Index to the Opinions of the Attornies [sic] General of the United States ...

CHARTER-PARTY, (continued.)

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The terms of the contract are too explicit to admit of any interpretation that would permit the Government to substitute for a right or privilege, which it waived, a distinct service for which it had stipulated a distinct compensation.. THE CHEROKEES AND THEIR LANDS

The United States acquired from Great Britain by the treaty which terminated the American revolution a clear title to all the lands within the boundaries designated therein, subject only to the Indian right of occupancy......

This is the doctrine which was asserted by the various European nations who acquired territory on this continent anterior to the treaty with Great Britain, and is the spirit of the several compacts made with the Cherokees when they are correctly interpreted....

The conqueror always possesses the right to prescribe the limitations of the conquest and the terms and conditions of peace.

The first treaty with the Cherokees (concluded at Hopewell) regarded them as a conquered people, and tendered them a peace upon certain conditions. It assigned them a country to hunt and to dwell in, and, as an act of grace, a lease and determinable interest, but no title nor any permanent interest in the soil...

Upon these terms the Cherokees agreed to accept and retain the possession of the lands thus allotted to them..

The treaty of Hopewell settled a principle which may be regarded as fundamental, and one which became the basis of all subsequent stipulations, and which furnished the key for their interpretation....

The compact of 1817 was made with the same general understanding of the law, and of the right of the United States to regulate the concerns therein mentioned of those who might remain, as well as those who might emigrate to lands west of the Mississippi. It stipulated for payment by the United States to those emigrants whose improvements should add real value to their lands, a full valuation for the same, to be ascertained by a commissioner to be appointed by the President of the United States. And for all improvements which added real value to the lands ceded to the United States, they agreed to pay, in like manner, or to give improvements which emigrants should have left in exchange. It moreover provided, that all the improvements left by the emigrants within the bounds of the Cherokee nation east of the Mississippi, which added real value to the lands, and for which the United States should give a consideration, and not so exchanged, should be rented to the Indians until surrendered, &c.; by which the United States became land-holders within the limits reserved to the Indians for hunting grounds...

1954

691

So far as the United States acquired by negotiation and contract the possession of any of these lands, the same inured, under the treaty of 1817, to the State of Georgia, and not to Cherokees who remained behind..

691

The sum of sixty thousand dollars constitutes the whole amount which can be paid by the United States for the claims of citizens for services rendered the Cherokee nation by the treaty of 1836..

Claims under the treaty must be for services of a lawful nature, and performed at the
instance and request of the acting authorities of the nation.
Claims under the Cherokee treaty of 1835, were to be examined and adjudicated by
commissioners to be appointed by the President, by and with the advice and con-
sent of the Senate, and their decisions were to be final..

1104

The Attorney General will, however, advise that, whatever may have been the literal construction of the treaty of 1817 in regard to the rights of reservees, provided for therein, to locate their lands without the limits of the session then made, that right, after the subsequent acts of the parties in the execution of the treaty, and for the purposes of the late treaty, must be conceded to exist......

1210

The Cherokee fund is not liable for damages arising from the non-fulfilment by the
Government of contracts made for the removal of, and supplies for, the Cherokee
Indians..... .

The departure of the Indians to the west, was a condition precedent to their receiving the commutation for expenses of removal..

1254

1407

The President has power to appoint new commissioners under the Cherokee treaty of New Echota, for the adjustment of all the claims provided for therein, there being no limitation to their authority, except the fulfilment of its purpose...

1517

CHEROKEE TREATY OF 1835, (continued.)

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The expenses of such commission cannot be defrayed out of the Cherokee fund, however, but must be from appropriations to be made by Congress.... The jurisdiction and authority of the present commissioners, under the treaty with the Cherokees, is limited to cases under the treaty which were not disposed of by the former board...

1517

The claim of Rogers having been considered, disposed of, and reported upon by the former board, was not a proper subject for the adjudication of the present commissioners; wherefore, any decision made thereon by the latter was and is nugatory and void....

.....

Awards by the present commissioners upon claims not referred to them, nor comprised within the limits of their authority, furnish no warrant to the officers of the treasury for paying them....

1585

The allegation, that the former board rejected the claim through mistake, in nowise affects the question of jurisdiction. If there were a mistake, and a wrong done in consequence of it, the claimant can obtain redress only by an appeal to Congress. 1535 The head of a Cherokee family is entitled to receive the amount awarded to his claim to a reservation. He is quoad hoc the guardian of his children.

