Chapter XII: Front Matter (12)

The Congress of the Confederate States of America having, by
an "Act for the protection of certain Indian tribes," approved the
21st day of May, in the year of our Lord one thousand eight hundred
and sixty-one, offered to assume and accept the protectorate of
the several nations and tribes of Indians occupying the country
west of Arkansas and Missouri, and to recognize them as their
wards, subject to all the rights, privileges, immunities, titles
and guarantees with each of said nations and tribes under treaties
made with them by the United States of America; and the Cherokee
Nation of Indians having assented thereto upon certain terms and
conditions: Now, therefore, the said Confederate States of America,
by Albert Pike, their commissioner, constituted by the President,
under authority of the act of Congress, in that behalf, with
plenary powers for these purposes, and the Cherokee Nation by the
principal chief, executive council, and commissioners aforesaid,
has agreed to the following articles, etc.

With some slight amendments to the instrument as originally concluded it was duly ratified by the Confederate States.

CHEROKEE TROOPS FOR THE CONFEDERATE ARMY.

Long before[569] the conclusion of this treaty, authority was given by General McCulloch to raise a battalion of Cherokees for the service of the Confederate States. Under this authority a regiment was raised in December, 1861, and commanded by Stand Watie, the leader of the anti-Ross party. A regiment had also been previously raised, ostensibly as home guards, the officers of which had been appointed by Chief Ross and the command assigned to Colonel Drew.[570] After the conclusion of the treaty this regiment was also placed at the service of the Confederate States, and in December[571] following, in an address to them, Ross remarked that he had raised the regiment "to act in concert with the troops of the Southern Confederacy."

These two regiments actively participated and co-operated in the military operations of the Confederates until after the battle of Pea Ridge, in which they were engaged.[572] In the summer of 1862,[573] following this battle, Colonel Weir, of the United States Army, commanding a force partly composed of loyal Indians on the northern border of the Cherokee country, sent a proposition to John Ross urging that the Cherokees should repudiate their treaty with the Confederacy and return to their former relations with the United States, offering at the same time a safe conduct to Ross and such of his leading counselors as he should designate through the Union lines to Washington, where they could negotiate a new treaty with the authorities of the United States. This proposition was declined peremptorily by Ross, who declared that the Cherokees disdained an alliance with a people who had authorized and practiced the most monstrous barbarities in violation of the laws of war; that the Cherokees were bound to the Confederate States by the faith of treaty obligations and by a community of sentiment and interest; that they were born upon the soil of the South and would stand or fall with the States of the South.[574]

A CHEROKEE CONFEDERATE REGIMENT DESERTS TO THE UNITED STATES.

Colonel Drew's regiment of Cherokees had now been in the Confederate service about ten months. During that period they had remained unpaid, were scantily clothed, and were generally uncared for, unthanked, and their services unrecognized.[575] When, therefore, Colonel Weir invaded the Cherokee country in July, 1862, and the power and prestige of the Confederacy seemed, for the time being, to have become less potent in that region, their troops having been withdrawn to other localities, these discontented and unfed Cherokee soldiers found themselves in a condition ripe for revolt. Almost _en masse_, they abandoned the Confederate service and enlisted in that of the United States.

_Conduct of John Ross._--Ross, finding that he had been abandoned by Drew's regiment, concluded to make a virtue of necessity and become a loyal man too, with the shrewd assertion that such had always been the true impulse of his heart; he had been overborne, however, by the authority and power of the Confederate Government and felt constrained to save his people and their material interests from total destruction by dissembling before the officials of that Government, seeking only the first opportunity, which he had now embraced, to return with his people to the fealty they so delighted to bear to the Federal Government.[576] He was escorted out of the Cherokee country by Colonel Weir's regiment and did not soon return. The burden of proof seems to be almost, if not quite, conclusive against his pretensions to loyalty up to this period, and now that the opportunity he had so long desired of placing himself and his people within the protection of the United States had arrived, instead of manifesting any of that activity which had characterized his conduct in behalf of the Confederate States, he retired to Philadelphia, and did not return to his people for three years.[577]

_O-poth-le-yo-ho-lo and his loyal followers._--General Pike, in his letter to the Commissioner of Indian Affairs pending the negotiation of the treaty of 1866, seeks to convey the impression that there were no actively loyal Indians among the Southern tribes during the incipient stages of the rebellion, and perhaps this is in large measure correct as to most of those tribes.

Their situation was such as would have worked confusion in the ideas of a less primitive and simple minded people. For years before the outbreak of the rebellion their superintendents, agents, and agency employés had been, almost without exception, Southern men or men of Southern sympathies. They were a slaveholding people, and the idea was constantly pressed upon them that the pending difficulties between the North and the South were solely the result of a determination on the part of the latter to protect her slave property from the aggressions and rapacity of the former. When at last hostilities commenced, they saw the magnitude of the preparation and the strength of the Confederate forces in their vicinity. The weakness of the Federal forces was equally striking. Within the scope of their limited horizon there was naught that seemed to shed a ray of hope upon the rapidly darkening sky of Federal supremacy. Those who were naturally inclined to sympathize with, and who retained a feeling of friendship and reverence for, the old Government were awed into silence. A sense of fear and helplessness for the time being compelled them to accept and apparently acquiesce in a state of affairs for which many of them had no heart.

After the Cherokee convention, at Tahlequah, in August, 1861, at which it was decided with such unanimity to renounce their treaty relations with the United States and to enter into diplomatic alliance with the Confederacy, O-poth-le-yo-ho-lo, an old and prominent Creek chief, whom Ross had notified by letter of the action taken, and upon whom he urged the wisdom of securing similar action by the Creeks,[578] refused to lend himself to any such measure. He called a council of the Creeks, however, representing to them the action of the Cherokees, alleging that their chiefs had been bought, and reminded the Creeks of the duties and obligations by which they were bound to the Government of the United States.

