United States v. Old Settlers
Annotate this Case
148 U.S. 427 (1893)
U.S. Supreme Court
United States v. Old Settlers, 148 U.S. 427 (1893)
United States v. Old Settlers
Nos. 1031, 1032
Argued December 13-14, 1892
Decided April 3, 1893
148 U.S. 427
Finding of facts by the Court of Claims, in a suit which Congress has authorized it to take jurisdiction of in equity, may be reviewed by this court.
Congress has not authorized the courts in this litigation to go behind the Treaty of August 6, 1846, 9 Stat. 871, with the Cherokee Nation.
So far as there is a conflict between the treaties with the Cherokees and subsequent acts of Congress, the latter must prevail.
The contention made by the Western Cherokees as to the ownership of land to the west of the Mississippi was put to rest by the treaty of 1846, and cannot now be revived.
The rule that when a party, without force or intimidation and with a full knowledge of all the facts in the case, accepts on account of an unliquidated and controverted demand a sum less than what he claims and believes to be due him, and agrees to accept that sum in full satisfaction, he will not be permitted to avoid his act on the ground of duress does not apply in this case, as it is evident that Congress was convinced that a mistake had been made, and intended to afford an opportunity to have it corrected.
On examining the account between the United States and the Western Cherokees, this Court finds some small errors in the statement of it as made by the Court of Claims, and, after correcting those errors, it agrees with the Court of Claims that interest should be allowed on all but a small part of it, and orders the judgment, as thus corrected, to be affirmed.
The original petition was filed March 8, 1889, and the substituted petition, January 23, 1890, and thereby the petitioners, Bryan, Wilson, and Hendricks, purporting to act for themselves and as the commissioners of the "Old Settlers," or
"Western Cherokee," Indians, represented that the latter are that part of the Cherokee race of Indians which formerly composed the Western Cherokee Nation, and which subsequently became known as the "Old Settlers," and that for the purpose of prosecuting their claims against the United States government they had appointed Bryan, Wilson, and Hendricks as their commissioners to represent and in their names and for their benefit to do and perform any and all acts and things necessary and proper to be done by them in the premises. That the suit was brought under the provisions of the Act of Congress approved February 25, 1889, entitled "An act to authorize the Court of Claims to hear, determine, and render final judgment upon the claim of the Old Settlers, or Western Cherokee Indians," 25 Stat. 694, c. 238, and which is as follows:
"That the claim of that part of the Cherokee Indians known as the 'Old Settlers,' or 'Western Cherokees,' against the United States, which claim was set forth in the report of the Secretary of the Interior to Congress of February-third, eighteen hundred and eighty-three, said report being made under act of Congress of August seventh, eighteen hundred and eighty-two, and contained in executive document number sixty of the second session of the forty-seventh Congress, be, and the same hereby is, referred to the Court of Claims for adjudication, and jurisdiction is hereby conferred on said court to try said cause and to determine what sum or sums of money, if any, are justly due from the United States to said Indians arising from or growing out of treaty stipulations and acts of Congress relating thereto, after deducting all payments heretofore actually made to said Indians by the United States, either in money or property, and, after deducting all offsets, counterclaims, and deductions of any and every kind and character which should be allowed to the United States under any valid provision or provisions in said treaties and laws contained, or to which the United States may be otherwise entitled, and after fully considering and determining whether or not the said Indians have heretofore adjusted and settled their said claim with the United States, it being the intention of
this act to allow the said Court of Claims unrestricted latitude in adjusting and determining the said claim, so that the rights, legal and equitable, both of the United States and of said Indians may be fully considered and determined, and to try and determine all questions that may arise in such cause on behalf of either party thereto, and render final judgment thereon, and the Attorney General is hereby directed to appear in behalf of the government, and if said court shall decide against the United States, the Attorney General shall, within sixty days from the rendition of judgment, appeal the cause to the Supreme Court of the United States, and from any judgment that may be rendered the said Indians may also appeal to said Supreme Court, provided that the appeal of said Indians shall be taken within sixty days after the rendition of said judgment, and said court shall give such cause precedence; provided further that nothing in this act shall be accepted or construed as a confession that the government of the United States is indebted to said Indians."
"SEC. 2. That said action shall be commenced by a petition stating the facts on which said Indians claim to recover, and the amount of their claim, and said petition may be verified by the authorized agent or attorney of said Indians as to the existence of such facts, and no other statement need be contained in said petition or verification."
And it was thereupon averred that under the provisions of certain treaties made and entered into in 1817 and 1819, the Western Cherokees, or Old Settlers, sold, ceded, and relinquished, and there was conveyed to the United States, all their right, title, and interest in and to all the lands belonging to them situated in the states east of the Mississippi, and in consideration thereof the United States sold them certain lands, situated in what is now the State of Arkansas. That, in consideration of the subsequent sale and cession of the lands in Arkansas to the United States, and in further consideration of the removal of the Western nation of Cherokees from the State of Arkansas, under the provisions of the Treaties of May 6, 1828, and February 14, 1833, between the Western Cherokee Nation and the United States, the latter bargained, sold, ceded, relinquished
and conveyed, solely and exclusively to the Western Cherokee Nation, subsequently known as the "Old Settlers," all the lands situated in the now Indian Territory and described in the Treaties of 1828 and 1833, and solemnly guarantied the lands to them forever. That while in the peaceable and undisputed possession and enjoyment of the tract of land in the now Indian Territory, the United States, under the color of a pretended treaty with the Eastern Cherokee Nation in 1835, made and entered into without the knowledge or consent of the Western Cherokee Nation, and to which it was not a party, and from the provisions of which it was prevented from protecting itself by force and fraud on the part of the United States, granted to the Eastern Cherokees the same lands that were sold and conveyed to the Western Cherokee Nation, without the consent and against the wishes and in fraud and violation of the rights of the latter, and removed the Eastern Cherokees, against their will and by force of arms, from their homes east of the Mississippi and located them upon the lands belonging to the Western Cherokees, thus depriving them of the sole use, right to, and interest in the lands as guarantied by treaty, and reserving to them only an interest in proportion to their numbers, they being but one-third of the whole Cherokee people. That from that time and continually thereafter, the Western Cherokees protested against and resisted this invasion of their rights until in 1846, when, acting under duress of life, liberty, and property, advantage being also taken by the United States of the fiduciary relations existing towards the Western Cherokees and also of the condition of extreme impoverishment, destitution, and want to which the Western Cherokees had been reduced by the United States, they were forced to make and enter into an agreement with the United States, fraudulent in character, by the terms of which the consideration they were to receive was grossly inadequate to compensate them for their right to and interest in the lands, of which they had been unjustly deprived by the United States, and for the property destroyed and lost to them through the wrongful acts of the United States, and its default to comply with its treaty obligations. It was further alleged that the land so
bargained, sold, relinquished, and conveyed to the Western Cherokees by the treaties of 1828 and 1833 contained in all 13,610,795.34 acres, and that the Western nation of Cherokees formed but one-third of the whole Cherokee race, the Eastern nation forming the other two-thirds, and that the amount of land owned by the Western nation, which was appropriated by the United States and granted to the Eastern nation of Cherokees under the provisions of the treaty of 1835 was the same part of the whole body of land as was the Eastern nation of the whole body of the Cherokee people, and that therefore the United States took from the Western Cherokees, and deprived them of the sole use, right, title, and interest in and to two-thirds of 13,610,795.34 acres, amounting to the sum of 9,073,863.56 acres, and converted the same to the public use and benefit, the land being worth at the time it was so taken and converted the sum of $5,671,164.72 1/2.
Petitioners further alleged that after the Eastern Cherokees had been forcibly removed into the country of the Western Cherokees through the wrongful acts of the United States, and because of its failure to protect the Western Cherokees according to treaty stipulations, property of great value was lost to them to-wit, of the value of $30,000, and further that the only payments made to the Western Cherokees since the appropriation of their lands and the destruction of their property were the sum of $532,896.90 appropriated by Act of Congress of September 30, 1850, 9 Stat. 556, c. 91, a one-third interest in the sum of $500,000, given by the United States to the whole Cherokee people in common, by the Treaty of 1835, and a one-third interest in 800,000 acres of land sold in common to the Cherokee people by the United States in the Treaty of 1835, which was made exclusively with the Eastern Cherokee Nation, for the sum of $500,000, at which valuation the Western Cherokees have been and still are held charged by the government for their one-third share.
