Western North Carolina; a history, 1730-1913, Part 55

Author: Arthur, John Preston
Publication date: 1973
Publisher: Spartanburg, S.C., Reprint Co
Number of Pages: 744

USA > North Carolina > Western North Carolina; a history, 1730-1913 > Part 55

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HISTORY OF WESTERN NORTH CAROLINA

ing June 30, 1892, when the contract system was terminated and the Government assumed direct control. Under the joint arrangement, with some aid at the outset from the North Carolina Meeting, work was begun in 1881 by Thomas Brown with several teachers sent out by the Indiana Friends, who established a small training school at the agency headquar- ters at Cherokee, and several day schools in the outlying set- tlements. He was succeeded three years later by H. W. Spray, an experienced educator, who, with a corps of efficient assistants and greatly enlarged facilities, continued to do good work for the elevation of the Indians until the close of the contract system eight years later. After an interregnum, dur- ing which the schools suffered from frequent changes, he was reappointed as government agent and superintendent in 1898, a position which he still holds in 1901. To the work con- ducted under his auspices the East Cherokee owe much of what they have today of civilization and enlightenment.

EASTERN BAND SUES IN COURT OF CLAIMS. "The East Cherokee had never ceased to contend for a participation in the rights and privileges accruing to the western nation under treaties with the government. In 1882 a special agent had been appointed to investigate their claims and in the following year, under authority of Congress, the eastern band of Cher- okee brought suit in the Court of Claims against the United States and the Cherokee Indians. The case was decided adversely to the eastern band, first by the Court of Claims in 1885, and finally, on appeal, by the Supreme Court on March 1, 1886, that court holding in its decision that the Cherokee in North Carolina had dissolved their connection with the Cherokee nation and ceased to be a part of it when they refused to accompany the main body at the Removal, and that if Indians in North Carolina or in any state east of the Mississippi wished to enjoy the benefits of the common property of the Cherokee Nation in any form whatever they must be readmitted to citizenship in the Cherokee Nation and comply with its constitution and laws.

EASTERN BAND INCORPORATED. "In order to acquire a more definite legal status, the Cherokee residing in North Carolina-being practically all those of the eastern band having genuine Indian interests-became a corporate body under the laws of the state in 1889. In 1894 the long-stand-

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ing litigation between the East Cherokee and a number of creditors and claimants to Indian lands within and adjoining the Qualla boundary was finally settled by a compromise by which the several white tenants and claimants within the boundary agreed to execute a quitclaim and vacate on pay- ment to them by the Indians of sums aggregating $24,552, while for another disputed adjoining tract of 33,000 acres the United States agreed to pay, for the Indians, at the rate of $1.25 per acre. The necessary government approval having been obtained, Congress appropriated a sufficient amount for carrying into effect the agreement, thus at last completing a perfect and unencumbered title to all the lands claimed by the Indians, with the exception of a few outlying tracts of comparative unimportance.

EXACT LEGAL STATUS STILL IN DISPUTE. "The exact legal status of the East Cherokee is still a matter of dispute, they being at once wards of the government, citizens of the United States, and (in North Carolina) a corporate body under state laws. They pay real estate taxes and road ser- vice, exercise the voting privilege and are amenable to local courts, but do not pay poll tax or receive any pauper assist- ance from the counties; neither can they make free contracts or alienate their lands. Under their tribal constitution they are governed by a principal and an assistant chief, elected for a term of four years, with an executive council appointed by the chief, and sixteen councilors elected by the various settle- ments for a term of two years. The annual council is held in October at Cherokee, on the reservation, the proceedings being in the Cherokee language and recorded by their clerk in the Cherokee alphabet, as well as in English.

PRESENT MATERIAL CONDITIONS. "The majority are fairly comfortable, far above the condition of most Indian tribes, and but little, if any, behind their white neighbors. In literary ability they may even be said to surpass them, as in addition to the result of nearly twenty years of school work among the younger people, nearly all the men and some of the women can read and write their own language. All wear civilized costumes, though an occasional pair of mocca- sins is seen, while the women find means to gratify the racial love of color in the wearing of red bandanna kerchiefs in place of bonnets. The older people still cling to their ancient rites

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and sacred traditions, but the dance and the ballplay wither and the Indian day is nearly spent."

