COTTTIT OIF OXi^^IIMIS. 
 
 The Cherokee Nation 
 
 The United States. 
 
 The Eastern Cherokees 
 
 The United States. J 
 
 The Eastern and Emigrant ] 
 Cherokees ' 
 
 V. 
 
 The Ignited States. J 
 
 No. 2319i). 1 
 
 :-No. 23:^14. 
 
 -No. 23212. 
 
 r Consolidated. 
 
 findings of fact and conclusions of law— filed may 18, 1905. 
 
 findings of fact. 
 
 The above con.solidated causes having- come on to be heard upon the 
 pleadinos and proofs, and having- Ix'cn argued by counsel, were sub- 
 mitted to the court for its decision, and the court being now here suti]- 
 ciently advised in the premises finds the facts as established ))v the 
 evidence in said consolidated causes to be as follows: 
 
 I. 
 
 Section QS of the act of Congress of July 1, 1902. entitled "'An act 
 to provide for the allotment of thi^ lands of the Cherokee Nation and 
 for the disposition of town sites therein described, and for other pur- 
 poses" (32 Stat., 726), is as follows: 
 
 ''Jurisdiction is hereby conferred upon the Court of Claims to 
 examine, consider, and adjudicate, with a right of appeal to the 
 SupHMue Court of the United Stat(\s by any party in interest feeling 
 aggrieved at the decision of the Court of Claims, any claim \\ hich the 
 Cherokee ti'ibe, or anvband thereof, arising- under treaty sti[)ulations. 
 may have against the United States, upon which suit shall he insti- 
 tuted within two years after the approval of this act; and also to 
 examine, consider, and adjudicate any claim which the United States 
 may ha\'e against said ti"ibe. or any band thereof. The institution, 
 prosecution, or defense, as th(> ease may be, on the part of the tribe or 
 ;-; 1405—00 1 
 
any band, of any such suit, shall be through attorneys employed and 
 to 1)0 compensated in the manner prescribed in sections twenty-one 
 hundred and three to twenty-one hundred and six, both inclusive, of 
 the Revised Statutes of the Ignited States, the tribe acting through its 
 principal chief in the employment of such attorneys, and the band 
 acting through a committee recognized by the Secretary of the Inte- 
 rior. The Court of Claims shall have full authority, by proper orders 
 and process, to make parties to any such suit all persons whose pres- 
 ence in the litigation it may deem necessary or proper to the final 
 determination of the matter in conti'oversy, and any such suit shall, on 
 motion of either party, be advanced on the docket of either of said 
 courts and be determined at the earliest practicable time.'' 
 
 The act of ^Slarch 3. 1903, entitled "An act making appropriations 
 for the current and contingent expenses of the Indian Department and 
 for fulfilling treaty stipulations with various Indian tribes for the fiscal 
 3'ear ending June thirtieth, nineteen hundred and four, and for other 
 purposes" (32 Stats.. 996). contains the following provisions: 
 
 ""Section sixty-eight of the act of Congress entitled 'An act to pro- 
 vide for the allotment of the lands of the Cherokee Nation, for the 
 disposition of town sites therein, and for other purposes,' approved 
 July tirst. nineteen hundred and two. shall be so construed as to give the 
 Eastern Cherokees, so called, including those in the Cherokee Nation 
 and those who remained east of the Mississippi River, acting together 
 or as two bodies, as the}" may be advised, the status of a band or bands, 
 as the case may he, for all the purposes of said sectionf J^roricJcd, 
 That the prosecution of such suit on the part of the Eastern Cherokees 
 shall be through attorneys emploved bj^ their proper authorities, their 
 compensation for expenses and services rendered in relation to such 
 claim to be tixed by the Court of Claims upon the termination of such 
 suit: and said section shall be further so construed as to require that 
 both -the Cherokee Nation and said Eastern Cherokees, so called, shall 
 be made parties to any suit which ma}" l)e instituted against the United 
 States under said section upon the claim mentioned in House of Rep- 
 resentatives Executive Document Numbered Three hundred and nine 
 of the second session of the Fifty-seventh Congress: and if said claim 
 shall be sustained in whole or in part, the Court of Claims, subject to 
 the right of appeal named in said section, shall be authorized to ren- 
 /der a judgment in favor of the rightful claimant, and also to determine, 
 ij as between the ditlevent claimants, to whom the judgment so rendered 
 I equitably l)elongs, either wholly or in part, and shall be required to 
 ' determine whether, for the purpose of participating in said claim, the 
 Cherokee Indians who remained east of the Mississippi River consti- 
 tute a part of the Cherokee Nation or of the Eastern Cherokees, so 
 called, as the case may be." 
 
 The claim mentioned in said H. R. Ex. Doc. No. 309, .57th Cong., lid 
 sess.. is therein referred to and described as follows: 
 
 •' BrM>Ji'ed, That the Attorney-General of the United States is hereby 
 requested to advise the House of Representatives, with all convenient 
 speed, in the case of the Eastern Cherokees against the United States. 
 Avhether or not the award rendered under the Cherokee agreement of 
 December 19, 1891. ratified l)y act. of Congress approved March 3. 
 1S93, as set forth in H. R. Ex." Doc. No. ISi. 53d Cong,. 3d sess.. and 
 
3 
 
 the Hndino-s of fact of the Court of Chiiiiis of April :i>. VM)-2. is /v.y 
 t/t/Ji/(h'ri/t'i: to review the opinion of the Department of Justice of 
 Deeeuiber !i, LSH5, and advise the House of Representatives whether 
 the reasons set forth in that opinion now constitute a vaHd defense for 
 the payment of said award." 
 
 II. 
 
 Prior to the year A. D. 1S'»S. the Cherokee Nation of Indians was 
 domiciled in (Teorgia. Alabama. Tennessee, North Carolina, and South 
 Carolina, where they owned and possessed about l-±.<>Oo,0(iu of acres 
 of land. In that year deputations from the upper and lower Cherokee 
 towns, duly authorized by their nation, went to the city of Washington, 
 the deputies of the former to make known to the President of the 
 United States the anxious desire of those whom they represented to 
 engage in the pursuits of agriculture and civilized life in the country 
 which they then occupied, and to reciuest the establishment of a division 
 line between the ui^pei' and lower tOAvns, so that they might the more 
 readily begin the establishment of lixed laws and a regular government; 
 the deputies of the latter to make known to the Pi'esident their desire 
 to continue the hunter life, and owing to the scarcity of game where 
 they then lived, their wish to remove across the Mississippi River on 
 some vacant lands of the United States. 
 
 After maturely considering the petitions of both parties, on January 
 9. 18UU, the President answered the same, saying that — 
 
 '"The United States, my children, are the friends of both parties, 
 and. as far as can be reasonably asked, they are willing to satisfy the 
 wishes of both. Those who remain may be assured of our patronage, 
 our aid. and good neighborhood. Those who wish to remove are per- 
 mitted to send an exploring party to reconnoiter the country on the 
 the waters of the Arkansas and White rivers, and the higher up the 
 better, as they will V)e the longer unapproached by our settlements, 
 which will begin at tlie mouths of those rivers. * "" ■•■ 
 
 '■ \Vhen this party shall have found a tract of country suiting the 
 emigrants, and not claimed by other Indians, we will arrange with them 
 ami you the exchange of that for a just portion of the country they 
 leave, and to a part of which, propoitioned to their numbers, they 
 have a right." 
 
 Relying on the promises of tlif President of the United States, as 
 above recited. the Cherokees who wished to remove explored the country 
 on the west side of the ^Mississippi and made choice of and settled tluMU- 
 selves down upon United States lands on the Arkansas and White 
 rivers, to which no other trib(M)f Indians had any just claim, and sub- 
 se(|ut'ntly sent their agents, duly (■mpow(n'ed to execute a treaty rflin- 
 <|ui-hing to the Unitcnl States all their right, title, and interest to all 
 lands which th(\v had left. oi' w liieli they were al)Out to li'uvc. and 
 belonging to them as a ))art of the Cherokee Nation, in all of which 
 lands. pro})ortioned to their nunil)ers, they had an e(|u;il right. 
 
 To the treaty of cession, which wassub.se([uently entere(l into on tht^ 
 Stli day of fluly. 1S17. the chiefs, headmen, and warriors of the 
 Cherokee Nation east of the Mississippi, as well as th(^ chiefs, head- 
 men, warriors, and deputies of the Cherokees on the Arkansas Ri\ er 
 were parties. 
 
H\^ articlo- 1 of said treaty "the chiefs, headmen, and warriors of 
 the whole Cherolvee Nation"' reded to the Cnited States certain hinds 
 described tht'rein, "'in part of the proportion of Uxnd in the Cherokee 
 Nation east of the Mississippi River, to which those now on the 
 Arlvansas and those atxnit to remove there are justly entitled/' 
 
 Bv article 2 said chiefs, headnien, and warriors also ceded to the 
 United States other lands therein described. 
 
 '*Art. -i. The contracting parties do also stipulate that the annuity 
 due from the United States to the whole Cherokee Nation for the year 
 one thousand eight hundred and eighteen is to be divided between the 
 two parts of the nation in proportion to their numbers, agreeal)ly to 
 the stipulations contained in the third article of this treaty; and to be 
 continued to be divided thereafter in proportion to their numbers: 
 and the lands to be apportioned and surrendered to the United States 
 agreeabh' to the aforesaid enumeration, as the proportionate part, 
 agreeably to their numbers, to which those who have I'emoved, and 
 who declare their intention to remove, have a just right, including 
 these with the lands ceded in the first and second articles of this treaty. 
 
 '"Art. 5. The United States bind themselves, in exchange for the lands 
 ceded in the tirst and second articles hereof, to give to that part of the 
 Cherokee Nation on the Ai'kansas as much land on said river and 
 White River as they have, or ma^^ hereafter receive from the Chero- 
 kee Nation east of the Mississippi, acre for acre, as the just proportion 
 due that part of the nation on the Arkansas, agreeably to their num- 
 bers; which is to commence on the north side of the Arkansas River, 
 at the mouth of Point Remove or BudwelTs old place; thence, by a 
 straight line, northwardlv, to strike Chataunga Mountain, or the hill 
 tirst above Shield's ferry, on AVhite River, rumiing up and between said 
 rivers for complement, the banks of which rivers to 1)e the lines; and 
 to have the above line, from the point of l)eginning to the point on 
 White River, run and marked, which shall be done soon after the rati- 
 hcation of this treaty; and all citizens of the United States, except 
 Mrs. P. Lovely, who is to remain where she lived during life, removed 
 from within the bounds as above named. And it is further stipulated 
 that the treaties heretofore between the Cherokee Nation and the 
 United States are to continue in full force with both parts of the 
 nation, and both parts thereof entitled to all the innnunities and priv- 
 ilege which the old nation enjoyed under the aforesaid treaties, the 
 United States reserving the right of establishing factories, a military 
 post, and roads within the boundaries al)Ove detined. 
 
 ''Art. 6. The United States do also bind themselves to give to all 
 the poor warriors who may remove to the western side of the Missis- 
 sippi River one riHe gun and ammunition, one blanket, and one brass 
 kettle; or, in lieu of the brass kettle, a beaver trap, which is to be 
 considered as a full compensation for the improvements which they 
 may leave, which articles are to be delivered at such point as the Presi- 
 dent of the United States may direct; and to aid in the removal of the 
 emigrants, they further agree to furnish tlat-bottomed boats and pi'o- 
 visions sufficient for that purpose; and to those emigrants whose 
 improvements add real value to their lands, the United States agree 
 to p;iv a fidl valuation for the same, which is to be ascertained by a 
 connuissioner appointed by the President of the United States for that 
 purpose, and paid for as soon after the ratification of this treaty as 
 
pructic:il>le. The boats and provisions promised to tlie cniigrants are 
 to be furnished t>y the agent on the Tennessee River, at such time and 
 phu-e as the emigTiuits may notify liim of. and it shall Ije his duty to 
 furnish the same. 
 
 ''Akt. 11. It is further agreed that the l)oundary lines of the lands 
 ceded to the United States by the lirst and second articles of this 
 treaty, and the boundary line of the lands ceded by the United States 
 in the tifth article of this treaty, is to be run and marked by a com- 
 missioner or connnissioners appointed by the President of the Ignited 
 States, who shall be accompanied l)y such connnissioners as the Chero- 
 kees may appoint,' due notice thereof to be given to the nation."* 
 (Treaty of July S. 1817, between the United States and Cherokee 
 Nation; 7 Stat. L.. 156. Indian AtJ'airs. Laws and Treaties (liiU3), 
 ^ol. -2. p. itb.) 
 
 III. 
 
 February 27, ISl'.L a treaty was entered into between the United 
 States and the "chiefs and headmen of the Cherokee Nation of Indians. 
 duly authorized and empowered l)y said nation."" the preamble of which 
 is as follows: 
 
 "'Whereas a greater part of the Cherokee Nation ha^e expressed an 
 earnest desire to remain on this side of the ^lississippi, and being- 
 desirous, in order to commence those measures which they deem Jieces- 
 sary to the civilization and preservation of their nation, that the treaty 
 between the United States and them, signed the eighth of July, eigh- 
 teen hundred and seventeen, might, without further delay, or the 
 trouble or expense of taking the census, as stipulated in the said treaty, 
 be tinally adjusted, have ottered to cede to the United States a tract of 
 country at least as extensive as that which they prt)bal)ly are entitled 
 to under its provisions, the contracting parties have agreed to and con- 
 cluded the following articles:*" 
 
 By Article I the Cherokee Nation cedes to the United States the 
 lands therein described, and the parties mutually declare "that the 
 lands hereby ceded by the Cherokee Nation are in fidl satisfVu-tion of 
 all claims which the United States have on them, on account of the 
 cession to a i)art of their nation who have or may hereafter emigrate 
 to the Arkansas: and this treaty is a tinal adjustment of that of the 
 eighth of July, eighteen hundred and seventeen."" 
 
 By Article \'I of said treaty it was estiiuated that the Cherokees 
 who had emigrated and those who had enrolletl for emigration together 
 constituted one-third j)art in numbers of the whole nation. (7 Stats.. 
 U»5; Indian Affairs. Laws and Treaties, vol. 2, pp. 124, I2t».) 
 
 IV. 
 
