MEGAN BENSON, Ph.D.
Ph.D. , History, University of Oklahoma, 2003
Areas of specialty: environmental, legal, Native American
Master of Arts, History, University of Oklahoma, 1996
Bachelor of Arts, History, University of Oklahoma, 1994
Strategic Consultant, Indian Water Resources
Historical Research Associates, Inc. Research Historian, 2004-2007
University of Science and Arts of Oklahoma, Adjunct Faculty, "Kiowa Treaty, Law and Policy" Fall 2001-present; co-taught with Chairman J.T. Goombi
Oklahoma City Community College, Adjunct Faculty, Fall 2003-2004
Rose State College, Adjunct Faculty, Fall 2002-2004
Oklahoma Humanities Council, Program Officer, 2000-2001
Carl Albert Center Congressional Archives, Research assistant, website and exhibit copy writer, 1998-99
University of Oklahoma, Department of History, Hoving Fellow and Teaching Assistant, 1994- 98
PUBLICATIONS AND WRITING:
"The Fight for Crow Water," Pts. 1 and 2, Montana The Magazine of Western History 57 (Winter 2007): 24-42; 58 (Spring 2008): 3-23.
"Damming the Bighorn: Indian Reserved Water Rights on the Crow
Reservation, 1900-2000." Dissertation, 2003, Edward Everett Dale Award, Graduate 2000 Award selection by University of Oklahoma Press, contract pending.
"Fisher v. Allen: The Southern Origins of the Married Women's Property Acts," The Journal of Southern Legal History 6 (1998).
"Yee P'ay Gyah Maw Tame Aim, The Kiowa Clemente Course,"
Humanities Interview, 2001.
"Reform and Retaliation: Cora Diehl and the Logan County Election of 1891,"
Oklahoma Politics, 1996.
Encyclopedia of Oklahoma History: Cora Diehl
"The Modern Speaker," exhibit designer and copywriter, Carl Albert Center Congressional Archives, 1999
"Give 'Em Hell Harry," exhibit designer and copywriter, Carl Albert Center Congressional Archives, 1999
"Birth Control," "Abortion," "Migrant Labor." "Fair Employment Practices Act," "Dumbarton Oaks," website entries, Carl Albert Center Congressional Archives
Lead Scholar, "The Clemente Course Model: Bringing the Native Cultural Perspective into Oklahoma Classrooms," Inaugural Oklahoma Humanities Council Summer Teacher Institute, University of Science and Arts of Oklahoma, Summer 2008
"Crow Tribal Water Rights," Little Bighorn Community College, Crow Agency, Montana, Future Leadership Enrichment Program, 2008
"The Kiowa Clemente Course," National Endowment for the Humanities Conference, Washington D.C. Fall, 2000.
"Kiowa Treaties in the Context of Western Thought," Kiowa Clemente Course, University of Science and Arts of Oklahoma, Spring 2001, 2002.
"Native American Water Rights" Oklahoma State University, Fall, 2000
"Rehearsal for Oklahoma Water Development: The Bureau of Reclamation's Lawton Project," Oklahoma Historical Society, 2000
"Reform and Retaliation," Oklahoma Political Science Association Conference in conjunction with Oklahoma Women's Political Caucus, 1996
"Subversion in the Heartland," Oklahoma State Phi Alpha Theta Conference,1995
OTHER SCHOLARLY PARTICIPATION:
"A Place Called Water," panel commentator, Oklahoma Historical Society, 2003
Kiowa history and humanities curriculum design, University of Science and Arts of Oklahoma, 2000
"Tocqueville Discussions," Lilly-sponsored Oklahoma Humanities Council discussion, 2000-2001
Pan American Indian Institute, planning conference, 2001
Great Plains Regional Humanities Center, planning conference, 2001.
HONORS, AWARDS, AND GRANTS:
Montana The Magazine of Western History, Vivian A. Paladine Award for Best Article, 2008
Montana Committee for the Humanities, Research Fellowship, 2003
University of Oklahoma Press, Graduate 2000 Award Selection, "Damming the Bighorn"
Edward Everett Dale Award for the Outstanding Dissertation in Western History, Department of History, University of Oklahoma, 2002
Kenneth L. Hoving Graduate Fellowship, Graduate College, University of Oklahoma, 1996-98
Nominated for Outstanding Teaching Assistant, University of Oklahoma Student Senate, 1996 and 1997
Oklahoma Phi Alpha Theta Paper Award for "Subversion in the Heartland," 1995
Outstanding Undergraduate, Department of History, University of Oklahoma, 1994
University of Oklahoma, Honors College Research Grant, 1993-94
Moose Can Gully Neighborhood Association, Co-Chair, Council of Neighborhoods Liason, Missoula, Montana, 2005-2007
Cleveland County, Oklahoma Democratic Party Secretary
Oklahoma Academy Town Hall Meeting on State Goals
City of Norman, Oklahoma Traffic Appeals Commission
National History Day volunteer and diversity outreach to at-risk high school students
Norman, Oklahoma Community Development Block Grant Committee
League of Women Voters Observer Corps
Love this river; stay by it, learn from it...whoever understands this river and its secrets would understand much more, many secrets, all secrets. Siddhartha
The Milk River
Fisher v. Allen:
The Southern Origins
Married Women's Property Acts
In the acidic soil of Pontotoc County in northeastern Mississippi, human remains--even bones--can decompose in fewer than a hundred years. And so, in 1933, when the history class from Toccopola High School went to dig up the body of Chickasaw Indian, Elizabeth Love Allen, all they found were crumbling bits of dust. Undeterred and untroubled by future sensitivities, they scooped up all they thought significant out of the old gravesite and placed these remains in an applewood casket made for the purpose. With great ceremony the class carried the casket from the traditional Chickasaw burial ground to a location deemed more appropriate--the grounds of Toccopolo High School. To honor Allen's historic contribution, the class had an impressive new cement headstone inscribed:
Thomas Love and Third Wife
A Chickasaw Indian
Colonel John L. Allen
Noted for Her Role in the
Establishment of Property Rights
Of Married Women in the
Nearly one hundred years earlier, in 1839, Mississippi became the first state in the nation to enact a married women's property act, thus bringing to an end the thousand-year-old common law dictates of coverture as it regarded property.(2) While an unusual confluence of circumstances led to this extraordinary action, the judicial foundation for the Mississippi legislation was the 1837 court case Fisher v. Allen.(3) This case highlights what is arguably the most important single factor in the Southern origins of married women's property law reform--the matrilineal nature of Chickasaw property "ownership" as it intersected federal and state policies of Indian removal.
