When the Boomers met the Sooners

Two million acres west of the Mississippi.

Land that had been promised to Native Americans “…as long as grass grows or water runs…”1

Land that — 130 years ago today — was opened for settlement as part of the public lands of the United States.

Land that was part of the one of the biggest public land rushes in American history.

Land in what was then Indian territory — and in less than two decades would be the heart of the state of Oklahoma.2

Oklahoma land openings

Many genealogists — The Legal Genealogist included3 — have families who participated in that or one of the later land openings in Oklahoma. So we diligently research the land records documenting the acquisition of those lands to tell the stories of our families.

But those stories are not complete until we have looked not just at the land records but at the legal records of those land openings too.

To understand the land rush of 22 April 1889, we need to understand first the designation of those two million acres as “unassigned lands.” Originally allocated to the Five Civilized Tribes by treaties in the 1820s and 1830s, the land was ceded by some tribes to the United States at the end of the Civil War in treaties essentially designed to punish them for their support of the Confederacy.4

By 1879, a strong movement began to open the ceded lands to settlement, in response to which President Rutherford B. Hayes declare the land off-limits to settlement and forbade trespass:

…it has become known to me that certain evil disposed persons have within the territory and jurisdiction of the United States, begun and set on foot preparations for an organized and forcible possession of, and settlement upon the lands of what is known as the Indian Territory, west of the State of Arkansas, which Territory is designated, recognized and described by the treaties and laws of the United States, and by the Executive Authorities, as Indian Country and as such, is only subject to occupation by Indian tribes, officers of the Indian Department, military posts and such persons as may be privileged to reside and trade therein under the intercourse laws of the United States. …

 

I, Rutherford B. Hayes, President of the United States, do admonish and warn all such persons so intending or preparing to remove upon said lands or into said Territory, without permission of the proper agent of the Indian Department, against any attempt to so remove or settle upon any of the Lands of said Territory, and I do further warn and notify any and all such persons who may so offend, that they will be speedily and immediately removed therefrom by the agent according to the laws made and provided; and if necessary the aid and assistance of the military forces of the United States will be invoked to carry into proper execution the laws of the United States…5

But the force of Western settlement was too powerful to be resisted. By March 1889, quiet language had been slipped into an appropriations bill authorizing the President to formally conclude the complete cession of the lands to the United States and their opening to settlement. It made the opening subject to the Homestead Act and provided expressly that “until said lands are opened for settlement by proclamation of the President, no person shall be permitted to enter upon and occupy the same, and no person violating this provision shall ever be permitted to enter any of said lands or acquire any right thereto.”6

That was followed, on 23 March 1889, by a proclamation from President Benjamin Harrison opening the territory to settlement at noon on 22 April 1889 but reminding potential claimants that: “no person entering upon and occupying said lands before said hour of twelve o’clock, noon, of the twenty-second day of April, A. D. eighteen hundred and eighty-nine, hereinbefore fixed, will ever be permitted to enter any of said lands or acquire any rights thereto…”7

So the legal history doesn’t end when the cannons and pistols fired or the bugles sounded on the 22nd of April 1889 and somewhere between 50,000 and 100,00 claimants, poised around the 300-mile perimeter of the lands, began their rush to try to acquire one of only about 12,000 quarter-sections opened to settlement.8

Because — as might be expected — the warnings to stay off the land until it opened for the land rush 130 years ago today weren’t heeded. In too many cases, the Boomers — those who waited for the boom of the cannon — got to choice pieces of land and found them occupied by the Sooners — those who’d jumped the gun and began their land-claim efforts well before it was allowed.

And many of those cases ended up being contested.

That’s why it’s not enough just to get the land records.

