1. The effect as
res judicata of the judgment of the
Court of Claims, as modified by this Court (
202 U. S. 202 U.S.
101), determining the claims of the Cherokee Nation against the
United States, was waived insofar as concerns interest, by the Act
of March 3, 1919, directing a reexamination of that question and
specially conferring jurisdiction on the Court of Claims, with a
right of appeal to this Court. P.
270 U. S.
486.
2. Congress has power to waive the benefit of
res
judicata by allowing another trial of a claim against the
United States.
Id.
3. Interest cannot be recovered from the United States in a suit
on contract referred by special Act to tho Court of Claims unless
the contract or the special Act expressly authorized interest. P.
270 U. S.
487.
4. On the amounts of principal owing them by the United States,
as determined in the case reported in
202 U. S. 202 U.S.
101, the Cherokees were entitled, as by stipulation, to simple
interest only at five percent to date of payment. P.
270 U. S.
487.
5. The fact that Congress failed to appropriate money, in
accordance with its agreement, to pay principal amounts and accrued
simple interest due to the Cherokees on an account stated and
agreed to between them and the United States is not a good reason
for allowing interest on the interest from the time when the
payments should have been made. P.
270 U. S.
488.
6. The provision in the sixth article of the agreement with the
Cherokees, of December 19, 1891, ratified by Act of March 3, 1893,
providing for interest at five percent on money to be paid them "so
long as the money . . . shall remain in the Treasury" refers to
money payable for the land ceded by the Indians under
Page 270 U. S. 477
the agreement, and not to the principal sums and interest to be
accounted as due under past treaties and law. P.
270 U. S.
491.
7. The provisions in the Treaty of June 19, 1866, and R.S. § 359
for investing Cherokee funds in United States stocks and paying
interest are not a basis for compounding interest on the amount
expended from such funds for removal of Eastern Cherokees to Indian
Territory, since, by agreement of the Cherokees and the United
States under a Senate Resolution of 1850 and through ratification
of the account stated under the agreement of December 19, 1891, the
interest was to be at five percent until the debt was paid. P.
270 U. S.
491.
8. Under the judgment rendered by this Court in 1906,
202 U. S. 202 U.S.
101, interest thereafter should not have been calculated on the
interest included in the judgment, but only on the principal amount
until paid. Pp.
270 U. S. 492,
270 U. S.
495.
9. The provision of the Act of September 30, 1890, for paying
interest at four percent on judgments appealed to this Court by the
United States from the Court of Claim, from the date of filing the
transcript of judgment in the Treasury Department to the date of
the mandate of affirmance, does not apply to a judgment which
itself provides for a certain rate of interest after its entry. P.
270 U. S.
493.
59 Ct.Cls. 862 affirmed.
Appeal from a judgment of the Court of Claims dismissing the
petition in a suit by the Cherokee Nation.
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
In 1905, this Court affirmed a judgment of the Court of Claims
for the principal of and the interest on four amounts due from the
United States to the Cherokee
Page 270 U. S. 478
Nation.
United States v. Cherokee Nation, 202 U.
