A LETTER
TO THE
HON. GEORGE E. BADGER,
IN RELATION TO THE
CLAIM OF A. & J. E. KENDALL
AGAINST
THE UNITED STATES, FOR CERTAIN WRONGS DONE THEM,
WITH AN APPENDIX.
BY AMOS KENDALL.
WASHINGTON, D. C.
BUELL & BLANCHARD, PRINTERS.
1852.








LETTER..
WASHINGTONT, J'ovember 13, 1852.
lon. George E. Badger:
SIR:' It is not in a spirit of disrespect that I address you. On the
contrary, it is under the conviction that you are a man who does not
wittingly let prejudice or partiality influence you in the performance of
your duties, public or private; who has none of that foolish pride which
prompts many to persist in error, though convinced; a man as ready to
repair unintentional wrong as to maintain undoubted right.
Having this confidence in your integrity of purpose, and equal confidence in your ability to understand and give due weight to the law
and the testimony, I proceed to show, or attempt to show, that you
unwittingly did great injustice to myself and partner in your remarks
in the Senate, at their late session, on our claim for services rendered
the Western Cherokees.
It seems necessary, before we comment on those remarks, to state
the law as it existed when we undertook the service, as also the facts
of the case, and show the bearings of the one upon the other.
THE LAW OF THE CASE.
In the case of Walsh vs. Whitcomb, (2 Espinasse, pages 565-6,)
Lord Kenyon lays down the law in relation to powers of attorney as
follows, viz:
" There is a difference in cases of powers of attorney: In general,
they are revocable from their nature; but there are these exceptions:' Where a power of attorney is part of a security for money-there it
is not revocable. Where a power of attorney was given to levy a fine
as part of a security, it was held not to be revocable. The principle'is applicable to every case where a power of attorney is necessary to
c effectuate any security; such is not revocable."
Our own Supreme Court have announced the same principle as
established law in these United States. In the case of Hunt vs. Rousmanier, (8 Wheaton, pages 201-2,) Chief Justice Marshall lays down
the law in the following words, viz:
" The general rule is, that a letter of attorney may at any time be' revoked by the party who makes it, and is revoked by his death.
< But this rule, which results from the nature of the act, has sustained
4 some modification. Where a letter of attorney forms a part of a contract, and is security for money, or for the performance of any act
c which is deemed valuable, it is generally made irrevocable in terms,' or, if not so, is deemed irrevocable in law. Although a letter of at-.




4' torney depends from its nature on the will of the person making it,' and may in general be revoked at his will; yet, if he binds himself' for a consideration in terms, or by the nature of his contract, the law' will not permit him to change it,"
The law, as thus laid down, had, prior to our contract with the
Western Cherokees, been recognised and acted upon by the Government of the United States.
At page 1,066 of " Attorney Generals' Opinions " there is an opinion of Attorney General B. F. Butler, to the effect that a power of attorney to secure an agent's commission cannot be revoked. His language is as follows, viz:
" In my opinion, the letter of attorney to Mr. Lawrence, executed
by N. Rogers, surviving executor of the estate, may at any time be'revoked by him, except as to the admitted amount of Mr. Lawrence's
commissions-five per cent. Your Department, in my opinion, will
therefore be justified in issuing the certificates on the award to Mr.
Rogers himself, or to any attorney he may appoint, for 95 per cent.
thereof, on his due revocation of the former power."
But the principle is much more explicitly laid down by Attorney
General Gilpin, in March, 1840, (Churchill's case, pages 1,303-4:)
" Your first inquiry is, whether the provisions of the 9th and 17th
articles, (which direct that the just debts of the Indians shall be paid' out of any moneys due them for their improvements and claims, and
that all claims arising under or provided for by the treaty shall be' examined and adjudicated by certain commissioners, whose decision'shall be final,) apply to the case of a person to whom no debt was' owing at the date of the treaty, but who has acted as an attorney for'the Indian, for the recovery of his claim, and has had the sum in' question adjudicated to him as a proper compensation for so acting.' In reply to this inquiry, I have the honor to say, that I do not consider this to be one of the debts intended to be provided for by the
9th article of the treaty. I am of opinion, however, that if the per-'son presenting the claim was a duly constituted attorney of the Indian, with authority to prosecute and recover the claim, and the De-'partment is satisfied that the contract between him and his principal' is free from fraud, and is a just compensation for services rendered-'in such case he has an interest in the fund, which the Department'ought to recognise; and it should not, by paying over the whole' amount to the Indian, subject him to the probable danger of loss, and
the certainty of much expense and delay.
" Your second inquiry is, whether the whole scope of the treaty does'not warrant a payment to the Indians, in person, of such sums as'may be due to them under it; or whether they must be paid to per-' sons who present powers of attorney from them?
"In reply to this inquiry, I have the honor to state, that the treaty
clearly recognises payments directly to the Indians, and the Depart-' ment will be fully warranted in so making them. I beg, however, to'observe, that I consider the remarks I have made in reply to your' first inquiry as equally applicable to these cases; for, certainly, where'an attorney has performed an important service, collected the evidence, and been instrumental in securing a claim which might other



5
c wise have been lost; and where this has been done under the stipula-' tion, or with a bona fide understanding, that he was to receive the'amount to which he was entitled directly from the United States, he
has an interest in the fund, which the principal himself could not revoke, and which the Department is bound to recognise."
It is also a settled practice at common law, that an attorney has a
lien upon the judgment of his client. Judge Spencer says, in Johnson's
New York Reports, vol. xv., page 405: " It is fully settled, by a long
series of decisions, that courts of law will take notice of and protect'the rights of assignees against all' persons having either express or'implied notice of the trust."
These extracts exhibit the law as it existed when our contract with
the Western Cherokees was entered into.
1. The highest judicial tribunal of our country had decided that
Where a letter of attorney forms part of a contract, and is security
for money, or for the performance of any act which is deemed valuable, it is generally made irrevocable in terms, or, if not so, is deemed
irrevocable in law."  *  *  *  That if a party " binds himself for
a consideration in terms, or by the nature of his contract, the law' will not permit him to change it."
2. This principle had not only been recognised by the Executive
branch of our Government, but they had recognised their own obligation to protect the holders of such powers of attorney in the rights acquired by them. In the case of Lawrence, the Government did not
consider it " justifiable " to pay his commission over to the original
claimant, although a revocation was admitted in every other respect.
In the case of Mr. Churchill, such powers of attorney are recognised
as creating " an interest in thefund."  It is even asserted that where
an attorney has rendered important services, " under a stipulation, or
(even) with a bona fide understanding, that he was to receive the
amount to which he was entitled directly from the United States, he
has an interest in the fund, which the principal himself could not re-' yoke, and which THE DEPARTMENT IS BOUND TO RECOGNISE.)
Such was the law of the land when we entered into our contract with
the Western Cherokees. Let us pause a moment to consider the reason of the law. Why will not the Courts permit the revocation of
powers of attorney given as security for money, or for services performed? Why did the Executive consider such powers, and even bona
fide understandings to the same effect, as creating an interest in the
fund, which they were bound to recognise? The reason is obvious.
It is to prevent dishonest principals from  cheating their agents.
When a principal, having availed himself of the valuable services of an
agent, seeks to cheat him out of his compensation, and apply all the
proceeds to his own use, by revoking the power of attorney which constitutes the agent's security, an honest Judiciary and an honest Executive have heretofore told him " NO; your power of attorney gave your' agent an interest in the fund; the portion which you promised him
as compensation is no longer yours, but his; as honest administrators of the law, and dispensers of justice, we are bound to see that it
goes into his hands, and not into yours."
I think, sir, yourself and every intelligent lawyer will readily




