Cherokee Nation v. United States, 202 U.S. 101 (1906)

CHEROKEE NATION, Appt., v.

UNITED STATES. (No. 348.)

(See S. C. Reporter’s ed. 101-132.)

States is liable for the amount stated to be due the Indians under the treaty of May 23, 1836 (7 Stat. at L. 488), in the account transmitted by the Secretary of the Interior to the Cherokee Nation, and accepted by the latter pursuant to the agreement for the cession of the Cherokee Outlet to the United States, made between the United States and the Cherokee Nation on December 19, 1891, and ratified by Congress in the act of March 3, 1893 (27 Stat. at L. 641, chap. 209), by which an account of moneys due the Cherokee Nation under treaty stipula¬ tions was to be rendered by the United States to such nation without delay, the amount of which, if accepted by such nation, was to be appropriated at once by Congress, the agree¬ ment further providing that if the Cherokee Nation did not accept the account, and carried it into the courts, and recovered a judgment, Congress was to make an appropri¬ ation for the payment of such judgment at its next session after the cause should be finally decided.

pense of removing the Eastern Cherokees to the Indian territory was, by the treaties of

949

102

Supreme Court of the United States.

Oct. Term,

May 23, 1836 (7 Stat. at L. 478), and August 6, 1846 (9 Stat. at L. 871), Im¬ posed upon the United States.

est Included In the account of the sums due the Indians under treaty stipulation, trans¬ mitted by the Secretary of the Interior to the Cherokee Nation pursuant to the agree¬ ment for the cession to the United States of the Cherokee Outlet, made between the United States and the Cherokee Nation on December 19, 1891, and ratified by Con¬ gress in the act of March 3, 1893, is properly allowed by the court of c’Ums, notwith¬ standing the provision of U. S. Rev. Stat. § 1091, U. S. Comp. Stat. 1901, p. 747, for¬ bidding the allowance of Interest on “any claim up to the time of the rendition of judgment thereon by the court of claims, unless upon a contract expressly stipulat¬ ing for the payment of interest,” where the question of interest was a subject of difference while the negotiations were being carried on, the determination of which was provided for in the agreement itself.

tribution. — The Eastern Cherokees as in¬ dividuals, whether east or west of the Mis¬ sissippi, who were parties either to the treaty of May 23, 1836, or that of August 6, 1846, exclusive of the “Old Settlers,” who had been fully paid, are entitled to share in the distribution, through the Secretary of the Interior^ of the amount awarded the Indians as due under those treaties for the removal of the Eastern Cherokees to the Indian territory, by the court of claims, pursuant to the act of July 1, 1902 (32 Stat. at L. 726, chap. 1375), § 68, which, as construed by the act of March 3, 1903 (32 Stat. at L. 996, chap. 994), confers jurisdiction on that court to adjudicate any claim “the Cherokee tribe or any band thereof, arising under treaty stipulations, may have against the United States,” in a suit to which both the Chero¬ kee Nation and the Eastern Cherokees shall be made parties, and authorizes that court to render judgment in favor of the rightful claimants, and to determine, as between the different claimants, to whom the judgment so rendered equitably belongs, either wholly or in part.

fund — Cherokee claims. — Counsel fees payable out of the amount awarded to the Eastern Cherokees as individuals by the court of claims, pursuant to the act of July 1, 1902, § 68, which, as construed by the act of March 3, 1903, confers jurisdiction on that court to adjudicate any claim arising under treaty stipulations that the Cherokee tribe or any band thereof may have against the. United States, in a suit to which both the Cherokee Nation and the Eastern Chero¬ kees shall be made parties, and authorizes that court to render judgment in favor of the rightful claimants, and to determine, as between the different claimants, to whom the judgment so rendered equitably belongs, either wholly or in part, may be allowed to the Cherokee Nation, whose tribal existence and government is continued by the joint resolution of March 2, 1906, until all the

950

tribal property shall be distributed among the individual members, although, by the acts of June 7, 1897, June 28, 1898 (30 Stat. at L. 62, 495, chaps. 3, 517), and July 1, 1902, the Cherokee Nation was practically incapacitated from acting as trustee, and by § 63 of the latter act it was provided that the tribal government of the Cherokee Nation should not continue longer than March 4, 1906.

tribution. — The Eastern and Emigrant Cherokees are only entitled to share as in¬ dividuals with the other Eastern Cherokees in the distribution, through the Secretary of the Interior, of the amount awarded the Indians as due under the treaties of May 23,

. 18«>6, and August 6, 1846, for the removal of the Eastern Cherokees to the Indian terri¬ tory, by the court of claims, pursuant to the act of July 1. 1902, 5 68, which, as con¬ strued by the act of March 3, 1903, confers jurisdiction on that court to adjudicate any claim “the Cherokee tribe or any band thereof, arising under treaty stipulations, may have against the United States,” in a suit to which both the Cherokee Nation and the Eastern Cherokees shall be made parties, and authorizes that court to render judg¬ ment in favor of the rightful claimants, and to determine, as between the different claim¬ ants, to whom the judgment so rendered equitably belongs, either wholly or in part.

[Nos. 346, 347, 348.]

A'rgued January 16, 17, 18, 1906. Decided April 30, 1906.

A PPEALS from the Court of Claims to re- lA view an award to the Eastern Cherokee Indians of the amounts due from the United States under treaty stipulations. Modified by excluding the “Old Settlers” from the dis¬ tribution of the amount awarded for the removal of the Eastern Cherokees to the Indian territory, and, as so modified, af¬ firmed.

See same case below, 40 Ct. Cl. 252.

Statement by Mr. Chief Justice Fullers Section 6S of the act of Congress of July 1, 1902, entitled “An Act to Provide for the Allotment of the Lands of the Cherokee Na¬ tion, for the Disposition of Town Sites Therein [Described], and for Other Pur¬ poses” (32 Stat. at L. 726, chap. 1375), reads as follows :

Jurisdiction is hereby conferred upon the court of claims to examine, consider, and adjudicate, with a right of appeal to the Su¬ preme Court of the United States by any party in interest feeling aggrieved at the decision of the court of claims, any claim which the Cherokee tribe, or any band there¬ of, arising under treaty stipulations, may have against the United States, upon which suit shall be instituted within two years after the approval of this act; and also to

202 U. S.

United States v. Chebokee Nation.

102-105

■examine, consider, and adjudicate any claim ■which the United States may have against said tribe, or any band thereof. The insti¬ tution, prosecution, or defense, as the case may be, on the part of the tribe or any band, of any such suit, shall be through attorneys employed and to be compensated in the man¬ ner prescribed in sections twenty-one hun¬ dred and three to twenty-one hundred and six, both inclusive, of the Revised Statutes of the United States, the tribe acting through its principal chief in the employment of such attorneys, and the band acting through a committee recognized by the Secretary of the Interior. The court of claims shall have [lt)3]full authority, by proper orders and ‘process, to make parties to any such suit all persons whose presence in the litigation it may deem necessary or proper to the final deter¬ mination of the matter in controversy, and any such suit shall, on motion of either par¬ ty, be advanced on the docket of either of said courts and be determined at the ear¬ liest practicable time.”

February 20, 1903, the Cherokee Nation filed a petition in the court of claims asking judgment on an account rendered by Slade & Bender, pursuant to the treaty of March 3, 1893 (27 Stat. at L. 640, chap. 209), with interest.

