Chapter XI: Front Matter (11)

_Settlement of claims of "Old Settler" party._--By the fourth and fifth articles of the treaty of 1846,[508] provision is made and a basis fixed for the settlement with that part of the Cherokee Nation known as "Old Settlers" or "Western Cherokees," or, in other words, those who had emigrated under the treaties of 1817,[509] 1819,[510] and 1828,[511] and who were, at the date of the treaty of 1835,[512] an organized and separate nation of Indians, whom the United States had recognized as such by the treaties of 1828 and 1833[513] made with them. In making the treaty of 1835 with the Cherokees east, which provided for their final and complete transfer to the country west, then occupied by the "Western Cherokees," and guaranteed in perpetuity by two treaties, upon considerations alone connected with them, the rights of the latter seem to have been forgotten. The consequences of the influx of the Eastern Cherokees were such that upon their arrival the "Old Settlers" were thrown into a hopeless minority; their government was subverted, and a new one, imported with the emigrants coerced under the treaty of 1835, substituted in its place.

To allay the discontent thus caused in the minds of the "Old Settlers," and to provide compensation to them for the undivided interest which the United States regarded them as owning in the country east of the Mississippi, under the equitable operation of the treaty of 1828, was one of the avowed objects of the treaty of 1846. To ascertain their interest it was assumed that they constituted one-third of the entire nation, and should therefore be entitled to an amount equal to one-third of the treaty fund of 1835, after all just charges were deducted. This residuum of the treaty fund, contemplated by the fourth article of the treaty of 1846, amounted, as first calculated, to $1,571,346.55, which would make the proportionate share of the "Old Settlers" amount to the sum of $523,782.18. The act of September 30, 1850,[514] made provision for the payment to the "Old Settlers," in full of all demands under the provisions and according to the principles established in the fourth article of the treaty of 1846, of the sum of $532,896.96 with interest at 5 per cent. per annum. This was coupled with the proviso that the Indians who should receive the money should first respectively sign a receipt or release acknowledging the same to be in full of all demands under the terms of such article.

A year later,[515] when the "Old Settlers" were assembled for the purpose of receiving this per capita money, although their necessities were such as to compel compliance with the conditions of payment, they entered a written protest against the sum paid being considered in full of all their demands, and appealed to the United States for justice, indicating at the same time in detail wherein they were entitled to receive large additional sums.

For many years this additional claim of the "Old Settlers" practically lay dormant. But toward the close[516] of the year 1875 they held a convention or council at Tahlequah, the capital of the Cherokee Nation, and resolved to prosecute their claim to a "speedy, just, and final settlement." To that end three of their people were appointed commissioners with full power to prosecute the claim, employ counsel, and to do all other necessary and proper things in the premises. The council set apart and appropriated 35 per centum of whatever should be collected to defray all the necessary expenses attendant upon such prosecution and collection. Several subsequent councils have been held about the subject,[517] and the matter continued to be pressed upon the attention of Congress until, by the terms of an act approved August 7, 1882,[518] that body directed the Secretary of the Interior to investigate this and other matters relating to the Cherokees and to report thereon to Congress. Pursuant to the purpose of this enactment, Mr. C. C. Clements was appointed a special agent of the Interior Department with instructions to make the required investigation. He submitted three reports on the subject, the latter two being supplemental to and corrective of the first. From this last report[519] it appears that he finds the sum of $421,653.68 to be due to the "Old Settler" Cherokees, together with interest at 5 per cent. per annum from September 22, 1851. In brief his findings are--

1. That they received credit, under the settlement made under the treaty of 1846, for one-third of the fund, and were chargeable with one-third of the items properly taxable thereto.

2. Independent of article four of the treaty of 1846, the "Old Settlers" were not chargeable with removal out of the $5,000,000 fund.

3. Independent of that article, they should not be charged out of the $5,000,000 fund with the removal of the Eastern Cherokees, for three reasons: (_a_) The "Old Settlers" removed themselves at their own expense; (_b_) the Eastern Cherokees were not required to reimburse the "Old Settlers" under the treaty of 1835; and (_c_) the Government was required to remove the Eastern Cherokees.

4. They were not properly chargeable with the removal of the Ross party of 13,148, because (_a_) the United States were to remove them, and (_b_) an appropriation of $1,047,067 was made for that purpose, for which the "Old Settlers" received no credit in the settlement under the treaty of 1846.

5. Having received credit for their proportion of the $600,000, under article three of the treaty of 1836, they were chargeable with their proportion of that fund used for removal, etc., _i.e._, 2,495 Indians at $53.33 per head, amounting to $133,058.35.

6. The Eastern Cherokees were properly chargeable with the removal of the Ross party, and therefore they received credit for the $1,047,067 appropriated by the act of June 12, 1838.

7. In the settlement, the $5,600,000 fund was charged with the removal and subsistence of 18,026 Indians at $53.33-1/3 per head, amounting to $961,386.66.[520]

This report, with accompanying letters of the Commissioner of Indian Affairs and the Secretary of the Interior, was transmitted to Congress by the President, with a special message, on the 17th of December, 1883.