concede, that in this consists the true reason of the law. Bearing in
mind the law and its reason, I now beg your attention to
THE FACTS OF THE CASE.
The Western Cherokees, being in great difficulty and distress,
solicited our aid in the prosecution of their claim against the United
States. Having satisfied ourselves that the claim was just, and that
the Delegation which applied to us had as ample authority to make
contracts as it was in the power of their people to give, we proposed to
serve them for a commission of five per cent. on whatever might be recovered. They had no national or corporate existence de facto, no
funds nor annuities, nothing whatsoever out of which they could pay
their counsel, but the proceeds of the claim which they desired to have
prosecuted. Nor had they any credit, or any means of securing their
counsel, otherwise than by giving them a lien on those proceeds. This
we agreed to take-to serve them for nothing, if nothing was obtained;
but, if successful, for five per cent. on the amount recovered, secured
by an irrevocable power of attorney, authorizing us to receive it directly
from the United States. Not content to rest upon " a bonafide understanding," we required a formal written contract, embracing a power
of attorney. The following are among its provisions, viz:
" In consideration whereof, the undersigned, John Rogers, John L.
McCoy, and Ellis F. Phillips, Delegates duly authorized as aforesaid,
do hereby, on behalf of said Cherokees West, covenant and agree to'pay, or cause to be paid, the full commission of five per cent. to the' said A. & J. E. Kendall, upon any sum or sums of money or what-' ever else of value may be allowed and appropriated in full or in part
satisfaction of said claims, to be paid from time to time, as appropri-'ated or allowed; and the said Delegates do hereby authorize and empower the said A. & J. E. Kendall, as agents and attorneys in fact
for the said Cherokees West, to demand and receive from the treasury
of the United States, or from the proper office or officer thereof, onetwentieth part of all sums of money which may be allowed and appropriated, or one-twentieth part of any stock, scrip, or any other species'of funds, securities, or annuities, which may be allowed, to be made
out and issued in their own names; and if lands or other property, or' any interest therein, shall be granted in discharge of said claims, or
any part thereof, to demand and receive from the proper office or officer a full title to one-twentieth part thereof, it being the true intent'and meaning of said Delegates that the said A. & J. E. Kendall
shall receive five per cent., or one-twentieth part, of any and every
thing of value which may be granted or appropriated on account of
said claims, to be received directly from the United States without
any further act or authority by or from the said Cherokees West.
" And the said Delegates do further authorize and empower the said
A. & J. E. Kendall, as agents and attorneys in fact of the said Cherokees West, to sign the names of the said Delegates to any letters and
memorials to the President, Secretary of War, Senate, House of Representatives, or other officer or individual necessary to the prosecution
and allowance of said claims; and to execute any receipts, acquit-' tanccs, or other instruments of writing which may be necessary to




7
c procure the payment or delivery to them, according to the true intent' and meaning of this instrument, of one-twentieth part of the money,
( property, or evidence of right, title, or claim to any money or property' which may be appropriated or allowed in satisfaction of said claims
in full or in part." 
For the whole contract, see Senate Ex. Doc. No. 32, 1 Sess. 32
Congress, page 27 to 30.
Now, sir, I submit to your candor, whether it was possible for us by
any frame of words more effectually to bring our case within the principle laid down by Lord Kenyon, Chief Justice Marshall, and Attorneys
General Butler and Gilpin.
In the language of Lord Kenyon, here is " a power of attorney necessary to effectuating a security," which he says "'is not revocable."
Here, in the language of Chief Justice Marshall, " a letter of attorney forms part of a contract," and is the only security for the performance of valuable services-such as he says  is deemed irrevocable
in law."
Here there is not a " bona fide understanding " merely, but a written "stipulation" that we were to receive the amount to which we
might be " entitled directly from the United States," which, the Attorney General says, gave us " an interest in the fund "-an interest
which the Cherokees themselves " could not revoke "-an interest
which the Government " is bound to recognise.'
This contract was based on the same authority as the treaty of 1846an authority which the United States has not denied, and cannot deny
without denying the validity of their own treaty. If there be any desire to examine the authority, a matter not in question, it may be found
in Senate Ex. Doc. No. 32, 1 Sess. 32 Congress, page 31.
Through three successive years before the treaty, at the time the
treaty was negotiated, and ever since, down to the final payment of the
money, as occasion seemed to require, we have applied ourselves to the
service of these people. Not only do printed documents abound with
arguments prepared by us in the prosecution of their claim, but there
are masses of papers of a similar character now on the files of the Indian Office which have never been called out. At length, our enormous
labors were crowned with success, and in 1851, eight years after they
commenced, the sum of eight hundred eighty-seven thousand four hundred eighty dollars and fifteen cents ($887,480.15) was paid out on account of this claim.
But where is our compensation? Notwithstanding our power of attorney authorizing us to receive it directly from the United States, it
has all been distributed among the individual Cherokees. Our irrevocable power of attorney has been virtually revoked; the security which
the Law, the Courts, and the Government promised us, has turned out
to be wholly illusory; our "interest in the fund" which our principals
could not revoke, and which our Government was "bound to recognise "
and protect, has been utterly disregarded. Long-established law, which
governed our Courts and the Departments of our Government from
time immemorial, has been set at naught in our case, for it just end,
unless it be just to deprive us of compensation for most laborious and
long-continued service in a cause which the Government has finally




8
conceded was a good one. I do not impute dishonest design; but I
speak of the effect upon us.
HOW HAS THIS HAPPENED?
The "faith of treaties" is plead as a justification for cheating us!
The United States,made -a treaty with our, clients, in which it was stipulated that all the money allowed them for their claim should be distributed per capita among the individual Indians. Well, what effect
could that treaty have on our compensation? It was secured to us by
a power of attorney which the Western Cherokees could not lawfully
revoke. Why? Because the law would not allow them to deprive us
of our security. If, then, the power ofattorney was absolutely irrevocable, it could not be revoked by a treaty between the maker and a
third party. A' right derived from the Western Cherokees, of which
they could not deprive us acting singly, could not lawfully be annihilated by:the concurrence opf a third party. The treaty, therefore, so far
as it purported to take from us our security, a thing which the-Western
Cherokees- could not lawfully do, was null and void; aid our interest
in the fund remained the same as if no provision had been made for its
distribution. Is it not'so? If not, the law, as laid down by the highest tribunals and practised upon by our Government, is a delusion and
a- mockery. The rights of attorneys, with whatever formalities and
solemnities secured, are still at the mercy of the maker of the power
and the holder of the fund, who may conspire to cheat him out of all
compensation and leave him without remedy.
The reason of the law on this point, as we have seen,; is to prevent a
dishonest principal from cheating his attorney by revoking his power
after the service is rendered. It would be dishonest, and therefore: is
not lawful. The Cherokees could not of themselves do this dishonest
thing in our case. Do you not perceive what character the United
States assume when they join the Cherokees in an attempt to do it?
Can they enable the Cherokees to cheat their attorneys in violation of
solemn contracts, established law, and moral right, without incurring
any responsibility themselves?
The fact is, the Cherokee Delegation were blameless in this matter.
They opposed the limitation of the fund to pay their debts in the original treaty, lest it should not be sufficient; and when that provision was
struck out by the Senate, leaving nothing for that purpose, they never
would have concurred in the amendment but for the desperate condition
of their affairs, the urgency of the Government, and the advance of
$20,000 to pay off their most pressing debts. To show that they did
not concur in anything like a revocation of their power of attorney, express or implied, direct or constructive, they made the following endorsement upon our contract, viz:
" The undersigned, Delegates of the Western Cherokees or Old Set-'ters, being a party to the treaty recently concluded to put an end to
Cherokee difficulties, do hereby authorize and request the Secretary
of War to pay the commissions stipulated for in the within contract' out of any moneys which may be appropriated to pay the debts of the' Old Settlers, or out of any moneys which may be found due to them




