Claims arising under the Cherokee treaty

Rep. No. 391

28th CONGRESS HO. OF REPS.

1st Session

[To be attached to Report No. 391.]

CLAIMS ARISING UNDER THE CHEROKEE TREATY

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March 29th, 1844

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Mr. Foot, of Vermont, from the minority Committee on Indian Affairs, submitted their views upon a joint resolution referred to said committee, directing the Secretary of the Treasury to pay the sums allowed to claimants by the commissioners under the Cherokee treaty of 1835-’36, upon the presentment of the certificates issue by said commissioners, &c., as follows:

The treaty negotiated by the United States and the Cherokee tribe of Indians east of the Mississippi, for the purchase of the lands owned and occupied by that tribe in the States of Georgia, North Carolina, Tennessee, and Alabama, and providing for the removal of these people to a country west of Arkansas, was concluded at New Echota, in the State of Georgia, on the 29th of day of December, 1835; and supplementary articles thereto were agreed upon and concluded at the city of Washington, on the 1st day of March, 1836: all of which were ratified by the President and Senate of the United States on the 23d day of May, 1836. The first article of the treaty cedes all the lands owned, claimed, or possessed by the Cherokees east of the Mississippi river, to the United States, for the sum of five millions of dollars; and for and in consideration of this sum, they also release all their claims against the United States for spoliations of every kind. But, in the same article, the question is made, “whether the Senate of the United States, in a resolution fixing the value of the Cherokee lands, adopted in the month of March of the same year, intended that the five millions of dollars should include the claims of the Cherokees against the United States for spoliations?” and that question is left unsettled, to be again submitted for the decision of the Senate. By reference to the supplemental articles to the treaty, it is found that the Senate did not intend that claims and spoliations should be paid out of the money allowed for the Cherokee lands; and provision is made for a liquidation of those claims, by an additional appropriation. [See 2d and 3d articles of the supplement]

The treaty, independent of the supplement, contains 19 articles. The claims of individual Cherokees, arising under and provided for by the treaty, are enumerated in the 8th, 9th, 10th, 12th, 13th, 15th, and 16th articles of that instrument, and in the 3d article of the supplement. And the mode ascertaining and liquidating these claims is settled by the 17th article of the treaty, which is in the following words:

“Art. 17. All the claims arising under, and provided for in, the several articles of this treaty, shall be examined and adjudicated by Gen. William Carroll and John F. Schermerhorn, or by such commissioners as shall be appointed by the President of the United States for that purpose; and their

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decision shall be final; and on their certificate of the amount due to the several claimants, they shall be paid by the United States.”

This was the tribunal agreed upon between the United States and the Cherokees, when the original treaty was concluded at New Echota, on the 29th December, 1835: but in the ratification of the treaty on the 23d of May, 1836, the words “General William Carroll and John F. Schermerhorn, or” are stricken out; and after the words President of the United States, “by and with the advice and consent of the Senate of the United States,” is inserted. To this amendment of the Cherokee delegation assented; and so far as the “examination and adjudication of all claims arising under the treaty” is concerned, the 17th article (as amended) is recorded as the supreme law. The questions submitted to the committee, under a reference of the joint resolution of Jan. 3, 1844, are, “whether the board constituted by the above recited article has the exclusive jurisdiction over the examination and adjudication of all claims arising under, or provided for by, the several articles of the treaty?” “whether any department of the Government possesses a controlling or supervisory power over the judicial action of the board?” and “whether the certificates issues by the commissioners, upon their awards, to the several claimants, must not be paid by the United States, in fulfillment of a solemn treaty obligation?”

The undersigned have given the whole subject, upon which these questions are predicated, an attentive and laborious investigation. They have carefully examined the several stipulations of the treat itself- the correspondence between the Government and the Cherokee authorities, pending the negotiations which terminated in the entire relinquishment pending the negotiations which terminated in the entire relinquishment of all the lands possessed by the former east of the Mississippi, to the Unites States- the distinct propositions made by President Jackson, through the commissioners who concluded the treaty with the Indians, in December, 1835, as an inducement to these people to cede their country; and have thereby obtained much useful knowledge in relation to what was the clear understanding of the contracting parties at the time the contract was consummated, as well upon the question of construction, as in reference to the effect of its several stipulations upon the claims of the individual Cherokees. This correspondence, and the propositions submitted by the President, will be found in the 2d volume of Senate documents, 2d session 25th Congress- the latter is embraced in a letter from Rev. J. F. Schermerhorn, one of the commissioners, to the War Department, dated August 3, 1835. [See page 450, et seq. of that volume.] It is manifest, from a perusal of all the proceedings anterior to the treaty, and of the various provisions of the treaty itself, that the Government of the United States was acting under a firm determination to obtain the country of the Cherokees; and, for the purpose of securing the favor or neutrality of those opposed to the cession, ever species of claims are provided for, rendering many of the stipulations ambiguous in their terms, and conflicting with each other. This very circumstance, it has been alleged by some of the Cherokees, who were a party to the treaty, induced the nomination of William Carroll and John F. Schermerhorn as commissioners to adjudicate all claims arising under it. They were the commissioners who negotiated the treaty on behalf of the United States, knew the true intent and meaning of the contracting parties, and would

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construe the several stipulations, not technically, but according to their plain, common-sense meaning and intention.

The board, contemplated by the 17th article, was appointed by the President and Senate, on the 7th day of July, 1836. Gen. William Carroll, of Tennessee, and Gov. Wilson Lumpkin, of Georgia, were the commissioners. Gen. Carroll did not accept of the appointment, nor did he decline accepting until the 7th of October following; and on the 25th of that month John Kennedy was appointed his successor. The first communication to the board, from the War Department, informing the commissioners of the duties confided to them by their appointment, is dated July 25, 1836. [See page 149 of Senate document already referred to.] This letter, signed by C.A. Harris, Commissioner of Indian Affairs, lays the ground-work for the execution of the Cherokee treaty. It commences as follows: “I have the honor, by direction of the Secretary of War, to communicate to you by the commissions transmitted to you on the 7th instant. I present them as suggestions, as, from the very nature of the duties, very much must be left to your discretion and judgment.” In relation to the adjudication of claims especially committed to the board under the 17th article, the third paragraph of the same letter says, “the examination of these debts and claims is confided to you, under the 17th article of the treaty, which stipulates that tour decision shall be final, and the payments be made, upon your certificate, to the several claimants.” To exhibit still further the independent character of the board, Commissioner Harris, acting under direction of the Secretary of War, (Governor Cass,) says, in the same communication, (fourth paragraph from the last,) “I have thought it inexpedient for me to advert to the order, time, or place, in which these duties shall be performed.