 On May (1. isi^is. the I'nited States entered into a treaty with the 
 "Cherokee Nation of Indians west of the ]\lississip])i." the pi'eamblt^ 
 of which is as follows: 
 
 "^Vhereas it being the anxious desire of the (xovcM'nnuMit of the 
 United States to secure to the Cherokee Nation of Indians, as well 
 those now livino- within the limits of the Territory of Arkansas as 
 
6 
 
 those of their friends and brothers who reside in States east of the 
 ^Mississippi and who may wish to join their brothers of the West, a 
 perni(in<nd home^ and which shall, under the most solemn guarantee of 
 the United States, be and remain theirs forever — a home that shall 
 never, in all future time, be embarrassed by having- extended around 
 it the lines, or placed over it the jurisdiction of a Territor}" or State, 
 nor be pressed upon by the extension, in any way, of any of the limits 
 of any existing Territory or State; and 
 
 ''Whereas the present location of the Cherokees in Arkansas being- 
 unfavourable to their present repose, and tending, as the past demon- 
 strates, to their future degradation and misery; and the Cherokees 
 being anxious to avoid such consequences, and yet not questioning 
 their right to their lands in Arkansas, as secured"to them bv treaty, 
 and resting also upon the pledges given them b}' the President of the 
 United States and the Secretary of War, of ^larch, ISIS, and Sth 
 October, IS:?!, in regard to the outlet to the west, and, as may be 
 seen on referring to the records of the War Department, still being- 
 anxious to secure a. permanent home and to free themselves and their 
 posterity from an embarrassing connexion with the Territor}" of 
 Arkansas, and guard themselves from such connexions in future; and, 
 
 '" Whereas it being important, not to the Cherokees only, but also to 
 the Choctaws, and in regard also to the question which may be agi- 
 tated in the future respecting the location of the latter, as well as the 
 former, within the limits of the Territory or State of Arkansas, as 
 the case maj^ be, and their removal therefrom; and to avoid the cost 
 which may attend negotiations to rid the Territory or State of Arkan- 
 sas whenever it may become a State, of either or both of those tribes, 
 the parties hereto do herebv conclude the following articles, viz:" 
 
 Article 1 defines the western boundarv line of Arkansas. 
 
 ■'Aet. 2. The United States agree to possess the Cherokees and to 
 guarantee it to them forever, and that guarantee is hereby solemnly 
 pledged, of seven millions of acres of land." all west of the western 
 l30undary of Arkansas and ])ounded as therein set forth, and '"In addi- 
 tion to the seven millions of acres thus provided for. and bounded, the 
 United States further guarantee to the Cherokee Nation a perpetual 
 outlet west, and a free and unmolested use of all the country lying west 
 of the western boundary" of the above-described limits, and as farw^est 
 as the sovereignty of the United vStates and their right of soil extend." 
 
 ■'Art. 3. The United States agree to have the lines of the above ces- 
 sion run without delav." and •'to remove immediately after the running- 
 of the eastern line from the Arkansas River to the southwest corner 
 of Missouri, all white persons from the west to the east of said line 
 * " " and also to keep all such from the west of said line in future." 
 
 By article 5 it was agreed "that the United States, in consideration 
 of the inconvenience and trouble attending the removal, and on account 
 of the reduced value of a great portion of the land herein ceded to 
 the Cherokees, as compared with that of those in Arkansas which were 
 made theirs by the treaty of ISIT and the convention of 1S11>, will 
 pay to the Cherokees. immediately after their removal, which shall be 
 within fourteen months of the date of this agreement, the sum of 
 fifty thousand dollars; also an annuity for three years of two thousand 
 dollars, towards defraying the cost and t4-ouble which may attend upon 
 going after and recovering their stock, which may stray into the Ter- 
 
ritorv in quest of the pastures from which they may be drixen : also 
 eio-ht thousand seven hundred and sixt}' doHars for spoihitions com- 
 mitted on them (the Cherokees). which sum will he in full of all 
 demands of the kind up to thi> date." * * ■' and "to pay two 
 thousand dollars aniuially to thr Cherokees for ten yrai's. to Ut^ 
 expended under the tlirection of the President of the Tnitcd States in 
 the education of their children in their own country. •• "" ■'■ ulso 
 one thousand towards tlie purchase of a printine- pres> and 
 type.*" •■ ■• " 
 
 "Akt. 7. I'he chiefs and headmen of the Cherokee Nation aforesaid, 
 for and in consideration of the foregoing' stipulations and provisions, 
 do herein' agree, in the name and l)ehalf of their nation, to give up. 
 and they do herel)y surrender, to the United States, and ag-rce to leave 
 the same within fourteen months, as hereinliefore stipulated, all the 
 lands to which they are entitled in Arkansas and which were secured 
 to them hy the treaty of Sth January (July). islT, and the convention 
 of the 27 "February. 'lsli». 
 
 ■'Art. S. The Cherokee Nation, west of the Mississppi. ha\inu- by 
 this ao'reement, freed themselves from the harassing and ruinous 
 etfects consequent upon a location amidst a white popidation. and 
 secured to themselves and to their posterity, under the solemn sanc- 
 tion of the guarantee of the United States, as contained in this agree- 
 ment, a large extent of unembarrassed country: and that their brothers 
 yet remaining in the States may Ijc induced to join them and enj(.»y 
 the repose and blessings of such a State in the future, it is further 
 agreed, on the part of the United States, that to each head of a 
 Cherokee family now residing within the chartered limits of (Tcorgia. 
 or of either of the States east of the Mississippi, who may desire to 
 remove west, shall be given, on enrolling himself for emigration, a 
 goodritie, a 1)lanket and kettle, and tive pounds of tobacco: (and to 
 each meml)er of his family one blanket), also a just compensation for 
 the property he may abandon, to be assessed by persoirs to be 
 appointed by the President of the United States. The cost of the 
 emigration of all such shall also be borne by the United States, and 
 good and suitat)le ways ojxmed. and provisions procured for their 
 comfort, acconmiodation, and support by the way, and provisions for 
 twelve months after their arri\al at the agency: and to each person, 
 or head of a family, if he take along with him four persons, shall be 
 paid inunediately on his arri\ iiig at the agency :ind reporting him>elf 
 and his family, or followers, a^ emigrants, and permanent settlers, in 
 addition to the ai>ove, /ifor/'i/, // ]i< dud fitti/ slmll /i,n\ < mni riif- 11 frinu 
 
 ii'itJiin fill' c]i(irtrl'<:(I rnii'ttx of tin Slut, i>f (JcniUjiii. t\\Q sum of HftV 
 
 dollars, and this sum in pro[)ortion to any greater or less mnnber that 
 may accompany him from within th(> aforesaid chartered limits of 
 the State of (xeorgia." 
 
 Pui'suant to the terms of this treaty, the Cherokee Nation, west of 
 tlu» Mississippi. peaceal)ly removed from their lands on the Arkansas 
 and White rivers, in tln^ Tei'ritory of Arkansas, to the lands lu'wly 
 ceded to them in the Indian Territory. The moneys agreed to ln' paid 
 to them under the hftli article have been fidly paitl and no claim is now 
 made on such account (7 Stats.. ;',! 1: Ind. Atl'aii's, Laws and Treaties, 
 vol. -2. pp. 2iH)-2(»S: II. R. Kx. Doc. 1n2, :>;id Cong., ;;d sess., 4: K(hI 
 IJook, p. t;.-)). 
 
V. 
 
 By treaty of February 14, 1833, between the United States and the 
 "Chief.s and headmen of the Cherokee Nation of Indians west of the 
 Mississii^pi,'' a change in the boundary lines of the lands ceded under 
 the treaty of 1S28 was agreed upon to adjust a conflict with the grant 
 previously made to the Creek Indians, and l\v article 1 of said treatj" 
 of 1833 the United States, in addition to renewing its guarantee and 
 pledge of 7,000,0(H) acres of land to the Cherokees, further agreed that — 
 
 ^'In addition to the seven million of acres of land thus provided for 
 and bounded, the United States further guarantee to the Cherokee 
 Nation a perpetual outlet west and a free and unmolested use of all 
 the country Ijnng west of the western boundary of said seven millions 
 of acres, as far west as the sovereignty of the United States and their 
 right of soil extend, * "^ "'' and letters patent shall be issued b}" 
 the United States as soon as practicable for the land hereb}" 
 guaranteed."" 
 
 By article 5 of said treaty it was provided that — 
 
 '■'These articles of agreement and convention are to be considered 
 supplementary to the treat}^ before mentioned between the United 
 States and the Cherokee Nation west of the Mississippi dated sixth 
 of Ma}^ one thousand eight hundred and twenty- eight, and not to vary 
 the rights of the parties to said treaty any further than said treatj' is 
 inconsistent with the provisions of this treaty now concluded, or these 
 articles of convention or agreement." (7 Stats., 41-4; Ind. Affairs 
 Laws, and Treaties (1903), pp. 283, 285.) 
 
 ,VL 
 
 •On or about February 28, 1835, a delegation of the Cherokee Nation, 
 east of the Mississippi, having full power and authority" to conclude a 
 treaty with the United States, stipulated and agreed with the Govern- 
 ment of the United States to submit to the Senate the matter of the 
 amount which should be allowed to their nation for their claims and 
 for a cession of their lands east of the Mississippi River, agreeing 
 for themselves to abide by the award of the Senate of the United 
 States and to recommend the same to their people for their final 
 determination. 
 
 The Senate on March 6, 1835, b}- resolution, advised that "a sum 
 not exceeding live millions of dollars be paid to the Cherokee Indians 
 for all their lands and possessions east of the Mississippi River." 
 
 The Cherokee delegation, after the award of the Senate had been 
 made, were called upon to submit propositions as to its disposition to 
 be arranged in a treaty, but they declined to do so, insisting that the 
 Senate had been misled to the injury of the Cherokees. and that the 
 matter of said award "should l)e referred to their nation and there, in 
 general council, to deliberate and determine on the subject in order to 
 insure harmonv and good feeling among themselves." (7 Stats.. -478; 
 Ind. Aflairs (19o3), p. 324; Sen. Ex. Doc. 215, 56th Cono-., 1st sess., 
 p. 77.) 
 
 On or about March 14, 1835, a certain other delegation of Chero- 
 kees who represented that portion of the nation east, who were in 
 favor of emigrating to the Cherokee country west of the Mississippi, 
 
9 
 
 but luid no authority or powei' from the nation gciun'tilly. entered into 
 propositions for a ti'eaty with .lohn F. Schernierhorn. eoniinissioiior 
 on the part of the United States, which they ug'reed to suhuiit to the 
 nation for final action and detei'mination. 
 
 Aniono- other things inchided in the draft of the proi)osed treaty, it 
 was proposed that the sum of ^5,000,000 should be paid to tlie mem- 
 bers of tiie Cherokee Nation east for their lands and possessions in 
 accordance with the above-<}uoted resolution or '"award" of the Senate, 
 but it was further proposed that there should be deducted from said 
 live millions the sum of i^i!r»5.no0 to defray the expenses of removing" 
 the mpmbers of the nation to the west. (Sen. Ex. Doc. 215, ."ititti 
 Cong., 1st sess.. pp. S1-S2.) 
 
 The proposed treaty was unanimously rejected by the Cherokee 
 National Council for the reason that the expense of removal was 
 therein' proposed to be deducted from the fund of |5v(i0(»,0U0. (Sen. 
 Ex. Doc. 215, 56th Cong., 1st sess., p. S3; Sen. Ex. Doc. 12ii, 25th 
 Cong,, 2d sess.. -15 J».) 
 
 During the consideration of this proposed treaty by the Cherokee 
 council members thereof a letter from President .Jackson, bearing 
 date ]\hirch 16, 1S35, was read to them purporting to explain the pro- 
 posed treatv. That letter is as follows: 
 
 '" I shall in the course of a short time appoint cf)nunissioners for 
 the purpose of meeting the whole bod\' of your people in council. 
 Thev will explain to you more fully my views and the nature of the 
 stipulations which are offered to you, 
 
 "These stipulations pro\'ide — 
 
 "1st. Eor an addition to the country already assigned to you west 
 of the Mississippi, and for the conveyance of the whole of it. I)y ])at- 
 ent, in fee simple, and also for the security of the necessary political 
 rights, and for preventing white persons from trespassing upon you. 
 
 '''2d. For the pa3"ment of the whole value to each individual of his 
 possessions in Georgia, Alabama, North Carolina, and Tennessee. 
 
 "3d. For the removal, at the expense of the Cnited States, of your 
 wdiole people: for their subsistence for a year after their arrival in 
 their new country and for a gratuity of one hundred and fifty dollars 
 to each yjerson. 
 
 '*4th. For the usual supply of rifles, blankets, and kettl(\s. 
 
 "5th. For the investment of the sum of four hundred thousand <h)l- 
 lars, in order to secure a permanent annuity. 
 
 '"6th, For adequate provisions for schools, agricultural instru- 
 ments, dom(>stic animals, missionary establishments, the su])port of 
 orphans, etc. 
 
 " Vth. For the payment of claims, 
 
 '"Sth. For granting pensions to such of your people as lia\'e lieen 
 disabled in the service of the United States. 
 
 "These are the general provisions contained in the arrangement. 
 l>ut there are many other details favorable to you which I do not .>top 
 here to enumerate, as they w ill be ])laced befori^ you in the arrange- 
 ment itself. Their total amount is four million live hundred thousand 
 dollars, which, added to the sum of five hundred thousand dollars, 
 estimated as the \alue of the additional land granted you. makes five 
 millions of dollars — a sum. if ei|ually divided among all your ]ieople 
 cast of the ^Fississippi, estimating I hem at ttMi thousand, wliicli I l>elieve 
 is their full number, would give live hundi'ed dollai-s to every man. 
 
 ;^l-t05— 05 2 
 
10 
 
 woman, and child in yoiu nation. There are few separate comnumi- 
 tie.s whose propert}- if divided would give to the persons composing 
 them such an amount." (Senate Doc. 215. 56th Cong.. 1st sess., 82.) 
 
 VII. 
 
 December 29. 1835. a treaty was drawn up between the United States 
 and the "(,'hiefs. headmen, and people of the Cherokee tribe of 
 Indians." which treaty is commonly called the "Treaty of New 
 Echota." 
 
 Neither the '" Westei'n Cherokees,"' or '' Old Settlers." nor the great 
 body of the "Eastern Cherokees" were parties to this treaty and they 
 at all times up to the making of the treaty of 1846 repudiated it on 
 the ground that its execution had not been authorized bv them or 
 their representatives in council. 
 
 The small number of Cherokees east of the Mississippi who negoti- 
 ated the treaty were called or styled the '"Treaty Party." 
 
 It was provided, among other things, by this treaty, as follows: 
 
 "Article 1. The Cherokee Nation hereby cede, relinquish, and con- 
 vey to the United States all the lands owned, claimed, or possessed by 
 them east of the Mississippi River, and hereby release all their claims 
 upon the United States for spoliations of every kind for and in con- 
 sideration of the sum of five millions of dollars, to be expended, paid, 
 and invested in the manner stipulated and agreed upon in the follow- 
 ing articles. But as a question lias arisen between the commissioners 
 and the Cherokees whether the Senate in their resolution l:)v whicli 
 they advi'^ed " that a sum not exceeding live millions of dollars be paid 
 to the Cherokee Indians foi' ail their lands and possessions east of the 
 ^Mississippi River' have included and made any allowance or considera- 
 tion for claims foi" spoliations, it is therefore agreed on the part of the 
 United States that this question shall be again submitted to the Senate 
 for their consideration and decision, and if no allowance was made for 
 spoliations, that then an additional sum of three hundred thousand 
 dollars be allowed lor the same." 
 