March 3, 1903, an act was approved en¬ titled “An Act Making Appropriations for the Current and Contingent Expenses of the Indian Department and for Fulfilling Treaty Stipulations with Various Indian Tribes for the Fiscal Year Ending June Thirtieth, Nineteen Hundred and Four, and for Other Purposes” (32 Stat. at L. 996, chap. 994), containing the following provisions:

“Section sixty-eight of the act of Con¬ gress entitled ‘An Act to Provide for the Allotment of the Lands of the Cherokee Na¬ tion, for the Disposition of Town Sites Therein, and for Other Purposes,’ approved July 1st, nineteen hundred and two, shall be so construed as to give the Eastern Chero- kees, so called, including those in the Chero¬ kee Nation and those who remained east of the Mississippi river, acting together or as two bodies, as they may be advised, the sta¬ tus of a band or bands, as the case may be, for all the purposes of said section: Pro¬ vided, That the prosecution of such suit on the part of the Eastern Cherokees shall be through attorneys employed by their proper authorities, their compensation for expenses and services rendered in relation to such claim to be fixed by the court of claims up¬ on the termination of such suit; and said section shall be further so construed as to require that both the Cherokee Nation and said Eastern Cherokees, so called, shall be made parties to any suit which may be in- 202 U. S.

stituted against the United States under said section upon the claim mentioned in House of Representatives’ Executive Docu¬ ment Numbered Three Hundred and Nine of the second session of the ‘Fifty-seventh Con-

gress; and if said claim shall be sustained in whole or in part, the court of claims, sub¬ ject to the right of appeal named in said section, shall be authorized to render a judg¬ ment in favor of the rightful claimant, and also to determine, as between the different claimants, to whom the judgment so ren¬ dered equitably belongs, either wholly or in part, and shall be required to determine whether, for the purpose of participating in said claim, the Cherokee Indians who re¬ mained east of the Mississippi river consti¬ tute a part of the Cherokee Nation or of the Eastern Cherokees, so called, as the case may be.”

The claim mentioned in said H. R. Ex.

Doc. No. 309, 57th Cong., 2d sess., is therein referred to as “the award rendered under the Cherokee agreement of December 19,

1891, ratified by act of Congress approved March 3, 1893.”

March 14, 1903, a petition was filed on behalf of all the Eastern Cherokees, both west and east of the Mississippi river, al¬ leging in substance that there was due to the Eastern Cherokees, upon the account of Slade & Bender, the sum of $1,111,284.70, with interest from June 12, 1838, as an award against the United States or, if the court should not hold said account as an award, the sum of $1,761,447.27, with inter¬ est at 5 per cent from the same date, to¬ gether with interest on the income annually accruing, at the rate of 5 per cent per an¬ num until paid, by virtue of the treaties of 1828 (7 Stat. at L. 313) and the treaty of 1835-1836, commonly known as the “treaty of New Echota.” [7 Stat. at L. 478.] But at the trial of the case no contention was made for this larger amount.

March 20, 1903, a petition was filed on be¬ half of certain Eastern Cherokees, living east of the Mississippi, amended September 3,

1903, when petitioners took the title of the Eastern and Emigrant Cherokees, asserting their claim to a pro rata share of —

“That portion of the removal and subsis¬ tence fund improperly taken by the United States from the five-million fund on account of removal of Eastern Cherokees, as found *by the expert accountants, Messrs. Slade &

Bender, April 28, 1894, • the said five-million fund being an interest-bearing fund in the hands of the United States, as trustee, and representing the money paid by the govern¬ ment to the Eastern Cherokees for the sale of their lands in North Carolina, Georgia, and Tennessee, or east of the Mississippi

951

105-107

Supreme Court of the United States.

Oct. Term,

river, as set forth in article 1st of the treaty of New Echota, in north Georgia, on March 14, 1835, and articles 2 and 3 of the supple¬ mental treaty proclaimed May 23, 1836 [7 Stat. at L. 488], this sum so misapplied amounting, in accordance with said account¬ ing, to $1,111,284.70, with interest at 5 per cent per annum from the date of said wrong¬ ful taking, June 12, 1838, to date.”

The three petitions were consolidated and heard as one case, and although in effect the proceedings were in equity, findings of fact and conclusions of law were filed.

Among the facts found were these:

XVIII.

By § 14 of the act of Congress entitled “An Act Making Appropriations for the Current and Contingent Expenses of the In¬ dian Department, and for Fulfilling Treaty Stipulations with Various Indian Tribes for the Year Ending June 30, 1890, and for Other Purposes,” approved March 2, 1889 (25 Stat. at L. 1005, chap. 412), the Presi¬ dent was authorized to appoint three com¬ missioners to negotiate with the Indian tribes owning or claiming lands lying west of the 96th degree of longitude in the Indian territory for the cession to the United States of all their title, claim, or interest of every kind or character in and to said lands, and he did appoint David H.. Jerome, Alfred M. Wilson, and Warren G. Sayre such com¬ missioners.

By virtue of the authority contained in an act of the Cherokee national council, ap¬ proved November 16, 1891, Elias C. Boudi- not, Joseph A. Scales, Roach Young, Wil¬ liam Triplett, Thomas Smith, Joseph Small¬ wood, and George Downing were duly ap¬ pointed commissioners —

“To meet and enter into negotiations with

the above-named Commission, appointed by the President of the United States, for the cession of the lands of the Cherokee Nation west of the 96th degree of west longitude, and for the final adjustment of all questions of interest between the United States and the Cherokee Nation which are now unset¬ tled.”

By said act of Congress it was made the duty of said commissioners appointed by the President to report all agreements resulting from such negotiations to the President, to be by him reported to the Congress at its next session, and by the act of the Cherokee council it was made the duty of the com¬ missioners, on the part of the Cherokee Na¬ tion, to report all their proceedings in full t'o the national council for its approval and ratification. Ex. Doc. 56, 52d Cong., 1st sess., 17.

952

At the outset of the negotiations between said commissioners for the purchase and sale of said lands, which were known as the “Cherokee Outlet,” the commissioners on the part of the Cherokee Nation renewed their claims and contentions with respect to the balances alleged to ,be .due to them un¬ der various treaties, and particularly their contention that the so-called treaty fund had been improperly charged with the expense of the removal of the Eastern Cherokees to the Indian territory, and demanded as “a condition precedent to any agreement for the sale of the land” that some adjustment of such contentions should be made.

On the 19th of December, 1891, after pro¬ longed negotiations, the commissioners above named entered into articles of agreement, by article 1 of which it was agreed that —

“The Cherokee Nation, by act duly passed, shall cede and relinquish all its title, claim, and interest of every kind and character in and to that part of the Indian territory bounded on the west by the one hundredth (100°) degree of west longitude, on the north by the state of Kansas, on the east by the ninety-sixth (96°) degree west longi¬ tude, and on the south by the Creek Na¬ tion, the territory of Oklahoma, and the Cheyenne and Arapahoe reservation created or defined by Executive order, dated August 10, i860, the tract of land ^embraced within

the above boundaries containing eight mil¬ lion, one hundred and forty-four thousand, six hundred and eighty-two and ninety-one one-hundredths (8,144,682.91) acres, more or less.”

By article 2 that —

“For and in consideration of the above cession and relinquishment the United States agrees : ”

First. That it will remove from the limits of the Cherokee Nation as trespassers certain described persons.

Second. That a certain article of the an¬ tecedent treaty of July, 1866 [14 Stat. at L. 799], should be abrogated and held for na, ught.

