Chapter VIII: Front Matter (8)

It being apprehended that the above would afford insufficient land for the Cherokees, the United States, in consideration of $500,000, agree to patent to them in fee simple the following additional tract, viz: Beginning at the southeast corner of the Osage Reservation, and running north along the east line of the Osage lands 50 miles to the northeast corner thereof, thence east to the west line of the State of Missouri, thence with said line south 50 miles, thence west to the place of beginning, estimated to contain 800,000 acres, it being understood that if any of the Quapaw lands should fall within these limits they should be excepted.

3. All the foregoing described lands to be included in one patent, under the provisions of the act of May 28, 1830; the United States to retain possession of the Fort Gibson military reservation until abandoned, when it shall revert to the Cherokees. The United States reserve the right to establish post and military roads and forts in any part of the Cherokee country.

4. The United States agree to extinguish for the Cherokees the Osage half-breed titles to reservations under the treaty of 1825 for the sum of $15,000. The United States agree to pay to the American Board of Commissioners for Foreign Missions the appraised value of their improvements at Union and Harmony missions.

5. The United States agree that the land herein guaranteed to the Cherokees shall never, without their consent, be included within the limits or jurisdiction of any State or Territory. The United States also agree to secure them the right to make and carry into effect such laws as they deem necessary, provided they shall not be inconsistent with the Constitution of the United States and such acts of Congress as provide for the regulation of trade and intercourse with the Indian tribes; and provided also they shall not affect such citizens and army of the United States as may travel or reside in the Indian country by permission granted under the laws or regulations thereof.

6. Perpetual peace shall exist between the United States and the Cherokees. The United States shall protect the Cherokees from domestic strife, foreign enemies, and from war with other tribes, as well as from the unlawful intrusion of citizens of the United States. The Cherokees shall endeavor to maintain peace among themselves and with their neighbors.

7. The Cherokees shall be entitled to a delegate in the United States House of Representatives whenever Congress shall make provision for the same.

8. The United States agree to remove the Cherokees to their new home and to provide them with one year's subsistence thereafter. Those desiring to remove themselves shall be allowed a commutation of $20 per head therefor, and, if they prefer it, a commutation of $33-1/3 per head in lieu of the one year's promised subsistence. Cherokees residing outside the limits of the nation who shall remove within two years to the new Cherokee country shall be entitled to the same allowances as others.

9. The United States agree to make an appraisement of the value of all Cherokee improvements and ferries. The just debts of the Indians shall be paid out of any moneys due them for improvements and claims. The Indians shall be furnished with sufficient funds for their removal, and the balance of their dues shall be paid them at the Cherokee Agency west of the Mississippi. Missionary establishments shall be appraised and the value paid to the treasurers of the societies by whom they were established.

10. The President of the United States shall invest in good interest-paying stocks the following sums for the benefit of the Cherokee people, the interest thereon only to be expended: $200,000, in addition to their present annuities, for a general national fund; $50,000 for an orphans' fund; $150,000, in addition to existing school fund, for a permanent national school fund: the disbursement of the interest on the foregoing funds to be subject to examination and any misapplications thereof to be corrected by the President of the United States.

On two years' notice the Cherokee council may withdraw their funds, by the consent of the President and the United States Senate, and invest them in such manner as they deem proper. The United States agree to appropriate $60,000 to pay the just debts and claims against the Cherokee Nation held by citizens of the same, and also claims of citizens of the United States for services rendered the nation. Three hundred thousand dollars is appropriated by the United States to liquidate Cherokee claims against the United States for spoliations of every kind.

11. The Cherokees agree to commute their existing permanent annuity of $10,000 for the sum of $214,000, the same to be invested by the President as a part of the general fund of the nation. Their present school fund shall also constitute a portion of the permanent national school fund.

12. Such Cherokees as are averse to removal west of the Mississippi and desire to become citizens of the States where they reside, if qualified to take care of themselves and their property, shall receive their proportion of all the personal benefits accruing under this treaty for claims, improvements, and per capita.

Such heads of Cherokee families as desire to reside within the States of North Carolina, Tennessee, and Alabama, subject to the laws thereof and qualified to become useful citizens, shall be entitled to a pre-emption right of 160 acres at the minimum Congress price, to include their improvements. John Ross and eleven others named are designated as a committee on the part of the Cherokees to recommend persons entitled to take pre-emption rights, to select the missionaries who shall be removed with the nation, and to transact all business that may arise with the United States in carrying the treaty into effect. One hundred thousand dollars shall be expended by the United States for the benefit of such of the poorer classes of Cherokees as shall remove west.

13. All Cherokees and their heirs to whom reservations had been made by any previous treaty, and who had not sold or disposed of the same, such reservations being subsequently sold by the United States should be entitled to receive the present value thereof from the United States as unimproved lands. All such reservations not sold were to be confirmed to the reservees or their heirs. All persons entitled to reservations under treaty of 1817, whose reservations, as selected, were included by the treaty of 1819 in the unceded lands of the Cherokee Nation, shall be entitled to a grant for the same. All reservees who were obliged by the laws of the States in which their reservations were situated to abandon the same or purchase them from the States, shall be deemed to have a just claim against the United States for the value thereof or for the amount paid therefor, with interest. The amount allowed for reservations under this article is to be paid independently, and not out of the consideration allowed to the Cherokees for spoliation claims and their cession of lands.

