Part 30

The language of this seventeenth article being somewhat obscure and subject to different interpretations as to the actual intent concerning the method of disposing of the "Cherokee strip," no action was taken toward its survey and sale until the year 1872, when by an act of Congress[601] provision was made for the appraisal of that portion of it lying east of Arkansas River at not less than $2 per acre, and the portion west of that river at not less than $1.50 per acre. Further provision was also made, by the same act, for its disposal on certain conditions to actual settlers, and any portion not being rendered amenable to these conditions was to be sold on sealed bids at not less than the minimum price fixed by the act. A considerable quantity of the most fertile portion of the tract was thus disposed of to actual settlers, though, as an encouragement to the sale, Congress was induced to pass an act[602] extending the limit of payment required of settlers to January 1, 1875. The price fixed by the act of 1872 being so high as to render the remainder of the land unattractive to settlers, a subsequent act of Congress[603] directed that all unsold portions of the said tract should be offered through the General Land Office to settlers at $1.25 per acre, for the period of one year, and that all land remaining unsold at the expiration of that period should be sold for cash at not less than $1 per acre. This act was conditional upon the approval of the Cherokee national council, which assent was promptly given, and the lands were disposed of under its provisions.

Shortly after the ratification of the treaty of 1866 steps were taken toward a disposition of the "neutral lands." Under date of August 30 of that year Hon. James Harlan, Secretary of the Interior, entered into a contract with a corporation known as the American Emigrant Company, whereby that company became the purchaser, subject to the limitations and restrictions set forth in the seventeenth article of the treaty, of the whole tract of neutral land at the price of $1 per acre, payable in installments, running through a period of several years. This contract was subsequently declared invalid[604] by Hon. O. H. Browning, the successor of Secretary Harlan, on the score that the proviso "for cash," contained in the treaty of 1866, in the common business acceptation of the term, meant a payment of the purchase price in full by the purchaser at the time of the sale, and was intended to forbid any sale on deferred payments.

In the following spring[605] an agreement was entered into between the Cherokee authorities and the Atlantic and Pacific Railway Company, which involved a modification of the seventeenth article of the treaty of 1866, and engaged to sell the "neutral lands" to that company on credit. This agreement was submitted by the Commissioner of Indian Affairs to the Secretary of the Interior for transmission through the President to the Senate for ratification as an amended article to the treaty of July 19, 1866, but did not meet with favorable action. Subsequently[606] the Secretary of the Interior entered into an agreement with James F. Joy, of Detroit, Mich., whereby the latter became the purchaser of all that portion of the "neutral land" not subject to the rights of actual settlers, at the price of $1 per acre in cash. Difficulties having arisen by reason of the conflicting claims of the different would-be purchasers, it was finally deemed judicious to obviate them by concluding a supplemental article to the treaty of 1866. This was accordingly done, at Washington, on the 27th of April, 1868, and the same was ratified and proclaimed on the 10th of June following.[607] This supplemental treaty provided for the assignment by the American Emigrant Company to James F. Joy of its contract of August 30, 1866. It was further stipulated that that contract, in a modified form, should be reaffirmed and declared valid, and that the contract entered into with James F. Joy on the 9th of October, 1867, should be relinquished and canceled. Furthermore, it was agreed that the first contract, as modified, and the assignment to Joy, together with the relinquishment of the second contract, should be considered ratified and confirmed whenever such assignment and relinquishment should be entered of record in the Department of the Interior and when James F. Joy should have accepted such assignment and entered into a contract with the Secretary of the Interior to assume and perform all the obligations of the American Emigrant Company under the first mentioned contract as modified.

The assignment of their contract with Secretary Harlan by the American Emigrant Company to James F. Joy was made on the 6th of June, 1868. The contract of October 9, 1867, between Secretary Browning and James F. Joy was relinquished by the latter June 8, 1868, and on the same day a new contract was entered into with Joy accepting the assignment of the American Emigrant Company and undertaking to assume and perform all the obligations of the original contractor thereunder, subject to the modifications prescribed in the supplemental treaty of April 27, 1868.[608]

The requirement of the treaty of 1866 as to the appraisal of the neutral lands was carried into effect by the appointment of John T. Cox, on behalf of the United States, and of William A. Phillips, on behalf of the Cherokees, as commissioners of appraisal. From their report as corrected it is ascertained that the quantity awarded to settlers was 154,395.12[609] acres; quantity purchased by Joy under his contract, 640,199.69 acres. A portion of the lands awarded to settlers, but upon which default was made in payment, and amounting to 3,231.21[610] acres, was advertised and sold on sealed bids to the highest bidders.[611] A small portion[612] of the tract was also absorbed by the claims of Cherokees who were settled thereon. The entire area of the neutral lands, as shown by the plats of survey, was 799,614.72 acres.

