Part 23

"_June 10, 1786._--In the treaty of this date with the Chickasaws the lands allotted them eastwardly 'shall be the lands allotted to the Choctaws and Cherokees to live and hunt on.' In the conference which took place between the commissioners of the United States and the Chickasaws and Cherokees, it was apparent that their claims conflicted with each other on the ridge dividing the waters of Cumberland from those of Duck River and around to the Chickasaw Oldtown Creek on Tennessee, thence southwardly, leaving the mountains above the Muscle Shoals on the south side of the river, and to a large stone or flat rock, where the Choctaw line joined with the Chickasaws. The journal of occurrences at the time were lodged with the papers of the old Congress, and probably were transferred to the office of Secretary of State. On the 7th of January, 1806, in a convention between the United States and Cherokees, on the part of the former by Mr. Dearborn, the United States engaged to use their best endeavors to fix a boundary between the Cherokees and Chickasaws, 'beginning at the mouth of Caney Creek, near the lower part of the Muscle Shoals, and to run up the said creek to its head, and in a direct line from thence to the flat stone or rock, the old corner boundary,' the line between the Creeks and Cherokees east of Coosau River.

"In 1802, at the treaty of Fort Wilkinson, it was agreed between the parties that the line was 'from the High Shoals on Apalatche, the old path, leaving Stone Mountain to the Creeks, to the shallow ford on the Chatahoochee.'

"This agreement was in presence of the commissioners of the United States and witnessed by General Pickens and Colonel Hawkins. On the 10th October, 1809, a letter was sent from the Cherokees to the Creeks and received in February in the public square at Tookaubatche, stating the line agreed upon at Fort Wilkinson, and that 'all the waters of Etowah down to the ten islands below Turkeytown these lands were given up to the Cherokees at a talk at Chestoe in presence of the Little Prince, and Tustunnuggee Thlucco Chulioah, of Turkeystown, was the interpreter.'

"In August, 1814, at the treaty of Fort Jackson, the Creeks and Cherokees were invited to settle their claims, and Colonel Meigs was engaged for three or four days in aiding them to do so. The result was they could not agree, but would at some convenient period agree. This was signed by General Jackson, Colonel Hawkins, and Colonel Meigs.

"At the convention with the Creeks, in September, 1815, the Cherokees manifested a sincere desire to settle their boundaries with the Creeks, but the latter first declined and then refused. Tustunnuggee Thlucco, being asked where their boundary was west of Coosau, said there never was any boundary fixed and known as such between the parties, and after making Tennessee the boundary from tradition, and that the Cherokees obtained leave of them to cross it, the policy of the Creeks receiving all destroyed red people in their confederacy, the Cherokees were permitted to come over and settle as low down on the west of Coosau as Hauluthee Hatchee, from thence on the west side of Coosau on all its waters to its source. He has never heard, and he has examined all his people who can have any knowledge on the subject, that the Cherokees had any pretensions lower down Coosau on that side. He does not believe, and he has never heard, there was any boundary agreed upon between them. Being asked by Colonel Hawkins his opinion where the boundary should be, he says it should go up Hauluthee Hatchee, passing a level of good land between two mountains, to the head of Itchau Hatchee, and down the same to Tennessee, about 8 or 9 miles above Nickajack. In the year 1798 the Cherokees had a settlement at the Muscle Shoals, Doublehead and Katagiskee were the chiefs, and the Creeks had a small settlement above the Creek path on Tennessee. The Cherokee settlement extended southwardly from the shoal probably a mile and a half. The principal temporary agent for Indian affairs south of the Ohio was early instructed in 1777 to ascertain the boundary line of the four nations, and instructions were given accordingly by him to Mr. Dinsmore and Mr. Mitchell to aid in doing it. Several attempts were made, but all proved abortive, owing to the policy of the Creeks, which was to unite the four nations in one confederacy and the national affairs of all to be in a convention to be held annually among the Creeks, where the speaker for the Creeks should preside.

"At every attempt made among the Creeks when these conventions met, the answer was, 'We have no dividing lines, nor never had, between us. We have lines only between us and the white people, our neighbors.' At times, when the subject was discussed in the convention of the Creeks, they claimed Tombigby, called by them Choctaw River (Choctau Hatchee), the boundary line between them and the Choctaws. Tustunneggee Hopoie, brother of the old Efau Hajo (mad dog), who died at ninety-six years of age, and retained strength of memory and intelligence to this great age, reported publicly to the agent, 'When he was a boy his father's hunting camp was at Puttauchau Hatchee (Black Warrior).' His father had long been at the head of the Creeks, and always told him 'Choctaw River was their boundary with the Choctaws.' He never saw a Choctaw hunting camp on this side the Black Warrior.

"A true copy from the original.

"PHIL. HAWKINS, JR., "_Ast. A. I. A._"]

[Footnote 392: Letter of Secretary of War to Governor Lumpkin, of Georgia, March 12, 1833.]

[Footnote 393: March 21, 1833.]

[Footnote 394: Commissioner of Indian Affairs to Agent Montgomery, April 22, 1833.]

[Footnote 395: Secretary of War to Governor Lumpkin, of Georgia, January 28, 1834.]

[Footnote 396: March 28, 1834.]

[Footnote 397: May 1, 1834.]

[Footnote 398: March 3, 1834.]

[Footnote 399: Letter of John Ross and others to Secretary of War, inclosing protest, May 24, 1834.]

[Footnote 400: Letter of Hon. J. H. Eaton to John Ross, May 26, 1834.]

[Footnote 401: May 29, 1834.]

[Footnote 402: Secretary of War to governor of Georgia, July 8, 1834.]

[Footnote 403: May 17, 1834.]

[Footnote 404: The Ross delegation was composed of John Ross, R. Taylor, Daniel McCoy, Samuel Gunter, and William Rogers. The Ridge delegation consisted of John Ridge, William A. Davis, Elias Boudinot, A. Smith, S. W. Bell, and J. West.]

[Footnote 405: February 11, 1835.]

[Footnote 406: Memorandum delivered by Secretary of War to Senator King, of Georgia, February 28, 1835.]

[Footnote 407: Memorandum delivered by Secretary of War to Senator King, of Georgia, February 28, 1835.]

[Footnote 408: March 16, 1835.]

[Footnote 409: September 10, 1835.]

[Footnote 410: September 26, 1835.]

[Footnote 411: Senate Document 120, Twenty-fifth Congress, second session, p. 124.]

[Footnote 412: See proceedings of council.]

[Footnote 413: National Intelligencer, May 22, 1838.]

[Footnote 414: Schermerhorn to Commissioner of Indian Affairs, December 31, 1835.]

[Footnote 415: See report of proceedings of council.]

[Footnote 416: National Intelligencer, May 22, 1838.]

[Footnote 417: United States Statutes at Large, Vol. VII, p. 488.]

[Footnote 418: In addition to these sums, an appropriation of $1,047,067 was made by the act of June 13, 1838, in full of all objects specified in the third supplemental article and for the one year's subsistence provided for in the treaty.]

[Footnote 419: Commissioner of Indian Affairs to John Ross, March 9, 1836.]

[Footnote 420: Hon. P. M. Butler, in a confidential letter to the Commissioner of Indian Affairs, March 4, 1842, says: "The treaty, as the Department is aware, was sustained by the Senate of the United States by a majority of one vote."]

[Footnote 421: United States Statutes at Large, Vol. VII, p. 478 _et seq._]

[Footnote 422: July 25, 1836.]

[Footnote 423: July 30, 1836.]

[Footnote 424: The Secretary of War, October 12, 1836, directed General Wool to inform Mr. Ross that the President regarded the proceedings of himself and associates in council as in direct contravention of the plighted faith of their people, and a repetition of them would be considered as indicative of a design to prevent the execution of the treaty even at the hazard of actual hostilities, and they would be promptly repressed.]

[Footnote 425: October 17, 1836.]

[Footnote 426: Senate confidential document, April 12, 1836, p. 200.]

[Footnote 427: National Intelligencer, May 22, 1838.]

[Footnote 428: National Intelligencer, May 22, 1838.]

[Footnote 429: June 3, 1837.]

[Footnote 430: July 15, 1837.]

[Footnote 431: September 25, 1837.]

[Footnote 432: September 30, 1836.]

[Footnote 433: October 25, 1836.]

[Footnote 434: Secretary of War to Andrew Jackson, August 21, 1837.]

