The Cherokee Nation of Indians. (1887 N 05 / 1883-1884 (pages 121-378))

This called forth a hurried explanation from the Secretary of War that the instructions to General Scott were not intended to bear the construction placed upon them by the executive of Georgia, but, on the contrary, it was the desire and the determination of the President to secure the removal of the Cherokees at the earliest day practicable, and he made no doubt it could be effected the present season.444

GENERAL SCOTT ORDERED TO COMMAND TROOPS IN THE CHEROKEE COUNTRY.

The executive machinery under the treaty had in the mean time been placed in operation, and at the beginning of the year 1838, 2,103 Cherokees had been removed, of whom 1,282 had been permitted to remove themselves.445

Intelligence having reached the President, however, causing apprehension that the mass of the nation did not intend to remove as required by the treaty General Winfield Scott was ordered446 to assume command of the troops already in the nation, and to collect an increased force, comprising a regiment of artillery, a regiment of infantry, and six companies of dragoons. He was further authorized, if deemed necessary, to call upon the governors of Tennessee, North Carolina, Georgia, and Alabama for militia and volunteers, not exceeding four thousand in number, and to put the Indians in motion for the West at the earliest moment possible, following the expiration of the two years specified in the treaty.

Proclamation of General Scott.—On reaching the scene of operations General Scott issued447 a proclamation to the Cherokees in which he announced that—

The President of the United States has sent me with a powerful army to cause you, in obedience to the treaty of 1835, to join that part of your people who are already established in prosperity on the other side of the Mississippi. Unhappily the two years * * * allowed for that purpose you have suffered to pass away * * * without making any preparation to follow, and now * * * the emigration must be commenced in haste. * * * The full moon of May is already on the wane, and before another shall have passed away every Cherokee, man, woman, and child * * * must be in motion to join their brethren in the far West. * * * This is no sudden determination on the part of the President. * * * I have come to carry out that determination. My troops already occupy many positions, * * * and thousands and thousands are approaching from every quarter to render resistance and escape alike hopeless. * * * Will you then by resistance compel us to resort to arms? * * * Or will you by flight seek to hide yourselves in mountains and forests and thus oblige us to hunt you down? Remember that in pursuit it may be impossible to avoid conflicts. The blood of the white man or the blood of the red man may be spilt, and if spilt, however accidentally, it may be impossible for the discreet and humane among you, or among us, to prevent a general war and carnage.

JOHN ROSS PROPOSES A NEW TREATY.

John Ross, finding no sign of wavering in the determination of the President to promptly execute the treaty, then submitted448 a project for the negotiation of a new treaty as a substitute for that of 1835, and differing but little from it in its proposed provisions, except in the idea of securing a somewhat larger consideration, as well as some minor advantages. He was assured in reply that while the United States were willing to extend every liberality of construction to the terms of the treaty of 1835 and to secure the Cherokee title to the western country by patent, they could not entertain the idea of a new treaty.

As soon as it became absolutely apparent, not only that the Cherokees must go but that no unnecessary delay would be tolerated beyond the limit fixed by the treaty, a more submissive spirit began to be manifested among them. During the summer of 1838 several parties of emigrants were dispatched under the direction of officers of the Army. The number thus removed aggregated about 6,000.449

CHEROKEES PERMITTED TO REMOVE THEMSELVES.

Later in the season John Ross and others, by virtue of a resolution of the national council, submitted a proposition to General Scott that the remainder of the business of emigration should be confided to the nation, and should take place in the following September and October, after the close of the sickly season, the estimated cost of such removal to be fixed at $65.88 per head. To this proposal assent was given,450 and the last party of Cherokee emigrants began their march for the West on the 4th of December, 1838.451 Scattered through the mountains of North Carolina and Tennessee, however, were many who had fled to avoid removal, and who, nearly a year later, were represented to number 1,046,452 and Mr. James Murray was, in the spring of 1840, appointed453 a commissioner to ascertain and enroll for removal those entitled to the benefits of the treaty of 1835.

DISSENSIONS AMONG CHEROKEES IN THEIR NEW HOME.

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

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

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

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

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

Upon the arrival of the emigrants in their new homes, the Ross party insisted upon the adoption of a new system of government and a code of laws for the whole nation. To this the Old Settler party objected, and were supported by the Ridge party, claiming that the government and laws already adopted and in force among the Old Settlers should continue to be binding until the general election should take place in the following October, when the newly elected legislature could enact such changes as wisdom and good policy should dictate.454 A general council of the whole nation was, however, called to meet at the new council-house at Takuttokah, having in view a unification of interests and the pacification of all animosities. The council lasted from the 10th to the 22d of June, but resulted in no agreement. Some six thousand Cherokees were present. A second council was called by John Ross for a similar purpose, to meet at the Illinois camp-ground on the 1st of July, 1839.455

Murder of Boudinot and the Ridges.—Immediately following the adjournment of the Takuttokah council three of the leaders of the Treaty party, John Ridge, Major Ridge his father, and Elias Boudinot were murdered456 in the most brutal and atrocious manner. The excitement throughout the nation became intense. Boudinot was murdered within 300 yards of his house, and only 2 miles distant from the residence of John Ross. The friends of the murdered men were persuaded that the crimes had been committed at the instigation of Ross, as it was well known that the murderers were among his followers. Ross's friends, however, at once rallied to his protection and a volunteer guard of six hundred patrolled the country in the vicinity of his residence.457

A number of the chiefs and prominent men of the Old Settler and Ridge parties fled to Port Gibson for safety. From there on the 28th of June, John Brown, John Looney, John Rogers, and John Smith, signing themselves as the executive council of the Western Cherokees, addressed a proposition to John Ross to send a delegation of the chiefs and principal men of his party with authority to meet an equal number of their own at Fort Gibson, with a view to reach an amicable agreement between the different factions. Ross responded458 by inviting them to meet at the council convened upon his call on the 1st of July, which was declined. A memorial was thereupon459 addressed to the authorities of the United States by Brown, Looney, and Rogers as chiefs of the Western Cherokees, demanding protection in the territory and government guaranteed to them by treaty. Against this appeal the Ross convention or council in session at Illinois camp-ground filed a protest.460 Between the dates of the appeal and the protest a part of the Old Settlers, acting in concert with Ross and his adherents, passed resolutions461 declaratory of their disapproval of the conduct of Brown and Rogers, and proclaimed their deposition from office as chiefs. Looney escaped deposition by transferring his fealty to the Ross party.

Unification of Eastern and Western Cherokees.—It is proper to remark in this connection that on the 12th of July the Ross council adopted resolutions uniting the Eastern and the Western Cherokees "into one body politic under the style and title of the Cherokee Nation." This paper, without mentioning or referring to the treaty of 1835, speaks of the late emigration as constrained by the force of circumstances. The council also passed462 a decree, wherein after reciting the murders of the Ridges and Boudinot, and that they in conjunction with others had by their conduct rendered themselves liable to the penalties of outlawry, extended to the survivors a full amnesty for past offenses upon sundry very stringent and humiliating conditions. They also passed463 a decree condoning the crime of the murderers, securing them from any prosecution or punishment by reason thereof, and declaring them fully restored to the confidence and favor of the community.

Treaty of 1835 declared void.—At a council held at Aquohee Camp a decree was passed on the 1st of August, declaring the treaty of 1835 void, and reasserting the Cherokee title to their old country east of the Mississippi. Later in the same month a decree was passed,464 citing the appearance before them, under penalty of outlawry, of the signers of the treaty of 1835, to answer for their conduct. This act called forth465 a vigorous protest from General Arbuckle, commanding Fort Gibson, and was supplemented by instructions466 to him from the Secretary of War to cause the arrest and trial of Ross as accessory to the murder of the Ridges in case he should deem it wise to do so.

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

Division of Cherokee territory proposed.—A proposition had been previously467 submitted by the representatives of the Treaty and Old Settler parties, urging as the only method of securing peace the division of the Cherokee domain and annuities. They recommended that General Arbuckle and Captain Armstrong be designated to assign to them and to the Ross party each their proportionate share according to their numbers, but the adoption of this act of union avoided any necessity for the further consideration of the proposal. As a means also of relieving the Cherokees from further internal strife, General Arbuckle had,468 pursuant to the direction of the Secretary of War, notified them that, in consequence of his public acts, John Ross would not be allowed to hold office in the nation, and that a similar penalty was denounced against William S. Coody for offensive opinions expressed in the presence of the Secretary of War.469 Little practical effect was however produced upon the standing or influence of these men with their people.

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

CHEROKEES CHARGE THE UNITED STATES WITH BAD FAITH.

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

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

President Tyler promises a new treaty.—Accordingly, therefore, in the fall of 1841, just previous to the departure of the Cherokee delegation from Washington to their homes, the President agreed to take proper measures for the settlement of all their difficulties, expressing a determination to open the whole subject of their complaints and to bring their affairs to a satisfactory conclusion through the medium of a new treaty. In conformity with this determination the Commissioner of Indian Affairs471 instructed the agent for the Cherokees to procure all the information possible to be obtained upon every subject connected with Cherokee affairs having a tendency to throw any light upon the wrongs and injustice they might have sustained to the end that full amends could so far as possible be made therefor. Before much information was collected under the terms of these instructions a change seems to have taken place in the views of the President, and the order for investigation was revoked. The draft of the new treaty was, however, in the mean time prepared under direction of the Secretary of War. It contained provisions regulating the licensing of traders in the Cherokee country, the jurisdiction over crimes committed by citizens of the United States resident in that country, the allotment of their lands in severalty by the Cherokee authorities, and the establishment of post-offices and post-routes within their limits. It further contemplated the appointment of two commissioners, whenever Congress should make provision therefor, whose duty it should be to examine into and make a report to that body upon the character, validity, and equity of all claims of whatsoever kind presented by Cherokees against the United States, and also to afford the Cherokees pecuniary aid in the purchase of a printing press and type as well as in the erection of a national council-house. This treaty, however, was never consummated.

President Jackson's method for compelling Cherokee removal.—In connection with this subject of an investigation into the affairs of the Cherokees, a confidential letter is to be found on file in the office of the Commissioner of Indian Affairs, from Hon. P. M. Butler, of South Carolina, who had a few months previous to its date472 been appointed United States agent for the Cherokees, interesting as throwing light on the negotiation and conclusion of the treaty of 1835. Mr. Butler says it is alleged, and claimed to be susceptible of proof, that Mr. Merriweather, of Georgia, in an interview with President Jackson, a considerable time before the treaty was negotiated, said to the President, "We want the Cherokee lands in Georgia, but the Cherokees will not consent to cede them," to which the President emphatically replied, "You must get clear of them [the Cherokees] by legislation. Take judicial jurisdiction over their country; build fires around them, and do indirectly what you cannot effect directly."

PER CAPITA PAYMENTS UNDER THE TREATY.

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

POLITICAL MURDERS IN CHEROKEE NATION.

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

ADJUDICATION COMMISSIONERS APPOINTED.

In the autumn of 1842473 the President appointed John H. Eaton and James Iredell as commissioners to adjudicate and settle claims under the treaty of 1835. Mr. Iredell declined, and Edward B. Hubley was appointed474 to fill his place. This tribunal was created to continue the uncompleted work of the board appointed in 1836 under the provisions of the same article, the labors of which had terminated in March, 1839, having been in session more than two years.

TREATY CONCLUDED AUGUST 6, 1846; PROCLAIMED AUGUST 17, 1846.475

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

MATERIAL PROVISIONS.

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

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

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

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

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

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

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

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

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

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

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

11. It is agreed that the Senate of the United States shall determine whether the amount expended for one year's subsistence of the Cherokees, after their removal under the treaty of 1835 and supplement of 1836, is properly chargeable to the United States or to the Cherokee funds, and, if to the latter, whether such subsistence shall be charged at a sum greater than $33¹/₃ per head; also, whether the Cherokees shall be allowed interest upon the sums found to be due them; and, if so, from what date and at what rate.

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

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

HISTORICAL DATA.

CHEROKEES DESIRE A NEW TREATY.

