The treaty of 1833, assigning the first described tract to the western Cherokee, states that the United States agrees to “guaranty it to them forever, and that guarantee is hereby pledged.” By the same treaty, “in addition to the seven millions of acres of land thus provided for and bounded, the United States further guaranty 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 said seven millions of acres, as far west as the sovereignty of the United States and their right of soil extend ... and letters patent shall be issued by the United States as soon as practicable for the land hereby guaranteed.” All this was reiterated by the present treaty, and made to include also the smaller (second) tract, in these words:
Art. 3. The United States also agree that the lands above ceded by the treaty of February 14, 1833, including the outlet, and those ceded by this treaty, shall all be included in one patent, executed to the Cherokee nation of Indians by the President of the United States, according to the provisions of the act of May 28, 1830....
Art. 5. The United States hereby covenant and agree that the lands ceded to the Cherokee nation in the foregoing article shall in no future time, without their consent, be included within the territorial limits or jurisdiction of any state or territory. But they shall secure to the Cherokee nation the right of their national councils to make and carry into effect all such laws as they may deem necessary for the government and protection of the persons and property within their own country belonging to their people or such persons as have connected themselves with them: Provided always, that they shall not be inconsistent with the Constitution of the United States and such acts of Congress as have been or may be passed regulating trade and intercourse with the Indians; and also that they shall not be considered as extending to such citizens and army of the United States as may travel or reside in the Indian country by permission, according to the laws and regulations established by the government of the same....
Art. 6. Perpetual peace and friendship shall exist between the citizens of the United States and the Cherokee Indians. The United States agree to protect the Cherokee nation from domestic strife and foreign enemies and against intestine wars between the several tribes. The Cherokees shall endeavor to preserve and maintain the peace of the country, and not make war upon their neighbors; they shall also be protected against interruption and intrusion from citizens of the United States who may attempt to settle in the country without their consent; and all such persons shall be removed from the same by order of the President of the United States. But this is not intended to prevent the residence among them of useful farmers, mechanics, and teachers for the instruction of the Indians according to treaty stipulations.
Article 7. The Cherokee nation having already made great progress in civilization, and deeming it important that every proper and laudable inducement should be offered to their people to improve their condition, as well as to guard and secure in the most effectual manner the rights guaranteed to them in this treaty, and with a view to illustrate the liberal and enlarged policy of the government of the United States toward the Indians in their removal beyond the territorial limits of the states, it is stipulated that they shall be entitled to a Delegate in the House of Representatives of the United States whenever Congress shall make provision for the same.
The instrument was signed by (Governor) William Carroll of Tennessee and (Reverend) J. F. Schermerhorn as commissioners—the former, however, having been unable to attend by reason of illness—and by twenty Cherokee, among whom the most prominent were Major Ridge and Elias Boudinot, former editor of the Phœnix. Neither John Ross nor any one of the officers of the Cherokee Nation was present or represented. After some changes by the Senate, it was ratified May 23, 1836.[315]
Upon the treaty of New Echota and the treaty previously made with the western Cherokee at Fort Gibson in 1833, the united Cherokee Nation based its claim to the present territory held by the tribe in Indian Territory and to the Cherokee outlet, and to national self-government, with protection from outside intrusion.
An official census taken in 1835 showed the whole number of Cherokee in Georgia, North Carolina, Alabama, and Tennessee to be 16,542, exclusive of 1,592 negro slaves and 201 whites intermarried with Cherokee. The Cherokee were distributed as follows: Georgia, 8,946; North Carolina, 3,644; Tennessee, 2,528; Alabama, 1,424.[316]
Despite the efforts of Ross and the national delegates, who presented protests with signatures representing nearly 16,000 Cherokee, the treaty had been ratified by a majority of one vote over the necessary number, and preliminary steps were at once taken to carry it into execution. Councils were held in opposition all over the Cherokee Nation, and resolutions denouncing the methods used and declaring the treaty absolutely null and void were drawn up and submitted to General Wool, in command of the troops in the Cherokee country, by whom they were forwarded to Washington. The President in reply expressed his surprise that an officer of the army should have received or transmitted a paper so disrespectful to the Executive, the Senate, and the American people; declared his settled determination that the treaty should be carried out without modification and with all consistent dispatch, and directed that after a copy of the letter had been delivered to Ross, no further communication, by mouth or writing, should be held with him concerning the treaty. It was further directed that no council should be permitted to assemble to discuss the treaty. Ross had already been informed that the President had ceased to recognize any existing government among the eastern Cherokee, and that any further effort by him to prevent the consummation of the treaty would be suppressed.[317]
Notwithstanding this suppression of opinion, the feeling of the Nation was soon made plain through other sources. Before the ratification of the treaty Major W. M. Davis had been appointed to enroll the Cherokee for removal and to appraise the value of their improvements. He soon learned the true condition of affairs, and, although holding his office by the good will of President Jackson, he addressed to the Secretary of War a strong letter upon the subject, from which the following extract is made: