The seventeenth article of the treaty of July 19, 1866, ceded to the
United States, in trust to be disposed of for the benefit of the
Cherokees, both the tract known as the "neutral land," previously
alluded to, and that known as the "Cherokee strip." The latter was a
narrow strip, extending from the Neosho River west to the western limit
of the Cherokee lands. The Cherokee domain, as described in the treaty
of 1835, extended northward to the south line of the Osage lands. When
the State of Kansas was admitted to the Union its south boundary was
made coincident with the thirty-seventh degree of north latitude, which
was found to run a short distance to the southward of the southern
Osage boundary, thus leaving the narrow "strip" of Cherokee lands
within the boundaries of that State.
The proviso of the seventeenth article just mentioned required that the
lands therein ceded should be surveyed, after the manner of surveying
the public lands of the United States, and should be appraised by two
commissioners, one of whom should be appointed by the United States and
the other by the Cherokee Nation, such appraisement not to average less
than $1.25 per acre. After such appraisement, the lands were to be sold
under the direction of the Secretary of the Interior on sealed bids, in
tracts of not exceeding 160 acres each, for cash, with the proviso that
nothing should forbid the sale, if deemed for the best interests of the
Indians, of the entire tract of "neutral land" (except the portion
occupied by actual settlers) in one body to any responsible party for
cash for a sum not less than $800,000. An exception was made as to the
lands which were occupied by bona fide white settlers at the date of
the signing of the treaty, who were allowed the privilege of purchasing
at the appraised value, exclusive of their improvements, in quantities
of not exceeding 160 acres each, to include such improvements.
The language of this seventeenth article being somewhat obscure and
subject to different interpretations as to the actual intent concerning
the method of disposing of the "Cherokee strip," no action was taken
toward its survey and sale until the year 1872, when by an act of
Congress[601] provision was made for the appraisal of that portion of
it lying east of Arkansas River at not less than $2 per acre, and the
portion west of that river at not less than $1.50 per acre. Further
provision was also made, by the same act, for its disposal on certain
conditions to actual settlers, and any portion not being rendered
amenable to these conditions was to be sold on sealed bids at not less
than the minimum price fixed by the act. A considerable quantity of
the most fertile portion of the tract was thus disposed of to actual
settlers, though, as an encouragement to the sale, Congress was induced
to pass an act[602] extending the limit of payment required of settlers
to January 1, 1875. The price fixed by the act of 1872 being so high
as to render the remainder of the land unattractive to settlers, a
subsequent act of Congress[603] directed that all unsold portions
of the said tract should be offered through the General Land Office
to settlers at $1.25 per acre, for the period of one year, and that
all land remaining unsold at the expiration of that period should be
sold for cash at not less than $1 per acre. This act was conditional
upon the approval of the Cherokee national council, which assent was
promptly given, and the lands were disposed of under its provisions.
Shortly after the ratification of the treaty of 1866 steps were taken
toward a disposition of the "neutral lands." Under date of August 30 of
that year Hon. James Harlan, Secretary of the Interior, entered into
a contract with a corporation known as the American Emigrant Company,
whereby that company became the purchaser, subject to the limitations
and restrictions set forth in the seventeenth article of the treaty, of
the whole tract of neutral land at the price of $1 per acre, payable
in installments, running through a period of several years. This
contract was subsequently declared invalid[604] by Hon. O. H. Browning,
the successor of Secretary Harlan, on the score that the proviso
"for cash," contained in the treaty of 1866, in the common business
acceptation of the term, meant a payment of the purchase price in full
by the purchaser at the time of the sale, and was intended to forbid
any sale on deferred payments.
In the following spring[605] an agreement was entered into between the
Cherokee authorities and the Atlantic and Pacific Railway Company,
which involved a modification of the seventeenth article of the treaty
of 1866, and engaged to sell the "neutral lands" to that company on
credit. This agreement was submitted by the Commissioner of Indian
Affairs to the Secretary of the Interior for transmission through the
President to the Senate for ratification as an amended article to
the treaty of July 19, 1866, but did not meet with favorable action.
Subsequently[606] the Secretary of the Interior entered into an
agreement with James F. Joy, of Detroit, Mich., whereby the latter
became the purchaser of all that portion of the "neutral land" not
subject to the rights of actual settlers, at the price of $1 per acre
in cash. Difficulties having arisen by reason of the conflicting claims
of the different would-be purchasers, it was finally deemed judicious
to obviate them by concluding a supplemental article to the treaty of
1866. This was accordingly done, at Washington, on the 27th of April,
1868, and the same was ratified and proclaimed on the 10th of June
following.[607] This supplemental treaty provided for the assignment by
the American Emigrant Company to James F. Joy of its contract of August
30, 1866. It was further stipulated that that contract, in a modified
form, should be reaffirmed and declared valid, and that the contract
entered into with James F. Joy on the 9th of October, 1867, should be
relinquished and canceled. Furthermore, it was agreed that the first
contract, as modified, and the assignment to Joy, together with the
relinquishment of the second contract, should be considered ratified
and confirmed whenever such assignment and relinquishment should be
entered of record in the Department of the Interior and when James F.
Joy should have accepted such assignment and entered into a contract
with the Secretary of the Interior to assume and perform all the
obligations of the American Emigrant Company under the first mentioned
contract as modified.
The assignment of their contract with Secretary Harlan by the American
Emigrant Company to James F. Joy was made on the 6th of June, 1868.
The contract of October 9, 1867, between Secretary Browning and James
F. Joy was relinquished by the latter June 8, 1868, and on the same
day a new contract was entered into with Joy accepting the assignment
of the American Emigrant Company and undertaking to assume and perform
all the obligations of the original contractor thereunder, subject to
the modifications prescribed in the supplemental treaty of April 27,
1868.[608]
The requirement of the treaty of 1866 as to the appraisal of the
neutral lands was carried into effect by the appointment of John T.
Cox, on behalf of the United States, and of William A. Phillips, on
behalf of the Cherokees, as commissioners of appraisal. From their
report as corrected it is ascertained that the quantity awarded to
settlers was 154,395.12[609] acres; quantity purchased by Joy under
his contract, 640,199.69 acres. A portion of the lands awarded to
settlers, but upon which default was made in payment, and amounting
to 3,231.21[610] acres, was advertised and sold on sealed bids to
the highest bidders.[611] A small portion[612] of the tract was also
absorbed by the claims of Cherokees who were settled thereon. The
entire area of the neutral lands, as shown by the plats of survey, was
799,614.72 acres.