
    ROLLINS AND PRESBREY v. THE UNITED STATES.
    [Departmental
    No. 18.
    Decided February 6, 1888.]
    
      On the Proofs.
    
    An attorney contracts with the Eastern Band of Cherokecs t o do six distinct things npon a sx>eoifi° consideration for each. Only one of these provisions is approved by the Interior Department. It purports to be made by the Chief by virtue of his authority as Chief. His authority is never questioned and the Indians have the benefit of the attorney’s sorvices. The question is raised whether certain transactions in the Interior Department constituted such a final determination'as would preclude a subsequent Secretary from transmit'ting it under the Bowman Act.
    I.Any public officer in an Executive Department may correct his own errors and open, reconsider, or reverse any case decided by himself.
    II.An order of a Secretary that an account “be allowed without prejudice to the panics to claim a balance still due Hum ” is not a final determination of the claim.
    III. An official letter from the Acting Secretary of the Interior to the At- , torney-Genoral, stating that “ the Secretary has ordered the case reopened” is conclusive proof of that fact.
    IV. Where an agreement is to do six distinct things uj)on a specific consideration for each, it is severable, and in the case of such a contract with Indians, tho Interior Department may ap£>rove one provision and reject the others.
    V.Where a contract purports to be by the authority vested in the Chief of an Indian band which was never questioned, and the Indians had the benefit, of the sorvices of the other party, the power to mate the contract will be deemed established without positive proof.
    
      The liqporters’’ statement of the case:
    The claim in this case was transmitted to the court under the Bowman Act by the Secretary of the Interior in June, 1881. It was not brought to a bearing until January, 1888. The following are the facts, which, with the opinion of the court, were transmitted to the Secretary of the Interior for his guidance and action.
    I. The council of the Eastern Band or North Carolina tribe of Cherokee Indians passed the following resolutions :
    “State oe North Carolina,
    “ County of Cherokee:
    
    “ Oheoah Council Ground, October 9,1872.
    “ Whereas it is the sense of this council to employ some discreet and trusty person, to prosecute all the claims of the Eastern Band or North Carolina tribe of the Cherokee Indians against the Government of the United States at Washington, arising under different treaties and laws from the year 17S3 down to the present time : Now, therefore, be it
    “ Resolved by the Eastern Band or Earth Carolina Cherokee tribe of Indians in general council assembled, and it is hereby resolved by the authority of the same—
    “ 1st. That John Ross, chief of Eastern Band of Cherokees, be, and he is hereby, authorized and empowered to employ some discreet and trusty person to have custody of and to prosecute the claims of the tribe for reservations, spoliations, and pre-emptions under the treaties of 1817 and 1819, and the payments provided for by -the treaty of 1835-36.
    “ 2d. To assert and establish before the proper authority of the United States all the interest and claims which the said tribe may have upon the United States Government, arising under the provisions of the 12th article of the treaty of 1835, and of an act of Congress approved July 29th, 1848, and to collect and procure the payment to the above-mentioned tribe of all the interest which they may have in and to a fund derived from the proceeds of the sale of the lands known as the neutral lands, the Cherokee strip in the State of Kansas, and all the lands west of longitude 96, as provided for and by virtue of the treaty of July nineteenth, 1866, a part of which fund is in the custody of the Department of the Interior.
    “ To prosecute, collect, and procure the payment to the said tribe from the Congress or any other'authority of the United States, of whatever the said tribe may be entitled to from the United States on account of the misappropriation, unauthorized, extravagant, or unnecessary expenditure of any portion of the fund of five million dollars set apart, as well for the use and benefit of the Eastern Band of Cherokees as for those of that nation who removed West by virtue of the first article of the treaty of 1835, which claim is as yet unadjusted.
    “To procure the payment to the said tribe from the Secretary of the Interior so much of an appropriation as they may be entitled to, now in his hands for distribution according to the provisions of the fourth section of an act of Congress, entitled “An act making appropriations for the current and contingent expenses of the Indian Department, and for fulfilling treaty stipulations,” etc., approved May 29th, 1872.
    
      “Resolved further, That the chief, John Ross, be, and is hereby, instructed to employ and make a contract with a competent person to carry out the. instruction and purpose of the said council as above mentioned : Provided however, That the person to be selected by the chief, John ltoss, shall not be allowed, or receive more than twenty-five per centum as compensation for all his services in prosecuting, establishing, collecting, and procuring the payment to the said tribe of all or any portion of the claims as above mentioned : And provided further, That all such contracts made as provided ior by this council shall be first approved of by the Secretary of the Interior and Commissioner of Indian Affairs, as provided for by an act regulating the mode of making private contracts with Indians, May 21, 1872.
    
      uBesolvcd further, Thata duplicate copy of these resolutions shall accompany the contract or agreement made and entered into hereafter by Chief John Ross with a competent person as above mentioned.
    “ Approved.
    “John Ross,
    
      11 Principal Chief.
    
    “David Aams,
    “ Cleric of Council.
    
    “ David+Tucker.
    “ Attest:
    “John C. Tatham:,
    “ Interpreter.
    