[Footnote 435: October 16, 1837.]

[Footnote 436: The amounts adjudicated and paid by this commission, as shown by the records of the Indian Office (see Commissioner of Indian Affairs' letter of March 7, 1844), were as follows:

1. For improvements $1,683,192 77-1/2

2. Spoliations 416,306 82-1/2

3. National debts due to Cherokees 19,058 14

4. National debts due to citizens of the United States 51,642 87

5. Reservations 159,324 87

_________________

Total 2,329,524 86

(The figures as given here are correctly copied from the commissioner's letter, but there is an obvious error either in the footing or in the items.)]

[Footnote 437: January 3, 1837.]

[Footnote 438: December 1, 1836.]

[Footnote 439: This census showed a distribution of the Cherokee population, according to State boundaries, as follows:

+-----------------+----------+-------+--------------------+ | | | |Whites intermarried | | States. |Cherokees.|Slaves.| with | | | | | Cherokees. | +-----------------+----------+-------+--------------------+ |In Georgia | 8,946| 776| 68| |In North Carolina| 3,644| 37| 22| |In Tennessee | 2,528| 480| 79| |In Alabama | 1,424| 299| 32| | +----------+-------+--------------------+ | Total | 16,542| 1,592| 201| +-----------------+----------+-------+--------------------+ ]

[Footnote 440: Secretary of War to Col. William Lindsay, May 8, 1837.]

[Footnote 441: March 26, 1838.]

[Footnote 442: Speech in reply to Mr. Halsey, of Georgia, January 2, 1838.]

[Footnote 443: May 22, 1838.]

[Footnote 444: National Intelligencer, June 8, 1838.]

[Footnote 445: Secretary of War to James K. Polk, Speaker of the House of Representatives, January 8, 1838.]

[Footnote 446: General Macomb to General Scott, April 6, 1838.]

[Footnote 447: May 10, 1838.]

[Footnote 448: May 18, 1838.]

[Footnote 449: Annual report of Commissioner of Indian Affairs, November 25, 1838.]

[Footnote 450: Proposal was accepted July 25; emigration to begin September 1 and end before October 20, 1838.]

[Footnote 451: The number, according to the rolls of John Ross, who removed under his direction, was 13,149. According to the rolls of Captain Stevenson, the agent who received them on their arrival West, there were only 11,504, and, according to Captain Page, the disbursing officer, there were 11,721. Mr. Ross received on his settlement with Captain Page subsequent to the removal, $486,939.50-1/4, which made a total payment to Ross by the Government on account of Cherokee removals of $1,263,338.38. (Letter of Commissioner Indian Affairs, June 15, 1842). See, also, Commissioner of Indian Affairs to Commissioner of Land Office, January 9, 1839.]

[Footnote 452: Commissioner of Indian Affairs to Secretary of War, September 12, 1839.]

[Footnote 453: April 21, 1840.]

[Footnote 454: Report of Commissioner of Indian Affairs for 1839.]

[Footnote 455: Letter of John Ross to General Arbuckle, June 24, 1839.]

[Footnote 456: June 22, 1839.]

[Footnote 457: Agent Stokes to Secretary of War, June 24, 1839.]

[Footnote 458: July 5, 1839.]

[Footnote 459: August 9, 1839.]

[Footnote 460: August 27, 1839.]

[Footnote 461: August 23, 1839.]

[Footnote 462: July 7, 1839.]

[Footnote 463: July 10, 1839.]

[Footnote 464: August 21, 1839.]

[Footnote 465: September 4, 1839, _et seq._]

[Footnote 466: November 9, 1839.]

[Footnote 467: January 22, 1840.]

[Footnote 468: April 21, 1840.]

[Footnote 469: Coody, in an interview with the Secretary of War, persisted in considering the murders of Boudinot and the Ridges as justifiable. General Arbuckle's letter of notification bore date April 21, 1840.]

[Footnote 470: Commissioner of Indian Affairs to Maj. William Armstrong, August 26, 1840.]

[Footnote 471: September 22, 1841.]

[Footnote 472: March 4, 1842.]

[Footnote 473: September 9, 1842.]

[Footnote 474: November 8, 1842.]

