Chapter III: The Confederacy in Negotiation with the Indian Tribes (1)

The provisional government of the Confederate States showed itself no less anxious and no less prompt than the individual states in its endeavor to secure the Indian country and the Indian alliance. On the twenty-first of February, 1861, the very same day that the law was passed for the establishment of a War Department of which Leroy P. Walker of Alabama took immediate charge, William P. Chilton, member[201] of the Provisional Congress from Alabama, offered in that body a resolution to the effect, that the Committee on Indian Affairs be instructed to inquire into the expediency of opening up negotiations with the Indian tribes of the West in relation to all matters concerning the mutual welfare of said tribes and the people of the Confederate States.[202] The resolution was adopted. Four days later, Edward Sparrow of Louisiana asked that the same committee be instructed to consider the advisability of appointing agents to those same Indian tribes.[203] The Indian committee, at the time, was composed of Jackson Morton of Florida, Lawrence M. Keitt of South Carolina, and Thomas N. Waul of Texas. Robert W. Johnson became a member after Arkansas had seceded and had been admitted to the Confederacy.

Preliminary steps such as these led naturally to a comprehension of the need for a Bureau of Indian Affairs[204] and, on the twelfth of March, President Davis recommended[205] that one be organized and a commissioner of Indian affairs appointed. His recommendations were acted upon without delay and a law[206] in conformity with them passed. This happened on the fifteenth of March and on the day following, the last of the session, Davis nominated David Hubbard,[207] ex-commissioner[208] from Alabama to Arkansas, for the Indian portfolio. For some time, however, Hubbard had little to do.[209] It is wise therefore to leave him for a while and resume the examination of congressional work.

The journal entries through February and March show that the Provisional Congress had, not infrequently, Indian matters placed before it and, at times presumably, communications direct from the tribes. On the fourth of March, Robert Toombs, himself on the Finance Committee and at the same time Secretary of State,[210] offered the following resolution:[211]

_Resolved_, That the President be, and he is hereby authorized to send
a suitable person as special agent of this Government to the Indian
tribes west of the State of Arkansas.

Whether this was called forth by the investigations of the Committee on Indian Affairs under the Chilton resolution of the twenty-first of February or whether it grew out of a correspondence between Toombs and Albert Pike does not appear. Toombs and Pike were friends, brother Masons[212] in fact, and then or soon afterwards in intimate correspondence on the subject of Indian relations. The resolution passed, but there the matter seems to have rested for a time. On the tenth of May, William B. Ochiltree proposed[213] that the Committee on Indian Affairs consider the condition of Reserve Indians in Texas; and, on the fifteenth, a most important measure was introduced[214] in the shape of a bill, reported by Keitt from the Committee on Indian Affairs, "for the protection of certain Indian tribes." This opened up the whole subject of prospective relations with the great tribes of Indian Territory and, taken in connection with the provision for a special commissioner, was fruitful of great results.

On the seventh of May, Thomas A. Harris of Missouri had made the Provisional Congress acquainted with some Choctaw and Chickasaw resolutions,[215] which, in themselves, seemed indicative of a friendly disposition towards the South. This fact lent to the bill for the assumption of a protectorate a large significance. Congress considered it, for the most part, in secret session. The text of the act as finally passed does not appear in any of the published[216] statutes of the Confederate States; but, under the act, Albert Pike, special commissioner for the purpose appointed by President Davis, negotiated all his remarkable treaties with the western tribes. Three sections of the law, those added to the original bill by way of amendment, appear in the Provisional Congress _Journal_.[217] They are strictly financial in their nature and are as follows:

_Sec. 6._ And be it further enacted, That the Confederate States do
hereby assume the duty and obligation of collecting and paying over as
trustees to the several Indian tribes now located in the Indian
Territory south of Kansas, all sums of money accruing, whether from
interest or capital of the bonds of the several States of this
Confederacy now held by the Government of the United States as
trustees for said Indians or any of them; and the said interest and
capital as collected shall be paid over to said Indians or invested
for their account, as the case may be, in accordance with the several
treaties and contracts now existing between said Indians and the
Government of the United States.

_Sec. 7._ That the several States of this Confederacy be requested to
provide by legislation or otherwise that the capital and interest of
the bonds issued by them respectively, and held by the Government of
the United States in trust for said Indians, or any of them, shall not
be paid to said Government of the United States, but shall be paid to
this Government in trust for said Indians.

_Sec. 8._ That it shall be the duty of the Commissioner of Indian
Affairs to obtain and publish, at as early a period as practicable, a
list of all the bonds of the several States of this Confederacy now
held in trust by the Government of the United States as aforesaid, and
to give notice in said publication that the capital and interest of
said bonds are to be paid to this Government and to no other holder
thereof whatever.

