40 Ct. Cl. 252 | Ct. Cl. | 1905
Lead Opinion
delivered the opinion of the court:
In December, 1891, the United States and the Cherokee Nation entered into an agreement for the purchase and sale of a great tract in the Indian Territory known as the Cherokee Outlet. At the time of this negotiation the Cherokees had a grievance against the United States — a grievance which had burned in the breasts of two generations, and had never been forgiven or forgotten. That grievance was the treaty of 1835, commonly known as the treaty of New Echota' — the corrupt method bjr which it had been procured, the ruthless means by which it had been executed, and the
“ We complain of sending among us a large armed force, of the attempts made to prevent the expression of opinion among us, of the arrest and imprisonment of our persons, of the expulsion of our people from their homes; for which even the document in question furnishes no ground or cause. All these, however, sink into insignificance when compared with the one overwhelming calamity, present and prospective, of having the instrument of December, 1835, enforced upon us and our people.”
And in that remarkable petition submitted to Congress, bearing date February 22, 1838, signed by 15,665 of the Cherokee people, the whole nation reiterated, “ We do solemnly and earnestly protest against that spurious instrument.”
But while the Cherokee people always maintained that the treaty of New Echota was falsely executed in their name by a few unauthorized, unofficial persons, corruptly suborned by an agent of the United States, they nevertheless were compelled by the condition of affairs in the Cherokee country and by the overwhelming power of the United States to, in a measure, adopt it through the instrumentality of the Cherokee treaty of 1846 (9 Stat. L., p. 871), of which this court has said:
“ That treaty was a compact between three parties — the United States, the Eastern and the Western Cherokees. Its purpose was to make the Eastern and Western Cherokees parties to the treaty of New Echota, which they had never conceded themselves to be, and to secure peace in the Cherokee country. The principle upon which it sought to accomplish this purpose was, that, on the one hand, the Western Cherokees should participate in the purchase money which*316 bad been paid for the lands east of the Mississippi, and, on the other, that they should abandon their autonomy and become subject to the government which had been established by the Eastern Cherokees.
“ The reason behind the 2orinciple was that in 1835 the Western Cherokees owned the Cherokee country West, and had paid for it, and that the Eastern Cherokees acquired by the terms of the treaty of New Echota two-thirds of this without paying for it, and at the same time retained all of the purchase money which had been given for their possessions east of the Mississippi. A portion of this purchase money had been expended for the use of the Eastern Cherokees and a portion continued to be held as a trust for their benefit; the remainder had been paid to them per cafita.
“ If their removal had been effected on the same terms as that of the'Western Cherokees, under the treaty of 1828 they would have received land in the Indian Territory in exchange for land east of the Mississippi.
“As it was, they had received both land and money ; but the land was the land of the Western Cherokees. Strictly, the Government should have paid the Western Cherokees for the lands thus appropriated, and should have deducted the price from the money paid to the Eastern Cherokees. It was now sought by the treaty of 1846 to accomplish this in an indirect way; the Western Cherokees were to be admitted ab initio to a quasi partnership or joint ownership, by the terms of which they were to contribute the land in the Indian Territory and share in the proceeds of the land east of the Mississippi.
“ By the terms of this arrangement the Eastern Cherokees consented to their sharing in the purchase money so far as it Avas still held by the United States in the form of trusts and annuities; and the United States agreed that so far as it had been paid away to individual Indians and could not be restored they should pay it over again, and thus make good to the Western Cherokees their rightful proportion in the fund.” (Western Cherokees v. United States, 27 C. Cls. R., 1, 36.)
Having thus become indirectly and unwillingly parties to the treaty of New Echota the Eastern Cherokees, nevertheless — that is to say, all of those Cherokees who were divested of their lands.east of the Mississippi by the treaty of New Echota in 1835 — have steadfastly and persistently maintained that that treaty, harsh and inexorable as it was, has never been carried into effect according to the true import and ostensible intent of its provisions.
“ 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 treaties ratified in the the years 1817, 1819, 1825, 1828, 1835-36, 1846, 1866, and 1868, and any laws passed by the Congress 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 accounting is incorrect or unjust, then the Cherokee 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 promised but withheld by the United States from the Cherokee Nation, under any of said treaties or Taws, 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 finally decided and certified to Congress according to law, appropriate a sufficient sum of money to pay such judgment to the Cherokee 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 appropriated by Congress, payable to*318 the Cherokee Nation, upon the order of its national council, such appropriation to be made by Congress, if then in session, and if not, then at the session immediately following such accounting.”
There was at the time when this agreement was entered into no understanding or supposition as to how the United States should render the account called for. The representatives of the United States did not themselves know. This is shown incontestably by the fact that soon afterwards the Commissioner of Indian Affairs, in response to some inquiry, reported to the Senate:
“ I have the honor to say that if this section is construed to require the United States to state an account of moneys stipulated to be paid to the Cherokee Nation, under the treaties therein specified, and under the various appropriation acts passed to carry the same into effect, this account could be prepared by this office within a reasonable time — ■ say, about two months. If, on the other hand, it be construed to require 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 parties negotiating the agreement, it would require the services of an expert accountant, with assistants, probabty twelve months or more to review and copy the Cherokee accounts 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.”
Congress adopted the latter alternative, and, by the Act 3d March, 1893 (27 Stat. L., pp. 612, 643, § 10), appropriated $5,000 to enable the Commissioner “ to employ such expert person or persons to properly render a complete account to the Cherokee Nation of moneys due,” etc. Two accountants were selected by the Commissioner of Indian Affairs (Messrs. James A. Slade and Joseph T. Bender), who, after a prolonged examination, in 1894 handed in their account. It resulted in allowing three items of trifling amount, which the United States conceded, and in disallowing items which the Cherokee Nation claimed; and on the great and important subject in dispute — the treaty of New Echota — it found a balance of $1,111,284.70, and it allowed interest upon this
At this point the uncertainties and the controversies of the case begin. When the account came in (April 28, 1894) the Secretary of 'the Interior (who occupies the same position with regard to Indian nations and tribes that the Secretary of State does with regard to foreign nations) transmitted it (May 21, 1894) to the Cherokee Nation. The nation accepted it (December 1, 1894) and signified their acceptance, thereby waiving the items which the accountants had disallowed and its right to carry those rejected items into the 'courts of the United States. On January 7, 1895, the Secretary of the Interior transmitted the account, together with the acceptance of the Cherokee Nation, to the House of Representatives.
Congress did not make the appropriation in the manner prescribed in the agreement — “ such appropriation to be made by Congress if then in session, ancl if not, then at the session immediately following such accounting” — but, on the contrary, did nothing. At the end of the session the House of Representatives, on the 2d of March, 1895, called on the Attorney-General for an opinion concerning the conclusions reached by the accountants. The Attorney-General
On the trial of this case the arguments extended over a very wide range of fact and law, going back to the treaty of New Echota and coming down to the questions whether the account of Messrs. Slade and Bender could be considered as an award or as an account stated.
In the opinion of the court the account can not be regarded as an .award; in the opinion of the court it does not have one element of an award. An award is the result of an examination in some form or other by a person mutually agreed upon. In building contracts courts have constantly before them stipulations that certain things shall be decided- bjr the architect, or by the engineer in charge, whose decision shall be final. Such awards, within proper limitations, are to be upheld. But in the agreement now before us there is not so much as the suggestion of a person who shall act as umpire or of a matter to be submitted to him. All that the. agreement requires, as before has been said, is that one of the parties, the United States, shall render to the other their account. Flow they shall render it, in what form they shall render'it, to what extent they shall render it, is left entirety to themselves. ■ It is to be the account of the United States and not the account of some person acting for both parties. Before there can be an award, having the element of finality, there must be something mutually submitted to somebody. Such was not the case here.
