Stephens v. Cherokee Nation Choctaw Nation
By the sixteenth section of the Indian appropriation act of March 3, 1893 (27 Stat. 612, 645, c. 209), the president was authorized to appoint, by and with the advice and consent of the senate, three commissioners 'to enter into negotiations with the Cherokee Nation, Choctaw Nation, Chickasaw Nation, the Muscogee (or Creek) Nation, the Seminole Nation, for the purpose of the extinguishment of the national or tribal title to any lands within that territory now held by any and all of such nations or tribes, either by cession of the same or some part thereof to the United States, or by the allotment and division of the same in severalty among the Indians of such nations or tribes, respectively, as may be entitled to the same, or by such other method as may be agreed upon between the several nations and tribes aforesaid, or each of them, with the United States, with a view to such an adjustment, upon the basis of justice and equity, as may, with the consent of such nations or tribes of Indians, so far as may be necessary, be requisite and suitable to enable the ultimate creation of a state or states of the Union which shall embrace the lands within said Indian Territory.'

The commission was appointed, and entered on the discharge of its duties, and under the sundry civil appropriation act of March 2, 1895 (28 Stat. 939, c. 189), two additional members were appointed. It is commonly styled the 'Dawes Commission.'

The senate, on March 29, 1894, adopted the following resolution:

'Resolved, that the committee on the Five Civilized Tribes of Indians, or any subcommittee thereof appointed by its chairman, is hereby instructed to inquire into the present condition of the Five Civilized Tribes of Indians, and of the white citizens dwelling among them, and the legislation required and appropriate to meet the needs and welfare of such Indians; and for that purpose to visit Indian Territory, to take testimony, have power to send for persons and papers, to administer oaths, and examine witnesses under oaths; and shall report the result of such inquiry, with recommendations for legislation; the actual expenses of suc  inquiry to be paid on approval of the chairman out of the contingent fund of the senate.'

The committee visited the Indian Territory accordingly, and made a report May 7, 1894. Sen. Rep. No. 377, 53d Cong., 2d Sess. In this report it was stated: 'The Indian Territory contains an area of 19,785,781 acres, and is occupied by the Five Civilized Tribes of Indians, consisting of the Cherokees, Creeks, Choctaws, Chickasaws, and Seminoles. Each tribe occupies a separate and distinct part, except that the Choctaws and Chickasaws, though occupying separately, have a common ownership of that part known as the 'Choctaw and Chickasaw Territory,' with rights and interests as recognized in their treaties as follows: the Choctaws, three-fourths, and the Chickasaws, one-fourth. The character of their title, the area of each tribe, together with the population and an epitome of the legislation concerning these Indians during the last sixty-five years, is shown by the report of the committee on Indian affairs submitted to the senate on the 26th day of July, 1892' (Sen. Rep. No. 1079, 52d Cong., 1st Sess.), and so much of that report as touched on those points was set forth.

The committee then gave the population from the census of 1890 as follows: Indians, 50,055; colored Indians, colored claimants to Indian citizenship, freedmen and colored, wholly or in part, 18,636; Chinese, 13; whites, 109,393; whites and colored on military reservation, 804; population of Quapaw Agency, 1,281, or a total of 180,182; and said: 'Since the taking of the census of 1890, there has been a large accession to the population of whites who make no claim to Indian citizenship, and who are residing in the Indian Territory with the approval of the Indian authorities. It is difficult to say what the number of this class is, but it cannot be less than 250,000, and it is estimated by many well-informed men as much larger than that number, and as high as 300,000.' After describing the towns and settlements peopled by whites, and the character of the Indian Territory, its climate, soil, and natural wealth, the report continued:

'This section of country was set apart to the Indian with the avowed purpose of maintaining an Indian community beyond and away from the influence of white people. We stipulated that they should have unrestricted self-government, and full jurisdiction over persons and property within their respective limits, and that we would protect them against intrusion of white people, and that we would not incorporate them in a political organization without their consent. Every treaty, from 1828 to and including the treaty of 1866, was based on this idea of exclusion of the Indians from the whites, and nonparticipation by the whites in their political and industrial affairs. We made it possible for the Indians of that section of country to maintain their tribal relations, and their Indian polity, laws, and civilization if they wished so to do. And, if now, the isolation and exclusiveness sought to be given to them by our solemn treaties is destroyed, and they are overrun by a population of strangers five times in number to their own, it is not the fault of the government of the United States, but comes from their own acts in admitting whites to citizenship under their laws, and by inviting white people to come within their jurisdiction, to become traders, farmers, and to follow professional pursuits.

'It must be assumed, in considering this question, that the Indians themselves have determined to abandon the policy of exclusiveness, and to freely admit white people within the Indian Territory, for it cannot be possible that they can intend to demand the removal of the white people either by the government of the United States or their own. They must have realized that when their policy of maintaining an Indian community isolated from the whites was abandoned for a time it was abandoned forever.'