9
under the said treaty, it being our intention that this contract shall' be executed in good faith."  (Page 30, Doc. above referred to.)
Here is no revocation or repudiation. Although they had agreed to
the treaty, they expressly signified that they did not by that act intend
to supersede their contract and revoke their power of attorney; but,
on the contrary, intended that it should remain in full force, and that
the commissions should be paid directly by the United States.
Now, who is responsible for the dishonest and oppressive effect upon
us of the Cherokee treaty of 1846? Is it this Indian delegation who
concurred in the treaty upon compulsion, and immediately explained
that it was not their intention to impair the security of their attorneys,
or deprive them of one iota of their stipulated commissions? Or, is it
the United States who forced the treaty upon them, disregarded their
explanation and request, and have scattered in the wilderness the funds
which ought to have been paid over to us upon every principle of moral
honesty, and established law recognised in the administration of our
Government?
As if to cut off the possibility of our obtaining our lawful compensation out of the proper fund, Congress put a proviso to the appropriation, in the following words, viz:
"'Provided, That in no case shall any money hereby appropriated'be paid to any agent of said Indians, or any other person or persons'than the Indian or Indians to whom it is due."
This was in effect a declaration that our irrevocable power of attorney should be revoked, not by the party who gave it, but by a third
party, who had no interest in the subject; that the principle established
by the Supreme Court, and sanctioned by every honest court in Christendom, should be overruled in this case; and that the Executive, in
paying out the money, should not regard our "interest in the fund "
created by our contract, which, by all previous law, and in administering justice, they were bound to regard!
I know, from the mouth of the Senator who offered the proviso, that
he was: wholly unaware of its bearings on our case, and had in view the
prevention of frauds in cases altogether different. I do not doubt that
Senator's sincerity; for I do not believe that he, or any other Senator,
would have the inclination or hardihood to offer or vote for a proposition, knowing that its practical effect would be to overthrow established
law, rob the laborer of his hire, and set a precedent for repudiators
and cheats. Yet, there it is, and the wrong to us is none the less because it was not designed.
Our Government has not done us this great wrong without ample
notice.
We were recognised by the Government as the authorized agents of
the Western Cherokees from the date of our contract through a period
of eight years, during all which it was well known they had no means
of payment for services other than the proceeds of the claim we were
employed to prosecute.
In February, 1847, we presented the case to Congress in a memorial stating the facts, and prayed that body, in making an appropriation for the Western Cherokees, to provide for the payment of our
commissions. This memorial concluded with the declaration that " if




10
the United States shall, by their interposition, prevent and refuse
payment of this contract debt out of the moneys belonging to the Western Cherokees now under their control, they will by such acts and'refusal become, in the opinion of your memorialists, morally, if not
legally, bound to pay the debt out of their own Treasury."
In a communication dated June 8, 1848, to the Secretary of War,
signed by Colonel Stambaugh and myself, our case was fully stated,
a copy of our contract was transmitted, and we prayed for such action
as would secure to us our stipulated compensation. See document
above referred to, page 35 to 39.
On the 27th of the same month, we again memorialized Congress, and
sent with our memorial a copy of our contract. In that paper we held
the following language, viz:
"History records many instances in which this Government have'interposed to compel foreign and quasi foreign nations and tribes to
pay their just debts to American citizens; but this is probably the'first instance in which a Government has interposed to prevent such a'payment. The records of the War Department are full of instances'in which the Government have shown a paternal solicitude to secure'the payment of debts due from individual Indians to American citi-'zens; but this is a debt of much higher character. It is the debt of
a whole tribe, band, or party-of that aggregate of people forming'one of the three Indian parties to the treaty of 1846.
" Your memorialists have been told that they may collect their debt'of the individuals of that party. They have no contract with indi-'vidual Cherokees. The United States did not think it necessary to
ask the assent of the individuals of that party to the treaty of 1846;'and to turn over your memorialists to that as a last resort would be'mockery added to injustice.
" Seeing that the United States have themselves created the only'obstacle to the payment of this just debt, your memorialists look to
them for its removal. And if, instead of removing it, they shall dis-'sipate the moneys in their hands in trust for the Western Cherokees,'regardless of the contract rights now, as well as heretofore, made'known, your memorialists will have a right to consider the United'States their debtor, and never cease to ask for payment until it shall
be obtained. No claim for French or Mexican spoliations can be'half so strong; for in this case the Government itself will have been'the only wrongdoer, being itself the author of the provisions in the'treaty under cover of which the wrong will have been done, and having
itself, after notice, dissipated the funds upon which the debt is justly'chargeable. Where else can your memorialists look for justice, inas-'much as the tribe, or body of men, with whom they contracted, is
alleged by the United States to have been annihilated by the treaty,'and all its property will have been distributed among its members.
" Your memorialists, therefore, most respectfully pray that provision'be made for the payment of the commission justly due to them out of'the moneys which have been or may be appropriated for the benefit of'the Western Cherokees under the treaty of 1846, in pursuance of the'terms of their contract."
As early as June, 1848, therefore, both the Executive and Con



11
gress had full notice of this claim, and were'in possession of copies of
the contract embracing the irrevocable power of attorney on which it
was based.
On the 18th January, 1849, the Senate adopted a resolution calling
on the Secretary of War for information in relation to claims against
the Cherokees, and particularly the Old Settlers or Western Cherokees.
On the 9th February, 1849, the Secretary responded to this call, transmitting among other things a copy of our contract, and the authority
on which it was based, together with several recognitions of the contract after the treaty was ratified, voluminous arguments in favor of
the claims of the Western Cherokees, and the letter of Colonel Stambaugh and myself asking for some provision to secure payment of our
commissions according to contract. This report constitutes Senate Executive Document No. 28, Second Session, Thirtieth Congress. Permit,
me to call your attention to it, particularly to our contract marked B,
on pages 6, 7, 8, 9, to its special recognition on page 9, to its general recognition on pages 11, 14, and 25, and to the letter of Colonel
Stambaugh and myself on pages 15 to 20.
In this document, page 4, the Commissioner of Indian Affairs, Hon.
W. Medill, says: "The files of the Department attest the assiduity'and ability with which Messrs. Stambaugh and Kendall attended to'the duty intrusted to them; and I think it highly probable that the''Western Cherokees,' or' Old Settlers,' are greatly indebted for the' stipulations made for their benefit in the treaty of 1846 to the re-'searches and persevering efforts of their counsel. The evidence on'which I have based my opinion is my own knowledge of the personal' exertions of the counsel named, and that shown in the accompanying'papers."  He then refers to the papers, which in fact do not embrace
a third part of those prepared by us in this case, as I am prepared to
show.
This document brought the whole subject before Congress in the
most formal manner; but nothing was done for our relief.
At the next meeting of Congress, the new Commissioner of Indian
Affairs, Orlando Brown, Esq., in his annual report, called the attention of Congress to the subject in the following words, viz:
" A considerable amount will be due to that portion of the Chero-'kees known as the Old (or original) Settlers, west of the Mississippi,'who, as a separate and distinct community, have incurred liabilities
of various kinds; and among others for valuable and efficient services
rendered them in prosecuting their claims against the Government,
and which, it is well known, were greatly instrumental in effecting the
c recognition of those claims, and the large allowances in consideration
of them. In the treaty as negotiated, a provision was inserted setting
apart a portion of the sum to be awarded them to enable them to meet' such liabilities, but for some cause not known it was struck out by the'Senate; so that the whole amount is now liable, according to the'naked terms of the treaty as it now stands, to a per capita distribu-'tion. Unless some change in this particular be in some way author-'ized, the just and honorable intentions of the Indians themselves will'be defeated, and great injustice done to their creditors-which should
by all means be avoided."




