Part 24

He did not meet with the success anticipated. Being quite aged, and becoming worn out and destitute, he was unable without assistance to make the return trip to his home. Agent Butler, learning of his condition, reported the fact to the Indian Department[482] and asked that sufficient funds be placed at his disposal for the purpose of sending messengers to bring the old man back. Two hundred dollars were authorized[483] to be expended for the purpose, and Oo-no-leh, a Cherokee, was sent on the errand of mercy, but upon reaching Red River he encountered a party of Cherokees from Mexico who advised him that Guess had died in the preceding July, and that his remains were interred at San Fernando.[484]

OLD SETTLER AND TREATY PARTIES PROPOSE TO REMOVE TO MEXICO.

In the fall of 1845 the bulk of the Old Settler and Treaty parties, having become satisfied that it would be impossible for them to maintain a peaceful and happy residence in the country of their adoption while the influence of John Ross continued potent in their national government, resolved to seek for themselves a new home on the borders of Mexico. A council was therefore held at which a delegation (consisting of forty-three members of the Treaty and eleven of the Old Settler party) was chosen to explore the country to the south and west for a future abode. They rendezvoused[485] at the forks of the Canadian and Arkansas Rivers, and, after electing a captain, proceeded via Fort Washita, crossing the Red River at Coffee's trading house, and following the ridge dividing the waters of Trinity and Brazos to the latter river, which they crossed at Basky Creek. Here they found a small settlement of sixty-three Cherokees, who had moved in the preceding June from a place called by them Mount Clover, in Mexico.

Among their number was found Tessee Guess, the son of George Guess. Leaving Brazos[486] the explorers traveled westward to the Colorado, reaching it at the mouth of Stone Fort Creek,[487] beyond which they proceeded in a southwesterly direction to the San Sabba Creek, at a point about 40 or 50 miles above its mouth. They returned on a line some 60 miles south of their outgoing trip,[488] and with their friends held a council at Dragoon Barracks in the Cherokee Nation.[489] At this meeting it was decided to ask the United States to provide them a home in the Texas country upon their relinquishment of all interest in the Cherokee Nation, or in case of a refusal of this request that the territory of the nation be divided into two parts, and a moiety thereof be assigned to them with the privilege of adopting their own form of government and living under it.

The governor of Arkansas[490] and General Arbuckle[491] both concurred in the conclusions reached by this council, and urged upon the authorities at Washington the necessary legislation to carry the same into effect.

MORE POLITICAL MURDERS.

Shortly after the delegation selected by the foregoing council had proceeded to Washington in the interest of the adoption of the scheme proposed, another epidemic of murder and outrage broke out in the nation. On the 23d of March, Agent McKissick reported to the Indian Department the murder of Stand, a prominent member of the Ross party, by Wheeler Faught, at the instigation of the "Starr boys," who were somewhat noted leaders of the Treaty party. This murder was committed in revenge for the killing of James Starr and others during the outbreak of the preceding November. It was followed[492] by the murder of Cornsilk, another of Ross's adherents, by these same "Starr boys," and six days later the spirit of retaliation led to the killing of Turner, a member of the Treaty party. On the 25th of the same month[493] Ellis, Dick, and Billy Starr were wounded by a band of Ross's Cherokee police, who chased them across the line of Arkansas in the attempt to arrest them for trial before the Cherokee tribunals for the murder of Too-noo-wee two days before. General Arbuckle took them under his protection, and refused to deliver them up for trial to the Cherokee authorities until the latter should take proper steps to punish the murderers of James Starr. Subsequently Baldridge and Sides, of the Ross party, were murdered by Jim and Tom Starr, in revenge for which the light horse police company of the Ross government murdered Billy Ryder, of the Treaty party.[494]

In this manner the excitement was maintained and the outrages multiplied until, on the 28th of August, Agent McKissick reported that since the 1st of November preceding there had been an aggregate of thirty-three murders committed in the Cherokee Nation, nearly all of which were of a political character. The feeling of alarm became so widespread that General Arbuckle was constrained to increase the military force on the frontier by two companies.

NEGOTIATION OF TREATY OF 1846.

While these unhappy events were in progress Major Armstrong, superintendent of Indian affairs, who was in Washington, submitted to the Commissioner of Indian Affairs, at the suggestion of the several Cherokee delegations, a proposition for the appointment of a commissioner clothed with full powers to adjust all difficulties between the various factions of their people.

