Chapter X: Front Matter (10)

The removal of the Cherokees having at last been accomplished, the next important object of the Government was to insure their internal tranquillity, with a view to the increase and encouragement of those habits of industry, thrift, and respect for lawfully constituted authority which had made so much progress among them in their eastern home. But this was an undertaking of much difficulty. The instrumentalities used by the Government in securing the conclusion and approval of not only the treaty of 1835 but also those of 1817 and 1819 had caused much division and bitterness in their ranks, which had on many occasions in the past cropped out in acts of injustice and even violence.

Upon the coming together of the body of the nation in their new country west of the Mississippi, they found themselves torn and distracted by party dissensions and bitterness almost beyond hope of reconciliation. The parties were respectively denominated:

1. The "Old Settler" party, composed of those Cherokees who had prior to the treaty of 1835 voluntarily removed west of the Mississippi, and who were living under a regularly established form of government of their own.

2. The "Treaty" or "Ridge" party, being that portion of the nation led by John Ridge, and who encouraged and approved the negotiation of the treaty of 1835.

3. The "Government" or "Ross" party, comprising numerically a large majority of the nation, who followed in the lead of John Ross, for many years the principal chief of the nation, and who had been consistently and bitterly hostile to the treaty of 1835 and to any surrender of their territorial rights east of the Mississippi.

Upon the arrival of the emigrants in their new homes, the Ross party insisted upon the adoption of a new system of government and a code of laws for the whole nation. To this the Old Settler party objected, and were supported by the Ridge party, claiming that the government and laws already adopted and in force among the Old Settlers should continue to be binding until the general election should take place in the following October, when the newly elected legislature could enact such changes as wisdom and good policy should dictate.[454] A general council of the whole nation was, however, called to meet at the new council-house at Takuttokah, having in view a unification of interests and the pacification of all animosities. The council lasted from the 10th to the 22d of June, but resulted in no agreement. Some six thousand Cherokees were present. A second council was called by John Ross for a similar purpose, to meet at the Illinois camp-ground on the 1st of July, 1839.[455]

_Murder of Boudinot and the Ridges._--Immediately following the adjournment of the Takuttokah council three of the leaders of the Treaty party, John Ridge, Major Ridge his father, and Elias Boudinot were murdered[456] in the most brutal and atrocious manner. The excitement throughout the nation became intense. Boudinot was murdered within 300 yards of his house, and only 2 miles distant from the residence of John Ross. The friends of the murdered men were persuaded that the crimes had been committed at the instigation of Ross, as it was well known that the murderers were among his followers. Ross's friends, however, at once rallied to his protection and a volunteer guard of six hundred patrolled the country in the vicinity of his residence.[457]

A number of the chiefs and prominent men of the Old Settler and Ridge parties fled to Port Gibson for safety. From there on the 28th of June, John Brown, John Looney, John Rogers, and John Smith, signing themselves as the executive council of the Western Cherokees, addressed a proposition to John Ross to send a delegation of the chiefs and principal men of his party with authority to meet an equal number of their own at Fort Gibson, with a view to reach an amicable agreement between the different factions. Ross responded[458] by inviting them to meet at the council convened upon his call on the 1st of July, which was declined. A memorial was thereupon[459] addressed to the authorities of the United States by Brown, Looney, and Rogers as chiefs of the Western Cherokees, demanding protection in the territory and government guaranteed to them by treaty. Against this appeal the Ross convention or council in session at Illinois camp-ground filed a protest.[460] Between the dates of the appeal and the protest a part of the Old Settlers, acting in concert with Ross and his adherents, passed resolutions[461] declaratory of their disapproval of the conduct of Brown and Rogers, and proclaimed their deposition from office as chiefs. Looney escaped deposition by transferring his fealty to the Ross party.

_Unification of Eastern and Western Cherokees._--It is proper to remark in this connection that on the 12th of July the Ross council adopted resolutions uniting the Eastern and the Western Cherokees "into one body politic under the style and title of the Cherokee Nation." This paper, without mentioning or referring to the treaty of 1835, speaks of the late emigration as constrained by the force of circumstances. The council also passed[462] a decree, wherein after reciting the murders of the Ridges and Boudinot, and that they in conjunction with others had by their conduct rendered themselves liable to the penalties of outlawry, extended to the survivors a full amnesty for past offenses upon sundry very stringent and humiliating conditions. They also passed[463] a decree condoning the crime of the murderers, securing them from any prosecution or punishment by reason thereof, and declaring them fully restored to the confidence and favor of the community.

_Treaty of 1835 declared void._--At a council held at Aquohee Camp a decree was passed on the 1st of August, declaring the treaty of 1835 void, and reasserting the Cherokee title to their old country east of the Mississippi. Later in the same month a decree was passed,[464] citing the appearance before them, under penalty of outlawry, of the signers of the treaty of 1835, to answer for their conduct. This act called forth[465] a vigorous protest from General Arbuckle, commanding Fort Gibson, and was supplemented by instructions[466] to him from the Secretary of War to cause the arrest and trial of Ross as accessory to the murder of the Ridges in case he should deem it wise to do so.

_Constitution adopted by the Cherokee Nation._--A convention summoned by Ross and composed of his followers, together with such members of the Treaty and Old Settler parties as could be induced to participate, convened and remained in session at Tahlequah from the 6th to the 10th of September, 1839. This body adopted a constitution for the Cherokee Nation, which was subsequently accepted and adopted by the Old Settlers or Western Cherokees in council at Fort Gibson on the 26th of the following June, and an act of union was entered into between the two parties on that date.

