which, being deducted from the sum of 6,647,067 00
____________
agreeably to the directions of the ninth article of
the treaty of 1846, left a balance due the Cherokee
Nation of 627,603 95
They also reported that there was a further sum of $96,999.31, charged
to the general treaty fund, which had been paid to the various agents
of the Government connected with the removal of the Indians and which
the Cherokees contended was an improper charge upon their fund. The
facts as to this item were submitted by the Auditor and Comptroller
without recommendation for the decision of the question by Congress,
and Congress, admitting the justice of the Cherokee claim, included
this sum in the subsequent appropriation of February 27, 1851.[505]
It was also resolved[506] by the United States Senate (as umpire under
the treaty of 1846) that the Cherokee Nation was entitled to the sum of
$189,422.76 for subsistence, being the difference between the amount
allowed by 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 officers of the
Treasury just recited. It was further resolved that interest at 5 per
cent. should be allowed upon the sums found due the Eastern and Western
Cherokees respectively from June 12, 1838. The amount of this award
was made available to the Cherokees by Congressional appropriation of
September 30, 1850.[507]
_Settlement of claims of "Old Settler" party._--By the fourth and
fifth articles of the treaty of 1846,[508] provision is made and a
basis fixed for the settlement with that part of the Cherokee Nation
known as "Old Settlers" or "Western Cherokees," or, in other words,
those who had emigrated under the treaties of 1817,[509] 1819,[510]
and 1828,[511] and who were, at the date of the treaty of 1835,[512]
an organized and separate nation of Indians, whom the United States
had recognized as such by the treaties of 1828 and 1833[513] made with
them. In making the treaty of 1835 with the Cherokees east, which
provided for their final and complete transfer to the country west,
then occupied by the "Western Cherokees," and guaranteed in perpetuity
by two treaties, upon considerations alone connected with them, the
rights of the latter seem to have been forgotten. The consequences
of the influx of the Eastern Cherokees were such that upon their
arrival the "Old Settlers" were thrown into a hopeless minority; their
government was subverted, and a new one, imported with the emigrants
coerced under the treaty of 1835, substituted in its place.
To allay the discontent thus caused in the minds of the "Old Settlers,"
and to provide compensation to them for the undivided interest which
the United States regarded them as owning in the country east of the
Mississippi, under the equitable operation of the treaty of 1828,
was one of the avowed objects of the treaty of 1846. To ascertain
their interest it was assumed that they constituted one-third of the
entire nation, and should therefore be entitled to an amount equal
to one-third of the treaty fund of 1835, after all just charges were
deducted. This residuum of the treaty fund, contemplated by the
fourth article of the treaty of 1846, amounted, as first calculated,
to $1,571,346.55, which would make the proportionate share of the
"Old Settlers" amount to the sum of $523,782.18. The act of September
30, 1850,[514] made provision for the payment to the "Old Settlers,"
in full of all demands under the provisions and according to the
principles established in the fourth article of the treaty of 1846, of
the sum of $532,896.96 with interest at 5 per cent. per annum. This was
coupled with the proviso that the Indians who should receive the money
should first respectively sign a receipt or release acknowledging the
same to be in full of all demands under the terms of such article.
A year later,[515] when the "Old Settlers" were assembled for the
purpose of receiving this per capita money, although their necessities
were such as to compel compliance with the conditions of payment, they
entered a written protest against the sum paid being considered in full
of all their demands, and appealed to the United States for justice,
indicating at the same time in detail wherein they were entitled to
receive large additional sums.
For many years this additional claim of the "Old Settlers" practically
lay dormant. But toward the close[516] of the year 1875 they held
a convention or council at Tahlequah, the capital of the Cherokee
Nation, and resolved to prosecute their claim to a "speedy, just, and
final settlement." To that end three of their people were appointed
commissioners with full power to prosecute the claim, employ counsel,
and to do all other necessary and proper things in the premises. The
council set apart and appropriated 35 per centum of whatever should
be collected to defray all the necessary expenses attendant upon such
prosecution and collection. Several subsequent councils have been
held about the subject,[517] and the matter continued to be pressed
upon the attention of Congress until, by the terms of an act approved
August 7, 1882,[518] that body directed the Secretary of the Interior
to investigate this and other matters relating to the Cherokees and to
report thereon to Congress. Pursuant to the purpose of this enactment,
Mr. C. C. Clements was appointed a special agent of the Interior
Department with instructions to make the required investigation.
He submitted three reports on the subject, the latter two being
supplemental to and corrective of the first. From this last report[519]
it appears that he finds the sum of $421,653.68 to be due to the "Old
Settler" Cherokees, together with interest at 5 per cent. per annum
from September 22, 1851. In brief his findings are--
1. That they received credit, under the settlement made under the
treaty of 1846, for one-third of the fund, and were chargeable with
one-third of the items properly taxable thereto.