It was further alleged that under the provisions of the Treaty of 1846, the sum of $5,600,000, which had been provided by the Treaty of 1835, and a supplementary treaty thereto of 1836, was adopted and taken by the United States
as a basis of settlement of the claims of the Western Cherokees against the United States, from which amount certain sums were to be first deducted, and of the residuum thus obtained the Western Cherokees were to be paid one-third, according to their numerical proportion to the whole people, and that the charges to be made against the said "treaty fund" were to be limited to "proper" and legitimate charges, "excluding all extravagant and improper expenditures." That the only legitimate charges against the treaty fund are among those enumerated in the fifteenth article of the Treaty of 1835, as provided in the Treaty of 1846, which proper charges were as follows, to-wit: the amount invested as a general national fund, $500,000; the amount expended for 800,000 acres of land $500,000; the amount expended for improvements, $1,540,572.27; the amount expended for ferries, $159,572.12; the amount expended for spoliations, $264,894.09, and that the $600,000 forming a part of the treaty fund was provided by article three of the supplemental Treaty of 1836, for, among other things, the removal of the Eastern Cherokees. That out of this fund there were removed in number 2,495. That of this number, 295 were chattels, to-wit, slaves. That for the removal of personal property there was no provision made by the treaty, and that therefore the only proper expenditure for removal was for 2,200 Eastern Cherokees at $20 each, according to the terms of article four of the Treaty of 1846, amounting to $44,000.
It was also charged that by the fourth article of the Treaty of 1828 there were 3,343.41 acres reserved by the United States, which the latter agreed to dispose of and to apply the proceeds thereof to the sole interest and benefit of the Western Cherokees, together with the value of certain agency improvements on the lands, and that the United States have failed and neglected to do so, and are therefore liable for the full value of the lands and agency improvements -- in all, the sum of $9,179.16 1/4.
It was further averred that, according to the foregoing itemized statement under article 4 of the Treaty of 1846, their account with the United States should be stated as follows:
By "treaty fund," under 4th article, treaty 1846 . . . . $5,600,000.00
To improvements . . . . . . . . . . . . . $1,540,572.27
" ferries. . . . . . . . . . . . . . . . 159,572.12
" spoliations. . . . . . . . . . . . . . 264,894.09
" additional lands . . . . . . . . . . . 500,000.00
" invested funds . . . . . . . . . . . . 500,000.00
" removal, 2,200 Indians . . . . . . . . 44,000.00
Balance of "treaty fund," after proper reductions. . . . $2,590,961.52
By 1/3 of the above balance, under
terms of said 4th article of Treaty of 1846. . . . . . 863,653.84
To appropriation, Act Sept. 30, 1850 . . . . . . . . . . 532,896.96
Principal sum due under 4th article of Treaty of 1846 $ 330,756.94
Petitioners further alleged that under the provisions of the eleventh article of the Treaty of 1846, and a resolution of the Senate of the United States of September 5, 1850, in pursuance thereof, they are entitled to interest at the rate of five percent per annum upon whatever principal sum might be found due them from the 12th of June, 1838, until paid, wherefore it was prayed:
"First. That they be not held to be bound by the terms of the contract made and entered into by and between them and the defendants on the 6th day of August, 1846, and known as the 'Treaty of 1846,' as fully set forth above, and that they may be relieved of the onerous, unjust, and inequitable provisions thereof, and that the defendants to this suit be decreed and adjudged to pay unto them the value of the lands belonging to them under the treaties of 1828 and 1833, as aforesaid, the sole right and title in and to and use and benefit of which were taken from them by the said Treaty of 1835 with the Eastern Cherokees at the valuation of similar lands by the said treaty, to-wit, the sum of 62 1/2 cents per acre -- in all, the sum of $5,671,164.72 1/2, together with the additional sums of $30,000 and $9,179.16 1/4, as set forth in paragraphs 8 and 11 of this petition, less one-third of the amounts paid for additional lands and the permanent investment fund, and the payment, $532,896.90, as set forth in the ninth paragraph of this petition;
amounting in all to $866,230.23 1/3, showing a balance as follows:"
By value of lands. . . . . . . . . . . . . . . . . . . . $5,671,164.72 1/2
" property destroyed, etc. . . . . . . . . . . . . . . . 30,000.00
" value of lands and improvements in Arkansas. . . . . . 9,179.16 1/4
To 1/3 price additional lands. . . . $ 166,666.66 2/3
" one-third permanent investment fund 166,666.66 2/3
" payment, Act of September 30, 1850 532,896.90
$866,230 23 1/3 $5,710,343.88 3/4
Balance . . . . . . . . . . . . . . . . . . . . . . . $4,844,113.65
"For this amount, together with interest at the rate of 5 percentum per annum from June 12, 1838, until paid, your petitioners ask for a decree."
"Second. That if this honorable court should hold that they are not entitled to the relief above prayed for, that the defendants be adjudged and decreed to pay unto your petitioners the sums of $330,756.94, under the provisions of the fourth article of the Treaty of 1846, and $9,179.16 1/4 under the provisions of the Treaty of 1828, and the further sum of $30,000 for property destroyed, etc.; in all, the sum of $369,936.10 1/4, with interest at the rate of five percentum per annum from June 12, 1838, until paid."
"Third. That this honorable court will examine this case with"
"unrestricted latitude, . . . so that the rights, legal and equitable, both of the United States and your petitioners, may be fully considered and determined,"
"and enter such a decree as equity and good conscience may dictate in the premises."
Upon the hearing, the facts disclosed by the evidence, chiefly documentary, and set forth in substance in the findings and opinion of the Court of Claims, 27 Ct.Cl. 1, may be sufficiently stated as follows:
The Cherokee Indians held, under the Treaty of November 28, 1785, 7 Stat. 18, a considerable body of lands situated in the States of North Carolina, Tennessee, Georgia, and Alabama.
On the 26th of December, 1817, a treaty between the United States and
"the chiefs, headmen, and warriors of the Cherokee Nation east of the Mississippi River and the chiefs, headmen, and warriors of the Cherokees on the Arkansas River, and their deputies"
was proclaimed, in the preamble to which it is recited that, in 1808, there being dissatisfaction on the part of a portion of the nation who wished to continue the hunter life, and to remove across the Mississippi River on vacant lands of the United States, a representation to that effect was made to the authorities at Washington, to which the President replied January 9, 1809, that
"those who wish to remove are permitted to send an exploring party to reconnoiter the country on the waters of the Arkansas and White rivers, and the higher up the better, as they will be the longer unapproached by our settlements, which will begin at the mouths of those rivers,"
"when this party shall have found a tract of country suiting the emigrants, and not claimed by other Indians, we will arrange with them and you for the exchange of that for a just portion of the country they leave, and to a part of which, proportioned to their numbers, they have a right."
It was further recited that the Cherokees had explored the country on the west side of the Mississippi, and had settled down upon United States lands on the Arkansas and the White Rivers, and that these emigrants, and those about to remove, were ready to relinquish their proportionate rights in the lands east, which they had left and were about to leave. Thereupon the cession of certain lands was made; a census of those Indians remaining east and of those on the Arkansas, and removing there, or declaring their intention of doing so, was provided for; the annuity for 1818 was agreed to be divided in proportion to the numbers of the two parts of the nation, and the United States bound themselves to give as much land on the Arkansas and White Rivers as they had or might receive of the lands east, as the just proportion of that part of the nation on the Arkansas agreeably to their numbers; also to give to all the poor warriors who might remove one rifle and ammunition, one blanket, and one brass kettle or
beaver trap; to furnish flat-bottomed boats, and provisions to aid in removal, and to pay for improvements adding to the real value of the lands ceded. 7 Stat. 156.
