ITn tbe Court otdlaime. 
 
 No. 23,214. 
 
 THE EASTERN CHEROKEES 
 
 vs. 
 
 THE UNITED STATES. 
 
 Order. 
 
 The special agent for the enroHment of the Eastern 
 Cherol^ees, Guion Miller, having made a report under date 
 of February 18, 1907, to the Commissioner of Indian 
 Affairs, respecting the distribution of the fund arising 
 from the judgment hereinbefore awarded, and the Secre- 
 tary of the Interior having referred said report on Feb- 
 ruary 20, 1907, to this court for consideration of the 
 matters therein set out, it is ordered this 5th day of 
 March, 1907, that argument be heard upon the matters 
 involved in said report, on Monday, April 8, 1907; and 
 ■that due notice, by publication, shall be given to all 
 parties in interest to appear on said clay. Said notice 
 shall be in form as follows: 
 
 Notice is hereby given to all Eastern Cherokees, that 
 the Secretary of the Interior has submitted to the Court 
 of Claims for its decision, various questions respecting 
 the distribution of the fund arising from the judgments 
 
 4896—1 
 
of the Court of Claims of May 18, 1905, and May 28, 1906, 
 involving among others, the following points: 
 
 First. Shall the rolls of 1851 be used as the exclusive 
 basis for the present enrollment? 
 
 Second. Shall the distribution be per stirpes or per 
 capita? 
 
 Third. If per stirpes, what disposition shall be made 
 of those portions for which there have been no applica- 
 tions. 
 
 The Court of Claims has fixed Monday, April 8, 1907, 
 for hearing argument upon these questions, when all 
 parties in interest may be represented. 
 
 Said publication shall be made in the following news- 
 papers: 
 
 In Indian Territory. — Vinita "Leader," Muscogee 
 ''Phoenix," Tahlequah "Arrow," Bartersville "Exami- 
 ner," Fort Gibson "Post," Claremore "Progress," and 
 Sallisaw " News." 
 
 In Arkansas. — Fort Smith "Elevator." 
 
 In Georgia. — Canton '^Cherokee Advance," Dalton 
 "Argus," and Rome "Tribune." 
 
 In Mississippi. — Holly Springs "Reporter." 
 
 In North Carolina. — Asheville "Citizen," Murphy 
 "Cherokee Scout," and Waynesville "Courier." 
 
 In Tennessee. — Athens "Post," Chattanooga "Times," 
 Cleveland "Banner," and Ducktown "Gazette." 
 
 In Virginia. — Abingdon "Virginian "and Marion "Demo- 
 crat." 
 
 Department of the Interior, 
 Washington, February 20, 1907 . 
 The Chief Clerk, the Court of Claims. 
 
 Sir: I transmit herewith a communication dated 18th 
 instant addressed to the Commissioner of Indian Affairs 
 by Mr. Guion Miller, Special Agent for the Enrollment of 
 
Eastern Cherokees, with three enclosures, regarding diffi- 
 culties which have developed in the prosecution of his 
 work of making said enrollment. 
 
 Mr. Miller suggests that the Court of Claims be re- 
 quested to give him further instructions in the matter, 
 and that certain questions, six in number, specified in 
 his said communication, be submitted for the determina- 
 tion of the court. This suggestion is concurred in by the 
 Indian Office; also the further suggestion that the mat- 
 ter be given earh^ consideration, and a ruling obtained, 
 if possible, before the summer vacation of the court. 
 
 The matter is, therefore, respectfully submitted, with 
 request for an early consideration and determination of 
 the questions presented by Special Agent Miller. 
 Very respectfully, 
 
 Thos. Ryan, 
 First Assistant Secretary, 
 1489 Ind. Div., 1907. 
 4 enclosures. 
 JES. 
 
 Office of Indian Affairs, 
 Washington, D. C, Fehruary 18, 1907. 
 The Honorable, Commissioner of Indian Affairs, 
 
 Washington, D. C. 
 Sir: In the matter of the enrollment of the Eastern 
 Cherokees, I have the honor to report that on January 
 29, 1907, Belva A. Lockwood, claiming to act on behalf 
 of herself and a large number of her clients as well as a 
 large number of attorneys, filed a petition in this office, 
 asking among other things that the Department ruling 
 of August 20, 1906, which in effect limited the right to 
 enrollment of the Eastern Cherokees to such as were 
 enrolled for the per capita payment made to the Eastern 
 Cherokees in 1851, where living, and to the legal repre- 
 sentatives of those so enrolled who have since dietl, be 
 
changed so as to authorize the enrollment of claimants 
 who can prove that they are the descendants of Eastern 
 Cherokees enrolled under the provisions of the treaty of 
 1835-6, but who can not show that they, or any of their 
 ancestors, were enrolled in 1851. 
 