14. Cherokee warriors wounded in the service of the United States during the late war with Great Britain and the southern tribes of Indians shall be allowed such pensions as Congress shall provide.

15. The balance of the consideration herein stated, after deducting the amount actually expended for improvements, ferries, claims, spoliations, removal, subsistence, debts, and claims upon the Cherokee Nation, additional quantity of lands, goods for the poorer class of Cherokees, and the several sums to be invested for the general national funds, shall be divided equally among all the people belonging to the Cherokee Nation east, according to the census just completed. Certain Cherokees who had removed west since June, 1833, were to be paid for their improvements.

16. The Cherokees stipulate to remove west within two years from the ratification of this treaty, during which time the United States shall protect them in the possession and enjoyment of their property, and in case of failure to do so shall pay all losses and damages sustained by them in consequence thereof.

The United States and the several States interested in the Cherokee lands shall immediately proceed to survey the lands ceded by this treaty, but the agency buildings and tract of land surveyed and laid off for the use of Col. R. J. Meigs, Indian agent, shall continue subject to the control of the United States or such agent as may be specially engaged in superintending the removal of the tribe.

17. All claims arising under or provided for in this treaty shall be examined and adjudicated by General William Carroll and John F. Schermerhorn, or by such commissioners as shall be appointed by the President of the United States for that purpose, and their decision shall be final, and the several claimants shall be paid on their certificate by the United States. All stipulations of former treaties not superseded or annulled by this treaty shall continue in force.

18. The annuities of the nation which may accrue during the next two years preceding their removal shall, on account of the failure of crops, be expended in provision and clothing for the benefit of the poorer classes of the nation as soon after the ratification of this treaty as an appropriation shall be made. So interference is, however, intended with that part of the annuities due the Cherokees west under the treaty of 1819.

19. This treaty is to be obligatory after ratification.

20. The United States guarantee the payment of all unpaid just claims upon the Indians, without expense to them, out of the proper funds of the United States for the settlement of which a cession or cessions of land has or have been heretofore made by the Indians in Georgia, provided the United States or State of Georgia has derived benefit therefrom without having made payment therefor.

This article was inserted by unanimous request of the Cherokee committee after the signing of the treaty, it being understood that its rejection by the Senate of the United States should not impair any other article of the treaty.

On the 31st of December, 1835, James Rogers and John Smith, as delegates from the Western Cherokees, signed an agreement which is attached to the treaty wherein they agreed to its provisions on behalf of the Western Cherokees, with the proviso that it should not affect any claims of the latter against the United States.

[Footnote 345: United States Statutes at Large, Vol. VII, p. 478.]

SUPPLEMENTARY ARTICLES TO FOREGOING TREATY, CONCLUDED MARCH 1, 1836; PROCLAIMED MAY 23, 1836.[346]

_Agreed on between John F. Schermerhorn, commissioner on the
part of the United States, and the committee duly authorized at
a general council held at New Echota, Georgia, to act for and on
behalf of the Cherokee people._

MATERIAL PROVISIONS.

These articles were concluded as supplementary to the treaty of December 29, 1835, and were ratified at the same time and as a part of that treaty. They were rendered necessary by the determination of President Jackson not to allow any pre-emptions or reservations, his desire being that the whole Cherokee people should remove together to the country west of the Mississippi.

1. All pre-emption rights and reservations provided for in articles 12 and 13 are declared void.

2. The Cherokees having supposed that the sum of $5,000,000, fixed as the value of Cherokee lands, did not include the amount required to remove them, nor the value of certain claims held by them against citizens of the United States, and the President being willing that the subject should be referred to the Senate of the United States for any further provision that body should deem just.

3. It is agreed, should it receive the concurrence of that body, to allow the Cherokees the sum of $600,000, to include the expenses of removal and all claims against the United States not otherwise specifically provided for, and to be in lieu of the aforesaid reservations and pre-emptions and of the $300,000 for spoliations provided in article 1 of the original treaty to which this is supplementary. This sum of $600,000 shall be applied and distributed agreeably to the provisions of said treaty, the surplus, if any, to belong to the education fund.

4. The provision of article 16 concerning the agency reservations is not intended to interfere with the occupant right of any Cherokees whose improvements may fall within the same.

The $100,000 appropriated in article 12 for the poorer class of Cherokees, and intended as a set-off to the pre-emption rights, shall now be added to the general national fund of $400,000.

5. The expenses of negotiating the treaty and supplement and of such persons of the Cherokee delegation as may sign the same shall be defrayed by the United States.

NOTE.--The following amendments were made by the United States Senate: In article 17 strike out the words "by General William Carroll and John F. Schermerhorn, or;" also, in the same article, after the word "States," insert "by and with the advice and consent of the Senate of the United States;" and strike out the 20th article, which appears as a supplemental article.

HISTORICAL DATA.

ZEALOUS MEASURES FOR REMOVAL OF EASTERN CHEROKEES.

