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Treaty with the Cherokee, 1835 (Treaty of New Echota) to Treaty with the Cherokee, 1868
(includes unratified treaties)
(part one) (part two)

The Cherokee were not the first tribe to sign a treaty with the United States. Nor was that treaty the first signed by the tribe and a foreign power in the "New World"—they signed a treaty with the colony of South Carolina in 1721 and there is record of a possible treaty as far back as 1684. As with what followed, it did set the pattern for land cession that would continue through the treaties and the General Allotment Act ("Dawes Act") into the twentieth century. The pattern where peace and friendship are promised and then later rescinded (often arbitrarily) is also clear throughout.

While it is true that there are unique aspects pertaining to any treaties made between the US and American Indian bands or nations, the record of the interaction between (and against) the Cherokee can give an informative look at many of the typical ideas, methods, and coercions that went into the "treaty process" the US used in dealing with the "Indian problem."

Treaty with the Cherokee, 1835 (Treaty of New Echota) 29 December 1835

With the Treaty of New Echota, the government finally got the remaining Eastern band to "remove." By then, intrusions on their lands were common and intensifying (especially after gold had been discovered in 1828). Georgia refused to do anything (even encouraged and facilitated it) and the federal government couldn't (it's doubtful they would have had they been given jurisdiction). The Supreme Court ruled that the Cherokee Nation had a degree of separate sovereignty that the state had no jurisdiction over, nor could its citizens intrude and steal land. But despite the "victory," Andrew Jackson made clear his intention not to do anything about it with his reported comment that "[Chief Justice] John Marshall has made his decision. Now let him enforce it."

Given what a minority of Cherokee known as the "Treaty Party" felt was a choice between removal and extermination, they signed the treaty against the will of the other leaders and most of the Eastern band (something they were well aware could mean death according to the Cherokee Constitution—in the years following, several of the Treaty Party leaders were killed for their actions). While they did what they felt was necessary to save the Nation (which it likely did), it was this treaty that led to the Trail of Tears.

In it, the Cherokee agreed to cede "all the lands owned, claimed or possessed by them east of the Mississippi River, and hereby release all their claims upon the United States for spoliations of every kind for and in consideration of the sum of five millions of dollars to be expended paid and invested" (charges that the Treaty Party members did it for the money came quickly following signing). Since the numbers of the Eastern band moving to Indian Territory would result in running out of land to accommodate them, certain "redrawing" of reserved land was made (land that had been granted to the Osage and Quapaw).

The US reserved the right to build roads and forts "in any part of the Cherokee country, as they may deem proper for the interest and protection of the same and the free use of as much land, timber, fuel and materials of all kinds for the construction and support of the same as may be necessary." Compensation was promised if "private rights of individuals are interfered with." Also "in no future time" without Cherokee consent could their land be "included within the territorial limits or jurisdiction of any State or Territory." The Cherokee had to create their own laws and government and "protection of the persons and property within their own country belonging to their people or such persons as have connected themselves" (emphasis mine). This was provided that the laws were consistent with the US Constitution and did not interfere with government regulation of trade nor extended to soldiers and citizens passing through or living there with permission. Again, control is maintained and the Indians given only limited self-rule.

"Perpetual peace and friendship" was asserted and a promise to help the nation with "domestic strife and foreign enemies" and war with other tribes. Also, a promise to aid against intrusions (not that it ever stopped them before)—though "useful farmers, mechanics and teachers for the instruction of Indians" are not meant to be prevented from living on Cherokee land. Transportation and one year's rations would be provided for removal and compensation of $20 per family member, or if the rations were waived $33.

Agents would be assigned to make a "just and fair valuation" of "improvements" on Cherokee land in order to compensate for them—but any debts would be paid out of that money. Similar compensation was to be given for missionary property. Any teachers would be allowed to remove under the same conditions (so to speak—it is unlikely they would be subjected to their own "trail of tears").

The government would invest in stock to establish a "permanent fund" for the tribe "viz: the sum of two hundred thousand dollars in addition to the present annuities of the nation to constitute a general fund the interest of which shall be applied annually by the council of the nation to such purposes as they may deem best for the general interest of their people." Also $50,000 for an orphans' fund and $150,000 for an education/school fund. That said, the president would be able to review how the money was being put to use and if found to be "misapplied," could "correct any abuses of them and direct the manner of their application for the purposes for which they were intended." While the Cherokee could take out the money and reinvest it elsewhere, they would have to give two years notice. The government could also use the money for payment of debt and any claims against the nation.

