The Cherokee Nation of Indians. (1887 N 05 / 1883-1884 (pages 121-378))

by Charles C. Royce

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.

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.

An agreement was entered into[627] at Tahlequah, Cherokee Nation, having this end in view, and which was duly filed with the Commissioner of Indian Affairs.[628] The condition of this agreement was that, after the complete dissolution of their relations with the Chippewas, the Munsees should pay into the Cherokee national fund all moneys that should be found due them in pursuance of such separation. In the spring of 1868 an effort was made by the Commissioner of Indian Affairs, under the authority of this same article of the treaty of 1866, to secure a tract of 900,000 acres for the location of the Navajoes. This tract, it was desired, should be so far east of 96° that sufficient room should be left between the Navajoes and that meridian to admit of the accommodation of a settlement of Cherokees thereon. This proposition, however, the Cherokees refused to entertain, asserting that the Navajoes were not civilized Indians within the meaning of the treaty of 1866.[629]

The next Indians to avail themselves of the privileges of Cherokee citizenship were the Shawnees. By the treaty of 1825[630] a reserve had been granted them covering an area in the richest portion of what is now the State of Kansas 50 by 120 miles in extent. By a subsequent treaty in 1854,[631] they ceded, in deference to the demands of encroaching civilization, all of this immense tract except 200,000 acres. Among those who so elected, the greater portion of this diminished reserve was divided into individual allotments of 200 acres each. Patents were issued to the head of each family for the quantity thus allotted to the members of his or her family, with the power of alienation, subject to such restrictions as the Secretary of the Interior might prescribe. In course of time alienation was made by these allottees of the greater portion of their land; the money thus received was squandered with the thriftless prodigality that characterizes barbarous or semi-civilized tribes the world over, and their impoverished condition was rendered still more uncomfortable by the seeming determination of the rapidly increasing white settlers to take possession of their few remaining lands. In this unfortunate condition of affairs they turned their eyes for relief toward the country of the Cherokees. Negotiations were entered into which resulted in the conclusion of an agreement, under date of June 7, 1869, and which received the approval of President Grant two days later. By the terms of this compact, the Shawnees then residing in Kansas, as well as their absentee brethren in the Indian Territory and elsewhere, who should enroll themselves and permanently remove within two years to the Cherokee country, upon unoccupied lands east of 96°, should be incorporated into, and ever after remain a part of the Cherokee Nation, with the same standing in every respect as native Cherokees. In consideration of these benefits the Shawnees agreed to transfer to the Cherokee national fund a permanent annuity of $5,000 held by them under previous treaties, in addition to the sum of $50,000 to be derived from the sale of the absentee Shawnee lands provided for by the resolution of Congress approved April 7, 1869.[632] Under the provisions of this agreement, seven hundred and seventy Shawnees removed to and settled in the Cherokee country, as shown by the census roll filed[633] with the Commissioner of Indian Affairs.

FRIENDLY TRIBES TO BE LOCATED ON CHEROKEE LANDS WEST OF 96°.

In addition to the provision contained in the treaty of 1866 concerning the location of civilized Indians east of 96°, the sixteenth article of that treaty made further provision enabling the United States to locate friendly tribes on Cherokee lands west of that meridian. The conditions of this concession were that any tracts selected for such location should be in compact form and in quantity not exceeding 160 acres for each member of the tribe so located, and that the boundaries of the tracts should be surveyed and marked and should be conveyed in fee simple to the tribes respectively located thereon. It was further stipulated that the price to be paid for the lands so set apart should be such as might be agreed upon between the Cherokees and the immigrant tribes, subject to the approval of the President of the United States, who, in case of a disagreement between the parties in interest, was authorized to fix the value.