The undersigned have deemed it proper thus to bring before the House the views entertained by the Executive Department of the Government, in relation to the powers conferred upon the Cherokee board by the 17th article of the treaty, when that tribunal was constituted in 1836, and the terms of the compact fresh in the minds of all concerned, in order that they may be compared with the views entertained and enforced by the Executive Department at and since the re-organization of the board in September, 1842, of which they ask relief of Congress.

As already stated, the Cherokee board was not organized until after the resignation of Gov. Carroll, and appointment of Mr. Kennedy in October, 1836. A disbursing officer was then immediately appointed, with instructions to report to the commissioners at the New Echota, Georgia, and pay to the several claimants the amount of their awards. The commissioners were apprized of the appointment of this officer in a letter addressed to them from the Indian Office, here, dated November 4, 1836. (See Senate document above cited, pages 198 and 199.) In this letter, the Secretary of War again recognises the controlling power of the board; and in addition to the duties assigned by the words of the treaty, the commissioners are invested with the supervision of all disbursements to claimants. When the register upon which the payment is to be made is completed

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exhibiting the amounts due, let corresponding numbers be affixed to the name of each claimant upon the register, and the register of improvements or claims, according to the class to which he belongs. In addition to the receipt which you were requested to take in the letter of July 25th, let a book of blank certificates of the enclosed form be printed. Whenever a payment is made, let the same number, the name of the payee, the amount paid, the article of the treaty authorizing the payment, and the date of the treaty, corresponding with the filling up of the certificate, be entered in the margin. Let the claimant sign another receipt on the back of the certificate in the presence of one of you, and the disbursing officer will pay the amount. These certificates, signed by either of you, will constitute his vouchers.”

Appended to this letter, as printed, is the form of a certificate referred to as being enclosed, which corresponds in matter and substance with the certificates adopted and issued by the board at its first session. The undersigned have ascertained, by reference to the records, that 9,448 certificates were thus issues, and paid in full by the disbursing officer, amounting to $1,460, 140 19 ½, as is shown by a recent report from the Commissioner of Indian Affairs. The whole amount awarded to claimants by the board at its first session, for reservations, improvements, and spoliations, and paid by the United States, according to a statement embraced in a report made Mr. Cooper, chairman of the Committee on Indian Affairs, on the 2d of March, 1843, is $2,217,328 90! (See report No. 288, H. of R., 3d session 27th Congress, page 52.) Beside this sum actually paid, the same report (page 54) exhibits $13, 287 06 as remaining in the hands of P.M. Butler, Cherokee agent west, who was then, and has since been, engaged in paying the awards made by the board, in full, to the several claimants. It does not appear, so far as the undersigned have been able to ascertain, that a single decree, made by the board at its first session, in pursuance of the 17th article of the treaty, and a certificate issues thereupon, has been reviewed or set aside; but, on the contrary, all the certificates or requisitions so issued, were paid on presentation by the proper disbursing officer of the treasury. The only cases acted on by that board, which were reviewed by the War Department, as shown by the records of the Indian Office, are those of Sutton Stevens, Charles Thompson, Bold Hunter, and William Barnes; and in these cases the decision of the board, was not made final, and no certificate issued to the claimants in the conformity to the provision of the 17th article. The claim of Charles Thompson was for a reservation taken under a treaty of 1817, and for which payment is provided by the 13th article of the treaty 1835. Instead of ascertaining the value of the land, and awarding the amount in money, the commissioners decided in favor of the claim, but recommended that the land should be confirmed tot eh claimant. Under this decree the claimant could not be paid as stipulated by the 17th article of the treaty, and he brought his case before the Secretary of War, (Mr. Poinsett,) and it was referred to the present Commissioner of Indian Affairs, who gave his opinion, that Thompson was entitled to the value of the reservation, but did not say how or in what manner that value should be ascertained and paid. This opinion was endorsed as approved by the Secretary, but no steps were taken to ascertain the value of the reservation, or to pay the claim, by the last administration. All the papers in the case, embracing the ascertained value of the land, were afterwards referred to Mr. Spencer, as Sec-

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retary of War, at the instance of the claimant’s attorney; upon which he made a decision, dated April 6, 1842, a portion of which is quoted as follows: It seems to me to require only the reading of the 17th article of the treaty to be satisfied that the whole subject of claims arising under the treaty was referred exclusively to the board of the commissioners, and that no money can possibly be paid without their decision.” And in adverting to an endorsement by the Secretary Poinsett, of the opinion above referred to, Secretary Spencer adds: “I feel bound to say, that while I respect, and intend to follow, the decisions of a predecessor in all cases affecting the administration of any law conferring authority on this department, yet I cannot consent to be thus bound in relation to a question whether any such authority is conferred. I am unwilling to exercise any authority, unless convinced myself that it is possessed! I must, therefore, decline acting in this case, and leave it, with the numerous other claims under the Cherokee treaty, to be hereafter disposed of by a legally constituted tribunal.”

The undersigned have gone thus into detail in bringing this decision in review of the House, because it has an important bearing upon the acts of the War Department under the same head, subsequently to the re appointment of the board in September, 1842, which will be commented upon in their proper place; and because the claim of Charles Thompson is one of the five cases referred to by the Commissioner of Indian Affairs, in the reply made by the Secretary of War to the resolution of inquiry adopted by the Senate on the 20th of December last, as being a claim “reversed or modified,” which was adjudicated by the board at its first session. It will be seen that the claim was not adjudicated, nor was a certificate issued under the 17th article creating the board; and Secretary Spencer positively declines acting on the case, for the want of legal authority.

The board of commissioners first appointed in July, 1836, and organized in November of that year, adjourned on or about the 5th day of March, 1839, having been upwards of two years and three months in session. It was re-organized in November, 1842. General John H. Eaton, of Washington city, and James Iredell, esq., of North Carolina, were appointed the commissioners on the 5th September; but Mr. Iredell declined to accept the appointment, and on the 8th November, 1842, Edward B. Hubley, esq., of Pennsylvania, was appointed in his place. The renewal of the commission was produced by a join resolution, introduced in the Senate on the 7th March, 1842, by Hon. A. H. Sevier, direction the President of the United States to appoint three commissioners to adjudicate the claims of the Cherokees residing east of the Mississippi river. This resolution was referred to the Committee on Indian Affairs; and on the 24th day of the same month, (March,) the Hon. Mr. Morehead, fro that committee, made the following report:

“That, by the 17th article of the treaty referred to, it is provided that ‘all the claims arising under, or provided for by, the several articles of the treaty,’ &c., [reciting the 17th article.] The committee are informed that there are important claims arising under, and provided for by, the several articles of the treaty, which were not adjusted by the board of commissioners heretofore appointed for that purpose; and it is believed that the justice to the claimants required that those claims should be examined, and, if found to be just, that they should be paid. But the committee are clearly of opinion that the President of the United States has full power, in virtue of the before-mentioned article of the treaty, to renew the com-

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mission at its pleasure, until its objects are fully carried into effect. The committee, therefore, refrain from recommending any such action on the part of the Senate, and ask to be discharged.”

Upon this expression of opinion by the Senate, (in which the Secretary of War concurred, as is shown by his opinion in the case of Thompson above referred to,) the department asked for an appropriation of $13, 500, based upon an estimate from the Indian bureau, for the purpose of defraying the expenses of the new commission; and on the 24th of August, 1842, the appropriation for that object was made by Congress. The board was then renewed, as has been already shown; and, about the last of November following, it organized in this city, and proceeded to business.

The grievances of which the Cherokees complain, and to redress which the join resolution referred to the committee, and now under consideration, was introduced in the House, commenced at this period. As set forth in a memorial to the President of the United States, signed by certain Cherokee claimants in the city of Washington, dated January 5, 1843, it is charged “that instructions have been issued by the War Department prescribing rules for the government of the board, and direction its final action in the performance of duties assigned to it alone by the treaty. For a copy of these instructions we [the claimants] have applied to the Indian Office and to the board, and our application has been refused. Instead, therefore, of having the advice and counsel of this tribunal, which is the supreme arbiter between the United States and the Cherokee nation and individual Cherokee claimants, e are left, as the weaker party, to grapple, unaided and unadvised, with the most powerful in the reference, without having even the rules of evidence or mode of action made known to us, by which the board is to be governed in its proceedings.” The memorial proceeds in its complaint, by asserting “that the board of commissioners, controlled by these instructions from the War Department, refused to issue certificates to claimants upon adjudicated claims; and, instead thereof, submitted its report upon allowed claims to the Commissioner of Indian Affairs; that the first case adjudicated by the board was so reported on the 29th December, and was then (January 5th) in the hands of the Secretary of War, (Mr. Spencer,) who had sent for all the papers in the case, for the purpose of examining it himself, and determining whether the decision of the board was justified by the facts of the case and the testimony adduced.”

These and other grievances are set forth in the memorial, by which the complaints declare that the power now assumed by the department “is arbitrary, and in violation of the letter and true intent and meaning of the treaty;” and show, by public documents, that it is in direct contravention of the course pursed by two preceding administrations in the execution of the trust confined by the 17th article. From this alleged oppression to the memorialists then asked the President of the United States to relieve them, by directing “that the action of the Cherokee board should be final, as stipulated by the treaty, and the certificates issued should be paid on presentation, as was the uniform practice during the first session of the board, under whose decrees (which were all paid in full) more than nineteen-twentieths of all the claims arising under the treaty have been liquidated.” On the 15th of the same month, (January, 1843,) the complaints, having received no response to their appeal to the President, and the Secretary of War still detaining the award of the board for

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The purpose of reviewing and setting it aside at his pleasure, another communication, in the form of an appeal, was addressed to his excellency. This appeal was found by the claimants, some days afterwards, in the War Department, with the following endorsement, in the handwriting of the President:

“This is a matter with which I have nothing to do. If the Secretary sees cause to revise his opinion, and alter it, so well; if not, the parties must take their case to Congress. –J. T.”

The Cherokee claimants then brought the question before Congress by a memorial. Dated January 24, 1843, in which they embrace a copy of the memorial addressed to the President, and ask redress from the Congress. This memorial, with the accompanying papers, was referred to the Committee on the Indian Affairs on the 26th of the same month. –(See Doc. No. 93 of that session.) The Cherokees, in this memorial to Congress, again earnestly protest against the exercise of any controlling power by the Commissioner of Indian Affairs, or the Secretary of War, over the judicial action of the board. They assert that such power was intended to be denied by the parties to the treaty, and was absolutely prohibited by the 17th article; but that, notwithstanding this prohibition instructions had been given to the board, by the War Department, which made the commissioners mere examining clerks, under the control of the Commissioner of the Indian Affairs and the Secretary of War; and that these instructions, although acted upon the board, and made the rule for construing the treaty, and the law under which claims must be decided, were, by order of the Indian office, withheld from the claimants. In consequence of these complaints, a resolution was adopted I the House of Representatives on the 24th January, 1843, calling upon the Secretary for the instructions; and on the 1st of February they were received, enclosed in a letter from the President, and referred to the Committee on the Indian Affairs. – (See Doc. No. 110 of that session.)

The Committee on Indian Affairs, to whom the Cherokee memorial was referred, on the 9th day of February, 1843, reported a join resolution, in substance the same as the one now under consideration, directing the Secretary of the Treasury to pay such sum or sums of money as may be awarded to claimants by the board organized under the 17th article of the Cherokee treaty of 1835, and that the certificates issued to claimants, as required by said article, shall be proper and sufficient vouchers upon which payment shall be made. This resolution passed both Houses of Congress on the 2d of March, the day before the last of the session, but was not approved by the President. It was retained in his possession until after the commencement of the present session, when, on the 18th of December, he sent a message to the House of Representatives assigning his reasons for withholding his signature. These reasons appear to be- First. “The balance of the fund provided by the Congress for satisfying claims is wholly insufficient to meet the claims still pending. To direct the payment, therefore, of the whole amount of those claims which happened to be first adjudicated, would prevent a ratable distribution of the fund among those equally entitled to its benefits. Such a violation of the individual rights of the claimants would impose upon the Government the obligation of making further appropriations to indemnify them; and thus Congress would be obliged to enlarge a provision, liberal and equitable,

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which it had made for the satisfaction of all the demands of the Cherokees.” And, second. “If no such indemnity should be provided, then a palpable and very gross wrong would be inflicted upon the claimants who had not been so fortunate as to have their claims taken up in preference to others. Besides, the fund having been appropriated by law to a specific purpose, in fulfillment of the treaty, it belongs to the Cherokees; and the authority of this Government to direct its application to particular claims is more than questionable.” And, third. “The further direction, that certificates required to be issued by the treaty, and in conformity with the practice of the board heretofore, shall be proper and sufficient vouchers upon which payments shall be made at the treasury, is a departure from the system established soon after the adoption of the constitution, and maintained ever since. That system required that payments, under the authority of the department, shall be made upon its requisition, countersigned by the proper Auditor and Comptroller. The greatest irregularity would ensure from the mode payment prescribed by the resolution.”

