Winton v. AmosWinton v. Amos
delivered the opinion of the. court.
These are appeals from a judgment of the Court of Claims rejecting claims for alleged services rendered and expenses incurred in the matter of the claims of the Mississippi Choctaws to citizenship in the Choctaw Nation. The decision of the Court of Claims is reported in 51 Ct. Clms. 284. In the Winton case (No. 6), a request for additional findings, equivalent to an application for. rehearing, was denied, 52 Ct. Clms. 90. The appeals were taken under § 182, Jud. Code.
The jurisdiction of the court below arose under an Act of April 26, . 1906, ; 1876, § 9, 34 Stat. 137, 140, and an
The original petition was filed October 11, 1906, by Wirt K. Winton, one of the heirs-at-law of Charles F. Winton, in behalf of himself and the other heirs and also in behalf of the associates and assigns of Charles F. Win-ton. Thereafter it was provided by the amendatory act that the court be authorized and directed to hear, consider, and adjudicate claims of like character on the part of William N. Vernon, J. S. Bounds, and Chester Howe, their associates or assigns,' and render judgment on the same principle of
quantum, meruit;
the judgment, if any, to be paid from “any funds now or hereafter due such Choctaws as individuals by the United States”; Vernon, Bounds, and Howe were authorized to intervene in the pending suit of the estate of Winton^ and it was
“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 sáid 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
Thereafter a second amended petition was filed by Wirt K. Winton, as administrator of the estate of Charles F. Winton, deceased, in behalf of the estate of Winton and also of Winton’s associates and assigns. In this petition James K. Jones, administrator of James K. Jones, deceased, and Robert L. Owen, in his own behalf, joined. Intervening petitions were filed by William N. Vernon; Chester Howe, who died pending suit and in whose place his administratrix, Katie A. Howe, was substituted; and several others.
As shown by the findings the claim of Winton and associates arosq as follows: By Article 3 of the Treaty of September 27, 1830 (7 Stat. 333), known as the Treaty of Dancing Rabbit Creek, the Choctaw Nation of Indians ceded to the United States the entire country possessed by them east of the Mississippi River, and agreed to remove beyond the Mississippi during the three years next succeeding. But, in view of the fact that some of the Choctaws preferred not to move, it was provided in Article 14 that each head of a family who desired to remain and become a citizen of the States should be permitted to do so, and should thereupon be entitled , to a reservation of one section of land, with an additional half section for each unmarried child living with him over ten years of age, and a quarter section for each child under ten. If they resided upon said lands intending to become citizens of the States for five years after the ratification of the treaty, a grant in fee simple should issue; and it was further provided: “Persons who claim under this article shall.not lose the privilege.of a Choctaw citizen,"but if they ever remove are not to be entitled to any portion, of the Choctaw annuity.’/ By another article (19) reservations were provided for certain prominent Choctaws by name;
The mixed-blood Choctaws who elected to remain in Mississippi were provided for under Article 19, while the full bloods who remained and elected to become citizens of the State were provided for under Article 14; hence, full-blood Mississippi Ohoctaws have always been called “Fourteenth Article Claimants.” Choctaws who remained in Mississippi under that article adopted the dress, habits, customs, and manner of living of the white citizens of the State. They had no tribal or band organization or laws of their own, but were .subject to the laws of the State. They did-not live upon any reservation, nor did the Government exercise supervision or control over them. No funds were appropriated for their support, though much land was given to them. Neither the Indian Office nor the Department of the Interior assumed or exercised jurisdiction over them, and they never recognized them either individually or as bands, but regarded them as citizens of the State of Mississippi, and the Department held it had no authority to approve contracts made with them.
Pending the negotiation of the treaty, the Legislature of the State of Mississippi passed ah Act, January 19,1830, abolishing the tribal customs of Indians not recognized by the common law or the law of the State, making them citizens of the State, with the same rights, immunities, and privileges as free white persons, extending over them the laws of the State, validating tribal marriages, and abolishing the tribal offices and posts of power. Recognition of their citizenship was ‘ afterwards embodied in the state constitution. •
The right of the Fourteenth Article Mississippi Choctaws'to citizenship in the parent tribe appears to have been recognized at one time by the Choctaw Nation west, which had removed to Indian Territory pursuant to. the treaty.