The committee next referred to the class of white people denominated by the Indians as intruders,  n respect of whom there had been but little complaint in other sections of the Indian Territory than that of the Cherokee Nation; and went on to say:

'The Indians of the Indian Territory maintain an Indian government, have legislative bodies, and executive and judicial officers. All controversies between Indian citizens are disposed of in these local courts. Controversies between white people and Indians cannot be settled in these courts, but must be taken into the court of the territory established by the United States. This court was established in accordance with the provision of the treaties with the Choctaws, Chickasaws, Creeks, and Seminoles, but no such provision seems to have been made in the treaty with the Cherokees. We think it must be admitted that there is just cause of complaint among the Indians as to the character of their own courts, and a good deal of dissatisfaction has been expressed as to the course of procedure and final determination of matters submitted to these courts. The determinations of these courts are final, and so far the government of the United States has not directly interfered with their determinations. Perhaps we should except the recent case where the secretary of the interior thought it his duty to intervene to prevent the execution of a number of Choctaw citizens.'

The report then recapitulated the legislation conferring certain jurisdiction over parts of the Indian Territory on the district courts of the United States for the Western district of Arkansas, the Eastern district of Texas, and the district of Kansas; the establishment of the United States court in the Indian Territory; the inclusion of a portion of the Indian Territory within the boundaries of the territory of Oklahoma, and the creation of a new Indian Territory, over parts of which the jurisdiction of the district courts of Arkansas and Texas remained; and, for reasons assigned, recommended the appointment of two additional judges for the United States court in the Indian Territory, and of additional commissioners, and that the jurisdiction of the district courts should be withdrawn.

The matter of schools was considered, and finally the question of title to the lands in the Indian Territory; and the committee stated:

'As we have said, the title to these lands is held by the tribe in trust for the people. We have shown that this trust is not being properly executed, nor will it be if left to the Indians, and the question arises, what is the duty of the government of the United States with reference to this trust? While we have recognized these tribes as dependent nations, the government has likewise recognized its guardianship over the Indians, and its obligations to protect them in their property and personal rights.

'In the treaty with the Cherokees, made in 1846, we stipulated that they should pass laws for equal protection, and for the security of life, liberty, and property. If the tribe fails to administer its trust properly by securing to all the people of the tribe equitable participation in the common property of the tribe, there appears to be no redress for the Indian so deprived of his rights, unless the government does interfere to administer such trust.

'Is it possible, because the government has lodged the title in the tribe in trust, that it is without power to compel the execution of the trust in accordance with the plain provisions of the treaty concerning such trust? Whatever power congress possessed over the Indians as semidependent nations, or as persons within its jurisdiction, it still possesses, notwithstanding the several treaties may have stipulated that the government would not exercise such power; and therefore congress may deal with this question as if there had been no legislation save that which provided for the execution of the patent to the tribes.

'If the determination of the question whether the trust is or is not being properly executed is one for the courts, and not for the legislative depart ent of the government, then congress can provide by law how such questions shall be determined, and how such trust shall be administered, if it is determined that it is not now being properly administered.

'It is apparent to all who are conversant with the present condition in the Indian Territory that their system of government cannot continue. It is not only non-American, but it is radically wrong, and a change is imperatively demanded in the interest of the Indian and whites alike, and such change cannot be much longer delayed. The situation grows worse, and will continue to grow worse. There can be no modification of the system. It cannot be reformed. It must be abandoned, and a better one substituted. That it will be difficult to do your committee freely admit, but because it is a difficult task is no reason why congress should not at the earliest possible moment address itself to this question.'

On November 20, 1894, and November 18, 1895, the Dawes commission made reports to congress of the condition of affairs in the Indian Territory in respect of the manner in which lands were held by the members of the tribes, and of the manner in which the citizenship of said tribes was dealt with, finding a deplorable state of affairs, and the general prevalence of misrule.

In the report of November 18, 1895, the commission, among other things, said: 'It cannot be possible that in any portion of this country, government, no matter what its origin, can remain peaceably for any length of time in the hands of one-fifth of the people subject to its laws. Sooner or later violence, if nothing else, will put an end to a state of affairs so abhorrent to the spirit of our institutions. But these governments are of our own creation, and rest for their very being on authority granted by the United States, who are therefore responsible for their character. It is bound by constitutional obligations to see to it that government everywhere within its jurisdiction rests on the consent of the governed. There is already painful evidence that in some parts of the territory this attempt of a fraction to dictate terms to the whole has already reached its limit, and, if left without interference, will break up in revolution.'

And the commission, after referring to tribal legislation in the Choctaw and Cherokee tribes bearing on citizenship, the manipulation of the rolls, and proceedings in Indian tribunals, stated: 'The commission is of the opinion that, if citizenship is left, without control or supervision, to the absolute determination of the tribal authorities, with power to decitizenize at will, the greatest injustice will be perpetrated, and many good and lawabiding citizens reduced to beggary.' 

Notes
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