Part 14

The salient points of this proposition were that the Cherokees should make a cession of land in proportion to the estimated number of their nation who had already removed or enrolled themselves for removal to the Arkansas; that the United States preferred the cession to be made in Tennessee and Georgia, and that in the latter State it should be as near and convenient to the existing white settlements as was possible; that the reservation which the Cherokees had expressed a desire to make for the benefit of a proposed school fund should be located within the limits of Alabama Territory, inasmuch as the cession to be made in Georgia would, under the provisions of the act of Congress of 1802, belong to that State, and the lands covering the proposed cession in Tennessee would be subject to location by North Carolina military land warrants. Neither was such school reservation to constitute any portion of the land which the Cherokees were to cede in conformity to the principle of exchange embodied in the first paragraph. The United States would continue to extend its protection to both branches of the Cherokee people, but those remaining east of the Mississippi, having expressed a desire that the lands retained by them should be absolutely guaranteed from any danger of future cession, were informed that in order to secure such guarantee it was indispensable that the cessions they were about to make should be ample, and that the portion of territory reserved by them should not be larger than was essential to their wants and convenience. The Secretary reminded them that should a larger quantity be retained it would not be possible, by any stipulation in the treaty, to prevent future cessions; that so long as they retained more land than was necessary or convenient for themselves they would feel inclined to sell and the United States to purchase. He commented on the fact that they were rapidly becoming like the white people, and could not longer live by hunting, but must work for their subsistence. In their new condition of life far less land would be essential to their happiness. Their great object should be to hold their land by severalty titles and to gradually adopt the manners and laws of life which prevailed among their white neighbors. It was only thus that they could be prosperous and happy, and neglect to accept and profit by the situation would inevitably result in their removal or extinction.

The question as to the area of territory that should be ceded as the equitable proportion of the Arkansas Cherokees formed the subject of much dispute. The Eastern Cherokees denied the accuracy of the emigration roll of Governor McMinn, and asserted that, instead of 5,291 emigrants, as stated by him, there had actually been not exceeding 3,500, while the non-emigrant portion of the nation they gave as numbering 12,514, or more than three-fourths of the entire community.[259]

It being impossible to reconcile these radical differences of estimate and the Indians becoming wearied and discouraged with the persistent importunities of the United States officials, they consented to the cession of those tracts of country naively described in the treaty of February 27, 1819,[260] as "_at least as extensive_" as that to which the United States was entitled under the principles and provisions of the treaty of 1817. These cessions were made, as recited in the preamble to the treaty, as the commencement of those measures necessary to the civilization and preservation of their nation, and in order that the treaty of July 8, 1817, might, without further delay or the trouble or expense of taking the census therein provided for, be finally adjusted. It was also agreed that the distribution of annuities should be made in the proportion of two to one in favor of the Eastern Cherokees (it being assumed that about one-third of the nation had gone west), with the proviso that if the Arkansas Cherokees should offer formal objection to this ratio within one year after the ratification of the treaty, then a census, solely for the purpose of making a fair distribution of the annuity, should be taken at such time and in such manner as the President of the United States should designate. All leases of any portion of the territory reserved to the Cherokees were declared void, and the removal of all intruders upon their lands was promised, to which latter end an order was issued requiring such removal to take place on or before July 1, 1819.

Thus was concluded the treaty of February 27, 1819, which was promptly and favorably acted upon by the Senate and ratified and proclaimed by the President on the 10th of March following. The gist of such provisions of importance as are not detailed in these historical notes will be found by reference to the abstract preceding them.

Immediately upon the approval of the treaty by the Senate, the Secretary of War notified Governor McMinn[261] of the fact, directing him to give no further encouragement to emigration to the Arkansas, but to proceed at once to wind up the business under the treaty of 1817.

_Survey of boundaries._--Preparations were at once made for surveying and marking the lines of the cessions. Hon. Wilson Lumpkin, who was engaged in running the line between East Florida and the State of Georgia, was directed[262] to suspend that work, and designated to survey the line of cession, commencing at the point where the Unicoi Turnpike crossed the Blue Ridge, and thence to the nearest main source of the Chestatee, and also to lay off the individual reservations that should be selected within the State of Georgia.

The following day[263] Robert Houston was appointed to run the line of the cession within the State of Tennessee, commencing on the Highwassee River about 2 miles above Highwassee Old Town, as well as to survey the individual reservations within that State, and also the tracts reserved in North Carolina and Alabama Territory.

Mr. Houston performed his services as a surveyor to the satisfaction of all parties;[264] but in running the line from the Unicoi Turnpike crossing of the Blue Ridge to the nearest main source of the Chestatee, a dispute arose between Mr. Lumpkin and the Cherokees as to which was the nearest main source of that river, the Frogtown or the Tessentee Fork. The surveyor ran the line to the source of the first named fork, while the Indians insisted that the latter was the proper stream, and demanded a re-examination of the survey. Agent Meigs having, however, reported[265] in favor of the correctness of the survey, it was allowed to stand.[266]

STATUS OF CERTAIN CHEROKEES.

