Statement of the Case. Article 10 related to Cherokees still residing east of the Mississippi River. Articles 11 and 12 were as follows: "ARTICLE 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 100 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. "ARTICLE 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." The treaty was ratified by the Senate, August 8, 1846, after amendments to the fifth article, (which is given above as amended,) and striking out the twelfth article. The amend VOL. CXLVIII-29 Statement of the Case. ments to the treaty by the Senate were agreed to by the representatives of the several parties of Indians, August 13, 1846. A joint resolution of Congress was approved August 7, 1848, 9 Stat. 339, as follows: "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, eighteen hundred and forty-six, between the United States and said Indians, and that they report the same to the next session of Congress." On the 8th of August, 1850, the Senate Committee on Indian Affairs made a report, (Sen. Rep. 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." 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. The account as stated in the Senate report was as follows: Statement of the Case. "This fund, provided by the treaty of 1835, consisted of.... $5,600,000 00 From which are to be deducted, under the treaty of 1846, (4th article,) the sums chargeable under the 15th arti- of the accounting officers, will stand thus: For improvements For ferries..... $1,540,572 27 159,572 12 Making in the aggregate the sum of.... Which, being deducted from the treaty fund of $5,600,000, leaves the residuum, contemplated by the 4th article of the treaty of 1846, of.. 4,028,653 45 $1,571,346 55" of which amount one-third was to be allowed to the Western Cherokees for their 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, (Sen. Journ. 1st Sess. 31st Cong. 601): "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 Statement of the Case. 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. "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." The committee gave their reasons for the first resolution at length. They 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 of June, 1838, Statement of the Case. for $611,105.55." This left $189,422.76 to be made up in order to cover the entire subsistence. The second section of the act of June 12, 1838, read as follows: "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." And of this amount the committee found that only $611,105.55 had been expended for the one year's subsistence. 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 Stat. 544, 556, c. 91, contained the following: "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 fortysix, 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. |