12
At the same session we again memorialized Congress; and on the
10th August, 1850, Mr. Sebastian, from the Committee on Indian
Affairs in the Senate, made a favorable report. See Senate Reports
No. 180, First Session, Thirty-First Congress.
This report recognised every principle on which we base our claim,
viz:
1. That our contract was valid.
2. That the lien it gave us on the funds of the Western Cherokees
was irrevocable.
3. That the services had been faithfully performed.
4. That the treaty of 1846 did not impair our lien.
5. That, in default of that fund, the debt survived against the United States.
The following is the reasoning of the Committee, viz:
" When these engagements were entered into, the Western Cherokees were a distinct party, forming, in fact, a separate political body,
and directing their separate interests through the action of a' national
council.' As such they were recognised, through their delegations
and their agents, from 1842 until and at the making of the treaty of
1846, in which the United States regarded them as having distinct
interests and competent to release their separate claim to the country' east, and agree to an indemnity for it. This same authority had crea-' ted this debt against the' Western Cherokees,' and secured it by an
equitable lien on the funds to be paid them under that treaty, of which
the United States were fully cognizant. At this time it was a debt
against the' Western Cherokees,' for which any national fund of' theirs would be liable generally, but that under the treaty specifically.
By that treaty, provision was made for setting apart the sum of':$50,000 to discharge their national debts; but this provision was
stricken out by the Senate, the effect of which was to appropriate the
whole of their money due under that treaty to a per capita distribution.
Thus the treaty fund wzas gone. The clause of the treaty which
merged all the different parties in one common nation, and under one
government, destroyed their separate political existence,' except for
the purpose of executing the treaty.' Thus every national fund was'gone, and the nation extinguished. Against whom did the debt sur-' vive? Not against the individual Cherokees, for they were not par-' ties to it. Not against the nation, for that was extinct. Not against'the whole nation of Cherokees, for the union was political, and had
no reference to the separate debts of its factions; but the debt sur-' vived, and against the fund pledged for its payment, or, in default of' that, against the United States. The Cherokees could not by the' treaty release their obligation, nor could the United States, neither' debtor nor creditor, release it. But they could by the treaty enter' into an obligation inconsistent with its payment, and thus become re-' sponsible for it themselves. Other means of payment being exhaust-' ed, either the United States are liable, if the treaty has released the'fund, or the fund is liable, if the treaty has not destroyed the lien.' That there was a specification and appropriation of so much of that'fund as was necessary to pay the debt, cannot, we think, be ques-' tioned. It was created by an authority competent to do it. The




13' pledge was irrevocable. It was not a mere agency to receive, but an
equitable transfer of so much of the fund. It was a security for pay-' ment; and if the United States has discharged it, they are liable for
the debt."
The Committee, however, being of opinion that the fund was still
chargeable with our commissions, recommended "-that in the proper'appropriation bill a provision should be adopted setting apart a certain amount of the sum due the Western Cherokees for satisfaction of' these claims."
So far from complying with this recommendation, however, the Senate adopted the proviso already quoted, prohibiting the payment of any
portion of the fund to agents!
Finally, the moneys appropriated were placed in the hands of the
disbursing agent, and we took counsel and advised with him in relation to preventing by injunction the distribution of our portion of them
among the individual Indians. The agent informed us that he would
not obey such an injunction if obtained, and we were advised that it
was very doubtful whether we could avail ourselves of such a remedy.
For the fourth time we laid our case before Congress, which was then
in session. The following was a portion of our representation and
prayer, viz:
"It is not the individual Indian, but the whole body, that is the' debtor of your memorialists; and they could have little hope that the'individuals, when thus virtually told by Congress that they were not'bound, would bind themselves, when, instead of gaining anything by
it, they would lose a portion of the glittering temptation placed within
their reach. Nor could they shut their eyes to the facts that there
would be many persons around the Indian Agency who would dissuade
the individual Indians from paying this debt, from interested or vindictive considerations.
"Your memorialists hoped that another resource was left to them in
the Judiciary of their country, by whose instrumentality they might
be able to stop the funds in the hands of the disbursing agent of the' Government; but they are advised that the power of the Judiciary to
grant them redress is extremely questionable; and they have been
assured by the agent who now has the funds in his hands, that he will' not regard any such Judicial mandate.
" Under these circumstances, they again look to your Honorable
Bodies for relief. It will be some months before these moneys can
be paid out to the Indians-ample time to give effect to any act of' legislation adopted at the present session.
" Your memorialists ask for nothing which they have not a right to' claim and receive according to the principles of law and equity which'govern courts of justice in civilized and Christian nations; and they' now pray for such legislation as will secure the payment of the debt
c out of the funds appropriated for the benefit of the' Western Cherokees,' or out of the Treasury of the United States; but they will be'perfectly content with a resolution or act enabling them to enjoin the
payment of the moneys in the hands of the disbursing officer until' their claims can be judicially investigated and decided."
But Congress were wholly deaf to our prayer.




14
Again we turned to the Executive, and in a letter dated March 14,
1851, "protested against the payment to the Western Cherokees of the
one-twentieth part of those moneys, being the interest assigned to us'for services prior to the ratification of the treaty."  We said, "The' question we now wish to submit is, whether the United States, with
everybody's eyes open as to the wrong, (not to use a harsher word,)
are bound to proceed through the Indian Office to the consummation' of that wrong, by paying to the Cherokees, individually, moneys which
c were assigned away by competent authority, and for a valuable con-'sideration, long before the treaty was formed?  V We endeavored to
satisfy him that the payment of our moneys to the Cherokees would be
the consummation of a palpable fraud upon us; that neither the treaty
nor act of Congress ought to be construed so as to require or justify a
fraud; and we concluded with the following prayer, viz:
" We therefore respectfully ask at your hands an order to Colonel
( Drennen, who now has charge of the fund, to pay us the twentieth
part thereof without further trouble, including interest thereon as al-' lowed by Congress. If, in consequence of steps already taken, or any
other cause, the Department hesitates to give such an order, then we' most respectfully request that the opinion of the Attorney General'may be taken upon the points involved, not doubting that his talents
and legal skill will enable him to point out some line of proceeding
consistent at the same time with the rights of the citizen and the obligations of the Government."  For the whole letter, see Senate Ex.
Doc. No. 32, 1 Sess. 32 Congress, pages 20 to 23.
But no order was given, nor was the opinion of the Attorney General
asked for.
The Secretary of the Interior and the Commissioner of Indian Affairs were perfectly satisfied of the justice of our claim; but considering themselves precluded from paying it by the proviso of Congress,
they proposed to aid us in collecting it of the Western Cherokees by
sending out an agent for that purpose. Evidence of this suggestion is
found in my letter of the 19th June, 1851, to be found in the Document last above named, pages 71 to 74.
On page 74 may be found a letter from me to the Secretary of the
Interior, dated July 1, 1851, containing the following passage, viz:
" The suggestion and request I have to make is, that Colonel Drennen be instructed not only to obey an injunction which may be ob-'tained in our case and that of Colonel Stambaugh, but that, in case' of difficulty with the Indians, he will give time to apply for and obtain one before making payment. I think that such instructions,
coupled with a strong expression of opinion from your Department
that these debts ought to be paid, would prevent all trouble."
No answer was received.
Having learnt that a spirit of repudiation had sprung up in the Cherokee country, putting an end to all hope of a voluntary payment of
our claims by the general assent of the Western Cherokees, I addressed
another letter to the Secretary of the Interior, dated August 17th,
1851, concluding as follows, viz:
( I appeal to you, sir, to avert from our Government and country
< for the present, and enable Congress to avert forever, the stigma