The year 1829 was significant for the Chickasaw people generally, and for Elizabeth Love Allen in particular. In 1829 Elizabeth Love Allen executed the deed that would change the legal status of married women in the state of Mississippi. Elizabeth Allen, the daughter of Thomas Love, was an influential female member of the Chickasaw tribe. Love, a British citizen, had taken refuge with the Chickasaw after the Spanish takeover of Florida during the American Revolution.(4) Like many before and after him, Love took advantage of the matrilineal, matrilocal nature of the Chickasaw people. Marrying into the tribe brought him use of the land that tradition had bestowed on his bride.(5) The Love children went on to be an important mixed-blood influence within the tribe. Elizabeth married not John L. Allen, but James Allen.(6) She brought considerable wealth, both in the form of land and slaves, with her into the marriage. In 1829, Elizabeth deeded one of those slaves, Toney, to Susan Allen, one of her daughters. It was this slave property that came under dispute in Fisher v. Allen.
The year 1829 also had broad significance for the Chickasaw people: in that year, Mississippi extended its state sovereignty over both the Choctaw and Chickasaw nations. Following hard on the heels of Andrew Jackson's electoral landslide for the presidency in 1828, the state legislature extended its jurisdiction over all the lands of the Chickasaw and Choctaw that lay within the borders of the state.(7) Georgia and Alabama enacted similar laws in an effort to force the removal of all the tribes of the Southeast--the Choctaw, the Cherokee, the Seminole, the Creek, as well as the Chickasaw--to federal lands west of the Mississippi. Implicit in these state laws was the denial of tribal sovereignty as well as the hope that Indian tribal holdings would now be owned by individuals, in fee simple, rather than collectively by the tribes. Once individual Indians owned their own land, they would be "free" to contract the sale of that land. Thus, market pressure rather than federal mandate might well dictate removal.(8)
The year 1829 was important for the Chickasaw for yet another reason. In that year they succeeded in replacing their corrupt agent, Benjamin Fort Smith. Smith, who had engaged in numerous nefarious deeds that had cheated the Chickasaw people out of at least $6,000, was the son of David Smith who was an old friend of Andrew and Rachel Jackson.(9) Since father and son fought at Jackson's side at Horseshoe Bend, it seems likely that patronage may well have been involved in the young Smith's appointment as Chickasaw agent. Such connections, however, could not protect him from his own blatant misconduct. The War Department, with John H. Eaton at the helm, simply discharged him. Secretary Eaton replaced Smith with John L. Allen, another old Mississippian who had fought at Jackson's side during the Florida campaign.(10)
The new agent for the Chickasaw proved to be far more concerned for the tribe's well being than his predecessor. Having married a Chickasaw woman himself, John Allen conveyed the concern the Chickasaw felt over the extension of state sovereignty over the tribe. "They conversed freely with me on the subject of the States of Mississippi, and Alabama extending their Laws over them, of which they were awfully afraid...the principle chief stated that if the Laws were extended over them, they had no belief that they would be placed upon an equal footing with the whites." Allen continued: "if they [are] made so by Law, all the offices of the Law would be composed of white men, and as they were unskilled in Lawsuits; and the whites would be partial to each other, they had no belief that they would be able to withstand the encroachments of the whites upon them...that in five years they would not have a vestige of property left." Allen finished this letter by announcing that the Chickasaw, rather than lose everything, were prepared to exchange their country for another.(11)
The Chickasaw council also addressed President Jackson directly on this same matter: "Father--Your red children view the state of things with feelings of deepest regret and are strongly impressed with a belief that you sincerely feel a desire to make us happy, also that the citizens of Mississippi and Alabama are perfectly aware that by the extension of their laws over us it would not benefit them one cent, but to affect an object so desirable to themselves that is to drive us from our homes and take possession of our Lands."(12) The council continued by imploring Jackson to consider that "we have now arrived at the age of maturity and that we may continue to act in this important occasion as will be best calculated to obtain the desirable object, peace, quietude and a perpetual home."(13)
Despite such entreaties, the process of removal proceeded with inexorable force. The formula for removal involved the division of Chickasaw tribal land into allotments designated for individual members; individuals would then be free to contract the sale of their own property. Two treaties, the "Pontitock Treaty" signed in 1833 and an amended treaty in 1834, designated who would receive land and how much they would receive. Ultimately, virtually every member of the tribe--male and female--received these allotments of traditional tribal holdings. The actual assigning of individual lots to the Chickasaw began in 1834 and continued through the end of the decade. Most land had been allotted by 1837--the year the Chickasaw removed to their new "perpetual home."(14)
It was during this protracted settlement that the case Fisher v. Allen came to trial, first in old Monroe County, and then in 1837 on appeal to the Mississippi High Court of Errors and Appeals. It seemed an ordinary case, containing as it did many elements typical of the period in Mississippi--bad debts, slaves, and Indians. John Fisher sued James Allen, the husband of Elizabeth, for payment of an old debt. Fisher claimed the slave, Toney, who had been owned by Elizabeth at the time of her marriage to Allen. The slave had been deeded to Elizabeth's daughter, Susan, who, "by her next friend," George Allen, defended her rights to the slave free from her father's debt(15) Under Mississippi law, and indeed all common law, such property would have been legally controlled by the husband, and subject to his debts.(16) But under Chickasaw custom, all property remained with the wife. As these two cultures collided, the stage was set not only for a confrontation over the ancient question of coverture, but also over the more pressing question of state sovereignty versus tribal sovereignty.