 The petition makes the claim that the limitation to 
 the rolls of 1851 is in conflict with the terms of the 
 judgment of the Supreme Court in the case, which made 
 no reference to the rolls of 1851, and that for this reason 
 the limitations contained in the order of August 20, 
 1906, are improper and illegal. The petitiongoes further 
 and claims that the order of August 20, 1906, does not 
 in fact comply with the terms of the decree of the Court 
 of Claims of May 28, 1906. 
 
 This petition puts directly before this office a Cjuestion 
 which has been informally raised by a large number of 
 attorneys in conversation with me relative to this case, 
 and in c^uite a large number of applications which have 
 been filed for participation in the Eastern Cherokee 
 fund. 
 
 The matter is of such vital importance that I deem it 
 my duty to present the matter fully, and at the same 
 time to call attention to other difficulties which have 
 presented themselves to me in the consideration of this 
 work, and which are more or less involved in the discus- 
 sion of the petition above referred to. 
 
 The decree of the Court of Claims of May 18, 1905, in 
 treating of the disposition to be made of the fund now 
 to be distributed, after providing for the payment of 
 attorneys' fees and the expenses of the enrollment, con- 
 tains this language: "Second, the remainder to be dis- 
 tributed directly to the Eastern and Western Cherokees, 
 who are parties either to the Treaty of New Echota, as 
 proclaimed May 23, 1836, or the Treaty of Washington 
 of August 6, 1846, as individuals, whether east or west 
 
of the Mississippi River, or to the legal representatives 
 of sueh individuals." 
 
 The Supreme Court modified this portion of the de- 
 cree by eliminating the Old Settlers, that court making 
 use of this language: "On consideration whereof, it is 
 now here ordered and adjudged by this court that the 
 second subdivision of the fourth paragraph of the decree 
 of the said Court of Claims in this cause be modified so 
 as to direct the distribution to be made to the Eastern 
 Cherokees, as individuals, whether east or west of the 
 Mississippi River, parties to the treaty of 1835-6 and 
 1846, and exclusive of the Old Settlers, and, as so modi- 
 fied, be, and the same is hereby, affirmed." 
 
 It will be noted that neither the original decree of the 
 Court of Claims nor this modification by the Supreme 
 Court of the United States, makes any reference to the 
 rolls of 1851; it will also be noticed that in the Supreme 
 Court 'Order the language, "or to the legal representa- 
 tives of such individuals," contained in the original de- 
 cree of the Court of Claims is not retained, and 
 it may be here further noted that this language is 
 not repeated in the final decree of the Court of Claims 
 of May 28, 1906. 
 
 In said decree of May 28, 1906, the court, after quoting 
 the language of the mandate of the Supreme Court con- 
 taining the modification above referred to, proceeds as 
 follows: "And in accordance with said decree, as it was 
 directed to be and is now modified, it is further ordered 
 and decreed that the Secretary of the Interior prepare, 
 or cause to be ]3repared, a list or roll of all })ersons com- 
 ing within the said description entitled to share in the 
 distribution of said fund; and in preparing the said list 
 or roll of such persons, tJie Seeretari/ of the Interior 
 shall accept as a basis for the distribution of said fund 
 the rolls of 18ol, upon which the per capita pai/nient 
 
6 
 
 to the Eastern Cherohees loas made, and make such dis- 
 tribution in pursuance of article 9 of the treaty of 1846." 
 
 The order of August 20, 1906, was based upon this 
 language contained in the decree of May 28, 1906. 
 
 Tliat it was the intention of the Court of Claims to 
 have this payment made per stirpes is evident from the 
 language of the original decree, wherein it states that 
 the fund was to be distributed to the parties to the 
 treaties of 1835-6 and 1846, as individuals, " or to the 
 legal representatives of such individuals;'' nor does there 
 appear to be anything in the mandate of the Supreme 
 Court in conflict with the idea of a per stirpes payment. 
 In order that there may be a per stirpes payment there 
 must be some fixed time, as of which the enrollment is 
 to be made, in order that the exact amount of each dis- 
 tributive share may be determined, and, furthermore, it 
 would be absolutely essential to determine the names of 
 the individuals through whom the per stirpes distribu- 
 tion is to be made. 
 
