Disputes over land titles in the Cherokee Outlet and the tribe’s authority to grant rights-of-way through land owned by other tribes delayed approval of the Union Pacific contract. In addition, the agreement became an issue in the following year’s tribal elections. Charges that Ross and his political allies maintained a cozy relationship with the railroad caused the national council to void the contract shortly after Downing’s election. Despite this outcome, the Cherokees’ draft agreement with the Union Pacific was a clear indication of how eager tribal leaders were to control economic development in Indian Territory. And despite the decision to cancel the agreement, Ross’s political enemies shared his ambition.
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ONE OF ROSS’S CHIEF CRITICS was Elias Cornelius (E. C.) Boudinot, a prominent member of the Southern Party. Boudinot’s father had been a signer of the New Echota treaty that had triggered the tribe’s removal from Georgia, and he had been assassinated by Ross supporters soon after the tribe arrived in the West. Only four years old when his father was murdered, Boudinot had been raised in New England by his mother’s family but had returned to the Southeast on reaching adulthood. He took up residence in Arkansas, where he was admitted to the bar and later became active in state politics. During the Civil War Boudinot fought in a Confederate Cherokee regiment alongside his uncle Stand Watie, and he briefly represented the tribe in the Confederate Congress. When the war ended, Boudinot was part of the southern faction’s delegation to Washington, D.C., where he led the campaign to form a separate tribal government. After John Ross negotiated the 1866 treaty, however, E. C. relocated to the Cherokee Nation and became an active supporter of the new national party.
Boudinot was an ambitious entrepreneur who frequently placed his personal ambitions ahead of his loyalty to his tribe, but in the immediate postwar years he, like William Potter Ross, concentrated on devising ways for the tribal government to control the economic changes occurring around him. During the 1867 election season, when tribal members were debating Ross’s proposed contract with the Union Pacific Railroad, Boudinot proposed an alternative, the construction of the Central Indian Railroad, an enterprise to be financed and governed entirely by the Indian Territory’s major tribes. “My plan,” he declared, “is to allow the Indians to build their own road and own it.”39
The Central Indian Railroad never materialized, but Boudinot was rarely short of ideas. The following year he succeeded in persuading his prominent uncle to join him in founding the Watie and Boudinot Tobacco Company. The firm was organized to take advantage of a provision in the Cherokees’ 1866 treaty that allowed tribal members to market agricultural and manufactured products tax free inside Indian Territory and to distribute those products beyond their homelands “without restraint.” In 1867 the partners erected a processing plant a few feet inside the Cherokee Nation, near Maysville, Arkansas, and in January 1868 they began producing chewing tobacco that could be sold throughout the Indian nations. In addition, because their new plant stood adjacent to productive tobacco fields in southern Missouri and western Arkansas, Boudinot and Watie hoped to compete for customers in the surrounding states of Kansas, Missouri, and Arkansas. In those markets the only chewing tobacco available came from processing plants in Louisville and St. Louis.
Missouri tobacco processors quickly responded to Boudinot’s challenge by persuading Congress to revise the Internal Revenue Code so that taxes would be due on tobacco for all “articles produced anywhere within the exterior boundaries of the United States.” As the Cherokee plant moved toward full production (it employed more than one hundred people in 1869), Boudinot denounced the new regulations and attempted to secure official approval for a system under which he would pay the tobacco tax only on the amount of his product sold outside Indian Territory. The Cherokee businessman seemed to be making progress until March 1869, when General Grant and the Republicans regained control of the White House, bringing with them a new level of hostility to tribal governments, particularly those headed by aggressive (and prosouthern) leaders.
In December 1869 the Bureau of Internal Revenue took control of the company’s factory to prevent it from distributing tax-free tobacco to Indian clients and indicted E. C. Boudinot for violation of federal tax laws. Two Washington attorneys came to his defense: Robert Johnson and (in a remarkable show of resiliency) Albert Pike, the former Confederate general, who in 1861 had represented the southern government in its treaty negotiations with the Cherokees. When their client was found guilty of tax evasion in early 1870, Johnson and Pike appealed to the Supreme Court for a dismissal, claiming that the business privileges granted the Cherokees in the 1866 treaty should take precedence over U.S. revenue laws. If the tax laws were allowed to extend to Indian Territory, they argued, Indian treaties would be “as worthless as waste paper.”40
When the Supreme Court’s decision upholding Boudinout’s conviction was announced in the spring of 1871, it was not only a blow to the concept of tribal political independence that the Cherokees had defended so forcefully over the previous three decades but also a clear indication that despite the inventive ideas of entrepreneurs like Boudinot and William Potter Ross, the justices were prepared to reject any suggestion that Indians might become autonomous economic actors. In his majority opinion, the Republican appointee Noah Swayne returned to the language Justice Taney had employed twenty-five years earlier in U.S. v. Rogers. It is “firmly and clearly established,” Swayne declared, quoting the discredited former chief justice, “that the Indian tribes residing within the territorial limits of the United States are subject to their authority . . . where the country occupied by them is not within the limits of one of the states, Congress may by law punish any offense committed there.” This proposition was so well settled, he added, that “it would be a waste of time” to discuss it.41
The tribe’s defeat in the Cherokee Tobacco case greatly reduced its potential power while it underscored how strongly Ross, Boudinot, and other Cherokee leaders, despite the rivalries among them, had come to identify their community’s national identity with the legal guarantees contained in its treaties. No longer symbols of a diplomatic alliance, these documents were now viewed as domestic charters that had a direct impact on daily life. Tribal governments were empowered by the privileges recognized in their treaties and constrained by areas where those powers were not spelled out. Whether granted by federal officials who were inclined to use generous language in an agreement, as the framers of the removal agreements had been, or dictated to the tribes in an atmosphere in which the tribes were defeated and weak (as had been the case in 1866), treaties spelled out the legal rights of Indian people.
