Chapter VI: Front Matter (6)

The delegation was received and interviews were accorded them by the President and Secretary of War, but they secured nothing but general expressions of good will and promises of protection in their rights and property.

[Footnote 224: United States Statutes at Large, Vol. VII, p. 156.]

[Footnote 225: Confidential message of President Jefferson to Congress, January 18, 1803.]

[Footnote 226: The letter of President Jefferson authorizing a delegation of Cherokees to visit the Arkansas and White River country was dated January 9, 1809, and will be found in the American State Papers, Indian Affairs, Vol. II, p. 125, as well as among the records of the Indian Office.]

[Footnote 227: January 9, 1817.]

[Footnote 228: Letter of Secretary of War to General Jackson, May 14, 1817.]

[Footnote 229: In a letter to Return J. Meigs, under date of September 18, 1816, the Secretary of War says that "the difficulties which have arisen between the Cherokees and the Osages, on the north of the Arkansas, and with the Quapaws, on the south, cannot be finally settled until the line of the cession shall be run and the rights of the Quapaws shall be ascertained. Commissioners appointed by the President are now sitting at Saint Louis for the adjustment of those differences; but should the line of the Osage treaty prove that they are settled upon the Osage lands, nothing can be done for the Cherokees. It is known to you and to that nation that the condition upon which the emigration was permitted by the President was that a cession of Cherokee lands should be made equal to the proportion which the emigrants should bear to the whole nation. This condition has never been complied with on the part of the nation, and of course all obligation on the part of the United States to secure the emigrants in their new possessions has ceased. When the subject was mentioned to the Cherokee deputation last winter, so far were they from acknowledging its force, that they declared the emigrants should be compelled to return."]

[Footnote 230: May 14, 1817.]

[Footnote 231: On the 17th of May, 1817, these commissioners were advised that the lands proposed to be given the Cherokees on the west of the Mississippi River, in exchange for those then occupied by them, were the lands on the Arkansas and immediately adjoining the Osage boundary line.]

[Footnote 232: United States Statutes at Large, Vol. VII, p. 156.]

[Footnote 233: These tracts are designated on the accompanying map as Nos. 23 and 24.]

[Footnote 234: These tracts are designated on the accompanying map as Nos. 25 and 26.]

[Footnote 235: August 1, 1817, the Secretary of War advised the governor of North Carolina that a treaty with the Cherokees had been concluded, by which the Indian claim was relinquished to a tract of country including the whole of the land claimed by them in North Carolina.]

[Footnote 236: This memorial bore date of July 2, 1817.]

[Footnote 237: United States Statutes at Large, Vol. VII, p. 156.]

[Footnote 238: Letter of Secretary of War to Treaty Commissioners August 1, 1817.]

[Footnote 239: Letters of Secretary of War to General Jackson and Colonel Meigs, August 9, 1817.]

[Footnote 240: Letter of Governor McMinn to Secretary of War, November 29, 1818, and subsequent correspondence during 1819. Governor McMinn's letter of November 29, 1818, states that 718 families had enrolled for emigration since December 20, 1817, and 146 families had taken reservations, which made in all, including those who had already emigrated, about one-half of the Cherokee Nation as committed to the support of the policy involved in the treaty of 1817.

February 17, 1819, a Cherokee delegation advised the Secretary of War that, while Governor McMinn's enrollment showed the number of Cherokees who had removed or enrolled to go prior to November 15, 1818, to be 5,291, by their calculation the number did not exceed 3,500, and that they estimated the number of Cherokees remaining east of the Mississippi at about 12,544.]

[Footnote 241: The instructions of the Amoha council to the delegation of six bear date of Fortville, Cherokee Nation, September 19, 1817.]

TREATY CONCLUDED FEBRUARY 27, 1819; PROCLAIMED MARCH 10, 1819.[242]

_Held at Washington City, D. C., between John C. Calhoun,
Secretary of War, specially authorized therefor by the President
of the United States, and the chiefs and headmen of the Cherokee
Nation of Indians._

MATERIAL PROVISIONS.

1. The Cherokee Nation cedes to the United States all of their lands lying north and east of the following line, viz: Beginning on the Tennessee River at the point where the Cherokee boundary with Madison County, in the Alabama Territory, joins the same; thence along the main channel of said river to the mouth of the Highwassee; thence along its main channel to the first hill which closes in on said river, about two miles above Highwassee Old Town; thence along the ridge which divides the waters of the Highwassee and Little Tellico to the Tennessee River at Talassee; thence along the main channel to the junction of the Cowee and Nanteyalee; thence along the ridge in the fork of said river to the top of the Blue Ridge; thence along the Blue Ridge to the Unicoy Turnpike Road; thence by straight line to the nearest main source of the Chestatee; thence along its main channel to the Chattahouchee; and thence to the Creek boundary; it being understood that all the islands in the Chestatee, and the parts of the Tennessee and Highwassee (with the exception of Jolly's Island, in the Tennessee, near the mouth of the Highwassee) which constitute a portion of the present boundary, belong to the Cherokee Nation; and it is also understood that the reservations contained in the second article of the treaty of Tellico, signed the twenty-fifth October, eighteen hundred and five, and a tract equal to twelve miles square, to be located by commencing at the point formed by the intersection of the boundary line of Madison County already mentioned and the north bank of the Tennessee River, thence along the said line and up the said river twelve miles, are ceded to the United States, in trust for the Cherokee Nation, as a school fund, to be sold by the United States, and the proceeds vested as is hereafter provided in the fourth article of this treaty; and also that the rights vested in the Unicoy Turnpike Company by the Cherokee Nation * * * are not to be affected by this treaty.

