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RELIEF OF THE HEIRS OF THE EASTERN 
 CHEROKEE INDIANS 
 
 HEARINGS 
 
 BEFORE A 
 
 SUBCOMMITTEE OF THE 
 COMMITTEE ON INDIAN AFFAIRS 
 
 HOUSE OF REPKESENTATIVES 
 
 SIXTY-FOURTH CONGRESS 
 First Session 
 
 ON 
 
 H. R. 3680 
 
 WASHINGTON 
 
 GOVERNMENT PRINTING OFFICE 
 
 191S 
 
^9 
 
 D. of D. 
 MAY 10 1916 
 
RELIEF OF HEIRS OF THE EASTERN CHEROKEE INDIANS. 
 
 Subcommittee of the 
 Committee on Indian Affairs, 
 
 House of Representatives. 
 Present: Representatives Church (presiding), Tillman, and Demp- 
 sey. 
 
 Mr. Church. Now, you gentlemen wish to be heard on H. R. 3680, 
 I believe. I would say tliat unless you prefer to appear, a brief 
 probably would be just as helpful to the committee. Of course, if 
 you prefer to make a short statement in regard to it, we will be glad 
 to listen to you. But I believe a brief would answer all the purposes 
 probably better than a verbal statement. 
 
 STATEMENT OF MR. WILSON L. TOWNSEND, OF WASHING- 
 TON, D. C, REPRESENTING EASTERN CHEROKEE INDIANS. 
 
 Mr. Smith. I think in that case we would like to take advantage of 
 both opportunities, make a short statement of not over half an hour, 
 and then submit briefs in addition. 
 
 Mr. Church. Very well; that is satisfactory. 
 
 Mr. TowNSEND. This bill seeks to remedy an error in the distribu- 
 tion of a fund that was due the heirs of the Eastern Cherokee Indians. 
 It was appropriated by Congress for them and the Supreme Court 
 ordered it paid to them, but by an error in the mandate of the Supreme 
 Court, through an order of the Court of Claims changing that man- 
 date, the fund was distributed to other Eastern Cherokee Indians 
 largely, and these people only got a small share of what they were 
 entitled to. The facts leading up to that are as follows 
 
 ^Ir. Chltich. Now, excuse me there — the Indians that the fund 
 was authorized to be distributed to only received a part of it, and 
 some other Indians that had nothing to do with it, were not the 
 distributees of the fund, received part of it'^ 
 
 ^If. TowNSEND. Tlie mandate was changed. The order was that 
 the heirs of these Eastern or Emigrant Cherokees should be paid this 
 fund, and the Court of Claims changed the mandate somewhat, and 
 the fund was paid to the Eastern Cherokees per capita — the descend- 
 ants of these people — -and of course these heirs got some of it, as 
 coming in under the general class, but instead of being paid to them 
 directly and exclusively, it was distributed among them and these 
 others. 
 
 Mr. Church. In order to get this straight, who were the Eastern 
 Cherokees ? 
 
 Mr. TowNSEND. Tliey were Cherokees living east of the Mississippi 
 up to 1835, in Georgia, Alabama, North and South Carolhia, and 
 Tennessee, 16,000 of them. A good many of the Cherokees had 
 already gone west of the Mississippi River of their own accord, but 
 
4 RELIEF OF HEIRS OF THE EASTERN" CHEROKEE INDIANS. 
 
 in 1835 the Government made this treaty that has been mentioned 
 before, whereby these Indians were to give up their lands east of the 
 Mississippi and move west. The Government agreed to pay them 
 a certain amount of money, $5,000,000 I believe it w^as. Then they 
 moved in accordance with this treaty, but the money was not paid. 
 Then came the treaty of 1846, when all the rights of these Eastern 
 Cherokees were supposed to be settled up. In that treaty the Govern- 
 ment provided for the payment of this sum which had not been paid 
 in accordance with the treaty of 1835. If I may read article 9 of 
 that treaty — it covers our claim very largely. Article 9 provided: 
 
 The United States agree to make a fair and just settlement of all moneys due to the 
 Cherokees, and subject to the per capita diWsion under the treaty of 29th December, 
 1835, which said settlement shall exhibit all money properly expended under said 
 treaty and shall embrace all sums paid for improvements, ferries, spoliations, re- 
 moval, and subsistence, and commutation therefor, debts and claims upon the Chero- 
 kee Nation of Indians, for the additional quantity of land ceded to said nation; and 
 the several sums provided in the several articles of the treaty to be invested as the 
 general funds of the nation, and, also, all sums which may be hereafter properly 
 allowed and paid under the provisions of the treaty of 1835. The aggregate of which 
 several sums shall be deducted from the simi of $6,647,067, and the Isalance thus 
 found to be due shall be paid over per capita, in equal amounts, to all those indi\aduals, 
 heads of families, or their legal representatives, entitled to receive the same under 
 the treaty of 1835, and the supplement of 1836, being all those Cherokees residing 
 east at the date of said treaty and the supplement thereto. 
 
 This treaty affirmed the prior treaty and assured to the Cherokees 
 who moved west their money due them under the treaty of 1835. 
 The money was distributed in 1852 on rolls that had been made up 
 in 1851; but in paying this money the Government kept back a part 
 of it as the cost of removal of these Eastern Cherokees to their new 
 lands west of the Mississippi. Ever since 1852 these Cherokees have 
 been petitioning Congress, and complaining that this was an unjust 
 charge, and that the cost of removal was to have been paid by the 
 United States. 
 
 Mr. Church, How much was the cost of removal? 
 
 Mr. TowNSEND. It was later found by the accountants to be about 
 $1,111,284. 
 
 Mr. Church. That is the amount you are asking for? 
 
 Mr. TowNSEND. That is the foundation of the case. It was acted 
 upon, passed through the courts, and ordered paid with interest. It 
 was distributed, but was distributed to the wrong parties; that is our 
 claim in large part; and these people here are claiming their right 
 share of that sum, which was paid to others instead of being paid to 
 them. 
 
 Mr. Church. How many were paid ? 
 
 Mr. TowNSEND. It was to all the eastern Cherokees by blood per 
 capita; the main fact comes out in the order of the court. Our con- 
 tention concerns the method of distribution, not the main claim, which 
 has been allow^ed all the way through. But the facts that we will 
 bring out show that our claim arose out of the method of distribution. 
 Tlie claim has its foundation in the decisions of the Court of Claims; 
 so that if I can submit those later on I think that point will be made 
 clear. 
 
 In 1893, by the act of March 3, Congress referred this matter to the 
 Secretary of the Interior with instructions to employ accountants and 
 strike an account between the United States and the Cherokees. 
 Slade and Bender were appointed by the Secretary and made an 
 
RELIEF OF HEIRS OF THE EASTERN CHEROKEE INDIANS. 5 
 
 nccouiiting in which thoy stated that this sum was due the Cherokee 
 Indians and was a charge against the United States and not against 
 this fund— the sum of $1,111,000. This was referred in 1902 to the 
 Court of Claims. The Court of Claims passed on it and also found the 
 sum to he due the Cherokees. 
 
