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Petition by Bryan, Wilson, and Hendricks, under Act. Feb. 25, 1889, ( 25 St. at Large, p. 694,) for themselves, and as commissioners of the 'Old Settlers,' or 'Western Cherokee,' Indians, to recover moneys alleged to be due from the United States. A decree was given for petitioners. Both parties appeal. Modified and affirmed.
'Section 1. That the claim of that part of the Cherokee Indians known as the 'Old Settlers,' or 'Western Cherokees,' against the United States, which claim was set forth in the report of the secretary of the interior to congress of February third, eighteen hundred and eighty-three, (said report being made under act of congress of August seventh, eighteen hundred and eighty-two,) and contained in executive document number sixty of the second session of the forty-seventh congress, be, and the same hereby is, referred to the court of claims for adjudication; and jurisdiction is hereby conferred on said court to try said cause, and to determine what sum or sums of money, if any, are justly due from the United States to said Indians, arising from or growing out of treaty stipulations and acts of congress relating thereto, after deducting all payments heretofore actually made to said Indians by the United States, either in money or property; and, after deducting all offsets, counterclaims, and deductions of any and every kind and character which should be allowed to the United States under any valid provision or provisions in said treaties and laws contained, or to which the United States may be otherwise entitled, and after fully considering and determining whether or not the said Indians have heretofore adjusted and settled their said claim with the United States, it being the intention of [148 U.S. 427, 429] this act to allow the said court of claims unrestricted latitude in adjusting and determining the said claim, so that the rights, legal and equitable, both of the United States and of said Indians, may be fully considered and determined; and to try and determine all questions that may arise in such cause on behalf of either party thereto, and render final judgment thereon; and the attorney general is hereby directed to appear in behalf of the government; and, if said court shall decide against the United States, the attorney general shall, within sixty days from the rendition of judgment, appeal the cause to the supreme court of the United States; and from any judgment that may be rendered the said Indians may also appeal to said supreme court: provided, that the appeal of said Indians shall be taken within sixty days after the rendition of said judgment, and said court shall give such cause precedence: provided, further, that nothing in this act shall be accepted or construed as a confession that the government of the United States is indebted to said Indians.
And it was thereupon averred that under the provisions of certain treaties, made and entered into in 1817 and 1819, the Western Cherokees, or Old Settlers, sold, ceded, and relinquished, and there was conveyed to the United States, all their right, title, and interest in and to all the lands belonging to them situated in the states east of the Mississippi, and in consideration thereof the United States sold them certain lands, situated in what is now the state of Arkansas. That, in consideration of the subsequent sale and cession of the lands in Arkansas to the United States, and in further consideration of the removal of the Western nation of Cherokees from the state of Arkansas, under the provisions of the treaties of May 6, 1828, and February 14, 1833, between the Western Cherokee nation and the United States, the latter bargained, sold, ceded, relinquished [148 U.S. 427, 430] and conveyed, solely and exclusively to the Western Cherokee nation, subsequently known as the 'Old Settlers,' all the lands situated in the now Indian Territory, and described in the treaties of 1828 and 1833, and solemnly guarantied the lands to them forever. That while in the peaceable and undisputed possession and enjoyment of the tract of land, in the now Indian Territory, the United States, under the color of a pretended treaty with the Eastern Cherokee nation in 1835, made and entered into without the knowledge or consent of the Western Cherokee nation, and to which it was not a party, and from the provisions of which it was prevented from protecting itself by force and fraud on the part of the United States, granted to the Eastern Cherokees the same lands that were sold and conveyed to the Western Cherokee nation, without the consent and against the wishes and in fraud and violation of the rights of the latter, and removed the Eastern Cherokees, against their will and by force of arms, from their homes east of the Mississippi, and located them upon the lands belonging to the Western Cherokees, thus depriving them of the sole use, right to, and interest in the lands as guarantied by treaty, and reserving to them only an interest in proportion to their numbers, they being but one third of the whole Cherokee people. That from that time, and continually thereafter, the Western Cherokees protested against and resisted this invasion of their rights, until in 1846, when, acting under duress of life, liberty, and property, advantage being also taken by the United States of the fiduciary relations existing towards the Western Cherokees, and also of the condition of extreme impoverishment, destitution, and want to which the Western Cherokees had been reduced by the United States, they were forced to make and enter into an agreement with the United States, fraudulent in character, by the terms of which the consideration they were to receive was grossly inadequate to compensate them for their right to and interest in the lands, of which they had been unjustly deprived by the United States, and for the property destroyed and lost to them through the wrongful acts of the United States, and its default to comply with its treaty obligations It was further alleged that the land so [148 U.S. 427, 431] bargained, sold, relinquished, and conveyed to the Western Cherokees by the treaties of 1828 and 1833 contained in all 13,610,795.34 acres, and that the Western nation of Cherokees formed but one third of the whole Cherokee race, the Eastern nation forming the other two thirds; and that the amount of land owned by the Western nation, which was appropriated by the United States and granted to the Eastern nation of Cherokees, under the provisions of the treaty of 1835, was the same part of the whole body of land as was the Eastern nation of the whole body of the Cherokee people; and that, therefore, the United States took from the Western Cherokees, and deprived them of the sole use, right, title, and interest in and to two thirds of 13,610,795.34 acres, amounting to the sum of 9,073,863.56 acres, and converted the same to the public use and benefit; the land being worth at the time it was so taken and converted the sum of $5,671, 164.72 1/2.
Petitioners further alleged that after the Eastern Cherokees had been forcibly removed into the country of the Western Cherokees through the wrongful acts of the United States, and because of its failure to protect the Western Cherokees according to treaty stipulations, property of great value was lost to them to wit, of the value of $30,000; and, further, that the only payments made to the Western Cherokees since the appropriation of their lands and the destruction of their property were the sum of $532,896. 90, appropriated by act of congress of September 30, 1850, (9 St. 556;) a one-third interest in the sum of $500,000, given by the United States to the whole Cherokee people in common, by the treaty of 1835; and a one- third interest in 800,000 acres of land sold in common to the Cherokee people by the United States in the treaty of 1835, which was made exclusively with the Eastern Cherokee nation, for the sum of $500,000, at which valuation the Western Cherokees have been and still are held charged by the government for their one-third share.
It was further alleged that under the provisions of the treaty of 1846 the sum of $5,600,000, which had been provided by the treaty of 1835, and a supplementary treaty thereto of 1836, was adopted and taken by the United States [148 U.S. 427, 432] as a basis of settlement of the claims of the Western Cherokees against the United States, from which amount certain sums were to be first deducted, and of the residuum thus obtained the Western Cherokees were to be paid one third, according to their numerical proporation to the whole people, and that the charges to be made against the said 'treaty fund' were to be limited to 'proper' and legitimate charges, 'excluding all extravagant and improper expenditures.' That the only legitimate charges against the treaty fund are among those enumerated in the fifteenth article of the treaty of 1835, as provided in the treaty of 1846, which proper charges were as follows, to wit: The amount invested as a general national fund, $500,000; the amount expended for 800,000 acres of land $ 500,000; the amount expended for improvements, $1,540,572.27; the amount expended for ferries, $159,572.12; the amount expended for spoliations, $ 264,894.09; and that the $600,000 forming a part of the treaty fund was provided by article 3 of the supplemental treaty of 1836, for, among other things, the removal of the Eastern Cherokees. That out of this fund there were removed in number 2,495. That of this number 295 were chattels, to wit, slaves. That for the removal of personal property there was no provision made by the treaty; and that, therefore, the only proper expenditure for removal was for 2,200 Eastern Cherokees, at $20 each, according to the terms of article 4 of the treaty of 1846, amounting to $ 44,000.
It was also charged that by the fourth article of the treaty of 1828 there were 3,343.41 acres reserved by the United States, which the latter agreed to dispose of and to apply the proceeds thereof to the sole interest and benefit of the Western Cherokees, together with the value of certain agency improvements on the lands, and that the United States have failed and neglected to do so, and are therefore liable for the full value of the lands and agency improvements; in all, the sum of $9,179.16 1/4.
It was further averred that, according to the foregoing itemized statement under article 4 of the treaty of 1846, their account with the United States should be stated as follows: [148 U.S. 427, 433] Dr. Cr.
'For this amount, together with interest at the rate of 5 per centum per annum from June 12, 1838, until paid, your petitioners ask for a decree.
'Second. That if this honorable court should hold that they are not entitled to the relief above prayed for, that the defendants be adjudged and decreed to pay unto your petitioners the sums of $330,756.94, under the provisions of the fourth article of the treaty of 1846, and $9,179.16 1/4 under the provisions of the treaty of 1828, and the further sum of $30, 000 for property destroyed, etc.; in all the sum of $369,936.10 1/4, with interest at the rate of five per centum per annum from June 12, 1838, until paid.
It was further recited that the Cherokees had explored the country on the west side of the Mississippi, and had settled down upon United States lands on the Arkansas and the White rivers, and that these emigrants, and those about to remove, were ready to relinquish their proportionate rights in the lands east, which they had left and were about to leave. Thereupon the cession of certain lands was made; a census of those Indians remaining east and of those on the Arkansas, and removing there, or declaring their intention of doing so, was provided for; the annuity for 1818 was agreed to be divided in proportion to the numbers of the two parts of the nation; and the United States bound themselves to give as much land on the Arkansas and White rivers as they had or might receive of the lands east, as the just proportion of that part of the nation on the Arkansas agreeably to their numbers; also to give to all the poor warriors who might remove, one rifle and ammunition, one blanket, and one brass kettle or [148 U.S. 427, 436] beaver trap; to furnish flat-bottomed boats, and provisions to aid in removal, and to pay for improvements adding to the real value of the lands ceded. 7 St. p. 156.
By article 2 the United States agreed to possess the Cherokees with the land described west of the Arkansas, and by article 3 the exprenses of removal are provided for.
By the fourth article the property and improvements connected with the Indian agency were to be sold under the direction of the agent, and the proceeds of the same to be applied in the erection, in the country to which the Cherokees were going, of a grist and saw mill for their use.
