Boundaries and area.—Governor Miller reported, in connection with this subject, that the Arkansas Cherokees were very restless and dissatisfied. They complained much in that, as they said, no part of the treaty of 1819 had been complied with by the United States and in that they had received no annuity money since their removal to the west of the Mississippi River. Furthermore, their boundaries had not been established, and they still awaited the fulfillment of the promise made them for an extension of their line to the west as far as the Osage line. To this latter scheme the Osages were much opposed, preferring rather to have the country occupied by whites. The adjustment of this boundary question would seem to have been very desirable, inasmuch as nearly one-half of the Cherokees had taken up their abode south of the Arkansas River,310 which was clearly outside of their proper limits. It formed the subject of much correspondence and complaint throughout several years, and was the occasion of a number of visits of representative delegations from the Arkansas Cherokees to Washington. The eastern boundary had, as already stated, been run by General Rector in 1818—'19, but the difficulty in fixing the western line arose from the fact that the quantity of land to which the Cherokees were entitled was to be measured by the area already ceded by them to the United States by the treaties of 1817 and 1819. The ascertainment of this latter quantity with exactness could not be made in advance of the completion of the surveys thereof by the States of North Carolina, Tennessee, and Georgia. From such reports and estimates as the United States were able to secure from the several State authorities, it was estimated, early in 1823,311 that the quantity to which the Cherokees were entitled was about 3,285,710 acres, and they were informed that measures would at once be taken to have the western boundary established. This was performed under direction of Governor Miller, in compliance with instructions given him for that purpose on the 4th of March, 1823. A year later312 a delegation of the Indians visited Washington to complain that the boundary had been run without notice to them and in such a manner as to be highly prejudicial to their interests. It was also urged that the quantity of land included was largely less than the quantity ceded by the Cherokees east of the Mississippi.
It would seem that in the survey of this western boundary Governor Miller, through a misconception of his instructions, had caused the line to be run due north, and south, instead of in a direction parallel with that of the east line, as was the evident intention of the treaty of 1817.313 The effect of this action was to largely curtail the Cherokee frontage on Arkansas River, where the lands were rich and capable of remunerative cultivation, and to extend their frontier on the Upper White River, toward the rough and comparatively valueless region of the Ozark Mountains. It was also admitted by the Secretary of War that the quantity of land within these boundaries was probably less than that to which the Cherokees were entitled.314 Inquiries were accordingly again made of the several State authorities as to the area of territory acquired by them through the treaties of 1817 and 1819, the replies to which, though partially estimated, aggregated 4,282,216 acres.315 Directions were therefore given to Agent Duval316 to propose to the Indians the running of a provisional line, subject to such future alterations as the official returns of the quantity ceded in the States should render necessary and proper. It seems, however, from a report of Agent Duval, that the Cherokees in council had expressed to him a preference to adopt for their western boundary what was known as the "upper" or Governor Miller line, and to run thence down and between the Arkansas and White Rivers for quantity, ignoring the line run under the treaty of 1817 by General Rector, the effect of which would be to give them an extension of territory to the east instead of toward the west. This proposition called forth directions from the Secretary of War to Governor Izard, in the spring of 1825, to open negotiations with the Cherokees upon the subject of an exchange of territory with them for an equal quantity of land lying to the west of Arkansas and Missouri, and for their removal thereto, but that the matter must not be pressed to the point of irritation. If, through the aversion of the Indians to entertain such a proposition, it should be dropped, then, if ±he same should be satisfactory to the citizens of Arkansas, the proposal contained in the report of Agent Duval would meet the views of the Government.317
The Indians were brought to no definite agreement to either of these propositions. In the meantime their provisional western boundary was established and run, in January and February, 1825.318 The line began at the upper end of Table Rock Bluff, on the Arkansas River, and ran north 1 mile and 70 chains, crossing Skin Bayou at a distance of 66 chains from the beginning; thence it ran north 53° east 132 miles and 31 chains, to White River, which it struck at a point opposite the mouth of Little North Fork.
As a matter of fact, so strong was the prejudice of the Cherokees against any concession of territory that their council passed319 what they denominated a "perpetual law" denouncing the death penalty against any of their nation who should propose the sale or exchange of their lands.
