
    THE CHEROKEE NATION v. THE UNITED STATES. THE EASTERN CHEROKEES v. THE SAME. THE EASTERN AND EMIGRANT CHEROKEES v. THE SAME.
    [40 C. Cls. R., 252; 202.U. S. R. 101.]
    
      On all parties'1 Appeals.
    
    The agreement between the United States and the Cherokee Nation for the sale of the Cherokee Outlet provides, as a part of the consideration, that the United States shall render without delay a complete account of moneys due the Cherokee Nation. If the nation accepts the account, Congress shall immediately appropriate the money found to be due. If the nation deems the account improper or unjust or illegal, it may bring an action in the Court of Claims. Pursuant to the agreement accountants are appointed by the Secretary of the Interior, who make out an account showing a balance in favor of the nation for $1,134,24S.23, with interest, from different specified dates. The account, with the nation’s acceptance, is transmitted to Congress by the Secretary of the Interior, but Congress make no appropriation and do not act in any way for several years, when an act is passed conferring jurisdiction upon this court. The principal item of the account is $1,111,248.70, being for moneys which should have been divided per capita among the Clierokees instead of being applied to the expenses of their removal under the treaty of 1835.
    The court below decides:
    1. The account contemplated and required by the agreement between the United States and the Cherokee Nation, ratified by Congress (27 Stat. L., p. G40, §10), is the account of the United States and not the account of arbitrators, referees, or accountants. It is therefore neither an award nor an account stated.
    2. Before there can be an award having the element of finality there must be something mutually submitted by the parties to somebody.
    3. An account stated is something arising in the ordinary course of business between men having continuous business transactions. It is made out by the creditor and accepted by the debtor. Acceptance may be either express or implied. If no objection is raised within a reasonable time the law merchant holds that the debtor assents, and an action will lie upon the account for the balance stated.
    4. The intent of the agreement ratified by Congress was that the accountants should go behind statutory and treaty bars, or receipts in full, thereby enabling the Cherokee Nation to have all claims for moneys improperly, unjustly, or illegally withheld reexamined and settled upon just and equitable principles; and this agreement was a part of the consideration given by the United States for the cession of the Outlet. .
    5. When the Secretary of the Interior transmitted to Congress the account of the United States, together with the acceptance of the Cherokee Nation, it was incumbent upon Congress at the same session either to appropriate the money found due or to return the account to the Secretary and order a further accounting. The action of Congress originally in ratifying the agreement for the purchase of the Outlet and the subsequent inaction of Congress in not carrying out the provisions of the agreement render the United States liable for the balance stated.
    The decision of the court below is affirmed on the same grounds, with the exception of a slight modification of the second subdivision of the fourth paragraph of the decree, directing that the distribution “ be made to the Eastern Cherokees as individuals, whether east or west of the Mississippi, parties to the treaties of 1835-36 and 1846 and exclusive of old settlers.”
   Mr. Chief Justice Fuller

delivered the opinion of the Supreme Court April 30, 1906.  