_Division of Cherokee territory proposed._--A proposition had been previously[467] submitted by the representatives of the Treaty and Old Settler parties, urging as the only method of securing peace the division of the Cherokee domain and annuities. They recommended that General Arbuckle and Captain Armstrong be designated to assign to them and to the Ross party each their proportionate share according to their numbers, but the adoption of this act of union avoided any necessity for the further consideration of the proposal. As a means also of relieving the Cherokees from further internal strife, General Arbuckle had,[468] pursuant to the direction of the Secretary of War, notified them that, in consequence of his public acts, John Ross would not be allowed to hold office in the nation, and that a similar penalty was denounced against William S. Coody for offensive opinions expressed in the presence of the Secretary of War.[469] Little practical effect was however produced upon the standing or influence of these men with their people.

Skeptical of the sincerity of the promises of peace and good feeling held out by the act of unification, John Brown, a noted leader and chief of the Old Settler Cherokees, in conjunction with many of his followers, among whom were a number of wandering Delawares, asked and obtained permission from the Mexican Government to settle within the jurisdiction of that power, and they were only persuaded to remain by the earnest assurances of the Secretary of War that the United States could and would fully protect their interests.[470]

CHEROKEES CHARGE THE UNITED STATES WITH BAD FAITH.

No sooner had the removal of the Cherokees been effectually accomplished than the latter began to manifest much dissatisfaction at what they characterized a lack of good faith on the part of the Government in carrying out the stipulations of the treaty of 1835. The default charged had reference to the matter of payment of their claims for spoliations, improvements, annuities, etc. Each winter at least one delegation from the nation maintained a residence in Washington and urged upon the Executive and Congress with untiring persistency an adjudication of all disputed matters arising under the treaty.

At length the term of President Van Buren expired and was succeeded by a Whig administration. Then as now, the official acts of an outgoing political party were considered to be the legitimate subject of criticism and investigation by its political enemies. President Harrison lived but a month after assuming the duties of his office, but Vice-President Tyler as his successor considered that the treatment to which the Cherokees had been subjected during Jackson's and Van Buren's administrations would afford a field for investigation fraught with a rich harvest of results in political capital for the Whig party.

_President Tyler promises a new treaty._--Accordingly, therefore, in the fall of 1841, just previous to the departure of the Cherokee delegation from Washington to their homes, the President agreed to take proper measures for the settlement of all their difficulties, expressing a determination to open the whole subject of their complaints and to bring their affairs to a satisfactory conclusion through the medium of a new treaty. In conformity with this determination the Commissioner of Indian Affairs[471] instructed the agent for the Cherokees to procure all the information possible to be obtained upon every subject connected with Cherokee affairs having a tendency to throw any light upon the wrongs and injustice they might have sustained to the end that full amends could so far as possible be made therefor. Before much information was collected under the terms of these instructions a change seems to have taken place in the views of the President, and the order for investigation was revoked. The draft of the new treaty was, however, in the mean time prepared under direction of the Secretary of War. It contained provisions regulating the licensing of traders in the Cherokee country, the jurisdiction over crimes committed by citizens of the United States resident in that country, the allotment of their lands in severalty by the Cherokee authorities, and the establishment of post-offices and post-routes within their limits. It further contemplated the appointment of two commissioners, whenever Congress should make provision therefor, whose duty it should be to examine into and make a report to that body upon the character, validity, and equity of all claims of whatsoever kind presented by Cherokees against the United States, and also to afford the Cherokees pecuniary aid in the purchase of a printing press and type as well as in the erection of a national council-house. This treaty, however, was never consummated.

_President Jackson's method for compelling Cherokee removal._--In connection with this subject of an investigation into the affairs of the Cherokees, a confidential letter is to be found on file in the office of the Commissioner of Indian Affairs, from Hon. P. M. Butler, of South Carolina, who had a few months previous to its date[472] been appointed United States agent for the Cherokees, interesting as throwing light on the negotiation and conclusion of the treaty of 1835. Mr. Butler says it is alleged, and claimed to be susceptible of proof, that Mr. Merriweather, of Georgia, in an interview with President Jackson, a considerable time before the treaty was negotiated, said to the President, "We want the Cherokee lands in Georgia, but the Cherokees will not consent to cede them," to which the President emphatically replied, "You must get clear of them [the Cherokees] by legislation. Take judicial jurisdiction over their country; build fires around them, and do indirectly what you cannot effect directly."

PER CAPITA PAYMENTS UNDER THE TREATY.

In the same letter Mr. Butler, in alluding to the existing difficulties in the Cherokee Nation, observes that prior to the preceding October the Ross party had been largely in the ascendency in the nation, but that at their last preceding election the question hinged upon whether the "per capita" money due them under the treaty of 1835 should be immediately paid over to the people. The result was in favor of the Ridge party, who assumed the affirmative of the question, the opposition of Ross and his party being predicated on the theory that an acceptance of this money would be an acknowledgment of the validity of the treaty of 1835. This, it was feared, would have an unfavorable effect on their efforts to secure the conclusion of a new treaty on more satisfactory terms. On the settlement of this per capita tax, Mr. Butler remarks, will depend the peace and safety of the Cherokee Nation, adding that should the rumors afloat prove true, to the effect that the per capita money was nearly exhausted, neither the national funds in the hands of the treasurer nor the life of Mr. Ross would be safe for an hour from the infuriated members of the tribe.

POLITICAL MURDERS IN CHEROKEE NATION.

In the spring of 1842 an event occurred which again threw the whole nation into a state of the wildest excitement. The friends of the murdered Ridges and Boudinot had never forgiven the act, nor had time served to soften the measure of their resentment against the perpetrators and their supposed abettors. Stand Watie had long been a leader among the Ridge party and had been marked for assassination at the time of the murders just alluded to. He was a brother of John Ridge, one of the murdered men, and he now, in virtue of his mission as an avenger, killed James Foreman, a member of the Ross party and one of the culprits in the murder of the Ridges. Although Stand Watie excused his conduct on the score of having come to a knowledge of certain threats against his life made by Foreman, no event could at that time have been more demoralizing and destructive of the earnestly desired era of peace and good feeling among the Cherokee people. From that time forward all hope of a sincere unification of the several tribal factions was at an end.

ADJUDICATION COMMISSIONERS APPOINTED.

