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The geography of this country was reshaped in the late 1800s and depending on who tells it, it’s either a story of good intentions…or one of outright theft.

Transcript

John Ross: [Cherokee language] John Ross.

Rebecca Nagle: John Ross is many things: a translator, a historian, a former chief of United Keetoowah Band of Cherokee Indians. He’s also a fluent Cherokee speaker. It’s his first language. John grew up on his family’s land near Greasy, Oklahoma. One Saturday this spring, he took me there.

John Ross: [In Cherokee]. There used to be a field. There were no trees here back then. They were just all, all  grassland. This is where my grandpa used to farm here and, you know, planted corn. But this is where we grew up.

Rebecca Nagle: John spoke to me in Cherokee, but I asked him to translate his words into English so you could understand. John is going to help tell this chapter of our story. It’s about how Cherokee land was stolen acre by acre. Fittingly, the story starts with the land itself.

John Ross: [Cherokee] where I grew up, I had kinfolks that we played all over the place and I would help my dad cut wood and we had gardens and I helped when I was even a young, a young boy start helping, you know, plant garden and cutting wood. [Cherokee] We went fishing, you know, the women would go gather the wild onions and blackberries, mushrooms. And a lot of times if you were young, you would go with the women and the men would go fishing and hunt.

Rebecca Nagle: This is where John’s family has lived for over a 140 years. Before Oklahoma became a state Cherokee Nation owned this land communally. The land belong to the tribe and citizens made their homes there. But in the early 1900s, the United States divided it up the land and assigned individual parcels to tribal citizens. John’s family lived here at the time, but it was only part of the land they were assigned. Most of it was far, far away.

John Ross: [Cherokee]. My great grandma was Sally Mink, and they gave her lands in Nowatta.

Rebecca Nagle: Sally was assigned to plots of land, one near where she lived, but the other was a 115 miles away.

John Ross: [Cherokee] She got 80 acres and her allotment was, you know, way off and never saw it.

Rebecca Nagle: Sally had never been to Nowata and would never go. The feds suspected as much. That was the whole point. Splitting up Indian land into multiple scattered pieces was common. In an era before cars, it would take landowner’s days to travel to distant parcels. They couldn’t tend to this faraway land or use it to better their lives. There was a term for these scattered pieces.

John Ross: [Cherokee] The surplus land was easy for someone to take that land away. And that’s what a lot of times happen to family.

Rebecca Nagle: That far flung surplus land became a squatter’s bounty. That’s the law in Oklahoma. If a stranger lives on your land for long enough, it becomes theirs. And it happened to Indian families all over the place, including John’s. Surplus land was just one of the many ways the government rigged the whole system against Indians. You’re used to hearing about how tribes lost land with arrows and guns. This episode, I’m going to tell you about how my tribe lost land to bureaucracy and corruption. And in some ways, it’s even more infuriating. And it’s that history of injustice that schemed to steal Indian land that Oklahoma used as the foundation of their argument in the Supreme Court. That allotment ended our reservations.

Rebecca Nagle: You’re listening to This Land, a podcast about broken promises, tribal land and murder. This year, the Supreme Court was supposed to decide whether or not half the land in Oklahoma is Indian country. But in a shocking twist, they postponed their decision until next year. The fate of this land still hangs in the balance. From crooked media, I’m your host, Rebecca Nagle, citizen of Cherokee Nation.

Rebecca Nagle: When John Ross’s great grandmother, Sally, got her two parcels of land in the early nineteen hundreds, she got them through a process called allotment. That’s what the Federal Government called it when they came, divided up our land and made it easy for white settlers to take right out from under us. This set of events is what Oklahoma pointed to when they argued our tribes no longer had reservations. It was the central question at the heart of Carpenter v. Murphy: whether or not allotment ended Muscogee Creek Nation’s reservation. But allotment isn’t just central to this case, it’s central to U.S. history. Through allotment, tribes nationwide lost two thirds of our land base, an area the size of Montana. This U.S. policy you’ve probably never heard of not only sectioned off the majority of tribal land, it reshaped the geography of our country. This story starts in the late 1800s, and depending on who tells it, it’s either a story of good intentions or one about outright theft. Starting in the 1870s, the U.S. government changed its approach towards Native Americans. Before then, they embraced a policy of annihilation, which included violent massacres, forced starvation and moving Native Americans into concentration camps. But in the late 1880s, the U.S. decided to try something new. Rather than killing Indians off, the government wanted to assimilate us. Individual Indians might survive, but our cultures are languages and our tribes would not. The governments sent Indian children to boarding schools, outlawed native ceremonies, and started the process of allotment. These new policies were supposed to be good for Indians, and one of their biggest cheerleaders was a senator named Henry Dawes. He took pity on Indians. He had convinced himself that they were poor because they owned land communally.

