
    THE CHEROKEE NATION v. THE UNITED STATES. THE EASTERN CHEROKEES v. THE SAME. THE EASTERN AND EMIGRANT CHEROKEES v. THE SAME.
    [Nos. 23199, 23214, 23212.
    Decided March 20, 1905.]
    
      On the Proofs.
    
    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 $1,134,248.23, 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 Cherokees instead of being applied to the expenses of their removal under the treaty of 1835.
    
      I.Tlie account contemplated and required by tlie agreement between the United States and the Cherokee Nation,, ratified by Congress (27 Stat. L., p. 040, §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.
    II.Before there can be an award having the element of finality there must be something mutually submitted by the parties to somebody.
    III.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.
    IY. 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.
    V. 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 Reporters'1 statement of the case:
    The following are the facts of the case as agreed upon by the parties and accepted and found by the court:
    I. Section 68 of the act of Congress of July 1, 1902, entitled “An act to provide for the allotment of the lands of the Cherokee Nation and for the disposition of town sites therein described, and for other purposes ” (32 Stat. L., 726), is as follows:
    “ Jurisdiction is hereby conferred upon the Court of Claims to examine, consider, and adjudicate, with a right of appeal to the Supreme Court of the United States by any party in interest feeling aggrieved at the decision of the Court of Claims, any claim which the Cherokee tribe, or any band thereof, arising under treaty stipulations, may have against the United States, upon which suit shall be instituted within two years after the approval of this act; and also to examine, consider, and adjudicate any claim which the United States may have against said tribe, or any band thereof. The institution, prosecution, or defense, as the case may be, on the part of the tribe or any band, of any such suit, shall be through attorneys employed and to be compensated in the manner prescribed in sections twenty-one hundred and three to twenty-one hundred and six, both inclusive, of the Revised Statutes of the United States, the tribe acting through its principal chief in the employment of such attorneys, and the band acting through a committee.recognized by the Secretary of the Interior. The Court of Claims shall have full authority, by proper orders and process, to make parties to any such suit all persons whose presence in the litigation it may deem necessary or proper to the final determination of the matter in controversy, and any such suit shall, on motion of either party, be advanced on the docket of either of said courts and be determined at the earliest practicable time.”
    The act of March 3, 1903, entitled “An act making appropriations for the current and contingent expenses of the Indian Department and for fulfilling treaty stipulations • with various Indian tribes for the fiscal year ending June thirtieth, nineteen hundred and four, and for other purposes ” (32 Stats., 99G), contains the following provisions:
    “ Section sixty-eight of the act of Congress entitled ‘An act to provide for the allotment of the lands of the Cherokee Nation, for the disposition of town sites therein and for other purposes,’ approved July first, nineteen hundred and two, shall be so construed as to give the Eastern Cherokees, so called, including those in the Cherokee Nation and those who remained east of the Mississippi River, acting together or as two bodies, as they may be advised, the status of a band or bands, as the case may be, for all the purposes of said section: Provided, That the prosecution of such suit on the part of the Eastern Cherokees shall be through attorneys employed by their proper authorities, their compensation for expenses and services rendered in relation to such claim to be fixed by the Court of Claims upon the termination of such suit; and said section shall be further so construed as to require that both the Cherokee Nation and said Eastern Cherokees, so called, shall be made parties to any suit which may be instituted against the United States under said section upon the claim mentioned in House of Representatives Exeartive Document Numbered Three hundred and nine of the second session of the Fifty-seventh Congress; and if said claim shall be sustained in whole or in part, the Court of Claims, subject to the right of appeal named in said section, shall be authorized to render a judgment in favor of the rightful claimant, and also to determine, as between the different claimants, to whom the judgment so rendered equitably belongs, either wholly or in part, and shall be required to determine whether, for the purpose of participating in said claim, the Cherokee Indians who remained east of the Mississippi River constitute a part of the Cherokee Nation or of the Eastern Cherokees, so called, as the case may be.”
    The claim mentioned in said H. R. Ex. Doc. No. 309, 57th Cong., 2d sess., is therein referred to and described as follows:
    “Resolved, That the Attorney-General of the United States is hereby requested to advise the House of Representatives, with all convenient speed, in the case of the Eastern Cherokees against the United States, whether or not the award rendered under the Cherokee agreement of December 19, 1891, ratified by act of Congress approved March 3, 1893, as set forth in TI. R. Ex. Doc. No. 181, 53d Cong., 3d sess., and the findings of fact of the Court of Claims of April 28, 1902, is res ad judicata; to review the opinion of the Department- of Justice of December 2, 1895, and advise the House of Representatives, whether the reasons set forth in that opinion now constitute a valid defense for the payment of said award.”
    II. Prior to the year A. D. 1808 the Cherokee Nation of Indians was domiciled in. Georgia, Alabama, Tennessee, North Carolina, and South Carolina, where they owned and possessed about 14,000,000 of acres of land. In that year deputations from the upper and lower Cherokee towns, duly authorized by their nation, went to the city of Washington, the deputies of the former to make known to the President of the United States the anxious desire of those whom they represented to engage in the pursuits of agriculture and civilized life in the country which they then occupied, and to request the establishment of a division line between the upper and. lower towns, so that they might the more readily begin the establishment of fixed laws and a regular government; the deputies of the latter to make known to the President their desire to continue the hunter life, and, owing to the scarcity of game where they then lived, their wish to remove across the Mississippi River on some vacant lands of the United States.
    After maturely considering the petitions of both parties, on January 9,1809, the President answéred the same, saying that—
    “ The United States, my children, are the friends of both parties, and, as far as can be reasonably asked, they are willing to satisfjr the wishes of both. Those who remain may be assured of our patronage, our aid, and good neighborhood. Those who wish to remove are permitted to send an exploring party to reconnoiter the country on the waters of the Arkansas and White rivers, and the higher up the better, as they will be the longer approached by our settelments, which will begin at the mouths of those rivers. * * *
    “ When this party shall have found a tract of country suiting the emigrants and not claimed by other Indians, we will arrange with them and you the exchange of that for a just portion of the country they leave, and to a part of which, proportioned to their numbers, they have a right.”
    Relying on the promises of the President of the United States, as above recited, the Cherokees who wished to remove explored the country on the west side of the Mississippi and made choice of and settled themselves down upon United States lands on the Arkansas and White rivers to which no other tribe of Indians had any just claim, and subsequently sent their agents,’ duly empowered to execute a treaty relinquishing to the United States all their right, title, and interest to all lands which they had left, or which they were about to leave, and belonging to them as a part of the Cherokee Nation, in all of which lands, proportioned to their numbers, they had an equal right.
    To the treaty of cession,, which was subsequently entered into on the 8th day of July, 1817, the chiefs, headmen, and warriors of the Cherokee Nation east of the Mississippi, as well as the chiefs, headmen, warriors, and deputies cf the Cherokees on the Arkansas River, were parties.
    
