The series of treaties concluded in 1866 with the five principal
tribes in Indian Territory all contained limited concessions of right
of way for railroads through their country to the State of Texas. The
eleventh article of the Cherokee treaty contained a grant of right of
way 200 feet in width to a contemplated railroad through their domain
from north to south and also from east to west. In pursuance of these
treaty concessions, as essentially a part of the same scheme, Congress,
by appropriate legislation,[672] granted public lands and privileges
to the Kansas and Neosho, the southern branch of the Union Pacific,
and the Atlantic and Pacific Railroad Companies, respectively, for
the construction of their roads. The Leavenworth, Lawrence and Fort
Gibson Railroad was also conceded like privileges. The stipulated point
of entering the Indian Territory was in each case the west bank of
Neosho River, where it crosses the Kansas line. As there seemed to be
some question whether more than one line of road would be permitted
to traverse the Territory in each direction a race was inaugurated
between all the north and south lines, each in the effort to outstrip
the other in reaching the prescribed point for entering the Indian
country. The Union Pacific Southern Branch (subsequently known as the
Missouri, Kansas, and Texas) Railway Company, in the fervency of their
desire to reach the line first, omitted the construction of a portion
of their route, and began operations within the limits of the Cherokee
country without having received the previous permission of either the
United States or the Cherokee authorities so to do. To this conduct the
Cherokees made vigorous objection, and appealed to the Secretary of
the Interior. That officer notified[673] the railroad officials that
the Cherokees did not recognize their right to so intrude upon the
Territory, and that no work of the kind referred to could be permitted
therein until the Executive should be satisfied, by evidence submitted
in proper manner, that such entry and occupation were in accordance
with law. Thereupon the officers and attorneys of the several companies
interested appeared and submitted arguments before the Secretary of the
Interior on behalf of their respective interests. The point submitted
for the consideration of the Secretary and for the determination of
the President was, what rights had been given to railroad companies to
construct railroads through the Indian Territory and what railroads, if
any, were entitled to such privileges and right of way.
On the part of the Indians it was claimed that the whole scheme of
treaties and of legislation looked to the construction of but a
single trunk road through the Territory from north to south, and, as
far as the Cherokee Nation was concerned, for the like construction
of but a single road through its territory from east to west. This
interpretation of the treaties and the laws was admitted to be the
correct one by all the companies but the Missouri, Kansas, and Texas.
This company insisted that the meaning of the legislation and of the
treaties was to give the right of way to as many roads as might in any
manner be authorized by Congress to enter the Territory.
The Secretary of the Interior in his opinion[674] expressed an emphatic
concurrence in the interpretation insisted upon by the Cherokee
delegation. He was further of the opinion that neither of the roads had
so far earned a right to enter the Indian country by the construction
of a continuous line of road to the legal point of entrance, but that
as it might soon be necessary to decide which company should first
completely fulfill the conditions of the law, an executive order ought
to be issued declaring that no railroad company should be permitted
to enter the Territory for the purpose of grading or constructing a
railroad until a report should be received from a commission composed
of the superintendents of Indian affairs for the central and southern
superintendencies designating which company had first reached the line.
These views and findings of the Secretary of the Interior were approved
by the President and directed to be carried into effect.[675]
This commission reported[676] that the Union Pacific Railway, southern
branch--otherwise the Missouri, Kansas, and Texas Railway--reached
the northern boundary of the Indian Territory, in the valley of the
Neosho River on the west side, and about one mile therefrom, at noon
on the 6th day of June, 1870, and that at that time there was no other
railroad nearer than 16 miles of that point.
Predicated upon this report, supplemented by the certificate of the
governor of Kansas that it was a first class completed railway up
to that point, permission was given the Missouri, Kansas, and Texas
Railway Company by the President, under certain stipulations and
restrictions as to the methods and character of construction, to
proceed with the work of building a trunk road through the Indian
Territory to a point at or near Preston, in the State of Texas, and the
road was rapidly constructed under this authority.
The Atlantic and Pacific road, having no competitor, experienced no
difficulty in securing the right of construction of its east and west
line through the Cherokee country.