Before this bill for the protection of the Indians had come up for discussion or had even emerged from the rooms of the Committee on Indian Affairs, Albert Pike, in letters to Toombs and R. W. Johnson, had pointed out most emphatically the military necessity of securing[218] the Indian country. His conviction was strong that the United States had no idea of permanently abandoning the same but would soon replace the regular troops, it had withdrawn from thence, by volunteers. Pike discussed the matter with N. Bart Pearce and the two agreed[219] that there was no time to lose and that something must be done forthwith to prevent the possibility of Federal emissaries gaining a foothold among the great tribes; for, if they did gain such a foothold, their influence was likely to be very great, especially among the Cherokees who might be regarded as predisposed to favor them, they having many abolitionists on their tribal rolls. Whether, at so early a date, Pike thought formal negotiation, as had been customary, the preferable method of procedure, we are not prepared to say, positively. Formal negotiation was scarcely consistent with the southern argument of Jackson's time or consonant with present state-rights doctrine. When writing[220] to Johnson on the eleventh of May, Pike seems to have been thinking simply of Indian enlistment and of the use of white and red troops in the defense of the Indian country. At that date his own appointment[221] as diplomatic agent for the negotiation of treaties of amity and alliance was certainly not prominently before him. He expressed himself to Johnson in such a way, indeed, as would lead us to suppose that the position he half expected to get, and did not altogether want, was that of commander of an Indian Department which he hoped would be created.

For such a position Pike was not entirely unfitted. He had served in the Mexican War and had attained the rank of captain; but his tastes were certainly not what one would call military. He was a poet[222] of acknowledged reputation and a lawyer of eminence. Arkansas had recognized him as one of her foremost citizens by sending him as her one and only delegate to the Commercial Convention[223] of Southern and Western States, held at Charleston, South Carolina, April, 1854. Just recently, at the time when the question of secession was before the people of Arkansas, he had issued a pamphlet, entitled, _State or Province, Bond or Free_, described by a contemporary as, "a most specious argument for secession, but a re-production of the political heresies, that thirty years ago called down on John C. Calhoun, the anathema maranatha of Andrew Jackson."[224] To the men of his time, it seemed all the more astonishing that Albert Pike should take such a pronounced stand on the subject of state rights, not because he was a New Englander by birth, for there were many such in Arkansas and in the ranks of the secessionists, but because he was the author of that stirring poem against the idea of national disintegration, published some time before under the title of, "Disunion."[225]

On the twentieth of May, Pike wrote[226] again to Toombs and by that time he certainly knew[227] of his commission to treat with the Indian tribes, but had apparently not received any very definite instructions as to the scope of his authority. One little passage in the letter brings out very clearly the essential fair-mindedness of the man, a marked characteristic in all[228] his dealings with the Indians, but at once his strength and his weakness. He succeeded with the red man for the very same reason that he failed with the white, because he gave to the Indians the consideration and the justice which were their due. This is the significant passage from his letter to Toombs:[229]

I very much regret that I have not received distinct authority to give
the Indians guarantees of all their legal and just rights under
treaties. It cannot be expected they will join us without them, and it
would be very ungenerous, as well as unwise and useless, in me to ask
them to do it. Why should they, if we will not bind ourselves to give
them what they hazard in giving us their rights under treaties?

As you have told me to act at my discretion, and as I am not directed
not to give the guarantees, I shall give them, formal, full, and
ample, by treaty, if the Indians will accept them and make treaties.
General McCulloch will join me in this, and so, I hope and suppose,
will Mr. Hubbard, and when we shall have done so we shall, I am sure,
not look in vain to you, at least, to affirm these guarantees and
insist they shall be carried out in good faith.

There was an implied doubt of Hubbard in Pike's reference to him and a single future declaration almost justified the doubt, notwithstanding the fact that Hubbard was supposed to have been chosen as commissioner of Indian affairs because of his "well known sympathy for the Indian tribes and the deep concern" he had ever "manifested in their welfare." Hubbard's official position was that of Commissioner of Indian Affairs; but the unorganized character of the Confederate administration in early 1861 is well attested by the way Secretary Walker confounded the name and functions of that office with those of an ordinary superintendent. On the fourteenth of May, he addressed Hubbard as "Superintendent of Indian Affairs" and instructed him

To proceed to the Creek Nation, and to make known to them, as well as
to the rest of the tribes west of Arkansas and south of Kansas ... the
earnest desire of the Confederate States to defend and protect them
against the rapacious and avaricious designs of their and our enemies
at the North.... You will, in an especial manner, impress upon the
Creek Nation and surrounding Indian tribes the imperious fact that
they will doubtless recognize, that the real design of the North and
the Government at Washington in regard to them has been and still is
the same entertained and sought to be enforced against ourselves, and
if suffered to be consummated, will terminate in the emancipation of
their slaves and the robbery of their lands. To these nefarious ends
all the schemes of the North have tended for many years past, as the
Indian nations and tribes well know from the character and conduct of
those emissaries who have been in their midst, preaching up abolition
sentiments under the disguise of the holy religion of Christ, and
denouncing slaveholders as abandoned by God and unfit associates for
humanity on earth.

You will be diligent to explain to them, under these circumstances,
how their cause has become our cause, and themselves and ourselves
stand inseparably associated in respect to national existence and
property interests; and in view of this identification of cause and
interests between them and ourselves, entailing a common destiny, give
to them profound assurances that the Government of the Confederate
States of America, now powerfully constituted through an immense
league of sovereign political societies, great forces in the field,
and abundant resources, will assume all the expense and responsibility
of protecting them against all adversaries....