TREATY CONCLUDED AUGUST 6, 1846; PROCLAIMED AUGUST 17, 1846.[475]

_Held at Washington, D. C., between Edmund Burke, William Armstrong, and Albion K. Parris, commissioners on behalf of the United States, and delegates representing each of the three factions of the Cherokee Nation, known, respectively, as the "Government party," the "Treaty party," and the "Old Settler party."_

MATERIAL PROVISIONS.

The preamble recites the difficulties that have long existed between the different factions of the nation, and because of the desire to heal those differences and to adjust certain claims against the United States growing out of the treaty of 1835 this treaty is concluded, and provides:

1. The lands now occupied by the Cherokee Nation shall be secured to the whole Cherokee people for their common use and benefit. The United States will issue a patent therefor to include the 800,000-acre tract and the western outlet. If the Cherokees become extinct or abandon the land it shall revert to the United States.

2. All difficulties and differences heretofore existing between the several parties of the Cherokee Nation are declared to be settled and adjusted. A general amnesty for all offenses is declared and fugitives may return without fear of prosecution. Laws shall be passed for the equal protection of all. All armed police or military organizations shall be disbanded and the laws executed by civil process. Trial by jury is guaranteed.

3. The United States agree to reimburse to the Cherokee Nation all sums unjustly deducted for claims, reservations, expenses, etc., from the consideration of $5,000,000 agreed to be paid under the treaty of 1835 to the Cherokees for their lands, and to distribute the same as provided in the ninth article of that treaty.

4. The board of commissioners recently appointed by the President have declared that under the provisions of the treaty of 1828 the "Old Settlers," or Western Cherokees, had no exclusive title to the lands ceded by that treaty as against the Eastern Cherokees, and that by the equitable operation of that treaty the former acquired a common interest in the Cherokee lands east of the Mississippi. This interest of the "Old Settlers" was unprovided for by the treaty of 1835. It is therefore agreed that a sum equal to one-third of the residuum of per capita fund left after a proper adjustment of the account for distribution under the treaty of 1835 shall be paid to said "Old Settlers," and that in so doing, in estimating the cost of removal and subsistence, it shall be based upon the rate fixed therefor in the eighth article of the treaty of 1835. In consideration of the foregoing the "Old Settlers" release to the United States all interest in the Cherokee lands east of the Mississippi and all claim to exclusive ownership in the Cherokee lands west of the Mississippi.

5. The per capita allowance to the "Western Cherokees," or "Old Settlers," upon the principle above stated, shall be held in trust by the United States and paid out to each individual or head of family or his representative entitled thereto in person. The President of the United States shall appoint five persons as a committee from the "Old Settlers" to determine who are entitled to the per capita allowance.

6. The United States agree to pay the "Treaty party" the sum of $115,000 for losses and expenses incurred in connection with the treaty of 1835, of which $5,000 shall be paid to the legal representatives or heirs of Major Ridge, $5,000 to those of John Ridge, and $5,000 to those of Elias Boudinot. The remainder shall be distributed among those who shall be certified by a committee of the "Treaty party" as entitled, provided that the present delegation of the party may deduct $25,000, to be by them applied to the payment of claims and expenses. And if the said sum of $100,000 should be insufficient to pay all claims for losses and damages, then the claimants to be paid pro rata in full satisfaction of said claims.

7. All individuals of the "Western Cherokees" who have been dispossessed of salines, the same being their private property, shall be compensated therefor by the Cherokee Nation, upon an award to be made by the United States agent and a Cherokee commissioner, or the salines shall be returned to the respective owners.

8. The United States agree to pay the Cherokee Nation $2,000 for a printing press, etc., destroyed; $5,000 to be equally divided among all whose arms were taken from them previous to their removal West by order of an officer of the United States, and $20,000 in lieu of all claims of the Cherokee Nation, as a nation, prior to the treaty of 1835, except lands reserved for school funds.

9. The United States agree to make a fair and just settlement of all moneys due to the Cherokees and subject to the per capita division under the treaty of December 29, 1835. This settlement to embrace all sums properly expended or charged to the Cherokees under the provisions of said treaty, and which sums shall be deducted from the sum of $6,647,067. The balance found due to be distributed per capita among those entitled to receive the same under the treaty of 1835 and supplement of 1836, being those residing east of the Mississippi River at that date.

