MEMORIAL OF THE HEIRS OF FAMILIES 
 OF THE CHEROKEE NATION 
 
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THE LIBRARY OF THE 
 
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 ENDOWED BY 
 
 JOHN SPRUNT HILL 
 CLASS OF 1889 
 
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 30th Congress, [HO. OF REPS.] Miscellaneous. 
 
 1st Scs.4o7i. No. 8. 
 
 CHEROKEE INDIANS. 
 
 ^ 
 
 MEMORIAL 
 
 THE HEIRS OF FAMILIES OF THE CHEROKEE NATION OF INDIANS, AND 
 THE CHILDREN OF THEIR HEIRS AND REPRESENTATIVES, 
 
 Redress for the rvrongs and injuries they have suffered by the officers of 
 the United States in relation to cer'tain reservations and pre-emptions of 
 lands, and indem?iities for improvenients and spoliations. 
 
 January 4, 1S4S. 
 Read, and referred to the Committee on Indian Affairs. 
 
 To. the Jionorahle the Senators and members of the House of Representa- 
 tives of the United States of America in Congress assembled: 
 
 The memorial of the heads of famiUes of the Cherolvee nation of In- 
 dians, and their children and their heirs and representatives, who, under 
 treaties between the United States and the Cherokee nation, became en- 
 titled personally to certain reservations and pre-emptions of lands, and in- 
 demnities for improvements and spoliations, &c., most respectfully repre- 
 sents to yon the wrongs and injuries which have been done to them by 
 the agency of the Department of War, and the instru'-nentality of the 
 Commissioner of Indian Affairs, in violation of the gool faith of the Uni- 
 ted States, and in breach of the faith of solemn treaties signed and con- 
 cluded between the United States and the Cherokee nation. 
 
 Your memorialists are far from intending to iippnte to the Congress of 
 the United States, or the several Presidents of die Unifed States, under 
 whose administrations, respectively, these w)Ongs were begun and con- 
 tinued, any direct participation in, or knowing assent to, these wrongs 
 and oppressions so committed by their suiordiuates. But, from the ex- 
 amples of the past, a preservative caution .^n- the future requires that your 
 honorable body and the President of the llnited States should be distinctly 
 informed of the wrongs which have K^'cn inflicted on your memorialists, 
 so that the attention of the Congress and the head of the executive de- 
 partment, and of the Senate, as a component part of tlie executive depart- 
 ment, may be awakened to exei't the powers and authorities in them 
 respectively vested by the constitution of the United States, so that the 
 subordinate officers of an executive department may not in future use the 
 power and influence of the executive by surreption, and that the evils 
 which have been caused by the past may be redressed. 
 Tippin & Streeper, printers. 
 
 
 ^^ 
 
2 Mis. No. 8. 
 
 By the treaty between the United Stales and the Cherokee nation of 
 Indians, conckided and signed at Hopewell on the 28th day of November, 
 1785, (Laws U. S. vol. l,Bioren's edition, p. 322,) the United States received 
 the Cherokees " into the favor and protection of the United States of 
 America," and "the said Indians, for themselves and their respective 
 tribes and towns, do acknowledge all the Cherokees to be under the pro- 
 tection of the United States, and of no other sovereign whatsoever." By 
 the 4th article the boundary of the Cherokees was defined. By article 9, 
 " for comfort of the Indians, and for the prevention of injuries and oppres- 
 sions," the United States in Congress assembled are to have the sole right 
 of regulating the trade Avith the Indians, and managing their affairs. By 
 article 12, "that the Indians may have fnll confidence in the justice of 
 the United States, respecting their interests, they shall liave tlie right to 
 send a deputy of their choice, whenever they think fit, to Congress " 
 
 By the treaty concluded and signed at Holston July 2d, 1791, (1st vol. 
 Laws U. S., Bioren's edition, p. 326,) the stipulations respecting protec- 
 tion and regulating the trade were repeated. Article 4 defined the Chero- 
 kee boundary, so as to cede to the United States a part of their country, in 
 consideration of an annuity. 
 
 Article?, " the United States solemnly guaranty to the Cherokee nation 
 all their lands not hereby ceded." 
 
 Article 14 relates to the assistance to be given by the United States to 
 the Cherokees to become herdsmen and cultivators of the earth, instead of 
 remaining hunters. 
 
 By the treaty concluded and signed 2d October, 1798, near Tellico, 
 (Laws U. S., vol. 1, p. 331, Bioren's edition,) the Cherokees ceded a part 
 of their country, in consideration of an annuity, and of " the guarantee of 
 the remainder of their country forever, as made and contained in former 
 treaties , ' ' 
 
 Other treaties (and cessions of lands) between the United States and the 
 Cherokees were concluded and signed — 
 
 1804, Ociober24, at Tellico, not ratified by the Senate until 17th May, 
 
 1824, (see vol. 7, p. 713, of Laws U. S., Bioren's edition.) 
 
 1805, October, at TeUico, (vol 1, p. 335-337, of Bioren's edition.) 
 
 1806, January 7th, at Washington, (vol. 1, p. 338, of Bioren's edition.) 
 
 1807, Septembeillth, at Chickasaw Old Fields, (vol 1, p. 340, of Bio- 
 
 ren's edition.) 
 
 1816, March 22d, at Washington, (vol. 6, p. 684, of Bioren's edition 
 Laws U. S.) 
 
 1816, September 14, at Chickasaw council-house, (Bioren's edition 
 LawsU. S., vol.6, p. 686.) 
 
 By the treaty between the United States and the Cherokee nation of In- 
 dians., concluded and signed at the Cherokee agency on the Sth July, 
 1817, (Laws U. S., vol. 6, p. 7'02, Bioren's edition,) it was recited, that 
 a part of the Cherokees were desirous to engage in agriculture and the pur- 
 suits of civilized life, and anothei.part desired to remove west of the 
 Mississippi on vacant lands of the United States; that the United States 
 desired to satisfy both parties; the Ch^^irokees were willing to cede to the 
 United States a part of (heir country eas'i of the Mississippi river, propor- 
 tioned to the numbers of tlie Cherokees who have removed and are about 
 to remove west on the Arkansas river; therefoie the Cherokee nation ceded 
 to the United States two parcels of their lands described in the first and 
 second articles of the treaty. 
 
Mis, No. 8, 3 
 
 By the third article a census was to have been taken during the month 
 of June, ISIS, of the whole Cherokee nation; the census of those on the 
 east side of the Mississippi, who declare their intention of removal west to 
 Arkansas, to be taken by a coniinissioner appointed hy the President of 
 the United States, and a commissioner appointed by the Cherokees on the 
 Arkansas river; and the census of the Cherokees on the Arkansas, and 
 those removing there, and who at that time declare their intention of re- 
 moving there, shall be taken by a commissioner appointed by the United 
 States, and one appointed by the Cherokees on the east side of the Mis- 
 sissippi river. 
 
 By article 4, the annuities due to the whole Cherokee nation to be di- 
 vided between the Cherokees east and the Cherokees west, in proportion 
 to ihei-r numbers, agreeably to the stipulations in the third article; ''and the 
 lands to be apportioned and surrendered to the United States, agreeably to 
 the aforesaid enumeration, as the proportionate part, agreeably to their num- 
 bers, to which those who have removed, and who declare their intention 
 to remove, have a just right, including these with the lands ceded in the 
 first and second articles of this treaty," 
 
 By article 5, the United States agreed to give the Cherokees west, lands 
 on the Arkansas river, at the mouth of Point Removed , in exchange, acre for 
 acre, for the lands ceded in the first and second articles, and for the lands 
 the United States have^ or may hereafter receive^ from the Cherokee nation 
 east, as the just proportion due that part of the nation on the Arkansas 
 river, agreeably to their numbers. 
 
 By article 7, the United States agreed to pay for all improvements which 
 added value to the lands ceded to the United States within the boundaries 
 expressed in the first and second articles, to be valued, &c. 
 
 By article 8, it is agreed and declared as follows: " To each and every 
 head of any Indian family residing on the east side of the Mississippi 
 river on the lands that are now, or may hereafter be, surrendered to tlie 
 United Slates, who may wish to become citizens of the States, the United 
 States do agree to give a reservation of 640 acres of land in a square, to 
 include their improvements," in which they shall have a life estate, 
 with ^'a reversion in fee simple to their children, reserving co the widow her 
 dower," whose names are to be ''filed in the office of ^fie Cherokee agent, 
 whose office is to be kept open until the census is taken, as stipulated in 
 the third article of this treaty: Provided, Tha^f if any of the heads of 
 families should remove therefrom, the right to revert to the United States: 
 And provided, further, That the land which may be reserved under this 
 article be deducted from the amount which has been ceded under the first 
 and second articles of this treaty." 
 
 Under this Sth article, heads' of Iirdian families, designating the nimiber 
 of whom the family \tas composed, (consisting of the head, the wife 
 where there was one, and the children if there were any,) showing the 
 aggregate of the familj'-, were duly registered according 'o the treaty with 
 the Cherokee agent appoi-'Jted by the United States; which register was 
 filed, and is now remaining in the office of Indian Afliiirs, whereby they 
 became duly entitled to reservations under the said treaty of ISIT. 
 
 On the 2Tth February, 1S19, another treaty was made at the city of 
 Washington, (6th vol. Laws U. S., Bioren's edition, p. T4S,) by which 
 the census alluded to in the treaty of ISlT (which had not been taken) 
 was dispensed with, and the Cherokees ceded an additional part of their 
 
4 Mis. No. 8. 
 
 country to the United States, ])y boundaries Iherein described, upon the 
 terms and for the considerations therein at large appearing; whereof, these 
 in particular are pertinent to the present subject; 
 
 By article 1st, the United States accepted the lands so therein described 
 and ceded by the Cherokees, " in fiill satisfaction of all claims which the 
 United Slates have on them, on account of the cession to a part of their 
 nation who have or may hereafter emigrate to Arkansas; and this treaty is 
 d. final adjustment of that of the eighth of July, eighteen hundred and 
 seventeen." 
 
 By article 2d, the stipulations on the part of the United States, contained 
 in the treaty of 1S17, to pa.y for all the improvements of those Indians who 
 removed to Arkansas, which added real value to the lands within the terri- 
 tory ceded to the United States, were renewed, and reservations were given 
 to each head of an Indian family residing within the ceded territory, (those 
 enrolled for Arkansas excepted,) who chose to become citizens of the 
 United States, in the manner stipulated in that treaty, as at large appears 
 in the second and third articles. 
 
 By the 5th article the United States stipulated, " that all white people 
 who have intruded, or may hereafter intrude, upon the lands reserved for 
 the Cherokees, shall be removed by the United States, and proceeded against 
 according to the provisions of the act passed thirtieth of March, eighteen 
 hundred and two, entitled 'An act to regulate trade and intercourse with 
 the Indian tribes, and to preserve peace on the frontiers.' " — (Vol. 3, 
 Bioren's edition, p. 4(32, sec. 5.) 
 
 On Gth May, 1828, (vol. 8, of Bioren's edition, p. 1011 ,) another treaty 
 was concluded and signed at Washington, betv\^een tlie United States and 
 the Cherokee nation west, by which, among other things, to induce the 
 Cherokees remaining in the States under the treaties of 1817 and 1819 to 
 remove and join their brethren in the country on the Arkansas river west 
 of the Mississippi river, ceded by the United States to liie Cherokee nation, 
 it was agreed, " on the part of the United States, that to each head of 
 a Cherokee family now residing within the chartered limits of Georgia, or 
 of either of the States east of the Mississippi, who may desire to remove 
 west, shall be given, on enrolling himself for emigration, a good rifle," 
 &.C., &c.; " also, 3 just compensation for the property he may abandon, 
 to be assessed by persons to be appointed by the President of the United 
 States. The cost of tlie emigration of all such shall be borne by the 
 United States," &c , &c., as by the 8th article of that treaty at large 
 appears. Under this treaty some of the heads of Indian families enrolled 
 for removal, and did remove to Arkansas, with their faniilies. 
 
 The white people intruded on the lands reserved to the Cherokees, as 
 well on the national domain of the Cherokees, as on the particular tracts 
 reserved in fee simple to the heads of families, under the treaties of 1817 
 and 1819. The State of Georgia passed laws to deprive the Cherokees of 
 their lands and of their domain; to sell ah the lands within the hmits of 
 the State of Georgia, as of the public domain, to extend the laws of Geor- 
 gia over the lands reserved either to the families of Cherokees, or to the 
 Cherokee nation; to put down the laws and customs of the Cherokees, 
 and to subject their persons and property within the limits claimed by the 
 State of Georgia to the laws of that State, as will be seen at large by refer- 
 ence to the several statutes enacted by the legislature of Georgia; copies 
 whereof are deposited and remaining in the office of the Department of 
 State, at Washington. 
 
Mis. No. 8. a 
 
 For removal of the white people who had obtruded, in numbers, under 
 the laws of Georgia, upon the lands reserved to the Cherokees, application 
 was made to the President of the United States for redress, by executing 
 the provision contained in the otli article of the treaty of 1819, and the 
 law of the United States therein referred to and promised to be enforced. 
 Such redress was not granted; neither the treaty, nor the law enacted by 
 the Congress in that behalf, was execttted. 
 
 An application was made by the Cherokee nation, by bill in eqttity, to 
 tlie Supreme Court of the United States, against the State of Georgia, for 
 relief, by injunction against the execution of the acts of Georgia of 1S2S 
 and 1829, as contrary to the constitution of the United States and the 
 treaties and laws of the United States made in pursuance thereof, and for 
 general relief. No redress v/as granted to any extent by the Supreme 
 Court, because tho Cherokee nation was not a foreign State in the sense 
 in which that term is '^ used in the constitution of the United States, and 
 cannot maintain an action in the coiirts of the United States against a 
 State ; that the Cherokees v/ere a domestic dependent nation, in a state of 
 pupilage, their relation to the United States resembling that of a Avard to 
 iiis guardian." 
 
 The wrongs and grievances detailed in that bill, for which the Cherokees 
 sougiit redress, are but too true and notorious. To that case, decided by 
 the Supreme Court, January term, 1831, reported in 5 Peters, p. 1 to 80, 
 reference is made for the particular injuries and wrongs then done and 
 threatened to be done to the Cherokees, and for the reasoning of the jus- 
 tices of the Supreme Court as to the rights of the Cherokees, the wrongs 
 done them, and the grounds ttpon which the court declined to entertain 
 jurisdiction. 
 
 These v/rongs by the people of Georgia were followed by an act of their 
 legislature of December, 1833, to regulate Indian occupancy, or rather to 
 dispossess the Cherokees of their houses, lands, improvements, and pos- 
 sessions within that State. 
 
 By the example of what had been begun and acted in Georgia against 
 the Cherokees, others of the States passed laws to sell out, as of the pub- 
 lic domain of the State, the reservations made to Cherokee families by the 
 treaties of 1817 and 1819, and all tlie lands of the Cherokees within the 
 limits of their respective States, in consequence of these laws of the 
 several States, many Cherokee families were forcibly dispossessed, their 
 houses pulled down over their heads, and threats of personal violence 
 made, if they did not depart from their houses, improvements, and lands. 
 A general sense of insecurity and danger pervaded the Cherokees, as well 
 tiie fam?lics having elected to become citizens of the United States and re- 
 siding on their lands reserved to them by the treaties of 1817 and 1819, as 
 the families residing on the unceded lands lying vv^thin the limits claimed 
 by tiie States respectively. Agents of the United Stales had in some in- 
 stances sold the lands reserved to Indian families. 
 
 For these accumulated and accumulating wrongs the Cherokees again 
 applied to the President of the United States for fulfilment of the 5th arti- 
 cle of the treaty of 1819, by removing the intruders, according to the stip- 
 ulations of the treaty and the law of 1802. By the agreement and ces- 
 sion entered into on (he 4th April, 1802, between the United States and 
 Georgia, the federal government had incurred certain ex|)ress obligations to 
 ihe State of Georgia, recited in the second, third, and fourth conditions of 
 
6 Mis. No. 8. 
 
 the cession made by Georgia to the United States of the JurlsdictioiT,- soil. 
 and domain of the lands described in the first article, and particularly 
 "that the United States shall, at their own expense, extinguish, for the- 
 use of Georgia, as early as the same can be peaceably obtained on reason- 
 able terms, the Indian title " to all the lands within the State of Georgia. 
 The relation between the federal and the State governments, their relative 
 powers, authorities, and rights of jurisdiction, domain and sovereignty, 
 seemed to impose an implied obligation and trust upon the federal govern- 
 ment to exercise the treaty making power for the welfare of the States, re- 
 spectively^, by extinguishing the Indian title; and not to their prejudice, by 
 divesting them of their jurisdiction over the lands lying within their re- 
 spective limits, by granting them out to individuals, and introducing with- 
 in the State another governm.ent, with a guarantee on the part of the Uni- 
 ted States of protection to this imperium in iwperio. These obligarions- 
 express and implied, to the several States, when compared with the treaties 
 of Hopewell in 17SS, and Holston of 1791, and of ISIT and 1819 with 
 the Cherokees, seemed to have placed the federal government in the atti- 
 tude of having incurred inconsistent obligations to the States of Georgia^ 
 North Carolina, and Tennessee on the one hand, and the Cherokee nation 
 and to individuals of the Cherokee race on the other. Under these cir- 
 cumstances, tlie task of executing the treaty of 1819 by removing the 
 white people who had intruded, under color of the laws of the several 
 States, and under color of sales by the United States, upon the lands of 
 the Cherokees, also was beset with difficulties and responsibilities. 
 
 To appease the Cherokees by inviting them to another treaty, in which 
 provision should be made for redressing all their wrongs, was more easy 
 than to fulfil the treaties which had been made with the Cherokees, there- 
 by to arouse the people and the powers and authorities of the several 
 States who had granted out the lands as parcels of their domain, contrary 
 to the treaties of the United States with the Cherokees. 
 
 With a view to adjust and terminate these difficulties, a negotiation Avas 
 set on foot in February, 1835, which ended in the treaty of New Echota, 
 signed by William Carroll and J. F. Schermerhorn, commissioners on the 
 part of the United States, and by Major Ridge, James Foster, Stand Wa- 
 tie, John Ridge, and others, on the part of the eastern Cherokees, and by 
 James Rogers and John Smith on the part of the western Cherokees, (voL 
 9 Laws U. S., Bioren's edition, p. 1339;) to which articles, as originally 
 signed, five supplemental articles were concluded and signed on the first 
 of March, 1836, ratified by the Senate with amendments, and promulga- 
 ted by proclamation of the President of tlie United States of the 23d 
 May, 1836. 
 
 The compensations and indemnities, considerations and inducements^ 
 to the Cherokees, by the United States promised, will appear at large by 
 reference to the treaty. 
 
 The 12th article promised pre-emptions of 160 acres of land to such 
 heads of Cherokee families as desired to reside Avithin the States of North 
 Carolina, Tennessee and Alabama, subject to their laws. 
 
 Article 13 provided that all tlie Cherokees, their heirs or descendn^its, to 
 whom any reservations have been made under former treaties, and who 
 had not sold or conveyed the same, and which reservations have been sold 
 by the United States, shall be entitled to compensation at the present valufc 
 of the lands: 
 
Mis. No. 8. 7 
 
 All reservations not sold by the United States, to which the families 
 were entitled, were confirmed: 
 
 Reservees, obliged by the laws of the States to abandon them, or pur- 
 chase them from the State, to be entitled to the present value of the land 
 abandoned, or to the purchase paid, as the case may be. 
 
 Article 16 stipulated that the Cherokees should have two years from the 
 ratification of this treaty to remove to their new homes; during which 
 time the United States " shall protect and defend them in their possessions 
 and property, and free use and occupation of the same;" and persons 
 '' dispossessed of their improvements and houses, and for which no grant 
 has actually issued previously to the enactment of the law of the State of 
 Georgia of December, 1S33, to regulate Indian occupancy, shall be again 
 put in possession, and placed in the same situation and condition, in refer- 
 ence to the laws of Georgia, as Indians not dispossessed; and if this is 
 not done, and the people are left unprotected, then the United States shall 
 pay the several Cherokees for their losses and damages sustained by them 
 in consequence thereof." 
 
 By the first supplemental article "all the pre-emption rights and reser- 
 vations provided for in articles twelve and thirteen shall be, and are here- 
 by relinquished, and declared void." 
 
 By the third supplemental article the sum of ,v>GOO,000 was allowed to 
 the Cherokees, to include the expense of removal, &c., ''and to be in lieu 
 of the said i-eservations and pre-emptions, and of the sum of 8300,000 for 
 spoliations," &c. " This sum to be applied and distributed agreeable to 
 the provisions of the said treaty," etc. 
 
 By the ITth article " all the claims provided for in the several articles of 
 this treaty shall be examined and adjudicated by General William Carroll 
 and John F. Schermerhorn, or by such commissioners as shall be appoint- 
 ed by the President of the United States for that purpose; and their deci- 
 sion shall be final; and on their certificate of the amount due the several 
 claimants, they shall be paid by the United States. All stipulations in 
 former treaties which have not been superseded and annulled by this, shall 
 continue in full force and virtue." 
 
 This article was amended in the Senate by striking out the names of 
 the commissioners, General William Carroll and John F. Schermerhorn, 
 and giving the appointment of the counnissioners to the President of the 
 United States, by and with the advice and consent of the Senate. 
 
 The Senate struck out article 20. When so amended, the treaty was 
 declared ratified and obligatory by proclamation of the President of the 
 United States on 23d May, 1836, without submitting the amendments to 
 the Cherokees for their consent. 
 
 The treaty of New Echota upon its face promises compensations and 
 indemnities to the Cherokees, on account of failures of the United States 
 to fulfil stipulations and engagements in former treaties. Faithful memo- 
 rials of past events but too well attest the wrongs and injuries the Chero- 
 kees have endured in consequence of the failure of the United States to 
 perform their engagements to them. 
 
 By treaties between the United States and the Cherokees, the United 
 States have acquired cessions of all the lands of the Cherokees east of the 
 Mississippi river, described in the treaty of Hopewell; tlie Cherokees have 
 removed west to the river Arkansas, and have faithfully performed and 
 fulfilled their engagements to the United States; and yielded their lands in 
 
, Mis. No. 8. 
 
 Georgia, North Carolina, Tennessee, and Alabama, according to the treaty 
 of New Echota. 
 
 Notwithstanding eleven years and more have elapsed since the ratifica- 
 tion of the treaty of New Echota was proclaimed, very many of the com- 
 pensations and indemnities promised by that treaty are yet unpaid and 
 unperformed, although the Cherokees have been anxiously seeking their 
 dues. The Cherokees can take no pleasure in a recital of those wrongs; 
 but have an earnest desire, and abiding confidence, that the blot which 
 has happened by the past will be effaced and purified by the future; that 
 the engagements of the United States to the Cherokees, in the several ar- 
 ticles of the treaty of New Echota, will yet be interpreted in candor and 
 performed in good faith. 
 
 To that end it is necessary and proper that the past shall be brought to 
 open view, examined, repreliended, and amended. 
 
 The means by which the fulfilment of the treaty of New Echota, on the 
 part of the United States, has been delayed and hindered by the executive 
 department, may be comprised under the following heads: 
 
 1. The powers assumed and exercised by the Commissioner of Indian 
 Affairs in issuing instructions and directions to the court of commissions 
 as to the principles upon which they should adjudicate, and how they 
 should not adjudicate; instructing them that whole classes of claims should 
 be rejected, and in other respects dictating to the commissioners; v/hich 
 assumption of powers, and instructions from time to time given, were ille- 
 gal, insidious, contrary to the law of nations, a breach of faith, and in 
 fraud of the treaty. 
 
 2. The Commissioner of Indian Affairs instructed the board of com- 
 missioners to close their session, and dissolved the first board on the 5th 
 March, 1839; assumed upon himself the power to review and reverse the 
 decisions of the court of commissioners; to grant or reject claims; refused 
 to pay the certificates of the connuissioners; and directed the commissioners 
 not to issue certificates until further directions. 
 
 3. The first board was dissolved by the Commissioner of Indian Affairs; 
 the second board was appointed November, 1842, and dissolved by the 
 President of the United States on the iTth January, 1844, by removing 
 Messrs. Eaton and Hubley without just cause; the tliird board was com- 
 missioned in June, 1844, and was dissolved 17th June, 1845; the fourth 
 board was commissioned in July, 1846, and was dissolved in July, 1847. 
 
 4. Ail commissions were ''during the pleasure of the President," by 
 which, and the aforementioned causes, the independent tenure of office 
 ordained by the treaty of New Echota has been destroyed, and the se- 
 curity for the claimants provided by the I7th article has been impaired. 
 
 5. The decisions by the commissioners in various cases not suscep- 
 tible of doubt are so palpably erroneous as to warrant the inference that 
 ihese were premeditated wrongs, superinduced by the wrongful instruc- 
 thns of the Commissioner of Indian Affairs. 
 
 Between the dissolution of the first board and the session of the second, 
 aa interval of three years and nine months elapsed; between the dissolu- 
 tioii of the second board and the session of the third, there was an interval 
 of six months; between the dissolution of the third board and the session 
 .of the fourth, there was an interval of thirteen montlis. That board was 
 •dis&oived in July, 1847; so that there is no existing commission. Claims, 
 
Mis. No. 8. 9 
 
 witli the evidence in support of them, have been forwarded since the dis- 
 sokition of tfce last board. 
 
 Whatever of harshness may appear in the foregoing allegations of the 
 obstructions which have been thrown in the way of the Cherokees in their 
 efforts to obtain their dues, under the treaty of New Echota, it is justified 
 by truth, sustained by documents and written evidences of undoubted 
 authenticity, by the transcript of letters from the office of Indian affairs, com- 
 municated by the Secretary of the Department of War to Congress, in 
 obedience to resolutions of the one or of the other house of Congress, 
 and by records and evidences of the decisions of the commissioners, filed 
 in the office of Indian affairs. 
 
 As a preface to the instructions to die commissioners which issued from 
 time to time from the office of the Conmiissioner of Indian Affairs, we 
 will bjing to mind certain maxims or general principles respected by all 
 nations as of universal obligation: 
 
 1 . Neither the one nor the other of the interested contracting powers has 
 a right to interpret the treary at his pleasure. For if I am allowed to ex- 
 plain my promises as I please, I may render them vain and illusive by 
 giving them a sense different from that in which they were presented and 
 accepted. (Vattel, bt-ok ii, chapter xvii, page 227, sec. 265; and the like 
 by Grotius, book ii, chaper xvi, par. 1, page 352.) 
 
 2. If he who can and ouglit to have explained himself clearly and 
 plainly lias not done so, it is worse for liini; he cannot be allowed to intro- 
 duce subsequent restrictions which he has not expressed. This is a rule 
 proper to repel and cut off all chicanery. The ecjuity of this rule is visible; 
 and its necessity not less evident. (Yattel, page 226, sec. 264.) 
 
 3. The faith of treaties forms all the security of the contracting parties. 
 This faith is not less wounded by a refusal to receive an evidently right 
 interpretation, than by an open infraction. It is the same injustice, the 
 same infidelity; and for one of them to involve himself in the subtleties of 
 fraud, is not less odious. (Vattel, page 22S, sec. 269.) 
 
 4. It is a gross c|uibble to fix a particular sense to a word in order to 
 elude the true sense of the entire expression. When we manifestly see 
 what is the sense that agrees with the intention of the contracting powers, 
 it is not permitied to turn their words to a contrary meaning. The inten- 
 tion sufficiently shown, furnishes the true matter of the convention of 
 what is promised and accepted, demanded and granted. (Vattel, page 
 230, sec. 273, 274.) 
 
 5. The contracting powers are under an obligation to express themselves 
 in su^'h a manner as they may mutually understand each other. If this 
 was not the case, their contract could be nothing but either sport or a snare. 
 They should employ the words in tlie sense which use and custom have 
 given them. 
 
 Technical terms, or terms proper to the arts and sciences, ought com- 
 monly to be interpreted according to the definition given by the masters 
 of the art. Commonly it should be so, but this rule is not so absolute 
 that we ought not to deviate from it when we have good reasons to do it; 
 as, f n- instance, when it appears that he who speaks in a treaty, or in any 
 oihcr public writing, did not understand the art or science; that he knew 
 not its force as a technical word; that he has employed it in a vulgar sense, 
 ccc. If terms of art, or others, relate to things that admit of dilferent de- 
 grees, we ought not scrupulously to attach ourselves to definitions; but 
 
10 Mis. No. 8. 
 
 rather to take the terms in a sense agreeable to the discourse of which it is 
 a part. (Vattel, book ii, ch. xvii, sec. 271^ 276^ 277, j^. 229-231; 
 Grotius, book ii; ch. xvi, par. 2, p. 353.) 
 
 6. There is not any language that has not words which signify two or 
 many different things or phrases susceptible of more than one sense. 
 Thence arise mistakes in discourse. Contracting parties ought to avoid 
 them. To employ them with design, in order to elude engagements, (or to 
 entrap,) is a real perfidy, since the faith of treaties obliges the contracting 
 parties to express their intentions clearly. (Vattel, p. 232, sec. 279.) 
 
 7. Every interpretation that leads to an absurdity ought to be rejected: 
 we should not give to any instrument of writing a sense from which fol- 
 lows anything absurd. 
 
 The interpretation that renders a treaty null and without effect cannot be 
 admitted ; for it is a kind of absurdity to suppose that the terms of the treaty 
 (or an article of a treaty) should be reduced to nothing, (Vattel, book ii, 
 chap, xvii, sec. 282, 283, pp. 233, 234; Grotius, book ii, chap, xvi, par. 
 6, p. 355.) 
 
 8. " Frequently, in order to abridge, people express imperfectly and with 
 some obscurity what they suppose is sufficiently elucidated by the things 
 that precede it, or even what they propose to explain afterwards; and be- 
 sides, the expressions have a force and sometimes even a different signifi- 
 cation, according to the occasion, their connexion, and relation to other 
 words." The connexion and relation of things themselves serve also to 
 establish the true sense of a treaty. The interpretation ought to be made 
 in such a manner that all the parts appear consonant to each other, that 
 what follows agrees with what went before; for it is presumed that the au- 
 thors of the treaty had a uniform steady train of thought; that they have 
 intended to explain one thing by another; that one and the same spirit 
 reigns throughout the treaty. Therefore we ought to consider the whole 
 discourse together, in order perfectly to understand the sense of it, and to 
 give to each expression not so much the signification it may receive in 
 itself, as that which it ought to have from the thread and spirit of the dis- 
 course. It is the office of a good expositor to make construction on all the 
 parts together, and not of one part only by itself: nemo enim aliquam par- 
 tem recte intelhgeri possit, antequam totum iterum atque iterum perlegerit. 
 (Vattel, p. 235, sec. 285 — Lincoln College's case, 3 Co. 59, (b;) Grodus, 
 book ii, chap, xvi, par. iv, sec. 2; par. vii, pp. 354, 355.) 
 
 9. As two articles in the same treaty may relate to each other, two dif- 
 ferent treaties may do so too, and in such case are to be explained by one 
 another. (Vattel, p. 236, sec. 286.) 
 
 10. The reason of the law, treaty, or promise, does not only serve to ex- 
 plain the obscure or equivocal terms, but also to extend or to confine the 
 dispositions independent of the terms to the views and intention of the con- 
 tracting powers, rather than to their words; the language invented to explain 
 the will ought not to hinder its eftect. Good faith affixes itself to the in- 
 tention; fraud insists on the words when it thinks it can conceal itself under 
 them. The reason of the law or treaty ought to have great attention, as 
 one of the most certain means to establish the true sense, and to explain 
 an obscure, equivocal, and undetermined point. (Vattel, sec, 287, 290, 
 291, pp. 237, 239; Grotius, book ii, chap, xvi, par. 8, p. 355; Stowell v. 
 Zouch — Plowden, 363; Eyston v. Studd — Plowden, 205.) 
 
Mis. No. 8. 11 
 
 To these general maxims, principles, and rules, quoted from high au- 
 thorities, we add these other axioms or self-evident truths: 
 
 11. That in a treaty each several article is the consideration of all the 
 other articles, and all the articles together make the consideration of each 
 particular article. 
 
 12. That the acts of the Commissioner of Indian Affairs done in his of- 
 ficial character, reported to the Congress and never disavowed hy the Presi- 
 dent of the United States or Secretary of the Department of War, are 
 to be taken to be the acts of the Executive power, although the President 
 may not have given his particular order or assent to such acts. 
 
 13. The seventeenth article of the treaty of New Echota provided for a 
 commission, for a judicial tribunal, for judges, before whom all the claims 
 arising under or provided for in the several articles of this treaty are to be 
 " examined and adjudicated," and " their d,eeision shall be final." 
 
 14. That the decisions of these judges of this tribunal, erected and con- 
 stituted by the mutual concurring wills and agreement of the twocontract- 
 ing nations, were not subject to be revised or reversed by any other tribunal, 
 officer, or authority exercised under the United States, one of the interested 
 contracting powers, and an exercise of such a power by the United States 
 would be an arbitrary assumption against right, and a breach of the faith of 
 the treaty. 
 
 15. A power and authority in one of the parties to judicial proceedings, 
 directly interested in the decisions to be given, to tamper with the judges 
 or jurors to bend them to his will, or by his letters missive to instruct them 
 what decisions they shall make, that whole classes of cases are to be deci- 
 ded in his favor; and as to others, that they must defer their decisions or 
 evidences thereof, until he is ready to pay or until further instructed, is 
 against the rudiments of natural justice, repugnant to the common sense 
 and feelings of all niankir.d. Christians and barbarians, and hostile to the 
 genius and spirit of the State and federal institutions. That such a power 
 has been exercised for the government, and not for individual personal ad- 
 vantage, is a difference in the manner only which does not absolve, but 
 aggravates the injustice. "Fraus enim adstringit, non dissolvit perjuriimi." 
 
 The instructions which had issued from time to time, have been drawn 
 forth by parts and parcels. They were concealed from the claimants, and 
 the whole extent of the instructions issued from the office of Indian Affairs 
 to the commissioners was not developed until January 14, 1847, when the 
 Secretary of War answered a resolution of the Senate, drawn in such com- 
 prehensive terms, calling fir the instructions, as to leave no room for a play 
 upon the letter of the call. That communication (of January, I S47) brought 
 to light various instructions, commencing as far back as June 20, ISoT, 
 not before communicated. 
 
 By letter of January 24, 1S3S, Mr. Harris thns instructed the commis- 
 sioners: " It has been supposed in this office that all valid claims for im- 
 provements abandoned by the Cherokees under the treaty of 6th May, 1828, 
 with the portion of the nation west, have been paid for, or otherwise satis- 
 factorily accounted for. If any such shall be laid before you, you will pro- 
 ceed to examine them, and receive all the evidence in their support, and 
 forward the whole to this office for the purpose of comparing them with the 
 valuations and pay rolls here, before any order will be made in relation to 
 payment." 
 
 This mode of trial by withdrawing the evidence from the court, and 
 
12 Mis. No. 8. 
 
 transmitting it tx) an executive officer for further testimony to be taken and 
 determined on by him, and not produced before the court, is a proceeding 
 not warranted by any principle, nor accordant with the 17th article of the 
 treaty. 
 
 On the Sth February, 1S3S, Mr. Harris wrote to the commissioners: "It 
 is the opinion of the department proper that you should establish a rule 
 not to review any case that has once been decided." 
 
 Upon these letters the interference by this executive officer with the du- 
 ties of the court of commissioners is apparent. At present it is sufficient 
 to say that the rule directed to be established, "not to review any case that 
 has been once decided," goes back to the rude ages and crude notions ot 
 proceedings in courts of law, when remedies by trials by battle, and attain- 
 ing jurors for false verdicts prevailed; when, by an intolerable strictness in 
 grantmg new trials, persons were driven into courts of equity for relief by 
 decrees for new trials at law for the purposes of justice. For two centuries 
 the practice of new trials at law, and reliearings in equity and bills of re- 
 view, has prevailed as necessary to the purposes of justice. In the case ot 
 Bright V. Eynon, (1 Burrow, p. 393,) Lord Mansfield declared, "It is abso- 
 lutely necessary to justice that there should on many occasions be oportu- 
 nities of reconsidering thecause byanew trial." "Of late years the courts 
 of law have gone more liberally into granting new trials, according to the 
 circumstances of the respective cases. And the rule laid down by Lord 
 Parker, in the case of the Queen against the corporation of Helston, 12 
 Ann, (Lucas's Rep., p. 202,) seems to be the best general rule that can be 
 laid down on the subject, viz: doing justice to the party, or, in other words^ 
 attaining the justice of the case." 
 
 On the 19th June, 1S38, Mr. C. A. Harris, Commissioner of Indian Af- 
 , fairs, addressed a letter to the commissioners in these words and figures: 
 " Gentlemen, I am directed by the Secretary of War to instruct you that, 
 in his judgment, no payments whatever should be made on account of res- 
 ervation claims under the treaties of 1817 and 1819, either to the Indian 
 reservees or to their assignees. But you are to proceed in and to complete 
 the examination of these claims, and to report each case and the testimony 
 bearing upon it to this department. If, as there seems to be reason to ap- 
 prehend, more extensive powers will be required to enable the agents of 
 the government to arrive at the truth, such measures as m.ay seem proper 
 will be adopted." 
 
 By this mandate from the office of the Commissioner of Indian Affairs, 
 by the direction and authority of the Secretary of War, (as the writer stated,) 
 the commissioners, the judges, appointed by virtue of the 17th article of 
 the treaty of Isevj Echota, were reduced from their high estate as arbiters 
 appointed under a treaty of the two contracting nations, transformed into ser- 
 vants and handmaids to the Commissioner of Indian Affairs, stripped of 
 their judicial robes, and distaffs were put into their hands, with orders to 
 spin for the use of the office of Indian aflairs! 
 
 From the condition of tlie two contracting powers, the power, wealth, and 
 influence of the one party, and the comparative weakness and poverty of 
 the other party; from the high confidence reposed by the Cheroteesin giv- 
 ing to the United States the appointment of tiie judges, without any voice by 
 any senator, representative, or delegate elected on the part of the Chero- 
 kees; and from the nature of the duties to be performed by the persons to 
 be appointed, it was but a reasonable expectation on the part of the Chero- 
 
Mis. No. 8. 13 
 
 kees, and a moral diitv incumbent on the appointing power of the United 
 States, to use reasonable circumspection and good faith to select as the ar- 
 bitrators persons of integrity, firmness of purpose, high intellectual capacity 
 and fitness; ^' liberos et legales homines omni exceptione majores." And 
 when appointed, the United States were bound by the faith of treaties, which 
 is declared sacred by the lawof naUons, that they should have been left free 
 to adjudicate according to their unbiassed judgments of the sense and mean- 
 ing of the treaty. 
 
 The powers so assumed by the Commissioner of Indian Affairs to impose 
 authoritatively his construction of the treaty, and an interpretation so man- 
 ifestly wrong, and to revise and reverse the decisions of the commissioners, 
 were, according to axiom 12, before stated, the acts of the Executive of the 
 United States, and were contrary to the axioms 1, 3, 14, and \5, before 
 stated, and a breach of the faith of the treaty. 
 
 By the letter of the Commissioner of Indian Affairs of the 17th January, 
 1839, to the commissioners, Messrs. Kennedy, Wilson, and Liddell, they 
 were instructed to terminate their session and transmit their registers, doc- 
 imients and papers to the office of Indian aff'airs, whereby the commission 
 was by that order broken up and dissolved on the fifth day of March, 1S39, 
 before the business of the commission under the 17th article of the treaty of 
 New Echota was completed. (See rep. No. 391, •2Sth Cong., Istsess., March 
 29, 1844— letter C, p. 9; and report of T. H. Crawford— I, page 38.) 
 
 Thus, the court of commissioners constituted under the 17th article of 
 the treaty was broken and dissolved by the act of the officer of the United 
 States, the one contracting interested party, without the consent of the 
 other contracting party. This was a wrong, a violation of the faith of the 
 treaty. The Cherokee claimants were compelled to apply to the Congress 
 to revive the court of commissioners; and the first session of the new court 
 of commissioners commenced in December, 1843, about three years and 
 nine months after the Commissioner of Indian AlTairs had broken up the 
 former. 
 
 Before the session of the new court, consisting of Messrs. Eaton and 
 Hubley, (the latter appointed in place of Mr. Iredell, who refused to ac- 
 cept,) the Commissioner of Indian Affairs issued his instructions to these 
 commissioners by letter dated September 28, 1842, (Doc. No. 391, p. 17, 
 House of Representatives, 28th Congress, 1st session, vol. 2 of Reps. 1843, 
 1844.) Oat of the many instructions therein, the following are highly im- 
 proper, amongst others: 
 
 1. "The ]7th article makes the decisions of the commissioners final 
 that have been already liad, and reported by the former board to this de- 
 partment. Even the Executive cannot overrule them where they had juris- 
 diction; and if they have none, you cannot possess it. You are tlierefore 
 instructed that no case which has been adjudicated by the former i)oard is 
 open to your examination; and one of the great objects in fin-nishing you 
 with its records, is to enable you to detect at once any application to you for 
 the consideration of cases of any (lescription that hav^e already been passed 
 on by the former board, wliich will be rejected." 
 
 2. " Valuations of improvements not already made and not appearing bv 
 the records of the former board ;'^ ''and even then, if you are not satisfied 
 with their correctness, valuations must be nmde of all such improvements 
 as are subject to your jurisdicfAon under these instructions, and were in 
 the possession of the Cherokees at the date of the treaty, not at its ratijica- 
 
14 Mis. No. 8. 
 
 Hon, or add any Talne to the lands, and also of the ferries owned by them 
 at the same time," &c. 
 
 3. " Claims under the 16th article, if any such should be preferred, it 
 has been already stated would not be entitled to your favorable considera- 
 tion." "A law was passed by Congress appropriating $50,000 to pur- 
 chase certain tracts of land in the State of Georgia, reserved to the Indians 
 by the treaties with the Cherokees of 1817 and 1819." Instructions were 
 issued to Col. D. G. Campbell, (fcc; they returned a list of reservees of 
 whom they had purchased, showing they had paid $4.5,6(35 to them. " It 
 is presumed (ill those fairly entitled to its provisions applied under this act; 
 and if they did not, that they are guilty of laches, which would operate in bar 
 of their claims now. It is probable the 16th article was inserted to satisfy 
 all parties who could claim, but all such should be very closely scrutinized; 
 and if they might have availed themselves of the law of 1828, and did not 
 do so, they ought not now to receive your decree in their favor." 
 
 4. " The claims for reservations which were taken under the treaties of 
 1817 and 1819, according to an opinion of the Attorney General of 14th 
 of May, 1838, but which are on the land ceded in 1835, are entitled to no 
 compensation for the reservations, because they were unauthorized, and 
 should have been located on the cessions of 1817 and 1819;" but if im- 
 proved, then the improvements only should be paid for, under the ninth 
 article. 
 
 5. '^ There are no pre emption rights; they were provided by the 12th 
 article of the original treaty, but abrogated by the first of the supplemental 
 articles, and never had more than an inchoate existence, which is gone." 
 
 Such are the instructions given by the Commissioner of Indian Affairs 
 to the court of commissioners under the 17th article. They are interpre- 
 tations of the treaty given according to axiom 12, by the Executive of the 
 United States, and being so imposed authoritatively by the United States, 
 the one of the interested contracting powers, are in violation of the 1st, 
 3d, and 15th axioms before mentioned. 
 
 In so doing there was a double wrong : first, in not leaving the court of 
 commissioners free to make their own interpretations and constructions; 
 secondly, in making interpretations erroneous and in direct opposition to 
 the true sense and meaning of the treaties. 
 
 The instruction that this court of commissioners had no jurisdiction over 
 cases decided by their predecessors is totally wrong, and was intended to 
 perpetuate the errors committed by their predecessors, in many cases so 
 palpably erroneous as to excite the inference that they were the results of 
 some influence foreign to the treaty, which had blinded their judgments, 
 rendered their consciences torpid and passively obedient to such extraneous 
 influence, to which the instructions issued by the Commissioner of Indian 
 Affairs, Mr. Harris, was the key. 
 
 The court of commissioners agreed by the treaty was the court estab- 
 lished by the authority and concurrent Avill of both the contracting powers. 
 The judges when appointed were in by the treaty; their tenure of office 
 was by the treaty. The court was no more dissoluble by the sole will of the 
 United States, in good faith and of right, than any article of the treaty, or 
 the wlr. le treaty. The ligament of the t^'eaty being tied by the concurrent 
 powers and wills of the two contracting nations, could not, in good faith, 
 be untied and dissolved in any other manner than that by which it had 
 been tied and created. " Ununi quodque dissolvitur eo modo quo colli- 
 
Mis. No. 8. 15 
 
 gatur," is a maxim of law between nations, as well as between individuals, 
 who contract obligations. 
 
 To grant commissions to persons appointed to examine and adjudicate 
 imder the 17th article, to hold during the pleasure of the President of the 
 United States, was a departure from the treaty; the offices were created by 
 the treaty. 
 
 The constitution of the United States operating upon treaties made in 
 pursuance thereof, declares them to be the supreme law of the land. 
 From the terms of the treaty and the ratification thereof the President 
 derives his power to appoint, and the Senate derive their advisory power 
 in respect of these connnissioners provided by the ITth article. The treaty 
 creates a judicial tribunal, to be holden by commissioners, by whom 
 *^'all the claims arising under or provided tor by the several articles of 
 this treaty shall be examined and adjudicated." As well might the Presi- 
 dent commission judges of the Supreme Court to hold during his pleasure, 
 as to commission these judges under the 17th article of this treaty during 
 his pleasure. Their authority of office as judges is dignified by the pow- 
 ers of the two contracting nations, who, by their joint powers, have created 
 a judicial tribunal, having a jurisdiction to decide in cases wherein the 
 majesty of the government of the United States is the party defendant and 
 to be adjudged as debtor. 
 
 The judicial tribunal so created by the treaty is not an inferior court. 
 It is not a court whose decisions are liable to be reviewed and reversed by 
 the United States, or by any officer of the United States. The jurisdic- 
 tion of the court arises out of the treaty, and is coextensive with the 
 claims arising under or provided for by the treaty. In that respect and to 
 that extent it is not of limited jurisdiction. 
 
 The duration of the court is limited to no fixed period of time: no fixed 
 stated terms are prescribed by the treaty. The business to be transacted 
 under the treaty is the only limitation to the term and session of the court. 
 From the first to the last sitting of the court it is all one term, one and the 
 same court, possessing the same powers, no matter how the persons consti- 
 tuting the court may be changed by resignation, death, or other casualty. 
 When Mr. Lumpkin resigned, after many adjudications, and Mr. Wilson 
 was appointed his successor, it was nevertheless the same court of the 
 treaty, possessing all the powers of the treaty. The powers of Messrs. 
 Kennedy and Wilson were coequal with the former powers of Messrs. 
 Lumpkin and Kennedy whilst they constituted the commission. When 
 Mr. Jjiddell was added to the conmiission the powers of Messrs. Kennedy, 
 Wilson, and Liddell were coequal with the powers of Messrs. Lumpkin 
 and Kennedy whilst they were in commission, or of Messrs. Kennedy 
 and Wilson when they composed the commission and the court. 
 
 That tlie President of the United States may at his pleasure, and with- 
 out cause, by dismissing the court, or the judges of tlie court, and ap- 
 pointing others, break the sittings into separate and distinct terms, or di- 
 vide, constrict, or lessen the powers and jurisdiction of the successors as 
 often as new commissions are granted, cannot be maintained by reason. 
 Such a power is contrary to the principles of tiie law of nations and the 
 faith of treaties. Neither party can by his act alter the meaning and eflect 
 of the treaty. 
 
 The United States cannot be sued for the demands of the Cherokees 
 in the ordinary courts, nor in the Supreme Court of the United States, nor 
 
16 ' . Mis. No. 8. ., , 
 
 in any other court of judicature but in that established and agreed by the 
 treaty of New Echota for the examination and adjudication of those 
 claims. The decision of that tribunal as to the amount due to each 
 claimant is veritable and final, and to be paid by the United States. This 
 provision for a tribunal to examine and adjudicate between the respective 
 claimants as plaintiffs and the United States as defendant, is the great, 
 solid, and most effective security which the Cherokees have for the sev- 
 eral indemnifications and other claims upon the United States mentioned 
 in the treaty. If the United States can make the tenure of office of these 
 judges dependant upon the mere pleasure and will of the President of the 
 United States; if he can dismiss them from office at his will, dissolve the 
 court, and refuse or delay to appoint others; instruct them of what cases 
 they shall take cognizance, and of what they shall not; instruct them 
 what decisions to give; not to issue certificates; instruct them as to the in- 
 terpretations given by the United States, the one of the interested con- 
 tracting parties, and the debtor part)^; curtail their jurisdiction by instruct- 
 ing them not to take cognizance of this or that class of cases, as not apper- 
 taining to their jurisdiction, and after they have decided revise and reverse 
 their decisions upon the ground that they have exceeded their jurisdiction, 
 or because they have decided erroneously — tlien the security provided for 
 the Cherokees by the ITth article is impaired. No virtuous efiect, no 
 solid benefit, grows out of the decisions of the court in favor of the Chero- 
 kee claimants; the 17th article of the treaty would by such construction be 
 Tendered null, and without effect, except that which the mere will and 
 pleasure of the United States, the debtor party, shall allow to it. A con- 
 struction which lead« to such an absurd consequence, whic?i renders an 
 article in the treaty null and without effect, is contrary to the 8th, lOth, 
 and 11th axioms before cited. 
 
 The power belongs to every tribunal of justice, to every deliberative 
 body, to correct its own errors or mistakes, or misjudgments and conclu- 
 sions. In courts of law the power to grant new trials is clear, and liber- 
 ally exercised, as before shown by the authority of Lord Mansfield in the 
 case of Bright vs. Eynon, (1 Burr. 393, 395;) of Lord Parker in the case 
 of the Q,ueen vs. the corporation of Helston, (Lucas's Reports, p. 202,) and 
 the cases referred to by Lord Mansfield. T!ie practice is familiar in all 
 our courts of law. The limitation to the power is, that it be exercised be- 
 fore the authority of the court over the particular case has been cut off by 
 the lapse of time, the rules of practice, or the terras set and prescribed by 
 law to the particular court. In courts of equity, applications for rehear- 
 ings are entertained liberally, and bills of review to correct errors apparent 
 in the body of a- decree, or upon new matter not within the knowledge or 
 power of the party at the hearing, are well known. Bills of review in 
 England are entertained at any time within twenty years after decree 
 enrolled, (1 Harrison's Ch. Prac, chapter 2, pp. 13T-140.) Before decree 
 signed and enrolled, a petition for a rehearing to have the benefit of new 
 matter, or to correct errors of fact or law, is the practice. (Standish vs. 
 Rudley, 2 Atk., p. 177; Maddock, Chan., pp. 370-272.) 
 
 It cannot be doubted that during the same term a court has the power 
 to amend, alter, set aside, and correct any order or decree, or judgment, 
 and to grant a new trial or rehearing upon application of the party aggrieved 
 by an error, or upon the mere motive of the court itself, where the judges 
 
 Hp 
 
Mis. No. 8. If 
 
 even doubt the correctness of their judgment; much more where the error 
 of the judgment, or decree, is apparput. 
 
 The records of the various boards of commissioners appointed by the 
 United States to examine the claims of individuals to the lands in Louis- 
 iana purchased of France, and in Florida, purchased by the United States, 
 show that those boards exercised the power (and rightfully exercised it) 
 to set aside rejections of claims made at one period of time, and to affirm 
 the claims at after periods upon new evidence. 
 
 The whole time of the sittings from the beginning, in 1836, to the final 
 conclusion of the business under the seventeenth article of the treaty of New 
 Ecliota, is but one term, and the power of the court of commissioners to 
 grant rehearings of rejected cases is within the sound discretion of the 
 commissioners. 
 
 That question as properly belongs to the judgment and decision of the 
 commissioners as any other question under the treaty. They have so de- 
 cided, and exercised the power of granting new hearings. That subject is 
 not within the control of the United States or the executive ofiicers of the 
 government, any more than any other decision. 
 
 The United States cannot have advantage from the wrongs committed 
 by the Executive in putting an end to the first commission, which had no 
 limitation as to time; nor by issuing commissions to be held during the 
 pleasure of the President; nor by dismissing the commissioners without 
 cause; nor by granting commissions for limited terms. Neither an act of 
 Congress, nor an act of the President, can alter the treaty, or restrict the 
 power of the court when constituted and in session under the seventeenth 
 article of the treaty. 
 
 The Commissioner supposes the decisions to be final against the commis- 
 sioners themselves, at the very moment any decision shall be made against 
 a claimant; but not final against the government of the United States. 
 The Commissioner of Indian Affairs claims that " the power is inherent 
 which is necessary to discharge an imposed duty, unless prohibited by 
 law." Is not the treaty of New Echota, ratified according to the constitu- 
 tion, a law of the land? 
 
 The true meaning of the declaration of the treaty that the decisions of 
 the commissioners shall be final, is that they shall not be re-examined, re- 
 viewed, reversed, or set aside, by any other tribunal, court, or executive 
 officer, of either of the contracting powers; that their decisions shall be 
 conclusive as to the matter of right against the two contracting nations, 
 the powers and authorities of each nation, and as against the claimants. 
 That they may be revised, amended, and perfected, by thesam.e tribunal to 
 whom the cognizance is intrusted, is a power necessary and proper to the 
 end for which this court was instituted — the attainment of justice; it is ne- 
 cessarily implied, and in no Avay inconsistent with the declaration that 
 their decisions shall be final and conclusive against appeal, writ of error, 
 review, or reversal, by any other tribunal or power, judicial or execu- 
 tive. 
 
 The decisions of the Supreme Court of the United States are final; not 
 liable to be reviewed, reversed, or set aside by any other tribunal or power, 
 judiciary or executive, exercised under the authority of the United States; 
 but not final and conclusive against that court itself, so as to forbid the 
 ranting of re-arguments or rehearings, at the discretion of the court, and 
 for the attainment of justice. 
 2 
 
18 Mis. No. 8. 
 
 But the opinion of Attorney General Lagar6 is brought in aid of this 
 power of the Executive to review the judgments and certificates of the 
 commissioners. 
 
 The case upon which the opinion of Mr, Lagare was given, (and the 
 opinion itself,) is found in the report of the Commissioner of Indian Affairs 
 to the Secretary of War, dated 14th April, 1843. — (O 5, and the letter of the 
 commissioners to the Commissioner of Indian Affairs, dated 25th January, 
 1839; O 6, pp. 54, 55, of rep. No. 391, vol. 2, House Reps, of 1843-44.) 
 The Commissioner of Indian Affairs states distinctly that the claim as first 
 submitted to the board of commissioners was within their jurisdiction, and 
 that the only objection to the allowance of it by the second board of com- 
 missioners was, that the " late commissioners had virtualhj rejected the 
 claim." Mark! ^^ Virtually rejected Xhe cXmxn.''^ 
 
 The board of commissioners had distinctly examined what their prede- 
 cessors in office had done, and upon the facts decided that the former board 
 had not rejected the claim. 
 
 Mr. Attorney General Legare was asked by the Secretary of War 
 ''whether the proceedings that were had before the former board amount 
 to a rejection of the claim." 
 
 That is the precise question as stated by Mr. Legare himself in the fore 
 part of his opinion. He was asked to review the very question which the 
 board of commissioners had examined and decided. He differed in opin- 
 ion from the commissioners, and reversed their decision upon the very ques- 
 tion discussed and decided by that board. 
 
 It cannot be hidden nor disguised that the Secreiary of War did apply to 
 Mr. Attorney General Legare to review the decision of the board of com- 
 missioners upon a point which had been discussed by the commissioners 
 and directly decided by the board, and that he overruled and reversed ihe| 
 decision of the board. 
 
 By the opinion of the board of commissioners the proceedings of thei 
 predecessors did not amount to a rejection of the claim: by the opinion o 
 Mr. Legare, they did. 
 
 The commissioners were right in overruling the plea of a former rejection 
 and Mr. Legare erred egregiously in giving his opinion to the contrary 
 
 The commissioners, Messrs. Kennedy, Wilson, and Liddell, wrote t 
 the Commissioner of Indian Affairs on the 25th January, 1839, for Mr 
 Rogers's papers, which he had withdrawn by their leave. The commission 
 ers had not entered any decision on their record. They wanted the paperi 
 that they might enter a decision. When Mr. Crawford received this lette| 
 the commissioners had done no final act. They wanted the papers to e 
 able them to do a final act upon ex parte communications, after Mr Roge 
 had withdrawn his papers and was absent. 
 
 If Mr. Rogers had been apprized of this ex parte testimony furnished 
 the commissioners after he had withdrawn his papers by leave of the cour 
 and when his claim was not before the court, and not therein pending, an| 
 had expostulated and protested against such ex parte evidence, or had e 
 plained it away, or had asked time to rebut it, or had convinced the cou| 
 that their opinion intimated to Mr. Crawford was not only erroneous, b 
 an unwarranted proceeding in a case not pending before them, their lett 
 to Mr. Crawford would have been no estopel to them, no bar to their j 
 risdiction. Notwithstanding this letter to Mr. Crawford, the commissio 
 ers had locus podnitentice. 
 
Mis. No. 8. m 
 
 Mr. Crawford did not return the papers ; the commissioners entered no 
 decision of record; did no final acl as a court. They had not the papers 
 before them, nor an application before them by Mr. Rogers; he had with- 
 drawn his papers by leave of the court. If under these circumstances they 
 had entered a decision, they would have acted without any rightful juris- 
 diction. No court has jurisdiction to adjudicate and extinguish a right, or 
 bar a claim not pending; withdrawn by their leave and when the party is 
 out of court, absent, not notified of any such proceeding and ignorant of it. 
 When Mr. Rogers presented his application anew after he had withdrawn 
 his papers, it was ''res integra;^' he had the right to fortify his claim by 
 new evidence and arguments. 
 
 Is an intention to do an act the act itself? Is an intent to despoil a man 
 of his money a robbery in fact? 
 
 But Mr, Crawford did not send the papers. There is no decision by the 
 commissioners rejecting the claim of Mr. Rogers to be found among their 
 records. 
 
 When the first board closed their session on the 5th March, 1839, and 
 returned their books, papers, and records to the War Department, no pa- 
 pers of Mr. Rogers were returned by the commissioners; no decision of a 
 rejection of Mr. Rogers's claim was of record as made up for the commission- 
 ers by their secretary; there is now no such record. 
 
 The board of commissioners under the treaty of New Echotawas a court 
 of record, with a secretary to record their adjudications. When Mr. Ro- 
 gers presented his claim before Messrs. Eaton and Hubley, (the commis- 
 sioners under the treaty of New Echota secondly appointed,) the United 
 States interposed a plea of decision by a former board rejecting the claimj 
 Mr. Rogers replied, there is no such record. Upon every such plea of ?iid 
 tiel record, the party alleging a former judgment or adjudication must pro- 
 duce an exemplification, a true copy of the record, or he fails in his plea. 
 The United States could produce no copy or exemplification of any such 
 record of the commissioners rejecting Mr. Rogers's claim. There was no 
 such record of the court of commissioners. 
 
 But in place of such record of a decision of the commissioners, the United 
 States offered in evidence the letter of the commissioners to Mr. Crawford^ 
 and his answer that he did not send the papers, but he would file their letter 
 with Mr. Rogers's papers, and consider that " sufficient evidence of your 
 rejection of his cla.im." The commissioners adjudged that it was not a de- 
 ision made by the board of commissioners, and that it was not a bar. Mr. 
 Legare revises that decision of the court of commissioners, and thinks it \vas 
 rroneous. Mr. Legare says the commissioners reported upon it as unfound- 
 ed, "and their report was received and recorded as a judgment by otie of 
 /our predecessors.^^ That is, by one of Mr. Porter's predecessors as Secre- 
 ary of the Department of War. Wonderful to be told ! A Secretary of 
 War manufactured in his office a judgment for the court of commissioners 
 ifter their session had terminated. 
 
 Such conduct of the Department of War was without authority, a usur- 
 )ation; a meddlesome, obtrusive act, having no binding legal force whatever, 
 n disregarding such an act, the commissioners secondly appointed acted 
 liscvoedy and according to the law and the justice of the case. 
 
 The commissioners had no right to call for Mr. Rogers's papers after he 
 lad withdrawn them by leave of the court. The Commissioner of Indian Af- 
 fairs had no right to apply the papers ol Mr, Rogers left in his office for one 
 
20 Mis. No. 8. 
 
 purpose , to the fabrication of a judgment for the commissioners . The Seci'e- 
 tary of War had no rightful authority to manufacture a decision for the 
 court of commissioners. So this whole matter concerning a decision by the 
 commissioners rejecting the claim of Mr. Rogers was a nullity in law, and 
 out of the cognizance of the War Department and of the Attorney General. 
 
 The Attorney General has thought fit to make a distinction between the 
 official powers, duties, and jurisdiction of the commissioners first appointed . 
 and those secondly appointed under the seventeenth article of the treaty of 
 New Echota. None such exists in law. Although the persons were dif- 
 ferent, their official powers, duties, and jurisdiction, were derived from the 
 same treaty; they are judges of the same court, with no difference of pow- 
 ers and authorities than if there had been no interruption of the commis- 
 sion by the illegal act of an executive officer. The treaty did not split 
 and divide the sittings of the cotirt of commissioners into terms^ such as 
 Hilary, Easter, Trinity, and Michaelmas, assigned to the Court of Kings- 
 Bench . All the successive commissioners , and all their successive sittings , 
 composed one and the same court, and one and the same term, established 
 by the treaty, with no more difference of powers and jurisdiction than 
 between the court of Saturday and the court of Monday. 
 
 The Attorney General having first construed the illegal, officious inter- 
 meddling of the War Department into "res adjudicata" by the former com- 
 missioners, calls the application of Mr. Rogers to the secondly appointed 
 commissioners under the same treaty '-an appeaV from the decision of 
 their predecessors. Names do not change the substances and essences of 
 things. Is an application to the succeeding judges of the same court, de- 
 riving their authority and jurisdiction from the same treaty which gave 
 authority and jurisdiction to their predecessors, "an appeal" in the legal 
 sense of the terra? But suppose the predecessors in office of the same 
 court and same term had decided a case, committed a mistake, or given 
 an erroneous decision upon the facts, or had taken the plaintiff by surprise, 
 is an application to the successors in office of the same court, and during 
 the term, to correct the mistake or set aside the erroneous decision, or to 
 grant a new trial because of the surprise, " an appeal" in the legal, tech- 
 nical sense, which the Attorney General has applied to it? Would an ap- 
 plication to the Supreme Court of the United States, made during the sec- 
 ond week of a term, to set aside a judgment of the first week of the term, 
 be "an appeal" from the decision of the Supreme Court? Familiar prac- 
 .tice, and the voices of the profession, of judges and counsellors, answer 
 "No." 
 
 The Attorney General admits that the judgments of the commissioners 
 under treaties do conclude "parties to the treaty;" but makes a distinc- 
 tion between the conclusive eflect thereof politically, as between the con- 
 .tracting nations, and the conclusive effect of an award as to the individual 
 rights of the citizens to whose benefit the judgment is to enure. 
 
 There is under this treaty af New Echota no room for any such distinc- 
 tion — for any escape from the principle, that the judgment of the commis- 
 .sioners is final and conclusive as between the parties to the adjudication. 
 The treaty of New Echota, made and concluded between the United States 
 and the Cherokee nation, establishes the court of commissioners for the 
 very purpose of examining and adjudicaung the claims of individuals 
 against the United States; declares "that their decisions shall be final; and 
 
 i 
 
Mis. No. 8. 21 
 
 on their certificate of the amount due the several claimants, they shall be 
 paid by the United States." 
 
 By the terms of the treaty, the cases to be adjudged by the court of 
 commissioners are, the several claims of individuals, as the parties plain- 
 tiffs, against the United States as the party defendant — (and most bitterly 
 have these claims been contested and defended by the Commissioner of 
 Indian Affairs.) 
 
 Tivis opinion of the Attorney General is in a case properly and clearly 
 within the provisions of the treaty: the effort and intent of the application 
 for the opinion of the Attorney General was to revise and annul the deci- 
 sion of the commissioners, as certified in favor of the claimant. 
 
 The case comes to this: Rogers presented his claim to the second board 
 of commissioners for improvements clearly within the stipulations of the 
 treaty. The United States interposed a bar of a former rejection by the 
 commissioners; the second board, upon examination of the matters relied 
 on as being a bar, decided them not a bar. The Attorney General revises 
 the decision, comes to conclusion tliat the decision elaborated by the War 
 Department ought to have been allowed as a bar, and therefore that the 
 second board had no jurisdiction, and their decision in favor of the claim 
 is a nullity. 
 
 If the decisions of the commissioners upon matters directly in issue, 
 and directly decided, are to be overhaled and annulled, because the Attor- 
 ney General and the Executive officers of the United States differ from the 
 opinion of the commissioners, then the declaration of the treaty that the 
 decision of the commissioners ^' shall be final," loses its proper meaning 
 and eftect. 
 
 The Attorney General says: ^^ The present commissioners object that 
 the proceeding was irregular, Rogers having obtained leave to withdraw 
 his papers; and I certainly concur with them, as at present advised, in that 
 view. But the case v-as clearly tijithin tJie jurisdiction, of the first board; 
 was fairly presented, was fully opened; and they, by what seemed to them 
 satisfactory evidence — taken, however, as it is alleged, without sufficient 
 care, perhaps without cross-examination — were convinced that the claim 
 was an unfounded one. They reported upon it as such, directly and posi- 
 tively, and their report was received and recorded as a judgment by one 
 of your predecessors " / / .' 
 
 If the Commissioner of Indian Affairs, or the Secretary of War, thought 
 fit to instruct the commissioners to make a report to them for their use and 
 convenience, such report cannot be evidence against individuals, to con- 
 elude their rights and interests, and to have the legal force and eftect of a 
 decision or judgment, when no such appears in the records of the pro- 
 ceedings of the commissioners done openly and publicly when sitting as a 
 judicial tribunal. Such an attempt, by a Secretary of War, by recording 
 a report in his oflice for the purpose of making it a judgment of the com- 
 missioners, v.^hen no such judgment appears in their own records, is im- 
 potent in law, and an unadvised assumption of power. 
 
 The Attorney General adds: " By what authority did the present com- 
 missioner^s open that judgment? Because it was given in mistake; because 
 there was an irBCgularity in the proceedings, say they: that, if shown in 
 proper time, would be a very good reason for reversing it in a competent 
 ■court of apj>eals (but there is none such provided here,) or is a good ground 
 addressed to the discretion -of the same court for a new trial; or finally, 
 
22 Mis. No. a . . ' . 
 
 may, in re minime dnbia, justify an interference of the government^ partj 
 to the treaty, to enforce the doisig of justice under it; and in this last case 
 it becomes a pohtical question again as it was at first." 
 
 The Attorney General has opened a decision and certificate of the com- 
 missioners in a case confessedly and undoubtedly within the stipulations 
 of the treaty. He has exercised the power of an appellate tribunal, re- 
 viewed the facts and the law arising out of the facts directly adjudicated 
 by the court of commissioners, upon a plea collateral, and not touching the 
 merits of the claim, but a technical special plea to evade the merits, which 
 are clearly in favor of the claimant. By reversing the opinion of the court 
 upon this minor matter, not at all involving the merits of the ckiim, the 
 Attorney General came to his conclusion that the court had not jurisdic- 
 tion. That the first board had jurisdiction to allow the claim, is expressly 
 declared. The questions whether the first board had rejected the claim,. 
 and whether that board had not improperly written a letter to the Commis- 
 sioner of Indian Affairs, and whether that letter should stand for a deci- 
 sion when no decision appeared on the records of the court of commis- 
 sioners, were questions involved in the decision of the second board, and 
 decided in favor of the claimant. That is the decision reviewed and re- 
 versed by the Attorney General ; and because he differs from the court of 
 commissioners upon those collateral questions not touching the merits of 
 the claim, he pronounced that the court of commissioners had no jurisdic- 
 tion. The treaty pronounces that the Attorney Gensral had no jurisdic- 
 tion. Unhonored is the majesty of the treaty, fallen is the dignity of the 
 court established by the treaty to adjudicate finally between the two con- 
 tracting nations, if the decisions of that court can be reviewed and re- 
 versed by a subordinate officer, a retained attorney,, of one of the con- 
 tracting powers. 
 
 There was no judgment of the first commissioners to open, except a 
 pretended one, manufactured in the Indian office, or in the War Depart- 
 ment, without color of authority but that lawless will which feels power 
 and forgets right. There was good cause for disrespecting that pretended 
 judgment when it M'-as relied on to defeat justice in the same court, al- 
 though holden before different judges. It was the court established by 
 the treaty; deriving its powers and jurisdiction from the treaty; the same 
 court, whensoever in session ; not at all changed as to its powers or juris- 
 diction, howsoever the particular persons invested with commissions to- 
 hold the court might be chauged. That there is not any competent cours 
 of appeals provided for reversing a decision of the coint, whether by the 
 first or the second, or third or fourth set of judges who successively held 
 the court, is clear; not even the w^hole e3ecutive depaitment of the govern- 
 ment of the United States could revise and reverse a decision of the board 
 upon the questions, or either of them, presented by the Secretary of War 
 for the opinion of the Attorney General, otherwise than by lawless power 
 and a breach of that public faith which was pledged by the treaty. As to 
 the resort to the political power of the Cherokee nation, a party to the 
 treaty, to enforce the doing of justice by the United States, the other party 
 to the treaty, the memoriahsts have no apprehension, no belief, that such 
 will ever become necessary. On the contrary, they have full belief and 
 confidence that the high authorities of the United States will, when in- 
 formed of the past; take due case to remoYe those obstructions which have 
 
Mis. No. 8. 23 
 
 heretofore been cast in the way of the fulfilment of the treaty of New 
 Echota. 
 
 The Attorney General has asked, ^' Where does a board of commission- 
 ers, authorized only to examine cases not passed upon by the former 
 board, find authority to re-examine one that was?" 
 
 That interrogative takes by surreption the proposition that the second 
 board of commissioners was confined, in its authority, within narrower 
 limits than those assigned by the treaty. 
 
 Where did the Attorney General find authority to deny the cognizance 
 of the court of commissioners to grant rehearings and new trials in cases 
 passed upon by the former board? Nowhere but in the instruction given 
 by the Commisssoner of Indian Affairs to the commissioners. The Com- 
 missioner of Indian Affairs could not by his instructions limit the author- 
 ity of the court established by the treaty, as the Congress of the United 
 States may limit the jurisdiction of the courts respectively established by 
 law. The treaty cannot be altered by the instructions of the Executive. 
 The treaty does not speak of a first and second board, nor of first, second, 
 third, and fourth terms of the court of commissioners. It provides for 
 commissioners to examine and adjudicate all claims under the treaty. 
 The powers necessary and proper to attain the ends of justice are in^plied. 
 These include the filling of vacancies which happen by deaths, resigna- 
 tions, (fcc; they imply a tenure of office not dependant upon the will of 
 the appointing power, one of the interested contracting parties, and the 
 debtor party; they include the power to grant new trials and rehearings, 
 and to correct irregularities and mistakes. 
 
 The Attorney General, to sustain his argument, puts an extreme case, 
 viz: " Had these gentlemen passed sentence of death upon an Indian, 
 they, and all engaged in executing their judgment, would have been 
 guilty of murder." This supposition is not very complimentary to the in- 
 telligence or trust-worthiness of the gentlemen appointed by the President, 
 by and with the advice and consent of the Senate. But if such a sen- 
 tence should have been passed, the commissioners must have given their 
 certificate of the decision in the supposed case somewhat in this form: We 
 certify that we have examined and adjudicated the claim of A B, a Chero- 
 kee Indian, and find that the sentence due to him under the treaty is, to be 
 hung by the neck, with a hempen rope, until he is dead; to be paid by the 
 United States, under the Cherokee treaty. Signed, &.c. As the expense 
 would have fallen on the treasury of the United States, the Commissioner 
 of Indian Affairs would have discovered that there was no appropriation 
 by the Congress for the expense of the rope, and other incidents, and 
 therefore would have stopped the certificate, (as he has done many others 
 adjudicating money,) and so no murder would have come of it. 
 
 The treaty has been ratified by the United States. The decisions of 
 the commissioners are to be final, by the very terms of the treaty. The 
 danger to the treasury of the United States possible under the treaty, was 
 a matter to be considered when the subject was in treaty and under con- 
 sideration, and before ratification. The government of the United States 
 has the sole power of appointing the commissioners. In that, it has abun- 
 dant security against the danger to the treasury of the United States from 
 the possible abuse of the powers conferred on the commissioners in the 
 17th article. It is not, on the part of the United States, a fair argument 
 against letting the certificates of the commissioners have their full and 
 
24 Mis. No. 8. 
 
 conclusive effect according to the treaty, that the United States might hap- 
 pen to appoint as commissioners men so ignorant or so httle trustworthy 
 as to pass " sentence of death on an Indian." 
 
 On the other hand there is a security due to the Cherokees, the other 
 party to the treaty. That security consists in the integrity, capacity, fit- 
 ness, and independence of the commissioners, and in the final effect of 
 their decisions when perfected and certified. If they may be revised 
 and annulled by the Executive of the United States, upon the pretence 
 that the commissioners have exceeded their jurisdiction, then the Chero- 
 kees have not the security contemplated by the sense and meaning of the 
 seventeenth article. The debtor becomes the judge of what he will pay^, 
 instead of the judges appointed under that article of the treaty. 
 
 It is inconsistent with the terms of that article to say the certificates of 
 the commissioners shall undergo the supervision of the Attorney General 
 of the United States, or of the Department of War. It is a limitation upon 
 the powers conferred upon the commissioners, imposed by the Executive 
 of the United States after the treaty was ratified, contrary to the 2d and 3d 
 general axioms before cited. 
 
 In a controversy between two citizens about the terms of a complicated 
 covenant, what would be thought of the fairness of a proposition of the 
 defendant that the meaning and extent of his covenants should be deter- 
 mined by his own retained counsellor and attorney, indoctrinated into the 
 versions of the instrument made by the interested defendant? 
 
 The claims presented before the commissioners for adjudication are sub- 
 jects open to free discussion before the commissioners. Then and there is 
 the time and place for the United States, by their attorneys and counsellors 
 learned in the law, to argue that this or that claim is not within the treaty. 
 After the commissioners have decided and certified their decision, then 
 that the United States shall send that decision to the Attorney General of the 
 United States for his commentary, revision, and opinion as to its validity, 
 is an after limitation and restriction of the povv^ers and authorities of the 
 commissioners, contrary to the final effect of their certificates, as agreed by 
 the seventeenth article of the treaty. It is a supplement, a proviso to the 
 seventeenth article not therein expressed, a mental reservation, a condi- 
 tion, directly repugnant to the sense and plain meaning of that article as 
 concluded, signed, and ratified. 
 
 The Cherokee nation, the one party to the treaty, by the seventeenth 
 article had a consideration, an inducement, for the cessions and stipula- 
 tions on their part, and a security for the fulfilment of the stipulations on 
 the part of the United States in a court of commissioners to be appointed 
 specially to examine and adjudicate all the claims against the United States, 
 whose decisions it w^as agreed should be final. To this both contracting 
 nations assented. The Cherokees are not subject to the general laws of 
 the United States; they have no voice, no representation, in the enactment 
 of those laws, nor are they bound to take notice of them. The resort to 
 the opinion of the Attorney General of the United States, and its effect upon 
 the officers of the treasury and other departments, are matters of which 
 the Cherokees had no knowledge, nor were they bound by any such. In 
 the treaty no allusion is made to any such power to control the certificates 
 of the commissioners; no such quahfication, no such proviso, is annexed 
 to the agreement that the certificates of the commissioners shall be 
 final. To annex such qualifications now that the treaty is ratified; would 
 
 
Miso No. 8. 
 
 be to bind the Cherokees by the laws made for the regulations of the in- 
 ternal atfairs of the United States, whereof no nation was bound to take 
 notice in making a treaty with the United States, and is in direct conflict 
 with the words, sense, and meaning of the treaty. 
 
 Attorney General Legare in his opinion professes to have disposed of the 
 opinion of Attorney General Butler, which had been previously given in 
 respect of this treaty of New Echota. The opinion of Attorney General 
 Butler is of the 2Tth August, 1S3S, addressed to the Secretary of War. — 
 (See vol. Opinions of Attorneys General, p. 1210.) . : , 
 
 He says: '' ' ,• ' 
 
 " The treaty provides that the claims arising under the treaty shall be 
 examined and adjudicated by commissioners to be appointed by the Presi- 
 dent, by and with the advice and consent of the Senate, and that their de- 
 cision shall be final. I am satisfied that all the opinions given in this 
 office in respect to the claims, have been extra official and unauthorized; 
 the Attorney General having no power to give an official opinion on the 
 request of the head of a department, except on matters that concern the 
 official powers and duties of such department. The character of the 
 Chevokee board of commissioners is in principle the same v/ith that of the 
 boards appointed under the conventions with Spain, Naples, and f^rance; 
 and it was never supposed, in either of those cases, that the Attorney 
 General could be called on, through the head of any department, to ex- 
 amine and discuss the various claims litigated before them," &c. 
 
 In aid of the general principle of the inviolability of decisions of tribunals 
 created by treaty declaring them final, and of the impropriety of the inter- 
 ference of the Executive to inquire into, or in any manner to revise or alter 
 those decisions, we refer to two previous opinions given by the Attorneys 
 General of the United States, in those early seasons of virtue when public 
 functionaries were determined in spirit to do justice, and resolute against 
 motives to warp their integrity. 
 
 The one is the opinion of Attorney General Breckenridge, December 24, 
 1S05, on an award of the commissioners under the Tth article of the treaty 
 of the United States and Great Britain of 1794 — (Opinions of Attorneys 
 General, vol. 1, p. 97.) The other of Attorney General Rodney, of July 
 22, 1S07' — (vol. of Opinions of Attorneys General, p. 106;) both addressed 
 to the Secretary of State. 
 
 Mr. Breckenridge said: " This would be going into a re-examinaiion of 
 the matters referred to and decided on by the commissioners, of which, 
 under the treaty, they had the exclusive and final jurisdiction." 
 
 Mr. Rodney said: "The award is the legal and the statutable or con- 
 ventional evidence for proving to whom the money must be paid. It is 
 the instrument established by the treaty, and you cannot travel out of the 
 record, which is final and conclusive as to the persons who are claimants; 
 no po\A^er of appeal or review exists to correct errors or mistakes of the com- 
 missioners." 
 
 By the faith of treaties \s meant a sincere resolution, a firm constancy in 
 fulfilling the engagements declared in a treaty. That faith is sacred and 
 holy by the law of nations; it secures the peace and safety of nafions. On 
 the due observance and execution of treaties depends all the security which 
 States and nations have with respect to each other. We can no longer de- 
 pend on conventions to be made, if those that are made be not maintained 
 and fulfilled. Nations have a riffhtto unite to humble him who breaks his 
 
26 Mis. No. 8. 
 
 treaties, and refuses to fulfil them upon pretensions ill -founded and frivo- 
 lous. 
 
 That the decisions of the commissioners shall be final, and that " on 
 their certificates of the amount due the several claimants, they shall be paid 
 by the United States," are engagements by the United States expressly de- 
 clared by the treaty. How is this stipulation fulfilled when the certificates of 
 the commissioners are reviewed, reversed and annulled by the law officer of 
 the United States? How is the faith due to the certificates observed, if the 
 law officer of the United States may advise the accounting officers of the 
 treasury that the commissioners have exceeded their jurisdiction? Of what 
 value is a judgment without execution, or the means of getting payment? 
 What is the dignity of a court, what confidence can be reposed in its de- 
 cisions, of what worth areits judgments, if the agents and retained attorney 
 of the defendant may commune with and instruct the judges secredy as to 
 the decisions thoy shall makcj and if, when made, they may be reviewed 
 and annulled by the attorney of the defendant? 
 
 Expressions are thrown into the opinion of the Attorney General Legare, 
 which, coupled with the positive decision as made in the particular case, and 
 with the overruling of the previous opinion of Attorney General Butler, had 
 the effect to encourage the officer of Indian affairs and the Secretary of War to 
 disrespect the decisions and cert,ifica;esof the commissioners, and to with- 
 hold payment, as will be seen by the report of Mr. Foot, and the resolution 
 thereon adopted by the Senate and House of Representatives, approved June 
 15, 1844. (See doc. 391, Mr. Foot's rep., 28th Cong. Istsess.; Reports 
 of Committees of House of Reps., 1843-44, vol. 2.) 
 
 The majority of the Committee on Indian Affairs made their report, (No. 
 391,) to sustain the grounds taken by the Executive department and the 
 opinion of Attorney General Legare, which was referred to and made a part 
 of the report of the majority of the committee. The minority of the com- 
 mittee made a counter report, denying the right to review or reverse the deci- 
 sions of the commissioners, commented upon the doctrine in the opinion of 
 Attorney General Legare, combatted that opinion by reason and authority, 
 and reported a resolution ordering the Secretary of the Treasury to pay the 
 certificates of the commissioners when presented. The report of the minority 
 of the committee was sustained by the House, and the joint resolution before 
 mentioned was passed and approved. (10th vol. Laws U. S., p. 659.) 
 
 By these proceedings the Congress disavowed the doctrine of review 
 and reversal contained in the opinion of Attorney General Legare, as used 
 in the Department of War, and vindicated the honor of the United States 
 and the faith of the treaty of New Echota. 
 
 Before this proceeding in 1844, the instructions issued by Mr. Harris, 
 and by Mr. Crawford, were operating upon the commissioners, by the in- 
 fluence of the War Department, and by erroneous constructions of the trea- 
 ties, wholly unknown to and withheld from the claimants, until dragged 
 into light by successive resolutions of the one or the other of the houses of 
 Congress. 
 
 Notwithstanding the reconsideration by the second board of commission- 
 ers of claims rejected was so strenuously forbidden, as before mentioned, 
 yet, where such reconsiderations would favor the interests of the treasury 
 of the United States, they were lawful enough, and within the jurisdic- 
 tion of the commissioners. Accordingly, in the instructions of the Com- 
 missioner of Indian Affairs of 28th September, 1842, (Rep. 391, aforemen- 
 
Mis. No. a 81 
 
 tioned, p. 18,) he said, 'H^aluations of improvements appearing by the re- 
 cords of the former boards ' if you are not satisfied with their correctness,' 
 are to be revakied." 
 
 As to claims under the 16th article of the treaty, the commissioners were 
 instructed by the Commissioner of Indian Afiairs as follows : " It is not 
 supposed that any cases of this kind, deserving your favorable considera- 
 tion, \vill be presented; but it is possible there may be." (See Rep. 391, 
 aferementioned, p. 20; and again, p. 22.) "^ Claims under the 16th article, 
 if any such should be preferred, it has been already stated, would not prob- 
 ably be entitled to your favorable consideration." 
 
 Here is a tampering; an instruction from the War Department to prepos- 
 sess and prejudice the minds of the commissioners against a class of claims 
 expressly provided for by the treaty. What are we to think of such a mode 
 of administering justice under the treaty? 
 
 But again, (same page,) an act of Congress, appropriating ,'^50,000 to pur- 
 chase certain lands in the State of Georgia reserved to the Indians by the 
 treaties of 181.7 and 1819, is alluded to, and the proceedings under it are 
 mentioned. ''It is presumed all those fairly entitled to its provisions 
 applied under this law; and if they did not, that they were guilty of laches, 
 which would operate in bar of their claims now." '- All such should be 
 very closely scrutinized; and if they might have availed themselves of the 
 law of 182S, and did not do so, they ought not now to receive your decree 
 in their favor." 
 
 A class of Indians within the State of Georgia who were dispossessed of 
 their improvements and reserved lands, for which no grants had issued 
 prior to the law of Georgia of December, 1833, for "■ regulating Indian oc- 
 cupancy," expressly provided for in the 16th article of the treaty of New 
 Echota, are alluded to in the instruction before quoted, and the claimants 
 are to be cut o& from the indemnities promised by the treaty, by one or the 
 other of two presumptions: 1. That they applied for the benefit of the 
 appropriation by Congress in 1828 to buy their lands, and did sell to the 
 agents of the United States. 2. If they did not, they are to be barred by 
 laches and length of time. 
 
