Prologue: Selected Articles
Spring 1997, Vol. 29, No. 1
Snakes & Scribes
The Dawes Commission and the Enrollment of the Creeks
By Kent Carter
What can you do when you "discover" a continent, but there are already people living there?  Europeans arriving in North America tried a number of approaches to solve what was often referred to as "the Indian Problem," depending on the relative military power of the natives and non-natives.  By the late 1870s, most tribes had been pushed onto reservations in areas that were generally undesirable and out of the path of settlement, but many friends of Native Americans became convinced that efforts to isolate and then civilize them were not working and that assimilating them into the general population would be a better policy.1
It became almost an article of faith with the reformers that private ownership of property was one of the most powerful tools that could be used to bring about assimilation.  They therefore set out to destroy the tribal governments and their system of communal ownership and give each Indian his or her own piece of land.  Getting the federal government to adopt a policy of allotment of land in severalty was almost an "obsession of the later nineteenth-century Christian reformers."2  They were convinced that such a policy would force the Indians to become more like the industrious white farmers who were rolling over them like a tidal wave.  Powerful economic interests supported the policy because it would open surplus land to non-Indians.  Congress gave in to a persistent lobbying effort driven by both good intentions and basic greed and passed a General Allotment Act that was signed into law on February 8, 1887.3
The Cherokee, Choctaw, Chickasaw, Creek, and Seminole tribes were exempt from this original legislation primarily because any change in title to their lands raised a tangle of legal questions.  They were collectively known as the Five Civilized Tribes because they had already adopted many of the economic, social, and governmental practices of whites and were widely perceived as so different from other tribes that some would come to question whether they were "real Indians."4  In the end, however, it did not matter how far these "civilized" tribes had already come on the road to assimilation because they occupied over twenty million acres of valuable land sitting almost dead center in a nation bent on economic development.  The appropriation bill for the Office of Indian Affairs that was passed on March 3,1893, authorized the President to appoint three commissioners to negotiate with the Five Civilized Tribes to bring about the allotment in severalty of their land.  Former Senator Henry L. Dawes, who had played a major role in getting the 1887 allotment law passed, was named chairman of what became known as the Dawes Commission.5
Not everyone wanted to be allotted land and assimilated.  In each tribe, both pro- and anti-allotment factions developed, and bitter struggles sometimes ended in violence.  The Four Mothers Society claimed to have twenty-four thousand Cherokee, Choctaw, Chickasaw, and Creek members who were opposed to any changes in the existing treaties.  Its leaders visited Mexico looking for a new home where they could escape allotment and maintain their communal land ownership.  Chitto "Crazy Snake" Harjo became the leader of a band of full-blood Creeks who opposed allotment.  His followers became widely known as the Snakes, and they would spend more than a decade resisting the Dawes Commission.6
In the Creek Nation, as in most Indian tribes, "membership" decisions were made by tribal "officials" based on tribal "customs and usages."7  Few tribes had written laws governing citizenship or even written census rolls.  In relatively small populations bound together by family or clan relationships "recognition of citizenship rested more upon family and neighborhood knowledge than upon official registration."8  When the Creek tribe was forced to move to what is now eastern Oklahoma in the late 1830s, tribal members attempted to retain pre-removal settlement patterns as much as possible.  An enumeration made in 1859 showed 13,537 Creeks living in forty-four towns, with the "Upper Creeks" along the Canadian River and the "Lower Creeks" along the Cimmaron River.9  Each Town King was supposed to keep track of his citizens, but there appear to have been few written census rolls made, and many of those disappeared.  The "tribal rolls were loosely kept and members of government took them home or loaned them to neighbors."10
The Creek constitution of 1867 gave the power to decide on applications for citizenship to the tribal courts for Coweta, Muskogee (Arkansas), Eufaula, Wewoka, Deep Fork, and Okmulgee districts.  Anyone claiming membership had to submit petitions and supporting affidavits to the court.11  Legal changes occurred soon after a general census of the Creek Nation was taken in April 1882.12  The power to determine citizenship was transferred from the district courts to the Committee on Citizenship in the Creek National Council by an act of November 29,1883.  G. W Stidham, a judge on the Creek Supreme Court, served as chairman of the committee, and A. P. McKellop was clerk.
In 1890 Congress authorized a fund of $400,000 for per capita payments that had accumulated under the 1866 treaty restoring relations between the U.S. government and the Creeks after the Civil War.  In order to determine who was eligible for the money, tribal officials in each town took a census and certified the results.  Officials in Coweta stated that "this census we took it all right."  The rolls were submitted to a special committee of the National Council established in October 1890, which had authority to investigate and make corrections.13  William Robinson served as chairman with Mrs. A. P. McKellop as clerk.
The payment, which amounted to twenty-nine dollars a person, was made by agents of the Department of the Interior at Okmulgee from January 22 to March 4, 1891.14  Principal Chief Legus C. Perryman was authorized to have triplicate copies of the census typewritten and certified, with one copy forwarded to the secretary of the interior "to be taken and accepted as the correct enumeration."15  A Special Committee under L. W Perryman was authorized to prepare an "Omitted Roll" that listed persons who did not participate in the payment and any children born after April 3, 1891.16  The 1890-1891 rolls listed a total of 13,842 citizens, including 4,203 former slaves who had been adopted by the tribe after the Civil War.17  The 1890 federal population census, taken at roughly the same time, shows about 18,000 people living in the Creek Nation, including 3,000 noncitizen whites.18
The Creeks had been exempt from the General Allotment Act, but their temporary reprieve from its intent ran out on March 3, 1893.  On that date Congress authorized the establishment of a commission to negotiate an agreement with the Five Civilized Tribes that would provide for the dissolution of the tribal governments and the allotment of their lands.  The commission, which would spend the next fourteen years trying to fulfill its mission, came to be commonly known as the Dawes Commission after its first chairman, Henry Laurens Dawes, the recently retired U.S. senator from Massachusetts.  Dawes was widely regarded as a friend of the tribes and an expert on Indian affairs.
The secretary of the interior made the commission's goal very clear in his instructions to Dawes: "success in your negotiations will mean the total abolition of the tribal autonomy of the Five Civilized Tribes and the wiping out of the quasi-independent governments within our territorial limits.  It means, also, ultimately, the organization of another territory in the United States and the admission of another state or states into the Union."19  With the establishment of the Dawes Commission, "the United States had finally determined to break down the autonomy of the Five Tribes and erect a white man's state upon the ruins of the Indian governments."20
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."
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.Snakes and Scribes, Part 2
|Articles published in Prologue do not necessarily represent the views of NARA or of any other agency of the United States Government.|