15' which cannot but attach to the consummation of such an outrage. On'behalf of A. & J. E. Kendall and Colonel S. C. Stambaugh, whose
aggregate claims amount to ten per cent. on the appropriations for the' benefit of the Western Cherokees or Old Settlers, I request and en-'treat an official order to Colonel Drennen, directing him to withhold'that amount to await the further action of Congress. Surely, the' nature of the case, as now understood, will justify if it do not require
this exercise of power on your part.
" And in view of the wrong now about to be consummated, unless
prevented by your prompt interposition, it will not be deemed amiss
in me most respectfully to repeat the protest heretofore made against' being sent to the Cherokee country to collect moneys which by contract are payable at Washington, and again give notice that we,'the counsel of the Western Cherokees, look to our Government' for the payment of our claims and of all expenses, losses, and dama-' ges which have been or may be occasioned to us by its own wrong in' this behalf."
To this letter I received no answer.
Although the Secretary of the Interior and the Commissioner of Indian Affairs recognised the justice of our claim, they did not think
themselves authorized, after the action of Congress, to do more than
give us the benefit of their opinion, and advise the Indians to make
payment. To that end, the Secretary of the Interior wrote the following letter to the Commissioner of Indian Affairs, viz:
" I have examined the instructions you propose to give to Mr. Dren-'nen in regard to the payments to be made to the Cherokees, and cor-'dially approve them. You will please add to them that I have care-' fully examined the claims of Messrs. Thompson, Harris, and Ken-'dalls, against the Indians, for professional services, and, from the evidence before me, I am satisfied that they are just and reasonable,
and should be paid. If I had possessed the legal authority, I should'have felt no hesitation in ordering their payment; but, as it is at' least questionable whether I had the power to do so, I determined to
refrain from such an interference. I regretted this the less, however,' because I am persuaded the Indians will be disposed to fulfil their
obligations in good faith when they are properly explained by Colonel' Drennen."
The instructions alluded to recommended the raising of a committee
by the Indians, to examine the claims against them, and the payment
of such as they found to be just.
Protesting against the course pursued, and declaring that we still
held the United States responsible for our claim, and for all losses and
damages that might ensue from thus compelling us to seek justice from
the individual Cherokees, who were not our debtors, John E. Kendall
visited the Cherokee country in the hope that the Indians, influenced
by Colonel Drennen and the decided opinion of the Government, would
permit the payment of our claim. The committee was appointed; but
so high was the excitement against paying the large amount of just
debts due from the Western Cherokees, that, for a time, it was doubted
whether they would venture to act at all. At length, however, they
met, allowed the whole of Colonel Stambaugh's claim, and threw ours




16
out altogether, on the pretext that the stipulated service had not ben:
rendered! We seem to see the venerable chief, John Rogers, start in
his grave at an allegation from his survivors so atrociously false! The
only excuse for them is, that they dared not allow all the claims they
knew to be just, through fears of assassination.
After incurring heavy expenses, and suffering much from sickness,
my nephew returned to Washington. And, now, there are those who
would construe this effort, made under protest, as a relinquishment of
our claim on the Government!
The public documents are so full of testimony that we performed the
service zealously, perseveringly, and successfully, that it seems a work
of supererogation to produce further evidence. Yet; after learning on
what pretext the Cherokee committee had refused to. recognise our
claim, we addressed every gentleman then living, who, as a public officer, had cognizance of this Cherokee business, (except Commissioners
Medill and Brown, whose testimony to our fidelity we had in their official reports,) and we annex their answers. In contradiction of the
Indian committee, therefore, we have the evidence of the following
gentlemen, viz:
Hon. J. M. Porter, late Secretary of War.
lIon. Wm. Wilkins,      "
Hon. W. L. Marcy,       " 
Hon. H. H. H. Stuart, Secretary of the Interior.
Hon. T. Hartley Crawford, late Commissioner of Indian Affairs.
Hon. W. Medill, 
Hon. Orlando Brown,( 
Hon. Luke Lea, present Commissioner of Indian Affairs.
Charles E. Jlix, Esq., Acting Commissioner of Indian Affairs.
Hon. Edmund Burke, one of the commissioners who negotiated the
treaty of 1846.
Hon. Albion K. Parris, the other surviving commissioner, who also,
as Comptroller of the Treasury, settled the Cherokee accounts.
And to this overwhelming testimony we are prepared to add a heavy
mass of papers prepared by us in this case, which have never found
their way into the printed documents of Congress.
MR. BADGER'S SPEECH.
With the law and the facts of the case before us, let us now examine
briefly the positions assumed by you in opposition to our claim.
The following extract from your speech, as reported in the Union of
the 17th of August last, embraces the substance of your argument, viz:
" My friend has referred to this contract. He says, what does it
c signify what the treaty contains-here is the contract?? I ask him,'in turn, what does it signify what the contract says?  The United' States have no part in that contract. That is- an agreement between'the Indians and their agents for prosecuting this claim. Does that'affect this Government, and estop us from paying the money to the'Indians, and control our action in any way? Certainly not. The'Government cannot be estopped in any case; that is a settled princi-'ple. But no individual could be estopped in this way. Again: the' truth is, that according to the rule adopted in the Executive Depart



17
C ment, these persons could have had no claim upon this money, even'if it had been paid without this amendment. What is the contract?
These persons, on behalf of the Cherokees West,'covenant and agree'to pay, or cause to be paid, the full commission of five per cent.''That authorizes them to receive the commission of five per cent., or'one-twentieth part. And it goes on to say that it'shall be received'directly from the United States,' &c. Now, the rule in the Depart-' ment is this: they do not undertake to enforce contracts to pay; they'have never assumed any such jurisdiction. What they have done is'this, and that is sanctioned by the usage of the Department, and'nothing more: Where there is an actual assignment, in terms, transferring to the agent, in consideration of services rendered, or to be
rendered, a certain proportion of the claims, they have considered him'as an equitable owner of that portion of the claim, and have paid it
to him-not in virtue of a contract for services, but as the assignee'of that portion. And where there is an assignment, the Department' have considered that assignment as passing property, and are in the'habit of enforcing it. But the Department have never undertaken to'enforce contracts with agents; and as long as the claim rests merely
upon the contract, they do not touch it. Where there is an assignment of ten per cent., they have assumed that the agent had an inter-' est in one-tenth of the claim, and have paid it to him, and then paid'the other nine-tenths to the principal. But if the-principal, instead'of making an assignment, enters into a contract to pay a compensa-'tion-no matter what it is-the Department have never assumed'jurisdiction over it.
" It seems to me, therefore, that this claim is stripped of every ten-' able ground. Even if the parties had appeared at the Department,'and the contract had been denied by the Indians, and they had re-' fused their assent and consent to the contract, the Department would'have had no jurisdiction over this matter, because it is not an actual'assignment to these agents. In the first place, this Government had
a right to pay the money directly to the principal, and the agents'cannot complain that we did so pay it. In the next place, the agents'had no interest upon the principal which could be enforced at the'Department, and therefore the payment of the principal has caused'them no loss; and therefore they can bring no claim against the Government.   It seems to me, therefore, that this claim is without
foundation."
Upon this I most respectfully submit the following remarks, viz:
1. I cannot think you had read and fully considered the character of
our contract. It is not, as you seem to suppose, a naked contract by
which the Western Cherokees " covenant and agree to pay, or cause to
be paid, the full commission of five per cent.," which " shall be received directly from the United States," as you seem to suppose; but
it goes further, and embraces a power of attorney.  It says, " and the' said delegates do hereby authorize and empower the said A. & J. E.' Kendall, as agents and attorney in fact for the said Cherokees West,'to demand and receive from the Treasury of the United States, or'from the proper office or officer thereof, one-twentieth part of all the'sums of money which may be allowed and appropriated," &c., " it
2