These are the objections made by the President of the United States to the joint resolution passed at the last session, directing payment of the awards made by the Cherokee board. It thus appears that the claimants firs appealed to the President to relieve them from what they termed “an unjust and unwarrantable assumption of power by the Secretary of War,” in reviewing the decrees of the board, and refusing to pay upon its awards; and to this appeal the President responded: “This is a mater with which I have nothing to do. If the Secretary sees cause to revise his opinion, and alter it, so well; if not, the parties must take their case to Congress.” The parties did take their case to Congress, and obtained relief, so far as legislative action could relieve them, by the passage of the joint resolution referred to, to which the President afterwards refused his sanction. It appears, however, that on the day of the resolution passed Congress, the commissioners commenced issuing certificates upon their decrees, in conformity with the provision of the treaty and the form adopted by the board at its first session. These certificates were then retained in the possession of the claimants until the new Secretary, (Mr. Porter,) who had just been appointed, should take charge of the department, for the purpose of brining the question before him de novo. He, however, refused to take any order upon the certificates until a report of the proceedings of the board, in each case, was brought before for the revision; assigning as a reason for assuming the power of reviewing the decrees of the commissioners, that his immediate predecessor (Mr. Spencer) had claimed that power as existing in the department, in which opinion he (Mr. Porter) concurred. But, as has been shown, no certificate had been presented to Secretary Spencer, drawn up in accordance with the form prescribed under authority of the 17th article; and hence no decision has been made by him on the new question thus presented.

Secretary Spencer had, however, made a decision upon a REPORT of the board, referred to him on the 29th December, 1842, as has been shown upon which no certificate had issued, in which he claims to possess the power of revising the proceedings of the commissioners. This does not comport with his opinion in the case of Charles Thompson, appealed to him by the claimant. In that opinion, (which is inserted in this report, and dated April 6, 1842, five months anterior to the organization of the

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New commission,) he denies the existence of any inherent power in the department “to revise or review the decrees of the commissioners appointed under the 17th article of the Cherokee treaty,” and says: “I must, therefore, decline acting in this case, and leave it with the NUMEROUS OTHER CLAIMS, under the Cherokee treaty, to be hereafter disposed of by a LEGALLY CONSTITUTED TRIBUNAL.” This opinion he must either have forgotten, or deemed erroneous, when he afterwards assumed the power of revising the decrees of this tribunal, and of setting them aside.

In the reply made by the late Secretary, on the 16th January last, to a series of interrogatories, propounded by a resolution of the Senate of the 20th December, he communicates his reasons fully for exercising a supervisory control of the judicial action of the board. The direct question is asked in this resolution, “by what law or authority is the power conferred o the War Department to review the decisions of the Cherokee board, and set them aside or annul them?” An elaborate answer is given to this question by the Commissioner of Indian Affairs, (Mr. Crawford,) whose report in the case is incorporated in the communication of the Secretary, and made part of his reply to the Senate’s inquiry upon this point. Mr. Commissioner Crawford says: “The proceedings and the statement of facts in the case are reviewed for the single purpose of ascertaining whether the commission has jurisdiction: it it had not, its acts are void.” “This power the Secretary of War possess, by his relation, has the head of the executive office, to the Indian affairs of the country, and to their administration.” “The power is inherent which is necessary to discharge an imposed duty, unless prohibited by law. By the law of 1832, the Commissioner of Indian Affairs has direction and management of all Indian affairs, and of all matters arising out of Indian relations, under the direction oft eh Secretary of War, and agreeably to such regulations as the President may prescribe.”

The Commissioner says much more in reply to the question proposed than is here quotes; and argues to prove that the treasury would be in jeopardy, if awards made by any board of the commissioners were ordered to be paid without undergoing the searching examination of the War Department. The above, however, embraces all of his answer relevant to the question asked, and cites the “law and authority” by which, in his opinion, the War Department derives the power to review or revise the proceedings of the Cherokee board. An opinion of the late Attorney General (Mr. Legare) is also introduced by the Secretary of War, to sustain him in the position he has assumed in reference to the jurisdiction of the board, and his power to revise and annul its decrees. This opinion was given on the 19th of May, 1843, upon a reference made by the Secretary of War of some adjudicated cases. On the question of jurisdiction, Mr. Legare says: “No rule of law is better established than that every special, limited, or inferior authority, judicial or executive, must, before it take a single step in any matter, allege and prove its jurisdiction. The onus probaudi is upon it, and those claiming through it. The fact that their award is binding, right or wrong, must be established by evidence aliunde, not by the award itself; and it must be established before they proceed to the award, or before anybody proceeds to do any act under it. Had these gentlemen passed sentence of death upon an Indian, they, and all engaged in executing their judgment, would have been

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guilty of murder. Their opinion of their own jurisdiction would have been on plea in bar.”

The undersigned have no, with much care, and it as brief a manner as possible, presented all the proceedings and material facts bearing upon the question at issue- a question which has become exceedingly complicated, and involved matter of serious importance. They have presented a condensed view of the treaty which gave rise to the question; of the construction placed upon its provisions, and the manner of its execution under the administration of President Jackson, by whom it was negotiated, and under the administration of President Van Buren. They have shown the time and mode of organizing the board in 1836, and its adjournment in 1839, and of its reorganization in 1842, under the present administration. They have also shown that a different construction is now placed upon its several stipulations; and the power conferred upon the commissioners appointed under the 17th article, recognised as being supreme by the two preceding administrations, is denied by the present one, and the final decision of claims confided to the head of the War Department. This portion of the question, exhibiting one Executive setting aside a decision of his immediate predecessors, upon a plain stipulation of an Indian treat, so extensively acted upon as in the present instance, presents a case of peculiar importance; and the reasons assigned by the present Executive and his war minister for doing so, have been fully introduced and referred to in this report. It now becomes the duty of the undersigned to review the cases as presented, and to give their opinion, formed after mature deliberation.

The Cherokee treaty of 1835, upon its ratification by the President and Senate on the 23d day of May, 1836, became the supreme law, in reference to all matters therein contained. The 19th and last article says: “This treaty, after the same shall be ratified by the President and Senate of the United States, shall be obligatory on the contracting parties.” It was so ratified, as shown, by the President and the Senate, and has never since been altered or annulled by the contracting parties; nor does it appear that the Indian party have ever applied, or been applied to, upon the subject. The 17th article of the treaty, then, is the LAW under which the Cherokee board has been created; and it is, in the opinion of the undersigned, a tribunal possessing powers, within its legitimate sphere of action, co-extensive with those of the Supreme Court of the United States. The Executive has no legal or constitutional right to direct or restrict the judicial action of a tribunal this constituted, when confined within the limits prescribed by the treaty. The constitution enjoins it as a duty upon the President, that he shall cause “the laws to be faithfully executed.” In reference to this treaty, which is a supreme law, he has performed this duty by appointing the commissioners therein provided for. When he had done this, the special trust confided to him was discharged, and his functions ceased, unless the tribunal thus created refused to execute the law, or perpetrated some flagrant and palpable violation of it; when he might exercise the power of removal from office, or of suspending their proceeding until a proper investigation of their conduct could be made. But, whilst the commissioners are permitted to exist as a board, he cannot prescribe the boundaries of their jurisdiction, revise or rescind their decrees when rendered, or dictate rules and principles which shall control their judicial action.

