Estate of Winton v. Amos

51 Ct. Cl. 284 | Ct. Cl. | 1916

Lead Opinion

Booth, Judge,

reviewing the facts found to be established, delivered the opinion of the court:

This case comes to the court under special jurisdictional acts. This suit is one by various claimants to recover for services rendered and expenses incurred in securing Mississippi Choctaw Indians the right of citizenship in the Choctaw tribe. The whole controversy extends over a long period of years, is much involved, and the statement of the case must be extracted from a most voluminous record of hundreds of pages of printed testimony, which, together with the briefs of counsel, make up ten printed volumes of considerable size.

The native habitat of the Choctaw Indians was in the South, principally in what is now the State of Mississippi. On September 27, 1880, the United States concluded with the Indians what is known as the “Dancing Babbit Creek treaty,” 7 Stat. L., 338. The principal intent, indeed, the lasting benefit, to be secured to the United States by the terms of the treaty was the removal of the main body of the tribe to Indian Territory. This was to be accomplished by an interchange of landed estates, the Indians relinquishing all title to their eastern possessions for a reservation in the West. In a spirit of evident compromise, and as an inducement for the final consummation of the undertaking, the Indians, always loath to depart from their native lands and surroundings, secured a reservation in the stipulations of the instrument which in the end gave birth to this litigation.

Article 14 of the Dancing Rabbit Creek treaty provided a method by which such Choctaws as chose to avail themselves of the provision might remain in the east and become citizens of the States wherein they resided. Those who did so were to be allotted a certain acreage of land varying in extent according to the number of children in the family. Upon these various allotments a residence of five years was an indispensable condition precedent to the acquirement of a fee-simple title; and it was expressly set forth that all Indians remaining in the State should be considered as intending to become citizens thereof. The final clause of article 14 created the condition which not only occupied the attention of Congress and the Indian Office for many years, but also erected the issue for the settlement of which all the claimants herein claim some compensation. It is in the following language:

“ Persons who claim under this article shall not lose the privilege of a Choctaw citizen, but if they ever remove they are not to be entitled to any portion of the Choctaw annuity.”

The number of Indians remaining in Mississippi after the emigration of the tribe is indeterminate. Those that did so remain adopted the habits, customs, and dress of the white inhabitants of the State; all tribal laws were abolished; all Indian communal association was discontinued; and they were absorbed into the body politic of their respective communities. The Government assumed no jurisdiction over them and the Congress made no appropriations for them. They were treated, in so far as the United States was concerned, as citizens of the State of Mississippi and of the United States. The State of Mississippi also recognized by positive legislation their status as citizens of the State. The State Legislature by an act passed January 19, 1830, abolished all Indian tribal relations and laws theretofore prevailing among the Indians and made them citizens of the State. This legislation was ratified by the constitution of 1832, reenacted in 1840, and carried into the Mississippi Code of 1848.

All doubt as to their civil and political status, which is an important fact in this case, was finally removed by the sixth section of the act of February 8, 1887, 24 Stat. L., 390, which conferred citizenship upon all Indians living apart from their tribe and who have adopted the habits, etc., of the white man with intent to become citizens of the United States. The act of 1887 was amended by the act of March 3, 1901, 31 Stat. L., 1447, extending citizenship to Indians in Indian Territory.

The Choctaw Nation of Indians west for many years after their removal to Indian Territory never contested nor even questioned the right of the fourteenth article Mississippi Choctaws to citizenship in the parent tribe. On two different occasions they manifested a positive desire to have their eastern brethren join them in the west, extending to them the privileges of the treaty. In 1889 they memorialized Congress to provide funds for the removal of large numbers of Mississippi Choctaws to their western reservation, and in 1891, by council action, the nation itself appointed a commission and provided funds for their removal, on which occasion at least 181 Indians were removed. There is not in the record a single suggestion of opposition to the treaty rights of the Mississippi Choctaws until some time after the year 1893, when the Government inaugurated, through the Dawes Commission, an extensive inquiry among and negotiation with all the Indian tribes in Indian Territory with the avowed intention of allotting all their lands to them in severalty, distributing their Indian funds, and otherwise discontinuing the long-time relationship of guardian and ward.

Notwithstanding this legislation no violent opposition developed upon the part of the nation west until it became apparent that thousands of mixed-blood Choctaws not residents of Mississippi were seeking enrollment under that legislation. The Choctaw Nation in fact never interposed objection to the enrollment of his eastern brother of the full blood claiming rights under the treaty of 1830, if they in good faith removed to the Territory, until largely through the efforts and constant agitation of the parties claiming here, an attempt was made to procure legislation extending the right of citizenship to these claimant Indians, which would in the aggregate increase their rolls to the extent of 25,000 or 30,000 Indians, including thousands of mixed-blood Choctaws who resided elsewhere than in Mississippi. A ceaseless and persistent effort was made by the claimants herein, not only to procure legislation according these general rights, but at the same time vigorously contesting the requirement of removal to the Territory in any event. This alone prolonged and delayed the rights subsequently accorded the present beneficiaries by Congress.

The Dawes Commission was established by the act of March 3, 1893, 27 Stat. L., 645. It made a very comprehensive report of its proceedings to Congress, and on June 10, 1896, Congress directed the commission to make a roll of the Five Civilized Tribes, and provided that all applicants for enrollment should file their applications with the commission within three months from the passage of this act, with right of appeal to the United States courts.

This legislation was the signal for all the activity thereafter manifested upon the part of all the claimants in behalf of the Mississippi Choctaws. The legislation on its face indicated the conclusion of Indian claims in both funds and lands to the tribal property of the Five Civilized Tribes, of which the Choctaws were one. It was likewise the inspiring cause for persistent opposition to the rights of Mississippi Choctaws under the fourteenth article of the treaty of Dancing Eabbit Creek. It became at once apparent that the admittance of a large body of Mississippi Choctaws to participation in the allotment of the Choctaw lands would proportionately decrease the individual allotment to each member of the western tribe already enrolled, and thus materially diminish the value of their entire estate. The western Indian renounced his former affection for his eastern brother and, reversing the earlier policy of the western tribe, interposed objections to his unqualified citizenship.

The usual Indian controversy arose and innumerable objections and counter-objections predicated upon degree of Indian blood and Indian ancestry, supplemented by arguments pro and con as to the necessity of removal to the Indian Territory on the part of the Mississippi Choctaws, prolonged the settlement of treaty rights and projected the consideration of the whole question through several sessions of Congress. The review of the legislation is quite tedious but indispensable.

Early in 1896 the attention of Congressman (now United States Senator) John Sharp Williams, of Mississippi, within whose district the major number of Choctaw Indians resided, was directed to the rights of his constituents under the fourteenth article of the treaty of Dancing Rabbit Creek. Senator Williams immediately became active; he investigated the subject with great diligence; acquired valuable information from the Interior Department, and prepared, in conjunction with his Mississippi colleagues and other Senators and Congressmen interested in Indian affairs and the Interior Department, many and effective bills and amendments to bills for consideration by Congress, some of which were subsequently enacted into law.

The first of these was a provision inserted in the Indian appropriation act of June 7, 1897, 30 Stat. L., 83, directing the Dawes Commission to investigate and report to Congress whether the Mississippi Choctaw Indians are not entitled to all the rights of Choctaw citizenship under their treaties except interest in the Choctaw annuities.

The commission reported that in view of a decision of the United States Court in Indian Territory requiring the removal to Indian Territory of all Mississippi Choctaw Indians before any right of enrollment accrued, and in view of the debatable question as to tracing ancestry to some person who originally availed himself of the provisions of the Dancing Rabbit Creek treaty, together with the absence of any legal authority on its part to receive additional applications because the date of limitation therefor had expired, it recommended the submission of the whole question to the United States Court of Claims.

In June, 1898, the following Congress, by the twenty-first section of what is known as the Curtis Act, removed the obstructions in the way of the Dawes Commission in the consideration of Mississippi Choctaw claims, under the fourteenth article of the Dancing Babbit Creek treaty, and gave the commission full power and authority to determine the identity of all the Mississippi Choctaw claimants. This legislation restricted the right of citizenship to such Mississippi Choctaws as had theretofore removed to the Territory, reserving to Mississippi Choctaws, however, all rights they might have theretofore acquired under any Indian treaty or law of the United States.

On December 2, 1898, the Dawes Commission caused to be printed and extensively circulated among the Mississippi Choctaws in Mississippi and elsewhere a circular informing them of their rights under the Curtis Act, notifying them of the time and place where the commission would sit to receive applications, and giving in detail the exact manner of procedure necessary to procure identification. In pursuance of the public notices given as aforesaid, one of the commissioners, Mr. A. S. McKennon, visited Mississippi, filled various appointments previously made to meet the Indians, and completed a schedule of 1,923 persons whom he thought entitled to citizenship. The “ McKennon roll ” was constructed upon the theory of according citizenship to all full-blood Mississippi Choctaws whose ancestors were living in Mississippi at the date of the treaty of 1830. The roll was approved by the Dawes Commission, but was later on withdrawn, as it had not met the approval of the Secretary of the Interior, he in fact subsequently disapproving it entirely.

A second commission was dispatched to Mississippi in December, 1900, by the Dawes Commission. The manifest errors and omissions of the McKennon roll made it imperative. This commission held public meetings at Hattiesburg, Meridian, and other places in Mississippi, and continued in session until August, 1901, sometimes at one place and then at another.

On May 31, 1900, 31 Stat. L., 236, Congress further extended the right of enrollment to Mississippi Choctaw Indians duly identified for citizenship in the Choctaw Nation to any time prior to the approval of the final Choctaw rolls then in process of completion by the Dawes Commission, and if such identified Indians made bona fide settlement in the Choctaw country previous to said date the commission was directed to enroll them. This was in effect a substantial extension of time for removal to the Territory. This same act expressly invalidated all contracts or agreements which in any maimer provided for the sale or encumbrance of the Indians’ allotments, a most significant provision and extremely important in the consideration of this case.

For some reason not apparent upon the face of the statute the Dawes Commission invoked a species of technical refinements and in its quasi judicial capacity construed the act of May 31,1900, as prospective in its operation and required all applicants thereunder to trace their ancestry to Mississippi Choctaw Indians who remained in Mississippi and received patents for lands under the fourteenth article of the Dancing Rabbit Creek treaty. It was a most restricted ruling and resulted in the enrollment of but six or seven persons out of from 6,000 to 8,000 applicants.

An attempt was made in February, 1901, to compose the differences as to enrollment by an express agreement between the Dawes Commission and the Choctaw Nation of Indians. The contract, though executed, failed of congressional approval. It was followed, however, by the agreement of March 21, 1902, which, with ,the amendments thereafter adopted by Congress and later ratified by the Choctaw Nation, concluded in all substantial respects the rights of the Mississippi Choctaws to citizenship in the western tribe. This contract, as amended and subsequently approved by Congress by the act of July 1,1902, is known as the Choctaw-Chickasaw supplemental agreement, and closed in all important particulars this long and somewhat furious contest. In the end, by virtue of this agreement, Mississippi Choctaw Indians identified under the provisions of section 21 of the act of June 28,1898 (Curtis Act), might at any time within six months after the date of their identification by .the commission make bona fide settlement within the Choctaw country, and upon proof of the same within one year after the date of identification should be enrolled as a Mississippi Choctaw, and upon approval of the rolls by the Secretary of the Interior became entitled to the same rights, privileges, and allotments of lands as the members of the Choctaw Nation. No application was to be received after six months from the passage of the act, and the commission was specifically directed to enroll “ all full-blood Mississippi Choctaw Indians and descendants of any Mississippi Choctaw Indians, whether of full or mixed blood, who received a patent of land under the said fourteenth article of said treaty of 1830 who had not moved to and made bona fide settlement in the Choctaw-Chickasaw country prior to June 28, 1898.” All the aforesaid Mississippi Choctaw Indians were to be carried upon a separate roll.

