
    PHINEAS PAM-TO-PEE ET AL v. THE UNITED STATES.
    [No. 21300.
    Decided May 20, 1901.]
    
      On the Proofs.
    
    In a former suit there . .re two adverse "bodies of Indians seeking to recover per capita a treaty fund. The court ascertains the amount of the fund and enters a judgment in the ordinary form of a judgment at law that the Pottawatomie Indians of Michigan recover §104,626. Congress appropriates for the payment of the judgment and by another act authorizes the Secretary of the Interior to detail an inspector “to take a census of the Pottawatomie Indians of Indiana and Michigan who are entitled to” the money appropriated. While the inspector is taking the census the Secretary is notified that there are claimants entitled to participate in the fund who are not being placed on the census roll. The Secretary orders that the names of all Indians appearing on certain rolls in the Indian Office be placed on the census roll. The claimants do nothing more. After the census roll has come in the Secretary adds a few names and waits more than a year, and then pays the fund to the Indians appearing on the corrected roll. The payment by him is without express authority either in the judgment of the court or the acts of Congress. It now appears that many of the present claimants are entitled to participate. The question involved is whether the defendants should be required to pay to that extent a second time.
    I.An officer, executor, or administrator who pays away a fund under the coercion of a decree of a court having jurisdiction can not be made to pay a second time, though the party seeking to recover is rightfully entitled to participate; neither can an innocent stakeholder who, without fault, negligence, or mistake, pays to the injury of a negligent party who failed to present his claim in due time.
    II.Civilized Indian claimants residing in Michigan entitled to participate per capita in a certain fund, of which they had constructive notice, were bound to ascertain whether their names were on the pay roll, if ample time was given to enable them to do so; and where they did nothing, and the Secretary of the Interior paid away the fund to the Indians whose names were on the roll, the defendants should not be required to pay a second time.
    III.The public notices required by courts of equity in cases of multitudinous defendants, requiring them to come in and assert their rights, are for the benefit of persons who have no knowledge of the suit.
    
      IV. An act of Congress authorizing Indians in Michigan to bring suit in this court to recover a treaty fund, the proceedings in the suit in this court and on appeal, an appropriation for the payment of the judgment, an act of Congress authorizing a census to he made of the Indians entitled to he paid, and the taking of the census by an agent of the Interior Department are more than equivalent to the publishing of a notice in the newspapers.
    V. Where this court has exhausted its authority in a former case, in which it might have exercised the discretion of a court of equity and allowed parties to come in and assert their rights after decree, and the present suit is an action at law, the claimants must stand upon their legal rights. The court can not exercise equitable discretion though the claimants are friendless and unlettered Indians entitled to the protection of a court of equity.
    
      The Reporters' statement of the case: •
    The following are the facts of the case as found by the court:
    I. Under the act to ascertain the amount due the Pottawatomie Indians of Michigan and Indiana, approved March 19,1890 (26 Stat. L., 24), two suits were brought in this court, one entitled The Pottawatomie Indians of Michigan and Indiana v. The United States, No. 16743, and the other, Phineas Pam-to-pee a/nd 1,371 other Pottcmatomie Indians of Michigan and Indiana v. The United States, No. 16842.
    II. On the 8th day of January, 1891, the court ordered the two cases to be consolidated, to the end that the adverse claims of the two bodies of claimants might be heard and disposed of by one trial and judgment.
    On the- 27th day of June, 1892, judgment was rendered therein against the United States for $104,626. The claimants in both cases appealed to the Supreme Court. The judgment so appealed from was affirmed and the mandate of the Supreme Court was filed in this court on the 20th da3r of April, 1893.
    The petitions of the respective parties in the two cases above named, the judgment so rendered as above stated, and the mandate of the Supreme Court affirming the same are appended and form part of this finding.
    III. In June, 1895, the Secretary of the Interior ordered arid directed that a census of the Indians be made under the act 2d March, 1895 (28 Stat. L., 894). The census roll was prepared under instructions of the Commissioner of Indian Affairs, dated June 8, 1895 — approved by the Secretary of the Interior June 15, 1895 — by John W. Cadman, and is known as the “Cadman census roll.” While the agent was so engaged in taking the census, John B. Shipman, esq., attorney of record in the case of Pam-to-pee v. United States, addressed a communication to the Secretary of the Interior, dated July 27, 1895, representing that such census, by reason of the manner in which it was being taken, would omit many Indians entitled to be paid under the judgment of the court. Before further instructions were given by the Secretary of the Interior the agent, Cadman, in August, 1895, made and returned and filed in the Interior Department the census so made by him.
    After this roll had been prepared many applications for enrollment were received by the Commissioner of Indian Affairs, based upon the statement that while such applicants were not on the roll of 1866 they were on prior rolls from 1843 to 1866, or were the descendants of such persons. The question was then submitted to the Secretary of the Interior for an opinion as to whether the rolls from 1843 to 1866 should be considered in connection with the enrollment of those who were entitled to participate in the distribution of the $104,626 awarded by the Court of Claims.
    On January 10, 1896, the Secretary of the Interior made his final decision in regard to the Indians who should be enrolled and paid under the judgment of this court and the appropriation of Congress. Marcus D. Shelby, a special Indian agent, was designated by the Commissioner of Indian Affairs to examine and report upon the claims of the several parties alleging to be descendants of the Pottawatomie Indians of Indiana and Michigan who were permitted by supplemental clause to the treaty of September 27, 1833, to remain east, and for whom the Court of Claims rendered a decision in their favor of $104,626 June 27,1892. The instructions given to the agent by the Commissioner were dated February 5,1896. The agent so designated proceeded to Michigan and reported the result of his investigation, bearing date of March 14,1896. The report so made was accepted by the Secretary of the Interior as substantially correct, and the amount appropriated by Congress in satisfaction of the judgment of this court (28 Stat. L., 450) as well as other funds appropriated to pay the Indians upon treaties mentioned in the petitions in said suits (the sum paid being 1118,554.52) paid to the persons upon the roll made by Cadman, after adding thereto two names on the recommendation of Shelby in closing his report as persons mentioned on the census roll of 1866. Later one more was added by the Department. The money was paid to the Indians as communal owners. That is to say, it was paid pro rata to every living member of that portion of the tribe entitled to participate in the fund and not per stirpes.
    The instructions of the Commissioner of Indian Affairs to Cadman, June 8,1895; the letter of John B. Shipman, July 27, 1895; the decision of the Secretary of the Interior, January 10, 1896; the instructions given to the agent, Shelby, February 5, 1896; and the report of the agent, March 4,1896, are appended and form a part of this finding.
    Inclosed in the said letter of John B. Shipman was a list containing the names of over one hundred and fifty of the claimants herein, the names of their ancestors and number on the pay roll of 1843 and 1844 being given as stated in the letter.
    IY. None of the Indians, parties in or represented by the present suit, were paid as aforesaid. A large number of them, to wit, 272, whose names are set forth in Schedule A annexed to claimants’ requests for findings were descended from Indians whose names were enrolled on the rolls of Indians in Michigan in the years 1843, 1844, and 1866. A portion of the Indians who remained in Michigan as coming within the exemption of the treaty of September 27, 1833, were represented in both petitions in the cases of the Pottawatomie Indians v. The United States and the Pam-to-pee Indicms v. The United States.
    
    Y. Pursuant to a stipulation of the parties the facts stated in the findings of fact and in the opinion of the court in cases 16743 and 16842, as reported and set forth in 27 Court of Claims Reports, page 403, are found as additional facts in this case.
    CONCLUSION OE LAW.
    Upon the foregoing findings of fact the court decides, as a conclusion of law, that the claimants’ petition should be dismissed.
    
      And. it is further ordered that the claimants’ request for findings of fact be refused as irrelevant and immaterial, except so far as the same are found in the findings of the court and appear upon the records of the former cases, Nos. 16743 and 16842.
    Appendix to Finding II.
    The Pottawatomie Indians oe Michigan and Indiana
    
      v.
    
    The United States.
    No. 16743.
    Petition filed April 14, 1890.
    PETITION.
    