EASTERN BAND TRY TO SELL TIMBER. Since Mr. Moody's concluding words were written the courts have managed still more to confuse the legal status of the Cherokees, for in Sep- tember, 1893, the Eastern Band of Cherokee Indians, acting as a corporation of the State of North Carolina, by virtue of Chapter 211, Private Laws of 1889, sold and conveyed to David L. Boyd certain timber on the Cathcart tract of the Qualla boundary, containing about 30,000 acres. In January, 1894, David L. Boyd sold said trees to H. M. Dickson and Wil- liam T. Mason, who afterwards conveyed them to the Dick- son-Mason Lumber Company. Before beginning to cut these trees the Dickson-Mason Company was apprised of the fact that the Department of the Interior of the United States had not sanctioned the sale of this timber, and refused to ratify the contract. This company, on the other hand, had been advised that the band of Indians were citizens of North Caro- lina and not tribal Indians, and, therefore, had the right to convey the trees; and desiring to have the question tested by the courts, put a few men to work cutting the timber, at the same time notifying the agents of the Government and the United States District Attorney of the fact. The government instituted a suit in which it asked a perpetual injunction against the Dickson-Mason Company; but at the next term of the United States Court at Asheville, in November, 1894, the government voluntarily took a nonsuit in the cause, the Attorney General holding that "the legal status of the Indians in question is that of citizens of North Carolina; that they have been in all respects citizens since the date of or soon after the treaty with the Cherokees of 1885 [1835?], and this with the consent of the United States expressed in that treaty, by the election of the Indians and the consent of North Carolina. They have voted at all elections for half a century, and are citizens of the United States. It seems clear that Congress could not, by the Act of July 27, 1868, or otherwise (if such was the intention) make of them an Indian tribe or place them under the control of the United States as Indians, any more effectually than if they had been white citizens of Massachusetts or Georgia (Eastern Band Cherokee Indians v. the United States and Cherokee Nation,

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117 U. S. 228). Neither could such citizens of North Carolina make themselves a tribe of Indians within that State."

INTERIOR DEPARTMENT INTERVENES. Accordingly, the Dickson-Mason Company began making large and expensive preparations for cutting the timber on the Cathcart bound- ary. But, it turned out later, that the Interior Department was not satisfied with this disposition of the matter and com- menced another action based on the same facts, but alleging fraud in obtaining the Boyd contract from the Indians. Judge C. H. Simonton (in U. S. v. Boyd, 68 Fed. Rep., 587) held that the Eastern Band of Cherokees were not tribal Indians, but wards of the Government which, like any other guardian, had the right to see that any contract made by them was for their benefit and not to their detriment. In an opinion filed by him he held that "the case of the Chero- kee trust fund (117 U. S., 288) does not conflict with these views. That case decides that this Eastern Band of Chero- kee Indians is not a part of the nation of Cherokees with which this Government treats, and that they have no recog- nized separate political existence. But, at the same time, their distinct unity is recognized, and the fostering care of the Government over them as such distinct unit. This being so, the United States have the right in their own Courts to bring such suits as may be necessary to protect these Indians."

GOVERNMENT APPEALS FROM DECISION. The case was then referred to Hon. R. M. Douglas, Standing Master, who, in No- vember, 1895, found that the price paid for the timber ($15,000) was fair and that there was no fraud in making the contract. This report was confirmed, but the Government appealed to the Circuit Court of Appeals from so much of the decree as held that the Court had the power to permit the parties to carry out the contract without the sanction of the Interior Department, upon the ground that "these Indians were tribal Indians and embraced within the terms of congressional en- actments for the protection of tribal Indians." This con- tention was sustained on appeal (see U. S. v. Boyd and others, 83 Fed. Rep., 547), though "no reference is made by the Court to the decision of the United States Supreme Court in the case of the Eastern Band of the Cherokee Indians v. United States and Cherokee Nation (117 U. S. Rep., 288) where the whole subject is discussed, and where, on page 309, the Court

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says : '. they have never been recognized by the United States; no treaty has been made with them; they can pass no laws; they are citizens of that State [North Carolina] and bound by its laws.'"

LUMBER COMPANY APPEALS. From this decision the Dick- son - Mason Company appealed to the United States Supreme Court in May, 1888, but before its perfection the Interior Department re-investigated the contract of sale of the timber, and fully ratified the same. The appeal, there- fore, was abandoned; and the anomaly remains that the Cherokees are citizens of North Carolina, according to the United States Supreme Court, while they are still tribal In- dains whose contracts are void without the approval of the Department of the Interior, according to the decision of an inferior tribunal, that of the U. S. Court of Appeals. (For a full report of these cases see Private Calender No. 725, 61st Congress, 3d Session, House Rep. Report No. 1926, January 17, 1911.) Thus each party to this proceeding obtained what was sought by it; the Dickson-Mason company the right to cut and remove the timber, and the Interior Depart- ment a decision which gives it a right to review every contract made by the Eastern Band of Cherokees. And it is well that this is so, for while there was no fraud in this par- ticular contract, nevertheless, there may be in contracts yet to be made.