In the January term of 1837, the High Court found in favor of Susan against the creditor of her father; in doing so they cited Chickasaw law. both Chief Justice William L. Sharkey and Justice P. Cotesworth Smith rendered assenting opinions. Smith wrote: "The terms of the marriage contract between Allen and Betsy (Elizabeth) Love, as modified by the customs of the Chickasaws, conferred no right on him to the separate property of his wife, and no just construction can be given to the act validating their marriage, which would alter their condition or extend the marital rights of the husband." He continued: "In fact, such a construction would bring the case in conflict with the constitution; for if Allen, by the marriage, acquired no interest in the property of his wife, the property was hers at the passage of the law; and to give it such an interpretation as would confer upon him the ownership, would work a divesture [sic] of her rights." Finally Smith added: "It was the intention of the legislature to extend to these persons the full protection of the law; they were made members of the civil community. It was not the intention of the legislature, nor could they, if they had so intended, violate the sanctity of private property." For his part, Chief Justice Sharkey added: "The statute of 1830, although it repeals and abolishes the tribal laws and customs, cannot be construed to extend so far as to interfere with the rights of property previously acquired."(17)
By interpreting the marriage of James and Elizabeth Allen as a contract, the Mississippi Justices overturned the principle of common law coverture vesting the husband with all rights to hold and convey the property of his wife, and subjecting it to his debts. This ruling would have been much more difficult in a case involving white women, for although protections existed for white women through the equity system of jurisprudence, such protections were unusual through common law procedures.(18) It is of particular interest that Mississippi law should be interpreted so liberally at this time. This is especially true because of the broad opening Chief Justice Sharkey left with regard to property "previously acquired" by the Chickasaw people. On the very eve of removal, Chief Justice Sharkey seemed to assert more than the property rights of one Chickasaw woman; he also appears to have asserted tribal sovereignty, rather than state sovereignty with regard to property. Could it be that Sharkey was attempting to confront Jackson and "enforce" the trilogy of Indian decisions handed down by John Marshall?(19)
In a state teeming with land speculators waiting for allotments to be made so that they could buy up valuable land, and in a state where judges were elected, it seems unlikely that Justice Sharkey was just doing the right thing. Actually several factors may have motivated Sharkey. First, and perhaps most importantly, Fisher v. Allen concerned slave property. It is impossible to overemphasize the extent to which questions about slave property dominated the courts of Mississippi throughout the antebellum period.(20) But, the question remains, would Justice Sharkey jeopardize Indian removal because of the slave issue inherent in Fisher v. Allen? Three potential issues were involved here. First, it was in the Southern interest for slavery to expand westward, and Indian slaves seized for debts could not be taken to the new territory. Second, Justice Sharkey was extremely concerned with the increasing population of Blacks--both slave and free--in Mississippi. This did not spring from a humanitarian concern; rather the threat of insurrection always loomed large in the minds of Southern jurists. In fact, in previous decisions, Sharkey had helped refine both the laws against the importation of slaves and those requiring the exporting of freedmen.(21) Thus, he would have favored any decision that might encourage the dispersal of the slave population. Third, in Mississippi a steady progression of decisions limited and finally all but exempted slave property from seizure for bad debts.(22) All of these might have contributed to Sharkey's decision and lent themselves to the favorable decision for the Allens. By themselves, however, they do not provide ample reason to overturn coverture and at the same time jeopardize the long-awaited Indian removal. Indeed, the motivation for Sharkey's decision turned not on the issue of slavery, but rather involved the unusual combination of coverture and Indian removal.
Chief Justice Sharkey was not the only official to encounter the legal complexities of the Chickasaw matrilineal tradition. Several years earlier, federal negotiators found themselves forced to reconcile white legal practices with tribal custom as they formulated land allotments. There were two allotment treaties signed after the Chickasaw made their initial "decision" to remove. The first was ratified in March of 1833. In this Pontotoc Treaty Mississippi land in the Chickasaw nation was to be sectioned off and allotted to individual members of the tribe. The remaining land would be sold by the United States; the profits would finance the purchase of new land and the actual move itself. Thus, Chickasaw Indians would be eligible for Mississippi allotments: "To a single man...one section...to each family of five and under that number, two sections..."(23) The treaty assigned land according to the number of family members and the number of slaves. Article Fourteen of the same treaty confused the issue by designating recipients with the language "each family or individual."(24) For negotiators, the question became what constituted a family? Were individuals to be construed only as men? Certainly the United States government had traditionally defined the citizen as white and male; in rationalizing property ownership, other definitions would not have been considered. But Chickasaw tradition dictated that women hold all property in a matrilineal descent. A controversy naturally ensued.
A subsequent treaty, ratified in July of 1834, settled the matter of those eligible to hold property.(25) In this treaty, all heads of families, "being Indian," regardless of sex, were to receive sections depending on the size of the family and the number of slaves they owned. Also, all persons, male and female, who were not heads of families were to receive an appropriate amount of land; Indian women married to white men fell under this provision. Consequently under the terms of the treaty, any Chickasaw woman married to a white man was allowed to hold land in her own name with no right of alienation enjoyed by her husband.
The issue of who was to receive allotments was further clarified in an 1836 United States Attorney General's opinion rendered by the Honorable Benjamin f. Butler. Disputing a limited interpretation of the definition of "head of family," Butler declared that in the event of a man having more than one wife and separate families, each wife must receive an allotment: "each wife has a separate estate in all the property derived from her relatives or acquired by herself; that the mother is exclusively charged with the support and nurture of the children; that the children do not inherit the property of the father, but that the same goes on his death to his collateral relations." Butler continued: "descents, even in the case of kings, are always traced through the maternal line; that the home of each wife is usually regarded as her own, and so known and distinguished by the community." These women, Butler asserted, should "be regarded as the 'head of a family' under the treaty."(26) Consequently, in the allotment process many women--specifically married women--would receive allotments.
Under the terms of Article Seven of the 1834 treaty, husbands could contract to sell their wives' land only after those women had supplied the agent with written testimony as to their consent and to the competence and prudence of their husbands--a protection typical to coverture transactions. The treaty negotiators assumed that the common law tradition of coverture would apply to the Chickasaw marriages and clearly intended to guarantee Chickasaw women all the protections of that tradition.(27) The issue they did not foresee was whether a Chickasaw woman, with her exceptional cultural tradition, holding legal title in her own name, could sell her allotment free from the restrictions of coverture. That is, could a married Chickasaw woman freely contract without the permission--and protection--of her husband.