      To the honorable the Chief Justice and judges of the United
    
    
      States Court of Claims:
    
    The Pottawatomie Indians of Michigan and Indiana, by tbe undersigned, their duly appointed agent and attorney, in behalf of all of the Pottawatomie Indians of said States, respectfully represent:
    First. That this petition is filed and the jurisdition of this court is invoked under and by virtue of the provision of the following act of Congress:
    AN ACT to ascertain the amount due the Pottawatomie Indians of Michigan and Indiana.
    * * * * * -*
    Third. In the year 1795, and subsequently, the Government of the United States made treaties with the Ottawa, Chippewas, and Pottawatomie Indians, in which they were formally recognized as distinct nations uniting in the same treaties; but more recently they were known as the United Nation of Pot-tawatomies, and since 1846 as the Pottawatomie Nation. By the provisions of the several treaties the Indians ceded lands to the Government, and the Government paid for the same in other lands, in money, and in goods and pledged annuities— some for a short and some for a long period.
    “On the 26th of September, 1833, a treaty was made by which the nation ceded to the United States about 5,000,000 acres of land lying on the western shore of Lake Michigan, for which the Government gave and pledged a satisfactory consideration.
    “A part of the nation did not at that time agree to the treaty, but the next day, being the 27th of September, 1833, those who had declined, and were known as-the chiefs and headmen of said United Nation of Indians, residing upon their reservations of land lying in the Territory of Michigan, south of Grand River, entered into a treaty supplementary to that which had been executed the previous day, by which they became parties to the main treaty, upon terms specified in the supplementary treaty — one of which permitted them to remove to northern Michigan and declared that in case of removal they should be entitled to share in all annuities payable under former treaties, and that arising from the sale of the reservation on which they then resided.
    “The Commissioner of Indian Affairs, in a letter addressed to the Secretary of the Interior, dated November 15, 1862, said that the main tribe removed to their new homes, west of the Mississippi, and the Catholic portion, your petitioners and their forefathers, to the northern parts of Michigan; which is evidence that they complied with the condition upon which they were to share in the annuities due the nation.
    “This Government has made 24 different payments to your petitioners on account of their annuities since the treaty of September 27, 1833.
    ‘ ‘ The nation was permitted to remain on the lands they ceded to the Government until 1836, and received all their annuities there, of which these petitioners received their portion down to and including the year 1835, prior to which time your petitioners make no claim against the Government.
    “Fourth. Your petitioners were parties to all treaties made by the United States with the Pottawatomie Nation of Indians, and were entitled to share per capita in all annuities secured to said nation by said treaties, and that no doubt should be permitted to cloud the title of your petitioners to share in the annuities secured by these several treaties, the supplementary treaty, dated September 27, 1833, was framed and ratified between the United States and your petitioners, the caption and first and last articles of said treaty being in •the following words:
    * -x- *****
    “Twenty-first. Your petitioners further represent that the following payments have been made them by the United States since the treaty of September 27,1833; total $75,162.50. (See letter of E. B. French, Second Auditor, dated March 27, 1872, and exhibits.)
    “The$1,587.50 was paid to those Pottawatomies residing in Michigan, in conformity to, and as their proportion of, the treaty of'July 29, 1829, and the second article of the supplementary treaty of September 26, 1833, for all the years that the same was paid, excepting for the years 1851 and 1865, in which years the treaty of 1833 is not included.
    
      “The payment of 139,000 in 1866 was made in conformity to the joint resolution of Congress approved July 28,1866. (14 Stat. L., 370.)
    In 1843 Robert Stewart paid 253 Indians...§1,587.50
    In 1844 Robert Stewart paid 269 Indians. 1,587. 50
    In 1845 Wm. A. Richmond paid 217 Indians. 1,587.50
    In 1846 Wm. A. Richmond paid 204 Indians. 1,587. 50
    In 1847 Wm. A. Richmond paid 244 Indians. 1,587.50
    In 1848 Wm. A. Richmond paid 260 Indians. 1,587.50
    In 1849 Chas. P. Babcock paid 260 Indians. 1,587.50
    In 1850 Chas. P. Babcock paid 218 Indians. 1,587.50
    In 1851 William Sprague paid 229 Indians. 1,587. 50
    In 1852 William Sprague paid 214 Indians. 1,587. 50
    In 1853 Henry C. Gilbert paid 219 Indians. 1,587.50
    In 1854 Henry C. Gilbert paid 236 Indians. 1,587. 50
    In 1855 Henry C. Gilbert paid 236 Indians. 1,587.50
    In 1856 Plenry C. Gilbert paid 221 Indians. 1,587.50
    In 1857 A. M. Pilch paid 239 Indians. 1,587. 50
    In 1858 A. M. Filch paid 234 Indians. 1,587. 50 •
    In 1859 A. M. Filch paid 253 Indians. 1,587.50
    In 1860 A. M. Filch paid 236 Indians. 1,587. 50
    In 1861 De Wit C. Leach paid 235 Indians. 1,587. 50
    In 1862 De Wit C. Leach paid 247 Indians. 1,587.50
    In 1863 De Wit C. Leach paid 246 Indians. 1,587. 50
    In 1864 De Wit C. Leach paid 242 Indians. 1,237.50
    In 1865 Richard M. Smith paid 232 Indians: Principal, in currency, §1,587.50; premium, in gold, §692.24. 2,279. 74
    In 1866 Richard M. Smith paid 338 Indians. 39,000.00
    “The above shows the number of Pottawatomie Indians residing in Michigan in the years indicated who received the amount as shown thereon, as the same appears from the receipt
    rolls on hie in the Indian Office.
    * * * * * * *
    “Upon the foregoing statement there appears to be due from the United States to the Pottawatomie Indians of Michigan and Indiana the sum of $223,035.46, and your petitioners demand judgment for said sum.
    “John Oritcher,
    “ Attorney for PlaintiffsP
    
    
      U
    
    Phineas Pam-To-Pee and 1,371 other Pot-' tawatomie Indians of Michigan and Indiana
    
      v.
    
    No. 16842.
    “The United States.
    Filed Nov. 5, 1890. — J. R.
    
      11 To the Court of Claims:
    
    “The petitions of said Indians respectfully shows—
    “That your petitioners number 1,372, and their names and residences are as follows:
    * * * -X- * * *■
    ‘ ‘ That your petitioners are not parties to the suit lately commenced in this court entitled: ‘ The Pottawatomie Indians of Michigan and Indiana v. The United States’ (No. 16743), and they are not represented therein; that the attorney appearing of record in said canse had and has no authority to act for them in the premises; that the agreement referred to in the jurat to the petition in said suit as the source of his authority shows that, August 25, 1887, 61 male and 30 female Indians residing in the counties of Cass, Van Burén, Berrien, and Allegan, Mich., and St. Joseph, Ind., signed a paper naming certain persons to act as a business committee for them in employing said attorney; and on the same day they held a meeting and elected one of their number as principal chief, who was to act with said committee in making the contract. September 29, 1887, this so-called principal chief and the business committee aforesaid, acting together and under the authority so conferred, made the contract with the attorney referred to. It was acknowledged the same day in Van Burén County, Mich., and appears to have been approved in . the Indian office on the same dajq although it was not acknowledged by parties in Washington until October 11,1887. But it conferred upon said attorney no authority to act for any Indians other than the 91 mentioned. None of your petitioners were parties to or represented in any part of the transaction. Your petitioners have applied to the attorney in said cause for permission to take part in the suit and amend the petition therein so as to properly present the claim of all the Indians included in the said act of Congress, but said attorney refuses to accede to such request.
    Your petitioners further state that the Pottawatomie Indians of Michigan and Indiana included in said act of Congress are the descendants and heirs of Pottawatomies once divided into and belonging to seven bands known as the Hurons, Maug-ach-quas, Mick-a-saw-bes, Match-e-be-nash-she-wish, Not-tawasepis, Pokagons, and Prairie-Rondes, the latter being sometimes called Sagamas band, the whole now numbering 1,622 persons, as nearly as can be stated. About the year 1833 the Pottawatomies as a tribe removed west of the Mississippi River, but a number of individual members remained east of Lake Michigan, those remaining east being the Indians designated in the said act of Congress. Those included therein have no tribal organization or chief, and do not exist as a tribal body. They do not live in or hold tribal relations with each other. They are citizens of the United States, scattered over Michigan from the Straits to its southern boundary, and about 12 besides living in Indiana, earning their own living in various kinds of pursuits, severalty, the same as white citizens. Your petitioners embrace all of the Indians mentioned in said act as far as their names could be ascertained, except not exceeding 250 descended almost entirely from the Pokagon band, 91 of whom are those taking part in the contract aforesaid, but they file this petition on behalf of themselves and all the other Indians included in said act who may choose to come in and share in these proceedings, including the 91 aforesaid.
    Your petitioners further state that the treaty stipulations referred to in said act of Congress are those contained in certain treaties made between the United States and said Pottawatomie Indians, August 3,1795; September 30,1809; October 2, 1818; August 29, 1821; October 16, 1826; September 20, 1828; July 29, 1829; October 20, 1832; October 26, 1832; October 27, 1832; September 26, 1833, including the article supplementary thereto of September 27, 1833, and June 17, 1846.
    That the Indians designated in said act of Congress were either ancestrally or directly parties to all of said treaties and entitled to share per capita in the annuities secured to the Pottawatomies thereby, and to severally participate in the benefits arising therefrom to them. In the earlier treaties they are called Pottawatomies, later the United Nation of Pottawatomies, and in the treaty of 1846 it was agreed they should be thereafter known as the Pottawatomie Nation. By these several treaties the United States purchased, and the said Indians ceded, large tracts of land to the Government, amounting in all to about 30,000,000 acres, the bands aforesaid also granting the reservations held by them separately; and in payment the United States, among other things, agreed to paj7 them certain annuities, and also with other lands.
    •x- * * * * * *
    After deducting the payments of 175,162.50 aforesaid, there remains due the claimants in all the matters aforesaid §963,058.50, and §804,383.80 of said amount belongs to your petitioners, and they demand judgment for said sum.
    Jno. B. Shipman, Attorney for Petitioners.
    