 AYith )"egard to the distribution of this item the Court of Claims 
 stated in its opinion, after proviiUng for the payment of expenses of 
 ascertaining title to this money, and attorneys' fees, etc., as follows: 
 
 The remainder to be distributed directly to the eastern and western Cherokees, who 
 were parlies either to the treaty of New Echota. as proclaimed May 23, 1836, or the 
 treaty of AVashington of August 6, 1846, as indi\'iduals. wheiher east or west of the 
 Mississippi River, or to the legal representatives of such indixiduals. 
 
 That is the vital part of this decree. This was appealed to the 
 Supreme Court and affirmed, and the Supreme Court made a modifi- 
 cation of the mandate so that the old settlers already west of the Mis- 
 sissippi would be excluded from participation. As ameiidod the 
 Su|)reme Court sent it back, and the Court of Claims modified its 
 decree in accordance with the decree of the Supreme Court. The 
 Court of Claims then referred the matter to the Secretary of the 
 Interior and told him to appoint a commissioner to make up the roll 
 of those entitled to share in the distribution, and to make the dis- 
 tribution on the basis of the roll of 1851, which is the one upon which 
 the main part of this fund was paid when it was due, in accordance 
 with ^Vrtide IX of the treaty of 1846, which I read before. 
 
 Mr. Guion Miller was appointed the agent of the department for this 
 purpose. His procedure was as follows — this is his report to the 
 Court of Claims, February 4, 1910: 
 
 Immediately upon my appointment as special agent of the Office of Indian Affairs 
 I ])rcinxred a notice in the name of the comndssioner wMch bore date of August 20, 
 I'JUU, to all eastern Cherokees lo file their applications for participation in the fund 
 with the Commissioner of Indian Affairs by January 31, 1907. This advertisement 
 set forth that the rolls of 1851, upon which the per capita payment to the eastern 
 Cherokees was made would be accepted as a basis and the fund would be distributed 
 to the individuals named in said rolls of 1851 or to their legal representatives. 
 
 Mr. Miller, afterwards, in 1907, reported that the distribution which 
 he had contemplated — a per stirpes distribution — under the order of 
 the court was impracticable. The Secretary of the Interior sent that 
 report to the Court of Claims, and the Court of Claims had a hearing 
 on the proposition and then vacated its previous order and entered the 
 following order: 
 
 It further appearing to the court that the lands disposed of by the eastern Chero- 
 kees under the treaties of 1835-36 and 1846 were owned by them as a community 
 and the rights arising under said treaties, as established by the decree of May 29, 
 1906, accrued to the said eastern Cherokees as communal owners of said land; and 
 it further appearing from tlie report of Special Agent Giuon Miller, accompan\dng 
 the reference of the Secretary of the Interior of February 20, 1907, above referred 
 to, that a per stirpes distribution to the eastern Cherokees who were parties to the 
 treaties of 1835-36 and 1846 is impracticable; it is therefore further ordered tliat the 
 commissioner hereinafter named sliall enroll, as entitled to share in the fund aris- 
 ing from said decree of May 28, 1906, all such Individual eastern Cherokee Indians, 
 by blood, living on May 28, 1906, as shall establish the fact that they were members 
 of the eastern Cherokee Tribe of Indians at the date of the treaty of 1835-36 and 1846 
 or are descendants of such persons. 
 
 The committee will see the change there in the order. The prior 
 order of the Court of Claims, which I have read, was that the remain- 
 der should be distributed to the parties — individuals, whether east 
 or west of the Mississippi River, or to their legal representatives. 
 
b RELIEF OF HEIRS OF THE EASTERN CHEROKEE INDIANS. 
 
 Mr. Miller was then reappointed agent of the Court of Claims, in 
 compliance with the second order of the com"t, and made up a roll 
 of the Cherokee Indians by blood hving in the Cherokee country, 
 eastern and emigrant Cherokees and parties to those treaties of 
 1835 and 1836, or the descendants of them. This roll of his was 
 returned to the Court of Claims on February 4, 1910. On March 7, 
 1910, the court approved this roll, and distribution was commenced. 
 
 On October 17, 1910, a petition was filed on behalf of the eastern 
 Cherokee Indians in the Supreme Court of the United States for a 
 writ of mandamus to compel the Court of Claims to distribute this 
 fund in accordance with the original order of the Supreme Court of 
 the United States. 
 
 The Supreme Court heard aro;uments on this petition and dis- 
 missed it on the sole ground of laches. They did not take up the 
 merits of the case at all, but said the petitioners had slept on their 
 rights, and dismissed the petition. A bill was subsequently intro- 
 duced in Congress for their relief about two jears ago. It was not 
 acted upon, and this bill was subsequently remtroduced. 
 
 Mr. Smith is going to take up the legal phases of the argument. I 
 was going to state the facts, and I hope I have made them clear. 
 
 I wish to file the following brief: 
 
 Brief Submitted as Part of Record in Eastern Cherokee Indian Case. 
 
 statement of facts. 
 
 This bill seeks to correct an error in the distribution of a fund due the heirs of the 
 eastern or emifirant Cherokees, appropriated by Congi'ess, and directed by the Supreme 
 Court of the United States to be paid to them, which was in large part diverted from 
 them and paid to the descendants of eastern Cherokees per capita through an order of the 
 Court of Claims changing the original mandate of the Supreme Court. 
 
 The facts are these: 
 
 Prior to 1835 there were some 16,000 Cherokees lining east of the ilississippi whose 
 lands were desired for settlement. In 1835 a treaty was entered into between these 
 Cherokees, called eastern C herokees to distinguish them from others who had already 
 moA-ed west, and the United States (vol. 7, Stat. L., 488), whereby, ih consideration 
 of the removal of these Cherokees to lands provided for them west of the Mississippi, 
 the United States agreed to pay them §5,000,000. Part of this sum was to be charged 
 off in various ways and the balance distributed equally among all of the people of 
 the Cherokee Nation east. 
 
 The Cherokees duly removed west, but the pajTnent agreed upon was not made, 
 and in 1846 a new treaty was made (9 Stat. L., 871) to settle up the matter, which 
 provided as follows, in Article IX: 
 
 "Art. IX. The United States agree to make a fair and just settlement of all moneys 
 due to the Cherokees, and subject to the per capita division under the treaty of 29th 
 December, 1835, which said settlement shall exhibit all money properly expentled 
 under said treaty and shall embrace all svuns paid for improvements, ferries, spolia- 
 tions, removal, and subsistence, and commutation therefor, debts and claims upon 
 the Cherokee Nation of Indians, for the additional quantity of land ceded to said 
 nation; and the several sums provided in the several articles of the treaty to be 
 invested as the general funds of the nation, and also all sums which may be hereafter 
 properly allowed and paid under the provisions of the treaty of 1835. The aggregate 
 of which said several sums shall be deducted from the sum of $6,647,067, and the 
 balance thus found to be due shall be paid over per capita, in equal amounts, to all 
 those individuals, heads nf families, or their Icf/al representatives entitled to receive the 
 same under the treaty of 1835 and the supplement of 1836, being all those Cherokees 
 residing east at the date of said treaty and the supplement thereto." [Italic ours.] 
 
 Distribution under this treaty was made in 1852, on rolls prepared the prcAdous year 
 with the exception of a sum charged off as removal expenses, being the cost of the 
 emigration from the lands east of the Mississippi to Oklahoma. That sum is the one 
 now under consideration. 
 
EELIEF OF HEIES OF THE EASTERN CHEROKEE INDIANS. 7 
 
 Ever since 1852 these Eastern Cherokees have claimed that the charge for removal 
 was an improper one, as the United States was pledged to bear this expense. Congress 
 was petitioned constantly, and finally, under the act of March 3, 1893, the controversy 
 was referred to the Secretary of the Interior with instructions to employ accountants 
 to make an account of moneys due the Cherokees. Messrs. Slade and Bender were 
 thereupon appointed by the Secretary, and after nearly two years of work they sub- 
 mitted their report, which was transmitted to Congress January 7, 1895. (H. Ex. Doc. 
 No. 182, 53d Cong., 3d sess.) This report found that there was due the Eastern 
 Cherokees, among other items, the sum of $1,111,284.70, being the expense of removal 
 improperly charged to the treaty fund. Nothing further was done in this matter 
 until the act of July 1, 1902, by which the Court of Claims was given jurisdiction to 
 hear and determine the claims of the parties claiming this fund. 
 
 After extended arguments and hearings, on May 18, 1905, the Court of Claims 
 decided in favor of the claimants to this fund, and stated in its decree, with regard to 
 the item of $1,111,284.70 for removal expenses, as follows: 
 
 ******* 
 
 "Second. The remainder to be distributed directly to the Eastern and Western 
 Cherokees who were parties either to the treaty of New Echota, as proclaimed May 
 23, 1836, or the treaty of Washington of August 6, 1846, as individuals, whether east 
 or west of the Mississippi River, or to the legal representatives of such individuals." 
 ******* 
 
 (See opinion Court of Claims in 40 Ct. Cls., 252.) 
 
 On appeal to the Supreme Court of the United States this decree was affirmed 
 April 30, 1906 (202 U. S.. 101). with a modification which would more clearly exclude 
 the Old Settlers, or Cherokees already residing west of the Mississippi at the time of 
 the emigration of those east, from participation in this fund. In directing this modi- 
 fication the Sxipreme Court said: 
 
 "We concur with the Court of Claims in the wisdom of rendering judgment in favor 
 of the Cherokee Nation, subject to the limitation that the amount thereof should be 
 paid to the Secretary of the Interior, to be distributed directly to the parties entitled 
 to it, but we think that the terms of the second subdivision of the fourth paragraph 
 of the decree, in directing that the distribution be made to the 'Eastern and Western 
 Cherokees,' are perhaps liable to misconstruction, although limited to those 'who 
 were parties either to the treaty of New Echota, as proclaimed May 23, 1836, or the 
 treaty of Washington of August 6, 1846, as individuals, whether east or west of the 
 Mississippi River.' This should be modified so as to direct the distribution to be 
 made to the Eastern Cherokees as individuals, whether east or west of the Mississippi, 
 parties to the treaties of 1835-36 and 1846, and exclusive of the Old Settlers." 
 
 The Court of Claims immediately thereafter modified its decree in accordance with 
 this decision, and (m May 28, 1906, entered an order directing the Secretary of the 
 Interior to prepare a roll of persons coming within the description entitled to share in 
 this fund, taking as a l)asis the rolls of 1851 (u])on which the original distribution to 
 the Eastern Clun-okees of the main part of the money due them was made), and direct- 
 ing him to make such distribution in pursuance of Article IX of the treaty of 1846, 
 before referred to. 
 
 The Secretary of the Interior appointed Guion Miller as special agent or commis- 
 sioner to prei^are the rolls, and his method of procedure is set out in his re])ort to the 
 Court of Claims of February 4, 1910, and is as follows: 
 
 "Immediately upon my appointment as special agent of the Office of Indian Affairs 
 I prepared a notice in the name of the commissioner, which bore date of August 20, 
 1900, to all Eastern Cherokees to file their applications for ])artici])atioii in the fund 
 with the Commissioner of Indian Affairs by January 31. 1907. This advertisement 
 set forth that tlie rolls of 1851, upon whicli the per capita payment to the Eastern 
 Cherokees was made, would be accepted as a basis and the fund would be distributed 
 to the individuals named in said rolls of 1851 or to their legal representatives." 
 
 Early in 1907 Guion Miller reported to tho Interior Department that a per stirpes 
 distribution, which he had contemplated, was imjjracticable. This report was trans- 
 mitted by the Secretary to tlie Court of Claims on February 20, 1907. 
 
 Thereafter, on the 28th of April, 1907, the Court of Claims, after holding a hearing 
 on the question, vacated its previous order in the following terms: 
 
 ******* 
 
 "It further appearing to the court that the lands disposed of by the Eastern Cher- 
 okees under the treaties of 1835-36 and 1846 ware owned by them as a community, 
 and the rights arising under said treaties, as established by the decree of May 28, 1906, 
 accrued to the said Eastern Cherokees as communal owners of said lands: and it fur- 
 ther appearing from the report of Special Agent Guion Miller, accompanying the 
 
8 RELIEF OF HEIRS OF THE EASTERN CHEROKEE INDIANS. 
 
 reference of the Secretary of the Interior of February 20, 1907, above referred to, that 
 a per stirpes distribution to tlie Eastern Cherokees who were parties to the treaties of 
 1835-36 and 1846 is impracticable; it is tlierefore further ordered that the commis- 
 sioner hereinafter named shall enroll, as entitled to share in the fund arising from said 
 decree of May 28, 1906, all such individual Eastern Cherokee Indians, by blood, 
 Living on May 28, 1906, as shall estabhsh the fact that they were members of the East- 
 ern Cherokee Tribe of Indians at the date of the treaty of 1835-36 and 1846 or are 
 descendants of such persons, * * *." 
 
 Guion Miller was then reappointed agent of the Court of Claims, and he proceeded 
 to the Cherokee country and there made up a roll of all Cherokees coming under the 
 order of the court. 
 
 On February 4, 1910, Miller reported to the Court of Claims that the roll was com- 
 plete, and on March 7, 1910. the court approved tliis roll and the fund was distributed 
 per capita to those whose names ai)peared thereon. 
 
 On October 17, 1910, a petition for a writ of mandamus was filed in the Supreme 
 Court on behalf of the Cherokees, who claimed that the original decree called for a 
 per stirpes distribution of this fund, asking that the Court of Claims be commanded 
 to obey the mandate of the Supreme Court. Briefs were filed, and after hearing argu- 
 ments the Supreme Court dismissed the petition on the sole ground of laches. The 
 Eastern Cherokees now appeal to Congress for relief. 
 
 A bill was introduced in the last Congress, but no action taken thereon. 
 
 Mr. Church. We wall now hear Mr. Smith. 
 
 STATEMENT OF ME. FRANK S. SMITH, OF WASHINGTON, 
 D. C, REPRESENTING EASTERN CHEROKEE INDIANS. 
 
 !Mr. Smith. First of all, gentlemen, we want you to understand 
 exactly what it is we are asking. If you do not understand it fully, 
 I wish you would cross-examine me until you do. 
 
 What we are asking is a per stirpes distribution. We are not 
 asking a per capita distribution as of this time, but a per stirpes dis- 
 tribution, wliich is a per capita distribution as of 1835; that is, that 
 it be given to the heirs of each one of those individuals who was 
 entitled to share in the distribution at that time. Therefore we call 
 that, and in our brief it is referred to as a per stirpes distribution. 
 
 The first proposition that we want to make is that there can be no 
 question — and I believe no Member of Congress will question the 
 fact — that there was a real indebtedness from the United States to 
 the Eastern Cherokees in the year 1906. That indebtedness, of 
 course, is proven by (1) the Slade and Bender accounting, which 
 showed the indebtedness to be exactly as we claim; (2) the decrees 
 of the courts — first, the decree of the Court of Claims, then the 
 Supreme Court decree, the mandate of the Supreme Court on appeal 
 from the Court of Claims, and then the final decree of the Court of 
 Claims under the mandate of the Supreme Court — and the final dis- 
 tribution. These all show that there was a sum in existence — a debt 
 in existence. The only payment for that debt was this per capita 
 distribution, a distribution equally among all the descendants of 
 these Eastern Cherokees; whereas it should have been to these indi- 
 vidual members of the Eastern Cherokees entitled to share in the 
 distribution under the treaties of 1835, 1836, and 1846, as parties 
 thereto, the heirs of each deceased party entitled to take liis share as 
 they would take other property belonging to him. 
 
 Now, no further attempt will be made to show the existence and 
 amount of the claim, and the onl}^ question is, should this payment 
 have been made per stirpes or per capita ? In other words, was the 
 payment made a real satisfaction of the obligation ? 
 
RELIEF OF HEIRS OF THE EASTERN CHEROKEE INDIANS. 9 
 
 In that regard it is necessary to first consider a couple of prelim- 
 inary points that come u]) in the interpretation of these different 
 treaties and decisions. 
 
 Some of these ma}^ seem self-evident to you, and the only reason 
 we advance them is the fact that in prior briefs these same points 
 have been advanced by the opponents to our theory. The first 
 point is the use of the words "per capita" in the original treaty. 
 That clearly does not mean per cai)ita as of to-day. Of course, <hs- 
 tri])ution was to be per capita as of that date: that is the fact upon 
 which we base our claim. The words "per capita" in that treaty 
 were used to distinguish this fund from the communal proj^erty. 
 ''Per capita" as of to-day means an entirely different thing from 
 "per ca|)ita" of that date, clearly, and what we claim as a per stirpes 
 distribution is a per capita distribution as of that date— not as of 
 to-day, but as of that date. A per capita distribution as of that 
 date is directed in the original treaties of 1835 and 1836 and in the 
 treaty of 1846. We make these points now because this probably 
 will be l)rought to the attention of the members of the committee 
 by those o])posing tliis bill, and wo wish to discount them at the 
 start, if possible. The words in the treaty of 1835 upon which the 
 whole claim is based, "to be ilivided equally," mean divided cfnially 
 at that time, not to-day. That again is the basis of our claim and 
 can not be twisted to direct an equal division to all descendants in 
 1910 or to-day. 
 
 In the opinion of the Supreme Court in the Old Settlers case the 
 fund is referred to as the "per capita" fund, to distinguish it from 
 funds or lands in which there was a community interest. That what 
 we call a per stripes distribution was directed by the court in that 
 case is shown by the fact that the actual distribution in that case 
 was per stirpes; that is exactly what we are asking here, a distribu- 
 tion ])er ca])ita as of the original date. 
 
 The words "legal representatives" appear in the treaty of 1846, 
 and it seems to us that no words could have a clearer meaning. I 
 do not mean a clearer meaning as to whether they mean heirs or 
 administrators or next of kin. That is a disputed question, but that 
 they mean one of those two I think is obvious. We do not care 
 which one you take, but those words should be interpreted to mean 
 either heirs or next of kin. So far as we can hnd there has never been 
 any holding that th(>se words "legal representatives" mean other 
 than heirs or next of kin. Further, the context shows conclusively 
 that that is the meaning, ])ecause otherwise only the survivors of 
 the original treaties would take. In the treaty of 1846 it says: 
 "To the Eastern Cherokees, parties to the treaty of 1835, and their 
 legal representatives." If "legal representatives" does not mean 
 heirs or administrators, then only the survivors take, as there is 
 no provision to cover descendants other than the words "legal 
 representatives." Now that clearly was not the meaning, and I 
 do not sup])ose anybody ever advanced that as the meaning of the 
 treaty. 
 
 Another disputed (juestion is the ([uestion of whether or not the 
 mandate of the Supreme Court of the L nited States of April 2!), 1906 — 
 that is, the mandate when the case was before tiie Supreme Court the 
 hrst time on the appeal from the original tlecision of the Court of 
 Claims, not the mandamus case — did or di<l not afhrm a per stirpes 
 
10 RELIKF OF HEIRS OF THE EASTERN CHEROKEE INDIANS, 
 
 distribution. That question comes up in this way: The original 
 decree of the Court of Claims admittedly directed a per stirpes dis- 
 tribution, using the language quoted in the opinion below immedi- 
 ately followed by the words "or to the legal representatives of such 
 indi\Tduals." This decree of the Court of Claims was amended, and 
 the question is whether or not the words "or the legal representatives 
 of such in(Uviduals" were amended or left untouched. 
 
 The purpose of the amendment is shown clearly in the language of 
 the ()j)inion of the Supreme Court: 
 
 "We concur witli the Court of Claims in the wasdom of rendering 
 judgment in favor of the Cherokee Nation, subject to the limitation 
 that the amount thereof should be paid to the Secretary of the Inte- 
 rior, to be distributed directly to the parties entitled to it, but we 
 think that the terms of the second subdivision of the fourth paragraph 
 of the decree, in directing that the distribution be made to ' the East- 
 ern and Western Cherokees,' are perhaps liable to misconstruction, 
 although limited to those 'who were parties either to the treaty of 
 New Echota, as proclaimed May 23, 1836, or the treaty of Wash- 
 ington of August 6, 1846, as individuals, whether east or west of the 
 Mississippi River.' Tiiis should be modified so as to direct the dis- 
 tribution to be made to the Eastern Cherokees as individuals, whether 
 east or west of the Mississippi, parties to the treaties of 1835-36 and 
 1846 and exclusive of the Old Settlers." 
 
 We claim that that modification simply applies to the words 
 quoted in this opinion. They do not modify any other words, and 
 therefore they do not touch the words "legal representatives," 
 which come very close to the words quoted there — in fact, in the 
 same sentence, but yet are not quoted here as to be amended. 
 Further, the opinion makes not the slightest mention of any change 
 from per stirpes to per capita distribution. Therefore the words 
 "or to the legal representatives of such individuals " were to be in 
 the amended mandate just as truly as they were in the original 
 mandate. They amended the mandate of the Court of Claims, but 
 the language they used in the opinion shows clearly what they 
 amended. They amended certain quoted words. They quote these 
 words and say: "This should be modified." That means clearly 
 the words quoted. The per stirpes distribution was affirmed. 
 
 Now, if these three preliminary points are accepted, then we find 
 our case is as follows: 
 
 The original treaty called for a per stirpes distribution. It was 
 to be divided equally among the Cherokee Indians east of the Misssis- 
 sippi. That calls for a per stirpes distribution of personal property 
 to each individual. 
 
 Second, the treaty of 1846 called for exactly the same thing, to 
 these parties or their legal representatives; to the Eastern Cherokees, 
 parties to the treaty of 1835, or th(nr legal representatives. 
 
 Later on, the actual distril)Ution to the Old Settlers, under an 
 exactly parallel claim, under the same treaty, 1846, was made per 
 stirpes. The first decision of the Court of Claims called for a per 
 stirpes distribution clearly. The mandate of the Supreme Court of 
 the United States, on appeal from the Court of Claims, as I have just 
 set forth, called for a per stirpes di-itribution, using the words "per 
 capita" in the sense I have used them all a^.ong, per capita as of 1835. 
 
 The first nmndate of the Court of Clai us anil the mandate of the 
 Supreme Court called for a ))er stirpes distribution, and then only 
 
EELIEF OF HEIRS OF THE EASTERN CHEROKEE INDJANS. 11 
 
 did this other question come -in; then only was any attempt made to 
 make a per capita distnl)ution, and on the report of Guion Miller the 
 Court oi Claims on its own initiative entered an order (hreetin^ a })er 
 capita payment. It had gone through all those stages. This case 
 has heen through the courts; it has had a varied career in the courts 
 and Congress, and at no stage have the merits of this case been passed 
 on contra to these claimants. They lost out in the Court of Claims 
 on one ground only, im])ra('ticability. The court does attempt in a 
 most weak-kneed way to bolster up its per capita distribution by 
 another theory. It does not put it on that ground; it does not go 
 that far, V)Ut simply states another point. I think perhaps nothing 
 could show more clearly the rights, the merits of these claimants, the 
 merits of their claim, than the attempt which the Court of Claims 
 makes to justify per capita distribution. They look around for the 
 best arguments they can find, and this is aU that they find. 
 
 Mr. Church. Would it be didicult to locate the legal representa- 
 tives of these people ? 
 
 Mr. Smith. Of course, that is the only argument, absolutely, against 
 our claim. There can be none other advanced, and if there is any 
 other argument in the minds of you gentlemen it is because we have 
 not presented the case clearly. 
 
 Mr. Church. Can those representatives be located ? 
 
 Mr. Smith. Yes, sir. 
 
 Mr. Church. Perhaps that is the reason they took this view of it. 
 
 Mr. Smith. Yes, sir; that is the only reason. They really admit — 
 and we want to get this point clearly in the minds of the committee — 
 that other than impracticability there can be no objection. It has 
 been passed on again and again that on the merits it should go to 
 these parties as heirs, not per capita to the descendants of the Eastern 
 Cherokee Indians; and the impracticability of doing that was the 
 only real argument ever advanced against it. As I say, the Court of 
 Clauns did put m another small argument on the side, but all through 
 before that they had gone on the other theory, a per stirpes distribu- 
 tion, without advancing any such argument. 
 
 On the (juestion of practicability perhaps nothing could be stronger, 
 certainly nothing could be stronger, than the fact that a per stirpes 
 distribution exactly as we ask was successfully executed in the case 
 of the Old Settlers. That was done in 1896. Arguments might be 
 advaiu-cd by us on the question of practicability and im])racticability 
 indefinitely, but they could not have the effect of that one statement, 
 it has been done in a case which was in every practical way identical 
 with this. It is more work, there is no question about that. It is a 
 hard job, a much more difficult task than to divide it per capita. 
 But, gentlemen, Mr. Miller himself when he decided their rights to 
 share in the per capita payment had to pass on the question of 
 whether or not each one of these individual claimants was a descend- 
 ant of a party to this treaty — that is, really an Eastern Cherokee by 
 blood. When he passed on that question — as he did ])ass on it — he 
 could have ruled on the (|Uestion of just how many of those Eastern 
 Cherokees he was descended from. And if he had passed on that 
 ({uestion of just how many the claimant was desc(>nded from, com- 
 plete data for the per stirpes distribution would have been before 
 liim. It would not have been a simple matter; it would have been 
 
12 RELIEF OF HEIRS OF THE EASTERN CHEROKEE INDIANS. 
 
 somewhat complicated, of coui*se, but it could have been done. The 
 data was almost all there before him, and it could have been worked 
 out from those facts — that is, not quite from the facts he decided, but 
 from the one further fact. He decided whether or not he was de- 
 scended from an}^ Eastern Cherokee, and in order to make a per 
 stirpes distribution he would have had to go further and decide just 
 exactly how many Eastern Cherokees he was descended from. 
 
 But here is another point. Is not this answer absolutley applica- 
 ble to this question ? Even admitting that it would be impracticable, 
 had the Government any right to use this rule of convenience in this 
 case; to say that merely because many of these claimants could not 
 prove their claims, that those who could prove their claims should 
 not recover according to their rights ? 
 
 Now, it undoubtedly will be the case, if this bill is passed by Con- 
 gress, that a great many can not prove the amount they are entitled 
 to. That is all well enough. They have already received payment 
 under the per capita distribution of more than they were entitled to, 
 because they were not and are not entitled to anything. But those 
 who are prepared and ready- to prove their claims should be given an 
 opportunity. We have in our office over 1 ,000 applications wliich 
 we believe set forth facts sufficient as a basis for a per stirpes distri- 
 bution in those cases. Now, if there are only 1,000 who can prove 
 their claims, that is basis enough for the interference of Congress in 
 this matter. 
 
 Finally, gentlemen — I will not take your time any further except 
 to say this: If there was only one fact in this case upon whcli to 
 base our whole claim, and that fact was tliis original treaty providing 
 that the money should be divided equally among these Eastern 
 Cherokees, we could come before you and ask this same relief. But 
 there is nothing of that kind. Instead of that, court after court has 
 passed on the proposition and decided on the whole case that we are 
 entitled to a distribution per stirpes, and finahy the Court of Claims, 
 contra to the mandate of the Supreme Court of the United States, 
 made a distribution — not on a legal ground — per capita instead of per 
 stirpes, not on a legal ground but simply on the ground of practica- 
 bility, in face of the fact that not many years before there had been 
 such a distribution in practically a similar case. 
 
 Mr. Church. How much did each one get under the per capita dis- 
 tribution ? 
 
 Mr. Smith. There were 30,000 of them practically — a little over 
 30,000, and the sum was $4,000,000. 
 
 Mr. Tillman. Instead of distributing this money, then, to the 
 heirs of the Eastern Cherokees, the}^ distributed it to all the Cherokees 
 per capita instead of per stirpes ? 
 
 Mr. Smith. Not all the Cherokees, only the Eastern Cherokees. 
 