The majority of the Creeks, notwithstanding, were for active co-operation with the Confederacy, and an internecine war was at once inaugurated. The loyal portion of the Seminoles, Wichitas, Kickapoos, and Delawares joined O-poth-le-yo-ho-lo and his loyal Creeks, who after two or three engagements with the disloyal Indians, backed by a force of Texas troops, was compelled to retreat to the north, which he did in December, 1861.[579] The weather was extremely inclement; the loyal Indians were burdened with all their household goods, their women and children, and at the same time exposed to the assaults of their enemies. Their baggage was captured, leaving many of them without shoes or comfortable clothing. Hundreds perished on the route, and at last, after a journey of 300 miles, they reached Humboldt, Kansas, racked with disease, almost frozen, and with starvation staring them in the face. Immediately upon learning of the condition of these sufferers, Indian Superintendent Coffin promptly inaugurated measures for their relief. Having inconsiderable funds at his command for the purpose, application was made to General Hunter, commanding the Department of Kansas, who promptly responded with all the supplies at his disposal. The Indians in their retreat had become scattered over an area of territory 200 miles in extent, between the Verdigris and Fall River, Walnut Creek and the Arkansas. As they became aware of the efforts of the Government for their relief, they began to pour into the camp of rendezvous on the Verdigris, but were later removed to Le Roy, Kansas. Authority was given to enlist the able bodied males in the service of the United States, and two regiments were at once organized and placed under command of Colonel Weir for an expedition against the Indian Territory, mention of which has been previously made. A census taken of these refugees by Superintendent Coffin, in August, 1862, showed that there were in camp, exclusive of the 2,000 who had enlisted in the service of the United States, 3,619 Creeks, 919 Seminoles, 165 Chickasaws, 223 Cherokees, 400 Kickapoos, 89 Delawares, 19 Ionies, and 53 Keechies, in all 5,487, consisting of 864 men, 2,040 women, and 2,583 children. In addition to these at least 15 per cent. had died since their arrival from hardships encountered in the course of their retreat. They were subsequently removed to the Sac and Fox reservation in Kansas.

Until after Colonel Weir's expedition to the Indian Territory not exceeding three hundred Cherokees had taken refuge within the Union lines; but in the autumn of 1862, after Weir's retreat, a body of refugees, mostly women and children, claiming the protection of the United States, made their way to a point on the Cherokee neutral lands some 12 miles south of Fort Scott, Kansas.

Like all the other refugees, they were in a most destitute and suffering condition. In need of food, clothing, and supplies of all kinds, these sufferers, to the number of two thousand, appealed for relief, and were for a time supplied by the Superintendent of Indian Affairs, but afterwards, on being taken under charge of the military authorities, were transferred to Neosho, Missouri.

_Relations with the Southern Confederacy renounced._--During the month of February, 1863 (as reported[580] by John Ross from Philadelphia), a special meeting of the Cherokee national council was convened at Cowskin Prairie, and the following legislation was enacted:

1. Abrogating the treaty with the Confederate States, and calling a general convention of the people to approve the act.

2. The appointment of a delegation with suitable powers and instructions to represent the Cherokee Nation before the United States Government, consisting of John Ross, principal chief, Lieutenant-Colonel Downing, Capt. James McDaniel, and Rev. Evan Jones.

3. Authorizing a general Indian council to be held at such time and place as the principal chief may designate.

4. Deposing all officers of the nation disloyal to the Government.

5. Approving the purchase of supplies made by the treasurer and directing their distribution.

6. Providing for the abolition of slavery in the Cherokee Nation.

RAVAGES OF WAR IN THE CHEROKEE NATION.

In the latter part of the winter of 1862 and early spring of 1863 the military authorities conceived the propriety of returning the refugee Cherokees to their homes in time to enable them to plant their spring crops. Two military expeditions were organized, one to move from Springfield, Mo., under the command of General Blunt, and the other from Scott's Mills, in charge of Colonel Phillips.[581] The Indians were furnished with the necessary agricultural implements, seeds, etc., and were promised complete protection from the incursions of their enemies. The refugees, in charge of Indian Agent Harlan, set out for their homes a week after the army had marched, reaching Tahlequah in safety, and immediately scattering themselves throughout the country engaged busily in planting their crops. Their labors had only fairly commenced when they were alarmed by the reported approach of Stand Watie and his regiment of Confederate Cherokees. The Indians immediately suspended their labors, and, together with the troops under Colonel Phillips, were compelled to take refuge in Fort Gibson. Their numbers were, as reported by the superintendent, now increased to upwards of six thousand, by the addition of many who, up to this time, had remained at their homes. The troops of Stand Watie, alleged to number some seven hundred, scoured the country at their pleasure, and not only everything of value that had previously escaped confiscation in the nation, but everything that had been brought back with them by the refugees to aid in their proposed labors, was either carried off or destroyed. The failure of these expeditions in accomplishing the objects for which they were organized rendered it necessary that the refugees should be fed and maintained at Fort Gibson, some 200 miles distant from the base of supplies. This situation of affairs remained practically unchanged until the close of the war, except that the number of destitute Indians requiring subsistence from the Government increased to sixteen or seventeen thousand. The United States forces continued to occupy Forts Smith and Gibson, and the Indians were thus enabled to cultivate, to a limited extent, the lands within the immediate protection of those posts, but their country was infested and overrun by guerrillas, who preyed upon and destroyed everything of a destructible character. There was no portion of country within the limits of the United States, perhaps, that was better suited to the demands of stock-raising, and the Cherokees had, prior to the war, entered largely into this pursuit. Many of them were wealthy and numbered their herds by hundreds and even thousands of head. Almost the entire nation was surrounded by all the comforts and many of the luxuries of a civilized people. When they were overwhelmed by the disasters of war, and saw the labors and accumulations of more than twenty years' residence in that pleasant and fruitful country swept away in a few weeks, the sullen bitterness of despair settled down upon them. Their losses in stock alone aggregated, according to the best estimates, more than 300,000 head. Is it any wonder that the springs of hope should dry up within their breasts?

