Oklahoma Organic Act

Routes of southern removals to the first Indian Territory of the Five Civilized Tribes.

"Indian removal" was a nineteenth-century policy of the US Government to relocate aboriginal natives living east of the Mississippi River to lands west of the river.

The Indian Removal Act, a specific implementation of the Removal Policy, was signed by President Andrew Jackson on May 28, 1830. The Act transformed most of the current state of Oklahoma into an Indian Territory, where southern aboriginal natives (Cherokee, Chickasaw, Choctaw, Creek and Seminole, also called the Five Civilized Tribes) were relocated. The Trail of Tears is a name given to the forced relocation of the Choctaw Nation in 1831.

In 1834, Congress created the first Indian Territory,[1] with the Five Civilized Tribes occupying the land that became the State of Oklahoma, excluding its panhandle.

See: Indian Territory in the American Civil War

Several members of the Five Civilized Tribes owned slaves and had sympathies with the Confederacy. All of the Five Civilized Tribes signed treaties placing themselves "under the protection of the Confederate States of America"[2]

During the Civil War, Congress passed a statute concerning the Abrogation of treaties with Indian Tribes, (codified at 25 USC Sec. 72) which states:

Whenever the tribal organization of any Indian tribe is in actual hostility to the United States, the President is authorized, by proclamation, to declare all treaties with such tribe abrogated by such tribe if in his opinion the same can be done consistently with good faith and legal and national obligations.[3]

As part of the Reconstruction effort following the Civil War, a "Southern Treaty Commission" was formed to meet with Indian tribes to negotiate new treaties.[4] A result of these "Reconstruction Treaties" with various tribes was that the land allocated to the Five Civilized tribes was reduced to the eastern part of the territory, making room for relocation of other Indian tribes. Later, other aboriginal people, such as the Apache, Comanche, Delaware, Kiowa, Cheyenne and Arapaho Tribes and the Osage Nation were also forced to relocate to the Territories (there are currently 38 federally recognized tribes in Oklahoma).[5]

The Southern Treaty Commission formulated the 1866 Treaty of Washington with the Choctaw and Chickasaw Nations[6] which contained the following provisions:

• Abolished slavery[7]
• agreed to legislation that Congress and the President "may deem necessary for the better administration of justice and the protection of the rights of person and property within the Indian territory.".[8]
• Choctaw and Chickasaw tribes received $300,000, selling tribal lands west of 98 west longitude to the United States[9]
• General amnesty for siding with Confederate States of America[10]
• Tribes grant right of way for rail roads authorized by Congress; A Land patent, or "first-title deed" to alternate sections of land adjacent to rail roads would be granted to the rail road upon completion of each 20 mile section of track and water stations[11]
• Agree to participate in the Indian Territory Legislature, with proportional representation from all tribes over 500 members[12]
  • Laws take effect unless suspended by Secretary of the Interior or President of the United States
  • No laws shall be inconsistent with the US Constitution, or laws of Congress, or treaties of the US
  • No legislation regarding "matters pertaining to the legislative, judicial, or other organization, laws, or customs of the several tribes or nations, except as herein provided for"
  • Superintendent of Indian Affairs (or appointee) is the presiding officer
  • Secretary of Interior appoints secretary
  • "The Choctaws and Chickasaws also agree that a court or courts may be established in said Territory with such jurisdiction and organization as Congress may prescribe: Provided, That the same shall not interfere with the local judiciary of either of said nations."
• Within each county, a quarter section of land shall be held in trust for the establishment of seats of justice therein, and also as many quarter-sections as the said legislative councils may deem proper for the permanent endowment of schools[13]
• Provides for each man, woman, and child to receive 160 acres of land as an allotment.[14]
• A Land patent, or "first-title deed" shall be issued as evidence of allotment, "issued by the President of the United States, and countersigned by the chief executive officer of the nation in which the land lies"[15]
• All treaties and parts of treaties inconsistent herewith be, and the same are hereby, declared null and void.[16]

Under the Cherokee Reconstruction Treaty of 1866, the Osage Nation began the process of purchasing approximately 1,570,059 acres in the Cherokee Outlet from the Cherokee Nation. The Osage Reservation was part of Oklahoma Territory under the Oklahoma Organic Act of 1890 and was made a semiautonomous district by the Enabling Act of 1906. With the passage of the Osage Allotment Act of June 28, 1906 (34 Stat. 539 c. 3572), each member of the tribe received an average allotment of 659.51 acres, with no surplus land remaining and the tribe retained ownership of mineral under the land (held in trust by the US Government).[17]

The United States House Committee on Territories was initially formed in 1825. Shortly after the Civil War, the Committee began discussing how best to assimilate the Five Civilized Tribes and how to combine Indian Territory and Oklahoma Territory. It was decided that one component of assimilation would be the distribution of property held in-common by the tribe to individual members of the tribe.[18]

A second component of this decision was that in 1871, Congress decided that the United States would no longer deal with Indian tribes through a formal treaty-making process, providing that "[n]o Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation ...".[19][20][21]

From the 1870s through the early 1900s, the Committee on Territories heard arguments from the Five Civilized Tribes that the lands within their territory should not be included within the State of Oklahoma and that a separate State of Sequoyah should be created for the Tribes.

