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EXPLANATION 
 
 OF THE 
 
 FUND HELD IN TRUST 
 
 BY 
 
 THE UNITED STATES 
 
 FOR 
 
 THE NORTH CAROLINA CHEROKEES. 
 
 BY WM. H. THOMAS. 
 
 WASHINGTON: 
 
 PRINTED BT LEMUEL TOWEES. 
 1 858. 
 
To the Hon. Alfred B. Greenwood, 
 
 Chairman of the Committee on Indian Affairs. 
 
 Washington, D. C, February 1, 1S5S. 
 
 Sir : As the representative of the North Carolina Chero- 
 kees, I beg leave to refer to a resolution introduced in the 
 House of Representatives, by the Hon. T. L. Clingman, which 
 passed, and is now under cousideration of the committee. 
 And by way of explanation to furnish the facts connected 
 with the origin of the trust-fund therein referred to, and the 
 objects designed to be attained by the resolution, 
 
 " Jiesolved, That the Committee on Indian Affairs inquire 
 into the expediency of amending the fourth and fifth sections 
 of an act, entitled, An act, making appropriations for the cur- 
 rent and contingent expenses of the Indian Department, &c, 
 approved 29th July, 1818, so as to regulate the payment of 
 interest due to the North Carolina Cherokees, on funds held 
 in trust for them by the United States under the said act, so 
 as to estimate the interest on what remains due in each 
 year ending on the 29th of July, agreeably to a census roll 
 of said Indians. And in case of the death of any of the In- 
 dians, to estimate the interest to the time of payment, which, 
 with the principal of $53 33, to be paid over to the legal rep- 
 resentatives of such Indians remaining in the State of North 
 Carolina at the time of payment. And in case of there being 
 no heirs at law to receive it, then to pay over the same to the 
 survivors of that portion of the tribe and their legal repre- 
 sentatives, in accordance with the laws of the State. 
 
 So early as the year of 1783, the State of North Carolina 
 passed an act to protect the Cherokee Indians residing within 
 her chartered limits, and guaranteed the title of their lands 
 designated by naturnal boundaries. The effect of which grant, 
 agreeably to the decisions of the Supreme Court of the State, 
 was, to vest the fee simple in the Indians as tenants in com- 
 mon while they continued on the land. (See 3d Hawks' Re- 
 ports — page 151 — Enchella vs. Welch.) 
 
 In 1808, as shown by the preamble to the Cherokee Treaty 
 of 1817, the North Carolina Cherokees, known as the Upper 
 Towns, and the Cherokees in Georgia and other States, known 
 as the Lower Towns, became separated in policy. The former 
 determined to remain permanently in the country they then oc- 
 cupied, to engage in the pursuits of agriculture and civilized 
 life, and the latter preferred removing west of the Mississippi 
 where game was more plenty. Each portion of the nation sent 
 on delegations to make known to the President of the United 
 
 
4 
 
 States the policy their people desired to adopt. President 
 Jefferson promised to gratify the wishes of both. Those who . 
 wished .to move west, were to be furnished with lands in that 
 country to be the home of such of the tribe as might prefer 
 to emigrate at any subsequent period, and no further cessions 
 were to be required. But the State of Georgia claimed that 
 the Government of the United States had stipulated to extin- 
 guish the Indian title within her chartered limits — urged the 
 conclusion of a treaty, by which this object would be attained. 
 Under this influence a treaty was drawn up at Washington 
 city, nnder the direction of President Jackson, which formed 
 the basis of the treaty of 1835. The President, knowing that 
 the Cherokee tribe were advanced in civilization — that a large 
 number of individuals, including the North Carolina Chero- 
 kees, were bitterly opposed to removal west, to conciliate them 
 the 14th article of the proposed treaty, which finally became 
 the 12th article of the treaty of 1835, was inserted. It pro- 
 vided, among other benefits of the treaty, that they should 
 be entitled to commutation for removal and subsistence allow- 
 ance of $53 33 each. The 12th article of the treaty of 1835, 
 based on the foregoing, was read and explained by the United 
 States Commissioner to the Cherokee people - as containing 
 the same provisions with regard to commutation for removal 
 and subsistence, as was contained in the orignal propositions 
 and intructions of the Government of the United States, with 
 the addition of the provisions in favor of the pre-emption and 
 reserative rights, as the report of the Commissioner, John 
 P. Schermerhorn, published with the documents accompany- 
 ing the treaty, prove. The North Carolina Cherokees, ascer- 
 taining that a treaty had been concluded with a small portion 
 of the tribe who resided in Georgia, and who had passed 
 under the dominion of that State, employed the undersigned 
 to come on to the city of Washington to examine for them 
 the provisions of the treaty, and, if necessary, to secure their 
 rights — to remain in North Carolina with a fair and equal 
 share of the proceeds of the sale of the lands — to obtain sup- 
 plimental articles, or defeat its ratification. Upon making 
 known to the Commissioner who negotiated the treaty, and 
 also to the delegation who accompanied him to Washington 
 the objects of his mission, they contended that these objects 
 had already been provided for in the treaty, and this opinion 
 was concurred in by the Commissioner of Indian Affairs. 
 But to guard against the possibility of a construction being 
 placed on the treaty different from the understanding at the 
 time it was negotiated, a written explanation and agreement 
 was drawn up and signed by the individuals who negotiated 
 and signed the treaty. By this agreement it was provided, 
 
