Berlin B. Chapman
In prominence and importance no tract of country excels the Cherokee Outlet in the history of lands of Oklahoma Territory. A review as to how the Cherokees acquired the Outlet includes documents penned more than a hundred years ago. A Cherokee outlet to the west was a promise and policy of the government as well as a matter of land. In 1809 President Jefferson encouraged the Cherokees to settle on certain lands between White River and the Arkansas. Those who settled there desired to have a definite tract of country assigned to them, its bounds ascertained and efficient measures taken to prevent white people from mixing with them and otherwise intruding upon their lands.1
It appears that on July 9, 1816 Major William L. Lovely, agent for the Cherokees in Arkansas, addressed a letter to Clermont and all the chiefs of the Osage nation2 proposing to pay all the debts that could be properly authenticated against the Osages by the white people and Cherokees provided they would relinquish all claim to a certain tract of land. The tract, although poorly described in the letter as now available, seems to have included the country extending from the Cherokee land at the junction of the White and Arkansas Rivers, westwardly between the said rivers and to have culminated in an extreme point which reached the falls of the Verdigris.3 The proposition by Lovely was agreed to and signed July 14 by a half dozen head men and braves on the part of the Osages. The tract of land contained more than seven million acres and became known as "Lovely's Purchase." The Gov-
2A letter purported to be a true copy of the original is in H. Documents, 20 Cong. 1 sess., vi (174), no. 263, p. 38.
ernment had not authorized Lovely to enter into the agreement to purchase the lands,4 nor did it confirm the agreement.
By the fifth article of the Cherokee treaty5 of 1817 the United States bound themselves in exchange for certain Cherokee lands east of the Mississippi, to give to that part of the Cherokee nation on the Arkansas as much land on that river and White River as they had or might thereafter receive from the Cherokee nation east of the Mississippi, acre for acre, as the just proportion due that part of the nation on the Arkansas agreeably to their numbers; which should commence at a line drawn approximately from the present site of Morrillton to Batesville, and extend up and between White River and the Arkansas for complement, the banks of which rivers should be the lines. All citizens of the United States, except Mrs. Percis Lovely, widow of Major Lovely, who should be allowed to remain where she was living during her natural life, should be removed from within the bounds of the tract of land above described.
In the words of John C. Calhoun, Secretary of War, "the great object"6 which the government had in view was the moving of the Cherokee nation to the west of the Mississippi, which in its probable effects would lead ultimately to the removal of the Creeks, Choctaws, and Chickasaws to the same region. In a talk7 to a Cherokee delegation of the Arkansas about the middle of March, 1818 President Monroe said that it was better for the Cherokees to go to the Arkansas than to remain east of the Mississippi, and that it was his wish to make them prosperous and happy in their western homes. He said that during the next summer the government
4C. C. Royce, "The Cherokee Nation of Indians," Bureau of Ethnology, Annual Report, 1883-1884, pp. 245-246.
5Treaty of July 8, 1817, 7 Statutes, 156. See also the Cherokee treaty of Feb. 27, 1819, ibid., p. 195.
6Calhoun to Joseph McMinn, March 16, 1818, O. I. A., Letter Book, Series I, D, p. 125. See also George Graham to McMinn, Nov. 29, 1817, ibid., p. 101; same to same, Dec. 2, 1817, ibid., p. 103; Calhoun to McMinn, Jan. 19, 1818, ibid., p. 114.
would negotiate with the Quapaws8 for the purchase of the lands lying up the Arkansas to the west of the Cherokee settlement, and that when the same should be purchased he would direct them to be laid off for the Cherokees. Moreover, he said: "It is my wish that you should have no limits to the West, so that you may have good mill-seats, plenty of game, and not be sourrounded by the white people." Whatever were the wishes of the delegation, all those wishes, according to Calhoun, had been gratified when the delegation were ready to leave Washington, March 16.
"The Cherokees are anxious to have an outlet to the west, to the game country," said Calhoun in a letter of May 8.9 He said that it seemed fair that the Osages, who held the country west of the Cherokee settlement, and had been beaten in hostilities with the Cherokees, should either make a concession of such portion of their country as might give the outlet, or, at least grant the Cherokees an undisturbed passage to and from their hunting grounds. He desired an arrangement with the Cherokees which should be as favorable to them as justice permitted, since the President was anxious to hold out every inducement to them, and the other southern nations of Indians, to emigrate to the west of the Mississippi. By a treaty of September 25 the Osages ceded to the United States and forever quitclaimed a triangular tract of country extending from the present site of Fayetteville to the falls of the Verdigris.10
The treaty of 1817 provided for an indefinite boundary line on the western side of the Cherokee tract and the whereabouts of that line together with the right of possession and use of the country west of it was for a decade a subject of acrimonious contention between the Cherokees and the people of Arkansas Territory. Be-
8It was subsequently found that the lands belonged to the Osages, rather than to the Quapaws. Extract of a letter from Calhoun to Reuben Lewis, July 22, 1819, ibid., p. 7.
10Treaty of Sept. 25, 1818, 7 Statutes, 183. The tract is shown in Royce, Indian Land Cessions in the United States, map 21, no. 97.
fore the close of 1818 the Department of War directed that persons settled at points higher up the Arkansas than Fort Smith be removed,11 and the Department proposed to adhere to this order for eight years. But the Cherokees in the summer of 1821 found cause to complain that the promises of the government in relation to an outlet to the west had not been performed. In a letter of much later importance, Calhoun replied that it had always been the intention of the government to carry into effect, fully, every promise made by it to the Cherokees. He also said: "It is to be always understood that in removing the white settlers from Lovely's purchase for the purpose of giving the out let promised you to the West you acquire thereby no right to the soil but merely an out let, of which you appear to be already apprized, and that the government reserves to itself the right of making such disposition as it may think proper with regard to the salt springs upon that tract of country."12
The next year he stated that the Cherokees on the Arkansas prior to that time had had no limit to the west; but, as they wished the precise quantity of land to which they were entitled, agreeably to the treaty of 1817, to be laid off for them, he said that measures would be adopted for that purpose, as soon as the whole number of acres ceded by the Cherokee nation could be ascertained. "After a western boundary is fixed," he said, "their settlements must be confined entirely to their own limits."13 The surveys were made early in 1825 and the Cherokees were put in possession of a tract of land amounting to some four million acres.14 The western boundary as determined was a straight line drawn from Missouri, by way of Harrison, to a point about seven miles southwest of Fort
12Calhoun to Ticke-e-toke and four other chiefs of the Arkansas Cherokees, Oct. 8, 1821, O I A., Letter Book, Series I, E, p. 167; the letter is also in Cong. Record, 51 Cong. 1 sess., p. 1513.
13Extract of a letter from Calhoun to Gov. James Miller, Sept. 10, 1822, H. Documents, loc. cit., p. 9.
Smith.15 The next year the Secretary of War directed that the order of 1818 restricting settlement on the Arkansas above Fort Smith be suspended. The Cherokees became excited because of the settlement by white people on the lands of Lovely's Purchase just west of them. It was not yet known whether the tract laid off for the Cherokees contained the correct acreage because the surveys of Cherokee lands east of the Mississippi had not been completed. The Cherokees urged that the lands just west of them be withheld from white settlement until the proper acreage of their reservation should be determined.16 In a communication of more than a half dozen pages addressed to the Secretary of War on February 28, 1828 they set forth their rights to the lands and answered a memorial on the same subject addressed to the President of the Legislature of Arkansas Territory.17
On May 6 James Barbour, Secretary of War, concluded a treaty with the Western Cherokees.18 By the treaty the United States agreed to possess the Cherokees19 of, and to guarantee to them forever, a tract of seven millions acres of land bounded on the south by the Arkansas and the Canadian Rivers, and on the east by the present boundary of Arkansas and the southwest corner of Missouri. A part of the preamble of the treaty stated that the Cherokees were "resting also upon the pledges given them by the President of the United States, and the Secretary of War, of March, 1818, and 8th October, 1821, in regard to the outlet to the West." By the treaty the United States guaranteed to the Cherokee nation "a perpetual outlet, West," and a free and unmolested use of all
18Treaty of May 6, 1828, 7 Statutes, 311; Kappler ii, 288. The treaty provided that whenever the Cherokees might wish to lay off their lands, and own them individually, a surveyor should be sent to make the surveys at the cost of the United States.
19Compare this treaty with that of 1817. The Western Cherokees acquired no exclusive title to the territory ceded in the treaty of 1828, but the same was intended for the use of, and to be the home for, the whole nation, including as well that portion then east as that portion then west of the Mississippi.
the country lying west of the seven million acre tract and as far west as the sovereignty of the United States and their right of soil extended.20 In exchange for these provisions the Cherokees agreed to give up and surrender to the United States all the lands to which they were entitled in Arkansas, and which were secured to them by the treaty of 1817 and the convention of February 27, 1819. In the history of the lands of Oklahoma Territory there are few matters more difficult to untangle than the question of the Cherokee title to the Outlet. Some students of the subject found its origin in documents relative to Lovely's Purchase. Others have been content to begin with the treaty of 1828. In their view by the conclusion of that treaty former things were passed away; and all things were made new.
Although western lands had been provided for the Choctaws, Creeks, and Cherokees, it was not until 1828 or 1830 that Congress adopted the formal policy of concentrating Indians in the western part of the United States.21 By an act22 of May 28, 1830, the President was authorized to cause so much of any territory belonging to the United States, west of the Mississippi River, not included in any State or organized territory, and to which the Indian title had been extinguished, as he might judge necessary, to be divided into a suitable number of districts for the reception of such tribes or nations of Indians as might choose to exchange the lands where they then resided, and remove there; and to cause each of such districts to be so described by natural or artificial marks, as to be easily distinguished from each other.
