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

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U.S. Supreme Court

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

United States v. Cherokee Nation

Nos. 346-348

Argued January 16-18, 1906

Decided April 30, 1906

202 U.S. 101

Syllabus

Under sec. 68 of the Cherokee Act of July 1, 1902, 32 Stat. 726, as construed by the Act of March 3, 1903, 32 Stat. 726, and the agreement of December 19, 1891, providing for the sale of the Cherokee Outlet, the Court of claims had jurisdiction of all claims of the Cherokee Indians against the United States, and the claims were to be reopened and reexamined de novo, and the court and the accountants were to go behind statutory and treaty bars and receipts in full, and were to consider any alleged and declared amount of money promised but withheld under any treaty or law.

The United States, as stated in the Slade & Bender account made under the agreement of December 19, 1891, and as found by the Court of Claims, is liable to the Cherokee Nation for $1,111,284.70, the amount paid for the removal of the Eastern Cherokee Indians to the Indian Territory, improperly charged to the treaty fund.

The question whether interest should be allowed on this fund having been submitted, under the Eleventh Article of the Cherokee Treaty of 1846, to the Senate of the United States, and that body having by resolution

Page 202 U. S. 102

found that interest should be allowed at five percent from June 12, 1838, until paid, the amount of interest was one of the subjects of difference referred to the Court of Claims under the Act of July 1, 1902, and that court had jurisdiction to allow interest, and correctly awarded it at the rate, and from the time specified, in the Senate resolution.

The term "Cherokee Tribe or any band thereof," as used in the Act of July 1, 1902, means the Cherokee people as a people, and not the Cherokee Nation as a body politic, and the Court of Claims correctly decided that the amount awarded to the Cherokee Nation be paid to the Secretary of the Interior to be by him received and distributed to the persons entitled thereto, but such distribution should be made as to the Eastern Cherokees as individuals whether East or West of the Mississippi, parties to the treaties of 1835, 1836, and 1846, exclusive of the Old Settlers.

The Eastern and Emigrant Cherokees are not entitled to their demand of one-fourth of the entire sum awarded, but only to per capita payment with the Eastern Cherokees.

Section 68 of the Act of Congress of July 1, 1902, entitled "An Act to Provide for the Allotment of the Lands of the Cherokee Nation, for the Disposition of Town Sites Therein [Described], and for Other Purposes," 32 Stat. 716, 726, reads as follows:

"Jurisdiction is hereby conferred upon the Court of Claims to examine, consider, and adjudicate, with a right of appeal to the Supreme Court of the United States by any party in interest feeling aggrieved at the decision of the Court of Claims, any claim which the Cherokee tribe, or any band thereof, arising under treaty stipulations, may have against the United States, upon which suit shall be instituted within two years after the approval of this act, and also to examine, consider, and adjudicate any claim which the United States may have against said tribe, or any band thereof. The institution, prosecution, or defense, as the case may be, on the part of the tribe or any band, of any such suit shall be through attorneys employed and to be compensated in the manner prescribed in sections twenty-one hundred and three to twenty-one hundred and six, both inclusive, of the Revised Statutes of the United States, the tribe acting through its principal chief in the employment of such attorneys, and the band acting through a committee recognized by the Secretary of the Interior. The Court of Claims shall have full authority, by proper orders and

Page 202 U. S. 103

process, to make parties to any such suit all persons whose presence in the litigation it may deem necessary or proper to the final determination of the matter in controversy, and any such suit shall, on motion of either party, be advanced on the docket of either of said courts and be determined at the earliest practicable time."