 Akt. 2. That as it was apprehended that the lands west of the 
 Mississippi which the United States by treaty of May 6. 1828. and 
 supplemental treaty of Fe))ruar3' 1-1. 1833. guaranteed and secured to 
 be conveyed by patent "to the Cherokee Nation of Indians" did not 
 contain a sufficient quantity of land for the accommodation of the 
 whole nation on their removal west, the United States, in consideration 
 of S500,<M)0. agreed to convey to said Indians l)y patent in fee simple a 
 further tract of land estimated to contain 8U(i.(»ou acres. 
 
 Akt. 3. The lands ceded b\ the treaty of February 14. 1833. includ- 
 ing the outlet, and those ceded by this treaty should l)e included in 
 one patent executed to the Cherokee Nation of Indians by the Presi- 
 dent of the United States. 
 
 "Art, S. The United States also agree and stipulate to remove the 
 Cherokees to their new homes and to subsist them one year after their 
 arrival there, and that a suificient number of steamboats and baggage 
 wagons shall be furnished to remove them comfortably and so as not 
 to endanger their health, and that a physician well supplied with medi- 
 cines shall accompany each detachment of emigrants removed bv the 
 Government. Such persons and families as. in the opinion of the 
 
11 
 
 eniiuT!itiiii»' aoent. are capahlt' of sul)sistini>' and rcmoviiiy themselves 
 shall be permitted to do so: and they shall be allowed in full for all 
 claims for the same twenty dollars for each memljer of their family 
 and. in lieu of their one year's i-ations, they shall be paid the sum of 
 thirty-three dollars and thirty-three cents, if the}' prefer it. 
 
 "8uch Cherokees also as reside at present out of the nation shall 
 remove with them in two vears west of the Mississippi and shall be 
 entitled to an allowance for removal and subsistence as above ]irovided. 
 
 ''Art. 15. It is expressh^ understood and agreed between the par- 
 ties to this treaty that after deducting- the amount which shall be actu- 
 ally expended for the payment for improvements, ferries, claims, for 
 spoliations, removal sul)sistence, and debts and claims upon the Cher- 
 okee Nation and for the additional (juantity of lands and goods for the 
 poorer class of Cherokees and the several sums to be invested for the 
 general national fund: provided for in the several articles of this treaty 
 the balance wdiatever the same may be shall be e(iually divided between 
 all the people l)elonging to the Cherokee Nation east, according to the 
 census just completed: and such Cherokees as have removed west since 
 June. 1.S83, who are entitled by the terms of theii' enrolment and 
 removal to all the benetits resulting from the final treaty l)etween the 
 United States and the Cherokees east, they shall also be paid for their 
 improvements according to their a})provai value before their removal 
 where fraud has not already been shown in their valuation." 
 
 By article 16 it was stipulated that the Cherokees should remove to 
 their new homes within two years from the ratification of this treaty. 
 
 The leaders of the treaty party who had signed the treat v of 1835 
 contended that the sum of S5.(M»(i.<)00 was not intended to include the 
 amount which might be required to remove them. 
 
 On March 1, ls36. the President sul)mitted to the Senate the follow- 
 ing supplementary articles, which were adopted as part of the treaty: 
 
 ""Article 1. It is therefore agreed tliat all the pi'eeni})tion rights 
 and reservations provided for in articles 12 and 13 shall l)e and are 
 hereby relin<,uished and declared void. 
 
 "Art. 2. Whereas the Chei'okee people have snp})osed that the sum 
 
 of five millionsof dollars fixed by the Senate in their resolution of 
 
 day of ]\larch. 1S35. as the value of the Cherokee lands and ])ossessioiis 
 east of the ^Mississippi River was not intended to include the amount 
 which may l)e required to remove them, nor the \alue of certain 
 claims which many of their peoj)le had against citizens of the I'nitetl 
 States, wdiich suggestion has l)een confirmed by the opinion expressed 
 to the War Dejjartment by some of the Senators who voted ujjon tlu^ 
 question, and whereas the President is willing that this sul)j(M-t should 
 be referred to the Senate' for theii- consideration, and if it was not 
 intended by the Senate that the al)ove-m(Mitioned sum of li\-e millions 
 of dollars should include the objects herein specitied that in that case 
 such further ])rovision should be made therefor as might a[)pear to 
 the Senate to be just. 
 
 ''Art. 3. It is therefore agreed that the sum of six liuii(l:'<'(l thousand 
 dollars shall l)i'. and the same !-■ hereby, allowed to the Cherokee peopli^ 
 to include the expense of theii- i-emo\aI. antl all claims of excry nature 
 and description against the ( iox eminent of the Cnited States not herein 
 otherwise expresslv i)ro\ide(l f'U-. aiul tol)e in lieu of the said rest'i'\ atious 
 and preemptions, and of the sum of three hundred thousand dollars f(,)r 
 
12 
 
 spoliations described in the 1st article of the above-mentioned treat3^ 
 This sum of six hundred thousand dollars shall be applied and dis- 
 tributed agreeably to the provisions of the said treaty, and any sur- 
 plus which may remain after removal and payment of the claims so 
 ascertained shall be turned over and belong- to the education fund. 
 
 ''But it is expressl}' understood that the subject of this article is 
 merely referred hereby to the consideration of the Senate, and if they 
 shall approve the same then this supplement shall remain part of the 
 treaty." 
 
 The treaty and the supplementarv articles were ratified and adopted 
 as one instrument and proclaimed .May 23, 1836. 
 
 VIII. 
 
 The Cherokee Indians who removed west of the Mississippi prior to 
 May 23, 1836, were called '' Western Cherokees.'' After the removal, 
 under the treaty of 1835-36, of the Cherokees who had remained in the 
 Cherokee country east of the Mississippi to the lands west of the Mis- 
 sissippi, the term "Western Cherokees" was no longer distinctive, 
 and the Cherokees who had theretofore been known as such were there- 
 after popularly known as ''Old Settlers." 
 
 The Cherokees who were domiciled east of the ^Mississippi River at 
 the time of the making of the treaty of 1835-36, according to the 
 census just then completed, were thereafter known as "Eastern 
 Cherokees," the great body of whom subsequenth', in 1838, moved to 
 the lands west of the Mississippi. 
 
 IX. 
 
 Sul^sequent to the treaty of 1828, and prior to the signing of the 
 treaty of Dece-nber 29, 1835, almost continuous efforts had been made 
 to induce the Cherokee people east to remove to the Indian Territory, 
 but without success. Under the provisions of said treaty of 1835 
 practically nothing- was accomplished in such direction until the sum- 
 mer of 1838. when the Cherokee Nation east 3'ielded to superior force, 
 and, under the supervision and direction of their own leaders, emi- 
 grated west of the Mississippi to the lands theretofore ceded to the 
 Cherokee >sation west. (Reel Book, p. 60.) 
 
 X. 
 
 The sum of $60(.),0(.>(i provided for l)y the supplementarv articles of 
 the treaty of 1835-36 was estimated to be more than sufficient to pay 
 the cost of removal and all claims of every nature and description 
 against the Government of the United States not otherwise provided 
 for in said treaty, and it was therefore provided that whatever surplus 
 might remain after removal and payment of claims should be turned 
 over and l)elong to the education fund. (7 Stat,, 189.) 
 
 On July 2, 1836, Congress contirmed the action of the Senate, as 
 evidenced by the supplementary articles of said treaty, and appropri- 
 ated, according to the terms of the third supplementarv article, here- 
 tofore ((uoted, ti6(»(i.(i(to for the removal of the Cherokees and for 
 spoliations. 
 
 This sum proved to be insufficient for the purposes for which it was 
 appropriated. 
 
13 
 
 The treaty of Deeeinber i'..». ls;;o. was refused reco^-nition hy tlie 
 ^reat l»o(ly of the C'herokees. They protested apiiiist it thi'oiig-li their 
 constituted authorities on lunnerous occasions and refused to j^i\e it 
 any i'ecoy;'nition. dechired it to l)e uiiauthoi-ized hy the Cherokee peo- 
 ple and a f I'aud on the United States. (Sen. Ex. Doc. oHi!. aOth C'ono-.. 
 1st sess.. pp. 7-10.) 
 
 TheCherokees having- nuuh' no jjreparations to reniox'e. as required 
 ]>y the terms of the treaty of 1835. (len. ^^'intiekl Scott, with an army 
 of men in ]May. 1S8S. phiced them in camps of concentration under 
 military controL preparsitory to their removal l)_v force. Thcrmpon. 
 John lioss souulit to make a treaty with the United States. l)ut his 
 overtures were rejected and the i-emoval of the Uherokees by force 
 was insisted upon by the United States, except in the alternative that 
 the Indians would agree to remove themselves peaceably. 
 
 In the latter part of May. ISoS. tlie President transmitted to Congress 
 a lettei liearing date May is. ls;-],s. from the Secretary of AVar to 
 .John Ross, principal chief of the Cherokee Nation, wherein the fol- 
 lowing appears: 
 
 ■'If it be desired by the Cherokee Xation that their own agent 
 should have charge of their emigration, their wishes v.ill be com])lied 
 with and instructions be given to the commanding general in the 
 Cherokee country to enter into arrangements with them to that effect: 
 with regard to the expense of this operation which you ask may l»e 
 defrayed bv the United States, in the opinion of the undersigned tlie 
 request ought to be granted, and an application for such furthtM' sum 
 as may be recpiired for this purpose shall be made of Congres>." 
 
 This last conmiunication was transmitted to Congress, and on May 
 -Id. 183s. the House of Representatives, by resolution, required a state- 
 ment of the further amount necessary to pay for the removal and >ub- 
 sistence of the Cherokees (ibid.. 78). On ^lay '25. 1838, the Secretary 
 of War submitted an estimate to the Speaker of the House of Repre- 
 sentatives "'of the amount that would be required" to remove 15.840 
 Cherokees and to sul)sist is. ;',;;(; Cherokees. stating that the further 
 siuii necessary for this puri)ose was SI. 0-1:7. o(;7 (ibid.. 7s), and on June 
 12, 1838. Congress api:)ropriated this amount with the proviso that no 
 part of it should be deducted from the S5.(MI(i.()(io fund. (5 Stat. L.. 
 p. 212: Finding VI. Cong., lOoSC.) 
 
 XI. 
 
 The appropriation of June 12. ls;;s, for the removal of the Chero- 
 kees. was used in i)art to meet tlie expenses of remo^'ing• certain fugi- 
 tive Creeks then living auKuig them. The Cherokt>(> council, by 
 resolution of July 21. ls:;s. aullioii/ed John Ross to undertalce the 
 self-emigration of the C'herokees. miderwhat tliey t'laimed to be the 
 '■ special understanding with the Hon. Sc^cretary of "War:** that such 
 emigration should be at the exix'iise of th(^ United Staters, and by 
 resolution of July 26, 183S. autliori/ed Ross and associate-; to arrange 
 for"th(^ payment of such >uins of money l)y the United States as 
 might be necessary for the renioxal" "'of the Cherokee ])eop!e."" 
 
 The Cherokee council, about the same time and bet()re the ])ayinent 
 of any monev. passed a resolution on August 1. l>.".s. declai'ing that 
 they did not recognize the treaty of New Hchota. and that they would 
 
14 
 
 not in any manner give their sanction or approval of it. (Record, 
 pp. L>13, 215, 217.) 
 
 The amount appropi'iated by Cong-ress June 12, 1838, for the 
 '•object specified in the third supplementary article of the treaty with 
 the Cherokees in 1835" for removal expenses, etc., to wit, 11,047,067, 
 remained untouched in the Treasury on January 1, 1839, as appears 
 from the books of the United States Treasurv. (Receipts and Expen- 
 ditures 1839, p. 260.) 
 
 XII. 
 
 The cost of the removal of the Eastern Cherokees from Georgia to 
 the Indian Territory, paid and expended by the United States, was 
 $1,495,485.92, which amount w^as obtained as follows: 
 
 From the $600,000 appropriated July 2, 1836. .?335, 105. 91 
 
 From the §1,047,067 appropriated June' 12, 1838 49, 095. 31 
 
 From the 85,000,000 appropriated .Tnly 2, 1836 1,111, 284. 70 
 
 Total 1, 495, 485. 92 
 
 (Sen. Ex. Doc. 215, 56th Cong.. 1st sess., p. 95; Finding V, Cong, 
 10386.) 
 
 That portion of the cost of suljsisting the Eastern Cherokees after 
 their arrival in the Indian Territory, which was at first deducted by 
 the United States from the $5,0(>0,000 treaty fund, was subsequently 
 refunded and paid to the Cherokees, as hereinafter shown. (Finding- 
 IV, Cong.. 10386.) 
 
 Of said amount of ^51,495,485.92 paid by the United States for the 
 removal of the Eastern Cherokees from Georgia to the Indian Terri- 
 tory, as set forth above, 'D137,74<_» was paid for the removal of 2,200 
 of such Cherokees who had voluntarily emigrated (27 C. Cls. Reports, 
 p. 3, Finding III) at a cost to the Government of $61.70 per capita 
 (Senate Doc^ No. 215, 56th Cong., 1st sess., p. 78), and $1,357,745.92 
 were. paid to John and Lewis Ross for the removal of the main body 
 of the remainder of such Cherokees in 1838 (Senate Doc, supra). 
 
 The amount of $1,111,284.70. charged against the $5,000,000 fund, 
 as before set forth, still remains charged against that fund (Senate 
 Doc. 215, 56th Cong., 1st sess., p. 95). (Finding Y, Cong., 1(»386.) 
 
 XIII. 
 
