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# In re claim of Harvey M. Dickson, William T. Mason, the Dickson-Mason lumber company, and D.L. Boyd, against the United States online

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99, IN RE CLAIM OF HARVEY M. DICKSON, WILLIAM
C 5 U 4 T. MASON; THE I)ICKSOi>( - MASON LUMBER
■""^ ' COMPANY, AND D. L. BOYD, AGAINST

THE UNITED STATES

EVIDENCE BEFORE SUBCOMMITTEE NO. li, OF THE COMMITTEE ON
CLAIMS, OF THE HOCSE OF REPRESENTATIVES

ON HOUSE BILL 10749

SIXTIETH CONGRESS, FIRST SESSION

FOR THE RELIEF OF H. M. DICKSON, WILLIAM

T. MASON, THE DICKSON-MASON LUMBER

COMPANY, AND D. L. BOYD

February 28 and 29, 1908

MEMORIAL OF THE CLAIMANTS, STATEMENT RELATING TO

THE HISTORY OF THE NORTH CAROLINA CHEROKEES,

EVIDENCE AND AFFIDAVITS OF WITNESSES

AND CLAIMANTS, WITH EXHIBITS

Subcommittee No. 6: Messrs. KITCHIN, FULTON, and MILLER

WASHINGTON
GOVERNMENT PRINTING OFFICE

lit 8

Qass b Q^ ^

IN RE CLAIM OF HARVEY M. DICKSON, WILLIAM
T. MASON, THE DICKSON MASON LUMBER

COMPANY, AND D. L. BOYD, AGAINST '^v^
THE UNITED STATES

EVIDENCE BEFORE SUBCOMMITTEE NO. (J, OF THE COMMITTEE
CLAIMS, OF THE^ HOUSE OF REPRESENTATIVES

ON HOUSE BILL 10749

SIXTIETH CONGRESS, FIRST SESSION

FOR THE RELIEF OF H. M. DICKSON, WILLIAM

T. MASON, THE DICKSON-MASON LUMBER

COMPANY, AND D. L. BOYD

Februaky 28 AND 29, 1908

MEMORIAL OF THE CLAIMANTS, STATEMENT RELATING TO

THE HISTORY OF THE NORTH CAROLINA CHER0KEE8,

EVIDENCE AND AFFIDAVITS OF WITNESSES

AND CLAIMANTS, WITH EXHIBITS,

Subcommittee No. 6: Messrs. KITCHIN, FULTON, and MILLER

WASHINGTON
GOVERNMENT PRINTING OFFICE

1908

mp:mbers of committee on claims.

JAMES M. MILLER, Kansas, Chairman.
CHARLES Q. TIRRELL, Massachusetts. HENRY M. GOLDFOGLE, New York

JOSEPH HOWELL, Utah. CLAUDE KITCHIN, North Carolina.

WILLIAM H. GRAHAM, Peiuisylvania. EZEKIEL S. CANDLER, Jr.

GEORGE E. WALDO, New York. DORSEY W. SlIACKLEFORD, Missouri.

GRANT E. MOUSER, Ohio. JAMES O. PATTERSON, South CaroUna.

GEORGE L. LILLEY, Connecticut. JOHN A. M. ADAIR, Indiana.

CHARLES A. LINDBERGH, Minnesota. ELMER L. FULTON, Oklahoma.

WILLIS C. HAWLEY, Oregon.

A. P. MYERS, Clerk.

D.OFDk
WAR 27 1908

[H. R. 10749, Sixtieth Congress, first session.]

A BILL For the reliefof H. M. Dickson, William T. Mason, the Dickson-Mason Lumber Company,
and D. L. Boyd.

Be it enacted by the Senate and House of Representatives of the United States of America
in Congress assembled, That the Secretary of the Treasury of the United States of
America be, and he is hereby, directed to pay, out of any money in the Treasury not
otherwise appropriated, the sum of twenty-seven thousand eight hundred and seventy-
three dollars and fifty-five cents to H. M. Dickson, William T. Mason, and the Dick-
son-Mason Lumber Comi)any, in satisfaction for claim against the United States for
damages sustained on account of a certain injunction suit brought against said H. M.
Dickson, William T. Mason, and Dickson-Mason Lumber Company, and D. L. Boyd
by the United States in the United States circuit court at Asheville, North Carolina.