Lovely's purchase.—In the mean time the legislature of Arkansas, through Acting Governor Crittenden, had forwarded to the President in the summer of 1824, a memorial urging that the tract of country known as "Lovely's purchase" be thrown open to white settlement by a revocation of the prohibitory order of December 15, 1818. This the President declined to do until a final adjustment should be made of the west boundary of the Cherokees and the east boundary of the Choctaws. A history of "Lovely's purchase" is to be found in a letter dated January 30, 1818, from Major Long, of the Topographical Engineers, to General Thomas A. Smith. From this it seems that by a treaty then recently made (but without any authority) with the Osages, "by Mr. Lovely, late Indian agent,"320 that tribe had ceded to the United States the country between the Arkansas and Red Rivers, and also a tract on the north of the Arkansas situated between the Verdigris River and the boundary established by the Osage treaty of 1808. It appears, however, that it was not the intention of the Osages to cede to the United States so large a tract on the north of the Arkansas, but, as afterwards alleged by their chiefs, they only desired to surrender the country lying south of a line commencing at the Falls of the Verdigris and running due east to the treaty line of 1808, and east of another line beginning at the same place and running due south as far as their possessions should extend, and thence east again to the 1808 boundary, excepting and reserving therefrom the point of land between the Verdigris and Six Bulls or Grand River. The Osages, never having been informed that the treaty was not duly authorized and had not been confirmed, still considered the country described therein as belonging to the United States, and had repeatedly solicited whites to settle on it, alleging that the main object of the cession on their part was to secure the convenient approach of civilized neighbors, who should instruct the men how to cultivate the ground and the women to spin and weave, that they might be able to live when the forests should afford no further supplies of game. They were therefore much irritated when they found civilized settlements prohibited, in order to protect the introduction and establishment adjoining or upon this territory of their inveterate enemies, the Cherokees.
Western outlet.—The indefinite outlet to the west which had been promised the Cherokees by the President in 1818 formed the subject of much complaint by them from time to time. In the spring of 1823321 they were advised that until their western boundary was established it would be improper to make any decision upon the "outlet" question. Two years earlier322 it had been declared to them that in removing settlers from "Lovely's Purchase," for the purpose of giving them their western outlet, it must always be understood that they thereby acquired no right to the soil, and that the Government reserved to itself the right of making such disposition as it might think proper of all salt springs therein. But this troublous question was definitively disposed of when the treaty of 1828 came to be negotiated.
By the provisions of an act of Congress approved April 5, 1826,323 the land districts of the Territory of Arkansas were extended so as to include all the country within the limits of that Territory as then existing (the limits having been extended 40 miles to the west by act of Congress of May 26, 1824),324 with the proviso, however, that nothing in the act should be so construed as to authorize any survey or interference whatever upon any lands the right whereof resided in any Indian tribes. Notwithstanding this proviso, reports became current that surveys had been begun of "Lovely's Purchase," causing much irritation and ill feeling among the Cherokees and eliciting an order325 from the Secretary of War forbidding any further surveys until it should be finally ascertained how much land the Cherokees were entitled to receive from the United States in pursuance of the treaties of 1817 and 1819.
Negotiation and conclusion of treaty of 1828.—Matters remained thus in statu quo until the spring of 1828, when a delegation of the Western Cherokees arrived in Washington, clothed with authority to present to the attention of the President their numerous grievances and to adjust all matters in dispute for their people. The burden of their complaints had relation to the delays that had occurred in fixing their boundaries; to the failure to secure to them the promised "western outlet;" to the adjustment of the hostilities that continued to exist between themselves and the Osages; and to the irregularity in the receipt of their annuities, as well as to the encroachments of white settlers.326
The delegation were not clothed with authority to negotiate for any cession or exchange of territory, the "perpetual law" against entertaining such a proposition being still in force among them. Notwithstanding this fact, a communication was addressed to them from the War Department327 desiring to be advised if they had any objection to opening negotiations upon a basis of an exchange of land for territory west of the west boundary of Arkansas, provided that boundary should be removed a distance of 40 miles to the east, so as to run from Fort Smith to the southwest corner of the State of Missouri, and also that the Creeks should be removed from their location above the Falls of Verdigris River to territory within the forks of the Canadian and Arkansas Rivers. To this proposal the delegation returned a polite but determined refusal, and demanded that the actual number of acres to which they were entitled in Arkansas be ascertained and laid off with exact definiteness. The whole subject of an exchange of lands was thereupon submitted by the Secretary of War to the President for his direction, and it was announced328 to the visiting delegation that the President had concluded to order a permanent western line to be run, within which should be embraced the full quantity of land to which they were entitled, and which was found to be, as nearly as possible, as follows:329
| Acres | |
| In lieu of quantity ceded in Georgia(actual survey) | 824,384 |
| In lieu of quantity ceded in Alabama(actual survey) | 738,560 |
| In lieu of quantity ceded in Tennessee (actual survey) | 1,024,000 |
| In lieu of quantity ceded in North Carolina (survey 70,000, estimate 630,000) | 700,000 |
| ________ | |
| 3,286,944 | |
| Less 12 miles square, school reservation in Alabama | 92,160 |
| ________ | |
| 3,194,784 |
As to their promised "western outlet," the President was unprepared to say anything definite, inasmuch as that matter was then in the hands of Congress.