 After the removal of the Eastern Cherokees to the lands west of the 
 ^lississippi certain leaders of both the Western and Eastern Cherokees 
 met at Illinois Camp Grounds and there, on July 12, 1838, entered 
 into an "Act of l^nion between the Eastern and Western Cherokees,"' 
 which is as follows: 
 
 " Whereas our fathers have existed as a separate and distinct nation 
 in the possession and exercise of the essential and appropriate attri- 
 butes of sovereignty from a period extending into antiquity, beyond 
 the records and memory of man; and .whereas these attributes, with' 
 the rights and franchises which the}" involve, remain in full force and 
 / virtue, as do also the national and social relation of the Cherokee peo- 
 / pie to each other and to the body politic, excepting in those particulars 
 / which have grown out of the provisions of the treaties of 1817 and 
 1819 between the United States and the Cherokee Nation, under which 
 
15 
 
 a portion of our people ronio\e<l to this country and beeunio a sopai'ate 
 community (but the force of circunistance.s have recently c()nii)ell('(l the 
 body of the Eastern (Jiierokees to remove to this c(jutitrv. thus brino- 
 inu- too-cther again the two In'anches of the ancient Cherokee family), 
 it lias l)ecome essential to the o-eneral wcdfare tluit a union should lie 
 formed and a system of o'overnment matured adapted to their picscut 
 condition, and providing equally for the protection of each indi\idutil 
 in the enjoyment of all his right-^: 
 
 ""Therefore we. tlie people composing the Eastern and \\'c<tern 
 Cherokee Nation, in national convention a.ssembled. by \irtue of our 
 original unalienal)le rights, do herel)y solemnly and nnitually agree to 
 form ourselves into one body j)oiitic under the style and title of the 
 Cherokee Nation. 
 
 '"In view of the union now formed, and for the purpose of making 
 satisfactory adjustment of all unsettled business which may have arisen 
 before the consummation of this union, we agree that such business 
 shall I)e settled according to the provisions of the respi^ctive laws 
 under which it originated, and the courts of the Cheroke(^ Nation shall 
 1)6 governed in their decisions accordingly. Also, tliat the delegation 
 authorized by the Eastern Cherokees to make arrangements with 
 ^Major-General Scott for their removal to this country shall contiiuie 
 in charge of that business, with their present powers, until it shall l)e 
 finally closed: and, also, that all rights and titles to put)lic Cherokee 
 lands on the east or west of the River Mississippi, with all other public 
 interests which may have vested in either branch of the Cherokee 
 family, whether inherited from our fathers or derived from any other 
 source, shall henceforward ve.>t entire and unimpaired in tiie Cherokee 
 Nation as constituted by this union. 
 
 "•(riven under our hands at Illinois camp grounds this twelfth day of 
 July, 1838. 
 
 "'By order of the national convention: 
 
 •"(tkokok Lc^wky. 
 
 " i',r.^!(lenf of the FjiM' n, <'lnrul;r.s. 
 his 
 
 ■■(teoki;!-: x Guess, 
 
 mark 
 
 •• Prrsidnf ofthr Wrstm, Cln-ml.n^s:' 
 (117 C. S., 30:3-805.) 
 
 On the tith of September following, the Cherokees who had agreed 
 upon the union adopted a constitution of government which, after 
 reciting that the Eastern and Western Cherokees had become reunited 
 in one body politic under the style and title of the Ciieroki^e Nation, 
 proceeds as follows: 
 
 '"Th(^ lands of the Cherokee Nation sliall riMuain connnon property; 
 but the improvements made thereon, and in the possession of the citi- 
 zens of the nation, are t\w e.\clusi\-e and indideasible property of the 
 citizens, respectivtdy. who made or may rightfully l)e in po>se>sion of 
 them: l'rnri(l,-<J. That the citizens o^" the nation, possessing exc-lusivc 
 and indefeasible rights to their improvements, as expressed in tlii> 
 article, shall possess no right oi' ])ow(>r to disjiose of their impro\"e- 
 ments in any manner whate\'er to the Cnited States, indix idual States, 
 or to individual citizens tlaMvof: and that whenexer any citizen shall 
 remoN'c witli his etl'ects out of the limit of this nation and bccoiue a 
 
16 
 
 citizen of any other government, all his rights and privileges as a citi- 
 zen of this nation shall cease: Provided, nevertJieles)^^ That the national 
 council shall have power to readmit b}" law to all the rights of citizen- 
 ship any such person or persons who may at any time desire to return 
 to the nation, on memorializing the national council for such readmis- 
 sion.'' (117 U. S., 305.) 
 
 At a meeting of the Cherokee people held at Tahlequah. in the 
 Cherokee Nation, on January 16, IStto. the following declaration was 
 made : 
 
 "■ Whereas a meeting of the Cherokee people was agreed on and 
 requested by the United States agent and the assistant principal chief 
 and others, on the 15th instant, at this place, and general notilication 
 given throughout the country to all parties whatever, recpiesting their 
 prompt attendance for the purpose of ascertaining fairly and properly 
 the sense and choice of a majority of the nation in relation to the sub- 
 ject of their future government; and whereas we, the people of the 
 Cherokee Nation, having assembled under this call, and having heard, 
 read and interpreted the act of union adopted by the Eastern and 
 Western Cherokees, dated July, 1889, and the constitution framed by 
 a convention composed of members from both parties in pursuance of 
 the provisions of the aforesaid act, and being satisfied with the same, 
 we do herel)y approve, ratify, and conliru) the said act of union and 
 the constitution, and acknowledge and make known that the govern- 
 ment based upon this act and this constitution is the legitimate gov- 
 ernment of the Cherokee Nation and of our choice, and that it has 
 both our confidence and support. 
 
 •'Done at Tahlequah. Cherokee Nation, the 16th dav of January. 1840. 
 
 •'J. Yann. 
 
 ^^ Asx/stcod Pr!nr/p(d Chief. 
 '^W\ Shorey Coodey. 
 ''^President Xidhrntd Committte." 
 
 (27 Ct. Cls.. 32) 
 
 In January, 1S4<X General Arbuckle. the military commander at 
 Fort Gibson, in charge of the Cherokee country in Indian 1 erritory. 
 reported to the Secretar}" of War with regard to the act of union and 
 the constitution above referred to — 
 
 "The act of union referred to in one of the accompanying decrees 
 is certainly not entitled to credit, as there were a very small number 
 of the old settlers present who concurred in it. and they acted without 
 authority." 
 
 He added: 
 
 "This change will no doubt be severelv felt by the old settlers gen- 
 erally, who in their kindness invited the late emigrants to enjov with 
 them the lands they have secured for themselves, and who have in less 
 than one year after their arrival formed a new government for the 
 nation in which the old settlers are not represented by a single indi- 
 vidual of tlieir own choice." 
 
 And on the 29th Januarv he wrote to the Commissioner of Indian 
 Attairs: 
 
 "A meeting was called for both parties to attend, consisting of old 
 settlers and nev,- emigrants, Cherokees, the object being to ascertain 
 
which i);a'ry had the majoritv. The old settlers did not attend. a> they 
 were doul)tless well aware that the\- were in the minority. There 
 were ahout Tot) voters present, who were in favor of the new yovern- 
 nient; they voted in favor of the constitution and laws of the Koss 
 party." ('27 Court of Claims, 3o.) 
 
 Notwithstanding said act of union and subsequent proceedinus there 
 remained much bitter feeling between the Eastern Cherokee,- and the 
 ■'Old Settlers." and violent measures were fretjuently resorted to on 
 l)oth sides to carry out their purposes. These circumstances, among- 
 others, led to the making of the treaty of August ti. 1846 (!• Stats, h, 
 871). wherein it is recited that — 
 
 "Serious dithculties have for a considerable time past existed 
 between the ditferent portions of the people constituting and recog- 
 nized as the Cherokee Nation of Indians, which it is desiral)le should 
 be speedily settled, so that peace and harmony may l;)e restored among 
 them: and whereas certain claims exist on the part of the Cherokee 
 Nation and portions of the Clierokee people, against the United States:" 
 
 therefore. " with a view to the tinal and amicable settlement of the 
 difficulties and claims before mentioned " and "to make the Eastern 
 and Western Cherokees parties to the treaty of New Echota. which 
 they had never conceded themselves to be " ( Wf^sfern C 'h<:^i'()hee>< v. Uu !t>'d 
 Sfattx^ •!' Ct. Cls., 36. par. 3), it is agreed, among other things, as 
 follows: 
 
 "AftTiCLE 1. That the lands now occupied 1)V the Cherokee Nation 
 shall l)e secured to the whole Cherokee people for their common use 
 and t)enetit: and a patent shall be issued for the same, including the 
 eight hundred thousand acres purchased, together with the outlet west, 
 promised by the United States, in conformity with the provisions 
 relating thereto, contained in the third articde of the treaty of 1835 
 and in the third section of the act of Congress approved ^Slay twenty- 
 eighth, 183U. which authorizes the President of the United States, in 
 making exchanges of lands with the Indian trilies. to assure the tribe 
 or nation with which the exchange is made, that the United States will 
 forever secure and guarantee to them, and their heirs or successors, 
 the countrv so exchanged with them: and, if thev prefer it. that the 
 United States will cause a patent or grant to be made and executed to 
 them for the same: Pmrldf-d. i/I>n/i/s. That sucli lands shall revert to 
 the United States, if the Indians become extinct or abandon the 
 same. 
 
 "Art. II. All difficulties and ditierences heretofore existing between 
 the several parties of the Cherokee Nation are hereby settled and 
 adjusted, and shall, as far as possible, be forg-otten and forever l)uried 
 in oblivion. All party distinctions shall cease, except so far as they 
 may be necessary to carry out tliis convention or treaty. A general 
 amnesty is herel»y declared. .Vll ottences and crimes committed V)v a 
 citizen or citizens of the Cherokee Nation against the nation or against 
 an individual or individuals are herel)y pardoned. All Cherokees who 
 tire now out of the nation are invited and earnestly re«[ue>ted to return 
 to their homes, where they may live in peace, assured that they shall 
 not be prosecuted for any otfcnce heretofore committed against th(^ 
 Cherokee Nation or any individual thereof. And this pardon and 
 amnesty shall extend to all who may now be out of the nation and who 
 :-ji40o— o.'i— •-] 
 
18 
 
 shall return thereto on or before the 1st day of December next. The 
 several ])arties a^ree to unite in enforcinj^" the laws against all future 
 offenders. Laws shall be passed for equal protection and for the 
 security of life, liljerty, and property; and full authorit}" shall be 
 given by law to all or any portion of the Cherokee peo])le peaceably 
 to assemble and petition their own government or the Government of 
 the United States for the redress of grievances, and to discuss their 
 rights. All armed police, light horse, and other military organiza- 
 tion shall be a)jolished, and the laws enforced l)y the civil authority 
 alone. 
 
 " No one shall be punished for any crime or misdemeanor, except on 
 conviction by a jury of his country and the sentence of a court duly 
 authorized by law to take cognizance of the oftence. And it is further 
 agi'eed all fugitives from justice, except those included in the general 
 amnesty herein stipulated, seeking refuge in the territory- of the United 
 States, shall be delivered up by the authorities of the United States to 
 the Cherokee Nation for trial and ]3unishment. 
 
 ''Article III. Whereas certain claims have been allowed by the sev- 
 eral boards of commissioners heretofore appointed under the treaty of 
 1835 for rents, under the name of improvements and spoliations, and 
 for property of which the Indians were dispossessed, pro\ided for under 
 the IHth article of the treaty of 1835; and whereas the said claims have 
 been paid out of the ^'S.OiiO,*!!)!) fund; and whereas said claims were 
 not justly chargeal)le to that fund, but were to be paid by the United 
 States, the said Ignited States agree to reimbui'se the said fund the 
 amount thus charged to said fund, and the same shall form a part 
 of the aggregate amount to ))e distributed to the Cherokee people, as 
 provided in the Hth article of this treaty; and whereas a further 
 amount has been allowed for reservations under the provisions of the 
 13th article of the treaty of 1835 by said commissioners, and has been 
 paid out of the said fund, and which said sums were properly charge- 
 able to, and should have been paid by, the United States, the said 
 United States further agree to reimburse the amounts thus paid for 
 reservations to said fund; and whereas the expenses of making the 
 treaty of New Echota were also paid out of said fund, when they 
 should have been borne by the United States, the United States agree 
 to reimburse the same and also to reimburse all other sums paid to 
 any agent of the Government and improperly charged to said fund; 
 and the same shall also form a part of the aggregate amount to be dis- 
 tributed to the Cherokee people, as provided in the 0th article of this 
 treaty. 
 
 *'Art. IV. And whereas it has been decided by the board of com- 
 missioners recently appointed hy the President of the United States to 
 examine and adjust the claiius and difficulties existing against and 
 between the Cherokee people and the United States, as well as between 
 the Cherokees themselves, that under the provisions of the treaty of 
 1828, as well as in conformity with the general policy of the United 
 States in relation to the Indian tribes, and the Cherokee Nation in par- 
 ticular, that that portion of the Cherokee people known as the 'Old 
 Settlers,' or 'Western Cherokees' had no exclusive title to the ter- 
 ritory ceded in that treaty, but that the same was intended for the use 
 of, and to be the home for, the whole nation, including as well that 
 portion then east as that portion, then west of the Mississippi; and 
 wliereas the said board of commissioners further decided that, inas- 
 
19 
 
 much as the territory liefore mentioned became the common property 
 of the whole Cherokee Nation by the operation of tiie treaty of lS:>,s, 
 the Cherokees then west of the Mississippi, by the equita))le operation 
 of the same treat\% acquired a common interest in the hinds occupied 
 l>y the Cherokees east of the Mississippi River, as well as in those 
 occupied l)y themselves west of that river, which interest should have 
 been provided for in the treaty of l.s35, but which was not, except in 
 so far as thev. as a constituent portion of the nation, retained, in pro- 
 portion to their numbers, a common interest in the country west of 
 the Mississippi, and in the general funds of the nation; and therefore 
 they have an equitable claim upon the United States for the value of 
 that interest, wiiatever it may be, 
 
 •■ Now, in order to ascertain the value of that interest, it is agreed 
 that the following principle shall be adcjpted, viz: All the investments 
 and expenditures which are properly chargeable upon the sums granted 
 in the treat}' of 1S35, amounting in the whole to five millions six hun- 
 dred thousand dollars (which investments and expenditures are partic- 
 ularly enumerated in the 15th article of the treaty of lS35),to be tirst 
 deducted from said aggregate sum, thus ascertaining the I'esiduum or 
 amount which would, under such marshalling of accounts, l)e left for 
 ptv rapifii distribution among the Cherokees emigrating under the 
 treaty of 1885, excluding all extraAagant and improper expenditures, 
 and then allow to the Old Settlers (or ^^'estern Cherokees) a sum 
 equal to one-third part of said residuum, to be distributed prr r<ij>ifa 
 to each individual of said party of 'Old Settlers," or " AVestern 
 Cherokees.' It is further agreed that, so far as the Western Cher- 
 okees are concerned, in estimating the expense of removal and >-ul»- 
 sistence of an Eastern Cherokee, to be charged to the aggregate fund 
 of tive million six hundred thousand dollars above mentioned, thesunr-^ 
 for removal and subsistence stipulated in the Sth article of the treaty 
 af ls;-35, as comnuitation money in those cases in which the parties 
 entitled to it removed themselves, shall be adopted. And. as it atfects 
 the settlement with the Western Cherokees, there shall be no deduc- 
 tion from the fund before mentioned in consideration of any pay- 
 ments which may hereafter ])e nrade out of said fund: and it is herrl»y 
 further understood and agreed that the principle above detined shall 
 endjrace all those Ciierokees west of the ^Mississippi who emigrated 
 prior to the treaty of 1835. 
 