_Other questions under the treaty of 1835._--There were two other questions about which the parties could not agree, and upon which, by the eleventh article of the treaty of 1846, the Senate of the United States was designated as the umpire. The first of these was whether the amount expended for the one year's subsistence of the Eastern Cherokees, after their arrival in the West, should be borne by the United States or by the Cherokee funds, and, if by the latter, then whether subsistence should be charged at a greater rate than $33-1/3 per head.

The Senate committee to whom the subject was referred for report to that body found much difficulty, as shown by their report, in reaching a just conclusion. They observed that the faulty manner in which the treaty of 1835 was drawn, its ambiguity of terms, and the variety of constructions placed upon it, had led to a great embarrassment in arriving at the real intention of the parties, but that upon the whole the opinion seemed to be justified that the charge should be borne by the United States. By a strict construction of the treaty of 1835, the expense of a year's subsistence of the Indians was no doubt a proper charge upon the treaty fund and was so understood by the Government at the time. In the original scheme of the treaty furnished the commissioners empowered to treat with the Indians this item was enumerated among the expenditures, etc., to be provided for in its several articles, and which made up the aggregate sum of $5,000,000 to be paid for the Cherokee country. The Secretary of War, in a letter addressed to John Ross and others in 1836, had said that the United States, having allowed the full consideration for their country, nothing further would be conceded for expenses of removal and subsistence. The whole history of the negotiation of the treaty shows that the $5,000,000 was the maximum sum which the United States were willing to pay, and that this was not so much a consideration for the lands and possessions of the Indians as an indemnity to cover the necessary sacrifices and losses in the surrender of one country and their removal to another.

On the other hand, among the circumstances establishing the propriety of a contrary construction may be mentioned the language of the eighth article of the treaty, that "the United States also agree and stipulate to remove the Cherokees to their new homes and to subsist them one year after their arrival there." This language imports pecuniary responsibility rather than a simple disbursement of a trust fund. In the "talk" also which was sent[521] by President Jackson to the Indians to explain the advantages of the proposed treaty, he mentioned that the stipulations offered "provide for the removal at the expense of the United States of your whole people, and for their subsistence a year after their arrival in their new country."

It was also the common practice of the United States in removing the Indian tribes from one locality to another to defray the expense of such removal, and this was done in the cases of their neighbors, the Chickasaws, Choctaws, Creeks, and Seminoles. It is a matter of but little surprise, therefore, that a conflicting interpretation of this treaty through a series of years should have produced grave embarrassments.

Independent, however, of the literal provisions of the treaty of 1835, there existed other grounds upon which to base a judgment favorable to the claims of the Cherokees. The treaty with the supplementary article was finally ratified on the 23d of May, 1836, and by its provisions the Cherokees were required to remove within two years. It had been concluded (in the face of a protest from a large majority) with a small minority of the nation. Within the two years those who had favored the treaty had mostly emigrated to the West under its provisions.[522] The large majority of the nation, adopting the counsels of John Ross, had obstinately withstood all the efforts of the Government to induce them to adopt the treaty or emigrate. They had repudiated its obligation and denounced it as a fraud upon the nation. In the mean time the United States had appointed its agents under the treaty and collected a large military force to compel its execution. The State of Georgia had adopted a system of hostile legislation intended to drive them from the country. She had surveyed their territory and disposed of their homes and firesides by lottery. She had dispossessed them of a portion of their lands, subjected them to her laws, and at the same time disqualified them from the enjoyment of any political or civil rights. In this posture of affairs, the Cherokees who had never abandoned the vain hope of remaining in the country of their birth or of obtaining better terms from the United States made new proposals to the United States through John Ross and others for the sale of their country and emigration to the West. Still pursuing the idea that they were aliens to the treaty of 1835 and unfettered by its provisions, they proposed to release all claim to their country and emigrate for a named sum of money in connection with other conditions, among which was the stipulation that they should be allowed to take charge of their own emigration and that the United States should pay the expenses thereof. To avoid the necessity of enforcing the treaty at the point of the bayonet and to obtain relief from counter obligations to Georgia by the compact of 1802 and to the Cherokees by the treaties of 1817 and 1819, the proposal was readily acceded to by the United States authorities.

On the 18th of May, 1838, the Secretary of War addressed a reply to the proposals of the Cherokee delegation, in which he said:

If it be desired by the Cherokee Nation that their own agents
should have charge of their emigration, their wishes will be
complied with and instructions be given to the commanding general
in the Cherokee country to enter into arrangements with them to
that effect. With regard to the expense of this operation, which
you ask may be defrayed by the United States, in the opinion of the
undersigned the request ought to be granted, and an application for
such further sum as may be required for this purpose shall be made
to Congress.

A recommendation was made to Congress in compliance with this promise. Based upon an estimate of the probable cost thereof, Congress by act of June 12, 1838,[523] appropriated the sum of $1,047,067 in full for all objects specified in the third article of the treaty and the further object of aiding in the subsistence of the Indians for one year after their removal, with the proviso that no part thereof should be deducted from the $5,000,000 purchase money of their lands.