It is within the context of allotment treaties as a part of the larger process of Indian removal that the case Fisher V. Allen is to be understood. Elizabeth Love Allen legally contracted the transfer of her slave to her daughter, Susan. Her husband did not; he was bypassed completely. The transaction was made as though there was no coverture at all. Indeed, as far as Chickasaw women were concerned, the concept was an entirely alien one. These rights were upheld not in the more appropriate court of equity but in a common law court: "That although Betsy Love, alias Betsy Allen, was, according to the Indian customs, the wife of James Allen, the defendant in execution, yet according to their laws, she had a right to own separate property, to dispose of it at pleasure, to create debt and in most things act as a feme sole."(28)
The court decreed that the restrictions of coverture did not apply to Elizabeth Love Allen because she was a Chickasaw woman. But more crucially, the protection of coverture need not apply to any Chickasaw woman. The stipulations in the allotment treaty detailing the methods property could be legally sold by married Chickasaw women need not be enforced because Chickasaw women were not "femes covortes" [covertes]; they were "femes soles".(29) Thus, Chickasaw women were free to contract equally with men. They were also equally capable of choosing to sell their allotments and to remove themselves to their new tribal land in the West. As a result, the removal process could proceed all the more smoothly and efficiently.
The skill with which Justices Smith and Sharkey accomplished this was, even by today's standards, remarkable. The case appeared to be decided with a strong anti-creditor bias--crucial for acceptability in Mississippi during the widespread economic dislocations of the Panic of 1837. It concerned a young Chickasaw girl, Susan Allen, whose case was sympathetically upheld. The slave, Toney, returned to his own home. The decision appeared to grant equal status to Indian traditions and the common law. There was no "divesture [sic] of rights;" even the Constitution was upheld. The hand of a benevolent, paternalistic judiciary seemed to extend protection to those least able to defend themselves. Through their decision in Fisher v. Allen. Smith and Sharkey could portray the protections of white woman's coverture as an oppressive fettering of the Indian. Displaying great compassion, the two judges lifted the restrictions and returned the Chickasaw to a more natural tradition that was better suited to a people inexperienced in the more sophisticated, white world.
The 1837 decision allowed Chickasaw women the ability to convey their property freely in an unrestricted, traditional, matrilineal descent. But that was not the reason they were unfettered. Indeed, by removing the protection of coverture, the decision gave the Chickasaw women the right to convey their property freely to the increasing numbers of white land speculators gathering in the Chickasaw nation. That freedom made the choice of the land sale and the move West seem to be the inevitable, if lamentable, result of natural market forces rather than the design of those white speculators. In Fisher v. Allen, Smith and Sharkey provided the legal language that made their groundbreaking interpretation seem fair and just. But behind the rhetorical smokescreen, Chickasaw women, arguably the most vulnerable members of society, found themselves stripped of the fundamental protection afforded by the common law to all white, married women--the protection of coverture that negotiators had intended to guarantee in the Seventh Article of the amended Pontotoc Treaty ratified July 1, 1834.
That same treaty detailed several other ways that the Chickasaw were to be protected from unscrupulous predators in the land business. The most important of these protections appeared in Article Four: "Many of their people are quite competent to manage their affairs, though some are not capable, and might be imposed on by designing persons; it is therefore agreed that the reservations hereinafter admitted shall not be permitted to be sold...unless it appear by the certificate of at least two of the following persons, to-wit: Ish-ta-ho-ta-pa the king, Levi Colbert, George Colbert, Martin Colbert, Isaac Albertson, Henry Love, and Benjamin Love." In addition to these endorsements, an individual needed the permission of the agent, and, at least symbolically, permission of the President of the United States. This delegation was also to supervise the sale of land belonging to orphans.(30)
The legal assault on the protections granted in this treaty continued with the case Anderson and Orne v. Lewis and Niles.(31) This chancery case is updated as recorded, but the dispute arose over an allotment granted in October of 1837. In this case, a Chickasaw woman, Ta-na-cha, was enrolled and located on a section of land on October 6, 1837. On October 7, 1837 she deeded the property to one of the complainants. The dispute itself arose between two rival speculators; one can only surmise the fate of Ta-na-cha. The speculators each had a deed. One was legally certified but apparently fraudulent; the other, while not fraudulent, was not certified by the chiefs in the stipulated way. It was not signed by the agent. Neither was the deed in question even filled in; it was merely signed. In his decision establishing the uncertified deed as the valid one, the Chancellor wrote: "That the sale by the Indian woman, even before her location was completed, gave the complainants an equitable title. That the title was not forfeited by the failure of the complainants to obtain the several certificates and approval required by the treaty..." The tribal leaders, the Chancellor asserted were, "not erected into a tribunal." He further wrote: "The complainants allege that the defendants' deed is void, because it was in blank when it was signed; and was afterwards filled up with the designation of the land in controversy. The defendants have failed to distinguish between the effect of signing and of the delivery of a deed.....although it may have been in blank when signed, yet if filled up when delivered, it would be valid."(32)
The case was appealed to the High Court where Chief Justice Sharkey found the deed to be valid. The deed, he stated, was presumed to have existed prior to certification, that certifications were "mere requisites or links in the chain of conveyance. These certificates," he continued, "were mere preliminaries to a sale, and not even obligatory on any one, as the President still had the power to approve or disapprove the sale."(33) In the process, Sharkey also restated the validity of the blank signed deed.
