Statement of Hon. Clarence B. Miller, Representative From Minnesota

Mr. Miller. All the bills that have been introduced on the subject of the Mississippi Choctaws, among them being the one now under consideration (H. R. 19213), looked to the treaty of 1830, between the Choctaws and the United States, as a basis for all Mississippi Choctaw rights. A thorough understanding of the rights involved requires, however, that we pay attention to an earlier treaty, and a most important one, the treaty of 1820. During the time the territory involved was under the jurisdiction of Great Britain several arrangements that were looked upon as treaties were made between the King of Great Britain and the Choctaw Nation. These, however, are unimportant, as also were the subsequent treaties between the Choctaw Nation and the United States up to the treaty of 1820. In 1820 we find the Choctaw Nation occupying approximately 14,250,000 acres in what is now the State of Mississippi, a small part, however, extending into Louisiana.

In 1820 the United States desired to have as many Indians as possible removed west of the Mississippi, and it then negotiated treaties with these Choctaw Indians looking to their removal. By the terms of that treaty the Choctaw Nation ceded to the United States about 4,000,000 acres of their land in Mississippi, as consideration for which and in part payment thereof the United States ceded to the Choctaws a tract of land west of the Mississippi River, roughly bounded on the north by the Arkansas and its main branch, the Canadian River, extending west to the source of the Canadian River, should that source be found to be within the territory of the United States, and if without such territory, then to the limits of the territory of the United States; on the south by the Red River: and on the east by a line that included a small part of what is now the western part of Arkansas. This comprises all the land that the Choctaws or Chickasaws ever secured west of the Mississippi River and which they have since occupied. Parts of this ground were lost by later treaties, the Indians ceding parts to the United States.

An inspection of this treaty discloses that it was not contemplated by the parties that all of the Choctaws should remove west, or even that the greater part of them should remove. In fact, it clearly appeal’s that it was contemplated that only a relatively small part would remove west, the main part remaining on their diminished reservation, now consisting of a little over 10,000,000 acres in Mississippi.

The pertinent sections of that treaty to the present inquiry are the following:

Article 1. To enable the President of the United States to carry into effect the above grand and humane objects, the mingoes, head men, and warriors of the Choctaw Nation, in full council assembled, in behalf of themselves and the said nation, do by these presents cede to the United States of America all the land lying and being within the boundaries following to wit: Beginning on the Choctaw boundary east of Pearl River, at a point due south of the White Oak Spring on the old Indian path; thence north to said spring: thence northwardly to a black oak standing on the Natchez road, about 40 poles eastwardly from Doake’s fence, marked A. J. and blazed, with two large pines and a black oak standing near there to and marked as pointers; thence a straight line to the head of Black Creek, or Bouge Loosa; thence down Black Creek or Bouge Loosa to a small lake; thence a direct course so as to strive the Mississippi 1 mile below the mouth of the Arkansas River; thence down the Mississippi to our boundary; thence around and along the same to the beginning.

Article 2. For and in consideration of the foregoing cession on the part of the Choctaw Nation, and in part satisfaction for the same, the commissioners of the United States, in behalf of said States, do hereby cede to said nation a tract of country west of the Mississippi River, situate between the Arkansas and Red Rivers, and bounded as follows: Beginning on the Arkansas River where the lower boundary line of the Cherokees strikes the same; thence up the Arkansas to the Canadian Fork, and up the same to its source; thence due south to the Red River; thence down Red River 3 miles below the mouth of Little River, which empties itself into Red River on the north side; thence a direct line to the beginning.

Article 4. The boundaries hereby established between the Choctaw Indians and the United States on this side of the Mississippi River shall remain without alteration until the period at which said nation shall become so civilized and enlightened as to be made citizens of the United States, and Congress shall lay off a limited parcel of land for the benefit of each family or individual in the nation.

Article 5. For the purpose of aiding and assisting the poor Indians who wish to remove to the country hereby ceded on the part of the United States, and to enable them to do well and support their families, the commissioners of the United States engage, in behalf of said States, to give to each warrior a blanket, kettle, rifle gun, bullet molds and nippers, and ammunition sufficient for hunting and defense for one year. Said warrior shall also be supplied with corn to support him and his family for the same period and whilst traveling to the country above ceded to the Choctaw Nation.