In 1903, 32 Stat. L., 982, Congress appropriated $20,000 to be expended under the direction of the Secretary of the Interior in removing indigent and identified full-blood Mississippi Choctaws to the Territory. This appropriation was expended in the removal of 420 Indians by special train and their subsequent subsistence, together with the purchase of tools and farming implements for them, until placed upon their individual allotments.

The final disposition of all Choctaw matters was provided for in the legislation of April 26, 1906, 34 Stat. L., 127, providing for enrollment of the minors and descendants of deceased Indians and covering certain contingencies arising from death of a duly enrolled Indian.

The astounding number of 26,000 persons applied for enrollment as Mississippi Choctaws. The commission rejected all applications except 2,534, and 956 of these failed of allotment because they furnished no proof of removal or settlement in the Indian country; 1,578 persons were finally enrolled and received allotments as members of the Choctaw Nation, having furnished proof of removal to the Territory and otherwise complied with the requirements of the law.

The course of all the above legislation and the rights and privileges secured thereby is of paramount importance in this case. The alleged services rendered by attorneys in a professional capacity and the sums expended by others not lawyers in securing the benefits alleged to have been derived by the same constitute the gravamen of the complaint herein and become the critical inquiry in the case.

Twenty-five claimants prefer individual and partnership claims against the Mississippi Choctaw Indians for participating in all the detailed proceedings above set forth, varying in amount from $5,000 to 15 per centum of $16,000,000, an alleged conservative estimate of the value of the landed estate recovered for the fortunate ones finally enrolled. Eight of the 25 claimants secured at one, time and another 3,224 contracts with individual Indians. These are contracts of employment and representation, and most generally provided for the generous compensation of one-half the value of all the benefits finally accruing to the obligee. The remaining claimants rest their cause of action upon assignments of some of the contracts taken by their colaborers or special employment by the parties having contracts with the Indians. Of course all the claimants are now insisting upon rights under the special jurisdictional acts, and the detailed history of each claim will be adverted to hereafter.

Before adverting to the jurisdictional question raised by the defendants, it is quite necessary to state briefly the surroundings and the physical and mental status of the Mississippi Choctaw Indians from 1830 forward. As appears from the findings they were extremely poor, lived under insanitary conditions, earning their livelihood as best they could by manual labor; their children did not attend the schools provided for the whites, and the extent of their illiteracy is more than manifest from the fact that a great majority of them executed their contracts with claimants by mark. They were childishly unsophisticated, had absolutely no conception of their property rights or any well-considered ideas as to what they should pay to secure them. It was no task to secure their assent to almost any proposition, evidenced by the fact that as a general thing they manifested no compunctions of conscience in duplication of express agreements, and hesitated in acting as frequently as contrary advice was offered. These statements are all deductible from .the record. It is almost incomprehensible to believe otherwise when it positively appears that with apparent ease individual contracts were obtained from these Indians providing for an absolute grant of one-half of their total estate in the event of success, and in such numbers that even the minimum number obtained by one representative would represent a fortune. Attorneys at law, farmers, merchants, bankers, a preacher, and others without any settled vocation in life, were potentially equal before “ these remnants of a once powerful tribe,” and experienced no difficulty in procuring contracts of employment to represent them.

The defendants challenge the jurisdiction of the court, resting a most vigorous contention upon individual contractual liability, asserting the cause of action to be between adverse parties with complete and adequate remedy in the local courts; that the jurisdictional acts simply afford a forum for the adjudication of the claims without in any way changing their real or legal status or imposing liability upon the defendant Indians. The express provisions of the jurisdictional acts are emphasized in support of this contention, and the status of the claim as it appears from the record is cited as a convincing proof that the litigation is between citizens.

There were two jurisdictional acts—one enacted April 26, 1906, 34 Stat. L., 140, the other May 29, 1908, 35 Stat. L., 457. The verbiage of the two statutes in the enacting part is similar in all substantial respects, the later one being expressly designed to admit the prosecution of additional claims by other claimants. It is the directory clauses of the two acts that differ in important particulars, especially as to the manner of enforcing any judgment the court may render. In order to facilitate an intelligent consideration of their provisions we exhibit here the two statutes:

“ That the Court of Claims is hereby authorized and directed to hear, consider, and adjudicate the claims against the Mississippi Choctaws of the estate of Charles F. Winton, deceased, his associates and assigns, for services rendered and expenses incurred in the matter of- the claim of the Mississippi Choctaws to citizenship in the Choctaw Nation, and to render judgment thereon on the principle of quantum meruit in such amount or amounts as may appear equitable or justly due therefor, which judgment, if any, shall be paid from funds now or hereafter due such Choctaws by the United States. Notice of such suit shall be served on the governor of the Choctaw Nation, and the Attorney General shall appear and defend the said suit on behalf of said Choctaws.”

The jurisdictional act was amended by an act approved May 29,1908, 35 Stat., 457, which provides:

“That the Court of Claims is hereby authorized and directed to hear, consider, and adjudicate the claims against the Mississippi Choctaws of William N. Vernon, J. S. Bounds, and Chester Howe, their associates or assigns, for services rendered and expenses incurred in the matter of the claims of the Mississippi Choctaws to citizenship in the Choctaw Nation, and to render judgment thereon on the principle of quantum, meruit in such amount or amounts as may appear equitably and just due therefore, which judgment, if any, shall be paid from funds now or hereafter due such Choctaws as individuals by the United States. The said William N. Vernon, J. S. Bounds, and Chester Howe are hereby authorized to intervene in the suit instituted in said court under the provisions of section nine of the act of April twenty-sixth, nineteen hundred and six, in behalf of the estate of Charles W. Winton, deceased: Provided, That the evidence of the interveners shall be immediately submitted: And provided further, That the lands allotted to the said Mississippi Choctaws are hereby declared subject to a lien to the extent of the claims of the said Winton and of the other plaintiffs authorized by Congress to sue the said defendants, subject to the final judgment of the Court of Claims in the said case. Notice of such suit or intervention shall be served on the governor of the Choctaw Nation, and the Attorney General shall appear and defend the said suit on behalf of the said Choctaws.”

Under the first act the claimant Winton and his associates filed their petition October 11,1906, later amending the same after the passage of the act of May 29, 1908. All the other claimants came in under the last act.

The statutes are in pari materia, the additional remedies as to enforcement of judgment in the later one being made expressly applicable to the earlier claimants.

An analysis of the findings, which discloses the proceedings taken by the various claimants under this jurisdiction, demonstrates beyond peradventure the relationship originally obtaining between the claimants, and defendants and fixes by the acts of the parties themselves what in the absence of some positive law to the contrary would be their respective liabilities under the common law. The jurisdictional act in the first clause refers expressly to two claims— first, the claims of the persons mentioned therein for services rendered and expenses incurred in the matter of the second claim, viz: The Mississippi Choctaws to citizenship in the Choctaw Nation. We have discussed at length the origin and development of the claims of the Mississsippi Choctaws to citizenship in the old nation, leaving now only the additional observation that the services to be rendered in connection with said claim were legislative services of a professional character, and the alleged expenses incurred, in so far as removal of the Indians is concerned, could not accrue until the legislation admitted of their existence. What then is the claim referred ? It is and must be conceded that the jurisdictional act creates no liability against the defendant Indians or the United States. Its function is restricted to the right to sue in a judicial tribunal vested with authority to determine from the controverted questions of law and fact whether under the law the claimants have a legal demand for compensation from the defendants. Green v. Menominee Tribe, 233 U. S., 558.

The defendant Indian in this case never in a single instance, so far as the record shows, solicited one of the various claimants to appear for him professionally or expend a dollar in his behalf. The solicitation was wholly from the claimants. Various ones among them visited the Indian in his Mississippi home and procured by personal contact with him individual contracts to represent him—not a band, tribe, or nation of Indians, but individual citizens of Indian blood, agreeing in writing to pay a certain sum upon the happening of a certain contingency, and not infrequently granting interest in individual property to be acquired as security for the Indian’s performance of his obligation under the contract. They were not only in fact contracts for personal services to be rendered each individual; they were more; they were powers of attorney authorizing substitution of persons other than the named agent to act; they provided for the employment of additional agents and solicitors. The scope of authority obtained by the agent or attorney under these individual contracts was extensive and plenary; no detail had been omitted which might suggest itself to the skilled lawyer or trained claim agent. That this contractual relationship sought by and intended to be created by the claimants was the initial proceeding for binding the defendants in law to the payment of large sums of money is more than manifest by the extensive field of territory covered in the haste to procure individual contracts and the sums expended in their procurement. Numerous contracts were assigned and large sums of money realized therefrom. Companies were incorporated with no other assets save these assigned contracts.

To effectuate the contentions of the defendants with respect to the jurisdictional issue, however, the court must find from the record in the case that notwithstanding the individual contractual relationship the claimants have no justiciable claim. The jurisdictional act refers a claim and if from the record it is ascertainable that a legal demand has been proven to exist, it can not be dismissed simply because its origin was consummated in written agreements for which the jurisdictional act affords no remedy. It is quite possible for a court to render judgment upon the basis of quantum meruit, although the transaction in its inception arose from express agreements fixing specific compensations, especially so where it is within the power of the legislative body granting jurisdiction to prescribe the conditions upon which the defendants may be sued.

That Congress possesses plenary authority over Indian lands and Indians when dealing with respect thereto is not to be denied. From the decision of the case of Lone Wolf v. Hitchcock, 187 U. S., 553, down to the recent case of Tiger v. Western Investment Co., 221 U. S., 286, this principle has been repeatedly affirmed. The last case cited is a very exhaustive opinion covering every phase of the controversy such as suggested here. There can be no room for argument in view of the number of adjudicated cases that the grant of citizenship to the individual Indian is not inconsistent with governmental control and supervision of Indian property or the exercise of governmental jurisdiction over the Indian in respect to his dealings with said property.

Congress by the jurisdictional acts referred to this court the claim of the petitioners and intervenors, and if from the record the court can find the existence of a legal relationship that warrants the rendering of a judgment upon the principles of quantum meruit the consequential liability attaches. Congress has ample authority to charge the Indian lands involved in this case with the payment for services rendered or expenses incurred in securing to the Indians this estate, and the wisdom of their action is not subject to judicial review. Bailey v. Osage Indians, 43 C. Cls., 353; Butler & Vale v. United States, 43 C. Cls., 497; Sac & Fox Indians v. United States, 45 C. Cls., 287; 220 U. S., 481; Mille Lac Indians, 46 C. Cls., 424 ; 229 U. S., 498.

It in no wise militates against this contention that the jurisdictional acts provide for a judgment enforceable against funds due the Mississippi Choctaw Indian as an individual by the United States or creates a lien upon his individual allotment. Congress is dealing with Indian tribal lands, and it can limit, prescribe, and impose such conditions and limitations with respect thereto as in its wisdom seems just and equitable. Heckman v. United States, 224 U. S., 413. In this case the court said:

“ Its efficacy does not depend upon the Indians’ acquiescence. It does not rest upon convention, nor is it circumscribed by rules that govern private relations. It is a representation which traces its source to the plenary control of Congress in legislating for the protection of the Indians under its care, and it recognizes no limitations that are inconsistent with the discharge of the national duty.”

While it is true that the Heckman case was a suit to set aside conveyances and recover for the Indian lands disposed of, still the fundamental principle obtains that Congress may in its discretion administer the Indian property as to it seems just and equitable to the Indian and the white man dealing with him.

On the argument of the case the court experienced some doubt upon the question of jurisdiction, but this doubt has been removed by an examination of the authorities cited. The jurisdictional acts are subject to a practical as well as technical construction. The intention of Congress must prevail, and that intention is manifest from the language of the acts when the situation of the claimants with respect to the subject matter is kept in view. Congress by the act of May, 1900, had invalidated all contracts looking toward a sale or encumbrance of the allottees’ lands. Whether in any event the contracts invalidated or those not invalidated were enforceable against an individual Indian is far from certain. One thing is sure, however, they never could have been made the basis of any suit wherein a judgment rendered thereon could become enforceable against the Indian property. Congress observed the situation of affairs and by the jurisdictional acts referred to this court the question of a legal claim against their wards for compensation upon the principles of quantum meruit.

The case of Green v. Menominee Indians, supra, is not contrary to this holding. The acts are in no wise similar. The service rendered is quite distinct. In the Green case supplies furnished the individual Indian were to be paid for by an arrangement which brought the Indian’s funds into the hands of a third party; for some reason the written arrangement miscarried, and it was sought to impose the failure upon the Indians. Here we have an Indian fund and an Indian estate carried upon the rolls of the departments in the name of the Missisippi Choctaws as a class—a fund and an estate which was the result of negotiation and legislation alleged to have been successfully terminated by the services of the petitioners, and over which Congress has absolute and plenary power in its administration.

Whether this court can render a judgment upon the principles of quantum meruit is quite another matter which necessarily depends upon the proof in each individual case. The claim in suit, as we view it, is an assertion of liability emanating from the performance of service under an express contract, a service performed, a contract executed, an agreement where the plaintiffs have done all they agreed to do under the express agreements, and nothing remains except to pay them therefor. The agreements themselves being invalidated, the service having been performed with the knowledge and consent of the defendants and from which they derived and have accepted benefits, the law implies an obligation to pay what such services are reasonably worth. It has been uniformly held in the cases heretofore cited that jurisdictional acts, similar in most respects to the ones here under consideration, create no liability under the express agreements, the court discarding them in so far as they stipulate for the payment of compensation, leaving for our consideration the determination of the question whether the transaction in all its aspects, taking into consideration the situation of the parties, is one which from the proof satisfies the court that the claimants performed the services claimed for, resulting in benefit to the defendants under such circumstances that the law will imply a correlative obligation to compensate them therefor. The contracts are admissible in evidence, both to establish knowledge upon the part of the defendants and as evidence of what might constitute a reasonable award for the work done. This is what the court understands Congress to mean when it directs a judgment upon the principle of quantum meruit (9 Cyc., 686).

Congress does not by the legislation create the situation necessary to be supplied by proof before the court can act. It affords to the claimants a forum where the burden rests upon them to bring in a record of sufficient strength to sustain a recovery upon the legal principles provided by Congress as the court’s guide.

The judgment, if any, to be awarded is not an individual one. Proof of service to an individual Indian is not sufficient to recover. Congress was not assuming jurisdiction over individual Mississippi Choctaw Indians as Indian citizens, for if such had been the intent his individual right to be heard in defense would not have been, if it could be, denied him. The jurisdictional acts comprehend service to the Mississippi Choctaw Indians as a class, and under their terms the proof must establish a service that extended alike to all the Mississippi Choctaws enrolled as such on the rolls of the old nation. In the language of the jurisdictional acts, it must appear that the service was rendered in connection with and for the avowed purpose of legalizing “the claim of the Mississippi Choctaws to citizenship in the Choctaw Nation.” Incidental work and labor performed for the benefit of individual Indians, no matter how extensive, was not within the contemplation of Congress when a charge was laid against the Indian defendants’ lands and funds, unless it can trace unmistakable benefits accruing alike to each and all of the 1,613 Mississippi Choctaw Indians finally enrolled in the nation and allotted lands under the law.

The matter of the claim of Mississippi Choctaws to citizenship in the Choctaw Nation was a legal controversy between the two Indian parties as to the construction of the fourteenth article of the Treaty of Dancing Rabbit Creek. The determination of this issue must in the first instance rest with Congress. It could not have been the subject of judicial consideration in the absence of legislation. The appeal to Congress brought legislative relief and citizenship was accorded the Mississippi Choctaws. The right to citizenship in the nation was made clear and unambiguous in the respective laws upon the subject, and here the claim itself, in its legal aspect, the real controversy requiring service, the final solution of what rights were reserved to the southern Indians under the disputed article of the treaty, ended. Thereafter it became a personal matter; if the Indian chose to avail himself of the right, the way was open; if he did not, it was a matter of personal judgment. This is plainly substantiated by the failure of nearly 1,000 beneficiaries already identified to remove to the Territory and acquire property.

At some future date the Congress may deem it just and equitable to relieve these Indians identified but not allotted because of failure to remove to the Territory, and by legislation removing the limitation as to time grant them the full rights and privileges accorded the Indians against whom this claim is made. In that event are we to presume the defendant Indians here impleaded are to bear the full cost and expense of procuring a privilege which in the end inures alike to their belated brethren, thus penalizing the diligent and rewarding the negligent ? Legislation of this character is now pending in Congress and is earnestly urged.

The Congress, it is true, in the legislation which accorded this right, imposed upon the individual Indian applicant the performance of certain conditions precedent to its acquirement—viz, removal to the Indian Territory and residence therein, etc., for a certain specified time—but these details of preliminary procedure, indispensable to the fixing of uniformity in the administration of the law, were not and are not merged in the essential thing itself; they constitute no part of the claim to citizenship in the nation. It is simply the mode and method prescribed by which the Mississippi Indian may avail himself of the benefits granted him by Congress in fixing his right of citizenship. By no possible means can it be said that money expended for the removal of from 20 to 60 individual Indians to the Territory redounded to the general benefit of the Mississippi Indians as a class. While it is true they must remove to acquire the right, yet to bring a claim against the class it must affirmatively appear that the service rendered and funds expended benefited all the class alike. The claim for removal is an individual one; it can not be otherwise. Some claimants transported their Indians in box cars, others afforded their clients Pullman sleepers, while still others housed the Indians in temporary shacks, one delegation enjoying the luxury of quarters at local hotels. The Government expended $20,000 in the removal and subsistence of quite a number, and doubtless not a few provided their own means of transportation at their own expense. Certain it is that no one claimant or class of claimants transported all the Indians enrolled or expended sums which come within the range of any rule of uniform expenditure or reasonableness in amount.

All these sums of alleged expenditure occurred subsequent to the acquirement of the right of citizenship and are incidental only to that right. It was personal service rendered to the individual Indian, moneys advanced and expended for his personal benefit, and not a claim recognized by Congress as one chargeable against the Indian lands. In addition to what has been said, it would be an absolute impossibility to reconcile the mass of confusing and contradictory testimony respecting this very subject and decide from the records what would be a reasonable charge for this service. It is beyond question that many individuals repaid some claimants for the moneys advanced for this purpose. Possibly many more, if permitted to do so, could prove a similar payment. It is inconceivable that Congress intended to reimburse claimants for the funds thus alleged to have been expended and provide no means of defense for the individual Indian charged. On the contrary, the very absence of any provision for individual defense and representation upon the part of the individual Indian manifests an indisputable intention to limit the jurisdiction of the court to an ascertainment of services rendered and expenses incurred which accrued alike to the Indians as a distinct entity and capable of being equitably apportioned among them.

The claim of Charles F. Winton, as we now consider it, is predicated upon alleged services rendered the Mississippi Choctaws in conjunction and association with Robert L. Owen, Preston S. West, Walter S. Logan, deceased, Frank B. Crosthwaite, and John Boyd. West, Logan, Crosthwaite, and Boyd prefer no individual claim; in fact, file no individual petitions. Whatever sums they may be entitled to receive are to be paid them by Messrs. Owen and Winton.

The findings show that in June, 1896, following the act of June 10, 1896, 29 Stat. L., 321, which conferred jurisdiction on the Dawes Commission to make a roll of the Choctaw Indians, Winton and Owen entered into a written arrangement by the terms of which Winton was to proceed to Mississippi and procure from the Choctaw Indians residing there as many contracts as possible, employing said Win-ton to represent them in securing their rights to enrollment in the nation. Winton was to do the manual labor in this respect and Owen was to bear the expense incident thereto, the profits, if any,' to be shared equally. This partnership agreement was subsequently modified to some extent, but the modifications are of minor importance. Winton went to Mississippi immediately after tbe conclusion of the agreement and at this time secured about 1,000 individual contracts with full-blood Mississippi Choctaws, the Indian agreeing to compensate said parties by the payment of a fee of one-half of the net interest of his allotment when the same was secured. All of these contracts were expressly invalidated by the act of May 31, 1900, supra.

In June, 1901, Winton and Owen having previously submitted to an eminent firm of lawyers the question of the validity of the first contracts taken by them, in view of the act of May 31, 1900, and having received an adverse opinion thereon, together with suggestions and advice as to how to proceed in the premises, abandoned the earlier contracts and secured 834 additional contracts providing for a compensation for services equal to one-half the value of the net recovery of or for the Indians in land, money, or money values. The last contracts embraced a total number of at least 2,000 Indians.

In the meantime, however, Owen early in 1896 had called the attention of Hon. John Sharp Williams, then a Representative in Congress from the district where the major portion of the Mississippi Choctaws resided, to the possible rights of his constituents to participate in the allotment of Choctaw lands in the West, at the same time furnishing him with a copy of the treaty of Dancing Rabbit Creek and directing his particular attention to the fourteenth article thereof. Williams up to this time had taken no interest in the matter.

Winton had likewise been industrious in December, 1896, January, 1897, and September, 1897. On each of these occasions he presented printed memorials to Congress directing attention to the rights of Mississippi Choctaws in the Choctaw Ration under the fourteenth article of the treaty. These petitions to Congress are significant in that they put forth a contention for the right of the Mississippi Choctaws to participate in the allotment of Choctaw lands on the theory that by the terms of the treaty the Mississippi Indians had bought and paid for two things—the right of residence in Mississippi, and of not losing the right of citizenship in the nation because of such residence.

In October, 1896, Owen applied to the Dawes Commission for the enrollment of Jack Amos and 97 other full-blood Mississippi Choctaws whom he represented under the contracts heretofore described. The contention advocated for their enrollment was rested on the act of June 10, 1896, supra, and involved the question of removal from Missis sissippi to the Indian Territory, Owen insisting that removal was not necessary. The commission declined to enroll his clients, which ruling was subsequently affirmed on appeal to the United States court for Indian Territory, the case later going to the Supreme Court, where it failed of consideration upon jurisdictional grounds, being, however, indirectly affirmed in the case of Stephens v. Cherokee Nation, 174 U. S., 445.

In February, 1897, Owen drafted a resolution, which was subsequently passed by the United States Senate, calling for certain information from the Interior Department relative to the contemporaneous proceedings between the Choctaw Indians and the representatives of the United States occurring at the time of the negotiation and execution of the treaty of Dancing Babbit Creek. The information was promptly furnished and was at all times easily accessible and well known to those charged with the administration of Indian affairs.

In June, 1897, Congressman Williams secured the legislation directing the Dawes Commission to investigate the claims of the Mississippi Choctaws, 30 Stat. L., 83. Thereafter Owen appeared before the commission in the interests of his and Winton’s clients. Nothing more was done by the claimants until subsequent to the passage of the act of June 28, 1898, known as the Curtis Act. It will be recalled that this legislation authorized the identification of Mississippi Choctaws who had removed to the Territory, and was the result of Congressman Williams’s efforts in their behalf. Following this Owen, through Winton, prepared a circular, and it was generally circulated among the Indians, pointing out the requirements of the Curtis Act and advising them as to how they might be identified. The circular was, of course, unofficial and was later substituted by the official action of the commission, by which it publicly advised the Indians of the time when and place where the commission would sit to receive applications and the mode of procedure and requirements for enrollment. It will be recalled that Commissioner McKennon proceeded to Mississippi to execute the orders of the commission, and after he arrived there his labor and progress was interfered with and considerably retarded by the interference of Winton and others on the ground, who persistently and industriously delayed and confused the Indians by solicitations for contracts of employment to represent them before McKennon and elsewhere. This fact was emphasized in the report of Commissioner McKennon and is fully sustained by the record.

