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This commission as constituted consisted of D. N. Cooley, Commissioner of Indian Affairs; Elijah Sells, superintendent of Indian affairs; Thomas Wistar, a leading Quaker; General W. S. Harney, of the United States Army; and Col. E. S. Parker, of General Grant's staff.585 Proceeding to Fort Smith, the council was convened on the 8th day of September, and was attended by delegates representing the Creeks, Choctaws, Chickasaws, Cherokees, Seminoles, Osages, Senecas, Shawnees, Quapaws, Wyandots, Wichitas, and Comanches. In opening the council the Indians were informed that the commissioners had been sent to ascertain their disposition and feeling toward the United States; that most of them had violated their treaty obligations to the Government and, by entering into diplomatic relations with the so-called Confederate States, had forfeited all right to the protection of the United States and subjected their property to the penalty of confiscation.

They were assured, however, that the Government had no disposition to deal harshly with them. On the contrary, it was desirous of undertaking such measures as would conduce to their happiness, and was especially determined to grant handsome recognition to those of them whose loyalty had been so firmly and consistently manifested in the face of the most cruelly adverse conditions. The council continued in session for thirteen days. On the second day the Indians were informed that the commissioners were empowered to enter into treaties with the several tribes upon the basis of the following propositions:

1. That opposing factions of each tribe must enter into a treaty for permanent peace and amity among themselves: also between each other as tribes, and with the United States.

2. The tribes settled in the "Indian country" should bind themselves at the call of the United States authorities to assist in compelling the wild tribes of the plains to keep the peace.

3. Slavery should be abolished and measures should be taken to incorporate the slaves into the several tribes, with their rights guaranteed.

4. A general stipulation as to the final abolition of slavery.

5. A part of the Indian country should be set apart to be purchased for the use of such Indians from Kansas or elsewhere as the Government should desire to colonize therein.

6. That the policy of the Government to unite all the Indian tribes of this region into one consolidated government should be accepted.

7. That no white persons, except Government employés or officers or employés of internal improvement companies authorized by Government, should be permitted to reside in the country unless incorporated with the several nations.

Reasons for Cherokee disloyalty.—The subsequent sessions of the council were largely taken up in the discussion of these propositions by the representatives of the various tribes. It is only with the conduct of the Cherokees, however, that the present history is concerned. The address of the representatives of the "loyal" portion of this tribe is especially noteworthy in this, that they charged the cause of their alliance with the rebel authorities upon the United States, by reason of the latter having violated its treaty obligations in failing to give them protection, whereby they were compelled to enter into treaty relations with the Confederacy. This statement the president of the commission took occasion to traverse, and to assure them of the existence of abundant evidence that their alliance with the Confederacy was voluntary and unnecessary.

Before the close of the council it was ascertained that no final and definite treaties could be made with the tribes represented, for the reason that until the differences between the loyal and disloyal portions could be healed no truly representative delegations of both factions could be assembled in council. Preliminary articles of peace and amity with the different factions of each tribe were prepared and signed as a basis for future negotiations.

Factional hostility among the Cherokees.—The only tribe with whom the commissioners were unsuccessful in re-establishing friendly relations between these factions was the Cherokees.586

The ancient feuds between the Ross and Ridge parties were still remembered. Many of the latter who had remained under Stand Watie in the service of the Confederacy until the close of the war were yet debarred from returning to their old homes, and were living in great destitution on the banks of the Red River.587 When the Ross party had returned to their allegiance, in 1863, their national council had passed an act of confiscation587 against the Watie faction, which had been enforced with the utmost rigor, so that some five or six thousand members of the tribe had been rendered houseless, homeless, and vagabonds upon the face of the earth. All prospect of securing a reconciliation between these parties was for the time being abandoned by the commissioners, and the proposition was seriously considered of securing a home for Watie and his followers among the Choctaws or Chickasaws.588

John Ross not recognized as principal chief.—On the day589 on which the draft of the proposed preliminary treaty was presented to the council by the commissioners John Ross arrived in the camp of the Cherokees. It had already been determined by the commissioners among themselves that his record had been such as to preclude his recognition by them as principal chief of that nation, and it was believed that his influence was being used to prevent the loyal Cherokees from coming to any amicable arrangement with their Southern brethren.

The chairman therefore read to the council590 a paper signed by the several commissioners, reciting the machinations and deceptions of John Ross. It was alleged that he did not represent the will and wishes of the loyal Cherokees, and was not the choice of any considerable portion of the nation for the office claimed by him, an office which by the Cherokee law the commissioners believed he did not in fact hold. They therefore refused, as commissioners representing the interests of the United States, to recognize Ross in any manner as the chief of the Cherokee Nation.

Loyal Cherokees will sign treaty conditionally.—At the same sitting of the council, Colonel Reese, of the loyal Cherokee delegation, declared that they were willing to sign the proposed treaty, but in so doing would not acknowledge that they had forfeited their rights and privileges to annuities and lands as set forth in the preamble, but that their signatures must be made under the following statement, viz: "We, the loyal delegation, acknowledge the execution of the treaty of October 7, 1861, but we solemnly declare that the execution was procured by the coercion of the rebel army."

Southern Cherokees will sign treaty conditionally.—On the following day591 the credentials of the Southern Cherokees were presented by E. C. Boudinot, accompanied by the statement that they cordially acceded to the 1st, 2d, 4th, 5th, and 7th propositions of the commissioners without qualification; that they accepted the abolition of slavery as an accomplished fact, and were willing to give such fact legal significance by appropriate acts of council. They insisted, however, that it would neither be for the benefit of the emancipated negro nor for that of the Indian to incorporate the former into the tribe on an equal footing with its original members. They were also opposed to the policy of consolidating all the tribes in the Indian Territory under one government, because of the many incongruous and irreconcilable elements which no power could bring into a semblance of assimilation.592

Southern Cherokees want a division of territory.—They had already proffered and were willing again to proffer the olive-branch of peace and reconciliation to their brethren of the so called loyal portion of the nation, but respectfully urged that after all the blood that had been shed and the intense bitterness that seemed to fill the bosoms of their brethren they ought not to be expected to live in an undivided country. They wished peace, and they believed they could have it in no other way than by an equitable division of the Cherokee country in such manner as should seem most appropriate to the United States.

Statement by John Ross.—The delegation of loyal Cherokees at the next session of the council593 presented their exceptions to the action of the commissioners in declining to recognize John Ross and that gentleman was permitted to make a statement in his own behalf. The constantly accumulating evidence against him was such, however, as to more fully confirm the commissioners in the propriety of their previous action.

On the 21st of September the council adjourned, to meet again at the call of the Secretary of the Interior.