 "• In the consideration of the foregoing stipulation on the part of 
 the United States, the "Western Cherokees' or •Old Settlers," hci-cby 
 release and ciuitclaim to the United States all right, title, or cl;iim 
 they may have to a conuuon property in the Cherokee lands cast of 
 the ^lississippi River, and to exclusive ownership to the lands ceded 
 to theln In' the treaty of 1833 west of the Mississippi, including the 
 outlet west, consenting and agreeing that the said lands, together with 
 the eight hundred thousand acres ceded to the Cherokees by the treaty 
 of 1S35, shall be and remain the common property of the whole 
 Cherokee people, themsehc^ iiicludetl." 
 
 Articles It. lo. and 11 are as follows: 
 
 Art. t>. The United States agree to luake a fair and just settlement 
 of all moneys due to*the Cherokees and subject to the per ca])ita divi- 
 sion under'the treaty of lii^Hh Deeemlxu-. 1S35. which said settlement 
 shall exhil)it all money properly expended under said treaty and sludl 
 
20 
 
 embrace all suiiis paid for improvements, ferries. spoliatioDS, removal, 
 and subsistence, and commutation thei'efor, debts and claims upon the 
 Cherokee Nation of Indians for the additional quantity of land ceded 
 to said nation; and the several sums provided in the several articles 
 of the treatv to be invested as the general funds of the nation; and 
 also all sums which may be hereafter properly allowed and paid under 
 the provisions of the treaty of 1835, the aggregate of which said sev- 
 eral sums shall l.)e deducted from the sum of six millions six hundred 
 and forty-seven thousand and sixtA'-seven dollars, and the balance thus 
 found to be due shall be paid over per capita in equal amounts to all 
 those individuals, heads of families, or their legal representatives, 
 entitled to receive the same under the treaty of 1835 and the supple- 
 ment of 1836, being all those Cherokees residing East at the date of 
 said treaty and the supplement thereto. 
 
 ''Art. 10. It is expressly agreed that nothing in the foregoing- 
 treaty contained shall be so construed as in any manner to take away 
 or at)ridge any rights or claims which the Cherokees now residing in 
 States east of the 5lississippi River had. or may have, under the treaty 
 of 1835 and the supplement thereto. 
 
 ''Art. 11. Whereas the Cherokee delegations contend that the 
 amount expended for the one year's subsistence, after their arrival in 
 the West, of the Eastern Cherokees is not properly chargeable to the 
 treat}' fund, it is hereby agreed that that question shall be submitted 
 to the Senate of the United States for its decision, which shall decide 
 whether the subsistence shall be borne by the United States or the 
 Cherokee funds, and if by the 'Cherokees, then to say whether the sub- 
 sistence shall be charged at a greater rate than thirtv-three 33 100 dol- 
 lars per head; and also the question, whether the Cherokee Nation 
 shall be allowed interest on whatever sum may l)e found to be due the 
 nation, and from what date and at what rate per annum." 
 
 XV. 
 
 The Senate of the United States, acting as umpire under Article II 
 of the treatv of 1816, on September 5, 1850, passed the following 
 resolution: 
 
 " Bcsnlr^-il l>ii fht Srnatr of the United Statc!<, That the Cherokee 
 Nation of Indians are entitled to the sum of one hundred and eighty- 
 nine thousand four hundred and twent3'-two dollars and seventy six 
 cents for subsistence, -being the diflerence between the amount allowed 
 by the act of June 12, 1838. and the amount actually paid and expended 
 by the United States, and which excess was improperly charged to the 
 treaty fund in the report of the accounting officers of the Treasury. 
 
 " Resol rrd. That it is the sense of the Senate that interest at the rate 
 of live per cent per annum should be allowed upon the sums found due 
 to the Eastern and Western Cherokees, respectively, from the twelfth 
 day of June, eighteen hundred and thirty-eight, until paid." (Sen, 
 Journal, 31st Cong., 1st sess., p. 602.) 
 
 This amount was accordingly appropriated by Congress for that pur- 
 pose by the act of September 30, 1850, with the proviso that interest 
 be paid on the same at the rate of 5 per cent per annum, according to 
 a resolution of the Senate of the 5th of September. 1850 (H Stat. L., 
 p. 556). (Finding VII, Cong., 10386.) 
 
21 
 
 XVI. 
 
 Under the fourth article of the treaty of 1846 the aecountiny ottieers 
 of the United States made and prepared for settlement the ac-count 
 therein provided for. wherehy it appears that upon crediting- tlie treaty 
 fund therein mentioned as the article prescribes, there would remain 
 a balance of SI, 571. 34-6. o5. one-third of whicli distributatile to the 
 Western Cherokees amountijio- to S.yJ3. -1-1:8.85. Coug-ress in point of 
 fact on such account appropriated ''55o2.T82.l8, and this amount, \\ith 
 interest thereon at 5 per cent from June 12. 1838. was thereupon paid 
 and distributed to the Western Cherokees y>ty riipitii. The account is 
 as follows: 
 
 The fund provided by the treaty cif ,ls;]5 \va^^ taken to he sr>, HOO. olXi. uo 
 
 From which was deducted under the treaty of 1S46 
 (4th article) the sums chargealile under the h5th 
 article of the treaty of 1835. which, accordinu: to the 
 report of the accounting otficers, stood tlius: 
 
 For improvements si , 
 
 For ferries 
 
 For spoliations 
 
 For removal and subsistence of 1S.02H Indians, at 
 
 S53.3oA per head 
 
 Debts and claims upon the Cherokee Nation, viz: 
 
 Nati.inal debts 1 10th article ) Sis, mi. 06 
 
 Claims (if United States citizens i Idtli 
 
 article ) HI, 073. 49 
 
 Cherokee connnittee ( 12th article"). . . 22, 212. 7H 
 
 101,348.31 
 
 Amount allowed United States for additional (juantitv 
 
 of land ceded ". 500, 000. 00 
 
 Amount invested as a general fund of tiie Nation 500. 880. Oo 
 
 4. 02S. fi53. 45 
 
 540, 572 
 
 27 
 
 159,572 
 
 12 
 
 264, S94 
 
 09 
 
 961,386. 
 
 6(i 
 
 "Which, being deducte<l from the treaty fund of S5.600,00ti, leaves 
 the residuum contemplated b\ the 4th article of the treatv 
 
 of 1846 ^ ■. 1, 571, 34(i. 55 
 
 One-third of which 1 )alance would be 523. 448. S5 
 
 The balance found by this accounting to i)e due the Western Chero- 
 kees was appropriated for and paid to the individual distrilnitees by 
 and luider the provisions of the act of September 3ii. 1850 (!ri Stats.. 
 55<;). 
 
 Under the ninth article of the treaty of 1846 the accounting ottieers 
 of the United States made and prepared for settlement the account 
 provided for by that article, whereby it appears that after crediting 
 the treaty fund with the cost of subsistence of the Indians at the AVest. 
 with which it had been charged, there remained a l)alancc due of 
 'S914.<i26.13. Congress accordingly, in addition to the amount of 
 ^181M22.7r). which had been appropriated for by the act of Septem- 
 ber 30. 185() (9 Stats.. 55H). puivsuant to the resolution of thi^ Senate, 
 by the act of February 2T, l>i-51. appropriated the furtlier sum of 
 'S724.<!o3.3T. and there was thereupon paid and distributed to the 
 Eastern Cherokees jirr fdj/ifa the al)ove amoimts, with interest thereon 
 at 5 per cent from Jitne 12. Is3s. 
 
22 
 
 This account in detail is as follows: 
 
 Appropriation, July 2, 1836 85, 000, 000. 00 
 
 Appropriation, Julv 2, 1836 600, 000. 00 
 
 Appropriation, June 12, 1838 1, 047, 067. 00 
 
 Appropriation, February 27, 1851 96, 999. 00 
 
 Appropriation, September 30, 1 850 189, 151. 24 
 
 Amounts advanced to individuals and afterwards retained out of aii- 
 
 propriation of T'ebruary 27, 1851 271 . 52 
 
 6, 933, 489. IS 
 Disbursements: 
 
 For improvements 81, 540, 572. 27 . 
 
 For ferries 159, 572. 12 
 
 For spoliations 264, 894. 09 
 
 For remoml and subsistence and com- 
 mutation therefor, including 82,765.84 
 expended for goods for the poorer 
 Cherokees, under the fifteenth article 
 of treaty of 1835, as follows: 
 
 Removal, subsistence, and commu- 
 tation 82, 823, 192. 93 
 
 Phvsicians, matrons, medicines, 
 
 hospitals, stores, etc 32, 003. 91 
 
 Superintendents, clerks, interpre- 
 ters, disbursing, issuing, and en- 
 rolling agents, conductors, and 
 
 contingencies 96, 999. 42 
 
 2, 952, 196. 26 
 
 For debts and claims upon the Cherokee Nation: 
 
 National debts (tenth article) 818, 062. 06 
 
 Claims of United States citizens (tenth 
 
 article ) 61, 073. 49 
 
 Cherokee committee (twelfth article). 22, 212. ^6 
 
 101, 348. 31 
 
 For the additional quantity of land ceded to the nation. 500, 000. 00 
 For amount invested as the general fund of the nation. 500, 880. 00 
 
 6,019,463.05 6,019,463.05 
 
 914, 026. 13 
 
 On the iTth of November, 1S51. before the pa3^meut of any money 
 on account of either of the above-mentioned balances of 'S5j?8.41S.85 
 and S'.:tl4.(»26.13 or the signing of any receipts by the Indians on 
 account thereof, the Cherokee national council made a formal state- 
 ment of the mitional claims arising as was contended under the treaties 
 of Deceml^er 29, 1S35, and August 16, 1846, and protested against the 
 above-mentioned settlement accounts with respect to the failure of the 
 accountants to credit therein the treaty fund with the expenses of 
 removal, saying, among other things: 
 
 "Ist. Because no allowance is made for the sums taken from the 
 treaty fund for removal to the West, although that charge depended 
 on precisely the same words in the treaty of Ls:35 as did the one year's 
 subsistence, and the Senate unanimously decided on the question sub- 
 mitted to them as arbitrators that the item of subsistence was not a 
 proper charge upon the Cherokee fund. That had been the decision 
 of the Senate about the date of the treaty when that question was 
 specially presented. It was again so considered by Mr. Poinsett, Sec- 
 retary of War, in 1838, and his decision was sanctioned by the action 
 of Congress and an appropriation was made for that purpose. But 
 the estimates being too small by half, the Indian fund was then for 
 the tirst time seized upon. 
 
23 
 
 "■2d. If it be conceded that the Cherokee fund was liaWle for these 
 charges, their amount was limited by the eighth article of the treaty to 
 a certain specified amount, and the Government had no rioht to exceed 
 that amount and charye it to the Indian fund. 
 
 " 3d. We complain that the alternative of receiving for sut)sistence 
 833,33, as provided for in the treaty, was refused to be complied with 
 and the people forced to receive rations in kind at double the cost. 
 
 "-tth. We complain that the rations issued l)v the military com- 
 mandant at Fort Gil)son to 'indigent Cherokees " was impr()})erly 
 charged to treaty fund without any legal authority. 
 
 •"otli. We claim that the United states is bound to reimburse the 
 amount paid to more than 2U0 or 300 Cherokees who had emigrated 
 to the West prior to 1835, but who were refused a participation in 
 the "old settler* fund and thrown on the emigrant party who removed 
 after that date. 
 
 •N3th. We claim that the Cherokees who remained in the States of 
 Georgia. North Carolina, and Tennessee were not entitled to any share 
 in the per capita fund, as they complied with neither of two conditions 
 of their remaining East, both of which were indispensal>le. and. also. 
 V)ecause the census of those Cherokees is. as we believe, enormously 
 exaggerated. 
 
 " Tth. ^Ve complain that the sum of ^103,000 has been charged upon 
 the treatv fund for expenses of Cherokees in Georgia three months 
 after they were all assembled and had reported themselves to General 
 Scott as ready to connnence the march. 
 
 "8th. ^^e claim interest on the balance found due us from the l.')tli 
 of April. 1851, till i)aid. Congress having no power to abrogate the 
 stipulations of a treaty. 
 
 •■l»th. We also complain that §20.000 of the fund of the emigrant 
 Cherokees were taken to pay the counsel and agents of the 'Old 
 Settlers' without any authority." 
 
 On the 22d day of September. 1851. the western Cherokees had 
 also formulated a separate protest au'ainst the proposed settlement with 
 them ("Old Settlers" case. 27 C. Cls.. 9). 
 
 Both of the foregoing protests were transmitted to and received by 
 the Conmiissioner of Indian Affairs during the month of April. 1S52. 
 
 Thereafter said balance of §1»14.02<;;.13, with interest at 5 per cent 
 from June 12, 1838, was duh" paid and distributed to and among the 
 Eastern Cherokees ^^(^r capHa and the individual Eastern Cherokees 
 executed and delivered to the United States a full and tinal discharge 
 of all claims and demands whatsoever on the United States, as recpiired 
 by the statute making the appropriations. 
 
 This discharge was in the form following: 
 
 " AA'e. the undersigned emigrant or Eastern Cherokees. do hereby 
 acknowledge to have received from John Drennan. Su]>erintendent 
 Indian Atiairs. the sums opposite our names. respccti\ely. l)eing in 
 full of all demands under the treaty of sixth of Au*iu-r. eighteen 
 hundred and forty-six, according to the principles established in the 
 ninth article thereof, and appropriated by (,'ongress ])ei- act .'loth of 
 Se]3tember. iSnO. and per act 27th of February. Is51. which i-eads as 
 follows: 
 
 "And the said Cherokee Nation shall, on the payment of said sum 
 of monev, execute and deliver to the United States a full and tinal 
 
24 
 
 di.scharg-e for all claims and demands whatsoever on the United States, 
 except for such annuities in money or specitic articles of property as 
 the United States may be bound by treaty to pay to said Cherokee 
 Nation, and except also such money and lands, if any, as the United 
 States may hold in trust for said Cherokees.-' (Finding VIII, Cono-. 
 1(»3S6.) 
 