About one-third of the whole nation emigrated, and by the Treaty of March 10, 1819, provisions were made for the payment of one-third of the annuity to the Cherokees west and two-thirds to those east. 7 Stat. 195. The Indians who thus emigrated, with accessions down to 1835, were known as the "Old Settlers," or "Western Cherokees."
On May 28, 1828, a treaty was made with the "chiefs and headmen of the Cherokee Nation of Indians west of the Mississippi" by which it was agreed that the lands in Arkansas should be relinquished to the United States, and a new grant was made of 7,000,000 acres, with an outlet west, the whole amounting to 13,610,795.34 acres. The preamble recites:
"Whereas, it being the anxious desire of the government of the United States to secure to the Cherokee Nation of Indians, as well as those now living within the limits of the Territory of Arkansas as those of their friends and brothers who reside in states east of the Mississippi, and who may wish to join their brothers of the west, a permanent home, and which shall, under the most solemn guaranty of the United States, be and remain theirs forever, a home that shall never, in all future time, be embarrassed by having extended around it the lines or placed over it the jurisdiction of a territory or state, nor be pressed upon by the extension in any way of any of the limits of any existing territory or state."
By Article 2, the United States agreed to possess the Cherokees with the land described west of the Arkansas, and by Article 3 the expenses of removal are provided for.
By the fourth article, the property and improvements connected with the Indian agency were to be sold under the direction of the agent, and the proceeds of the same to be applied in the erection, in the country to which the Cherokees were going, of a grist and saw mill for their use.
Article 8 stated that
"The Cherokee Nation west of the
Mississippi having, by this agreement, freed themselves from the harassing and ruinous effects consequent upon a location amidst a white population, and secured to themselves and their posterity, under the solemn sanction of the guaranty of the United States, as contained in this agreement, a large extent of unembarrassed country, and that their brothers yet remaining in the states may be induced to join them and enjoy the repose and blessings of such a state in the future, it is further agreed on the part of the United States that to each head of a Cherokee family now residing within the chartered limits of Georgia, or of either of the states east of the Mississippi, who may desire to remove west, shall be given, on enrolling himself for emigration, a good rifle, a blanket, and kettle, and five pounds of tobacco, and to each member of his family one blanket; also a just compensation for the property he may abandon, to be assessed by persons to be appointed by the President of the United States. The cost of the emigration of all such shall also be borne by the United States, and good and suitable ways opened and provisions procured for their comfort, accommodation, and support by the way, and provisions for twelve months after their arrival at the agency,"
etc. 7 Stat. 311, 313.
A supplemental treaty with the Western Cherokees was proclaimed February 14, 1833, the purpose of which was to more clearly define the boundaries of the cession of 1828. By the fourth article, certain corn mills were to be erected in lieu of the requisition of article fourth of the prior treaty. 7 Stat. 465.
Efforts followed the Treaty of 1828 to induce the Eastern Cherokees to remove west, but the consent of all could not be obtained. The Eastern Cherokees became divided into two parties, the Ridge, or treaty party, and the Ross party, of which the latter was largely in the majority. December 29, 1835, a treaty was made with "the chiefs, headmen, and people of the Cherokee tribe of Indians" at New Echota, and proclaimed May 23, 1836, which referred in its second article to the treaties with the Western Cherokees of 1828 and 1833 as securing the conveyance of the 7,000,000 acres, and the
outlet to the "Cherokee Nation of Indians," and recited that
"Whereas, it is apprehended by the Cherokees that in the above cession there is not contained a sufficient quantity of land for the accommodation of the whole nation on their removal west of the Mississippi, the United States, in consideration of the sum of five hundred thousand dollars therefor,"
thereby covenanted and agreed to convey 800,000 acres more.
Articles 1, 8, 10, and 15 are as follows:
"Article 1. The Cherokee Nation hereby cede, relinquish, and convey to the United States all the lands owned, claimed, or possessed by them east of the Mississippi River, and hereby release all their claims upon the United States for spoliations of every kind, for and in consideration of the sum of five millions of dollars, to be expended, paid, and invested in the manner stipulated and agreed upon in the following articles. But as a question has arisen between the commissioners and the Cherokees whether the Senate, in their resolution by which they advised 'that a sum not exceeding five millions of dollars be paid to the Cherokee Indians for all their lands and possessions east of the Mississippi River,' have included and made any allowance or consideration for claims for spoliations, it is therefore agreed on the part of the United States that this question shall be again submitted to the Senate for their consideration and decision, and, if no allowance was made for spoliations, that then an additional sum of three hundred thousand dollars be allowed for the same."
"Article 8. The United States also agree and stipulate to remove the Cherokees to their new homes, and to subsist them one year after their arrival there, and that a sufficient number of steamboats and baggage wagons shall be furnished to remove them comfortably, and so as not to endanger their health, and that a physician, well supplied with medicines, shall accompany each detachment of emigrants removed by the government. Such persons and families as in the opinion of the emigrating agent are capable of subsisting and removing themselves shall be permitted to do so, and they shall be allowed in full for all claims for the same twenty dollars for
each member of their family, and in lieu of their one year's rations, they shall be paid the sum of thirty-three dollars and thirty-three cents, if they prefer it."
"Such Cherokees also as reside at present out of the nation, and shall remove with them in two years west of the Mississippi, shall be entitled to allowance for removal and subsistence as above provided."
"Article 10. The President of the United States shall invest in some safe and most productive public stocks of the country, for the benefit of the whole Cherokee Nation who have removed or shall remove to the lands assigned by this treaty to the Cherokee Nation west of the Mississippi, the following sums as a permanent fund for the purposes hereinafter specified, and pay over the net income of the same annually to such person or persons as shall be authorized or appointed by the Cherokee Nation to receive the same, and their receipt shall be a full discharge for the amount paid to them viz: the sum of two hundred thousand dollars, in addition to the present annuities of the nation, to constitute a general fund, the interest of which shall be applied annually by the council of the nation to such purposes as they may deem best for the general interest of their people. The sum of fifty thousand dollars to constitute an orphans' fund, the annual income of which shall be expended towards the support and education of such orphan children as are destitute of the means of subsistence. The sum of one hundred and fifty thousand dollars, in addition to the present school fund of the nation, shall constitute a permanent school fund, the interest of which shall be applied annually by the council of the nation for the support of common schools, and such a literary institution of a higher order as may be established in the Indian country. . . . The United States also agree and stipulate to pay the just debts and claims against the Cherokee Nation held by the citizens of the same, and also the just claims of citizens of the United States for services rendered to the nation, and the sum of sixty thousand dollars is appropriated for this purpose, but no claims against individual persons of the nation shall be allowed and paid by the nation. The sum of three hundred
thousand dollars is hereby set apart to pay and liquidate the just claims of the Cherokees upon the United States for spoliations of every kind that have not been already satisfied under former treaties."
"Article 15. It is expressly understood and agreed between the parties to this treaty that, after deducting the amount which shall be actually expended for the payment for improvements, ferries, claims for spoliations, removal, subsistence, and debts, and claims upon the Cherokee Nation, and for the additional quantity of lands and goods for the poorer class of Cherokees, and the several sums to be invested for the general national funds, provided for in the several articles of this treaty, the balance, whatever the same may be, shall be equally divided between all the people belonging to the Cherokee Nation east according to the census just completed, and such Cherokees as have removed west since June, 1833, who are entitled by the terms of their enrollment and removal to all the benefits resulting from the final treaty between the United States and the Cherokees East, they shall also be paid for their improvements according to their approved value before their removal, where fraud has not already been shown in their valuation."
Article 11 provided for a commutation of the permanent annuity of $10,000 for the sum of $214,000.
By Article 12, a committee was designated,
"fully empowered and authorized to transact all business on the part of the Indians which may arise in carrying into effect the provisions of this treaty, and settling the same with the United States,"
and it was provided
"that the sum of one hundred thousand dollars shall be expended by the commissioners in such manner as the committee deem best for the benefit of the poorer class of Cherokees as shall remove west, or have removed west, and are entitled to the benefits of this treaty."