Give them to understand, in this connection, that a brigadier-general
of character and experience has been assigned to the military district
embracing the Indian Territories south of Kansas, with three regiments
under his command, while in Texas another military district has been
formed....

In addition to these things, regarded of primary importance, you will,
without committing the Government to any especial conduct, express our
serious anxiety to establish and enforce the debts and annuities due
to them from the Government at Washington, which otherwise they will
never obtain, as that Government would, undoubtedly, sooner rob them
of their lands, emancipate their slaves, and utterly exterminate them,
than render to them justice. Finally, communicate to them the abiding
solicitude of the Confederate States of America to advance their
condition in the direction of a proud political society, with a
distinctive civilization, and holding lands in severalty under
well-defined laws, by forming them into a Territorial government; but
you will give no assurance of State organization and independence, as
they still require the strong arm of protecting power, and may
probably always need our fostering care; and, so far as the agents of
the late Government of the United States may be concerned, you will
converse with them, and such of them as are willing to act with you in
the policy herein set forth you are authorized to substantiate in the
employment of this Government at their present compensation....[230]

Hubbard's mission to the west was quite independent[231] of Pike's, although both missions were undoubtedly part of the one general plan of securing as quickly, as surely, and as easily as possible the friendly cooperation of the Indians. At about the same moment that they were devised, the Confederacy took yet another means of accomplishing the same object and one referred to in the letter of Secretary Walker just quoted. On the thirteenth of this same month of May, 1861, it assigned Brigadier-general Ben McCulloch "to the command of the district embracing the Indian Territory lying west of Arkansas and south of Kansas." McCulloch's orders[232] were "to guard that Territory against invasion from Kansas or elsewhere," and, for the purpose, in addition to three regiments of white troops, "to engage, if possible, the service of any of the Indian tribes occupying the Territory referred to in numbers equal to two regiments."

Hubbard's part in the prosecution of this great endeavor may as well be disposed of first. It was of short duration and seemingly barren of direct results. Hubbard was long in reaching the western boundary of Arkansas. On the way out he was seized with pneumonia and otherwise delayed by wind and weather. On the second of June he was still in Little Rock, apparently much more interested[233] in the local situation in Arkansas than in the real object of his mission. His intention was to "go up the river to Fort Smith," June third. From that point, on the twelfth, he addressed the Cherokee chief, John Ross, and the Confederate general, Ben McCulloch. The letter was more particularly meant for the former.

As Commissioner of Indian Affairs of the Confederate States it was my
intention to have called upon you and consulted as to the mutual
interests of our people. Sickness has put it out of my power to
travel, and those interests require immediate consideration, and
therefore I have determined to write, and make what I think a plain
statement of the case for your consideration, which I think stands
thus: If we succeed in the South--succeed in this controversy, and I
have no doubt of the fact, for we are daily gaining friends among the
powers of Europe, and our people are arming with unanimity scarcely
ever seen in the world before--then your lands, your slaves, and your
separate nationality are secured and made perpetual, and in addition
nearly all your debts are in Southern bonds, and these we will also
secure. If the North succeeds you will most certainly lose all. First
your slaves they will take from you; that is one object of the war, to
enable them to abolish slavery in such manner and at such time as they
choose. Another, and perhaps the chief cause, is to get upon your rich
lands and settle their squatters, who do not like to settle in slave
States. They will settle upon your lands as fast as they choose, and
the Northern people will force their Government to allow it. It is
true they will allow your people small reserves--they give chiefs
pretty large ones--but they will settle among you, overshadow you, and
totally destroy the power of your chiefs and your nationality, and
then trade your people out of the residue of their lands. Go North
among the once powerful tribes of that country and see if you can find
Indians living and enjoying power and property and liberty as do your
people and the neighboring tribes from the South. If you can, then say
I am a liar, and the Northern States have been better to the Indian
than the Southern States. If you are obliged to admit the truth of
what I say, then join us and preserve your people, their slaves, their
vast possessions in land, and their nationality.

Another consideration is your debts, annuities, &c., school funds due
you. Nearly all are in bonds of Southern States and held by the
Government at Washington, and these debts are nearly all forfeited
already by the act of war made upon the States by that Government.
These we will secure you beyond question if you join us. If you join
the North they are forever forfeited, and you will have no right to
believe that the Northern people would vote to pay you this forfeited
debt. Admit that there may be some danger take which side you may, I
think the danger tenfold greater to the Cherokee people if they take
sides against us than for us. Neutrality will scarcely be possible. As
long as your people retain their national character your country
cannot be abolitionized, and it is our interest therefore that you
should hold your possessions in perpetuity.[234]

The effect that such a communication as the foregoing might well have had upon the Indians can scarcely be overestimated. Time out of number they had been over-reached in dealings financial. Only the year before, bonds in which Indian trust funds were invested had been abstracted[235] from the vaults of the Interior Department; and, for this cause and other causes, Indian money had not been readily forthcoming for the much needed relief of Indian sufferers from the fearful drought that devastated Indian Territory, Kansas, and other parts of the great American desert in 1860.