Third. That the judicial tribunals of the Cherokee Nation should have exclusive ju¬ risdiction in certain eases.

Fourth. That —

“The United States shall, without delay, render to the Cherokee Nation, through any agent appointed by authority of the national council, a complete account of moneys due the Cherokee Nation under any of the trea¬ ties ratified in the years 1817, 1819, 1825, f

tNo such treaty appears to have been made in this year. The treaty intended was doubt¬ less the one made October 24, 1804 (7 Stat. at L. 228), and not proclaimed until Mav 17.' 1824.— Ed.

202 U. S.

United States v. Chebokee Nation.

107-109

1828, 1835-1836, 1846, 1866, and 1868 [7 Stat. at L. 156, 195, 228, 311, 478; 9 Stat. at L. 871; 14 Stat. at L. 799; and 16 Stat. at L. 727], and any laws passed by the Con¬ gress of the United States for the purpose of carrying said treaties, or any of them, into effect; and upon such accounting, should the Cherokee Nation, by its national council, conclude and determine that such account¬ ing is incorrect or unjust, then the Chero¬ kee Nation shall have the right, within twelve months, to enter suit against the United States in the court of claims, with the right of appeal to the Supreme Court of the United States by either party, for any alleged or declared amount of money prom¬ ised but withheld by the United States from the Cherokee Nation, under any of said trea¬ ties or laws, which may be claimed to be omitted from, or improperly or unjustly or illegally adjusted in, said accounting; and the Congress of the United States shall, at its next session after such case shall be final¬ ly decided and certified to Congress accord¬ ing to law, appropriate a sufficient sum of monev to pav such judgment to the Chero-

kee Nation, should judgment be rendered *in her favor; or, if it shall be found upon such accounting that any sum of money has been so withheld, the amount shall be duly ap¬ propriated by Congress, payable to the Cherokee Nation, upon the order of its na¬ tional council, such appropriation to be made by Congress, if then in session, and if not, then at the session immediately follow¬ ing such accounting.”

Fifth. That certain citizens of the Chero¬ kee Nation should have the right to select lands as homesteads under certain condi¬ tions; and

Sixth. In addition to all of the foregoing enumerated considerations for the cession and relinquishment of title to the described lands, the United States shall pay to the Cherokee Nation, at such times and in such manner as the Cherokee national council shall determine, the sum of $8,595,736.12 in excess of the sum of $728,389.46, the aggre¬ gate of amounts heretofore appropriated by Congress and charged against the lands of the Cherokees west of the Arkansas river.

Said articles of agreement were accepted, ratified, and confirmed on the part of the Cherokee Nation by an act of the national council approved January 4, 1892, and were also accepted, ratified, and confirmed on the part of the United States by act of Congress of March 3, 1893 (27 Stat. at L. 640, chap. 209).

Prior to the acceptance and ratification of said agreement on the part of the United States, as aforesaid, the commissioners on behalf of the United States, as required by

202 U. S.

the law under which they were appointed, had reported to the President the making of the articles of agreement aforesaid, and by way of explanation said :

“As to the conditions of the agreement, be¬ sides the relinquishment of title upon the one part and the payment of a price in money on the other, it is necessary to state that the settlement of the matters contained in such conditions were made a condition precedent to any agreement for the. sale of the land.

“The accounting provided for in the fourth subdivision of article 2 of the agreement is inserted and agreed to, because *the Chero-Ll09] kees are compelled to accept the construc¬ tion of the treaties made by the executive and administrative branches of the govern¬ ment.

“Whatever that construction is, the Indian must abide by. There is no appeal except to Congress. Without going specifically in¬ to details, the Cherokees claim that upon a just accounting upon a proper construction of the treaties named, a large sum of money, principal and interest, will be found due them. They also desire to include lands as well as money, but they were induced to eliminate ‘lands’ from the provision. With that eliminated, the provision was agreed to, as set out. The government has made the accounting, has kept the books, has con¬ strued the treaties. If that has been done properly, no harm can come from restating the account. If it has not been done prop¬ erly, no possible reason can exist why the error should not be corrected.” Sen. Ex.

Doc. 56, 52d Cong., 1st sess., pp. 11, 12.

Gen. Thomas J. Morgan, Commissioner of Indian Affairs, in his report to the Secre¬ tary of the Interior on February 6, 1892, made the following explanation and com¬ ment on the 4th section of article 2, to wit:

“The 4th section of article 2 provides for an accounting between the United States and the Cherokee Nation. The work neces¬ sary to render this account will be very heavy, and much time will be necessary to properly prepare the same. On this pro¬ vision of the agreement the commissioners say:

“ ‘The government has made the account¬ ing, has kept the books, has construed the treaties. If this has been done properly, no harm can come from restating the account.

If it has not been done properly, no possible reason can exist why the error should not be corrected. It creates no new obligations against the government, but only provides for legal discharge of the old ones.’

“This seems to me to be a reasonable view to take of this provision, and I do not see

953

109-112

that any valid objection could be advanced against it.

*“ln your reference of the matter to this office you said:

“ ‘Particular attention is called to § 4 of article 2 of the agreement, with request for a full report as to what may be the state of the account between the United States and the Cherokees, if practicable, within a reasonable time; if not, your general con¬ clusions.’

“In reply to this indorsement I have the honor to say that if this section is construed to require the United States to state an ac¬ count of moneys stipulated to be paid to the Cherokee Nation under the treaties there¬ in specified and under the various appropria¬ tion acts to carry the same into effect, this account could be prepared by this office with¬ in a reasonable time, say about two months. If, on the other hand, it be construed to re¬ quire a detailed statement of all the moneys received and disbursements made by the United States of the Cherokee funds under said treaties and acts of Congress, which seems to me to be the intention of the par¬ ties negotiating the agreement, it would re¬ quire the services of an expert accountant, with assistants, probably twelve months or more to review and copy the Cherokee ac¬ counts and records running back nearly a century. In order to prepare a statement of this kind it would require an appropriation by Congress of the sum of at least $5,000 to pay for the services of an expert accountant, and in the draft of a bill for the ratification of the agreement herewith inclosed, I have provided for the appropriation of that sum, or so much thereof as may be necessary for that purpose.” Senate Ex. Doc. No. 56, 52d Cong., 1st sess., p. 8.

This report of the Commissioner was, on or about February 8, 1892, referred by the Secretary of the Interior to the Assistant Attorney General for the Interior Depart¬ ment “for his consideration and report upon the legality of the contract, the sufficiency of the proposed bill, and his views upon the questions of law relating to the subject,” and on or about February 25, 1892, said

officer reported thereon, as appears "in said Senate Executive Document 56, Fifty-sec ond Congress, first session, saying, among; other things :

The report and agreement were referred to the Commissioner of Indian Affairs, who, under date of February 6, 1892, reported favorably on the agreement, and transmitte 1 with his report the draft of a bill to be submitted to Congress to ratify and carry out the provisions thereof. . . . T1 e agreement contains two articles. The first 954

Oct. Term,

relates to the cession and the second to the consideration therefor. . . .

“The considerations for said cession, nS contained in article 2, are set forth und;T six subdivisions. . . .

“The fourth and next provision of article 2 of the agreement requires the TTnitod States to render to the Cherokee Nation a complete accounting of all money agreed to be paid to the Indians, or which they may be entitled to under any treaty or act of Con¬ gress since 1817. And, if said accounting is satisfactory, Congress shall make the necessary appropriation to pay the same.

