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.