Here was a clear legislative affirmation of the terms offered by the Indians and acceded to by the Secretary of War. It was a new contract with the Ross party, outside of the treaty, or rather a new consideration offered to abide by its terms, by which the Secretary of War agreed that the expenses of removal and subsistence, as provided for by the treaty of 1835, should be borne by the United States, and Congress affirmed this act by providing that no part of the sum appropriated should be charged to the treaty fund. The appropriation thus made proved wholly inadequate for the purposes of removal and subsistence, the expense of which aggregated $2,952,196.26,[524] of which the sum of $972,844.78 was expended for subsistence. Of this last amount, however, $172,316.47 was furnished to the Indians when in great destitution upon their own urgent application, after the expiration of the "one year," upon the understanding that it was to be deducted from the moneys due them under the treaty. This left the net sum of $800,528.31 paid for subsistence and charged to the aggregate fund. Of this sum the United States provided by the act of June 12, 1838, for $611,105.55, leaving unprovided for, the sum of $189,422.76. This, added to the balance of $724,603.37 found due in pursuance of the report of the accounting officers of the Treasury,[525] amounted in the aggregate to $914,626.13.

The item of $189,422.76 was appropriated, as previously stated, by the act of September 30, 1850, and that of $724,603.37 by the act of February 27, 1851. Interest was allowed on each sum at the rate of 5 per cent. per annum from the date of the act of June 12, 1838, with the understanding that it should be in full satisfaction and a final settlement of all claims and demands whatsoever of the Cherokee Nation against the United States under any treaty theretofore made with them. Instructions were issued[526] in the fall of 1851 to John Drennan, superintendent of Indian affairs, to proceed without delay to make the payment. For this purpose a remittance was made to him at New Orleans of the sums of $1,032,182.33 and $276,179.84. The first of these sums, he was advised by his instructions, was intended for the per capita payment, principal and interest, to the Eastern Cherokees, or Ross party, in pursuance of the act of February 27, 1851. The latter was for a similar payment to the same parties in compliance with the terms of the act of September 30, 1850, previously mentioned. These sums were to be distributed, according to the census roll, among 14,098 Cherokees within his superintendency, and were exclusive of the pro rata share to which those Cherokees east of the Mississippi living within the States of North Carolina, Georgia, Tennessee, and Alabama were entitled. For the payment of the latter a clerk was detailed from duty in the Office of Indian Affairs to act in the capacity of a special disbursing agent.

The payments made by Superintendent Drennan, coupled with the conditions prescribed by the act of Congress, were very unsatisfactory to the Government or Ross party of Cherokees. Therefore their national council addressed[527] to the United States a solemn and formal protest against the injustice they had suffered through the treaties of 1835 and 1846, and the statement of account rendered by the United States under the provisions of those treaties.[528] After thus placing themselves on record, the Cherokees accepted the money and complied with the conditions prescribed in the act of Congress.

AFFAIRS OF THE NORTH CAROLINA CHEROKEES.

As has been already remarked, at the time of the general removal of the Cherokee Nation in 1838 many individuals fled to the mountains of Tennessee and North Carolina and refused to emigrate. They always maintained their right to an equal participation in the personal benefits provided in the treaty of 1835, which, though not denied, was held by the executive authorities of the United States to be conditional upon their removal west. At length by an act of Congress approved July 29, 1848,[531] provision was made for causing a census to be taken of all those Cherokees who remained in the State of North Carolina after the ratification of the treaty of 1835 and who had not since removed west. An appropriation was made equal to $53.33-1/3 for each of such individuals or his or her representative, with interest at 6 per cent per annum from the 23d of May, 1836. Furthermore, whenever any of such individuals should manifest a desire to remove and join the tribe west of the Mississippi, the Secretary of War was authorized to expend their pro rata share of the foregoing fund, or so much thereof as should be necessary, toward defraying the expense of such removal and subsistence for one year thereafter, the balance, if any, to be paid to the individual entitled. The amount of this appropriation, it was stipulated, should be refunded to the United States Treasury from the general fund of the Cherokee Nation under the treaty of 1835. The census mentioned was taken by J. C. Mullay in 1849, and the number found to be entitled to the benefits of the appropriation was 1,517,[532] which by additions was increased to 2,133. Under the appropriation acts of September 30, 1850, and February 27, 1851, these Cherokees remaining east of the Mississippi were entitled to their pro rata share of the amounts thus appropriated. Alfred Chapman was accordingly detailed[529] from the Interior Department to make the per capita payment, and was furnished with the amounts of $41,367.31 and $156,167.19 under those respective acts. He was directed to base his payments upon the census roll furnished him, which showed 2,133 Indians to be entitled. By section 3 of an act approved March 3, 1855,[530] provision was made for the distribution per capita among the North Carolina Cherokees on the Mullay roll[533] of the fund established by the act of July 29, 1848, provided that each Indian so receiving such payment in full should assent thereto. As a further condition to the execution of this act it was stipulated that satisfactory assurance should be given by the State of North Carolina, before such payment, that the Cherokees in question should be permitted to remain permanently in that State. The desired legislative assurance was not given by North Carolina until February 19, 1866, and the money was not, therefore, distributed, but carried to the surplus fund in the Treasury. Afterwards, by act of March 3, 1875,[534] it was made applicable to the purchase and payment of lands, expenses in quieting titles, etc.