By Article 16, it was stipulated that the Cherokees should "remove to their new homes within two years from the ratification of this treaty," and by Article 17, that
"all the claims arising under or provided for in the several Articles of this treaty shall be examined and adjudicated by . . . such
commissioners as shall be appointed by the President of the United States for that purpose, and their decisions shall be final, and on their certificate of the amount due the several claimants they shall be paid by the United States."
7 Stat. 478.
A controversy arising as to the deduction of the cost of removal from the $5,000,000 purchase money, a supplemental treaty was concluded and proclaimed with the other treaty, on the same day, namely, May 23, 1836, of which Articles 2 and 3 are as follows:
"Article 2. Whereas the Cherokee people have supposed that the sum of five millions of dollars fixed by the Senate in their resolution of ___ day of March, 1835, as the value of the Cherokee lands and possessions east of the Mississippi River was not intended to include the amount which may be required to remove them, nor the value of certain claims which many of their people had against citizens of the United States, which suggestion has been confirmed by the opinion expressed to the War Department by some of the senators who voted upon the question, and whereas the President is willing that this subject should be referred to the Senate for their consideration, and, if it was not intended by the Senate that the above-mentioned sum of five millions of dollars should include the objects herein specified, that in case such further provision should be made therefor as might appear to the Senate to be just."
"Article 3. It is therefore agreed that the sum of six hundred thousand dollars shall be, and the same is hereby, allowed to the Cherokee people, to include the expense of their removal, and all claims of every nature and description against the government of the United States not herein otherwise expressly provided for, and to be in lieu of the said reservations and preemptions, and of the sum of three hundred thousand dollars for spoliations, described in the first article of the above-mentioned treaty. This sum of six hundred thousand dollars shall be applied and distributed agreeably to the provisions of the said treaty, and any surplus which may remain after removal and payment of the claims so ascertained shall be turned over and belong to the education fund. But it is expressly
understood that the subject of this article is merely referred hereby to the consideration of the Senate, and, if they shall approve the same, then this supplement shall remain part of the treaty."
Article 4 provided:
"It is also understood and agreed that the one hundred thousand dollars appropriated in Article 12 for the poorer class of Cherokees, and intended as a setoff to the preemption rights, shall now be transferred from the funds of the nation, and added to the general national fund of four hundred thousand dollars, so as to make said fund equal to five hundred thousand dollars."
7 Stat. 488.
There was accordingly invested $714,000 -- $500,000 national fund, covering the various items before mentioned, and $214,000 commutation.
The $5,600,000 was thenceforth commonly styled the "treaty fund," though the $600,000 was allowed with particular reference to the expense of removal.
The court having ruled the Secretary of the Interior to furnish from the official records of his department information, first as to the number of acres of land ceded to the Cherokee Indians under the Treaty of December 29, 1835, exclusive of the 800,000 acres, and second the number of acres of land ceded and relinquished by the Cherokee Indians to the United States east of the Mississippi River under said treaty, the Secretary furnished a letter from the acting Commissioner of Indian Affairs to him, from which it appeared that the land by actual survey (except the Cherokee reservation, which was estimated) amounted to 13,610,795.34 acres, and that the number of acres stated in the patent issued December 31, 1838, to the Cherokee Nation for said land, the outlying boundaries of which had been surveyed, was 13,574,135.14, which included the 7,000,000 acres, and the outlet as such; and further, that there were no data in the office of Indian affairs from which an approximate estimate could be made of the number of acres of land ceded to the United States east of the Mississippi, but that a letter to the Secretary of War dated February 27, 1833, gave an estimate of 6,730,000
acres, which was believed too large by nearly a million of acres.
The record contains a communication from commissioners appointed to settle claims under the Treaty of 1835, addressed to the Secretary of War, under date February 21, 1837, asking his opinion
"of the true and fair construction of those provisions of the treaty which provide for claims of citizens of the United States for services rendered the Cherokee Nation,"
"We are not able to perceive and provision whatever for the payment of claims of the above description, except what is contained in the tenth Article of the treaty, and which limits the amount which may be thus allowed to the sum of sixty thousand dollars."
The Treaty of New Echota was signed by persons purporting to represent the Eastern Cherokees, and assent to its provisions was given by two delegates from the Western Cherokees. John Ross and his followers were absent from the council that adopted the treaty, and disputed its validity. The authority of the Western delegates was also denied. The Ridge, or treaty party, numbered some 2,200, and they emigrated to the west, carrying with them 295 slaves; the cost of removal falling on the United States. The Eastern Cherokees, numbering 14,757, disavowed the treaty, and memorialized the President and Congress. The United States authorities then in effect offered that if they would remove to the Indian Territory, the expense of their subsistence should not be charged against the $5,600,000. Early in 1838, the removal of these Indians by military force commenced, and by Act of Congress of June 12, 1838, 5 Stat. 241, c, 97, $1,047,067 was appropriated to defray the expenses of their removal and subsistence. The whole of this appropriation was expended, and in addition the sum of $189,422.76. In August, 1838, on their way to the Indian Territory, the Eastern Cherokees last mentioned resolved in council
"that the inherent sovereignty of the Cherokee Nation, together with the constitution, laws, and usages of the same, are, and by the authority aforesaid, are hereby declared to be, in full force and virtue, and shall continue so to be in perpetuity, subject to such modifications as
the general welfare may render expedient."
Upon their arrival, they refused to submit to the government of the Western Cherokees, but offered to unite in a general council, which should frame a constitution and establish a government for all. The Western Cherokees declined to make this arrangement, and insisted that the Eastern Cherokees had entered their territory without their permission, and that their character was that of aliens or immigrants, subject to the constitution and laws theretofore existing in the territory. A number of efforts followed to form a union, and at a popular convention in January, 1840, an act of union was ratified, which had been adopted in July, 1839. The validity of this act of union and of the ratification was denied, but the Cherokee Nation thereby created seems to have been recognized as lawful by the United States. However, between the years 1838 and 1846, the Cherokee country was the scene of intestinal disorders of the gravest character, destroying the rights and liberties of certain of the Cherokees and endangering the peace of the frontier.
June 18, 1846, the Western Cherokees agreed to submit their claims to a board of commissioners to be appointed by the President and Senate of the United States. The board was appointed, and arrived at and announced its conclusions after an elaborate presentation of the claims of the Western Cherokees.
On August 3, 1846, the delegates of the Western Cherokees informed the commissioners that they were willing to agree to the suggested basis of settlement, which they state as they understand it, and closed their letter by saying
"that they will always consider whatever money may be paid their people, under the provisions of the present treaty, will be received as a payment for their country west of the Mississippi, which they now relinquish to the whole nation. They do not acquiesce in the decision of the commissioners that their country became the property of the whole Cherokee people by virtue of the Treaty of 1828, or any subsequent treaty, and, should the treaty now proposed fail from any cause, it is their fixed determination to reassert their rights to the country secured to them by the Treaty of 1833, and to prosecute their claim to
same by all proper and lawful means in the power of a feeble and oppressed people,"
and they ask that the letter be communicated to the President and Senate of the United States with the other proceedings.
August 6, 1846, a treaty was concluded between the United States, by Edmund Burke, William Armstrong, and Albion K. Parris, commissioners, the principal chief and delegates duly appointed by the Eastern Cherokees, the representatives of the treaty party, and the representatives of the Western Cherokees. 9 Stat. 871.
The preamble stated the reasons for the treaty as follows:
"Whereas serious difficulties have for a considerable time past existed between the different portions of the people constituting and recognized as the Cherokee Nation of Indians, which it is desirable should be speedily settled, so that peace and harmony may be restored among them, and whereas, certain claims exist on the part of the Cherokee Nation, and portions of the Cherokee people, against the United States. Therefore, with a view to a final and amicable settlement of the difficulties and claims before mentioned, it is mutually agreed by the several parties to this convention as follows, viz.: . . . "
By Article 1, lands now occupied by the Cherokee Nation were secured to the whole Cherokee people. By Article 2, it was provided that all differences theretofore existing between the several parties of the Cherokee Nation should be settled and adjusted; that all party distinctions should cease, except so far as they should be necessary to carry out the treaty, and a general amnesty was thereby declared. Article 3 related to certain reimbursements to be made by the United States to the $5,000,000 fund, with which it was not properly chargeable.
Articles 4 and 5 read as follows:
"Article 4. And whereas it has been decided by the board of commissioners recently appointed by the President of the United States to examine and adjust the claims and difficulties existing against and between the Cherokee people and the United States, as well as between the Cherokees themselves,
that under the provisions of the Treaty of 1828, as well as in conformity with the general policy of the United States in relation to the Indian tribes, and the Cherokee Nation in particular, that that portion of the Cherokee people known as the 'Old Settlers,' or 'Western Cherokees,' had no exclusive title to the territory ceded in that treaty, but that the same was intended for the use of, and to be the home for, the whole nation, including as well that portion then east as that portion then west of the Mississippi, and whereas the said board of commissioners further decided that inasmuch as the territory before mentioned became the common property of the whole Cherokee Nation by the operation of the Treaty of 1828, the Cherokees then west of the Mississippi, by the equitable operation of the same treaty, acquired a common interest in the lands occupied by the Cherokees east of the Mississippi River, as well as in those occupied by themselves west of that river, which interest should have been provided for in the Treaty of 1835, but which was not, except insofar as they, as a constituent portion of the nation, retained, in proportion to their numbers, a common interest in the country west of the Mississippi, and in the general funds of the nation, and therefore they have an equitable claim upon the United States for the value of that interest, whatever it may be. Now, in order to ascertain the value of that interest, it is agreed that the following principles shall be adopted, viz.: all the investments and expenditures which are properly chargeable upon the sums granted in the Treaty of 1835, amounting in the whole to five millions six hundred thousand dollars, which investments and expenditures are particularly enumerated in the fifteenth Article of the Treaty of 1835, to be first deducted from said aggregate sum, thus ascertaining the residuum or amount which would, under such marshaling of accounts, be left for per capita distribution among the Cherokees emigrating under the Treaty of 1835, excluding all extravagant and improper expenditures, and then allow to the Old Settlers (or Western Cherokees) a sum equal to one-third part of said residuum, to be distributed per capita to each individual of said party of 'Old Settlers,' or 'Western Cherokees.' It is further agreed
that, so far as the Western Cherokees are concerned, in estimating the expense of removal and subsistence of an Eastern Cherokee, to be charged to the aggregate fund of five million six hundred thousand dollars above mentioned, the sums for removal and subsistence stipulated in the eighth Article of the Treaty of 1835 as commutation money in those cases in which the parties entitled to it removed themselves shall be adopted. And as it affects the settlement with the Western Cherokees, there shall be no deduction from the fund before mentioned in consideration of any payments which may hereafter be made out of said fund, and it is hereby further understood and agreed that the principle above defined shall embrace all those Cherokees west of the Mississippi who emigrated prior to the Treaty of 1835."
"In the consideration of the foregoing stipulation on the part of the United States, the 'Western Cherokees,' or 'Old Settlers,' hereby release and quitclaim to the United States all right, title, interest, or claim they may have to a common property in the Cherokee lands east of the Mississippi River, and to exclusive ownership to the lands ceded to them by the Treaty of 1833 west of the Mississippi, including the outlet west, consenting and agreeing that the said lands, together with the eight hundred thousand acres ceded to the Cherokees by the Treaty of 1835, shall be and remain the common property of the whole Cherokee people, themselves included."
"Article 5. It is mutually agreed that the per capita allowance to be given to the 'Western Cherokees,' or 'Old Settlers,' upon the principle above stated shall be held in trust by the government of the United States and paid out to each individual belonging to that party or head of family, or his legal representatives. And it is further agreed that the per capita allowance to be paid as aforesaid shall not be assignable, but shall be paid directly to the persons entitled to it, or to his heirs or legal representatives, by the agent of the United States authorized to make such payments."
"And it is further agreed that a committee of five persons shall be appointed by the President of the United States from the party of 'Old Settlers,' whose duty it shall be, in conjunction
with an agent of the United States, to ascertain what persons are entitled to the per capita allowance provided for in this and the preceding Article."
Article 6 appropriated $115,000 for the indemnification of the treaty party. Article 7 related to the value of salines, which were the private property of individual Western Cherokees and of which they were dispossessed. Article 8 provided for the payment to the Cherokee Nation of $2,000 for a printing press, etc., destroyed; $5,000, to be equally divided
"among all those whose arms were taken from them previous to their removal west by order of an officer of the United States, and the further sum of $20,000 in lieu of all claims of the Cherokee Nation as a nation, prior to the Treaty of 1835, except all lands reserved by treaties heretofore made for school funds."
Article 9 read thus:
"Article 9. The United States agree to make a fair and just settlement of all moneys due to the Cherokees, and subject to the per capita division under the treaty of 29th December, 1835, which said settlement shall exhibit all money properly expended under said treaty, and shall embrace all sums paid for improvements, ferries, spoliations, removal, and subsistence, and commutation therefor, debts and claims upon the Cherokee nation of Indians, for the additional quantity of land ceded to said nation, and the several sums provided for in the several Articles of the treaty to be invested as the general funds of the nation, and also all sums which may be hereafter properly allowed and paid under the provisions of the Treaty of 1835. The aggregate of which said several sums shall be deducted from the sum of six millions six hundred and forty-seven thousand and sixty-seven dollars, and the balance thus found to be due shall be paid over, per capita, in equal amounts, to all individuals, heads of families, or their legal representatives, entitled to receive the same under the Treaty of 1835 and the supplement of 1836, being all those Cherokees residing east at the date of said treaty and the supplement thereto. "
Article 10 related to Cherokees still residing east of the Mississippi River. Articles 11 and 12 were as follows:
"Article 11. Whereas the Cherokee delegations contend that the amount expended for the one year's subsistence, after their arrival in the west, of the Eastern Cherokees is not properly chargeable to the treaty fund, it is hereby agreed that that question shall be submitted to the Senate of the United States for its decision, which shall decide whether the subsistence shall be borne by the United States or the Cherokee funds, and, if by the Cherokees, then to say whether the subsistence shall be charged at a greater rate than thirty-three 33/100 dollars per head, and also the question whether the Cherokee Nation shall be allowed interest on whatever sum may be found to be due the nation, and from what date and at what rate per annum."
"Article 12. The Western Cherokees, called 'Old Settlers,' in assenting to the general provisions of this treaty in behalf of their people, have expressed their fixed opinion that in making a settlement with them upon the basis herein established, the expenses incurred for the removal and subsistence of Cherokees after the twenty-third day of May, 1838, should not be charged upon the five millions of dollars allowed to the Cherokees for their lands under the Treaty of 1835, or on the fund provided by the-third Article of the supplement thereto, and that no part of the spoliations, subsistence, or removal provided for by the several Articles of said treaty and the supplement thereto should be charged against them in their settlement for their interest in the Cherokee country east and west of the Mississippi River. And the delegation of 'Old Settlers,' or 'Western Cherokees,' propose that the question shall be submitted with this treaty to the decision of the Senate of the United States, of what portion, if any, of the expenditures made for removal, subsistence, and spoliations under the Treaty of 1835 is properly and legally chargeable to the five-million fund. And they will abide by the decision of the Senate."
The treaty was ratified by the Senate August 8, 1846, after amendments to the fifth Article, which is given above as amended, and striking out the twelfth Article. The amendments
to the treaty by the Senate were agreed to by the representatives of the several parties of Indians, August 13, 1846.
A joint resolution of Congress was approved August 7, 1848, 9 Stat. 339, as follows:
"That the proper accounting officers of the Treasury be, and they are hereby, authorized and required to make a just and fair statement of the claims of the Cherokee Nation of Indians, according to the principles established by the treaty of August, 1846, between the United States and said Indians, and that they report the same to the next session of Congress."
On the 8th of August, 1850, the Senate committee on Indian affairs made a report, Senate Report 1st Sess. 31st Cong. No. 176, setting forth, among other things, that
"the statement of accounts according to the principles of the Treaty of 1846 between the United States and the Western and Eastern Cherokees, respectively, was a labor of time and research, involving an examination of every item of expenditure under the Treaty of 1835, through a period extending from the year 1835 to 1846. This duty was therefore committed by joint resolution of Congress of the 7th of August, 1848, to the Second Auditor and second Comptroller of the Treasury, not only because they were 'the proper accounting officers,' but because one of those officers had acted as one of the commissioners of the United States in making the Treaty of 1846, and was justly supposed to be well informed as to its true object and intent."