    “Jaimes Taylor.”
    Said Ross, in pursuance of said resolution’s authority as chief, and his authority as principal chief, entered into the following contract:
    “ Whereas by a resolution of the council of the Eastern Band of the Cherokees in general council assembled and constituted according to the instructions and regulations of the Interior Department, at a session held at Cheoah, in the county of Graham, formerly Cherokee County, in the State of North Carolina, on the first Monday in October, A. D. 1872, it was determined to employ some discreet and trusty person to prosecute the various claims of the tribe against the Government of the United States at Washington City, or elsewhere, arising under different treaties and laws of the United States and the State of North Carolina from the year 1783 down to the present time, and the [chief, John Boss, of Ihe county of Graham, formerly Cherokee County, in the State of North Carolina, was at the same time- and by the same authority instructed to make a contract with a competent person to carry out the intention and purpose of the said council as above mentioned; and
    “ Whereas since the first Monday in October, A. D. 1872, various suits at law and in equity have been begun by the district attorney of the United States at the request of the said John Boss, chief, in the name and for the benefit of the said Eastern Band of Oherokees, against divers defendants, which suits are depending in the Circuit and District Courts of the United States, and other suits will have to be brought in said courts and the courts of North Carolina to establish the rights and redress the wrongs of the said Eastern Band of the Oherokees, and the proper conduct and management of all this litigation, pending and proposed, will require the services of an active and efficient agent, and the said chief John Boss, for and in behalf of the Eastern Band of the Cherokees, and by virtue of his authority as chief of said band, having selected Wallace W. Bollins, attorney at law, of the town of Marshall,, in the county of Madison and State of North Carolina, as a person suitable to be entrusted with the conduct and management of all their business with the Government of the United States, and such as is or may hereafter be in litigation in any of the above-mentioned courts or in any other court or before any tribunal of arbitration or reference now or hereafter to be-constituted:
    “ Now, therefore, it is agreed between the said John Boss,, chief of the Eastern Band of the Cherokees, for and in behalf of said Eastern Band and by virtue of his said authority as chief, as aforesaid, and Wallace W. Bollins, of the town of Marshall, in the county of Madison, in the State of North Carolina,, as follows: That the following things shall be endeavored to be done by the said Wallace W. Bollins, viz:
    “ (1) To assert and establish before any proper officer or authority of the United States, and to collect for the Eastern Band of the Cherokees, or those of said band thereunto entitled,, all such sums of money as may be due to the said Eastern Band of the Cherokees, or to any individual or individuals thereof,, and due to them, or any of them, under the provisions of the twelfth section of the treaty of 1835 and 1836, and of an act of Congress approved July 29, 1848, and of subsequent acts of Congress, to carry into effect the provisions of said treaty, and of said act of 1848.
    “ (2) To assert and establish before any proper officer, or authority of the United States, and to collect for the Eastern Band of the Cherokees all such sums of money as they may be entitled to from the United States, being their pro rata share-cf a fund derived from the sale of the lands known as the neutral lands, the Cherokee strip in*the State of Kansas, and all the land west of longitude 90°, as provided by virtue of the treaty of July 19, 1866.
    “ (3) To assert, prosecute, establish, and collect all the demands of the Eastern Band of the Cherokees, or any individual of said band, against the United States, on account of their claims known as reservation, pre-emption, and spoliation claims, arising and due under and by virtue of the treaties of 1835-36, and 1846, which are now unadjusted.
    “ (4) To prosecute, assert, establish, and collect for the Eastern Band of the Cherokees before and from the Congress of the United States, or from any other authority of the United States, whatever the Eastern Band of the Cherokees may be entitled to from the United States on account of the misappropriation, unauthorized, extravagant, or unnecessary expenditure of any portion of a fund of ñve millions of dollars ($5,000,000) designated and set apart, as well for the use of the Eastern Band of the Cherokees as for those of that nation who removed west, by virtue of the first section of the treaty of 1835, which claim is unadjusted.
    “ (5) To assert, prosecute, and collect for the Eastern Band of the Cherokees so much of an appropriation as they may be entitled to, authorized by the provisions of the fourth section of an act of Congress entitled ‘An act making appropriation for the current and contingent expenses of the Indian Department, and for fulfilling treaty stipulations with various Indian tribes,’ etc., approved May 29, 1872.
    “ (6) To prosecute and attend to personally, and by such attorney or attorneys as be may employ (and whom he is hereby authorized to employ), all suits now pending in the courts of the United States in behalf of the Eastern Band of the Cherokees against any person' or persons whatsoever, and such other suits as it may be necessary hereafter to institute in any court of the United States, or of the State of North Carolina, or of any other State or Territory, or before any tribunal of arbitration or reference, to establish any right, or redress any wrong or injury done to the said Eastern Band of the Cherokees, or to any individual thereof.
    “ Tbe .said Wallace W. Boliins covenants and agrees with the said the Eastern Band of the Cherokees faithfully and diligently to attend to the prosecution and collection of all the different claims hereinbefore set forth and specified: and to the' suits at law or in equity now pending and above mentioned, or to any others which may hereafter arise; and as a compensation for his services in behalf of the said Eastern Band of tbe Cherokees in the matters and things hereinbefore specified the said chief, John Boss, for and in behalf of the Eastern Baud of the Cherokees, agrees to pay the said Wallace W. Hollins 20 per cent, of such amounts as he may collect for or establish to be due to the said Basteru Baud of the Cherokees on account of any one or all of the claims hereinbefore mentioned, and at the same rate, out of such amounts of money or property as may be recovered in the said above-mentioned suits at law or in equity now pending, or which may hereafter be instituted. It is further agreed that upon any compromise of any of the claims of the said Eastern Band of the Cherokees, hereinbefore mentioned, which the said Wallace W. Rollins, or any one employed by him in. this behalf as counsel, may bring about or upon any decision or award made by any referees or arbitrators to whom the matter now in dispute between the said Eastern Band of the Cherokees and the said above-mentioned defendants in the said suits now pending in the United States courts, that upon whatever sum or sums of money may thus be agreed upon, or adjudged to be due or owing to the said Eastern Band of the Cherokees, the same rate of compensation as above mentioned shall be paid to the said Wallace W. Rollins; and if the compromise or award shall be of real or other property, then the compensation shall be at the same rate upon the valuation of the said property.
    “ This contract shall continue for four years from the date of its signature by the said chief, John Ross, and the said Wallace W. Rollins; and the said John Ross for the said Eastern Band of the Cherokees hereby revokes all and every authority which may be claimed or set up by any other person or persons, except the said Wallace W. Rollins, upon any pretense whatever to represent the said Eastern Band of the Cherokees in the business specified in this contract.
    “ Signed in duplicate at Asheville, N. C., May 15, A. D. 1874.
    “John Ross,
    “ Chief of the Eastern Band of Cherolcees.
    
