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The form of government of 4 of The Five Tribes or nations in Indian Territory is similar to that of the states in the United States, having 3 departments, executive, legislative, and judicial, whose functions are about the same as in the states. The Cherokees, Chickasaws, Choctaws, and Creeks have written and printed codes of laws. The Seminoles have no written or printed laws or constitution, and enforce the Creek laws, except that the principal chief has no pardoning power. There are also a first and second chief and a national council, which is, in fact, a legislature and a supreme court as well, composed of 14 “band chiefs”. Still, the government is virtually in the hands of two or three men, who control its policy and finances.
The constitution of the Cherokee Nation is based upon that of Mississippi, and its provisions have been repeatedly outlined in government reports; for example, in the report of the Commissioner of Indian Affairs for 1885, page 149 and following, as given by United States Indian Agent Robert L. Owen. The forms of government in the other tribes, except Seminoles, are in general similar.
Laws Of The Creek Nation
The constitution of the Muscogee (Creek) Nation in effect March 1, 1890, consists of 10 articles, with 34 sections. It provides for the usual executive, judicial, and legislative departments, but with extraordinary powers in each.
The laws made under this constitution maintain the power of the officials, and so the entire official body is interested in preventing any change in the existing laws or methods, and most of the people are content so long as they pay no direct taxes.
These laws govern citizens of the Muscogee Nation only. No citizen of the United States can become a citizen of the Muscogee Nation, nor any citizen of the Muscogee Nation become a citizen of the United States by Muscogee rule.
Four sections of a portion of the laws of the Muscogee Nation, known as “civil laws”, are given in full.
These laws are enacted under a constitution of a so-called nation erected within the republic of the United States and claiming an authority as high as that of the national government, and they have never been questioned in a United States court.
Extracts, Be it enacted by the national council of the Muscogee Nation, That all meetings and conventions, and all secret movements having for their object the prevention of the execution of law, or the subversion of the laws and constitution, are hereby forbidden. Any citizen of this nation who shall be found guilty of the violation of the above law shall receive one hundred lashes on the bare back for each such offense. Approved August 1872.
Be it further enacted, That no citizen of this nation shall exercise the power of petitioning any foreign power upon any question, when such petition shall be in its nature subversive of the laws and constitution of this nation; and any citizen who shall be found guilty of violating the above law shall receive fifty lashes on the bare back.
Be it further enacted, That no citizen of this nation shall exercise the right of attending any meeting or council called by an alien or aliens, when such meeting is intended to produce lawlessness, or is subversive of the constitution and laws of this nation; and any citizen found guilty of -violating the above law shall receive fifty lashes.
Ile it further enacted, That no citizen of this nation shall be permitted to carry, knowingly, any message or dispatch to for ward or promote any move having a tendency to prevent the free operation of the laws and constitution of this nation. Any person or persons found guilty of the violation of this law shall be fined the sum of fifty dollars, which fine shall be paid into the national treasury; but if unable to pay, he or she shall receive twenty-five lashes. Approved August 1872.
Bibliography Of The Laws Of The Five Civilized Tribes
The laws of the Cherokee Nation are in one volume, 284 pages, in English, entitled “Constitution and Laws of the Cherokee Nation”, published by authority of the Cherokee national council. These laws are also published in the Cherokee language.
The laws of the Creek Nation are in one volume, 250 pages, in English, entitled “Constitution and Laws of the Muscogee Nation, as compiled by L. C. Perryman, March 1, 1890”. These. laws are also published in the Creek language.
The Seminoles have no written or printed laws. The Creek laws as a rule are applied among the Seminoles, whose government is in many features still almost tribal and virtually in the control of three or four men.
The codified laws of the Choctaw Nation are in one volume, in English; 200 pages, “Constitution, Treaties, and Laws of the Choctaw Nation, made and enacted by the Choctaw legislature, 1887”.
The Chickasaw laws are in one volume, 343 pages, in English, “The. Constitution, Treaties, and Laws of the Chickasaw Nation, made and enacted by the Chickasaw legislature, 1890”.
United States Indian Agent
There is a United States Indian agent for The Five Tribes, who resides at Muscogee, Creek Nation. This agency, known as “Union agency”, is maintained in pursuance of certain treaties made many years ago, and the agents original functions are mostly obsolete. In the Creek Nation, however, he has a quasi veto of some matters cognizable with the council. This agent has a clerk, and received $2,000 per year. The duties he performs under the law, while nominal in most instances, are really of the most arduous and responsible character. He is the executive arm of the nation in Indian Territory, making reports to and acting for the Department of the Interior, This agent has under him a United States Indian police force of 40 men and officers who travel about the country and assist in keeping the peace. This force is in addition to the United States marshals and the, Light Horse or other policemen of The Five Tribes.
United States Courts
The United States courts authorized in Indian Territory by the act of March 1, 1889, now apply to The Five Tribes and only to civil causes and for cases which the courts of The Five Tribes may not have adjudicated. As to these courts the Commissioner of Indian Affairs, in 1890, reports, pages lxxxi-lxxxii:
Since my last annual report, by an act approved May 2, 1890 (26 Stats., 81, and. page 371 of this report), Congress has created the territory of Oklahoma out of a part of what was the Indian Territory, establishing therein a territorial government. By the same act Indian Territory is defined to comprise “all that part of the United States which is bounded on the north by the state of Kansas, on the east by the states of Arkansas and Missouri, on the south by the state of Texas, and on the west and north by the territory of Oklahoma”. In other words, all that portion of the old Indian Territory occupied by The Five Civilized Tribes and by the several tribes under the jurisdiction of the Quapaw agency now composes the Indian Territory.