While the events connected with the negotiation and the execution of the treaty of 1828 with the Western Cherokees were occurring those Cherokees who yet remained in their old homes east of the Mississippi River were burdened with a continually increasing catalogue of distressing troubles. So soon as the treaty of 1828 was concluded it was made known to them that inducements were therein held out for a continuance of the emigration to the Arkansas country. Agent Montgomery was instructed[347] to use every means in his power to facilitate this scheme of removal, and especially among those Cherokees who resided within the chartered limits of Georgia.

Secret agents were appointed and $2,000 were authorized by the Secretary of War to be expended in purchasing the influence of the chiefs in favor of the project.[348] A. R. S. Hunter and J. S. Bridges were appointed[349] commissioners to value the improvements of the Cherokees who should elect to remove.

After nearly a year of zealous work in the cause, Agent Montgomery was only able to report the emigration of four hundred and thirty-one Indians and seventy-nine slaves, comparatively few of whom were from Georgia.[350] Nine months later three hundred and forty-six persons had emigrated from within the limits of that State.[351] The hostility manifested by the larger proportion of the Cherokees toward those who gave favorable consideration to the plan of removal was so great as to require the establishment of a garrison of United States troops within the nation for their protection.[350]

_President Jackson's advice to the Cherokees._--Early in 1829,[352] a delegation from the nation proceeded to Washington to lay their grievances before President Jackson, but they found the Executive entertaining opinions about their rights very different from those which had been held by his predecessors. They were advised[353] that the answer to their claim of being an independent nation was to be found in the fact that during the Revolutionary war the Cherokees were the allies of Great Britain, a power claiming entire sovereignty of the thirteen colonies, which sovereignty, by virtue of the Declaration of Independence and the subsequent treaty of 1783, became vested respectively in the thirteen original States, including North Carolina, and Georgia. If they had since been permitted to abide on their lands, it was by permission, a circumstance giving no right to deny the sovereignty of those States. Under the treaty of 1785 the United States "give peace to all the Cherokees and receive them into favor and protection." Subsequently they had made war on the United States, and peace was not concluded until 1791. No guarantee, however, was given by the United States adverse to the sovereignty of Georgia, and none could be given. Their course in establishing an independent government within the limits of Georgia, adverse to her will, had been the cause of inducing her to depart from the forbearance she had so long practiced, and to provoke the passage of the recent[354] act of her legislature, extending her laws and jurisdiction over their country. The arms of the United States, the President remarked, would never be employed to stay any State of the Union from the exercise of the legitimate powers belonging to her in her sovereign capacity. No remedy for them, could be perceived except removal west of the Mississippi River, where alone peace and protection could be afforded them. To continue where they were could promise nothing but interruption and disquietude. Beyond the Mississippi the United States, possessing the sole sovereignty, could say to them that the land should be theirs while trees grow and water runs.

The delegation were much cast down by these expressions of the President, but they abated nothing of their demand for protection in what they considered to be the just rights of their people. They returned to their country more embittered than before against the Georgians, and lost no opportunity, by appeals to the patriotism as well as to the baser passions of their countrymen, to excite them to a determination to protect their country at all hazards against Georgian encroachment and occupation.[355]

GENERAL CARROLL'S REPORT ON THE CONDITION OF THE CHEROKEES.

About this time[356] General William Carroll was designated by the President to make a tour through the Cherokee and Creek Nations, with both of which he was supposed to possess much influence. His mission was to urge upon them, and especially upon the former, the expediency of their removal west of the Mississippi under the inducements held out by the treaty of 1828. A month later[357] Col. E. F. Tatnall and on the 8th of July General John Coffee were appointed to co-operate with General Carroll in the accomplishment of his mission. The results of this tour were communicated[358] to the War Department by General Carroll in a report in which he remarked that nothing could be done with the Cherokees by secret methods; they were too intelligent and too well posted on the current news of the day to be long kept in ignorance of the methods and motives of those who came among them. He had met their leading men at Newtown and had submitted a proposal for their removal which was peremptorily rejected. The advancement the Cherokees had made in religion, morality, general information, and agriculture had astonished him beyond measure. They had regular preachers in their churches, the use of spirituous liquors was in great degree prohibited, their farms were worked much after the manner of white people, and were generally in good order. Many families possessed all the comforts and some of the luxuries of life. Cattle, sheep, hogs, and fowl of every kind were found in great abundance. The Cherokees had been induced by Eastern papers to believe the President was not sustained by the people in his views of their proposed removal. Eastern members of Congress had given their delegation to understand while in Washington the preceding spring that the memorial left by them protesting against the extension of the laws of Georgia and Alabama over Cherokee territory would be sustained by Congress, and that until that memorial had been definitely acted on by that body all propositions to them looking toward removal would be worse than useless.

_Cherokees refuse to cede lands in North Carolina._--In the early summer of 1829[359] a commission had also been appointed, consisting of Humphrey Posey and a Mr. Saunders, having in view the purchase from the Cherokees of that portion of their country within the limits of North Carolina, but it, too, failed wholly of accomplishing its purpose.

_Coercive measures of the United States and Georgia._--Sundry expedients were resorted to, both by the General Government and by the authorities of Georgia, to compel the acquiescence of the Indians in the demands for their emigration.

