The Buffalo Commercial Buffalo, New York 15 Nov 1865, Wed • Page 3

This is the second piece in our “Freedmen Bills You’ve Never Heard Of” series. Despite its tenuous link to the series’s concept, this collection of documents made the cut for two reasons–Sanborn’s suggestions for a treaty and reservation system, and its relationship to the ratification of the Treaty of 1866.

Most entries within this series shall concentrate on bills and legislation proposed after the Treaty was passed. Many of these bills focused on the attempts to allow Freedmen of mixed afro-indigenous heritage access to the Blood Rolls.

John Sanborn’s papers and reports are far different than the attempts of Senators McGuire, Dick, and others to expand the definition of tribal membership to include lineal descendants of afro-indigenous heritage. Due to the difference in time period–McGuire’s proposed action would occur half a century after Sanborn’s reports were written–Sanborn’s words and thoughts hold a distinctly different tone from those that would come after him.

McGuire and his peers were attempting to undo as much damage as possible and, where it was impossible to do so, to lessen the harm rendered. Sanborn’s work on the behalf of the Freedmen was so early into a post-chattel slavery world that many of the concepts being discussed in future legislation were not yet being evaluated. Additionally, the laws being set out were, at this time, being written by former slave owners whose interests lay in crafting legislation that would keep formerly enslaved people in a place of economic and political disadvantage.

A common theme running throughout all the pieces within this series, both current and future, is the existence of an attempt to examine and quantify the legal status of the Freedmen. To truly examine the existence of these bills is to study more than just the event itself–it is to put the documents into the context of reconstruction, adoption, allotment, and onwards.


The Letter

It begins, as many things do, with a letter.

The letter is short but grand in its implications–“I have instructed the agents to issue rations to them [the freedmen],” the letter writes, “the same as the Indians.

The year is 1865, Elijah Sells has only been in charge of Indian Affairs in the Southern Superintendency for a few months when he drafts the letter to his superior, D.N. Cooley, detailing the financial destitution affecting the Freedmen living in Indian Territory. Sells has been an abolitionist and activist since the 1840s and feels acutely for the plight of those formerly held in bondage in his assigned Nations. It was one of the things that saw him appointed to his position–that and his personal friendship with the Secretary of the Interior, James Harlan.

He expounds on his worries about the legal status of the Freedmen, unsure of the official stance that the Office of Indian Affairs (later known as the Bureau of Indian Affairs) will take. He writes “if they are to be recognized as Indians, then, I recommend that some provisions be made to aid them to return to their former homes.

Elijah Sells; State Historical Society of Iowa, The Annals of Iowa, Volume 2, Number 7 (1896), pps 519

Similar to Sells, Cooley has only recently become the Commissioner to Indian Affairs and will not continue his position for very much longer. He reviews the letter and forwards it to James Harlan, a mutual friend of the pair. Together the three will sign the many treaties that will be negotiated and ratified in a year’s time.

Harlan writes in a reply to Cooley that there shall be no difference in those “who were held in bondage and those who were free. That, in all cases they should receive the same annuities, lands and educational advantages.

In a single letter, Harlan has outlined the official stance of the Department of the Interior and ordered that the Office of Indian Affairs follow suit. This will become the thesis for the provisions later laid out in the Treaty of 1866–the agreement that henceforth the institution of chattel slavery and involuntary servitude shall not be allowed, and that all Freedpersons living in the Territory, regardless of former legal status, will be treated with the respect and privileges allowed to all tribal members.

Within a few days of Harlan sending his orders to Cooley, he makes the decision to dispatch John Sanborn, a long time friend, into Indian Territory to assess and report on the condition of the Freedmen.

“In cases where the feeling existing between the parties is amicable and the relations satisfactory to both, and the rights of the Freedmen are fully acknowledged, you will not interfere or disturb those relations, but in all cases where the rights of the Freedmen, as such, are denied by the Indians or where abuses exist or wrongs are perpetrated upon the Freedmen you will at once interfere and afford such relief as may be within your power.” 