But if the accounting is not satisfactory,

, then the Cherokees to have the right to in¬ stitute suit in the court of claims against the United States for the claimed amount, and Congress is to make the necessary ap¬ propriation to pay the judgment, if any, recovered.

“I see nothing in the stipulations herein to comment upon. It seems right and pro¬ motive of good feeling that there should be a full and final settlement of all claims and accounts of these Indians against the United States, and I think the terms of agreement, are sufficiently clear to secure such account¬ ing.

“The Commissioner of Indian Affairs asks-, for a special appropriation of $5,000 to en¬ able him to make the accounting.”

All of these reports were before the Con¬ gress when it accepted and ratified said ar¬ ticles of agreement by act of March 3, 1893:

(27 Stat. at L. 641, chap. 209), in the fol¬ lowing language, to wit:

“Which said agreement is fully set forth in the message of the President of the Unit¬ ed States, communicating the same to Con¬ gress, known as Executive Document No.

56 of the first session of the Fifty-second Congress, the lands referred *to being com- [112 monly known and called the ‘Cherokee Out¬ let;’ and said agreement is hereby ratified by the Congress of the United States, sub¬ ject, however, to the Constitution and laws of the United States and the acts of Con¬ gress that have been or may be passed regu¬ lating trade and intercourse with the Indi¬ ans, and subject also to certain amendments thereto, as follows : [Amendments

not important here.] .

And the provisions of said agreements so amended shall be fully performed and carried out on the part of the United States;

1 rovided that the money hereby appropri¬ ated shall be immediately available, and the remaining sum of eight million, three hun¬ dred thousand dollars, or so much thereof as is required to carry out the provisions • of said agreement as amended and accord¬ ing to, this act, to be payable in five equal

202 U. S.

Supreme Court op tee UNITED States.

United States v. Cherokee Nation.

112-1 1 4

annual instalments, commencing on the fourth day of March, eighteen hundred and ninety-five, and ending on the fourth day of March, eighteen hundred and ninety-nine, said deferred payments to bear interest at the rate of four per centum per annum, to be paid annually, and the amount required for the payment of interest as aforesaid is hereby appropriated; . . .

“The acceptance by the Cherokee Nation of Indians of any of the money appropriated as herein set forth shall be considered and taken and shall operate as a ratification by said Cherokee Nation of Indians of said agreement, as it is hereby proposed to be amended, and as a full and complete relin¬ quishment and extinguishment of all their title, claim, and interest in and to said lands ; . . .

“And said lands, except the portion to be allotted as provided in said agreement, shall, upon the payment of the sum of two hun¬ dred and ninety-five thousand, seven hun¬ dred and thirty-six dollars, herein appropri¬ ated, to be immediately paid, become, and be taken to be, and treated as, a part of the public domain.”

XIX.

*By said act of March 3, 1893, ratifying said agreement for the purchase of the “Cherokee Outlet,” the Congress also pro¬ vided as follows:

“The sum of five thousand dollars, or so much thereof as may be necessary, the same to be immediately available, is hereby ap¬ propriated, out of any money in the treas¬ ury not otherwise appropriated, to enable the Commissioner of Indian Affairs, under the direction of the Secretary of the In¬ terior, to employ such expert person or persons to properly render a complete ac¬ count to the Cherokee Nation of moneys due said nation, as required in the fourth sub¬ division of article 2 of said agreement.”

Thereafter James A. Slade and Joseph T. Bender were employed as experts under the provisions of said section of said act, and they made and rendered an account pur¬ suant to the provisions of paragraph 4 of article 2 of the articles of agreement of December 19, 1891, as ratified and affirmed by said act of March 3, 1893. Said account was, by the Secretary of the Interior, re¬ ferred to the Commissioner of Indian Af¬ fairs for examination and report, and the same having been examined and approved by said Commissioner, was by the latter re¬ turned to the Secretary of the Interior, who transmitted the same to the Cherokee Na- 202 U. S.

tion by delivering a copy thereof to R. F. Wyley, its properly constituted agent for receiving the same, and said account so made, rendered, and transmitted, was ac¬ cepted by the Cherokee Nation by an act of its national council approved December 1,

1894, and no suit was thereafter brought by the Cherokee Nation against the United States, charging that said account was in anywise incorrect or unjust, but, on the con¬ trary, the principal chief of the Cherokee Nation, as required by the act of its na¬ tional council above referred to, did notify the Secretary of the Interior of the aceept- ance by said nation of said account as so stated by Messrs. Slade and Bender; and did request said Secretary of the Interior to notify the Congress of the United States of *such acceptance, and on the 7th of January, [114}

1895, the Secretary of the Interior reported the entire matter to the Congress in the fol¬ lowing words:

Sir: I have the honor to herewith trans¬ mit, in compliance with the provisions of the third subdivision of article 2 of the agree¬ ment made December 19, 1891, with” the Cherokee Indians, ratified by the act of Con¬ gress approved March 3, 1893 (27 Stat, at L. 643, chap. 209 ) , a certified copy of ‘a complete account of moneys due the Cher¬ okee Nation under any of the treaties made in the years 1817, 1819, 1825, 1833, 1835,

1836, 1846, 1866, and 1868 [7 Stat. at L.

156, 195, 228, 414, 478 ; 9 Stat. at L. 871; 14 Stat. at L. 799; and 16 Stat. at L. 727], and any laws passed by the Congress of the United States for the purpose of carrying said treaties, or any of them, into effect,’ prepared in accordance with the provisions oi the said act of March 3, 1893, together with a certified copy of an act of Cherokee national council, accepting such accounting.

“The Speaker of the House of Representa¬ tives.” House Ex. Doc. No. 182, 53d Cong.,

3d ses3.

XX.

The report and accounting made by said James A. Slade and Joseph T. Bender, re¬ ferred to in the foregoing finding, is in the words and figures which appear in House Executive Document 182, Fifty-third Con¬ gress, third session. The conclusion thereof is as follows:

“The foregoing statement covers, it is be¬ lieved, every point at issue which can be raised under the treaties described in the articles of agreement [a number of demands made by the Cherokee Nation were disal¬ lowed], and the result of the finding is sub¬ mitted in the following schedule:

955,

114-117

Supreme Court of the United States.

Oct. Term

Under the treaty of 1819 :

Value of three tracts of land containing 1,700 acres, at $1.25 per acre, to be added to the principal of the

“school” fund . . $2,125 00

(With interest from February 27, 1819, to date of pay¬ ment.)

♦Under treaty of 1835 :

Amount paid for removal of Eastern Cherokees to the Indian territory, improperly

charged to treaty fund . 1,111,284 70

(With interest from June 12,

1838, to date of payment.)

Under treaty of 1866 :

Amount received by receiver of public moneys at Inde¬ pendence, Kansas, never

credited to Cherokee Nation 432 28

(With interest from January 1,

1874, to date of payment.)

Under act of Congress, March 3,

1893:

Interest on $15,000 of Choc¬ taw funds applied in 1863 to relief of indigent Cherokees, said interest being improper¬ ly charged to Cherokee na¬ tional fund . 20,406 25

With interest from July 1,

1893, to date of restoration of the principal of the Cher¬ okee funds, held In trust in lieu Of investments.

“Washington, D. C., April 28, 1894. “(Signed)

Jas. A. Slade, Jos. T. Bender.”

XXI.