Article 8 stated that 'the Cherokee nation west of the [148 U.S. 427, 437] Mississippi having, by this agreement, freed themselves from the harassing and ruinous effects consequent upon a location amidst a white population, and secured to themselves and their posterity, under the solemn sanction of the guaranty of the United States, as contained in this agreement, a large extent of unembarrassed country; and that their brothers yet remaining in the states may be induced to join them and enjoy the repose and blessings of such a state in the future, it is further agreed on the part of the United States that to each head of a Cherokee family now residing within the chartered limits of Georgia, or of either of the states east of the Mississippi, who may desire to remove west, shall be given, on enrolling himself for emigration, a good rifle, a blanket, and kettle, and five pounds of tobacco, (and to each member of his family one blanket;) also a just compensation for the property he may abandon, to be assessed by persons to be appointed by the president of the United States. The cost of the emigration of all such shall also be borne by the United States, and good and suitable ways opened, and provisions procured for their comfort, accommodation, and support by the way, and provisions for twelve months after their arrival at the agency,' etc. 7 St. p. 311.
A supplemental treaty with the Western Cherokees was proclaimed February 14, 1833, the purpose of which was to more clearly define the boundaries of the cession of 1828. By the fourth article certain corn mills were to be erected in lieu of the requisition of article fourth of the prior treaty. 7 St. p. 416.
Efforts followed the treaty of 1828 to induce the Eastern Cherokees to remove west, but the consent of all could not be obtained. The Eastern Cherokees became divided into two parties, the Ridge, or treaty party, and the Ross party, of which the latter was largely in the majority. December 29, 1835, a treaty was made with 'the chiefs, headmen, and people of the Cherokee tribe of Indians,' at New Echota, and proclaimed May 23, 1836, which referred in its second article to the treaties with the Western Cherokees of 1828 and 1833 as securing the conveyance of the 7,000,000 acres, and the [148 U.S. 427, 438] outlet to the 'Cherokee nation of Indians,' and recited that, 'whereas, it is apprehended by the Cherokees that in the above cession there is not contained a sufficient quantity of land for the accommodation of the whole nation on their removal west of the Mississippi, the United States, in consideration of the sum of five hundred thousand dollars therefor,' thereby covenanted and agreed to convey 800,000 acres more.
'Art. 8. The United States also agree and stipulate to remove the Cherokees to their new homes, and to subsist them one year after their arrival there, and that a sufficient number of steamboats and baggage wagons shall be furnished to remove them comfortably, and so as not to endanger their health, and that a physician, well supplied with medicines, shall accompany each detachment of emigrants removed by the government. Such persons and families as in the opinion of the emigrating agent are capable of subsisting and removing themselves shall be permitted to do so, and they shall be allowed in full for all claims for the same twenty dollars for [148 U.S. 427, 439] each member of their family, and in lieu of their one year's rations they shall be paid the sum of thirty-three dollars and thirty-three cents, if they prefer it.
Article 11 provided for a commutation of the permanent annuity of $10, 000 for the sum of $214,000.
By article 16 it was stipulated that the Cherokees should 'remove to their new homes within two years from the ratification of this treaty,' and by article 17, that 'all the claims arising under or provided for in the several articles of this treaty shall be examined and adjudicated by ... such [148 U.S. 427, 441] commissioners as shall be appointed by the president of the United States for that purpose; and their decisions shall be final, and on their certificate of the amount due the several claimants they sahll be paid by the United States.' 7 St. p. 478.
'Art. 2. Whereas the Cherokee people have supposed that the sum of five millions of dollars fixed by the senate in their resolution of ___ day of March, 1835, as the value of the Cherokee lands and possessions east of the Mississippi river was not intended to include the amount which may be required to remove them, nor the value of certain claims which many of their people had against citizens of the United States, which suggestion has been confirmed by the opinion expressed to the war department by some of the senators who voted upon the question; and whereas, the president is willing that this subject should be referred to the senate for their consideration, and, if it was not intended by the senate that the above-mentioned sum of five millions of dollars should include the objects herein specified, that in case such further porvision should be made therefor as might appear to the senate to be just.
Article 4 provided: 'It is also understood and agreed that the one hundred thousand dollars appropriated in article 12 for the poorer class of Cherokees, and intended as a set-off to the pre-emption rights, shall now be transferred from the funds of the nation, and added to the general national fund of four hundred thousand dollars, so as to make said fund equal to five hundred thousand dollars.' 7 St. p. 488.
There was accordingly ivested $714,000,-$500,000 national fund, covering the various items before mentioned, and $214,000 commutation.
The $5,600,000 was thenceforth commonly styled the 'treaty fund,' though the $600,000 was allowed with particular reference to the expense of removal.
The court having ruled the secretary of the interior to furnish from the official records of his department information-First, as to the number of acres of land ceded to the Cherokee Indians under the treaty of December 29, 1835, exclusive of the 800,000 acres; and, second, the number of acres of land ceded and relinquished by the Cherokee Indians to the United States east of the Mississippi river under said treaty,-the secretary furnished a letter from the acting commissioner of Indian affiairs to him, from which it appeared that the land by actual survey ( except the Cherokee reservation, which was estimated) amounted to 13,610, 795.34 acres, and that the number of acres stated in the patent issued December 31, 1838, to the Cherokee nation for said land, the outlying boundaries of which had been surveyed, was 13,574,135.14, which included the 7,000,000 acres, and the outlet as such; and, further, that there were no data in the office of Indian affairs from which an approximate estimate could be made of the number of acres of land ceded to the United States east of the Mississippi, but that a letter to the secretary of war, dated February 27, 1833, gave an estimate of 6,730,000 [148 U.S. 427, 443] acres, which was believed too large by nearly a million of acres.
The treaty of New Echota was signed by persons purporting to represent the Eastern Cherokees, and assent to its provisions was given by two delegates from the Western Cherokees. John Ross and his followers were absent from the council that adopted the treaty, and disputed its validity. The authority of the Western delegates was also denied. The Ridge, or treaty party, numbered some 2,200, and they emigrated to the west, carrying with them 295 slaves; the cost of removal falling on the United States. The Eastern Cherokees, numbering 14,757, disavowed the treaty, and memorialized the president and congress. The United States authorities then, in effect, offered that if they would remove to the Indian Territory the expense of their subsistence should not be charged against the $5,600, 000. Early in 1838 the removal of these Indians by military force commenced, and by act of congress of June 12, 1838, (5 St. p. 241,) $1,047, 067 was appropriated to defray the expenses of their removal and subsistence. The whole of this appropriation was expended, and, in addition, the sum of $189,422.76. In August, 1838, on their way to the Indian Territory, the Eastern Cherokees last mentioned resolved in council 'that the inherent sovereignty of the Cherokee nation, together with the constitution, laws, and usages of the same, are, and by the authority aforesaid, are hereby declared to be, in full force and virtue, and shall continue so to be in perpetuity, subject to such modifications as [148 U.S. 427, 444] the general welfare may render expedient.' Upon their arrival they refused to submit to the government of the Western Cherokees, but offered to unite in a general council, which should frame a constitution and establish a government for all. The Western Cherokees declined to make this arrangement, and insisted that the Eastern Cherokees had entered their territory without their permission, and that their character was that of aliens or immigrants, subject to the constitution and laws theretofore existing in the territory. A number of efforts followed to form a union, and at a popular convention in January, 1840, an act of union was ratified, which had been adopted in July, 1839. The validity of this act of union and of the ratification was denied, but the Cherokee nation thereby created seems to have been recognized as lawful by the United States. However, between the years 1838 and 1846, the Cherokee country was the scene of intestine disordrs of the gravest character, destroying the rights and liberties of certain of the Cherokees, and endangering the peace of the frontier.
June 18, 1846, the Western Cherokees agreed to submit their claims to a board of commissioners to be appointed by the president and senate of the United States. The board was appointed, and arrived at and announced its conclusions after an elaborate presentation of the claims of the Western Cherokees.
On August 3, 1846, the delegates of the Western Cherokees informed the commissioners that they were willing to agree to the suggested basis of settlement, which they state as they understand it; and closed their letter by saying 'that they will always consider whatever money may be paid their people, under the provisions of the present treaty, will be received as a payment for their country west of the Mississippi, which they now relinquish to the whole nation. They do not acquiesce in the decision of the commissioners that their country became the property of the whole Cherokee people by virtue of the treaty of 1828, or any subsequent treaty, and, should the treaty now proposed fail from any cause, it is their fixed determination to reassert their rights to the country secured to them by the treaty of 1833, and to prosecute their claim to [148 U.S. 427, 445] same by all proper and lawful means in the power of a feeble and oppressed people;' and they ask that the letter be communicated to the president and senate of the United States with the other proceedings.
August 6, 1846, a treaty was concluded between the United States, by Edmund Burke, William Armstrong, and Albion K. Parris, commissioners, the principal chief and delegates duly appointed by the Eastern Cherokees, the representatives of the treaty party, and the representatives of the Western Cherokees. 9 St. p. 871.
By article 1 lands now occupied by the Cherokee nation were secured to the whole Cherokee people. By article 2 it was provided that all differences theretofore existing between the several parties of the Cherokee nation should be settled and adjusted; that all party distinctions should cease, except so far as they should be necessary to carry out the treaty, and a general amnesty was thereby declared. Article 3 related to certain reimbursements to be made by the United States to the $ 5,000,000 fund, with which it was not properly chargeable.
'Art. 4. And whereas, it has been decided by the board of commissioners recently appointed by the president of the United States to examine and adjust the claims and difficulties existing against and betwen the Cherokee people and the United States, as well as between the Cherokees themselves, [148 U.S. 427, 446] that under the provisions of the treaty of 1828, as well as in conformity with the general policy of the United States in relation to the Indian tribes, and the Cherokee nation in particular, that that portion of the Cherokee people known as the 'Old Settlers,' or 'Western Cherokees,' had no exclusive title to the territory ceded in that treaty, but that the same was intended for the use of, and to be the home for, the whole nation, including as well that portion then east as that portion then west of the Mississippi; and whereas, the said board of commissioners further decided that, inasmuch as the territory before mentioned became the common property of the whole Cherokee nation by the operation of the treaty of 1828, the Cherokees then west of the Mississippi, by the equitable operation of the same treaty, acquired a common interest in the lands occupied by the Cherokees east of the Mississippi river, as well as in those occupied by themselves west of that river, which interest should have been provided for in the treaty of 1835, but which was not, except in so far as they, as a constituent portion of the nation, retained, in proportion to their numbers, a common interest in the country west of the Mississippi, and in the general funds of the nation; and therefore they have an equitable claim upon the United States for the value of that interest, whatever it may be: Now, in order to ascertain the value of that interest, it is agreed that the following principles shall be adopted, viz .: All the investments and expenditures which are properly chargeable upon the sums granted in the treaty of 1835, amounting in the whole to five millions six hundred thousand dollars, (which investments and expenditures are particularly enumerated in the fifteenth article of the treaty of 1835 ,) to be first deducted from said aggregate sum, thus ascertaining the residuum or amount which would, under such marshaling of accounts, be left for per capita distribution among the Cherokees emigrating under the treaty of 1835, excluding all extravagant and improper expenditures, and then allow to the Old Settlers (or Western Cherokees) a sum equal to one third part of said residuum, to be distributed per capita to each individual of said party of 'Old Settlers,' or 'Western Cherokees.' It is further agreed [148 U.S. 427, 447] that, so far as the Western Cherokees are concerned, in estimating the expense of removal and subsistence of an Eastern Cherokee, to be charged to the aggregate fund of five million six hundred thousand dollars above mentioned, the sums for removal and subsistence stipulated in the eighth article of the treaty of 1835 as commutation money in those cases in which the parties entitled to it removed themselves shall be adopted. And as it affects the settlement with the Western Cherokees, there shall be no deduction from the fund before mentioned in consideration of any payments which may hereafter be made out of said fund; and it is hereby further understood and agreed that the principle above defined shall embrace all those Cherokees west of the Mississippi who emigrated prior to the treaty of 1835.
'In the consideration of the foregoing stipulation on the part of the United States the 'Western Cherokees,' or 'Old Settlers,' hereby release and quitclaim to the United States all right, title, interest, or claim they may have to a common property in the Cherokee lands east of the Mississippi river, and to exclusive ownership to the lands ceded to them by the treaty of 1833 west of the Mississippi, including the outlet west, consenting and agreeing that the said lands, together with the eight hundred thousand acres ceded to the Cherokees by the treaty of 1835, shall be and remain the common property of the whole Cherokee people, themselves included.
'Art. 5. It is mutually agreed that the per capita allowance to be given to the 'Western Cherokees,' or 'Old Settlers,' upon the principle above stated, shall be held in trust by the government of the United States, and paid out to each individual belonging to that party or head of family, or his legal representatives. And it is further agreed that the per capita allowance to be paid as aforesaid shall not be assignable, but shall be paid directly to the persons entitled to it, or to his heirs or legal reprsentatives, by the agent of the United States authorized to make such payments.
'Art. 11. Whereas, the Cherokee delegations contend that the amount expended for the one year's subsistence, after their arrival in the west, of the Eastern Cherokees, is not properly chargeable to the treaty fund, it is hereby agreed that that question shall be submitted to the senate of the United States for its decision, which shall decide whether the subsistence shall be borne by the United States or the Cherokee funds, and, if by the Cherokees, then to say whether the subsistence shall be charged at a greater rate than thirty-three 33-100 dollars per head; and also the question whether the Cherokee nation shall be allowed interest on whatever sum may be found to be due the nation, and from what date and at what rate per annum.
The treaty was ratified by the senated August 8, 1846, after amendments to the fifth article, (which is given above as amended,) and striking out the twelfth article. The amend- [148 U.S. 427, 450] ments to the treaty by the senate were agreed to by the representatives of the several parties of Indians, August 13, 1846.
The officer thus referred to was Judge Parris, of Maine, and the record contains the report of the second comptroller and second auditor of the treasury, giving a statement of the account of the Cherokee nation of Indians, according to the principles established by the treaty. The items of charges against the Cherokee nation are given in detail and deducted from $6,647,067, the amount specified in article 9 of the treaty, being made up of the $5,000,000, the $600,000, and the $1,047,067.
'Resolved by the Senate of the United States, that the Cherokee nation of Indians are entitled to the sum of $189,422.76 for subsistence, being the difference between the amount [148 U.S. 427, 452] allowed by the act of June 12, 1838, and the amount actually paid and expended by the United States, and which excess was improperly charged to the 'treaty fund' in the report of the accounting officer of the treasury.
The committee gave their reasons for the first resolution at length. The stated that they entertained no doubt but that by a strict construction of the treaty of 1835 the expense of a year's subsistence of the Indians after their removal west was a proper charge upon the treaty fund, but they set forth a variety of considerations which justified the conclusion that the expense for subsistence was to be borne by the United States, including certain action by the secretary of war in 1838, and the language of the act of June 12, 1838, making the appropriation of $1,047, 067. By the latter, congress provided that no part of the $600,000 or of the $1,047,067 should be taken from the treaty fund. The $1,047,067 was, said the committee, 'made auxiliary to the $600,000 provided for in the third supplemental article,-a fund provided for removal and other expenditures independent of the treaty, and in full for these objects. But as respects subsistence, it was in aid of the expense for that purpose, a discharge pro tanto of the obligation of the government to subsist them, and not final satisfaction as in the case of removal. The fund proved wholly inadequate for these purposes. The entire expense of removal and subsistence amounted to $2,952,196.26, of which the sum of $972,844.78 was expended for subsistence, and of this last amount $172,316.47 was furnished to the Indians when in great destitution, upon their own urgent application, after the expiration of the one year, upon the understanding that it was to be deducted from the moneys due them under the treaty. This leaves the net sum of $800,528.31 paid for subsistence, and charged to the aggregate fund. Of this sum the United States provided by the act of 12th June, 1838, [148 U.S. 427, 453] for $611,105.55.' This left $189,422.76 to be made up in order to cover the entire subsistence.
And of this amount the committee found that only $611,105.55 had been expended for the one year's subsistence.
'(4) It has thus been conclusively shown that after the statement was made, under the report of the accounting officers of December 3, 1849, and the 'Old Settlers' were charged with the removal and subsistence of 18,026 Indians, the senate of the United States decided that the subsistence was improperly charged, and in a subsequent appropriation for the Eastern Cherokees, or 'emigrant party,' it had been refunded, and the sum of $189, 422.76, which had been charged to the treaty fund, has been declared to be an 'improper' charge, and payment thereof is assumed by the United States. The 'Old Settlers,' or Western Cherokees, are therefore entitled to one third part of the money improperly charged for the subsistence of 18,026 Indians, at $33.33 1/3 cents per head, which has been deducted from the amount due them in the act of appropriation made for their benefit September 30, 1850. There were some slight alterations made in the statement of accounts after the report of the committee was submitted, but they changed the amount very little, and are not worth noting.
The protest then concluded with objections to the number of Indians for whose removal charges had been made, and generally to the charges for improvements, ferries, depredations, and for debts and claims upon the Cherokee nation east, and other expenditures of similar character, as improperly made.
The United States acquired the reservation, improvements, and property in Arkansas referred to in article 4 of the treaty of 1828, but neither the agreement therein set forth on the part of the United States to account for and invest the proceeds thereof to the use of the Western Cherokees, nor the subsequent agreement set forth in the treaty of 1833, was ever performed. The tract of land so ceded to the United States contained 3,343.41 acres, of the value of $4,179.26.
Certain papers on file in the interior department were put in evidence, purporting to be copies of the proceedings of councils of the Western Cherokees, held in the years 1875, 1876, 1877, 1879, 1880, 1881, 1882, and 1883, at Tahlequah, Cherokee Nation. At these councils, Bryan, Wilson, and Hendricks were appointed commissioners to prosecute the claims of the Western Cherokees against the United States, and Bryan was appointed treasurer of a fund of 35 [148 U.S. 427, 457] per cent. of the moneys that might be recovered against the United States, which sum was placed at the disposal of the commissioners for the prosecution of the claim. It does not appear that these councils were composed of persons who were ascertained to be Western Cherokees in the manner prescribed in the fifth article of the treaty of 1846, nor did it appear that subsequent to the treaty the Western Cherokees had any organization or corporate existence under the laws of the United States or of the Cherokee nation. The proceedings of the council held on October 25, 1883, embodied a number of resolutions, which, in the view taken of the case, it is unnecessary should be repeated.
The record does not show that the Western Cherokees formally denied the validity of the treaty of 1835 until the immigration of the Eastern Cherokees was completed, and until after there was a disagreement as to the government that should be adopted and control the Cherokee country. The earlier immigrants, known as the 'Ridge Party,' and the great body of the Eastern Cherokees, known as the 'Ross Party,' were welcome to the country as immigrants under the existing laws. Prior to 1842 it does not appear that the Western Cherokees notified the United States that they had repudiated the action of Rogers and Smith, who signed the treaty of 1835 as delegates from the Western Cherokees. After the entry of the Eastern Cherokees, the question first at issue between them and the Western Cherokees related to the government of the country, until, in 1842, they addressed a memorial to the president, setting forth their title to 14,000, 000 acres of land, and their right to the full and exclusive enjoyment of the same, of which they alleged they had been deprived by the intrusion of the Eastern Cherokees under the authority of the United States.
No action on behalf of the Old Settlers appears to have been taken from the filing of the protest September 22, 1851, until the year 1875; and in the meetings of the Old Settlers, heretofore referred to, the validity of the several treaties with the Cherokees was recognized.