 I am informed that when the final decree w^as under 
 consideration by the Court of Claims the attention of 
 the court was called to the fact that the Treaty Roll of 
 1835-6 was incomplete in that it gave only the names of 
 the heads of families, with the number in each family, 
 but without giving the individual names of the other 
 members of the family. There was, I believe, no roll made 
 under the treaty of 1846. I am further informed that 
 the court was advised that while the Treaty Roll of 
 1835-6 w^as incomplete, that the rolls of 1851, upon which 
 the per capita payment was made to the Eastern Chero- 
 kees, were complete, and did give the individual names 
 of each Indian enrolled. As I understand it, this was the 
 primary cause of the Court of Claims inserting in the de- 
 cree the provision relative to the rolls of 1851. It was 
 naturally supposed that, inasmuch as the rolls of 1851 
 were intended to contain the names of all Eastern Cher- 
 
okees entitled under the provisions of the treaties of 
 1835-6 and 1846, that no hardship would be imposed by 
 adopting these rolls as conclusive evidence of just who 
 were so entitled at that time, and that, as no other com- 
 plete rolls were available, the necessities of the case 
 would require that the rolls of 1851 be adopted. As I 
 am further advised no question was then raised as to 
 whether or not this provision was in conflict with the 
 terms of the mandate of the Supreme Court. 
 
 If this were a controversy affecting white men, sui juris, 
 it could be easily maintained that the enrollment of 1&51, 
 having been made under direct authority, was in effect a 
 judicial determination of all who were entitled under 
 the treaties of 1835-6 and 1846, to the exclusion of all 
 others not enrolled. There is a serious question, how- 
 ever, as to whether, in a case involving the rights of 
 Indians, who stand in the relation of wards to the Gov- 
 ernment, an enrollment made independently by the Gov- 
 ernment of its own motion and without the fullest 
 publication and notice to the Indians, could be held to 
 be a judicial determination of the rights of the Indians, 
 to the exclusion of individuals who may have removed 
 from the locality, and who may have been in ignorance 
 of the fact that an enrollment was taking place. 
 
 As a matter of fact, as I am informed, and am lead to 
 believe by some of the applications already on file, there 
 are c|uite a number of Eastern Cherokees who can prove 
 that they or their ancestors were duly enrolled under the 
 treaty of 1835-6, who will be unable to prove that they 
 or their ancestors were so enrolled in 1851. By way of 
 illustration, I wnll cite the case of one applicant, which 
 affects a group of aj^plicants similarly situated. 
 
 Sarah Poe, of Kansas City, Mo., who was born in 
 1857, has filed application No. 2028, claiming through 
 her mother, Martha D. Harralson, to her grandfather, 
 Alexander Brown. From affidavits filed in this group of 
 
applications, it appears to be quite well established that 
 Alexander Brown was an Eastern Cherokee Indian, com- 
 ing originally from McMinn County, Tennessee, and that 
 shortly after the treaty of 1835-6 he removed to Mis- 
 souri, where he died about 1840. The Treaty Roll of 
 1835-6 shows Alexander Brown to have been enrolled at 
 that time apparently with two children, but it does not 
 appear that his children were enrolled in 1851 ; doubt- 
 less due to the fact that they were so far removed from 
 their original dwelling place. Clearly, if this applicant 
 can establish the fact that her grandfather, Alexander 
 Brown, was the Alexander Brown whose name was en- 
 rolled under the treaty of 1835-6, she will have brought 
 her case within the express terms of the mandate of the 
 Supreme Court of the United States, but owing to the 
 fact that her mother was not enrolled in 1851, it is 
 ecjually clear that under the order of August 20, 1906, 
 based on the decree of the Court of Claims of May 28, 
 1906, she would be cut off from participation in this 
 fund. 
 
 There are a considerable number of other cases similar 
 to the above, but this is given simply for illustration. 
 It is probable that the attention of the Court of Claims 
 was not drawn to cases of this character when it entered 
 its decree of May 28, 1906. 
 
 While discussing this proposition, it may be well also 
 to call attention particularly to the character of the rolls 
 of 1851, and to point out some of the defects in these 
 rolls, which, it is believed, were not brought to the 
 notice of the Court of Claims at the time of the entering 
 of its decree. The rolls of 1851 are divided into two 
 parts, first, the Chapman Roll, which includes the In- 
 dians residing east of the Mississippi River, and second, 
 the Drennen Roll, which includes the Eastern Cherokees 
 residing west of the Mississippi River. The Drennen Roll, 
 in turn, is divided into nine divisions or districts. The 
 Chapman Roll includes 2,134 names, to which were added. 
 
