Part 31

Under all the circumstances of the case I do not think it advisable to march into the Cherokee country at this time unless there is some urgent necessity for it. If the views expressed in my communication to you of the 14th instant are carried out, it will, I am satisfied, force the conviction on the Cherokees that they have but one course to pursue--that is, to join the Confederacy. The Choctaw and Chickasaw regiment will be kept on the south of them; Arkansas will be to the east; and with my force on the western border of Missouri no force will be able to march into the Cherokee Nation, and surrounded as they will be by Southern troops, they will have but one alternative at all events. From my position to the north of them, in any event, I will have a controlling power over them. I am satisfied from my interview with John Ross and from his communication that he is only waiting for some favorable opportunity to put himself with the North. His neutrality is only a pretext to await the issue of events.

I have the honor to be, sir, your obedient servant,

BEN. MCCULLOCH, Brigadier-General Commanding.

_Official Records_, first ser., vol. iii, 595-596.

[245] See Pike to Toombs, May 20, 1861 [_Official Records_, first ser., vol. iii, 580-581].

[246] On the twenty-ninth of May, Pike wrote to Toombs again and informed him that he was leaving for Tahlequah that very morning [_Ibid._, fourth ser., vol. i, 359].

[247] See McCulloch to Walker, May 28, 1861 [_Ibid._, first ser., vol. iii, 587-588].

[248] See Pike to Cooley, February 17, 1866 [Indian Office, _Miscellaneous Files_].

[249] --_Ibid._

[250] McCulloch to Walker, June 12, 1861 [_Official Records_, first ser., vol. iii, 591].

[251] _Official Records_, first ser., vol. xiii, 489-490.

[252] _Official Records_, first ser., vol. iii, 585-587.

[253] --_Ibid._, 589.

[254] --_Ibid._, 587.

[255] --_Ibid._, 593-594.

[256] See Albert Pike to John Ross, June 6, 1861 and John Ross to Albert Pike, July 1, 1861 in General Files, _Cherokee, 1859-1865_, C515.

[257] It would appear that, failing with John Ross, Pike tried to negotiate with the disaffected Cherokees under the control of Stand Watie, Boudinot, and others. See _Office Letter_ to President Johnson, February 25, 1866. Pike himself says that he invited some of these men to meet him at the Creek Agency. See Pike to Cooley, February 17, 1866.

[258] The text of the treaties is to be found in the _Confederate Statutes_ and also in _Official Records_, fourth ser., vol. i, as follows:

Creek Treaty, 426-443 Osage Treaty, 636-646 Choctaw and Chickasaw Treaty, 445-466 Seneca and Shawnee Treaty, Seminole Treaty, 513-527 647-658 Wichita Treaty, 542-548 Quapaw Treaty, 659-666 Comanche Treaty, 548-554 Cherokee Treaty, 669-687

[259] Although the Creek Treaty was negotiated July tenth and was the first to be negotiated, Dole was ignorant of its existence as late as October second [_Report_, 1861, 39], which only goes to prove how very slight was the Federal communication with Indian Territory through all that critical time.

[260] President Davis, in his message of December 12, 1861, said,

Considering this act as a declaration by Congress of our future policy in relation to those Indians, a copy of that act was transmitted to the commissioner and he was directed to consider it as his instructions in the contemplated negotiation. [Richardson, _Messages and Papers of the Confederacy_, vol. i, 149; _Official Records_, fourth ser., vol. i, 785.]

[261] All the treaties of the First Class contain a _Preamble_, lacking in the others, which specifically outlines the assumption of the protectorate. In addition, those same treaties have a special clause accepting the full force of the Act of May twenty-first.

All references to these treaties, unless otherwise noted, will be page references to the treaties as found in the _Statutes at Large_ of the Provisional Government of the Confederate States of America.

[262] See Creek Treaty, Articles II and IV, pp. 289, 290; Choctaw and Chickasaw Treaty, Articles II and VII, pp. 312, 313; Seminole Treaty, Articles II and IV, Pp. 332, 333; Cherokee Treaty, Articles II and V, pp. 395, 396.

[263]

ARTICLE VIII (Creek Treaty). The Confederate States of America do hereby solemnly agree and bind themselves that no State or Territory shall ever pass laws for the government of the Creek Nation; and that no portion of the country hereby guaranteed to it shall ever be embraced or included within or annexed to any Territory or Province; nor shall any attempt ever be made, except upon the free, voluntary and unsolicited application of the said nation, to erect the said country, by itself or with any other, into a State or any other territorial or political organization, or to incorporate it into any State previously created [p. 291].

Compare with similar articles in the other treaties; viz., Article X of the Choctaw and Chickasaw, p. 314; Article VIII of the Seminole, p. 334; Article VIII of the Cherokee, p. 397; Articles VIII and XXVI of the Osage, pp. 364, 367; Articles VIII and XIX of the Seneca and Shawnee, pp. 376, 377; Article VII of the Quapaw, p. 367.

[264]

ARTICLE XL (Creek Treaty). In order to enable the Creek and Seminole Nations to claim their rights and secure their interests without the intervention of counsel or agents, and as they were originally one and the same people and are now entitled to reside in the country of each other, they shall be jointly entitled to a delegate to the House of Representatives of the Confederate States of America, who shall serve for the term of two years, and be a member of one of the said nations, over twenty-one years of age, and labouring under no legal disability by the law of either nation; and each delegate shall be entitled to the same rights and privileges as may be enjoyed by delegates from any territories of the Confederate States to the said House of Representatives. Each shall receive such pay and mileage as shall be fixed by the Congress of the Confederate States. The first election for delegate shall be held at such time and places, and be conducted in such manner as shall be prescribed by the agent of the Confederate States, to whom returns of such election shall be made, and he shall declare the person having the greatest number of votes to be duly elected, and give him a certificate of election accordingly, which shall entitle him to his seat. For all subsequent elections, the times, places, and manner of holding them and ascertaining and certifying the result shall be prescribed by law of the Confederate States [p. 297].

Compare with Article XXVII of Choctaw and Chickasaw Treaty [p. 318], the chief point of difference between the two being that, in the latter treaty the delegate to which the two tribes, parties to the treaty, were entitled jointly, was to be elected from them alternately. The Choctaw and Chickasaw Treaty also stipulated that the delegate was to be a member by birth or blood on either the father's or the mother's side. The corresponding provision in the Cherokee Treaty, Article XLIV [pp. 403-404], said that the delegate should be a native born citizen. The Seminole arrangement, Article XXXVII [p. 339], was, as might be expected, exactly the same as the Creek.

[265] The Choctaw and Chickasaw Treaty was the only one that developed this idea. We might presume that the Creeks were even opposed to it. This is how it appears in Articles XXVIII, XXIX, and XXX, of the Choctaw and Chickasaw Treaty [pp. 318-319]:

ARTICLE XXVIII. In consideration of the uniform loyalty and good faith, and the tried friendship for the people of the Confederate States, of the Choctaw and Chickasaw people, and of their fitness and capacity for self-government, proven by the establishment and successful maintenance, by each, of a regularly organized republican government, with all the forms and safe-guards to which the people of the Confederate States are accustomed, it is hereby agreed by the Confederate States, that whenever and so soon as the people of each nation shall, by ordinance of a convention of delegates, duly elected by majorities of the legal voters, at an election regularly held after due and ample notice, in pursuance of an act of the Legislature of each, respectively, declare its desire to become a State of the Confederacy, the whole Choctaw and Chickasaw country, as above defined, shall be received and admitted into the Confederacy as one of the Confederate States, on equal terms, in all respects, with the original States, without regard to population; and all the members of the Choctaw and Chickasaw Nations shall thereby become citizens of the Confederate States, not including, however, among such members, the individuals of the bands settled in the leased district aforesaid.

_Provided_, That, as a condition precedent to such admission, the said nations shall provide for the survey of their lands, the holding in severalty of parts thereof by their people, the dedication of at least one section in every thirty-six to purposes of education, and the sale of such portions as are not reserved for these, or other special purposes, to citizens of the Confederate States alone, on such terms as the said nation shall see fit to fix, not intended or calculated to prevent the sale thereof.