David Cornsilk: But the flaw that he saw in the system was that there was no incentive for one man to improve himself above his neighbors.

Rebecca Nagle: This is historian David Cornsilk, citizen of Cherokee Nation and the United Keetoowah Band of Cherokee Indians. He says Senator Dawes thought Indians were lacking one thing.

David Cornsilk: There was the one ingredient that has made the white man so successful, and that was greed, was lacking in the Indian culture.

Rebecca Nagle: Senator Dawes came up with a solution. The government would come in, break up the land and give each impoverished Indian their own private property. With a plot of land to farm, they would become self-interested capitalists. The only issue, Dawes had a cure for a problem that didn’t exist. Cherokees weren’t actually poor.

John Ross: [Cherokee] Senator Dawes came and talked to the chief and he was told by the chief that the Cherokees lived in these lands and, and there was no pauper in the Cherokee Nation. And, you know, Cherokees built their own homes. [Cherokee]  They governed themselves and they had their own court system and the courts and they had their own schools.

Rebecca Nagle: Owning land communally hadn’t slowed Cherokee’s down. People still built houses and tended to farms.

John Ross: [Cherokee] Cherokee Nation owned the land, but you could fence any portion and that became your right to use. And if you built the house, the house was yours.

Rebecca Nagle: So people didn’t own the land, but they did own whatever they built on it and it worked. Cherokee Society wasn’t failing. Poverty wasn’t the issue. The real problem, white people wanted our land and just like Dawes said, they were greedy.

John Ross: [Cherokee] The railroads came and all the people from back east, the white people started seeing all the vast land that Cherokees had and they came up with a scheme to, you know, to find a way to get this land.

Rebecca Nagle: And that scheme was allotment. Here’s David again:

David Cornsilk: Allotment was a program implemented by the United States ostensibly to, to provide individual Indians with land, economic opportunity. But none of that was really true in my opinion, that wasn’t their ultimate goal. Their ultimate goal was goal was dispossession. They wanted American Indian land. They wanted to make that land available to non-Indians.

Rebecca Nagle: To carry out allotment, the government created a new agency: the Dawes Commission. First, it took a census of all tribal citizens living in the territory of the Five Tribes. They counted more than 100,000 people. Then the Dawes commission assigned a piece of land roughly equal in size to each citizen. And just like that, in one bureaucratic swoop, the land of the Five Tribes went from being owned communally to being owned individually.  But Dawes plan, to make Indians better off, backfired.

David Cornsilk: Once allotment had taken place and everybody either had possession of their allotment or, it appeared as if they had possession of their allotment, then the feeding frenzy on land in eastern Oklahoma commenced.

David Cornsilk: Rather than delivering Indian people from poverty, allotment created it.

David Cornsilk: The impact of allotment on the Cherokees and the Five Civilized Tribes was to take a people who were basically independent—they weren’t wealthy, but they were economically self-sufficient— and to make them the poorest people in Oklahoma and possibly even the poorest people in the United States. So the whole system was designed to separate the Indian from his land.

Rebecca Nagle: After Oklahoma became a state in 1907, stealing Indian land became something of a cottage industry. Exploiting and swindling Indian landowners was so common, the profession got a name: grafting.

David Cornsilk: Grafters were an important part of the development of Oklahoma’s economy after statehood. And in fact, they were so important to the transfer of land from American Indian hands to non-native hands that grafting became a respected industry in the state of Oklahoma.

Rebecca Nagle: The Dawes Commission created different classes of Cherokee citizens with different rules for their land. They baked inequity into the system on purpose. The commission decided what land could be bought or sold and who got to decide. It made some people more vulnerable to theft, including children.

David Cornsilk: There was an entire industry in eastern Oklahoma and stealing land from Indian orphans. And if there were no orphans to be found, they would just simply kill their parents.

Rebecca Nagle: It was a brutal way to part children from their land. The classification system also introduced a new concept to Cherokee’s: blood quantum. It was the first time in our history that our citizens had been classified by blood. If you’re unfamiliar with blood quantum, think of the paperwork fancy dog owners use to track the pedigree of their poodle or German shepherd. Blood quantum is basically the same thing. But, for people. Since the early 1900s, the Federal Government has tracked the degree of Indian blood of every citizen of every tribe.