2. Independent of article four of the treaty of 1846, the "Old
Settlers" were not chargeable with removal out of the $5,000,000 fund.
3. Independent of that article, they should not be charged out of the
$5,000,000 fund with the removal of the Eastern Cherokees, for three
reasons: (_a_) The "Old Settlers" removed themselves at their own
expense; (_b_) the Eastern Cherokees were not required to reimburse the
"Old Settlers" under the treaty of 1835; and (_c_) the Government was
required to remove the Eastern Cherokees.
4. They were not properly chargeable with the removal of the Ross
party of 13,148, because (_a_) the United States were to remove them,
and (_b_) an appropriation of $1,047,067 was made for that purpose, for
which the "Old Settlers" received no credit in the settlement under the
treaty of 1846.
5. Having received credit for their proportion of the $600,000, under
article three of the treaty of 1836, they were chargeable with their
proportion of that fund used for removal, etc., _i.e._, 2,495 Indians
at $53.33 per head, amounting to $133,058.35.
6. The Eastern Cherokees were properly chargeable with the removal of
the Ross party, and therefore they received credit for the $1,047,067
appropriated by the act of June 12, 1838.
7. In the settlement, the $5,600,000 fund was charged with the removal
and subsistence of 18,026 Indians at $53.33-1/3 per head, amounting to
$961,386.66.[520]
This report, with accompanying letters of the Commissioner of Indian
Affairs and the Secretary of the Interior, was transmitted to Congress
by the President, with a special message, on the 17th of December, 1883.
_Other questions under the treaty of 1835._--There were two other
questions about which the parties could not agree, and upon which, by
the eleventh article of the treaty of 1846, the Senate of the United
States was designated as the umpire. The first of these was whether
the amount expended for the one year's subsistence of the Eastern
Cherokees, after their arrival in the West, should be borne by the
United States or by the Cherokee funds, and, if by the latter, then
whether subsistence should be charged at a greater rate than $33-1/3
per head.
The Senate committee to whom the subject was referred for report to
that body found much difficulty, as shown by their report, in reaching
a just conclusion. They observed that the faulty manner in which the
treaty of 1835 was drawn, its ambiguity of terms, and the variety
of constructions placed upon it, had led to a great embarrassment
in arriving at the real intention of the parties, but that upon the
whole the opinion seemed to be justified that the charge should be
borne by the United States. By a strict construction of the treaty
of 1835, the expense of a year's subsistence of the Indians was no
doubt a proper charge upon the treaty fund and was so understood by
the Government at the time. In the original scheme of the treaty
furnished the commissioners empowered to treat with the Indians this
item was enumerated among the expenditures, etc., to be provided
for in its several articles, and which made up the aggregate sum of
$5,000,000 to be paid for the Cherokee country. The Secretary of War,
in a letter addressed to John Ross and others in 1836, had said that
the United States, having allowed the full consideration for their
country, nothing further would be conceded for expenses of removal and
subsistence. The whole history of the negotiation of the treaty shows
that the $5,000,000 was the maximum sum which the United States were
willing to pay, and that this was not so much a consideration for
the lands and possessions of the Indians as an indemnity to cover the
necessary sacrifices and losses in the surrender of one country and
their removal to another.
On the other hand, among the circumstances establishing the propriety
of a contrary construction may be mentioned the language of the eighth
article of the treaty, that "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." This language imports pecuniary
responsibility rather than a simple disbursement of a trust fund. In
the "talk" also which was sent[521] by President Jackson to the Indians
to explain the advantages of the proposed treaty, he mentioned that the
stipulations offered "provide for the removal at the expense of the
United States of your whole people, and for their subsistence a year
after their arrival in their new country."
It was also the common practice of the United States in removing the
Indian tribes from one locality to another to defray the expense of
such removal, and this was done in the cases of their neighbors,
the Chickasaws, Choctaws, Creeks, and Seminoles. It is a matter of
but little surprise, therefore, that a conflicting interpretation
of this treaty through a series of years should have produced grave
embarrassments.
Independent, however, of the literal provisions of the treaty of 1835,
there existed other grounds upon which to base a judgment favorable to
the claims of the Cherokees. The treaty with the supplementary article
was finally ratified on the 23d of May, 1836, and by its provisions
the Cherokees were required to remove within two years. It had been
concluded (in the face of a protest from a large majority) with a small
minority of the nation. Within the two years those who had favored the
treaty had mostly emigrated to the West under its provisions.[522] The
large majority of the nation, adopting the counsels of John Ross, had
obstinately withstood all the efforts of the Government to induce them
to adopt the treaty or emigrate. They had repudiated its obligation
and denounced it as a fraud upon the nation. In the mean time the
United States had appointed its agents under the treaty and collected
a large military force to compel its execution. The State of Georgia
had adopted a system of hostile legislation intended to drive them from
the country. She had surveyed their territory and disposed of their
homes and firesides by lottery. She had dispossessed them of a portion
of their lands, subjected them to her laws, and at the same time
disqualified them from the enjoyment of any political or civil rights.
