While these unhappy events were in progress Major Armstrong,
superintendent of Indian affairs, who was in Washington, submitted
to the Commissioner of Indian Affairs, at the suggestion of the
several Cherokee delegations, a proposition for the appointment of
a commissioner clothed with full powers to adjust all difficulties
between the various factions of their people.
The Commissioner replied that as the matter was before Congress and
would likely receive the speedy attention of that body, no action would
be justified by the executive authorities without first being assured
that the proposition was founded in good faith and would result in some
certain and satisfactory arrangement. He must also have assurance that
there existed a firm determination on the part of the Department and
of Congress to bring these troubles to a close before the adjournment
of the latter body. The Commissioner, however, drew up a memorandum
agreement for the signature of the several delegations of Cherokees
representing the different factions of the tribe. It provided for
the appointment of three commissioners, whose duty it should be to
examine into all matters in controversy and adjust the same, and that
all parties should abide absolutely by their decision, agreeing to
execute and sign such treaty or other instrument of agreement as should
be considered necessary to insure the execution of the award of the
commissioners.[495] This agreement was duly signed by the members of
the several delegations present in Washington, and in pursuance of
its provisions President Polk appointed[496] Edmund Burke, William
Armstrong, and Albion K. Parris commissioners with the powers and for
the purposes above indicated. These commissioners at once entered into
communication and negotiation with the three delegations representing
the different factions of the Cherokee Nation, which were then in
Washington, and the result was the conclusion of the treaty of August
6, 1846,[497] in thirteen articles, making detailed provision for the
adjustment of all questions of dispute between the Cherokees themselves
and also for the settlement of all claims by the Cherokees against
the United States.[498] This treaty, with some slight amendments, was
ratified and proclaimed by the President on the 17th of the same month;
an abstract of its provisions has already been presented. It was not
until this treaty that the Ross party ever consented in any manner to
recognize or be bound by the treaty of 1835.[499]
_Objects of the treaty._--The main principle involved in the
negotiation of the treaty of 1846 had been the disposition on the part
of the United States to reimburse to the Cherokee fund sundry sums
which, although not justly chargeable upon it, had been improperly paid
out of that fund.[500] In the treaty of 1835 the United States had
agreed to pay to the Cherokees $5,000,000 for their lands and $600,000
for spoliations, claims, expenses of removal, etc.[501] By the act of
June 12, 1838,[502] Congress appropriated the further sum of $1,047,067
for expenses of removal. As all these sums were for objects expressed
in the treaty of 1835, the commissioners who negotiated the treaty of
1846 regarded them as one aggregate sum given by the United States
for the lands of the Cherokees, subject to the charges, expenditures,
and investments provided for in the treaty. This aggregate sum was
appropriated and placed in the Treasury of the United States, to be
disposed of according to the stipulations of the treaty. The United
States thereby became the trustee of this fund for the benefit of the
Cherokee people, and were bound to manage it in accordance with the
well known principles of law and equity which regulate the relation of
trustee and _cestui que trust_.
_Adjudication of the treaty of 1835._--In order, therefore, to carry
out the principle thus established by the treaty of 1846, Congress,
by joint resolution, of August 7, 1848,[503] required the proper
accounting officers of the Treasury to make a just and fair statement
of account with the Cherokee Nation upon that basis. The joint
report of the Second Comptroller and Second Auditor was submitted to
Congress[504] after a full and thorough examination of all the accounts
and vouchers of the several officers and agents of the United States
who had disbursed funds appropriated to carry into effect the treaty of
1835, and also of all claims that had been admitted at the Treasury.