ARTICLE XXIX. The proceeds of such sales shall belong entirely to members of the Choctaw and Chickasaw Nations, and be distributed among them or invested for them in proportion to the whole population of each, in such manner as the Legislatures of said nations shall provide; nor shall any other persons ever have any interest in the annuities or funds of either the Choctaw or Chickasaw people, nor any power to legislate in regard thereto.

ARTICLE XXX. Whenever the desire of the Creek and Seminole people and the Cherokees to become a part of the said State shall be expressed, in the same manner and with the same formalities, as is above provided for in the case of the Choctaw and Chickasaw people, the country of the Creeks and Seminoles, and that of the Cherokees, respectively, or either by itself, may be annexed to and become an integral part of said State, upon the same conditions and terms, and with the same rights to the people of each, in regard to citizenship and the proceeds of their lands.

[266] Abel, "Proposals for an Indian State in the Union, 1778-1878," in the American Historical Association, _Report_, 1907, pp. 89-102.

[267] _Official Records_, first ser., vol. iii, 577.

[268] Articles V and VI.

[269] Article VIII.

[270] Article XI.

[271] Article XII.

[272] Article VII of the Seminole Treaty [p. 334], and Article VII likewise of the Creek Treaty [p. 291].

[273] Article IV of the Cherokee Treaty [pp. 395-396].

[274] In the matter of the guarantee of territorial integrity, the treaties of the Second Class were strictly on a par with those of the First Class. See Article VIII of the Osage Treaty [p. 364], Article XIX of the Seneca and Shawnee Treaty [p. 378], Article VII of the Quapaw [p. 387].

[275] Article XLVII [pp. 407-408].

[276] Article V [p. 348].

[277] Article III [pp. 374-375].

[278] Article V [p. 291].

[279] Article I [p. 354].

[280] For an illustration of how the Seminoles had been preferring the claim, see the following affidavit:

Be it known that on this 22d day of January, A.D. 1856, personally appeared before me, J. W. Washbourne, United States' Agent for Seminoles, in open Council, the following named Chiefs and Head men of the Seminole tribe of Indians, and deposed to the subsequent statement.

That sometime during the war between the United States and the Seminoles, Gen. Thomas S. Jessup, then commanding the U. S. troops in Florida, issued a proclamation to the effect that all negroes belonging to the hostile Seminoles who should come in and take service under the Government against their masters, or in any way render service to the United States against the Seminoles, or induce them to sue for peace and emigrate west, they, the negroes, should be declared free: That many negroes took advantage of said illegal proclamation and did take service in Florida under Government, but that, by far the larger number of negro slaves who took refuge under said proclamation and thereby claimed their freedom, did so after the immigration west was determined or consummated: That said negro slaves, in great numbers and to the great injury of their owners, and against their orders, took refuge within the United States' post, Fort Gibson, Cherokee Nation, where they were for upwards of three years protected by the United States officers at that Post, although the Seminoles claimed them, the negroes, as their lawful slaves, and protested against this procedure of the U. S. officers: That while these negro slaves were thus protected by military officers, it was impossible to keep their slaves at home who were continually flying to Fort Gibson, where they were beyond the reach of their masters: That this occurred during the years 1845-'6-'7: That through the instrumentality of their former Sub Agent and attornies employed by them, they after long delay and at great expense and loss of slaves, presented the matter to the attention of the Secretary of War, Hon. Wm. L. Marcy, and that finally from him, as such Secretary of War, there issued an order bearing date the 5th of August 1848, directed to the commanding officer at Fort Gibson, enjoining him to protect no longer said negro slaves at that Post and commanding him to deliver all of said slaves to the Seminoles their rightful owners: That even after this order the nuisance did not abate, for another order dated July 31st 1850 required the commanding officer of Fort Gibson to give no further protection to these "Seminole negroes": That by this order of the Secretary of War, as was just and right, the United States recognised the ownership of these said slaves as being in the Seminoles, and that they were entitled by law and right to said slaves and their service: That in consequence of the withdrawal of the protection afforded them at Fort Gibson and from their having so long considered themselves free, said slaves in great numbers escaped, some of whom reached Mexico, some were killed by the wild Indians, and the remainder were only captured at great and ruinous expense: That the owners of these said negro slaves are justly and equitably entitled to the service of said slaves, while unlawfully and against the power and protests of the Seminoles, detained at Fort Gibson for the space of more than three years, by U. S. officers: That the number of said negro slaves so unlawfully detained and kept from the service due their masters, as near as now can be estimated was Two Hundred and Thirty-four or thereabouts: That the services of these said slaves for these three years and upwards were amply worth at the time Seventy five dollars each per annum, making the sum of Fifty two Thousand Six hundred and fifty dollars ($52.650.00,) to which the Seminole owners of said slaves are fully and fairly, in law and equity, entitled, and which ought to be paid to them by the Government of the United States.

JOHN JUMPER, P. Chief Seminoles X his mark PAH SUC AH YO HO LAH, Speaker Council X his mark CHITTO-TUSTO-MUGGEE X his mark ARHAH-LOCK-TUSTO-MUGGEE X his mark NOKE-SU-KEE X his mark PARS-CO-FER X his mark TESI-KI-AH X his mark ALLIGATOR X his mark TALLA-HASSA X his mark GEORGE CLOUD X his mark HO-TUL-GEE-HARJO X his mark TAR-HAH FIXICO X his mark

Sworn to and subscribed before me, in open Council Jany 22d 1856.

J. W. WASHBOURNE U. S. Agent for Seminoles.

Witnesses: GEORGE M. AUD

[281] President Polk seems to have been of the opinion that negro slaves could not be freed by military proclamation [_Diary_ (Quaife's edition), vol. iii, 504].

[282] Slavery was not completely ignored even in the treaties of the Third Class. In Article IX of their treaty [p. 348], the Wichitas promised to do all in their power to take and return any negroes, horses, or other property stolen from white men or from Indians of the great tribes. The corresponding article in the Comanche Treaty [p. 355], was to like purpose.

[283] Article XXXVII of the Osage Treaty, Article XXVIII of the Seneca and Shawnee Treaty, and Article XXVII of the Quapaw Treaty.

[284] The following are the Creek clauses and the Choctaw and Chickasaw, Articles XLV and XLVII, the Seminole, Articles XXIX and XXXIII, and the Cherokee, Articles XXXIV and XXXVII, are similar:

ARTICLE XXIX. The provisions of all such acts of Congress of the Confederate States as may now be in force, or may hereafter be enacted, for the purpose of carrying into effect the provision of the constitution in regard to the re-delivery or return of fugitive slaves, or fugitives from labour and service, shall extend to, and be in full force within the said Creek Nation; and shall also apply to all cases of escape of fugitive slaves from the said Creek Nation into any other Indian nation or into one of the Confederate States, the obligation upon each such nation or State to re-deliver such slaves being in every case as complete as if they had escaped from another State, and the mode of procedure the same [p. 296].

ARTICLE XXXII. It is hereby declared and agreed that the institution of slavery in the said nation is legal and has existed from time immemorial; that slaves are taken and deemed to be personal property; that the title to slaves and other property having its origin in the said nation, shall be determined by the laws and customs thereof; and that the slaves and other personal property of every person domiciled in said nation shall pass and be distributed at his or her death, in accordance with the laws, usages and customs of the said nation, which may be proved like foreign laws, usages & customs, and shall everywhere be held valid and binding within the scope of their operation [p. 296].

[285] P. 369.

[286] Article XVII of the Cherokee Treaty [p. 399].

[287]

ARTICLE XV (Creek Treaty). The Confederate States shall protect the Creeks from domestic strife, from hostile invasion, and from aggression by other Indians and white persons not subject to the jurisdiction and laws of the Creek Nation, and for all injuries resulting from such invasion or aggression, full indemnity is hereby guaranteed to the party or parties injured, out of the Treasury of the Confederate States, upon the same principle and according to the same rules upon which white persons are entitled to indemnity for injuries or aggressions upon them committed by Indians [p. 293].

