45-3Indian AffairsRemonstrance of the Chief of the Delegates to the Eastern Cherokees. [1861] Against passage of any bill allowing Eastern Cherokees to sue the Cherokee Nation.1879-2

House of Representatives Miscellaneous Document No. 17, 45th Congress, 3rd Session (1879)

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45TH CoNGREss, } HOUSE OF REPRESENTATIVES. { Mrs. Doc. 3d Session. No. 17. EASTERN BAND OF CHEROKEES. REMONSTRANCE OF THE PRINCIPAL CHIEF AND DELEGATES OF THE CHEROKEE. NATION OF INDIANS AGAINST The passnge of cmy bill to allow the Eastern Bnnd of Cherokees to su.e the Cherokee Nc~tion. FEBRUARY 1, 1879.-Referred to the Committee on Indian Affairs and ordered to be printed. WASHINGTON, D. C., January 27, 1879. To the Congress of the United States: The undersigned, principal chief and delegates of the Cherokee Na-. tion, ask leave to present, as they now do, for your consideration, the accompanying "objections of the Cherokee delegation (for 1878) to bill S. No. 230, and bill H. R. No. 228, and similar measures," pending be-fore you, authorizing the so-called Eastern Band of Cherokees (now citizens of North Carolina) to sue the Cherokee Nation, &c. We present this document, as expressive of our views, in reference to said bills, and a~ a protest against the passage of either one of them, and, respectfully ask that it be so considered in connection with the bills. Very respectfully, CHARLES THOMPSON, Principal Chief W. P. ADAIR, WILL. P. ROSS, SAM'L SMITH, DAN'L H. ROSS, Cherokee Delegntion • • 2 EASTERN BAND OF CHEROKEES. 0B.mCTIOXS OF THE CHEROKgE DELEGATION TO BILL S. No. 230 AND BILL H. R. No. 228 Ac.'<D SIMILAR MEASURES PENDING BEFORE THR l!' IRST SESSION J!'OHTY-FIFTI-l CoNGREss, AUTnomzrNG Tim so-cALLRD " EASTERN BAND " OF THE CHRR-OICEES (CITIZENS OF NOHTH CAROLINA) TO SUE THE CHEROKEl~ NATION, &c. To the honomble the Senate an!l Honse of Rep1·esentatives of the Unitecl States in Congr·ess · assembled : There are pendin"' before your honorable bodies bills S. No. 230 and H. R. No. 228, andsimilar measur~s entitled o·enerally as bills " To authorize and enable the 'East-ern Baml' of the Ch~rokee Imlfans to institute and prosecute a snit in t he Court of Claims against the Cherokee Nation"; against t.he passag~ of which by your honO!·a-ble bodies we respect.filll,y but. firmly pr:otest for th~ foll<?~mg. reasons : . 1st. The princi11le involvedm the s~tbject-matter of the ht1gatwn prov1decl by the bllls to be adjudicated by the Court o~ Claims has a;trea~ly bem~ aclj ndieated and settled by that court. [See the decision of the Court of Clmms dehvered b y Judge Scarburgh in 1855 and 1857 in the case, No. 46, of '' J. K. Rogers, for himself, and 2,133 ' Eastem ' Cherokees (the ~ame ones authorized to sue in the bill now 1mder consideration), t·s. The United States."] In this case, as shown from the records of the court from 1855 to February, 1857, the claims of these same "Eastern" Cherokees were decided a!l-'VI!1'Bely, for the reason, among othe~·s, that he, Rogers, and the other "Eastern" Cher-okee, plaintiffs, "ha:'ing avmled hu.nself (1~n.der the 12th article of the Che~:okee treaty of 1836) 0f t·he privilege of becommg a CitiZen of the State where he resided, he no lono·er remained an 'individual' of the Cherokee Nat.ion," &c. 2d. The" Cherokee Nation," or the'' Cherokee people," are not citizens of the United 'States. (See report No. 268, U.S. Senate, 41st Congress, 3d session, of the Committee on the Judiciary, submitteLl by Senator Carpenter.) The people of t he Cherokee Na-tion not being citizens of the United States, and the Cherokee Nation not being a "State" of the American Uuiou, nor a. "foreign" state or power, within t he meaning of the United States Constitution, it (the "Cherokee Nation," as named in the bills) cannot be a party to a suit, under the Constitution, in the courts of the United States. (See decisions Supreme Court-" Cherokee Nation V8. The State of Geoi'gia," 5 Pet,, 17; "Worcester vs. The State of Georgia," 6 Pet., 543.) Also in the case of" Holden vs. Joy," 17 Wallace, 211, this court, said: "Indian tribes are States in a certain sense, t.hongh not foreign States, or States of the United States, within the meaning of the second section of the third article of the Constitution, which extends the judicial power to controversies· between two or more States, between a State and citizens of another State, between citizens of different States, and between a State or the citizens thereof and foreign States, citizens or sub-jects." * * * * * * * If, therefore, these