Part 29

After reciting that a contract was entered into August 30, 1866, for the sale of the Cherokee neutral land, between James Harlan, Secretary of the Interior, and the American Emigrant Company; that such contract had been annulled as illegal by O. H. Browning, as Secretary of the Interior, who in turn entered into a contract of sale October 9, 1867, with James F. Joy, for the same lands, it is agreed by this treaty, in order to prevent litigation and to harmonize conflicting interests, as follows, viz: An assignment of the contract of August 30, 1866, with the American Emigrant Company shall be made to James F. Joy. Said contract as hereinafter modified is reaffirmed and declared valid. The contract with James F. Joy of October 9, 1867, shall be relinquished and canceled by said Joy or his attorney. The said first contract, as hereinafter modified, and the assignment thereof, together with the relinquishment of the second contract, are hereby ratified and confirmed whenever such assignment and relinquishment shall be entered of record in the Department of the Interior, and when said Joy shall have accepted such assignment and entered into contract to perform all the obligations of the American Emigrant Company under said first contract as hereinafter modified.

The modifications of said contract are declared to be:

1. Within ten days from the ratification of this treaty, $75,000 shall be paid to the Secretary of the Interior, as trustee for the Cherokee Nation.

2. The other deferred payments shall be paid when they fall due, with interest only from the ratification hereof.

It is distinctly understood that said Joy shall take only the residue of said lands after securing to "actual settlers" the lands to which they are entitled under the amended seventeenth article of the treaty of July 19, 1866. The proceeds of the sales of such lands so occupied by settlers shall inure to the benefit of the Cherokee Nation.

HISTORICAL DATA.

UNITED STATES DESIRE TO REMOVE INDIANS FROM KANSAS TO INDIAN TERRITORY.

It had for several years been the hope of the Government that so soon as the war was ended arrangements could be perfected whereby concessions of territory could be obtained from the principal Southern tribes. To territory thus acquired it was proposed, after obtaining their consent, to remove the several tribes possessing reservations in Kansas, or at least such of them as were not prepared or willing to dissolve their tribal relations and become citizens of the United States. The fertile and agreeable prairies of that State were being rapidly absorbed by an ever increasing stream of immigration, which gave promise as soon as the war should close and the armies be disbanded of an indefinite increase. The numerous Indian reservations dotting the face of the State in all directions afforded most desirable farming and grazing lands that would soon be needed for this rapidly multiplying white population.

COUNCIL OF SOUTHERN TRIBES AT CAMP NAPOLEON.

It was, therefore, with much gratification that the Secretary of the Interior learned during the month of June, 1865,[584] of the holding of a council at Camp Napoleon, Chattatomha, on the 24th of May preceding, which was attended by representatives of all the southern and southwestern tribes, as well as by the Osages. At this council delegates representing each tribe had been appointed to visit Washington, authorized to enter into treaty negotiations. Before these delegations were ready to start, however, it had been determined by the President to appoint special commissioners, who should proceed to the Indian country and meet them at Fort Smith.

GENERAL COUNCIL AT FORT SMITH.

This commission as constituted consisted of D. N. Cooley, Commissioner of Indian Affairs; Elijah Sells, superintendent of Indian affairs; Thomas Wistar, a leading Quaker; General W. S. Harney, of the United States Army; and Col. E. S. Parker, of General Grant's staff.[585] Proceeding to Fort Smith, the council was convened on the 8th day of September, and was attended by delegates representing the Creeks, Choctaws, Chickasaws, Cherokees, Seminoles, Osages, Senecas, Shawnees, Quapaws, Wyandots, Wichitas, and Comanches. In opening the council the Indians were informed that the commissioners had been sent to ascertain their disposition and feeling toward the United States; that most of them had violated their treaty obligations to the Government and, by entering into diplomatic relations with the so-called Confederate States, had forfeited all right to the protection of the United States and subjected their property to the penalty of confiscation.

They were assured, however, that the Government had no disposition to deal harshly with them. On the contrary, it was desirous of undertaking such measures as would conduce to their happiness, and was especially determined to grant handsome recognition to those of them whose loyalty had been so firmly and consistently manifested in the face of the most cruelly adverse conditions. The council continued in session for thirteen days. On the second day the Indians were informed that the commissioners were empowered to enter into treaties with the several tribes upon the basis of the following propositions:

1. That opposing factions of each tribe must enter into a treaty for permanent peace and amity among themselves: also between each other as tribes, and with the United States.

2. The tribes settled in the "Indian country" should bind themselves at the call of the United States authorities to assist in compelling the wild tribes of the plains to keep the peace.

3. Slavery should be abolished and measures should be taken to incorporate the slaves into the several tribes, with their rights guaranteed.

4. A general stipulation as to the final abolition of slavery.

5. A part of the Indian country should be set apart to be purchased for the use of such Indians from Kansas or elsewhere as the Government should desire to colonize therein.

6. That the policy of the Government to unite all the Indian tribes of this region into one consolidated government should be accepted.

7. That no white persons, except Government employés or officers or employés of internal improvement companies authorized by Government, should be permitted to reside in the country unless incorporated with the several nations.

_Reasons for Cherokee disloyalty._--The subsequent sessions of the council were largely taken up in the discussion of these propositions by the representatives of the various tribes. It is only with the conduct of the Cherokees, however, that the present history is concerned. The address of the representatives of the "loyal" portion of this tribe is especially noteworthy in this, that they charged the cause of their alliance with the rebel authorities upon the United States, by reason of the latter having violated its treaty obligations in failing to give them protection, whereby they were _compelled_ to enter into treaty relations with the Confederacy. This statement the president of the commission took occasion to traverse, and to assure them of the existence of abundant evidence that their alliance with the Confederacy was voluntary and unnecessary.

Before the close of the council it was ascertained that no final and definite treaties could be made with the tribes represented, for the reason that until the differences between the loyal and disloyal portions could be healed no truly representative delegations of both factions could be assembled in council. Preliminary articles of peace and amity with the different factions of each tribe were prepared and signed as a basis for future negotiations.

_Factional hostility among the Cherokees._--The only tribe with whom the commissioners were unsuccessful in re-establishing friendly relations between these factions was the Cherokees.[586]

The ancient feuds between the Ross and Ridge parties were still remembered. Many of the latter who had remained under Stand Watie in the service of the Confederacy until the close of the war were yet debarred from returning to their old homes, and were living in great destitution on the banks of the Red River.[587] When the Ross party had returned to their allegiance, in 1863, their national council had passed an act of confiscation[587] against the Watie faction, which had been enforced with the utmost rigor, so that some five or six thousand members of the tribe had been rendered houseless, homeless, and vagabonds upon the face of the earth. All prospect of securing a reconciliation between these parties was for the time being abandoned by the commissioners, and the proposition was seriously considered of securing a home for Watie and his followers among the Choctaws or Chickasaws.[588]

_John Ross not recognized as principal chief._--On the day[589] on which the draft of the proposed preliminary treaty was presented to the council by the commissioners John Ross arrived in the camp of the Cherokees. It had already been determined by the commissioners among themselves that his record had been such as to preclude his recognition by them as principal chief of that nation, and it was believed that his influence was being used to prevent the loyal Cherokees from coming to any amicable arrangement with their Southern brethren.

The chairman therefore read to the council[590] a paper signed by the several commissioners, reciting the machinations and deceptions of John Ross. It was alleged that he did not represent the will and wishes of the loyal Cherokees, and was not the choice of any considerable portion of the nation for the office claimed by him, an office which by the Cherokee law the commissioners believed he did not in fact hold. They therefore refused, as commissioners representing the interests of the United States, to recognize Ross in any manner as the chief of the Cherokee Nation.

_Loyal Cherokees will sign treaty conditionally._--At the same sitting of the council, Colonel Reese, of the loyal Cherokee delegation, declared that they were willing to sign the proposed treaty, but in so doing would not acknowledge that they had forfeited their rights and privileges to annuities and lands as set forth in the preamble, but that their signatures must be made under the following statement, viz: "We, the loyal delegation, acknowledge the execution of the treaty of October 7, 1861, but we solemnly declare that the execution was procured by the coercion of the rebel army."

_Southern Cherokees will sign treaty conditionally._--On the following day[591] the credentials of the Southern Cherokees were presented by E. C. Boudinot, accompanied by the statement that they cordially acceded to the 1st, 2d, 4th, 5th, and 7th propositions of the commissioners without qualification; that they accepted the abolition of slavery as an accomplished fact, and were willing to give such fact legal significance by appropriate acts of council. They insisted, however, that it would neither be for the benefit of the emancipated negro nor for that of the Indian to incorporate the former into the tribe on an equal footing with its original members. They were also opposed to the policy of consolidating all the tribes in the Indian Territory under one government, because of the many incongruous and irreconcilable elements which no power could bring into a semblance of assimilation.[592]

_Southern Cherokees want a division of territory._--They had already proffered and were willing again to proffer the olive-branch of peace and reconciliation to their brethren of the so called loyal portion of the nation, but respectfully urged that after all the blood that had been shed and the intense bitterness that seemed to fill the bosoms of their brethren they ought not to be expected to live in an undivided country. They wished peace, and they believed they could have it in no other way than by an equitable division of the Cherokee country in such manner as should seem most appropriate to the United States.