The act of June 17, 1844, restrained the further exercise of Executive authority to
appoint commissioners to examine claims under the treaty of New Echota, and he
cannot now constitute a new board without plainly disregarding the will of Con-
gress in the premises...

If there remain any claims yet unadjudicated, the Executive is advised to apply to
Congress for an appropriation to enable him to carry the treaty into effect..
The Cherokees remaining in the States of North Carolina and Tennessee are not en-
titled to the commutation for removal and subsistence given by the eighth article of
the treaty to those who have removed west of the Mississippi...
They can only receive their due portion of personal benefits accruing under the
treaty, for their claims, improvements, and per capita, whenever an appropriation
shall have been made to carry it into effect...

The statements of the commissioner and others that the Cherokees were assured that
those who did not emigrate west should have the benefit of the pecuniary allow-
ance, are inadmissible as evidence in the case.
Whether the lands in North Carolina belonged to the Indians residing on them is a
question for the judiciary, now that they have been sold and the purchasers put in
possession..

A Cherokee reservee, under treaty of 1835, in whose favor the commissioners appoint-
ed to adjudicate claims made an award, but to whom they delivered no certificate, is
nevertheless entitled to payment....

As a general rule the certificate of the commissioners, indicating the amount due the
claimant is the proper evidence of the fact to be produced to the accounting officers,
and upon which they are to make the payment; yet the rule is not entirely inflex-
ible....

Claimants under the 17th article of the Cherokee treaty of 1835, in whose favor an
award by the commissioners was made, are entitled to be paid, even though they
are not able to present any certificate of the amount to the accounting officers,
there being an express adjudication under the treaty on file......
Under a reconsideration of the claim of David Taylor to payment of an award by the
commissioners, upon further evidence produced, it is made evident that the claim
was not adjudicated within the terms of the treaty..

The Attorney General, therefore, revises his former opinion in the case, and advises
that payment to the claimant cannot be properly made unless the same shall be
hereafter allowed by the commissioners....

1585

1747

1758

1800

1802

1818

.... 1818

For this purpose, it will be just to afford the claimant and the board all the facilities and information on the subject which the records and files of the Department contain. 1818 The claims of Cherokees for the value of alleged pre-emption rights, asserted under the treaty of 1835-'6 with that nation, are inadmissible under the convention as the same was ratified.....

.... 1840

1840

That part of the 12th article which in the original draught created pre-emption rights, was annulled by mutual consent before the treaty was submitted to the Senate; so that no such rights were ever granted to any portion of the Cherokee people... The supplemental articles modified the contract by abolishing the distinctions created in the original draught, and provided for the removal of the whole people together to the country provided for them west of the Mississippi-a purpose wholly incompatible with the idea upon which the claimants proceed who set up claims for the value of pre-emptions. The claim of Andrew Taylor, therefore ought not to be allowed. 1840 The appropriation act of June 27, 1846, provided that the commissioners to examine

CHEROKEE TREATY OF 1835-6, (continued.)

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claims under the treaty with the Cherokees should continue in office for one year from the date of their appointment, and no longer.....

The moneys appropriated by the act of March 3, 1847, to pay the expenses of the commission, are applicable as well to the payment of the salaries as the incidental expenses of the board.....

1851

Reservees under the treaty with the Cherokees who disposed of their land, are not entitled to compensation for improvements thereon, as they passed with the soi!... 1852 The compensation provided by 4th clause of the 6th article, and the 1st clause of the 7th article of the treaty, cannot be awarded to reservees, but only to emigrants..... 1852 Nor can compensation be awarded to those who were not in possession of improvements at the date of the treaty..

1852

1864

The claim of Andrew Taylor, and of others similar to his, should be rejected.... The certificate of an award to a claimant under the treaty of 1835-'6 with the Cherokees cannot be so amended as to include a claim presented and allowed under the 13th, within the 3d supplemental article of that convention.... All Cherokee reservees who were obliged to abandon their reservations by the laws of the State in which they were situated, were expressly provided for by the 13th artical of the treaty, and expressly excluded from the 3d article of the supplement.... 1864 And as the claimants have not brought their case within the 3d article of the supplement, the award cannot be paid from the fund provided for its execution.... Claimants under the 10th article of the treaty of 1835-'6 who presented their demands to the first board, and received their due proportion of the sixty thousand dollars therein provided for services rendered the Cherokee nation, are not entitled to any further allowance from the present board...

1864

1874

The appropriation of sixty thousand dollars in the 10th article of said treaty was in full discharge of all obligations in that respect assumed by the United States.... 1874 Neither the wife of a white man, who entered a reservation to her under the treaty of 1817, and within the limits of the grant of North Carolina to the Cherokees in 1783 and the treaty of 1819 with the Cherokee agent, in her right, nor her children, are entitled to compensation for the value of such reservation if it appear that the same were voluntarily sold and abandoned prior to the ratification of the treaty of 1835–26. 1875 The reservation in this case having been sold and abandoned long before the ratification of the said treaty, the claim made for its value ought to be rejected...... This opinion expounds the treaty of 1835-'6, and answers the arguments of counsel for the claimants in this and similar cases... Payment of an award of the Cherokee commissioners to Betsey McIntosh, upon a claim preferred by her, under the 13th article of the treaty of 1835 with the Cherokee nation, for the value of a reservation which she had been required to abandon, cannot be made from the moneys appropriated by the acts of 2d July, 1836, and 12th June, 1838....

It was expressly stipulated in the treaty, that the compensation to be made to this class of reservees should not be paid out of the moneys allowed to the Cherokees.-(See Mr. Butler's opinion upon this question, delivered in December, 1837.).... Where an agent and attorney for claimants, under the treaty of 1835-'36 with the Cherokees, undertook to prosecute certain claims before the commissioners for the consideration of ten per cent. upon every claim awarded, and omitted to claim his percentage upon the first award, consenting to its payment, to the party, but claimed the same upon the payment of a subsequent award, as well as the ten per cent. on said last award-DECIDED, that the officers of the Treasury ought not to deduct from the last award any per-centage which may have accrued to the agent and attorney upon other claims..

.....

The ten per cent. to be paid the agent and attorney out of any sum or sums awarded, must be construed to mean ten per cent., not upon the aggregate, and to be paid out of one award, but upon each claim, as the same should be allowed.... Payment of the awards of the commissioners appointed to adjudicate certain claims preferred against the United States, under the treaty of 1835-236 with the Cherokees, since the passage of the act of July 29, 1846, is required to be made to the claimant, or claimants, or to his, her, or their executor or executors, administrator or administrators, unless some other person shall produce a warrant of attorney, attested, witnessed, and acknowledged, referring to the resolution allowing the claim, and specifying the amount, and authorizing him to receive it. Neither the agent, nor attorney who prosecuted any claim, nor any substituted attorney, is entitled to receive the amount except he produce such a warrant from the claimant....

The claim of the Board of Commissioners for Foreign Missions for their missionary establishments in the country ceded to the United States by the Cherokee treaties of 1835-236, cannot be paid and properly charged to the Cherokee nation, or deducted

1875

1879

1959

1974

CHEROKEE TREATY OF 1835-6, (continued.)

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out of their funds held by the United States, without the adjudication and certificate of the Board of Commissioners provided for in seventeenth article of the treaty..... 2109 The valuation of the agents alone is not sufficient. The agents to make the valuations were convenient auxiliaries to the Board of Commissioners appointed by the President under the 17th article of the treaty; but they are not substitutes for that board. 2109 The present claim not having been sanctioned by the adjudication and certificate of the commissioners, ought not to be allowed... 2109 See also...

CHEROKEE TREATY of 1846..
CHESAPEAKE AND OHIO CANAL.

.1163, 1183, 1243, 1303, 1640, 1747, 1758

1879

The Chesapeake and Ohio Canal Company may commence the eastern section of the canal at any point on the tide-water on the Potomac, within the District of Columbia, which they may select....

589

The route of the canal through the city, and the time within which the work shall be finished, rest entirely in the discretion of the company..

589

Two resolutions of the board of directors are commented upon at length, and decided to contain nothing that violates any provision of the charter..

589

2106

CHICKASAWS, CORCORAN AND RIGGS' CLAIMS AGAINST.

CHESTERFIELD PACKET..

CHICAGO RIVER, accretion in...