so-called" Eastern" Cherokees (now citizens of North Carolina) have any just demands against the Cherokee Nation(which we deny), their remedy can-not be before the courts without a change in the fundamental law-the Constitution; but must be before the executive department, whose duty it is under the Constitution to see that the Constitution itself, as well as the "laws" and "treaties" reforred to in tlw oill now in question, is faithfully executed. The bills under consideration are not in the nature of an ammulm1!1tt to the Constitution, and if they should pass Congress in violation of the provision of the Constitution referred t o by the cleliverances of t he Supreme Court, they would simply be tmconstitutional aml of no effect. As before stated, the people of t h e "Cherokee Nation" n1·e not citizens of the United Stntes, while the " Eastern Band " of the Cherokees namecl in the bills in question have made a self-acbnission, indorsed by the political and executive action of the government, that they ct1·e citizens of the Uniterl States. (See admissions of Mr. Thomas, the attorney for these "Eastern" Cherokees, on file in Indian Bmeau, 1845-'46; also the message of President Polk, and accompany-ing documents, April13, 1846, on "Cherokee difficulties," Senate Doc. 298, p. 184, vol. 35, 1st sess. 29th Congress.) At that time (1846) these "Eastern" Cherokees (so-called ) admitted, through the month of their attorney (Thomas), that they " having been mostly born in the State (of North Carolina), nothing more was necessary to make them citizens but a continued residence within her limits twelve months, aoTeeably to the laws of the State." This admission, with President Polk's message, tal~en with the decision of the Court of Claims, already referred to, settles the question beyond doubt as to the United States citizenship of these so-called "Eastern Band" of the Cherokees. As they are citizens of the State of North Carolina, Congress cannot pass a law to authorize them to sne the Cherokee Nation without violating the provision of the Constitution referred to by the decisions of the Supreme Court, named above. 3d. There is really no foundation or cause of action, either in law ·or fact, for tho suits before the comt authorized or contemplated by the bills in quest ion. We hold it as a sound maxim or nlle of ci vilizeil just ice that all complainants should show some 'Violation of law or great wron!IIt.on the part of the defendant before their remedy for redress should be transferred tl'flm tho constitutional authorities (other dep:utments .of the government) to the judicial department by extraordinary and1·etrouctive legisla-EASTERN BAND OF CHEROKEES. 3 t ion such as these bills propose. In this view of the matter we assett that there is no }H'O~ision in our t reaties with the United States nor any act of Congress relating to the ri"hts of these "Eastern" CheTOkees that the Cherokee Nation has violated; ~nd that"'on examination of our treaties and the United States statutes, and the facts bearino· on t.he subject, it will appear th at t hese "Eastern" Cherokees have no just demands aO'ainst t he Cherokee Nation t o be settled by t he Court of Claims or any other ~ourt of th~ United States, and are not entitled (while they are not permanently domi-ciled in the Che1·okeeNation according to treaty) to any interest in the funds and lands owned and now possessed by the Cherokee Nation now located in the ·west b ecause-First. The lands that are occupied and owned by the Cherokee Nation were pur-chased in the first place by the " vVestern" Cherokees, called Old Settlers, under the t reaties of 1817, 1819, 1828, and 183:3, as the property and " home" of all Cherokees who ~hould 1·emove ancl permanently locctte thereon. ( SeeRevision Indian Treaties, pp. 45, 50, 56, 61.) Second. By the treaty of 1835-'36 provision was made whereby all the Cherokees then east of th e Mississippi River should have an equal interest with said "Western Cherokees" in said lands, provided they removed and located on the same as a" home" \Yithin two years from the date of said treaty. (Ibid., pp. 65, 77, 303. ) Third. The Cherokees, now resident in North Carolina aml elsewhere east of the :Mi~sissippi River , did not avail themselves of this privilege, and under the general laws of the United States and the local Jaws of the States in which they reside they became citizens of such States. The act of Congress of 1848, providing funds for their -emigmtion to the Cherokee Na.tion, shows that their removal was a condition preceden t to their becoming citizens of the nation , and of owning au interest in the· lands and f nnds of the same. And the act of 1869, and subsequent acts for the b enefit of said North Carolina Cherokees, related only to them, ancl did not affect t he stntus of the ·Cherokee Nation. Antl all of these acts are special, including that of 1848, and go to • s how clearly that the government considers the North Carolina Cherokees as not n. part of the Cherokee Nation, and are therflfore not entitled to their demands b y virtne ·of their connection with that nation. (See U. S. Stats., vol. 9, sees. 4 and5, l'P· 264 , 265; also vol. 10, p . 