20This language deserves critical examination. It would seem that the provision guaranteeing to the Cherokees "a free and unmolested use" of the country would include the right to use the same for an outlet west.
21F. L. Paxson, History of the American Frontier, 1763-1893, Ch. xxxi, "The Permanent Indian Frontier, 1825-1841." An illustrative map is included.
224 Statutes, 411. In regard to the passage of the act, see Annie H. Abel, "The History of Events Resulting in Indian Consolidation West of the Mississippi River," Amer. Hist. Assn., Annual Report, 1906, vol. i, pp. 378-381. See also the report of the Com. Ind. Aff., Dec. 1, 1836, H. Documents, 24 Cong. 2 sess., i(301), no. 2, pp. 370-373.
It should be lawful for the President to exchange any or all of such districts, so to be laid off and described, with any tribe or nation of Indians then residing within the limits of any of the States or Territories, and with which the United States had existing treaties, for the whole or any part or portion of the territory claimed and occupied by such tribe or nation, within the bounds of any one or more of the States or Territories, where the land claimed and occupied by the Indians, was owned by the United States, or the United States were bound to the State within which it lay to extinguish the Indian claim thereto. It should be lawful for the President, in the making of such exchange or exchanges, to assure the tribe or nation with which the exchange was made, that the United States would forever secure and guarantee to them, and their heirs or successors, the country so exchanged with them; and if they should prefer it23 that the United States would cause a patent or grant to be made and executed to them for the same. It was provided that such lands; should revert to the United States, if the Indians became extinct, or abandoned the same. It was declared lawful for the President to cause tribes or nations who should emigrate to the said districts to be protected, at their new residence, against all interruption or disturbance from other Indians, or from any other persons. Indian Territory comprised a remaining portion of lands originally granted to, or reserved for, the use of certain Indian tribes, and constituted a division of country set apart for the removal thereto of Indians from other localities.
In ratifying the Cherokee treaty of 1828 the Senate appended to it a proviso stating that the same should not be construed as to extend the northern boundary of the perpetual outlet west, north of the thirty-sixth degree of north latitude, or so as to interfere with the lands assigned, or to be assigned west of the Mississippi, to the Creek Indians under the provisions of any treaty already
23It is clear from the language used in the act that a patent was not deemed necessary to vest rights acquired by any tribe in an exchange of lands. The act did not state that the estate ceded should be in fee-simple, or of higher dignity than that exchanged.
concluded with them. By the treaty of January 24, 1826, the Creeks had the right to select and did select for themselves a part of the country which the treaty of 1828 assigned to the Cherokees. In a treaty24 concluded with the Western Cherokees February 14, 1833, the seven million acre tract was again defined by boundaries. In addition to the tract the United States further guaranteed to the Cherokee nation a perpetual outlet west and a free and unmolested use of all the country lying west of the said tract, as far west as the sovereignty of the United States and their right of soil extended. It was provided that if "the saline, or salt plain"25 should fall within the limits prescribed for the outlet, the right was reserved to the United States to permit other tribes of red men, to get salt on the plain in common with the Cherokees.26 According to the treaty, letters patent should be issued by the United States as soon as practicable for the lands guaranteed thereby. In article two the Cherokee nation relinquished and quitclaimed to the United States all right, interest and title which they had claimed to have in and to all the lands ceded to them in the treaty of 1828, and not embraced within the limits or boundaries fixed by "this present supplementary treaty or articles of convention and agreement."
25Within the limits prescribed for the outlet are three salt plains. On the Salt Fork of the Arkansas, four miles east of Cherokee, is the Alfalfa County Salt Plain. It is elliptical in shape and covers approximately sixty square miles. This is the largest of the Oklahoma Salt plains but it has no large salt springs at its surface. The Big Salt Plain of the Cimarron is about thirty miles west of Alva. It is of considerable historical importance because of rock salt available there. The Little Salt Plain of the Cimarron is just south of the Kansas line. In his report for 1898 Governor Barnes said: "On the great saline reservations in Woods and Woodward counties there are many places where for miles the ground is covered with salt, stretching in a dazzling, blinding whiteness as far as the eye can see, and for generations the Indian tribes of the West have been making pilgrimages to these lands to secure a supply of salt. Pure salt can be shoveled up with a scoop shovel at many places." H. Documents, 55 Cong. 3 sess., xvi(3758), p. 704.