Because the land records don’t tell the full story. They won’t tell us, for example, about Alexander F. Smith, an employee of one of the railroads that crossed Indian Territory at that time, who came to what became Edmond, Oklahoma, in January 1889, bringing his family with him. They won’t tell us how he camped out in the right-of-way of the rail line until 22 April, 1889, and how, “soon after the hour of noon on April 22, 1889, went upon the land in controversy and settled upon it as his homestead.”9 Or that he and all other railroad employees had been warned, by the railroad, “that if they expected to take land, they must leave the Oklahoma country” before the land rush began.10

And they won’t tell us that another man — Eddie B. Townsend — who’d properly waited at the edge of the territory for the run to begin, had filed a claim asserting that Smith was an illegal homesteader. Or that the local land officers originally decided the case for Smith, and that Townsend had appealed to the United States General Land Office which overturned the decision and ruled in Townsend’s favor. That decision was upheld by the Secretary of the Interior in March 1891.11

The land records alone won’t disclose that Smith sued to overturn that ruling and to have the title transferred back to him. His complaint was originally dismissed, and Smith appealed to the Supreme Court of the Territory. In 1892, that Court upheld the dismissal of Smith’s claim.12

And the land records alone won’t tell us that Smith took his case all the way to the United States Supreme Court. He tried to argue that he wasn’t subject to the rule barring “entering upon and occupying said lands” because the railroad right-of-way wasn’t part of “said lands.” The Supreme Court didn’t buy it: it regarded the land “as an entirety, with certain metes and bounds, and it is that body of lands, thus bounded, which all parties were forbidden to enter upon who desired thereafter to enter any portion as a homestead. … The evident intent of Congress was … to put a wall around this entire Territory, and disqualify from the right to acquire, under the homestead laws, any tract within its limits, every one who was not outside of that wall on April 22. When the hour came the wall was thrown down, and it was a race between all outside for the various tracts they might desire to take to themselves as homesteads.”13

The Court also wasn’t impressed by the argument that Smith — along with others such as Indian agents, deputy marshals and mail carriers — had been legally within the territory on that day and so shouldn’t be subject to the rule. It rejected the argument that they should have “special advantage in the entry of tracts they desired for occupancy” noting that, if that had been Congress’ intent in passing the law, “it would have been very easy to have said so.”14

And this is just one of the cases brought in the wake of that 1889 land rush. In claims brought before the Secretary of Interior to challenge a homestead and in court cases like the Smith case, time after time, the issues of early arrival were litigated.

So if we are to tell the full story of our families in Oklahoma history, we can’t just stop when we find the land records.

We need the legal history of the land claims too.


Cite/link to this post: Judy G. Russell, “The land rush,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 22 Apr 2019).

SOURCES

Image: From “Oklahoma Land Openings,” Oklahoma Historical Society (https://www.okhistory.org/ : accessed 22 Apr 2019).

  1. Letter, Andrew Jackson to David W. Haley, 15 October 1829, in The Papers of Andrew Jackson, 10 vols. (Knoxville: University of Tennessee Press, 2007), VII: 494.
  2. See Robert Barr Smith, “When the Bugle Sounded: Stampede for Oklahoma’s Unassigned Lands,” HistoryNet.com, posted 12 June 2006 (https://www.historynet.com/ : accessed 22 Apr 2019), originally published in Wild West Magazine, February 1999.
  3. My great grandfather was a successful bidder in the opening of the Big Pasture in 1906. See Judy G. Russell, “Homesteading a cash sale,” The Legal Genealogist, posted 29 May 2012 (https://www.legalgenealogist.com/blog : accessed 22 Apr 2019).
  4. See generally Wikipedia (https://www.wikipedia.com), “Unassigned Lands,” rev. 21 Apr 2019.
  5. Proclamation No. 1, Rutherford B. Hayes, 21 Stat. 797 (26 April 1879).
  6. §§13-15, “An act making appropriations for the current and contingent expenses of the Indian Department, and for fulfilling treaty stipulations with various Indian tribes, for the year ending June thirtieth, eighteen hundred and ninety, and for other purposes,” 25 Stat. 980, 1005-1006 (2 March 1889).
  7. Proclamation No. 2, Benjamin Harrison, 26 Stat. 1544, 1546 (23 March 1889).
  8. See Smith, “When the Bugle Sounded: Stampede for Oklahoma’s Unassigned Lands.”
  9. Smith v. Townsend, 148 U.S. 490, 491 (1893).
  10. Ibid., at 492.
  11. See Dianna Everett, “Smith v. Townsend (1893),” Encyclopedia of Oklahoma History and Culture (https://www.okhistory.org/publications/enc/ : accessed 22 Apr 2019).
  12. Smith v. Townsend, 148 U.S. at 492-493.
  13. Ibid., at 499-500.
  14. Ibid., at 501.
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