APPRAISAL OF CONFISCATED PROPERTY--CENSUS.

In pursuance of the third article of the treaty of 1866, and in accordance with the terms of an act of Congress approved July 27, 1868,[613] H. R. Kretschmar, on behalf of the United States, and ---- Stephens, on behalf of the Cherokee Nation, were appointed, in the summer of 1868,[614] commissioners to appraise the cost of property and improvements on farms confiscated and sold by the Cherokee Nation from acts growing out of the Southern rebellion. J. J. Humphreys had been appointed May 21 of the preceding year to perform the same duties, but had not fulfilled the object of his instructions. The commission reported[615] the value of the improvements of the character referred to as $4,657.

Mr. H. Tompkins was designated in the summer of 1867[616] to take the census of Cherokees in the Indian Territory contemplated by the twelfth article of the treaty of 1866. From his returns it appears that the nation then numbered 13,566 souls.

NEW TREATY CONCLUDED BUT NEVER RATIFIED.

During the two years following the conclusion of the treaty of 1866 peace and quietude prevailed among the Cherokees. They were blessed with abundant crops and the bitter animosities of the past years became greatly softened, insomuch that the Secretary of the Interior, in the spring of 1868,[617] under the authority of the President, directed that negotiations be opened with them for a new treaty in compliance with their request.[618] Articles of agreement were accordingly entered into on the 9th of July, 1868,[619] between N. G. Taylor, commissioner on behalf of the United States, and the principal chiefs and delegates representing the Cherokee Nation. The reasons rendering this treaty both desirable and necessary are thus set forth in the preamble, viz:

Whereas the feuds and dissensions which for many years divided the Cherokees and retarded their progress and civilization have ceased to exist, and there remains no longer any cause for maintaining the political divisions and distinctions contemplated by the treaty of 19th July, 1866; and whereas the whole Cherokee people are now united in peace and friendship, and are earnestly desirous of preserving and perpetuating the harmony and unity prevailing among them; and whereas many of the provisions of said treaty of July 19, 1866, are so obscure and ambiguous as to render their true intent and meaning on important points difficult to define and impossible to execute and may become a fruitful source of conflict not only amongst the Cherokees themselves but between the authorities of the United States and the Cherokee Nation and citizens; and whereas important interests remain unsettled between the Government of the United States and the Cherokee Nation and its citizens, which in justice to all concerned ought to be speedily adjusted: Therefore, with a view to the preservation of that harmony which now so happily subsists among the Cherokees, and to the adjustment of all unsettled business growing out of treaty stipulations between the Cherokee Nation and the Government of the United States, it is mutually agreed by the parties to this treaty as follows, etc.

Among the more important objects sought to be accomplished, and for which provision was made in the treaty, were:

1. The abolition of all party distinctions among the Cherokees and the abrogation of all laws or treaty provisions tending to preserve such distinctions.

2. The boundaries of the Cherokee country are defined in detail and as extending as far west as the northeast corner of New Mexico.

3. The United States reaffirm all obligations to the Cherokees arising out of treaty stipulations or legislative acts of the Government.

4. The United States having by article 2 of the treaty with the Comanches and Kiowas of October 18, 1865, set apart for their use and occupation and that of other friendly tribes that portion of the Cherokee domain lying west of 98° W. longitude and south of 37° N. latitude; and having further, by article 16 of Cherokee treaty of July 19, 1866, set apart in effect for the like purpose of settling friendly Indians thereon all the remaining Cherokee domain west of 96° W. longitude, agree to pay to the Cherokees therefor, including the tract known as the "Cherokee strip," in the State of Kansas, and estimated to contain in the aggregate the quantity of 13,768,000 acres, the sum of $3,500,000. This agreement was accompanied with the proviso that the Cherokees should further relinquish to the United States all right and interest in and to that portion of the Cherokee "outlet" embraced within the Pan Handle of Texas, containing about 3,000,000 acres, as well as that portion within New Mexico and Colorado, excepting and reserving, however, all salines west of 99° to the Cherokees.

5. The United States agree to refund to the Cherokees the sum of $500,000 paid by the latter for the tract of "neutral land," under the treaty of 1835, together with 5 per cent. interest from the date of that treaty, and to apply for the use and benefit of the former all moneys accruing from the sale of that tract.

6. The United States agree to ascertain the number of acres of land reserved and owned by the Cherokee Nation in the State of Arkansas, and in States east of the Mississippi River, and to pay to the Cherokees the appraised value thereof.

7. The United States agree to pay all arrears of Cherokee annuities accruing during the war and remaining unpaid.

8. Citizens of the United States having become citizens of the Cherokee Nation, shall not be held to answer before any court of the United States any further than if they were native-born Cherokees. All Cherokees shall be held to answer for any offense committed among themselves within the Cherokee Nation only to the courts of that nation, and for any offense committed without the limits of the nation shall be answerable only in the courts of the United States.