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

March 3, 1903, an act was approved entitled

"An Act Making Appropriations for the Current and Contingent Expenses of the Indian Department and for Fulfilling Treaty Stipulations with Various Indian Tribes for the Fiscal Year Ending June Thirtieth, Nineteen Hundred and Four, and for Other Purposes"

32 Stat. 982, 996, containing the following provisions:

"Section sixty-eight of the Act of Congress entitled 'An Act to Provide for the Allotment of the Lands of the Cherokee Nation, for the Disposition of Town Sites Therein, and for Other Purposes,' approved July first, nineteen hundred and two, shall be so construed as to give the Eastern Cherokees, so called, including those in the Cherokee Nation and those who remained east of the Mississippi River, acting together or as two bodies, as they may be advised, the status of a band or bands, as the case may be, for all the purposes of said section: Provided, That the prosecution of such suit on the part of the Eastern Cherokees shall be through attorneys employed by their proper authorities, their compensation for expenses and services rendered in relation to such claim to be fixed by the Court of Claims upon the termination of such suit, and said section shall be further so construed as to require that both the Cherokee Nation and said Eastern Cherokees, so called, shall be made parties to any suit which may be instituted against the United States under said section upon the claim mentioned in House of Representatives' Executive Document Numbered Three Hundred and Nine of the second session of the

Page 202 U. S. 104

Fifty-seventh Congress, and if said claim shall be sustained in whole or in part, the court claims, subject to the right of appeal named in said section, shall be authorized to render a judgment in favor of the rightful claimant, and also to determine, as between the different claimants, to whom the judgment so rendered equitably belongs, either wholly or in part, and shall be required to determine whether, for the purpose of participating in said claim, the Cherokee Indians who remained east of the Mississippi River constitute a part of the Cherokee Nation or of the Eastern Cherokees, so called, as the case may be."

The claim mentioned in said H.R.Ex.Doc. No. 309, 57th Cong., 2d sess., is therein referred to as "the award rendered under the Cherokee agreement of December 19, 1891, ratified by act of Congress approved March 3, 1893."

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

March 20, 1903, a petition was filed on behalf of certain Eastern Cherokees, living east of the Mississippi, amended September 3, 1903, when petitioners took the title of the Eastern and Emigrant Cherokees, asserting their claim to a pro rata share of --

"That portion of the removal and subsistence fund improperly taken by the United States from the five million fund on account of removal of Eastern Cherokees, as found

Page 202 U. S. 105

by the expert accountants, Messrs. Slade & Bender, April 28, 1894, the said five million fund being an interest-bearing fund in the hands of the United States, as trustee, and representing the money paid by the government to the Eastern Cherokees for the sale of their lands in North Carolina, Georgia, and Tennessee, or east of the Mississippi River, as set forth in article first of the treaty of New Echota, in north Georgia, on March 14, 1835, and articles 2 and 3 of the supplemental treaty proclaimed May 23, 1836, this sum so misapplied amounting, in accordance with said accounting, to $1,111,284.70, with interest at five percent per annum from the date of said wrongful taking, June 12, 1838, to date."

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

Among the facts found were these:

"

XVIII

"

"By section 14 of the act of Congress entitled 'An Act Making Appropriations for the Current and Contingent Expenses of the Indian Department, and for Fulfilling Treaty Stipulations with Various Indian Tribes for the Year Ending June 30, 1890, and for Other Purposes,' approved March 2, 1889 (25 Stat. 1005), the President was authorized to appoint three commissioners to negotiate with the Indian tribes owning or claiming lands lying west of the ninety-sixth degree of longitude in the Indian Territory for the cession to the United States of all their title, claim, or interest of every kind or character in and to said lands, and he did appoint David H. Jerome, Alfred M. Wilson, and Warren G. Sayre such commissioners."

"By virtue of the authority contained in an act of the Cherokee national council approved November 16, 1891, Elias C. Boudinot, Joseph A. Scales, Roach Young, William Triplett, Thomas Smith, Joseph Smallwood, and George Downing were duly appointed commissioners --"

" To meet and enter into negotiations with the above-named

Page 202 U. S. 106

commission, appointed by the President of the United States, for the cession of the lands of the Cherokee Nation west of the 96th degree of west longitude, and for the final adjustment of all questions of interest between the United States and the Cherokee Nation which are now unsettled."