The act of the Georgia legislature of December 20, 1828, already alluded to, was an act "to add the territory within this State and occupied by the Cherokee Indians to the counties of De Kalb _et al._, and to extend the laws of this State over the same." This was followed[360] by the passage of an act reasserting the territorial jurisdiction of Georgia and annulling all laws made by the Cherokee Indians. It further declared that in any controversy arising between white persons and Indians the latter should be disqualified as witnesses. Supplementary legislation of a similar character followed in quick succession, and the proclamation of the governor of the State was issued on the 3d of June, 1830, declaring the arrival of the date fixed by the aforesaid acts and the consequent subjection of the Cherokee territory to the State laws and jurisdiction.[361]

The President of the United States about the same time gave directions[362] to suspend the enrollment and removal of Cherokees to the west in small parties, accompanied by the remark that if they (the Cherokees) thought it for their interest to remain, they must take the consequences, but that the Executive of the United States had no power to interfere with the exercise of the sovereignty of any State over and upon all within its limits. The President also directed[363] that the previous practice of paying their annuities to the treasurer of the Cherokee Nation should be discontinued, and that they be thereafter distributed among the individual members of the tribe. Orders were shortly after[364] given to the commandant of troops in the Cherokee country to prevent _all persons_, including members of the tribe, from opening up or working any mineral deposits within their limits. All these additional annoyances and restrictions placed upon the free exercise of their supposed rights, so far from securing compliance with the wishes of the Government, had a tendency to harden the Cherokee heart.

FAILURE OF COLONEL LOWRY'S MISSION.

In this situation of affairs Col. John Lowry was appointed[365] a special commissioner to visit the Cherokee Nation and again lay before them a formal proposition for their removal west. The substance of Mr. Lowry's proposal as communicated by him to their national council[366] was: (1) To give to the Cherokees a country west of the Mississippi, equal in value to the country they would leave; (2) each warrior and widow living within the limits of Alabama or Tennessee was to be permitted, if so desiring, to select a reservation of 200 acres, which, if subsequently abandoned, was to be sold for the reservee's benefit; (3) each Indian desiring to become a citizen of the United States was to have a reservation in fee-simple; (4) all emigrants were to be removed and fed one year at the expense of the United States, and to be compensated for all property, except horses, they should leave behind them, and, (5) the nation was to be provided with a liberal school fund.

Again the result was an emphatic refusal[367] on the part of the Cherokees to enter into negotiations on the subject. Other special commissioners and emissaries, of whom several were appointed in the next few months, met with the same reception.

DECISION OF THE SUPREME COURT IN CHEROKEE NATION VS. GEORGIA.

Determined to test the constitutionality of the hostile legislation of Georgia, application was made at the January term, 1831, of the Supreme Court of the United States, by John Ross, as principal chief, in the name of the Cherokee Nation, for an injunction against the State of Georgia. The application was based on the theory that the Cherokee Nation was a sovereign and independent power in the sense of the language of the second section of the third article of the Constitution of the United States providing for judicial jurisdiction of cases arising between a State, or the citizens thereof, and foreign states, citizens, or subjects. The majority of the court declared that the Cherokee Nation was not a foreign nation in the sense stated in the Constitution, and dismissed the suit for want of jurisdiction. From this decision, however, Justices Thompson and Story dissented.[368]

FAILURE OF MR. CHESTER'S MISSION.

No further formal attempt was made to secure a compliance with the wishes of the Government until the winter and spring of 1831-'32. A delegation of Cherokees had visited Washington in the interests of their people, and though nothing was accomplished through them, the language used by some members of the delegation had led the Government authorities to hope that a change of sentiment on the subject of removal was rapidly taking place in their minds. In pursuance of this impression the Secretary of War, in the spring of 1832,[369] intrusted Mr. E. W. Chester with a mission to the Cherokees, and with instructions to offer them as a basis for the negotiation of a treaty the following terms:

1. The United States to provide them with a country west of Arkansas sufficiently large for their accommodation.

2. This country to be conveyed to them by patent under the act of Congress of May 28, 1830, and to be forever outside the limits of any State or Territory.

3. The Cherokees to retain and possess all the powers of self-government consistent with a supervisory authority of Congress.

4. To have an agent resident in Washington to represent their interest, who should be paid by the United States.

5. With the consent of Congress they should be organized as a Territory and be represented by a delegate in that body.

6. All white persons should be excluded from their country.

7. The United States to remove them to their new country and to pay the expenses of such removal, which might be conducted in either of three ways, viz:

(_a_) By a commutation in money, to be allowed either individuals or families.

(_b_) By persons to be appointed and paid by the United States.

(_c_) By arrangement among themselves, through which some competent person should remove them at a fixed rate.

8. The United States to provide them with subsistence for one year after removal.

9. An annuity to be secured to them proportioned to the value of the cession of territory they should make.

10. The United States to pay for all Indian improvements upon the ceded land.

11. Provision to be made for the support of schools, teachers, blacksmiths and their supplies, mills, school-houses, churches, council-houses, and houses for the principal chiefs.

12. A rifle to be presented to each adult male, and blankets, axes, plows, hoes, spinning-wheels, cards, and looms to each family.