From this showing it was made evident to the delegation, and no opportunity was lost to impress the fact strongly upon them, that if they insisted upon refusing to arrange for an exchange of lands, instead of being entitled to a large additional tract beyond their provisional western boundary, they would, in fact, be entitled to several hundred thousand acres less than had already been placed in their possession. In addition to this it was more than doubtful, from the temper of the President and Congress, whether their long anticipated "western outlet" would ever crystallize into anything more tangible than a promise. With these facts staring them in the face, with the alluring offers held out to them of double the quantity of land possessed by them in Arkansas in exchange, with liberal promises of assistance in their proposed new homes, and with the persistent importunities of their agent and other United States officials, they yielded, and the treaty of May 6, 1828,330 an abstract of which has been already given, was the result. It was promptly ratified and proclaimed on the 28th of the same month.
So nervous were the members of the delegation, after the treaty had been concluded and signed, as to the reception that would greet them on their return home, that the Secretary of War felt the necessity of giving them a letter of explanation to their people. In this letter the Cherokees were advised of the integrity, good conduct, and earnest zeal for the welfare of their nation that had invariably characterized the actions of their delegation at Washington. The nation was assured that their representatives had done the best thing possible for them to do in the late treaty.331
Notwithstanding this testimonial, the delegation met with an angry reception on their return home. Their lives and property were unsafe; the national council pronounced them guilty of fraud and deception, declared the treaty to be null and void, as having been made without any authority, and expressed an earnest desire to send a delegation to Washington clothed with power to arrange all differences.332
In the mean time Agent Duval had been advised333 of the ratification of the treaty, and Messrs. R. Ellis and A. Finney had been appointed, in conjunction with him, as commissioners to value all improvements and property abandoned by the Cherokees, and to sell the agency property as a means of raising funds for the erection of mills in their new country.
Survey of new boundaries.—The eastern line of this new Cherokee country, dividing it from Arkansas, was surveyed in 1829,334 but it was not until April 13, 1831, that instructions were given to Isaac McCoy to survey the remaining boundaries.
The fourth article of the treaty of 1828 contained a provision requiring the United States to sell the property and improvements connected with the agency for the erection of a grist and saw mill for the use of the Indians in their new home. In lieu of this grist and saw mill the United States furnished them with patent corn-mills to the amount of the appraised value of the improvements. A tract in townships 7 and 8 of range 21, including these agency improvements, was surveyed separately in 1829, and was commonly known as the "Cherokee Agency Reservation." In after years the Cherokees claimed that they had never been compensated for this so-called reserve and asserted that it still belonged to them. After a dispute continuing through many years, it was finally decided by the Secretary of the Interior, on the 28th of June, 1878, that the reserve did not belong to the Cherokees, but that, through the operation of the treaty with them, it became a part of the public domain.
Held at Fort Gibson, on the Arkansas River, between Montfort Stokes, Henry L. Ellsworth, and John F. Schermerhorn, commissioners on the part of the United States, and the chiefs and headmen of the Cherokee Nation of Indians west of the Mississippi.