By Act of March 3,1893, c. 209, § 1.6, 27 Stat. 612, 645, Congress created the Commission to the Five Civilized Tribes, familiarly known as the Dawes Commission, with, the object of procuring through negotiation the extinguishment of the national or tribal title to the lands of those tribes in the Indian Territory, either by their cession to the United States or allotment in severalty among the Indians, with a view to the ultimate creation of a State. By Act of June 10, 1896, c. 398, 29 Stat. 321, 339-340, the Commission was directed to make a complete roll of citizenship of each of the Five Civilized Tribes, and.applicants for enrollment were to make application to the Commission within three months from the passage of the act and have the right of appeal from its decision to the “United States District Court”-(construed by this court, in
Stephens
v.
Cherokee Nation,
At this time the full-blood Mississippi Choctaws were extremely poor, living, jn insanitary conditions and working at manual labor for'daily wages. Their children were not permitted to attend schools provided for the whites, and they were denied all social and political privileges. As already appears, they were receiving neither care nor attention from the Indian Office or the Department of the
The activities of Winton and associates for which recovery is asked date from this point. Soon after the passage of the Act of June 10, 1896, Messrs. Owen and Winton entered into an agreement under which the latter was to proceed to Mississippi and procure contracts with such Indians as might be entitled to participate in any distribution of lands or moneys of the Choctaw and Chickasaw Nations, arranging to secure evidence, powers of attorney, and contracts, as prescribed by Mr. Owen; Owen was to prepare the necessary forms and represent the claims of the Indians before the proper officers of the United States or Indian Governments, with the assistance and cooperation of Winton; Winton to receive one-half of the net proceeds of the contracts. A supplementary agreement between the. same parties provided in terms that Owen should have a half interest in the contracts, and in the event of accident to Winton should take them up as attorney in Winton’s place. Immediately thereafter Winton proceeded to Mississippi, and during the year 1896 and the years following procured approximately i,000 contracts with full-blóod Mississippi Choctaws, some in the name of Winton, some in the name of Owen, by the terms of which Winton and Owen agreed to use their best efforts to secure the rights of citizenship for said Mississippi Choctaws, as members of the Choctaw Nation, in the lands and funds of said tribe, for a fee of one-half the net interest of each allottee in any allotment thereafter secured. These contracts were subsequently abandoned by Owen and Winton because void and unenforceable under the Acts of June 28,' 1898, and May 31, 1900, referred to below, and new contracts were thereafter taken, principally in the name of Charles S. Daley, but in behalf
Early in 1897 -Mr. -Owen spoke to Hon. John Sharp Williams, then Representative in Congress from the Fifth Congressional District of Mississippi, wherein practically all full-blood 'Mississippi Choctaws resided, calling his attention to the possible rights of such Choctaws to participate in the partition of the lands of. the Choctaw Nation, at the same time submitting to him a copy of the Dancing Rabbit Creek Treaty, and calling his attention to Article 14. This was the first time the matter had been-called to the attention of Mr. Williams. Thereafter, and until March 4, 1903, when he ceased to represent that District, he. was active in all'matters of legislation concerning the Mississippi Choctaws.
In December, 1896, Winton presented to Congress a memorial 'in behalf of Jack Amos and other full-blood Mississippi Choctaws asking that their rights under Article 14 of the Treaty of 1830 be accorded to them, and that they be provided/f dr by enrollment either by the
In September, 1897, Winton presented a third memorial of like purport to the Secretary of the Interior. ■
Prior to the presentation of the first of these memorials, .and in September or October, 1896, Mr. Owen appeared before the Dawes Commission in behalf of Jack Amos and 97 other full-blood Choctaws residing in Mississippi, and- attempted to secure their enrollment under the Act of June 10, 1896. The- Commission refused, on the ground that they were not resident in the Indian Territory. Owen appealed to the United States Court for the Central District of Indian Territory, where the ruling of the Commission was affirmed. .This decision was “indirectly affirmed-”by this court on May 15,- 1899, in the case of
Stephens
v.
Cherokee Nation,
On February 11, 1897, a resolution drawn up by Mr. Owen was' passed by the Senate, directing the Secretary
About the same .time, Mr. Owen made an argument, before the Committee on Indian Affairs of the . House in support of House Bill No. 10,372, intended to permit the Mississippi Choctaws to continue to reside in that State and still claim the rights of- Choctaw citizens.- A favorable report was made by the Committee, March. 3, 1897 (House Report 3,080, 54th Cong., 2d sess.), but the bill'never passed either House..
In. the Indian Appropriation Act of June 7, 1897, however, the following provision was contained: “That the. commission appointed to negotiate with the Five Civilized Tribes in the Indian Territory shall examihe and report. to Congress whether the Mississippi Choctaws under their treaties are not entitled to all the rights of Choctaw citizenship except an interest in the Choctaw annuities ” (c. 3, 30 Stat. 62, 83).