David Cornsilk: And so if you were a half-blood or higher and you got your land recognized by the Bureau of Indian Affairs as restricted or trust property, then you didn’t have to pay taxes on it.

Rebecca Nagle: Restricted land was land that couldn’t be sold or leased without approval from the Federal Government. Hence the term, restricted. This classification was supposed to protect vulnerable landowners, but it was short-sighted and didn’t protect people with lower blood quantum.

David Cornsilk: Because they were less than one half, they would automatically lose the restrictions and so the land would become taxable. They might not understand tax law and would probably lose that land.

Rebecca Nagle: Taxes were a foreign concept to Cherokee’s. Before allotment they didn’t exist. But now kids and grandkids were inheriting land they owed taxes on. Many people didn’t even realize they were being taxed until it was too late. And the county or the town would just come and take the land. You’d think in a system that put people in different categories, that some people would be better off. But allotment wanted everyone’s land. So things weren’t any better for people with higher blood quantum. A court could declare full-bloods incompetent and assign them a white guardian. It’s as messed up as it sounds. The guardian could do whatever they wanted with the land, including leasing it, selling it or stealing it.

David Cornsilk: You know, one of the, the saddest situations that I’ve ever seen in the Cherokee Nation was the, the loss of land by Lydia Kingfisher.

Rebecca Nagle: Lydia Kingfisher owned a clothes washing business in the town of Tahlequah. She had two things that made her vulnerable: she was a full-blood and she spoke Cherokee. Either could get her saddled with a guardian. One day, a grafter approached her and said he wanted to protect her from other white people who might steal her land. But Lydia declined his so-called help.

David Cornsilk: And he became so angry that he poured a vat of boiling water into her lap and basically almost burned her to death and she became disabled afterwards. Well, then he sued her in district court and the district court judge made him her guardian, and then he sold her land and the judge purchased her land.

Rebecca Nagle: The judge made her attacker, her guardian so that he ultimately could take her land out from under her.

Rebecca Nagle: Allotment was devastating for all Cherokees, but one group had the least protection: the Cherokee Freedmen. And that’s because of racism, pure and simple: Cherokee Nation’s racism. My tribe enslaved people before the Civil War. It’s the one part of being Cherokee I’m really ashamed of. After slavery ended, those men and women were called Freedmen and they joined my tribe, the same one that had treated them like property.

Marilyn Vann: The United States in the tribe both agreed that these individuals would have all the rights of native Cherokees.

Rebecca Nagle: This is Marilyn Vann, citizen of Cherokee Nation and president of the Descendants of the Freedmen of the Five Civilized Tribes Association.

Marilyn Vann: OK, well, our aims are to fight for the treaty, for enforcement of the treaty rights of the Freedman of the Five Tribes in accordance with the law, and also to educate the public about the rights, the history, the heritage of the Freedmen.

Rebecca Nagle: Over the course of this podcast, you’ve heard a lot of stories of Indians being oppressed, but my tribe is also responsible for the oppression of others. Starting in the early 1800s, we adopted the institution of slavery from the American South. And no, it wasn’t kinder because we were Indians. There’s no kind way to treat another human being like property. After the Civil War, all freed slaves or Freedmen became citizens of the tribe. People usually think of tribes as a racial group, but it’s more accurate to think of us as a political group. Like any other nation, Cherokees have a history of adopting groups of people and making them citizens.

Marilyn Vann: The people at that time, it wasn’t a matter of, there were no degrees of blood, there were no cards that said you’re a half, you’re this or that, you were Creek, you were Cherokee, you were an Osage, you were whatever, just like people or citizens of Mexico, Canada, the United States, Great Britain, whatever. So with the Dawes Commission, they came out to divide the people.

Rebecca Nagle: Freedmen and their children were separated from the tribe, treated differently than everyone else. It happened even though they were all Cherokee citizens and many had mixed Cherokee and Freedmen ancestry. Still, the Freedmen and their descendants were put on a separate roll.

David Cornsilk: One of the best examples I think, of that situation was Emily Weaver. Emily Weaver was half Cherokee and half Black. She appears on the Freedmen section of the Dawes role because her mother was of African descent.

Rebecca Nagle: Basically, people who looked Black, were placed on the Freedmen role and didn’t matter if they were also Cherokee by blood. Marilyn said their reason for this was greed.