9. The post and reservation of Fort Gibson having been reoccupied by the United States, it is agreed that all Cherokees who purchased lots at the former sale of the military reserve by the Cherokee authorities, after its abandonment by the United States, shall be reimbursed for all losses occasioned by such military reoccupation.

10. The United States shall continue to appoint a superintendent of Indian affairs for the Indian Territory and an agent for the Cherokees.

11. A commission of three persons (two citizens of the United States and one Cherokee) shall be appointed to pass upon and adjudicate all claims of the Cherokee Nation, or its citizens, against the United States, or any of the several States.

12. The powers of the agent provided for by the twenty-second article of the treaty of 1866 to examine the accounts of the Cherokee Nation with the United States are enlarged to include the accounts of individual Cherokees with the United States.

13. All claims against the United States for Cherokee losses through the action of the military authorities of the United States, or from the neglect of the latter to afford the protection to the Cherokees guaranteed by treaty stipulation, are to be examined and reported on by the commission appointed under the eleventh article of this treaty.

14. Full faith and credit shall be given by the United States to the public acts, records, and judicial proceedings of the Cherokee Nation when properly authenticated.

15. Cherokees east of the Mississippi River, who remove within three years to the Cherokee Nation, shall be entitled to all the privileges of citizens thereof. After that date they can only be admitted to citizenship by act of the Cherokee national council.

16. Every Cherokee shall have the free right to sell, ship, or drive to market any of his produce, wares, or live stock without taxation by the United States, or any State, and no license to trade in the Cherokee Nation shall be granted unless approved by the Cherokee council.

17. Fifty thousand dollars shall be allowed for the expenses of the Cherokee delegation in negotiating this treaty, one half to be paid out of their national fund.

18. Executors and administrators of the owners of confiscated property shall have the right, under the third article of the treaty of 1866, to take possession of such property.

19. Twenty-four thousand dollars shall be paid by the Cherokee Nation to the heir of Bluford West, as the value of a saline and improvements of which he was dispossessed.

20. Abrogation is declared of so much of article 7, treaty of 1866, as vests in United States courts jurisdiction of causes arising between citizens of the Cherokee Nation, and transfers such jurisdiction to the Cherokee courts.

21. Provision of the treaty of 1866 relative to freedmen is reaffirmed; the United States guarantee the Cherokees in the possession of their lands and protection from domestic strife, hostile invasions, and aggressions by other Indian tribes or lawless whites.

BOUNDARIES OF THE CHEROKEE DOMAIN.

During the proceedings incident to the negotiation of this treaty the question arose as to what constituted the proper western limit of the Cherokee country.

The Cherokees themselves claimed that their territory extended at least as far west as 103° west longitude, being the northeast corner of New Mexico. Their claim was based in part upon the second article of the treaty of 1828,[620] the first article of the treaty of 1833,[621] the second article of the treaty of 1835,[622] and the first article of the treaty of 1846.[623]

The treaty of 1828 guaranteed to the Cherokees seven millions of acres of land, and then declared in the following words: "In addition to the seven millions of acres 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 the above described limits, and as far west as the sovereignty of the United States and their right of soil extend."

This guarantee was reaffirmed in similar language by the treaties of 1833 and 1835, and the guaranty contained in the treaty of 1835 was reaffirmed by the treaty of 1846. The question, therefore, to be determined was what constituted the extreme western limit of the sovereignty of the United States in that vicinity.

The colony or province of Louisiana had originally belonged to France. In 1762 it was transferred to Spain, but was by Spain retroceded to France by the treaty of 1800. In 1803 the Emperor Napoleon, fearing a war with England and the consequent occupation of the territory by that power, ceded it to the United States, but the boundaries of the cession were very indefinite and, according to Chief Justice Marshall, were couched in terms of "studied ambiguity."

