Part 9

Because it was a matter of expediency and not because it was a principle that it believed in, otherwise it would have given it to the weak tribes as well as to the strong, the Confederacy gave to the Indians of the great tribes, but not to all in exactly the same measure,[289] the control of their own trade. It did not do away with the post trader, as it ought to have done in order to make its reform complete, but it did deprive him of his monopoly privileges. It hedged his license about with restrictions,[290] made it subject, on complaint of the Indian and in the event of arrearages, to revocation; and, to all of the great tribes except the Seminoles, it gave the power of taxing his goods, his stock in trade, usually a rather paltry outfit. No better precaution could have possibly been devised against exorbitant charging. An ad valorem tax would most certainly have quite eliminated the fifty, the one hundred, and the two hundred per cents of profit. As a matter of fact, the extravagantly high prices of the ordinary Indian trader would be, for most persons, positively prohibitive. The Confederacy further bound itself to pay to the Indians an annual compensation for the land and timber used by the trader.

The questions settled as between the several states and the Indian tribes were chiefly[291] of property rights and of civil and criminal rights and procedure. In addition to their property right in slaves, the Indians were at last admitted to have a possible right in other things, in land, for instance, that might lie within the limits of a state. This they were henceforth to hold, dispose of as they pleased, and bequeath by will.[292] Restrictions, likewise, upon their power freely to dispose of their chattels,[293] were removed, a coördinate concession, but one that did not so much affect their relations with a given individual state as their relations with the central government. To such[294] of the Indians as were not to be brought within the jurisdiction of the Confederate States District Courts[295] that were to be created within the Indian country, the right was given to sue and to implead in any of the courts of the several states. To Indians generally of the great tribes was given the right to be held competent as witnesses[296] in state courts, and, if indicted there themselves, to subpoena witnesses and to employ counsel.[297] The Cherokees, the Choctaws, and the Chickasaws were also granted the right of recovery[298] as against citizens of the Confederate States. Should recovery not be possible, the Confederacy was to stand the loss. But more than anything else reciprocal right of extradition was henceforth to be accorded. This was to exist as between tribe and tribe[299] and, with some slight exceptions, as between tribe and state. An examination of the various treaties reveals a steady development in the matter of this concession. The Creek Treaty,[300] which was the first to be negotiated, made extradition a rather one-sided[301] affair. The tribe was to yield the criminal to the state, but, not reciprocally, the state to the tribe. This verbal inequality would not have so much mattered had there been a possibility that in the sequel it would have been interpreted, as in the states, in terms of executive courtesy and discretion; but the chances were that a state would have made it a matter of absolute obligation with the tribe. Reciprocity[302] found its way into the second treaty, however, and also into all the later ones of the First Class. Finally, be it remarked, that as a climax to this series of judicial concessions, full faith and credit[303] were to be given by the one Indian nation or Confederate state, as the case might be, to all legal processes, decisions, and acts of the other.

There yet remain two provisions[304] of importance that were intended to put the Indian nations on a basis of equality with the states. They are provisions rather particular in their nature, however, and, in their full operation, would have affected Texas and Arkansas much more nearly than any other members of the Southern Confederacy. The first of these provisions is to be found, as a grant of mutual rights, only in treaties of the First Class and in two only of those, the Choctaw and Chickasaw and the Cherokee. The omission from the Creek and Seminole treaties was due, most likely, to geographical conditions; but the lack of reciprocity in the Osage, the one treaty of the Second Class in which a suggestion of the provision occurs, was just as surely due to the weakness of the tribe from which the privilege was exacted. The provision comprehended the use of navigable streams within the limits of the Confederacy and the Indians specified were to have the same rights in the premises as the citizens of the Confederate States. Osage[305] streams and water courses were, however, to be open to white people but not conversely Confederate waters to the Osages. The clauses in treaties of the First Class, embodying this provision, comprehended all navigable streams whatsoever but had particular application to the Red and Arkansas Rivers, the Choctaw[306] and Chickasaw to the former and the Cherokee[307] to the latter. The rights of ferrying on these streams were to be open alike to white and red men living upon their banks.