Neither Winton nor any other claimant, so far as the record discloses, made objections to the McKennon roll, nor were they in anywise instrumental in its final disapproval, although it was manifestly erroneous and inaccurate. In fact, Winton, on February 7, 1900, addressed a memorial to Congress which, in effect, approved the principles adopted by McKennon in making up his roll. Congress disregarded the petitions of Winton, and it was apparent to all concerned that the removal of the Mississippi Indians to the Territory would be made an indispensable prerequisite to the securement of citizenship. So we find, for the first time, on April 4, 1900, Winton and his associates suggesting legislation embodying the idea of removal. The act of May 31, 1900, heretofore adverted to, provided for removal, but its passage is in nowise to be accredited to the service of any of the claimants. It was due wholly to the efforts of Congressman Williams and his colleagues in both House and Senate. This is obvious from the last clause of the statute, which expressly invalidated all contracts with the Mississippi Indians and freed their funds and lands from any charge alleged to have been incurred by them in reference thereto.

That Winton and his associates yielded reluctantly to the policy of removal and the expense incident thereto is evidenced by the incorporation of the Choctaw Cotton Co. This company was incorporated under the laws of West Virginia for the purpose of financing the removal of Mississippi Choctaw Indians to the Territory. All the contracts of Winton and his associates were assigned to the company. They were the company’s only assets. Two-thirds of the capital stock was issued to Owen and one-third to Winton, and the same was placed upon the market, possessing no value aside from the anticipated returns from the assigned agreements.

The purpose and intention of Congress by the passage of the act of May 31, 1900, as we have previously shown, miscarried, and other legislation became necessary. The final legislation, which culminated in the recognition of the rights of citizenship as embodied in the act of July 1, 1902—i. e., the ratification of the Choctaw-Chickasaw supplemental agreement—was drafted by one McMurray and Assistant Attorney General Van Devanter. It was inimical to and opposed by Winton and associates, and their suggestions and memorials in reference thereto were opposed by the Interior Department and the Congress of the United States.

Winton and other claimants, as will hereafter appear, seriously interfered with, obstructed, and retarded the work of the second commission sent by the Dawes Commission to Mississippi in April, 1901, not only by their never-ceasing efforts to procure contracts of employment but by direct and express professional advice not to appear before the commission for enrollment, as it was without power or authority to enroll them.

The court, by the foregoing, has segregated the claim of Winton and his associates, made necessary by its close relationship and interlacing with the various legislative enactments in the course of this litigation, set forth in chronological order in the findings. No claim is made by Winton and his associates for any expenses incurred, the petition in this respect confining its allegations to a right of recovery for services rendered in procuring legislation, services before the committees of Congress, the Interior Department, and the Dawes Commission.

A close analysis of this particular claim in view of the principles upon which we are to award judgment found in the jurisdictional acts results in a conclusion adverse to its allowance. The most conspicuous service rendered, treating the same now wholly upon its merits, was the suggestion made by Owen to Williams in 1896 relative to the treaty rights of the defendant Indians. It was as aptly styled by Senator Williams “ the suggestion of an idea,” and had the suggestion been followed by continuous service in harmony with and helpful to the efforts subsequently put forth to secure the adoption of the legislation procured, it would have been of great monetary value to the final beneficiaries. Unfortunately for the claimants, however, the record discloses an advocacy upon their part of legislation in direct opposition to the attitude of the department and Congress— an opposition of sufficient force to delay, confuse, and retard what was the obvious desire of both the Choctaw Nation west, the Indian Office, and the Congress in the speedy and just settlement of this Indian contest. It is not for the court to say whether Winton and his associates were right and the other side wrong. We are alone concerned with what was done and who brought it about. Senator Williams expressly disclaims any subsequent assistance from Winton, his associates, or any other of the claimants in what he did, and repudiates the idea of any influential efforts in the accomplishment of the laws passed. As a rule, and speaking from the record, the court may well say that Win-ton and his associates’ services before the committees of Congress, the Interior Department, and the Dawes Commission were not the moving cause or the paramount reason for the course finally pursued. The initiatory service set in motion the machinery of legislation; the final product, however, was the conception and labor of others, so that in the end the real substantial factor, the laws which accorded citizenship, the vital matter requiring service, and professional service of a high character, was not the result of cliamants’ efforts. Winton himself was most of the time assiduously engaged in negotiating and procuring contracts of employment from the Indians. His zeal in the cause frequently led him into open conflict with the authorities of the Dawes Commission in Mississippi, which materially injured the Indians’ rights. He was in fact in no position to render extensive or convincing service to the legislative branch of the Government and followed precisely the course of his associates. The memorials prepared and signed by Winton individually are shown to have been devoid of influence by contrasting their subject matter with the legislation enacted.

Aside from the merits of the claim it would be impossible to award a judgment in favor of Winton and his associates and conform to the opinion of the court. Winton and his associates were, during the whole course of this controversy, discharging their obligations to the Indians under their individual contracts; they were representing Choctaw Indians, with whom they had individual contracts and endeavoring by their efforts to secure for them the greatest possible rights, both individual and property, in the Choctaw Nation as Congress might grant. Winton and his associates were advocating with ability and great earnestness a right accruing to the Mississippi Choctaws under the treaty of 1830 to remain in Mississippi and at the same time enjoy the benefits of Choctaw citizenship in the Nation. This was a contention designedly assumed for the express benefit of their individual clients and for which they expected them and them alone to pay compensation. It was a service performed for and in the interest of a certain number of Mississippi Choctaw Indians without the knowledge or acquiescence of a large portion of the class with whom they had no contracts, and for whom other claimants were performing service of a very distinct and different character.

The jurisdictional act does not dispense with the necessity of proving a service of such a general character as to redound to the benefit of all the Indians alike; nor does it relieve the claimants or the court from the burden of detail investigation into the origin, progress, and result of the service for which compensation is claimed. It would be extending the doctrine of an implied contract to pay for services rendered, which may produce beneficial results, to the limit to hold that services performed in the interest of a part of the Mississippi Choctaws imposes the burden upon a large portion of the tribe, totally disconnected in every way from any association with the claimants, of contributing toward payment therefor. Can it be said that because a certain class availed themselves of legislation advocated by claimants they thereby impliedly promised to pay them for services when the record discloses that these very beneficiaries were under contract to pay other claimants for doing the same thing? Supposing some of the Indians, as doubtless some did, had paid their attorneys, must they again respond for a service of which they knew nothing and which they never requested? It is impossible from the testimony to bring home to the large class sought to be charged with expense a common knowledge of what the claimants were doing, or to place them in a situation from which such knowledge may be inferred. The claimants attempt this by the simple introduction of their contracts of employment, supplemented by proof of what they did, apparently resting their case upon the theory that service to a portion of the class was made by the jurisdictional acts equivalent to service for all. To sustain a recovery upon the principle of quantum meruit there must be more in the record than a mere acceptance of benefits made available through the efforts of claimants to serve a particular class of the whole class in virtue of written contracts so to do. In a claim like this the principles of quantum meruit apply to the persons obligated to pay therefor by the written contracts which have been invalidated by law, but it can not extend to a large number of persons who were wholly innocent of any work or labor being done for them with the expectation of compensating others than those whom they employed therefor.

A judgment upon the principles of quantum meruit presupposes a situation of the parties whereby the court may infer from the circumstances of the case that the defendants knew of the efforts in their behalf, acquiesced in the performance of labor for their benefit, accepted the benefits of such services, and thereby impliedly promised to pay therefor. In this case not only these claimants but all others have failed to do so. They have shown an individual employment, in some instances extensive, in others limited, each acting within his own sphere absolutely without concerted effort or personal affiliation an'd association. No one was attempting to serve all the Mississippi Choctaws; no one was attempting to do more than secure the enrollment of their individual clients regardless of the rights of others, and frequently at cross-purposes with each other.

In addition to what has been said, it is absolutely impossible from the record in this case to ascribe to any of the claimants the credit for securing legislation. The Congress acts deliberately, and information respecting matters of legislation is usually found in the several departments of the Government. In Indian affairs a separate branch of the Department of the Interior has been established by law with full jurisdiction over the administration of Indian affairs. The records of this department are reliable and trustworthy, and when Indian affairs engage the attention of Congress the Indian Office is called into consultation, and from its archives official documents supply information forming the basis of Indian rights, both personal and property. It would be a task impossible of performance to segregate the services of these claimants from the influence of the department’s efforts in the adjustment of this controversy and say that the claimants exerted an influence that moved Congress into a recognition of the Mississippi Choctaw Indians’ rights to citizenship. The usual course of legislation negatives the contention in the very beginning.

We do not hesitate to say that we have ignored a contention made in the case upon behalf of attorneys generally that looks to an award of $2,000,000, or 15 per cent of the value of the Indians’ estate. This is not a suit susceptible to such an advocacy, and it was unwise to encumber the record with proof of such character. The whole argument predicated upon such a basis in no wise tends to help the court in its deliberation and certainly tends toward a conclusion that the whole transaction from its inception to its close was intensely speculative in its character and devoid of the usual and customary relationship that should always obtain between attorney and client in that the former is always charged with the duty of protecting and conserving Ms client’s interest and property. We venture the assertion that not one of the "claimants here concerned but would have gladly accepted employment in this whole matter on a basis of compensation in no wise comparing to the absurd figures noted above.

The claim of Chester Howe, deceased, is, on its face, devoid of merit. It is a claim against Hudson & Arnold and James E. Arnold. Howe traces absolutely no employment by or knowledge to the Indians that he was acting in their behalf. There is nothing in the record to even suggest such a relationsMp between Howe and the defendants that would warrant the court in implying a contract upon their part to recompense him. Howe was employed in 1899 by one L. P. Hudson, a member of the firm of Hudson & Arnold, to represent said firm as an attorney at law before the committees of Congress, the Indian Office, and the Dawes Commission. He was never substituted as an attorney by Hudson & Arnold or James E. Arnold under their contracts. James E. Arnold subsequently renewed said contract after the dissolution of the firm of said Hudson & Arnold. Howe’s compensation was a contingent fee based upon one-third of the amount stipulated as compensation for the aforesaid firm in their contracts with the Indians, accompanied by an assignment to this extent of an interest in the same.

That Howe never considered the Indians as liable for his fees is more than evidenced by the fact that he was on the point of withdrawing from the whole case because Hudson & Arnold had refused to pay him his proportion of certain money collected on the contracts in which he had a one-third interest. Howe, in so far as this record is concerned, never saw a Mississippi Choctaw Indian. He advocated their cause, it is true, and he did it with great faithfulness and signal ability, but he was acting in behalf of his clients, Hudson & Arnold. It would be an act of great injustice to charge the defendants with the payment of an attorney’s fee for services rendered by an attorney without their knowledge or consent, and who at the time of acting was under contract with other clients who promised to pay him. The court can not consider the failure of Howe’s clients to pay him as an evidence that Congress intended to have the Indians answer out of their estate for this default. Howe’s petition will be dismissed.

Page on Contracts, volume 2, section 774, states with such precision the elements of an implied contract that we give the language in full:

“ If the person for whom services of a kind usually made the subject of charge are rendered knows of their rendition, he is liable therefor, though he has made no express request, in the absence of special circumstances, negativing his liability. If the person for whom the work is done knows that it is being done and that the person doing it expects compensation from the person for whom it is done, and believes that such compensation will be made, and the latter does nothing to correct such impression, he is liable for the work thus done. In the absence of an express previous request it is necessary that the person for whom the work is done should know that it is being done, and further that it is being done for his benefit and also upon his liability. If A employs B to do certain work and B employs C to aid him therein, no implied contract between A and C exists, even if A knows that C is doing the work and that A will ultimately receive the benefit thereof, since A is liable over to B on his contract for the work done.”