The Cherokee would agree to "commute" their current "permanent" annuities which would then also be invested. An offer of citizenship was given again (for those "who are qualified or calculated to become useful citizens"), though this time only 160 acres were offered. Again, the offer is interesting and probably not seriously intended as evidenced by a number of Indians who stayed in the Georgia area, living near starvation at times and hiding out in caves. But Indians who fought on the side of the US in "late war with Great Britain" (War of 1812) and those wounded in service would receive pensions and the tribe a "representative" in Congress. Indians were also given two years to "remove," during which time the US promised protection.

A supplement to the treaty was added the following year, where the Western band sent a message that they were sending a council to "assure [the Eastern band] of the friendly disposition of their people and their desire that the nation should again be united as one people" and to give them a "hearty welcome and an equal participation with them in all the benefits and privileges."

Treaty with the Cherokee, 1846 (Treaty of Washington, DC, one of six) 6 August 1846

It began by promising that "the lands now occupied by the Cherokee Nation shall be secured to the whole Cherokee people for their common use and benefit; and a patent shall be issued for the same." On the other hand, "Provided, always, That such lands shall revert to the United States if the Indians become extinct or abandon the same" (italics in original). Either way being acceptable.

Dissension in the tribe (between bands and factions) was considered a problem and the US called for "all difficulties and differences heretofore existing between the several parties of the Cherokee Nation [be] hereby settled and adjusted, and shall...be forgotten and forever buried in oblivion." The treaty demanded that "party distinctions shall cease," a "general amnesty" called, and that "all offenses and crimes committed by a citizen or citizens of the Cherokee Nation against the nation, or against an individual or individuals, [be] hereby pardoned."

As part of this unification plan, the treaty imposed a US-style governmental/judicial system. Laws would be made and followed and given "full authority," and "equal protection" ("for the security of life, liberty and property") for all former groups. The right to assemble and redress grievances would be established, all military or quasimilitary groups (especially ones dealing with law and order—though a nation without military groups would be desirable for the US) disbanded, and "laws enforced by the civil authority alone" in courts with juries. Any "fugitives from justice" who sought to hide in Cherokee territory would be returned to the US for its brand of justice (the implication suggests this was primarily aimed at Indian fugitives).

The Western band would receive compensation and relinquish "all right, title, interest, or claim" to any lands east of the Mississippi River as well as "exclusive ownership" to lands given them west of the river. This would make the land property of all the Cherokee (forcing unification). Since the Treaty Party "suffered losses and incurred expenses in consequence of the treaty of 1835," it would receive restitution from the government in the amount of $115,000 dollars. As usual, any compensation paid out would deny the right for any future claims against the government.

Two thousand dollars would be given for a "printing-press, materials, and other property destroyed at that time" (the destruction of the press and offices of the Cherokee Phoenix newspaper). Compensation would also be given for "arms...taken from them previous to their removal West" and $20,000 to cover all claims prior to 1835.

In general, the treaty was a means to consolidate control, quell dissent, and placate the remaining in order to make sure there were no restless natives that might cause a problem.

Treaty with the Cherokee, 1866 (Treaty of Washington, DC, one of six) 19 July 1866

Since the Cherokee had made a treaty with the South during the Civil War, a new treaty was necessary between them and the US in order to declare "void" the "pretended treaty made with the so-called Confederate States."

It stated that "all crimes and misdemeanors committed by one Cherokee on the person or property of another Cherokee, or of a citizen of the United States" prior to 4 July of that year would be covered under an amnesty and that "action arising out of wrongs committed in aid or in the suppression of the rebellion" would not be prosecuted either by US or Cherokee court. But they were required to return "all public property, particularly ordnance, ordnance stores, arms of all kinds, and quartermaster’s stores, in their possession or control" that had been acquired from either the Union or the Confederacy during the war. This would be done "without any reservation." Any property that had been confiscated under the laws of the nation during the war would have to be returned to the owners and those who had purchased the property would be paid out of the Cherokee treasury.

Cherokees and freed persons who had been slaves to other Cherokee and free blacks who had not been slaves would be given the option to move to another part of Indian territory where they could receive land on which to live. They would "have the right to elect all local officers and judges, and the number of delegates to which by their numbers they may be entitled" and "control all their local affairs." This included creating a police force and system of justice. As usual, one that would be "consistent" with the US Consitution.

There was a provision that would allow the president to "suspend" any rules and regulations if he felt they would "bear oppressively on any citizen of the nation." All Cherokee would have rights in either area and any laws "discriminating against the citizens of other districts" would be prohibited. In fact, laws should not only be "uniform" throughout the nation, but any that in the president's "opinion" that "operate unjustly or injuriously" allowed him to be "authorized and empowered to correct such evil, and to adopt the means necessary to secure the impartial administration of justice."

A US court was to be established (the nearest one to the territory having temporary jurisdiction) to have "exclusive original jurisdiction" over any case involving someone within the territory and someone outside of it (another foreshadowing of the Major Crimes Act of 1885).