[Footnote 475: United States Statute at Large, Vol. IX, p. 871.]

[Footnote 476: May 6, 1844.]

[Footnote 477: May 30, 1844.]

[Footnote 478: Letter of Secretary of War to Commissioners Jones and Butler, October 18, 1844.]

[Footnote 479: October 18, 1844.]

[Footnote 480: Letter of General Jones to Commissioner of Indian Affairs, November 17, 1844.]

[Footnote 481: He was one of the chiefs of the Arkansas delegation who signed the treaty of May 6, 1828. (See United States Statutes at Large, Vol. VII, p. 314.)]

[Footnote 482: Letters of September 12 and November 23, 1844, from Agent Butler to Commissioner of Indian Affairs.]

[Footnote 483: Letter of Commissioner Indian Affairs to Agent Butler, January 17, 1845.]

[Footnote 484: Letter of Oo-no-leh to Agent Butler, May 15, 1845. Guess left a widow, a son, and two daughters. Hon. T. L. McKenny, in a letter to the Secretary of War, December 13, 1825, says: "His name is Guess, and he is a native and unlettered Cherokee. Like Cadmus, he has given to the people the alphabet of their language. It is composed of eighty-six characters, by which in a few days the older Indians who had despaired of deriving an education by means of the schools * * * may read and correspond." Agent Butler, in his annual report for 1845, says: "The Cherokees who cannot speak English acquire their own alphabet in twenty-four hours."]

[Footnote 485: September 1, 1845.]

[Footnote 486: October 22, 1845.]

[Footnote 487: November 12, 1845. They explored up the valley of Stone Fort Creek a distance of 30 miles.]

[Footnote 488: Report of the exploring party to their council.]

[Footnote 489: January 19, 1846.]

[Footnote 490: Letter to the President, February 10, 1846.]

[Footnote 491: Letter to the Secretary of War, February 12, 1846.]

[Footnote 492: April 2, 1846.]

[Footnote 493: Letter of Agent McKissick to Commissioner Indian Affairs, May 12, 1846, and General Arbuckle to Adjutant-General, April 28, 1846.]

[Footnote 494: Report of Agent McKissick July 4, 1846.]

[Footnote 495: Commissioner Indian Affairs to Maj. William Armstrong, June 24, 1846.]

[Footnote 496: July 6, 1846.]

[Footnote 497: United States Statutes at Large, Vol. IX, p. 871.]

[Footnote 498: The subject of the North Carolina Cherokee interests was also referred to this commission July 13, 1846.]

[Footnote 499: Report of Commissioner Indian Affairs to Secretary Interior, January 20, 1855.]

[Footnote 500: Second Comptroller of the Treasury to Commissioner of Indian Affairs, February 6, 1849.]

[Footnote 501: United States Statutes at Large, Vol. VII, p. 478.]

[Footnote 502: United States Statutes at Large, Vol. V, p. 241.]

[Footnote 503: United States Statutes at Large, Vol. IX, p. 339.]

[Footnote 504: December 3, 1849.]

[Footnote 505: United States Statutes at Large, Vol. IX, p. 572.]

[Footnote 506: September 5, 1850.]

[Footnote 507: United States Statutes at Large, Vol. IX, p. 556.]

[Footnote 508: Ibid., p. 871.]

[Footnote 509: United States Statutes at Large, Vol. VII, p. 156.]

[Footnote 510: Ibid., p. 195.]

[Footnote 511: Ibid., p. 311.]

[Footnote 512: Ibid., p. 478.]

[Footnote 513: Ibid., p. 414.]

[Footnote 514: United States Statutes at Large, Vol. IX, p. 556.]

[Footnote 515: September 22, 1851.]

[Footnote 516: November 22, 1875.]

[Footnote 517: April 28, 1877, November 20, 1880, November 17, 1881, and October 13, 1882.]

[Footnote 518: United States Statutes at Large, Vol. XXII, p. 328.]

[Footnote 519: January 31, 1883.]

[Footnote 520: See Senate Executive Document No. 14, Forty-Eighth Congress, 1st session.]

[Footnote 521: March 16, 1835.]

[Footnote 522: Letter of John Mason, Jr. to Secretary of War, September 25, 1837.]

[Footnote 523: United States Statutes at Large, Vol. V, p. 241.]

[Footnote 524: See report of Second Auditor and Second Comptroller to Congress, December 3, 1849.]

[Footnote 525: See report of Second Auditor and Second Comptroller to Congress, December 3, 1849.]

[Footnote 526: November 17, 1851.]

[Footnote 527: November 29, 1851.]

[Footnote 528: After reciting in detail the "forced" circumstances through which those treaties were brought about, they declared--

1. That no adequate allowance had been made for the sums taken from the treaty fund of 1835 for removal; that though an appropriation had been made, the estimates upon which it was based were too small, and the balance was taken out of the Indian fund.

2. That if allowable in any sense, the Government had no right to take from the Cherokee fund an expense for removal greater than the limit fixed by the eighth article of the treaty of 1835.

3. That the alternative of receiving for subsistence $33.33, as provided for in the treaty of 1835, was refused to be complied with and their people forced to receive rations in kind at double the cost.

4. That the cost of the rations issued by the commandant at Fort Gibson to "indigent Cherokees" was improperly charged to the treaty fund, without legal authority.