Balston & Siddons were employed by Howe, and Howe agreed to pay them. They had no direct relationship with the Indians, and their appearance was without the Indians’ knowledge or consent. This petition will also be dismissed.

We next reach the claims of James E. Arnold and Louis P. Hudson. They might each be disposed of very briefly, if it were not for the employment by them of Chester Howe, as heretofore noted. Arnold was not a lawyer, and hence incapable of performing professional services; Hudson was an attorney at law, but proves no professional service. Arnold’s principal claim is predicated upon expenses incurred in the removal of the Indians. Claims of this character we decline to recognize, leaving Arnold dependent upon recovery to the services rendered for him by Howe. Arnold collected thousands of dollars from the Indians, and from the inception of his participation in Choctaw affairs to the close of the whole transaction profited perhaps more than all other claimants combined. He agreed to compensate Howe, and unquestionably had sufficient funds on hand to more than pay his attorney all his services were at least reasonably worth.

Hudson’s petition follows Arnold’s and will be dismissed.

The claim of the intervenors is a distinct entity—i. e., the claimed relationship must be sustained as sufficient to constitute an association within the meaning of the jurisdictional acts, and is attempted to be so connected that a recovery thereon inures to the individuals only on the theory of the worth of their combined efforts. While each file individual intervening petitions the allegations of the same disclose a claimed liability upon a concerted or copartnership effort each contributing in his own way a portion of the combined effort. It is novel, especially so in view of the fact that liability against the defendant Indians is asserted, not upon any contract or relationship with them direct, but wholly upon an independent agreement or agreements among themselves as to the division of fees between them by M. M. Lindly, who alone alleges an express contract with the defendants. Field says he is entitled to be paid because he collaborated with Lindly and Howe under an express contract between the trio and that any fees accruing should be divided. He further alleges an interest in all the services rendered by James E. Arnold, Louis P. Hudson, and John London under an agreement which the above-named persons are supposed to have made with Lindly, which, by the terms of the Lindly, Field, or Howe agreement, above mentioned, was to inure to the benefit of this copartnership, although it nowhere appears that Arnold, Hudson, or London were parties to the alleged written instrument creating the coparnership. Whatever interest they had in the alleged firm was never disclosed until the institution of this suit, and not one of the intervenors, even under the band contract which is claimed as being in Lindly’s name, except Lindly, connect themselves in the remotest way with the defendant Indians. Lindly and London attempt in oral testimony to corroborate Field in every important particular. The alleged written contract of copartnership between Field, Lindly, and Howe is attempted to be established by a copy of the same. The court discards it, for Howe was dead when it was first produced and his signature does not appear thereon, and no effort is made and does not appear to have ever been made to bind Arnold, Hudson, or London to the agreement in writing; and inasmuch as Arnold directly contradicts and Hudson prefers no claim thereunder, furnishing no proof thereof, this phase of the association is left alone upon the unsupported testimony of Field and Lindly. It would involve a discussion much too prolonged to analyze and point out in detail the manifest inconsistencies appearing in the testimony of these three intervenors. The record is replete with sustained charges of personal and professional misconduct. The court has been amazed at the strenuous effort put forth in an endeavor to erect a claim of sufficient stability to come within the limits of the jurisdictional acts. We have gleaned with the greatest care and after the most careful and deliberative consideration the facts set out in the findings from a record so decidedly discredited and equivocal that we have been unwilling to attest a single circumstance claimed unless corroborated by the testimony of living witnesses, other undisputed circumstances of the transaction, or confirmed by authentic written papers and the contemporaneous history of the whole transaction.

Lindly, Field, and London delayed an assertion of their individual and copartnership claims against the defendant Indians until long after all the other claimants had filed their petitions and much testimony taken in reference thereto. All were entirely familiar with the proceedings and knew the entire course of the pending controversy; Field particularly so, for he had personally represented three of the intervenors. This circumstance is obviously potential, its influence especially convincing, in giving weight to the voluminous testimony presented in support of the claims. Standing alone it is clearly susceptible of explanation. In the absence of such an explanation, however, it must incur the penalty of arousing doubts in reference to the proof of important events which, had the claims been promptly asserted, could have been easily proven by living witnesses, which now, through the lapse of time and the negligence of the claimants, depend upon secondary evidence incapable of being contradicted by the witnesses in behalf of diverse interest directly concerned because of their death.

The claim as predicated upon the alleged band or tribal contract is preposterous and absurd. No doubt Lindly and Field hoped to secure the execution of such a contract and doubtless drafted and delivered to London such an instrument in form. In order to prove its execution,these claimants present a record wherein London himself so thoroughly discredits the whole transaction, and is so fully corroborated by well-known and existing conditions among the Choctaw Indians in Mississippi that the whole attempt falls of its own weight.

To prove the contents of a lost instrument something more is required than merely a trace of its possession from one to another of the intervenors. The execution of the original can not be sustained by a simple recitation of individual opinion respecting its acknowledgment by those especially interested in sustaining the same. Not a single witness is produced to identify the signatures of the alleged parties thereto, when, before whom, and in what manner or even the capacity or authority of the officer in Mississippi before whom it is alleged to have been taken. The whole transaction is entirely too indefinite, too much is left to inference and conjecture, too many implausible and contradictory statements with reference thereto abound, to warrant the court in the light of the long history of the life and local conditions of the Choctaw Indians in Mississippi to attach weight to an alleged contract of this character.

From a legal aspect the claim must fail. Field, Lindly, and London can not by a copartnership agreement bind the defendant Indians to pay them for professional services which they never engaged them to perform. It is a startling proposition to contend that because Lindly, Arnold, or Hudson had a contract or contracts with the Mississippi Choctaw Indians, and in the performance of the same employed Field to assist them, that thereby the defendants incurred a liability to pay attorney fees to not only their contract attorneys but to all with whom they might thereafter associate". Lindly, London, and Field never prepared, signed, or presented a brief to the committees of Congress over their own names. Aside from Field’s activity in interviewing personally some individual Congressmen and United States Senators, for which service he could not recover, not one of them had the slightest direct connection with the defendants, except as to some individual contracts taken by Lindly and London. The Congress did not intend by the use of the term “ associates ” to extend a right to prefer a claim against the defendant Indians because perchance the personal relationship between Lindly, London, Field, and Chester A. Howe was congenial and agreeable. These three claimants can not by an agreement between themselves enhance the cost to the defendant Indians for professional services for the performance of which the Indians engaged one of their number to perform. Even if the band and co-partnership contracts were fully proven and established, except as to the individual beneficiary thereunder, no possible right of action could accrue. The Indians did not employ the intervenors; they did not even suggest their employment or know of it. The activity by them manifestly was in pursuance of an undérstanding among the intervenors to which the Indians did not accede and with which they had no concern. It was an express agreement, inter alia, by the terms of which Lindly agreed with the remaining intervenors to share with them a proportionate part of fees due him under his contracts with the Indians. The Congress was not making contracts for the intervenors or erecting a relationship out of which every Indian attorney who voluntarily or otherwise connected himself with another actively and properly engaged in urging the defendants’ claims before the various departments of the Government, could come in and claim a personal liability to him. The defendants were not exposed to such unlimited liability. The term “ associates ” must be read in connection with principles upon which we are to award judgment—“principles of quantum meruit.” An associate to recover can not rest his case upon a mere contract of association with an attorney regularly employed by the defendants. He must do more; he must assume the burden of establishing a service under such circumstances and so connected with the defendants that the court can imply a contract upon the defendants’ part to pay what those services are reasonably worth. We have heretofore discussed the question under individual contracts and sums expended for removal which we need not again repeat. Suffice it to say that not a single one of the intervenors have established the slightest vestige of authority to represent the defendant Indians, Field himself never having procured a contract in his own name of any kind or character; and the mere fact, if it was established, that he may have been engaged by Chester A. Howe to assist him professionally in his presentation of the case, could under no circumstances give him more than a claim against Howe for the payment thereof.

The claim of James S. Bounds is for services distinctly personal. Nothing that he did resulted in any permanent or temporary benefit to the Mississippi Choctaws as a class. His petition will be dismissed.

The petitions of William N. Vernon, Joseph W. Gillett, Choctaw-Chickasaw Lands & Development Co., J. J. Beck-ham, and David C. McCalib are all for personal services rendered for and on behalf of individual Choctaw Indians and all were rendered after the passage of the act of July, 1902. They had no part in the solution of the Mississippi Choctaws’ claim to citizenship in the Choctaw Nation. The whole transaction of each petitioner and intervenor mentioned above was entirely speculative and personal. All the above petitions are dismissed.

Thomas B. Sullivan and Joseph H. Neill have a claim against the estate of Charles F. Winton, but none against the defendants. Their petitions are dismissed.

The remaining petitions of Melvin D. Shaw, James O. Poole, and John W. Toles are all dismissed for lack of sufficient proof to sustain them.

It is so ordered.

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Concurrence Opinion

Campbell, Chief Justice,

concurring:

By the jurisdictional acts the court is authorized and directed to adjudicate the claims of certain parties u against the Mississippi Choctaws.”

Winton and associates filed their original petition duly verified by oath of Mr. Owen in which, at much length, they propound their claims as being one against the Mississippi Choctaws for service “ rendered not to one individual but to every individual who is enrolled and who has obtained the right to this great estate.” Later and after the second jurisdictional act was passed Winton and his associates filed their amended petition, seeking among other things to avail themselves of the said second, act, and reiterating that their claim is for services rendered to the Mississippi Choctaws “ as a body.” The general character of the services claimed for relates to matters of legislation affecting Mississippi Choctaws. For brevity the name of Winton will be used as referring to the parties named in the first of said acts. Chester A. Howe claims judgment for services of the same general nature as those alleged by Winton against all of the Mississippi Choctaws and also asks that judgments be rendered against individual Indians for additional sums expended in the matter of their removal. Other petitions and intervening petitions were filed. Some of these claim for services rendered, others for expenses incurred, and some claim for both, against individual Indians, and sometimes two or more claimants claim against the same Indians for expenses incurred on their behalf in different ways.

Broadly speaking, the Mississippi Choctaws are descendants of Choctaws who remained east after the Dancing Babbit Creek treaty of 1830. More specifically, they are those Indians who, residing mostly in Mississippi, could claim citizenship in the Choctaw Nation by virtue of the provisions of said treaty.

For the purpose of this case they are those of the latter class who did claim citizenship and were enrolled in the Choctaw Nation as Mississippi Choctaws.

At the inception we are met with the question of the court’s right to entertain the proceeding, and I do not fully concur with my brethren upon that question.

The second act is plainly amendatory of' the first act, and as all claimants have filed petitions claiming under it the second act may be looked to as covering the scope of the legislation under which the proceeding comes to this court and the results it contemplates.

The said acts refer to the “claims” of certain parties “ against the Mississippi Choctaws.” Manifestly they do not comprise all those persons who are referred to in the legislation or proposed legislation relative to Mississippi Choctaws then residents principally of the State of Mississippi.