In order to determine who were the legal heirs and representatives of those enrolled in 1849, but since deceased, the Secretary of the Interior was directed by an act of Congress, approved July 27, 1868,[535] to cause another census to be taken, to serve as a guide in future payments. It was further provided by the same act that the Secretary of the Interior should cause the Commissioner of Indian Affairs to take the same supervisory charge of this as of any other tribe of Indians.

This second census was taken by S. H. Sweatland in 1869, and he was instructed to make payment of interest then due to the Indians, guided by his roll, but on the same principle on which previous payments had been effected, that is, to those individuals only whose names appeared on the Mullay census roll, or their legal heirs or representatives, as ascertained by census taken by himself. As remarked by the Commissioner of Indian Affairs, the difficulty of tracing Indian genealogy through its various complications, in order to determine who are legal representatives of deceased Indians, without any rules by which hereditary descent among them may be clearly established, was fully demonstrated in the payment made by Mr. Sweatland, which was the occasion of many complaints and even of litigation.

The landed interests of these North Carolina Cherokees had also since the treaty of 1835 become much complicated, and through their confidence in others, coupled with their own ignorance of proper business methods, they were likely to lose the title to their homes. At this juncture Congress, by an act approved July 15, 1870,[536] authorized suit in equity to be brought in the name of the Eastern Band of Cherokee Indians in the district or circuit courts of the United States for the recovery of their interest in certain lands in North Carolina. This suit was instituted in the circuit court of the United States for the western district of North Carolina in May, 1873, against William. H. Thomas and William Johnston. Thomas, as the agent and trustee of the Indians, it was alleged had received (between 1836 and 1861) from them and for their benefit large sums of money, which had or ought to have been invested by him, in pursuance of various contracts with the Indians, in certain boundaries of land as well as in a number of detached tracts. The legal title to all these lands was taken by Thomas, and was still held in his own name, he having in the mean time become _non compos mentis_. It was alleged against the other defendant, Johnston, that in the year 1869 he had procured sales to be made of all these lands to satisfy judgments obtained by him against Thomas, and that he had bought in the lands at these sales and taken sheriff's deeds therefor, although having himself a knowledge of the existing equities of the Indians. In fact, that after the purchase of the lands he had entered into a contract with the Indians to release to them all the rights he had acquired by such purchase for the sum of $30,000, payable within eighteen months. Under this contract, and at the time of its execution, the Indians paid him $6,500.

A suit in law was also instituted, at the same time with the foregoing, against James W. Terrell, their former agent (from 1853 to 1861), and his sureties, the above named Thomas and Johnston, to recover a balance of Cherokee funds which he had received for their use from the United States and which it was alleged he had not properly accounted for.

At the May term, 1874, of the circuit court the matters in dispute were by agreement submitted to a board of arbitrators. The arbitrators made their report and award, which were confirmed by the court at the November term, 1874.

The award finds that Thomas purchased for the Indians as a tribe and with their funds a large tract of land on Soco Creek and Oconalufty River and their tributaries, known as the Qualla boundary, and estimated by the arbitrators to contain 50,000 acres. It declares that such tract belongs to and shall be held by the Eastern Band of Cherokees as a tribe.

The award also determines the titles of a large number of individual Indians to tracts of land outside of the Qualla boundary. It further finds that the Indians owe Thomas a balance toward the purchase-money of the Qualla boundary of $18,250, from which should be deducted the sum of $6,500 paid by the Indians to Johnston, with interest thereon to the date of the award, amounting in the aggregate to $8,486.

The award also finds that Terrell and his bondsmen are responsible to the Cherokees for an unaccounted-for balance of $2,697.89, which should also be deducted from the amount due Thomas, leaving a net balance due from the Indians on the purchase money of the Qualla boundary of $7,066. Upon the payment of this sum the award declares they should be entitled to a conveyance from Johnston of the legal title to all the lands embraced within that boundary.[537]

To enable the Indians to clear off this lien upon their lands, Congress, upon the recommendation of the Indian Department, provided by the terms of an act approved March 3, 1875,[538] that the funds set apart by the act of July 29, 1848, should be applied under the direction of the Secretary of the Interior for the use and benefit of the Eastern Band of Cherokees. Specifically these funds were to be used in perfecting the titles to the lands awarded to them and to pay the costs, expenses, and liabilities attending their recent litigations, also to purchase and extinguish the titles of any white persons to lands within the general boundaries allotted to them by the court and for the education, improvement, and civilization of their people. This was done and the Indians have now possession of their rightful domain.[539]

PROPOSED REMOVAL OF THE CATAWBA INDIANS TO THE CHEROKEE COUNTRY.

It is perhaps pertinent to remark before proceeding further that by the terms of an act of Congress approved July 29, 1848 (United States Statutes at Large, Vol. IX, p. 264), an appropriation of $5,000 was made to defray the expenses of removing the Catawba Indians from Carolina to the country west of the Mississippi River, provided their assent should be obtained, and also conditioned upon success in securing a home for them among some other congenial tribe in that region without cost to the Government.