The officer thus referred to was Judge Parris, of Maine, and the record contains the report of the Second Comptroller and Second Auditor of the Treasury, giving a statement of the account of the Cherokee Nation of Indians, according to the principles established by the treaty. The items of charges against the Cherokee Nation are given in detail and deducted from $6,647,067, the amount specified in Article 9 of the treaty, being made up of the $5,000,000, the $600,000, and the $1,047,067.
The account as stated in the Senate report was as follows:
This fund, provided by the Treaty of 1835, consisted of . . . $5,600,000.00
From which are to be deducted, under the Treaty of 1846,
(4th article,) the sums chargeable under the 15th
article of the Treaty of 1835, which, according to the
report of the accounting officers, will stand thus:
For improvements . . . . . . . . . . . . . . $1,540,572.27
For ferries. . . . . . . . . . . . . . . . . 159,572.12
For spoliations. . . . . . . . . . . . . . . 264,894.09
For removal and subsistence of 18,026 Indians
at $53.33 1/3 per head . . . . . . . . . . 961,386.68
Debts and claims upon the Cherokee Nation, viz.:
National debts (10th Article) . . . $18,062.06
Claims of United States citizens
(10th Article) . . . . . . . . . 61,073.49
Cherokee committee (12th
Article) . . . . . . . . . . . 22,212.76
Amount allowed United States for additional
quantity of land ceded. . . . . . . . . . . 500,000.00
Amount invested as a general fund of
the nation. . . . . . . . . . . . . . . . . 500,880.00
Making in the aggregate the sum of . . . . . . . . . . . . 4,028,653.45
Which, being deducted from the treaty fund of $5,600,000,
leaves the residuum, contemplated by the 4th article of the
Treaty of 1846, of . . . . . . . . . . . . . . . . . . . . $1,571,346.55
of which amount, one-third was to be allowed to the Western Cherokees for their interest in the Cherokee country east, being the sum of $523,782.18, and an appropriation of that amount was recommended. The committee also considered the two questions referred to the Senate in respect of whether the amount expended for subsistence should be borne by the United States or by the Cherokee funds, and whether the Cherokees should receive interest on the sums found due them from a misapplication of their funds, and recommended the adoption of the following resolutions, which were accordingly adopted, September 5, 1850, by the Senate, as umpire, under Article 11 of the Treaty of 1846 (Sen. Journ. 1st Sess. 31st Cong. 601):
"Resolved by the Senate of the United States that the Cherokee Nation of Indians are entitled to the sum of $189,422.76 for subsistence, being the difference between the amount
allowed by the Act of June 12, 1838, and the amount actually paid and expended by the United States, and which excess was improperly charged to the 'treaty fund' in the report of the accounting officer of the Treasury."
"Resolved that it is the sense of the Senate that interest at the rate of five percent per annum should be allowed upon the sums found due the 'Eastern' and 'Western' Cherokees, respectively, from the 12th day of June, 1838, until paid."
The committee gave their reasons for the first resolution at length. They stated that they entertained no doubt but that by a strict construction of the Treaty of 1835, the expense of a year's subsistence of the Indians after their removal west was a proper charge upon the treaty fund, but they set forth a variety of considerations which justified the conclusion that the expense for subsistence was to be borne by the United States, including certain action by the Secretary of War in 1838, and the language of the Act of June 12, 1838, making the appropriation of $1,047,067. By the latter, Congress provided that no part of the $600,000 or of the $1,047,067 should be taken from the treaty fund. The $1,047,067 was, said the committee
"made auxiliary to the $600,000 provided for in the-third supplemental Article -- a fund provided for removal and other expenditures independent of the treaty, and in full for these objects. But as respects subsistence, it was in aid of the expense for that purpose, a discharge pro tanto of the obligation of the government to subsist them, and not final satisfaction as in the case of removal. The fund proved wholly inadequate for these purposes. The entire expense of removal and subsistence amounted to $2,952,196.26, of which the sum of $972,844.78 was expended for subsistence, and of this last amount $172,316.47 was furnished to the Indians when in great destitution, upon their own urgent application, after the expiration of the one year, upon the understanding that it was to be deducted from the moneys due them under the treaty. This leaves the net sum of $800,528.31 paid for subsistence, and charged to the aggregate fund. Of this sum, the United States provided by the act of 12th June, 1838,
for $611, 105.55."
This left $189,422.76 to be made up in order to cover the entire subsistence.
The second section of the Act of June 12, 1838, read as follows:
"That the further sum of one million forty-seven thousand and sixty-seven dollars be appropriated out of any money in the Treasury not otherwise appropriated, in full for all objects specified in the-third Article of the supplementary Articles of the treaty of eighteen hundred and thirty-five between the United States and the Cherokee Indians, and for the further object of aiding in the subsistence of said Indians for one year after their removal west, provided that no part of the said sum of money shall be deducted from the five millions stipulated to be paid to the said tribe of Indians by said treaty."
And of this amount the committee found that only $611,105.55 had been expended for the one year's subsistence.
The Act of Congress of September 30, 1850, making appropriations for the current and contingent expenses of the Indian Department, and for fulfilling treaty stipulations with various Indian tribes for the year ending June 30, 1851, 9 Stat. 544, 556, c. 91, contained the following:
"For the additional amount for expenses paid for subsistence and improperly charged to the treaty fund, according to the award of the Senate of fifth day of September, eighteen hundred and fifty, under the provisions of the eleventh Article of the Treaty of sixth day of August, eighteen hundred and forty-six, one hundred and eighty-nine thousand four hundred and twenty-two dollars and seventy-six cents, and that interest be paid on the same at the rate of five percent per annum, according to a resolution of the Senate of fifth September, eighteen hundred and fifty, provided that said money shall be paid by the United States and received by the Indians on condition that the same shall be in full discharge of the amount thus improperly charged to said treaty fund; provided further that in no case shall any money hereby appropriated be paid to any agent of said Indians, or to any other person or persons than the Indian or Indians to whom it is due per capita. "
"To the 'Old Settlers,' or 'Western Cherokees,' in full of all demands, under the provisions of the Treaty of sixth August, eighteen hundred and forty-six, according to the principles established in the fourth article thereof, five hundred and thirty-two thousand eight hundred and ninety-six dollars and ninety cents, and that interest be allowed and paid upon the above sums due, respectively, to the Cherokees and 'Old Settlers,' in pursuance of the above-mentioned award of the Senate, under the reference contained in the said eleventh article of the treaty of in the said eleventh article of the treaty of sixth August, eighteen hundred and forty-six, provided that in no case shall any money hereby appropriated be paid to any agent of said Indians or to any other person or persons than the Indian or Indians to whom it is due; provided also that the Indians who shall receive the said money shall first, respectively, sign a receipt or release, acknowledging the same to be in full of all demands under the fourth Article of said treaty."
The Western Cherokees were accordingly paid per capita the amount so appropriated, principal and interest, the interest amounting to $345,583.25. They receipted, as required by the statute, but upon the occasion of their being so paid, they gave to the superintendent of Indian affairs at Fort Gibson a protest, setting forth their reasons why the payment should not be received in full of all demands. The form of the receipt thus executed was as follows:
"We, the undersigned 'Old Settlers,' or Western Cherokees, do hereby acknowledge to have received from John Drennen, Supt. of Indian Affairs, the sum opposite our names respectively, being in full of all demands under the provisions of the Treaty of the sixth of August, eighteen hundred and forty-six, according to the principles established in the fourth article thereof, as per act entitled"
"An act making appropriations for the current and contingent expenses of the Indian Department, and for fulfilling treaty stipulations with various Indian tribes for the year ending June 30th, one thousand eight hundred and fifty-one."
"Approved September 30th, 1850."