Section 41 of the act of July 1, 1902, 32 Stats., 651, contains a description of Mississippi Choctaws and refers (1) to all persons who had been duly identified, and (2) to persons who might thereafter be identified under the terms of the act. It deals primarily with the question of identification as distinguished from the enrollment under which rights of citizenship or to property were to be secured. A Mississippi Choctaw could be identified as such and yet not secure property rights, because he must needs meet the conditions of enrollment. As a matter of fact many Mississippi Choctaws (more than 800) were identified who were never enrolled. They remained in Mississippi and did not take up settlement in the western country. The said section also requires that “all Mississippi Choctaws so enrolled by said commission shall be upon a separate roll.” The jurisdictional acts must have reference to enrolled Mississippi Choctaws and not to the general description of Mississippi Choctaws who were eligible to identification under said section 41, because otherwise there would be subject to suit a number of Mississippi Choctaws who were not enrolled and did not secure any of the benefits of enrollment such as allotments of lands and the right of participation in other funds. Win-ton’s petition makes them parties as follows:

“ Names of the defendants in this proceeding against whom your petitioner is entitled to a judgment and a description of the lands upon which your petitioners are entitled to a lien in this proceeding will be found in the schedule showing lands selected by enrolled Mississippi Choctaws filed in this court,”—

said schedule being properly identified as one transmitted to the court in answer to the court’s call upon the Secretary of the Interior and described as a “ List of Mississippi Choctaws who have selected land in allotment with their roll numbers and descriptions of their selections.” The said schedule contains 1,580 names, of which 137 are listed as newborn Mississippi Choctaws, and the said petition avers:

“ The whole of which purports to be and is for the purSoses of this petition admitted to be a complete roll of the lississippi Choctaws to whom allotments of land in the Choctaw and Chickasaw Nation have been made and upon whose said allotments as described in said exhibit, your petitioners are entitled to and claim liens to secure the payment of such judgments as may be rendered in this cause.”

It thus appears that he sues all of the Mississippi Choctaws who were enrolled and to whom allotments had been made, including in the list of defendants a number of minors who are listed as new born. Howe likewise claims against all of these, and further claims against some of the individuals less than all, while other claimants define their claims to be against one or more of said individuals.

The Attorney General, appearing by virtue of said acts for the defendants, questions the court’s jurisdiction upon several grounds, among others that the defendant Indians have not been properly summoned and served with notice of the proceeding and that they are denied due process of law.

The jurisdictional acts do not purport to declare any liability of the Indians, who are defendants, to any of the parties named therein, and leave that question for the court’s determination. The liability alleged by Winton is on account of services rendered and expenses incurred in or about the matter of legislation which they claim was the result of their labors and secured to said Indians a vast estate. Howe claims to have contributed by his efforts to said legislation, and other claimants seek to recover for expenses incurred in or about the removal of individual Indians from Mississippi or their subsistence pending their removal or after they had been removed. If all of these claims can be made and allowed it follows that judgments must be rendered (1) against all of the Mississippi Choctaws, (2) against some of them, less than all, (3) against some individuals in favor of two or more claimants.

According to the second jurisdictional act, which is amendatory of the first, any judgments rendered by the court are to “ be paid from any funds now or hereafter due such Choctaws as individuals by the United States,” and a lien on the allotments of land to said Choctaws is declared for such judgments. The “ funds ” from which the judgments are to be paid can only arise out of a distribution of the fund arising from sales of unallotted lands or properties mentioned in the Atoka agreement and acts relative to the Choctaw-Chickasaw Nation in which Mississippi Choctaws are entitled to participate as provided by the statutes. There is no provision whereby any such distribution is to be made to the Mississippi Choctaws as a body or group independently of other Choctaw participants, but all allotments of land to Mississippi Choctaws have been in severalty to individuals, and their rights to participate in future distributions of funds are under present statutes individual rights. In other words, their participation or interest in tribal property of which the Government is trustee depends on the fact that the statutes recognize them as individually entitled to certain rights present or prospective. That these supposed rights may be altered by subsequent legislation need not be questioned here. Looking to the proposed method of paying said judgments, it is apparent that the funds mentioned are those which upon future distribution or apportionment of the trust estate or parts of it will fall to the share of the several individuals. For the funds to be “due from the United States” to the individuals implies a right of such individuals to demand it, and at that time the funds due will have become debts due them from the United States. And whereas now the Government is trustee of the funds and controls them, the trust, to the extent of the apportionment when made to the individuals, will then have ended, and the character of the holding as to them will have changed from that of a trustee for all the Choctaws to that of a debtor to the individuals. It is at that point that said act would divert from the Indians as individuals the payment of the amount found due and require its application to the payment of said judgments.

If the judgment liens so declared be effective, no reason is apparent why upon their rendition the judgment creditors may not proceed in any court in Oklahoma of competent jurisdiction to enforce said liens against the lands of the individual Indians to the extent, at least, of the proportional part of such judgment due from each. Shields v. Thomas, 18 How., 252, 264.

We have therefore a proceeding in which individual Indians are defendants having for its purpose the establishment of a liability against all or some of them and to the payment of which liability their individual properties are subjected. The “services rendered and expenses incurred” for which compensation is sought had their inception while the Indian defendants were yet in Mississippi. All the services in legislative matters were rendered prior to final enrollment, and the alleged “expenses incurred” were at different stages between the Indian’s movements in Mississippi until his final removal West and his enrollment there. The Indian defendants, except the “new borns,” were in Mississippi, and they were citizens of that State. As alleged in Winton’s original petition, “The Mississippi Choctaws, by the terms of the fourteenth article of the treaty of 1830, were made citizens of the United States and, of course, had a right to contract, as they were not Indians who were wards of the Government of the United States.” They were citizens of Mississippi, and they subsequently became citizens of Oklahoma.

The petitioners thus suing them, as though by name and as individuals, upon a claim alleged to be against them as a group or body or class, and upon other claims confessedly against individuals, as such, under an act which contemplates a satisfaction of all judgments out of individual holdings, the proceeding in some of its phases has very much the form of personal actions against individual Indians.

It can not be doubted that Congress has “ plenary authority over the tribal relations of the Indians.” lone Wolf v. Hitchcoch, 187 U. S., 526. “Congress has full power to legislate concerning the tribal property of the Indians.” For is citizenship incompatible with the exercise by the General Government of its duties and powers of supervision. Tiger v. Western Investments Co., 221 U. S., 286, 311. The power of Congress to legislate with regard to such Indian matters “ has always been deemed a political one, not subject to be controlled by the judicial department of the Government.” Lone Wolf case, supra; Tiger case, supra. But the question is whether Congress has exercised its powers as a political one or has, by the shape the legislation has taken, made the question purely a judicial one. The acts do not declare or define any liability, individual or otherwise, of the Indians to any of the claimants. Green v. Menominee Indians, 238 U. S., 558. The issues are between citizens of Oklahoma and, perhaps, other States on the one side, and Indian citizens of the United States and of Oklahoma on the other side. The Indians’ individual holdings in the hands of their trustee must respond to the judgments rendered.

The question submitted to the court is whether there is any liability against the defendants or any of them to the claimants or any of them. The court, in order to proceed properly, must have the proper parties before it, and parties are entitled to proper notice of suits against them. “ Citation before hearing; hearing, or an opportunity of being heard, before judgment are principles of the most primitive justice.” The Indians who are sued, except the new born, were citizens of the United States when the alleged services were rendered and when the alleged expenses were incurred.

When they were enrolled and secured allotments of lands in severalty they did not cease to be citizens of the United States. Their “ rights, privileges, and immunities ” as citizens could not limit the powers of the General Government in dealing with them or their property rights in their new relation. Citizenship is not incompatible with the power of Congress to place limits on their power to control the property allotted to them. But has Congress the power to subject them to a proceeding in this court without service of process to determine whether they are liable for engagements, express or implied, entered into, if at all, with other citizens prior to the time when their new relation to the Government was assumed? Certainly those Mississippi Choctaws who were identified but never secured enrollment could not be sued in this proceeding without personal service if suable in this court at all. Those who were enrolled could have been sued in State courts on their valid engagements entered into before their rights of citizenship were subordinated to the said control and could have been sued afterwards on said engagements. What they yielded up of their rights as such citizens when they were enrolled among the Choctaws were those rights of citizenship which were inconsistent with their changed relation. They could maintain all rights which as citizens they held and enjoyed that were consistent with their new position. If they had property interests in Mississippi, or if they had made contracts there, they could prosecute or defend suits relative thereto without in anywise affecting the Government’s supervisory control over them or their property interests in Oklahoma, and being sued they could demand summons and service. Section 2103, Revised Statutes, provides that Indians not citizens may only contract when the contracts are approved by the commissioner. Shall the Mississippi Choctaws be denied the benefits of that statute because they were citizens when the alleged contracts were made and then when sued upon them or upon a quantum meruit based upon them be denied summons and service and the right of personal defense as though they are Indians and not citizens? To subject the said Indians to judgments such as the acts contemplate and to subject their funds or allotments to the payment of them without service of summons or voluntary appearance will, it seems to me, be a denial of due process.

If, on the other hand, the proceeding be not against the individual Indians, as such, but is a proceeding of an equitable nature having for its purpose the reaching of trust funds, their sequestration, so to speak, in the hands of the trustee of them, then the court should not proceed in the absence from the record of the trustee. It is a familiar rule that to suits involving a trust estate the trustee is a necessary party. O'Hara v. McConnell, 93 U. S., 150; Shields v. Barrow, 17 How., 130; Carey v. Brown, 92 U. S., 171. Especially is the rule applicable where the trustee is to be bound by the decree. Cunningham v. Macon R. R. Co., 109 U. S., 446; McArthur v. Scott, 113 U. S., 340; Kerrison v. Stewart, 93 U. S., 155. True, the controversy between the petitioners and the Indians may be said, in a sense, to be a separable controversy, but the manifest purpose of the act taken as a whole is to reach the amounts held by the trustee and subject them to the payment of the supposed liability. In such case the relief asked for could be granted without the trustee being before the court. Thayer v. Life Association Co., 112 U. S., 717.

The Government is trustee of the Choctaw-Chickasaw funds out of which it is proposed to pay any judgments rendered in this proceeding after their apportionment to the individual cestuis que trustent. If its guardianship over the Indians’ interests in allotments of land continues it owes some duty of protection to them in the matter of the liens declared by the act, and certainly it should be in position to stay an enforcement of said liens against their individual holdings of land. This it could do if a party. But the United States can not be sued without their consent and have not consented to be sued in this proceeding. A judgment rendered under said act can not be effectuated unless they are parties to the suit, because they can not be required to pay the judgments if any “ out .of funds now or hereafter due ” from them except they be before the court. It may be added that the court are agreed that the United States can not be made defendants in this proceeding.

For these reasons I think the court should not proceed further in the case.

Assuming, however, that the court has jurisdiction and. may proceed in the absence of the trustee, I concur in the result reached upon the merits.

The jurisdictional acts refer to “ claims against the Mississippi Choctaws.” Not only the langauge of the acts but the considerations above adverted to as to service upon the defendants rebut a conclusion that suits are authorized against each Mississippi Choctaw who may have made a contract with or for whom or in whose individual interest services were rendered or expenses incurred by a claimant. The acts do not contemplate that the parties named therein, “ their associates or assigns,” may propound in said proceeding claims alleged to be against one or a few Mississippi Choctaws who are sought to be charged with liability to such claimant and thereby convert the proceeding into a number of distinct and separable controversies between the several claimants and different Indians as defendants. Since the acts do not provide for personal summons to or service on the Indians but by their terms would charge the judgments rendered upon whatever may be due them as individuals from the United States, as well as further secure the payment of the judgments by a lien on lands owned by the Indians in severalty, the court is not justified in extending the controversy beyond the terms of the acts authorizing the proceeding. A claimant is not authorized to select particular Indians supposed to be liable to him and sue them in this proceeding. The claim must be “against the Mississippi Choctaws,” and that means against all of them who were enrolled. This view requires the dismissal of the petitions filed herein of nearly all of the claimants and intervening petitioners. It requires consideration of the claim of Win-ton and his associates, and perhaps a few others. An analysis of the case of Winton and his associates is all that is necessary to a proper understanding of the whole issue.

