
    THE UTE INDIANS v. THE UNITED STATES.
    [No. 30360.
    Decided May 23, 1910.]
    
      On the Proofs.
    
    The claimants are the ten tribes of Ute Indians known as the Confederated Bands. They come into court under a special jurisdictional act and seek an accounting under an agreement or statutory contract between them and the United States made and set forth in the act 15th June, 1880, which provided for the sale of the Ute lands by the Government and the disposition of the proceeds for the benefit of the Indians. The principal legal questions involved are whether the cession of lands by the Indians which they occupied, but to which they had no legal title, was a sufficient consideration to uphold the agreement, and whether the Indians should be credited with interest in cases where the defendants instead of selling the lands and investing the proceeds for the benefit of the Indians misappropriated the lands to their own uses and purposes. The words of the statutory agreement are: “ that none of said' lands, whether mineral or otherwise, shall he liable to entry and settlement under the provisions of the homestead law, hut shall he subject to cash entry only," and that the proceeds shall be first applied to reimbursing the United States for advances made for the benefit of the Indians, and that the remainder “ shall he deposited in the Treasury as noto provided hy law for the benefit of said Indians,” “ and the interest thereon shall he distributed annually to them." The lands which were not sold for the benefit of the Indians as above provided are lands “ which have been set apart and reserved from the pubUe lands as public reservations or for other public uses under existing laios and proclamations of the President.”
    
    I.Where a statute authorizes an accounting between the United States and certain Indian tribes and directs the court to credit the Indians with “ the value of all lands ceded by the said Indians which have been set apart and reserved from the public lands as publie reservations or for other public uses under existing laws and proclamations of the President,” the court, when ascertaining the value of the lands, may refer to the statutes authorizing or regulating the sale of the public lands as evidence and may take the minimum price named in the statutes as the value of the lands'under consideration, though it be a matter of common knowledge, of which the court takes notice, that portions of the lands are worth less in the market than the minimum price named in the statutes.
    II.Though territory cede^ by Mexico to the United States by the treaty of Guadeloupe Hidalgo may not have been “ Indian country,” it nevertheless was in the occupation of the Indians, and the United States recognized a right in them sufficient to be the subject of treaty and cession. (9 Stat. L., p. 984; 13 id., p. 673; 15 id., p. 619.)
    III. Where Indians had no title to lands occupied by them as hunting grounds which the court can recognize as valid, yet if they honestly claimed title the relinquishing of it to a party who wished to purchase would be a good consideration; and in the case of lands derived from Mexico under the treaty of Guadaloupe Hidalgo the cession by the Indians to the United States of their interests in such lands was a sufficient consideration to sustain the agreement set forth in the Act 15th June, 1880 (21 Stat. L., p. 199).
    IV. Where there were existing treaty stipulations between the Government and a tribe of Indians, which have been recognized as valid for more than forty years, the defendants can not raise the question whether certain payments made to the Indians pursuant to the terms of the treaties were without a valid consideration, and in • accounting with the Indians they can not charge them with these payments as having been improperly made by their agents.
    
      Y. Where a payment of $70,064 was to one of the claimants, and relates to a different transaction than the one under consideration, it can not be brought into the case as a set-off.
    VI.Where the original agreement between the parties (the act 1S80) only provides that interest shall be paid upon the money derived from the sale of certain lands, and the jurisdictional act, by virtue of which the case comes into this court, only provides that the court shall render judgment “ on the claims and rights of said Indians under said agreement, including the value of all lands ceded by the said Indians which have been set apart and reserved from the public lands as public reservations or for other public use under existing laws and the proclamations of the President as if disposed of under the public land laws of the United States, as provided by said agreement,” the court can not regard the setting apart and reserving of the Indians’ lands for forest reserves and other public uses as cash sales; and the Indians can not recover interest on the value of the lands so set apart and reserved. The court reviews the statutes relating to interest.
    VII.In the statement of an account between the parties the Indians can not be allowed interest on moneys due if at the same time they were indebted in like amounts to the United States for advances made.
    VIII.In the construction of the jurisdictional act the court must assume that if Congress had intended that the court should consider the whole area of forest reserves to have been sold as of the date when withdrawn from the market Congress would have said so in unmistakable terms.
    IX.Interest can be recovered from a sovereign only by the sovereign’s consent; and where a sovereign consents to pay interest it means simple interest only.
    X.It is a general rule either at law or in equity that in the absence of a contract interest upon interest is not recoverable for the detention of money. It is only where a trustee, guardian, or executor has abused his trust or been guilty of gross negligence that interest upon interest will be charged against him. The Government can not in law be adjudged guilty of fraud, bad faith, or negligence, and can never be penalized by being charged compound interest.
    
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. The plaintiffs are a confederated band of Ute Indians between whom and the Government of the United States the relation of guardian and ward has existed since February 2, 1848. On June 30, 1908, the total number of Indians composing the plaintiff confederated bands was as follows:
    White River Utes, known also as the Xampa and Grand River bands_ 295
    Uinta Utes- 427
    Southern Utes, known also as the Muache, Capote, and Wee-minuche bands- 808
    Uncompahgre Utes, known also as the Tebaguache band_ 470
    Total_2,000
    In their tribal relations they are known as the Uncom-pahgre, the Tabeguache, Muache, Capote, Weeminuche, Yampa, Grand River, and Uinta Bands of Ute Indians, and also as the Confederated Bands of Ute Indians of Colorado; also, as the White River Utes and the Southern Utes and the Uncompahgre Utes.
    II. By an act of Congress approved March 3, 1909 (35 Stats., 788-789), jurisdiction was conferred upon the Court of Claims as follows:
    “ That to carry into effect the agreement between the Confederated Bands of Ute Indians of Colorado and the United States, ratified by the act of Congress approved June fifteenth, eighteen hundred and eighty, being ‘An act to accept and ratify the agreement submitted by the Confederated Bands of Ute Indians in Colorado for the sale of their reservation in said State, and for other purposes,’ and to make the necessary appropriations for carrying out the samé (Twenty-first Statutes, page one hundred and ninety-nine), jurisdiction is hereby conferred upon the Court of Claims to hear, determine, and render final judgment, with right of appeal as in other cases, on the claims and rights of said Indians under said agreement, including the value of all lands ceded by the said Indians which have been set apart and reserved from the public lands as public reservations or for other public uses under existing laws and proclamations of the President, as if disposed of under the public-land laws of the United States, as provided by said agreement, and the money due therefor; and the court shall set off against any sum found due said Indians the amount paid to them under the fifth section of said act of June fifteenth, eighteen hundred and eighty, being fifty thousand dollars per annum up to the date of rendition of final judgment in this cause, also any other sum or sums that shall be found to be properly chargeable under the terms of said agreement and also any sum or sums paid by the United States to or for the benfit of said Indians, whether as a gratuity or otherwise, except such sums as have been paid for a specific purpose and an adequate consideration; and the credit of one million two hundred and fifty thousand dollars set apart in the Treasury by the terms of said agreement upon which said annuity has been estimated shall, upon the rendition of final judgment in this cause, cease to exist as a trust fund, and from and after the date of said judgment no annuity shall be estimated or paid therefrom; and the action herein authorized shall be consolidated with cause congressional numbered eleven thousand two hundred and forty-eight, now pending in said court, for the purpose of using at the trial thereof all evidence which has been adduced in said pending cause, and shall be commenced by petition under the title of said pending cause and shall be conducted by the attorney of record now appearing therein or by any attorney by him specifically authorized to appear; and the Attorney-General shall continue to appear 'ancl represent the United States; and in rendering judgment herein the court shall fix upon a quantum meruit and set apart just and reasonable compensation to the attorneys on behalf of plaintiffs who have rendered actual service in prosecuting said claim before the committees of Congress and in conducting the said cause before the courts in the name of the attorney of record in said pending cause, or any attorney by him specifically authorized, and said compensation shall be paid to such attorney by the Secretary of the Treasury out of any money in the Treasury arising from the sale of said ceded lands or from the proceeds of said judgment, and the balance of said judgment shall be held in the Treasury for the benefit of said Indians as a trust fund, and the interest thereon shall be distributed annually to them in accordance with the terms of said act of June fifteenth, eighteen hundred and eighty; and the said cause shall be advanced in hearing by the Court of Claims, and by the Supreme Court of the United States if the same shall be appealed.” ^
    III. By Senate resolution of December 11, 1903, No. 52, Fifty-eighth Congress, second session, this cause was sent to the Court of Claims and was numbered “ Congressional, 11248,” that upon the hearing thereof the same was dismissed for want of jurisdiction; that thereupon a motion for a new trial was filed, which motion was pending at the time of the passage of the jurisdictional act referred to in Finding II herein, which action is now consolidated with the cause now on hearing.
    IY. By the second article of a treaty by and between the plaintiffs and the United States, concluded at the city of Washington, in the District of Columbia, March 2, 1868, whereof ratification was requested with amendment July 25, 1868, and which amendment was accepted by the Indians August 15, September 1, 14, 24, and 25, 1868, and which treaty was proclaimed November 6, 1868 (15 Stat. L., Treaties, pp. 619 et seq.), certain territory was set apart for the absolute and undisturbed use and occupation of plaintiffs and for such other friendly tribes and individual Indians as from time to time they might be willing, with the consent of the United States, to admit among them, the United States solemnly agreeing that no persons except those by said treaty authorized so to do and except such officers, agents, and employees of the Government as might be authorized to enter upon the said Indian reservation in the discharge of duties enjoined by law, should ever be permitted to pass over, settle upon, or reside in the territory described therein; that the territory so set apart to plaintiffs is described in said second article of said treaty as follows:
    “ Commencing at that point on the southern boundary line of the Territory of Colorado where the meridian of longitude 107° west from Greenwich crosses the same, running thence north with said meridian to a point 15 miles due north of where said meridian intersects the fortieth parallel of i north latitude; thence due west to the western boundary line ' of said Territory; thence south with said western boundary line of said Territory to the southern boundary line of said Territory; thence east with said southern boundary line to the place of beginning.”
    Afterwards, to wit, on the 13th day of September, 1873, the plaintiffs by the name and style of “ Certain Ute Indians in Colorado by the chiefs and headmen of the Tabeguache, Mauche, Capote, Weeminuche, Yampa, Grand Biver, and Uintah bands of Ute Indians,” entered into a duly ratified convention at Los Pinos Agency for the Ute Indians in the State of Colorado, whereby, by the first article of said convention, plaintiffs relinquished to the United States all right, title, claim, and interest in and to the following-described portion of tbe reservation conveyed to them by the United States by the treaty proclaimed November 6, 1868, hereinbe-fore set forth, that is to say:
    “ Beginning at a point on the eastern boundary of said reservation 15 miles due north of the southern boundary of the Territory of Colorado, and running thence west on a line parallel to the said southern boundary to a point on said line 20 miles due east of the western boundary of Colorado Territory; thence north by a line parallel with the western boundary to a point 10 miles north of the point where said line intersects the thirty-eighth parallel of north latitude; •thence east to the eastern boundary of the Ute Reservation; thence south along said boundary to the place of beginning;
    the consideration for the said cession was a sufficient amount of United States bonds at 5 per cent per annum to produce the sum of $25,000 per annum, to be held in perpetual trust for the said Ute Indians subject to disbursement or investment at the discretion of the President or as he may direct, for the use and benefit of the Ute Indians, annually forever..
    The annuity, provided under the terms of the act of April 29, 1874 (18 Stats., 41), was accepted by plaintiffs in full compensation for the territory ceded under that act, the interest being 5 per cent per annum.
    The cession of 1873 and the consideration paid therefor by the terms of the act of April 29, 1874, concluded that transaction.
    Afterwards, by the terms of an agreement between petitioners and the United States, which is embraced in and made part of “An act to accept and ratify the agreement submitted by the Confederated Bands of Ute Indians in Colorado for the sale of their reservation in said State, and for other purposes, and to make the necessary appropriations, for carrying out the same,” approved June 15, 1880 (21 Stats., 199), the chiefs and headmen of the Confederated Bands of Ute Indians, being these plaintiffs, promised and agreed to use their best endeavors with their people to procure their consent to cede to the United States all remaining territory of these petitioners in Colorado, being the remainder of the lands set apart to the permanent use and occupation of petitioners by the treaty of 1868, as in this finding first set forth; that said agreement was duly assented to and ratified by plaintiffs.
    In pursuance of section 2 of said act the President apr pointed, by and with the advice and consent of the Senate, five commissioners to carry into effect the provisions of said act.
    By the third section of said act of cession approved June 15, 1880, it was provided as follows:
    “ That the Secretary of the Interior be, and he is hereby, authorized to cause to be surveyed, under the direction of said commissioners, a sufficient quantity of land in the vicinities named in said agreement to secure the settlement in severalty of said Indians as herein provided. And upon completion of said survey and'enumeration herein required, the said commissioners shall cause allotments of lands to be made to each and all of said Indians, in quantity and character as set forth in the agreement above mentioned, and whenever the report and proceedings of said commissioners, as required by this act, are approved by the President of the United States, he shall cause patents to issue to each and every allottee for the lands so allotted, with the same conditions, restrictions, and limitations mentioned therein as are provided in said agreement; and all lands not so allotted the title to which is, by said agreement of the Confederated Bands of Ute Indians, and this acceptance by the United States, released and conveyed to the United States, shall be held and deemed to be public lands of the United States and subject to disposal under the laws providing for the disposal of the public lands, at the same price and on the same terms as other lands of like character, except as provided in this act: Provided, That none of said lands, whether mineral or otherwise, shall be liable to entry and settlement under the provisions of the homestead law, but shall be subject to cash entry only in accordance with existing law; and when sold the proceeds of said sale shall be first sacredly applied to reimbursing the United States for all sums paid out or set apart under this act by the Government for the benefit of said Indians, and then to be applied in payment for the lands, at one dollar and twenty-five cents per acre, which may be ceded to them by the United States outside of their reservation in pursuance of this agreement, and the remainder, if any, shall be deposited in the Treasury as now provided by law for the benefit of said Indians, in the proportion herein-before stated, and the interest thereon shall be distributed annually to them in the same manner as the funds provided for in this act: Provided further, That the subdivisions upon which are located improvements to be appraised, as provided for in section two of this act, shall be offered to the highest bidder at public sale after published notice of at least thirty days by the Secretary of the Interior, and the same shall be absolutely reserved from occupation or claim until sold.”
    In accordance with section 2 of said act, a census of the plaintiffs was thereafter made by said commissioners, and the plaintiffs were separated thereunder into three divisions, as follows:
    First. Those known in the agreement above referred to as “ Southern Utes.”
    Second. Those known as “ Uncompahgre Utes.”
    Third. Those known as “ White River Utes.”
    Subsequently, in conformity with the provisions of section 2 of said act, said commissioners after due examination reported that they had examined the land on the Grand River near the mouth of the Gunnison, and found it to be unsuitable for the plaintiffs for agricultural or grazing purposes, and that there was no other land suitable for agricultural purposes within a reasonable distance which could be used in connection with that near the mouth of the Gunnison River and give the plaintiffs the quantity contemplated.
    TJNCOMPAHGRE TTTES.
    Accordingly said commissioners, in conformity with said act, selected a tract of land in the valleys of the White and Green Rivers in Utah, which was subsequently surveyed ' and defined by metes and bounds, containing about 1,933,440 acres, for the Uncompahgre Utes. Said selection was approved by the Secretary of the Interior, and said Uncom-pahgre Utes were all removed thereto by the United States by October, 1881.
    Under the acts of August 15, 1894 (28 Stats., 337), June 7, 1897 (30 Stats., 87), March 1, 1899 (30 Stats., 940), and joint resolution, June 15, 1902 (32 Stats., 744), 75,978.19 acres of land have been allotted in severalty to said Uncom-pahgre Utes from the tract of land in Utah thus selected by said commissioners.
    
