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A natural result of land cessions by the Indians to the U. S. Government was the establishment of reservations for the natives. This was necessary not only in order to provide them with homes and with land for cultivation, but to avoid disputes in regard to boundaries and to bring them, more easily under control of the Government by confining them to given limits. This policy, which has been followed in Canada under both French and English control, and also to some extent by the colonies, was inaugurated by the United States in 1786. It nay he attributed primarily to the increase of the white population and the consequent necessity of confining the aboriginal population to narrower limits. This involved a very important, even radical, change in the habits and customs of the Indians, and was the initiatory step toward a reliance upon agricultural pursuits for subsistence. Reservations in early days, and to a limited extent more recently, were formed chiefly as the result of cessions of land; thus a tribe, in ceding land that it held by original occupancy, reserved from the cession a specified and definite part thereof, and such part was held under the original right of occupancy, but with the consent of the Government, as it was generally expressly stated in the treaty defining the bounds that the part so reserved was “allotted to” or “reserved for” the given Indians, thus recognizing title in the Government. However, as time passed, the method of establishing reservations varied, as is apparent front the following return, showing the method of establishment of the various reservations, given by the Commissioner of Indian Affairs in his Report for 1890: By Executive order, 56; by Executive order under authority of Congress, 6; by act of Congress, 28; by treaty, with boundaries defined or enlarged by Executive order, 15; by treaty or agreement and act of Congress, 5; by unratified treaty, 1; by treaty or agreement, 51.
The setting aside of reservations by treaty was terminated by the act of Mar. 3, 1871, which brought transactions with the Indians raider the immediate control of Congress and substituted simple agreements for solemn treaties. By sundry subsequent laws the matter has been placed in control of the President. Reservations established by Executive order without au act of Congress were not held to be permanent before the general allotment act of Feb. 8, 1887, under which the tenure has been materially changed, and all reservations, whether created by Executive order, by act of Congress, or by treaty, are permanent. Reservations established by Executive order under authority of Congress are those which have been authorized by acts of Congress and their limits defined by Executive order, or first established by Executive order and subsequently confirmed by Congress. The Indian titles which have been recognized by the Government appear to have been:
- The original right of occupancy, and
- The title to their reservations, which differs in most cases from the original title in the fact that it is derived front the United States. There have been some titles, and a few of them still exist, which the Indian Bureau deems exceptions to this rule, as where the reservation was formed by restricting the original areas or where reservations have been patented to tribes by the Government.
Examples of the latter class are the patents to the Cherokee, Choctaw, and Creek nations. In a few instances the Indians purchased the lands forming in whole or in part their reservations. The construction given to these by the Indian Bureau and the courts is that they are not titles in fee simple, for they convey no power of alienation except to the United States, neither are they the same as the ordinary title to occupancy; they are “a base, qualified, or determinable fee,” with a possibility of reversion to the United States only, “and the authorities of these nations may cut, sell, and dispose of their timber, and may permit mining and grazing, within the limits of their respective tracts, by their own citizens.” The act of Mar. 1, 1889, establishing, a United States court in Indian Territory, repealed all laws having the effect of preventing the Five Civilized Tribes in said Territory (Cherokee, Choctaw, Chickasaw, Creek, and Seminole) from entering into leases or contracts with others than their own citizens for mining coal for a period not exceeding ten years. As a general rule the Indians on a reservation could make no leases of land, sales of standing timber, or grants of wining privileges or rights of way to railways without the authority of Congress. On the other hand, it was obligatory upon the Government to prevent any intrusion, trespass, or settlement on the lands of any tribe or nation of Indians unless the tribe or nation had given consent by agreement or treaty.
The idea of removing the Indians residing east of the Mississippi to reservations west of that river was a policy adopted at an early date. The first official notice of it appears in the act of Mar. 26, 1804, “erecting Louisiana into two territories, and providing the temporary government thereof.” By treaty with the Choctaw in 1820 they had been assigned a new home in the west, to include a considerable portion of west Arkansas, with all that part of the present Oklahoma south of the South Canadian and Arkansas Rivers. In 1825 President Monroe reported to the Senate a formal “plan of colonization or removal”1 , of all tribes then residing east of the Mississippi, to the same general western region. In accordance with this plan the present Oklahoma, with the greater portion of what is now Kansas, was soon after constituted a territory, under the name of “Indian Territory,” as a permanent home for the tribes to be removed from the settled portions of the United States. Most of the northern portion of the territory was acquired by treaty purchase from the Osage and Kansa. A series of treaties was then inaugurated by which, before the close of 1840, almost all the principal Eastern tribes and tribal remnants had been removed to the ” Indian Territory,” the five important Southern tribes Cherokee, Choctaw, Chickasaw, Creek, and Seminole, being guaranteed autonomy under the style of “Nations.” By subsequent legislation Kansas was detached from the Territory, most of the emigrant tribes within the bounds of Kansas being again removed to new reservations south of the boundary line. By other and later treaties lands within the same Territory were assigned to the actual native tribes, Kiowa, Comanche, Wichita, Cheyenne, etc., whose claims had been entirely overlooked in the first negotiations, which considered only the Osage and Kansa along the eastern border. Other tribes were brought in at various periods from Texas, Nebraska, and farther north, to which were added, as prisoners of war, the Modoc of California (1873), the Nez Percé of Oregon and Idaho (1878), and the Chiricahua Apache of Arizona (1889), until the Indian population of the Territory comprised some 40 officially recognized tribes.
An unoccupied district near the center of the Territory, known as Oklahoma, had become the subject of controversy with intruding white settlers, and was finally thrown open to settlement in 1889. In 1890 the whole western portion of Indian Territory was created into a separate territory under the name of Oklahoma. In the meantime, under provisions of an allotment act passed in 1887 (see Land tenure), agreements were being negotiated with the resident tribes for the opening of the reservation to white settlement. In 1906 a similar arrangement was consummated with the five autonomous tribes of the eastern section, or Indian Territory, the Cherokee, Choctaw, Chickasaw, Creek, and Seminole, together with the several small tribes in the northeast corner of Indian Territory. In the following year, 1907, the whole of the former Indian Territory was created into a single state under the name of Oklahoma.
According to the report of the Commissioner of Indian Affairs, the number of reservations in the United States in 1908, including the 19 Spanish grants to the Pueblo Indians, was 161, aggregating 52,013,010 acres.
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see Schoolcraft, III, 573 et seq., 1853 ↩