Comment upon Hubbard's letter from the standpoint of historical inaccuracy seems hardly necessary here. Suffice it to say that the distortion of facts and the shifting of responsibility for previous Indian wrongs from the shoulders of Southern States to those of a federal government made up entirely of northern states must have seemed preposterous in the extreme to the Indians. One can not help wondering how Hubbard dared to say such things to the Indian exiles from Southern States and particularly to John Ross who like all of his tribe and of associated tribes was the victim of southern aggression and not in any sense whatsoever of northern.

To Hubbard's gross amplification and even defiance of his instructions, also to his extravagant utterances touching the repudiation of debts and southern versus northern justice and generosity, Chief Ross replied,[236] by way of strong contrast, in terms dignified and convincing:

It is not the province of the Cherokees to determine the character of
the conflict going on in the States. It is their duty to keep
themselves, if possible, disentangled, and afford no grounds to either
party to interfere with their rights. The obligations of every
character, pecuniary and otherwise, which existed prior to the present
state of affairs between the Cherokee Nation and the Government are
equally valid now as then. If the Government owe us, I do not believe
it will repudiate its debts. If States embraced in the Confederacy owe
us, I do not believe they will repudiate their debts. I consider our
annuity safe in any contingency.

A comparison of Northern and Southern philanthropy, as illustrated in
their dealings toward the Indians within their respective limits,
would not affect the merits of the question now under consideration,
which is simply one of duty under existing circumstances. I therefore
pass it over, merely remarking that the "settled policy" of former
years was a favorite policy with both sections when extended to the
acquisition of Indian lands, and that but few Indians now press their
feet upon the banks of either the Ohio or the Tennessee....

Judging from all the instructions that Secretary Walker sent out on Indian matters in May of 1861, it would seem that he had very much at heart the enlistment of the Indians and their actual participation in the war. Mention has already been made of how General McCulloch was told by Adjutant-general Cooper to add, if possible, two Indian regiments to his brigade and of how Walker had written Hubbard urging him to persuade the Indians to join forces and raising the number of Indian regiments desired from two to three. In a similar strain Walker wrote[237] to Douglas H. Cooper on the occasion of definitely asking him to give his services to the South. In all these letters no special stress was laid upon an intention to use the Indians as home guards exclusively. On the contrary, one might easily draw, from the letters, a quite opposite inference and conclude that the Indian troops, if raised, were to be used very generally and exactly as any other volunteers might be used. This is important in view of the stand, and a very positive one it was, that Albert Pike took some time afterwards. In his own letter[238] to Johnson of May 11, 1861, he does not specifically say that the Indian soldiers, whose mustering he has in contemplation, are not to be used outside of the Indian country; but he does insist that that country be occupied by them and by a certain number of white regiments--another important point as subsequent events will divulge.

General McCulloch took up his part of the task of securing the Indians in his own characteristic way. He had great energy and great enthusiasm and both qualities were displayed to the fullest extent on the present occasion. He first laid his plans for taking possession forthwith of the Indian country, it having come to his knowledge that Colonel Emory with the Federal forces had abandoned it.[239] Apparently, it had never occurred to McCulloch that the Indians themselves might be averse to such a proceeding on his part but he was soon made aware of it; for when he consulted[240] with John Ross, he found, to his discomfiture and deep chagrin, that the desire and the determination of this greatest of all the Indians was to remain strictly neutral. On the twelfth of June, McCulloch still further communicated[241] with Ross and informed him that he would respect his wishes in so far as expediency justified but that he would have to insist upon the inherent right of the individual Cherokees to organize themselves into a force of Home Guards should they feel so inclined. Then he closed his letter by this note of warning:

Should a body of men march into your Territory from the North, or if I
have an intimation that a body is in line of march for the Territory
from that quarter, I must assure you that I will at once advance into
your country, if I deem it advisable.

Once again the forbearance of Chief Ross had been put to a severe test, but he none the less replied to McCulloch with his customary dignity. Ross was then at Park Hill, McCulloch at Fort Smith, where he had halted hoping that the permission would be forthcoming for him to cross the line. Ross's reply[242] came by return mail, so to speak, and was dated the seventeenth. It was largely a reiteration of the reasons he had already given for preserving neutrality, but it was also a positive refusal to allow the individual Cherokees to organize a Home Guard. The concluding paragraph gives the lie direct to those intriguing and self-interested politicians who, in later years, endeavored to impugn Ross's sincerity:

Your demand that those people of the nation who are in favor of
joining the Confederacy be allowed to organize into military companies
as Home Guards, for the purpose of defending themselves in case of
invasion from the North, is most respectfully declined. I cannot give
my consent to any such organization for very obvious reasons: First,
it would be a palpable violation of my position as a neutral; second,
it would place in our midst organized companies not authorized by our
laws but in violation of treaty, and who would soon become efficient
instruments in stirring up domestic strife and creating internal
difficulties among the Cherokee people. As in this connection you have
misapprehended a remark made in conversation at our interview some
eight or ten days ago, I hope you will allow me to repeat what I did
say. I informed you that I had taken a neutral position, and would
maintain it honestly, but that in case of a foreign invasion, old as I
am, I would assist in repelling it....