9 
 
 by special act of Congress, 87 other names; this roll was 
 based upon a census roll made b}' D. W. Siler in 1851, 
 and is quite complete in that it gives the names, ages, 
 and relationship of all the Indians, together with the 
 locality in which they reside. Considerably more than 
 half of the Indians on ihis roll, however, are enrolled 
 under their Indian names. The Drennen Roll of the 
 Eastern Cherokees west of the Mississippi River, is quite 
 incomplete, in that no ages are given and the relation- 
 ship is not stated, although the names are arranged in 
 what is supposed to be family groups. This roll contains 
 14,094 names, more than half of which are Indian names 
 and there is nothing to indicate the sex of the persons 
 so enrolled under Indian names. 
 
 The two rolls together, therefore, contain 16,315 
 names, of which 9,000 or 10,000 are Indian names. These 
 Indian names were recorded as the agent understood it 
 at that time, and it is natural to suppose that many 
 inaccuracies in spelling crept in. During the fifty-five 
 years which have elapsed, these Indian names have been 
 to a very large extent abandoned; in other cases they 
 have been changed; and in many others there would be 
 material changes in the recording of such names, owing 
 to the different interpretations of the sound put upon 
 the name by the person transcribing the same. To illus- 
 trate this, let me call attention to the names of three 
 Indians which appear on the Chapman Roll of 1851, and 
 also appear on the earlier Mullay Roll of 1848, and the 
 later Sweetland Roll of 1869, and the Hester Roll of 
 1884. These names are all found on page 13 of the Hes- 
 ter Roll of 1884, without that page having been espe- 
 cially selected for the purpose. The names will be given 
 in the order of the enrollment: 
 First: 
 
 Mullay Roll of 1848, Xo. 350, 
 
 the name is Talee-skes-kih; 
 
10 
 
 Chapman Roll of 1851, No. 
 
 253, the name is Te-lah-ska-skih; 
 
 Sweetland Roll of 1869, No. 
 
 1065, the name is Te-la-ska-ski; 
 
 Hester Roll of 1884, No. 454, 
 
 the name is Ta-lee-ske-kih; 
 
 And under the head of "latest 
 
 and most correct spelling of 
 
 names for this (Hester) cen- 
 sus" the name is De-lah-ska-skih. 
 
 Second: 
 
 Mullay Roll of 1848, No. 309, 
 
 the name is Ow-wah-soo-lee-kih; 
 
 Chapman Roll of 1851, No. 
 
 1456, the name is Kah-wah-soo-les-kih; 
 
 Sweetland Roll of 1869, No. 
 
 873, the name is Clau-tut-sih; 
 
 Hester Roll of 1884, No. 463, 
 
 the name is Klat-en-tul-set; 
 
 And under the head of ''latest 
 
 and most correct spelling of 
 
 names for this (Hester) cen- 
 sus" the name is Clahn-tah-chih. 
 
 Third : 
 
 Mullay Roll of 1848, No. 29, 
 
 the name is A-lar-chee; 
 
 Chapman Roll of 1851, No. 
 
 419, the name is John A-lah-chih; 
 
 Sweetland Roll of 1869, No. 
 
 335, the name is John Lar-chi; 
 
 Hester Roll of 1884, No. 464, 
 
 the name is Alargih; 
 
 And under the head of "latest 
 
 and most correct spelling of 
 
 names for this (Hester) cen- 
 sus" the name is Tsah-ne-lah-tsih. 
 
 These three cases illustrate the difficulties that will 
 necessarily arise in endeavoring at this late date, fify-five 
 years after the original enrollment, to connect present 
 claimants with their ancestors, who were enrolled in 
 1851 under Indian names — and let me repeat that more 
 
11 
 
 than half of the names on the rolls of 1851 are in Indian. 
 In the case of the Eastern Cherokees residing east of the 
 Mississippi River, who were included under the Chap- 
 man Ptoll of 1851, we have the two later rolls above re- 
 ferred to, namely, the Sweetland and Hester rolls, to 
 assist in the investigation, but the last of these was made 
 up more than twenty years ago. In the case of the Eas- 
 tern Cherokees residing west of the Mississippi River, 
 which comprises the great body of these claimants, we 
 have no later roll to assist in the investigation, as the 
 last enrollment of the Eastern Cherokees, as such, resid- 
 ing west of the Mississippi River, was the enrollment of 
 1851. 
 
