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 ■'SBin Congress, 
 Is^ Session. 
 
 SENATE. 
 
 Mis. Doc. 
 No. 94. 
 
 IN THE SENATE OF THE UNITED STATES. 
 
 FEBRtJART 2, 1857. — Referred to the Committee on Claims. 
 December 18, 1857. — Referred to the Committee on Claims. 
 
 The Court of Claims submitted the following 
 REPORT. 
 
 fPo the honorable the Senate and House of Representatives of the United 
 States in Congress assembled : 
 
 ;^s!§ The Court of Claims respectfully presents the following documents 
 
 i!iil;:;iil|i!^.3 the report in the case of 
 
 J. K, EOaERS vs, THE UNITED STATES. 
 
 1. The petition of the claimant, 
 
 2. Claimant's brief. 
 
 3. Solicitor's brief. 
 
 4. Opinion of the Court. 
 
 5. Claimant's second petition, filed by leave of Court. 
 8. Arguments of claimant and his counsels. 
 
 7. Solicitor's brief on second petition, 
 
 8. Opinion of the Court adverse to the claim. 
 
 By order of the Court of Claims. 
 
 In testimony whereof, I have hereunto set my hand and affixed the 
 -| seal of said Court at Washington, this second day of February, 
 • ®-J A. D, 1857. 
 
 SAM'L H. HUNTINGTON, 
 
 Chief Clerk Court of Claims. 
 
 y-X'^.$:\ 
 
 ih the Honorable Judges of the Court of Claims: 
 
 The petition of J. K. Rogers, for himself and in behalf of Chero- 
 kees residing in States east of the Mississippi, numbering 2,133 per- 
 sons, according to the census taken by the Indian department in 
 1851, respectfully showeth : That your petitioner and said Cherokees, 
 by the treaty of 1835 and supplement thereto, are entitled to their 
 proportionate share per capita of $704,947 16 over and above the sum 
 of |9 14,026 13, found due as per statement of the accounting officers 
 
 V 
 
 V. 
 
 ^•v 
 
 1//S 
 
 % 
 
^ J. K ROGERS. 
 
 of the treasury and the settlement made by Congress in 1851, in pur- 
 suance of the principles established by the treaty of August, 1846. 
 
 This claim is based principally on the 12th and 15th articles of 
 the treaty of 1835, and amounts in the aggregate to $92,625 19. 
 $5,000,000 was given to the Cherokees east for their lands and pos- 
 sessions, and $600,000 was given in lieu of reservations, spoliations, 
 pre-emptions, removal, and all claims against the government of the 
 United States, not otherwise expressly provided for, and any expendi- 
 ture made out of the $5^000,000, in payment of these items, was a 
 misapplication of the fund, and the United States was bound to make 
 it good. That the fund was applied in part for these purposes, is a 
 fact that cannot be controverted or denied. Kemoval and spoliations 
 amounted to a much larger sum, whilst reservations, pre-emptions, 
 spoliations, salaries of government agents, and other incidental ex- 
 penses incurred in the execution of the treaty, were charged to the 
 $5,000,000 iund. In 1838 Congress made a further appropriation of 
 $1,047,067, in full for all objects specified in the third supplemental 
 article of the treaty of 1835 between the United States and the Chero- 
 kees; and for the further object of aiding in the subsistence of the 
 Indians for one year after their removal west, provided that no part 
 of said money shall be deducted from the $5,000,000 stipulated to be 
 paid to said tribe of Indians by said treaty. 
 
 The report of the accounting officers of the treasury, prepared in 
 obedience to a resolution of Congress, ^hows that removal and sub- 
 sistence alone amounted to the enormous sum of $2,952,196 26, a 
 sum greater by $1,305,129 26 than the $600,000, and the sum of 
 $1,047,06*7 appropriated by the act of June 12, 1838. This excess of 
 $1,305,129 26 was paid out of, and deducted from the $5,000,000 
 fund, in violation of the treaty of 1835 and proviso of said act. In 
 consequence of these, and other extravagant and improper expendi- 
 tures taken from the $5,000,000, it was found that the balance left 
 for per capita distribution was scarcely worth demanding. These 
 facts were brought to the notice of Congress in 1842, and the Senate 
 and House of Representatives passed resolutions clothing their re- 
 spective committees on Indian affairs with power to send for persons 
 and palmers. The Senate committee did not act, inasmuch as it was 
 thought the investigation belonged more appropriately to the House. 
 The House committee commenced the investigation, and Mr. Harris, 
 of Virginia, made a report in part in 1842. At the following session 
 it was again resumed, and Mr. Cooper, of Pennsylvania, chairman, 
 reported the facts obtained by the investigation to the House, (House 
 doc. No. — .) 
 
 No further action was taken by Congress on the subject until after 
 the negotiation of the treaty of 1846. One of the principal objects of 
 this treaty was to settle the difficulties which had for a considerable 
 time existed between the difierent portions of the people, constituting 
 and recognized as the Cherokee nation of Indians, and also to settle 
 certain claims that existed on the part of the Cherokee nation, and 
 portions of the Cherokee people, against the United States. The 
 Ross, or national party, claiming all moneys due the Cherokees, and 
 subject to the per capita division under the treaty of 1835, and the 
 
J. K. ROGERS. 3 
 
 treaty party claiming indemnity for losses incurred in consequence of 
 the treaty of 1835, while the old settlers claimed indemnity from the 
 United States for permitting them to be robbed of their country, and 
 despoiled of their governm<=nt by the Cherokees emigrating under 
 the treaty of 1835. To settle these difficulties and claims, and pro- 
 vide compensation to the old settlers for the undivided interest which 
 the United States regarded them as owing in the country east of the 
 Mississippi, under the equitable operation of the treaty of 1828, was 
 the object of the treaty of 1846. 
 
 Articles 3 and 9 of said treaty establishes the basis of settlement 
 with the Cherokee emigration under the treaty of 1835. Article 4 
 specifies the mode and manner of settlement with the old settler 
 Cherokees. The duty of stating the accounts according to the prin- 
 ciples of the treaty of 1846^ was committed by joint resolution of 
 Congress of the Tth of August, 1848, to the Second Auditor and 
 Second Comptroller of the Treasury. The result of their labors is 
 presented in their report of December 3, 1849; and on the 8th of Au- 
 gust, 1850, Mr. Sebastian, from the Committee on Indian Affairs, 
 made a report to the Senate, adopting in part the report of said ac- 
 counting officers. They make a balance due the Cherokee nation 
 
 of $627,683 95 
 
 To this the committee, acting as umpire, added for in- 
 cidental expenses connected with the removal 96,999 42 
 
 For subsistence unpaid, or rather overcharged 189,422 76 
 
 Making in the aggregate the sum of. 914,026 13 
 
 due the eastern Cherokees, according to the principles of the treaty 
 of 1846. 
 
 The committee, after deducting all proper charges from the 
 $5,600,000, according to the basis of the 4th article of the treaty of 
 1846, leave a balance of $1,571,346 55, and allowed a sum equal to 
 one-third of this balance to the old settlers for their interest in the 
 Cherokee country east, being $523,782 18; making a difference of 
 $657,320 40 in favor of the Cherokees under the treaty of 1835, over 
 and above the $914,026 13 declared to be due them under the treaty 
 of 1846. To this balance of $1,571,346 55 must be added $22,212 76, 
 the amount charged by Senate committee for expenses of Cherokee 
 committee, which was improperly deducted from the $5,000,000 fund, 
 it not being one of the items specified in the loth article of the treaty 
 of 1835, and also $25,414 09, an amount greater than the $600,000 
 provided for removal and spoliations in the third supplemental article 
 and im])roperly deducted ; which sums being added to the $657,320 40, 
 would make $704,647 16 due the Cherokees under the treaty of 1835 ; 
 of which the Cherokees residing in States east would be entitled to 
 their proportionate share ; the Cherokees west being concluded by the 
 treaty of 1846. Divide this sum equally between 16,231, this being 
 the number of Cherokees both east and west by the census of 1851, 
 under which the $914,026 13 was paid per capita, and it would give 
 each person $43 43 per head. The old settler Cherokees were not 
 included in this census, neither did they participate in the division. 
 The Cherokees emigrating under the treaty of 1835 have no further 
 
4 J K ROGERS. 
 
 claim to per ca'pita, being concluded by the treaty of 1846, and tlie 
 final settlement of February 27, 1851 ; and the number of Cherokee® 
 east, by th^census aforesaid, who are entitled to per capita, being 
 2,133 at the rate of |43 43 per head, would give them in the aggregate, 
 as their proportionate share of this amount still due, the sum of 
 |92,625 19, on which they claim interest at the rate of 5 per cent, 
 per annum from the 12th day of June, 1838, until paid. The report 
 of the committee was concurred in by the Senate, and Congress made 
 an appropriation to carry it into effect. 
 
 This claim, as stated, is based principally on the 12th and 15tli 
 articles of the treaty of 1835 and supplement thereto, and any im- 
 proper deductions made from the |5, 000, 000, under the operations of 
 the treaty of 1846 was not only a violation of the treaty of 1835, but 
 was also an infringement of the rights of said Cherokees existing 
 under it, as re-guaranteed by the 10th article of the treaty of 1846, 
 which does not in any manner take away or abridge any rights or 
 claims which the Cherokees (then) residing in States east of the 
 Mississippi river had, or may have, under the treaty of 1835, and 
 supplementary thereto. This is a clear afB.rraation of all their rights 
 and claims under the treaty of 1835-'36, by the treaty of 1846, and 
 your petitioners are therefore, under a strict construction of the treaty 
 of 1835, entitled to a much larger sum than that now claimed ; but 
 they have thought it best under the circumstances to ask only for their 
 proportionate share of the balance found due by the committee and 
 Congress under the treaty of 1835-'36, after deducting all proper 
 charges from the $5,600,000 over and above the $914,026 13 found 
 due under the treaty of 1846, with an addition of the two items as 
 already stated. 
 
 Your petitioner, at the 2d session of the 32d Congress, memorialized 
 Congress in behalf of this claim, which was presented in the House 
 of Representatives and referred to the Committee on Indian Affairs. 
 Mr. Caldwell, of North Carolina, prepared a report in favor of principal 
 and interest, which was unanimously adopted by the committee, but 
 the committee not being called for reports during that session, it was 
 not submitted to the House. 
 
 At the 1st session of the 33d Congress this memorial was again 
 presented in the House of Representatives, and again referred to the 
 Committee on Indian Affairs, and on the 20th of March, 1854, Mr„ 
 Grow, from that committee, uiade a report in favor of the principal, 
 with interest from December 14, 1852, to time of payment. He also 
 offered an amendment directing its payment to the general Indian 
 appropriation bill, which passed the Committee of the Whole by a 
 considerable majority, but was lost in the House. 
 
 This memorial was afterwards presented in the Senate, and referred 
 to the Committee on Indian Affairs, by whom the report of Mr. Grow 
 was adopted ; and Mr. Sebastin artbrded a similar amendment to that 
 of Mr. Grow to the general Indian appropriation bill, which was 
 passed unanimously by the Senate. The bill was then returned with 
 this amendment, and the House refused to concur. The Senate insisted 
 on their amendment and asked for a committee of conference, where it 
 was finally lost. 
 
J. K. ROGERS. 5 
 
 It is proper here to state, that on the 5th of June, 1854^ Mr. Houston, 
 chairman of the Committee of Waj's and Means, addressed a letter to 
 the Secretary of the Interior, asking his opinion as to the merits of the 
 •claim. The letter was referred to the Commissioner of Indian Affairs 
 for a report, and on the 20th of the same month the Secretary trans- 
 mitted the report of the Commissioner, in wliich he declined to express 
 an opiDion_, inasmuch as it might be considered discourteous to the 
 Senate and the Indian committee of the House, who had already passed 
 judgment on the claim. 
 
 At the 2d session of the same Congress a supplemental memorial 
 was presented in the House and referred. The Committee on Indian 
 Affairs, under a joint rule, resumed the consideration of the claim as 
 unfinished business, when the report of Mr. Grow was again adopted, 
 and he instructed to present it to the House, a copy of which is here- 
 with submitted. The memorials referred to are hereunto annexed, and 
 prayed to be made part of this petition. 
 
 J. K. ROGERS, 
 In behalf of himself and the Ckerokees in States east. 
 
 ss. 
 
 County of Washington, 
 District of Columbia, 
 
 On this seventeenth day of July, eighteen hundred and fifty-five, 
 personally appeared before me, one of the justices of the peace in and 
 for the county aforesaid, the above named Johnson K. Rogers, one of 
 the claimants, and made oath upon the Holy Evangely of Almighty 
 God that the facts as stated in the above petition are true, to the best 
 of his kiiowledge and belief. 
 
 J. D. CLARK, J. P. 
 
 Srief of authorities and ay^guments relied on to sustain the claim, of J. 
 K. Rogers and 2,133 Gherokees, referred to in 'petition, &c. 
 
 Articles op Treaty of 1835. 
 
 Article 1 gives $5,000,000 for the lands and possessions of the 
 Cherokee nation east of the Mississippi, and again submits to the 
 Senate the question of an allowance for spoliations. — (Stat, at Large, 
 vol. 7, p. 475.) 
 
 Art. 12. "■ Those individuals and 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 States where 
 they reside, and such as are qualified to take care of themselves and 
 their property, shall be entitled to receive their due portion of all the 
 personal benefits accruing under this treaty for their claims, improve- 
 ments, and per capita, as soon as an appropriation is made for this 
 treaty."— (Same vol., p. 483.) 
 
 Art. 15. "■ It is expressly understood and agreed between the 
 parties to this treaty, that after deducting the amount which shall 
 be actually expended for the payment for improvements, ferries, claims 
 
b J. K. EOGERS 
 
 for spoliations, removal, subsistence, and dehts, and claims upon the 
 Cherokee nation, and for the additional quantity of lands and goods 
 for the poorer classes of Cherokees, and the several sums to be invested 
 for the general national funds, provided for in the several articles of 
 this treaty, the balance, whatever the same may be, shall be equally 
 divided between all the people belonging to the Cherokee nation east, 
 according to the census just completed." — (Same vol., p. 4S5.) 
 
 The above are the two articles, as stated in the petition, on which 
 the claim is principally based, and I have italicised the words claims 
 for spoliations, and removal, as marks to indicate that any expendi- 
 tuie made for these purposes out of the $5,000,000 was without 
 authority of law, and an abridgment of the rights and claims of the 
 Cherokees residing in States east of the Mississippi under the treaty ; 
 in proof of which I quote 2d and 3d articles of the supplement : 
 
 AiiT. 2. "Whereas the Cherokee people have supposed that the 
 
 sum of $5,000,000, fixed by the Senate in their resolution of day 
 
 of March, 1835, as the value of the Cherokee lands and possessions 
 east of the Mississippi river, was not intended to include the amount 
 which may be required to remove them, nor the value of certain claims 
 which many of their people had against citizens of the United States, 
 which suggestion has been confirmed by the opinion expressed to the 
 War Department by some of the senators who voted upon the ques- 
 tion ; and whereas the President is willing that this subject should be 
 referred to the Senate for their consideration, and if it was not intended 
 by the Senate that the above mentioned sum of $5,000,000 should 
 include the objects herein specified, that in that case such further 
 provision should be made therefor as might appear to the Senate to be 
 just. 
 
 " Akt 3. It is therefore agreed that the sum of $600,000 shall be, 
 and the same is hereby, allowed to the Cherokee people to include the 
 expense of their removal, and all claims of every nature and descrip- 
 tion against the government of the United States, not herein other- 
 wise expressly provided for, and to be in lieu of the said reservations 
 and pre-emptions, and of the sum of $300,000 for spoliations described 
 in the first article of the above mentioned treaty. This sum of $600,000 
 shall be applied and distributed agreeably to the provisions of said 
 treaty, and any surplus which may remain after removal and payment 
 of the claims so ascertained, shall be turned over and belong to the 
 education fund." — (Stat, at Large, vol. 7, p. 488-9.) 
 
 The supplement is part and parcel of the treaty, and, although 
 removal and spoliations are enumerated among the items that were to 
 be deducted by the 15th article from the $5,000,000, yet it is clear 
 they were abrogated by the 2d and 3d articles of the supplement, and 
 constituted a charge against the United States and not the Cherokees ; 
 whilst it is equally clear that reservations, pre-emptions, and expenses 
 of Cherokee committee, not enumerated in said article, constituted no 
 charge against said fund. With regard to the one year's subsistence, 
 it is doubtful, from the phraseology of the 8th and 15th articles, 
 whether this exj)enditure was to be borne by the United States or 
 deducted from the $5, 000; 000. — (See article 8, same vol., p. 482.) 
 
 It would seem, however, that removal and subsistence were placed 
 
J. K. ROGERS. 7 
 
 on the same footing, and the United States agree and stipulate to per- 
 form the duty — whether in the capacity of agent of the Cherokee nation 
 or as guardian of their funds, does not appear, neither is it material to 
 the point. The question at issue is, who was to foot the bill? If the 
 Cherokees, no more than $33 33 a head for subsistence could be deducted 
 from their fund; if the United States, she was her own agent, and the 
 Cherokees had no authority to question her right to pay more. As to 
 the exp mse ot removal, that question was settled, and but for subsist- 
 ence not being stricken out of the loth article by the 3d supplement, 
 there could be no doubt that it constituted a charge against the United 
 States. Indeed, the question was of such doubtful import, that the 
 House of Representatives adopted a resolution inquiring of the Sec- 
 retary of War how much would be required, and on the 25th of May, 
 1838, Mr. Poinsett replies to this resolution by letter, in which he 
 submitted to the House estimates ; conseijuently, Congress made an 
 appropriation for subsistence and all other objects specified in the 3d 
 supplement, in the following language : 
 
 " That the sum of $1,047,067 be appropriated, out of any money 
 in the treasury not otherwise appropriated, in full for all objects 
 specified in the 3d article of the treaty of 1835 between the United 
 States and the Cherokees ; and for the further object of aiding in the 
 subsistence of the Indians for one year after their removal west : 
 Provided, That no part of the said sum of money shall be deducted 
 from the |5, 000, 000 stipulated to be paid to said tribe of Indians by 
 said treaty." — (Statutes at Large, vol. 5, p. 242.) 
 
 The causes which led to the passage of the above act are fully set 
 forth in the report of the Senate Committee on Indian Affairs of 
 August 8, 1850. Speaking of the objects of the act, the committee 
 say : " Here was a clear legislative affirmation of the terms offered 
 by the Indians and acceded to by the Secretary of War. It was a 
 new contract with the Ross party, outside of the treaty, or rather a 
 new consideration offered to abide by its terms. The Secretary of 
 War agrees to consider the expenses of removal and suhbistence as in- 
 tended by the treaty of 1835 to be borne by the United States, and 
 Congress affirm his act by providing that no part of the $1,047,067 
 should be taken from the treaty fund. It was made auxiliary to the 
 $600,000 provided for in the third supplemental article — a fund pro- 
 vided for removal and other expenditures independent of the treaty, and 
 in full tor all these objects." — (G-row's report, pages 7, 8, 9 and 10.) 
 
 Admitting that subsistence was intended to be borne by the Chero- 
 kees, and estimating the v/hole number at 18,335, the precise number 
 according to the census taken by the United Slates in 1835, and 
 allowing the amount stipulated to be paid by the 8th article, namely, 
 $33 33 a head, it would not only amount to $611,105 55, which sum 
 was deducted by the committee from the $5,600,000, in their settle- 
 ment with the "old settlers" in 1850, (pages 5 and 6 of Grow's re- 
 port,) and the Cherokees in States east have made no claim to any part 
 of it in their petition. Without, therefore, taking subsistence into ac- 
 count, and considering it as a charge on the $5,000,000 fund, it would 
 then leave an expenditure, according to the report of the Second 
 Comptroller and Second Auditor, for spoliations and removal alone of 
 
8 J. K. EOGEES. 
 
 |2, 952, 196 26. The amount provided by tlie United States appli- 
 cable to the liquidation and payment of this expenditure was $600,000, 
 named in the 3d supplement, and 11,047,067 appropriated by the act 
 of June 12, 1838^ making in the aggregate $1,647,067, which, being 
 deducted from $2,952,196 26, leaves a balance expended and unpro- 
 vided for by any appropriation of $1,305,129 26, but which was liqui- 
 dated and paid by the tJnited States as trustee out of the $5,000,000 
 fund, in violation of the proviso of the act of 1838 and 2d and 3d 
 articles of the supplemental treaty of 1836. Credit, therefore, this 
 balance with $611,105 55 for one year's subsistence, and it would 
 leave a remainder of $694,024 71. To this add the expense of Chero- 
 kee committee named in the 12th article of the treaty of 1835, and 
 sum over-charged for spoliations, and it would leave a balance con- 
 siderably larger than that claimed in the petition. Take either this 
 statement or the one made by the Committee on Indian Affairs of the 
 Senate, and there is no escape from the conclusion that there is a 
 larger balance yet due the Cherokees residing in States east under the 
 treaty of 1835-36. 
 
 It is now necessary to examine the treaty of 1846, with a view of 
 ascertaining how far those rights and claims were abridged by and 
 under its provisions. 
 
 Art. 10. "It is expressly agreed that nothing in the foregoing 
 treaty contained shall be so construed as in any manner to take away 
 or abridge any rights or claims which the Cherokees now residing in 
 States east of the Mississippi river had, or may have under the treaty 
 of 1835 and the supplement thereto." — (Statutes at Large, vol. 9, p. 
 875.) 
 
 Could language be more explicit ? The article speaks for itself, and 
 comment vv^ould only serve to mistify and complicate its meaning. 
 
 Aet. 4, same vol., page 872~'3, establishes the mode and man- 
 ner of settlement with the " old settlers " or " western Cherokees ;" 
 and article 12^ same vol., p. 876, at the instance of the delegation of 
 the "old settlers," proposes "that the question shall be submitted 
 with this treaty to the decision of the Senate of the United States, of 
 what portion, if any, of the expenditures made for removal, subsistence, 
 and spoliations, under the treaty of 1835, is properly and legally 
 chargeable to the $5,000,000 fund." 
 
 The amount found due the " old settlers" by Congress is minutely 
 and specifically stated in Senator Sebastian's report. — (Grow's report, 
 pages 5 and 6.) My views on the subject are expressed at length in 
 supplemental memorial, pages 3 and 4, under head of article 4, treaty 
 of 1846. 
 
 The mode and manner of settlement with the Cherokees emigrating 
 under the treaty of 1835, is specified in the following articles of the 
 treaty of 1846. 
 
 Article 3 provides that certain claims therein enumerated and paid 
 out of the $5,000,000 fund, shall be reimbursed by the United States. 
 — (Statutes at Large, vol. 9, p. 872.) 
 
 Article 9 provides that "a fair and just settlement of all moneys due 
 the Cherokees, and subject to per capita division under the treaty of 
 1835, which said settlement shall exhibit all money properly expended 
 
J K. KOGEES. 9 
 
 under said treaty/' (as altered and amended by tliis article,) in the 
 following words: '"'The aggregate of which said several sums shall be 
 deducted from the sum of $6,647,067, and the balance thus found to 
 be due shall be paid over per capita, in equal amounts, to all those 
 individuals, heads of families, or their legal representatives, entitled 
 to receive the same under the treaty of 1835 and supplement of 1836, 
 being all those Cherokees residing east at the date of said treaty and 
 supplement thereto." — (Same vol., p. 875.) 
 
 The alterations and amendments made in the treaty of 1 835-' 36 by 
 this article, as above indicated, consists in this : The gross sum of 
 $5,600,000 provided by the treaty of 1835-'36 is changed and enlarged 
 by the ninth article of the treaty of 1846 to $6,647,067, and removal, 
 spoliations, subsistence, and other improper expenditures in unlimited 
 amounts are to be deducted therefrom; whereas, by the treaty of 1835 
 and supplement of 1836, removal and spoliations were not deductable 
 from the $5,000,000 fund, and subsistence, if deductable at all, to a 
 limited extent only. — (See Sebastian's report, pages 5 and 6 of Grow's 
 report, and also report of Second Comptroller and Second Auditor, 
 pages 11 and 12, G-row's report.) 
 
 In my memorial to Congress of January 12, 1853, pages 2, 3, 4, and 
 5, I have endeavored to show how and in what j)articulars the treaty 
 of 1835 and supplement of 1836 was altered and amended by the treaty 
 of 1846, also supplemental memorial, pages 5, 6, 7, and 8. 
 
 I omitted to state one fact in my petition which I now take the 
 liberty of doing here; it is this: During the term of the 2d session of 
 the 33d Congress, whilst my claim was before the Committee on Indian 
 Affairs, and not in the possession of the House, the chairman of the 
 Committee of Ways and Means thought proper to ask the Commissioner 
 of Indian Affairs (whether verbally or in writing does not appear) for 
 his opinion as to its merits. As to the action of Congress on this claim, 
 I refer to the Journals of the Senate and House, pages — , 
 
 On the 11th of January, 1855, the Commissioner says : I have 
 examined, in compliance with your request, the claim of "J. K. 
 Kogers, for himself and the Cherokees in States east of the Mississippi 
 river," for additional per capita claimed to be due them by express 
 provisions of the treaty of 1835-'36 and 1846. " My opinion is that 
 there is no good foundation for the claim, if the treaty of 1846 with 
 the Cherokees, and the appropriation made by Congress, approved 
 27th February, 1851, are to be regarded as an exposition of the inten- 
 tion of the parties in interest." 
 
 This is a singular mode of expressing an opinion ; in other words, 
 it is what is generally termed " begging the question," and but for 
 the word "■z/," one would be at a loss to comprehend its meaning and 
 intention. What is it? Why, says the Commissioner, if the treaty 
 of 1846 and the act of 1851 " are to be regarded as an exposition of 
 the intentions of the parties in interest, there is no good foundation 
 for the claim." And visa versa: ''If" the treaty and act of Congress 
 were not "regarded as an exposition of the intentions of the parties in 
 interest," would it not be a concession that there was a good founda- 
 tion for the claim ? Such would be the only reasonable inference to 
 be derived from this official rule of logic. In construing this opinion. 
 
10 ' J. K. ROGERS. 
 
 much, if not everything, depends on the use made of the word "if." 
 ''II" it is admitted that the premises assumed b}^ the Commissioner 
 is correct^ it necessarily follows his conclusions arc equally so. I am 
 not prepared to make such concessions or admissions. No statement 
 made in the memorials of the parties warrants such construction. On 
 the contrary, they state that the claim is "due to them by express 
 provisions of the treaties of 1835-'36 and 1846," and the Commis- 
 sioner so states the case, but failed to give the quotation marks ; and 
 then goes on to give his opinion with his if's, as though " the parties 
 in interest" had admitted that the treaty of 1846 and act of 1851 was 
 "an exposition of their intention." What right or authority had he 
 to draw such inferences? Certainly not from the memorials, either of 
 the treaties, or act of 1851. Again, he says in the next paragraph : 
 
 " This claim is predicated on the mode of settlement indicated by 
 the Second Comptroller and Second Auditor, under the joint resolution 
 of the Senate and House of Representatives of the United States of the 
 Yth August, 1848, and a report of the Committee on Indian Affairs of 
 the Senate of the United States of August 8, 1850." 
 
 This is not the fact ; the claim is not now nor never was predicated 
 on either of the reports indicated by the Commissioner. It was, and 
 now is, predicated on the 12th and 15th articles of the treaty of 1835 
 and 2d and 3d articles of the supplement and guarantee of the 10th 
 article of the treaty of 1846 ; and the reports of the accounting officers 
 of the treasury and Committee on Indian Affairs of the Senate were 
 referred to and quoted in the memorials as evidence to prove that the 
 Cherokees in States east were entitled to a larger sum than that found 
 due by the settlement of 1851, under the 9tli article of the treaty of 
 1846 ; and I confess I have not as yet seen anything in the opinion of 
 the Commissioner to prove the contrary. I shall only notice one or 
 two other positions assumed in the opinion. At page 2, paragraphs 
 2 and 3 : 
 
 "The memorialists contend that the 9th article of the treaty of 
 1846, providing for a just settlement of all moneys due the Cherokees, 
 and subject to the per capita division under the treaty of 1835-'36, 
 does not apply to them, on the ground that that article refers to the 
 Cherokee people west only." 
 