John Sanborn, Brevet Major General, Circular No. 1, January 1, 1866, 357, Roll 837, M234

Further in the letter, Harlan appeals to Sanborn, calling him the “protector of the rights of the Freedmen” and orders him as follows:

“You will impress upon the Indians the justice of admitting the Freedmen to the enjoyment of all the rights of persons and property without reference to their former condition, and to an equal enjoyment of the bounty that may hereafter be bestowed by the National Government, and that it would be especially gratifying to the Government if these Freedmen should be admitted to an equal enjoyment of civil rights. With this in view you will explain to them that in this manner the Indians will rapidly augment their numbers and power—that they would thus be only following the example of the white people of the U.S. who have, from the beginning, admitted to the rights of citizenship white people of all countries of the world, when there has appeared to exist no natural antagonism; that as a result of this policy the whites have grown so numerous and strong as to render it difficult for the President to prevent them from crushing out the Indian race and that many of the States, including the richest and wisest, make no distinction in this respect on account of color.” 

John Sanborn, Brevet Major General, Circular No. 1, January 1, 1866, 359-59, Roll 837, M234
John Benjamin Sanborn Wearing His Major General’s Uniform; Massachusetts Commandery of MOLLUS

The wording “an equal enjoyment of civil rights” confirms that Harlan had not just the desire, but the expectation that the Nations could be persuaded to adopt the Freedmen into their tribe as citizens. In many ways, Sanborn would expand the scope of his obligations, but ultimately would not fulfill the expectations outlined by Harlan and would, tragically, fall short of the title bestowed upon him as the “protector of the rights of the Freedmen.

The Reports

In December of 1865, Sanborn left for Indian Territory with a single officer and clerk.

Chicago Tribune Chicago, Illinois 13 Dec 1865, Wed • Page 2

The general attitude in the North was that former Union soldiers would be safer in Indian Territory than in the South. The reality, however, was much to the contrary.

Murders of whites and blacks are an every-day occurrence” the Lawrence Tribune reports on February 8, 1866, “and Union men dare not show their true sentiments. The slave code is yet in full blast in the Choctaw and Chickasaw Country, and the supreme law of the land, proclaiming the freedom of every human being, is ignored and derided.”

Though the Choctaw Nation had formally surrendered to the Union in June of 1865, the Civil War was still in full swing–though not with the same trappings of armies and active battlefields–and with it the last grasping vestiges of chattel slavery within the United States and its associated territories.

The Fort Smith Council first convened in September of 1865 to discuss various issues, chief among them the negotiation of new tribal treaties between the Nations who had signed agreements with the Confederates–which included the Choctaws and Chickasaws–and the United States. During the council, the gathered tribes were notified that the renegotiated treaties would have required stipulations–including provisions that would make slavery and/or involuntary servitude illegal, except in punishment of crime.

Despite this, chattel slavery was still present within Choctaw Nation, evidenced by the Lawrence Tribune article from February of 1866.

Shortly before he [John Sanborn] reached Boggy Depot […] some twelve colored men were sold at public auction; but the individual who caused this disgraceful sale, when General Sanborn arrived at Boggy Depot, had got out of the way, and men who had been sold were enjoying their freedom unmolested.

The Lawrence Tribune Lawrence, Kansas 08 Feb 1866, Thu • Page 2

Prior to visiting the Choctaw and Chickasaws, Sanborn wrote his first official report to the Commissioner, bolstered by interviews and information given to him by those living and working in the Territory.

He writes, “Choctaw Nation is divided in sentiment, but the preponderance of sentiment is strongly against the freedmen, and a violent prejudice exists against them in that nation, which time alone will overcome. The public men and council acknowledge a change in the relations of the former masters and slaves, while a large portion of the people do not admit any change in these relations, and their action and treatment towards them is much the same as formerly.

One freedmen has been killed at Boggy Depot by his former master,” he continues in his report, “and [there] are rumors of several other cases, and no action has yet been taken by the government to punish the party guilty.

In reference to the Chickasaw Nation, Sanborn had the following to say:

“The Chickasaw nation is still holding most of their negroes in slavery, and enterain a bitter prejudice against them all. They have provided by law for the gradual emancipation of their slaves, and exclude all from the nation who left it during the war. In other words, all negroes who left the country and joined the federal army are prohibited from returning. This is also true in the Choctaw Nation. It is reported to me by the chief, Lewis Johnson, that Governor Colbert stated to many people, and publicly, before leaving for Washington, that they should hold the slaves until they could detirmine at Washington whether or not they could get pay for them, and if they could not they would strip them naked and drive them south to Texas, or north to Fort Gibson. So bitter is the feeling against the return of the negroes that have been in the federal army, that Major Coleman and myself have concluded that it is not safe or advisable for Lewis Johnson and party to return until troops are stationed at Arbuckle.