13. Indian live stock to be valued and paid for by the United States.

14. Annuities under former treaties to be paid to them upon their arrival west of the Mississippi.

15. Provision to be made by the United States for Cherokee orphan children.

16. Protection to be guaranteed to the Cherokees against hostile Indians.

17. A few individual reservations to be permitted east of the Mississippi, but only on condition that the reservees shall become citizens of the State in which they reside, and that all reservations between them and the United States, founded upon their previous circumstances as Indians, must cease.

_Cherokees contemplate removal to Columbia River._--In the discussion of these propositions the fact was developed that a project had been canvassed, and had received much favorable consideration among the Cherokees themselves (in view of the difficulties and harassing circumstances surrounding their situation), to abandon their eastern home and to remove to the country adjacent to the mouth of the Columbia River, on the Pacific coast. This proposition having reached the ears of the Secretary of War, he made haste, in a letter to Mr. Chester,[370] to discourage all idea of such a removal, predicated upon the theory that they would be surrounded by tribes of hostile savages, and would be too remote from the frontier and military posts of the United States to enable the latter to extend to them the arm of protection and support.

Nothing was accomplished by the negotiations of Mr. Chester, and in the autumn[371] of the same year Governor Lumpkin, of Georgia, was requested to attend the Cherokee council in October and renew the proposition upon the same basis. A similar fate attended this attempt.

DECISION OF SUPREME COURT IN WORCESTER VS. GEORGIA.

Among other laws passed by the State of Georgia was one that went into effect on the 1st of February, 1831, which prohibited the Cherokees from holding councils, or assembling for any purpose; provided for a distribution of their lands among her citizens; required all whites residing in the Cherokee Nation within her chartered limits to take an oath of allegiance to the State, and made it an offense punishable by four years' imprisonment in the penitentiary to refuse to do so. Under this law two missionaries, Messrs. Worcester and Butler, were indicted in the superior court of Gwinnett County for residing without license in that part of the Cherokee country attached to Georgia by her laws and in violation of the act of her legislature approved December 22, 1830. In the trial of Mr. Worcester's case, which was subsequently made the test case in the Supreme Court of the United States, he pleaded that he was a citizen of Vermont and entered the Cherokee country as a missionary with the permission of the President of the United States and the approval of the Cherokee Nation; that Georgia ought not to maintain the prosecution inasmuch as several treaties had been entered into by the United States with the Cherokee Nation, by which the latter were acknowledged as a sovereign nation, and by which the territory occupied by them had been guaranteed to them by the United States. The superior court overruled this plea, and Mr. Worcester was tried, convicted, and sentenced to four years in the penitentiary.

The case was carried up on a writ of error to the Supreme Court of the United States, and that court asserted its jurisdiction. In rendering its decision the court remarks that the principle that discovery of parts of the continent of America gave title to the government by whose subjects or by whose authority it was made against all other European governments, which title might be consummated by possession, was acknowledged by all Europeans because it was the interest of all to acknowledge it, and because it gave to the nation making the discovery, as its inevitable consequence, the sole right of acquiring the soil and of making settlements on it. It was an exclusive principle which shut out the right of competition among those who had agreed to it, but not one which could annul the rights of those who had not agreed to it. It regulated the rights of the discoverers among themselves, but could not affect the rights of those already in possession as aboriginal occupants. It gave the exclusive right of purchase, but did not found it on a denial of the right of the possessor to sell. The United States succeeded to all the claims of Great Britain, both territorial and political. Soon after Great Britain had determined on planting colonies in America the King granted sundry charters to his subjects. They purport generally to convey the soil from the Atlantic to the South Sea. The soil was occupied by numerous warlike nations, milling and able to defend their possessions. The absurd idea that feeble settlements made on the sea-coast acquired legitimate power to govern the people or occupy the lands from sea to sea did not then enter the mind of any man. These charters simply conferred the right of purchasing such lands as the natives were willing to sell. The acknowledgment of dependence made in the various Cherokee treaties with Great Britain and the United States merely bound them as a dependent ally claiming the protection of a powerful friend and neighbor and receiving the advantages of that protection, without involving a surrender of their national character. Neither the Government nor the Cherokees ever understood it otherwise. Protection did not imply the destruction of the protected.

Georgia herself had furnished conclusive evidence that her former opinions on the subject of the Indians concurred with those entertained by her sister States and by the Government of the United States. Various acts of her legislature had been cited in the argument of the case, including the contract of cession made in 1802, all tending to prove her acquiescence in the universal conviction that the Cherokee Nation possessed a full right to the lands they occupied, until that right should be extinguished by the United States with their consent; that their territory was separated from that of any State within whose chartered limits they might reside, by a boundary line established by treaties; that within their boundary they possessed rights with which no State could interfere, and that the whole power of regulating the intercourse with them was vested in the United States. The legislation of Georgia on this subject was therefore unconstitutional and void.[372]

_Georgia refuses to submit to the decision of the Supreme Court._--Georgia refused to submit to the decision and alleged that the court possessed no right to pronounce it, she being by the Constitution of the United States a sovereign and independent State, and no new State could be formed within her limits without her consent.