18' being the true intent and meaning of said delegates, that the said A.' 8 J. E. Kendall shall receivefive per cent., or one-twentieth part of' any and every thing of value which may be granted or appropriated'on account of said claims, to be received directly from the United'States, without any further act or authority by or from the said
Cherokees West."
In short, we had " a letter of attorney coupled with a contract"
as our security in the arduous duty we undertook. Is it not so? We
appeal to you to say whether it was possible for us, by any form of
words, to bring ourselves more effectually within the protection of the
law as laid down by Chief Justice Marshall.
2. We were told by the Attorney General, whose opinions regulated
the practice of the Departments, that " a stipulation," or " a bonafide
understanding," that we were to receive our commissions directly from
the United States, would give us " an interest in thefund," which the
Western Cherokees " could not revoke, and which the Department was
bound to recognise."
Our contract was not only " a bona fide understanding " and 6 a stipulation," but it was more —it gave us an express and irrevocable power
of attorney. By the law, as laid down and practised upon by the
Government itself, our contract gave us " an interest in the fund,"
which it "was bound to recognise."  And shall the law as laid down
then be now changed, not to promote justice, but to cover injustice!
3. You admit that, where there is an assignment, the Government is
bound to regard it, and does regard it. I am not lawyer enough to
perceive the difference in law or common sense between an interest created by the word "assign" and one created by other words which
equally put the interest embraced so completely beyond the reach of
the party using them as to require "no further act or authority by or
from them " to perfect the transfer. If an irrevocable power of attorney is not, so far as legal right is concerned, tantamount to an assignment-if not in law an actual assignment-it is a mockery. Your
view of the matter arises from a misconception of our power of attorney. You say:
"We paid this money according to the terms of the treaty. By our'own act we required that it should be paid per capita, and we so paid'it. And now we are gravely told that if we had allowed the money'to go into the hands of the agent, he would have deducted his compen-' sation, and everything would have been perfectly straight. But inas-' much as we paid the money to the principal, and the principal refuses'to pay the agent, we are bound to make it good to him. The whole' question resolves itself into this: If A is agent of B in reference to a'claim against C, does that absolve the debtor C from paying the debt'to the principal B? Certainly not.5
If you will examine our power of attorney, you will perceive that it
never gave us the authority to receive the whole of this money with a
view to the deduction of our compensation; but it only authorized us to
receive the portion set apart as our compensation. Our complaint is,
not that the United States paid directly to the Cherokees the portion
belonging to them, but that they did not, after full notice, pay to us
the portion belonging to us.




To make the case you put parallel, some new features must be introduced.into it. A, being the agent of B.for the collection of a claim
upon C, takes from B, as security for his. compensation, an irrevocable
power of attorney authorizing him to receive it of C, of which  gives
C notice. Does not that absolve the debtor C from'paying that-portion of the debt to the principal B?  Certainly it does. It goes further-it binds hi:m not to pay it to B; and if he does so, the law will
compel him to pay it over again to A. Otherwise, what security is
there in an irrevocable power of attorney?  If C, after notice, cah
lawfully pay the amount of' A's compensation to B, the agent A, by
collusion between B and C, may be cheated out of his cbmpensatori,
however irrevocable in terms may be his power of attorney. I think
Chief Justice Marshall would have decided that the object of the law
could not be thus defeated. 
Now,; iis is precisely our case. The Western Cherokees (B) come
to'the Messrs.  endalls, (A,) and employ us to prosecute a claim
against the United States, (C,) and, by way of security for our compen'
sation, give us an irrevocable power of attorney authorizing us to receive
our commissions directly from the United States; and of the existence
of this power the sMessrs. Kendalls ({J) give ample notice to tite Uited
States, (C.) Now, can the United States, a.fter such notice, lawfully
pay those commissions over to the Western CherOkees, (B?) If they
can, Lord Kenyon, Chief Justice Marshall, Attorney General Gilpih
aid the Government of that day, were wholly mistaken in the law.
And here we beg you to consider as a lawyer whether an' interest
created by an irrevocable power of attorney, with notice, given for a
consideration, is not in law precisely equivalent to an interest created
by an assignment, with notice, executed for  t consideration?  Wp
beg of'you also to inquire Whethier interests created by irrevocable
powers of attorney given for a consideration, or by " bona fide under;
standings" and " stipulations i in the nature of such powers, have not
in fact been considered by the Department:as assig"ned interests, so far
at least as to merit and receive its protection?  We know that such
interests Wererprotected when we made our contract with the Western
Cherokees, and we believe no case can be found prior to ours on the
records of the Government in which such interests have been disregarded. In short, we look upon our interest as in all essential features
precisely such an one as you say it has been the practice of the Departmienet to protect, and we are sure that on further investigation you
will come to the same conclusion.
4. But you say " we (meaning the Government) certainly have the
right of paying the money to the persons to whom we owe it, if we
please."' You also say" the Government cannot be estopped in any
case."
Now, we supposed our Government was a Governmentof laws. We
supposed that, when the Supreme Court lays down a principle as law,
ther Government is bound to regard it as law. We supposed that,
when the Attorney General said the Government was bound by certain
peculiar transactions between its creditors and their agents, it was
really bound. We supposed that, when a principle was announced as
law, and practised upon as law by the Government itself, it was bound