The second provision was couched in terms of general amnesty. The Indians were to forgive wholesale the citizens of the individual Confederate states for their past offences and, reciprocally, the states were to forgive and pardon the Indians for theirs, or, rather, the government of the Confederate States was to use its good offices to persuade and induce them to do so.[308] The Choctaw and Chickasaw Treaty contained, in addition to this general clause, a particular one bringing out again the close connection with Texas and Arkansas. It reads thus:

... And the Confederate States will especially request the States of Arkansas and Texas to grant the like amnesty as to all offences committed by Choctaw or Chickasaw against the laws of those States respectively, and the Governor of each to reprieve or pardon the same, if necessary.[309]

Some evidence of the special interest Texas might have in the matter came out rather prominently in the treaties of the Third Class, the amnesty in them was particular while the amnesty in the treaties of the other two classes was general. This is what the Wichita and Comanche say:

It is distinctly understood by the said several tribes and bands, that the State of Texas is one of the Confederate States, and joins this Convention, and signs it when the Commissioner signs it, and is bound by it; and all hostilities and enmities between it and them are now ended and are to be forgotten and forgiven on both sides.[310]

It soon developed that Texas was not pleased to find her consent so thoroughly taken for granted and that the Reserve Indians were no better satisfied. The enmity between the two continued as before.

As regarded the relations between the Indian tribes and the Confederate States proper, the Pike treaties were old law in so far as they duplicated the earlier United States treaty arrangements and new law only in so far as they met conditions incident to the war. United States laws and treaties were specifically continued in force wherever possible, and, in most cases, the name of the one government was simply substituted for that of the other. Considerable emphasis was laid upon the right of eminent domain. The Indians conceded to the Confederacy the power to establish agency reserves,[311] military posts[312] and fortifications, to maintain post and military roads,[313] and to grant the right of way,[314] upon payment of an indemnity,[315] to certain corporations for purposes of internal improvement, mainly railway and telegraph lines. Most of this would have contributed very materially to the good of the southern cause in guarding one of the approaches to Texas and in increasing the convenience of communication. The Confederate States assumed the wardship of the tribes, exacted a pledge of loyalty from the weaker and one of alliance,[316] offensive and defensive, but without the entail of pecuniary responsibility, from the stronger. In its turn, the Confederacy promised to the Indians many things, deserving of serious mention and far too important for mere enumeration. As a matter of fact, the South paid pretty dearly, from the view-point of historical consistency, for its Indian alliance. In the light of Indian political history, it yielded far more than at first glance appears and, as a consequence, the great tribes gained nearly everything that they had been contending for for half a century.

As has just been intimated, the concessions made by the Confederacy to the Indians were somewhat significant. In addition to the things noted a few paragraphs back, congressional delegates, control of trade, and others of like import, Pike, the lawyer commissioner and the man of justice, promised the establishment of Confederate States courts within the Indian country. There were to be two of them, one in the Choctaw country[317] and one in the Cherokee.[318] They were to be District Courts with a limited Circuit Court jurisdiction. The importance of the concession cannot well be over-estimated; for it struck at the root of one of the chief Indian grievances. The territorial extent of the districts was left a little vague and the jurisdiction was not fairly distributed. Here again we have an illustration of might conditioning right. The Osages,[319] the Senecas and Shawnees,[320] and the Quapaws[321] were all brought within the limits of the Cha-lah-ki, or Cherokee district, but it is not clear that, as far as they were concerned, any other offences than those against the Fugitive Slave[322] laws, were to come within the purview of the court. The Wichitas and Comanches were left entirely unassigned, although naturally, they would have come within the Tush-ca-hom-ma, or Choctaw district.

The Confederacy reinstituted the agency system and continued it with modifications. These modifications were in line with reiterated complaints of the Indians. They restricted the government patronage to some extent and, in certain instances, allowed a good deal of tribal control. As a general thing, to each tribe was allowed one agent and to each language, one interpreter. An exception to the first provision was to be found wherever it had been found under the earlier régime. Thus there was a single agent for the Choctaws and Chickasaws, another for the fragmentary tribes of the Leased District, and another for those of the Neosho River country. In the minor treaties, it was stipulated, for very evident and very sound reasons, most of them based upon experiences of past neglect, that the agent should be faithful in the performance of his duties, that he should reside at his agency continually, and never be absent for long at a time or without good and sufficient cause.