'The secretary of the interior shall investigate and report to congress what, in his opinion, would be an equitable settlement of all matters of dispute between the eastern band of Cherokee Indians (including all the Indians residing east of the Mississippi river) and the Cherokee tribe or nation west; also all matters of dispute between other bands or parts of the Cherokee nation; also all matters of dispute between any of said bands, or parts thereof, and the United States arising from or growing out of treaty stipulations or the laws of congress relating thereto; and what sum or sums of money, if any, should, in his opinion, be paid under such settlement.' 22 St. p. 328.
Account with the Whole Cherokee People. Dr. Cr.
By amount appropriated by act of July 2, 1836, for lands under first article treaty of 1835 $5,000,000 00 By amount appropriated under third article treaty 1836, by act of July 2, 1836 600,000 00 By amount erroneously charged for removal of 2,495 (should be 18,026) Indians, at $53.33 1/3 per head 961,386 66 To amount paid for improvements $1,540,572 27 To amount paid for ferries 159,572 12 To amount paid for spoliation 264,894 09 To removal and subsistence of 18,026 Indians at $53.33 1/3 per head 961,386 66 To debts, etc. 101,348 31 To additional land purchased 500,000 00 To amount invested as a permanent fund 500,880 00 ___ $4,028,653 45 $6,561,386 66 Deduct 4,028,653 45 ___ Balance due as of date June 12, 1838 $2,532,733 21 [148 U.S. 427, 459] Dr. Cr.
The principal difference between this and the prior account was in the deduction of the item of $961,386.66.
The secretary's report was accompanied by that of the commissioner of Indian affairs, going over the whole subject of the claims of the Eastern and of the Western Cherokees, with accompanying reports, and, among others, two of the senate committee on Indian affairs,-one made February 9, 1881, and another March 29, 1882; the latter being a repetition of the former. These reports considered the claim of the Western Cherokees, and announced the conclusion that the receipt by those Indians, under the act of September 30, 1850, 'does not preclude them from making their clam for any other sum that may be justly due them under a fair and proper interpretation of the treaties with them,' and that the facts necessary to determine the justness of the claim preferred by them 'consist almost, if not wholly, of public treaties, proceedings of the senate, acts of congress, and the records of the several departments of the government, all of which are preserved.' The committee were of the opinion that the [148 U.S. 427, 460] case should receive a full investigation by the courts, because such an investigation involved a judicial interpretation of the several treaties, the construction of the several acts of congress, and the examination of the settlements made and accounts stated with them under these treaties and acts of congress.
No action was taken by congress on these findings of the court of claims. On February 25, 1889, the act upon which this suit is founded was approved by the president. 25 St. p. 694. The case having come on for hearing in the court of claims, and been duly argued and submitted, an elaborate opinion was delivered by Nott, J., November 30, 1891, and on January 25, 1892, findings of fact and conclusions of law were filed by that court. On that day a second opinion by Nott, J., was given, the case having been reopened so far as to hear counsel and admit documentary evidence relating to the number of the Eastern Cherokees who were removed under the treaty of 1835, and also to hear counsel with regard to the form of the decree. 27 Ct. Cl. 1, 20, 56.
The treaty fund $5,600,000 00 Less for 800,000 acres of land $ 500,000 00 For investment in the general land fund 500,000 00 For improvements of individual Cherokees 1,540,572 27 For ferries belonging to individuals 159,572 12 For spoliations of individual property 264,894 09 For expenses of Cherokee committee 22,212 76 For removal of 16,957 Cherokees, at $20 each 339,140 00 ___ 3,326,391 24 ___ Giving as the true residuum to be divided $2,273,608 76 ___ Due to the Western Cherokees, one third of residuum $757,869 58 Less payment September 22, 1851, under the act of September 30, 1850 532,896 90 ___ Leaving as the balance due the Western Cherokees $224,972 68 [148 U.S. 427, 462] The differences between this account and that of August 8, 1850, and February 3, 1883, are that the investment of the permanent land fund was found to be $500,000 instead of $500,880. The $101,348.31 for debts and claims upon the Cherokee nation, allowed in the two previous reports, and the former findings of the court of claims, was reduced to $22,212.76 by rejecting therefrom the items of national debt, $18,062.06, and claims of United States citizens, $61,073.49. An allowance for the removal of 16,957 Cherokees at $20 each, aggregating $339,140, was made, instead of for the removal and subsistence of 18,026 Indians at $53.33 1/3 per capita, $961, 386.66, as in the report of August 8, 1850, or the cost of removal and subsistence of 2,495 Indians at $53.33 per capita, $133,058.35, as shown by the report of February 3, 1883, and by the previous findings in this regard of the court of claims. There was added also the value of the agency reservation appropriated by the United States under the treaties of 1828 and 1833, being $4,179.26. The court of claims also found as a conclusion of law that interest at the rate of 5 per cent. should be allowed on the balance of the residuum of the treaty fund still due to the Western Cherokees from June 12, 1838, to the entry of judgment, but not upon the amount of $4,179.26, the value of the land last mentioned. It was also found as a conclusion of law that the receipts given by individual Cherokees did not preclude them from recovering their just appropriation of the per capita fund within the intent of the act of February, 1889, referring their claims to the court.
From this decree both parties prayed an appeal to this court.
Subsequently the claimants moved that in preparing the record for transmission, the clerk of the court of claims be instrusted to include in the transcript 'all of the pleadings, orders, evidence, findings of fact, opinions of the court, conclusions of law, and decree, as the same appear of record.' This motion was overruled. Application was thereupon made to this court for a writ of certiorari to the court of claims to send up all of the evidence used in the trial and hearing of the case. The writ was granted, and the evidence sent up accordingly.
Sol. Gen. Aldrich and F. P. Dewees, for the United States.
The remedy in equity in cases of account is generally more complete and adequate than it is or can be at law, (1 Story, Eq. Jur. 450; Kilbourn v. Sunderland, 130 U.S. 505 , 9 Sup. Ct. Rep. 594;) and we regard the language of the act of congress as manifestly used with the intention that equity powers should be exercised in the disposition of the case. It was upon this view that we directed the certiorari to issue; and in arriving at our conclusions, while we have had the advantage of the findings of the court of claims, we have considered and determined the case for ourselves upon an examination of the entire evidence.
The prayer of the petitioners is in the alternative: First, that they be relieved from the provisions of the treaty of 1846, on the ground of duress and fraud, and that the United States be decreed and adjudged to pay them the value of two thirds of 13,610,795.24 acres of land at 62 1/2 cents per acre, being the sum of $5,671,164.72 1/2, together with the sum of $30,000 for property destroyed, and $9,179.63 1/4 for the agency reservation and improvements in Arkansas, less one third of the amount of $ 500,000 for additional lands and of $500,000 permanently invested, and the payment in 1851 of $532,896.90, leaving a balance of $4,844,113.65, with interest at the rate of 5 per cent. per annum from June 12, 1838, until paid; second, that, if petitioners be not entitled to that relief, the United States be decreed to pay them the sum of $330,756.94, under the provisions of the fourth article of the treaty of 1846, together with the before-mentioned sums of $9,179.16 1/4 and of $30,000, aggregating the amount of $369,936.10 1/4 with interest as aforesaid. [148 U.S. 427, 466] The court of claims declined to go behind the treaty of 1846, upon the ground that it was not within the province of a court, either of law or equity, to determine that a treaty or an act of congress had been procured by duress or fraud, and declare it inoperative for that reason. Fletcher v. Peck, 6 Cranch, 130; Ex parte McCardle, 7 Wall. 506, 514; People v. Draper, 15 N. Y. 545, 555, Railroad Co. v. Cooper, 33 Pa. St. 278; Wright v. Defrees, 8 Ind. 302.
And while it was conceded that congress might confer upon that court extrajudicial powers, yet the court was of opinion that this could not be held to have been done by the act authorizing the institution of this suit, since it was therein provided that whatever judgment might be rendered, whether for the complainants or defendants, might be appealed to the supreme court, whose jurisdiction, as defined by the constitution, was strictly judicial, and could neither be enlarged nor diminished by legislative authority. Gordon v. U. S., 2 Wall. 561, Taney, C. J., 117 U.S. 697 , Append.; In re Sanborn, 148 U. S. --, 13 Sup. Ct. Rep. 577.
It will be perceived that that decision is not authority for the proposition that a court may be clothed with power to annul a treaty on the ground of fraud or duress in its execution, nor does any such question arise in the case before us. There is nothing in the jurisdictional act of February 25, 1889, inconsistent with the treaty of 1846, (or any other,) and nothing to indicate that congress attempted by that act to authorize the courts to proceed in disregard thereof. Unquestionably a treaty may be modified or abrogated by an act of congress, but the power to make and unmake is essentially political, and not judicial, and the presumption is wholly inadmissible that congress sought in this instance to submit the good faith of its own action or the action of the government to judicial decision, by authorizing the stipulations in question to be overthrown upon an inquiry of the character suggested, and the act does not in the least degree justify any such inference.
The settlement of a controversy arising or growing out of these Indian treaties or the laws of congress relating thereto, and the determination of what sum, if any, might be justly due under them, certainly does not include a claim which could only be asserted by disregarding the treaties or laws, or holding them inoperative on the ground alleged.
The court of claims was, indeed, to have 'unrestricted latitude in adjusting and determining the said claim, so that the rights, legal and equitable, both of the United States and of the said Indians, may be fully considered and determined.' But this did not mean that either party was entitled to have or receive by virtue of the act anything more than each was entitled to under existing stipulations, or to bring supposed moral obligations into play for the disposal of the case. The inquiry was not to be technically limited by rules of procedure, or restrained by the distinctions between law and equity. Proceeding thus untrammeled, the court was to deduct 'all offsets, counterclaims, and deductions of any and every kind and character which should be allowed to the United States under any valid provision or provisions in said treaties and laws contained, or to which the United States may be otherwise entitled.' And therefore, if conflict existed between treaty provisions, or between any of them and subsequent acts of congress, such provisions might necessarily give way and be held invalid; but the language used did not involve a confusion of the respective powers of the departments of the government, nor furnish a basis for an external attack upon the validity of executive or legislative action.