INDIAN NATIONS UNDER ATTACK
William Potter Ross remained a prominent political figure in the Cherokee tribe despite his defeat by Lewis Downing in the 1867 election for principal chief. He was the most experienced diplomat in the nation, and as assaults on their independence multiplied, the tribal leadership relied increasingly on his knowledge of the American government. During the 1870s Ross served on the national council and in the Cherokee senate, represented the tribe regularly in Washington, D.C., and testified repeatedly before congressional committees. When Chief Downing died in 1872, Ross was called on for a second time to complete the term of a fallen leader. He remained an outspoken and active defender of American Indian nationalism until his death in 1891.
It is remarkable that Ross and his colleagues managed to hold off the settler onslaught for as long as they did. Federal officials began pressing for the extension of their authority over Indian Territory almost as soon as the fighting ended at Appomattox, yet no white settlers were allowed to purchase land within the reserve’s borders until 1889, when the Oklahoma Territory was organized in a portion of the Cherokee Outlet. Even then Cherokee officials (and their counterparts among the Creeks, Choctaws, Chickasaws, and Seminoles) managed to hold their enemies at bay through legal challenges and tireless campaigns of lobbying and pub
lic protest. As a consequence, Congress did not formally strip the Indian Territory’s tribal governments of their powers until 1898.
The efforts of leaders like Ross during the last decades of the nineteenth century created a common platform for tribal governments struggling to maintain their independence. Their speeches and declarations as well as their regular appearances in Washington, D.C., gave the cause of tribal autonomy attention enough to win the notice of sympathetic whites and tribes from other parts of the United States. As American settlers pressed against tribal territories across the West, other leaders called on the United States to stand by its treaties and protect the integrity of Indian communities, whether they were in New Mexico, Montana, or South Dakota. They too struggled to reconcile their nations’ futures with the future of the American state. They echoed the Cherokees’ arguments and refused to be ignored.
High officials in the Indian Office had first called for the dissolution of Indian Territory during the 1866 treaty negotiations with the Cherokees, Choctaws, Creeks, and Seminoles, but a combination of tribal resistance and the press of other issues arising from the war had blunted that effort. The Cherokees were imaginative negotiators, but their inventive proposal to form an alliance with the Union Pacific provoked a backlash from rival lines. Their lobbyists proposed a congressional resolution, quickly passed in the summer of 1866, that committed the United States to making generous land grants along any future rights-of-way across Native lands “as soon as the Indian titles are abolished.” In the wake of this new legislation (and the tribe’s later abandonment of its contract with the Union Pacific) railroad executives and their lobbyists nimbly switched from being potential business partners of the tribe to taking up the goal of federal “territorialization.”
When Congress first held out the promise of Indian Territory land grants to the railroads, it had also provided that the single north-south right-of-way called for in the 1866 Cherokee treaty would be awarded to the first branch line that could build its tracks across Kansas to the tribes’ northern border. In March 1870 the Missouri, Kansas and Texas Railroad (a successor corporation to the Union Pacific, Southern Branch, and popularly known as the Katy line) accomplished this goal; it struck the Indian Territory border fifty miles ahead of its nearest rival. Drunken celebrations erupted in nearby Baxter Springs, Kansas, but the reaction in Tahlequah was far different. Understanding that a confrontation over the ownership of the Cherokee Outlet and other unoccupied areas within Indian Territory was about to escalate, Ross and colleagues from neighboring tribes gathered at Okmulgee, Creek Nation, and issued a collective declaration “in view of the perils which surround [our] people.” Because Ross chaired the gathering, the resolution drafted at Okmulgee incorporated several themes he had developed earlier in his political career.
Ross and his colleagues insisted that they had no goals but peaceful coexistence and the “simple and honest administration” of the government’s policies. At the heart of those policies, the Okmulgee delegates argued, was the “just and fair observance of existing treaty stipulations.” They urged federal officials to focus on these “stipulations” rather than accept the railroads’ argument that restrictions on white settlement would limit the growth of civilization or the progress of the American nation. “We have been charged with opposition to progress and improvement,” their declaration noted. “We are not opposed to progress; we are not opposed to improvements; we are not opposed to civilization; we are not opposed to the Christian religion.” They insisted instead that their national histories ran parallel to the progressive trajectory of the United States. Their progress was steady, they assured the Indian Office, and could be disrupted only by intruders and “the cupidity of soulless corporations.” The government owed them “protection and security,” they argued. “You have promised them.”42
It would be three years before the Katy line crossed Indian Territory to Texas, but its entrance into the tribes’ domain triggered a flood of petitions from corporate lobbyists, regional politicians, and local boosters, urging action to extinguish tribal land titles along the railroad’s right-of-way. Bills to dissolve unilaterally tribal governments and make Indian Territory part of the public domain quickly became a routine feature of the Washington landscape. The scene was darkly reminiscent of the clamor in Georgia and Mississippi fifty years earlier. The dispossession that federal officials in the age of Jackson had once promised the tribes would never come suddenly seemed imminent.