DICKSON-MASON LUMBER CO. ET AL. VS. THE UNITED STATES.

The three hearings in this matter were held February 2S and 29,
1908, before subcommittee No. 6 of the Committee on Claims, House
of Representatives.

The Memorial.

The undersigned, citizehs and residents of the State of North Caro-
lina, respectfully petition and show unto the Congress of the United
States as follows: •

The Eastern band of Cherokee Indians, a remnant of the Cherokee
Nation of Indians, have for many years owmed and occupied and do
now own and occuj)y large tracts of land in Jackson, Swain, Cherokee,
and Graham counties, N. C, a considerable portion of which consists
of wild mountain timber lands.

These Indian lands are known as the ''Qualla boundary," and
within the Qualla boundary there is a large tract of land belonging to
the Indians, containing about 30,000 acres, and which is well known
as the Cathcart tract.

In September, 1893, your petitioner D. L. Boyd bought the tim-
ber trees of certain sizes on the Cathcart tract from the Eastern
band of Cherokee Indians at an agreed price, and the Eastern band
of Cherokee Indians, purporting to act as a corporation of the State
of North Carolina b}^ virtue of chapter 211 of the Private Laws of
1889, attempted to make your petitioner D. L. Boyd a conveyance
of said timber trees.

Your petitioner Boyd accepted said conveyance of said corpora-
tion in good faith and relying absolutely upon its validity, though
he well knew at the time that it had never received the sanction
of the Interior Department of the United States nor of the Indian
Office nor of the President, conveyed or attempted to convey all
his interest in said timber trees to his copetitioners, Ilarvey M.
Dickson and W. T. ]\Iason, and paid to the Eastern band of Chero-
kee Indians the sum in cash agreed to be paid and in all other
respects proceeded to carry out in good faith liis contract with said
Indian band, regarding and treating them as a corporation under
the laws of the State of North CaroHna and individually and col-
lectively as citizens of said State and fully competent and quali-
fied to "make contracts with respect to their property to the same
counsel learned in the law that the individual members of this
band of Indians were citizens of the State and not tribal Indians
over whom the United States Government' had jurisdiction and con-

6 RELIEF OF H. M. DICKSON ET AL.

trol. Acting in good faith on the hke advice and behef, your peti-
tioners Dickson and Mason bought said timber trees of petitioner
Boyd and proceeded to pay large sums of money on account of the
purchase price and in other respects to carry out the terms of the
Boyd contract and conveyance, subject to wliich they had bought.
Your petitioners Dickson and Mason bought said timber trees for
the bona fide purpose of entering upon the lands and felling the tim-
ber trees and manufacturing same into lumber for the markets of the
ernment held certain funds belonging to the Eastern band of Chero-
kee Indians and maintained a school for the benefit of the Indians
at a place called Yellow Hill in the Qualla boundary; that the super-
intendent of said school was provided and appointed by the United
States Government; and that because of this mterest on the part of
the Government there was some likelihood of interference on its part
in case your petitioners entered upon said lands for the purpose of
removing the timber above described. Not wishing to incur the
displeasure of the United States Government nor to invite litigation
Eastern band of Cherokee Indians were citizens of the State of North
Carolina and fully competent to make contracts with respect to their
property as other citizens, made an attempt to have the Secretary
of Interior approve the contract between your petitioner Boyd and
the Eastern band of Cherokee Indians upon the ground that the
contract was fair, free from fraud, and to the advantage of the Indians
as well as to the purchasers, but tliis attempt was unsuccessful.
Your petitioners verily believe, and allege, on information and belief,
that said contract would have been approved b}^ the Interior Depart-
ment at this time had the officials thereof been fully cognizant of
the facts of the case. Your petitioners believe, however, that said
officials were misled in the matter by the misrepresentations of
parties who were at the time interested in the matter adversely to
your petitioners and who, by reason of a close relation with the
Interior Department, were more influential with the officials thereof
than were your petitioners or their friends.