 And thereafter the said balance of $532, 782. IS, with interest at 5 
 per cent from June 12, 1838, was appropriated by Congress, was duh^ 
 paid and distributed to and among the Western Cherokees ^^er capita., 
 and the individual Western Cherokees executed and delivered to the 
 United States a discharge in tiie following form: 
 
 ■'We, the undersigned "old settlers' or Western Cherokees. do 
 hereby acknowledge to have received from John Drennan, Supt. of 
 Indian Atfairs, the sums set opposite our names respectively, being in 
 full of all demands under the provisions of the treaty of the sixth of 
 August, eighteen hundred ancl fortv-six, according to the principles 
 established in the fourth article thereof, as per act entitled: 'An act 
 making appropriations for the current and contingent expenses of the 
 Indian Department, and for fultilling treaty stipulations with various 
 Indian tribes for the year ending June 30th. one thousand eight hun- 
 dred and tifty-one,' approved September 30th, 1850."'' 
 
 The provisions of the appropriation acts referred to in the tinding 
 are as follows, viz: 
 
 [Act of September ;-30, 1S50 (9 Stats. L., 52o, 556).] 
 
 ■' To the ■ old settlers' or ' Western Cherokees,' in full of all demands, 
 under the provisions of the treaty of sixth August, eighteen hundred 
 and forty-six, according to the principles established in the fourth 
 article thereof, live hundred and thirty-two thousand eight hundred 
 and ninet3'-six dollars and ninety cents; and that interest be allowed 
 and paid upon the above sums due respectively to the Cherokees and 
 *■ old settlers." in pursuance of the al)ove-mentioned award of the Senate, 
 under the reference contained in the said eleventh article of the treaty 
 of sixth August, eighteen hundred and forty-six: Provided, That in no 
 case shall any money hereby appropriated be paid to any agent of said 
 Indians, or to any other person or persons than the Indian or Indians 
 to whom it is due: Provided also. That the Indians who shall receive 
 the said money shall lirst respectively sign a receipt or release, 
 acknowledging the same to V)e in full of all demands under the fourth 
 article of said treaty."' 
 
 [Act of February 27, 1851 (9 Stat. L., .'70, 572).] 
 
 '"For payment to the Cherokee Nation the sum of seven hundred 
 and twenty-four thousand six hundred and three dollars and thirty- 
 seven cents, and interest on the al)Ove sum at the rate of five per 
 centum per annum, from twelfth day of June, eighteen hundred and 
 thirty-eight, until paid, shall he paid to them out of any money in 
 the Treasury not otherwise appro})riated: but no interest shall be 
 paid after the first of April, eighteen hundred and fifty-one. if any 
 portion of the mone\' is then left undrawn b}' the said Cherokees: 
 
25 
 
 Proi'ldtd, lioii'ri', i\ Tluit the sum now appropriated shall he in full 
 satisfaction and a tinal settlement of all claims and demands whatso- 
 ever of the Cherokee Nation aoainst the United States, under an}' 
 treat}' heretofore made with tlie Cherokees. And the said Cherokee 
 Nation shall, on the payment of said sum of money, execute and deliver 
 to the United States a full and tinal discharge for all claims and 
 demands whatsoever on the United States, except for such annuities 
 in money or specific articles of pi-operty as the United States may 
 l)e 1)ound by any treaty to pay to said Cherokee Nation, and exceY)t. 
 also, such moneys and lands, if any. as the United States mav hold in 
 trust for said Cherokees: And prnrnh-ij fni'f]iri\ Tiiat the monc}' 
 appropriated in this item shall be jiaid in strict conformity with the 
 treaty with said Indians of sixth August, eighteen hundred and 
 forty-six." 
 
 No portion of either of said balances was paid to the Cherokee 
 Nation or its citizens, otherwise than as above set forth, and no receipt 
 or discharge other than as above descri])ed passed to the Ignited States 
 on account of such payments. 
 
 XVII. 
 
 By act of Congress of Fel)ruary 2i;t, 1889 (^25 Stats.. (Uti). it was 
 provided — 
 
 "That the claim of that part of the Cherokee Indians known as 
 the Old Settlers or AVestern Cherokees against the United States, 
 which claim was set forth in the report of the Secretary of the Inte- 
 rior to Congress of Februar}' third, eighteen hundred and eighty-three 
 (said report being made under act of Congress of August seventh, 
 eighteen hundred and eighty-two), and contained in Executive Docu- 
 ment Numl)er Sixty of the second session of the Forty-seventh Con- 
 gress, be, and the same hereby is. referred to the Court of Claims for 
 adjudication: and jurisdiction is herein' conferred on said court to 
 try said cause and to determine what sum or sums of money, if any. 
 are justly due from the Ignited States to said Indians, arising from 
 or growing out of treaty stipulations and acts of Congress relating 
 thereto, after deducting all payments heretofore actually made to said 
 Indians by the United States, either in money or property: and after 
 deducting all oti'sets. counterclaims, and deductions of any and every 
 kind and character which should be allowed to the United States under 
 any valid provision or provisions in said treaties and laws contained, 
 or to which the United States may be otherwise entitled." 
 
 Under this act suit was instituted in tlie Court of Claims on Ix'lialf 
 of the ''Old Settlers," and resulted in a judgment against the United 
 States for S22-l:,!>7'2.(:)8. "' l)eing a l)alance of the p<-r cnjiiiii fund pro- 
 vided b}' the fourth article of the treaty between the United Stall's and 
 the Western Cherokees, dated August H, 184<i, together with interest 
 thereon from the 12th day of dune. l8o8, up to and until the enti'y of 
 this decree, being the sum of >^<')Ii;k115.58, and likewise the sum of 
 §1.17'.:».2») for :-).ol:On,V acres of land in Arkansas ceded to the United 
 States bv article -1 of the treaty of May <!. 182S. lunonnting in the 
 aggi-egate to the sum of «s:^2.:^|t^:.2." (27 Ct. of Cls.. 1. 2(i. .^t',.) 
 "On appeal to the Supreme Court of the United States this judgment, 
 
26 
 
 on April 3, 1893, was modified as per the account stated by that court 
 as follows: 
 
 The treaty fund So, 600, 000. 00 
 
 Less: 
 
 For 800,000 acres of land 8500, 000. 00 
 
 For general fund 500, 000. 00 
 
 For improvements 1, 540, 572. 27 
 
 For ferries 159. 572. 12 
 
 For spoliations 264, 894. 09 
 
 For deVits, etr . 60, 000. 0( i 
 
 For removal of 16,957 Cherokees, at §20 each 339, 140. DO 
 
 3, 3H4, 178. 48 
 
 Giving as the residuum to be divided 2, 235, 821. 52 
 
 One-third due the Western Cherokees 745, 273. 84 
 
 Less payment September 22, 1851 532, 896. 90 
 
 Leaving a Vjalance of 212, 376. 94 
 
 To which amount the court added the further sum of $-t.l79.26 for 
 the Arkansas agency, and as so modified was affirmed with interest on 
 said balance of S21l!,376.1;»4 at the rate of 5 per cent from June 12, 
 ISoS. up to and until the modification of the decree. 
 
 August 23, 1894, Congress appropriated the sum of r5800,386.31 in 
 settlement of this judgment, and of such amount the sum of §745.273.84 
 was distributed to the Western Cherokee as identified by the Dren- 
 nen roll of 1852, if living, and to the descendants of those who had 
 died. .Vccording to said roll the '"Western Cherokee'' then num- 
 bered 3,146 persons, who accordingly received the sum of §236.89^>e>?' 
 capita, excluding interest. 
 
 XVIll. 
 
 By section 14 of the act of Congress entitled "An act making appro- 
 priations for the current and contingent expenses of the Indian Depart- 
 ment, and for fulfilling treaty stipulations with various Indian tribes 
 for the year ending June 30, 1889. and for other purposes," appro\"ed 
 March 2, 1889 (25^ Stats. L., 1005), the President was authorized to 
 appoint three commissioners to negotiate with the Indian tribes own- 
 ing or claiming lands lying west of the ninety-sixth degree of longi- 
 tude in the Indian Territory for the cession to the United States of all 
 their title, claim, or interest of every kind or character in and to said 
 lands, and he did appoint David H. Jerome. Alfred M, Wilson, and 
 AVarren G. Sayre such commissioners. 
 
 B}' virtue of the authority contained in an act of the Cherokee 
 national council, approved November 16, 1891. Elias C. Boudinot, 
 Joseph A. Scales, Roach Young, William Triplett, Thomas Smith, 
 Joseph Smallwood,' and George Downing were duly appointed com- 
 missioners — » 
 
 "To meet and enter into negotiations with the above-named com- 
 mission, appointed by the President of the United States, for the ces- 
 sion of the lands of the Cherokee Nation west of the 96th degree of 
 west longitude, and for the final adjustment of all questions of interest 
 between the United States and the Cherokee Nation which are now 
 unsettled.'"' 
 
27 
 
 By said act of Congress it was made the duty of said commissioners 
 appointed l)y the President, to rej)ort all agreements resulting from 
 such negotiations to the President, to be by him reported to the Con- 
 gress at its next session, and by the act of the Cherokee council it was 
 made the duty of the commissioners on the part of the Cherokee 
 Nation to report all their proceedings in full to the national council for 
 its appro v^al and ratification. (Ex. Doe. .50, 52d Cong., 1st sess., IT.) 
 
 At the outset of the negotiations between said commissioners for 
 the purchase and sale of said lands, which were known as the " Cherokee 
 Outlet." the conmiissioners on the part of the Cherokee Nation renewed 
 their claims and contentions with respect to the ))alanees alleged to 
 be due to them under yarious treaties, and particularly their contention 
 that the so-called treaty fund had Ijcen improperly charged with the 
 expense of the removal of the Eastern Cherokees to the Indian Terri- 
 tory, and demanded as '"a condition precedent to any agreement for 
 the sale of the land" that some adjustment of such contentions should 
 be made. 
 
 On the lUth of December, 1S91, after prolonged negotiations, the 
 conimissioners aboye named entered into articles of agreement. l)y 
 Article I of which it was agreed that — 
 
 •' The Cherokee Nation, by act duly passed, shall cede and relin- 
 quish all its title, clainj. and interest of every kind and character in 
 and to that part of the Indian Territory bounded on the west by the one 
 hundredth (100" ) degree of west longitude, on the north by the State 
 of Kansas, on the east by the ninety-sixth (!Mi-) degree west longi- 
 tude, and on the south by the Creek Nation, the Territory of Okla- 
 homa, and the Cheyenne and Arapahoe Reservation created or defined 
 by Executive order, dated August H». 1S60. the tract of land embraced 
 within the above boundaries containing eight million one hundred and 
 forty-four thousand six hundred and eight^^-two and ninety-one one- 
 hundredths (8,11:1:.082.91) acres, more or less." 
 
 By article 2 that — 
 
 "For and in consideration of the above cession and relinquishment 
 the United States agrees:" 
 
 First. That it will remo\e from the limits of the Cherokee Nation 
 as trespassers certain descril)ed ]iersons. 
 
 Second. That a certain article of the antecedent treaty of duly, ISijii, 
 should l)e a])rogated and held for naught. 
 
 Third. That the judicial tri])uiuds of the Cherokee Nation should 
 have exclusive jurisdiction in eertain cases. 
 
 Fourth. That— 
 
 ''The United States shall, without delay, render to the Cherokee 
 Nation, through any agent appointed l)y authority of the national 
 council, a complete account of moneys tlue the Cherokee Nation under 
 any of the treaties ratified in the years 1.S17, IS 19, 1,S!>.5. Is2s. lS3.5-3t), 
 lsi-6, iStJt), and 186s, and any laws passed by the Congress of the 
 United States for the ])urposc of carrying said treaties, or any of 
 them, into effect; and upon such accounting, should the Cherokee 
 Nation, by its national eouncil. conelude and determine that such 
 accounting is incorrect or unjust. tlxMi the Cherokee Nation shall have 
 the rio-ht, within twelve montii>-. to enter suit against the United States 
 
28 
 
 ill the Court of Claims, with the right of appeal to the Supreme Court 
 of the United States by either party, for any alleged or declared 
 amount of money promised but withheld by the United States from 
 the Cherokee Nation, under any of said treaties or laws, which may 
 be claimed to be omitted from, or imj^roperl}" or unjustly or illegally 
 adjusted in, said accounting; and the Congress of the United States 
 shall at its next session, after such case shall be finally decided and 
 certitied to Congress according to law. appropriate a sutticient sum of 
 money to pa}" such judgment to the Cherokee xsation, should judgment 
 be rendered in her favor; or if it shall be found upon such account- 
 ing that any sum of monex' has been so withheld, the amount shall be 
 duly appropriated by Congress, payable to the Cherokee Nation, upon 
 the order of its national council, such appropriation to be made by 
 Congress, if then in session, and if not, then at the session immedi- 
 ately following such accounting.'''' 
 
 Fifth. That certain citizens of the Cherokee Nation should have the 
 right to select lands as homesteads under certain conditions; and 
 
 Sixth. In addition to all of the foregoing enumerated considerations 
 for the cession and relinquishment of title to the described lands, the 
 United States shall pay to the Cherokee Nation, at such times and in 
 such manner as the Cherokee national council shall determine, the 
 sum of $8,595,736.12 in excess of the sum of §T2S,3S9.-±0, the aggregate 
 of amounts heretofore appropriated by Congress and charged against 
 the lands of the Cherokees west of the Arkansas River. 
 
 Said articles of agreement were accepted, ratified, and confirmed on 
 the part of the Cherokee Nation by an act of the national council 
 approved January 4, 1802, and were also accepted, ratified, and con- 
 firmed on the part of the United States l:)v act of Congress of March 
 3, 1898 (27 Stat. L., 610). 
 
 Prior to the acceptance and ratification of said agreement on the 
 part of the United States, as aforesaid, the commissioners on behalf 
 of the United States, as required by the law under which thev were 
 appointed, had reported to the President the making of the articles of 
 agreement aforesaid, and by way of explanation said: 
 
 •"As to the conditions of the agreement, besides the relinquishment 
 of title upon the one part and the payment of a price in money on the 
 other, it is necessary to state that the settlement of the matters con- 
 tained in such conditions were made a condition precedent to any agree- 
 ment for the sale of the land. 
 
 "The accounting provided for in the fourth subdivision of article 2 
 of the agreement is inserted and agreed to, because the Cherokees are 
 compelled to accept the construction of the treaties made by the exec- 
 utive and administrative branches of the Government. 
 
 ''Whatever that construction is, the Indian must abide l)y [^t]- 
 There is no appeal except to Congress. Without going specifically 
 into details the Cherokees claim that upon a just accounting upon a 
 proper construction of the treaties named, a large sum of money, prin- 
 cipal and interest, will be found due them. They also desire to include 
 lands as well as money, but they were induced to eliminate 'lands' 
 from the provision. With that eliminated the provision was agreed 
 to. as set out. The Government has made the accounting, has kept 
 the books, has construed the treaties. If that has lieen done properly, 
 
2\) 
 
 no harm can come from resttitino- the aecoiiiit. It' it has not Ixmmi (h)iic 
 properly, no possil>le reason can exist why the error shouM not he 
 corrected." (Sen. Ex. Doc. .■>•>. .^iM Conu-. . 1st sess.. pp. IL. \-J.) 
 
