3. Quapaw, negotiated at Park Hill, October 4, 1861
1. Wichita, etc., negotiated at the Wichita Agency near the False Washita River, August 12, 1861
2. Comanche, negotiated at the Wichita Agency, August 12, 1861
Although all the treaties, made in 1861 by Albert Pike, were negotiated under authority[260] of the Act of the Provisional Congress of the Confederate States, approved May 21, 1861, by which the Confederacy offered and agreed to accept the protectorate of the Indian tribes west of Arkansas and Missouri, only those made with the great tribes contained a statement,[261] definitely showing that the protectorate had been formally offered, formally accepted and formally assumed. Thus, in a very unequivocal way, Creeks, Choctaws, Chickasaws, Seminoles, and Cherokees, all signified[262] their willingness to transfer their allegiance from the United to the Confederate States. The smaller tribes seem not to have been asked to make the same concession and their nationality was, in no sense, recognized. They acted more or less under duress or compulsion, and the very negotiation of treaties with them was taken as a full compliance with the confederate scheme.
The nationality of the great tribes, or more properly speaking, their political importance, was still further recognized by clauses guaranteeing territorial and political integrity,[263] representation by delegates[264] in the Confederate Congress, and the prospect[265] of ultimate statehood. The guarantee of territorial integrity was, of a certainty, not new. It had been inserted into various removal treaties as a safeguard against a repetition of the injustice that had been meted out to the Indians by the Southern States in Jackson’s day. It comprised, in effect, a solemn promise that no state or territorial lines should ever again circumscribe the particular domain of the Indian nation securing the guarantee; and that state or territorial laws, as the case might be, should have no operation within the Indian country. The idea of congressional representation[266] was also not new, but where it had previously been but a promise or a mere contingency, it was now an assured fact, a thing definitely provided for. Ultimate statehood had, however, attached to it the old time elements of uncertainty, which is not at all surprising, considering that Walker, in his instructions[267] to Hubbard, had positively spoken against it.
All the treaties, without distinction of class, recognized the land rights of the Indians and their existing territorial limits, but with the usual restriction upon alienation to foreign powers. A sale or cession to a foreign state, without the consent of the Confederate States, was to result in forfeiture and reversion to the Confederate States. By the Choctaw and Chickasaw Treaty, the arrangement,[268] already satisfactorily reached, for a Chickasaw country distinct from a Choctaw was continued, the Indians of both tribes being given the privilege of having their particular land surveyed and sectionized whenever they might so please, provided it be done by regular legislative process.[269] The same treaty transferred[270] the lease of the Wichita Reserve from the United to the Confederate States and limited it to ninety-nine years. Practically the same bands of Indians were to be accommodated in this Leased District as before; namely, those whose permanent ranges were south of the Canadian or between it and the Arkansas. The New Mexican Indians were still to be absolutely excluded. The Choctaw and Chickasaw Indians reserved the right to pass upon the accommodation of any other Indians than those specifically mentioned in the treaty. The individual bands, so accommodated in the Leased District, were to be settled upon reserves and to hold the same in fee. Finally, the treaty placed,[271] for the time being, the Wichitas and their fellow reservees exclusively under the control of the Confederate States with a limited jurisdiction resting in the Choctaw Nation and a full right of settlement in Choctaws and Chickasaws.
In regard to special features of the land rights of tribes other than those already mentioned, it is well to observe, perhaps, that the title to the reservation then occupied by the Seminoles was admitted to be dependent upon Creek sufferance;[272] that the United States patent of December 31, 1838, was recognized[273] as protecting the Cherokee; and that the Osage lands in Kansas were inferentially covered by the Confederate guarantee, given that tribe, of title in perpetuity.[274] The Confederate States, moreover, agreed to indemnify[275] the Cherokees should their Neutral Lands be lost to them through the misfortune of the war. It is rather interesting to see that this new government, in promising the insignificant tribes a permanent occupancy of their present holdings, made use of the same high-flown, meaningless language that the United States had so long used; but Albert Pike knew better than to assure the truly powerful tribes that they should hold their lands themselves and in common “as long as the grass should grow and the waters run.” That language could yet be made appealing and effective, though, in official dealings with weak Wichitas,[276] Senecas, and Shawnees,[277] and, strange as it may seem, even with Creeks.[278] In reciprocal fashion, the wild Comanches could most naïvely promise[279] to hold the Confederate States “by the hand, and have but one heart with them always.”
Speaking of indemnification, we are reminded of other very important financial obligations assumed by the Confederacy when it made its famous treaties with the Indians west of Arkansas. Those financial obligations comprised the payment of annuities due the tribes from the United States in return for land cessions of enormous extent. They also comprised the interest on various funds, such as the Orphan Creek fund, education funds, and the like. Albert Pike had been given no specific authority to do this but he knew well that no treaties could possibly be made without it. It was not very likely that the slaveholding tribes would surrender so much wealth for nothing, and so Pike argued, when justifying himself and his actions later on. In his capacity as commissioner with plenary powers, he also promised the Indians that the Confederacy would see to it that their trust funds, secured by southern bonds, should be rendered safe and negotiable. Over and above all this, the government of the Confederate States made itself responsible for claims for damages of various sorts that the different tribes had brought or were to bring against the United States. Three good instances of the same are the following: the claim of the Cherokees for losses, personal and national, incident to the removal from Georgia; the claim[280] of the Seminoles for losses sustained by reason of General Thomas S. Jesup’s emancipation[281] order during the progress of the Second Seminole War; and the claim of the Wichitas against the United States government for having granted to the Choctaws the land that belonged by hereditary preëmption to them and had so belonged from time out of mind. It is exceedingly interesting to know that these Wichitas had been colonized on the very land they claimed as indisputably their own.
In all the treaties, negotiated by Pike, except the two of the Third Class,[282] the Wichita and the Comanche, the institution of slavery was positively and particularly recognized, recognized as legal and as having existed from time immemorial. Property rights in slaves were guaranteed. Fugitive Slave Laws were declared operative within the Indian country, and the mutual rendition of fugitives was promised throughout the length and breadth of the Confederacy. The First Class of treaties differs from the Second in this matter but only in a very slight degree. The latter condenses in one clause[283] all that bears upon slavery in its various aspects, the former separates the discussion of the legality of the institution from that of the rendition of slaves. Of the First Class, the Creek Treaty[284] constituted the model; of the Second, the Osage.[285]