
    MEDAWAKANTON AND WAHPAKOOTA BANDS OF SIOUX INDIANS, OTHERWISE KNOWN AS SANTEE SIOUX INDIANS, v. THE UNITED STATES.
    [No. 33728.
    Decided June 5, 1922.]
    
      On the Proofs.
    
    
      Jurisdictional act; construction; perpetual annuity; debits. — The first proviso in the jurisdictional act declares “ that the court in. renderiug judgment shall ascertain and include therein the amount oí accrued annuities under the treaty of September 29J. 1837, up to the date of rendition of judgment, and shall deter* mine and include the present value of the same, not including interest, and the capital sum of said annuity which shall he in lieu of said perpetual annuity granted in said treaty,” and “ shall ascertain and set off against any amount found due under said treaties all moneys paid to said Indians or expended on their account by the United States since the treaties were abrogated by the act of February 16, 1863.” The second proviso declares “ that the treaty of April 28, 1868, shall not be a bar to recovery, but all equities and benefits received thereunder by the Santee Sioux Indians shall be taken into consideration in the determination of the amount of recovery.” Held, that the Indians. should be credited with the accrued annuities under the treaty of September 29, 1837, up to the date of judgment, and the capital sum of $300,000 as the present value of the perpetual annuities, and should be debited with all moneys paid to them or on their account both during the period between the date of the forfeiture act and the date of ' the treaty of 1868 and thereafter.
    
      Removal of Indians; charge for reservation. — Where the presence of Indians on a certain reservation becomes undesirable to the Government, and Congress passes an act providing for the sale of su.ch reservation and the removal of said Indians and directs the President to set apart for them another reservation where they may engage in agriculture, such legislation is for the benefit of the United States and the value of said reserva- ■ tion should not be charged against the Indians.
    
      Debts of Indians; payment by Government. — Where a certain part of the consideration for the sale of Indian lands by the terms of a treaty is made applicable for the payment of the debts of the Indians, and instead of being used for that purpose is diverted by the Government and Congress passes an act in which the United States assumes the obligation and appropriates the same amount for the payment of such debts, it should not be charged against the Indians.
    
      
      The Reporter's statement of the case:
    
      Mr. Marion Butler for the plaintiffs. Butler & Vale were on the briefs.
    
      Mr. George T. Stormont, with whom was Mr. Assistant Attorney General Robert II. Lovett, for the defendant.
    The following are the facts of the case as found by the court:
    I. This suit was filed on March 6, 1917, under a special act of Congress approved March 4-, 1917, entitled “An act for the restoration of annuities to the Medawakanton and Wahpakoota (Santee) Sioux Indians, declared forfeited by the act of February 16,1868,” 39 Stat. 1195, which reads:
    “ That jurisdiction be, and hereby is, conferred upon the Court of Claims to hear, determine, and render final judgment for any balance that may be found due the Medawa-kanton and Wahpakoota Bands of Sioux Indians, otherwise known as Santee Sioux Indians, with right of appeal as in other cases, for any annuities that may be ascertained to be due to the said bands of Indians under and by virtue of the treaties between said bands and the United States, dated September twenty-ninth, eighteen hundred and thirty-seven (Seventh Statutes at Large, page five hundred and thirty-eight), and August fifth, eighteen hundred and fifty-one (Tenth Statues at Large, page nine hundred and fifty-four), as if the act of forfeiture of the annuities of said bands approved February sixteenth, eighteen hundred and sixty-three, had not been passed: Provided, That the court in rendering judgment shall ascertain and include therein the amount of accrued annuities under the treaty of September twenty-ninth, eighteen hundred and thirty-seven, up to the date of rendition of judgment, and shall determine and include the present value of the same, not including interest, and the capital sum of said annuity which shall be in lieu of said perpetual annuity granted in said treaty; and to ascertain and set off against any amount found due under said treaties all moneys paid to said Indians or expended on their account by the Government of the United States since the treaties were abrogated by the act of February sixteenth, eighteen hundred and sixty-three: Provided, That the treaty of April twenty-eight, eighteen hundred and sixty-eight, shall not be a bar to recovery, but all equities and benefits received thereunder by the Santee Sioux Indians shall be taken into consideration in the determination of the amount of recovery. Upon the rendition of such judgment and in conformity therewith the Secretary of the Interior is hereby directed to ascertain and determine which of said Indians now living took part in said outbreak and to prepare a roll of the persons entitled to share in said judgment by placing thereon the names of all living members of said bands residing in the United States at the time of the passage of this act, excluding therefrom only the names of those found to have personally participated in the outbreak; and he is directed to distribute the proceeds of such judgment, except as hereinafter provided, per capita, to the persons borne on the said roll.
    “ Proceedings shall be commenced by petition verified by or under authority of one of the attorneys who have been heretofore employed by said bands of Indians to prosecute their claims, under a contract which has been heretofore approved by the Commissioner of Indian Affairs and the Secretary of the Interior as provided by law, upon information and belief as to the existence of the facts stated in such petition, and no other verification shall be necessary. Upon final determination of the cause the Court of Claims shall decree such fees as the court shall find to be reasonable upon a quantum meruit for services performed or to be performed, to be paid to the attorney or attorneys so employed by the said bands of Indians and their associates, and the same shall be paid by the Secretary of the Treasury out of the proceeds of the fund arising from said judgment in favor of said bands of Indians when an appropriation therefor shall have been made by Congress: Provided, That in no case shall the fees decreed by the court amount in the aggregate to more than ten per centum of the amount of the judgment recovered, and in no event shall the aggregate amount exceed $50,000.”
    II. Prior to August 5,1851, the Minnesota Sioux, consisting of four bands known as the Medawakanton, Wahpa-koota, Sisseton, and Wahpeton Bands, lived along the Mississippi River, the bulk of them on the west side but some of the Medawakanton and Wahpakoota Bands lived on the east side. These Indians at a much earlier period had their homes around Mille Lac, where they were encountered by the first white explorers who penetrated those regions. The four bands ranged westward, the Sisseton and Wahpeton Bands beyond the Minnesota line into the Territory of Dakota, and the Medawakanton and Wahpakoota Bands to the Big Sioux River, the dividing line between them and the Yankton Sioux.
    