5. That the United States was bound to reimburse the amount paid to some two or three hundred Cherokees who emigrated prior to 1835, but who were refused a participation in the "Old Settler" fund.

6. That the Cherokees who remained in the States of Georgia, North Carolina, and Tennessee were not entitled to any share in the per capita fund, inasmuch as they complied with neither of two conditions of their remaining East; and also because the census of those Cherokees was believed to be enormously exaggerated.

7. That the sum of $103,000 had been charged upon the treaty fund for expenses of Cherokees in Georgia during three months they were all assembled and had reported themselves to General Scott as ready to take up their emigration march.

8. That interest should be paid on the balance found due them from April 15, 1851, until paid, Congress having no power to abrogate the stipulations of a treaty.

9. That $20,000 of the funds of the emigrant Cherokees were taken to pay the counsel and agents of the Old Settler party without authority.]

[Footnote 529: United States Statutes at Large, Vol. IX, p. 264.]

[Footnote 530: Commissioner of Indian Affairs to Secretary of Interior, February 10, 1874.]

[Footnote 531: November 20, 1851.]

[Footnote 532: United States Statutes at Large, Vol. X, p. 700.]

[Footnote 533: The fourth section of this same act made provision that the eighth section of the act of July 31, 1854 (United States Statutes at Large, Vol. X, pp. 315), authorizing the payment of per capita allowance to Cherokees east of the Mississippi, be so amended as to authorize the payment of all such Cherokees as, being properly entitled, were omitted from the roll of D. W. Siler from any cause whatever.]

[Footnote 534: United States Statutes at Large, Vol. XVIII, p. 447.]

[Footnote 535: United States Statutes at Large, Vol. XV, p. 228.]

[Footnote 536: United States Statutes at Large, Vol. XVI, p. 362.]

[Footnote 537: This balance, amounting in the aggregate (with interest) to $7,242.76, was paid April 3, 1875.]

[Footnote 538: United States Statutes at Large Vol. XVIII, p. 447.]

[Footnote 539: A short time prior (September 11, 1874) to the filing of the award of the arbitrators in the case of the Indians _vs._ Thomas, an agreement was made between the parties in interest to refer certain matters of dispute between Thomas and Johnston to the consideration and determination of the same arbitrators. As the result of this reference an award was made which showed that there was due from Thomas to Johnston upon three several judgments the sum of $33,887.11. Upon this sum, however, credits to the amount of $15,552.11 (including the $6,500 with interest paid to Johnston by the Cherokees under contract of September, 1869) were allowed, leaving the net amount due to Johnston $18,335, which sum he was entitled to collect with interest until paid, together with the costs taxed in the three judgments aforesaid. The arbitrators further found that Johnson held sheriff's deeds for considerable tracts of land which had been sold as the property of Thomas and which were not included among the lands held by him in trust for the Indians. These tracts Johnston had bought in by reason of clouds upon the title and "forbiddals" of the sales at a merely nominal figure. It was therefore declared that these sheriffs' deeds should be held by Johnston only as security for the payment of the balance due him on the judgments in question and for the costs taxed on each. It was further directed that Terrell and Johnston should make sale of so much of the lands embraced in the sheriff's deeds alluded to (excluding those awarded to the Cherokee Indians either as a tribe or as individuals) as would produce a sum sufficient to satisfy the above balance of $18,335 with interest and costs.

Following this award of the arbitrators Mr. Johnston submitted a proposition for the transfer and assignment of these judgments to the Eastern Band of Cherokees. Based upon this offer, the Commissioner of Indian Affairs reported to the Secretary of the Interior June 2, 1875, that the interests of the Indians required the acceptance of Johnston's proposition. This recommendation was confirmed by William Stickney, of the President's board of Indian commissioners, in a report to that body. Mr. J. W. Terrell, on behalf of the Eastern Cherokees, as well as their agent, W. C. McCarthy, joined in urging the acceptance of the proposal.

Supported by these opinions and recommendations, the Secretary of the Interior, on the 3d of June, 1875, authorized the purchase of the Johnston judgments, and two days later a requisition was issued for the money, and instructions were given to Agent McCarthy to make the purchase.

Under these instructions as subsequently modified (June 9, 1875), Agent McCarthy reported (July 27, 1875) the purchase of the judgments, amounting in the aggregate, including interest and costs, to $19,245.53, and an assignment of them was taken in the name of the Commissioner of Indian Affairs in trust for the Eastern Band of Cherokee Indians of North Carolina.

From investigations and reports afterward made by Inspectors Watkins and Vandever, it appears that there was much uncertainty and confusion as to the actual status of these lands. The latter gentleman reported (April 10, 1876) that the second award made by the arbitrators was a private affair between Thomas and Johnston and was entirely separate and distinct from the first award in the case of the Indians. He also reported that, despite the purchase of the Johnston judgments by the Indian Department in trust for the Indians, the two commissioners named in the second award proceeded to sell the lands upon which these judgments were a lien, and at the November, 1875, term of the court made a report of their proceedings, which was affirmed by the court.

Taking into consideration all these complications, it was recommended by Inspector Vandever that an agent or commission be appointed, if the same could be done by consent of all parties, who should assume the duty of appraising the lands affected by the Johnston judgments, and that such quantity of the lands be selected for the Cherokees as would at such appraisal equal in value the amount of the judgments, interest, and costs, after which the remainder of the lands, if any, should be released to Mr. Thomas. The representatives of Thomas and Johnston also submitted a proposition for adjustment to the Indians, who by resolution of their council (March, 1876) agreed to accept it. In the light of this action and of the recommendation of Inspector Vandever, Congress passed an act (August 14, 1876) authorizing the Commissioner of Indian Affairs to receive in payment of the amount due to the Indians on the Johnston judgments owned by them a sufficient quantity of the Thomas lands to satisfy, at the appraised value, the amount of such judgments, and to deed the lands thus accepted to the Eastern Band of Cherokees in fee simple.