The said act, in section 29 at seq., proceeds to limit the jurisdiction of the United States court in the Indian Territory established by the act of March 1, 1889 (25 Stats,, 783), to the Indian Territory as above defined and to enlarge the authority conferred on that court by the said act, giving it jurisdiction within the limits of the said Indian Territory over all civil cases therein, except those over o which the tribal courts have exclusive jurisdiction.
The Indian Territory is divided into 3 judicial divisions- and the court will be held for the first division, consisting of the country occupied by the Indian tribes in the Quapaw agency, the Cherokee country east of 90 degrees of longitude and the Creek country, at Muskogee, in the Creek nation; for the second division, consisting of the Choctaw country, at South McAlester, in the Choctaw nation; and for the third division, consisting of the Chickasaw and Seminole countries, at Ardmore, in the Chickasaw nation.
The court is given probate jurisdiction and certain of the general statutes of the state of Arkansas are extended over and put in force in the Indian Territory.
It is authorized to appoint not more than 3 commissioners for each judicial division, who “shall be ex officio notaries public and shall have the power to solemnize marriages”; they shall also “exercise all the powers conferred by the laws of Arkansas upon justices of the peace in their districts”.
Except as otherwise provided in the law, appeals and writs of error may be taken and prosecuted from the decisions of this court to the Supreme Court of the United States in the same manner and under the same regulations as from the circuit courts of the United States.
Much good is expected to result from the enlarged jurisdiction of the court, and especially from that provision of the law which gives the judge of the “United States court in the Indian Territory the same power to extradite persons who have taken refuge in the Indian Territory, charged with crimes in the states or other territories of the United States, that may be now exercised by the governor of Arkansas in that state”. This power properly exercised will, it is expected, have the effect to purge the territory to a great extent of the criminal element that for years is said to have found an asylum there where pursuit and punishment seldom, if at all, found its way, to which element much of the introduction of whisky and the moral degradation of many of the Indians is due.
The Indian Territory is now provided with a judicial system which reaches in its jurisdiction every manner of controversy that may arise, and the exercise of the authority of this office to interfere and settle disputes arising in that country over property rights is no longer necessary. I have therefore instructed the agent for the Union agency to refer to the proper court for remedy all parties who apply to him for settlement of civil controversies, unless the complainant is an Indian whose poverty practically excludes him from his remedy in the court and the party against Whom the complaint is made is en intruder and a trespasser.
The courts being of limited jurisdiction they have not thus far been of the service expected.
According to the report of the United States Attorney General, 1800, the leading items are as follows:
Civil suits commenced, United States, not a party, for the year ending June 30,1890, 593.
Tried, judgment for plaintiff, 85; judgment for defendant, 13. Amount of judgments rendered, $73,545.14. Dismissed or discontinued, 94.
Suits in the United. States court from Indian Territory, miller solicitor of the treasury, 181.
Amount sued for during the fiscal year, $23,250. Amount reported in judgments on the above suits, $10,871. Amount collected, $1,161.15.
The total expenses of the court for the year to Jane 30, 1890, were $72,227.49. The items were:
Marshals’ fees $18,541.55
Support of prisoners 6,671.00
Regular compensation to United States attorneys 2,488.30
Special compensation to United States attorneys 28.00
Rent of courtrooms 1,726.64
The criminal business of the Indian Territory where it relates to noncitizens is tried in the United States district courts at Fort Smith, Arkansas, and Paris, Texas. For the fiscal year 1890 the court expenses at Fort Smith, Arkansas, incurred and paid by the United States were $242,813.41 ,and at Paris, Texas, $137,454.44. There are 200 deputy United States marshals at one court alone. A large population at each of these points derives an income from the arrest in Indian Territory of persons charged with crime against the laws of the United States, hundreds of whom are not convicted.
The Attorney General of the United States, in his annual report of 1890, pages xix and xx, says:
In my last report attention was called to the great expense of the courts having jurisdiction of felonies in the Indian Territory. I again call attention to what was there said, and especially emphasize the same with reference to the court at Paris, Texas. The necessity for a modification of the present state of things there is twofold. It is a grievous hardship that men charged with crime, and the witnesses in support of or against such charges, shall be required to travel oftentimes many hundred miles in order to reach the tribunal where the trial of such charges is to be had.
In the second place the expense to the government of maintaining such a system is simply enormous; so great, indeed, that it can not be met out of the ordinary appropriations for such purposes without using moneys necessary to conduct the ordinary business of other -United States courts.
Along step toward a better state of things would be taken if the courts in the Indian Territory were given full jurisdiction of felonies. My information, I think, justifies the assertion that the objection that good juries can not be had in that court is without foundation.
Another evil closely related to the same subject matter is the practice which in the past has prevailed in some districts of making arrests and conveying prisoners long distances and at great expense, without sufficient reason, for examination or bail; instead of taking them before the nearest commissioner, An amendment requiring prisoners to be taken before the nearest commissioner for examination or bail, unless for special reasons and on cause shown, would he a great improvement.
Any change in the existing system is stoutly resisted by interested parties in the localities above named.