The Commissioner replied that as the matter was before Congress and would likely receive the speedy attention of that body, no action would be justified by the executive authorities without first being assured that the proposition was founded in good faith and would result in some certain and satisfactory arrangement. He must also have assurance that there existed a firm determination on the part of the Department and of Congress to bring these troubles to a close before the adjournment of the latter body. The Commissioner, however, drew up a memorandum agreement for the signature of the several delegations of Cherokees representing the different factions of the tribe. It provided for the appointment of three commissioners, whose duty it should be to examine into all matters in controversy and adjust the same, and that all parties should abide absolutely by their decision, agreeing to execute and sign such treaty or other instrument of agreement as should be considered necessary to insure the execution of the award of the commissioners.[495] This agreement was duly signed by the members of the several delegations present in Washington, and in pursuance of its provisions President Polk appointed[496] Edmund Burke, William Armstrong, and Albion K. Parris commissioners with the powers and for the purposes above indicated. These commissioners at once entered into communication and negotiation with the three delegations representing the different factions of the Cherokee Nation, which were then in Washington, and the result was the conclusion of the treaty of August 6, 1846,[497] in thirteen articles, making detailed provision for the adjustment of all questions of dispute between the Cherokees themselves and also for the settlement of all claims by the Cherokees against the United States.[498] This treaty, with some slight amendments, was ratified and proclaimed by the President on the 17th of the same month; an abstract of its provisions has already been presented. It was not until this treaty that the Ross party ever consented in any manner to recognize or be bound by the treaty of 1835.[499]

_Objects of the treaty._--The main principle involved in the negotiation of the treaty of 1846 had been the disposition on the part of the United States to reimburse to the Cherokee fund sundry sums which, although not justly chargeable upon it, had been improperly paid out of that fund.[500] In the treaty of 1835 the United States had agreed to pay to the Cherokees $5,000,000 for their lands and $600,000 for spoliations, claims, expenses of removal, etc.[501] By the act of June 12, 1838,[502] Congress appropriated the further sum of $1,047,067 for expenses of removal. As all these sums were for objects expressed in the treaty of 1835, the commissioners who negotiated the treaty of 1846 regarded them as one aggregate sum given by the United States for the lands of the Cherokees, subject to the charges, expenditures, and investments provided for in the treaty. This aggregate sum was appropriated and placed in the Treasury of the United States, to be disposed of according to the stipulations of the treaty. The United States thereby became the trustee of this fund for the benefit of the Cherokee people, and were bound to manage it in accordance with the well known principles of law and equity which regulate the relation of trustee and _cestui que trust_.

_Adjudication of the treaty of 1835._--In order, therefore, to carry out the principle thus established by the treaty of 1846, Congress, by joint resolution, of August 7, 1848,[503] required the proper accounting officers of the Treasury to make a just and fair statement of account with the Cherokee Nation upon that basis. The joint report of the Second Comptroller and Second Auditor was submitted to Congress[504] after a full and thorough examination of all the accounts and vouchers of the several officers and agents of the United States who had disbursed funds appropriated to carry into effect the treaty of 1835, and also of all claims that had been admitted at the Treasury.

The result of this examination showed that there had been paid--

For improvements $1,540,572 27

For ferries 159,572 12

For spoliations 264,894 09

For removal and subsistence and commutation therefor, including $2,765.84 expended for goods for the poorer Cherokees under the fifteenth article of treaty of 1835, and including also necessary incidental expenses of enrolling agents, conductors, commissioners, medical attendance, and supplies, etc. 2,952,196 26

For debts and claims upon the Cherokee Nation 101,348 31

For the additional quantity of land ceded to the nation 500,000 00

For amount invested as the general fund of the nation 500,880 00

____________

The aggregate of which sums is 6,019,463 05

which, being deducted from the sum of 6,647,067 00

____________

agreeably to the directions of the ninth article of the treaty of 1846, left a balance due the Cherokee Nation of 627,603 95

They also reported that there was a further sum of $96,999.31, charged to the general treaty fund, which had been paid to the various agents of the Government connected with the removal of the Indians and which the Cherokees contended was an improper charge upon their fund. The facts as to this item were submitted by the Auditor and Comptroller without recommendation for the decision of the question by Congress, and Congress, admitting the justice of the Cherokee claim, included this sum in the subsequent appropriation of February 27, 1851.[505]

It was also resolved[506] by the United States Senate (as umpire under the treaty of 1846) that the Cherokee Nation was entitled to the sum of $189,422.76 for subsistence, being the difference between the amount allowed by act of June 12, 1838, and the amount actually paid and expended by the United States, and which excess was improperly charged to the treaty fund in the report of the accounting officers of the Treasury just recited. It was further resolved that interest at 5 per cent. should be allowed upon the sums found due the Eastern and Western Cherokees respectively from June 12, 1838. The amount of this award was made available to the Cherokees by Congressional appropriation of September 30, 1850.[507]