Within the tract of country secured to the Creeks in 1883, just south of the Outlet and four miles west of Ferguson, is the Blaine County Salt Plain. Other salt areas of Oklahoma are for this study less important. There is a sketch map showing the location of salt plains in Oklahoma, in U. S. Geol. Survey Bull. 669, p. 127 (1919). See also C. N. Gould, "Salt," Okla. Geol. Survey Bull. 6, pp. 68-71 (1910); L. C. Snider, "The Salt Plains of Oklahoma," ibid., Bull. 11, pp. 202-204 (1913).
26In this way the treaty was like that the United States made on the same day with the Creeks who made the same concession should the salt "plains" fall within their lands. Kappler ii, 388.
The seven million acre tract was bounded on the west by the Creek country, on the south by the Canadian and Arkansas Rivers, and on the east by the present west boundary of Arkansas, the southwest corner of Missouri and the Grand River. From a point on the Grand River about two and one half miles north of the present north boundary of Oklahoma, the north boundary of the Cherokee country extended due west to the one hundredth meridian.27 The outlet was a rectangular tract, bounded on the west by the one hundredth meridian and on the south by the Creek country. The dividing line between the outlet and the seven million acre tract is not easy to determine. The outlet established in 1833 scarcely extended east of the ninety-seventh meridian; in later years, however, the term "Cherokee Outlet" was loosely applied to all the Cherokee lands west of the ninety-sixth meridian and south of Kansas.28 Enough appears in the Cherokee treaties of 1828 and 1833 to show that it was the policy of the government to induce the Cherokees, resident in any of the States or organized Territories, to surrender their lands and possessions to the United States, and emigrate and settle in the territory provided for them in the two treaties.
By an unratified treaty29 of June 19, 1834 entered into by John H. Eaton on the part of the United States and four delegates of the Eastern Cherokees, it was agreed that the Cherokee nation should cede to the United States all the lands, owned and possessed by them in Georgia, North Carolina, Tennessee and Alabama. It was further agreed that, to satisfy the Cherokee people who enter-
27The Oklahoma Panhandle is west of the one hundredth meridian, and became a part of the United States as a result of the annexation of Texas and the war with Mexico.
28See Indian Affairs, 1883, p. lii; 27 Statutes, 641. The term "Outlet" was sometimes confusing. In a letter to the Secretary of the Interior on Jan. 26, 1892 Commissioner T. J. Morgan observed that the western boundary of the seven million acre tract had not been ascertained, so that "no man knows to this day where the 'home' ceases and the 'outlet' begins," S. Ex. Docs., 52 Cong. 1 sess., v (2900) no, 63, p. 15.
29The proposed treaty and supplement thereto are in H. Documents, 24 Cong. 1 sess., vii (292), no. 286, pp. 133-140.
tained and expressed doubts if the country west, already possessed, and which should be patented to them, was adequate to the wants and probable necessities of the whole nation, that a rectangular tract of land containing about 800,000 acres and located in the southeast corner of the present State of Kansas30 should be added to "the large and extensive country" already secured to the Cherokees. The 800,000 acre tract was bounded on the west by the Osage reservation. Should it be satisfactorily ascertained, after the removal of the Cherokees to their western homes, that, in extent and quality, the country ceded to them for agricultural purposes was inadequate to their wants and necessities, then the United States, according to the proposed treaty, promised to use their endeavors to procure from the Osage Indians, along their southern boundary, a cession of such of their lands as might be sufficient to furnish a comfortable and satisfactory home for the Cherokee people; and if the United States should prove successful in the negotiation, the same should be assigned by patent to the Cherokees; and thereupon, if desired by the United States the Cherokee nation would surrender all the claim they had to an equal quantity of lands in the extreme western part of the Outlet. Certain lands in the above cession, already granted by treaty to the Senecas, Shawnees, and Quapaws should be reserved and excepted. But these tribes, if consented to by them and the Cherokees residing to the west, might become members of the Cherokee nation, in which case all the lands of the nation should be considered as being held in common. By a supplement to the proposed treaty executed June 23, it was agreed that the United States would approve an arrangement whereby the Cherokees might acquire a portion of the Osage reservation, should the Cherokees and Osages come to an agreement on the matter. The proposed treaty was presented to the Senate, but was not ratified by that body.31
The next winter rival delegations of the Eastern Cherokees, one headed by John Ross and the other by John Ridge, were in Washington. In a memorandum32 dated February 28, 1835 Lewis Cass, Secretary of War, stated that John F. Schermerhorn and the Ridge party had come to a general understanding in an arrangement by which the United States, among other things, should grant to the Cherokees the "entire property" of the Outlet, or about six million acres for their unconditional use. The articles of a proposed treaty were agreed upon March 14 between Schermerhorn and the Ridge party.33 The articles were to be considered merely as propositions to be made and explained to the Cherokee people who were to be assembled at New Echota; and if a majority of the people should appear to be in favor of the proposed treaty it should be considered as approved and confirmed by the Cherokee nation.