      WHITE RIVER UTES.
    The White Elver Utes were removed, by the United States to the Uintah Agency, Utah, after much difficulty in November, 1881. Under said agreement and act of June 15, 1880, and also under the acts of May 27, 1902 (82 Stats., 263, 264), and joint resolution, June 10,1902 (32 Stats., 744), 39,589.84 acres of land have been allotted in severalty to the White Eiver Utes in Utah.
    SOUTHERN UTES.
    The Southern Utes were not removed from their former reservation in Colorado, but remained on a tract of land about 110 miles long, east and west, and 15 miles in width, containing a total area of about 483,750 acres, of which approximately 406,000 acres is in Colorado and the balance in New Mexico. Under section 6, act of February 20, 1895 (28 Stats., 677), with the consent of said Southern Utes, a portion of the above lands was opened to settlement and •entry allotments in severalty having been previously made in accordance with said act to 371 Southern Utes, comprising a total of 72,810.65 acres of land, all in Colorado.
    Y. Of the lands ceded to the United States as set forth in the fourth finding, 4,126.57 acres have been applied to reservoir sites by authority of sections 18, 19, and 20 of the act of Congress approved March 3, 1891 (26 Stats., 1095), and the plaintiffs have been deprived of the sale thereof.
    1. The Government received no compensation on account of rights of way granted by this department over lands within the limits of the former Ute Indian Eeservation in Colorado under the act of March 3, 1891, sections 18, 19, and 20, or the act of February 15,1901 (31 Stat., 790).
    2. Any person entering a tract of land to part of which a right of way is attached for a canal, ditch, or reservoir, takes the same subject to such right of way and at the'full area of the subdivision entered and is required to pay therefor, there being no authority to make deduction in such cases.
    
      VI. Prior and ’up to Marcb 2, 1868, the plaintiffs occupied as hunting grounds territory comprising a part of the public domain, a portion of which was embraced within Che-lines of the Louisiana purchase, a portion Avas acquired by the annexation of Texas in 1845, and the balance by cession from Mexico by the treaty of' Guadaloupe Hidalgo of February 2, 1848.
    The lands so occupied as hunting grounds by the plaintiffs included the reservation provided for by the agreement of 1880.
    VII. Of the lands ceded to the United States under the terms of said agreement of June 15, 1880 (21 Stats., 199), the following have been set apart and reserved from the public lands as public reservations under existing laws and proclamations of the President:
    The White River National Forest was established by proclamation of the President October 16, 1891 (27 Stats.,. 993), under the designation “White River Plateau Timber Land Reserve,” by virtue of section 24 of the act of Congress,, approved March 3, 1891, entitled “An act to repeal timber-culture laws, and for other purposes” (26 Stats., 1103). The area of said reservation as originally defined was-930,240 acres.' Subsequently said reservation was modified by proclamation of the President dated June 28, 1902 (32 Stats., 2008), and was then designated the “White River Forest Reserve; ” afterwards said reservation was further modified by proclamation of the President dated May 21,. 1904. (33 Stats., 2361.)
    Deducting the area restored under the act of June 11, 1906 (34 Stats., 233), and areas pending and paid for under the public-land laws, the remaining public land contained in said reservation is found to be 823,733 acres.
    The Battlement National Forest was originally set apart by proclamation of the President dated December 24, 1892 (27 Stats., 1053), and was by that proclamation designated “The Battlement Mesa Forest Reserve,” and by proclama-, tion dated May 16, 1904 (33 Stats., 2359), the same was modified, and said reservation was again modified by proclamation dated June 5, 1905 (34 Stats., 3076). By executive order bearing date July 1, 1908, the said reservation was further modified and the designation thereof was changed to “ Battlement National Forest.”
    Deducting the area restored under the act of June 11, 1906 (34 Stats., 233), and areas pending and paid for under the public-land laws, the remaining public land contained in said reservation is found to be T39,112 acres.
    The Uncompahgre National Forest was originally set, apart by proclamation of the President dated June 14, 1905' (34 Stats., 3109), under the designation “ The Uncompahgre Forest Beserve.” The said reservation was modified by proclamation dated March 1, 1907 (34 Stats., 3282), and designated by executive order dated July 1, 1908, “ Uncompahgre National Forest.”
    Deducting the area restored under the act of June 11,1906 (34 Stats., 233), and areas pending and paid for under the public-land laws, the remaining public land contained in said reservation is found to be 645,124 acres.
    The Holy Cross National Forest was first reserved under the designation “ The Holy Cross Forest Beserve ” by proclamation of the President dated August 25, 1905 (34 Stats., 3144). The reservation was modified by proclamation dated March 1,1907 (34 Stats., 3286), and by executive order dated July 1, 1908 (No. 870), the said reservation was designated the “ Holy Cross National Forest.”
    Deducting the area restored under the act of June 11,1906 (34 Stats., 233), and areas pending and paid for under the public-land láws, the remaining public land contained in said reservation is found to be 289,489 acres.
    The Gunnison National Forest was originally set apart under the designation “ The Gunnison Forest Beserve ” by proclamation of the President dated May 12,1905 (34 Stats., 3025), and by executive order of July 1, 1908 (No. 891), the designation of said reservation was changed to “ Gunnison National Forest.”
    Deducting the area restored under the act of June 11, 1906 (34 Stats., 233), and areas pending and paid for under the public-land laws, the remaining public land contained in said reservation is found to be 520,836 acres.
    