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In support of opinion thus expressed, the undersigned will now cite high authority. And, in the first place, they will refer to an opinion of Attorney General Butler, which involved the direct question at an issue.

This opinion appears to be elicited by several communications from the War Department, requesting his opinion on questions then pending before the board of commissioners under the 17th article of the Cherokee treaty, then in session. It is dated “Attorney General’s Office, August 27, 1838,” and will be found in the 6th volume of Executive Documents, 2d session 26th Congress, page 1209, published with the opinions of all the Attorney Generals of the United States, from the commencement of the Government down to the 1st of March, 1841, and declares as follows:

“The points referred to in these communications have, most of them, been examined by me in the opinions heretofore transmitted to your department. It appears, however, fro the extracts from the letter of the commissioners, enclosed in your letter of the 14th instant, that my opinion of the 26th of May last is unsatisfactory to the commissioners, and that they desire reconsideration of it. In respect to that opinion, as well as to the former communications from this office on the general subject, I will observe that I am by no means surprised that they do not, in all respects, meet the views of others, more familiar than I am with the probable intent of the makers of the treaties referred to, and with the practical construction which has been given to those instruments, nor that incongruities should be detected in the views presented in those opinions on the various points discussed therein.

“From the great obscurity of the treaty provisions, and my want of accurate knowledge on many parts of the subject, I have found it exceedingly difficult (and in some cases almost impossible) to satisfy myself on the questions referred to me; and it was, therefore, not to be expected that I should be able, in every instance, to satisfy others.

“I will also observe, that the treaty provides that the claims arising under the treat shall be examined and adjucated by commissioners to be appointed by the President, by and with the advice and consent of the Senate; and that their decisions shall be final. I an satisfied that all opinions given in this office, in respect to the claims, have been extra-official and unauthorized; the Attorney General having no power to give an official opinion on the request of the head of a department, except on matters that concern the official powers and duties of such department. The character of the Cherokee board of commissioners is, in principle, the same with that of the boards appointed under the conventions with Spain, Naples and Frances; and it was never supposed, in either of those cases, that the Attorney General could be called on, through the head of any department, to examine and discuss the various claims litigated before them. Commissioners or agents are sometimes appointed by the War Department, in the transaction of its concerns with Indian tribes, who stand in such a relation to the department as to be authorized to call on it for advice and assistance; and, in these cases, the department may call for the advice of the Attorney General on questions of law. When the applications of the Cherokee commissioners were first sent from your departments, it did not occur to me that they did not stand in this latter relation; and I therefore, from time to time, investigated such questions as were pre-

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sented, in the hope that my views might render them some aid in the execution of their important and difficult task.”

The undersigned have introduced the above opinion at length, because it embraces within its grasp the whole question under discussion. It is a clear and unequivocal exposition of the true character of the Cherokee board, and it is important in other respects. Mr. Butler was appointed Attorney General in November, 1833, and resigned in September, 1838; he was, therefore, a member of President Jackson’s cabinet, and no doubt consulted with regard to the terms of the treaty of 1835, before they were agreed upon. He held his office upwards of two years after the ratification of that treaty, and, during the first session of the board; he had frequently acted as Secretary of War ad interim, and was as well acquainted, it is presumed with the subject-matter of the treaty, as any other officer of the Government. Yet this high law officer of the Government, with all his practical information, modestly acknowledges that, if he even had the legal right to give the opinions he had previously advances, it by no means surprised him “that they did not meet the views of others more familiar with the probable intent of the makers of the treaty referred to, and with the practical construction which had been given to it.” And he acknowledges, further, that, “from the great obscurity of the treaty provisions, and his want of accurate knowledge on many parts of the subject, he found it difficult-in some cases, almost impossible- to satisfy himself upon the questions referred to him.”

This is the last opinion given by the Attorney General Butler in relation to the execution of the Cherokee treaty; and in this, with all his knowledge and great experience upon the subject, he expressly declares “that no department of this Government has the right to interfere with, or control the action of, the Cherokee board;” and that all his opinions previously given were “extra-official and unauthorized.” Yet a Secretary of War, only a few weeks or months in office, has since, under a new construction of the treaty, assumed the power of revising the decisions of the board, and setting them aside at his pleasure. The undersigned have occupied considerable space in presenting this opinion of Mr. Butler, because it involved the precise case in controversy. They will, however, cite other opinions, by which the same principle is recognized. An award, rendered by the commissioners appointed under the 7th article of the treaty with Great Britain of 1783, was objected to by some of the parties claiming; and the question was brought before Attorney General Breckenridge, “upon an application to set the award aside.” Mr. B.’s opinion is dated August 7, 1805, in which he says: “This would be going into a re-examination of the matters referred to, and decided on by the commissioners, of which, under the treaty, they had the final and exclusive jurisdiction.” “The Government has only to see that the moneys are paid to those in whose favor they were awarded, or to those legally entitled to receive under them.” (See vol. Attorney General’s Opinions, page 97.) On page 106 of the same volume, the same principle is maintained, by an opinion given by the Attorney General Rodney, June 22, 1807, upon a question arising under the French treaty.

The undersigned will now cite a decision made by Mr. Poinsett, Secretary of War, bearing directly on the point in question. After the adjournment of the Cherokee board, in 1839, an appeal was made tot eh President of the United States, by Messrs. Underwood, Hansell, and

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Rockwell, from a decision of the board, upon a claim preferred by them for legal services rendered by the Cherokee nation prior to the ratification of the treat, for which provision is made by the 10th article. This claim, it appears, had once been decided, and then opened for re-hearing; and a suggestion made to refer the claim to an arbitration of lawyers, for the purpose of fixing the amount which should be allowed, according to the customary fees of the country, for similar services. The commissioners refused to adopt and act upon this suggestion; and upon a re-hearing of the case, they made their first decision final.

