^~1 ■ v-^. o ,.^ .i...:.o. .^^v>/ .o.^" -^^ -^<^ V o V 'Z^:, r/^: ,v V >. ^MW^: \' %''. -?;•' ^^;^^t. K/J^A> ^^ '"^c^ ■:^: ^ ' ^, ' ,/■ H ^ * "^ JT o^ » - r^ J3 , -f'. ^^^ .^AIC^ ^^° -^b 'm>^C^' r^^. O. * o ^: •^. •^^0^ <". 'i\^ 4 C^ , <^ ,-Jv'' .•.'.^% ■> C°' 'b V' ^0 0^ °^.;^ f"--, .■#«?.■ s-'*. ,-1°, ^. 0' -t- O *■«,-• .0' .V'^' to ,0' 'Xr&, ^^ ^^•^Sv^.'" ^. o ';^ -^''*»i- i-'^'" A^ <- y. 4 o --/ o^ ►/, , •■ ,0- '\^ o'^'' ... '-'<'- ^^-^^ N^" ^- /-^-IS^^ /% ■•:^- .^-^ vliS'' ^ .-^ ,0- 0^ s ^^. V *^- ' r'is -^' .0. '^'i ARGUxMENT o B Y COL. S. C. STAMBAUGH. COUNSEL FOR PLAINTIFF: LIVERED 0.\ THE SEVENTH ^•0VE>1BER, 1S43, BEFORE THE BOARD OF COMMISSIONERS. UNDER THE CHEROKEE TREATY OF IS35--36, IN THE CASE OF J K, ROGERS, A CHEROKEt:, AGAEVST THE UNITED STATES, FOk SPOLIATIONS COMMITTED BY THE STATE OF GEORGIA IN DIS- POSSESSING HIM OF A GOLD-MINK. WASHINGTON: BLAIR AND RIVES. PRINTERS. 1S43. • PREFACE. In the publication of this Argument, the claimants under the treaty discharge a duty to themselves; gratify the expressed wish of intelligent citizens; and, are persuaded, perform an acceptable service to tlio public. The sirfjjects discussed are of deep interest to the parties — the Indians on one side, and the people of the United States, acting through the Government, on the other; every citizen, therefore, should desire to be informtnl and understand, in order to the award of justice. But it is a misfortune tu the complainants that the sources of information are accessible to few. This argu- ment is given to the public, to correct measurably that evil. Indian rights are here examined upon principles incontrovertible, because recognised as universal law by the great jurists of England and America. The statutory enactments and the judicial decisions of the United States, applicable to the subject, arc given with perspicuity and in fullness of detail. A confidence is felt that the reader of this argument will rise from its perusal with increased knowledge, more just sentiments, and with a conviction of its ability. Competent judges pronounce it an evidence of much research, of a mind clear in method and logical in conclusions; entitling the author to a meed of praise, and a claim for distinction, in this department of legal knowledge, among the first lawyers of the country. Washington, Nov. 26, 1843. .^.^ -i-*!- A K G U M E N T la the case of Johnson K. Rogers, a Cherokee, who has submitted a claim against the United Slates fur damages, arising out of spulUuioiis com- mitted upon his property by the Siaie and citizens of Georgia, in forcibly ejecting liira from posses- sion of a goldmine in the year 1830, and preventing him from retaking possession of the same, by vir- tue of a bill of injunction, I beg leave to offer the following remarks for the consideration of this honorable board: This claim is presented under the 10 h article of the treaty of 1835; the latter clause of w hich reads as ft)llows: "The sum of three hundred thousand dollars is hereby set apart to pay and liquidate the just claims ot the Cherokees upon the United Slates for spoliations ut every kind that have not been already saii^fied under farmer treaties." Spoliation and depredation are synonymous in their meaning. They are defined lo be, "an act of plundering; a robbery; waste; consumption; a ta- king away, by any act of violence, the properly of another." The testimony adduced, I ajjprehend, clearly and ineonteslably proves that the prop»-'rty of the claimant, of which he was legally and peaceably in pos^ession in the year 1830, was ille- gally taken from him, and exhibits an "act of plundeiing" which constuutes a strong case of spoliation contemplated by the 'Jih, 10th and iGih articles of the treaty. If the Board, upon a care- ful examination of the testimony already adduced, and the law bearing upon the ca>e, which 1 shall now cite, entertain this opinion, we can claim an award for the full amount of which we have been despoilt'd; as it is clearly a claim brought wiiiiin your exclusive jurisdiction by the 17th article ol the treaty, which makes it your duly to "examine and adjudicate all claims arising under or pro- vided lor" in the several articles of that in>;ru- ment. The first points, then, to be established, are the occupanai of the land, upon wkich this goldmine was located, by the Cherokee tiibe of Indians in the year 1830, and dvring the period for which Mr. Rogers claims for being dispossessed; the nature of the title under which they held their lands; that the mine- rals in the bowels of tlie earth were a portion of the same property and held by the same tenure, and that no Slate of this Union cmdd legally dtvest them of these lands; and that iJwir title to them could not be extinguished except by the treaty or conven- tion entered into according to law. In the first place, I will call the attention of the Board to the able opinion of Judge Chryton of Georijia, delivered in the case of that State against Cana-too, a Cherokee Indian, "committed to jail upon a charge of digging gold in that part of the Cherokee nation not yet ceded," and who was brought before the court by wni ol habeas corjms in the year 1832, and discharged Thi> opinion is now submitted for the considera- tion ot the Board; and upon the law and argument therein set forth, I might with safety rest for the establishment of the points which 1 have made, and show that the title of occupancy is the oldest, and throws as much security around the original occu- pant as any known to Christendom. I will, how- ever, in my own humble manner, bring before you the treaties and the law upon which we base our claim; and then ask the judgment of this Board on the imporlant ijuesiion at is>ue. I will, in the outset, assert one universal princi- ple, which recognises but two ways of acquiring the title from Indians — that is, by '^force or jm.r- chase." The first has never been resorted to by the British or American Governments, since the first discovery of this country. Although it may have been indirectly threatened by the authorities of a Stale, the overt act was not committed; and the al- ternative mode — thai of purchase, adojited first by the King of England — has never been departed from. The first treaty concluded between the United States and the Cherokee Indians was in the year 1785 — two years after we had secund our independence as a separate nation. That treaty recognises the Cherokee title to their lands, in the same manner that it was recognised by the British Governmeni; and the intercourse law, enacted by Congress m the year 1802, prescribes the mode by which they may be purchased. This law is in- corporated in the intercourse act of 1834, now ex- tant, (see scc'ion 12,) and enacts as follows: "That no purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless ihe same be made bv treaty, or convention, entered into pursuant to the Constitution." [See '2d clause, 2d article of Ihe Constitution ] Another clause of the same section of the lav/ makes it a penal ofi>nce for any per- son, not employed under the authority of the Uni- ted Stales, to attempt to negoliale such treaties; and, apparently for the purpose of prohibiting the assumption of improper power by any State, the same section is made to contain the following pro- viso : "That V shall be lawful for the agent or agents of any Stale, who may be present at any treaty held with Indians, under the authority of the T'nited States, in the fjresence and with the apf)robation of the commissioners of the United States appointed to hold the same, to propose to nnd adjust with the Indians the compensation to be made for their claim lo lands within such State, which shall be extinaruished by treaty." The 11th section of the same act, which is also adopted from the law of 1802, provides as follows: "That, if any person shall make a selilen.ent on any lands belonging, secured, or granted by treaty with the United Stales, to any Indian tribe, or shall survey, or attempt to survey, such lands, or desig- nate any of the boundaries, by marking trees, or otherwise, such offender shall forfeit and pay the sum of one thousand doTlars." I will likewise call the allenlion of ihe board to the 16th section of the same law, which enacis: "That^vhele, in the commission by a whiti" jierson of any crime, offence, or mindameanur , withm the Indian country, the pruperty of any friendly Indian is taken, injured, or didroycd, l.!ie person ci-nvicied of said oftence shall be sentenced to pay to such friendly Indian, to whom the property may belons, or whose peison may be injured, a sum equal to txoice the just value of the propeny so laken, in- jured, or destroyed; and, it such offender shall be unable to pay a sum at least equal to the jusi value or amount, whatever such payment shall tall .short of the same -hall be paid out of the treasury of the United Stales." The 2"2d --ecti.m of the same act provides: "That, in all trials about the right of property, in which an ladiayi may be a party on one side, and a ivhile person on the other, the burden of proof shall rest upon the wliite person, whenever the Indian shall make out a presumption of title in himself, from the fact of previous ownership." The 23d section of the same act, having refer- ence to the provisions I have cited, makes ii law- ful for the President of the United S:ates to employ military force to remove all persons found in the Indian country, in violation of this act; and the Constitution enjoins it upon him, as a duty, to cause all laws 10 be I'auhfully executed. I have quoted thus copiously from the intercourse law, for the purpose of presenting, in one view, ihi- manifest determination of the law-makers at. that time to protect the Indians in their righis, so far as legislative enactment could protect them. Ii was an ordmance adopted early in our national existence, when our relations with the Indians, tonnd in the occupancy of a large portion ol the country, were new and fresh, and the intentions of our Govern- ment and people towards thein were pure and dis- interested. The Indian title was then held sacred; and the mod.e was prescribed bv which alone it could be exiinsuished. The Constitution of the United States gives the President and Senate the power of negotiating treaties vnlh Indian tribes, as with othernaiion<; and, in pursuance of that clause. Congress passed the act of 1802, providing for the "purchase of their lands," and, at ihe same time, assumed a guardianship over their alfairs ijeneral- ly, not atilhorized by the Constitution; bu', with re- spect to the Cherokees, by virtue of a right conceded by the 9th article of the treaty of Hopewell, con- cluded in the year 1785, which is m the following words: "For the 6«?je^i!and c(;??(/(?r< of the Indians, and for the prevention ofiiijuries or oppressions on the part of the citizens or Indians, the CoPCfess of the United States shall have the sole and ex- clusive ri^hl of re^iulatins: the trade wiih the In- dians, and mauaginu all their affairs in such man- ner as they ;hink proper." Here the relationship of irwrw^/rt/f and 7/v/?y/ ori- ginated between the United States andtlip Cherokee nation. It is a concession made by the weak and help- less to the strong nnd powfTtuI; by the unuitored trembling cliild of thf fote-t, to the yi'Ung Hercules who had just grappled with and oveithrown the co- lossal power of England, and now stood erect in ail his pride and glory, fresh from the conflict. SfV- enteen years after the ratification of the treaty here referred to, the intercourse law of 1802 was enact- ed; and the portion I have quoted has remained on your statute books, as the supreme law of the land, ever since. I will reserve, for the present, the comments which I have to make upon the faithful execu- tion of this law by the United Slates! whether it has been made to conduce to the "benefit and comfort" of the Indians, and protect them from ^'injuries and oppressions," solemnly promi.sed by the treaty of Hopewell; and will proceed to show, by existing treaty stipulations, by universal custom, and by piinciples governing ihelaw of nations, (always held sacred,) that the