_Settlement of claims of "Old Settler" party._--By the fourth and fifth articles of the treaty of 1846,[508] provision is made and a basis fixed for the settlement with that part of the Cherokee Nation known as "Old Settlers" or "Western Cherokees," or, in other words, those who had emigrated under the treaties of 1817,[509] 1819,[510] and 1828,[511] and who were, at the date of the treaty of 1835,[512] an organized and separate nation of Indians, whom the United States had recognized as such by the treaties of 1828 and 1833[513] made with them. In making the treaty of 1835 with the Cherokees east, which provided for their final and complete transfer to the country west, then occupied by the "Western Cherokees," and guaranteed in perpetuity by two treaties, upon considerations alone connected with them, the rights of the latter seem to have been forgotten. The consequences of the influx of the Eastern Cherokees were such that upon their arrival the "Old Settlers" were thrown into a hopeless minority; their government was subverted, and a new one, imported with the emigrants coerced under the treaty of 1835, substituted in its place.

To allay the discontent thus caused in the minds of the "Old Settlers," and to provide compensation to them for the undivided interest which the United States regarded them as owning in the country east of the Mississippi, under the equitable operation of the treaty of 1828, was one of the avowed objects of the treaty of 1846. To ascertain their interest it was assumed that they constituted one-third of the entire nation, and should therefore be entitled to an amount equal to one-third of the treaty fund of 1835, after all just charges were deducted. This residuum of the treaty fund, contemplated by the fourth article of the treaty of 1846, amounted, as first calculated, to $1,571,346.55, which would make the proportionate share of the "Old Settlers" amount to the sum of $523,782.18. The act of September 30, 1850,[514] made provision for the payment to the "Old Settlers," in full of all demands under the provisions and according to the principles established in the fourth article of the treaty of 1846, of the sum of $532,896.96 with interest at 5 per cent. per annum. This was coupled with the proviso that the Indians who should receive the money should first respectively sign a receipt or release acknowledging the same to be in full of all demands under the terms of such article.

A year later,[515] when the "Old Settlers" were assembled for the purpose of receiving this per capita money, although their necessities were such as to compel compliance with the conditions of payment, they entered a written protest against the sum paid being considered in full of all their demands, and appealed to the United States for justice, indicating at the same time in detail wherein they were entitled to receive large additional sums.

For many years this additional claim of the "Old Settlers" practically lay dormant. But toward the close[516] of the year 1875 they held a convention or council at Tahlequah, the capital of the Cherokee Nation, and resolved to prosecute their claim to a "speedy, just, and final settlement." To that end three of their people were appointed commissioners with full power to prosecute the claim, employ counsel, and to do all other necessary and proper things in the premises. The council set apart and appropriated 35 per centum of whatever should be collected to defray all the necessary expenses attendant upon such prosecution and collection. Several subsequent councils have been held about the subject,[517] and the matter continued to be pressed upon the attention of Congress until, by the terms of an act approved August 7, 1882,[518] that body directed the Secretary of the Interior to investigate this and other matters relating to the Cherokees and to report thereon to Congress. Pursuant to the purpose of this enactment, Mr. C. C. Clements was appointed a special agent of the Interior Department with instructions to make the required investigation. He submitted three reports on the subject, the latter two being supplemental to and corrective of the first. From this last report[519] it appears that he finds the sum of $421,653.68 to be due to the "Old Settler" Cherokees, together with interest at 5 per cent. per annum from September 22, 1851. In brief his findings are--

1. That they received credit, under the settlement made under the treaty of 1846, for one-third of the fund, and were chargeable with one-third of the items properly taxable thereto.

2. Independent of article four of the treaty of 1846, the "Old Settlers" were not chargeable with removal out of the $5,000,000 fund.

3. Independent of that article, they should not be charged out of the $5,000,000 fund with the removal of the Eastern Cherokees, for three reasons: (_a_) The "Old Settlers" removed themselves at their own expense; (_b_) the Eastern Cherokees were not required to reimburse the "Old Settlers" under the treaty of 1835; and (_c_) the Government was required to remove the Eastern Cherokees.

4. They were not properly chargeable with the removal of the Ross party of 13,148, because (_a_) the United States were to remove them, and (_b_) an appropriation of $1,047,067 was made for that purpose, for which the "Old Settlers" received no credit in the settlement under the treaty of 1846.

5. Having received credit for their proportion of the $600,000, under article three of the treaty of 1836, they were chargeable with their proportion of that fund used for removal, etc., _i.e._, 2,495 Indians at $53.33 per head, amounting to $133,058.35.

6. The Eastern Cherokees were properly chargeable with the removal of the Ross party, and therefore they received credit for the $1,047,067 appropriated by the act of June 12, 1838.

