JOSEPH STANLEY CLARK
The boundaries of Louisiana were indefinite at the time of the Purchase,1 and its limits were not definitely decided until the Treaty with Spain was made in 1819. Legislation was immediately passed in Congress for the temporary government of the territory.2 The district on the west bank of the Mississippi, lying south of latitude thirty-three, or what is now the State of Louisiana, was called the Territory of Orleans; and the remaining portion, comprising a vast and unknown extent of country between the Mississippi and the Pacific Ocean was at the same time constituted the District of Louisiana and placed under the government of Indiana Territory.3
The next year, congress passed an act which provided that this vast district should henceforth be known and designated by the name and title of the Territory of Louisiana,"4 and it was so designated until it was organized as the Territory of Missouri5 in 1812, and was known as Missouri Territory until March 1819, when the southern portion was cut off and from it was created the Territory of Arkansas.6 Arkansas Territory extended from the Mississippi river westward to the Spanish possessions and was about
1Jefferson, Thomas, Limits and Bounds of Louisiana, 37-40 Cf. Annals, 8th Congress 1st Session, Appendix.
28th Congress, 1st Session, "An Act for Erecting Louisiana into Two Territories and Providing for Temporary Government Thereof," March 26, 1804. 12th section of Act provided that "the executive power now vested in the governor of Indian Territory, is to extend to and be exercised in Louisiana." See also Annals, 8th Congress, 2nd Session, Appendix, 1608-20, "Remonstrance of the People of Louisiana."
3Foreman, Grant, Pioneer Days in the Early Southwest. 23. Cf. Benton, Thomas H., "Louisiana Territory", Abridgment of the Debates of Congress from 1789-1856, 111, 144-149; 157-158.
4Annals, 8th Congress, 2nd Session, "An Act Providing for the Government of the District of Louisiana", approved March 3, 1805. 1684-1686.
615th Congress, 2nd Session, II, 2502-2505. The first section of the act creating the territory of Arkansas read as follows: That from and after the fourth day of July next, all that part of the territory of Missouri which lies south of a line beginning on the Mississippi river at 36 degrees north Latitude, running thence west to the river St. Francis, thence up same to 36 degrees 30 minutes north Latitude, and then west to the West boundary line shall for the purpose of temporary government constitute a separate territory and be called Arkansas Territory.
six hundred miles long, including approximately the present area of Arkansas, with that part of Oklahoma east of the hundredth meridian.7
One reason given by Jefferson for the purchase of Louisiana was that it would provide a home for Indians where they should be safe from the encroaching whites. Indians occupying a region were not regarded as having sovereign rights nor titles to the land; they were viewed as having occupancy rights only. Titles secured from them were not respected by any branch of the government, yet the Indians were treated with consideration. The government from the beginning, followed the rule of never bestowing titles to lands which were still in the possession of the natives; it would not survey nor open up for sale any land until the Indian occupancy rights had first been extinguished.8
Until the act of March 3, 1871, Indian titles to lands were extinguished only under the treaty-making clause of the Constitution, the Indians being treated as independent nations.
The first cession of land included in the present state of Oklahoma was made by the Quapaws, nominal owners, to the United States at St. Louis, Aug. 24, 1818. They ceded the following:9
"Beginning at the mouth of the Arkansas river; thence extending up the Arkansas to the Canadian fork and up, the Canadian fork to its source; thence south to Big Red river and down the middle of that river to the Big Raft, thence a direct line so as to strike the Mississippi river thirty leagues in a straight line below the mouth of the Arkansas, together with all their claims to land East of the Mississippi and North of the Arkansas."
In ceding land to the source of the Canadian, the Quapaws were surrendering land beyond the bounds of the limits of the United States in Spanish territory. The treaty also presumed that the Red river extended as far west as the Canadian, and
918th Annual Report Bureau of Ethnology, Royce, Chas. E., Schedule of Indian Land Cessions, 688. Also 15th Cong., 2nd Session No. 155, "Treaty with the Quapaws," Art. 2. For this vast domain, the United States gave the Quapaws $4,000 in goods and an annuity of $100 for the tribe.
the commissioners on the part of the United States, William Clark and Auguste Choteau were unaware of that error.10
The next cession of land in present-day Oklahoma was made by the Great and Little Osages at St. Louis, Sept. 25, 1818. This treaty-cession was made because by a former treaty, made in 1808, the Osages had promised to pay for all goods that members of the tribe might steal from the whites, and to apprehend and deliver to the authorities of the United States for punishment all their people guilty of crimes against the whites. Because of the inability of the Osages to meet the accumulation demands, they agreed to cede the Land included within the following bounds:11
"beginning at the Arkansas river, where the present Osage boundary line strikes the river, at Frog Bayou; thence, up the Arkansas and Verdigris, to the falls of the Verdigris boundary line, at a point twenty leagues north from the Arkansas river, and with that line, to the place of beginning."
The final cession of land made by the Osages at St. Louis on June 2, 1825 provided for their relinquishing all claims to land north and west of the Red river and south of the Kansas river, so the United States at last gained title to the remaining land included in the present state of Oklahoma.12
The United States government decided to use this great reserve as a home for Indians who were having trouble with the whites in the eastern part of the country. The first cession of lands by the United States now partly included in Southern Oklahoma, was made to the Choctaws, under the terms of a treaty concluded near Doak's Stand on Oct. 28, 1820, whereby that part of the tribe that lived by hunting, in exchange for certain lands in Mississippi was given a tract of land bounded as follows:13
1219th Cong., 1st Sess. No. 224. For this tract, the United States was to pay the Osages $7000 annually for 20 years and furnish them with cattle, hogs, farming implements and merchandise. See Art. 3, 4 and 12 of Treaty.
13Wright, Muriel and Hudson, Peter, "Outline of the Choctaw and Chickasaw Nations," Chronicles of Oklahoma VII, 388-413.
