148 U.S.

427
13 S.Ct. 650
37 L.Ed. 509

UNITED STATES
v.
'OLD SETTLERS.' 'OLD SETTLERS' v. UNITED STATES.
Nos. 1,031 and 1,032.
April 3, 1893.
1

Petition by Bryan, Wilson, and Hendricks, under Act. Feb. 25, 1889, (25 St. at
Large, p. 694,) for themselves, and as commissioners of the 'Old Settlers,' or
'Western Cherokee,' Indians, to recover moneys alleged to be due from the
United States. A decree was given for petitioners. Both parties appeal.
Modified and affirmed.
Statement by Mr. Chief Justice FULLER:

The original petition was filed March 8, 1889, and the substituted petition,
January 23, 1890, and thereby the petitioners, Bryan, Wilson, and Hendricks,
purporting to act for themselves, and as the commissioners of the 'Old Settlers,'
or'Western Cherokee,' Indians, represented that the latter are that part of the
Cherokee race of Indians which formerly composed the Western Cherokee
nation, and which subsequently became known as the 'Old Settlers,' and that for
the purpose of prosecuting their claims against the United States government
they had appointed Bryan, Wilson, and Hendricks as their commissioners to
represent and in their names and for their benefit to do and perform any and all
acts and things necessary and proper to be done by them in the premises. That
the suit was brought under the provisions of the act of congress approved
February 25, 1889, entitled 'An act to authorize the court of claims to hear,
determine, and render final judgment upon the claim of the Old Settlers, or
Western Cherokee Indians,' (25 St. p. 694,) and which is as follows:

'Section 1. That the claim of that part of the Cherokee Indians known as the
'Old Settlers,' or 'Western Cherokees,' against the United States, which claim
was set forth in the report of the secretary of the interior to congress of
February 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 document number sixty of the second session of the

forty-seventh congress, be, and the same hereby is, referred to the court of
claims for adjudication; and jurisdiction is hereby conferred on said court to try
said cause, and to determine what sum or sums of money, if any, are justly due
from the United 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 offsets, 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, and after fully considering
and determining whether or not the said Indians have heretofore adjusted and
settled their said claim with the United States, it being the intention of this act
to allow the said court of claims unrestricted latitude in adjusting and
determining the said claim, so that the rights, legal and equitable, both of the
United States and of said Indians, may be fully considered and determined; and
to try and determine all questions that may arise in such cause on behalf of
either party thereto, and render final judgment thereon; and the attorney general
is hereby directed to appear in behalf of the government; and, if said court shall
decide against the United States, the attorney general shall, within sixty days
from the rendition of judgment, appeal the cause to the supreme court of the
United States; and from any judgment that may be rendered the said Indians
may also appeal to said supreme court: provided, that the appeal of said Indians
shall be taken within sixty days after the rendition of said judgment, and said
court shall give such cause precedence: provided, further, that nothing in this
act shall be accepted or construed as a confession that the government of the
United States is indebted to said Indians.
4

'Sec. 2. That said action shall be commenced by a petition stating the facts on
which said Indians claim to recover, and the amount of their claim; and said
petition may be verified by the authorized agent or attorney of said Indians as to
the existence of such facts, and no other statement need be contained in said
petition or verification.'

And it was thereupon averred that under the provisions of certain treaties, made
and entered into in 1817 and 1819, the Western Cherokees, or Old Settlers,
sold, ceded, and relinquished, and there was conveyed to the United States, all
their right, title, and interest in and to all the lands belonging to them situated in
the states east of the Mississippi, and in consideration thereof the United States
sold them certain lands, situated in what is now the state of Arkansas. That, in
consideration of the subsequent sale and cession of the lands in Arkansas to the
United States, and in further consideration of the removal of the Western nation

of Cherokees from the state of Arkansas, under the provisions of the treaties of
May 6, 1828, and February 14, 1833, between the Western Cherokee nation and
the United States, the latter bargained, sold, ceded, relinquished and conveyed,
solely and exclusively to the Western Cherokee nation, subsequently known as
the 'Old Settlers,' all the lands situated in the now Indian Territory, and
described in the treaties of 1828 and 1833, and solemnly guarantied the lands to
them forever. That while in the peaceable and undisputed possession and
enjoyment of the tract of land, in the now Indian Territory, the United States,
under the color of a pretended treaty with the Eastern Cherokee nation in 1835,
made and entered into without the knowledge or consent of the Western
Cherokee nation, and to which it was not a party, and from the provisions of
which it was prevented from protecting itself by force and fraud on the part of
the United States, granted to the Eastern Cherokees the same lands that were
sold and conveyed to the Western Cherokee nation, without the consent and
against the wishes and in fraud and violation of the rights of the latter, and
removed the Eastern Cherokees, against their will and by force of arms, from
their homes east of the Mississippi, and located them upon the lands belonging
to the Western Cherokees, thus depriving them of the sole use, right to, and
interest in the lands as guarantied by treaty, and reserving to them only an
interest in proportion to their numbers, they being but one third of the whole
Cherokee people. That from that time, and continually thereafter, the Western
Cherokees protested against and resisted this invasion of their rights, until in
1846, when, acting under duress of life, liberty, and property, advantage being
also taken by the United States of the fiduciary relations existing towards the
Western Cherokees, and also of the condition of extreme impoverishment,
destitution, and want to which the Western Cherokees had been reduced by the
United States, they were forced to make and enter into an agreement with the
United States, fraudulent in character, by the terms of which the consideration
they were to receive was grossly inadequate to compensate them for their right
to and interest in the lands, of which they had been unjustly deprived by the
United States, and for the property destroyed and lost to them through the
wrongful acts of the United States, and its default to comply with its treaty
obligations It was further alleged that the land so bargained, sold, relinquished,
and conveyed to the Western Cherokees by the treaties of 1828 and 1833
contained in all 13,610,795.34 acres, and that the Western nation of Cherokees
formed but one third of the whole Cherokee race, the Eastern nation forming
the other two thirds; and that the amount of land owned by the Western nation,
which was appropriated by the United States and granted to the Eastern nation
of Cherokees, under the provisions of the treaty of 1835, was the same part of
the whole body of land as was the Eastern nation of the whole body of the
Cherokee people; and that, therefore, the United States took from the Western
Cherokees, and deprived them of the sole use, right, title, and interest in and to
two thirds of 13,610,795.34 acres, amounting to the sum of 9,073,863.56 acres,

and converted the same to the public use and benefit; the land being worth at
the time it was so taken and converted the sum of $5,671,164.72 1/2.
6

Petitioners further alleged that after the Eastern Cherokees had been forcibly
removed into the country of the Western Cherokees through the wrongful acts
of the United States, and because of its failure to protect the Western Cherokees
according to treaty stipulations, property of great value was lost to them to wit,
of the value of $30,000; and, further, that the only payments made to the
Western Cherokees since the appropriation of their lands and the destruction of
their property were the sum of $532,896.90, appropriated by act of congress of
September 30, 1850, (9 St. 556;) a one-third interest in the sum of $500,000,
given by the United States to the whole Cherokee people in common, by the
treaty of 1835; and a one-third interest in 800,000 acres of land sold in common
to the Cherokee people by the United States in the treaty of 1835, which was
made exclusively with the Eastern Cherokee nation, for the sum of $500,000, at
which valuation the Western Cherokees have been and still are held charged by
the government for their one-third share.

It was further alleged that under the provisions of the treaty of 1846 the sum of
$5,600,000, which had been provided by the treaty of 1835, and a
supplementary treaty thereto of 1836, was adopted and taken by the United
States as a basis of settlement of the claims of the Western Cherokees against
the United States, from which amount certain sums were to be first deducted,
and of the residuum thus obtained the Western Cherokees were to be paid one
third, according to their numerical proporation to the whole people, and that the
charges to be made against the said 'treaty fund' were to be limited to 'proper'
and legitimate charges, 'excluding all extravagant and improper expenditures.'
That the only legitimate charges against the treaty fund are among those
enumerated in the fifteenth article of the treaty of 1835, as provided in the
treaty of 1846, which proper charges were as follows, to wit: The amount
invested as a general national fund, $500,000; the amount expended for
800,000 acres of land $500,000; the amount expended for improvements,
$1,540,572.27; the amount expended for ferries, $159,572.12; the amount
expended for spoliations, $264,894.09; and that the $600,000 forming a part of
the treaty fund was provided by article 3 of the supplemental treaty of 1836,
for, among other things, the removal of the Eastern Cherokees. That out of this
fund there were removed in number 2,495. That of this number 295 were
chattels, to wit, slaves. That for the removal of personal property there was no
provision made by the treaty; and that, therefore, the only proper expenditure
for removal was for 2,200 Eastern Cherokees, at $20 each, according to the
terms of article 4 of the treaty of 1846, amounting to $44,000.

It was also charged that by the fourth article of the treaty of 1828 there were
3,343.41 acres reserved by the United States, which the latter agreed to dispose
of and to apply the proceeds thereof to the sole interest and benefit of the
Western Cherokees, together with the value of certain agency improvements on
the lands, and that the United States have failed and neglected to do so, and are
therefore liable for the full value of the lands and agency improvements; in all,
the sum of $9,179.16 1/4.

It was further averred that, according to the foregoing itemized statement under
article 4 of the treaty of 1846, their account with the United States should be
stated as follows:

Dr. Cr.
10
11

By "treaty fund," under 4th article,

12

treaty 1846......................... $5,600,000 00

To improvements....... $1,540,572 27

13

" ferries............... 159,572 12

14

" spoliations........... 264,894 09

15

" additional lands...... 500,000 00

16

" invested funds........ 500,000 00

17

" removal, 2,200 Indians. 44,000 00

-------------- -------------18
$3,009,038 48 $5,600,000 70
19
3,009,038 48
-------------20
Balance of "treaty fund," after proper

21

reductions.......................... $2,590,961 52

-------------22
By one third of the above balance, under
23

terms of said 4th article of treaty of 1846.. $863,653 84

24

To appropriation, Act Sept. 30, 1850.. 532,896 96

--------------25
26

"Principal sum due under 4th article of

27

treaty of 1846...................... $330,756 94

28

Petitioners further alleged that under the provisions of the eleventh article of
the treaty of 1846, and a resolution of the senate of the United States of
September 5, 1850, in pursuance thereof, they are entitled to interest at the rate
of 5 per cent. per annum upon whatever principal sum might be found due them
from the 12th of June, 1838, until paid; wherefore it was prayed:

29

'First. That they be not held to be bound by the terms of the contract made and
entered into by and between them and the defendants on the 6th day of August,
1846, and known as the 'treaty of 1846,' as fully set forth above, and that they
may be relieved of the onerous, unjust, and inequitable provisions thereof, and
that the defendants to this suit be decreed and adjudged to pay unto them the
value of the lands belonging to them under the treaties of 1828 and 1833, as
aforesaid, the sole right and title in and to and use and benefit of which were
taken from them by the said treaty of 1835 with the Eastern Cherokees, at the
valuation of similar lands by the said treaty, to wit, the sum of 62 1/2 cents per
acre,in all, the sum of $5,671,164.72 1/2; together with the additional sums
of $30,000 and $9,179.16 1/4, as set forth in paragraphs 8 and 11 of this
petition, less one third of the amounts paid for additional lands and the
permanent investment fund, and the payment, $532,896.90, as set forth in the
ninth paragraph of this petition; amounting in all to $866,230.23 1/3, showing a
balance as follows:

Dr. Cr.
30
31

By ................................value of lands.. $5,671,164 72 1/2

32

" property destroyed, etc......... 30,000. 00

33

" value of lands and improvements in Arkansas.. 9,179 16 1/4

34

To ................................one third price additional lands................................

$166,666 66 2/3

35

" one third permanent investment fund. 166,666 66 2/3

36

" payment, act of September 30, 1850. 532,896 90

---------------------- ------------------------$866,230 23 1/3 $5,710,343

37
88 3/4
866,230 23 1/3
---------------------- ------------------------38

Balance............................ $4,844,113. 65

39

'For this amount, together with interest at the rate of 5 per centum per annum
from June 12, 1838, until paid, your petitioners ask for a decree.

40

'Second. That if this honorable court should hold that they are not entitled to the
relief above prayed for, that the defendants be adjudged and decreed to pay
unto your petitioners the sums of $330,756.94, under the provisions of the
fourth article of the treaty of 1846, and $9,179.16 1/4 under the provisions of
the treaty of 1828, and the further sum of $30,000 for property destroyed, etc.;
in all the sum of $369,936.10 1/4, with interest at the rate of five per centum per
annum from June 12, 1838, until paid.

41

'Third. That this honorable court will examine this case with 'unrestricted
latitude, * * * so that the rights, legal and equitable, both of the United States
and your petitioners, may be fully considered and determined,' and enter such a
decree as equity and good conscience may dictate in the premises.'

42

Upon the hearing the facts disclosed by the evidence, chiefly documentary, and
set forth in substance in the findings and opinion of the court of claims, (27 Ct.

Cl. 1,) may be sufficiently stated as follows:

43

The Cherokee Indians held, under the treaty of November 28, 1785, (7 St. p.
18,) a considerable body of lands situated in the states of North Carolina,
Tennesee, Georgia, and Alabama.

44

On the 26th of December, 1817, a treaty between the United States and 'the
chiefs, headmen, and warriors of the Cherokee nation east of the Mississippi
river and the chiefs, headmen, and warriors of the Cherokees on the Arkansas
river, and their deputies,' was proclaimed, in the preamble to which it is recited
that in 1808, there being dissatisfaction on the part of a portion of the nation,
who wished to continue the hunter life, and to remove across the Mississippi
river on vacant lands of the United States, a representation to that effect was
made to the authorities at Washington, to which the president replied January 9,
1809, that 'those who wish to remove are permitted to send an exploring party
to reconnoiter the country on the waters of the Arkansas and White rivers, and
the higher up the better, as they will be the longer unapproached by our
settlements, which will begin at the mouths of those rivers,' and that, 'when this
party shall have found a tract of country suiting the emigrants, and not claimed
by other Indians, we will arrange with them and you for the exchange of that
for a just portion of the country they leave, and to a part of which, proportioned
to their numbers, they have a right.'

45

It was further recited that the Cherokees had explored the country on the west
side of the Mississippi, and had settled down upon United States lands on the
Arkansas and the White rivers, and that these emigrants, and those about to
remove, were ready to relinquish their proportionate rights in the lands east,
which they had left and were about to leave. Thereupon the cession of certain
lands was made; a census of those Indians remaining east and of those on the
Arkansas, and removing there, or declaring their intention of doing so, was
provided for; the annuity for 1818 was agreed to be divided in proportion to the
numbers of the two parts of the nation; and the United States bound themselves
to give as much land on the Arkansas and White rivers as they had or might
receive of the lands east, as the just proportion of that part of the nation on the
Arkansas agreeably to their numbers; also to give to all the poor warriors who
might remove, one rifle and ammunition, one blanket, and one brass kettle or
beaver trap; to furnish flat-bottomed boats, and provisions to aid in removal,
and to pay for improvements adding to the real value of the lands ceded. 7 St. p.
156.

46

About one third of the whole nation emigrated, and by the treaty of March 10,
1819, provisions were made for the payment of one third of the annuity to the

Cherokees west and two thirds to those east. 7 St. p. 195. The Indians who thus
emigrated, with accessions down to 1835, were known as the 'Old Settlers,' or
Western Cherokees.'
47

On May 28, 1828, a treaty was made with the 'chiefs and headmen of the
Cherokee nation of Indians west of the Mississippi,' by which it was agreed that
the lands in Arkansas should be relinquished to the United States, and a new
grant was made of 7,000,000 acres. with an outlet west, the whole amounting to
13,610,795.34 acres. The preamble recites: 'Whereas, it being the anxious
desire of the government of the United States to secure to the Cherokee nation
of Indians, as well as those now living within the limits of the territory of
Arkansas as those of their friends ans brothers who reside in states east of the
Mississippi, and who may wish to join their brothers of the west, a permanent
home, and which shall, under the most solemn guaranty 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 territory or state, nor be pressed upon by the extension in any
way of any of the limits of any existing territory or state.'

48

By article 2 the United States agreed to possess the Cherokees with the land
described west of the Arkansas, and by article 3 the exprenses of removal are
provided for.

49

By the fourth article the property and improvements connected with the Indian
agency were to be sold under the direction of the agent, and the proceeds of the
same to be applied in the erection, in the country to which the Cherokees were
going, of a grist and saw mill for their use.

50

Article 8 stated that 'the Cherokee nation west of the Mississippi having, by this
agreement, freed themselves from the harassing and ruinous effects consequent
upon a location amidst a white population, and secured to themselves and their
posterity, under the solemn sanction of the guaranty of the United States, as
contained in this agreement, a large extent of unembarrassed country; and that
their brothers yet remaining in the states may be induced to join them and enjoy
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 Georgia, 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 good rifle, a blanket, and kettle, and five pounds of
tobacco, (and to each member of his family one blanket;) also a just
compensation for the property he may abandon, to be assessed by persons 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 suitable ways
opened, and provisions procured for their comfort, accommodation, and
support by the way, and provisions for twelve months after their arrival at the
agency,' etc. 7 St. p. 311.
51

A supplemental treaty with the Western Cherokees was proclaimed February

14, 1833, the purpose of which was to more clearly define the boundaries of the
cession of 1828. By the fourth article certain corn mills were to be erected in
lieu of the requisition of article fourth of the prior treaty. 7 St. p. 416.

52

Efforts followed the treaty of 1828 to induce the Eastern Cherokees to remove
west, but the consent of all could not be obtained. The Eastern Cherokees
became divided into two parties, the Ridge, or treaty party, and the Ross party,
of which the latter was largely in the majority. December 29, 1835, a treaty was
made with 'the chiefs, headmen, and people of the Cherokee tribe of Indians,' at
New Echota, and proclaimed May 23, 1836, which referred in its second article
to the treaties with the Western Cherokees of 1828 and 1833 as securing the
conveyance of the 7,000,000 acres, and the outlet to the 'Cherokee nation of
Indians,' and recited that, 'whereas, it is apprehended by the Cherokees that in
the above cession there is not contained a sufficient quantity of land for the
accommodation of the whole nation on their removal west of the Mississippi,
the United States, in consideration of the sum of five hundred thousand dollars
therefor,' thereby covenanted and agreed to convey 800,000 acres more.
Articles 1, 8, 10, and 15 are as follows:

53

'Article 1. The Cherokee nation hereby cede, relinquish, and convey to the
United States all the lands owned, claimed, or possessed by them east of the
Mississppi river, and hereby release all their claims upon the United States for
spoliations of every kind, for and in consideration of the sum of five millions of
dollars, to be expended, paid, and invested in the manner stipulated and agreed
upon in the following articles. But as a question has arisen between the
commissioners and the Cherokees whether the senate, in their resolution by
which they advised 'that a sum not exceeding five millions of dollars be paid to
the Cherokee Indians for all their lands and possessions east of the Mississippi
river,' have included and made any allowance or consideration for claims for
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 for the same.'

54

'Art. 8. The United States also agree and stipulate to remove the Cherokees to

54

'Art. 8. 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 sufficient 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 medicines, shall accompany each detachment of
emigrants removed by the government. Such persons and families as in the
opinion of the emigrating agent are capable of subsisting and removing
themselves shall be permitted to do so, and they shall be allowed in full for all
claims for the same twenty dollars for each member of their family, and in lieu
of their one year's rations they shall be paid the sum of thirty-three dollars and
thirty-three cents, if they prefer it.

55

'Such Cherokees also as reside at present out of the nation, and shall remove
with them in two years west of the Mississippi, shall be entitled to allowance
for removal and subsistence as above provided.'

56

'Art. 10. The president of the United States shall invest in some safe and most
productive public stocks of the country, for the benefit of the whole Cherokee
nation who have removed or shall remove to the lands assigned by this treaty to
the Cherokee nation west of the Mississippi, the following sums as a permanent
fund for the purposes hereinafter specified, and pay over the net income of the
same annually to such person or persons as shall be authorized or appointed by
the Cherokee nation to receive the same, and their receipt shall be a full
discharge for the amount paid to them viz: The sum of two hundred thousand
dollars, in addition to the present annuities of the nation, to constitute a general
fund, the interest of which shall be applied annually be the council of the nation
to such purposes as they may deem best for the general interest of their people.
The sum of fifty thousand dollars to constitute an orphans' fund, the annual
income of which shall be expended towards the support and education of such
orphan children as are destitute of the means of subsistence. The sum of one
hundred and fifty thousand dollars, in addition to the present school fund of the
nation, shall constitute a permanent school fund, the interest of which shall be
applied annually by the council of the nation for the support of common
schools, and such a literary institution of a higher order as may be established in
the Indian country. * * * The United States also agree and stipulate to pay the
just debts and claims against the Cherokee nation held by the citizens of the
same, and also the just claims of citizens of the United States for services
rendered to the nation, and the sum of sixty thousand dollars is appropriated for
this purpose, but no claims against individual persons of the nation shall be
allowed and paid by the nation. The sum of three hundred thousand dollars is
hereby set apart to pay and liquidate the just claims of the Cherokees upon the
United States for spoliations of every kind that have not been already satisfied
under former treaties.'

57

'Art. 15. It is expressly understood and agreed between the parties to this treaty
that, after deducting the amount which shall be actually expended for the
payment for improvements, ferries, claims for spoliations, removal,
subsistence, and debts, and claims upon the Cherokee nation, and for the
additional quantity of lands and goods for the poorer class of Cherokees, and
the several sums to be invested for the general national funds, provided for in
the several articles of this treaty, the balance, whatever the same may be, shall
be equally divided between all the people belonging to the Cherokee nation east
according to the census just completed; and such Cherokees as have removed
west since June, 1833, who are entitled by the terms of their enrollment and
removal to all the benefits resulting from the final treaty between the United
States and the Cherokees East, they shall also be paid for their improvements
according to their approved value before their removal, where fraud has not
already been shown in their valuation.'

58

Article 11 provided for a commutation of the permanent annuity of $10,000 for

the sum of $214,000.

59

By article 12 a committee was designated, 'fully empowered and authorized to

transact all business on the part of the Indians which may arise in carrying into
effect the provisions of this treaty, and settling the same with the United States,'
and it was provided 'that the sum of one hundred thousand dollars shall be
expended by the commissioners in such manner as the committee deem best for
the benefit of the poorer class of Cherokees as shall remove west, or have
removed west, and are entitled to the benefits of this treaty.'

60

By article 16 it was stipulated that the Cherokees should 'remove to their new
homes within two years from the ratification of this treaty,' and by article 17,
that 'all the claims arising under or provided for in the several articles of this
treaty shall be examined and adjudicated by * * * such commissioners as shall
be appointed by the president of the United States for that purpose; and their
decisions shall be final, and on their certificate of the amount due the several
claimants they sahll be paid by the United States.' 7 St. p. 478.