Many negros have been shot down by their masters in this nation, and the government has taken not steps to punish the guilty.”

United States. Office of Indian Affairs Annual report of the Commissioner of Indian Affairs, for the year of 1866

Further on in this report, we are introduced to Sanborn’s desire and willingness to request that the Choctaw and Chickasaw Nations be placed under martial law, a recurring theme that will be present in his future reports. He also starts to craft his proposed concept for a reservation for the use and betterment of the Freedmen. These concepts would evolve into a more concrete outline, which is included later in this article.

It appears that Sanborn was wary of sending such a letter until he had visited Choctaw and Chickasaw Nation, because he held the letter for an additional three days, by which time he had entered Choctaw Nation and was unpleasantly proven correct. 

In a short letter he attached to his report before mailing the document, he states:

“The Freedmen can exercise no rights in the Choctaw and Chickasaw Nations. The fresh skull of a negro is now hanging on a tree on the Boggy Depot and within sixty-five miles of this place, with a bullet hole through it. There is but one remedy for the present evils, and that is in a military force stationed in the country. A woman has been whipped nearly to death within the last month.”

Bureau of Refugees, Freedmen and Abandoned Lands, 1865 – 1869 National Archives Microfilm Publication M979 Roll 52 “Miscellaneous Records 1865 – 1868”

Twelve days after his initial report, Sanborn expands on his thoughts for a solution to the plight of the Freedmen. He starts by explaining that there is still “much that is wrong and cruel” and that it is the “result of bad and improper laws of these nations–a slave code, which is considered by them as still in force, and executed upon all blacks accordingly.”

This is where we are introduced to another tenant of Sanborn’s work: the infantilizing of indigenous tribes as being simply misled by laws in place–the concept that “a treaty embodying correct principles will be the most speedy and sure correction of this evil.” A common thought–the same way that Chicago newspapers thought Indian Territory safer, Sanborn thought the Native tribes too simple to have been active participants in not just Chattel Slavery but also in the violent opposition of its abolition.

Sanborn continues, explaining the plight of Freedwomen living in the territory.

“A more thorough knowledge of the condition of the freedmen of the territory induces me to recommend that provisions be made by law for each single freedwoman, who has one or more children living with her, to enter one hundred and sixty acres of land in the reservation set apart for freedmen.

There is a very large number of young women who have from one to eight children, born while they were slaves, and who have not and never have had any husbands. Many of the children are mixed bloods, and, with a home, may become quite valuable citizens.”

United States. Office of Indian Affairs Annual report of the Commissioner of Indian Affairs, for the year of 1866

In his plan for resolution, Sanborn makes sure to mention his desire to see them and their children provided for. This cause would later be picked up by progressives half a century later, but would ultimately fail to see fruition. Descendants are still fighting for those rights today.

“I recommend that four sections in every township of the reservations set apart for freedmen be set apart for the use of schools, the same to remain under the control of Congress.

My own conclusions as to the action of Congress required to accomplish the greatest good for the freedmen, Indians, and all parties interested in the territory, are as follows:

1. That a territorial government should be erected.

2. That each of the Indian tribes, or affiliated tribes, should be located on some limited reservations, and the country sectionized, and each Indian allowed to enter some legal subdivision of the land, say eighty acres, and hold the same without power of alienation, and each Indian be paid for any improvements made by him on land that he might be compelled to surrender, for the reason that it was not included in the proper reservation.

3. That proper reservations should be set off for the freedmen of the respective tribes and sectionized, and each male over twenty-one years of age, and each single woman who should have one or more children living with her, be allowed to enter one hundred and sixty acres of the same as a homestead, and that partiers entering said land should have no power to alienate the same at any time, and that the same shall descend to their heirs.

4. That a large tract be retained by the government for reservation for such tribes of Indians as may be moved into the territory from time to time.

5. That liberal grants of land, in alternative sections, be made to railroad companies to build a road through the territory north and south and east and west, and that the alternate sections retained be sold by the government, at two dollars and fifty cents per acre, to any party who shall have settled and made his home upon the same for two years, without regard to his color or race, and the proceeds, after deducting all expenses of survey, sale, &c., be applied to school and charitable purposes with the Indian tribes.