The protest, after setting forth that the condition of the
Old Settlers had been a deplorable one, and that they ought not to be deprived summarily of the right to present a claim for a larger amount than had been awarded to them, and referring to the report of the Senate committee on Indian affairs, and the appropriation of the $189,422.76, and that the treaty fund should be relieved of the whole amount expended on account of subsistence as an improper charge, continued thus:
"4th. It has thus been conclusively shown that after the statement was made, under the report of the accounting officers of December 3, 1849, and the 'Old Settlers' were charged with the removal and subsistence of 18,026 Indians, the Senate of the United States decided that the subsistence was improperly charged, and in a subsequent appropriation for the Eastern Cherokees, or 'emigrant party,' it had been refunded, and the sum of $189,422.76, which had been charged to the treaty fund, has been declared to be an 'improper' charge, and payment thereof is assumed by the United States. The 'Old Settlers,' or Western Cherokees, are therefore entitled to one-third part of the money improperly charged for the subsistence of 18,026 Indians at $33.33 1/3 cents per head, which has been deducted from the amount due them in the act of appropriation made for their benefit September 30, 1850. There were some slight alterations made in the statement of accounts after the report of the committee was submitted, but they changed the amount very little, and are not worth noting."
"5th. The amount, then, due the 'Old Settlers,' or Western Cherokees, in accordance with the decision of the Senate, is the one-third part of the charge made against them for the subsistence one year after removal of 18,026 Indians, which at $33.33 1/3 cents per head, amounts to the sum of $600,856.66, the one-third part of which is $200,285.33 (two hundred thousand two hundred and eighty-five dollars and thirty-three cents). This sum, with the interest from June 12, 1838, is now due to the 'Old Settlers' Cherokees, in addition to the amount appropriated by the Act of September 30, 1850, in accordance with the principle established by the
Senate of the United States in the resolution adopted by that honorable body. Here, in one item alone, the 'Old Settler' Cherokees are declared by an act of the United States government to be entitled, in addition to the amount they are not receiving, to upwards of three hundred and thirty thousand dollars ($330,000). It is known to the 'Old Settlers' that many honorable members of Congress were aware that this item could have been added to the appropriation of September 30, 1850, and that a favorable report thereon would have been made from the office of Indian affairs, but that those who represented the 'Old Settlers,' with other friends, deemed it advisable not to make the effort then to change the statement already made, it being at the close of the session, when the least delay or interference might have defeated the appropriation, even under the first statement."
The protest then concluded with objections to the number of Indians for whose removal charges had been made, and generally to the charges for improvements, ferries, depredations, and for debts and claims upon the Cherokee Nation east, and other expenditures of similar character, as improperly made.
The United States acquired the reservation, improvements, and property in Arkansas referred to in Article 4 of the Treaty of 1828, but neither the agreement therein set forth on the part of the United States to account for and invest the proceeds thereof to the use of the Western Cherokees nor the subsequent agreement set forth in the Treaty of 1833 was ever performed. The tract of land so ceded to the United States contained 3,343.41 acres, of the value of $4,179.26.
Certain papers on file in the Interior Department were put in evidence, purporting to be copies of the proceedings of councils of the Western Cherokees, held in the years 1875, 1876, 1877, 1879, 1880, 1881, 1882, and 1883 at Tablequah, Cherokee Nation. At these councils, Bryan, Wilson, and Hendricks were appointed commissioners to prosecute the claims of the Western Cherokees against the United States, and Bryan was appointed treasurer of a fund of thirty-five
percent of the moneys that might be recovered against the United States, which sum was placed at the disposal of the commissioners for the prosecution of the claim. It does not appear that these councils were composed of persons who were ascertained to be Western Cherokees in the manner prescribed in the fifth article of the Treaty of 1846, nor did it appear that subsequent to the treaty the Western Cherokees had any organization or corporate existence under the laws of the United States or of the Cherokee Nation. The proceedings of the council held on October 25, 1883, embodied a number of resolutions which, in the view taken of the case, it is unnecessary should be repeated.
The record does not show that the Western Cherokees formally denied the validity of the Treaty of 1835 until the immigration of the Eastern Cherokees was completed, and until after there was a disagreement as to the government that should be adopted and control the Cherokee country. The earlier immigrants, known as the "Ridge Party," and the great body of the Eastern Cherokees, known as the "Ross Party," were welcome to the country as immigrants under the existing laws. Prior to 1842, it does not appear that the Western Cherokees notified the United States that they had repudiated the action of Rogers and Smith, who signed the Treaty of 1835 as delegates from the Western Cherokees. After the entry of the Eastern Cherokees, the question first at issue between them and the Western Cherokees related to the government of the country, until, in 1842, they addressed a memorial to the President setting forth their title to 14,000,000 acres of land, and their right to the full and exclusive enjoyment of the same, of which they alleged they had been deprived by the intrusion of the Eastern Cherokees under the authority of the United States.
No action on behalf of the Old Settlers appears to have been taken from the filing of the protest, September 22, 1851, until the year 1875, and in the meetings of the Old Settlers, heretofore referred to, the validity of the several treaties with the Cherokees was recognized.
On August 7, 1882, an act of Congress was approved making
appropriations for sundry civil expenses, which contained the following clause:
"The Secretary of the Interior shall investigate and report to Congress what in his opinion would be an equitable settlement of all matters of dispute between the eastern band of Cherokee Indians (including all the Indians residing east of the Mississippi River) and the Cherokee tribe or nation west; also all matters of dispute between other bands or parts of the Cherokee Nation; also all matters of dispute between any of said bands, or parts thereof, and the United States arising from or growing out of treaty stipulations or the laws of Congress relating thereto, and what sum or sums of money, if any, should, in his opinion, be paid under such settlement."
22 Stat., c. 433, pp. 302, 328.
In pursuance of the authority thus given, an investigation was directed and a report made by the Secretary of the Interior February 23, 1883, contained in Senate documents, second session, forty-seventh Congress, Executive Document No. 60. This is the claim referred to in the jurisdictional act, and shows a balance of $421,653.68, in accordance with the following account:
Account with the Whole Cherokee People
By amount appropriated by Act of July 2, 1836,
for lands under first Article Treaty of 1835 . . . . . . $5,000,000.00
By amount appropriated under third article
treaty 1836, by Act of July 2, 1836. . . . . . . . . . . 600,000.00
By amount erroneously charged for removal of 2,495
[should be 18,026] Indians at $53.33 1/3 per head. . . . 961,386.66
To amount paid for improvements . . . . . . $1,540,572.27
To amount paid for ferries. . . . . . . . . 159,572.12
To amount paid for spoliation . . . . . . . 264,894.09
To removal and subsistence of 8,026 Indians
at $53.33 1/3 per head. . . . . . . . . . 961,386.66
To debts, etc. . . . . . . . . . . . . . . 101,348.31
To additional land purchased. . . . . . . . 500,000.00
To amount invested as a permanent fund. . . 500,880.00
Deduct. . . . . . . . . . . . . . . . . . . . . . . . . . 4,028,653.45
Balance due as of date June 12, 1838. . . . . . . . . . . . $2,532,733.21
Of which amount the "Old Settlers" are
entitled to one-third . . . . . . . . . . . . . . . . . . 844,244.40
"Old Settlers" account. . . . . . . . . . . . . . . . . . . $ 844,244.40
To one-third of unexpended balance of $600,000
appropriated under Article 3, treaty
1836, viz., $39,300 . . . . . . . . . . $13,100.00
To one-third of the cost of removing
2,495 Indians at $53.33 per
head, $133,058.35 . . . . . . . . . . . . 44,352.78
$57,452.78 $ 844,244.40
Deduct. . . . . . . . . . . . . . . . . . . 57,452.78
Balance due . . . . . . . . . . . . . . . . $ 786,791.62
By interest on balance ($786,791.62) at 5 per-
cent from June 12, 1838, to September 22,
1851. . . . . . . . . . . . . . . . . . . 522,342.21
To appropriation by Act September 22, 1851 $532,896.90
To interest allowed under same act. . . . . 354,583.25
Deduct . . . . . . . . . . . . . . . . . . . . . . . . 887,480.15
Balance due "Old Settlers" . . . . . . . . . . . . . . $ 421,653.68
The principal difference between this and the prior account was in the deduction of the item of $961,386.66.
