The American Indian as Slaveholder and Seccessionist / An Omitted Chapter in the Diplomatic History of the Southern Confederacy

by Annie Heloise Abel

Aside from the things to which reference has already been made, the Confederate Indian treaties were, in a variety of ways and to the same extent that the Confederate constitution itself was, a reflection upon past history. To avoid the friction that had always been present between the red men and their neighbors, an attempt was now made to redefine and to readjust the relations of Indians with each other both within and without the tribe; their relations with white men considered apart from any political organization; their relations, either as individuals or as tribes, with the several states of the Confederacy; and their relations with the central government. In general, their rights, civil, political, and judicial, as men and as semi-independent communities were now specified under such conditions as made for what in times past would have been regarded as full recognition, and even for enlargement. Indian rights were at a premium because Indian alliances were in demand.

The relations of Indians with Indians need not be considered at length. Suffice it to say that many clauses were devoted to the regulation of the affairs of those tribes that were, either politically or ethnologically, closely connected with each other; as, for example, the Choctaws and Chickasaws on the one hand and the Creeks and Seminoles on the other. Still other clauses assured the tribes of protection against hostile invasion from red men and from white, and assured all the great tribes, except the Cherokees,[286] of similar protection against domestic violence.[287] The Cherokees, very possibly, were made an exception because of the known intensity of their factional strife and hatred, which, purely for its own selfish ends, the Confederacy had done so much to augment. There may also have been some lingering doubt of John Ross’s sincerity in the matter of devotion to the Confederacy. The time had been and might come again when the Confederacy would find it very expedient to play off one faction against another. Injuries coming to the Indians from a failure to protect were to be indemnified out of the Confederate treasury. Could the United States, throughout the more than a hundred years of its history have had just such a law, its national treasury would have been saved millions and millions of dollars paid out in claims, just and unjust, of white men against the Indians.

As affecting their relations with white men, the Indians were conceded the right to determine absolutely, by their own legislation, the conditions of their own tribal citizenship. This would mean, of course, the free continuance of the custom of adoption, a custom more pernicious in Indian history than even the principle of equal apportionment in Frankish; because it was the entering wedge to territorial encroachment. The white man, once adopted into the tribe as a citizen, was to be protected against unjust discrimination or against the forfeiture of his acquired status. The provisions against intruders were legitimately severe, those of the United States had never been severe enough. The executive power had always been very weak and very lax but now it was to reside in the tribal Council and would bid fair to be firm because interested, or, perhaps, we should say disinterested. The Confederacy, on its part, promised that the aid of the military should be forthcoming for the expulsion of intruders on application by the agent, should the tribal authority prove inadequate. The Indians might compel the removal of obnoxious men from agency and military reserves. Unauthorized settlement within the Indian country by citizens of the Confederate States was absolutely forbidden under pain of punishment by the tribe encroached upon.

With respect to Indian trade, there was considerable innovation and considerable modification of existing laws. For years past, the Indians of the great tribes had chafed under the restrictions which the United States government had placed upon their trade and, unquestionably, no other single thing had irritated them more than the very evident monopoly right which the United States had given to a few white men over it. Indian trade, under federal regulations, was nothing more nor less than an extension of the protective policy, a policy that was destructive of all competition and that put the Indian, often to the contempt of his intelligence, at the mercy of the white sharper. Indian commissioner after Indian commissioner had protested against it, but all in vain. George W. Manypenny, particularly, had tried[288] to effect a change; for he was himself convinced that, if the Indians were capable of self-government, they were certainly capable of conducting their own trade. Needless to say, Manypenny’s efforts were entirely unavailing. The Indian trade in the hands of the licensed white trader, although a pernicious thing for the Indian, was an exceedingly lucrative business for enterprising American citizens, white men who were, unfortunately, in possession of the elective franchise but of little else that was honorable and the government, controlled by constituents with local interests, dared not surrender it to the unenfranchised Indians no matter how highly competent they might be. Thus the Indian country, throughout its entire extent, was exploited for the sake of the frontiersman. Moreover, the annuity money, a just tax upon a government that had received so much real estate from the aborigines, instead of being spent judiciously to meet the ends of civilization and in such a way as to reflect credit upon the donor, who after all was a self-constituted guardian, went right back into the pockets of United States citizens but, of necessity, into those of only a very limited number of them.

Because it was a matter of expediency and not because it was a principle that it believed in, otherwise it would have given it to the weak tribes as well as to the strong, the Confederacy gave to the Indians of the great tribes, but not to all in exactly the same measure,[289] the control of their own trade. It did not do away with the post trader, as it ought to have done in order to make its reform complete, but it did deprive him of his monopoly privileges. It hedged his license about with restrictions,[290] made it subject, on complaint of the Indian and in the event of arrearages, to revocation; and, to all of the great tribes except the Seminoles, it gave the power of taxing his goods, his stock in trade, usually a rather paltry outfit. No better precaution could have possibly been devised against exorbitant charging. An ad valorem tax would most certainly have quite eliminated the fifty, the one hundred, and the two hundred per cents of profit. As a matter of fact, the extravagantly high prices of the ordinary Indian trader would be, for most persons, positively prohibitive. The Confederacy further bound itself to pay to the Indians an annual compensation for the land and timber used by the trader.

The questions settled as between the several states and the Indian tribes were chiefly[291] of property rights and of civil and criminal rights and procedure. In addition to their property right in slaves, the Indians were at last admitted to have a possible right in other things, in land, for instance, that might lie within the limits of a state. This they were henceforth to hold, dispose of as they pleased, and bequeath by will.[292] Restrictions, likewise, upon their power freely to dispose of their chattels,[293] were removed, a coördinate concession, but one that did not so much affect their relations with a given individual state as their relations with the central government. To such[294] of the Indians as were not to be brought within the jurisdiction of the Confederate States District Courts[295] that were to be created within the Indian country, the right was given to sue and to implead in any of the courts of the several states. To Indians generally of the great tribes was given the right to be held competent as witnesses[296] in state courts, and, if indicted there themselves, to subpoena witnesses and to employ counsel.[297] The Cherokees, the Choctaws, and the Chickasaws were also granted the right of recovery[298] as against citizens of the Confederate States. Should recovery not be possible, the Confederacy was to stand the loss. But more than anything else reciprocal right of extradition was henceforth to be accorded. This was to exist as between tribe and tribe[299] and, with some slight exceptions, as between tribe and state. An examination of the various treaties reveals a steady development in the matter of this concession. The Creek Treaty,[300] which was the first to be negotiated, made extradition a rather one-sided[301] affair. The tribe was to yield the criminal to the state, but, not reciprocally, the state to the tribe. This verbal inequality would not have so much mattered had there been a possibility that in the sequel it would have been interpreted, as in the states, in terms of executive courtesy and discretion; but the chances were that a state would have made it a matter of absolute obligation with the tribe. Reciprocity[302] found its way into the second treaty, however, and also into all the later ones of the First Class. Finally, be it remarked, that as a climax to this series of judicial concessions, full faith and credit[303] were to be given by the one Indian nation or Confederate state, as the case might be, to all legal processes, decisions, and acts of the other.

There yet remain two provisions[304] of importance that were intended to put the Indian nations on a basis of equality with the states. They are provisions rather particular in their nature, however, and, in their full operation, would have affected Texas and Arkansas much more nearly than any other members of the Southern Confederacy. The first of these provisions is to be found, as a grant of mutual rights, only in treaties of the First Class and in two only of those, the Choctaw and Chickasaw and the Cherokee. The omission from the Creek and Seminole treaties was due, most likely, to geographical conditions; but the lack of reciprocity in the Osage, the one treaty of the Second Class in which a suggestion of the provision occurs, was just as surely due to the weakness of the tribe from which the privilege was exacted. The provision comprehended the use of navigable streams within the limits of the Confederacy and the Indians specified were to have the same rights in the premises as the citizens of the Confederate States. Osage[305] streams and water courses were, however, to be open to white people but not conversely Confederate waters to the Osages. The clauses in treaties of the First Class, embodying this provision, comprehended all navigable streams whatsoever but had particular application to the Red and Arkansas Rivers, the Choctaw[306] and Chickasaw to the former and the Cherokee[307] to the latter. The rights of ferrying on these streams were to be open alike to white and red men living upon their banks.

The second provision was couched in terms of general amnesty. The Indians were to forgive wholesale the citizens of the individual Confederate states for their past offences and, reciprocally, the states were to forgive and pardon the Indians for theirs, or, rather, the government of the Confederate States was to use its good offices to persuade and induce them to do so.[308] The Choctaw and Chickasaw Treaty contained, in addition to this general clause, a particular one bringing out again the close connection with Texas and Arkansas. It reads thus:

... And the Confederate States will especially request the States of Arkansas and Texas to grant the like amnesty as to all offences committed by Choctaw or Chickasaw against the laws of those States respectively, and the Governor of each to reprieve or pardon the same, if necessary.[309]

Some evidence of the special interest Texas might have in the matter came out rather prominently in the treaties of the Third Class, the amnesty in them was particular while the amnesty in the treaties of the other two classes was general. This is what the Wichita and Comanche say: