Primary Source: Payne's Pretexts (Indian Chieftain, Vinita, I.T. - May 22, 1884)
“Payne's Pretexts: The Slender Sophistry by Which the Great Boomer Deceives His Followers” - The Indian Chieftain – Vinita, I.T. (May 22, 1884). Slightly Edited For Classroom Use.
Fort Reno, I. T., May 3.—A history of all the Oklahoma "booms' which have been inaugurated by Capt. D. L. Payne and others would fill a book and afford but little profitable reading. But the persistency with which they have been kept up has been surprising and has half persuaded many honest readers that the movement must have some basis in equity or justice. A short review of the situation will probably be of interest, first, then, where is Oklahoma? It is bounded on the north by a line as near 35 deg. 10 min. north latitude as can well be expressed on the map, being the southern line of the famous Cherokee Strip, west of the Arkansas River. Its eastern boundary since the recent Iowa and Kickapoo reservations were taken from it, is about 97 deg. and 20 mm. west longitude. Its southern boundary is the Canadian River. Its western boundary is practically the 98th degree of west longitude from the Canadian River to the Cimarron, and thence up that stream north-west to the line of the Cherokee Strip.
Oklahoma, at present, is about fifty miles in width from east to west, and eighty in length north to south. It originally belonged to the Creeks and was secured to them by the treaty of February 14, 1833 in pursuance of act of Congress of May 28, 1830, by which the President was authorized to set apart the country now known as the Indian Territory for the use of Indians to be removed thereto from east of the Mississippi River. By the treaty made August 7, 1856, between the Creeks and the United States, Oklahoma was conveyed to the Seminole Indians, on the express condition that none of the land so conveyed should be sold or otherwise disposed of in the future without the consent of both tribes. At the end of the late war the Seminoles and Creeks were declared to have forfeited many of their treaty rights by having joined the Southern Confederacy and new treaties were made with them, as with the other civilized tribes.
The treaty, dated March 21, 1866, says: "In compliance with a desire of the United States to locate other Indians and freedmen thereon the Seminoles cede and convey to the United States their entire domain, being the tract of land ceded to the Seminole Indians by the Creek Nation under provisions of article 1, treaty of the United States with the Creeks and Seminoles, made August 7, 1856, in view of the urgent necessity of the United States for more land in the Indian Territory." It will be remembered that these Indian tribes all owned slaves before the war. The Emancipation Proclamation set them free. The United States Government, not feeling confident that the freedmen would be treated fairly by their former Indian masters, or be assimilated, or accorded tribal rights, provided by this treaty for a section of country upon which they could be located by themselves, precisely as the Cheyennes, Arapahoes, Iowas, Comanches, Wichitas, Pawnees, Sac and Fox, Nez Perces, Poncas, Modocs, Kansas (or Kaws), Osages, Pottowatamies, Absentee Shawnees, and perhaps some others, were afterwards settled. The title vested in the United States Government beyond question, but for a specific purpose.
PAYNE'S GROUND OF ACTION.
And here the trouble begins. Payne and his followers claim that, having been purchased from the Indians, it ceased to be Indian territory and was released from the operation of all laws enacted for that territory, and became part of the public domain of the United States. But this certainly does not follow. The United States acquires title forts, military reservations, post office and custom house sites, navy yards, etc., but no one supposes such tracts to be part of the public domain.
But, as if to set this beyond dispute, section 2258 of the Revised Statutes says "that lands included in any reservation by any treaty, law, or proclamation of the President, for any purpose, shall not be subject to the rights of pre-emption unless otherwise specially provided for by law." Pre-emption laws only extend to unappropriated lands, and these lands were appropriated to a certain use by the treaty under which they were acquired—vis: the use freedmen and friendly Indians whom the Government might wish to locate there. It does not follow that those lands must all be given to such tribes immediately. They are held in trust for exigencies." By the treaty of 1866 many tribes have been so settled, and presumably many others will be.
Payne's party claim also that the recent act of Congress prohibiting the settlement of other tribes in the Indian Territory threw all unoccupied land at that date into the public domain. But the act does not say so. The land was originally obtained for a particular purpose. If no other friendly tribes are allowed to be settled in the Indian Territory, this land should be divided among those already there. Besides, this act may be repealed by any subsequent Congress, and the work of transferring other friendly Indians to that country go on as before.
Driven from those positions, the Payne "boomers" claim that the Oklahoma lands were thrown open to settlement by the sixth section of an act of Congress approved July 27, 1866 granting lands to aid in the construction of a railroad and telegraph line from the States of Missouri and Arkansas, which reads as follows: "That the President of the United States shall cause the lands to be surveyed for forty miles in width on both sides of the entire line of said road after the general route shall be fixed and as fast as may be required by the construction of said railroad, and the odd sections of land hereby granted shall not be liable to sale or entry or pre-emption, before or after they are surveyed, except by said company, as provided in this act: but the provisions of the act of September, 1841, granting pre-emption rights and the acts amendatory thereof and the act entitled an act to secure homesteads to actual settlers on the public domain, approved May 20, 1862, shall be and the same is hereby extended to all other lands on the line of said road when surveyed, excepting those hereby granted to said company."
The Government has continuously asserted that these provisions of this act did not apply to the lands in the Indian Territory. The railroad company did not claim that the language quoted applied to land in the Indian Territory. The United States might be pardoned for granting a necessary right of way through the Indian Territory against the protests of all the Indians concerned, but none but a Payne “boomer” has ever before claimed that enough additional land could be taken to pay for building the railroad. The treaty by which the United States gained title to the land provided that it should not be used for any other purpose than the one named without the consent of both Creeks and Seminoles. This has not and can not be obtained.
THE LAW DEFEATED.
In addition to this, the decisions of United States Courts in similar cases are numerous and uniform to the effect that whenever a tract of land has been once appropriated to public use it is severed from the public domain, and that applies specially to the Indian reservations. Capt. Payne has been repeatedly ejected from the Indian Territory as an intruder. The law provides a penalty of $1,000 for each offense excepting the first. Two judgments have been obtained against him in the United States Districts but no property has been found from which to collect the fine. The law is defective in not providing some other punishment for impecunious intruders. An amendatory act has lately passed the Senate adding imprisonment, but has not been acted upon by the House. In the meantime the boom goes on. Payne sells certificate of membership at from $2 to $5 each, and the writer of this saw one numbered 10,095. The surveyor of the "colony" charged two of the men now at this post under arrest $35 each for locating their claims, which fees they declared they paid. The opinion of the Attorney General, the declarations of the Interior Department and the orders of the Secretary of War are counted as nothing by these men, as against the opinion of Capt. Payne.