In arriving at the item of $1,111,284.70, the accountants, among other tabulations, made the following statement of the account :

“Figuring upon the basis stated in the 9th article of the treaty of 1846, and following the Auditor’s and Comptroller’s figures in the accounting of December 3, 1849, and eliminating from the charges made against the total fund of $6,647,067 the excess of payments over the amounts appropriated by the United States for that purpose, the true statement of the account is as follows:

For improvements . $1,540,572 27

For ferries . 159,572 12

For spoliations . 264,894 09

For removal and subsistence, being the amount actually provided and expended for these purposes, and consist¬ ing of the following items :

( $335,105 91 1 ) 1,047,067 00 f For debts and claims upon the

Cherokee Nation . 101,348 31

For the additional quantity of

land ceded to the nation . 500,000 00

For amount invested as the gen¬ eral fund of the nation.. . 500 880 00

956

For subsistence furnished after expiration of one year, under agreement that it should be

charged to treaty fund . 172,316 47

4,621,756 17

For lands and possessions . 5,000,000 00

For spoliations . , . 264,894 09

Balance of $600,000 applicable

to removal . $335,105 91

Appropriation of June 12, 1838.. 1,047,067 00

6,647,067 00

From which deduct charges as

above . 4,621,756 17

Balance to be distributed per

capita . 2,025,310 83

Deduct amount actually dis¬ tributed as already explained.. 914,026 13

Balance due . 1,111,284 70

The sum of $914,026.13 actually distrib¬ uted to the Eastern Cherokees in 1852, out of the above balance of $2,025,310.83, was appropriated as follows:

Amount found due by Treasury officials, under article 9, 1846,

In the report of the Auditor and Comptroller of December

3, 1849 . $627,603 95

Erroneous charge corrected by act of February 27, 1851 [9

Stat. at D. 570, chap. 12] _ 96,999 42

Erroneous charge account sub¬ sistence, corrected by Congress,

September 30, 1850 [9 Stat.

at L. 544, chap. 91] . 189,151 24

914,026 13

This amount of $914,026.13 was distribut¬ ed solely to 14,098 Eastern Cherokees in the West and 2,133 Eastern Cherokees who re¬ mained East.

Interest on the above sum of $914,026.13 at 5 per cent from June 12, 1838, was also appropriated by Congress and distributed per capita to said Eastern Cherokees in the same payment. The balance to be distrib¬ uted per capita according to the above re¬ port and which was not distributed, to wit, $1,111,284.70, is the sum of which the East¬ ern Cherokees complain they were deprived in the settlement of 1852; that while they received only $56.31 per capita, excluding interest, *they should have received the fur-

ther sum of $1,111,284.70, or a total of $2,- 025,310.83, as appears in the above account rendered as the true balance under article 9, making them a total per capita of $124.78.

The settlement made with the Old Settlers was as set forth in Finding XVII.

XXII.

Neither the whole nor any portion of the various sums with interest found and stated by the concluding schedule of the so-called

202 U. S.

United States v. Chebokee Nation.

117-119

Slade-Bender report to be due to the Chero¬ kee Nation under the treaties and acts of Congress therein referred to have been paid to the Cherokee Nation, or to any officer, agent, or other person acting in its behalf.

With the exception of the provision con¬ tained in the act of March 2, 1895 [28 Stat. at L. 764, chap. 177, U. S. Comp. Stat. 1901, p. 776], making appropriations for the leg¬ islative. executive, and judicial expenses of the government, directing the Attorney Gen¬ eral to review and report upon the conclu¬ sion of law disclosed in the account of Slade and Bender, and the passing of the provi¬ sions of the acts of July 1, 1902, and March 3, 1903, conferring jurisdiction upon the United States court of claims to hear and determine these causes, the Congress has taken no action whatever with respect to the said account of Slade and Bender or the amounts found due thereunder.

Acting under said direction of March 2, 1895, above referred to, the Attorney Gen¬ eral of the United States, on December 2, 1895, addressed a communication to the Con¬ gress wherein he advised that body of his disagreement with the conclusions reached by said Slade and Bender. Said communi¬ cation of the Attorney General was, on De¬ cember 2, 1895, by the Congress referred to the Committee on Indian Affairs and or¬ dered to be printed, and the same appears in Senate Executive Document No. 16, Fif¬ ty-fourth Congress, first session.

May 18, 1905, the court “adjudged, or- (418]dered, and decreed *that the plaintiff, the Cherokee Nation, do have and recover of and from the United States as follows:

Item 1. The sum of . $2,125 00

With interest thereon at the rate of 5 per cent from Feb¬ ruary 27, 1819, to date of payment.

Item 2. The sum of . 1,111,284 70

With interest thereon at the rate of 5 per cent from June 12, 1838, to date of pay¬ ment.

Item 3. The sum of . 432 28

With interest thereon at the rate of 5 per cent from Jan¬ uary 1, 1874, to date of payment.

Item 4. The sum of . 20,406 25

With interest thereon from

July 1, 1893, to date of pay¬ ment.

“The proceeds of said several items, how¬ ever, to be paid and distributed as follows:

“The sum of $2,125, with interest thereon at the rate of 5 per cent from February 27, 1819, to date of payment, less 5 per cent thereof contracted by the Cherokee Nation to be paid as counsel fees, shall be paid to 202 U. S. U. S., Book 50.

the Secretary of the Interior in trust for the Cherokee Nation, and shall be credited on the proper books of account to the principal of the ‘Cherokee. school fund’ now in the pos¬ session of the United States and held by them as trustees.

“The sum of $432.28, with interest there¬ on at the rate of 5 per cent from January 1, 1874, to date of payment, less 5 per cent thereof contracted by the Cherokee Nation to be paid as counsel fees, shall be paid to the Cherokee Nation, to be received and receipted for by the treasurer or other prop¬ er agent of said nation entitled to receive it.

“The sum of $20,406.25, with interest thereon at the rate of 5 per cent per annum from July 1, 1893, to date of payment, less 5 per cent thereof contracted by the Chero¬ kee Nation to be paid as counsel fees, shall be paid .to the Secretary of the Interior and credited on the proper books of account to the principal of the ‘Cherokee national fund,’ now in the possession of the United States and held by them as trustees.

*“The sum of $1,111,284.70 with interest

thereon from June 12, 1838, to date of payment, less such counsel fees as may be chargeable against the same under the pro¬ visions of the contract with the Cherokee Nation of January 10, 1903, and such other counsel fees and expenses as may be here¬ after allowed by this court under the pro¬ visions of the act of March 3, 1903 (32 Stat. at L. 996, chap. 994), shall be paid to the Secretary of the Interior, to be by him re¬ ceived and held for the uses and purposes following:

“First. To pay the costs and expenses in¬ cident to ascertaining and identifying the persons entitled to participate in the distri¬ bution thereof and the costs of making such distribution.

“Second. The remainder to be distributed directly to the Eastern and Western Chero- kees, who were parties either to the treaty of New Echota, as proclaimed May 23, 1836, or the treaty of Washington of August 6,

1846, as individuals, whether east or west of the Mississippi river, or to the legal representatives of such individuals.

“So much of any of the above-mentioned items or amounts as the Cherokee Nation shall have contracted to pay as counsel fees under and in accordance with the provisions of §§ 2103 and 2106, both inclusive, of the Revised Statutes of the United States, and so much of the amount shown in item num¬ bered two (2) as this court hereafter, by appropriate order or decree, shall allow for counsel fees and expenses under the provi¬ sions of the act of March 3, 1903, above re¬ ferred to, shall be paid by the Secretary of the Treasury to the persons entitled to re-

120-122

Supreme Court of the United States.

