Brief by Belva Lockwood

Supreme Gourt of the Mnited Stats

, OCTOBER TERM, 1905



THE UNITED STATES, aisandne
«7S Og. No. 346.
THE CHEROKEE NATION

‘Tur EASTERN CHEROKEES, Appellants)
US. No. 347.
THE CHEROKEE NaTIon | a
THE CHEROKEE Nation, Appellant

v8. nee | No 348,
THE UNITED STATES

THE EASTERN AND | ee
EMIGRANT. CHEROKEES, _ Appellees :

he No. 349.
THE UNITED STATES |



IN APPEAL FROM THE COURT OF CLAIMS

ee oe BRIEF
For the Eastern and Emigeant Cherokees



BELVA A. LOCKWOOD, Counsel,
619 F Street,N. W., ==—~—SWashington, D.C.












INDEX.

Status of Appeal

The Bone of Contention

The Award

The Cherokee roneent

Suit No. 10,386, Congressional |
The Eastern suit Emigrant Cherokees
Belong to the Cherokee People |
They Further Agree

The Difference in the Findings
Conclusions of Law .

The Judgment entered May 18, 1905
The United States Objects ©

The Eastern Cherokees Objects

The Eastern and Emigrant Cherokees
The Oklahoma Strip or Outlet West
Publie No. 173 Sa ey

Why in this Appeal?

The Cherokee Nation Objects

The Cherokee Nation

Opinion of the Court, Ninth cise

Take issue with the Court

The liability of the government to’ pay the avard

Report of the Secretary of the Interior

Statement of the Treasury Department

Liability for the Interest

The Attorney General

Parties Agree

Cannot be relieved from a sMigations

Who are the Eastern and Emigrant Cherokees

The number

To whom item No. 2 elon

Do not wish money paid to Cherokee Nation

Eastern and Emigrant Cherokees Poor

The people of the Western Nation

Have abolished the Nation

The parties claiming

The probable number of the Rasterd aid eiais
grant Cherokees together . : :

Request to the Court :








Supreme Court of the United States.
OCTOBER TERM, 1905. -

Lincaiianeii

Tue Unirep States, Appellant Lala
Vs. i Nou. 346,
THE CHEROKEE NATION | |

Tae EASTERN CHEROKEES, Appellants
Us. No. 347.
THE CHEROKEE NATION a

THE CHEROKEE NATION, Appellant )
U8. No. 348.

THE UNITED STATES

THE EASTERN AND

EMIGRANT CHEROKEES Appellees
3 eee No. 349.
THE UNITED STATES - J



IN APPEAL FROM THE COURT OF CLAIMS

Brief for the

Eastern and Emigrant Cherokees

1. Status of Appeal.

This appeal is from a final decree in the Court of Claims
in the consolidated cases Nos. 23199—23212, and 23214 passed
upon by the Court of Claims as of date May 18, 1905; the
first named having been brought under the act of July 1, 1902,
and Feb. 20, 1903, and the last two under the act of March 3,








2

1903, No. 23212, Mar. 10, 1903, and No, 23214, Mar. 14, 1903,
as found on page 16 and 17 of the Indian Appropriation Bill,
2nd sess. 57th Congress, Public 144, “An act to provide for
the allotment of lands of the Cherokee Nation, for the dis-
position of town sites, and for other purposes.” This act was
intended to supercede and correct the Act of July 1, 1902,
of the 1st sess. 57th Congress, Public 241, under which suit
No. 23199 was brought, and in which claimant in Nos. 23212
and 23214 appear as intervenors; the latter of date Dec. 22,

1903.
2. The Bone of Contention

Is the second item of the award and accounting made by said
James A. Slade and Joseph T. Bender, referred to in the find-
ings and in the words and figures which appear in House
Executive Document 182, Fifty-third Congress, third session.
The conclusion thereof is as follows:

“The statement covers, it is believed, every point at issue
which cen he raised under the treaties described in the articles
of agreement; [a number of demands made by the Cherokee
Nation were disallowed], and the result of the finding is sub-
mitted in the following schedule: |
“Under the treaty of 1819:

“Value of three tracts of land containing 1,700

acres, at $1.25 per acre, to be added to the
principal of the ‘School’ fund .............. $2,125.00

_ “(With interest from February 27, 1819, to

date of payment.)
“Under treaty of 1835:
“Amount paid for removal of Eastern Chero-
kees to the Indian Territory, improperly
charged to treaty fund ................. 1,111,284.70
“(With interest from June 12, 1838, to date
of payment. )
“Under treaty of 1866: :
“Amount received by receiver of public
moneys at Independence, Kans., never credit-
odiwe COnepeicee: NanION ek tes 432.28








3

“(With interest from January I, 1874, to
date of payment.)
“Under act of Congress, March 3, 1893:
“Interest on $15,000 of Choctaw funds ap-
plied in 1863 to relief of indigent Cherokees,
said interest being improperly charged to
Cherokee national fund ........-++++e++: 20,406.25
“(With interest from July 1, 1893, to date of
restoration of the principal of the Cherokee
funds, held in trust in lieu of investments. )”
Washington, D. C., April 28, 1894.
(Signed) : iy, Jas. A. SLADE.
| Jos. T. BENDER.

3. The Award

Or finding of the Special Commission, Messrs. James A.
Slade and Joseph T. Bender, or special accountants as they
were called, appointed by the Secretary of the Interior unde::
the act of March 3, 1893 (27 Stat. L. pp. 612, 643 p. 10) by
which Congress appropriated $5,000 for the making of said
accounting was the result of previous negotiations between the
United States and the Cherokee Nation in which the United
States were intent upon the purchase of the Cherokee Outlet,
or Oklahoma Strip from the Indians, known as

4. The Cherokee Agreement.

“In making the settlement of 1851 the accounting officers of
the Government charged against the Cherokee five-million-
dollar trust fund the sum of $1,111,284.70 on account of re-
moval expenses. The appropriations made by Congress July
2, 1836, of $600,000, and of June 12, 1838, of $1,047,067 were
made primarily to meet the expenses of removing the Chero-
kees to the Indian Territory. | tsa Sh
yew be Court of Claims finds, as a matter of fact, that only
$382,201.22 was paid from the amount appropriated for re-
movals ($1,647,067) by the act of July 2, 1836, and June 12,
1838, while the greater part of the expenses of removing the
Eastern Cherokees, to wit, $1,111,284.70, was, in fact, charged
against the five-million-dollar trust fund. Congress, in- the-act






o

if then in session, and if not, then at the session immediately
following such accounting. (Senate Ex. Doc. 56, Fifty-second
Congress, first session, 27 Stat. 643.)” (Finding IX.) ce

“Congress, on March 3, 1893 (27 Stat. L., 640), ratified the
Cherokee agreement, and on the same day (27 Stat. L., 643)
_ appropriated $5,000 for the employment of experts to render a
complete account of moneys due the Cherokees, as required in
the fourth subdivision of article 2 of said agreement. Under
this provision Messrs. James A. Slade and Joseph T. Bender
were appointed commissioners to render the account referred
to in said agreement. The commissioners made their report,
bearing date April 28, 1904, whereby, among other things,
they reported that there had been improperly charged to the
$5,000,000 treaty fund the sum of $1,111,284.70 on account of
the amount paid for the removal ‘of the Eastern Cherokees to |
the Indian Territory, and that this sum, with interest' from
June 12, 1838, to date of payment, was due under the fifteenth
article of the treaty of 1835.

“The Court of ‘Claims finds as a fact that the account stated
by Messrs. Slade and Bender was rendered to the Cherokee
Nation and duly accepted by act of their national council in the
manner and form provided in the agreement, and that no suit
has been brought by the Cherokee Nation against the United
States in the Court of Claims charging that such account was
incorrect or unjust. (C. C. R.)

“On January 7, 1895, the Secretary of the Interior transmit-
ted the account stated to the Speaker of the House of Repre-
sentatives, as follows, to wit: ? a

“ DEPARTMENT OF THE INTERIOR,
: “Washington, January 7, 1895.

“Sir: I have the honor to herewith transmit, in compliance
with the provisions of the third subdivision of article 2 of the
agreement made December 19, 1891, with the Cherokee In-
dians, ratified by the act of Congress approved March 3, 1893
(27 Stat., 643), a certified copy of ‘a complete account of
moneys due the Cherokee Nation under any of the treaties
made in the years 1817, 1819, 1825, 1833, 1835-36, 1846, 1866,
and 1868, and any laws passed by the Congress of the United
States for the purpose of carrying said treaties or any of them,






6

into effect,’ prepared in accordance with the provisions of the
said act of March 3, 1893, together with a certified copy of an
act of the Cherokee national council accepting such accounting.
“Very respectfully,
: “Hoke Smitu, Secretary.

“Tue SPEAKER OF THE House OF REPRESENTATIVES.”

«5. Suit No. 10386 Congressional.

This suit No. 349 was preceded in the Court of Claims by
suit No. 10386 Congressional, of that court, decided Apr. 28,
1902, entitled “The Eastern Cherokees vs. The United States,”
in which “The Eastern and Emigrant Cherokees” appear as
intervenors, and which was brought under the Bowman Act,
which only permitted the court to make “Findings of Fact,” as
follows: | | rt

Court oF CLAIMS, CLERK’S OFFICE,
| Washington, May 2, 1902.
Sir: Pursuant to the order of the court, I transmit herewith
a certified copy of the findings filed by the court in the afore-
said cause, which case was referred to this court by the reso-_
lution of the Senate of the United States under the act of
March 3, 1883. |
I am, very respectfully, yours, etc.,
, Joun RANDOLPH,
Assistant Clerk Court of Claims.
Hon. Wituiam P. Frye,
President of the Senate pro tempore.