That the Cherokees who remained in North Carolina, should 
 have the use of the hunting ground, including a portion of 
 the Great Iron mountain, adjacent to where they desired to 
 form a settlement, and where they now live, reserved, under 
 the treaty of 1791, until the country is settled. An explana- 
 tory article was also included in the agreement, which pro- 
 vided as follows : 
 
 "It is further agreed that one claim to which said Cheerokees, do-siring to 
 remain are entitled, by the 12th article of the Xew Echota Treaty, amounting 
 to $53 33, intended to place them on terms of equality with those who chose 
 to emigrate in two years from the ratification of the abovenamed treaty, who 
 are allowed that sum for removal and subsistence, out of the money arising 
 from the sale of the common property — shall be placed by them on interest in 
 the Stnte Bank of North Carolina, or some other safe institution, civ.,' — (See Sen. 
 Doc. No. 120.) 
 
 Upon the suggestion of the Commissioner of Ind tan Affrairs, 
 this agreement was laid before him to be submitted to the 
 Secretary of War (Governor Cass) for his decision thereon. 
 He, on the 4th July, 1830, decided that the North Carolina 
 Cherokees without removal, were entitled to all the stipula- 
 tions of the treaty.— (See his letter 1th July, 1S3G.) The 
 North Carolina Cherokees under these circumstances, were 
 induced to believe that the Government of the United States 
 would carry out the treaty, as it was known to have been read, 
 explained, and interpreted to and understood by the Indians — 
 surrendered the lands claimed to have been ceded under the 
 treaty, and purchased lands for themselves, as contemplated 
 by the President with reference to the class that remained 
 east. But when application was made to the Government of 
 the United States for a compliance on her part, the officers of 
 of the Government had been changed ; and owing to this or 
 some other cause it was refused and a new construction placed 
 on the treaty, totally different from the manner it was known 
 to have been understood by the Indians. Jn the meantime, 
 the North Carolina Cherokees, shortly after the ratification of 
 the treaty of lS35-'6 sent on to the General Assembly of 
 the State a petition, setting forth their determination to re 
 main in the State after the expiration of the two years allowed 
 for the removal of the remaining portion of the tribe ; and 
 requested the passage of a law for their protection. This lead 
 to the passage of the following act : 
 
 Be it enacted, d'e, "That all contracts of every nature and description made 
 after the eighteenth of May, one thousand eisrht hundred and thiBty-eight, with 
 any Cherokee Indian, or any person of Cherokee Indian blood, within the second 
 degree, for an amount equal to ten dollars or more, shall be null and void, unless 
 some memorandum thereof be made in writing and signed by such Indian, or 
 person of Indian blood, or by some other person by him authorized, in the pres- 
 ence of two creditable witnesses, who shall also subscribe the same." — (See act 
 of ISSO-'ST.) 
 
6 
 
 But notwithstanding the passage of this act, which, under 
 the circumstances, was virtually giving the sanction of the 
 State to x the Indians to remain within her limits, the General 
 Government still refused to pay them their portion of the 
 funds, or to place on interest the sum allowed under the 8th 
 and 12th articles of the treaty of 1835-'6 for a commutation 
 of removal and subsistence. The undersigned having repre- 
 sented to the North Carolina Cherokees that they would be 
 entitled to this allowance, as well as all other benefits of the 
 treaty, felt called on to prevent a construction being placed on 
 it which would deprive them of nearly all its benefits. Ap- 
 plication was made to the Commissioner of Indian Affairs, who 
 refused to make the allowance. An appeal was taken to the 
 Secretary of War, who refused to reverse the decision of the 
 Commissioner. An appeal was then taken to President Yan 
 Buren ; he expressed an opinion in favor of the Indians, but 
 went out of ofiice without leaving any decision on record. 
 Application was subsequently made to President Tyler, and 
 he referred the question back to the Indian Ofiice, and by the 
 time that adverse decisions were made, and appeals taken and 
 brought up to the President for his action, his term had ex- 
 pired, and President Tyler left the ofiice without making any 
 decision. 
 