In the spring of 1844 a delegation headed by John Ross arrived in Washington. In a communication476 to the Secretary of War they inclosed a copy of a letter addressed to them by President Tyler on the 20th of September, 1841, previously alluded to, promising them a new treaty to settle all disputes arising under the treaty of 1835. They advised the Secretary of their readiness to enter upon the negotiation of the promised treaty, and submitted477 a statement of the salient points of difference to be adjudicated, involving (1) a fair and just indemnity to be paid to the Cherokee Nation for the country east of the Mississippi from which they were forced to remove; (2) indemnity for all improvements, ferries, turnpike roads, bridges, etc., belonging to the Cherokees; (3) indemnity for spoliations committed upon all other Cherokee property by troops and citizens of the United States prior and subsequent to the treaty of 1835; (4) that a title in absolute fee-simple to the country west of the Mississippi be conveyed to the Cherokee Nation by the United States; (5) that the political relations between the Cherokee Nation and the United States be specifically defined; (6) that stocks now invested by the President for the Cherokee Nation be guaranteed to yield a specified annual income, and (7) that provision be made for those Cherokees residing east of the Mississippi who should evince a desire to emigrate to the Cherokee country west of that river.

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

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

Commissioners appointed to inquire into Cherokee feuds.—In consequence of his determination, as above stated, the President appointed General R. Jones, Col. R. B. Mason, and P. M. Butler commissioners, with instructions479 to proceed to the Cherokee country and ascertain if any considerable portion of the Cherokee people were arrayed in hostile feeling toward those who ruled the nation; whether a corresponding disposition and feeling prevailed among the majority who administered the government toward the minority; the lengths of oppression, resistance, and violence to which the excitement of each against the other had severally led the opposing parties, and whether the discontent was of such extent and intensity among the great mass of the Old Settler and Treaty parties as to forbid their living peaceably together under the same government with the Ross party. This commission convened at Fort Gibson on the 16th of November,480 but their labors resulted in nothing of practical benefit to the sorely distressed Cherokees.

DEATH OF SEQUOYAH OR GEORGE GUESS.

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

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

He did not meet with the success anticipated. Being quite aged, and becoming worn out and destitute, he was unable without assistance to make the return trip to his home. Agent Butler, learning of his condition, reported the fact to the Indian Department482 and asked that sufficient funds be placed at his disposal for the purpose of sending messengers to bring the old man back. Two hundred dollars were authorized483 to be expended for the purpose, and Oo-no-leh, a Cherokee, was sent on the errand of mercy, but upon reaching Red River he encountered a party of Cherokees from Mexico who advised him that Guess had died in the preceding July, and that his remains were interred at San Fernando.484

OLD SETTLER AND TREATY PARTIES PROPOSE TO REMOVE TO MEXICO.

In the fall of 1845 the bulk of the Old Settler and Treaty parties, having become satisfied that it would be impossible for them to maintain a peaceful and happy residence in the country of their adoption while the influence of John Ross continued potent in their national government, resolved to seek for themselves a new home on the borders of Mexico. A council was therefore held at which a delegation (consisting of forty-three members of the Treaty and eleven of the Old Settler party) was chosen to explore the country to the south and west for a future abode. They rendezvoused485 at the forks of the Canadian and Arkansas Rivers, and, after electing a captain, proceeded via Fort Washita, crossing the Red River at Coffee's trading house, and following the ridge dividing the waters of Trinity and Brazos to the latter river, which they crossed at Basky Creek. Here they found a small settlement of sixty-three Cherokees, who had moved in the preceding June from a place called by them Mount Clover, in Mexico.

Among their number was found Tessee Guess, the son of George Guess. Leaving Brazos486 the explorers traveled westward to the Colorado, reaching it at the mouth of Stone Fort Creek,487 beyond which they proceeded in a southwesterly direction to the San Sabba Creek, at a point about 40 or 50 miles above its mouth. They returned on a line some 60 miles south of their outgoing trip,488 and with their friends held a council at Dragoon Barracks in the Cherokee Nation.489 At this meeting it was decided to ask the United States to provide them a home in the Texas country upon their relinquishment of all interest in the Cherokee Nation, or in case of a refusal of this request that the territory of the nation be divided into two parts, and a moiety thereof be assigned to them with the privilege of adopting their own form of government and living under it.