      The Montezuma National Forest was originally established by proclamation of the President dated June 13, 1905 (34 Stats., 3106), and was thereafter modified by proclamation dated March 2,1907 (34 Stats., 3307), and by executive order dated July 1,1908 (No. 889), said reservation was designated “ Montezuma National Forest.”
    Deducting the area restored under the act of June 11, 1906 ,(34 Stats., 233), and areas pending and paid for under the public-land laws, the remaining public land contained in said reservation is found to be 102,595 acres.
    The San Juan National Forest was originally established by proclamation dated Jun,e 3, 1905 (34 Stats., 3070), and was afterwards, on the 2d of March, 1907, modified by proclamation (34 Stats., 3308), and, on July 1,1908, by executive order (No. 886) the same was designated “ San Juan National Forest.”
    Deducting the area restored under the act of June 11, 1906 (34 Stats., 233), and areas pending and paid for under the public-land laws, the remaining public land contained in said reservation is found to be 49,594- acres.
    The La Sal National Forest was created by proclamation dated January 25, 1906 (34 Stats., 3190).
    Deducting the area restored under the act of June 11, 1906 (34 Stats., 233), and areas pending and paid for under the public-land laws, the remaining public land contained in said reservation is found to be 28,775 acres, making a total of 3,199,258 acres of the lands ceded to the United States by the agreement of June 15, 1880, set apart and reserved as public reservations.
    VIII. The value of all lands ceded by the plaintiff Indians which have been set apart and reserved from the public lands as public reservation or for other public uses under existing laws and proclamations of the President is found to be $3,999,072.50.
    Of the lands ceded to the United States by plaintiffs under the terms of said agreement of June 15, 1880 (21 Stats., 199), 1,310,686.38 acres have been sold and disposed of between the 15th day of June, 1880, and the 30th day of June, 1908, for the sum of $2,204,694.71.
    
      IX. In accordance with the provisions of the act of June 15, 1880, and the jurisdictional act, March 3, 1909, under which this suit is brought, the court finds the following sums to have been expended by the United States to or for the benefit of the plaintiffs, and states the account between the United States and the plaintiffs as follows:
    CREDITS.
    To proceeds of all cash sales of lands ceded by the • plaintiffs to the United States under the act of June 15, 1880, up to July 1, 1908_$2, 204, 694. 71
    To the value of all ceded lands at $1.25 per acre, set apart and reserved from the public lands as public reservations or for other public use under existing laws and proclamations of the President_ 3, 999, 072. 50
    Total_ 6, 203, 767.21
    DEBITS.
    To annuity of $50,000 per annum under section 5, act of June 15, 1880, to July 1, 1908_$1, 390, 239. 75
    To allotments in severalty accruing to White River and Uncompahgre Utes, at $1.25 per acre- 144, 460. 04
    To salaries paid to members of Ute tribe under section 6, act of June 15, 1880- 39, 687. 94
    To payment of expenditures of commissioners, as authorized and directed by section 9, act of June 15, 1880, and supplementary acts of March 3, 1881 (21 Stats., 453), August 5, 1882 ( 22 Stats., 267), and August 7, 1882 (22 Stats., 327) _ 55,340.94
    To cost of removal and settlement of Utes, surveying lands, building houses, establishing schools, building mills and agency buildings, purchasing stock, agricultural implements, etc., under section 9, act of June 15, 1880_ 349, 351.14
    To per capita payments, section 2, of agreement of 1880, and section 9, act of June 15, 1880- 15, 000. 00
    To payment of appraised value of individual improvements, section 9, act of June 15, 1880- 10, 900.00
    To care and support of Utes in Colorado for balance of fiscal year_ 12, 000. 00
    To cost of surveys of all lands within thp boundaries of plaintiffs’ former reservation in Colorado, to July 1,1908_ 644,251.00
    To probable cost of survey of unsurveyed area- 133, 925.00
    __ 2,795,155.81
    
      At no time before the passage of the jurisdictional act did the cash receipts for lands sold within the reservation exceed the amount expended by the United States to or for the benefit of the plaintiffs under the act of 1880.
    X. There has also been expended by the United States to or for the benefit of the plaintiffs under the treaty of 1863 (13 Stats., 673) the sum of $239,335.66.
    Under the treaty of March 2, 1868 (15 Stats., 619), there has been expended by the United States for the benefit of the plaintiffs the following sums:
    To amount appropriated and expended under Article XI of tlie treaty of Biarch 2, 1868 (15 Stat. L., 619), for clothing, blankets, and other articles of utility for Utes from April 10, 1869, to July 1, 1898_ $855, 516. 91
    To amount appropriated and expended under Article XII, same treaty, for food for Indians from April 10, 1869, to June 80, 1908_ 1, 086, 924. 62
    To amount appropriated and expended under Article XIII, same treaty, for cattle for Indians_ 89, 536. 69
    To amount appropriated and expended under act of August 15, 1894 ( 28 Stat. L., 337), for expenses of commissioners to allot lands to the Uncompahgre Utes--- 16,128. 25
    To amount appropriated and expended for expenses of Ute Commission, act of January 28, 1898 (30 Stat. L., 238)_$12,617.56
    To amount expended from other appropriations in making allotments to Uncom-pahgres- 4, 259.87
    16, 877.43
    Less amount included in expenditures of funds appropriated by the act of August 15, 1S94, above mentioned_ 2, 45S. 70
    Actually expended_ 14, 418. 73
    To amount appropriated by act of May 27, 1902 (32 Stats., 263), for payment to the Uintah and White River Utes- 70,064.48
    XI. The area of the territory described in and set apart for the plaintiffs under section 2 of the treaty of 1868 comprised 14,784,000 acres of land.
    The area ceded by the plaintiffs to the United States under the agreement of September 3, 1873, ratified by the act of April 29, 1874 (18 Stats., 36), contained 3,059,200 acres of land.
    The area of land disposed of by the United States for cash and set apart and reserved from the public lands as public reservations or for other public uses under existing laws and proclamations of the President is 4,509,944.38 acres, leaving a balance still undisposed of on July 1, 1908, of 7,569,144.38 acres.
    
      Mr. J. M. Vale and Mr. Marion Butter for the claimants.
    
      Messrs. C. C. Clements, James M. E. O^Grady, Samuel J. Crawford, Richard F. Pettigrew, Melvin Grigsby, Adair Wilson, William C. Shelley, and Kie Oldham were on the brief.
    
      Mr. Frederich De C. Faust (with whom was Mr. Assistant Attorney General John Q. Thompson) for the defendants.
   BARNEY, J.,

delivered the opinion of the court.

The plaintiffs are ten tribes of Indians, known as the Confederated Bands of the Ute Indians (referred to hereinafter as the Ute Indians), who sue herein for an accounting to them under the agreement made by them with the defendant by an act of Congress approved June 15, 1880 (21 Stats., 199).

The same claim, known as Congressional case No. 11248, was referred to this court by resolution of the. Senate under the fourteenth section of the Tucker Act,, but was dismissed on defendant’s motion in March, 1908, for want of jurisdiction. (43 C. Cls. R., 260.)

The case is now here by virtue of a provision in the Indian appropriations act approved March 3, 1909 (35 Stats., 788, 789), conferring jurisdiction on this court to adjudicate the claim to final judgment, with right of appeal as in other cases, with a direction to allow certain set-offs and counterclaims therein mentioned. A consolidation is directed with the congressional case above mentioned, still pending on a motion for a new trial,’ for the purpose of using the evidence therein adduced at this trial. The jurisdictional proviso is given in full as Finding II in the findings of fact, supra, and will not be here repeated.

The territory within which the lands in question are located, and out of which the Territories of New Mexico, Utah, and Colorado were subsequently created, was mostly acquired from Mexico by the treaty of Guadalupe Hidalgo, concluded February 2,1848. (9 Stat., 922, 930.) This treaty contained no provision affecting or recognizing the rights of the Indian tribes to any of the lands within the cession, unless such recognition can be gathered from the opening words of the eleventh article of that treaty, which are: “ Considering that a great part of the territories which, by the present treaty, are to be comprehended for the future within the limits of the United States, is now occupied by savage tribes,” etc. It should be said, however, that a portion at least of the lands covered by the treaties between the Utes and the United States, hereinafter mentioned, were acquired under the Louisiana Purchase or by the annexation of Texas.

December 30, 1849, the first treaty was made with the “Utah” Indians (doubtless the claimants), which involved no cession of lands and did not set apart any reservation to the Indians. (9 Stats., 984.) It did, however, clearly recognize some rights of the Indians to the occupation of certain lands. For instance, Article V of that treaty is as follows:

“ V. The people of the United States, and all others in amity with the United States, shall have free passage through the territory of said Utahs, under such rules and regulations as may be adopted by authority of said States.”

Expressions of similar import are used in the seventh article of the same treaty.

September 9, 1850, a territorial government for Utah was established (9 Stats., 453), including within its boundaries that part of the present State of Colorado west of the summit of the Kocky Mountains. February 28, 1861, the Territory of Colorado was organized (12 Stats., 172).

On October 7, 1863, a treaty with the Tabeguache band of the plaintiff Indians was concluded and proclaimed December 14, 1864 (13 Stats., 673). By this treaty when first signed the Indians asserted the exclusive right to certain lands therein described, but all assertions of that character were striken out by the Senate before ratification, and the treaty was further amended by adding the following provision:

“ Nothing contained in this treaty shall be construed or taken to admit on the part of the United States any other or greater title or interest in the lands above excepted and reserved in said tribe or band of Indians than existed in them upon the acquisition of said territory from Mexico by the laws thereof.”

By Article II of the treaty as amended by the Senate the Tabeguache band of Utes ceded and relinquished to the United States all “ claim, right, title, and interest in and to any and all lands within the territory of the United States,” excepting certain lands described which are reserved to them “ as their hunting grounds.”

Provision was made in this treaty for payment to the Indians of an annuity for ten years, $10,000 in goods and $10,000 in provisions. Provision was also made for the allowance to them of certain agricultural stock and for the establishment of a blacksmith shop for their benefit upon the lands thus reserved.

March 2, 1868 (15 Stat., 619), a treaty was concluded at Washington with the plaintiff Indians, including the Tabe-guache band, the only Indian party to the treaty of 1863 just mentioned. This treaty reaffirmed the provisions of the treaty of 1863, and, in fact, so far at least as the Tabeguache band was concerned, superseded it.

Article II of this treaty set apart a district within what is now the State of Colorado, and embracing about 15,000,-000 acres of land, as a reservation for the plaintiff Indians and such other friendly tribes and individual Indians as they, with the consent of the United States, might be willing to admit among them for their “ absolute use and occupation.” Article III of the treaty is as follows:

“Article III. It is further agreed by the Indians parties hereto, that henceforth they will and do hereby relinquish all claims and rights in and to any portion of the United States or Territories, except such as are embraced in the limits defined in the preceding article-.”

The treaty also provided for the establishment of two agencies on said reservation; for the construction thereon by the United States of schoolhouses and other buildings; for the selection of tracts of land thereon not exceeding 160 acres in extent by Indian heads of families desirous of commencing farming, to be held in the exclusive possession of the persons selecting it and his family so long as cultivation should continue, and 80 acres to persons not head of families; for supplying seeds and agricultural implements to the Indians, and for instructions by a practical farmer; for the establishment of blacksmith shops for their benefit; also for the establishment of schools, by building schoolhouses, and supplying competent teachers.

Provision was also made for payment to the Indians of annuities, (1) not to exceed $30,000 per annum for clothing, blankets, etc., (2) and not to exceed $80,000 for food. For the purpose of inducing the Indians to adopt the habits of civilized life and becoming self-sustaining the Secretary of the Interior was authorized to expend the sum of $45,000 for them for the first year after the treaty.

Article XYI of said treaty was as follows:

“Article XVI. No treaty for the cession of any portion or part of the reservation herein described, which may be held in common, shall be of any validity or force as against the said Indians, unless executed and signed by at least three-fourths of all the adult male Indians occupying or interested in the same; and no cession by the tribe shall be understood or construed in such manner as to deprive the tribe, without his consent any individual member of the tribe of his right to any tract of land selected by him, as provided in article seven of this treaty.”

By act of Congress April 23, 1872 (17 Stats., 55), the Secretary of the Interior was authorized to enter into negotiations with the plaintiff Indians for the purchase from them of the south part of said reservation, a district estimated to contain about 3,450,000 acres. Commissioners were appointed for that purpose and they entered into an agreement with the Indians which was ratified by Congress April 29, 1874 (18 Stats., 36), by the terms of which the plaintiff Indians surrendered all right, title, and interest to said 3,500,000-acre tract of land, in consideration of which the Indians were to be paid a perpetual annuity of $25,000. The area of the remaining reservation as thus diminished comprised about 11,724,800 acres of land.

