If it be desired by the Cherokee Nation that their own agents should have charge of their emigration, their wishes will be complied with and instructions be given to the commanding general in the Cherokee country to enter into arrangements with them to that effect. With regard to the expense of this operation, which you ask may be 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.
A recommendation was made to Congress in compliance with this promise. Based upon an estimate of the probable cost thereof, Congress by act of June 12, 1838,[523] appropriated the sum of $1,047,067 in full for all objects specified in the third article of the treaty and the further object of aiding in the subsistence of the Indians for one year after their removal, with the proviso that no part thereof should be deducted from the $5,000,000 purchase money of their lands.
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, by which the Secretary of War agreed that the expenses of removal and subsistence, as provided for by the treaty of 1835, should be borne by the United States, and Congress affirmed this act by providing that no part of the sum appropriated should be charged to the treaty fund. The appropriation thus made proved wholly inadequate for the purposes of removal and subsistence, the expense of which aggregated $2,952,196.26,[524] of which the sum of $972,844.78 was expended for subsistence. Of this last amount, however, $172,316.47 was furnished to the Indians when in great destitution upon their own urgent application, after the expiration of the "one year," upon the understanding that it was to be deducted from the moneys due them under the treaty. This left the net sum of $800,528.31 paid for subsistence and charged to the aggregate fund. Of this sum the United States provided by the act of June 12, 1838, for $611,105.55, leaving unprovided for, the sum of $189,422.76. This, added to the balance of $724,603.37 found due in pursuance of the report of the accounting officers of the Treasury,[525] amounted in the aggregate to $914,626.13.
The item of $189,422.76 was appropriated, as previously stated, by the act of September 30, 1850, and that of $724,603.37 by the act of February 27, 1851. Interest was allowed on each sum at the rate of 5 per cent. per annum from the date of the act of June 12, 1838, with the understanding that it should 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 theretofore made with them. Instructions were issued[526] in the fall of 1851 to John Drennan, superintendent of Indian affairs, to proceed without delay to make the payment. For this purpose a remittance was made to him at New Orleans of the sums of $1,032,182.33 and $276,179.84. The first of these sums, he was advised by his instructions, was intended for the per capita payment, principal and interest, to the Eastern Cherokees, or Ross party, in pursuance of the act of February 27, 1851. The latter was for a similar payment to the same parties in compliance with the terms of the act of September 30, 1850, previously mentioned. These sums were to be distributed, according to the census roll, among 14,098 Cherokees within his superintendency, and were exclusive of the pro rata share to which those Cherokees east of the Mississippi living within the States of North Carolina, Georgia, Tennessee, and Alabama were entitled. For the payment of the latter a clerk was detailed from duty in the Office of Indian Affairs to act in the capacity of a special disbursing agent.
The payments made by Superintendent Drennan, coupled with the conditions prescribed by the act of Congress, were very unsatisfactory to the Government or Ross party of Cherokees. Therefore their national council addressed[527] to the United States a solemn and formal protest against the injustice they had suffered through the treaties of 1835 and 1846, and the statement of account rendered by the United States under the provisions of those treaties.[528] After thus placing themselves on record, the Cherokees accepted the money and complied with the conditions prescribed in the act of Congress.
AFFAIRS OF THE NORTH CAROLINA CHEROKEES.