    Address: Cold water, Mich.
    District oe Columbia,
    
      Oity of Washington, ss:
    
    Before me, the undersigned, appeared John B. Shipman, attorney for the above petitioners, and made oath that he is the authorized attorney of the Indians named as petitioners in the foregoing petition in the matters above mentioned; that he knows the contents of said petition, and that the matters therein stated are true, so far a's the same are stated on his knowledge, and as to the matters therein stated on the know!edge, information, or belief of the petitioners he believes them to be true.
    Dated, Washington, November o, 1890.
    JOHN RANDOLPH, Assistant Clerh Court of Claims.
    
    
      Judgment of the court.
    
    “The court, on due consideration of the premises, find for the claimants, and do order, adjudge, and decree that the said Pottawatomie Indians do have and recover of and from the United States the sum of one hundred and four thousand six hundred and twenty-six dollars.”
    
      Mandate of the Supreme Court.
    
    “ It is now here ordered and adjudged by this court that the judgment of the said Court of Claims in this case be, and the same is hereby, affirmed.”
    Appendix to Finding III.
    
      Instructions of the Commissioner of India/n Affairs to Cadmian.
    
    That the inspector designated to take the census proceed to Benton Harbor, Mich., and to South Bend, Ind., the places of abode of the Indians referred to, and to take a careful census of the Pottawatomie Indians of Indiana and Michigan. * * * jn taking the census, the inspector should be guided by the roll (herewith inclosed) upon which the payment was based in the pro rata distribution of the $39,000 made in accordance with the joint resolution of Congress approved July 28, 1866 (14 Stat. L., 370).
    He should account for all the Indians (230 in number) whose names appear upon the roll referred to, and then enroll all of those who can furnish positive proof of being legal descendants of the original 230 Indians. No additions are to be made to the original roll other than the descendants of the Indians whose names appear upon the roll above referred to.
    LETTER OE JOHN B. SHIPMAN.
    Cold water, Mich., July $7, 1895.
    
    To Hon. Hoke Smith,
    
      Secretary of the Interior:
    
    In the matter of the Pottawatomie Indians of Michigan and Indiana:
    As directed by the Commissioner of Indian Affairs, I got in communication with Mr. Cadman, who is engaged in taking the census of these Indians with a view of making payments of the money appropriated by Congress for them, and finally met Mm.
    It required but a few minutes’ examination to discover it was impossible for the Department to cary out and comply with the decision and findings of the court allowing the claim upon the line he was pursuing and under the directions he was obeying. He is enumerating and taking a census only of the Indians mentioned and contained in the pay roll of 1866, and the heirs of those deceased. This is certainly and surely wrong; and as this seems a turning point in the matter and the question is a very important one, I must ask that the findings and opinions rendered by the Court of Claims therein be examined with great care. The findings of fact declaring or showing to whom the money belongs are all in the report, as well as the opinion explanatory of the findings. (See 27 C. Cls. it., p. 405.) In affirming the case the Supreme Court (148 U. S. It., 691) did not in any way change the finding and opinion of the court below. To aid in the investigation I state the question, how it arose, and how it was decided.
    September 26, 1833, a treaty was made at Chicago with the United Nation of Chippewa, Ottawa, and Pottawatomie Indians, which made it obligatory upon the Indians who were parties to it to remove west of the Mississippi River .in three years thereafter. The Michigan Indians were all opposed to emigrating west, and refused to join in the treaty which made it obligatory upon them to do so. The Michigan Pottawatomies at that time had three reservations in what was then the Territory of Michigan, one consisting of 49 sections on the St. Joseph River, opposite the town of Niles, occupied by Topene-bees and Pokagonns bands, another being the Nóttawasepis Reservation of 4 miles square, and a third consisting of 99 sections north of it. September 27, 1833, a supplement was added to the treaty made the day previous, in which the Michigan Indians joined and became parties thereto, whereby these three reservations were coded to the Government, the last supplemental article, however, providing that the portion of the tribe residing on the Michigan reservations might remove to the northern part of Michigan, in which case the ‘just proportion ’ of all the annuities payable to them under former treaties and that arising from the sale of those three reservations .should be paid them at L’Arbre Croché (near the Straits of Mackinac). (See the treaty in the U. S. Stat. L., 442-445.)
    After this, most of the Indians left the reservations, going into different parts of Michigan and many of them into the northern portion of it, but a part of the Pokag’on and Notta-wasepi bands remained in southern Michigan. No attention was given the Indians bj' the Government until 1843 (ten years after making the treaty),, when small payments of money commenced to be paid them, which was continued yearly up to and including- 1866; but the payments were made in the southern part of Michigan to those portions of the Pokagon and Nottawasepi bands remaining there, and not at L’Arbre Croché, as agreed in the treaty. These Indians and those going north numbered, all told, 1,100, as found by finding xi of the Court of Claims in the suit mentioned. To show the number of Indians paid, and the fact of their payment from 1843 to 1866, inclusive, a letter of Hon. E. B. French, of May 4, 1871 (then Second Auditor), was used in evidence and is contained in finding vii, but the only payrolls given in evidence were for the years of 1843 and 1844, and these were obtained by me under a call upon the Treasury Department. They are found in the printed evidence of the case at pages 123 to 126 (printed pages), and also in the return made to the court by the Secretary of the Treasury now in the files with the rest of the evidence taken by me in the cause. These two rolls of 1843 and 1844 were the only lists or evidence used in the court showing the names of the Indians who were paid by the Government at any time. No pay rolls or other evidence showing the names of Indians paid after 1844 was in or can be found in the case.
    It will be seen here were two classes of Indians, as stated by the court in finding xi, the one consisting of those to whom the payments in question were made and the other comprising those who went north and elsewhere in the State, and the question presented was, How manjr of them had a right to remain in Michigan and were therefore entitled to receive a “just proportion” of the annuities mentioned? I insisted that as all had equal rights in the reservations ceded, all should share equally in the avails when sold under the terms of the treaty and supplement thereto; but the court decided against me, holding that only those Indians to whom the payments mentioned were made came within the exemption as to removal west, and were therefore the only ones entitled to a “ just proportion” of former annuities, etc. (See finding xi.) Finding xm states these payments were ‘ ‘ made to a part of the Pokagon and a portion of the Nottawasepi bands of the Pottawatomie Indians,” not to Pokagons alone, while finding xiv further defines those entitled to the money and identifies and declares those coming within the supplemental articles as to removal to be “those parts of the Pokagons and Nottawasepi band to whom the payments mentioned in the said letter of Hon. E. B. French were made, as shown in finding vii,” while the pay rolls mentioned in 1843 and 1844 contain the only information the court had as to whom those Indians were. Observe finding xii, also, which decided these Indians “ represented in both petitions.” The opinion rendered in the case also emphasizes this fact.
    It must also be kept in mind that the matter to be arrived at was the Indians who had a right to remain in Michigan and be paid these annuities in 1833, not in 1866, and the court took as the best evidence of that fact the first pay roll made after that .year, viz, in 1843, the officers and agents of the Government having by the act of paying them recognized those Indians as the ones entitled to stay and be paid. To take one made in 1866, thirty-three years after the right under consideration arose, would manifestly work great injustice, for those having a right to stay up to 1843 or 1844 had a right to remain alwaj^s and live where they chose in the State, and before 1866 many of them died, while others had moved north, and their names would not appear on the pajr roll of 1866, or other causes might have operated to prevent their names from being there; but their heirs are entitled to share in the fund just the same, and so should they if living. I am also told there are those on the roll of 1866 who have no business there.
    Besides, the roll of 1843 contains but 207 Pokagons, the rest to make up the 253 upon it are Nottawasepis, and in 1844 the number of the Pokagons is 208; but the total number paid was 269, the balance being Nottawasepsis, as noted on the roll, while the total number through all the years, as averaged by the court and upon which its award was based, was 291. To give the fund now all to the Pokagons, as will be the case if the census is based on the 1866 roll wholly, is to pay them money awarded by the court to the Nottawasepis.
    I do not mean to say under the broad decision of the court ■ that pay rolls subsequent to 1844 can not be considered .or acted on, and if names there appear which are not on the rolls of 1843 and 1844 that such Indians (or, if dead, their heirs) can not share in the fund; but I mean and insist that the census should omit no one on the pay rolls of 1843 and 1844 which were used on the trial in that case, and I respectfully ask that those rolls be sent Mr. Cadman at once and he be directed to include in his census all the Indians, or, if dead, the heirs of all the Indians, whose names appear thereon. In no other way can the decision-of the court rendering .the judgment mentioned or the purpose of Congress in .making the appropriation to pay it be carried out fully.
    To aid the enumerator, I inclose the names of heirs whom I represent (as far as ascertained to date) and whose ancestors are named on the pay rolls, as well as those entitled in their own right, the Nottawasepis and Pokagons being in separate lists, the numbers in the margin corresponding with the numbers in the pay rolls. Where two numbers appear, it indicates where the name appears on both the pay rolls of 1843 and 1844. I might, if desired, get their residence also. I have not examined subsequent pay rolls sufficiently to know whether • or not I represent any upon them which are not on these.
    I hope to be speedily advised of the course determined upon by the Department, so that, if the conclusion is to proceed under the census based upon the roll of 1866,1 may have time to seek a remedy before the fund is paid out.
    Respectfully submitted by
    John B. Shepman.
    DECISION OE SECRETARY OE THE INTERIOR.
    Department of the Interior,
    Washington, January 10, 1896.
    