Following the passage of this act Mr. Owen appeared before the Dawes Commission in the interest of the Mississippi Choctaws with whom he had contracts. On January 28, .1898, the Commission made a report to Congress as required by the act last mentioned (House Doc. 274, 55th Cong., 2d sess.), setting forth in brief the history of the Mississippi Choctaws and their then present condition; and submitting' an. elaborate argument in opposition to the contention that those Choctaws" might. Continue their residence and political status in Mississippi' as in the past and still enjoy all the rights of Choctaw citizenship except to share in' the Choctaw annuities;
On June 28,1898, Congress passed an act, commonly known as the Curtis Act, which contained in §21 provisions for the making of rolls of the Five Civilized Tribes by the Dawes Commission, and among others the following: “ Said commission shall have authority to determine the identity of Choctaw Indians claiming rights in the Choctaw lands under article fourteen of the treaty between the United States and the Choctaw Nation concluded September twenty-seventh, eighteen hundred and thirty, and to that end they may administer oaths, examine witnesses, and perform all other, acts necessary thereto and make report to the Secretary of the Interior. * * * * * * *
Public notice having been given in Mississippi as to the times and places at which the Commission would hear applications for identification under the -above provision, one of the Commissioners,- A. S. McKennon, proceeded to Mississippi in January, 1899, with a force of clerks and stenographers and there identified and made up a schedule of -1923' persons as being Mississippi Choctaws entitled to .citizenship in the Choctaw Nation under Article 14 of the treaty. The principle adopted was that proof of the fact that a claimant was a full-blood Indian whose ancestors were living in Mississippi at the date of the treaty was sufficient evidence to report his name as a Mississippi Choctaw under § 21 of the Curtis Act. This schedule, known as the “McKennon Roll,” was subsequently approved by the Commission, who for-., warded it with a report dated March 10, 1899, to the Secretary of the Interior. The schedule never was approved by the Secretary, and was attempted to be withdrawn by the Commission December 20, 1900, .errors having been discovered in it. It was formally disapproved by the Secretary March 1, 1907. The Court of Claims finds that “the work of Commissioner McKennon, covering a period of about three weeks, in identifying and making up said schedule, vras interfered with and retarded by said Charles F.' Winton, who endeavored to prevent the Indians from appearing for identification.” No explanation of this appears. At the same time it is found that Mr. Owen (who. of course was associated with Winton) furnished to Commissioner McKennon a list
Because of material errors, discovered by the Commission in the McKennon roll, another, party was organized and sefit out by the Commission for the purpose of making a more accurate and complete roll of the Mississippi Choctaws under the Act of 1898, whose hearings were commenced in Mississippi in December, 1900,. resumed. in April of the following year, and continued until the latter part of August, 1901.
February 7, 1900, Winton and associates presented á memorial to Congress praying that the treaty rights of the Mississippi Choctaws be so construed as to afford them the rights of Choctaw citizens without removal, or that they be permitted to havé those rights determined-in the courts. Congress took no action upon this.
April 4, 1900, Winton and his associates memorialized Congress .requesting the following amendment to the. Indian appropriation act then pending: “Provided, That any Mississippi Choctaw duly identified and enrolled as such by the United States. Commission to the Five Civilized Tribes shall have the right, at any time prior to the approval of the final rolls of the Mississippi Choctaws by the Secretary of the Interior, to make settlement within the Choctaw-Chickasaw country, and on proof of the fact of bona fide settlement they shall be enrolled by the Secretary of the Interior , as Choctaws entitled to allotment.”
The act as passed contained the following: “Provided, That aiiy Mississippi Choctaw duly identified as such by the United States Commission to the Five Civilized Tribes shall have the right, at any time prior to the approval of the final rolls, of the Choctaws and Chickasaws by the Secretary of the Interior, to make settlement within the Choctaw-Chickasaw country, and ón proof of the fact of bona fide settlement .may be enrolled by such
The Dawes Commission thereafter required from all applicants for enrollment proof of descent- from Choctaw Indians who remained in Mississippi and received parents for lands under the Fourteenth Article of the Treaty of 1830. This constituted a reversal of the principle previously adopted in making the McKennon Roll, to wit, a presumption that the ancestors of full-blood Choctaws residing in Mississippi had fully complied with the requirements of Article 14. It resulted that only six or seven persons claiming as Mississippi Choctaws were enrolled under the Act of May 31, 1900, although .from 6,000 to 8,000 applications were, filed in 1900 and the early part of 1901.