In the autumn of 1842[473] the President appointed John H. Eaton and James Iredell as commissioners to adjudicate and settle claims under the treaty of 1835. Mr. Iredell declined, and Edward B. Hubley was appointed[474] to fill his place. This tribunal was created to continue the uncompleted work of the board appointed in 1836 under the provisions of the same article, the labors of which had terminated in March, 1839, having been in session more than two years.

[Footnote 346: United States Statutes at Large, Vol. VII, p. 488.]

[Footnote 347: May 27, 1828.]

[Footnote 348: Letter of War Department to Hugh Montgomery, Cherokee agent, May 27, 1828, and to General William Carroll, May 30, 1829.]

[Footnote 349: December 18, 1828.]

[Footnote 350: Letter of T. L. McKenney to Secretary of War, November, 17, 1829.]

[Footnote 351: Letter of T. L. McKenney to Hugh Montgomery, Cherokee agent, August 6, 1830.]

[Footnote 352: Letter of Cherokee delegation (East) to Secretary of War, January 21, 1829.]

[Footnote 353: Letter of Secretary of War to Cherokee delegation, April 18, 1829.]

[Footnote 354: December 20, 1828.]

[Footnote 355: Agent Montgomery to the Secretary of War, July 11, 1829.]

[Footnote 356: Secretary of War to General William Carroll, May 27, 1829.]

[Footnote 357: June 25, 1829.]

[Footnote 358: November 19, 1829.]

[Footnote 359: June 23, 1829.]

[Footnote 360: December 19, 1829.]

[Footnote 361: Among other legislation on this subject enacted by Georgia may be enumerated the following, viz:

1. A penalty of forfeiture of all right to his land and improvements was denounced against any Cherokee who should employ any white man, or the slave of any white man, as a tenant-cropper, or assistant in agriculture, or as a miller or millwright.

2. Any Indian who should enroll for emigration and afterwards refuse to emigrate should forfeit all right to any future occupancy within the State.

3. No Indian should be allowed the use of more than 160 acres of land, including his dwelling house.

4. Grants were to be issued for all lots drawn in the late land and gold lottery, though they might lie within the improvements of an Indian who had by any previous Cherokee treaty received a reservation either in Georgia or elsewhere.

5. No contract between a white man and an Indian, either verbal or written, should be binding unless established by the testimony of two white witnesses.

6. Any Indian forcibly obstructing the occupancy by the drawer of any lot drawn in the land and gold lottery should be subject to imprisonment in the discretion of the court.]

[Footnote 362: Letter of War Department to Hugh Montgomery, Cherokee agent, June 9, 1830.]

[Footnote 363: Letter of Acting Secretary of War to H. Montgomery, Cherokee Agent, June 18, 1830.]

[Footnote 364: Letter of Acting Secretary of War to H. Montgomery, Cherokee Agent, June 26, 1830.]

[Footnote 365: September 1, 1830.]

[Footnote 366: October 20, 1830.]

[Footnote 367: Action of Cherokee national council, October 22, 1830.]

[Footnote 368: Cherokee Nation _vs._ State of Georgia, Peters's United States Supreme Court Reports, Vol. V, p. 1.]

[Footnote 369: April 17, 1832.]

[Footnote 370: July 18, 1832.]

[Footnote 371: September 4, 1832.]

[Footnote 372: Worcester _vs._ State of Georgia, Peters's United States Supreme Court Reports, Vol. VI, p. 515.]

[Footnote 373: According to the statement of Hon. Geo. N. Briggs, a member of Congress from Massachusetts, President Jackson remarked, after the case of Worcester _vs._ State of Georgia was decided, "Well, John Marshall has made his decision, now let him enforce it."]

[Footnote 374: Treaty June 1, 1773, between the British superintendent of Indian affairs and the Creeks and Cherokees.]

[Footnote 375: United States Statutes at Large, Vol. VII, p. 237.]

[Footnote 376: Letter of D. B. Mitchell, Creek agent, to Secretary of War.]

[Footnote 377: See Indian Office files for these two treaties.]

[Footnote 378: United States Statutes at Large, Vol. VII, p. 171.]

[Footnote 379: Ib., p. 215.]

[Footnote 380: United States Statutes at Large, Vol. VII, p. 237.]

[Footnote 381: Ib., p. 289.]

[Footnote 382: Ib., p. 307; Creek treaty of November 15, 1827.]

[Footnote 383: Letter of Secretary of War to D. B. Mitchell, Creek agent.]

[Footnote 384: Letter of Governor Forsyth, of Georgia, to Samuel A. Wales, May 5, 1829.]

[Footnote 385: Letter of Montgomery to Wales, May 13, 1829.]

[Footnote 386: October 10, 1829.]

[Footnote 387: December 30, 1829.]

[Footnote 388: January 15, 1830.]

[Footnote 389: March 14, 1830.]

[Footnote 390: Secretary of War to Governor Gilmer, of Georgia, June 1, 1830.]

[Footnote 391: The following paper, which is on file in the Office of Indian Affairs, is interesting in connection with the subject matter of this boundary:

Extract from treaties and other documents relative to the Cherokee lines in contact with the Creeks and Chickasaws west of Coosa River:

"_June 10, 1786._--In the treaty of this date with the Chickasaws the lands allotted them eastwardly 'shall be the lands allotted to the Choctaws and Cherokees to live and hunt on.' In the conference which took place between the commissioners of the United States and the Chickasaws and Cherokees, it was apparent that their claims conflicted with each other on the ridge dividing the waters of Cumberland from those of Duck River and around to the Chickasaw Oldtown Creek on Tennessee, thence southwardly, leaving the mountains above the Muscle Shoals on the south side of the river, and to a large stone or flat rock, where the Choctaw line joined with the Chickasaws. The journal of occurrences at the time were lodged with the papers of the old Congress, and probably were transferred to the office of Secretary of State. On the 7th of January, 1806, in a convention between the United States and Cherokees, on the part of the former by Mr. Dearborn, the United States engaged to use their best endeavors to fix a boundary between the Cherokees and Chickasaws, 'beginning at the mouth of Caney Creek, near the lower part of the Muscle Shoals, and to run up the said creek to its head, and in a direct line from thence to the flat stone or rock, the old corner boundary,' the line between the Creeks and Cherokees east of Coosau River.