61

A controversy arising as to the deduction of the cost of removal from the

$5,000,000 purchase money, a supplemental treaty was concluded and
proclaimed with the other treaty, on the same day, namely, May 23, 1836, of
which articles 2 and 3 are as follows:

62

'Art. 2. Whereas the Cherokee people have supposed that the sum of five
millions of dollars fixed by the senate in their resolution of ___ day of March,

1835, as the value of the Cherokee lands and possessions east of the
Mississippi river was not intended to include the amount which may be
required to remove them, nor the value of certain claims which many of their
people had against citizens of the United States, which suggestion has been
confirmed by the opinion expressed to the war department by some of the
senators who voted upon the question; and whereas, the president is willing
that this subject should be referred to the senate for their consideration, and, if
it was not intended by the senate that the above-mentioned sum of five millions
of dollars should include the objects herein specified, that in case such further
porvision should be made therefor as might appear to the senate to be just.
63

'Art. 3. It is therefore agreed that the sum of six hundred thousand dollars shall
be, and the same is hereby, allowed to the Cherokee people, to include the
expense of their removal, and all claims of every nature and description against
the government of the United States not herein otherwise expressly provided
for, and to be in lieu of the said reservations and pre-emptions, and of the sum
of three hundred thousand dollars for spoliations, described in the first article of
the above-mentioned treaty. This sum of six hundred thousand dollars shall be
applied and distributed agreeably to the provisions of the said treaty, and any
surplus 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
expressly 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.'

64

Article 4 provided: 'It is also understood and agreed that the one hundred
thousand dollars appropriated in article 12 for the poorer class of Cherokees,
and intended as a set-off to the pre-emption rights, shall now be transferred
from the funds of the nation, and added to the general national fund of four
hundred thousand dollars, so as to make said fund equal to five hundred
thousand dollars.' 7 St. p. 488.

65

There was accordingly ivested $714,000,-$500,000 national fund, covering the

various items before mentioned, and $214,000 commutation.

66

The $5,600,000 was thenceforth commonly styled the 'treaty fund,' though the
$600,000 was allowed with particular reference to the expense of removal.

67

The court having ruled the secretary of the interior to furnish from the official
records of his department information First, as to the number of acres of land
ceded to the Cherokee Indians under the treaty of December 29, 1835, exclusive

of the 800,000 acres; and, second, the number of acres of land ceded and
relinquished by the Cherokee Indians to the United States east of the
Mississippi river under said treaty,the secretary furnished a letter from the
acting commissioner of Indian affiairs to him, from which it appeared that the
land by actual survey (except the Cherokee reservation, which was estimated)
amounted to 13,610,795.34 acres, and that the number of acres stated in the
patent issued December 31, 1838, to the Cherokee nation for said land, the
outlying boundaries of which had been surveyed, was 13,574,135.14, which
included the 7,000,000 acres, and the outlet as such; and, further, that there
were no data in the office of Indian affairs from which an approximate estimate
could be made of the number of acres of land ceded to the United States east of
the Mississippi, but that a letter to the secretary of war, dated February 27,
1833, gave an estimate of 6,730,000 acres, which was believed too large by
nearly a million of acres.
68

The record contains a communication from commissioners appointed to settle

claims under the treaty of 1835, addressed to the secretary of war, under date
February 21, 1837, asking his opinion 'of the true and fair construction of those
provisions of the treaty which provide for claims of citizens of the United
States for services rendered the Cherokee nation,' and saying: 'We are not able
to perceive and provision whatever for the payment of claims of the above
description, except what is contained in the tenth article of the treaty, and which
limits the amount which may be thus allowed to the sum of sixty thousand
dollars.'

69

The treaty of New Echota was signed by persons purporting to represent the
Eastern Cherokees, and assent to its provisions was given by two delegates
from the Western Cherokees. John Ross and his followers were absent from the
council that adopted the treaty, and disputed its validity. The authority of the
Western delegates was also denied. The Ridge, or treaty party, numbered some
2,200, and they emigrated to the west, carrying with them 295 slaves; the cost
of removal falling on the United States. The Eastern Cherokees, numbering
14,757, disavowed the treaty, and memorialized the president and congress.
The United States authorities then, in effect, offered that if they would remove
to the Indian Territory the expense of their subsistence should not be charged
against the $5,600,000. Early in 1838 the removal of these Indians by military
force commenced, and by act of congress of June 12, 1838, (5 St. p. 241,)
$1,047,067 was appropriated to defray the expenses of their removal and
subsistence. The whole of this appropriation was expended, and, in addition, the
sum of $189,422.76. In August, 1838, on their way to the Indian Territory, the
Eastern Cherokees last mentioned resolved in council 'that the inherent
sovereignty of the Cherokee nation, together with the constitution, laws, and

usages of the same, are, and by the authority aforesaid, are hereby declared to
be, in full force and virtue, and shall continue so to be in perpetuity, subject to
such modifications as the general welfare may render expedient.' Upon their
arrival they refused to submit to the government of the Western Cherokees, but
offered to unite in a general council, which should frame a constitution and
establish a government for all. The Western Cherokees declined to make this
arrangement, and insisted that the Eastern Cherokees had entered their territory
without their permission, and that their character was that of aliens or
immigrants, subject to the constitution and laws theretofore existing in the
territory. A number of efforts followed to form a union, and at a popular
convention in January, 1840, an act of union was ratified, which had been
adopted in July, 1839. The validity of this act of union and of the ratification
was denied, but the Cherokee nation thereby created seems to have been
recognized as lawful by the United States. However, between the years 1838
and 1846, the Cherokee country was the scene of intestine disordrs of the
gravest character, destroying the rights and liberties of certain of the Cherokees,
and endangering the peace of the frontier.
70

June 18, 1846, the Western Cherokees agreed to submit their claims to a board
of commissioners to be appointed by the president and senate of the United
States. The board was appointed, and arrived at and announced its conclusions
after an elaborate presentation of the claims of the Western Cherokees.

71

On August 3, 1846, the delegates of the Western Cherokees informed the

commissioners that they were willing to agree to the suggested basis of
settlement, which they state as they understand it; and closed their letter by
saying 'that they will always consider whatever money may be paid their
people, under the provisions of the present treaty, will be received as a payment
for their country west of the Mississippi, which they now relinquish to the
whole nation. They do not acquiesce in the decision of the commissioners that
their country became the property of the whole Cherokee people by virtue of
the treaty of 1828, or any subsequent treaty, and, should the treaty now
proposed fail from any cause, it is their fixed determination to reassert their
rights to the country secured to them by the treaty of 1833, and to prosecute
their claim to same by all proper and lawful means in the power of a feeble and
oppressed people;' and they ask that the letter be communicated to the president
and senate of the United States with the other proceedings.

72

August 6, 1846, a treaty was concluded between the United States, by Edmund
Burke, William Armstrong, and Albion K. Parris, commissioners, the principal
chief and delegates duly appointed by the Eastern Cherokees, the
representatives of the treaty party, and the representatives of the Western

Cherokees. 9 St. p. 871.

73

The preamble stated the reasons for the treaty as follows:

74

'Whereas, serious difficulties have for a considerable time past existed between
the different portions of the people constituting and recognized as the Cherokee
nation of Indians, which it is desirable should be speedily settled, so that peace
and harmony may be restored among them; and whereas, certain claims exist
on the part of the Cherokee nation, and portions of the Cherokee people, against
the United States: Therefore, with a view to a final and amicable settlement of
the difficulties and claims before mentioned, it is mutually agreed by the
several parties to this convention as follows, viz.'

75

By article 1 lands now occupied by the Cherokee nation were secured to the
whole Cherokee people. By article 2 it was provided that all differences
theretofore existing between the several parties of the Cherokee nation should
be settled and adjusted; that all party distinctions should cease, except so far as
they should be necessary to carry out the treaty, and a general amnesty was
thereby declared. Article 3 related to certain reimbursements to be made by the
United States to the $5,000,000 fund, with which it was not properly
chargeable.
Articles 4 and 5 read as follows:

76

'Art. 4. And whereas, it has been decided by the board of commissioners

recently appointed by the president of the United States to examine and adjust
the claims and difficulties existing against and betwen 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 particular, that that portion of the Cherokee people known as the 'Old
Settlers,' or 'Western Cherokees,' had no exclusive title to the territory 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 whereas, the said board of commissioners
further decided that, inasmuch as the territory before mentioned became the
common property of the whole Cherokee nation by the operation of the treaty
of 1828, the Cherokees then west of the Mississippi, by the equitable operation
of the same treaty, acquired a common interest in the lands occupied by the
Cherokees east of the Mississippi river, as well as in those occupied by
themselves west of that river, which interest should have been provided for in

the treaty of 1835, but which was not, except in so far as they, as a constituent
portion of the nation, retained, in proportion 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, whatever it may be: Now, in order to ascertain the
value of that interest, it is agreed that the following principles shall be adopted,
viz.: All the investments and expenditures which are properly chargeable upon
the sums granted in the treaty of 1835, amounting in the whole to five millions
six hundred thousand dollars, (which investments and expenditures are
particularly enumerated in the fifteenth article of the treaty of 1835,) to be first
deducted from said aggregate sum, thus ascertaining the residuum or amount
which would, under such marshaling of accounts, be left for per capita
distribution among the Cherokees emigrating under the treaty of 1835,
excluding all extravagant and improper expenditures, and then allow to the Old
Settlers (or Western Cherokees) a sum equal to one third part of said residuum,
to be distributed per capita to each individual of said party of 'Old Settlers,' or
'Western Cherokees.' It is further agreed that, so far as the Western Cherokees
are concerned, in estimating the expense of removal and subsistence of an
Eastern Cherokee, to be charged to the aggregate fund of five million six
hundred thousand dollars above mentioned, the sums for removal and
subsistence stipulated in the eighth article of the treaty of 1835 as commutation
money in those cases in which the parties entitled to it removed themselves
shall be adopted. And as it affects the settlement with the Western Cherokees,
there shall be no deduction from the fund before mentioned in consideration of
any payments which may hereafter be made out of said fund; and it is hereby
further understood and agreed that the principle above defined shall embrace all
those Cherokees west of the Mississippi who emigrated prior to the treaty of
1835.
77

'In the consideration of the foregoing stipulation on the part of the United
States the 'Western Cherokees,' or 'Old Settlers,' hereby release and quitclaim to
the United States all right, title, interest, or claim they may have to a common
property in the Cherokee lands east of the Mississippi river, and to exclusive
ownership to the lands ceded to them by the treaty of 1833 west of the
Mississippi, including the outlet west, consenting and agreeing that the said
lands, together with the eight hundred thousand acres ceded to the Cherokees
by the treaty of 1835, shall be and remain the common property of the whole
Cherokee people, themselves included.

78

'Art. 5. It is mutually agreed that the per capita allowance to be given to the
'Western Cherokees,' or 'Old Settlers,' upon the principle above stated, shall be
held in trust by the government of the United States, and paid out to each

individual belonging to that party or head of family, or his legal representatives.

And it is further agreed that the per capita allowance to be paid as aforesaid
shall not be assignable, but shall be paid directly to the persons entitled to it, or
to his heirs or legal reprsentatives, by the agent of the United States authorized
to make such payments.
79

'And it is further agreed that a committee of five persons shall be appointed by

the president of the United States from the party of 'Old Settlers,' whose duty it
shall be, in conjunction with an agent of the United States, to ascertain what
persons are entitled to the per capita allowance provided for in this and the
preceding article.'

80

Article 6 appropriated $115,000 for the indemnification of the treaty party.