Oct. Term

oeive the same, upon the making of an ap¬ propriation by Congress to pay this judg¬ ment.

“The allowance of fees and expenses by this court under said act of March 3, 1903, is reserved until the coming in of the man¬ date of the Supreme Court of the United States.”

The facts are stated in extenso in the re¬ port of the case, 40 Ct. Cl. 252, occupying some forty pages.

Assistant Attorney General Pradt argued the cause and filed a brief for the United States.

Messrs. Frederic D. McKenney and

Charles Nagel argued the cause, and, with Mr. Edgar Smith, filed a brief for the Cherokee Nation.

Mrs. Belva A. Lockwood argued the cause and filed a brief for the Eastern and Emigrant Cherokees.

Messrs. Robert L. Owen and William

H. Robeson argued the cause, and, with Messrs. Robert V. Belt, James E. Jones, M. C. Butler, John Vaile , and Scarritt c£- Cox, filed a brief for the Eastern Cherokees.

Mr. Chief Justice Fuller delivered the opinion of the court:

Of the four items of the amounts allowed, only one, that for $1,111,284.70, need be considered here.

(1) The correctness of the account is con¬ ceded, and the question is whether the Unit¬ ed States were properly held liable therefor. The court of claims ruled that the account rendered by Slade and Bender under the agreement between the United States and the Cherokee Nation, ratified by Congress, was neither an award nor an account stated, but that the United States were neverthe¬ less liable in the circumstances for the bal¬ ance found.

The case is thus put by Chief Justice Nott:

“But while the account was neither an award nor an account stated, it must be con¬ ceded that the scope of the accounting was intended to be as broad, as the causes of action secured by the agreement to the Cher¬ okee Nation ‘the right within twelve months to enter suit against the United States in the court of claims for any alleged or de¬ clared amount of money promised but with- J.21]hield by the United States from the “Cherokee Nation, under any of said treaties or laws, which may be claimed to be omitted from or improperly or unjustly or illegally ad¬ justed in said accounting.’ That is to say, the court, or the accountants, were to go behind statutory and treaty bars and re¬ ceipts in full and were to consider ‘any al¬ leged or declared amount of money promised

but withheld’ ‘under any of said treaties or laws.’ This meant that there were to be no technical defenses set up, no pleas of res judicata, no releases or ' relinquishments, compromises or settlements; or it meant nothing. . . .

“Interpreted in the light of the long, sore controversy which had existed between the parties, it is plain that the Cherokees be¬ lieved the agreement to mean (and the United States allowed them so to believe) that all of their claims and rights and equities were to be reopened and re-exam¬ ined de novo ; and that upon the faith of that belief they made a cession of the Out¬ let.' In the opinion of the court this case is simply one to recover purchase money upon a contract of sale. Ordinarily, in such a case, the cession would not be made, the deed would not be delivered, until the pur¬ chase money is paid or secured or, at least, the amount be ascertained and liquidated.

In this case both parties wanted to expedite the transaction. It was important for the United States that the cession of the terri¬ tory should be made immediately; it was desirable for the Cherokee Nation that the purchase money should be paid soon. But, nevertheless, the Cherokee Nation had the right to immediate payment, and the agree¬ ment intended to secure to them the next thing to it, the right to an early payment.

The accounting was merely a means to an end. The end was the immediate payment, as near as might be, of the whole considera¬ tion to be given for the cession of the Out¬ let. When the cession was made the pur¬ chase money was due; the only thing re¬ maining, which was the object of the ac¬ counting, was to ascertain the exact amount.

This is not the case of a party prosecuting an unliquidated debt, but a case of sale “and delivery and nonpayment of the pur- (1221 chase money for the thing sold and delivered.

The United States were willing to pay; the Cheiokee Nation wanted the payment made at the earliest possible day; both parties agreed upon a method by which it should be paid as nearly immediately as was possible.

The United States were to render their ac¬ count ‘without delay;’ if the Cherokee Na¬ tion accepted it, the amount was to be ap¬ propriated by Congress ; such ‘appropriation to be made by Congress, if then in session, and if not, then at the session immediately following such accounting.’ If the Cherokee Nation did not accept the accounting, or re¬ garded it as incorrect or unjust, and carried it into the courts and recovered a judgment. Congress was to appropriate ‘at its next session after such case shall be finally decid¬ ed.’ Nothing was left to the ordinary un¬ certainties and procrastinations of letosla- tion, and no agreement could have made the

202 V. S.

United States v. Chebokee Nation.

121-124

obligation to pay promptly more unequivocal and specific. Time was of the essence of the contract, so far as the words of the parties could make it.

“The court does not intend to imply that when the account of blade and Bender came into the hands of the Secretary of the In¬ terior he was bound to transmit it to the Cherokee Nation. On the contrary, the Cherokee Nation had not agreed to be bound by the report of the accountants and could not claim that the United States should be. The accountants were but the instrumentali¬ ty of the United States in making out an account. When it was placed in the Interior Department it was as much within the dis¬ cretion of the Secretary to accept and adopt it or to remand it for alterations and cor¬ rections as a thing could be. He was the representative of the United States under whom the agreement had been made, and he was the authority under which the account had been made out, and when he transmitted it to the Cherokee Nation his transmission was the transmission of the United States. When the account was thus received by the Cherokee Nation (May 21, 1894), the ‘twelve

months’ of the agreement, within which *the nation must consider it and enter suit against the other party in the court of claims, began to run, and with the nation’s acceptance of the account (December 1, 1894) the session of Congress at which an appropriation should be made became fixed and certain. The Secretary did not recall the account; the United States never ren¬ dered another, and the utmost authority which Congress could have exercised, if any, was, at the same session, or certainly within the prescribed ‘twelve months,’ to have di¬ rected the Secretary to withdraw the ac¬ count and notify the Cherokee Nation that another would be rendered. The action of the Secretary of the Interior, combined with the inaction of Congress to direct anything to the contrary, makes this provision of the agreement final and conclusive. The Chero¬ kee Nation has parted with the land, has lost the time within which it might have appealed to the courts, and has lost the right to bring the items which it regards as in¬ correctly or unjustly disallowed to judicial arbitrament, and the United States are placed in the position of having broken and evaded the letter and spirit of their agree¬ ment.”

Weldon, J., concurred with the Chief Jus¬ tice in a separate opinion. Peelle, J., con¬ curred in the judgment, but rested his con¬ clusion on the ground that the United States were liable “to pay the expense of removal” of the Eastern Cherokees from their eastern home to the Indian territory, under the 202 U. S.

treaties of 1835-1836 aat 1846 (7 Stat at L. 478; 9 Stat. at L. 871) and therefore to pay this conceded balance. The various treaties from 1817, down, the legislation, ac¬ countings, and proceedings, were duly con¬ sidered in arriving at the result reached. Wright, J., dissented.

We agree that the United States were liable, and think the liability might well be rested on both grounds, — that is, that fail¬ ing one, it could be sustained on the other; but we do not deem it necessary to set forth in our own language what has already been so well stated by Chief Justice Nott and Judges Weldon and Peelle.

was au judged *“with interest thereon at the

rate of 5 per cent from June 12, 1838, to date of payment,” and it is contended that the court of claims erred in this allowance of interest.