"Beginning on the Arkansas river, where the lower boundary of the Cherokee nation strikes the same, thence up the Arkansas, to the Canadian fork, and up the same to its source; thence due south, to the Red river, thence down the Red river, three miles below the mouth of Little river, which empties itself into Red river, on the north side; thence a direct line to the beginning,"14
Again, the same mistake was made by the United States commissioners, Andrew Jackson and Thomas Hinds, that had been made in accepting the Quapaw cession of 1818; viz. they attempted to give away land that belonged to Spain.15
The cession of this large tract immediately involved the territorial officials of Arkansas in a dispute, with the officials of the United States government in regard to the eastern boundary of the Choctaw cession. After the conclusion of the treaty, John C. Calhoun, Secretary-of-War, had learned that the boundary line, from Red river to the Arkansas, would materially affect a large number of the white inhabitants of Arkansas Territory and he proposed that as soon as the boundary line was run to try to induce the Indians to alter the line accordingly, making to them a suitable compensation for the portion of territory they would give up by the alteration.16
Before this, the war department, had on December 15, 1818 issued an order fixing a line from the source of the Poteau to the source of the Kiamichi as the limit of western white settle-
15Cushman, H. B. in A History of the Choctaw, Chickasaw, and Natchez Indians, relates the following:
During the negotiations Pashimmalhtaha, as one of the delegates representing the Choctaws, said that a part of the country being offered his people was in Mexican territory and that a line running due south from the source of the Canadian would never touch any portion of the Red river. He had accompanied hunting parties to that region and knew it well. Gen. Jackson then produced a map which purported to show the country being assigned to the Choctaws. Looking at it carefully, Pashimmalhtaha is recorded to have said, "The paper is not true." He then stooped down and drew an outline of the Canadian and upper branches of the Red river on the ground with the handle of his pipetomahawk, remarking, "There is the north, here is the south; and you see, the line between the two points does not touch any portion of Red river." (124-125)
16Amer. State Papers, Indian Affairs, II, op. cit., 394-5. Letter of John C. Calhoun to Edmund Folsum, passim May 27, 1821.
ment.17 Major Bradford stationed at Fort Smith set out on the morning of May 16, 1819 to execute the order of "removing all the resident whites out of the territory of the Osages; the Kiamesha river being now chosen as the line of demarkation."18 He was accompanied by Professor Nuttall and half a dozen solddiers. They found the ridges "nearly the height of the Allegheny in Pennsylvania, very rocky, and thinly scattered with pines and oaks; the rocks sandstone, being destitute of organic remains.19 The soldiers found about two hundred families on west side of the line; most of the families had growing crops. The order of removal was read to them but those who had growing crops were allowed until October to remove.20 Captain Combs, commanding at Natchitoches, who had received a similar order, executed it in the district near the Red river, in some instances burning houses and destroying crops.
Henry D. Downs, of Mississippi, made the survey of the eastern boundaries of the Choctaw tract. He began the survey on Sunday, August 19, 1821. Starting at the point three miles below Little river, where he marked a dogwood tree on the banks of the Red river, cutting U. S. in the southeast side and C. N. in the northwest side. From there, the line was run each day north 20 degrees 15 minutes east, until on Sunday, September 23, at 115 miles, 10 chains and fifty links, he reached the south bank of the Arkansas river, where a post was set up as an official marker.21
In his instructions, written by the Secretary-of-War, John C. Calhoun, Mr. Downs was directed to ascertain the number of whites within the Choctaw boundary. He found that settlements had been made along the Arkansas river as far as the mouth of the Canadian fork and extended along the Red river as far west as the Kiamichi, being more widely spread than along the Arkansas. It was his belief that a direct line from the
19Ibid., 209, Entry of May 18, 1819, "The ridge between the Kiamichi and the Poteau is now called Sans Bois mountains, meaning woodless."
mouth of the Poteau to the mouth of the Kiamichi would not relieve the white settlers, and suggested that such a line would be drawn from the junction of the Canadian with the Arkansas to the mouth of Jack's fork of the Kiamichi, then down that stream to the Red river.22 This retrocession would have included approximately 9,000,000 acres of the Choctaw grant, having some 375 white families as inhabitants.23
The white settlers affected by the boundary proposals were anxious for a settlement of the problem that would be to their interest, and sought Congressional action to that effect. Nothing was done until March 3, 1823 when Congress, in appropriating for the military service provided that the unexpended balance of the appropriation for carrying into effect the treaty of 1820 with the Choctaws might be expended in negotiation such a modification of said treaty "as to have established as the eastern boundary of the cession made by that treaty to the Choctaws, and as the western boundary of the Territory of Arkansas, a line due south from the Southwest corner of Missouri to Red river."24
The people of Arkansas Territory were very happy to learn of the proposed change in the boundary.25 But when an examination was made of the course the line would run, it was ascertained that from twelve hundred to two thousand white settlers would be west of it. Again the citizens of the territory arose in protest when it was found that the line, as established, will forever blast the hopes and just expectations of the citizens of the Territory, as it will transfer to the Choctaw Indians a large portion of the counties of Miller and Crawford, a section of the country which, by the fertility of the soil and amenity of the situation has been justly considered as one of the most choice tracts of land in our Territory—the pride, the boast of Arkansas."26
22Amer. State Papers, Indian Affairs, II, 395. "Letter of Henry D. Downs to Sec. of War," Dec. 24, 1821.
25Henry W. Conway wrote John C. Calhoun that "when this was made known to the people of Arkansas, the complaints which they had made were succeeded by a general burst of joy, and the most unqualified expressions of gratitude to their Government for its liberality and justice." A. S. P., Ind. Aff., II, 555.
26Memorial presented to Congress by the Legislature of Territory of Arkansas. Approved October 18, 1823, A. S. P. Ind Aff., II.
Senator Benton of Missouri called the attention of Congress to the necessity of making some provision to include the inhabitants west of the line under organized government and proposed a new change in the western boundary of Arkansas, but stated that the Choctaw eastern boundary should not be disturbed, leaving that subject to the operation of treaties.27 It was his belief that the two boundaries did not necessarily have to be the same.
Tuesday, May 25, 1824, on motion of Mr. Conway, representing the Territory of Arkansas, the House, in Committee of the Whole, considered the bill to fix the Western boundary of Arkansas. On this bill, an animated debate of considerable extent arose, in which Mr. Rankin, of Louisiana, opposed a further extension of the boundary, because it would violate Indian treaties and because it would give an improper size to the future state of Arkansas. He denied the right of the settlers to the land they occupied, and contended that the land ought to afford a resting place to the Indians east of the Mississippi.