 The memorialists contend for no such thing. What they have and 
 do contend for is this : That said 9th article changed and altered very 
 materially the 15th article of the treaty of 1835 and supplement thereto, 
 and that a much smaller amount was iound due under it than that 
 which was properly and legitimately due under the articles of the 
 treaty of 1835-'36. They also contended, on a former occasion, for 
 their proportionate share ^er capita of the amount that was found due 
 by the settlement of 1851, according to the principles of said 9th arti- 
 cle, and what is more, they got it, through the "proviso of the act of 
 1851, and the interposition of the opinion of the Attorney General of 
 the United States, which forever put to rest the question so ^^ seriously 
 mooted" at the time by the Indian Office and Ross delegation, and 
 referred to in paragraph 4, page 2, of the Commissioner's opinion. 
 Of this fact no one is or should be better acquainted than the Com- 
 missioner of Indian Affairs, and yet, in the 3d paragraph, it would 
 
J. K. ROGERS. 11 
 
 seem that he ''cannot comprehend the propriety of the objection, when 
 it appears that the Cherokees, so called, residing in States east of the 
 Mississippi received their per capita distribution arising under the 
 treaty of 1846, and the conditions imposed by the act of appropriation 
 approved 27th February^ 1851, as in full of all claims under the treaty 
 of 1835-'36, and the supplemental treaty of 1846, without protesting 
 at the time of the receipt of the money that it was not in full, as indi- 
 cated in the receipt." 
 
 Did not the Commissioner know at the writing of his opinion^ and 
 noiD, that the treaty of 1846 was made exclusively with the different 
 factions of the Cherokee nation west, and that it never had any bind- 
 ing force or controlling power over the Cherokees (then) residing in 
 States east, who were not parties to it ? They were not constituents 
 of the treaty-making power of the Cherokee nation, and required no 
 new treaty. Their rights and claims were already secure under the 
 treaty of 1835-'36, and they only insisted that they should not be 
 curtailed or disturbed by the treaty of 1846, hence the insertion of the 
 10th article of that treaty. 
 
 The Commissioner places great stress and importance on the act of 
 1851, and "receipts executed by the Cherokee Indians resident in 
 States east of the Mississippi." What is tbi act of 1851, and what 
 are its requirements ? I quote it : 
 
 "For payment to the Cherokee nation the sum of seven hundred 
 and twenty-four thousand six hundred and three dollars and thirty- 
 seven cents, and interest on the above sum at the rate of ^\e per 
 centum per annum, from the 12th day of June, 1838, until paid, shall 
 be paid to them out of any money in the treasury not otherwise ap- 
 propriated, but no interest shall be paid after the first of April, 1851, 
 if any portion of the money is then left undrawn by the said Chero- 
 kees : Provided, Iwioever, That the sum now appropriated shall be 
 in full satisfaction and final settlement of all claims and demands 
 whatever of the Cherokee nation against the United States, under any 
 treaty heretofore made with the Cherokees. And the said Cherokee 
 nation shall, on the payment of said sura of money, execute and de- 
 liver to the United States a full and final discharge for all claims and 
 demands whatever on the United States, except for such annuities in 
 money or specific articles of property as the United States may be 
 bound by any treaty to pay to said Cherokee nation, and except, also, 
 such moneys and lands, if any, as the United States may hold in trust 
 for said Cherokees : And jjrovided, further, That the money appro- 
 priated in this item shall be paid in strict conformity with the treaty 
 with said Indians of 6th August, 1846." — (Statutes at Large, vol. 9, 
 pp. 572-'3.) 
 
 It must, therefore, be perceived that the requirements of the act are 
 simply these : 1st. The money shall be paid to the Cherokee nation. 
 2d. The Cherokee nation shall, on the payment of said sum of money, 
 execute and deliver to the United States a full and final discharge for 
 all claims and demands whatsoever on the United States, except, &c. 
 If the act had stopped here, then a receipt in full from the Cherokee 
 nat{o7t for any further demands against the United States might have 
 been successfully urged by the Commissioner against said nation ; but 
 
12 • J. K ROGERS. 
 
 the proviso to the act was not only fatal to' the Cherokee nation 
 receiving and receipting ior the money, but is equally so to the re- 
 ceipts of the Cherokees residing in States east, produced by the Com- 
 missioner against any further demands they may have against the 
 United States. 
 
 Before the act was consummated in Congress it was discovered that 
 the money jii'oposed to be appropriated by it, by express terms of the 
 treaties of 1835-'36 and of 1846, did not belong to the Cherokee na- 
 tion, and the act without the proviso would be a violation of said 
 treaties. In consequence of this " the Cherokee Indians resident in 
 States east of the Mississippi" did not hesitate to give their '' receipts 
 in full of" their " proportionate shares of the money appropriated tor 
 the benefit of the Cherokees by the acts of Congress of 1850 and 1851," 
 knowing, as they did at the signing of the receipts, the effect of the 
 proviso. The rule of construction is, " where the proviso of a statute 
 is directly repugnant to the purview, the proviso shall stand and be a 
 repeal of the purview, as it speaks the last intention of the makers." — 
 (Opinions of Attorneys G-eneral, vol. 5, pp. 330, 331 ; also, same vol., 
 p. 383.) The act of 1850, referred to in the opinion of the Commis- 
 sioner, makes an appropriation for the exclusive benefit of the "old 
 settlers," and I cannot t-ee the propriety of its induction in connexion 
 with the receipts of Cherokees in States east. 
 
 With regard to the objections urged against the claim in the House 
 of Representatives, they will be found with the answers and authori- 
 ties referred to, and quoted in supplemental memorial, pages 1, 2, 
 and 3. 
 
 After all, it seems to me the whole question of the right of Cherokees 
 residing in States east to additional j9er capita resolves itself into this: 
 1. Were "all extravagant and improper expenditures" excluded by 
 the Senate in their settlement with the " old settler " Cherokees in 
 1850, and were all the " investments and expenditures chargeable 
 upon the $5,600,000, and particularly enumerated in the fifteenth 
 article of the treaty of 1835, "properly" and "legally" deducted from 
 said aggregate sum, by which it was ascertained that $1,571,346 55 
 would be " left for per capita distribution among the Cherokees emi- 
 grating under the treaty of 1835," or rather the Cherokees included 
 in the census of 1835 ? And 2, Did the fourth article of the treaty of 
 1846 require the United States to do more, or less, for the " old settler 
 Cherokees" in making said charges to, and deductions from the 
 $5,600,000, than was absolutely required to be done for the eastern 
 Cherokees by the fifteenth article of the treaty of 1835-'36, with the 
 two exceptions stated elsewhere ? If yea, then the question is settled, 
 by the tenth article of the treaty of 1846 — the settlement of 1851, 
 made in pursuance of the ninth article of said treaty, to the contrary 
 notwithstanding. 
 
 One other question remains to be considered, and that is the ques- 
 tion of interest. 
 
 The Committee on Indian Affairs of the House of Representatives 
 reported in favor of interest from December 14, 1852, to time of pay- 
 ment, upon the supposition, as I was informed, that the claimants had 
 not asked for the principal previous to that date.- — (G-row's report, 
 
J. K, ROGERS. 13 
 
 page 2.) This was an error. If the mere asking for the principal 
 was all that was requisite to confer a right to interest^ it will be found 
 that a demand was made for the principal at a much earlier period. 
 As long ago as July or August, 1838, the Cherokee committee pro- 
 tested against the Scott and Ross contract for the removal of the 
 Cherokees on several grounds ; one of which was that it would di- 
 minish the ^6?' capita then more than due to all the Cherokees included 
 in the census of 1835. Other applications were made at various 
 times. — (Harris' report, House Doc. No. 1098, vol. 5 ; also Cooper's 
 report, 27th Congress, 3d session. House Doc. No. 288.) 
 
 The claimants, hov/ever, base their right to interest on what they 
 conceive to be higher and better ground, viz., the twelfth article of 
 the treaty of 1835. Speaking of the binding obligations of treaties, 
 the Committee on Indian Affairs of the Senate say : "■ It has been the 
 uniform practice of this government to pay and demand interest in all 
 transactions with foreign governments, which the Indian tribes have 
 always been said to be, both by the Supreme Court and all other 
 branches of our government, in all matters of treaty or contract." — 
 (G-row's report, page 10, paragraph 2.) " In the case of Wocester vs. 
 the State of Georgia," the Supreme Court says : '' The words 'treaty' 
 and 'nation' are words of our own language, selected in our diplomatic 
 and legislative proceedings, by ourselves, having each a definite and 
 well understood meaning. We have applied them to Indians, as we 
 have applied them to other nations of the earth. They are applicable 
 to all in the same sense." 
 
 I have said all that I have to say on the subject of interest in sup- 
 plemental memorial, pages 8 and 9. 
 
 J. K. ROGERS. 
 
 Washistgton, July 30, 1855. 
 
 m TEE COUET OF CLiilMS.— No. 133. 
 
 On the Petition of J. K. Rogers and other Cherokees. 
 Brief of the United States Solicitor. 
 
 This is a claim for |92,625 19, with interest at five per cent, from 
 the 12th June, 1838, till paid, making now upwards of $170,000. 
 
 By the first article of the treaty of 1835 with the Cherokees, it was 
 agreed by the United States to pay them |5, 000^000 for their lands, 
 &c. 
 
 The 12th article recognized the Cherokees who did not remove west 
 with the nation, but became citizens of the eastern States, as entitled 
 to their due portion of all the benefits of the treaty ; and, among other 
 things, to participate in the per capita distribution contemplated by 
 the 15th article. 
 
 The removal effected by the treaties of 1835 and 1836, and the act 
 of June 12, 1838, led to diflSculties between the new emigrants and 
 that portion of the Cherokee nation which had been settled in the west 
 prior to 1835. These difficulties, Avith disputes between the govern- 
 ment and the Cherokees as to what was chargeable to the five millions 
 
14 J. K. EOGEES- 
 
 fund and what should he paid hy the United States, led to the treatj 
 of 1846, in which provision is made for quieting all disputes among 
 themselves and with the government. In pursuance of these pro- 
 visions, an account was taken by the Auditor and Comptroller, which 
 was adopted, with some modifications, and appropriations were made 
 to carry it into effect, the last of which is in these words : 
 
 " In payment to the Cherokee nation, the sum of seven hundred 
 and twenty-four thousand six hundred and three dollars and thirty- 
 seven cents, and interest on the above sum at the rate of five per 
 centum per annum from 12th June, 1838, until paid, shall be paid to 
 them out of any money in the treasury not otherwise appropriated ; 
 but no interest shall be paid after the 1st April, 1851, if any portion 
 of the money is then left undrawn by the said Cherokees : Provided, 
 hoioever, That the sum now appropriated shall be in full satisfaction 
 and a final settlement of all claims and demands whatsoever of the 
 Cherokee nation against the United States^, under any treaty heretofore 
 made with the Cherokees. And the said Cherokee nation shall, on 
 payment of said sum of money, execute and deliver to the United 
 States a full and final discharge for all claims and demands what- 
 soever on the United States, except for such annuities in money or 
 specific articles of property as the United Si-ates may be bound by any 
 treaty to pay to said Cherokee nation ; and except, also, such moneys 
 and lands, if any, as the United States may hold in trust for said Chero- 
 kees ; And provided, further-, That the said money appropriated in 
 this item shall be paid in strict conformity with the treaty with said 
 Indians of 6th August, 1846." 
 
 See act of 27th February, 1851. 
 
 These claimants received their due proportion of this appropriation, 
 and executed a receipt in full, according to the requirements of the 
 act. 
 
 But it is argued, by the petitioners, that they are not estopped from 
 going behind this settlement to dispute the basis on which it was 
 made : 1. Because, by the 10th article of the treaty of 1846, " it is 
 expressly agreed, that nothing in the foregoing treaty contained shall 
 be so construed as in any manner to take away or abridge any rights 
 or claims which the Cherokees, now residing in States east of the Mis- 
 sissippi river, had or may have under the treaty of 1835 and the sup- 
 plement thereto," 2. Because the act in question only provides for 
 receipts of this character by the Cherokee nation, and does not require 
 them from the individuals who have become citizens of the States. 
 3. That the proviso is repugnant to the purview of the statute, &c. 
 (See pp. 8, 9 of the petitioner's brief.) 
 
 1. Has the treaty of 1846 ^' taken away or abridged any right" 
 which the Cherokees, citizens of States, had under the treaty of 1835 
 and the supplement thereto. It is contended that the balance ascer- 
 tained by the accounting officers, under the resolution of 7th August, 
 1848, was a balance ascertained professedly " in accordance with the 
 principles of the treaty of 1846, and not in accordance with the treaty 
 of 1835-'36 ;" that the principles thus adopted in the settlement did 
 operate to take away and abridge the rights in question. The first 
 modification of the treaty of 1835-'36, effected by that of 1846, cited in 
 support of this allegation, is, that whereas by the said treaty of 1835-'36, 
 
J K ROGERS. ^O 
 
 tlie aggregate sum from which deductions were to be made, according 
 to the ISth article of said treaty, was the sum of five millions six hun- 
 dred thousand dollars ; by the treaty of 1846, the aggregate sum from 
 which the deductions specified in the 9th article were made, was 
 $6,647^007. The aggregate sum being greater by the last than by 
 the first treaty, would authorize the contrary inference from that drawn 
 by the claimants. 
 
 The second allegation is, that the deductioas from the aggregate 
 sum authorized by the treaty of 1846 were greater than those author- 
 ized by the treaty of 1835 ; and it is said that the treaty of 1846 admits 
 of deductions from said aggregate sum for spoliations and subsistence, 
 in unlimited sums, and removal may be charged variously, at the rate 
 of $20, $30, $40, $65, $95, and $103 25 per head; whereas by the 
 treaty of ]835-'36, "removal, andoneyear's subsistence after removal, 
 is limited at $53 33 per head." — (See 8th article, treaty 1835-'36.) 
 " So, is the sum limited out of which spoliations are to be paid." This 
 is claimed to result from the 3d supplemental article. 
 
 These allegations would involve the necessity of comparing the lan- 
 guage of the treaties, did not the petitioner admit on the same page 
 in which he makes them, (see page 5 of his argument 12th January, 
 1853,) that, " on turning to the fifteenth article, id e find removal, subsist- 
 ence, and claims for spoliaticns embraced in the enumerated items to be 
 deducted from the five millions ;" and though he insists that the third 
 article of the supplement so modifies the fifteen'h, that neither 
 removal or spoliation can be legitimately charged to the five millions 
 fund, it is ])erfectly plain, on reference to said supplemental article, 
 that it merely created an addition to the fund without in the least 
 aflecting the enumeration of the fifteenth article. 
 
 It will be found that, so far from its being true that the treaty of 
 1846 took away or abridged any right under the treaty of 1835, it 
 greatly enlarged and extended these rights. 
 
 By reference to the third article of the treaty of 1846, it will be 
 perceived that the United States abandons many charges which the 
 accounting officers had supposed legitimately chargeable against the 
 fund. Mr. Sebastian's report, confirmed by the Senate, abandons 
 another large sum which he admits was clearly chargeable to that 
 fund under the treaty ; and hence, when the settlement is spoken of 
 as being made in pursuance of the principles of the treaty of 1846, it 
 is meant only that the concessions made in the treaty of 1846 are 
 carried out in the settlement. 
 
 On first taking up this case for investigation I was much confused 
 by the mingling of discussions in respect to the basis of settlement 
 with the " old settlers," with that adopted for the eastern Cherokees. 
 The same thing, I am satisfied, has happened to those who investi- 
 gated the subject as members of the committees of the House and 
 Senate. But, in point of fact, the basis on which the settlement was 
 made with the old settlers, established by the fourth article of the 
 treaty of 1846, has no connexion with, and affords no light whatever 
 upon the present claim. The considerations upon which the old set- 
 tlers were allowed the half million voted to them in 1850 are set 
 forth in Mr. Sebastian's report of that year. The amount was arrived 
 at by a process indicated in the fourth article of the treaty of 1846 
 
16 J K. ROGERS. 
 
 The settlement witli the eastern Cherokees was arrived at by another 
 process — that stated in articles three and nine of said treaty. Great 
 concessions were made in these last articles to the eastern Cherokees, 
 and greater still in the other article to the old settlers. The petitioners 
 seem to think that they have the right to claim according to rule 
 which concedes the most, although no part of the reasons which 
 induced the United States to make the additional concessions to the 
 old settlers is applicable to the petitioners. It is on the basis of the 
 settlement with the old settlers that the committee of the House 
 reported favorably on this claim. The action of the Senate (see 
 Cong. Globe, vol. 28, part 2, p. 1285) proceeded on a ground that 
 is not pretended in this petition, but is expressly contradicted. It is, 
 that Cherokees east did not get their part of the appropriation of 1851, 
 but that the sum here claimed vjas paid by mistake to the western 
 Cherokees ! whereas these claimants admit distinctly that they received 
 their full proportion of the $914,026 13^ but wish to be heard now to 
 say that they were entitled to more. 
 
 I subjoin the accounts rendered by the accounting officers on the two 
 different bases above referred to, to be found at pages 6 and 11 of 
 Grow's report. 
 
 1st, The account laith the old settlers is asfolloius : 
 
 This fund, provided by the treaty of 1835, consisted of |5, 600,000 00 
 
 From which are to be deducted, under the treaty of 
 1846, (fourth article,) the sums chargeable under 
 the fifteenth article of the treaty of 1835, which, 
 according to the report of the accounting officers, 
 will stand thus : 
 
 For improvements $1,540,572 27 
 
 For ferries 159,572 12 
 
 For spoliations „... 264,894 09 
 
 For removal and subsistence of 18,026 
 
 Indians, at |53 33| per head... 961,386 66 
 
 Debts and claims upon the Cherokee 
 nation, viz : 
 
 National debts (10th art.) |18,062 06 
 
 Claims of United States 
 
 citizens (10th article)... 61,073 49 
 
 Cherokee committee (12th 
 
 article) 22,212 76 
 
 . 101,348 31 
 
 Amount allowed United States for ad- 
 ditional quantity of land ceded 500,000 00 
 
 Amount invested as general fund of 
 
 the nation 500,880 00 
 
 Making in the aggregate the sum of. 4,028,653 45 
 
 Which, being deducted from the treaty fund of 
 $5,600,000, leaves the residuum contemplated by 
 the fourth article of the treaty of 1846, of 1,571,346 55 
 
J. K. ROGERS. 17 
 
 Of whicli amount one-third is to be allowed to the western Chero- 
 kees for their interest in the Cherokee country east, being the sura of 
 1523,782 18. 
 
 2cL The account loith the Cherokees east is thus stated : 
 
 There has been paid — 
 
 For improvements, the sum of |1, 540, 572 27 
 
 For ferries, the sum of 159,572 12 
 
 For spoliations, the sum of 264,894 09 
 
 For removal and subsistence, and commutation there- 
 for, including $2,765 84 expended for goods for the 
 poorer classes of Cherokees, as mentioned in the 
 15th article of the treaty of 1835-'36; and including, 
 also, necessary incidental expenses of enrolling 
 agents, conductors, commissaries, medical attend- 
 ance, supplies, &-C., the sum of..., 2,952,196 26 
 
 For debts and claims upon the Cherokee nation, the 
 
 sum of 101,348 31 
 
 For the additional quantity of land ceded to said na- 
 tion, the sum of 500,000 00 
 
 For amount invested as the general fund of the nation, 
 
 the sum of.... 500,880 00 
 
 The "aggregate of which general sums" is 6,019,463 05 
 
 And which, being deducted from the sum of 6,647,067 00 
 
 Agreeably to the directions of the ninth article of the 
 
 treaty of 1846, leaves a balance of , 627,603 95 
 
 due to the Cherokee nation. 
 
 The item which causes the balance for distribution in the last account 
 to fall below the balance in the first, is that for removal and subsistence. 
 This item in the last account, as stated on the face of the account, 
 except the sum of $96,999 42, which was stricken out by the kSenate, 
 is in accordance with the treaty of 1835, under which these petitioners 
 claim. The corresponding item in the first account was made up in 
 accordance with the express stipulation with the old settlers, in the4th 
 article of the treaty of 1846, and upon considerations in which these 
 claimants had no part whatever. 
 
 2. By reference to vol. 24, p. 2152, vol. 22, p. 1334, of Congres- 
 sional Grlobe, the court will perceive that the whole Senate, including 
 Mr. Sebastian, who has been throughout the ardent friend of the In- 
 dians, concurred in saying that the treaty of 1846, and the appropria- 
 tion under it. were to be a finality in settling with the Cherokees. 
 Some of the senators thought there ought to be further or additional 
 allowances, but all concurred that this was to be the last; and it will be 
 perceived by tlie debate in 1852, that even the vote of a few thousand 
 dollars to supply the per capita to those Indians who had failed to be 
 present to receive their portion of the ajjpropriation of 1851 was de- 
 nied, because there had been a final adjustment of this matter, and 
 Mis. Doc. 94 2 
 
18 J. K. EOGERS, 
 
 the Senate would not agree to re-open it, even for so small a snm and 
 upon sucli grounds. Indeed, the whole proceedings show that it was 
 the settled purpose of the Senate to close the business then and forever, 
 and the only question was, how and by what language it should he 
 done; and it was suggested by a member of the Committee on Indian 
 Affairs, that the best mode to effect it was to say, in theappropriationy 
 that it was in full and final, not with respect to.the Cherokee nation as 
 a nation, but with respect to the Cherokee nation as individuals, for it 
 was with respect to individuals only they were legislating. The same 
 is true of the action of the House, (see vol. 23, p. 603, Congressional 
 Globe.) The ground taken in the brief that the receipt provided for by 
 the law was from the nation as a corporate body, and therefore such a 
 receipt from individuals was not required, overlooks not only the obvi- 
 ous sense in which the words "Cherokee nation" are used in the act^ 
 but the whole intent of the act. 
 
 It is perfectly obvious that the words Cherokee nation in this appro- 
 priation are used as synonymous with all the Cherokees. 
 
 3. As respects the third proposition, that the last proviso was repug- 
 nant to the purview, and so must stand, I do not see how that aids the 
 argument for the petitioners. That proviso has the precise effect on 
 the construction of the act which I contend for above, and puts it be- 
 yond doubt, that in speaking of the Cherokee nation, all the individuals 
 of the nation, and not the nation in its corporate capacity was meant. 
 It will be seen by the debates, that it was intended that the money 
 should be paid to the individuals; and it was not to leave any doubt about? 
 construction to the department that this proviso was appended. This 
 was morever required, as a compliance with both the treaties, which 
 stipulated that, after certain payments out of the five millions fund^ the 
 balance was to be distributed per capita by the government of the 
 United States. The government, after a great expense and delay, 
 finally adjusted the account, added interest on all the arrearages, and 
 made the distribution, and took a receipt from these claimants, ex- 
 pressing that it v/asin full. Everything, almost, that was claimed by 
 the intelligent and active agents who represented the Indians was al- 
 lowed ; and many of the senators, among others Mr. Hunter, the 
 Chairman of the Senate's Committee on Finance, expressly saying that 
 much was allovv^ed to which they had no title, but, as it was to be a 
 final settlement, he would withdraw all opposition, and let the appro- 
 priation pass. Under such circumstances, and especially in view of 
 the complicated nature of the business, it was right that the govern- 
 ment should demand a receipt in full, and have an express recogni- 
 tion that this was to be a final adjustment when the money was paid. 
 Having given this, the petitioners ought not to be heard. 
 - I refer the Court, for an able exposition on this subject, and an un- 
 answerable argument against the claim, to the speech of Mr. Houston^ 
 of Alabama, delivered in the House of Representatives on the 24th 
 March, 1854, reported in part 1st of 28th volume Congressional Globe, 
 page 738, 
 
 M. BLAIE. 
 
J. K. ROGERS. 19 
 
 OPINION OF JUDGE SCARBUEGH. 
 
 J. K. Rogers vs. The United States. 
 
 The following opinion (in the case of J. K. Rogers vs. The United 
 States) was delivered by Judge Scarburgh on November 29, 1855 : 
 
 The petitioner belongs to the class of Cherokees contemplated in the 
 twelfth article of the treaty of 1835-'36. That article is as follows : 
 "Those individuals and 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 States where they reside, 
 and such as are qualified to take care of themselves and their property, 
 shall be entitled to receive their due portion of all the personal benefits 
 accruing under this treaty for their claims, improvements, and per 
 capita, as soon as an appropriation is made for this treaty." Having 
 availed himself of the privilege of becoming a citizen of the State 
 where he resided, he no longer remained an ''individual" of the 
 Cherokee nation, and thereupon became entitled to a portion of what- 
 ever might remain to be distributed per cajnta, as provided for in the 
 treaty, after deducting from the whole fund such sums of money as 
 were properly chargeable thereto. 
 
 At the period when the treaty of 1846 was concluded, the petitioner 
 had ceased to be one of the Cherokee nation, and, not being represented 
 by any of the parties to that treaty, he was not bound by it. The 
 tenth article expressly declares that nothing in the treaty contained 
 shall " take away or abridge any rights or claims which the Cherokees 
 now residing in the States east of the Mississippi river had, or may 
 have, under the treaty of 1835 and the supplement thereto." The 
 ^Tst pivviso in the act of 1851 must be construed with reference to the 
 treaty of 1846, and is properly applicable, as in terms it is declared 
 to be, only to the Cherokee naHon, or to the individuals then composing 
 that nation. To extend the construction of that proviso so as to em- 
 brace the petitioner would not only be inconsistent with its words, but 
 do violence to the spirit of the tenth article of the treaty of 1846. If, 
 therefore, the settlement, which took place after the treaty of 1846, 
 be unjust or erroneous in any respect, the petitioner, notwithstanding 
 he has received his due proportion of the amount paid under the act 
 of 1851, is still not barred from showing the error or from availing 
 himself of any demand to which its correction may justly entitle him. 
 
 The petitioner specifies the following as the errors of which he com- 
 plains in that settlement: (1) that the United States received credit 
 for the actual expense of subsistence, instead of at the rate of thirty- 
 three dollars thirty-three cents for each Cherokee subsisted ; (2) that 
 the United States received credit for the actual expense of removal, 
 instead of twenty dollars for each Cherokee removed ; (3) that the 
 United States were not entitled to credit on account of both spoliations 
 and subsistence for more than six hundred thousand dollars, but they 
 received credit for a much larger sum ; and (4) that credit was im- 
 properly given to the United States for the expenses of the committee 
 appointed under the twelfth article of the treaty. This is not the 
 
20 • J. K EOGERS. 
 
 precise form of specification of errors adopted by the petitioner, but it 
 substantially embraces, as we understand the petition, his whole com- 
 plaint. 
 
 By the first article of the treaty of 1835, the Cherokee nation ceded 
 their lands east of the Mississippi river, and released all their claims 
 for spoliati ns to the United States, for the sum of five millions of 
 dollars, to be expended, paid, and invested in the manner stipulated 
 and agreed upon in the subsequent articles. It was agreed to be sub- 
 mitted to the Senate whether, in their offer of five millions of dollars 
 to the Cherokee Indians for all their lands and possessions east of the 
 Mississippi river, claims for spoliations were included ; and if they 
 were not, then an additional sum of three hundred thousand dollars 
 was to be allowed for that purpose. The award of the Senate is to be 
 found in the supplementary articles. 
 
 The second and third supplementary articles are as follows : 
 " Article 2. Whereas the Cherokee people have supposed that the 
 sum of five millions of dollars fixed by the Senate in their resolution 
 
 of day of March, 1835, as the value of the Cherokee lands and 
 
 possessions east of the Mississippi river, was not intended to include 
 the amount which may be required to remove them, nor the value of 
 certain claims which many of their people had against citizens of the 
 United States, which suggestion has been confirmed by the opinion 
 expressed to the War Department by some of the senators who voted 
 upon the question ; and whereas the President is willing that this 
 subject should be referred to the Senate for their consideration, and if 
 it was not intended by the Senate that the above mentioned sum of 
 five millions of dollars should include the objects herein specified, that 
 in that case such iurther provision should be made therefor as might 
 appear to the Senate to be just. 
 
 " Article 3. It is, therefore, agreed that the sum of six hundred 
 thousand dollars shall be, and the same is hereby, allowed to the 
 Cherokee people, to include the expense of their removal, and all 
 claims, of every nature and description, against the government of the 
 United States not herein otherwise expressly provided for, and to be 
 in lieu of the said reservations and pre-emptions, and of the sum of 
 three hundred thousand dollars for spoliations described in the 1st 
 article of the above mentioned treaty. This sum of six hundred 
 thousand dollars shall be applied and distributed agreeably to the 
 provisions of the said treaty, and any surplus which may remain after 
 removal and payment of the claims so ascertained shall be turned over 
 and belong to the education fund." 
 