      These Indians were originally all Medawakantons, but later split up into four bonds. The Sissetons and Wahpe-tons lived and hunted together and the Medawakantons and Wahpakootas lived together practically as one band.
    The Minnesota Sioux were known to the Government as the Sioux of the Mississippi, to distinguish them from the Teton, Yankton, and Yanktonais Sioux, who lived along the Missouri Eiver and were known as the 'Sioux of the Missouri.
    The Medawakanton Indians when living on Mille Lac were designated Isanyati by the early explorers, derived from the Indian name of that lake, and all of the Minnesota Sioux were often designated as Isanyati by the Sioux of the Missouri. The name was later corrupted into “ Santee ” and applied exclusively to the Medawakantons and Wah-pakootas.
    III. On September 29,1837, 7 Stat. 538, a treaty was made by the United States with certain chiefs and bands of the Sioux Nation of Indians, purporting to have been signed by members of the Medawakanton Band alone, by the first article of which said Indians ceded “to the United States all their land east of the Mississippi Eiver and all their islands in said river.”
    In consideration of said cession the United States, by article 2, agreed, among other things, to invest the sum of $300,000 and to pay to said Indians the interest thereon at the rate of not less than five per centum forever.
    The said annuities, were appropriated up to and including the year 1863, making 26 installments in all, amounting to $390,000, of which the plaintiffs received 24 installments, amounting to $360,000, the last payment being for the year 1861.
    IY. In 1851 the four bands of Mississippi Sioux ceded all of the lands in the Territory of Minnesota and the State of Iowa. The Sisseton and Wahpeton Bands by treaty of July 23, 1851, 10 Stat. 949, ceded all of the lands owned in common by the four bands by natural boundaries.
    The Medawakanton and Wahpakoota Bands by the treaty of August 5, 1851, 10 Stat. 954, article 1, bound themselves to perpetual peace with the United States, and by article 2 ceded to the Unitéd States all of their right, title, and claim to any lands whatever in the Territory of Minnesota and in the State of Iowa.
    By article 3 of each treaty a reservation was set apart for said Indians along the Minnesota, with an average width of ten miles on each side of said river. The reservation of the Sisseton and Wahpeton Bands, running with the general course of said river from the Tchaytambay River, which enters the Minnesota River on the north side, and the Yellow Medicine River, which enters it on the south side opposite to each other, thence in a northwesterly direction to the limits of the cession. The reservation of the Medawakanton and Wahpakoota Bands ran in a southeasterly direction from the Tchaytambay and Yellow Medicine Rivers to the Little Rock River, which enters the Minnesota on the north side and a line drawn due south from the mouth of the Waraju River, which enters it opposite.
    The four bands of Mississippi Sioux were thereupon removed to their reservations on the Minnesota River, after which the Sissetons and Wahpetons were known as the upper bands and the Medawakanton and Wahpakootas as the lower bands. The Government thereafter in its business dealings nearly always referred to them as the annuity Sioux.
    The consideration for the treaty of August 5,1851, among other things, provided for a trust fund of $1,160,000, the interest at five per cent, commencing July 1,1852, to be paid annually to the Medawakanton and Wahpakoota Bands for a period of fifty years, said annuities to be in full payment of the trust fund and interest.
    The Senate in ratifying the treaty struck out the third article and agreed to pay said Indians for the reservations provided thereby at the rate of 10 cents per acre, the amount after ascertainment to be added to the trust fund, and the President was authorized to set apart for said bands another reservation outside the limits of the cession. (The same course was pursued with regard to the third article of the treaty of July 23, 1851, and the reservation for the Sisseton and Wahpeton Bands.)
    
      The area of the reservation was ascertained to be 690,000 acres, which, at 10 cents per acre, amounted to $69,000, which was appropriated by the act of August 30, 1852, 10 Stats. 52, and added to the trust fund of $1,160,000. The interest thereon at 5 per cent, amounting to $8,450, was added to the interest on the trust fund, $58,000, and gave the two bands an increased annuity of $61,450.
    The treaty provided (article 4) that the annuity of $58,000 should be paid to said Indians as follows: For general agricultural improvement and civilization fund, $12,000; educational purposes, $6,000; purchase of goods and provisions, $10,000; money annuity, $30,000. The Government apportioned the added annuity of $3,450 among these different objects.
    Article 5 of the treaty provided that the annuity of $15,000 under the treaty of September 29, 1837, should thereafter be paid in money.
    Appropriations of annuities were made under the treaty of 1851 amounting to $830,241.47, the last appropriation being made by the act of February 16, 1863, 12. Stats. 652, for the year 1864 for $50,000. Of the said amount appropriated there was expended to or for said Indians under the terms of the treaty the sum of $742,707.96, leaving a balance of $87,533.51 in the hands of the Government.
    The President never set apart for said Indians a reservation outside the limits of the cession, as provided for in the Senate amendment to the treaty, and the plaintiffs, as well as the Sissetons and Wahpetons, continued to live on their reservations on the Minnesota River; and Congress by the act of July 31, 1854, 10 Stats. 326, confirmed said reservation to them.
    Y. In August, 1862, an outbreak occurred among the annuity Sioux in Minnesota consisting of the plaintiffs and the Sisseton and Wahpeton Bands, during which a large number of white settlers were massacred and a vast amount of property was destroyed. In consequence of this outbreak Congress passed the act of February 16, 1863, 12 Stat. 652,. which abrogataed and annulled all treaties between said Indians and the United States, declared all lands and rights of occupancy within the State of Minnesota and all' annuities and claims heretofore accorded to said Indians, or any of them, to be forfeited to the United States.
    The said act further provided for a commission to take testimony and to award damages, subject to the approval of the Secretary of the Interior, who was required, after action by him, to lay the report before the next Congress.
    The act provided for the payment of damages sustained by persons in Minnesota by reason of the said outbreak of the four bands or by United States troops during the Indian war in said State and appropriated therefor two-thirds of the balance of unexpended annuities in the hands of the Government “ for the present fiscal year,” not to exceed $100,000, and the further sum of $100,000, being two-thirds of the annuities due said Indians for the next fiscal year; and the sum of $10,000 was also appropriated out of said annuities for the expenses of the commission, amounting in all to $210,000.
    At the time this act of February 16,1863, was passed there ivas in the hands of the Government $202,034.48 belonging to the four bands, of which $61,533.51 belonged to the plaintiffs and $134,500.97 belonged to the Sissetons and Wahpe-tons. The said act added $100,000 to this fund, making a total of $302,034.48, of which $117,351 belonged to plaintiffs and $184,500.97 to the Sissetons and Wahpetons. The fund of the plaintiffs consisted of $87,533.61 of unexpended annuities under the treaty of 1851 and $30,000 of unexpended annuities under the treaty of 1837. There was expended for depredations and expenses of the commission under the act of February 16,1863, the said sum of $302,034.48, as will more fully appear in the next finding.
    VI. There were appropriated for the payment of damages due to depredations committed by the Sisseton, Wahpeton, Medawakanton, and Wahpakoota bands during the outbreak of 1862 and subsequent Indian war, and for damages by United States troops during the same period, in addition to the said sum of $302,034.48, advance annuities of the four bands, the sums of $1,170,374, appropriated by the act of May 28, 1864, 13 Stat. 92-93, and $2,283.92, by the act of March 3, 1877, 19 Stat. 549, to pay awards of the commission appointed under the forfeiture act. There was expended by the commission for payment of such damages out of the total' appropriations of $302,034.48 and $1,170,374 and $2,283.92, aggregating $1,474,692.40, the sum of $1,474,505.74, leaving a balance of $186.66, of which $114.66 was an award covered into the surplus fund, and $72 an unexpended balance. One-half of the amount so expended, $737,252.87, should be charged against the plaintiffs under the terms of the jurisdictional act.
    VII. There was appropriated for the removal of the Sioux of the Mississippi outside of the limits of any State and for establishing them in their new homes the sum of $50,016.66 by the act of March 3, 1863, 12 Stat. 784; and the sum of $137,293.40 was appropriated by the act of June 25,1864, 13 Stat. 172, for the removal and support of the Sioux and Winnebago Indians in Minnesota during the fiscal year ending June 30, 1864. There was expended for the removal and support of the four bands of annuity Sioux in Minnesota out of the total appropriations of $187,310.06, the sum of $182,452.69, and the balance was covered into the surplus fund, and none of the appropriation was used for the Win-nebagoes. The expenditures for removal and support were intermingled in the accounts of the Interior Department and the exact proportion expended for each is not definite, but one-fourth of the whole sum of $182,452.69 should be charged against the plaintiffs under the terms of the jurisdictional act for support, amounting to. the sum of $45,613.17.
    VIII. After the outbreak of August, 1862, all of the four bands of annuity Sioux who had not fled north were collected at Fort Snelling, near St. Paul, Minn., where they were held as prisoners. Of these Indians 425 were arraigned and tried by military commission and 321 were found guilty, of whom 303 were sentenced to death for murder, and the remainder to various terms of imprisonment for lesser offenses. The sentences of all but 39 were commuted by the President to life imprisonment, the 39 were promptly executed and the rest of them imprisoned at Davenport, Iowa.
    The act of March 3, 1863, 12 Stat. 819, authorized the President to set apart for the Sisseton, Wahpeton, Meda-wakanton, and Wahpakoota Bands a tract of unoccupied land outside the limits of any State, and directed the sale of their former reservations in Minnesota, and the use of the proceeds of the sale in establishing them in agricultural pursuits in their new homes. The Medawakanton and Wahpa-koota Bands held at Fort Snelling were moved, with a few of the upper bands, to Crow Creek, Dakota,' on the Missouri Biver, where they arrived on May 30,1863. Here they were gradually joined by other members of the two plaintiff bands, and on July 1, 1863, their location at Crow Creek was set apart by Executive order as a reservation for the “ Sioux of the Mississippi.” This reservation not proving suitable, a new reservation for the plaintiffs, now officially designated as “ Santee Sioux,” was set apart at the mouth of the Nio-brara Biver in Nebraska in February, 1866, to which they were removed in May and June, 1866. They still live on this reservation, their western line having been shifted some miles east of the mouth of the Niobrara Biver. Some of the Santee Sioux live near Flandreau, some at Granite Falls, on the Minnesota Biver near their old reservation, and some near St. Paul, Minn., but the main body live at the Santee Agency, Nebr., and those scattered through Minnesota are looked after from that agency.
    IX. There were appropriated by the acts of June"25,1864, 13 Stat. 180, March 3, 1865, 13 Stat. 559, July 26, 1866, 14 Stat. 219, March 2, 1861, 14 Stat. 514, $100,000 each and by the act of July 21, 1868,15 Stat. 321, $50,000, and by the act of June 22, 1874, 18 Stat. 141, $13,942.03 aggregate appropriations of $463,942.03, for subsistence, clothing, and general incidental expenses of the Sisseton, Wahpeton, Meda-wakanton, and Wahpakoota Bands, and of this appropriation there was expended for the purposes specified in the said acts the sum of $445,856.95, leaving a balance of $18,-085.08, which was covered into the surplus fund. One-half of the amount expended for the support of the four bands, $222,928.48, should be charged against the plaintiffs under the terms of the jurisdictional act.
    On June 19, 1858, 12 Stat. 1031, a treaty was made by the United States with the plaintiff bands, by Article II of which they agreed to cede that part of their reservation lying on the north side of the Minnesota Biver if the Senate should determine they had a valid title to the same, and by Article III that if the Senate should authorize the sale or fix the compensation therefor the proceeds of sale should, in the discretion of the chiefs in council, be used for payment of the just debts and obligations of the said Indians, not to exceed $70,000.
    A similar treaty on the same date was made with the Sis-setons and Wahpetons, 12 Stat. 1037.
    By the act of March 2, 1861, 12 Stat. 237, Congress appropriated $170,880 in payment for part of the Sisseton and Wahpeton Beservations, containing 569,600 acres of land, at 30 cents an acre, and $96,000 in payment for part of plaintiffs’ reservation, containing 320,000 acres of land, at 30 cents an acre.
    By the act of May 16, 1874, 18 Stat. 47, Congress authorized the Secretary of the Interior “ to discharge all obligations of the United States to the creditors of the Upper and Lower Bands of Sioux Indians arising under the treaty of June 19, 1858, between said bands and the United States and from the diversion by the United States of the funds and assets of said Indians in their possession and control applicable to that purpose: Provided, That the amount allowed and paid on said indebtedness shall in no event exceed the sum of $70,000.” Section 2 of the act appropriated $70,000, or so much thereof as might be necessary, to carry out the purposes of the act.
    By the act of March 3, 1881, 21 Stat. 431, an appropriation of $375 for the use of the four bands was made, making the total appropriations $70,375, of which sum $67,934.23 was expended; $25,472.30 in payment of the debts of the Sissetons and Wahpetons, $42,086.93 in payment of the debts of the plaintiffs, and $375 for the four bands. One-half the sum of $375, being the sum of $187.50, should be charged against the plaintiffs under the terms of the jurisdictional act.
    Congress by the act of March 3,1885, 23 Stat. 344, authorized the Secretary of the Interior to investigate, determine, and pay licensed traders for supplies furnished to the four bands before the outbreak of August, 1862, and appropriated $100,000, or so much as might be necessary, and provided that “ said sum shall be charged to the unpaid annuities stipulated to be paid to said Sioux under treaties” abrogated and annulled by the act of February 16, 1863.
    There was expended in settling said debts the sum of $42,991.50, and the balance, $57,008.50, was covered into the surplus fimd. One-half of the amount so expended, $21,495.75, should be charged against plaintiffs under the terms of the jurisdictional act.
    XI. There was appropriated for members of the four bands who served in suppressing the Sioux insurrection of 1862, or who served in the Civil War, and their descendants, by the acts of March 3, 1891, 26 Stat. 1038; March 3, 1893, 27 Stat. 623, 624; and March 5, 1895, 28 Stat. 887, 888, the sum of $206,353.30, of which there was expended for the purposes specified in the acts the sum of $204,249.39; one-half of which, $102,124.70, should be charged against the plaintiffs under the terms of the jurisdictional act.
    XII. There were some members of the Medawakanton and Wahpakoota Bands, who were reputed friendly to the whites, who never removed from Minnesota after the outbreak ; there were others who fled north before the advance of General Sibley, and returned gradually some years after-wards to their old homes in Minnesota, and still others who drifted in from the reservation in Nebraska and the settlement at Flandreau, S. Dak., until there were quite a large number of Santee Indians scattered over the State. The Government at various times from 1884 to 1891 made appropriations to provide these Indians with clothing, food, seeds, agricultural implements, horses, cattle, and, in some cases, with lands. The total appropriations amounted to $85,328.83, acts of July 4, 1884, 23 Stat. 87, 375; March 15, 1886,24 Stat. 39, 40; June 29,1888, 25 Stat. 228, 229; March 2, 1889, 25 Stat. 992, 993; August 19, 1890, 26 Stat. 349; March 2, 1895, 28 Stat. 873, 892; June 10,1896, 29 Stat. 338; June 7, 1897, 30 Stat. 78; July 19, 1897,30 Stat. 144; July 1, 1898, 30 Stat. 586; March 1, 1891, 30 Stat. 938. There was expended of the above appropriations the sum of $81,805.53 for the objects specified in the said acts, and all of the money so expended was for the benefit of the plaintiff bands, and should be charged against plaintiffs under the terms of the jurisdictional act.
    