Cherokees were the lau-ful on-iicrs of ihe /and of which they were in the oc- cupancy at the time the present claimant was eject- ed from the possession of his property on Pigeon Roost Bfai:ch, for which he uow claims indemnity. If 1 succeed in establishing this ownership satisfac- torily to the Board, I can apprehend no difficulty in obtaining an award for the full amount of the property taken from his possession in violation of law. The volume of Indian treaties, published by the War Department, contains fourteen treaties conclu- ded between the United States and the Cherokee nation, east of the Mississippi river, prior lo the year 1835; all of which acknowledge the validity of the title held by the Indians to the lands then in their occupancy. The first treaty negotiated wiih the Cherokees, as 1 have already stated, was concluded at Hopewell, on theKeowee, in the year 1785 — two years afier peace was concluded between this county and England. (See Treaty Book, page 8.) The first, second, and third articles go to es- tablish permanent peace and friendship between the contracting parties; the fi>urth anicle fixes the boundary of the Cherokee lands; and ihe fifth article provides for the prevention of any settlement being made by white people upon these lands, and fur the removal oi those who may have already made settlements. Article seven provides that, "it any citizen of the United Stales, or person under their proteciion, shall commit a robbery, or other capital crime, on any Indian, such offender or offenders shall be punished in the same manner as if the robbery, or other capital crime, had been committed on a citizen of the United States." Upon a conviction for the crime of robbery, under this article, what would be the punishment in our court.sl Why, the offender would be sen- tenced to restore the propeny laken, or pay the val- ue thereof, as set forth in the indictment". And a case in point is presented in the claim now under consideration before this board. The second treaty was concluded on the bank of the Holston, in July, 1791. (See Treaty Book, page 34.) The second article of this treaty procuresthe pledge of the Cherokees that they "will not hold any treaty with any foreign pfiwer, individual State, or wiih individuals of any State." The fourth anicle recognises, and permanently estab- lishes, the boundary lines between the United States and Cherokee nation; and provides for certain pay- ments being made to the Cherokees, in full, for lands already ceded. Article seven is in this em- phatic language: " The United States solemnly ^uaranti/ lo Ihe Cherokee nation all their lands not hereby ceded!" The remaining portion of this treaty is filled with the most so!emn assurances of protection to the tribe against all intruders; and with promises of indemnitv, should depredations be committed upon their lands or other property. The next treaty was concluded in Philadelphia, in the year 1794. (See page 39.) This treaty was intended to correct some misunderstanriingr whifh had arisen, on account of the treaty ot Holsion not being carried into execiuion, and for the purpose of more fully compensating the Cherokees for ihe lands they had relinquished lo the United Siaies by the two former treaties. The fourth treaty, which was concluded at Tellico, in the year 1798, pro- vides for the removal ol difficulties which occurred by delay, on the part of the United States, in having the C'heroiiee boundary properly defined and marked. The fourth article of this treaty cedes another portion of their lands for a valuable con- sideration; and the fifth article provides for the appointment of two commissioners — one by the United States, and the other by the Cherokee na- tion — for the purpose of nmning and marking the boundary tines. (Seepage 7H for this treaty.) The fifth ireatv wks also negotiated at Tellico, in the year 1804, "(page 108;) by which the Cherokees cede another small parcel of their lands. The sixth and seventh tieaties were concluded at the same place, in October, lb05. (See pages 121 and 1'24.) These treaties lecognise and continue in force all lormer treaties, and also cei'e am'iher portion of the Cherokee lands. In the year 18(K), the next treaty was concluded at the ciiy of Washington, (page 13"2.) Ii contains another cession ot lands to the United States, and relates to the esiablish- ment of boundary lines between the Cherokee and Chickasaw nations. The next treaty arrange- ment was negotiated in the year 1807, and is call- ed an "elucidation of the convetuiun of Washing- ton," above relerred to. (See page 135.) To the next, or tenth treaty negoiiater* with the Cherokees, I will especially solicit the attention of the Board. (Seepage 185 ) Tliis treaty is based upon an ap]ilicati(m from the executive of the Siate of Soutti Carolina to the President of the United States, to extinguish the claim of the Cheiokee nation lo thai pan of their lands which lay within the botmd- aries of that State. The Cherokees, manifesting a desire to comply with the wishes of their brothers of Carolina, made the cession lo the Stale; but it was done in the usual way — l)y /ren/.y entered in/ o between commissioners onbehall of the United States and the Cherokee nation. If the Cherokee nation had refused to make the cession, will any one pretend to say that South Carolina would have attempted to eject them from the lands by forceI The United Slates Government not only extin- guished the Indian liile by purchase, (tlie only way it could he done without violating the law and existing treaty stipulations,) but became securi- ty for the paymtnt of ihe purchase-money by the Stale of South Carolina, under the provisions of the 2d article of this treaty. Another convention was held by the same parlies, on the same day Willi the foregoing, for the purpo.se of settling some corf]ii.