They also reported that there was a further sum of $96,999.31, charged to the general treaty fund, which had been paid to the various agents of the Government connected with the removal of the Indians and which the Cherokees contended was an improper charge upon their fund. The facts as to this item were submitted by the Auditor and Comptroller without recommendation for the decision of the question by Congress, and Congress, admitting the justice of the Cherokee claim, included this sum in the subsequent appropriation of February 27, 1851.[505]
It was also resolved[506] by the United States Senate (as umpire under the treaty of 1846) that the Cherokee Nation was entitled to the sum of $189,422.76 for subsistence, being the difference between the amount allowed by 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 just recited. It was further resolved that interest at 5 per cent. should be allowed upon the sums found due the Eastern and Western Cherokees respectively from June 12, 1838. The amount of this award was made available to the Cherokees by Congressional appropriation of September 30, 1850.[507]
Settlement of claims of "Old Settler" party.—By the fourth and fifth articles of the treaty of 1846,[508] provision is made and a basis fixed for the settlement with that part of the Cherokee Nation known as "Old Settlers" or "Western Cherokees," or, in other words, those who had emigrated under the treaties of 1817,[509] 1819,[510] and 1828,[511] and who were, at the date of the treaty of 1835,[512] an organized and separate nation of Indians, whom the United States had recognized as such by the treaties of 1828 and 1833[513] made with them. In making the treaty of 1835 with the Cherokees east, which provided for their final and complete transfer to the country west, then occupied by the "Western Cherokees," and guaranteed in perpetuity by two treaties, upon considerations alone connected with them, the rights of the latter seem to have been forgotten. The consequences of the influx of the Eastern Cherokees were such that upon their arrival the "Old Settlers" were thrown into a hopeless minority; their government was subverted, and a new one, imported with the emigrants coerced under the treaty of 1835, substituted in its place.
To allay the discontent thus caused in the minds of the "Old Settlers," and to provide compensation to them for the undivided interest which the United States regarded them as owning in the country east of the Mississippi, under the equitable operation of the treaty of 1828, was one of the avowed objects of the treaty of 1846. To ascertain their interest it was assumed that they constituted one-third of the entire nation, and should therefore be entitled to an amount equal to one-third of the treaty fund of 1835, after all just charges were deducted. This residuum of the treaty fund, contemplated by the fourth article of the treaty of 1846, amounted, as first calculated, to $1,571,346.55, which would make the proportionate share of the "Old Settlers" amount to the sum of $523,782.18. The act of September 30, 1850,[514] made provision for the payment to the "Old Settlers," in full of all demands under the provisions and according to the principles established in the fourth article of the treaty of 1846, of the sum of $532,896.96 with interest at 5 per cent. per annum. This was coupled with the proviso that the Indians who should receive the money should first respectively sign a receipt or release acknowledging the same to be in full of all demands under the terms of such article.
A year later,[515] when the "Old Settlers" were assembled for the purpose of receiving this per capita money, although their necessities were such as to compel compliance with the conditions of payment, they entered a written protest against the sum paid being considered in full of all their demands, and appealed to the United States for justice, indicating at the same time in detail wherein they were entitled to receive large additional sums.
For many years this additional claim of the "Old Settlers" practically lay dormant. But toward the close[516] of the year 1875 they held a convention or council at Tahlequah, the capital of the Cherokee Nation, and resolved to prosecute their claim to a "speedy, just, and final settlement." To that end three of their people were appointed commissioners with full power to prosecute the claim, employ counsel, and to do all other necessary and proper things in the premises. The council set apart and appropriated 35 per centum of whatever should be collected to defray all the necessary expenses attendant upon such prosecution and collection. Several subsequent councils have been held about the subject,[517] and the matter continued to be pressed upon the attention of Congress until, by the terms of an act approved August 7, 1882,[518] that body directed the Secretary of the Interior to investigate this and other matters relating to the Cherokees and to report thereon to Congress. Pursuant to the purpose of this enactment, Mr. C. C. Clements was appointed a special agent of the Interior Department with instructions to make the required investigation. He submitted three reports on the subject, the latter two being supplemental to and corrective of the first. From this last report[519] it appears that he finds the sum of $421,653.68 to be due to the "Old Settler" Cherokees, together with interest at 5 per cent. per annum from September 22, 1851. In brief his findings are—
1. That they received credit, under the settlement made under the treaty of 1846, for one-third of the fund, and were chargeable with one-third of the items properly taxable thereto.
2. Independent of article four of the treaty of 1846, the "Old Settlers" were not chargeable with removal out of the $5,000,000 fund.
3. Independent of that article, they should not be charged out of the $5,000,000 fund with the removal of the Eastern Cherokees, for three reasons: (a) The "Old Settlers" removed themselves at their own expense; (b) the Eastern Cherokees were not required to reimburse the "Old Settlers" under the treaty of 1835; and (c) the Government was required to remove the Eastern Cherokees.
4. They were not properly chargeable with the removal of the Ross party of 13,148, because (a) the United States were to remove them, and (b) an appropriation of $1,047,067 was made for that purpose, for which the "Old Settlers" received no credit in the settlement under the treaty of 1846.