These cases undermined all Chickasaw protection as stipulated in their 1834 allotment treaty. With a rhetorical patina, Mississippi jurists appeared to protect the Indians while at the same time facilitating the sale of their property. Yet these Mississippi judges were not plotting with conscious malice. On the contrary, they honestly believed they were protecting the Indian people. With their benevolent paternalism, these justices formed an important component in the transformation of the Indian. It was crucial to white sensibilities that Indians freely choose their own fate. In order for the Chickasaw to contract the sale of their property and move West, their legal status had to evolve rapidly. Both Chickasaw men and, because of their unusual cultural heritage, Chickasaw women needed to become free and independent contractors. By interpreting protections, such as coverture and the certification of deeds, as restrictions to the ability to contract freely, the judiciary provided precedents that hurried the Indian along the road to participation in the market world. At the same time, the compassion with which jurists ruled veiled their intentions, more than likely, even from themselves. And no doubt, the "choice" that jurists facilitated was, in their view, in the best interests of the Indians. With their freely chosen removal as encouraged by liberal interpretations of the law, these people would remain safe from the onslaught of the harsh world until they were able more clearly to understand its dangers.
That the richest land in North America would be used in a more systematic, profitable way only confirmed the capitalistic concept of a commonality of interest--even between white and Indian. Justice Sharkey, a proponent of an active court, encouraged such civic progress. In an 1840 opinion, Justice Sharkey wrote: "That all contracts which are against public policy are absolutely void, is a proposition undeniably true. Why I would ask are they so? The answer is plain; because the public have an interest in the subject matter of the contract...In cases of this description, public policy is in reality the leading object to the adjudication, and it is made exclusively with a view to guard that policy."(34) Indian removal was an integral part of such a policy. Alexis de Tocqueville was certainly correct when he wrote that American conduct toward Indian tribes was characterized with a "singular attachment to the formalities of the law." Americans deprived Indians of their rights "with singular felicity, tranquilly, legally, philanthropically, without shedding blood, and without violating a single great principle of morality in the eyes of the world."(35)
The truth of Tocqueville's observation became manifestly clear in Mississippi in 1854 with another case involving William Sharkey. This time however Sharkey--having resigned as Chief Justice four years earlier--represented a Choctaw woman in matter involving coverture.(36) In this case, Turner v. Fish, a white man, Freeman J. Smith, and his Choctaw wife, Eliza resided within the Choctaw Nation. The allotment treaty for the Choctaw, the treaty of Dancing Rabbit Creek, had designated land for each Choctaw head of family. Freeman Smith filed for the allotment that he subsequently sold and deprived his wife and children of the proceeds from the sale. Though Sharkey argued forcibly for the interpretation that would designate "Choctaw" as having precedence over "head of family," the judge in the case found in favor of the husband's right to sell. Clearly denying the precedent in Fisher v. Allen, the Justice rendered his opinion: "It is unquestionably true, that the treaty has reference to the head of a family living under the dominion of the Choctaw nation; but the treaty does not say that a white man may not, according to the usages and customs of that nation, be the head of a family." He responded to the argument of matrilineal custom: "The court can only take judicial notice of the law...It can take no judicial notice of local custom."(37)
How can this seeming inconsistency be explained? The answer may well lie in the fact that by 1854, virtually all of the land of the Choctaw and Chickasaw had been sold. These people had already made their individual "decisions" to succumb to the market and to migrate westward. When the Court made its decision, there was no longer any need for Indian women to contract individually without the consent of their husbands. The greater "good" of land sale had been accomplished. The goal in Mississippi had not been equal rights for Indian women, certainly not protection for Indian women; the state wanted to free the land that these women possessed for sale. To acquire that, it was willing to be infinitely flexible in granting the right to convey that land. Once the state accomplished its objectives, the courts found that those rights need no longer apply. They were eager to reestablish a more "natural order"--the patriarchy to which they were accustomed.
The traditional matrilineal proprietorship of land had exposed the most vulnerable members of the society to market pressure that facilitated removal. And yet the Chickasaw remained committed to their tradition. In 1855, in their new land, the Chickasaw people drafted a constitution. In the General Provisions, Section Three, they wrote: "All property, both real and personal, of the wife, owned and claimed by her before marriage, and that acquired afterwards, by gift, devise, or descent, shall be her separate property."(38)
Elizabeth Love Allen did not live to see this constitutional provision enacted. She died in 1837, shortly after Judge Sharkey rendered his decision in Fisher v. Allen. Her status as feme sole had been remarkably short-lived. Her estate held an original value of over $10,000, though this was depleted in the twenty years of its probate. She left three hundred acres of land in Mississippi and Tennessee--some on the Natchez Trace. The proceeds from the sale of her slaves brought the estate $5,000.(39) With the subsequent passage of the Mississippi Women's Act of 1839, Elizabeth Love Allen's daughters would be able, by law, to own their property free of the credit obligations of their husbands--a right they had held previously only under equity. The crucial point to understand though, is that women, even Chickasaw women, already had the right to control their own property under a very accessible and strong Mississippi equity tradition.(40) Why was it necessary, then to liberate the women of Mississippi--to grant them equality? Why were they given property rights eighty years before they had any political rights with which to protect themselves?
A nation ideologically premised on individual property rights could not arbitrarily appropriate those rights, even from a people they considered only marginal occupants. Nor could that nation simply usurp land because the original inhabitants had an entirely different cultural concept of "ownership." To satisfy white sensibilities, the tribes of the Southeast had to choose to sell their homeland. But such a liberal perspective had not prepared whites for the matriarchy they encountered in Mississippi. As the Chickasaw negotiated section after section of land to be allotted to married women, Blackstone's reproof of coverture as a "great clog to alienation" became vividly salient.(41) Mississippi judges first struck down coverture not in response to women's demands, nor out of any reform impulse; women acquired property rights initially because they were Indian women. Indians were granted property rights only because the rationalized process of removal required that they freely contract to sell their land--land they had only recently "owned." With their new status, Indian women were free to own property--a concept only slightly removed from the proprietorship they had enjoyed for countless generations. Yet the difference proved crucial. Now they were also legally free to sell that property. Indeed, this was the very reason they "owned" it in the first place. In the case Fisher v. Allen, Chickasaw women found that none of the protections enjoyed by white women would apply to them even though those safeguards had been carefully negotiated in their allotment treaty. Their right to alienate their traditional homeland was secure. The law had helped stack the deck, making the Indian "decision" to sell their land and migrate to the West seem to be a "choice" freely made--a sad, but unavoidable result of the collision of a primitive people with the pressure of a modern and free market world. By using such ideologically loaded phrases as "full protection of the law," and by not "violat[ing] the sanctity of private property," the benevolent and just court obscured white intent and, ultimately, absolved itself of any responsibility for the diaspora of native America.(42)
The white settlers of Mississippi found it in their financial interest to exploit the separate legal identity of Indian women by temporarily removing their coverture. In due time, the idea translated into laws concerning white women. The distress resulting from the Panic of 1837 left few Mississippi households untouched. A great many legally adroit, masculine, Southern minds found that by granting their wives a separate legal identity by law, they could shelter assets from hungry creditors. Thus, in February, 1839, the Mississippi legislature passed the Mississippi Women's Law, the first of the married women's property reform acts passed in the United States during the middle of the nineteenth century.(43) This legislation exempted married women's property from the creditors of their husbands by allowing them to "become seized or possessed of any property, real or personal, by direct bequest, demise, gift, purchase, or distribution, in her own name, and as of her own property."(44) The codification process released women, in small measure from the confines of coverture. White Mississippi women now found themselves with the same rights that had been extended to Indian women: equality, but only in a contractual, non-political sense.