7. In the settlement, the $5,600,000 fund was charged with the removal and subsistence of 18,026 Indians at $53.33-1/3 per head, amounting to $961,386.66.[520]

This report, with accompanying letters of the Commissioner of Indian Affairs and the Secretary of the Interior, was transmitted to Congress by the President, with a special message, on the 17th of December, 1883.

_Other questions under the treaty of 1835._--There were two other questions about which the parties could not agree, and upon which, by the eleventh article of the treaty of 1846, the Senate of the United States was designated as the umpire. The first of these was whether the amount expended for the one year's subsistence of the Eastern Cherokees, after their arrival in the West, should be borne by the United States or by the Cherokee funds, and, if by the latter, then whether subsistence should be charged at a greater rate than $33-1/3 per head.

The Senate committee to whom the subject was referred for report to that body found much difficulty, as shown by their report, in reaching a just conclusion. They observed that the faulty manner in which the treaty of 1835 was drawn, its ambiguity of terms, and the variety of constructions placed upon it, had led to a great embarrassment in arriving at the real intention of the parties, but that upon the whole the opinion seemed to be justified that the charge should be borne by the United States. By a strict construction of the treaty of 1835, the expense of a year's subsistence of the Indians was no doubt a proper charge upon the treaty fund and was so understood by the Government at the time. In the original scheme of the treaty furnished the commissioners empowered to treat with the Indians this item was enumerated among the expenditures, etc., to be provided for in its several articles, and which made up the aggregate sum of $5,000,000 to be paid for the Cherokee country. The Secretary of War, in a letter addressed to John Ross and others in 1836, had said that the United States, having allowed the full consideration for their country, nothing further would be conceded for expenses of removal and subsistence. The whole history of the negotiation of the treaty shows that the $5,000,000 was the maximum sum which the United States were willing to pay, and that this was not so much a consideration for the lands and possessions of the Indians as an indemnity to cover the necessary sacrifices and losses in the surrender of one country and their removal to another.

On the other hand, among the circumstances establishing the propriety of a contrary construction may be mentioned the language of the eighth article of the treaty, that "the United States also agree and stipulate to remove the Cherokees to their new homes and to subsist them one year after their arrival there." This language imports pecuniary responsibility rather than a simple disbursement of a trust fund. In the "talk" also which was sent[521] by President Jackson to the Indians to explain the advantages of the proposed treaty, he mentioned that the stipulations offered "provide for the removal at the expense of the United States of your whole people, and for their subsistence a year after their arrival in their new country."

It was also the common practice of the United States in removing the Indian tribes from one locality to another to defray the expense of such removal, and this was done in the cases of their neighbors, the Chickasaws, Choctaws, Creeks, and Seminoles. It is a matter of but little surprise, therefore, that a conflicting interpretation of this treaty through a series of years should have produced grave embarrassments.

Independent, however, of the literal provisions of the treaty of 1835, there existed other grounds upon which to base a judgment favorable to the claims of the Cherokees. The treaty with the supplementary article was finally ratified on the 23d of May, 1836, and by its provisions the Cherokees were required to remove within two years. It had been concluded (in the face of a protest from a large majority) with a small minority of the nation. Within the two years those who had favored the treaty had mostly emigrated to the West under its provisions.[522] The large majority of the nation, adopting the counsels of John Ross, had obstinately withstood all the efforts of the Government to induce them to adopt the treaty or emigrate. They had repudiated its obligation and denounced it as a fraud upon the nation. In the mean time the United States had appointed its agents under the treaty and collected a large military force to compel its execution. The State of Georgia had adopted a system of hostile legislation intended to drive them from the country. She had surveyed their territory and disposed of their homes and firesides by lottery. She had dispossessed them of a portion of their lands, subjected them to her laws, and at the same time disqualified them from the enjoyment of any political or civil rights. In this posture of affairs, the Cherokees who had never abandoned the vain hope of remaining in the country of their birth or of obtaining better terms from the United States made new proposals to the United States through John Ross and others for the sale of their country and emigration to the West. Still pursuing the idea that they were aliens to the treaty of 1835 and unfettered by its provisions, they proposed to release all claim to their country and emigrate for a named sum of money in connection with other conditions, among which was the stipulation that they should be allowed to take charge of their own emigration and that the United States should pay the expenses thereof. To avoid the necessity of enforcing the treaty at the point of the bayonet and to obtain relief from counter obligations to Georgia by the compact of 1802 and to the Cherokees by the treaties of 1817 and 1819, the proposal was readily acceded to by the United States authorities.

On the 18th of May, 1838, the Secretary of War addressed a reply to the proposals of the Cherokee delegation, in which he said: