22d CONGRESS, 1 st Session .
[Doc. No. 56.]
HO. OF REPS.

MEMORIAL
OF
THE CREEK NATION OF INDIANS.


JANUARY 17, 1832.

Referred to the Committee of the Whole House, to which is committed the bill (H. R. No. 128) to carry into effect the 4th article of the Treaty of the
8th of January, 1821, between the United States and the Creek nation of Indians, so far as relates to the claims of citizens of Georgia against said Indians for injury done prior to the passage of the act of Congress regulating intercourse with Indian tribes.






To the Honorable the Senate and House of Representatives of the United States in Congress assembled:

The memorial and remonstrance of the undersigned, special agent, and the chiefs, head men, and warriors of the Creek nation of Indians, now in the city of Washington,

RESPECTFULLY SHOWETH:
That your memorialists have learned, with feelings of deep regret and anxiety, that a bill has recently been reported to the House of Representatives, from its Committee on Indian Affairs, which they regard as seriously involving the deepest interests of those whom they represent. The bill in question is entitled "a bill to carry into effect the fourth section of the treaty of the
8th of January, 1821, between the United States and the Creek nation of Indians, so far as relates to the claims of citizens of Georgia against said Indians for injury done prior to the passage of the act of Congress regulating intercourse with Indian tribes."
The object of the bill is, to make a disposition of a large amount of money to which the Creek nation is advised and believes that it alone is clearly and justly entitled, to objects and purposes which the nation cannot countenance or sanction. It is to appropriate money, which they are advised belongs exclusively to them, in payment of claims, which are destitute of any legal or equitable foundation, and which the Creek nation has long since been completely and solemnly absolved from all obligation to discharge. Your memorialists beg leave to renew a claim, long since presented on behalf of those whom they represent, to have this money paid over to them; and, while they pray of your honorable bodies to reject the bill which has been reported, they venture also to ask that their rights may be investigated, and be recognised [recognized] as valid and subsisting.
By the treaty of
January, 1821, the Creek nation ceded to the United States a large and valuable tract of land. The consideration for the said cession was four hundred and fifty thousand dollars; unquestionably far less than the property was intrinsically worth. Of this sum, two hundred thousand dollars were to be paid to the Creek nation, in fourteen instalments, without interest; and the remaining two hundred and fifty thousand dollars were reserved for the purpose of paying to the State of Georgia "whatever balance may be found due by the Creek nation to the citizens of said State, whenever the same shall be ascertained, in conformity with the reference made by the commissioners of Georgia and the Creek nation, to be paid in five annual instalments, without interest."
The treaty in question was a compact entered into between the United States and the Creek nation alone. It operates between them, and upon them, alone. The price at which the lands ceded were valued, is the sum of four hundred and fifty thousand dollars; and to this extent the pecuniary responsibility of the United States is limited. The mode of payment, both as to time and person, is clearly designated, in case the balance awarded to Georgia should amount to the sum of two hundred and fifty thousand dollars; but, in case it should fall short of that sum, the question arises, whether the benefit is to enure to the United States or to the nation; whether the price, to be paid by the former, is to be affected, and its responsibilities diminished, by the circumstance that the citizens of Georgia should exhibit and establish a smaller amount of claim than had been originally contemplated; whether the effect of a failure, upon the part of Georgia, to prefer and prove the losses for which reimbursement was provided, should operate to exonerate the United States from the payment altogether; or whether it should merely change the direction of the purchase money, as between the only parties interested in those questions of injuries complained of, and compensation to the sufferers.
The State of Georgia, though nominally no party to the treaty, was beneficially interested in its stipulations; first, because the Indian title was extinguished, to a certain extent, in her favor, under the compact which subsisted between her and the Government of the Union; secondly, in as much as indemnification was provided for the claims of her citizens, out of the purchase money paid for the ceded territory.