 The appropriation alluded to is by act of 9th of May, 1828. (Laws 
 U. S., vol. 8, p. 45.) The President was to apply the appropriation 
 of .$50,U00 " to the extinguishment of the claims of the Cherokee Indians 
 to all the lands which they occupy within the limits of the said State" of 
 Georgia. If the United States bought their houses, improvements, and 
 possessions, that affirmative should be proved by the United States. The 
 Indians were not bound to prove they did not sell, being a negative inca- 
 pable of being proved. They were neither bound to sell, nor to apply to 
 the agents of the United States to try if a bargain and sale could be agreed 
 upon; therefore no laches could be imputed to them. The instruction to 
 the commissioners to presume a sale to the United States, or to presume 
 laches, in bar of all such claims, was an outrage upon the rights of the 
 claimants, and upon the faith of the treaty. 
 
 The commissioners were instructed by the Commissioner of Indian 
 Affairs, (Rep. No. 391, p. 22,) that "claims which were taken under the 
 treaties of 1817 and 1819, (according to opinion of the Attorney General 
 of 14th May, 1839,) but which were on the land ceded in 1835, are enti- 
 tled to no compensation for the reservations, because they were unauthor- 
 ized, and should have been located on the cessions of 1817 and 1819." 
 
28 Mis. No. 8. 
 
 The opinion referred to (volume of Opinions of Attorneys General, p. 1182) 
 does give the construction to the treaty as stated by Mr. Crawford. But 
 nevertheless, Mr. Attorney General and Mr. Commissioner of Indian Af- 
 fairs are both wrong as to the reservations under the treaty of 1S17. 
 
 The Sth article of that treaty expressly allows the reservations " on the 
 lands that are noiv, or that may hereafter be. surrendered to the United 
 States." The treaty of 1819 confines reservations to the lands ceded by 
 that treaty. 
 
 This erroneous instruction has been the source of difficulty and im- 
 proper rejection of claims; and is an example, among many others, to 
 prove the impropriety of the course of trying the rights of individuals by 
 opinions made up in an executive chamber, where the individuals to be 
 aiFected are unheard, and have no opportunity to defend their rights. The 
 treaty of New Echota established a court of commissioners, wherein busi- 
 ness ought to have been conducted openly; where the interpretations of the 
 treaties might have been examined and discussed by both parties, so as to 
 arrive at their true sense and meaning, so essential to the due administra- 
 tion of justice. The condemnation of whole classes of private rights and 
 interests under the treaties, by such secret interpretations and destructive 
 extra-official opinions, and mandatory instructions, sent to the judges and 
 concealed from the claimants, was an innovation and assumption at war 
 with the principles of natural justice, and in scorn of the Divine example 
 set us, in not pronouncing against Adam unheard. 
 
 The Commissioner of Indian Afiairs instructed the comniissioners, (re- 
 port No. 39], aforesaid, p. 20,) "There are no pre-emption rights; they 
 were provided for by the 12th article of the original treaty, but abrogated 
 by the first of the supplemental articles, and never had more than an in- 
 choate existence, which is gone." 
 
 The rights of pre emptions of the lands were parts and portions of the 
 inducements and considerations of the treaty as concluded and signed on 
 the 29th December, 1835, whereby the Cherokees ceded their lands to the 
 United States. 
 
 The 12th article relates to " those individuals and heads of families of 
 the Cherokee nation that are averse to a removal to the Cherokee country 
 west of the Mississippi, and are desirous to become citizens of the United 
 States," &c. The treaty distinguishes these into two classes: 1st, those 
 then residing in the States of North Carolina, Tennessee and Alabama; 
 2d, those who then resided in the State of Georgia, but were willing to 
 remove out of Georgia and setde in North Carolina^ Tennessee, or Ala- 
 bama. 
 
 To the first class, pre-emptions are given of 160 acres, or one quarter section 
 of land, to each head of an Indianfamily, to include their present buildings 
 or improvements. But to the second class, their pre emptions were not to 
 ^e taken in Georgia to include their buildings and improvements in that 
 State, but they were to remove into North Carolina, Tennessee, or Alaba- 
 ma; and therefore they were allowed the pre-emption of 160 acres of land 
 to each head of an Indian family, to be located within two years, in either 
 of those three States. 
 
 The United States being under an express contract with Georgia respect- 
 ing the extinguishment of the Indian title to lands within the State of 
 Georgia, and for the benefit of that State, were not willing to let the In- 
 dians living in Georgia retain their buildings and improvements, with one 
 
Mis. No. 8. 29 
 
 b.undred and sixty acres around them, in that State; but such were to re- 
 move from Georgia, and locate their pre-emptions in one of those other 
 States. 
 
 Hence the distinction between the two classes: the one class of pre - 
 emptioners confined and located, to include their exisiing buildings and 
 improvements; the other class unlocated, but to be located within two 
 years. 
 
 These settlers and improvers had, by the laws of nature, of nations, 
 the acknowledgment of the United States, and by the laws and usages of 
 the Cherokees, vested rights to their buildings and improvements, and 
 rights of perpetual occupancy of the soil, which was of the common do- 
 main of the Cherokee nation at and before the treaty of New Echota was 
 concluded and signed, in December, 1835. 
 
 By this treaty of December these settlers and improvers, in common 
 with the other Cherokees, surrendered their common property in the Cher- 
 okee country to the United States, reserving to these settlers and improvers, 
 respectively, these private rights and interests of their buildings and im- 
 provements, with the pre-emption of 160 acres of land around them. To 
 this the parties to the treaty were consenting; it was one of the considera- 
 tions and inducements to the treaty of New Echota of December, 1835. 
 
 These Indians had private interests in their buildings and improvements 
 before the treaty; and by the treaty, when concluded and signed, they ac- 
 quired additional and more extensive interests in the fee simple as pre- 
 emptioners. These rights of pre-emption were incipient; they were m- 
 choafe lights — that is, rights begun, existing — for such is the meaning, in 
 the legal sense as well as in the popular sense. The Avord '' inchoate " 
 signifies begun, commenced. In law there are equitable rights, or rights 
 begun, existing, but requiring something to be done to complete and per- 
 fect them into legal titles. Inchoate rights are property, respected by the 
 law, protected by the law: they are the subjects of agreements and sales; 
 good considerations to support assumpsits. The idea that an inchoate 
 right is no right at all, and therefore not to be paid for if taken away, not 
 to be compensated if annulled to suit the policy of government, is a nov- 
 elty in jurisprudence; and it may be that the Commissioner of Indian Af- 
 fairs had some such idea floating in his brain when, in June, 1838, he in- 
 structed the commissioners that no payment should be made for reserva- 
 tions under the treaties of ISIT and 1819, 
 
 When the President signified his determination not to allow any pre- 
 emptions and reservations, and his desire that the whole Cherokee people 
 should remove west, and a negotiation was set on foot to annul these pre- 
 emptions and reservations, they became the very subjects of the renewed 
 negotiation, for which an equivalent should be offered by the United 
 States. These pre-emptioners and reservees, whose rights and interests 
 were to be annulled, were entitled, by the same principles of natural jus- 
 tice, by the same considerations ot their private rights in their buildings 
 and improvements which had induced the I2th article of the treaty of De- 
 cember, 1835, to have in the new treaty to abolish their rights an equiva- 
 lent compensation therefor. The constitutions, State and federal, have sanc- 
 tified the principle that private rights shall not be taken for public use with- 
 out just compensation. This principle of justice pre-existed ; it was a dictate 
 of right reason, immutable and eternal. Being so, the constitution of the 
 United States has declared and ordained it as sacred, not to be violated. 
 
30 Mis. No. 8. 
 
 Accordingly, when the first supplemental article abolished these pre-emp- 
 tions and reservations, the third supplemental article provided a compensa- 
 tion. 
 
 A sum of money is allowed " in lieu of the said reservations and pre- 
 emptions," which '' shall be applied and distributed agreeable to the 
 provisions of the said treaty." The said reservations and pre-emptions 
 spoken of in the third supplemental article, are those abolished by the 
 first supplemental article; and that first supplemental article says, " It is 
 therefore" (because of the President's determination and desire as afore- 
 said expressed) " agreed that all the pre emption rights and reservations 
 provided for in articles 12 and 13 shall be, and are hereby, relinquished 
 and declared void." In the third article of the supplement the participle 
 •' said," (aforesaid) prefixed to reservations and pre-emptions, relates to the 
 next antecedent, the reservations and pre-emptions mentioned in the first 
 supplemental article, which are those mentioned in the 12th and 13th ar- 
 ticles, and which by the said first article of the supplement are "relin- 
 quished" and declared void. 
 
 These pre-emption rights had existence, they had begun, they were 
 ^^relinquished," by article one of the supplement, in consideration of the 
 3d article of the supplement particularly, and of all the other articles in 
 general. To make an interpretation of the 1st article of the supplement by 
 itself, and, because the pre-emptions are thereby relinquished, that no com- 
 pensation shall be allowed for them, is contrary to the axioms 8 and 9. 
 The articles in the original treaty and in the supplemental treaty are all 
 to be taken together as one whole; and the meaning and effect of any one 
 article are to be collected and explained by others. 
 
 The Commissioner of Indian Affairs instructed the commissioners that 
 reservations were to be paid for, but not pre-emptions. Why not pre-emp- 
 tions? He says "there are no pre-emption rights; they were provided for 
 by the 12th article of the original treaty, but abrogated by the 1st of the 
 supplemental articles." So were reservations abrogated, and " relinquish- 
 ed and declared void," by that same article 1. But pre-emptions, he says, 
 "never had more than an inchoate existence, which is gone." An in- 
 choate existence is not a nullity, is not a nonentity. An " inchoate ex- 
 istence" is a begun existence, a commenced existence. As such it was 
 capable to be transferred, assigned, sold, and relinquished. These pre- 
 emptions so having an "inchoate existence," an existence begun, were 
 sold and "relinquished," by the 1st supplemental article, to the United 
 States, in consideration of the money mentioned in the 3d supplemental 
 article, together with the considerations mentioned in all the other articles 
 in the original and the supplemental treaty, according to axiom 11, before 
 stated. 
 
 After the opinion of Attorney General Legare before noticed, the cer- 
 tificates of the commissioners were disrespected at the War Department. 
 The claimants applied, by a memorial, to the Congress for reUef. Of these 
 doings a history is given in the report No. 391, 2Sth Congress, 1st session, 
 House of Representatives, before mentioned. To that history we refer for 
 the spirit of opposition made to the claims under the treaty of New Echota 
 by the Commissioner of Indian Affairs and the Secretary of War, under 
 the specious pretext of reviewing the decisions of the commissioners " for 
 the single purpose of ascertaining whether the commission had jurisdic- 
 tion;" and by the " m/ie/-e«; power which is necessary to discharge an 
 
Mis. No. 8. 31 
 
 imposed duty, unless prohibited by law;" (as if the treaty of New Echota 
 with the Cherokees was no law or rule of conduct for the War Depart- 
 ment.) 
 
 This power claimed; with the examples, to review the proceedings and 
 facts in the case " for the single purpose of ascertaining whether the com- 
 mission had jurisdiction — if it had not, its acts are void," brings to mind 
 the fable of the pigs who were well secured in their house, with warning 
 by the mother not to open the door until she returned. In the meantime 
 the fox entreated the pigs to be pleased to open the door, only so much as 
 to let him put one foot in to be warmed; after the fox had one foot in, he 
 thrust his whole body in, and devoured the confiding pigs. 
 
 Messrs. Eaton and Hulsley, the commissioners, were removed from office 
 by the President on the 17th January, 1844. — (See the letter of J. M. Por- 
 ter, Secretary of War, to T. H. Crawford, Commissioner of Indian Af- 
 fairs; Senate doc. No. 113, p. 15, 29th Congress, 2d sess., printed by order 
 of the Senate, February 3, 1847.) 
 
 From this dismissal the commission was vacant until June, 1844, when 
 Messrs. Mason and Washington were commissioned for one year, or during 
 the pleasure of the President. From June, 1845, the commission was 
 vpcant until July 22, 1846; then Messrs. Harden and Brewster were com- 
 missioned for one year, or during the pleasure of the President; their com- 
 missions have expired, and the commission is now vacant. 
 
 Before these last commissioners commenced their sessions, the Commis- 
 sioner of Indian Affairs (Mr. Medill) issued his instructions to them in a 
 letter dated " War Department, Office Indian Affairs, August 27, 1846." 
 (Senate doc. No. 113, 29th Congress, 2d session; printed February 3, 
 1847.) 
 
 In this letter of Mr. Medill, Commissioner of Indian Affairs, the poison 
 of former instructions is contained, by reference to them, with a quintes- 
 sence distilled by himself. 
 
 Mr. Medill says: "The accompanying copy of a communication to Messrs. 
 Carroll and Lumpkin of 1836, a copy of a communication from this office 
 to the second board of 28th September, 1842, to be found in House report 
 No. 391, 28th Congress, 1st session, pp. 17 to 24, and the enclosed copy 
 of a letter of my predecessor of 20th June, 1844, to the third commission, 
 embody the views of the department, at the respective dates, respecting the 
 various classes of claims arising under the Cherokee treaty of 1835-'36. 
 
 " Those views may be modified in some degree by the provision of the 
 treaty recently made between the United States and the Cherokees; but as 
 the law making provision for the organization of the present commission 
 provides for the reference of any case to the Attorney General, in which 
 you may differ in opinion, it is not regarded by the department as neces- 
 sary to give you special instructions in the premises. 
 
 "■ I refer you, however, to the House document above named, at page 
 58, for an opinion of Attorney General Legare respecting \he jurisdiction of 
 the commission, and the duties of the executive officers in regard to the 
 decisions of said board, and suggest that you fully and freely advise with 
 this department on the several matters committed to you. 
 
 " In view of the modification of certain parts of tire treaty of 1835- '36 
 by that just ratified, and of the change consequent thereupon, it is deemed 
 advisable by tliis department that no certificates be issued by your commis. 
 
32 Mis. No. 8. 
 
 sion on the decrees that you may make, until you shall be informed by it 
 that there is money in the treasury applicable to their payment." 
 
 The compensation to be allowed them is there treated of as contin- 
 gent upon a ratio between the commissioners and their secretary, after de- 
 ducting the contingent expenses of the board from the appropriation of 
 ,11)7,000. 
 
 From this letter and the instructions previously issued from the office of 
 the Department of War, through the Commissioner of Indian Affairs, to the 
 commissioners appointed successively under the seventeenth article of the 
 treaty of New Echota, it appears that this court of commissioners, insti- 
 tuted by the two contracting powers, has been treated and used from the 
 beginning, by the Commissioner of Indian Affairs, as an instrument, sub- 
 ject to orders and instructions; that the commissioners of the treaty were 
 kept in the leading-strings of the War Department. To destroy the inde- 
 pendency of the court of commissioners, their tenure of office has been 
 throughout " during the pleasure of the President," as expressed in their 
 commissions, made out and recorded in the Department of War; and the 
 first board was dissolved by order of the Commissioner of Indian Affairs 
 of the 17th January, 1839, before referred to; and the second board was 
 dissolved by the removal of the commissioners from office by the letter of 
 J. M. Porter, Secretary of War, of the 17th January, 1844. — (Senate doc. 
 No. 113, 29th Congress, 2d sess., p. 15.) 
 
 By the constitution of the United States, article 6th, " all treaties made 
 or to be made under the authority of the United States shall be the su- 
 preme law of the land." By art. 3, sec. 2, the judicial power of the United 
 States extends to all cases arising under the constitution and treaties made 
 or which shall be made under their authority; by the treaty of New Echota 
 a high judicial tribunal, of transcendent and final jurisdiction, is established 
 to examine and adjudicate all claims arising under the treaty, against the 
 United States; by the treaty, the judges who are so to examine and finally 
 adjudicate are to be appointed by the President, by and with the advice 
 and consent of the Senate of the United States; by art. 3, sec. 1, of the 
 constitution, '■' the judges both of the supreme and inferior courts shall 
 hold their offices during good behaviour, and shall receive for their services a 
 compensation which shall not l:-e diminished during their continuance in 
 office." According to the spirit of the constitution of the United States, 
 according to the meaning, spirit, and faith of the treaty of New Echota, 
 by the reason of the case, the judges of the high court of commission in- 
 stituted by that treaty ought to have been commissioned otherwise than 
 at the pleasure of the President of the United States. But the fact that 
 the commissions were so issued did not justify the arbitrary power assumed 
 by the Commissioner of Indian Affairs over the commissioners and their 
 duties, and over the treaty. By this letter of the 27th August, 1846, to 
 the commissioners, Messrs. Harden and Brewster, they were put under 
 instructions and in the service of the Department of War, as clay in the 
 hands of the potter, to be moulded to the purposes of the department. 
 
 The same unfaithful interpretations of the treaty, the same restrictions 
 upon the powers of the court of commissioners, which have been heretofore 
 commented upon, were reiterated by Mr. Medill; the same power to revise 
 and annul their decisions, which had been the subjects of examination and 
 animadversion in the report of Mr. Foot, in the Congress, in 1844, and 
 which had been disavowed by the joint resolution reported from the com- 
 
•c^ 
 
 Mis. No. 8. 33 
 
 mittee by Mr. Foot, adopted by the Senate and House of Representatives, 
 and approved by the President, before referred to, is again assumed by this 
 letter of Mr. Medill as Commissionor of Indian Affairs, with these aggra- 
 vations, that the commissioners are instructe4 that " you fully and freely 
 advise with this department on the several matters committed to you;" 
 and " that no certificates be issued by your commission on the decrees you 
 may make until you shall be informed by it that there is money in the 
 treasury applicable to their payment." 
 
 Is this the high court of commissioners provided for by the two con- 
 tracting nations, by which all claims under the treaty were to b.e examined 
 and adjudicated? whose decisions were to be final; whose certificates were 
 to be paid by the United States? Do such instractions, such communica- 
 tions, to the commissioners appointed under the treaty, comport with the 
 office and character of judges, or the independence of a judicial tribunal? 
 Do they befit the honor and dignity and good faith of the United States? 
 Do they consist with the faith of the treaty ? They are condemned by the 
 axioius 1, 'S, 12, 13, 14, and 15, before cited. 
 
 There is no difference in the injury to the Cherokees, whether these 
 wrongs were committed by the blundering ignorance of a Commissioner of 
 Indian Affairs, or impudently, knowingly, and wirully, from a selfish liew 
 (as mistaken as it is low minded and shortsiglitcd) of commending himself 
 to favor for having saved some dollars to the public treasury at the expense 
 of the honor of the United States, and in broach of the faith of a treaty 
 with a power too u'eak and dependent to seek redress by reprisals. 
 
 The injury to the Cherokees might have been less, if these instructions 
 had not been secreted from them and their counsel until the mischief had 
 been accomplislied. 
 
 Neither the report of Mr. Foot, of the Committee on Indian Affairs of 
 the Mouse of Representatives, nor the joint reso/iition of the Senate and 
 House of Representatives, approved by the President of the United States, 
 of the 15th June, ISll, nor the moral perceptions of the Commissioner of 
 Indian Affairs, could confine him withiu the border of his official duties, 
 nor restrain him from issuing to Messrs. Harden and Brewster, the com- 
 missioners under the treaty of New 7:i^chota, the very improper and gross 
 instructions contained in his letter of August 27, 1846. 
 
 The previous instructions therein referred to have been noticed, and 
 their errors and improprieties pointed out In these instructions of Mr. 
 Medill, the former instructions that the claims passed upon by a former 
 board are not within tlie jurisdiction of the existing commission, together 
 with the opinion of Mr. Legarc on that subject, and the alleged duties " ot 
 the executive officers' in regard to the decisions of the said board," (that is, 
 to revise and annu^ them on the principles expressed in Mr. Legare's opin- 
 ion,) are particularly noted and reiterated. 
 
 Tiie design of this instructioti was to fasten upon the claimants the re- 
 jections caused by the previous erroneous instructions; decisions so palpa- 
 bly erroneous in matters not suscepfible of doubt, as that their correction 
 by any court having justice in view would inevitably follow, unless the 
 commissioners should be prevented by an instruction that such claims ar-; 
 were passed upon by a former board were not within the jurisdiction of 
 the existing commission. 
 
 Why not have referred to the refutation of Mr. Ijegare's opinion, con- 
 tained in the report of Mr. Foot, sustained by the House and by the Sen- 
 3 
 
34 Mis. No. 8. 
 
 ate, and by the passage of the joint resolution of the Congress? Was it 
 fair to point to the error, and to omit to notice the refatation; to administer 
 the poison and omit to mention the antidote? Uo these instructions of 
 Mr. Medill to Messrs. Harden and Brewster comport with a spirit and de- 
 sire to administer justice fairly and impartially? Do they comport with a 
 decent respect for the joint resolution of 15th of June, 1S44, with that 
 obedience to the law which becomes a public officer? Do they exhibit 
 respect for the court of commissioners establislied by the treaty? or an inten- 
 tion to sufter the treaty to be fulfilled in honesty and good faith? or that 
 regard for the good faith of the United States, and of the obligation of the 
 Jaws, which should be observed by a public officer of the United States? 
 Do they not bear internal evidence of an arbitrary will, and of the absence 
 of some of the qualifications essential to a Commissioner of Indian Affairs, 
 the want of which freezes the generous confidence of a people and turns it 
 into apprehension and fear? To these questions the Congress and Presi- 
 dent of the United States may respond; to propound them is the painful 
 duty of your memorialists. 
 
 The first reading of the instruction not to issue certificates until in- 
 formed by the department " that there is money in the treasury applicable 
 to their payment," would leave the impression that there was a failure of 
 appropriation by Congress to that object. The truth is otherwise. 
 
 i'he Congress by act of 2d July, 1836, appropriated four million five 
 hundred thousand dollars, according to the effect of the first and second 
 articles of the treaty of New Echota of 1S35-'G. 
 
 Also, in the same act, the further sum of .$600,000 was appropriated to 
 pay for removals and spoliations, according to the tliird supplemental arti- 
 cle; and by the act. of 12th June, 183S,\he further sum of $1,047,067 
 was appropriated " for all objects specified in the third" supplemental arti- 
 cle, and for aiding the subsistence of the Indians after their removal west. 
 (See 9th vol. Laws U S., pages 453 and 778 — edition by Clerk of House 
 of Representatives.) 
 
 The books of the Treasury Department show that those appropriations 
 were not exhausted by payments to the objects of appropriations, neither 
 at the date of Mr. -Medill 's letter, mr when the commission expired in 
 July, 1847, and that they are not now exhausted. Neither were the ap- 
 propriations for the objects of the third supplemental article exhausted by 
 payments to the objects of appropriation at ii>j- date of Mr. MedilTs letter to 
 the commissioners, nor are they now exhausted. As to the treaty of Wash- 
 ington then lately concluded, bearing date August 6, 1846, there is noth- 
 ing in it to arrest, or in any manner to impede, the examinations and 
 adjudications by the commissioners under the treaty of 1835-'36, or to 
 divert the appropriations which had been theretofore made by the Congress 
 from the objects for which they had been so made. An account in full of 
 the whole sum of $6,647,067 was thereby prouiised the Cherokees, but 
 that account and settlement was to be credited by all sums which had been, 
 " or maybe hereafter, properly allowed and paid under the treaty of 1835;" 
 and by the tenth article it was explicitly declared that the rights and claims 
 which the Cherokees then residing in the States east of the river Missis- 
 sippi had, or may have^ shall not thereby be in any manner taken away 
 or abridged. 
 
 VVliy, then, refer to the treaty then lately executed as an excuse for the 
 instruction to the commissioners not to issue certificates until informed by 
 
Mis. No. 8. 35 
 
 ■the department " that there was money in the treasury appHcable to their 
 payment?" The mere account promised by that treaty recently made 
 has nothing starthng in it to the department, unless the specific appropria- 
 tions tor the objects mentioned liad been misappHed or wasted, or diverted 
 from the specific objects of the appropriations. Did the Commissioner of 
 Indian Affairs intend by his words to insinuate that the appropriations 
 aforementioned had been wasted or misappHed? 
 
 But if such misappUcation or waste had been committed, the Cherokee 
 claimants ought not to have been delayed or hindered in obtaining their 
 certificates, the evidences of their demands, by any such misconduct of 
 the officers of the United States. 
 
 Whether there was or was not money in the treasury applicable to the 
 payment of the certificates of the commissioners, was a question which had 
 no connexion with their duties; they did not pay them, nor look after 
 their payment. That belonged to the duties of the Secretary of the Trea- 
 sury under the joint resolution of the two Houses of the Congress, approved 
 June 15, IS44. The claimants were entitled to their certificates upon ad- 
 judications in their favor. If presented at the treasury for payment, the 
 Secretary of the Treasury had the power and the will to cause them to be 
 paid. If the appropriations for that object had been misapplied and di- 
 verted to other objects, or wasted, it was the duty of the Secretary to look 
 into that m.atter; the claimants could not. If the certificates when presented 
 were not paid, the claimants having the certificates could apply to the Con- 
 gress, as they had been compelled to do before. The claimants in applying 
 to the Congress tor redress would not apply in vain. When the holders of 
 the certificates of the commissioners had asked the Congress for their bread^ 
 that department of the govertimeut had not given them a stone. 
 
 When the true state of the facts are looked to, when it is considered the state 
 of the treasury cannot al^er the treaty, nor curtail the jurisdiction, powers and 
 duties of the court of commissioner.^, the allusion to the late treaty and the 
 state of the treast^^y turns owt to be an artful use of equivocal language to 
 avoid a direct and positive assertion of that which was untrue, and yet give 
 a gloss for the instruction not to issue certificates until informed by the War 
 Departme^*it as to the state of the treasury. 
 
 By this instruction against issuing certificates until informed by the De- 
 partment of War '^ that there is money in the treasury applicable to their 
 pavment," (a matter belonging properly to the Department of the Treasury,) 
 united with the odier instruction to the comuiissioners, " that you advise 
 lully and freely with this department on the several matters committed to 
 you," the power is retained to the War Department to revise, alter and con- 
 trol the decisions of the commissioners at tlie pleasure of that department, as 
 being colorably the acts of the commissioners themselves, "l^'hat department 
 did not desire again to adventure so far as of itself, and by its own " power 
 inherent," to revise and annul the decisions of the commissioners after the 
 certificates had issued to the several claimants. The joint resolution of 
 June 15, 1S44, would stand in the way of such after revisal and annulling. 
 The holders of the certificates would then have the law, the rule of conduct 
 prescribed by that joint resolutioji, on their side, in oppositimi to the con- 
 duct of the War Department in attempting to refuse payment of the certifi- 
 cates in the hands of the holders. 
 
 These instructions taken together, or singly, were in their design and 
 effects arbitrary assumptions of power, unwarrantable interlerences with 
 
86 Mis. No. 8. 
 
 the duties of the court of commissioners estabhshed by the treaty, a hire- 
 drance and delay to the claimants, and a breach of good faith, against which, 
 and against all similar acts in future, the claimants under the treaty have- 
 a right to expect protection from the government of the United States. 
 
 By the reason of the case, by necessary implication and consequence of 
 the treaty, the court of commissioners should have been independent of the 
 will and pleasure of the President of the United States. By like reason and 
 implication, and the settled opinions of mankind respecting the administra- 
 tion of justice by a judicial tribunal, the proceedings of the court of commis- 
 sioners should have been open and public, with the benefit of counsel to 
 the claimants, (who were of themselves not qualified to manage their claims 
 before the court;) they had a right to hear the objections made to their 
 claims, and to combat the objections. The conducting of the business in 
 conclave, and by private instructions and advisements between the Com- 
 missioner of Indian Affairs or the Secretary of War and the court of com- 
 missioners, was an outrage upon the treaty and a mockery of justice. 
 
 By these secret doings, the faith of the treaty, its meaning, soul and spirit^ 
 and the dignity of the courtof the treaty, have been wounded and insulted 
 as deeply as the spirit of the constitution of the United States would be, if 
 the President of the United States should, in cases in which the United 
 States was party defendant in the Supreme Court of the United States, 
 send his instructions to the justices of that court as to the decisions they 
 should give, directing them not V) grant rehearings, nor rearguments, nor 
 to take cognizance to review cases v/Uich had been adjudged in favor of the 
 United States, nor to issue execution until advised so to do by the Presi- 
 dent, and instructing the justices to advise fully and freely with him re- 
 specting the matters pending before them. 
 