These Catawbas were but a miserable remnant of what a century and a half earlier had been one of the most powerful and warlike of the Southern tribes. They once occupied and controlled a large region of country in the two Carolinas, though principally in the Southern province. Their generally accepted western limit was the Catawba River and its tributaries, the region between this river and Broad River being usually denominated a neutral hunting ground for both the Catawbas and the Cherokees. An enmity of long standing had existed between the Catawbas and the Six Nations, and war parties of both nations for many years were wont to make long and devastating forays into each other's territory. The casualties of war and the ravages of infectious diseases had long prior to the beginning of the present century rendered the Catawbas insignificant in numbers and importance. Their territorial possessions had been curtailed to a tract of some fifteen miles square on the Catawba River, on the northern border of South Carolina, and the whites of the surrounding region were generally desirous of seeing them removed from the State.

In pursuance therefore of the provisions of the act of 1848 an effort was made by the authorities of the United States to find a home for them west of the Mississippi River. Correspondence was opened with the Cherokee authorities on the subject during the summer of that year, but the Cherokees being unwilling to devote any portion of their domain to the use and occupation of any other tribe without being fully compensated therefor, the subject was dropped.

FINANCIAL DIFFICULTIES OF THE CHEROKEES.

Unusual expenditures are always incident to the removal and establishment of a people in an entirely new country. Domestic dissensions and violence of a widespread character have a tendency to destroy the security of life and property usually felt in a well governed community, and insecurity in this manner becomes the parent of idleness and the destroyer of ambition.

Thus from a combination of adverse circumstances the Cherokees since their removal had been subjected to many losses of both an individual and a national character. Their debts had come to be very oppressive, and they were anxiously devising methods of relief.

_Proposed cession of the "neutral land."_--At length in the fall of 1852 they began to discuss the propriety of retroceding to the United States the tract of 800,000 acres of additional land purchased by them from the Government under the provisions of the treaty of 1835. This tract was commonly known as the "neutral land," and occupied the southeast corner of what is now the State of Kansas.

It was segregated from the main portion of their territory, and had never been occupied by any considerable number of their people. After a full discussion of the subject in their national council it was decided to ask the United States to purchase it, and a delegation was appointed to enter into negotiations on the subject. They submitted their proposition in two communications,[540] but after due consideration it was decided by the Secretary of the Interior[541] to be inexpedient for the Government to entertain the idea of purchase at that time. Thereupon, under instructions from their national council, they withdrew the proposition.

As soon as the Cherokees resident in North Carolina and the neighboring States learned of this proposed disposition of the "neutral land" they filed a protest[542] against any sale of it that did not make full provision for securing to them a proportional share of the proceeds.

MURDER OF THE ADAIRS AND OTHERS.

In September of this year occurred another of those sudden acts of violence which had too frequently marked the history of the Cherokee people during the preceding fifteen years. Superintendent Drew first reported[543] to the Indian Office that a mob of one hundred armed men had murdered two unoffending citizens, Andrew and Washington Adair; that not less than two hundred men were in armed resistance to the authorities of the nation, who were unable or disinclined to suppress the insurrection, and that from sixty to one hundred of the best-known friends of the Adairs had been threatened with a fate similar to theirs. The presence and protection of an additional force of United States troops was therefore asked to preserve order in the Cherokee country and to allay the fears of the settlers along the border of Arkansas.

An additional United States force was accordingly dispatched, but the Cherokee authorities found little difficulty in controlling and allaying the excitement and disorder without their aid. In truth, the first report had been in large measure sensational, the facts as reported by Agent Butler some two months later[544] being that the murder was occasioned by a purely personal difficulty and had no connection with any of the bitter political animosities that had cursed the nation for so many years. It seems that several years previous to the murder a Cherokee by the name of Proctor and one of the Adairs had a difficulty. Adair's friends took Proctor a prisoner through false pretenses and murdered him while in their hands. Proctor's friends in consequence were much enraged and made violent threats of retaliation. In fact during the period immediately following Proctor's death several other persons had been killed in consequence of the existing feud. The murder of the Adairs was the culmination of their enemies' revenge. The murderers were arrested, tried, and acquitted by the Cherokee courts.[545]

FINANCIAL DISTRESSES--NEW TREATY PROPOSED.

The year 1854 was in an unusual degree a period of quiet and comparative freedom from internal dissensions among the Cherokees. Their government was, however, still in an embarrassed financial condition. Their national debt was constantly increasing, and they possessed no revenue aside from the small income derived from the interest on their invested funds in the hands of the United States.

For a while, following the payment of their per capita money, they were in the enjoyment of plenty, but with the natural improvidence of a somewhat primitive people, their substance was wasted and no lasting benefits were derived therefrom. To add to their embarrassments, a severe drought throughout the summer resulted in an almost total failure of their crops. Distress and starvation seemed to be staring them in the face. Their schools, in which they had taken much commendable pride, were languishing for want of the funds necessary to their support, and the general outlook was anything but cheerful.[546]

In this dilemma a delegation was sent to Washington with authority and instructions to negotiate, if possible, another treaty with the United States, based upon the following conditions:[547]

1. The Cherokees to retrocede to the United States the 800,000 acre tract of "neutral land" at the price of $1.25 per acre, as a measure of relief from their public debt burdens and to replenish their exhausted school fund.