    
      “ Wallace W. Rollins.”
    “ United States oe America,
    
      11 Western District of North Carolina:
    
    
      “ I, Robert P. Dick, judge of the United States District Court within and for said district, do certify that, on the 15th day of May, A. D. 1874, personally appeared before me at Ash-ville, in the county of Buncombe, within said district, John Ross, chief of the Eastern Band of the Cherokees, mentioned in the foregoing contract, of the one part, and Wallace W. Rollins, of the other part, who acknowledge .the executioh of said contract in my presence.
    “ I further certify that it appears to me, from the statements of the parties before me, that the Eastern Band of Cherokees is the party interested of the one part, and Wallace W. Rollins is the party interested of the other part, in the above-mentioned contract; that the authority claimed by the said chief, John Ross, in my presence and in his own proper person is, that he is the lawful chief and representative of the said Eastern Band of Cherokees, and, by virtue of his authority as such chief, he has the power to make the foregoing contract, and in the exercise of said power has thereunto agreed and executed the same; and that the said Wallace W. Bollins, in my presence and in his own proper person, claims to agree to and execute the said contract in his own right and for his own benefit.
    “ Witness my hand and seal of the said United States District Court, at Asheville, in the county of Buncombe and State of North Carolina, as aforesaid, the day first above written.
    “ Rout. P. Dick,
    “ United States District Judge?
    
    “ I hereby disclaim any intention to demand or right to receive more than 20 per cent, for all my services under the within contract and that of the same date between the principal chiefs and headmen of the Eastern Band of Cherokee Indians and myself.
    “Wallace W. Bollins.”
    “ I assign one-half my interest to the within contract to Otis F. Presbrey, attorney at law, Washington, D. O.
    “ Dated August 5,1874.
    “ Wallace W. Bollins
    “Department oe the Interior,
    “Oefice op Indian Affairs,
    “ August 24, 1874.
    “ I hereby assent to the foregoing assignment.
    “H. B. Clum;
    
      “Acting Commissioner?
    
    “ Department of the Interior,
    
      “August 25, 1874.
    “ The foregoing assignment is hereby assented to.
    “W. H. Smith,
    “ Acting Secretary?
    
    “Department of the Interior,
    “Office of Indian Affairs,
    “ June 24, 1874.
    “ I hereby approve the sixth section of the within contract authorizing the party of the second part—
    “ 1 To prosecute and attend to personally and by such attorney or attorneys as he may employ (and whom he is hereby authorized to employ), all suits now pending in the courts of the United States in behalf of the Eastern Band of the Cherokees against any persons whatsoever, and such other suits as it may be necessary hereafter to institute in courts of the United States, or of the State of North Carolina, or of any other State or Territory, or before any tribunal of arbitration or reference, to establish any right or redress any wrong or injury done to the said Eastern Band of the Oherokees or to any individual thereof.’
    “ For which service the said party of the second part is to receive 20 per cent, of such amount as may be recovered thereby to the Eastern Band of Cherokee Indians.
    “H. R. Glum,
    “ Acting Commissioner.”
    “DEPARTMENT OE THE INTERIOR,
    
      “August 25,1874.
    “ I hereby approve the sixth section of the within contract as recited and approved by the Commissioner of Indian Affairs.
    “W. II. Smith,
    “ Acting /Secretary.”
    IL At the time of the making of said contract there were landing in the Circuit Court of the United States for the western district of North Carolina two suits, one at law and one in equity* in favor of the Eastern Band of the Cherokee Indians against William H. Thomas and others for the recovery of lands and money alleged to be the property of said Indians. These suits were instituted under provisions of the act of Congress of July 15, 1870, chapter 298, section 11, by the Attorney-General and district attorney.
    III. The claimant Rollins immediately upon the execution of said contract and before its approval by the Secretary of the' Interior entered upon and attending to the prosecution of said suits and assisting the district attorney. In June, 1874, he appeared in said suits, was recognized by the court as agent and attorney for said band, and as such assented to the reference of said cases to arbitrators, which was ordered by the court upon consent of all parties interested.
    Said claimants assisted in the trial of said cases before said arbitrators in preparing the cases and in obtaining and arranging the evidence, and faithfully and diligently attended to the prosecution of the same to the conclusion thereof.
    Said suits resulted in the recovery to and for said band of Indians—
    Money to the amount of.$11,183.89
    Land to the value of. 65,700.00
    76,883.89
    