S. 101, s.c. 40 Ct.Cls. 252. The interest allowed in the
judgment was five percent on the four claims from the accruing of
liability to their payment. Since that judgment and its payment in
full, the Cherokee Nation has presented to Congress the claim that
more than simple interest was due, that the principal and interest
due in 1895 should have been regarded as a lump sum, and that
thereafter interest on the total at five percent to the time of
payment should have been allowed. This, if granted, would be an
additional sum of $2,216,091.76, with five percent interest from
the dates of previous credits till paid. A special Act of Congress
of March 3, 1919, 40 Stat. 1316, c. 103, provides in part as
follows:
"That jurisdiction is hereby conferred upon the Court of Claims
to hear, consider, and determine the claim of the Cherokee Nation
against the United States for interest, in addition to all other
interest heretofore allowed and paid, alleged to be owing from the
United States to the Cherokee Nation on the funds arising from the
judgment of the Court of Claims of May eighteenth, nineteen hundred
and five (Fortieth Court of Claims Reports, page two hundred and
fifty-two), in favor of the Cherokee Nation. The said court is
authorized, empowered, and directed to carefully examine all laws,
treaties, or agreements, and especially the agreement between the
United States and the Cherokee Nation of December nineteenth,
eighteen hundred and ninety-one, ratified by the United States
March third, eighteen hundred and ninety-three (Twenty-seventh
Statutes at Large, page six hundred and forty, section ten), in any
manner affecting or relating to the question of interest on said
funds, as the same shall be brought to the attention of the court
by the Cherokee Nation under this act. And if it shall be found
that, under any of the said treaties, laws, or agreements, interest
on one or more of the said funds, either in whole or in part,
Page 270 U. S. 479
has not been paid and is rightfully owing from the United States
to the Cherokee Nation, the court shall render final judgment
therefor against the United States and in favor of the Cherokee
Nation, either party to have the right to appeal to the Supreme
Court of the United States as in other cases."
It is not necessary to recount the long and intricate history of
the relations between the United States and the Cherokee Nation. It
is complicated by the division between Cherokees into the Eastern
Cherokees, who wished to become civilized and remain in the states
east of the Mississippi, and those who preferred nomadic and
hunting life in the West, and who first went to the Indian
Territory and were called the Old Settlers. Ultimately the Eastern
Cherokees were removed to the same place, and they and the Old
Settlers were united in a common government again by the Treaty of
1846, 9 Stat. 871. The sale and purchase and transfer of lands east
and west of the Mississippi, the distribution of these, the cost of
removal of the various bands of the Nation to Indian Territory, and
other transactions involving expense were the subject of discussion
and dispute between the government and the Nation and its different
bands. In avowed conformity with the Treaty of 1846, Congress
appropriated, in 1852, the sum of $724,603 "in full satisfaction
and a final settlement of all claims and demands whatsoever of the
Cherokee Nation against the United States." 9 Stat. 573, c. 12. A
full and final discharge was accordingly signed by the
representatives of the Cherokee Nation, but under protest. Other
claims, however, were thereafter made and paid, one of nearly
$190,000 to the Old Settlers. Then, in a case of
The Old
Settlers v. United States, 27 Ct.Cls. 1, affirmed by this
Court in
148 U. S. 148 U.S.
427, a judgment for $212,376.94 with interest from 1838 and an
additional $4,100 was given them.
Page 270 U. S. 480
In 1889, the United States desired to buy from the Cherokees
what was known as the Cherokee Outlet in Oklahoma, embracing
8,000,000 acres for settlement as public land. Under the authority
of § 14 of the Act of March 2, 1889, 25 Stat. 1005, an agreement
was made December 19, 1891, by the United States with the Cherokee
Nation, by the first article of which the Cherokee Nation agreed to
convey to the United States, 8,144,682.91 acres between the 96th
and 100th degree of west longitude, south of the Kansas line, and
commonly known as the "Cherokee Outlet."
The Fourth Article of the agreement was as follows:
"Fourth. 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, 1833, 1835, 1836, 1846, 1866, and 1868, and any laws
passed by 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 (12)
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 in her
Page 270 U. S. 481
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."
The Sixth Article was in part as follows:
"Sixth. That, in addition to the foregoing enumerated
considerations for the cession and relinquishment of title to the
lands hereinbefore provided, the United States shall pay to the
Cherokee Nation at such time and in such manner as the Cherokee
National Council shall determine, the sum of eight million five
hundred and ninety-five thousand seven hundred and thirty-six and
twelve one-hundredths ($8,595,736.12) dollars in excess of the sum
of seven hundred and twenty-eight thousand three hundred and
eighty-nine and forty-six one-hundredths ($728,389.46) dollars, the
aggregate of amounts heretofore appropriated by Congress and
charged against the lands of the Cherokees west of the Arkansas
river, and also in excess of the amount heretofore paid by the
Osage Indians for their reservation. So long as the money or any
part of it shall remain in the Treasury of the United States after
this agreement shall have become effective, such sum so left in the
Treasury of the United States shall bear interest at the rate of
five percentum per annum, payable semiannually: Provided, that the
United States may at any time pay to said Cherokee Nation the whole
or any part of said sum and thereupon terminate the obligation of
the United States in respect to so much thereof as shall be so paid
and in respect to any further interest upon the same."