    COMMISSIONER OE INDIAN AFFAIRS.
    Sir: I have considered jrour communication of 9th instant, acknowledging receipt of Department letter of 4th instant and submitting plan of enrollment of Pottawatomie Indians of Michigan and Indiana entitled to participate in the judgments of the courts in their case.
    I concur in your opinion that only those should be enrolled who make satisfactory proof of their claim and who can show that they were on one of the rolls taken in the years 1843 to 1866, inclusive, or are descended from some one on one of those rolls.
    Very respectfully, . Hoke Smith,
    
      Secretary.
    
    INSTRUCTIONS TO AGENT SHELBY.
    Department oe ti-ie Interior,
    Office of Indian Affairs, Washington, Fi>rua,ry 6, 1896.
    
    Marcus D. Shelby,
    
      Special Indian Agent, Washington, D. G.
    
    Sir: You are hereby directed to proceed to South Bend, Ind.; Chicago, Ill.; and Keeler, Bradley, Harbor Springs, Allegan, and such other points in' the State of Michigan and elsewhere as in your judgment may be necessary, to examine and report upon the claims of the several parties alleging to be descendants of the Pottawatomie Indians of Indiana and Michigan who were permitted, by the supplemental clause to the treaty of September 27, 1833, to remain East, and for whom the Court of Claims, rendered a decision in their favor for $104,626 June 27, 1892.
    Inspector Cadman last June made a census of the Pottawat-omies of Indiana and Michigan and used as a basis for enrollment the last pay roll upon which these Indians were paid in 1866. Since that time many persons have made claims for enrollment, submitting that their parents or ancestors wore upon rolls prior to 1866.
    The honorable Secretary of the Interior decided, January 10, 1896, that only those should bo enrolled who can make satisfactory proof of their claim and who can show that they were upon one of the rolls taken in the years 1813 to 1866 or are descended from some one upon one of those rolls.
    You will therefore require all persons applying to you for consideration of their claims to submit proof, fully substantiated by two or more reputable witnesses, that they are the direct descendants of some person upon some one of the above-mentioned rolls (copies of which are herewith furnished you), and, if possible, to tell what rolls their ancestors were upon.
    If claim is made as a grandchild of some person whoso name was upon one or more of the rolls above referred to, it will be necessary to. show why his own parents were not enrolled, and whether they did not remove West, in compliance with the stipulations of the treaty of September 27,1833, and there receive lands and annuities. Collateral descendants will in no instance be considered.
    No doubt many Indians will present their claims who are the descendants of those Indians who were not included in the supplemental clause of the treaty and would not remove West and have ever since resided east of the Mississippi. This class have no rights in the money awarded, and a reference to the rolls will soon determine their status.
    You will send notices to all points you will visit, to be posted in the post-office, giving timely aclvice of your arrival and the object of jmur visit. You will be furnished with these notices, which you will use when going to points not indicated in the instructions.
    A copy of the Cadman roll is furnished you herewith for your information and guidance. As this office and the Department have decided that all names now on the Cadman roll are entitled to participate in said payment, you will therefore make no additions to or deductions from said roll, as it is only furnished you for reference, as many who are already on said roll will probably apply to you to investigate their cases, and bjr reference to this roll you may save much time and annoyance.
    ' You are not required to make any roll whatever, but will make report in detail, giving' the evidence in each case separately, for the consideration of the office.
    Respectfully,
    D. M. BROWNING,
    
      Commissioner.
    
    
      REPORT OP AGENT SHELBY.
    Chicago, III., March Ilf., 1896.
    
    Hon. COMMISSIONER OF INDIAN ÁFFAIRS,
    Washington, D. G.
    