Article 6. The commissioners of the United States further covenant and agree, on the part of said States, that an agent shall be appointed in due time for the benefit of the Choctaw Indians who may be permanently settled in the country ceded to them beyond the Mississippi River, and at a convenient period a factor shall be sent there with goods to supply their wants. A blacksmith shall also be settled amongst them, at a point most convenient to the population, and a faithful person appointed whose duty it shall be to use every reasonable exertion to collect all the wandering Indians belonging to the Choctaw Nation upon the land hereby provided for their permanent settlement.

Article 7. Out of the lands ceded by the Choctaw Nation to the United States the commissioners aforesaid, in behalf of said States, further covenant and agree that 54 sections of 1 mile square shall be laid out in good land by the President of the United States and sold, for the purpose of raising a fund to be applied to the support of the Choctaw schools on both sides of the Mississippi River. Three-fourths of said fund shall he appropriated for the benefit of the schools here, and the remainder fourth for the establishment of one or more beyond the Mississippi the whole to be placed in the hands of the President of the United States and to be applied by him expressly and exclusively, to this valuable object.

Article 4 provides that the boundaries established by this treaty for the lands in Mississippi shall remain without alteration; that is the Indians shall retain their 10,000,000 acres intact until such time as the Indians shall become so civilized and enlightened as to be made citizens of the United States. It then contemplates that Congress shall allot to each family a portion of this territory.

Article 5 provides something for the removal of those who are to go west. It appears to contemplate that the poor Indians are the ones likely to remove, and provision is made to give each of these Indians a few things that may help him to make the journey.

Article 6 makes provision for organization of Federal aid to the Indians who remove beyond the Mississippi River, providing, as it does, for the establishment of an agent there, also a blacksmith and other officers.

Article 7 contemplates that lands shall be sold, specifying the lands, the proceeds from which are to be used for the support of Choctaw schools on both sides of the Mississippi, three-fourths of the fund to be expended for the benefit of schools east of the Mississippi River and one-fourth for the benefit of those west of the Mississippi River. If this can be taken as a basis of what was then contemplated by the parties should be the respective portions of the Indians residing east and west, it would show that three-fourths were expected to remain in Mississippi and one-fourth to remove west. In 1825 the United States Government, desiring to secure a strip of land forming the eastern extremity of the lands ceded to the Choctaw Indians west of the Mississippi River, entered into a treaty with that nation by which all of that ceded territory which is now within the State of Arkansas was ceded to the United States Government. Since that time the western boundary of Arkansas has been the eastern boundary of this Indian country west of the Mississippi River.

During this period a rapid development in the Southwest has taken place. The United States had secured Florida, which then extended clear up practically to the Mississippi River. It was trying to remove, and had removed westward, many of the Seminoles who were removed to a section of territory near to that ceded to the Choctaws west of the Mississippi River. Whites were pressing into the Southwest. After the Louisiana Purchase of 1803 the Southwest region had become generally known to people in the East, and immigrants were pouring in that direction rapidly. As a consequence of this influx of white settlers there was a desire on the part of the United States, responding to the wishes of these settlers, to remove all of the Indians West of the Mississippi River. The State of Mississippi desired to relieve itself of the Indians within its borders. Consequently, the Government undertook a treaty with the Choctaw Nation looking to a cession of all their Mississippi lands. The negotiations for this proceeded for many years without any success, the Indians, obstinately and with complete accord and determination, refusing to give up their Mississippi lands or to remove west. Finally, in the extremity of the situation, one of the Indian leaders, whose name was Greenwood Le Flore, came to the United States commissioners and said if they would let him formulate a new paragraph in the treaty’ he could get the whole ratified within a very few hours. They asked him what his paragraph was. He thereupon suggested, and there was written, what became paragraph 14, or article 14, of the treaty of 1830.