In the late seventies the advance guard of civilization seeking new homes in the far West began to press upon the borders of this Ute Reservation, and in 1878 Congress, through a commission appointed for that purpose, made an effort to purchase it from the Utes and to secure their removal to another locality, but without success.

AGREEMENT OE JUNE 15, 1880.

[21 Stats., 199.]

During the winter of 1879-80 a delegation of the chiefs and headmen of the plaintiff Indians visited the city of Washington, and on March 6, 1880, entered into an agreement with the United States whereby they undertook to use their best endeavors with their people to procure their consent to cede to the United States the remainder of the reservation set apart to them by the treaty of 1868. This agreement was afterwards duly assented to by the plaintiff Indians and thereafter ratified by Congress and embraced in the act of Congress of June 15, 1880 (21 Stats., 199). Some amendments to the agreement were proposed by Congress in tlie act referred to, and the agreement as thus amended was afterwards consented to by three-fourths of the adult male plaintiff Indians as required by the treaty of 1868 and by section 10 of the act containing the agreement.

By that agreement the plaintiffs ceded to the United States the entire remainder of their reservation in the State of Colorado reserved to them under the treaty of November 6,1868, containing approximately 11,784,800 acres of land, and agreed to remove, settle upon, and accept individual allotments of unoccupied agricultural and grazing lands' in certain designated localities to be selected for them by a commission authorized by the act, which lands should be free from taxation and not subject to alienation for a period of twenty-five years or longer in the discretion of the President.

It was further agreed by section 3 of said act that all lands within the ceded limits not allotted in severalty to the plaintiffs should be deemed to be public lands of the United States subject to disposal under the public-land laws for cash only in accordance with existing' law at the same price and on the same terms as other lands of like character, and contained the following proviso:

“ That none of said lands, whether mineral or otherwise, shall be liable to entry and settlement under the provisions, of the homestead law; but shall be subject to cash entry only in accordance with existing law; and when sold the proceeds of said sale shall be first sacredly applied to reimbursing the United States for all sums paid out or set apart under this act by the Government for the benefit of said Indians, and then to be applied in payment for the lands, at one dollar and twenty-five cents per acre, which may be ceded to them by the United States outside of their reservation in pursuance of this agreement. And the remainder, if any, shall be deposited in the Treasury as now provided by law for the benefit of the said Indians, in the proportion hereinbefore stated, and the interest thereon shall be distributed annually to them in the same manner as the funds provided for in this act.”

The act provided for the appointment of commissioners, for the purpose of carrying out the contract by selecting and allotting lands to the Indians, locating agencies, furnishing estimates of the number of schoolhouses and teachers required, etc. It also directed the Secretary of the Treasury to set apart and hold as a perpetual trust fund for the benefit of the plaintiffs an amount of money sufficient at 4 per cent to produce annually $50,000, to be paid to them per capita in cash annually as provided in said agreement. It. provided for salaries of certain members of the Ute Indians under existing treaty stipulations for a period of ten years, and authorized the distribution of $4,000 per annum for the. same term by the President to such of said Indians as proved themselves worthy of such recognition.

The act made appropriations for the purpose of carrying-the agreement into effect, (1) for the payment of the commissioners, $25,000; (2) for cost of removal of the Utes, surveying their lands, building houses, establishing schools, building mills, purchasing stock, etc., as provided in said .agreement, $350,000; (3) $15,000 in addition to the $60,000 then due and provided for to be paid to them per capita; (4) for the payment of the appraised value of individual improvements within the reservation as provided in the agreement, $20,000; (5) for the care and support of the Utes for the balance of the then current fiscal year, $12,000.

In compliance with the provisions of the act all of the plaintiffs were removed to Utah, and allotments were there made to them, except the southern Utes who remained upon the reservation and received allotments along and within its southern border and partly within New ’Mexico. The sum total of lands thus allotted was 115,568.03 acres.

With this preliminary statement of the history of the transactions between the United States and the plaintiff Indians, we come to the discussion of the sum due said Indians under the agreement of 1880 in the light of the directions contained in the jurisdiction act under which this suit comes to this court.

I. We will first take up the sums for which the plaintiffs should be credited. As some date must be taken up to which this account must be stated, we have followed both parties in this suit and taken June 30,1908.

The findings show, and that fact is undisputed, that up to said date the defendants had received $2,204,694.71 as cash proceeds for lands sold located within the Ute Reservation, and it is not and can not be denied that the plaintiffs should be credited with that sum. It is contended, however, by the plaintiffs that they should be credited in addition thereto with interest compounded semiannually upon the amount of the quarterly sales of said lands since 1880, which interest would amount to $2,444,779.95 more. We will leave this question of interest to be discussed hereafter in connection with the credits to be allowed the defendants.

The jurisdictional act provides that this court in this suit is “ to hear, determine, and render final judgment, with right of appeal as in other cases, on the claims and rights of said Indians under said agreement [agxeement of 1880, supra],, including the value of all lands ceded by tbe said Indians which have been set apart and reserved from the public lands as public reservations or for other public uses under existing laws and proclamations of the President, as if disposed of under the public-land laws of the United States,” etc. Thus in making up this account we are to credit the plaintiffs with the value of the forest reservations set apart out of the Ute Reservation. The areas so set apart, less such portions of the same as have been disposed of by the defendants and for which credit has been given to the plaintiffs in the first item, embrace 3,199,258 acres. The value to be set upon this land' is necessarily somewhat problematical, but that duty has been imposed upon this court, and with the best light obtainable must be done.

Section 3 of the act of 1880 provides that all the ceded lands

“ shall be held and deemed to be public lands of the United States and subject to disposal under the laws providing for the disposal of the public lands, at the same price and on the same terms as other lands of like character, except as provided in this act: Provided, That none of said lands, whether mineral or otherwise, shall be liable to entry and settlement under the provisions of the homestead law, but shall be subject to cash entry only in accordance with existing law.”

The act of July 28, 1882 (22 Stats., 178), restored the Ute Reservation to the public domain with the following proviso:

“And further provided, That none of said lands shall be disposed of for any other than cash, nor for a less price than one dollar and twenty-five cents per acre.”

The act of April 24,1820 (3 Stats., 566), now section 2357, Revised Statutes, fixes the minimum price at $1.25 per acre for all public lands offered at public or private sale for cash in the following terms:

“ The price at which the public lands are offered for sale shall be one dollar and twenty-five cents an acre, and at every public sale the highest bidder, who makes payment as provided in the preceding section, shall be the purchaser; but no lands shall be sold, either at public or private sale, for a less price than one dollar and twenty-five cents an acre; and all the public lands which are hereafter offered at public sale according to law, and remain unsold at the close of such public sales, shall be subject to be sold at private sale, by-entry at the land office at one dollar and twenty-five cents an acre, to be paid at the time of making such entry.”