_President Jackson's dilemma._--The President was thus placed between two fires, Georgia demanding the force of his authority to protect her constitutional rights by refusing to enforce the decision of the court, and the Cherokees demanding the maintenance of their rights as guaranteed them under the treaty of 1791 and sustained by the decision of the Supreme Court.

It was manifest the request of both could not be complied with. If he assented to the desire of the Cherokees a civil war was likely to ensue with the State of Georgia. If he did not enforce the decision and protect the Cherokees, the faith of the nation would be violated.[373] In this dilemma a treaty was looked upon as the only alternative, by which the Cherokees should relinquish to the United States all their interest in lands east of the Mississippi and remove to the west of that river, and more earnest, urgent, and persistent pressure than before was applied from this time forward to compel their acquiescence in such a scheme.

DISPUTED BOUNDARIES BETWEEN CHEROKEES AND CREEKS.

Mention has already been made in discussing the terms of the treaty of September 22, 1816, of the complications arising out of the question of disputed boundaries between the Cherokees, Creeks, Choctaws, and Chickasaws. These disputes related chiefly to an adjustment of boundaries within the Territory of Alabama, rendered necessary for the definite ascertainment of the limits of the Creek cession of 1814. But as a result of the Cherokee cession of 1817 and the Creek cessions of 1818, 1821, 1826, and 1827, the true boundary between the territories of these two latter nations became not only a matter of dispute, but one that for years lent additional bitterness to the contest between the people of Georgia and the Indians, especially the Cherokees. Prior to the Revolution, the latter had claimed to own the territory within the limits of Georgia, as far south as the waters of Broad River, and extending from the headwaters of that river westward. Some of this territory was also claimed by the Creeks, and the British Government had therefore in purchasing it accepted a cession from those tribes jointly.[374]

At the beginning of the Federal relations with the Cherokees, a definition of their boundaries had been made by treaty of November 28, 1785, extending on the south as far west as the headwaters of the Appalachee River. Beyond that point to the west no declaration as to the limits of the Cherokee territory was made, because, for the purposes of the Federal Government, none was at that time necessary. But when in course of time other cessions came to be made, both by the Cherokees and Creeks, it began to be essential to have an exact definition of the line of limits between them. Especially was this the case when, as by the terms of the Creek treaty of February 12, 1825,[375] they ceded all the territory to which they laid claim within the limits of Georgia, and although this treaty was afterwards declared void by the United States, because of alleged fraud, Georgia always maintained the propriety and validity of its negotiation.

As early as June 10, 1802, a delegation of Cherokees interviewed Colonel Hawkins and General Pickens, and after demanding the removal of certain settlers claimed to be on their lands, asserted the boundary of their nation in the direction of the Creeks to be the path running from Colonel Easley's, at High Shoals of the Appalachee, to Etowah River. This they had agreed upon in council with the Creeks. A delegation of the Creeks, whom they brought with them from the council, were then interrogated on the subject by Messrs. Hawkins and Pickens, and they replied that the statement of the Cherokees was correct.

In the spring of 1814 (May 15) Agent Meigs had written the Secretary of War that the Cherokees were sensible that the Creeks ought to cede to the United States sufficient land to fully compensate the latter for the expenses incurred in prosecuting the Creek war. However, they (the Cherokees) were incidentally interested in the arrangements, and hoped that the United States would not permit the Creeks to point out the specific boundaries of their cession until the division line between the two nations had been definitely determined. In the following year, in a discussion of the subject with Colonel Hawkins, the Creek agent, Colonel Meigs declares that the Cherokees repel the idea entertained by the Creeks that the Cherokee or Tennessee River was ever their southern boundary. On the contrary, the dividing line between the territories of the two nations should begin at Vann's Old Store, on the Ocmulgee River, thence pursuing such a course as would strike the Coosa River below the Ten Islands. This claim was predicated upon the assertion that the Cherokees had in the course of three successive wars with the Creeks driven them more than a degree of latitude below the point last named. Another Cherokee version was to the effect that at a joint council of the two nations, held prior to the Revolutionary War, the boundary question was a subject of discussion, when it was agreed to allow the oldest man in the Creek Nation to determine the point. This man was James McQueen, a soldier who had deserted from Oglethorpe's command soon after the settlement of Savannah. McQueen decided that the boundary should be a line drawn across the headwaters of Hatchet and Elk Creeks, the former being a branch of the Coosa and the latter a tributary of the Tallapoosa. This decision was predicated upon the fact that the Cherokees had driven the Creeks below this line, and it had been mutually agreed that it should constitute the boundary.

In contradiction of this it was asserted by the Creeks that in the year 1818 it had been admitted at a public meeting of the Creeks by "Sour Mush," a Cherokee chief, that the Creeks owned all the land up to the head of Coosa River, including all of its waters; that the Tennessee was the Cherokee River, and the territories of the two nations joined on the dividing ridge between those rivers. In former times, on the Chattahoochee, the Cherokees had claimed the country as low down as a branch of that river called Choky (Soquee) River. Subsequently they were told by the Coweta king, that they might live as low down as the Currahee Mountain, but that their young men had now extended their claim to Hog Mountain, without however any shadow of right or authority.[376]

With a view to an amicable adjustment of their respective rights a council was held between the chiefs and headmen of the two nations at the residence of General William McIntosh, in the Creek country, at which a treaty was concluded between themselves on the 11th of December, 1820. In the first article of this treaty the boundary line between the two nations was fixed as running from the Buzzard's Roost, on the Chattahoochee, in a direct line to the Coosa River, at a point opposite the mouth of Wills Town Creek, and thence down the Coosa River to a point opposite Fort Strother. This boundary was reaffirmed by them in a subsequent treaty concluded October 30, 1822.[377]

The Cherokee treaty of 1817 had assumed to cede a tract of country "Beginning at the high shoals of the Appalachy River and running thence along the boundary line between the Creek and Cherokee Nations westwardly to the Chatahouchy River," etc.