Article 7 related to the value of salines, which were the private property of
individual Western Cherokees, and of which they were dispossessed. Article 8
provided for the payment to the Cherokee nation of $2,000 for a printing press,
etc., destroyed; $5,000, to be equally divided 'among all those whose arms were
taken from them previous to their removal west by order of an officer of the
United States; and the further sum of $20,000 in lieu of all claims of the
Cherokee nation as a nation, prior to the treaty of 1835, except all lands
reserved by treaties heretofore made for school funds.'
Article 9 read thus:

81

'Art. 9. The United States agree to make a fair and just settlement of all moneys
due to the Cherokees, and subject to the per capita division under the treaty of
29th December, 1835, which said settlement shall exhibit all money properly
expended under said treaty, and shall embrace all sums paid for improvements,
ferries, spoliations, removal, and subsistence, and commutation therefor, debts
and claims upon the Cheorkee nation of Indians, for the additional quantity of
land ceded to said nation; and the several sums provided for in the several
articles of the treaty to be invested as the general funds of the nation; and also
all sums which may be hereafter properly allowed and paid under the
provisions of the treaty of 1835. The aggregate of which said several sums shall
be deducted from the sum of six millions six hundred and forty-seven thousand
and sixty-seven dollars, and the balance thus found to be due shall be paid over,
per capita, in equal amounts, to all individuals, heads of families, or their legal
representatives, entitled to receive the same under the treaty of 1835 and the
supplement of 1836, being all those Cherokees residing east at the date of said
treaty and the supplement thereto.' Article 10 related to Cherokees still residing
east of the Mississippi river. Articles 11 and 12 were as follows:

82

'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 treaty fund, it is hereby agreed that
that question shall be submitted to the senate of the United States for its
decision, which shall decide whether the subsistence shall be borne by the
United States or the Cherokee funds, and, if by the Cherokees, then to say
whether the subsistence shall be charged at a greater rate than thirty-three 33100 dollars per head; and also the question whether the Cherokee nation shall
be allowed interest on whatever sum may be found to be due the nation, and
from what date and at what rate per annum.

83

'Art. 12. The Western Cherokees, called 'Old Settlers,' in assenting to the
general provisions of this treaty in behalf of their people, have expressed their
fixed opinion that, in making a settlement with them upon the basis herein
established, the expenses incurred for the removal and subsistence of
Cherokees after the twenty-third day of May, 1838, should not be charged upon
the five millions of dollars allowed to the Cherokees for their lands under the
treaty of 1835, or on the fund provided by the third article of the supplement
thereto; and that no part of the spoliations, subsistence, or removal provided for
by the several articles of said treaty and the supplement thereto, should be
charged against them in their settlement for their interest in the Cherokee
country east and west of the Mississippi river. And the delegation of 'Old
Settlers,' or 'Western Cherokees,' propose that the question shall be submitted
with this treaty to the decision of the senate of the United States, of what
portion, if any, of the expenditures made for removal, subsistence, and
spoliations under the treaty of 1835 is properly and legally chargeable to the
five-million fund. And they will abide by the decision of the senate.'

84

The treaty was ratified by the senated August 8, 1846, after amendments to the
fifth article, (which is given above as amended,) and striking out the twelfth
article. The amendments to the treaty by the senate were agreed to by the
representatives of the several parties of Indians, August 13, 1846.

85

A joint resolution of congress was approved August 7, 1848, (9 St. p. 339,) as

follows:

86

'That the proper accounting officers of the treasury be, and they are hereby,
authorized and required to make a just and fair statement of the claims of the
Cherokee nation of Indians, according to the principles established by the treaty
of August, 1846, between the United States and said Indians, and that they
report the same to the next session of congress.'

87

On the 8th of August, 1850, the senate committee on Indian affairs made a
report, (Senate Report, 1st Sess. 31st Cong. No. 176,) setting forth, among
other things, that 'the statement of accounts according to the principles of the
treaty of 1846 between the United States and the Western and Eastern
Cherokees, respectively, was a labor of time and research, involving an
examination of every item of expenditure under the treaty of 1835, through a
period extending from the year 1835 to 1846. This duty was, therefore,
committed by joint resolution of congress of the 7th of August, 1848, to the
second auditor and second comptroller of the treasury; not only because they
were the proper accounting officers,' but because one of those officers had
acted as one of the commissioners of the United States in making the treaty of
1846, and was justly supposed to be well informed as to its true object and
intent.'

88

The officer thus referred to was Judge Parris, of Maine, and the record contains
the report of the second comptroller and second auditor of the treasury, giving a
statement of the account of the Cherokee nation of Indians, according to the
principles established by the treaty. The items of charges against the Cherokee
nation are given in detail and deducted from $6,647,067, the amount specified
in article 9 of the treaty, being made up of the $5,000,000, the $600,000, and
the $1,047,067.

89

The account as stated in the senate report was as follows:

90

This fund, provided by the treaty of 1835, consisted of.. $5,600,000 00

91

From which are to be deducted, under the treaty of 1846,

92

(4th article,) the sums chargeable under the 15th

93

article of the treaty of 1835, which, according to the

94

report of the accounting officers, will stand thus:

95

For improvements............. $1,540,572 27

For ferries.................. 159,572 12
For spoliations.............. 264,894 09

For removal and subsistence

96

of 18,026 Indians, at $53.33 1/3

97

per head..................... 961,386 68

98

Debts and claims upon the Cherokee nation, viz.:

National debts (10th article). $18,062 06
Claims of United States citizens

99

(10th article).... 61,073 49

Cherokee committee (12th

100 article).......... 22,212 76

-------------101
101,348 31
102 Amount allowed United States for additional
103 quantity of land ceded....... 500,000 00
Amount invested as a general fund
104 of the nation................ 500,880 00
----------------105
106 Making in the aggregate the sum of... 4,028,653 45
----------------107
108 Which, being deducted from the treaty fund of $5,600,000,
109 leaves the residuum, contemplated by the 4th article of the

110 treaty of 1846, of............ $1,571,346 55

111which amount one third was to be allowed to the Western Cherokees for their
Of
interest in the Cherokee country east, being the sum of $523,782.18, and an
appropriation of that amount was recommended. The committee also considered the
two questions referred to the senate in respect of whether the amount expended for
subsistence should be borne by the United States or by the Cherokee funds; and
whether the Cherokees should receive interest on the sums found due them from a
misapplication of their funds; and recommended the adoption of the following
resolutions, which were accordingly adopted, September 5, 1850, by the senate, as
umpire, under article 11 of the treaty of 1846, (Senate Jour. 1st Sess. 31st Cong.
601:)
112 'Resolved by the Senate of the United States, that the Cherokee nation of
Indians are entitled to the sum of $189,422.76 for subsistence, being the
difference between the amount 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 officer of
the treasury.
113 'Resolved, that it is the sense of the senate that interest at the rate of five per
cent. per annum should be allowed upon the sums found due the 'Eastern' and
'Western' Cherokees, respectively, from the 12th day of June, 1838, until paid.'
114 The committee gave their reasons for the first resolution at length. The stated
that they entertained no doubt but that by a strict construction of the treaty of
1835 the expense of a year's subsistence of the Indians after their removal west
was a proper charge upon the treaty fund, but they set forth a variety of
considerations which justified the conclusion that the expense for subsistence
was to be borne by the United States, including certain action by the secretary
of war in 1838, and the language of the act of June 12, 1838, making the
appropriation of $1,047,067. By the latter, congress provided that no part of the
$600,000 or of the $1,047,067 should be taken from the treaty fund. The
$1,047,067 was, said the committee, 'made auxiliary to the $600,000 provided
for in the third supplemental article,a fund provided for removal and other
expenditures independent of the treaty, and in full for these objects. But as
respects subsistence, it was in aid of the expense for that purpose, a discharge
pro tanto of the obligation of the government to subsist them, and not final
satisfaction as in the case of removal. The fund proved wholly inadequate for
these purposes. The entire expense of removal and subsistence amounted to
$2,952,196.26, of which the sum of $972,844.78 was expended for subsistence,
and of this last amount $172,316.47 was furnished to the Indians when in great

destitution, upon their own urgent application, after the expiration of the one
year, upon the understanding that it was to be deducted from the moneys due
them under the treaty. This leaves the net sum of $800,528.31 paid for
subsistence, and charged to the aggregate fund. Of this sum the United States
provided by the act of 12th June, 1838, for $611,105.55.' This left $189,422.76
to be made up in order to cover the entire subsistence.
115 The second section of the act of June 12, 1838, read as follows:
116 'That the further sum of one million forty-seven thousand and sixty-seven
dollars be appropriated out of any money in the treasury not otherwise
appropriated, in full for all objects specified in the third article of the
supplementary articles of the treaty of eighteen hundred and thirty-five between
the United States and the Cherokee Indians, and for the further object of aiding
in the subsistence of said Indians for one year after their removal west:
provided, that no part of the said sum of money shall be deducted from the five
millions stipulated to be paid to the said tribe of Indians by said treaty.'
117 And of this amount the committee found that only $611,105.55 had been
expended for the one year's subsistence.
118 The act of congress of September 30, 1850, making appropriations for the
current and contingent expenses of the Indian department, and for fulfilling
treaty stipulations with various Indian tribes for the year ending June 30, 1851,
(9 St. pp. 544, 556,) contained the following:
119 'For the additional amount for expenses paid for subsistence and improperly
charged to the treaty fund, according to the award of the senate of fifth day of
September, eighteen hundred and fifty, under the provisions of the eleventh
article of the treaty of sixth day of August, eighteen hundred and forty-six, one
hundred and eighty-nine thousand four hundred and twenty-two dollars and
seventy-six cents, and that interest be paid on the same at the rate of five per
cent. per annum, according to a resolution of the senate of fifth September,
eighteen hundred and fifty: provided, that said money shall be paid by the
United States and received by the Indians on condition that the same shall be in
full discharge of the amount thus improperly charged to said treaty fund:
provided, further, 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 per capita.
120 '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, five hundred
and thirty-two thousand eight hundred and ninety-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 above-mentioned award of
the senate, under the reference contained in the said eleventh article of the
treaty of in the said eleventh article of the treaty of sixth 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 first,
respectively, sign a receipt or release, acknowledging the same to be in full of
all demands under the fourth article of said treaty.'
121 The Western Cherokees were accordingly paid per capita the amount so
appropriated, principal and interest, the interest amounting to $345,583.25.
They receipted, as required by the statute, but upon the occasion of their being
so paid they gave to the superintendent of Indian affairs at Ft. Gibson a protest,
setting forth their reasons why the payment should not be received in full of all
demands. The form of the receipt thus executed was as follows:
122 'We, the undersigned 'Old Settlers,' or Western Cherokees, do hereby
acknowledge to have received from John Drennen, supt of Indian affairs, the
sum opposite our names respectively, being in full of all demands under the
provisions of the treaty of the sixth of August, eighteen hundred and forty-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 fulfilling treaty stipulations with various
Indian tribes for the year ending June 30th, one thousand eight hundred and
fifty-one.' Approved September 30th, 1850.'
123 The protest, after setting forth that the condition of the Old Settlers had been a
deplorable one, and that they ought not to be deprived summarily of the right to
present a claim for a larger amount than had been awarded to them, and
referring to the report of the senate committee on Indian affairs, and the
appropriation of the $189,422.76, and that the treaty fund should be relieved of
the whole amount expended on account of subsistence as an improper charge,
continued thus:
124 '(4) It has thus been conclusively shown that after the statement was made,
under the report of the accounting officers of December 3, 1849, and the 'Old
Settlers' were charged with the removal and subsistence of 18,026 Indians, the
senate of the United States decided that the subsistence was improperly

