those already mentioned, it is well to observe, perhaps, that the title to
the reservation then occupied by the Seminoles was admitted to be
dependent upon Creek sufferance;[272] that the United States patent of
December 31, 1838, was recognized[273] as protecting the Cherokee; and
that the Osage lands in Kansas were inferentially covered by the
Confederate guarantee, given that tribe, of title in perpetuity.[274] The
Confederate States, moreover, agreed to indemnify[275] the Cherokees
should their Neutral Lands be lost to them through the misfortune of the
war. It is rather interesting to see that this new government, in
promising the insignificant tribes a permanent occupancy of their present
holdings, made use of the same high-flown, meaningless language that the
United States had so long used; but Albert Pike knew better than to assure
the truly powerful tribes that they should hold their lands themselves and
in common "as long as the grass should grow and the waters run." That
language could yet be made appealing and effective, though, in official
dealings with weak Wichitas,[276] Senecas, and Shawnees,[277] and, strange
as it may seem, even with Creeks.[278] In reciprocal fashion, the wild
Comanches could most naively promise[279] to hold the Confederate States
"by the hand, and have but one heart with them always."
Speaking of indemnification, we are reminded of other very important
financial obligations assumed by the Confederacy when it made its famous
treaties with the Indians west of Arkansas. Those financial obligations
comprised the payment of annuities due the tribes from the United States
in return for land cessions of enormous extent. They also comprised the
interest on various funds, such as the Orphan Creek fund, education funds,
and the like. Albert Pike had been given no specific authority to do this
but he knew well that no treaties could possibly be made without it. It
was not very likely that the slaveholding tribes would surrender so much
wealth for nothing, and so Pike argued, when justifying himself and his
actions later on. In his capacity as commissioner with plenary powers, he
also promised the Indians that the Confederacy would see to it that their
trust funds, secured by southern bonds, should be rendered safe and
negotiable. Over and above all this, the government of the Confederate
States made itself responsible for claims for damages of various sorts
that the different tribes had brought or were to bring against the United
States. Three good instances of the same are the following: the claim of
the Cherokees for losses, personal and national, incident to the removal
from Georgia; the claim[280] of the Seminoles for losses sustained by
reason of General Thomas S. Jesup's emancipation[281] order during the
progress of the Second Seminole War; and the claim of the Wichitas against
the United States government for having granted to the Choctaws the land
that belonged by hereditary preemption to them and had so belonged from
time out of mind. It is exceedingly interesting to know that these
Wichitas had been colonized on the very land they claimed as indisputably
their own.
In all the treaties, negotiated by Pike, except the two of the Third
Class,[282] the Wichita and the Comanche, the institution of slavery was
positively and particularly recognized, recognized as legal and as having
existed from time immemorial. Property rights in slaves were guaranteed.
Fugitive Slave Laws were declared operative within the Indian country, and
the mutual rendition of fugitives was promised throughout the length and
breadth of the Confederacy. The First Class of treaties differs from the
Second in this matter but only in a very slight degree. The latter
condenses in one clause[283] all that bears upon slavery in its various
aspects, the former separates the discussion of the legality of the
institution from that of the rendition of slaves. Of the First Class, the
Creek Treaty[284] constituted the model; of the Second, the Osage.[285]
Aside from the things to which reference has already been made, the
Confederate Indian treaties were, in a variety of ways and to the same
extent that the Confederate constitution itself was, a reflection upon
past history. To avoid the friction that had always been present between
the red men and their neighbors, an attempt was now made to redefine and
to readjust the relations of Indians with each other both within and
without the tribe; their relations with white men considered apart from
any political organization; their relations, either as individuals or as
tribes, with the several states of the Confederacy; and their relations
with the central government. In general, their rights, civil, political,
and judicial, as men and as semi-independent communities were now
specified under such conditions as made for what in times past would have
been regarded as full recognition, and even for enlargement. Indian rights
were at a premium because Indian alliances were in demand.
The relations of Indians with Indians need not be considered at length.
Suffice it to say that many clauses were devoted to the regulation of the
affairs of those tribes that were, either politically or ethnologically,
closely connected with each other; as, for example, the Choctaws and
Chickasaws on the one hand and the Creeks and Seminoles on the other.
Still other clauses assured the tribes of protection against hostile
invasion from red men and from white, and assured all the great tribes,
except the Cherokees,[286] of similar protection against domestic
violence.[287] The Cherokees, very possibly, were made an exception
because of the known intensity of their factional strife and hatred,
which, purely for its own selfish ends, the Confederacy had done so much
to augment. There may also have been some lingering doubt of John Ross's
sincerity in the matter of devotion to the Confederacy. The time had been
and might come again when the Confederacy would find it very expedient to
play off one faction against another. Injuries coming to the Indians from
a failure to protect were to be indemnified out of the Confederate
treasury. Could the United States, throughout the more than a hundred
years of its history have had just such a law, its national treasury would
have been saved millions and millions of dollars paid out in claims, just
and unjust, of white men against the Indians.