The Creek treaty of 1818[378] in turn ceded a tract the northern boundary of which extended from Suwanee Old Town, on the Chattahoochee, to the head of Appalachee River, and which overlapped a considerable portion of the Cherokee cession of 1817.

The Creek treaty of 1821[379] ceded a tract running as far north as the Shallow Ford of the Chattahoochee, which also included a portion of the territory within the limits of the Cherokee domain, as claimed by the latter.

By the treaty of 1825[380] with the Creeks they ceded all their remaining territory in Georgia. Complaint being made that this treaty had been entered into by only a small non-representative faction of that nation, an investigation was entered upon by the United States authorities, and as the result it was determined to declare the treaty void and to negotiate a new treaty with them, which was done on the 24th of January, 1826.[381]

By this last treaty as amended the Creeks ceded all their land east of the Chattahoochee River, as well as a tract north and west of that river. In the cession of this latter tract it was assumed that a point on Chattahoochee River known as the Buzzard's Roost was the northern limit of the Creek supremacy.

The authorities of Georgia strongly insisted that not only had the treaty of 1825 been legitimately concluded, whereby they were entitled to come into possession of all the Creek domain within her limits, but also that the true line of the Creek limits toward the north had been much higher up than would seem to have been the understanding of the parties to the treaty of 1826.

In the following year the Creeks ceded all remaining territory they might have within the limits of Georgia.[382] This left the only question to be decided between the State of Georgia and the Cherokees the one of just boundaries between the latter and the country recently acquired from the Creeks.

The War Department had been of the impression that the proper boundary between the two nations was a line to be run directly from the High Shoals of the Appalachee to the Ten Islands, or Turkeytown, on the Coosa River.[383] On this hypothesis Agent Mitchell, of the Creeks, had been instructed, if he could do so, "without exciting their sensibilities," to establish it as the northern line of the Creek Nation.

Georgia, on the contrary, claimed that the proper boundary extended from Suwanee Old Town, on the Chattahoochee, to Sixes Old Town, on the Etowah River; from thence to the junction of the Etowah and Oostanaula Rivers, and following the Creek path from that point to Tennessee River. In pursuance of this claim Governor Forsyth instructed[384] Mr. Samuel A. Wales as the surveyor for that State to proceed to establish the line of limits in accordance therewith. Mr. Wales, upon commencing operations, was met with a protest from Colonel Montgomery, the Cherokee agent,[385] notwithstanding which he continued his operations in conformity with his original instructions.

This action of the surveyor having produced a feeling of great excitement and hostility within the Cherokee Nation, rendering the danger of collision and bloodshed imminent, the United States authorities took the matter in hand, and, by direction of the President, General John Coffee was appointed and instructed[386] to proceed to the Cherokee Nation, and from the most reliable information and testimony attainable to report what, in his judgment, should in justice and fairness to all parties concerned be declared to be the true line of limits between Georgia, as the successor of the Creeks, and the Cherokee Nation.

General Coffee proceeded to the performance of the duty thus assigned him. A large mass of testimony and tradition on the subject was evoked, in summing up which General Coffee reported[387] to the Secretary of War that the line of demarkation between the two nations should begin at the lower Shallow Ford of the Chattahoochee, which was about 15 miles below the Suwanee Old Town. From thence the line should run westwardly in a direction to strike the ridge dividing the waters running into Little River (a branch of the Hightower or Etowah) from those running into Sweet Water Creek (a branch of the Chattahoochee emptying about 2 miles below Buzzard's Roost). From this point such ridge should be followed westwardly, leaving all the waters falling into Hightower and Coosa Rivers to the right and all the waters that run southwardly into Chattahoochee and Tallapoosa Rivers to the left, until such ridge should intersect the line (which had been previously as per agreement of 1821 between the Creeks and Cherokees themselves) run and marked from Buzzard Roost to Wills Creek, and thence with this line to the Coosa River opposite the mouth of Wills Creek.

Two weeks later[388] General Coffee, in a communication to the Secretary of War, alludes to the dissatisfaction of Georgia with the line as determined by him, and her claim to an additional tract of territory by remarking that "I have thought it right to give this statement for your own and the eye of the President only, that you may the better appreciate the character of the active agents and partisans of the Georgia claim, for really I cannot see any reasonable or plausible evidence on which she rests her claim."