20
by that law. But if the officials constituting our Government cannot
be estopped by any law, we have entirely misconceived the character
of the institutions under which we live. If your position as broadly
laid down be correct, it is a lawless despotism, instead of being a Government of laws. Our experience in this case, we confess, tends to
establish your position.
You-I mean the Government-by professing to be governed by
certain laws, led us to undertake a most laborious duty upon a security
which those laws assured us was amply sufficient-being such as our
principals could not retract, and such as you told us you were bound
to recognise.
Upon your faith, we spent months and years of. toilsome research and
labor in convincing you that you had grievously wronged our unhappy
clients.
As if to punish us for convincing you of the wrongs you have committed, you do not indeed conspire with our clients to cheat us; but you
force upon them a treaty provision which, you say, cuts off our entire
compensation. You wrong us by making such a treaty, and then plead
your own wrong in justification of the results it produces.
Lest an honest Executive should consider of no effect so much of the
treaty as purports to nullify our power of attorney, and rob us of our
interest in the fund, you follow up the blow with a proviso forbidding
the payment to us of one dollar of the money!
In vain the Western Cherokee Delegation tell you they did not intend' to nullify or impair their power of attorney.
In vain we call your attention to the law which declared it could not
be nullified.
In vain we present you with your own admission that you were bound
to regard the interest which it created, and with your own practice
holding such interest sacred.
In vain we call your attention to the.report of one of your own committees, telling you that you will be bound to pay this money yourself
if you pay it out to the Indians.
Notice upon notice, memorial upon memorial, letter upon letter, are
wholly disregarded, and our money is thrown broadcast into the Western wilderness.
Though our contract and your.treaty are made by the same Delegation, and upon precisely the same authority, you hold every Western
Cherokee bound by your treaty, while you allow every Western Cherokee to repudiate our contract.
You send us to the Cherokee country to collect our money of the individual Indians, and because we go, though under formal protest,
hoping to fare better at the hands of savages than at those of our own
Government, you now seem inclined to construe that compulsory act as
giving up our recourse upon you!
An expensive and hazardous effort to collect from them a debt due
from you, though done under protest, is said by some to relieve you
from responsibility!
We are American citizens, entitled to the protection of our Government in our lawful transactions with foreigners. The Western Chero



21
kees were so far foreign that no law of the United States enforcing contracts could reach them.
You send Ministers to civilized nations to make reclamations, when
foreign Governments seize and sequestrate the property of your merchants. You threaten reprisals and war if they do not make reparation. You send your armed ships to the other side of the globe to punish with fire and sword the lawless barbarians who plunder your merchant ships and refuse to restore the plunder. Yet, here at home, you
not only unite with a half-civilized people to prevent the payment by
them of a defined and liquidated debt to your citizens, but you are
yourself the instigator of the fraud, and the instrument-the voluntary
instrument-of its consummation.
If you had held the moneys of France in your treasury sufficient to
pay the indemnities to our merchants, would you have hesitated, instead
of threatening war, to have applied them to that purpose? If you had
held the moneys of Mexico sufficient to pay all the claims of our citizens upon her, would you have sent your army and navy to seize upon
her cities and conquer her provinces? In both of these cases, would you
not, instead of hostile measures, have paid over the money to your citizens, even without the authority or consent of Mexico and France?
And if, instead of doing so, you had paid it over to those Governments,
and, as your apology, told your citizens, their creditors, that you had
" the right of paying the money to the persons to whom you owed it,"
and that " the Government could not be estopped," would you not have
been denounced, not only through the length and breadth of this land,
but throughout the civilized world, as faithless to your trust, and derelict in the highest duties of a Government to its citizens?
You held the moneys of the Western Cherokees, who, in relation to
pecuniary transactions with your citizens, were foreign. You were informed that your citizens held a liquidated and acknowledged claim
upon them. It would seem this was enough to induce a paternal Government, tenacious of the rights of its citizens, and proudly displaying
its flag in every sea, to evince its determination to defend them, at once
to pay the debt out of the debtor's money. How much higher was the
obligation when we held an express and irrevocable lien upon the fund,
which, by the rules heretofore regulating your action, you were bound to
recognise! But, instead of recognising the obligation and discharging
the debt out of the Western Cherokee fund, you not only dissipate that
fund, but by your treaty annihilate our original debtor! In other
cases, if you refuse protection to your citizens, the foreign Government
which has wronged them remains, to whose justice and magnanimity
they may appeal for redress. But in this case, you not only refuse to
secure our debt when you can, but you exterminate our debtor. Refusing to recognise his irrevocable power of attorney, you put him to
death, and, handing our money over to his insolvent heirs, tell us to
get it if we can!
We repress the indignant feelings which rise up when we reflect how
we have been treated in this matter. But, conscious of no offence
against our Government or fellow-citizens which can justify outlawry
and confiscation, we attribute this treatment to the mistakes and inat



22
tention of those whose duty it was to protect our rights, rather than
any design to do us injustice.
In conclusion, permit us to ask you to decide, in all candor, upon the
following propositions, viz:
Ought not our commissions to have been paid by somebody?
Whose fault was it that they were not paid out of the Western Cherokee fund?
If fyou think we ought to have been paid, and that it was the fault
of -the Government that we were not paid out of the proper fund, then
your public and private character is a guarantee to us, that'hereafter
you' wiI be found'iamong those who insist that the Government which
has done the wrong, shall repair the injury.
With unfeigned respect,
Your' obedient servant,
AMOS KENDALL.
P. S. For the previous practice of our Government in the payment
of attorneys' and agents' fees, see the letter of Hon. L. Lea, of 8th
April, 1852, on page 27.




APPENDIX.
DEPARTMENT OF THE INTERIOR, July 18, 1851.
SIR: I have examined the instructions which you propose to give to
Mr. Drennen in regard to the payments to be made to the Cherokees,
and cordially approve them. You will please add to them that I have
carefully examined the claims of Messrs. Thompson, Harris, and Kendalls, against the Indians, for professional services; and, from the evidence before me, I am satisfied that they are just and reasonable, and
should be paid. If I had possessed the legal authority, I should have
felt no hesitation in ordering their payment; but as it was at least
questionable whether I had the power to do so, I determined to refrain
from such an interference. I regretted this the less, however, because
I am persuaded the Indians will be disposed to fulfil their obligations
in good faith, when they are properly explained by Mr. Drennen.
Very respectfully, your obedient servant,
ALEX. H. H. STUART, Secretary.
CHARLES E. MIX, Esq.,.Jcting Commissioner of Indian  lffairs.
GADSBY'S HOTEL, WASHINGTON, January 20, 1852.
DEAR SIR: Your letter of the 19th instant has been received. I was
surprised to learn from it, as I did, that your claim against the Western Cherokee Indians, for services rendered them as agent and counsel
in advocating their claims against the Government of the United States
before the Board of Commissioners appointed to negotiate the Treaty of
1846, had been rejected by a committee of Indians, on the ground that
you had been unfaithful to their interests; while the claim of Colonel
Stambaugh, your colleague, for similar services, had been allowed and
paid.
Having had ample opportunity, as one of the Commissioners who negotiated the Treaty, to observe your conduct on that occasion, as well
as that of all others who appeared as agents or counsel before the commissioners, I am confident I can say, without reflecting on any individual concerned, that no one was more faithful, untiring, and zealous in
the advocacy of the cause of his clients, than you were in behalf of the
interests of yours. It was my opinion (and I think I can say the same
for my surviving colleague on that board, Judge Parris) that you urged
the cause of your clients, not only with all necessary zeal and perseverance, but with a degree of skill and ability surpassed by no other