The account of the Chickasaws is to be considered now as having been properly opened
and restated, and the balance found due by the accounting officers is properly
chargeable to the appropriation for the subsistence and removal of Indians...
The contract assigned to Corcoran & Riggs is valid, and should be paid out of the
fund otherwise payable to the Chickasaws...

2144

On a reconsideration of the cases of the Chickasaw nation against the United States, and of Corcoran & Riggs, assignees of William M. Gwin, there is found to exist no reason for changing the opinion expressed on the 3d of January, 1850... 2145 The account of the Chickasaws is to be considered as having been properly opened and restated, and the balance found due by the accounting officers is properly chargeable to the appropriation for the subsistence and removal of the Indians.... 2145 The contract assigned to Corcoran & Riggs is valid, and should be paid out of the fund otherwise payable to the Chickasaws...

CHICKASAW AND CHOCTAW FUNDS.

2145

....... 1361

The Chickasaw invested stocks belonging to the fund created by the treaty of 20th
October, 1832, cannot be transferred to the Choctaws in payment of the land pur-
chased of them, without the previous consent of the President and Senate...
The general assent of the President and Senate to the stipulations of the convention
between the Chickasaws and Choctaws, by which the former were to pay the
latter five hundred and thirty thousand dollars, cannot be regarded as such an as-
sent as to authorize an application of the funds of the Chickasaws to the payment
suggested.

The 5 per cent. Alabama stocks transferred from the Chickasaw to the Choctaw fund,
in compliance with the treaty of March 24, 1837, between those nations, did not
fully come up to what the Choctaws might have reasonably required...
But as the consent of the Senate was and is requisite to any transfer or investment for
them, it will be requisite to the making up of the deficiency.
CHICKASAW TREATY OF 1818......

1361

1748

1748 1136

.1341, 1715

In case an investment in stocks having twenty years to run cannot be made, it will
be proper to invest them in stocks redeemable at a later day....
The 4th section of the act of 3d March, 1845, making appropriations for civil and
diplomatic expenses of government, is a qualified act of limitations, suspending
proceedings at the treasury, without taking away the right of individual claim-
ants who may appeal to Congress in all such cases where redress is denied them
by the inhibitions thus imposed on the accounting officers. The accounts of the
Chickasaw fund are within this section, and, once passed upon, cannot be recon-
sidered without the authority of a law..

Allen Yates and wife are each entitled to two sections of land under the second clause. of the supplement to the treaty of Dancing Rabbit creek......

CHOCTAW TREATY OF 1830, (continued.)

The commissioners to carry into effect the treaty had no authority to take proof of any claim in favor of an assignee of an Indian who transferred his claim within the five years mentioned in the 9th section of the act of the 23d of August, 1842, inasmuch as they were expressly denied any authority to recognise or allow to an Indian, or to the assignee of an Indian, any claim which had been so assigned, in whole or in part....

The counsel for the Choctaws, although enjoying the privileges of his relations, may be examined as to which of the Choctaw claimants are his clients; when and by whom he was retained; whether he or his clients is or are, or has or have been, in possession of any document which the commissioners may deem important as evidence; and what disposition has been made of it......

If, in determining whether any of the cases are within the 9th section of the act of 23d August, 1842, it appear that an assignment, or an agreement to assign, has been reduced to writing and executed by the parties, the written instrument must be produced if in the power of the party to do so; if not, secondary evidence of its contents is admissible...

The destruction of the paper, or its being in possession of the claimants or their coun-
sel and not produced on notice, excuses secondary evidence...
As to whether a power of attorney will operate as an assignment depends upon the
form of the instrument; where it forms part of a contract, or is coupled with an in-
terest, it may be regarded as an assignment within the 9th section of the act of 23d
August, 1842..

The power of attorney in this case, ex pressing a valuable consideration, and being ir-
revocable, and containing no reservation to the maker, is an assignment prima facie,
but susceptible of explanation by parol testimony and circumstances.
Certificates issued under the third section of the act of August 23, 1842, to provide for
the satisfaction of claims under the fourteenth and nineteenth articles of the treaty
of Dancing Rabbit creek, when held in good faith by a pre-emptor, are receivable in
payment for pre-emption lands.

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1722

... 1782

They are assignable in form; and, as it could not have been expected that the Indians themselves would pay them in for public lands, it is fair to presume that they were intended for sale and use by others.

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