During the proceedings incident to the negotiation of this treaty the
question arose as to what constituted the proper western limit of the
Cherokee country.
The Cherokees themselves claimed that their territory extended at least
as far west as 103° west longitude, being the northeast corner of New
Mexico. Their claim was based in part upon the second article of the
treaty of 1828,[620] the first article of the treaty of 1833,[621] the
second article of the treaty of 1835,[622] and the first article of the
treaty of 1846.[623]
The treaty of 1828 guaranteed to the Cherokees seven millions of acres
of land, and then declared in the following words: "In addition to the
seven millions of acres thus provided for, and bounded, the United
States further guarantee 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 the above described limits, and as far west as
the sovereignty of the United States and their right of soil extend."
This guarantee was reaffirmed in similar language by the treaties
of 1833 and 1835, and the guaranty contained in the treaty of 1835
was reaffirmed by the treaty of 1846. The question, therefore, to
be determined was what constituted the extreme western limit of the
sovereignty of the United States in that vicinity.
The colony or province of Louisiana had originally belonged to France.
In 1762 it was transferred to Spain, but was by Spain retroceded to
France by the treaty of 1800. In 1803 the Emperor Napoleon, fearing a
war with England and the consequent occupation of the territory by that
power, ceded it to the United States, but the boundaries of the cession
were very indefinite and, according to Chief Justice Marshall, were
couched in terms of "studied ambiguity."
It seems to have been consistently claimed by the United States up
to the treaty of 1819 with Spain that the western boundary of the
Louisiana purchase extended to the Rio Grande River. The better opinion
seemed also to be that it followed up the Rio Grande from the mouth to
the mouth of the Pecos, and thence north. By that treaty, however, all
dispute concerning boundaries was adjusted and the undefined boundary
between Louisiana and Mexico was settled as following up the course of
the Sabine River to the Red River; thence by the course of that river
to the one hundredth meridian, thence north to the Arkansas River and
following the course of that river to the forty-second parallel, and
thence west to the Pacific Ocean. By many the position was taken that
this treaty was a _nudum pactum_, and Henry Clay, when it was under
consideration in the Senate, introduced a resolution into the House of
Representatives declaring that Texas, being a part of the territory of
the United States, could not be ceded by the treaty making power to
a foreign country, and that the act was not only unauthorized by the
Constitution but was void for another reason, viz, that this cession
to Spain was in direct conflict with clear and positive stipulations
made by us in the treaty with France as to the disposition of the whole
territory. Under this theory of the invalidity of the treaty of 1819
the Cherokees claimed the extension of their boundary west of the one
hundredth meridian. But, assuming the insufficiency of this claim, they
still fortified their title upon another proposition. Mexico succeeded,
by the consummation of her independence, to all the territorial rights
of Spain in this region. Texas in turn achieved her independence of
Mexico in 1836. In March, 1845, Texas became one of the United States,
and thus, according to the Cherokee assumption, "the United States
again came into possession of that portion of the outlet west of 100°,
if indeed it had ever been a part of the territory claimed by Mexico
and which by Texan independence she was forced to relinquish. The
United States, more than a year after she had come into possession of
the country now claimed by the Cherokees, reaffirmed the grant to them,
that is to say, by the treaty of August 17, 1846."
The "portion of the outlet west of 100°" here alluded to is the strip
of country lying between Kansas and Texas from north to south and
between the 100° and New Mexico from east to west. By act of Congress
of September 9, 1850,[624] the east boundary of New Mexico was fixed
at 103° west longitude and the north boundary of Texas at 36° 30'
north latitude, and by act of May 30, 1854,[625] the south boundary of
Kansas was established at 37° north latitude, thus leaving this strip
of country outside the limits of any organized State or Territory,
and so it still remains. This claim of the Cherokees was admitted by
the Commissioner of Indian Affairs at the time of the conclusion of
the treaty of July 9, 1868, to be a valid one, and was inserted in
the boundaries defined by that treaty. The treaty, however, failed
of ratification, and it was afterwards determined by the executive
authorities of the United States that at the date of the treaty of
1835 with the Cherokees the sovereignty of the United States extended
only to the one hundredth meridian, and that the reaffirmation of the
treaty guarantee of 1835 by subsequent treaties was not intended to
enlarge the area of their territory, but simply as an assurance that
the United States were fully conscious of their obligation to maintain
the integrity of such guarantee. Consequently the Cherokee outlet was
limited in its western protraction to that meridian.