Indian Territory and the United States: 1866-1906, Courts, Government, and the Movement for Oklahoma Statehood.

• Author: Lee, Yuanchung

Indian Territory and the United States, 1866-1906: Courts, Government, and the Movement for Oklahoma Statehood. By Jeffrey Burton.(*) Norman, Oklahoma: University of Oklahoma Press, 1995. Pp. xix, 314. $28.95.

I

The last thirty years of the nineteenth century were, in the words of one historian, "the most critical period in the whole history of Indian-white relations in the United States."(1) During this time, the paradigm of federal Indian policy gradually shifted from one of exclusion and separation--embodied by the forced removal of tribes and their sequestration on isolated reservations(2)--to one of assimilation and coerced inclusion--best symbolized by the General Allotment Act of 1887,(3) which authorized the President to terminate tribal existence by allotting communally owned property to individual members. The so-called "Indian Territory," which consisted of more than 60,000 square miles (in what is now the state of Oklahoma) designated for the perpetual and exclusive use of several southeastern tribes,(4) was not spared from this general trend. During this period, it was transformed from a land populated by sovereign tribes into a territory, and then a state, of the United States.

Some claim that land greed and the demands of a rapidly growing industrial civilization were the forces behind this transformation.(5) Others have emphasized the role played by well-intentioned humanitarian desires to "civilize" and Christianize the Indians.(6) Jeffrey Burton Indian Territory and the United States, 1866-1906 contributes a refreshing perspective to this debate. Focusing on the role played by the strategy of federal court reform in the destruction of tribal governments (pp. xii, 21, 25), he concludes instead that the real culprit behind the assimilationist revolution in Indian Territory was the federal government, "acting not for homestead or commercial interests but for itself as a political organism" (p. xii). Expansionism, pure and simple, was the controlling ideology of the paradigm shift (pp. xiii, 122).

Although insightful in his analysis of the growth and operation of federal courts in Indian Territory, Burton fails on two crucial grounds. First, his focus on court reform comes at the cost of neglecting other "strategies" used by the United States in this drama--most notably Supreme Court decisions recasting the sovereign status of Indian tribes and awarding Congress plenary power over Indian affairs. Second, Burton's expansionist thesis falls short: The evidence shows instead a thoroughly heterogeneous cauldron of causes. In the final analysis, Burton's greatest error is his acceptance of the oft-held assumption that "anti-Indian" sentiments--whether capitalist, expansionist, or even racist--were responsible for the paradigm shift in Indian policy. A comprehensive story must include the good-hearted Christian desire to free the individual Indian from the bonds of primitive communalism and transform him into a property-owning, freely contracting American citizen.(7)

II

Burton's discussion of federal courts in Indian Territory begins with an account of their legal origin in the treaties the United States and the Five Tribes entered into in the aftermath of the Civil War. Considered "defeated rebel regime[s]" (p. 15) because of their alliance with the Confederacy, the tribes were coerced into several crucial concessions (pp. 15-19). The 1866 treaties included not only provisions for land cessions, for instance, but also a "subtler, but far deadlier ... menace": permission for the United States to create federal courts in Indian Territory (p. 20). These court provisions would eventually be used "to dislocate and disarm the tribal governments" (p. 21).

This potential breach in the wall of tribal sovereignty,(8) however, was not immediately exploited because it was too subtle an instrument for those in Congress concerned with the status of Indian Territory. From the signing of the treaties until the abolition of tribal courts in 1898, congressional radicals--especially those in the House--repeatedly sought a one-strike solution...