Again, the determination of what, if anything, was justly due, was to be arrived at upon a full consideration of 'whether or not the said Indians have heretofore adjusted and settled their said claim with the United States.' That claim was the claim referred to the court, the claim which was reported upon by the secretary, the claim which arose and grew out of treaty stipulations, the claim which was preferred in the protest [148 U.S. 427, 470] of 1851, and not a claim for the loss of two thirds of 7,000,000 acres of land, and of exclusive rights in the outlet. There had been such a claim as the latter, but it had been definitely relinquished and released by the treaty.
The terms of the treaty of 1828, by which the 7,000,000 acres were guarantied to the Cherokees, while the Western Cherokees were alone being dealt with, expressed that the purpose was to provide a home for the whole Cherokee people, including those east as well as those west. By article 2 of the treaty of 1835 the conveyance of land by the treaties of 1828 and 1833 is declared to have been to the Cherokee nation of Indians, and 800, 000 acres additional was agreed to be conveyed in consideration of the sum of $500,000, that there might be no question as to there being a sufficient quantity of land for the accommodation of the whole nation on their removal west. That treaty was wholly inconsistent with the attitude subsequently assumed. The patent of December 31, 1838, ran to the Cherokee nation. There are many documents in the record indicative of the view of the Indian office that the Western Cherokees were only a contingently separate community from the Eastern body, and were subject to increase by the emigration of those east; and that they did not have, as an independent community, any ownership of the land, or rights therein, except what belonged to them in common with the whole Cherokee people. At the same time the Western Cherokees did set up the opposite contention, and prosecuted it with the greatest vigor and ability before the political departments of the government, especially during the years 1842 to 1846. Indeed, prior to 1842, they seem to have acquiesced in the treaty of 1835, and welcomed not only the treaty party, but the great body of the Eastern Cherokees, to participation with them under existing laws. The papers presented in their behalf show, as stated by counsel, the most careful preparation and noticeable ability. In a memorial bearing date June 16, 1843, their alleged grievances were set forth in extenso, and it was insisted that by the forcible removal of the Eastern Cherokee Indians, and their settlement among them, the Western Cherokees had [148 U.S. 427, 471] been, in effect, dispossessed of two thirds of their land. But in June, 1846, the Western Cherokees offered to submit their claims to a board of commissioners, to be appointed by the president and senate of the United States, which commission it was stipulated should be invested with full power to settle the matters in controversy according to the treaty stipulations. The commission was appointed, and its decision was against the claim of the Western Cherokees to the exclusive ownership of and rights in the land in question. On the 3d of August, 1846, the delegates representing the Western Cherokees declared that they did not acquiesce in the decision of the commissioners on this point, and should reassert 'their exclusive right to the country,' 'should the treaty now proposed fail from any cause;' but the treaty did not fail, and, on the contrary, was duly executed by the parties on the 6th day of the same month; and this was followed by the accounting under the treaty, the act of congress of September, 1850, and the payments made and receipted for thereunder. True, there was a protest that the receipts then given ought not to exclude these Indians from obtaining a further amount, but that protest was chiefly based upon the deduction of the cost of subsistence from the treaty fund, and asserted no claim on account of the land, nor the invalidity of the treaty. Moreover, they remained silent, so far as appers from this record, from 1846 until 1875; and when they commenced the agitation of renewed demands the grounds assigned conceded the binding force of the treaty, but questioned the payment under it as a final settlement of what was due.
Upon the facts in this record we can discover no ground for the revival of controversy by the Western Cherokees as to their ownership of or rights in the lands west of the Mississippi, and hold that any such claim in respect thereof as is put forward in the petition cannot be successfully maintained from any point of view. If any matter ever can be put at rest, that has been, and the treaty of 1846 has presented for nearly 50 years an insuperable bar to such a contention.
The treaty declared 'that the land now occupied by the Cherokee nation shall be secured to the whole Cherokee [148 U.S. 427, 472] people for their common use and benefit;' and that, whereas, it had been decided by the board of commissioners appointed to examine and adjust the claims and difficulties existing against and between the Cherokee people and the United States, as well as between the Cherokees themselves, that under the provisions of the treaty of 1828 the Western Cherokees 'had no exclusive title to the territory ceded in that treaty, but that the same was intended for the use of, and to be the home for, the whole nation, including as well that portion then east as that portion then west of the Mississippi;' and that the West Cherokees had a claim upon the United States, growing out of the equitable operation of the same treaty, as having a common interest in the lands occupied by the Cherokees east of the Mississippi river, as well as having retained a common interest 'in the general funds of the nation,'-the ascertainment of 'the value of that interest' was provided for, and the government agreed to distribute it among the Western Cherokees.
In order to arrive at the amount to be distributed per capita to the Western Cherokees, or Old Settlers, it was agreed that from the $5,600,000 the investments and expenditures properly chargeable thereupon, and enumerated in the fifteenth article of the treaty of 1835, excluding all extravagant and improper expenditures, should be deducted, and that one third of the residuum should constitute the value of their interest, and, consequently, the amount for distribution. An accounting was had accordingly, and the amount ascertained, appropriated, and paid over. [148 U.S. 427, 473] But it is argued that the object of the suit before us was to permit a relitigation of the correctness of that amount, and a determination as to whether anything more should have been paid at that time. And we are confronted by the objection, strongly urged on behalf of the United States, that by the terms of the jurisdictional act, if it be found that 'the said Indians have heretofore adjusted and settled their said claim with the United States,' such adjustment and settlement must be treated as conclusive.
We agree, as was said in the Case of Choctaw Nation, 119 U.S. 1, 29 , 7 S. Sup. Ct. Rep. 75, that where, in professed pursuance of treaties, statutes have conferred valuable benefits upon the Indians, 'which the latter have accepted, they partake of the nature of agreements; the acceptance of the benefit, coupled with the condition, implying an assent on the part of the recipient to the condition, unless that implication is rebutted by other and sufficient circumstances.' And it is also true that when a party, without force or intimidation, and with a full knowledge of all the facts in the case, accepts, on account of an unliquidated and controverted demand, a sum less than what he claims and believes to be due him, and agrees to accept that sum in full satisfaction, he will not be permitted to avoid his act on the ground of duress. U. S. v. Child, 12 Wall. 232, 244.
But we think, under all the circumstances disclosed here, that congress, being convinced that a mistake had probably been made in the accounting in a matter which the Indians from the first had called attention to, and desirous, as being the stronger party to the controversy, that that superior justice, which looks only to the substance of the right, should be done in the premises, voluntarily waived any reliance upon lapse of time or laches, and, after attempts on its own part to arrive at a satisfactory result, determined to obtain a judicial interpretation of the treaties and laws bearing upon the subject, and to be bound by judicial decision in respect of the conclusions flowing therefrom, and arrived at upon equitable principles; and that the jurisdictional act passed in effectuation of such intention left it open to the courts to [148 U.S. 427, 474] readjust the amount notwithstanding the claim might have been theretofore settled. In other words, if the adjustment and settlement were found to have been made upon an erroneous interpretation, which led to an obvious mistake, then congress designed that the mistake should be corrected. We therefore proceed to examine the account in question in accordance with what we believe to have been the intention of congress in the passage of this act.
As we have said, the investments and expenditures which were properly chargeable upon the $5,600,000 were to be deducted, and they were the investments and expenditures particularly enumerated in the fifteenth article of the treaty of 1835. That article provided for the deduction of the amounts 'actually expended for the payment for improvements, ferries, claims for spoliations, removal, subsistence, and debts and claims upon the Cherokee nation, and for an additional quantity of land, and goods for the poorer class of Cherokees, and the several sums to be invested for the general national funds provided for in the several articles of this treaty.' The national fund of $500,000 embraced the items last mentioned, and no dispute arises here as to that sum or the sums of $500,000 for the additional quantity of land, $1,540,572.27 for improvements, $159,572.12 for ferries, and $264,894.09 for spoliations. Petitioners claim, however, that no deduction should have been made for subsistence, and that the sum allowed for removal should be limited to 2,200 Indians at $20 per head; and they further insist upon an allowance of $30,000 for property destroyed, while they abandon their claim for $9,179.16 1/4 as the value of the Arkansas agency land and improvements, and concede that the sum of $ 4,179.26 therefor, as found by the court below, may be accepted as correct. The court of claims disallowed the item of $30,000, and charged for the removal of 16,957 Cherokees at $20 each, and an item for the expenses of the Cherokee committee of $22,212.76.
We concur in the rejection of the claim for $30,000, which finds its basis in a resolution of a council of the Western Cherokees of November 16, 1846, asking the government to [148 U.S. 427, 475] appropriate that sum to pay off damages and losses alleged to have been sustained by individual Indians in being compelled to leave their homes and go to the states for safety. No such claimants appear or are represented here, and the claim has no relation to per capita distribution. There is no color for its revival in this proceeding.
It was agreed by article 4 of the treaty of 1846 that, so far as the Western Cherokees were concerned, in estimating the expenses of removal and subsistence of an Eastern Cherokee to be charged to the aggregate fund, the sums for removal and subsistence stipulated in the eighth article of the treaty of 1835 as commutation money should be adopted. That commutation was placed in the eighth article at $20 per capita for removal and $33.33 for subsistence. The persons composing the treaty party voluntarily emigrated to the Indian Territory prior to 1838 to the number of 2,200, and they took with them 295 slaves of African descent. The court of claims properly considered that the expenses to be deducted could only apply to Cherokees, and therefore, that the slaves could not be included in making the deduction as between the Western Cherokees and the United States; but to the 2,200 the court added the 14,757 Eastern Cherokees, who were removed in 1838, and, rejecting any deduction for subsistence, charged the commutation price of $20 for 16,957 persons. We are satisfied from a careful examination of the evidence that the number was determined with all the accuracy possible and should not be disturbed; and, in view of the decision of the senate by the adoption September 5, 1850, of the first resolution, reported August 8, 1850, it is obvious that the expense of subsistence should not have been and should not be deducted.
