USA > Oklahoma > A history of the state of Oklahoma, Volume I > Part 10
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With the proposition, maintained by the Cherokee counsel, that the Cherokee Nation is a state, a distinct political society, sepa- rated from others, capable of managing its own affairs, and governing itself, the court agreed. "The acts of our government," says the court, "plainly recognize the Chero- kee Nation as a state, and the courts are bound by those acts."
The supreme court was unwilling, how- ever, to uphold the contention of the counsel that the Cherokees constituted a foreign nation. "They may more correctly perhaps be denominated domestic dependent nations. They occupy a territory to which we assert
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a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian. They look to our government for protection, rely upon its power, appeal to it for relief to their wants, and address the president as their Great Father."
The court believes the status of the In- dians, in their relations with the federal government, is defined in that clause of the Constitution that empowers Congress to "regulate commerce with foreign nations, among the several states, and with the In- dian tribes." Here are distinguished three contra-distinct classes, and within the mean- ing of the Constitution the Indian tribes could not be called "foreign nations." On Jackson in his message of December, 1830, interpreted the relations of the states and the Indians and laid a basis for ad- ministrative action. "It is a duty," de- clared the president, "which this govern- ment owes the new states, to extinguish as soon as possible the Indian title to all lands which Congress has included within their limits. When this is done the duties of the general government in relation to the states and Indians within their limits this ground the majority of the court held "that an Indian tribe or nation within the United States is not a foreign state in the sense of the Constitution, and cannot main- tain an action in the courts of the United States." Hence, concludes the court, "if it be true that the Cherokee Nation have rights, this is not the tribunal in which those rights are to be asserted. If it be true that wrongs have been inflicted, and that still greater are to be apprehended, this is not . are at an end. The Indians may leave the the tribunal which can redress the past or prevent the future. The motion for an injunction is denied."
The failure of the plea for injunction be- fore the federal supreme court had not been conclusive as a test of the sovereignty of the Cherokee Nation. Georgia had in the meantime continued to enact laws designed to be oppressive to the Indian tribes and as coercive measures for their removal from the state. One of these laws required all whites residing in the Cherokee Nation
within the chartered limits of Georgia to take an oath of allegiance to the state, and made it an offense punishable by four years' imprisonment to refuse to do so. Under this law two missionaries, Worcester and Butler, were indicted by a state court for residing without license in that part of the Cherokee country attached to Georgia. Worcester's case was made a test case, and after he had been tried and convicted to four years in the penitentiary by the state court the case was carried to the United States supreme court, where the opinion was delivered which has been reviewed on former pages, as a result of which the judicial department of the government was squarely opposed to the policy of Indian administration as then being carried out by President Jackson and his associates.
state or not, as they choose. . . The states have a right to demand [the extin- guishment of title]. It was substantially a part of the compact which made them members of our confederacy. With Georgia there is an express contract; with the new states, an implied one, of equal obligation. Why, in authorizing [various new states] to form constitutions, did Congress include within their limits extensive tracts of In- dian lands? Was it not understood by both parties that the power of the states was to
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be co-extensive with their limits, and that with all convenient dispatch the general government should extinguish the Indian title?"
The administration clearly favored the states in their contention against the In- dians. In the report of the secretary of war, December, 1830, is related concerning the visit to the Choctaws in Mississippi the preceding summer and the conclusion of treaties. "We told them the opinion en- tertained by the government as to the au- thority of Mississippi to extend over them her laws; and that the United States pos- sessed not the power to prevent it, and could not. . Arguments were the means employed. No threat was used." Under these circumstances a treaty was concluded, more than five thousand Indians being in attendance at the time. Some ob- jected and were dissatisfied, not as regards the general policy of treating, but because they believed themselves entitled to obtain large reservations.
Commenting on some reports and recom- mendations before the house of representa- tives-to induce the Indians to cross the Mississippi and make new locations on lands "which the United States will forever se- cure and guarantee to them," with a "re- versionary interest." however, to the United States-the editor of Niles Register ( March 20, 1830) states his opinion that "the argu- ment seems to begin and end with power- originally to claim, and now to possess the right of the soil. . There is no necessity for hastening a decision upon [the difficult and perplexing Indian question]- year after year those difficulties would be- come less. . . Such is the condition of this people in Georgia, Alabama, etc., hemmed in by the whites, that they must and will rapidly decrease in numbers, un-
less advancing in the arts of civilized life." The former alternative, it seems to the editor, is the general destiny of this people.
In his special message of February 22, 1831, the president enters upon a defense of his general policy in regard to the In- dians-an argument (comments the North American Review) "one of the least suc- cessful attempts to make the worse appear the better reason, that we have ever met with."
The Review then summarizes the situ- ation as follows: The treaties between the United States and Cherokee Indians recog- nize these Indians as a nation, guarantee to them the exclusive possession of and juris- diction over the territory marked out in the treaties, declare that they are not under the jurisdiction of any state, stipulate that citizens of the United States shall not settle on their territory or enter it without a pass- port, and finally state, as one of the objects of these arrangements, the establishment by the Cherokees of fixed laws and a regular government, and the preservation of their national existence. These treaties are six- teen in number, beginning with that of Hopewell, concluded under the old Con- federation in 1785, and ending with that of Washington, concluded in 1819. The act of 1802 was passed for the purpose of car- rying into effect the provisions of these and other Indian treaties. It states, among other things, that "it shall be lawful for the president to take such measures and to employ such military force as he may judge necessary to remove from lands belonging to, or secured by treaty to any Indian tribe, any citizen who shall make a settlement thereon." Instead of carrying into effect the provisions, instead of employing mili- tary force to remove the citizens who had intruded upon the territory of the Chero-
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kees under a pretended authority from the state of Georgia, the president (so charges the writer in the Review) actually removed the troops that had previously been sta- tioned in the Indian territory (Georgia), and has used, and is still using all the means in his power to remove the Indians themselves.
The president based his actions in this matter on the following reasons:
I. The clause respecting the employment of military force is not imperative.
2. The act provides, that "nothing therein contained shall be so construed as to prevent any trade or intercourse with the Indians living on lands surrounded by settlements of citizens of the United States, and being within the ordinary jurisdiction of the individual states." This provision the president interprets as "prospective in its operation, and as applicable, not only to Indian tribes, which at the time of the passage of the act were subject to the juris- diction of a state, but to such also as should thereafter become so. As soon, therefore, as Georgia had extended her jurisdiction over the Indians within her limits, orders were given to withdraw from the state the troops which had been detailed to prevent intrusion upon the Indian lands within it, and these orders have been executed."
The logic of the policy adopted by the Jackson administration for the removal of the Indians beyond the jurisdiction of the several states did not pass unattacked. The "Vassalborough Memorial," from the in- habitants of that town in Maine, prayed that the Congress should extend protection over the Indian tribes, and the Cherokees in particular, against the usurpation of state governments. The memorial reviews the Hopewell treaty of 1785, by which the United States guaranteed the Cherokees
the entire control and possession of all the lands defined by the treaty. In the thir- teen treaties made subsequently, in all the Indians were acknowledged to be an inde- pendent people, and sole and exclusive own- ers of all lands not voluntarily relinquished. The words of Washington were quoted from a treaty with the Senecas in 1790. "In future," said he, "you cannot be de- frauded of your lands; you possess the right to sell, and the right of refusing to sell your lands"; "and the United States will be true and faithful to their engage- ments." The memorialists, in noting the recent extension of state laws over the In- dians, and the activity of the general gov- ernment in dispossessing the tribes of their guaranteed homes, saw in such action "the knell of departed national virtue" and "a gross and palpable violation of public faith."
Similar memorials to Congress, imploring a "vindication of the national character" and protesting against the course adopted by the administration, were presented by citizens from Massachusetts, Pennsylvania and New Jersey. (Senate Documents, 2d Sess. 21st Cong.)
In the report of Secretary of War Lewis Cass, dated Nov. 21, 1831, attention is called to the fact that the government has decided, whether rightly or wrongly, that it has no power to interfere between the ex- ercise of the state's laws over the Indian residents. Therefore the Indians now have, says the secretary, the alternative of re- maining in their present positions, or of migrating to the country west of the Mis- sissippi. If the former, they must either retain all those institutions which constitute them a peculiar people, socially and politi- cally, or they must become a portion of that great community which is gathering round
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them, responsible to its laws, and looking to them for protection.
The removal of the tribes beyond the Mis- sissippi attracted attention from de Tocque- ville, in his "Democracy in America." He was collecting material for this work dur- ing the second administration of President Jackson, and from his observations he thus described the transfer of the Indians from the states (Quoted in Benton's "Thirty Years' View," pp. 691-2) :
"The ejectment of the Indians very often takes place, at the present day, in a regular, and, as it were, legal manner. When the white population begins to approach the limit of a desert inhabited by a savage tribe, the government of the United States usually dispatches envoys to them, who assemble the Indians in a large plain, and having first eaten and drunk with them, accost them in the following manner: 'What have you to do in the land of your fathers? Before long you must dig up their bones in order to live. In what respect is the country you inhabit better than others? Are there no woods, marshes, or prairies, except where you dwell? And can you live nowhere but under your own sun? Beyond those moun- tains which you see at the horizon-beyond the lake which bounds your territory on the west-there lie vast countries where beasts of chase are found in great abundance. Sell your lands to us, and go and live happily in those solitudes.'
