The provision in the Act of August 30, 1852, c. 103, § 3, 10
Stat. 41, 56, forbidding payment of Indian annuities to any
attorney or agent and requiring the same to be paid to the Indians
or to the tribe did not give any vested rights to the Indians, but
was a direction to agents of the United States.
In the Indian treaties under consideration in this case, the
government dealt with the tribes, and not with individuals, and the
treaties gave rights only to the tribes, and not to the
members.
Under the Act of Mar. 1, 1907, c. 2290, 34 Stat. 1055,
authorizing this suit, the action is analogous to one at law to
recover money paid under mistake of law or fact, rather than one in
equity, and this Court follows the rule not to go behind the
findings of the Court of Claims.
United States v. Old
Settlers, 148 U. S. 427,
distinguished.
45 Ct.Cl. 287, affirmed.
The facts, which involve the determination of the status of Sac
and Fox Indians under certain treaties and statutes, are stated in
the opinion.
Page 220 U. S. 482
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a suit brought by the Sac and Fox Indians of the
Mississippi in Iowa, against the Sacs and Foxes in Oklahoma, and
against the United States, under the Act of March 1, 1907, c. 2290,
34 Stat. 1055. That statute gave "full legal and equitable
jurisdiction, without regard to lapse of time," to the Court of
Claims to hear and determine "as justice and equity may require,
with right of appeal" to this Court, all claims of the plaintiffs
against the defendants for their alleged "proportionate shares,
according to their numbers," not already paid to or for them, or
appropriations for fulfilling treaty stipulations, or arising from
the disposal or sale of the tribes' lands, including certain claims
to be stated. Reports of departments printed as congressional
documents are made evidence, to "be given such weight as the court
may determine for them." The claims made are (1) for annuities
between 1855 and 1866, both inclusive; (2) for the difference
between the sums paid and those alleged to have been due from 1867
to 1884; (3) for a similar difference from 1884 to date; (4) for a
sum alleged to be due for pay of the plaintiffs' chiefs; (5) for
the plaintiffs' share of the proceeds of tribal lands disposed of
under a Treaty of 1859. The case was heard on the evidence
furnished by the above-mentioned documents, the petition was
dismissed, and the plaintiffs took this appeal. 45 Ct.Cl. 287.
The facts found by the Court of Claims, abridged, are as
follows: under the Treaty of October 11, 1842, 7 Stat. 596, the
tribes in question ceded the land then occupied by them in the
Territory of Iowa, were assigned a tract in what now is Kansas, and
removed thither in 1845, 1846; then numbering 2,278, and, in 1851,
2,660 persons. In 1855, and from 1862 to 1866, certain members,
number unknown, without permission from the United States,
returned
Page 220 U. S. 483
to what had been a part of the Iowa reservation. Their motives
are immaterial. On July 15, 1856, the Legislature of Iowa passed an
act giving the consent of the state that the Indians (Sacs and
Foxes) "now residing" in Tama County, but none others, be permitted
to remain there; providing for a census, and requesting the
governor to inform the Secretary of War and urge the payment to
such Indians of their proportion of the annuities due or to become
due to the tribe. The number of Indians embraced in the act does
not appear. From 1855 to 1866, there was no agent of the United
States with the Iowa band, although its existence was known. A
special agent took a census on May 31, 1866, which gave the whole
number as 264, and he spent on account of annuities for them,
$5,359.06. Except this sum, all the annuities and other moneys of
the tribe were paid out at the Sac and Fox agency, Kansas. Whether
any Indians returned to Kansas and received payments there does not
appear. At this time, up to 1867, annuities were paid subject to
the Act of August 30, 1852, c. 103, § 3, 10 Stat. 41, 56, which
forbade payment to be made to any attorney or agent, and required
it to be made directly to the Indians themselves or to the tribe
per capita,
"unless the imperative interest of the Indian or Indians, or
some treaty stipulation, shall require the payment to be made
otherwise, under the direction of the President."
The policy and practice of the government were to pay no
annuities to Indians absent from reservations without leave, as
were the Iowa band, and nothing to the contrary is implied by the
Act of 1852.
We interrupt the recital of facts to dispose at this point of
the first claim made by the plaintiffs. The Act of 1852 gave no
vested rights to individuals. It was not a grant to the Indians,
but a direction to agents of the United States, subject to other
directions from the President.
See Wisconsin & Michigan Ry.
Co. v. Powers, 191 U.S.