Although the Cherokee people in full council rejected the proposed treaty,34 it deserves consideration because of the construction placed upon the language of the articles regarding western lands. The provisions of the Cherokee treaty of 1833 describing the seven million acre tract and the Outlet and guaranteeing and securing the same to the Cherokee nation, together with the provision regarding the salt plain were incorporated in article three of the proposed treaty. Since it was apprehended by the Cherokees that in the cession of 1833 there was not contained a sufficient quantity of land for the accommodation of the whole nation, on their removal west of the Mississippi, the United States, therefore, covenanted and agreed to convey to the said Indians, and their descendants, by patent, in fee simple the additional 800,000 acre tract of country described in the unratified treaty of 1834. By the fourth article the United States also agreed that "the lands above
32The memorandum was delivered to Senator John P. King of Georgia, Feb. 28, 1835. President Jackson had already approved the course set forth therein. The memorandum is in S. Documents, 25 Cong. 2 sess., ii (315), no. 120, pp. 97-100.
ceded by the treaty of February 14, 1833, including the outlet and those ceded by this treaty"35 should be included in one patent, to be executed to the Cherokee nation, by the President, according to the provisions of the act of May 28, 1830. Other provisions of the proposed treaty stated that the United States should always have the right to establish such post and military roads, and forts, in any part of the Cherokee country, as they might deem proper for the interest and protection of the same. The United States covenanted and agreed that the lands to be included in the patent should in no future time, without the consent of the Cherokee nation, be included within the territorial limits or jurisdiction of any State or Territory. The Cherokees should also be protected against all interruption and intrusion from unauthorized citizens of the United States who might attempt to settle in the country without their consent. By the proposed treaty they ceded, relinquished, and conveyed their lands east of the Mississippi to the United States.
In a communication36 to the Eastern Cherokees on March 16, President Jackson said that among other things the proposed treaty provided for an addition to the country already assigned to them west of the Mississippi, "and for the conveyance of the whole of it, by patent, in fee simple." Furthermore his construction of the language used in the proposed treaty entitled the Cherokees to the right of permanent residence on the lands of the Outlet. He
35The words quoted were included in the treaty of December 29, 1835, proclaimed on May 23 of the next year. The Cherokees later claimed that by this treaty they were pledged the Outlet as land and not as the use of land. If the mere word "cede" conveys an absolute and complete title to lands, and the Supreme Court held that it did as used in the Choctaw and Chickasaw treaty of 1866, it would appear that the Cherokees acquired such a title to the Outlet; United States v. Choctaw and Chickasaw nations, 179 U. S. 494; 538. See also the construction suggested by Secretary John W. Noble, Feb. 13, 1892, in S. Ex. Docs., loc. cit., no. 63, p. 7.
No technical advantage of language should be taken of Indians in the construction of treaties. In 1832 the Supreme Court said in the case of Worcester v. Georgia: "The language used in treaties with the Indians should never be construed to their prejudice. If words be made use of which are susceptible of a more extended meaning than their plain import, as connected with the tenor of the treaty, they should be considered as used only in the latter sense. . . . How the words of the treaty were understood by this unlettered people, rather than their critical meaning, should form the rule of construction." 6 Peters 515; 582.
said that there were "thirteen millions of acres conveyed to the western Cherokees and yourselves by former treaties, and which are destined for your and their permanent residence; so that your whole country, west of the Mississippi, will contain not less than thirteen millions eight hundred thousand acres." In regard to the patent provided for in the proposed treaty, Schermerhorn, a commissioner of the United States, explained in a talk to the Cherokees37 that they would hold all their lands west of the Mississippi by the same title that the white man held his lands, as long as they existed as a "State," and resided upon the lands. He concluded a treaty at New Echota with certain Eastern Cherokees on December 29.38 The provisions regarding western lands in the rejected treaty of March 14 were written into the new treaty with no verbal change of importance so far as title was concerned.39
On July 5, 1836, Commissioner C. A. Harris of the Office of Indian Affairs appointed and instructed Isaac M. McCoy to cause the surveys of the lands ceded to the Cherokees by the treaty to be completed and to supply every deficiency connected with the subject at that time to prevent the issuing of a patent.40 On September 20, 1837 McCoy reported that the lands had been surveyed in two distinct tracts.41 The seven million acre district and the Outlet constituted the southern tract which was found to contain 13,574,-
37On July 20, 1835, Schermerhorn delivered the talk at a council convened at Running Water Council Ground. It is incorporated in his letter to Com. Herring, Aug. 3, 1835, S. Documents, loc. cit., pp. 450-462.