 Fortunately for the citizens of the United States, the judges of the courts 
 of the Union hold their offices during good behavior; the President cannot 
 remove them at his pleasure; their salaries are fixed, and can not be taken from 
 them during their good behavior, nor diminished, fortunately for the 
 people of the United States, the moral sense of the President would not 
 allow him to make such communications to the justices of th-at august tri- 
 bunal, and his common sense teaches that such an offence would meet 
 with merited contempt, disgrace and punishment. 
 
 Unfortunately for the Cherokees, the moral sense of the Commissu-ner of 
 Indian Alfairs, for three successions, did not shrink from plying the com- 
 missioners successiA^ely appointed under the treaty of New Echotawith iti- 
 structions and directions, and erroneous interpretations, in violation of the 
 treaty, to the grievous injury of the claimants and in disregard of the good 
 faith of the United States. Most unhappily for the Cherokees, the com- 
 missioners, the jndges of the court instituted by the treaty of New Echota, 
 have been commissioned to hold their offices at the pleasure of the President 
 of the United States, and have been made to understand and believe that 
 their continuance in the enjoyment of the emoluments of their offices de- 
 pended upon their obedience to the instructions so issued by the Commis- 
 sioner of Indian Affinis. 
 
 The good Book instructs us, " Where a man's treasure is, there his heart 
 will be also." Man is frail, and liable to fall if placed in the way of temp- 
 tation. And though those are criniinal who do not withstand the tempta- 
 tion, neither are those innocent who lay the bait in their way. For the 
 honor of human nature, there are men firm and resolved in the right, inflex- 
 
Mis. No. 8. 37 
 
 ible to ills, and obstinately just. That such are comparatively so few, the 
 ■Cherokee claimants under the treaty of New Echota have abundant cause 
 to lament. 
 
 Instructions issued under the seeming authority of the War Department 
 are imposing, although the authority in the particular case has been exer- 
 cised in contravention of law and in violation of the faith of a treaty. But 
 when those over whom such illegal authority has been exercised stood as 
 guardians and protectors of th-e rights of others, and have tamely submitted 
 because their intellect or their moral sense was obtuse, and their love of 
 place and emoluments of otilce was more acute, and when those whose 
 rights have been trampled upon by such usurpation could not resist be- 
 cause ihiiiy had no knowledge of it until the designed mischief was accom- 
 plished, the government, whose officers have under color of its authority 
 and in its name so abused their places and done injuries to individuals, is 
 bound to vindicate its honor, justice, and public faith, by redressing the in- 
 juries. 
 
 The written interpretations of the treaty, and the written, instructions 
 §iven to the court of commissioners by the Commissioner of Indian Alfairs 
 which were secreted from the claimants, have at length, by the authority of 
 the Congress, 'been drawn forth, piecemeal, from the recesses of the bureau 
 of Indian affairs, and published; but of the unwritten versions of the treaty 
 and unwritten instructions (now attempted to be excused under the name 
 of suggestions, as if names could alter the substance and essence of things) 
 which M^ere imposed upon the court of commissioners in the various advise- 
 ments '^ fully and freely" held from time to time with the War Depart- 
 ment, we knovv^ nothing except by the oiitcomings. 
 
 Of these -advisements imposed by th« department on the court of com- 
 missioners, the most prominent arise out of the constructions of the treaties 
 of 1817 and 1819, by which forfeitures for removals are worked. These 
 forfeitures are extended to the fee simple of the children, for the offences of 
 the heads of Indian families who owned only a life estate. In the rage 
 for forfeitures, whereby to increase the quantity of lands ceded by the 
 •Cherokees, and to decrease the payments by the Ignited States to the 
 -Cherokees, m.o regard is paid to the legislative acts of the several States to 
 -appropriate the lands reserved to the Cherokees within the borders of those 
 States, respectively., to the public domain of the Stales, and to sell it out as 
 ■such, not to the public history of the proceedings under those laws; inso- 
 much, that the Indians, instead of being confronted by evidence to fix upon 
 them a voluntary removal and abandonment of their reservations, are sub- 
 jected to forfeitures by presumption, unless they can repel the presumption 
 ijy proof of an expulsion by force of arms, A private sale by an Indian 
 head of a family, owning but an estate for life, is made to bar the fee sim- 
 ple remainder of tlie children^ notwithstanding the twelfth section of the 
 act of Congress of the 30th March, 1802, (vol. 3, p. 4G3, Bioren's edition,) 
 had prohibited any purchase, ^rant, or conveyance of land from any In- 
 dian wiihin the bounds of the United States, and declared any such pur- 
 chase void " unless made by treaty or convention entered into pursuant to 
 the constitution." 
 
 The Cherokees insist that the removals prohibited by the treaty of 1817 
 were removals from the east side of the river Mississippi, westward to the 
 Cherokee country on the Arlcansas river; that the prohibition was tempo- 
 ;rary, and ceased by the treaty of 1S19. The claimants of reservations in- 
 
38 Mis. No. a 
 
 sist that the estate in remainder in fee to tlie children could not be forfeited',, 
 sold, conveyed, or defeated, after the treaty of 1S19, by any act of the 
 owner of the lesser estate fo? life. 
 
 These questions have been raised in the War Department, decided in 
 favor of the government, without opportiniity to the Clierokee claimants to 
 be heard in defence of their rights, and imposed by the department on the 
 commissioners as dogmas, to be rules of their decisions, under the penalty 
 of dismissal from office hanging in terrorem over their heads. Against, 
 such back stairs influence exerted by the War Deparim.ent, against such 
 interpretations of the treaties, tlie Cherokee claimants do solemnly protest^ 
 and appeal to the justice and good faith of the government of the United 
 States. 
 
 The preamble to tlie treaty of ISIT explains die reason and scheme of 
 the treaty. The Cherokee nation had agreed to divide into two nations 
 the Cherokees east of the river Mississippi, and the Cherokees west of that 
 river, on the Arkansas, and to divide their lands east of the Mississippi^ 
 and their annuides, between the two parts, in proportion to the numbers 
 of those who remained east and those who had gone and who should re- 
 move west; the proportion of the lands east of the Mississippi belonging 
 to the Cherokees west and who should remove west to be ceded to the 
 United States, in exchange for lands of the United States on Arkansas.. 
 The preamble explains what was meant by removing. It speaks of the 
 part of the Cherokee nation v<^est, " including, with those now on the 
 Arkansas, those who are about to remove thither.''^ Here is a clear and 
 distinct explanation of the removal spoken of in the articles of the treaty. 
 
 The 1st and 2d articles cede to the United States two tracts of country^ 
 by defined boundaries, as part of the portion of the lands assigned to the 
 Cherokees west and who intended to remove west; the additional quantity 
 of lands to be allotted to the Cherokees v.'est and who desired to remove 
 west, and to be ceded to the United States, was to have been ascertained 
 and proportioned according to a census of the Cherokees east and west; 
 and the 3d article stipulates "^ that a census shall be taken of the whole 
 Cherokee nation during the month of June, IS IS." "-The census of those 
 on the east side of the Mississippi river" was to have been taken by a com- 
 missioner " appointed by the President of the United States, and a com- 
 missioner appointed by the Cherokees on the Arkansas river; and the- 
 census of the Cherokees on the Arkansas river and those rewoHvg there,. 
 and who at that time declare their intention of removing there, shall be 
 taken by a commissioner appointed by the President of the United States^ 
 and one appointed by the Cherokees east of the Mississippi river." In 
 this, what is meant by removing is clearty seen to be a removal from the 
 east side of the Mississippi to Arkansas. 
 
 The 4th article declares that the aanuities to the Cherokees shall be 
 divided and apportioned between the two parts of the nation "in propor- 
 tion to their numbers, agreeable to the stipulations in the third article of 
 this treaty; and the lands to be apportioned and surrendered to the United 
 States agreeably to the aforesaid enumeration, as the proportionate part, 
 agreeable to their numbers, to which those who have removed, and who 
 declare their intention to remove, have a just right, including these Avith 
 the lands ceded in the first and second articles of this treaty." Here agair* 
 is a clear explanation of what is n:ieant by removing. It is a removal fiom 
 the east side of the Mississippi to Arkansas. 
 
Mis. No. 8. 3& 
 
 Article 5 stipulates that the United States shall, for the lands ceded in 
 the first and second articles, and which they may thereafter receive as the 
 portion of that part of the Cherokee nation on the Arkansas, give as much 
 lands, acre for acre, in exchange, on the Arkansas and White rivers, "as 
 the just proportion due that part of the nation on the Arkansas, agreeable 
 to tlieir numbers." 
 
 Article G stipulates that the United States shall pay "all the poor war- 
 riors who may renwve to the western side of the Mississippi river," to each 
 a rifle, ammunition, a blanket, brass kettle, or in lieu of the kettle a beaver 
 trap, ''as a full compensation for the improvements they may leave;" 
 "and to those emigrants whose improvements add real value to their lands, 
 tlie United States agree to pay a full valuation for the same, to be ascer- 
 tained," «fcc. 
 
 Article 7 stipulates that the United States shall pay "for all improve- 
 ments which add real value to tlie lands lying within the boundaries ceded 
 by the first and second articles," to be valued as in the preceding article^ 
 " or, in lieu thereof, to give in exchange improvements of equal value, 
 which the emigrants may leave, and for which they are to receive pay;" 
 and that "all these improvements left by the emigrants within the bounds 
 of the Cherokee nation east of the Mississippi river, which add real value 
 to the lands, and for which the United States shall give a consideration, 
 and not so exchanged, shall be rented to tlie Indians by the agent, year 
 after year, for the benefit of the poor and decrepit of that part of the nation 
 east of the Mississippi river, until surrendered by the nation, or to tlie na- 
 tion;" "that the said Cherokee nation shall not be called upon for any 
 part of the consideration paid for said improvements at any future period." 
 In all these articles the meaning of removing is clearly seen to be, a 
 removal from the east side of the Mississippi river to the west, on the Ar- 
 kansas. 
 
 By article 8 it is stipulated, that to each and every head of an Indian 
 family residing on the east side of tlie Mississippi river, on the " lands 
 that are now or may hereafter be surrendered to the United States, who 
 juay wish to become citizens of the United States, the United States do 
 agree to give a reservation of six hundred and forty acres of land, in a 
 square, to include their improvements, which are to be as near the centre 
 of a square as practicable, in which they will have a life estate, with a re- 
 version in fee simple to their children, reserving to the widow her dower, 
 the register of wliose names is to be filed in the ofTice of the Cherokee 
 agent, which shall be kept open until the census is taken as stipulated in 
 tlie third article of this treaty: Provided, Tliat if any of the heads of fami- 
 lies, for whom reservations may be made, should remove therefrom, then 
 and in that case the right to revert to the United States. And provided 
 further, That the land which may be reserved under this article be de- 
 ducted from the amount which has been ceded under the first and second 
 articles of this treaty." 
 
 There is no good cause for affixing to the removals spoken of in this 
 article a sense different from the removals spoken of in all the former arti- 
 cles ; on the contrary, there are cogent reasons for giving tlieni the same 
 sense and meaning. 
 
 A removal of a family from one place necessarily implies a removal to 
 another place. That place to which the removal in this eighth article 
 alludes, is to the Indian nation west, on the Arkansas. Such are the re- 
 
40 Mis. No. 8. 
 
 movals treated of in the preceding articles; and, according to axiom Sth, 
 they shall explain the meaning of the eighth article. The uniform, steady 
 train of thought throughout the third, fourth, fifth, sixth, seventh, and 
 eighth articles, relates to the division to be made between the eastern and 
 the western Cherokees; between those of the Cherokees east of the Mis- 
 sissippi and those w^est on the Arkansas, and those to remove fro'm the 
 east side of the Mississippi to Arkansas. Such removing from the eastern 
 nation to the western, on the Arkansas, is the burden of the treaty; the 
 concern of the census; the regulator of the exchange of lands; the index 
 to the improvements which the United States were to pay for; the numera- 
 tor and denominator of the division between the eastern and v/estern Cher- 
 okees, and between the United States and the Clicrokees, east and west. 
 
 The proviso forbidding removal immediutely succeeds the declaration 
 that the register for reservations shall be kept open until the census is taken 
 according to the third article, and that census relates to and is to include 
 those who shall remove to Arkansas, with those who were already there. 
 The proviso has a direct and close connexion with removals to Arkansas, 
 and to the census to be taken of ihose who should be found thtre. The 
 proviso upon the proviso, which follows the forfeiture for removals from the 
 reservations, declares the reservations shall be deducted from the lands 
 ceded by the Cherokees to the United States by the first and second arti- 
 cles, which shows that the forfeiture for removing from reservations is con- 
 nected with and a part of the system for regulating how much land the Cher- 
 okees then at Arkansas, and who should remove there, should have for 
 their portion, and consequently how much the whole nation were to cede 
 to the United States in addition to that ceded by the first and second arti- 
 cles. Removal to Arkansas was the important subject, wherein the east- 
 ern Cherokees, the western Cherokees, and the United States were sever- 
 ally interested. 
 
 There is a uniform, steady train of thought in tliis 8th article, connect- 
 ing the census of the third article, the cession to the United States of lands 
 east of the Mississippi, to be apportioned by that census according to the 
 4th article, and to be paid for by the United States by lands on the Ar- 
 kansas in exchange, acre for acre, according to the 5th article, and a deduc- 
 tion of the reservations, according to this 8th article, from the quantity 
 chargeable to the United States of lands east of the Mississippi, to be paid 
 for in lands on the Arkansas. The removal of Indian families so treated 
 of in the 8th article is a mixed mode, a concrete term of expression, 
 uniting in the mind several ideas into one combination of thought, in- 
 cluding the census of the Cherokees on the Arkansas, and those who 
 shall remove there, the time of removal, so as to be found at Arkansas 
 when the census shall be taken, the apportionment of lands east of the 
 Mississippi, the lands to be given in exchange on Arkansas, and the de- 
 ductions therefrom of the quantity of the reservations not to be charged to 
 the United States, and not to be paid for as any part of the cession to the 
 United States. All these several and distinct ideas of time, place, and cir- 
 cumstance, are blended and combined in the manner of the giving of res- 
 ervations and the proviso, and the proviso upon the proviso. Removal of 
 a family is, in itself, a complex idea, a mixed mode, including an aban- 
 doning of a habitation at one place, the njaking of a habitation at another 
 place, with the time between the removal from the one place to the setting 
 down at the place removed to. The place to be abandoned and removed 
 
Mis. No. 8. 41 
 
 from is the Cherokee country, and land east of the Mississippi river; the 
 place to be removed to is the Cherokee nation on the Arkansas river; the 
 time of such removal is after rea;istering for reservations and before the 
 census should be taken of the Cherokees in the country on the Arkansas 
 river. To introduce any other place and any other time as being appli- 
 cable to the removals interdicted, would break the uniform, steady train of 
 thought, and bring in unreasonable restrictions. 
 
 If, after families were registered on the east side of the Mississippi for 
 reservations, the same families should remove to the western nation of 
 Cherokees on the Arkansas before the census was taken and completed, 
 and tliereby become enumerated with the western Cherok'ees, the ratio of 
 the apportionment of the lands east of the Mississippi, between the Chero- 
 kees east and the Cherokees west, as well as the apportionment of the an- 
 nuity agreed to be made by the 4tli article, would have been deranged; 
 and the cession of the lands to the United States as the portion of the 
 western Cherokees, and the quantity of lands to be given by the United 
 States on Arkansas river, in exchange therefor, would have been disturbed 
 and disarranged. 
 
 Such registration for reservations, deducted from the lands ceded by the 
 1st and 2d articles, diminished the quantity left, which the United States 
 were to pay for, and the removals of those same families to Arkansas be- 
 fore the census was there completed would have swelled the numbers of 
 the Cherokees on Arkansas in the census there taken; whereby the por- 
 tion of the western Cherokees on Arkansas would have been increased, 
 and the portion of the Cherokee nation east of the Mississippi would have 
 been decreased. Moreover, those registering for reservations, and there- 
 after removing west to Arkansas before the census of the Cherokees was 
 there completed, if permitted, notwithstanding such removal, to retain 
 their reservations, would have received not only those reservations, but 
 their common interest in the public domain of the western nation of 
 Cherokees, increased by their removal to Arkansas. The injustice to the 
 eastern Cherokees would have been increased by such removals to Arkan- 
 sas, after registration for reservations, and before the census, if such 
 families so removing had been permitted to retain their reservations; first, 
 because the reservations were to be deducted out of the quantity ceded by 
 the 1st and 2d articles of the treaty of 1817, and the eastern Cherokees 
 would have been bound to make a further cession to the United States, 
 conseqnent u}5on the increased number of the Cherokees on Arkansas 
 accrued upon such removals before the census. 
 
 It is worthy of notice that the treaty of 1817 was concluded and signed 
 on the 8t,h of July, 1817, and ratified 26th of December, 1817, affording 
 time and opportunity to file their names with the agent of the United 
 States, as electing to take reservations, and thereafter to remove to Arkan- 
 sas before the census appointed for the month of June, 1818, which time 
 for the census was kept open until the treaty of 27th of February, 1819, 
 and then finally dispensed with, and the time to take reservations pro- 
 longed until the end of the year 1819 by the 7th article of that treaty. 
 
 To prohibit removals from the east side of the Mississippi to Arkansas 
 after registration for reservations, and before the apportionment of the 
 lands and annuities was finally adjusted, and to inflict the penalty of for- 
 feiture of the right upon such premature removals, was reasonable and 
 proper, so that such persons so registering for reservations should not re- 
 
42 Mis. No. 8. 
 
 ceive double portions, one on the east of the Mississippi and another in the 
 common property of the lands on Arkansas, and to the end that the for- 
 feited reservations should not in tlie final adjustment be deducted from the 
 quantity ceded to the United States by articles 1 and 2 of the treaty of 
 1S17. 
 
 The removal of Indian families from one part of the Cherokee country, 
 on the east side of the Mississippi, to another part of the same eastern ter- 
 ritory, from improvements hi the territory east of the Mississippi to other 
 lands and improvements in the eastern country, before the census, would 
 not disturb nor derange the contemplated apportionment accordiiig to the 
 ratio to be ascerlained by the census of the Cherokees east and tlic census of 
 the Cherokees west. Those who registered for reservations, and who re- 
 mained in the country east until after the final apportionment and adjust- 
 ment, would not have increased the census of the Cherokees on Arkan- 
 sas — would not have received double portions. No matter how they 
 removed from one place to another place in the Cherokee country after 
 registration for reservations^ they were yet eastern Cherokees and not 
 w^estern Cherokees. 
 
 It was a removal from the east side of the Mississippi after legistrntion 
 for reservations to the west on Arkansas, before the time appointed for the 
 census; before the apportionment and adjustment between the three par- 
 ties, the United States, the Cherokees east, and the Cherokees west, 
 "vvhich tended to derange the ratio of apportionment and adjustment of the 
 interests of the three several parties. That was the manner of rem.oval, 
 as to time, place, and circumstance, which was within the reason of the 
 forfeiture. Such is the meaning of removing, as explained by the several 
 articles of the treaty, and by the sense and meaning of the treaty, taking 
 all the parts together as one whole. 
 
 Such removal before the census, or before the final adjustment substi- 
 tuted for it, wdiich forfeited the right to the reservation, and which forfeit- 
 ure thereby became known before the final adjustment, carried along with 
 it these consequences: the forfeited reservation would not be deducted 
 from the amount ceded mider the 1st and 2d articles of this treaty, because 
 the United States acquired the right to such reservations so forfeited. 
 The United States would have given for such forfeited reservations so re- 
 verted to the United States, lands on ^Arkansas in exchange, acre for acre, 
 according to article 5, and must have paid for the improvements thereon, 
 according to the rules prescribed in the 6th and Tth articles. 
 
 By this construction all the parts of the treaty are congruous, the one 
 with another; and the construction accords with axioms 4, 8, and 10, be- 
 fore cited. 
 
 By this understanding of the treaty, the United States would acquire 
 neither lands nor improvements, by forfeiture of reservations, without pay- 
 ing an equivalent for the improvements and for the lands, and the Indians 
 so removing to Arkansas would get paid the value of their improvements, 
 in money, under the sixth or seventh article, according to the facts, and 
 have their interests in the public domain of lands on the Arkansas and 
 White rivers in fee simple. By this construction all questions of forfeiture 
 for removal would have been matters to be adjusted speedily, whilst the 
 transactions were fresh in mind, and as belonging to, and a part of, the ad- 
 justment of the quantity of lands to be ceded to the United States in addi- 
 tion to the territory ceded by the first and second articles, and of the 
 
Mis. No. 8. 43 
 
 quantity to be ceded by the United States to the western Cherokees, in 
 exchange, acre for acre. No stale questions of forfeiture would remain to 
 be litigated after the lapse of twenty or thirty years, Avhen Avitnesses were 
 dispeiscd or dead, and when the memory of tlic living, as to past transac- 
 tions of such antiquity, had faded. 
 
 By the contrary construction of making the ])rohibition unlimited as to 
 time and place of the removal, the United Slates would acquire, by stale 
 questions of forfeiture raised after the lands ceded to tlie United States, east 
 of the Mississippi, and the lands cede(j in exchange therefor by the Uuited 
 States on the Arkansas and White rivers, iiad been finally adjusted, after 
 tlie iujprovements abandoned to the United Slates had been ascertained 
 and paid for under the sixth and seventh articles of tbe treaty of 181T, 
 aiid the second article of the treaty of 1819; lands and improvements for 
 which they have never given any thing either in land or money; lands 
 and improvements which were deducted out of the lands ceded to the 
 United States by the treaties of 1817 and 1819, and out of tlie correlative 
 cession due in exchange by the United States of lands on Arkansas. 
 
 By such constYUction the meaning of the words used in the treaty, " re- 
 move," " removing," " removed," " to remove," as explained in various 
 parts of the treaty, are wrested from that signification to a ditFerent one, 
 contrary to the reason of the treaty, and contrary to the rules of construc- 
 tion, 2, 4; 8, and 10, before cited. 
 
 By such construction the Indian families who, by the terms of the trea- 
 ties, became citizens of the United States, and entitled to the protection of 
 the constitution and laws of the United States, and of the constitution and 
 laws of the States wherein they lived from the lime of the treaties of 1817 
 and 1819, until they removed by invitation of the treaties of 1828 and 
 1835-'36, are during all that time to be considered as fixtures to the par- 
 ticular tract of land reserved; as villeins regardant; as owners of the free- 
 hold estate for life in the soil, wilii remainder in fee to their children. 
 They are denied the power lo occupy their estates by tenants, as other citi- 
 zens may do; they are denied the protection of the rules of evidence estab- 
 lished by the laws of the States in which tlie lands are situate, to guard 
 against frauds and perjuries in relation to sales and agreements respecting 
 lands; are denied those privileges and immunities which belong to the 
 other citizens of the United States in general, as to the mode of trial of 
 alleged forfeitures; they are, by such constructions of the treaties of 1817 
 and 1819, put under restrictions and inhibitions, tcitally inconsistent with 
 the powers and declarations of tlie federal constitution. A construction 
 which conduces to such absurd consequences should be rejected, according 
 to the rules 2 and 7. 
 
 The treaty of 1819 recites that the census provided for by the treaty of 
 Sth July, 1817, had not been taken; and in place of the census, and to the 
 end that a final adjustment might be made without further delay, the Cher- 
 okees offered and the United States accepted the cessi(in " of a tract of 
 country at least as extensive as that which they are probably entitled to 
 under its ])rovisions." 
 
 By article 1st the Cherokees ceded to the United States a tract of country 
 therein described; and in said article it was " understood and agreed, that 
 the lands hereby ceded by the Cherokee nation are in full satisfaction of 
 all claims which the United States have on them on account of the cession 
 of a part of their nation who have or may heicoflcr emigrate to Arkansas; 
 
44 Mis. No. 8. 
 
 and this treaty is a final adjustment of that of 8th of July, eighteen hun- 
 dred and seventeen." 
 
 After this, it seems totally inconsistent with good faith, and the stipula- 
 tions of this article of the treaty of 181.9, for the United States to resort to 
 the treaty of 1817 to work forfeitures for removal from the reservations 
 under that treaty. How can this treaty be a final and full satisfaction and 
 adjustment of that of 1817, if the United States can yet claim the several 
 and respective tracts of 640 acres each, by forfeitures and reversions for 
 non-compliance with the terms of the treaty of 1817? 
 
 If an individual, on his private account, were to set up claims in a court 
 of justice against his own solenni deed of release and acknowledgment of 
 final adjustment and satisfaction, and at the end of twenty or thirty years 
 after the date of the deeds, he would be turned out of court; and he, and 
 his special attorney who advised such suits, would be looked upon as shame- 
 less knaves, to be shunned by honest men. 
 
 Immediately after the ratification of the treaty of 27th February, 1819, 
 all the reservations then registered under the treaty of 1817, and not then 
 forfeited by removal to Arkansas, became absolute and unconditional es- 
 tates, each head of such Indian family holding an estate for his life, the child 
 or children then in being having a vested remainder in fee, for himself or 
 herself or selves, and for such other child or children as should be born of 
 the marriage, with the right of the wife to be endowed. 
 
 This was a reasonable and humane provision, out of the common do- 
 main of the Cherokees, for such Indian families as desired to become citi- 
 zens of the United States, and thereby to separate from the Cherokee 
 nations east and west, It conceded to them (heir own houses and im- 
 provements, the fruits of their own care and labor. 
 
 Article 2d of the treaty of 1819 gives reservations of 640 acres '^ to 
 each head of any Indian family residing within the ceded territory^ those 
 enrolled for Arkansas excepted, who choose to become citizens of the 
 United States in the manner stipulated in said treaty," (of 1817,) and in 
 that same article the United States agreed to pay for all improvenjents 
 abc^ndoned, and which were on the land lying within the country ceded 
 by the Cherokees, which add real value to the land, according to the treaty 
 of 8ih July, 1817.' 
 
 As to tbicse improvements within the ceded territory abandoned by re- 
 moval to Arkansas, and so falling to the United States, the reference to the 
 treaty of 1817 shows that they were to be paid for at the time of removal 
 from them. 
 
 The 7th article of the treaty of 1819 gave the Cherokees " who resided 
 on the lands ceded by this treaty time to cultivate their crop next summer, 
 (1819;) and for those who do not choose to take reservations, to remove." 
 
 By this treaty the reservations were to be taken within the line limited 
 by the seventh article. As there was no census to be taken, the treaty of 
 1819 having adjusted the division between the eastern and western Chero- 
 kees, at the rate of one third part to the latter and two-thirds to the former, 
 and as the United States accepted an additional cession in full of all claims, 
 the subject of removal from the reservations had lost its former importance 
 under the treaty of 1817. 
 
 The first, second, and seventh articles of the treaty of 1819, taken to- 
 gether, show that the cession to the United States was by defined bound- 
 aries j the reservations to be taken under this treaty were confined within 
 
Mis. No. 8. 45 
 
 the ceded territory; the removals were all to be made in the year 1819 by 
 the seventh article. All those who desired to remain, take reservations^ 
 and become citizens of the United States, were to do so within that year. 
 All the reservations under the treaty of 1819; all the improvements aban- 
 doned and to be paid for by the United States, as well those belonging 
 to the families who did nor register for reservations as those who did, and 
 thereafter thought fit to remove to Arkansas, were to be ascertained and 
 determined by the payments to be made by the United States for the im- 
 provements which added real value to the land abandoned within the 
 ceded territory. The seventh article of the treaty of 1819 contained a 
 limitation as to reservations and removals, which in the course of the year 
 1819 settled and determined all. The "manner" alluded to in the sec- 
 ond article of the treaty of 1819, by reference to the treaty of 1817, gave 
 a life estate to the head of the Indian family, the remainder in fee to the 
 children, with dower to the widow. 
 
 By the terms of the treaty of 1819, and final adjustment and satisfac- 
 tion therein mentioned, by which the census was also abolished, all the 
 reservations, as well those taken under the treaty of 1817 as those taken: 
 under the treaty of 1819, and not abandoned to the use of the United 
 States before the first day of January, 1820, so as to receive payment of 
 the valuation of the improvements so abandoned, became absolute and un- 
 conditional estates for life to the head of the Indian family, with remain- 
 der in fee to the children, and dower to the widow. 
 