On April 1, 1901, the second party, already mentioned, sent by the Dawes Commission to Mississippi for the purpose of making a complete and accurate roll of Mississippi Choctaws, resumed hearings at Meridian, Mississippi, and held continuous sessions there and at other places in the State until the latter part of August. The Court of Claims finds that during these hearings and the making •of this roll the conduct of Winton and associates increased the work of enrollment and impeded its progress. Being advised by Owen and believing that the McKennon Roll was a finality and constituted a favorable judgment in behalf of the Choctaws whose names appeared therein, Winton ■ and associates advised all Indians who had been previously enrolled not to appear again before the Commission for identification. Nevertheless, as already stated, 6,000 or 8,000 applications for enrollment were made, of which only six or seven were accepted under, the stringent rule of proof adopted by the Commission.
March 21, 1902, while'preparation of the identification roll of Mississippi Choctaws was still in progress, án agreement was entered into between the Choctaw and Chickasaw Nations and the -Dawes Commission in .which, by sections 41, 42, 43 and 44, it was proposed to fix the status of the Mississippi Choctawb. This agreement, after some. amendments in Congress, was approved by Act of July 1, 1902, . and ratified by the Choctaws and Chickasaws'on .September25,1902 (c! 1362, 32 Stat.641, 651-652). It was under this agreement, known as the Chocthw-Chickasaw Supplemental Agreement, that practically all Mississippi Choctaws were enrolled and secured their rights to'allotments of Choctaw tribal lands. Section 41 as signed by the partiés. did not contain the full-blood rule of evidence — that is, that full-blood Choctaws living in Mississippi should be presumed to be descendants of Choctaws who had complied with the requirements of Article 14 of the Treaty of 1830. It permitted all persons identified by the ;Cómmission -under the provisions of §21 of the Act of June 28, 1898, as Mississippi Choctaws entitled .to benefits under Article 14 of the treaty to make
bona fide
settlement within the Choctaw-Chickasaw country at any time within six; months after, the date of the final ratification of the agreement, and upon proof of such settlement to the Commission within one year after the date of such ratification they were to be enrolled by the Commission as Mississippi Choctaws entitled to allotment; but declared: “The application of no person for identification as a Mississippi Choctaw shall be received by said Commission after the date of the final ratification of this agreement.” While the supplemental agreement
The passage of the Act of July 1,1902, as thus amended, was- opposed by Mr: Owen and the associates of Winton, who protested against the conditions contained in the amended sections relating to the Mississippi Choctaws as. finally adopted.
The Indian Appropriation Act of March 3, 1903, c. 994, 32 Stat. 982, 997, contained the following: “That the sum of twenty thousand dollars, or so much thereof as is necessary, is hereby appropriated,- to. be immediately available, for the purpose of aiding indigent and identified full-blood Mississippi Choctaws to remove to the Indian Territory, to be expended at the discretion and under the direction of the Secretary of the Interior.” The special disbursing agent of the Dawes Commission was sent to Mississippi to carry out- this provision. He there organized parties- and assembled all Indians who could be found and induced to .come, and they were later transported by special trains to Indian Territory and there further maintained until placed upon allotments, and supplied with tools and other equipment and rations for six months, all at the expense of the United.States. The total number thus transported, maintained, and equipped was 420.
The Dawes Commission received applications from approximately 25,000 persons for enrollment as Mississippi -Choctaws. Of this number 2,534 were identified by the Commission; but of these 956 failed to remove to Indian Territory or submit proof of their removal and settlement within the time prescribed by law. The . total number of applicants identified and finally enrolled and who have received allotments as members of the Choctaw Nation is 1,578, of whom only 833 appear on the McKennon Roll,
The funds derived from sales of allotted lands of enrolled Mississippi Choctaws subject to the restrictions upon alienation prescribed by § 1 of the Act of May 27, 1908, c. 199, 35 Stat. 312, are held by the Government to the credit of the individual Indians entitled thereto. All other funds belonging to enrolled Mississippi Choctaws are held as tribal funds, the names being carried on a separate roll.