      XIII. The act of March 3, 1863, 12 Stat. 819, authorized and directed the President to set apart for the plaintiffs and the Sisseton and Wahpeton Bands a tract of unoccupied land outside the limits of any State sufficient in extent to enable him to assign to each member 80 acres of good agricultural lands. In pursuance thereof a reservation was selected at Crow Creek on the Missouri River in South Dakota, where the plaintiffs who were held as prisoners at Fort Snelling, Minn., and a small number of the Upper Indians were removed by May 20, 1863. By order dated July 1, 1863, Kappler’s Ind. Laws and Treaties, vol. 1, p. 895, the President formally set apart for the Sioux of the Mississippi the Crow Creek Reservation.
    The reservation at Crow Creek having proved unsatisfactory, a reservation was located for the Medawakanton and Wahpakoota Bands at the mouth of Niobrara River in Nebraska by an Executive order dated February 27,1866. The lines of the reservation were changed by Executive Orders, dated July 20, 1866, November 16, 1867, August 31, 1869, December 31, 1873, and February 9, 1885, Kappler’s Ind. Laws and Treaties, vol. 1, pp. 861-864. The reservation as originally located contained over 115,000 acres, but was subsequently diminished to 72,914,46 acres, and this tract is now known as the Santee Reservation, and is 12 miles east of the mouth of the Niobrara River. The diminished Santee Reservation of 72,914.46 acres ivas reasonably worth $1 per acre, or the sum of $72,914.46.
    The Medawakanton and Wahpakoota Bands were removed from Crow Creek to the Santee Reservation in the spring and early summer of 1866.
    Reservations at Lake Traverse, S. Dak., and Devils Lake, N. Dak., were set apart for the Sisseton and Wahpeton Bands by the treaty of February 19, 1867, 15 Stat. 505, to which they were later removed.
    The remainder of the reservations of the four bands on the Minnesota River in Minnesota, extending into South Dakota, were sold under the provisions of the act of March 3,1863,12 Stat. 819, as one tract, containing 737,084.03 acres, and the proceeds, $944,810.78 were expended under said act and the act of July 15,1870,16 Stat. 361, amending the same.
    