There were also certain things the Indians were forbidden to do, many of them familiar to us in any ordinary Bill of Rights and having reference to ex-post facto laws, laws impairing the obligation of contracts, due process of law, and the like. The Confederacy, in turn, bound itself not to allow farming on government reserves or settlement there except under certain conditions and not to treat[323] with Cherokee factions. It inserted into the treaties with the minor tribes the usual number of civilization clauses, promising agricultural and industrial support; and into the Cherokee some things that were entirely new, notably a provision that the congressional delegation from each of the great tribes should have the right to nominate a youth to membership in any military academy that might be established.[324] It also promised to maintain a postal system throughout the Indian country, one that should be, in every particular, a part of the postal system of the Confederate States with the same rates, stamps, and so on. To the Cherokees, it promised the additional privilege[325] of having the postmasters selected and appointed from among their own people. From the foregoing analysis of the treaties, it is clearly seen that the characteristic feature of them all was conciliation and conciliation written very, very large. Of the great tribes, the Confederacy asked an alliance full and complete; of the middle tribes, such as the Osage, it asked a limited alliance and peace; and of the most insignificant tribes it asked simply peace but that it was prepared, not only to ask, but, if need be, to demand. Between the Cherokees and the Wichitas, there was a wide, wide gulf and one that could be measured only in terms of political and military importance.

So much for the contents of the treaties but what about the detailed history of their negotiation? When Albert Pike first came within reach of the Indian country, he communicated[326] officially or semi-officially with the men belonging or recently belonging to the Indian field service, agents and agency employees, or, at least, with those of them that were known as Confederate sympathizers. A few very necessary changes had been made in the service with the inauguration of President Lincoln but the changes were not always such as could, in any wise, have strengthened the Federal position. First, as regards the southern superintendency, an attempt had been made to find a successor to Elias Rector[327] at about the same time that Harrison B. Branch[328] of Missouri had been appointed central superintendent in the stead of A. M. Robinson. The man chosen was Samuel L. Griffith[329] of Fort Smith to whom the new Secretary of the Interior, Caleb B. Smith, telegraphed on the fifth of April, tendering the position. Similarly by wire, on the ninth, Griffith accepted; and, on the tenth, explained[330] the delay in the following letter:

Being a member of our State Convention on the Union side, I hesitated a day or two, as to the propriety of accepting, fearing it might affect the union cause, but on mature deliberation and counsel with union friends, and on the receipt of a memorial signed by a large number of names of men of all parties, I concluded to accept....

Col. W. H. Garret Agt. for the Creeks, passed through this place on the 8th....

Col. S. Rutherford left here this morning for his agency (the Seminole). I desired him to ascertain on his way through the Creek and Choctaw Nations, the facts, as to the rumor that two men from Texas were in the Creek Nation for the purpose of meeting the several nations in Council &c. and to report to me immediately....

Dr. Griffith's solicitude for the Union interests apparently soon vanished. On the twentieth of April, he wrote[331] that, "under the circumstances," he could not hold office. Coffin of Indiana was then selected[332] for the place of southern superintendent and, in a very little while, Griffith was among the applicants[333] for the corresponding position in the Confederate States. Between the dates of the two activities, moreover, he had been appointed by the Arkansas Convention one of the three special agents to interview the Indian tribes in the interests of secession. That was on the tenth of May.

The changes in the agency incumbents proved equally temporary and unfortunate. Particularly was this the case with two determined[334] upon on the sixth of April. Four days later, William Quesenbury[335] of Fayetteville, Arkansas was notified that he had been appointed to succeed William H. Garrett as agent for the Creeks, and John Crawford[336] of the same place that he had been appointed to succeed Robert J. Cowart as agent for the Cherokees. Both went over to the Confederacy. Nothing else could well have been expected of Crawford, or of Quesenbury either for that matter, and it is rather surprising that their past records were not more thoroughly examined. Quesenbury, like Richard P. Pulliam, was a sort of protégé of Elias Rector. Pulliam had been Rector's clerk in the office and Quesenbury his clerk in the field.[337] Crawford had been very prominent[338] in the Arkansas legislature the preceding winter in the expression of ideas and sentiments hostile to Abraham Lincoln. He accepted the office of Cherokee agent under Lincoln, notwithstanding, and he subsequently said[339] that he did so because the Indians would not have liked a northern man to come among them. Before Crawford's commission arrived, Cowart had departed[340] and Cherokee affairs were in dire confusion.[341] John J. Humphreys[342] of Tennessee had meanwhile been offered the Wichita Agency[343] and Peter P. Elder[344] of Kansas, the Neosho River. The Choctaw and Chickasaw Agency seems to have been left vacant. Truth to tell, there was no longer any such agency under United States control. Cooper had thrown in his lot with the secessionists and was already working actively in their cause.