The President referred the subject tot eh Secretary of War, (Mr. Poinsett,) who made his report on the case of the President on the 14th February, 1840. In this report, the question of jurisdiction, under the 17th article of the Cherokee treaty, is fully presented and discussed before the President of the United States. After introducing the case, by referring the President to the report of the Commissioner of Indian Affairs, Secretary Poinsett says: “But I beg leave further to remark, that, in whatever light the action of the commissioners in these claims may be regarded, it appears to me that there is no power in the Government of the United States to revise their decisions, or to dispose of these Indian funds in any other manner than [that] specified in the treaty.” The Secretary then cites the 17th article, by which provision is made for the adjudication of all claims arising under the several stipulations and gives his opinions as follows: “In no part of the treaty is the power vested in the President to examine and adjudicate such claims; on the contrary, the power to revise the proceedings of the board is expressly taken away from him. The first question to be considered is, whether, assuming that it was so intended, the President can, for any reason, review and revise it. It appears that the commissioners gave a qualified decision, in the first place, reserving to themselves the right to reviser their proceedings, and make a further allowance, &c. This examination was subsequently made, and a majority of them refused any further compensation to the claimants. The third commissioner differed from his colleagues; but the opinion of a majority of the board must stand for its decision. Any interference of this department was irregular, and cannot invalidate the action of the commissioners. A majority of them refused to acceded to the suggestions made to them by the department, which they had an undoubted right to do. There does not, therefore, appear to be any reason for doubt upon the first point. The 17th article, already quoted, disposed of the second, by an express declaration that the decision of the commissioners shall be final.”

Upon this report, the President of the United States made the following endorsement:

“The President concurs in the view taken of the subject by the Secretary of War, and directs that a cop of the within, and of the report of the Commissioner of Indian Affairs, be sent to Col. Rockwell and Mr. Hansell. –M.V.B.

The undersigned have now shown, clearly and conclusively, from the public records, that no money could be paid to claimants, under the Cher-

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okee treaty of 1835, except upon awards made by commissioners appointed under the 17th article. Their authorities are found in the committal of the trust, first to a board organized in November, 1836, by the Hon. Lewis Cass, Secretary of War, under the direction of President Jackson, and its execution upon the construction then put upon the provisions of the treaty throughout that and the succeeding administration; by the opinion of an Attorney General, who held his high place when the treaty was negotiated, and had been officially connected with its execution, through a period of give years; and by the decision of Secretary Poinsett, approved by President Van Buren, eleven months after the first commission was dissolved, and only a year before the present administration came into power. The question of jurisdiction, thus settled, establishes the following points: 1st. “All the claims arising under, and provided for in, the several article of the Cherokee treaty, are referred, exclusively tot eh arbitration of commissioners appointed under the 17th article.” 2d. “That the decision of such board of commissioners is FINAL; and that their decrees must be paid in full by the proper disbursing officer of the treasury, upon a certificate issued by the board, which shall constitute his voucher.” 3d. That, “the character of the Cherokee board of commissioners is, in principle, the same with that of the boards appointed under the conventions with Spain, Naples, and France,” and cannot be interfered with by any department of this Government, “in the examination and discussion of any claims litigated before them.” 4th. “That there is no power in the Government of the United States to revise their decisions, or to dispose of the Indian funds in any other manner than that specific in the treaty; and in no part of the treaty is the power vested in the President to examine and adjudicate such claims on the contrary, the power to revise the proceedings of the board is expressly taken away from him.”

Under the construction thus placed upon the Cherokee treaty, it appears that upwards of two millions of dollars had been paid at the close of the last administration; upon awards made by the board at its first session; and every claimant was paid in full. The present Executive has disregarded the decision of his predecessors upon this question; and, by a construction of his own, or of his war minister, the power to revise the decrees of the commissioners has been conferred upon the Secretary of War and the Commissioner of Indian Affairs; and he has also willed that only one-third of allowed claims shall be paid. Under this assumed power, the Secretary of War has, upon every certificate presented for payment since the re-organization of the board in November, 1842, called for all the proceedings in the case; and out of awards amounting to $26,836 16 thus presented, $16,306 16 have been rejected; and only $2,970 62 have been paid, in consequence of the pro rata established by the President.

The undersigned are of opinion that there is no instance on record of an executive officer reversing the decision of his predecessor, solemnly made and recorded, until it was done by the present Executive. In speaking of the authority of one Executive to review and unsettle an act of his predecessor, Attorney General Wirt, in an opinion given on the 1st of October, 1826, says: “If it has such authority, the Executive which is to follow us must have the like authority to review and unsettle our decisions, and to set up again those of our predecessors; and, upon this principle, no question can be considered as finally settled.” [See volume of Attorney Generals’ Opinions, page 554.] A similar opinion is given by

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Attorney General Taney, in reply t a reference of the Secretary of War, dated September 10, 1831. [Page 841 same volume.]

The reasons assigned by the President for disregarding the rule here laid down, and in support of his refusal to sign the joint resolution of last session, which directed the execution of the Cherokee treaty upon the principles established and sustained by two preceding administrations, have been already inserted in this report. In the first place, he undertakes to predict that the funds yet in the treasury appropriated to pay claims arising under the treaty are holly insufficient for that object; and intimates that a “ratable distribution is contemplated.” This objection is not tenable. There is no ratable or pro rata payment contemplated by the treaty; every claim arising under it is to be paid in full. His second objection is, that if certificates were no paid in full as presented, “a very gross wrong would be inflicted upon claimants who were not so fortunate as to have their claims taken up in preference to others; and that the fund having been appropriated by law for a specific purpose, it belongs to the Cherokees; and the authority of this Government to direct its application to particular claims is more than questionable.” The undersigned are at all to know what specific object is here intended by his excellency. The contracting parties to the treaty were the United States and the Cherokee nation. By this contract, the latter ceded all their lands east of the Mississippi river, for which the former stipulated to pay a certain amount in money; and part of this consideration was to be applied to the liquidation of claims held by individuals of the nation against the United States. In fulfillment of this last stipulation, upwards of two millions of dollars have been applied to the liquidation of such claims, out of the same fund of which the small balance yet remains in the treasury. The claims recently adjudicated, upon which certificates have been issues, are of the same “nature and description” of those heretofore adjudicated and paid, to which we have alluded. If a “very gross wrong” has been sustained by any portion of the claimants, it is by the whole of the board in 1839m and to settle which the board was re-organized in the fall of 1842. It is too late now to avert the infliction of wrong, by establishing a pro rata distribution. If payment upon a pro rata basis could be fixed by any construction of the treaty, it should have been done, in the first instance, when payment commenced; but, upon no principle of law or justice can the Government, as guardian for the faithful execution of this trust, resort to it now, when upwards of nineteen-twentieths of the common stock has been exhausted in making payments to the committee, that but little over two hundred thousand dollars yet remains in the treasury, of the fund heretofore applied to that payment of these claims; and a very gross and palpable wrong would be inflicted by resorting to a ratable distribution of this fund now, even if it was found insufficient to meet all the demands accruing under the treaty. The Cherokees have fully complied with their part of the contract, by a relinquishment to the United States of all their lands east of the Mississippi; and this Government is bound in honor and good faith to fulfil its part of the compact. But the undersigned are decided in the opinion, from the testimony before them, that the balance in the treasury will be

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more than sufficient to pay all the claims that are or can be allowed by a properly constituted tribunal.