The foregoing cessions are understood and declared to be in full satisfaction of all claims of the United States upon the Cherokees on account of the cession to a part of their nation who have emigrated or who may emigrate to the Arkansas and as a final adjustment of the treaty of July 8, 1817.

2. The United States agree to pay, according to the treaty of July 8, 1817, for all valuable improvements on land within the country ceded by the Cherokees, and to allow a reservation of 640 acres to each head of a family (not enrolled for removal to Arkansas) who elects to become a citizen of the United States.

3. Each person named in a list accompanying the treaty shall have a reserve of 640 acres in fee simple, to include his improvements, upon giving notice within six months to the agent of his intention to reside permanently thereon. Various other reservations in fee simple are made to persons therein named.

4. The reservations and 12-mile tract reserved for a school fund in the first article are to be sold by the United States and the proceeds invested in good stocks, the interest of which shall be expended in educational benefits for the Cherokees east of the Mississippi.

5. The boundary lines of the land ceded by the first article shall be established by commissioners appointed by the United States and the Cherokees. Leases made under the treaty of 1817 of land within the Cherokee country shall be void. All white people intruding upon the lands reserved by the Cherokees shall be removed by the United States, under the act of March 30, 1802.

6. Annuities shall be distributed in the proportion of two-thirds to those east to one-third to those west of the Mississippi. Should the latter object within one year to this proportion, a census shall be taken of both portions of the nation to adjust the matter.

7. The United States shall prevent intrusion on the ceded lands prior to January 1, 1820.

8. The treaty shall be binding upon its ratification.

HISTORICAL DATA.

CHEROKEES WEST OF THE MISSISSIPPI--THEIR WANTS AND CONDITION.

Early in 1818 a representative delegation from that portion of the Cherokees who had removed to the Arkansas visited Washington with the view of reaching a more satisfactory understanding concerning the location and extent of their newly acquired homes in that region. As early as January 14 of that year, they had addressed a memorial to the Secretary of War asking, among other things, that the United States should recognize them as a separate and distinct people, clothed with the power to frame and administer their own laws, after the manner of their brethren east of the Mississippi.

Long and patient hearings were accorded to this delegation by the authorities of the Government, and, predicated upon their requests, instructions were issued[243] to Governor William Clark, superintendent of Indian affairs at Saint Louis, among other things, to secure a cessation of hostilities then raging between the Arkansas Cherokees and the Osages; furthermore, to induce, if possible, the Shawnees and Delawares then residing in the neighborhood of Cape Girardeau to relinquish their land and join the Western Cherokees, or, in the event of a favorable termination of the Quapaw treaty then pending, that they might be located on lands acquired from them.

During the year the Arkansas Cherokees had also learned that the Oneidas of New York were desirous of obtaining a home in the West, and had made overtures for their settlement among them.[244] The main object of the Cherokees in desiring to secure these originally eastern Indians for close neighbors is to be found in the increased strength they would be able to muster in sustaining their quarrel with their native western neighbors.

It may be interesting in this connection to note the fact that in 1825 the Cherokees sent a delegation to Wapakoneta, Ohio, accompanied by certain Western Shawnees, whose mission was to induce the Shawnees at that point to join them in the West. Governor Lewis Cass, under instructions from the War Department, held a council at Wapakoneta, lasting nine days,[245] having in view the accomplishment of this end, but it was unsuccessful.

Governor Clark was also advised by his instructions of the desire of the Cherokees to secure an indefinite outlet west, in order that they should not in the future, by the encroachments of the whites and the diminution of game, be deprived of uninterrupted access to the more remote haunts of the buffalo and other large game animals. He was instructed to do everything consistent with justice in the matter to favor the Cherokees by securing from the Osages the concession of such a privilege, it being the object of the President that every favorable inducement should be held out to the Cherokees east of the Mississippi to remove and join their western brethren. This extension of their territory to the west was promised them by the President in the near future, and in the summer of 1819[246] the Secretary of War instructed Reuben Lewis, United States Indian agent, to assure the Cherokees that the President, through the recent accession of territory from the Osages, was ready and willing to fulfill his promise.

_Survey of east boundary of Cherokees in Arkansas._--Provision having been made in the treaty of 1817[247] for a definition of the east line of the tract assigned the Cherokees on the Arkansas, Mr. Reuben Lewis, the Indian agent in that section, was designated, in the fall of 1818,[248] to run and mark the line, and upon its completion to cause to be removed, without delay, all white settlers living west thereof, with the single exception mentioned in the treaty.

These instructions to Mr. Lewis miscarried in the mails and did not reach him until the following summer. The line had in the mean time been run by General William Rector, under the authority of the Commissioner of the General Land Office, which survey Mr. Lewis was authorized to accept as the correct boundary provided the Cherokees were satisfied therewith.[249] The field notes of this survey were certified by General Rector April 14, 1819, and show the length of the line from Point Remove to White River to have been 71 miles 55 chains and the course N. 53° E.[250]

_Treaty between Cherokees and Osages._--During this interval[251] Governor Clark had succeeded in securing the presence at Saint Louis of representative delegations of both the Osage and Western Cherokee tribes, between whom, after protracted negotiations, he succeeded in establishing the most peaceful and harmonious relations, which were evidenced by all the usual formalities of a treaty.