Neither can the court regard it as an account stated. An account stated is something arising in the ordinary course of business between men having continuous business transactions. When one of them, the creditor, makes out an account
But while the account ivas neither an award nor an account stated, it must be conceded that the scope of the accounting was intended to be as broad as the causes of action secured by the agreement to the Cherokee Nation “the right within twelve months to enter suit against the United States in the Gourt of Claims for any alleged or declared amount of money promised hut withheld hy the United States from the Gheroltee Nation, under any of said treaties or laws, which may he claimed to he omitted from or improperly or unjustly or illegally adjusted in said accountings That is to say, the court, or the accountants, were to go behind statutory and -treaty bars and receipts in full and were to -consider “ any alleged 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. For if the proposed suit of the Cherokees was to be decided strictissimi juris, i. e., upon technical defenses, it had already been decided against them.
That decision was not against the Cherokee Nation, but it was against Cherokee citizens. The Cherokees have main-
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 purchase money is paid
The court does not intend to imply that when the account of Slade and Bender came into the hands of the Secretary of the Interior he was bound to transmit it to the Cherokee Nation. On the contrary, the Cherokee Nation had not
When the agreement is analyzed it seems plain that if the court were to uphold the course which the United States have pursued it would have to adopt one of two alternatives: Either it would have to read into the agreement provisions which are not there and which are the converse of those
The question which next arises relates to the contending parties before the court — the Cherokee Nation, being the Cherokee government, the Eastern Cherokees, being the communal owners.
The contracting party here, being also the party who made the conveyance of the Cherokee Outlet, was the Cherokee Nation; and if the lands of the Cherokees Avere, like the lands of the United States, Government lands, or public lands in which the Government has the sole proprietary interest, and in which no individual has any personal interest whatever, there could not be a doubt of the exclusive right of the Cherokee Nation to have a judgment awarded in its name. But in 1835 the lands of the Cherokees east of the Mississippi, and in 1846 the lands of the Cherokees in the Indian Territory, were neither public nor private lands- in the ordinary sense of those terms. The term “ communal,” it is believed, is not to be found in treaties or statutes or public documents relating to the Indians prior to the date of the case of the Western Cherolcees (27 C. Cls. R., 1). But the officers of the Government, under stress of circumstances— that is to say, the expectations of the Indians — have always treated Indian lands as communal, though they did not use the term and had very dim perceptions as to the nature of the estate. Whenever the Government has paid for a cession of Indian land per capita to every member of an Indian community, share and share alike, it was because the Indians knew that their lands were communal property and that they, as communal owners, were entitled to the purchase
“ The lands east of the Mississippi were not vested in the Cherokee government, as distinguished from the Cherokee people. Their chiefs in council, as representative of the body politic, might, perhaps, have sold or disposed- of them, but under their constitution and laws could not have brought an action of trespass or ejectment against one of their own citizens for dwelling upon or hunting over the lands. The title was not vested in the Cherokees as individuals. They were neither tenants in common nor j oint tenants. The individual Cherokee' had no vested right which he could convey or devise or make the subject of a suit in partition. If he withdrew from the community he left all rights behind him, and if a stranger was admitted he acquired a right by virtue of his admission alone. The property was communal — a property wherein every person, not as an individual, but as a member of the community, held an equal, indistinguishable, indivisible right of user, and nothing more.”' (Western Cherokees v. United States, 27 C. Cls. R., 1, 53.)
The present case is also complicated by the fact that a considerable portion of these communal owners are neither citi-. zens of the Cherokee Nation nor subject to its jurisdiction nor dwellers within its territory, but are and always have been residents of territory east of the Mississippi, owing-allegiance, now exclusively to the United States. It is also complicated by the fact that the account rendered by the United States to the Cherokee Nation is made up of four distinct and essentially different items: One, the chief one, is for money erroneously charged to the Cherokees instead of being divided per capita among them; another is for money which should have been added to the principal of the school fund, a fund which is held by the United States in trust; a third is for money improperly charged to the Cherokee national fund, likewise held in trust by the United States. Only one appears to be money properly due to the Cherokee Nation as a government, and that for the inconsiderable amount of $432.28. The case is further complicated by the fact that the government of the Cherokee Nation is
The action instituted in this court by the Cherokee Nation was properly an action at law to recover a liquidated amount of money upon an express contract. But the act 1st July, 1902 (32 Stat. L., p. 716, § 68), under which itpvas instituted, authorized the court to adjudicate any claim which the Cherokee Nation “ or any band thereof ” might have against the United States, with. “ full authority by proper orders and process to make parties to any such suit all persons tallóse presence in the litigation it may deem necessary or proper to the final determination of the matter in controversy.” The supplemental act 3d March, 1903 (32 Stat. L., p. 996), expressly authorized “the Eastern Cherokees, so called, including those in the Cherokee Nation and those who remained East of the Mississippi Biver,” to come in and prosecute their claims, with power to the court “ also to determine as between the different claimants to whom the judgment so rendered' equitably belongs.” The case then being that of many persons severally interested in a common fund, is one of which equity takes jurisdiction and the several suits merged by interpleader into one have become a suit in equity.
While the United States háve 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 cession of the land. From the necessities of the case the negotiations have been with representatives of the owners. The chiefs and headmen have ordinarily been the persons 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 consideration per capita. In the present case the Cherokee Nation takes the place, so far as communal ownership is involved, of the chiefs and headmen
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 consideration of the cession, so far as it was to be distributed per capita. The Cherokee Nation 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 Cherokees who were citizens of the nation, and the nation properly made no distinction when parting with the Outlet but demanded justice from the Cherokee point of view for all Cherokees who had been wronged by the nonfulfillment of the treaty of New Echota. As to these Eastern nonresident Cherokee aliens the nation acted simply as an attorney collecting a debt. In its hands the moneys would be an implied trust for the benefit of the equitable owners.
After a careful consideration of the circumstances and conditions of these cases, the court is of the opinion that the moneys awarded should be paid directly to the equitable owners. A great change has come within a few years, both as to the powers and the responsibilities of the Cherokee Nation. Its statute went to the full extent of the civil law in making the Government liable to all persons being citizens of the nation: “ The Cherokee Nation shall be liable to all persons whatever, citizens of the nation, having claims at law or equity against her to the same extent as individual persons are liable to each other and may be sued by any citizen having a cause of action.” (Code 1874, p. 240,
“ The constitution of the Cherokees was á wonderful adaptation to the circumstances and conditions of the time, and to a civilization that was yet to come. It was framed and adopted by a people, some of whom were still in the savage state and the better portion of whom had just entered upon that stage of civilization which is characterized by industrial pursuits, and it was framed during a period of extraordinary turmoil and civil discord, when the greater part of the Cherokee people had just been driven by military force from their mountains and valleys in Georgia, and been brought by enforced immigration into the country of the Western Cherokees; when a condition of anarchy and civil war reigned in the Territory — a condition which was to continue until the two branches of the nation should be united under the treaty of 1846 (27 C. Cls. R., 1) ; yet for more than half a century it has met the requirements of a race steadily advancing in prosperity and education and enlightenment so well that it has needed, so far as they are concerned, no material alteration or amendment, and deserves to be classed among the few great works of intelligent statesmanship which outlive their own time and continue through succeeding generations to assure the rights and guide the destinies of men. And it is not the least of the successes of the constitution of the Cherokees that the judiciary of. another nation are able, with entire confidence in the clearness and wisdom of its provisions, to administer it for the protection of Cherokee citizens and the maintenance of their personal and political rights.” (Journeycake v. Cherokee Nation, 28 C. Cls. R., 281, 317.)
Since those words were written a hopeless development has taken place in the affairs of this people. It has been with them as it has been with other nations — as it has been with families and individuals — to rise in the times of their tribulation, but to sink under the enervating blessings of prosperity.