On January 4, 1892, the agreement of 1891 was approved by the
Cherokee National Council. The agreement was ratified by Congress
by § 10 of the Act of March
Page 270 U. S. 482
3, 1893, 27 Stat. 612, 640, which appropriated $295,736, to be
immediately available, and the remaining sum of $8,300,000, it was
provided, should 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."
The Act further provided that the acceptance by the Cherokee
Nation of Indians of any of the money appropriated as therein set
forth should be considered and taken, and should operate, as a full
and complete relinquishment and extinguishment of all the title,
claim, and interest in and to said lands of the Cherokee
Nation.
The sum of $5,000 was appropriated by the Act 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 II of said
agreement."
On May 17, 1893, a deed of cession was executed and delivered by
the proper authorities of the Cherokee Nation to the United States,
and the first installment of the purchase money was paid to and
accepted by the Cherokee Nation, and the United States thereupon
took possession of said lands, and thereafter disposed of the same.
The other installments were duly and seasonably paid.
In pursuance of the Act of March 3, 1893,
supra, the
Secretary of the Interior promptly employed two expert accountants,
Messrs. James A. Slade and Joseph T. Bender, to prepare an account
between the United States and the Cherokee Nation, and on April 28,
1894, they filed it with the Secretary. The amounts due the
Cherokee Nation were summed up as follows:
Page 270 U. S. 483
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.)
Under Treaty of 1835:
Amount paid for removal of Eastern
Cherokees to the Indian Territory,
improperly charged to treaty fund . . . . . . . . .
$1,111,284.70
(With interest from June 12, 1838,
to date of payment.)
Under Treaty of 1866:
Amount received by receiver of public
moneys at Independence, Kan. 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
(With interest from July 1, 1893, to
date of restoration of the principal
of the Cherokee funds, held in trust
in lieu of investments.)
This was transmitted by the Secretary of the Interior to the
proper authorities of the Cherokee Nation, and it was accepted by
Act of the National Council approved December 1, 1894. It was then
transmitted by the Secretary to Congress on January 7, 1895. The
principal due on said account on March 4, 1895, was $1,134,248.23,
and the interest was $3,162,279.34.
Instead of making an appropriation for this amount, Congress on
March 2, 1895, referred the report of the Secretary of the Interior
to the Attorney General and authorized and directed him to review
the conclusions of law reached by the Department of the Interior in
the account and report his conclusions at the next regular
Page 270 U. S. 484
session. 28 Stat. 795, c. 177. The Attorney General made his
report December 2, 1895, which differed with the report of the
Secretary of the Interior and the Slade and Bender report, holding
that, under the Treaty of 1846 and the settlement of 1852 by
appropriation of Congress, the Cherokees were properly charged with
the expense of removal, and that the item 2 of $1,111,284.70 in the
report was improperly charged to the United States. No action was
taken in settlement of the matter by Congress until July 1, 1902,
when, by § 68 of the Act of July 1, 1902, 32 Stat. 726, it referred
the claims to the Court of Claims, 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.
. . ."
Under this Act, the Cherokee Nation brought suit against the
United States, claiming the whole amount with interest found due by
the Slade and Bender account. Thereafter, the Eastern Cherokees and
the Eastern and Emigrant Cherokees each brought suit under the Act
of July 1, 1902, as amended by the Act of March 3, 1903, 32 Stat.