DISPUTES AMONG CHEROKEES CONCERNING EMIGRATION.

The unhappy differences of mind among the Cherokees east of the Mississippi on the subject of removal, which had been fast approaching a climax as a consequence of the treaty of 1817, had been rather stimulated than otherwise by the frequent departure of parties for their new western home, and the constant importunities of the United States and State officials (frequently bearing the semblance of threats) having in view the removal of the entire tribe. The many and open acts of violence practiced by the "home" as against the "emigration" party at length called forth[252] a vigorous letter of denunciation from the Secretary of War to Governor McMinn, the emigration superintendent. After detailing at much length the many advantages that would accrue to the Cherokee Nation by a removal beyond the contaminating influences always attendant upon the contact of a rude and barbarous people with a higher type of civilization, the unselfish and fatherly interest the Government of the United States had always manifested and still felt in the comfort and progress of the Cherokee people, and the great degree of liberality that had characterized its action in securing for the Cherokees in their new homes an indefinite outlet to the bountiful hunting grounds of the West, the Secretary concluded by an expression of the determination on the part of the United States to protect at all hazards from insult and injury to person or property every Cherokee who should express an opinion or take action favorable to the scheme of emigration. He also instructed Governor McMinn to lose no opportunity of impressing upon the minds of the Cherokees that the practical effect of a complete execution of the treaty of 1817 would be, as had been the intention of the Government when it was negotiated, to compel them either to remove to the Arkansas or to accept individual reservations and become citizens of the States within whose limits they respectively resided.

PUBLIC SENTIMENT IN TENNESSEE AND GEORGIA CONCERNING CHEROKEE REMOVAL.

Governor McMinn, being the executive of the State of Tennessee, could hardly be supposed to present the views of the Secretary of War to the Cherokees on the subject of their removal in milder terms or manner than they had been communicated to him. The public officer in that State who should have neglected such an opportunity of compelling the Cherokees to appreciate the benefits of a wholesale emigration to the West would have fared but ill at the polls in a contest for re-election. The people of both Tennessee and Georgia were unalterably determined that the Indians should be removed from their States, and no compromise or temporary expedient of delay would satisfy their demands.

Millions of acres of valuable lands, rich in all the elements that combine to satisfy the necessities and the desires of the husbandman--mountain, valley, and plain--comprising every variety of soil, fertilized by innumerable running streams and clothed with heavy forests of the finest timber, were yet in the possession of the native tribes of this region. Other lands in great quantities, available for white settlement and occupation, both in Kentucky and the adjoining States, were, it is true, lying idle. In point of soil, water, and timber they were doubtless equal if not superior to the Indian possessions. But the idea was all-prevalent then as it is now in border communities, that, however attractive may be the surrounding districts of public lands open to the inclination of anybody who desires to settle thereon, the prohibited domain of a neighboring Indian reservation must of necessity surpass it, and no application of the principles of reason, philosophy, or justice will serve to lessen the desire for its possession. Governor McMinn convened[253] a council of the Cherokees, at which he presented to them in the strongest light the benefits that would accrue to their nation in the increasing happiness, prosperity, and population such as would attend their removal to the Arkansas, while, on the other hand, nothing but evil could follow their continued residence east of the Mississippi. Their lands would be constantly encroached upon by white settlers; border desperadoes would steal their stock, corrupt their women, and besot their warriors. However anxious the Government might be to protect them in the uninterrupted enjoyment of their present possessions, it would, from the circumstances of the case, be utterly unable to do so. He therefore proposed to them that they should, as a unit, agree to remove west of the Mississippi, and that the United States should pay them for their lands the sum of $100,000, in addition to all expenses of removal; which amount, upon their prompt and indignant refusal, he at once offered to double, but with as small measure of success.

The treaty of 1817 had made provision for the taking of a census of the whole Cherokee people during the month of June of the following year. The census was to form the basis for an equitable distribution of the annuities and other benefits of which the Cherokee Nation was in receipt, between the portion who continued to abide in their eastern homes and those who had removed to the Arkansas country, in proportion to their respective numbers. Pending this enumeration no annuities had been paid them, which produced much annoyance and dissatisfaction among both parties.