“ On the 1st August, 1838, while the dispirited throng of Cherokee exiles paused in their march at a temporary halting place, the name of which does not appear on the map nor inthe list of post-offices, and which is known only from what transpired there'as ‘Aquohee camp,’ they were able to de
“ Whereas the Cherokee people have existed as a distinct national community in the possession and exercise of the appropriate and essential attributes of sovereignty for a period extending into antiquity beyond the dates and record and memory of man; •
“And, whereas these attributes, with the rights and franchises which they involve, have never been relinquished by the Cherokee people, but are now in full force and virtue;
“And whereas the natural, political, and moral relations subsisting among the citizens of the Cherokee Nation toward each other and toward the body politic can not, in reason and justice, be dissolved by the expulsion of the nation from its own territory by the power of the United States Government :
“Resolved, therefore, by the national committee and council and people of the Cherokee Nation, in general council assembled, That the inherent sovereignty of the Cherokee Nation, together with the constitution, laws, and usages of the same, are, and by the authority aforesaid are hereby declared to be, in full force and virtue, and shall continue so to be in perpetuity, subject to such modifications as the general welfare may render expedient.” (Western Cherokees v. United States, 27 C. Cls. R., 1, 29.)
This declaration was an heroic resolve amid the most adverse circumstances to preserve forever the autonomy of the Cherokee people. It was not made in vain for the generation which so resolved. But the ease of affluence and the inevitable demoralization of wealth have accomplished where the military power of the United States and the corrupt methods of their agents failed; and within the passing of less than three generations the perpetuity of the constitution and laws and usages of the Cherokee people will have come to an end.
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 insolvent; that is to say, as a person who should not be intrusted with the receipt and distribution of the moneys belonging to other persons.
The persons to whom distribution of this fund of $1,111,-284.70, with accrued interest, would be made if they were
xV decree will be entered in this case following the form of that Ayhich was entered in the case of Whitmire, trustee, v.‘ Gherokee Nation (30 C. Cls. R., 180). It Avill provide:
That the Cherokee Nation recover upon the agreement Avith the United States concluded on the 19th December, 1891, and ratified by the United States 3d March, 1893 (27 Stat. L., p. 640, § 10), the amounts found due in the account rendered thereunder by the United States, to Avit:
The value of three tracts of land containing 1,700 acres, a-t $1.25 per acre_ $2,125. 00
Amount paid for removal of Eastern Cherokees to the Indian Territory_ 1,111,284.70
Amount received by receiver of public moneys at Independence, Kans-x_:- ' 432. 28
Interest on $15,000 of Choctaw funds, applied in 1803 to relief of indigent Cherokees_ 20, 400. 25
That the amount of $2,125, with interest thereon from February 27, 1819, to date of payment, nevertheless be retained by the Secretary of the Interior and credited by the United States to the principal of the Cherokee school fund in their possession and of Avhich they are trustees;
That the amount of $20,406.25, together Avith interest thereon from July 1, 1893, to date of the restoration of the fund, be likeAvise retained by the Secretary of the Interior and credited to the Cherokee national fund in the possession of the United States and of which they are trustees;
That the amount of $1,111,284.70, together with interest thereon from June 12, 1838, to a day when the Secretary of the Interior shall be ready to make payments, as hereinafter provided, nevertheless be paid directly to communal owners
The decree will also provide for the payment of the fund to the parties per capita, the charge of distribution likewise to be a charge upon the fund.
The decree will also provide for the payment to the treasurer of the Cherokee Nation $432.28, together with interest thereon from January 1, 1874, to date of payment, as likewise set forth in said account.
The decree will also provide for the compensation of counsel and expenses and disbursements incident to the litigation.
Concurrence Opinion
concurring:
Without going into the merits of this controversy on the different treaties made between-the parties to this proceed.! ing and the laws of the United States enacted from time to time affecting the liability and relation of the parties, I come to consider the legal effect of the finding made by the agents and officers of the United States under the agreement of December 19, 1891, described in the act of March 3. (27 Stat. L., p. 640, sec. 10.)
Commencing with the year 1835, in which year the treaty of New Echota was made with the Eastern Band of Cherokee Indians, disputes and differences existed between the United States and the Indians which culminated in the year 1891, when a treaty was made involving the sale and purchase of a district of country amounting in the aggregate to over 8,000,000 acres of land, known as the Cherokee Outlet. Aside from the intrinsic value of the lands there was a most material consideration moving to the United States in the necessity of having that tract of land; and, to the end that the United States might be the owner of that splendid domain of territory, they agreed to pay the Indians
“ The United States shall, without delay, render to the Cherokee Nation, through an agent appointed by authority of the national council, a complete account of moneys due the Cherokee Nation under any of the treaties ratified in the years 1817, 1819, 1825, 1828, 1833, 1835-36, 1846, 1866, and 1868 and any laws passed by the Congress 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 an accounting is incorrect or unjust, then the Cherokee Nation shall have the right within twelve months to enter suit against the United States in the Court of Claims, with the right to appeal to the Supreme Court of the United States, % either party, for any declared or alleged amount of money promised but withheld 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 adjusted in said accounting. And the Congress of the United States shall at its next session after such case shall be finally decided and certified to Congress, according to law, appropriate a sufficient sum of money to pay such judgment to the Cherokee 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 appropriated by Congress, payable to the Cherokee Nation, upon the order of the national council, such appropriation to be made by Congress if then in session, and if not, then at the session immediately following such accounting.”
The subject-matter of the consideration upon the part of the Indians was composed of two elements; in the first they were to receive the sum of $8,300,000, a part of the consideration of the conveyance, and as the second element of consideration they were to receive “ a complete account of the moneys due the Cherokee Nation ” under all the treaties and laws which from 1817 to 1868 had been made or enacted affecting the pecuniary relations of the parties. The account was to be accepted or rejected by the Indians as they might determine. It was known to them that an alleged settlement
Then follows another provision well calculated to operate on the minds of the Cherokee Nation as a special and material inducement to.the making of the treaty or agreement of 1891. “And upon such accounting should the Cherokee Nation by its national council conclude and determine that such an accounting is incorrect or unjust, then the Cherokee 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 declared or alleged amount of moneys.
The consideration therefore-consists of different elements of inducements, and in law those elements constitute and form the basis upon which the agreement rests, and none can be eliminated without the destruction of the entire force of the agreement.
The consideration though in parts and sections is a unit, and to disturb or eliminate one element is to destroy the whole. The consideration is the basis of the contract, and without its preservation as a whole the contract falls. .
The court must therefore assume that without all of the considerations the Cherokee Nation would, not have released to the United States a district of country large enough and rich enough to be one of the States of the Union.'
Much discussion has been indulged in upon the question as to whether the finding which was submitted to the Clierokeo Nation is an award, and if not an award, an account stated. It is not necessary to indulge in black-letter learning upon the legal effect or character of the “ account of moneys due the Cherokee Nation.” It was a statement of the account founded upon the legal theory of the Cherokee Nation, and for which the Indians had struggled through the years from
Upon the question as to whether the account rendered is in law an award or account stated, or whether it is either, is wholly immaterial to the proper settlement of the issue of this proceeding, and it is profitless to sagely balance the common-law question as to what constitutes either. It is sufficient for the 'purpose of this litigation to say that it is a material and lawful part of the consideration of a contract made by and between competent parties upon the subject-matter of which they had plenary jurisdiction.
In this connection it is apt .to quote what the Supreme Court has said in the case of Worcester v. State of Georgia. (6 Peters, 652) :
“ The language used in treaties should never be construed to their prejitdice. If words be made use of which are susceptible of a more extended meaning than the plain import as connected with the tenor of the treaty, they should be-construed as used in the latter sense.