Osages.—The treaty of September 29, 1865,[634] with the Osages, having in view the possibility of some early arrangement whereby the Kansas tribes might be removed to Indian Territory, made provision that in case such a removal of the Osages should take place their remaining lands in Kansas should be disposed of and 50 per cent. of the proceeds might be applied to the purchase of their new home. Nothing was done in the line of carrying out this idea until the spring of 1868, when, in reply[635] to a communication from the Commissioner of Indian Affairs on the subject, the Cherokee delegation asserted the willingness of their nation to dispose of a tract for the future home of the Osages not exceeding 600,000 acres in extent and lying west of 96°, provided a reasonable price could be agreed upon for the same. A few weeks later[636] a treaty was concluded between the United States and the Osages, which made provision for setting apart a tract for their occupation in the district of country in question, but the treaty failed of ratification. The necessity for their removal from Kansas, however, increased in correspondence with the demands of advancing settlements, and Congress, by an act approved July 15, 1870,[637] provided that, whenever the Osages should give their assent, a tract should be set apart for their permanent occupancy in the Indian Territory equal in extent to 160 acres for each member of the tribe who should remove there. For this tract they were to pay a price not exceeding that paid by the United States, the cost to be defrayed out of the proceeds arising from the sale of their Kansas lands. The assent of the Osages to the provisions of this act was promptly secured through the medium of a commission consisting of J. V. Farwell, J. D. Lang, and Vincent Colyer, of the President's Board of Indian Commissioners. A tract was selected in the Cherokee country immediately west of 96°, as was supposed, and the Osages were removed to it. Their condition was for a time, however, most unsatisfactory. Many trespassers were found to be upon the lands selected for them. To crown this trouble, a new survey located the line of the 96th meridian a considerable distance to the west of what had previously been presumed its proper location. This survey deprived the Osages of the greater part of the tillable land upon which they had settled and included the most valuable of their improvements. To a proposition allowing the Osages to retain the lands thus found to be east of 96°, the Cherokees returned an emphatic refusal, on the ground that the former were not "civilized Indians."[638] Another subject of annoyance was the inability of the Osages and Cherokees to agree upon a price for the lands selected by the former. The matter was therefore laid before the President, who, by executive order,[639] fixed the price to be paid at 50 cents per acre. To this action the Cherokees strenuously objected, urging that not only was the price too low, but that a uniform valuation ought to be fixed for all the Cherokee lands west of 96°.[640] To remedy the evils arising from these complications, legislation was asked of Congress approving a new selection for the Osages, and, by act approved June 5, 1872,[641] such selection was affirmed (the previous consent of the Cherokees having been obtained),[642] to include the tract of country "bounded on the east by the 96th meridian, on the south and west by the north line of the Creek country and the main channel of the Arkansas River, and on the north by the south line of the State of Kansas."

Kansas or Kaws.—This act contained a proviso that the Osages should permit the settlement within the limits of this tract of the Kansas or Kaw tribe of Indians, and a reservation was accordingly set off for them in the northwest corner, bounded on the west by the Arkansas River. The area of the country thus assigned to the Kaws was 100,137 acres, and of that portion intended for the occupation of the Osages 1,470,059 acres.[643]

The question of the future location of these Indians having been definitely settled, it only remained for an agreement to be reached concerning the price to be paid to the Cherokees for the tract so purchased. The value fixed by the President on the tract originally selected was considered as having no application to the lands set apart by the act of 1872. As in the first instance no agreement was reached between the Osages and Cherokees, and the President was again called on to establish the price. This he did, after much discussion of the subject, on the 14th of February, 1873. The price fixed was 70 cents per acre, and applied to the "Kaw reserve" as well as to that of the Osages.

Pawnees.—In further pursuance of the privilege accorded by the treaty of 1866, the Pawnee tribe has also been located on Cherokee lands west of 96°. The Pawnees are natives of Nebraska, and possessed as the remnant of their original domain a reservation on the Platte River, in that State. Their principal reliance as a food supply had been the buffalo, though to a very limited extent they cultivated corn and vegetables.