UNITED STATES VACILLATES, STATE STANDS FIRM. The above is the work of the United States authorities. So far as North Carolina is concerned, her courts have finally and forever settled the status of the Cherokee Indians in her borders as citizens of this State, as will fully appear by refer- ence to Frazier v. Cherokee Indians, 146 N. C., 477, and State v. Wolfe, 145 N. C., 440.

FINAL DISTRIBUTION. "In 1910 was distributed to the Eastern Band of Cherokees about $133 per capita. 8 This is the final payment on their claims against the Government for a balance due them under the New Echota treaty of 1835- 1836, under which the Government had promised to pay the Eastern Band of Cherokees (before the removal) $5,000,000 for a release to all of their lands east of the Mississippi river, part of which was to be paid in cash and the balance invested in bonds and held for their benefit. But there is another pro-

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vision under which each Indian was to be paid for transportation to the Indian Territory and for one year's subsistence after arriv- ing there. There was a question as to whether this money was to be in addition to the $5,000,000 to be paid for the lands or was to be deducted from that fund. In a sub- sequent settlement with the Government (1852) the Indians gave a receipt which was in full of all claims and demands, although at that time the question of this transportation and subsistence payment had not been discussed. º It was after- wards raised, however, but the United States claimed that the Cherokees were estopped by their receipt above referred to. Thus matters stood when Hon. Hoke Smith, Secretary of the Interior under President Cleveland, sought to pur- chase of the Western Band the Cherokee Strip of the Indian Territory (25 Stat., 1005 of 1889). The Cherokees then re- fused to consider any proposition to sell until the Govern- ment agreed to allow them to prove any claim they might still have against the Government under the New Echota treaty. This the Government agreed to December 19, 1891, and the Cherokee Strip was sold. The Interior Department investigated their claims and reported that there was due the Indians $1,111,284.71 which, at five per cent from 12th June, 1838, amounted to about $4,500,000. But the Department of Justice decided against the admission of the Department of the Interior, the Attorney General holding that the receipt of 1852 estopped the Indians from setting up any further claims, March 2, 1893. Whereupon, Congress passed an act authorizing the Indians to set up their contentions before the Court of Claims, which decided in favor of the Indians. But the United States appealed to the Supreme Court, which sustained the Court of Claims, with some slight modifica- tions. An effort was made to pay out this money per stirpes, but that was found to be impracticable and the payment had to be made per capita, owing to intermarriages between the Indians and the whites. According to the roll of 1851 the Eastern Band composed about one-ninth of the Cherokee Nation, but in the final payment they were found to be only about one eighteenth of the whole. See Eastern Cherokees v. United States, No. 23214 Court of Claims, decided March 7, 1910."

WESTERN CHEROKEE NATION DISSOLVED. In 1887 Con- gress abandoned the reservation plan, and enacted the Land

5% HISTORY OF WESTERN NORTH CAROLINA

Allotment Law, by which the land was divided into indi- vidual holdings to be held in trust by the government til each individual owner was considered competent to hold it in for. This has now been done, the task of converting the Cherokees from a tribe into a body of individual owners of land having been commenced in 1902. Prior to that date. in 1836, Congress had passed the Curtis act providing for the valuation and allotment of the lands of the Five Civil- ized Tribes. In 1906 the legislative, and judicial depart- ments of the Cherokees ceased; but the executive branch was kept in existence under Principal Chief W. C. Rogers. When Oklahoma became a state in 1907 all members of the tribe became citizens of the new state. By July 1, 1914, all community property had been converted into cash, amount- ing to about $600,000, or about $15 per capita, to 41,798 members, including about 2,000 full-blooded whites and 3,000 full - blooded negroes, descendants of slaves freed in 1865. The four other nations, Creek, Chickasaw, Seminole and Chocktaw, will soon pass into full citizenship also. The Cherokees were admittedly the most advanced native Ameri- can race since the Spanish exterminated the Incas and Aztecs. Ethnologically the Cherokees are said to have been a branch of the Iroquois family, though never allied with them politi- cally. It is claimed that they were driven from their orig- inal home in the Appomattox basin, Virginia, into Georgia, the Carolinas and Tennessee. When the Supreme Court of the United States sustained the Cherokee treaties, Andrew Jackson remarked: "Now let John Marshall enforce his decision."