Mr. Conway remonstrated with warmth against "forty thousand Choctaw Indians turned in among the settlements of Arkansas, to turn those who had subdued the wilderness, and were surrounded with improvements, the fruit of their labors, fields, mills, cotton gins, distilleries, etc."28
Mr. Clay advocated the passage of the bill, urging the policy of making Arkansas a strong frontier state. The debate was continued further by Mr. Wood, Mr. F. Johnson, and Mr. Isacks, and finally, the question being put upon its passage, it was defeated.29 The next day, a motion was made by Mr. Ross to reconsider the bill and it passed by a vote of 70 to 58.30 The Senate had previously passed upon it favorably.
This bill fixed the Western boundary of Arkansas as follows:31
"Be it enacted: That the western boundary line of the Territory of Arkansas shall begin at a point forty miles west of the southwest corner of the state of Missouri, and run south, to the right bank of the Red river, and thence, down the river, and with the Mexican boundary, to the line of the State of Louisiana, any law heretofore made, to the contrary notwithstanding."
Two thousand dollars were appropriated to defray the expense of running and marking the line.32 A short time afterward, the new boundary was surveyed by John C. Brown. The line ran a few miles east of the present city of Muskogee to the Red river, striking the left bank of the Kiamichi at its confluence with that stream.33
These changes in the Arkansas boundary were made without the consent of the Choctaws, and were a direct violation of the Treaty made at Doak's Stand. The Choctaws insisted that the recent Act of Congress was in violation of their treaty rights. They sent a delegation to Washington to protest against the unwarranted Act of Congress, extending the Arkansas boundary into their own territory without consulting their wishes.34 The delegation mentioned the fact that such an extension of Arkansas would take all their valuable land; that it would force the Choctaws to move farther west and come in contact with Indians who were their enemies, and that it would necessitate their living by hunting, although most of them were prepared to cultivate the soil and become an agricultural people.35
In reply, Secretary Calhoun stated that the President of the United States was very anxious to have the western boundary of Arkansas make the eastern boundary of the Choctaw Nation and presented as an argument that there was no probability that a state or territory would ever be created west of the Arkansas Territory, which would leave the Choctaws in quiet and undisturbed possession of the immense tract lying between the Arkansas and Red rivers, west of Arkansas Territory, but—should the line, on the contrary, be drawn anywhere to the
32Ibid. See sec. two of Act to fix western boundary line of the Territory of Arkansas. Approved May 26, 1824.
east of the western boundary of the Territory of. Arkansas, so as to include within the cession a part of that Territory, there is no likelihood that such a boundary would be permanent, as there is every reason to believe that the people of that Territory would never rest satisfied until the Indian title was extinguished to its western boundary."36
The Choctaw delegation made counter proposals and finally, on January 20, 1825, just eight months after the Congressional Act defining the western boundary of Arkansas had been passed, a treaty definitely settling the boundary was drawn up that was satisfactory to the Choctaw delegates, as well as Secretary Calhoun.
The first article of the new treaty read as follows:37
"The Choctaw nation do hereby cede to the United States all that portion of the land ceded to them by the second article of the Treaty of Doak's Stand, as aforesaid, lying east of a line beginning on the Arkansas, one hundred paces east of Fort Smith, and running thence, due south, to red river; it being understood that this line shall constitute and remain the permanent boundary between the United States and the Choctaws, and the United States agreeing to remove such citizens as may be settled on the west side to the east side of said line, and prevent future settlements from being made on the west thereof,"
This treaty-line was a compromise. During the negotiations, Henry W. Conway, delegate to Congress from the Territory of Arkansas wrote Mr. Calhoun saying that the proposed line would not be acceptable to Arkansas and that the general assembly had already protested against a line a short distance west of the proposed line, mentioning that such a line would
377 Statut., 234; Sen. Docs., Vol XXXV., 57 Cong., 1st Sess., Vol. II., 149. By this agreement, the Choctaws lost the land lying between the proposed boundary and the line surveyed by Mr. Downs in 1821, amounting to 4,030,912 acres. In consideration of this cession, the United States agreed to pay the Choctaws $6000 annually forever. See, Art. II of "Treaty of Washington, Jan. 20, 1825.
cut off a large population and injure the Territory. After the treaty had been decided upon, Mr. Calhoun replied to Mr. Conway that the terms agreed upon were the best that could be made; that it secured for Arkansas quite a large area for settlement; that if not accepted, the old Choctaw line of 1820 stood and the government would be compelled to enforce a hitherto unenforced provision, viz. to remove all white settlers found west of the line.38
President Adams appointed James S. Conway to make the survey, which should be the permanent boundary-line between the Choctaw nation and the Territory of Arkansas. Mr. Conway, with his company of surveyors was accompanied by the Choctaw commissioners, Mr. Wall and Major Pitchlynn.39 He did not know the character of the land but had been informed by people who had been in the vicinity of hunting excursions that the greater part would be mountainous and rough—that the "rocky mountains" would not greatly surpass in size and height the mountains on the headstreams of the "Poto, Petit John, Ouschita, Little river and the Kiamecha."40
The survey of the line began at Fort Smith, November 2nd, 1825.41 The entry for that day in Mr. Conway's field notes is as follows:
"This day started the line forming the Eastern boundary of the Choctaw lands in the Territory of Arkansas. Beginning at the most easterly part of Fort Smith, thence east one hundred paces to a stake, from which a Red Oak 28″ in diameter bears N. 77 E. 157 links, thence north 7 chains, 16 links to a Black Walnut 10 ins. in diameter; then to the bank of the Arkansas river
39Letter written Nov. 2, 1825, by James S. Conway to Gen. Geo. Izard, Gov. of Ark. Ter. (A photostatic copy was loaned through the courtesy of Mr. Grant Foreman.)
41Field notes of the Eastern Boundary of the Choctaw lands in the Territory of Arkansas, surveyed by J. S. Conway, 1825. The note book in which these field notes were kept is in the office of the Commissioner of State Lands at Little Rock, Arkansas. The author is indebted to Miss Belva Martin, Commissioner, and her office force for the courtesy of obtaining these while there March 3rd and 4th, 1932. A copy was made for the Phillips's Collection of the University of Oklahoma.
which runs a few degrees east of north, where set a stake from which a cottonwood tree marked thus (C. T. L.) 12 ins. in dig. bears S. 50 W. 23 links and another Cottonwood tree marked thus (U. S. L.) 16 ins. in diameter S. 7 E. 62 links. From thence returned to the corner established one hundred paces East of Fort Smith, thence, due south. At 25 chains 85 links was a hackberry 10 ins. in diameter. At 52 chains, 50 links set a stake corner for miles 1 and 2 from which a Black Walnut marked thus (U. S. L.) 12 ins. in diameter bears S. 32 E. 12 links and a Red Oak 24 ins. in diameter marked thus (LM. C. T. L.) bears N. 3. L. W. 47 links. The land of this mile first 20 chains rich river bottom, balance (sic) rolling; upland soil, good Timber Oak, Hickory, Elm etc.42
Nov. 3, 1825. This day arranged the camp equipage and provisions for packing and removing camp 1 mile.
