Part 17

[Footnote 320: In a letter from Agent Meigs to the Secretary of War, dated June 2, 1817, Major Lovely is spoken of as having been agent residing with the Cherokees on the Arkansas. He had been an officer of the Virginia line throughout the Revolution and participated in the capture of Burgoyne. He had lived some time in the family of President Madison's father, and went to Tennessee at an early day, whence (after living many years among the Cherokees) he removed with the emigrant party to the Arkansas. In a letter to the Hon. John Cocke from the Secretary of War, December 15, 1826, it is, however, stated that Major Lovely was a factor or trader in the Arkansas country, who took an active part in the preliminary negotiations that led finally to the conclusion of the treaty with the Osages of September 25, 1818. It also appears from the same letter that the estimated area of Lovely's purchase was 7,392,000 acres, and that when the west boundary line of the Cherokees was run, in 1825, it was found that 200 square miles of Lovely's purchase were included within its limits.]

[Footnote 321: Secretary of War to Arkansas Cherokee delegation in Washington, February 12, 1823.]

[Footnote 322: Secretary of War to Arkansas Cherokee delegation in Washington, October 8, 1821.]

[Footnote 323: United States Statutes at Large, Vol. IV, p. 153.]

[Footnote 324: United States Statutes at Large, Vol. IV, p. 40.]

[Footnote 325: April 3, 1827.]

[Footnote 326: Letter of T. L. McKenney to Secretary of War, March 18, 1828.]

[Footnote 327: March 27, 1828.]

[Footnote 328: April 11, 1828.]

[Footnote 329: The areas here given by the State authorities were largely below the quantity actually contained within the limits of the cessions within the States of Georgia, North Carolina, and Tennessee, as will be seen by a glance at the table of such areas on page 378.]

[Footnote 330: United States Statutes at Large, Vol. VII, p. 311.]

[Footnote 331: Letter of Secretary of War to Western Cherokee delegation. May 17, 1828.]

[Footnote 332: Letter of Sub-Agent Brearly to Secretary of War, September 27, 1828.]

[Footnote 333: May 28, 1828.]

[Footnote 334: Letter of T. L. McKenney to Secretary of War, January 21, 1830.]

TREATY CONCLUDED FEBRUARY 14, 1833.--PROCLAIMED APRIL 12, 1834.[335]

_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._

MATERIAL PROVISIONS.

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.

HISTORICAL DATA.

CONFLICTING LAND CLAIMS OF CREEKS AND CHEROKEES WEST OF THE MISSISSIPPI.

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.

PURCHASE OF OSAGE HALF-BREED RESERVES.

Prior[340] 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 1825[341] 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]

PRESIDENT JACKSON REFUSES TO APPROVE THE TREATY OF 1834.

On the 10th of February, 1834, George Vashon, agent for the Western Cherokees, negotiated a treaty with them[343] 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]

[Footnote 335: United States Statutes at Large, Vol. VII, p. 414.]

[Footnote 336: United States Statutes at Large, Vol. VII, p. 286.]

[Footnote 337: See Creek treaty of 1833, United States Statutes at Large, Vol. VII, p. 417.]

[Footnote 338: United States Statutes at Large, Vol. VII, p. 311.]

[Footnote 339: See preamble to Creek treaty of February 14, 1833, United States Statutes at Large, Vol. VII, p. 417.]

[Footnote 340: In March, 1832.]

[Footnote 341: United States Statutes at Large, Vol. VII, p. 240.]

[Footnote 342: United States Statutes at Large, Vol. VII, p. 478.]

[Footnote 343: See Indian Office files.]

[Footnote 344: See Indian Office records.]

TREATY CONCLUDED DECEMBER 29, 1835; PROCLAIMED MAY 23, 1836.

_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]_

MATERIAL PROVISIONS.

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 $33-1/3 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.