This "equality," however, had been extended in response to a particular threat, at a particular time, in order to ease financial pressure on white males. The rights granted to women came in the absence of any organized feminist movement in a patriarchal society with no hint of any attending political rights with which to protect their interests. To understand more fully the implications of their new status, the white women of Mississippi might have looked westward, to the experience of their Indian predecessors in the free market world. Instead, most accepted the illusory language of the law. This benevolent rhetoric reassured them, as it had the Chickasaw, that the paternalistic usurpation of their legal identity was in their own interest, that their new-found vulnerability to market forces was actually liberation, and most dubitatively, that the erosion of equitable safeguards would usher in a new era of equality for women under the law. In reality, their new liberalism, suffused as it was with patriarchal ideology, provided both the white women and the Indian women of Mississippi with all the freedom their benefactors needed.
1. The introductory paragraph synthesizes information from several sources including the local history accounts found in E.T. Winston's The Story of Pontotoc (1931); Callie B. Young's From These Hills: a History of Pontotoc County; H.B. Cushman's History of the Choctaw, Chickasaw and Natchez Indians (1899). Also included is information gathered orally from Pontotoc County Extension Agent Gale Crestman, from Pontotoc local researcher Hazel Boss Neet, and from Richard Pailes, Professor of Anthropology, University of Oklahoma.
2. Laws of the State of Mississippi: Passed at the Adjourned Session of the Legislature, 1839, 72. The Married women's property acts were the major women's reform enacted in the antebellum period. Prior to the passage of these acts women were restricted by the English common law tradition of coverture. A feudal vestige, coverture brought women under the legal identity of her husband. She could not independently own property, contract its purchase or sale, sue or be sued, control any earnings, maintain custody of children, or execute a will under the common law. These reform acts sought to mitigate those restrictions and were part of a Jacksonian codification movement. Richard H. Chused, "Married Women's Property Law: 1800-1850," The Georgetown Law Journal (June, 1983): 1359-1425 and Elizabeth Bowles Warbasse, The Changing Legal Rights of Married Women (New York: Garland Press, 1987) discuss the Southern origins of these acts. Early legislatures to enact property reform included those of Arkansas (1835), Mississippi (1839), Maryland (1842), Kentucky (1845), and Alabama (1846-8). Background to the era of reform is extensively researched by Marylynn Salmon, Women and the Law of Property in Early America (Chapel Hill: University of North Carolina Press, 1986). See also Kay Ellen Thurman, The Married Women's Property Acts, Master of Law thesis, University of Wisconsin, 1973. Several excellent state studies include Norma Basch, In the Eyes of the Law: Women, Marriage, and Property in Nineteenth-Century New York (Ithaca: Cornell University Press, 1982) and Peggy A. Rabkin, Fathers to Daughters: The Legal Foundation of Female Emancipation (Westport, Conn.: Greenwood Press, 1980); also Kathleen Elizabeth Lazarou, Concealed Under Petticoats: Married Women's Property and the Law of Texas 1840-1913 (New York: Garland Press, 1986); Michael Dougan, "The Arkansas Married Women's Property Law," Arkansas Historical Quarterly 46 (1987), 14-16; and Sandra Moncrief, "The Mississippi Married Women's Property Act of 1839," The Journal of Mississippi History (May, 1985), 110-125. Other significant sources include: Suzanne Lebsock, "Radical Reconstruction and the Property Rights of Southern Women," The Journal of Southern History (May 1977), 195-216; and Richard H. Chused, "Late Nineteenth Century Married Women's Property Law: Reception of the Early Married Women's Property Acts by Courts and Legislatures," The American Journal of Legal History (January 1985), 3-35. For the economic impact of the Acts see: Carole Shammas, "Re-assessing the Married Women's Property Acts," Journal of Women's History (Spring 1994), 9-30. To place the property acts in the perspective of other family law in the nineteenth century, particularly the concept of an emerging "judicial patriarchy," see Michael C. Grossberg, Governing the Hearth: Law and the Family in Nineteenth-Century America (Chapel Hill, University of North Carolina Press, 1985). For general historical perspective see Lawrence M. Friedman, A History of American Law (New York: Simon and Schuster, 1973), 208-211.
3. Fisher v. Allen, Howard II, 611 (1837).
4. Arrell M. Gibson, The Chickasaws. (Norman: University of Oklahoma Press, 1971), 140.
5. Charles Hudson, The Southeastern Indians. (Knoxville: University of Tennessee Press, 1976). According to Hudson the Chickasaw shared with other tribes of the Southeast a strong matrilineal tradition that included women having all proprietary interest in the land and in their homes. They engaged in all agricultural activities, usually to the total exclusion of their husbands. All property descended through their line rather than that of their husband. Additionally women could have a certain degree of political power including a seat at the council, and on rare occasion, they were chiefs. See also Theda Perdue, "Southern Indians and the Cult of True Womanhood," in Walter J. Fraser, R. Frank Saunders, and Jon L. Wakelyn, ed. The Web of Southern Social Relation: Women, Family, and Education. (Athens: University of Georgia Press, 1985).
