EXECUTIVE MANSION, _July 26, 1888_.
_To the Senate_:
I return without approval Senate bill No. 2644, entitled "An act
granting the right of way to the Fort Smith, Paris and Dardanelle
Railway Company to construct and operate a railroad, telegraph, and
telephone line from Fort Smith, Ark., through the Indian Territory, to
or near Baxter Springs, in the State of Kansas."
This bill grants a right of way 100 feet in width, with the use of
adjoining lands for stations and other purposes, through the eastern
part of that portion of the Indian Territory occupied by the Cherokee
Indians under a treaty with the United States.
By the terms of the treaty concluded between the Government and the
Cherokee Nation in 1866 these Indians expressly granted a right of way
through their lands "to any company or corporation which shall be duly
authorized by Congress to construct a railroad from any point north to
any point south, and from any point east to any point west of, and which
may pass through, the Cherokee Nation."
There are excellent reasons why this clause in the treaty should be
construed as limiting the railroads which should run through these
lands, at least without further permission of the Indians, to only one
from north to south and one other from east to west.
It is evident, however, that the Congress has either not so interpreted
this provision of the treaty or has determined that it should be
disregarded, for there have been six or seven railroads constructed or
authorized through these lands by the permission of the Government.
It has become very much the custom to grant these rights of way through
Indian lands and reservations merely for the asking. They have been
duplicated to such an extent that rival roads are found struggling for
the advantage of a prior Congressional grant or for the possession of a
contested route through these reservations.
I believe these indiscriminate grants to railroads permitting them to
cross the lands occupied by the Indians, if not in absolute violation of
their treaty rights, are dangerous to the success of our Indian
management.
While maintaining their tribal condition they should not be easily
subjected to the disturbance and the irritation of such encroachments.
When they have advanced sufficiently for the allotment of their lands in
severalty, they should be permitted, as a general rule, to enjoy and
cultivate all the land set apart to them, and not discouraged by the
forced surrender of a part of it for railroad purposes. In the solution
of the problem of their civilization by allotments of land they need the
land itself, and not compensation for its appropriation by others. They
can not be expected to understand this process in any other way than an
indication that their tenure is uncertain and the assurance that they
shall hold their allotted land for cultivation a delusion.
It is not necessary in the treatment of this subject to insist that in
no case should a railroad be permitted to cross Indian reservations.
There may be valid public reasons why in some cases this should be
allowed. Important lines of through travel should not be always
obstructed or defeated by a refusal of such permission. But I think
there should be shown in every case a justification in the public
interest or in furtherance of general growth and progress, or at least
in a plain local necessity or convenience, before such grants are made.
It seems to me also that the consent of the Indians for the passage of
railroads through their land should, as a general rule, be required;
that the means of determining the compensation to be made for land taken
should be just and definite and easy of application; that the route of
the proposed road should be as particularly described as is possible;
that a reasonable time should be fixed for the construction of the road,
and in default of such construction that the grant should be declared
null and void without legislation or judicial action, and that in all
cases the rights and interests of the Indians should be carefully
considered.
The bill under consideration grants to the railroad company therein
named the right to construct its road over substantially the same route
described in a law already passed permitting the Kansas City, Fort Scott
and Gulf Railway Company to build its road through this reservation. No
necessity or good reason is apparent why these two roads should be built
upon the same line.
The bill makes no provision for gaining the consent of the Indians
occupying these lands. The Cherokee Nation of Indians have their local
laws and legislation, and are quite competent to pass upon this
question. They have heretofore shown their interest in such subjects, I
am informed, by protesting against some of the grants which have been
made for the construction of railroads through their lands.
The bill provides for the taking of lands held by individual occupants
and the manner of fixing the compensation therefor; but it is declared
that when any portion of the land taken by the company shall cease to be
used for the purposes for which it is taken the same shall revert to the
nation or tribe from which the same shall have been taken. There is no
provision that in any case land taken from individual occupants shall
revert to them.
In the fifth section of the bill it is provided that the railroad
company shall pay to the Secretary of the Interior, for the benefit of
the particular nation or tribe through whose lands its line may be
located, in addition to other compensation, the sum of $50.
It was, of course, intended to declare that this sum should be paid
for every mile of road built through Indian lands, but it is not so
expressed. I am by no means certain that the context will aid this
omission, which is quite palpable, when that part of the bill is
compared with others of the same character. In any event, this is a
provision which should be free from all doubt.
There is no time limited in the bill within which the proposed road
through the reservation shall be completed, and consequently no
forfeiture fixed for noncompletion. The nearest approach to it is found
in a clause providing that the company shall build at least 50 miles of
its road in the Indian Territory within three years from the passage of
the act, or the rights granted shall be forfeited as to that portion
not built. The length of the proposed route through the Cherokee lands
appears to be considerably over 100 miles, and it is plain that there is
no sufficient guaranty in the bill that the entire road will be built
within any particular time. There is no forfeiture and no limitation for
the completion of the road if 50 miles is built within three years, and
there may be some doubt how far the forfeiture would extend in case of
a failure to finish the 50 miles within the time specified.
I believe these grants to railroads should be sparingly made; that
when made they should present better reasons for their necessity and
usefulness than are apparent in this case, and that they should be
guarded and limited by provisions which are not found in the bill
herewith returned.