Page 220 U. S. 484
379,
191 U. S. 387.
The government did not deal with individuals, but with tribes.
Blackfeather v. United States, 190
U. S. 369,
190 U. S. 377.
See Fleming v. McCurtain, 215 U. S.
56. The promises in the treaties under which the
annuities were due were promises to the tribes. Treaties of
November 3, 1804, 7 Stat. 84; October 21, 1837, 7 Stat. 540;
October 11, 1842, 7 Stat. 596.
See Treaty of October 1,
1859, 15 Stat. 467. So the Treaty of February 18, 1867, in article
21, speaks of "the funds arising from or due the nation under this
or previous treaty stipulations," and of payments to bands. 15
Stat. 495, 504. Moreover, when the government decided to pay only
at the tribal agency, and then paid the whole amount due, we must
presume at this distance of time that its decision was made under
the direction of the President. The Court of Claims adds as yet a
further reason for rejecting this claim, that it does not appear
how many of the Iowa Indians returned to Kansas to receive their
annuities, but (therein varying from the statement of facts found)
that it does appear that some of them did. The course of the
government is sanctioned in principle by the implication of the
Treaty of October 1, 1859, article 7, 15 Stat. 467, 469. That
article recites the anxiety of the Sacs and Foxes that all members
of the tribes should share the advantages of the treaty, invites
nonresident members to come in, and provides for notice to them,
but adds the condition that those who do not rejoin and permanently
reunite with the tribe within one year shall not have the benefit
of any of the stipulations in the treaty contained.
On February 18, 1867, another treaty was made, amended September
2, 1868, proclaimed on October 14, 1868, 15 Stat. 495, by which the
tribes sold their lands in Kansas to the United States, and agreed
to remove to a reservation in what now is the State of Oklahoma.
Article 21 was like article 7 of the Treaty of 1859, just
mentioned, with a condition that no part of the funds
Page 220 U. S. 485
due to the nation under this or previous treaties should be paid
to any bands or parts of bands not permanently residing on the
reservation, except those residing in Iowa. 15 Stat. 504. The
soon-following Indian Appropriation Act of March 2, 1867, c. 173,
14 Stat. 492, 507, provided, as permitted by the Treaty of 1859,
Art. 6, that the band of Sacs and Foxes
"now in Tama County, Iowa, shall be paid
pro rata,
according to their numbers, of the annuities, so long as they are
peaceful and have the assent of the government of Iowa to reside in
that state."
This is subject to the same comment as the Act of 1852 when
relied upon as a foundation for individual rights under it. From
1867 through 1884, the Iowa Indians were paid $11,174.66 as their
proportion of the annuities, although they protested, and for a
time refused to receive the same. The matter was settled by a
clause in the Act of May 17, 1882, c. 163, 22 Stat. 78,
"That hereafter the Sacs and Foxes of Iowa shall have
apportioned to them from appropriations for fulfilling the
stipulations of said treaties no greater sum thereof than that
heretofore set apart for them."
This by implication ratified the previous estimates, and leaves
no more to be said as to the second claim (for the time from 1867
to 1884). It is suggested, to be sure, that the Act of 1882 was
repealed by the Act of 1884, but, as will be seen directly, it was
not repealed so far as it affected this claim. After the Act of
1882, the Iowa Indians consented to receive the apportioned sum. We
may add that there is nothing to show that all the Indians that had
the assent of the government of Iowa, given by the Act of 1856, to
their residing there, were not paid their full share.
By the Act of July 4, 1884, c. 180, 23 Stat. 76, 85, after an
appropriation for interest payable under the Treaty of 1842, it was
provided that thereafter, the Iowa Sacs and Foxes should have
apportioned to them, from treaty appropriations,
"their
per capita proportion of the amount
Page 220 U. S. 486
appropriated in this act, subject to provisions of treaties with
said tribes; but this shall apply only to the Sacs and Foxes now in
Iowa:
And provided further, That this shall apply only to
original Sacs and Foxes now in Iowa, to be ascertained by the
Secretary of the Interior."
As to the word "original," we may compare the proviso in the Act
of March 2, 1867, stated above. The Secretary of the Interior
ascertained the number to be 317 and the number on the Oklahoma
reservation to be 505 in 1884 and 513 in 1887. He accordingly
apportioned the proper fund in the proportion of 317 to 505 in 1885
and 1886, and afterwards, to 1907, in the proportion of 317 to 513.