charged, and in a subsequent appropriation for the Eastern Cherokees, or

'emigrant party,' it had been refunded, and the sum of $189,422.76, which had
been charged to the treaty fund, has been declared to be an 'improper' charge,
and payment thereof is assumed by the United States. The 'Old Settlers,' or
Western Cherokees, are therefore entitled to one third part of the money
improperly charged for the subsistence of 18,026 Indians, at $33.33 1/3 cents
per head, which has been deducted from the amount due them in the act of
appropriation made for their benefit September 30, 1850. There were some
slight alterations made in the statement of accounts after the report of the
committee was submitted, but they changed the amount very little, and are not
worth noting.
125 '(5) The amount, then, due the 'Old Settlers,' or Western Cherokees, in
accordance with the decision of the senate, is the one-third part of the charge
made against them for the subsistence one year after removal of 18,026 Indians,
which, at $33.33 1/3 cents per head, amounts to the sume of $600,856.66, the
one-third part of which is $200,285.33, (two hundred thousand two hundred and
eighty-five dollars and thirty-three cents.) This sum, with the interest from June
12, 1838, is now due to the 'Old Settlers' Cherokees, (in addition to the amount
appropriated by the act of September 30, 1850,) in accordance with the
principle established by the senate of the United States in the resolution
adopted by that honorable body. Here, in one item alone, the 'Old Settler'
Cherokees are declared by an act of the United States government to be
entitled, in addition to the amount they are not receiving, to upwards of three
hundred and thirty thousand dollars, ($330,000.) It is known to the 'Old
Settlers' that many honorable members of congress were aware that this item
could have been added to the appropriation of September 30, 1850, and that a
favorable report thereon would have been made from the office of Indian
affairs, but that those who represented the 'Old Settlers,' with other friends,
deemed it advisable not to make the effort then to change the statement already
made,it being at the close of the session, when the least delay or interference
might have defeated the appropriation, even under the first statement.'
126 The protest then concluded with objections to the number of Indians for whose
removal charges had been made, and generally to the charges for
improvements, ferries, depredations, and for debts and claims upon the
Cherokee nation east, and other expenditures of similar character, as improperly
made.
127 The United States acquired the reservation, improvements, and property in
Arkansas referred to in article 4 of the treaty of 1828, but neither the agreement
therein set forth on the part of the United States to account for and invest the

proceeds thereof to the use of the Western Cherokees, nor the subsequent
agreement set forth in the treaty of 1833, was ever performed. The tract of land
so ceded to the United States contained 3,343.41 acres, of the value of
$4,179.26.
128 Certain papers on file in the interior department were put in evidence,
purporting to be copies of the proceedings of councils of the Western
Cherokees, held in the years 1875, 1876, 1877, 1879, 1880, 1881, 1882, and
1883, at Tahlequah, Cherokee Nation. At these councils, Bryan, Wilson, and
Hendricks were appointed commissioners to prosecute the claims of the
Western Cherokees against the United States, and Bryan was appointed
treasurer of a fund of 35 per cent. of the moneys that might be recovered against
the United States, which sum was placed at the disposal of the commissioners
for the prosecution of the claim. It does not appear that these councils were
composed of persons who were ascertained to be Western Cherokees in the
manner prescribed in the fifth article of the treaty of 1846, nor did it appear that
subsequent to the treaty the Western Cherokees had any organization or
corporate existence under the laws of the United States or of the Cherokee
nation. The proceedings of the council held on October 25, 1883, embodied a
number of resolutions, which, in the view taken of the case, it is unnecessary
should be repeated.
129 The record does not show that the Western Cherokees formally denied the
validity of the treaty of 1835 until the immigration of the Eastern Cherokees
was completed, and until after there was a disagreement as to the government
that should be adopted and control the Cherokee country. The earlier
immigrants, known as the 'Ridge Party,' and the great body of the Eastern
Cherokees, known as the 'Ross Party,' were welcome to the country as
immigrants under the existing laws. Prior to 1842 it does not appear that the
Western Cherokees notified the United States that they had repudiated the
action of Rogers and Smith, who signed the treaty of 1835 as delegates from the
Western Cherokees. After the entry of the Eastern Cherokees, the question first
at issue between them and the Western Cherokees related to the government of
the country, until, in 1842, they addressed a memorial to the president, setting
forth their title to 14,000,000 acres of land, and their right to the full and
exclusive enjoyment of the same, of which they alleged they had been deprived
by the intrusion of the Eastern Cherokees under the authority of the United
States.
130 No action on behalf of the Old Settlers appears to have been taken from the
filing of the protest September 22, 1851, until the year 1875; and in the
meetings of the Old Settlers, heretofore referred to, the validity of the several

treaties with the Cherokees was recognized.

131 On August 7, 1882, an act of congress was approved, making appropriations
for sundry civil expenses, which contained the following clause:
132 'The secretary of the interior shall investigate and report to congress what, in his
opinion, would be an equitable settlement of all matters of dispute between the
eastern band of Cherokee Indians (including all the Indians residing east of the
Mississippi river) and the Cherokee tribe or nation west; also all matters of
dispute between other bands or parts of the Cherokee nation; also all matters of
dispute between any of said bands, or parts thereof, and the United States
arising from or growing out of treaty stipulations or the laws of congress
relating thereto; and what sum or sums of money, if any, should, in his opinion,
be paid under such settlement.' 22 St. p. 328.
133 In pursuance of the authority thus given, an investigation was directed and a
report made by the secretary of the interior, February 23, 1883, contained in
senate documents, second session, forty-seventh congress, (Executive
Document, No. 60.) This is the claim referred to in the jurisdictional act, and
shows a balance of $421,653.68, in accordance with the following account:
Account with the Whole Cherokee People.
Dr. Cr.
134
135 By amount appropriated by act of July 2, 1836, for lands
136 under first article treaty of 1835..... $5,000,000 00
137 By amount appropriated under third article treaty
138 1836, by act of July 2, 1836........... 600,000 00
139 By amount erroneously charged for removal of 2,495
140 (should be 18,026) Indians, at $53.33 1/3
141 per head............................... 961,386 66
142 To amount paid for improvements. $1,540,572 27

To amount paid for ferries. 159,572 12

To amount paid for spoliation. 264,894 09
To removal and subsistence of
143 18,026 Indians at $53.33 1/3 per head. 961,386 66
To debts, etc.............. 101,348 31
To additional land purchased. 500,000 00
144 To amount invested as a permanent fund. 500,880 00
-------------145
$4,028,653 45 $6,561,386 66
146
147 Deduct................................. 4,028,653 45
-------------148
149 Balance due as of date June 12, 1838... $2,532,733 21
Dr. Cr.
Of which amount the "Old Settlers" are
150 entitled to one third.................. 844,244 40
------------151
------------152
153 "Old Settlers" account................. $844,244 40
154 To one third of unexpended balance of $600,000
155 appropriated under article 3, treaty

1836, viz. $39,300.......... $13,100 00

To one third of the cost of removing
2,495 Indians, at $53.33 per
156 head, $133,058.35........... 44,352 78
------------- -----------------157
$57,452 78 $844,244 40
158
159 Deduct................................. 57,452 78
-------------160
161 Balance due............................ $786,791 62
162 By interest on balance ($786,791.62) at 5 per
163 cent. from June 12, 1838, to September 22,
164 1851................................... 522,342 21
165 To appropriation by act September 22, 1851. $532,896 90
166 To interest allowed under same act. 354,583 25
-------------- ---------------------167
$887,480 15 $1,309,133 83
168
169 Deduct................................. 887,480 15
-------------170
171 Balance due "Old Settlers"............. $421,653 68
172 The principal difference between this and the prior account was in the
deduction of the item of $961,386.66.

173 The secretary's report was accompanied by that of the commissioner of Indian
affairs, going over the whole subject of the claims of the Eastern and of the
Western Cherokees, with accompanying reports, and, among others, two of the
senate committee on Indian affairs,one made February 9, 1881, and another
March 29, 1882; the latter being a repetition of the former. These reports
considered the claim of the Western Cherokees, and announced the conclusion
that the receipt by those Indians, under the act of September 30, 1850, 'does not
preclude them from making their clam for any other sum that may be justly due
them under a fair and proper interpretation of the treaties with them,' and that
the facts necessary to determine the justness of the claim preferred by them
'consist almost, if not wholly, of public treaties, proceedings of the senate, acts
of congress, and the records of the several departments of the government, all
of which are preserved.' The committee were of the opinion that the case
should receive a full investigation by the courts, because such an investigation
involved a judicial interpretation of the several treaties, the construction of the
several acts of congress, and the examination of the settlements made and
accounts stated with them under these treaties and acts of congress.
174 On February 13, 1884, the case of the Old Settlers was transmitted to the court
of claims by the senate committee on Indian affairs under the provisions of the
act of March 3, 1863. Findings of fact were made by the court and transmitted
to congress, February 9, 1885. These findings found the charges against the
treaty fund to be the same as fixed in the report of August 8, 1850, and the
report of 1883, except as to the number of Eastern Cherokees, whose removal
was properly chargeable to said fund, the number being fixed at 17,252, instead
of 18,026. After making the deductions, except as to removal and subsistence,
the balance of the treaty fund was found to be, as according to the report of the
secretary of the interior, $2,532,733.21; but if it should be determined that the
cost of removing that portion of the Eastern Cherokees, who were removed in
pursuance of the appropriation of $1,047,067, made by the act of 1838, should
not be charged, then this balance should be reduced only by the cost of
removing 2,495 Eastern Cherokees, who were removed prior to the act, at
$53.33 per capita, or $133,058.35. If, on the other hand, it should be
determined that the Western Cherokees were properly chargeable with those
removed subsequent to the act of June, 1838, as well as before, namely, for
17,252 Cherokees, then the amount of $920,049.16 should be deducted. The
account would then stand:
175 Treaty fund........................ $2,532,733 21
Deduct for removal of 2,495 Eastern

176 Cherokees removed prior to act of June 12, 1838. 133,058 35

177 ....................................------------178 Residuum to be divided............ $2,399,674 86
179 ....................................------------One third thereof awarded to Western
180 Cherokees........................... $799,891 62
181 Less the payment of................... 532,896 90
182 .....................................-----------183 Balance............................. $266,994 72
184 Or
185 Treaty fund........................ $2,532,733 21
Deduct for removal and subsistence of
186 17,252 Eastern Cherokees, at $53.33 per capita. 920,049 16
187 .....................................-----------188 Residuum to be divided............ $1,612,684 05
189 ....................................------------One third thereof awarded to Western
190 Cherokees........................... $537,561 35
191 Less the payment of................... 532,896 90

192 ......................................----------193 Balance............................... $4,664 45

194 No action was taken by congress on these findings of the court of claims. On
February 25, 1889, the act upon which this suit is founded was approved by the
president. 25 St. p. 694.
195 The case having come on for hearing in the court of claims, and been duly
argued and submitted, an elaborate opinion was delivered by Nott, J.,
November 30, 1891, and on January 25, 1892, findings of fact and conclusions
of law were filed by that court. On that day a second opinion by Nott, J., was
given, the case having been reopened so far as to hear counsel and admit
documentary evidence relating to the number of the Eastern Cherokees who
were removed under the treaty of 1835, and also to hear counsel with regard to
the form of the decree. 27 Ct. Cl. 1, 20, 56.
196 The account stated by the court of claims is as follows:
197 The treaty fund..................... $5,600,000 00
198 Less for 800,000 acres of land. $ 500,000 00
For investment in the general
199 land fund.............. 500,000 00
For improvements of
200 individual Cherokees. 1,540,572 27
For ferries belonging to
201 individuals............ 159,572 12
For spoliations of individual
202 property............... 264,894 09