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“ How the words of the treaty were understood by this unlettered people, rather than in their critical meaning, should form the rule of construction. The question may'' be asked, Is no distinction to be made between a civilized and savage people? Are our Indians to be placed upon a footing with the nations of Europe with whom we have made treaties ?
“ The inquiry is not, what station-shall be given to the Indian tribes in this country, but what relation have they sustained to us since the commencement of our Government? We have made treaties with them, and are those treaties to-be disregarded on our part because they were entered into with an uncivilized people? Does this lessen the obligation of such treaties? By entering into them, have we not admitted the power of this people to bind themselves and impose obligations on us ? ”
So, in 5 Wallace, 737:
“ Buies of interpretation favorable to the Indian tribes are to be adopted in construing our treaties with them. Plence a provision in an Indian treaty which exempts their lands from ‘ levy, sale, and forfeiture ’ is not, in the absence of an expression so to limit it, to be confined to a levy and*336 sale under ordinary judicial proceedings only, but it is to be extended to levy and sale by county officers for nonpayment of taxes.”
Congress having failed to pay the amount found due under the treaty of 1891 by the report of Messrs. Slade and Bender, passed an act of 1902, by virtue of which this court has jurisdiction.
The matter of complying with the treaty of 1891 was left by the appropriation act (to defray the expense of furnishing a statement to the Indians) to the Commissioner of Indian Affairs under the direction of the Secretary of the Interior, as shown by the communication.
The Secretary in his communication to the Speaker of the House also transmits “ a certified copy of the Cherokee national council accepting such accounting.”
Up to that point the executive officers of the Government were proceeding step by step in the fulfillment of the promise made in the treaty of 1891, upon the faith of which the United States had acquired and were then in the-enjoyment of the “ Outlet.”
The United States had bought the land of the Indians not for the sum of $8,300,000, but for that sum and other undertakings vital as an inducement to the Indians in making the agreement of 1891.
Courts can not apportion the consideration of a contract and say this is material and that is immaterial; parties have the right to measure the value of what they contract for, and are entitled to have that recognized by the courts.
The Congress in ratification of the plan of settlement, as provided in the treaty of 1891, passed an act. appropriating the sum of $5,000 for the purpose of ascertaining the amount due the Cherokee Nation, and in pursuance of that act the Secretary of the Interior appointed James A. Slade and Joseph T. Bender to state the account then existing between the United States on one hand and the Cherokee Nation on the other, and in pursuance of such appointment and upon the fundamental authority of the agreement with the Indians made an examination, and upon the result of that examination made a report of the indebtedness of the United
report Secretary of the Interior transmitted to Congress, through the Speaker of the House, the report of the expert accountants in the following communication:
DEPARTMENT OE THE INTERIOR,
“Washington, January 7th, 1895.
Sir : I have the honor to herewith transmit, in compliance with the provisions of the third subdivision of article two of the agreement made December 19th, 1891, with the Cherokee Indians, ratified by the act of Congress approved March 3rd, 1893 (27 Stats., 643), a certified copy of a complete account of money due the Oherohee Nation under any of the treaties made in the years 1817, 1819, 1828, 1835-6, 1846, 1866, and 1868, 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 of said act of March 3rd, 1893, together ivith a certified copy of the Cherokee national council accepting such accounting. “
Very respectfully,
“ Hoke Smith, Secretary.
“ The Speaker op the House op Representatives.”
The account when rendered to the Cherokee Nation proved acceptable to it and upon the faith of its acquiescence in the report, as shown by the letter of the Secretary of the Interior, the council of the nation passed a formal acceptance of it.
If the United States were dissatisfied with the report of Slade and Bender, the dissatisfaction should have been manifested as soon as it was known to the authorities of the United States, who had in charge the matter, and not after the .Cherokee council had formally accepted the report as a correct statement of the account between the parties, and a formal delivery to the Cherokee Nation of a part of the consideration on which the bargain and sale of the land were made.
The report which was to be furnished to the Indians for their acceptance or rejection has incident to it another important qualification, and that is if the Indians were dissatisfied with the statement of moneys due then they had the right to bring a suit against the United States within twelve months to settle by judicial determination the respective right of the parties. Relying on the good faith of the Government, the council of the Cherokee Indians accepted the. statement of Slade and Bender and thereby waived the right to bring a suit against the United States;'and, that right being waived, founded on the action of the United States, are they not now estopped from denying the legal effect of their own act ? The Indians were misled by the act of the United States when they assumed that the account after acceptance would be dealt with in pursuance of the other requirements of the treaty. Consider the rights of the litigants in thó light of the law which has been announced for nearly a century b}^ the Supreme Court of the United States,' the fundamental theory of which is that language must never be construed to their prejudice. (Worcester v. State of Georgia, supra.)
The position of the defendants in refusing to abide by the result of the treaty of 1893, consummated as it was by the act of the Cherokee council, the executive officers, and the lawful authorized agents of the United States, is not keeping faith with the wards of the nation in the spirit of that“ justice and reason ” recognized by the courts when dealing with the obligation of the United States as the guardian of the Indian.
“ The relation between the United States and the Indian tribes, being those of a superior toward an inferior who is under its care and control, its acts touching them and its promises to them, in the execution of its own policy and in the furtherance of its own interests, are to be interpreted as justice and reason demand in cases where power is exerted by the strong over those to whom they owe care and protection. (United States v. Kagama, 118 U. S., 375, cited and applied.) ”
I concur in the result reached by the court as exemplified in the .opinion of the Chief Justice.
Concurrence Opinion
concurring:
I concur in the conclusion of the court that there should be .a recovery against the United States for the several amounts found due by the experts, Slade and Bender, but in my view of the case that conclusion should be sustained upon the theory, or assumption, as the experts say, “ that' the United States was to pay the expense of removal ” of the Eastern Cherokees from their eastern home to the Indian Territory.
If the United States are so liable, then the defendants concede that the account as stated by Slade and Bender is correct.
The first and main question to be determined, therefore, is as to the liability of the United States, and it is conceded that if such liability exists it arose under the treaties of 1835-36 and 1846 (7 Stat. L., and 478, and 9 Stat. L., 871).
To interpret correctly the treaty of 1835-36 within the spirit of the decisions of the Supreme Court, it is essential to know how the Cherokee people understood the terms of the treaty and whether they had probable grounds for such understanding.
Practically from the beginning of the Government — to make room for white settlers — it was the policy of the United States to encourage the removal of the Indians domiciled in the Eastern States to the territory west of the Mississippi River. This policy is now manifest from the various trea
By the treaty of 1817 with the Cherokee Indians (7 Stat. L., 156), in furtherance of promises previously made by the President that those Indians who desired to continue the life of hunting instead of settling down to agriculture and civilized life, should have homes in the West on the waters of the Arkansas and White rivers (to which some of the Indians had migrated), it was provided in article 6, in addition to the compensation therein provided for the improvements left by them, that to aid in their removal the United States agreed “ to furnish flat-bottomed boats and provisions sufficient for that purpose. * * * The boats and provisions promised to the emigrants are to be furnished by the agent on the Tennessee River, at such time and place as the emigrants may notify him of; and it shall be his duty to furnish the same.”
By the treaty of 1828 with the Western Cherokees (7 Stat. L., 311) who had migrated to Arkansas Territory under the promise of the President and the treaties of 1817 and 1819, whereby the lands of the Western Cherokees in that Territory were exchanged for lands in the Indian Territory, the United States by article 8, to encourage the Cherokees residing East to join their brothers in the West, agreed in addition to giving them certain specified articles, to pay the cost of their emigration and to furnish them with provisions for their support on the way and provisions for twelve months after their arrival at the agency, and in addition thereto to give each person who took along with him four persons as emigrants and permanent settlers the sum of $150.
Thus, in addition to paying the expenses of removal and subsistence as there stated, the United States agreed, by way of encouraging them to induce others to migrate, to pay a bonus to each individual taking four such persons with him.