 So much of the 8th article of the treaty of 1835 as it is necessary 
 now to consider is in these words : "■ The United States also agree 
 and stipulate to remove the Cherokees to their new homes and to sub- 
 sist them one year after their arrival there, and that a sufficient num- 
 ber of steamboats and baggage wagons shall be furnished to remove 
 them comfortably, and so as not to endanger their health, and that a 
 physician, well supplied with medicines, shall accompany each detach- 
 ment of emigrants removed by the government. Such persons and 
 families as, in the opinion of the emigrating agent, are capable of 
 subsisting and removing themselves, shall be permitted to do so ; and 
 
J. K, ROGERS 21 
 
 they shall be allowed in full for all claims for the same twenty dollars 
 for each member of their family, and, in lieu of their one year's rations, 
 they shall be paid the sum of thirty-three dollars and thirty-three 
 cents, if they prefer it." 
 
 So much of the fifteenth article of the treaty as it is important now 
 to notice is as follows : " It is expressly understood and agreed between 
 the parties to this treaty that, after deducting the amount which shall 
 be actually expended for the payment for improvement, ferries, claims 
 for spoliations, removal, subsistence, and debts and claims upon the 
 Cherokee nation, and for the additional quantity of lauds and goods 
 for the poorer class of Cherokees, and the several sums to be invested 
 for the general national funds, provided for in the several articles of 
 this treaty, the balance, whatever the same may be, shall be equally 
 divided between all the people belonging to the Cherokee nation east, 
 according to the census just completed." 
 
 The twelfth article of the treaty provides for the appointment of a 
 committee for certain purposes therein mentioned. 
 
 It is to be observed that, by the eighth article of the treaty, two 
 modes of removal and subsistence are provided for : the one to be 
 effected by the United States, and the other by such persons and 
 families as, in the opinion of the emigrating agent, were capable of 
 subsisting and removing themselves. Those persons and families were 
 to be permitted to remove and subsist themselves, and in that event 
 each of them was to receive for removal twenty dollars, and for sub- 
 sistence thirty-three dollars and thirty-three cents. The effect of this 
 article was to create an obligation on the part of the United States to 
 remove and subsist all the Cherokees, except such as might elect and 
 be permitted, in the manner prescribed, to remove and subsist them- 
 selves. And it is obvious, from the express language of the eighth 
 article, that the amount to be expended for removal and subsistence 
 was limited only when the latter method of removal and subsistence 
 should be adopted. This article contains no provision as to the party 
 by whom the expense of removal and subsistence was to be borne, or 
 the fund out of which it was to be paid. 
 
 The fifteenth article of the treaty expressly declares 'H-hat, after 
 deducting the amount which shall be actually expended for the pay- 
 ment for * * * spoliations, removal, subsistence," &c., the 
 '' balance, whatever the same may be, shall I e equally divided between 
 all the people belonging to the Cherokee nation east, according to the 
 census just completed." This includes, in express terms, as well 
 removal and subsistence as spoliations, and there is no room for doubt 
 or uncertainty, and nothing left to construction in regard to them. 
 On the contrary, it is clear, beyond dispute or cavil, that the expense 
 of removal and subsistence, as well as of spoliation, was to be borne 
 by the treaty fund ; and it is equally clear, as we have already seen, 
 that, if the removal and subsistence were effected and provided for by 
 the United States, then the amount actually exj^ended therefor ; or if 
 by the Cherokees themselves, then the sum of fifty-three dollars and 
 thirty-threo cents per head was to be deducted from that fund. These 
 views so obviously result from the express language of the treaty that 
 it seems to us that there can be no just ground for a difference of 
 opinion in regard to them. 
 
2^ • J. K EOGERS. 
 
 But, notwithstanding the language of the treaty was thus plain and 
 unequivocal, if the parties have concurred in a different interpretation 
 of it, that interpretation ought to he adopted. This consideration 
 renders it eminently proper that we should review the acts of the par- 
 ties in relation to the treaty. 
 
 Before the treaty of 1835 was ratified hy the Senate, a difficulty in 
 regard to its construction arose^ and it seems to have been, to a great 
 extent, the occasion of the supplementary articles. We find it stated 
 in the second supplementary article that the Cherokee people had sup- 
 posed that the sum of five millions of dollars, mentioned in the first 
 article of the treaty, "was not intended to include the cost of removal, 
 or the value of certain claims which many of their people had against 
 the citizens of the United States ;" hut there is no concession on the 
 part of the United States that the supposition of the Cherokee people 
 was well founded. The fact that it existed, not that it had any just 
 foundation, is stated as the reason why the suplementary article was 
 adopted. If it had been intended that the entire expense of removal 
 and spoliations was to be borne by the United States, there would, 
 as there should, have been a stipulation expressly so declaring. But, 
 instead of this, a certain sum to be paid by the United States for these 
 and other purposes is agreed upon and inserted in the treaty. To the 
 extent of that sum the United States became bound, but no further. 
 It may be said, and perhaps with justice, that this did not amount to 
 a concession of right on either side. It was doubtless supposed that 
 no further difficulty would arise. But, as regards the United States, 
 the most that can be justly urged is, that, in view of the impressions 
 of the Cherokees, they so far yielded to them as to agree to allow them 
 the additional sum of six hundred thousand dollars. There can be no 
 justice or propriety in saying that they either did or designed to do 
 more. On the contrary, the very fact that they limited the sum con- 
 clusively shows that they intended thereby to limit the extent of their 
 obligation. Such, it seems to us, is the obvious construction of the 
 supplementary articles. 
 
 Bat further difficulty arose. The treaty of 1835-'36 had been con- 
 cluded in opposition, it was said, to the will of a large majority of the 
 Cherokee nation. Tliis majority, under the counsels of John Ross, 
 had uniformly refused to recognize that treaty as obligatory upon 
 them, and had obstinately withstood all the efforts of the government 
 of the United States to induce them to adopt it or emigrate under its 
 provisions. In the meantime, within the period limited by the treaty, 
 most of what was called "the treaty party" had emigrated to the 
 west. Finally, the "Ross party," still adhering to the idea that they 
 were in no way bound by the treaty, made a proposition to the United 
 States "to release all claim to their country and emigrate for a named 
 sum of money, in connexion with other conditions, among which was 
 the stipulation that they should be allowed to take charge of their own 
 emigration, and that the United States should pay the expense of" it. 
 But this proposition was never acceded to, either by treaty or legisla- 
 tive enactment. The Secretary of War, in reply to it, said : "If it 
 be desired by the Cherokee nation that their own agents should have 
 the charge of their emigration, their wishes will be complied with. 
 
J. K. KOGERS. 23 
 
 and instructions he given to the commanding general in the Cherokee 
 countrj' to enter into arrangements with them to that effect. With 
 regard to the expense of this operation, which you ask may he defrayed 
 by the United States, in the opinion of the undersigned the request 
 ought to be granted, and an application for such further sum as may 
 be required for this purpose shall be made to Congress." But the 
 Secretary of War had no authority to act in the premises, except so 
 far as he might do so in execution of the treaty. And the only action 
 which Congress took upon the subject was to pass the act of June 12, 
 1838, which is as follows : 
 
 " That the further sum of one million forty-seven thousand and 
 sixty-seven dollars be appropriated, out of any money in the treasury 
 not otherwise appropriated, in full for all objects specified in the third 
 article of the supplementary articles of the treaty of eighteen hun- 
 dred and thirty-five, between the United States and the Cherokee 
 Indians, and for the further object of aiding in the subsistence of said 
 Indians for one year after their removal west : Provided, That no 
 ])art of the said sum of money shall be deducted from the five millions 
 stipulat-ed to be paid to said tribe of Indians by said treaty : And pro- 
 vided, further, That the said Indians shall receive no benefit from the 
 said appropriation unless they shall complete their emigration within 
 such time as the President shall deem reasonable, and without 
 coercion on the part of the government." — (5 Stat, at Large, 242.) 
 
 The action of the Secretary of War was nothing more than a mere 
 offer, on the part of the United States, to execute, in good faith^ so 
 much of the eighth article of the treaty of 1835-'36 as provides that 
 such persons and families as, in the opinion of the emigration agent, 
 were capable of subsisting and removing themselves should be per- 
 mitted to do so ; and the act of Congress was a mere legislative ap- 
 propriation of one million forty-seven thousand and sixty-seven dol- 
 lars, to be applied to the purposes therein mentioned. It was 
 obviously consistent with the express terms of the eiglith article of the 
 treaty for the Secretary of War to permit the " Ross party," if they 
 could bring themselves within the provisions of that article, to remove 
 themselves. If they availed themselves of this permission, then it 
 followed, as a necessary consequence, that they could only be allowtd 
 for all claims for the same at the rate of twenty dollars for each 
 Cherokee so removed, for so the treaty expressly provides. But the 
 Secretary of War had no authority to say, so as thereby to bind the 
 United States, that the expense of their removal would be borne by 
 the United States, or that it would be paid otherwise than as the 
 treaty provided ; nor did he undertake to do so. He merely expressed 
 the opinion that the request of the Cherokee nation, that the expense 
 of tneir removal should be defrayed by the United States, ought to he 
 granted, and gave assurance that an application for such further sum 
 as might be required for that purpose should be made to Congress. 
 He complied with his engagement. The whole subject, with his esti- 
 mates made under a resolution of the House of Representatives, was 
 communicated by the President to Congress. Congress, however, did 
 not concur in the opinion which had been expressed by the Secretary 
 of War, but merely passed the act of June 12, 1838. In the passage 
 
24 • J. K. EOGEES. 
 
 of this act Congress seems to have been governed by the same policj 
 which characterized the supplementary aiticles. It was simply an 
 appropriation of money for the objects therein mentioned, but nothing 
 more. We do not pause to inquire whether this money was properly 
 applicable to any other objects than removal and subsistence. It is 
 not necessary for us to consider that point. 
 
 Before the expiration of the year eighteen hundred and thirty- 
 eight, the entire removal of the Cherokees to their new homes was 
 effected. In August, A. D. 1846, the treaty of that date was made, 
 but the petitioner, not being a party thereto, was not bound by it. 
 This we have already seen. He does not in any way found his claim 
 upon that treaty, but as he has, both in his petition and in argument^ 
 referred to it, and to the action of the Senate thereon, it is incumbent 
 upon us briefly to notice both. He correctly states that the third and 
 ninth articles of that treaty establish the basis of settlement with the 
 Cherokee emigration under the treaty of 1835. The ninth article, in 
 declaring what sums shall be deducted from the treaty fund, in 
 express terms includes all sums properly expended under the treaty 
 of 1835 for spoliation-, removal, and subsistence, and commutation 
 therefor. By the eleventh article, the question whether the amount 
 expended for subsistence was properly chargeable to the treaty fund 
 was submitted to the Senate. The Senate awarded that, under the 
 circumstances, the Cherokee nation were entitled to the sum of one 
 hundred and eighty-nine thousand four hundred and twenty-two dol- 
 lars and seventy-six cents for subsistence, being the difi'erence be- 
 tween the amount allowed by the act of June 12, 1838, and the 
 amount actually paid and expended by the United States, and which 
 excess was improperly charged to the treaty fund in the report of the 
 accounting officers of the treasury, and that interest at the rate of 
 five per cent, per annum should be allowed thereon from the twelfth 
 day of June, A. D. 1838, until paid. The substantial effect of this 
 award seems to be that by the act of June 12, 1838, the United 
 States provided for the payment of the sum of six hundred and 
 eleven thousand one hundred and five dollars and fifty-five cents, 
 part of the expenses of subsistence, and that the residue thereof — to 
 wit, the sum of one hundred and eighty-nine thousand four hundred 
 and twenty- two dollars and seventy-six cents — was not chargeable to 
 the treaty fund. It was professedly not founded upon the construc- 
 tion of the treaty, but upon the peculiar circumstances connected with 
 the transactions which had occurred between the " Koss party" and 
 the United States. It affords but little aid, therefore, in the investi- 
 gation of this case. 
 
 We have thus presented a brief review of the course pursued, as 
 well by the United States as the Cherokees, under the treaty of 
 1832-'36, and, as regards the questions now under consideration, it 
 presents not a single instance in which they have concurred in an inter- 
 pretation of that treaty different from that which, as we liave seen, 
 is authorized and required by its language, understood in its ordinary 
 sense. 
 
 It seems to us, therefore, that the sums expended for removal, sub- 
 sisience, and spoliations were properly chargeable to the treaty fund; 
 
J. K KOGEES. 25 
 
 that the sums actually expended therefor were to he deducted from 
 that fund, and that the expense of removal and subsistence was 
 limited, the one to twenty and the other to thirty-three dollars and 
 thirty-three cents, only in regard to such of the Cherokees as, under the 
 eighth article of the treaty, were allowed to remove and subsist them- 
 selves. 
 
 We come now to the fourth specification of error, which relates to 
 the committee appointed under the twelfth article of the treaty of 
 1835-"36. It seems to us that the expense of this committee was a 
 proper charge against the Cherokees. Although it Avas appointed by 
 the mutual agreement of the parties, yet it did not represent the United 
 States, or act in their behalf, or render any services for them. It was, 
 in the language of the treaty, "a committee on the part of the Chero- 
 kees'' appointed "to transact all business on the part of the Indians 
 which [might] arise in carrying into effect the provisions of [the] 
 treaty, and settling the same with the United States." 
 
 The United States, in concurring in its appointment, did nothing 
 more than agree to recognise it as the authorized agent of the Chero- 
 kees. As, then, it represented the Cherokees and acted for their 
 benefit — did their business alone — they alone should bear the expense 
 of it. Nothing short of an agreement on the part of the United States 
 to that effect could render them liable for it ; and we look in vain into 
 the treaty for any such agreement. The mere fact that the fitleenth 
 article does not contain a provision in regard to the expense of this 
 committee furnishes no ground whatever for the implication of the 
 liability of the United States for it. If it had been a committee on 
 the part of the United States to represent and act for them, then the 
 omisgion of any notice of it in the fifteenth article would be conclusive 
 to show their liability for the expense of it. But, as we have seen, 
 it was not a committee of that character. The United States, how- 
 ever, did defra}^ the expense of this committee, and they have been 
 reimbursed out of the treaty fund. But of this the Cherokees can 
 have no just ground of complaint; because, it being a proper charge 
 against them, they were liable for it, and being so liable, it was im- 
 material out of what fund belonging to them it was paid. 
 
 It is not alleged in the petition that the sums for which the United 
 States received credit in their settlement with the Cherokees for spo- 
 liations, removal, and subsistence were not actually and in good faith 
 expended. 
 
 We are, therefore, of the opinion that the facts set forth in the pe- 
 tition of the claimant do not furnish any ground for relief, and that 
 the taking of testimony in this case shall not be ordered. 
 
 Let a judgment be entered accordingly. 
 
 IN THE UNITED STATES COURT OF CLAIMS. 
 
 To the honorahle the Court of Claims of the United States of America: 
 
 Your ])etitioner, Johnson K. Rogers, by birth and blood a Chero- 
 kee Indian, and one of those persons of the Cherokee nation who 
 
2B J K ROGERS. 
 
 remained east of the river Mississippi after the making of the treaty 
 of 1835 between the United States and the Cherokee nation, and who 
 were commonly known as the "Eastern Cherokees," petitioning for 
 himself and for and on behalf of all other of said Eastern Cherokees, 
 entitled like and with himself to certain rights hereinafter set forth, 
 under the treaty of 1835, the supplement thereto of 1836, the act of 
 Congress of June 12, 1838, and the several decisions of the Senate of 
 the United States hereinafter mentioned ; by this his amended and 
 SUBSTITUTED petition, by leave of the Court filed in the place and 
 stead of the original, most respectfully shows and represents : 
 
 That at an early day, long prior to the year 1828, the United 
 States became desirous of purchasing the country owned and pos- 
 sessed by the Cherokee nation of Indians, east of the Mississippi river, 
 in the States of G-eorgia, North and South Carolina, Alabama, and 
 Tennessee, and of inducing said Indians to remove to and occupy a 
 new country west of the Mississippi. 
 
 That by article 7 of the treaty of July 2, 1791, (7 Stat, at Large, 
 39,) the United States had solemnly guarantied to the Cherokee na- 
 tion all tlieir lands not thereby ceded ; which solemn guarantee was 
 repeated by article 6 of the treaty of October 2, 1798. — (Id. G3.) 
 
 That prior to the year 1817, a portion of the Cherokee people emi- 
 grated to the western side of the Mississippi river, and selected and 
 received, in exchange for their lands east of that river, a country upon 
 the Arkansas and White rivers ; which exchange was effected by the 
 treaty of July 8. 1817, (Id. 156 ;) and by that treaty provision was 
 made for taking a census of those of the Cherokees who should deter- 
 mine to remain east of the Mississippi, and of those who had removed 
 or intended to remove ; and the United States agreed to give to the 
 latter as much land, west of the Mississippi, as they had received or 
 should receive from the nation east of the Mississippi, acre for acre, 
 as the just proportion due those who had removed or should remove, 
 agreeably to their numbers. And, by article 6, the United States 
 also bound themselves to give to every poor warrior who should emi- 
 grate, a rifle-gun and ammunition, a blanket and kettle, a beaver 
 trap ; to oAd in their removal, furnishing boats and provisions there- 
 for ; and to pay them the full value of all their improvements which 
 added real value to their lands. 
 
 That by the treaty of February 27, 1819, (Id. 195,) the United 
 States accepted a cession of certain lands by the Cherokees, as in full 
 for the lands assigned those who had removed, upon Arkansas and 
 White rivers ; and it was thereby agreed, that those who had emi- 
 grated, and who were afterwards called the "old settlers," were, in 
 number, one-third of the whole nation. 
 
 That by article 8 of the treaty of May 6, 1828, (Id 311,) made be- 
 tween these Western Cherokees and the United States, for settling the 
 boundaries of their country west of the Mississippi, it was agreed by 
 the United States, that to every head of a Cherokee family, then 
 residing in any State east of the Mississippi, who would remove west, 
 should be given a good rifle, a blanket, kettle, and five pounds of 
 tobacco, and to each member of his family a blanket ; and also a just 
 compensation for the* property he might abandon. And it was further 
 
J. K. ROGERS. 27 
 
 agreed, that the cost of the emigration of all such should be home hy the 
 United States, and good and suitable ways opened, and provisions pro- 
 cured for their comfort, accommodation, and support, by the way, 
 and 'provisions for tivelve months after their arrival at the agency ; and 
 $50 to every head of a family with four persons, who should emigrate 
 from Georgia, &c. 
 
 That this provision was continued in full force by the treaty (de- 
 clared supplementary) of February 14^ 1883, (Id. 414 ;) and by article 
 17 of the treaty of December 29, 1835, (Id. 486,) it was declared that 
 all stipulations in former treaties, not thereby annulled or superseded, 
 should continue in full force and virtue. 
 
 That in February, 1835, while the treaties of 1817 and 1828 re- 
 mained in full force, a delegation of the Eastern Cherokees, then in 
 Washington, proposed to sell to the United States the whole Cherokee 
 country, east of the Mississippi, for $20,000,000 ; the Indians to re- 
 move and subsist themselves, and the United States to pay their 
 claims for losses and spoliations, caused by the adjoining States and 
 their citizens. This proposition being deemed by the President to be 
 too extravagant, the Cherokee delegation proposed that the matter 
 should be submitted to the Senate for its sense u[)on the question ; 
 agreeing that they would, as individuals, abide by the award of the 
 Senate, and recommend it to their people. 
 
 That this proposition was accepted by the President, with a 
 declaration on his part that he was willing to go as far as the Senate 
 would ; and accordingly, the matter was submitted to the Senate for 
 its decision and award upon the question ; and thereupon the Senate 
 decided that "a sum not exceeding five millions of dollars should be 
 paid to the Qi\\exokeQlnA\2ix\s,, for all their lands and possessions e2i?,t 
 of the Mississippi river ;" and this award was communicated to the 
 Cherokee delegation by the Secretary of War, on the 6th day of 
 March, 1835 ; and he then offered (using the terms claims, and lands 
 and ^possessions, as convertible terms,) to treat with them for a cession 
 of all the claims of the Cherokees east of the Mississippi river, on 
 condition that the whole amount of the consideration should not 
 exceed the sum of $5,000,000. 
 
 That the delegation then requested to be informed whether that 
 sum was intended, as appeared from the letter of the award, to be the 
 consideration for the extinguishment of the Cherokee title to their 
 lands, and for their houses and improvements alone ; and whether the 
 United States would, in addition, pay the expenses of transportation 
 and subsistence in the removal of the Indians, according to the pro- 
 visions of the treaty of 1828 ; or whether the expenses of removal, 
 subsistence during removal, and subsistence for twelve months after 
 removal, and for blankets, guns, &c., were to be paid out of and 
 charged against the five millions of dollars. They said that it was 
 indispensable that they should be informed on this point, without which 
 they could not treat. 
 
 That to this the Secretary of War answered that the $5,000,000 
 would be in full for their entire cession, and tliat nothing more would 
 be paid for removal, or for any other i)urpose or object whatever. 
 And he added, " In giving to you the full value of your pi'ojDerty, the 
 
28 J. K. ROGERS. 
 
 United States coinply with all the demands of justice upon them. 
 And he informed them that thus the intercourse in writing between 
 them and him was closed. 
 
 That the President and Secretary of War then and always after- 
 wards admitted that the $5,000,000 was offered as the price of their 
 lands and po-tsessionf:, or possessory rights and claims to their lands 
 alone; hut claimed that the United States having thus agreed to pay 
 the full value of such lands or claims and possessory rights, the Che- 
 rokees had no claim on a7iy ground that the United States should also, 
 and in addition, pay their claims for spoliations, and remove and sub- 
 sist them. But the Cherohees understood that the award merely fixed 
 the price and value of their rights to their lands, and of their im- 
 provements ; that the treaty stipulations remained in force, by which 
 the United States were bound to remove and subsist them ; and that 
 the claims for spoliations were also to be paid, in addition to the sum 
 of $5,000. 
 
 That this question thus arising, the Cherokee delegation declined 
 to treat, suggesting that the proposition, as understood by the Presi- 
 dent, might be submitted to their nation ; and afterwards, on the 14th 
 Marchj 1885, articles of a treaty were agreed on by another set of dele- 
 gates of the Cherokees, to be submitted to the Cherokee nation for their 
 consideration ; by which articles it was proposed that the Cherokees 
 should cede their whole country for the consideration of $4,500,000, 
 and 800,000 acres of land west of the Mississippi ; out of which sum 
 of $4,500,000 were to be deducted, as appeared by a schedule thereto 
 annexed, expenses of removal, estimated at $255,000; subsistence, esti- 
 mated at $400,000 ; claims and spoliations, estimated at $250,000 ; 
 and for blankets, rifles, and kettles, $80,000. 
 
 That these articles for a treaty were, in the fall of the year 1835, 
 sent out to the Cherokees by a commissioner appointed to treat with 
 them ; that, in an address to the Cherokees by the President, also sent 
 therewith, they were informed that the Senate had given their opinion 
 of the value of the Cherokee ])ossessions ; that the articles provided for 
 their removal at the expense of the United States, for their subsistence 
 for a year, for a gratuity of $150 to each person, and for the usual sup- 
 ply of rifles, blankets, and kettles. 
 
 That the commissioner unitormly and repeatedly informed the Chero- 
 kees that the treaty was to be made " on the basis of the $5,000,000 
 awarded by the Senate ;" * * * that it was to be a treaty for the 
 settlement of all difficulties between the Cherokees and the United 
 States, "and for a cession of all their lands east of the Mississippi, on 
 the basis of the award of the Senate /or the same, being $5,000,000 ;" 
 and that their delegation, authorized to settle their difficulties, and 
 enter into a treaty for a cession of their entire country, did agree to 
 sell the same to the United States for such a sum as the Senate should 
 award ; and that the Senate fixed the price at $5,000,000. 
 
 That the commissioner, advised of the Cherokee understanding as 
 to the meaning and true construction of the award of the Senate, pro- 
 posed to the Cherokees that if any important points of difference 
 should arise between him and them in regard to that award they 
 should be included in a separate and conditional article, and so be 
 
J K. ROGERS. 29 
 
 agaia brought before the President and Senate for their final determi- 
 nation ; and accordingly he prepared and i)roposed an article providing 
 thai as a (juestion had arisen between them and him whether the 
 Senate intended to include in their award, also, the just claims of the 
 Cherokees against the United States, or the, price of their land only, 
 therefore that matter should be again referred to the Senate for its de- 
 termination ; and if the claims were not intended to be included, 
 
 dollars should be allowed for claims. 
 
 That the Cherokees declined to accept the articles so ])repared ou 
 the ground that they would be bound and the United States would not; 
 but that finally the treaty of 1835 was concluded with a portion of 
 said nation, it being understood that the Senate was to settle the 
 question submitted to it before the treaty should be submitted for rati- 
 fication. 
 
 That, by the letter of said treaty, it was submitted to the Senate to 
 decide whether by their award they intended that the claims for spo- 
 liations should be paid out of or over and above the said sum of 
 $5,000,000 ; and if the latter, then an additional sum of $300,000 
 should bo allowed for spoliations ; and by the 8th article the United 
 States agreed to remove the Cherokees to their new homes, and sub- 
 sist them for a year after their arrival there, furnishing steamboats, 
 baggage wagons, and physicians ; or to allow those who should pre- 
 fer to remove and subsist themselves, $20 a head for removal and 
 $33 33 a head for subsistence, in money. 
 
 By article 9 the improvements of individuals and ferries were to be 
 valued and paid for. By article 10 certain sums were to be invested 
 as national funds, certain debts and claims against the Cherokee Na- 
 tion paid, and $300,000 set apart for spoliation claims. And by arti- 
 cle 15 the expenses of removal and subsistence, and the amount of 
 claims for spoliations, were to be paid out of the $5,000,000 ; and, 
 after deducting them, and the amounts paid for improvements, ferries, 
 debts of the nation, &c., the balance was to be equally divided among 
 all the people belonging to the Cherokee nation east, according to 
 the census just then completed. 
 
 Which articles 8 and 15 were intended to be conditional and con- 
 tingent, to a certain extent, in this : that if the Senate should decide 
 that the $5,000,000 was intended by the award to be the price of the 
 lands only, then the 8th article stood unaffected by the 15th, and the 
 United States were bound, over and above the $5,000,000, to pay 
 the spoliation claims and to remove and subsist the Indians, or pay 
 the commutation prices of $20, and $33 33 for each, according to the 
 8th article of the treaty of 1828, and the 8th article of that of 1835 in 
 question ; by virtue of the provision of tlie 17th article of the latter, 
 by which all stipulations in former treaties, not superseded or annulled 
 by it, were to continue in full force and virtue. But if the Senate 
 should decide that the $5,000,000 were intended to cover and include 
 not the price of the land alone, but also the amount of claims for spoli- 
 ations, and the expenses of removal and subsistence, then the 15th 
 article stood in full and qualified the 8th. 
 
 That on the 29tli of February^ 1836, Senators Cuthbert and King, 
 of Georgia, and King, of Alabama, who had voted for the award, 
 
30 J. K ROGERS. 
 
 stated to the President, in writing, that the Senate did not intend that 
 the allowance for spoliations or expenses of removal should be deducted 
 from the sum of |5, 000, 0^0 recommended to be offered to the Chero- 
 kees as the price of their territory. 
 
 That supplementary articles to the treaty were signed on the 1st of 
 March, 1836, by the 2d article of which it was agreed that it should 
 be submitted to the Senate to decide whether that sum was intended 
 to include expenses of removing the Cherokees or the amount of their 
 spoliation claims ; and if they should decide that it was not, then 
 such further provision should be made for those purposes as to the 
 Senate should seem just ; and, by the 3d article, in the event of such 
 decision, $600,000 was to be allowed the Cherokees, to include ex- 
 penses of removal, and their claims, &c., and aoy surplus to be paid 
 over to their education fund. 
 
 That the Senate decided that the |5, 000, 000 was the price of the 
 lands alone, and did not include the spoliation claims nor expenses of 
 removal ; the evidence of which decision was, that they ratified said 
 treaty and supplement, including said allowance of |i300,000 ; thus 
 agreeing to pay that as a consequence of an acknowledged legal obliga- 
 tion, the question submitted being, in reality, whether the |5, 000, 000 
 was not the price of the land and improvements alone, and not whether 
 it did or did not include any particular charge or item of expenditure ; 
 and from the decision that it was it resulted, as a corollary, that it did 
 not include the spoliation claims, expenses of removal, or subsistence. 
 
 That when and before the Senate so decided, the letter of Senators 
 King, King, and Cuthbert was before it, as also all the correspond- 
 ence and negotiations which preceded and led to the treaty and sup- 
 plement ; and the views of the Cherokees and the position assumed by 
 them were well understood by the Senate. 
 
 That in the schedule to the original articles signed at Washington 
 and sent out to the Cherokees, the expenses of removal were estimated 
 at $255,000, claims and spoliations at $250,000, and blankets, rifles, 
 and kettles at $80,000 ; or, together, $585,000 ; {Doc. No. 286, Eo. 
 of Beps., \st SPSS. 2itJi Cong., p. 39;) so that it was supposed by the 
 Senate that, in appropriating $600,000 to meet these expenditures^ 
 they appropriated a just and sufficient sum to meet the legal obliga- 
 tion which was decided to rest upon the United States ; and that 
 appropriation or allowance was in nowise intended to limit the extent 
 of that plenary legal obligation. 
 
 That this question, thus decided in favor of the positions assumed 
 from the beginning by the Cherokees, was again so decided by the 
 whole legislative power of the United States, and their obligation to 
 remove and subsist them broadly and fully recognized and acknow- 
 ledged in the year 1838 ; in which year the Cherokees claimed, as a 
 matter of right, under the treaty of 1835 and the supplement of 1836, 
 that the expenses of their removal and subsistence ought to be defrayed 
 by the United States ; and the Secretary of War, when no new treaty 
 had been made, nor even any proposition for a treaty entertained, de- 
 cided that the position assumed by the Cherokees was correct, and 
 proposed to Congress to make such allowances to the Cherokees as 
 were believed to have been originally intended by the Senate ; and, 
 
J. K. ROGERS. 31 
 
 accordingly, estimated that to remove every remaining Cherokee, at 
 $30 a head, it would he necessary to appropriate, over and ahove an 
 amount on hand, |435,900 ; and that to subsist every one, removed 
 and unremoved, for a year, it would be necessary to appropriate 
 $611,105 55, being for 18,335 Indians, at |33 33 a head; which 
 estimates being submitted to Congress, the conclusions of the Secre- 
 tary were adopted and the legal obligation of the United States recog- 
 nized^ and, by act of 12th June, 1838, the sum of $1,047,067 (being 
 for removals, as estimated, $435,900, and for subsistence for 18,335 
 persons, at $33 33| a head, $611,167) was appropriated, in full, for 
 all objects specified in the 3d article of the treaty of 1835, ''and for 
 the further object of aiding in the subsistence of the Indians for one 
 year after their removal west. And, to recognize and admit, in the 
 amplest terms, the legal obligation as a consequence whereof this 
 appropriation was made, it was expressly provided that no part of 
 that sum should be deducted from the $5,000,000 stipulated to be paid 
 to the Cherokees by that treaty. 
 
 That, by the 12th article of the treaty of 1835, it had been stipu- 
 lated that those individuals and families of the Cherokee nation who 
 were averse to removing and desired to become citizens of the States 
 where they resided, should be entitled "to receive their due portion 
 of all the personal benefits accruing under this treaty for their claims, 
 improvements, and per capita j" as soon as an appropriation should 
 be made for the treaty. 
 
 That on the 6th of August, 1846, (9 Stat, at Large, 871,) a treaty 
 was made between the United States and the Eoss or government 
 party, the treaty party, and the old settlers of the Cherokees, to which 
 the Cherokees still east of the Mississippi were no parties; and it was 
 expressly agreed by article 10, that nothing therein contained should 
 be so construed as in any manner to take away or abridge any rights 
 or claims which they had, or might have, under the treaty of 1835 
 and the supplement of 1836. 
 
 By article 3 it was admitted by the United States that the spolia- 
 tion claims luere never jicstly chargeable to the $5,000,000, but were to 
 be paid by the United States ; and the latter agreed to reimburse to 
 said fund the amount theref:)r improperly charged to it, and certain 
 other sums improperly charged to it, including sums paid agents of 
 the government ; and that the amounts so reimbursed should tbrm 
 part of the amount to be distributed under the 9th article of the new 
 treaty. 
 
 To ascertain the amount due the old settlers, (who had emigrated 
 prior to the treaty of 1835,) article 4 provided that they should receive 
 one-third of the balance found, by deducting from the sum of .$5,600,000 
 all the investments and expenditures enumerated in the 15th article of 
 the treaty of 1835, (excluding all extravagant and improper expendi- 
 ture,) estimating removal and subsistence at $53 33 a head. These 
 western Cherokees claimed that the amount of spoliation claims, and 
 expenses of removal and subsistence, ought not to be charged against 
 the $5,600,000, to ascertain the balance which they were to share ; 
 and article 12 provided for submitting that question, as to them, to the 
 
32 ■ J. K. ROGERS. 
 
 Senate ; but that body struck out the article, thus making no decision, 
 when, on the 8th of August, 1846, the treaty was ratified. 
 
 But as to the other parties interested, a different arrangement was 
 made. By article 9, the United States agreed to make a fair a,nd just 
 settlement of all moneys due the Cherokees, and subject to the per 
 capita division, under the treaty of 1835 ; such settlement exhibiting 
 all moneys properly expended under that treaty, and embracing all 
 sums paid for improvements, ferries, spoliations, removal and sub- 
 sistence, and commutation therefor, debts and claims on the Cherokee 
 nation, the 800,000 acres sold to them west of Missouri, the invest- 
 ments in general fund, and all sums which might thereafter be pro- 
 perly allowed and paid under the treaty of 1835 ; the aggregate of all 
 which should be deducted from the sum of |6, 64 7, 067, and the balance 
 be paid per capita in eq^ual amounts, to all the Clierokees, their repre- 
 sentatives, &Q,., residing east of the Mississippi, at the date of the 
 treaty of 1835, and the supplement of 1836. 
 
 But this article was qualified by article 11, which provided that the 
 question, whether the one year's subsistence was properly chargeable 
 against the |5, 000, 000, should be submitted to the Senate for its 
 decision, who should decide whether the subsistence should be borne 
 by the United States or by the Cherokee funds ; and, if by the Chero- 
 kees, whether it should be charged at more than $33 33 a head ; and 
 also the question, whether the Cherokee nation should be allowed 
 interest on whatever sum should be found to be due the nation, and 
 from what date, and at what rate per annum. 
 
 Your petitioner, for himself, and the other persons aforesaid, repre- 
 sents, that the Senate had already decided, in 1836, that the spoliation 
 claims and expenses of removal were not to be paid out of the 
 $5,000,000. This decision being final against the United States, and 
 a mere corollary from the real decision, upon the real true point sub- 
 mitted, which was, whether the $5,000,000 was or was not the price 
 of the lands alone; that on the 12th day of June, 1838, the Congress 
 and the President, by the act that day approved, had solemnly decided 
 that the United States were bound to pay the whole expenses ot removal 
 and subsistence, by appropriating what it was estimated would cover 
 the ivhole, and by providing that the amount thould not be charged 
 against the $5,000,000 ; and that, by the treaty of 1846, no neio ques- 
 tion, but the same question, under the treaty and supplement of 
 1835-'36, was agram submitted to the Senate; and it was made the 
 judge, selected by the United States to decide this question against or 
 in favor of them. 
 
 On the 7th of August, 1848, by act of that date, (9 Stat, at Large, 
 339,) the proper accounting officers of the treasury were authorized 
 and required to make a fair and just statement of the claims of the 
 Cherokee nation, according to the principles established by the treaty 
 of 1846. 
 
 And afterwards the Senate referred to the Committee on Indian 
 Affairs the questions submitted to itself by the treaty of 1846. The 
 committee decided that the charge for subsistence should be borne by 
 the United States. They based their decision, not upon the face of 
 the treaty of 1835, and the supplement, but upon the action of Con- 
 
J. K. ROGERS* 33 
 
 gress in 1838, holding that action to be a clear legislative affirmance 
 of the terms oiFered by the Cherokees, and acceded to by the Secretary 
 of War, and a new consideration offered the Indians to induce them 
 to abide by the terms of the treaty. And the committee held that 
 $800,528 31 having been paid for subsistence, and charged against 
 the fund, while $611,105 55 only had been appropriated for that pur- 
 pose by the act of 1838, the balance, or $189,422 76 was still due by 
 the United States. 
 
 Your petitioner submits that, while the conclusions of the committee 
 were right, the grounds of these conclusions involved some error. He 
 respectfully submits that there is really no ambiguity in the treaty of 
 1835, nor was there ever any variety of construction placed upon it, 
 because its construction was never a question ; that after the Senate 
 decided the question submitted to it in 1836, there should no longer 
 have been any question that the United States were bound to subsist 
 the Indians, because their obligation to do thai stood on precisely the 
 same ground as their obligation to remove them, which the Senate 
 then expressly decided they were bound to do, for the question sub- 
 mitted was, whether the $5,000,000 was the price of the land alone; 
 and the award was, as it was bound to be, in accordance ivith the sub- 
 mission ; and of that decision, as made, that the United States must 
 remove, and that they must suhsisti\vQ Indians, were equally corollaries. 
 
 And so it was decided by the act of 12th June, 1838. For he re- 
 spectfully submits that the sum allowed thereby was no neiu contract 
 nor new consideration. For he avers that the Cherokees never asked 
 any new favor, grace, or concession ; but always stood upon the letter 
 and spirit of the award, and claimed that, and the stipulations to re- 
 move and subsist them, contained in the treaty of 1828, and no more 
 and no less — in 1850 as in 1836 ; and Mr. Poinsett, in deciding (a de- 
 cision affirmed by Congress) that the United States ought to remove 
 and subsist thi m, expressly says that there had been not only no new 
 treaty, but no propositions even entertained for a new treaty. 
 
 But your petitioner, having said this by way of protestation against 
 the conclusion that he assents to the argument of the committee, re- 
 lies upon their decision alone as embodied in the resolution reported 
 by them, and which resolution, adopted by the Senate, became its 
 judgment upon the question submitted — final and forever conclusive as 
 against the United States, and esto^^ping them ever again to deny their 
 liability ; and he submits that it might be unjust to the Senate to pre- 
 sume that it adopted i\ie reasoning , and argument, and grounds of judg- 
 ment of the committee, and so he pleads and relies u^ion the judgment 
 itself. 
 
 And he further represents that the question submitted to the Senate 
 was, ''whether the amount expended for the one year's subsistence 
 was or was not properly chargeable to the treaty fund, and whether it 
 should be borne by the United States or the Cherokee funds ;" and 
 the decision on that question was_, that, under the circumstances, that 
 amount (so far as unprovided for by ap})ropriation) " tvas improperly 
 charged" to the treaty fund. In accordance with which the act of 
 Congress of September 30, 1850, (9 Stat, at Large, 556,) appropriated 
 $189,422 76 " for additional amount for expenses paid for subsistence, 
 Mis. Doc. 94 3 
 
34 J. K. ROGEES. 
 
 and improperly charged io the treaty fund, under Senate awaid of 5tli 
 September 1850, and lltli article of treaty of 1846." 
 
 And he further lepresents that that decision was made in favor of 
 the eastern Cherokees, including himself, as well as of those who had 
 emigrated, because the former were entitled to receive their proper 
 share of the balance to be ascertained by the accounting officers ; which 
 balance was to be increased or diminished, according as the Senate 
 should decide, one way or the other. And, also, that even if the act 
 ot 1838 hoxl been, as the Senate committee held it, a new concession, 
 instead of being, as Mr. Poinsett held, and as Congress, by its action, 
 recognized, merely carrying out the original intention of the Senate, 
 still it was as much a concession to and in favor of himself and those 
 for whom he petitions here, as for those who decided to emigrate. 
 
 He further represents that the accounting officers charged against 
 the said sum of $6,647,067 — for improvements, |1, 540, 572 27; for 
 ferries, $159,572 12 ; for spoliations, $264,894 09 ; for removal and 
 subsistence, $2,823,192 93 ; for physicians, matrons, &c., $32,003 91 ; 
 for government agents, &c., $96,999 42, (which amount the Senate 
 decided was for improper and extravagant expenditures, and must be 
 borne by the United States ;) for national debts, $18,062 06 ; claims of 
 XTnited States citizens, $61,073 49; compensation of Cherokee com- 
 mittee, $22,212 76; value of land west of Missouri, $500,000; and 
 amountinvested as generalfund, $500,880; making inall$6, 019, 463 05; 
 leaving a balance due the Cherokees, according to the 9th article of 
 the treaty of 1846, of $627,603 95 ; to which, adding the sum of 
 $96,999 42, reject,ed as aforesaid by the Senate (the judge in that 
 behalf) as improperly charged, there was found due the Cherokees 
 $724,603 37, and, adding to that $189,422 76, found due on sub- 
 sistence account, the aggregate sum to be distributed pjer capita was 
 found to be $914,626 13, which was appropriated and 2:)aid in 1850 ; 
 and of it your petitioner, and those for whom he appears and peti- 
 tions, received their share. 
 
 Your petitioner further represents that the provision in the tieaty 
 of 1S28, by which the United States were bound to remove and subsist 
 the Cherokees who would remove, could not be abrogated and re- 
 scinded, unless by the consent of both contracting parties ; that the 
 award of the Senate, if it had been binding on the Cherokees, did not 
 do so ; and that by the letter of that award, which, being entirely plain, 
 admitted of no construction, the offer made to the Cherokees was simply 
 to give them $5, 000, 000 for their lands, leaving the eighth article of the 
 treaty of 18 .:8 untouched ; that when the Cherokees waived their strict 
 legal rights to insist on the letter of that award and of the treaty of 
 1828, and submitted to the Senate to say whether its letter expressed 
 their intention, and when that body decided that it did so, there was a 
 final decision against the United States as to spoliation claims, removal, 
 and subsistence ; of which decision, those of Congress in 1838 and of 
 the Senate in 1850 were but reiterations and repetitions. 
 
 And so he submits that in the account against the Cherokees, as 
 made out under the treaty of 18'{5-'36, by the accounting officers, even 
 when corrected by the Senate committee, it was erroneous to charge 
 against the $5,000,000 the amount of spoliations, and the expenses of 
 
J K. ROGERS. 35 
 
 removal and subsistence ; and he submits that, in stating the account, 
 the sum of $5,000,000, the price of the Lands, shouhl have been kept 
 entirely se^Jarate from the amounts appropriated for other objects ; and 
 that against that sum should have been charged, only, the value of 
 improvements and ferries, the debts of, and claims against, the Chero- 
 kees ; the price of the land west of Missouri, and the amount invested 
 as the general fund of the nation ; and that, deducting these only, the 
 balance was the proper amount to be distributed per capita ; that no 
 2Kirf of the charges for removal and subsistence, or of the amount of 
 spoliation claims, should have been taken into account ; that the com- 
 pensation of the Cherokee committee should not have been included, 
 because, they being agents employed by the Cherokees, the United 
 States had no right or business to fix and pay their compensation, and 
 if they chose voluntarily to do so, could not demand repayment thereof 
 from the Cherokees ; because the treaty of 1 835-' 36, contained no pro- 
 vision charging their compensation upon the price of the land, or pro- 
 viding for its payment in any way ; and because it was a matter with 
 which the eastern Cherokees had no manner of concern, nor were the 
 services of the committee at all rendered to them; and therefore their 
 compensation should not be charged against the price of the land, be- 
 cause -by that means the eastern Clierokees would be compelled, in 
 part, to pay it ; and that the subsistence furnished those who had 
 emigrated after the first year was not furnished under or in conse- 
 quence of any provision of the treaty of 1835-'36, nor had the eastern 
 Cherokees anything to do with it, but it was furnished to individuals 
 who had no power to agree, nor had the nation west any power to 
 agree that it should be paid out of the price of the land, and so the 
 eastern Cherokees be compelled to contribute to the support of persons 
 other than themselves. 
 
 Your petitioner farther represents that in the account, as made out 
 by the accounting officers, the amount invested in the general fund is 
 stated to be $500,880, whereas the treaty of 1835-'36 authorized the 
 investment of $500,000 only ; and no more could, for such invest- 
 ment be, under the 15th article of the treaty, deducted from the price 
 of the land, to ascertain the balance to be divided per capita ; and 
 therefore he claims that said sum of $880 shall not be charged in 
 making up the account. 
 
 Your petitioner further represents that the Senate committee, to 
 ascertain the amount still due the old settlers, deducted from the sum 
 of $5,600,000 the items specified in the 15th article of the treaty of 
 1835, calculating removal and subsistence at $53 33^5- a head, for 
 18,026 persons, including also spoliations and the compensation of 
 the Cherokee committee ; all which deducted left a balance of 
 $1,571,346 55 ; one-third of which, or $523,782 18, they allowed 
 the old settlers or western Cherokees, and the same was appropriated 
 and paid them. 
 
 And the accoiinting officers having found a balance due the Chero- 
 kees of $627,603 95, the committee added to that the sum of 
 $96,999 31, expenses of agents, &c., improperly charged to the 
 Cherokees, and so stated the true balance due the Cherokees to be 
 $724,603 37. 
 
36 • J. K ROGEES. 
 
 Then deciding that subsistence was improperly charged against the 
 treaty fund, they said that the entire expense of removal and subsist- 
 ence amounted to $2,952,196 26, of which |972,844 78 was ex- 
 pended for subsistence ; that, of that, $172,316 47 was furnished the 
 Indians after the first year, on the understanding that it was to be 
 deducted out of the moneys due them under the treaty ; deducting 
 which, there remained $800,528 31 paid for subsistence, and charged 
 to the aggregate fund ; that of this sum, the United States^ in ISoSy 
 provided for the payment of $611,105 55, leaving unprovided for the 
 sum of $189,422 76 improperly charged against the treaty fund ; 
 adding which to the balance of $724,603 37, they obtained the aggre- 
 gate of $914,026 13, as due the Cherokees ; which sum was appro- 
 priated and paid. 
 
 Your petitioner represents that these settlements were made upon 
 bases which, though incorrect, and greatly to the loss and injury of 
 the old settlers and other parties to the treaty of 1846, had been con- 
 sented to by them all, and so settled the whole matter as far as they 
 were concerned, though they lost largely thereby ; but that he and 
 those for whom and himself he petitions were in no wise bound by 
 their agreements, nor concluded or aifected by said settlements ; into 
 the merits of which, therefore, he does not inquire. 
 
 But, conscious that he and those for whom he now petitions were 
 entitled still to a large amount under the treaty of 1835-'36, he peti- 
 tioned Congress for relief in the premises, by petition presented to the 
 House of Eepresentatives, and there referred to the Committee on In- 
 dian AiFairs ; basing the claim upon the settlement made with the old 
 settlers as sufficiently favorable to the United States, and supposing 
 that Congress v/ould be willing to settle with them on that basis, and 
 claiming thereunder as follows, viz., tliat the Senate had found a 
 balance of $1,571,346 55 due upon the basis of the 4th article of the 
 treaty of 1846, as balance of the sum of $5,600,000 appropriated by 
 the treaty of 1835-'36, and of which they allowed the old settlers one- 
 third ; that, deducting from this balance of $1,571,346 55 the sum 
 of $914,026 13 paid in 1850, and adding $22,212 76, compensation 
 of the Cherokee committee, and $25,414 09 — an amount greater 
 than the $600,000 provided for removal and spoliations in the third 
 suj)plemental article, and improperly deducted — there was obtained 
 $704,647 16 as the balance, of which the eastern Cherokees were 
 entitled to their proportionate share. 
 
 And a census having been taken in the year 1851 of all the Chero- 
 kees entitled to share per capita under the treaty of 1846, and the 
 whole number, east and west, having been found to be 16,231, and 
 that of the eastern Cherokees 2,133, the above balance to be divided 
 was, for each of the 16,231 persons, $43 43, or, for the 2,133 east- 
 ern Cherokees, $92,625 19, on which interest was claimed, at 5 per 
 cent, per annum, from the 12th day of June, 1838, until paid. 
 
 In favor of the claim so stated, a report was made by the Hon. Mr, 
 Caldwell, of North Carolina, for payment of principal and interest, 
 which v/as unanimously adopted by the committee ; but it not being 
 called for reports at that session, the report was not submitted to the 
 House. 
 
J. K. ROGERS. 37 
 
 At tlie first session of the 83d Congress, tlie claim, in the s^me 
 shape, was again presented to the House, and referred to the Commit- 
 tee on Indian Affairs ; and on the 20th of March, 1854, the Hon. Mr. 
 Grow, from that committee, made a report in favor of paying the 
 principal, with interest, from December 14, 1852 ; and he offered an 
 amendment to the general Indian appropriation bill, directing its 
 payment, which passed in committee of the whole by a considerable 
 majority, but was lost in the House. 
 
 The claim was afterwards, in the same shape, presented in the Sen- 
 ate, and referred to the Committee on Indian Affairs, by whom the 
 report of the Hon. Mr. Grow was adopted, and the Hon. Mr. Sebas- 
 tian offered an amendment to the general Indian appropriation bill 
 for its payment, which the Senate unanimously adopted ; the bill was 
 returned to the House, and it refused to concur in the amendment ; 
 the Senate insisted on the amendment, and it went to a committee of 
 conference, where it v/as finally lost. 
 
 Your petitioner also states that on the 5th of June, 1854, the Hon. 
 Mr. Hunter, chairman of the Committee of Ways and Means, ad- 
 dressed a letter to the Secretary of the Interior, asking his opinion as 
 to the merits of the claim. That letter was referred to the Commis- 
 sioner of Indian Affairs for a report, and, on the 20th of the same 
 month, the Secretary transmitted the report of the Commissioner, in 
 which he declined to express an opinion, on the ground that it might 
 be deemed discourteous to the Senate and the Committee on Indian 
 Affairs of the House, both of which had already passed judgment on 
 the claim. 
 
 At the 2d session of the same Congress a supplemental memorial 
 was presented in the House, and referred to the Committee on Indian 
 Affairs, which, under a joint rule, resumed the consideration of the 
 claim as unfinished business, adopted the former report of the Hon. 
 Mr. Grow, and instructed him to present it to the House. 
 
 And your petitioner herewith files copies of the said memorials, 
 and of the report of the Hon. Mr. Grow, including the report of Mr. 
 Senator Sebastian, and prays that they may be taken and considered 
 as parts of this petition. 
 
 And the petiiioner further adds, that on the 11th of January, 1855, 
 the Commissioner of Indian Affairs gave the Hon. Chairman of the 
 Committee of Ways and Means his opinion against this claim, on 
 grounds utterly untenable, and an entirely mistaken view of the 
 nature and basis of the claim, and of the facts on which it depended. 
 
 The House report of 1854 thus states the claim of the eastern 
 Cherokees : 
 
 Amount to be paid under treaty of 1835 $5,600,000 00 
 
 Deductions ($4,028,653 45— $22,212 76) 4,006,440 69 
 
 Leaves for per capita distribution 1,593,559 31 
 
 Whereof the Cherokees east have received their pro- 
 portion o£. ...,.,.....,..,,.,,. 914,026 13 
 
 679,533 18 
 
38 J. K. ROGEES. 
 
 . Brou gilt forward |679,533 18 
 
 Then the committee says that no part of the amount of 
 spoliation claims or expenses of removal could he 
 charged to the Cherokees ; $600,000 was appropri- 
 ated for that ; hut the amount really was : 
 
 Eemovals |360,520 00 
 
 Spoliations 264,884 09 
 
 625,414 09 
 So that there was improperly deducted from the 
 
 $5,000,000 25,414 09 
 
 To he divided per capita 704,947 27 
 
 Whole numher entitled, 16,231, or |43 43 per head. 
 
 No. of eastern Cherokees, 2,133, or at |43 43 each 92,625 19 
 
 Tour petitioner suhmits that this is evidently wrong ; for Congress 
 afterwards agreed that the United States ought to pay, and provided 
 for paying of, the above deductions, and for expenses of removal and 
 subsistence, $1,047,067. Of this amount, the eastern Cherokees were 
 equally entitled to their proper share. It went to reduce by so much 
 the charges against the price of their land. Therefore, on the princi- 
 ples of the House report, the account would be stated thus : 
 
 Amount to be paid under treaty of 1835 and act of 1838, $6,647,067 00 
 Deductions, as per House report , 4,006,440 69 
 
 Leaves for per cap^7a distribution., 2,640,626 i.l 
 
 Afterwards appropriated and distributed..,. 914,026 13 
 
 To be divided per capita 1,726,600 18 
 
 Whole number entitled, 16,231, or $106 38 each. 
 
 No. of eastern Cherokees, 2,133, at $106 38 each is... 226,898 87 
 
 But your petitioner does not contend for this, because he admits that 
 the basis of settlement with the old settlers, assumed in the treaty of 
 1846, was no proper basis for a settlement with the eastern Cherokees, 
 but proceeded upon views peculiarly applying to the old settlers alone. 
 
 Your petitioner submits that the Senate and Congress having, in 
 favor of the eastern as well as the western Cherokees, admitted the 
 liability of the United States to pay the year's subsistence, and hav- 
 ing in fact paid the whole, by the payment, first, of $611,167 in 1838, 
 and $189,422 76 in 1850, it cannot be claimed that any portion 
 thereof should be charged against the $5,000,000, in settling with 
 your petitioner and those whom he represents. 
 
 But, if the subsistence we7X properly so chargeable, then the account 
 would stand thus : 
 
J. K. ROGERS. 39 
 
 Price agreed for land $5,000,000 00 
 
 Proper debts, as per preceding account... $2^779,279 94 
 Subsistence, 18,026 Indians, at .$33^ a 
 
 head 600,866 66 
 
 Paid in 1850 914,026 13 
 
 4,294,172 73 
 
 705,327 27 
 Share of eastern Cherokees, as 2,133: 16,231, or 92,756 42 
 
 So that, even charging the commutation price for subsistence to 
 the Cherokees, there is due to the eastern Cherokees an amount a 
 little larger than that reported by the House committee ; and he sub- 
 DDits that it cannot be disputed that the Senate, in 1836, a^. leasts de- 
 cided that the expenses of removal and the amount oi spoliation claims 
 were to be paid by the United States ; for they were within the very 
 letter of the submission to them by the treaty. 
 
 But he respectfully urges that the decision also, in fact, included 
 the suhsistence ; and that if it did not, the liability of the United States 
 for that existed under the treaty of 1828, and was decided by the act 
 of June, 1838, and by the judgment and decision of the Senate in 
 1850, and by the actual payment thereof by Congress ; and therefore 
 he submits that the account with the eastern Cherokees is properly 
 stated as follows : 
 
 Purchase-money of land in account. 
 
 Price agreed to be paid.... $5,000,000 00 
 
 To be debited as follows : 
 
 1. For improvements , $1,540,572 27 
 
 2. For ferries. 159,572 12 
 
 3. For debts and claims on the nation 79,135 55 
 
 4. For price of land west of Missouri. 500,000 00 
 
 5. Invested in national fund 500,000 00 
 
 2,779,279 94 
 
 Balance of price due up to 1850 2,220,720 06 
 
 Then paid by act of September 30, 1850, (of which 
 
 sum the eastern Cherokees received their share)... 914,026 13 
 
 Still due and to be divided, (as to them) 1,306,693 93 
 
 Whole number of persons to share it 16,231, §80 hQ^^ 
 
 each . 
 Number of eastern Cherokees 2,133, is, at $80 50,V 171,719 29 
 
 And that the United States are still in arrears upon the spoliation, 
 removal, and subsistence account_, appears as follows : 
 
40 ., J. K EOGEES. 
 
 Spoliation, removal, and subsistence account. 
 
 Eemoval, subsistence, and commutation therefor $2^823,192 93 
 
 Deduct subsistence after one year $172,316 47 
 
 Deduct goods for poor Cherokees 2,765 84 
 
 ___ 175,082 31 
 
 2,648,110 62 
 
 Physicians, matrons, medicines, &c.,... 32,003 91 
 
 Spoliation claims 264,894 09 
 
 Appropriated against this : 
 
 In 1836.... 600,000 00 
 
 In 1838.,,..,...... 1,047,067 00 
 
 In 1850,........ = ,,............................ 914,626 13 
 
 2,945,008 62 
 
 2,561,693 13 
 
 Balance unappropriated 383,315 49 
 
 And so your petitioner represents that he and those for whom he 
 petitions are entitled to receive from the United States, on account of 
 the premises aforesaid, the sum of |171,719 29, under the treaties of 
 1828 and 1835, and the supplement of 1836. 
 
 And he further represents that the 12th article of the treaty of 
 1835 provided that those Cherokees who determined to remain east of 
 the Mississippi should be entitled to receive their due portion of all 
 the peisonal benefits accruing under that treaty, for their claims, im- 
 provements and per capita, as soon as an appropriation should be made 
 for said treaty. 
 