 Gen. Thomas J. ^lorg-an. Commissioner of Indian Atiairs. in his 
 rei)ort to the Secretary of the Interior on Fel)rLiary <). Is'.t2. made the 
 fohowiny exphmation and connncnt on the fourth section of article i'. 
 to wit: 
 
 '"The fourth section of article 2 provides for an accountinu' l)et\veen 
 the Tnited States and the Cherokee Nation. The work necessar}- to 
 render this account will l)e very hea\y. and much time will t)e neces- 
 sary to properly prepare the same. On this provision of the a,Li'ree- 
 meut the conmiissioners say: 
 
 "The Government has made the accountino-. has kept the l)ooks. 
 has construed the treaties. If this has been done properly no harm 
 can come from restating- the account. If it has not been done properly 
 no possible reason can exist why tlie error should not be corrected. 
 It creates no new oblig-ations against the Government. l)ut only pro- 
 vides for legal discharge of the old ones. 
 
 "This seems to me to be a reasonable view to take of this pro^•ision. 
 and 1 do not see that any valid objection could be advanced against it. 
 
 " In your reference of the matter to this office you said: 
 
 " ' Particular attention is called to section -i of article '2 of the agree- 
 ment, with request for a full report as to what may be the state of the 
 account between the United States and the Cherokees, if practicable, 
 within a reasonable time; if not, your general conclusions." 
 
 '^ In reply to this indorsement I have the honor to sa^' that if this 
 section is construed to require the United States to state an account of 
 moneys stipulated to be paid to the Cherokee Nation, under the treaties 
 therein specitied and under the various appropriation acts to carry the 
 same into etiect, this account could ))e prepared by this office within a 
 reasonal>le time, say. about two months. If. on the other hand, it be 
 construed to recpiire a detailed statement of all the moneys received 
 and dist)ursements made by the United States of the Cherokee funds 
 under said treaties and acts of Congress, which seems to me to be the 
 intention of the parties negotiating the agreement, it would re(^uire 
 the services of an expert accountant, with assistants, probably twelve 
 months or more to review and copy the Cherokee accounts and records 
 running back nearly a contui'v. In order to prepare a statement of 
 this kind it would re([uire an appro})riation l)y Congress of the sum of 
 at least S.^.doo to pay for the services of an expert accountant, and in 
 the draft of a bill for the ratirication of the agreement herewith inclosed. 
 1 ha\e ])rovided for the approi)riatioii of that sum. or so nmch thereof 
 as may be necessary for that ])urpose.'" (Senate Ex. Doe. No. '>>>. 
 52d Cong.. 1st sess.. p. s. ) 
 
 This report of the Conunissioiiers w;is on or al»out February s. 18'.t:2. 
 referred by the Secretary of the Interior to the Assistant Attorney- 
 General for the Interior Department "for his consideration and re])ort 
 upon the legality of the contract, the sutHciency of the proposed liill, 
 and his \iews upon the question(s) of law lelating to the subject." and 
 on oi'al>out Fel)ruarv 2b. ls'.'i\ >;iid othcer reported thereon, as ai)j)ears 
 
30 
 
 in .said Senate Executive Document 56. Fifty-second Congress, tirst 
 session, sa3"ing-, among- other things: 
 
 "The report and agreement were referred to the Commissioner of 
 Indian Affairs, who, under date of February 6, 1892, reported favor- 
 ably on the agreement, and transmitted with his report the draft of a 
 l)ill to be submitted to Congress to I'atity and carry out the provisions 
 thereof. '^ * "^ The agreement contains two articles. The first 
 relates to the cession and the second to the consideration therefor. 
 
 * tS- -a 
 
 '"The considerations for said cession, as contained in article 2, are 
 set forth luider six subdivisions. * " " 
 
 ''The fourth and next provision of article 2 of the agreement 
 requires the United States to render to the Cherokee Nation a com- 
 plete accounting of all money agreed to be paid to the Indians or 
 which they may be entitled to under any treaty or act of Congress 
 since 1817. And if said accounting is satisfactory Congress shall make 
 the necessary aiDpropriation to pay the same. But if the accounting 
 is not satisfactory, then the Cherokees to have the right to institute 
 suit in the Court of Claims against the United States for the claimed 
 amount, and Congress is to make the necessary appropriation to pay 
 the judgment, if any, recovered. 
 
 "I see nothing in the stipulations herein to comment upon. It 
 seems right and promotive of good feeling that there should be a full 
 and final settlement of all claims and accounts of these Indians against 
 the United States, and I think the terms of agreement are sufficiently 
 clear to secure such accounting. 
 
 "'The Commissioner of Indian Affairs asks for a special appropria- 
 tion of 15,000 to enable him to make the accounting.'"' 
 
 All of these reports were ))efore the Congress when it accepted and 
 ratified said articles of agreement by act of March 3, 1893 (27 Stat. L., 
 641), in the following language, to wit: 
 
 ""Which said agreement is fully set forth in the message of the 
 President of the United States, communicating the same to Congress, 
 known as Executive Document No. 56 of the first session of the Fifty- 
 second Congress, the lands referred to being commonly known and 
 called the 'Cherokee Outlet;' and said agreement is hereby ratified 
 T)y the Congress of the United States, subject, however, to the 
 Constitution and laws of the United States and to acts of Congress that 
 have been or may be passed regulating trade and intercourse with the 
 Indians, and subject also to certain amendments thereto, as follows: 
 " '■* * (Amendments not important here.) " * '". "" 
 
 ''And the provisions of said agreement so amended shall be fidly 
 performed and carried out on the part of the United States; provided 
 that the money hereb}" appropriated shall be immediately available, 
 and the remaining sum of eight million three hundred thousand dol- 
 lars, or so nnich thereof as is required to carry out the provisions of 
 said agreement as amended and according to this act. to be payable in 
 five equal instalments, commencing on the fourth day of March, eigh- 
 teen hundred and ninety-five, and ending on the fourth day of March, 
 eighteen hundred and ninety-nine, said deferred payments to bear 
 interest at the rate of four per centum per annum, to be paid annuall}', 
 
81 
 
 and the amount required for the payment of interest as aforesaid is 
 here by a impropriated ;" 
 
 * » * -X- 77 * * 
 
 "The acceptance b}' the Cherokee Nation of Indians of any of the 
 money appropriated as herein set forth shall be considered and taken 
 and shall t)perate as a ratification by said Cherokee Xiition of Indians 
 of said agreement, as it is herel»y proposed to l>e amended, and as a 
 full and complete' relinquishment and extinguishment of all their title, 
 claim, and interest in and to said lands;" 
 
 "And said lands, except the portion to be allotted as provided in 
 said agreement, shall, upon the payment of the sum of two hundred 
 and ninety-five thousand seven hundred and thirty-six dollars, herein 
 appropriated, to be immediately paid, become, and l)e taken to be and 
 treated as a part of the public domain. 
 
 XIX. 
 
 By said act of March 3, 1893, ratifying said agreement for the pur- 
 chase of the "Cherokee Outlet" the Congress also provided as follows: 
 
 "The sum of live thousand dollars, or so much thereof as may be 
 necessary, the same to be immediately available, is hereby appropri- 
 ated, out of any moneys in the Treasury not otherwise appropriated, 
 to enable the Commissioner of Indian Ati'airs, under the direction 
 of the Secretar}' of the Interior, to employ such expert person or 
 persons to properly render a complete account to the Cherokee Nation 
 of moneys due said nation, as required in the fourth subdivision of 
 .article 2 of said agreement." 
 
 Thereafter flames A. Slade and fJoseph T. Bender were employed 
 as experts under the provisions of said section of said act, and they 
 made and rendered an account pursuant to the provisions of paragraph 
 4 of article 2 of the articles of agreement of Decend)er U», l,si»l. as rati- 
 fied and affirmed bv said act of ^larch 3. 1893. Said account was by the 
 Secretary of the Interior referred to the Commissioner of Indian A Hairs 
 for examination and report. ;ind the same having been examined and 
 approved by said Conmiissioner, was by the latter returned to the Sec- 
 retary of the Interior, who transmitted the same to the Cherokee Nation 
 by deli\ering a copy thereof to K. F. A\'yley, its properly constituted 
 agent for receiving the same, and said accoiuit so made, rendered, 
 and transmitted w;is accepted by the Cherokee Natiou by an act of 
 its national council approved Decendier 1, 1891, and no suit was there- 
 after l)rought by the Cherokee Nation against the United States charg- 
 ing that said account was in anywise incorrect or unjust. ])ut. on tlu> 
 contrary, the princi])al chief of the Clun-okee Nation, as I'equired by 
 the act of its national council above referred to, did notify the Sec- 
 retary of the Interior of the acceptance 1)V said nation of said account 
 as so slated l)y Messrs. Slade and Bender, and did rcMpiest ^aid Sec- 
 retary of the Interior to notify the Congress of th<' I'ldted States of 
 such acceptance, and on the Tib of January, ls:i:i. the Secretary of the 
 Interior reported the entire matter to the Congri'ss in the following 
 words: 
 
 "Sir: I have the honor to herewith transmit, in conqdiance with 
 the pi'ovisions of the third subdivision of article '2 of tlie agreement 
 
32 
 
 made December 10, 1801, with the Cherokee Indians, ratified bv the 
 act of Congress approved March 3, 1803 (liT Stats.. 613), a certified 
 copv of 'a complete account of moneys due the Cherokee Nation under 
 any of the treaties made in the years 1817, 1810, 1825,1833,1835-36, 
 1816, iSfiG. and 1868, and any laws passed b}- the Congress of the 
 United States for the purj)ose of carrying said treaties, or any of them, 
 into efi'ect,- prepared in accordance with the provisions of the said act 
 of ^Nlarch 3. 1803, together witli a certified copy of an act of Cherokee 
 national council accepting such accounting. 
 
 '*The Speaker of the House of Representatives." (House Ex. Doc. 
 Xo. 182. 53d Cong., 3d sess.) 
 
 XX. 
 
 The report and accounting made by said James A. Slade and Joseph 
 T. Bender, referred to in the foregoing finding, is in the words and 
 figures which appear in House Executive Document 182. Fifty-third 
 Congress, third session. The conclusion thereof is as follows: 
 
 " The foregoing statement covers, it is believed, every point at issue 
 which can be raised under the treaties described in the articles of 
 agreement: [a number of demands made by the Cherokee Nation were 
 disallowed], and the result of the finding is submitted in the following- 
 schedule: 
 
 " Under the treaty of 1819: 
 
 " Value of three tracts of land containing 1,700 acres, at Si. 25 jier 
 
 acre, to be added to the principal of the ' School ' fund 82, 125. 00 
 
 " ( With intere.st from Februar}' 27, 1819, to date of payment. ) 
 " Under treaty of 18;>5: 
 
 "Amount paid for removal of Eastern Cherokee.s to the Indian 
 
 Territory, improperly charged to treaty fund 1,111. 284. 70 
 
 " (With interest from^ June 12, 18;j8, to date of payment. I 
 " Under tieaty of 1866: 
 
 " Amount received Ijy receiver of public moneys at Independence, 
 
 Ivans. , never credited to Cherokee Nation 4)32. 28 
 
 '• ( With interest from January 1, 1874, to date iif i)ayment. ) 
 " Under act of Congress, ^larch 13, 189:3: 
 
 '"Interest on 815,000 of Choctaw funds applied in 186:3 to relief of 
 indigent Cherokees, said interest being improperly charged to 
 
 Cherokee national fund 20, 406. 25 
 
 '•(With interest from July 1, 189.3, to date of restoration of the 
 I>riucipal of the Cherokee funds, held in trust in lieu of invest- 
 ments. )" 
 
 Washington. D. C. April 2><. 1801. 
 
 (Signed) Jas. A. Slade. 
 
 Jos. T. Bender. 
 XXI. 
 
 In arriving at the item of SI. 111,281.70 the accountants among 
 other ta))ulations made the following statement of the account: 
 
 •' Figuring upon the basis stated in the ninth article of the treaty of 
 1816. and following the Auditor's and Comptroller's figures in the 
 accounting of December 3. 1810. and eliminating from the charges 
 made against the total fund of '¥6.617,t>67, the excess of payments over 
 the amounts appropriated by the United States for that purpose, the 
 true statement of the account is as follows: 
 
83 
 
 For iiiiproveiiients s] , 540. 572. 27 
 
 For ferries 1 59, 572, 1 2 
 
 For gpoliations 264, .s94. 09 
 
 For removal and suljsistenee, l)eing the amount aetu- 
 allv provided and expended for these purposes, and 
 
 I S.335 105 911 
 
 consisting of the following items <^ '',\,-' r,,—' aaI- 1, '■^>^-, 172. 91 
 
 '^ '- ll, 04/, Ob(. 00) ' ' 
 
 For debts and claims ujion the Cherokei' Nation 1 01 , :US. .31 
 
 For the additional (juantity of land ceded t. > the nation 500. 000. 00 
 
 For amount invested as tlie general fund of the nation 500. SSO. 00 
 
 For subsistence furnished after expiration of one year, under agree- 
 ment .that it should be charged to treatv fund 172. .'ilH. 47 
 
 4,621,750. 17 
 
 For lands and possessions 5, 000. 000. ( lO 
 
 For spoliations 2(>4, 894. 09 
 
 Balance of S600.000 applicable to removal ;->.35, 105. 91 
 
 Appropriation of June 12, 1838 1, 047. 067. 00 
 
 6, 647, 067. 00 
 From which deduct charges as above 4, 621, 756. 17 
 
 Balance to be distriliuted jier capita 2, 025, 310. 83 
 
 Deduct amount actually distriliuted as ab-eady explained 014. 026. 13 
 
 Balance due 1.111, 284. 70 
 
 The sum of S914:.t)26.13. actiuilly di.stri bated to the Ea.stern Chero- 
 kee.s in 1852, out of the above balance of 82,(>25.310.83. wa.s appropri- 
 ated as follows: 
 
 Amount found due by Treasury officials, under article 9, 1846, in tlie 
 
 report of the Auditor and Comptroller of December 3, 1849 SH27, 603. 95 
 
 Erroneous charge corrected by act of Feliruary 27, 1851 96. 999. 42 
 
 Erroneous charge account subsistence, corrected bv Congress, Septem- 
 ber 30. 1850 - - 189, 151 . 24 
 
 914.026.13 
 
 This amount of §914.02(1.13 was di.stributed solely to 14.098 Eastern 
 Cherokees in the ^^'est and 2.133 P^astern Cherokees who remained East. 
 