"By said act of Congress, it was made the duty of said commissioners appointed by the President to report all agreements resulting from such negotiations to the President, to be by him reported to the Congress at its next session, and by the act of the Cherokee council it was made the duty of the commissioners, on the part of the Cherokee Nation, to report all their proceedings in full to the national council for its approval and ratification. Ex.Doc. 56, 52d Cong., 1st sess., 17."

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

"On the 19th of December, 1891, after prolonged negotiations, the commissioners above named entered into articles of agreement, by Article I of which it was agreed that --"

" The Cherokee Nation, by act duly passed, shall cede and relinquish all its title, claim, and interest of every kind and character in and to that part of the Indian Territory bounded on the west by the one hundredth (100�) degree of west longitude, on the north by the State of Kansas, on the east by the ninety-sixth (96�) degree west longitude, and on the south by the Creek Nation, the Territory of Oklahoma, and the Cheyenne and Arapahoe reservation created or defined by Executive order, dated August 10, 1860, the tract of land

Page 202 U. S. 107

embraced within the above boundaries containing eight million, one hundred and forty-four thousand, six hundred and eighty-two and ninety-one one-hundredths (8,144,682.91) acres, more or less."

"By article 2 that --"

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

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

" Second. That a certain article of the antecedent treaty of July, 1866, should be abrogated and held for naught."

" Third. That the judicial tribunals of the Cherokee Nation should have exclusive jurisdiction in certain cases."

" Fourth. That--"

" The United States shall, without delay, render to the Cherokee Nation, through any agent appointed by authority of the national council, a complete account of moneys due the Cherokee Nation under any of the treaties ratified in the years 1817, 1819, 1825, 1828, 1835-1836, 1846, 1866, and 1868, and any laws passed by the Congress of the United States for the purpose of carrying said treaties, or any of them, into effect, and upon such accounting, should the Cherokee Nation, by its national council, conclude and determine that such accounting is incorrect or unjust, then the Cherokee Nation shall have the right, within twelve months, to enter suit against the United States in the Court of Claims, with the right of appeal to the Supreme Court of the United States by either party, for any alleged or declared amount of money promised but withheld by the United States from the Cherokee Nation, under any of said treaties or laws, which may be claimed to be omitted from, or improperly or unjustly or illegally adjusted in, said accounting, and the Congress of the United States shall at its next session after such case shall be finally decided and certified to Congress according to law, appropriate a sufficient sum of money to pay such judgment to the Cherokee Nation, should judgment be rendered

Page 202 U. S. 108

in her favor; or, if it shall be found upon such accounting that any sum of money has been so withheld, the amount shall be duly appropriated by Congress, payable to the Cherokee Nation, upon the order of its national council, such appropriation to be made by Congress, if then in session, and if not, then at the session immediately following such accounting."

" Fifth. That certain citizens of the Cherokee Nation should have the right to select lands as homesteads under certain conditions; and"

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

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

"Prior to the acceptance and ratification of said agreement on the part of the United States as aforesaid, the commissioners on behalf of the United States, as required by the law under which they were appointed, had reported to the President the making of the articles of agreement aforesaid, and by way of explanation said:"

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

" The accounting provided for in the fourth subdivision of Article 2 of the agreement is inserted and agreed to, because

Page 202 U. S. 109

the Cherokees are compelled to accept the construction of the treaties made by the executive and administrative branches of the government."

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

"Sen.Ex.Doc. 56, 52d Cong., first sess., pp. 11, 12."