The commissioner of appraisal appointed and acting under this act of Congress, and under the supervision of Inspector Watkins, selected 15,211.2 acres, the appraised value of which was $20,561.35, being the exact amount, including interest and costs, due upon the judgments up to October 7, 1876, the date of appraisal.

Thereupon a deed (known as the Watkins deed) was executed by the parties representing the Johnston and Thomas interests, conveying the lands so selected to the Commissioner of Indian Affairs in the manner directed by the act of Congress, which deed it was agreed should be supplemented by a new one so soon as a more definite description could be given of the lands after survey. The surveys were made by M. S. Temple, who also surveyed the Qualla boundary tract, a deed for which latter tract (known as the Brooks deed) was executed direct to the Eastern Band of North Carolina Cherokee Indians, and the supplemental deed spoken of above was also executed. Sundry difficulties and complications have continued from time to time to arise in connection with the affairs of these Indians, and as the most effective measure of protection to their interests the Commissioner of Indian Affairs has suggested (April 26, 1882) to Congress the advisability of placing the persons and property of these people under the jurisdiction of the United States district court for the western district of North Carolina.]

[Footnote 540: February 17 and March 17, 1853.]

[Footnote 541: March 26, 1853.]

[Footnote 542: This protest bore date of November 9, 1853, and was filed by Edwin Follin, as their attorney or representative.]

[Footnote 543: September 21, 1853.]

[Footnote 544: November 22, 1853.]

[Footnote 545: Letter of Agent Butler, dated November 30, 1853.]

[Footnote 546: Annual report of Agent Butler for 1854.]

[Footnote 547: The delegation submitted these propositions in a communication to the Commissioner of Indian Affairs, dated December 28, 1854.]

[Footnote 548: Annual report of Agent Butler for 1855.]

[Footnote 549: Annual report of Agent Butler for 1857.]

[Footnote 550: Annual report of Agent Butler for 1858.]

[Footnote 551: October 10, 1860.]

[Footnote 552: See reports of Agent Cowart in November, 1860, in Indian Office report of 1860, pp. 224, 225.]

[Footnote 553: January 1, 1860.]

[Footnote 554: Letter of Agent R. J. Cowart to Commissioner Indian Affairs, September 8, 1860.]

[Footnote 555: Letter of S. W. Butler, published in Philadelphia North American, January 24, 1863.]

[Footnote 556: Letter of General Albert Pike to Commissioner of Indian Affairs, February 17, 1866, published in pamphlet report of Commissioner of Indian Affairs to the President, bearing date June 15, 1866.]

[Footnote 557: Letter of S. W. Butler, in Philadelphia North American, January 24, 1863, and letter of General Albert Pike to Commissioner of Indian Affairs, February 17, 1866.]

[Footnote 558: Letter of Albert Pike, February 17, 1866. The delegates representing the "Southern Cherokees," in their statement to the United States commissioners at the Fort Smith conference, September 16, 1865, say: "Years before the war one portion of the Cherokees was arrayed in deadly hostility against the other; a secret organized society called the 'Pins,' led by John Ross and Rev. Jones, had sworn destruction to the half-bloods and white men of the nation outside this organization," etc.]

[Footnote 559: Early in June, 1861.]

[Footnote 560: Letter of General Albert Pike to Commissioner of Indian Affairs, February 17, 1866.]

[Footnote 561: Ibid.]

[Footnote 562: June 12, 1861.]

[Footnote 563: June 17, 1861.]

[Footnote 564: According to the message of John Ross, as principal chief to the Cherokee national council, October 9, 1861, this convention was held on the 21st of August, 1861.]

[Footnote 565: Pike's letter to Commissioner of Indian Affairs, February 17, 1866.]

[Footnote 566: Pike's letter to Commissioner of Indian Affairs, February 17, 1866. These treaties were concluded on the following dates respectively: Creek, July 10; Choctaw and Chickasaw, July 12; Seminole, August 1; Shawnees, Delawares, Wichitas, and affiliated tribes resident in leased territory, and Comanches, August 12, 1861.]

[Footnote 567: The treaty with the Osages was concluded October 2, that with the Senecas and Shawnees on the same day, and also that with the Quapaws. (See Report Commissioner of Indian Affairs for 1865, p. 318.)]

[Footnote 568: The text of this treaty was reprinted for the use of the United States treaty commissioners in 1866.]

[Footnote 569: August, 1861. See letter of Commissioner of Indian Affairs to the President, June 15, 1866.]

[Footnote 570: General Albert Pike in his letter of February 17, 1866, speaks of being escorted from Fort Gibson to Park Hill on his way to conclude the treaty of October 7, 1861, by eight or nine companies of Colonel Drew's regiment, which had been previously raised as a home guard by order of the national council.]

[Footnote 571: This address (printed as document No. 7, accompanying the letter of Commissioner of Indian Affairs to the President, June 15, 1866) bears date of December 19, 1862. This is an evident typographical error for 1861, because the address was in the nature of a censure upon the regiment for its defection on the eve of a battle with the forces of O-poth-le-yo-ho-lo, the loyal Creek leader. This battle occurred at Bushy or Bird Creek, December 9, 1861, and before the expiration of another year Ross had left the Cherokee country under the escort of Colonel Weir.]

[Footnote 572: Greeley's American Conflict, Vol. II, p. 32; also, Report of Commissioner of Indian Affairs, June 15, 1866, and numerous other official documents.]

[Footnote 573: Report of Commissioner of Indian Affairs to the President, June 15, 1866, p. 10.]

[Footnote 574: Letter of General Albert Pike, February 17, 1866; also letter of T. J. Mackey, June 4, 1866.]

[Footnote 575: Letter of General Albert Pike, February 17, 1866.]

[Footnote 576: Commissioner of Indian Affairs to the President, June 15, 1866.]

[Footnote 577: Ibid.]

[Footnote 578: Letter of John Ross to O-poth-le-yo-ho-lo, September 19, 1861.]

[Footnote 579: Report of Agent Cutler and Superintendent Coffin for 1862. See pages 135 and 138 of the Report of the Commissioner of Indian Affairs for 1862.]

[Footnote 580: April 2, 1863.]

[Footnote 581: Report of Commissioner of Indian Affairs for 1863, p. 24.]

TREATY CONCLUDED JULY 19, 1866; PROCLAIMED AUGUST 11, 1866.

_Held at Washington, D. C., between Dennis N. Cooley,
Commissioner of Indian Affairs, and Elijah Sells, superintendent of
Indian Affairs for the southern superintendency, on behalf of the
United States, and the Cherokee Nation of Indians, represented by
its delegates, James McDaniel, Smith Christie, White Catcher, S. H.
Benge, J. B. Jones, and Daniel H. Ross, John Ross, principal chief,
being too unwell to join in these negotiations._[582]

MATERIAL PROVISIONS.

Whereas existing treaties between the United States and the Cherokee Nation are deemed to be insufficient, the contracting parties agree as follows, viz:

1. The pretended treaty of October 7, 1861, with the so-called Confederate States, repudiated by the Cherokee National Council February 18, 1863, is declared to be void.

2. Amnesty is declared for all offenses committed by one Cherokee against the person or property of another or against a citizen of the United States prior to July 4, 1866. No right of action arising out of acts committed for or against the rebellion shall be maintained in either the United States or the Cherokee courts, and the Cherokee Nation agree to deliver to the United States all public property in their control which belonged to the United States or the so-called Confederate States.

3. The confiscation laws of the Cherokee Nation shall be repealed, and all sales of farms and improvements are declared void. The former owners shall have the right to repossess themselves of the property so sold. The purchaser under the confiscation laws shall receive from the treasurer of the nation the money paid and the value of the permanent improvements made by him. The value of these improvements shall be fixed by a commission, composed of one person appointed by the United States and one appointed by the Cherokee Nation, who in case of disagreement may appoint a third. The value of these improvements so fixed shall be returned to the Cherokee treasurer by returning Cherokees within three years.

4. All Cherokees and freed persons who were formerly slaves to any Cherokee, and all free negroes, not having been such slaves, who resided in the Cherokee Nation prior to June 1, 1861, who may within two years elect not to reside northeast of the Arkansas River and southeast of Grand River, shall have the right to settle in and occupy the Canadian district southwest of the Arkansas River; and also the country northwest of Grand River, and bounded southeast by Grand River and west by the Creek country, to the northeast corner thereof; from thence west on north line of Creek country to 96° west longitude; thence north with said 96° so far that a line due east to Grand River will include a quantity of land equal to 160 acres for each person who may so elect to reside therein, provided that the part of said district north of Arkansas River shall not be set apart until the Canadian district shall be found insufficient to allow 160 acres to each person desiring to settle under the terms of this article.

5. The inhabitants electing to reside in the district described in the preceding article shall have the right to elect all their local officers and judges, also their proportionate share of delegates in any general council that may be established under the twelfth article of this treaty; to control all their local affairs in a manner not inconsistent with the constitution of the Cherokee Nation or the laws of the United States, provided the Cherokees residing in said district shall enjoy all the rights and privileges of other Cherokees who may elect to settle in said district as herein before provided, and shall hold the same rights and privileges and be subject to the same liabilities as those who elect to settle in said district under the provisions of this treaty; provided, also, that if any rules be adopted which, in the opinion of the President, bear oppressively on any citizen of the nation he may suspend the same. And all rules or regulations discriminating against the citizens of other districts are prohibited and shall be void.

6. The inhabitants of the aforesaid district shall be entitled to representation in the national council in proportion to their numbers. All laws shall be uniform throughout the nation. The President of the United States is empowered to correct any evil arising from the unjust or unequal operation of any Cherokee law and to secure an equitable expenditure of the national funds.

7. A United States court shall be created in the Indian Territory; until created, the United States district court nearest the Cherokee Nation shall have exclusive original jurisdiction of all causes, civil and criminal, between the inhabitants of the aforesaid district and other citizens of the Cherokee Nation. All process issued in said district against a Cherokee outside of said district shall be void unless indorsed by the judge of the district in which the process is to be served. A like rule shall govern the service of process issued by Cherokee officers against persons residing in the aforesaid district. Persons so arrested shall be held in custody until delivered to the United States marshal or until they shall consent to be tried by the Cherokee court. All provisions of this treaty creating distinctions between citizens of any district and the remainder of the Cherokee Nation shall be abrogated by the President whenever a majority of the voters of such district shall so declare at an election duly ordered by him. No future law or regulation enacted in the Cherokee Nation shall take effect until ninety days after promulgation in the newspapers or by written posted notices in both the English and Cherokee languages.

8. No license to trade in the Cherokee Nation shall be granted by the United States unless approved by the Cherokee national council, except in the districts mentioned in article 4.

9. The Cherokee Nation covenant and agree that slavery shall never hereafter exist in the nation. All freedmen, as well as all free colored persons resident in the nation at the outbreak of the rebellion and now resident therein or who shall return within six months and their descendants, shall have all the rights of native Cherokees. Owners of emancipated slaves shall never receive any compensation therefor.

10. All Cherokees shall have the right to sell their farm produce, live stock, merchandise, or manufactures, and to ship and drive the same to market without restraint, subject to any tax now or hereafter levied by the United States on the quantity sold outside of the Indian Territory.