The plaintiffs attempt to go behind this ascertainment by the
Secretary. But here for a third time we are dealing, with a
statute, not with a treaty. There is no intimation of an intent to
change the terms of the treaties, by which the contracts were made
not with individuals, but with the tribes. The statute neither
changed nor conferred rights. It simply directed the Secretary of
Interior how the contracts of the United States should be
performed. They were performed as directed, to the seeming
satisfaction of the representatives of the contractees, and there
is an end of the matter. Here again we may add that, although it is
argued that the evidence shows that the Secretary's estimate was
too small for years after 1887, the evidence does not show that the
additional Indians were or represented original Sacs and Foxes "now
[
i.e., on July 4, 1884] in Iowa." This disposes of the
third claim.
However, the Iowa Indians not being satisfied, and having
presented a memorial to Congress setting up their present claims
except that for pay of their chiefs, the Act of March 2, 1895, c.
188, 28 Stat. 876, 903, directed the Secretary of the Interior to
ascertain whether, under any treaties or acts of Congress, any
amount was justly due to them from the members of the tribe in
Oklahoma by reason of any unequal distribution. The Secretary
found
Page 220 U. S. 487
that a certain sum was due from the amount appropriated by act
of April 10, 1869, c. 16, 16 Stat. 13, 35, in payment for the
Kansas lands ceded by the Treaty of 1867, but nothing more. This
sum was paid. Act of June 10, 1896, c. 398, 29 Stat. 321, 331.
The fourth claim is based upon article 4 of the Treaty of 1842,
by which it was agreed that each of the principal chiefs should
receive $500 annually,
"out of the annuities payable to the tribe, to be used and
expended by them for such purposes as they may think proper, with
the approbation of their agent."
This, like the rest of the treaty, was a promise not to the
chiefs, but to the tribe; gave the chiefs no vested rights, and was
subject to such qualification in its performance as to the parties
might seem fit. Whether a payment to Iowa chiefs would have been
performance may be doubted, and certainly if the parties saw fit to
treat the chiefs on the reservation as the only ones to be paid, no
one else has anything to say. The Act of May 31, 1900, c. 598, 31
Stat. 221, 245, directed the Secretary of the Interior to pay a
named Iowa head chief $500 a year during the remainder of his life,
beginning with and including the fiscal year 1900, in accordance
with the terms of article 4 of the Treaty of 1842, but that is not
enough to establish that he had been guilty of mistake in not
making the same payment before the time that he was ordered to
begin.
The fifth and last claim is for a share in proceeds of land
ceded by the Treaty of 1859. As to this, the Court of Claims finds
it impossible to ascertain what sum, if any, is due, or to whom it
would be payable. We do not see how the claim can be supported when
the treaty itself provided that, to benefit by it, members must
rejoin the tribe, meaning the tribe in Kansas, within one year. It
is suggested, to be sure, that the forfeiture, as it is called, was
dependent upon notice's being given as agreed in article 7, and
that there is some evidence that notice was not given. The
Page 220 U. S. 488
condition, however, was an absolute condition precedent to the
acquisition, by persons not parties to the treaty, of any rights,
if rights they can be called, notice or no notice, and furthermore,
if the question were open, we should not be prepared to find that
there was a failure in that respect.
See
United States v.
Crusell, 14 Wall. 1;
United States v.
Pugh, 99 U. S. 265.
New York Indians v. United States, 170 U. S.
1, has no bearing. There, the question was whether
grantees in fee simple by treaty had forfeited their rights.
The plaintiffs contend that, as the act authorizing the suit
gave the Court of Claims full legal and equitable jurisdiction, the
appeal opens the findings of fact for reconsideration, as was held
in
United States v. Old Settlers, 148 U.
S. 427,
148 U. S.
464-465. That, however, was a suit in equity, whereas
the present case is more analogous to an action at law, to recover
a fund from parties to whom it was paid under mistake of law or
fact, or from the original contractor by whom the payment was made.
We should hesitate to depart from the ordinary rule that we do not
go behind the findings of the Court of Claims,
The Sisseton
& Wahpeton Indians, 208 U. S. 561,
208 U. S. 566,
if, in our view, the question needed to be decided. It is true that
the court below stated a principle of evidence that, if it is to be
taken literally, cannot be sustained. It said that counsel could
not bind the court to admit evidence not admissible by law, and
partly on that ground seems to have declined to consider
ex
parte affidavits which the counsel for the Iowa and Oklahoma
Indians agreed might be given the effect of depositions. The
counsel for the United States refused to agree, and this was a
further, and possibly adequate, ground for the exclusion, as the
agreement may have been understood to be conditional upon all
parties joining. But, of course, evidence, hearsay or
ex
parte, for instance, may be admitted by consent, unless,
perhaps, as against the United States, and then should be given
Page 220 U. S. 489
whatever weight it would have but for technical rules. Apart
from agreement, the depositions were not made evidence by the
statute of 1907, as that only dealt with reports of departments,
not with every exhibit that such reports might contain.