"Gen. Thomas J. Morgan, Commissioner of Indian Affairs, in his report to the Secretary of the Interior on February 6, 1892, made the following explanation and comment on the fourth section of Article 2, to-wit:"

" The fourth section of Article 2 provides for an accounting between the United States and the Cherokee Nation. The work necessary to render this account will be very heavy, and much time will be necessary to properly prepare the same. On this provision of the agreement, the commissioners say:"

" The government has made the accounting, has kept the books, has construed the treaties. If this has been done properly, no harm can come from restating the account. If it has not been done properly, no possible reason can exist why the error should not be corrected. It creates no new obligations against the government, but only provides for legal discharge of the old ones."

" This seems to me to be a reasonable view to take of this provision, and I do not see that any valid objection could be advanced against it. "

Page 202 U. S. 110

" In your reference of the matter to this office, you said:"

" Particular attention is called to section 4 of Article 2 of the agreement, with request for a full report as to what may be the state of the account between the United States and the Cherokees, if practicable, within a reasonable time; if not, your general conclusions."

" In reply to this indorsement, I have the honor to say that if this section is construed to require the United States to state an account of moneys stipulated to be paid to the Cherokee Nation under the treaties therein specified and under the various appropriation acts to carry the same into effect, this account could be prepared by this office within a reasonable time, say about two months. If, on the other hand, it be construed to require a detailed statement of all the moneys received and disbursements made by the United States of the Cherokee funds under said treaties and acts of Congress, which seems to me to be the intention of the parties negotiating the agreement, it would require the services of an expert accountant, with assistants, probably twelve months or more to review and copy the Cherokee accounts and records running back nearly a century. In order to prepare a statement of this kind, it would require an appropriation by Congress of the sum of at least $5,000 to pay for the services of an expert accountant, and in the draft of a bill for the ratification of the agreement herewith enclosed, I have provided for the appropriation of that sum, or so much thereof as may be necessary for that purpose."

"Senate Ex.Doc. No. 56, 52d Cong., 1st sess., p. 8."

"This report of the Commissioner was, on or about February 8, 1892, referred by the Secretary of the Interior to the Assistant Attorney General for the Interior Department 'for his consideration and report upon the legality of the contract, the sufficiency of the proposed bill, and his views upon the questions of law relating to the subject,' and on or about February 25, 1892, said officer reported thereon, as appears

Page 202 U. S. 111

in said Senate Executive Document 56, Fifty-second Congress, first session, saying, among other things:"

" The report and agreement were referred to the Commissioner of Indian Affairs, who, under date of February 6, 1892, reported favorably on the agreement, and transmitted with his report the draft of a bill to be submitted to Congress to ratify and carry out the provisions thereof. . . . The agreement contains two articles. The first relates to the cession, and the second to the consideration therefor. . . ."

" The considerations for said cession, as contained in Article 2, are set forth under six subdivisions. . . ."

" The fourth and next provision of Article 2 of the agreement requires the United States to render to the Cherokee Nation a complete accounting of all money agreed to be paid to the Indians, or which they may be entitled to under any treaty or act of Congress since 1817. And if said accounting is satisfactory, Congress shall make the necessary appropriation to pay the same. But if the accounting is not satisfactory, then the Cherokees to have the right to institute suit in the Court of Claims against the United States for the claimed amount, and Congress is to make the necessary appropriation to pay the judgment, if any, recovered."

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

" The Commissioner of Indian Affairs asks for a special appropriation of $5,000 to enable him to make the accounting."

"All of these reports were before the Congress when it accepted and ratified said Articles of agreement by Act of March 3, 1893, 27 Stat. 641, in the following language, to-wit:"

" Which said agreement is fully set forth in the message of the President of the United States, communicating the same to Congress, known as Executive Document No. 56 of the first session of the Fifty-second Congress, the lands referred

Page 202 U. S. 112

to being commonly known and called the 'Cherokee Outlet,' and said agreement is hereby ratified by the Congress of the United States, subject, however, to the Constitution and laws of the United States and the acts of Congress that have been or may be passed regulating trade and intercourse with the Indians, and subject also to certain amendments thereto, as follows: . . . [Amendments not important here.] . . ."

" And the provisions of said agreements so amended shall be fully performed and carried out on the part of the United States. provided that the money hereby appropriated shall be immediately available, and the remaining sum of eight million, three hundred thousand dollars, or so much thereof as is required to carry out the provisions of said agreement as amended and according to this act, to be payable in five equal annual installments, commencing on the fourth day of March, eighteen hundred and ninety-five, and ending on the fourth day of March, eighteen hundred and ninety-nine, said deferred payments to bear interest at the rate of four percentum per annum, to be paid annually, and the amount required for the payment of interest as aforesaid is hereby appropriated; . . ."

"* * * *"

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

"* * * *"

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

Page 202 U. S. 113

"

XIX

"

"By said Act of March 3, 1893, ratifying said agreement for the purchase of the 'Cherokee Outlet,' the Congress also provided as follows:"

" The sum of five thousand dollars, or so much thereof as may be necessary, the same to be immediately available, is hereby appropriated, out of any money in the treasury not otherwise appropriated, to enable the Commissioner of Indian Affairs, under the direction of the Secretary of the Interior, to employ such expert person or persons to properly render a complete account to the Cherokee Nation of moneys due said nation, as required in the fourth subdivision of Article 2 of said agreement."

"Thereafter James A. Slade and Joseph T. Bender were employed as experts under the provisions of said section of said act, and they made and rendered an account pursuant to the provisions of paragraph 4 of Article 2 of the Articles of agreement of December 19, 1891, as ratified and affirmed by said Act of March 3, 1893. Said account was, by the Secretary of the Interior, referred to the Commissioner of Indian Affairs for examination and report, and the same having been examined and approved by said Commissioner, was by the latter returned to the Secretary of the Interior, who transmitted the same to the Cherokee Nation by delivering a copy thereof to R. F. Wyley, its properly constituted agent for receiving the same, and said account so made, rendered, and transmitted, was accepted by the Cherokee Nation by an act of its national council approved December 1, 1894, and no suit was thereafter brought by the Cherokee Nation against the United States, charging that said account was in anywise incorrect or unjust, but, on the contrary, the principal chief of the Cherokee Nation, as required by the act of its national council above referred to, did notify the Secretary of the Interior of the acceptance by said nation of said account as so stated by Messrs. Slade and Bender, and did request said Secretary of the Interior to notify the Congress of the United States of

Page 202 U. S. 114

such acceptance, and on the 7th of January, 1895, the Secretary of the Interior reported the entire matter to the Congress in the following words:"

" Sir: I have the honor to herewith transmit, in compliance with the provisions of the third subdivision of Article 2 of the agreement made December 19, 1891, with the Cherokee Indians, ratified by the Act of Congress approved March 3, 1893 (27 Stat. 643), a certified copy of 'a complete account of moneys due the Cherokee Nation under any of the treaties made in the years 1817, 1819, 1825, 1833, 1835, 1836, 1846, 1866, and 1868, and any laws passed by the Congress of the United States for the purpose of carrying said treaties, or any of them, into effect,' prepared in accordance with the provisions of the said Act of March 3, 1893, together with a certified copy of an act of Cherokee national council, accepting such accounting."

" The Speaker of the House of Representatives."

"House Ex.Doc. No. 182, 53d Cong., 3d sess."

"

XX

"

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

" The foregoing statement covers, it is believed, every point at issue which can be raised under the treaties described in the Articles of agreement [a number of demands made by the Cherokee Nation were disallowed], and the result of the finding is submitted in the following schedule:"

Under the treaty of 1819:

Value of three tracts of land

containing 1,700 acres, at

$1.25 per acre, to be added

to the principal of the

"school" fund . . . . . . . . . . . . $2,125.00

(With interest from February

27, 1819, to date of payment.)