In consequence of the hostile and vindictive attitude manifested toward the emigrant party by the remainder of the nation and the many obstacles sought to be thrown in the path of removal, the authorities of the United States had hitherto refused to comply with the census provision of the treaty of 1817. Governor McMinn, after the rejection of both his purchase and his removal propositions, then proposed (in answer to the demand of the Cherokee council that he should cause the census to be taken in the manner provided) that if they would pass a formal vote of censure upon such of their officers as he should name as having violated the treaty by the use of intimidating measures against the Arkansas emigrants, he would cause the work of taking the census to be at once begun. The council also declined to do this, admitting that if such conduct had characterized any of their officers it was deserving of censure but denying that any proof of the charges had been submitted. They at last, however, as an evidence of their good disposition toward the United States, consented to the removal of one of the offensive officers named from his position as a member of the council, and the Secretary of War authorized[254] the taking of the census to be proceeded with. Governor McMinn, in summing up the results of this council,[255] assumes that about one-half of the nation had already committed themselves to the policy outlined in the treaty of 1817, by the fact that since December 28 of that year 718 families had enrolled themselves for removal (aggregating, with those already removed, 5,291 individuals), besides 146 families who had elected to take reservations in severalty. The lack of tangible results following this council was promptly reported to the Secretary of War by both Governor McMinn and Agent Meigs. The latter advised the authorities[256] that a fully authorized and representative delegation of the Cherokee Nation would shortly proceed to Washington, and that, in his judgment, the nation was rapidly becoming satisfied of their inability to long postpone what to every impartial observer must appear as inevitable--an exchange of their country for a location west of the Mississippi River.

This delegation in due time[257] arrived at the capital, and a series of councils or interviews was at once entered upon between themselves and the Secretary of War, as representing the President. Many and just were the causes of complaint presented to the Secretary by the delegation. The recital of their wrongs, the deep affection manifested for their native hills and streams, and the superstitious dread with which they looked upon removal to a new country as being the decisive step in their dispersion and destruction as a people were calculated to excite the sympathy of an unprejudiced mind. It had long been evident, however, that the simple minded barbarian was unable to cope with the intelligent and persistent demands of civilization, and that, with or without his consent, the advancing host of white settlers would ere many years be in full enjoyment of his present possessions.

TREATY CONCLUDED FOR FURTHER CESSION OF LAND.

After several preliminary discussions concerning the best method of adjusting their difficulties, the Secretary of War submitted to them,[258] in writing, a statement of the basis upon which the United States would enter into a treaty with them, urging prompt action thereon, in order that the Senate might have time to exercise its constitutional functions upon the same prior to its approaching adjournment.

The salient points of this proposition were that the Cherokees should make a cession of land in proportion to the estimated number of their nation who had already removed or enrolled themselves for removal to the Arkansas; that the United States preferred the cession to be made in Tennessee and Georgia, and that in the latter State it should be as near and convenient to the existing white settlements as was possible; that the reservation which the Cherokees had expressed a desire to make for the benefit of a proposed school fund should be located within the limits of Alabama Territory, inasmuch as the cession to be made in Georgia would, under the provisions of the act of Congress of 1802, belong to that State, and the lands covering the proposed cession in Tennessee would be subject to location by North Carolina military land warrants. Neither was such school reservation to constitute any portion of the land which the Cherokees were to cede in conformity to the principle of exchange embodied in the first paragraph. The United States would continue to extend its protection to both branches of the Cherokee people, but those remaining east of the Mississippi, having expressed a desire that the lands retained by them should be absolutely guaranteed from any danger of future cession, were informed that in order to secure such guarantee it was indispensable that the cessions they were about to make should be ample, and that the portion of territory reserved by them should not be larger than was essential to their wants and convenience. The Secretary reminded them that should a larger quantity be retained it would not be possible, by any stipulation in the treaty, to prevent future cessions; that so long as they retained more land than was necessary or convenient for themselves they would feel inclined to sell and the United States to purchase. He commented on the fact that they were rapidly becoming like the white people, and could not longer live by hunting, but must work for their subsistence. In their new condition of life far less land would be essential to their happiness. Their great object should be to hold their land by severalty titles and to gradually adopt the manners and laws of life which prevailed among their white neighbors. It was only thus that they could be prosperous and happy, and neglect to accept and profit by the situation would inevitably result in their removal or extinction.

The question as to the area of territory that should be ceded as the equitable proportion of the Arkansas Cherokees formed the subject of much dispute. The Eastern Cherokees denied the accuracy of the emigration roll of Governor McMinn, and asserted that, instead of 5,291 emigrants, as stated by him, there had actually been not exceeding 3,500, while the non-emigrant portion of the nation they gave as numbering 12,514, or more than three-fourths of the entire community.[259]

It being impossible to reconcile these radical differences of estimate and the Indians becoming wearied and discouraged with the persistent importunities of the United States officials, they consented to the cession of those tracts of country naively described in the treaty of February 27, 1819,[260] as "_at least as extensive_" as that to which the United States was entitled under the principles and provisions of the treaty of 1817. These cessions were made, as recited in the preamble to the treaty, as the commencement of those measures necessary to the civilization and preservation of their nation, and in order that the treaty of July 8, 1817, might, without further delay or the trouble or expense of taking the census therein provided for, be finally adjusted. It was also agreed that the distribution of annuities should be made in the proportion of two to one in favor of the Eastern Cherokees (it being assumed that about one-third of the nation had gone west), with the proviso that if the Arkansas Cherokees should offer formal objection to this ratio within one year after the ratification of the treaty, then a census, solely for the purpose of making a fair distribution of the annuity, should be taken at such time and in such manner as the President of the United States should designate. All leases of any portion of the territory reserved to the Cherokees were declared void, and the removal of all intruders upon their lands was promised, to which latter end an order was issued requiring such removal to take place on or before July 1, 1819.

Thus was concluded the treaty of February 27, 1819, which was promptly and favorably acted upon by the Senate and ratified and proclaimed by the President on the 10th of March following. The gist of such provisions of importance as are not detailed in these historical notes will be found by reference to the abstract preceding them.