For expenses of Cherokee

203 committee............... 22,212 76
For removal of.............. 16,957
Cherokees, at $20 each. 339,140 00
-----------204
3,326,391 24
------------205
Giving as the true residuum to be
206 divided............................ $2,273,608 76
-----------207
Due to the Western Cherokees, one third of
208 residuum........................... $757,869 58
Less payment September 22, 1851, under the
209 act of September 30, 1850.......... 532,896 90
-----------210
Leaving as the balance due the
211 Western Cherokees.................. $224,972 68 The differences between this
account and that of August 8, 1850, and February 3, 1883, are that the
investment of the permanent land fund was found to be $500,000 instead of
$500,880. The $101,348.31 for debts and claims upon the Cherokee nation,
allowed in the two previous reports, and the former findings of the court of
claims, was reduced to $22,212.76 by rejecting therefrom the items of national
debt, $18,062.06, and claims of United States citizens, $61,073.49. An
allowance for the removal of 16,957 Cherokees at $20 each, aggregating

$339,140, was made, instead of for the removal and subsistence of 18,026
Indians at $53.33 1/3 per capita, $961,386.66, as in the report of August 8,
1850, or the cost of removal and subsistence of 2,495 Indians at $53.33 per
capita, $133,058.35, as shown by the report of February 3, 1883, and by the
previous findings in this regard of the court of claims. There was added also the
value of the agency reservation appropriated by the United States under the
treaties of 1828 and 1833, being $4,179.26. The court of claims also found as a
conclusion of law that interest at the rate of 5 per cent. should be allowed on
the balance of the residuum of the treaty fund still due to the Western
Cherokees from June 12, 1838, to the entry of judgment, but not upon the
amount of $4,179.26, the value of the land last mentioned. It was also found as
a conclusion of law that the receipts given by individual Cherokees did not
preclude them from recovering their just appropriation of the per capita fund
within the intent of the act of February, 1889, referring their claims to the court.
The court also made the following rulling:
212 'The findings requested by the claimants to establish the alleged facts that the
treaty of 1846 was procured as against the Western Cherokees by duress and
fraud have been excluded from consideration by the court on the ground that it
has not jurisdiction of such a cause of action.'
Decree was entered as follows:
213 'It is ordered and adjudged that the claimants recover of the defendants the sum
of ($224,972.68) two hundred and twenty-four thousand nine hundred and
seventy-two dollars and sixty-eight cents, being a balance of the per capita fund
provided by the fourth article of the treaty between the United States and the
Western Cherokees, dated August 6, 1846, together with interest thereon from
the 12th day of June, 1838, up to and until the entry of this decree, being the
sum of $603,145.58, and likewise the sum of $4,179.26 for 3,343.41 acres of
land in Arkansas ceded to the United States by article 4 of the treaty of May 6,
1828, amounting in the aggregate to the sum of $832,297.52. And it is at the
same time ordered and adjudged that the said amount of eight hundred and
thirty-two thousand two hundred and ninety-seven dollars and fifty-two cents
so recovered by the claimants be held in trust by the government of the United
States, and be paid by the proper agent of the United States to each individual
of the claimants entitled to participate in the said per capita fund, pursuant to
and in the manner provided and required by the fifth article of the said treaty of
August 6, 1846.'
214 From this decree both parties prayed an appeal to this court.

214 From this decree both parties prayed an appeal to this court.
215 Subsequently the claimants moved that in preparing the record for
transmission, the clerk of the court of claims be instrusted to include in the
transcript 'all of the pleadings, orders, evidence, findings of fact, opinions of the
court, conclusions of law, and decree, as the same appear of record.' This
motion was overruled. Application was thereupon made to this court for a writ
of certiorari to the court of claims to send up all of the evidence used in the trial
and hearing of the case. The writ was granted, and the evidence sent up
accordingly.
216 John Paul Jones, Reese H. Voorhees, and A. H. Garland, for 'Old settlers.'
217 Sol. Gen. Aldrich and F. P. Dewees, for the United States.
218 Mr. Chief Justice FULLER, after stating the facts in the foregoing language,
delivered the opinion of the court.
219 In Harvey v. U. S., 105 U. S. 671, 691, a claim had been considered by the
court of claims, and judgment rendered for a certain amount, but less than
would have been awarded but for certain terms of the contract counted on,
which required reformation, on the ground of accident or mistake, in order fully
to express the intention of the parties; and a special act was passed again
referring the claim for adjudication, and stating: 'To that end jurisdiction is
hereby conferred on said court to proceed in the adjustment of the account
between said claimants and the United States as a court of equity jurisdiction,
and may, if according to the rules and principles of equity jurisprudence, in its
judicial discretion, reform said contract and render such judgment as justice and
right between the claimants and the said government may require.'
220 On appeal to this court from a decree rendered under this act it was contended
on the part of the United States that the appeal could not be heard, because
there was not in the record 'any finding by the court of claims of the facts in the
case, in the nature of a special verdict, with a separate statement of the
conclusions of law upon such facts.' But this court held, through Mr. Justice
Blatchford, that 'the rule in regard to findings of fact has no reference to a case
like the present, of equity jurisdiction conferred in a special case by a special
act; and in such a case, where an appeal lies and is taken under section 707 of
the Revised Statutes, this court must review the facts and the law as in other
cases in equity, appealed from other courts.'
221 In the present case the court of claims filed findings of fact and conclusions of

221 In the present case the court of claims filed findings of fact and conclusions of
law, and declined to send up the evidence. We are of opinion, however, that the
rule laid down in Harvey v. U. S. is applicable. The claim was referred for
adjudication, and jurisdiction was conferred on the court of claims to determine
the amount, if any, justly due from the United States to the Western Cherokees,
in a manner involving the statement of an account upon the investigation of
controverted items and complicated and involved facts, and it was declared that
it was 'the intention of this act to allow the said court of claims unrestricted
latitude in adjusting and determining the said claim, so that the rights, legal and
equitable, both of the United States and of the said Indians, may be fully
considered and determined.'
222 We concur in the statement of Mr. Justice Nott in the opinion of the court
below that the latitude conferred 'must be deemed the unrestricted latitude of a
court of equity in stating an account, distributing a fund, and framing a decree,
so comprehensive and fiexible as to secure to each suitor his joint or individual
rights.'
223 The remedy in equity in cases of account is generally more complete and
adequate than it is or can be at law, (1 Story, Eq. Jur. 450; Kilbourn v.
Sunderland, 130 U. S. 505, 9 Sup. Ct. Rep. 594;) and we regard the language of
the act of congress as manifestly used with the intention that equity powers
should be exercised in the disposition of the case. It was upon this view that we
directed the certiorari to issue; and in arriving at our conclusions, while we
have had the advantage of the findings of the court of claims, we have
considered and determined the case for ourselves upon an examination of the
entire evidence.
224 The prayer of the petitioners is in the alternative: First, that they be relieved
from the provisions of the treaty of 1846, on the ground of duress and fraud,
and that the United States be decreed and adjudged to pay them the value of
two thirds of 13,610,795.24 acres of land at 62 1/2 cents per acre, being the
sum of $5,671,164.72 1/2, together with the sum of $30,000 for property
destroyed, and $9,179.63 1/4 for the agency reservation and improvements in
Arkansas, less one third of the amount of $500,000 for additional lands and of
$500,000 permanently invested, and the payment in 1851 of $532,896.90,
leaving a balance of $4,844,113.65, with interest at the rate of 5 per cent. per
annum from June 12, 1838, until paid; second, that, if petitioners be not entitled
to that relief, the United States be decreed to pay them the sum of $330,756.94,
under the provisions of the fourth article of the treaty of 1846, together with the
before-mentioned sums of $9,179.16 1/4 and of $30,000, aggregating the
amount of $369,936.10 1/4 with interest as aforesaid.

225 The court of claims declined to go behind the treaty of 1846, upon the ground
that it was not within the province of a court, either of law or equity, to
determine that a treaty or an act of congress had been procured by duress or
fraud, and declare it inoperative for that reason. Fletcher v. Peck, 6 Cranch,
130; Ex parte McCardle, 7 Wall. 506, 514; People v. Draper, 15 N. Y. 545,
555, Railroad Co. v. Cooper, 33 Pa. St. 278; Wright v. Defrees, 8 Ind. 302.
226 And while it was conceded that congress might confer upon that court
extrajudicial powers, yet the court was of opinion that this could not be held to
have been done by the act authorizing the institution of this suit, since it was
therein provided that whatever judgment might be rendered, whether for the
complainants or defendants, might be appealed to the supreme court, whose
jurisdiction, as defined by the constitution, was strictly judicial, and could
neither be enlarged nor diminished by legislative authority. Gordon v. U. S., 2
Wall. 561, Taney, C. J., 117 U. S. 697, Append.; In re Sanborn, 148 U. S. ,
13 Sup. Ct. Rep. 577.
227 The contention of the petitioners is that, under the act of jurisdiction, the treaty
of 1846 is to be considered as a contract in every respect similar to one made
between private parties, and that the United States has no other or greater
privileges or advantages than a private party would have under a similar
contract, and U. S. v. Arredondo, 6 Pet. 691, 710, 711, 735, is cited. That was a
suit for land claimed under a Spanish grant, and came to this court on appeal
from the decree of the judge of the superior court for the western district of the
territory of Florida, that court having been authorized, by the act of congress of
May 23, 1828, to receive and adjudicate upon such claims, upon the petition of
the claimant, 'according to the forms, rules, and regulations, conditions,
restrictions, and limitations prescribed to the district judge, and claimants in
Missouri, by the act of the 26th May, 1824.'
228 Reviewing the two statutes, this court said: 'In conformity with the principles of
justice and rules of equity, then, the court is directed to decide all questions
arising in the case, and by a final decree to settle and determine the question of
the validity of the title, according to the law of nations, the stipulations of any
treaty and proceedings under the same, the several acts of congress in relation
thereto, and the laws and ordinances of the government from which it is alleged
to be derived, and all other questions which may properly arise between the
claimants and the United States, which decree shall, in all cases, refer to the
treaty, law, or ordinance under whih it is confirmed or decreed against. * * * By
the 'stipulations of a treaty' are to be understood its language and apparent
intention manifested in the instrument, with a reference to the contracting

parties, the subject-matter, and persons on whom it is to operate. The laws

under which we now adjudicate on the rights embraced in the treaty, and its
instructions, authorize and direct us to do it judicially, and give it judicial
meaning and interpretation as a contract on the principles of justice and the
rules of equity. * * * The only question depending is whether the claimants or
the United States are the owners of the land in question. By consenting to be
sued, and submitting the decision to judicial action, they have considered it as a
purely judicial question, which we are now bound to decide as between man
and man, on the same subject-matter and by the rules which congress
themselves have prescribed, of which the stipulations of any treaty and the
proceedings under the same form one of four distinct ones. * * * But the court
are, in this case, authorized to consider and construe the treaty, not as a contract
between two nations, the stipulations of which must be executed by an act of
congress before it can become a rule for our decision, not as the basis and only
foundation of the title of the claimants, but as a rule to which we must have a
due regard in deciding whether the claimants have made out a title to the land
in controversy,a rule by which we are neithere directed by the law nor bound
to make our decree upon, any more than upon the laws of nations, the acts of
congress, or of Spain. The acts of 1824 and 1828 authorize and require us to
decide on the pending title on all the evidence and laws before us. Congress
had disclaimed its decision as a political question for the legislative department
to decide, and enjoined it on us as one purely judicial.'
229 It will be perceived that that decision is not authority for the proposition that a
court may be clothed with power to annul a treaty on the ground of fraud or
duress in its execution, nor does any such question arise in the case before us.
There is nothing in the jurisdictional act of February 25, 1889, inconsistent with
the treaty of 1846, (or any other,) and nothing to indicate that congress
attempted by that act to authorize the courts to proceed in disregard thereof.
Unquestionably a treaty may be modified or abrogated by an act of congress,
but the power to make and unmake is essentially political, and not judicial, and
the presumption is wholly inadmissible that congress sought in this instance to
submit the good faith of its own action or the action of the government to
judicial decision, by authorizing the stipulations in question to be overthrown
upon an inquiry of the character suggested, and the act does not in the least
degree justify any such inference.
230 The claim referred to the court of claims for adjudication is the claim set forth
in the report of the secretary of the interior to congress of February 3, 1883, and
that report was made under the act of congress of August 7, 1882, which
provided that the secretary should investigate and report to congress what, in
his opinion, would be an equitable settlement of the matters in dispute between