700; vol. 16, pp. 38, 362,) Fourth. B:v the t reat:v of 1846, the " Old Settlers" or "vVestern Cherokees" quit-daimecl all their exclusive claims to the Cherokee lands west t o the whole Cherokee people, viz, to the parties making the t r er1ty, the "Ross" part.y, the "Treaty" party, ancl the ''Old Settlers" party of Cherokees, which w·ere acknowledgerl by t hat treaty {1846) to const itnte t.he "Cherolcee Nation," and no reference was made to the North Carolina Cherokees, outside of t.he olcl provisions of the treaty of 18:35. (Ibid., p . 79.) l<1fth. To show conclusively that actual possession by the Cherokees, of the Chero . J;:ee lands west, is a condition precedent to ownership of said la nds, all of our treaties, the act of 1830, as well as the patent of the Cherokee Nation to the lauds, declare, in specific terms, that in case the Cherokees now on the lands should abandon the same, the said lauds shall "1·evm·t to the United Stcttes "; so that if t he Cherokees who are now occupying the lands should lea'Ve them and remove to the State of North Carolina, and locate (as the North Carolina or " Eastern Bancl" Cherokees are now located), then all of ow· lands would 1·eve1·t to and beconw the p1·operty of the United States. (See Revision In-dian Treaties, pp. 56, 61, 65, 77, 79, 303, U. S. Stats., vol. 4, p. 411.) Sixth. By t he t reaty of1835, the Cherokee lands, comprising the old Cherokee Nation , east of the Mississippi River, were disposed of for t he ro1.md sum of $5,000,000. This s nm was applied as follows, viz : 1st. By the 2d and 15t h articles of the treaty of18:35, and 4th aucl 9th articles of the t reaty of 1846, $500,000 to t he purchase of the " Chero-kee neutral lands" in Kansas, under the apprehmasion that this tract was necessary to be added to the other lands in order to accommodate the Cherokees on their "1·enw'Val." 2d. By the lOth and 12th articles of the treaty of 1835, and 2d art.icle of the treaty of 1836, the sum of $:300,000 was invested for a o·eneral fnncl of t he nation. 3d. By the lOth ar ticle of the treaty of 1835, the sum of $150,000 was invested for erlucational purposes of the nation. 4th. B~r the l Oth article of the treaty of 18:35 the sum of $50,000 was invested for orphan purposes of the nat ion; and as before indicated, the treaties provide that t h e interest on t-hese funds shall b e applied as the "Cherokee Nation may direct"; and the t reaty of 18:35 provides that the interest funds are fortlte benefit of those Cherokees "who ha'Ve 1·emovecl or may1·emo'Ve west to the Cherokee .Nation." These several sums aggregate t he sum of $1,000,000, which being deducted fi·om the original $5,000,000 obtained for the lands east of the Mississippi River , would leave t he sum of $4,000,000 to be paid per capita, under special provisions of treaty stipulations, to the vVestern and Eastern Cherokees, including also t h e North Carolina or "East-ern Baud" of Cherok ees, giving one-third of the amonnt to t he vVestern Cherokees, or Old Settlers, and the other two-thirds to the other Cherokees, including also the said North Carolina or "Eastern Bancl" of Cherokees. The government made t his per capita settlement with the Cherokees in 1851-'52, in pursu an ce of acts of Congress of t h at elate. This settlement, it is true, has never been satisfactory to any portion of the C herokees; yet the North Carolin a or "Eastern Band" of Cherokees, like the others, 4 EASTERN BAND OF CHEROKEES. must look to the United States Government for the balance of said funds dne them, and not to the Cherokee Nation. Seventh. The 23d article of the treaty of 1866, which is the last and final legal ex-pression of the government on the question, settles it forever as to the lands, as well as funds of the Cherokee Nation, by providing that all the 9herok~e funds then (in 1866) in the custody of the government, as well as all. that ~rnght anse the_reafter from the sale of the Cherokee lands should be invested m Umted States registered stocks at their current value and the interest on the sa.me applied to national, school, and orphan purposes of the nation, by order of the Cherokee !'