For two years prior to 1874, however, their efforts in the chase were almost wholly unrewarded, and during the summer of that year their small crops were entirely destroyed by the ravages of the grasshoppers. The winter and spring of 1874—'75 found them, to the number of about three thousand, in a starving condition. In this dilemma they held a council and voted to remove to Indian Territory, asking permission at the same time to send the male portion of the tribe in advance to select a home and to break the necessary ground for planting crops. They also voted a request that the United States should proceed to sell their reserve in Nebraska, and thus secure funds for their proper establishment in the Indian Territory. Permission was granted them in accordance with their request, and legislation was asked of Congress to enable the desired arrangement to be carried into effect. Congress failed to take any action in relation to the subject during the session ending March 3, 1875. It therefore became necessary to feed the Pawnees during the ensuing season.[644]

The following year, by an act approved April 10,[645] Congress provided for the sale of the Pawnee lands in Nebraska, as a means of securing funds for their relief and establishment in their new home, the boundaries of which are therein described. It consists of a tract of country in the forks of the Arkansas and Cimarron Rivers comprising an area of 283,020 acres. Of this tract, 230,014 acres were originally a portion of the Cherokee domain west of 96° and were paid for at the rate of 70 cents per acre. The remainder was ceded to the United States by the Creek treaty of 1866.

Appraisal of the lands west of 96°.—By the 5th section of the Indian appropriation act of May 29, 1872,[646] the President of the United States was authorized to cause an appraisement to be made of that portion of the Cherokee lands lying west of 96° west longitude and west of the Osage lands, or, in other words, all of the Cherokee lands lying west of the Arkansas River and south of Kansas mentioned in the 16th article of the Cherokee treaty of July 19, 1866. No appropriation, however, was made to defray the expense of such an appraisal, and in consequence no steps were taken toward a compliance with the terms of the act. This legislation was had in deference to the long continued complaints of the Cherokees that the United States had, without their consent, appropriated to the use of other tribes a large portion of these lands, for which they (the Cherokees) had received no compensation. The history of these alleged unlawful appropriations of the Cherokee domain may be thus briefly summarized:

1. By treaty of October 18, 1865,[647] with the Kiowas and Comanches, the United States set apart for their use and occupancy an immense tract of country, which in part included all of the Cherokee country west of the Cimarron River. No practical effect, however, was given to the treaty, because the United States had not at this time acquired any legal right to settle other tribes on the lands of the Cherokees and because of the fact that two years later[648] a new reservation was by treaty provided for the Kiowas and Comanches, no portion of which was within the Cherokee limits.

2. By the treaty of October 28, 1867,[649] with the Southern Cheyennes and Arapahoes the United States undertook to set apart as a reservation for their benefit all the country between the State of Kansas and the Arkansas and Cimarron Rivers. The bulk of this tract was within Cherokee limits west of 96°. As a matter of fact, however, the Cheyennes and Arapahoes could not be prevailed upon to take possession of this tract, and were finally, by Executive order,[650] located on territory to the southwest and entirely outside the Cherokee limits.

Pursuant to the act of May 29, 1872,[651] the Commissioner of Indian Affairs negotiated an agreement with the Southern Cheyennes and Arapahoes in the following autumn[652] by which they ceded to the United States all interest in the country set apart by the treaty of 1867, and accepted in lieu thereof a reserve which included within its limits a portion of the Cherokee domain lying between the Cimarron River and the North Fork of the Canadian.

This agreement with the Southern Cheyennes and Arapahoes not having been ratified by Congress, an agreement was concluded late in the following year[653] by the Commissioner of Indian Affairs with both the Cheyennes and the Arapahoes, whereby they jointly ceded the tract assigned them by the treaty of 1867, as well as all other lands to which they had any claim in Indian Territory, in consideration of which the United States agreed to set apart other lands in that Territory for their future home.

Like its predecessor, this agreement also failed of ratification by Congress, and the Indians affected by it still occupy the tract set apart by Executive order of 1869.

In the light of these facts it appears that although the United States made several attempts, without the knowledge or concurrence of the Cherokees, to appropriate portions of the latter's domain to the use of other tribes, yet as a matter of fact these tribes never availed or attempted to avail themselves of the benefits thus sought to be secured to them, and the Cherokees were not deprived at any time of an opportunity to sell any portion of their surplus domain for the location of other friendly tribes.