      By article 1 of said treaty “ the chiefs, headmen, and warriors of the whole Cherokee Nation ” ceded to the United States certain lands described therein, “ in part of the proportion of land in the Cherokee Nation east of the Mississippi Biver, to which those now on the Arkansas and those about to remove there are justly entitled.”
    By article 2 said chiefs, headmen, and warriors also ceded to the United States other lands therein described.
    “Aet. 4. The contracting parties do also stipulate that the annuity due from the United States to the whole Cherokee Nation for the year one thousand eight hundred and eighteen is to be divided between the two parts of the nation in proportion to their numbers, agreeably to the stipulations contained in the third article of this treaty; and to be continued to be divided thereafter in proportion to their numbers ; and the lands to be apportioned and surrendered to the United States agreeably to the aforesaid enumeration, as the proportionate part, agreeably to their numbers, to which those who have removed, and who declare their intention to remove, have a just right, including these with the lands ceded in the first and second articles of this treaty.
    “Aet. 5. The United States bind themselves, in exchange for the lands ceded in the first and second articles hereof, to give to that part of the Cherokee Nation on the Arkansas as much land on said river and White Biver as they have, or may hereafter receive from the Cherokee Nation east of the Mississippi, acre for acre, as the just proportion due that part of the nation on the Arkansas, agreeably to their numbers ; which is to commence on the north side of the Arkansas Biver, at the mouth of Point Bemove or Budwell’s old place; thence, by a straight line, northwardly, to strike Chataunga Mountain, or the hill first above Shield’s ferry, on White Biver, running up and between said rivers for complement, the banks of which rivers to be the lines; and to have the above line, .from the point of beginning to the point on White Biver, run and marked, which shall be done soon after the ratification of this treaty; and all citizens of the .United States, except Mrs. P. Lovely, who is to remain where she lived during life, removed from within the bounds as above named. And it is further stipulated that the treaties heretofore between the Cherokee Nation and the United States are to continue in full force with both parts of the nation, and both parts thereof entitled to all the immunities and privilege which the old nation enjoyed under the aforesaid treaties, the United States reserving the right of establishing factories, a military post, and roads within the boundaries above defined.
    “Art. 6. The United States do also bind themselves to give to all the poor warriors who may remove to the western side of the Mississippi River one rifie gun and ammunition, one blanket, and one brass kettle; or, in lieu of the brass kettle, a beaver trap, which is to be considered as a full compensation for the improvements 'which they may leave, which articles are to be delivered at such point as the President of the United States may direct; and to aid in the removal of the emigrants, they further agree to furnish flat-bottomed boats and provisions sufficient for that purpose; and to those emigrants whose improvements add real value to their lands, the United States agree to pay a full valuation for the same, which is to be ascertained by a commissioner appointed by the President of the United States for that purpose, and paid for as soon after the ratification of this treaty as practicable. The boats and provisions promised to the emigrants are to- be furnished by the agent on the Tennessee River, at such time and place as the emigrants may notify him of, and it shall be his duty to furnish the same.
    “ÁRT. 11. It is further agreed that the boundary lines of the lands ceded to the United States by the first and second articles of this treaty, and the boundary line of the lands ceded by the United States in the fifth article of this treaty, is to be run and marked by a commissioner or commissioners appointed by the President of the United States, who shall be accompanied by such commissioners as the Cherokees may appoint, due notice thereof to be given to the nation.” (Treaty of Juty 8, 1817, between the United States and Cherokee Nation; 7 Stat. L., 156. Indian Affairs. Laws and Treaties (1903), vol. 2, p. 96.) ■
    III. February 27, 1819, a treaty was entered into between the United States and the “ chiefs and headmen of the Cherokee Nation of Indians, duly authorized and empowered by said nation,” the preamble of which is as follows:
    “ Whereas a greater part of the Cherokee Nation have expressed an earnest -desire to remain on this side of the Mississippi, and being desirous", in order to commence those measures which they deem necessary to the civilization and preservation of their nation, that the treaty between the United States and them, signed the eighth of July, eighteen hundred and seventeen, might, without further delay, or the trouble or expense of taking the census, as stipulated, in the said treaty, be finally adjusted, have offered to cede to the United States a tract of country at least as extensive as that which they probabty are entitled to under its provisions, the contracting parties have agreed to and concluded the following articles.”
    By Article I the Cherokee Nation cedes to the United States the lands therein described, and the parties mutually declare “ that the lands hereby ceded by the Cherokee Nation are in full satisfaction of all claims which the United States have on them, on account of the cession to a part of their nation who have or may hereafter emigrate to the Arkansas; and this treaty is a final adjustment of that of the eighth of July, eighteen hundred and seventeen.”
    By Article VI of said treaty it was estimated that the Cherokees who had emigrated and those who had enrolled for emigration together constituted one-third part in numbers of the whole nation. (I Stats., 195; Indian Affairs. Laws and Treaties, v’ol. 2, pp. 124, 126.)
    IV. On May 6, 1828, the United States entered into a treaty with the “ Cherokee Nation of Indians west of the Mississippi,” the preamble of which is as follows :
    “ Whereas, it being the anxious desire of the Government of the United States to secure to the' Cherokee Nation of Indians, as well those now living within the limits of the Territory of Arkansas as those of their friends and brothers who reside in States east of the Mississippi and who may wish to join their brothers of thb West, a permanent home, and which shall, under the most solemn guarantee of the United States, be and remain theirs forever — a home that shall never, in all future time, be embarrassed by having-extended around it the lines, or placed over it the jurisdiction of a Territory or State, nor be pressed upon by the extension, in any way, of any of the limits of any existing Territory or State; and
    “ Whereas the present location of the Cherokees in Arkansas being unfavourable to their present repose, and tending, as the past demonstrates, to their future degradation and misery; and the Cherokees being anxious to avoid such consequences, and yet not questioning their right to their lands in Arkansas, as secured to them by treaty, and resting also upon the pledges given them by the President of the United States and the Secretary of War, of March, 1818, and 8th October, 1821, in regard to the outlet to the west, and, as may be seen on referring to the records of the War Department, still being anxious to secure a permanent home and to free themselves and their posterity from- an embarrassing con-nexion with the Territory of Arkansas, and guard themselves from such connexions in future; and
    “ Whereas it being important, not to the Cherokees only, but also to the Choctaws, and in regard also to the question which may be agitated in the future respecting the location of the latter, as well as the former, within the limits of the Territory or State of Arkansas, as the case may be, and their removal therefrom; and to avoid the cost which may attend negotiations to rid the Territory or State of Arkansas whenever it may become a State, of either or both of those tribes, the parties hereto do hereby conclude the following articles, viz: ”
    Article 1 defines the western boundary line of Arkansas.
    “ART. 2. The United States agree to possess the Cherokees ancl to guarantee it to them forever, ancl that guarantee is hereby solemnly pledged, of seven millions of acres of land,” all west of the western boundary of Arkansas ancl bounded as therein set forth, and “ in adclition to the seven millions of acres thus provided for, and bounded, the United States further guarantee to the Cherokee Nation a perpetual outlet west, ancl a free ancl unmolested use of all the country lying west of the western boundary of the above-described limits, ancl as far west as the sovereignty of the United States and their right of soil extend.”
    “Art. 3. The United States agree to have the lines of the above cession run without delay,” and “ to remove immediately after the running of the eastern line from the Arkansas Diver to the southwest corner of Missouri, all white persons from the west to the east of said line * * * and also to
    keep all such from the west of said line in future.”
    By article 5 it was agreed—
    “ that the United States, in consideration of the inconvenience and trouble attending the removal, and on account of the reduced value of a great portion of the land herein ceded to the Cherokees, as compared with that of those in Arkansas which were made theirs by the treaty of 1817 ancl the convention of 1819, will pay to the Cherokees, immediately after their removal, which shall be within fourteen months of the date of this agreement, the sum of fifty thousand dollars; also an annuity for three years of two thousand dollars, towards defraying the cost ancl trouble which may attend upon going after and. recovering their stock which may stray into the Territory in quest of the pastures from which they may be driven; also eight thousand seven hundred and sixty dollars for spoliations committed on them (the Cherokees), which sum will be in full of all demands of the kind up to this date,” * * * and “ to pay two thousand dollars annually to the Cherokees for ten years, to be expended under the direction of the President of the United States, in the education of their children in their'own country, * * * also one thousand toAvards the purchase of a printing press and type.” * * *
    “Airr. 7. The chiefs and headmen of the Cherokee Nation aforesaid, for and in consideration of the foregoing stipulations and provisions, do hereby agree, in the name and behalf of their nation, to give up, and they do hereby surrender, to the United States, and agree to leave the same within fourteen months, as hereinbefore stipulated, all the lands to which they are entitled in Arkansas and which were secured to them by the treaty of 8th January (July), 1817, and the convention of the 27 February, 1819.
    “Art. 8. The Cherokee Nation, west of the Mississippi, having by this agreement freed themselves from the harassing and ruinous effects consequent upon a location amidst a white population, and secured to themselves and to their posterity, under the solemn sanction of the guarantee of the United States, as contained in this agreement, a large extent of unembarrassed country; and that their brothers yet remaining in the States may be induced to join them and. enjoy the repose and blessings of such a State in the future, it is further agreed, on the part of the United States, that to each head of a Cherokee famity now residing within the chartered limits of Georgia, or of either of tire States east of the Mississippi, who may desire to remove west, shall be given, on enrolling himself for emigration, a good rifle, a blanket and kettle, and five pounds of tobacco (and to each member of his family one blanket) ; also a just compensation for the property he may abandon,, to be assessed by persons to be appointed by the President of the United States. The cost of the emigration of all such shall also be borne by the United States, and good and suitable ways opened, and. provisions procured for their comfort, accommodation, and support by the way, and provisions for twelve months after their arrival at the agency; and to each person, or head of a family, if he take along with him foqr persons, shall.be paid immediately on his arriving at the agency and reporting himself and his family, or followers, as emigrants, and permanent settlers, in addition to the above, pro vided he and they shall have emigrated from within the chartered limits 
      
