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The series of treaties concluded in 1866 with the five principal tribes in Indian Territory all contained limited concessions of right of way for railroads through their country to the State of Texas. The eleventh article of the Cherokee treaty contained a grant of right of way 200 feet in width to a contemplated railroad through their domain from north to south and also from east to west. In pursuance of these treaty concessions, as essentially a part of the same scheme, Congress, by appropriate legislation,672 granted public lands and privileges to the Kansas and Neosho, the southern branch of the Union Pacific, and the Atlantic and Pacific Railroad Companies, respectively, for the construction of their roads. The Leavenworth, Lawrence and Fort Gibson Railroad was also conceded like privileges. The stipulated point of entering the Indian Territory was in each case the west bank of Neosho River, where it crosses the Kansas line. As there seemed to be some question whether more than one line of road would be permitted to traverse the Territory in each direction a race was inaugurated between all the north and south lines, each in the effort to outstrip the other in reaching the prescribed point for entering the Indian country. The Union Pacific Southern Branch (subsequently known as the Missouri, Kansas, and Texas) Railway Company, in the fervency of their desire to reach the line first, omitted the construction of a portion of their route, and began operations within the limits of the Cherokee country without having received the previous permission of either the United States or the Cherokee authorities so to do. To this conduct the Cherokees made vigorous objection, and appealed to the Secretary of the Interior. That officer notified673 the railroad officials that the Cherokees did not recognize their right to so intrude upon the Territory, and that no work of the kind referred to could be permitted therein until the Executive should be satisfied, by evidence submitted in proper manner, that such entry and occupation were in accordance with law. Thereupon the officers and attorneys of the several companies interested appeared and submitted arguments before the Secretary of the Interior on behalf of their respective interests. The point submitted for the consideration of the Secretary and for the determination of the President was, what rights had been given to railroad companies to construct railroads through the Indian Territory and what railroads, if any, were entitled to such privileges and right of way.

On the part of the Indians it was claimed that the whole scheme of treaties and of legislation looked to the construction of but a single trunk road through the Territory from north to south, and, as far as the Cherokee Nation was concerned, for the like construction of but a single road through its territory from east to west. This interpretation of the treaties and the laws was admitted to be the correct one by all the companies but the Missouri, Kansas, and Texas. This company insisted that the meaning of the legislation and of the treaties was to give the right of way to as many roads as might in any manner be authorized by Congress to enter the Territory.

The Secretary of the Interior in his opinion674 expressed an emphatic concurrence in the interpretation insisted upon by the Cherokee delegation. He was further of the opinion that neither of the roads had so far earned a right to enter the Indian country by the construction of a continuous line of road to the legal point of entrance, but that as it might soon be necessary to decide which company should first completely fulfill the conditions of the law, an executive order ought to be issued declaring that no railroad company should be permitted to enter the Territory for the purpose of grading or constructing a railroad until a report should be received from a commission composed of the superintendents of Indian affairs for the central and southern superintendencies designating which company had first reached the line. These views and findings of the Secretary of the Interior were approved by the President and directed to be carried into effect.675

This commission reported676 that the Union Pacific Railway, southern branch—otherwise the Missouri, Kansas, and Texas Railway—reached the northern boundary of the Indian Territory, in the valley of the Neosho River on the west side, and about one mile therefrom, at noon on the 6th day of June, 1870, and that at that time there was no other railroad nearer than 16 miles of that point.

Predicated upon this report, supplemented by the certificate of the governor of Kansas that it was a first class completed railway up to that point, permission was given the Missouri, Kansas, and Texas Railway Company by the President, under certain stipulations and restrictions as to the methods and character of construction, to proceed with the work of building a trunk road through the Indian Territory to a point at or near Preston, in the State of Texas, and the road was rapidly constructed under this authority.

The Atlantic and Pacific road, having no competitor, experienced no difficulty in securing the right of construction of its east and west line through the Cherokee country.