      Congress, by the act of April 10, 1869, 16 Stat. 39, appropriated $15,000 to pay settlers on the Santee Reservation for damages caused by moving the plaintiffs to said reservation and onto the lands of said settlers in 1866. There was paid such settlers the sum of $11,612.93 by the Government.
    By reason of the diminution of said reservation, there was insufficient land to furnish all of the iSantee Indians with allotments. Congress by the act of January 19, 1891, 26 Stat. 720, appropriated $32,000 “to enable the Secretary of the Interior to purchase land for such of the Santee Sioux in Nebraska as have been unable to take lands in severalty by reason of the restoration of the unallotted lands to the public domain.” There was expended of the appropriation for the purposes specified in the act the sum of $31,700.94.
    The sum of $11,612.93, paid to settlers, should be charged against the plaintiffs under the terms of the jurisdictional act.
    XIV. Congress, by the act of July 15, 1870, 16 Stat. 353, appropriated $50,000 for the four bands for agricultural instruction, support, medicines for the sick persons and children, and such other things as would make them comfortable. All of the appropriation was expended for the objects specified in the act, and one-half, $25,000, should be charged against plaintiffs under the terms of the jurisdictional act.
    XV. Congress, by the act of July 4, 1884, appropriated $12,000 for bridges on the Santee and Ponca Reservations. Of this amount $2,400 was expended on the Santee Reservation, and should be charged against the plaintiffs under the terms of the jurisdictional act.
    XVI. The Sioux of the Missouri and the plaintiffs, the Santee Sioux, entered into a treaty of amity with the United States on April 29, 1868, 15 Stat. 635, by which the Great Sioux Reservation between the Missouri River and the 104th parallel of west longitude and between the northern boundary of Nebraska and the 46th parallel of north latitude, and the existing reservations on the east bank of' said river, were set apart for the absolute and undisturbed occupation of the Indians parties to the treaty and such other friendly Indians as they might admit with consent of the United States.
    There were no lands ceded by the Indians to the United States. The United States on its part agreed to supply said Indians with buildings, money, clothing, provisions, cows, well-broken oxen, an agent, a physician, a blacksmith, a carpenter, an engineer, a miller, and a farmer, and seed and agricultural implements, and educational facilities and other beneficial objects.
    The consideration moving from the Indians for these benefits was that they should keep the peace toward the whites and not interfere with the construction of railroads, and should forfeit all right to money, clothing, or other articles of property promised them under prior treaties.
    Thereafter there were appropriated annually, from July 15, 1870, to February 19, 1921, for the Sioux of different tribes, including the Santee Sioux, large sums of money, of which there was apportioned to the Santee Sioux and expended on their account the sum of $1,903,023.22, and the funds so expended were never reimbursed to the United States, and should be charged under the terms of the jurisdictional act against the plaintiffs. (16 Stat. 353, 562, 563; 17 Stat. 182, 183, 455, 456, 539; 18 Stat. 167, 441; 19 Stat. 28, 191, 192, 286, 287; 20 Stat. 80, 81, 309, 310; 21 Stat. 126, 127, 496, 497; 22 Stat. 9, 80, 444, 585; 23 Stat. 87, 375; 24 Stat. 39, 393, 459, 460; 25 Stat, 228, 991; 26 Stat. 348, 349, 549, 720,1001,1002,1038; 27 Stat. 132, 623, 624; 28 Stat. 299, 887, 888; 29 Stat. 333, 334; 30 Stat. 74, 75, 582, 583, 935; 31 Stat. 232, 1069, 1070; 32 Stat. 254, 990; 33 Stat. 199, 200, 1055; 34 Stat. 371, 1047, 1048; 35 Stat. 94, 810; 36 Stat. 283, 1072; 37 Stat. 536; 38 Stat. 98, 99, 602, 603, 1228; 39 Stat. 151, 987; 40 Stat. 585; 41 Stat. 429.)
    At the time the treat}' of April 29, 1868 was negotiated, the Santee Sioux Indians had parted with all their lands and were totally indigent, broken spirited, and without hope. They had been completely subjugated and were entirely under the influence of the United States. They were occupying the reservation at Niobrara, subject to the will of the President, and were too far removed from the lines of the transcontinental railroads to have offered any effective opposition, even if they had desired, and they were in such a condition that no hostile acts on their part were to be apprehended.
    XVII. The account between the plaintiff and the United States is as follows:
    CREDITS.
    1. Annuities under treaty of September 29,-1837, from
    date of treaty to June 5, 1922, 84 years, 8.2
    months_$1, 270,250.00
    2. Capital sum of annuities under treaty of September
    29, 1837_ 300,000.00
    3. Annuities under treaty of August 5, 1851, 50 annual
    payments of $61,450_ 3,072,500.00
    4, 642, 750.00
    DEBITS.
    1. Payments of annuities under treaty of
    September 29, 3837 (Finding III)_$360, 000. 00
    2. Payments of annuities under treaty
    of August 5, 1851 (Finding IV)_ 742, 707. 96
    3. Expenditures for depredations under
    act of February 16, 1863 (Finding VI)_ 737,252.87
    4. Expenditures for support under act
    of March 3, 1863 (Finding VII)_ 45, 613.17
    5. Expenditures for support (Findings
    IX, XII, and XIV)_ 329, 734. 01
    6. Payment of debts of plaintiffs to
    traders (Finding X)_ 21,683.25
    7. Payments to scouts and soldiers
    (Finding XI)_ 102,124.70
    8. Payments to settlers on Santee Reser-
    vation (Finding XIII)_ 11,612.93
    9. Expenditures for bridges on Santee
    Reservation (Finding XV)_ 2,400.00
    10.Expenditures for support, subsistence, clothing, civilization, agriculture, etc., after the treaty of April 29,
    1868, from July 15, 1870, to February 19, 1921, out of annual appro-
    priations (Finding XVI)_ 1,903,023.22
    - 4,256,152.11
    386, 597. 89
   Campbell, Chief Justice,