_Statement by John Ross._--The delegation of loyal Cherokees at the next session of the council[593] presented their exceptions to the action of the commissioners in declining to recognize John Ross and that gentleman was permitted to make a statement in his own behalf. The constantly accumulating evidence against him was such, however, as to more fully confirm the commissioners in the propriety of their previous action.

On the 21st of September the council adjourned, to meet again at the call of the Secretary of the Interior.

CONFERENCE AT WASHINGTON, D. C.

Early in 1866, in accordance with the understanding had at the adjournment of the Fort Smith council, delegations representing both factions of the Cherokees proceeded to Washington for the purpose of concluding some definite articles of agreement with the United States. They were represented by eminent counsel in the persons of General Thomas Ewing for the loyal and Hon. D. W. Voorhees for the Southern element. Many joint interviews and discussions were held in the presence of Commissioners Cooley, Parker, and Sells, but without any hopeful results. The bitterness exhibited in these discussions upon both sides gave but little promise that enmities of more than twenty years' standing could be subordinated to the demands of a peaceful and harmonious government. The Southern element, which numbered about sixty-five hundred, constituted but a minority of the whole nation. These, with the exception of perhaps two hundred, were still living in banishment among the Choctaws and Chickasaws, and felt it would be unsafe to return to their old homes with the Ross party in full possession of the machinery of government and ready to apply with severest rigor the enginery of their confiscation law. Their representatives were therefore instructed to demand, as the only hope for their future peace and happiness, a division of the Cherokee lands and funds in proportion to their numbers between the two contending parties.[594] On the other hand, the representatives of the Ross or loyal party insisted that there was no good reason existing why the Southern element should be unable to dwell harmoniously with them in the same country and under the same laws, which they asserted always had been and always would be impartially and justly administered, so far as they were concerned.

A just feeling of national pride would always forbid their consent to any scheme against the integrity and unity of the whole Cherokee Nation. But, while they were thus on principle compelled to antagonize the demand of the Southern faction, yet if that element felt the impossibility of living comfortably in the midst of their loyal brethren the latter were willing that the portion of their national domain known as the Canadian district should be devoted to their sole occupation and settlement for a period of two years or until the President of the United States should deem it inadvisable to longer continue such exclusiveness.[595] To this again the Southern Cherokees refused assent, because of the insufficient area of the Canadian district, and because they were unwilling to trust themselves under the jurisdiction of their enemies' laws and courts.

_Factious conduct of both parties._--Each faction was desirous of making a treaty with the Government, and each was fearful lest the United States should recognize the other as the proper party with which to conclude that treaty. The United States officials were convinced that the Ross party represented the rightfully constituted authorities of the nation, and their delegates were thus the only really authorized persons with whom a treaty could with strict propriety be made. But they were also convinced that it would be highly improper to conclude any treaty which should leave the Southern Cherokees in any degree subject to the malice and revengeful disposition of their enemies. It was the desire of the United States to secure from the Cherokees a cession of sufficient land upon which to colonize the Indian tribes then resident in Kansas. The Southern party therefore agreed to cede for that purpose all of the Cherokee domain west of 96° west longitude, and to sell the "neutral land" for the sum of $500,000, provided the Government would treat with them. The loyal party, however, refused to cede any territory for purposes of colonization east of 97° west longitude, and demanded $1,000,000 for the "neutral land," at the same time assuming that the United States had no right or authority to entertain any proposition from any other source whatever involving the disposition of the domain or funds of the Cherokee Nation.[596]

Interviews, consultations, and discussions followed each other in rapid succession, covering a period of several months, with no apparent approach toward a final agreement.