The undersigned are constrained to say, therefore, that the President has here failed to present sufficient reasons for overthrowing the decisions of his predecessors, upon which the execution of the Cherokee treaty has heretofore been conducted. They cheerfully admit the proposition, as a general rule, that the fund, being appropriated by law for a specific object, and belonging to the Cherokees, the authority of this Government to direct its application to particular claims is “more than questionable.” But the payment of these adjudicated claims, as has been shown, does not fall within this rule. The undersigned, however, beg leave to say, that a payment made out of the Cherokee fund in September, 1841, to John and Lewis Ross, for removing and subsisting a certain portion of the Cherokee nation in the fall and winter of 1838, was, in their opinion, a violation of this rule. By reference to the printed reports upon this subject, it appears that $581,346, 88 was paid to John Ross, upon these claims, under an order from President Tyler, as made known by his letter to a Cherokee delegation, (composed of Ross and others,) dated September 20, 1841. These claims had been brought before President Van Buren, upon an appeal by claimants from the decision of the Secretary of War; and, after a careful examination of the whole case, he rejected that portion claimed as a balance due for removal, amounting to $486,939 50; and referred the item for subsistence, &c., to the proper accounting officers. This decision will be found published in the report of Mr. Cooper, from the Committee on Indian Affairs, (No. 288,) made to the House of Representatives 3d session 27th Congress, page 24, and is dated September 2, 1840. On the 7th January, 1841, the case was again brought before the President by Matthew St. Clair Clarke, esq., as attorney for John Ross and others; and a reversal of his decision asked. Upon this appeal the Secretary of War made the following endorsement: “The President regards his decision in relation to the claim of John Ross and other Cherokees, for the payment to them of $486,939 50 out of the moneys due the whole nation, as final, and refuses to open the case. The other case will be examined and adjusted; and the testimony given by General Scott in that particular will have its full weight.” [See report above cited, page 25.] In the face of this reiterated decision, the present Executive, within a period of eight months afterwards, directed this claim to be paid; and it was paid out of five million fund provided by the treaty, which was expressly exempted from any payment on account of removal and subsistence by the second and third supplemental articles of that instrument, and by the act of June, 1838, appropriating $1,047,067 to aid in carrying into effect the provisions of the said third supplemental article.

The act was approved June 12, 1838, and the second section provides as follows: “That further sum of $1,047,067 be appropriated, in full, for all objects specified in the third supplementary article of the treaty of 1835 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 said tribe of Indians by said treaty.” The full amount to which John Ross and others were entitled under their contract with General Scott, as allowed and paid by the last administration, was $776,398 98; and this sum

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was paid out of the appropriation of June 12, 1838. [See report above cited, pages 52 and 53.] The additional claim, made up on account of “removal and subsistence,” amounting to $581,346 68, disallowed by President Van Buren, and afterwards allowed by the present administration, has been paid out of the five million fund, which is expressly exempted from such payment by the treaty, and by the act of June 1838. [For appropriation under this act, see 9th volume Laws of the United States, page 778.] Here, then, in the language of President Tyler, “a fund appropriated for a specific object, and belonging to the Cherokees, in payment for their lands and possessions,” was applied, under the eye and direction of the present Executive, in liquidation of a claim, contrary to a law and treaty stipulation; and the “authority of this Government to make such application” is, indeed, “more than questionable.” The Cherokees claiming this fund, under the provisions of the treaty, now demand restitution of the money thus misapplied.

The third and last season assigned by the President for withholding his signature from the join resolution is equally untenable. He says that “the direction to pay certificates required to be issued by the treaty, and in conformity with the practice heretofore, as proper and sufficient vouchers upon which payments shall be made at the treasury, is a departure from the system established soon after the adoption of the Constitution, and maintained ever since; that system requiring that payments, under the authority of any department, shall be made upon requisitions, countersigned by the proper auditor and comptroller.” The treaty establishes an independent department for the liquidation of all claims arising under it; and the certificates issues by this department, constituted of a board of commissioners, are made the requisitions upon which payment is to be made. But independently of this case, is it not the constant practice of all the departments of this Government to disburse money to claimants, without issuing requisitions in each case? The money required to ay the officers and soldiers of our army is placed in the hands of paymasters, who pay upon properly certified rolls which are received as the vouchers at the treasury. The navy is paid in the same way, and so are all public workmen. The Indians are paid in like manner; and a large amount of money has been placed, by the present administration, in the hands of the Cherokee agent, (west,) for the purpose of paying the balances of these identical claims, upon the awards of the former board. The heads of departments and bureaus, and all the clerks, are paid in the same manner, without requiring that they must each obtain a separate requisition, to be “countersigned by the proper auditor and comptroller.” It is not known that any evil has resulted from this course; and all that is now asked by the claimants under the treaty is, that their certificates shall be paid as heretofore, without being referred to the Secretary of War, or the Commissioner of Indian Affairs. The President may have based his estimate of the amount of claims yet to be adjucated, upon the suppose-

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tion that the depredations, alleged to have been sustained by the large body of Cherokees removed by Mr. Ross in the fall of 1838, must be adjudicated and paid out of the fund provided by the treaty of 1835; although, in his letter to Ross and others, in September, 1841, he promises a new treaty, guarantying full indemnity for these losses. These claims cannot be adjudicated under the provisions of the treaty of 1835. That treaty was ratified on the 23d of May, 1836; and the 16th article provides that the Cherokees “shall remove to their new homes west of the Mississippi, within two years after its ratification; and, during such time, the United States shall protect and defend them in their possessions and property,” &c. Mr. Ross and his party (estimated at 12,500 Cherokees) did not remove within the two years, and do not come within the pale jurisdiction conferred upon the board by the 17th article of the treaty. The testimony of General John H. Eaton, a member of the late board of commissioners, taken before the committee, shows that this construction was placed upon the treaty provisions by that tribunal.