This adverse action by the Interior Department upon the applica-
tion of your petitioners for the approval of the Bo}^! contract raised
an issue that liad to be met and settled and for which your petitioners
do not feel that they were in any wise responsible beyond the mere
said only after being advised by counsel that the Indians could sell
settlement of the issue thus raised, put a few men into the ])()undary
of land containing the timber aforementioned and, in a modest way
and with a prudent regard to the interests of all concerned so that no
unnecessary damages might be inflicted or suffered by any party to
the controversy, began to fell trees and to cut tl\em into logs suitable
for manufacture into lumber. Your petitioners, with the same pru-
dent regard to the interests of all concerned, forthwith acquainted the
agents of the United States Government with their acts and doings in
the premises, to the end that the Government might promptly take
such action as might be deemed proper to protect its own and the
interests of its so-called wards, the Eastern Cherokees.

RELIEF OF H. M. DICKSON ET AL. 7

This anticipatetl action was some time thereafter taken hv the
Government and a suit instituted against your petitioners in wliich
the Government sought an injunction perpetually restraining them
from entering upon the boundary containing said timber or irom in
any manner interfering with or removino same from said boundary.
Your petitioners were making ready to defend said suit and eouhl have
done so at tliat time without any great damage, because tlieir expend-
itures were then small in anticipation of action on the part of the
Government; but the United States district attorney for tlie western
district of North Carolina at the next succeeding term of the United
States circuit court at Asheville, N. C, acting, as your petitioners are
reliably informed and believe and aver, under instructions from the
Department of Justice at Washington, and particularly from the then
Attorney-General of the United States, Hon. Richard Olney, came
into court and voluntarily took a nonsuit in said cause. The purchase
of the timber in the Cathcart tract by W. T. Mason and Ilarvey M.
Dickson (who afterwards formed the Dickson-Mason lAunber Com-
pany for its development, and to which corporation said Mason and
Dickson, in turn, subsequently conveyed their interests) was made
about December 23, 1893. Practically nothing was done by them
toward the development of the property until after the latter part of
November, 1894, when the nonsuit hereinbefore mentioned was
entered or taken by the United vStates Government in the said suit
against these petitioners as hereinbefore descril)e(l.

The action of the Government in taking a nonsuit in said cause, as
abandoned its contention that the Eastern Band of Cherokees were
tribal Indians and incompetent to make contracts with respect to
their property except by authority of the United States Government.
This belief became conviction when your petitioners le'arned of a
letter dated October 22, 1894, addressed by the Attorney-General of
the United States to the Secretary of the Interior, in wliich the
Attorney-General expressed the opinion that the United States
GoA^ernment had no authority to interfere in any way with the
Cherokee Indians of North Carolina any more than with other citi-
zens of said State, and that it was no part of the duty of the United
States to maintain the above-mentioned injunction suit against these
petitioners to restrain them from entering upon and removing timber
from the Cathcart boundary under the Boyd contract.

learned of this opinion of the Attorney-General of the United States,
your petitioners Mason, Dickson, and the Dickson-Mason Lumber
Company commenced operations upon a large scale for the cutting of
the timber from the Cathcart tract and for the removal and marketing
of the lumber manufactured therefrom.

Said petitioners Mason, Dickson, and the Dickson-Mason Lumber
Company in the course of the development of said property, built
20,000 feet capacity per da}^, and other machinery; they spent large
sums of money in felling timber trees, to an amount alx.ut 1,500,000
feet of the very best quality, and in many other ways said ])(>titioners
last above mentioned spent other large sums of money in nreparntions
to develop said timber pro|)erty iip^n a large scale; said petitioners

8 RELIEF OF H. M. DICKSON ET AL.

all the wliile relying not upon the strength of their title but also upon
the purpose of nonintervention on the part of the National Govern-
ment not only declared in the opinion of the United vStates Attorney-
General, but also indicated very clearly in the failure to prosecute the
suit for an injunction against your petitioners and the taking of a
nonsuit therein, as aforesaid.

Your petitioners Mason, Dickson, and the Dickson-Mason Lumber
Company thereafter continued to make their preparations for the
development of the property and in tliis behalf to expend large sums
of money as hereinbefore and hereinafter more specifically detailed
until the 8th day of March, 1895, when the United States Government
served another injunction upon them of like purport and effect and
based upon like grounds as the injunction first hereinbefore mentioned.

