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Primeval Place: Brown's Spring

Access to the Land beneath our Feet

Watering ponies at Washita River Caddo County by William Edward Irwin 1900 OHS.jpg

Access to waterways is enshrined in every state's laws, but is rarely enforced. This photo of native men watering their horses is by William Edwin Irwin, 1900 (OHS).

As I drive around the Red River Valley, I am frustratingly confronted by fencing, everywhere. I can appreciate putting a fence around a house, whether to keep dogs in, to feel safely ensconced, or just for a desire to enjoy a backyard naked. But on the open prairie, in the canyon lands, and even on the banks of streams, entire square miles are enclosed, providing cattle more access to places like cemeteries, former settlements, creeks, and rivers, than me.


How did this happen? At one point did the United States of America become the Segmented Plots of Land Barons?

Founded on Commonality

Of course, it started with Congress and native people, because America's plentiful land became an avenue to wealth, i.e. yet another resource to exploit. But that wealth was not supposed to be accessed equally: Indians were removed from their own lands altogether or quartered into reserves, and Africans were kidnapped for their labor to make the land pay dividends for the new "owners" but they were disallowed, by law, to reap any of the benefits from their work. The first land cession "treaty" upon the new republic's founding occurred in 1786, when the Northwest Territory was divided into land grants. Then, the Monroe and Jackson administrations solidified "state's rights" by upholding land cessions in places like Ohio and Mississippi; thereafter, the removal treaties for certain tribes, like the Americanized Choctaws, commenced.


This land theft was a travesty of the very founding of the United States, which was based on John Locke's Treatise of Government: the right to life, liberty, and property, meaning a person has the natural entitlement to take advantage of COMMON lands through his labor. Just FYI or those who don't know, Locke’s Treatise of Government is known as "classical liberalism." We'll return to that word shortly.


What is meant by common lands? Pretty much, the land beneath our feet, wherever we are. According to the original philosophy that initiated our country, land is not a resource but a natural right that everyone has the right to enjoy, like the air we breathe and the water we drink. This was not a new idea, either: all of Europe, Africa, Asia, the Americas existed for millennia under the idea that land belonged to everyone. England's Magna Carta was the first to enshrine this doctrine legally. Buying and speculating on land, fencing off large tracts of land for no other reason but to claim it, and forcing others to work on land but not reap the benefits of their own labor is opposite of the republic's democratic principles.


The "founding fathers" did everything in their self-exalted power to privatize land by fashioning land use after the English common law system. After all, they believed themselves as aristocrats who were supposed to be in the House of Lords (1). George Washington, Benjamin Franklin, Thomas Jefferson, and all the others were speculators who claimed vast tracts of land for no other reason than to count it as securities against debt, which was ultimately the same reason for the slave trade... and the modern credit system. Modern conservative thought has championed the founders’ actions of holding land and labor in private hands to justify continuous land grabs, even outside of the United States.


So, how did they get hold of all this land once the Indian was "gone?"


Land “Grants”

Millions of acres were granted to white people through congressional actions. The Northwest Territory was divided into square miles that could be gained for less than $1 per acre; Oregon Territory was reserved for white homesteaders; Texas immigration schemes like Peters Colony gave away lands to white men, with double the acreage if they were married. The Homestead Act of 1862, meant to settle the Great Plains, actually granted land to blacks, but the white power structures within the territories made sure that many of their farms and settlements did not last long.


The Southwest Territory differed from these schemes, though how it differed is not really explained well in history textbooks. Places like Kentucky, Tennessee, (upper) Alabama, and (upper) Mississippi saw many white people simply claim a plot of land and build a home/farm on it, without the benefit of legal title and to the detriment to the large tribes who lived there. This is how nations like the Choctaws and Cherokees saw their own territories dwindle away, as white men simply squatted on the land, while their white governments supported their claims via the tenth amendment's "state's rights."


This is where this supposed "right to property" goes awry. Our country now has over 250 million people but, as Isabelle Mueller writes, a "shocking 40.2 million acres in 2017" is held in private hands: "Capitalist society and values have reduced property from a resource necessary for sustaining life into investments only accessible to the upper classes, thereby unjustly removing land from the State of Nature and squandering the opportunity for other economic classes to use the lands in common (2).


But what about those of us who were not the right color/creed to gain title, or who weren't around at the right moment in history to obtain a land grant? Or... and hear me out!... who were not rich enough to persuade the laws and doctrines to act in their favor, regardless of skin color and ethnicity? Because when looking at the theft of lands-held-in-common in the United States, actions were supported by those who were slated to benefit, regardless of their ancestral heritage. One just has to know a little bit about the history of the Red River Valley to understand this.