As he had done a few years earlier at Okmulgee, Ross responded to these new attacks by insisting that threats to federal authority in Indian Territory were also threats to the American nation’s institutions and values. The fullest presentation of his views emerged at the end of 1870 from a meeting called initially by Ely Parker, President Grant’s new commissioner of Indian affairs. Parker, a Seneca Indian who had been present when John Ross confronted Dennis Cooley in 1865, invited tribal delegates to gather once again at Okmulgee to frame a constitution for an all-Indian government for Indian Territory. When the delegates assembled, they selected William Potter Ross to chair the subcommittee charged with this task.43
Ross’s committee proposed a government “for the country occupied and owned” by the territory’s resident tribes. It declared that its purpose would be “the protection of their rights, the improvement of themselves, and the preservation of their race.” Its draft charter recognized the authority of the separate treaties that defined the boundaries of each tribal homeland and reaffirmed the federal obligation to provide the subsidies promised each group in previous agreements, but it also created a two-house territorial legislature and provided for a governor elected at large. The governor would appoint judges whose courts would hear disputes appealed from individual tribal tribunals. The constitution also included a Declaration of Rights, which pledged to protect freedom of religion and free speech as well as to defend territorial citizens against arbitrary or cruel actions by their tribal governments. Ross proposed that the new territorial government initially extend its jurisdiction over only the large, relocated tribes represented at the Okmulgee Council, but he added that western tribes not present at the gathering—most prominently the Kiowas, Comanches, and Cheyennes—could join later to “secure our lands exclusively to ourselves and to transmit them to our children.”44
The Okmulgee constitution was a remarkable attempt to bridge the legal and cultural differences between residents of Indian Territory tribes and the government of the United States. But its rapid demise suggests how vast the chasm separating these two entities had become. At the end of 1870 even the most sympathetic whites rejected the document’s commitment to Indian autonomy.45 Commissioner Parker was equally unenthusiastic. He altered the document to ensure the president’s power to appoint the territory’s governor and veto any of the legislature’s statutes, and he redefined the territory’s courts as federal, not tribal, institutions. Despite the appointment of a Native American Indian commissioner, the Grant administration was pursuing policies indistinguishable from those of local white settlers and the railroads.46
Congress subsidized four more Okmulgee conventions, but with no hope of winning congressional approval for their unique proposals, the gatherings deteriorated into annual occasions for venting frustration and denouncing visiting dignitaries. In June 1871, for example, Ross used the gathering to issue a rebuke to General William Tecumseh Sherman after the Civil War hero had repeated the familiar claim that Indian Territory was lawless and filled with discontented tribesmen. Ross demanded the floor to explain that “what dissatisfaction existed” in the tribal homelands lived “in the minds of the whites.” The Cherokee leader observed that it was “no more than justice that [Indians] should be allowed to elect their own way of enjoying the country that belonged to them by solemn treaties.”47 The Okmulgee gatherings were also an opportunity for leaders from eastern tribes to repeat their overtures to Kiowas, Comanches, and other western groups and urge th
em to join their coalition. While these invitations produced occasional meetings and tentative agreements, it was increasingly evident that federal officials had no interest in promoting pan-Indian solidarity.48
With the demise of the Okmulgee conventions, William Potter Ross turned to making his antiterritorial arguments to a national audience. Despite the fact that Ross did not belong to the ruling party within the Cherokee Nation, Chief Downing and his council often asked him to present their case to congressional committees considering legislation to allow white settlement in the territory. In 1872 he lectured the House Committee on Territories on the history of treaty making.49 He reminded the legislators that this history had begun with the administration of George Washington and that to abandon the promises made by statesmen like him would betray a legacy of good faith and mutual respect. To abandon the tribes now, he added, “would be the wantonness of Hercules strangling an infant.”50
On another occasion Ross relied on the principle of judicial precedent. He pointed out that John Marshall had written in 1810 that a state legislature could not cancel a land sale because a state could not “pronounce its own deed invalid” without violating the U.S. Constitution’s prohibition against the sanctity of contracts. He argued the United States was now in a similar position with regard to Indian Territory. He noted that the Cherokees and their neighbors held their lands by treaty, but he added that removal treaties, because they did not apply to traditional homelands, were doubly binding on the United States. Because the Cherokees received their territory from the United States as a condition of their migration from the East, their removal agreements were, in effect, contracts comparable to the ones in dispute in Georgia in 1810. The Cherokees’ title, he insisted, thus possessed “a sanctity which even Congress itself ought not to violate.”51
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