      The claimants been paid the sum of $5,200, and no more.
    IY. Thereafter the claimants presented to the Commissioner of Indian Affairs and the Secretary of the Interior the following account, and the Secretary made thereon the order which follows the same, and thereupon they were paid the sum of $5,200 as allowed:
    
      The Eastern Band of the Cherolcee Indians to Wallace W. Hollins and Otis F. Presbrey, Dr.
    
    To services rendered tliem in the prosecution of their suits against W. H. Thomas, William Johnston, and James W. Terrell, determined at the November term, 1874, of the Circuit Court of the United States at Ashe-
    ville, N. C., according to the stipulations of-a contract between the said Rollins and Presbrey and the said Eastern Band of the Cherokee Indians, dated the 4th day of May, 1873, and approved, and on file in the Indian Office according to law:
    Upon the amount of the value of the recovery of lands in said suits for the said Indians, $200,000 (two hundred thousand dollars), at 20 per cent.$40,000.00
    Upon the amount of money recovered in said suits for said Indians, from Williain'.Johnston ($8,48(5.00) eight thousand four hundred and eighty six dollars, at 20 per cent. 1, 697.20
    Up.on the amount of money recovered in said suits for said In- ■ dians from James W. Terrell ($2,697.89) two thousand six hundred ninety-seven dollars, at 20 per cent. 539.57
    Total amount dne.:... 42,236.77
    “Dep’t oe the Interior,
    “ Sept. 20, 1875.
    “ The within account is hereby allowed for $5,200, in accordance with the action of the Commissioner of Indian Affairs and the recommendation of the Board of Indian Commissioners, without prejudice to the parties to claim a balance to be still due to them.
    “O. Delano,
    “ Secretary.”
    
    Subsequently the claimants made application for further payment on said account, and the following action was had thereon by the Commissioner of Indian Affairs and the Secretary of the Interior:
    “Department oe the Interior,
    “ Oeeice op Indian Aeeairs,
    “ YfasMngton, November 19, 1875.
    “ Sir : I have the honor to inclose herewith, for appropriate action by the Department, a letter;(with one inclosure) to this office from Messrs. W. W. Eollins and Otis F. Presbrey, dated Washington, D. C., November 17,1875, asking for a payment of $10,000 (ten thousand dollars), on account of their claim for services as attorneys for the Eastern Band of Cherokee Indians, in the recent suits in the United States courts in North Carolina, and stating- that this amount will but little more than re-imburse them for the money actually expende 1 by them (by them) in prosecuting these suits.
    “ Reference is made by them to a letter of the Attorney-General to the House of Representatives (Ex. Doc. IT. of Reps., No. 169), and to a memorandum inclosed' with their letter, to show that the lands recovered by them to .the said Cherokee Indians are estimated to be worth from $140,000 to $205,750, and that in addition to the recovery of lands they recovered to the Indians in said suits the sum of $11,183.89. (See findings Nos. 6 and 7, on page 6 of the printed copy of award herewith.)
    “ It is deemed proper, however, to state that the majority of the commission, of which-Hon. R. B. Yance, M. C., was chairman, valued the lands referred to at $56,700.
    “In this connection I would respectfully submit, for the information of the Department, with the request that the same be returned to this office, together with the letter of Messrs. Rollins and Presbrey, dated 17th instant:
    “ If Minority report and accompanying document (marked A, B, and O, respectively), submitted to this office by Hon. R. B. Yance, M. C., chairman of the special commission appointed to appraise the lands recently recovered to the Eastern Band of Cherokee Indians in North Carolina, dated Riverside, N. C., October 26, 1875, on which the total value of said lands is stated to be $140,000.
    “2. Majority report, with accompanying document, sub-mited to this office by Messrs. James Stevenson and Paul Brodie, members of said commission, dated Washington, D. C., November 12, 1875, in which the total value of said land is stated to be $56,700.
    “ 3. Copy of office letter, dated September 16, 1875, to M. S. Temple, esq., requesting information in regard to the character and value of lands in the Qualla Boundary.
    u 4. Letter to this office from M. S. Temple, esq., in reply to the same, dated November 6,1875.
    •“ 5. Printed copy of the award of the arbitrators, Messrs. Rufus Barringer, John H. Dillard, and T. Ruffin, in the case of the Eastern Band of Cherokees Indians against Thomas and others and Terrell and others, made and submitted on the 23d day of October, 1874.
    “ Tire claim of Messrs. Rollins and Presbrey for compensation is based upon the terms of the contract entered into May 15, 1874, between William W. Rollins and John Ross, principal chief of the Eastern Band of Cherokee Indians, on behalf of said Indians, stipulating for the prosecution of their claims under various acts and treaty stipulations as therein recited,, and a contract of same date between said Eollins and the persons signing’ themselves as chiefs and headmen of the said Eastern Band of Cherokee Indians for the same purpose, executed in accordance with ‘An act regulating the mode of making private contracts with Indians,’ approved May 21, 1872 (Stats, at Large, vol. 17, page 130). The said contracts had the approval of this office and of the Department as to the-6thisection (see office report to Department June 24, 1874, and Department letter to office July 9, 1874), and also such approval of the assignment of one-half of the interest of Mr.. Eollins therein to Otis F. Presbrey. (See office report to Department, August 24, 1874, and Department approval of same-date.)
    “ There has already been paid to Messrs. Eollins and Pres-brey on account of their claim for services as attorneys in this-case the sum of $5,200 (five thousand two hundred dollars). This amount was paid September 23", 1875, and was based upon, the recommendation of the Board of Indian Commissioners.
    “Taking the value of the lands within the Qualla Boundary at the lowest .appraisal, viz, $56,700, and that of the 6,000 acres outside the boundary at an average price for bottom and arable lands, as found by lowest appraisal of Brodie and Stevenson, at $1.50 per acre, amounting to $9,000, and the-sum of $11,183.89, which they have recovered to the Indians according to the award of the court of abitrators, makes.a. total of $76,883.89,20 per cent, of which, according to their contract, is $15,370.70; deduct amount already paid, viz, $5,200;-. balance due on amount found recovered as above, $10,170.
    “The services undertaken and successfully prosecuted by these attorneys were peculiar and difficult. Their value to the-Indians is very clearly and positively asserted by lion. Y. S.. Lusk, U. S. district attorney for the western district of North Carolina; Marcus Irwin, assistant district attorney for same district, and by the three judges, Don. Eufus Barringer, John H. Dillard, and. Thomas Puffin, of the court of arbitration, as-stated by them in communication forwarded to your Department. These two officers of the Department of Justice, and the .three arbitrators, prominent citizens of the State of North Carolina, are well-known gentlemen of high standing for intelligence and probity of character, residing in the vicinity of these Indians and familiar with their history, and with the-great complications and peril in which their rights and interests had become involved, and are thereby cognizant of the-nature and extent of the services rendered by these attorneys under this contract. Aside from their official capacity and special opportunities for thorough acquaintance with the case,, they are known to be in hearty sympathy with the Indians, and have shown a remarkable interest and readiness to assist-this Bureau in its efforts to protect them against wrong, and secure their equities against parties by whose neglect or intent to defraud they were exposed to serious loss.
    “ From the competent and positive statements of these gentlemen, I am satisfied that the claim of the attorneys, now presented, for ten thousand dollars additional does not at least exceed the amount to which they are equitably entitled on the lowest appraisement ever made of the lands recovered for them; but in ordeF to be entirely sure, and to cover any possible overestimate of the area of lands outside the boundary, which are put down at six thousand acres, I respectfully recommend that the account be allowed only in the sum of $9,500.
    “Very respectfully, your obedient servant,
    “Edw. P. Smith,
    “ Commissioner.
    
    “ Hon. SsCUET AH Y OE THE INTERIOR,.”
    “ Department op the Interior,
    “ Washington, D. <7., Nov. 25,1875.
    “Sir: lam in receipt of your communication of the 19th Nov. instant, enclosing requests of Messrs. Bollins and Pres-brey for the payment of $10,000 on account of their claims as attorneys for the Eastern Band of Cherokees, with other enclosures relating to the same matter.
    “ The claim above mentioned is based upon two contracts, bearing date May 15, 1874: One executed by John Boss as chief and the other by Sawuooka and twenty-one others, described as chiefs and headmen of said band.
    “An attentive examination of the contracts and the circumstances under which the same were executed has raised very grave doubts in my mind whether they are sufficient to bind the Eastern Band of Cherokees collectively in any form. But without stopping to determine that question, I find these contracts are prepared in separate clauses, each referring to subjects more or less distinct in their character, in all of which Mr. Bollins undertook to perform services at a uniform rate of compensation for the whole.
    “By the provisions of the act of Congress of May 21,1872, these contracts must be 1 approved in writing thereon by the Secretary of the Interior and Commissioner of Indian Affairs’ before they can have any force or validity whatever.
    “ Each contract, if duly executed, was an entire thing, and could not be altered without thé assent of both parties. The approval required by the statute above mentioned is of the contract as made by the parties.
    “ The approval of a part of the contract only would be in effect the substitution of a new agreement for that made by the parties.
    “ I find that the only approval of the contracts in question was of that part designated as the 6th clause. This was not an approval of the contracts made by the parties, and therefore the contraéis are wholly void, for want of approval by the Secretary of the Interior and the Commissioner of Indian Affairs.
    “But, still further, the services provided for in the 6th clause and claimed to have been rendered by Messrs. Rollins and Pres-brey for the Indians were performed in suits pending at the time the contracts bear date.
    “ These actions were brought by the United States for the benefit of the Indians in the Circuit Court of the U. S. for the western district of North Carolina, under the 11th section of the act of July 15, 1870, by which act the United States undertook to institute and prosecute such suit. No good reason is perceived under the circumstances mentioned i'or permitting these Indians to incur large liabilities in the prosecution of such suit.
    “ Finally, I am fully satisfied from a careful examination of the whole case that the claimants, Messrs. Rollins and Presbrey, have already been paid all that they would justly be entitled to receive lbr the services rendered by them in behalf of the Eastern Band of Cherokees, or any individuals thereof, if these contracts had been duly executed and approved. I am therefore unable to concur in your recommendation that they be paid the sum of $9,600.
    “ I return herewith the enclosures enumerated in your communication.
    “ I am, sir, very respectfully, your obedient servant,.
    “2. Chandler,
    “ Secretary.
    “ To the Commissioner op Indian Aeeairs ”
    Y. Thereafter the claimants again applied for further payment on their claim to the Secretary of the Interior (Secretary Chandler), who re-opened the case, and the following proceed ing took place:
    “ Department op the Interior,
    “ Washington, N. G., July 27th, 1876.
    “ The Attorney-General :
    “ Sir : I have the honor to submit for your opinion the questions of law hereinafter stated, arising upon the following facts:
    “ In 1874 W. W. Rollins entered into two contracts, one with John Ross, as chief of the Eastern Band of Cherokees, and the other with numerous individuals purporting to be principal chiefs and headmen of said band.
    “A copy of the first-named contract is marked “ Exhibit Aw in the appendix to the accompanying argument of Shellabarger & Wilson, counsel for Rollins and Presbrey, and a copy of the second contract is transmitted herewith, marked No. 3.
    
