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Chickasaw-Choctaw Claims Against United States Bolstered by Master’s Thesis

By Richard Green

For August 2007 Times

Scholarly works of history by graduate students usually never amount to much-- except in the scholar’s fevered mind during the university-sponsored baptism of fire that constitutes the development of a thesis or dissertation. Such works normally take one to three years to complete.

The academic requirements for developing such a work are so rigid, narrowly focused and reader unfriendly that the majority of these book-length history manuscripts are never published. Most gather dust on a library shelf at the universities where they were produced. Although they can be checked out, few ever are.

This article, however, is about one twenty-five-year old master’s thesis that was plucked from obscurity last year during legal research for the Chickasaw and Choctaw nations. The thesis has been a crucial source of information in the preparation of the tribes’ joint claims against the United States, alleging failure to account for the management of tribal assets spanning the 19th and 20th centuries.

Governor’s Timberland Concern

After he became governor in 1987, Bill Anoatubby learned that the vast Choctaw-Chickasaw jointly held timberlands in southeastern Oklahoma had been sold in large parcels by the federal government to timber companies. He wasn’t able to determine specifics, but was disturbed by the bits and pieces of information that he knew. He suspected collusion between federal employees and the timber companies likely had occurred.

The records, reflecting the two tribes’ share of the land sales, needed to be reviewed. But they didn’t seem to be readily available, and in the early years of his administration, Anoatubby was more immediately concerned with meeting the needs of tribal government and tribal members with limited financial resources. But, over the ensuing years, the governor periodically mentioned his unease over the timberland sales to members of his staff. Twice he sought legal counsel.

The lawyers told him that the federal government, as the tribes’ trustee, had the authority to do what it did, to sell and set aside the vast timberland area that was jointly owned by the two tribes. Some of land had been transformed by timber companies into large pine tree farms; other than a few scattered plots owned by private individuals, the rest became the Oachita National Forest, which eventually covered two large parts of southeastern Oklahoma and a portion of western Arkansas.

In the summer of 2005, Gov. Anoatubby happened to mention the timberlands to Brian Campbell, CEO of Chickasaw Enterprises. Not being a lawyer or knowing anything about the timberland sales, Campbell just listened. After recounting what he knew, Anoatubby said he felt the tribes didn’t get anywhere near fair market value for the timberlands. Campbell agreed with the governor that the subject needed another look.

With Anoatubby’s consent, Campbell called a lawyer in Tulsa, Jason Aamodt, whom he knew to be experienced in settling tribal claims against the federal government. Deanna Hartley-Kelso, the tribe’s attorney general, knew Aamodt as well, and the three met to discuss the possibility of Aamodt building a case. Since he recently had successfully prosecuted claims by another tribe against the federal government, he knew where sources of information were located and how to obtain them. Aamodt enthusiastically agreed to do preliminary research. Among the many applicable laws, agreements and records that he initially compiled, he found one timberland sale document that got everyone’s attention. “There were spaces for the signatures of the Choctaw chief and Chickasaw governor, but the signature of Governor Douglas Johnston was spelled Johnson,” Aamodt said.

After Aamodt had made a report to Anoatubby, the governor contacted Choctaw Chief Greg Pyle. “The Choctaws have even more at stake than we do,” said Anoatubby, indicating the historic 75 percent (Choctaw) to 25 percent (Chickasaw) split on land held by both tribes. (This ratio originated in the1855 Treaty of Washington.) In the fall of 2005, Aamodt made a presentation to the Chickasaw Legislature and members of the Choctaw Council. Later, Gov.

Anoatubby, Chief Pyle and both sets of tribal lawmakers had agreed to proceed in building a case.

Aamodt continued checking electronic sources and spent time photocopying documents at the National Archives branch in Fort Worth, Texas, and the Oklahoma History Center. But it was at the University of Oklahoma’s Bizzell Library where he discovered his biggest chestnut, a master’s thesis with the interesting title, “The Oachita Timberlands of Southeast Oklahoma: Extinguished Choctaw-Chickasaw Indian Title and Unconstitutional Corporate Real Estate Holdings.” According to the check-out card, the thesis had been on the shelf pretty much since it had been put there in the early 1980s. But to Aamodt, it was serious scholarship, dogged investigative reporting, and contained plenty of information critical to the case.