"In 1802, at the treaty of Fort Wilkinson, it was agreed between the parties that the line was 'from the High Shoals on Apalatche, the old path, leaving Stone Mountain to the Creeks, to the shallow ford on the Chatahoochee.'

"This agreement was in presence of the commissioners of the United States and witnessed by General Pickens and Colonel Hawkins. On the 10th October, 1809, a letter was sent from the Cherokees to the Creeks and received in February in the public square at Tookaubatche, stating the line agreed upon at Fort Wilkinson, and that 'all the waters of Etowah down to the ten islands below Turkeytown these lands were given up to the Cherokees at a talk at Chestoe in presence of the Little Prince, and Tustunnuggee Thlucco Chulioah, of Turkeystown, was the interpreter.'

"In August, 1814, at the treaty of Fort Jackson, the Creeks and Cherokees were invited to settle their claims, and Colonel Meigs was engaged for three or four days in aiding them to do so. The result was they could not agree, but would at some convenient period agree. This was signed by General Jackson, Colonel Hawkins, and Colonel Meigs.

"At the convention with the Creeks, in September, 1815, the Cherokees manifested a sincere desire to settle their boundaries with the Creeks, but the latter first declined and then refused. Tustunnuggee Thlucco, being asked where their boundary was west of Coosau, said there never was any boundary fixed and known as such between the parties, and after making Tennessee the boundary from tradition, and that the Cherokees obtained leave of them to cross it, the policy of the Creeks receiving all destroyed red people in their confederacy, the Cherokees were permitted to come over and settle as low down on the west of Coosau as Hauluthee Hatchee, from thence on the west side of Coosau on all its waters to its source. He has never heard, and he has examined all his people who can have any knowledge on the subject, that the Cherokees had any pretensions lower down Coosau on that side. He does not believe, and he has never heard, there was any boundary agreed upon between them. Being asked by Colonel Hawkins his opinion where the boundary should be, he says it should go up Hauluthee Hatchee, passing a level of good land between two mountains, to the head of Itchau Hatchee, and down the same to Tennessee, about 8 or 9 miles above Nickajack. In the year 1798 the Cherokees had a settlement at the Muscle Shoals, Doublehead and Katagiskee were the chiefs, and the Creeks had a small settlement above the Creek path on Tennessee. The Cherokee settlement extended southwardly from the shoal probably a mile and a half. The principal temporary agent for Indian affairs south of the Ohio was early instructed in 1777 to ascertain the boundary line of the four nations, and instructions were given accordingly by him to Mr. Dinsmore and Mr. Mitchell to aid in doing it. Several attempts were made, but all proved abortive, owing to the policy of the Creeks, which was to unite the four nations in one confederacy and the national affairs of all to be in a convention to be held annually among the Creeks, where the speaker for the Creeks should preside.

"At every attempt made among the Creeks when these conventions met, the answer was, 'We have no dividing lines, nor never had, between us. We have lines only between us and the white people, our neighbors.' At times, when the subject was discussed in the convention of the Creeks, they claimed Tombigby, called by them Choctaw River (Choctau Hatchee), the boundary line between them and the Choctaws. Tustunneggee Hopoie, brother of the old Efau Hajo (mad dog), who died at ninety-six years of age, and retained strength of memory and intelligence to this great age, reported publicly to the agent, 'When he was a boy his father's hunting camp was at Puttauchau Hatchee (Black Warrior).' His father had long been at the head of the Creeks, and always told him 'Choctaw River was their boundary with the Choctaws.' He never saw a Choctaw hunting camp on this side the Black Warrior.

"A true copy from the original.

"PHIL. HAWKINS, JR.,
"_Ast. A. I. A._"]

[Footnote 392: Letter of Secretary of War to Governor Lumpkin, of Georgia, March 12, 1833.]

[Footnote 393: March 21, 1833.]

[Footnote 394: Commissioner of Indian Affairs to Agent Montgomery, April 22, 1833.]

[Footnote 395: Secretary of War to Governor Lumpkin, of Georgia, January 28, 1834.]

[Footnote 396: March 28, 1834.]

[Footnote 397: May 1, 1834.]

[Footnote 398: March 3, 1834.]

[Footnote 399: Letter of John Ross and others to Secretary of War, inclosing protest, May 24, 1834.]

[Footnote 400: Letter of Hon. J. H. Eaton to John Ross, May 26, 1834.]

[Footnote 401: May 29, 1834.]

[Footnote 402: Secretary of War to governor of Georgia, July 8, 1834.]

[Footnote 403: May 17, 1834.]

[Footnote 404: The Ross delegation was composed of John Ross, R. Taylor, Daniel McCoy, Samuel Gunter, and William Rogers. The Ridge delegation consisted of John Ridge, William A. Davis, Elias Boudinot, A. Smith, S. W. Bell, and J. West.]

[Footnote 405: February 11, 1835.]

[Footnote 406: Memorandum delivered by Secretary of War to Senator King, of Georgia, February 28, 1835.]

[Footnote 407: Memorandum delivered by Secretary of War to Senator King, of Georgia, February 28, 1835.]

[Footnote 408: March 16, 1835.]

[Footnote 409: September 10, 1835.]

[Footnote 410: September 26, 1835.]

[Footnote 411: Senate Document 120, Twenty-fifth Congress, second session, p. 124.]

[Footnote 412: See proceedings of council.]

[Footnote 413: National Intelligencer, May 22, 1838.]

[Footnote 414: Schermerhorn to Commissioner of Indian Affairs, December 31, 1835.]

[Footnote 415: See report of proceedings of council.]