2. To cede to the United States the unsold portion of the 12-mile-square school fund tract in Alabama, set apart by the treaty of 1819, also at $1.25 per acre, together with the other small reserves in Tennessee set apart for the same purpose and by the same treaty, for which latter tracts they should receive $20,000.

3. The United States to compensate the Cherokees living on the 800,000 acre tract for the value of their improvements.

4. The United States to rectify the injustice done to many individual Cherokees in regard to their claims under the treaty of 1835.

5. The United States to compensate the Cherokees for damages sustained through the action of citizens of the former in driving and pasturing stock in the Cherokee country, and to provide effectual measures for the prevention of such losses in the future.

6. The United States to cause a careful investigation to be made as to the status of the Cherokee invested fund and to render an account of the accrued and unpaid interest thereon.

7. The Cherokees to be reimbursed for money expended out of their funds for subsistence after the expiration of the period of "one year" provided by the treaty of 1835, but before their people had opportunity to become settled in their new homes.

8. A just compensation to be made to the Cherokees for the heavy losses sustained in their sudden and forced removal from their Eastern home.

9. An absolute and speedy removal of the garrison at Fort Gibson.

10. That the treaty should contain a clear and specific definition of the rights and status of the Cherokee Nation in its political attitude toward and relations with the United States.

The proposed treaty formed the subject of much careful consideration, and negotiations were conducted throughout a large portion of the winter, without, however, reaching satisfactory results.

The failure of the delegation to secure definite action on these matters caused a great degree of dissatisfaction among all classes of their people.[548] They were anxious to sell their surplus detached land, and by that means free themselves from financial embarrassment. They were fully conscious that, so long as their financial affairs continued in such a crippled condition, there was little ground for a hopeful advancement in their morals or civilization. A traditional prejudice against the policy of parting with any of their public domain was deep seated and well nigh universal among the Cherokees, but so grinding and irksome had the burdens of their pecuniary responsibilities become and so anxious were they to discharge in good faith their duty to their creditors that this feeling of aversion was subordinated to what was believed to be a national necessity.

SLAVERY IN THE CHEROKEE NATION.

The reports of the Cherokee agent during the year 1855 devote considerable space to the discussion of the slavery question in its relations to and among that nation, from which it appears that considerable local excitement, as well as a general feeling of irritation and insecurity among the holders of slave property, had been superinduced by the antislavery teachings of the Northern missionaries and emissaries of the various free soil organizations throughout the North. Three years later the agent reported that the amicable relations which existed between the Cherokees and the General Government certainly merited the latter's fostering care and protection, for already they were evincing much interest in all questions that concerned its welfare; that the majority of them were strongly national or democratic in political sympathy, though it was with regret he was obliged to report the existence of a few black republicans, who were the particular foundlings of the abolition missionaries. This same agent the following year (1859), after commending their enterprise and thrift, remarks: "I am clearly of the opinion that the rapid advancement of the Cherokees is owing in part to the fact of their being slaveholders, which has operated as an incentive to all industrial pursuits, and I believe if every family of the wild roving tribes of Indians were to own a negro man and woman, who would teach them to cultivate the soil and to properly prepare and cook their food, and could have a schoolmaster appointed for every district, it would tend more to civilize them than any plan that could be adopted." The latter part of this proposition perhaps no one would be willing to dispute, but in the light of twenty-five years of eventful history made since its promulgation, the author himself, if still living, would scarcely be so "clearly of opinion" concerning the soundness of his first assumption.

REMOVAL OF WHITE SETTLERS ON CHEROKEE LAND.

The year 1856 was characterized by no event in the official history of the Cherokees of special importance, except, perhaps, the expulsion of white settlers who had intruded upon the "neutral lands," in which the aid of the military forces of the United States was invoked.

FORT GIBSON ABANDONED BY THE UNITED STATES.

The long and urgent demands of the Cherokees for the withdrawal of the garrison of United States troops at Fort Gibson was at length complied with in the year 1857,[549] and under the terms of the third article of the treaty of 1835 the fort and the military reserve surrounding it reverted to and became a part of the Cherokee national domain. In his annual message of that year to the Cherokee council John Ross, their principal chief, recommended the passage of a law which should authorize the site of the post to be laid off into town lots and sold to citizens for the benefit of the nation, reserving such lots and buildings as seemed desirable for future disposition, and providing for the suitable preservation of the burying-grounds in which, among others, reposed the remains of several officers of the United States Army. This recommendation was favorably acted upon by the council, and town lots sold exclusively to the citizens of the nation brought the sum of $20,000.[550]

REMOVAL OF TRESPASSERS ON "NEUTRAL LAND."

White settlers having for several years preceding, in defiance of the notification and authority of the General Government, continued their encroachments and settlement on the "Cherokee neutral land," and the Cherokee authorities having made repeated complaints of these unauthorized intrusions, measures were taken to remove the cause of complaint. Notice was therefore given to these settlers in the winter of 1859, requiring them to abandon the lands, by the 1st of April following. No attention was paid to the notice, but the settlers went on and planted their crops as usual. The newly appointed Cherokee agent, having failed to reach his agency until late in the spring, proceeded to the neutral land in August, and again notified the trespassers to remove within thirty-five days. To this they paid no more heed than to the first notification. Some two months later,[551] therefore, the agent, accompanied by a detachment of United States dragoons, under command of Captain Stanley, marched into the midst of the settlers and again commanded their immediate removal. Upon their refusal to comply he adopted the plan of firing their cabins, which soon brought them to terms. They proposed that if he would desist in his forcible measures and withdraw the troops, they would quietly remove on or before the 25th of November, unless in the mean time they should receive the permission of the Government to remain during the winter. This the agent agreed to, and subsequently the permission was granted them to so remain.