 With a hope of enlisting, at least, the delegation in Congress 
 from North Carolina in favor of her Indian population, appli- 
 cation was made to the Legislature of the State, which lead 
 to the passage, by a unanimous vote of both Houses, of the fol- 
 lowing resolution : 
 
 Resolutions relating to the Cherokee Indians : 
 
 Resolved, That our Senators and Representativest in the, 
 Congress of the United States are hereby requested to use their 
 influence in favor of obtaining a speedy settlement of the just 
 claims of the Cherokee Indians residing in this State, &c. 
 
 Resolved further, That his Excellency, the Governor, be re- 
 quested to send a eopy of the foregoing resolutions to our Sena- 
 tors and Representatives in Congress. 
 
 Read three times in the General Assemby, and ratified 8th 
 January, 1846. \ 
 
 EDWARD B. STANLY, 
 
 Speaker of the House of Commons. 
 
 BURGESS S. GATHER, 
 
 Speaker of the Senate. 
 
 The passage of this resolution had the effect which had 
 been anticipated, and it satisfied the Government of the United 
 States that the State of North Carolina, after the expiration of 
 
ten years from the date of the treaty, still preserved her kind 
 parental policy towards this small remnant of the aboriginal 
 inhabitants of the State. 
 
 It has already been mentioned that unsuccessful efforts had 
 been made during two Administrations. As soon as Presi- 
 dent Polk came into office, application was made to him to do 
 justice to the North Carolina Cherokees, and he, following in 
 the footsteps of his predecessors, sent the application to the 
 Indian Office ; this, in course of time, was followed by another 
 rejection, from which an appeal was taken to the Secretary of 
 War, Governor Marcy, who referred the question to President 
 Polk. On the 11th of June, 18-15, he referred the questions 
 raised by me to the Attorney General for his opinion thereon. 
 During the summer of that year I went north, and obtained 
 the evidence of John F. Schermerhorn, the Commissioner who 
 concluded the treaty of 1835, which established the fact that 
 the North Carolina Cherokees were neither present or repre- 
 sented at the Council in Georgia that concluded the treaty, 
 which was filed in the case. 
 
 On the 19th day of September, 1845, the Attorney General 
 gave his opinion thereon, as follows : 
 
 "On the 11th of June last, you did me the honor to refer to me a report of 
 the Commissioner of Indian Affairs of the 19th of May, and a reply thereto of 
 Wm. H. Thomas, on behalf of Cherokee Indians, on ■which you desired my opin- 
 ion in writing. In a memorandum among the papers transmitted, there are four 
 questions propounded: 
 
 "1st. Are the Cherokees remaining in the State of North Carolina and Ten 
 nessee entitled, under the 8th and 12th articles of the Cherokee treaty of De 
 c ember, 1835, to $53 33 for their claims for removal and subsistence allowance, 
 which lias been paid to the Cherokees in Georgia? 
 
 "2d. In the event that the Attorney General should be of opinion that the 
 Cherokees in North Carolina and Tennessee are not entitled to compensation for 
 their claims, &c, whether the grant made by the State of North Carolina to 
 the Cherokee Indians, in the year 1783, vested the fee simple title in the In- 
 dians while they continued to reside thereon ; and whether, under the provi- 
 sions of the grant, the fee simple title has not vested exclusively in the Chero- 
 kee Indians within its limits? 
 
 " 3d. Whether the treaty of 1835, made with the Cherokee Indians of Georgia, 
 does or does not legally convey to the United States the lands granted to the 
 North Carolina Indians, by the act of 17S3? Whether the power of the Chero- 
 kees, as a nation, had or had not ceased to exist nt the lime the treaty of De- 
 cember, 1835, was concluded, in consequence of the tribe having passed under 
 the dominion of the State? 
 
 " ith. Whether the relinquishment of interest in the lands, which the treat}" 
 of 1835 purport *to convey, is or is not confined to those Cherokees who have 
 and do receive their due portion of the consideration money; and whether the 
 title of those who received no part of the compensation has passed to the United 
 States? 
 
 "The first of these involves an inquiry whether, under the treaty of New 
 Echota, those Cherokees who remained in the States of Tennessee and North 
 Carolina are entitled, under the 8th and 12th articles of the treaty, to $53 33 
 lor removal and subsistence allowance. 
 