[In the Court of Claims, Congressional, No. 10386. Decided
April 28, 1902. The Eastern Cherokees vs. The United
States. ] |

STATEMENT

The claim in the above-entitled case was transmitted to the
court by resolution of the United States Senate February 20,
1901, as follows:

“Resolved, ‘That the bill (S. 3681) entitled ‘A bill for the
payment of the award of the Secretary of the Interior in favor
of the Cherokees, made under the provision of the act of Con-




7

gress of March third, eighteen hundred and ninety-three,’ now
pending in the Senate, together with all the accompanying’
papers, be, and the same is hereby, referred to the Court of
Claims, in pursuance of the provisions of an Act entitled ‘An
act to afford assistance and relief to Congress and the Execu-
tive Departments in the investigation of claims and demands
against the Government,’ approved March 3, 1883; and the
said court shall proceed with the same in accordance with the
provisions of such act, and report to the Senate in accordance
therewith.” |

‘Senate bill 3681, referred to in. the above resolution, is as
follows: |

“A bill providing for the payment of the award of the Sec-
retary of the Interior in favor of the Cherokees, made under
the provision of the act of March third, eighteen hundred and
ninety-three. , :

“Whereas by the act of Congress approved March. third,
eighteen hundred and ninety-three (Twenty-seven Statutes,
six hundred and forty), the so-called Cherokee agreement was
‘ratified by the Congress of the United States, * * * and
it was agreed therein that ‘the provisions of said agreement so
amended shall be fully performed and carried out on the part
of the United States ;’ and

‘Whereas in said Cherokee agreement it was expressly pro-
vided that ‘the United States shall without delay render to the
Cherokee Nation’ ‘a complete account of moneys due the
Cherokee Nation under any of the treaties,’ and ‘if it shall be
found upon such accounting that any sum of money has been
so withheld the amount shall be duly appropriated by Con-
gress’ ‘at the session immediately following such, accounting,’
and |

“Whereas the said act of Congress appropriated the sum of
five thousand dollars (Twenty-seven Statutes, six hundred
and forty-three), ‘to enable the Commissioner of Indian Af-
fairs, under the direction of the Secretary of the Interior, to
employ such expert person or persons to properly render a com-
plete account to the Cherokee Nation of moneys due said na-
tion, as required by the fourth subdivision of article two of.
said agreement ;’ and.






“Whereas James A. Slade and Joseph T. Bender were duly
appointed by the Secretary of the Interior as experts to ren-
der the account as above authorized by Congress, and did on
April twenty-eighth, eighteen hundred and ninety-four, report
and render an account of certain sums due the Cherokee Na-
tion, with interest thereon as itemized and set forth on page
thirty-two, House of Representatives. Executive Document
Numbered One hundred and eighty-two, Fifty-third Congress,
third session; and i |

‘Whereas the Secretary of the Interior did, on January
seventh, eighteen hundred and ninety-five, transmit, in com-
pliance with the provision of the third subdivision of article
two of the agreement made December nineteenth, eighteen
hundred and ninety-one, with the Cherokee Indians, the above
complete account’ of moneys due the Cherokee Nation, pre-
pared in accordance with the provisions of the said. act of
March third, eighteen hundred and _ ninety-three. together
with a certified copy of an act of the Cherokee national coun-
cil accepting said accounting: Now, therefore, |

“Be it enacted by the Senate and House of Representatiwes
of the United States of America in Congress assembled. That
there is hereby appropriated, out of any money in the Treas-
uty not otherwise appropriated, a sum sufficient to refund to
the five million dollar fund of the Eastern Cherokees the
amount erroneously withdrawn therefrom on account of the
removal of the Eastern Cherokees under the treaty. of eighteen
hundred and thirty-five to the Indian Territory, together with
interest thereon, as found due by James A. Slade and Joseph
1. Bender, expert accountants, acting under the direction of
the Secretary of the Interior, in purstiance of the provisions
of the act of Congress of March third, eighteen hundred and
rtinety-three, said interest to be computed at the rate of five
per centum per annum from June twelfth, eighteen hundred
and thirty-eight, until paid, in accordance with the resolution
of the Senate of the United States of September fifth, eigh-
teen hundred and fifty; and the Secretary of the Treasury is
hereby directed to pay the principal and interest of said sum
to the Eastern Cherokee Indians, per capita, in accordance
with the ninth article of the treaty of eighteen hundred and
forty-six.”






9

The case was brought to a hearing on its merits on the 24th
day of March, 1902. Robert L. Owen, Esq., was heard for
the Eastern Cherokees residing in the Indian Territory; Mrs.
2elva A. Lockwood was heard for certain individual Chero-
kees residing, some in the Indian Territory and some in the
State of North Carolina, etc.; R. V. Belt, Esq., was heard for
the Eastern Cherokees residing in the State of North Caro-
lina and in other States east of the Mississippi, and L. T.
Michener, Esq., was heard for the Cherokee Nation; and the
Attorney-General, by George H. Gorman, Esq., his assistant,
and under his direction, appeared for the defense and protec-
tion of the interests of the United States.

The court, upon the evidence and after considering the
briefs and arguments of counsel on both sides, makes the fol-
lowing findings of fact: * * *

(These findings are lengthy—quite in detail, and do not dif-
fer materially from the findings presented to this court on ap-
peal, and are set forth in full in our Find’»~s of Fast and
Brief to the court below, except as to the conclusions of law
and judgment, and close as follows: after reciting the Chero-
kee agreement. * * * :

In these Findings there was no right of appeal, and really
nothing to appeal from, but they formed a necessary incident
to this case.) |

“The foregoing statement covers, it is believed, every point
at issue which can be raised under the treaties described in the
articles of agreement, and the result of the finding is sub-
mitted in the following schedule :”

“Under the treaty of 1835: Amount paid for removal of
Eastern Cherokees to the Indian Territory, improperly charged
to the treaty fund, $1,111,284.70, with interest from June 12,
1838, to date of payment.”

X. The account as thus stated by Messrs. Slade and Bender
was rendered to the Cherokee Nation and duly accepted by act
of their national council in the manner and form provided in
the agreement, and no suit has been brought by the Cherokee
Nation against the United States in the Court of Claims charg-
ing that such account was incorrect or unjust.

By THE Court.


|



10

Filed April 28, 1902. ONG

A true copy. thy

Test this 29th day of April, 1902.

[ SEAL. ] JOHN RANDOLPH,
Assistant Clerk Court of Claims.

6. The Eastern and Emigrant Cherokees.

The counsel for the Eastern and Emigrant Cherokees in
cause No. 23,212, accepted these findings of the court, adopted
them in the case 23,212, and requested the court to find further
as follows:

XT. This account was transmitted to the Secretary of the
Treasury, and he replies that he has ‘nothing to add to the
(Slade and Bender) report.”

XII. It was promptly presented to the Secretary of the In-
terior, who accepted it without demurrer or objections and
January 7, 1895, was transmitted by that official to the Speak-
er of the House of Representatives for an appropriation, and
was in course duly submitted to the Committees on Indian

Affairs.

XIII. The Senate Committee on Indian A‘ffairs, May, 1902,
appointed a sub-committee composed of Senators John T.
Morgan, Porter J. McCumber, and Matthew S. Quay to con-
fer and report on Senate Bill No. 58685, second session, Fifty-
seventh Congress, which had been introduced into that body
for the payment of the award of the Commission. This Com-
mission reported, p. 5: “Your Committee find that the ac-
count stated by the Interior Department, in accordance with
the fourth sub-division of article 2 of the Cherokee Agreement
above cited, constitutes an award: ‘That it was made in pur-
suance of a carefully drawn contract, with the express stipu-
lation in the face of the contract that ‘if it be found on such
accounting that any sum of money has been so withheld, the
amount shall be duly appropriated by Congress.’ ” Again, on
page 6: “Your Committee find that, under the principles laid
down in the opinion of the Supreme Court of the United
States, the award rendered under the contract of December 19,

901, must be held as conclusive.” Their report closes, p. 8:

“Your Committee therefore recommend that said bill be_








at

passed.” ;

XIV. That the amount thus found by the Commission,
Messrs. Slade and Bender, of $1,111,284.70, with interest at 5
per cent from June 12, 1838, to date of payment, in accordance
with treaty stipulations, is due to the Eastern and Emigrant
Cherokees, whose names, or those of whose ancestors are found
on the Cherokee rolls of 1835-6 and 1852, about 4,000 of whom
still reside in North Carolina, north Georgia, northern Ala-
bama and eastern Tennessee, and a much larger number, to
wit, about seventeen thousand persons, who have removed to
the Indian Territory, some of whom form a part, and some do
not, of the Cherokee Nation, so called, but all the persons
enumerated herein are entitled to participate in this fund, all
having Cherokee Indian blood, and the sale of whose lands in
the States enumerated in 1835, constitutes the base of the in-
terest bearing fund of $5,000,000, from which the amount
claimed was improperly taken. Rolls of 1838 gives 16,211
removed and 2,202 remaining. }

XV. The Court further finds that one-fourth of the whole
amount claimed, with interest thereon at 5 per cent from June
12, 1838, is due to the claimants whose names are enumerated,
and powers of attorney filed in the within cause, No. 23,212,
jin accordance with their numbers, and that judgment should
be rendered to them for that amount, as required by the
statute.