In connection with this subject it appears from the records of the Department that owing to an error in protracting the northern boundary of the "neutral land," the line was made to run 8 or 9 miles south of the true boundary, leaving outside of the reserve as it was marked on the map, a strip known as the "dry woods," which should have been included in it; it was generally believed that the "dry woods" was a part of the New York Indian reservation, on which settlements were permitted, and as the settlers on that particular portion had gone there in good faith the agent did not molest them.[552] The Secretary of the Interior himself expressed the opinion that the "dry woods" settlers were law abiding citizens and had settled there under a misapprehension of the facts, and that as they had expended large sums in opening and improving their farms it would be a great hardship if they should be compelled to remove. He therefore suspended the execution of the law as to them until the approaching session of Congress, in order that they might have an opportunity of applying to that body for relief. The Cherokees it was well known were anxious to dispose of the land, and the Secretary declared his intention of recommending the passage of a law with their consent, providing for the survey and sale of the "neutral lands," after the manner of disposing of the public lands, the proceeds to be applied to the benefit of the Cherokees. The outbreak of the great rebellion so soon thereafter, however, precluded the consummation of this proposed legislation.

JOHN ROSS OPPOSES SURVEY AND ALLOTMENT OF CHEROKEE DOMAIN.

During the winter of 1859-'60, the Commissioner of Indian Affairs, believing that a survey and subdivision of the Cherokee national domain, and its allotment in severalty among the members of the tribe, would produce an effect favorable to their progress in the cultivation of the soil, submitted the suggestion for the consideration of their lawfully constituted authorities. John Ross, as principal chief of the nation, in replying to this suggestion,[553] declined on behalf of the nation to give it favorable consideration, (1) because it conflicted with the general policy of the Government through which the Cherokees were removed from their homes east of the Mississippi River; (2) because it was inconsistent with existing treaties between the United States and the Cherokee Nation; (3) because it could not be done without a change in the constitution of the nation; and, finally, that it would not be beneficial to the Cherokee people.

POLITICAL EXCITEMENT IN 1860.

The year 1860 was characterized by great excitement and local disturbances. Many affrays occurred and numerous murders were perpetrated. The excitement and bitterness of feeling involved in the issues at stake between the great political parties of the country in the pending Presidential election extended to and pervaded the entire population of the civilized tribes of Indian Territory.

They were many of them slaveholders, especially the half-breeds and mixed bloods. They therefore vehemently resented the introduction and dissemination of any doctrines at variance with the dogma of the divine origin of slavery or that should set up any denial of the moral and legal right of the owner to the continued possession of his slave property. The missionaries and many of the school teachers among the Cherokees were persons of strong anti-slavery convictions, and the former especially were zealous in their dissemination of doctrines fatal alike to the peace and endurance of a slave community. In September John B. Jones, a Baptist missionary, who had devoted much of his life to Christian work among the Indians, was notified by the agent to leave the country within three weeks, because of the publication of an article from his pen in a Northern paper, wherein he stated that he was engaged in promulgating anti-slavery sentiments among his flock.[554] Others were in like manner compelled to leave, and the excitement continued to increase daily until the outbreak of hostilities precipitated by the attack on Fort Sumter.

Before the actual outbreak of hostilities, in the winter of 1860, adherents of the Southern cause, among the most effectual and influential of whom were the official agents of the United States accredited to the Indian tribes, were active in propagating the doctrines of secession among the Cherokees, as well as among other tribes of the Indian Territory. Secret societies were organized, especially among the Cherokees, and Stand Watie, the recognized leader of the old Ridge or Treaty party, was the leader of an organization of Southern predilections known as the Knights of the Golden Circle. A counter organization was formed from among the loyally inclined portion of the nation, most, if not all, of whom were members of the Government or Ross party. The membership of this latter society was composed principally of full blood Cherokees, and they termed themselves the "Ki-tu-wha," a name by which the Cherokees were said to have been known in their ancient confederations with other Indian tribes.[555] The distinguishing badge of membership in this association was a pin worn in a certain position on the coat, vest, or hunting shirt, from whence members were given the designation in common parlance of "Pin" Indians. According to the statement of General Albert Pike, however (and I think he gives the correct version), this "Pin" society was organized and in full operation long before the beginning of the secession difficulties, and was really established for the purpose of depriving the half-breeds of all political power.[556] Be this as it may, however, the society was made to represent in the incipient stages of the great American conflict the element of opposition to an association with the Southern Confederacy and on one occasion it prevented the distinctively Southern element under the leadership of Stand Watie from raising a Confederate flag at Tahlequah.[557] It was also alleged to have been established by the Rev. Evan Jones, a missionary of more than forty years' standing among the Cherokees, as an instrument for the dissemination of anti-slavery doctrines.[558]

CHEROKEES AND THE SOUTHERN CONFEDERACY.

In May, 1861, General Albert Pike, of Arkansas, was requested by Hon. Robert Toombs, secretary of state of the Confederate States, to visit the Indian Territory as a commissioner, and to assure the Indians of the friendship of those States. He proceeded to Fort Smith,[559] where, in company with General Benjamin McCulloch, he was waited on by a delegation of Cherokees representing the element of that people who were enthusiastically loyal to the Confederacy and who were desirous of ascertaining whether in case they would organize and take up arms for the South the latter would engage to protect them from the hostility of John Ross and the association of "Pin" Indians who were controlled by him.[560] Assurances were given of the desired protection, and messengers were sent to a number of the prominent leaders of the anti-Ross party to meet General Pike at the Creek Agency, two days after he should have held an interview with Ross, then contemplated, at Park Hill. General Pike, as he alleges, had no idea of concluding any terms with Ross, and his intention was to treat with the leaders of the Southern party at the Creek Agency. At the meeting held with Ross at Park Hill, the latter refused to enter into any arrangement with the Confederate Government, and obstinately insisted on maintaining an attitude of strict neutrality. After vainly endeavoring to shake the old man's purpose, General McCulloch at length agreed to respect his neutrality so long as the Federal forces should refrain from entering the Cherokee country.[561]

General McCulloch having been ordered by the Confederate authorities to take command of the district of country embracing the Indian Territory, with headquarters at Fort Smith, addressed[562] a communication to John Ross again assuring him of his intention to respect the neutrality of the Cherokee people, except that all those members of the tribe who should so desire must be permitted to enlist in the Confederate army, without interference or molestation, for purposes of defense in case of an invasion from the North. To this Ross replied,[563] reasserting the determination of the Cherokees to maintain a strict neutrality between the contending parties. He refused his consent to any organization or enlistment of Cherokee troops into the Confederate service, for the reason, first, it would be a palpable violation of the Cherokee position of neutrality, and, second, it would place in their midst organized companies not authorized by the Cherokee laws, but in violation of treaty, and which would soon become effective instruments in stirring up domestic strife and creating internal difficulties among the Cherokee people. General McCulloch in his letter had assumed that his proposition for permitting enlistments of Cherokees of Confederate sympathies was in accordance with the views expressed to him by Ross in an interview occurring some eight or ten days previous, wherein the latter had observed that in case of an invasion from the North he himself would lead the Cherokees to repel it. Ross, in his reply above alluded to, takes occasion to assure McCulloch that the latter had misapprehended his language. It was only in case of a foreign invasion that he had offered to lead his men in repelling it. He had not signified any purpose as to an invasion by either the Northern or Southern forces, because he had not apprehended and could not give his consent to any.

Some time in August[564] a convention was assembled at Tahlequah upon the call of John Ross, to take into consideration the question of the difficulties and dangers surrounding the Cherokee Nation and to determine the most advisable method of procedure. At this convention a number of speeches were made, all of which were bitterly hostile in tone to the United States and favorable to an open alliance with the Southern Confederacy. Ross, among others, gave free expression to his views, and according to the published version of his remarks gave it as his opinion that an understanding with the Confederacy was the best thing for the Cherokees and all other Indians to secure and that without delay; that, as for himself, he was and always had been a Southern man, a State rights man; born in the South, and a slaveholder; that the South was fighting for its rights against the oppressions of the North, and that the true position of the Indians was with the Southern people. After this speech the convention, which was attended by four thousand male Cherokees, adopted without a dissenting voice a resolution to abandon their relations with the United States and to form an alliance with the Confederacy.

_Treaties between Confederate States and various Southern tribes._--General Pike did not see Ross again until September.[565] In the meantime, the latter had secured the attendance of a large number of representatives of both Northern and Southern tribes, at a convocation held at Antelope Hills, where a unanimous agreement was reached to maintain a strict neutrality in the existing hostilities between their white neighbors. The alleged purpose of this assembly, as stated by General Pike, was to take advantage of the war between the States, and form a great independent Indian confederation, but he defeated its purpose by concluding a treaty with the Creeks on behalf of the Confederate States, while their delegates were actually engaged in council at the Antelope Hills. Following his negotiations with the Creeks, he concluded treaties in quick succession with the Choctaws and Chickasaws, the Seminoles, the Wichitas, and affiliated tribes, including the absentee Shawnees and Delawares, and the Comanches.[566] On returning from his treaty with the Comanches, he was met before reaching Fort Arbuckle by a messenger bearing a letter from Ross and his council, accompanied by a copy of the resolutions of the council and a pressing personal invitation to repair to the Cherokee country and enter into a treaty with that tribe. He consented and named a day when he would meet Ross, at the same time writing the latter to notify the Osages, Quapaws, Senecas, and the confederated Senecas and Shawnees, to meet him at the same time. At the time fixed he proceeded to Park Hill (Ross's residence), where he concluded treaties with these various tribes[567] during the first week in October, reserving the negotiations with the Cherokees to the last, the treaty with whom was concluded on the 7th of the month at Tahlequah. This instrument was very lengthy, being comprised in fifty-five articles.[568] The preamble set forth that--