The treaty of 1833 (7 Stat. L., 414), as provided by article 5 thereof, was supplementary to the treaty of 1828 and
It was not only the policy of the United States, as before stated, to encourage the removal of the Indians westward, but it ivas their policy to pay the expenses of their removal and their subsistence, as shown by the treaties with the Choctaws in 1820 (I Stats. L., 210) ; with the Creeks in 1826 (I Stats. L., 286) ; with the Chickasaws in 1832 .(7 Stats. L., 381) ; with the Seminóles in 1832 (7 Stats. L., 368), and with the Delawares and the Delawares and Shawnees in 1829 and. 1832 (7 Stats. L., 327 and 397). Can it be doubted that what was thus done was well known to the Cherokee Indians at the time of the treaty of 1835 ? Indeed, when a draft of the latter treaty was first submitted to them in general council at Red Clay, October 23, 1835, there was read and interpreted to them a letter from President Jackson in which, among other things, he said “ for the removal, at the expense of the United States, of your whole people; for their subsistence for a year after their arrival in their new country, and for a gratuity of $150 to each person.” (H. R. Docs., vol. 7, No. 286, p, 41, 24th Cong., 1st sess.)
And so the eighth article of the treaty of 1835 provided:
“ The United States also agree and stipulate to remove the Cherokees to their new homes and to subsist them one year after their arrival there and that a sufficient number of steamboats and baggage wagons shall be furnished to remove them comfortably, and so as not to endanger their health, and that a physician well supplied with medicines shall accompany each detachment of emigrants removed by the Government. Such persons and families as in the opinion of the emigrating agent are capable of subsisting and removing themselves shall be permitted to do so; and they shall be allowed in full for all claims for the same twenty dollars for each member of their family; and in lieu of their one year’s rations they shall be paid the sum of thirty-three dollars and thirty-three cents if they prefer it.
“ Such Cherokees also as reside at present out of the nation and shall remove with them in two years west of the Mississippi shall be entitled to allowance for removal and subsistence as above provided.”
But for article 15 of the treaty it must be conceded that the Government had obligated itself to defray the cost of removal and subsistence, and this was' not only in conformity with what the Government had theretofore done respecting the removal of other Indian tribes, but was in conformity with the promise of the President made to the Indians in general council when a draft of the treaty was first submitted to them at Bed Clay some two months before, in substantially the same form in which it was finally signed at New Echota in the State of Georgia.
Now, keeping in mind what has been said respecting the understanding of the Cherokee people as to who was to pay the cost of their removal and subsistence, turn to article 15, which provides:
“Article 15. It is expressly understood and agreed between the parties to this treaty that after deducting the amount which shall be actually expended for.the payment for improvements, ferries, claims for spoliations, removal, subsistence, and debts, and claims upon the Cherokee Nation, and for the additional quantity of lands and goods for the poorer class of Cherokees and the several sums to be invested for the general national funds provided for in the several articles of this treaty, the balance, whatever the same may be, shall be equally divided between all the people belonging to the Cherokee Nation east, according to the census just completed; and such Cherokees as have removed west since June, 1833, who are entitled by the terms of their enrollment and removal to all the benefits resulting from the final treaty between the United States and the*343 Cherokees east, they shall also be paid for their improvements,- according to their approved value, before their removal, where fraud has not already been shown in their valuation.”
Between the provisions of that article and those of article 8, respecting the cost of removal, there is a conflict, and if the ordinary rules of construction applicable to contracts between individuals are enforced, then it must be conceded that the cost of removal was properly charged to the treaty fund. However, after this treaty had been signed, but before its ratification, a controversy arose as to whether the provisions of the treaty obligated the United States to pay the cost of removal, the Cherokee people insisting that the United States were so bound; and hence supplementary articles were entered into, which, so far as material to this case, are as follows :
“Aetiole 2. Whereas the Cherokee people have supposed that the sum of five millions of dollars, fixed by the Senate in their resolution of — day of March, 1835, as the value of the Cherokee lands and possessions east of the Mississippi Elver, was not intended to include the amount which may be required to remove them, nor the value of certain claims which many of their people had against citizens of the United States, which suggestion has.been confirmed by the opinion expressed to the War Department by some of the Senators who voted upon the question, and whereas the President is willing that this subject should be referred to the Senate for their consideration, and if it was not intended by the Senate that the above-mentioned sum of five millions of dollars should include the objects herein specified, that in that case such further provision should be made therefor-as might appear to the Senate to be just.
“Article 3. It is therefore agreed that the sum of six hundred thousand dollars shall be, and the same is hereby, allowed to the Cherokee people, to include the expense of their removal, and all claims of every nature and description against the Government of the United States not herein otherwise expressly provided for, and to be in lieu of the said reservations and preemptions and of the sum of three hundred thousand dollars for spoliations described in the first article of the above-mentioned treaty. This sum of six hundred thousand dollars shall be applied and distributed agreeably to the provisions of the said treaty, and any sur*344 plus which may remain after removal and payment of the claims so ascertained shall be turned over and belong to the education fund.
“ But it is expressly understood that the subject of this article is merely referred hereby, to the consideration of the Senate, and if they shall approve the same then this supplement shall remain part of the treaty.”
The Senate-agreed to the supplementary articles and the treaty as thus supplemented was ratified and subsequently promulgated. Thus the supposition of the Cherokee people that the United States were to bear the cost of removal was conceded by the Senate (which had fixed the value of their lands and possessions at $5,000,000) to be well founded, for upon the basis of the cost of removal, as stated in article 8, the sum agreed upon was thought to be sufficient, and if'it had been the controversy in that regard would have ended there. The allowance of $000,000 was not in the nature of a gratuity, but was in furtherance of a right which the Senate conceded.
The grounds for allowing the sum of'$600,000, as recited in the second supplementary article, were that the Cherokee people supposed that the sum of $5,000,000 so fixed by the Senate as the value of their lands and possessions “ was not intended to include the amount which may be required to remove them,” and in the third supplementary article it was “ therefore agreed that the sum of six hundred thousand dollars shall be, and the same is hereby, allowed to the Cherokee people to include the expense of their removal ” and certain other claims there stated. And it was therein expressly understood that if said article should be approved by the Senate, “ then this supplement shall remain part of the treaty.”
Inasmuch, therefore, as the basis of that allowance was the belief of the Cherokee people that the $5,000,000 fixed by the Senate as the value of their lands and possessions “ was not intended to include the amount which may be required to remove them, etc.,” I am of the opinion that the supplementary articles necessarily operated to modify article 15 by eliminating therefrom the word “ removal,” thereby harmonizing that article with article 8. Certain it is that when the Senate
In the case of Cherokee Nation v. Georgia (5 Pet, 1, 15) the court, by Chief Justice Marshall, some four years before the treaty of 1835, in speaking of the controversy between the Cherokee Nation and the State of Georgia, said:
“ If courts were permitted to indulge their sympathies, a case better -calculated to excite them can scarcely be imagined. A people once numerous, powerful, and truly independent, found by our ancestors in the quiet and uncontrolled possession of an ample domain, gradually sinking beneath our superior policy, our arts, and our arms, have yielded their lands by successive treaties, each of which contains a solemn guaranty of the residue, until they retain no more of their formerly extensive territory than is deemed necessary to their comfortable subsistence. To preserve this remnant the present application is made.”
And further along in the same opinion, in referring to. the tribes which reside within the acknowledged boundaries of the United States, it is said:
“ They may more correctly, -perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.
“ They look to our Government for protection, rely upon its kindness and its power, appeal to it for relief to their Avants, and address the President as their great father.”
In the later case of Worcester v. Georgia (6 Pet., 515, 582), Mr. Justice Washington, in a concurring opinion, said:
"The language used in treaties with the Indians should never be construed to their prejudice. If words be made use of which are susceptible of a more extended meaning than their plain import, as connected with the tenor of the treaty, they should be considered as used only in the latter sense."
. Notwithstanding the Indians were required by the provisions of article 16 of that treaty to remove within two years, only a small minority migrated prior to 1837-38. But the expense of the removal and subsistence of that minority, together with the other expenditures chargeable thereto, nearly exhausted the $600,000 allowed by the third supplementary article, so that it became necessary to make a further appropriation to defray the expenses of removal and subsistence of those thereafter migrating. The expense of such removal and subsistence was estimated by the Secretary of War, and thereafter the Congress, by the act of June 12, 1838, appropriated the sum so estimated as“ in full of all objects in third article of supplementary articles of treaty of 1835 with the Cherokees; ” and in the same paragraph it was recited that “ No part of said money shall be deducted from the five million dollars stipulated to be paid to said tribe by said treaty.” If not to be so deducted, then it certainly follows that the United States were to pay the cost of such removal and subsistence ; not a part of it, but the whole of it.
Notwithstanding the provision thus made the Indians were, still opposed to removal, but when confronted with the military forces under General Scott, they fijially yielded and an arrangement was entered into whereby they were nearly all removed to the Indian Territory by the fall of 1838. The cost of this removal and subsistence largely exceeded $1,000,-000, and of the sum paid by the United States $1,111,284.70 was charged to the treaty fund; hence the cause of complaint.
Soon after their removal trouble arose between them and the Western Cherokees, as well as those Cherokees who had been signatory parties to the treaty of 1835 and had migrated thither prior to 1838. The Eastern Cherokees were by far the most numerous, and though they repudiated the treaty .of 1835 and charged that those who had entered into it
In 1838, in national convention assembled, the people comprising the Eastern and Western Cherokee nations were, by mutual agreement, united into one body politic under the style and title of the Cherokee Nation, and in that name it was agreed that all rights and titles to Cherokee public lands east or west of the Mississippi Ni ver, -together with all of their interests which may have vested in either branch of the Cherokee family, whether inherited or derived from any other source, should vest unimpaired in the Cherokee Nation.
Soon thereafter the reunited Cherokees adopted a constitution, declaring that the two branches had become reunited and that “ the lands of the Cherokee Nation should remain common property.”
• Such declared union, however, did not have the effect of allaying the difficulties between the two factions. Extreme measures were being resorted to by both factions to accomplish their ill-conceived purposes, and at the same time the Eastern Cherokees were claiming that the expense of their removal and subsistence should be borne by the United States.
These differences, bordering on bloodshed as between the two factions, and the increasing hostility of the Eastern Cherokees toward the United States for charging them with the cost of. removal and subsistence, led to the treaty of 1846 (9 Stat. L., 871). The preamble to that treaty recites that the purpose of the treaty was to effect a final and amicable, settlement of the claims in controversy between themselves and between them and the United States; and to that end it was in substance agreed that the lands occupied by the
In respect to the cost of subsistence the Senate decided that the United States should bear the expense, and there was accordingly restored to the treaty fund the sum of $189,422.76, but the provision requiring the Uixited States to pay the cost of removal xvas rejected by the Senate. The treaty as thus modified and ratified xvas acquiesced in by the Indians. But the delay of the Government in causing a fair and just settlement to be made of all moneys due the Indians under the treaty of 1835, which by the treaty of 1846 the Government had agreed to make, caused dissatisfaction among the Indians, and they petitioned Congress to carry out the provisions of the treaty.
“Provided, however, That the sum now appropriated shall be in full satisfaction and a*final settlement of all claims and demands whatsoever of the Cherokee Nation against the United States, under any treaty heretofore made with the Cherokees. And the said Cherokee Nation shall, on the payment of said sum of money, execute and deliver to the United States a full and final discharge for all claims and demands whatsoever on the United States, except for such annuities in money or specific articles of property as the United States may be bound by any treaty to pay to said Cherokee Nation; and except, also, such moneys and lands, if any, as the United States may hold in trust for said Cherokees: And frovided, further, That the money appropriated in this item shall be paid in strict conformity with the treaty with said Indians of sixth August, eighteen hundred and forty-six.”
In 1852, in conformity with the provision authorizing settlement to be made, the sum so appropriated, together with the further sum of $189,422.76 theretofore allowed for subsistence, making in all $912,026.13, was — though the Cherokee Nation entered its protest to the settlement on the basis proposed — paid to the Cherokees, for which a receipt was executed in full as provided in the act. Thus the long and persistent controversy between the Cherokee Nation and the United States was, notwithstanding said protest, supposed to be adjusted and settled as provided by the act.
If the matter had rested there the controversy between them would have been at an end, notwithstanding the pro
The other provisions of the treaty are not material to this case, but in transmitting the treaty the commissioners on the part of the United States reported to the President by way of explanation — doubtless to induce the ratification of the agreement — that in the relinquishment of the title to the land it was made a condition precedent that the United States should render to the Cherokee Nation a complete account of .moneys due to the Nation under treaties as stated in the fourth subdivision of article 2 above quoted, and this, they say, “ because the Cherokees are compelled to accept the construction of the treaties made by the executive and administrative branches of the Government,” and that “ whatever that construction is, the Indians must abide by it,” there being “ no appeal except to Congress.”. The commissioners also reported that the Indians “ claimed 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; ” and that as the Government had kept the books and construed the treaties, no harm could come from restating the account, for if not theretofore correctly stated “ no possible reason can exist why the error should not be corrected.” (Senate Ex. Doc. 56, 52d Cong., 1st sess., pp. 11 and 12.)
The agreement so entered into was approved, by the Cherokee national council January 4, 1892, and ratified by the Congress by the act of March 3,1893 (27 Stat. L., 640). By the same act the sum of $5,000 was appropriated “ to enable the Commissioner of Indian Affairs, under the direction of the Secretary of the Interior, to employ such expert person or persons to properly render a conxplete account to the Cherokee Nation of moneys due said nation, as required in the fourth subdivision of article 2 of said agreement,” set out above.
Therefore, as part consideration and inducement for the sale of the land, the United States agreed that they would
The Cherolcees insisted upon the payment of the amount found due, but a question arose as to whether the experts had not exceeded their authority in so construing the treaties as to render the United States liable for the cost of the removal and then stating the account accordingly. It was contended then, and is now, that no question of law 'was submitted to them for decision; that they were merely to state the account as it existed, and this, it seems to me, is the correct view. The experts, however, in the account respecting the cost of removal, say:
“ The cost of removal and subsistence prove to be very much larger than was expected and provided for by the appropriation. The excess cost of subsistence over the amount appropriated has been refunded to the Cherokee Nation; but upon the assumption that the United States was (were) to pay the expense of removal there is due the Cherokee fund the sum of $1,111,284.70.”
That amount, it will be noted, is stated as due upon the assumption of the liability of the United States to pay the cost of removal. That liability the Congress desired determined, and for that purpose, in the act of July 1,1902 (32 Stat. L., 717), making provision for the allotment of land to the Cherokee Nation and for other purposes, section 68 was incorporated in these words:
“ Seo. 68. Jurisdiction is hereby conferred upon the Court of Claims to examine, consider, and adjudicate, with a right of appeal to the Supreme 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 thereof, 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 examine, consider, and adjudicate any claim which the United States may have against said tribe, or any band thereof. The institution, prosecution, or defense, as the case*353 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 manner prescribed in sections twenty-one hundred and three and twenty-one hundred and six, both inclusive, of the Eevisecl 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 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 determination of the matter in controversy, and any such suit shall, on motion of either party, be advanced on the docket of either of said courts and be determined at the earliest practicable time.”