It took Mr. Conway's party until Dec. 7 to complete the survey. In the field-notes were recorded, not only the technical phases of the survey, but interesting incidents as the following:
Nov. 9th 1825. Spent this day in hunting pack horses that had run away.
Nov. 13th 1825. This day, it required all hands to remove camp across the mountain.
Nov. 20th, 1825. This day came to a caney creek bottom and lay by to recruit the Pack horses, also for the purpose of drying some buffalo meat which the hunters killed yesterday.
Nov. 21st, 1825. This day it required all hands to move across the mountain.
Nov. 23rd. 1825. This day lay by for the purpose of hunting one of the hands who got lost yesterday in huntcane or grass for the pack horses—hand came in in the the afternoon.
Dec. 3rd. 1825. This day lay by for the pack horses to recruit having crossed Little River where there is good cane.
Mr. Conway found most of the "land rolling, soil thin" or the land "mountainous, brushy, stony and poor" with the timber "oak, pine, and often briary." He thought that very little of the land would be fit for cultivation. He recorded the crossing of an Old Indian Trace and a wagon trail. On Dec. 7th, 1825, the party reached the north bank of the Red river, Mr. Conway computed the distance from the initial point to be 119 miles, 40 chains, 87 links.
The Choctaw commissioners, Mr. Wall and Major Pitchlynn agreed to let the white settlers west of the line remain until satisfactory arrangements could be made for their removal. Governor Izard thought it necessary to establish a detachment of soldiers near Little Rock to expedite the removal of the white, as well as to keep down any excitement that might arise among the citizens who were ordered to remove.43 Finally, Congress made arrangements for their removal by arranging for the settlers to remove to the Lovely Purchase.44
The Choctaws were reassured that the eastern boundary mentioned in the Treaty of Washington, 1825, should be permanent by the following clause appearing in the treaty made between the Cherokees and the United States on May 6, 1828.45
"The western boundary of Arkansas shall be and the same is, hereby defined, viz: A line shall be run commencing on Red River, at a point where the eastern Choctaw line strikes said river, and run due north with said line to the river Arkansas, thence in a direct line to the Southwest corner of Missouri."
The Choctaw boundary was again reaffirmed in the second article of the Treaty of Dancing Rabbit Creek, as follows:46
44Infra., A. S. P. Ind. Aff. II, 702-704. Also Abridgment of Debates of Congress, IX, 246-248. "Encroachments on Choctaw Lands."
46Kappler, Laws and Treaties, Il, 310-318. "Treaty with Choctaws in 1830." In fulfilling the last provision of the article mentioned a patent was issued to the Choctaw nation on March 23, 1824, signed by President Tyler, Daniel Webster, Sec.-of-State, and John Spencer, Sec.-of-War. This patent is on exhibit in the museum of the Oklahoma Historical Society.
"The United States under a grant specially to be made by the President of the U. S. shall cause to be conveyed to the Choctaw nation a tract of country west of the Mississippi river, in fee simple to them and their descendants, to inure to them while they shall exist as a nation and live on it, beginning near Fort Smith Where the Arkansas boundary crosses the Arkansas river, running thence to the source of the Canadian fork, if in the limits of the United States, or those limits; thence due south to Red River, and down Red River to the west boundary of the Territory of Arkansas; thence north along that line to the beginning. The boundary of the same to be agreeable to the Treaty made and concluded at Washington in the year 1825. The grant to be executed as soon as the present Treaty shall be ratified."
Rumors that the boundary line had been improperly run were brought by the Choctaws, and in 1855 when a new treaty was made by the United States with the Chickasaws and Choctaws, the same language was used in describing the boundary, viz., "Beginning at a point on the Arkansas River, one hundred paces east of old Fort Smith, where the western boundary-line of the State of Arkansas crosses the said river, and running thence due south to Red River . . . . . "47 The Treaty also provided that the United States should, as soon as practicable, cause the boundary line to be run and permanently marked.48
Congress in 1856 made an appropriation to carry out the provisions of the treaty. Under this act the government the following year began the survey, but stopped the work when some eight miles of the line had been run and directed the surveyors to do other work.49 The initial point was easily determined and agreed upon; but it was discovered that the old line (Conway Survey) between Arkansas and the Choctaws, intended to run due south, had not done so, but had been run
47Kappler, Indian Laws and Treaties, II, 531-536; "Treaty with the Choctaws and Chickasaws," June 22, 1855.
considerably west of south.50 It was thereupon ordered that, instead of the line running due south according to the various treaties, the old erroneous line should be retraced.
Hon. J. Thompson, Secretary of the Interior, on October 3, 1857 had written Gov. Elias N. Conway of Arkansas that he was about to cause the boundaries of the Choctaw country to be run and marked in a substantial manner and inasmuch as the Eastern boundary of the Indian country bore an intimate relation to the Western boundary of Arkansas, he deemed it proper to acquaint the Governor of the intention.51
Governor Conway immediately busied himself in the interests of his state. He made plans to see that the new survey merely formed a retracement of the Conway Survey of 1825; and was successful in getting the Secretary of the Interior to issue instructions to that effect. Governor Tandy Walker of the Choctaw Nation failed to appoint Commissioners to act in conjunction with the surveyors, because of the new instructions. Mr. Q. D. Williams, Boundary Commissioner for Arkansas refused to act and resigned, giving the following reasons:52
"It is hardly necessary that I should remain here mostly to certify that an old line of blazed trees has been followed. Many a better woodsman than myself can be found, therefore I am out of position. Moreover and especially I wish to be relieved because as I have never regarded myself as a mere blind agent to carry out instructions, nor as deprived by your appointment of my individual right to judge, from opinions and to act upon them. So . . . . I can not conscientously take part in any action based upon the interpretation given by the Sec'y of the Interior to the Choctaw and Chickasaw Treaty of 1855. I cannot destroy my personal and professional reputation by subscribing to surveys which I have ascertained to be inaccurate."