It will develop later how Ross's wishes with respect to the enrollment of Home Guards were successfully and adroitly circumvented, with the connivance of General McCulloch, by men of the Ridge faction in Cherokee politics. From the beginning, McCulloch seemed determined not to take Ross seriously, yet he duly informed Secretary Walker of the turn events were taking. On the twelfth of June, for instance, he wrote[243] to him and gave an account of his recent interview with the Cherokee chief. It was rather a misleading account, however; for it conveyed to Walker the idea that Ross was only waiting for provocation from the North to throw in his lot with the Confederacy. On the twenty-second of June, McCulloch wrote[244] to Walker again and to the same effect as far as his belief that Ross was not sincere in his professions of neutrality was concerned, even though, in the interval between the two letters, he had been carefully corrected by Ross himself and even though he was, at the very time, sending on to Richmond, the correspondence that denied the truth of his own statement. He did, however, add that his belief now was that Ross was awaiting a favorable moment to join forces with the North.

Albert Pike, special commissioner from the State Department of the Confederate States to the Indian tribes west of Arkansas, had accompanied General McCulloch on his visit to Ross, the latter part of May, and had been present at the resulting interview. He had told[245] Toombs that he would leave Little Rock for Fort Smith the twenty-second and go at once[246] to the Cherokee country. At Fort Smith, Pike met McCulloch and the two, seeking the same object, agreed to go forward together,[247] having already been approached by an anti-Ross element of the Cherokee Nation.[248] Ross, as has been shown, insisted upon maintaining an attitude of strict neutrality, which probably did not surprise his interviewers, since, according to Pike's own testimony, he and McCulloch had not gone to Park Hill expecting to be able to effect any arrangement with Chief Ross.[249] Ross, however, did go so far as to promise[250] that within a short while he would call a meeting of the Cherokee Executive Council and confer with it further on the policy to be pursued. Ross doubtless felt that it was a part of political wisdom to do this. His was an exceedingly difficult position; for, within the nation, there was a large element in favor of secession. It was a minority party, it is true; but, none the less, it represented for the most part, the intelligence and the property and the influence of the tribe. Opposed to it and in favor of neutrality, was the large majority, not nearly so influential because made up of the full-bloods and of those otherwise poverty-stricken and obscure. In the light of previous tribal discords, the minority party was the old Ridge, or Treaty, Party, now headed by Stand Watie and E. C. Boudinot, while the majority party was the Ross, or Non-treaty Party. Ross himself, his nephew, William P. Ross, and a few others were the great exceptions to the foregoing characterization of their following. Of sturdy Scotch extraction and honest to the core, they personally stood out in strong contrast to the rank and file of the non-secessionists and it was they who so guided public sentiment that John Ross had the nation back of him when, on May 17, 1861, he issued his memorable Proclamation of Neutrality:[251]

_Proclamation to the Cherokee people_

Owing to the momentous state of affairs pending among the people of
the several States, I, John Ross, Principal Chief, hereby issue this
my proclamation to the people of the Cherokee Nation, reminding them
of the obligations arising under their treaties with the United
States, and urging them to the faithful observance of said treaties
by the maintenance of peace and friendship toward the people of all
the States.

The better to obtain these important ends, I earnestly impress upon
all my fellow-citizens the propriety of attending to their ordinary
avocations and abstaining from unprofitable discussions of events
transpiring in the States and from partisan demonstrations in regard
to the same.

They should not be alarmed by false reports thrown into circulation by
designing men, but cultivate harmony among themselves and observe in
good faith strict neutrality between the States threatening civil war.
By these means alone can the Cherokee people hope to maintain their
rights unimpaired and to have their own soil and firesides spared from
the baleful effects of a devastating war. There has been no
declaration of war between the opposing parties, and the conflict may
yet be averted by compromise or a peaceful separation.

The peculiar circumstances of their condition admonish the Cherokees
to the exercise of prudence in regard to a state of affairs to the
existence of which they have in no way contributed; and they should
avoid the performance of any act or the adoption of any policy
calculated to destroy or endanger their territorial and civil rights.
By honest adherence to this course they can give no just cause for
aggression or invasion nor any pretext for making their country the
scene of military operations, and will be in a situation to claim and
retain all their rights in the final adjustment that will take place
between the several States. For these reasons I earnestly impress upon
the Cherokee people the importance of non-interference in the affairs
of the people of the States and the observance of unswerving
neutrality between them.

Trusting that God will not only keep from our own borders the
desolations of war, but that He will in infinite mercy and power stay
its ravages among the brotherhood of States.

Given under my hand at the executive office at Park Hill this 17th day
of May, 1861.

JNO. ROSS, Principal Chief Cherokee Nation.