 That by the treaty of 1846 it was submitted to the Senate to decide 
 "whether the Cherokee nation shall be allowed interest on whatever 
 sum may be found to be due the nation, and from what date, and at 
 what rate per annum ;" upon which submission the Senate decided 
 " that interest, at the rate of five per cent, per annum, should be 
 allowed upon the sums found due the eastern and western Cherokees, 
 respectively, from the 12th day of June, 1838, until paid ;" which 
 was thus settled by the Senate as a general principle, under the treaty 
 of 1835-'36. 
 
 Wherefore, the petitioner, for himself and those in like case with 
 himself, for whom he petitions, prays that this, their claim, being by 
 this honorable court considered, it may be by the court here decided 
 that they are entitled to be paid by the United States the said sum of 
 $171,719 29, with interest from that date, at the rate of five per cent, 
 per annum ; to be divided equally among said 2,133 persons, or their 
 proper representatives ; and that this court may so report to Congress, 
 with the proper bill to carry said decision and decree into effect. 
 
 JOHNSON K. ROGERS, 
 For himself and all other eastern Cherokees. 
 ALBERT PIKE, 
 Attorney for Petitioner. 
 
J. Ko ROGERS. 
 
 IN THE COURT OF CLAIMS. 
 
 Johnson K. Eogers, for himself and others, vs. The United States. 
 Argument for Petitioner. — On re-hearing. 
 
 The treaty of 1828 between the United States and the Cherokees 
 provided that, to every Cherokee head of a family who would emigrate 
 should be given certain articles, and a just compensation for the pro- 
 perty he might abandon ; that the cost of emigration of all should be 
 borne by the United States, good and suitable ways opened, provi- 
 sions procured for their comfort^ accommodation and support ; and 
 provisions for twelve months after their arrival west. — (7 Stat, at 
 La^-ge, 313.) No time was limited for this. The treaty of 1833 (Id., 
 416) vras supplementary to this, and left it in full force. 
 
 It was still in full force in 1835 ; and the treaty of 1835 (Id., 486) 
 expressly provides that " all sti})ulations in former treaties, which 
 have not been superseded or annulled by this, shall continue in full 
 force and virtue." 
 
 On the 25th of February, 1835, the Cherokee delegation proposed 
 to treat on the basis of a gross sum being allowed for all their lands, 
 the United States paying "for a cession of its territory" $20,000,000, 
 continuing them in possession for five years, paying their losses caused 
 by the acts of adjoining States and their citizens, and indemnity 
 for certain other claims. — (Doc. No. 286, Ho. of Reps., 1st scss. 24tli 
 Cong., 127, 128.) 
 
 These terms being considered too extravagant, they reminded the 
 President, on the 2'7th February, 1835, that he had often said he 
 would grant them as liberal terms as the Senate or the friends of the 
 Indians would be willing to allow ; and they said, " we would there- 
 fore respectfully ask that our propositions be submitted to the Senate 
 by the President in order that the sense of that honorable body may 
 be had on them.— (Id., 129.) 
 
 On the 16tli February, 1835, the Secretary of War had informed 
 them that tlie President was " willing * * * to allow you a gross 
 sum for your claims, and leave to your own people all the arrange- 
 ments for their removal and ultimate residence." 
 
 On the 19th of June, 1834, a treaty (which was not ratified) had 
 been concluded with some of the Cherokees, by which it was agreed 
 to cede all the national lands for divers annuities and payments^ and 
 the United States agreed to remove tlie Cherokees and subsist them 
 for one year, and also to furnish them with rifles, blankets, &c., under 
 the treaty of 1828. — (Id., 134.) The improvements of the Indians, 
 and by a supplement their ferries, were to be paid for. Each Indian 
 emigrating before October 15, 1835, to receive $60, and each within a 
 year thereafter $25.— (Id., 136.) 
 
 On the 28th February, 1835, the delegation requested " that the 
 subject be referred to the Senate for its sense on the question, and again 
 reminded the President that he had often told them that he was dis- 
 posed to treat them with liberal justice, and would go as far as the 
 
^2 . J. K. E GEES. 
 
 Senate would allow him in regard to money matters. — (Id., 141.) 
 And they said that they were prepared ''' to abide the award of the 
 sense of the American Senate" upon their proposition, and to recom- 
 mend the same for the final determination of their nation. — (Id.) 
 
 On the 6th March, 1835, Mr. Cass, Secretary of War, wrote to the 
 delegation that, in their letter of the 28th, they had stated their readi- 
 ness to accept for themselves, and recommend their people to accept, 
 '''such a sum for their claims east of the Mississippi river as the Senate 
 of the United States might deem just." Claims east of the Mississippi 
 river necessarily meant their possessory rights to the land and their 
 improvements. Choses in action have no locality. That is the mean- 
 ing of the word claims (for which the President was willing to allow 
 a gross sum) mentioned in Mr. Cass's letter of 16th February. 
 
 And the Secretary said : " The Senate have, by a resolution, stated 
 as their opinion that ' a sum not exceeding five millions of dollars 
 should be paid to the Cherokee Indians for all their lands and posses- 
 sions east of the Mississippi river.' " 
 
 Thus the Secretary showed that he understood claims and lands and 
 possessions to be convertible terms. Nothing is said about claims of 
 damages for spoliations, nor of removal and subsistence, which the 
 United States were already bound by the treaty of 1828 to meet and 
 pay whenever the Cherokees would emigrate ; and they were also 
 bound by the same treaty to pay each the value of his possessions. 
 The Senate award fixed the value of those possessions. 
 
 He then proceeded to say that the President was willing to enter 
 into a negotiation with the Cherokees for the cession of all their claims 
 east of the Mississippi on condition that the whole amount of con- 
 sideration to be given should not exceed $5^000,000. — (Id., 143.) 
 These are terms which are appropriate to nothing but a sale of pro- 
 perty, or a transfer and assignment of claims. 
 
 He further said that he was ready to receive propositions concerning 
 the stipulations to be embodied in a treaty for the protection of private 
 rights, and for such arrangements as might be necessary for the re- 
 moval and re-establishment of their people. He stated the President's 
 desire of doing justice to them, and providing for the satisfaction of 
 their claims. 
 
 On the 6th of March the delegation requested to be furnished with 
 all the proceedings of the Senate, that they might fully understand its 
 action. 
 
 And they inquired whether they were to understand that the 
 $5,000,000 resolved by the Senate to be paid for their lands and pos- 
 sessions east of the Mississippi embraced also expenses of removal, 
 subsistence for a year, blankets, guns, &c. ; or whether it was, as on its 
 face appeared, an offer of that sum for their title to their lands, their 
 improvements and houses ; and whether the United States would, in 
 addition, pay expenses of removal, &c., as provided for in the general 
 plan for the Cherokee removals by the treaty of 1828 ; and also whether 
 additional country west would be given them. — (Id., 143-'4.) 
 
 They said : "It is indispensably necessary to candor and justice that 
 all these points should be clearly understood on both sides, and it is 
 
J. K. ROGERS. 43 
 
 utterly impossible for us to proceed further until we do understand 
 them."— (lb.) 
 
 On tlie 7th of March, 1835, the Secretary answered : " The sum of 
 $5,000,000 which is offered for your claims east of the Mississippi, 
 will, as I have already informed you, be in full for your entire ces- 
 sion." * * [That he had already informed them; and that they 
 knew. That was not what they had inquired.] * * << Nothing 
 more will be paid for removal, or for any other purpose or object 
 whatever. In giving to you the full value of your property, the Uni- 
 ted States comply with all the demands of justice upon them. This 
 letter closes the intercourse in writing between us." * * [That 
 was the answer to their question. It admits that the $5,000,000 was 
 simply the value of their property ; and claims, in effect, that the 
 treaty of 1828, so far as it bound the government to remove and sub- 
 sist them, was no longer in force.] — (Id., 144, 145.) 
 
 In their answer of 9th March, the delegation protested against any 
 treaty being made with a rival delegation, and proposed that the mat- 
 ter be referred to the consideration of the nation itself. — (Id., 145-"6.) 
 
 On the 14th of March, 1835, articles of treaty were drawn up at 
 Washington, and signed by the rival (or Ridge) delegation, in accord- 
 ance with the President's and Secretary's construction of the Senate's 
 award. At the end of it was a schedule, showing how the $5,000,000 
 was to be apj^lied — $255,000 to expenses of removal, $400,000 to 
 subsistence, and $250,000 to claims and spoliations ; and for blankets, 
 rifles, and kettles, $80,000. This was probably the estimate on which 
 $600,000 was afterwards appropriated for spoliations and removals. — 
 (Id., 32 to 39.) 
 
 These articles were sent out to the Cherokees, by a commissioner, 
 with a letter or talk from the President, in which he said: "The 
 Senate of the United States have given their opinion of the value of 
 your possessions — and this value is insured to you in the arrangement 
 which has been prepared ;" and he said, that the stipulations provided, 
 * * 3d. For the removal, at the expense of the United States, of 
 your whole people ; for their subsistence for a year after their arrival 
 in their new country, and for agratuity of $150 to each person. — (Id., 
 40.) [It must have sounded strangely to the Indians to be told that 
 they were to be removed at the expense of the United States, and re- 
 ceive a gratuity of $150 each, when, as the articles and schedule 
 showed, they were to pay these to themselves, out of the price of their 
 land.] 
 
 On the 14tli of October the commissioner addressed his first com- 
 munication to the Cherokees. He told them that he was prepared 
 " to enter into negotiations for the settlement of all the difficulties be- 
 tween the Cherokees and the United States, and for a cession of all 
 their lands east of the Mississippi, on the basis of the award of the 
 Senate for the same, being five millions of dollars." — (Id., 63.) 
 
 But he did not submit to them the articles sent from Washington, 
 because he understood there were objections to some points^ which he 
 said he had the power to alter ; and that he was disposed to make a 
 treaty as favorable to the Indians, and as satisfactory as his instruc- 
 tions would enable him to do. — (Id., 63.) 
 
44 ►- ■ J. K EOGEES. 
 
 He was informed, in reply, that the Cherokees wouhl not accept the 
 treaty already prepared, and was invited to offer new terms. — (Id., 64.) 
 
 On the 17th of October the commissioner declined to treat with 
 the authorities of the nation, declaring their constitution and civil or- 
 ganization to be nullities, and appealed to the people at large. But he 
 invited the appointment of a committee to negotiate and settle the de- 
 tails of a treaty, " on the basis of the five millions." — (Id., 65, 66.) 
 
 He said, that the Ross delegation at Washington were authorized 
 to settle all the difficulties of the Cherokees with the United States, 
 " and enter into a treaty for the cession of their whole country;" and 
 that they did agree to sell the same to the United States for such a 
 sum as the Senate of the United States should award. The Senate 
 fixed the price at "five millions;" and he said that he was sent there 
 " to conclude a treaty on the basis of the rive millions." — (Id., 66.) 
 
 And he said, that if there should be " any important points of dif- 
 ference between the Cherokees and commissioners, in regard to the 
 award of the Senate, they could be included in a separate and condi- 
 tional article, by which they would again be brought before the Presi- 
 dent and Senate for their final determination." — (lb.) 
 
 The Cherokees afterwards appointed twenty persons as a delegation 
 to make a treaty. — (lb.) 
 
 The commissioner then submitted an article, by which the Chero- 
 kees were to cede " all their right and title to all their lands east of 
 the Mississippi river/ 'and "to accept in full for all their claims against 
 the United States, of every kind and nature whatsoever," the sura of 
 |5, 000, 000, "according to the award of the Senate of the United 
 States," to be paid as detailed in the following articles. And the ar- 
 ticle went on to say, that as a question had arisen "whether the Senate 
 of the United States intended to include in the award also the just 
 claims of the Cherokee people against the United States, or the price 
 of the land only, therefore it was agreed that that matter should 
 be again referred to the Senate for their determination ; and if the 
 claims were not intended to be included, then there should be allowed 
 
 ■ dollars for claims ; but if the Senate would not allow that 
 
 additional amount, it should not invalidate the treaty. — (Id., 88.) 
 
 The Cherokees answered, that the terms proposed were the same 
 ■which their people had already rejected ; that the provision about their 
 just claims was only conditional, and dependent on the approval of 
 the Senate, who, to judge from the Secretary's letter, would be sure 
 to disapprove. That thus the Cherokees would be bound, and the 
 United States not. They therefore thought that no treaty could be 
 made, and further negotiations would be useless ; and so it was un- 
 necessary to speak on other points, which otherwise it might be expe- 
 dient to explain. — (Id., 90.) 
 
 Afterwards, the commissioner drew up the articles of a treaty. The 
 first article was precisely as cited. — (Id,, 94.) 
 
 By a subsequent article, claims of the Cherokees for spoliations 
 were to be ascertained and paid by the United States. — (Id., 96.) The 
 amount of these claims and expenses of removal and subsistence to be 
 deductedfrom the consideration money allowed by the treaty. — (Id. , 98.) 
 
 On the'Slst October the delegation informed him that the propo- 
 
J. K. ROGERS. 45 
 
 sitions remained substantially the same as before; and that they were 
 going to Washington, there to make a treaty. — (Id., 99.) 
 
 After they went to Washington, some of the Cherokees were got 
 together, and the treaty of 1835 was made. 
 
 The journal of the Cherokee council which made it states, that "it 
 was agreed by the commissioner that there should be a certainty on 
 the subject of claims before the treaty was submitted to the Senate." — 
 (Id., 113.) Fourteen thousand nine hundred and ten Cherokees signed 
 a protest against this treaty, as made by unauthorized persons ; and 
 the national council and committee did the same. — (Id., 114, 115.) 
 
 The treaty of 1835 was made on the 29th day of December. Its 
 first article states the question submitted to the Senate to be, whether 
 the $5,000,000 was to include the amount of claims for spoliations. 
 
 The supplementary articles, signed March 1, 1836, enlarge the 
 question to be submitted. They state the Cherokee opinion to be, 
 that the award of the Senate was not intended to include the amount 
 required to remove them, nor the spoliation claims ; that this opinion 
 had been confirmed by that of certain senators who had voted on the 
 question ; that the President was willing to refer the subject to the 
 Senate for their consideration; and that the question to be decided was, 
 whether the $5,000,000 included expenses of removal and spoliation 
 claims. If not, further provision Was to be made, and §600,000 
 allowed for expenses of removal and all claims. 
 
 On the 29th February, 1836, Messrs. Cuthbert and King, of Georgia, 
 and King of Alabama, stated to the President, in writing, that the 
 Senate "did not intend that the allowances for spoliations or the 
 expenses of removal should be deducted from the amount of $5,000,000, 
 recommended to be oifered to the Cherokees as the price of their 
 TERRITORY ; and that in their opinion the Senate would readily add 
 $600,000 to the $5,000,000, to meet those two expenditures." 
 
 This proves several things : 
 
 1st. That the Secretary did not correctly state the Senate resolution 
 when he represented it as expressing the opinion that $5,000,000 
 might probably be allowed for the claims of the Cherokees. 
 
 2d. That the Senate meant to give the $5,000,000 for the territory 
 of the Cherokees. Subsistence, then, stood on the same footing as 
 expenses of removal. If the United States was to pay one, for the 
 same reason it was to pay the other. 
 
 3d. The $600,000 was nut given as a finality, but it was the con- 
 cession of a right, and to meet expenditures for which the United 
 States were bound. 
 
 4th. It was a fraud on the Cherokees to state tlie purposes for which 
 this $600,000 was given, as they are stated in the 3d article of the 
 supplement ; that is, for all claims of every nature, &c., reservations, 
 pre-emptions, &c. 
 
 Tlie Senate ratified the treaty and supplement on the 23d of May, 
 1836. By that they decided the point in issue, in favor of the Chero- 
 kees, tliat the $5,000,000 was for their lands alone. Everything in 
 the treaty contrary to that, or based on the contingency of a contrary 
 decision, was thereby ex})unged ; and the obligation of the United 
 States to remove and subsist the Indians, or pay the commutation, and 
 
46 * J. K ROGERS, 
 
 to pay the spoliation claims, remained perfect and intact. They made 
 a partial appropriation for these purposes, and in 1838 another ; neither 
 was in full, and both were not sufficient. 
 
 The letter of Messrs. Cuthbert, King, and King, was before the 
 Senate when they decided the question submitted to them. If the 
 statement contained in it had not been correct, it would, of course, 
 have been promptly repudiated. 
 
 The Cherokees were asking no concession, favor or compromise. 
 They never have done that to this day ; they have always stood on the 
 award of the Senate. They claimed what they did as a matter of 
 right. It would be a very arbitrary assumption to say that a gratuity 
 was given them when they asked none, but stood on their strict rights 
 under the award and the treaty of 1828, and that of 1835 also, if the 
 decision was in their favor. It was in their favor. The obligation 
 was admitted. The appropriation resulted from that. 
 
 Treaty of 1835, (7 Stat, at Large, 478.) 
 
 Preamble. The Senate had advised "that a sum, not exceeding five 
 millions of dollars, be paid to the Cherokee Indians for all their lands 
 and possessions east of the Mississippi river. 
 
 The submission to the Senate is said to have been "to fix the amount 
 which should be allowed the Cherokees for their claims and for a 
 cession of their lands." 
 
 Art. 1. (479.) The Cherokees "cede, relinquish, and convey, all 
 their lands," "and release all their claims upon the United States, 
 for spoliations of every kind," in consideration of $5,000,000, to be 
 expended, paid, and invested, as agreed. But as a question had arisen, 
 whether by the award the Senate had "included and made any allow- 
 ance or consideration for claims for spoliations," the United States 
 agreed that that question should be again submitted to the Senate for 
 their consideration and decision ; and, if no allowance were made for 
 spoliations, then an additional sum of $300,000 should be allowed for 
 the same. 
 
 Art. 8. The United States agreed and stipulated to remove the 
 Cherokees to their new homes, (west of the Mississippi,) and to subsist 
 them one year after their arrival there, furnishing steamboats,, wagons, 
 and physicians. 
 
 Those who should remove themselves to be allowed for each mem- 
 ber of their family, for expenses of removal, $20, and for tlie year's 
 subsistence $33 33. 
 
 Art. 9. Cherokee improvements and ferries to be valued, and out of 
 such value their just debts (of individual Indians) to be paid. Each 
 Indian to be furnished with money enough to enable him to remove ; 
 the balance of their dues to be paid west of the Mississippi. Mission- 
 ary establishments to be valued, and paid to the missionaries. 
 
 Art. 10. The President to invest as follows : 
 
 For general fund, in addition to existing annuities $200,000 
 
 Orphans' fund 50,000 
 
 School fund , 150,000 
 
J. K ROGERS 47 
 
 $00,000 appropriated to pay claims of citizens of the United States 
 against the Cherokee nation. 
 
 $300,000 to pay claims of Cherokees for unsatisfied spoliations. 
 
 Art. 12. Individuals and families not wishing to remove "shall be 
 entitled to receive their due portion of all the personal benefits accruing 
 under this treaty for their claims, improvements, and per capita," so 
 soon as appropriation made for the treaty. 
 
 $1UU,000 to be expended for poor Cherokees. 
 
 Art. 15. Af^r deducting the amount actually expended for payment 
 for improvements, ferries, claims for spoliations, removal, subsistence, 
 and debts and claims upon the nation, and the additional quantity of 
 lands, and goods for poor Cherokees, and the sums to be invested for 
 general national funds ; the balance to be divided equally among all 
 the people belonging to the Cherokee nation east, according to the 
 ceu.su-s just then completed ; and those who had removed to be paid for 
 their improvements, where entitled to the benefits of the final treaty. 
 
 Then came the letter of Messrs. Cuthbert, King, and King. The 
 Cherokees found that the question to be submitted to the Senate was 
 not fairly and fully stated in the treaty, and they ividened it by the 
 supplementary articles afterwards agreed upon, so as to make it include 
 expeui^,es of removal ; those expenses and their subsistence occupying a 
 common ground. 
 
 Supplemental Articles, March 1, 1836. — (488.) 
 
 Ai-.T. 1. The pre-emptions and reservations in articles 12 and 13 relin- 
 quished. 
 
 Art. 2. The Cherokees having supposed that the $5,000,000, given 
 as the value of the Cherokee lands and possessions, was not intended 
 to include the amount required to remove them, nor the value of their 
 spoliation claims, and that opinion being confirmed by some members 
 of the Senate, and the President being willing that this subject should 
 be referred to the Senate for their consideration, and, if it was not so 
 intciidtd^ that such provision should be made for the objects specified, 
 as to the Senate might seem just : 
 
 There/ore, agreed that $600,000 be allowed the Cherokee people^ 
 " to include the expense of their removal and all claims of every na- 
 ture and description against the government of the United States, not 
 herein otherwise expressly provided for, and to be in lieu of the relin- 
 quished reservations and pre emptions, and the.$300,000 for spoliations, 
 mentioned in the first article of the treaty. This $600,000 to be ap- 
 plied and distributed according to the treaty, and any surplus remain- 
 ing, ai'ter expenses of removal and payment of claims, to go to the 
 education fund." * * [This meVely referred to the Senate, and if 
 approved, to be part of the treaty.] 
 
 Art. 4. The $100,000 mentioned in art. 12 (for the poor Cherokees) 
 to go to the general fund, making it $500,000. 
 
 As the Senate committee well said, the provision — "the United 
 States also agree and stipulate to remove the Cherokees to their new 
 homes, and to subsist them one year after arrival there" — imports 
 pecuniary responsibility, an obligation to do this, over and above pay- 
 ing for their lands, rather than an agreement to disburse a trust fund. 
 
48 .J. K. EOGEES. 
 
 They might have added, that the stipulation to furnish them steam- 
 boats and baggage-wagons, physicians and medicines, conclusively 
 showed the same thing ; as also the provisions for allowing |20, and 
 paying |33 33 'per capita, to all who preferred to remove and subsist 
 themselves. This article ivas to be absolute, if the Senate decided for 
 the CheroJcees. 
 
 It is obvious that the 15th article, in providing for deducting these 
 expenses and expenditures from the $5,000,000, did so simply to pro- 
 vide for the case of a decision by the Senate that these were to come 
 out of the $5,000,000, or rather that that sum was not the price of 
 the lands alone, which was the true question. If they decided that it 
 was, then none of these expenses were to be borne by the Cherokees — 
 subsistence no more than removal. 
 
 And it is not an insignificant consideration, that all the neighboring 
 tribes were removed and subsisted at the expense of the government. 
 
 That was the case as to the Choctaws, (7 Stat, at Large, 336 ;) with 
 the Creeks, (Id., 367 ;) and with the Seminoles, (Id., 369,) by treaties 
 made in 1832 ; and the United States had assumed the same obligation 
 to the Cherokees by the treaty of 1828. 
 
 The treaty is framed with a double aspect. It assumes that, although 
 the |5, 000, 000 is, as the Cherokees contend, merely and solely the 
 price of their lands and possessions or claims east of the Mississippi^ 
 yet the Cherokees are to remove and subsist themselves ; and their spo- 
 liation claims are to be satisfied out of the |5,000,00(). The Chero- 
 kees say that if the $5,000,000 is for their lands alone, then under the 
 treaty of 1828, which that of 1835 declares is still in force, the United 
 States continue bound to remove and subsist them. 
 
 The treaty, I say, is first framed on the view of the President and 
 Secretary of War. The 8th article provides that the United States 
 shall remove and subsist the Indians. The 15th article provides that 
 the expenses of doing so shall be deducted from or paid out of the 
 $5,000,000. These articles seem inconsistent. They are really not 
 so. If the Senate should decide (by allowing the $600,000) that the 
 5,000,000 was the price of their lands alone, then it resulted, as a 
 corollary from that decision, that the United States must remove and 
 subsist them. That obligation could only exist as a consequence of 
 that decision. To appropriate $600,000 was to acknowledge the whole 
 obligation — to acknowledge it to its full extent. 
 
 The treaty is framed to provide for both contingencies. If the Sen- 
 ate decide that the $5,000,000 was for the lands only, then the 8th 
 article stands unqualified by the 15th and reiterating the 8th article 
 of the treaty of 1828. If they decide that the Indians were to remove 
 and subsist themselves, then the loth article stands aud qualifies the 
 8th. 
 
 Thus it is evident that the real question to be put was, not whether 
 that sum covered this or that other thing, the claims, the expenses of 
 removal, or the subsistence ; but whether it was not simply the price of 
 the lands and possessions, (which included improvements and ferries.) 
 That is, the Cherokees insisted on the letter of the award. 
 
 So it is agreed, that if the Senate decide according to the Cherokee 
 construction, $600,000 shall be appropriated to pay the spoliation 
 
J. K. ROGEES. 4M 
 
 claims, expenses of removal, the value of relinquished reservations and 
 pre-emptions, and all claims against the government of every descrip- 
 tion. The year's subsistence is not specially mentioned. 
 
 The Senate had no power to decide any other question than the one 
 submitted. Nothing in the treaty or supplement relinquishes any 
 right under their award, or agrees to take anything in lieu of it. 
 
 Consequently, the decision of the Senate by allowing the $600,000 
 was, that the $5,000,000 was the price of the land alone. 
 
 Then appropriating $600,000 for, among other things, the spolia- 
 tion claims and expenses of removal, (the former of which the United 
 States was to pay, to the extent of $300,000, if the Senate decided for 
 the Cberokees, and the latter of which they iiad agreed to bear,) did 
 not relieve the United States from paying the whole expenses of 
 removal, in case the $600,000 did not cover them as well as the 
 claims,, &g. 
 
 The United States were to remove and subsist the Cherokees, or pay 
 them a certian sum each in case they did not. That agreement was 
 positive. The 15th section, so far as it undertook to set-off the ex- 
 penses of removal and subsistence against the $5,000,000, was as much 
 objected to by the Cherokees, and liable to the same objection as the 
 attempt to set-off the spoliation claims. The moment it was deter- 
 mined that the award meant what it said, then it was settled that the 
 United States were bound to remove and subsist the Indians ; and the 
 part of the 15th article contrary to the Cherokee construction disap- 
 peared. 
 
 Did the Indians mean to take the $600,000 in lieu of the obligation 
 of the United States to remove and subsist them, in lieu of the spolia- 
 tion claims, and in lieu of the reservations and pre-emptions, and in 
 full for all? 
 
 If they did, then the United States had nothing to do with remov- 
 ing them. If they chose to do so and to subsist them, and the ex- 
 penses overran the $600,000^ (after paying for the reservations and 
 pre-emptions,) by what right could the United States take the excess 
 out of the $5,000,000? 
 
 The Indians did not mean to take it in full. Their position was 
 always, and always has been one and the same. It was "the 5,000,000 
 is the price of our lands, improvements, and ferries ; you must pay us 
 that, and in addition pay our claims for sp)oliations, and remove and 
 subsist us, as you agreed to do by the treaty of 1828." 
 
 The Senate assents to the justice of this and says : "It is so, and 
 therefore we appropriate $600^000 for those purposes." It was not 
 enough. Who was to bear the excess of expense? Clearly the United 
 States. 
 
 By the supplement, the Senate was to decide whether the $5^000,000 
 was meant to cover the spoliation claims and expenses of removal, and 
 if not, then such further provision was to be made therefor as might 
 appear to the Senate to be just ; and by way of such provision for 
 paying these claims, and removing and subsisting them, an appropria- 
 tion of $600,000 was to be made. 
 
 It is merely tlie common case of too small an appropriation, made 
 to pay an acknowleged claim. The Senate admits that the sum of 
 Mis. Doc. 94 4 
 
50 ■ J. K. EOGEES, 
 
 $5,000,000 did not cover tlie expenses of removal or the claims. That 
 admits that those claims and expenses are to he paid hy the govern- 
 ment. It proceeds to make provision for them thus admitted. To 
 do so it allows the Cherokees $600,000, to include (not to he in lieu 
 or satisfaction of) these expenses and claims, hut to he in lieu of the 
 reservations and pre-emptions and the $300,000 mentioned in the 
 treaty. It contemplates that a surplus will remain and provides how 
 it shall go. 
 
 Suppose Congress appropriates $30,000 to pay salaries of judges of 
 the Su[»reme Court, clerks, marshal, and contingent expenses, the sur- 
 plus to go to a particular lund, would any one imagine that this was 
 meant to he in lieu of these salaries and expenses ? 
 
 The arbitrator could not go heyond nor lall short of the submission. 
 The Senate was to decide whether the $5,000,000 was the price of the 
 land alone, or whether it included expenses of removal and spoliations. 
 "Whichever way you put the question it comes to the same. If it did 
 not include them it was because it was the price of the land alone. 
 One was a mere corollary of the other. The award said nothing about 
 those expenses and charges. The proposition is the award gives 
 $5,000,000 for the land alone ; ergo, it does no include payment of 
 claims or expenses of removal, and for the same reason it does not 
 include subsistence. 
 