    Sir: Under instructions from your office dated February 5, A. D. 1896 (A, 40 inclosures), directing me to make an investigation of sundry claimants’ rights to enrollment upon Pottawatomie roll of Indians falling under the supplementary treaty of September 21, A. D. 1833, I have the honor to submit in detail my report upon each claimant submitted.
    In addition to the list of those furnished me by your office, I heard the applications for enrollment of quite a number of other Indians, who, in my judgment, have no standing in this matter, as they could not show that either themselves or their ancestors were enrolled upon any of the rolls from 1843 to 1866. I took no evidence in such cases, but informed the parties that they have no right to enrollment. 1 found it no easy task to show these Indians that the fact of their having Pottawatomie blood did not alone entitle them to the participation in the money soon to be distributed, and that it was awarded by the court to those coming under the supplemental treaty of September 27,1833. They failed to see the justice in one part ■of the Pottawatomie Indians receiving money from the Government to the exclusion of the others. Very nearly all of these Indians have allied themselves- with other- bands and tribes of Indians and participated in annuities and the distribution of lands made said Indians. I found these people very badly scattered, and as they do not frequent post-offices, the notices prepared for me to be posted in the various post-offices, to give them notice of my coming, were of but little value. In nearly every instance, on reaching the vicinity of these Indians, I had to take teams and drive to their homes. I got, however, the newspapers to publish the principal points I would visit.
    The complainants, Thomas L. Sancomb and Mistress Frances Edwards and Mistress Julia Howard, of South Bend, Indiana, could not show that either themselves or their mother, Mistress St. Comb — or Sancomb — were upon any of rolls from 1843 to 1866, but claim they wore enrolled in 1836 with the Pottawatomie Indians and received certain annuities; this, I understand, to bo the last payment made these Indians prior to their removal west of the Mississippi River. Their contention is that their failure to be enrolled upon subsequent rolls was because of the failure of Thomas L. Sancomb and his mother to reach the payment in 1843 before it was completed, and want of information as to subsequent payments, caused by the distance they were removed from the other Indians and a want of intercourse between them. They cite the facts that their mother, Mary St. Comb, as it was then written, is mentioned in Schedule A of the supplemental treaty of September 27, 1833, as receiving certain moneys, and contend this is sufficient proof that they were among those who were embraced in the supplemental treaty and should not be charged with their misfortune in not being enrolled from 1843 to 1866. To admit this to be true would in effect set at naught the acts of the agents in enrolling these people in 1843 to 1866, who.certainly had a better knowledge as to who came under the supplemental treaty than we can possibly have at this late day. To enroll these people would, in justice to the numerous others mentioned in the various schedules of said treaty as having received money, become necessary to reopen the census roll of these Indians and admit to enrollment the scores of the descendants of the others named in the schedule referred to. It would take months of untold labor and necessitate the enrolling officer visiting nearly all, if not every State of the Union, should these people be entitled to enrollment. See Exhibit A for evidence and list of claimants.
    Complainants Charles T. Chanaonia and Mistress Fanny M. Philion, heirs of Charles Chandonia’s claim, is analogous to those of the Sancombs. They state that their father, Charles Chando-nia, is mentioned in Schedule A of supplemental treaty of September 27,1833, which fact establishes the right of his descendants to participate in the fund to be distributed, due the supplemental Indians. And further, that they recognize on the roll of 1843,1844, and 1845, the name of their father, which is spelled “ Way-saw-way-shuck,” and the spelling of the name on the roll of 1834 is erroneous in this, that the syllable “sun” in said name should be “saw.” In examining the rolls I find that there are enrolled on the roll of 1843 the name of W ay-saw-way-shuck, wife, and four children, making six in the family; on the roll of 1844, Way-saw-way-shick, wife and two children, making four in the family; also on that roll is the name of Way-sun-way-shuck, and wife, making two in the famihg on roll of 1845 we find Way-saw-way-shuck, wife, and two children. On the roll of 1846, 1848, and 1849 the name seems to have merged into Way-saw-waw-shut and Way-saw-way-sut, and on each of these rolls is enrolled wife and two children. On rolls of 1847 Way-saw-waw-shut, wife, undone child appears. After 1849 this name seems to have dropped off the roll. The mother of the Chandonias was a white woman, and not entitled to enrollment. This fact, connected with the discrepancy in the name of the spelling of an educated Indian on the various rolls, and the discrepancy of the enrollment of the numbers of his children, together with his desire not to be known as an Indian on account of his political aspirations, convinces me that the Chandonias are mistaken in the Indian name they assumed to bo that of their father’s. See Exhibit B, list of family and evidence.
    Sarah C. Anderson could not show the name of her ancestor on the roll of 1843 to 1866; in fact, could not give her grandmother’s Indian name (from whom she claims her Indian blood). Her grandmother was a negress from Virginia, and came to Indiana in 1839, and what Indian blood she had must necessarily have been from some Southern Indian.
    Mistress S. P. Sikes and Mistress Beulah E. Keith, of Keeler, Mich., sistei’s,.and those thc^represent as their families and their connection. Their mother was a Pottawatomie Indian and educated at Carey Missionary Station in Indiana, and received from the Government, upon graduating, a quarter section of land. She was never enrolled upon any of the rolls of Pottawatomie Indians or received any annuities from the Government. Her husband was a white man, who broke off all intercourse with herself and her Indian relatives.
    Joseph Paul, of Hartford, Mich., is a Miami Indian. Was enrolled on roll of said Indians in June, 1895, which roll was paid off by me the first quarter of 1896. He being in Michigan and not applying for his share on said roll, it was returned to the Treasury.
    Mary Mackey, of Athens, Mich., has no claims to. enrollment, because of the fact that her father, Mo-asa-qua, went west with the Pottawatomie Indians and drew annuities with them, and afterwards returned to Michigan. They have since been enrolled with what is known in Michigan as the Huron Band of Pottawatomie Indians, and participated in all the moneys of said Indians, and received some seven years ago §5350, her share paid said Indians at that time. Her father stated to me that she was not entitled to share with the supplemental Indians.
    Sophia Nah-lu-ga-be, of Bellaire, Mich., nor her father, Negosa, from whom she claims to .have inherited Pottawatomie blood, can be found on the rolls from 1843 to 1866. She has no knowledge of her father having ever participated-in any payment made the Pottawatomie Indians.
    C. J. Allore, of Charlevoix, Mich., nor his mother, Elizabeth Allore, appear upon the rolls from 1843 to 1866; his mother having died in 1841 could not necessarily appear upon said rolls. C. J. Allore looks to be a full-blooded Frenchman, but has heard he has Pottawatomie blood in his veins, and having heard that they were soon to be paid money it reminded him of his Pottawatomie blood, a fact that he had kept quiet from the balance of the community.
    The name of Julia Spaulding, of Kingsley, Mich., nor her mother, Tennas Spidel, or her grandmother, Machewaqua, could be found on tbe rolls from 1843 to 18.66. Siie, too, is entirely ignorant as to any participation on the part of her ancestors in any Pottawatomie payments, but having- Pottawatomie blood thinks she should share in the distribution of the Pottawatomie fund.
    John Pulcipher, of Acme, Mich., who wrote your office on February 1, 1896, stating there were a number of Indians in that community who were entitled to be enrolled on the roll of Pottawatomie Indians, stated that all of the Indians referred to in said letter were Indians who refused to go west with the niain body of the Pottawatomie Indians and who fled to northern Michigan to escape the officers who removed them.
    These Indians being here without permission from the Government and contrary to the stipulations of the treat}1-, I did not feel it my duty to spend any time in interviewing them.
    Mary Hennessy, of.Montague, Mich., states that her grandfather, A-ne-meke-we, was a Pottawatomie Indian, her grandmother an Ottawa Indian; neither her grandfather or her mother, Wa-we-yes, are on the rolls from 1843 to 1866. She knows nothing of her grandmother having participated in any payment made to the Pottawatomie Indians, but that her ancestors, she has been informed, were allied and shared in the annuities of the Ottawa Indians. The husband of Mary Hen-nessey states that George Armstrong, her uncle, paid D. K. Foster $1, with the promise that he would have her enrolled on the roll of the Pottawatomie Indians. This, Foster says, is true, and he received the dollar as an attorney fee for his services.
    Lewis L. Woodville, of Oregon, Ill., and his uncle, Alex. Beaubien, of Chicago, made no claim that they or their ancestors were upon the rolls from 1843 to 1866. Alex. Beaubien stated that neither he or his ancestors had been enrolled since 1836, at which time they were paid with other Pottawatomie Indians; he thinks they were among those included in the supplemental treaty, but knew nothing of subsequent enrollments and payments after 1836.
    The Beaubien family, I understand from them, was given by the Government large tracts of land in and around the city of Chicago, and were once quite wealthy in consequence of said gift, but it all seems to have vanished. Their wealth, no doubt, and social standing in the community dwarfed, doubtless, their desire' at that time for further participation in Indian payments.
    I do not understand why I was given the communication of Eliza Mendoky, as she makes no claim to enrollment on the Pottawatomie roll, but complains that her husband, Joseph Mondotey, has deserted, and that there is deposited $110 in S. It. Kirk & Son’s bank, of Athens, Mich., for her minor child, Angeline Mondokey, and wants the interest 1 aid to her for the support of her said child. I wrote to S. R. Kirk & Son for her and found, as I expected, that S. R. Kirk was the guardian of her daughter, Angeline, and that the money for said minor was paid said guardian by the disbursing officer in making a payment to the Pluron band of Pottawatomie Indians some seven years ago. This matter has now passed into the hands of the probate court of Calhoun County, Mich., and I have advised her to apply to the probate court and ask that the guardian be directed to pay to her, as the custodian of her said child, all sums of this monej' that should be expended for her support.
    The long list of applicants for enrollment forwarded the office by D. K. Foster, of Bradley, Mich., was D. K. Foster abandoned with one exception when he saw he would have to show that the applicants and their ancestors were upon some one of the rolls from 1843 to 1806. They are all Pottawatomie Indians. But Mr. Foster, as above stated, finding it would be difficult to prove this fact, abandoned this list. But they allied themselves with the Ottawa and Chippewa 'Indians in 1855 at a treaty made with said Indians at Detroit, Mich., and shared in the annuities and distribution of lands made said Indians in 1855 to 1871, and were never enrolled with any Pottawatomie Indians. Alice Sprague, however, who is named in said list, thought she recognized the name of her grandmother, Oge maw quay, on rolls of 1853, 1854, and 1866, and made affidavit covering that fact and gave a list of the descendants of her supposed grandmother. D. K. Foster and P. Pas she go qua made an affidavit of identity covering the same state of facts as Alice Sprague. Among those mentioned in the affidavit of Alice Sprague as the descendants of her supposed grandmother was Joe II. Cushaway on census roll of Pottawatomie, and Alex. Chippewa (Lewis), her cousins. When I reached Fern, Mich., the home of Joe EL Cushaway, he made an affidavit that Oge maw quay, named as the grandmother of himself and Alice Sprague, in her affidavit, was not their grandmother, but was the mother of Aken on said roll, and further that he is now 47 years of age and that he never knew his. grandmother, whose name was Oge maw quay, she having died some years before he was born. Substantially the same state of facts are sworn to bjr Angeline Cushaway, wife of Joe PI. Cushaway, and Alex. "Lewis, who is also a giandson of Oge maw quay. Joe H. Cushaway and his wife, Angeline Cushaway, were raised among the supplemental treaty Indians, and, remembered to have attended various payments made to said Indians, and had a better knowledge of knowing these Indians than Alice Sprague, who has never been enrolled among them, and whose association and enrollment were with the Chippewa and Ottawa Indians. 1 am dearly of the opinion that these people are not entitled to enrollment. See Exhibits C and D for evidence and list of ■descendants.
    Alex. Lewis, of Mount Pleasant, Mich., is a new applicant. He is the same party named in the affidavit of Alice Sprague under the name of Alex. Chippewa as the grandson of Oge maw quay. He bases his right to enrollment upon the fact that when about 2 years of age he was given by his mother, Pen quay, to his aunt, Ke no maw ne quay; that he was raised by said aunt, and was one of the three children enrolled with said aunt in 1866, Joe H. Cushav/ay, a nephew, and Stephen Pepeypeyor, a grandson of saia aunt, being the other two children.
    I learned after taking Alex. Lewis’s affidavit that he had a child not mentioned, and wrote to Joe H. Cushaway and requested him to furnish your office with the name and age of said child. The facts above enumerated are sworn to in an affidavit also by J. H. Cushaway and his wife, Angeline Cushaway.
    I was informed by Joe H. Cushaway that Angeline Poka-gen,'wife of Charles L. Pokagen, on census roll, was the daughter of Pe wa se quay, roll of 1856, No. 12, and that said Angeline Pokagen is his sister, and that said Angeline Pokagen was the child enrolled with his said mother in 1856, and should be enrolled with her said husband on the census roll of the Pottawatomie Indians. Joe H. Cushaway discovered the above fact just after I had completed my work at his house, which was then at 10 o’clock at night and snowing, and I had yet 12 miles to drive through the snow back to the railroad in order to get a place to lodge for the night; so I did not take his affidavit to the above statement of facts, to which he would have sworn.' . He further states that his sister, Angeline Pokagen, had by a former marriage a daughter, Eliza Aiken, aged 17 years, now living at Newaygo City, Mich.
    John J. Peashaway, residing at South Bend, Ind., and grandson of John Peashaway, Pottawatomie Indian, states that he believes that the name of Peasaway, as it is spelled on the roll of 1843, 1844, and 1848 and 1859, is his grandfather, and that his said grandfather had three children, viz, Henry Peashaway, his father, who is supposed to be dead; Lizzie Peashaway, now the wife of Lawrence Mix, and Julia Alexas, wife of Davis Alexas, who is enrolled on census roll. The mother of the Peashaways is not claimed to be a Pottawatomie woman, but reference to the roll will show that Peasha-way, as it is spelled on this roll, had enrolled with him in 1843, wife and three children; in 1844 and 1848, wife and six children; in 1859, wife and four children. The name of Peashaway seems to have dropped off the roll in 1848 until 1859, when it is again dropped from the roll and does not reappear. . Simon Pokagon states in his affidavit that John Peashaway never was enrolled and drew with said Indians because the agent knew that he was not one of those who came under the supplemental clause and would not permit him to be enrolled, but that Peashaway attended the payment in 1843 and subsequent payments, and that he does not believe the name of Peashaway on the rolls mentioned is the grandfather of John J. Peashaway and others named in his affidavit, and that he did not know any other Peashaways belonging to the Pottawatomie Indians. Elizabeth Mix states in her affidavit that she has no knowledge of her father being enrolled on roll of Pottawatomie Indians, but remembers when a child hearing him-speak of Indian payments and drawing annuities; that she believes that the name of Peashaway upon the various rolls and as it is spelled is her father. The discrepancy in the spelling of the Peashaway name, and the excess in the number of his family over and above those given by John J. Peashaway, together with his name being off and on the roll, as already stated, leaves doubt in my mind as to the right of these parties to enrollment, and creates the belief that they are mistaken in the name of the Peashawaj^s on said roll being their father. Should they be held to strict proof they certainly have no rights. See Exhibit D for evidence and list of claims.
    Andrew J. Blackbird, of Harbor Springs, Michigan, states that he believes that the name of Seebeequay on roll of Pottawatomie Indians in 1844, Ho. 6, is his grandmother; that his grandfather and grandmother were Pottawatomie Indians, and that his said grandmother remained with the Pottawatomie Indians until 1845, when she moved to northern Michigan and died during that year; that all of the descendants of his said grandmother lived in northern Michigan and intermarried with the Ottawa Indians and were enrolled with said Indians in 1836, and participated in the treaty of 1855 with said Indians and the United States Government, and shared in the annuities and lands awarded said Indians under both of said treaties until the year 1871, when their last treaty expired. You will observe that he does not state positively that Seebee-quay is his grandmother enrolled in 1814, nor has he any knowledge that she drew money with the supplemental Indians in 1844, nor does he know that there was not another Pottawatomie Indian by the name of Seebeequay. You will also observe that- he is now 80 years of age and. has always lived among the Ottawas. He stated to me, which does not appear in his affidavit, that ho never lived among the Pottawatomie Indians or knew anything about them. It might be well to state it is only necessary to show these people a name upon the roll that is similar, or is the name by which their ancestors are known, for them to jump at the conclusion that it is the name of their ancestor, and are ready to make the necessary affidavit and proof without knowing whether he or she actually drew money at the time or date stated in said roll, or that there was not another member of the tribe of the same name of their ancestor. He had no one within reach by whom he could prove his identity, and I left him with the necessary affidavit to have accomplished and forwarded to your office. The bare fact that the direct ancestors of' these people were Ottawa Indians and enrolled with said Indians and participated in their annuities from 1836 to 1871 should bar them from par-' ticipating in the payment soon to be made, to say nothing of his total want of proof that Seebeequáy on the roll of 1844 is his grandmother and his inability to identify her as having drawn money at that time. See Exhibit E for evidence ana list of family.
    I took the affidavit of S. M. Ski ppr qush, who thought the name of Way see bah was his grandmother, but afterward upon .examining the case I saw that he had wholly failed to make a case, and will not burden this report with a long history of the Ski ppr goshes.
    While my instructions were not to interfere with census rolls, I found the Indians were violently opposed to the enrollment of the Cowles heirs on said roll, and Simon Pokagen and Elizabeth Mix asked to be permitted to enter a protest to their enrollment. And from their affidavit you will see that Edward Cowles Kawkawkaw she, as he was enrolled, was not a Pottawatomie Indian, but was a half-breed Chippewa Indian. About the year 1857 Edward Cowles was admitted to the roll of said Indians because of his education and means, with the understanding that he should be enrolled with the said Indians and share in their annuities, and that such share as he drew should go as a compensation for his services in prosecuting the claim so to be distributed before the Government. I was told this by a number of other Indians, and have had correspondence with C. C. Cowles, son of Edward Cowles, now living at Council Bluffs, Iowa, which letters will be marked as an exhibit, that convinces me that the statement of Pokagen and others is true. C. C. Cowles was to have met me here, but has so far failed.
    In my judgment none of these Indians have any right to enrollment on the roll of Pottawatomie Indians coming under the supplemental treaty of September 27,1833, for the reason that all, with possibly two exceptions, have failed to make positive proof. They themselves or their witnesses could not state positively that their supposed ancestors were ever enrolled with said Indians, or that they drew money on the roll upon which they were found, or that there was not another Pottawatomie Indian by the same name. Alex Louis furnishes the same evidence as that which admitted Joe II. Cusha-way to enrollment, and think he should be enrolled, and do not - think an error would be made if Angeline Pokagon, wife of Charles L. Pokagon, and child were enrolled, who were mentioned on census roll by Inspector Cadman as not being found on roll of 1866.
    Respectfully,
    (Signed) M. D. Shelby,
    