 With the great lapse of time, with the uncertainty of 
 spelling, with the known custom among Indians to change 
 or alter their names, such alterations affecting either the 
 beginning or the ending of the name, and being some- 
 times occasioned by serious sickness or other calamity 
 occurring in the family which would induce them to 
 make a complete change of name, serious question arises 
 as to whether or not it is practicable to trace back re- 
 lationship in many of these cases to any given name 
 upon the rolls of 1851. 
 
 So much for the cases where the enrollment is under 
 an Indian name, but the difficulty does not end there, as 
 there are many cases where only what we w^ould regard 
 as first names are given. For example, on the rolls taken 
 together the name of Nancy by itself appears 176 times; 
 the name of Jinney (in the three sppllings of Jinnie, 
 Jinney, and Jinny) appears 90 times; the name of Betsey 
 appears 86 times, while in addition to this the Indian 
 equivalent to Betsey, Quaitsey, api^ears 47 times; Lucy 
 appears 77 times; John appears 88 times; George appears 
 65 times, with numerous other cases of single names ap- 
 pearing from 25 to 50 times. In a considerable number 
 of these cases of single names, some family name might 
 
12 
 
 be inferred, but at most it would only be an inference; 
 in man}^ others no family name at all could be gathered 
 from the face of the rolls, and the name would stand 
 simjily by itself. 
 
 Another source of difhculty is inaccuracy in the origi- 
 nal enrollment. The extent of this we can not as yet 
 estimate, but one striking instance has been brought to 
 our attention. One of the divisions of the Drennen Roll 
 is known as the Illinois District; the third group of that 
 district is as follows: 
 
 Polly Gearin. 
 
 Henr}^ Gearin. 
 
 Ellis Gearin. 
 
 Fox Gearin. 
 
 Maria. 
 
 Sarah. 
 
 William Barnet. 
 
 Platoff Lowry. 
 
 A group of eight signed for by Polly Gearin, by mark. 
 
 We have been informed that this group consists of 
 the mother, Polly, and seven children. The first three 
 children, however, who are distinctly put down on the 
 roll under the name of Gearin, were not in fact named 
 Gearin, but were by a former marriage, and bore the 
 name of Starr. So, too, while the roll indicates Ellis and 
 Fox Gearin as separate individuals, the facts are reported 
 to be that there was a child named Ellis Fox Starr, and 
 another child named George Starr; the two names of the 
 one child having been divided up and made into two 
 separate individuals, while the true name of one, George, 
 was entirely omitted. The Maria and Sarah named in 
 the group should have been named Gearin, while William 
 Barnet and Piatoff Lowry, were also properly named 
 Gearin, and were as a matter of fact twins. 
 
 While doubtless this is an extreme case, it forcibly 
 illustrates the difficulties that are bound to arise in en- 
 
13 
 
 . deavoring to make a per stirpes distribution, using the 
 rolls of 1851 as a basis. 
 
 This last difficulty is, of course, purely a practical and 
 not a legal one. Of the same nature is another, which 
 has assumed in many instances very large proportions. 
 That is the great number of shares claimed by individual 
 applicants, by reason of alleged relationship to indivi- 
 duals alleged to have been enrolled in 1851. A few cases 
 may be cited: 
 
 William Elex or Elk, of Tahlequah, Indian Territory, 
 wdio states that he was born in North Carolina in 1852, 
 files application No. 9817, in which he claims through 
 44 separate lines, besides for himself, if it should be 
 found that he was enrolled. These relatives consist 
 of grandparents, great-uncles, great-aunts, father and 
 mother, uncles and aunts, brothers and sisters, cousins, 
 etc. While it is highly improbable that this claimant 
 could prove himself to be the next of kin to all of these 
 individuals, yet his claim would have to be examined 
 with reference to each one — that is to say, an examina- 
 tion would have to be made to determine which, if any, 
 of these 44 names were enrolled in 1851. P'urthermore, 
 an investigation would have to be made as to whether 
 or not these individuals under some other name, or un- 
 der some different spelling of the same name, may not 
 have been enrolled. In cases where the names are found 
 on the rolls of 1851, the further inquiry would have to 
 be made as to whether or not these individuals were in 
 fact dead. If so, the place and date of death, and 
 whether or not they left direct issue, and if so whether 
 or not the claimant was in fact in the relationship of one 
 of the next of kin of such party. Also, if he was in that 
 relation, the further inquiry would have to be made to 
 g determine how many others were in a like relationship, 
 
 so that the proportionate part of the share might be 
 determined, and so in regard to each of the others found 
 • to have been enrolled. 
 
14 
 
 Another instance of multiplicity of claims may be 
 stated. It is in the case of Polly Russell, who files appli- 
 cation No. 10,397, claiming through her grandmother, 
 Oc-tay-yah Guess; grandfather, Tee-see Guess; father, 
 George Guess; brother, John or Benjamin; half-brother, 
 Oo-sac-see-tee; uncle, Dick Guefes; uncle, Andy or Joe 
 Guess; uncle, Bat Guess; aunt, Sarah Guess; mother, Gus- 
 sti-yeah Guess; uncle. Rider Che-tee-lun-kee; aunt Che- 
 os-sa; aunt, Liddy; aunt, Si-we-usu-gah; uncle, Oh-sca- 
 seah-tee; uncle, Ou-ja-la-na-he; cousin, Jennie Starr, nee 
 Bump; cousin, Liddy Bump; cousin. Bill Bump; cousin, 
 Wah-you-lah; uncle, Looney Langley; cousin, Ancey 
 Bump; great uncle, Cur-lunt-es-gerner; great aunt, 
 Polly, and their daughter, Tiana. 
 
 In submitting this case, Messrs. Watts & Curtis, of 
 Sallisaw, Indian Territory, her attorneys, say: ''We hope 
 that you can make something out of these outlandish 
 names; if you can you can do more than we can." 
 
 I would also invite your attention to a copy of appli- 
 cation No. 10,606, filed herewith, wherein Eliza Andre 
 claims through 53 different lines; and also a copy of her 
 letter wherein she asserts that she will contest the right 
 of all other claimants to any of these shares, except one 
 double first cousin, who is entitled equally with herself. 
 
 While these are extreme cases, there are many that are 
 similarly involved with claims made through ten to 
 twenty individuals. The practical difficulty of investigat- 
 ing such claims must be manifest. 
 
 As furnishing an illustration of the arithmetical diffi- 
 culties involved, one other case may be given: Eleanor 
 B. Bell, of St. Elmo, Tennessee, files application No. 
 10,455, stating, "I claim one-fifth of one-seventh interest 
 in the shares of Albina M., Alexander H. S., and William 
 Joseph Bell; also one-fifth of one-seventh of one-sixth 
 interest in the shares of William, Mary A., William E., 
 and Elizabeth S. Rogers whose names are on the roll of 
 
15 
 
 1851." This is really a comparatively simple case and yet 
 she is claiming a 1-35 interest in three shares, and 1-210 
 interest in the shares of four others. It follows, of 
 course, that it will be necessary to locate the persons 
 entitled to the remaining 209-210 of these shares. 
 
 It has been suggested that under the terms of the 
 decree of the Court of Claims, it was not the intention 
 of the court to have this office trace out the next of kin 
 of deceased Indians enrolled in 1851, and to figure out 
 the share that would go to each such next of kin, but 
 that all that was designed was to have this office de- 
 termine all of those who were enrolled in 1851, who are 
 now living, thereby necessarily at the same time deter- 
 mining those who are now dead. It would then be 
 necessary to determine the time and place of death of 
 those who had died, and have administrators designated 
 by the appropriate probate courts. After such adminis- 
 trators had been duly appointed and had qualified by 
 giving suitable bonds, the share of the decedents would 
 be paid over to such administrators; leaving to the local 
 probate courts and to such administrators the task of 
 ascertaining the next of kin, and of making the proper 
 distribution to such next of kin when so ascertained. 
 
 This procedure would, no doubt, be in compliance with 
 the literal terms of the decree, but it would, I believe, 
 be an innovation in the practice of this office, and it is 
 not in accord with my understanding of the intentions 
 of the Secretary of the Interior and of this office. If 
 such is to be the procedure, it is of the utmost im- 
 portance that that fact should be determined at 
 the earliest possible moment. Some serious difficul- 
 ties in proceeding in this way may be suggested. The 
 difficulty of identification of the deceased individual has 
 already been adverted to, but ndded to this would be the 
 difficulty of locating the exact time and place of death, 
 and of determining what probate court would have 
 
16 
 
 proper jurisdiction of the case, and who was entitled to 
 letters of administration. Serious injustice might result 
 from the omission of individuals entitled to share in the 
 distribution of such fund, resulting from their ignorance 
 of the administration proceedings, either because of 
 actual lack of acquaintance with the name of the de- 
 cedent as enrolled in 1851, or because of lack of knowl- 
 edge of the localit}^ where he died. Take for example a 
 case such as is disclosed by application No. 6809, filed 
 by Mary E. Carley of Sheep Ranch, California, claiming 
 through her father, Clement Vann McNair. He W'as born 
 in Tennessee, was living in the Cherokee Nation in 1851, 
 but shortly after moved to California, where he married, 
 and where claimant was born, and where her father died 
 in 1897. If some relative of McNair's in Indian Terri- 
 tory should see fit to ask for letters of administration 
 there, alleging that McNair lived there in 1851, and had 
 died there, or had not been heard from at any other 
 point, how improbable it is that the daughter in Cali- 
 fornia would ever learn of the proceedings. In this case 
 letters might possibly be taken out in Tennessee, Indian 
 Territory, and California. Difficulties of this character 
 would be much more frequent in cases where the primary 
 beneficiary was enrolled in the east in 1851, but moved 
 to Indian Territory afterward. There are many such 
 cases. Many changes of residence have taken place 
 among these people. 
 
 The expense of administration would also be a material 
 item, as in the case of the claimant referred to above, 
 where there were fifty-three shares to be considered. In 
 order to maintain her rights in each instance it might be 
 necessary for this claimant to appear before as many 
 different probate courts, and there litigate her rights as 
 one of the next of kin of the deceased. But leaving out 
 contested cases, in which the expense of litigation might 
 easily consume the entire estate, it is evident that with 
 an enrollment of 16,315 in 1851 there would have to be 
 
17 
 
 now at least 12,000 administrations. Each estate would 
 amount to about S250, and allowing the administrat' r 
 10 per cent commission, and estimating the court costs 
 at a minimum of $10, in each case, the total cost to the 
 Indians would be over §400,000, which would be in addi- 
 tion to the expense of this office in making up the rolls. 
 
 Again, it seems altogether probable that there may be 
 hundreds, if not thousands, of names on the rolls of 
 1S51 of persons who can not in any way be identified. 
 This would make it possible for persons so disposed to 
 ask for letters of administration on the estates of such 
 persons, averring the date and place of death at some 
 convenient point, publishing the same, and under some 
 claim of relationship securing the money; there being no 
 one having sufficient knowledge of the facts, or of the 
 proceedings, to controvert any of these statements or, 
 in fact, to create sufficient interest to cause an investi- 
 gation into the rights of such claimants. In these 
 instances unless the Department should assume the 
 responsibility and the Inirden of investigating each case 
 where such apjjlication was made, opportunities for fraud 
 would be almost unlimited. 
 
 On the other hand, if administrators are not to 
 be appointed and the per stirpes distribution is to 
 be retained, grave difficulties will arise in determining 
 who are in fact the next of kin of any given decedent; 
 what laws of distribution must appl}'; whether a 
 husband's right should be recognized in the estate 
 of his deceased wife, and vice versa. As an example 
 of these difficulties, the application of Catharine Craig, 
 No. 9418, may be given. In it she claims as wife of Frank 
 W. Craig, deceased, who was born in Missouri, in 1854. 
 She claims the interest of her husband, in his mother's 
 right, and also the interest of her husband, in his brother's 
 right. Assuming that ai)plicant's mother-in-law, Eliza 
 Craig, was enrolled in 1851, and that her brother-in-law, 
 
 ■i896-3 
 
William Craig, was likewise enrolled in 1851, the questions 
 involved would be, did Eliza Craig and William Craig 
 die in Missouri; if so, when; did the husband, Frank W. 
 Craig, survive them; was he the sole next of kin of the 
 said Eliza Craig and William Craig; did he die without 
 issue; what was the law of distribution at the place of 
 death of Eliza Craig and William Craig, and at the place 
 of death of the husband, Frank W. Craig? Under the law 
 of distribution applicable in those cases, would the 
 widow have any rights? If so, what would be the extent 
 of those rights? Innumerable questions as to the law of 
 distribution would necessarily arise. 
 
 As the Indians have i^een so widely scattered through 
 so many States and Territories, and the laws of distribu- 
 tion have been changed so frequently, no uniform rule 
 would seem possible. 
 
 It has been suggested, and with some force, that, at 
 least up to the time of the judgment entered in this 
 case, there was no property rights vested in any of the 
 Indians, which could properly be the subject of the laws 
 of administration and distribution; that there was only 
 a right of action against the United States which could 
 not be enforced except by the consent of the United 
 States, and that right was vested in the band of Eastern 
 Cherokees rather than in any individual Eastern Cherokee. 
 
 In view of the difficulties set forth above, I respect- 
 fully suggest that this matter be called to the attention 
 of the Honorable Secretary of the Interior, in order that 
 he may consider the advisability of referring the matter 
 back to the Court of Claims for further instructions. If 
 such reference is made, I would further suggest that 
 questions similar to the following should be submitted 
 to the court for its determination: 
 
 First. Should the language of the second paragraph of 
 the decree of the Court of Claims of May 28, 1906, that 
 "it is further ordered and decreed that the Secretary of 
 the Interior prepare, or cause to be prepared, a list or 
 
19 
 
 roll of all persons coming within the said description 
 entitled to share in the distribution of said fund; and in 
 
 [ preparing the said list or roll of such persons, the Secre- 
 
 tary of the Interior shall accept as a basis for the distribu- 
 tion of said fund the rolls of 1851, Upon which the per cap- 
 
 ' ita payment to the Eastern Cherokees was made, and make 
 
 such distribution in pursuance of article 9 of the treaty 
 of 1846," be so construed as to exclude from enrollment 
 claimants who can establish the fact that their ancestors 
 w^ere Eastern Cherokees at the time of the Treaty of New 
 Echota of 1835-6, and were enrolled as such under said 
 treaty, but who are unable to prove either that they 
 w^ere themselves enrolled with the Eastern Cherokees for 
 the per capita payment on the rolls of 1851, or that they 
 are the legal representatives of some one who was so en- 
 rolled in 1851? In other words, shall the rolls of 1851 be 
 taken as the basis for the present enrollment, to the ex- 
 clusion of all persons not enrolled in 1851, or not directly 
 tracing through some one so enrolled at that time, not- 
 
 ^ withstanding such persons could prove that they or their 
 
 ancestors were duly enrolled under the Treaty of New 
 Echota in 1835-6? 
 
 Second. Is the distribution to be per stirpes or per 
 capita? 
 
 Third. If per stirpes, from what time? This question 
 is, of course, dependent upon the answer to the first 
 question, for if the rolls of 1851 are to be the exclusive 
 basis for the enrollment, that would fix the time. 
 
 Fourth. If the payment is to be made per stirpes, 
 must each present beneficiary be enrolled, and the exact 
 amount due each determined and payment made to him 
 direct, or, must administrators upon the estates of the 
 primary beneficiaries be appointed, and the shares of the 
 
 ^ decedents paid over to such administrators, leaving to 
 
 ^ the local courts to determine the laws of descent appli- 
 
 cable to each case, and the persons who are the next of 
 f kin entitled to participate in such estates? 
 
20 
 
 Fifth. If the payment is to be made per stirpes what 
 disposition shall be made of the shares of primary bene- 
 ficiaries, who left no knov/n next of kin; or where no 
 letters of administration have been taken out upon the 
 estate of such primary beneficiaries? 
 
 Sixth. If the payment is to be made per capita, as of 
 what date shall the enrollment be made? 
 
 There have already been filed over 17,500 applications, 
 and by the 31st of March, the time now limited for the 
 filing of applications, there will probabl}^ be something 
 over 20,000 such applications. 
 
 Pending the determination of the questions above in- 
 dicated there is ample work to keep the present force 
 engaged in making the preliminary examination of these 
 applications, having omissions supplied, and grouping 
 them into families, so that the claims of relatives may be 
 considered together. No matter what answers may be 
 given to the above questions this work will have to be 
 done. 
 
 Although I have known of several of the difficulties 
 referred to above for sometime, I thought it best to wait 
 until the whole matter had been fully developed before 
 asking for further instructions, so that all questions to 
 be raised might be disposed of together. I believe, how- 
 ever, that thp i'"'^ts have now been fully disclosed, and if 
 the matter is to be referred- to the Court of Claims it is 
 important that this should be done in time to secure, if 
 possible, a ruling from that court before the summer 
 vacation. 
 
 I inclose, herewith, a copy of the order of August 20, 
 
 1906, referred to above, which was in fact only the formal 
 
 notice to claimants to file claims, which notice was duly 
 
 approved by the Secretary of the Interior, before issuance. 
 
 Very respectfully, 
 
 GUION MILLER, 
 Special Agent for the Enrollment 
 of Eastern Cherokees.