 The moment the Senate decided that it did not include these, the 
 United States became bound to remove and subsist the Indians, under 
 the treaty of 1828, which remained in force. To respond to that 
 obligation and liability, the $600,000 is allowed. It could not have 
 been allowed, except as a, forced consequence of the recognition of the 
 obligation. It was asked solely on that ground, as such a consequence, 
 not as a new favor or gratuity. 
 
 This was so clear — it was so clear that the $5,000,000 covered 
 neither these claims for spoliations, nor expenses of removal, nor sub- 
 sistence — that, on the 12th of June, 1838, Congress appropriated the 
 sum of $1,047,067, in full for all objects specified in the eighth article 
 of the treaty of 1835, and to aid in subsisting the Cherokees for one 
 year, and provided that no part of this should be deducted from the 
 $5,000,000.— (5 Stat, at Large, 242.) 
 
 This was a clear legislative declaration that the expenses of removal 
 and subsistence loere to he borne by the United States, and could not 
 properly be paid out of, or deducted from, the $5,000,000. 
 
 The Secretary of War had decided that the government ougTit to 
 hear the expenses of removal. He thought that General Scott might 
 probably have doubted as to his power to agree to pay those expenses 
 and the expense of subsistence^ not that he would certainly have done 
 so ; and he submitted the question to Congress — clearly indicating his 
 own opinion to he, that the intention of the treaty was that the 
 United States should pay both. This was, by the act of 1838, clearly 
 admitted to be the correct view of the case. 
 
 On the 25th of May, 1838, Mr. Poinsett, considering the United 
 States bound to pay the subsistence, as well as expenses of removal, 
 estimated, on the call of the House, as follows : 
 
J. K. ROGERS. 51 
 
 Balance necessary for expenses of removal $435,900 00 
 
 Subsistence for 18,335 persons entitled, (including those 
 
 who had already emigrated,) and at $33 33 a head.... 611,105 55 
 
 1,047,005 55 
 
 [H. Eep., 123, 1st sess. 33d Cong., p. 9.] 
 
 The estimate was accepted, and Congress concurred in Mr. Poinsett's 
 conclusion, by appropriating as follows : — (Act June 12, 1838.) 
 
 They took the balance necessary for removal to be $435,900 00 
 
 Subsistence for 18,335 Indians, at |33 33^ each 611,167 00 
 
 And appropriated this gross amount 1,047,067 00 
 
 They provided that this should not be paid out of the $5,000,000 ; 
 and as if to show, still more conclusively, that the full extent of the 
 obligation to remove and subsist the Indians was acknowledged, the 
 act declares that the appropriation in full for other matters is only in 
 aid of the subsistence of the Indians, the amount required for which 
 was necessarily uncertain. What stronger recognition of the whole 
 obligation, to its extremest extent, could there be ? 
 
 The Senate committee, when the Senate was made arbitrator to 
 settle the legal question whether the subsistence ivas properly payable 
 out of the $5,000,000, say, (Rep. Com. Ind. Aflf., Aug. 8, 1850,) that 
 they think it should be borne by the United States. 
 
 They say that, by a strict construction of the treaty of 1835, it was 
 a charge on the $5,000,000 ; but they state reasons for deciding either 
 way. 
 
 The reasons they give /or this view of the treaty are : 
 
 1st. That it was so understood by the government at the time, and 
 that subsistence was enumerated, in the 15th article, amono* the 
 expenditures to be offset against the $5,000,000; * * * * " But 
 it was not so understood by the Cherokees. The Senate's award of 
 $5,000,000 " for their lands and possessions," was not so. And its 
 inclusion in the 15th article was to bind the Cherokees only in case 
 the Senate should hold that the $5,000,000 was not solely the price of 
 the lands, improvements, and ferries. So much of the 15th article 
 was conditional. 
 
 2d. The Secretary of War informed Ross, before the treaty was 
 ratified, that nothing would be allowed for removal and subsistence. 
 * * That was Ids construction. It was contrar}^ to the award, and 
 not the construction of the other contracting party. And the Senate 
 and Congress have since reversed his decision. 
 
 3d. That the treaty generally specifies what was to be borne by the 
 United States. * * * True ; and the removal and subsistence 
 were not so specified, because the parties disagreed as to them. 
 Whether they were to be borne or not was left to the Senate. 
 
 4th. That the whole history of the negotiation shows that the 
 $5,000,000 was all the United States were willing to pay for lands 
 
52 J. K. EOGEES. 
 
 possessions, indemnity, removal, &c, * * * & rj}-^^ negotiations 
 were professedly based on tlie award of the Senate. The President, 
 Secretary, and Commissioner misunderstood that award. They were 
 not the United States. What " the United States were willing to 
 pay," is not to be learned from what they said, but from the award 
 as interpreted by the Senate itself. 
 
 The agreement of the Senate to give $5,000,000 for the lands and 
 possessions, shows the contrary, beyond any question. 
 
 The invariable policy of the government shows the contrary ; and, 
 as the committee well say, the expense of removal and subsistence are 
 sacrifices which a simple remuneration for the j)rice of homes does not 
 compensate. 
 
 But the committee decide that the appropriation by the act of 1838 
 was a clear legislative affirmation of 1he terms offered by the Indians, 
 and acceded to by the Secretary of War — a new consideration offered 
 the Indians to induce them to abide by its terms. 
 
 We think it was more and different. It was a clear and distinct 
 admission of the correctness of the Secretary's opinion, that, by the 
 treaty itself, the United States was bound to bear all charges of re- 
 moval and subsistence. It was an authoritative interpretation of the 
 treaty, in accordance with the Cherokee construction. 
 
 So the Senate committee, in 1850, decided that the United States 
 was bound to pay the subsistence. 
 
 They found that it had been charged against the 
 
 $5,000,000 to the sum of $800,528 31 
 
 Provided for by act of 1838, (as per estimate) 611,105 55 
 
 Balance to be paid by the United States 189,422 T6 
 
 Thus charging the United States with the whole subsistence. 
 
 The Senate adopted this report, and so decided that the United 
 States was bound to pay the whole subsistence. 
 
 The act of Congress, (Sept. 30, 1850,) appropriated this amount, 
 and declared that it had been improperly charged to the treaty fund. 
 
 The resolution of the Senate declared the same, and that the Chero- 
 kee nation was entitled to the balance. 
 
 Treaty of August 6, 1846, (9 Stat, at Large, 871,) made ivith the Boss 
 party, the treaty party , and the old settlers. 
 
 Art. 3. Admits that the amounts allowed by the board of commis- 
 sioners " for rents, under the name of improvements and spoliations, 
 and for property of which the Indians were dispossessed under the six- 
 teenth article of the treaty of 1835," and for reservations under the 
 thirteenth article, were not justly chargeable against the $5,000,000 ; 
 and agrees to refund them. 
 
 Aet. 4. To ascertain the interest of the old settlers in the 
 $5,600,000, agreed to be paid by the treaty of 1835, all investments 
 and expenditures properly chargeable against that sum (as enume- 
 rated in article fifteen of that treaty) to be deducted, excluding all 
 
J. K. ROGERS 53 
 
 extravagant and improper expenditures ; and, as to the western 
 Cherokees, the expenses of removal and subsistence, commuted at 
 $53 33 each, to be charged against the $5,000,000. 
 
 Art, 9. The United States agree to make a fair and just settlement 
 of all moneys due the Cherokees, to be divided per capita under the 
 treaty of 1835 ; which settlement should embrace all sums paid for 
 improvements, &c., spoliations, removal, subsistence, investments, 
 &c. ; deducting all which from the sum of $6,647,067 — the balance to 
 be paid per capita to all " entitled to receive the same under the 
 treaty of 1835 and supplement of 1836, being all those then residing 
 east." 
 
 Art. 10. ''It is expressly agreed, that nothing in the foregoing 
 treaty contained shall be so construed as in any manner to take away 
 or abridge any rights or claims which the Cherokees, now residing in 
 States east of the Mississippi river, had or may have under the treaty 
 of 1835, and the supplement thereto." 
 
 Art. 11. The Cherokees contending that the year's subsistence tya-s 
 not chargeable against the $5,000,000, it was submitted to the Senate 
 to decide whether tne United States or the Cherokees were to pay the 
 subsistence; if the Cherokees, then whether it should be charged at 
 more than $33 33 a head, and whether interest should be allowed on 
 the amounts due the Cherokees. 
 
 Thus it was again submitted to the same body that had made the 
 original award, giving the Cherokees $5,000,000 for their land and 
 possessions, to determine whether, under that award and the treaty of 
 1835, the expenses of removal and subsistence of the Indians were 
 properly chargeable against the $5,000,000. It was the same ques- 
 tion submitted to them in 1836, and decided in favor of the Cherokees; 
 the same submitted to both Houses of Congress in 1838, when, by ap- 
 propriating every dollar estimated for such removal and subsistence 
 of every Cherokee Indian living, they broadly acknowledged the legal 
 obligation, to the entire and fullest extent. Again, the Senate was 
 called on to say whether, under the treaty of 1835, the Indians were 
 to remove and subsist themselves ; in other words, whether the obli- 
 gation on the United States to do so, created by the treaty of 1828, 
 was abrogated by the treaty of 1835. How could it have been so ab- 
 rogated, when the eighth article reiterates it ; and when, by ratifying 
 the treaty, the Senate decided that that of 1828 remained in full force, 
 and that the Indians were to have five millions for their lauds alone? 
 
 The Senate committee decided that, under the treaty of 1835 and 
 the act of 1838, the expenseof subsistence was not properly chargeable 
 to the treaty fund. The Senate abopted this decision. The United 
 States had elected this arbitrament. They were forever concluded by 
 the decision, in favor of all parties interested. It was a decision as to 
 the rights of the Indians under the Senate award made in 1835. It 
 bound and concluded the United States. It forever estopped them to 
 allege the contrary. 
 
 The act of Congress of 30th September, 1850, (9 St. at Large, 556,) 
 appropriates the sum of $189,422 76, reported by the Senate com- 
 mittee, and adopted by the Senate, with interest, declaring it to be for 
 expenses paid for subsistence, improperly charged to the treaty fund, 
 
54 J. K. ROGERS. 
 
 under the Senate award of 5tli September, 1850, and eleventh article 
 of treaty of 1846. 
 
 The Court thinks, that the fact that the United States agreed to pay 
 1,000 only, conclusively shows, that they intended thereby to limit 
 the extent of their obligation. 
 
 That does not seem to me to follow. It was not proposed to 'lubmic 
 to the Senate, whether its former award should be abrogated ; but 
 what it was. Upon their decision being made, the legal consequences 
 resulted. If they decided that the |5, 000, 000 was not exclusively the 
 price of the Cherokee lands and possessions, then the legal conse- 
 quence followed, that the United States was to bear the expense of re- 
 moval and subsistence, and pay the spoliation claims. 
 
 In case they should so decide, |600,000 was to be paid for these pur- 
 poses. If that was not enough, the obligation to pay the residue still 
 remained. 
 
 The United States could not be liable for even the |600,000, except 
 as a consequence of the decision that they were liable for the whole. 
 They were liable for all or none. The United States say, " We deny 
 that we are liable for any part. If we are, however, we appropriate 
 $600,000 to meet and comply with our obligation." The amount 
 being ibund insufficient, the obligation remains. It never was agreed 
 that the Cherokees should partly remove and subsist themselves. You 
 cannot satisfy an obligation by merely making an insufficient appro- 
 priation, when, to do so, you first recognize the obligation. 
 
 The Court thinks that there was no concession that the Cherokee 
 construction of the treaty was correct. 
 
 It seems to us that the United States have clearly conceded that : 
 
 1st. By agreeing to pay $600,000 in 1836 toivards the expenses of 
 removal and the spoliations. 
 
 2d. By agreeing to pay $1,047,067 for removal and subsistence, by 
 act of 1838, after Mr. Poinsett's opinion that the United States were 
 bound to pay the subsistence ; and by providing that this should not 
 be charged against the $5,000,000. 
 
 3d. By the decision of the Senate in 1850, on the very point of 
 construction and law, when their committee holding that, under the 
 treaty of 1835 and act of 1838, the United States were bound to pay 
 the subsistence, and therefore still owed on that score alone $189,422 76 ; 
 the Senate, first, by their decision and judgment, and Congress next, 
 by law, expressly, and in so many words, declared that this had been 
 improperly charged to the treaty fund. 
 
 The Court thinks, that on the face of the treaty of 1835 it is clear 
 that the expenses of removal and subsistence, and the claims for spolia- 
 tion, were to be borne by the treaty fund under article 15. * * We 
 do not think so, when the facts and circumstances are all known. On 
 the contrary, that article was framed to meet a contingency which did 
 not occur — that of a decision by the Senate adverse to the Cherokees. 
 
 The Court says, that before this treaty was ratified, a question arose 
 as to its construction, and caused the supplementary article. * * * 
 No ; the question was as to the construction of the previous award of 
 the Senate. 
 
 The Court says, that the supplement of 1836 contains no concession 
 
J. K. ROGERS. 5l^ 
 
 on the part of the United States that the Cherokee constructioa was 
 correct. That the 2fl article only states the fact that the supposition • 
 of the Cherokees e^is^eo?. * * Of course. The question to be set- 
 tled by the Senate was as to the meaning of the award prior to the 
 treaty ; and the treaty and supplement were framed to cover the con- 
 tingpncy of a decision either way. 
 
 The Court says, that if it had been meant that the United States 
 were to pay tlie whole expenses of removal and subsistence, there 
 would have been an express stipulation to that effect. * * There 
 was one as express as could be made, in the 8th article. The other 
 articles to the contrary were to meet the contingency of the Senate 
 holding otherwise. The real question submitted was, whether the 
 $5,000,000 was tor the land alone. 
 
 The Court, it seems to us, misapprehended the scope of the action 
 of Mr. Poinsett, and of Congress in 1838. The former, it seems to 
 us, gave it as his opinion, that the United States were legally bound to 
 remove and subsist the Indians. Congress did concur with him in 
 this opinion. They not only made " a simple appropriation" of the 
 money for removal and subsistence, over a million dollars, but they ex- 
 pressly provided that it should not come out of the $5,000,000 ; and 
 they declare that it is only in aid of the subsistence of the Cherokees. 
 How could there be any stronger recognition of the obligation resting 
 on the United States to remove and subsist the Cherokees ! 
 
 The Court says that the decision of the Senate, in 1850, was, that 
 " under the circumstances," theCherokees were entitled to $189,422 76 
 for subsistence, and that this was " professedly not founded upon the 
 construction of the treaty," but upon the peculiar circumstances con- 
 nected with the transactions which had occurred between the Ross 
 party and the United States. * * * We respectfully think the Court 
 errs here. The Senate decided that this sum of $189,422 76, excess 
 of one year's subsistance over $600 000, ivas improperly charr/ed to the 
 treaty fund by the accounting officers of the treasury. Under article 
 9 of the treaty of 1846, these officers, assigned to tliat duty by act of 
 7th August, 1848, were to show what moneys had been jjroperly ex- 
 pended under the treaty of 1835, in order to determine what was the 
 per capita payment under that treaty and the supplement of 1836. 
 
 The Senate therefore decided^ expressly, that in making such settle- 
 ment under that treaty, to see what was due under that treaty, no 
 part of the expense of subsistence was properly charged against the 
 Cherokees ; but the United States, having paid $600,000 of it, was 
 bound to pay the residue. 
 
 And this decision was not founded on what had occurred between 
 the Boss party and the United States. The committee decided, that 
 although, on the face of the treaty of 1835, hj strict construction, the 
 subsistence was to be paid out of the $5,000,000, against even which 
 conclusion they stated strong reasons, the act of 1838 was a clear 
 legislative affirmance of what was the original intention of the Senate 
 and of the treaty of 1835. The committee say that the Secretary of 
 War agreed to consider the expenses of removal and subsistence " as 
 intended by the treaty of 1835, to be borne by the United States," 
 and that Congress affirm his act, by providing that no part of the new 
 
56 J. K, EOGEES. 
 
 appropriation should be taken from the treafy fund ; and they addy 
 that the new api^ropriation for subsistence was " a discharge, jpro tanto. 
 of the obligation of the government to feed them/' and not final satis- 
 faction_, as in case of removal. 
 
 Mr. Poinsett had said that the request of the Cherokees, that the 
 expense of emigration should be borne by the United States, o^ight to 
 be granted, and an application made for such further sum as might 
 be required for tbat purpose ; and he only proposed to make such 
 further allowances as it was " believed were intended originally by 
 the Senate." 
 
 The committee was mistaken in saying that this was a new contract 
 made with the Koss party, or a new consideration to induce them to 
 abide by the treaty. It was a concession that their construction was 
 correct. 
 
 Whether it was or not, it bound the United States to remove all the 
 Cherokees then unremoved, and to pay the subsistence of all, removed 
 and unremoved, for one year. That was the meaning of the expres- 
 sion, "■ in full for all objects specified in the 8th article, and for the 
 further object of aiding in the subsistence of the Indians." It was to 
 be in full for the removal of all yet unremoved ; it was to aid in sub- 
 sisting all. It decided nothing as to previous expenses of removals^ 
 nor did it assume to. It did not say nor mean that the Cherokees 
 should bear them, and the United States should 7iot. But as to the 
 subsistence, it made the United States responsible for the whole. 
 
 Accordingly the Senate determined, in 1850, that it was improper 
 to charge any part of the subsistence against the $5^000,000. 
 
 They had previously determined the same thing as to removals and 
 spoliations, when they appropriated $600,000 tov/ards them. Nothing 
 more remained to be settled. 
 
 If the United States assumed, as we think they did, to remove and 
 subsist the Indians, then they must repay whatever they have taken 
 out of, or retained of, the $5,000,000, to cover expenditures for those 
 purposes. It was optional with the Indian to remove himself, or be 
 removed ; to subsist himself, or be subsisted. If he be removed and 
 subsisted himself, the government owed him |53 33. If he did not, 
 it was no concern of his how much it cost. Whatever it cost, the 
 United States had no claim for it against him or the Cherokee people. 
 
 As to the committee, if the Court is correct in saying that they were 
 appointed solely in the interest of the Cherokees, then the Cherokees 
 should have been left to settle and fix their compensation. Nothing 
 in the treaty authorizes the United States to do it^ or to take the 
 money of the Cherokees to pay them with. If they chose voluntarily 
 to fix and pay them their compensation, to the large amount of 
 $22,212 76, the presumption must be that it was for services rendered 
 the United States, who were not appointed to audit the accounts of 
 the committee against thier own nation, for services. There is no 
 possible ground on which they can demand that the Cherokees shall 
 repay what they thus paid without authority. 
 
 ALBERT PIKE, 
 
 Counsel for Petitioner. 
 
J. K. ROGERS. 57 
 
 To the honorahle the Court of Claims : 
 
 The decision of tlie Court in the case of J. K. Rogers and others ?;5. 
 the United States turned adversely on a point which was relied upon 
 by the claimant as an admitted and settled one by Congress, viz : that 
 by the supplementary articles of 1836 the United States was bound 
 to defray the expenses of removal and spoliation ; that if the sum of 
 $600,000 named therein was not sufficient, the excess, if any, was not 
 properly or legally deductable from the five million consideration as 
 the price for the " lands and possessions" of the Cherokees ; in proof 
 of which the act of June 12, 1838, was cited as a qualified interpreta- 
 tion by Congress to that effect. But the Court has been pleased to 
 rule otherwise, and decided, " to the extent of that sum" (viz : 
 $600,000) " the United States became bound, but no further." But, 
 continue the Court, "it may be said, and perhaps with justice, that 
 this did not amount to a concession of right on either side. It was 
 doubtless supposed that no further difficulty would arise. But, as 
 regards the United States, the most that can be justly urged is, that, 
 in view of the impressions of the Cherokees, they so far yielded to 
 them as to agree to allow them the additional sum of six hundred 
 thousand dollars. There can be no justice or propriety in saying that 
 they either did or designed to do more. On the contrary, the very 
 fact that they limited the sum conclusively shows that they intended 
 thereby to limit the extent of their obligation." 
 
 This, as we understand it, is the main foundation on which the de- 
 cision of the Court rests, and takes from us the act of June 12, 1838, 
 on which we relied^ as a fair and equitable interpretation by Congress 
 of an implied, if not express, obligation of the United States to pay 
 the expenses of removal and spoliations beyond the sum of $600,000, 
 stipulated in the supplementary articles, should these two expendi- 
 tures amount to more. 
 
 But as doubts were entertained at the time, and are still entertained 
 on this point, which doubts " did not amount to a concession of right 
 on either side, may we, without doing violence to the treaty, right- 
 fully, as to a known and admitted fact that existed before and at the 
 date of the treaty of 1835, inquire, what was the question again sub- 
 mitted to the Senate for their consideration and decision by the first 
 article of that treaty and the supplement thereto ? A very slight at- 
 tention to the history of the negotiation will place this subject in its 
 true light, and, if we are not very much mistaken, we think some- 
 thing more will be made to appear than the mere supposition of the 
 Cherokee people, " that the sum of five millions of dollars mentioned 
 in the first article of the treaty," " lo as not intended to include the cost 
 of removal, or the vcdue of certain claims ivhich many of their j^eople had 
 against the citizens of the United States ;" " but there is no concession 
 on the part of the United States that the supposition of the Cherokee 
 people was well founded." This, with all due deference to the Court, 
 is a question of fact, and not of supposition, as stated in the supple- 
 ment, and is susceptible of the clearest proof to the contrary. In 
 order, then, to discover with certainty the intention of the makers of 
 the treaty, may we with propriety go back to that history. Dwarris, 
 
58 ■ J E. ROGERS. 
 
 on Statutes, page 694, says: ''In the exposition of a statute, the 
 leading clue to the construction to he made is the intention of the 
 legislature, and that may he derived from different signs. As a primary 
 rule, it is to he collected from the words ; when the words are not 
 explicit, it is to he gathered from the occasion and necessity of the 
 law, heing the causes which moved the legislature to enact it. The 
 same rule, we take it, is applicable to the construction of treaties." 
 
 In order, therefore, to ascertain and determine this fact, we go, 
 first, to the original proposition submitted by the Cherokee delega- 
 tion, February 25, 1855, to the Secretary of War, an extract of which 
 is as follows : 
 
 "We propose, therefore, to meet the proposition of the President 
 for an arrangement on the basis of a gross sum being paid to our 
 nation for its title to all the lands lying within the charter limits of 
 Georgia, North Carolina, Tennessee, and Alabama, leaving to the 
 nation all the arrangements for indemnifying the individual rights of 
 its own citizens for their removal and ultimate residence, on the fol- 
 lowing terms as the general basis, to wit : That the United States 
 will stipulate to pay to the Cherokee nation east of the Mississippi, 
 for a cession of its territory, the gross sum of twenty millions of dol- 
 lars, and forthwith remove all the white settlers from that part of the 
 territory lying within the charter limits of North Carolina, Tennessee, 
 and Alabama, and to protect the Cherokees from tfie operation of the 
 State laws, and the exercise of jurisdiction over them upon the 
 Cherokee territory for five years, unless the Cherokees shall find it 
 convenient, and will remove voluntarily previous to that time ; and 
 shall protect the Cherokee citizens from being turned off" from their 
 possessions and improvements within the limits of Greorgia during 
 said term of years, and to cause such as have been dispossessed under 
 the laws of Georgia to be restored forthwith to possession." 
 
 " That the United States shall pay to the Cherokees for all losses 
 sustained by them from the acts of the adjoining States and their citi- 
 zens, in violation of the laws of the United States and treaties sub- 
 sisting with the Cherokee nation, and an indemnity for all just claims 
 arising out of the treaties of 1817 and 1819, for reservations of land 
 of which they have been deprived contrary to provisions of those 
 treaties, and secure to the Cherokee nation an indemnity tor the con- 
 tract stipulated with and secured by the treaty of 1819 to the Unicai 
 Turnpike Company. And, also, secure to the Cherokee nation such 
 annuities and school funds as have been stipulated and provided for 
 in former treaties, by investment of the same in some profitable stock, 
 to the credit and interest of the nation." — (Doc. No. 286, Ho. of 
 Eeps. 24th Congress, 1st session, pages 127 and 128.) 
 
 This was a proposition for a cession of the Cherokee territory for 
 the gross sum of twenty millions of dollars, and payment additional 
 for all losses from acts of the adjoining States'and their citizens, and 
 compensation for reservations of land arising out of the treaties of 
 1817 and 1819, &c. The determination of the Cherokees, as the latter 
 part of these proposals show, was to remove beyond the limits and 
 jurisdiction of the United States, and to purchase a territory for their 
 future residence from the government of Mexico. The fact is well 
 
J K. ROGERS. 59 
 
 known to the Cherokeee people, and is regarded by them as part of 
 their history. The terms of cession, however, were considered too 
 extravagant by the President, and on February 27, 1835, the delega- 
 tion addressed the Secretary of War the following note: 
 
 "Having been informed by Wm. H. Underwood, esq., and others, 
 that the President considers the terms of our propositions to be too 
 extravagant, we beg leave to remind him that he has often remarked 
 that he would grant us as liberal terms as the Senate or the friends of 
 the Indians would be willing to allow. We would, therefore, respect- 
 fully ask that our propositions be submitted to the Senate by the Presi- 
 dent, in order that the sense of the honorable body may be had on 
 them." — (Same doc, page 129.) 
 
 The request contained in this note to submit the " propositions " of 
 the delegation to the Senate, was not a new or strange one to the Presi- 
 dent, as he had often remarked to the delegation before, "that he 
 would grant (the Cherokees) as liberal terms as the Senate or the 
 friends of the Indian would be willing to allow." This latter propo- 
 sition of the delegation was acceded to by the President, upon one 
 condition and that was, that the delegation would give a written pledge 
 to abide the award of the Senate. This pledge was finall}^ given by 
 the delegation in a note addressed to the Secretary of War of Febru- 
 ary 28, 1835, to the following purport : 
 
 "Having submitted a proposition for a final adjustment of our diffi- 
 culties with the government of the United States, and understanding 
 that the President deems it to be too extravagant, we must beg that 
 the subject be referred to the Senate for its sense on the question ; the 
 President having often told us that he was disposed to treat us with 
 liberal justice, and that he would go as far as the Senate would allow 
 him in regard to money matters." 
 
 "We, therefore, trust that he will adopt this course. Being ex- 
 tremely desirous that this unhappy controversy might be speedily 
 adjusted, and deeply sensible of our dependent condition, and con- 
 fiding in the liberal justice of the United States government, we are 
 prepared, so far as ive are concerned, to abi e the award of the sense 
 of the American Senate upon our proposition, and to recommend the 
 same for the final determination of our nation." — (Ibid, page 141.) 
 
 Thus, the "propositions" of the delegation as contained in their 
 letter to the Secretary of War of February 25, 1835, being about to 
 be submitted by the President to the Senate for their decision as um- 
 pire, and both parties agreeing to abide the award of the Senate, the 
 delegation thought proper to memorialize the Senate on that behalf, 
 which they did March 3, 1835, an extract of which is here inserted : 
 
 "The undersigned, delegates of the Cherokee nation, beg leave to 
 represent to your honorable body that, since the presentation of the 
 memorial of their nation through them, on the 19th day of January 
 last, certain propositions have been made by them to the Executive, 
 as a basis by which they were willing to enter into an arrangement, 
 subject to the ratification of their nation, for a final termination of their 
 difficulties in relation to their affairs. And upon being informed that 
 those propositions did not receive the assent of the President, the dele- 
 gation then respectfully requested him, through the War Department, 
 
60 J. K EOGERS. 
 
 to submit the same before your honorable body, in order that the 
 sense of the Senate might be had on them, inasmuch as he had often 
 remarked to the delegation, that he was disposed to treat their nation 
 with liberal justice, and that he would go as far as your honorable 
 body would allow him in in money matters. On the morning of the 
 28th ultimo, the delegation, in compliance with a special verbal mes- 
 sage from the honorable Secretary of War, waited on him in his office; 
 and at that interview the honorable Secretary urged upon them the 
 necessity of their stating in writing to the department, before their 
 propositions could be submitted by the President, that so far as they 
 were concerned, they would abide the award of the American Senate 
 upon their propositions, and that they would recommend the same for 
 the final determination of their nation. The honorable Secretary then 
 left the delegation in his office to make up their minds on the subject, 
 until he would return from a visit to the executive department ; and 
 upon his return, the delegation had a letter prepared to meet his re- 
 quest, and after placing it into his hands, he assured the delegation 
 that their propositions would be cheerfully submitted, and that the 
 President had expressed himself to be still disposed to 'go as far as the 
 Senate.' Upon these distinct assurances and understanding, the dele- 
 gation took leave of the honorable Secretary." — (Ibid, page 125.) 
 