      Spl. Indian Agt.
    
    
      Mr. John B. Shipman for the claimants:
    The action is based upon a judgment rendered by this court against the defendant in favor of the petitioners with other Indians and the acts of Congress making appropriations to pay it, but no part of which was paid the claimants.
    The judgment was for |104,626 then unpaid upon annuities, but other sums were to gi’ow due upon the perpetual annuities thereby -established. The Indians entitled to the sums due and the money to grow due the court decided were those Pottawatomie Indians to whom payments had been made by the Government yearly from 1843 to 1866, thus sending the claimants to the pay rolls of those years for their names.
    To pay the amount found due by the judgment and the perpetual annuities thereby established (these being capitalized), Congress appropriated $156,658.50, the Commissioner of Indian Affairs being charged with the duty of distributing the fund, and by another act Congress directed the Secretary of the Interior to detail or employ a person to take a census of those entitled to it, appropriating $1,000 also to pay for the work.
    The Department detailed an employee to take the census, giving him only the pay roll of 1866 to work from, and o'rdering him to make no additions thereto other than the descendants of those whose names appeared upon it.
    The claimants’ attorney protested against it, insisting that the enumerator inelude those on all the rolls from 1843 to 1866, inclosing a list containing the names of over 200 of the claimants in this cause, the names of their ancestors, and number on the pay rolls of 1843 and 1844 being also given. The Secretary of the Interior- finally directed the Commissioner that all Indians on the rolls from 1843 to 1866, or who were descended from anyone on those rolls, should be included in the census.
    Instead the Commissioner directed another agent to examine and report upon certain Indians whose names were furnished him — none of the claimants being included in the list-— but to make no additions to the roll mentioned. This agent advised that the names of- two Indians descended from those on the rolls of 1866 only be added to that census. This was done, and one more was added by the Department, and upon this census, with the three names added, $118,554.52 of the fund was paid, none of the claimants receiving any of it.
    The claimants number 272, and as to them the judgment is wholly unpaid.
    The jurisdiction of the court is well settled upon two grounds. First. This court has jurisdiction of a claim based upon an unpaid balance of a judgment already rendered. (Hóbbs v. U. S., 19 C. Cls. R., 220, 229; Brown!s case, 6 C. Cls. it., 171; United States v. Grady, 22 Wall., 641.)
    Second. Under the specific appropriations made in the acts of Congress mentioned, a means of satisfying this claim was provided. The claim is therefore also founded upon a law of Congress, within the meaning of Revised Statutes, section 1059, and is one of which this court has jurisdiction. (US. v. Weld, 127 U. S., 51 (32-62); Same ease, 23 C. Cls. R., 126; HukilVs case, 16 C. Cls. R., 562; Iluffma/n! s ease, 17 C. Cls. R., 55; Mordieai ease, 19 C. Cls. R., 11; Wray ease, 19 C. Cls. R., 154; Blount!s ease, 21 C. Cls. R., 274; Georg!s case, 18 C. Cls. R., 432; JordcnVs case, 19 C. Cls. R., 108.)
    
      Mr. William H. Button (with whom was Mr. Assistant Attorney-General Pradt) for the defendants:
    (a) Thejpay roll of1866 was the best evidence of those entitled to distribution.
    