The governor of Arkansas490 and General Arbuckle491 both concurred in the conclusions reached by this council, and urged upon the authorities at Washington the necessary legislation to carry the same into effect.

MORE POLITICAL MURDERS.

Shortly after the delegation selected by the foregoing council had proceeded to Washington in the interest of the adoption of the scheme proposed, another epidemic of murder and outrage broke out in the nation. On the 23d of March, Agent McKissick reported to the Indian Department the murder of Stand, a prominent member of the Ross party, by Wheeler Faught, at the instigation of the "Starr boys," who were somewhat noted leaders of the Treaty party. This murder was committed in revenge for the killing of James Starr and others during the outbreak of the preceding November. It was followed492 by the murder of Cornsilk, another of Ross's adherents, by these same "Starr boys," and six days later the spirit of retaliation led to the killing of Turner, a member of the Treaty party. On the 25th of the same month493 Ellis, Dick, and Billy Starr were wounded by a band of Ross's Cherokee police, who chased them across the line of Arkansas in the attempt to arrest them for trial before the Cherokee tribunals for the murder of Too-noo-wee two days before. General Arbuckle took them under his protection, and refused to deliver them up for trial to the Cherokee authorities until the latter should take proper steps to punish the murderers of James Starr. Subsequently Baldridge and Sides, of the Ross party, were murdered by Jim and Tom Starr, in revenge for which the light horse police company of the Ross government murdered Billy Ryder, of the Treaty party.494

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

NEGOTIATION OF TREATY OF 1846.

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

The Commissioner replied that as the matter was before Congress and would likely receive the speedy attention of that body, no action would be justified by the executive authorities without first being assured that the proposition was founded in good faith and would result in some certain and satisfactory arrangement. He must also have assurance that there existed a firm determination on the part of the Department and of Congress to bring these troubles to a close before the adjournment of the latter body. The Commissioner, however, drew up a memorandum agreement for the signature of the several delegations of Cherokees representing the different factions of the tribe. It provided for the appointment of three commissioners, whose duty it should be to examine into all matters in controversy and adjust the same, and that all parties should abide absolutely by their decision, agreeing to execute and sign such treaty or other instrument of agreement as should be considered necessary to insure the execution of the award of the commissioners.495 This agreement was duly signed by the members of the several delegations present in Washington, and in pursuance of its provisions President Polk appointed496 Edmund Burke, William Armstrong, and Albion K. Parris commissioners with the powers and for the purposes above indicated. These commissioners at once entered into communication and negotiation with the three delegations representing the different factions of the Cherokee Nation, which were then in Washington, and the result was the conclusion of the treaty of August 6, 1846,497 in thirteen articles, making detailed provision for the adjustment of all questions of dispute between the Cherokees themselves and also for the settlement of all claims by the Cherokees against the United States.498 This treaty, with some slight amendments, was ratified and proclaimed by the President on the 17th of the same month; an abstract of its provisions has already been presented. It was not until this treaty that the Ross party ever consented in any manner to recognize or be bound by the treaty of 1835.499

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

Adjudication of the treaty of 1835.—In order, therefore, to carry out the principle thus established by the treaty of 1846, Congress, by joint resolution, of August 7, 1848,503 required the proper accounting officers of the Treasury to make a just and fair statement of account with the Cherokee Nation upon that basis. The joint report of the Second Comptroller and Second Auditor was submitted to Congress504 after a full and thorough examination of all the accounts and vouchers of the several officers and agents of the United States who had disbursed funds appropriated to carry into effect the treaty of 1835, and also of all claims that had been admitted at the Treasury.