 Interest on the above sum of S9l-±,U26.13 at 5 per cent from June 
 12. 1838. was also appropriated by Congress and distributed per capita 
 to .said Eastern Cherokees in the same payment. The balance to be 
 distriliuted per capita according- to the above report and which was 
 not distributed, to wit, $1,111,284.70, is the sum of which the Eastern, 
 Cherokees complain they were deprived in the settlement of 1852: that 
 while they received only §5H.31 per capita, excluding- interest, they 
 should have received the further sum of Si, 111. 284. TO. or a total of 
 §2. 025. 310. 83. as appears in the tibove account rendered as the true 
 balance under article 9. making- them a total per capita of S124. "s. 
 
 The settlement made with the Old Settlers was as set forth in 
 Finding- XVlll. 
 
 XXII. 
 
 Neither the whole nor any portion of the various sums m ith interest 
 found and stated by the concluding- schedule of the so-called Slade- 
 Bendei report to be due to the Cherokee Nation under the treaties and 
 acts of Congress therein referred to have been paid to the Cherokee 
 Nation, or to any ofhcer. agent, or othei' person acting in its behalf. 
 
 With the exception of the provision contained in the act of ^larch 
 2. 1895, making appropriations for the legislative, executive, andjudi- 
 
34 
 
 cial expenses of the Government, directing the Attorney-General to 
 review and report npon the conclusion of law disclosed in the account 
 of Slade and Bender, and the passing- of the provisions of the acts of 
 Jidy 1, 1902, and March 3, 1U03, conferring jurisdiction upon the 
 United States Court of Claims to hear and determine these causes, the 
 Congress has taken no action whatever with respect to the said account 
 of Slade and Bender or the amounts found due thereunder. 
 
 Acting under said direction of March 2, 1895, above referred to, 
 the Attorney-General of the United States, on December 2, 1895, 
 addressed a communication to the Congress wherein he advised that 
 body of his disagreement with the conclusions reached by said Slade 
 and Bender. Said communication of the Attorney-General was, on 
 Decemljer 2, 1895, ))y the Congress referred to the Committee on 
 Indian Affairs and ordered to be printed, and the same appears in 
 Senate Executive Document No. 16, Fifty-fourth Congress, lirst 
 session. 
 
 XXIII. 
 
 The total acreage ceded by the Cherokee people to the United States 
 at various times, as appears from Royce's History of the Cherokees 
 (see Report of Ethnological Bureau, 1884), is as follows: 
 
 Date of treaty. 
 
 State where ceded lands are located. 
 
 October 18, 17 
 
 1721 ' South Carolina 
 
 November 24, 175,1 do 
 
 October H, 17(is Virginia 
 
 do 
 
 I West Virginia 
 
 Tennessee 
 
 iKentuckv 
 
 .do 
 
 1772 J. West Virginia 
 
 [Virginia 
 
 June 1, 1773 Gei:)rgia 
 
 fKentnckv 
 March 17, 1 
 
 Virginia 
 
 I^Tennessee 
 
 Mav 20, 1777 Soutli Carolina. 
 
 Tulv'X) 1777 I North Carolina. 
 
 •^" • -"• -^'" ITennessee 
 
 May 31, 17,S3 Georgia 
 
 jXorth Carolina. 
 17,s.5 rPennes.-iee 
 
 iKentueky 
 
 ITennessee 
 
 1 North Carolina . 
 
 October-' 17qs (Tennessee 
 
 uctoDer., iijb ^N,,rth Carolina. 
 
 October 24, 1.S04 Ge 
 
 fKentnckv 
 
 \Tenne 
 
 October 27, 1805 Tennessee 
 
 r....do 
 
 lAlabama 
 
 March 22, ISIG South Carolina 
 
 November 2 
 Julv 2, 1791 
 
 October 25, I^Oo 
 
 January 7, 1S06 . 
 
 July 8, 1S17 
 
 February 27, 1819 • ;r 'l*'?"™ 
 
 Mav 6. 1,S2.H . 
 
 Tennessee 
 
 North Carolina , 
 
 .\rkansas 
 
 Tennessee 
 
 December 29, 1835 
 
 I Alabama 
 
 INiirth Carolina . 
 Julv 19, IStlG a Kan>as 
 
 Area in 
 
 Area in 
 
 square 
 miles. 
 
 acres. 
 
 2, 623 
 
 1, 678, 720 
 
 8,635 
 
 5, .526, 400 
 
 850 
 
 544, 000 
 
 4, 500 
 
 2, ,880. 000 
 
 4,300 
 
 2, 7.52, 000 
 
 160 
 
 96, 000 
 
 250 
 
 160, 000 
 
 10, 135 
 
 6, 4S6, 400 
 
 437 
 
 279, 6.'^0 
 
 345 
 
 220, 800 
 
 1, 0.50 
 
 672. 000 
 
 22, 600 
 
 14.464.000 
 
 1,800 
 
 1,1,52.000 
 
 2, 650 
 
 1,696,000 
 
 2, 051 
 
 1,012.640 
 
 4,414 
 
 2,824,960 
 
 1,760 
 
 1,126,400 
 
 1,6.50 
 
 1, 0.56. 000 
 
 550 
 
 3.52, 000 
 
 4,914 
 
 3, 144, 960 
 
 917 
 
 ,5,86,, S80 
 
 3, 435 
 
 2, 198, 400 
 
 722 
 
 462, 080 
 
 952 
 
 609, 2.80 
 
 587 
 
 375, 6,80 
 
 135 
 
 86, 400 
 
 1,086 
 
 695. 040 
 
 7,032 
 
 4. .500, 480 
 
 li 
 
 800 
 
 5, 269 
 
 3,072,160 
 
 1, 602 
 
 1,025,280 
 
 148 
 
 94, 720 
 
 3,429 
 
 21, 194, .560 
 
 4 
 
 2, .560 
 
 583 
 
 373, 120 
 
 435 
 
 278. 400 
 
 837 
 
 .535, 6,80 
 
 1, 1.54 
 
 738, .560 
 
 2, 408 
 
 1,-541,120 
 
 1,542 
 
 986, 880 
 
 4, 720 
 
 2, 020, ,800 
 
 1,484 
 
 949, 760 
 
 7, 202 
 
 4, 609. 2.S0 
 
 2, 518 
 
 1,611,520 
 
 1, 112 
 
 711,680 
 
 1,928 
 
 1,233,920 
 
 126. 906 
 
 .SI, 220, 374 
 
 (H. R. Mis. Doc. 157, 49th Cong. 2d sess., vol. 10, p. 378. 
 
35 
 
 COXCLUSTONS OF LAW. 
 
 Upon the t'orco-oing- facts the eoui't conehides as matters of hiw: 
 
 First*. That the United iStates is indel)ted to the Cherokee Nation in 
 the followinu' amounts, viz: 
 
 (1) The sum of ^lMiJ5, with interest at 5 per cent from February 
 27, 1S1'.». to date of payment: 
 
 {•2} The sum of ^l,111.2S4.7i>, with interest at 5 per cent from -June 
 12. ISoS, to date of pa^mient: 
 
 (3) The sum of $132.28, witli interest at o per cent from J:iiuiary 1, 
 ISTJ:, to date of payment; 
 
 (•i) The sum of ^20,406.25. with interest at 5 per cent from -July 1, 
 1S1»3, to date of payment, 
 
 and is entitled to have judgment entered in its favor against the 
 United States therefor. 
 
 Second. The proceeds of so nuich of said judg-ment as pertains to 
 the items numbered 1, 3, and -i e(|uital)ly belong to the Cherokee Nation 
 as a political or social bod}', and such proceeds, less any pro]3ortion 
 thereof which the Cherokee Nation may have contracted to pay on 
 account of counsel fees and other expenses of this litigation, should ])e 
 paid or disposed of as follows, viz : 
 
 (a) The amount represented by item numbered three (3) for $432. 2n, 
 and interest, should be paid to the treasurer of the Cherokee Nation, 
 or to such other person or ofhcer either of the nation or of the United 
 States as may hereafter succeed to his duties; 
 
 (/>) The amount represented by item numbered one (J), for $2.12.5 
 and interest, should be paid to the Secretary of the Interior in trust 
 and credited on the proper l)Ooks of account to the principal of the 
 "Cherokee school fund." of which fund the United States are trustees; 
 
 {'■) The amount represented by item numbered four (i). for $2( »,l:t h3. 25 
 and interest, should be paid to the Secretary of the Interior in trust 
 and credited on the proper books of account to the "'Cherokee national 
 fund." of which fund the United States are trustees; 
 
 ('/) The amount represented l»y item numbered two (2) for 
 $1,111,284.70 and interest, less counsel fees and expenses, equitably 
 belongs to the Eastern and AVestern Cherokees who were parties 
 either to the treaty of New Echota. proclaimed May 23, 183(i, or the 
 treaty of Wasiiington. of August (>. 184t3, as individuals, whether east 
 or west of the Mississippi Ki\er. and sliould t)e paid to them or totlnnr 
 legal representatives by the Secretary of the Interior. 
 
 Third. Such counsel fees as may liave been contracted to be paid by 
 the Cherokee Nation in the manner prescri))ed by sections 21(»3 to 21<Mi. 
 both inclusive, of the Revised Statutes of the United States, and such 
 other counsel fees and expenses as may be allowed l)v this court i)ur- 
 suant to the provisions of the act of March 3, 19(>3. set forth in Find- 
 ing- of Fact No. I, should be paid to tJK^ parties entitled to receive the 
 same by the Secretary of the Ti-easury upon the making of an appro- 
 priation l)v Congress for the payment of the judgment in this cause. 
 
 F()urth. The cost and expenses incident to ascertaining and identi- 
 fying the individuals entitled to participate in the distribution of the 
 balance of the amount represented l)y item numbered two (2). and the 
 making of the distribution thereof, should be a charge u]ion >uch 
 balance for distril)ution and shouM be deducted thei'efrom. 
 
COTJE.T O^ GL^.IlVnS 
 
 No. 2yi9y. 
 THE CHEROKEE NATION v. THE UNITED STATES. 
 
 No. 23214. 
 
 THE EASTERN CHEROKEES v. THE UNITED STATES 
 AND THE CHEROKEE NATION. 
 
 No. 23212. 
 
 THE EASTERN AND EMIGRANT CHEROKEES v. THE 
 UNITED STATES. 
 
 JUDGMENT ENTERED MAY IS. 1905. 
 
 The above causes, on motion and by consent of the parties, having 
 heretofore been consolidated for purposes both of hearing and judg- 
 ment by appropriate order of this court, came on to be heard upon 
 the pleadings, orders, and proofs, and were argued by Messrs. Charles 
 Nagel, Edgar Smith, and Frederic D. McKenney. on behalf of the 
 Cherokee Nation; Messrs. Robert L. Owen and AMlliam H. Robeson, 
 on behalf of the Eastern Cherokees; Mrs. Belva A. Lockwood, on 
 behalf of certain individual claimants, styled Eastern and Emigrant 
 Cherokees, and Mr. Assistant Attorney-General Pradt. on behalf of 
 the United States; and the court being now sufficiently advised in the 
 premises, it is, this ISth day of May, A. D. 1905. adjudged, ordered, 
 and decreed that the plaintitf, the Cherokee Nation, do have and recover 
 of and from the United States as follows: 
 
 Item 1. The sum of ?2, 125. 00 
 
 With interest thereon at the rate of 5 per cent from February 27. 
 1819, to date of payment. 
 
 Item 2. The sum of 1 . Ill, 284. 70 
 
 With interest thereon at the rate of 5 per cent from June 12, 1S3S, 
 to date of payment. 
 
 Item o. The sum oi' 432. 28 
 
 With interest thereon at the rate of 5 per cent from January 1, 
 1874. to date of payment. 
 
 Item 4. The sum of .' 20. 406. 25 
 
 With interest thereon from Julyl, 1903, to date of payment. 
 
 36 
 
37 
 
 the proceeds of .said several items, however, to be paid and distriliuted 
 as follows: 
 
 The sum of '^"2,125 with interest thereon at the rate of 5 per cent 
 from February 27, ISIO, to date of pavment. less 5 per cent thereof 
 contracted by the Cherokee Nation to be paid as counsel fees, shall be 
 paid to the Secretary of the Interior in trust for the Cherokee Nation 
 and shall .be credited on the proper books of account to the principal 
 of the "Cherokee school fund" now in the possession of the United 
 States and held by them as trustees. 
 
 The sum of $432.28 with interest thereon at the rate of 5 per cent 
 from January 1. ls71, to date of payment, less 5 percent thereof con- 
 tracted by the Cherokee Nation to be paid as counsel fees, shall be 
 paid to the Cherokee Nation to be received and receipted for })v the 
 treasurer or other proper agent of said nation entitled to receive it. 
 
 The sum of •§20.4:<)6.2o, with interest thereon at the rate of 5 per 
 cent per annum from July 1. 1893. to date of pavment, less 5 percent 
 thereof contracted by the Cherokee Nation to be paid as counsel fees, 
 shall be paid to the Secretary of the Interior and credited on the proper 
 l)Ooks of account to the principal of the ''Cherokee national fund." 
 now in the possession of the United States and held by them as trustees. 
 
 The sum of 81,111.284.70, with interest thereon from June 12, 1838. 
 to date of payment, less such counsel fees as may be chargeable against 
 the same under the provisions of the contract with the Cherokee 
 Nation of January 16, 1903, and such other counsel fees and expenses' 
 as may be hereafter allowed bv this court under the provisions of the 
 act of' March 3, 1903 (32 Stat.." 996), shall be paid to the Secretary of 
 the Interior, to be by him received and held for the uses and purposes 
 following: 
 
 First. To pay the costs and expenses incident to ascertaining and 
 identifying the persons entitled to participate in the distribution thereof 
 and the costs of making such distributii^i. 
 
 Second. The remainder to be distributed directly to the E^astern 
 and Western Cherokees, who were parties either to the treaty of New 
 Echota, as proclaimed May 23. 1836, or the treaty of AVashington of 
 August 6, 1846, as individuals, whether east or west of the Mississippi 
 River, or to the legal representatives of such individuals. 
 
 So much of any of the above-mentioned items or amounts as the 
 Cherokee Nation shall have contracted to pay as counsel fees under 
 and in accordance with the provisions of sections 2103 and 2106, borh 
 inclusive, of the Revised Statutes of the United States, nd so much 
 of the amount shown in item numbered two (2) as this court hereafter 
 by appropriate order or decree shall allow for counsel fees and 
 expenses under the provisions of the act of March 3, 1^03, above referred 
 to, shall be paid by the Secretary of the Treasury to the persons enti- 
 tled to receive the same upon the making of an appropriation 1)y Con- 
 gress to pay this judgment. 
 
 The allowance of fees and expenses liy this court under said act of 
 March 3, 19<»3. is reserved until the coming in of the mandate of the 
 Supreme Court of the United States. 
 
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