Statement of the Case. 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 8th 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 quit-claim 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 conjunc Statement of the Case. tion 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 one hundred and fifteen thousand dollars 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 two thousand dollars for a printing press, etc., destroyed; five thousand dollars 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 twenty thousand dollars 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 those 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." Statement of the Case. 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 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. 100 "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 amend VOL. CXLVIII-29 Statement of the Case. ments 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, eighteen hundred and forty-six, 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, (Sen. Rep. 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: Statement of the Case. "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 arti- of the accounting officers, will stand thus: For improvements For ferries.. $1,540,572 27 159,572 12 Making in the aggregate the sum of... 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.. 4,028,653 45 $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 |