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While these unhappy events were in progress Major Armstrong, superintendent of Indian affairs, who was in Washington, submitted to the Commissioner of Indian Affairs, at the suggestion of the several Cherokee delegations, a proposition for the appointment of a commissioner clothed with full powers to adjust all difficulties between the various factions of their people.

The Commissioner replied that as the matter was before Congress and would likely receive the speedy attention of that body, no action would be justified by the executive authorities without first being assured that the proposition was founded in good faith and would result in some certain and satisfactory arrangement. He must also have assurance that there existed a firm determination on the part of the Department and of Congress to bring these troubles to a close before the adjournment of the latter body. The Commissioner, however, drew up a memorandum agreement for the signature of the several delegations of Cherokees representing the different factions of the tribe. It provided for the appointment of three commissioners, whose duty it should be to examine into all matters in controversy and adjust the same, and that all parties should abide absolutely by their decision, agreeing to execute and sign such treaty or other instrument of agreement as should be considered necessary to insure the execution of the award of the commissioners.495 This agreement was duly signed by the members of the several delegations present in Washington, and in pursuance of its provisions President Polk appointed496 Edmund Burke, William Armstrong, and Albion K. Parris commissioners with the powers and for the purposes above indicated. These commissioners at once entered into communication and negotiation with the three delegations representing the different factions of the Cherokee Nation, which were then in Washington, and the result was the conclusion of the treaty of August 6, 1846,497 in thirteen articles, making detailed provision for the adjustment of all questions of dispute between the Cherokees themselves and also for the settlement of all claims by the Cherokees against the United States.498 This treaty, with some slight amendments, was ratified and proclaimed by the President on the 17th of the same month; an abstract of its provisions has already been presented. It was not until this treaty that the Ross party ever consented in any manner to recognize or be bound by the treaty of 1835.499

Objects of the treaty.—The main principle involved in the negotiation of the treaty of 1846 had been the disposition on the part of the United States to reimburse to the Cherokee fund sundry sums which, although not justly chargeable upon it, had been improperly paid out of that fund.500 In the treaty of 1835 the United States had agreed to pay to the Cherokees $5,000,000 for their lands and $600,000 for spoliations, claims, expenses of removal, etc.501 By the act of June 12, 1838,502 Congress appropriated the further sum of $1,047,067 for expenses of removal. As all these sums were for objects expressed in the treaty of 1835, the commissioners who negotiated the treaty of 1846 regarded them as one aggregate sum given by the United States for the lands of the Cherokees, subject to the charges, expenditures, and investments provided for in the treaty. This aggregate sum was appropriated and placed in the Treasury of the United States, to be disposed of according to the stipulations of the treaty. The United States thereby became the trustee of this fund for the benefit of the Cherokee people, and were bound to manage it in accordance with the well known principles of law and equity which regulate the relation of trustee and cestui que trust.

Adjudication of the treaty of 1835.—In order, therefore, to carry out the principle thus established by the treaty of 1846, Congress, by joint resolution, of August 7, 1848,503 required the proper accounting officers of the Treasury to make a just and fair statement of account with the Cherokee Nation upon that basis. The joint report of the Second Comptroller and Second Auditor was submitted to Congress504 after a full and thorough examination of all the accounts and vouchers of the several officers and agents of the United States who had disbursed funds appropriated to carry into effect the treaty of 1835, and also of all claims that had been admitted at the Treasury.

The result of this examination showed that there had been paid—

For improvements	$1,540,572 27
For ferries	159,572 12
For spoliations	264,894 09
For removal and subsistence and commutation therefor, including $2,765.84 expended for goods for the poorer Cherokees under the fifteenth article of treaty of 1835, and including also necessary incidental expenses of enrolling agents, conductors, commissioners, medical attendance, and supplies, etc.	2,952,196 26
For debts and claims upon the Cherokee Nation	101,348 31
For the additional quantity of land ceded to the nation	500,000 00
For amount invested as the general fund of the nation	500,880 00
	____________
The aggregate of which sums is	6,019,463 05
which, being deducted from the sum of	6,647,067 00
	____________
agreeably to the directions of the ninth article of the treaty of 1846, left a balance due the Cherokee Nation of	627,603 95

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 resolved506 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 1833513 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 close516 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 report519 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.

5. Having received credit for their proportion of the $600,000, under article three of the treaty of 1836, they were chargeable with their proportion of that fund used for removal, etc., i.e., 2,495 Indians at $53.33 per head, amounting to $133,058.35.

6. The Eastern Cherokees were properly chargeable with the removal of the Ross party, and therefore they received credit for the $1,047,067 appropriated by the act of June 12, 1838.