 "This inquiry is embarrassed by the fact that those allowances have been 
 made to Cherokees who have remained in Georgia, by decisions at the War De- 
 
partment, and by the fact of payment being made to others of the tribe who 
 did not emigrate. By the joint resolution of Congress, approved June 15, 
 1844, the interpretation under which the Georgia Indians were paid appears 
 to have been acted on by the "War Department but for a short time, &c. 
 
 " In the papers accompanying your communication are several statements 
 furnished by the Commissioner who uegotiated the treaty on the part of the 
 United States, and by respectable persons Avho were privy to the negotiation 
 tending to show that the Indians were assured that those who did not migrate 
 should have the benefit of this pecuniary allowance. 
 
 "In its construction, it is said that the language used in treaties with Indians 
 should never be construed to their prejudice." * * * " How th e words of 
 the treaty were understood by this unlettered people, rather than their actual 
 meaning, should form the rule of construction. 
 
 "According to well-established rules of law, I am of opinion that this evi- 
 dence is inadmissible to establish a construction of the treaty inconsistent with 
 its provisions. Whatever may be done by Congress to fulfill expectations "thus 
 created, I am clearly of opinion that the Executive cannot execute the treaty 
 on any such construction. 
 
 "The other three questions may be solved into three inquiries: whether the 
 lands in North Carolina belonged to the North Carolina Indians residing upon 
 them. These lands have been sold by the State North Carolina, and are, I pre- 
 sume, in the possession of the purchasers. As the Executive of the United 
 States would have no power to divest those in possession, and the question is 
 one for the Judiciary, I have deemed it unnecessary to embrace my views upon 
 it in this communication. Nor have I deemed it proper to express my opinion 
 on the hard measure which seems to have been dealt out to the North Carolna 
 Indians, whose lands have been sold, while they have received no correspond- 
 ing benefit. I have examined the question as one of legal construction only, 
 and have no doubt of the correctness of my conclusion in that respect." 
 
 JOHN Y. MASON. 
 
 This opinion, on the 2d of October, 1845, was approved by 
 the President of the United States, who made the following 
 endorsement thereon : " I concur in opinion with the Attor- 
 ney General." 
 
 The following conclusions are deducible from the foregoing 
 opinion of the Attorney General and President of tne United 
 States : 
 
 1. That hard measures had been dealt out the North Caro- 
 lina Indians, whose land had been sold, for which they had 
 received no corresponding benefit. 
 
 2. That if the decision had been made upon the question 
 submitted, as respected the title of the United States to their 
 land, under the treaty of 1835, it would have been that it 
 was defective. For if it had not been believed that the deci- 
 sion, if made, would be as stated, the reason fot declining to 
 give it did not exist. 
 
 This opinion established a few additional facts favorable to 
 the Indians. 
 
 1st. That equity was in favor of construing the treaty as 
 understood by the parties ; and that it was left for Congress 
 to make good the promises which induced a submission to the 
 treaty. 
 
9 
 
 2d. That if the promises of the Government were not com- 
 plied with, the North Carolina Cherokees had a remedy, by 
 instituting a suit in the Supreme Court for the lands granted 
 to them under the act of 1783. 
 
 3d. That " hard usage had been dealt out to the North 
 Carolina Cherokees." In this he no doubt had reference to 
 the manner that the fund stipulated to be paid for the cession 
 of the land under the treaty of 1835, had been disposed of 
 without any equivilent to the North Carolina Cherokees. 
 
 For the lands owned by the tribe situated west of the Mississippi. $500,000 00 
 
 For a permanent national fund 404,000 00 
 
 For purposes of education 300,000 00 
 
 For orphan's fund 50,000 00 
 
 Paid to John and Louis Ross for removal and subsistance of the 
 Cherokees, more than the sum of $53 33, fixed by the Sth arti- 
 • cle of the treaty of 1832, as chargeable to the fund for these ob- 
 jects 581,846 SS 
 
 Also, the Government distributed per capita among the Western 
 
 Cherokees, paid out of the per capita fund 172,000 00 
 
 Making the aggregate sum of. $2,007,346 88 
 
 Out of $5,000,000 00 
 
 "With this state of facts, when the 12th article of the treaty, 
 as well as the explanatory agreement with the chiefs, provided 
 that the North Carolina Cherokees should receive " their due 
 portion " of the funds, it was not strange that the Attorney 
 General, as well as the President of the United States, should 
 admit that " hard measures had been dealt out to that portion 
 of the tribe." To remedy the injustice that had been done to 
 those Indians, President Polk transmitted the arguments in 
 their favor, accompanied by a map of the lands in North 
 Carolina and Tennessee, claimed by the North Carolina Chero- 
 kees, under the grant of 1783, to Congress on the 11th of 
 April, 1810, accompanied also with a recommendation in favor 
 of justice being done to the Indians. 
 