      of the State of Georgia, the sum of fifty dollars, and this sum in proportion to any greater or less number that may accompany him from within the aforesaid chartered limits of the State of Georgia.”
    Pursuant to the terms of this treaty, the Cherokee Nation west of the Mississippi, peaceably removed from their lands on the Arkansas and White rivers, in the Territory of Arkansas, to the lands newly ceded to them in the Indian Territory. The* moneys agreed to be paid to them under the fifth article have be'en fully paid and no claim is now made on such account: (7 Stats., 311; Ind. Affairs, Laws and Treaties, vol. 2, pp. 206-208; H. E. Ex. Doc. 182, 53d Cong., 3d sess., 4; Ned Book, p. 65).'
    Y. By treaty of February" 14, 1833, between the United States and the “ chiefs and headmen of the Cherokee Nation of Indians west of the Mississippi,” a change in the boundary lines of the lands ceded under the treaty of 1828 was agreed upon to adjust a conflict with the grant previously made to the Creek Indians, and by article 1 of said treaty of 1833 the United States, in addition to renewing its guarantee and pledge of 7,000,000 acres of land to the Cherokees, further agreed that—
    “ In addition to the seven million of acres of land thus provided for and bounded, the United States further guarantee to the Cherokee Nation a perpetual outlet west and a free and unmolested use of all the country tying west of the western boundary of said seven millions of acres, as far west as. the sovereignty of the United States and their -right of soil extend, * * * and letters patent shall be issued by the United States as soon as practicable for the land hereby guaranteed.”
    By article 5 of said treaty it was provided that—
    “ These articles of .agreement and convention are to be considered supplementary to the treaty before mentioned between the United States and the Cherokee Nation west of the Mississippi dated sixth of May, one thousand eight hundred and twenty-eight, and not to vary the rights of the parties to said treaty any further than said treaty is inconsistent with the provisions of this treaty now concluded, or these articles of convention or agreement.” (7 Stats., 414; Ind. Affairs Laws, and Treaties (1903), pp. 283, 285.)
    
      VI. On or about February 28, 1835, a delegation of the Cherokee Nation east of the Mississippi, having full, power and authority to conclude a treaty with the United States, stipulated and agreed with the Government of the United States to submit to the Senate the matter of the amount which should be allowed to their nation for their claims and for.a cession of their lands east of the Mississippi Fiver, agreeing for themselves to abide by the award of the Senate of the United States and to recommend the same to their people for their final determination.
    The Senate on March 6, 1835, by resolution, advised that “ a sum not exceeding five millions of dollars be paid to the Cherokee Indians for all their lands and possessions east of the Mississippi Fiver.”
    The Cherokee delegation, after the award of the Senate had been made, were called upon to submit propositions as to its disposition to be arranged in a treaty, but they declined to do so, insisting that the Senate had been misled to the injury of the Cherokees, and that the matter of said award “ should be referred to their nation and there, in general council, to deliberate and determine on the subject in order to insure harmony and good feeling among themselves.” (7 Stats., 478; Ind. Affairs (1903), p. 324; Sen. Ex. Doc. 215, 56th Cpng., 1st sess., p. 77.)
    On or about March 14, 1835, a certain other delegation of Cherokees who represented that portion of the nation east who were in favor of emigrating to the Cherokee country west of the Mississippi, but had no authority or power from the nation generally, entered into propositions for a treaty with John F. Schermerhorn, commissioner on the part of the United States, which they agreed to submit to the nation for final action and determination.
    Among other things included in the .draft of the proposed treaty, it was proposed that the sum of $5,000,000 should be paid to the members of the Cherokee Nation east for their lands and possessions in accordance with the above-quoted resolution or “ award ” of the Senate, but it was further proposed that there should be deducted from said five millions the sum of $255,000 to defray the expenses of removing the members of the nation to the west. (Sen. Ex. I)oc. 215, 56tli Cong., 1st sess., pp. 81-82.)
    The proposed treaty was unanimously rejected by the Cherokee National Council for the reason that the expense of removal was thereby proposed to be deducted from the fund of $5,000,000. (Sen. Ex. Doc. 215, 56th Cong., 1st sess., p. 83; Sen. Ex. Doc. 120, 25th Cong., 2d sess., 459.)
    During the consideration of this proposed treaty by the Cherokee council members thereof a letter from President Jackson, bearing date March 16,1835, was read to them purporting to explain tlie proposed treaty. That letter is as follows:
    “ I shall in the course of a short time appoint commissioners for the purpose of meeting the whole body of your people in council. They will explain to you more fully my views and the nature of the stipulations which are offered to you.
    “ These stipulations provide—
    “ 1st. For an addition to the country alr.eady assigned to you west of the Mississippi, and for the conveyance of the whole of it, by patent, in fee simple, and also for the security of the necessary political rights, and for preventing white persons from trespassing upon you.
    “ 2d. For the payment of the whole value to each individual of his possessions in Georgia, Alabama, North Carolina, and Tennessee.
    “ 3d. For 'the removal, at the expense of the United States, of your whole people; for their subsistence for a year after their arrival in their new country and for a gratuity of one hundred and fifty dollars to each person.
    “ 4th. For the usual supply of rifles, blankets, and kettles.
    “ 5th. For the investment of the sum of four hundred thousand dollars, in order to secure a permanent annuity.
    “ 6th. For adequate provisions for schools, agricultural instruments, domestic-'animals, missionary establishments, the support of orphans, etc.
    “ 7th. For the payment of claims.
    “ 8th. For granting^ pensions to such of your people as have been disabled in "the service of the United States.
    “ These are the general provisions contained in the arrangement; but there are many other details favorable to you which I do not stop here to enumerate, as they will be placed before you in the arrangement itself. Their total amount is four million five hundred thousand dollars, which, added to the sum of five hundred thousand dollars, estimated as the value of the additional land granted yon, makes five millions of dollars — a sum, if equally divided among all your people east of the Mississippi, estimating them at ten thousand. which I believe is their full number, would give five hundred dollars to every man, woman, and child in your nation. There are few separate communities whose property if divided would give to the persons composing them such ap amount.” (Senate Doc. 215, 56th Cong., 1st sess., 82.)
    YII. December 29, 1835, a treaty was drawn up between the United States and the “ chiefs, headmen, and people of the Cherokee tribe of Indians,” which treaty is commonly called the “ Treaty of New Echota.”
    Neither the “ Western Cherokees,” or “ Old Settlers,” nor the great body of the “ Eastern Cherokees ” were parties to this treaty and they at all times up to the making of the treaty of 1846 repudiated it on the ground that its execution had úot been authorized by them or their representatives in council.
    The small number of Cherokees east of the Mississippi who negotiated the treaty were called or styled the “ Treaty Party.”
    It was provided, among other things, by this treaty, as follows:
    “Aeticle 1. The Cherokee Nation hereby cede, relinquish, and convey to the United States all the lands owned, claimed, or possessed by them east of the Mississippi River, and hereby release all their claims upon the United States for spoliations of every kind for and in consideration of the sum of five millions of dollars, to be expended, paid, and invested in the manner stipulated and agreed upon in the following articles. But as a question has arisen between the commissioners and the Cherokees whether the Senate in their resolution by which they advised ‘ that a sum not exceeding five millions of dollars be paid to the Cherokee Indians for all their lands and possessions east of the Mississippi River ’ have included and made any allowance or consideration 'for claims for spoliations, it is therefore agreed on the part of the United States that this question shall be again submitted to the Senate for their consideration and decision, and if no allowance was made for spoliations, that then an additional sum of three hundred thousand dollars be allowed for the same.”
    
      ART. 2. That as it was apprehended that the lands west of the Mississippi which the United States by treaty of May 6,1828, and supplemental treaty of February 14, 1838, guaranteed and secured to be conveyed by patent “ to the Cherokee Nation of Indians ” did not contain a sufficient quantity of land for the accommodation of the whole nation on their removal west, the United States, in consideration of $500,000, agreed to convey to said Indians by patent in fee simple a further tract of land estimated to contain 800,000 acres.
    ART. 3. The lands ceded by the treaty of February 14, 1833, including the outlet, and th'ose ceded by this treaty should be included in one patent executed to the Cherokee Nation of Indians by the President of the United States.
    “Art. 8. The United States also agree and stipulate to remove the Cherokees to their new homes and to subsist them one year after their arrival there, and that a sufficient number of steamboats and baggage wagons shall be furnished to remove'them comfortably and so as not to endanger their health, and that a physician well supplied with medicines shall accompany each detachment of emigrants removed by the Government. Such persons and families as, in the opinion of the emigrating agent, are capable of subsisting and removing themselves shall be permitted to do so; and they shall be allowed in full for all claims for the same twenty dollars for each member of their family and, in lieu of their one year’s rations, they shall be paid the sum of thirty-three dollars and thirty-three cents, if they prefer it.
    “ Such Cherokees also as reside at present out of the nation shall remove with them in two years west of' the Mississippi and shall be entitled to an allowance for removal and subsistence as above provided.
    “Art. 15. It is expressly understood and agreed between the parties to this treaty that after deducting the amount which shall be actually expended for the payment for improvements, ferries, claims, for spoliations, removal subsistence, and debts and claims upon the Cherokee Nation and for the additional quantity of lands and goods for the poorer class of Cherokees and the several sums to be invested for the general national fund provided for in the several articles of this treaty; the balance, whatever the same may be, shall be equally divided between all the people belonging to the Cherokee Nation east according to the census just completed; and such Cherokees as have removed west since June, 1833, who are entitled by the terms of their enrolment and .removal to all the benefits resulting from the final treaty between the United States and the Cherokees east, they shall also be paid for their improvements according to their approval value before their removal where fraud has not already been shown in their valuation.”
    By article 16 it was stipulated that the Cherokees should remove to their new homes within two years from the ratification of this treaty.
    The leaders of the treaty party who had signed the treaty of 1835 contended that the sum of $5,000,000 was not intended to include the amount which might be required to remove them.
    On March 1, 1836, the President submitted to the Senate the following supplementary articles, which were adopted as part of the treaty:
    “Aeticle 1. It is therefore agreed that all the preemption rights and reservations provided for in articles 12 and 13 shall be and are hereby relinquished and declared void.
    “Art. 2. Whereas the Cherokee people have supposed that the sum of five millions of dollars fixed by the Senate in their resolution of-day of March, 1835, as the value of the Cherokee lands and possessions east of the Mississippi Biver was not intended to include the amount which may be required to remove them, nor the value of certain claims which many of their people had against citizens of the United States, which suggestion has been confirmed by the opinion expressed to the War Department by some of the Senators who voted upon the question, and whereas the President is willing that this subject should be referred to the Senate for their consideration, and if it was not intended by the Senate that the above-mentioned sum of five millions of dollars should include the objects herein specified that in that case such further provision should be mads therefor as might appear to the Senate to be just.
    “Aet. 3. It is therefore agreed that the sum of six hundred thousand dollars shall be, and the same is hereby, allowed to the Cherokee people to include the expense of their removal, and all claims of every nature and description against the Government of the United States not herein otherwise expressly provided for, and to be in lieu of the said reservations and preemptions, and of the sum of three hundred thousand dollars for spoliations described in the 1st article of the above-mentioned treaty. This sum of six hundred thousand dollars shall be applied and distributed agreeably to the provisions of the said treaty, and any surplus which may remain after removal and payment of the claims so ascertained shall b'e turned over and belong to the education fund.
    “ But it is expressly understood that the subject of this article is merely referred hereby to the consideration of the Senate, and if they' shall approve the same then this supplement shall remain part of the treaty.”
    The treaty and the suplementary articles were ratified and adopted as one instrument and proclaimed May 23, 1836.
    VIII. The Cherokee Indians who removed west of the Mississippi prior to May 23, 1836, were called “ Western Cherokees.” After the removal, under the treaty of 1835-36, of the Cherokees who had remained in the Cherokee country east of the Mississippi to the lands west of the Mississippi,, the term “ Western Cherokees ” was no longer distinctive, and the Cherokees who had theretofore been'known as such were thereafter popularly known as “ Old Settlers.”
    The Cherokees who were domiciled east of the Mississippi .River at the time of the making of the treaty of 1835-36, according to the census just then completed, were thereafter known as “ Eastern Cherokees,” the great body of whom subsequently, in 1838, moved to the lands west of the Mississippi.
    IN. Subsequent to the treaty of 1828 and prior to the signing of the treaty of December 29, 1835, almost continuous efforts had been made to induce the Cherokee people east to remove to the Indian Territory, but without success. Under the provisions of said treaty of 1835 practically nothing was accomplished in such direction until the summer of 1838, when the Cherokee Nation east yielded to superior force, and, under the supervision and direction of their own leaders, emigrated west of the Mississippi to the lands theretofore ceded to the Cherokee Nation west. (Red Book, p. 65.)
    X. The sum of $600,000, provided for by the supplementary articles of the treaty of 1835-36, was .estimated to be more than sufficient to pay the cost of removal and all claims of every nature and description against the Government of the United States not otherwise provided for in said treaty, and it was therefore provided that whatever surplus might remain after removal and payment of claims should be turned over and belong to the education fund. (7 Stat., 489.)
    On July 2, 1836, Congress confirmed the action of the Senate, as evidenced by the supplementary articles of said treaty, and appropriated, according to the terms of the third supplementary article, heretofore quoted, $600,000 for the removal of the Cherokees and for spoliations.
    This sum proved to be insufficient for the purposes for which it was appropriated.
    The treaty of December 29, 1835, was refused recognition by the great body of the Cherokees. They protested against it throrigh their constituted authorities on numerous occasions and refused to give it any recognition; declared it to be unauthorized by the Cherokee people and a fraud on the United States. (Sen. Ex. Doc. 392, 56th Cong., 1st sess., pp. 7-10.)
    The Cherokees having made no preparations to remove, as required by the terms of the treaty of 1835, Gen. Winfield Scott) with an army of men, in Majq 1838, placed them in camps of concentration under military control, preparatory to their removal by force. Thereupon, John Ross sought to make a treaty with the United States, but his overtures were rejected, and the removal of the Cherokees by force was insisted upon by the United States, except in the alternative that the Indians would agree to remove themselves peaceably.
    In the latter part of May, 1838, the President transmitted to Congress a letter bearing date May 18,1838, from the Secretary of War to John Ross, principal chief of the Cherokee Nation, wherein the following appears:
    “ If it be desired by the Cherokee Nation that their own agent should have charge of their emigration, their wishes will be complied with and instructions be given to the commanding general in the Cherokee country to enter into arrangements with them to that effect; with regard to the expense of this operation which you ask may be defrayed by the United States, in the opinion of the undersigned the request ought to be granted, and an application for such further sum as may be required by this purpose shall be made of Congress.”
    
      This last communication was transmitted to Congress, and on May 23,1838, the House of Representatives, by resolution, required a statement of the further amount necessary to pay for the removal and subsistence of the Cherokees (ibid., 78). On May 25, 1838, the'Secretary of War submitted an estimate to the Speaker of the House of Representatives “ of the amount that would be required ” to remove 15,840 Cherokees and to subsist 18,330 Cherokees, stating that the further sum necessary for this purpose was $1,047,067 (ibid., 78), and on June 12, 1838, Congress appropriated this amount with the proviso that no part of it should be deducted from the $5,000,000 fund. (5 Stat: L., p. 242; finding vi, Cong., 19386.)
    XI. The appropriation of June 12, 1838, for the removal of the Cherokees was used in part to meet the expenses of removing certain fugitive Creeks then living among them, of the Cherokees was used in part to meet the expenses of ized John Ross to undertake the self-emigration of the Cherokees under what they claimed to be the “ special understanding with the honorable Secretary of War; ” that such emigration should be at the expense of the United States, and by resolution of July 26,1838, authorized Ross and associates to arrange for “ the payment of such sums of money by the United States as might be necessary for the removal ” “ of the Cherokee people.”
    The Cherokee council, about the same time and before the payment of any money, passed a resolution on August 1, 1838, declaring that they did not recognize the treaty of New Echota, and that they would not in any manner give their sanction or approval of it. (Record, pp. 213, 215, 217.)
    The amount appropriated by Congress June 12, 1838, for the “ object specified in the third supplementary article of the treaty with the Cherokees in 1835 ” for removal expenses, etc., to wit, $1,047,067, remained untouched in the Treasury on January 1, 1839, as appears from the books of the United States Treasury. (Receipts and Expenditures 1839, p. 260.)
    XII. The cost of the removal of the Eastern Cherokees' from Georgia to the Indian Territory, paid and expended by tlie United States, was $1,495,485.92, which, amount was obtained as follows:
    From the $600,000 appropriated July 2, 1836_ $335,105. 91
    From the $1,017,067 appropriated June 12, 1S38_ 49, 095. 31
    From the $5,000,000 appropriated July 2, 1836_1, 111, 284. 70
    Total - 1, 495, 485. 92
    (Sen. Ex. Doc. 215, 56th Cong., 1st sess., p. 95; finding v, Cong., 10886.)
    That portion of the cost of subsisting the Eastern Cherokees after their arrival in the Indian Territory, which was at first deducted by the United States from the $5,000,000 treaty' fund, was subsequently refunded and paid to the Cherokees, as hereinafter shown. (Finding iv, Cong., 10386.)
    Of said amount of $1,495,485.92 paid by the United States for the removal of the Eastern Cherokees from Georgia to the Indian Territory, as set forth above, $137,740 was paid for the removal of 2,20Q of such Cherokees who has voluntarily emigrated (27 C. Cls. B., p. 3, finding m) at a cost to the Government of $61.70 per capita (Senate Doc. No. 215, 56th Cong., 1st sess., p. 78), and $1,357,745.92 were paid to John and Lewis Boss for the removal of the main body of the remainder of such Cherokees in 1838 (Senate Doc., supra).
    The amount of $1,111,284.70, charged against the $5,000,-000 fund, as before set forth, still remains charged against that fund. (S. Doc. 215, 56th Cong., 1st sess., p. 95.) Finding v, Cong., 10386.)
    XIII. After the removal of the Eastern Cherokees to the lands west of the Mississippi certain leaders of both the Western and Eastern Cherokees met at Illinois Camp Groiinds and there, on July 12, 1838, entered into an “Act of union between the Eastern and Western Cherokees,” which is as follows:
    “ Whereas our fathers have existed as a separate and distinct nation in the possession and exercise of the essential and appropriate attributes of sovereignty from a period extending into antiquity, beyond the records and memory of man; and whereas these attributes, with the rights and fran-cliises which they involve, remain in full force and virtue, as do also the national and social relation of the Cherokee people to each other and to the body politic, excepting in those particulars which have grown out of the provisions of the treaties of 1817 and 1819 between the United States and the Cherokee Nation, under which a portion of our people removed to this country and became a separate community (but the force of circumstances have recently compelled the body of the Eastern Cherokees to remove to this country, thus bringing together again the two branches of the ancient Cherokee family), it has become essential to the general welfare that a union should be formed and a system of government matured adapted to their present condition, and providing equally for the protection of each individual in the enjoyment of all his rights:
    “ Therefore we, the people composing the Eastern and Western Cherokee Nation, in national convention assembled, by virtue of our original unalienable rights, do hereby solemnly and mutually agree to form ourselves into one body politic under the style and title of the Cherokee Nation.
    
      “ In view of the union now formed, and for the purpose of making satisfactory adjustment of all unsettled business which may have arisen before the consummation of this union, we agree that such business shall be settled according to the ¡n’ovisions of the respective laws under which it originated, and the courts of the Cherokee Nation shall bo governed in their decisions accordingly. Also, that the delegation authorized by the Eastern Cherokees to make arrangements with Major-General Scott for their removal to this country shall continue in charge of that business, with their present powers, until it shall be finally closed; and, also, that all rights and titles to public Cherokee lands on the east or west of the river Mississippi, with all other public interests which may have vested in either .branch of the Cherokee family, whether inherited from our fathers or derived from any other source, shall henceforward vest, entire and unimpaired in the Cherokee Nation as constituted by this union.
    “ Given under our hands at Illinois camp grounds this twelfth day of July, 1838.
    
      “ By order of the national convention:
    “ GeoRGE Lowry,
    
      “President of the Eastern Oherohees.
    
    his
    “ George x Guess,
    mnrk
    
      “President of the Western Oherohees.”
    (117 U. S., 303-305.)
    
      On the 6th of September following, the Cherokees who had agreed upon the union adopted a constitution of government which, after reciting that the Eastern and Western Cherokees had become reunited in one body politic under the style and title of the Cherokee Nation, proceeded as follows:
    “ The lands of the Cherokee Nation shall remain common property; but the improvements made thereon, and in the possession of the citizens of the nation,' are the exclusive and indefeasible property of the citizens, respectively, who made or may rightfully be in possession of them: Pro videcl, That the citizens of the nation, possessing exclusive and indefeasible rights to their improvements, as expressed in this article, shall possess no right or power to dispose of their improvements in any manner whatever to the United States, individual States, or to individual citizens thereof; and that whenever airy citizen shall remove with his effects out of the limit of this nation and become a citizen of any other government all his rights and privileges as a citizen of this nation shall cease: Provided, nevertlieless, That the national council shall have power to readmit by law to'all the rights of citizenship any such person or persons who may at any time desire to return to the nation, on memorializing the national council for such readmission.” (117 U. S., 305.)
    At a meeting of the Cherokee people held at Tahlequah, in the Cherokee Nation, on January 16, 1840, the following declaration was made:
    “ Whereas a meeting of the Cherokee people was agreed on and requested by the United States agent and the assistant principal chief and others, on the 15th instant, at this place, and general notification given throughout the country to all parties whatever, requesting their prompt attendance for the purpose of ascertaining fairly and properly the sense and choice of a majority of the nation in relation to the subject of their future government; and whereas we, the people of the Cherokee Nation, having assembled under this call, and having heard read and interpreted the act of union adopted by the Eastern and Western Cherokees, dated July, 1839, and the constitution framed by a. convention composed of members from both parties in pursuance of the provisions of the aforesaid act, and being satisfied with the same, we do hereby "approve, ratify, and confirm the said act of union and the constitution, and acknowledge and make known that the government based upon this act and this constitution is the legitimate government, of the Cherokee Nation and of our choice, and that it has both our confidence and support.
    “ Done at Tahlequah, Cherokee Nation, the 16th day of January, 1840.
    “ J. VaNN,
    
      “Assistant Principal Chief.
    