This article is as follows:

Each Choctaw head of a family, being desirous to remain and become a citizen of the States, shall be permitted to do so by signifying his intention to the agent within six months from the ratification of this treaty, and he or she shall thereupon be entitled to a reservation of one section of 640 acres of land, to be bounded by sectional lines of survey; in like manner, shall be entitled to one-half that quantity for each unmarried child which is of age and a quarter section to such child as may be under 10 years of age, to adjoin the location of the parent. If they reside upon said lands, intending to become citizens of the States, for five years after the ratification of this treaty, in that case a grant in fee simple shall issue. Said reservation shall include the present improvement of the head of the family, or a portion of it. Persons who claim under this article shall not lose the privileges of a Choctaw citizen, but if they ever remove are not to be entitled to any portion of the Choctaw annuity.

After the insertion of this article the treaty was quickly ratified by the Indians, and was finally approved September 27, 1830, and thus became the basis of the rights of the Choctaw Nation. This article is the important one of the treaty. It provides that any Choctaw Indian who desires to remain in Mississippi and not remove west can elect to do so within six months; by making application so stating his desire to remain he shall be entitled to receive 640 acres as head of his family; each adult member of his family-or, rather, each person over 10 years of age unmarried-to receive 320 acres and each child under 10 years 160 acres. After a continuous residence upon such selected tracts for a period of five years patent in fee was to issue. Further, and especially, it provides that any such Indian electing to remain in Mississippi shall not lose his Choctaw citizenship; the only thing he ever will lose is his right to share in the annuities coming from the Government to the Choctaw Nation, and these he will lose only if he removes from his then Mississippi home west of the Mississippi River.

Just what these annuities consisted in, their source and amount, have not been ascertained at the present time with definiteness. At my request the Secretary of the Interior is making a thorough investigation, and subsequently he will report all the information obtainable by his office on this point. The only annuity that I can find that must have been contemplated by the Indians and the Government was an annuity of $20,000, payable under the terms of this treaty of 1830 for a period of 20 years thereafter. At all events, it seems to be generally agreed by both parties to the treaty and by all who have commented upon the treaty since, that the amount of these annuities was small-in fact, so small as not to be of serious consideration.

It must thus be clearly understood that those Indians who elected to remain in Mississippi continued to be Choctaw citizens, with all of the rights possessed by Choctaw citizens anywhere.

At this point it may be well to observe that while the Choctaw Nation has made many treaties subsequent to the treaty of 1830 with the United States Government, when those treaties were made the great bulk of the Choctaws had removed west of the Mississippi River-not all on the lands ceded to them by the treaty of 1820, some of them being scattered in other sections; but the great majority were west of the river, and the treaties were really between the representatives of the western Choctaws and the United States; in fact, there is not to be found any evidence that the Mississippi Choctaws remaining east of the river since 1830 have ever made any kind of an agreement or been a party to any kind of an agreement with the United States Government. They were in the nature of individuals outside who were not directly consulted in the making of the subsequent treaties, although many provisions in these treaties were for their benefit.

By the terms of this treaty of 1830 the Choctaw Nation ceded to the United States Government all their remaining lands east of the river. These lands comprised about 10.200.000 acres. After these heads of families who had elected to remain east of the river should receive their respective allotments or tracts of land, becoming theirs by patents in fee after a residence of five years, the remainder should be entirely the property of the United States, and no longer should there be Indian territory in Mississippi.

Nowhere in this treaty was there any consideration mentioned as passing from the United States to the Indians for this last cession of their 10,000.000 acres. It was undoubtedly contemplated by the United States Government to remove all the Choctaws west of the river. The object in negotiating the treaty, in the first place, was to get them all west of the river. The provision allowing certain ones to remain east of the river had only been inserted to secure an addition of the general treaty. Apparently they had no idea of the number who would elect to remain and take advantage of article 14. At all events, nothing was done by the United States Government to enable those who desired to make application to remain east of the river until the following spring. At this time the Indian affairs of the country were under the jurisdiction of the War Department and officers of the Army were generally Indian agents. The Indian agent for this region in Mississippi was Col. William Ward.

On May 21, 1831, the Indian Office forwarded to Col. Ward instructions to receive applications from Choctaws who desired to elect under article 14. His instructions were as follows:

You will he careful in keeping a register of the reservations taken under the fourteenth article of the treaty, a fair copy of which to be made, duly certified and transmitted for the information of the department.

This is the official instruction and the only one that can be found. It has been said-or surmised, perhaps, would be a better term that, apart from this official instruction of Col. Ward, was a secret instruction, not made public, to the effect that he should get as many Indians as possible to remove west; and in doing that, of course, prevent, as far as possible, the Indians from availing themselves of the provisions of article 14. At all events the testimony of all parties who have investigated the acts of Col. Ward is unanimous respecting his conduct. He certainly did everything in his power to prevent Choctaw Indians from remaining in Mississippi. It is to be understood that the Indians had six months from and after September 27, 1830, in which to make their application. There was no way in which they could make their applications prior to the latter part of May 1831. No applications were permitted to be made after the latter part of August 1831. The register which Col. Ward prepared shows that the first application was registered April 18, 1831; the last August 23, 1831: and his certificate is of date August 24, 1831; thus not longer than four months did the Indians have in which to make application.

The Indians began to come in large numbers to make their applications. Apparently the number was vastly greater than had been anticipated or was desired. They were treated in an outrageous manner by Col. Ward. He often angrily drove them from his presence. He either started or at least sanctioned the circulation among the Indians of stories that those who remained would be subjected to persecution by the whites, and would even lose their children. To an Indian his child is his dearest possession. He may not think much of his father or his mother and have no regard whatever for his grandfather or grandmother, but he thinks everything of his child. This would strike terror to an Indian if anything on earth would. These Indians were, of course, unlettered, and while they have been called civilized, the term can hardly be applied to them without being given a very liberal interpretation. They could not speak English and, after Indian fashion, conveyed their ideas symbolically. For instance, a common method of making application by the head of a family would be for such head to appear before Col. Ward with a bundle of sticks-one long stick representing himself; somewhat shorter sticks representing the members of his family above the age of 10: then some little short sticks representing the children under 10. The colonel generally received these sticks and promptly made bonfires of them.

It was of course, expected that he would keep a record of the names of the applicants and the members of their family for whom application was made. It seems that something like a list was kept. It was kept on loose sheets of legal-cap paper. It was not found for some time afterwards, and when found many pages were gone; and the testimony of those present showed that the missing pages were probably those the colonel had used as shaving paper. It seems that a large number of the sheets of this list were used for that purpose. It further appears that Col. Ward was often intoxicated, and at such times was exceedingly harsh and abusive to the Indians. In short, his treatment probably forms as bad a chapter as can be found anywhere in the history of Indian affairs since the whites settled America.

The Choctaws were not hostile to the Whites, had never made War against the Whites, but had been the staunch friends of the whites. They had remained sturdy when a general Indian uprising had been fomented by certain Indian tribes a few years after the Revolutionary War. Upward of 2,000 Choctaw Warriors are said to have marched under Andrew Jackson and fought at the Battle of New Orleans. There certainly was no stigma to be cast upon the Indians because they chose to remain in Mississippi, where had been the homes of their fathers, and where their other ancestors were buried. Under the treaty of 1830 they had an absolute right to elect to remain if they saw fit and, in fact, would not have made that treaty had this opportunity not been accorded them. Therefore it seems to me that the treatment extended to these Indians by Col. Ward at this time was such as to require that most careful attention he given to any rights that can clearly be ascertained in favor of these Indians who were at that time defrauded.

In 1837, and again in 1842, investigations were had of the conduct of Col. Ward. These investigations were rather extensive, and reports thereof were duly filed. It is from these reports that the foregoing statements have been made respecting the conduct of Col. Ward.

A Government agent, Mr. George W. Martin, under date of September 11, 1833, made a report to the department respecting the condition found among the Choctaws in Mississippi, as far as the fourteenth article claimants were concerned. In this report he said:

I am much disappointed in not being able to secure such copies and information as seems to have been anticipated by the department. Col. Ward says there are no entire and perfect copies of the registers and reservations retained here, and advised me to apply to the department. I shall secure such papers here as may enable me to proceed in the locating but I am certain the work can not be done in a complete and perfect manner unless I am furnished with a more full register as the one here is incomplete.

Again, under date of October 3, 1833 this same agent made a report to Andrew Jackson, then President of the United States, in which he said:

I am progressing with the business by means of the register obtained from Col. Ward, but it is probable there are many names omitted on this register which are entitled to land agreeably to the register or list of reserves forwarded to the War Department by Mr. Armstrong. Such was the opinion of Mr. William Armstrong, who was present at the time I applied for and received the register on which I am now acting, which I adverted to in my communication to you of the 11th ultimo.

Again, under date of December 20, 1834, the Government agent reported to the War Department in the following language:

In obedience to instructions, I have caused all the testimony offered lo be taken in writing, under oath, and in due form of law. A list of the names of the witnesses is annexed to this report, and copies of the depositions themselves are herewith transmitted, the originals being retained for the use of this office. The instructions require that I should report the facts and circumstances submitted to me. By a reference to the papers it will be seen that the depositions establish the following facts, viz:

First. That within the time limited by the treaty for registration, on one occasion a number of Indians, then living on Suckenatchie and some of them living yet on the same, did actually go forward to the agent, then at the Old Factory, for this and other purposes, and did not only offer their names for registration, but their names were duly and formally entered down in a book opened for that purpose: nevertheless, a few, if any, of the names then and at that place taken down, are now to be found in the agent’s book in my possession. The conclusion is inevitably that the small book or sheet of paper on which their names were entered has been either lost by the agent or destroyed by those who might possibly wish the Indians to emigrate. It appears that a portion of these Indians have since gone away, while others remain on their lands and now contend for their claims.

Second. That there are instances where individuals went forward and had their names entered down on the book, and yet they were afterwards erased or blotted out by possibly those who had free access to the agent’s books.

Third. It further appears from the testimony of several witnesses of unquestionable character that in the month of June 1831, a number of Indians attended at the council house for the purpose of entering their names to become citizens and take lands. Being ignorant of the English language, they appointed one or two headmen or leaders to go forward for them and give in their names accordingly. As is customary among the Indians, they collected a parcel of small sticks, designating the number of them that wished to register. With these sticks in their hands, the spokesmen went up to the agent and gave them in, at the same time informing the agent, through the interpreter, that these sticks showed the number they came forward to give in. and that they would give the name of each head of families, the number and ages of their children. It appears further that the agent took the sticks in his hand and threw them away and directed the interpreter to tell the Indians that there were too many of them and that they ought or must move over the Mississippi.

Being thus repulsed, or turned off it appears that many of these Indians abandoned their claims and have gone west, while some of them yet remain and now assert their claims under the foregoing signification of their intention to remain.

The investigation had in 1837 was under an act of Congress appointing three commissioners to take additional testimony respecting the conduct of Col. Ward toward the Indians who desired to remain in Mississippi under article 14. The commissioners, under date of July 31, 1838, in their report stated as follows:

From the great mass of proof offered to the board, there can be no doubt of the entire unfitness of the agent for the station. His conduct on many occasions was marked by a degree of hostility to the claims calculated to deter the claimants from making application to him. His manner to the Indians coming before him for registration was often arbitrary, tyrannical, and insulting, and evidently intended to drive them west of the Mississippi against their will and in violation of the letter and spirit of the treaty.

From these causes it has become difficult, at this late day, to make clear proof in all cases of the applications to him to be registered. The book in which the names of a great number of Indians was registered by him, it is clear, has never been returned to the Government. The board have therefore thought it their duty to be satisfied with lighter testimony than under other circumstances they might have deemed themselves bound to require. They have received in evidence of their intention to remain in the country and take lands under the treaty evidence either symbolical, by proxy, as well as by direct application.

It is in proof also that the agency house was very remote from the great body of the nation, and that it was inconvenient to the Indians on that account to make personal application to him at that place, and it is also shown that the modes adopted by them to make their intentions known to him were in conformity with their usual habits and manner of transacting business.

The fact also that these people to the number of not less than 5,000 have remained in the country to this time notwithstanding the efforts of the removing agent of the United States, who has been constantly with them, to induce them to emigrate west of the Mississippi. Their known attachment to their homes, the councils held by them on the subject, and their constant declarations of their intention to remain and take the benefit of the treaty have not been without their influence in bringing the board to the conclusion that it was the almost universal intention of these Indians now remaining east of the Mississippi to take the benefit of the fourteenth article of the treaty.

Again, the Commissioner of Indian Affairs, having before him the reports of agents and investigating committees respecting the conduct of Col. Ward, officially reported as follows:

The agent of the Government, Col. Ward, unfortunately so managed this business that it is left almost entirely to oral testimony to prove the names of those who applied for registration within the six months and the signification of their intention to remain and become citizens of the States. That he kept a book about foolscap size containing two or three quires of paper and which was almost filled with the names of persons registered is proved, and it is also proved that this book was afterwards partially torn up and used as shaving paper, was left out in the weather, and finally was sent to one of the Folsoms, after which nothing more was heard of it. It is also proved that many applied personally to Ward to be registered who were refused on the ground that he had received orders from the department not to register any more; that councils of the Indians were held at which it was determined by those present that they would remain and take lands under the fourteenth article: that lists were made out at some of these councils of the persons present which were presented to Ward by delegates selected for that purpose; that he registered a part of one of the lists and refused to register any more and declined looking at other lists altogether; that at those councils where there was no person present who could write, sticks were cut, one representing each head of a family, a shorter stick attached to each young man, and notches cut representing the females and children; that delegates were appointed out of each neighborhood to take these sticks to the agent and tell him the names of the persons represented by them, the members of their families, etc.; and that when the bundle of sticks was presented by those delegates he threw them away.

In all these cases where it is shown that the claimants in any of these ways, either in person or by delegate, signify or endeavor to signify their intention of remaining, the commissioners have deemed it a virtual compliance with that provision of the treaty and in that opinion of the commissioners I concur. Many of these applications were made to Ward at the time of the payment of an annuity in the summer of 1831, at Leflore’s, which, upon examination, is found to be within six mouths after the ratification of the treaty.

Col. Ward did enroll 71 heads of families and patents were actually issued to 143 heads of families under article 14. In 1838, it appears, however, that there were at least 5,000 Choctaw Indians remaining in Mississippi. Many of them thereafter scattered and some are now found in Texas, some in Louisiana, some in what is now Oklahoma and not enrolled, and a great many still remain in Mississippi. It was found by the court in Choctaw Nation v. United States (119 IT. S., 1), which finding was adopted from the finding made by the Court of Claims in the same case, appeal having been taken to the Supreme Court from the award of the Court of Claims, that 1,346 Choctaw heads of families attempted to comply with the provisions of the treaty. Of course, it must be borne in mind that if 1,346 heads of families attempted to come under article 14, they would represent probably three or four times their number, as each head of a family represented the other members of his family, children and adults. Complaint was repeatedly made to the Government on account of the injuries done Choctaws by the conduct of Col. Ward. Many attempts were made to get at something like a settlement of these claims.

In 1842 the Government decided to adjust these difficulties by issuing scrip in lieu of the land. It must be borne in mind that by this time the government had sold or parted with the major portion of the land ceded by the Mississippi Indians by the treaty of 1830. Not having these lands to give to the defrauded Indians, it decided to give them scrip-not, probably, scrip for as much land as they were entitled to under article 14, but scrip that would give each head of a family about 600 acres. They therefore issued scrip and, under the law one half of it was to be given the Indians at once and the remaining half when they removed and settled upon their land. This scrip was locatable upon the public domain in the Southwest-of course, it was designed to get them west of the Mississippi River. The records are silent about how many of the Indians availed themselves of this scrip and actually located upon the land; but from such information as is obtainable-or, rather, the lack of information- one can not resist the conclusion that in actually none of them ever used the scrip. It was probably traded off or lost or something of that kind.

Again, in 1852, Congress decided in lieu of the scrip not yet delivered to fund the amount and pay it to the Indian. It was therefore funded at $1.25 an acre and amounted to the sum of $872,000.

The query at once is. How was this $872,000 paid, and, especially, did the defrauded Mississippi Choctaws and by Mississippi Choctaws we mean those who elected to take advantage of article 14 of the treaty of 1830 get a part or their proper part of this award? I will go right ahead and complete this as briefly as I can, and then you will have the thing before you.

Hurley, Patrick Jay. Choctaw Citizenship Litigation. 1916.

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