A similar question was involved in an appeal from .this court to the Supreme Court in the case of United States v. Blachfeather (155 U. S., 180; 28 C. C., 447). In commenting upon the obligation of the United States to expose the lands in question at public sale, Mr. Justice Brown, in delivering the opinion of the court, said:

“ In the absence of any proof of the actual value of these lands at this time, there would seem to be no method of 1 estimation except by taking the price at which public lands were subject to be sold at private sale, namely, $1.25 per acre. Not only is there some presumption that the Grovernrnent would not sell them for less than they were worth, but the very fact that at that time all public lands were subject to entry at $1.25 per acre would render it impossible to sell them at a greater price unless by reason of their peculiar location, abundant timber, or extraordinary fertility they were exceptionally valuable. (Id., 191.)”

The average price at which the lands within the Ute Reservation were sold between the date of the agreement (1880) and June 30, 1908, was $1.68 per acre. Presumably the choicest lands were selected by the purchasers. The forest reservations were set apart at different dates between 1891 and 1905. While it is doubtless true that considerable of the land within these forest reservations is quite valuable, cn the other hand, the official reports show, and it is a fact so well known as to come within judicial notice, that considerable portions of them are valueless and can never be sold at any price.

In view, therefore, of the law and the facts as stated, we have found the value of the lands thus set apart in forest reservations to be $1.25 per acre, amounting to $3,835,323.75.

II. We next come to consider the sums to be charged ■ against the plaintiffs and set off against the amount credited to them in this suit. Upon that subject the jurisdictional act gives this court the following direction:

“ * * * and the court shall set off against any sum found due said Indians the amount paid to them under the fifth section of said act of June fifteenth, eighteen hundred and eighty, being fifty thousand dollars per annum up to the date of rendition of final judgment in this cause; also any other sum or sums that shall be found to be properly chargeable under the terms of said agreement, and also any sum or sums paid by the United States to or for the benefit of said Indians, whether as a gratuity or otherwise, except such sums as have been paid for a specific purpose and an adequate consideration, * *

We are first specifically directed to charge to the plaintiffs the annuities which they have received under the agreement of 1880, $50,000 per annum, amounting to $1,350,000, and • about this sum there is and can be no dispute; in fact, the agreement itself in explicit terms so provides. . “Also any other sum or sums that shall be found to be properly chargeable under the terms of said agreement [1880].” Under this direction it should be borne in mind that by the terms of said agreement the plaintiffs were to receive all of the proceeds of said reservation, with the provision, however, that “ when sold the proceeds of said sale shall be first sacredly applied to reimbursing the United States for all sums paid out or set apart by the Government for the benefit of said Indians,” etc. It will thus be seen that the transaction was of no benefit to the United States, except the indirect benefit received by opening up to civilization a desirable territory. In view of this fact we think the plaintiffs are “ properly chargeable” (1) with the allotments received outside the reservation; (2) the cost of the survey of the reservation, establishing schools, building houses, etc.; (3) additional per capita payments and the amount expended for the support of the Utes for the balance of the fiscal year, as provided and appropriated for in section 9, as well as salaries paid to selected individual Utes, as provided in section 6; (4) and also the expenses incurred by the United States in negotiating the agreements. In general, for the reasons stated, we think the plaintiffs should be charged with all the benefits of every name and nature which they have received under the agreement of 1880.

We do not think, however, they are properly chargeable with the cost of the survey of the lands allotted to them outside of the reservation under the agreement. They have been charged for these lands at the price of $1.25 per acre, and that should include the cost of survey, the same as to other purchasers of lands within the public domain.

We are further directed, in addition to moneys paid under the agreement of 1880, to charge the plaintiffs with “ any sum or sums paid by the United States to or for the benefit of said Indians, whether as a gratuity or otherwise, except such sums as have been paid for a specific purpose and an adequate consideration.”

It is contended by the defendants that under this instruction we should charge the plaintiffs with all such sums as have been paid to them under the treaties of 1863 and 1868, on the ground that no “ adequate consideration ” was ever received by the defendants for moneys so expended. For this contention much reliance is placed upop. the decision of this court in the case of Hayt v. United States (38 C. Cls. R., 455), wherein it was decided that the territory ceded by Mexico to the United States by the treaty of Guadaloupe Hidalgo was not “ Indian country,” and it is claimed that all of the lands involved in the treaties of 1863 and 1868 were within that cession.

While it may be true that the Indian title of the plaintiffs to any territory prior to the treaty of 1863 was not such a title as the defendants would recognize, yet the plaintiffs were located within this territory and had the usual claim of occupancy of other Indians. Their claim was considered of such importance that the defendants, during the year following the Guadaloupe Hidalgo treaty, entered into a treaty with them and secured from them a concession for the right of free passage through their territory. (9 Stats., 984.) By the treaty of 1863 (13 Stats., 673) the defendants considered these claims to territorial occupancy of sufficient importance to obtain from them a cession of all “ claim, title, etc., to lands within the territory of the United States,” excepting certain lands which were set apart to them as their hunting grounds. By the treaty of 1868 (15 Stats., 619) the reservation in question was set apart to the plaintiffs, and by the third article of the treaty the plaintiffs relinquished “ all claims and rights in and to any portion of the United States or territories except ” such reservation. Even if we may admit that they had no valid title to any lands, yet they claimed some title and honestly claimed it, and the yielding of such a claim to a party who wishes to purchase it is a good consideration.

In the case of Sykes v. Chadwick (18 Wall., 141) the Supreme Court, in discussing the sufficiency of consideration, said:

“ If any release is deemed requisite' to confirm the title of lands with which one has been connected, though by a proper construction of the law he has no interest in them whatever, still such release will be a good consideration for a promise or for the payment of money.”

Congress, from time to time, made appropriations of money to the plaintiffs which in terms were made in pursuance of the treaties of 1863 and 1868 (13 Stats., 560; 17 id., 457). After such treaty stipulations with the plaintiffs and after such recognition of their validity for more than forty years we do not think the defendants can successfully set up the claim-that these payments were made without adequate consideration. Certainly no such claim would ever be made against any people other than Indians. We do not think, therefore, that the plaintiffs are properly chargeable with any payments made to them under and pursuant to the treaties of 1863 and 1868.

We are also asked to charge the plaintiffs with $70,064.18, appropriated by act of Congress May 27, 1902 (32 Stats., 263), to be paid to the Uinta and White River Utes. This appears to relate to an entirely different transaction than the one under consideration. At the time of this appropriation the Uinta and White River Utes were located upon a reservation in Utah, and the portions of those bands to which this appropriation relates were located there prior to the agreement of 18801, and were not parties to the said agreement. The act referred to, supra, provided for the restoration to the public domain of all the lands in this reservation not to be allotted to these Uinta and White River Utes, and that the proceeds of such lands should be first applied to the reimbursement of the United States for any moneys advanced to said Indians to carry into effect the provisions of said law; and said sum of $70,064.78 was appropriated to be paid said Indians for relinquishing their title to such unallotted lands, the same to be reimbursed in the manner before stated. This appears to be a matter for future adjustment between said Uinta and White River Utes and the United States, and said sum is disallowed as a set-off in this suit.