delivered the opinion of the court:

By the act of March 4, 1917, 39 Stat. 1195, jurisdiction is conferred on this court to render judgment for any balance that may be found due the Medawakanton and Wahpakoota Bands of Sioux Indians, “ otherwise known as Santee Sioux Indians,” upon certain indicated matters under the terms and provisions of the jurisdictional act. When this act was passed, the case of the Sisseton and Wahpeton Bands of Sioux, 42 C. Cls. 416, 208 U. S. 561, had been decided, and the act there involved and the court’s construction of it were therefore before Congress and were considered by its committees. This fact has additional significance when we find that some of the terms of the former act have been materially changed or are omitted entirely in the present act.

By a treaty of September 29, 1837, 7 Stat. 538, the Government agreed to set apart the sum of $300,000 and pay the interest thereon annually in perpetuity, the consideration of this agreement being the cession by the Indians of their lands east of the Mississippi River and all their islands in the river. The principal sum was accordingly held and the interest thereon at the rate of five per cent per annum, making an annuity of $15,000, was regularly paid to the Indians represented by plaintiff bands until the act of forfeiture in 1863, hereafter mentioned.

By a treaty of August 5, 1851, 10 Stat. 954, the Medawa-kanton and Wahpakoota bands ceded to the United States all claim to any lands in the territory of Minnesota and in the State of Iowa, and a reservation was set apart for them which is described in the treaty. The Government undertook, by this treaty, to provide a trust fund of $1,160,000, the interest on which, at five per centum commencing July 1, 1852, to be paid annually to the plaintiff bands for a period of fifty years, the payments to be in full discharge of the trust fund and interest at the end of the fifty years. The provision relative to the reservation above mentioned was stricken out by the Senate, and a provision was incorporated in lieu thereof whereby the Government agreed to pay ten cents per acre for the lands comprised with the 'reservation, and the amount thus realized was to be, and was in fact, added to the trust fund mentioned, and bore interest, thereby increasing the annuity. The area involved was 690,000 acres. This at 10 cents per acre produced $69,000, to be added to the trust fund of $1,160,000, increasing it accordingly to $1,229,000, and creating an interest charge of $61,-450, which was practically paid to the Indians until the forfeiture act of 1868.