The fourth article of the treaty of 1846 fixed a commutation for subsistence as well as for removal, but the eleventh article provided that whereas the Cherokee delegates contended that the amount expended for one year's subsistence was not properly chargeable to the treaty fund, it was thereby agreed that that question should be submitted to the senate for its decision, which should decide whether the expense [148 U.S. 427, 476] should be borne by the United States or the Cherokee funds; and the senate, thus made the umpire, (it having been found that the $1,047,067 appropriated by the act of June 12, 1838, did not fully cover the expense of subsistence,) resolved that the Indians were entitled to $189,422.76 for subsistence, 'being the difference between the amount allowed by the act of June 12, 1838, and the amount actually paid and expended by the United States, and which excess was improperly charged to the treaty fund in the report of the accounting officers of the treasury.' This decision was accepted, and the money appropriated to make good the award. The act of 1838 grew out of the inducements offered in promotion of the removal of the entire body, and made the appropriation in discharge of an assumed obligation to subsist the Indians, if they would remove, notwithstanding the involuntary character of that removal. Taking the acts of 1838 and 1850, with the decision of the senate, there can be no question that the United States concluded to bear, and did bear, the entire expense, so far as subsistence was concerned. The court of claims, therefore, correctly deducted the sum of $339,140 for the removal of the whole number of Cherokees at $20 per head, and declined to deduct any charge for subsistence. It was really over this item that the sharpest controversy ensued, for by the original accounting the sum of $961,383.66 had been deducted for the removal and subsistence of 18,026 Cherokees, at $53.33 1/3 per head, which was erroneous as to the number, and on account of the inclusion of the commutation of $33.33 1/3 for subsistence.
In the account stated by the accounting officers of the treasury, December 3, 1849, the sum of $101,348.31 was deducted from the fund for debts and claims upon the Cherokee nation, made up of these items: For national debts, $18,062.06; for claims of United States citizens, $61,073. 49; and for the Cherokee committee, $22,212.76. This sum of $101,348.31 was also deducted in the account stated in the report of the senate committee of August 8, 1850, in the report of the secretary of the interior of February 23, 1883, and in the findings of the court of claims under the reference in February, 1884. [148 U.S. 427, 477] The court of claims in this suit rejected the items of $18,062.06 and $ 61,073.49, because, in the opinion of the court, there was no evidence to connect these items with the fund for distribution, while it held the item of $22,212.76, for the expenses of the Cherokee committee, as properly chargeable under the twelfth article of the treaty of 1835, which provided for a committee to carry the treaty into effect. We are not persuaded that this conclusion was correct. Under the tenth article of the treaty of 1835 the United States agreed to pay the just debts and claims against the Cherokee nation held by citizens of the same, and also the just claims of citizens of the United States for services rendered to the nation, and it was stated that 'the sum of sixty thousand dollars is appropriated for this purpose.' This should be rogarded as $60,000 of the total amount, and, in our judgment, the debts and claims upon the Cherokee nation mentioned in article 15, and to be deducted under article 4 of the treaty of 1846, should be confined, so far as the Western Cherokees are concerned, to $60, 000, and that amount is justly chargeable against the fund; but we are not satisfied that the expenses of the committee authorized by the twelfth article of the treaty of 1835, which was a committee to recommend persons for the privilege of pre-emption rights and to select missionaries, as well, indeed, as to transact all business which might arise in carrying into effect the provisions of the treaty, ought to be charged in addition.
And the recovery should also include the sum of $4,179.26 for the Arkansas agency.
By the second resolution adopted by the senate, as umpire, September 5, 1850, it was decided that interest should be allowed, at the rate of 5 per centum per annum, upon the sum found due the Western Cherokees, from June 12, 1838, until paid. As before stated, our conclusion is that the sum then found due was less than should have been found by the amount of $ 212,376.94.
Under section 1091 of the Revised Statutes no interest can 'be allowed on any claim up to the time of the rendition of judgment thereon by the court of claims unless upon a contract expressly stipulating for the payment of interest;' and in Tillson v. U. S., 100 U.S. 43 , it was held that a recovery of interest was not authorized under a private act referring to the court of claims a claim founded upon a contract with the United States, which did not expressly authorize such recovery. But in this case the demand of interest formed a subject of difference while the negotiations were being carried on, the determination of which was provided for in the treaty itself. That determination was arrived at as prescribed, was accepted as valid and binding by the United States, and was carried into effect by the payment of $532,896.90, found due, and of $ 354,583.25 for interest. 9 St. p. 556.
In view of the terms of the jurisdictional act and the conclusion reached in reference to the amount due, it appears to us that the decision of the senate in respect of interest is controlling, and that, therefore, interest must be allowed from June 12, 1838, upon the balance we have heretofore indicated, but not upon the item of $4,179.26, which stands upon different ground.
The question remains as to the character in which petitioners come into court, and to whom the amount awarded should be distributed.
The 'Old Settlers,' or Western Cherokees, are not a governmental [148 U.S. 427, 479] body politic, nor have they a corporate existence, nor any capacity to act collectively. The money belongs to them as individual members of an Indian community, recognized as such by the treaty of 1846, and treated as distinct and separate from the Cherokee nation, so far as necessary to enable the government to accord them their treaty rights. They are described in the fourth article of the treaty as 'all those Cherokees west of the Mississippi, who emigrated prior to the treaty of 1835;' and they may be held to include those now living who so emigrated, together with the descendants of those who have died, the succession to be determined by the Cherokee law. The petition does not set forth their names, nor the extent of the rights and interests claimed, respectively, but purports to be brought by three persons, 'for themselves and as commissioners' of the Western Cherokees; and they alleged that the claimants 'are the remaining part of those Cherokee Indians who formed and composed the Western Cherokee nation; and that they have maintained their separate organization so far as to adjust and settle their claims against the United States.' But the evidence is quite inadequate to justify the court in treating the immediate petitioners as appointed by all the beneficiaries as their agents to receive and disburse the amount awarded.
The lands west of the Mississippi were held as communal property, not vested in the Cherokees as individuals, as tenants in common or joint tenants; but by the treaties 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 distributed per capita. The Western Cherokees were paid, under the treaty of 1846, simply as citizens of the Cherokee nation, entitled to receive the money, as having emigrated prior to 1835, or the descendants of such.
The court of claims at first decided that the decree should be in the form usually used where a suit is prosecuted by individuals for themselves and others; that is to say, that the general liability should be established, and then provision [148 U.S. 427, 480] made for the individual Old Settlers, or Western Cherokees, to come in and establish their right to share in the fund.
It was said in Smith v. Swormstedt, 16 How. 288, 302, 303, that 'the rule is well established that where the parties interested are numerous, and the suit is for an object common to them all, some of the body may maintain a bill on behalf of themselves and all the others;' but that 'in all cases where exceptions to the general rule are allowed, and a few are permitted to sue or defend on behalf of the many, by representation, care must be taken that persons are brought on the record fairly representing the interest or right involved, so that it may be fully and honestly tried.' And, notwithstanding the suggestion that these so-called 'commissioners' do not bring themselves as strictly within the rule upon this subject as they should, yet we think that they do so far represent the interests or rights involved that the case may be allowed to proceed to judgment.
The court of claims, after delivering its opinion, suspended the entry of the decree which it had indicated its intention to render, and, after argument had upon the question, modified that opinion, and held that the fifth article of the treaty of 1846 applied as to the distribution, and entered a decree accordingly. The court was quite right in holding that the amount found due should not be decreed to be received and disbursed by the three petitioners as a commission, and that it was not necessary that the decree should require the beneficiaries to come into that tribunal, and prove up against the fund. The fifth article of the treaty provided that the per capita allowance to be given to the Western Cherokees should be held in trust by the United States, and 'paid out to each individual belonging to that party, or head of family, or his legal representatives,' and 'be paid directly to the persons entitled to it, or to his heirs or legal representatives;' and that the persons entitled to it should be ascertained by a committee of five, appointed by the president of the United States, from the Western Cherokees, and an agent of the United States. The court was of opinion that the rule thus prescribed should be followed as to this balance of the amount [148 U.S. 427, 481] intended for per capita distribution, and it was in accordance with this view that the decree was finally entered.
We approve of this disposition of the matter as just and appropriate under the circumstances, and a competent exercise of judicial power. The court decides and pronounces the decree to be carried into effect as between the persons and parties who have brought the case before it for decision, and none the less so because it leaves the mere matter of distribution to be conducted in the manner and through the agencies pointed out in the treaty.
The result is that we concur substantially in the conclusions reached by the court of claims, whose laborious and painstaking examination of the case has been of great assistance in the investigation we have bestowed upon it; and in respect of the difference in the amount found we direct the decree to be modified so as to provide for the recovery of the defendants of the sum of $212,376.94 instead of the sum of $224,972.68, in full of the per capita fund provided by the fourth article of the treaty between the United States and the Western Cherokees, dated August 6, 1846, together with interest thereon at the rate of 5 per centum per annum from the 12th day of June, 1838, up to and until the modification of the decree, in addition to the sum of $4,179.26; and, as so modified, to be affirmed.
Mr. Justice JACKSON did not sit in this case or take part in its decision.

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This health reform alert summarizes the key changes to the Notice of Privacy Practices ("NPP") requirements in the revised Health Insurance Portability and Accountability Act ("HIPAA") regulations (the "Omnibus Rule") as well as what covered entities need to do to be compliant. Because many covered entities may have modified their NPPs based on the Notice of Proposed Rulemaking issued on July 14, 2010 ("NPRM"), this alert also details the similarities and differences between the NPRM and the Omnibus Rule related to NPPs. In addition, Table 1 of this alert provides a quick summary of the NPRM proposals adopted—or not adopted—by the Omnibus Rule.
As covered entities work toward compliance, they should keep in mind that the Omnibus Rule becomes effective on March 26, 2013, but the deadline for compliance is September 23, 2013.