Evidence of Unlawful Acts by U.S.

The thesis was researched and written by Richard Hayes Phillips. From his home in New York earlier this year, Phillips told me how he had begun the research. In the early 1980s, he and another person bought an acreage in heavily wooded Pushmahata County in Southeastern Oklahoma. As he was reading the property’s abstract, he saw that “on the first page, the property owners were the Choctaw and Chickasaw nations, holding the land in fee simple and in perpetuity,” Phillips says. “Then on the next page the federal government is selling the land to some speculators.

Obviously, some of the documentation was missing.”

As he was researching the land records and applicable federal laws, Phillips met, and was greatly inspired by, the renowned Oklahoma historian Angie Debo, whose 1933 dissertation became The Rise and Fall of the Choctaw Nation.

Debo told him she was pleased that he was pursuing this investigation. She said she had not done the timberland sales justice in her second book, the classic, And Still the Waters Run. That book tells the tragic story of the liquidation of the domains of the Five Civilized Tribes after their political and economic status had been guaranteed by United States treaties and land patents.

Phillips learned that the basis of the dissolution of the Indian nations was the land allotment system. For the Chickasaws and Choctaws, this was provided for in the 1898 Curtis Act and the 1902 Supplementary Agreement, both signed and ratified by the U.S. and both Indian nations. The allotment process was overseen by the Dawes Commission, functioning under the U.S. Department of Interior. The Commission removed townsites and mineral lands from individual allotments.

By law, timberlands were not reserved from allotment, Phillips discovered, and the landowner could sell the timber on his or her land. Congress made an exception by reserving three land parcels of about 25,500 acres of timberland from allotment. Even so, Congress specified that unallotted mineral land and timberland could not be sold by the Secretary of the Interior.

Yet, in violation of the Congressional acts, the Dawes Commission on April 3, 1903, withheld timberland from allotment and sought new legislation providing for the sale of pine timber to speculators. The Choctaw Council, Phillips wrote, “indignantly rejected the federal withdrawal,” asserting that many full bloods were living in the pine regions and would lose their farms and homes. Congress, once again, did the right thing by refusing to legislate the sale of the pine timber.

But Interior leaders, Phillips wrote, bided their time. In early December 1906, Secretary Ethan Allen Hitchcock, in consultation with the Secretary of Agriculture and two forestry officials, suspended the approval of timberland allotments so that Congress could consider establishing a national forest. Almost immediately, a U.S. Senate committee, holding hearings, called the four government officials and told them in no uncertain terms that federal law permitted the creation of national forest reserves from public lands, not Indian lands. Furthermore, lacking authorization from Congress, the Interior secretary had no authority to suspend an agreement between sovereign nations, meaning the U.S. and Choctaw and Chickasaw nations.

In response, Hitchcock didn’t withdraw the order, but reduced the area for the proposed forest reserve. But as Phillips wrote, a “lawless order narrowed in scope remains a lawless order.” The reduction brought the total of unallotted jointly held Choctaw-Chickasaw lands to approximately 1.3 million acres. That amounted to almost 20 percent of the entire Choctaw Nation. Nonetheless, this timberland was illegally withheld from allotment by Hitchcock on January 12, 1907.

Phillips wrote, the fact that Hitchcock consulted other government officials about how much timberland to withdraw from allotment after being made aware by the Senate committee that to do so was illegal “is prima facie evidence [if uncontested, establishes a fact] of conspiracy and contempt of Congress.”

When the allotment process was completed in 1912, the administration of President William H. Taft decided to sell the unallotted timberlands in large tracts. Some 24 tracts of more than 1.2 million acres were to be sold at once with virtually no restrictions, including a requirement for competitive bidding. Phillips found that “no one tract received more than one bid, each being slightly above the minimum price provided in the regulations. The lumber interests had gotten together and parceled out the tracts and each [company] bid on different tracts.” Fortunately, when this news was made public, a public outcry forced the Interior department to reject the bids.