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

They also reported that there was a further sum of $96,999.31, charged to the general treaty fund, which had been paid to the various agents of the Government connected with the removal of the Indians and which the Cherokees contended was an improper charge upon their fund. The facts as to this item were submitted by the Auditor and Comptroller without recommendation for the decision of the question by Congress, and Congress, admitting the justice of the Cherokee claim, included this sum in the subsequent appropriation of February 27, 1851.505

It was also resolved506 by the United States Senate (as umpire under the treaty of 1846) that the Cherokee Nation was entitled to the sum of $189,422.76 for subsistence, being the difference between the amount allowed by act of June 12, 1838, and the amount actually paid and expended by the United States, and which excess was improperly charged to the treaty fund in the report of the accounting officers of the Treasury just recited. It was further resolved that interest at 5 per cent. should be allowed upon the sums found due the Eastern and Western Cherokees respectively from June 12, 1838. The amount of this award was made available to the Cherokees by Congressional appropriation of September 30, 1850.507

Settlement of claims of "Old Settler" party.—By the fourth and fifth articles of the treaty of 1846,508 provision is made and a basis fixed for the settlement with that part of the Cherokee Nation known as "Old Settlers" or "Western Cherokees," or, in other words, those who had emigrated under the treaties of 1817,509 1819,510 and 1828,511 and who were, at the date of the treaty of 1835,512 an organized and separate nation of Indians, whom the United States had recognized as such by the treaties of 1828 and 1833513 made with them. In making the treaty of 1835 with the Cherokees east, which provided for their final and complete transfer to the country west, then occupied by the "Western Cherokees," and guaranteed in perpetuity by two treaties, upon considerations alone connected with them, the rights of the latter seem to have been forgotten. The consequences of the influx of the Eastern Cherokees were such that upon their arrival the "Old Settlers" were thrown into a hopeless minority; their government was subverted, and a new one, imported with the emigrants coerced under the treaty of 1835, substituted in its place.

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

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

For many years this additional claim of the "Old Settlers" practically lay dormant. But toward the close516 of the year 1875 they held a convention or council at Tahlequah, the capital of the Cherokee Nation, and resolved to prosecute their claim to a "speedy, just, and final settlement." To that end three of their people were appointed commissioners with full power to prosecute the claim, employ counsel, and to do all other necessary and proper things in the premises. The council set apart and appropriated 35 per centum of whatever should be collected to defray all the necessary expenses attendant upon such prosecution and collection. Several subsequent councils have been held about the subject,517 and the matter continued to be pressed upon the attention of Congress until, by the terms of an act approved August 7, 1882,518 that body directed the Secretary of the Interior to investigate this and other matters relating to the Cherokees and to report thereon to Congress. Pursuant to the purpose of this enactment, Mr. C. C. Clements was appointed a special agent of the Interior Department with instructions to make the required investigation. He submitted three reports on the subject, the latter two being supplemental to and corrective of the first. From this last report519 it appears that he finds the sum of $421,653.68 to be due to the "Old Settler" Cherokees, together with interest at 5 per cent. per annum from September 22, 1851. In brief his findings are—

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

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

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

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

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

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

7. In the settlement, the $5,600,000 fund was charged with the removal and subsistence of 18,026 Indians at $53.33¹/₃ per head, amounting to $961,386.66.520

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

Other questions under the treaty of 1835.—There were two other questions about which the parties could not agree, and upon which, by the eleventh article of the treaty of 1846, the Senate of the United States was designated as the umpire. The first of these was whether the amount expended for the one year's subsistence of the Eastern Cherokees, after their arrival in the West, should be borne by the United States or by the Cherokee funds, and, if by the latter, then whether subsistence should be charged at a greater rate than $33¹/₃ per head.

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

On the other hand, among the circumstances establishing the propriety of a contrary construction may be mentioned the language of the eighth article of the treaty, that "the United States also agree and stipulate to remove the Cherokees to their new homes and to subsist them one year after their arrival there." This language imports pecuniary responsibility rather than a simple disbursement of a trust fund. In the "talk" also which was sent521 by President Jackson to the Indians to explain the advantages of the proposed treaty, he mentioned that the stipulations offered "provide for the removal at the expense of the United States of your whole people, and for their subsistence a year after their arrival in their new country."