As affecting their relations with white men, the Indians were conceded the
right to determine absolutely, by their own legislation, the conditions of
their own tribal citizenship. This would mean, of course, the free
continuance of the custom of adoption, a custom more pernicious in Indian
history than even the principle of equal apportionment in Frankish;
because it was the entering wedge to territorial encroachment. The white
man, once adopted into the tribe as a citizen, was to be protected against
unjust discrimination or against the forfeiture of his acquired status.
The provisions against intruders were legitimately severe, those of the
United States had never been severe enough. The executive power had always
been very weak and very lax but now it was to reside in the tribal Council
and would bid fair to be firm because interested, or, perhaps, we should
say disinterested. The Confederacy, on its part, promised that the aid of
the military should be forthcoming for the expulsion of intruders on
application by the agent, should the tribal authority prove inadequate.
The Indians might compel the removal of obnoxious men from agency and
military reserves. Unauthorized settlement within the Indian country by
citizens of the Confederate States was absolutely forbidden under pain of
punishment by the tribe encroached upon.
With respect to Indian trade, there was considerable innovation and
considerable modification of existing laws. For years past, the Indians of
the great tribes had chafed under the restrictions which the United States
government had placed upon their trade and, unquestionably, no other
single thing had irritated them more than the very evident monopoly right
which the United States had given to a few white men over it. Indian
trade, under federal regulations, was nothing more nor less than an
extension of the protective policy, a policy that was destructive of all
competition and that put the Indian, often to the contempt of his
intelligence, at the mercy of the white sharper. Indian commissioner after
Indian commissioner had protested against it, but all in vain. George W.
Manypenny, particularly, had tried[288] to effect a change; for he was
himself convinced that, if the Indians were capable of self-government,
they were certainly capable of conducting their own trade. Needless to
say, Manypenny's efforts were entirely unavailing. The Indian trade in the
hands of the licensed white trader, although a pernicious thing for the
Indian, was an exceedingly lucrative business for enterprising American
citizens, white men who were, unfortunately, in possession of the elective
franchise but of little else that was honorable and the government,
controlled by constituents with local interests, dared not surrender it to
the unenfranchised Indians no matter how highly competent they might be.
Thus the Indian country, throughout its entire extent, was exploited for
the sake of the frontiersman. Moreover, the annuity money, a just tax upon
a government that had received so much real estate from the aborigines,
instead of being spent judiciously to meet the ends of civilization and in
such a way as to reflect credit upon the donor, who after all was a
self-constituted guardian, went right back into the pockets of United
States citizens but, of necessity, into those of only a very limited
number of them.
Because it was a matter of expediency and not because it was a principle
that it believed in, otherwise it would have given it to the weak tribes
as well as to the strong, the Confederacy gave to the Indians of the great
tribes, but not to all in exactly the same measure,[289] the control of
their own trade. It did not do away with the post trader, as it ought to
have done in order to make its reform complete, but it did deprive him of
his monopoly privileges. It hedged his license about with
restrictions,[290] made it subject, on complaint of the Indian and in the
event of arrearages, to revocation; and, to all of the great tribes except
the Seminoles, it gave the power of taxing his goods, his stock in trade,
usually a rather paltry outfit. No better precaution could have possibly
been devised against exorbitant charging. An ad valorem tax would most
certainly have quite eliminated the fifty, the one hundred, and the two
hundred per cents of profit. As a matter of fact, the extravagantly high
prices of the ordinary Indian trader would be, for most persons,
positively prohibitive. The Confederacy further bound itself to pay to the
Indians an annual compensation for the land and timber used by the trader.
The questions settled as between the several states and the Indian tribes
were chiefly[291] of property rights and of civil and criminal rights and
procedure. In addition to their property right in slaves, the Indians were
at last admitted to have a possible right in other things, in land, for
instance, that might lie within the limits of a state. This they were
henceforth to hold, dispose of as they pleased, and bequeath by will.[292]
Restrictions, likewise, upon their power freely to dispose of their
chattels,[293] were removed, a coordinate concession, but one that did not
so much affect their relations with a given individual state as their
relations with the central government. To such[294] of the Indians as were
not to be brought within the jurisdiction of the Confederate States
District Courts[295] that were to be created within the Indian country,
the right was given to sue and to implead in any of the courts of the
several states. To Indians generally of the great tribes was given the
right to be held competent as witnesses[296] in state courts, and, if
indicted there themselves, to subpoena witnesses and to employ
counsel.[297] The Cherokees, the Choctaws, and the Chickasaws were also
granted the right of recovery[298] as against citizens of the Confederate
States. Should recovery not be possible, the Confederacy was to stand the
loss. But more than anything else reciprocal right of extradition was
henceforth to be accorded. This was to exist as between tribe and
tribe[299] and, with some slight exceptions, as between tribe and state.