The undersigned now come to the reasons assigned by the Commissioner of Indian Affairs, embraced in the report of the Secretary of War, dated January 16, 1844, in reply to the resolution of the Senate, inquiring by what “law or authority the department derived the power to revise or review the proceedings of the Cherokee board.” Mr. Commissioner Crawford says: “This power the Secretary of War possess by his relation, as the head of an executive office, to the Indian affairs of the country to their administration. The power is inherent which is necessary to discharge an important duty, unless prohibited by law.” And he proceeds: “By the law of 1832, the Commissioner of Indian Affairs has direction and management of All Indian affairs, and of all matters arising out of Indian relations, under the direction of the Secretary of War,” &c.

The undersigned must dissent form the principle thus assumed, as applicable to the present case. Is not a treaty, although made with an Indian tribe, a supreme law? And was not any “inherent” power said to be possessed by the Secretary of War over the Indian affairs of the country, annulled by the 17th article of the Cherokee treaty, so far as the adjudication and payment of claims arising under that treaty were concerned? The power claimed by the Indian bureau is conferred by the law of 1832; the Cherokee treaty became a law in 1836, four years afterwards; and it expressly takes away all power conveyed, by any previous or conflicting law, upon the Secretary of War or the Commissioner of Indian Affairs, to interfere with the adjudication of claims arising under its various stipulations. If it does not, then Indian treaties are mere nullities; and their true character was not understood by President Jackson, Secretary Cass (who is high authority in Indian matters,) Attorney General Butler, President Van Buren, and Secretary Poinsett- all of whom decided that “no power existed in the Government to review or revise the decrees of the board appointed under the 17th article of the Cherokee treaty.”

The late Secretary of War has also introduced an opinion of Attorney General Legare, already quoted, to sustain him in the power he has assumed f revising the decision of the Cherokee board. He says: “No rule

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Of law is better established than that every special, limited or inferior authority, must, before it takes a single step in any matter, allege and prove its jurisdiction. The onus probandi is upon it, and those claiming through it.” It is very clear, from the whole tenor of this opinion, that the proper issue was not made before Mr. Legare. The tribunal created by the Cherokee treaty is neither a “special, limited, nor inferior authority,” within the boundaries prescribed by the 17th article. This article confers upon it supreme power over the adjudication of all claims arising under the treaty, and establishes its jurisdiction. No other proof is necessary, and the onus probandi is upon those questioning this jurisdiction, to show where the power is conferred on them by the treaty, which is the supreme law in this case, to do so.

In illustration of his position, as above stated, Attorney General Legare proceeds: Had these gentleman passed sentence of death upon an Indian, they, and all engaged in executing their judgment, would have been guilty of murder.” As has been already said, a false issue must have been made before the late Attorney General; his attention could not have been called to the 17th article of the Cherokee treaty. It appears too ridiculous to say that a commission constituted by that article would adjudicate a claim, and award that Indian claimant, or any other Indian, should be hung. The commissioners are empowered to examine and adjudicate claims for money, and, upon their certificates of the amount found due the claimants, they shall be paid by the United States. They could not well issue a certificate to hang an Indian, in such a form as to make it payable by the United States. But it is not to be presumed that commissioners, selected for their capacity and integrity to execute an important trust, plainly defined by law, would perpetrate such an outrageous violation of it, as to sentence an Indian to be hung under the 17th article of the Cherokee treaty.

The undersigned have no presented a full view of all matters connected with the Cherokee treaty and its execution, so far as concerns the adjudication of claims by the board of commissioners, in as condense a form as possible. The question has been involved in much perplexity and confusion, and they have endeavored so to disentangle it as to make the whole subject understood by Congress. It is a question of vast importance, as connected with the present condition of the Cherokees, and should be speedily and finally settled. Some of the certificates, upon which payment has been refused by the War department, have been issued more than a year; and it has been shown to the committee that the claimants, in many instances, have been compelled by their necessities to dispose of them at a great sacrifice. The undersigned are clearly of opinion, for the reasons assigned in this report, that these certificate ought to have been paid by the proper disbursing officer of the Government, whenever presented, if made out in the usual and legal form; that no department of the Government has the power to revise the proceedings of the commissioners, unless a case of corruption of any kind is detected, which would be insufficient cause for their removal by the Executive. But no such charge has been made or intimated, and the undersigned are not apprized that nay such charge exists. The board continued in the discharge of its duty upwards of a year, and examined and adjudicated say 500 cases, upon which it awarded $82,000. It collected and collated the testimony in say 300 cases more, upon which decrees were not made when the board was dissolved. The testimony

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Of the president and secretary of the board, taken before the committee, estimate the claims thus left unfinished as amounting, probably, to a less sum than those upon which decrees have been made; which would reduce the whole amount that can be adjudicated, under the 17th article of the Cherokee treaty, to less than $200,000. It appears, from official reports before the committee, that upwards of $200,000 yet remains in the treasury, as an unexpended balance of the fund heretofore applied to the payment of these claims.

More than six years have elapsed since the Cherokee party to the treaty complied with its part of the compact, by a relinquishment of every acre of the ceded lands; and the other party (the United States) is imperiously called upon to fulfil its part of it. The claims arising under the several articles of the treaty yet remaining unsettled must be adjudicated and paid; and in, the language of President Van Buren, these claims “can only be adjudicated by a board of commissioners appointed under the 17th article of the Cherokee treaty.” There must be a final decision somewhere; and all that is asked is, that it be left with the tribunal to which the trust was confided by the treaty. If this is not tribunal to which the trust was confided by the treaty. If this is not done, then every claim rejected by the board at its former and late sessions can be appealed to the Executive or Congress, or to the councils of the Cherokee nation, and the execution of the treaty will be interminable. The undersigned must also observe, that, although the power conferred upon a board of commissioners by the treaty is a high and imposing one, yet, it is to be presumed, such commissioners, appointed by the President and Senate of the United States- men selected for their “fidelity, integrity, and ability,” bearing the whole weight of responsibility- can be trusted with this power, with as much safety to the Cherokee interests, and to the treasury of the United States, as Secretary of War, or a Commissioner of Indian Affairs. And it might be presumed further, from the testimony before the committee, exhibiting the careful examination of the late commissioners, that if the claim of John Ross had been submitted to that tribunal for adjudication, it would have been rejected, and $581,346 saved to the treasury. The undersigned, therefore, beg leave respectfully to recommend to the House the adoption of the following resolution:

Resolved by the Senate and House of Representatives, That the Secretary of the Treasury be directed to pay, or cause to be paid, the several sums found due to claimants under the Cherokee treaty of 1836, upon the certificates issues, or which may be issues, by the board of commissioners appointed in pursuance of the 17th article of said treaty, out of the unexpended balance of appropriations made for the payment of such claims, upon the presentation of said certificates.

SOLOMON FOOT

B.A. BIDLACK

W. HUNT

J.I. VANMETER