”(38)
The court also heard testimony about the terrible physical condition of tribal records. Coweta District Judge Napoleon B. Childers admitted that when he took custody of the official record book, “about one-third of the book is torn out.”(39)
Duval concluded one argument with a request for dismissal because “this case was conceived in sin and brought forth in iniquity.” The ever-helpful Duval then offered to loan Judge Springer his personal copy of Perryman’s Digests of the Creek Laws of 1890 so that he could decide the issue.
The June 7, 1897, appropriation act that gutted the tribal courts and legislatures tried unsuccessfully to clarify what was meant by “tribal rolls.” The act defined them as the “last authenticated rolls” approved by the council of each nation (the Creek National Council had still not authenticated any roll) plus the names of any descendants plus any names added by the tribal council (228 for the Creeks), the U.S. court (70), or the Dawes Commission (255). Any other names that might be found on rolls that were not “authenticated” were “open to investigation” by the Dawes Commission for a period of six months.
If the commission decided that a name was on the roll as a result of fraud, it had the authority to strike the name after giving the person ten days advance notice. Anyone stricken from the rolls had the right of appeal to the U.S. court in Indian Territory. Unfortunately, at that point the Dawes Commission did not have any Creek rolls to examine.
On June 20, 1897, the Dawes Commission sent a request to each tribe for a copy of its “last authenticated roll” and copies of any laws relating to citizenship. Tams Bixby, who was acting chairman during Senator Dawes’s temporary absence, wrote to Isparhecher on September 30, 1897, that the commission would begin taking a census on October 11 and complete it by October 27.
Bixby once again requested copies of the “complete rolls of citizenship” because the commission planned to send one field party to Coweta and Muskogee Districts and a second party to Eufaula, Wewoka, Deep Fork, and Okmulgee Districts.40 It had been more than a year since the commission’s first request for the tribal rolls, and it still had not received them.
As usual, Isparhecher forwarded Bixby’s letter to the National Council and noted that the Colbert census roll had been prepared and submitted to the last session. He suggested that it be corrected and then authenticated by the legislature as “final.” The chief noted that he could not see “any necessity for aiding the Dawes Commission to take a new census at this time.”41 On October 11 he informed the council that two members of the Dawes Commission were in Okmulgee to “take a final census roll” and stated that “I do not feel authorized to submit your rolls to the Commission until you direct me to do so. Asking your immediate action.”42 As usual, the council ignored the chief’s plea.
On October 12, 1897, Commissioner A. S. McKennon, who was supervising the field parties, wrote directly to G. A. Alexander, president of the House of Kings, and William A. Sapulpa, speaker of the House of Warriors, reminding them that copies of the rolls had been requested twice, but “no response has ever been received,” and repeated the request for the rolls.43 Three days later, the chairman of the Committee on Foreign Relations of the Creek National Council issued a report that it was “not necessary that we should take any steps relative to taking the census.”44 So the Council continued to ignore the Dawes Commission.
While the Creeks stalled on access to the rolls, they did continue to try to negotiate an agreement on allotment. However, National Council promptly rejected a draft that the Creek Special Commission presented on September 27, 1897, calling it “the worst agreement negotiated with any of the tribes.”(45)
There was widespread speculation throughout Indian Territory about what legislation Congress would pass if the tribes continued to resist allotment. Tams Bixby, who was in Washington in February 1898 for consultations, told local newspapers that “matters among the Indian tribes were in chaos” and that the Dawes Commission was “no nearer a settlement with the various tribes than when it began work.”(46)
After lengthy debate, Congress ran out of patience with the Five Civilized Tribes and passed “An Act for the Protection of the People of Indian Territory,” which became commonly known as the Curtis Act after its sponsor, Senator Charles Curtis.47 It was signed on June 28,1898, and authorized the Dawes Commission to proceed with allotment even without tribal consent and to “adopt any other means by them deemed necessary” to carry out the allotment policy.48 The Curtis Act also included an amended version of the Creek agreement, but that was rejected by the tribe on November 1, 1898.
On the day the Curtis Act was signed, the secretary of the Dawes Commission, Allison L. Aylesworth, wrote to Isparhecher asking for the names of all the members of the National Council and reminding him that the 1896-1897 acts of Congress gave the commission access to all “rolls and records.” Aylesworth warned that “the Commission intends to take every step necessary to effectually discharge the duty which has been assigned to it” and that the U.S. court would find the Creeks in contempt if they did not start cooperating.(49)
Isparhecher wrote to all the judges of the tribal district courts on July 7, 1898, to inform them that the Dawes Commission had sent out notices that it was taking a census under the act of June 7, 1897, “in spite of our wishes and against our will and giving threats of enforcement.”50 The chief called for a convention of council members to meet at Okmulgee on July 18, 1898, to consider the matter. The convention resulted in a resolution of July 20 authorizing the principal chief to furnish the Dawes Commission with any “rolls and records as may be in his office.”