38Treaty of Dec. 29, 1835, 7 Statutes, 478; Kappler ii, 439-449. The journal of the proceedings of the council from December 21-30, is in S. Documents, loc. cit., pp. 513-517. General William Carroll signed the treaty although he did not attend the council. On December 31, two delegates from the Western Cherokees signed the treaty. Dr. Abel has observed that as a nation the Cherokees never consented to the treaty; "Indian Consolidation," p. 404. Six thousand Cherokees or about one-fourth of the tribe had removed to the west of the Mississippi; see census of Indian tribes reported in 1836, Register of Debates, in Congress, 24 Cong. 1 sess., Appendix p. 98.
39The Treaty of December 29, 1835 stated that the consideration for the 800,000 acre tract, afterwards known as the Cherokee Neutral Lands, should be a half million dollars.
41McCoy to Harris, ibid., pp. 950-952. The plat is dated September 20, 1837 and shows both tracts. It is in O I A., tube 418, map 102; and in S. Documents, loc cit., p. 952. Let it be said once for all that surveys of large tracts of land seldom net the same number of acres. The acreage is only approximate.
135.14 acres. To this area there was added the 800,000 acres in the northern tract, or the Cherokee Neutral Lands, making a grand total of 14,374,135.14 acres.
On July 12, 1838, the Eastern and Western Cherokees adopted an act of union42 in which it was solemnly and mutually agreed to form themselves into a body politic, under the title of the Cherokee nation. The act provided that all rights and titles to any public lands held by the Cherokees should be vested entire and unimpaired in the said nation as constituted by the union. On December 31 a patent,43 signed by President Van Buren, was issued to the Cherokee nation conveying the lands secured and guaranteed by the treaties of 1828, 1833, and 1835. According to the patent the United States gave and granted unto the said nation, the two tracts of land as surveyed under the direction of McCoy, to have and to hold the same, together with the rights, privileges and appurtenances thereto belonging to the said nation forever; subject, however to the right of the United States to permit other tribes of red men to get salt on the salt plain; and subject also to all other rights reserved to the United States, in and by articles two and three of the treaty of 1835; and subject also to the condition provided by the act of Congress of May 28, 1830, which condition was that the lands thereby granted should revert to the United States, if the Cherokee nation should become extinct, or abandon the same.
A treaty concluded August 6, 1846, stated that the lands then occupied by the Cherokee nation should be secured to the whole
42The act is in 40 C. Cls. pp. 271-272;, and in the appendix of S. Reports, 49 Cong. 1 sess., ix (2363), no. 1278, pt. ii, p. 257.
43The record of the patent, dated December 31, 1838, is in the Gen. Land Office, Miscellaneous, vol. 470, Donation, vol. 9, pp. 34-41; it is printed in the Cong. Record, 50 Cong. 2 sess., pp. 2598-2599.
In a message to the Cherokee Senate and Council November 4, 1885 Principal Chief D. W. Bushyhead said of the Cherokee title by patent in fee: "It is a bulwark of landed right that is depended upon by every landholder in the civilized world as able to withstand every assault except an invasion of the Huns and Goths. The bare suspicion that the title does not make the holder absolutely safe would be enough to convulse the continent from one ocean to the other." O I A., Misc. Documents, p. 34735.
Cherokee people for their common use and benefit;44 and that a patent should be issued for the same, including the 800,000 acres purchased, together with "the outlet west promised by the United States," in conformity with the provisions relating thereto, contained in the treaty of 1835 and in the act of Congress of May 28, 1830. The Old Settlers released and quitclaimed to the United States all right, title, interest or claim they might have to exclusive ownership to "the lands ceded45 to them by the treaty of 1833 west of the Mississippi, including the outlet west," and consented and agreed that the said lands, together with the 800,000 acres ceded to the Cherokees by the treaty of 1835, should be and remain the common property of the whole Cherokee people, themselves included. The patent referred to in the treaty was not issued. In later years it was claimed that the treaty of 1846 pledged anew to the Cherokees a fee simple title to lands including the outlet.
449 Statutes, 871; Kappler ii, 561-565. The purpose of the treaty was to allay serious dissension among the tribe. The Cherokees were represented by delegations from the Government Party, the Treaty Party, and the Old Settlers. The Cherokees who voluntarily removed west of the Mississippi prior to the treaty of 1835 were known as "Western Cherokees" or "Old Settlers"; United States v. Cherokee Nation, 202 U. S. 124. In regard to the three parties see Royce, "Cherokee Nation," p. 292 sqq.
45The word "ceded" appeared no less than three times in the body of the treaty of 1833. While the treaty did not state that the lands in the outlet west were ceded to the Cherokee nation, the language used might have meant that they were ceded.
4614 Statutes, 799; Kappler ii, 942. A supplemental article to the treaty was concluded and ratified in 1868.
47An understanding of how the Cherokees disposed of the Outlet requires an examination of article fifteen of the treaty, although the lands therein referred to were east of the ninety-sixth meridian. This article was a weapon with which the Cherokees were threatened when they tenaciously held to the Outlet.