these Indians and the United States, 'arising from or growing out of treaty
stipulations or the laws of congress relating thereto; and what sum or sums of
money, if any, should, in his opinion, be paid under such settlement.' The same
language is used in the act, and the court is 'to determine what sum or sums of
money, if any, are justly due from the United States to said Indians arising
from or growing out of treaty stipulations and acts of congress relating thereto.'
231 As a case arises under the constitution or laws of the United States whenever its
decision depends upon the correct construction of either, (Cohens v. Virginia, 6
Wheat. 264, 379; Osborn v. Bank, 9 Wheat. 738, 824,) so a case arising from or
growing out of a treaty is one involving rights given or protected by a treaty,
(Owings v. Norwood's Lessee, 5 Cranch, 344, 348.)
232 The settlement of a controversy arising or growing out of these Indian treaties
or the laws of congress relating thereto, and the determination of what sum, if
any, might be justly due under them, certainly does not include a claim which
could only be asserted by disregarding the treaties or laws, or holding them
inoperative on the ground alleged.
233 The court of claims was, indeed, to have 'unrestricted latitude in adjusting and
determining the said claim, so that the rights, legal and equitable, both of the
United States and of the said Indians, may be fully considered and determined.'
But this did not mean that either party was entitled to have or receive by virtue
of the act anything more than each was entitled to under existing stipulations,
or to bring supposed moral obligations into play for the disposal of the case.
The inquiry was not to be technically limited by rules of procedure, or
restrained by the distinctions between law and equity. Proceeding thus
untrammeled, the court was to deduct 'all offsets, 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.' And
therefore, if conflict existed between treaty provisions, or between any of them
and subsequent acts of congress, such provisions might necessarily give way
and be held invalid; but the language used did not involve a confusion of the
respective powers of the departments of the government, nor furnish a basis for
an external attack upon the validity of executive or legislative action.
234 Again, the determination of what, if anything, was justly due, was to be arrived
at upon a full consideration of 'whether or not the said Indians have heretofore
adjusted and settled their said claim with the United States.' That claim was the
claim referred to the court, the claim which was reported upon by the secretary,
the claim which arose and grew out of treaty stipulations, the claim which was

preferred in the protest of 1851, and not a claim for the loss of two thirds of
7,000,000 acres of land, and of exclusive rights in the outlet. There had been
such a claim as the latter, but it had been definitely relinquished and released by
the treaty.
235 The terms of the treaty of 1828, by which the 7,000,000 acres were guarantied
to the Cherokees, while the Western Cherokees were alone being dealt with,
expressed that the purpose was to provide a home for the whole Cherokee
people, including those east as well as those west. By article 2 of the treaty of
1835 the conveyance of land by the treaties of 1828 and 1833 is declared to
have been to the Cherokee nation of Indians, and 800,000 acres additional was
agreed to be conveyed in consideration of the sum of $500,000, that there might
be no question as to there being a sufficient quantity of land for the
accommodation of the whole nation on their removal west. That treaty was
wholly inconsistent with the attitude subsequently assumed. The patent of
December 31, 1838, ran to the Cherokee nation. There are many documents in
the record indicative of the view of the Indian office that the Western
Cherokees were only a contingently separate community from the Eastern
body, and were subject to increase by the emigration of those east; and that they
did not have, as an independent community, any ownership of the land, or
rights therein, except what belonged to them in common with the whole
Cherokee people. At the same time the Western Cherokees did set up the
opposite contention, and prosecuted it with the greatest vigor and ability before
the political departments of the government, especially during the years 1842 to
1846. Indeed, prior to 1842, they seem to have acquiesced in the treaty of 1835,
and welcomed not only the treaty party, but the great body of the Eastern
Cherokees, to participation with them under existing laws. The papers
presented in their behalf show, as stated by counsel, the most careful
preparation and noticeable ability. In a memorial bearing date June 16, 1843,
their alleged grievances were set forth in extenso, and it was insisted that by the
forcible removal of the Eastern Cherokee Indians, and their settlement among
them, the Western Cherokees had been, in effect, dispossessed of two thirds of
their land. But in June, 1846, the Western Cherokees offered to submit their
claims to a board of commissioners, to be appointed by the president and senate
of the United States, which commission it was stipulated should be invested
with full power to settle the matters in controversy according to the treaty
stipulations. The commission was appointed, and its decision was against the
claim of the Western Cherokees to the exclusive ownership of and rights in the
land in question. On the 3d of August, 1846, the delegates representing the
Western Cherokees declared that they did not acquiesce in the decision of the
commissioners on this point, and should reassert 'their exclusive right to the
country,' 'should the treaty now proposed fail from any cause;' but the treaty did

not fail, and, on the contrary, was duly executed by the parties on the 6th day of
the same month; and this was followed by the accounting under the treaty, the
act of congress of September, 1850, and the payments made and receipted for
thereunder. True, there was a protest that the receipts then given ought not to
exclude these Indians from obtaining a further amount, but that protest was
chiefly based upon the deduction of the cost of subsistence from the treaty fund,
and asserted no claim on account of the land, nor the invalidity of the treaty.
Moreover, they remained silent, so far as appers from this record, from 1846
until 1875; and when they commenced the agitation of renewed demands the
grounds assigned conceded the binding force of the treaty, but questioned the
payment under it as a final settlement of what was due.
236 Upon the facts in this record we can discover no ground for the revival of
controversy by the Western Cherokees as to their ownership of or rights in the
lands west of the Mississippi, and hold that any such claim in respect thereof as
is put forward in the petition cannot be successfully maintained from any point
of view. If any matter ever can be put at rest, that has been, and the treaty of
1846 has presented for nearly 50 years an insuperable bar to such a contention.
237 The treaty declared 'that the land now occupied by the Cherokee nation shall be
secured to the whole Cherokee people for their common use and benefit;' and
that, whereas, it had been decided by the board of commissioners appointed to
examine and adjust the claims 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 the Western
Cherokees 'had no exclusive title to the territory 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 that the West Cherokees had a claim upon the United States,
growing out of the equitable operation of the same treaty, as having a common
interest in the lands occupied by the Cherokees east of the Mississippi river, as
well as having retained a common interest 'in the general funds of the nation,'
the ascertainment of 'the value of that interest' was provided for, and the
government agreed to distribute it among the Western Cherokees.
238 In consideration of the premises, the Western Cherokees released and
quitclaimed to the United States all right, title, interest, or claim they might
have to a common property in the Cherokee lands east of the Mississippi river,
and to exclusive ownership to the lands west of the Mississippi, including the
outlet west, 'consenting and agreeing that the said lands, together with the eight
hundred thousand acres ceded to the Cherokees by the treaty of 1835, shall be
and remain the common property of the whole Cherokee people, themselves

included.'
239 In order to arrive at the amount to be distributed per capita to the Western
Cherokees, or Old Settlers, it was agreed that from the $5,600,000 the
investments and expenditures properly chargeable thereupon, and enumerated
in the fifteenth article of the treaty of 1835, excluding all extravagant and
improper expenditures, should be deducted, and that one third of the residuum
should constitute the value of their interest, and, consequently, the amount for
distribution. An accounting was had accordingly, and the amount ascertained,
appropriated, and paid over.
240 But it is argued that the object of the suit before us was to permit a relitigation
of the correctness of that amount, and a determination as to whether anything
more should have been paid at that time. And we are confronted by the
objection, strongly urged on behalf of the United States, that by the terms of the
jurisdictional act, if it be found that 'the said Indians have heretofore adjusted
and settled their said claim with the United States,' such adjustment and
settlement must be treated as conclusive.
241 We agree, as was said in the Case of Choctaw Nation, 119 U. S. 1, 29, 7 Sup.
Ct. Rep. 75, that where, in professed pursuance of treaties, statutes have
conferred valuable benefits upon the Indians, 'which the latter have accepted,
they partake of the nature of agreements; the acceptance of the benefit, coupled
with the condition, implying an assent on the part of the recipient to the
condition, unless that implication is rebutted by other and sufficient
circumstances.' And it is also true that when a party, without force or
intimidation, and with a full knowledge of all the facts in the case, accepts, on
account of an unliquidated and controverted demand, a sum less than what he
claims and believes to be due him, and agrees to accept that sum in full
satisfaction, he will not be permitted to avoid his act on the ground of duress.
U. S. v. Child, 12 Wall. 232, 244.
242 But we think, under all the circumstances disclosed here, that congress, being
convinced that a mistake had probably been made in the accounting in a matter
which the Indians from the first had called attention to, and desirous, as being
the stronger party to the controversy, that that superior justice, which looks
only to the substance of the right, should be done in the premises, voluntarily
waived any reliance upon lapse of time or laches, and, after attempts on its own
part to arrive at a satisfactory result, determined to obtain a judicial
interpretation of the treaties and laws bearing upon the subject, and to be bound
by judicial decision in respect of the conclusions flowing therefrom, and arrived
at upon equitable principles; and that the jurisdictional act passed in

effectuation of such intention left it open to the courts to readjust the amount
notwithstanding the claim might have been theretofore settled. In other words,
if the adjustment and settlement were found to have been made upon an
erroneous interpretation, which led to an obvious mistake, then congress
designed that the mistake should be corrected. We therefore proceed to
examine the account in question in accordance with what we believe to have
been the intention of congress in the passage of this act.
243 As we have said, the investments and expenditures which were properly
chargeable upon the $5,600,000 were to be deducted, and they were the
investments and expenditures particularly enumerated in the fifteenth article of
the treaty of 1835. That article provided for the deduction of the amounts
'actually expended for the payment for improvements, ferries, claims for
spoliations, removal, subsistence, and debts and claims upon the Cherokee
nation, and for an additional quantity of land, and goods for the poorer class of
Cherokees, and the several sums to be invested for the general national funds
provided for in the several articles of this treaty.' The national fund of $500,000
embraced the items last mentioned, and no dispute arises here as to that sum or
the sums of $500,000 for the additional quantity of land, $1,540,572.27 for
improvements, $159,572.12 for ferries, and $264,894.09 for spoliations.
Petitioners claim, however, that no deduction should have been made for
subsistence, and that the sum allowed for removal should be limited to 2,200
Indians at $20 per head; and they further insist upon an allowance of $30,000
for property destroyed, while they abandon their claim for $9,179.16 1/4 as the
value of the Arkansas agency land and improvements, and concede that the
sum of $4,179.26 therefor, as found by the court below, may be accepted as
correct. The court of claims disallowed the item of $30,000, and charged for the
removal of 16,957 Cherokees at $20 each, and an item for the expenses of the
Cherokee committee of $22,212.76.
244 We concur in the rejection of the claim for $30,000, which finds its basis in a
resolution of a council of the Western Cherokees of November 16, 1846, asking
the government to appropriate that sum to pay off damages and losses alleged
to have been sustained by individual Indians in being compelled to leave their
homes and go to the states for safety. No such claimants appear or are
represented here, and the claim has no relation to per capita distribution. There
is no color for its revival in this proceeding.
245 It was agreed by article 4 of the treaty of 1846 that, so far as the Western
Cherokees were concerned, in estimating the expenses of removal and
subsistence of an Eastern Cherokee to be charged to the aggregate fund, the
sums for removal and subsistence stipulated in the eighth article of the treaty of