10. Nothing herein shall abridge or take away any rights or claims which the Cherokees _now_ residing in States east of the Mississippi River had or may have under the treaty of 1835 and supplement of 1836.

11. It is agreed that the Senate of the United States shall determine whether the amount expended for one year's subsistence of the Cherokees, after their removal under the treaty of 1835 and supplement of 1836, is properly chargeable to the United States or to the Cherokee funds, and, if to the latter, whether such subsistence shall be charged at a sum greater than $33-1/3 per head; also, whether the Cherokees shall be allowed interest upon the sums found to be due them; and, if so, from what date and at what rate.

12. (The twelfth article was struck out by the Senate.)

13. This treaty to be obligatory after ratification by the Senate and President of the United States.

HISTORICAL DATA.

CHEROKEES DESIRE A NEW TREATY.

In the spring of 1844 a delegation headed by John Ross arrived in Washington. In a communication[476] to the Secretary of War they inclosed a copy of a letter addressed to them by President Tyler on the 20th of September, 1841, previously alluded to, promising them a new treaty to settle all disputes arising under the treaty of 1835. They advised the Secretary of their readiness to enter upon the negotiation of the promised treaty, and submitted[477] a statement of the salient points of difference to be adjudicated, involving (1) a fair and just indemnity to be paid to the Cherokee Nation for the country east of the Mississippi from which they were forced to remove; (2) indemnity for all improvements, ferries, turnpike roads, bridges, etc., belonging to the Cherokees; (3) indemnity for spoliations committed upon all other Cherokee property by troops and citizens of the United States prior and subsequent to the treaty of 1835; (4) that a title in absolute fee-simple to the country west of the Mississippi be conveyed to the Cherokee Nation by the United States; (5) that the political relations between the Cherokee Nation and the United States be specifically defined; (6) that stocks now invested by the President for the Cherokee Nation be guaranteed to yield a specified annual income, and (7) that provision be made for those Cherokees residing east of the Mississippi who should evince a desire to emigrate to the Cherokee country west of that river.

FEUDS BETWEEN THE ROSS, TREATY, AND OLD SETTLER PARTIES.

At this period delegations representing the anti-Ross parties were also in Washington, and their animosities, coupled with the frequent and unsavory reports of the events happening in the Cherokee country, determined the President to conclude no new treaty until the true cause was ascertained and the responsibility fixed for all this turbulence and crime.[478] The Old Settler and the Treaty parties alleged that grievous oppressions were practiced upon them by the Ross party, insomuch that they were unable to enjoy their liberty, property, or lives in safety, or to live in peace in the same community. The Old Settler delegation alleged that the act of union, by virtue of which their government was superseded and they were subjected to the constitution and laws of the Ross party, was never authorized or sanctioned by the legal representatives of their people. _Per contra_, the Ross delegation alleged that the Old Settler and the Treaty parties enjoyed the same degree of security and the same fullness of rights that any other portion of the nation enjoyed, and that the alleged dissatisfaction was confined to a few restless and ambitious spirits whose motto was "rule or ruin."

_Commissioners appointed to inquire into Cherokee feuds._--In consequence of his determination, as above stated, the President appointed General R. Jones, Col. R. B. Mason, and P. M. Butler commissioners, with instructions[479] to proceed to the Cherokee country and ascertain if any considerable portion of the Cherokee people were arrayed in hostile feeling toward those who ruled the nation; whether a corresponding disposition and feeling prevailed among the majority who administered the government toward the minority; the lengths of oppression, resistance, and violence to which the excitement of each against the other had severally led the opposing parties, and whether the discontent was of such extent and intensity among the great mass of the Old Settler and Treaty parties as to forbid their living peaceably together under the same government with the Ross party. This commission convened at Fort Gibson on the 16th of November,[480] but their labors resulted in nothing of practical benefit to the sorely distressed Cherokees.

DEATH OF SEQUOYAH OR GEORGE GUESS.

Sequoyah or George Guess, the inventor of the Cherokee alphabet, removed to the country west of the Mississippi long anterior to the treaty of 1835,[481] and was for several years one of the national council of the Western Cherokees.

In the year 1843 he left his home for Mexico in quest of several scattered bands of Cherokees who had wandered off to that distant region, and whom it was his intention to collect together with a view to inducing them to return and become again united with their friends and kindred.