Early in the year 1820[267] complaints began to arise as to the status of those Cherokees who had made their election to remove to the Arkansas country but had subsequently concluded to remain east. These, it was stated, numbered 817, and they found themselves placed in rather an anomalous situation. Their proportion of the Cherokee national domain had been ceded to the United States by the treaties of 1817 and 1819. Their share of annuities was being paid, under the treaty of 1819, to the Cherokees of the Arkansas. Their right to individual reservations under either treaty was denied, and they were not even allowed to vote, hold office, or participate in any of the affairs of the nation.

In this condition they soon became an element of much irritation in the body politic of the tribe. The Cherokee authorities urged that they should be furnished with rations and transportation to their brethren in the West, whither they were now willing to remove, but the Secretary of War instructed Agent Meigs[268] that emigration to the Arkansas under the patronage of the Government had ceased, and that those Cherokees who had enrolled themselves for removal but had not yet gone, as well as all others thereafter determining to go, must do so at their own expense.

[Footnote 242: United States Statutes at Large, Vol. VII, p. 195.]

[Footnote 243: May 8, 1818.]

[Footnote 244: Secretary of War to Reuben Lewis, United States Indian agent, May 16, 1818.]

[Footnote 245: May 16 to 24, inclusive.]

[Footnote 246: July 22.]

[Footnote 247: United States Statutes at Large, Vol. VII, p. 156.]

[Footnote 248: Letter of Secretary of War to Capt. William Bradford, September 9, 1818.]

[Footnote 249: Secretary of War to Agent Lewis, July 22, 1819.]

[Footnote 250: Field notes and diagram on file in Indian Office.]

[Footnote 251: October 6, 1818.]

[Footnote 252: July 29, 1818.]

[Footnote 254: December 29, 1818.]

[Footnote 253: November 13, 1818.]

[Footnote 255: November 29, 1818.]

[Footnote 256: December 19, 1818.]

[Footnote 257: February, 1819.]

[Footnote 258: February 11, 1819.]

[Footnote 259: Cherokee delegation to Secretary of War, February 17, 1819.]

[Footnote 260: United States Statutes at Large, Vol. VII, p. 195.]

[Footnote 261: March 6, 1819.]

[Footnote 262: March 11, 1819.]

[Footnote 263: March 12, 1819.]

[Footnote 264: Mr. Houston began his survey at the point where the first hill closes in on Hiwassee River, which he found to be 2-1/2 miles above Hiwassee Old Town. He also states in his report that he found no ridge dividing the waters of Hiwassee from those of Little River. This line from the Hiwassee River to the Tennessee River at Talassee was 46 miles and 300 poles in length. It was begun May 28 and completed June 12, 1819. The line from the junction of Cowee and Nauteyalee Rivers to the Blue Ridge was begun June 12 and completed June 18, 1819, and was 36 miles long. His report, with accompanying map, was communicated to the Secretary of War with letter dated July 30, 1819. A copy of the field notes may be found in American State Papers, Indian Affairs, Vol. II, pp. 192 and 193.]

[Footnote 265: July 24, 1820.]

[Footnote 266: Secretary of War to Agent Meigs, August 14, 1820.]

[Footnote 267: February 9. See letter of Return J. Meigs to Secretary of War.]

[Footnote 268: June 15, 1820.]

TREATY CONCLUDED MAY 6, 1828.--PROCLAIMED MAY 28, 1828.[269]

_Held at Washington City, D. C., between James Barbour, Secretary of War, specially authorized therefor by the President of the United States, and the chiefs and headmen of the Cherokee Nation west of the Mississippi._

MATERIAL PROVISIONS.

The preamble recites the desire of the United States to secure to the Cherokees, both east and west of the Mississippi, a permanent home, "that shall never in all future time be embarrassed by having extended around it the lines or placed over it the jurisdiction of a Territory or State, nor be pressed upon by the extension in any way of any of the limits of any existing Territory or State."

It also assumes that their actual surroundings, both east and west of such river, were unadapted to the accomplishment of such a purpose, and therefore the following articles of agreement were made:

1. The western boundary of Arkansas shall be * * * viz: A line shall be run commencing on Red River at the point where the Eastern Choctaw line strikes said river, and run due north with said line to the river Arkansas; thence in a direct line to the southwest corner of Missouri.