It having been ascertained that the territory assigned to the Cherokees by the treaty of May 6, 1828, conflicted with a portion of the territory selected by the Creek Nation in conformity with the provisions of the Creek treaty of January 24, 1826, and the representative men of those two nations having met each other in council and adjusted all disputes as to boundaries, the United States, in order to confirm this adjustment, concluded the following articles of treaty and agreement with the Cherokees:
1. The United States agree to possess the Cherokees, and to guarantee it to them forever, * * * of seven millions of acres of land, to be bounded as follows, viz: Beginning at a point on the old western Territorial line of Arkansas Territory, being twenty-five miles north from the point where the Territorial line crosses Arkansas River; thence running from said north point south on the said Territorial line to the place where said Territorial line crosses the Verdigris River; thence down said Verdigris River to the Arkansas River; thence down said Arkansas River to a point where a stone is placed opposite to the east or lower bank of Grand River at its junction with the Arkansas; thence running south forty-four degrees west one mile; thence in a straight line to a point four miles northerly from the mouth of the North Fork of the Canadian; thence along the said four miles line to the Canadian; thence down the Canadian to the Arkansas; thence down the Arkansas to that point on the Arkansas where the eastern Choctaw boundary strikes said river, and running thence with the western line of Arkansas Territory, as now defined, to the southwest corner of Missouri; thence along the western Missouri line to the land assigned to the Senecas; thence on the south line of the Senecas to Grand River; thence up said Grand River as far as the south line of the Osage Reservation, extended if necessary; thence up and between said south Osage line, extended west if necessary, and a line drawn due west from the point of beginning, to a certain distance west at which a line running north and south from said Osage line to said due-west line will make seven millions of acres within the whole described boundaries.
In addition to the seven millions of acres of land thus provided for and bounded, the United States further guarantee to the Cherokee Nation a perpetual outlet west, and a free and unmolested use of all the country lying west of the western boundary of said seven millions of acres, as far as the sovereignty of the United States and their right of soil extend: Provided, however, That if the saline or salt plain on the great western prairie shall fall within said limits prescribed for said outlet, the right is reserved to the United States to permit other tribes of red men to get salt on said plain in common with the Cherokees. And letters patent shall be issued by the United States as soon as practicable for the land hereby guaranteed.
2. The Cherokees relinquish to the United States all claim to all land ceded or claimed to have been ceded to them by treaty of May 6, 1828, not embraced within the limits fixed in this present supplementary treaty.
3. The United States agree to cancel, at the request of the Cherokees, the sixth article of the treaty of May 6, 1828.
4. The United States agree to furnish the Cherokees, during the pleasure of the President, four blacksmith's shops, one wagon-maker's shop, one wheelwright's shop, and necessary tools, implements, and material for the same; also four blacksmiths, one wagon-maker, and one wheelwright; also eight patent railway corn-mills, in lieu of those agreed to be furnished by article 4 of the treaty of May 6, 1828.
5. These articles are supplementary to the treaty of May 6, 1828.
6. One mile square to be set apart for the accommodation of the Cherokee Agency, to be selected jointly by the Cherokee Nation and United States agent.
7. This treaty to be obligatory after ratification by the President and Senate.
The treaty of January 24, 1826,336 with the Creek Indians had provided for the removal of that tribe west of the Mississippi. In accordance with its provisions, a delegation consisting of five representative men of the tribe proceeded to the western country and selected the territory designed for their future occupancy. The year following this selection a party of Creeks removed to and settled thereon. The country thus selected and occupied lay along and between the Verdigris, Arkansas, and Canadian Rivers.337
Subsequently, on the 6th day of May, 1828,338 a treaty was concluded with the Cherokee Nation west of the Mississippi, by the terms of which they ceded all their lands within the present limits of Arkansas and accepted a tract of 7,000,000 acres within the present limits of Indian Territory, in addition to a perpetual outlet extending as far west as the western limits of the United States at that time, being the one hundredth meridian of longitude west from Greenwich.
This new assignment of territory to the Cherokees, it was soon found, included a considerable portion of the lands selected by and already in the possession of the Creeks.
The discovery of this fact produced much excitement and ill feeling in the minds of the people of both tribes, and led to many acts of injustice and violence during the course of several years.
Territorial difficulties adjusted.—In the year 1832 a commission was constituted, consisting of Montfort Stokes, Henry L. Ellsworth, and John F. Schermerhorn, with instructions to visit the country west of the Mississippi and to report fully all information relating to the country assigned as a permanent home to the aborigines. Among the formidable difficulties presented for and earnestly urged upon their attention and consideration were these conflicting territorial claims of the Creeks and the Cherokees. Both parties claimed several million acres of the same land under treaty stipulations; both were equally persuaded of the justice of their respective claims, and at first were unyielding in their dispositions.