      “I invite your attention to the fact that in the second contract the compensation to be' paid said Eollins is stipulated ‘ not to exceed twenty per cent., to be allowed by the Commissioner of Indian Affairs out of such amounts as he may collect, etc.7
    
    “At the time said contracts were entered into suits were pending in the Circuit Court of the United States for the western district of North Carolina, which were instituted in the spring of 1873 by the district attorney of said district, under section 11 of the act of Congress approved July 15th, 1870 (16 Stats., p. 362).
    “ Prior to the approval of the contracts endorsed thereon by. the Acting Commissioner of Indian Affairs and Acting Secretary of the Interior, on the 17th of June, 1874, the subject-matter of said suits was referred by stipulation of the parties to the arbitrators, who made their award under date of October 24,1874, and the same was confirmed by the order of the court at the following November term thereof.
    “It will be observed that said Eollins signed the submission as attorney for the Eastern Band of Cherokee Indians, but by what authority is unknown to this Department, the contract under which he claims for services rendered the Indians in said suits not having been approved until long after that date.
    “ In March, 1875, Messrs. Eollins & Presbrey presented a claim to this Department for $20,000 on account of services rendered under said contracts. The claim was referred to the Commissioner of Indian Affairs by letter of my predecessor dated April 23, 1875, a copy of which is transmitted herewith, marked No. 4.
    “Pursuant to the direction of the Secretary of the Interior, the claim was referred to the Board of Indian Commissioners, who reported thereon in favor of allowing the claimants the sum of $5,200, a copy of which is herewith transmitted, marked No. 5, and may be found in the seventh annual report of said board at page 18. It will be observed that the approval of the board was for the payment of said sum in full of all demands under said claim.
    “ The Commissioner of Indian Affairs thereupon proceeded to allow said claimants the said sum, directing the same to be paid out of the appropriation for the North Carolina Cherokees, contained in 18 Stat., p. 447. A. copy of said account, with the endorsement thereon, is herewith transmitted, marked No. 6.
    “ Directly after the appointment of the present Secretary of the Interior, said claimant again applied for the payment of a further sum upon said contracts, upon which application the Commissioner of Indian Affairs reported in favor of the allowance of $9,600, a copy of which report is herewith transmitted, marked No. 7, in which recommendation the Secretary of the Interior refused to concur and held the contracts invalid for reasons stated in. bis letter of Nov. 24th, 18T5, a copy of which is herewith transmitted, marked No. 8.
    “ Since that date the Secretary has ordered the case re-opened and granted a rehearing to said claimants. The claim is now pending before him for decision. I therefore desire your opinion upon the following questions:
    “ Was the contract between John Ross and claimant Rollins duly approved by the Commissioner of Indian Affairs and the Secretary of the Interior as required by law ?
    “ Was the approval endorsed by the Commissioner oflndian Affairs and the Secretary of the Interior upon the contracts made by the chiefs and headmen such an approval as is required by section 2103 of the Revised Statutes 2
    “ If the contracts are valid can the claimants be lawfully paid for any services rendered by said Rollins prior to the approval of said contracts by this Department.
    “ Should the claimants in making proof of services rendered under said contracts x’ursuant to section 2104, be confined to such acts of service as had been performed subsequent to the date of the approval of the contracts 1
    
    “ No money having been recovered by the Indians, is it competent for this Department to authorize and direct payment upon the contracts in anything besides land?
    “If a valid demand shall be found to exist in favor of the claimants which may be paid in money, can such payment be lawfully made from the appropriation of March 3rd, 1875, 18 Stats, p. 447 ?
    “In addition to the papers already enumerated, reference may be had to copies of papers bearing more or less directly upon the case, included in the appendix to the brief above mentioned, and at the request of the claimants I also enclose Executive Document No. 169, 43rd Congress 2nd session, and a copy of an affidavit made by said Rollins Sept. 17, 1875, filed with the Commissioner of Indian Affairs, which copy is marked No. 7.
    “ Yery respectfully, your obedient servant,
    “ Chas. T. Gorham,
    “ Acting Secretary.”
    In reply to the foregoing letter the Attorney-General advised that the sixth section of the contract, set out in Finding I, had been duly approved, and that another contract, not material in this case and not set out in the findings, had not been duly approved. (15 Opin. Att’y-Gen’l, 585.)
    The claimants again, at different times, applied for further payment, and in reply to a report from the Commissioner of Indian Affairs, made at the request of the Secretary of the Interior, the Secretary took the following action :
    