Their petition and amended petition allege that they have a claim against the Mississippi Choctaws “ as a body.” They make defendants all of the Mississippi Choctaws who were enrolled and had been allotted lands. By reference to the list of those enrolled as shown by the schedule furnished and filed in this court by the Secretary of the Interior, which list or schedule shows the separate names of the allottees and describes the lands allotted to them severally, the said petition as amended makes all of the enrolled Mississippi Choctaws parties defendant.

It is shown by their petition and proof that Mr. Winton’s connection with Mississippi Choctaws commenced in 1896, at which time Mr. Owen was his sole associate. He secured a large number of contracts of employment with individual Indians. It is alleged in the original petition that “they made contracts with Charles F. Winton and later with those associated with said Winton, particularly C. E. Daley. * * * A list of these contracts is respectfully submitted to the court as the basis of the employment of Charles F. Winton, his associates, and assigns.”

The contracts made prior to the act of May 31, 1900, came under the condemnation of that statute because they provided for compensation to Winton of one-half interest in the net recovery and authorized him to locate and select allotments and to convey a one-half interest therein. It is alleged in the amended petition that they “contemplated not only obtaining the estate for the Mississippi Choctaws but contemplated their removal and establishment upon their allotments in the Choctaw and Chickasaw country.” After the said act had declared certain contracts void new contracts were taken by Winton, principally in the name of C. E. Daley, several hundred in number, which have been filed in this proceeding, and the general tenor and substance of them appears from a copy attached to the appendix to the court’s findings in the case.

In the amended petition it is averred that “ the jurisdictional act was sought by the said Winton and his associates solely to cover compensation for their claim for services rendered to the Mississippi Choctaws as a body in securing the legislation and the Executive action, which resulted in the ultimate establishment of the Mississippi Choctaws in the Choctaw and Chickasaw Nation.”

The concluding clause of section 3 of the amended petition is that “this claim- is limited to compensation for services in the actual securing of the estate.”

The original petition is sworn to by Mr. Owen and the amended petition is signed by him, and they therefore may be taken as stating the claim of Winton and his associates. In addition, however, Mr. Owen, testifying in behalf of the said petitioners, states the claim of Winton and his associates as follows:

“ This suit brought under the jurisdictional act is not brought to enforce these contracts, but is brought to determine the measure of compensation of Winton and his associates for services rendered and expenses incurred in the matter of the claim of the Mississippi Choctaws for citizenship in the Choctaw Nation; is brought against the Mississippi Choctaws as a group and not as individuals, seeking compensation for services rendered them as a group and not for services rendered to them as individuals.”

The claim of Winton and associates is therefore “ for services rendered and expenses incurred” principally in work before the legislative body, its committees, and before administrative officers. That an attorney may be employed to present his client’s case before Congress, or committees of Congress, or departmental officers is not to be doubted, and such an agreement, express or implied, for purely professional service is valid. As is said by the Supreme Court in Trist v. Child, 21 Wall., 441, 450: “Within this category are included drafting the petition to set forth the claim, attending to the taking of testimony, collecting facts, preparing arguments and submitting them orally or in writing to a committee or other proper authority, and other services of like character. All these things are intended to reach only the reason of those sought to be influenced. They rest on the same principle of ethics as professional services rendered in a court of justice, and are no more exceptional.”

Claiming a liability to them by the Mississippi Choctaws, whether “ as a group,” “ a body,” or “ a class,” or otherwise, it is incumbent on said claimants to show the facts upon which any liability rests. The general rule, where the suit is for professional services, is that to make out a case the plaintiff must show that the professional work was done and that he was employed by the defendants to do it. “ It is not enough merely to prove that the work was performed, because it may have been without authority or may have been upon the employment of some person other than the defendants.” Wright v. Fairbrother, 81 Me., 39.

We have not been shown any statute which provides for any apportionment of the Choctaw funds to the Mississippi Choctaws as a group, body, or class. On the contrary, the right accorded by the statutes authorizing the enrollment of Choctaws living in Mississippi upon their removal to and residence in the Choctaw country is in each case an individual right. The law declares that “ any Mississippi Choctaw duly identified, etc., shall have the right * * * to make settlement within the Choctaw-Chickasaw country and on proof of the fact of bona fide settlement may be enrolled * * * as Choctaws entitled to allotment.” Act of May 31, 1900, 31 Stat., 236. True, a separate roll of Mississippi Choctaws is required by section 41 of the supplemental Choctaw-Chickasaw agreement, 32 Stats., 641, but section 42 of that agreement provides that “when any such Mississippi Choctaw shall have in good faith continuously resided upon the lands of the Choctaw and Chickasaw Nations for a period of three years * * * he shall upon due proof * * * receive a patent for his allotment, as provided in the Atoka agreement, and he shall hold the lands allotted to him as provided in this agreement for citizens of the Choctaw and Chickasaw Nations.” Section 43 of said agreement requires personal application for enrollment except that a father may apply for his minor children and a husband may apply for his wife.

To sustain, the issue on their part Winton and associates urge that a large number of contracts were made by Winton and his associates with individual Mississippi Choctaws after June, 1896. The said petitioners claim that these contracts comprehended the interests of many more Mississippi Choctaws; that Winton went to Mississippi in 1896 and visited every Choctaw neighborhood, advising the Choctaws of their rights; that they prepared and caused to be presented a number of memorials to Congress setting forth the claim or rights of the Mississippi Choctaws; that they actively urged certain legislation favorable to the Mississippi Choctaws and opposed legislation as unfavorable to them at divers times between 1896 and 1906; that Winton addressed a circular letter to the Mississippi Choctaws wherein he informed them of his activities in their behalf; that the Mississippi Choctaws accepted the results of their labors, and should be held to have impliedly, at least, agreed to pay the reasonable value of such services.

Do the facts establish the liability alleged, or any liability %

That Winton made a large number of contracts with individual Mississippi Choctaws is definitely shown. By the act of June 10, 1896, the United States Commissioner to the Five Civilized Tribes was instructed to make up a roll of members of the said five tribes with a view to the allotment of the land of said five tribes among the membership thereof; and directly after the passage of that act a contract, which was subsequently modified, was made between Mr. Winton and Mr. Owen. By the modified contract, dated July 24, 1896, it was provided that Winton should act as attorney in the Mississippi Choctaw cases under agreement with Mr. Owen; that the latter had a one-half interest in the contracts, and in the event of any accident to Winton he had full authority to take them up in place of Winton. Thereupon Winton proceeded to Mississippi, traveled throughout the State, and procured the contracts of a large number of persons—Mississippi Choctaws, beginning with Jack Amos. Some of these contracts were taken in his own name; some in the name of C. E. Daley, an attorney belonging to the firm of Logan, Desmond & Harley, of New York City, who was acting for and in behalf of Winton; some were taken in the name of Mr. Owen, but all of them occupied the same relation as if they had been made in the name of Winton. These contracts provided that Win-ton should receive one-half of the net recovery, and gave him a large measure of control over the property when secured.

The condition of the contracting Indians is stated in Winton’s amended petition, as follows:

“At the time of the making of the contracts by Charles F. Winton with the Mississippi Choctaws in 1896, the Mississippi Choctaws were extremely poor, working at manual labor, making fences, picking cotton, chopping wood, and having no landed estate or personal property worth mentioning. Their children could not attend schools provided for the whites; they were subject to a species of vassalage, not permitted to leave their employers’ service while under indebtedness, which operated as a kind of peonage; were not allowed to vote or to exercise the rights accorded the citizens of Mississippi, and were otherwise in a state of helplessness, both financially and socially.”

As above stated, after the passage of the act of May 31, 1900, providing “That all contracts or agreements looking to the sale or encumbrance in any way of the lands to be allotted to said Mississippi Choctaws shall be null and void,” Winton proceeded to secure other new contracts.

All of the contracts were with individual Indians, and upon what theory it can be asserted that because a large number of said Indians made contracts with Winton or Daley other Indians not so contracting became affected or bound by them it is difficult to perceive. They did not constitute a tribe or band, and had no tribal organization or government. The State laws had looked to the abolishment of any tribal or Indian government among them. They were citizens, and by contracting with them Winton admitted their power to contract. As late as February, 1906, as appears from the contract between Mr. Owen and Mr. Boyd, one of the associates named in Winton’s petition, there is a reference to said contracts as being with “ various individual Mississippi Choctaws.” If the Mississippi Choctaws were “in a state of helplessness, both financially and socially,” the fact but reinforces the conclusion that those who did not undertake or contract with Winton and his associates should not be held to be bound by the act of those who did contract.

That Winton went among the Mississippi Choctaws is shown by the findings; but it is not shown, except by the contracts they made, who of them employed him or his associates to represent them. Having the right of contract many could and did abstain from contracting with him.

Nor can any implied undertaking by the Indians be raised up from the fact that Winton prepared or presented memorials to Congress in the name of the Mississippi Choctaws and that he sent out a circular letter addressed to the Mississippi Choctaws containing an account of his work.

The first memorial in December, 1896, is in the name of individuals who had employed Winton. The second in January, 1897, purports on its face to be a petition for the enrollment of those whose names are stated and they were clients of Winton. The third “Memorial and petition” September, 1897, purports to be on behalf of the Mississippi Choctaws and is signed “ C. F. Winton, counsel.” It is an argument upon the rights of the Mississippi Choctaws, the burden of which is to show that said Indians were entitled to participate in the Choctaw estate, except annuities, and remain in Mississippi and in bold type asks, “ Why should they be compelled at all to move to the West?” However beneficial this view may have been to his clients if adopted, it was contrary to the course of legislation adopted.

The fourth memorial, February, 1900, was a “ petition of the Mississippi Choctaws ” introduced in the House by Mr. Williams of Mississippi, and is signed, “The Mississippi Choctaws, by C. F. Winton, Logan, Desmond & Harley, attorneys for petitioners.” The petitioners are described 'as “full-blood Choctaw Indians speaking the Choctaw language, citizens of the Choctaw Nation, residing in Mississippi,” and the petition renews the argument that they are entitled to remain in Mississippi and enjoy participation in the Choctaw estate west. It concludes with a prayer that they be sent to the courts “ where this controversy may be settled without delay.”

The memorial of April, 1900, is principally addressed to the question that the law should provide more specifically for their enrollment upon removal, and is signed, your humble servants, the Mississippi Choctaws, “Logan, Desmond & Harley, C. F. Winton, counsel.”

The last memorial, April, 1902, deals with a projDosed change in the statutes relative to identification and enrollment of Mississippi Choctaws and purports to be a petition of the Mississippi Choctaws, being signed, “ The Mississippi Choctaws, by C. F. Winton, Eobt. L. Owen, counsel.” In addition to these petitions or memorials, it appears that in 1898 Winton addressed a circular letter “ to the Mississippi Choctaws,” which is set out in the amended petition. Without stopping to examine the accuracy of his statements or to inquire whether under the principle announced in Trist v. Child, 21 Wall., 441, compensation could be awarded, for “ getting Senator Walthall to pass a resolution through the Senate,” or “ soliciting Mr. Allen, of Mississippi, to prepare it,” or because “by the help of Mr. Williams and Senator Walthall and Mr. Allen ” an “ item was put in the Indian appropriation act,” it is sufficient to say that the proof does not show who of said people received said letter or to how many of them it was sent. Who of them did or could read it? If sent to all it would not impose any liability upon its recipients, without more. The relation of attorney and client can not be created by the attorney notifying an indefinite number of people that he is working for legislation in their interest. Winton knew he had a large number of contracts which at that time had not been nullified by law, and it is reasonable to suppose he desired others. The statement in his letter of the importance of certain proof in the matter of enrollment and that he had secured a list of claimants who were descendants of fourteenth-article claimants which he would make available to his “ clients as soon as practicable,” can as reasonably be construed to be a suggestion to the Indians to become his “ clients ” as it can be said to have been a disinterested act in their behalf.