1835 as commutation money should be adopted. That commutation was placed

in the eighth article at $20 per capita for removal and $33.33 for subsistence.
The persons composing the treaty party voluntarily emigrated to the Indian
Territory prior to 1838 to the number of 2,200, and they took with them 295
slaves of African descent. The court of claims properly considered that the
expenses to be deducted could only apply to Cherokees, and therefore, that the
slaves could not be included in making the deduction as between the Western
Cherokees and the United States; but to the 2,200 the court added the 14,757
Eastern Cherokees, who were removed in 1838, and, rejecting any deduction
for subsistence, charged the commutation price of $20 for 16,957 persons. We
are satisfied from a careful examination of the evidence that the number was
determined with all the accuracy possible and should not be disturbed; and, in
view of the decision of the senate by the adoption September 5, 1850, of the
first resolution, reported August 8, 1850, it is obvious that the expense of
subsistence should not have been and should not be deducted.
246 The fourth article of the treaty of 1846 fixed a commutation for subsistence as
well as for removal, but the eleventh article provided that whereas the Cherokee
delegates contended that the amount expended for one year's subsistence was
not properly chargeable to the treaty fund, it was thereby agreed that that
question should be submitted to the senate for its decision, which should decide
whether the expense should be borne by the United States or the Cherokee
funds; and the senate, thus made the umpire, (it having been found that the
$1,047,067 appropriated by the act of June 12, 1838, did not fully cover the
expense of subsistence,) resolved that the Indians were entitled to $189,422.76
for subsistence, 'being the difference 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.' This decision was accepted, and the
money appropriated to make good the award. The act of 1838 grew out of the
inducements offered in promotion of the removal of the entire body, and made
the appropriation in discharge of an assumed obligation to subsist the Indians, if
they would remove, notwithstanding the involuntary character of that removal.
Taking the acts of 1838 and 1850, with the decision of the senate, there can be
no question that the United States concluded to bear, and did bear, the entire
expense, so far as subsistence was concerned. The court of claims, therefore,
correctly deducted the sum of $339,140 for the removal of the whole number of
Cherokees at $20 per head, and declined to deduct any charge for subsistence.
It was really over this item that the sharpest controversy ensued, for by the
original accounting the sum of $961,383.66 had been deducted for the removal
and subsistence of 18,026 Cherokees, at $53.33 1/3 per head, which was
erroneous as to the number, and on account of the inclusion of the commutation

of $33.33 1/3 for subsistence.

247 In the account stated by the accounting officers of the treasury, December 3,
1849, the sum of $101,348.31 was deducted from the fund for debts and claims
upon the Cherokee nation, made up of these items: For national debts,
$18,062.06; for claims of United States citizens, $61,073.49; and for the
Cherokee committee, $22,212.76. This sum of $101,348.31 was also deducted
in the account stated in the report of the senate committee of August 8, 1850, in
the report of the secretary of the interior of February 23, 1883, and in the
findings of the court of claims under the reference in February, 1884.
248 The court of claims in this suit rejected the items of $18,062.06 and
$61,073.49, because, in the opinion of the court, there was no evidence to
connect these items with the fund for distribution, while it held the item of
$22,212.76, for the expenses of the Cherokee committee, as properly
chargeable under the twelfth article of the treaty of 1835, which provided for a
committee to carry the treaty into effect. We are not persuaded that this
conclusion was correct. Under the tenth article of the treaty of 1835 the United
States agreed to pay the just debts and claims against the Cherokee nation held
by citizens of the same, and also the just claims of citizens of the United States
for services rendered to the nation, and it was stated that 'the sum of sixty
thousand dollars is appropriated for this purpose.' This should be rogarded as
$60,000 of the total amount, and, in our judgment, the debts and claims upon
the Cherokee nation mentioned in article 15, and to be deducted under article 4
of the treaty of 1846, should be confined, so far as the Western Cherokees are
concerned, to $60,000, and that amount is justly chargeable against the fund;
but we are not satisfied that the expenses of the committee authorized by the
twelfth article of the treaty of 1835, which was a committee to recommend
persons for the privilege of pre-emption rights and to select missionaries, as
well, indeed, as to transact all business which might arise in carrying into effect
the provisions of the treaty, ought to be charged in addition.
249 In view of these considerations, we find and state the account as follows:
250 The treaty fund..................... $5,600,000 00
251 Less
For 800,000 acres of land. $ 500,000 00
For general fund........ 500,000 00

For improvements...... 1,540,572 27

For ferries............. 159,572 12
For spoliations......... 264,894 09
For debts, etc........... 60,000 00
For removal of 16,957
Cherokees at $20 each... 339,140 00
-----------252
$3,364,178 48 3,364,178 48
253
------------254
255 Giving as the residuum to be divided.. $2,235,821 52
------------256
------------257
258 One third due to the Western Cherokees.. $745,273 84
259 Less payment September 22, 1851...... 532,896 90
-----------260
261 Leaving a balance of................ $212,376 94
262 And the recovery should also include the sum of $4,179.26 for the Arkansas
agency.
263 By the second resolution adopted by the senate, as umpire, September 5, 1850,
it was decided that interest should be allowed, at the rate of 5 per centum per
annum, upon the sum found due the Western Cherokees, from June 12, 1838,
until paid. As before stated, our conclusion is that the sum then found due was
less than should have been found by the amount of $212,376.94.

264 Under section 1091 of the Revised Statutes no interest can 'be allowed on any
claim up to the time of the rendition of judgment thereon by the court of claims
unless upon a contract expressly stipulating for the payment of interest;' and in
Tillson v. U. S., 100 U. S. 43, it was held that a recovery of interest was not
authorized under a private act referring to the court of claims a claim founded
upon a contract with the United States, which did not expressly authorize such
recovery. But in this case the demand of interest formed a subject of difference
while the negotiations were being carried on, the determination of which was
provided for in the treaty itself. That determination was arrived at as prescribed,
was accepted as valid and binding by the United States, and was carried into
effect by the payment of $532,896.90, found due, and of $354,583.25 for
interest. 9 St. p. 556.
265 In view of the terms of the jurisdictional act and the conclusion reached in
reference to the amount due, it appears to us that the decision of the senate in
respect of interest is controlling, and that, therefore, interest must be allowed
from June 12, 1838, upon the balance we have heretofore indicated, but not
upon the item of $4,179.26, which stands upon different ground.
266 The question remains as to the character in which petitioners come into court,
and to whom the amount awarded should be distributed.
267 The 'Old Settlers,' or Western Cherokees, are not a governmental body politic,
nor have they a corporate existence, nor any capacity to act collectively. The
money belongs to them as individual members of an Indian community,
recognized as such by the treaty of 1846, and treated as distinct and separate
from the Cherokee nation, so far as necessary to enable the government to
accord them their treaty rights. They are described in the fourth article of the
treaty as 'all those Cherokees west of the Mississippi, who emigrated prior to
the treaty of 1835;' and they may be held to include those now living who so
emigrated, together with the descendants of those who have died, the
succession to be determined by the Cherokee law. The petition does not set
forth their names, nor the extent of the rights and interests claimed,
respectively, but purports to be brought by three persons, 'for themselves and as
commissioners' of the Western Cherokees; and they alleged that the claimants
'are the remaining part of those Cherokee Indians who formed and composed
the Western Cherokee nation; and that they have maintained their separate
organization so far as to adjust and settle their claims against the United States.'
But the evidence is quite inadequate to justify the court in treating the
immediate petitioners as appointed by all the beneficiaries as their agents to
receive and disburse the amount awarded.

268 The lands west of the Mississippi were held as communal property, not vested
in the Cherokees as individuals, as tenants in common or joint tenants; but by
the treaties of 1835 and 1846 the communal character of the property was
terminated as to both Eastern and Western Cherokees, and the fund, taking the
place of the realty, was invested in the various ways we have mentioned,
leaving the remainder to be distributed per capita. The Western Cherokees were
paid, under the treaty of 1846, simply as citizens of the Cherokee nation,
entitled to receive the money, as having emigrated prior to 1835, or the
descendants of such.
269 The court of claims at first decided that the decree should be in the form
usually used where a suit is prosecuted by individuals for themselves and
others; that is to say, that the general liability should be established, and then
provision made for the individual Old Settlers, or Western Cherokees, to come
in and establish their right to share in the fund.
270 It was said in Smith v. Swormstedt, 16 How. 288, 302, 303, that 'the rule is well
established that where the parties interested are numerous, and the suit is for an
object common to them all, some of the body may maintain a bill on behalf of
themselves and all the others;' but that 'in all cases where exceptions to the
general rule are allowed, and a few are permitted to sue or defend on behalf of
the many, by representation, care must be taken that persons are brought on the
record fairly representing the interest or right involved, so that it may be fully
and honestly tried.' And, notwithstanding the suggestion that these so-called
'commissioners' do not bring themselves as strictly within the rule upon this
subject as they should, yet we think that they do so far represent the interests or
rights involved that the case may be allowed to proceed to judgment.
271 The court of claims, after delivering its opinion, suspended the entry of the
decree which it had indicated its intention to render, and, after argument had
upon the question, modified that opinion, and held that the fifth article of the
treaty of 1846 applied as to the distribution, and entered a decree accordingly.
The court was quite right in holding that the amount found due should not be
decreed to be received and disbursed by the three petitioners as a commission,
and that it was not necessary that the decree should require the beneficiaries to
come into that tribunal, and prove up against the fund. The fifth article of the
treaty provided that the per capita allowance to be given to the Western
Cherokees should be held in trust by the United States, and 'paid out to each
individual belonging to that party, or head of family, or his legal
representatives,' and 'be paid directly to the persons entitled to it, or to his heirs
or legal representatives;' and that the persons entitled to it should be ascertained
by a committee of five, appointed by the president of the United States, from

the Western Cherokees, and an agent of the United States. The court was of
opinion that the rule thus prescribed should be followed as to this balance of
the amount intended for per capita distribution, and it was in accordance with
this view that the decree was finally entered.
272 We approve of this disposition of the matter as just and appropriate under the
circumstances, and a competent exercise of judicial power. The court decides
and pronounces the decree to be carried into effect as between the persons and
parties who have brought the case before it for decision, and none the less so
because it leaves the mere matter of distribution to be conducted in the manner
and through the agencies pointed out in the treaty.
273 The result is that we concur substantially in the conclusions reached by the
court of claims, whose laborious and painstaking examination of the case has
been of great assistance in the investigation we have bestowed upon it; and in
respect of the difference in the amount found we direct the decree to be
modified so as to provide for the recovery of the defendants of the sum of
$212,376.94 instead of the sum of $224,972.68, in full of the per capita fund
provided by the fourth article of the treaty between the United States and the
Western Cherokees, dated August 6, 1846, together with interest thereon at the
rate of 5 per centum per annum from the 12th day of June, 1838, up to and until
the modification of the decree, in addition to the sum of $4,179.26; and, as so
modified, to be affirmed.
274 Mr. Justice JACKSON did not sit in this case or take part in its decision.