24
counsel who appeared, (before the board.) Certainly, on that occasion,
you did nothing which could tend to the injury of the interests of your
clients, and omitted nothing which would tend to promote them. And
I never knew you on any other occasion to do anything tending to prejudice, nor omit to do anything tending to promote, the interests of that
portion of the Cherokee Indians whom you, in connection with Colonel
Stambaugh, represented before the Government of the United States.
We made provision in the Treaty for the payment in part of your
claim. That provision was stricken out by the Senate. It is certainly
hard that you, who contributed so much to the settlement of the unhappy controversies and murderous feuds then existing among the different factions of the Cherokee Indians, should be deprived of all
compensation for the very able services which you rendered, not only
to your clients, but to the Government and to humanity, on that occasion. In my opinion, your services were quite as valuable, and contributed as much to the success of your clients, on the occasion referred
to, as those of Colonel Stambaugh.
I am, with great respect, your obedient servant,
EDMUND BURKE.
Hon. AMOS KENDALL.
EASTON, PENNSYLVANIA, January 22, 1852.
DEAR SIR: I have a very perfect recollection that, when I had the
honor to fill the Department of War-from early in March, 1843, until
about the close of January, 1844-the claim of the Western Cherokees
was before the Department. I can also bear testimony to the zeal,
fidelity, and ability, with which you, as their advocate, urged and pressed
those claims upon the Government whilst the subject was before me;
and I was much indebted to your indefatigable industry and untiring
zeal for the knowledge of the details, as well as the principles of the
claim, which I obtained. If they have since obtained a recognition and
allowance of their claim against the Government, they are greatly indebted to your exertions on their behalf for it.
It is not possible for me now, without recurrence to documents, to
go into details; but the impression is very strong on my mind of how
assiduous you were in urging the claim, clearing up real or supposed
difficulties, and casting much light upon it.
I am, very truly, yours,
J. M. PORTER.
Hon. AMOS KENDALL, Washington City.
ALBANY, January 23, 1852.
DEAR SIR: In reply to your letter of the 19th instant, I state that
I well recollect you presented to me, when Secretary of War, several
elaborate communications in relation to the Cherokee difficulties, and
the claims which were made by the Cherokees, or some one of the parties among them, upon the United States. These difficulties were
settled by a Commission, on which were Mr. Edmund Burke and Judge
Parris. It was a very complicated matter, and I thought at the time
that you did much to bring it about. Besides the communications you




25
made to the Department, which showed that you must have spent much
time and bestowed much labor on the subject, you had several interviews with me, in which you strongly pressed the claims of one party
of that divided nation. Through the whole of that controversy I
thought you were active, persevering, and devoted to the interest of
the section of the nation whose cause you had espoused. So far as it
appeared to me, you did more than any other person to bring about the
adjustment which was made, and by which a large claim was established against the United States.
Yours, truly,
W. L. MARCY.
Hon. A. KENDALL, Esq.
WASHINGTON, January 24, 1852.
MY DEAR SIR: I received your communication of 19th inst., in relation to the non-payment of a proper remuneration to you by the
Western Cherokees, for services rendered in prosecution of their claim,
requesting an answer from me to certain interrogatories propounded.
I have delayed a reply, that I might reflect on the subject, with a
view to recalling to my mind the circumstances to which you refer.
You appeared at the Indian Office personally and by written communications and arguments on the part of the Western Cherokees, (John
Rogers and others,) and advocated their claim with ability and zeal.
Infidelity to their interests, you say, is the pretext for refusing a proper
compensation to you. This, I think, does you the grossest injustice in
reference to both character and compensation, and so I am sure the
records of the office will show it to be.
I cannot answer the interrogatories put, without reference to the papers on file in the Indian Office. I have taxed my memory in vain as
to particulars-of which I have, in the many years that have passed,
now more than six, since I left the Department, lost all reliable trace;
and I am engaged daily in Court from 10 A. M. to 4 and 5 o'clock
P. M.
If you think it important to you, I will, at your request, as soon as
my Court is over, go to the Indian Office and examine the papers on
file; which, however, will only enable me to answer as they may show
the facts-and, in my judgment, you will find in those papers better
evidence than my testimony would furnish.
With respect and regard, your obedient servant,
T. HARTLEY CRAWFORD.
Hon. AMOS KENDALL, Washington, D. C.
PORTLAND, MAINE, January 26, 1852.
SIR: I was indeed much surprised to learn, from your letter of the
19th inst., that the Western Cherokees, for whom you acted as agent
in negotiating the Treaty of 1846, have refused you all compensation
for your services, upon the pretext that you were not faithful to their
interests.
Having been one of the Commissioners on the part of the United
States, I had as good opportunity as any one to know the measures




26
taken and the grounds urged by the different branches of the Cherokee
nation in support of their respective claims.
As agent for the " Old Settlers, or Western Cherokees," you in the
outset took the ground that they were the.owners of the territory ceded
by the Treaty of 1828, and had the exclusive title thereto-which
ground you supported by an able written argument, manifestly the result of much labor and research. I have the more distinct recollection
of what relates to this claim of the Western Cherokees, from the fact
that your argument made a deep impression upon the Commissioners,
and it was not until after much deliberation that we came to the conclusion set forth in the fourth article of the Treaty. This mode of
avoiding the exclusive claim set up by the Western Cherokees was first
suggested by myself, and was acquiesced in by the other members of
the Commission on the part of the United States, as the only way by
which an adjustment could be made that would be ratified by all parties.
I well recollect your unwillingness to accede to the proposition, and
your strenuous efforts to produce a different result, that would secure
to the Western Cherokees the whole territory ceded by the Treaty of
1828.: It was difficult to avoid the claim. To admit it, would have prevented any adjustment of the serious difficulties existing between the
different portions of the Cherokee nation.
In coming to a decision upon this most perplexing branch of the case,
we were induced by a consideration of the merits of the Western Cherokees, set forth in your argument, to make more liberal provisions for
them than for either of the other branches of the Cherokee nation.
I know that you attended to the interests of those people ably and
faithfully, and I am not aware that you omitted anything that their interests required to be done, or that any one did more than you did in
their behalf.   With great respect,   ALBION K. PARRIS.
Hon. AMos KENDALL.
HOMEWOOD, January 30, 1852.
MY DEAR SIR: There has been some delay in the arrival of our
mails, and your letter of the 19th inst. has only just now been put into
my hands.
In reference to your action and interference in behalf of and advocating the claim of the Western Cherokees against the United States,
when I was in the War Office, my memory will not enable me to go
into detail, and state to you particular circumstances. But I well
recollect your many calls upon me in my official capacity, and of the energy and interest with which you pressed upon me those Indian claims.
You appeared to me to have paid much attention to the subject, and to
be in full possession of a knowledge of their claim, and the facts and
arguments upon which it rested. - I have the impression, too, that at
one time, in your calls upon me, you had with you papers drawn up by
yourself, in exposition and in support of those Cherokee claims.
Very respectfully, sir, your obedient servant,
Mr. KENDALL.                             WM. WILKINS.




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DEPARTMENT OF THE INTERIOR,
OFFICE INDIAN AFFAIRS, April 8, 1852.
SIR: With reference to the letter of the Hon. James Cooper, in
which he states that the "' Committee on Indian Affairs of the Senate
desire to know what has been the practice of your Department, during
and previous to your administration of its affairs, in relation to the
payment of attorneys' and agents' fees, commissions, &c., for the
prosecution of Indian and other claims against the United States, and
what authority for making such payments is recognised as legal by
the Department," I have the honor to report, that previous to the 1st
of October, 1846, as I am informed, the practice of this Office was to
allow attorneys and agents representing Indian claims the several
amounts contracted to be paid them by the parties whom they represented. At the period referred to this practice was discontinued, for
the reasons assigned in a communication from the Hon. W. L. Marcy,
then Secretary of War, addressed to Commissioner Medill, a copy of
which is herewith transmitted, for the information of the Committee;
and such amount only has since been allowed attorneys and agents as
fror  the nature of the services rendered, in the judgment of this
Office, was conceived "to be a fair and just compensation for their
trouble and expense."
The authority regarded as sufficient in making such payments is a
regular power of attorney, or instrument in writing, formally executed
by claimants, with satisfactory evidence of their identity, and that the
paper was fully explained to and understood by them previous to its
execution.       Very respectfully, your obedient servant,
L. LEA,
Commissioner.
Hon. J. J. CRITTENDEN, Jct'g Sec. Interior.