This injunction at once stopped all the operations of the Dickson-
Mason Lumber Company, to which corporation Mason and Dickson
had at that time conveyed all their interest and property in said
Cathcart timber. The bill upon whicli said last injunction was
issued contained allegations of fi'aud and unfair dealing with the
Eastern band of Cherokees on the part of your petitioners, it being
charged that the Indians through their ignorance and want of business
knowledge were overreached in said transaction. It was also
charged in said bill that the Boyd contract for said timber was
"most vmjust and iniquitous itself, and doubly so in respect to the
ignorance of the council" (meaning Indian council) "and the influ-

Your petitioners in due course of time fully answered the bill of
the United States praying for the injunction as above set forth, and in
due course the cause came on for hearing before the judge of the
United States circuit court at Asheville, N. C. The answers of your
petitioners denied all charges of fraud, and contended that the Indians
of the Eastern band of Cherokee Indians were citizens of the State of
North Carolina, and in no sense tribal Indians under the control and
care of the United States Government. And thereupon your peti-
tioners moved to dismiss the bill, for that it appeared upon its face
that the controversy was one between citizens of the State of North
Carolina and over which the Federal courts had no jurisdiction.

upon the question of jurisdiction, Judge Simonton holding that the
ship of the United States, although they had ceased to be tribal In-
dians. Says Judge Simonton in his opinion :

But the Indians (North Carolina Cherokees) held these lands to no such purpose.
Their realty can be alienated, but the contract is reviewable by the Government for
one purpose only — to protect them from fraud or wrong.

Judge Simonton in a supplemental decree said in this connection:

But this conclusion does not dispose of the case. The United States having come
into this jurisdiction and having invoked the aid of the court, stands as any other
suitor, and the defendants who have been impleaded by the United States have the
same rights to have their defenses examined as they would have in the case of any
other suitor. The answers and defenses set up to the bill of the United States raise
issues of fact important to the defendants and to the i^ublic. These facts should be
investigated and their truth or falsity established.

Accordingly the judge proceeded to investigate the issue of fraud

RELIEF OF H. M. DICKSON ET AL. 9

master in equity, Hon. R. M. Douglas, now on the supreme court
of North Carohna. His report in full upon. this point was as follows:

Report-of Standing Master.

In the circuit court of the United States for the western district of North Carolina,
at Asheville, fourth circuit. In equity.

The United States of America et al. v. D. L. Boyd et al., Defendants.

REPORT OF standing MASTER.

To the honorable the judges of the circuit court:

The undersigned, standing master in chancery, respectfully reports:

That this cause having been referred to me by a decretal order filed on the 14th
day of August, 1895, I proceeded, after due notice and upon agreement of parties,
to execute the said reference at Waynesville, N. C, on the 17th day of September,
1895, when and where all parties were present or represented by counsel. The agreed
facts and testimony then and there taken down by me are herewith filed. From
said facts and testimony I find as facts:

First. That the sum of $15,000 is and was a fair and adequate price for the timber on the Cathcart tract belonging to the Indians and described in the deed of the East- ern band of Cherokee Indians to the defendant D. L. Boyd. Second. That there was no fraud or unfair dealing, in the making of said contract between the said Indians and the said Boyd. It appears in evidence that "By pre\dous contract with the Eastern Band of Cher- okee Indians, H. G. Ewart was to receive 20 per cent of the amount realized from the timber, and that he recovered judgment in "the superior court of Henderson County, N. C, for$3,000; that Ewarts' contract was made October, 1891, and Boyd's
contract with Indians September 28, 1893, and that the sum of $1,000 has been paid by the Indians out of the funds received from Mason and Dickson on the Ewart judg- ment." It does not appear what services, if any. were rendered by the said Ewart in consideration of receiving the 20 per cent, or that there was any other considera- tion for the said contract between him and the said Indians. As the said Ewart is 'not a party to this suit, and the validity of this claim is apparently not here called in question, I do not deem it proper to report upon its validity; but as a copy of the judgment rendered in his favor has been filed with me, I would respectfully call it to the attention of the court. Being in the nature of a "judgment quando," and not of immediate operation, it appears to be void. Respectfully submitted this 11th day of November, 1895. Ro. M. Douglas, Standing Master in Chancery. Upon the coming in of the foregoing report of the standing master, the same was confirmed and the injunction theretofore issued against your petitioners was dissolved and a decree entered permitting the parties to the Boyd contract to carry same out pursuant to tlie terms thereof. Said decree is as follows: The United States of America, western district of North Carolina, fourth circuit. In equity. The United States et al i'. D. T. Boyd et al. This case now comes up upon the report of the standing master in chancery, who was instructed by an order of 14th August, 1895, to " inqure into all the facts connected with the contract in issue and the circumstances under which it was made: the ade- quacy of the consideration thereof, the existence of any fraud or unfair dealing therein, and into any other facts pertaining to the issues involved, concerning which any party to this cause may offer testimony, and that he report the same with all con- venient speed to this court." The facts as developed in the testiiuonv, reported by the master, show that the sum of$15,000, oontracted to be paid to the Indians for
the timber, was a fair and adequate price for it: that there was no fraud or unfair
dealing in the making of the said contract between the .«aid Indians and Boyd, the
defendant.