BELVA A. Lockwoop,
Counsel for Eastern and Emigrant Cherokees.

7. Belong to the Cherokee People.

To eliminate any surplus matter and to avoid confusion, the
court will note that the claimants, the Cherokee Nation, the
Eastern and Emigrant Cherokees, and the Eastern Cherokees,
in the three consolidated cases, all agree that the sums set forth
in the several items are due to the Cherokee people from the
United States, and that the defendant does not appeal from
this portion of the decree. There is no dispute between the
claimants, or even with the Government about the arithmetic
of the accountants, or the precise sum named in the litigation.




12

The former Government counsel in this case, Mr. Gorman,
cited the case very tersely when he said:

“There is really no controverted question of fact presented
in this case for the determination of this Court. ‘The facts are
historical in their nature. * * * Are not. subject of dis-
pute or controversy. The question presented by the record 1s
purely one of law, to wit, whether the cost of the removal of
the Eastern Cherokees to the Indian Territory is to be borne
by the Cherokee Nation and deducted from the treaty fund, or
whether the cost thereof is to be defrayed by the United
States without charge to the Indians.” ‘This is very tersely
and correctly put, and is the gist of the whole matter; and the
words of the treaty are so clearly stated that it seems impos-
sible to mistake its meaning.

Again he says: “‘Neither party has questioned the accur-
acy of this report upon any question of fact, so that if the
charge for removing the Indians is to be borne by the United
States, that sum is properly due to the Indians, and, otherwise,
it is properly chargeable to the treaty fund.” The Court of
Claims has decided that the sum in controversy is due to the
Cherokees.

8. They Further Agree

as the court will note, that the three items of the award
numbers one, three, and four are conceded to belong to the
Cherokee Nation without demurrer or discussion, as named
by the court, or rather as we think to the Cherokee people; the
court says “to the Cherokee Nation as a political or social
body.” This alone carries with it a judgment, in the case in
favor of the Cherokee Nation, and satisfies the terms of the
agreement. We think that it should be the Cherokee people
for whom they stood, but are not, disposed to contest it, as the
Cherokee Nation as it now stands has become a close corpora-
tion without even corporate powers—cannot sue or be sued,






15

and is on the verge of dissolution. This also conforms to the
agreement, which the court below seems to have carried in its
mind, and to have interpreted as meaning the whole award,
as the Cherokee Nation could only stand at best with refer-
ence to the Eastern and Northern Carolina Cherokees, or for
the Eastern and Emigrant Cherokees, as a naked trustee, and
they have therefore, erroneously, as we think, adjudged to
them the whole matter in issue in these words: ‘That the
Cherokee Nation do have and recover of and from the United
States as follows:” naming the four items of the award.

9. The Difference in the Findings,

The difference in the findings of the several parties in inter-
est are for the most part more technical than material, some of
them clerical, with the exceptions of vital matters discussed
hereafter. (The decree, based upon the opinion of the court
of March 20, 1905, and of May 18, 1905, with the conclusions
of law, signed and transmitted to the clerk of court for entry
by Chief Justice Nott, are as follows: Ae

10. Conclusions of Law.

“Upon the foregoing facts the court concludes as matters of
law: :

“First. That the United States is indebted to the Cherokee
Nation in the following amounts, viz.: |

“(1) The sum of $2,125, with interest at 5 per cent from
February 27, 18109, to date of payment ;

“(2) 'The sum of $1,111,284.70, with interest at 5 per cent
from June 12, 1838, to date of payment ;

“(3) The sum of $432.28, with interest at 5 per cent from
January 1, 1874, to date of payment; |

(4) The sum of $20,406.25, with interest at 5 per cent
from July 1, 1893, to date of payment,
and is entitled to have judgment entered in its favor against
the United States therefor.

“Second. The proceeds of so much of said judgment as per-
tains to the items numbered 1, 3, and 4 equitabl: belong to the


14

Cherokee Nation as a political or social body, and such pro-
ceeds, less any proportion thereof which the Cherokee Nation
may have contracted to pay on account of counsel fees and
other expenses of this litigation, should be paid or disposed of
as follows, viz:

“(a) The amount represented by item numbered three (3)
for $432.28, and interest, should be paid to the treasurer of the
Cherokee Nation, or to such other person or officer either of
the nation or of the United States as may hereafter succeed to
his duties ; |

“(b) The amount represented by item numbered one (1),
for $2,125 and interest, should be paid to the Secretary of the
Interior in trust and credited on the proper books of account
to the principal of the ‘Cherokee school fund,’ of which fund
the United States are trustees;

“(c) The amount represented by item numbered four (4),
for $20,406.25 and interest, should be paid to the Secretary of
the Interior in trust and credited on the proper books of ac-
count to the ‘Cherokee national fund,’ of which fund the Unit-
ed States are trustees ; |

‘“(d) The amount represented by item numbered two (2)
for $1.111,284.70 and interest, less counsei fees and expenses,
equitably belongs to the Eastern and Western Cherokees who
were parties either to the treaty of New Echota, proclaimed
May 23, 1836, or the treaty of Washington, of August 6, 1846,
as individuals, whether east or west of the Mississippi River,
and should be paid to them or to their legal representatives by
the Secretary of the Interior.”

(If the court means in clause “d” only those Cherokees who
were parties to the Treaty of 1836 and 1846, then we agree
with it.)

“Third. Such counsel fees as may have been contracted to
be paid by the Cherokee Nation in the manner prescribed by
sections 2103 to 2106, both inclusive, of the Revised Statutes
of the United States, and such other counsel fees and expenses
as may be allowed by this court pursuant to the provisions of
the act of March 3, 1903, set forth in Finding of Fact No. I,
should be paid to the parties entitled to receive the same by
the Secretary of the Treasury upon the making of an appro-








15

priation by Congress for the payment of the judgment in this
cause.

“Fourth. The cost and expenses incident to ascertaining and
identifying the individuals entitled to participate in the distri-
bution of the balance of the amount represented by item num-
bered two (2), and the making of the distribution thereof,
should be a charge upon such balance for distribution and
should be deducted therefrom.”

11. Court of Claims.
(Record, page 112.)

No. 23199.
THE CHEROKEE NATION v. THE UNITED STATES.
, No. 23214.
THE EASTERN CHEROKEES v. THE UNITED
STATES AND THE CHEROKEE NATION.
NO, 23212...
THE EASTERN AND EMIGRANIT CHEROKEES v.
THE UNITED STATES.
JUDGMENT ENTERED MAY 18, 1905.

The above causes, on motion and by consent of the parties.
having heretofore been consolidated for purposes both of hear-
ing and judgment by appropriate order of this court, came on
to be heard upon the pleadings, orders, and proofs, and were
argued by Messrs. Charles Nagel, Edgar Smith, and Frederic
D. McKenney, on behalf of the Cherokee Nation; Messrs.
Robert L. Owen and William H. Robeson, on behalf of the
Eastern Cherokees; Mrs. Belva A. Lockwood, on behalf of
certain individual claimants, styled Eastern and Emigrant
Cherokees, and Mr. Assistant Attorney-General Pradt, on be-
half of the United States; and the court being now sufficiently
advised in the premises, it is, this 18th day of May, A. D. 1905,
adjudged, ordered, and decreed that the plaintiff, the Cherokee
Nation, do have and recover of and from the United States as
follows: ci | EO
[tend The ca cect) als dulce ely ierne $2,125.00

With interest thereon at the rate of 5 per cent ne

from February 27, 1819, to date of pay-
ment.


16

Te ae i a aa 1,111,284.70

With interest thereon at the rate of 5 per cent

from June 12, 1838, to date of payment.
Tt). 2a) ea MRE EMO AU Ghar. ai lath igi tila: Deen, huis: We 432.28

With interest thereon at the rate of 5 per cent |

from January 1, 1874, to date of payment.
PRCT Li Ree MME ES IU. Vu alan bile la ab wi MiB UAL 924 20,406.25

With interest thereon from July 1, 1903, to

date of payment.
The proceeds of said several items, Eoaever, to be paid and
distributed as follows:

The sum of $2,125 with interest thereon at the rate of 5 per
cent from February 27, 1819, to date of payment, less 5 per
cent thereof contracted by the Cherokee Nation to be paid as
counsel fees, shall be paid to the Secretary of the Interior in
trust for the Cherokee Nation and shall be credited on the
proper books of account to the principal of the “Cherokee
school fund” now in the possession of the United States and
held by them as trustees.

The sum of $432.28 with interest thereon at the rate of 5
per cent from January I, 1874, to date of payment, less 5 per
cent thereof contracted by the Cherokee Nation to be paid as
counsel fees, shall be paid. to the Cherokee Nation to be re-
ceived and receipted for by the treasurer or other proper agent
of said nation entitled to receive it.

The sum of $20,406.25, with interest thereon at the rate of
5 per cent per annum from July 1, 1893, to date of payment,
less 5 per cent thereof contracted by the Cherokee Nation to
be paid as counsel fees, shall be paid to the Secretary of the
Interior and credited on the proper books of account to the
principal of the “Cherokee national fund,” now in the posses-
sion of the United States and held by them as trustees.