POPULATION. There are at this time in Swain, Jackson, Cherokee and Graham counties, North Carolina, a consider- able number of Cherokee Indians. "The total population of the Cherokees, as given by the superintendent in charge for 1911, is 2,015. The enrollment in the different schools is as follows:

Cherokee Indian School (Boarding) 175

Birdtown Day School. 45

Snow Bird Gap (Day School). 34

Little Snow Bird 20

"A considerable number attend public schools where the degree of Indian blood is small. The non-reservation board-

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ing schools provided by the Federal Government also have a number of pupils from this reservation."

INDIAN WEAPONS. From the Handbook of American Indians (Bulletin 30 of the Bureau of American Ethnology, Smithsonian Institution, 90-94) can be obtained a full de- scription of the arrowheads, arrows, bows and quivers, etc., of the American Indians; with pictures of arrowshaft straight- eners, stone arrowshaft rubber, and the various methods of arrow release. It is generally supposed that the process by which the Indians manufactured the arrow- and spear-heads out of flint is among the lost arts; but Dr. W. H. Holmes, head curator of the department of anthropology of the Smith- sonian Institution, wrote me, August 29, 1913, that "the processes referred to are well known and have been observed in practice among a number of western tribes, and the art has been acquired by numerous students of the subject, among others myself. In preparing a work for publication in the near future, I have described twenty processes practiced by different primitive peoples. The flint is usually quarried from pits at Flint Ridge, Ohio, and in many parts of Georgia and the Carolinas. It is broken into fragments and the thin favorable ones are chosen and the shape is roughed out by means of small hammerstones. These hammerstones are found in great numbers in flint bearing regions and are glob- ular in shape or discoidal. Sometimes they have pits in opposite sides to accommodate the thumb and fingers while in use. When the shape is roughed out by strokes of the hammer, and the edges are in approximate shape, a piece of hard bone or antler is taken and the flakes are struck off on the edges by means of quick, hard pressure with the bone point. Sometimes the implement being shaped is held in the hand, the hand being protected by a pad of buckskin. Again, the implement being shaped is laid upon a solid surface of wood or stone beneath which is a pad of buckskin and the flakes are broken off by downward pressure of the instrument."

CHEROKEE MYTHS.

(Condensed from the 19th Annual Report of the Bureau of Ethnology.)

ORIGIN OF THE MOUNDS. Were built for town-houses from which to witness dances and games, and be above freshets.

CHEOWA MAXIMA. A bald mountain at head of Cheowa river, was the place of hornets, from a monster hornet which nested there.

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JOANNA BALD. A bald mountain between Graham and Cherokee, called "lizard place," from a great lizard with shining throat.

JUDACULLA OLD FIELD. On slope of Tennessee bald, where a giant of that name had had his residence and field.

JUDACULLA ROCK. On the north bank of Caney fork, a mile above Moses' creek, being a large soapstone slab covered with rude carvings.

NANTAHALA. A river in Macon, being a corruption of Nundayeli, or middle sun, because between the river banks the sun can be seen only at noonday. Others say it means a maiden's bosom.

NUGATSANI. A ridge below Yellow Hill, said to be the resort of fairies. The word denotes a gradual or gentle slope.

QUALLA. A name given a locality where there was a trad- ing post because a woman named Polly lived there, the In- dians pronouncing it Qually, being unable to articulate the letter p.

Soco GAP. At the head of Soco creek, and means an am- bush or where they were ambushed, from which point they watched for enemies approaching from the north. It was there they ambushed an invading party of Shawano. Hence the name.

STANDING INDIAN. A high peak at the head of Nantahala river, meaning "where the man stood" (Yunwitsulenunyi), from a rock that used to jut out from the summit, but is now broken off.

STEKOA. The W. H. Thomas farm above Whittier, the true meaning of which is lost. It does not mean "little fat," as some suppose.

SWANNANOA. It does not mean "beautiful," but is a cor- ruption of Suwali- nunna (hi), Suwali trail, the Cherokee name, not of the stream, but of the trail crossing the gap to the country of the Ani-Suwali or Cheraw.