 This extract is a confirmation of all that has heretofore been stated 
 with regard to the fact of the submission by the President of the 
 "propositions" of the Cherokee delegation to the arbitrament of the 
 Senate. If any doubts, however, existed on this point, those doubts 
 were put at rest by the following extract of a letter to the Secretary of 
 War, bearing date March 6, 1835, and addressed to the delegation, in 
 which he formally communicates to them the decision of the Senate. 
 This decision was in the form of a resolution, and the words in which 
 it is written admit of but one construction, 
 
 "Gentlemen: In your letter of the 28th ultimo, you stated your 
 readiness to accept for yourselves, and to recommend to the Cherokee 
 kee people to accept such a sum for their claims east of the Mississippi 
 river asthe Senate of the United States might deem just. The Senate 
 have, by a resolution, stated as their opinion, that " a sum not exceed- 
 ing five millions of dollars should he paid to the Gherohee Indians for all 
 their lands and possessions east of the Mississippi river. ' ' 
 
 "The President wishes now, as he has always done heretofore, to 
 treat with you in a spirit of candor as well as liberality. He has 
 therefore directed me to communicate to you at once the resolution of 
 the Senate^ and to state his willingness to enter into a negotiation with 
 you for the cession of all your claims east of the Mississippi, upon con- 
 dition that the whole amount of the consideration to be given shall 
 not exceed the above mentioned sum. This you were before informed 
 should be done, and the pledge will be redeemed with fidelity." — (Ibid, 
 pages 142, 143.) 
 
 On the same day (March 6) the delegation responded as follows : 
 
 " Your letter of this date is received, and we regret that you did 
 not submit for our information the whole proceedings of the Senate in 
 relation to the .propositions which we had the honor of presenting for 
 the consideration of the President, and which, upon placing into your 
 
J. K. ROGERS. 61 
 
 hands our letter of the 28th ultimo, we were di.^tinctly informed by 
 you would he cheerfully submitted. To a full and clear understand- 
 ing of the entire action of the Senate on our case, we claim it as a 
 matter of justice to our nation, that the same should be laid before us ; 
 we must, therefore, respectfully ask the favor of you to have a full 
 transcript of the same made out and sent to us. We would also beg 
 leave to inquire whether we are to understand from your communica- 
 tion of this date, that the five millions of dollars resolved by the Senate 
 " should be paid to the Cherokee Indians for all their lands and pos- 
 sessions east of the Mississippi river, as embracing also the expenses 
 for transportation and subsistence in removal, and for subsistence for 
 twelve months after their arrival at their new homes ; for blankets, 
 guns, &c., or whether that sum is an ofier, as really appears i'rom the 
 resolution to be, only for the extinguishment of the Cherokee title to 
 the lands east of the Mississippi river, and for the houses and improve- 
 ments of the Cherokee inhabitants situated thereon ; and that the 
 United States will, in addition, pay for the expense of transportation 
 and subsistence in their removal, &c., the same as have been provided 
 for the general plan for Cherokee removals, which have been adopted 
 from the provisions of the treaty of the 6th of May, 1828, between the 
 United States and that portion of the Cherokees residing west of the 
 Mississippi river ; and, also, whetlier an additional extent of territory 
 will be added to the one already laid off for the Cherokees west of that 
 river, and of what extent. It is indispensably necessary to candor 
 and justice that all these points should be clearly understood on both 
 sides ; and it is utterly impossible for us to proceed further until we 
 do understand them." — (Ibid, pages 143-'4.) 
 
 The delegation, it must be admitted, were in justice and good faith 
 as much entitled to the benefit of the decision of the umpire as the 
 Secretary of War or the President of the United States, and should 
 have been furnished, as requested, with " a full transcript of the pro- 
 ceedings of the Senate" on which the award or resolution was adopted. 
 This was not only due to them, to a full understanding " of the entire 
 action of the Senate" on their case, but also as a matter of justice to 
 their nation, that the same should have been laid before them. That 
 this was not done is no fault of theirs, as will appear from the follow- 
 ing extract of a letter of the Secretary of War, addressed to them 
 March 7, 1835 : _ 
 
 " Gentlemen : I have just received your letter of this date. The 
 sum of five millions dollars, which is offered for your claims east of the 
 Mississippi, will, as I have already informed you, be in full for your 
 entire cession. The application of it will be such as you desire, a just 
 regard being had to individual rights. Nothing more will be paid 
 for removal or for any other purpose or object whatever. In giving 
 to you the full value of your property, the United States comply with 
 all the demands of justice upon them." 
 
 " This letter closes the intercourse in writing between us." — (Ibid, 
 page 145.) 
 
 The statement contained in the above letter, and the refusal to fur- 
 nish the delegation with a transcript of the proceedings of the Senate 
 in their case, together with the threat verbally made by the Secretary 
 
62 J. K. ROGERS. 
 
 of War to negotiate with another and unauthorized delegation then 
 present in the city, as indicated in the protest contained in the latter 
 part of the last letter of the delegation to the Secretary of March 9, 
 1835, broke off the negotiation in these words : 
 
 " And if the department persist in the unexpected and most extra- 
 ordinary course which you intimated to us this morning was about to 
 be adopted, that is, of entering into a treaty with John Ridge and 
 others, unauthorized individuals who are here, for an entire cession 
 of the Cherokee lands, &c., east of the Mississippi river, and providing 
 for the application of the money proposed to be given for the same, 
 the great object, so earnestly pressed on both sides, for reconciliating 
 and restoring harmony and good feeling of all, and thereby termi- 
 nating the Cherokee difficulties satisfactorily, will most assuredly be 
 defeated by your own acts. And^ as the duly authorized delegation 
 of the Cherokee nation here, we do most solemnly protest against any 
 such arrangements being entered into with those individuals. In 
 your letter of the '7th instant, closing all further intercourse in writing 
 between us, you distinctly informed us that the application of the 
 $5,000,000 which is offered for our lands and possessions east of the 
 Mississippi river will be such as we desire — a just regard being had to 
 individual rights. Well, then, if the nation will consent to treat and 
 accept of the sum offered, let its own wishes in regard to the applica- 
 tion be consulted and adopted — a just regard being had to individual 
 rights. And on the part of the delegation here, we again repeat that 
 we are prepared to comply in good laitli with every promise which 
 we have made to the department on the subject, provided you do the 
 same on your part, and will not throw any obstacles in our way." — 
 (Ibid, pages 145-'6.) 
 
 It is to be regretted, even at this late period, that the delegation 
 was not furnished with a full transcript of the action of the Senate in 
 their case by the Secretary of War, as requested by them. This 
 request, no doubt, would have been complied with by the Secretary 
 had the injunction been removed by the Senate from their proceedings 
 in that case. Then there could have been no just cause on their 
 part for refusing to enter into a treaty at that time, by which all 
 doubts would have been removed as to the true interpretation of the 
 two terms used in the resolution of the Senate — " lands and posses- 
 ' sions" — to say nothing of the money that would have been saved to 
 the United States, and the many, very many, evil and devastating 
 consequences resulting from it to the Cherokee people. But the in- 
 junction was not removed, and has not been, as we are informed, up 
 to the present day. Therefore, we are left to infer that the Senate 
 intended to do just what their resolution says, viz: that "a sum 
 not exceeding five millions of dollars should be paid to the Cherokee 
 Indians for all their lands and possessions east of the Mississippi river." 
 The resolution, as reported by the Secretary of War in his letter of 
 March 6, 1835, to the delegation, and as inserted in the 1st article 
 of the treaty of 1835, is a correct transcript or copy as we are told, by 
 those who are in a position most likely to know, is all that the jour- 
 nal shows of the proceedings of the Senate on its adoption. 
 
 If, therefore, the fact be true as stated, there can be no doubt as to 
 
J K EOGERS. 63 
 
 the legal interpretation of the words used in the resolution ; and it 
 strikes us that the Secretary of War was wrong in the construction 
 which he placed upon them. Five millions of dollars was the ulti- 
 matum authorized to be given by the Senate. For what purpose, we 
 would ask, was that sum of money to be given ? The answer is found 
 in the resolution itself, viz : "for all the lands and possessions of the 
 Cherokee Indians east of the Mississippi river." In the absence, then, 
 of all proof to the contrary, the delegation had the right, as we now 
 have, to insist upon the legal interpretation of those terms. Bouvier, 
 in his Law Dictionary, says of land: " This term comprehends any 
 ground, soil or earth whatsoever, as meadows, pastures, woods, waters, 
 marshes, furze and heath. It has an indefinite extent upwards as well 
 as downwards ; therefore land legally includes all houses and other 
 buildings standing or built on it, and whatever is in a direct line be- 
 tween the surface and the centre of the earth," &c. The meaning of 
 both terms are expressed in one, and as ^' lands and possessions" go 
 together, and land being a common law term, Dawris on Statutes, 
 page 694^ says : '' If a statute make use of a word, the meaning of 
 which is well known, and has a certain definite sense at the common 
 law^ the word shall be expounded and received in the sense in which 
 it is-understood at the common law." 
 
 The Senate having use in their award the terms " lands a,nd jjosses- 
 sions," and having left no clue or record evidence to show that they 
 intended to convey any other meaning than the terms signify, we 
 claim the benefit of their legal interpretation to the very letter. Does 
 "lands" signify "removal and spoliations," or does "possessions" 
 include '■' subsistence f" Certainly not. Then we contend that the 
 implication of the Secretary cf War to the contrary, was wholly un- 
 tenable and inadmissable, and, therefore, his instructions to the com- 
 missioners who finally negotiated the treaty of NewEchotawas given 
 upon a mistaken supposition, as we shall be able to show by unques- 
 tionable proof. 
 
 It is proper here to state, that notwithstanding the letter of the dele- 
 gation of March 9, 1835, to the Secretary of War, protesting against 
 his negotiating with John Ridge and others then present, that protest 
 was disregarded, and a treaty concluded with them on the 14th day of 
 March, 1835, and sent out to the nation for ratification. Accompa- 
 nying the treaty was an address or talk to the Cherokee people from 
 General Jackson himself, in which he says : 
 
 " The whole subject has been taken into consideration, and an ar- 
 rangement has been made which ought to be, and I trust will be, 
 entirely satisfactory to you. The Senate of the United States have 
 given their opinion of the value of your possessions, and this value is 
 insured to you in the arrangement which has been prepared. Mr. 
 John Ross, and the party who were with him, expressed their determi- 
 nation to accept, as far as they were concerned, such a sum as the 
 Senate might consider just, and promi.^ed to recommend and sujiport 
 the same in your general council. The stipulations contained in this 
 instrument are designed to afibrd due protection to private rights, to 
 make adequate provision for the poorer class of your people, to provide 
 for the removal of all, and to lay the foundation of such social and 
 
64 ' J. K. ROGERS. 
 
 political establishments in your new country as will render you a 
 happy and prosperous people. Why, then, should any honest man 
 among you object to removal ? The United States have assigned to 
 you a fertile and extensive country, with a very fine climate adapted 
 to your habits, and with all the other natural advantages which you 
 ought to desire or expect." 
 
 " I shallj in the course of a short time, appoint commissioners for 
 the purpose of meeting the whole body of your people in council. 
 They will explain to you more fully my views, and the nature of the 
 stipulations which are offered to you." 
 
 " These stipulations provide — 
 
 "1st. For an addition to the country already assigned to you west 
 of the Mississippi, and for the conveyance of the whole of it, by patent, 
 in fee simple, and also for the security of the necessary political 
 rights, and for preventing white persons from trespassing upon you." 
 
 " 2d. For the payment of the full value to each individual of his 
 possession in Georgia, Alabama, North Carolina, and Tennessee." 
 
 " 3d. For the removal, at the expense of the United States, of your 
 whole people ; for their subsistence for a year after their arrival in 
 their new country, and for a gratuity of one hundred and fifty dollars 
 to each person." — (Doc. 286, pages 43, 44, 24th Congress, 1st session. 
 House of Representatives.) 
 
 Now, General Jackson either designed to do what he said he would 
 do, or he intended to practice a fraud. We know he is dead, but his 
 language lives, and who is bold enough at the present day to say that 
 he designed or intended the latter, where he promised the former? 
 No one, we presume, would pretend to say so, and his words were 
 stated just as they appear, by his commissioners through their inter- 
 preter, to the Cherokee people assembled, and they so understood 
 them. Tbat the Senate intended to give the five millions of dollars 
 named in their resolution, for the " lands and possessions" of the Chero- 
 kees, there can be but little doubt. The fact will be made apparent 
 by a letter addressed to the President, by three senators who voted 
 for the resolution in executive session. This letter we shall have oc- 
 casion to notice more particularly when we come to consider the sup- 
 plementary articles of the treaty. 
 
 In compliance with the promise of the President to appoint com- 
 missioners for the purpose of meeting the " luhole body" of the Chero- 
 kee people " in cou,ncil," said commissioners were appointed, as the 
 following letter of instruction from the Secretary of War, dated, April 
 2, 1835, and addressed to Rev. John F. Schermerhorn, Utica, New 
 York, and Gov. William Carroll, Nashville, Tennessee, will show : 
 
 " Gentlemen: I have the honor to inform you that the President 
 has appointed you commissioners to negotiate with the Cherokee 
 Indians east of the Mississippi river. 
 
 A copy of the arrangement recently made between some individuals 
 of the Cherokee tribe and Mr. Schermerhorn is herewith enclosed, 
 together with copies of certain other papers, which may be useful to 
 you in the performance of your duties. I enclose also the address of 
 the President of the Cherokee people, which you will cause to be read 
 
J. K. ROGERS. 65 
 
 to them in open council, and enforce by such topics as may occur to 
 
 You are aware of the importance of removing these Indians, and are 
 acquainted generally with the history of our intercourse with them, 
 and of the efforts which have been made for the termination of the 
 difficulties in which they have been placed. I need not, therefore, 
 enlarge upon these subjects. 
 
 The provisional treaty contains the general terms which the Presi- 
 dent is disposed to offer to the Indians, and he is desirous that the 
 Cherokee people should assent to this arrangement without making 
 any change in its stipulations. Still, however, he would not object 
 to such alterations as might be deemed essential by them, and which 
 would not conflict with those principles which he deems indispensable 
 to a proper settlement of this difficult and protracted affair. I shall 
 proceed to state to you those conditions, from which the President 
 will not depart. Within these limits, if it will tend to conciliate 
 the Indians, and to insure their assent to a treaty, you are authorized 
 to make such changes as you may deem proper and as they may 
 demand. 
 
 The Senate have, by resolution, stated it as their opinion, '' that a 
 sum not exceeding five millions of dollars ($5,000,000) might probably 
 be allowed to these Indians for the cession of their entire claims east 
 of the Mississippi river." 
 
 With all due deference to the Secretary of War, we beg to say there 
 are no such words as '^ 'probable" and '■^claims" in the resolution of 
 the Senate, and we have italicized them to indicate the fact. The 
 resolution as communicated by the Secretary of War, in his letter of 
 March 6, 1835; to the Cherokee delegation, and as inserted in the 1st 
 article of the treaty of 1835, is in these words, viz : " That a sum not 
 exceeding five millions of dollars shall be paid to the Cherokee In- 
 dians for all their ' lands and possessions ' east of the Missisippi river. ' " 
 How " lands" and " possessions" can be construed or even tortured to 
 mean " might probably be allowed to these Indians for the cession of 
 their entire claims east," we leave it for the Secretary of War and 
 those who agree with him to show. We know of no rule, either legal 
 or arbitrary, that will admit of such construction. The President, in 
 his talk to the Cherokees, in speaking of the resolution of the Senate, 
 says : " The Senate of the United States have given their opinion of 
 the value of your possessions ;" thus showing that he understood the 
 resolution of the Senate differently ; and the original proposition of the 
 Cherokee delegation of February 25, 1835, on which the action of the 
 Senate was predicated, does not warrant or justify such an interpreta- 
 tion. How, then, is the remainder of the Secretary's instructions to 
 be justified ? He says : 
 
 "Prior to the adoption of this resolution, Mr. John Ross and his 
 party, who were then in this city, avowed their determination to abide 
 by the decision of the Senate on this point, and to accept such a con- 
 sideration as that body might deem reasonable. After the Senate, 
 however, had acted upon the matter, that party declined acquiescence^ 
 and would not enter into an arrangement, as they had before promised 
 to do. Among the papers enclosed to you^ you will find those neces- 
 
 Mis, Doc. 94 5 
 
$$ ' 3 K EOGEES. 
 
 sary to a full knowledge of this affair. You will, therefore, under n(t 
 circumstances increase the amount of the consideration to be given. 
 If, however, the Indians should prefer to receive the whole amount^ 
 viz: five millions of dollars, in lieu of the sum of four millions five 
 hundred thousand dollars, and of the additional tract west of the Mis- 
 sissippi, estimated at eight hundred thousand acres, you are at liberty 
 to give them the whole sum in money, and to withhold this additional 
 tract." 
 
 We have already shown the difference in phraseology and meaning 
 of the resolution actually passed by the Senate, and the terms used by 
 the Secretary of War, in his instructions to the commissioners, pur- 
 porting to give the meaning of that resolution. The terms "■lands" 
 and "possessions," as remarked, will not admit of the construction 
 attempted to be put upon them by the Secretary, without doing vio- 
 lence to their plain common sense meaning, to say nothing of their 
 legal signification. Neither will the original proposition of the dele- 
 gation authorize such a construction. The proposal was for a cession 
 of the Cherokee territory east of the Mississippi river, for the gross 
 sum of twenty millions of dollars ; leaving to the nation all the ar- 
 rangements for indemnifying the individual rights of its own citizens, 
 for their removal and ultimate residence, &c. ; and, in addition to this, 
 that the United States should pay the Cherokees for all losses sus- 
 tained by them from the acts of the adjoining States and their citi- 
 zens, in violation of the laws of the United States and treaties sub- 
 sisting with the Cherokee nation, and all just claims arising out of 
 the treaties of 1817 and 1819 for reservations of land, &g. This was 
 the substance of the proposals submitted by the delegation to the 
 Secretary, and declined by the President, on account of their extrava- 
 gance, but which, upon agreement, was finally submitted by the Presi- 
 dent for the arbitrament of the Senate — the delegation agreeing to 
 abide the award of the Senate on their proposition, and to recommend 
 the same for the final determination of their " nation." The decision 
 of the Senate I'ell far short of twenty millions of dollars, and author- 
 ized o?iZ// the payment of one-third of that sum to the Cherokee na- 
 tion. When the result of the decision of the Senate was communi- 
 cated to the delegation by the Secretary of War, they did not decline 
 acquiescence, as stated by him in his instructions to the commission- 
 ers, but simply stated that "to a full and clear understanding of the 
 entire action of the Senate on their case, they claimed it as a matter 
 of justice to their nation that the same should be laid belore them, 
 and respectfully asked the favor of having a full transcript of the 
 same made out and sent to them." They also further requested to be 
 informed whether the five millions resolved by the Senate " should 
 be paid to the Cherokee Indians for all their lands and possessions 
 east of lie Mississippi river," "as embracing also the expenses for 
 transportation and subsistence in removal, and for subsistence for 
 twelve months after their arrival at their new homes, for blankets, 
 guns, &c ; or whether that sum is an offer, as really appears from the 
 resoluiion to be, only for ilie extingnishment of the Cherokee title to the 
 lands east of the Mississippi, and, for the houses and improvements of 
 the Cherokee Inhabitants situated thereon?" 
 
J. K. ROGERS. 67 
 
 To tliis tlie Secretary responded: "The snm of $5,000,000 will, 
 as I have already iuformed you, be in full for your entire cession. 
 Nothing more will be paid for removal or for any other purpose or 
 object whatever. This letter closes the intercourse in writing between 
 us." We need not recapitulate what we have heretofore stated as the 
 result of this correspondence. 
 
 The main question to be considered now is, which of the parties 
 were correct in their interpretation of the sense and meaning of the 
 resolution of the Senate? In order to determine and settle the ques- 
 tion fairly, we must go to the propositions of the commissioners made 
 1o the Cherokee people in council, their rejection of them, and the 
 final negotiation of the treaty of NewEchota, of 1835, by a minority of 
 the people. 
 
 On the 17th day of October, 1835, the commissioner on the part of 
 the United States addressed proposals of a treaty " to the chiefs, head- 
 men, and luarriors of the Cherokee Indians in general council assembled," 
 from which we make one or two extracts: 
 
 " The commissioner has also to observe, for the information of the 
 general council, that the Cherokee delegation who visited Washing- 
 ton last winter, consisting of Messrs. John Ross, R. Taylor, Wm. 
 Rogers, Daniel McCoy, and Samuel Gunter, who were authorized by 
 a full power of attorney, as your agents, to settle all your difficulties 
 with the United States, and enter into a treaty for the cession of your 
 whole country, did agree to sell the same to the United States for 
 such a sum as the Senate of the United States should aivard. The 
 Senate fixed the price at five millions ; and when the President called 
 upon them, through the Secretary of War, to submit propositions as 
 to the manner in which they wished this amount paid and disposed 
 of, for the purpose of embracing the same in a treaty, they declined, 
 OMd proposed that this matter should, he referred to the Cherokee na.tion 
 in general council to deliberate and determine on the subject, in order to 
 prod/uce harmony and good feeling am.07ig themselves, and to prevent any 
 wyiif't imputations or prejudices against themselves or others. 
 
 "Sliould there be any important points of difference between the 
 Glierokees and commissioners in regard to the award of the Senate, 
 they can be included in a separate and conditional article, by ivhich 
 they ivill again be brought before the President and Senate for their final 
 determination. 
 
 "The commissioners, therefore, wish to know distinctly whether 
 the people of the Cherokee nation, at this general council, will enter 
 into negotiations for a treaty on the basis of the five millions of dol- 
 lars awarded hy the Senate, and which your delegation, duly author- 
 ized with a full power of attorney, agree for themselves to accept, and 
 urge upon their people to close their cUlJiculties with the United States hy 
 a treaty, or whether they are determined to do nothing on the subject." 
 — (Ibid., pages G5, 60, 67.) 
 
 The answer of the Cherokee peo]de to the above is as f)llows : 
 
 "We, the people of the Cherokee nation, in general council as- 
 sembled, do hereby solemnly protest against selling our country on the 
 basis of the Jive millions of dollars, and ivill never sanction any such 
 reedy. We approve of and confirm the nomination and appointment 
 
68 J. K. EOGEES. 
 
 of John Boss, principal chief," and others named, '^as our repre- 
 sentatives to the United States government; also, of the powers in 
 them vested under the resolutions of the general council annexed ; 
 and we unite with the committee and council in forbidding any dele- 
 gation to treat with the general government of the United States of 
 North America, excepting the delegation now formally and openly con- 
 firmed by us, the people of the Cherokee nation. 
 
 " Given under our hands at the national council ground, at Bed 
 Clay, this 24th day of October, 1835."— (Ibid., page 80.) 
 
 On the 27th October, 1835, Mr. Ross informs the commissioner : 
 
 "Sir: By a resolution passed yesterday, (October 26,) I am in- 
 structed by the national committee and council, in general council 
 convened, to acquaint you that twenty citizens of this nation, nomi- 
 nated by the people in open assembly, and by them publicly appointed 
 as a delegation, fully empowered to treat finally with the general gov- 
 ernment of the United States, here or at Washington city, are now 
 ready to meet any commissioner upon the subject who can produce 
 adequate credentials. If, therefore, you desire to communicate in 
 relation to this matter, I, as one of the delegation thus appointed, am 
 prepared to give notice of any interview for that purpose between you, 
 my associates^ and myself, in the committee room, at any hour which 
 may best suit your convenience." 
 
 On the same day, (October 27,) the commissioner responded : 
 
 " Gentlemen: In answer to your communication of this morning, 
 I assure you I will meet you, with much pleasure, at your committee 
 room, at 3 o'clock p. m. to-day, as the commissioner on the part of 
 the United State to treat with the Cherokees east." 
 
 From the proposals of the commissioner submitted to the delegation 
 at this interview, it is only necessary for our purpose to make but a 
 single extract: 
 
 " But whereas a question has arisen between the commissioner and 
 the 8 gents of the Cherokee nation, whether the Senate of the United 
 States intended to include in the award also the Just claims of the 
 Cherokee people against the United States, or the price of the land only, 
 it is therefore agreed that that matter shall be again referred to the Senate 
 for their determination ; and in case the claims ivere not intended to he 
 included, then, in addition to the five millions, there shall be allowed 
 
 dollars for claims ; but if the Senate shall not allow this 
 
 additional amount, it shall not invalidate this treaty." — (Ibid., pages 
 87 and 88.) 
 
 From the reply of the delegation of the 28th of October, 1835, to 
 the proposals of the commissioner, a single extract will suffice : " But, 
 upon examining the articles you have submitted to them as the basis 
 of the treaty you have to propose, they can find in them no real 
 variation from those against which the Cherokee nation have already 
 openly and formally protested. It is true you offer to insert an ad- 
 ditional clause, allowing a consideration for ' the just claims of the 
 Cherokee people.' But this is only conditional. You make it de- 
 pendent upon the approval of the Senate, who may disapprove, and 
 who, indeed, by the explanation we have ourselves received in writing 
 rom the Secretary of War, are sure to disapprove. And you state 
 
J. K ROGERS. 69 
 
 that neither yourself, nor even the President, can pledge yourselves for 
 thisor any other change, without the sanction of the Senate.'' — (Ibid., 
 pages 90, 91.) 
 
 On the 29th October the commissioner replied: "Gentlemen: I 
 have just received your communication of yesterday, and it will require 
 some time to answer it, which I shall do with })leasure. I have only 
 now to request your delegation to meet me at your committee room 
 to-mori'ow morning at 1 o'clock a. m." 
 
 On the same day, (October 29,) the delegation replied, through 
 John Ross, to the commissioner : " Sir : The delegation have made 
 arrangements to depart, in order to preparefor their journey to Wash- 
 ington ; but it will give me great pleasure to meet you to-morrow at 
 the hour you desire." — (Ibid., page 92.) 
 
 At this interview the commissioner was more specific in his propo- 
 sals, without, however, enlarging the basis of negotiation, and again 
 renews the provisional proposition : " But whereas a question has 
 arisen between the commissioner and the agents of the Cherokee 
 nation whether the Senate of the United States intended to include in 
 the award also the just claims of the Cherokee people against the 
 United States, or the price of the land only, it is thei'efore agreed that 
 that- matter shall again be referred to the Senate for their determina- 
 tion ; and in case the claims were not intended to be included, then, in 
 
 addition to the $5,000,000, there shall be allowed for claims ; 
 
 but if the Senate shall not allow this additional amount, it shall not 
 invalidate this treaty." — (Ibid., page 94.) 
 
 On the 30t]i of the same month, the commissioner informs Mr. Ross 
 that '''the commissioners are instructed to convene a council at New 
 Echota at such time as they think best, and G-overnor Carroll has 
 requested and authorized me to call said council when I deem most 
 expedient. You are therefore hereby notified that the commissioners 
 will meet the Cherokee people in general council on the third Monday 
 in December next ; and you are requested to assemble the people 
 accordingly for the purpose of negotiating and concluding a treaty 
 with the United States," — (Ibid., page 93.) 
 
 To the above, the delegation replied on the 31st of October, 1835 : 
 
 " Sir : Neither your last communication in writing, nor that which 
 you did us the honor to accompany it in person, appear to disclose 
 any views materially different in fact from those upon which we have 
 already decided, although there may be some difference in form. We 
 are, therefore, compelled once more to assure you that our former 
 answer must be considered as final, and our arrangements requiring 
 despatcl'i, we have closed our meeting as a delegation, and shall do no 
 further business until we arrive at Washington." — (Ibid., pp. 99, 100.) 
 
 Thus terminated the negotiation between the commissioner and 
 the legally constituted authoritiesof the nation ; and the only alternative 
 left to the Cherokee people to save themselves from expulsion at the 
 point of the bayonet by the States was to meet the commissioners at 
 New Echota at the time designated, and make the best and only treaty 
 that could be obtained from them under the circumstances. Conse- 
 quently, a minority, and a bare minority, met the commissioners at 
 that place, and finally negotiated the memorable treaty of the 29th of 
 
70 • J. K. EOGEES. 
 
 December, 1835. By reference to the journal of the conncll, it will 
 be seen that the treaty was not to be submitted to the Senate until after 
 the fact was fully ascertained with regard to the payment of claims, as 
 the following extract will show : 
 
 " December 28, 1835. — The council assembled at the council house, 
 and, in the absence of Mr. Gunter, appointed Johnson Rogers 
 chairman. 
 
