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the Confederacy (1 Confed. Stat., 311-331), although many Choctaws and Chickasaws remained loyal to the Federal Government. Reasons for the course of the Choctaws and Chickasaws may be readily found. Some of them owned slaves. Two adjoining States, Arkansas and Texas, were also slave States. At the beginning of the war the Government was compelled to abandon its forts in the Choctaw-Chickasaw country and to remove its soldiers therefrom. Therefore, the Gorernment was unable to give proper protection to these two tribes. Moreover, the United States Indian agent for those tribes, D. H. Cooper, quit the Federal and joined the Confederate government, and urged the Indians under his charge to do the same thing. (Misc. Doc. No. 40, 44th Cong., 1st sess.)
FORT SMITH CONFERENCE
After the Civil War the Government desired locations not only for the western Indians named in the treaty of 1855 but for all western Indians of the plains. Accordingly, a commission of the Government and representatives of all the Indian tribes of the Southwest including the Choctaws and Chickasaws, met at Fort Smith, Ark., in September, 1865, to negotiate new treaties. The Government commission was headed by Mr. D. N. Cooley, then Commissioner of Indian Affairs. In his address to the Indian delegates Mr. Cooley advised them that they had “rightfully forfeited all annuities and interest in the lands in the Indian Territory” by reason of their having joined the Confederacy, and that it was necessary to make new treaties with all such Indians. (Report of Committee on Indian Affairs, 1865, p. 297.) On account of the unfriendly surroundings
) the delegates of the Choctaws and Chickasaws were compelled to agree to whatever the Government representatives wanted embodied in the new treaty. The chairman of the Government commission submitted to the various tribes seven propositions, which he said must be embodied in the new treaties. The Choctaws and Chickasaws acceded to them all. The third and fifth propositions have a direct bearing on the pending claim. The third proposition was as follows:
The institution of slavery, which has existed among several of the tribes, must be forthwith abolished, and measures taken for the unconditional emancipation of all persons held in bondage, and for their incorporation into the tribes on an equal footing with the original members, or suitably provided for. (Report of Committee on Indian Affairs, 1865, pp. 298, 299.)
The language of the fifth proposition was:
A portion of the lands hitherto owned and occupied by you must be set apart for the friendly tribes in Kansas and elsewhere, on such terms as may be agreed upon by the parties and approved by Government, or such as may be fixed by the Government. (Ib.)
THE UNSIGNED TREATY
The Government commission submitted to the Choctaw and Chickasaw delegates the draft of a proposed treaty, based on the seven propositions. (Choctaw Nation et al. r. U. S., 34 Ct. Cls. 17, 110.) Among other things it authorized the Government to locate other Indian tribes on the leased district in addition to those named in the 1855 treaty. The treaty was approved by the tribal councils, and Commissioner Cooley recognized its existence in his annual report for 1865, wherein he said:
With the Choctaws and Chickasaws a treaty was agreed upon, upon the basis of the seven propositions heretofore stated, and in addition to which those tribes agreed to a thorough and friendly union among their own people, and forgetfulness of past differences; to the opening of the “leased lands” to the settlement of any tribes whom the Government of the United States may desire to place thereon; and to the cession of one-third of their remaining area for the same purpose; the United States to restore these tribes to their rights forfeited by the rebellion. This treaty, after its approval by the councils of the Choctaws and Chickasaws, is to be signed in this city by three delegates from each nation sent here for that purpose. (Report of Committee on Indian Affairs, 1865, p. 36.)
The treaty became known in the literature of the Choctaw and Chickasaw litigation over the leased district as the "unsigned treaty." (Choctaw Nation et al. v. U. S., 34 Ct. Cls. 17, 110-112.) Article 5 thereof enlarged article 9 of the 1855 treaty so as to provide that the "leased district lands might be used for the settlement of "such other tribes or bands of Indians as the Government might desire to locate thereon, without exception or restriction as to the character of the tribes." Said article 5 is as follows:
The Choctaw and Chickasaw tribes agree to a modification of the ninth article of the treaty concluded at the city of Washington, the 22d day of June, A. D. 1855, by which they agree that all that portion of their common territory west of the ninety-eighth degree west longitude, leased to the United States, may be used for the permanent settlement of the Wichita and such other tribes or bands of Indians as the Government may desire to locate thereon, without exception or restriction as to the character of the tribes. (Ib. 110-112.)
In 1866 the unsigned treaty was taken by authorized Choctaw and Chickasaw delegates to Washington, with the understanding that it would be there executed by them and the Government officials, but it was not accepted by the Government. It is true that it was not signed by representatives of the Government and the delegates of the Choctaws and Chickasaws at the Fort Smith conference, but it contained what the representatives of the Government demanded at that conference.
TREATY OF 1866 Following the Fort Smith conference, the Choctaw and Chickasaw delegates went to Washington in January, 1866, to complete the negotiations begun at Fort Smith in 1865. They carried the “unsigned treaty,” which was referred to by Commissioner Cooley in his report for 1865, as follows:
This treaty, after it is approved by the councils of the Choctaws and Chickasaws, was to be signed in the city of Washington by three delegates from each nation, sent for that purpose. (Report of Commission on Indian Affairs, 1865, p. 36.)
The 1866 treaty was executed by representatives of the Choctaws and Chickasaws and the Government on April 28, 1866, at Washington. Article 3, by which the Government insists that the Choctaws and Chickasaws parted with all their right, title, and interest in the leased district, is as follows:
The Choctaws and Chickasaws, in consideration of the sum of $300,000, hereby cede to the l'nited States the territory west of the 98° of west longitude, known as the leased district, provided that the said sum shall be invested and held by the United States, at an interest not less than 5 per cent, in trust for the said nations, until the legislatures of the Choctaw and Chickasaw Nations, respectively, shall have made such laws, rules, and regulations as may be necessary to give all persons of African descent, resident of the said nations at the date of the treaty of Fort Smith, and their descendants, heretofore held in slavery among said nations, all the rights, privileges, and immunities, including the right of suffrage, of citizens of said nations, except in the annuities, moneys, and public domain claimed by, or belonging to, said nations respectively; and also to give to such persons who were residents as aforesaid, and their descendants, 40 acres each of the land of said nations on the same terms as the Choctaws and Chickasaws, to be selected on the survey of said land, after the Choctaws and Chickasaws and Kansas Indians have made their selections as herein provided; and immediately on the enactment of such laws, rules, and regulations, the said sum of $300,000 shall be paid to the said Choctaw and Chickasaw Nations in the proportion of three-fourths to the former, and one-fourth to the latter-less such sum, at the rate of $100 per capita, as shall be sufficient to pay such persons of African descent before referred to as within 90 days after the passage of such laws, rules, and regulations shall elect to remove and actually remove from the said nations, respectively. And should the said laws, rules, and regulations not be made by the legislatures of the said nations, respectively, within two years from the ratification of this treaty, then the said sum of $300,000 shall cease to be held in trust for the said Choctaw and Chickasaw Nations, and be held for the use and benefit of such of said persons of African descent as the l'nited States shall remove from the said territory in such manner as the United States shall deem proper--the l'nited States agreeing, within 90 days from the expiration of the said two years, to remove from said nations all such persons of African descent as may be willing to remove, those remaining or returning after having been removed from said nations to have no benefit of said sum of $300,000, or any part thereof, but shall be upon the same footing as other citizens of the United States in the said nations. (2 Kappler, supra, 919.)
CONTENTION OF CHOCTAWS AND CHICKASAWS
The Choctaws and Chickasaws contend that said article 3 so modified article 9 of the 1855 treaty that the Government by the former article acquired the leased district lands in trust for the purpose of settling thereon not only the Indians named in said article 9 but any other Indian tribe. The latter right was a valuable one to the Government. The Choctaws and Chickasaws also contend that when those lands ceased to be so used the trust terminated and the lands reverted to them. Their further contention is that the lands ceased to be so used when the Government allotted portions of them to the western Indians and opened the remainder to public entry.
THE $300,000 CONSIDERATION
Under said article 3 the Choctaws and Chickasaws were to receive $300,000 only on condition that their respective legislatures should within two years from the ratification of the treaty pass laws giving to each of their former slaves 40 acres of land and conferring upon them full rights of citizenship, excepting an interest in the tribal annuities. The article further provided that, if the legislatures should not pass such laws within two years, the $300,000 would cease to be held in trust for the tribes and would be held for the use and benefit of the freedmen, if they should remove from the nations, and that, if any slave should elect within 90 days after the passage of said laws to remove from the nations, he should be allowed $100 out of the $300,000. If the tribes should not admit their freedmen to citizenship and the freedmen should decline to remove from the nations, the $300,000 was to remain the property of the United States.
There were in 1866 about 8,200 slaves among the Choctaws and Chickasaws. (Choctaw Nation et al. v. U. S. 34 Ct. Cls. 17, 117.) If the slaves had elected to remove the tribes would have received nothing for the cession of the leased district lands, amounting then to about 7,700,000 acres, because payment of $100 to each former slave would have more than exhausted the $300,000. Moreover, if all the slaves had been adopted and had elected to remain they were to receive approximately 328,000 acres of land, which at a low valuation of $1 an acre would have amounted to more than the $300,000. Furthermore, the Government in demanding that the Choctaws and Chickasaws give their former slaves 40 acres of land made greater exactions from the Indians as a penalty for having joined the Confederacy than it made from the white people of the South.