Page 202 U. S. 115

Under treaty of 1835:

Amount paid for removal of

Eastern Cherokees to the

Indian Territory, improperly

charged to treaty fund. . . . . . . . 1,11,284.70

(With interest from June 12,

1838, to date of payment.)

Under treaty of 1866:

Amount received by receiver

of public moneys at

Independence, Kansas, never

credited to Cherokee Nation. . . . . 432.28

(With interest from January 1,

1874, to date of payment.)

Under act of Congress, March 3, 1893

Interest on $15,000 of Choctaw

funds applied in 1863 to

relief of indigent Cherokees,

said interest being improperly

charged to Cherokee national fund . . 20,406.25

" Washington, D.C., April 28, 1894"

" (Signed)"

" JAS. A. SLADE "

" JOS. T. BENDER"

"

XXI

"

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

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

For improvements . . . . . . . . . . . . $1,540,572.27

For ferries. . . . . . . . . . . . . . . 159,572.12

For spoliations. . . . . . . . . . . . . 264,894.09

For removal and subsistence,

being the amount actually

provided and expended for

these purposes, and consisting

of the following items: . . . . $335,105 91

1,047,067.00 1,382,172.91

For debts and claims upon the

Cherokee Nation. . . . . . . . . . . . 101,348.31

For the additional quantity of

land ceded to the nation . . . . . . . 500,000.00

Page 202 U. S. 116

For amount invested as the

general fund of the nation . . . . . . 500,880.00

For subsistence furnished after

expiration of one year, under

agreement that it should be

charged to treaty fund . . . . . . . . 172,316.47

-------------

4,621,756.17

For lands and possessions. . . . . . . . 5,000,000.00

For spoliations. . . . . . . . . . . . . 264,894.09

Balance of $600,000 applicable

to removal . . . . . . . . . . . . . . $335,105.91

Appropriation of June 12, 1838 . . . . . 1,047,067.00

-------------

6,647,067.00

From which deduct charges as

above. . . . . . . . . . . . . . . . . 4,621,756.17

-------------

Balance to be distributed per

capita . . . . . . . . . . . . . . . . 2,025,310.83

Deduct amount actually

distributed as already

explained. . . . . . . . . . . . . . . 914,026.13

-------------

Balance due . . . . . . . . . . . . 1,111,284.70

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

Amount found due by Treasury

officials, under Article 9, 1846,

in the report of the Auditor

and Comptroller of December

3, 1849. . . . . . . . . . . . . . . . $627,603.95

Erroneous charge corrected by

act of February 27, 1851 (9

Stat. 570, c. 12). . . . . . . . . . . 96,999.42

Erroneous charge account

subsistence, corrected by Congress,

September 30, 1850 . . . . . . . . . . 189,151.24

-------------

914,026.13

"This amount of $914,026.13 was distributed solely to 14,098 Eastern Cherokees in the West and 2,133 Eastern Cherokees who remained East."

"Interest on the above sum of $914,026.13 at five percent from June 12, 1838, was also appropriated by Congress and distributed per capita to said Eastern Cherokees in the same payment. The balance to be distributed per capita according to the above report and which was not distributed, to-wit, $1,111,284.70, is the sum of which the Eastern Cherokees complain they were deprived in the settlement of 1852; that, while they received only $56.31 per capita, excluding interest,

Page 202 U. S. 117

they should have received the further sum of $1,111,284.70, or a total of $2,025,310.83, as appears in the above account rendered as the true balance under Article 9, making them a total per capita of $124.78."

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

"

XXII

"

" Neither the whole nor any portion of the various sums with interest found and stated by the concluding schedule of the so-called Slade-Bender report to be due to the Cherokee Nation under the treaties and acts of Congress therein referred to have been paid to the Cherokee Nation, or to any officer, agent, or other person acting in its behalf."