Marilyn Vann: Because the plan was to place Freedmen allotments as being unrestricted.

Rebecca Nagle: That meant the land assigned to Freedmen would be easier to take. Allotment was a nightmare for Cherokees like Marilyn’s father. He looks Black, so he was placed on the Freedmen role.

Marilyn Vann: He got eighty acres, which my understanding was considered to be a child’s allotment.

Rebecca Nagle: And like other Cherokee Freedmen, her dad was preyed upon by early land-hungry settlers.

Marilyn Vann: Apparently this Mr. John A. Whittack, or Whatack, was again, he was a wealthy man and he went around Nowata County. He paid, what I’m sure less than the lands was really worth.

Rebecca Nagle: Mr. Whittack bought up several parcels belonging to Freedmen children, including Marilyn’s dad’s land.

Marilyn Vann: I think 70 acres had been sold by my grandfather in 1911.

Rebecca Nagle: But Freedmen lost more than land. A century after the Dawes commission created a separate role for Freedmen, my tribe used that rule as an excuse to deny their descendants citizenship. In response, Marilyn led and won a decades-long legal battle. And as of 2017, Freedmen descendants are once again members of my tribe, which is what we promised to their ancestors.

Marilyn Vann: So, I mean, all nations that have enslaved colonialized people have had to take some responsibility for them. The Cherokee Nation has to do that, just like the United States.

Rebecca Nagle: Allotment came for everyone. It was designed to suck up as much Indian land as possible. It not only divided our land, it divided our people. And it’s a history we’re still recovering from. While the majority of land allotted to John’s family was sold or stolen, they managed to hold on to part of it for over a century. John’s family still has these acres because generations fought to keep them.

John Ross: [Cherokee] This is what they told us. Never sell your land. This is where our ancestors came during the removal, and that’s where we lived all this time.

Rebecca Nagle: John’s family owns what’s called restricted lands. Today, it’s the only part of our reservation that Oklahoma recognizes as Cherokee land. The state doesn’t have criminal jurisdiction here. Landowners don’t pay property taxes. It’s Indian country. But for land to still be restricted, it has to meet an extensive list of criteria. And after 100 years, not much land does. Since allotment, the tribes have lost jurisdiction over land any time one of these things happened: someone sold an acre to a non-Indian, land was taken over by squatters, restriction was lifted to qualify for a mortgage, relatives didn’t fill out the right paperwork to inherit restricted land, or the person inheriting the land had less than half blood quantum. Today, only two percent of Cherokee land is still restricted. And Oklahoma argued that’s all the Indian land left.

David Cornsilk: One of the things that I think is real important in tribal identity is a connection to the land. And once you sell your land, then that connection is severed and there’s really nothing that brings you back to that relationship. The Cherokee Nation, you know, is place. It’s not just a people. It’s a people and a place.

Rebecca Nagle: But allotment didn’t just happen to Cherokees and it didn’t just happen in Oklahoma. Over 100 reservations in the United States went through allotment. During this era, tribe’s lost two thirds of our land base, 90 million acres. But here’s the thing. The other reservations that went through allotment, they all still exist. And that’s because allotment by itself doesn’t terminate a reservation. Despite what Lisa Blatt and the state of Oklahoma said, it takes a specific act of Congress to do that. To be clear, in the early 1900s, Congress wanted to dissolve our reservations. They even tried, but for a surprising reason they couldn’t. Here’s Justice Kagan at oral arguments:

[clip of Justice Elena Kagan] And the Dawes commission goes and it actually tries to get the Indians to cede the land and says, we want cession. Cession is easier. Cession is, is better from the U.S. government’s point of view.

Rebecca Nagle: By cession, Kagan means basically the U.S. asked the tribes to just hand over our land and the tribe said: absolutely not. And here’s the surprising reason why Congress couldn’t make them. On most reservations, the United States technically owns the land itself and Native Americans are just occupants. But when the Ridges signed the Treaty of New Echota, they negotiated for Cherokee Nation to own the land outright. It meant that when the United States wanted our land, they had to negotiate with us. So that’s the wild silver lining in this story. The treaty that branded the Ridges as traitors, generations later protected Cherokee land. Here’s Justice Kagan again:

[clip of Justice Elena Kagan] And so the commission comes back and they say no, we’re not going to get cession, we’re only going to get allotment.