In this posture of affairs, the Cherokees who had never abandoned the
vain hope of remaining in the country of their birth or of obtaining
better terms from the United States made new proposals to the United
States through John Ross and others for the sale of their country and
emigration to the West. Still pursuing the idea that they were aliens
to the treaty of 1835 and unfettered by its provisions, they proposed
to release all claim to their country and emigrate for a named sum
of money in connection with other conditions, among which was the
stipulation that they should be allowed to take charge of their own
emigration and that the United States should pay the expenses thereof.
To avoid the necessity of enforcing the treaty at the point of the
bayonet and to obtain relief from counter obligations to Georgia by the
compact of 1802 and to the Cherokees by the treaties of 1817 and 1819,
the proposal was readily acceded to by the United States authorities.
On the 18th of May, 1838, the Secretary of War addressed a reply to the
proposals of the Cherokee delegation, in which he said:
If it be desired by the Cherokee Nation that their own agents
should have charge of their emigration, their wishes will be
complied with and instructions be given to the commanding general
in the Cherokee country to enter into arrangements with them to
that effect. With regard to the expense of this operation, which
you ask may be defrayed by the United States, in the opinion of the
undersigned the request ought to be granted, and an application for
such further sum as may be required for this purpose shall be made
to Congress.
A recommendation was made to Congress in compliance with this promise.
Based upon an estimate of the probable cost thereof, Congress by act of
June 12, 1838,[523] appropriated the sum of $1,047,067 in full for all
objects specified in the third article of the treaty and the further
object of aiding in the subsistence of the Indians for one year after
their removal, with the proviso that no part thereof should be deducted
from the $5,000,000 purchase money of their lands.
Here was a clear legislative affirmation of the terms offered by
the Indians and acceded to by the Secretary of War. It was a new
contract with the Ross party, outside of the treaty, or rather a new
consideration offered to abide by its terms, by which the Secretary of
War agreed that the expenses of removal and subsistence, as provided
for by the treaty of 1835, should be borne by the United States,
and Congress affirmed this act by providing that no part of the sum
appropriated should be charged to the treaty fund. The appropriation
thus made proved wholly inadequate for the purposes of removal and
subsistence, the expense of which aggregated $2,952,196.26,[524] of
which the sum of $972,844.78 was expended for subsistence. Of this last
amount, however, $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 left 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 June 12, 1838, for
$611,105.55, leaving unprovided for, the sum of $189,422.76. This,
added to the balance of $724,603.37 found due in pursuance of the
report of the accounting officers of the Treasury,[525] amounted in the
aggregate to $914,626.13.
The item of $189,422.76 was appropriated, as previously stated, by
the act of September 30, 1850, and that of $724,603.37 by the act of
February 27, 1851. Interest was allowed on each sum at the rate of 5
per cent. per annum from the date of the act of June 12, 1838, with
the understanding that it should be in full satisfaction and a final
settlement of all claims and demands whatsoever of the Cherokee Nation
against the United States under any treaty theretofore made with them.
Instructions were issued[526] in the fall of 1851 to John Drennan,
superintendent of Indian affairs, to proceed without delay to make the
payment. For this purpose a remittance was made to him at New Orleans
of the sums of $1,032,182.33 and $276,179.84. The first of these sums,
he was advised by his instructions, was intended for the per capita
payment, principal and interest, to the Eastern Cherokees, or Ross
party, in pursuance of the act of February 27, 1851. The latter was for
a similar payment to the same parties in compliance with the terms of
the act of September 30, 1850, previously mentioned. These sums were to
be distributed, according to the census roll, among 14,098 Cherokees
within his superintendency, and were exclusive of the pro rata share to
which those Cherokees east of the Mississippi living within the States
of North Carolina, Georgia, Tennessee, and Alabama were entitled. For
the payment of the latter a clerk was detailed from duty in the Office
of Indian Affairs to act in the capacity of a special disbursing agent.
The payments made by Superintendent Drennan, coupled with the
conditions prescribed by the act of Congress, were very unsatisfactory
to the Government or Ross party of Cherokees. Therefore their national
council addressed[527] to the United States a solemn and formal protest
against the injustice they had suffered through the treaties of 1835
and 1846, and the statement of account rendered by the United States
under the provisions of those treaties.[528] After thus placing
themselves on record, the Cherokees accepted the money and complied
with the conditions prescribed in the act of Congress.