    “ W. SlIOREY COODEY,
    “ President National Committee.”
    (27 Ct. Cls. E,, 32.)
    In January, 1840, General Arbuckle, the military commander at Fort Gibson, in charge of the Cherokee country in Indian Territory, reported to the Secretary of War with regard to the act of union and the constitution above referred to—
    “ The act of union referred to in one of the accompanying decrees is certainly not entitled to credit, as there were a very small number of the old settlers present who concurred in it, and they acted without authority.”
    He added:
    “ This change wall no doubt be severely felt by the old settlers generally, who ill their kindness invited the late emigrants to enjoy with them the lands they have secured for themselves, and who have, in less than one year after their arrival formed a new government for the nation in which the old settlers are not represented by a single individual of their own choice.”
    And on the 29th January he wrote to the Commissioner of Indian Affairs:
    “A meeting ivas called for both parties to attend, consisting of old settlers and new emigrants, Cherokees, the object being to ascertain which party had the majority. The old settlers did not attend, as they were doubtless well aware that they were in the minority. There were about 700 voters present, who were in favor of the new government; they voted in favor of the constitution and laws of the Eoss party.” (27 Ct. Cls. E., 33.)
    Notwithstanding said act of union and subsequent proceedings there remained much bitter feeling between the Eastern Cherokees and the “ Old Settlers,” and violent measures were frequently resorted to on both sides to carry out their purposes. These circumstances, among others, led to the making of the treaty of August G, 1846 (9 Stat. L., 871), wherein it is recited that — •
    “ Serious difficulties have for a considerable time past existed between the different portions of the people constituting and recognized as the Cherokee Nation of Indians, which it is desirable should be speedily settled, so that peace and harmony may be restored among them; and whereas certain claims exist on the part of the Cherokee Nation and portions of the Cherokee people-against the United States; ”
    therefore, “ with a view to the final and amicable settlement of the difficulties and claims before mentioned ” and “ to make the Eastern and Western Cherokees parties to the treaty of New Echota, which they had never conceded themselves to be” {Western Cherokees v. United States, 27 Ct. Cls. B.., 36, par. 3), it is agreed, among other things, as follows :
    “Aeticle 1. That the lands now occupied by the Cherokee Nation shall be secured to the whole Cherokee people for their common use and benefit; and a patent shall be issued for the same, including the eight hundred thousand' acres purchased, together with the outlet west, promised by the United States, in conformity with the provisions relating thereto, contained in the third article of the treaty of 1835 and in the third section of the act of Congress approved May twenty-eighth, 1830, which authorizes the President of the United States, in making exchanges of lands with the Indian tribes, to assure the tribe or nation with which the exchange is made that the United States will forever secure and guarantee to them, and their heirs or successors, the country so exchanged with them; and, if they prefer it, that the United States will cause a patent or grant to be made and executed to them for the same: Provided always, That such lands shall revert to the United States if the Indians become extinct or abandon the same.
    “Aet. II. All difficulties and differences heretofore existing between the several parties of the Cherokee Nation are hereby settled and adjusted, and shall, as far as possible, be forgotten and forever buried in oblivion. All party distinctions shall cease, except so far as they may be necessary to carry out this convention or treaty. A general amnesty is hereby declared. All offences and crimes committed by a citizen or citizens of the Cherokee Nation against the nation or against an individual or individuals are hereby pardoned. All Cherokees who are now out of the nation are invited and earnestly requested to return to their homes, where they may live in peace, assured that they shall not be prosecuted .for any offence heretofore committed against the Cherokee Nation or any individual thereof! And this pardon and amnesty shall extend to all who may now be out of the nation and who shall return thereto on or before the 1st day of December next. The several parties agree to unite in enforcing the laws against all future offenders. Laws shall be passed for equal protection and for the security of life, liberty, and property; and full authorityshall be given by law to all or any portion of the Cherokee people peaceably to assemble and petition their own government or the Government of the United States for the redress of grievances, and to discuss their rights. All armed police, light horse, and other military organization shall be abolished, and the laws enforced by the civil authority alone.
    “No one shall be punished for any crime or misdemeanor, except on conviction by a jury of his country and the sentence of a court duly authorized by law to take cognizance of the offence. And it is further agreed all fugitives from justice, except those -included in the general amnesty herein stipulated, seeking refuge in the territory of the United States, shall be delivered up by the authorities of the United States to the Cherokee Nation for trial and punishment.
    “Aet. III. Whereas certain claims have been allowed by the several boards of commissioners heretofore appointed under the treaty of 1835 for rents, under the name of improvements and spoliations, and for property of which the Indians were dispossessed, provided for under the 16th article of the treaty of 1835; and whereas the said claims have been paid out of the $5,000,000 fund; and whereas said claims were not justly chargeable to that fund, but were to be’ paid by the United States, the said United States agree to reimburse the said fund the amount thus charged to said fund, and the same shall form a part of the aggregate amount to be distributed to the Cherokee people, as provided in the 9th article of this treaty; and whereas a further amount has been allowed for reservations under the provisions of the 13th article of the treaty of 1835 by .said commissioners, and has been paid out of the said fund, and which said sums were properly chargeable to, and should have been paid by, the United States, the said United States further agree to reimburse the amounts thus paid for reservations to said fund; and whereas the expenses of_making the treaty of New Echota were also paid out of said fund, when they should have been borne by the United States, the United States agree to reimburse the same, and also to reimburse all other sums paid to any agent of the Government and improperly charged to said fund; and the same shall also form a part of the aggregate amount to be distributed tovthe Cherokee people, as provided in the 9th article of this treaty.
    “Art. IY. And whereas it has been decided by the board of commissioners recently appointed by the President of the United States to examine and adjust the claims and difficulties existing against and between the Cherokee people and the United States, as well as between the Cherokees themselves, that under the provisions of the treaty of 1828, as well as in conformity with the general policy of the United States in relation to the Indian tribes, and the Cherokee Nation in particular, that that portion of the Cherokee people known as the ‘ Old Settlers,’ or ‘ Western Cherokees,’ had no exclusive title to the territory ceded in that treaty, but that the same was intended for the use of, and to be the home for, the whole nation, including as well that portion then east as that portion then west of the Mississippi ; and whereas the said board of commissioners further decided that, inasmuch as the territory before mentioned became the common property of the whole Cherokee Nation by the operation of the treaty of 1828, the Cherokees then west of the Mississippi, by the equitable operation of the same treaty, acquired a common interest in the lands occupied by the Cherokees east of the Mississippi River, as well as in those occupied by themselves west of that river, which interest should have been provided for in the treaty of 1835, but which was not, except in so far as they, as a constituent portion of the nation, retained, in proportion to théir numbers, a common interest in the country west of the Mississippi, and in the general funds of the nation; and therefore they have an equitable claim upon the United States for the value of that interest, whatever it may be.
    “"Now, in order to ascertain the value of that interest, it is agreed that the following principle shall be adopted, viz: All the investments and expenditures which are properly chargeable upon the sums granted in the treaty of 1835, amounting in the whole to five millions six hundred thousand dollars (which investments and expenditures are particularly enumerated in the 15th article of the treaty of 1835), to.be first deducted from said aggregate sum, thus ascertaining the residuum or amount which would, under such marshaling of accounts, be left for per capita distribution among the Cherokees emigrating under the treaty of 1835, excluding all extravagant and improper expenditures, and then allow to the Old Settlers (or Western Cherokees) a sum equal to one-thircl part of said residuum, to be distributed per capita 
      to each individual of said party of ‘ Old Settlers,’ or ‘ Western Cherokees.’ It is further agreed that, so far as the Western Cherokees are concerned, in estimating the expense of removal and subsistence of an Eastern Cherokee, to be charged to the aggregate finid of five million six hundred thousand dollars above mentioned, the sums for removal and subsistence stipulated in the 8th article of the treaty of 1835, as commutation money in those cases in which the parties entitled to it removed themselves, shall be adopted. And, as it affects the settlement with the Western Cherokees, there shall be no deduction from the fund before mentioned in consideration of any payments which may hereafter be made out of said fund; and it is hereby further understood and agreed that the principle above defined shall embrace all those Cherokees west of the Mississippi who emigrated prior to the treaty of 1835.
    “ In the consideration of the foregoing stipulation on the part of the United States, the ‘ Western Cherokees,’ or ‘ Old Settlers,’ hereby release and quitclaim to the United States all right, title, or claim they may have to a common property in the Cherokee lands east of the Mississippi River, and to exclusive ownership to the lands ceded to them by the treaty of 1833 west of the Mississippi, including the outlet west, consenting and agreeing that the said lands, together with the eight hundred thousand acres ceded to the Cherokees by the treaty of 1835, shall be and remain the common property of the whole Cherokee people, themselves included.”
    Articles 9,10, and 11 are as follows:
    “Akt. 9. The United States agree to make a fair and just settlement of all moneys due to the Cherokees and subject to the per capita division under the treaty of 29th of December, 1835, which said settlement shall exhibit all money properly expended under said treaty and shall embrace ail sums paid for improvements, ferries, spoliations, removal, and subsistence, and commutation therefor, debts and claims upon the Cherokee Nation of Indians for the additional quantity of land ceded to said nation; and the several sums provided in the several articles of the traety to be invested as the general funds of the nation; and also all sums which may be hereafter properly allowed and paid under the provisions of the treaty of 1835, the aggregate of which said several sums shall be deducted from the sum of six millions six hundred and forty-seven thousand and sixty-seven dollars, and the balance thus found to be due shall be paid over per capita in equal amounts to all those individuals, heads of families, or their legal representatives, entitled to receive the same under the treaty of 1835 and the supplement of 1836, being all those Cherokees residing East at the date of said treaty and the supplement thereto.
    “Aet. 10. It is expressly agreed that nothing in the foregoing treaty contained shall be so construed as in any manner to take away or abridge any rights or claims which the Cherokees now residing in States east of the Mississippi River had, or may have, under the treaty of 1835 and the supplement thereto.
    “Aet. 11. Whereas the Cherokee delegations contend that the amount expended for the one year’s subsistence, after their arrival in the West, of the Eastern Cherokees is not properly chargeable to the treaty fund) it is hereby agreed that that question shall be submitted to the Senate of the United States for its decision, which shall decide whether the subsistence shall be. borne by the United States or the Cherokee funds, and -if by the Cherokees, then to say whether the subsistence shall be charged at a greater rate than thrity-three 33/100 dollars per head; and also the question whether the Cherokee Nation shall be allowed interest on whatever sum may be found to be due the nation, and from what date and at what rate per annum.”
    XV. The Senate of the United States, acting as umpire under Article II of the treaty of 1846, on September 5, 1850, passed the following resolution:
    