[Footnote 416: National Intelligencer, May 22, 1838.]

[Footnote 417: United States Statutes at Large, Vol. VII, p. 488.]

[Footnote 418: In addition to these sums, an appropriation of $1,047,067 was made by the act of June 13, 1838, in full of all objects specified in the third supplemental article and for the one year's subsistence provided for in the treaty.]

[Footnote 419: Commissioner of Indian Affairs to John Ross, March 9, 1836.]

[Footnote 420: Hon. P. M. Butler, in a confidential letter to the Commissioner of Indian Affairs, March 4, 1842, says: "The treaty, as the Department is aware, was sustained by the Senate of the United States by a majority of one vote."]

[Footnote 421: United States Statutes at Large, Vol. VII, p. 478 _et seq._]

[Footnote 422: July 25, 1836.]

[Footnote 423: July 30, 1836.]

[Footnote 424: The Secretary of War, October 12, 1836, directed General Wool to inform Mr. Ross that the President regarded the proceedings of himself and associates in council as in direct contravention of the plighted faith of their people, and a repetition of them would be considered as indicative of a design to prevent the execution of the treaty even at the hazard of actual hostilities, and they would be promptly repressed.]

[Footnote 425: October 17, 1836.]

[Footnote 426: Senate confidential document, April 12, 1836, p. 200.]

[Footnote 427: National Intelligencer, May 22, 1838.]

[Footnote 428: National Intelligencer, May 22, 1838.]

[Footnote 429: June 3, 1837.]

[Footnote 430: July 15, 1837.]

[Footnote 431: September 25, 1837.]

[Footnote 432: September 30, 1836.]

[Footnote 433: October 25, 1836.]

[Footnote 434: Secretary of War to Andrew Jackson, August 21, 1837.]

[Footnote 435: October 16, 1837.]

[Footnote 436: The amounts adjudicated and paid by this commission, as shown by the records of the Indian Office (see Commissioner of Indian Affairs' letter of March 7, 1844), were as follows:

1. For improvements $1,683,192 77-1/2

2. Spoliations 416,306 82-1/2

3. National debts due to Cherokees 19,058 14

4. National debts due to citizens of the United States 51,642 87

5. Reservations 159,324 87

_________________

Total 2,329,524 86

(The figures as given here are correctly copied from the commissioner's letter, but there is an obvious error either in the footing or in the items.)]

[Footnote 437: January 3, 1837.]

[Footnote 438: December 1, 1836.]

[Footnote 439: This census showed a distribution of the Cherokee population, according to State boundaries, as follows:

+-----------------+----------+-------+--------------------+
| | | |Whites intermarried |
| States. |Cherokees.|Slaves.| with |
| | | | Cherokees. |
+-----------------+----------+-------+--------------------+
|In Georgia | 8,946| 776| 68|
|In North Carolina| 3,644| 37| 22|
|In Tennessee | 2,528| 480| 79|
|In Alabama | 1,424| 299| 32|
| +----------+-------+--------------------+
| Total | 16,542| 1,592| 201|
+-----------------+----------+-------+--------------------+
]

[Footnote 440: Secretary of War to Col. William Lindsay, May 8, 1837.]

[Footnote 441: March 26, 1838.]

[Footnote 442: Speech in reply to Mr. Halsey, of Georgia, January 2, 1838.]

[Footnote 443: May 22, 1838.]

[Footnote 444: National Intelligencer, June 8, 1838.]

[Footnote 445: Secretary of War to James K. Polk, Speaker of the House of Representatives, January 8, 1838.]

[Footnote 446: General Macomb to General Scott, April 6, 1838.]

[Footnote 447: May 10, 1838.]

[Footnote 448: May 18, 1838.]

[Footnote 449: Annual report of Commissioner of Indian Affairs, November 25, 1838.]

[Footnote 450: Proposal was accepted July 25; emigration to begin September 1 and end before October 20, 1838.]

[Footnote 451: The number, according to the rolls of John Ross, who removed under his direction, was 13,149. According to the rolls of Captain Stevenson, the agent who received them on their arrival West, there were only 11,504, and, according to Captain Page, the disbursing officer, there were 11,721. Mr. Ross received on his settlement with Captain Page subsequent to the removal, $486,939.50-1/4, which made a total payment to Ross by the Government on account of Cherokee removals of $1,263,338.38. (Letter of Commissioner Indian Affairs, June 15, 1842). See, also, Commissioner of Indian Affairs to Commissioner of Land Office, January 9, 1839.]

[Footnote 452: Commissioner of Indian Affairs to Secretary of War, September 12, 1839.]

[Footnote 453: April 21, 1840.]

[Footnote 454: Report of Commissioner of Indian Affairs for 1839.]

[Footnote 455: Letter of John Ross to General Arbuckle, June 24, 1839.]

[Footnote 456: June 22, 1839.]

[Footnote 457: Agent Stokes to Secretary of War, June 24, 1839.]

[Footnote 458: July 5, 1839.]

[Footnote 459: August 9, 1839.]

[Footnote 460: August 27, 1839.]

[Footnote 461: August 23, 1839.]

[Footnote 462: July 7, 1839.]

[Footnote 463: July 10, 1839.]

[Footnote 464: August 21, 1839.]

[Footnote 465: September 4, 1839, _et seq._]

[Footnote 466: November 9, 1839.]

[Footnote 467: January 22, 1840.]

[Footnote 468: April 21, 1840.]

[Footnote 469: Coody, in an interview with the Secretary of War, persisted in considering the murders of Boudinot and the Ridges as justifiable. General Arbuckle's letter of notification bore date April 21, 1840.]

[Footnote 470: Commissioner of Indian Affairs to Maj. William Armstrong, August 26, 1840.]

[Footnote 471: September 22, 1841.]

[Footnote 472: March 4, 1842.]

[Footnote 473: September 9, 1842.]

[Footnote 474: November 8, 1842.]

