[Letter], 1857 Nov. 11, Washington City [to the] Secretary of the Treasury / W[illia]m H. Thomas

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Washington City
Nov 11, 1857.
Hon [Honorable]
Sec. of the Treasury,
Sir,
As the attorney of the North Carolina Cherokees permit me to present for your consideration an act of Congress passed in their favor which bears date
July 29, 1848, and two decisions made thereon by two of your predecessors, [unclear text: Messr. [Messieurs] ] Corwin & Guthrie the former establishing a construction which was reversed by the latter, to the great injury of the Indians. The act referred to will be found in the 9th vol U S. laws, page 264.
Sec. 4. Be it enacted &c [et cetera] That the Secretary of War cause to be ascertained the number and names of such individuals and families including each member of every family of the Cherokee nation of Indians that remained in the State of North Carolina at the time of the ratification of the treaty of New Echota,
May twenty three eighteen hundred and thirty six, and who have not removed west of the Mississippi, or received commutation for removal and subsistance [subsistence], and report the same to the Secretary of the Treasury: Thereupon the Secretary of the Treasury shall set apart, out of any moneys in the treasury not otherwise appropriated


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a sum equal to fifty three dollars and fifty three cents for each individual ascertained as aforesaid and that he cause to be paid to every such individual or his or her legal representative interest at the rate of six, percent per annum on such per capita from the said
twenty third day of May eighteen hundred and thirty six to the time of the passage of this act and continue annully [annually] thereafter the said payment of interest at the rate aforesaid. "
Under the recited act the census was taken and the sum of $53.33 set apart in the Treasury for each Cherokee embraced on the Census Roll prepared by Maj [Major] John C. Mullay, which in the aggregate amounted [added text: to ] $80.901.61
In the year of
1850, as the attorney of the North Carolina Cherokees I made application to the second auditor for the payment of interest due to the legal representatives of deceased Cherokees, for whom the investment had had [had] been made. The auditor refused to make payment and


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referred the question of payment to the Secretary of the Treasury, the Hon [Honorable] Wm M. Meredith. The letter of the second Auditor making the reference bears date
9th Jan. 1850 and is hereunto appended marked, A.
[deleted text: The letter of the 2d [2nd] Auditor ] It was referred to the 2d [2nd] Comptroller for his decision thereon, by the Secretary of the Treasury.
On the
12th of Janurary [January] his decision of the question was made as shown by his letter of that date hereunto appended marked B, in which he decided that the interest had to be paid to the legal representatives of the Indians while the Government as trustee retained the possession of the fund. He says, to use his own language, in case of the death of a person interested in the fund the legal representative of such person would succeed to his rights and might claim the interest so long as the fund continued. This is in accordance with the language of the 4th section. "


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This decision was adopted by the Secretary of the Treasury Mr Meredith and concurred in to [unclear text: effect ] by his successor the Hon [Honorable] Ths. [Thomas] H Corwin, and by his assistant Mr Hodge, as shown by his letter to Col A M Mitchell the disbursing agent under date of
July 14, 1851, hereunto appended marked C. In which specific instructions are given with reference to making payment to the legal representatives of deceased Cherokees, you will be governed by the following general principles
To all Indians of lawful age now living payment of the respective sums due to each to be made to the Indians direct.
All sums due to minor children now deceased to be paid to the parents of living.
In cases of deceased wife or husband the amount due to be paid to the Survivor.
In all such instances where the deceased left neither husband nor wife (as the case may be) then to be paid to the


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legal representative "
Under these instructions the payments were made and the amount of the agent settled and thus approved by the accounting offices of the Treasury Department.
On the
3rd of March 1853, Mr Corwin went out and Mr Guthrie came in to office, from that date I am inclined to believe that in the year
1853 an examination of your office will prove that the principle adopted of paying the interest of deceased Cherokees to their legal representatives received the sanction of Mr Guthrie himself.
Be that as it may, on the
15th of Jan 1854 Mr Guthrie by himself or most probably by a subordinate in his office, attempted the change of the construction of the [added text: law ] and the established practice under it and to reverse the decision of his predecessors [unclear text: Messr [Messieurs] ] Meredith & Corwin and the accounting officers of the Treasury department,