Articles of agreement were, however, entered into between the State of Georgia and the Creek nation, bearing the same date with the treaty, containing a reference to it, and appended to it, by which the parties mutually agreed that all the claims on either side, of whatever nature or kind, anterior to the act of Congress of
1802, regulating the intercourse with the Indian tribes, should be referred to the President of the United States as a mutual friend and common umpire, by him "to be decided upon, adjusted, liquidated, and settled, in such manner, and under such regulations and restrictions, as he should prescribe." The articles of agreement further provided that the decision and award thus made and rendered should be binding and obligatory upon the parties.
In pursuance of these provisions, the President of the United States assumed upon himself to execute the trust confided to him, appointed a commissioner of high and unquestioned qualifications, invested him with what were deemed competent powers, prescribed for his government specific rules and regulations, and limited him be equally distinct and positive restrictions. If any defect existed in relation to this branch of the case, it would be, that the commissioner in question was only empowered to examine and report upon the claims which were to be preferred against the Creek nation, without being authorized to receive those which the nation might have against the citizens of Georgia; and that, in discharging the duty confided to him, he was only authorized to receive and adjudge upon the evidence adduced to substantiate the claims, while the party interested, in denying their existence, and diminishing their amount, had no opportunity afforded of vindicating their proceedings, or defending their interests. If it were now open to any one to except to these proceedings, it would lie with the Creek nation to make the objection to their regularity and sufficiency; for, although, as has been mentioned, the provisions of the treaty, and the stipulations of the articles of agreement, look with equal distinctness to the existence of counter claims for indemnity, and to an investigation to demands preferred by the Creeks, with a view to the ascertainment of a balance on the one side or the other, as the case might be, yet, no notification was ever given to the Creeks, no commissioner was ever appointed to receive and investigate their claims for injuries inflicted by their Georgia neighbors, but his authority was specially limited to the subject of Indian depredations, and they to be decided upon ex parte testimony alone.
Your memorialists do not design to prefer any complaint against this course of proceeding, or to ask a reversal of the judgment by which it has been terminated, although they cannot but regard it as obnoxious to just criticism, as looking exclusively to the wishes and interests of the one party, without the slightest reference to those of the other. They ask nothing further than that they shall now receive, at the hands of your honorable bodies, that measure of justice which has been awarded to them after such an examination of the case as has been made: that, after Georgia shall have been paid, to the uttermost farthing, every claim which has been allowed upon the case, as presented by the claimants themselves, although the President, in passing upon them finally, declared that "he thinks the value of the property, in almost all of the cases, very high, and the proof, in many instances, not such as to bring the cases strictly within the provisions of the treaties under which they rise;" although, with the same feelings of liberality towards the Georgia claimants, the President also allowed "the claims in all the cases which the commissioner had not felt himself authorized to decide for the claimant, but which he had recommended to the favorable notice of the President, with but two exceptions, which were not supported by the depositions of the original claimants,"* they shall be allowed, not the reimbursement of their claims for losses which they have sustained, but the simple payment of the balance retained by the United States out of the consideration money stipulated to be paid for the territory which was ceded by the Creek nation.
Your memorialists would beg leave to recal [recall] to the recollections of your honorable bodies the various efforts they have heretofore made to obtain this measure of justice. Nine years have elapsed since what has been officially designated the "final award" has been made;+ and several