The sum of $1,111,284.70, with interest thereon from June
12, 1828, to date of payment, less such counsel fees as may be
chargeable against the same under the provisions of the con-
tract with the Cherokee Nation of January 16, 1903, and such
other counsel fees and expenses as may be hereafter allowed
by this court under the provisions of the act of March 3, 1903
(22 Stat., 996), shall be paid to the Secretary of the Interior,
to be by him ane and held for the uses and purposes fol-
lowing:






17

First. To pay the costs and expenses incident to ascertain-
ing and identifying the persons entitled to participate in the
distribution thereof and the costs of making such distribution.

Second. The remainder to be distributed directly to the
astern and Western Cherokees, who were parties either to
the treaty of New Echota, as proclaimed May 23, 1836, or the
treaty of Washington of August 6, 1846, as individuals, wheth-
er east or west of the Mississippi River, or to the legal repre-
sentatives of such individuals.

So much of any of the above-mentioned items or amounts as
the Cherokee Nation shall have contracted to pay as counsel
fees under and in accordance with the provisions of sections
2103 atid 2106, both inclusive, of the Revised Statutes of the
United States, and so much of the amount shown in item num-
bered two (2) as this court hereafter by appropriate order or
decree, shall allow for counsel fees and expenses under the pro-
visions of the act of March 3, 1903, above referred to, shall
be paid by the Secretary of the ‘Treasury to the ~ersons enti-
tled to receive the same upon the making of an appropriation
by Congress to pay this judgment. :

The allowance of fees and expenses by this court under said
act of March 3, 1903, is reserved until the coming in of the
mandate of the Supreme Court of the United States.

12. United States Objects.

From this final decree the United States, represented by
Hon. Lewis A. Pradt, has appealed, as was expected, because
the special acts sending these cases to the court pre-supposed
an appeal, and Congress does not wish to appropriate money
for this large amount without a decree from this Honorable
Court.

Because it is the custom of the counsel for the Government
to oppose the payment of money by its officers, especially in

large sums, and he is paid to rack his mentality for objections
to such payments, even if far fetched, as they have been in this

case, referring mostly to the status of the expert accounts,
Messrs. Slade and Bender, for having injudiciously arrived at
the conclusion that the United States Government was indebt-




18

ed (as they state it) to “amount paid for removal of Eastern
Cherokees to the Indian Territory,” improperly charged to the
treaty fund of $1,111,284.70, with interest thereon at 5 per
cent per annum from June 12, 1838, to date of payment,” due
under the 15th article of the Treaty of 1835; which is the con-
tention in this case. The counsel for the Government further
objects, as do we, to the payment of any portion of the sum
mentioned in the second item of the award to the Western
Cherokees or Old Settlers, otherwise known as the Cherokee
Nation, for the reason that their proportion of this fund from
which the money was improperly taken, viz.: “one-third part
of said residuum” was paid to them and distributed per capita
in accordance with Art. 4 of the Sixth Treaty of Washington,
as allowed Sept. 30, 1850, and their receipts, as a full discharge
of the Government’s obligation to them on this account was
given therefor, and is on file in the Treasury Department.

13. The Eastern Cherokees Object.

From this decision the Eastern Cherokees, represented by
Messrs. Owen and Belt, have appealed—objecting to any pay-
ment being made to the Western Cherokees alias the Cherokee
Nation out of Item 2, for the reason stated above, that they,
the Western Cherokees, have already had their share, and are
not entitled to participate in this fund, that the indebtedness is
one especially due to the Eastern Cherokees as represented by
the treaty of 1835-6-8 and of 1846, and that the Cherokee Na-
tion as a body politic or a corporation are now practically de-
funct, are not entitled either equitably or legally to receive or
distribute any portion of this fund, a fact well understood by
the rank and file of the Cherokee people, although the princi-
pal chief and his advisers at a very late day were constrained
to ask for it, and to file their suit herein, Notwithstanding that
their agreement with the Government was uncompleted, they
not only did not bring suit but they did not assist in the legis-




19

lation which sent this Congressional claim to the Court of
Claims for Findings of Facts, or later sent it back for a judg-
ment, or take any serious interest in the matter until the court
had made its findings, sent them to Congress for an appropria-
tion, and Congress had enacted new legislation, sending the
case back to the court for final adjudication; and after notifi-
action by the Secretary of the Interior, the case having been
abandoned by their former attorneys, when the Nation, SO
called, appears by counsel and claims the whole fund.

14. Counsel for the Eastern and Emigrant Cherokees sus-
tains the Eastern Cherokees in their contention against the
United States and as against the Cherokee Nation, and as to
the reasons therefor; and their cause and that of the Eastern
and Emigrant Cherokees in this regard is virtually one ex-
cept for the specific proportions of the money claimed, and as
to the individuals who are to receive it; the Eastern Cherokees
Claiming the whole amount and the Eastern and Emigrant
Cherokees claiming only one-fourth of item two of the award,
or their pro rata according to their number.

15. The Eastern and Emigrant Cherokees |

Stand in the same position as the Eastern Cherokees with
reference to the status of this fund and its payment, believing
that it should be paid entirely to the Eastern and Emigrant
Cherokees as individuals per capita as provided by the treaties
of 1835-6 and 46, whose lands in North v...olina, orth
Georgia, Northern Alabama and lLastern (Tennessee, all
formerly the Province of North “Carolina, were sold to create
the Five Million Fund—an interest bearing fund in the hands
of. the Government, from which the $1,111,284.70 was, as the
expert accountants state, “improperly taken.”

‘They believe that the appeal of the government, with the
fair mindedness and clear sightedness of this court, when the






20

facts are fully before them, will do them justice. They were
not paid their two thirds of this fund as agreed by the Treaty
of 1835, when the old settlers, or Western Cherokees received
their-one third, which was distributed pro rata. See Opinion
of the Court. ae

16. The Oklahoma Strip or Outlet West.

The Eastern and Emigrant Cherokees here represented, re-
ceived no portion of the eight million five hundred thousand
($8,500,000) dollars, paid to the Cherokee Nation, for the
Oklahoma Strip or Outlet West, ceded to the Cherokee people,
and their descendants forever ; nor have they for the most part

been able to receive allotments of the lands in the Indian Terri-

tory which is being distributed in sevralty to the members of
the Cherokee Nation or socalled ‘citizens’ for the reason that
they did not remove West soon enough, or have gone outside
of the Territory to make their living—some of them to teach
or to preach, and some to go into trades, or to cultivate the
soil; and all of them -poor—mostly without lands, with moder-
ate means, striving to eke out an existence, and to become
worthy citizens of the United States, and to whom their small
pro rata of this award would be a partial compensation for
their entire loss of land in the Indian Territory, their attempts
at thrift working against them by the Act of the National
Council.

17. What are the facts?

There is no longer any Cherokee Nation. Congress on the
ard of March, 1901, and before the filing of this suit, wiped out
the Cherokee Nation and all of the tribal relations of the five
civilized tribes of Indians in the Indian Territory by deter-
mining that it should go into liquidation Mar. 4, 1906. ‘The
Cherokees themselves, by act of their National Council, voted
to abolish their tribal relations Mar. 30, 1906.


21

bom

Public No, 173.

“An act to amend Section 6, Chapter 119, United States
Statutes-at-Large, No. 24, p. 390: Be it enacted by the Senate
and House of Representatives, U. S. A, etc.,

“That Section 6, of Chapter 119 of the United States
Statutes-at- Large, No. 24, page 390, is hereby amended as
follows, to wit: After the words ‘civilized life,’ in line 13 of
said Section 6, insert the words ‘and every Indian in Indian
Territory. Approved March 3, Ig9o1.”

Section 6, Chapter 119, U. S. S. No. 24, page 390, February
8, 1887, to which these amendments apply, reads: ‘That upon
the completion of said allottees, each and every member of the
respective bands or tribes to whom allotments have been made,
shall have the benefit of, and be subject to the laws, both civil
and criminal, of the State or Territory in which they may
reside; and no Territory shall pass or enforce any law denying
any such Indian within its jurisdiction the equal protection of
the law. And every Indian born within the territorial limits
of the United States to whom allotments shall have been made
under the provisions of this Act, or under any law or under
any law or treaty, and every Indian born within the territorial
limits of the United States who has voluntarily taken up, within
said limits his residence separate and apart from any tribe of
Indians therein, and has adopted the habits of civilized life, is
hereby declared to be a citizen of the United States, and is
entitled to all the rights, privileges and immunities of such citi-
zens, whether said Indian has been or not, by birth or other-
wise, a member of any tribe of Indians within the territorial
limits of the United States, without, in any manner impairing,
or otherwise affecting the right of any such Indian to tribal or
other property.”

Thus it will be seen that Section 2,103 of the United States
Revised Statutes, p. 37, with reference to contracts with
Indians, is repealed by implication, and any civilized Indian or




22

Indians, may contract, sue, or be sued, the same as any white
citizen.