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Evidence of which is found in the instructions to the agent Jas [James] W Terrell, appointed to pay the interest under date of
Jan 15th 1854, hereunto appended marked D which for reasons herein after set forth it is presumed should be set aside and the first construction of the law adopted in the payment of the interest now remaining deed.
In the instructions referred to which appear to have been signed; but never examined by Mr Guthrie, the following is the then opinion upon the payment of the interest It has been decided that the annuity in every case ceases with the death of the Indian, and that the proper representative of such Indian can receive only the annuity up to the time of his death. In all such cases therefore you will make the compensation at the rate of $6.39, per annum from the
29th of July 1851 to


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the day of the death of the Indian and pay the representatives of the amount due according to such computation instead of the amount assumed to be due in the statement."
The foregoing opinion contains conclusive evidence that Mr Guthrie never examined either it or the law to which it refers, I will repeat the evidence on which this assertion is based. The law made provision for the payment of six percent interest upon the sum of $53.33, which gives as the annual payment $3.19 98/100. In the opinion of Mr Gutherie or one of his subordinates it is said after stating that the interest would not be paid after the death of the Indian, it is stated that the agent would make the rate of compensation at the rate of $6.39 per annum, from the
29th of July 1851 to the day of the death of the Indian, can any one imagine that the HonHonorable Secretary of the Treasury of the United States would have committed this error if he had


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examined either the law or the opinion. If he had examined the law he would have seen that it was but six percent allowed the Indian, giving annual annuity of $319. 98/100, if he had examined the decision he would have seen that it was allowing twelve instead of six percent interest double as much as authorized by the law. The conclusion therefore seems irresistable [irresistible] that the opinion over this signature was not his opinion because it will not do to adopt the opposite conclusion [deleted text: because then it would be supposed ] that he was incapable of calculating simple interest.
But in addition to the absurd [unclear text: contradiction ] in the opinion reputed to Mr. [unclear text: Gutherie's ] it is in direct opposition to the views entertained by Congress upon making payment to the Cherokees of the principal as shown by the act of
1855 chap 204


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page 700, And be it further [unclear text: enacted ] That the Secretary of the interior is hereby authorized and required to cause to be paid to the North Carolina Cherokees embraced in the roll of John C Mullay or the legal representative of each of them as have died since their enrolment [enrollment] the sum of fifty three dollars and thirty three cents respectively for the expenses of their removal and subsistence now held in trust by the United States, according to the terms of the 4th section of the act of
twenty ninth July Annodomini eighteen hundred and forty eight."
I have now shown that the accounting offices of the Treasury and his secretaries decided in favor of paying interest to the legal representative of the Indians while the Government retained the possession of the principal.


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I will now try to prove that neither Mr. Guthrie nor the President of the United States had any power to change the dicision [decision] of the accounting [unclear text: officers ] of the Treasury. To establish this position I beg to leave to refer you to the opinion of William Wirt Attorney General vol 1. p 624, given upon the construction of the laws establishing the Treasury Department, In which opinion he says, With regard to the comptroller it directs that is shall be his duty to superintend the adjustment and preservation of all public accounts settled by the Auditor and certify the balance arising thereon to the Register no right of appeal from his decision to the President, (see act of
3rd March 1809, vol 4 p 221, sec 2) makes it the duty of the comptroller to direct the Auditor


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to audit and settle any particular amount and to report such settlement for his revision and final decision, so also the act of
3rd March 1817, which introduces the present organization of the Treasury Department
Thus in every instance the decision of the Comptroller is declared to be final and it is manifest that the law contemplates no further examination by any officer, after such decision."
But in addition to law plain Justice is on the side of the Indian. The Government has his money and had also millions held in trust for the different tribes. If she can claim that the interest does not descend to the heirs and legal representatives of the North Carolina Cherokees may she not extend the decision to all the tribes, and thus defeat the objects of the Government in creating annuities.

Your obt servt [obedient servant]
[Signed] Wm [William] H Thomas