Rebecca Nagle: So what the Five Tribes negotiated was not handing our land over to the U.S. It wasn’t cession, it was allotment. And although allotment divided up our lands, impoverished our citizens and enriched white settlers, it didn’t end our reservations. Thanks to the sacrifices that all our ancestors made to protect our lands, our reservations are still here. And now we’re hoping that the highest court in the land will agree.

Rebecca Nagle: People talk about native land laws as a historical phenomenon in the past tense, but for tribes in Oklahoma it never stopped.

Sheila Byrd: Today, you can come to the people and you can see the results of these failed efforts.

Rebecca Nagle: The initial hemorrhage of land loss occurred and previous centuries, but we’re still bleeding. Sheila Byrd is from Chewy, Oklahoma, and is a citizen of the United Keetoowah Band of Cherokee Indians. One day, Sheila and her family saw something shocking in the newspaper.

Sheila Byrd: My brother called my mom and said [Ocey] name is in the Tahlequah Daily Press for some land down in Oaks.

Rebecca Nagle: [Ocey] Hawkshooter is Sheila’s grandfather. Squatters had moved on to his allotment land.

Sheila Byrd: And it was some ladies out of Tulsa. It was some women.

Rebecca Nagle: And those women put a notice in the newspaper as the law required.

Sheila Byrd: So when it showed up in the newspaper, my brother seen it and just brought it up and we’re like, whoa, what’s going on?

Rebecca Nagle: It was a notice of squatter’s rights. Basically, the people who had taken over Sheila’s family’s land announced they were going to claim it as their own. And a century after it had been allotted to Sheila’s grandfather, like so much other Cherokee land in Oklahoma, it was lost to white theft.

Rebecca Nagle: Do you know how many acres it was?

Sheila Byrd: It was I think it was 160 acres.

Rebecca Nagle: When your family lost the land in the late 90s. Did you guys get any money?

Sheila Byrd: No, absolutely not. We didn’t get anything.

Rebecca Nagle: If the tribes when Carpenter v. Murphy, that victory would not return a single acre of stolen land. All the white people who took our land, whether it was a century ago or ten years ago, would get to keep it. Sheila, John and Marilyn wouldn’t get a single acre back.

Sheila Byrd: Land to come to us is different than what I think the common folk would see. A lot of people view land is property and some people see it maybe even in an economic derivative, maybe? But we see land totally different. There’s a holistic component because it holds our people from the beginning to the end. The allotment was a failed effort because it didn’t really take away from who we were. You can put boundaries all around this, but it’s the spiritual component and that’s when we talk about the land too.

Rebecca Nagle: This land is so much more than real estate. And to protect it and everything that it means to us, we need the Supreme Court to follow the law and its own precedent.

Rebecca Nagle: In an unexpected turn, the U.S. Supreme Court did something quite rare: they decided to wait until next year to make a decision in Carpenter v. Murphy. Not only that, the court also asked for the case to be re-argued. So that means the lawyers on both sides will have to make their case in front of the court, a second time. Basically, this was a no-decision, decision. What it means is Muscogee Creek Nation will have to wait until next year to know whether or not a court will affirm their reservation. And Oklahoma will have to wait to know whether or not their arguments worked. The family of George Jacobs will wait to see if his killer will get a new trial and Patrick Murphy will wait to find out whether he lives or dies.

Rebecca Nagle: Next week, we’re going to bring you an episode unpacking this no-decision decision. We’ll speak to leaders from Muscogee Creek Nation and legal experts who will give us a sense of what happened. Why did the Supreme Court kick the can down the road? Tune in next week to find out next time on This Lands.

Rebecca Nagle: This Land is written and hosted by me, Rebecca Nagle, citizen of Cherokee Nation. From Crooked Media, Mukta Mohan and Tanya Somanader are the executive producers. From Neonhum Media: Gabrielle Lewis is our producer, Katherine Saint Louis is our editor, and Jonathan Hirsch and Vikram Patel are the executive producers. Sound design and mixing by Vanessa Lowe. Natalie Rinn is our researcher. Our theme song is composed by Jarod Tate, citizen of Chickasaw Nation. Additional music from Blue Dot Sessions. Podcast art by Keli Gonzalez, citizen of Cherokee Nation. Additional production support from Fire Thief Productions, including Nathan Young, citizen of Delaware Tribe of Indians and Cherokee Nation. Jeremy Charles, citizen of Cherokee Nation. Shane Brown, citizen of Cherokee Nation, and Melissa Lukenbaugh. And thanks to John Ross, citizen of Cherokee Nation, for translation.