6. The case Fisher v. Allen gives both John and James as the name of Elizabeth Love Allen's husband. Local historians have assumed that Elizabeth was married to the agent John L. Allen, but there are compelling reasons to believe that was not true. John Allen was married to Margaret Allen at the time of the signing of the allotment treaty in 1834; he was still married to her in a court case in 1840. There is also reason to believe that by the time of the case Fisher v. Allen, Elizabeth's husband was dead. Also Don Martini's Chickasaw Empire, a history of the Colbert family, states that Martin Colbert's wife was Sally Allen, daughter of James and Betsy Allen. Of course there is certainly a possibility that John L. Allen had two Chickasaw wives. According to Lynne Mueller, research librarian in the special collections of Mississippi State University Library, Allen was the most common surname in old Monroe County, now Pontotoc.
7. Laws of the State of Mississippi passed at the Twelfth Session of the General Assembly held in the Town of Jackson, 1829, 81.
8. Michael Paul Rogin, Fathers and Children: Andrew Jackson and the Subjugation of the American Indian (New York: Alfred A. Knopf, 1975), 75-206. See also Mary Elizabeth Young, Redskins, Ruffleshirts, and Rednecks: Indian Allotments in Alabama and Mississippi, 1830-1860 (Norman: University of Oklahoma Press, 1961); Mary E. Young, "Indian Removal and Land Allotment: The Civilized Tribes and Jacksonian Justice," American Historical Review, LXIV (Oct, 1958), 31-45; and Mary Elizabeth Young, "The Creek Frauds: A Study in Conscience and Corruption," Mississippi Valley Historical Review (December, 1955), 411-437.
9. Allen to Eaton, March 1, 1830, Letters Received, Office of Indian Afairs, 1824-81, Chickasaw Agency, National Archives, Microcopy 234, roll 136. See also Sandra Moncrief, "The Mississippi Married Women's Property Act of 1839," The Journal of Mississippi History, XLVII No. 2 (May, 1985), 116.
10. Allen to Jackson. January 9, 1814. Letters of Andrew Jackson, Series One, Reel Fourteen.
11. Allen to Eaton, February 7, 1830. Letters Received, Office of Indian Affairs, 1824-81, Chickasaw Agency, National Archives, Microcopy 234, Roll 136.
12. Chickasaw Council to Jackson, Letters Received, Office of Indian Affairs, 1824-81, Chickasaw Agency, National Archives, Microcopy 234, Roll 136.
14. Constitution, Laws and Treaties of the Chickasaws (Sedalia, Missouri: Sedalia Democrat company, 1878), 163-185. See also Young, Redskins, Ruffleshirts, and Rednecks, 39-46.
15. Fisher v. Allen, Howard II, 611 (1837).
16. The common law concept of marital unity made the wife's property liable for the debts of the husband. This was frequently visited on the next generation. Mississippi Orphan's Court was filled with cases of children whose mothers had remarried men in debt. When these women died, their property legitimately went to the new husbands' creditors, leaving the estate originally held by the children's own father subject to the debts of their stepfather.
17. Fisher v. Allen, Howard II, 615-616.
18. Equity refers to a parallel system of jurisprudence that developed alongside the common law in England beginning in the fourteenth century. Equity considered more than rigid precedent, tempering justice with "the sweetness of mercy." Because of its flexibility, equity procedures, primarily dispensed through the Court of Chancery, granted married women a legal identity. With equity's "child"--the trust, married women, from the time of the Tudors, could protect their assets from acquisitive, irresponsible, or just unlucky husbands. See Maria Cioni, Women and Law in Elizabethan England with Particular Reference to the Court of Chancery. (New York: Garland Publishing, 1985). The Court of Chancery, with judge-made law, was seen by many as an arbitrary body. Discretionary power accorded the Lord Chancellor by the Stuart kings in the early seventeenth century resulted in the complete abandonment of that court by early Puritan colonists in America. See William E. Nelson, The Americanization of the Common Law: The Impact of Legal Changes on Massachusetts Society, 1760-1870 (Cambridge: Harvard University Press, 1975). Other colonies, particularly the Southern ones that were established with economic motives, needed the flexibility that the Chancery provided. With this flexibility came wider opportunity for women to have legal rights outside the vestigial feudal restrictions of coverture. The best source on the history of equity remains the generative work of Mary R. Beard, Women as Force in History: A Study in Traditions and Realities (New York: Macmillan Co., 1946). See also: Suzanne Lebsock in The Free Women of Petersburg: Status and Culture in a Southern Town, 1784-1860 (New York: W.W. Norton and Co., 1984). Chapter 3 offers a particularly cogent explanation of the evolution and expansion of equity over the first decades of the nineteenth century in Virginia and is of particular value in understanding the Southern use of equity. Marylynn Salmon, Women and the Law of Property, chapters five and six discuss the uneven application of equity in the colonies and how that influenced the legal status of women and property. Mississippi had a strong tradition of equity jurisprudence, often hearing cases involving married women.