_at·ion. This provision of the treaty of 1866 is still in force and wipes ont every proviswn of law or treaty of a pre-vious date in conflict with it,' and of course excludes the said so-called "Eastern Band " of Cherokees. Eighth. As regards any "agreement" betw.een the. said "Easterll: Band." of 9hei:o-kees and t.he "Cherokee Nation," referred tom the b1lls under COIJSHleratwn, It will appear by reference to the opinion of Attorney-General Mason that. such agreement has been declared by him as of no effect. Also by reference to the opinions of Attor-neys-General Mason and Crittenden (which are sometimes misconstrued by these "Eastern Band" Cherokee claimants, as authorizing their claim to a part of the money andlall(] s of the Cherokee Nation in the West), it will appear that these opinions had ·no refer• nee whatever to the lands of the Cherokee Nation in the West, nor to their funds which have been since in·vested to the credit of the Cherokee Nation, hut only had reference to the "transportation· and subsistence funds" of said Cherokees, which were afterward accordingly provided for by the act of Congress of 1848 already re-ferred to; and to the "per capita" funds, received in consideration of t he Cherokee lands east of the Mississippi River, sold under the treaty of 1835-'36. Bnt if these opin-ioiJs ever had any weight in support of the enormous claims of t hese " Eastern Band" claimants (which we deny), they have long since been superseded by t he 23d article of the subsequent Cherokee treaty of 1866, which, as before stated, provides that all the fimds of the Cherokee Nation in the custody of the government at that time (1866), and all that might arise thereafter from the sate of the lands of the Cherokee Nation, shall be permanently invested in United. States stocks, and the interest on the same shall be paid to the Cherokee Nation in the West, on its order for school, orphan, aucl national purposes. (See Revision of Indian Treaties, p. -,) Ninth. If any wrong has been perpetrated upon these citizens of North Carolina stylecl the "Eastern Band" of Cherokees; or if the Cherokee treaties securing the alleged rights of these aggrieved individnals have been violated or not executed, the f~oult is justly chargeable to the government of the United States, notably to the Ex-ecutive Department, upon which it is incumbent to see the treaties faithfully executed, and not upon the Cherokee Nation. If, therefore, Congress is forced and compelled to pass a law to authorize these aggrieved incliviclua.ls to sue any party, the proper one to be sued, we hold, will he the Government of the United States, which alone is re-sponsible for the execution of the treaties, and the protection of t.hese individuals. And this is not only Ol.t1' view of the subject, bnt also is really the view taken and already followed by the Court of Claims itself aml the "Eastern Band" Cherokees, in 1855-'57, when that court, as already indicated, decided against th~t~n, In conclusion, we would respectfnlly submit, that if yonr government has in reality :r~rpetrated any wr~mg on these "E.a.stern. Band~· (so-called Cherokee) claimants by fmlmg to comply Wlt·h. your treaty st1pulatwus with them, we think that you should no~ take advant~g~ .of the wrong of your own government, and pass a law that will shift the resp~ms1b1hty of su~h wroug from your own great government to that of the Cherokee Natwn, and thus VISit UJ?On the said Cherokee Nation an injustice that will be greatly to.the advantage of cla1m agents and lobbyists, who are standing" behind the scenes," m the profits to be thus realized, while the Cherokee Nation is ueino- vie-~imized. Trn~ting; that yo~r honorable bodies will not pass the said bills or any sim-Ilar measures m vww of th1s, our solemn protest, we have the honor to be very respect-fully, · ' 0 W. P. ADAIR, D, H. ROSS, Cherokee Delegation. 

Eastern band of Cherokees. Remonstrance of the principal chief and delegates of the Cherokee Nation of Indians against the passage of any bill to allow the Eastern band of Cherokees to sue the Cherokee Nation

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Eastern band of Cherokees. Remonstrance of the principal chief and delegates of the Cherokee Nation of Indians against the passage of any bill to allow the Eastern band of Cherokees to sue the Cherokee Nation

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