It was said by Judge Barney in the case of Sisseton and 'Wahpeton Indmnsy supra (p. 423) : “ In the year 1862 an outbreak of the Sioux Indians occurred, in which they committed terrible depredations and outrages upon the settlers in Minnesota, constituting one of the darkest pages in the history of Indian warfare. It is undisputed that at least a part of the claimant Indians were engaged in this outbreak and massacre, together with the Lower Sioux above mentioned. The Lower Sioux were, however, located nearer the white settlement, and for this reason probably a larger proportion of them participated in the outrages.” As appears from the preamble of the act itself, it was because of these outrages committed by the Indians that the forfeiture act of February 16, 1863, 12 Stat. 652, was-enacted. It abrogated and annulled the treaties that had been made with the four bands of Indians, or any of them, so far as any of them purported to impose “any future obligations on the United States,” and forfeited their lands and rights of occupancy within the State of Minnesota and all annuities and claims before that time accorded to any of them. A large part of the accrued annuities was also set apart, to be used by commissioners provided for in the act, in paying damages to persons suffering losses from the depredations of these Indians.

The payment of the annuities and interest under the two treaties of 1837 and 1851 with the plaintiff Indians thus ceased, but there were many subsequent acts appropriating money for the Santee Indians, and in the language of some of these appropriation acts there is an apparent recognition of the idea that at some time there might be a restoration of some of the annuities.

The jurisdictional act of March 4, 1917, with which we are now concerned is the first to give concrete expression to the idea of restoration so far as affects the plaintiff bands of Indians. Its title is “An act for the restoration of annuities to the Medawakanton and Wahpakoota (Santee) Sioux Indians, declared forfeited by the act of February 16, 1863.” It does not in terms restore all the annuities, but provides a method of their settlement. The annuities provided by the treaty of 1837 were to be perpetual; and those provided by the treaty of 1851 and the additional sum added by a later enactment were to run for fifty years. The period for the latter had therefore expired when the jurisdictional act was passed. The direction of the act to render final judgment for any balance that may be found due the Santee Indians for any annuities ascertained to be due them under the treaties mentioned, “ as if the act of forfeiture of the annuities” had not been passed, would be a simple process, quite easy of solution but for the proviso that limits the annuities under the treaty of 1837 to the date of the judgment of the court, directing that against the ascertained amounts due the Indians there is to be set off “ all moneys paid to said Indians or expended on their account by the Government ” since the abrogation of the treaties. There is also a reference to the effect of the treaty of 1868 to be adverted to later, but not material in this connection. It is to be noted, however, that the language of the present act departs from that in the Sisseton and Wahpeton Indian case, supra, in a material way in the matter of set-offs. The earlier act provided that the set-offs should be “ all payments or other provisions of every name or nature made to or for said bands * * * which are properly chargeable against said unpaid annuities,” and this last clause was given construction by Judge Barney in the court’s opinion (pp. 426, 427). The present act requires us to debit the Indians with all moneys expended on their account as well as to take into consideration “ all equities and benefits received ” under the treaty of 1868 by these Indians.

One of the- first questions presented is the insistence by the Government that the principal sum of $300,000 contemplated by the treaty of 1837 is not to be taken into the account, and that the requirements of the act are met by stating on the credit side of the account the unpaid annuities under the treaties mentioned. Referring to the punctuation in the act, the Government says that if the comma following the words “ not including interest ” had been omitted there would be no doubt that the meaning would be that neither interest nor the principal sum should be included, and that the presence of this comma does not make it certain that Congress intended” that the capital sum should be included as a credit. We are less concerned with what would have been intended if the punctuation had been different than we are with the act as passed, and while a history of the enactment on its passage through the two Houses seems conclusively to show that this comma was inserted to make a separation of the clauses, it is not essential in our view to place the meaning upon that fact alone. The purpose of the act is not alone to restore annuities. The restoration of them is limited, and a rule for a final settlement is stated. The restoration of them, if nothing else had been said or done, may very well have restored this principal sum, because the treaty of 1831 is for a perpetual annuity. The balance due the Indians for any annuities under and by virtue of the treaties would certainly involve the character of the annuities themselves and the period of their duration.

The Congress could have directed that the Indians be credited with the unpaid annuities to date of judgment, “ not including interest,” and omitted any reference to the principal sum, in which event we would take no notice of that sum, and therefore the mention of it in the act is significant of an intention to make a final settlement of the differences between the parties, and certainly the presence of a principal sum to produce an annuity forever is an important factor in such a settlement. If it had been intended to exclude this item of credit it would have been differently phrased and made to say “ not including interest or the principal sum.” The presence of the comma accentuates the meaning intended. The present value of the unpaid annuities without interest is to be found, which is the sum of them to the stated date, and there is to be added the capital sum of said annuity (act of 1837), “ which shall be in lieu of said perpetual annuity.” It would seem also that in order to find the present value of an annuity in perpetuity the principal or capital sum is the only basis.

In accordance with these views we have credited the Indians with the unpaid annuities -without interest, giving them credit under the treaty of 1851 with the balance of the fifty payments stipulated for but discontinued by the act of 1863, and giving them credit with the unpaid annuities provided by the treaties of 1837, until the date of judgment, and further crediting them with the capital sum mentioned in the earlier treaty. The statement of account takes the form of credit and debit from the beginning of the treaties instead of commencing with 1863. This latter statement accounts for items 1 and 2 of the debits. As to the other items of debit, there is a wide difference between the parties, as shown by their briefs. The plaintiffs urge that few payments under the treaty of 1868 are to be accounted for, but we can not adopt that view. The reason for the insertion of the second proviso in the jurisdictional act is apparent when it is considered that the effect of the treaty of 1868 was to abrogate all former treaties, and it stood in the way of the allowance of annuities under the treaties of 1837 and 1851 as being due beyond 1868. The proviso takes care of this question by declaring that the treaty of 1868 shall not be a bar; but it further provides that all “ equities and benefits ” received under it shall be taken into consideration by the court. The words “equities and benefits” are not to be taken as limitations upon the meaning of “all monies paid to * * * or expended on ” behalf of the Indians, which the act requires us to set off against the amounts found due them, but they have full scope in the proviso itself. The treaty of 1868 is not a matter of defense for the Government, nor is it defensive matter for the Indians upon the question of moneys paid to them or on their account.