An examination of the various treaties reveals a steady development in the
matter of this concession. The Creek Treaty,[300] which was the first to
be negotiated, made extradition a rather one-sided[301] affair. The tribe
was to yield the criminal to the state, but, not reciprocally, the state
to the tribe. This verbal inequality would not have so much mattered had
there been a possibility that in the sequel it would have been
interpreted, as in the states, in terms of executive courtesy and
discretion; but the chances were that a state would have made it a matter
of absolute obligation with the tribe. Reciprocity[302] found its way into
the second treaty, however, and also into all the later ones of the First
Class. Finally, be it remarked, that as a climax to this series of
judicial concessions, full faith and credit[303] were to be given by the
one Indian nation or Confederate state, as the case might be, to all legal
processes, decisions, and acts of the other.
There yet remain two provisions[304] of importance that were intended to
put the Indian nations on a basis of equality with the states. They are
provisions rather particular in their nature, however, and, in their full
operation, would have affected Texas and Arkansas much more nearly than
any other members of the Southern Confederacy. The first of these
provisions is to be found, as a grant of mutual rights, only in treaties
of the First Class and in two only of those, the Choctaw and Chickasaw and
the Cherokee. The omission from the Creek and Seminole treaties was due,
most likely, to geographical conditions; but the lack of reciprocity in
the Osage, the one treaty of the Second Class in which a suggestion of the
provision occurs, was just as surely due to the weakness of the tribe from
which the privilege was exacted. The provision comprehended the use of
navigable streams within the limits of the Confederacy and the Indians
specified were to have the same rights in the premises as the citizens of
the Confederate States. Osage[305] streams and water courses were,
however, to be open to white people but not conversely Confederate waters
to the Osages. The clauses in treaties of the First Class, embodying this
provision, comprehended all navigable streams whatsoever but had
particular application to the Red and Arkansas Rivers, the Choctaw[306]
and Chickasaw to the former and the Cherokee[307] to the latter. The
rights of ferrying on these streams were to be open alike to white and red
men living upon their banks.
The second provision was couched in terms of general amnesty. The Indians
were to forgive wholesale the citizens of the individual Confederate
states for their past offences and, reciprocally, the states were to
forgive and pardon the Indians for theirs, or, rather, the government of
the Confederate States was to use its good offices to persuade and induce
them to do so.[308] The Choctaw and Chickasaw Treaty contained, in
addition to this general clause, a particular one bringing out again the
close connection with Texas and Arkansas. It reads thus:
... And the Confederate States will especially request the States of
Arkansas and Texas to grant the like amnesty as to all offences
committed by Choctaw or Chickasaw against the laws of those States
respectively, and the Governor of each to reprieve or pardon the same,
if necessary.[309]
Some evidence of the special interest Texas might have in the matter came
out rather prominently in the treaties of the Third Class, the amnesty in
them was particular while the amnesty in the treaties of the other two
classes was general. This is what the Wichita and Comanche say:
It is distinctly understood by the said several tribes and bands, that
the State of Texas is one of the Confederate States, and joins this
Convention, and signs it when the Commissioner signs it, and is bound
by it; and all hostilities and enmities between it and them are now
ended and are to be forgotten and forgiven on both sides.[310]
It soon developed that Texas was not pleased to find her consent so
thoroughly taken for granted and that the Reserve Indians were no better
satisfied. The enmity between the two continued as before.
As regarded the relations between the Indian tribes and the Confederate
States proper, the Pike treaties were old law in so far as they duplicated
the earlier United States treaty arrangements and new law only in so far
as they met conditions incident to the war. United States laws and
treaties were specifically continued in force wherever possible, and, in
most cases, the name of the one government was simply substituted for that
of the other. Considerable emphasis was laid upon the right of eminent
domain. The Indians conceded to the Confederacy the power to establish
agency reserves,[311] military posts[312] and fortifications, to maintain
post and military roads,[313] and to grant the right of way,[314] upon
payment of an indemnity,[315] to certain corporations for purposes of
internal improvement, mainly railway and telegraph lines. Most of this
would have contributed very materially to the good of the southern cause
in guarding one of the approaches to Texas and in increasing the
convenience of communication. The Confederate States assumed the wardship
of the tribes, exacted a pledge of loyalty from the weaker and one of
alliance,[316] offensive and defensive, but without the entail of
pecuniary responsibility, from the stronger. In its turn, the Confederacy
promised to the Indians many things, deserving of serious mention and far
too important for mere enumeration. As a matter of fact, the South paid
pretty dearly, from the view-point of historical consistency, for its
Indian alliance. In the light of Indian political history, it yielded far
more than at first glance appears and, as a consequence, the great tribes
gained nearly everything that they had been contending for for half a
century.