TUSQUITTEE BALD. A mountain in Clay, meaning "where the water-dogs laughed"; because a hunter thought he heard dogs laugh there, but found that their pond had dried up, and they were on their way to Nantahala river, saying their gills had dried up.

VENGEANCE CREEK. A south branch of Valley river, be- cause of the cross looks of an Indian woman who lived there.

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WAYAH GAP. In Nantahala mountains on road from Aquone to Franklin, and is Cherokee for wolf. A fight occurred here in 1776. Some call it Warrior gap.

WEBSTER. Used to be called Unadantiyi, or "Where they conjured," though the name properly belongs to a gap three miles east of Webster on trail up Scott's creek.

McNAIR'S GRAVE. Just inside the Tennessee line is a stone-walled grave, with a slab on which is an epitaph telling of the Removal heartbreak, having this inscription: "Sacred to the memory of David and Delilah A. McNair, who de- parted this life, the former on the 15th August, 1836, and the latter on the 30th November, 1838. Their children being members of the Cherokee nation and having to go with their people to the West, do leave this monument, not only to show their regard for their parents, but to guard their sacred ashes against the unhallowed intrusion of the white man."

NOTES.

1Condensed from Literary Digest, p. 472, September 21, 1912.

"Unless otherwise noted all in this chapter is based on the Nineteenth Annual Report of the Bureau of Ethnology, 1897, Part I.

'Roosevelt, Vol. I. p. 74.

'In the Lyceum for April, 1891. pp. 22-23, the late Col. A. T. Davidson gives an ac- count of the burial of two brass field pieces by Rutherford's men in a swamp below the residence of the late Elam Slagle, and near the mouth of Warrior creek, so called because of the battle there.

IN. C. Booklet, for December, 1904.

"In Wheeler, Vol. II (pp. 205-6) is a letter from Col. Thomas to Hon. James Graham, dated October 15, 1838, in which he gives a brief account of the Eastern Band and why they were allowed to remain.

"Condensed from 19th An. Rep. Bureau Am. Ethnology, and N. C. Booklet, Vol. III, No. 2. These notes were from the Nineteenth Report, and I have already sufficiently stated that everything not otherwise noted (Note 2) is taken from that authority.

8Statement of Hon. Geo. H. Smathers, attorney for the Eastern Band, to J. P. A., May 28, 1912.

"See 9 Stat. L. 544-556-570-572; 40 Court of Claims, 281-252; 202 U. S. Rep., 101-130.

CHAPTER XXVII THE CIVIL WAR PERIOD

INTRODUCTORY REMARKS. That there were many outrages committed on and near the Tennessee line during the Civil War is too well known to admit of doubt. That all the blame does not rest on one side alone is equally certain. These moun- tains were full of "outliers, " as they were called, and they had to live somehow. They did not belong especially to either side; they simply wanted to keep out of the war. It was a great temptation to cold and hungry men on foot to steal horses, food, bedding and clothing, and many of them yielded to the desire. Raiding parties went into Tennessee from North Carolina and raiding parties from Tennessee came into the North Carolina mountains. The trails and wagon roads through these mountains were usually guarded by Confeder- ate troops. When they could not capture those who were riding or driving horses and mules from one side to the other they shot them down. Toward the close of the war lawless men robbed those they thought had money or other valuables. That the names of those who figured in this unfortunate period as oppressors or oppressed should be preserved, as far as possible, is evident to all who appreciate the duties of im- partial history. Therefore, not to keep alive unpleasant mem- ories, but to preserve names, dates and events, some of these occurrences are here related. Some of them were attended with unnecessary cruelty, but no mention is made thereof. That some of the women at home had as hard a time as the men in the field is shown by Mrs. Margaret Walker's story. The facts given in this chapter are meant merely to supple- ment those given in "The North Carolina Regiments, " pub- lished by the State in 1901.

NORTH CAROLINA IN THE CIVIL WAR. 1 From the address at Raleigh, May 10, 1904, by Hon. Theo. F. Davidson, the following is taken : "She [North Carolina] was next to the last state to secede from the Union, and in February, 1861, she voted against secession by 30,000 majority; yet, with a military population of 115,365, the State of North Carolina furnished to the Confederate army 125,000 men. . Of

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Western North Carolina; a history, 1730-1913, Part 55

Author: Arthur, John Preston Publication date: 1973 Publisher: Spartanburg, S.C., Reprint Co Number of Pages: 744

Author: Arthur, John Preston
Publication date: 1973
Publisher: Spartanburg, S.C., Reprint Co
Number of Pages: 744