11. The Cherokee Nation grant a right of way 200 feet in width through their country to any company authorized by Congress to construct a railroad from north to south and from east to west through the Cherokee Nation. The officers, employés, and laborers of such company shall be protected in the discharge of their duties while building or operating said road through the nation and at all times shall be subject to the Indian intercourse laws.

12. The Cherokees agree to the organization of a general council, to be composed of delegates elected to represent all the tribes in the Indian Territory, and to be organized as follows:

I. A census shall be taken of each tribe in the Indian Territory.

II. The first general council shall consist of one member for each tribe, and an additional member for each one thousand population or fraction thereof over five hundred. Any tribe failing to elect such members of council shall be represented by its chief or chiefs and headmen in the above proportion. The council shall meet at such time and place as the Superintendent of Indian Affairs shall approve. No session shall exceed thirty days in any one year. The sessions shall be annual; special sessions may be called by the Secretary of the Interior in his discretion.

III. The council shall have power to legislate upon matters pertaining to intercourse and relations of the tribes and freedmen resident in Indian Territory; the arrest and extradition of criminals and offenders escaping from one tribe or community to another; the administration of justice between members of different tribes and persons other than Indians and members of said tribes or nations; and the common defense and safety. All laws enacted by the council shall take effect as therein provided, unless suspended by the President of the United States. No law shall be enacted inconsistent with the Constitution or laws of the United States or with existing treaty stipulations. The council shall not legislate upon matters other than above indicated, unless jurisdiction shall be enlarged by consent of the national council of each nation or tribe, with the assent of the President of the United States.

IV. Said council shall be presided over by such person as may be designated by the Secretary of the Interior.

V. The council shall elect a secretary, who shall receive from the United States an annual salary of $500. He shall transmit a certified copy of the council proceedings to the Secretary of the Interior and to each tribe or nation in the council.

VI. Members of the council shall be paid by the United States $4 a day during actual attendance on its meetings and $4 for every 20 miles of necessary travel in going to and returning therefrom.

13. The United States may establish a court or courts in the Indian Territory, with such organization and jurisdiction as may be established by law, provided that the judicial tribunals of the Cherokee Nation shall retain exclusive jurisdiction in all civil and criminal cases arising within their country in which members of the nation shall be the only parties, or where the cause of action shall arise in the Cherokee Nation, except as otherwise provided in this treaty.

14. Every society or denomination erecting or desiring to erect buildings for missionary or educational purposes shall be entitled to select and occupy for those purposes 160 acres of vacant land in one body.

15. The United States may settle any civilized Indians, friendly with the Cherokees, within the latter's country on unoccupied lands east of 96°, on terms agreed upon between such Indians and the Cherokees, subject to the approval of the President of the United States. If any tribe so settling shall abandon its tribal organization and pay into the Cherokee national fund a sum bearing the same proportion to such fund as said tribe shall in numbers bear to the population of the Cherokee Nation such tribe shall be incorporated into and ever after remain a part of that nation on equal terms with native citizens thereof.

If any tribe so settling shall decide to preserve its tribal organization, laws, customs, and usages not inconsistent with the constitution and laws of the Cherokee Nation, it shall have set apart in compact form for use and occupancy a tract equal to 160 acres for each member of the tribe. Such tribe shall pay for this land a price agreed upon with the Cherokees, subject to the approval of the President of the United States, and in case of disagreement the price to be fixed by the President.

Such tribe shall also pay into the national fund a sum to be agreed upon by the respective parties, not greater in proportion to the whole existing national fund and the probable proceeds of the lands herein ceded or authorized to be ceded or sold than their numbers bear to the whole number of Cherokees, and thereafter they shall enjoy all the rights of native Cherokees.

No Indians without tribal organization, or who having one shall have determined to abandon the same, shall be permitted to settle in the Cherokee country east of 96° without the permission of the proper Cherokee authorities. And no Indians determining to preserve their tribal organization shall so settle without such consent, unless the President, after a full hearing of the Cherokee objections thereto, shall deem them insufficient and authorize such settlement.

16. The United States may settle friendly Indians on any Cherokee lands west of 96°; such lands to be selected in compact form and to equal in quantity 160 acres for each member of the tribe so settled. Such tribe shall pay therefor a price to be agreed upon with the Cherokees, or, in the event of failure to agree, the price to be fixed by the President. The tract purchased shall be conveyed in fee simple to the tribe so purchasing, to be held in common or allotted in severalty as the United States may decide.

The right of possession and jurisdiction over the Cherokee country west of 96° to abide with the Cherokees until thus sold and occupied.

17. The Cherokee Nation cedes to the United States, in trust to be surveyed, appraised, and sold for the benefit of that nation, the tract of 800,000 acres sold to them by the United States by article 2, treaty of 1835, and the strip of land ceded to the nation by article 4, treaty of 1835, lying within the State of Kansas, and consents that said lands may be included in the limits and jurisdiction of said State. The appraisement shall not average less than $1.25 per acre, exclusive of improvements.

The Secretary of the Interior shall, after due advertisement for sealed bids, sell such lands to the highest bidders for cash in tracts of not exceeding 160 acres each at not less than the appraised value. Settlers having improvements to the value of $50 or more on any of the lands not mineral and occupied for agricultural purposes at the date of the signing of this treaty, shall, after due proof under rules to be prescribed by the Secretary of the Interior, be allowed to purchase at the appraised value the smallest quantity of land to include their improvements, not exceeding 160 acres each.

The expenses of survey and appraisement shall be paid out of the proceeds of the sale of the lands, and nothing herein shall prevent the Secretary of the Interior from selling to any responsible party for cash all of the unoccupied portion of these lands in a body, for not less than $800,000.