TREATY CONCLUDED AUGUST 6, 1846; PROCLAIMED AUGUST 17, 1846.[475]

_Held at Washington, D. C., between Edmund Burke, William
Armstrong, and Albion K. Parris, commissioners on behalf of the
United States, and delegates representing each of the three
factions of the Cherokee Nation, known, respectively, as the
"Government party," the "Treaty party," and the "Old Settler
party."_

MATERIAL PROVISIONS.

The preamble recites the difficulties that have long existed between the different factions of the nation, and because of the desire to heal those differences and to adjust certain claims against the United States growing out of the treaty of 1835 this treaty is concluded, and provides:

1. The lands now occupied by the Cherokee Nation shall be secured to the whole Cherokee people for their common use and benefit. The United States will issue a patent therefor to include the 800,000-acre tract and the western outlet. If the Cherokees become extinct or abandon the land it shall revert to the United States.

2. All difficulties and differences heretofore existing between the several parties of the Cherokee Nation are declared to be settled and adjusted. A general amnesty for all offenses is declared and fugitives may return without fear of prosecution. Laws shall be passed for the equal protection of all. All armed police or military organizations shall be disbanded and the laws executed by civil process. Trial by jury is guaranteed.

3. The United States agree to reimburse to the Cherokee Nation all sums unjustly deducted for claims, reservations, expenses, etc., from the consideration of $5,000,000 agreed to be paid under the treaty of 1835 to the Cherokees for their lands, and to distribute the same as provided in the ninth article of that treaty.

4. The board of commissioners recently appointed by the President have declared that under the provisions of the treaty of 1828 the "Old Settlers," or Western Cherokees, had no exclusive title to the lands ceded by that treaty as against the Eastern Cherokees, and that by the equitable operation of that treaty the former acquired a common interest in the Cherokee lands east of the Mississippi. This interest of the "Old Settlers" was unprovided for by the treaty of 1835. It is therefore agreed that a sum equal to one-third of the residuum of per capita fund left after a proper adjustment of the account for distribution under the treaty of 1835 shall be paid to said "Old Settlers," and that in so doing, in estimating the cost of removal and subsistence, it shall be based upon the rate fixed therefor in the eighth article of the treaty of 1835. In consideration of the foregoing the "Old Settlers" release to the United States all interest in the Cherokee lands east of the Mississippi and all claim to exclusive ownership in the Cherokee lands west of the Mississippi.

5. The per capita allowance to the "Western Cherokees," or "Old Settlers," upon the principle above stated, shall be held in trust by the United States and paid out to each individual or head of family or his representative entitled thereto in person. The President of the United States shall appoint five persons as a committee from the "Old Settlers" to determine who are entitled to the per capita allowance.

6. The United States agree to pay the "Treaty party" the sum of $115,000 for losses and expenses incurred in connection with the treaty of 1835, of which $5,000 shall be paid to the legal representatives or heirs of Major Ridge, $5,000 to those of John Ridge, and $5,000 to those of Elias Boudinot. The remainder shall be distributed among those who shall be certified by a committee of the "Treaty party" as entitled, provided that the present delegation of the party may deduct $25,000, to be by them applied to the payment of claims and expenses. And if the said sum of $100,000 should be insufficient to pay all claims for losses and damages, then the claimants to be paid pro rata in full satisfaction of said claims.

7. All individuals of the "Western Cherokees" who have been dispossessed of salines, the same being their private property, shall be compensated therefor by the Cherokee Nation, upon an award to be made by the United States agent and a Cherokee commissioner, or the salines shall be returned to the respective owners.

8. The United States agree to pay the Cherokee Nation $2,000 for a printing press, etc., destroyed; $5,000 to be equally divided among all whose arms were taken from them previous to their removal West by order of an officer of the United States, and $20,000 in lieu of all claims of the Cherokee Nation, as a nation, prior to the treaty of 1835, except lands reserved for school funds.

9. The United States agree to make a fair and just settlement of all moneys due to the Cherokees and subject to the per capita division under the treaty of December 29, 1835. This settlement to embrace all sums properly expended or charged to the Cherokees under the provisions of said treaty, and which sums shall be deducted from the sum of $6,647,067. The balance found due to be distributed per capita among those entitled to receive the same under the treaty of 1835 and supplement of 1836, being those residing east of the Mississippi River at that date.

10. Nothing herein shall abridge or take away any rights or claims which the Cherokees _now_ residing in States east of the Mississippi River had or may have under the treaty of 1835 and supplement of 1836.

11. It is agreed that the Senate of the United States shall determine whether the amount expended for one year's subsistence of the Cherokees, after their removal under the treaty of 1835 and supplement of 1836, is properly chargeable to the United States or to the Cherokee funds, and, if to the latter, whether such subsistence shall be charged at a sum greater than $33-1/3 per head; also, whether the Cherokees shall be allowed interest upon the sums found to be due them; and, if so, from what date and at what rate.

12. (The twelfth article was struck out by the Senate.)

13. This treaty to be obligatory after ratification by the Senate and President of the United States.

HISTORICAL DATA.

CHEROKEES DESIRE A NEW TREATY.

In the spring of 1844 a delegation headed by John Ross arrived in Washington. In a communication[476] to the Secretary of War they inclosed a copy of a letter addressed to them by President Tyler on the 20th of September, 1841, previously alluded to, promising them a new treaty to settle all disputes arising under the treaty of 1835. They advised the Secretary of their readiness to enter upon the negotiation of the promised treaty, and submitted[477] a statement of the salient points of difference to be adjudicated, involving (1) a fair and just indemnity to be paid to the Cherokee Nation for the country east of the Mississippi from which they were forced to remove; (2) indemnity for all improvements, ferries, turnpike roads, bridges, etc., belonging to the Cherokees; (3) indemnity for spoliations committed upon all other Cherokee property by troops and citizens of the United States prior and subsequent to the treaty of 1835; (4) that a title in absolute fee-simple to the country west of the Mississippi be conveyed to the Cherokee Nation by the United States; (5) that the political relations between the Cherokee Nation and the United States be specifically defined; (6) that stocks now invested by the President for the Cherokee Nation be guaranteed to yield a specified annual income, and (7) that provision be made for those Cherokees residing east of the Mississippi who should evince a desire to emigrate to the Cherokee country west of that river.