By a clause contained in the sundry civil appropriation act of July 31, 1876,[654] provision was made for defraying the expenses of the commission of appraisal contemplated by the act of 1872, and the Secretary of the Interior appointed[655] such a commission, consisting of Thomas V. Kennard, Enoch H. Topping, and Thomas E. Smith. Before the completion of the duties assigned them, Mr. Kennard resigned and William N. Wilkerson was appointed[656] to succeed him. The commission convened at Lawrence, Kansas, and proceeded thence to the Cherokee country, where they began the work of examination and appraisal. Their final report was submitted to the Commissioner of Indian Affairs under date of December 12, 1877. From this report it appears that the commissioners in fixing their valuations adopted as the standard of their appraisal one-half the actual value of the lands, on the theory that being for Indian occupancy and settlement only they were worth only about half as much as they would have been if open to entry and settlement by the white people.

The entire tract, including the Pawnee reserve, contains 6,574,576.05 acres, and was appraised at an average valuation of 41¹/₄ cents per acre. The average valuation placed upon the Pawnee reserve separately was 59 cents per acre, leaving the average of the remaining 6,344,562.01 acres 40.47 cents per acre.

To this standard of appraisal the Cherokees strenuously objected as being most unfair and unjust to them, claiming that the same measure of value used by the United States in rating its lands of a similar character in the adjoining State of Kansas, and from which they were separated only by an imaginary line, should prevail in determining the price to be paid for the Cherokee lands.

The Secretary of the Interior, after a careful examination of the whole subject, was of the opinion[657] that the restriction placed upon the use of these lands (being limited to Indian occupancy only) did not warrant a reduction of 50 per cent. in an appraisal of their value.

The price paid by the Osages for their reserve was 70 cents per acre. The Pawnee tract was of about the same general character as that of the Osages, and there seemed to be no good reason why the same price should not be allowed to the Cherokees therefor. This Pawnee tract was appraised by the commissioners at 59 cents per acre. As the appraisal of the whole unoccupied country west of 96° was made by the same appraisers and upon the same basis, if an increase was determined upon in the case of the Pawnee tract from 59 to 70 cents per acre, it was only just that a proportionate increase above the appraised value of the remainder of the lands should also be allowed. This would give an increase for the latter from 40.47 cents to 47.49 per acre. The adoption of this standard was therefore recommended to the President and was by him approved and ratified.[658]

In addition to the Osages, Kansas, and Pawnees there have been removed to the Cherokee lands west of 96° the Poncas, a portion of the Nez Percés, and the Otoes and Missourias.

Poncas.—An appropriation of $25,000 was made by act of Congress approved August 15, 1876,[659] for the removal of the Poncas, whenever their assent should be obtained. After much trouble and a threatened resort to military force, their assent to remove to the Indian Territory was secured in the beginning of 1877.[660] They came overland from Nebraska in two different parties and encountered great hardships, but finally reached the Territory, where they were temporarily located on the northeast portion of the Quapaw reserve, a few miles from Baxter Springs, Kansas.[661]

They were not satisfied with the location, which was in many respects unsuitable, especially in view of its proximity to the white settlements. They were, therefore, permitted to make another selection, which they did in the Cherokee country, on the west bank of the Arkansas, including both banks of the Salt Fork at its junction with the parent stream. To this new home they removed in 1878,[662] but it was not until 1881[663] that Congress made an appropriation out of which to pay the Cherokees for the land so occupied. This tract embraces 101,894.31 acres, for which the price of 47.49 cents per acre, fixed by the President, was paid.

Nez Percés.—The Nez Percés, previously alluded to, are the remnant of Chief Joseph's band, who surrendered to General Miles in 1877. They were at first removed from the place of their surrender to Fort Leavenworth, Kansas, where they arrived in November of that year as prisoners of war, to the number of 431. Congress having made provision[664] for their settlement in the Indian Territory, a reservation was selected for them on both sides of the Salt Fork of the Arkansas. To this tract, which adjoined the Poncas on the west, they removed in the summer of 1879,[665] having in the mean time lost a large number by death, the mortality being occasioned in great measure by their unsanitary location while at Fort Leavenworth. The reserve selected for them contains 90,735 acres and was paid for at the same price as that of the Poncas.

Otoes and Missourias.—By act of March 3, 1881,[663] provision was also made for the removal of the Otoes and Missourias to the Indian Territory and for the sale of their lands in Nebraska.

A reservation was accordingly selected for them, west of the Arkansas River and south of the Ponca Reserve, to which they were removed in the autumn of the same year[666]. It contains 129,113.20 acres and was paid for at the same rate as that of the Poncas and Nez Percés.[667]

EAST AND NORTH BOUNDARIES OF CHEROKEE COUNTRY.

For many years there had been much doubt and dispute concerning the correctness of the boundary line between the Cherokee Nation and the adjacent States. Especially had this been the cause of much controversy with the citizens of Arkansas. In the interest of a final adjustment of the matter, it was stipulated in the twenty-first article of the Cherokee treaty of July 19, 1866, that the United States should, at its own expense, cause such boundary to be resurveyed between the Cherokee Nation and the States of Arkansas, Missouri, and of Kansas as far west as the Arkansas River, and the same should be marked by permanent and conspicuous monuments by two commissioners, one of whom should be designated by the Cherokee national council.

Nothing definite was done in pursuance of this provision until the year 1871, when W. D. Gallagher was[668] appointed a commissioner on behalf of the United States to co-operate with the commissioner on the part of the Cherokees. Mr. Gallagher declined and R. G. Corwin was substituted in his stead[669], but he having also refused to serve, the place was finally filled by the appointment[670] of James M. Ashley. The Cherokee national council on their part selected John Lynch Adair. The commission advertised for proposals for the surveying, and, as a result, entered into contract with D. P. Mitchell, who completed the survey to the satisfaction of the commissioners.[671] The new line from Fort Smith, Ark., to the southwest corner of Missouri ran north 7° 50' west, 77 miles 39.08 chains; thence to the southeast corner of the Seneca lands it ran north 0° 02' west, 8 miles 53.68 chains. The north boundary between the nation and the State of Kansas, extending from the Neosho to the Arkansas River, was protracted due west on the 37° of north latitude and was found to be 105 miles 60 chains and 75 links in length. The report of the commissioners was approved by the Secretary of the Interior, and although some distress for the time being was occasioned to individual settlers, whose improvements were by the resurvey of the line thrown within the limits of the Indian Territory, the boundary has been so plainly marked that "he who runs may read."

RAILROADS THROUGH INDIAN TERRITORY.

The series of treaties concluded in 1866 with the five principal tribes in Indian Territory all contained limited concessions of right of way for railroads through their country to the State of Texas. The eleventh article of the Cherokee treaty contained a grant of right of way 200 feet in width to a contemplated railroad through their domain from north to south and also from east to west. In pursuance of these treaty concessions, as essentially a part of the same scheme, Congress, by appropriate legislation,[672] granted public lands and privileges to the Kansas and Neosho, the southern branch of the Union Pacific, and the Atlantic and Pacific Railroad Companies, respectively, for the construction of their roads. The Leavenworth, Lawrence and Fort Gibson Railroad was also conceded like privileges. The stipulated point of entering the Indian Territory was in each case the west bank of Neosho River, where it crosses the Kansas line. As there seemed to be some question whether more than one line of road would be permitted to traverse the Territory in each direction a race was inaugurated between all the north and south lines, each in the effort to outstrip the other in reaching the prescribed point for entering the Indian country. The Union Pacific Southern Branch (subsequently known as the Missouri, Kansas, and Texas) Railway Company, in the fervency of their desire to reach the line first, omitted the construction of a portion of their route, and began operations within the limits of the Cherokee country without having received the previous permission of either the United States or the Cherokee authorities so to do. To this conduct the Cherokees made vigorous objection, and appealed to the Secretary of the Interior. That officer notified[673] the railroad officials that the Cherokees did not recognize their right to so intrude upon the Territory, and that no work of the kind referred to could be permitted therein until the Executive should be satisfied, by evidence submitted in proper manner, that such entry and occupation were in accordance with law. Thereupon the officers and attorneys of the several companies interested appeared and submitted arguments before the Secretary of the Interior on behalf of their respective interests. The point submitted for the consideration of the Secretary and for the determination of the President was, what rights had been given to railroad companies to construct railroads through the Indian Territory and what railroads, if any, were entitled to such privileges and right of way.

On the part of the Indians it was claimed that the whole scheme of treaties and of legislation looked to the construction of but a single trunk road through the Territory from north to south, and, as far as the Cherokee Nation was concerned, for the like construction of but a single road through its territory from east to west. This interpretation of the treaties and the laws was admitted to be the correct one by all the companies but the Missouri, Kansas, and Texas. This company insisted that the meaning of the legislation and of the treaties was to give the right of way to as many roads as might in any manner be authorized by Congress to enter the Territory.

The Secretary of the Interior in his opinion[674] expressed an emphatic concurrence in the interpretation insisted upon by the Cherokee delegation. He was further of the opinion that neither of the roads had so far earned a right to enter the Indian country by the construction of a continuous line of road to the legal point of entrance, but that as it might soon be necessary to decide which company should first completely fulfill the conditions of the law, an executive order ought to be issued declaring that no railroad company should be permitted to enter the Territory for the purpose of grading or constructing a railroad until a report should be received from a commission composed of the superintendents of Indian affairs for the central and southern superintendencies designating which company had first reached the line. These views and findings of the Secretary of the Interior were approved by the President and directed to be carried into effect.[675]

This commission reported[676] that the Union Pacific Railway, southern branch—otherwise the Missouri, Kansas, and Texas Railway—reached the northern boundary of the Indian Territory, in the valley of the Neosho River on the west side, and about one mile therefrom, at noon on the 6th day of June, 1870, and that at that time there was no other railroad nearer than 16 miles of that point.

Predicated upon this report, supplemented by the certificate of the governor of Kansas that it was a first class completed railway up to that point, permission was given the Missouri, Kansas, and Texas Railway Company by the President, under certain stipulations and restrictions as to the methods and character of construction, to proceed with the work of building a trunk road through the Indian Territory to a point at or near Preston, in the State of Texas, and the road was rapidly constructed under this authority.

The Atlantic and Pacific road, having no competitor, experienced no difficulty in securing the right of construction of its east and west line through the Cherokee country.

REMOVAL OF INTRUDERS—CHEROKEE CITIZENSHIP.

On various pretexts, both white and colored men had from time to time established themselves among the Cherokees and taken up their residence as permanent citizens of the nation. The increase of their numbers at length became so formidable and their influence upon the national polity and legislation of the Cherokees so great as to excite the apprehension and jealousy of the latter.

The policy of their removal therefore became a subject of serious consideration with the national council. This involved a question as to what were the essential prerequisites of Cherokee citizenship, and who of the objectionable class were entitled, on any score, to the privileges of such citizenship, as well as who were mere naked intruders. Upon these points the national council assumed to exercise absolute control, and proceeded to enact laws for the removal of all persons, both white and colored, whom the council should declare not entitled to remain in the Cherokee country.[677] The action of the council in this respect was communicated to the Indian Department in the fall of 1874, through the United States agent for that tribe, coupled with a demand for the removal by the military force of the United States of all who had thus been declared to be intruders. The Department not being fully satisfied of the justice of this demand, detailed an inspector to proceed to the Indian country and make a thorough investigation of the subject. His report[678] revealed the fact that there were large numbers of people in that country who had been declared intruders by the national authorities, but who had presented to him strong ex parte evidence of their right to Cherokee citizenship, either by blood, by adoption, or under the terms of the 9th article of the treaty of 1866 defining the status of colored people. Affidavits in large numbers corroborative of the inspector's report continued to be filed in the Indian Department during the succeeding summer, from which it appeared that many persons belonging to each of the classes alluded to had applied to the courts or to the council of the nation for an affirmative ruling upon their claim to citizenship, but that in many instances such applications had been entirely ignored. In other cases, where the courts had actually affirmed the right of applicants, the council had arbitrarily and without notice placed their names upon the list of intruders and called upon the United States for their removal. In this situation of affairs the Indian Department advised[679] the principal chief of the Cherokees that the Department would neither remove these alleged intruders nor permit their removal until the Cherokee council had devised a system of rules by which authority should be vested in the Cherokee courts to hear and determine all cases involving the citizenship of any person. These rules should be subject to the approval of the Secretary of the Interior, to whom an appeal should also lie from any adverse decision of those courts. As there were a number of these intruders, however, who made no claim to the right of Cherokee citizenship, it was directed by the Interior Department, in the spring of 1877, that all who should not present prima facie evidence of such right should be summarily removed from the Territory. The main cause of difficulty, however, continuing unadjusted, the principal chief of the Cherokees asked the submission of the subject, from the Cherokee standpoint, to the Attorney-General of the United States for his opinion. This was done in the spring of 1879,[680] by the Commissioner of Indian Affairs through the Secretary of the Interior, wherein the former, alleging that the question submitted by the Cherokee authorities did not fully meet the subject in dispute, and being desirous that a complete statement of the case should be presented to the Attorney-General, suggested three additional inquiries for the consideration of that officer. These inquiries were, first, Have the Cherokee national authorities such original right of sovereignty over their country and their people as to vest in them the exclusive jurisdiction of all questions of citizenship in that nation without reference to the paramount authority of the United States? Second, If not, do they derive any such power or right by the provisions of any of the treaties between the United States and the Cherokees? Third, Can they exclude from citizenship any of the Cherokees who did not remove under the provisions of the treaty of 1835 upon their removal to the Cherokee country as now defined by law? The reply[681] of the Attorney-General was to the effect that it seemed quite plain in executing such treaties as those with the Cherokees, the United States were not bound to regard simply the Cherokee law and its construction by the council of that nation, but that any Department required to remove alleged intruders must determine for itself, under the general law of the land, the existence and extent of the exigency upon which such requisition was founded.