 " The committee reported that they had carefully examined the 
 propositions for a treaty, and conferred with the commissioner on some 
 points of difference as to spoliation claims, pre-emption rights, and 
 reservations under former treaties. And it was agreed by the com- 
 missioner that there should be a certainty on the subject of claims 
 before the treaty was submitted to the Senate. And, also, that a 
 committee should be appointed of the Cherokee people to recommend 
 suitable persons for pre-emption privileges, and to transact and settle 
 all the business of the nation under this treaty with the United 
 States. "~(Doc. No. 286, p. 113.) 
 
 The treaty was formally signed on the 29th, the first article con- 
 taining a provision that the question of claims should be again submitted 
 to the Senate for their consideration and decision. In order, therefore, 
 to ascertain with certainty the question that was again to be submitted 
 to the Senate, it became necessary to show not only how the matter 
 of arbitrament was first brought before the Senate, but also to give 
 the contemporaneous history of the negotiation of the treaty^ based as 
 it was on the resolution or av/ard of the Senate. This duty has been 
 carefully and faithfully performed, and there can be, it seems to us, 
 but little difference of opinion, if any, as to what the (j[uestion was 
 that was again to be submitted to the Senate. The original propositions 
 of the delegation that were before the Senate when the resolution was 
 adopted ; the language of the resolution itself ; the address of Gen. 
 Jackson to the Cherokee people, and provisional articles inserted in 
 the proposals of the commissioners to treat, to say nothing at present 
 of the agreement contained in the journal of the council who negotiated 
 the treaty ; — all goes to^prove with unerring certainty the question 
 that was again submitted to the Senate. 
 
 Having stated that the resolution as reported by the Secretary of 
 War, in his letter of March G, 1835, to the Cherokee delegation, and 
 as inserted in the 1st article of the treaty, is a correct transcript or 
 copy, and the Senate having left no clue or record evidence to show 
 that they intended to convey an)^ other meaning than the terms of the 
 resolution signify, we shall claim the full benefit of their legal in- 
 terpretation : this we now do to the very letter, upon the ground that 
 the resolution is the decision of the Senate on the question of arbitra- 
 ment ; and said resolution being inserted in the treaty, necessarily be- 
 comes part and parcel of it, if not the very treaty itself, and both 
 parties are bound by its terms. 
 
 The agreement of the commissioner (as the journal of the council 
 shows) was, that there should first "be a certainty on the subject of 
 claims before the treaty was submitted to the Senate" for ratification. 
 How was that ^^ certainty" to be ascertained? The injunction had 
 not been removed from the proceedings of the Senate, and it being 
 
J. K ROGERS. 71 
 
 impossible for the treaty to be submitted until the fact was kno'.vn^ it 
 was finally suggested that a statement from some of the senators who 
 voted for the resolution in executive session would be quite as bind- 
 ing on the parties as if the question were again referred, and formally 
 decided by the Senate. Tlie suggestion was acquiesced in ; conse- 
 quently, on the 29th day of February, 1835, three of the senators who 
 voted for the resolution, viz: Mcjssrs. Cuthbert and King, of Georgia, 
 and Mr. King, of Alabama, addressed the President the following 
 note : 
 
 -' To the President of the United Slates : 
 
 ^'We have no hesitation in stating it to be our impression, sir, that 
 the Senate of the United States did not intend that the allowance for 
 spoliations or the expenses of removal should be deducted from the 
 amount of five millions recommended to be offered to the Cher(»kees as 
 the price of their territory. It is also our confident opinion that the 
 Senate will readily add six hundred thousand dollars to the sum of 
 five millions to meet these two expenditures. 
 ^'With the greatest respect j 
 
 "A. CUTHBERT. 
 ''JOHN P. KING. 
 "WILLIAM R. KING. 
 "February 29, 1836." 
 
 This letter and the instructions of the Secretary of War to tlie com- 
 missioners were obtained from the executive clerk of the Senate, 
 copies of which are herewith submitted. 
 
 The opinion thus expressed and adopted was clearly in favor of the 
 construction insisted upon by the Cherokees, and against that at- 
 tempted to be enforced by the Secretary of War and those acting 
 under him, and settled all doubts as to what was the true interpreta- 
 tion of the terms used in the resolution — " lands and possessions" — in 
 favor of the Indians. The question being thus definitely settled, 
 the supplementary articles were added, not upon the principle, as 
 stated in the 2d article, " whereas the Cherokee people have sup- 
 posed that the sum of $5,000,000^" for that question was no longer a 
 supposable one ; but was a settled and fixed fact in favor of the Cher- 
 okees, "that the Senate of the United States did not intend that the 
 allowance for spoliations or the expenses of removal should be de- 
 ducted fvoxn the amount of $5,000,000 recommended to be offered to 
 the Cherokees as the j^nce of their territory." The $5,000,000, then, 
 being intended by the Senate " a.s the price of the Cherokee territory" 
 only, the Secretary of War and those under him, as we have before 
 remarked, were not only wrong in attempting to force a construction 
 repugnant to the legal interpretation of the words in the resolution, 
 but the commissioner was also guilty of perpetrating a gross fraud 
 upon the subsequent opinion of those senators as expressed to the 
 President, by imposing on the Cherokees the supplementary articles 
 as they now stand for that ojiinion; for we unhesitatingly state noio 
 and /oret;er, that their letter was never exhibited to the Cherokees by 
 the commissioner, and they never saw it until years afterwards, in 
 
72 J. K. ROGERS. ' 
 
 the printed documents of the Senate. If they had seen it previonslj 
 to entering into the supplement, one article instead of three would 
 have heen quite sufficient to cover what those senators state in the 
 conclusion of that letter, viz: "It is also our confident opinion that 
 the Senate will readily add six hundred thousand dollars to the sum 
 of five millions to meet these two expenditures.'' That this letter was 
 before the Senate at the time they ratified the treaty and supplement, 
 is apparent from the fact of its being found among the printed docu- 
 ments of that body. How does its language correspond with that 
 used in the 3d article of the supplement? By placing the two in jux- 
 taposition, there can be no difficulty in discovering a wilful misrepre- 
 sentation on the part of the commissioner, by lugging into said arti- 
 cle objects foreign to the letter. Why add, "and all claims of every 
 nature and description against the government of the United States 
 not herein otherwise expressly provided for, and to be in lieu of the 
 said reservations and pre-emptions," when he must have known the 
 $600,000 was intended to meet two expenditures 07ily, viz : spoliations 
 and the expenses of removal ? 
 
 Is it not clear, therefore, if $600,000 was not sufficient to cover 
 spoliations and the expenses of removal, the excess, if any, could not 
 be ^^ deducted''' from the five millions authorized by the resolution of 
 the Senate to be given to the Cherokees as "/^e price of their ter- 
 ritory f It was, it is true, an addition to that sum, but the addition 
 did not release the responsibility of the United States to pay more, if 
 the two objects to be accomplished by it amounted to more than 
 $600,000, inasmuch as the Senate did not intend that that expendi- 
 ture should be deducted from the five millions at all. Such, evidently^ 
 was the opinion of the senators to whom the question was submitted, 
 and their opinions not being questioned or denied by the Senate 
 afterwards, we are, upon every principle of justice and good conscience, 
 entitled to the full benefit of it, as a settlement of the contested ques- 
 tion by the Senate in favor of the Cherokees. 
 
 Having thus shown, by the contemporaneous history of the negotia- 
 tion of the treaty of 1835^ what question was again to be submitted to 
 the Senate, and having shown how and by whom that question was 
 settled, it is needful now to inquire whether the opinion was a justi- 
 fiable exposition of the intention of the Senate. And in order to do 
 so, it is only necessary to refer to the proceedings of the Senate on the 
 ratification of the treaty and supplement. 
 
 On the 5th day of March, 1836, the President sent the following 
 message : 
 
 " To the Senate of the United States: 
 
 "I submit to the SenatCj for their advice and consent as to the 
 ratification of the same, the treaty, and the supplement to it, recently 
 concluded with the Cherokee Indians. The papers referred to in the 
 accompanying communication from the Secretary of War, as necessary 
 to a full view of the whole subject, are all herewith submitted. 
 
 "ANDREW JACKSON.'* 
 
 (Senate Journal, first session, twenty-fourth Congress, p. 570.) 
 
J. K. ROGERS. 73 
 
 And on tlie 23d day of May following tlie Senate passed tliis reso- 
 lution : 
 
 ^'■Resolved, (two-thirds of the senators present concurring,) That 
 the Senate do advise and consent to the ratification of the treaty be- 
 tween the United States of America and the Cherokee Indians, con- 
 cluded at New Echota the 29th of December, 1835, together with the 
 supplementary articles thereto, dated the 1st day of March, 1836, with 
 the following amendments." — (Senate Journal, same session and Con- 
 gress, p. 575.) 
 
 We come now to consider the only question of importance at issue 
 in our case ; and, as we have seen, the Senate did not intend that the 
 alloivance for spoliations or the expenses of removed shoidd be deducted 
 from the amount of five millions recommended to be offered to the 
 Cherokees "as the price of their teri^itory," and the |600,000 not 
 being sufiiuient for "these tioo expenditures," we would ask, in the 
 spirit of fair and honorable dealing, how could the United States, 
 with justice or propriety, come back to the five millions, and deduct 
 therefrom the excess ? The same can be said with regard to subsist- 
 ence, as the terms used in the resolution of tne Senate does not admit 
 of any other construction. Thus the treaty was "invalidated" by 
 the addition of the supplement, and the items of spoliation, removal, 
 and subsistence, named in the 15th article as being deductable, were 
 not to be deducted, but were abrogated just as much as if an article 
 had been inserted for that purpose — the effect being the same by im- 
 plication and construction. 
 
 We insist, then, that the Secretary of War, Mr. Poinsett, and Con- 
 gress were right in recommending and passing the act of June 12, 
 1838, by which |1, 047, 000 was appropriated "in full for all objects 
 specified in the 3d article of the treaty of 1836 between the United 
 States and the Cherokees, and for the further object of aiding in the 
 subsistence of the Indians for one year after their removal west." 
 The act was only carrying into effect an obligation of the government, 
 and therefore the legislation was strictly legal, and not a gratuity, as 
 has generally been supposed. The facts presented certainly justify 
 such a conclusion. These facts, too, were in the possession of the Sec- 
 retary of War and Congress at the time the act was passed ; and may 
 we not, with perfect propriety, venture the opinion by saying, had 
 these facts been in the possession of the Court whilst they were adju- 
 dicating the case, would not their decision have been different? We 
 humbly trust so ; and the only excuse we have now to offer for not 
 presenting them previously was the strict reliance placed on the afore- 
 said act of the obligations of the government to pay the excess, and 
 considering, as we had a right to, that that question was thereby 
 fully and finally settled in favor of the Cherokees. 
 
 Should the Court consent to hear argument of counsel on the mo- 
 tion to grant a new trial, we think we shall be liilly able to prove 
 that the Executive regarded subsistence for one year after removal 
 limited to $33 33, and did not go beyond this sum in any contract 
 entered into for that purpose. The $172,316 47 expended for sub- 
 sistence one year after removal^ " was furnished to the Indians when 
 in great destitution, upon their own urgent application, after the ex- 
 
74 *■ J. K. ROCJEES. ■ 
 
 piration of the one year, upon the understanding that it was to he de- 
 ducted from the moneys due them under the treaty," — (Senator Se- 
 bastian's report, page 10.) 
 
 Witli regard to the expense of the Cherokee committee, named in 
 the 12th aiticle of the treaty of 1835, we would only remark, in con- 
 tradistinction to the opinion of the court, that if it was a national 
 committee, acting for and in behalf of the Cherokee nation, it never 
 had an 'existence as such previous to the date of said treaty, or, in 
 other words, it was the creature of the treaty; and in either event the 
 expenditure on their account, if reimbursable at all by the Cherokees 
 to the United States, should have been reimbursed out of their 
 national, and not their per capita fund. We are strict construction- 
 ists, and adhere to the doctrine that treaties between nations, like 
 compacts between States^ are not to be warped to suit the convenience 
 of the hour of either or any party. 
 
 The per capita fund was not national, in the strict sense and mean- 
 ing of that term, but belonged individually to every man^ woman, 
 and child composing the Cherokee nation, and the United States had 
 no legal, express, or implied right to touch that fund, except for the 
 purposes contem])lated by the treaty. By this assumption of right on 
 the part of th? Executive of the United States, the per capita fund 
 was reduceil that amount, and individuals have been made to reim- 
 burse the United States out of their private purses, when the burden 
 should have been borne by the common treasury of their nation. 
 There was no authority for this, unless it were the law of power ; 
 certainly no such right vests in the treaty. 
 
 Washington, January 1, 1856, 
 
 J. K. KOGERS. 
 
 in the court of claims. 
 Johnson K, Rogees vs. The United States. 
 Brief of U. S. Solicitor on amended petition. 
 
 When this claim was before the Court on the original petition, the 
 amount claimed was |92,625 19, which was arrived at mainly by 
 adopting the settlement under the treaty of 1846 with the old settlers 
 as the basis of settlement with the claimants who are not old settlers, 
 and to whom neither the provisions of the treaty, in respect to old 
 settlers, nor the reasons for those provisions, apply. 
 
 But even on that basis, by the 4th article, spoliations, removal and 
 subsistence were to be charged to the treaty fund, and were charged 
 in the account taken, on which the claimant relied. 
 
 Now, however, on his amended petition, he claims that the account 
 shall be taken without these items altogether, and that his claim 
 amounts to $171,719 29. 
 
 It is true he inserted in his original petition that he might have 
 claimed more, and that the $5,000,000 fund was not chargeable 
 with these items at all ; and the Court considered most of the argu- 
 
J. K. KOGERS. 75 
 
 ments which are now offered on this point, in passing on the original 
 petition, although the claim in that petition was, as I have said, 
 based chiefly on the account rendered, in which the right to charge 
 this fund with these items was assumed. 
 
 Tlie principal ground now I'elied on, not heretofore presented, to 
 maintain this, is^ that the Senate, in March, 1835, by resolution, 
 stated, as their opinion, that a sum not exceeding $5,000,000 should 
 be paid to the Cherokee Indians for all their lands and possessions east 
 of the Mississippi river. That this was an award between the chiefs 
 and the President, who could not agree about the amount. That it 
 is distinctly stated in the resolve as the price of the land, &c. When 
 the treaty and supplement were subsequently made in December, 
 1835-'36, the question which had arisen between the Executive and the 
 Indians as to the meaning of the Senate's resolve it was agreed should 
 be referred to the Senate; and if it should appear that the $5,000,000 
 was not intended to include these items, then it was further agreed 
 that such further provision should be made by the Senate as might 
 appear just to the Senate; an article was submitted with a blank, for 
 the same to be filled up with such sura as the Senate should deem a 
 proper provision in that case. 
 
 This was the 3d article of the supplement, in which a fund of 
 $600,000 is provided to cover these and '■'■all claims of every nature 
 and description not herein otherwise provided for." 
 
 This is called an appropriation in the argument of the claimant, 
 and the common case of too small an appropriation. It is not so. It 
 is a treat}' provision, and is a part of that award, and within the 
 terms of that submission of which so much is said in the claimant's 
 argument. The Senate was not only the arbiter to decide whether 
 the disputed items were embraced in their offer, but the arbiter also 
 to determine what further provision should be made in the event that 
 these items were not within the fund. 
 
 This may seem an extraordinary provision, because, as it is argued 
 by the claimant, it would seem, if the United States were bound to pay 
 any portion of these items, it would be proper to pay all; and there 
 would seem to be no propriety in stipulating at all, further than to fix 
 the liability — much less stipulating for a specific sum in advance of the 
 ascertainment of the actual amount. But whether common or not, 
 and wliether the mode which would seem most proper and reasonable 
 to us or not, is not material. It is certain that this was the course 
 which it was deemed just by the Senate to pursue ; and it is not com- 
 petent for the Court to review its action, for, besides that, it is the 
 action of the Senate on a subject within its jurisdiction, as the treaty- 
 making power. It was the decision of the body to which the Chero- 
 kees referred the question of fact as to the extent of its offer, and the 
 question of what was "just" to make good that offer. 
 
 The claimant thinks it not just that the fund should be charged with 
 any portion of these items, and the injustice of it is admitted because 
 the Senate agreed to add to the fund. It would be easy to justify the 
 Senate's action, if it was necessary, and to show that the Senate, as 
 well as the Executive, have acted, and have continued to act, with 
 extreme liberality, and that the clamor which has been made about 
 
76 J. K. ROGERS. 
 
 imposition on the Indians is merely in aid of attempts to impose on 
 tlie government. 
 
 We are here, however, now to construe the treaty and not to discuss 
 its justice, and it would be improper to go into such considerations. 
 
 The treaties of 1828 and 183B, and the treaties with other tribes, 
 providing for the supply "of a good rifle, a blanket and kettle, and 
 five pounds of tobacco, to every Indian, on enrolling himself for emi- 
 gration," and stipulating also to pay "the cost of emigration of all 
 such," and " support by the way, and for twelve months after the 
 arrival at the agency," have no application to the case. 
 
 That treaty and supplement was intended to induce individual emi- 
 gration, and those who received the benefits of it were to be enrolled. 
 Each particular case was the subject of arrangement. The treaty of 
 1835-'36 provided for the removal of the tribe, the purchase of their 
 whole property for a given sum, and regulated the distribution of the 
 purchase- money per capita after the payment of the expenses of 
 removal, subsistence, &c. 
 
 There is no such inconsistency or repugnancy between the 8th and 
 15th articles of the treaty as to authorize the assumptions that either 
 was not in force. The Court has already passed on the supposed con- 
 flict in these articles, and decided that there is none, and that they are 
 consistent. In addition to what is said in the opinion on this point, I 
 would suggest that the schedules accompanying the treaty, showing 
 the estimates upon which the sum to be paid was fixed, are conclusive 
 that these articles should stand together. These show that it was not 
 intended that there should be much, if any, surplus money for distri- 
 bution. General Jackson and the Senate, and the able men who have 
 had to deal with those subjects, knew full well that such money was 
 worse than thrown away. When they had provided a fertile tract of 
 land in the west, payment for the improvements of individual's ferries 
 and other individual property in the tribe, and to enable them to erect 
 improvements in their new homes, and remove them to their new 
 homes, subsisted them for twelve months, and stipulated for annuities, 
 shops, &c., anything more was not only waste, but was merely given 
 to the white men, and half-breeds, and headmen, for their own 
 purposes. 
 
 It was because the $5,000,000 recommended by the Senate did not 
 enable Ross to fill his private purse that he flew from his solemn 
 agreement with General Jackson, in March, 1835, and not, as is said 
 in the argument here, because General Jackson did not furnish him 
 the minutes of the Senate or abide by the award ; for when that pretext 
 was made it was offered to him to submit the question again to the 
 Senate, on the treaty, and he flew from it, and preferred to subject his 
 people to all the distress they suffered, rather than forego the oppor- 
 tunity of enriching himself. 
 
 It is apparent, on the face of his proceedings, and even in his offer^ 
 that it was the money he stuck out for, and not the honor of his 
 fathers. 
 
 General Jackson dealt with things and not with forms. He knew, 
 as everybody knows, that the Indians were a dependent people, to be 
 disposed of and dealt with kindly^ as far as practicable, but their re- 
 
J. K. ROGERS. 77 
 
 moval was a necessity. Ross and his confederates knew this as well 
 as he did, and wished to take advantage of it for their private ends, 
 and the General would not permit them. Ross struggled hard, found 
 supporters in Congress, and managed to get some money out of it ; 
 but, in the end, although he made a great deal of trouble, and com- 
 mitted man}'' shocking crimes, had to submit. 
 
 He carried on for years a pretty good business, and he and others 
 who have taken on themselves the business of taking care of the poor 
 Indians, have, like the intendent in Gill Bias, done a good business 
 for themselves in taking care of the affairs of the poor. 
 
 This trade Congress intended by the act of 2'7th of February, 1851, 
 quoted in my former brief in this case, to put an end to, and I hope 
 that the Court will reconsider this construction of that act. 
 
 It was not intended, therefore, by the treaty, to do more than to 
 give the Indians a new home, remove them to it, enable them to put 
 up similar improvements to those left behind, support them for a year, 
 and start them under new auspices in a course of civilization. The 
 eighth article guarantied this from the United States ; and although 
 by the fifteenth article the fund was charged with it in the first in- 
 stance, if the fund had proved insufficient, the government would 
 have been bound to pay the difference. It was thought to be ample, 
 and it was no doubt deemed best to make such a fund, and hold out 
 the temptation of a surplus to give the chiefs and the tribe generally 
 a pecuniary interest and the hope of a surplus, in order to induce 
 economy. 
 
 The Court has already declared that the law of 1838, and the de- 
 cision of the Senate in 1850, are not constructions of the treaty and 
 supplement. 
 
 The Court expresses the opinion tliat the proviso of the act requiring 
 a receipt in full, on payment of the money thus appropriated, does 
 not apply to the claimants, because they are not now a part of the 
 Cherokee nation. 
 
 I reply, that none of the money thus appropriated was to be paid 
 to the Cherokee nation in its corporate capacity. That is expressly 
 provided against in the appropriation itself, and was previously pro- 
 vided against in the treaties of 1835 and 1846. The money was to 
 be paid to the individuals per capita. To make any payment, there- 
 fore, it is necessary to construe the language to mean the Cherokee 
 people. But the Court say that it must be taken to apply only to 
 individuals then composing that section, and, as these did not then 
 form a part of it, they are not concluded. This construction would 
 also have concluded them from receiving the money. This was not 
 intended. It was an ajjpropriation expressly for paying off all de- 
 mands whatever, under any treaty heretofore made with the Cherokees. 
 These persons, though no longer members of the Chei'okee nation, 
 were Cherokees in one sense, and were entitled, by the twelfth article, 
 to the per capita appropriated in the act of 1851. The receipt to be 
 given was, therefore, it seems to me, equally conclusive against all 
 Cherokees claiming under any treaty, whether they were then citi- 
 zens of the United States or continued members of the tribe. 
 
 M. BLAIR, Solicitor. 
 
78 ■ J. K. ROGERS. 
 
 J. K. KoGERS VS. The United States. 
 
 ScARBURGH, J., delivered the opinion of the Court: 
 
 The petitioner has heen permitted to file an amended and substi- 
 tuted petition in the place of his original petition, and we have been 
 called upon to reconsider our former judgment. The case has again 
 been argued with great ability on both sides, and we have carefully 
 re-examined it. 
 
 In our former opinion we held that the sums expended for removal, 
 subsistence, and spoliations were properly chargeable to the treaty 
 fund ; that the expense of removal and subsistence was limited — of the 
 one to twenty, and of the other to thirty-three dollars and thirty-three 
 cents — only in regard to such of the Cherokees as, under the 8th 
 article of the treaty of 1835-'36, were allowed to remove and subsist 
 themselves ; and that the expense of the committee appointed under 
 the 12th article of the treaty was properly chargeable against the 
 Cherokees. Our conclusion was, that the facts set forth in the original 
 petition do not furnish any ground for relief. 
 
 Much stress is laid in the amended petition on the 8th article of the 
 treaty of 1828, which the petitioner insists was in full force at the 
 time the treaty of 1835-'36 was made. That was a treaty between 
 the Cherokee nation of Indians west of the Mississippi and the United 
 States. The Cherokees east of the Mississippi were not parties to it, 
 or in any respect bound by it. The 8th article of that treaty was a 
 more proposition to the latter, and to entitle them to the benefit of it 
 they must not only show an acceptance of it on their part, but an ac- 
 ceptance in the very terms in which it was offered. But it is not, and 
 cannot be, pretended that they ever thus accepted it. It seems to us, 
 therefore, to be wholly unnecessary for us to consider the character of 
 the obligation which it would have imposed upon the United States, 
 if it had been thus accepted. The treaty of ]835-'36, so far from 
 being an acceptance of that proposition, makes no reference whatever 
 to it. Whether, at the time of the making of the latter treaty, it was 
 at all in the minds of the high contracting parties is, and must forever 
 be, a matter of mere conjecture. In reference to the subjects em- 
 braced by the proposition, the treaty of 1835-'36 has its own stipula- 
 tions, which, upon the making of the treaty, became obligatory upon 
 the parties to it. The rights and obligations of the parties in reference 
 to those subjects grow out of those stipulations, and not out of the 
 unaccepted proposition. The former is a complete contract, whilst 
 the latter was a mere offer, which, not having heen assented to by the 
 eastern Cherokees, is now a mere nullity. 
 
 The petitioner insists that the question submitted to the Senate by 
 the treaty was, whether the five millions of dollars were not the price 
 of the lands of the Cherokees. Upon this point we can look only to 
 the treaty. Its language is plain and explicit. The 1st article recites 
 the resolution of the Senate, and submits the question whether the 
 Senate in that resolution included spoliations. Afterwards the par- 
 ties, by the 2d and 3d supplementary articles, not only enlarged the 
 submission so as to include removal as well as spoliations, but actually 
 
J. K, ROGERS. 79 
 
 framed the awards and agreed that it should become a part of the 
 treaty, if the Senate should approve of it. The lan<i;uage of these 
 articles is too plain to leave room for construction. They clearly do 
 not sustain che position of the petitioner. 
 
 Looking at the award of the iSenate as we find it in the 3d supple- 
 mentar}^ article, we have not been able to discover any ground what- 
 ever for the proposition that the treaty Avas framed with a double 
 aspect, so that if the Senate should decide in favor of the Oherokees, 
 then the 8th article should stand unqualified by the loth article ; but 
 if the decision of the Senate should be unfavorable to them, then the 
 15th article should stand and qualify the 8th article. If such was the 
 intention of the parties, they onght so to have expressed themselves. 
 The treaty as it now stands, whether we consider it in itself, or as 
 connected with the circumstances under which it was made, is sus- 
 ceptible of no such construction. The 8th and 15th articles are en- 
 tirely consistent with each other, and admit, it seems to us, of no 
 other construction than that which we j)ut upon them in our former 
 opinion. 
 
 Entertaining these views, we cannot assent to the proposition that 
 "the $600,000 was not given as a finality, bat it was the concession 
 of a right, and to meet expenditures for which the United States were 
 bound." The stipulation for the payment of six hundred thousand 
 dollars may be regarded as the concession or recognition of a right to 
 the award of the Senate upon the subjects submitted to that body, 
 but of no other right ; and when ratified by the Senate, it became a 
 part of the treaty, and entitled the Cherokees to the payment of that 
 sum of money, to be applied to the purposes mentioned in the 3d sup- 
 plementary article. But this was its whole effect. Nor can we say 
 that " it was a fraud on the Cherokees to state the piirposes for which 
 this $600,000 was given, as they are stated in the 3d article of the 
 supplement — that is, for all claims of every nature, &c., reservations, 
 pre-emptions, &c." We do not suppose that Congress has conferred 
 on this Court, even if it have the power to do so, jurisdiction to inquire 
 into a fraud alleged to have been committed by the treaty-making 
 department under the Constitution of the United States. We must 
 take the treaty in all its parts as we find it. If a fraud has been 
 committed in the making of the treaty, this Court has no power to 
 afford relief. 
 
 The petitioner treats the stipulation for the payment of $600,000 
 as an appropriation to be applied pro tanto in discharge of an existing 
 obligation on the part of the United States. But this is not its char- 
 acter. It is but a treaty stipulation^ and not an appropriation. By 
 it the United States became bound to pay that sum of money for the 
 purposes therein mentioned, but it imposed or recognized no other 
 obligation. If more was intended, its language ought to have been 
 different. We cannot make a treaty ; we are called upon merely to 
 say what is the meaning of that which was made ; and we have 
 already seen that there was no such previously existing obligation as 
 that insisted upon by the petitioner. Thence we were fully warranted 
 in saying, in our former opinion, that the fact that the United States 
 
80 
 
 J. K. ROGEKS. 
 
 limited the sum conclusively shows that they intended thereby to 
 limit the extent of their obligation. 
 
 In regard to the construction of the statutes which have been en- 
 acted since the date of the treaty of 1835-'36, and the effect of the 
 treaty of 1846, we have found no reason to change the views which 
 we have heretofore expressed. We think, too, that there is no error 
 in our former opinion in regard to the expense of the committee ap- 
 pointed under the 12th article of the treaty of 1835-'36. 
 
 We are of the opinion that the facts set forth in the amended peti- 
 tion of the claimant do not furnish any ground for relief, and we do 
 not, therefore^ authorize the taking of testimony in this case. 
 
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