Nothing if not dogged in their determination to sell the timberlands, the leaders of the Interior department under President Woodrow Wilson made another attempt despite the fact that the action was still illegal. To facilitate the process, Interior appraised each section of unallotted timberlands and again virtually no restrictions were placed on buyers.

Interior did face one obstacle: it couldn’t execute land patents to white businessmen for lands held in fee simple by Indians. So instead of a patent, the buyer was issued an “unallotted land deed.” Nearly all of these that Phillips examined were copies, containing no signatures or seals. He wanted to know if the originals had signatures. He couldn’t find many photostatic copies of the originals due to a lack of photostatic equipment at the time. But after examining fourteen photostatic copies of the originals from McCurtain County, Phillips found twelve with rubber-stamped signatures and two with handwritten signatures; one of those contained signatures that “appear in the same handwriting.”

Phillips explained that while the timberlands were supposedly withdrawn by the Interior department from allotment for creating a national forest reserve, that didn’t happen until the pines on the land (59,000 acres) first had been clearcut by a timber company. Then the company sold the denuded land to the federal government in 1931 as the first purchase of a national forest in eastern Oklahoma. “Even as the federal government was buying back the cutover lands in the Ouachitas, the Department of Interior was still selling unallotted Choctaw [and Chickasaw] timber lands to the lumber companies,” Phillips wrote.

Phillips’ Alert

This article represents only some of the information uncovered by Phillips. He presented a report based on his research to the Choctaw Tribal Council in April 1982. The council unanimously passed a resolution to pursue a claim to regain alleged Choctaw properties unallotted contrary to federal law.

Afterwards, the University of Oklahoma graduate college notified Phillips that if he made any more presentations on his thesis before it was defended, he would not receive his master’s degree. Why was Phillips threatened? “Evidently, someone’s ox would be gored, but I don’t have specific evidence,” he told me. He added that this action by OU was reminiscent of the university refusing to publish Angie Debo’s And Still the Water Runs in the late 1930s because it gave an unflattering view of the involvement of state officials in the theft of Indian lands.

Meanwhile, Phillips learned that Choctaw Chief Hollis Roberts instructed the tribal attorney not to pursue the case and that is where it stood, in a state of suspended animation, until 2005 when attorney Jason Aamodt found and photocopied Phillips’ 185- page thesis. Appended to the thesis is a crucially important transcript of the 1906 Senate committee hearings during which Secretary Hitchcock was told by members that Congress had not authorized him to sell tribally owned timberlands.

Although many parcels of the timberland had changed hands during the 20th century, the law had not changed nor had the intent of Congress, according to Aamodt.

One Thing Leads to Another

During Aamodt’s research, it wasn’t long before he realized that the federal government apparently had not provided to the tribes adequate accounting of many other tribal assets, such as the lands that contained large deposits of coal and asphalt. Given that realization, the tribes couldn’t make a reasonable claim without first having the government’s accounting. Still to beat an impending federal deadline on filing lawsuits against the government, Aamodt, on behalf of both tribes, filed a lawsuit in late December 2005 in a federal district court for western Oklahoma.

But rather than begin the litigation, which could take many years and be very costly financially, the tribes agreed to try to resolve differences amicably by requesting that the judge stay the proceedings so that they and federal government could enter into mediation. Then, the tribes requested from the federal government an inventory of all pertinent financial information associated with tribal assets, said Hartley-Kelso. When the inventory is received, the tribes can target their requests more precisely, she added.

Recently, all parties—the Chickasaw and Choctaw nations and the U.S. selected a mutually satisfactory mediator. The tribe’s attorney general said the mediation will begin this fall after all of the requested records have been received by the tribes.

Each party will present its side to the mediator, Aamodt said. “As long as progress is being made, the mediator will allow the process to continue. The mediator is supposed to facilitate compromise and problem-solving, not decide right or wrong.”

Hartley-Kelso: “We’ll be saying, we think this is what happened. Do you have any information to the contrary? If you don’t, this is what we believe our damages should be.”

Gov. Anoatubby: “There’s no guarantee that we will recover anything. But we think we are preparing a very strong case.

We’ll have a better feel for it once we enter into the mediation. We’re looking forward to the process.”