 The whole subject of reservations and removals, and forfeitures of reser- 
 vations for removal, together with the improvements abandoned to the 
 United States, for which payment was to be made according to the second 
 articles of the treaty of 1819, and sixth and seventh articles of the treaty of 
 1817, was fixed and closed by the close of the year 1819. On the 1st day 
 of January, 1820, the United States had notice of all reservations and im- 
 provements abandoned to the United States under the treaties of 1817 and 
 1819, and of the improvements for which the United States were bound to 
 pay, according to the terms prescribed in the sixth and seventh articles of 
 the treaty of 1817, and second article of the treaty of 1819. 
 
 By the treaties, all improvements were treated as private property, and 
 all that were abandoned to the United States by removal to Arkansas, 
 whether within or Avithout the ceded territory, as well on reservations taken 
 and thereafter abandoned to the United States by removal, as improvements 
 not on reservations, were to be paid f"»r by the United States. The poor 
 warriors, whose improvements added no real value to the lands, were com- 
 pensated in specific commodities. For the improvements adding real value 
 to the land not cedcf , belonging to those who removed to Arkansas, com- 
 pensation in money was due by the sixth article of the treaty of 1817; and 
 for like improvements within the ceded territory, conipensation was due 
 by the terras of the seventh article of the treaty of 1817; and the treaty of 
 1819 adopted the same rules as to improvements by reference to the treaty 
 of 1817. For the lands ceded, the United States gave lands in exchange on 
 xlrkansas; and f^r all improvements, were to make compensation in money, 
 or other improvements. To get lands by forfeiture, and the improvements 
 thereon, for which nothing has been given by the United States, is totally 
 inconsistent with the true sense and meaning of the treaty. 
 
 By the registers kept by the agent of the United States, and now depos- 
 ited in the Department of War^ it appears that one hundred and fifty-six 
 
46 Mis No. 8. 
 
 families took reservations under the treaty of 1S17, and that one hundred 
 and fifty five families took reservations under the treaty of 1819 — in all, 
 three hundred famihes — making one hundred and ninety-nine thousand 
 and forty acres deducted out of the quantity ceded to the United States 
 by tlie treaties of 1817 and 1810, for which the United States did not give 
 lands in exchange on Arkansas, nor pay anything in money, either for 
 those 199,040 acres, or f")r the improvements thereon. These 311 reserva- 
 tions were, in truth and fact, donations by the Cherokee nation out of their 
 public domain, which the United States did guaranty to the Cherokees 
 forever by the treaties of Holston and TeUico. These donations to the 
 311 Indian famihes, so separating from the Cherokee nation and becom- 
 ing citizens of the United States, were assented to by the United States. 
 By the conjoined and mutual acts of the two contracting powers, these 311 
 Indian families respectively acquired a complete title in fee simple to their 
 respective tracts of 640 acres of land, including their improvements, with 
 an estate for life to the head of the family, remainder in fee to the children 
 then in life and being, in trust for themselves and for such other children 
 as should be born of their parents, with dower to the widow. 
 
 If, after registering for a reservation, any head of these families, before the 
 1st day of January, 1820, had abandoned his reservation and removed his 
 family to Arkansas, it would have been the duty of the agent of the United 
 States to have noted the fact; and in such case that reservation would not 
 have been deducted from the quantity ceded to the United States; the im- 
 provements thereon must have been paid for by the United States, accord- 
 ing to the sixth or seventh article of the treaty of 1817, as the case re- 
 quired; and the United States must have given for such tract of laud so 
 reverting to the United States, land in exchange, acre for acre, on Arkan- 
 sas and White rivers. 
 
 After the treaty of February 7, 1819, and by virtue thereof, those three 
 hundred and eleven reservations so taken and not abandoned to the United 
 States, not paid for by the United States, neither by lands in exchange 
 acre for acre, nor in money for the improvements, became absolute, uncon- 
 ditional estates in fee simple to the respective families, divested of the con- 
 dition of forfeiture and reversion to the United States for removal. 
 
 It appears from the correspondence between Governor McMinn and J. C. 
 Calhoun, then Secretary of War, that as early as March, 1818, the question 
 had arisen among the Indians whether, after taking reservations, the Indi- 
 ans could surrender them and remove to Arkansas, and have a common 
 right with their brethren there; and that it was determined by Governor 
 McMinn and the Secretary of War, that a Cherokee might take a reserva- 
 tion and thereafter surrender it, and would thereby have a common right 
 with his brethren on the Arkansas, but if he took a reservation and retained 
 it, the reservation of six hundred and forty acres would be a full compen- 
 sation for all his claims. (See Mr. Calhoun's letter of March 16, 1818, in 
 answer to Governor McMinn's of the 12th and 13th of that month — Ameri- 
 can State Papers, Indian affairs, vol. ii, p. 479.) In the same book, (page 
 191,) it will be seen that after the treaty of I8i9, surveyors were appointed 
 by the Secretary of War, not only to survey and mark the boundaries of the 
 several tracts of country ceded to the United States by the treaties of 1S17 
 and 1819, but likewise to survey the reservations. 
 
 This question whether the condition annexed to reservations was of per- 
 petual residence, or only temporary, came directly before the supreme court 
 
Mis. No. 8. 47 
 
 of North Carolina, in December, 1S34,. in the case of Belk vs. Love. (1 
 Devereaux and Battle's Reports, 65 to 75.) The question arose upon a 
 reservation of Yonah, a Cherokee, specially named in the treaty of 1819, 
 and taken by him under that treaty, and by him sold and conveyed to the 
 plaintiff in ejectment by deed of iS'ovember 1, 1S20. Tlie case was deci- 
 ded by the supreme court after argument by Mr. Pearon for the defendant 
 in the ejectment, and by Mr. Badger for the plaintiff in ejectment. Gaston, 
 judge, delivered the opinion of the court; and after commenting upon the 
 treaties of ISlTand 1819, as to the granting of reservations, he said: ''The 
 word reservation is used not in a technical, but in a popular sense, mean- 
 ing a part taken out of the whole and applied differently from the residue." 
 
 " It has also been urged that the reservations made are accompanied by 
 a condition of perpetual residence. We think not. A declaration of intent 
 to reside permanently on the tract is made a condition precedent to the al- 
 lotment of such a tract; bur that condition once performed, and the allot- 
 ment made, the estate is in law absolute." 
 
 An inquest of ofhce was indispensably necessary to try and find the fact 
 whereby the lands were to accrue to the United States, or to the State, (for 
 whose use the Indian title was extinguished,) by forfeiture for removal. 
 '' These inquests of office were devised by law as an authentic means to 
 give tiie King his right by solemn matter of record; without which he, in 
 general, can neither take nor part from anything. For it is part of the lil)er- 
 ties of England, and greatly for the safety of the subject, that the King 
 may not enter upon or seize any man's possessions upon bare surmises, 
 without the intervention of a jury." 'I'hese inquests of office and findings 
 are not conclusive, but may be avoided by the subject, by his petition of right, 
 which discloses new facts, or by his mo/islrans de droit, which relies upon 
 the facts as found, or by traverse, or denial of the matter of iaet itself, and 
 putting it in a course of trial by the law process of the Court of Chancery. 
 (Black. Comm., book iii, chap. 17, pp. 258, 259, 2(30; book iv, chap. 23, 
 p. 301; chap. 33, p. 424. Magna Charta, chap. 29, Second Institute, p. 45.) 
 
 It is within the power of the government of the United States, by treaty, 
 to make citizens of the United States. The inhabitants of Louisiana and 
 of Florida were made citizens of the United States by treaties. Under the 
 treatiesof 1817 and 1819, those Cherokees who declared their wish to become 
 citizens of the United States by filing their names in the office of the Chero- 
 kee agent of the United States, (according to those treaties,) and who took 
 reservations, became citizens of the United States, and entitled to the pro- 
 tection, rights, privileges and immunities secured by the constitution of 
 the United States, and particularly to the protection of the fifth article of the 
 amendments thereto, which declares " that no person shall be deprived of 
 life, liberty or property without due process of law; nor shall private pro- 
 perty be taken for public use without just compensation." 
 
 \^^ tire registration for reservations, the heads ol Indian families respect- 
 ively had vested rights in their reservations; each head of a family to an es- 
 tate tor his own life, with remainder in fee immediately vested in the child 
 or children, in life, and being at the time v/hen the particular estate for life 
 vested in the parent. 
 
 Whatever the powers of governments may be, by legislative acts, or by 
 treaties having the force of a supreme law, to dispose of private rights to 
 subserve the ends of public policy, their acts ought never to be so con- 
 strued as to subvert the rights of property, unless the intention so to do be 
 
48 Mis. No. 8. 
 
 expressed in such terms as to admit of no doubt, and to show a clear de- 
 sign to effect the object. No silent, implied, and constructive forfeitures, 
 or repeals, ought ever to be so understood as to divest a vested right. 
 Such is the general principle expressed and adjudged by the Supreme 
 Court of the tJnited States in the case of Rutherford vs. Greene's heirs. 
 (2 Wheat., 203.) 
 
 The attempt now is, by implications and constructions, and without due 
 process of law, to work forfeitures for removals, con'rary to the principle so 
 stated by the Supreme Court of the United States, and to the general 
 rules 2, 4, 6, 8, and 10, before cited, and to the constitution. 
 
 Some families were driven off by force, or fear of harm, by the purcha- 
 sers under State sales, against which intruders the United States failed to 
 protect, as they undertook to do by the 5th article of the treaty of 1819; 
 some were forced off by purchasers under sates by the agents of the 
 United States; some sold to the State of North Carolina; some sold to the 
 United States under the law of Congress appropriating 1^50,000, to be ap- 
 plied in purchasing reservations in the State of Georgia; and some who 
 were forcibly dispossessed by intruders purchasing under State laws re- 
 covered their possessions by legal process; others, in attempting to recover 
 their possessions, were unsuccessful for want of white men as witnesses, 
 the law of the State not allowing Indians to testify against white men; and 
 some removed to Arkansas under the inducement of payment for their 
 reservations, held out by the United States in the treaty of 1828; and some, 
 to save themselves from litigation, purchased at the sales made by the 
 States. 
 
 These reservations were considered valid titles by the United States and 
 by the several States, when the Indians were solicited to sell or relinquish, 
 and as such they were bought by the United States and bj'" the States, so 
 far as the Indians could be induced to sell; they were considered valid 
 titles in the treaty of New Echota, when by the 1st supplemental article 
 they were all "relinquished" for a compensation promised by the 3d 
 supplemental article, to be adjudged by the commissioners to be appomted 
 under the 17th article. 
 
 The State laws, and the documents in the War Department, and the 
 public documents printed by order of the Congress, attest the great efforts, 
 by State laws. State sales, and individual force and intimidations, to drive 
 the Indians from their possessions and reservations. But these hav'e been 
 forgotten when, under the treaty of New Echota, the heads of the Indian 
 families, and their children, have appeared before the commissioners to 
 claim the compensation promised for the general relinquishment and abro- 
 gation insisted on by the President of the United States, and inserted in 
 the 1st supplemental article of the treaty of New Echota. The claimants 
 have been obstructed by instructions from the War Department, interpre- 
 tations and opinions of Attorneys General, made up for the executive offi- 
 cers of the United States, without hearing the other party, constituting a 
 black catalogue of premeditated wrongs to the Clierokees. 
 
 Before the treaty, and in the treaty, these reservations were considered 
 as valid subsisting rights and interests, to be relinquished and compen- 
 sated in money. After the treaty, when all these reservations are relin- 
 quished and declared void in consideration of the equivalent promised in 
 money, the claims by forfeitures for removal are set up under the treaty 
 of 1817, in bold defiance of the "full satisfaction of all claims," and 
 
Mis. No. 8. . 49 
 
 '^^ final "adjustment" of the treaty of 1817, which is expressed in the 1st 
 article of the treaty of 1819. 
 
 Daring all the time from the treaty of 1819 to the treaty of 1835, and 
 thenceforward until the claims for money in lieu of reservations were pre- 
 sented for adjudication, these claims of forfeitures by removal lay dor- 
 mant, unasserted by the States, or by the United States. No inquest of 
 office, no proceeding by office found, either State or federal, has been held 
 to inquire into the fact which was to divest the rightr and title of the In- 
 dian, and to vest it in the government by the forfeiture. 
 
 A release of the right was sought by the United States, and accepted by 
 the 1st article of the supplemental treaty; a compensation in money for the 
 right so "^ relinquished" was promised in the 3d supplemental article; and 
 now, after ratification, against the acknowledgment of right contained in 
 the release sought and accepted, against the compensation engaged for the 
 right "relinquished," for the release accepted, a title by forfeiture antece- 
 dent to the treaty is set up ! 
 
 Wliat a difference of behaviour between those agents of the United 
 States v/ho sought, signed, and concluded the treaty of New Echota, and 
 those who are intrusted with the duty of fulfilling the treaty after its ratifi- 
 cation! 
 
 All the claims to reservations had been filed with the agent of the United 
 States, under the treaties of 1817 and 1819, registered by the agent as far 
 back as the year 1819, and this register had been filed in the Department 
 of War soon after. The claims to reservations were matters of public 
 record, in the keeping of the Department of ¥/ar, before the treaty of New 
 Echota. A release of those claims was asked and accepted by the United 
 States in the treaty of New Echota. Any claim of the United States to 
 the lands by forfeiture, founded on the fact of removal from the reserva- 
 tions, had accrued before the treaty of Nev/ Echota; had preceded the re- 
 lease asked and accepted by the United States; had preceded the promise 
 of compensation for the release. The United States in good faith cannot 
 now set up title by forfeiture in bar of the compensation for the release of 
 the claims to the reservations: the treaty is an answer to any such claims 
 of pre-existing forfeitures. The agents of the United States who have set 
 up such stale claims of forfeiture for removal in derogation of the treaty of 
 New Echota, have sullied the honor of the United States, the faith of 
 the treaty, and done palpable wrong to the claimants of compensation for 
 their reserv^ations so registered and so relinquished by the treaty for prom- 
 ise of payment. 
 
 The treaties are not written in the language of the Cherokees, but 
 wholly in the language of the people of the United States. The Indians 
 who made the treaties of 1817 and 1819 acted by interpreters, two in num- 
 ber, one attesting by his mark. Of the warriors, chiefs, and headmen of the 
 Indians, thirty-seven could not write, but signed by their mark: eight only 
 could write their names. These illiterate Indians signed the treaty as ex- 
 plained by interpreters, and as written by the agents of the United States. 
 Under such circumstances, the United States, the guardians of these In- 
 dians, cannot take advantage of dubious expressions in one particular part, 
 and therefrom o-ctract a meaning from a detached part different from the 
 tenor of the other parts, wherelrom to raise tbrfeitures of the lands and im- 
 provements, which the United States did not buy nor pay for, but were 
 exceptions out of the lands ceded to the United States. To claim for- 
 ■-,-..4 - ..• .■ , . 
 
50 Mis. No. 8. . 
 
 feitures thereof by far-fetched impKcations, ambiguous expressionsy by 
 sticking in the back, and by the abstruse doctrines of contingent remain- 
 ders, against the reason and spirit of the treaty, is forbidden by the 2d, 
 4th, 5th, 6th, Sth, and 9th general axioms before cited. 
 
 The extremity to which the claims to forfeitures have been pushed by 
 the agents of the United States, and the tenure by which they are claimed, 
 deserve some notice. 
 
 By the treaty of -Holston of 1791, (1 vol. Laws U. S., 327,) " the Uni- 
 ted States solemnly guaranty to the Cherokee nation all their lands not 
 hereby ceded." And by the treaty of Tellico, in the year 1798, (vol. 1, 
 p. 333,) "in consideration of the relinquishment and cession hereby made, 
 the United States" engaged to deliver certain goods, and to pay an annu- 
 ity to the Cherokees, "and will continue' the guarantee of the remainder of 
 their country forever, as made and contained in former treaties." 
 
 By these treaties the Cherokees are acknowledged as a nation capable of 
 the relations of peace and war^ having their own government and laws^ 
 their own country defined specially by the treaties, their own pubhc do- 
 main, the right to hold, use, and occupy their lands forever, subject to the 
 ultimate right of the United States to buy and obtain a cession of their 
 lands, to the exclusion of all foreign nations. States, or people. Such is the 
 true state of the relations between the United States and the Cherokees; 
 so it has been proclaimed to foreign nations by the United States: so is 
 the decision of the Supreme Court of the United States. — (5 Peters, pp. 
 17, 55; the Cherokee Nation vs. The State of Georgia.) The Chero- 
 kees " are acknowledged to have an unquestionable right to the lands 
 they occupy until that right shall be extinguished by a voluntary cession 
 to our government." 
 
 Such being the present right of the Cherokees, and the remote ultimate 
 right of the United States, in the lands which were the subjects of the 
 treaty of 1817, the eighth article must be understood as the words of both 
 parties to the treaty; as containing an agreement by the Cherokees to give 
 the reservations in "the lands that are now, or may hereafter be, surren- 
 dered to the United States," and as containing an assent on the part of 
 the United States so as to give a reservation of 640 acres to each and every 
 head of an Indian family Avho may wish to become citizens of the United 
 States. 
 
 The United States did not buy nor pay for those reservations; they were 
 deducted out of the quantity ceded, out of the quantity paid for by the 
 United States. Until the United States acquired the Indian title, they could 
 not give nor grant the lands to citizens of the United States; neither could the 
 Cherokees, without the assent of the United States, give or grant the lands 
 in fee simple to citizens of the United States. Independently of the general 
 policy of the United States, the act of 30th March, 1802, (chap. 273, sec. 
 12, vol. 3, p. 463, of Bioren's edition,) positively forbade it unless by treaty 
 or convention. The Sth article required the assent of the Indian nation, 
 and of the United States, to perfect the titles therein granted. The Cher- 
 okee nation did agree to give, and the United States did agree to give, the 
 reservations upon the terms expressed in that article. They are the gifts 
 mutually agreed and consented to by the two contracting parties. To 
 found a construction, or a deduction, upon the words " the United States 
 do agree to give," solely and apart from all the other words of that article 
 and of all the other articles, and without regard to the respective rights of 
 the two contracting parties in the subject matter^ would violate the Sth rule 
 
Mis. No. 8. ' ••; 51 
 
 of construction before cited, and also this other rule, ^^ we ought always 
 to give to expressions the sense most suitable to the subject, or to the 
 matter to which they relate." — (Vattel, p. 232, sec. 280.) 
 
 The subject of the eighth article was a country owned by the Chero- 
 kees by a right of occupancy forever — the United States having the sole 
 right to acquire the Indian title. Of that country the United States were 
 to acquire a part by the treaty of 1817, having the l^nown desire to acquire 
 the surrender of the whole at some future period in pursuance of an ex- 
 press obligation to the State of Georgia, and implied obligations to the 
 other States within whose borders the Cherokee countrj'' lay. The inten- 
 tion to obtain a further surrender appears in the eighth article. That the 
 United Slates and the Cherokees sliould unite in granting estates in fee 
 simple to persons desiring to separate from the Indian nation and become 
 citizens of the United States, was indispensably necessary to a perfect title 
 in fee to such private persons. That the United States should agree that 
 the reservations of 640 acres to each Indian family who were to become 
 citizens of the United States should be taken in the Cherokee country, 
 within the bounds either then surrendered, or thereafter to be surrendered 
 to the United States, was easy, and in furtherance of their policy; seeing 
 that all such reservations, when deducted from the quantity within the 
 boundaries defined in articles 1 and 2, did not decrease the quantity to be 
 surrendered by other boundaries and concessions, but, in so far as the res- 
 ervations were taken outside of the boundaries defined in articles 1 and 2, 
 if deducted from the quantity within those defined limits, would increase 
 the quantity to be surrendered to the United States within other boundaries 
 thereafter to be assigned, to make up the just proportion for the Cherokees 
 on the Arkansas, and those removing there, and who should declare their 
 intention to remove thither, to be determined by the census to be taken. 
 
 That the Cherokees east should have hesitated to assent to that propo- 
 sition would not have been surprising, seeing that it operated to decrease 
 the quantity which would remain to them after the just proportion to the 
 Cherokees then on Arkansas, and to remove there, was assigned and sur- 
 rendered to the United States, to be paid for by lands in exchange, acre for 
 acre, to be ceded by the United States, on Arkansas and Wliite rivers, to 
 the western Cherokees. But the whole nation of Cherokees did agree to 
 the terms, as making only a reasonable provision for those of their nation 
 who desired to become citizens of the United States, subject to their laws. 
 It was very far short of their proportion of the lands belonging to the Cher- 
 okees. Taking the average number of persons in each family at three, 
 each family would have been entitled to not less than 2,600 acres; and 
 taking the average of four persons to a family, each Indian family would 
 have been entided to not less than 3,500 acres, according to tlie quantity 
 of lands owned, compared with the best estimate of the whole number of 
 Cherokees east and west. By taking reservations and becoming citizens 
 of the United States, those famihes gave up their portions of the annuities, 
 and of the residue of the lands. Words cannot be more explicit to de- 
 clare the right of the Cherokees residing east of the Mississippi to take res- 
 ervations within or without the boundaries then defined in the first and 
 second articles of the treaty of 181T; and the greater the number of the 
 reservations taken outside of the territory ceded, the greater the quantity 
 to be ceded (in addition to the tracts defined by articles one and two) to 
 supply the deductions for reservations, and make up the portion for the 
 western Cherokees, according to articles 3, 4, and 5. The policy of the 
 
"52 ;■■ •/ ■ ' : . Mis. No. 8.' -^' ■ ■ ■ ■ 
 
 United States was best subserved by permitting reservations to be taken 
 outside of the boundaries of the two tracts of country specially ceded by 
 articles 1 and 2, inasmuch as the deduction of such reservations from 
 those specific boundaries did but lay the foundation for the additional 
 quantity to be ceded as contemplated in articles three, four, and five; and 
 all the reservations outside of the specified boundaries became parts of 
 the United States, the inhabitants thereof being converted into citizens of 
 the United States, subject to the laws and jurisdiction of the States within 
 whose limits those reservations were respectively situated. Moreover, the 
 dotting of the Cherokee country with reservations and inhabitants, de- 
 tached from the Indian nation and Indian jurisdiction, and subjected to 
 the jurisdiction of the United States, necessarily incommoded the Indian 
 nation, embarrassed the execution of the Indian laws and government, and 
 thereby excited an inclination in the Cherokees to remove to Arkansas, 
 where they could enjoy in peace and quiet their own government, laws, 
 and usages. The policy of the United States in agreeing, and in indu- 
 cing the Indians to agree, that the reservations might be taken outside of 
 the boundaries of the two tracts ceded by articles one and two, and that 
 the families thereon should thereby become citizens of the United States, 
 was a masterpiece in the negotiation, which had a powerful effect upon the 
 Cherokee nation, inducing their council very soon after to offer the cession 
 to the United States of a much larger additional territory than that which 
 they would have acquired by the terms of the treaty of 1817, and so to 
 adjust the matter by the treaty of 1819 as to confine reservations there- 
 after within the limits of the ceded territory. 
 
 The policy of the United States was to encourage emigration of the 
 ■ Cherokees to Arkansas, as the most effectual means to get clear of the con- 
 flicting obligations of the United States to Georgia, North Carolina, Ten- 
 nessee, and Alabama, on the one hand, and to the Cherokees on the other. 
 This was the great desire. A minor desire was to induce them to take 
 reservations, and become citizens of the United States, as auxiliary to their 
 removal to Arkansas. It was far from the desire or policy of the United 
 States to throw any obstacles in the way of any of those who should be 
 inclined to remove from the east side of the Mississippi to Arkansas. On 
 the contrary, every encouragement to remove to Arkansas, every persua- 
 sion, was used to effect that object. Such policy and such persuasions are 
 to be seen in the correspondence between the Secretary of War with Gov- 
 ernor McMinn, of December 2, 1817; March 16, 1818; July 29, 1818; 
 (two letters,) December 29, 1818, and various others, published in Ameri- 
 can State Papers — Indian Affairs — vol. 2., p. 478 to 490. The policy of 
 the eastern Cherokees was to prevent the removals to Arkansas and to dis- 
 courage the taking of reservations, as will be seen in parts of the corres- 
 pondence before referred to. 
 
 To forfeit reservations for removal to Arkansas after the final adjustment 
 by the treaty of 1819, would have been a great discouragement to re- 
 movals, and in direct hostility to the avowed policy of the United States 
 which has been pursued not only towards the Cherokees, but towards all 
 the Indian tribes and nations. It has been the anxious desire, the un- 
 ceasing effort of the United States, to remove all the Indians from within 
 the borders of the States, to the west side of the Mississippi river. 
 
 So far from its being allowable to contest the validity of reservations 
 under the treaty of 1817; on the ground that they were in the then un- 
 
Mis. No. 8. 53 
 
 ceded territory, the 13th article of the treaty of New Echota expressly 
 confirmed them, " although, by the treaty of 1819, such reservations were 
 included in the unceded lands belonging to the Cherokee nation." 
 
 Here it is convenient to repel the rigidity which has been practised by 
 the coramissioners towards reservations, in seeking out forfeitures and 
 other obdurate objections, by invoking attention to the clauses of the 13tli 
 article, by which it is declared that the claimants shall be entitled to the 
 reservations, " where the terms on which the reservations were made, in 
 the opinion of the commissioners, have been compHed with as far as prac- 
 ticable." Mr. J. F. Schermerhorn, the negotiator of the treaty of 1835- 
 '36, states in his diary of the 23d and 28th December, 1835, that " in 
 order to remove complaints as to the non-execution by the United States of 
 the treaties of 181 T and 1819, respecting reservations, and satisfy the In-, 
 dians of the disposition of the XTnited States to do them ample justice, the' 
 article 13th of the treaty was inserted on this subject, which provides for 
 carrying into effect the provisions of former treaties as far as practicable, 
 and which the honor and good faith of the nation render indispensable." — 
 (See Senate doc. No. 120, 25th Cong., 2d sess., lS37-'38, vol. 2, p. 516.) 
 
 \\^ell might the Cherokecs who Avitnessed, with amazement, the paltry 
 shifts and far-fetched objections to deny compensations for reservations, 
 raised by the commissioners, in violation of the spirit of this thirteenth, 
 article, exclaim: " Our Great Father who promised us justice, who prom- 
 ised to protect us, is gone! This is another father who disowns his chil- 
 dren. He does not protect us against his cruel servants." 
 
 The commissioners lastly appointed have reported to the President that 
 they have rejected twelve hundred and one claims of all descriptions, and 
 had allowed, in whole or in part, twenty eight, amounting to thirty-one 
 thousand five hundred and seventy-eight dollars and fifty cents. 
 
 It must be confessed that these last commissioners have been veiy obe- 
 dient to the instructions and advisements of the War Department; and 
 have manifested a pre-disposition, a pre-determination, for destruction. Tliey 
 did not adventure to issue certificates until the decisions were submitted to 
 the War Department; if there disapproved, the decisions were reversed and 
 annulled. Even their certificates were sent to the War Department, in- 
 stead of being delivered to the claimants respectively. By their fourth 
 rule it was declared: " The commissioners will not permit any claimant, or 
 person concerned for thern, to converse with the commissioners, or their 
 sccrelanj, privately, upon the subject of any claim, or matter relating 
 thereto;" whilst they, the commissioners, were instructed " that you fully 
 and freely advise with this department on the several matters committed to 
 you;" and did again and again hold such advisements. Thus a secret 
 court of star-chamber was erected, whose proceedings were as penal and 
 as destructive of the rights ©f the Cherokee claimants, as the old court 
 of star-chamber was to the rights of British subjects; which, for the just 
 odium into which it had fallen, was abolished by statute of 16 Charles I, 
 chap. 10, to the general joy of tiie whole nation. The enormous oppres- 
 sions of tliat old court of star-chamber are recorded in the histories of the 
 times. The task is ours to give some examples of the enormities practised 
 by this modern court of star-chamber which has recently expired. 
 
 That men are fallible; that all judicial tribunals, even those which are of 
 appellate jurisdiction and of the last resort, are subject to the errors insepa- 
 rable from the imperfections and fallibilities of human nature, is admitted. 
 