One class of these so-called intruders, as previously suggested, was composed of colored people who resided in the Cherokee country prior to the war, either as slaves or freemen, and their descendants.

The fourth article of the treaty of July 19, 1866, contained a provision setting apart a tract within the Cherokee country known as the Canadian district, for the settlement and occupancy of "all the Cherokees and freed persons who were formerly slaves of any Cherokee, and all free negroes not having been such slaves who resided in the Cherokee Nation prior to June 1, 1861, who may within two years elect not to reside northeast of the Arkansas River and southeast of Grand River."

The fifth article of the same treaty guaranteed to such persons as should determine to reside in the district thus set apart the right to select their own local officers, judges, etc., and to manage and control their local affairs in such manner as seemed most satisfactory to them not inconsistent with the constitution and laws of the Cherokee Nation or of the United States. Again it was provided by the ninth article of the treaty that all freedmen who had been liberated by voluntary act of their former owners or by law, as well as all free colored persons who were in the country at the commencement of the rebellion and were still residents therein or who should return within six months and their descendants, should have all the rights of native Cherokees.

Congressional legislation was sought in 1879, having in view the enforcement of this ninth article, but it failed of consummation.[682] The Cherokee council, in the mean time had passed[683] an act urging upon the United States the adoption of some measures calculated to reach a satisfactory adjustment of the status of the colored people within their jurisdiction, and requested the attendance of some properly authorized representative of the Government at their ensuing council for consultation as to the most satisfactory method of settling the vexed question. United States Indian Agent Tufts was accordingly instructed[684] to attend the council, which he did. It resulted in the passage[685] of an act by that body authorizing the principal chief to appoint a commission of three Cherokees to confer with the United States agent and draft articles of agreement, which should, after receiving the approval of the council and of Congress, be considered as permanently fixing the status of the colored people. The agent, however, soon discovered that no action looking to the full recognition of the rights to which they were entitled was likely to receive favorable consideration. It seems from his report[686] that it was still very unpopular in the Cherokee Nation to advocate any measure conceding to the colored people the same rights enjoyed by the Cherokees themselves, and that until a radical revolution of public sentiment should take place among them it was useless to expect any favorable action from the national council. Agent Tufts concluded his report with a recommendation that a commission be appointed By the Interior Department and instructed to hold sessions in the Cherokee country, hear evidence, and determine the status of each disputed claimant to citizenship, subject to the final revision and approval of the Department. Inspector Ward and Special Agent Beede were, therefore, instructed[687] to consult with Agent Tufts, and, after familiarizing themselves with the question in all its details, to visit the executive officers of the Cherokee Nation and see if some satisfactory solution of the troublesome problem could be brought about. This conference, like all previous efforts, failed of accomplishing the desired end. Thus the question still stands, and all those persons who have been able to make out a prima facie showing of Cherokee citizenship, under the ruling of the Department, are allowed to remain in the Territory unmolested.