In the NPRM, the U.S. Department of Health and Human Services ("HHS") proposed amending 45 C.F.R. § 164.520(b)(1)(ii)(E) of the HIPAA Privacy Rule to require that NPPs include information regarding certain types of uses and disclosures of protected health information ("PHI") that require an authorization under Sections 164.508(a)(2) through (a)(4). These include (1) most uses and disclosures of psychotherapy notes, (2) uses and disclosures of PHI for marketing purposes, and (3) disclosures that constitute a sale of PHI. The NPRM also proposed requiring that a NPP contain a statement that other uses and disclosures not described in the NPP will be made only with an individual's authorization.
The Omnibus Rule finalizes the proposed modifications in full. Furthermore, the preamble of the Omnibus Rule (the "Preamble") provides several clarifications in response to comments to the NPRM. First, the Preamble clarifies that a NPP need not list all situations regarding authorization. Second, a NPP does not need to include a description of a covered entity's recordkeeping practices with respect to psychotherapy notes. Third, covered entities that do not record or maintain psychotherapy notes are not required to include a statement about the authorization requirement for uses and disclosures of psychotherapy notes.
The NPRM proposed modifying 45 C.F.R. § 164.520(b)(1)(iii), which requires a covered entity to include in its NPP separate statements about certain activities if the covered entity intends to engage in any of those activities. First, the NPRM proposed requiring a health care provider that has received financial remuneration for sending individuals treatment communications to notify individuals, through its NPP, of its intent to send these communications. Moreover, the NPRM proposed that covered entities would also be required to notify individuals of their right to opt out of receiving such communications. The Omnibus Rule does not adopt these requirements regarding treatment communications. Since the Omnibus Rule treats subsidized treatment communications as marketing communications (with some exceptions), covered entities will not be required to include a statement in their NPPs about such communications and an individual's ability to opt out.
Second, the NPRM also proposed that a covered entity intending to contact an individual to raise funds must inform the individual of its intention and the individual's right to opt out of receiving such communications. The Omnibus Rule adopts these requirements pertaining to fundraising communications. However, it should be noted that, with regard to such communications, a NPP is not required to include the mechanism for individuals to opt out.
Third, pursuant to both HIPAA and the Genetic Information Nondiscrimination Act, HHS published a separate notice of proposed rulemaking on October 7, 2009. This proposed rule required health plans intending to use or disclose PHI for underwriting purposes to include a statement in their NPPs that they are prohibited from using or disclosing an individual's genetic information for such purposes. The Omnibus Rule adopts this requirement but exempts long-term care policy issuers.
The NPRM proposed to amend 45 C.F.R. § 164.520(b)(1)(iv)(A) to require inclusion of a statement in NPPs explaining that the covered entity must agree to a request to restrict disclosure of PHI to a health plan if the disclosure is for payment or health care operations and pertains to a health care item or service for which the individual has paid out of pocket in full. The Omnibus Rule adopts this proposal, but the Preamble clarifies that the requirement applies only to health care providers. The Preamble also notes that other types of covered entities may keep existing language specifying that they are not required to agree to a requested restriction.
The Omnibus Rule also requires that covered entities revise their NPPs to address other modifications made to an individual's rights, including, but not limited to, the right to receive electronic copies of health information.
With regard to new breach notification obligations under Subpart D of Part 164, the NPRM requested comment on whether the Privacy Rule should require a specific statement regarding this new legal duty.
The Omnibus Rule requires covered entities to include in their NPPs a statement of affected individuals' notification rights after a breach of unsecured PHI. The Preamble clarifies that a covered entity will meet this requirement by including a simple statement that an individual has a right to, or will receive, notifications of breaches of his or her unsecured PHI. However, the Omnibus Rule does not prescribe the specific contents of such a statement, and the Preamble notes that the statement does not have to be entity-specific or describe the types of information to be provided in the breach notification.
Interestingly, the Omnibus Rule removes the requirement that a NPP include a statement that the covered entity may contact the individual to provide appointment reminders or information about treatment alternatives or other benefits and services that may be of interest to the individual. After March 26, 2013, covered entities will no longer be required to include this statement in their NPPs, but may continue to do so if they wish.
Under the Privacy Rule, whenever there is a material change to a NPP, a covered entity must promptly revise and distribute its NPP. The Omnibus Rule confirms that the required amendments constitute material changes necessitating revision and redistribution of NPPs. Further, the Omnibus Rule provides for certain distribution requirements based on the type of covered entity.
A health plan that currently posts its NPP on its website must (1) prominently post the change or its revised NPP on its website by September 23, 2013 (the compliance date), and (2) provide the revised NPP, or information about the material change and how to obtain the revised NPP, in its next annual mailing to individuals then covered by the plan. Health plans that do not have customer service websites must provide the revised NPP, or information about the material change and how to obtain the revised NPP, to individuals covered by the plan within 60 days of the material revision.
The Omnibus Rule does not modify current requirements for health care providers to distribute NPP revisions. Therefore, when a health care provider with a direct treatment relationship with an individual revises its NPP, the provider must make the NPP available upon request on or after the effective date of the revision. Moreover, the provider must make the NPP available at the service delivery site and post the NPP in a clear and prominent location. The Preamble clarifies that a health care provider is required to give a copy of its NPP only to new patients—and not all individuals seeking treatment.
Noncompliance with the new NPP requirements could subject covered entities to government investigations, increased civil monetary penalties, resolution agreements, and complaints from patients and beneficiaries. As the Omnibus Rule affects individual rights, covered entities should be cognizant that failure to comply with the NPP requirements may be highly visible by patients and beneficiaries and can result in greater scrutiny by the HHS Office of Civil Rights, the agency with enforcement authority under HIPAA. Therefore, covered entities should make sure to evaluate the content and distribution practices of their NPPs and determine if any changes are necessary to comply with the Omnibus Rule.
Table 1 — Summary of Key Changes to NPP Requirements: Which NPRM Proposals Were Adopted (or Not Adopted) by the Omnibus Rule?
Uses and Disclosures of PHI Requiring Authorization — NPPs must include information regarding certain types of uses and disclosures of PHI that require an authorization.
Treatment Communications — A health care provider that has received financial remuneration for sending individuals treatment communications must notify individuals, through its NPP, of its intent to send these communications. Covered entities must notify individuals of their right to opt out of receiving such communications.
Fundraising — A covered entity that intends to contact an individual to raise funds must inform the individual of its intention and the individual's right to opt out of receiving such communications.
Use or Disclose of PHI for Underwriting Purposes — Health plans intending to use or disclose PHI for underwriting purposes must include a statement in their NPPs that they are prohibited from using or disclosing PHI that is an individual's genetic information for such purposes.
Adopted, but long-term care policy issuers are exempted.
Restrictions on Disclosure of PHI to Health Plan — NPPs must have a statement explaining that the covered entity must agree to a request to restrict disclosure of PHI to a health plan if the disclosure is for payment or health care operations and pertains to a health care item or service for which the individual has paid out of pocket in full.
Breach Notification Obligations — The NPRM requested comment on whether the Privacy Rule should require a specific statement regarding new breach notification obligations.
Covered entities must include a statement of affected individuals' notification rights after a breach of unsecured PHI.
Appointment Reminders — NPPs must include a statement that the covered entity may contact the individual to provide appointment reminders or information about alternatives.
 Under 45 C.F.R. § 164.520, most covered entities must have and distribute a NPP describing (1) the uses and disclosures of protected health information that a covered entity may make, (2) the covered entity's legal duties and privacy practices with respect to protected health information, and (3) the individual's rights concerning protected health information.
 Modifications to the HIPAA Privacy, Security, Enforcement, and Breach Notification Rules under the Health Information Technology for Economic and Clinical Health Act and the Genetic Information Nondiscrimination Act; Other Modifications to the HIPAA Rules; Department of Health and Human Services, Office of the Secretary (45 C.F.R. Parts 160 and 164), 78 Fed. Reg. 5566 (Jan. 25, 2013).
 For information on the Omnibus Rule's other requirements, see the following Epstein Becker Green health reform alerts: Overview of Modifications to the HIPAA Privacy, Security, and Enforcement Rules, Jan. 20, 2013, /publications/health-reform-overview-of-modifications-to-the-hipaa-privacy-security-and-enforcement-rules/; Four Key Areas of the New HIPAA Privacy Regulations, Feb. 1, 2013, /publications/health-reform-four-key-areas-of-the-new-hipaa-privacy-regulations/; and Key Compliance Actions for the New HIPAA Privacy Regulations, Feb. 19, 2013, /publications/health-reform-key-compliance-actions-for-the-new-hipaa-privacy-regulations/.
 75 Fed. Reg. 40868 (July 14, 2010).
 42 U.S.C. 2000ff, et seq.
 78 Fed. Reg. 5566, 5624. See also 45 C.F.R. § 164.522(a)(1)(ii).
 See 45 C.F.R. § 164.520(b)(1)(iv)(C); 45 C.F.R. § 164.524(c)(2)(ii).
 78 Fed. Reg. 5566, 5624-25.
 78 Fed. Reg. 5566, 5625.


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April 9, 1974. Rehearing Denied May 7, 1974.
Appeal from the Jefferson County Circuit Court, Joseph J. Jasper, J.
Josh Mullins, Jr., Larry Halcomb, G. William Noble, Birmingham, for appellant.
Where, after being selected and accepted by both parties, a juror was permitted to leave the court and another juror was selected in his place, without the consent of the defendant, this was error. Walker v. Elrod, 284 Ala. 32, 221 So.2d 391; Code of Alabama, 1940, Recompiled 1958, Title 30, Section 98.
William J. Baxley, Atty. Gen. and Don C. Dickert, Sp. Asst. Atty. Gen., for the State.
A juror may be discharged whenever sickness or any other cause in the opinion of the court renders the juror incapable of performing his or her duty as a juror and another duly selected juror empanelled. Code of Alabama 1940, Recompiled 1958, Title 30, Section 98. A reviewable question is not presented by an exception to the court's omission or failure to charge on a legal proposition, but a party's remedy under such circumstances is to request a written instruction. Birge v. State, 44 Ala. App. 226, 206 So.2d 894; Wright v. State, 40 Ala. App. 263, 111 So.2d 588; Patterson v. State, 37 Ala. App. 161, 66 So.2d 191.
