Cherokee Freedmen Controversy - History - Treaty of 1866

Treaty of 1866

After the Civil War ended in 1865, the factions of Cherokee who supported the Union and those who supported the Confederacy continued to be at odds. On September 1865, each side was represented along with delegations from the other Five Civilized Nations to negotiate with the Southern Treaty Commission headed by the US Commissioner of Indian Affairs Dennis N. Cooley at Fort Smith, Arkansas. Stand Watie and Elias Cornelius Boudinot of the Southern Cherokee delegation hoped to achieve separate status for a Southern Cherokee Nation and wanted the US government to pay for the relocation of Freedmen out of the Cherokee Nation. The Pro-Union Cherokee delegation led by John Ross wanted to adopt Freedmen into the tribe as members and allocate land for their use. The US officials ignored the factional divisions, addressed the Cherokee as one entity, and insisted on further conditions for an agreement. One of the terms insisted by the commission was that the Cherokee, as well as the other Five Civilized Tribes, abolish slavery and grant the Cherokee Freedmen full citizenship, with rights to annuities and land. The two factions prolonged negotiations for a period of time with additional meetings held in Washington DC between the two and the US government. While negotiations took place, the US Department of the Interior tasked the newly established Freedmen's Bureau, headed by Brevet Major General John Sanborn, to observe the treatment of Freedmen in Indian Territory and regulate relations.

The two Cherokee factions offered a series of treaty drafts to the US government with Cooley giving each side twelve stipulations for the treaties. The Pro-Union Cherokee rejected four of those stipulations while agreeing with the rest. While the Southern Cherokee treaty had some support, the treaty offered by Ross' faction was ultimately selected. The Pro-Union faction was the sole Cherokee group that the US government settled treaty terms with. Issues such as the status of Cherokee Freedmen and the voiding of the Confederate treaty were previously agreed upon and both sides compromised on issues such as amnesty for Cherokee that fought for the Confederacy. On July 19, 1866, six delegates representing the Cherokee Nation signed a reconstruction treaty with the United States in Washington DC. The treaty granted Cherokee citizenship to the Freedmen and their descendants (article 9). The treaty also set aside a large tract of land for Freedmen to settle with 160 acres for each person (article 4) and granted them voting rights and self-determination within the constraints of the greater Cherokee Nation (article 5 and article 10).

"The Cherokee Nation having, voluntarily, in February, eighteen hundred and sixty-three, by an act of the national council, forever abolished slavery, hereby covenant and agree that never hereafter shall either slavery or involuntary servitude exist in their nation otherwise than in the punishment of crime, whereof the party shall have been duly convicted, in accordance with laws applicable to all the members of said tribe alike. They further agree that all freedmen who have been liberated by voluntary act of their former owners or by law, as well as all free colored persons who were in the country at the commencement of the rebellion, and are now residents therein, or who may return within six months, and their descendants, shall have all the rights of native Cherokees: Provided, That owners of slaves so emancipated in the Cherokee Nation shall never receive any compensation or pay for the slaves so emancipated." - Article 9 of The Treaty Of 1866

Other nations of the Five Civilized Tribes also signed treaties with the U.S. government in 1866 with articles concerning their respective Freedmen and the abolishing of slavery. While the Chickasaw Nation was the sole tribe that refused to include Freedmen as citizens, the Choctaw Nation granted citizenship to Choctaw and Chickasaw Freedmen in 1885 after considerable tribal debate.

The Cherokee Nation Constitution was amended in a special convention on November 26, 1866. The constitutional amendments removed all language excluding people of African descent and reiterated the treaty's language concerning the Freedmen. The constitution also reiterated the treaty's six-month deadline for Freedmen to return to the Cherokee Nation in order to be counted as citizens. Essentially, Cherokee and other tribal freedmen were allowed the choice to reside as citizens with the tribes, or to have United States citizenship outside the tribal nations.

"All native born Cherokees, all Indians, and whites legally members of the Nation by adoption, and all freedmen who have been liberated by voluntary act of their former owners or by law, as well as free colored persons who were in the country at the commencement of the rebellion, and are now residents therein, or who may return within six months from the 19th day of July, 1866, and their descendants, who reside within the limits of the Cherokee Nation, shall be taken and deemed to be, citizens of the Cherokee Nation." - 1866 Amendments to Article 3, Section 5 of the 1836 Cherokee Nation Constitution