October 20, 2005

The Dawes Commission adopted a very narrow view of their powers


On August 4, 1898, Aylesworth gave Isparhecher a signed receipt for twenty-five 1896 town census rolls. It had taken more than two years of requests and then threats of court action to get just one of the “official rolls.” The ninety days that the Dawes Commission had to decide applications under the 1896 act had, of course, long since elapsed.

Commissioner Bixby was not satisfied with just the 1896 roll and wrote Isparhecher on August 9, reminding him that for more than two years he “earnestly yet courteously solicited your aid in the work of making a correct roll of Creek citizenship, which you have steadfastly ignored and refused to extend. Having wearied in our efforts to obtain the rolls, an application was made to the United States Court for the remedy which the law affords.”(51)

Realizing that the Dawes Commission now had the power and the will to act unilaterally, Isparhecher wrote Commissioner McKennon on December 22, 1898, enclosing a resolution of the National Council inviting him to come to Okmulgee to begin enrollment and to negotiate amendments to the Curtis Act with a seven-member commission chaired by Roley McIntosh.

On March 31, 1899, Isparhecher appointed Wesley Smith, Hotulke Marthla, and James Gregory to work with officials of the Dawes Commission; the officials had opened a land office at Muskogee on April 1, 1899, in spite of the Creeks’ preference that it be located at Okmulgee. On April 4, 1899, a National Committee consisting of Samuel J. Haynes, James R. Gregory, Napoleon B. Moore, and Wallace McNac was appointed to “aid the Dawes Commission in the identification and enrollment of citizens … and to defend the rights of the Creek people.”(52)

The land office operated under rules and regulations that had been issued by the secretary of the interior on October 7, 1898, and became a “mecca of every phase of humanity which the broad domain of Indian territory nourishes and supports.”53 Phillip B. Hopkins was appointed enrolling clerk. Applicants for enrollment were sworn in, and the information they gave was entered on cards by the commission’s stenographer, D. W. Yancey.

Testimony was later transcribed, but the cards became the official record and were considered the final word on any dispute.54 The key step in the application process was an examination of the “authenticated” rolls of 1890 and 1895 and the various “Omitted” and supplemental rolls that the Dawes Commission had acquired.

If the applicant’s name could be found on the rolls, he or she was issued a citizenship certificate and sent to another office to select an allotment of 160 acres. On May 6, 1899, Abe Kernals was appointed a “prosecuting witness” for the Creeks, and he challenged many of the applicants’ claims. The commission insisted on using the 1895 roll as the basis for its decisions even though Isparhecher wrote them on October 31, 1899, that it was “not an authenticated one” and that the commission would not be “wisely guided by the census roll of 1895.”(55)

The Dawes Commission adopted a very narrow interpretation of its enrollment powers, claiming that the Curtis Act limited eligibility to those people who were on an authenticated roll or had been added by either the commission or the U.S. court under the 1896 act. Thus, even if individuals could make a strong case that they should have been on existing tribal rolls, the commission refused to add their names.

It noted in its annual reports that applicants had the “erroneous idea” that “blood alone constituted a valid claim to citizenship … regardless of other qualifications required by treaties and the constitution, laws, and usages of the several nations.”56 Some applicants who probably had “Indian blood” were rejected because the commission was determined to be guided by the letter of the law and not the merits of the case. This position frustrated applicants and their lawyers at the time and drives present-day genealogists to tears.

Many of the full-bloods could not speak English, and the commission’s interpreter, Sam Checote, had to try to translate. The members of the Creek committee were also allowed to question applicants and often produced witnesses to refute their claims. When they submitted a bill to their National Council for fifty dollars each for their services, Commissioner Bixby endorsed the bottom with the note that their “help [was] of great value.”(57)

The commission reported to the secretary of the interior on April 15 that “the full bloods of the Creek Nation have been very slow to accede to the policy of the Government . . . and the work of enrolling has been materially retarded by a clear determination on their part to ignore the requirements of the Commission.”(58) The commission complained that Creek officials were opposing enrollment and had told the Town Kings “to carry home with them the rolls of their respective towns.”(59)

Because summers in Indian Territory were intolerably hot, the Dawes Commission agreed to adjourn in July and meet again in August after issuing subpoenas for people who had refused to appear.