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

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

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

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

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

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

The item of $189,422.76 was appropriated, as previously stated, by the act of September 30, 1850, and that of $724,603.37 by the act of February 27, 1851. Interest was allowed on each sum at the rate of 5 per cent. per annum from the date of the act of June 12, 1838, with the understanding that it should be in full satisfaction and a final settlement of all claims and demands whatsoever of the Cherokee Nation against the United States under any treaty theretofore made with them. Instructions were issued526 in the fall of 1851 to John Drennan, superintendent of Indian affairs, to proceed without delay to make the payment. For this purpose a remittance was made to him at New Orleans of the sums of $1,032,182.33 and $276,179.84. The first of these sums, he was advised by his instructions, was intended for the per capita payment, principal and interest, to the Eastern Cherokees, or Ross party, in pursuance of the act of February 27, 1851. The latter was for a similar payment to the same parties in compliance with the terms of the act of September 30, 1850, previously mentioned. These sums were to be distributed, according to the census roll, among 14,098 Cherokees within his superintendency, and were exclusive of the pro rata share to which those Cherokees east of the Mississippi living within the States of North Carolina, Georgia, Tennessee, and Alabama were entitled. For the payment of the latter a clerk was detailed from duty in the Office of Indian Affairs to act in the capacity of a special disbursing agent.

The payments made by Superintendent Drennan, coupled with the conditions prescribed by the act of Congress, were very unsatisfactory to the Government or Ross party of Cherokees. Therefore their national council addressed527 to the United States a solemn and formal protest against the injustice they had suffered through the treaties of 1835 and 1846, and the statement of account rendered by the United States under the provisions of those treaties.528 After thus placing themselves on record, the Cherokees accepted the money and complied with the conditions prescribed in the act of Congress.

AFFAIRS OF THE NORTH CAROLINA CHEROKEES.

As has been already remarked, at the time of the general removal of the Cherokee Nation in 1838 many individuals fled to the mountains of Tennessee and North Carolina and refused to emigrate. They always maintained their right to an equal participation in the personal benefits provided in the treaty of 1835, which, though not denied, was held by the executive authorities of the United States to be conditional upon their removal west. At length by an act of Congress approved July 29, 1848,531 provision was made for causing a census to be taken of all those Cherokees who remained in the State of North Carolina after the ratification of the treaty of 1835 and who had not since removed west. An appropriation was made equal to $53.33¹/₃ for each of such individuals or his or her representative, with interest at 6 per cent per annum from the 23d of May, 1836. Furthermore, whenever any of such individuals should manifest a desire to remove and join the tribe west of the Mississippi, the Secretary of War was authorized to expend their pro rata share of the foregoing fund, or so much thereof as should be necessary, toward defraying the expense of such removal and subsistence for one year thereafter, the balance, if any, to be paid to the individual entitled. The amount of this appropriation, it was stipulated, should be refunded to the United States Treasury from the general fund of the Cherokee Nation under the treaty of 1835. The census mentioned was taken by J. C. Mullay in 1849, and the number found to be entitled to the benefits of the appropriation was 1,517,532 which by additions was increased to 2,133. Under the appropriation acts of September 30, 1850, and February 27, 1851, these Cherokees remaining east of the Mississippi were entitled to their pro rata share of the amounts thus appropriated. Alfred Chapman was accordingly detailed529 from the Interior Department to make the per capita payment, and was furnished with the amounts of $41,367.31 and $156,167.19 under those respective acts. He was directed to base his payments upon the census roll furnished him, which showed 2,133 Indians to be entitled. By section 3 of an act approved March 3, 1855,530 provision was made for the distribution per capita among the North Carolina Cherokees on the Mullay roll533 of the fund established by the act of July 29, 1848, provided that each Indian so receiving such payment in full should assent thereto. As a further condition to the execution of this act it was stipulated that satisfactory assurance should be given by the State of North Carolina, before such payment, that the Cherokees in question should be permitted to remain permanently in that State. The desired legislative assurance was not given by North Carolina until February 19, 1866, and the money was not, therefore, distributed, but carried to the surplus fund in the Treasury. Afterwards, by act of March 3, 1875,534 it was made applicable to the purchase and payment of lands, expenses in quieting titles, etc.