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[Senate Doc. 512, vol. 245, page 933]

War Department, 
Office Indian Affairs, October 10, 1832

Gentlemen,

I have the honor to acknowledge the receipt of your several letters of the 22d of August and 7th of September, and to communicate the following answers to your various interrogatories.

A white man, who, before the date of the late treaty, had married a Creek woman, and had an Indian family, and resided in the Creek Nation, must under the construction of the treaty, be considered the head of an Indian family; and, as such, is entitled to a section or half section of land, guarantied by the treaty to heads of families of certain descriptions. His marriage with a Creek woman, and his residence in that nation, constitute him one of their tribe. He had become incorporated with the, was amenable to their laws, and eligible as one of their principal chiefs; and, if so elected, might, as such chief, have been entitled to a section of land.

The chiefs and warrior's, or their children, who resided in the nation, at the time of the late treaty, and who received reservations under the treaty at Fort Jackson, are entitled to reservations.

By the treaty of Fort Jackson, those chiefs and warriors, who, in the late unprovoked and inhuman war waged by the Creeks  against the United States, had remained friendly to this country, and taken an active part against their own countrymen, were entitled to certain reservations, which should inure to them and their descendants.

This benefit or reward was bestowed upon them for their services and fidelity to the United States; they and their descendants have continued to occupy the same. There has been no voluntary abandonment.  They ought not, by an act of their nation with United States, and which they could not prevent, to be dispossessed of these reservations. If they should, their fidelity to this country would place them in worse plight than those who took up arms against it. The good faith of this Government demands protection and indemnity for them, so far as the present state of things, and existing relations with their nation will allow. These reservations, thus secured to them as a reward for their services and fidelity to the United States, must be continued to them.

Those Creeks who removed to Arkansas, in 1826, 1827, and have since returned, are not entitled to reservations.

There was a fair and full agreement with them. There was an exchange of land with them, their improvements were liberally paid for, and the Government defrayed the expense of their removal; subsisted them for one year after their transportation, and paid them a bounty for going. The Government fulfilled all its obligations.  They went, and there they should have remained. They have no right by their return to subject the Government to an additional expense. If one had the right to return, and thereby to acquire equal rights with those who never removed, then had they all the same right to return, and the Government would in vain have paid them a bounty for going, and have incurred the expense of their removal and subsistence. 

An Indian having several wives, living in different houses, and having inmates under their control, must be considered as the head of their several families, and entitled on their account to only one reservation.

The wife, thus living separately from her husband, and having her children, or other inmates living with her, is not the head of a family so as to entitle her to a reservation. The husband is the head of each family, though living separately, in the same manner as if all the families were congregated under one roof, and constituted one family. An Indian woman who has been married, and has her children, or others, residing with her in her house, cannot be considered the head of a family so as to entitle her to a reservation, unless she be a widow, or is duly separated from her husband, and entirely free from his control.

Indians who had no family at the time of the treaty, and have married since, are not entitled to reservations. In the construction of the treaty reference must be had to the state of things as they then actually were, and not as to what they might be at any time afterwards.  An Indian, whether of full or half blood, who has a female slave living with him as his wife, is the head of a family, and entitled to a reservation. 

An Indian, who has been forcibly expelled from his home, if he be the lawful head of his family, will, notwithstanding the violence done him, be entitled to a reservation; otherwise commissioners would sanction injustice, and permit a wrongdoer to take advantage of his own wrong.

With respect to Indian claims for spoliation, provided for in the treaty of Fort Jackson, and to which you have adverted, I have only to observe, that if just, it is obligatory on the Government to satisfy them. Its obligation extends no further than to discharge the demands. If the claimants choose to pay their agent an extravagant sum, they have the right; but so far as the power of the department can save them from extortion and imposition, it shall be exerted in their behalf.

In reply to the query submitted by Mr. Abbott, in his letter of the 29th ultimo, I have to observe, that although not required for any purpose under the treaty, it will be well for the commissioners to enter, in a ,separate column, the number of slaves in each family. 

I have, & c.,
Elbert Herring

Messrs.
E. Parsons,
B. S. Parsons,
John Crowell,
Commissioners, & c.