996, against the United States, each claiming the removal fund of
$1,111,284.70. The three suits were consolidated by order of the
court, and were heard, considered, and decided together. The decree
of the Court of Claims, in conformity with its opinion and
conclusion of law entered March 20, 1905, was in part as
follows:
Page 270 U. S. 485
"It is, this 18th day of May, A.D. 1905, adjudged, ordered, and
decreed 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 therefrom 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 5
percent from June 12, 1838, to date
of payment.
Item 3: The sum of . . . . . . . . . . . . $ 432.28
With interest thereon at the rate of 5
percent from January 1, 1874, to
date of payment.
Item 4: The sum of . . . . . . . . . . . . $ 20,406.28
With interest thereon from July 1, 1893,
to date of payment.
Then followed directions as to the payment and distribution of
the different items of the judgment. 40 Ct.Cls. 252, 363, 364.
The case having come to this Court on appeal, the judgment was
affirmed on April 30, 1906, with a modification consisting of a
direction that item 2, $1,111,284.70, with interest at five percent
from June 12, 1838, to date of payment, should be distributed among
"the Eastern Cherokees as individuals, whether east or west of the
Mississippi, parties to the treaties of 1835-36 and 1846, and
exclusive of Old Settlers."
United States v. Cherokee
Nation, 202 U. S. 101,
202 U. S.
130-131. On May 28, 1906, the Court of Claims entered a
decree modifying its original decree to conform to the mandate of
the Supreme Court. In attempted satisfaction of the judgment of the
Court of Claims, as modified by the Supreme Court and as directed
by subsequent appropriation acts, there has been paid to the
Cherokee Nation the sum of $5,158,005.54.
The Court of Claims held in the case before us that the
plaintiff was not entitled to recover any more interest, and its
petition was dismissed; hence this appeal.
The first question for our consideration is the effect of the
Act of 1919 in referring the issue in this case to the
Page 270 U. S. 486
Court of Claims. The judgment of this Court in the suit by the
Cherokee Nation against the United States in March, 1906 (
202 U. S. 202 U.S.
101), already referred to, awarded a large amount of interest. The
question of interest was considered and decided, and it is quite
clear that, but for the special Act of 1919, above quoted, the
question here mooted would have been foreclosed as
res
judicata. In passing the Act, Congress must have been well
advised of this, and the only possible construction therefore to be
put upon it is that Congress has therein expressed its desire, so
far as the question of interest is concerned, to waive the effect
of the judgment as
res judicata, and to direct the Court
of Claims to reexamine it and determine whether the interest
therein allowed was all that should have been allowed, or whether
it should be found to be as now claimed by the Cherokee Nation. The
Solicitor General, representing the government, properly concedes
this to the correct view. The power of Congress to waive such an
adjudication, of course, is clear.
See Nock v. United
States, 2 Ct.Cls. 451,
Braden v. United States, 16
Ct.Cls. 389, and
United States v. Grant, 110 U.
S. 225.
Compare United States v. Realty Co.,
163 U. S. 427;
Allen v. Smith, 173 U. S. 389,
173 U. S. 393,
173 U. S. 402;
United States v. Cook, 257 U. S. 523,
257 U. S. 527;
Work v. United States ex rel. Rives, 267 U.
S. 175,
267 U. S. 181;
Mitchell v. United States, 267 U.
S. 341,
267 U. S. 346.
There is nothing before us which indicates that the present
claim for a rest in the matter of interest in 1895 was presented
either to the Court of Claims or to this Court. It is a new
argument not before considered. The argument is that the
consideration for the land to be conveyed under the agreement of
1891 was not only the $8,500,000 to be paid, but also the
appropriation by Congress of money to pay the old accounts long
due, and that the failure of Congress to make the appropriation at
the time agreed required that interest
Page 270 U. S. 487
thereafter should be awarded upon the lump sum of principal and
interest as of that date, in full payment of the purchase money for
the land. The claim is that the failure of Congress to make the
appropriation as stipulated in the contract became a new
terminus a quo from which the calculation of interest on
everything then due and owing must be calculated.