2. The United States agree to possess the Cherokees, and to guarantee it to them forever, * * * of seven million of acres of land, to be bounded as follows, viz: Commencing at that point on Arkansas River where the eastern Choctaw boundary lines strikes said river, and running thence with the western line of Arkansas, as defined in the foregoing article, to the southwest corner of Missouri, and thence with the western boundary line of Missouri till it crosses the waters of Neasho, generally called Grand River; thence due west to a point from which a due-south course will strike the present northwest corner of Arkansas Territory; thence continuing due south on and with the present western boundary line of the Territory to the main branch of Arkansas River; thence down said river to its junction, with the Canadian River, and thence up and between the said rivers Arkansas and Canadian to a point at which a line running north and south from river to river will give the aforesaid seven million of acres.

In addition to the seven millions of acres thus provided for and bounded, the United States 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 the above described limits and as far west as the sovereignty of the United States and their right of soil extend.

3. The United States agree to survey the lines of the above cession

4. The United States agree to appraise and pay the value of all Cherokee improvements abandoned by the latter in their removal; also to sell the property and improvements connected with the agency, for the erection of a grist and saw mill in their new home.

5. The United States agree to pay the Cherokees $50,000 as the difference in value between their old and their new lands; also an annuity for three years of $2,000 to repay cost and trouble of going after and recovering stray stock; also $8,760 in full for spoliations committed on them by the Osages or citizens of the United States; also $1,200 for losses sustained by Thomas Graves, a Cherokee chief; also $500 to George Guess, the discoverer of the Cherokee alphabet, as well as the right to occupy a saline; also an annuity of $2,000 for ten years to be expended in the education of Cherokee children; also $1,000 for the purchase of printing press and type; also, the benevolent society engaged in instructing Cherokee children to be allowed the amount expended by it in erection of buildings and improvements; also, the United States to release the indebtedness of the Cherokees to the United States factory to an amount not exceeding $3,500.

6. The United States agree to furnish the Cherokees, when they desire it, a system of plain laws and to survey their lands for individual allotment.

7. The Cherokees agree within fourteen months to leave the lands in Arkansas assigned them by treaties of January 8, 1817, and February 27, 1819.

8. Each head of a Cherokee family east of the Mississippi desiring to remove to the country described in the second article hereof to be furnished by the United States with a good rifle, a blanket, a kettle, five pounds of tobacco, and compensated for all improvements he may abandon; also a blanket to each member of his family. The United States to pay expenses of removal and to furnish subsistence for one year thereafter. Each head of family taking with him four persons to receive $50.

9. The United States to have a reservation 2 by 6 miles at Fort Gibson, with the right to construct a road leading to and from the same.

10. Capt. James Rogers to have $500 for property lost and services rendered to the United States.

11. Treaty to be binding when ratified.

NOTE.--The Senate consented to the ratification of this treaty with the proviso that the "western outlet" should not extend north of 36°, nor to interfere with lands assigned or to be assigned to the Creeks; neither should anything in the treaty be construed to assign to the Cherokees any lands previously assigned to any other tribe.

HISTORICAL DATA.

RETURN J. MEIGS AND THE CHEROKEES.

Return J. Meigs had for nearly twenty years[270] occupied the position of United States agent for the Cherokee Nation. As a soldier of the Revolutionary war he had marched with Arnold through the forests of Maine and Canada to the attack on Quebec in 1775.[271]

He had also, by his faithful, intelligent, and honest administration of the duties of his office as Indian agent, secured the perfect confidence of his official superiors through all the mutations of administration. He had acquired a knowledge of and familiarity with the habits, character, and wants of the Cherokees such as was perhaps possessed by few, if indeed by any other man.

Any suggestions, therefore, that he might make concerning the solution of the Cherokee problem were deserving of grave consideration. His views were submitted in detail upon the condition, prospects, and requirements of the Cherokee Nation in a communication to the Secretary of War.[272] To his mind the time had arrived when a radical change in the policy of managing their affairs had become essential. Ever since the treaty of 1791 the United States, in pursuance of a policy therein outlined for leading the Cherokees toward the attainment of a higher degree of civilization, in becoming herdsmen and cultivators instead of hunters, had been furnishing each year a supply of implements for husbandry and domestic use. In consequence a respectable proportion of that nation had become familiarized with the use of the plow, spade, and hoe. Many of their women had learned the art of spinning and weaving, and in individual instances considerable progress had been made in the accumulation of property. Agent Meigs now thought that the point had been reached where the Cherokee people should begin to fight their own battles of life, and that any further contributions to their support, either in the shape of provisions or tools, would have only a tendency to render them more dependent upon the Government and less competent to take care of themselves. Those who were already advanced in the arts of civilized life should be the tutors of the more ignorant. They possessed a territory of perhaps 10,000,000 acres of land, principally in the States of Georgia, North Carolina, and Tennessee, for the occupation of which they could enumerate little more than 10,000 souls or 2,000 families. If they were to become an agricultural and pastoral people, an assignment of 640 acres of land to each family would be all and more than they could occupy with advantage to themselves. Such an allotment would consume but 1,280,000 acres, leaving more than 8,000,000 acres of surplus land which might and ought to be sold for their benefit, and the proceeds (which he estimated at $300,000, to be paid in fifty annual installments) applied to their needs in the erection of houses, fences, and the clearing and breaking up of their land for cultivation. The authority and laws of the several States within whose limits they resided should become operative upon them, and they should be vested with the rights, privileges, and immunities of citizens of those States. These views met with the concurrence of the administration, and would possibly have been carried into effect but for the intense hostility thereto of not only the unprogressive element among the Cherokees themselves but of the officials and people of the States most interested, who could not view with complacency the permanent occupation of a single acre of land within their limits by the aboriginal owners.