"After holding this language, they spread before the eyes of the Indians firearms, woolen garments, kegs of brandy, glass necklaces, bracelets of tinsel, ear-rings, and looking glasses. If, when they have beheld all these riches, they still hesitate, it is insin- uated that they have not the means of re- fusing their required consent, and that the government itself will not long have the power of protecting them in their rights.
What are they to do? Half convinced, half compelled, they go to inhabit new deserts, where the importunate whites will not per- mit them to remain ten years in tranquillity. In this manner do the Americans obtain, at a very low price, whole provinces, which the richest sovereigns in Europe could not purchase."
These paragraphs aroused indignation among the supporters of the Jackson ad- ministration. Senator Benton in particular marked them for refutation as soon as the book appeared, and with the skill of the partisan debater collected evidence to con- tradict the statements; perhaps not with complete success as far as the essential facts were concerned, though he succeeded in pre- senting other viewpoints and much statis- tical proof that the removal was for the economic good of both parties concerned, and was undertaken at comparatively great sacrifice on part of the government. From a table prepared at his request," Senator Benton showed that the United States had paid to the Indians eighty-five millions of dollars for land purchases from 1789 to 1840. The aggregate sum paid for this pur- pose up to 1850, about ninety millions, was, said Benton, nearly six times as much as was paid for the entire Louisiana purchase, and nearly three times as much as Louis- iana, Florida and California cost. To the Creeks alone had been paid an amount greater by seven million dollars than France had received for Louisiana. Fifty-six mil- lions had been paid to the four great south- ern tribes-Creeks, Cherokees, Choctaws and Chickasaws-for the lands ceded by them. And besides this the government maintained a special department to look after the interests of the Indians, and by numerous regulations and by a large body of superintendents, agents and other officials $ 1st Sess., 26th Cong., Sen. Doc. No. 616.
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exercised extreme care for the welfare of these wards. Having recited this unex- ampled generosity on the part of the gov- ernment, Benton then endeavors to dis- credit (though he does not disprove or deny), the description of the methods used in securing the treaties and land cessions. "How unfortunate, then, in M. de Tocque- ville to write, that kegs of brandy are spread before the Indians to induce them to sell their lands. How unfortunate in represent- ing these purchases to be made in exchange for woolen garments, glass necklaces, tinsel bracelets, ear-rings and looking glasses! What a picture this assertion of his makes by the side of the eighty-five millions of dollars at that time actually paid to those Indians for their lands, and the long and large list of agricultural implements-long and large list of domestic animals and fowls -the ample supply of mills and shops, with mechanics to work them and teach their use-the provisions for schools and mis- sionaries, for building fences and houses, which are to be found more or less in every treaty with every tribe emerging from the hunter state. Great is the wrong and injury which the mistake of this writer has done to our national char- acter abroad, in representing the United States as cheating and robbing these chil- dren of the forest."
In the early months of 1830 the subject of Indian colonization was before Congress for final settlement. The bill being con- sidered was looked upon as a test of the strength of the parties upon this question. The bill passed the senate by a vote of 28 to 20, and on May 26 passed the house by the close vote of 102 to 97. The debates on the bill excited much interest, and long and strong speeches were made on both sides.
The "act of May 28, 1830," as it became known, was considered the first efficient step toward settling the policy of coloniz- ing the Indians." The first section author- ized "the president of the United States to cause so much of any territory belonging to the United States west of the river Mis- sissippi, not included in any state or organ- ized territory, and to which the Indian title had been extinguished, as he might judge necessary, to be divided into a suitable num- ber of districts, for the reception of such tribes or nations of Indians as might choose to exchange the lands where they then re- sided, and remove there, and to cause each of said districts to be so described by natural or artificial marks as to be easily distin- guished from every other." Section second authorized the president "to exchange such districts with any tribe then residing within the limits of any of the states or territories." And by the third section it was "lawful for the president solemnly to assure the tribe or nation with which the exchange should be made, that the United States would for- ever secure and guarantee to them and their heirs and successors the country so ex- changed with them; and if they preferred it, the United States would cause a patent to be executed to them for the same."
The secretary of war, in his report of November, 1832, reviewing Indian affairs, analyzes the provisions of the act of May 28, 1830. That act created a barrier, he states, beyond which the dispersed remnants of our various Indian tribes may be col- lected and preserved. It is a solemn na- tional declaration, containing pledges, which neither the government nor the country will suffer to be violated. It secures to the Indians forever the undisputed possession
. McCoy, "Baptist Indian Missions, " p. 400.
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and control of the region allotted to them. No similar attempt has ever been hereto- fore made, and therefore no unfavorable deductions can be drawn from the failure of preceding efforts. No organized gov- ernment exists, or can exist, to assert juris- diction over these tribes, and treaties of cession are incompatible with the whole basis of the plan of settlement.
The missionary, McCoy, was among those who upheld the policy of removal, and from motives of sincere desire for the permanent welfare of the Indians. In 1832 he pub- lished an address, in which is stated in apt terms the strongest argument from a politi- cal standpoint for the removal: "All In- dian tribes which now reside or ever have resided east of the Mississippi, are, or have been, within the claims of some state or territory of the United States. Here [In- dian Territory] no such claim exists. Hith- erto the several tribes have not been united to one another, nor to the United States. Here they are to be united in one com- mon bond of civil community, and con- stituted an integral part of the United States. Consequently, in the absence of all claims, excepting those of the United States, their rights to the soil can be made as secure as are those of other citizens within the United States and territories; for they may hold their lands by the same tenure. . . United States' troops may be necessary to prevent impositions upon them by lawless persons from among ourselves, and to de- fend our frontiers against occasional in- juries by war parties from remote tribes ; but not to preserve peace among those who are, or shall be located within the terri- tory. Here it will be their interest to be at peace among themselves. United in one community, war among themselves would be as unnatural as war between so many counties of one of our states. Here arrest
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and punishment for violence to each other's persons, or depredations upon their prop- erty, can be exercised with the same salu- tary effects as in our states and territories."
Concerning the progress in removing the tribes beyond the Mississippi, the report of the Indian Bureau of November, 1831, stated that the Indians of the Choctaw tribe were already in motion, and it was esti- mated that about 5,000 would emigrate be- fore winter. "Sanguine expectations may be indulged that the whole nation will be moved within the time (three years) pre- scribed by the treaty.
"The Chickasaw Indians," continues this report, "who are disposed to follow their friends and neighbors, the Choctaws, and to reside near them have not yet been pro- vided with suitable lands. For the purpose of procuring such for their accommodation it became necessary to effect an arrange- ment with the Choctaws for a cession of a portion of their country in the west."
Regarding the Cherokees, the report states the continued refusal of the chiefs to accept the propositions of the govern- ment. But recently the department had at- tempted to revive emigration under the pro- visions of the treaty of 1828. The Creek Indians were in the same predicament, and showed no inclination to relieve themselves from the difficulties of residence among the whites by accepting the offers of the gov- ernment.
By November, 1832, the office of Indian affairs had only little progress to report in the removal of the southern tribes. About 630 Cherokees had gone to their allotted lands in the Indian country during the summer, but the people as a whole were held back by the influence of the chiefs, though it was claimed that a change of sentiment was going on, more favorable to the government's policy. Among the
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other tribes no definite movements to the west were reported, the matter being still in a state of negotiation with the Creeks, Seminoles and Chickasaws.
The secretary of war reported in Decem- ber, 1833: "From the reports which have been made to the department it appears that about 15,000 individuals of this [the Choctaw] tribe have been removed."
Under date of November 12, 1835, the commissary general of subsistence, in his capacity as superintendent of Indian emi- gration, said: "The efforts to effect Indian emigration have, during the past year, met with no very encouraging success; yet they have been most strenuous. No proper ex- pedient has been left untried to accelerate the departure for their destined homes of the tribes east of the Mississippi." Else- where he states: "No removal of the Flor- ida Indians has been effected, whilst the Creeks have funished but a very insig- nificant body of emigrants. Only a few families of the Cherokees have gone west; and of the other tribes with whom there are treaty stipulations for emigration, none have yet redeemed the pledge, freely given, to exchange their eastern for a trans-Missis- sippi residence."
One of the principal obstructing causes assigned for the delay in the removal was the influence of the Indian traders, who exercised a great power over the Indians, who were usually in debt to these traders. The annuities were often paid almost directly from the government agents to the traders.
The report of the office of Indian affairs for 1835 summarizes the status of Indian emigration. Since September 30, 1834, the number of Indians who had emigrated to their allotted lands in the Indian coun- try were the following: Quapaws, 176; Creeks, 630; Seminole and other Florida
Indians, 265; Cherokees, 48. Of the Choc- taws, only 3,500 remained east of the Mis- sissippi. Only a small proportion of the Creeks were as yet in their new homes, the total being given as 3,089, while 22,000 of them were still east of the Mississippi. The western band of the Cherokees by this time numbered 6,000, while ten thousand clung tenaciously to their old homes under the leadership of such men as John Ross. Only 265 of the Seminoles had reached their new homes, those in Florida being 3,500.
The following table from the report of the Indian commissioner in 1836 affords a definite view of the movement of the In- dians up to that time.
No. of the tribe or-
No. removed prior
since
No. removed
last report.
No. emigrant Inds.
sissippi.
hereafter.
Choctaws
18,500|15,000|
15,000
8,500
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