Map 1783 Paris Peace Treaty.jpg

The map used in the Paris Peace Conference of 1783 between the nascent United States and Great Britain shows the extent of common lands to the Mississippi River, which the British had held as an Indian Territory. Clicking on the image will send you to the map at the LOC.

A History of Land Theft in the Red River Valley of the Southwest


Example 1: The Caddoan Expulsion

The Caddos are the original inhabitants of the lands in the eastern Red River Valley. The French and Spanish placed presidios (forts) and missions within their villages and claimed the land and its riches for their crowns, with the explicit permission to do so by the Catholic Church. These new overlords forced the people to work for food, tobacco cultivation, salvation, or in mines that the colonists hoped would produce gold or silver.


Upon the Louisiana Purchase of 1803, the American government, by virtue of its own constitution (“excluding Indians not taxed”), did not recognize Indian claims. The Caddos were expelled from their lands by the 1820s, with the promise that they could claim land grants in Spanish Texas. Spanish Texas then became Mexican Texas by 1823.  Mexican Texas allowed American whites to colonize, but the American colonists did not want the Caddos to hold title within the empresarios. Attempts to create an independent Texas emerged in Nacogodoches even before the Texas Revolution of 1836 for this specific reason. When the revolution happened, the Texas Republic rejected Caddoan land grant claims, including the common salt lands along the Red River Valley in northeastern Texas and southwestern Arkansas:  in 1836, the marshes were taken over by white American men with the approval by the U.S. government. The Caddos remained landless for decades until expelled from the Brazos Indian Reservation in Young County, Texas in the 1850s.


Example 2: Mexico v. the United States

Speaking of holding title... the Mexican government granted legal land to native people, like the Shawnees and Delawares who had been expelled from their original lands by Americans along the Red River. Now, the Mexican government did this so that the native people could act as "buffers" against encroaching whites, most of whom were squatting on the land and not making "legitimate" claims within Wavell's Empresario (1827). Land to native people was also not granted outright, as the people could not pay the filing fees; they could obtain a grant after a number of years on a tract. Some bad-acting white men and Caddos, who saw the Shawnees and Delawares as ancestral enemies, attacked the Indian settlements to force them to become nomadic and never be able to claim a portion of land. The conditions for the Shawnees and Delawares became so bad that the American commander of Fort Towson (built 1819) reported them to the Secretary of War.


Example 3: Indian Removal

The Choctaws were the first eastern nation of the so-called "Five Civilized Tribes"(3) to face expulsion from their homelands in Mississippi through the Treaty of Doaksville of 1820. The Monroe administration granted land in western Arkansas Territory to the tribe, which many whites deeply resented; several had already established homes, farms, and mills there. The white men in the region torched Fort Towson to make their dissatisfaction known.


While Choctaw lands had traditionally been held in common, Choctaw women who had married white men, and the offspring of these marriages, found themselves as owners of specific tracts of lands in the new territory by virtue of simply claiming it. This is how Robert M. Jones, a Choctaw national, was able to accumulate 15,000 acres and over two hundred enslaved people for his own benefit. However, he did not fence off the lands where cotton was cultivated, so technically, the land was still approachable.


Example 4: The 1866 Treaties

By 1855, the Chickasaws had purchased the western part of the Choctaw Nation to establish their own nation. The original inhabitants -- people from the Wichita-affiliated tribes -- had been rendered defenseless against the takeover due to disease and warfare with Texans. They were relegated to live along the banks of the Red River. Then, in 1866, the federal government forced the Chickasaw Nation to surrender the western portion of their lands (which they had paid for!) in preparation for the Plains Indian wars, with the ultimate goal being to place the nomadic tribes onto reservations in the Indian Territory (formerly, western Arkansas Territory and originally, Pawnee lands). The very next year, in 1867, the reserve was established by the Medicine Lodge Creek Treaty.


The 1866 treaties also stipulated that the people formerly enslaved by Indian nations who had sided with the Confederacy were to be adopted by the tribes, who had to furnish access to the land to them. While this sounds completely fair, it's also important to note that this stipulation was NEVER meted out to any non-native Confederates. 