TENNESSEE DENIES THE VALIDITY OF CHEROKEE RESERVATIONS.

About this time trouble arose between the authorities of the State of Tennessee and the surveyor (Robert Houston) who had been intrusted with the duty of laying off such individual reservations as should be taken under the provisions of the treaties of 1817 and 1819. Mr. Houston reported to the Secretary of War that the legislature of Tennessee had refused to confirm all such reservations taken in virtue of the provisions of those treaties subsequent to the 1st of July, 1818, or, in other words, after the time provided for taking the Cherokee census had expired, and desired the opinion and instructions of the Department thereon. The question involved in this dispute was deemed of sufficient importance to secure an official opinion from the Attorney-General prior to directing any further action.[273] An opinion was rendered[274] by Attorney-General Wirt, the substance of which was that the right of taking these reservations having been in the first instance given by the treaty of 1817 until the census should be taken, and the time for taking the census having been, by the acquiescence of both parties to the treaty, kept open until the conclusion of the treaty of February 27, 1819, all the reservations taken prior to this latter date were legal, more especially as they had been ratified by the recognition of them contained in the treaty of 1819. Furthermore, the second article of that treaty, taken in connection with the seventh article, continued the period for taking reservations until the 1st of January, 1820. Mr. Houston was instructed[275] to proceed to lay off the reservations in consonance with this opinion, notwithstanding which the authorities of Tennessee took issue therewith and passed a law providing for the sale of the disputed reserves, whereupon the War Department instructed[276] Agent Meigs to cause one or two test cases to be prepared for trial in the courts.

While on the subject of these reservations it is pertinent to remark that by act of March 3, 1823, Congress appropriated $50,000 to be expended in extinguishing the Indian title to such individual fee simple reservations as were made within the limits of Georgia by the Cherokee treaties of 1817 and 1819 and by the Creek treaties of 1814 and 1821. James Merriwether and Duncan G. Campbell were appointed as commissioners to carry the same into effect. Twenty-two thousand dollars were also appropriated May 9, 1828, to reimburse the State of North Carolina for the amount expended by her authorities in extinguishing Cherokee reservation titles in that State under the treaties of 1817 and 1819.

UNITED STATES AGREE TO EXTINGUISH INDIAN TITLE IN GEORGIA.

By an agreement between the United States and the State of Georgia bearing date April 24, 1802,[277] Georgia ceded to the United States all the lands lying south of Tennessee and west of Chattahoochee River and a line drawn from the mouth of Uchee Creek direct to Nickojack, on the Tennessee River. In consideration of this cession the United States agreed to pay Georgia $1,250,000, and to extinguish the Indian title whenever the same could be done on peaceable and reasonable terms; also to assume the burden of what were known as the Yazoo claims.

_Georgia charges the United States with bad faith._--Ever since the date of this agreement the utmost impatience had been manifested by the Government and the people of the State of Georgia at the deliberate and careful course which had characterized the action of the General Government in securing relinquishment of their lands in that State from the Creeks and Cherokees. Charges of bad faith on the part of the United States, coupled with threats of taking the matter into their own hands, had been published in great profusion by the Georgians. These served only to enhance the difficulties of the situation and to excite a stubborn resistance in the minds of the Indians against any further cessions of territory.

_Report of Congressional committee._--The subject was brought to the attention of Congress through the action of the governor and legislature of Georgia. A select committee was appointed by the House of Representatives, at the first session of the Seventeenth Congress, to take the matter into consideration and to report whether the said articles of agreement between that State and the United States had so far been executed according to the terms thereof, and what were the best means of completing the execution of the same. This committee submitted a report to the House,[278] wherein, after reciting the terms of the agreement, allusion is made to the Creek treaty of 1814, and the opinion expressed that the agreement might have been more satisfactorily complied with by demanding the cession at that treaty of the Creek lands within Georgia's limits, instead of accepting in large measure those within the Territory of Alabama. The Indians were by this action forced, in the opinion of the committee, within the limits of Georgia, instead of being withdrawn therefrom.