M ' ' Mis. No. 8. 
 
 As a general principle, it is convenient and proper to presume, when a 
 tribunal of competent and final jurisdiction has examined and. adjudicated, 
 that the decision is according to right and justice. But this, like all other 
 general rules, is not without its exception. 
 
 If the error be evident, palpable, " et in re minime dubia," (in a matter 
 not doubtful,) it then assumes another form; it excites presumption that it 
 was not mere error, but premeditated wrong; and the foreigner, as well as 
 the native, suffering by the wrong, may as reasonably complain as for 
 a wrong committed in any other w^ay. In such case, if no redress be 
 otherwise obtained, a foreign prince may listen to a complaint from his 
 subjects injured by the adjudication; may inquire into its principles, prove 
 their criminality, and, according to the magnitude of the Avrong, take his 
 measures of redress, by reprisal, (fcc, &c. 
 
 For these principles the authority of Mr. Jefferson is sufficient; no other 
 need be cited. (See Mr. Jefferson's letter as Secretary of State, of 6th 
 April, 1792, to Mr. Hammond, minister plenipotentiary of Great Britain; 
 American State Papers, Foreign Relations, vol. 1, p. 212.) As clear as 
 was Mr. Jefferson's vindication of the decisions of the State courts against 
 the imputations of the British minister, so clear will be the condemnation 
 of the decisions of the commissioners under the treaty of New Echota, of 
 which we complain. 
 
 The moral obligation of the government of the United States to redress 
 without delay these premeditated wrongs committed by the commissioners, 
 without deferring the matter until the Cherokee nation itself shall make 
 formal complaint to this government, is impressed by the following consid- 
 erations: 
 
 1. The decisions complained of were caused by the instructions, 
 promptings, and advisements of an officer of the Department of War, to 
 the court of commissioners established by the treaty of New Echota. 
 These interferences with that tribunal w^ere in violation of the law of na- 
 tions, and of the faith of the treaty. 
 
 2. The government of the United States is responsible for such improper 
 conduct of its own officers towards the court of commissioners established 
 by the treaty, and appointed by the United States. 
 
 3. Solemn treaties between the United States and the Cherokees, show 
 that the Cherokees are under the protection of the United States; " their 
 relation to the United States resembles that of a ward to his guardian." 
 Let not the United States exhibit to the world such a guardianship of the 
 Cherokees as that described by Sir Edward Coke, "Q,uasi agnum lupo 
 committere ad devorandum," (as if to commit a lamb to a wolf, to be de- 
 voured.) To vindicate the honor and good faith of the United States, 
 these instructions should be disavowed by the government; the officer who 
 has so offended should be punished; a commission should be issued to 
 persons of stern integrity, able jurists of high reputation and of undoubted 
 qualifications; to hold their commission, not during the pleasure of the 
 President, but during good behaviour, so long as the business shall require, 
 to examine and adjudicate all claims against the United States arising 
 under the treaty of New Echota. 
 
 Of the cases adjudged by the commissioners, the following examples 
 (out of many others) will suffice to show their settled purpose to conform 
 to the instructions and advisements of the Commissioner of Indian Affairs, 
 and to do premeditated wrong to the Cherokees. 
 
Mis. No. a . ■ ■ /• ■• ■■ .: '; 55 
 
 ■ An aged fernaie Cherokee, J. Y. Ostah, a widow, and her three children, 
 were, in the year 1S18, duly registered for a reservation, inckiding her 
 residence and improvements. She continued to reside thereon until her 
 land was sold under the law of Tennessee as of the public domain of that 
 State: the purchasers pulled down her house and turned her to the winds. 
 In that condition the agent of the United States gave her, in charity, two 
 blankets, worth about ten dollars. The reservation of 640 acres of land 
 was worth not less than three thousand dollars. No agreement of sale of 
 the land is proved even by parol — no Avriting is pretended. By the law of 
 Tennessee to prevent frauds and perjuries, no verbal agreement for the sale 
 of land is valid. Under the circumstances, if a sale of the tract of land 
 worth three thousand dollars for the two blankets worth ten dollars had 
 been sworn to, yet the value of the land, compared witli the value of the 
 two blankets, would have been internal evidence of fraud, imposition, and 
 duress; yet commissioners, two of the commissioners, determined that J. 
 Y. Ostah had sold her land for tw-o blankets, and therefore rejected the 
 claim of her children, she having died. A rehearing and award to the 
 children, of the value of the reservation, was moved before commissioner.'? 
 Harden and Brewster, and they rejected the claim on 14th January, 1S47. 
 
 Oo-loocha, a widowed Cherokee, the head of her family of two chil- 
 dren, was duly registered in iSlS for her reservation, to include her resi- 
 dence and improvements. She continued to reside thereon for years, 
 when she married the Indian chief Path Killer, and went with her hus- 
 band to his residence, leaving her goods in her house and her live stock 
 on the land. She died soon after she went with her husband to Turkey 
 town. The commissioners adjudged that Oo-loocha had forfeited the res- 
 ervation by removal; and the claim of her son, Ahama, was rejected by 
 commissioners Kennedy and Wilson. Commissioners Harden and Brews- 
 ter were moved on the 9th November, 1846, for an allowance of the claim 
 of Ahama, the son of Oo-loocha; they rejected the claim on the loth 
 January, 1847. In the opinion of these commissioners, neither obedience 
 to her husband, nor her continuous possession by her goods in her house, 
 and her live stock on the farm, could save Oo-loocha from the charge of a 
 voluntary abandonment, removal, and forfeiture; marriage and coverture 
 was no saving; to obey and go with her husband was no excuse; to retain 
 possession by her household goods and by her live stock left on the prem- 
 ises, was not legal; in the opinion of the commissioners, her acts were ad- 
 judged to amount toa voluntary removal, dund forfeiture of the reservation. 
 
 The commissioners, Kennedy and Wilson, were under instructions from 
 the War Department, by letter of Mr. Harris of June 19, 1838, that "no 
 payment whatever should be made on account of reservation claims under 
 the treaties of 1817 and 1819;"*' and Messrs. Harden and Brewster were 
 under the instructions, (as before cited,) that claims passed upon by a for- 
 mer board must be rejected. The commissioners must either obey instruc- 
 tions or lose their places and emoluments of office: it was more convenient 
 to the commissioners that the children of J. Y. Ostah and of Oo-loocha 
 should lose compensation for their reservations, than for the commission- 
 ers to disobey instructions and lose their places. 
 
 The agent of the United States, in taking enrolments of Indians for re- 
 moval to Arkansas under the treaty of 1828, prepared his books, and headed 
 ihe columns for signatures, by the appropriate allusion to the treaty oflS2S 
 and enrolments under it, with a conveyance and release to the United 
 
5Q ■ .■■ ,. .'. Mis. No. 8. 
 
 States of the reservation.?; to be undersigned Ly those wlio should enroT for 
 Arkansas according to the treaty of 182S, with a saving at the foot tliat tt)ey 
 were to be paid for injproven:ients left, " and to receive all other interests- 
 from former or future treaties that have or may be concluded betAveen the 
 government of the United States and their tribe east of the Mississippi." 
 
 Under this same heading, Abraham Davis signed his name as enrohing for 
 removal from the east side of the Mississippi river to Arkansas, under the terms 
 of the treaty of 1828. This same Abraham Davis, having for wife a Chero- 
 kee woman, and three children, had duly registered himself and his family, 
 five in number, in the year 1818, for a reservation under the treaty of ] 817, 
 as shown by the register and by his certificate, to include his improvement 
 one and a quarter mile southeast of Gunter's. In pursuance of the last 
 enrolment, Abraham Davis removed to Arkansas. After the treaty of 1 835^ 
 Abraham Davis presented his claim to commissioners Kennedy, Wilson 
 and Liddell, for compensation for his reservation. The commissioners, 
 Kennedy and Wilson, quote the conveyance and release in part, omitting 
 the saving at the foot of it, and rejected the claim, because, as they say, he 
 had sold and conveyed his reservation to the United States and had re- 
 moved from it. The decision on its face carries these enormities and absurd- 
 ities: 1st. In quoting only a part of the release, and garbling its terms. 2d. 
 In denyiirg to the party the compensation promised by the treaty of 1828,. 
 under faith of which the enrolment, release and removal to Arkansas were 
 made. 3d. In making a removal invited by the TTnited States and evidenced 
 by the very instrument quoted, and by the book from which it was quoted, 
 such a removal as barred his right to the value of his reservation under the 
 treaty of 1828, and under the treaty of 1835-36. 
 
 Thomas Davis, the only surviving child of Abraham Davis and wife, 
 having the entire right of the remainder in fee simple in his o»vn right, and 
 as heir to his deceased father and mother, brother and sister, presented his 
 claim before commissioners Harden and Brewster, who rejected it on the 
 23d March, 184T. Messrs. Kennedy and W'ilson were under instructions 
 firom the office of Indian affairs, " that no payment whatever should be 
 made on account of reservation claims under the treaties of 1817 and 1819," 
 and therefore they must reject the claim upon some pretence, no matter 
 how absurd. Messrs. Harden and Brewster were under instructions con- 
 tained in the letter of Mr. Medill, of the Indian office, before mentioned. 
 
 Such decisions bear the brand on their front of intentional wrong. 
 
 Betsey Woodward registered herself and child under the treaty of 1817, 
 and continued to reside on the reservation un^il she married Moses Elder, in 
 1820, who was killed in the same year. She enrolled for, and removed to- 
 Arkansas under the treaty of 1828, having signed the enrolment and release 
 before mentioned. The claim to compensation for her reservation was re- 
 jected, because she had removed to Arkansas in 1834 and signed the release 
 aforementioned, and because she had married and ^one with her husband 
 in 1820. 
 
 James M'Intosh registered for his reservation under the treaty of 18175. 
 and continued to reside on his reservation until 1820; white men settled 
 on it without leave, and threatened to kill him; he went ofi" under fear of 
 his life, as proved by witnesses. Some proof was introduced to prove a 
 verbal sale in 1819, No evidence in writing was produced or pretended. 
 His claim was rejected because of the pretended sale and voluntary removal. 
 
 Jesse Scott registered himself, wife, and two children for reservation 
 
Mis. No. 8. • ' 57 
 
 under the treaty of 1817, and continued to reside on it until he signed the 
 enrolment and release aforementioned, in 1833, and removed to Arkansas. 
 Commissioners Kennedy and Wilson re;iected the application of Jesse 
 Scott for compensation for his life-estate, because of his said release and 
 removal to Arkansas; although the government invited the removal; al- 
 though the release, on its face, showed the intent and cause, and contained, 
 in law and in fact, a saving of the right to compensation. The claim of 
 the children of Jesse Scott was rejected on the grounds for rejecting the 
 claim of the father. 
 
 Isaac Yan registered himself and wife for reservation under the treaty of 
 1817; continued to reside on it in Tennesse, until one Corbit, in 1819!, 
 moved into the house, and by threats and force kept possession. In 1832 
 Isaac Yan enrolled for Arkansas, signing the release before mentioned. 
 On his application for compensation a witness swore that " he had heard a 
 deed read" from Yan to one Bo^^d for the reservation of Yan in consider- 
 ation of :^1,100. Without any proof of the execution of the deed, without 
 proof of delivery, without production of the deed, or of a copy, without 
 any proof of payment, but upon such equivocal parol proof of a writing 
 heard of, not produced; upon such hearsay of sale, and upon the release 
 in the enrolment aforementioned, the commissioners rejected Yan's claim for 
 compensation. No court of justice intending to do right would have re- 
 ceived such hearsay, such hearing of a deed. By law, land can only be 
 bargained and sold by writing. By the 12th section of the act of Con- 
 gress of 1802, March 30, before quoted, an Indian could make no grant, 
 sale, or conveyance to an individual purchaser; such sale and purchase 
 were by that act declared void. By the rules of evidence, that wriich by 
 the institution of law must exist by deed, must be proved by the produc- 
 tion of the deed, unless in extremity, as loss, of the deed by fire or other 
 casualty, which must be proved. That it is dangerous, and against the 
 settled rules of law and evidence, to suffer proof by witnesses '' that there 
 was such a deed which they have heard and read,'''' is well shown by the 
 court in Doctor Layfield's case, (10 Coke, 92, (b;) and in Littleton, sect. 
 365; and in Co. Litt., 225.) To every deed there arc two things requisite: 
 the one that it be sufficient in law, of which the judges are to determine; 
 the other concerns sealing and delivery, which are matters of fact, to be 
 proved. Men would hold their landed estates b^'- a very feeble tenure if 
 they could be ousted by the oath of a witness that "he heard a deed 
 read," but neither had read it himself nor knew its execution and delive- 
 TY-, nor knew that any payment was made, and when not a copy even 
 was produced to enable the judges to examine its legal effect and suffi- 
 ciency. And yet by such illegal and vague oath of a witness, the com- 
 missioners deprived Isaac Yan of the compensation due for his reservation, 
 to v/hich he was entitled by the registry kept by the agent of the United 
 States now on file in the War Department. 
 
 The commissioners were instructed and advised to reject claims for res- 
 ervations, and seized any pretext, however frivolous. 
 
 The last example shows an eagerness to destroy a right by admitting 
 and acting upon illegal parol testimony, in defiance of the plainest rules of 
 evidence and against common sense. The case of the children of Culso- 
 wee shows the rejection of legal parol evidence. 
 
 Culsowee had filed the declaration of her intent to become a citizen of 
 the United States, and to take a reservation for herself and children under 
 
58 ; . '- Mis. No. 8. 
 
 the treaty of 1817. The agent of the United States gave her a certifioate 
 of her right to a reservation to include her improvements. The existence 
 of the certificate and the loss of it were proved. The only objection to her 
 claim Avas that her name did not appear on the register furnished by the 
 War Department to the commissioners. In every matter the claim of Cul- 
 sowee was complete. 
 
 The children of Culsowee presented their claim and adduced the proof. 
 The claim was rejected because the agent of the United States had omit- 
 ted to register in the book kept by himself, and wholly written by himself, 
 the declaration and application of Culsowee, whereof he had given a cer- 
 tificate. 
 
 Culsowee could not make the agent insert her name in his own book, writ- 
 ten wholly by himself. She had no control over that. She was not respon- 
 sible for the accidental omission of the agent of the United States. She 
 had done all in her power; all that the treaty required. She had filed her 
 application Avith the agent of the United States "in the office of the Chero- 
 kee agent" — that was all she was required to do; all she could do. The 
 agent gave her a certificate of the fact and of her right. No principle is 
 more firmly settled than that a party is not to lose his or her right by the 
 omission of a public officer to do his duty, whether by accident, neglect, 
 or by design. The rule of evidence is well settled, that if a bond, a deed, 
 or other writing is destroyed by fire, or lost by time or accident, the right 
 growing out of the written instrument is not lost. The accidental loss of 
 the instrument does not demolish the fact of its previous existence, and 
 secondary evidence is admissible to establish the fact of such previous ex- 
 istence. 
 
 In the case of Van, the commissioners admitted illegal parol evidence by 
 a witness "that he had heard a deed read," when no foundation was 
 laid to dispense with the production of the deed if it had been sealed and 
 delivered, and when such hearsay, or '■'■ lieai- read,''^ was inadmissible in 
 any state of the case, and upon such illegal evidence the commissioners ad- 
 judged against the claim of Van, because it discharged the United States. 
 In Culsowee's case and her children's case, legal parol evidence was re- 
 jected; nothing but the writing itself would be received. Thus these 
 commissioners could blow hot and cold; contradictions yes and no, eodem 
 flatu, just as it became necessary to destroy claims, and thereby conform to 
 the tenor and effect of instructions. Mr. Harris's letter says, " I am di- 
 rected by the Secretary of War to instruct you, that in his judgment no 
 payment whatever should be made on account of reservation claims;" "to 
 enable the agents of the government to arrive at the truth, such measures 
 as may seem proper will be adopted." And subsequent instructions from 
 the War Department of 2Sth September, 1842, of 20th June, 1844, and 
 27th August, 1846, were very sufficient to give the cue to the commission- 
 ers to make war against all claims, per fas aut nefas; not forgetting the 
 polished instruction of Mr. Harris of 12th December, 1837, to the commis- 
 sioners, when sitfing in Tennessee, to select and employ counsel to assist 
 them in rejecting claims which they were to adjudicate; and the very re- 
 fined and modest suggestion of Mr. Medill, Commissioner of Indian Af- 
 fairs, dated War Department, office Indian affairs, August 27, 1846, to 
 the commissioners, Messrs. Harden and Brewster, sitting in the city of 
 Washington, " that you fully and freely advise with this department 
 touching the matters committed to you.".. 
 
Mis. No. 8. 59 
 
 The claim by the children of William Jones, deceased, shows that their 
 father, said William Jones, duly registered for a reservation in North Caro- 
 hna, worth at least fifteen dollars per acre, and continued to reside on it 
 and to cultivate it, until it was surveyed by the commissioners of North 
 Carolina, and he was driven off by the white men and was killed two or 
 three years after he took the reservation. The claim of the children was 
 rejected. 1st. Because the courts of North Carolina were open to William 
 Jones for the forcible expulsion. 2d. Because a person by the name of 
 Waka alias Peggy Jones, as the widow of William Jones, had conveyed 
 her right to the State of North Carolina. The true widow, Peggy Jones, 
 filed her affidavit that she had never sold her right. The magistrate, 
 Samuel Sanders, certified her afiidavit, and that from the general character 
 of Peggy Jones, the widow of William Jones, he believed the statements 
 in her affidavit to be true. Thus it was evident that Waka alias Peggy 
 Jones, who signed the deed, was not Peggy Jones the widow of William 
 Jones. But the commissioners rejected the claim. The decision that the 
 sale by the widow could bar the vested remainder of the children, was 
 ridiculous; the inference that Waka was the widow of William Jones, 
 without proof and in teeth of the denial on oath of the true widow, was 
 equally so; and the decision that because the courts of North Carolina were 
 open to William Jones for damages for the forcible expulsion from the 
 premises, that therefore he had forfeited his right to the land, was absurd; 
 not error merely, but designed, premeditated wrong. 
 
 Messrs. Harden and Brewster took up this case, in the absence of the 
 children of William Jones, without any application to them, and affirmed 
 the decision of the former commissioners, Kennedy, Wilson, and Liddell, 
 because no bill of review or assignment of errors in the former decree had 
 been filed with them. 
 
 Chunalusky took a reservation in North Carolina under the treaty of 
 1819. His claim for compensation was rejected under the pretext that he 
 had sold to the agents of North Carolina. The proof is clear that he was 
 told by the agents that he had no right to a reservation; but that as he had 
 fought bravely under General Jackson, against our Creek enemies, the 
 agents would make him a present of fifty dollars as a reward for his ser- 
 vices, and obtained his mark to a writing represented to him to be only a 
 receipt for the fifty dollars, to enable them to show how they had disposed 
 of the money. The proof is clear that the writing was obtained by mis- 
 representation and fraud. The value of the six hundred and forty acres 
 of land, compared with the fifty dollars, the alleged price paid for it to the 
 Indian Chunalusky, not only corroborates the parol proof of imposition 
 and fraud, but is in itself sufficient evidence of an undue advantage taken 
 of his condition, and of the imposition and deceit. 
 
 Hannah Harlin's claim to compensation was rejected as having been for- 
 feited by removal, when the proof was clear that she was forcibly expelled 
 from her reservation. 
 
 To these examples of adjudications upon reservations, others would have 
 been added, equally forcible and convincing, of the settled purpose to do 
 premeditated wrong to the Cherokees, had not the Commissioner of Indian 
 Affairs (Mr. Medill) refused to the counsel for the Cherokees the perusal 
 of the recorded decisions of the commissioners, for causes set forth in his 
 letter of September, 1847, in answer to a w"ritten request. To that request 
 and answer of Mr. Medill, and the reply thereto of our counsel, remaining 
 
60* Mis. No. 8. 
 
 in the office of Indian affairs, we refer, for the purpose of showing the 
 •grounds of Mr. Medill's refusal, and the continued purpose of inflicting 
 wrongs upon the Cherokees. If any shght inaccuracies shall be found in 
 this memorial as to the character of the decisions, and the principles of the 
 adjudications^ they will find an apology in the refusal df access to the 
 records. 
 
 In further illustration of the temper and disposition of the commissioners 
 to do palpable wrong to the Cherokees, we refer to the decision in the case 
 of the children of Lydia Fields. Before the claim was presented to the 
 board, before the evidence was prepared, the comimissioners found two de- 
 positions taken, (as parts only of the testimony,) which depositions had 
 been lodged for safe-keeping until the whole testimony should be completed. 
 Upon those depositions, without any appearance, v/ithout any claim pre- 
 sented for or on behalf of the children in their absence, the commissioners, 
 of their own mere will, unsolicited and unasked, took up the papers and 
 entered a decision rejecting the claim, and had it recorded. 
 
 The commissioners surely ought to have known that no court had any 
 rightful authority, any jurisdiction, to decree against persons not in court, 
 who had not appeared, who had not presented a claim, who had never sub- 
 mitted to their jurisdiction. Such a proceeding argues either gross igno- 
 rance, or a keen appetite to do premeditated wrong; either of which is dis- 
 graceful to the judge and disgusting to the community. This transaction 
 is contrary to the principles of natural justice, of universal obligation. No 
 person can be concluded by a decision pronounced in his absence, in which 
 he was unheard; to which proceeding he was not a party, either by an ap- 
 pearance as a plaintiff or as a defendant, and without notice, actual or con- 
 structive, to appear and defend his rights. Such a proceeding is a nullity. 
 
 Of the lilvc pruriency for rejecting claims in advance before they were 
 presented, other examples are to be found in the proceedings of commis- 
 sioners Harden and Brewster, in the catalogue of twelve hundred and one 
 rejected claims, which, with self-cOmmendation and complacency, they 
 have reported to the President, along with twenty-eight only allowed, in 
 whole or in part, costing the treasury no more than thirty-one thousand 
 five hundred and seventy-eight dollars and fifty cents. 
 
 The refusal of the Commissioner of Indian Affairs to suffer the public 
 records of the decisions of the commissioners to be inspected by counsel, 
 cuts off many specifications of decisions palpably and absurdly erroneous, 
 and adds another grievance to the catalogue of wrongs which have been 
 heaped upon the. Cherokees by the Commissioner of Indian Affairs. Hav- 
 ing inflicted injuries hy erroneous interpretations of the treaties and im- 
 proper instructions to the commissioners, the Commissioner of Indian 
 Affairs now seeks to hide the wrongs done to the claimants by locking up 
 the records of the decisions of the commissioners, thereby hoping to pre- 
 vent the exposure of the palpable and glaring eiTors, so manifestly improper 
 as to bear internal evidence of prem.editated wrongs and passive obedience 
 to the erroneous and meddlesome instructions of the Commissioner of In- 
 dian Aflairs and influence of the War Department. 
 
 By withholding the records, it was intended that the general presump- 
 tion of fairness in the conduct of the business, and of the correctness of 
 the decisions of the board of commissioners, should be indulged. 
 
 The President of the United States has, in his late message, indulged 
 such presumption; and relying upon that; and upon the communications 
 
Mis. No. 8. ~ 61 
 
 to him made by persons interested to hide their own misconduct, he has 
 said, " The commissioners appointed under the act of June 27th, 1846, to 
 settle claims arising under the treaty of 1835-'36 with that tribe, have 
 executed their duties; and after a patient investigation and a full and fair 
 examination of all the cases brought before them, closed their labors in the 
 month of July last. This is the fourth board of commissioners which 
 has been organized under this treaty. Ample opportunity has been afforded 
 to all those interested to bring forward their claims. No doubt is enter- 
 tained that impartial justice has been done by the late board, and that all 
 \'alid claims embraced by the treaty have been considered and allowed. 
 This result, and the final settlement to be made with this tribe under the 
 treaty of 1846, which will be completed and laid before you during your 
 session, will adjust all questions of controversy betvv^een them and the 
 United States, and produce a state of relations with them simple, well- 
 defined;, and satisfactory." 
 
 Your memorialists, without intending any disrespect to the President of 
 the United States, are compelled, in truth and in defence of their rights, to 
 say that the President has been misinformed; that his ear has been abused; 
 that his confidence has been misplaced; that the commissioners appointed 
 under the act of 1846 have not executed their duties; that they have not 
 investigated the claims fully and fairly; that impartial justice has not been 
 done; that ample opportunity has Jiot been afforded to the claimants; that 
 all just claims have not been allowed. 
 
 On the contrary, your memorialists allege, aver, and are ready to prove 
 that the proceedings of the said commissioners appointed under the act of 
 1846 did not resemble the fairness, patience of investigation, and means 
 of attaining impartial justice, which usually have attended courts of judi- 
 cature. No notice was given to any claimant that his case was taken up 
 for adjudication; no arguments were allowed to be read to the board; no 
 opinion or decision was read at the board to the claimants or their attor- 
 neys. The fixed predetermination was to obey the instructions issued 
 from the War Department; to reject claims; not to examine them impartially. 
 
 It is notorious that one of the commissioners was absent from the city of 
 Washington, and from his duties as commissioner under the Cherokee 
 treaty, by far the greater portion of the year, attending to other pursuits and 
 spending his time in Philadelphia; and the journals are falsely made to 
 read as if the board met, when one of the commissioners was not present, 
 but far away, as before stated, and so repeatedly and so long absent as to 
 have caused complaint and remonstrance; and a letter to him at Philadel- 
 phia was written by the Commissioner of Indian Affairs, to return to the 
 duties of the commission. In defiance of the fleets, the commissioners, 
 by a report to the President of the United States, bearing date July 23, 
 1847, and by him referred to the office of Indian affairs, and therein re- 
 maining, stated that the board was organized on the 3Ist July, 1846, and 
 closed on the 23d of July, 1847; and from that time to the present (23d 
 July, 1847,) it " has been constantly in session and kept open for the con- 
 venience of claimants, for the purpose of filing cases and examining papers 
 and records in the office of the commission, and at the same time the com- 
 missioners have been engaged in investigation of the claims presented and 
 rendering decrees therein." Such a report could not be otherwise than 
 matter of astonishment to those who had attended their sittir.gs when held, 
 and had witnessed the absence of one of the commissioners so repeatedly 
 and for such long intervEds. 
 
62 \ Mis. No. 8. 
 
 '■■■ y 
 
 The commissioners required all claims to be filed with the proofs, in 
 writing, by the 25th December, 1846, but enlarged the time to the 1st day 
 of January, 1847. The notice was published in certain newspapers, com- 
 mencing on the 24th September, 1846, as they say, giving about three 
 months from the first publication for filing the proofs in writing. How- 
 soever sufficient such notice and time to the Cherokee claimants, dispersed 
 in their country on the Arkansas and White rivers, to get their proofs in 
 writing and send them to Washington, in the District of Columbia, might 
 appear to the commissioners, yet to practical business men, and in the eye 
 of impartial reason, such a notice to such a people, of a newly organized 
 court, with such requirements, seems wholly insufficient. In matter of 
 fact it was insufficient; and from the doings of the commissioners, it wears 
 the appearance of having been devised under the false guise of notice and 
 opportunity to the claimants, to enter judgments against them by surprise 
 and want of preparation. 
 
 The commissioners, during the short period of time in which they ac- 
 tually were in session, report that they had decided twelve hundred and 
 twenty-nine cases, allowed twenty eight, and rejected twelve hundred and 
 one. This wonderful despatch in getting over cases in the short space of 
 time whilst the two commissioners were together, resembles the quick pro- 
 gress of the school boy who got over all his lessons by laying down his 
 book and jumping over it. 
 
 They did not comprehend their powers, duties, and solemn obligations, 
 nor the extent and duration of their commissions. The law making appro- 
 priation for the expenses of the commission, approved 27th June, 1846, 
 provided " that the commission hereby revived shall continue for one year, 
 and no longer." Under that act the commissions fo Messrs. Harden and 
 Brewster respectively bear date on the twenty-third day of July, 1846, 
 for one year, (and at the pleasure of the President during that time.) The 
 commission, therefore, expired by its own limitation on the 22d day of 
 July, 1847. They were in commission on the 23d day of July, 1846, 
 and any act by them done within the pale of their commission on that day 
 would have been legal and valid. 
 