As has been already remarked, at the time of the general removal of the Cherokee Nation in 1838 many individuals fled to the mountains of Tennessee and North Carolina and refused to emigrate. They always maintained their right to an equal participation in the personal benefits provided in the treaty of 1835, which, though not denied, was held by the executive authorities of the United States to be conditional upon their removal west. At length by an act of Congress approved July 29, 1848,[531] provision was made for causing a census to be taken of all those Cherokees who remained in the State of North Carolina after the ratification of the treaty of 1835 and who had not since removed west. An appropriation was made equal to $53.331/3 for each of such individuals or his or her representative, with interest at 6 per cent per annum from the 23d of May, 1836. Furthermore, whenever any of such individuals should manifest a desire to remove and join the tribe west of the Mississippi, the Secretary of War was authorized to expend their pro rata share of the foregoing fund, or so much thereof as should be necessary, toward defraying the expense of such removal and subsistence for one year thereafter, the balance, if any, to be paid to the individual entitled. The amount of this appropriation, it was stipulated, should be refunded to the United States Treasury from the general fund of the Cherokee Nation under the treaty of 1835. The census mentioned was taken by J. C. Mullay in 1849, and the number found to be entitled to the benefits of the appropriation was 1,517,[532] which by additions was increased to 2,133. Under the appropriation acts of September 30, 1850, and February 27, 1851, these Cherokees remaining east of the Mississippi were entitled to their pro rata share of the amounts thus appropriated. Alfred Chapman was accordingly detailed[529] from the Interior Department to make the per capita payment, and was furnished with the amounts of $41,367.31 and $156,167.19 under those respective acts. He was directed to base his payments upon the census roll furnished him, which showed 2,133 Indians to be entitled. By section 3 of an act approved March 3, 1855,[530] provision was made for the distribution per capita among the North Carolina Cherokees on the Mullay roll[533] of the fund established by the act of July 29, 1848, provided that each Indian so receiving such payment in full should assent thereto. As a further condition to the execution of this act it was stipulated that satisfactory assurance should be given by the State of North Carolina, before such payment, that the Cherokees in question should be permitted to remain permanently in that State. The desired legislative assurance was not given by North Carolina until February 19, 1866, and the money was not, therefore, distributed, but carried to the surplus fund in the Treasury. Afterwards, by act of March 3, 1875,[534] it was made applicable to the purchase and payment of lands, expenses in quieting titles, etc.
In order to determine who were the legal heirs and representatives of those enrolled in 1849, but since deceased, the Secretary of the Interior was directed by an act of Congress, approved July 27, 1868,[535] to cause another census to be taken, to serve as a guide in future payments. It was further provided by the same act that the Secretary of the Interior should cause the Commissioner of Indian Affairs to take the same supervisory charge of this as of any other tribe of Indians.
This second census was taken by S. H. Sweatland in 1869, and he was instructed to make payment of interest then due to the Indians, guided by his roll, but on the same principle on which previous payments had been effected, that is, to those individuals only whose names appeared on the Mullay census roll, or their legal heirs or representatives, as ascertained by census taken by himself. As remarked by the Commissioner of Indian Affairs, the difficulty of tracing Indian genealogy through its various complications, in order to determine who are legal representatives of deceased Indians, without any rules by which hereditary descent among them may be clearly established, was fully demonstrated in the payment made by Mr. Sweatland, which was the occasion of many complaints and even of litigation.
The landed interests of these North Carolina Cherokees had also since the treaty of 1835 become much complicated, and through their confidence in others, coupled with their own ignorance of proper business methods, they were likely to lose the title to their homes. At this juncture Congress, by an act approved July 15, 1870,[536] authorized suit in equity to be brought in the name of the Eastern Band of Cherokee Indians in the district or circuit courts of the United States for the recovery of their interest in certain lands in North Carolina. This suit was instituted in the circuit court of the United States for the western district of North Carolina in May, 1873, against William. H. Thomas and William Johnston. Thomas, as the agent and trustee of the Indians, it was alleged had received (between 1836 and 1861) from them and for their benefit large sums of money, which had or ought to have been invested by him, in pursuance of various contracts with the Indians, in certain boundaries of land as well as in a number of detached tracts. The legal title to all these lands was taken by Thomas, and was still held in his own name, he having in the mean time become non compos mentis. It was alleged against the other defendant, Johnston, that in the year 1869 he had procured sales to be made of all these lands to satisfy judgments obtained by him against Thomas, and that he had bought in the lands at these sales and taken sheriff's deeds therefor, although having himself a knowledge of the existing equities of the Indians. In fact, that after the purchase of the lands he had entered into a contract with the Indians to release to them all the rights he had acquired by such purchase for the sum of $30,000, payable within eighteen months. Under this contract, and at the time of its execution, the Indians paid him $6,500.