The question remains whether the error, if error there was, did
the plaintiffs any harm. The counsel for the plaintiffs treats the
statute giving jurisdiction as intended to open the case from the
beginning, without regard to inconsistent statutes, and to provide
for an arbitration on the footing of what may seem fair.
See
United States v. Old Settlers, 148 U.S.
148 U. S. 427-429,
149 U. S. 473;
Pam-To-Pee v. United States, 148 U.
S. 691,
148 U. S. 699.
In view of the subject matter, an uneasy doubt is natural whether
Congress did not mean rather more than it plainly said. But the
jurisdiction given is "legal and equitable," and the authority is
to "adjudicate as justice and equity shall require" claims for
money alleged "to be due to them as their proportionate shares" of
appropriations to fulfill treaty obligations, etc. The statute
creates no new right beyond excluding the effect of the lapse of
time, and, perhaps, the defense of
res judicata and
satisfaction under the Acts of 1895 and 1869; it makes no
admission, but simply provides for a trial on the merits.
See
Stewart v. United States, 206 U. S. 185,
206 U. S. 194. A
merely moral claim is not made the foundation of a possible
recovery. Something must be shown that amounts to a right.
It is apparent from what we have said that no finding as to the
number of Indians in Iowa in particular years, without more, could
change the result to which the Court of Claims and this Court have
come. The treaty contracts on which the plaintiffs' claims are
founded gave rights only to the tribe, not to the members. It was
an accepted and reasonable rule, especially in the days when Indian
wars still were possible and troublesome, that payments to the
tribe should be made only at their reservation and
Page 220 U. S. 490
to persons present there. The Acts of 1852 and 1867 did not
shift the treaty rights from the tribe to the members, create new
rights, or enlarge old ones. The payments up to 1884 had the
sanction of statute. The Act of 1884 no more created individual
rights than did the Act of 1852 and 1867. It confined its benefits
to "original Sacs and Foxes now in Iowa," and made the Secretary of
the Interior the judge. There is no evidence to show that he was
wrong as to the number of original Sacs and Foxes who had been in
Iowa on July 4, 1884. Whether the plaintiffs might get an award in
a free arbitration, irrespective of treaty and statute, we cannot
say, but in our opinion they have failed to establish such rights
as can be recognized by this Court. The decision below was
according to the long established construction and practice of the
Department -- a fact entitled to much weight in a case like
this.
Judgment affirmed.
MR. JUSTICE McKENNA, dissenting:
1. On the supposition that the findings of the Court of Claims
are binding on this Court, the case should be remanded to that
court for further consideration because of its error in refusing to
consider evidence made competent by the jurisdictional act and by
the stipulation between the contending Indians.
2. If this Court may go behind the findings, as I think it may,
on the authority of
United States v. Old Settlers,
148 U. S. 464,
and as it is conceded by the contending Indians that it may, in my
opinion the Secretary of the Interior, in apportioning the
annuities from 1885 to date, committed error in taking the fixed,
unvarying sum of 317 for the Sacs and Foxes in Iowa, and 505 for
those in Oklahoma, disregarding any increase or decrease of the
respective divisions of the tribe. The tribal rights of the
claimant Indians had been recognized, and the jurisdictional
Page 220 U. S. 491
act required that they should be given
"their proportionate shares according to their numbers . . . of
the appropriations made by Congress for fulfilling treaty
stipulations with the confederated tribes. . . ."
I think, therefore, that fixed, unvarying sum should not have
been selected. Annual tests should have been made and the increase
or decrease of the Indians ascertained by the Secretary of the
Interior.
The Court of Claims found, it is true, that there was no
competent evidence of the increase or decrease of the divisions of
the tribe. But, in so finding, the court disregarded, as I have
already said, evidence which the jurisdictional act and the
stipulations of the contending Indians made competent, and such
evidence, though not strong, established that the claimant Indians
had increased. It is pointed out in the opinion that the Secretary
of the Interior recognized a small increase of the defendant
Indians in 1887.