Under the 11th article of the treaty of 1846 the Cherokees agreed to submit to the Senate of the United States, as umpire, the question whether interest should be allowed on the sums found due them. The Senate of the United States, as umpire, on Sep¬ tember 5, 1850, found that interest should be allowed, in the following resolution : “Re¬ solved, That it is the sense of the Senate that interest at the rate of 5 per cent per annum should be allowed upon the sums found due to the Eastern and Western Cherokees, re¬ spectively, from the 12th day of June, 1838, until paid.”

The Cherokees who had emigrated prior to 1835, with accessions to that date, were known as the “Old Settlers,” or “Western Cherokees,” and in the case of the United States v. Old Settlers, 148 U. S. 427, 37 L. ed. 509, 13 Sup. Ct. Rep. 650, this court said in respect of the claim for interest:

“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 § 1091 of the Revised Statutes (U.

S. Comp. Stat. 1901, p. 747), no interest can ‘be allowed on any claim up to the time of the rendition of judgment thereon bv the court of claims, unless upon a contract ex¬ pressly stipulating for the payment of in¬ terest;’ and in Tillson v. United States, 100 U. S. 43, 25 L. ed. 543, it was held that a recovery of interest was not authorized un¬ der a private act referring to the court of claims a claim founded upon a contract with the United States, which did not ex-

959

124-127

Supreme Court of the United States.

Out. Term,

pressly 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 bind¬ ing 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 Stat. at L. 556, chap. 91.

“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 in¬ terest is controlling, and that, therefore, in¬ terest must be allowed from June 12, 1838, upon the balance we have heretofore indicat¬ ed, but not upon the item of 4,179.26, which stands upon different ground.”

The Congress of the United States on numerous occasions had recognized the force of the decision of the Senate, and made appropriations accordingly, appropriating the funds due as interest.

On September 30, 1850, Congress appro¬ priated to the Eastern Cherokees, in reim¬ bursing an amount improperly charged the treaty fund for subsistence, the sum of $189,422.76, with the provision:

“That interest be paid on the same at the rate of five per cent per annum, according to a resolution of the Senate of fifth Sep¬ tember, eighteen hundred and fifty.” 9 Stat. at L. 556, chap. 91.

On February 27, 1851, Congress, in ap¬ propriating the amount of the per capita then conceded to be due the Eastern Chero¬ kees, to wit, $724,603.37, provided as fol¬ lows :

“And interest on the above sum, at the rate of five per centum per annum, from twelfth day of June, eighteen hundred and thirty-eight, until paid, shall be paid to them out of any money in the Treasury not otherwise appropriated.” 9 Stat. at L. 572, chap. 12.

Congress, on September 30, 1850, in ap¬ propriating the amount of the per capita, then conceded to be due the Old Settlers, provided :

That interest be allowed and paid upon

the above sums *due respectively to the Cher¬ okees and ‘Old Settlers,’ in pursuance of the above-mentioned award of the Senate under the reference contained in the said 11th article of the treaty of sixth August, eighteen hundred and forty-six.” 9 Stat. at L. 556, chap. 91.

The question of interest was a “subject of difference while the negotiations were being carried on, the determination of which was provided for in the treaty itself” in 900

1846, and in the “agreement itself’ in 1891, and is the same in principle as in the case of the Old Settlers.

tion by the decree?

We refer to the same item, as there is really no controversy over the other three items, and the criticism as to the payment of item three is not material. If no proper agent of the Cherokee Nation to receive the $432.28 can be found, it may be received by the United States as trustee.

The jurisdictional act of March 3, 1903, provided that “both the Cherokee Nation and said Eastern Cherokees, so-called, shall be made parties to any suit which may be instituted against the United States under said section upon the claim mentioned;” and authorized the court “to render a judgment in favor of the rightful claimant and also to determine, as between the different claim¬ ants, to whom the judgment so rendered equitably belongs, either wholly or in part.”

In the petition filed by the Cherokee Na¬ tion in this case it is declared that the Cher¬ okee Nation is “a body politic,” and “is, a3 such, the ‘Cherokee tribe’ mentioned in §

68 of the act of Congress aforesaid [July 1,

1902, 32 Stat. at L. 726, chap. 1375], and authorized thereby to bring this proceed¬ ing.” But the language of the section is that jurisdiction is conferred to adjudicate “any claim which the Cherokee tribe or any band thereof, arising under treaty stipula¬ tions, may have against the United States,” and even if it were conceded that the Chero¬ kee Nation could be treated as a body poli¬ tic, not as a body corporate, but in the sense of a governmental community, we should say “the Cherokee tribe or any band ‘thereof” means the Cherokee people as a

people, or any band thereof, and not the Cherokee Nation as a body politic.

It should be observed that the term “Cher¬ okee Nation” has been used as representing the people themselves; the government of the Cherokees ; and the government as trus¬ tee for all of its people, or for some of them, as their rights might appear.

In the treaty of July 2, 1791, the “Chero¬ kee Nation” was described as “all the indi¬ viduals composing the whole Cherokee Na¬ tion of Indians.” [7 Stat. at L. 39.] In the treaty of 1835 these Indians are referred to as the “Cherokees” and as “the Cherokee Nation.” In the treaty of 1846 as “the Cher¬ okee Nation,” “the Cherokee people,” and “the Cherokees.”

Under the first article of the treaty of 1846 the lands of the Cherokee Nation be¬ longed to the whole Cherokee people. The lands sold east of the Mississippi river be¬ longed to the Cherokee people as then exist-

20? TJ. S-

United States v. Cherokee Nation.

127-129

ing as communal property. The Western Cherokees, so-called, that is to say, the Old Settlers, were paid for their interest in those lands as communal owners. 148 U. S. 427, 37 L. ed. 509, 13 Sup. Ct. Rep. 650. They were paid individually, a community within a community.

Mr. Chief Justice Nott treats of this mat¬ ter thus:

“While the United States have always, or nearly always, treated the members of an Indian tribe as communal owners, they have never required that all the communal owners shall join in the conveyance or ces¬ sion of the land. From the necessities of the case, the negotiations have been with representatives of the owners. The chiefs and head men have ordinarily been the per¬ sons who carried on the negotiations and who signed the treaty. But they have not formed a body politic or a body corporate, and they have not assumed to hold the title or be entitled to the purchase money. They have simply acted as representatives of the owners, making the cession on their behalf, but allowing them to receive the considera¬ tion per capita. In the present case the Cherokee Nation takes tne place, so far as [128J communal ownership is involved. *of the chiefs and head men of the uncivilized tribes. This, top, is consonant with the usage of nations. The claims of individuals against a foreign power are always present¬ ed, not by them individually, but by their government. The claims are pressed as in¬ ternational, but the money received is re¬ ceived in trust, to be paid over to the per¬ sons entitled to it.

“As to those Cherokees who remained in Georgia and North Carolina, in Alabama and Tennessee, they owe no allegiance to the Cherokee Nation, and the nation owes no political protection to them. But they, as communal owners of the lands east of the Mississippi, at the time of the treaty of 1835, were equally interested, with the communal owners who were carried to the West, in the $5,000,000 fund which was the consid¬ eration of the cession, so far as it was to be distributed per capita. The Cherokee Na¬ tion was not bound to prosecute their claims against the United States for the unpaid balance of the $5,000,000 fund, but their rights were inextricably interwoven with the rights and equities of the Cherokees who were citizens of the nation, and the na¬ tion properly made no distinction when part¬ ing with the Outlet, but demanded justice from the Cherokee point of view for all Cherokees who had been wronged by the nonfulfilment of the treaty of New Echota. As to these Eastern nonresident Cherokee aliens the nation acted simply as an at- 202 U. S.

torney collecting a debt. In its hands the moneys would be an implied trust for th." benefit of the equitable owners.