See also Article XXI of the Choctaw and Chickasaw Treaty and Article XV of the Seminole Treaty.

[288] Manypenny to Dean, November 30, 1855 [Indian Office, _Letter Book_, no. 53, pp. 94-95]. Dean to Manypenny, December 25, 1855 [_Letter Press Book_].

[289] Compare Article XX of the Cherokee Treaty and Article XXIV of the Choctaw and Chickasaw Treaty with Article XVI of the Creek Treaty and all of these with Article XVI of the Seminole Treaty.

[290] See, for example, Article XVIII of the Seminole Treaty [p. 336].

[291] One other important right was conceded and that was the right of free transit. The concession is well stated in the Creek Treaty and occurs in connection with a prohibition against the pasturing of stock by outsiders within the Creek country.

ARTICLE XXII. No citizen or inhabitant of the Confederate States shall pasture stock on the lands of the Creek Nation, under the penalty of one dollar per head for all so pastured, to be collected by the authorities of the nation; but their citizens shall be at liberty at all times, and whether for business or pleasure, peaceably to travel the Creek country; and to drive their stock to market or otherwise through the same, and to halt such reasonable time on the way as may be necessary to recruit their stock, such delay being in good faith for that purpose.

ARTICLE XXIII. It is also further agreed that the members of the Creek Nation shall have the same right of travelling, driving stock and halting to recruit the same in any of the Confederate States as is given citizens of the Confederate States by the preceding article [p. 295].

[292] Article LXV of the Creek Treaty, Article XXVI of the Choctaw and Chickasaw Treaty, Article XXXI of the Seminole Treaty, and Article XXII of the Cherokee Treaty.

[293] Article XVIII of the Creek Treaty, Article XXV of the Choctaw and Chickasaw Treaty, Article XIX of the Seminole Treaty, and Article XXI of the Cherokee Treaty.

[294] Article LXV of the Creek Treaty and Article XXXI of the Seminole Treaty.

[295] Tush-ca-hom-ma at Boggy Depot and Cha-lah-ki at Tahlequah.

[296] Article XXX of the Creek Treaty, Article XLIII of the Choctaw and Chickasaw Treaty, Article XXX of the Seminole Treaty, and Article XXXV of the Cherokee Treaty.

[297] Article XXVIII of the Creek Treaty, Article XLIV of the Choctaw and Chickasaw Treaty, Article XXVIII of the Seminole Treaty, Article XXXIII of the Cherokee Treaty, Article XXXVI of the Osage Treaty, Article XXVII of the Seneca and Shawnee Treaty, and Article XXVII of the Quapaw Treaty.

[298] Article XXIX of the Cherokee Treaty and Article XXIII of the Choctaw and Chickasaw Treaty.

[299]

ARTICLE XXXI (Cherokee Treaty). Any person duly charged with a criminal offence against the laws of either the Creek, Seminole, Choctaw or Chickasaw Nations, and escaping into the jurisdiction of the Cherokee Nation, shall be promptly surrendered upon the demand of the proper authority of the nation within whose jurisdiction the offence shall be alleged to have been committed; and in like manner, any person duly charged with a criminal offence against the laws of the Cherokee Nation, and escaping into the jurisdiction of either of the said nations, shall be promptly surrendered upon the demand of the proper authority of the Cherokee Nation [pp. 401-402].

Note the development from the corresponding extradition clause in the earlier treaties of the series. In the Creek and Seminole treaties, extradition was as between Creeks and Seminoles exclusively. In the Choctaw and Chickasaw Treaty, it was as between Choctaws and Chickasaws exclusively. In this treaty of the Cherokees, all the tribes were to be sharers in the extradition privilege; but it is difficult to understand how a clause in the Cherokee Treaty could be made legally binding upon other Indians than Cherokee.

[300] Article XXVI.

[301] It was also a one-sided affair in the treaties of the Second Class. See Article XXXIV of the Osage Treaty, Article XXV of the Seneca and Shawnee Treaty, and Article XXV of the Quapaw Treaty.

[302] Article XXXVII of the Choctaw and Chickasaw Treaty [p. 320], and Article XXXII of the Cherokee Treaty [p. 402].