 The President's message, as* well as the papers relating to 
 the Cherokees, were printed under a resolution of Congress, 
 and. are referred to as a proof of the foregoing statement. 
 This lead to the appointment of commissioners, to conclude 
 a new treaty with the Cherokee tribe west, as a supplement 
 to the treaty of 1835. Efforts were made before the commis- 
 sioners, by General "Waddy Thompson, Attorney for the West 
 ern Cherokees, to have an article inserted which should de- 
 prive the North Carolina Cherokees of their portion of the 
 fund remaining to be distributed per capita. By permission 
 of the President, on the 3d of August, 1S16, I filed an argu- 
 ment before the commissioners in favor of the North Carolina 
 Cherokees, and in opposition to the insertion of an article to 
 exclude that portion of the tribe from a share of the small 
 
10 
 
 amount of per capita that remained to be distributed, under 
 the treaty of 1835. The commissioners decided in their favor, 
 and inserted the 10th article to protect their interest. 
 
 " It is expressly argued that nothing in the foregoing treaty contained shall be 
 so construed, as in any manner to take away or abridge any rights or claims of 
 the C'herokces, now residing in the States west of the Mississippi had or may have, 
 under the treaty of 1835, and supplement thereto. — (See treaty of 1846.) 
 
 As the last resort application was made to Congress to make 
 provision for the North Carolina Cherokees, in accordance 
 with the treaty of 1835, as understood by both, parties at the 
 time it was negotiated, which resulted in the passage of the 
 following act, which bears date 29th July, 1848 : 
 
 Sec. 4. Be it enacted, &c, " That the Secretary of War cause to be ascertained 
 the number and names of such individuals and families, including each member 
 of every family, of the Cherokee nation of Indians that remained in the State 
 of North Carolina at the time of the ratification of the treaty of Echota, May 
 twenty-three, eighteen hundred and thirty -six, and who have not removed west 
 of the Mississippi, or received commutation for removal and subsistence, and 
 report the same to the Secretary of the Treasury ; whereupon the Secretary of 
 the Treasury shall set apart, out of any moneys in the Treasury not otherwise ap- 
 propriated, a sum equal to fifty-three dollars and fifty-three cents for each indi- 
 vidual ascertained as aforesaid, and that he cause to be paid to every such indi- 
 vidual, or his or her legal representatives, interest at the rate of six per cent, per 
 annum on such per capita from the said twenty-third day of May, eighteen hun- 
 dred and thirty-six, to the time of the passage of this act, and continue annually 
 thereafter the said payment of interest at the rate aforesaid. 
 
 Under the recited act the census was taken, and the aggre- 
 gate sum of $80,901 51 was set apart in the Treasury as a 
 trust fund for the North Carolina Cherokees. 
 
 The foregoing act preparatory to making the payment of 
 interest was referred, on the 19th of January, 1850, to the 
 Hon. Albion K. Parris, Second Comptroller of the Treasury, 
 to settle the construction of the law. 
 
 On the 12th of January, 1850, his opinion was given thereon, 
 in which he says, after quoting the lav/: 
 
 u In case of the death of a person interested in the fund, the legal representa- 
 tive of such person would succeed to his right, and might claim the interest so long 
 as the find continued ; this is in accordance with the language of the 4dh section. 
 
 This opinion of the Second Comptroller, under the laws of 
 Congress establishing the Treasury Department, was final, and 
 it was not subject to any change by the Secretary of the Treas- 
 ury or the President of the United States. (See opinions of 
 the Hon. William Wirt, upon the power of the Comptroller 
 to settle the construction of the acts of Congress, vol. 1, page 
 624; vol. 4, page 221, of the Opinions of the Attorney Gene- 
 ral.) 
 
 The decision of Judge Parris, as to the construction of the 
 act of July 29, 184S, was approved and adopted by the Secre- 
 tary of the Treasury, the Hon. Thomas Corwin, as the instruo- 
 
11 
 
 tions to the disbursing officer prove. In the instructions that 
 were issued to C. M. Mitchell, the disbursing agent, under date 
 of July 14, 1851, it is stated: 
 
 " You will be governed by the following general principles : 
 
 '* To all the Indians of lawful age, now living, payment 
 of the respective sums due to each, to be made to the Indians 
 direct. 
 
 '"All sums due to minor children, now deceased, to be paid 
 to the parents, if living. 
 
 " In cases of deceased wife or husband, the amount due to be 
 paid to the survivor. 
 
