Grant Foreman • The Five Civilized Tribes

The continued interference by the secretary of war in the affairs of the tribe, preventing a government by majority, finally impelled Congress to take notice of the situation; and the committee on Indian affairs of the House made an investigation of the matters presented by the various memorials and reports referred to them.⁠1 Testimony was taken and an exhaustive report⁠2 was prepared with recommendations; the substance of the finding was that the war department had pursued a vicious and dangerous course in the Cherokee country, keeping alive the rancor and unrest in that nation instead of allaying it.

At one stage the report said, the department had announced that majority rule should control, but when the factions had finally united so that four‑fifths of the tribe had committed themselves in favor of a new government, had elected John Ross chief and the situation was in a fair way to produce the peace so much desired, at the instance of the remaining one‑fifth and General Arbuckle who was moved by bitter animosity against Ross, the department reversed its position, and issued an order purporting to nullify the action of the nation in adopting and putting in operation the constitution, and put the whole Cherokee Nation under the military control of General Arbuckle. This for reasons assigned, that reports had been received that the majority had been guilty of tyrannical and oppressive acts toward the minority. And this in the face of reports from the constituted representatives of the government p312 on the ground, Superintendent Armstrong and Governor Stokes, that the great majority of the tribe had adopted the new constitution and that peace at last was in sight.

"instead of the arrival of the period which called for the active interference of the Government to protect the Cherokee from 'domestic strife,' the committee recognize in the order of the secretary of war of the 6th of March, a revival of the practice of government interference in the internal affairs of the Cherokees which had recently been suspended; and, instead of an interference of the Government for the prevention of domestic strife, the order of the 6th of March ushered in a period of unrest, dissension and anarchy, by the undisguised attempt to control a majority of four‑fifths of the Cherokee Nation, and compel them to yield obedience to a government dictated by the wishes and interests of the remaining one‑fifth."

The sum of $800,000 was due the emigrant Cherokee on their arrival in the West to pay for spoliation and abandoned improvements, and to enable them to establish themselves in their new home; but the administration at Washington in furtherance of plans advocated by General Arbuckle and the small body of recalcitrant Treaty and Old Settler factions, decided to withhold payment of these funds of which they were in desperate need, until such time as they should agree to abandon the government recently set up by them and acknowledge the rule of the Old Settlers as the only valid government in the Cherokee Nation. The report continued: "The Committee are reluctantly compelled to believe, that upon no better or higher suggestions than the hope of operating upon the necessities and avarice of the Indians has the Executive of the United States been influenced in withholding the large sums of money long since due by treaty."

The report held that interference by the Executive in the affairs of the Cherokee Indians by prescribing any particular form of government or interdicting any system of laws already adopted by the majority, was unconstitutional and that the exercise of such power through military authority was dangerous to the peace of the country, and was an abandonment of the long established policy of the Government which, if persisted in, would probably lead to disorder and war; that the peace and security of the western frontier could be maintained only by justice p313 and good faith of the Government toward the large and wealthy tribes recently removed there.

In the latter part of August, 1840, John Ross and John Howard Payne left Washington for the Indian Territory. Others in the party were Lewis Ross, Elijah Hicks, John Looney, Archibald Campbell, and J. Parker Ridgeway. Going by way of New Orleans where they arrived about the middle of September, they proceeded up the Arkansas River and reached Park Hill in the Cherokee Nation in the early part of October.

The Cherokee council under the new constitution was to hold its first session in the autumn of 1840 and Ross's return was so timed that he would be present to report on his negotiations in Washington. Payne had secured from the war department a passport permitting him to visit in the Cherokee Nation so that he could continue his study of the Indians with a view to writing their history. He spent four months at Park Hill and wrote a series of articles for eastern newspapers describing conditions in the Indian country and the difficulties in the Cherokee tribe. What took place at that session of the new Cherokee council is best related in the words of this eye witness:

"From the reports of the feverish state of this country, which prevailed not long ago, I presume you will not be reluctant to learn its real condition. Being upon the spot, I will acquaint you with what I have myself observed. But, to make my story plain, I shall have to revert to what passed a few months preceding my arrival.

"Sometime last summer, I understand, a meeting of leading men among the Cherokees was called at Fort Gibson by General Arbuckle. The real object was, by many, conjectured to be this: to obtain some expression of acquiescence in a declaration by Government agents that the lately adopted act of union, constitution, laws and rulers of the Cherokees, were not the people's choice, but forced upon them by certain ambitious demagogues among the late emigrants from the East who had usurpingly excluded the old settlers from the Councils and power of the Nation; inasmuch as, although these last were nominally eligible to more than a fair participation in the public offices and representation, the arrangement was rendered nugatory by intrigues which had only permitted the admission of those who were previously ascertained to be friendly to the cause of John Ross.

p314 "The convention thus called by General Arbuckle to set all right, came to the following conclusion:

"They would not venture to disturb the decision regarding the Act of Union between the Eastern and Western Cherokees and the Constitution and Laws which followed it. Upon these the people's will had been so unequivocally spoken that it would be dangerous to thwart it. These must stand; so must all the elections under them, of that portion of the public officers which had been chosen from among the new emigrants, the Principal Chief included. But to prevent cavil, it was suggested (and, I think, by the Ross party) that, if those public functionaries who had been already chosen from among the old settlers would tender their resignation, that part of the Convention consisting exclusively of the party of old settlers might nominate substitutes, provided such a measure would be regarded as extinguishing all objections and as finally composing the troubles of the Nation. On this being agreed to, I learn that the functionaries in question immediately resigned, and substitutes were chosen by the part of the Convention formed of old settlers.

"The first annual National Council following this compromise had already commenced its session, when John Ross returned from Washington with the delegation. Among the members of the new Council were the most prominent of those called the "Treaty Party," who memorialized Congress against John Ross last session. Upon hearing of the Chief's arrival, runners were sent to gather the Nation at the Council Ground, that the measures of their embassy and the communications of their Chief might be presented without delay for the opinion of the entire people.

"In the last week of October the people had all assembled, and the message of their Chief, after being presented to the Committee (Senate) and the Council (Representatives) was ordered to be produced before them. John Ross accordingly appeared at a sort of rustic forum set up in the open square, with the written message in his hand, which he read, sentence by sentence, in English, pausing at every period for an interpreter, who stood by his side to repeat his words, in Cherokee, to the multitude. The Chief, I am told, could always very readily do this himself, but the people here, on such occasions, like the citizens of London in the time of Richard the Third, are, as Shakespeare says, 'used to be spoken to only through the Recorder.' The Cherokee custom probably arose from the desire to show that there were no alterations or suppressions in the public p315 documents, so few of which — owing to the Indian relations with the United States — can be originally expressed in their own language.

"The message was long, but perfectly temperate throughout. It commended the people for having shown so much moderation under their trials, and for having displayed their unanimity in a manner so unquestionable, as must entirely destroy the misconception under which the United States continue to withhold their dues. The Chief explained that the Delegation to Washington had failed in all its of objects, because the Government there had been taught to consider the Cherokee nation as disunited; but he exhorted them not to lose patience, for the truth concerning them must speedily be known; and, doubtless, as soon as it should be so, the declaration of the Secretary of War that the voice of the majority would be respected in his dealings with their country must be acted upon; and they asked no more. He urged their attention to the subject of education, for which the Nation had ample funds in the hands of the President that had never been brought into use, although complaints arose on every side of the want of schools. He referred to the numerous subjects which still called loudly for an adjustment with the United States; and among them, the unsettled claim for the balance of the Emigration expenses, that so many of the people are interested in so deeply. He exhorted them not to suffer the inconveniences of this delay to weaken their confidence in ultimate justice from the Executive at Washington, but to continue more scrupulously observant than ever of all their treaty obligations, as the surest means of securing a punctilious regard for their own rights in return. He reminded the people, incidentally, that he himself was only interested in the Emigration claim in common with them — having enrolled himself, like the rest; and that he and his family had made the journey under a conductor of his own appointment, and without being in any way a sharer in the emoluments; for although superintendent of the whole, he freely gave the Nation both his time and services. He also mentioned that the disregard of all their claims by the United States Government at Washington might have been yet more injurious, had he not demanded, under a protest, the proceeds of a partial valuation of improvements taken from him in their late country, and thus obtained means to discharge the expenses of the National Delegation.

"The multitude appeared highly pleased with the Principal Chief's address. It was followed by speeches among them, and the whole wound up with a series of resolutions which were adopted unanimously and enthusiastically. p316 They expressed the delight of the Cherokees that the Secretary of War had declared that he would regard the will of their majority in dealing with them; they avowed their desire to accommodate themselves, as far as possible, to the wishes of the United States Executive, and that they would prove it by waiving their own inclinations to any extent short of a sacrifice of the right of self-government and of the rulers of their choice, which nothing could induce them to abandon. They instructed their committee and council (Senate and Representatives) to carry out this principle and to convey their expression of it, through Gen. Arbuckle to the War Department.

"This last measure has already, I understand, been taken. The Gen. answered the Council very courteously, but reiterated the purpose of the Secretary of War not to recognize John Ross as Principal Chief and William S. Coodey as President of the National Committee. This indiscretion would, I have reason to think, have disturbed the progress of goodwill, had it not been for the discovery of qualified expressions in sentences of the General's letter, whence it might be inferred that when the entire truth came to be known at Washington, the policy there would change; so the proposed argument with the General was abandoned, and the Council closed its session, leaving the people under a strong expectation of better times ere long.

"A delegation was appointed by this National Council to visit Washington on the general business of the country. It consists of John Ross, John Benge, and David Vann. Resolutions were also passed approving the course of John Ross in reference to the emigration claim, and directing him to pursue it to a final settlement. The resolutions go at large into a statement of this claim, which may be summed up as follows: For the expenses of subsistence, horse and wagon hire, physicians and physic, ferries and steam boats, and all the endless et ceteras. General Scott had agreed with the Nation that the United States would pay at the rate of a fraction above eighty-two cents per day per head. Soap was to be paid for extra at fifteen cents a pound. It was supposed that the emigration could be brought within eighty days, but no time could be covenanted for; and, owing to a prevailing drought, and fatal sickness, when it had begun, the General himself ordered a halt; so that, the journey thus covering several weeks more than was expected, the account of its expenses became augmented in proportion. It is from this augmentation that misconceptions have p317 arisen, which will doubtless be properly removed, and with them this deep source of discord and distress among the Cherokees.

"And now, gentlemen, it really appears to me, as I trust it will to you, that the various mistakes which have so long embarrassed the Cherokee question are so nearly disentangled that we have a right at length to look for, as the British Alderman so gravely said in his toast, 'a speedy peace and soon.' "⁠3

Payne wrote other accounts for the New York Journal of Commerce describing the sessions of the Cherokee Council at Tahlequah; and showed how the large gathering of Indians was striving earnestly to achieve a peaceful settlement of their difficulties; but at the same time affirmed in well chosen words their prerogative as a people to govern themselves under a system providing for majority rule and adhered to their right to select a chief of their choice by majority vote. While never disrespectful to the authorities at Washington they made it clear that the efforts of the war department to interfere with their domestic affairs and upset the action of the majority was a violation of their rights under their treaties, and that the secretary was dealing with men quite as capable as he of judging of their rights and defending them in debate.

Payne's letters were detailed and threw a strong light on the situation that helps to visualize the tyranny the secretary of war sought to impose upon them. Shortly after the cruel massacre of Boudinot and Ridge, Evan Jones, the venerable missionary, wrote a number of letters to Payne which have been preserved and help to illuminate the situation. Jones's language was less restrained than Payne's and he expressed the opinion that Ridge and Boudinot had been killed because of their interference with the efforts of the immigrant Cherokee to set up a government. He charged that Ridge advised the western chiefs not to come to an agreement with recent arrivals and as a result their first conference broke up in failure.⁠4

"Threats have been made by some of the last remains of the Treaty party," said Mr. Payne, "that John Ross shall never reach Washington, but it is likely enough you will hear of him there soon after the new p318 year."⁠5 In company with the delegation in February, 1841, Payne left Park Hill for Washington where they arrived on the twenty-first. There the delegation had the benefit of Payne's study of their situation, and his advice.

A new day seemed to be dawning for the Cherokee Nation. After President Harrison's brief incumbency, John Tyler became president on April 4, 1841. Gen. Matthew Arbuckle was ordered from Fort Gibson to an obscure post at Baton Rouge, to the indignation of his friends in Arkansas and the Indian Territory. He was undoubtedly a conscientious officer and executive but his prejudice and vindictiveness had carried him to unreasonable and unnecessary lengths in opposing John Ross and his undertakings. Ross was probably the most talented man in the Indian Territory and his ability and success in his controversies with Arbuckle had earned the bitter animosity of the latter who pursued injudicious and harmful efforts at reprisal. There was not room in the Indian Territory for two men of their conflicting views and influence, and Arbuckle had to go.

