On various pretexts, both white and colored men had from time to
time established themselves among the Cherokees and taken up their
residence as permanent citizens of the nation. The increase of their
numbers at length became so formidable and their influence upon the
national polity and legislation of the Cherokees so great as to excite
the apprehension and jealousy of the latter.
The policy of their removal therefore became a subject of serious
consideration with the national council. This involved a question as
to what were the essential prerequisites of Cherokee citizenship,
and who of the objectionable class were entitled, on any score, to
the privileges of such citizenship, as well as who were mere naked
intruders. Upon these points the national council assumed to exercise
absolute control, and proceeded to enact laws for the removal of all
persons, both white and colored, whom the council should declare not
entitled to remain in the Cherokee country.[677] The action of the
council in this respect was communicated to the Indian Department in
the fall of 1874, through the United States agent for that tribe,
coupled with a demand for the removal by the military force of the
United States of all who had thus been declared to be intruders. The
Department not being fully satisfied of the justice of this demand,
detailed an inspector to proceed to the Indian country and make a
thorough investigation of the subject. His report[678] revealed the
fact that there were large numbers of people in that country who had
been declared intruders by the national authorities, but who had
presented to him strong _ex parte_ evidence of their right to Cherokee
citizenship, either by blood, by adoption, or under the terms of the
9th article of the treaty of 1866 defining the status of colored
people. Affidavits in large numbers corroborative of the inspector's
report continued to be filed in the Indian Department during the
succeeding summer, from which it appeared that many persons belonging
to each of the classes alluded to had applied to the courts or to
the council of the nation for an affirmative ruling upon their claim
to citizenship, but that in many instances such applications had
been entirely ignored. In other cases, where the courts had actually
affirmed the right of applicants, the council had arbitrarily and
without notice placed their names upon the list of intruders and called
upon the United States for their removal. In this situation of affairs
the Indian Department advised[679] the principal chief of the Cherokees
that the Department would neither remove these alleged intruders nor
permit their removal until the Cherokee council had devised a system
of rules by which authority should be vested in the Cherokee courts to
hear and determine all cases involving the citizenship of any person.
These rules should be subject to the approval of the Secretary of the
Interior, to whom an appeal should also lie from any adverse decision
of those courts. As there were a number of these intruders, however,
who made no claim to the right of Cherokee citizenship, it was directed
by the Interior Department, in the spring of 1877, that all who should
not present _prima facie_ evidence of such right should be summarily
removed from the Territory. The main cause of difficulty, however,
continuing unadjusted, the principal chief of the Cherokees asked
the submission of the subject, from the Cherokee standpoint, to the
Attorney-General of the United States for his opinion. This was done in
the spring of 1879,[680] by the Commissioner of Indian Affairs through
the Secretary of the Interior, wherein the former, alleging that the
question submitted by the Cherokee authorities did not fully meet the
subject in dispute, and being desirous that a complete statement of
the case should be presented to the Attorney-General, suggested three
additional inquiries for the consideration of that officer. These
inquiries were, first, Have the Cherokee national authorities such
original right of sovereignty over their country and their people as to
vest in them the exclusive jurisdiction of all questions of citizenship
in that nation without reference to the paramount authority of the
United States? Second, If not, do they derive any such power or right
by the provisions of any of the treaties between the United States and
the Cherokees? Third, Can they exclude from citizenship any of the
Cherokees who did not remove under the provisions of the treaty of 1835
upon their removal to the Cherokee country as now defined by law? The
reply[681] of the Attorney-General was to the effect that it seemed
quite plain in executing such treaties as those with the Cherokees, the
United States were not bound to regard simply the Cherokee law and its
construction by the council of that nation, but that any Department
required to remove alleged intruders must determine for itself, under
the general law of the land, the existence and extent of the exigency
upon which such requisition was founded.
One class of these so-called intruders, as previously suggested, was
composed of colored people who resided in the Cherokee country prior to
the war, either as slaves or freemen, and their descendants.
The fourth article of the treaty of July 19, 1866, contained a
provision setting apart a tract within the Cherokee country known as
the Canadian district, for the settlement and occupancy of "all the
Cherokees and freed persons who were formerly slaves of any Cherokee,
and all free negroes not having been such slaves who resided in the
Cherokee Nation prior to June 1, 1861, who may within two years elect
not to reside northeast of the Arkansas River and southeast of Grand
River."
The fifth article of the same treaty guaranteed to such persons as
should determine to reside in the district thus set apart the right
to select their own local officers, judges, etc., and to manage and
control their local affairs in such manner as seemed most satisfactory
to them not inconsistent with the constitution and laws of the Cherokee
Nation or of the United States. Again it was provided by the ninth
article of the treaty that all freedmen who had been liberated by
voluntary act of their former owners or by law, as well as all free
colored persons who were in the country at the commencement of the
rebellion and were still residents therein or who should return within
six months and their descendants, should have all the rights of native
Cherokees.
Congressional legislation was sought in 1879, having in view the
enforcement of this ninth article, but it failed of consummation.[682]
The Cherokee council, in the mean time had passed[683] an act urging
upon the United States the adoption of some measures calculated
to reach a satisfactory adjustment of the status of the colored
people within their jurisdiction, and requested the attendance of
some properly authorized representative of the Government at their
ensuing council for consultation as to the most satisfactory method
of settling the vexed question. United States Indian Agent Tufts was
accordingly instructed[684] to attend the council, which he did. It
resulted in the passage[685] of an act by that body authorizing the
principal chief to appoint a commission of three Cherokees to confer
with the United States agent and draft articles of agreement, which
should, after receiving the approval of the council and of Congress,
be considered as permanently fixing the status of the colored people.
The agent, however, soon discovered that no action looking to the full
recognition of the rights to which they were entitled was likely to
receive favorable consideration. It seems from his report[686] that
it was still very unpopular in the Cherokee Nation to advocate any
measure conceding to the colored people the same rights enjoyed by the
Cherokees themselves, and that until a radical revolution of public
sentiment should take place among them it was useless to expect any
favorable action from the national council. Agent Tufts concluded his
report with a recommendation that a commission be appointed By the
Interior Department and instructed to hold sessions in the Cherokee
country, hear evidence, and determine the status of each disputed
claimant to citizenship, subject to the final revision and approval of
the Department. Inspector Ward and Special Agent Beede were, therefore,
instructed[687] to consult with Agent Tufts, and, after familiarizing
themselves with the question in all its details, to visit the executive
officers of the Cherokee Nation and see if some satisfactory solution
of the troublesome problem could be brought about. This conference,
like all previous efforts, failed of accomplishing the desired end.
Thus the question still stands, and all those persons who have been
able to make out a _prima facie_ showing of Cherokee citizenship, under
the ruling of the Department, are allowed to remain in the Territory
unmolested.