 " In all such instances where the deceased left neither hus- 
 band nor wife, {as the case may be,) tJien to be paid to the legal 
 representatives these amounts." 
 
 Under the instructions the interest due to the North Caro- 
 lina Cherokees was paid by the agent, and his accounts settled 
 by the accounting officers of the Treasury Department. 
 
 It was, in a few years, discovered, that to continue the pay- 
 ment of. interest, as provided by the act referred to, for an 
 indefinite period, would be attended with much inconvenience. 
 Hence, preparatory measures were adopted by Congress, in 
 1855, to pay over the trust fund of the North Carolina Chero- 
 kees, provided that they would consent to receive it. 
 
 And be it further enacted, "That the Secretary of the Interior is hereby au- 
 thorized and required to cause to be paid to the North Carolina Cherokees. em- 
 braced in the roll of John C. Mulloy, or the legal representative of each of 
 them as have died since their enrollment, the sum of fifty-three dollars and thirty- 
 three cents, respectively, for the expenses of their removal and subsistence, note 
 held in trust by the United States, according to the terms of the 4th section of the 
 act of twenty-ninth Jidu, anno domini eighteen hundred and forty-eight, Provided: 
 That each and every Indian so receiving such payment, made in full, shall give 
 his assent thereto; And, provided further, That the Secretary shall be first sat- 
 isfied that the State of North Carolina has, before such payment, by some appro- 
 priate act, agreed that the said Cherokees may remain permanently in the State ; 
 anything in tiie treaty of eighteen hundred and thirty- five-six to the contrary, 
 notwithstanding." 
 
 Since the passage of the recited act, by Congress, the State 
 of North Carolina has not deemed it necessary to legislate on 
 the subj ect. With her it is a matter of no consequence whether 
 the Government of the United States retains or pays over the 
 fund held in trust for the North Carolina Cherokees. Nor is 
 it probable that her Legislature, after what has already been 
 done, deems it necessary to legislate further on the subject. 
 She has acquiesced in the Cherokee treaties of 1817, 1819, 
 1835, and 1816, which secured those Indians the right 10 re- 
 main in the State, which, agreeably to the decision of her 
 Supreme Court, as expressed in the case of Euchelhi vs. AVelch, 
 th> >se treaties and the rights acquiesced under them were held 
 
12 
 
 to be the paramount law of the land, under the Constitution 
 of the United States " anything in the laws of a State to the 
 contrary, notwithstanding." 
 
 And not only the Supreme Court of the State had decided 
 that the effect of those treaties was to confer rights of citizen- 
 ship on the Cherokees, which could not be abrogated by any 
 act of the State — but the State, instead of opposing these 
 rights, acquiesced under the treaties, and sanctioned their resi- 
 dence in the State. If she had been opposed to those Indians 
 remaining, would she, in 1836, have passed a law for their 
 protection, to extend to all such individuals as remained in the 
 State? Would she, in 1845, have passed a resolution "re- 
 questing her Senators and Representatives in Congress" to use 
 their influence in favor of having justice done to those Indians? 
 And would she, at the same session, have passed an act au- 
 thorizing those Indians residing in Jackson county, which 
 constitutes the principal settlement in the State, to form them- 
 selves into an incorporated company, under the seal of the 
 State, to purchase and hold lands for the term of ninety-nine 
 years, under the name of the " Cherokee Company ?" And 
 after protecting those Indians for near a quarter of a century, 
 without any attempt on her part to have them molested in 
 any way, it is quite probable that she may not deem further 
 legislation necessary. 
 
 Xor is it probable that the State would be willing to re- 
 ceive the trust fund, and incur the expenses incident to dis- 
 tributing the interest, now incurred by the United States, 
 which, including clerk-hire in the Departments, very proba- 
 bly exceeds ten per cent, on the fund. And this must be 
 greatly increased, as the Indians, whose funds were set apart 
 in the Treasury, die ; and the small sum to which each indi- 
 vidual is entitled, $3,19 has to be divided among their heirs. 
 Scattered, as a large portion of them now are, over a territory 
 not less than three hundred miles in circumference, and 
 besides the difficulty of making payment, in consequence 
 of the smallness of the sum and the great distance they have 
 been separated. There is another of identity, which will 
 give much trouble. Amalgamation has been going on until 
 even a clerk, sent from the Indian Office, has been unable to 
 report whether or not there is enough Indian blood in some 
 families to be considered Indians, as he was unable to distin- 
 guish them by color. And even the few full-blood Indians 
 remaining in the country, as the census of 1850 prove, are 
 further advanced in civilization than any tribe west of the 
 Mississippi. 
 
 They have among them farmers, shoemakers, blacksmiths, 
 gunsmiths, coopers, chairmakers, wheelwrights, house-carpen- 
 
13 
 
 ters, &c. And the females have learned to card, spin, and 
 the use of the hand-loom, by which they manufacture their 
 clothing. And one of the best churches in the county of 
 Jackson, was built by those Indians. They not only practice 
 the mechanic arts for their own people, but for the whites ad- 
 jacent, to their settlements. They, however, principally live 
 by agriculture, and not only make a support for themselves, 
 but make a surplus which is sold to the whites. A larger 
 portion of these Indians can read the scriptures than can be 
 found among the white population in three-fourths of the 
 States, as shown by the census of 1850. They have their 
 own preachers, who teach them the divine instructions of the 
 Bible, and to worship that Supreme Being, who made the 
 red as well as the white man. Those Indians, enrolled under 
 the act of July 29, 1848, and their descendants, while a por- 
 tion of them, like all other communities, are very poor in the 
 aggregate, they probably own not less than a quarter of a 
 million of dollars in property, &c, and should any portion of 
 them in future desire to unite with the tribe west, it is quite 
 probable that the sale of their lands east will furnish the 
 means of removing them to the Cherokee country west, in 
 which they have a common interest. But, in addition to the 
 rights that those people have under the treaties and laws, as 
 admitted by the State, which are sufficient to protect them 
 under a writ of habeas corpus against molestation from any 
 quarter, their rights to remain have been reorganized by the 
 Government of the United States, not only in the act of July 
 29, 1848, but in the decisions of the Executive, for near a 
 quarter of a century. The last decision of the Executive 
 branch of the Government was given by the Hon. John J. 
 Crittenden, when Attorney General of the United States, on 
 a question raised by the Commissioner of Indian Affairs. 
 This opinion bears date 11th April, 1851, in relation to the por- 
 tion of the tribe then remaining in the States east of the 
 Mississippi river. 
 
 Permission was granted to file an argument in defence of 
 the rights of the North Carolina Cherokees. A quotation 
 from it explains the attachment of those people to their 
 native country and their deep regret at the continued indi- 
 rect invasion of their rights, emanating from the Indian office. 
 
 In speaking of* the condition of the North Carolina Chero- 
 kees, and the country occupied by them, it is stated — 
 
 "That country is endeared to those Indians by the graves and sacred relics 
 of their ancestors; the bones of their children, sisters, brothers, fathers, and 
 mothers, lie there; they say, 'We cannot leave them; let us alone in the laud 
 of our fathers. Why ask us to remove West? We once owned all the lard 
 that could be seen from the tops of our highest mountains ; will you not permit 
 us to enjoy in peace the small quantity we have purchased ?' They ask, 
 
u 
 
 'Where are our brothers, who were* forced from the mountains of North Caro- 
 lina? Two-thirds have been buried on the road to Arkansas, and in that sickly 
 country. Where are the Ridges and Boudinots, who were promised the protec- 
 tion of the United States? Have they not been massacreed ? Their blood 
 cries from the ground. Where are the midnight assassins ? Have they not 
 been pardoned by the Cherokee Government, without trial, contrary to both 
 law and treaties? Will you then ask us to remove, and join a Government too 
 weak and too unjust to protect us, and leave a State where our lives, libeities, 
 and property, are secured? — where our rights to remain are guarantied by sol- 
 emn treaties?' " 
 
 Fortunate for the Indians in the office of the Attorney Gen- 
 eral was found too high a regard for justice, and the sacred 
 obligations of treaties to favor the policy proposed by the re- 
 puted Father of the red man of the forest, as the opinion 
 demonstrates : 
 
 " Question fourth : ' If any of the Cherokees who have not removed west of the 
 Mississippi river are entitled, may they be required to emigrate, as a condition 
 precedent to their being paid?' Answer: The treaty of 1835, article twelve, 
 conceded the rights of individuals, and families of Cherokees, who were averse 
 to the removal to the Cherokee country west of the Mississippi, to remain east, 
 and to receive their due portions of the money to be distributed per capita. 
 The treaty of 1846, article ten, recognised these claims of the Cherokees then, at 
 the date of the treaty, residing east of the Mississippi river. On this subject I 
 have hereinbefore expressed my views. To require these Indians, so residing 
 east of the river Mississippi at the date of the treaty of August, 1 846, to remove 
 to the Cherokee country west, as a condition precedent to their being paid their 
 dividend per capnta of the balance of the purchase money for the lands east of 
 the Mississippi river, ceded by their nation to the United States, would be 
 without any authority of law, and a breach of the faith of the treaties of 1835 
 and 1846, as I think and firmly believe. 
 