 Mr. Tillman. I understand, but these people you are representing 
 received some of this money, but your contention is it should have 
 been distributed per stirpes; that is to say, the heirs of the Eastern 
 Cherokees should have received it instead of the whole number of 
 Cherokees receiving it per capita, which of course would limit the 
 amount paid — leave a smaller amount than they would have received 
 by a per stirpes distribution. I wish 3"ou would develop that fact, 
 
 Mr. Smith. I wiU not say anything more except on that question of 
 exactlv what our claim is. 
 
RELIEF OF HEIRS OF THE EASTERN CHEROKEE INDIANS. 13 
 
 Mr. Dempsey. I would just like to ask one or two questions. As I 
 understand it the situation is this: If these recitals in this l)ill are 
 correct here is a c^uestion, 1 can not understand one thing, if you 
 claim that the decision of the Court of Claims was wrong, why did 
 you not appeal from it ? 
 
 Mr. Smith. Well, as my colleagu(^ mentioned that fact I thd not 
 put any stress on it at all. There was a mandamus proceeding 
 brought to order the Court of (^laims to enter their mandate, or make 
 their distribution in accordance with the i>rior decision, the prior 
 mandate of the Supreme Court of the United States, and that was 
 dismissed on the one grountl of laches. 
 
 Mr. Dempsey. In other words, you did not do it within such time 
 as the court held you should have done it if you wanted to proceed ? 
 
 Mr. Smith. Well, even on that 
 
 Mr. Dempsey (interposing). That was what the court acted on? 
 
 Mr. Smith. Yes: that was the theory of the court. 
 
 Mr. Dempsey. Instead of taking the ordinary appeal you pro- 
 ceeded by mandamus, and proceeded, as the court said, too late? 
 
 Mr. Smith. Yes. 
 
 Mr. Dempsey. How long ago was that decision rendered ? 
 
 Mr. Smith. In 1912. This bill was introduced shortly after the 
 decision, and it died a natural death at the end of the last Congress. 
 
 Mr. Dempsey. Judge, can you see any escape from the fact that — 
 isn't this an appeal from the decision of the court? 
 
 Mr. Tn.LMAX. It is somewhat in that category, I guess. 
 
 Mr. Dempsey. It is legislating to override the decision of the 
 court. 
 
 Mr. Tillman. Going into another forum to establish their con- 
 tention. 
 
 Mr. Smith. Now, if I might add this one word on the point you 
 mentioned, there is one answer to the decision of the Supreme Court. 
 There is one line of decisions that was not brought to their atten- 
 tion, which they did not consider and did not mention. That is the 
 line which you gentlemen are all familiar with, the line that laches 
 can not be imputed to a tribal Indian. Now, on that question, as 
 you know, there have been plent}' of decisions. We have cited 
 decisions, in our brief, and we argue that question. That is one of 
 the points presented. 
 
 Mr. Dempsey. Can we presume, as a committee of the House of 
 Representatives, that the Supreme Court has overlooked a controlling 
 decision ? That would l)e the only grountl upon which we could say 
 that this was not an appeal from "the decision of the Supreme Court, 
 that the Supreme Court had overlooked a certain line of decisions. 
 
 Mr. Smith. Yes, sir. 
 
 Mr, Dempsey. That they made it through inadvertence. 
 
 Mr. Smith. I think that is pretty evident when you read their 
 decision. They certainly woidd have considered that line of decisions 
 at least of importance enough to justify mentioning it in the opinion, 
 if it had been considered at all. 
 
 Mr. Tillman. When did you say distribution was made ? 
 
 Mr. Smith. Actual distribution ? 
 
 Mr. Tillman. Yes. 
 
 Mr. Smith. It ended about 1910. 
 
 Mr. Tillman. When did it begin ? 
 
14 EELIEF OF HEIES OF THE EASTERN CHEROKEE INDIANS. 
 
 Mr. TowNSEND. It started some time after March 7, 1910. The 
 Guion Miller roll was finally approved March 7, 1910. 
 
 Mr. Smith. It was made during 1910, because the distribution had 
 been made to all but 300 when the mandamus proceedings were 
 brought. 
 
 On these grounds, gentlemen, we ask your rehef. 
 
 I wish to submit the following brief : 
 
 ARGUMENT. 
 
 First as a preliminary proposition the Eastern Cherokee Indians were entitled in 
 1906 to the sum of §1,111,284.70 with interest from June 12, 1838. This is shown by 
 the Shide-Bender account, by the Court of < 1aims decision, the Supreme Court decision 
 on appeal, and the actual payment after the appropriation by Congress. No further 
 attempt will be made herein to show the existence or amount of this indebtedness. 
 Further, tliis indebtedness has not been satisfied by other means than the per capita 
 distribution to the Eastern Cherokee Indians parties to the treaties of 1835-36 and 1846. 
 This was not payment and full satisfaction unless the per capita distribution was cor- 
 rect, which is the real question in issue here. 
 
 This sum should have been paid to the individual Eastern Cherokee Indians, par- 
 ties to these treaties, the heirs of each dead party taking his share. 
 
 In considering tliis point there are three preliminary questions of interpretation 
 which must be first decided. These questions all bear upon the question of whether 
 different treaties, opinions, etc., direct a per stirpes or per capita distribution. 
 
 1. The use of the words "per capita" in the treaty of 1846 and the use of the words 
 "to be divided equally" in the treaty of 1835 in no way direct or justify a per capita 
 distribution of 1910 or of to-day between the descendants of the original parties. The 
 distribution was to be and should be per capita as of the date 1835. The reason for the 
 use of these phrases is evident. The sum was to be paid in consideration of communal 
 property of the ( herokees. The words ' ' per capita " are used in contradistinction to the 
 idea of communal ownersliip. They are necessary as the fund was not to be a tribal 
 furd but individual property. The direction of a per capita distribution as of 1835 
 is the basis for our claim for what we are calling a per stirpes distribution to-day. Also, 
 in the opinion of the Supreme Court of the United States in the "Old Settlers case" 
 (148 U. S., 147) the fund is spoken of as the "per capita" fund to emphasize the fact 
 that there was no communal owmership in regard to it. The opinion nowhere directs 
 a per capita payment to the parties to the treaties and their descendants, but directs 
 distribution according to the treaty of 1846. The actual distribution was per stirpes. 
 
 2. We submit that the words "legal representatives" used in the treaty of 1846 do 
 not mean merely persons in loco parentis, but heirs or administrators. This is the 
 general meaning of the words as is shown in Thompson v. United States (20 Ct. Cls., 
 276), where the court said: 
 
 "The term 'legal representative' is not of uniform interpretation. It may mean 
 those who succeed to the inheritance of the estate, or it may mean those upon whom 
 the law devolves the legal cai^acity of an administrator. The ordinary meaning of 
 the words 'representatives,' 'legal representatives,' 'personal representatives,' is that 
 they refer to the person constituted representative by the proper court, and the onus 
 is upon those attempting to maintain a different construction to show a different 
 meaning. 
 
 "In the absence of anything appearing in the context, those words found in a statute 
 or written instrument must be held as meaning the administrator or executor." [Italics 
 ours.] 
 
 Further the context shows conclusively that such is the meaning here, because 
 otherwise in the case of all those entitled under the treaty of 1835 who had died be- 
 tween 1835 and 1846, lea\^g descendants, the wording of the treaty of 1846 would 
 entirely eliminate such descendants from distribution, and only the surAdvors could 
 recover, as the treaty directs payment "to all those individuals, heads of families, or 
 their legal representatives entitled to receive the same under the treaty of 1835," etc. 
 It has never been claimed and can not now be claimed that the intention was to pay 
 survivors only. Therefore, legal representatives must be interpreted to mean heirs 
 or administrator. Further, it is w^ell settled that in transaction with Indians their 
 interpretation of what is meant by the language must, if possible, be followed. (Choc- 
 taw Nation v. U. S., 119 U. S., 1; Worcester v. Georgia, 6 Pet., 515-582; Jones v. 
 Meehan, 175 U. S., 1-29.) 
 
 The laws of the Cherokee Nation provide, and did then provide, for the descent of 
 property. Therefore all their property was not held under community of ownership. 
 
RELIEF OF HEIRS OF THE EASTERN CHEROKEE INDIANS. 15 
 
 The natural interpretation ol' the words "legal representatives" would be heirs or 
 adiniiiis rat ir. 
 
 3. The mandate of the Supreme Court of April 2!), liMXi, ailirmed the per stirpes 
 distribution provided for in th(> decision of the court in the Court of Claims, for the 
 opinion acconipan>-inu: said mandate states: 
 
 "We eoneur with the Court of Claims in the wisdom of renderang judgment in favor 
 of the Cherokee Nation, subject to the limitation that the amount thereof should be 
 paid to the Secretary of the Interior, to be distributed directly to the parties entitled 
 to it, but we think that the terms of the second subdivision of the fourth paragraph of 
 the decree, directing that the distribution be made to 'the Eastern and Western Chero- 
 kees,' are perhaps liable to misconstruction, although limited to those 'who were 
 parties either to the treaty of New Echota. as proclaimed May 23, 1836. or the treaty 
 of Washington of August 6, 1846, as individuals, whether east or west of the Mississippi 
 River.' This should be modified so as to direct the distribution to be made to the 
 Eastern Cherokees as individuals, whether east or west of the Mississippi, parties to 
 the treaties of 183.5-36 and 1846, and exclusive of the Old Settlers." 
 
 The word which we ha\e italicized, "this," clearly refers back to the quotation 
 from the decree of the Court of Claims. Only the words quoted are to be modified. 
 The quotation does not include the words "or to the legal representatives of such 
 individuals." These words, though coming in the same sentence as and immediately 
 following the word^ quoted, are carefully omitted from said words quoted. Therefore 
 they stand unchanged. Further, the mandate it.self shows that it was not to affect the 
 words "'or to the legal representatives of such individuals" in the mandate of the 
 Court of Claims. For if it were interpreted to exclude these words, the mandate would 
 direct distribution to the sur\-ivors of the parties to the treaties of 1835-36 and 1846. 
 The obvious purpose of the amendment was to exclude the Old Settlers . 
 
 We have advanced three propositions in regard to interpretation of certain treaties 
 and decisions. 
 
 1. That the words "per capita" as used in the treaty of 1846 and in the opinion of 
 the Supreme Court in the Old Settlers case did not mean a present per capita distri- 
 bution among all those entitled but a distribution per capita as of the year 1835, which 
 is what we ask, designating such distribution by the name per stirpes. 
 
 2. That the words "or the legal representatives" meant their heirs, executors, or 
 administrators. 
 
 3. That the mandate of the Supreme Court of the United States of April 30, 1906, 
 affirmed the per stirpes distribution. 
 
 Presuming these propositions correct, on the question of whether distribution should 
 be per capita or per stirpes, it can be .stated that: (1) Treaty of 1835 contracted for a 
 per stirpes distribution; (2) the treaty of 1846 contracted for a per stirpes distribution; 
 
 (3) the Old Settlers indentical claim under the same treaty (1846) was paid per stirpes; 
 
 (4) the Court of Claims original decree directed the per stirpes distribution; (5) the 
 Supreme Court of the United States in its mandate of April 30, 1906, aihrmed a per 
 stirpes distribution; (6) the original decree of the Court of Claims in accordance with 
 said mandate directed a per stirpes distribution. This shows in the form of a sum- 
 mary how the merits of claimants' case have been upheld by different tribunals. 
 
 Later, Guion Miller, the special commissioner appointed by the Court of Claims, 
 reported a per stirpes distribution impracticable, and the Court of Claims then ordered 
 a per capita distribution, no one appearing in opposition thereto. Even when the 
 Court of Claims decided to make a per capita distribution it advanced no real reason, 
 except the impracticability of the per stirpes distribution. Perhaps no atlirmative 
 .argument could .show the injustice of a per capita distribution and the absence of legal 
 grounds therefor more than the weakness of the reasons advanced by the Court of 
 Claims to uphold their order of per capita distribution. Their discussion of the point 
 in full is as follows: 
 
 ' ' It further appearing to the court that the lands disposed of by the Eastern Cherokees 
 under the treaties of 1835-36 and 1846 were owned by them as a community, and the 
 rights arising under said treaties, as established by the decree of May 28. 1906. accrued 
 to the said Eastern Cherokees as communal owners of said land ; and it further ap])earing 
 that from the report of Special Agent Guion Miller, accompanying the reference of the 
 Secretary of the Interior of February 20, 1907, above referred to, that a per stirpes dis- 
 tribution to the Eastern Cherokees who were parties to the treaties of 1835-36 and 1846 
 is impracticable, it is therefore further," etc. 
 
 The first ground that was advanced in this opinion for a per capita distribution, 
 namely, that the property was held in the communal interest, is expressly answered 
 by the language of the Old Settlers case a48 U. S., 427, 479): 
 
 "The lands west of the Mississippi were held as communal property, not vested in 
 the Cherokee as individuals, as tenants in common or joint tenants; but by the treaties 
 
16 BELIEF OF HEIES OF THE EASTEEN CHEROKEE INDIANS. 
 
 of 1835 and 1846 the communal character of the property was terminated as to both 
 Eastern and Western Cherokees, and the fund taking the place of the realty, was 
 invested in the various ways we have mentioned, leaving the remainder to be cUstrib- 
 uted per capita." 
 
 So the only ground worthy of mention advanced for the per capita distribution was 
 the impracticability of the per stirpes distribution. In the mandamus proceedings 
 May 28, 1910, the petition of your present claimants was denied on the single ground 
 of laches. 
 
 So we are presenting to Congress a claim which has had a varied career in the Con- 
 gress and courts of this country, which has never been decided against your claimants 
 on the merits l)y any body, legislative or judicial, and yet which was not paid on the 
 single ground that it was impracticable to make the per stirpes distribution. Still 
 further a rehearing on the question was denied because of laches. Upon these facts 
 we maintain that the distril>ution should have been to the individual Eastern 
 Cherokees parties to the treaties of 1835-36, and 1846, the heirs of each deceased to 
 take his share rather than to the descendants of said Eastern Cherokees parties to said 
 treaties per capita. 
 
 The per stirpes distril)ution was ruled out on the ground of impracticability, but 
 we submit that the per stirpes distribution is practical)le. Under the per capita dis- 
 tribution which was made it was necessary for the commissioner, Mr. Guion Miller, to 
 pass upon tlie question whether or not each applicant for distribution had descended 
 from an Eastern Cherokee party to the treaties of 1835 and 1846. If it was possible for 
 him to pass accurately upon tMs cjuestion, it was possible for him to go further to 
 decide whether or not each claimant had descended from three or four of these Eastern 
 Cherokees. This once done the facts upon which to pass a per stirpes distribution 
 are ascertained. We do not claim that a per stirpes distribution would have been a 
 simple matter. However, only by this method can the parties rightfully entitled be 
 paid. A mere balance of convenience rule can not justify a distribution counter to 
 the terms of the treaties. But most important of all a per stirpes distril^ution has been 
 successfully carried out in the past as in the case of the Old Settlers in 1896. No 
 argument to show the practicability or impracticability can compare with this very 
 simple one — in a similar case it has been done. Fiu"ther the burden is upon the 
 Indians; they must prove their claims or lose their rights. Even though some, per- 
 haps many, of the Indians entitled could not prove their claims, yet those who can 
 prove their claims should be paid in accordance with the original obligation of the 
 United States. _We the attorneys for the claimants have in our possession over 1,000 
 applications which, we believe, contain sufficient evidence upon which to base a per 
 stirpes distribution. 
 
 Though the merits of our case do not depend upon it, we nevertheless advance this 
 final proposition. We merely suggest that the Supreme Court of the United States, 
 in its decision in the mandamus proceedings, in which it denied the petition, obviously 
 overlooked the line of decisions which was nowhere brought to their attention, and 
 that as a result the Supreme Court was in error in holding the petitioners guilty of 
 laches. The line of decisions referred to holds that a tribal Indian can not be guilty 
 oflaches. In Chereokee Nation v. State of Georgia (30 U. S., 1. 17), Chief Justice 
 said, in regard to the Indians: "Meanwhile they are in a state of pupilage. Their 
 relation to the United States resembles that of a ward to his guardian." The American 
 and English Encyclopedia of Law of volume 18, page 108, under the title "Laches," 
 has th is paragraph : 
 
 "rf. Tribal Indians. — Laches can not be imputed to one who is under disability as 
 a tribal Indian." 
 
 In Laughton r. Nadeau et al. (75 Fed. Rep., 789\ X had represented plaintiff as 
 dead, and thereby obtained patent. In a bill by plaintiff to clear title after a lapse of 
 23 years and 7 years after he had become a citizen, the court said: 
 
 "No laches could be imputed to the complainant while under disability as a tribal 
 Indian. He and his lands were under the control of the Government." 
 
 In the case of Felix v. Patrick (145 U. S., 317-332), the Supreme Court said: 
 
 "But, conceding that the plaintiff's ivere incapable, so long as they retained their tribal 
 relations, of being affected uith laches, and that these relations were not dissolved until 
 1887, when they were first apprised of their right to this land, it does not necessarily 
 follow that they are entitled to the relief demanded by this bill." [Italics ours.] 
 
 So lf)ng as the tribal existence continues, the admission of Indians to citizenship 
 does not terminate the relation of guardian and ward upon which the rule that laches 
 can not be imputed to the tribal iTidians is based. (Marchie Tiger v. Western Im- 
 provement Co., 221 U. S., 286; Heckman v. U. S., 224 U. S., 413, at 436; Rainbow v. 
 Young, 161 Fed. Rep., 835; U. S. v. Celestine, 215 U. S., 278; and in re Coombs, 127 
 Mass., 278.) These cases are quoted for two purposes: First, they suggest that the 
 
 RD 1.4 8 
 
 m^ 
 
BELIEF OF HEIRS OF THE EASTERN CHEROKEE INDIANS. 17 
 
 Supreme Court may have erred. Hut even il' the Sujtreme Court did not err, even if 
 the strict h\<j;al rules would bar claimants from relief in courts Ix'cause of laches, are 
 not these casies of persuasive value to su,<i<!;est h<nv much mor(» broadly the principle 
 should be applied by this body, untrammeled as it is by technical rules? 
 
 We are asking ('on_<^re.-<s to pay a debt for the second time. That, to our minds, is 
 the most substantial objection to this claim. IJut we .submit that the facts of this ciise 
 justify .such a double ])ayment by the United Stat(>s. With the treaties of 18.35-36 
 and 184(i as they were, even if court after c(nirt had directed a j)er capita dLstributicm, 
 we would have <i;ood foundation for this claim, requestinj; that a miscarriage of justice 
 be righted. But we have a far better case than that. It has been favorably i)a,s.sed 
 upon on the merits by every tribunal before which 't has come. It has been denied 
 only because of impracticability in the face of the fact that a successful execution in 
 a similar case affords the ch'arest proof of its practicability. \ further hearinu; on 
 the question was denied on the ground of laches without consideration of the authorities 
 we have advanced to show that laches can not be imputed to a tribal Indian. 
 
 These are the facts upon which we base our right to relief from the Congress of the 
 United States. 
 
 We are not asking Congress to pass a lull on the theory that the courts have decided 
 the case incorrectly after hearing our arguments. We are asking Congress to legislate 
 so as to atiirm all the decisions except the dual one of the Court of Claims. We are not 
 asking Congress to go behind the Supreme Court of the United States. We are merely 
 asking Congress not to liar claimants because of laches, notwithstanding the fact that 
 the Supreme Court did so bar them. 
 
 Respectfully submitted. 
 
 Mr. Church. Now, ^frs. Sanders, you want to speak foi- three 
 miniitos ? 
 
 STATEMENT OF MRS. SUSAN SANDERS, OF ST. LOUIS, MO. 
 
 Mrs. Sanders. Yes; one minute. He now has rendered your most 
 sincere, earnest attention to me, and this gentleman speaks very 
 fluently and it seems he understands what the lawyers have related 
 to you. 
 
 Now, 1 want to say to you, gentlemen, that aftei- John B. Daish 
 put his brief in as findings of fact to the Supreme Court — you know 
 for the mandamus — we found later in the law that ladies can not bo 
 imputed to tribal Indians: and by the 20 letters which were left hero 
 for this committee you will find that 1 have set out most every specific 
 point in the Freedmen case and the Emigrant case — giving you such 
 as I have copied from the records of the court. 
 
 Now, I wish to relate one little point. Laches can not be imputed 
 against tribal Indians. 
 
 Now, then, so long as I live, I leave it to you men, and I believe you 
 are men of honor and iiearts and of futtire ideas — now, then, can 
 your heir take your father's and mother's estate while you live ? The 
 law says no. Can my grandcliihh-cn come in and take what belonged 
 to my father and my mother? There is no law in the United States, 
 in justice and in equitv, can ever take the property wiiile I live, 
 without a will. If it is left by a will, that is different , but if it is left 
 open, my father's estate comes to me as long as 1 am the surviving 
 heir. 
 
 I thank you for your attention. 
 
 Mr. Church. I believe that concludes the hearing. 
 
 (Whereupon, at 4.20 o'clock p. m., the subcommittee adjourned.) 
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