-tiiig interests between llie Cherokee and Creek boundaries; appoiniing commissioners for the purpose of running said boundary lines; and entering into an agreement by which the United Stales promi.'cd to indnnnify cerlain individual Cherokees f(^r losses which ihey had sustained by the march of United Siaies troops through their nation (See pi'ge I8f; ) Anoiher treaty was concluded in Sepiember, 1810, by which an additional ces.sion of land was made tiy the Cherokees, and in whifh it is agreed that the boundary line shall be again ascertained and marked by commissioners. (Page 199) In Ihe year 1817, the important treaty was negotiated between the United Stales and Chero- kee nation, by which the cppkij and t.owr.R towns of ihat nation agreed to sep. irate and become two disiinct communities — one" lo occupy ihe remain- ing country east of the Mi.ssissippi river, and the other exchanging their poriion of the lands ease, for a country west of ihat river. (Page 209.) This treaty again provides for the running ot the bound- ary lines of the ceded lands, and recognises the title of those unceded as vesting in the Cherokee nation east. The fourteenth and last treaty to which the eastern Cheroki es were a party, prior to the celebrated treaty of New Echoia, was negotiated at Ihe city of Washington, in the year jHI'l, by the lion. John C. Calhoun, Secretary of War, offi- cially authorized to act by tie President of the United Slates. (See page 205.) This treaty, orcon- veniion, stipulates for a final adju-tment of all un- setiled business under former treaties, li raiifies the cession and oilier provisidus made by the treaty of 1817; expresses the determination of the greater portion of the nation to retain possession of the country they then occupied; and, by the 5ih article, provides for permanently marking the boundary lines, wiih the solemn declaration made by the United States "that ihe leases which have been made under Ihe treaty of the 8ih July, 1817, of land lying within the portion of country reserved to the Cherokees, shall be void; and that all white people who have intruded, or may hereafter mirude, on the lands reserved for the Cherokees, shall be removed by the United States, and proceeded against according to the provisions of the act passed 30 14 8 />}/- ng is more erroneous; and this mistake has occa- ioned all the difficulty. 1 candidly own that I la- )ored under it myselt, and granted an injunction vith a view to settle the question; but when 1 came examine the subject, I found nothing to support uch an idea. On the contrary, I found everything vhich was calculated to satisfy me I was wrong. Not desiring my own views, by any means, to be :onsidered as authority, 1 shall speak, whenever I an, m the language of the law, as given to us by he best and most approved writers. Justice Kent, herefore, says: "'It is a fundamental principle in the English aw, derived from the maxims of the feudal len- jres, that the King was the original proprietor of ill the lands in the kingdom, and the true and only ource of title.— (-2 Black. Com., 51, 53, 86, 105.) In his country we have adopted the same principle, md applied it to our Republican Governmeni; and t is a settled and fundamental doctrine wiih us, hat all valid individual title to land within the Uni- ed Slates is derived from the grant of our own lo- ;al governments, or from that of the United States, )r from the Crown, or royal chartered govern- nents, established here prior to the Pievoluiion.' — 3 Kent's Com., 370, and the authorities there ci- ed.)" The title to the land, then, being in the Indian, he question is, What is landl "In its legal sig- lification," say Coke and Black.stone, "land hath m indefinite extent upwards, as well as downwards. Upwards to the sky,' is the maxim of the law; and, herefore, no man may erect any building, or the ike, to overhang another's land; and, downwards, whatever is in a direct line between the surface of my land and the centre of the earth, belongs lo the iwner of the surface, as is every day experienced in he mining countries; so that the word 'land' in- cludes not only the face of the earth, but everything ander it or over it; and therefore, if a man grants ill his lands, he grants, thereby, all his mines of netals, and other fossils, his woods, his waters, md his houses, as well as his fields and meadows. 2 Black. Com., 18.) The Legislature and Executive of Georgia ;eemed to have lost sight of all law and usage in elation to Indian rights, when they enacted laws inder which they surveyed and took possession of he Cherokee lands, and removed the occupants by vrits of injunction and attachment. They looked ipon the Indian title of occupancy as making the " herokees mere lessees of the Slate of Georgia, yhohad the power of restraining them'from injur- ng, or committing waste upon the freehold of the Stale, On this assumption of power, Judge Clay- on says: "If this be true, she can also prevent them from ;utting timber beyond what is necessary for their ibsolute use, and from doing many things which, n legal language, is called 7/;ff5^e. Working mines :omes within that definition, and is of no higher njury to the freehold than any other species of yaste. But the truth is, the Indian title of occu- )ancy assimilates itself to no principle of the Eng- ish law, which gives (he right to stay waste, as it s called. It is analogous to no estate, upon condi- ion, which involves the relation of landlord and enant, remainderman or reversioner; and these ire the only three characters who can restrain araste. It must be a particular estate, to which ;here is a definite limit, certain as to the time of ;xpiration, which will entitle the holder of the free- hold to sustain the commission of waste. We all know what the renting of land means: it does not fall under this head. It is not every reversionary interest in lands that will give the right to restrain the tenant from committing waste. It is a well known fact that ihe state, as the source of all title, has a reversionary interest in every foot of land she grants out lo her citizens; for, if they die with- out heirs and intestate, their lands revert lo the state by virtue of the escheat jaw. Now, under this remote expectant interest, no one will contend the Legislature could restrain the good people of the state from digging gold on iheir lands. The state does not hold in remainder; for remainder is 'de- fined to be an estate limUed, to take effect and be enjoyed after another state is determined. There must be a particular estate created, certain and de- terminate, as for years, for life, or in tail; and re- mainder, being a relative term, implies ihat a part has been previously disposed of, for, where the whole is conveyed at once, there cannot possibly ex- ist a remainder; but the interest granted, whatever it may be, will be an estate in possession.' (2 Blackstone's Commentaries, 1G5.) Everyone must perceive that this relation does not exist between Georgia and the Indians. 'An estate in reversion is the residue oi an estate left in the grantor, to com- mence in possession after the determination of some particular e.-tate granted out by him,' (2 Black., 175.) Sir Edward Coke de-cribes a rever- sion to be the returning of land to the grantor ox his heirs, after the grant is over. Now, it is equal- ly clear that this e.'^tate does not apply to the case of the Indians; for, instead of Georgia being the grantor, and limiting a particular estate to the In- dians, which is to have a specific duration, the very reverse is true. The Indians are the origi- nal grantors, and reserve to themselves in the grant (to wit: the treaties) an interest which is un- limited as to time, and not to end without their consent. These are all the estates which can, by any possibilitji, be made to bear upon the question; apd it Hiay, with great confidence, be asserted that none other can be found. Their occupant title is unlimited as to duration; and, to them, is to all in- tents and purposes the same as a fee simple. They do not care what it is called, if you do not take it away by force, and will suffer them to retain the use and possession of it till they choose to part with it upon their free and voluntary consent. But we frequently attach wrong ideas to particular terms; and if it is understood, by the term occupancy, that it is such a title as will justify Georgia in remo- ving the Indians whenever she pleases, nothing can be more erroneous; for, according to the legal sig- nification of occupancy, as understood in the Eng- lish law, they will have a right to retain their land until they voluntaiily abandon or sell it. Black- stone, in describing the title to land by occupancy, says: 'It is taking the possession of those things which before belonged to nobody.' This, as we have seen, is the true ground and foundation of all property, or of holding those things in severalty; which, by the law of nature, unqualified by that of society, were common to all mankind. But when once it was agreed that everything capable of own- ership should have an owner, 'natural reason sug- gested that he who could first declare his intention of appropriating anything lo his own use, and, in con.^equence of such intention, actually took pos- session, should thereby gain the absolute property of it.' (2 Black.. \bS.) There is now no title by occupancy in England, and never was but one in- 10 stance, and that is now virtually destroyed by stat- ute. The case of the Indians in America comes the nearest to it of any we know of— hence it is so called; and, applying it to the definition above laid down, it isamuch more stubborn title than is usu- ally conceived. We have seen, also, that the first discoverer (Great Britain) so chose to consider it, and imposed no other condition or restriction upon it than the right of pre-emption on her part. This has been followed up by Georgia, by the other States, and by the United Stales; so that, as far as human action and decision can confirm and settle a ques- tion, this is at rest." Having now, 1 humbly conceive, clearly estab- lished before this Board, by the only treaty stipu- lations and law of the United States existing upon the subject, and by authorities which cannot be controverted, that the Cherokees held the title of occupancy to certain lands in Georgia in the year 1830, and until it was extinguished by the treaty of 1835; ihat this title was as good, and held as sacred in the hands of the Indians, as a fee simple held under patents from the United States; and that the gold mines discovered within the boundary of these lands were not a separate and disiinct prop eriy, but incorporated with the lands; I will proceed to establish the following points by testi- mony which, I apprehend, will be satisfactory to the Board: First. That the deposite gold mine on Pigeon Roost was claimed and occupied by Rogers (a Cherokee) in the year 1830. Second. That it was located within the bound aries of the Cherokee country, upon lands ceded by that nation to the United Stales by the treaty of 1835-'36. Third. That Mr. Rogers was forcibly dispos- sessed of this property by the authorities of the State of Georgia in the year 1830, and kept out of possession by the same power until the year 1838, "when the Cherokees surrendered possession of their entire country, under the provisions of the 16th article of the New Echota treaty. It is in proof before the Board, that Governor Gilmor, of Georgia, under authority of a law of that Slate extending its jurisdiction over the Cher okee couniiy, issued a proclamation, requiring all Cherokees, engaged in digging gold on their own lands, to desist i'rom so doing. This proclama'ion being disregarded by the Cherokees, who claimed to be the rightful owners of the lands, a bill of in junclion was issued, a copy of which is also before you. By reference to this bill, you will find the name of the present claimant as one of the persons enjoined; and, upon his refusal to obey it, he was arrested on a writ of attachment, and dragged be- fore one of the courts of Georgia, sixty miles from the place of his operations. He was there fined, and threatened with imprisonment, and only es- caped the sentence by binding himself to obey the injunction, and cease operating in his mines. The proof of these allegations is before you in the testimony of James Law, clerk of ihe superior court of Hall county, by which the bill of injunction was granted; and in the testimony of ^. Chastain, deputy sheriflTof said county, who certifies that he "served a bill of injunction at the instance of Gov- ernor Gilmor, in the year 1830, upon Johnson K. Rogers and others, who were at thai time engaged in mining on Pigeon Roost Branch, in what was then called Hall (now Lumpkin) county, Georgia: that afterwards, in the same year, he arrested said Rogers and two others, by virtue of a writ of attach- ment placed in his hands by the Governor of the State, and conveyed them under a strong guard tc Watkinsville, Clark county, in the same State where the superior court was then in session. '1 hey were there arraigned before Judge Clayton, (who has since reversed the opinion then entertained;) and they were committed to jail until they paid the costs of arrest, which they did do. They were also compelled to give security for thfir appearance at tiie next term of the superior court of Hall county; but the court allerwards dismissed the case, upon the promise ol the prisoners to obey the injunction." This testimony is on file — see paper marked B. I have now proceeded so far as lo show that my client, Johnson K. Rogers, was in possession ol a gold mine in the year 1830, on landsthen belonging to the Cherokee nation; that he was a Cherokee, entitled by the laws and usages of the nation to occupy and work said mines; that he was forcibly dispos^essed of this properly by the authorities of Georgia in 1830, and that he has since that time been kept out of possession. The testimony adduced to establish this position requires no explanation from me lb give it character before this tribunal. A "spolia- tion" has, then, been committed by theauihoritiesofa sovereign Stale upon the properly of the claimant, a Cherokee Indian; and how is ihe amount of the damages he has sustained to be asceriainedl and from whom, and in what manner, must he obtain indemnity 1 With regard to the former, I presume this Board will agree to be governed by a standing rule of law, and require nothing more than "the best evidence of which the nature of the case admits." The claimant in this case has complied with this rule, as far as it was in his power to do so. He has brought before you four respectable citizens of Georgia, who swear that they have a perfect knowl- edge of the mines on Pigeon Bianch, on which Mr. Rogers was operating in ihe year 1830. Their tes- timony is before you, in papers numbered 1, 2, 3, and 4. The first wiiness, Milton H. Gnthright, tes- tifies ihat he "was mining for gold on Pigeon Roost Branch in the year 1830 ; that said branch contains very valuable and rich gold deposite mines; that the portion he worked yielded him upwards of 2 dwts. to the hand per day; that the oiher operatives made equally as much to the hand, and .«ome of them more ; that in June, 1830, after intruders from other States were removed by the United States troops, he saw J. K. Rodgers engaged in mining on this branch;" and he further swears that he "is con- fident, from his oicn knoxcledge, that these mines have been worked over four or five limes since 1833, when he became a permanent resident of Lumpkin county, and that they have invariably yielded from 1 to 2 dwts. to the hand per day," {See testimony No. I.) The second witness, James Lamar, swears that he was "well acquainted with Mr. Rogers, the claim- ant, in the year 1830, who was then engaged in dig- ging for gold on Pigeon Branch; that he (deponent) was engaged in digging on same branch, and his mine yielded him 3 dwts. to the hand each day; and had intruders been kept ofFby the United States, more than that ainonnt could have been constantly made." This witness describes the richness of the whole branch; and "is certain, from the position occupied by Rogers, that, had he kept possession, the average to the hand would have greater than deponent's." — (See testimony No. 2.) The testimony of Leieis Ralston corroborates the statements of the preceding witnesses. He swears that he knows of his own knowledge, that, with or- 11 dinary industry and skill, the mine would and did yield at least 2 dwts. per day lo the hand, upon an av- erage of all the expenses and labor in preparing the same for work, including the loss of time by wet weather. — (See testiviony No. 3.) H. C, Tatum testifies that he worked a mine on Pigeon Roost Branch, during the latter part of the year 1829 and spring of 1830; I hat it was remaika- bly rich, yielding him from one to three penny- weights per day during the wliole time; that J. K. Rogers was engaged in mining at the same place, during the same period of time, and until he was forcibly removed by the authorities of Georgia. — {See tesiimomi, No. 4.) Here are lour respectable citizens of the United States, swearing positively to the value of the mines wrested from Mr. Rogers; and, taking their estimates, we have clearly established the full amount of our claim. The credibility of these witnesses stands before this Board un impeached and unimpeachable. They have been within the reach of cross-examination, ii desired by any party interested; but it has not been resorted to; and, al- though this case has been publicly before the Board for a considerable length of time, no rebut- ting testimony has been offered. We can, there- fore, claim the full benefit of all the testimony relevant to the case which we have adduced, under a rule of evidence everywhere respected. Who are the parties in this ca^e"? Why, the Uniied States, either on its own behalf, or as guardian for a sovereign State, and a Cherokee Indian, who charges that his property has been forcibly taken from him. Now, let us go back to the law of 1802, section 22, and there we find the covenant: "That, in all trials about the right of properly, in which an Indian may be a party on one side, and a white person on the other, the burden of proof shall rest on the white person, whenever the Indian shall make out a presumpldon of title in himself, from the fact of previous ownership." The claimant in this case has not only made out a presumption of title to the property on Pigeon Roost, but has furnished incontrovertible proof to establish an ab- solute title, held in pursuance of law and treaty stipulations; and that he was ejected from his pos- session by white citizens of Georgia, acting under authority of the goveinmenr of that State. Will it be pretended that the various treaty stipulations, and the provisions of the intercourse law I have cited, guarantying protection and indemnity to the Indians, did not intend to protect these peo- ple again.st depredations committed by white citizens of a State Avhen acting under the authority of the executive of that Statel I apprehend that no one will say that the law or treaty-making power could be guilty of practising such an imposition upon the Indians. The United States constituted themselves guardians of the Indians by the law of 1802; and it was as much the constitutional duty of the Executive to cause that law to be faithfully exe- cuted when its provisions were infringed upon by the constituted authorites of H State, as when the act was perpetrated by individuals of the State. A mode is prescribed by this law, and by the various treaty stipulations I have quoted, by which the In- dians shall be remunerated for losses sustained by depredations committed by white persons. The Ifith section of the intercourse law enacts that, "irhere the property of any friendly Indian is ta.kcn o'c de- stroyed in the Indian country, the person convict ed of the offence shall be sentenced to pay to the In- dian to whom the property shall belong, a sum equal to twice the amount of the property taken or destroyed; and if the offender is unable to pay, the Uniied States promise payment out of the treasu- ry. And it goes still further: the last clause of the section provides, "that if such offender cannot be apprehened and brought to trial, the amount of such property shall be paid out of the treasury, as aforesaid." This is a high-sounding guaranty; but who is to arrest and prosecute the offiender to conviction, if he can be found 1 Most assuredly not the injured Indian; for he had nothing to do with the enactment of the law; had no compe- tent court to try iheoffTence; and, in the courts of Georgia, could not be a party to a suit brought against a white person. It niust be done by the Government of the United States, which has assum- ed the guardianship over the rights and property of the Indians, by the law providing punishment" for (he offence. The United States having refused or neglected to comply with the provisions of this law, and the stipulations of the several treaties al- ready existing, so far as the Cherokees were con- cerned, provision was made by the treaty of 1835 "to pay and liquidate the just claims of the Cherokees upon the United States for spoliations of every kind, that have not been already satisfied under former treaties." The 9th and IGth articles of this treaty also recognize and con- tinue the original guaranty of the United States protecting the Cherokees in possession of their lands, and providing indemnity where ".spolia- tions" have been conmiitied. The IGth article, in stipulating for the protection of the Cherokees in "their possessions and property" for and during the term of two years after the ratification of the treaty, makes the solemn promise to those who may have been unlawfully dispossessed, that they shall again be put in posses.sion, "and placed in the same con- dition in reference to the laws of the State of Geor- gia, as the Indians that have not been dispossessed; and if this is not done, and the people are left un- protected, then the United States shall pay the sev- eral Cherokees for the losses and damages sustained by them in consequence thereof." The spoliation claims, for which payment is provided in the several articles I have read, were created under the provisions of the law of Congress and then existing treaties which defined the char- acter of such claims, and pledged the faith of the United States for their liquidation. But the treaty of 1835 has designated a special tribunal by which all the claims arising under, and provided for, by that treaty, shall be examined and adjudicated. This tribunal is the present Board, organized under the 17th article, which confers upon it powers of a high, delicate, and imposing character; within its legitimate sphere of action, they are equal to those possessed by the Supreme Court of the United States. It has the sole and exclusive jurisdiction over every claim arising under the treaty by which it has been created, and its decisions are made "final." No appeal can be made to any other tri- bunal known to the laws of the coimtry; and no department of this Government has a right to pre- scribe the boundaries of its jurisdiction, or review or alter its decrees when rendered. You are the commissioners composing the Board clothed with these stupendous powers. They are conferred by the joint action of the Uniied. States and the Cherokee nation. Yuur Board is the ojf.-piing of the two na'dons, made so by the words of the com- pact. Yon are, therefore, commissioners appointed on belialf of the Cherokees. as well as on behalf 12 of the United States; and the Indian claimants look to you as the ark of their safely, in the con- test in which they are now engaged to obtain their just rights. The treaty of 1785, negotiated fifty-seven years ago, obtains the concession from the Cherokees to the United States of the right to manage their af- fairs, under the specious declaration that it is done "for the benefit and comfort of the Indians, and for the prevention of injuries and oppressions." This protestation may have for some years been held sacred, but it gradually subsided; and, in conse- *quence of a series of "oppressions diHA injuries" in the year 1835 the last Indian was stripped of his birthright. The millions of acres of the choicest lands now embraced within the limits of four Slates of this Union, passed from the Cherokee na- tion into the hands of their oppressors, and they had not one acre left in the home of their fathers. This is not a flight of the imagination; but sober, serious, naked truth. They ceded (heir country because they could no longer inhabit it in peace; and a large portion of them were compelled to com- ply with the nation's part of the contract, at the point of the bayonet. How has that cantracl been executed on the part of the United States? Why, upwards of seven years have been suffered to elapse since its ratification, audit is still not com- plied with, although the Indians have been unceas- ing in their appeals to the Government for the payment of claims therein provided for. On behalf of the claimants whom 1 have the honor to represent before you, 1 ask a patient and attentive hearing. I appeal not to your sympathies; I ap- peal not to ytur pity; I appeal not to the kind feel- ings which I know you possess towards the In- dians; but I appeal confidently and boldly to your high sense of justice, to your exalted character for in • tegrity, honor,ability, and independence, which v/ilj always induce you, in the discharge of the sacred and responsible duties confided to your care, to do that which you believe to be right and just, regard- less of consequences. The fate of a people is in your hands, who believe they have been grievous- ly injured by the Government of the United States. They may again be rendered independent and hap- py, or beggared by your decrees; and their case claims your serious and deliberate consideration. In the case of Johnson K. Rogers, I humbly ven- ture the assertion, that a claim for a "spoliation" is made out, which comes clearly within the pale of your jurisdiction. It exhibits a depredation or trespass of the most aggravated character; and if it had been commuted by one citizen of a Stale against another, and the damages assessed by a jury of their countrymen, the amount awarded would more than double the intrinsic value of the property of which the plaintiS' was dispossessed. Mr. Rogers makes out his account for losses sus- tained through a period of .seven years and eleven months, extending from the lime he was dispos- sessed of his property (in June, 1830) to the 23d of May, 1838, when the Cherokees, under ttie 16ih ar- ticle of the treaty of 1835, were compelled to relin- quish the occupancy of their posscssiuns and prop- erty in the ceded lands, tie estimates his losses from the net profits accruing to him from the labor oi eight hands employed in woikinghis mines du- ring the time he was in occupancy. This is the usual mode adopted by Congress in awards ing indemnity, where Governmcni contracts have been violated by the United States; and a treaty is a contract which the Government can- not violate without indemnifying the injured party, in like manner, if no other mode of redress was prescribed by its provisions. But, in the pres- ent case, Mr. Rogers was in po.ssession of a valua- ble gold nsine, which, under existing treaties and laws of the United Stales, and the laws and usages of the Cherokee Nation, he had a right to occupy and work; and he might as well have had fifty hands employed as eight, and thereby proportion- ably have increased his claim for indemnity, by virtue of these laws and treaty stipulations, if the gold embedded under the surface of the earth, which he had the right to excavate, could have been collected in one great reservoir, it might have been weighed, and its value accurately ascertained; for, not like other minerals, it has a regular, fixed value, which neither increases nor diminishes by the change of the times; and, in that case, this hon- orable Board could not have avoided awarding in his favor for the full amoimt. But, this not being practicable, he has limited his claim to the profits which would have accrued to him by the labor of eight workmen; and this has been ascertained by the best mode that could be adopted under the cir- cumstances of the case. The law 1 have cited, and ihe testimony adduced, appear to me to be full, ample, and complete; every crevice is filled, and every joint is in its place; the credibility of the witnesses has not been questioned, and the evi- dence — which is "the best of which the nature of the case admits" — clearly proves that a spoliation has been committed, amounting, at least, to the sum of $23,338, for which we now claim an award. 1 now submit this case into your hands, with the earnest invocation that, in "its consideration, you will have impressed upon your minds the im- portant and sacred character of your connexion with the Cherokee claimants; that you constitute a tribunal, from whose decrees, when rendered, there can be no appeal; that you will look upon the shattered remnant before you as a portion of that once proud and mighty people — the aboriginal owners of a country whose acquisition has con- tributed so much to the wealth and power of this great nation; that you will keep in mind the de- grading truth, ihSiX technicalities, whenever they are introduced into an Indian treaty, are intended to deceive the Indians; and that you will frown upon every attempt made by any department or func- tionary of this Government to force upon you a construction of this treaty other than is warranted by ths manifest intention and meaning of the In- dian party to the compact, at the time it was nego- tiated; that you will hold sacred that great princi- ple in international law which gives the benefit of all dovhts ani.\r\g in the interpretation of treaties to the vieaker party; and that, in making up your judgment, you will adopt the benign maxim of our law, which .says, "that it is belter that ninety- nine guilty men should escape than that one inno- cent man should suffer;" and, applying it to your suffering Cherokee suitors, say, tliat it is better ihe treasury shoulihc emptied than that the most humble among them should, on account of any technical exception or error in properly submitting the case, not obtain full, ample, and complete justice. 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