Payne was employed by the secretary of war to study the so‑called Cherokee Treaty of 1835 and report his views concerning the claims of the Cherokee Indians and the obligations of the Government growing out of the treaty. He prepared an interesting memorandum⁠6 based on his observations of the Indians, their proceedings and arguments in council, and statements made in his presence.

The Cherokee people had claims against the Government growing out of their enforced removal; and the failure to adjust these as promised, kept them in state of dissatisfaction and rancor. A new treaty was much desired by them and Mr. Payne gave several reasons why it should be entered into. There were but few who would acknowledge the compact maneuvered by the Reverend Schermerhorn in 1835. The Cherokee people would not have moved except by force, said Mr. Payne, if the validity of that so‑called treaty had not been waived; and they had since felt that that document would be superseded by a genuine treaty, which he urged, was the only means by which the p319 honor of the Government could be purged of the stain resting upon it.

"Conditions have changed fundamentally since the 'treaty' of 1835 was made so that many new problems had arisen to demand adjustment. A new treaty would restore the Government in the confidence of the Cherokee people whose favorable influence with the wild Indians was worth having." In the third place, he said, the Cherokee had "a man [John Ross] at their head, of great energy, untiring perseverance, and far reaching views. By strengthening him with his people and with his neighbors, we enable him to carry out plans of civilization and improvement vastly important in their future action upon our Indian relations; and which there appears no other person among all the tribes equally competent with him to manage. He has thus far kept his people quiet by assuring them that they may rely upon the ultimate justice of the United States. The time has come when that assurance can be fulfilled. If it is not, John Ross will be regarded by the Cherokee as their deluder; his sway over them will be lost; and should this misfortune arrive, we may look for long and costly problems, to which the Seminole war will be a bagatelle."

The Cherokee people themselves felt that a new treaty was necessary, said Mr. Payne, because

"they have been captured; an act of war has been committed against them without any provocation but that of desiring their property; and under that capture, they have been removed to a new and strange region. To atone for this wrong, and to avert resistance, they have been promised payment for what has been taken from them; with security in the place whither they are removed. Neither of these promises are [sic] yet kept. Swarms of persons have claims which we have never answered. Although large sums of money have been appropriated, no one seems to know what has become of it. The country east of the Mississippi yet remains unpaid for. In the country west of the Mississippi — although nominally theirs in return for former cessions of territory long prior to the removal thither of the entire nation, they are no safer now than they were in the region whence they have just been ejected. They feel that the miseries so lately endured, may, at any moment, be brought back upon them. That this apprehension is no chimera, is evident from some of the debates in Congress"

where it was asserted that there was no constitutional guarantee of the title of the Cherokee Nation in the lands occupied by it. The Cherokee people desired this point satisfied p320 by a treaty and grant of their lands. If the Cherokee were secured in this boon, said Mr. Payne,

"the foundations would be firmly laid of perpetual peace and good will between the red man and the white. But the longer a legal guarantee to this effect is omitted or delayed, the more distrustful will this people become of our sincerity. . . . They have been kept so long in suspense, that, whatever their fate is to be, they desire to know at once. They will look upon further silence as confirmatory of their worst doubts; as mere craft and evasion. Hope deferred, which makes the civilized man sick, makes the less civilized ferocious. Under these circumstances, they do not feel secure in opening farms, in building houses, in establishing schools nor churches; for ere these are half finished, they may be captured again."

The Author's Notes:

2 The committee on Indian affairs to which these matters were referred, prepared a report which according to John Bell of Tennessee, a member, was adopted by a majority of the committee but the House refused to permit it to be filed. Bell gave it to the press on July 27, 1840, and it became known as Bell's Suppressed Report.

4 Evan Jones to John Howard Payne July 22, 1839, Ayer Collection, Newberry Library.

5 Payne wrote a long letter that appeared in the New York Journal of Commerce, January 22, 1841; he described the meetings of the Cherokee council, quoted speeches delivered, and resolutions adopted there.

6 Memoranda by John Howard Payne, Washington City, Saturday, July 10, 1841, Ethan Allen Hitchcock Manuscript Collection, Library of Congress.

[ Cherokee ]

p311 Chapter twenty-three
John Howard Payne's Description

The Author's Notes:

[ Cherokee ]

p311 Chapter twenty-three John Howard Payne's Description

The Author's Notes:

p311 Chapter twenty-three
John Howard Payne's Description