      “Resolved by the Senate of the United States, That the Cherokee Nation of Indians are entitled to the sum of one hundred and eiglity-nine thousand four hundred and twenty-two dollars and seventy-six cents for subsistence, being the difference between the amount allowed by the act of June 12, 1838, and the amount actually paid and expended by the United States, and which excess was improperly charged to the treaty fund in the report of the accounting officers of the Treasury.
    “Resolved, That it is the sense of the Senate that interest at the rate of five per cent per annum should be allowed upon the sums found due to the Eastern and Western Cherokees, respectively, from the twelfth day of June, eighteen hundred and thirty-eight, until paid.” (Sen. Journal, 31st Cong., 1st sess., p. 602.)
    This amount was accordingly appropriated by Congress for that purpose by the act of September 30, 1850, with the proviso that interest be paid on the same at the rate of 5 per cent per annum, according to a resolution of the Senate of the 5th of September, 1850 (9 Stat. L., p. 556). (Finding vii, Cong., 10386.)
    
      XVI. Under the .fourth article of the treaty of 1846 the accounting officers of the United States made and prepared for settlement the account therein provided for, ivhereby it appears that upon crediting the treaty fund therein mentioned as the article prescribes, there would remain a balance of $1,571,346.55, one-third of which distributable to the Western Cherokees amounting to $523,448.85. Congress in point of fact on such account appropriated $532,782.18, and ■this amount, with interest thereon at 5 per cent from June 12, 1838, was thereupon paid and distributed to the Western Cherokees per capita. The account -is as follows:
    The fund provided by the treaty of 1835 was taken to be_ $5, 600, 000. 00
    From which was deducted under the treaty of 1840 (4th article) the sums chargeable under the 15th article of the treaty of 1835, which, according to the report of the accounting officers, stood thus: For improvements_$1, 540, 572. 27
    For ferries.^_ 159, 572.12
    For spoliations_ 204, 894. 09
    For removal and. subsistence of 18,020 Indians, at $53.33^ per head_ 901, 380. 66
    Debts and claims upon the Cherokee Nation, viz:
    National debts (10 th article)_ $18, 062.00
    Claims of United States citizens (10th article) _ 01, 073. 49
    Cherokee committee (12th article)_ 22,212.76 -
    101, 348. 31
    Amount allowed United States for additional quantity of land ceded_ 500, 000. 00
    Amount invested as a general fund of the nation_ 500, 880. 00
    4, 028, 653. 45
    Which, being deducted from the treaty fund of $5, 600, 000, leaves the residuum contemplated by the 4th article of the treaty of 1846- 1, 571, 346. 55
    One-third of which balance would be- 523,448. S5
    
      The balance found by this accounting to be due the Western Cherokees was appropriated for and paid to the individual distributees by and under the provisions of the act of September 30, 1850 (9 Stat. L., 556).
    Under the ninth article of the treaty of 1846 the accounting officers of the United States made and prepared for settlement the account provided for by that article, whereby it appears that after crediting the treaty fund with the cost of subsistence of the Indians at the west, with which it had been charged, there remained a balance due of $914,026.13. Congress accordingly, in addition to the amount of $189,422.76,. which had been appropriated for by the act of September 30, 1850 (9 Stat. L., 556), pursuant to .the resolution of the Senate, by the act of February 27, 1851, appropriated the further sum of $724,603.37, and there was thereupon paid and distributed to the Eastern Cherokees per capita the above amounts, with interest thereon at 5 per cent from June 12, 1838.
    This account ill detail is as follows:
    Appropriation, July 2, 1836-$5, 000, 000. 00'
    Appropriation, July 2, 1836_ 600, 000. 00
    Appropriation, June 12, 1838- 1, 047, 067. eo
    Appropriation, February 27, 1851- 90, 909. 00-
    Appropriation, September 30, 1850_ ISO, 151. 24
    Amounts advanced to individuals and afterwards retained out of appropriation of February 27, 1851- 271. 52
    6, 933,489.18
    Disbursements:
    For improvements_ $1, 540, 572. 27
    For ferries_ 159, 572.12
    For spoliations_ 264, 894. 09
    For removal and subsistence and commutation therefor, including $2,-765.84 expended for goods for the poorer Cherokees under the fifteenth article of treaty of 1835, as follows :
    Removal subsistence, and commutation _$2,823,192.93
    
      For removal, etc. — Continued.
    Physicians, matrons, medicines, hospitals, stores, etc $32, 003. 91
    Superin tendents, clerks,interpreters, disbursing,issuing, and enrolling agents, conductors, and contingencies- 96, 999.42
    - $2, 952,196. 26
    For debts and claims upon the Cherokee Nation :
    National debts (tenth article)_ $18, 062. 06
    Claims of United States citizens (tenth article)_ 61,073.49
    Cherokee committee (twelfth article) _ 22,212.76
    - 101, 348. 31 '
    For the additional quantity of land ceded to the nation_ 500, 000. 00
    For amount invested as the general fund of the nation_>_ 500, 880. 00
    •-$6, 019, 463. 05
    914, 026.13
    On the 27tli of November, 1851, before the payment of any money on account of either of the above-mentioned balances of $523,448.85 and $914,026.13 or the signing of any receipts by the Indians on account thereof, the Cherokee national council made a formal statement of the national claims arising as was contended under the treaties of December 29, 1835, and August 16, 1846, and protested against the above-mentioned settlement accounts with respect to the failure of the accountants to credit therein the treaty fund with the expenses of removal, saying, among other things:
    “ 1st. Because no allowance is made for the sums taken from the treaty fund for removal to the West, although that charge depended on precisely^ the same words in the treaty^ of 1835 as did the one year’s subsistence, and the Senate unanimously decided on the question submitted to them as arbitrators that the item of subsistence was not a proper charge upon the Cherokee fund. That had been the decision of the Senate about the daté of the treaty when that question was specially presented. It was again so considered by Mr. Poin-sett,, Secretary of War, in 1838, and his decision was sanctioned by the action of Congress and an appropriation was made for that purpose. But the estimates being too small by half, the Indian fund was then for the first time seized upon.
    