But the indebtedness sted for here is based upon the
treaty of 1835. That treaty was modified by “The Sixth Treaty
of Washington,” proclaimed Aug. 17, 1846. ‘The last half of
Article 7, of this treaty, pages 104-5, T. B., states: ‘All the
investments and expenditures which are properly chargeable
upon the sums granted in the Treaty of 1835, amounting in the
whole to $5,600,000 (which investments and expenditures are
particularly enumerated in the 15th 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, ex-
cluding all extravagant and improper expenditures, and then
allow to the Old Settlers (or Western Cherokees) a sum equal
to one-third (1-3) part of said residuum to be distributed per
capita to each individual of said party of “Old Settlers,’ or
“Western Cherokees. (Paid Sept. 30, 1850.) ‘That the prin-
cipal above defined shall embrace all of those Cherokees west
of the Mississippi River who emigrated prior to the Treaty of
1835.” Here we have nothing to be distributed to the Western
Nation, so called, or the people who formerly composed it,
calling themselves now the Cherokee Nation in distinction from
the Eastern and Emigrant Cherokees. This amount is also
found by counsel for the Government in his original brief p. 9.

18. Why In This Appeal?

a. ‘The Eastern and Emigrant Cherokees are in this Appeal,
first, by reason of their independent suit, No. 23,212, brought
‘n the Court below, not as a Nation or a Band, but as individ-
uals or families by their individual or family powers of attor-
ney duly executed, with a history of their Cherokee origin, and
numbering about 6,000 persons, the scale ascending as the


23

parties have petitioned to come in, having numbered in the
first suit only about two thousand persons.

b. They are in this Appeal because the United States in its
Appeal and contention on the only point at issue—the manner
of payment of item 2, have brought them here.

c. They are in this Appeal because of their Intervention in
Suit No. 23,199 of the Court below, in which they claimed
their one-fourth share of the fund included in item 2, and “The
Nation,” with consummate modesty, claimed the whole award,
while they only number about one-third of the Cherokee people.

d. They are in this suit because their contention and claim
is embodied in Suit No. 23,214, in which they, the Eastern
Cherokees, claim the whole of item two with the interest
thereon, and they have Intervened in Suit No. 23,212 whose
members only claim their one-fourth, or pro rata share, accord-
ing to their numbers; and because all of these suits by motion
of the Eastern and Emigrant Cherokees, and by motion of the
United States as embodying the same subject matter, were by
order of the Court below consolidated and heard together as
one suit; and the decision in that consolidated suit is the Decree
here appealed from,—or only that portion embodied in item
two, and not on account of the amount involved for that is an
agreed fact, but to whom shall it be paid? The Eastern and
Emigrant Cherokees ask for one-fourth of Item Two to be
distributed to them as individuals or as families. !

19. The Cherokee Nation Objects.

The Cherokee Nation, represented by its counsel, Edgar
Smith, Frederic D. McKenney, and others, having received the
judgment of the Court in their favor as far as it was possible
in all conscience for the court to make it, now “want the earth”
as well as the money, and appeal from the decision of the Court
below, because it does not allow them to distribute the money
contemplated in item two, instead of the Secretary of the In-




24

terior, who is the proper custodian of this fund, atid in face of.,
the fact that the law forbids them to distribute it, or any other
Indian funds. |

+0. The Cherokee Nation could not receive this money for
distribution under any equitable decision of the Court, nor in
any capacity except as trustee of the fund; and it stands in no
sense in the relation of Trustee to the Cherokees in North
Carolina, Georgia, Alabama and Tennessee, or in Missouri and
Arkansas, nor could the terms of the treaty be fulfilled in that
way, and the United States be discharged of its obligation. The
Treaty of 1835-6 upon which the money in item two is based
read as follows: |

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 the 2oth of Decem-
her, 1875. which said settlement shall exhibit all money proper-
{fy expended under said Treaty, and shall embrace all sums
paid for improvements, ferries, spoliations, removal and sub-
sistence, and commutation therefor, debts, and claims upon the
Cherokee nation of Indians for the additional quantity of land
ceded to said nation; and the several sums provided in the
several articles of the treaty, to be invested as the general fund
of the nation: and all sums which may be hereafter properly al-
lowed and paid under the provisions of the Treaty of 1835.
The aggregate of which said several sums shall be deducted
from the sum of $6,647,067, and the balance thus found to be
due shall be paid over per capita, in equal amounits, to all those
individuals, heads of families, or their legal representatives, en-
titled to receive the same under the Treaty of 1825, and the
supplement of 1836, being all those Cherokees residing East
at the date of said treaty and the supplement thereto.”

Art. 10. “It is expressly agreed that nothing in the fore-
going treaty contained shall be so construed as in any manner
to take away or abridge any rights or claims which the Chero-
kees now residing in States East of the Mississippi River had,
or may have had, under the treaty of 1835, or the supplement
thereto.” |


‘at. Tt will be seen by the above articles that this mioriey
when paid must, in order to comply with the Treaty of 1835,
be paid either per stirpes or per capita, and so Mr. Gorman,
the government counsel, declared in his first brief, but per
capita we hope.

The second itetn of the report, belongs exclusively to the
Eastern and Emigrant Cherokees, and as tersely told in that
report, this amount was “improperly charged to the Treaty
Fund,” said Treaty Fund being an interest bearing Fund held
by the United States as trustee for the Eastern and Emigrant
Cherokees, and created by the sale of Cherokee lands in North
Carolina, North Georgia, Northern Alabama and Eastern Ten-
tessee, said lands belonging to those individual Cherokees,
whose names, or those of whose ancestors appear on the census
roll of 1835, and 1836, some of whom still rema’n in those sec-
tions of the country,—many on reservations, and a larger num-
ber who have gone West, to the Indian Territory, but whose
names are enumerated herein, identity given, and genealogy
proven. :

22. The Cherokee Nation

Has no longer any existence except in name. It has been emas- —
culated of all power; cannot establish courts or make laws for
its people, and though claiming this fund, by virtue of the
agreement is forbidden by statute from receiving it.

The Act of June 28, 1898, (Curtis Act,) reads, Sec. 19 (30
U. S., Stat. p. 495) :—

“That no payment of any moneys on any account whatever
shall heteafter be made by the United States to any of the
tribal governments, or any officer thereof, for disbursement, but
payments of all. sums to members of said tribes shall be made
under direction of the Secretary of the Interior, by an officer
appointed by him; and, per capita payments shall be made
direct to each individual in lawful money of the United States,
and the same shall not be liable to the payment of any previous-




TES St

_ ly contracted obligation.”

So it will be seen that the Nation, so-called, cannot receive
and disburse this money even ag trustee, and is neither equit-
ably or legally entitled to receive it.

23. Opinion of the Court (Ninth page).

We cannot do better here than to quote the opinion of the
Court below, who after the most careful and painstaking re-
search, and hearing of lengthy arguments, has delivered among’
other things the following :— .

“The present case is also complicated by the fact that a con-
siderable portion of these communal owners are neither citizens
of the Cherokee Nation nor subject to its jurisdiction nor
dwellers within its territory, but are and always have been resi-
dents of territory east of the Mississippi, owing allegiance now
exclusively to the United States. It is also complicated by the
fact that the account rendered by the United States to the
Cherokee Nation is made up of four distinct and essentially
different items: One, the chief one, is for money erroneously
charged to the Cherokees instead of being divided per capita
among them; another is for money which should have been
added to the principal of the school fund, a fund which is held
by the United States in trust; a third is for money improperly
charged to the Cherokee national fund, likewise held in trust
by the United States. Only one appears to be money properly
due to the Cherokee Nation as a government, and that for the
inconsiderable amount of $432.28. The case is further com-
plicated by the fact that the government of the Cherokee Nation
is passing away; that it has already ceased to possess a judici-
ary, and that on the 4th of March, 1906, it will, to all intents
and purposes, expire.

“The action instituted in this court by the Cherokee Nation
was properly an action at law to recover a liquidated amount
of money upon am express contract. But the act of Ist July,
1902 (32 Stat. L., p. 716, 68), under which it was instituted,
authorized the court to adjudicate any claim which the Chero-
kee Nation “or any band thereof’ might have against the
United States, with “full authority by proper orders and
24

process to make parties to any such suit all persons whose pres-
ence in the litigation 1t may deem necessary or proper to the
final determination of the matter in controversy” The supple-
mental act 3rd March, 1903 (32 Stat. L., p. 996), expressly
authorized “the Eastern Cherokees, so-called, including those
in the Cherokee Nation and those who remained east of the
Mississippi River,” to come in and prosecute their claims, with
power to the court “also to determine as between the different
claimants, to whom the judgment so rendered equitably be-
longs.” ‘The case, then, being that of many persons severally
interested in a common fund, is one of which equity takes juris-
diction; and the several suits merged by interpleader into one
have become a suit in equity.

“While the United States have always, or nearly always,
treated the members of an Indian tribe as communal owners,
they have never required that all the communal owners shall
join in the conveyance or cession of the land. From the neces-
sities of the case the negotiations have been with representatives
of the owners. The chiefs and headmen have ordinarily been
the persons who carried on the negotiations and who signed the
treatv. But they have not formed a body politic or a body cor-
porate; and they have not assumed to hold the title or be en-
titled to the purchase money. They have simply acted as rep-
resentatives of the owners, making the cession on their behalf
but allowing them to receive the consideration per capita. In
the present case the Cherokee Nation takes the place, so far as
communal ownership is involved, of the chiefs and headmen of
the uncivilized tribes. This, too. is consonant with the usage
of nations. ‘The claims of individuals against a foreign power
are always presented, not by them individually, but by their
Government. The claims are pressed as international, but the
money received is received in trust, to be paid over to the per-
sons entitled to it. , |

“As to those Cherokees who remained in Georgia and North
Carolina, in Alabama and Tennessee, they owe no allegiance to
the Cherokee Nation and the nation owes no political protection
to them. But they, as communal owners of the lands east of
the Mississippi, at the time of the Treaty of 1835, were equally
interested, with the communal owners who were carried to the
west, in the $5,000,000 fund which was the consideration of the








28

cession, so far as it was to be distributed per capita. The Cher-
okee Nation was not bound to prosecute their claims against
the United States for the unpaid balance of the $5,000,000
fund; but their rights were inextricably woven with the rights
and equities of the Cherokees, who were citizens of the nation ;
and the nation properly made no distinction when parting with
the Outlet, but demanded justice, from the Cherokee point of
view, for all Cherokees who had been wronged by the nonful-
fillment of the Treaty of New Echota. As to these Eastern
nonresident Cherokee aliens the nation acted simply as an at-
torney collecting a debt. In its hands the money would be an
implied trust for the benefit of the equitable owners.