III. We now come to the question of interest to be allowed to the, plaintiffs upon the sums found due to them in the findings. We will first take up the question of interest upon the value of the lands set apart in forest reservations.

By the terms of the agreement of 1880 no interest was to be paid except upon the proceeds of cash sales within the reservation. It was unquestionably within the political power of Congress to authorize the withdrawal of these forest reserves from the market indefinitely, or for such periods as it should see fit, notwithstanding the agreement, and thus deprive the Utes of the proceeds of sales which otherwise would have been made, and interest upon the same. Having done so, their claim for the proceeds of lands deemed to have been sold by the setting apart of the forest reserves, and interest thereon, must be derived entirely from the language of the jurisdictional act.

The jurisdictional act directs this court to hear, determine, and render final judgment on the claims and rights of the Utes under the agreement of 1880, including the value of all lands—

“ Which have been set apart and reserved from the public lands or public reservations or for public uses under existing la,ws and proclamations of the President, as if disposed of under the public-land laws of the United States, as provided by said agreement.”

Section 1091 of the Revised Statutes provides:

“No interest shall be allowed on any claim up to the time of the rendition of judgment thereon by the Court of Claims, unless upon a contract expressly stipulating for the payment of interest.”

We are told to render judgment for the value of these lands, “ as if disposed of under the public-land laws of the United States, as provided by said agreement.” The agreement referred to contained directions as to the manner in which these lands were to be disposed of, i. e., they were to be surveyed, were not to be liable to entry and settlement under the provisions of the homestead law, but were to be sold for cash only. Hence the direction that we are to render judgment for the value of these lands as if disposed of “ as provided by said agreement,” evidently means that we are to regard them as having been sold for cash at the date of entry of judgment, and this sum is to be placed to the credit of the plaintiffs. If Congress had intended that interest should be allowed upon this sum it would have so provided, and without such specific provision such intention can not be inferred. When we remember, as already stated, that it was within the power of Congress to have kept these lands out of the market indefinitely, this conclusion will appear all the more clear.

In considering this question it should also be borne in mind that if these lands had never been withdrawn from the market, but a small percentage of them would have been sold before the passage of the jurisdictional act. This is shown by the fact that in the twenty-four years elapsing between 1880 and 1904, after which date the greater number of these reserves were created, less than 9 per cent of the total area of the reservation had been sold for cash. If Congress had intended to have this court consider the whole area of these forest reserves to have been sold as of the date when withdrawn from the market and to place their value ($3,835,323.75) to the credit of the plaintiffs as of such dates, it would have said so in unmistakable terms. In making up this account, therefore, no interest has been allowed upon the value given to the lands within the forest reservations.

As before stated, it is contended by the plaintiffs that they should be allowed compound interest upon the separate sums which appear quarterly to have been received by the defendants for the lands sold within the reservation from the date ■of receipt, and also upon the value of the lands withdrawn from sale and set apart in the forest reservations, reckoned from the time of such withdrawal, without allowing the defendants any credit for annuities and other sums paid by the defendants under the agreement of 1880. We have already disposed of the question of interest upon the value of the lands set apart in forest reservations and that question requires no further consideration here.

The jurisdictional act provides:

“ That to carry into effect the agreement between the Confederated Bands of Ute Indians of Colorado and the United States, ratified by the act of Congress approved June fifteenth, eighteen hundred and eighty, being ‘An act to accept and ratify the agreement submitted by the Confederated Bands of Ute Indians in Colorado for the sale of tlieir reservation in said State, and for other purposes, and to make the necessary appropriations for carrying out the same ’ (Twenty-first Statutes, page one hundred and ninety-nine), jurisdiction is hereby conferred upon the Court of Claims to hear, determine, and render final judgment, with right of appeal as in other cases, on the claims and rights of said Indians under said agreement,” etc.

Hence we are to find what sum is legally due to the plaintiffs under said agreement, subject only to such modifications as were made further on in the act as to credits to be allowed the defendants. The agreement of 1880 provides that after the United States shall have been reimbursed “ for all sums paid out or set apart ” under the act, “ the remainder, if any, shall be deposited in the Treasury * * * and the interest thereon shall be distributed annually to them in the same manner as the funds provided for in this act.”

As to the contention regarding interest, that no credit should be allowed the defendants under the agreement of 1880, as we interpret the jurisdictional act, it forbids this method of computing interest. We are instructed to set off against any sum found due the Indians certain payments made to them by the defendants. When these sums are credited to the defendants, they, obviously, should be credited as of the date when paid. It appears from the account, as stated in Finding IX, that at no time before the passage of the .jurisdictional act did the cash receipts of the defendants for lands sold within the reservation exceed the amount paid out for the benefit of the claimants under the act of 1880. Hence, having decided that the claimants are not entitled under the jurisdictional act to any interest upon the value of the lands withdrawn from sale and set apart in forest reservations, no interest whatever appears to be due to the claimants. This being our conclusion, the discussion of the question of compound interest, as contended for by the claimants, is somewhat academical, but will be briefly considered.

No interest, either simple or compound, can be collected from a sovereign except by its consent. (United States v. North Carolina, 136 U. S., 211.) In the case at bar the sovereign has agreed to pay interest, and that means simple interest only. But the plaintiffs seek to charge the defendants with compound interest in this case on the ground that the money so received constituted a trust fund, and that in such cases where the fund has been improperly withheld, the trustee is penalized with compound interest. It is elementary as a general proposition, in the absence of a contract to that effect, that interest upon interest' is not recoverable for the detention of money, and that is a general rule either at law or equity. (Perley on Law of Interest, 159, 160; In re Ward's estate, 73 Mich., 220, 228.) It is only where a trustee, guardian, or executor has acted in bad faith, in abuse of his trust or has been guilty of such 'gross negligence as to be evidence of a corrupt intention, that compound interest will be charged against him (Barney v. Saunders, 16 How., 535; Perrin v. Leper, 72 Mich., 446; Vaughan v. Bibb, 46 Ala., 153; Smith v. Kennard, 38 Ala., 695).

The Government only acts through its officers and agents' and thus in law can never be guilty of fraud, bad faith, or negligence; hence it can never be penalized by being charged compound interest.

As already stated, the account herein between the plaintiffs and defendants, as directed to be made under the jurisdictional act, is stated up to June 30, 1908, as that is the latest .date to which full returns have been made by the proper government officials. The jurisdictional act seems to contemplate that this account should be stated up to the date of the entry of judgment herein; hence, before entry of judgment further returns will be necessary. This supplemental account will be made in accordance with this opinion and will be a mere matter of computation.

Judgment therefore will be entered herein for the claimants for the sum of $3,408,611.40, with the modification hereafter to be made as above indicated.  