Under that act the Cherokee Nation filed the petition herein, claiming the several amounts stated in the account so rendered under the direction of the Secretary of the Interior as an award, and asked interest thereon at 5 per cent per annum from June 12, 1838. But doubts were enter-, tained as to whether under that act the Eastern Cherokees could be made parties to the action, and so by the act of March 3, 1903 (32 Stat. L., 996), making appropriation for the Indian Department, section 68 was amended as follows:
“ Section sixty-eight of the act of Congress entitled ‘An act to provide .for the allotment of lands of the Cherokee Nation, for the disposition of town sites therein, and for other purposes,’ approved July first, nineteen hundred and two, shall be so construed as to give the Eastern Cherokees, so called, including those in the Cherokee Nation and those who remained east of the Mississippi Eiver, acting together or as two ‘bodies, as they may be advised, the status of a band or bands, as the case may be, for all the purposes of said section: Provided, 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 upon 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 instituted against the United States under said section upon the claim mentioned in House of Eepresentatives Executive Document Numbered Three liun-*354 clred and nine of the second session of the Fifty-seventh Congress; and if said claim shall be sustained in whole or in part the Court, of Claims, subject to the right of appeal named in said section, shall be authorized to render a judgment in favor of the rightful claimant, and also to determine as between the different claimants, to whom the judgment so rendered 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 remained east of the Mississippi River constitutes a part of the Cherokee Nation, or of the Eastern Cherokees, so called, as the case may be.”
Under the amended section the Eastern Cherokees appeared by counsel and filed their petition, claiming that they were entitled to the amount stated in the account so rendered under the direction of the Secretary of the Interior, for the cost of their removal to the Indian Territory, with interest thereon at 5 per centum from June 12, 1838. Still another class, known as Eastern and Emigrant Cherokees, appeared by counsel and filed their petition, in which they claimed one-fourth of the amount stated as the cost of removal of the Eastern Cherokees to the Indian Territory. Therefore, the Cherokee Nation, as well as the Eastern and all other Cherokees claiming any interest in the subject-matter of the litigation, appear to be in court as required by the jurisdictional act.
The claim thus referred to as “ mentioned in H. it. Executive Document No. 309 of the second session of the Fifty-seventh Congress,” is, as stated in the resolution of the House of Representatives, December 16, 1902, as follows: “ The award rendered under the Cherokee agreement of December 19, 1891, ratified by act of Congress approved March 3, 1893,” and more particularly set forth in H. R. Executive Document No. 182, Fifty-third Congress, third session, pages 1, 32, and the findings of fact of the Court of Claims of April 28, 1892, which latter are substantially the findings of fact in the present case.
The foregoing findings of fact were made and reported to Congress in response to the resolution of the United States Senate referring to the Court Senate bill No. 3681, provid
Notwithstanding the report of the experts and the findings of the court were before the Congress, they did not see fit to make the appropriation to pay the amount found due, but instead referred the claim to the court for adjudication.
What, then, was referred to the court for adjudication? It is conceded in the court’s opinion that the amount found due has none of the elements of an award nor of an account stated, but that as the rendition of the account was made a part of the consideration for the sale of the Cherokee Outlet it is binding on the United States, and therefore the court can not go behind the account so rendered. That Congress did not take that view of the account is evident from their passage of the two acts conferring upon the court jurisdiction “ to examine, consider, and adjudicate * * * any claim which the Cherokee tribe, or any band thereof, arising under treaty stipulations, may have against the United States.” The agreement of 1891, ratified by the Congress, respecting the rendition o'f an account, is that “ The United States shall, without delay, render to the Cherokee Na-, tion * * * a complete account of moneys due the Cherokee Nation under any of the treaties ” therein referred to, and if the Cherokee council should “ determine that such accounting is incorrect or unjust,” the Cherokee' Nation should then have the-right, within twelve months, to enter suit in the Court of Claims against the United States. This it did not do, but instead accepted the account and thereby waived its right to sue. But were the United States bound to accept the account, based as it was upon the assumption
In my view of the case, as before stated, the supplementary articles to the treaty of 1835 operated to modify article 15 thereof by eliminating therefrom the word “ removal ” and with that word eliminated the United States were liable under the treaty of 1835 for the expense of removing the Eastern Cherokees to the Indian Territory; and such was evidently the view of Congress by the act of June 12, 1838, making appropriation to pay the sum estimated by the Secretary of War as necessary to defray the expenses of removal and subsistence hereinbefore referred to, in which, in the same paragraph, it is recited that “ No part of said money shall be deducted from the five million dollars stipulated to be paid to said tribe by said treaty ” (1835). That language seems to justify the views I have expressed and may well be considered in its effect as a legislative construction of the treaty of 1835. In addition thereto Congress made appro
I therefore reach the conclusion that the assumption of the experts, that the United States were liable for the cost of removal, was well founded, and that the amount found due by them upon that theory is correct, as conceded by the defendants.
The next question is, To whom should the money be paid ? It is conceded that the Cherokee Nation is entitled to recover under the treaty of 1819 and the treaty of 1866, and also certain interest under the act of Congress of March 3, 1893, the several sums set forth in the report of the experts, the disposition of each of which is correctly dealt with in the opinion of the court.
In respect to the sum of $1,111,284.70 for the expense of moving the Eastern Cherokees to the Indian Territory, that sum, if ;t had not been charged to the treaty fund, would, under the provisions of article 15 of the treaty of 1835, have been “ equally divided among all the people belonging to the. Cherokee Nation east, according to the census just completed,” while the ninth article of the treaty of 1846, after providing for deductions for money properly expended under the treaty of 1835, provides that:
“ The balance thus found to be due shall be paid over, per capita, in equal amounts, to all those individuals, heads of families, or their legal representatives, entitled to receive the same under the treaty of 1835 and the supplement of 1836, being all those Cherokees residing east at the date of said treaty and the supplement thereto.”
Hence whatever sums were properly chargeable under the treaty of 1835 were also chargeable under the ninth article of the treaty of 1846, and the balance remaining was to be equally -divided as above stated; while in respect to those Cherokees remaining east it was. expressly provided by article 10 of the treaty of 1846 — though they were not parties thereto — that nothing in said treaty “ shall be so construed
But by article 4 of the treaty of 1846, it is provided, in respect of the Western Cherokees, that in consideration of the cession by them of their interest in the lands east and west of the Mississippi River, including the 8,000,000 acres ceded by the treaty of 1835 — all of which was to remain the common property of the whole Cherokee people — after all the investments and expenditures properly chargeable to the $5,600,000 granted by the treaty of 1835 had been deducted, that a sum equal to one-third part of said residuum should be distributed per capita to each individual of the Western Cherokees, and that in estimating the expense of removal and subsistence of the Eastern Cherokees the sum stipulated as commutation therefor in article 8 of the treaty of 1835 be adopted.
Inasmuch, therefore, as the cost of removal, $1,111,284.70, was charged to the treaty fund in the settlement thus made, the Cherokees, both east and west, received less than they would have received but for such deduction. Hence, when that sum is restored to the treaty fund the whole Cherokee people will be entitled to share in the sum so restored, the same as they would have been at the time of the treaty of 1846, plus whatever interest may now be added thereto.
The sum thus restored becomes a trust fund in the hands of the United States, not for the purpose of investment nor to be held by them, but for the sole purpose of distributing the same to the Cherokee people, as provided by the treaties of 1835 and 1846.
By Revised Statutes, section 1091, this court is inhibited from allowing interest on any claim “ unless upon a contract expressly stipulating for the payment of interest.” There is no provision in either of the treaties of 1835 or 1846 respecting the payment of interest, except on the specific sums to be invested as provided by the treaty of 1835, and the court must therefore look elsewhere for authority, if interest is to be allowed.