The article follows: "The United States may settle any civilized Indians, friendly with the Cherokees and adjacent tribes, within the Cherokee country, on unoccupied lands east of 96°, on such terms as may be agreed upon by any such tribe and the Cherokees, subject to the approval of the President of the United States, which shall be consistent with the following provisions, viz: Should any such tribe or band of Indians settling in said country abandon their tribal organization, there being first paid into the Cherokee national fund a sum of money which shall sustain the same proportion to the then existing national fund that the number of Indians sustain to the whole number of Cherokees then residing in the Cherokee country, they shall be incorporated into and ever after remain a part of the Cherokee Nation, on equal terms in every respect with native citizens. And should any such tribe, thus settling in said country, decide to preserve their tribal organizations, and to maintain their tribal laws, customs, and usages, not inconsistent with the constitution and laws of the Cherokee Nation, they shall have a district of country set off for their use by metes and bounds equal to one hundred and sixty acres, if they should so decide, for each man, woman, and child of said tribe, and shall pay for the same into the national fund such price as may be agreed on by them and the Cherokee Nation, subject to the approval of the President of the United States, and in cases of disagreement the price to be fixed by the President.
"And the said tribe thus settled shall also pay into the national fund a sum of money, to be agreed on by the respective parties, not greater in proportion to the whole existing national fund and the probable proceeds of the lands herein ceded or authorized to be ceded or sold than their numbers bear to the whole number of Cherokees then residing in said country, and thence afterwards they shall enjoy all the rights of native Cherokees. But no Indians who have no tribal organizations, or who shall determine to abandon their tribal organizations, shall be permitted to settle east of the 96° of longitude without the consent of the Cherokee national council, or of a delegation duly appointed by it, being first obtained. And no Indians who have and determine to preserve their tribal organizations shall be permitted to settle, as herein provided, east of the 96° of longitude without such consent being first obtained, unless the President of the United States, after a full hearing of the objections offered by said council or delegation to such settlement, shall determine that the objections are insufficient, in which case he may authorize the settlement of such tribe east of the 96° of longitude."
In 1890 David Jerome observed that article fifteen might prove an important advantage to the government in settling "this vexed question" of how to get along with the Indian title in the Indian Territory. Proceedings of the councils the Cherokee Commission held with the Cherokees, Dec. 11, 1890, p. 63, O I A., Irregular Shaped Papers, Drawer 8.
So far as the Outlet was concerned, article sixteen, composed of three sentences, was the most important part of the treaty. In later years when valuable interests were involved, every word of the article was examined and reexamined in an effort to apply every possible construction.
Article sixteen reads: "The United States may settle friendly Indians in any part of the Cherokee country west of 96°, to be taken in a compact form in quantity not exceeding one hundred and sixty acres for each member of each of said tribes thus to be settled; the boundaries of each of said districts to be distinctly marked, and the land conveyed in fee-simple to each of said tribes to be held in common or by their numbers in severalty as the United States may decide. Said lands thus disposed of to be paid for to the Cherokee Nation at such price as may be agreed on between the said parties in interest, subject to the approval of the President; and if they should not agree, then the price to be fixed by the
President. The Cherokee Nation to retain the right of possession of and jurisdiction over all of said country west of 96° of longitude until thus sold and occupied, after which their jurisdiction and right of possession to terminate forever as to each of said districts thus sold and occupied."
It will be observed that the Cherokee country west of the ninety-sixth meridian included about 8,000,000 acres, about 2,000,000 acres of which were sliced from the home reservation, or from the 7,000,000 acre district. Article sixteen provided for the conveyance of the land in fee simple to Indian tribes, but did not specify by whom it should be conveyed. The last four words of the article deserve scrutiny. The words "thus sold" apparently refer to the words "paid for" used in the preceding sentence.48 If the Cherokees had a fee simple title to the Outlet prior to the treaty of 1866, which they appear to have had, the title remained in them until conveyed by them as provided for in the treaty, or otherwise. By the treaty the United States was made the agent of the Cherokees for the sale and disposition of the lands. It seems to have been a condition generally accepted that the Cherokees were occupying the lands of the Outlet; the patent of 1838 had specified that lands granted to the Cherokees should revert to the United States if the Cherokee nation abandoned the same.
According to the treaty, if the United States settled Indians on unoccupied lands east of the ninety-sixth meridian they were to be both "civilized" and "friendly," but the latter requirement alone sufficed for those settled west of that line. By article seventeen the Cherokee nation ceded, in trust to the United States the Cherokee Neutral Lands and the Cherokee Strip in Kansas,49 and consented
48Secretaries Teller and Noble and Chief Joel B. Mayes were agreed upon this construction. See S. Ex. Docs., 48 Cong. 2 sess., i (2261), no. 17, p. 5; S. Ex. Docs., 51 Cong. 1 sess., ix (2686), no. 78, p. 11; Mayes to Com. Ind. Aff., July 23, 1889, O I A., 6227 Ind. Div. 1889.
