Cherokee Mythology (Illustrated Edition). James Mooney
of this council notice was served on the Cherokee to meet commissioners at New Echota in December following for the purpose of negotiating a treaty. The notice was also printed in the Cherokee language and circulated throughout the Nation, with a statement that those who failed to attend would be counted as assenting to any treaty that might be made.310
The council had authorized the regular delegation, headed by John Ross, to conclude a treaty either there or at Washington, but, finding that Schermerhorn had no authority to treat on any other basis than the one rejected by the Nation, the delegates proceeded to Washington.311 Before their departure John Ross, who had removed to Tennessee to escape persecution in his own state, was arrested at his home by the Georgia guard, all his private papers and the proceedings of the council being taken at the same time, and conveyed across the line into Georgia, where he was held for some time without charge against him, and at last released without apology or explanation. The poet, John Howard Payne, who was then stopping with Ross, engaged in the work of collecting historical and ethnologic material relating to the Cherokee, was seized at the same time, with all his letters and scientific manuscripts. The national paper, the Cherokee Phœnix, had been suppressed and its office plant seized by the same guard a few days before.312 Thus in their greatest need the Cherokee were deprived of the help and counsel of their teachers, their national press, and their chief.
Although for two months threats and inducements had been held out to secure a full attendance at the December conference at New Echota, there were present when the proceedings opened, according to the report of Schermerhorn himself, only from three hundred to five hundred men, women, and children, out of a population of over 17,000. Notwithstanding the paucity of attendance and the absence of the principal officers of the Nation, a committee was appointed to arrange the details of a treaty, which was finally drawn up and signed on December 29, 1835.313
Briefly stated, by this treaty of New Echota, Georgia, the Cherokee Nation ceded to the United States its whole remaining territory east of the Mississippi for the sum of five million dollars and a common joint interest in the territory already occupied by the western Cherokee, in what is now Indian Territory, with an additional smaller tract adjoining on the northeast, in what is now Kansas. Improvements were to be paid for, and the Indians were to be removed at the expense of the United States and subsisted at the expense of the Government for one year after their arrival in the new country. The removal was to take place within two years from the ratification of the treaty.
On the strong representations of the Cherokee signers, who would probably not have signed otherwise even then, it was agreed that a limited number of Cherokee who should desire to remain behind in North Carolina, Tennessee, and Alabama, and become citizens, having first been adjudged “qualified or calculated to become useful citizens,” might so remain, together with a few holding individual reservations under former treaties. This provision was allowed by the commissioners, but was afterward struck out on the announcement by President Jackson of his determination “not to allow any preemptions or reservations, his desire being that the whole Cherokee people should remove together.”
Provision was made also for the payment of debts due by the Indians out of any moneys coming to them under the treaty; for the reestablishment of the missions in the West; for pensions to Cherokee wounded in the service of the government in the war of 1812 and the Creek war; for permission to establish in the new country such military posts and roads for the use of the United States as should be deemed necessary; for satisfying Osage claims in the western territory and for bringing about a friendly understanding between the two tribes; and for the commutation of all annuities and other sums due from the United States into a permanent national fund, the interest to be placed at the disposal of the officers of the Cherokee Nation and by them disbursed, according to the will of their own people, for the care of schools and orphans, and for general national purposes.
The western territory assigned the Cherokee under this treaty was in two adjoining tracts, viz, (1) a tract of seven million acres, together with a “perpetual outlet west,” already assigned to the western Cherokee under treaty of 1833, as will hereafter be noted,314 being identical with the present area occupied by the Cherokee Nation in Indian Territory, together with the former “Cherokee strip,” with the exception of a two-mile strip along the northern boundary, now included within the limits of Kansas; (2) a smaller additional tract of eight hundred thousand acres, running fifty miles north and south and twenty-five miles east and west, in what is now the southeastern corner of Kansas. For this second tract the Cherokee themselves were to pay the United States five hundred thousand dollars.
The treaty of 1833, assigning the first described tract to the western Cherokee, states that the United States agrees to “guaranty it to them forever, and that guarantee is hereby pledged.” By the same treaty, “in addition to the seven millions of acres of land thus provided for and bounded, the United States further guaranty to the Cherokee nation a perpetual outlet west and a free and unmolested use of all the country lying west of the western boundary of said seven millions of acres, as far west as the sovereignty of the United States and their right of soil extend ... and letters patent shall be issued by the United States as soon as practicable for the land hereby guaranteed.” All this was reiterated by the present treaty, and made to include also the smaller (second) tract, in these words:
Art. 3. The United States also agree that the lands above ceded by the treaty of February 14, 1833, including the outlet, and those ceded by this treaty, shall all be included in one patent, executed to the Cherokee nation of Indians by the President of the United States, according to the provisions of the act of May 28, 1830....
Art. 5. The United States hereby covenant and agree that the lands ceded to the Cherokee nation in the foregoing article shall in no future time, without their consent, be included within the territorial limits or jurisdiction of any state or territory. But they shall secure to the Cherokee nation the right of their national councils to make and carry into effect all such laws as they may deem necessary for the government and protection of the persons and property within their own country belonging to their people or such persons as have connected themselves with them: Provided always, that they shall not be inconsistent with the Constitution of the United States and such acts of Congress as have been or may be passed regulating trade and intercourse with the Indians; and also that they shall not be considered as extending to such citizens and army of the United States as may travel or reside in the Indian country by permission, according to the laws and regulations established by the government of the same....
Art. 6. Perpetual peace and friendship shall exist between the citizens of the United States and the Cherokee Indians. The United States agree to protect the Cherokee nation from domestic strife and foreign enemies and against intestine wars between the several tribes. The Cherokees shall endeavor to preserve and maintain the peace of the country, and not make war upon their neighbors; they shall also be protected against interruption and intrusion from citizens of the United States who may attempt to settle in the country without their consent; and all such persons shall be removed from the same by order of the President of the United States. But this is not intended to prevent the residence among them of useful farmers, mechanics, and teachers for the instruction of the Indians according to treaty stipulations.
Article 7. The Cherokee nation having already made great progress in civilization, and deeming it important that every proper and laudable inducement should be offered to their people to improve their condition, as well as to guard and secure in the most effectual manner the rights guaranteed to them in this treaty, and with a view to illustrate the liberal and enlarged policy of the government of the United States toward the Indians in their removal beyond the territorial limits of the states, it is stipulated that they shall be entitled to a Delegate in the House of Representatives of the United States whenever Congress shall make provision for the same.
The instrument was signed by (Governor) William Carroll of Tennessee and (Reverend) J. F. Schermerhorn as commissioners—the former, however, having been unable to attend by reason of illness—and by twenty Cherokee, among whom the most prominent were Major Ridge and Elias Boudinot, former editor of the Phœnix. Neither John Ross nor any one of the officers of the Cherokee Nation was present or represented. After some changes by the Senate, it was ratified May 23, 1836.315
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