Immediately upon the approval of the treaty by the Senate, the Secretary of War notified Governor McMinn[261] of the fact, directing him to give no further encouragement to emigration to the Arkansas, but to proceed at once to wind up the business under the treaty of 1817.

_Survey of boundaries._--Preparations were at once made for surveying and marking the lines of the cessions. Hon. Wilson Lumpkin, who was engaged in running the line between East Florida and the State of Georgia, was directed[262] to suspend that work, and designated to survey the line of cession, commencing at the point where the Unicoi Turnpike crossed the Blue Ridge, and thence to the nearest main source of the Chestatee, and also to lay off the individual reservations that should be selected within the State of Georgia.

The following day[263] Robert Houston was appointed to run the line of the cession within the State of Tennessee, commencing on the Highwassee River about 2 miles above Highwassee Old Town, as well as to survey the individual reservations within that State, and also the tracts reserved in North Carolina and Alabama Territory.

Mr. Houston performed his services as a surveyor to the satisfaction of all parties;[264] but in running the line from the Unicoi Turnpike crossing of the Blue Ridge to the nearest main source of the Chestatee, a dispute arose between Mr. Lumpkin and the Cherokees as to which was the nearest main source of that river, the Frogtown or the Tessentee Fork. The surveyor ran the line to the source of the first named fork, while the Indians insisted that the latter was the proper stream, and demanded a re-examination of the survey. Agent Meigs having, however, reported[265] in favor of the correctness of the survey, it was allowed to stand.[266]

STATUS OF CERTAIN CHEROKEES.

Early in the year 1820[267] complaints began to arise as to the status of those Cherokees who had made their election to remove to the Arkansas country but had subsequently concluded to remain east. These, it was stated, numbered 817, and they found themselves placed in rather an anomalous situation. Their proportion of the Cherokee national domain had been ceded to the United States by the treaties of 1817 and 1819. Their share of annuities was being paid, under the treaty of 1819, to the Cherokees of the Arkansas. Their right to individual reservations under either treaty was denied, and they were not even allowed to vote, hold office, or participate in any of the affairs of the nation.

In this condition they soon became an element of much irritation in the body politic of the tribe. The Cherokee authorities urged that they should be furnished with rations and transportation to their brethren in the West, whither they were now willing to remove, but the Secretary of War instructed Agent Meigs[268] that emigration to the Arkansas under the patronage of the Government had ceased, and that those Cherokees who had enrolled themselves for removal but had not yet gone, as well as all others thereafter determining to go, must do so at their own expense.

[Footnote 242: United States Statutes at Large, Vol. VII, p. 195.]

[Footnote 243: May 8, 1818.]

[Footnote 244: Secretary of War to Reuben Lewis, United States Indian agent, May 16, 1818.]

[Footnote 245: May 16 to 24, inclusive.]

[Footnote 246: July 22.]

[Footnote 247: United States Statutes at Large, Vol. VII, p. 156.]

[Footnote 248: Letter of Secretary of War to Capt. William Bradford, September 9, 1818.]

[Footnote 249: Secretary of War to Agent Lewis, July 22, 1819.]

[Footnote 250: Field notes and diagram on file in Indian Office.]

[Footnote 251: October 6, 1818.]

[Footnote 252: July 29, 1818.]

[Footnote 254: December 29, 1818.]

[Footnote 253: November 13, 1818.]

[Footnote 255: November 29, 1818.]

[Footnote 256: December 19, 1818.]

[Footnote 257: February, 1819.]

[Footnote 258: February 11, 1819.]

[Footnote 259: Cherokee delegation to Secretary of War, February 17, 1819.]

[Footnote 260: United States Statutes at Large, Vol. VII, p. 195.]

[Footnote 261: March 6, 1819.]

[Footnote 262: March 11, 1819.]

[Footnote 263: March 12, 1819.]

[Footnote 264: Mr. Houston began his survey at the point where the first hill closes in on Hiwassee River, which he found to be 2-1/2 miles above Hiwassee Old Town. He also states in his report that he found no ridge dividing the waters of Hiwassee from those of Little River. This line from the Hiwassee River to the Tennessee River at Talassee was 46 miles and 300 poles in length. It was begun May 28 and completed June 12, 1819. The line from the junction of Cowee and Nauteyalee Rivers to the Blue Ridge was begun June 12 and completed June 18, 1819, and was 36 miles long. His report, with accompanying map, was communicated to the Secretary of War with letter dated July 30, 1819. A copy of the field notes may be found in American State Papers, Indian Affairs, Vol. II, pp. 192 and 193.]

[Footnote 265: July 24, 1820.]

[Footnote 266: Secretary of War to Agent Meigs, August 14, 1820.]

[Footnote 267: February 9. See letter of Return J. Meigs to Secretary of War.]

[Footnote 268: June 15, 1820.]

TREATY CONCLUDED MAY 6, 1828.--PROCLAIMED MAY 28, 1828.[269]

_Held at Washington City, D. C., between James Barbour,
Secretary of War, specially authorized therefor by the President
of the United States, and the chiefs and headmen of the Cherokee
Nation west of the Mississippi._

MATERIAL PROVISIONS.