    In the case in which the judgment was rendered upon which this suit is based, this court considered the pay rolls adopted by the United States for the payment of annuities to the Indians in Michigan as being the best evidence of the number of those Indians. {Pottawatomie Indians v. U. S., 27 C. Cls. R., 403.)
    For an equal reason such pay rolls should be held the best evidence of all other facts indicated by them. Each succeeding roll indicates the individual Indians who were entitled to payment each succeeding year and the last roll, that of 1866, must indicate which Indians were entitled at that time to said annuities. It embodied the judgment of the United States officials as to what Indians were entitled on that date and as to what Indians who had appeared on the former rolls should be dropped and as to what descendants of those Indians who had deceased in the meantime should be added. On these points it is much better evidence than any that can now be procured. Consequently if the pay roll of 1866 was adopted by the Interior Department for the distribution, such distribution was correct.
    
      (b) The United States was discharged by the distribution made.
    
    The suit in which the judgment was obtained was a suit in equity by a few representing a large class to obtain a fund belonging to such class and to obtain a distribution thereof. Such procedure is allowable wherever it is impossible to join all the parties entitled to a distribution either because they are exceedingly numerous or because they can not be ascertained. (Story Equity Practice, 9th ed., sec. 207a, sec. 105; West v. Randall, Fed. Cases, No. 17424; Mcvndevillev. Qriggs, 2 Pet., 482; Smith v. Swormstedt, 16 How., 288.)
    In the suit in which this judgment was rendered all the considerations making such a procedure desirable were present. The parties were exceedingly numerous and exceedingly uncertain. The suit was properly brought by certain individuals on behalf of themselves and others similarly situated. All the parties interested either must be before the court or the suit must be for their benefit. (Story’s Equity Pleadings, secs. 98-99; Leigh v. Thomas, 2 Yes., 312; Browns. Ricketts, 3 Johns. Ch., 553.)
    Therefore if the former suit had not been for the benefit of all concerned it must have been dismissed.
    In such a suit anyone having an interest can come in, although not made a party to the suit. (Story’s Equity Pleadings, 99; West v. Randall, Fed. Cases, 17424; Waite v. Temple, 1 Sim. & St., 319; Giffords. Hort, 1 Sch. & Ler., 409.)
    . The very existence of such a procedure must lead to the result that a judgment fixing the amount of the fund which belongs to the class is binding on all members of that class, although they are not parties to the suit. It must also lead to the result that a distribution can be had of the whole fund, which distribution is final so far as the party holding the fund is concerned, although the distribution may not embrace all the parties actually entitled. If some are left out by mistake, or for other reasons, they can have no recourse against the party holding the fund, but majr proceed against those to whom the fund has been distributed to recover their distributive shares. Ordinarily a reference is had to a master to determine, upon advertisement, who are the individuals entitled. (Story’s Equity Pleading, sec. 99; Kenyon v. Worthington, 2 Dick., 668.)
    Mr. Story says, Equity Pleadings:
    “ If, however, they decline so to come in before the master they will be excluded from the benefit of the decree; and yet they will from necessity be considered as bound by the acts done under the authority of the court.” (Sec. 99.)
    “ On the contrary, although they (those omitted) have no remedy against the executor, or administrator, or trustee, yet they have a right to assert their claim to a share in the property against the creditors, legatees, or distributees who have received it.” (Sec. 106.)
    (See also Farrell v. Smith, 2 Ball & B., 337; Dmid v. Frowd, 1 Myl. & K., 200.)
    Under the procedure above indicated an estate had been distributed among the next of kin. Mary David filed her will in the present suit, alleging that she was the sole next of kin. It was held she was bound by the former procedure, and that her only recourse was against those who had received the money. The court said:
    “For the same reason, if a creditor does not happen to discover the proceedings in the court until after the distribution has been actually made by the order of the court amongst the parties having, by the master’s report, an apparent title, although the court will protect the administrator, who. has acted under the orders of the court, yet, upon a bill filed by this creditor against the parties to whom the property has been distributed, the court will, upon proof of no wilful default on the part of such creditor, and no want of reasonable diligence on his part, compel the parties defendants 'to restore to the creditor that which of right belongs to him.”
    
      (Gillesfie v. Alexander, 3 Russ., 131; Gregg v. Somerville, 1 Russ. & M., 338; Hallett v. Ilallett, 2 Paige’s Ch., 15.)
    The chancellor,says:
    “If such parties neglect to come in under the decree, after a reasonable notice to them for that purpose, the fund will be' distributed without i-eference to any unliquidated or unsettled claims which they might have had upon the same.”
    
      (Oa/mpbell v. Railroad Go., Fed. Cas., 2366; Kerrison v. Stewart, 93 U. S., 155.)
    In the case at bar no reference was made to a master, but it was left to the Indian Office to. distribute this fund. The Supreme Court approved of this 'direction. No better disposition could have been made of the case, and the Indian Office was much better equipped to find out who was entitled than any master or auditor from this court would have been.
    The amount of the fund as adjudicated in the former proceeding is binding upon all of this class of claimants, and the distribution having been made upon due notice to all, is binding upon those who were omitted, under the above authorities.
    (c) These claimants, by not insisting on their rights at time of dist7'ibution, ean not now be heard.
    
    These Indians were represented by counsel, who made a pro-testagainst the first scheme of distribution, which protest was upheld, and the ideas of the counsel for these claimants were carried out as well as they could be by the Indian officers; and it can not be said that these claimants are without fault in standing by and seeing the money distributed. They did know, or at least should have known, what was going on, and then was the time to establish their claims.
    (id) Not sufficient facts are shown to support a decree.
    
    These Indians had no tribal organization. When the main body moved West it took with it all the tribal organization, and those who remained were emancipated from any tribal control. (Pottawatomie Indians v. TJ. S., 27 C. Cls. R.,403; 
      Eastern Band of Cherokees v. The United States, 117 U. S., 288; United States v. Boyd, 68 Fed. Rep., 579; Lovyry v. Weaver, Fed. Cas., 8584.)
    The amount of the judgment awarded in the suit upon which this is based was distributed per capita and not per stirpes. This was an error, inasmuch as the annuities belonged to individuals at the time they became due and did not belong to the tribe. Consequently any portions that were not paid belong to the estates of those Indians who have since deceased, and the fund should have been distributed by representation and not as communal property. The result is that the distribution made was erroneous, and what amount is due to these individual claimants in this suit, if anything is due, can not be determined upon this record. To determine what is due these claimants a new accounting would have to be taken, in which the family relations of all those who have already received their portion should be investigated, as well as the family relations of these particular claimants. The consequence is that the record does not present facts enough upon which to base a' decree of distribution such as is asked for in this petition.
   Nott, Ch. J.,

delivered the opinion of the court:

When the former cases were before the court (27 C. Cls. R., 403), in which the present claimants were represented, it was' found as a fact (ib., p. 408) that the number of Pottawatomie Indians who remained in Michigan under the treaty of 1833 was 291, and the number who removed to the West was 2,812; and it was held that the just proportion of those who remained in Michigan, in certain tribal funds, would amount, June 30, 1892, to §17,630.67. To this “just proportion,” §17,630.67, was added balances of annuities and other funds, bringing up the amount for which judgment was rendered to §104,626.

It is unfortunate for some of the claimants in the present suit that the evidence upon which they now rely was not before the court then. In the former cases the parties who were represented by the suit of the Pottawatomies v. United States took the ground that they were Indians and descendants of Indians in Michigan who had been recognized by the administrative branch of the Government as being entitled to remain in Michigan under the supplemental article of the treaty of 1833. The parties represented by the suit of Pam-to-pee et al. v. United States contended that the others had neither complied with the terms of the treaty by moving to the West, nor with the supplemental article of the treaty by moving to the North; and they stood, accordingly, upon the ground that they, who had complied with the supplemental article, were the only Indians entitled to participate in the tribal funds. The court deemed itself bound by the action of the Government in recognizing the parties represented oy the former suit, and accordingly rendered judgment for them; but the court did not undertake to determine who the then existing individual claimants were who were entitled to participate in the distribution.

To ascertain the proportional amount of the common fund which should be distributed, the court resorted to the first rolls which had been made by the Indian Office after the treaty of 1833, viz, those of 1843-44, and to a summary of the roll of 1866.

The present claimants accept the judicially determined facts of the former controversy as incontrovertible, but they allege and endeavor to prove that they are Indians or descendants of Indians who were upon the rolls of 1843 and 1844, and that they have not been paid.

It now appears that, the ascertained fund — the judgment— was paid to only 272 Indians, a number slightly less than the number of Indians existing in 1833; and this diminished number is striking because the fund was distributed as .communal property — that is to say, both parents and children took per capita as members of the community. If it had been an ordinary case of distribution according to common-law rules, there would be, say, two grand parents living, who alone would be entitled to be paid. But in a case of communal property there would be two grand parents, and, say, four parents, and, say, sixteen grandchildren, a total of twenty-two persons, all equally entitled to share in the fund. The claimants in the present suit bring the number of descendants up to 544 persons.