7. In the settlement, the $5,600,000 fund was charged with the removal and subsistence of 18,026 Indians at $53.33¹/₃ per head, amounting to $961,386.66.520

This report, with accompanying letters of the Commissioner of Indian Affairs and the Secretary of the Interior, was transmitted to Congress by the President, with a special message, on the 17th of December, 1883.

Other questions under the treaty of 1835.—There were two other questions about which the parties could not agree, and upon which, by the eleventh article of the treaty of 1846, the Senate of the United States was designated as the umpire. The first of these was whether the amount expended for the one year's subsistence of the Eastern Cherokees, after their arrival in the West, should be borne by the United States or by the Cherokee funds, and, if by the latter, then whether subsistence should be charged at a greater rate than $33¹/₃ per head.

The Senate committee to whom the subject was referred for report to that body found much difficulty, as shown by their report, in reaching a just conclusion. They observed that the faulty manner in which the treaty of 1835 was drawn, its ambiguity of terms, and the variety of constructions placed upon it, had led to a great embarrassment in arriving at the real intention of the parties, but that upon the whole the opinion seemed to be justified that the charge should be borne by the United States. By a strict construction of the treaty of 1835, the expense of a year's subsistence of the Indians was no doubt a proper charge upon the treaty fund and was so understood by the Government at the time. In the original scheme of the treaty furnished the commissioners empowered to treat with the Indians this item was enumerated among the expenditures, etc., to be provided for in its several articles, and which made up the aggregate sum of $5,000,000 to be paid for the Cherokee country. The Secretary of War, in a letter addressed to John Ross and others in 1836, had said that the United States, having allowed the full consideration for their country, nothing further would be conceded for expenses of removal and subsistence. The whole history of the negotiation of the treaty shows that the $5,000,000 was the maximum sum which the United States were willing to pay, and that this was not so much a consideration for the lands and possessions of the Indians as an indemnity to cover the necessary sacrifices and losses in the surrender of one country and their removal to another.

On the other hand, among the circumstances establishing the propriety of a contrary construction may be mentioned the language of the eighth article of the treaty, that "the United States also agree and stipulate to remove the Cherokees to their new homes and to subsist them one year after their arrival there." This language imports pecuniary responsibility rather than a simple disbursement of a trust fund. In the "talk" also which was sent521 by President Jackson to the Indians to explain the advantages of the proposed treaty, he mentioned that the stipulations offered "provide for the removal at the expense of the United States of your whole people, and for their subsistence a year after their arrival in their new country."

It was also the common practice of the United States in removing the Indian tribes from one locality to another to defray the expense of such removal, and this was done in the cases of their neighbors, the Chickasaws, Choctaws, Creeks, and Seminoles. It is a matter of but little surprise, therefore, that a conflicting interpretation of this treaty through a series of years should have produced grave embarrassments.

Independent, however, of the literal provisions of the treaty of 1835, there existed other grounds upon which to base a judgment favorable to the claims of the Cherokees. The treaty with the supplementary article was finally ratified on the 23d of May, 1836, and by its provisions the Cherokees were required to remove within two years. It had been concluded (in the face of a protest from a large majority) with a small minority of the nation. Within the two years those who had favored the treaty had mostly emigrated to the West under its provisions.522 The large majority of the nation, adopting the counsels of John Ross, had obstinately withstood all the efforts of the Government to induce them to adopt the treaty or emigrate. They had repudiated its obligation and denounced it as a fraud upon the nation. In the mean time the United States had appointed its agents under the treaty and collected a large military force to compel its execution. The State of Georgia had adopted a system of hostile legislation intended to drive them from the country. She had surveyed their territory and disposed of their homes and firesides by lottery. She had dispossessed them of a portion of their lands, subjected them to her laws, and at the same time disqualified them from the enjoyment of any political or civil rights. In this posture of affairs, the Cherokees who had never abandoned the vain hope of remaining in the country of their birth or of obtaining better terms from the United States made new proposals to the United States through John Ross and others for the sale of their country and emigration to the West. Still pursuing the idea that they were aliens to the treaty of 1835 and unfettered by its provisions, they proposed to release all claim to their country and emigrate for a named sum of money in connection 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 expenses thereof. To avoid the necessity of enforcing the treaty at the point of the bayonet and to obtain relief from counter obligations to Georgia by the compact of 1802 and to the Cherokees by the treaties of 1817 and 1819, the proposal was readily acceded to by the United States authorities.

On the 18th of May, 1838, the Secretary of War addressed a reply to the proposals of the Cherokee delegation, in which he said:

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 issued526 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 addressed527 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.