The Grand Jury of Jefferson County, Alabama, at its April 1972 Term, did return three indictments against the appellant, Henry Ford Winstead. The indictment in Case No. 25056 charged the appellant with assault with intent to murder one Howard Vinson. The indictment in Case No. 25057 charged the appellant with the first degree murder of one Allen Samuel Vinson. The indictment in Case No. 25058 charged the appellant with the first degree murder of Bobby Ray Bice.
Prior to trial the three cases were consolidated for trial by agreement between the State of Alabama, the three defense attorneys and the appellant. The Jury returned three separate verdicts and found the appellant guilty of assault with intent to murder in Case No. 25056, and the trial court in its judgment fixed punishment at twenty years imprisonment. The jury found the appellant guilty of murder in the second degree in Case No. 25057 and fixed punishment at twenty years imprisonment. The trial court entered its judgment, setting sentence accordingly. The Jury also found the appellant guilty of murder in the second degree in Case No. 25058 and fixed punishment at twenty years imprisonment. The trial court then entered its judgment, setting punishment at twenty years imprisonment in this case. The appellant's motion for new trial was overruled.
The two homicides and the assault all arose out of an incident which occurred on February 18, 1972, at a place known as the "Tiki Lounge," formerly known as the "Hole in the Wall," which was located at 1924 Vanderbilt Road in the Tarrant City section of Jefferson County, Alabama.
According to John Stallings, five men, Allen Vinson and his brother, Howard Vinson, Virgil Bice and his son, Bobby Ray Bice, together with Stallings, entered the "Tiki Lounge" between 6:00 and 6:30 on the evening in question. They were there shooting pool and drinking beer for several hours when an argument began between Howard Vinson and one George Evans, the owner-bartender. Stallings stated that he took a swing at Evans, and that Evans ducked and went behind the bar, stating that he was going to get his gun. Stallings stated that Bobby Bice and Henry Winstead, the appellant, began fighting, and he saw Bice hit the appellant with his fist; that people, some twenty-five to thirty in number, within the lounge began to leave. At this point, according to testimony of several witnesses, Evans took his pistol and fired a shot into the ceiling and told these five men, Stallings, the two Bices and the two Vinsons, to leave.
Stallings stated that none of the five men were armed with weapons of any kind. The men started outside when Bobby Bice returned to the lounge and, according to the appellant, Bice was running toward him with something in his hand. At this point the appellant grabbed the pistol from the pocket of the bartender, Evans, and fired once at Bice. Bice fell, and two of his group then returned and carried him outside.
The appellant testified that he sat at the bar for a few minutes and then went toward the front door of the lounge. He stated that he could see Allen Vinson in a parked car, and he appeared to be leaning down; that he, Winstead, "just shot into the window to get them to stop." Allen Vinson was found dead behind the steering wheel, and Howard Vinson was wounded with two bullets in his stomach.
In his own testimony, the appellant stated that he had been struck across the face with a pool cue and was rendered unconscious for a time. As he was coming to and wiping the blood from his face, he saw Bobby Bice coming toward him, and at that point he grabbed the pistol from Evans' pocket and fired. He stated that, following the affray, he, the appellant, was taken to his home and there left the pistol in question before being taken to the hospital for treatment. Subsequently, his wife turned the pistol over to two police detectives.
"THE COURT: Ladies and gentlemen, before I have you retire, let me suggest to you that the first order of business when you go back to the jury room should be to select one of your number as foreman and let that person conduct the proceedings for you.
"Before I send you back, I know it has been a trying time for each and every one of you. You have been quite uncomfortable. I know you haven't rested well, so let me go down the line.
"Mrs. Nash, are you mentally and physically able to continue this case?
"THE COURT: Mrs. Stalcup, are you mentally and physically able to continue with this case?
"THE JUROR: Yes, but I don't think so emotionally.
"THE COURT: I can't hear you, please, ma'am.
"THE JUROR: I said yes, but I don't think so emotionally.
"THE COURT: Are you having a problem, please, ma'am?
"THE COURT: Is it affecting you emotionally, mentally and physically now? She's nodding her head in the affirmative. This has to go in the record, Mrs. Stalcup. Do you feel you cannot continue with the case? She is nodding in the affirmative. I will come back to you in just a minute.
"Mrs. Poe, are you mentally and physically able to continue with this case?
"THE COURT: Mrs. Stalcup, we have to be very careful about this. Do you feel that you are becoming physically ill at this time due to the emotional and mental strain upon you?
"THE JUROR: I think I will be.
"THE COURT: You will be?
"THE COURT: In a short time, she said. Do you feel — and you are the only one who knows, ma'am. I must go over this. I'm not trying to pick on you. I'm not trying to embarrass you but I have to be very careful.
"Do you feel if you commence deliberation in each one of these cases you could not continue with you deliberation due to emotional — she said right, she could not.
"THE COURT: Wait a minute. I haven't gotten to that point. Gentlemen, in view of the statements made by Mrs. Stalcup that she is not physically, mentally or emotionally able to continue with this case and, more specifically, that she cannot deliberate on these cases due to her physical, mental and emotional problems, is there any objection in moving Mrs. Hodges, who's the alternate, into the place of Mrs. Stalcup?
"MR. RUSSELL: No objection for the State, Your Honor.
"MR. NOBLE: I wonder if we may approach the Bench, Your Honor?
"(Whereupon, there ensued an off-the-record discussion, inaudible to the court reporter.)"
" When alternate juror takes place of principal juror. — The court may order an alternate juror to take the place of a principal juror only when a principal juror, prior to the retirement of the jury to consider its verdict, is excused by the court, in the exercise of its sound discretion, from further service by reason of some mental or physical ailment in such principal juror or his confrontation with some emergency, rendering him unable to perform his duties satisfactorily."
Counsel submits that the trial court abused its discretion in excusing Mrs. Stalcup and replacing her with Mrs. Hodges, the alternate juror. We do not agree.
It is clear from reading the record, where the trial judge was interrogating Mrs. Stalcup, that she was experiencing some type of illness, and was not malingering. Under this situation, we cannot say that the trial judge abused his discretion in excusing the principal juror, Mrs. Stalcup, and replacing her with the alternate juror, Mrs. Hodges. Such action was proper under the above cited statute. See also Annotation, 84 A.L.R.2d 1288, at 1294; and Yarbrough v. State, 105 Ala. 43, 16 So. 758.
"MR. MULLINS: That is our exception we wish to make, Your Honor."
The appellant contends that the trial court erred in refusing to instruct the jury as to the appellant's theory of self-defense in the two homicide cases.
". . . Under the factual theory of the defense the defendant was not under the duty to retreat and exception to the oral charge was made because of the failure of the court to charge on the law as it is claimed to relate to the theory of the defense.
"In the instant case it is sufficient to say that when the oral charge is not as full and instructive as defendant's counsel desired his remedy is to request written charges which elucidate and explain the defendant's theory of the case. . . ."
We have carefully examined the written charges and find that appellant's counsel failed to tender a written instruction covering the alleged omitted principle. Matters of this kind cannot be raised by mere exception to the oral charge. Davis v. State, 246 Ala. 101, 19 So.2d 358; Lovejoy v. State, 33 Ala. App. 414, 34 So.2d 692. Rather, counsel must submit written instructions covering the omitted principle in order to preserve the alleged error for appellate review. Waller v. State, 35 Ala. App. 511, 49 So.2d 232, and authorities therein cited.
We have carefully examined this entire record, as is our duty under Title 15, Section 389, Code of Alabama 1940, including all rulings of the trial court, and find same to be free from error.

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Jong-Seon No, Hong-Yeop Song, Tor Helleseth and P. Vijay Kumar (Editors), Mathematical properties of Sequences and other Combinatorial Structures, Kluwer Academic Publishers, 2003.
T. Helleseth, P. V. Kumar and K. Yang, (Editors) Sequences and Their Applications – SETA ’01, Proc. of SETA ’01, Springer, 2002.
A. Pott, P. V. Kumar, T. Helleseth and D. Jungnickel, (Editors) Difference sets, sequences and their correlation properties, Nato Science Series, Series C: vol. 542, Kluwer academic press, 1999.
T. Helleseth and P. V. Kumar, “Pseudonoise Sequences”, chapter in upcoming 3rd edition of the Mobile Communications Handbook, edited by Jerry D. Gibson (CRC and IEEE Press), 2012 (planned).
G. Garg, P. V. Kumar and T. Helleseth, “Low-Correlation Sequences,’ invited chapter in Advances in Wireless Communications, (Eds. V. Tarokh), Springer, 2009.
P. V. Kumar, M. Win, H-F. Lu, C. Georghiades, “Error-Control Coding Techniques and Applications,” invited chapter in the handbook, Optical Fiber Telecommunications IV, edited by Ivan P. Kaminow and Tingye Li, Spring 2002.
T. Helleseth and P. V. Kumar, “Sequences with Low Correlation”, chapter in Handbook of Coding Theory, edited by V. Pless and C. Huffman, Elsevier Science Publishers, 1998.
T. Helleseth and P. V. Kumar, “Pseudonoise Sequences”, chapter in Mobile Communications Handbook, edited by Jerry D. Gibson (CRC and IEEE Press), 1996, also reproduced in Communications Handbook, edited by Jerry D. Gibson (CRC and IEEE Press), 1997.
P. V. Kumar “Error-Correcting Codes”, chapter in Space Communication and Nuclear Scintillation, edited by Nirode Mohanty, van Nostrand Rheinhold, 1990.
Algebraic Function Fields and Codes, by Henning Stichtenoth, Springer, 1991, IEEE Transactions on Information Theory, March 1996.
Error Control Coding: Fundamentals and Applications, by Shu Lin and Daniel J. Costello, Jr., by P.V. Kumar, IEEE Communications Magazine, vol. 21, no. 6, pp. 48-49, September 1983.

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