50Report of Indian Affairs, 1858, No. 39, 126-134. "Elias Rector to Chas. E. Mix," Com. of Ind. Aff., Oct. 26, 1858.
51Arkansas Letters. These letters are on file in the office of the Land Commissioner at Little Rock. A copy has been made for the Phillip's Collection. "Letter" of Oct. 3, 1857 and "letter" of Nov. 7, 1857.
A. H. Jones and H. M. C. Brown, U. S. Surveyors, were contracted by Charles E. Mix, Acting Commissioner of Indian Affairs, to make the retracement.53 David F. Shall succeeded Q. D. Williams as Boundary Commissioner.54
The Surveyors found satisfactory evidence every mile to prove that they were on the old line. In establishing each mile, great care was taken to erect mounds in the most durable manner, forty-four stone monuments being erected on the one hundred and twenty mile-line, while for every mile, earth mounds were built of "tenacious soil" not likely to be destroyed and "looked as if they would endure for ages."55
The principal chief and general council of the Choctaw nation were dissatisfied with the retracement for they felt that their nation was losing thousands of acres of land, as well as valuable salt springs that rightfully belonged to their people.56 Pitchlynn charged that the line had purposefully been run with offsets, to the advantage of Arkansas. After the Civil War, the Choctaws and Chickasaws tried in vain to have the true line run and gain possession of the disputed territory.57 Pitchlynn became discouraged and wrote that "when an Indian Nation or Tribe comes before Congress demanding Justice—it most humbly petition and run and watch and wait, year after year, until hope deferred makes the heart sick."58 In another letter he said, "These things are not fit to be suffered by a Great Republic that claims to
53Ark. Letters Op. cit. "Field Notes of Retracement". These notes from the 35th mile south to Red river, as copied by David F. Shall, Boundary Com. for Arkansas, are in the Land Office at Little Rock, Arkansas.
54Shall was commissioned Feb. 20, 1858, but was unable to join the JonesBrown survey until it had reached the 62nd mile owing "in the first place to sickness, in the second to Mr. Williams' breaking of camp, and in the third to high water." "Letter of Apr. 3, 1858, to Gov. Conway."
55Ark. Letters. "Gen'l Explanations of Field-notes," statement made near Red river, April 12, 1858.
The initial point established for the Jones-Brown survey is a concrete cube projecting some two feet above the ground, near old Fort Smith. Inscribed on the north face is "INITIAL POINT"; on the south face, the date "1858"; on the west "Choctaw;" and on the east face "Arkansas."
56Rector, Elias, op. cit. also Letter of P. P. Pitchlynn to J. D. Cox, Sec. of Int., Aug. 29, 1870. Pitchlynn represented the Choctaw nation at Washington, D. C. Stories are current that the original surveyors accommodated some squatters in Choctaw nation by tracing the line around their land so it would be included in Arkansas.
57Report of P. P. Pitchlynn. Choctaw Delegate, to His Excellency, the Principal Chief and Gen'l. Council of the Choctaw Nation, 32.
govern more wisely and justly than Kings do." He continued:59
. . .I am an Indian and only express what an Indian feels. Few Kings have denied all justice and remedy and rights in their courts to even the lowest and humblest of their subjects. Even the Saxon Swine-herd was not entirely without the protection of law and in Rome under Domitan the slave could be heard to revendicate the peculium. Yet the ancestors of the Romans had not solemnly stipulated for themselves and their descendants that they would not sell, would not deny, would not delay Justice to anyone.
. . . we can only be suppliants and beggars. there never was in all the world a people more utterly without any lawful remedy for wrong or means of asserting a right than the Choctaws and Chickasaws are; and yet they are neither slaves nor a, conquered people but the allies and wards and under the protection of the United States, which was made to "establish Justice."
The Indians were finally able to gain the attention of Congress and on March 3, 1875, legislation was passed that provided for a re-survey of the entire line between the Cherokee and Choctaw nations and Arkansas. This survey was not for the purpose of establishing a new line, but to ascertain how much land the Indians were deprived of wrongfully by the old surveys.60
On March 12, 1877, Henry E. McKee, U. S. surveyor, contracted to run the old boundary line between the Choctaw nation and Arkansas, as well as the actual treaty line. He began the re-survey at Fort Smith, April 16, 1877 and completed it May 24, 1877.61 The following entry in McKee's field notes shows the type of work involved in the retracement:
59These reports of Pitchlynn are in the attic of the Federal Building at Muskogee, Oklahoma, and were obtained through the courtesy of Mr. Hudson and Mrs. Watts.
60The bill originally introduced into the Senate provided that the Indian Nations should be reimbursed at the rate of $1.25 per acre and interest should be allowed at 5% since 1824.
61A photostatic copy of these two surveys is in the vault of the Supt., Five Civilized Tribes, Federal Bldg., Muskogee, Oklahoma.
McQee found that the Brown and Jones line was easily followed; their blazes were yet very plain; and occasionally there was found an old tree blazed differently from the usual man-
ner supposedly made by the Conway surveying party of 1825. He found that many of the fields and other improvements mentioned by Brown and Jones, had since been abandoned, while some new ones had been made. The mountain regions abounded in valuable pine timber, but it was inaccessible to market. The inhabitants of the country claimed for it great mineral wealth but nothing of that character worthy of mention was found by the surveyors.62
The retracement was completed May 24, 1877 and the surveying party returned to Fort Smith. McKee commenced the survey of the Choctaw treaty line (the true boundary) on June 2, and completed it July 9, 1877.63 It was found that the two lines began to diverge from the initial point at Fort Smith, the boundary mark on Red river being 4 miles 16 chains west of a line due south from old Fort Smith, showing that the Choctaws had been justified in their charges. Valuable salt springs were located between the two surveys and laid totalling 136,204.02 acres.64 The attention of Congress was called to this fact and largely through the efforts of H. E. McKee of Washington and J. B. Luce of Fort Smith, the Choctaws were paid for the land between the treaty-line and the false-surveys.65
The line of the false survey remains the boundary line between Arkansas and Oklahoma,66 with the exception of more recent changes made in the immediate vicinity of Fort Smith. An Act of Congress approved February 10, 1905, changed the west-
62Fagan Bourland, Mayor of Fort Smith since 1926, helped on this survey of 1877. His father had contracted to put the iron markers in place and Fagan hauled the posts (weighing about 125 lbs. each) as near as possible to their destination in a wagon, then would unhitch a mule, tie the post to it by a chain, and drag the marker to its final resting place.—Told to the author by Mr. Bourland at Fort Smith, March 6, 1932.
64Reynolds, (Ark. Hist. Pub. II, 228) says the Indians had lost 137,400.12 acres of land; but Mr. Hudson and I found records in the attic of the Federal Building, Muskogee, Okla., showing that the Choctaws received $68,102.00 for the land at 50c per acre. Of this amount, attorneys took 30% and 20% went to the Choctaw delegation headed by Peter Pitchlynn. Cf. Bill No. 23 of Gen'l Council of Choctaw Nation, 1903. In Court of Claims, No. 30252; in Court of Claims No. 30552.
65Pitchlynn usually stayed with McKee when in Washington and had gained his favor. Also see Sen. Reports, 45 Cong. 3rd Sess., Vol. 2, report No. 714.
ern boundary of Arkansas near Fort Smith as to include in that a portion of the Indian Territory (about one-fifth of a square mile), the boundaries of which were described as follows:67
"Beginning at a point on the south bank of the Arkansas river one hundred paces east of old Fort Smith, where the western boundary line of the state of Arkansas crosses the said river, and running southwesterly along the south bank of the Arkansas river to the mouth of the Poteau River; thence at right angles with the Poteau river to the center of the current of said river; thence southerly up the middle of the current of the Poteau River (except where the Arkansas State line intersects the Poteau River) to a point in the middle of the current of the Poteau River opposite the mouth of Mill Creek, where it is intersected by the current of Mill Creek to the Arkansas State Line; thence northerly along the Arkansas State line to the point of beginning."68
The western boundary line of Sebastian County, Arkansas was extended to include this tract,69 and on May 27, 1909 the County Court of Sebastian County made an order authorizing the annexation of the territory to the city of Fort Smith. The City Council of Fort Smith accepted the tract Dec. 6, 1909, so it is now a part of that city.70 This marked the final disposal of land that had entered into the difficulties beween the Choctaw Nation and Arkansas.
68The land included, containing 134 lots in 13 blocks, was surveyed, and appraised at $21,276.00 and sold (for the benefit of the Choctaw and Chickasaw Nations for $23,188.25. "Letter of March 10, 1923," from A. G. McMillan, Ass't. Supt. Five Civilized Tribes.
70Ord. No. 894. "An ordinance accepting and annexing certain contiguous Territory in Sebastian County to city of Fort Smith," Dec. 6, 1909.
The northern part of the tract is called "Coke's Hill"; the middle part "Red Row" and the southern part "Arkoma". "Coke's Hill" is a shantytown built on the site of the old Fort. It is an eyesore, and on Sept. 14, 1929 the City Council of Fort Smith appropriated $10,000 to buy the title to it, but was unable to extinguish all the old titles, so it remains a ramshackle memory to an historic old landmark; an erstwhile refuge for criminals of Fort Smith, who until 1909, had only to cross the tracks of the Katy railroad to be safe from the city officials. Mr. H. S. Peck, City Engineer, was kind enough to spend an entire day in gathering data with me for this paper. It was through him that the City Clerk gave me copies of various city ordinances pertaining to Coke's Hill, as well as showed me the minutes of the City Council of Fort Smith.
After the United States Government had gained title to Lovely's Purchase and the Great and Little Osages had, by the Treaty of 1825, surrendered their claim to the land lying west of the State of Missouri and the Territory of Arkansas, and north and west of the Red River, plans were furthered to remove the Cherokees West into that region.71 In the Spring of 1828, a delegation of the Western Cherokees arrived in Washington clothed with authority to present to the President their numerous grievances, and to adjust all matters in dispute for their people. The burden of their complaints had relation to the delays that had occurred in fixing their boundaries to the failure to secure for them their "western outlet"; to the adjustment of the hostilities that continued to exist between themselves and the Osages; and to the irregularity in the receipts of their annuities,72 as well as to the encroachment of white settlers.
The delegation had not been given the authority to negotiate for any exchange or cession of territory.73 Notwithstanding that fact, a communication was addressed to them from the War Department desiring to be advised if they had any objection to opening negotiations upon a basis of an exchange of land for territory west of the western boundary of Arkansas provided that boundary should be removed a distance of forty miles to the east, so as to run from Fort Smith to the southwest corner of the state of Missouri, and also that the Creeks should be removed from their location above the Falls of the Verdigris River to territory within the forks of the Canadian and Arkansas.74 The Cherokee delegation at first refused the offer, but finally agreed and signed the Treaty of 1828. Governor Izard of Arkansas Territory thought that an injustice was being done the whites who had removed from the Choctaw country to the Lovely Purchase and charged that the chiefs who negotiated the treaty were persuaded to do so through "pecuniary advantages resulting to themselves individually."75
72Royce, Charles C., "The Cherokee Nation of Indians," Fifth Annual Report, Bureau of Ethnology, 1883-1884; pp. 129-371.
73The Cherokees had passed a law years before with a death penalty against any of their tribe that should dispose of land to the whites.
By the seventh article of the treaty, the Cherokees agreed to surrender the lands in Arkansas, and leave the same within fourteen months, which were secured to them by the Treaty of January 8, 1817 and the Convention of February 27th 1819.76
In article one, the western boundary of Arkansas was defined as follows:77
"A line shall be run, commencing on Red river, at the point where the Eastern Choctaw line strikes said River, and run due North with said line to the River Arkansas, thence in a direct line to the South west corner of Missouri."
The grant extended up the western boundary of Missouri to the point where that boundary crossed the Neosho (generally known as the Grand River) thence due west to a point from which a due south course would strike the old North West corner of Arkansas Territory, thence down it to the Arkansas and Canadian Rivers, embracing 7,000,000 acres of land.