As the act of February 27, 1851, supra, under which the settlement of 1852 was made, authorized the payment of interest from June 12, 1838, to April 1, 1851, on the sum appropriated, it may fairly be assumed that if the sum of $1,111,281.70 now in controversy had then been settled, interest would have been paid thereon as provided by the act. But that act has performed its office and the court can not look thereto for the payment of interest, even for the period stated, so that I have grave doubts as to whether there is any provision of law authorizing the court to allow interest on said sum, however much I may think it ought to be allowed; but for the purposes of this case I will assume the allowance of interest and the correctness of the distribution, as set forth in the court’s opinion.
Dissenting Opinion
dissenting:
I do not concur in the opinion nor the conclusion of the majority of the court concerning the expense of the removal of the Indians. It is not strictly accurate to say that the $1,111,281.70 of the Slade and Bender account is part consideration for the sale of the Outlet, for that item had no existence .until Slade and Bender made an account that was never in the records.
The stipulation relative to the existing dispute about the subject of removals was part of the agreement for such sale, and to that .extent may be treated as entering into the inducement or consideration for such sale, but the rights of the parties created by the contract could not be enlarged nor
All that was contemplated by the fourth subdivision of article 2 of the agreement of December 19, 1891, was a statement of the account of moneys due the Cherokee Nation under any of the treaties ratified in the years 1817, 1819, 1825, 1828, 1833, 1835, 1836, 1846, 1866, and 1868, and any laws passed by the Congress for the purpose of carrying said treaties, or any of them, into effect. Upon such accounting being made the Cherokee Nation was given the right within twelve months to enter suit in this court, not for any moneys appearing to be due upon the accounting, but for any alleged or declared amount of money promised but withheld by the United States from the Cherokee Nation under any of the treaties or laws which might be claimed to be omitted from or improperly or unjustly or illegally adjusted in said accounting; or, if it should be found upon said accounting that any sum of money had been so withheld, the amount should be duly appropriated by Congress.
What manifestly was intended by the agreement was that the United States was to state, first, the moneys due to the Cherokee Nation under the treaties specified and the laws passed to carry them into effect, and, second, the disposition in fact made of such moneys — not what ought to have been done, but what was- done. In other words, the account should state the various sums so appropriated, so that it would appear in a precise and compact form how much money was due the Cherokee Nation under the treaties and laws mentioned and the disbursements thereof in fact made by the United States.
This was the view taken by the Interior Department before Congress ratified the treaty in the report of the Commissioner of Indian Affairs, communicated to Congress, and upon which was made the appropriation of March, 1893, of $5-,000 to employ such expert persons to properly render a complete account to the Cherokee Nation of moneys due, as required in the fourth subdivision of article 2 of the agreement. The report upon which the Congress acted in making
The defendants agreed to inform the Cherokee Nation how much money was due to them under the various treaties and laws, and how much, for what purpose, and in what maner it had been paid out, thus forming a basis for the nation, to come into this court and bring suit, not merely for a sum or balance appearing to be due on the face of such account, but to dispute the account, allege and declare an amount of money promised and withheld, or., in other words, that the United States had diverted or misappropriated an alleged amount, and upon such allegation this court was given jurisdiction to decide and give its judgment.
Slade and Bender, the accountants, mistook their authority, however, and usurped the jurisdiction conferred upon this court and decided the questions intended for this court. They did not merely state the facts of the account as they existed, but changed the facts and undertook to state the account as they thought it ought to have been made. Their
It has been argued that the Secretary of the Interior by transmitting the Slade and Bender account to the Cherokee Nation thereby ratified and gave it effect. This can not be, for the plain reason that he was not the agent of the United States for such a purpose. The only authority conferred upon that officer was to employ such expert person or persons to properly render a complete account as required in the fourth subdivision of article 2 of the agreement.
It ought to require no argument to prove that beyond a mere statement of the existence of the account as in fact kept bjr the Government, a true exhibit thereof, the accounting of Slade and Bender is of no effect whatever. By their attempt to enter upon the jurisdiction so manifestly intended for this court they misled the Cherokee Nation,- and thwarted the intention of the parties to obtain an early adjudication of the matters now before the, court. As soon as this report was called to the attention of Congress it was repudiated, and the matter was again referred to this court in the form now existing, and the case is wholly unaffected by the report of Slade and Bender, except in so far as it exhibits the true state of the account, the record of the facts and acts of the GoArernment, as they actually occurred at the respective times of the various transactions.
By setting aside the accounting of Slade and Bender, as respects the charge for removals, Ave would be brought to a consideration of the case upon its merits, namely, the liability of the defendants for removals under the stipulations of the-treaty of 1835. No subsequent act of Congress changed the treaty in this respect. The appropriations made for such purpose Avere, in Anew of the provisions of the treaty, mere gratuities, and did not bind the defendants to assume further liabilities. Congress might do so, if they saw fit, but no legal obligation was assumed in that regard. Plaintiffs are now here claiming under the treaty of 1835, and it is familiar doctrine that they can not at the same time
If the conclusion reached by the majority of the court is to be accepted as the final award of the moneys claimed in this suit, it will prove the futility of accomplishing any settlement of disputed matters by the mutual agreement of the parties.
Under the provisions of the act of 1851, in the year 1852 $912,026.13 was paid to and accepted by the Cherokee Nation with the express condition that the same should be in full satisfaction and in final settlement of all claims and demands whatsoever under any treaty theretofore made, with certain exceptions in which the present claim is not included. This settlement was fairly entered into and acquittance executed by the plaintiffs in conformity to the provisions of the act mentioned. No reason appears against the validity and binding force of the compromise, and there is none.
Pursuant to the opinion of the court and in conformity with the conclusions of law, ante, the following decree was entered on the 18th May, 1905:
The above causes, on motion and by consent of the parties, having heretofore been consolidated for purposes both of hearing and judgment by appropriate order of this court, came on to be heard upon the pleadings, orders, and proofs, and were argued by Messrs. Charles Nagel, Edgar Smith, and Frederic D. McKenney, on behalf of the Cherokee Nation; Messrs. Eobert L. Owen and William H. Eobeson, on behalf of the Eastern Cherokees; Mrs. Belva A. Lockwood, on behalf of certain individual claimants, styled Eastern and Emigrant Cherokees, and Mr. Assistant Attorney-General Praclt, on behalf of the United States; and the court being now sufficiently advised in the premises, it is, this 18th da}*- of May, A. D. 1905, adjudged, ordered, and decreed that the
Item 1. Tlie sum of_ $2,125.00
With interest thereon at the. rate of 5 per cent from February 27, 1819, to elate of payment.
Item 2. The sum of-1, 111, 284. 70
With interest thereon at the rate of 5 per cent from June 12, 1888, to date of payment.
Item 3. The sum of_ 432. 28
With interest thereon at the rate of 5 per cent from January I, 1874, to date of payment.
Item 4. The sum of_ 20,406. 25
With interest thereon from July 1, 1903, to date of payment.
the proceeds of said several items, however, 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 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-possession of the United States and held by them as trustees.
The sum of $432.28, with interest thereon at the rate of 5 per cent from January 1, 1874, to elate 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 proper 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 pajunent, less 5 per cent thereof contracted by the Cherokee 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 provisions of the con
First. To pay the costs and expenses incident to ascertain-. ing and identifying the persons entitled to participate in the distribution thereof and the costs of making such distribution.
Second. The remainder to be distributed directly to the Eastern and Western Cherokees, 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 sections 2103 and 2106, both inclusive, of the Revised Statutes of the United States, and so much of the amount shown in item numbered two (2) as this court hereafter by appropriate order or decree shall allow for counsel fees and expenses under the provisions of the act of March 3, 1903, above referred to, shall be paid by the Secretary of the Treasury to the persons entitled to receive the same upon the making of an appropriation by Congress to pay this judgment.
The allowance of fees and expenses by this court under said act of March 3, 1903, is reserved until the coming in of the mandate .of the Supreme Court of the United States.