      “ Department oe the Interior,
    “ Washington, April, 23,1884.
    “ The Commissioner oe Indian Aeeairs :
    “ Sir : I have considered the papers presented in ,yonr report of the 14th instant, in the claim of Messrs. Rollins and Presbrey for an unascertained balance claimed to be due them for legal services alleged to have been rendered to the Eastern band of Cherokee Indians under their contracts of May 15,1874.
    “ You suggest that perhaps the case is one that may properly be referred to the Court of Claims under the second section of the Act of March 3, 1883 (22 Stat., 485), entitled ‘An act to afford assistance and relief to Congress and the Executive Departments in the investigations of claims and demands against the Government,’ and you recommend if the Department does not find sufficient authority under that act to send the case to the Court of Claims that Congress be asked to grant the necessary authority to enable the claimants to bring suit in that tribunal, and for that purpose a draft of a bill is submitted.
    “ After a careful consideration of the case, I am of the opinion that the claim is one that may be properly submitted to the Court of Claims for finding the facts and conclusions of law involved therein under the provisions of the second section of the act of March 3,1883, above referred to.
    “You will therefore prepare all the vouchers, papers, proofs, and documents pertaining thereto, and which show fully the matters in dispute, and forward the same to this Department, to be transmitted to the Court of Claims.
    “ Yery respectfully,
    “ IT. M. Teller,
    “ Secretary.”
    “ Department oe the Interior,
    “ Washington June 19, 18S4.
    “ To the Chibe Justice oe the Court oe Claims :
    “ Sir : I have the honor to transmit herewith certified copies of papers on file and of record in this Department pertaining to the matter of an unascertained balance claimed by Messrs. Rollins and Presbrey to be due to them lor legal services alleged to have been rendered to the Eastern Band of Cherokee Indians, with letter of 18th instant, from the office of Indian Affairs, relating thereto.
    “ The matter is respectfully transmitted for the consideration of the Court of Claims and action in accordance with the provisions of section 2 of the act of March 3, 1883, entitled ‘An act to afford assistance and relief to Congress and the Executive Departments,’ etc.
    “ Yery respectfully,
    “ H. M. Teller,
    “ Secretary.”
    
      
      Mr. T. E. W. McPherson (with whom was Mr. James E. Mer-riman) for the claimants.
    
      Mr. Lewis Goehr an (with whom was Mr. Assistant Attorney-General EoioarS) for the defendants:
    (1) It is contended by the defendants that John Ross, by whom the contract was signed upon which the suit was brought, was not, when the said contract was executed, chief of the Eastern Band of Cherokees, and had no power or authority to execute such contract for or on behalf of said band of Cherokees.
    (2) But admitting that John Ross was the chief of the said Eastern Band of Cherokees at the time the said contract was executed, and was authorized and empowered, as such chief, to make said contract with the claimant, Roilins, it is contended that the contract made by the parties did not receive the required approval of the Commissioner of Indian Affairs and the Secretary of the Interior, and that no claim is maintainable under the sixth clause thereof, which was approved by the said Commissioner and Secretary.
    (3) It is contended by the defendants that no recovery can be had under a quantum meruit, because the BtaUite of May 21, 1872 (17 Stat. L., 138; Rev. Stat., § 2103) provides the means by which and only by which contracts such as that in question shall be executed, and no claim for services such as those alleged to have been rendered by the claimant is legal or enforceable except under a contract executed in accordance with said statute and duly approved.
   Richardson, Ch. J.,

delivered the opinion of the court:

This case was transmitted to the court by the Secretary of the Interior, under the provisions of the second section of the <£ Bowman Act ” of 1883, chapter 110 (22 Stat. L., 486), which authorizes the head of any Executive Department to transmit to the Court of Claims any claim or matter pending therein which may involve controverted questions of law or fact.

It is urged on the part of the defendants that the controversy involved in the case was finally determined and settled by a former Secretary of the Interior, and could not be re-opened, reexamined, and reconsidered by his successor in office, and that this court can do no more under such a transmission than to make a- finding to that effect, and to decide and report to the Secretary of the Interior for his guidance and action that the matter is res judicata and he has no further jurisdiction therein.

It has long been held in the Executive Departments that when a claim or controversy between the United States and individuals therein pending has once been fully considered, and final action and determination had thereon by any executive officer having jurisdiction of the same, it can not be re-opened, set aside, and a different result ordered by any successor of such officer, except for fraud, manifest error on the face of the proceedings, such as a mathematical miscalculation or newly discovered evidence, presented within a reasonable time and under such circumstances as would be a sufficient cause for granting a new trial in a court of law. This ruling and practice of the Departments has been approved elsewhere and has been sustained by the courts. (9 Opin. Att’y. Gen., 34; 12 id., 172-358; 14 id., 387, 450; 14 id., 275; 15 Pet., 401; Lavalette's Case, 1 O. Ols. R., 147; Jackson's Case, 19 id., 504; State of Illinois Case, 20 id., 342; McKee’s Case, 12 id., 560; Day's Case 21 id., 264, and the opinion of the Judiciary Committee of the Senate, reported by Senator and Judge David Davis, quoted in Jackson’s Case above referred to.)