In taking up this argument, we should begin with the premise,
well established by the authorities, that a recovery of interest
against the United States is not authorized under a special Act
referring to the Court of Claims a suit founded upon a contract
with the United States unless the contract or the act expressly
authorizes such interest. This is in accord with the general
congressional policy as shown in § 177 of the Judicial Code,
providing that no interest shall be allowed on any claim up to the
time of the rendition thereon by the Court of Claims, unless upon a
contract expressly stipulating for the payment of interest.
Tillson v. United States, 100 U. S.
43,
100 U. S. 46;
Harvey v. United States, 113 U. S. 243,
113 U. S. 249.
We have already held, in
The Old Settlers case, supra,
and in
United States v. Cherokee Nation, supra, that, in
the past financial dealings between the United States and the
Cherokee on debts due from the former to the latter, interest at
five percent until payment was to be allowed as if stipulated. This
result followed from a decision by the Senate of the United States
acting as umpire between the two parties in 1850. In that capacity.
it adopted the following resolution:
"Resolved, that it is the sense of the Senate that interest at
the rate of five percent per annum should be allowed upon the sums
found to be due to the Eastern and Western Cherokees respectively,
from the 12th day of June, 1838, until paid."
Thus, it was that the accountants Slade and Bender reported that
interest at five percent until paid should
Page 270 U. S. 488
be allowed the Cherokees not only on the items which were due in
1850, but also on those which had accrued since, and, by the
ratification of their report by both parties, interest thus
calculated becomes a stipulated term in respect of the issue before
us.
It is contended, however, by counsel for the Cherokee Nation,
that the decision of this Court in 1906 so treats the breach of the
contract by the government in failing to make the appropriation in
1895 as to justify the claim that it was more than a mere
continuance of the failure to pay; that it was a new breach of a
new contract, requiring interest as upon a new default in a new
debt of the sum total of the original claim, with interest added
down to 1895.
We cannot ascribe such an effect of the decision referred to.
The chief controversy in that case was as to the liability of the
government at all for the removal expenses of the Eastern
Cherokees. It was argued on its behalf, as the report of the case
in the Court of Claims shows (40 Ct.Cls. 252, 307), that Slade and
Bender were merely accountants employed by the government to state
the account, and not to pass on the legal validity and effect of
the Treaty of 1846 and the scope of the settlement evidenced by the
appropriation and the signed releases of 1852; that the Cherokees
were not bound by the report as an account stated or settled, but
were given full right by the agreement of 1891 to contest its
correctness and to resort to court in respect to it, and that the
government could not be bound by such a report, in which the
accountants exceeded their authority as mere accountants, and
exercised their functions as if authorized to act as arbitrators or
umpires. This Court stated its adverse conclusion on this point by
quoting and approving the language of Chief Justice Nott in the
Court of Claims (
202 U. S. 202 U.S.
101 at
202 U. S.
122-123), as follows:
"The court does not intend to imply that, when the account of
Slade and Bender came into the hands of the
Page 270 U. S. 489
Secretary of the Interior, he was bound to transmit it to the
Cherokee Nation. On the contrary, the Cherokee Nation had not
agreed to be bound by the report of the accountants, and could not
claim that the United States should be. The accountants were but
the instrumentality of the United States in making out an account.
When it was placed in the Interior Department, it was as much
within the discretion of the Secretary to accept and adopt it or to
remand it for alterations and corrections as a thing could be. He
was the representative of the United States under whom the
agreement had been made, and he was the authority under which the
account had been made out, and, when he transmitted it to the
Cherokee Nation, his transmission was the transmission of the
United States. When the account was thus received by the Cherokee
Nation (May 21, 1894), the 'twelve months' of the agreement within
which the Nation must consider it and enter suit against the other
party in the Court of Claims began to run, and, with the Nation's
acceptance of the account (December 1, 1894), the session of
Congress at which an appropriation should be made became fixed and
certain. The Secretary did not recall the account; the United
States never rendered another, and the utmost authority which
Congress could have exercised, if any, was at the same session, or
certainly within the prescribed 'twelve months,' to have directed
the Secretary to withdraw the account and notify the Cherokee
Nation that another would be rendered. The action of the Secretary
of the Interior, combined with the inaction of Congress to direct
anything to the contrary, makes this provision of the agreement
final and conclusive. The Cherokee Nation has parted with the land,
has lost the time within which it might have appealed to the
courts, and has lost the right to bring the items which it regards
as incorrectly or unjustly disallowed to judicial arbitrament, and
the United States are placed in the position of having broken and
evaded the letter and spirit of their agreement. "
Page 270 U. S. 490
All this, however, was directed to the question of the liability
of the United States to pay the principal debt. The court then
proceeded to find the interest due as directed in the Slade and
Bender account without any suggestion of a rest for interest in
1905, or anything other than simple interest at five percent until
paid.
When we consider the rule requiring an express provision of
contract or statute to justify the imposition of interest in
adjudicating any claim against the United States, we can find
nothing in the circumstances of this case to increase the interest
as adjudged. The additional interest now claimed is sought really
as damages for the delay of Congress in appropriating the sum due
in 1895 as the United States promised in the 1891 agreement. But
the rule as to interest against the United States does not allow us
to adjudge interest as damages at all. Congress must expressly
provide for it, or the contract must so provide. The only
contractual obligation here is for simple five percent interest
until payment.
What the appellant here seeks is compound interest -- that is,
interest on interest from 1895 until now. The general rule, even as
between private persons, is that, in the absence of a contract
therefor or some statute, compound interest is not allowed to be
computed upon a debt.
Whitcomb v. Harris, 90 Me. 206;
Bradley v. Merrill, 91 Me. 340;
Ellis v.
Sullivan, 241 Mass. 60, 64;
Tisbury v. Vineyard Haven
Water Co., 193 Mass.196;
Lewin v. Folsom, 171 Mass.
188, 192;
Wallace v. Glaser, 82 Mich.190;
Blanchard v.
Dominion National Bank, 108 S.E. 649;
Finger v.
McCaughey, 114 Cal. 64, 66;
Cullen v. Whitham, 33
Wash. 366, 368. In view of the care with which Congress and this
Court, in interpretation of the legislative will, have limited the
collection of simple interest against the government,
a
fortiori must compound interest be denied to appellant unless
provision therefor is made in the contract of 1891, or in the
statute
Page 270 U. S. 491
of 1919 authorizing this suit, and it is to be found in
neither.
Further support for the claim of the appellant is said to be
found in the sixth article of the agreement, quoted above, in the
language,
"so long as the money or any part of it shall remain in the
Treasury of the United States after this agreement shall have
become effective, such sums so left in the Treasury of the United
States shall bear interest at rate of five percent per annum,
payable semiannually."
It is said that this should be construed to refer not only to
the balance unpaid of the $8,595,736.12, but also to the money on
the old claims found to be due under the agreement because payment
of the latter was part of the consideration for the land. A careful
examination of the sixth article shows that this clause referred
only to the new money consideration to be paid, and really only to
the part of that which, after it fell due and was ready for
payment, should be voluntarily left in the Treasury by the Cherokee
Nation. It did not even refer to the originally deferred payments,
because those payments were to bear only four percent interest. In
any view, it did not and could not refer to amounts due on past
account, because, at the time the agreement of 1891 was made they
were not fixed in amount, and awaited a possible adjudication to
determine them, and full treatment of them was given in article 4
of the agreement. The sixth article did not apply to them at
all.
It is further argued that the payment of compound interest is to
be supported here under the provisions of the Treaty of July 19,
1866, 14 Stat. 799, 805, art. 23, which reads as follows:
"All funds now due the Nation, or that may hereafter accrue from
the sale of their lands by the United States as hereinbefore
provided for, shall be invested in United States registered stocks
at their current value, and the interest on all said funds shall be
paid semiannually on the order of the Cherokee Nation. "
Page 270 U. S. 492
And, by § 3659 of the Revised Statutes, reenacting § 2 of the
Act of Congress of September 11, 1841, 5 Stat. 465, which
provides:
"All funds held in trust by the United States, and the annual
interest accruing thereon, when not otherwise required by treaty,
shall be invested in stocks of the United States, bearing a rate of
interest not less than five percentum per annum."