* Mr. Calhoun's letter to Governor of Georgia,
June 27, 1822, Doc. 1827-8. Vol. II, Doc. 188, p. 16. [ Note: + Ibid. pp. 10, 16. ] years have transpired since the last instalment has been paid to the Georgia claimants in full of their demands. The Creek nation have ever claimed to have the residuum of the $250,000, reserved to meet their claims, paid over to them.
The bill which has been reported by the Committee on Indian Affairs, proposes to re-open the subject of Georgia claims, to permit fresh ones to be introduced for examination and allowance, and to pay interest upon all those which have been heretofore allowed, as well as those hereafter to be approved, and thus to distribute a fund, which your memorialists believe clearly and unequivocally to be the just right of the nation which they represent, without their concurrence or their consent.
Against the passage of this bill your memorialists pray leave to enter their solemn and formal remonstrance; and should your honorable bodies entertain, after an examination of the case, any doubts as to the reasonableness and justice of this claim, they solicit that they may be heard in its behalf, by their counsel, at the bar of your respective Houses.
On the present occasion, they would respectfully beg leave to submit, in a brief manner, some of the prominent reasons why the bill, as reported, should not pass, and some of the grounds upon which they rely for an act of appropriation in their favor.
The subject of litigation between the State of Georgia and the Creek nation, is one over which the Government of the United States possesses no other jurisdiction than such as has been conferred by the voluntary act of the parties. They agreed to submit the question in controversy to the arbitrament of the President; and his authority in the case having been created, must be measured by the language of the compact. If that authority now exists, no further aid is required from Congress. If it has terminated, nothing, it is respectfully submitted, but a similar consent of parties can call it into new existence.
But your memorialists would object to any new investigation or audit of the citizens of Georgia.
Although they entertain a confident expectation and firm belief, that, were the whole subject open to investigation, it would be in their power, not merely to diminish, by counter claims, the appropriation of any of the fund to the citizens of that State, but materially to reduce the amount of those which have been admitted and sanctioned, yet, after the lapse of so many years, they would prefer leaving the subject where it now remains, rather than encounter a new, and expensive, and protracted litigation.
Your memorialists would suggest, that the agreement appended to the treaty of
1821 recognises [recognizes] conflicting claims as existing between the parties, growing out of injuries mutually given and received. It recognises [recognizes] the necessity and propriety of having them adjusted by a common friend and impartial umpire, and closed for ever and irrevocably. All the grounds and evidence of claim are referred to the President of the United States, and the Government of the Union is left in possession of the fund, which, by all parties, is deemed adequate to meet any result. The President assumed to act under this appointment, and caused the claims of the one party to be investigated and adjusted, and proclaimed his final award. The money adjudged to be due has been paid in full; and the first question which presents itself, is, whether any case yet remains open for controversy and adjustment.
Before commenting upon this question, your memorialists would premise, that, in as much as the subjects in controversy were to referred the President, and only through the instrumentality of the articles of agreement, to which reference has been made, and the subject was entrusted exclusively to the President of the United States as a common umpire, it may confidently be submitted that your honorable bodies cannot entertain jurisdiction over the matter. The subject is not one for legislative enactment. Whatever powers ever were delegated, were delegated to the President, [Latin: eo nomine ] , and no other authority can interfere in the question.
But the President has long since promulgated his final award and decision; and your memorialists are advised and believe, that, when such a judgment has been formed and proclaimed, the judicial functions are terminated. No tribunal is empowered, according to its own discretion, and for an indefinite period of time, to re-assume its judicial power, to re-examine what it has already done, or to receive and act upon new evidence, and new items of claim, and thus to retain, in perpetuity, a control over the interests of the parties. Still more objectionable would be such a procedure, when the judgment has been carried into full execution, and when the parties beneficially interested have received the fruits of the decision.
Such has been, from the original rude state of mankind to its present advancement in refinement and civilization, the universal understanding and practice of all nations; and its justice and propriety are recommended by every consideration. When once a case has been decided by a tribunal having jurisdiction over the subject of litigation, and over the parties, and from whose decision no appeal is given, whether that tribunal be created by the general law of the land, or by the private act of the parties, the controversy is terminated.