The gravamen of the plaintiff’s case is this: The Secretary of the Interior directed that a census, so called, be made of Indians entitled to participate in the judgment. On tbe 27th of July, 1895, the agent of the Department being still in the field and engaged in the work, the claimant’s attorney addressed a letter to the Secretary of the Interior calling his attention to the fact that the agent had taken as a basis of investigation a roll of the Michigan Indians made in 1866, and had excluded from consideration the rolls of 1843 and 1844; and he pointed out in his communication that this proceeding would work great injustice to persons or descendants of persons who had died between 1843 and 1866; and he insisted that the census should omit no one whose name was on those rolls which had been before the court. The Secretary of the Interior, on the 10th of January, 1896, after due consideration of the matter, decided that those should be enrolled who make satisfactory proof “that they were on one of the rolls taken in the years 1843 to 1866 inclusive, or are descended from some one on one of those rolls.”

To this the claimants’ counsel did not object; he had, indeed, suggested in his communication of the 27th of July, 1895, that that was the proper course to be pursued. But he insists that this was not done; that the order to do so, as well as the decision of this court, was ignored; that no attention was paid to the list containing the names of Indians entitled to share in the judgment fund; that no other census than Cadman’s census roll was ever made or attempted to be made.

The evidence does not altogether sustain the claimants’ case. It appears, on the contrary, that the agent endeavored to carry out his instructions. His report to the Commissioner of Indian Affairs, March 14,1896, shows that he traveled through the country where these Indians resided, or were supposed to reside, and notified them, so far as he could, to appear and prove their cases. In his report he said:

“I found these people very badly scattered, and as they do not frequent post-offices, the notices prepared for me to be posted in the various post-offices, to give them notice of my coming, were of but little value. In nearly every instance, on reaching the vicinity of these Indians, I had to take teams and drive to their homes. I got, however, the newspapers to publish the principal points I would visit.”

A number appeared, some of whom claimed because their ancestors’ names were on the rolls of 1843 and 1844, others because they had Pottawatomie blood in their veins. All of these applicants were rejected for various reasons; some because their proof was insufficient; some because they or their forefathers had allied themselves with other Indian tribes; some because their fathers’ names had been erroneously placed, in the opinion of Indian agents, upon the former rolls, and had been dropped from subsequent rolls. The investigation was hurried, and to the judicial mind is unsatisfactory, yet it can not be said that the agent disregarded the rolls of 1843 and 1844. The evidence produced -was to his mind insufficient and unsatisfactory to prove that the forefathers of those applicants had rightfully been placed upon the rolls. The evidence now produced to establish the fact that 272 of the present claimants are direct descendants of the Indians who were upon the rolls in 1843 and 1844 is not altogether satisfactory to the court, but in the absence of countervailing testimony it may be said to present a prima facie case.

If we turn to the legal record in the case the following facts appear:

The judgment which was recovered in this court on the 27th June, 1892, is in these words:

“The court, on due consideration of'the premises, find for the claimants and do order, adjudge, and decree that the said Pottowatomie Indians do have and recover of and from the United States the sum of one hundred and four thousand six hundred and twenty-six dollars.”

No decree was entered designating the individuals among whom the fund was to be distributed or directing the manner of distribution or the officer who was to make the distribution, such as were entered in former cases of Indian claimants. (Western Cherokees v. United States, 27 C. Cls. R., 1, 61; Journeycake v. United States, 28 ib., 281, 319; Whitmire v. Cherokee Nation et al., 30 ib., 138, 177; decree entered March 18, 1895.)

The judgment above set forth in the case of the Pottawatomie Indians was appealed from bjr the claimants in the case of Pam-to-pee v. United States, but not by the United States (148 U. S. R., 691), and was affirmed. The Supreme Court in its opinion said that it is contended with a great show of reason by the appellants—

“That the question of what Indians are entitled to participate in the fund is one of law, to be settled by the court, and should not be left to clerical functionaries. Our difficulty in disposing of this part of the subject is that we have neither findings nor concessions that enable us to deal with it intelligently.” (Ib.,704.)

In regard to the individual Indians entitled to recover, the Supreme Court also said:

“But these facts are not found for us in any authoritative form. Nor, indeed, would it seem that the court below was furnished with information sufficient to enable it to define what Indians or what number of Indians entitled to distribution are represented by the respective attorneys or agents. ”

At this point, if the former case had been a similar suit in chancery between ordinary litigants, it would have been referred to a master or referee to ascertain and report as to the individuai claimants entitled to recover, and the final decree would not have been entered until a coming in and confirmation or correction of the master’s report. The Secretary of the Interior, however, seems to have inferred fromlanguage in the opinions of the two courts that he was authorized to proceed and ascertain who those Indians were, and to prescribe the methods for so ascertaining and determining the amount to be distributed to each individual claimant. He apparently requested an appropriation from Congress to meet the expenses of the investigation; and Congress, by the Act %d Ma/rch, 1895 (28 Stat. L., 894), enacted:

“That the Secretary of the Interior is hereby authorized and directed to detail or employ an Indian inspector to take a census of the Pottowatomie Indians of Indiana and Michigan who are entitled to a certain sum of money appropriated by Congress to satisfy a judgment of the Court of Claims in favor of said Indians. And for the purpose of making the payment to the Pottowatomie Indians of Indiana and Michigan of the one hundred and four thousand six hundred and twenty-six dollars, appropriated by the last Congress to satisfy a judgment of the Court of Claims, there is hereby appropriated the sum of one thousand dollars.”

The appropriation above referred to, for the satisfaction of the judgment of this court, is in the sundry civil appropriation act, August 23, 1894 (28 Stat. L., 424, 450), and is in these words:

“For payment of judgments of the Court of Claims, as follows:
“To the Pottawatomie Indians of Michigan and Indiana, one hundred and four thousand and twenty-six dollars.”

The Secretary of the Interior then appointed an agent to ascertain the names and number of the claimants entitled to be paid, and prescribed the means and methods for ascertaining them and the principles upon which the fund should be distributed, and the whole of the fund was paid away. Nevertheless, there is not a line in the judgment of this court or in any statute of Congress which empowered or authorized the ' Secretary to dispose of the fund.

These facts present a delicate if not difficult question. The counsel for the defendants has taken the broad ground that the Government can not be made to pay a second time; and if this were an ordinary case of the kind, the array of well-chosen authorities which he has presented would be overwhelming. But there is no case or authority cited which exactly meets the conditions of the present case. The defendants were not administrators, executors, or trustees paying -involuntaria under the imperative order of a court; no court could have committed them for contempt if they had refused to pay, and their official representative, the Secretary of the Interior, was not without notice that there were claimants seeking to participate in the fund who also claimed to be within the letter and spirit of the court’s decision. '

The authorities cited by the counsel may be resolved into two general classes: One where an officer, such as an administrator or executor, pays away a fund under the coercion of a decree or order of a court having jurisdiction of the fund; the other, where an innocent stakeholder, without fault, negligence, or mistake, pays away a fund to the injury of a negligent party who fails to present his claim in due time. Apart from these authorities there is the great principle of equitable estoppel, that where a man remains silent when he ought to speak he can not be permitted to speak when it will be to the injury of another person who was misled by his silence. In this case the claimants knew, or could have known, that the census made by an agent of the Interior Department was returned and filed in August, 1895, and that the final decision of the Secretary of the Interior was made in Januaiy, 1896. So far the case seems clear. The resulting question is, W ere the claimants bound to ascertain between that time and the payment of the fund during the month of November, 1896, that their names were on the pay roll, or might they assume that the direction of the Secretary would be correctly carried out by his subordinates?

The court has reluctantly come to the conclusion that that burden rested upon the claimants. The documentary proceedings in the Interior Department were not completed when the order of the Secretary was made. His decision was his direction that a new pay roll be made, and the circumstances required vigilance on the part of persons, whose right to be there had not yet been determined by name, to see that their names were duly placed upon the final pay roll. It is the misfortune of these claimants that they did not do so.

The counsel for the claimants has cited the practice of courts of equity, and particularly the English courts, in requiring notice to be published in case of multitudinous defendants requiring them to come in and assert their rights. But such notices are not given for the benefit of persons who have appeared in and have actual knowledge of a suit. These Indians were dwelling in a not very wide extent of territory; the subject of litigation was something of more than common interest to every one of them. Assuredly the act of Congress of March 19,1890 (2.6 Stat. L., 24), authorizing them to bring suit in this court to determine their rights, the bringing of two suits by contesting claimants, the trial of the cases, the decision of this court, the appeal to the Supreme Court, the decision of the Supreme Court, the appropriation by Congress for the payment of the judgment, the act of Congress authorizing a census to be made, and the taking of the census by an agent of the Interior Department, were more than equivalent to the publishing of a notice in the newspapers.

The counsel for the claimants has urged with great earnestness that these parties for whom he appears are simple, friendless, and unlettered men, women, and children, knowing little of their own rights and utterly ignorant of legal pi’oceedings. And that is true. But the former case, in which the court might have exercised the discretion of a court of equity and allowed parties to come in even after the decree and .assert their rights, is closed; the judgment therein has been satisfied; the claimants stand directly upon their legal rights, and there can not be one law for the intelligent and another for the ignorant.

The judgment of the court is that the petition be dismissed.  