The preamble recites the desire of the United States to secure to the Cherokees, both east and west of the Mississippi, a permanent home, "that shall never in all future time be embarrassed by having extended around it the lines or placed over it the jurisdiction of a Territory or State, nor be pressed upon by the extension in any way of any of the limits of any existing Territory or State."

It also assumes that their actual surroundings, both east and west of such river, were unadapted to the accomplishment of such a purpose, and therefore the following articles of agreement were made:

1. The western boundary of Arkansas shall be * * * viz: A line shall be run commencing on Red River at the point where the Eastern Choctaw line strikes said river, and run due north with said line to the river Arkansas; thence in a direct line to the southwest corner of Missouri.

2. The United States agree to possess the Cherokees, and to guarantee it to them forever, * * * of seven million of acres of land, to be bounded as follows, viz: Commencing at that point on Arkansas River where the eastern Choctaw boundary lines strikes said river, and running thence with the western line of Arkansas, as defined in the foregoing article, to the southwest corner of Missouri, and thence with the western boundary line of Missouri till it crosses the waters of Neasho, generally called Grand River; thence due west to a point from which a due-south course will strike the present northwest corner of Arkansas Territory; thence continuing due south on and with the present western boundary line of the Territory to the main branch of Arkansas River; thence down said river to its junction, with the Canadian River, and thence up and between the said rivers Arkansas and Canadian to a point at which a line running north and south from river to river will give the aforesaid seven million of acres.

In addition to the seven millions of acres thus provided for and bounded, the United States guarantee to the Cherokee Nation a perpetual outlet west, and a free and unmolested use of all the country lying west of the western boundary of the above described limits and as far west as the sovereignty of the United States and their right of soil extend.

3. The United States agree to survey the lines of the above cession

4. The United States agree to appraise and pay the value of all Cherokee improvements abandoned by the latter in their removal; also to sell the property and improvements connected with the agency, for the erection of a grist and saw mill in their new home.

5. The United States agree to pay the Cherokees $50,000 as the difference in value between their old and their new lands; also an annuity for three years of $2,000 to repay cost and trouble of going after and recovering stray stock; also $8,760 in full for spoliations committed on them by the Osages or citizens of the United States; also $1,200 for losses sustained by Thomas Graves, a Cherokee chief; also $500 to George Guess, the discoverer of the Cherokee alphabet, as well as the right to occupy a saline; also an annuity of $2,000 for ten years to be expended in the education of Cherokee children; also $1,000 for the purchase of printing press and type; also, the benevolent society engaged in instructing Cherokee children to be allowed the amount expended by it in erection of buildings and improvements; also, the United States to release the indebtedness of the Cherokees to the United States factory to an amount not exceeding $3,500.

6. The United States agree to furnish the Cherokees, when they desire it, a system of plain laws and to survey their lands for individual allotment.

7. The Cherokees agree within fourteen months to leave the lands in Arkansas assigned them by treaties of January 8, 1817, and February 27, 1819.

8. Each head of a Cherokee family east of the Mississippi desiring to remove to the country described in the second article hereof to be furnished by the United States with a good rifle, a blanket, a kettle, five pounds of tobacco, and compensated for all improvements he may abandon; also a blanket to each member of his family. The United States to pay expenses of removal and to furnish subsistence for one year thereafter. Each head of family taking with him four persons to receive $50.

9. The United States to have a reservation 2 by 6 miles at Fort Gibson, with the right to construct a road leading to and from the same.

10. Capt. James Rogers to have $500 for property lost and services rendered to the United States.

11. Treaty to be binding when ratified.

NOTE.--The Senate consented to the ratification of this treaty with the proviso that the "western outlet" should not extend north of 36°, nor to interfere with lands assigned or to be assigned to the Creeks; neither should anything in the treaty be construed to assign to the Cherokees any lands previously assigned to any other tribe.

HISTORICAL DATA.

RETURN J. MEIGS AND THE CHEROKEES.

Return J. Meigs had for nearly twenty years[270] occupied the position of United States agent for the Cherokee Nation. As a soldier of the Revolutionary war he had marched with Arnold through the forests of Maine and Canada to the attack on Quebec in 1775.[271]

He had also, by his faithful, intelligent, and honest administration of the duties of his office as Indian agent, secured the perfect confidence of his official superiors through all the mutations of administration. He had acquired a knowledge of and familiarity with the habits, character, and wants of the Cherokees such as was perhaps possessed by few, if indeed by any other man.

Any suggestions, therefore, that he might make concerning the solution of the Cherokee problem were deserving of grave consideration. His views were submitted in detail upon the condition, prospects, and requirements of the Cherokee Nation in a communication to the Secretary of War.[272] To his mind the time had arrived when a radical change in the policy of managing their affairs had become essential. Ever since the treaty of 1791 the United States, in pursuance of a policy therein outlined for leading the Cherokees toward the attainment of a higher degree of civilization, in becoming herdsmen and cultivators instead of hunters, had been furnishing each year a supply of implements for husbandry and domestic use. In consequence a respectable proportion of that nation had become familiarized with the use of the plow, spade, and hoe. Many of their women had learned the art of spinning and weaving, and in individual instances considerable progress had been made in the accumulation of property. Agent Meigs now thought that the point had been reached where the Cherokee people should begin to fight their own battles of life, and that any further contributions to their support, either in the shape of provisions or tools, would have only a tendency to render them more dependent upon the Government and less competent to take care of themselves. Those who were already advanced in the arts of civilized life should be the tutors of the more ignorant. They possessed a territory of perhaps 10,000,000 acres of land, principally in the States of Georgia, North Carolina, and Tennessee, for the occupation of which they could enumerate little more than 10,000 souls or 2,000 families. If they were to become an agricultural and pastoral people, an assignment of 640 acres of land to each family would be all and more than they could occupy with advantage to themselves. Such an allotment would consume but 1,280,000 acres, leaving more than 8,000,000 acres of surplus land which might and ought to be sold for their benefit, and the proceeds (which he estimated at $300,000, to be paid in fifty annual installments) applied to their needs in the erection of houses, fences, and the clearing and breaking up of their land for cultivation. The authority and laws of the several States within whose limits they resided should become operative upon them, and they should be vested with the rights, privileges, and immunities of citizens of those States. These views met with the concurrence of the administration, and would possibly have been carried into effect but for the intense hostility thereto of not only the unprogressive element among the Cherokees themselves but of the officials and people of the States most interested, who could not view with complacency the permanent occupation of a single acre of land within their limits by the aboriginal owners.

TENNESSEE DENIES THE VALIDITY OF CHEROKEE RESERVATIONS.

About this time trouble arose between the authorities of the State of Tennessee and the surveyor (Robert Houston) who had been intrusted with the duty of laying off such individual reservations as should be taken under the provisions of the treaties of 1817 and 1819. Mr. Houston reported to the Secretary of War that the legislature of Tennessee had refused to confirm all such reservations taken in virtue of the provisions of those treaties subsequent to the 1st of July, 1818, or, in other words, after the time provided for taking the Cherokee census had expired, and desired the opinion and instructions of the Department thereon. The question involved in this dispute was deemed of sufficient importance to secure an official opinion from the Attorney-General prior to directing any further action.[273] An opinion was rendered[274] by Attorney-General Wirt, the substance of which was that the right of taking these reservations having been in the first instance given by the treaty of 1817 until the census should be taken, and the time for taking the census having been, by the acquiescence of both parties to the treaty, kept open until the conclusion of the treaty of February 27, 1819, all the reservations taken prior to this latter date were legal, more especially as they had been ratified by the recognition of them contained in the treaty of 1819. Furthermore, the second article of that treaty, taken in connection with the seventh article, continued the period for taking reservations until the 1st of January, 1820. Mr. Houston was instructed[275] to proceed to lay off the reservations in consonance with this opinion, notwithstanding which the authorities of Tennessee took issue therewith and passed a law providing for the sale of the disputed reserves, whereupon the War Department instructed[276] Agent Meigs to cause one or two test cases to be prepared for trial in the courts.

While on the subject of these reservations it is pertinent to remark that by act of March 3, 1823, Congress appropriated $50,000 to be expended in extinguishing the Indian title to such individual fee simple reservations as were made within the limits of Georgia by the Cherokee treaties of 1817 and 1819 and by the Creek treaties of 1814 and 1821. James Merriwether and Duncan G. Campbell were appointed as commissioners to carry the same into effect. Twenty-two thousand dollars were also appropriated May 9, 1828, to reimburse the State of North Carolina for the amount expended by her authorities in extinguishing Cherokee reservation titles in that State under the treaties of 1817 and 1819.

UNITED STATES AGREE TO EXTINGUISH INDIAN TITLE IN GEORGIA.

By an agreement between the United States and the State of Georgia bearing date April 24, 1802,[277] Georgia ceded to the United States all the lands lying south of Tennessee and west of Chattahoochee River and a line drawn from the mouth of Uchee Creek direct to Nickojack, on the Tennessee River. In consideration of this cession the United States agreed to pay Georgia $1,250,000, and to extinguish the Indian title whenever the same could be done on peaceable and reasonable terms; also to assume the burden of what were known as the Yazoo claims.

_Georgia charges the United States with bad faith._--Ever since the date of this agreement the utmost impatience had been manifested by the Government and the people of the State of Georgia at the deliberate and careful course which had characterized the action of the General Government in securing relinquishment of their lands in that State from the Creeks and Cherokees. Charges of bad faith on the part of the United States, coupled with threats of taking the matter into their own hands, had been published in great profusion by the Georgians. These served only to enhance the difficulties of the situation and to excite a stubborn resistance in the minds of the Indians against any further cessions of territory.

_Report of Congressional committee._--The subject was brought to the attention of Congress through the action of the governor and legislature of Georgia. A select committee was appointed by the House of Representatives, at the first session of the Seventeenth Congress, to take the matter into consideration and to report whether the said articles of agreement between that State and the United States had so far been executed according to the terms thereof, and what were the best means of completing the execution of the same. This committee submitted a report to the House,[278] wherein, after reciting the terms of the agreement, allusion is made to the Creek treaty of 1814, and the opinion expressed that the agreement might have been more satisfactorily complied with by demanding the cession at that treaty of the Creek lands within Georgia's limits, instead of accepting in large measure those within the Territory of Alabama. The Indians were by this action forced, in the opinion of the committee, within the limits of Georgia, instead of being withdrawn therefrom.

Respecting the Cherokee treaty of July 8, 1817, the committee say that some time previous to its conclusion the Cherokees had represented to the President that their upper and lower towns wished to separate; that the Upper Cherokees desired to be confined to a smaller section of country and to engage in the pursuits of agriculture and civilized life; that the Lower Cherokees preferred continuing the hunter's life, and, owing to the scarcity of game in their own country, proposed to exchange it for land on the west of the Mississippi River; that to carry into effect these wishes of the Indians the treaty of 1817 was held, and the United States then had it in their power to have so far complied with their contract with Georgia as to have extinguished the title of the Cherokees to most of their lands within the limits of that State; that this could readily have been done, for the reason that the Upper Cherokees resided beyond the boundaries of Georgia, and had expressed a desire to retain lands on the Hiwassee River, in Tennessee, whilst the Lower Cherokees, who were desirous of emigrating west, mostly resided in the former State. But, in spite of this opportunity, the United States had purchased an inconsiderable tract of country in Georgia and a very considerable one in Tennessee, apparently in opposition to the wishes of the Indians, the interests of Georgia, and of good faith in themselves. By this treaty the United States had also granted a reservation of 640 acres to each head of an Indian family who should elect to remain on the eastern side of the Mississippi. This the committee viewed as an attempt on the part of the United States to grant lands in fee simple within the limits of Georgia in direct violation of the rights of that State. The provision permitting Cherokees to become citizens of the United States was also characterized as an unwarrantable disregard of the rights of Congress. It was further asserted that by the treaty of 1819 the United States had shown a disposition and determination to permanently fix the Cherokee Indians upon the soil of Georgia, and thereby render it impossible to comply with their contract with that State. Yet another feature of this treaty too objectionable to be overlooked was the agreement of the United States that 12 miles square of land ceded by the Indians should be disposed of and the proceeds invested for the establishment of a school fund for those Indians. In conclusion the committee suggested that in order to a proper execution of the agreement with Georgia it would be necessary for the United States to relinquish the policy they had apparently adopted with regard to civilizing the Indians and keeping them permanently on their lands, at least in respect to the Creeks and Cherokees, and that appropriations should be made from time to time sufficiently large to enable the Government to hold treaties with those Indians for the extinguishment of their title.

_Commissioners appointed to negotiate a new treaty._--Stimulated by the sentiments so strongly expressed in this report of a committee of the House of Representatives, the executive authorities determined to make another effort to secure a further cession of territory from the Cherokees.

Accordingly the President appointed[279] General John Floyd, Maj. Freeman Walker, and Hon. J. A. Cuthbert, all of Georgia, commissioners to negotiate a treaty with that nation, and advised them of his earnest desire that a cession should be secured from the Indians such as would prove satisfactory to that State. Messrs. Walker and Cuthbert declined their appointments, and Duncan G. Campbell and General David Merriwether were appointed[280] in their places. General Merriwether dying shortly after, was succeeded by Maj. James Merriwether, whom it had been the original intention to appoint, but for whose name that of General Merriwether had been inserted in the primary appointment through mistake. Before any active steps had been taken toward the performance of the duties assigned the commission, General Floyd resigned,[281] and the President determined to allow the remaining two members to constitute the full commission. Their appointment was submitted to and approved[282] by the Senate, and in the transmission of their new commissions by the Secretary of War perseverance and judicious management were enjoined upon them as essential to success in their negotiations. It would seem that all their perseverance was needed, for the commissioners were unable to secure even an interview with the Cherokee authorities until a date and place had been designated for the fourth time.

_Death of Agent Meigs._--About this time[283] Agent Meigs, who since 1801 had represented the Government with the Cherokees, died, and ex-Governor McMinn, of Tennessee, was appointed[284] to succeed him.

_Failure to conclude proposed treaty._--The treaty commissioners finally met the council of the Cherokee Nation at Newtown, their capital, on the 4th of October, 1823.[285] They were also accompanied by Johnson Wellborn and James Blair, who had been appointed by the governor of Georgia as commissioners to advance the interests and protect the rights of that State. The negotiations were all conducted in writing, and form an interesting chapter in the history of the methods used throughout a long series of years to secure from the Cherokees, by "voluntary, peaceful, and reasonable means," the relinquishment of their ancestral territory. The commissioners set forth their desire to procure the cession of a tract of country comprising all to which the Cherokees laid claim lying north and east of a line to begin at a marked corner at the head of Chestatee River, thence along the ridge to the mouth of Long Swamp Creek, thence down the Etowah River to the line to be run between Alabama and Georgia, thence with that line to the dividing line between the Creeks and Cherokees, and thence with the latter line to the Chattahoochee. In consideration of this proposed cession, the commissioners agreed that the United States should pay the sum of $200,000 and also indemnify the nation against the Georgia depredation claims, as well as the further sum of $10,000 to be paid immediately upon the signing of the treaty.

To this proposition, in spite of the threatening language used by the commissioners, the Indians invariably and repeatedly returned the answer, "We beg leave to present this communication as a positive and unchangeable refusal to dispose of one foot more of land."[286]

The commissioners, seeing the futility of further negotiations, adjourned _sine die_,[287] and a report of their proceedings was made by Commissioner Campbell thirty days later, Major Merriwether having in the mean time resigned.