Should your memorialists be considered as laboring under a error in the preceding views, they would submit, with great confidence, that, as a preliminary to any new investigation of the case, or action upon the subject, the money already paid should be restored to the Treasury; that the Creek nation be permitted to introduce testimony to invalidate or lessen the claims which have been adjudicated, that an opportunity be afforded them of exhibiting their counter demands, and sustaining them by evidence; and that the whole investigation be recommenced from the beginning.
Under the articles of agreement, the President was exclusively invested with power over the subject. His authority was unlimited, else might the Creek nation protest against a decision which was based upon an examination wholly ex parte of only one branch of the case submitted to his decision. Whether he was correct or not, in the course which he thought proper to pursue -- whether he was right or wrong, in the judgment which he has pronounced, your memorialists are advised that no other party is competent to assume jurisdiction over the case, or to reverse or set aside his award.
We may be permitted to add, that, according to the views we have taken of this matter, and objection to the binding and conclusive character of the award would come with a greater appearance of reason from the party whose claims were never received and acted upon by the arbitrator -- whose objections against those of his antagonist were never heard -- who could urgea gainst [urge against] the decision, that the arbitrator has expressly averred that the property, for which reimbursement is provided, is estimated, "in almost all cases, very high;" and that proof has been received, and yielded to, which, "in many instances, was not such at to bring the cases strictly within the provisions of the treaties under which they rise;" and that he has confirmed, with but two exceptions, every case which was recommended to his favorable notice by the commissioner who received and reported the testimony. We cannot but think that a party by whom such advantages have been enjoyed -- who has admitted the validity of the judgment -- who has received all the advantages which it afforded him -- who has the money actually in his pocket, should be held to be estopped from questioning its efficiency and its conclusiveness. We submit, and have submitted, but we feel ourselves entitled and bound, while we submit to the decision, to enforce its stipulations against the adversary party.
In addition to the general grounds of objection thus cursorily suggested, your memorialists would pray leave to lay before your honorable bodies, with equal brevity, some of the numerous reasons which may be assigned against the passage of the bill which has been reported. The bill provides for the payment of interest upon all the Georgia claims, as well those which hereafter be ascertained. This question of interest was distinctly presented to the notice of the President. It received his full consideration. He consulted the law adviser of the Government, and, in conformity with the opinion of that able counsel, rejected the whole claim. Can it be again raised and acted upon? We look in vain to the treaty and the articles of agreement for the right or the authority.
This point has been discussed with so much clearness and force of argument, in the opinion of Mr. Wirt, that your memorialists will refrain from undertaking the hopeless task of throwing new light upon the question. They would merely call the attention of your honorable bodies to one or two suggestions which did not then exist in the case, and which, therefore, are not embraced in the views presented by Mr. Wirt.
The provision made in the reported bill for the payment of interest comprehends the two classes of claims, as well those which have been heretofore adjusted and paid, as those which have never been exhibited by the claimants.
In regard to the first, conceding, for the sake of argument, that the payment of interest could ever have been deemed due in equity, and under the contract, still your memorialists would submit it as a clear and unquestionable legal proposition, that, by all codes which recognise [recognize] its validity, it is regarded merely as an incident to the principal debt, and does not, under any circumstances, subsist as a separate and independent right. The adjustment and payment of the principal sum carries with it, in all cases, the extinguishment of the demand for interest.
In regard to the second class, as the fund has been ready to be applied whenever the right was ascertained, and the claimants have pretermitted the fitting time and opportunity for presenting their claims, with the requisite proof in support of them, it would be a perversion of justice to allow them interest during a period of time in which they have been delayed payment by their own laches, and to reward their supineness and remissness by an allowance withheld from those who availed themselves of the opportunity which was presented. The force of this suggestion is greatly augmented by the consideration that the fund itself, out of which it is contemplated to provide payment, does not carry interest.
Your memorialists would beg leave to press again upon the consideration of your honorable bodies the reasons upon which they have solicited to have the unexpended balance of $250,000 paid over to them for the benefit of their constituents. This sum was part of the consideration money mentioned in the treaty of