6. That any land remaining undisposed of should be subject to settlement and entry by any class of people under the present acts of Congress.”

United States. Office of Indian Affairs Annual report of the Commissioner of Indian Affairs, for the year of 1866

Notably, most of his desires for the Territory did come true–but not, necessarily, the way he had envisioned them. The land was sectionized and given to the Native Americans and Freedmen, railroads did come to the Territory and undisposed land was later settled, but this would happen decades in the future. It would not be, as Sanborn envisioned it, advantageous or sustainable to those living in the Territory.

During the months between this document and his final report in April, Choctaw Nation began its move away from the slave system into a wage system. This new system of employment legally required that all formerly enslaved persons enter into written wage agreements with employers (often their former enslavers) before a county judge under threat of being classified as a criminal vagrant. If you were found to be guilty of vagrancy, your rights under the treaty stipulations (which were still being negotiated) were null and void–as the temporary stipulations outlined during the Fort Smith Council made the exception for involuntary servitude in cases of criminal punishment. Vagrants would be arrested by the sheriff or lighthorsemen, and their services sold to the highest bidder. They would be legally compelled to work for the bidder and any money earned would be taken by the Nation and placed into a special fund for any Freedperson in need of financial assistance. There is no historical evidence that I have been able to uncover that proves that any money earned from this post-emancipation slavery was used to support the Freedmen.

This move to wage based labor and restrictive laws criminalizing the act of being unemployed and black led to a rise in crime, and with it the rise of the Vigilance Committee.

The Vigilance Committee was the Choctaw version of the Ku Klux Klan–they were small groups spread across each county that were connected by a series of mounted couriers that delivered news and illicit plans between them. There are no existing records of its membership, but it is likely that they enjoyed–if not the direct membership–the tacit approval of many of those in tribal leadership, as no formal attempts at stopping them were ever taken. They were considered to be the unofficial “police force” of the Nation, whose main job was to patrol for vagrants and other criminals, and to disband “disorderly” freedmen settlements.

Sanborn apparently did not see this rise in vigilante and racist violence to be concerning, because in April of 1866 he wrote his final report.

“I have the honor to report that the existing relations between the freedmen of the Indian Territory and their former masters are generally satisfactory.

The rights of the freedmen are acknowledged by all; fair compensation for labor is paid; a fair proportion of crops to be raised on the old plantations is allowed; labor for freedmen to perform is abundant, and nearly all are self-supporting.

Only one hundred and fifty have applied for assistance this month, and I think the number will be much reduced next month.

Much of the assistance rendered is to freedmen that have been taken south by their masters, and who are now returning to their old homes.

Under these circumstances there seems to be little reason for continuing this commission beyond the tenth of next month, unless it should be to correct the few abuses that may arise, and exercise a general supervision over these matters in the territory, and this will probably be more necessary about the time of the maturity of the crops than during the summary months while they are growing.

The necessity or advantage of continuing the commission also depends very much upon the conditions of the treaties about to be concluded at Washington, and the laws passing in pursuance thereof. But it seems that the Indian agents, under proper instruction, could well attend to and perform all those duties that now, or in any event after the tenth of next month will, pertain to this commission.

I therefore respectfully request that you will either grant me a leave of absence of forty days, to take effect from the tenth of next month, and there wait further orders.”

United States. Office of Indian Affairs Annual report of the Commissioner of Indian Affairs, for the year of 1866

After John Sanborn’s last report where he requested to be removed from his post, the commission was dissolved. This left the final status of the Freedmen living within Choctaw and Chickasaw Nation to be determined by the treaty stipulations which, by this time, had been negotiated.


The Downward March

Three months later on July 10, 1866, the treaty between the United States and the Choctaw/Chickasaw Nations was finalized and signed, and with it the legal status of the Freedmen became even more complicated.

The treaty provided the Choctaw and Chickasaw Nations two options when dealing with the Freedmen. They could adopt their Freedmen as legal citizens and would be given $300,000 for the leased district, or they could have the Freedmen removed by the United States, in which case the Freedmen would be given the leased district money.