 Judge Blackstone, in his Commentaries, (vol. 1, p. 463,) says: "Full age, 
 in male or female, is twenty-one years, which age is completed on the day 
 preceding the anniversary of a person's birth." 
 
 So in l^itzhugh vs. Dennington, (2 Lord Raymond, 1096:) " If a man 
 were born the first of February, and lived to the thirty-first of January, 
 twenty-one years, and then malf.es his will after five o'clock in the morn- 
 ing, and dies by six at night, that will is good, and the devisor is of age." 
 
 So, also. Anonymous, 1 Salk., 44; per Holt, Ch. Justice. 
 
 In Clayton's case, 5 Coke's Rep., vol. 1: "Where the indenture of lease 
 for three years henceforth was delivered at four o'clock in the afternoon of 
 the twentieth of June, it was resolved that this lease should end the nine- 
 teenth day of June in the third year, for the law in this computation doth 
 reject fractions and divisions of a day." 
 
 In Coke's 3d Institute, chap. 7, p. 53, how the year and a day shall be ac- 
 counted: "If the sU'oke or poyson be given the first day of January, yet the 
 year shall end the last day of December; for though the stroke or poyson, 
 &c. were given in the afternoon of the first of January, yet that shall be 
 accounted a whole day, for regularly the law maketh no fraction of a day." 
 
 In 3 Dyer's Rep., p. 286, case 43, it was adjudged that a lease made on 
 the 8th day of May included that day in its commencement. 
 
Mis. No. 8. .. m 
 
 The decision in the case of tlie King vs. Addeiiy, 2 Douglas, p. 464, con- 
 curs with the doctrine of the cases before cited. 
 
 It is clear that the day on which the commissions bear date, July 23, 
 1846, is included in the commencement of the commission, and that the 
 commission ended on the twenty-second day of July, 1847; yet Messrs. 
 Harden and Brew ster, on the twenty-third day of July, 184T, rejected claims 
 as if their commissions had not expired; every decision made by them on 
 the twenty-third of July, 1847, is null. 
 
 Other evidences of their incompetency, unfitness, palpable errors, and 
 passive obedience to the instructions of the War Department, are furnished 
 by the records of their decisions. They took up claims not presented by 
 the persons, and rejected them, in hot haste to decide in favor of the United 
 States, to swell the list of rejected claims, and save the treasury of the United 
 States at the expense of the faith of solemn treaties and honor of the United 
 States, supposing that their decisions, howsoever erroneous in matters not 
 susceptible of doubt, but wearing the appearance of premeditated wrong, 
 would nevertheless be beyond all remedy, and save the treasury of the 
 United States; and such seems to have been the notion of Mr. Medill, the 
 Commissioner of Indian Affairs, in his letter refusing access to the records 
 of the decisions of the commissioners. These men seem to have taken 
 license to do wrong, because there was no court of errors and appeals hav- 
 ing cognizance, as an appellate tribunal, to review and reverse their palpable 
 errors and premeditated wrongs. 
 
 Some claims for pre-emptions were brought before the second board of 
 commissioners, Messrs. Eaton and Hubley, and allowed, before they were 
 dismissed from office. Such disobedience to the instruction " that there 
 are no pre-emption rights — they were provided for by the 12th article of the 
 original treaty, but abrogated by the 1st of the supplemental articles, and 
 never had more than an inchoate existence," with that other act of disobe- 
 dience in allowing a claim '^virtually rejected" by the former board, by a 
 decision manufactured by the War Department, notwithstanding the in- 
 struction " that no case which has been adjudicated by the former board is 
 open to your examination," was too sinful to be endured at the War De- 
 partment. Messrs. Eaton and Hubley were dismissed. 
 
 The reasoning of the Commissioner of Indian Affairs upon the 12th ar- 
 ticle of the original treaty and 1st article of the supplement, that claims 
 to compensation for pre-emptions should be rejected because they "never had 
 more than an inchoate existence, which is gone," did not satisfy Mr. Harden 
 that the compensation therefor promised by the third supplemental article 
 should be disallowed. Mr, Brewster differed from Mr. Harden. The dif- 
 ference was certified to Mr. Attorney General Clifibrd, who agreed in 
 opinion with Mr. Brewster; and so this last commission not only rejected 
 all applications for compensation for pre-emptions, but having been furnished 
 with a list of all persons to whom certificates for pre-emptions had been 
 granted, all were taken up and rejected without regarding the non-appear- 
 ance of the persons. 
 
 Not only in pre-emption cases, but in cases of reservations and damages 
 under the 1 6th article, after a written application to the board not to take 
 them up for adjudication until further proof and argument should be filed, 
 these were taken up and rejected. The spirit and settled purpose to reject 
 claims presented and not presented, so as to bar the claimants and exon- 
 erate the treasury, by the notion that rejected claims would not be within 
 
64 • ■ Mis. No. 8. 
 
 the jurisdiction of any future board which might be instituted, was mani- 
 fested by this fourth board in the manner of conducting their proceedings. 
 as well as in the decisions wliich were given. 
 
 The case of Nancy Reed and her children, claiming the compensation 
 for the reservation taken by William Reed as the head of the family, waS; 
 on the 15th July, 184T, certified to Mr. Attorney General Clifford as npon 
 a difference of opinion l)etween the two commissioners, involving the ques- 
 tion how far the act of the head of the family, the tenant for life, could affect 
 the dower of the wife and the remainder in fee to the children. In this 
 proceeding there are features of a peculiar character, deserving particular 
 notice. 
 
 The difference of opinion, and certificate thereof to the Attorney General 
 for his decision, bear date on the 1.5th of July, 1847; the commis- 
 sion expired on the 22d of July, 1847, (as before explained;) the opinion 
 of the Attorney General bears date on the 22d July, 1847, which was on the 
 day of the expiration of the commission ; and on the 23d day of July, 
 1847, after Messrs. Harden and Brewster were out of office by the limita- 
 tion of their commissions, respectively, they entered their decision on the 
 record of their proceedings, rejecting the claim of Nancy Reed (for the 
 value of her dower) and of the children for their estate in fee. 
 
 Another matter remarkable is, that decisions by the commissioners, 
 without difference of opinion; involving the like principle, had been before 
 that time signed and recorded in other cases, viz: On the 4th November, 
 
 1846, in the case of the children of Joseph Phillips; on the 13lh Janu- 
 ary, 1847, in the case of Ahama, son of Oo-loocha; on the 14th January, 
 
 1847, in the case of the children of J. Y. Ostah, or Spoiler; in the case of 
 Thomas Davis, son of Abraham Davis, and in other cases; insomuch that 
 Mr. Brewster had drawn up an opinion in the case of Nancy Reed and 
 her children, expecting it to be signed, as former opinions had been. 
 After the difference was certified, he said, in his opinion and argument in 
 writing, as submitted to the Attorney General, that he had frequently ex- 
 plained what seemed to be the '' interpretation of the treaty upon the sub- 
 ject now presented . I thought it unnecessary to iterate and reiterate the 
 reasons which I had assigned, and which had not only become the rule of 
 action for this commission, but had been the accepted version of the trea- 
 ties ever since they have been executed " 
 
 It would seem, from the previous decisions recorded without difference 
 of opinion between' these two commissioners, and from the arguments in 
 other cases which had been decided, which arguments were submitted to 
 the Attorney General along with the case of Nancy Reed and children, 
 either that Mr. Harden had not read the evidence and arguments in the 
 cases previously decided by the board, and was unconscious of what he 
 had decided in those previous cases, or that the difference of opinion in 
 the case of Nancy Reed and her children, at that late period, Avas only 
 colorable, to give an appearance of deliberation, and magnify the closing 
 scene of the tragedy by the appearance of tlie Attorney General as dramatis 
 persona. 
 
 Other features in the case not to be overlooked are, that the reservation 
 was taken by Wm. Reed, a white man, in right of his wife, an Indian 
 woman, and her children, under the treaty of 1819, and within the terri- 
 tory of North Carolina ceded by that ti'eaty; the husband, wife, and chil- 
 
Mis. No. 8. .05 
 
 dren continued to reside on it until the year 1821, when he became in- 
 temperate and abandoned his family, who still continued to reside on the 
 reservation until it was sold in the year 1824 by the State ^ and the family 
 were frightened from their reservation by the purchaser and a crowd of 
 white men. The claim of Nancy Reed and her children was resisted by 
 an alleged sale to the State of North Carolina, made by Wm. Reed, after 
 he had abandoned his family and taken up with another woman, and of 
 course after the forfeiture by removal is alleged. The alleged sale rests 
 solely upon parol evidence, without any deed or writing proved to have 
 been executed, without any deed or writing produced, without any con- 
 sideration paid or promised. By this mode of proof the rules of evidence 
 were violated. The Attorney General and Mr. Brewster grounded their 
 opinions of a sale upon this illegal evidence by a parol of a matter which, - 
 by institution of law, must be by v.a'iting. There was no proof of the loss 
 or destruction of any writing; no proof of the execution of a writing; no 
 writing was proved in evidence. They make such an alleged sale one of 
 the groundworks of their opinion. The sale by the owner of the life 
 estate, upon a nameless consideration, after he had forfeited it by his re- 
 moval, as is alleged, is made to destroy the remainder in fee of the 
 children, and the right of dower of the wife. Again, the actofWm. 
 Reed, the husband, in deserting and abandoning his wife and children, 
 whilst they remained on the reservation taken by the white man in right 
 of his Indian wife and her children, is adjudged to be an abandonment of 
 the reservation — a forfeiture. The estate of the children forfeited by the 
 4;rime of the father!! 
 
 The United States allege a sale, in bar of the claim to compensation. 
 If a sale and conveyance was made, the deed is the evidence. No deed, 
 no writing, was produced. 
 
 If a forfeiture had accrued for a removal, that matter should have been 
 proved and insisted on by inquest and office found, before the treaty of 
 New Echota. After accepting of a release of the title to the land, and 
 promising payment for such relinquishment, it is too late to go behind the 
 release, and promise of money for it, and allege a previous forfeiture of the 
 title to the lands. To go back and incjuire into an act alleged, over which 
 a quarter of a century or more has rolled, for the purpose of raising a ques- 
 tion of forfeiture for removal, whereby to escape from the compensation 
 promised for a release in the treaty of New Echota, would seem to the eye 
 of impartial reason a matter too antiquated, too excessively stale, to be used 
 by the government. 
 
 The Attorney General Clifford has said in his opinion, speaking of the 
 8th article of the treaty of New Echota, " It is not a conveyance, but a 
 compact." ''The United States contracted ' to give^ when the conditions 
 were performed. It was but a covenant to grant, and created no estate, if 
 the head of the family removed from the premises and abandoned the 
 same." 
 
 The condition precedent to be performed so that the esta?e might vest for 
 life to the head of the Indian family, with remainder in fee to the children^ 
 and dower to the wife, according to the 8th article of the treaty of 1817, (or 2d 
 article of the treaty of 1819,) was the election to become a citizen of the 
 ^United States, signified by the register of the names, ''to be filed in the of- 
 fice of the Cherokee agent." This condition was performed on the 9th of 
 August, 1819, and the family continued to reside on the reservation as be- 
 5 
 
m Mis. No. S. 
 
 fore mentioned. By the performance of this condition precedent the estate 
 vested in "William Reed for his life, with the remainder in fee to the chil- 
 dren, (then born and living on the land,) with the right of dower to the 
 wife. 
 
 But the Attorney General speaks of" conditions" to be performed. "It 
 was but a covenant to grant, and created no estate, if the heed of the 
 family removed from the premises." Here the Attorney General has mis- 
 taken a subsequent, negative condition concerning removal, for non ob- 
 servance, whereof a vested estate was defeasible, and to return to the 
 grantor, for a precedent affirmative condition to be performed before the 
 estate could take effect. It is as great a blunder as that of putting the cart 
 before the horse. 
 
 The proviso in the Sth article is, "that if any of the heads of families, 
 for whom reservations may be made, should remove therefrom, then, and 
 in that case, the right to revert to the United States." How could the 
 right revert or return to the United States because of the removal, if the 
 right had never passed fi'om the United States^ had never vested in the 
 grantee, who was prohibited to remove? 
 
 This proviso which prohibited removal was a condition the observance 
 of which consisted in not doing, in not removing; which could not create 
 an estate in the Indian family by the observance of it, but could do no 
 more than defeat the executed vested estate, if the head of the Indian 
 family did not abstain from the prohibited act. These distinctions be- 
 tween precedent affirmative conditions to be fulfilled to create an estate or 
 make it take effect, and subsequent negative conditions by non-observance, 
 of which an estate executed and vested may be defeated, are clearly ex- 
 plained by Mr. Justice Doderidge, in Touchstone, chap, vi — of a Condi- 
 tion — pp. IIT, 118. 
 
 The distinction attempted by the Attorney General between a convey- 
 ance and a compact, between a covenant to grant, upon performance of a 
 condition, and an executed estate when the condition had been performed, 
 as used for the purpose and with intent to deny that William Reed and 
 his family had a vested right in the reservation until the question of re- 
 moval was settled, is refuted by the cases of Rutherford vs. Greene's heirs, 
 2 Wheat., 196-206; Ladiga vs. Roland & Co., 2 Howard, 582-590; Belk 
 vs. Love, 1 Devereaux and Battle, 65 to 76. 
 
 In the case of Rutherford vs. Greene's heirs, the legislature of North Caro- 
 lina, in the year 1782, enacted that " 25,000 acres of land shall be allotted 
 for and given to Major General Nathaniel Greene, his heirs, and assigns, 
 within the bounds of the lands reserved for the use of the array, to he laid 
 off by the aforesaid commissioners;" the commissioners thereafter allotted 
 the land to General Greene, and caused a survey to be made in March, 
 1783, which was returned to the office 11th May, 1783. Chief Justice 
 Marshall and the whole court unanimously determined "that the act of 
 1782 vested a title in General Greene to 25,000 acres of land, to be laid off 
 within the bounds allotted to the officers and soldiers, and that the survey 
 made in March, 1783, gave precision to that title, and attached it to the 
 land surveyed." 
 
 The case of Ladiga vs. Roland arose under the treaty with the Creek 
 Indians, by which the United States engaged to survey the ceded country 
 as soon as could be conveniently done; " and when the same is surveyed, 
 to allow every head of a Creek family to select one-half section each; a 
 
Mis. No. 8. ' 
 
 census of these persons sAa// be taken under the direction of the President, 
 and the selections sJinll be made so as to include the improvements of each 
 person within his selection if it can be so made; and if not, then," (fcc. 
 Ladiga was oiie of the Creeks included in the census, and made her selec- 
 tion, including her improvement. The Supreme Court of the United 
 States determined that, by the selection according to the treaty, she '' not 
 only has a right to the land in question under the treaty, but one wliich it 
 protects and guaranties against all the acts which have been done to her 
 prejudice." (2 Howard, 591.) 
 
 The case of Belk vs. Love was decided by the supreme court of North 
 Carolina, upon solemn argument upon one ot these Cherokee reservations, 
 mentioned in the 3d article of the treaty of 1S19. That article declares, 
 '• it is agreed and understood by the contracting parties that a reservation 
 in fee simple of 640 acres square, to include their improvements, and 
 which are to be as near the centre thereof as may be, shall be made to each 
 of the persons whose names are inscribed on the certitied list, (fcc. The 
 reservations are made on the condition that those for whom they are in- 
 tended shall notify in writing the agent for the Cherokee nation, within 
 six months after the ratification of this treaty, that it is their intention to 
 continue to reside permanently on the land reserved." Yonah was one 
 of the persons alluded to in that article of the treaty, and gave the notice 
 in writing to the Cherokee agent as required by the treaty. The suprem.e 
 court of North Carolina decided that upon the notice so given, Yonah took 
 imder this agreement, treaty, compact, and understanding, a vested interest, 
 a vested estate in fee simple, and that the sale and conveyance by Yonah 
 to Belk, the plaintiff in ejectment, passed the title to him. That by per- 
 formance of the precedent condition of giving the notice to the Cherokee 
 agent, the title vested. 
 
 These decisions prove authoritatively, clearly, and without doubt, that 
 the Attorney General is himself in a very great error when he supposes 
 that the Sth article. of the treaty, operating upon the election to become 
 citizens of the United States, and the register of the names filsd in the of- 
 fice of the Cherokee agent, according to that article, did not amount to a 
 conveyance, did not vest the title to the land in the head of the family for 
 life, with remainder in fee to the children; that no title passed to them, 
 because, as he says, " it is a very great error to regard the Sth article of 
 the treaty as a conveyance of real estate. It is not a conveyance, btit a com- 
 pact. The United States contracted 'to give' when the co;?a'2Yio?<5 were 
 performed. It was but a covenant to grant, and created no estate, if the 
 head of the family removed Irom the premises, and abandoned the same." 
 
 Now some men will think, and indeed most men will believe, that 
 the judges of the supreme court of North Carolina, and all the seven 
 judges of the Supreme Court of the United States in the decision in J SIT, 
 with Chief Justice Marshall presiding, and the seven judges of the Su- 
 preme Court of the United States in the decision in iS44, Mr. Justice 
 Story presiding, (Chief Justice Taney being absent because of severe in- 
 disposition,) are more to be relied on as expounders of treaties, convey- 
 ances, grants, and conditions, than Mr. Attoiney General Clitibrd. 
 
 The Attorney General Clifford's attention, was called to the case of 
 Ladiga vs. Roland, and to other cases, by the counsel for Mis. Reed and 
 her children, to show that the reservations described in the oth article of 
 the treaty of 1S17 became vested estates in the children " when the revSer- 
 
Mis. No. 8. 
 
 vee had registered his name with the Cherokee agent." But the Attorney 
 General could not see the similarity in the cases cited to the case of Wm. 
 Reed's reservation, and the bearing which the principles in the adjudged 
 cases so cited had upon the case of the children of Wm. Reed and his In- 
 dian wife Nancy. Pie could not see that the principles established in those 
 cases, if applied to reservations under the treaty of 1S17, would prove that 
 upon the registration with the Cherokee agent, according to the 8th article 
 of the treaty of 1817, the -estates became vested in the reservees presently, 
 and that they did not remain in abeyance thenceforth, until it should be 
 certainly known whether or not the heads of the families would observe 
 the subsequent negative condition, of not removing from the premises nor 
 abandoning them; but would well and truly keep and observe the said 
 condition, by dying on the premises. 
 
 He is dead to the force of truth who has no desire to perceive it, who 
 has no mind to comprehend it, and who is not at liberty to embrace it. 
 
 The Attorney General says that the eighth article '• was but an execu- 
 tory contract, which the United States were bound to fulfil when the con- 
 ditiojis upon which it was based were performed. The condition was, that 
 the head of the family should not remove." 
 
 Now if that be a condition to be performed before the head of the family 
 could have a vested estate in himself, then, whilst he M^as alive he might 
 remove and abandon the premises ; and therefore, until he died without 
 having removed, the executory contract was not performed on the part of 
 the head of the family, and so the United States were not bound until 
 then to fulfil their part of the executory contract; and as no life estate v/as 
 vested in the head of the family during his life, no remainder could vest 
 in the children, and so the promise to the children and the wife amounts 
 to nothing but a delusion. 
 
 If this idea of the condition " that the head of the family should not re- 
 move" must be performed before any estate can take effect, and vest either 
 in the head of the Indian family for his life, or in the childi^n in remain- 
 der; and if it be also true that this condition that the head of the family 
 should not remove was not limited in its duration to the period in which 
 the census v/a-s expected to have been taken, and did not cease when the 
 census v/as dispensed with by the satisfactory adjustment in lieu of the 
 census, but continued to operate as prohibiting a removal during the life of 
 the head of the family, and so no estate was vested until that prohibitory 
 condition should be performed and fulfilled, then indeed it would thence 
 follow as a necessary consequence that the last proviso in this 8th article, 
 *' that the land which may be reserved under this article be deducted 
 from the amount which has been ceded under the first and second articles 
 of this treaty," could not be executed until all the heads of families so re- 
 gistered for reservations were all dead, or had forfeited the reservations by 
 removal; and so the fifth article relative to the lands to be given by the 
 United States in exchange, acre for acre, must have remained unexecuted 
 and suspended, to await such contingencies relative to the deduction of land 
 which may be reserved. 
 
 Such absurd consequence would result necessarily from the doctrine of 
 the Attorney General, that " it was but a covenant to give M^hen the condi- 
 tions were performed," " and no estate was created if the head of the fam- 
 ily removed from the premises and abandoned the same." 
 
 The radical error in the Attorney General's opinion consists in not un- 
 
Mis. No, 8. 69 
 
 derstanding the removal prohibited as being a removal to the Cherokee na- 
 tion west on the Arkansas, and the prohibition as of temporary and limited 
 duration connected with the census alluded to in article 3, and as ceasing 
 as soon as the proportional partition between the Cherokees east and the 
 Cherokees west was adjusted according to the terms of the treaty of 1819. 
 
 Your memorialists most respectfully suggest, and protest, that an Attorney 
 General of the United States is not a proper commissioner under the 17th 
 article of the treaty of New Echota. His official duties as the retained law 
 officer, to argue and defend for the government, begets habits of thinking 
 in favor of the government and against all claims upon the treasury, which 
 render him unfit for an arbitrator and commissioner under that treaty. 
 From his position as a member of the cabinet, of which the Secretary of 
 War is also a member, whose office and seeming authority haie been used in 
 all the erroneous instructions to the commissioners, and from his associa- 
 tion officially with the accounting officers of the several departments, liable, 
 through the heads of the departments, to be called on for his opinions upon 
 matters to the heads of the departments referred by the various subordinate 
 officers^ and especially referred by the accounting officers, whose code of- 
 ethics and known rule of action in modern times used and practised 
 (with some few honorable exceptions) requires all claims against the gov- 
 ernment to be rejected, if possibly they may, in whole or in part, by formal, 
 technical, finical objections — the Attorney General, by such his position 
 and associations, is liable to imbibe the esprit du corps. 
 
 That the Attorney General shall be a commissioner under the treaty ex 
 officio, and solely by his commission of Attorney General, held at the plea- 
 sure of the President, does not comport with the sense and spirit of the 
 treaty. An imipire between dissenting commissioners is not an office pro- 
 vided for by the treaty of New Echota. It is (as your memorialists are ad- 
 vised and do most respectfully suggest) an unadvised interpolation of the 
 , treaty; a corruption of the text; by which the just rights of your memorial- 
 ists have been cast into the whirlpool of Executive influence, and lost in 
 its vast profundity. 
 
 It is true that four boards of commissioners have been appointed under 
 the treaty of 1835-'36. That four boards have been appointed; that such 
 long vacations between the breaking up of the sittings of this and that 
 board and the sittings of their successors, and such long vacations taken 
 by the last board; that so many interruptions to the sittings of the court of 
 commissioners have happened, are matters in nowise attributable to the 
 Cherokees. They had no art nor part in the appointment of the commis- 
 sioners, nor in defining the tenures of office expressed in their commis- 
 sions, nor in the breakmg up of their sittings. Those interruptions and 
 delays have been grievous to the Cherokees, and in violation of the spirit 
 of the treaty of New Echota. 
 
 Your memorialists feel and know that impartial justice, according to the 
 terms of the treaties, has not been administered to them. A powerful in- 
 fluence against them has been constantly exerted through the instrumen- 
 tality of the office of Indian affairs, acting in the name and authority of 
 the War Department. Witness the various erroneous instructions issued to 
 every board of commissioners, yet not made known to the claimants, but 
 concealed until after the mischiefs of such secret instructions had been 
 effected; witness the decisions so palpably wrong which have foHowed; 
 witness the refusal of the Commissioner of Indian Affairs to sufier the 
 
70 Mis. No. 8. 
 
 counsel of the claimants to inspect the records of the decisions, and the 
 causes assigned for refusal; witness the tenure of office expressed in all 
 the ■cmmissions under the treaty. 
 
 Your me Borialists have been greatly disappointed because of the lack 
 of independence, qualifications, and fitness of the majority of the commis- 
 sioners who have from time to time been appointed. The duties and func- 
 tions of adjudicating between the government of the United States, its ma- 
 jesty, power, wealth, patronage, and influence, of the orie party, and the 
 down-stricken Cherokees of the other party, required and merited men of 
 a high order of intellect and acquirements, experience, weight of character, 
 and independence, who should have scorned the proffered leading-strings 
 of the Commissioner of Indian Affairs and of the Department of War. 
 
 Your memorialists are sensible that these, their complaints, have been 
 already protracted to very great length; but the errors of the various in- 
 structions secretly issued from the office of Indian affairs required answers 
 and refutations. The grievances of your memoriaUsts are great, running 
 through a long series of years of sufferings and endurance, in which their 
 •oppressions have been numberless, covering them like the rising flood and 
 pressing them like the weight of waters down. Although the Congress, 
 by act of 2d July, 1836, appropriated $4,-500,000, the amount stipulated to 
 be paid for the lands ceded in the first article of the treaty of 1835, as re- 
 duced by the sum of ,'$500,000, mentioned in the second article, and did, 
 in the same act, appropriate $600,000 for removals and spoliations, accord- 
 ing to the third article of the supplement of 1836; and did also, by act of 
 12th June, I S38, appropriate $1,047,067 in addition, " for all the objects 
 in the said third article of the supplement;" yet, no part of the sum of 
 four million five hundred thousand dollars has as yet been distributed per 
 capita among the Cherokees, according to the 15th article of the said treaty 
 of 1835; and by means of the interruptions to the commission stipulated 
 in the 17th article of that treaty, the claims for spoliations, damages, com- 
 pensations for reservations and pre emptions, &c., as stipulated in the va- 
 rious original and supplemental articles of said treaty of lS35-'36, have 
 not been fairly and impartially adjudicated and paid, but have been delayed, 
 obstructed, and frustrated by the means and wrongs before alluded to, but 
 yet not fully told, long as this memorial may seem to those who have not 
 felt nor been conversant with the wrongs which have been done to the 
 Cherokees, contrary to the faith of the treaties. 
 
 Your memorialists, therefore, pray that the Congress of the United 
 States will be pleased to cause the instructions which have been from time 
 to time issued from the War Department and office of Indian affairs, to the 
 commissioners appointed under the 17th article of the said treaty of New 
 Echota, to be called for and examined by a committee, with power to send 
 for persons and papers, or in such manner as to your honorable body shall 
 seem fit: 
 
 T.iat the original records of the decisions of the said commissioners may 
 ■ be called for, with the causes assigned by the Commissioner of Indian Af- 
 fairs for refusing to permit the records of those decisions to be inspected by 
 the counsel tor the claimants; and that the decisions may be examined by 
 a-coiimittee, and by the counsel for the claimants: 
 
 Tiiat a new board of commissioners under the said seventeenth article 
 of the treaty may be instituted; that the tenure of office of said commis- 
 sioners may comport with said treaty and the constitution of the Unite^d 
 
Mis. No. 8. 71 
 
 States, and not be dependant upon the will and pleasure of the President; 
 that said board of commissioners be untrammelled by the instructions 
 aforementioned which have been issued from the Department of War and 
 office of Indian affairs, and free to hear applications for new trials and re- 
 hearings in cases which have been heretofore decided adve/sely to the 
 claimants; and to grant the new trials and rehearings, if to the board of 
 commissioners it shall seem, in their discretion, necessary and proper to 
 the attainment of justice and the right of the case; so that the faith of the 
 treaties and the public faith and honor of the government of the United 
 States may be vindicated and preserved inviolate. 
 
 And, finally, your memorialists most respectfully and earnestly invoke 
 the attention of the Congress of the United States to the wrongs and griev- 
 ances hereinbefore mentioned, and pray for such relief and redress as to 
 the wisdom and justice of the Congress shall seem apt and proper. 
 
 December 21, 1847. 
 
 PRESTON STARRITT, 
 jPor himself and divers other claimants. 
 
 JOHN F. GILLESPY, 
 
 Attorney and agent of Thomas Davis, son of Abraham Davis, 
 Philips^ children, I-yos-Tosh^s children, Oo-loocha^s son 
 Ahama, Betsy Walker, and of forty other Cherokee claimants. 
 
 JOHNSON K. ROGERS, 
 
 Fhr himself, and as attorney in fact for other Cherokee claimants. 
 
 ' ANDREW TAYLOR, 
 
 By his attorney, P. Starritt. 
 
m.. 
 
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