As we construe the jurisdictional acts under which these claims were submitted to the Court of Claims, they contemplate not an action
in personam
to establish a personal liability against individual Indians, or a group of Indians, but a suit of an equitable nature against that class of Mississippi Choctaws who, through successful assertion of the right of citizenship in the Choctaw Nation, acquired allotments of lands in what formerly was the tribal domain, and a participation in funds held in trust by the United States; a suit having the object of imposing an equitable charge upon their funds and lands for a reasonable and proportionate contribution towards the value of services rendered and expenses incurred by. the claimants in securing for said class of Indians a beneficial participation in the trust estate, according to the principle applied in
Trustees
v.
Greenough,
It is thoroughly established that Congress has plenary authority over the Indians and all their tribal relations, and full power to legislate concerning their tribal property.
The claim of Winton, Owen, and associates, is based wholly upon services rendered — nothing being asked because of expenses incurred or moneys disbursed.. According to the findings the services rendered were in the nature of professional services before Congress and its committees, individual Representatives and Senators, the
The fact that in the present case the services were rendered under contracts with particular Indians, whether valid or invalid, is no obstacle to a recovery. Services not gratuitous, and neither
mala in se
nor
mala prohibita,
rendered under a contract that is invalid or unenforceable, may furnish a basis for an implied or constructive contract to pay their reasonable value.
King
v.
Brown, 2
Hill (N. Y.) 485, 487;
Erben
v.
Lorillard,
And assuming the last set of contracts made by Winton and Owen with the Mississippi Choctaws (including the Daley contracts) be regarded as valid, they still do not create an obstacle to the present suit. As between the claimants and their own clients, the existence of valid express contracts would bar recovery upon an implied contract. But there was no privity between claimants and me -Mississippi Choctaws as a class, no contract having been made with them in their aggregate capacity and the individual contracts not including all members of the .class. Under the equitable doctrine that we hold applicable, claimants, having substantially performed the agreements, might demand compensation under them as against their own clients, and the ktter would then be entitled to a ratable contribution upon the basis of a quantum meruit from their fellow beneficiaries whose interests in the trust estate were secured and rendered available through the services of claimants. And by way of avoiding circuity of action the equitable proceeding may well be brought, as it has been brought,' by claimants directly against the beneficiaries of the trust; claimants waiving, as they must, any right to recover under the contracts the measure of compensation prescribed therein. Hence, whether valid or invalid, the contracts are important merely as they show that claimants were.not intermeddlers but were employed by large numbers of Mississippi Choctaws, members of the benefited class, and that their services were not intended to.be gratuitous.
But, in order that there may be. an equitable charge in such a case, it is éssential that the services rendered shall have been substantially instrumental in producing a result beneficial to' the class of
cestuis que trustent
upon whose
But there were requests for additional findings, directed to the very point upon which'findings are wanting. These requests were preferred under Rules 90-95, but were filed more than the prescribed sixty days after judgment. The
Many of the requests, while suggestive of matters that might well have been included in the findings, either are not framed with sufficient definiteness to enable us to say that there was error in rejecting them, or are objectionable for other, reasons. But those here stated ought to have been acceded to:
XXIX-R (52 Ct. Clms. 128). “Whether or not the labor of Robert L. Owen in behalf of the rights of the Mississippi Choctaws to citizenship in the Choctaw Nation, from July, 1896, to 1906, resulted in any benefit or value whatever to the Mississippi Choctaws.”
XXXI-E (52 Ct. Clms. 130). “Whether ,or not the 1,643 Mississippi Choctaws who were admitted to citizenship in and received allotments as members of the Choctaw Nation obtained the right to become such citizens and thereby receive allotments as a result to any extent whatever of any of the labor and work done by Robert L. Owen and associates during the period of several years prior to the passage of the "acts under which they were enrolled and allotted; and what compensation is equitable or justly due therefor on the principle of quantum meruit as required by the jurisdictional act in this case.”
The reasons given for the rejection of these requests are not satisfactory; and for failure to make findings in response thereto, the judgment in the case of Winton and .associates, No. 6, must be reyersed, and the cause remanded fpr additional findings as requested.
In the other cases covered by the present appeals, viz., Bounds, No. 7, London, No. 8, Field and Lindly, No. 9, Beckham, No. 10, and Vernon, No. 11, the findings show no benefit conferred upon the Mississippi Choctaws as a class for which recovery can be had under the jurisdictional acts. The claims of Bounds, Beckham, and Vernon are based upon services rendered and expenses incurred in behalf of individual Indians. London did nothing to advance' the claims of the Mississippi Choctaws to citizen
No. 6. Judgment reversed, and the cause remanded for further findings of fact as above specified.
Nos. 7,8,9,10,11, and 12. Judgments affirmed.