 " Very respectfully, yours, &c, 
 
 JOHX J. CBITTENDEX. 
 
 Since the foregoing opinion was given, the policy of the 
 Government of the united States has undergone a change, 
 and instead of moving the Indian tribes from place to place 
 as formerly, to keep them from coming in contact with the 
 white population, the policy of the Government is, as it should 
 be, to encourage the Indians in the pursuits of agriculture and 
 civilized life in the country they occupy. To complete this 
 policy the Indian territory if formed into a state where the 
 Indian tribes could enjoy all the political and social rights of 
 the white race, would hold out a strong inducement for the 
 scattering individuals of the tribes remaining in the states to 
 join their brethren west. But even supposing that to take 
 place, and that any portion of the Cherokees remaining east 
 should desire to go west, it would be a voluntary removal of 
 the Indians, with which all their friends would be satisfied 
 and the Indians themselves could not justly complain. 
 
 In conclusion, I beg leave to refer the Committee to the 
 objects designed to be effected by the passage of a law em- 
 bracing the principles contained in the resolution now under 
 consideration. 
 
15 
 
 1st. A fixed period, the 29tli of July, will be established to 
 estimate the interest due the iSTorth Carolina Cherokees. 
 This, it is presumed, will lead to some regularity in the pay- 
 ment of interest upon so much of the trust funds as may 
 remain in the Treasury on that day. 
 
 Hitherto, for more than half the time since the fund was 
 set apart in the Treasury, great irregularity has prevailed in 
 the payment of the interest due under the act of July 29, 
 1848. And at this time there is probably not less than eleven 
 thousand dollars of the interest due unpaid. The passage of 
 a law fixing a time of payment, and calculating interest upon 
 what remains unpaid at that time, would tend to prevent those 
 continued delays in making payment, which are no doubt 
 measurably caused by a desire to avoid the trouble of prepar- 
 ing the pay roll, and making payment of those small sums to 
 the great numbers of the legal representatives. Because it 
 would be a slander on the Government to suppose that the 
 payment of interest was withheld with a view of gradually 
 embezzling any part of the funds held in trust for the In- 
 dian tribes, or the interest due thereon. 
 
 After teaching the Indians to look up to the head of the In- 
 dian Bureau as Father, to the Secretary of Interior as Great 
 Father, and to the President of the United States as Great 
 Grand Father, to attempt, under any pretext, to set up a claim 
 to either their trust funds or interest, would tend to destroy 
 the confidence of all the tribes in the Government of the 
 United States, and the relation of Father, Great Father, and 
 Great Grand Father would soon change, and their influence 
 over the Indian tribes cease to exist, and they would justly 
 become the enemies, instead of friends, of the Government. 
 
 2d. The Secretary to pay over the principal and interest 
 that has accrued due to the deceased Cherokees, embraced in 
 the census roll, to their legal representatives. And in case of 
 their having no lawful heirs, to be equally divided among the 
 survivors on the census roll, or their legal representatives. 
 This would obviate the difficulty of making payments in cases 
 where the sum would be too small for the claimants to come 
 to the agent after it, and too expensive for the Government 
 to send it to them. 
 
 3d. By providing that the distribution of interest shall be 
 in accordance with the laws of the State, the uncertainty of 
 Indian customs, in the distribution of estates, would be avoided, 
 which, since those Indians have abandoned polygamy, becomes 
 important in the distribution of estates, and by confining it 
 to those remaining in the State, and in case a family becomes 
 
16 
 
 extinct, by dividing the funds among the survivors, the proper 
 persons will receive it for whom it was intended. 
 
 But if the Government prefers to retain the fund to paying 
 it over, all that is asked on the part of the Indians is, that ar- 
 rangements shall be made to pay over the arrearages of in 
 te,rest due, and, in future, provide that interest shall be paid 
 on all the money that remains unpaid on the 29th of July in 
 each year. The Government cannot reasonably complain of 
 paying the interest provided by law for the use of the fund 
 held as trustee for the- Indians; and when she fails to pay the 
 interest, to pay over the principal. Equity and good faith re- 
 quire that one should be done without unreasonable delay. 
 And as to the remainder of the trust fund, the Secretary of the 
 Interior is already authorized to pay it over, under the act of 
 1855, when he shall be satisfied that North Carolina has as- 
 sented to the Indians remaining permanently in the State. 
 
 Iiespectfully submitted, 
 
 WE H. THOMAS. 
 
This book must not 
 be taken from the 
 Library building. 
 
 Form No. 471