18. Any lands owned by the Cherokees in Arkansas or in States east of the Mississippi River may be sold by their national council, upon the approval of the Secretary of the Interior.

19. All Cherokees residing on the ceded lands desiring to remove to the Cherokee country proper shall be paid by the purchasers the appraised value of their improvements. Such Cherokees desiring to remain on the lands so occupied by them shall be entitled to a patent in fee simple for 320 acres each, to include their improvements, and shall thereupon cease to be members of the nation.

20. Whenever the Cherokee national council shall so request, the Secretary of the Interior shall cause the country reserved for the Cherokees to be surveyed and allotted among them at the expense of the United States.

21. The United States shall at its own expense cause to be run and marked the boundary line between the Cherokee Nation and the States of Arkansas, Missouri, and Kansas as far west as the Arkansas River, by two commissioners, one of whom shall be designated by the Cherokee national council.

22. The Cherokee national council shall have the privilege of appointing an agent to examine the accounts of the nation with the United States, who shall have free access to all the accounts and books in the Executive Departments relating to the business of the Cherokees.

23. All funds due the nation or accruing from the sale of their lands shall be invested in United States registered stocks and the interest paid semi-annually on the order of the Cherokee Nation, and applied to the following purposes: 35 per cent. for the support of the common schools of the nation and educational purposes; 15 per cent. for the orphan fund, and 50 per cent. for general purposes, including salaries of district officers. The Secretary of the Interior, with the approval of the President, may pay out of the funds due the nation, on the order of the national council, an amount necessary to meet outstanding obligations of the Cherokee Nation, not exceeding $150,000.

24. Three thousand dollars shall be paid out of the Cherokee funds to the Rev. Evan Jones, now in poverty and crippled, as a reward for forty years' faithful missionary labors in the nation.

25. All bounty and pay of deceased Cherokee soldiers remaining unclaimed at the expiration of two years shall be paid as the national council may direct, to be applied to the foundation and support of an orphan asylum.

26. The United States guarantee to the Cherokees the quiet and peaceable possession of their country and protection against domestic feuds and insurrection as well as hostilities of other tribes. They shall also be protected from intrusion by all unauthorized citizens of the United States attempting to settle on their lands or reside in their territory. Damages resulting from hostilities among the Indian tribes shall be charged to the tribe beginning the same.

27. The United States shall have the right to establish one or more military posts in the Cherokee Nation. No sutler or other person, except the medical department proper, shall have the right to introduce spirituous, vinous, or malt liquors into the country, and then only for strictly medical purposes. All unauthorized persons are prohibited from coming into or remaining in the Cherokee Nation, and it is the duty of the United States agent to have such persons removed as required by the Indian intercourse laws of the United States.

28. The United States agree to pay for provisions and clothing furnished the army of Appotholehala in the winter of 1861 and 1862 a sum not exceeding $10,000.

29. The United States agree to pay out of the proceeds of sale of Cherokee lands $10,000, or so much thereof as may be necessary, to defray the expenses of the Cherokee delegates and representatives invited to Washington by the United States to conclude this treaty, and also to pay the reasonable costs and expenses of the delegates of the Southern Cherokees.

30. The United States agree to pay not exceeding $20,000 to cover losses sustained by missionaries or missionary societies, in being driven from the Cherokee country by United States agents and on account of property taken and destroyed by United States troops.

31. All provisions of former treaties not inconsistent with this treaty shall continue in force; and nothing herein shall be construed as an acknowledgment by the United States or as a relinquishment by the Cherokee Nation of any claims or demands under the guarantees of former treaties, except as herein expressly provided.

[Footnote 582: United States Statutes at Large, Vol. XIV, p. 799.]

TREATY CONCLUDED APRIL 27, 1868; PROCLAIMED JUNE 10, 1868.[583]

_Held at Washington, D. C., between Nathaniel G. Taylor,
commissioner on the part of the United States, and the duly
authorized delegates of the Cherokee Nation._

MATERIAL PROVISIONS.

This treaty is concluded as a supplemental article to the treaty of July 19, 1866.

After reciting that a contract was entered into August 30, 1866, for the sale of the Cherokee neutral land, between James Harlan, Secretary of the Interior, and the American Emigrant Company; that such contract had been annulled as illegal by O. H. Browning, as Secretary of the Interior, who in turn entered into a contract of sale October 9, 1867, with James F. Joy, for the same lands, it is agreed by this treaty, in order to prevent litigation and to harmonize conflicting interests, as follows, viz: An assignment of the contract of August 30, 1866, with the American Emigrant Company shall be made to James F. Joy. Said contract as hereinafter modified is reaffirmed and declared valid. The contract with James F. Joy of October 9, 1867, shall be relinquished and canceled by said Joy or his attorney. The said first contract, as hereinafter modified, and the assignment thereof, together with the relinquishment of the second contract, are hereby ratified and confirmed whenever such assignment and relinquishment shall be entered of record in the Department of the Interior, and when said Joy shall have accepted such assignment and entered into contract to perform all the obligations of the American Emigrant Company under said first contract as hereinafter modified.

The modifications of said contract are declared to be:

1. Within ten days from the ratification of this treaty, $75,000 shall be paid to the Secretary of the Interior, as trustee for the Cherokee Nation.

2. The other deferred payments shall be paid when they fall due, with interest only from the ratification hereof.

It is distinctly understood that said Joy shall take only the residue of said lands after securing to "actual settlers" the lands to which they are entitled under the amended seventeenth article of the treaty of July 19, 1866. The proceeds of the sales of such lands so occupied by settlers shall inure to the benefit of the Cherokee Nation.

HISTORICAL DATA.

UNITED STATES DESIRE TO REMOVE INDIANS FROM KANSAS TO INDIAN TERRITORY.