It is urged that the largest item of $1,114,000 was taken out of
a $5,000,000 trust fund held by the United States for the benefit
of the Cherokees, and therefore that it should be treated as if it
were always in the Treasury of the United States, held in trust for
the Indians, and as if the United States had collected the interest
thereon out of the invested stocks, and had refused to pay it over
as annuities to the Indians. This claim proves too much. It would
require compound interest brought about by annual or semiannual
rests for near a century on amount that the Solicitor General
suggests would be equal to the national debt. The argument is shown
to be wholly without support in the circumstance that the Cherokees
and the United States, by the resolution of the Senate in 1850,
agreed upon the interest for such debts as that of five percent
until paid. Moreover, the ratification by the Cherokees of the
Slade and Bender report foreclosed any such claim.
After the judgment was rendered in 1906 by this Court affirming
that of the Court of Claims, the Treasury had some difficulty in
deciding how the interest was to be calculated on the amounts
declared in the judgment. We have no doubt that the judgment should
have been paid in accordance with its exact terms -- namely, with
simple interest down to the time of actual payment -- and that the
intervention of the judgment of 1906 made no difference in the
calculation of the interest. This is the necessary effect of the
judgment.
Page 270 U. S. 493
The Treasury was troubled by the provision of Act Sept. 30,
1890, 26 Stat. 504, 537, § 1, which provides as follows:
"That, hereafter, it shall be the duty of the Secretary of the
Treasury to certify to Congress for appropriation only such
judgments of the Court of Claims as are not to be appealed, or such
appealed cases as shall have been decided by the Supreme Court to
be due and payable. And on judgments in favor of claimants which
have been appealed by the United States and affirmed by the Supreme
Court, interest at the rate of four percentum per annum shall be
allowed and paid from the date of filing the transcript of judgment
in the Treasury Department up to and including the date of the
mandate of affirmance by the Supreme Court: Provided, that in no
case shall interest be allowed after the term of the Supreme Court
at which said judgment was affirmed."
It is quite clear that the statute applies where judgment
against the United States bear no interest, and certainly not to
one in which the judgment itself provides for a certain rate of
interest after its entry. The above statute was framed in order to
impose a penalty on the United States for its unsuccessful effort
by appeal to defeat the judgment against it. It only allows
interest pending the appeal from the date of filing the transcript
in the Treasury Department to the date of the mandate of
affirmance. The Treasury Department seems to have applied this
statute with respect to all the four items of the judgment of
1906.
By the Act of June 30, 1906, 34 Stat. 634, 664, Congress made
appropriation for the payment of the judgment of the Court of
Claims, principal and interest, as follows:
"To pay the judgment rendered by the Court of Claims on May
eighteenth, nineteen hundred and five, in consolidated causes
numbered twenty-three thousand one hundred and ninety-nine, The
Cherokee Nation versus
Page 270 U. S. 494
the United States; numbered twenty-three thousand two hundred
and fourteen, The Eastern Cherokees versus The United States, and
numbered twenty-three thousand two hundred and twelve, The Eastern
and Emigrant Cherokees versus The United States, aggregating a
principal sum of one million one hundred and thirty-four thousand
two hundred and forty-eight dollars and twenty-three cents, as
therein set forth, with interest upon the several items of judgment
at five percentum, one million one hundred and thirty-four thousand
two hundred and forty-eight dollars and twenty-three cents,
together with such additional sum as may be necessary to pay
interest, as authorized by law."