As was typical, these were not only a means to maintain order, but a means to control the affairs of the people in the territory under the auspices of generosity.

The treaty also stated that any license to sell or trade in the territory had to come with approval of the nation, slavery and involuntary servitude were abolished (and made illegal), and the right of way given for passage of the railroad (something that significantly carved up Indian Territory in the coming years). A council, under the direction of the Commissioner of Indian Affairs, was to be set up, meet, and have the power to

legislate upon matters pertaining to the intercourse and relations of the Indian tribes and nations and colonies of freedmen resident in said Territory; the arrest and extradition of criminals and offenders escaping from one tribe to another, or into any community of freedmen; the administration of justice between members of different tribes of said Territory and persons other than Indians and members of said tribes or nations; and the common defence and safety of the nations of said Territory.

"Judicial tribunals" would be set up to deal with territorial justice (not covered by the US court—of course these courts would lose certain jurisdiction under the Major Crimes Act). The government would also have the right to settle "civilized Indians, friendly with the Cherokees and adjacent tribes" on certain parts of the nation's land—with compensation and approval (something the president could overrule if he felt the "objections are insufficient").

And the treaty couldn't be complete without land cession. The nation had to agree to cede a tract of land that it had been sold years earlier (with some compensation for land and improvements). Territorial boundaries were also to be clearly marked. Military posts could be built on nation land (a promise to disallow the sale of liquor was attached).

Rounding out the treaty were promises to help support schools, give a pension gift to a retired missionary ("now a cripple, old and poor"), "bounties and arrears" owed Indians who had served in the war (for the Union), and once again, a "guarantee" from the benevolent nation for

the quiet and peaceable possession of their country and protection against domestic feuds and insurrections, and against hostilities of other tribes. They shall also be protected against inter[r]uptions or intrusion from all unauthorized citizens of the United States who may attempt to settle on their lands or reside in their territory. In case of hostilities among the Indian tribes, the United States agree that the party or parties commencing the same shall, so far as practicable, make reparation for the damages done.

Treaty with the Cherokee, 1868 (Treaty of Washington, DC, one of six) 27 July 1868 (supplement to 1866)

Unsurprisingly, a sort of anticlimax to nearly one hundred years of (broken) treaties. It mainly deals with governmental machinations relating to the sale of the tract of land in the previous treaty and the amount that would be granted the Cherokee for its sale.

A few years later (1871), the government decided that they would no longer use treaties to deal with the Indians and following that, it exercised control without even a "ceremonial" approval by the people. This did not mean they couldn't make "agreements" with the Indians or deal with them through "executive order," both of which they did.

Unratified Treaties

Agreement with the Cherokee, 1835 (Treaty of Washington, DC) 14 March 1835

This was basically a precursor for the Treaty of Echota that was passed later that year.

Agreement with the Cherokee and other tribes in the Indian Territory, 1865 (Fort Smith Arkansas) 13 September 1865

First, it was another treaty dealing with the end of the Civil War (the "other tribes" were the Chickasaw, the Choctow, the Creek, the Osage, the Quapaw, the Seminole, the Seneca, and the Seneca and Shawnee). It was essentially a form of loyalty oath to the newly reunified Union:

The undersigned do hereby acknowledge themselves to be under the protection of the United States of America, and covenant and agree, that hereafter they will in all things recognize the government of the United States as exercising exclusive jurisdiction over them, and will not enter into any allegiance or conventional arrangement with any state, nation, power or sovereign whatsoever; that any treaty of alliance for cession of land, or any act heretofore done by them, or any of their people, by which they renounce their allegiance to the United States, is hereby revoked, cancelled, and repudiated. In consideration of the foregoing stipulations...the United States, through its commissioners, promises that it will re-establish peace and friendship with all the nations and tribes of Indians within the limits of the so-called Indian country; that it will afford ample protection for the security of the persons and property of the respective nations or tribes, and declares its willingness to enter into treaties to arrange and settle all questions relating to and growing out of former treaties with said nations....

Second, and more interesting, is that is wasn't considered a treaty but "simply an agreement" and wasn't even filed with the Indian Office—the copy was originally from the Report of the Commissioner of Indian Affairs for 1865 (my source is the online version of Charles J. Kappler's three volume Indian Affairs: Laws and Treaties published between 1902 and 1913). Though unratified (unnecessary given it wasn't considered a treaty), it was signed and used as a basis of a later treaty with the Seminole (1866).

(Part one: Treaties with the Cherokee 1785-1835)

(Sources: primary source and source for all treaty quotes was the indispensable digital.library.okstate.edu/kappler/index.htm, www.tolatsga.org/Cherokee2.html, and extensive reading on the subject—for additional sources refer to my previous work on the subject of the American Indian)

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