As has just been intimated, the concessions made by the Confederacy to the
Indians were somewhat significant. In addition to the things noted a few
paragraphs back, congressional delegates, control of trade, and others of
like import, Pike, the lawyer commissioner and the man of justice,
promised the establishment of Confederate States courts within the Indian
country. There were to be two of them, one in the Choctaw country[317]
and one in the Cherokee.[318] They were to be District Courts with a
limited Circuit Court jurisdiction. The importance of the concession
cannot well be over-estimated; for it struck at the root of one of the
chief Indian grievances. The territorial extent of the districts was left
a little vague and the jurisdiction was not fairly distributed. Here again
we have an illustration of might conditioning right. The Osages,[319] the
Senecas and Shawnees,[320] and the Quapaws[321] were all brought within
the limits of the Cha-lah-ki, or Cherokee district, but it is not clear
that, as far as they were concerned, any other offences than those against
the Fugitive Slave[322] laws, were to come within the purview of the
court. The Wichitas and Comanches were left entirely unassigned, although
naturally, they would have come within the Tush-ca-hom-ma, or Choctaw
district.
The Confederacy reinstituted the agency system and continued it with
modifications. These modifications were in line with reiterated complaints
of the Indians. They restricted the government patronage to some extent
and, in certain instances, allowed a good deal of tribal control. As a
general thing, to each tribe was allowed one agent and to each language,
one interpreter. An exception to the first provision was to be found
wherever it had been found under the earlier regime. Thus there was a
single agent for the Choctaws and Chickasaws, another for the fragmentary
tribes of the Leased District, and another for those of the Neosho River
country. In the minor treaties, it was stipulated, for very evident and
very sound reasons, most of them based upon experiences of past neglect,
that the agent should be faithful in the performance of his duties, that
he should reside at his agency continually, and never be absent for long
at a time or without good and sufficient cause.
There were also certain things the Indians were forbidden to do, many of
them familiar to us in any ordinary Bill of Rights and having reference to
ex-post facto laws, laws impairing the obligation of contracts, due
process of law, and the like. The Confederacy, in turn, bound itself not
to allow farming on government reserves or settlement there except under
certain conditions and not to treat[323] with Cherokee factions. It
inserted into the treaties with the minor tribes the usual number of
civilization clauses, promising agricultural and industrial support; and
into the Cherokee some things that were entirely new, notably a provision
that the congressional delegation from each of the great tribes should
have the right to nominate a youth to membership in any military academy
that might be established.[324] It also promised to maintain a postal
system throughout the Indian country, one that should be, in every
particular, a part of the postal system of the Confederate States with the
same rates, stamps, and so on. To the Cherokees, it promised the
additional privilege[325] of having the postmasters selected and appointed
from among their own people. From the foregoing analysis of the treaties,
it is clearly seen that the characteristic feature of them all was
conciliation and conciliation written very, very large. Of the great
tribes, the Confederacy asked an alliance full and complete; of the middle
tribes, such as the Osage, it asked a limited alliance and peace; and of
the most insignificant tribes it asked simply peace but that it was
prepared, not only to ask, but, if need be, to demand. Between the
Cherokees and the Wichitas, there was a wide, wide gulf and one that could
be measured only in terms of political and military importance.
So much for the contents of the treaties but what about the detailed
history of their negotiation? When Albert Pike first came within reach of
the Indian country, he communicated[326] officially or semi-officially
with the men belonging or recently belonging to the Indian field service,
agents and agency employees, or, at least, with those of them that were
known as Confederate sympathizers. A few very necessary changes had been
made in the service with the inauguration of President Lincoln but the
changes were not always such as could, in any wise, have strengthened the
Federal position. First, as regards the southern superintendency, an
attempt had been made to find a successor to Elias Rector[327] at about
the same time that Harrison B. Branch[328] of Missouri had been appointed
central superintendent in the stead of A. M. Robinson. The man chosen was
Samuel L. Griffith[329] of Fort Smith to whom the new Secretary of the
Interior, Caleb B. Smith, telegraphed on the fifth of April, tendering the
position. Similarly by wire, on the ninth, Griffith accepted; and, on the
tenth, explained[330] the delay in the following letter:
Being a member of our State Convention on the Union side, I hesitated
a day or two, as to the propriety of accepting, fearing it might
affect the union cause, but on mature deliberation and counsel with
union friends, and on the receipt of a memorial signed by a large
number of names of men of all parties, I concluded to accept....
Col. W. H. Garret Agt. for the Creeks, passed through this place on
the 8th....