Item 3 is for expenditures for depredations committed by the Sioux Indians and for damages by troops. The appropriations for these items were regularly made and are clearly moneys expended on account of the Indians.

Item 4 is for the removal and support of the Indians under the acts of March 3, 1863, and June 25, 1864. One-half of these expenditures, amounting to $91,226.35, is chargeable against plaintiffs if they should be charged with the cost of their removal. The evidence fails to show the exact proportion applicable to the different items. The question is not free from doubt, but in view of the ruling upon a similar question in the Sisseton case, supra (p. 430), we think the cost of removal should be borne by the Government. We have concluded that the cost of their support should be charged against the Indians, and as this amount would be at least equal to if it does not exceed the cost of removal we have divided the item equally and charged the Indians with one-half of the entire cost of removal and support.

Item 5 is for expenditures for support, clothing, and general incidental expenses of tíre Indians from appropriations made by certain acts mentioned in Findings IX, XII, and XIY, and are charged against the plaintiffs as amounts expended on their account.

Item 6 is a charge against the Indians on account of payments‘to traders affected by the outbreak of 1862. The principal amounts involved in these payments is made a charge against the annuities by the terms of the appropriation act, 23 Stat. 344, and one-lial'f of the appropriation of $375, 21 Stat. 431, is also chargeable against them. The Government insists that there should also be a charge of $42,086.93 comprised of payments made on account of debts of the Indians. A corresponding item was claimed against the Indians in the Sisseton case (p. 431) and was rejected. It further appears, however, that the appropriation to make these payments was made in 1874, 18 Stat. 47, and the amount authorized was $70,000. Its purpose is stated in the act to be to discharge obligations of the United States arising under the treaty of 1858 “ and from the diversion * * * of the funds and assets of the Indians” in the Government’s control “ applicable to that purpose.” The $70,000 thus appropriated is not a charge against the Indians, in view of the statement in the act that their funds applicable to a stated purpose had been diverted, the Government assuming the obligation.

Item 7 is for payments of scouts and soldiers and is conceded by the plaintiffs in this case.

Item 8 involves an expense on account of the Indians which is explained as follows: These Santee Indians had been removed to the Crow Creek Reservation in 1863, but because of some dissatisfaction they were allowed to remove to a reservation set apart in February, 1866, at the mouth of the Niobrara River. They removed in May and June, 1866. Some settlers were upon these lands before the reservation was set apart. The item under consideration was appropriated for “ as damages sustained by citizens of Niobrara Township ” by the Government’s action “ in moving the Santee Indians upon their lands in 1866.” “ Their lands ” referred to the lands of the settlers, as the Indians had no lands in that vicinity. The payment was made on account of the Indians. Correlated with this item are two claims of debit insisted upon by the Government, (1) the value of lands in the Niobrara Reservation, and (2) the appropriation of $32,000 to purchase lands to restore the amount of acreage necessary to allotments to the Indians. The original reservation contained over 115,000 acres. This had been reduced by restoration to public domain, so that there remained about 73,000 acres, which were insufficient to admit of the allotment to the several Indians of lands, as was contemplated by the act of March 3,1863, by which the President had been authorized and directed to set apart for the Indians a tract of unoccupied lands “ sufficient in extent to enable him to assign to each member 80 acres of good agricultural land,” 12 Stat. 819. It thus appears that while the lands in the original reservation were sufficient to carry out the purposes declared in this act, they had been reduced in amount, and it became necessary to restore the amount of acreage.

The Government is not entitled to charge the Indians with the sum required to replace this acreage. The act of 1863 required the 80 acres of land to be assigned to the several Indians, and the latter were not responsible for the restoration of part of the reservation to the public domain. We are of opinion that the claim of $31,700.14 can not be maintained. Similar considerations forbid the charge against the Indians of the value of the 73,000 acres in the reservation. It is insisted upon by defendant and is apparently conceded by plaintiff’s brief, but the jurisdictional act does not include such items and the reservation was set apart because of the act of 1863.

Item 9 contains appropriations for bridges. We have charged the Santees with the cost of bridges on their reservations. The larger part of the appropriation was expended upon a bridge across the Niobrara Eiver, which did not connect with the Santee lands. These were some miles away.

Item 10 comprises the amounts shown by the annual appropriations and expenditures (not above included) on account of the Santees from 1870 to 1921. This does not include the apportionment of over $180,000 to the Santees under the act of 1889, 25 Stat. 888. Under our understanding of the jurisdictional act these expenditures being on account of the Indians are proper charges against them. The Government by this act is restoring annuities as well as the present value of the same, and as has been stated its plain purpose is to have a settlement of matters. The proviso relative to the treaty of 1868 would authorize the court to charge the Indians with amounts paid for them under the scope of “ equities and benefits,” but the specific requirement is that they be charged with moneys paid to them or on their account. Only by thus debiting the Indians can the final settlement contemplated by the jurisdictional act be consummated.

Our conclusion is that the plaintiff Indians are entitled to recover the sum of $386,597.89. And it is so ordered.

Graham, Judge; Hat, Judge; Dowhet, Judge; and Booth, Judge, concur.  