All the parties to the treaty knew that it was wholly illegal, as the delegation had no authority whatever even to consider the subject of surrendering their land. Aware of this and familiar with the motives of some of the half-breeds who desired to promote their own interests by acquiring mines and salt springs on Lovely's Purchase, and conscious, of the probability that bribes had been paid to members of the delegation, members of the tribe at home became deeply indignant at the thought of being compelled to abandon their little farms and remove to a new country. Poles were erected in front of the homes of James Rogers, the interpreter, and Thomas Naw, one of the delegates, as a threat that they would be hanged when they came home.78 A special council was called to try the delegation for betraying the tribe.79
The whites residing in Lovely's Purchase were equally as indignant over the prospect of being ejected to make way for
76Kappler, op. cit., 206-209, art. 7., "Treaty with Western Cherokees," between James Barbour, Sec'y-of-War, and Cherokee Chiefs, May 7, 1828.
79Foreman, Indian and Pioneers, 261-262, taken from the files of Cherokee Phoenix, October 29, 1828.
the Indians. But Congress provided preemption rights elsewhere for those forced to remove, and Governor Izard issued a proclamation on September 27, 1828, notifying them to remove east of the new line within ninety days or lose the rights offered them.80
The Legislative Council of Arkansas Territory was called in special session in October, 1828 to adopt new lines for county and judicial districts disrupted by the removal of the western boundary of the territory. By the Act of October 17, 1828, Miller County North of the Red River was abolished, and the remnant of that county east of the new boundary line, was added to Sevier County. Lovely County was likewise destroyed and the fragment that lay east of the new Cherokee line was incorporated in the newly created Washington County.81
The United States agreed to run the lines of the boundary of the Cherokee cession,82 and Joseph H. Brearley, in the fall of 1828, surveyed the boundary from Fort Smith to the southwest corner of Missouri.83
Much to the dismay and dissatisfaction of the Creeks, they found that the Cherokee cession overlapped the region south of the Arkansas river where they had settled under the advice of the government officials associated with them, Colonel David Brearley and Colonel Arbuckle.84 The wording of that part of the Cherokee treaty which related to the Cherokee boundary touching the western boundary of Missouri was also ambiguous, the secretary-of-war having interpreted it to mean that the Cherokee line was to continue on the line of Missouri, north of the corner of the state, until it crossed a stream of water called Grand river running into the Neosho.85
80On March 4, 1828, Congress had passed an Act that provided for a donation of two quarter sections of land to each head of a family, widow or single man over twenty-one years of age who resided west of the line at the time and who should remove east of it prior to making application for the donation at the land office.
A survey of the boundaries of the entire Cherokee nation was ordered. Isaac McCoy, Baptist missionary, was appointed on March 31, 1831 by Secretary-of-War, John H. Eaton, to survey the boundaries, because of his knowledge of the country west of Missouri and Arkansas Territory.86 Mr. McCoy arrived at Fort Gibson and found that no means for carrying out the survey had been provided, though money and men had been promised in his letter of instructions from the War Department. Yet in spite of these trying circumstances, he set out across country to the southwestern corner of Missouri, accompanied by two Cherokee representatives of their tribe, and two surveyors, Dr. Rice McCoy and Mr. John Donelson.87
Mr. Donelson surveyed the line from the southwestern corner of Missouri to Fort Smith during August, 1831, then between Sept. 19, 1831 and January 28, 1832, corrected the line and established markers upon it.88 After the survey, it was found that about 589,000 acres remained north of 36° and south of the Osage reserve, so it was suggested by Mr. McCoy that this tract be occupied by the Cherokees, and the Creeks be given title to land south of the Arkansas river. "By this arrangement," he said, "the Cherokee country would not be diminished and the lands which they would receive, it is believed, in regard to soil, water and wood, and salubrity of atmosphere, would not be inferior to that relinquished."89
On February 14, 1833, a treaty which was really a supplement to the Treaty of 1828, described the boundaries of the 7,000,000 acre tract of land west of Arkansas that had been ceded to the Cherokees and in addition guaranteed a "Perpetual outlet west as far as the sovereignty and right of soil of the United States extends."90
After the Treaty of 1817 which provided for the removal of only a part of the Cherokee nation west, Georgia made strong
87Ibid., 130. Dr. Rice McCoy was a son of Mr. Isaac McCoy. John Donelson was the nephew of Mrs. Andrew Jackson.
89Isaac McCoy to Lewis Cass, Sec'y of War, Sept. 12, 1832. From photostatic letter obtained for Phillip's Collection.
90Kappler, op. cit., "Treaty with Western Cherokees," 1833. Art. I, 283.
and violent protestations because of the large number of Indians left within her borders. She charged that the federal government failed to extinguish the Indian title to lands to Georgia as promised when the cession of 1802 was made.91
Even after the Supreme Court decision, in the Worcester vs. Georgia case, declaring Georgia laws extending jurisdiction over Indian Territory unconstitutional, that state refused to acknowledge the decree of the Federal Court. President Jackson who was in sympathy with Georgia preferred to remove the Indians rather than make Georgia submit92
On December 29, 1835, a treaty was concluded at New Echota, in the state of Georgia, by General William Carroll and John F. Schermerhorn, commissioners on the part of the United States and the chiefs, headmen and people of the Cherokee tribe of Indians, in which agreements were made to complete the removals west.93
The final treaty united the Cherokees within the bounds set forth within its provisions. The Cherokees, however, were troubled with white intruders, especially in the region of eastern Kansas, called "the Neutral Lands."94 Others trespassed across the borders of the nation proper, so the following provision was included in the Treaty of 1899:95
"It being difficult to learn the precise boundary line between the Cherokee country and the states of Arkansas, Missouri and Kansas, it is agreed that the United States shall, at its own expense, cause the same to be run as far west as the Arkansas, and marked by permanent and conspicuous monuments, by two commissioners, one of whom shall be designated by the Cherokee National Council."