The President, after a careful examination of the testimony and much solicitude upon the subject, decided to approve General Coffee's recommendation. The Cherokee agent was therefore directed[389] to notify all white settlers living north of Coffee's line to remove at once. The governor of Georgia was also notified of the President's decision, and, though strongly and persistently protesting against it, the President firmly refused to revoke his action.[390] The Cherokees were equally dissatisfied with the decision, because the line was not fixed as far south as Buzzard's Roost, in accordance with the agreement of 1821 between themselves and the Creeks.[391]

CHEROKEES PLEAD WITH CONGRESS AND THE PRESIDENT FOR JUSTICE.

A delegation of the Cherokees, with John Ross at their head, was quartered in Washington during the greater part of the winter of 1832-'33, bringing to bear in behalf of their nation every possible influence upon both Congress and the Executive. A voluminous correspondence was conducted between them and the War Department upon the subject of their proposed removal. In a communication on the 28th of January, 1833, they ask leave to say that, notwithstanding the various perplexities which the Cherokee people had experienced under the course of policy pursued toward them, they were yet unshaken in their objections to a removal west of the Mississippi River. On the question of their rights and the justice of their cause, their minds were equally unchangeable. They were, however, fully sensible that justice and weakness could not control the array of oppressive power, and that in the calamitous effects of such power, already witnessed, they could not fail to foresee with equal clearness that a removal to the west would be followed in a few years by consequences no less fatal.

They therefore suggested for the consideration of the President, whether it would not be practicable for the Government to satisfy the claims of Georgia by granting to those of her citizens who had in the lotteries of that State drawn lots of land within Cherokee limits other lands of the United States lying within the Territories and States of the Union, or in some other way.

_The President urges their assent to removal._--The Secretary of War, in replying for the President (February 2,1833), was unable to see that any practicable plan could be adopted by which the reversionary rights held under the State of Georgia could be purchased upon such terms as would justify the Government in entering into a stipulation to that effect. Nor would it at all remove the difficulties and embarrassments of their condition. They would still be subject to the laws of Georgia, surrounded by white settlements and exposed to all those evils which had always attended the Indian race when placed in immediate contact with the white population. It was only by removing from these surroundings that they could expect to avoid the fate which had already swept away so many Indian tribes.

_Reply of John Ross._--Ross retorted, in a communication couched in diplomatic language, that it was with great diffidence and deep regret he felt constrained to say, that in this scheme of Indian removal he could see more of expediency and policy to get rid of the Cherokees than to perpetuate their race upon any permanent, fundamental principle. If the doctrine that Indian tribes could not exist contiguous to a white population should prevail, and they should be compelled to remove west of the States and Territories of this republic, what was to prevent a similar removal of them from there for the same reason?

Without securing any promises of relief, and without reaching any definite understanding with the executive authorities of the Government, the delegation left for their homes in March, 1833. They agreed, however, to lay before their national council in the ensuing May a proposition made to them by the President, offering to pay them $2,500,000 in goods for their lands, with the proviso that they should remove themselves at their own expense.[392] This proposition, it is hardly necessary to remark, was not favorably considered by the council, though the Secretary of War designated[393] Mr. Benjamin F. Curry to attend the meeting and urge its acceptance.

_Alleged attempted bribery of John Ross._--In this connection a story having been given currency that the Government had offered Chief Ross a bribe, provided he would secure the conclusion of a treaty of cession and removal, the Commissioner of Indian Affairs denied it as being "utterly without foundation, and one of those vile expedients that unprincipled men sometimes practice to accomplish an evil purpose," and as being "too incredible to do much injury."[394] While this story was perhaps without solid foundation in fact, its improbability would possibly have been more evident but for the fact that only five years earlier the Secretary of War had appointed secret agents and authorized them to expend $2,000 in bribing the chiefs for this very purpose, and had made his action in this respect a matter of public record.

CHEROKEES PROPOSE AN ADJUSTMENT.

In January, 1834, a few weeks after the assembling of Congress, the Cherokee delegation again arrived in Washington.[395] Sundry interviews and considerable correspondence with the War Department seemed barren of results or even hope. The delegation submitted[396] a proposition for adjustment in another form. Remarking upon their feeble numbers, and surrounded as they were by a nation so powerful as the United States, they could not but clearly see, they said, that their existence and permanent welfare as a people must depend upon that relation which should eventually lead to an amalgamation with the people of the United States. As the prospects of securing this object collectively, in their present location in the character of a territorial or State government, seemed to be seriously opposed and threatened by the States interested in their own aggrandizement, and as the Cherokees had refused, and would never voluntarily consent, to remove west of the Mississippi, the question was propounded whether the Government would enter into an arrangement on the basis of the Cherokees becoming prospectively citizens of the United States, provided the former would cede to the United States a portion of their territory for the use of Georgia; and whether the United States would agree to have the laws and treaties executed and enforced for the effectual protection of the Cherokees on the remainder of their territory for a definite period, with the understanding that upon the expiration of that period the Cherokees were to be subjected to the laws of the States within whose limits they might be, and to take an individual standing as citizens thereof, the same as other free citizens of the United States, with liberty to dispose of their surplus lands in such manner as might be agreed upon.

_Cherokee proposals declined._--The reply[397] to this proposition was that the President did not see the slightest hope of a termination to the embarrassments under which the Cherokees labored except in their removal to the country west of the Mississippi.