“After a careful consideration of the circumstances and con-
ditions of these cases, the court is of the opinion that the
moneys awarded should be paid directly to the equitable own-
ers. A great change has come within a few years both as to
the powers and the responsibilities of the Cherokee Nation. Its
statute went to the full extent of the civil law in making the
Government liable to all persons being citizens of the nation:
“The Cherokee Nation shall be liable to all persons whatever,
citizens of the nation, having claims at law or equity against
her, to the same extent as individual persons are liable to each
other, and may be sued by any citizen having a cause of ac-
tion.” (Code 1874, p. 240, Sec. 130.)

“But the judiciary has ceased to exist, and. as has before
been said, the nation itself as a government will cease to exist.
“The constitution of the Cherokees was a wonderful adaptation
to the circumstances and conditions of the time, and to a civili-
zation that was vet to come. It was framed and adopted by a
neonle, some of whom were still in the savage state and the
better portion of whom had just entered upon that stage of
civilization which is characterized by industrial pursuits, and it
was framed during a period of extraordinary turmoil and civil
discord, when the greater part of the Cherokee people had just
heen driven by military force from their mountains and vallevs
in Georgia, and been brought bv enforced immigration into the
country of the Western Cherokees: when a condition of an-
archy and civil war reigned in the Territory—a condition which
was to continue until the two branches of the nation should be
united under the Treaty of 1846 (27 C. Cls. R., 1); yet for








29

more than half a century it has met the requirements of a race
steadily advancing in prosperity and education and enlighten-
ment so well that it has needed, so far as they are concerned,
no material alteration or amendment, and deserves to be classed
among the few great works of intelligent statesmanship which
outlive their own time and continue through succeeding gener-
ations to assure the rights and guide the destinies of men. And
it is not the least of the successes of the constitution of the
Cherokees that the judiciary of another nation are able, with
entire confidence in the clearness and wisdom of its provisions,
to administer it for the protection of Cherokee citizens and the
maintenance of their personal and political rights.’ (Journey-
cake v. Cherokee Nation, 28 C. Cls. Ri, 28r, 317.)

“Since those words were written a hopeless development has
taken place in the affairs of this people. It has been with them
as it has been with other nations—as it has been with families
and individuals—to rise in the times of their tribulation, but to
sink under the enervating blessings of prosperity.”

24.

This should not be deplored by any party, as it is for the
betterment of the Indians, and a complete evolution from their
former condition. After the lapse of more than four hundred
years, this unassimilative people are to take their places as citi-
zens of this great Republic. The Court says further: —

“In this condition of affairs the court must regard the Chero-
kee Nation as in a condition somewhat analogous to that of a
trustee or receiver who has become insolvent: that is to say,
aS a person which should not be intrusted with the receipt and
distribution of the moneys belonging to other persons.

“The persons to whom distribution of this fund of $1,11I,-
284.70 with accrued interest would be made if they were now
living would be the communal owners of the Cherokee lands
east of the Mississippi. Bv the tripartite treaty of 1846 the
western and the eastern Cherokees were placed on the same
footing with regard to all lands east.of the Mississippi and with
regard to the funds derived from them. It follows, necessarily,
that each and all of the present owners, whether on the east or




30

the west of the Mississippi, and whether the descendants of
eastern or western Cherokees, have the same individual interest
in the fund and will be entitled to like amount per capita.”

25. Take Issue With the Court.

It is at this point that we take issue with the court below.
‘The reasoning is good as to communal ownership, the treaty of

1846, etc., and was undoubtedly true and fair at the date of the

treaty and up to the time when the Western Cherokees received

their pro rata of the fund, and gave their receipts therefor. We
cannot now see, after this payment to the Western Cherokees,
or Old Settlers, and after they have kept all of the western
lands and proceeds of sale of the Oklahoma Strip for their own
use and benefit, that either the Nation, the Western Cherokees,
or their attorneys should participate in the balance of this last
distribution of communal property belonging to the Eastern
and Emigrant Cherokees, as their share.

7 26.

If, as the court states, the Nation as such, has not status
enough, to be intrusted with the distribution of this money,
why should their attorneys be permitted to collect the per cent.
which the counsel for the Eastern Cherokees have so honestly
earned in this cause by securing the legislation of the two
special acts, and other matters that have sent this claim to oO the
court for adjudication, through which thev have carried it, and
have finally brought it here on appeal, and thus deprive them
of their fee, or compel the Cherokees to pay a double fee out
of the small stipend that will form their pro rata, simply be-
cause the Cherokees asked and the United States agreed that
all unsettled accounts between the Government and the Chero-
kees under any of the treaties enumerated should be adjusted,
and that if it was found that the GOvErnEeS owed them any-
thing it should be promptly paid.




31

27. The Liability of the Government to Pay the Award.

I feel obliged to use this term because to me, notwithstand-
ing the protest of the Government counsel, and the words o1
the court, it does not mean anything else, and. was “made in
accordance with the provisions and the requirements of the
submission.” . . | er yi ae

‘The Attorney-General says with regard to the Slade-Bender
Report, that it is the work of mere clerks—that they were with-
out legal authority, or legal ability to draw any conclusions
about this matter, although they were selected by the Secretary
of the Interior under the authority of an Act of Congress, not
only on account of their ability as expert accountants, but of
account of their knowledge of Cherokee Indian affairs, and be-
cause they were dealing exclusively with such matters. He
denies that it is an award but reluctantly admits that it may.
be an account stated. That Slade and Bender, if they could do.
nothing else could make up a correct account. We believe it
to be an award as binding as the judgment of a court; and as.
a part payment for the Oklahoma Strip embodied in the so-
called “agreement,” which the Government ratified by paying
over to the Cherokee Nation the $8,500,000, promised at thé
same time, and the taking possession of the Oklahoma Strip ;
thus pledging the faith of the United States to complete the
whole agreement, and abide by the decision of the referees. .

Justice Weldon in commenting on this aspect of the case
states: (See opinion of the Court.) ena nM

“The consideration therefore consist of different elements
of inducements, and in law those elements constitute and form
the basis upon which the agreement rests, and none can be elim-
eee without the destruction of the entire force of the agree-

“The consideration though in parts and sections as a unit,
and to disturb or eliminate one element is to destroy the whole;

he consideration is the basis of the contract, and without its






82

preservation as a whole the contract falls.

“The court must therefore assume that without all of the
considerations the Cherokee Nation would not have released to
the United States a district of couritry eee enough to be one
of the States of the Union.” |

No person has questioned the accuracy of the accounting.
The Cherokee Nation accepted it on behalf of the Cherokee
people; the Secretary of the Interior accepted it on behalf of
the Governmerit (see lefter of Hoke Smith, Jan. 7, 1895) arid
again on the call of the Eastern and Emigrant Cherokees No.
23,212, in the Court of Claims, May 15, 1905, states:

28. Report of Secretary of Interior.
Permit me to report:
“An examination of the records of this office has been made
as to whether they contained any documents or letters which

would throw any additional light on the questions involved in

the suit above in the Court of Claims, and it has been ascertain-
ed that the records of this office have been thoroughly searched
heretofore, and all matters of record or otherwise, in this office
which would in any wise tend to support the contention of
either party have already been incorporated in the official re-
ports which have hitherto been published by Messrs Slade and
Bender which culminated in their well known report, every

fetter and document in this office were carefully scrutinized,

and. were partially the basis of that report.* * * There ap-

pears to be nothing left except. questions of. law which are

peculiarly in the province of the Treasury Department

29.

Statement. TREASURY DEPARTMENT.
Office of Auditor for the Interior Department.
Washington, D. C., March, 19, 1903.
The Comptroller. of the Treasury.

Str: IT return herewith the request of the Hon. L. A. Pradt,

Src ct amet
Assistant Attorney-General, for information in the case of the
Cherokee Nation vs. The United States, in the Court of Claims,
No. 23,199, referred to this Office March 18, 1903, for report,
with the following information:

The Act of March 3, 1893 (27 Stat. 643) appropriated
$5,000 to enable the Commissioner of Indian Affairs under the
direction of the Secretary of the Interior, to employ expert _
persons to render a complete account of moneys due the Chero-
kee Nation. Said account was rendered by Messrs. Jas. A.
Slade and Joseph T. Bender, April 28, 1894, and was trans-
mitted to the Speaker of the House of Representatives by the
Secretary of the Interior, Jan. 7, 1895. See Ex. Doc. 182,
53rd Cong. 3rd sess.

It is believed that said account embodies all of the informa-
tion touching the above entitled cause, that can be obtained

from the files of this office. Respectfully,
(Signed) R. A. PERSON,
Auditor.

The United States had the money, the books, and the vouch-
ers, and employed their own accountants, who on April 12,
1894. declared that the United States had improperly taken
from the Five Million Fund, an interest bearing fund in the
hands of the Government, $1,111,284.70, and that this amount
was due to them, together with interest at 5 per cent. per annum
from June 12, 1838 to date of payment. The Court of Claims
repeated this in its Findings May 2, 1902, and rendered a
Judgment for that amount on May 18, 1905.

30. Liability for the Interest.

. This is a case in which the principal and interest seem to be
inseparably connected, because it is provided for in the Treaties
of 1835-6 and 1846. See also report of Senate Committee.
“The treaty of 1846 expressly pledged to the Cherokees a
fair and just settlement of the moneys due them under the
treaty of 1835, and that only sums properly chargeable against
them should be entered as a charge against the trust fund.






®)
et

Notwithstanding this agreement to make a fair and just settle-
ment, which was obligatory upon the United States, independ-
ently of the treaty of 1846, the accounting officers of the Treas-
ury did in fact take from the $5,000,000 trust fund, for the ex-
penses of:removal, the sum of $1,111,284.70. This sum should
have been found due to the Chérokees when the settlement was
made with them in 1851, and ‘should have been paid to them
with interest at 5 per cent. per annum 1 from June 12, 1838, until
paid.

“Interest was found due the Cherokees on this sum by the
Interior Department in its award of April 28, 1894, for the fol-
lowing reasons: First, that this fund was taken from the trust
fund, which, under the general statute, bore interest at 5 per
cent.: second, because by the eleventh article of the treaty of
1846 the United States agreed to leave the question of interest
to the decision of the United States Senate, and the Senate of
the United States, on the 5th of September, 1850, acting as
umpire, passed the following resolution :

"Re solved. ‘That it is the sense of the Senate that interest at
the rate of sper centum should be allowed upon the sums

found die to the “Eastern and Western Cherokees, respectively,
from the 12th day of June, 1838, until paid.”

“Congress ratified, this decision. of the Senate of the United.
States in various acts, to wit.: On September 30, 1850, in
making settlement with the Eastern Cherokees on that date
(9g Stat. L., 556); on ‘September 30, 1850, in an appropriation
to the Western Cherokees (9 Stat..Is., 556); on February 27,
1&51, in an appropriation to the Eastern Cherokees (9 Stat. L.,
e72): on February 27, 1851, in making the appropriation to the
Western Cherokees (9 Stat L., 572); on August 24, 1894, in
making the appropriation to the Western Cherokees (28 Stat.
L.., 451); on March 3, 1809, in making the appropriation to the
Western Cherokees (30 Stat. L., 1235). The Supreme Court
of the United States had occasion to pass upon the scope of the








30

Senate resolution of September 5, 1850, in regard to interest, in
the case of the Western Cherokees against the United States.
The: COUR. Sai te? | iii

“By the second resolution adopted by the Senate, as umpire,
September 5, 1850, it was decided that interest should be al-
lowed, at the rate of five per centum per annum upon the sum
found due the Western Cherokees, from June 12, 1838, until
paid.” i |
The Attorney-General, in dealing with matters of interest in
this case, states as follows in part:

31. The Attorney-General.

“The claim for interest in this action, which amounts to about
three and one-third times the principal, or the sum of $3,700,-
000, in round numbers, is based upon the authority of the
United States v. Old Settlers, 148 U. S., 427. The decision
relied upon is based upon the resolution of the United States
Senate as umpire, adopted September s, 1850, deciding that in-
terest should be allowed at the rate of 5 per cent per annum on
the sums found due the Eastern and the Western Cherokees,
respectively, from June 12, 1838, until paid. ‘This resolution
was made pursuant to Article II of the Treaty of 1846, which
provided for leaving to the Senate “the question whether the
Cherokees shall be allowed interest on whatever sum may be
found due the Nation and from what date and at what rate per
annum.” ‘The method of ascertaining the sum due the Nation
thus referred to is prescribed in section Q of the same treaty,
wherein the United States “agree to make a fair and just set-
tlement of all moneys due to the Cherokees.” * * * |



“And thereupon, having determined the actual amount due
the Western Cherokees which should have been found in the
accounting under consideration, the court went on to say, on
the question of interest : | : ee




36

“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.) % ee

“In view of the terms of the jurisdictional act and the con-
clusion reached in reference to the amount due, it appears to
us that the decision of the Senate in respect of interest is con-
trolling.” (CPawe 47g. 8% ©

From this point the Attorney-General dissents.

32. Parties Agreed.

te

The United States has not appealed from the amount of the
Findin; gs of the court.

But so far as appears the United States hag rot appealed
from the judgment of the court in either the amount of the
principal or the interest, so that an elaborate discussion on that
ground is not necessary. We are agreed that $1,111,274.70 is
due to the Cherokees with interest from June 12, 1838, or the
time when the five million fund was depleted.

‘The Eastern Cherokees and the Eastern and Emigrant Cher-
okees, and the United States are agreed that this fund shall be
paid in accordance with the oth article of the Sixth Treaty of
Washington or the Treaty of August 17, 1846, the latter por-
tion of which reads as follows:

“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 alf
those individuals, heads of families, or their legal representa-
tives, entitled to receive the same under the Treaty of 183<,




3d
and the supplement thereto.”

34
“Art. 10. It is expressly agreed that nothing in the fore-
going treaty contained shall be so construed as in any manner
to take away or abridge any rights or claims which the Chero-
kees, now residing in States east of the Mississippi River had,
or may have, under the Treaty of 1835, or the supplement
thereto.” ia)
“Art. 12, Treaty of 1835. Those individuals and families
of the Cherokee Nation that are averse to a removal to the
Cherokee country west of the Mississippi, and are desirious to
become citizens of the States where they reside, and stich as
are qualified to take care of themselves and their property, shall
be entitled to receive their due portion of all the personal bene-
fits accruing under. this treaty for their claims, improvements,
and per capita, as soon as an appropriation is made for this
treaty. |

34-

“Such heads of Cherokee families as are desirious to reside
within the States of North Carolina, Tennessee, and Alabama,
subject to the laws of the same. and who are qualificd or cal-
culated to become useful citizens, shall be entitled on tre cer-
tificate of the commissioners to a pre-emption right to one-
quarter section at the minimum Congress price. etc., etc.” The
Cherokees were not allowed at that time to pre-empt lands in
Georgia, whose State Government and individual citizens had
been very influential in driving the Cherokees out of the State,
from whom, by the Treaty of New Echota thev had received

a laige tract of valuable land, located in north Georgia. Not-

withstanding this, there are still many Cherckees and their de-
scendants in north Georgia, az we shall show.

eee




38
35. Cannot be Relieved from its Obligation.

Justice Nott in his opinion says:

“When the account was thus received by the Cherokee Na-
tion (May 21, 1894’) the ‘twelve ‘months’ of the agreement,
within which the Nation’ must consider‘it and enter suit against
the other’ party in’the Court of Claims , began to run; and with
the Nation’s accéptance of the account (December 1, 1894),
the session of Congress at which an appropriation should be
made became fixed and certain. The Secretary did not recall
the account; the United States never rendered another: and
the utmost authority: which Congress could have exercised, if
any, was, at the same session, or certainly within the prescribed
‘twelve months,’ to have directed the Secretary to withdraw the
account and notify the Cherokee Nation that another would be
rendered. The action of the Secretary of the Interior, com-
bined with the inaction of Congress to direct anything to the
contrary, makes this provision of the agreement final and con-
clusive. The Cherokee Nation has parted with the land, has
lost the time within which it might have appealed to the courts,
and has lost the right to bring the items which it regards as in-
correctly or unjustly disallowed to judicial arbitrament:; and
the United States are placed in the position of having broken
and evaded the letter and spirit of their agreement. me

It would therefore seem that the United States Rare, be
either legally or equitably relieved from its obligation to the
Cherokee people unless this fund is distributed individually and
per capita to the families or. persons entitled to receive it,
whether in North Carolina, Georgia, Alabama, or Tennessee ;
or in. Missouri, Arkansas, or the Indian Territory, or elscwiicne
the same being those persons who have not yet received their
per capita. ‘This idea was also suggested by Mr. Gorman, at-
torney for the United States, in his first Brief to the Court of

Claims. To carry out this idea the court below bery properly


39
NAR?

suggests that new rolls be made as follows: p. 12, of Opinion
of the Court, March 20, 'tgos beeen

“That the amount of $1,111,284.70, together with interest
thereon from June 12, 1838, to a day whien the Secretary of the
Interior shall be ready to make payments, as hereinafter pro-
vided, nevertheless be paidi directly to communal owners being
Cherokees by blood, whether on the eastern or western side of
the Mississippi River. And to that end the Secretary of the
Interior is authorized to appoint one or more commissioners to
proceed to the Cherokee country afd to the country of the Cher-
okees residing east of the Mississippi to. ascertain and report
to the Secretary the facts necessary. for the. formation of.,rolls
of all Cherokees by blood, the expenses of making out and pre-
paring such rolls to be a charge upon and paid out of the fund
awarded by the decree. Be ee

“The decree will also provide for the payment of the fund
to the parties per capita, the charge of distribution likewise to

be a charge upon the fund.”

37. Who are the Eastern and Emigrant Cherokees.

At the date of the Treaty of 1835-62, 1838, when the subject
matter of this suit originated the Cherokees East were the Na-
tion, and were long known as the Eastern Cherokee Nation.

At the date of the Treaty of New Echota, Dec. 29, 1835,
several thousand Cherokees had already removed to what is
now known as the Indian Territory. To distingufsh them from
the Cherokees who remained in the Eastern States they were
commonly called the Western Cherokees. ‘After the removal
of the Cherokee Nation to the Indian Territory, this name was
no longer distinctive, and those Cherokees who had been known
as Western Cherokees were thereafter known as “Old Set-

tlers.”’
The Cherokees who removed to the Indian Territory after

the signing of the Treaty of Dec. 29, 1835, as well as those who
remained permanently east of the Mississippi, were thereafter




40

known as Eastern Cherokees, and the descendants of the latter
who removed, as Eastern or Emigrant Cherokees, or as form-

ing one body with those who remained east.

38. The Number.

Of the last named who form the third division of this tripar-
tate suit No. 349, there are now 6,000 Cherokees whose family
powers of attorney, ages, and genealogy are filed in this suit,
and who claim to represent fully one-fourth of that portion of
the Cherokee people known as Eastern Cherokees, and among
whom the fund in dispute in this cause should be divided pro
rata. The special legislation by which these cases were per-
mitted to be brought in the Court of Claims was secured by the
Eastern Cherokees. It is their suit.

Peele, J., in the Opinion of the Court below, of March 20,
1905, p. 27, states as follows:

“Under the amended section the Fastern Cherokees appeared
by counsel and filed their petition, claiming that they were en-
titled to the amount stated in the account so rendered under the
direction of the Secretary of the Interior for the cost of their
removal to the Indian Territory, with interest thereon at 5 per
centum from June 12, 1838. Still another class, known as
astern and Emigrant Cherokees, appeared by counsel and
filed their petition, in which they claimed one-fourth of the

_ amount stated as the cost of removal of the Eastern Cherokees

to the Indian Territory. Therefore, the Cherokee Nation, as
well as the Eastern and all other Cherokees claiming any inter-
est in the subject-matter of the litigation, appear to be in court
as required by the jurisdictional act.”

39. To Whom the Item No. 2 of .the Award Belongs.

As stated, it belongs exclusively to the Eastern and to the
Eastern and Emigrant Cherokees. The Five Million Fund


4

from which the item of $1,111,284.70 was taken was created
by the sale of the lands of the Eastern Cherokees in North
Carolina, Georgia, Alabama, and eastern Teéiinessee: It was
made a trust fund, an interest bearing fund at’5 per cent per
annum in the hands of the Government. The treaty states
who thése people are. They are those Cherokees whose names
or those of whose ancestors are on the roll of 1835-6-8, or the
Treaty of 1846, “the Cherokee Nation East according tothe
census just completed, and such Cherokees as have moved west
since June, 1833, who are entitled by the terms of their enroll-
ment and removal to all the benefits resulting from the final
treaty between the United States and the Cherokees East.”

40. Do Not Wish it Paid to the Cherokee Nation.

It is the very urgent desire of the Eastern and Emigrant
Cherokees that this money be not paid to the Cherokee Nation,
even as a trustee, for other reasons than those named by the
court; for in that event, not a dollar of it would be paid to the
Cherokees in North Carolina, north Georgia, northern Ala-
bama and eastern Tennessee, nor in Missouri and Arkansas,
nor to a large number of Eastern Cherokees in the Indian Ter-
ritory, of undoubted Cherokee blood who have not been en-
rolled by the Commission of the Five Civilized Tribes, and
admitted to citizenship, although their applications have been
duly filed for enrollment, are of Cherokee blood, and proofs
furnished, on account of objections filed by the principal Chief
and his subordinates, or some arbitrary provision of the coun-
cil who have found that these persons did not remove to the
Territory in due time, or have not permanently abided there,
or have found occupation outside of the Territory, and in this.
way many families have been divided by some of them secur-
ing enrollment, while other members have been denied it.










Rida SC NE a Nw.

COU



42

“In the distribistidn of the $8, 500, 000 for the sale of the Out-

let, or Oklahoma strip, the Eastern and Emigrant Cherokees

received nothing. In the distribution of the tribal land in the
Indian Territory, the Eastern and Emigrant Cherokees whom
I 1epresent, as a rule will receive nothing, because they are not
cn the enrollment. In the distribution of the money from
former sales of Western lands they received nothing, although
a suit was brought by the Eastern or North Carolina Chero-
kees in the Court of Claims vs. the Cherokee Nation of Indians
in March 7, 1883, known as No. 13,606, to recover their share
tn which the court decided that they could not recover because
they had not removed west, and taken up their homes with the
Nation, and therefore had no common rights, but even that pro-
cedure has failed to give them citizenship | since it became known
that the lands in the Indian Territory were to be distributed.

42

- But this fund belongs to them, exclusively as we think, by
all the laws of descent known to our jurisprudence. They are
individual citizens of this great Republic, who have adopted in
the words of the law, “the habits of civilized life, and are en-
titled to all of the rights, privileges, and immunities of citizen-
ship; without affecting their right to tribal yr See
Act of pesca 1, 1901. |

43.

“Justice Nott, who listened with infinite patience and interest.
to all of the manifold details of the various branches of this
case, was right in calling it a suit in Equity (and in this he was
seconded by Justices Weldon and Peele), and, by including all
of the parties in interest in this decree, which must be forever
memorable, whatever may be the action of this court.
43

44. Eastern and Emigrant Cherokees Poor.

The Eastern and Emigrant Cherokees are poor, the large
majority of them are without land. About 2,000 of them are
located on what is known as the Qualia Boundary in the north-
west portion of North Carolina, where they have a communal
interest, which is now in the hands of, and controlled by a cor-
poration, by a deed from the Government. If any Cherokee
moves off from this reservation and ventures to return, he is
called a trespasser. A\ number of such trespassers have ap-
pealed to me to protect their interest, but they have no redress
except to be recognized by the corporation.

The distribution of this one-fourth interest pro rata by the
Secretary of the Interior into these poor homes will carry light,
hope and comfort to many a cheerless hearthstone. They area
frugal and industrious people.

45. The People of the Western Nation

are rich. Their fathers, mothers and every child born. before
September, 1902, have their allotment of land. They had their
share of the “Strip” money. They will participate in the tribal
funds still in the hands of the Government. Why should they
take this sum out of our hands for distribution vy the Nation
simply because the so-called agreement was made with the Na-
tion? It had to be made with somebody. The Government
wanted the land, and it had to get hold of somebody who had
a corporate existence and a legal entity to make the transfer,
and it took the so-called Cherokee Nation and we must abide
by it. It is probably the last claim which the Eastern and Emi-
grant Cherokees will have against the United States.

46. Have Abolished the Nation.

Having wiped out the Cherokee Strip that had been given to
the Cherokees as a perpetual outlet to the sea, which was to en-


|



+4

dure to the end of time, ‘Congress proceded to wipe out the
‘Cherokee Nation, and has from time to time, and from year to
year limited its duties—enrasculated it—giving to the Indians

increased individual powers, until the Commission of the Five

‘Civilized Tribes announced that it would complete the allot-

ments by’ June 30, 1905. I do not think that it has yet been
fully: completed, but whenever this is done, the supervisory
duties of the so-called Nation will expire. They have them-

selves in National Council assembled agreed to a dissolution of

their tribal powers on March 4, 1906. That time will arrive
hefore the new rolls are made, and the money contemplated in

this suit will be paid. We have not for obvious reasons, chos-

en the. Cherokee Nation as our trustee, but we do not paiact to
the Secretary of the Interior. | |

47. The Parties Claiming.

As to the parties claiming in Suit No. 347, the Eastern

Cherokees. we have no controversy. We are working practi-
cally for the same end, and pretty much the same way, but we
do not wish the court to appropriate to them the entire fund,

c ontained i in Item 2 of the award, or to control the distribution
of the fund which should properly belong to the 6,000 Eastern

-and Emigrant Cherokees by actual count representeed i in cause

349, or the appellees.

48. The Probable number of Eastern Cherokees,

We are not able to sum up by any. census found, or any re-
liable estimate made, a larger number of Eastern. Cherokees
who would be entitled to their pro rata. of this fund than

22,500 at the most, including our own representation.

49.
There are two points that should be approximately if not
definitely settled by the court, viz. :
45

1. The probable number of persons entitled to participate in
the fund? .

2. The degree of consanguinity necessary for enrollment?

3. Whether the money shall be paid to individuals or to fam-
ilies? It would be a difficult thing to attempt to ‘pay a large
number of minor children.

50. Prayer.

Your complainants, therefore, request upon the facts
shown, as follows: That if the court should determine that the »
Cherokee Nation are, as they claim, the proper custodians of
this fund, that then the proportionate share of the Eastern
and Emigrant Cherokees to the fund be set aside for them, in-
dependently to be distributed by the Secretary of the Interior,
in accordance with their numbers. |

‘But if your Honors shall decide, as we expect you will, that
the principal part of the fund known as Item No. 2, belongs to»
the Eastern Cherokees, and the Eastern and Emigrant Chero-
kees, then we ask and expect that one-fourth part, in propor-
tion to our numbers, or $277,821.18 1-2 of the whole sum, with
interest thereon from June 12, 1838, be set apart for the East-
ern and Emigrant Cherokees, as their distributive share.

Betva A. LocKwoop.
Attorney for Eastern and Emigrant Cherokees.