10 RELIEF OF H, M. DICKSON ET AL.

Hearing the tesliinony and the argument ol' counsel tliereon, and upon due con-
sideration thereof, it is ordered, adjudged, and decreed that the injunction and
restraining order heretofore made in this cause be dissolved, and that the parties to
the contract have leave to carry out the same pursuant to the terms thereof.

It having been stated in open court that George H. Smathers, esc^., present thereat,
is the custodian of funds received and to be received under the contract aforesaid
from the purcliasi rs ihcreunder, it is ordered that he be, and is hereby, appointed
receiver in that lirhalf. subject to the orders of this court. That he do, within ten
days from the date hereof, enter into bond, with sureties, to be approved by a com-
missioner of this court, in the sum of \$20,000 foi- the faithful performance of his trust.
That he invest the funds in his hands, or coming into his hands, from time to time in
public securities or in first-mortgage bonds, secured by real estate otherwise unin-
cumbered, the sum loaned not to exceed one-half the actual value of such real estate,
interest at 6 per cent per annum, payable annually or semiannually. That beyond
this he make no disposition of any funds in his hands, except under further order of
this court.

The master having bi-ought to the attention of the court that Hon. H. G. Ewart
has a claim on these funds, leave is hereby given to the said H. G. Ewart to intei'vene
in this suit as he may be advised.

('h.\rles H. Simoxton, Circuit Judge.

February 11, 189G.

The Government appealed from so much of this decree as hekl that
the court had the power to permit the parties to carry out the con-
tract according to its terms, the contention of the Government being
that the contract was wholly void on the ground that these Indians
were 'tribal Indians and embraced within the terms of the Congres-
sional enactments for the protection of tribal Indians. This conten-
tion of the Government was sustained on appeal, the United States
circuit court of appeals at Richmond holding that the North Carolina
Cherokees were tribal Indians and incompetent to contract witliout
the consent of the Government.

The opinion of the court in this case can be found in United wStates-
V. Boyd et al. (83 Fed. Rep., 547 et seq.).

Attention is specially called to the fact that in this case no refer-
ence is made by the court to the decision of the United States Supreme
Court in the case of Eastern band of Cherokee Indians v. United
States and Cherokee Nation (117 U. S. R., 288; 29 L. Ed., 880)
where the whole subject of the North Carolina Cherokees and their
status is discussed and where on page 309, the court says:

The Cherokees in North Carolina dissolved their connection with their nation when
they refused to accompany the body of it on its removal, and they have had no political
organization since. Whatever union they have had among themselves has been
merely a social or business one. It was formed in 1868 at the suggestion of an officer
of the Indian Office, for the purpose of enabling them to transact business with the
Government with greater convenience. Although its articles are drawn in the form
of a constitution for a separate civil government, they have never been recognized by
the United States; no treaty has been made with them; they can pass no laws; they
are citizens of that State and bound by its laws.

The case from which this quotation is made w^as the one mainly
relied upon in the circuit court of appeals by your petitioners who
were contending that the North Carolina Cherokees were citizens of
North Carolina and it is strange, to say the least, that the court did
not even refer to it in their opinion.

An appeal from this decision of the circuit court of appeals to the
United States Supreme Court was duly taken in apt time by your
petitioners, but shortly thereaffer the" Interior Department of the
United States reinvestigated the contract and the circumstances
under which it was made and confirmed said contract.

RELIEF OF H. M. DICKSON ET AL. 11

There had been a change of achiiinistration and the hostile and
interested influences in tlie Department of the Interior which, as
hereinbefore set out, had accompHshed the defeat of every effort by
your petitioners to have the Boyd contract confirmed, were removed.

In partial proof of the facts hereinbefore set forth and in partial
confirmation of the allegations of your petitioners herein, a copy of
the transcript of the record on appeal in the case of "United States