“After a careful consideration of the cir¬ cumstances and conditions of these cases, the court is of the opinion that the moneys awarded should be paid directly to the equitable owners.”

And after referring to the present status of the Cherokee Nation as about to termi¬ nate, the Chief Justice says:

“In this condition of affairs the court must regard the Cherokee Nation as in a condition somewhat analogous to that of a trustee or receiver who has become insol¬ vent; that is to say., as a person who should not be intrusted with the ^receipt and di-tri-

bution of the moneys belonging to other per¬ sons.”

The court of claims decreed that after deducting counsel fees, costs, and expenses, the sum of $1,1 1 ],2S4.70, with interest, should be paid to the Secretary of the In¬ terior, to be by him received and held for the uses and purposes of paying costs and ex¬ penses, as stated, and then distributing the remainder “directly to the Eastern and West¬ ern Cherokee, who were parties either to the treaty of New Echota, as proclaimed May 23, 183G. or the treaty of Washington, of August 6. 1840. as individuals, whether east or west of the Mississippi river, or to the legal representatives of such individu¬ als.”

The eighth finding of fact was as follows:

“The Cherokee Indians who removed west- of the Mississippi prior to May 23, 1836, were called ‘Western Cherokees.’ After- the removal, under the treaty of 1835-1836, of the Cherokees who had remained in the Cher¬ okee country east of the Mississippi to the lands west of tin Mississippi, the term ‘Western Cherokees was no longer distinc¬ tive, and the Cherokees who had theretofore been known as such were thereafter popu¬ larly known as ‘Old Settlers.’

“The Cherokees who were domiciled east of the Mississippi river at the time of the making of the treaty of 1835-1836, accord¬ ing to the census just then completed, were thereafter known as ‘Eastern Cherokees,’ the great body of whom subsequently, in 1838, moved to the lands west of the Missis¬ sippi.”

So far as the “Old Settlers” are concerned, they have been fully paid and cannot be allowed to participate in this distribution.

There had been a settlement with these Cherokees, which was reopened in the Old Settlers Case and they were allowed to as¬ sert any and all claims on their part against the United States. Judgment was there¬ after rendered as to a portion of these claims

961

129-132

Supreme Court of the United States.

Oct. Term,

in their favor (148 U. S. 427, 37 L. ed. .509, 13 Sup. Ct. Rep. 050), which judgment was thereafter paid in full by the United States, so that these Old Settlers have no [130JM Hiding) in this action. And. "indeed, they never had nor asserted any interest what¬ ever in the claim herein involved and are not claimants. In the settlement of 1851, the cost of removal, with which they were charged, did not diminish the five-million- dollar treaty fund, but came entirely from the $600,000 added to that fund by the third supplemental article of the treaty of New Echota, and the payment that was made to them pursuant to the 4th article of the treaty of 1846 was not a third of the resid¬ uum of the treaty fund, but a sum equal to one third. It was the Eastern Cherokeea only who were interested in that residuum, and so article 9 of that treaty provided for payment to the Eastern Cherokees of that balance, and for a fair and just settlement of all moneys due to the Cherokees, and payment of the same per capita to the East¬ ern Cherokees. The Cherokee Nation, as such, had no interest in the claim, but offi¬ cially represented the Eastern Cherokees.

The act of February 27, 1851, appropriat¬ ing the amount due on the accounting under article 9 of the treaty of 1846, provided that it should be in full satisfaction of all claims and demands of the Cherokee Nation and that a receipt in full should be given. The receipts as given were signed by the indi¬ vidual Eastern Cherokees.

We concur with the court of claims in the wisdom of rendering judgment in favor of the Cherokee Nation, subject to the limi¬ tation that the amount thereof should be paid to the Secretary of the Interior, to be distributed directly to the parties entitled to it, but we think that the terms of the second subdivision of the fourth paragraph -of the decree, in directing that the distri¬ bution be made to “the Eastern and Western Cherokees,” are perhaps liable to miscon¬ struction, although limited to those “who were parties either to the treaty of New Echota, as proclaimed May 23, 1836, or the treaty of Washington of August 6, 1846, as individuals, whether east or west of the Mississippi river.” This should be modified so as to direct the distribution to be made to the Eastern Cherokees as individuals,

whether east or west of the Mississippi, "par¬ ties to the treaties of 1835-1836 and 1846 and exclusive of the Old Settlers.

In view of the language of the jurisdic¬ tional acts of 1902 and 1903 ip respect of the Cherokee Nation, we are not disposed to interfere with the court of claims in the al¬ lowance of fees and costs.

It is true that, in the replication of the

962

Cherokee Nation to the petition of the East¬ ern Cherokees this paragraph occurs:

“It denies that the Cherokee Nation, in securing the accounting under the agree¬ ment of December 19, 1891, did so on behalf of the Eastern Cherokees referred to, and for their exclusive use and- benefit; and further denies that if it had collected or hereafter shall collect such moneys, the same would have been or will be in its hands an implied trust for the benefit of the Eastern Chero¬ kees, exclusively or otherwise.”

It is also true that by the acts of June 7, 1897, June 28, 1898 [30 Sta.t. at L. 62,

495, chaps. 3, 517], and July 1, 1902, the Cherokee Nation was practically incapaci¬ tated from acting as trustee, and by § 63 of the Cherokee allotment act (32 Stat. at L. 725, chap. 1375) it was provided that “the tribal government of the Cherokee Na¬ tion shall not continue longer than March fourth, nineteen hundred ancl six.” But by joint resolution of March 2, 1906, Congress provided as follows:

“That the tribal existence and present trioal governments of the Choctaw, Chicka¬ saw, Cherokee, Creek, and Seminole tribes or nations of Indians in the Indian terri¬ tory are hereby continued in full force and effect for all purposes under existing laws until all property of such tribes, or the pioceeds thereof, shall be distributed among the individual members of said tribes, un¬ less hereafter otherwise provided by law.”

Nevertheless, taking the entire record to¬ gether, the various treaties and acts of Con¬ gress, and of the Cherokee councils, and the language of the jurisdictional acts of 1902 and 1903, we leave the decree as it is in respect to counsel fees and costs.

in respect to whom it is stated in their peti¬ tion “that they number about 4.500 "per-

sons, more or less, all Eastern Emigrant Cherokees, residing for the most part in Cherokee, Graham, Swain, Clay, and Macon counties, North Carolina, some in north Georgia, northerli Alabama, and eastern Tennessee, together with about 1,500 emi¬ grants, portions of their various families, gone West, nearly all of whom have been recognized as citizens, and who compose a large portion of those persons heretofore known as the Eastern band of Cherokee In¬ dians of North Carolina, and others of the same class, whose names, or those of whose ancestors, may be found on the rolls of 1835 and 1838,” asked that one-fourth part of the whole sum recovered be set apart for them as their distributive share. But we think they are only entitled to receive the per capita payment with the Eastern Cher-

202 U. S.

Whitney y. Dick.

132, 133

okees, and should obtain that payment ac¬ cordingly.

The result is, that with the modification of the second subdivision of the fourth par¬ agraph of the decree, relating to the $1,111,- 284.70 with interest, above indicated, the decree of the Court of Claims is affirmed.