The defection of Douglas H. Cooper, United States agent for the Choctaws and the Chickasaws, can not be passed by so very lightly; for it had such far reaching effects. The time came during and after the war, when the United States Indian Office came to have in its possession various documents[345] that proved conclusively that Douglas H. Cooper had been most instrumental in organizing the secession movement among the Indians of at least his own agency. It was even reported[346] that material was forthcoming to show how he "was engaged in raising troops for the Rebel Army, during the months of April, May, and June, 1861, while holding the office of U. S. Indian Agent." His successor had been appointed considerably before the end of that time, however, and, when the war was over, the Indians themselves exonerated him from all responsibility in the matter of their own defection.[347] Notwithstanding, he most certainly did manifest unusual activity in behalf of the slaveholding power. Even his motives for manifesting activity are, in a sense, impugned as instanced by the following most extraordinary letter, which, written by Cooper to Rector privately and in confidence and later transmitted to Washington out of the ordinary course of official business, has already been quoted once for the purpose of forming a correct estimate of the recipient's character. It is gratifying to know that such letters are very rare in connection with the history of the American Civil War.

_Private & Confidential_

[_Copy_]

FORT SMITH May 1st 1861.

MAJOR ELIAS RECTOR

Dr. Sir: I have concluded to act upon the suggestion yours of the 28th Ultimo contains.

If we work this thing shrewdly we can make a fortune each, satisfy the Indians, stand fair before the North, and revel in the unwavering confidence of our Southern Confederacy.

My share of the eighty thousand in gold[348] you can leave on deposite with Meyer Bro. subject to my order. Write me soon.

COOPER.

When Captain Pike[349] reached the North Fork Village, very probably still attended by the escort that the Military Board of Arkansas had graciously--or perhaps officially since Pike, according to his own confession, was acting as commissioner from Arkansas[350] as well as from the Confederacy--furnished[351] him,[352] he found the Creeks awaiting his approach with some anxiety. Among them were Motey Kennard,[353] principal chief of the Lower Creeks, and Echo Harjo, principal chief of the Upper Creeks, both of whom had been absent[354] in Washington at the time the inter-tribal council of the spring had been planned. They had gone to Washington, in company with John G. Smith, as a delegation, greatly concerned about the prospect of Creek finances and the continuance of Creek integrity should the quarrel between the North and the South continue. Greenwood had tried to reassure them; but, when shortly afterwards, all Indian allowances were suspended[355] by the United States Indian Office for fear that remittances might fall, en route, into the hands of the disaffected, the distrust and the dissatisfaction of the Indians revived and increased, thus rendering them peculiarly susceptible to the plausible secessionist arguments of men like Agent Garrett. Sometime in May, therefore, a delegation was sent to Montgomery[356] to confer with authorities of the Confederate States, who by the time of the arrival of the Creeks had moved on to Richmond.

At the North Fork Village, everything seemed to be working in Pike's favor. There was scarcely a white man[357] around who was willing to say a word for the North; and leading Indians, who were known to be anti-secessionists, were away[358] treating with the Indians of the Plains. Opoeth-le-yo-ho-la, who was to become the stanch leader of the opposition, was not with the absentees, it would seem; but then that, at the time, did not so much signify because he was not a ranking chief and so had little influence.[359] On the tenth of July, the treaty that Pike and the Creek commissioners had been working on for days was finally submitted for signature and the names of Motey Kennard, Echo Harjo, Chilly McIntosh, Samuel Checote and many other less prominent Creeks were attached to it. On the twentieth, the general council approved it and more names were attached, that of Jacob Derrysaw being among them. On one or the other occasion, several white men signed. William Quesenbury, who was acting as Pike's secretary, Agent Garrett, Interpreter G. W. Stidham,[360] and W. L. Pike. Soon came the return of the travellers and much subsequent commotion. They expressed themselves as opposed to the whole proceeding, yet three of them found that, in their absence, their names had been forged[361] to the document that was passing as a treaty between the Creeks and the Confederate States. The three whose names were forged were, Ok-ta-ha-hassee Harjo (better known subsequently as "Sands" and who became in reconstruction days the great rival of Samuel Checote for the office of principal chief), Tallise Fixico, and Mikko Hutke. It is a matter of dispute what course Opoeth-le-yo-ho-la had taken[362] in the treaty conference but not what he did afterwards; for he became the intrepid leader of the so-called "Loyal Creeks" and the foremost of the "Refugees."