Practically all of the freedmen remained in the two nations and they or their descendants each received land equal in value to 40 acres of average allotable land when the Choctaws and Chickasaws allotted their lands under the Atoka and supplementary agreements. Furthermore, the lands which the negros allotted were not in the leased district domain, but in the Choctaw and Chickasaw Nations, east of the ninety-eighth meridian. In other words, the freedmen or their descendants received the same kind of lands which the Choctaws and Chickasaws received.
The approved tribal rolls show that 10,691 freedmen received allotments. A freedman allotment was worth, for allotment purposes, $120. Therefore, the freedmen received allotments worth about $1,282,000.
It should be said that the Chickasaws never adopted their freedmen and that the two tribes recovered about $606,000 as the value of lands allotted to the Chickasaw freedmen. Deducting this amount from the $1,282,000, the net value of lands allotted to the Choctaw and Chickasaw freedmen amounted to about $676,000.
TRIBES RECEIVED NOTHING FOR
LEASED DISTRICT LAND
The first clause of said article 3, taken alone, imports a cession of the leased district for a consideration of $300,000, but when the entire article is analyzed, it is clear that the $300,000 did not enter into the consideration for the cession, but was to be paid the tribes for the granting of 40 acres of land and of citizenship to their freedmen. In the final analysis, the Choctaws and Chickasaws received nothing for the leased district lands, because the value of the lands finally allotted to their former slaves exceeded the $300,000 by approximately $376,000, but it should be remembered that the United States by said article 3 acquired title to those lands. However, assuming that the Choctaws and Chickasaws received the entire $300,000, the Government acquired title to approximately 7,700,000 acres of land for the $300,000, or not quite 4 cents an acre. It is impossible to believe that the Choctaws and Chickasaws could have intended to part with title to that vast tract of land for less than 4 cents per acre. The Government can not afford to seriously contend that it, as guardian, deliberately took these lands from the Indians, its wards, and paid them not quite 4 cents an acre.
The contention of the tribes is more reasonable, namely, that both parties intended to so modify the lease of 1855 as to permit the Government to further hold such lands in trust for colonizing wild Indians until the Government should allot them to such Indians and sell the residue, whereupon the Choctaws and Chickasaws became entitled to the amount received for such residue, deducting the expenses of survey and sale..
WILD INDIANS ACTUALLY SETTLED
Carrying out the purpose of the lease of 1855, as modified by the treaty of 1866, the Government located western Indians on the leased district area as follows: In 1867, the Kiowas, Comanches, and Apaches; in 1868, the Wichitas and affiliated bands; and in 1869, the Cheyennes and Arapahoes. (S. Doc. No. 146, 56th Cong., 1st sess.) No Indians were located in Greer County, because at that time its ownership was in dispute between the State of Texas and the United States.
TREATIES WITH CHEROKEES, CREEKS, AND SEMINOLES Beginning with its first treaties with the Five Civilized Tribes before they came to Indian Territory the Government's dealings with them have been practically the same. After ceding their lands east of the Mississippi River to the United States they moved to the Indian Territory
1866 TREATY WITH FIVE TRIBES
In 1866 the Government made another series of treaties with them, having the same purpose, namely, the cession of portions of their western lands to the Government for colonizing wild Indians thereon. (S. Doc. 146, 56th Cong., 1st sess.) In his report for 1866 Commis
, ., sioner Cooley said that, in the Fort Smith negotiations with the Five Civilized Tribes it was agreed that in the new treaties there should be "cessions of lands by the several tribes, to be used for the settlement thereon of Indians whom it is in contemplation to remove from Kansas." (Report of Committee on Indian Affairs, 1865, p. 8.) The language of the several treaties, making these cessions, is practically identical.
AND CHICKASAW TREATIES CONTRASTED WITH
SEMINOLE, AND CHEROKEE TREATIES
Article 3 of the Choctaw and Chickasaw treaty of 1866 uses the word “cede. Article 3 of the 1866 treaties with the Creeks and Seminoles uses the words: "In compliance with the desire of the United States to locate other Indians and freedmen thereon,” the Creeks and Seminoles "hereby cede and convey to the United States." (2 Kappler, Laws and Treaties, 933.)
By article 16 of the 1866 Cherokee treaty the Government agreed to purchase from the Cherokees for the settlement of friendly Indians portions of their western lands west of the ninety-sixth meridian at such price as might be agreed upon between the friendly Indians and the Cherokees. If the Indians could not agree, the price was to be
. fixed by the President.