Argument of Thomas and Baxter in favor of paying the suspended interest under the act of July 29, 1848

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[unclear text: John ] Gibbs & Wife
From their old friend
ARGUMENT OF THOMAS AND BAXTER IN FAVOR OF PAYING THE SUSPENDED INTEREST UNDER THE ACT OF
JULY 29, 1848 .
G. S. GIDEON, Printer, No. 511 Ninth street, Washington, D. C.






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WASHINGTON CITY, D. C.,
August 29, 1859.
Hon. HOWELL COBB,
Secretary of the Treasury .
SIR:
[added text (appears to be different ink and hand): [unclear text: This ] ] As the representative of the North Carolina Cherokee Indians, I beg leave to bring to your notice that a large portion of the interest due to said Indians upon a per capita of $ 53 33 set apart in the Treasury, bearing an interest of six per cent., under the act of
July 29, 1848, remains unpaid; and the payment has been suspended without any reason being assigned for the suspension, which leads to the supposition that it has originated in some misapprehension of the act, with reference to the payment of interest being continued to the legal representatives of such Cherokees as have died since
May 23, 1836. The act on its face seems to be so plain that it requires no interpretation, especially to one at all acquainted with the circumstances which gave rise to it. The act assigned the duty of procuring the census of the North Carolina Cherokees who resided in that State on the
23d [3rd] of May, 1836, and had not received commutation.
The act, which on its face seems plain to one, like myself, familiar with the causes which gave rise to its passage, may require some explanation to one not familiar with the origin and circumstances which led to its passage by Congress. I therefore beg leave to submit a few remarks and references in relation to the act. It, as you will see, first directs the Secretary of War "to cause to be ascertained the names and number of the North Carolina Cherokee Indians who remained in the State of North Carolina on the
23d of May, 1836, and to report the same to the Secretary of the Treasury, leaving out of the census such as had previously been paid a commutation for removal and subsistence." Upon the receipt of this census, it was by the act made the duty of the Secretary of the Treasury "to set apart, out of any moneys in the Treasury not otherwise appropriated," $ 53 33, as a per capita for each Indian ascertained as aforesaid, bearing an interest of six per cent., payable annually to said Cherokees or their legal representatives, commencing on the
23d of May, 1836, and to be continued annually thereafter, the said payment of interest.
At an early day after the passage of the act, its interpretation with reference to payments being continued to an indefinite period


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to the legal representatives of the Cherokees embraced in the census, which was submitted to your predecessor, Mr. Meredith, and by him referred to Judge Parris, the Second Comptroller of the Treasury. This reference was probably made because Judge Parris was known to be familiar with the Cherokee treaty of
1835, and was one of the commissioners appointed by President Polk to negotiate the subsequent Cherokee treaty of
1846, consequently familiar with all the circumstances which gave rise to the passage of the act.
Marked A, hereunto appended, is the report of the committee of Congress on which the act of
July 29, 1848, was based, and which at the time was before Judge Parris.
Marked B, is Judge Parris's decision on the question.
This decision was by Mr. Corwin, who succeeded Mr. Meredith, referred to Mr. Whittlesey, First Comptroller, who, as the original endorsement on the papers on file in your office proves, concurred in opinion with Judge Parris, and the decision of Judge Parris thus became the settled construction of the act of
July 29, 1848, by your department.
Marked C, are the instructions which issued to Mr. Mitchell, special agent appointed to pay the arrearages of interest due, under the act; not only what was due from the
23d of May, 1836, up to the passage of the act, but subsequent thereto; not only to the living, but to the legal representatives of the Cherokees who had died since the
23d of May, 1836.
The papers on file in your office prove that the payments were thus made by Mr. Mitchell, and that his accounts for those disbursements were settled by the accounting officers of the Treasury Department; which must be regarded as a final settlement of the construction of the act of
July 29, 1848, unless manifest error was made apparent. No such error was discovered -- in fact, the law seems susceptible of no other interpretation.
The language of the law itself proved that Congress directed that the interest should be paid not only to the living Cherokees embraced in the census, but also to the legal representatives of all that had died since the
23d of May, 1836. If Congress had intended that the interest should cease with the death of the Indians, why not have so said in the law; why direct the payment to the legal representatives of deceased Cherokees, and direct its continuance annually thereafter?
It seems that the suspension of the payment of interest has been in consequence of an opinion formed in the absence of the causes which led to the passage of the act, and in absence of the fact that the decisions had already been made settling the construction of the act. Marked D, is the explanation of the Hon. Peter G. Washington, formerly Assistant Secretary of the Treasury, at the time the rule was adopted under which the interest was suspended,


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which proves that it was not intended as a reversal of any decision previously made. And this is apparent on the face of the decision and instructions to Mr. Terrell; for certainly, if intended as a reversal of a previous decision, some reason would have been assigned. No Secretary would have reversed the decision of his predecessor without assigning some reason.
But independent of the first construction established, Congress has, in the passage of the subsequent act of
1855, established that construction of the act of
July 29th, 1848, and directs the payment of a large portion of the principal set apart under that act.
And be it further 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 census of John C. Mulloy, or the legal representatives of such of them as have died since the 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
July, anno Domini eighteen hundred and forty-eight."
Marked E, is the legal argument of Sidney S. Baxter, esq. [esquire], upon the right of your department to pay over the suspended interest.
But in addition to the authority which the law gives to pay over the interest, which has been suspended so long as the principal shall be retained, it is submitted that much trouble would be saved by it to your department, and to the agent appointed to make payment.
Under the decision of Judge Parris, adopted by Mr. Corwin, only one pay-roll would be required, because that furnishes the amount to be paid in each case to the living or the legal representatives of deceased Cherokees. Under the rule adopted of paying only the living Indians, a new census roll has to be prepared in each year, to show the individuals still living, and to leave out the names of the Cherokees reported by the agent to have died since the previous estimate and payment.
Previous to your making a final decision in this case, permit me to request a personal interview for myself and attorney.

Respectfully submitted:
[Signed] WM. [William] H. THOMAS, Att'y [Attorney] for the Eastern Cherokees.



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A.
THIRTIETH CONGRESS -- FIRST SESSION.
Report No. 632.
[To accompany bill H. R. No. 508,]
HOUSE OF REPRESENTATIVES.
CHEROKEE INDIANS IN NORTH CAROLINA.

MAY 18, 1848.
Mr. McILVAINE, from the Committee on Indian Affairs, made the following REPORT:

The Committee on Indian Affairs, to whom was referred the resolution of the House, instructing the committee to "inquire into the propriety of causing the sum allowed for removal and subsistence, under the Cherokee treaty, to be paid to such Cherokees as were not required under the provisions of those treaties to remove west of the Mississippi," respectfully report:
That they have bestowed more than ordinary time and labor upon the subject embraced in this resolution, and after the most thorough investigation, they have come to the conclusion that the allowance would be proper and just, and proceed to offer some of the reasons which led them to this conclusion.
The subject of conflicting jurisdiction of State and Indian government within many of the States of the Union has engaged the attention of the Government from an early day. To some of the States it stood bound to extinguish the Indian title at the earliest practicable period. The desire of the Government to rid itself of this embarrassment, and a further desire to gather the various Indian tribes (remaining within the States) together in a country separate from the whites, and free from State or territorial jurisdiction, led to the establishment of a system of ultimate extinction of the Indian title by the General Government within the States, by an exchange of territory and the removal of the Indians, as far as practicable, to the country west.


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By the treaty of
1828 made with the Cherokees residing in Arkansas, and who had previously emigrated thereto under the advice of the Government from
1808, a cession of seven millions of acres of land was made to the Cherokee nation, west of the Territory of Arkansas. And it was provided that whenever any of the tribe then remaining within the limits of any of the States east of the Mississippi might desire to remove west, the cost of the emigration of all such should be borne by the United States, and their subsistence for twelve months after their arrival at the agency. But, in consequence of the valuable property held by the chiefs and other Indians, their advancement in civilization, and their aversion to leaving the graves of their fathers, they emigrated but slowly. Georgia, within whose limits the greater part of the nation resided, becoming impatient to possess herself of their valuable possessions, urged the Government to a speedy extinguishment of the Indian title, and, by the adoption of a stringent policy towards the Indians, inclined them to listen to propositions for their removal; and in
February, 1835, (see treaty of
December, 1835, and House document 286, 1st session, 24th Congress,) it was agreed between a delegation of the Chereokee nation and the President of the United States, after some unsuccessful attempts at negotiation, to submit to the Senate "to fix the amount which should be allowed the Cherokees for their claims, and for a cession of their lands east of the Mississippi river." Whereupon the Senate advised "that a sum not exceeding five millions of dollars be paid to the Cherokee Indians for all their lands and possessions east of the Mississippi river."
A portion of the tribe were, however, still averse to removal, as well as to the terms designated by the Senate, (House document 286, 1st session, 24th Congress,) but a project of a treaty was,
March 14th, (see same document) arranged upon the basis of the Senate proposition, between Jno. [John] F. Schermerhorn, a commissioner on the part of the United States, and another delegation of the Cherokee nation, representing that portion of the tribe which was favorable to removal, which was, by direction of the President, to be submitted to the nation for their occurrence, and which was submitted to a general council of the nation, convened for another purpose, at "Running Waters," on the
20th July, (see same document.)
The ninth article of this project stipulated for the removal of the Indians to their new homes, and their subsistence for one year after their arrival there. And further provided that such of them as were capable of removing and subsisting themselves should be permitted to do so, and should be allowed for the same twenty-five dollars for removal, and thirty-three dollars and thirty-three cents for subsistence. And the fourteenth article provided that "those individuals and families of the Cherokee nation that are averse to


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a removal to the Cherokee county west of the Mississippi, and are desirous to become citizens of the States where they reside, and such as in the opinion of the agent are qualified to take care of themselves and their property, shall be entitled to receive their due portion of all the personal benefits accruing under this treaty for their claims, improvements, ferries, removal and subsistence ; but they shall not be entitled to any share or portion of the funds vested or to be expended for the common benefit of the nation." And President Jackson accompanied this project with an address "to the Cherokee tribe of Indians east of the Mississippi river," recommending to them the acceptance of its terms. The Secretary of War, in his letter to the commissioners, announcing their appointment, (Senate document 120, 2d [2nd] session, 25th Congress,) says: "The great object being to insure the entire removal of the tribe, no reservations will be granted. If individuals are desirous of remaining, they must purchase residences for themselves like white persons, and must be left to the care of the laws of the States within which they reside." The commissioner also addressed the council upon this subject, and in explanation of the terms proposed he said: "Article fourteenth makes provision for such Cherokees as do not wish to remove west of the Mississippi, and wish to become citizens of the States where they live, and are qualified, in the opinion of the agent, to take care of themselves. They will have paid them here all that is due them for their claims, improvements, ferries, per capita allowance, removal and subsistence; but they must buy their own lands like other citizens, and settle where they please, subjects of the laws of the country where they live."
This proposition, slightly modified, was again submitted to a general council, held at the Red Clay council ground, on the
30th October, (House doc. 286, 1st ses. 24th Cong.,) and with a similar explanation, as will appear from paper A, appended to this report. But from the general repugnance of the nation to the terms offered them, nothing definite was agreed upon until the
29th of December, when a treaty was arranged with the committee, representing a small portion of the tribe, convened at New Echota, on that day, (same doc.,) upon the basis proposed by the President, with some modification of details. The 8th article of this treaty fixes the amount to be paid by the government, for removal and subsistence, to such as should remove and subsist themselves at fifty-three dollars and thirty-three cents; and the 12th article (corresponding with the 14th of the projet ) provides that "those individuals and families of the Cherokee nation that are averse to a removal to the Cherokee country, west of the Mississippi, and are desirous to become citizens of the States where they reside, and such as are qualified to take care of themselves and their property, shall be entitled to receive their due portion of all the personal


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benefits accruing under this treaty for their claims, improvements, and per capita, as soon as an appropriation is made for this treaty."
Although in the terms here used, to embrace this provision, the words removal and subsistence are omitted, it is manifest from Mr. Schermerhorn's journal, and the statement of Mr. Wm. [William] Rogers, paper B, that the commutation for removal and subsistence was understood to be retained by both the contracting parties.
Mr. Schermerhorn, in his journal, after citing the provision which he had allowed for pre-emptions, and for the advance of two years' annuities for the benefit of the poorer Indians, says, "in the other articles of the treaty no material alterations of the treaty will be found." (See doc. 120, 2d ses. 21st Cong.)
Pending the consideration of the treaty in the Senate, the Cherokees residing in North Carolina, who had been kindly dealt with by that State, and were generally averse to removal, and who had theretofore taken no part in the negotiations, learning that the treaty, when ratified, would be held binding upon the whole nation, and that their lands would be sold from them, appeared by their representative, Wm. [William] H. Thomas, to see that their equal rights were properly guarded. (Sen. doc. 408, 1st ses. 29th Cong.)
Mr. Thomas, upon an examination of the treaty, did not consider the 12th article sufficiently explicit to secure the rights of the people whom he represented, but was assured by the commissioner and the chiefs who negotiated the treaty, and who were present in this city, (Sen. doc. 408, 1st ses. 29th Cong.,) that the terms used were sufficiently comprehensive to cover all their interests, and that "there could be no danger of any construction being given to the treaty which would deprive the Cherokees, who remained last, of their removal and subsistence allowance." And, whether charged upon the original fund or directly upon the treasury of the United States, as was subsequently provided, it is equally necessary to place those who, having relinquished their property, chose to remain "and purchase residences for themselves," upon equality with those who were removed west, that they should receive commutation for removal and subsistence.
To secure, beyond the possibility of a doubt, the interests of the Carolina Indians, Mr. Thomas procured from the treaty delegation an agreement, which runs as follows: (On file in War Department.)
"The delegation, whose names are hereunto annexed, for the Cherokees who have emigrated, and expected to emigrate, to their new homes west of the Mississippi, of the first part, and William H. Thomas, for the Cherokees belonging to, or which shall belong to, the following towns and settlements: Qualla, Alarka, Aquona, Stekosh, and Che-o-ih, with their respective settlements, expected to remain east, of the second part:"
ART. 1. It is admitted that the Cherokees above mentioned are


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entitled to an equal share, proportioned to their numbers, in all the lands belonging to the Cherokee nation of Indians. And notwithstanding they have been deprived of their share of the annuities since the year
1820, are nevertheless entitled to all sums in the possession of the President of the United States, for the use of, and annuities due from the United States to the Cherokee nation of Indians, (except such as belong exclusively to the Cherokees now living west of the Mississippi,) their proportional share of which benefit was intended to be secured to them, by the 12th article of the New Echota treaty.
ART. 2. (Immaterial.)
ART. 3. It is further agreed, that if any construction be given to any of the articles of the New Echota treaty, whereby the Cherokees belonging to, or which may belong to, said towns and settlements, shall be deprived of an equal share, proportioned to their numbers, in all the sums arising from a sale or transfer of the common property mentioned in this first article of this agreement, payable to the Cherokee nation of Indians or people, we will request the President and Senate of the United States, and they are hereby requested, to allow them such supplemental articles thereto as shall remove such improper constructions, and enable them to receive their equal proportioned share, as above mentioned.
ART. 4. It is further understood that one claim, to which said Cherokees desiring to remain are entitled by the 12th article of the New Echota treaty, amounting to fifty-three dollars and fifty-three cents, intended to place them on terms of equality with those that chose to emigrate within two years from the ratification of the above treaty, who are allowed that sum for removal and subsistence, out of the money arising from the sale of the common property, shall be placed by them on interest in the State Bank of North Carolina, or some other safe institution, to furnish those desiring to emigrate to their new homes in the west with removal and subsistence, without which they might not be able to reach their friends in the west.
Articles 5 and 6 immaterial.
Signed by Major Ridge, William Rogers, Elias Boudinot, and others of the treaty delegation, and Wm. [William] H. Thomas, agent, on the part of the Cherokees expected to remain east after the expiration of two years.
This agreement was submitted to the Commissioner of Indian affairs, by Mr. Thomas,
July 4, 1836, with a request that a decision of the Secretary of War might be had upon the claims of the North Carolina Indians therein referred to, and on the 19th he received the following answer: (Sen. doc. 408, 1st ses. 29th Cong.)

"SIR: Your communication of the 4th instant has been laid before the Secretary of War, with the accompanying documents,


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relating to the interest of the Cherokees residing in the State of North Carolina, in the treaty of
December 29, 1835.
I am instructed to inform you, that it is the impression of the department that the Cherokees in North Carolina have an interest, proportionate to their numbers, in all the stipulations of that treaty."


[Signed] "C. A. HARRIS,
" Commissioner.

[Signed] "WM. [William] H. THOMAS, Esq. [Esquire], Scott's Creek, Haywood, N. C. "

B.


TREASURY DEPARTMENT, SECOND COMPTROLLER'S OFFICE,
January 12, 1850.
SIR:
The question presented by the Second Auditor in his letter referred to me from your Department is by no means free from doubt.
By the treaty with the Cherokee nation of
1835, ratified in
1836, the Cherokees stipulated to remove to their new homes west of the Mississippi within two years from the ratification of said treaty. It has been decided that by the provisions of the treaty the expense of their removal, and of one year's subsistence after their arrival at their new homes, was a proper charge upon the sum paid by the United States for the Cherokee country east of the Mississippi. Such persons and families as removed themselves were to be allowed, in full for all claims for the same, twenty dollars for each member of their family, and thirty-three dollars and thirty-three cents in lieu of their one year's subsistence. A portion of the nation residing in North Carolina did not remove, and by repeated decisions of the Executive, confirmed, I think, by Congress, were deemed not entitled under the treaty to the commutation allowance above mentioned for removal and subsistence. A final settlement being about to be made with the Cherokee nation, under the treaty of
1846, the North Carolina Cherokees preferred their claims to Congress, and the fourth and fifth sections of the act of
July 29, 1848, chapter 118, provide for their relief. As whatever allowance that may be made under the fourth section is to be charged to the Cherokee nation, according to the proviso in the fifth section, the United States have no pecuniary interest in this question.
After a careful examination of the two sections above mentioned, I am inclined to the opinion that it was not intended that any part of the "amount required to be funded for the benefit of the Cherokees in North Carolina," and "charged to the general Cherokee [added text: 2 ]


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fund," as directed in said proviso, should ever again be added to that fund, but that it should be appropriated for the benefit of the North Carolina Cherokees, to defray the expense of their removal and one year's subsistence, in case they should remove; otherwise by yielding them an annual interest of six per cent.
If this view be correct, it would follow, that 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 fourth section; and although I perceive difficulties in carrying it into effect for an unlimited time, yet I find no alternative but that of eventually returning the whole fund, except what may be withdrawn for actual removal, and which will probably be nothing, to the Cherokee nation. It is believed that there is nothing in the law indicating that such was the intention of those who framed it.

With entire respect, & c. [et cetera] ,
(Signed)
[Signed] ALBION K. PARRIS, Comptroller.

[Signed] Hon. W. M. MEREDITH,
Secretary of the Treasury.
The above I certify to be a true copy from the records of this office.
[Signed] J. MADISON CUTTS, Comptroller.
SECOND COMPTROLLER'S OFFICE,
August 26, 1859.


TREASURY DEPARTMENT,
July 14, 1851.
SIR:
You having been appointed special agent for paying off Indians in the old States, and particularly the North Carolina Indians, their removal and subsistence fund, under the authority contained in the 9th section of the Indian appropriation act approved the
27th February, 1851, I transmit herewith, for your guidance, a statement showing the number and names of the Cherokee Indians, of North Carolina, entitled to receive payment of interest under the provisions of the act of
29th July, 1848; also the amounts of fees retained and the amounts due to each Indian on the
29th July, 1851; making the aggregate sum due and payable on the 29th of this month twenty-two thousand six hundred and seventy-two 77/100 dollars, as prepared in detail in the office of the Second Auditor of the Treasury, upon the report of the Secre-


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tary of the Interior of
17th September, 1850, made in pursuance of the 4th section of the act of
29th July, 1848. The above sum of $ 22, 672 77 will be advanced to you.
In making the payments in pursuance of the foregoing, you will be governed by the following general principles, viz:
To all Indians of lawful age, now living, payment of the respective sums due to each, to be made to the Indian direct.
All sums due to minor children, now deceased, to be paid to the parents, if living.
In cases of a deceased wife or husband, the amount due to be paid to the survivor.
In all such instances where the deceased left neither father, mother, nor husband, nor wife, as the case may be, then to be paid to the legal representative; and in cases of conflict between administrators upon the same estate, to pay to the one who, in your judgment, you may think most responsible.
Where any portion of the amount to be paid has been legally assigned to other parties, for a valuable consideration, by those who were legally authorized to receive it and to make such assignment, you are authorized to respect such assignment, and to pay the amount to the assignee whenever you are convinced that the transaction has been made in good faith and on fair and legal grounds.
At your suggestion, and for the purpose of assisting you, not only in the performance of the duty, but also in the protection of the money, Mr. L. R. Smoot has been detailed to accompany and act with you, in carrying into effect the object of your mission; and it is desirable that the whole business should be closed up with as much promptness as its nature and circumstances will admit.
The sum of $ 500 has been advanced to you on account of your compensation and the expenses of the commission; the whole appropriation for which being limited to $ 1, 000, that sum must not, in any case, be exceeded for your compensation and the entire expenses, including those of Mr. Smoot and all contingencies attending the business.
Such portion of the funds intrusted to your care for the payment of these Indians as may not be called for by the parties or their representatives, to whom it is due, or which, from any other cause, may remain in your hands, you will immediately, on the conclusion of your mission, refund into the Treasury.

Very respectfully, your obedient servant,
(Signed)
[Signed] WM. [William] L. HODGE, Act. Sec. [Acting Secretary] Treasury .

[Signed] Col. A. M. MITCHELL ,
Washington .
A true copy from the records of the Treasury Department.
[Signed] GILBERT RODMAN ,
Chief Clerk.



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WASHINGTON,
Sept. 8, 1859.
SIR:
William H. Thomas, esq. [esquire], agent of the Cherokees residing in North Carolina, informs me that he has claimed at your department, under the various treaties made with said Indians, and the acts of Congress passed to carry them into effect, the commutation allowance of $ 53 33 for each Indian, with the interest thereon at the rate of six per cent. per annum; and that he supposes that a decision made by your predecessor, Mr. Guthrie, to the effect that the interest on the said $ 53 33 should cease and determine upon the death of each Indian, has created a difficulty in your mind to the allowance of the claim.
Upon this representation of Mr. Thomas, and at his request, I hope you will not consider it officious in me to state that I was fully cognizant of the facts before Mr. Guthrie, and the considerations operating upon his mind in making the decision referred to. Mr. Guthrie had nothing before him but the act of
29th July, 1848, and in simply giving effect to the literal provisions of that act, he felt the difficulty, not to say the impracticability, of continuing to pay in more and more minute sums, as the Indians should die off, to their immediate and successive heirs, for an indefinite period of time.
Had Mr. Guthrie thought it necessary to look into the treaties and become satisfied, as he would doubtless thereby have done, that this commutation allowance of $ 53 33 was a trust fund reserved for the benefit of the Indians, his decision could only have been that the interest must necessarily accrue to the Indians and their legal representatives, until the capital sum should be extinguished by payment.

I am, very resp'y [respectfully] ,
[Signed] P. G. WASHINGTON.

[Signed] Hon. HOWELL COBB, Secretary of the Treasury.

E.
Opinion for Mr. Thomas.

The Indian appropriation bill, approved
July 29th, 1848, 9 S. L., pages 264-'5, contains the following sections:

"Section 4. And be it further enacted, 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 23, 1836, and who have not removed west of the Mississippi,


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or received the commutation for removal and subsistence, and report the same to the Secretary of the Treasury; whereupon the Secretary of the Treasury shall set apart, out of any money in the treasury not otherwise appropriated, a sum equal to fifty-three dollars thirty-three cents for each individual 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 per cent. per annum on such per capita, from the
23d May, 1836, to the time of the passage of this act, and continue annually thereafter said payment of interest at the rate aforesaid.
Section 5. And be it further enacted, That whenever hereafter any individual or individuals of said Cherokee Indians shall desire to remove and join the tribe west of the Mississippi, then the Secretary of War shall be authorized to withdraw from the fund set apart as aforesaid the sum of fifty-three dollars and thirty-three cents and the interest due and unpaid thereon, and apply the same, or such part thereof as shall be necessary, to the removal and subsistence of such individual or individuals, and pay the remainder, if any, or the whole, if the said Indians, or any of them, shall prefer to remove themselves, to such individuals or heads of families upon their removal west of the Mississippi: Provided, That the amount herein required to be funded for the benefit of the said Cherokees in North Carolina, and the amount required to be paid the, shall be charged to the general Cherokee fund, under the treaty of New Echota, and shall be reimbursed therefrom."

I am informed the opinion of the Second Comptroller was taken on the construction of this act. The Hon. A. K. Parris, then Second Comptroller, gave an opinion the
12th January, 1850. He was of opinion, the legal representatives of the person interested in this fund succeeded to his rights, and might claim the interest as long as the fund continued.
This opinion was adopted by the Secretary of the Treasury in
1851, and carried into effect in the instructions to Col. A. M. Mitchell, special agent for paying the North Carolina Cherokees.
A different construction received the sanction of the department, in the instructions of the
29th July, 1851, to James W. Terrell, special agent for paying these Indians.
My opinion is asked by Mr. Wm. [William] H. Thomas on the question of the right of the legal representatives of deceased Indians to the annual interest accruing on this fund.
It certainly becomes me to give the diffidence an opinion on a question on which there is a difference of opinion in such high officers. I have, therefore, examined the question involved with great care. I am very clear in the results to which my investigations have led, but I submit those results with due respect to those who differ from me.


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Premising that this is a question on which persons, for whose judgment I have the highest respect, have held different opinions, I proceed to submit the reasons for my opinion.
This law is certainly very peculiar in its structure. It requires certain duties to be performed by the heads of two high departments of the government for its execution, but these duties are to be performed separately, not jointly. The Secretary of War is required to ascertain certain Cherokee Indians who have not removed west of the Mississippi or received the commutation for removal and subsistence, and report them to the Secretary of the Treasury.
Whereupon the Secretary of the Treasury if required to set apart $ 53 33 for every individual so ascertained, and to pay the interest annually accruing on this sum according to the directions of this act.
But the Secretary of War and his corporate successor, the Secretary of the Interior, is authorized to withdraw from this fund all or part in certain contingencies provided in the act.
On the face of this act the Secretary of the Interior is to perform the first duty, viz., to furnish a list of persons described in the act.
The Secretary of the Treasury is to perform the second duty, viz., to set apart for each individual on this list $ 53 33, and pay to that individual, or his legal representative, each year, the interest on it.
Third, a contingency is provided for, in which the Secretary of the Interior may withdraw all or part of this fund.
Now, in construing this act I suggest, first, the Secretary of the Treasury and of the Interior are officers of the government in equal condition . Each stands, as to all his duties, on equal ground; and neither is subjected to the other. In executing the first and third branches of this act, the Secretary of War (or Interior) is to perform his duty under the act; and when that duty is performed it is final. It is not subject to the revision of the Secretary of the Treasury. With the construction of the original list to be furnished, the Secretary of the Treasury has nothing to do; with the reasons for withdrawing the fund under the third branch the Secretary of the Treasury has nothing to do. The Secretary of the Interior is in these respects to perform a duty under the law.
So when the list required by the first branch of the law is furnished, that list is a final act, ascertaining who ought to be on it. Then the Secretary of the Treasury has a duty to perform, viz., to set apart for each individual named on this list $ 53 33, and to pay him and his legal representatives interest at the rate of six per cent. on the sum set apart for him. This duty the Secretary of the Treasury is to perform independently of the Secretary


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of the Interior, looking only to the law for his authority and duty.
There is no ambiguity in the instruction of this law to the Secretary of the Treasury. He is --
1st, to set apart for each individual ascertained by this list, the sum of $ 53 33.
2d. He is to pay to every such individual, or his legal representative, interest at the rate of six per cent. per annum on the per capita set apart for him, from the
23d May, 1836, to the passage of that act.
3d. [3rd] "And to continue annually thereafter said payment of interest at the rate aforesaid."

Now I understand it never has been doubted --
1st, that the Secretary of the Treasury was to set apart $ 53 33 for each individual named in the list furnished him.
2d. That is was his duty to pay to every person on that list, if living, interest at the rate of six per cent. from the
23d May, 1836, to the passage of the law; and if the individual named be dead, then to pay the interest to his legal representative.

The doubt raised in the construction of this act is, whether the words "and (shall) continue thereafter said payment of interest at the rate aforesaid," make it the duty to pay to the legal representatives of deceased individuals.
With all respect to those who entertain this doubt, I must say I do not see any room for such a doubt in the words of the act.
The Secretary is directed to continue annually thereafter said payment of interest. The word said cannot be mistaken. It means the same that has been said above; and this is also implied from the word continue. The Secretary had been directed to pay interest to the individuals named who were living, and to the legal representatives of the named individuals who were dead. He is directed to continue said payment. Can there be a mistake in this direction? He is not directed to change the payments so as to exclude in after-payments any class to whom he has paid, but to continue the payments. This must mean that in his after payments, he is to pay the same classes of persons paid at first, viz., the individuals ascertained if alive; their legal representatives if dead.
The doubt thrown over this construction is raised, I presume, by deducing from the 5th section the inference that the sum of $ 53 33 was intended to be given as a fund to remove the Indians west of the Mississippi; and when one died, this object as to him could not be accomplished, and the fund fell back to the Treasury, and interest on it ceased.
I hope I have stated the objection fairly, for I wish to meet the real difficulty in the case. If I have understood the objection aright, I think it ought to be answered by a familiar rule of construction and administration of trust funds.


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That this is a trust, will not, I presume, be questioned; and I submit, that taking the two sections together, we have clearly two intentions manifested on the face of the law.
The first intention is to confer a personal benefit on the individual ascertained by the Secretary of War. This is manifested by setting apart for him his per capita, and directing legal interest to be paid him, and his legal representative after him.
The second intention is, to hold the principle sum, as a fund to be used for payment of the expenses of removal, &c. [et cetera] Congress may well have supposed the Indian might either choose or be compelled to remove. In this event, this fund was to be held to defray these expenses; but if the Indian dies without removing, then this secondary intention has wholly failed. Now, in the administration of trusts, when two intentions are manifested, one of which may be executed and the other fails, it never has been held the failure of the secondary one defeats the other.
In the case of Ingles vs. Sailors' Snug Harbor, 3 Peters' Reports, page 117, the Supreme Court said: "And he" (the Lord Chancellor) "adds another rule, which has become an established rule of construction: that if the court can see a general intention, consistent with the rules of law, but the testator has attempted to carry it into effect in a way that is not permitted, the court is to give effect to the general intent, though the particular mode should fail."
In Thelusson vs. Woodford, 4 Vesey, page 325, Judge Buller expressed the rule thus: "If one member of this sentence was void, I do not agree that it would make the whole void; for Lord Talbot says, in Hopkins vs. Hopkins, in these cases the method of the courts is not to set aside the intent, because it cannot take effect so fully as the testator desired, but to let it work as far as it can."
Ross vs. Borland, 1 Peters, was a case under the 2d section of the act of
1803, for the disposal of lands south of Tennessee. This section made a donation of lands to each person who inhabited and cultivated the land on the day of the year
1797, when this country was evacuated by the Spanish troops. The Spanish troops did not evacuate the land in
1797, but in
1798, and the donation claimant inhabited the land on the day of the evacuation. It was alleged he was not entitled to a donation, because the land was granted in express terms, if the evacuation occurred in
1797.
The court said, in page 667: "The law was intended to confer a bounty on a numerous class of individuals, and in construing the ambiguous words of the section, it is the duty of the court to adopt that construction which will best effect the liberal intentions of the legislature." The court then discussed the intention of the law, and acting under this rule, overruled the secondary intention of the law to give effect to the primary intention.


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Now I submit, these rules are applicable here. The general intention to confer a benefit on the class of individuals provided for, is the great object of the law. The intention to use the principal as an emigration fund, was a secondary and contingent object. It is not consistent with the rules for administration of trust funds to permit the failure of this secondary and contingent object. It is not consistent with the rules for administration of trust funds to permit the failure of this secondary and contingent object to defeat the primary and leading object of the law; and to permit the failure of this contingent and secondary object to defeat the primary object, we must do violence to the words of the law. The words "continue annually thereafter to make said payment of interest at the rate aforesaid" are the law of the fund, and if no violence be done them, they continue obligatory on the Secretary of the Treasury as long as the fund exists.
It is true the 5th section does provide that the Secretary of the Interior may withdraw this fund for the purposes of emigration. But this terminates the fund, and the duty of inquiring into and removing these people is confided to the Secretary of the Interior, not of the Treasury. The provision conferring this power on the Interior Department, certainly withdraws it from the Treasury, and goes far to show that in his administration of the fund the Secretary of the Treasury is not to be influenced by any considerations connected with removal.
Again I respectfully submit, the law expressly designates the payees of this annual interest. The words are, "every such individual or his legal representative." The only duty required of the Secretary is to pay the individual if he be living; if he be dead, his legal representative. The duty required measures the rights of the Secretary. Congress took the responsibility of directing the payment to the legal representative. By so doing it relieved the department of the cost, labor, and responsibility of hunting up the natural representatives. The time and labor required for this would be very great. By directing the payment to the legal representative this labor is saved, and the duty of applying this interest properly is devolved on the representative, under the law of North Carolina. The Government is discharged of all liability by this payment, and the administration of the fund is simplified.
I further submit, that it is manifest this law has not disposed of this fund in a contingency which it must have been forseen [foreseen] might happen, viz., that these Indians would not remove. It has given no authority to the officers of either the Treasury or Interior Department to dispose of that fund in that event.
I think it clear, Congress has reserved to itself the power to act in that contingency. If it had designed the departments or either of them to act in that contingency, it would have provided for them. Most of the questions raised have grown out of that contingency, and I think are properly reserved to Congress. The fund may be administered according to the direction of the law, [added text: 3 ]