49This strip of land about two and one half miles wide, and extending eastward from the one hundredth meridian along the present north boundary of Oklahoma, has already been mentioned. An act of May 11, 1872 provided that the lands of this strip, with the approval of the Cherokees, should be surveyed under the direction of the commissioner of the general land office, in the same manner as the public lands of the United States were surveyed, and should be by him offered for sale under certain provisions and restrictions of that act. 17 Statutes, 98. The lands were subsequently sold to settlers. See Ann., Rpt., Sec. Int. 1876, 44 Cong. 2 sess., IV, i (1749), pp. 22-24. Hereafter the term "Cherokee Outlet" or "Outlet" will be understood to exclude any part of the Cherokee Strip in Kansas unless otherwise specified; nor shall any part of the said strip be regarded as Cherokee lands west of the ninety-sixth meridian unless specified as such.
that the lands therein might be included in the limits and jurisdiction of Kansas. Provisions were made whereby the lands, under the authority of the United States, might be surveyed, appraised, and sold for cash. The United States guaranteed to the people of the Cherokee nation the quiet and peaceable possession of their country and protection against domestic feuds and hostilities of other tribes. A provision destined to disappoint the Cherokees, bring annoyance to the government and grief to intruders, stated that the Cherokees should be protected against interruptions or intrusions from all unauthorized citizens of the United States who might attempt to settle on their lands or reside in their territory.
At Washington on July 9, 1868, Commissioner Nathaniel G. Taylor, representing the United States, and a duly authorized delegation of Cherokees concluded twenty-one articles of agreement and convention50 supplemental to the Cherokee treaty of 1866. The articles never reached the stage of ratification. The preamble recognized that many of the provisions of the treaty of 1866 were "so obscure and ambiguous as to render their true interest and meaning, on important points, difficult to define and impossible to execute."
Article two described the tract of land south of the thirty-seventh parallel, now known as the Oklahoma Panhandle, and included the tract within the boundaries of the Cherokee country. In the next article it was stipulated and agreed that the United States should pay to the Cherokee nation for their domain west of the ninety-sixth meridian and south of the thirty-seventh parallel, for the purpose of settling friendly Indians thereon, and for the Cherokee Strip in Kansas, containing altogether about 13,768,-
000 acres, the sum of $3,500,000; in further consideration of which sum the Cherokee nation relinquished to the United States all its right and interest in and to "that portion of the Cherokee 'outlet' embraced within the Pan Handle of Texas, containing about 3,000, 000 acres, and that portion within New Mexico and Colorado." A proviso added that the Cherokees should reserve all salines on the lands, "herein ceded" west of the Arkansas, east of the ninety-ninth meridian and south of Kansas, with right of way to and from the same in all directions, together with the free use of wood, coal and other facilities requisite for the development of said salines and for the manufacture of salt therefrom, and also the right of exporting and disposing of said salt free from taxation.
It was provided that Cherokee lands, not within the limits of any organized State or Territory should be occupied, United States employees excepted, by Indians only; provided that no Cherokee should settle on any of said lands, if assigned to other Indians, without first obtaining the consent of said Indians; provided also that the price of any of said lands which any Cherokee might purchase should be ascertained by the appraisement of said land at its relative value; and that such Cherokees as had made improvements on said lands should have the right to remain thereon, or should be paid the value of such improvements as he or she might elect. No Indians other than Cherokees should be permitted to settle in the Cherokee country east of the ninety-sixth meridian unless first admitted to citizenship by the Cherokee National Council.
Of peculiar importance was the language used in article twenty-one. The article provided that "all the lands embraced within the limits of the Cherokee Nation as defined in Article 2 of this treaty and not otherwise disposed of, shall be forever secured to the Cherokee people in fee simple, for their common use and benefit until such time as the National Council shall determine to have the same surveyed and allotted in severalty."
Commissioner E. S. Parker in a letter to the Secretary of the Interior on January 21, 1870, recommended the ratification of the treaty. Parker wrote: "The Eastern Cherokees by resolution adopted in general council Dec. 21, 1869, withdrew all opposition to the pending treaty and recommended its ratification. I therefore respectfully recommend the ratification of this treaty. If the Senate should think it advisable an amendment can be made to the effect that while the United States provide for the relinquishment by the Cherokees of their claims to land, it is done without the same being recognized and acknowledged by the government in every particular, as claimed by the Indians." Parker's recommendation did not result in ratification of the treaty. And after March 3, 1871 no Indian nation or tribe within the territory of the United States was acknowledged or recognized as an independent nation, tribe, or power with whom the United States might contract by treaty.
It has been explained how the Cherokees acquired in the Outlet an interest, a claim or title, the nature of which was a complicated matter.
—Berlin B. Chapman.
Fairmont State College,