January, 1821, to be paid by the Government of the United States for the lands then ceded by the Creek nation. The Government of the United States retained this sum as a fund out of which to pay any balance which might be found due to the citizens of Georgia under the articles of agreement. That balance having been ascertained and paid, the question arises, to whom does the residuum in right belong? It is understood that the impression exists, that the United States may retain the amount, to the exclusion of the Creek nation; and your memorialists humbly contend that those whom they represent are exclusively entitled to it.
Under the instruments in question, it cannot be contended, that, had a balance been ascertained as due to the Indians, the United States could have advanced any well founded pretension that it should be paid to them for their benefit: yet such is the only conclusion to which we could have arrived, under any interpretation of the agreement, which would substitute the United States in the place of the Creek nation, in the adjustment of the differences with Georgia; which would clothe the former with all the obligations, and invest it with all the rights which belonged to the latter. Yet, upon such a construction alone, can the right which your memorialists represent be denied.
The two instruments, the treaty and the articles of agreement, were not only executed contemporaneously, but they mutually refer to each other; and the terms of both should be consulted, in order to arrive at the correct understanding of either. The agreement submits the mutual claims of the contracting parties to the [Latin: arbitrium ] of the President, and his decision is to be final and conclusive between them. To this agreement the Government of the United States was not it terms a party; nor does the instrument either create or recognise [recognize] any interest in the result as belonging to the United States. If, however, she was the party who was alone interested to diminish the amount of the Georgia claims, and to increase those of the Creek nation -- if the entire balance, after the adjustment of these claims, was to belong to her -- if she had assumed the position, the rights, and the obligations of the Indians upon herself, it is equally difficult to account for the omission to make the judgment binding upon her, or the introduction of the clause which makes it obligatory upon the Creek nation.
It would present also a most extraordinary anomaly, if the construction against which your memorialists are contending be correct, that the Government of the United States should not have been a party to the award; that the Creek nation should have been empowered to select a tribunal to adjust differences, in which it had ceased to possess any interest, and to which the United States had, as is urged, entirely succeeded.
Not less extraordinary would it have been, upon this supposition, that Georgia should have assented to place the whole decision of her claims and liabilities in the hands of the executive magistrate of the country which was alone interested in the result. In a controversy between Georgia and the United States, the President could not have been recognised [recognized] as an impartial arbiter; nor can it be imagined that he ever would have been selected for so delicate as well as so important a trust. If the controversy continued between the original parties -- if their interests were alone at stake, there would be a manifest propriety in their choosing the party to whom the adjustment was to be confided, and in the selection which was made: but both circumstances are utterly at war with the idea that the United States were entitled to the balance which should appear to be due.
It is obvious that no such interest in the United States is given or recognised [recognized], in express terms, in either of the documents under consideration; and that it is only to be made out by refined argument and doubtful implication. Your memorialists have briefly submitted some considerations, which, to their minds, are conclusive, in showing the unreasonableness of such a construction. These views are, they believe, sufficient to receive the claim, which they submit to your honorable bodies, from all doubt or ambiguity.
Should they, however, be deceived in this particular, they ask that they may be permitted to show, by testimony of the highest character, that, in point of fact, all the parties to the treaty and agreement entertained, at the period of their execution, the impression and belief that the Creek nation would receive the balance which should appear due after the liquidation of the Georgia claims: that the delegates of the Creek nation were distinctly and unequivocally assured that such was the design of the instruments they were called upon to execute, and that they were executed in full confidence in these assurances. These facts your memorialists believe they shall be able to establish by plenary proof; and they will submit the evidence and their claim to your honorable bodies, with a perfect reliance on the justice of the Government, and with a hope that an act may be passed, without delay, directing the payment of the unexpended balance to them.

And your memorialists will ever pray, &c. [et cetera]
[Signed] JOHN H. BRODNAX, Special Agent .
[Signed] OPOITHYOHOLO, of Tuckebachee .
[Signed] TUCK-E-BACHEE-HAJO, of Cuseatah .
[Signed] TUCK-E-BACHEE MICCO, of Tuckebachee .
[Signed] BENJAMIN MARSHALL, of Coweataw .
[Signed] GEORGE STIGGINS.


January 9, 1832.