The treaty stipulated that this decision would be determined at the end of a two year period. This expiration date was largely masterminded by Governors Colbert and Pitchlynn, who feared that if the Freedmen were removed from the Nations to the unsettled land in the west portion of the Territory that Freedpersons from the States would gather and settle with them. Angie Debo’s book “The Rise and Fall of the Choctaw Republic” details a joint circular urging ratification of the peace treaty that explained their fears of the creation of a single “negro nation” that would border Choctaw and Chicksaw Nation. They also expressed that the Freedmen were needed as laborers for the nations to whom they were formerly enslaved. It was the unpaid labor of its enslaved and later freed black labor force that allowed the Nations as a whole and individual Native families to consolidate wealth at a great scale. 

Who built the first council houses in Indian Territory? Who worked the money-making plantations of Robert Jones? Who built and staffed the homes that the Pitchlynn and Colbert families lived in? Who provided the Nation with its food and staples, all grown for the low cost of human suffering?

As the two year period passed, it became clear that the Choctaw and Chickasaw Nations would not be compelled to either adopt the freedmen as citizens or lose access to a workforce of cheap labor.

It would be remiss to pretend that the Choctaw and Chickasaw Nations did not purposely hold off on establishing Freedmen as citizens or deporting them for as long as they did, in some not small part, due to economic need. At any point during this period the Choctaw Nation was teetering on the brink of collapse due to continued famine, their economy had been built on the enslavement of thousands living in bondage within their Nation. They had never planned on the Confederacy losing the War, and had thus never considered a world where slavery would be abolished within their nation.

In a report submitted by Martin Chollar, an agent to the Choctaw Nation, in 1868, “They [the Chickasaw and Choctaw Freedmen] have been waiting patiently the action of the government on their behalf, and have at last become uneasy and dissatisfied. […] The unsettled condition of these freedmen has caused more or less trouble, in which quite a number of them have been killed, and in my judgment nothing but prompt action by the government will prevent more serious difficulties and complications.

It is evident in this report that the Freedmen were aware not just of their tenuous legal position, but also that it was unlikely that their plight would be resolved.

One Indian agent had this to say in 1869, a year after the allotted time in the treaty had elapsed: 

“The Choctaw and Chickasaw nations having failed to provide for their adoption in the time provided in said treaty, it became the duty of the government to use the three hundred thousand dollars contingent thereon in the removal and establishment of such persons in the premises, and it is to be hoped that the present administration will not be so indifferent to the rights and necessities of these poor colored people, oppressed and persecuted as they have been and still are by those who regard them intruders in their homes. In this connection I would renew the suggestions made in my last annual report, that some arrangements be made with these tribes for a pro rata of land and funds, upon and with which to colonize and support these colored people. The feeling that the provision of these treaties of 1866 conferring citizenship upon the blacks, was a compulsory measure, is growing in the Indian mind, and sooner or later will manifest itself in acts of hostility toward the colored race.”

United States. Office of Indian Affairs Annual report of the Commissioner of Indian Affairs, for the year of 1869

It was increasingly obvious that the position taken by the United States and the Nations was that of indifference towards its Freedmen. It was unsustainable and would soon erupt into violence. The question simply remained if that violence would be physical or political.

G.T. Olmsted wrote in a report to Elys Parker, the Commissioner to Indian Affairs, in 1869 about a convention he organized in the Territory to discuss the issue. Most notably, he included Freedmen in the meeting, an action that did not happen during the negotiations of the Treaty of 1866. It may be the first provable instance of the Choctaw and Chickasaw Freedmen being asked by the United States Government what they wanted.

“They [the Choctaw and Chickasaw Freedmen] want to settle down, and evidently look to the government to do what is best for them. I called a large meeting of the freedmen of the Choctaw and Chickasaw Nations at this place on the 28th of August last. There were over three hundred negros present, representing their people from all parts of both nations. There were also present his excellency Governor Cyrus Harris, of the Chickasaw Nation, and several other of their leading men and officers, principal chief Hon. Allen Wright, and others of the Choctaw Nation, and a number of citizens of both nations. I explained to them the treaty and the object of the meeting, viz: that it was intended for them merely to express their sentiments, as to whether, under the existing state of affairs, they wished to remain in the nations, or remove from them, and if the latter, where they wished to go. The governors of both nations address them, and they had full opportunity to consult among themselves. Their ideas and views were many and various, but they finally decided in a body that they would remain, if possible, as they preferred being with the people among whom they were raised than among others whom they did not know. But the principal and prevailing idea among them all, without exception, is that they do not want to lose the protection of the United States government, and evidently fear being left solely under the control of the laws of the nations, or the laws of any other State or community, where they could not have recourse immediately to the government for its decision of ever point that relates to their interests. As far as I can learn, the Choctaws are in favor of their remaining in the nation, and the Chickasaws are in favor of their remaining themselves as wishing to have them removed, now seem waiting for the government to decide on some course in regard to them. 