After a protracted public council, however, in which a careful examination and exposition of the various treaties was made, the commissioners succeeded in inducing the Creeks to accept other lands to the southward of their upper settlements on Verdigris River,339 and concluded treaties with both the Creeks and the Cherokees modifying their respective boundaries.
This treaty of February 14, 1833, with the latter tribe occasioned a material change in the boundaries previously assigned them.
Instead of following the western line of Arkansas and Missouri as far north as the point where the Grand or Neosho River crosses the boundary of the latter State, and running from thence due west to a point due north of the old western boundary line of Arkansas Territory, and thence south to the Arkansas River, the new line followed the present western boundary of Arkansas and Missouri as far north as the south line of the territory then recently assigned to the Senecas; thence west along the south line of the Senecas to Grand River, and following up Grand River to the south boundary of the Osage reservation, which was parallel with the present southern boundary of Kansas, and on the average about two miles to the north of it; thence west for quantity.
Prior340 to the conclusion of this treaty of 1833, a delegation of the Western Cherokees had visited Washington to insist upon a literal fulfillment of the treaty of 1828 and especially to demand that they be possessed of all lands and improvements within the outboundaries of their country as defined by the last named treaty. The lands and improvements alluded to were seven reservations of one section each on the Neosho River assigned to certain half-breed Osage Indians by the terms of the treaty of 1825341 with that tribe.
Although the treaty of 1833 failed to make provision for the extinguishment of these Osage half-breed titles, the desired object was attained by the terms of the fourth article of the treaty of December 29, 1835, wherein $15,000 were appropriated for the purchase.342
On the 10th of February, 1834, George Vashon, agent for the Western Cherokees, negotiated a treaty with them343 having in view an adjustment of certain differences between themselves and their eastern brethren, whereby the feelings of the latter should be more favorably affected toward an emigration to the western country. The treaty provided for a readjustment of the tribal annuities proportioned to the respective numbers of the Cherokees east and west, the basis of division to be ascertained by an accurate census. The country provided for the Cherokees by the treaty of 1833 was to be enlarged so that it should equal in quantity, acre for acre, the country ceded by the Cherokees east in 1817 and 1819, as well as the proportional quantity of those who should agree to emigrate to the West under the provisions of this treaty. It was also agreed that all Cherokees should possess equal rights in the new country, and that an asylum should be established for the maintenance of the orphan children of the tribe. The negotiations thus entered into were, however, barren of results, inasmuch as President Jackson refused to recommend the treaty to the Senate for the advice and consent of that body.344
Held at New Echota, Georgia, between General William Carroll and John F. Schermerhorn, commissioners on the part of the United States, and the chiefs, headmen, and people of the Cherokee tribe of Indians.345
The preamble recites at considerable length the reasons for the negotiation of the treaty and the preliminary steps taken, following which the provisions of the treaty as concluded are given.
1. The Cherokee Nation cedes to the United States all the land claimed by said Nation east of the Mississippi River, and hereby releases all claims on the United States for spoliations of every kind for and in consideration of $5,000,000. In case the United States Senate should decide that this sum does not include spoliation claims, then $300,000 additional should be allowed for that purpose.
2. The description of the 7,000,000 acres of land guaranteed to the Cherokees west of the Mississippi by the treaties of 1828 and 1833 is repeated, and in addition thereto the further guaranty is made to the Cherokee Nation of a perpetual outlet west, and a free and unmolested use of all the country west of the western boundary of said 7,000,000 acres, as far west as the sovereignty of the United States and their right of soil extend, provided that if the salt plain shall fall within the limits of said outlet the right is reserved to the United States to permit other tribes of Indians to procure salt thereon. "And letters patent shall be issued by the United States as soon as practicable for the land hereby guaranteed."
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 $331/3 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.
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.
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.
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 instructed347 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 appointed349 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 advised353 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 recent354 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
About this time356 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 later357 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 communicated358 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 1829359 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 followed360 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 directions362 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 directed363 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 after364 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.
In this situation of affairs Col. John Lowry was appointed365 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 council366 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 refusal367 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.
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
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 autumn371 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.
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.
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