The Cherokee Commission, created by Section 14 of the Indian Appropriations Act of March 2, 1889, was empowered to acquire land in the Cherokee Outlet not occupied by tribes, and to acquire excess land of other tribes in the Oklahoma Territory for non-indigenous homesteading. Eleven agreements involving nineteen tribes were signed over the period of May 1890 through November 1892. Investigations for Commission irregularities continued through the end of the 20th Century.

The 1889 Act also opened the Unassigned Lands to homesteaders, which included the Land Run of 1889 that settled Oklahoma City, Oklahoma.

In the 1890s both Oklahoma and Indian Territories contained Indian Reservations.

Indian Territory was primarily a consolidation of the Five Civilized Tribes plus an assortment of tribes in the northeast part of the territory, land administered by the Quapaw Indian Agency.

Oklahoma Territory was essentially an amalgamation of what was left over; land unassigned to other territories and states.

Oklahoma and Indian Territory, 1890s

Major components of what would become the State of Oklahoma include:

• Indian Territory
  • Cherokee Nation
  • Chickasaw Nation
  • Choctaw Nation
  • Muscogee (Creek) Nation
  • Seminole Nation
  • Land administered by the Quapaw Indian Agency
• Oklahoma Territory
  • Cherokee Outlet
  • Osage Nation
  • "Leased lands" of the Chickasaw and Choctaw Nations, west of the ninety-eighth degree of west longitude
  • Ceded lands of the Seminole and Muscogee (Creek) Nations
  • Unassigned Lands
  • Cimarron Territory - the Oklahoma Panhandle
• Disputed land, Greer County, Texas

The Oklahoma Organic Act specifically extended civil and criminal Arkansas laws over the Indian Territory.[24] Historically, non-Indians were not allowed in Indian Territory and the Federal Court in Ft. Smith, Arkansas had jurisdiction over Indian Territory. Arkansas recognizes the doctrine of Riparian water rights,[25] based on English common law, and generally accepted in the eastern part of the United States.

For the Oklahoma Territory, the laws of Nebraska were to prevail.[26] Water rights in Oklahoma Territory and the western United States, water rights were generally allocated under the principle of prior appropriation.

Today Oklahoma has a unique set of water rights statues based on groundwater and streamwater. The owner of land owns the groundwater underlying such land and surface water standing on the land, however the Oklahoma Water Resources Board regulates non-domestic use. Stream water is considered to be publicly owned and subject to appropriation by the Oklahoma Water Resources Board.[27]

The organic act created several Federal District Courts, both in the Indian Territory and Oklahoma Territory. The act also preserved Indian court civil authority by stipulating that "and any person residing in the Territory of Oklahoma, in whom there is Indian blood, shall have the right to invoke the aid of courts therein for the protection of his person or property, as though he were a citizen of the United States: Provided, That nothing in this act contained shall be so construed as to give jurisdiction to the courts established in said Territory in controversies arising between Indians of the same tribe, while sustaining their tribal relations"[28]

The Oklahoma Organic Act provided for a mechanism for Indian tribes to allocate their communally held land to individual tribal members, and to distribute unallocated property to non-Indians. A Land patent, or "first-title deed" would be granted to both tribal members, who received allotments, and to homesteaders who, after a period of time, claimed and improved (or in some cases purchased for $1.25 per acre) the homestead lands via a Land run.

Two sections in each Oklahoma Territory township were to be reserved, in the form of a Land grant, as public school lands, with money from land leases to be used to pay for public education. Later, the Oklahoma Constitution established the Oklahoma Commissioners of the Land Office to manage this resource.

Section-line roads to provide access to land parcels, were to be maintained on each side of every one-mile-square section throughout the territory. This requirement does not apply to the former Osage Reservation, now Osage County, Oklahoma.

Members of an Indian Tribe, who were not already citizens, could apply to become citizens of the United States.

In an effort to entice Indians of Indian Territory to accept their land allotments, it was provided that upon acceptance of an allotment, the Indians were declared to be Citizens of the United States. "Provided, that the Indians who become Citizens of the United States under the provisions of this act do not forfeit or lose any rights or privileges they enjoy or are entitled to as members of the tribe or nation who which they belong."[29]

Existing railroad easements were to remain in effect. Railroads were also given the right to "cross, intersect, join or unite it railroad with any other railroad now constructed or that may hereafter be constructed at any point upon its routes"[30]

"Congress may at any time hereafter change the boundaries of said Territory, or attach any portion of the same to any other State or Territory of the United States without the consent of the inhabitants of the Territory hereby created: Provided, That nothing in this act shall be construed to impair any right now pertaining to any Indians or Indian tribe in said Territory under the laws, agreements, and treaties of the United States, or to impair the rights of person or property pertaining to said Indians, or to affect the authority of the Government of the United States to make any regulation or to make any law respecting said Indians, their lands, property, or other rights which it would have been competent to make or enact if this act had not been passed"[31]