The question is undoubtedly of great importance, and will require careful legislation to decide it to the satisfaction of all parties. I would respectfully suggest that the government make some proposition to the Choctaws and Chickasaws with regard to a supplemental treaty, by which the freedmen could be fairly settled and established as citizens of the nation, (as such a treaty would be necessary either in the case of their adoption or removal) in view of the fact that the time for the requirements of the treaty of 1866 has gone by, and also would settle the question concerning the claim to the $300,000 mentioned in the latter treaty.”

United States. Office of Indian Affairs Annual report of the Commissioner of Indian Affairs, for the year of 1869

The delay in the fulfillment of treaty terms was a source of great hardship for the Freedmen living in the Nation. They did not have the legal security promised by the treaty nor did they have adequate protection to build lives within the Territory. Many wanted to stay in the land that they had been born or grew up in, but an equal measure desired to be relocated. However, they could not just pack up their belongings and leave. Choctaw and Chickasaw Nation had passed stipulations forbidding any Freedperson from returning to the Territory once they left–to leave would be, in many cases, to abandon their families who still held out for adoption. If the Freedmen were later adopted, anyone who had willingly left the Nation would not be considered for citizenship. Additionally, many Freedmen spoke the language, they were active participants in their communities, and identified with the dominant culture of the Nation they lived in. 

The slave code of the Tribes had irrevocably damaged the the ability of the Freedmen to exist outside of the Nation. The years immediately following the Civil War only amplified this disparity.

The legal status of the Freedmen of Indian Territory, in many aspects, is unique when compared to those who were enslaved in other places within the United States. Enslaved people living outside of Indian Territory were absorbed as citizens of the nation that had enslaved them, but Choctaw and Chickasaw Nation’s sovereignty allowed them to keep their Freedmen in a legal gray area. They were not enslaved, but they were also not freed of the vestiges of chattel enslavement. They were not legal citizens of the Nations, but they also were not, truly, citizens of the United States either.

The question of legal status continued well into the 1870s and onwards with no resolution in sight.

In 1872, Agent T.D. Griffith wrote, “it is of great importance that they [the Choctaw and Chickasaw Freedmen] should somewhere have well defined rights. […] There should also be means provided for the education of their children. They are not able to employ suitable teachers, and the consequence is, many of these children are growing up ignorant as their fathers were before them.

Griffith was not the last United States agent to report on the pitiful state of Freedmen rights and education within the Territory. In 1874, the Commissioner wrote the following on the status of the Freedmen:

“The negros who were formerly owned as slaves by the Choctaw and Chickasaws are in an anomolous condition. They have their freedom, but are without equal rights and privileges. There is no reason in justice and equity why these negros should not be treated by the government as a consituent part of these Indian Nations, and share with them in all the right of landed property and educational facilities. They are orderly, industrious, and eager for the education of their children, and yet are obliged to spend their labor upon farms to which they have no title, and which when once well improved are not infrequently taken from them. Their children grow up in ignorance in sight of school houses in which they may not enter.

United States. Office of Indian Affairs Annual report of the Commissioner of Indian Affairs, for the year of 1874

This issue of questionable legal status would persist for the Choctaw Nation’s Freedmen until adoption in 1883–fifteen years after the deadline set out in the Treaty of 1866. However, the law adopting them into the tribe was far from fair and was insufficient in the face of the treaty’s stipulations.

While they were promised in the 1883 law all “the rights, privileges, and immunities, including the right of suffrage of citizens of the Choctaw Nation, except in the annuities, moneys, and public domain of the Nation” this was not the truth. The law contained two provisions that would have sweeping implications.

The first provision is that no one of Freedmen status or descendancy would be eligible for the offices of principal chief or district chief. It also stated that intermarried citizenship should not be conferred upon non-citizen negros who should marry Choctaw Freedmen. Both of these laws were at odds with the idea of full adoption. Natives from other tribes and whites who married tribal members were given intermarried citizenship–but now within the proposed law black intermarried citizens would not be considered valid. Nor would their adopted freedmen be allowed to express full political mobility–despite the mountains of evidence proving that many Freedmen were of blood relation to Choctaw families.

The Commissioner to Indian Affairs objected to these provisions on the grounds that it went against the wording and spirit of the treaty. The Choctaw council repealed the article prohibiting Freedmen from the office of Chief and appointed two delegates to push the law through the Commission with the amended language. The Commissioner still refused to give his approval, but the Secretary of the Interior accepted the bill.

Unknown to the Secretary, the Choctaws had calculated this move. By adding the chief provisions to their bill, they had a bargaining chip to pass a bill that went against the provisions of the Treaty of 1866. What the Secretary and many non-Choctaws did not realize is that the Choctaw Constitution already limited the office of chief to lineal descendants of the Choctaw and Chickasaw race–a wording vague enough to disqualify all Freedmen, including those of mixed heritage. 

The surviving provision and constitutional amendment swiftly and decisively limited the political power and sustainability of the Freedmen civil rights movement more surely than any mere legislative enactment could. And even the protections ensured by the 1883 law, while equitable in wording, were not equal in their application.


Conclusion

When I first stumbled upon the mention of a Special Commissioner to the Freedmen in Angela Walton-Raji’s book “Black Indian Genealogy Research”, I had expected to find a man alone in his quest for justice against insurmountable odds. But what I was looking for was evidence of a man who existed only in my mind.

Genealogy and historical research simply brings into clear focus the triumphs and tragedies of our past. A man is just a man. All do some measure of evil and all do some measure of good–what we become is entirely up to ourselves. Some live to move the needle of progress forward while others live to set it back.

John Sanborn went on to have a successful career for another decade, but his friendship with James Harlan was never the same. Harlan had thought Sanborn an honorable man, a protector, and had been proven wrong.

Sanborn’s corruption would only come to light in 1874 when his greed was laid bare. He was indicted for fraud in a National Court. He had for the past several years, while under contract with the Department of the Treasury, extorted private businesses to the tune of $213,000, which is 5.5 million dollars in today’s money. Sanborn managed to avoid jail time, but his actions caused President Grant to pass the Anti-Moiety Acts–which would change the way tax money could be legally collected and by whom forever.

When I started my research, I was working backwards from a conception of a man I did not know. And just like Harlan, when I finally knew him, I did not like him.

Modern Choctaw history refers to John Sanborn almost strictly in the context of his final letter–sometimes ignoring his first two reports entirely, and often postulating that he misrepresented what he initially reported. Angie Debo’s book the “The Rise and Fall of the Choctaw Republic” which is considered to be a core tenant and absolute authority on Choctaw history misrepresents the severity and truthfulness of his work, and willfully or through lack of knowledge does not make mention of contemporary reports that supported Sanborn’s claims.

She notes that “he must have been treated with the utmost consideration, for the tone of his official reports changed completely” but does not question why or how easy it may have been to buy General Sanborn–despite the news of his misdeeds having been public knowledge for almost ninety years.

It is hard to take in good faith Sanborn’s last report as it appears to be in his nature to be duplicitous. It is just as hard to take in good faith Choctaw Nation’s move to a wage-system—how authentic can such a system be when most the judges overseeing wage contracts were members of the Confederacy? How can the decision to hold off adoption possibly be in anything but bad faith when the Nations profited from holding the Freedmen in legal limbo?

A majority of the signers of the Treaty of 1866 were the same men who signed the Articles of the Confederacy. They were the same men whose personal wealth had been, almost certainly, contingent on the free labor provided by the humans they held in bondage. They were the same men who maintained power after emancipation and got to write the laws regulating the rights of Freedmen living in their Nation.

How could any of this be in good faith?


Additional Reading

“To Convert Negros into Indians”: The Curious Case of the 1910 McGuire Bill

The Choctaw-Chickasaw Freedmen Association

The African-Native American Genealogy Blog

Black and Red Journal 

The American Slave Code in Theory and Practice: Its Distinctive Features Shown by Its Statutes, Judicial Decisions, and Illustrative Facts

Acts in Regards to Negroes, Free and Enslaved in the Cherokee & Choctaw Nations

Reports of the Commissioner to Indian Affairs and Other Documents Related to US/Indian Relations

Historical Documents – Choctaw Nation

Reconstructive Treaties – OK History

What Tribal Sovereignty Means for Freedmen Citizenship

Memorial Address in Honor of General John B. Sanborn

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