19. The issue of sovereignty was at the heart of the controversy of removal. In 1827, the Cherokee had declared themselves to be a sovereign nation. When Georgia extended its sovereignty over the Cherokee in 1830, clarification became necessary. Treaty negotiations from colonial times had been based on the premises that both parties were sovereign powers, that the tribes had transferable title to their land, and that the federal government, not the individual would negotiate the conveyance of title. John Marshall had attempted further articulation in Fletcher v. Peck (1910) and Johnson v. McIntosh (1823). But beginning in 1830, Marshall heard--or refused to hear--three cases that permanently left their imprint on federal Indian policy. In the case State v. George Tassels (1830), the Supreme Court unsuccessfully attempted to intervene in the Georgia execution of a Cherokee tribal member. In the case Cherokee Nation v. Georgia (1831), Marshall denied jurisdiction, but made his famous designation that the Cherokee Nation was a "domestic dependent nation." The Cherokee Nation was neither a foreign nation nor a subject nation; rather its relationship to the federal government was as a ward to a guardian. Finally in Worcester v. Georgia (1832), Marshall refused to uphold Georgia law in the Cherokee nation, stating that the Cherokee Nation was a sovereign entity and had a right to exist as an independent political community. The so-called Marshall trilogy directly confronted the Jackson policy to bring the various tribes under the sovereignty of the states thus pressuring them to remove. With or without his famous response, Jackson refused to enforce the Marshall decisions. See Rennard Strickland, Fire and the Spirits: Cherokee Law from Clan to Court. (Norman: University of Oklahoma Press, 1975). Also see Strickland, "Genocide-at-law: An Historic and Contemporary View of the Native American Experience," University of Kansas Law Review 34 (1986) 713-755. Particularly valuable on the Cherokee decisions is G. Edward White, The Marshall Court and Cultural Change: 1815-1835. (Oxford: Oxford Press, 1988), 714-38. Also Jill Norgren, "The Cherokee Nation Cases of the 1830s," Journal of Supreme Court History (1994), 63-82; Joseph C. Burke, "The Cherokee Cases: A Study in Law, Politics, and Morality," Stanford Law Review (February 1969), 500-531; William F. Swindler, "Politics as Law: The Cherokee Cases," 3 American Indian Law Review (1975), 7-14; Philip P. Frickey, "Marshalling Past and Present: Colonialism, Constitutionalism, and Interpretation in Federal Indian Law," Harvard Law Review (December 1993), 381-440; and Sidney L. Harring, Crow Dog's Case: American Indian Sovereignty, Tribal Law, and United States Law in the Nineteenth Century (Cambridge: Cambridge University Press, 1994), chapter 2.
20. The Courts viewed slaves as property but nonetheless human property; legal action involving slave property reflected this dichotomy. Included in the body of judicial decisions were questions about the legality of slavery, slave trade, slaves as property, the rights of owners, transfer of slaves, warranties, mortgages, hiring, fugitive slaves, property rights of slaves themselves, crimes committed by slaves, crimes committed against slaves, testator rights both for whites and for slaves, and manumission. Mississippi law courts heard case after case in its attempt to legally define the rights of slave and owner; also the Mississippi High Court of Chancery had its own body of precedent regarding slave property. See Meredith Lang, Defender of the Faith: The High Court of Mississippi 1817-1875. (Jackson: University Press of Mississippi, 1977).
21. Ibid., 48-68.
23. Constitution, Laws and Treaties, 164.
24. Ibid. 170.
25. Ibid. 175.
26. 3 Op. Atty Gen. 41; 1836 U.S. AG LEXIS 73.
27. Historically, the restrictions of coverture were viewed as protections for women. Blackstone described coverture as a "wing, protection, and cover." In the legal fiction of unity between husband and wife, the dangers that we see so clearly today were not so apparent in a pre-modern context. Husbands gained control of wives property through coverture, but they also gained responsibilities for providing a living, guaranteeing dower, and assuming her debts. She had to release her rights to dower when he sold his property. Only with the expansion of the market economy and a broader base of property ownership did these protections come to seem restrictive. Norma Basch, In the Eyes of the Law, chapter 2, interprets Blackstone particularly well on this balance of responsibility.
28. Fisher v. Allen, Howard II, 615.
30. Constitution, Laws, and Treaties, 174.
31. Anderson and Orne v. Lewis and Niles, Freeman I, 178.
32. Ibid., 187.
33. Ibid., 205-206.
34. Lang, Defender of the Faith, 55.
35. Alexis de Tocqueville, Democracy in America Volume I. (New York: Vintage, 1945), 369.
36. Turner v. Fish, Cushman VI, 306 (1854).
37. Ibid., 315.
38. Constitution, Laws and Treaties, 15. This Chickasaw Constitution guarantees property rights to women but also, for the first time, restricts suffrage to male tribal members. When Indian and white cultures collide again in the late nineteenth century, whites would again exploit the members of the community least able to defend themselves. See Angie Debo, And Still the Waters Run. (Norman: University of Oklahoma Press, 1940), particularly the chapter entitled "The Grafter's Share."
39. Probate of the estate of Elizabeth Love Allen filed in the County of Pontotoc, Mississippi, August 29, 1837.
40. In fact, Chickasaw women themselves had availed themselves of the Mississippi Chancery. Margaret Allen, the wife of agent John L. Allen had established a trust for her allotment with her husband as trustee. When he violated that trust with poor investments, Margaret Allen took him to court and had him removed as trustee. Historians of women's law always need to question the extent to which such equity procedures had broad applicability. It seems significant that this Indian woman not only had a trust--no doubt to shelter her assets from her husbands debts--but more significantly that she could have this well-connected, white Mississippian removed as trustee in a state court of equity. The Superior Court of Equity upheld the decision. Margaret Allen v. J.L. Allen et. al., Superior Court of Chancery (Jackson) 1842, Case 1629. Complete manuscripts available from Mississippi State Archives. Also see note 18.
41. William Blackstone, Commentaries on the Laws of England, 4 vols. (Oxford, 1765-69), 2:182.
42. Rogin, Fathers and Children, 206-247.
43. The conduit between the Chickasaw nation and the conception and passage of the Mississippi Married Women's Act may have been the dismissed agent Benjamin Fort Smith. Smith had been designated trustee of the estates of his two sisters, Obedience and Piety. Perhaps he was as callous toward their interests as he had been to the Chickasaw. Piety's husband Thomas B.J. Hadley drafted and introduced the bill early in 1839. In its original form, it was a radical document, granting women not only the rights to all their property however, whenever, and from whomever acquired, but also allowing women control over all their wages and income. See Warbasse, The Changing Legal Rights of Women. Obedience's husband, Hiram Runnels was governor of Mississippi and eventually migrated to Texas where he helped draft the 1845 Texas constitution, the first in the nation to grant women the right to their own property independent of their husbands. See Moncrief, "The Mississippi Married Women's Property Act of 1839," 1123-4.
44. Laws of the State of Mississippi: Passed at the Adjourned Session of the Legislature, 1832, 72.