The Secretary's report was accompanied by that of the Commissioner of Indian Affairs, going over the whole subject of the claims of the Eastern and of the Western Cherokees, with accompanying reports, and, among others, two of the Senate committee on Indian affairs, one made February 9, 1881, and another March 29, 1882, the latter being a repetition of the former. These reports considered the claim of the Western Cherokees and announced the conclusion that the receipt by those Indians, under the Act of September 30, 1850, "does not preclude them from making their clam for any other sum that may be justly due them under a fair and proper interpretation of the treaties with them," and that the facts necessary to determine the justness of the claim preferred by them
"consist almost, if not wholly, of public treaties, proceedings of the Senate, acts of Congress, and the records of the several departments of the government, all of which are preserved."
The committee were of the opinion that the
case should receive a full investigation by the courts, because such an investigation involved a judicial interpretation of the several treaties, the construction of the several acts of Congress, and the examination of the settlements made and accounts stated with them under these treaties and acts of Congress.
On February 13, 1884, the case of the Old Settlers was transmitted to the Court of Claims by the Senate committee on Indian affairs under the provisions of the Act of March 3, 1863. Findings of fact were made by the court and transmitted to Congress February 9, 1885. These findings found the charges against the treaty fund to be the same as fixed in the report of August 8, 1850, and the report of 1883, except as to the number of Eastern Cherokees, whose removal was properly chargeable to said fund, the number being fixed at 17,252, instead of 18,026. After making the deductions, except as to removal and subsistence, the balance of the treaty fund was found to be, as according to the report of the Secretary of the Interior, $2,532,733.21; but if it should be determined that the cost of removing that portion of the Eastern Cherokees, who were removed in pursuance of the appropriation of $1,047,067, made by the act of 1838, should not be charged, then this balance should be reduced only by the cost of removing 2,495 Eastern Cherokees, who were removed prior to the act at $53.33 per capita, or $133,058.35. If, on the other hand, it should be determined that the Western Cherokees were properly chargeable with those removed subsequent to the Act of June, 1838, as well as before, namely, for 17,252 Cherokees, then the amount of $920,049.16 should be deducted. The account would then stand:
Treaty fund . . . . . . . . . . . . . . . . . . . . . . . . $2,532,733.21
Deduct for removal of 2,495 Eastern Cherokees removed
prior to Act of June 12, 1838 . . . . . . . . . . . . . . 133,058.35
Residuum to be divided. . . . . . . . . . . . . . . . . $2,399,674.86
One-third thereof awarded to Western Cherokees. . . . . . . $ 799,891.62
Less the payment of . . . . . . . . . . . . . . . . . . . . 532,896.90
Balance . . . . . . . . . . . . . . . . . . . . . . . . . $ 266,994.72
Treaty fund . . . . . . . . . . . . . . . . . . . . . . . . $2,532,733.21
Deduct for removal and subsistence of 17,252 Eastern
Cherokees at $53.33 per capita. . . . . . . . . . . . . . 920,049.16
Residuum to be divided. . . . . . . . . . . . . . . . . $1,612,684.05
One-third thereof awarded to Western Cherokees. . . . . . . $ 537,561.35
Less the payment of . . . . . . . . . . . . . . . . . . . . 532,896.90
Balance . . . . . . . . . . . . . . . . . . . . . . . . . $ 4,664.45
No action was taken by Congress on these findings of the Court of Claims. On February 25, 1889, the act upon which this suit is founded was approved by the President. 25 Stat. 694.
The case having come on for hearing in the Court of Claims and been duly argued and submitted, an elaborate opinion was delivered by Nott, J., November 30, 1891, and on January 25, 1892, findings of fact and conclusions of law were filed by that court. On that day, a second opinion by Nott, J., was given, the case having been reopened so far as to hear counsel and admit documentary evidence relating to the number of the Eastern Cherokees who were removed under the Treaty of 1835 and also to hear counsel with regard to the form of the decree. 27 Ct.Cl. 1, 20, 56.
The account stated by the Court of Claims is as follows:
The treaty fund . . . . . . . . . . . . . . . . . . . . . . $5,600,000.00
Less for 800,000 acres of land. . . . . . . . $ 500,000.00
For investment in the general land fund . . . 500,000.00
For improvements of individual Cherokees. . . 1,540,572.27
For ferries belonging to individuals. . . . . 159,572.12
For spoliations of individual property. . . . 264,894.09
For expenses of Cherokee committee. . . . . . 22,212.76
For removal of 16,957 Cherokees at $20 each 339,140 00
Giving as the true residuum to be divided $2,273,608.76
Due to the Western Cherokees, one-third of residuum . . . . $ 757,869.58
Less payment September 22, 1851, under the Act of
September 30, 1850. . . . . . . . . . . . . . . . . . . . 532,896.90
Leaving as the balance due the Western Cherokees. . . . . $ 224,972.68
The differences between this account and that of August 8, 1850, and February 3, 1883, are that the investment of the permanent land fund was found to be $500,000 instead of $500,880. The $101,348.31 for debts and claims upon the Cherokee Nation, allowed in the two previous reports, and the former findings of the Court of Claims, was reduced to $22,212.76 by rejecting therefrom the items of national debt, $18,062.06, and claims of United States citizens, $61,073.49. An allowance for the removal of 16,957 Cherokees at $20 each, aggregating $339,140, was made, instead of for the removal and subsistence of 18,026 Indians at $53.33 1/3 per capita, $961,386.66, as in the report of August 8, 1850, or the cost of removal and subsistence of 2,495 Indians at $53.33 per capita, $133,058.35, as shown by the report of February 3, 1883, and by the previous findings in this regard of the Court of Claims. There was added also the value of the agency reservation appropriated by the United States under the treaties of 1828 and 1833, being $4,179.26. The Court of Claims also found as a conclusion of law that interest at the rate of five percent should be allowed on the balance of the residuum of the treaty fund still due to the Western Cherokees from June 12, 1838, to the entry of judgment, but not upon the amount of $4,179.26, the value of the land last mentioned. It was also found as a conclusion of law that the receipts given by individual Cherokees did not preclude them from recovering their just appropriation of the per capita fund within the intent of the act of February, 1889, referring their claims to the court.
The court also made the following ruling:
"The findings requested by the claimants to establish the alleged facts that the Treaty of 1846 was procured as against the Western Cherokees by duress and fraud have been excluded from consideration by the court on the ground that it has not jurisdiction of such a cause of action."
Decree was entered as follows:
"It is ordered and adjudged that the claimants recover of the defendants the sum of ($224,972.68) two hundred and twenty-four thousand nine hundred and seventy-two dollars and sixty-eight cents, being a balance of the per capita fund
provided by the fourth Article of the treaty between the United States and the Western Cherokees, dated August 6, 1846, together with interest thereon from the 12th day of June, 1838, up to and until the entry of this decree, being the sum of $603,145.58, and likewise the sum of $4,179.26 for 3,343.41 acres of land in Arkansas ceded to the United States by Article 4 of the Treaty of May 6, 1828, amounting in the aggregate to the sum of $832,297.52. And it is at the same time ordered and adjudged that the said amount of eight hundred and thirty-two thousand two hundred and ninety-seven dollars and fifty-two cents so recovered by the claimants be held in trust by the government of the United States, and be paid by the proper agent of the United States to each individual of the claimants entitled to participate in the said per capita fund, pursuant to and in the manner provided and required by the fifth article of the said treaty of August 6, 1846."
From this decree both parties prayed an appeal to this Court.
Subsequently the claimants moved that in preparing the record for transmission, the clerk of the Court of Claims be instrusted to include in the transcript "all of the pleadings, orders, evidence, findings of fact, opinions of the court, conclusions of law, and decree, as the same appear of record." This motion was overruled. Application was thereupon made to this Court for a writ of certiorari to the Court of Claims to send up all of the evidence used in the trial and hearing of the case. The writ was granted, and the evidence sent up accordingly.
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