FEUDS BETWEEN THE ROSS, TREATY, AND OLD SETTLER PARTIES.

At this period delegations representing the anti-Ross parties were also in Washington, and their animosities, coupled with the frequent and unsavory reports of the events happening in the Cherokee country, determined the President to conclude no new treaty until the true cause was ascertained and the responsibility fixed for all this turbulence and crime.[478] The Old Settler and the Treaty parties alleged that grievous oppressions were practiced upon them by the Ross party, insomuch that they were unable to enjoy their liberty, property, or lives in safety, or to live in peace in the same community. The Old Settler delegation alleged that the act of union, by virtue of which their government was superseded and they were subjected to the constitution and laws of the Ross party, was never authorized or sanctioned by the legal representatives of their people. _Per contra_, the Ross delegation alleged that the Old Settler and the Treaty parties enjoyed the same degree of security and the same fullness of rights that any other portion of the nation enjoyed, and that the alleged dissatisfaction was confined to a few restless and ambitious spirits whose motto was "rule or ruin."

_Commissioners appointed to inquire into Cherokee feuds._--In consequence of his determination, as above stated, the President appointed General R. Jones, Col. R. B. Mason, and P. M. Butler commissioners, with instructions[479] to proceed to the Cherokee country and ascertain if any considerable portion of the Cherokee people were arrayed in hostile feeling toward those who ruled the nation; whether a corresponding disposition and feeling prevailed among the majority who administered the government toward the minority; the lengths of oppression, resistance, and violence to which the excitement of each against the other had severally led the opposing parties, and whether the discontent was of such extent and intensity among the great mass of the Old Settler and Treaty parties as to forbid their living peaceably together under the same government with the Ross party. This commission convened at Fort Gibson on the 16th of November,[480] but their labors resulted in nothing of practical benefit to the sorely distressed Cherokees.

DEATH OF SEQUOYAH OR GEORGE GUESS.

Sequoyah or George Guess, the inventor of the Cherokee alphabet, removed to the country west of the Mississippi long anterior to the treaty of 1835,[481] and was for several years one of the national council of the Western Cherokees.

In the year 1843 he left his home for Mexico in quest of several scattered bands of Cherokees who had wandered off to that distant region, and whom it was his intention to collect together with a view to inducing them to return and become again united with their friends and kindred.

He did not meet with the success anticipated. Being quite aged, and becoming worn out and destitute, he was unable without assistance to make the return trip to his home. Agent Butler, learning of his condition, reported the fact to the Indian Department[482] and asked that sufficient funds be placed at his disposal for the purpose of sending messengers to bring the old man back. Two hundred dollars were authorized[483] to be expended for the purpose, and Oo-no-leh, a Cherokee, was sent on the errand of mercy, but upon reaching Red River he encountered a party of Cherokees from Mexico who advised him that Guess had died in the preceding July, and that his remains were interred at San Fernando.[484]

OLD SETTLER AND TREATY PARTIES PROPOSE TO REMOVE TO MEXICO.

In the fall of 1845 the bulk of the Old Settler and Treaty parties, having become satisfied that it would be impossible for them to maintain a peaceful and happy residence in the country of their adoption while the influence of John Ross continued potent in their national government, resolved to seek for themselves a new home on the borders of Mexico. A council was therefore held at which a delegation (consisting of forty-three members of the Treaty and eleven of the Old Settler party) was chosen to explore the country to the south and west for a future abode. They rendezvoused[485] at the forks of the Canadian and Arkansas Rivers, and, after electing a captain, proceeded via Fort Washita, crossing the Red River at Coffee's trading house, and following the ridge dividing the waters of Trinity and Brazos to the latter river, which they crossed at Basky Creek. Here they found a small settlement of sixty-three Cherokees, who had moved in the preceding June from a place called by them Mount Clover, in Mexico.

Among their number was found Tessee Guess, the son of George Guess. Leaving Brazos[486] the explorers traveled westward to the Colorado, reaching it at the mouth of Stone Fort Creek,[487] beyond which they proceeded in a southwesterly direction to the San Sabba Creek, at a point about 40 or 50 miles above its mouth. They returned on a line some 60 miles south of their outgoing trip,[488] and with their friends held a council at Dragoon Barracks in the Cherokee Nation.[489] At this meeting it was decided to ask the United States to provide them a home in the Texas country upon their relinquishment of all interest in the Cherokee Nation, or in case of a refusal of this request that the territory of the nation be divided into two parts, and a moiety thereof be assigned to them with the privilege of adopting their own form of government and living under it.

The governor of Arkansas[490] and General Arbuckle[491] both concurred in the conclusions reached by this council, and urged upon the authorities at Washington the necessary legislation to carry the same into effect.

MORE POLITICAL MURDERS.

Shortly after the delegation selected by the foregoing council had proceeded to Washington in the interest of the adoption of the scheme proposed, another epidemic of murder and outrage broke out in the nation. On the 23d of March, Agent McKissick reported to the Indian Department the murder of Stand, a prominent member of the Ross party, by Wheeler Faught, at the instigation of the "Starr boys," who were somewhat noted leaders of the Treaty party. This murder was committed in revenge for the killing of James Starr and others during the outbreak of the preceding November. It was followed[492] by the murder of Cornsilk, another of Ross's adherents, by these same "Starr boys," and six days later the spirit of retaliation led to the killing of Turner, a member of the Treaty party. On the 25th of the same month[493] Ellis, Dick, and Billy Starr were wounded by a band of Ross's Cherokee police, who chased them across the line of Arkansas in the attempt to arrest them for trial before the Cherokee tribunals for the murder of Too-noo-wee two days before. General Arbuckle took them under his protection, and refused to deliver them up for trial to the Cherokee authorities until the latter should take proper steps to punish the murderers of James Starr. Subsequently Baldridge and Sides, of the Ross party, were murdered by Jim and Tom Starr, in revenge for which the light horse police company of the Ross government murdered Billy Ryder, of the Treaty party.[494]

In this manner the excitement was maintained and the outrages multiplied until, on the 28th of August, Agent McKissick reported that since the 1st of November preceding there had been an aggregate of thirty-three murders committed in the Cherokee Nation, nearly all of which were of a political character. The feeling of alarm became so widespread that General Arbuckle was constrained to increase the military force on the frontier by two companies.

