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.