The memorials of “ the Mississippi Choctaws ” and Win-ton’s said letter together do not create the relation of attorney and client between Winton and the Indians who did not employ him. Winton was retained by a number of Mississippi Choctaws under contracts which he was diligent to procure. That he represented his clients may be conceded. He was “ counsel ” or “ attorney ” for his clients and he had the right, as they had it, to use the general designation of the Mississippi Choctaws in presenting his clients’ case. But in so doing he did not become counsel for all of the Mississippi Choctaws. Those not contracting with him could be silent and not be bound to pay for his services or they could contract, as many did, with other attorneys. If an attorney employed by one concern to present before a committee of Congress an argument in favor of a higher tariff on certain manufactured articles should see fit to urge that “ the manufacturers of this country ” were in need of such legislation, would anybody than his client be bound to compensate him ? If he notified them by circular or through the press that he intended to speak or act in behalf of all of them would “ the infant industries ” be saddled with his fee upon the principle of qucmtwm merwit? I think not.

The theory advanced in argument that Winton is equitably entitled to compensation because of his efforts in behalf of the Mississippi Choctaws which are alleged to have resulted in securing to them a great estate is not tenable. There is no analogy between the estate belonging to Mississippi Choctaws or in which they are severally interested and a trust fund brought into a court for administration. The rights of Mississippi Choctaws in the Choctaw Nation and estate were not cognizable by any court, but were subjects of legislative action. To pay for services of attorneys rendered in or about the procuring of legislation deemed needful or desirable to said Indians upon such theory would be. an undue extension of the trust-fund doctrine. When, through the efforts of a complaining party (who, generally speaking, sues on behalf of himself and all others similarly situated who will come in and bear their proportion of the expenses of the litigation) a court of equity brings within its control a fund which the defendants are seeking to divert or in breach of a trust are attempting to withhold from those entitled to participate in it, the court may distribute the fund so realized. Upon the principle that “ a trust fund should bear the .costs of its administration,” it is allowable to pay out of the estate the costs and expenses of the complaining party under whose bill the court acquires jurisdiction and decrees relief. These costs and expenses include reasonable attorney’s fees to the solicitor of the complainants. Trustees v. Greenough, 105 U. S., 527. But the solicitor’s right to compensation is worked out through the equity of his client against the other parties who come in and participate in the fund, it being considered unjust that one complainant should bear personally all the expense of the litigation, the favorable termination of which enures to the benefit of all. Aside from the rights of his client, the solicitor, generally speaking, has no independent claim upon the trust fund, and the petition for his compensation is generally made in his client’s name. In exceptional cases the solicitors may intervene in their own behalf. Central Railroad & Banking Co. of Georgia v. Pettus. 113 U. S., 116.

Whatever the service actually rendered was, Winton did not create a trust fund. It was already in existence and was under the management and control of the United States. They are still the trustees, and the trusteeship has not changed except to the extent that allotments in severalty may have changed it. At no time was the right of fourteenth article claimants under the treaty of 1830 to remove to and become citizens of the Choctaw Nation denied. The procedure which they should adopt to accomplish that end was long delayed, but the trust was never violated by the trustee. The efforts of Mississippi Choctaws through their counsel to establish a right for them to participate in the Choctaw estate and remain in Mississippi were not successful. Removal west was made a condition precedent to their participation in said estate, and the statutes recognized that condition. Any charge upon the trust estate must be made in the forum which administers it and not by a court which has no control over it.

In several cases under special jurisdictional acts this court has been called upon to determine the compensation which attorneys should receive, payable out of funds due Indians. In the Ute Indians case, 45 C. Cls., 440 ; 46 Ib., 225, the jurisdictional act directed the court to set apart just and reasonable compensation to the attorneys on behalf of the plaintiffs, and authorized an appearance therein by an attorney for the Indians. In the Sisseton and Wahpeton Indians case, 42 C. Cls., 416, the act provided for the ascertainment of reasonable attorneys’ fees, to be paid to the attorneys for the Indians for services rendered in said case. In the Eastern Cherokee Indians case, 40 C. Cls., 252, it was provided that the prosecution of the suit on the part of the Cherokees should be through attorneys employed by their proper authorities, their compensation for expenses and services rendered to be fixed by the Court of Claims upon the termination of the suit.

But the acts involved in those cases declared a liability, authorized the court to ascertain the amounts due, and directed their payment out of the fund in question.

In the Butler & Vale case, 43 C. Cls., 497, involving the claim of the Colville Indians, the court did not in terms hold that the act there considered defined a liability to the attorneys. The act is very different in terms from the acts involved in this case.

Any rights of Winton must therefore rest upon contract, express or implied, with the Mississippi Choctaws made defendants to this proceeding in his petition. No express contract is shown or claimed. None can be implied from the circumstances above referred to or relied upon by Winton. The employment by some Mississippi Choctaws was not an employment by all of the Mississippi Choctaws. Those who did not employ Winton had just the same privilege of employing other agents as his clients exercised in employing him, and many of them did so. The “ new borns ” employed no one, and could not do it, nor are they or their interests bound upon any theory of representation.

It remains to consider the contention that the Mississippi Choctaws accepted the benefits and fruits of Winton’s labors in behalf of the Mississippi Choctaws, “ secured great estates thereby,” and “ upon the principle of quantum meruit” should be held to have impliedly agreed or consented to pay therefor. Mississippi Choctaws became entitled to allotments in severalty and to participation in the Choctaw estate upon their being identified and enrolled. They must needs remove from Mississippi and take up a bona fide residence in the Choctaw-Chickasaw country. They were not required to act as a “body” or “group,” but the act of identification, removal, and allotment called for individual action and volition. They applied for identification as individuals, and were identified as such; they were enrolled as individuals, and as individuals they received allotments of land in severalty. They were neither identified nor enrolled at one or the same time; nor were they allotted lands together. Each of them upon complying with the provisions of the statutes in that regard became a citizen of the Choctaw Nation entitled to all the rights, privileges, and immunities of Choctaw citizenship, except that they could not participate in Choctaw annuities. This exception probably furnished the occasion for the provision in the statute that the Mississippi Choctaws should be carried “upon a separate roll.” Some few may have removed at their own expense; many were removed at the expense of the Government, which appropriated $20,000 for that purpose. Many more were removed by and at the expense of divers persons who have intervened in this proceeding. A comparatively small number were removed to Indian Territory through the instrumentality of Winton, and no claim is made by Winton and his associates for that expense.

The right to apply for identification, to be identified, to be enrolled, and ultimately to participate in the Choctaw estate, is one thing, involving different steps; and the possession and enjoyment of the estates granted is a different thing. It was the fact of removal to Indian Territory, the fact of being identified and subsequently enrolled, that actually fixed their status under the law. In these things Winton did not participate, and he makes no claim for any of them. He does, however, claim that he should be compensated for his services during a number of years while, as alleged, he was advocating or defending before the legislative body or its committees and others the rights of the Mississippi Choctaws. And without stopping at this point to question the accuracy of his claim, but merely stating it he claims that his efforts resulted in the legislation which made possible the enjoyment of a great estate, and that consequently by accepting said estates the Mississippi Choctaws should be held to have assumed a liability to pay for said service upon the principle of quantum meruit.

As above suggested, it was as important to the said Indians that active measures be adopted to provide for their removal to and enrollment in the Choctaw country as it was to have legislation authorizing their removal. To hold that a people who, in the main, were destitute and ignorant of their rights, could by the mere act of exercising a legal right assume a liability, the extent and measure of which they could not know, would be unreasonable. A fatal defect in the contention lies in its failure to note the distinction between accepting the benefits of Winton’s alleged labors and accepting the benefits of the law itself. Between his alleged labors and the enjoyment of said estate there were the necessary steps of identification, removal, and enrollment, and also the law itself by which benefits were secured. The statutes conferred the rights and extended the benefits of which the Indians availed themselves, and they did not by the mere act of exercising their legal rights become debtors to Winton.

It is probable that many of the Mississippi Choctaws who secured allotments never heard of Winton’s alleged services. To be chargeable at all upon the theory of accepting the benefit of one’s labors the party sought to be charged must be free to take them or not. There being no prior contract, express or implied, between the parties it can not be said that the acceptance and pursuit of rights accorded by the statutes are a voluntary acceptance of services rendered by an attorney in or about the enactment of the statutes. The party sought to be charged does not have to forego the benefits conferred by the law or accept them at the expense of a liability for services rendered prior to the enactment of the law. The acceptance by the Mississippi Choctaws of the right to identification, enrollment, and allotments does not of itself and without more create any liability against them upon the principle of quantum meruit. It is a familiar principle that a man can not be forced to pay for what he has had no opportunity to reject. Coleman v. United States, 152 U. S., 96; Boston v. Dist. of Columbia, 19 C. Cls., 31; 9 Cyc. 252. The rule that the party sought to be charged with taking the benefits of an attorney’s services “ must be free to take them or not” finds illustration in Parshley v. Church, 146 N. Y., 583. In that case the plaintiff sued the church for professional services rendered. He had been employed by a minority of a board of trustees to present and prosecute charges against the pastor, and succeeded in his efforts in causing the pastor’s suspension. Thereafter the church instituted proceedings to remove the pastor from the parsonage, and in resolutions authorizing such proceedings it was recited that the pastor had been removed under said charges. The plaintiff urged, among other things, that the church had thus accepted the result of his services and should pay for them, but the court held otherwise, upon the principle above stated.

Unless the relation of attorney and client or some contractual relation existed between the defendant Indians and Winton at or before their enrollment, it can not be said to exist at all so far as this proceeding is concerned, and no such relation is shown. Meeting the conditions and complying with the requirements of the statutes, each of the Mississippi Choctaws was lawfully entitled to participate in the Choctaw estate without let or hindrance from those who claim to have promoted or suggested or aided in said legislation. As each of them under the circumstances stated was free to act under the law a court can not place itself, so to speak, at the entrance to the said western country and say to said people that though they had a perfect legal right to enter they could only do so upon the payment to Winton of whatever sum the court might determine he deserved to receive from them for services performed prior to the enactment of the statute, or that having done so they assumed a liability. This would be like placing an embargo on the law. The statutes do not authorize such a limitation on the rights of the Indians, and the court can not place any. They accepted benefits authorized by the law.

Upon the said list of enrolled Mississippi Choctaws there are 1,578 individual names and a description of the lands allotted to each. Winton had contracts with 696 of these, and he assisted in the removal of a small number of those with whom he contracted. In said list are the names of 137 enrolled under the terms of the statute as “new-boms.” They were infants in fact, and many of them were probably not born when any of the services claimed for were performed. They constitute part of the Mississippi Choctaws who were enrolled and are named along with others as defendants in this proceeding. They did not and could not contract with Winton, and the mere act of accepting their patrimony could not raise up a liability on their part to Winton either as individuals or as members of a supposed group. But upon a claim asserted and maintained against the Mississippi Choctaws as a body or group these would have to be bound by the judgment, if any were rendered.

It is no answer to these views to say that Winton and his associates have received nothing for the services which they allege were responsible for the benefits secured to the Mississippi Choctaws. Winton’s original idea was that he should contract with individual Mississippi Choctaws, and he did so. That the contracts he made were subsequently declared void may have been his misfortune, but he changed their form and made other contracts, evidently recognizing that the surest way of creating the relation of attorney and client is by express contract. As to whose fault, if any one’s, it was that more of his clients did not become enrolled and secure allotments of land, it is not necessary to inquire. More than one-third of the total enrollment had contracted with him in one or the other forms of contract exhibited in this proceeding. He had the right to contract with said people, and the law would furnish him a remedy to enforce valid undertakings. The facts, however, do not show a liability to him and his associates “against the Mississippi Choctaws ” sued in this proceeding. The jurisdictional acts do not create any liability against them. Green v. Menominee Indians, 283 U. S., 558.

It follows that the petitions should be dismissed.