On the fifth day of May, 1871, James Ashley was appointed commissioner on the part of the United States and John L. Adair commissioner on the part of the Cherokee nation, to supervise
92Laws on Indian Affairs, 1633 to 1831. Law of May 28, 1830, in sec. 3, the Indians were guaranteed forever the possession of the ceded land.
the survey. July 18, 1871, they let the contract for the survey to D. P. Mitchell, and the survey was commenced August 26, and completed on October 11 of that year.96
Mr. Mitchell began the survey at a cedar post which stood on the north bank of Cowskin or Elk river, at the southwest corner of the Seneca lands and ran the lines south 8 miles, 53 chains and 68 links, on the line separating Missouri from the Cherokee Nation. From the southwest corner of Missouri he ran a random line south 7° and 45′ east between the state of Arkansas and the Cherokee country, setting temporary mile posts every 80 chains, and at 77 miles 39 chains and 8 links, he reached a point 9 chains and 86 links west of the "Initial Point" at Fort Smith.97 He then learned, to run a true line from the "Initial Point" at Fort Smith to the southwest corner of Missouri, that he must run the line north 7° and 50′ west. Following that direction, the party began the survey of the permanent boundary line on Sept. 25, 1871. The following entry for the first milestone northwest of Fort Smith is typical of the others:98
"At 80 chains, I planted a stone 10 x 10 x 2 inches, one foot in the ground marked on the upper side with the letter "a", over which I set a coffee-bean post 5 inches square and five feet 6 inches high for a mile post; on the south side I marked "IM", for one mile, on the east side the letter "A" for Arkansas, on the west side the letter "C" for Cherokee Country.
At the four cardinal points, and about 6 feet from the post, I sunk four pits three feet square and two feet deep, and threw the earth around the post which made a mound about 8 feet at the base and about four feet high from which I marked two bearing trees Cottonwood 30 in. S. 79° 20′, E 87 links. Sycamore 8 inc. bearing S 63° 20′ west, 30 links. No other suitable trees in proper distance, Sand level, soil sandy and 2nd rate, that portion which lies between the Poteau and Arkansas rivers, overflows at ordinary high water. Timber-
97Field-notes of Temporary Survey. A copy of these notes is on file in the Phillips' Collection at the University of Oklahoma.
Cottonwood, Sycamore, Honey-Locust, Coffeebean and hackberry."
On October 9, 1871 they planted a flint stone for the 71st mile and commented as follows: "The line passes through the eastern portion of the village of Maysville, which contains 250 inhabitants, five stores, 2 blacksmith shops and 2 grog shops."99
Mr. Mitchell found that the face of the country along the entire line was "broken, mountainous, and stony," except in the bottoms. For about forty miles, nearly the whole face of the country was covered with broken flint, but there were numerous springs and many areas supporting good pine timber. The line crossed what the inhabitants said was the old line "Donelson survey) many times and a few of the settlers on either side of the old line "would lose land and fencing."100
This line was retraced in 1877 by Henry D. McKee, after he had completed the survey of the Choctaw Nation-Arkansas boundary.101 Iron markers were set at every mile. The McKee survey showed the Cherokees had lost 2439.43 acres. Congress made the Cherokees an appropriation for the loss of land caused by faulty survey of 1831-1832.102 In 1831, while Mr. Donelson was engaged in marking the Cherokee boundary from the initial point at Fort Smith to the southwestern corner of Missouri, Dr. McCoy proceeded northwardly from the corner of Missouri and marked the line between the Cherokees and that state, and established the northeast corner of the Cherokee lands "immediately after crossing the first considerable stream, north of the corner of Missouri, which runs into the Neosho." Eight miles
99The citizens of Maysville protested very bitterly over the re-survey, when they learned that those residents west of the line should remove. On the same day (Oct. 9) the party reached the South Western corner of Missouri, finding the distance from the "Initial Point" at Fort Smith to be 77 miles, 39 chains, 8 links. They ran the line up the boundary of Missouri 8 miles, 53 chains and 68 links to the South East corner of the Seneca lands, making the total distance from Fort Smith 86 miles, 12 chains and 76 links.
101"This resurvey was commenced July 12, 1877, completed August 25, 1877." —Letter to author from D. K. Parrott, acting Assistant Commissioner, May 5, 1932.
10245 Cong., 3rd Sess., Sen. Rep. No. 714.
Cf. Choctaw vs. U. S. and U. S. vs. Choctaw 119 U. S. 840-850. In the decree of Nov. 15, 1886, the Choctaws were awarded $167,896.57 for their loss of land to Arkansas; this was later reduced to $68,102.00 and of this the Chickasaws tried to get one-fourth or $17,125.50. See Bill No. 1 passed Choctaw Senate June 29, 1905; passed the Choctaw House June 30, 1905. Gov. Murray was one of the Chickasaw Commissioners who signed this bill.
and ninety-nine chains north of the corner, his party came to Elk river, a stream five chains wide, where they erected a mound and established other suitable marks to designate the same as the northeast corner of the Cherokee lands. They then proceeded on the line of Missouri twenty-two miles further, "marking every fifty mile, in order to facilitate subsequent surveys on the Indian side.103 This boundary-line was used when several different tribes were allotted tracts in present northeastern Oklahoma.104
The west boundary line of Missouri forms the last link in the eastern boundary line of Oklahoma. The boundaries of the state of Missouri that touch Oklahoma, as they exist today, were fixed by Act of Congress, March 6, 1820, as follows:105
. . . . "thence west, along the parallel of latitude thirty-six degrees and thirty minutes, to a point where the said parallel is intersected by a meridian line passing through the middle of the Kansas river, where the same empties into the Missouri river, thence from the point aforesaid north, along the said meridian line. . ."
"This meridian line passing through the middle of the Kansas river," was surveyed and established in 1823 by Joseph C. Brown and has since remained the official boundary line.106 He began his survey at the southwest corner of Missouri and set a large stone post to mark the spot. In 1845, a mound of earth having a 10 foot base and 5 feet high was placed at a point 4.83 chains further South.107 Between 1867 and 1877, the Quapaws, Medocs, Senecas, Ottawas, Eastern Shawnees, Peoria-Miamis and Wyandottes were removed to northeastern Oklahoma, but no changes were made in the boundary-lines.108 It is unlikely that any further changes will be made in the eastern boundary of Oklahoma.
106Connelley, W. E., "The East Boundary Line of Kansas," in Kansas City Journal, March 6, 1.899, reprinted in Kansas State Pub. XI, 23-28.
108Kappler, Indian Laws and Treaties, II. Cf. Lindquist, G. E. E. The Red Man in the United States, 170.
Some of the Senecas of Sandusky and Seneca-Shawnee were moved into the region 1832-1833.
Mr. C. E. Hutton has an excellent discussion of these removals in his Thesis, "The Location of Indian Tribes in Oklahoma"; written at University of Oklahoma in 1917.