If the full-bloods would not come to the commission, then the commission would go to them; Hopkins and his enrolling clerks loaded up their wagons and traveled around the Creek Nation. They left Okmulgee on November 8 and set up their two tents in Tuskegee after their wagon broke down.

Hopkins reported to Bixby on November 24, 1899, that 75 percent of the people “are absolutely opposed to enrollment and allotment,” and the rest were “indifferent.”(60)

He complained that enrollment was difficult because settlements were scattered, travel was hindered by high water, and instructions were held up by “belated mails.” To make matters worse, he had to use a mule with a bad leg and a buggy that was a “discarded relic.”

While Hopkins was struggling with transportation, the Creeks made another effort to preempt the commission’s enrollment work. On November 21, 1899, D.M. Hodge wrote Bixby to inform him that the National Council was preparing to take a census and asked for copies of the blank forms used by the commission. Bixby responded the next day that “any census or citizenship roll or list which might be prepared by the tribal authorities of the Creek Nation, would not be recognized by the Government of the United States”61 The Creeks apparently dropped the project.

The enrollment clerks next moved to Moran on December 1, 1899, and then to Bristow before returning to Okmulgee on December 14. On January 29, 1900, the enrollment party was called back to Muskogee “in order to reduce expenses.” Hopkins resigned his $150-a-month job on February 16, 1900.

The Creek committee followed the Dawes Commission almost everywhere in its efforts to help and protect the tribe’s rights. James Gregory was probably the most active member, and he frequently wrote Isparhecher, who was apparently a political ally. On July 7,1899, Gregory wrote that the Creeks had been “betrayed” by “bad politicians” and that the “very men who had paraded as patriots had been selling citizenship certificates to non-citizens.”

He told Isparhecher that it was “too bad” he was not going to run for chief again because the “corrupt politicians” were “robbing the nation” and the “white boomers” were “using negroes to break Indian land title.”(62)

Gregory sent Isparhecher another long report on his activities on September 27, 1899, in which he noted that the Dawes Commission “has uniformly extended to us every courtesy and afforded us every opportunity to guard the rights of the Nation.”63 The Creek watchdogs had objected to about 250 applicants and saved the Nation “thousands of acres of land.”

Gregory warned that this was the “last opportunity our government will have to correct the Creek rolls” and recommended confirmation of the Creek payroll of 1890 as the basis for all tribal enrollments. Having spent $140 of his own money, he repeated his constant plea for the National Council to appropriate funds for expenses and to pay witnesses who could refute fraudulent claimants.

While the Dawes Commission traveled around the Creek Nation trying to enroll people under the Curtis Act, Duval still fought the battle against the people who had been enrolled under the 1896 act.

Many of these people had appealed Judge Springer’s denial of their applications to the U.S. Supreme Court, and Duval proudly reported to Isparhecher on May 25, 1899, that the “Creek Nation gained all cases appealed.”64

On September 25,1899, Duval gave Isparhecher the bad news that the U.S. Supreme Court had ruled that the hated Curtis Act was constitutional and had sustained the validity of all acts relating to the powers of the Dawes Commission.

He noted that this ruling “brings the Five Civilized Tribes face to face to the extinction of the tribal governments.”65 Duval observed that although the “Indian of the past disappears in the romance of the past,” everything would turn out for the best because now the “Indian becomes a U.S. citizen possessed of his land in fee and armed with the ballot.”(66)

It is not clear if Duval, who eventually moved to Okmulgee and went into the real estate and investment business, actually believed this, but it is certainly doubtful that the full-blood Isparhecher did.

(A 4 part article)<1> 2> ><3> <4>


Muscogee (Creek) Tribes
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