NEGOTIATION OF TREATY OF 1846.

While these unhappy events were in progress Major Armstrong, superintendent of Indian affairs, who was in Washington, submitted to the Commissioner of Indian Affairs, at the suggestion of the several Cherokee delegations, a proposition for the appointment of a commissioner clothed with full powers to adjust all difficulties between the various factions of their people.

The Commissioner replied that as the matter was before Congress and would likely receive the speedy attention of that body, no action would be justified by the executive authorities without first being assured that the proposition was founded in good faith and would result in some certain and satisfactory arrangement. He must also have assurance that there existed a firm determination on the part of the Department and of Congress to bring these troubles to a close before the adjournment of the latter body. The Commissioner, however, drew up a memorandum agreement for the signature of the several delegations of Cherokees representing the different factions of the tribe. It provided for the appointment of three commissioners, whose duty it should be to examine into all matters in controversy and adjust the same, and that all parties should abide absolutely by their decision, agreeing to execute and sign such treaty or other instrument of agreement as should be considered necessary to insure the execution of the award of the commissioners.[495] This agreement was duly signed by the members of the several delegations present in Washington, and in pursuance of its provisions President Polk appointed[496] Edmund Burke, William Armstrong, and Albion K. Parris commissioners with the powers and for the purposes above indicated. These commissioners at once entered into communication and negotiation with the three delegations representing the different factions of the Cherokee Nation, which were then in Washington, and the result was the conclusion of the treaty of August 6, 1846,[497] in thirteen articles, making detailed provision for the adjustment of all questions of dispute between the Cherokees themselves and also for the settlement of all claims by the Cherokees against the United States.[498] This treaty, with some slight amendments, was ratified and proclaimed by the President on the 17th of the same month; an abstract of its provisions has already been presented. It was not until this treaty that the Ross party ever consented in any manner to recognize or be bound by the treaty of 1835.[499]

_Objects of the treaty._--The main principle involved in the negotiation of the treaty of 1846 had been the disposition on the part of the United States to reimburse to the Cherokee fund sundry sums which, although not justly chargeable upon it, had been improperly paid out of that fund.[500] In the treaty of 1835 the United States had agreed to pay to the Cherokees $5,000,000 for their lands and $600,000 for spoliations, claims, expenses of removal, etc.[501] By the act of June 12, 1838,[502] Congress appropriated the further sum of $1,047,067 for expenses of removal. As all these sums were for objects expressed in the treaty of 1835, the commissioners who negotiated the treaty of 1846 regarded them as one aggregate sum given by the United States for the lands of the Cherokees, subject to the charges, expenditures, and investments provided for in the treaty. This aggregate sum was appropriated and placed in the Treasury of the United States, to be disposed of according to the stipulations of the treaty. The United States thereby became the trustee of this fund for the benefit of the Cherokee people, and were bound to manage it in accordance with the well known principles of law and equity which regulate the relation of trustee and _cestui que trust_.

_Adjudication of the treaty of 1835._--In order, therefore, to carry out the principle thus established by the treaty of 1846, Congress, by joint resolution, of August 7, 1848,[503] required the proper accounting officers of the Treasury to make a just and fair statement of account with the Cherokee Nation upon that basis. The joint report of the Second Comptroller and Second Auditor was submitted to Congress[504] after a full and thorough examination of all the accounts and vouchers of the several officers and agents of the United States who had disbursed funds appropriated to carry into effect the treaty of 1835, and also of all claims that had been admitted at the Treasury.

The result of this examination showed that there had been paid--

For improvements $1,540,572 27

For ferries 159,572 12

For spoliations 264,894 09

For removal and subsistence and commutation therefor,
including $2,765.84 expended for goods for the poorer
Cherokees under the fifteenth article of treaty of
1835, and including also necessary incidental expenses
of enrolling agents, conductors, commissioners,
medical attendance, and supplies, etc. 2,952,196 26

For debts and claims upon the Cherokee Nation 101,348 31

For the additional quantity of land ceded to the nation 500,000 00

For amount invested as the general fund of the nation 500,880 00

____________

The aggregate of which sums is 6,019,463 05

which, being deducted from the sum of 6,647,067 00

____________

agreeably to the directions of the ninth article of
the treaty of 1846, left a balance due the Cherokee
Nation of 627,603 95

They also reported that there was a further sum of $96,999.31, charged to the general treaty fund, which had been paid to the various agents of the Government connected with the removal of the Indians and which the Cherokees contended was an improper charge upon their fund. The facts as to this item were submitted by the Auditor and Comptroller without recommendation for the decision of the question by Congress, and Congress, admitting the justice of the Cherokee claim, included this sum in the subsequent appropriation of February 27, 1851.[505]

It was also resolved[506] by the United States Senate (as umpire under the treaty of 1846) that the Cherokee Nation was entitled to the sum of $189,422.76 for subsistence, being the difference between the amount allowed by act of June 12, 1838, and the amount actually paid and expended by the United States, and which excess was improperly charged to the treaty fund in the report of the accounting officers of the Treasury just recited. It was further resolved that interest at 5 per cent. should be allowed upon the sums found due the Eastern and Western Cherokees respectively from June 12, 1838. The amount of this award was made available to the Cherokees by Congressional appropriation of September 30, 1850.[507]