The discretion of the Cherokees, their wily diplomacy if, under the circumstances, you should please to call it such, was more than counterbalanced by the indiscretion and the impetuosity of some of their neighbors. It has already been noted how the Chickasaws expressed their southern sympathies in the legislative resolves[252] of the twenty-fifth of May, but not as yet how the Choctaws took an equally strong stand. Both tribes were so very pronounced in their show of affection for the Confederacy that they gave a secessionist color to the whole of the Indian Territory, so much so, in fact, that Lieutenant-colonel Hyams could report[253] to Governor Moore of Louisiana, on the twenty-eighth of May, and upon information given him by some Indian agent.

... That the nations on the borders of this State (Arkansas) are
anxious and desirous to be armed; that they can and will muster into
the service 25,000 men; that they have immense supplies of beeves,
sufficient to supply the meat for the whole Confederate service. All
they ask is arms and enrollment. If within your power to forward their
views with the President, it would be a great step in the right
direction, and erect a more effectual barrier against the Kansas
marauders than any force that could be sent against them, and thereby
protect the northern boundary of both Arkansas and Louisiana. The
reasons why every effort should be made to arm these people (now heart
and soul with us) to defend themselves and us are so palpable, that I
do not attempt to urge them upon you, but do solicit your attention,
so far as is compatible with your high position, to this matter, to
impress its importance on the President, and use your well-known
influence to effect this much desirable result....

General McCulloch, in a letter[254] also of the twenty-eighth of May, more particularly specified the tribes that were friendly to the South, but he too mentioned some of them, the Choctaw and the Chickasaw, as "anxious to join the Southern Confederacy." It should not be a matter of surprise then to find that on the fourteenth of June, George Hudson, principal chief of the Choctaw Nation, acting in accordance with the will of the General Council, which had met four days before, publicly declared[255] the Choctaw Nation, "free and _independent_." The chief's proclamation was, in effect, a conscription act and provided for the enrollment, for military service in the interests of the Confederacy, of all competent males between the ages of eighteen and forty-five years. The General Council had authorized this and had further arranged for the appointment of commissioners "to negotiate a treaty of alliance and amity" with the Confederate States.

Under such conditions, the work of Albert Pike must have seemed all plain sailing when once he was safely beyond the Cherokee limits; but his efforts,[256] vain though they were, to persuade that tribe into an alliance did not end[257] with the first recorded interview with Ross. He kept up his intercourse with the Ridge faction; but finally decided that as far as Ross and the nation as a whole were concerned it would be best to await the issue of events. It was only too apparent to all the southern agents and commissioners that Ross would never yield his opinion unless compelled thereto by one of three things or a combination of any or all of them. The three things were, pressure from within the tribe; some extraordinary display of Confederate strength that would presage ultimate success for southern arms; and encroachment by the Federals. It was the combination that eventually won the day. Pike, meanwhile, had passed on to the Creek country.

At the North Fork Village, in the Creek country, the work of negotiating Indian treaties in the interests of the Confederacy really began and it did not end until a rather long series of them had been concluded. The series consisted of nine main treaties[258] and the nine group themselves into three distinct classes. The basis of classification is the relative strength or power of the tribe, or better, the degree of concession which the Confederacy, on account of that strength or that power or under stress of its own dire needs, felt itself obliged to make. This is the list as classified:

FIRST CLASS

1. Creek, negotiated at North Fork, Creek Nation, July[259] 10, 1861

2. Choctaw and Chickasaw, negotiated at North Fork, July 12, 1861

3. Seminole, negotiated at the Seminole Council House, August 1, 1861

4. Cherokee, negotiated at Tahlequah, Cherokee Nation, October 7, 1861

SECOND CLASS

1. Osage, negotiated at Park Hill, Cherokee Nation, October 2, 1861

2. Seneca and Shawnee, negotiated at Park Hill, October 4, 1861

3. Quapaw, negotiated at Park Hill, October 4, 1861

THIRD CLASS

1. Wichita, etc., negotiated at the Wichita Agency near the False
Washita River, August 12, 1861

2. Comanche, negotiated at the Wichita Agency, August 12, 1861

Although all the treaties, made in 1861 by Albert Pike, were negotiated under authority[260] of the Act of the Provisional Congress of the Confederate States, approved May 21, 1861, by which the Confederacy offered and agreed to accept the protectorate of the Indian tribes west of Arkansas and Missouri, only those made with the great tribes contained a statement,[261] definitely showing that the protectorate had been formally offered, formally accepted and formally assumed. Thus, in a very unequivocal way, Creeks, Choctaws, Chickasaws, Seminoles, and Cherokees, all signified[262] their willingness to transfer their allegiance from the United to the Confederate States. The smaller tribes seem not to have been asked to make the same concession and their nationality was, in no sense, recognized. They acted more or less under duress or compulsion, and the very negotiation of treaties with them was taken as a full compliance with the confederate scheme.

The nationality of the great tribes, or more properly speaking, their political importance, was still further recognized by clauses guaranteeing territorial and political integrity,[263] representation by delegates[264] in the Confederate Congress, and the prospect[265] of ultimate statehood. The guarantee of territorial integrity was, of a certainty, not new. It had been inserted into various removal treaties as a safeguard against a repetition of the injustice that had been meted out to the Indians by the Southern States in Jackson's day. It comprised, in effect, a solemn promise that no state or territorial lines should ever again circumscribe the particular domain of the Indian nation securing the guarantee; and that state or territorial laws, as the case might be, should have no operation within the Indian country. The idea of congressional representation[266] was also not new, but where it had previously been but a promise or a mere contingency, it was now an assured fact, a thing definitely provided for. Ultimate statehood had, however, attached to it the old time elements of uncertainty, which is not at all surprising, considering that Walker, in his instructions[267] to Hubbard, had positively spoken against it.

All the treaties, without distinction of class, recognized the land rights of the Indians and their existing territorial limits, but with the usual restriction upon alienation to foreign powers. A sale or cession to a foreign state, without the consent of the Confederate States, was to result in forfeiture and reversion to the Confederate States. By the Choctaw and Chickasaw Treaty, the arrangement,[268] already satisfactorily reached, for a Chickasaw country distinct from a Choctaw was continued, the Indians of both tribes being given the privilege of having their particular land surveyed and sectionized whenever they might so please, provided it be done by regular legislative process.[269] The same treaty transferred[270] the lease of the Wichita Reserve from the United to the Confederate States and limited it to ninety-nine years. Practically the same bands of Indians were to be accommodated in this Leased District as before; namely, those whose permanent ranges were south of the Canadian or between it and the Arkansas. The New Mexican Indians were still to be absolutely excluded. The Choctaw and Chickasaw Indians reserved the right to pass upon the accommodation of any other Indians than those specifically mentioned in the treaty. The individual bands, so accommodated in the Leased District, were to be settled upon reserves and to hold the same in fee. Finally, the treaty placed,[271] for the time being, the Wichitas and their fellow reservees exclusively under the control of the Confederate States with a limited jurisdiction resting in the Choctaw Nation and a full right of settlement in Choctaws and Chickasaws.

In regard to special features of the land rights of tribes other than those already mentioned, it is well to observe, perhaps, that the title to the reservation then occupied by the Seminoles was admitted to be dependent upon Creek sufferance;[272] that the United States patent of December 31, 1838, was recognized[273] as protecting the Cherokee; and that the Osage lands in Kansas were inferentially covered by the Confederate guarantee, given that tribe, of title in perpetuity.[274] The Confederate States, moreover, agreed to indemnify[275] the Cherokees should their Neutral Lands be lost to them through the misfortune of the war. It is rather interesting to see that this new government, in promising the insignificant tribes a permanent occupancy of their present holdings, made use of the same high-flown, meaningless language that the United States had so long used; but Albert Pike knew better than to assure the truly powerful tribes that they should hold their lands themselves and in common "as long as the grass should grow and the waters run." That language could yet be made appealing and effective, though, in official dealings with weak Wichitas,[276] Senecas, and Shawnees,[277] and, strange as it may seem, even with Creeks.[278] In reciprocal fashion, the wild Comanches could most naively promise[279] to hold the Confederate States "by the hand, and have but one heart with them always."

Speaking of indemnification, we are reminded of other very important financial obligations assumed by the Confederacy when it made its famous treaties with the Indians west of Arkansas. Those financial obligations comprised the payment of annuities due the tribes from the United States in return for land cessions of enormous extent. They also comprised the interest on various funds, such as the Orphan Creek fund, education funds, and the like. Albert Pike had been given no specific authority to do this but he knew well that no treaties could possibly be made without it. It was not very likely that the slaveholding tribes would surrender so much wealth for nothing, and so Pike argued, when justifying himself and his actions later on. In his capacity as commissioner with plenary powers, he also promised the Indians that the Confederacy would see to it that their trust funds, secured by southern bonds, should be rendered safe and negotiable. Over and above all this, the government of the Confederate States made itself responsible for claims for damages of various sorts that the different tribes had brought or were to bring against the United States. Three good instances of the same are the following: the claim of the Cherokees for losses, personal and national, incident to the removal from Georgia; the claim[280] of the Seminoles for losses sustained by reason of General Thomas S. Jesup's emancipation[281] order during the progress of the Second Seminole War; and the claim of the Wichitas against the United States government for having granted to the Choctaws the land that belonged by hereditary preemption to them and had so belonged from time out of mind. It is exceedingly interesting to know that these Wichitas had been colonized on the very land they claimed as indisputably their own.

In all the treaties, negotiated by Pike, except the two of the Third Class,[282] the Wichita and the Comanche, the institution of slavery was positively and particularly recognized, recognized as legal and as having existed from time immemorial. Property rights in slaves were guaranteed. Fugitive Slave Laws were declared operative within the Indian country, and the mutual rendition of fugitives was promised throughout the length and breadth of the Confederacy. The First Class of treaties differs from the Second in this matter but only in a very slight degree. The latter condenses in one clause[283] all that bears upon slavery in its various aspects, the former separates the discussion of the legality of the institution from that of the rendition of slaves. Of the First Class, the Creek Treaty[284] constituted the model; of the Second, the Osage.[285]

Aside from the things to which reference has already been made, the Confederate Indian treaties were, in a variety of ways and to the same extent that the Confederate constitution itself was, a reflection upon past history. To avoid the friction that had always been present between the red men and their neighbors, an attempt was now made to redefine and to readjust the relations of Indians with each other both within and without the tribe; their relations with white men considered apart from any political organization; their relations, either as individuals or as tribes, with the several states of the Confederacy; and their relations with the central government. In general, their rights, civil, political, and judicial, as men and as semi-independent communities were now specified under such conditions as made for what in times past would have been regarded as full recognition, and even for enlargement. Indian rights were at a premium because Indian alliances were in demand.

The relations of Indians with Indians need not be considered at length. Suffice it to say that many clauses were devoted to the regulation of the affairs of those tribes that were, either politically or ethnologically, closely connected with each other; as, for example, the Choctaws and Chickasaws on the one hand and the Creeks and Seminoles on the other. Still other clauses assured the tribes of protection against hostile invasion from red men and from white, and assured all the great tribes, except the Cherokees,[286] of similar protection against domestic violence.[287] The Cherokees, very possibly, were made an exception because of the known intensity of their factional strife and hatred, which, purely for its own selfish ends, the Confederacy had done so much to augment. There may also have been some lingering doubt of John Ross's sincerity in the matter of devotion to the Confederacy. The time had been and might come again when the Confederacy would find it very expedient to play off one faction against another. Injuries coming to the Indians from a failure to protect were to be indemnified out of the Confederate treasury. Could the United States, throughout the more than a hundred years of its history have had just such a law, its national treasury would have been saved millions and millions of dollars paid out in claims, just and unjust, of white men against the Indians.

As affecting their relations with white men, the Indians were conceded the right to determine absolutely, by their own legislation, the conditions of their own tribal citizenship. This would mean, of course, the free continuance of the custom of adoption, a custom more pernicious in Indian history than even the principle of equal apportionment in Frankish; because it was the entering wedge to territorial encroachment. The white man, once adopted into the tribe as a citizen, was to be protected against unjust discrimination or against the forfeiture of his acquired status. The provisions against intruders were legitimately severe, those of the United States had never been severe enough. The executive power had always been very weak and very lax but now it was to reside in the tribal Council and would bid fair to be firm because interested, or, perhaps, we should say disinterested. The Confederacy, on its part, promised that the aid of the military should be forthcoming for the expulsion of intruders on application by the agent, should the tribal authority prove inadequate. The Indians might compel the removal of obnoxious men from agency and military reserves. Unauthorized settlement within the Indian country by citizens of the Confederate States was absolutely forbidden under pain of punishment by the tribe encroached upon.

With respect to Indian trade, there was considerable innovation and considerable modification of existing laws. For years past, the Indians of the great tribes had chafed under the restrictions which the United States government had placed upon their trade and, unquestionably, no other single thing had irritated them more than the very evident monopoly right which the United States had given to a few white men over it. Indian trade, under federal regulations, was nothing more nor less than an extension of the protective policy, a policy that was destructive of all competition and that put the Indian, often to the contempt of his intelligence, at the mercy of the white sharper. Indian commissioner after Indian commissioner had protested against it, but all in vain. George W. Manypenny, particularly, had tried[288] to effect a change; for he was himself convinced that, if the Indians were capable of self-government, they were certainly capable of conducting their own trade. Needless to say, Manypenny's efforts were entirely unavailing. The Indian trade in the hands of the licensed white trader, although a pernicious thing for the Indian, was an exceedingly lucrative business for enterprising American citizens, white men who were, unfortunately, in possession of the elective franchise but of little else that was honorable and the government, controlled by constituents with local interests, dared not surrender it to the unenfranchised Indians no matter how highly competent they might be. Thus the Indian country, throughout its entire extent, was exploited for the sake of the frontiersman. Moreover, the annuity money, a just tax upon a government that had received so much real estate from the aborigines, instead of being spent judiciously to meet the ends of civilization and in such a way as to reflect credit upon the donor, who after all was a self-constituted guardian, went right back into the pockets of United States citizens but, of necessity, into those of only a very limited number of them.

Because it was a matter of expediency and not because it was a principle that it believed in, otherwise it would have given it to the weak tribes as well as to the strong, the Confederacy gave to the Indians of the great tribes, but not to all in exactly the same measure,[289] the control of their own trade. It did not do away with the post trader, as it ought to have done in order to make its reform complete, but it did deprive him of his monopoly privileges. It hedged his license about with restrictions,[290] made it subject, on complaint of the Indian and in the event of arrearages, to revocation; and, to all of the great tribes except the Seminoles, it gave the power of taxing his goods, his stock in trade, usually a rather paltry outfit. No better precaution could have possibly been devised against exorbitant charging. An ad valorem tax would most certainly have quite eliminated the fifty, the one hundred, and the two hundred per cents of profit. As a matter of fact, the extravagantly high prices of the ordinary Indian trader would be, for most persons, positively prohibitive. The Confederacy further bound itself to pay to the Indians an annual compensation for the land and timber used by the trader.