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until Congress interposes to provide by a new law for this state of things. Indeed Congress has partially interposed. By the 3d [3rd] section of the act of
March, 1855, Congress has authorized the Secretary of the Interior to withdraw from this fund $ 42, 290 69, to be paid to the persons enrolled by John C. Mulloy, or to the legal representatives of such of them as have died since the enrolment. This law recognises [recognizes] the fund as one held in trust, and directs the payment to be made according to the terms of the fourth section of the act of
29th July, 1848.
This act seems to me to be a congressional interpretation of the questions raised in the department.
It holds this to be a fund held in trust for the Indians. Of course it defeats the construction which would forfeit any part of this fund, either principle or interest, to the United States, for failure to remove.
It recognises [recognizes] the legal representatives of those who have died since the enrolment, as payees.
It provides for payment of interest due, by deducting the payment to be made, according to the terms of the 4th section of the act of
1848.
It provides for the contingency of these Indians not removing; but until the Secretary of the Interior exercises the power given him, leaves the law of
1848 in full force, and the trust given the Secretary of the Treasury under that law to be executed.
I submit, then, that the legal representatives of Indians on the list furnished the Secretary of the Treasury by the Secretary of War are entitled to draw the interest on the per capita of their intestates as long as this fund is a trust under the administration of the Secretary of the Treasury.
A few suggestions on the effect of the instructions of the Treasury Department to Jas. [James] W. Terrell will close this opinion.
Those instructions contain a decision of the questions above considered, and the decision is adverse to the opinion of Judge Parris and the previous decision of the department contained in the instructions to A. M. Mitchell.
The general rule which regulates the action of a Secretary to his predecessors is, that a decision which is final is res adjudicata, and is not to be reviewed or reversed, except on such grounds as would give a new trial at law, viz., error in fact or discovery of new testimony.
Mr. Legare, in his opinion on Otis's case,
4 Aug., 42, Opinions, vol. 4, pages 79, 80, said: "Can the settlement made by your predecessor's authority be opened?"

"Clearly not, unless on the discovery of new evidence, or of manifest error in the account. If the former Comptroller is perfectly sure, or if the evidence is quite satisfactory to the present Comptroller to show that the settlement was made under the erroneous


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idea that no interest ought to be allowed, and that no allowance in the name, or compensation for interest, was in fact made, then there is no doubt, in my opinion, but the settlement may be opened, and the account stated on those principled notwithstanding the release."

Mr. Cushing, in his opinion of
21st June, 1856, Opinions, vol. 6, page 576, said: "Accounts have sometimes been opened on the application of a party for the correction of a manifest error of law to his prejudice," and refers to the above quoted opinion of Mr. Legare.
If the action of the Department in the instructions to Terrell be considered final, it falls within this exception. The act of Congress above quoted has shown the legal views on which the Department acted were erroneous. In Mr. Attorney General Johnson's opinion on Galt's case, Opinions, vol. 5, page 82, he said: "When Congress has by provision in after laws expressed an opinion in conflict with the Executive opinions, it is considered a legislative interpretation, and adopted by the officer."
Even then, if the action of the Department in the instructions to Terrell was in the nature of res adjudicata, these exceptions stated would authorize it to be opened. But I do not consider it res adjudicata . I think it was an opinion in the course of administering a trust fund of that class which did not finally dispose of the matter involved, and which, in the further administration, must come up for action.
In this class of administrative duties such cases occur, and the head of Department may properly review the action of his predecessor. Such a case was the claim of the coroner of the county of Washington to fees from the Treasury. His fees for inquests super visum corporis had been paid out of the Treasury by traditional practice for some years.
Mr. Mc Clelland submitted his right to Mr. Cushing, who examined the law, and concluded the payment was against law, and Mr. McClelland arrested the practice. The course of decision for several years was subjected to review and overruled. And this seems to me properly done. The power of one Secretary is equal to another -- not superior. From this it results that where one Secretary has acted on a subject and finally disposed of it, his action ought to close the case.
But where one Secretary has in the course of administrative duty set a precedent in course of action which is annually recurring, his precedent is to be respected; but if erroneous, is not conclusive. The succeeding Secretary has as much power over the administration of the law as his predecessor. The predecessor cannot, by erroneous construction, set a precedent which will compel his successor to administer wrongfully in recurring cases. Mr. Guthrie's course in the execution of the Sub-treasury law is an example.


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He disregarded the erroneous precedent of his predecessor, and administered that law according to his understanding of its true intention and purport.
The fund under consideration is a trust fund, to be administered annually by the Secretary, as trustee. If a preceding trustee has set an erroneous precedent, his successor is not bound to follow up that error against the convictions of his own judgment.

[Signed] S. S. BAXTER.

SEPTEMBER 7, 1859.