It seems to have been consistently claimed by the United States up to the treaty of 1819 with Spain that the western boundary of the Louisiana purchase extended to the Rio Grande River. The better opinion seemed also to be that it followed up the Rio Grande from the mouth to the mouth of the Pecos, and thence north. By that treaty, however, all dispute concerning boundaries was adjusted and the undefined boundary between Louisiana and Mexico was settled as following up the course of the Sabine River to the Red River; thence by the course of that river to the one hundredth meridian, thence north to the Arkansas River and following the course of that river to the forty-second parallel, and thence west to the Pacific Ocean. By many the position was taken that this treaty was a _nudum pactum_, and Henry Clay, when it was under consideration in the Senate, introduced a resolution into the House of Representatives declaring that Texas, being a part of the territory of the United States, could not be ceded by the treaty making power to a foreign country, and that the act was not only unauthorized by the Constitution but was void for another reason, viz, that this cession to Spain was in direct conflict with clear and positive stipulations made by us in the treaty with France as to the disposition of the whole territory. Under this theory of the invalidity of the treaty of 1819 the Cherokees claimed the extension of their boundary west of the one hundredth meridian. But, assuming the insufficiency of this claim, they still fortified their title upon another proposition. Mexico succeeded, by the consummation of her independence, to all the territorial rights of Spain in this region. Texas in turn achieved her independence of Mexico in 1836. In March, 1845, Texas became one of the United States, and thus, according to the Cherokee assumption, "the United States again came into possession of that portion of the outlet west of 100°, if indeed it had ever been a part of the territory claimed by Mexico and which by Texan independence she was forced to relinquish. The United States, more than a year after she had come into possession of the country now claimed by the Cherokees, reaffirmed the grant to them, that is to say, by the treaty of August 17, 1846."

The "portion of the outlet west of 100°" here alluded to is the strip of country lying between Kansas and Texas from north to south and between the 100° and New Mexico from east to west. By act of Congress of September 9, 1850,[624] the east boundary of New Mexico was fixed at 103° west longitude and the north boundary of Texas at 36° 30' north latitude, and by act of May 30, 1854,[625] the south boundary of Kansas was established at 37° north latitude, thus leaving this strip of country outside the limits of any organized State or Territory, and so it still remains. This claim of the Cherokees was admitted by the Commissioner of Indian Affairs at the time of the conclusion of the treaty of July 9, 1868, to be a valid one, and was inserted in the boundaries defined by that treaty. The treaty, however, failed of ratification, and it was afterwards determined by the executive authorities of the United States that at the date of the treaty of 1835 with the Cherokees the sovereignty of the United States extended only to the one hundredth meridian, and that the reaffirmation of the treaty guarantee of 1835 by subsequent treaties was not intended to enlarge the area of their territory, but simply as an assurance that the United States were fully conscious of their obligation to maintain the integrity of such guarantee. Consequently the Cherokee outlet was limited in its western protraction to that meridian.

DELAWARES, MUNSEES, AND SHAWNEES JOIN THE CHEROKEES.

By the fifteenth article of the treaty of 1866 provision was made that, upon certain conditions, the United States should have the right to settle civilized Indians upon any unoccupied Cherokee territory east of 96° west longitude. The material conditions limiting this right were that terms of settlement should be agreed upon between the Cherokees and the Indians so desiring to settle, subject to the approval of the President of the United States; also that, in case the immigrants desired to abandon their tribal relations and become citizens of the Cherokee Nation, they should first pay into the Cherokee national fund a sum of money which should sustain the same proportion to that fund that the number of immigrant Indians should sustain to the whole Cherokee population. If, on the other hand, the immigrants should decide to preserve their tribal relations, laws, customs, and usages not inconsistent with the constitution and laws of the Cherokee Nation, a tract of land was to be set apart for them by metes and bounds which should contain, if they so desired, a quantity equal to 160 acres for each soul. For this land they were to pay into the Cherokee national fund a sum to be agreed upon between themselves and the Cherokees, subject to the approval of the President, and also a sum bearing a ratio to the Cherokee national fund not greater than their numbers bore to the Cherokees. It was also stipulated that, if the Cherokees should refuse their assent to the location of any civilized tribe (in a tribal capacity) east of 96°, the President of the United States might, after a full hearing of the case, overrule their objections and permit the settlement to be made.

The Delawares were the first tribe to avail themselves of the benefits of the foregoing treaty provisions. Terms of agreement were entered into between them and the Cherokees, which were ratified by the President on the 11th of April, 1867. Under the conditions of this instrument the Delawares selected a tract of land equal to 160 acres for each member of their tribe who should remove to the Cherokee country. For this tract they agreed to and did pay one dollar per acre. They also paid their required proportional sum into the Cherokee national fund. The number of Delawares who elected to remove under this agreement was 985. The sums they were required to pay were: for land, $157,600; and as their proportion of the national fund, $121,834.65, the latter amount having been calculated on the basis of an existing Cherokee national fund of $1,678,000 and a population of 13,566.[626]

For a time after their removal the Delawares were much dissatisfied with what they characterized as the unequal operation of the Cherokee laws, and because much of the tract of land to which they were assigned was of an inferior character. At one time some two hundred of them left the Cherokee country, but after an absence of two years returned, since which a feeling of better contentment has prevailed. Following the Delawares, the Munsee or Christian Indians, a small fragmentary band who under the treaty of July 16, 1859, had become confederated with the Chippewas of Saginaw, Swan Creek, and Black River, residing in Kansas, perfected arrangements for their removal and assimilation with the Cherokees.