This Act was further amended by the Act of March 4, 1909, 35
Stat. 907, 938, 939, as follows:
"That the general deficiency appropriation act of June
thirtieth, nineteen hundred and six, so far as the same provides
for the payment of item two of the judgment of the Court of Claims
of May eighteenth, nineteen hundred and five, in favor of the
Eastern Cherokees, shall be so construed as to carry interest on
said item two up to such time as the roll of the individual
beneficiaries entitled to share in said judgment shall be finally
approved by the Court of Claims, and for the payment of said
interest a sufficient sum is hereby appropriated."
Then. by § 18 of the Act of June 30, 1919, 41 Stat. 3, 21,
Congress provided for the payment of certain interest on items 1
and 4 of the judgment. The provision in this section as to item 1
seems to have been largely an overpayment. That as to item 4 seems
also to have involved a considerable overpayment, though it also
included 10 years' interest due on the principal under the judgment
which by the government's error was not embraced in the payment
under the Act of 1906.
The sum of all payment actually made under the judgment of 1905
was as follows:
Page 270 U. S. 495
On July 2, 1906, to the Secretary of the
Interior on account of said item 1. . . . . . . . . $
11,520.46
On the same date on account of item 3 . . . . . . . .
1,140.49
On the same date on account of item 4 . . . . . . . .
23,294.93
On July 14, 1906, to the attorneys for the
Eastern Cherokees and the Eastern
Emigrant Cherokees, fees amounting to . . . . . . .
740,555.42
On November 3, 1906, to the attorneys
for the Cherokee Nation on account of
item 2, fees amounting to . . . . . . . . . . . . .
148,245.15
On various dates after July 2, 1906, and
before final distribution of the fund
arising from item 2, to Guion Miller
for fees and expenses the sum of. . . . . . . . . .
103,749.74
On and after March 15, 1910, to Guion
Miller for per capita distribution
among the Cherokees entitled to share
in the fund the sum of. . . . . . . . . . . . . .
4,105,810.77
On or about August 7, 1919, additional
interest on item 4, pursuant to the Act
of June 30, 1919. . . . . . . . . . . . . . . . . .
21,502.86
On or about August 7, 1919, to the
Secretary of the Interior as additional
interest on item 1, pursuant to the said
Act of June 30, 1919. . . . . . . . . . . . . . . . 2,185.72
-------------
Making a total sum, principals and interest of $5,158,005.54
The delay in the payment of the largest items was due to the
desire to comply with the ruling of the Court of Claims, concurred
in by this Court, that the money of the large claim should be
distributed to the individual members of the Eastern Cherokees
according to rolls to be made up of those individuals. 40 Ct.Cls.
332;
202 U. S. 202
U.S. 119,
202 U. S. 130.
This is what led to the amendment of 1909.
It is quite clear that the mistake made by the Treasury, and by
Congress, too, in attempting to carry out the judgment of this
Court was in assuming first that 4 percent should be allowed on the
total of all items and interest between the date of filing the
transcript of the judgment in the Treasury Department and the date
of the mandate of affirmance by the Supreme Court, as already
pointed out. A further mistake was made in calculating interest at
five percent after the date of affirmance by this Court on the
total of the judgment and the interest until final
Page 270 U. S. 496
payment. It should have been confined to interest on the
principal sums. The eighth finding of the Court of Claims shows in
more or less detail how the interest was calculated. The methods
adopted we have already criticized. The Solicitor General in his
brief makes it evident that in the case of no one of the four items
is the amount which has been actually paid less than that which
should have been paid down to the day of payment, in accordance
with the judgment, including the principal and five percent simple
interest to the date of payment. There is no attempt on the part of
the appellant to question the demonstration of this fact. The truth
is that the errors in the calculation increased by a substantial
sum the amounts which under the judgment should have been paid. As
this was more favorable than it should have been to the Cherokees,
they cannot complain. On this appeal, under the Act of 1919 and in
compliance with its requirement, we hold that there is no more
interest due to the Cherokees beyond that which they have already
received. The government is not in a position, in view of the fact
that the errors referred to have been embodied in legislation, and
the overpayments have been made by direction of Congress, to seek
to recover them back. Indeed, it has not attempted to do so.
The judgment of the Court of Claims is
Affirmed.