_Treaty concluded with Southern Cherokees._--At length the United States commissioners despairing of success with the loyal element, concluded a treaty with the Southern party.[597]

Among other things, this treaty provided that a quantity of land equal to 160 acres for every man, woman, and child, including the freedmen belonging to the Southern party, and also for each North Carolina Cherokee who should, within one year, remove and join them, should be set apart in that portion of their territory known as the Canadian district, for their sole use and occupancy. In case this district should afford an insufficient area of land, there should be added a further tract extending northward and lying between Grand River and the Creek boundary, and still further northward and westward between that river and the line of 95° 30' west longitude, or a line as far west if necessary as 96° west longitude, until the necessary complement of land, based upon a census of their people, should be secured. It was further agreed that the Southern Cherokees should have exclusive jurisdiction and control in the Canadian district, southwest of the Arkansas River, and of all that tract of country lying northeast of the Arkansas River and bounded on the east by Grand River, north by the line of 36° 30' north latitude, and west by 96° of west longitude and the Creek reservation. In consideration of these things, the Southern Cherokees ceded absolutely to the United States all other Cherokee lands owned by them, at such price as should be agreed upon by the respective parties, whenever the Northern or loyal Cherokees should agree with the United States to sell the same. The sale of the "neutral land" was provided for at a sum per acre to be fixed by the President, which should amount in the aggregate to not less than $500,000. In all future negotiations with the United States, as in the past, but one Cherokee Nation should be recognized, but each of the two parties or divisions should be represented by delegates in proportion to their respective numbers. All moneys due the nation should be divided between the parties in the same proportion, and whenever the state of feeling throughout the nation should become such as by their own desire to render a complete and harmonious reunion of the two factions practicable, the United States would consent to the accomplishment of such a measure.

This treaty was duly signed, witnessed, and transmitted through the Secretary of the Interior to the President for submission to the Senate of the United States. The President retained it for more than a month, when, upon the conclusion of a treaty under date of July 19, 1866,[598] with the loyal Cherokees, he returned the former to the commissioners at the time he transmitted the latter instrument to the Senate for the advice and consent of that body to its ratification.

_Treaty concluded with loyal Cherokees._--The treaty of July 19, though not filling the full measure of desire on the part of the United States, and though not thoroughly satisfactory in its terms to either of the discordant Cherokee elements, was the best compromise that could be effected under the circumstances, and was ratified and proclaimed August 11, 1866. It is unnecessary to recite its provisions here, as a full abstract of them has been given in the preceding pages. Nine days prior to its conclusion the Secretary of the Interior addressed a communication to Commissioner Cooley, who was president of the board of treaty commissioners, reminding him of their action the preceding fall at Fort Smith in suspending John Ross from his functions as principal chief, suggesting that the reasons rendering that action necessary at the time no longer existed, and giving his consent, in case the commissioners should feel so inclined, to the immediate recognition of Ross in that capacity.

_Death of John Ross._--The old man was at this time unable, by reason of illness, to participate in the deliberations concerning the new treaty,[599] and within a few days thereafter he died. He was in many respects a remarkable man. Though of Scotch-Indian parentage he was the champion of the full-blood as against the mixed-blood members of the nation, and for nearly half a century had been a prominent figure in all the important affairs of the Cherokee Nation. Notwithstanding his many opportunities for immense gains he seems to have died a poor man and his family were left without the necessaries of life. His sixty slaves, and everything he possessed in the way of houses, stock, and other like property, were swept away during the war.[600]

CESSION AND SALE OF CHEROKEE STRIP AND NEUTRAL LANDS.

The seventeenth article of the treaty of July 19, 1866, ceded to the United States, in trust to be disposed of for the benefit of the Cherokees, both the tract known as the "neutral land," previously alluded to, and that known as the "Cherokee strip." The latter was a narrow strip, extending from the Neosho River west to the western limit of the Cherokee lands. The Cherokee domain, as described in the treaty of 1835, extended northward to the south line of the Osage lands. When the State of Kansas was admitted to the Union its south boundary was made coincident with the thirty-seventh degree of north latitude, which was found to run a short distance to the southward of the southern Osage boundary, thus leaving the narrow "strip" of Cherokee lands within the boundaries of that State.

The proviso of the seventeenth article just mentioned required that the lands therein ceded should be surveyed, after the manner of surveying the public lands of the United States, and should be appraised by two commissioners, one of whom should be appointed by the United States and the other by the Cherokee Nation, such appraisement not to average less than $1.25 per acre. After such appraisement, the lands were to be sold under the direction of the Secretary of the Interior on sealed bids, in tracts of not exceeding 160 acres each, for cash, with the proviso that nothing should forbid the sale, if deemed for the best interests of the Indians, of the entire tract of "neutral land" (except the portion occupied by actual settlers) in one body to any responsible party for cash for a sum not less than $800,000. An exception was made as to the lands which were occupied by bona fide white settlers at the date of the signing of the treaty, who were allowed the privilege of purchasing at the appraised value, exclusive of their improvements, in quantities of not exceeding 160 acres each, to include such improvements.