Example 5: Cattle

19th century ranchers from Texas, invariably all white men, simply ran their cattle onto Choctaw and Chickasaw lands across the Red River without regard to authority: the Despains, Ike Cloud, John Roff, and more. Sometimes they paid fees to the tribal government, but most of the time they did not. In order to claim ownership and in the hopes of gaining access to voting in the nations, these white men "married" women of Choctaw and Chickasaw ancestry. Usually, this was their first marriage and the women died young; the second marriages tended to be to white women. The white male spouses (as well as their children by the white woman) claimed tribal affiliation through their first wives, in-laws, and step-siblings to use the land to their benefit. When the children resulting from the unions between white men and Indian women were granted allotments in the 1887 Dawes Acts, the white families attached themselves to the allotments, often via “adoption.”


White men who married Indian women were called "Squaw Men," a pejorative that recognized both the nefarious motive of the white men and the racist idea that marrying a native woman was undignified; however, when the land benefits of marrying into a tribe emerged, the term "squaw man" changed to mean "civilizing the Indian." These same men also de-Indianized the lands by renting to white men and refusing to pay fees to the Chickasaw Nation. These men did not just steal the land, but Chickasaw-owned cattle, too, and one of them, William Washington, “hired Jim Miller to kill United States Marshal Gus Bobbitt” to prevent investigations (4).


Many cattlemen in Texas gained their lands as a payment for service in the Civil War, as Texas had no cash money. But only those who volunteered for western “frontier” duty qualified, like Charles Goodnight, who received over 2,000 acres of canyon land at Palo Duro. He tried to eradicate the remaining bison (his wife intervened) and delivered beef to Fort Sill under a government contract. Thus, he was awarded former Comanche and Kiowa lands after he assisted the United States in forcing them out, and then sold to them the cattle he had raised there. Goodnight made out like a bandit.


Example 6: Fences

The invention of barbed wire in 1866 solidified the destruction of lands held in common. It was very easy to pull a barbed wire fence, even on land that one did not actually hold title to. This is how mega-ranchers of the 20th century got their starts: they simply closed access to the common pastures and the common watering holes, meaning that people making their living the land, such as cattle drivers, suddenly found themselves working for land barons instead of their own selves. In Indian Territory, white man Andy Armstrong’s fences even “went across all the roads and trails” (4). This led to the "range wars," where ranchers and farmers clashed, and the fence-cutting wars, where cowboys on the cattle drives cut the barbed wire fences in their paths. The Texas government sided with the wealthy "land owners," whose outsized influence led to anti-fence-cutting legislation, and encouraged the use of law enforcement (such as the Texas Rangers) to enforce "no trespass" laws to the point of death.


For African Americans, the “no trespass” laws were enacted as anti-loitering laws; merely “hanging out” with their friends in the middle of the workday could land them in prison and then, leased to farmers to pick crops.


In 1885, calls for a permanent “national cattle trail” were made to congress so that the drovers could maintain their business, but this proposal died in favor of the land owners and railroad shippers.

Example 7: Common Lands v. Lands in Severalty

Native people holding their lands in Indian Territory in common was seen as detrimental by white Americans like Major Randolph B. Marcy, the man who established Fort Arbuckle in 1850 and who recounted his impressions of Indian Territory in a memoir published in 1854 by a soldier : "The policy of our government has been practically to deny the capacity of the Indians for civilization, by compelling them to hold their lands in common, and not in severalty, depriving them of the power of alienation [selling land], thereby creating not necessity for self-reliance and individual effort (5)." The soldier echoed the push to privatize lands in the territory, a movement gaining steam in Congress.


Within the same chapter, the soldier, W.B. Parker, recorded the reactions by native men of the impending actions by Congress: “I was not surprised in conversing with many of the old men of the tribes, on the subject of this bill, to find them all of one opinion. They are strongly opposed to it, and wind up all their conversations with the same conclusion, viz., that it is a scheme of the white man to dispossess them of their lands. They say, ‘We got land now, we keep him; white man come, all is gone’.”


By 1880 the U.S. government considered that Indians who reside on common lands “make but little advancement in civilization… still dressing blankets and using the bow and arrow to hunt the buffalo, without whose flesh and tallow they cannot subsist” (6).  Congress passed the Dawes Severalty Act in 1887, which privatized the "common land" into several homesteading tracts to ultimately carve “Indian-owned lands from 155 million acres in 1881 to 77 million in 1900 and just 48 million in 1934” (University of Houston).


Opponents to this bill recognized the ultimate goal: “The real aim of this bill is to get the Indian lands and open them up to settlement… With that accomplished, we have securely paved the way for the extermination of the Indian races upon his part of the continent” (6).


The Dawes Act introduced the Dawes Rolls, a concept in which people were counted by "blood quantum" to prove their tribal affiliation and then placed on the census to claim the allotments. The lands were allotted not via typical homesteading tracts of 640 acres or even 320 acres, but by quarters. This meant that the land was useless for someone wanting to make a living from farming in this increasingly industrialized practice. Coupled with high taxation onto people who were mainly cashless, and debts incurred by individuals to unscrupulous men within their midst, the majority of allotments had to be sold.


The allotments provided land to every native person — every man, woman, and child — within Indian Territory. Land-hungry white men began aggressively seeking Indian women to marry and thus, gaining access to their land. This land grab extended to children, as not every child receiving an allotment had parents looking out for their interests, or even understanding what was happening to them. White families, mainly from Texas, adopted children to gain the land titles. A newspaper editorial from Lawton, Oklahoma in 1907 described it as being “born with a fortune in their hands.”


The lands that were not allotted were opened to land rushes (1889), and then later via lottery. Many of the tracts were not taken by traditional homesteaders (a family) but by railroad corporations, which then leased or sold parcels. The railroads also bypassed towns set aside by the government in favor of settlements platted by their town-building divisions.


Example 8: The Big Pasture

The last common land in the Red River Valley, known as the Big Pasture in the southwestern part of the Kiowa-Apache-Comanche nation (established in 1868), was to become the final victim of land theft in the Red River Valley.


The nation had figured out that rents could sustain them. They leased their land to Texas ranchers, brick makers, and mining operations. They also launched their own ranches. White populists of the early 20th century pushed for the division of the reservation lands instead, desiring the 532,500 acres that comprised the “Big Pasture,” be opened to farming. Their argument was that farming was the common man’s occupation that brought prosperity to everyone.  


The People’s Party that initiated this “Farmers Movement” was politically very persuasive. Congress agreed with the small farmers as quoted in the 1890 census: these Indians “had no home on the face of the earth” but their land “is tillable and favorable to the production of corn, oats, rye, and other cereals, also of cotton, vegetables, and fruit” (7). After filing a petition in 1901, the “Big Pasture” was to be opened to a government auction in 1903.  


Lone Wolf, the Chief of the Kiowas, attempted to halt auction. He sued the United States, explaining that that the auction was in violation of the Medicine Lodge Treaty. In Lone Wolf v. Hitchcock (1903), the Supreme Court sided with Congress, stating that the United States is free to abrogate all treaties made with dependent people due to its plenary powers: any and all tribal land is ultimately controlled by the United States. In the majority opinion, Justice White wrote that “the right which the Indians held was only that of occupancy. The fee was in the United States, subject to that right, and could be transferred by them whenever they chose.”


Interestingly, Secretary Hitchcock, who as the Secretary of the Interior was named the defendant in the Supreme Court case, recommended not opening up the Big Pasture to outsider settlement. In a letter to Senator Platt (CT) who sponsored a bill for a land lottery in 1904, Hitchcock argued that “the pasture lands were reserved exclusively for the use and benefit of the Indians and that the government has no right to sell the land unless a new treaty is made.”


With the break-up of the reservation, the land was practically invaded by non-native people through land lotteries in 1906. Some of the lottery winners took their homestead claims to establish farms, businesses, and settlements. Others held the claim and leased it to others. These non-native farmers and speculators fenced their lands to keep their own livestock and to prevent the ranchers from accessing their fields. This practice led to many confrontations, not unlike the range-wars in Texas that occurred a few decades earlier.


Example 9: Mineral Rights

The soil was not the only theft; it was also the minerals beneath the soil. With the tacit agreement by the Choctaw and Chickasaw governors, the “sale of segregated coal and asphalt lands” was approved by congressional action in 1906 (8). This meant that the wealth the nations could have had was sold to private interests (in this particular case, the railroad) and the nationals were left to work, and die, in the resulting mines.


These actions echoed events in states like Virginia and Pennsylvania, in which common lands were immediately rendered extinct upon the founding to the United States: coal (and later, oil) belonged to the state, which then granted the right of extraction to corporations. The history of this bears out in coal mining towns like Lehigh (Coal County), which was named after the Lehigh Valley in Pennsylvania.  


Example 10: The Mass-Murders of the Fauna

The influx of white settlement led to mass extinction attempts all throughout the Red River Valley. The bison were the first causalities, as killing them assured that the Plains People would have to stay on their reservations and depend on governmental assistance or be forced to become farmers. Large wolf and coyote hunts, at times attended by over a thousand men, were staged throughout Oklahoma at the turn of the 20th century in attempts to protect livestock. Bear trapping and other destruction of animals resulted in a landscape devoid of life; even the ubiquitous “horny toad” (horned lizard) became less visible. In Texas, the town of Sweetwater still conducts an annual “Rattlesnake Roundup” to dispose of these native inhabitants.

Neo-liberal Plots

In essence, this land theft came about by people who were a) of the correct heritage and b) born in the correct time period. The United States has become an aristocracy.


The privatization of public lands is why many cemeteries, rivers, prairies, and former settlements, and canyons have become inaccessible. The notion that the right to property means that it should be held in private hands, fenced from the common people, has superseded the right to life and liberty. Even more egregious is the neo-liberalism that emerged from this history.


Neo-liberalism is the idea that the right to life, liberty, and property is the purview of the capitalists, not the common man (9). Neo-liberal nations like the United States and Great Britain have enshrined rights to *private* property, life and liberty be damned. In many western states, this neo-liberalism is going further in the New Speak of "reverse-action." States like Texas have refused adding more land to their public domains, and are actually selling off their lands into private hands without a public benefit, with the explicit permission from rich and well-connected "public" officials (case in point: Fairfield Sate Park). Because many of these land grabs don't happen in our proverbial backyards, most of us just shrug it off. These same officials seem to be open to the rich profiting off the sales of lands to foreign nationals (like the Chinese and Russians) THAT THE STATE GAVE TO THEM in the first place.


Easy Solutions

The solution is not to revert to chaos or communism; the capitalist ship has sailed. But a more equitable answer is written in the examples from other countries as well as our own laws. The United States should:

  • continue to set aside public lands AND make them accessible via gate laws that the states would have to honor and enforce

  • stop mineral exploitation on public lands

  • halt land sales to all foreign nationals, and require that sales of lands by new corporate "citizens" (where corporations are counted as citizens) a Jeffersonian generation expiration dates of twenty years

  • unlock public lands that are currently held hostage by private land owners fending off access

  • enforce state laws that are already in place to access waterways and cemeteries

  • demand the access of ‘common lands’ through national hiking and biking trail network that recompenses land owners for keeping the land available to all.


I recognize that all this verifiable history will fall on deaf ears (I was going to be hopeful and caution the sentence with "most likely" but decided against it). We've become so inured to the neo-liberal landscape of fences everywhere, Dollar General and Walmart everywhere, strip malls everywhere, made-up PACs that argue against public transportation and public lands everywhere, parking lots instead of sidewalks everywhere, corporate land lords increasing rents to debilitating levels everywhere, religious factions that preach against inclusion everywhere, politicians who become rich by holding public office everywhere, curricula in the public schools that are mandated to teach the benefits of capitalism but not criticize it everywhere, people living under bridges and along highway right-of-ways (the last public lands?) and people without access to land defending those who DO have access to land everywhere because they have been conditioned to worship the Bull — use this word how you wish.

1. An early motive that led to the American revolution was Great Britain's rejection of colonial overtures to sit in parliament. Washington would have remained British had the military given him a suitable commission.

2.Mueller, Isabelle, "Excess Land Concentration in the Hands of the Wealthy: A Violation of Locke’s Law of Nature." The First-Year Papers (2010 - present) (2019). Trinity College Digital Repository, Hartford, CT.

3. Civilized: adopting Anglo ways in the form of worship and schooling.

4. St. Jean, Wendy. “You have the Land, I have the Cattle.” Chronicles of Oklahoma, 78 (2), 2000.

5.Parker, W. B. (William B.). Through Unexplored Texas: Notes Taken during the Expedition Commanded by Captain Randolph Barnes Marcy, United States Army, in the Summer and Fall of 1854, book, 1984; Austin, Texas. ( accessed December 20, 2023), University of North Texas Libraries, The Portal to Texas History,; crediting Texas State Historical Association.

6. 40th Congress, 2nd Session. “Lands in Severalty: Report by Mr. Scales from the Committee on Indian Affairs to accompany bill H.R. 5038.” May 28, 1880. Indian Serial Set.

7 .Census, 1890, Volume 10.

8. Congressional Record, Senate, 1906. Accessed December 20, 2023), University of North Texas Libraries, The Portal to Texas History,; crediting Texas State Historical Association.

9. Easy ways to differentiate between a capitalist and a common man: if you owe a mortgage, you are NOT a capitalist. If your paid-for dwelling, i.e. a homestead, is your only asset, you are NOT a capitalist.

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