"With the exception of the provision contained in the Act of March 2, 1895, making appropriations for the legislative, executive, and judicial expenses of the government, directing the Attorney General to review and report upon the conclusion of law disclosed in the account of Slade and Bender, and the passing of the provisions of the acts of July 1, 1902, and March 3, 1903, conferring jurisdiction upon the United States Court of Claims to hear and determine these causes, the Congress has taken no action whatever with respect to the said account of Slade and Bender or the amounts found due thereunder."

"Acting under said direction of March 2, 1895, above referred to, the Attorney General of the United States, on December 2, 1895, addressed a communication to the Congress wherein he advised that body of his disagreement with the conclusions reached by said Slade and Bender. Said communication of the Attorney General was, on December 2, 1895, by the Congress referred to the Committee on Indian Affairs and ordered to be printed, and the same appears in Senate Executive Document No. 16, Fifty-fourth Congress, first session."

May 18, 1905, the court

"adjudged, ordered, and decreed

Page 202 U. S. 118

that the plaintiff, the Cherokee Nation, do have and recover of and from the United States as follows:"

Item 1. The sum of . . . . . . . . . . . . . . $2,125.00

With interest thereon at the

rate of five percent from

February 27, 1819, to date of payment.

Item 2. The sum of . . . . . . . . . . . . . . 1,111,284.70

With interest thereon at the

rate of five percent from June

12, 1838, to date of payment.

Item 3. The sum of . . . . . . . . . . . . . . 432.28

With interest thereon at the

rate of five percent from

January 1, 1874, to date of payment.

Item 4. The sum of . . . . . . . . . . . . . . 20,406.25

With interest thereon from

July 1, 1893, to date of payment.

"The proceeds of said several items, however, to be paid and distributed as follows:"

"The sum of $2,125, with interest thereon at the rate of five percent from February 27, 1819, to date of payment, less five percent thereof contracted by the Cherokee Nation to be paid as counsel fees, shall be paid to the Secretary of the Interior in trust for the Cherokee Nation, and shall be credited on the proper books of account to the principal of the 'Cherokee school fund' now in the possession of the United States and held by them as trustees."

"The sum of $432.28, with interest thereon at the rate of five percent from January 1, 1874, to date of payment, less five percent thereof contracted by the Cherokee Nation to be paid as counsel fees, shall be paid to the Cherokee Nation, to be received and receipted for by the treasurer or other proper agent of said nation entitled to receive it."

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

Page 202 U. S. 119

"The sum of $1,111,284.70 with interest thereon from June 12, 1838, to date of payment, less such counsel fees as may be chargeable against the same under the provisions of the contract with the Cherokee Nation of January 16, 1903, and such other counsel fees and expenses as may be hereafter allowed by this Court under the provisions of the Act of March 3, 1903, 32 Stat. 996, shall be paid to the Secretary of the Interior, to be by him received and held for the uses and purposes following:"

"First. To pay the costs and expenses incident to ascertaining and identifying the persons entitled to participate in the distribution thereof and the costs of making such distribution."

"Second. The remainder to be distributed directly to the Eastern and Western Cherokees, who were parties either to the treaty of New Echota, as proclaimed May 23, 1836, or the treaty of Washington of August 6, 1846, as individuals, whether east or west of the Mississippi River, or to the legal representatives of such individuals."

"So much of any of the above-mentioned items or amounts as the Cherokee Nation shall have contracted to pay as counsel fees under and in accordance with the provisions of sections 2103 and 2106, both inclusive, of the Revised Statutes of the United States, and so much of the amount shown in item numbered two (2) as this Court hereafter, by appropriate order or decree, shall allow for counsel fees and expenses under the provisions of the Act of March 3, 1903, above referred to, shall be paid by the Secretary of the Treasury to the persons entitled to receive the same, upon the making of an appropriation by Congress to pay this judgment."

"The allowance of fees and expenses by this Court under said Act of March 3, 1903, is reserved until the coming in of the mandate of the Supreme Court of the United States."

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

Page 202 U. S. 120

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