But it has never been doubted that any public officer in the Departments may correct his own errors, and open, reconsider, and reverse in whole or in part any case decided by himself.

It appears that the present controversy arose when Mr. Delano was Secretary of the Interior. The claimants presented an account for $42,236.77, which was examined and reported upon by the Commissioner of Indian Affairs and other officers of the Department, and when it reached the Secretary he made upon it the following indorsement (Finding IV):

“Dep’t or the Interior, Sept. 20,1875.
“The within account is hereby allowed for $5,200, in accordance with the action of the Commissioner of Indian Affairs and the recommendation of the Board of Indian Commissioners, without prejudice to the parties to claim a balance to be still due them.
“C. Delano, Secretary.”

This certainly was not a final determination of the merits of the claim, but left the same open for future adjustment.

Subsequently the matter was again considered, reported upon by the Commissioner of Indian Affairs to the Secretary of the Interior, then Mr. Secretary Chandler, recommending the additional payment of $9,500. Upon that report and recommendation, the Secretary, on the 24th of November, 18T5, in a communication set out in fall at the end of the fourth finding, decided that the contract with the Indians upon which the claim was founded had never been legally approved by the Secretary of the Interior and Commissioner of Indian Affairs, as required by law, and that he was satisfied that claimants “had already been paid all that they would justly be entitled to receive for the services rendered by them in behalf of the Eastern Band of Cherokees, or any individual thereof, if those ■contracts had been duly executed and approved.”

Within a few months after that decision, on the 27 th of July, 187G, while Mr. Chandler was still Secretary, the Acting Secretary addressed a letter to the Attorney-G-eneral, set out in full in Finding Y, in which, after stating the proceedings of the Department down to November 24, 1875, when Secretary Chandler disposed of the matter by his letter of that date, he says: “Since that date the Secretary has ordered the case reopened, and granted a rehearing to said claimants. Their claim is now pending before him for decision. I therefore desire your opinion upon the following questions,” then and there propounded.

The Acting Secretary was, for the time being and in this matter, the lawful head of the Department, and his action in referring the case to the Attorney-General, with the statement that the Secretary had ordered it to be re-opened and had granted a rehearing, is conclusive proof of that fact, whether it was done by himself or by order of Secretary Chandler, either in writing or orally. It was so regarded by Secretary Teller, who treated it as pending and unfinished business, and after giving some consideration to it, finally transferred it to this court under the Bowman Act.

In onr opinion the case was not res judicata, but was pending when so transmitted, and we are required to pass upon the merits.

The defendants contend that the sixth article of the contract upon which this elaim is founded, although approved as required by Revised Statutes, section 2103, the approval was not warranted by law and is of no force, because, as they argue, tbe whole contract of six articles was an entirety and could be approved or disapproved in whole and not in separate parts. This question first arose in the Interior Department under the administration of Secretary Chandler, and, with other questions upon the same and another contract between the parties, not material to this case, was referred to the Attorney-General for his opinion.

The Attorney-General, in an opinion approved by him, and written and signed by Solicitor-General Phillips, replied as follows:

“ In answer to the first question, I have to say that the above contract with Boss was duly approved. Eollins contracted to do six distinct things upon-a consideration apportioned to each. The authorities hoid, uniformly, I believe, that such a contract is separable. Therefore, in case it needs approval or ratification, this may be limited to one of such things alone, or to more than one, or may extend to all, with the effect of validating the contract for the part approved and no more. (15 Opin. Att’y-Gen., 589.)”

It is sufficient to say that we concur in these views, and hold the contract to have been legally approved.

The defendants further object that John Eoss, the principal' chief, who executed the contract on the part Of the Indians, was without authority to agree to the provisions of the sixth article, and so that article is not binding upon the Indians.

The resolutions of the council, set out in Finding I, do not seem to cover exactly the matters contained in the sixth article of the contract, but the principal chief, Eoss, in mating the contract, did not rely wholly upon those resolutions, but claimed in the contract itself to act “for and on behalf of the Eastern Band of the Cfterokees, and by virtue of his authority as chief of said band.”

What were the powers and duties of the chief of the band do not appear in the case, and we have no means of knowing whether or not he exceeded his authority. But in view of the fact that his authority was recognized by the district judge of the western district of North Carolina, before whom this contract was executed, as required by law, and that the contract was approved by the Commissioner of Indian Affairs and the Secretary of the Interior, and that his authority was never questioned in all the controversies between the parties while the case was long pending in the Interior Department, and that the Indians have had the benefit of the claimants’ services and aré enjoying the fruits of their labor under the contract, we are constrained to hold that his authority is sufficiently established.

The principal controversy between the parties in the Interior Department related to the value of the lands acquired for the Indians. That we have established by the findings; and no question of law arises thereon.

The opinion of the court is that the claimants are entitled to the sum of $10,176.77 beyond what has been paid to them. The clerk will certify these findings, conclusion of law, and this opinion to the Secretary of the Interior for his guidance and action.  