      “ 2d. If it be conceded that the Cherokee fund was liable for these charges, their amount was limited by the eighth article of the treaty to a certain specified amount, and the GoArermnent had no right to exceed that amount and charge it to the Indian fund.
    “ 3d. We complain that the alternative of receiving for subsistence $33.33, as provided for in the treaty, was refused to be complied with and the people forced to receive rations in kind at double the cost.
    “ 4th. We complain that the rations issued by the military commandant at Fort Gibson to ‘ indigent Cherokees ’ was improperly charged to treaty fund without airy legal authority.
    “ 5th. We claim that the United States is bound to reimburse the amount paid to more than 200 or 300 Cherokees who had emigrated to the West prior to 1835, but who were refused a participation in the ‘ old settler ’ fund and thrown on the emigrant party who removed after that date.
    “ 6th. We claim that the Cherokees who remained in the States of Georgia, North Carolina, and Tennessee were not entitled to any share in the per capita fund, as they complied with neither of two conditions of their remaining East, both of which were indispensable, and, also, because the census of those Cherokées is, as we believe, enormously exaggerated.
    “ 7th. We complain that the sum of $103,000 has been charged upon the treaty fund for expenses of Cherokees in Georgia three months after they were all assembled and had reported themselves to General Scott as ready to commence the march.
    “ 8th. We claim interest on the balance found due us from the 15th of April, 1851, till paid, Congress having no power to abrogate the stipulations of a treaty.
    “ 9th. We also complain that $20,000 of the fund of the emigrant Cherokees were taken to pay the counsel and agents of the ‘ Old Settlers ’ without any authority.”
    On the 22d day of September, 1851, the Western Cherokees had also formulated a separate protest against the proposed settlement with them (“ Old Settlers ” case, 27 C. Cls. B., 9).
    Both of the foregoing protests were transmitted to and received by the Commissioner of Indian Affairs during the month of April, 1852.
    Thereafter said balance of $914,026.13, with interest at 5 per cent from June 12, 1838, was duly paid and distributed •to and among the Eastern Cherokees per capita, and the individual Eastern Cherokees executed and delivered to the United States a full and final discharge of all claims and demands whatsoever on the United States, as required by the statute making the appropriations.
    This discharge was in the form following:
    “ We, the undersigned emigrant or Eastern Cherokees, do hereby acknowledge to have received from John Drennan, Superintendent Indian Affairs, the sums opposite our names, respectively, being in full of all demands under the treaty of sixth of August, eighteen hundred and forty-six, according* to the principles established in the ninth article thereof, and appropriated bjr Congress per act 30th of September, 1850, and per act 27th of February, 1851, which reads as follows:
    “And the said Cherokee Nation shall, on the payment of said sum of money, execute and deliver to the United States' a full and final discharge for all claims and demands whatsoever on the United States, except for such annuities in money or specific articles of property as the United States may be bound by treaty to pay to said Cherokee Nation, and except also such money and lands, if any, as the United States may hold in trust for said Cherokees.” (Finding* viii, Cong. 10386.)
    And thereafter the said balance of $532,782.18, with interest at 5 per cent from June 12, 1838, was appropriated by Congress, ivas duly paid and distributed to and among the Western Cherokees per capita, and the individual Western Cherokee's executed and delivered to the United States a discharge in the following form:
    “ We, the undersigned ‘ old settlers ’ or Western Cherokees, do hereby acknowledge to have received from John Drennan, Supt. of Indian Affairs, the sums set opposite our names, respectively, being in full of all demands under the provisions of the treaty of the sixth of August, eighteen hundred and forty-six, according to the principles established in the fourth article thereof, as per act entitled ‘An- act making* appropriations for the current and contingent expenses of the Indian Department, and for fulfilling treaty stipulations with various Indian tribes for the year ending June 30th, one thousand eight hundred and fifty-one,’ approved September 30th, 1850.”
    The provisions of the appropriation acts referred to in the finding are as follows, viz:
    [Act of September 30, 1850 (9 Stats. L., 523, 556).]
    “ To the ‘ old settlers ’ or ‘ "Western Cherokees,’ in full of all demands, under the provisions of the treaty of sixth August, eighteen hundred and forty-six, according to the principles established in the fourth article thereof, five hundred and thirty-two thousand eight hundred and ninety-six dollars and ninety cents; and that interest be allowed and paid upon the above sums due respectively to the Cherokees and ‘ old settlers,’ in pursuance of the above-mentioned award of the Senate, under the reference contained in the said eleventh article of the treaty of sixth August, eighteen hundred and forty-six: Provided, That in no case shall any money hereb}r appropriated be paid to any agent of said Indians, or to any other person or persons than the Indian or Indians to whom it is due: Provided also, That the Indians' who shall receive the said money shall first respectively sign a receipt or release, acknowledging the same to be in full of all demands under the fourth article of said treaty.”
    [Act of February 27, 1851 (9 Stat. L., 570, 572).]
    “ For payment to the Cherokee Nation the sum of seven hundred and twenty-four thousand six hundred and three dollars and thirty-seven cents, and interest on the above sum at the rate of five per centum per annum, from twelfth day of June, eighteen hundred and thirty-eight, until paid, shall be paid to them out of any money in the Treasury not otherwise appropriated; but no interest shall .be paid after the first of April, eighteen hundred and fifty-one, if any portion of the money is then left undrawn bjr the said Cherokees: Provided, however, That the sum now appropriated shall be in full satisfaction and a final settlement of all claims and demands whatsoever of the Cherokee Nation against the United States, under any treaty heretofore made with the Cherokees. And the said Cherokee Nation shall, on the payment of said sum of money, execute and deliver to the United States a full and final discharge for all claims and demands whatsoever on the United States, except for such annuities in money or specific articles of property as tlie United States may be bound by any treaty to pay to said Cherokee Nation, and except, also, such moneys and lands, if any, as the United States may hold in trust for said Cherokees: And provided further, That the money appropriated in this item shall be paid in strict conformity with the treaty with said Indians of sixth August, eighteen hundred and forty-six.”
    No portion of either of said balances Was paid to the Cherokee Nation or its citizens, otherwise than as above set forth, and no receipt or discharge other than as above described passed to the United States on account of such payments.
    XVII. By act of Congress of February 29, 1889 (25 Stat. L., 694)., it was provided—
    
      “ That the claim of that’ part of the Cherokee Indians known as the ‘ Old Settlers ’ or ‘ Western Cherokees ’ against the United States, which claim was set forth in the report of the Secretary of the Interior to Congress of February third, eighteen hundred and eighty-three (said report being made under act of Congress of August seventh, eighteen hundred and eighty-two), and contained in Executive Document Number Sixty of the second session of the Forty-seventh Congress, be, and the same hereby is, referred to the Court of Claims for adjudication; and jurisdiction is hereby conferred on said court to try said cause and to determine what sum or sums of money, if any, are justly due from the United States to said Indians, arising from or growing out of treaty stipulations and acts of Congress relating thereto, after deducting all payments heretofore actually made to' said Indians by the United States, either in money or property; and after deducting all offsets, counterclaims, and deductions of any and every kind and character which should be allowed to the United States under any valid provision or provisions in said treaties and laws contained, or to which the United States may be otherwise entitled.”
    Under this act suit was instituted in the Court of Claims on behalf of the “ Old Settlers,” and resulted in a judgment against the United States for $224,972.68, “ being a balance of the per capita fund provided by the fourth article of the treaty between the United States and the Western Cherokees, dated August 6, 1846, together with interest thereon from the 12th day of June, 1838, up to and until the entry of this decree, being the sum of $603,145.58; and likewise the sum of $4,179.26 for 3,34345V acres of land in Arkansas ceded to tlie United States by article 4 of the treaty of May 6,1828, amounting in the aggregate to the sum of -$832,297.52.” (27 C. Cls. K,., 1, 20, 56.)
    On appeal to the Supreme Court of the United States this judgment, on April 3, 1893, was modified as per the account stated by that court, as follows:
    Tlie treaty fund_$5, 600, 000. 00 Less:
    For 800,000 acres of land_ $500, 000. 00
    For general fund_ 500, 000. 00
    For improvements_1, 540, 572.27
    For ferries.- 159, 572.12
    For spoliations_ 204, 894. 09
    For debts, etc_ CO, 000. 00
    For removal of 16,957 Clierokees, at $20 each__ 339,140. 00
    - 3,364,178.48
    Giving as tlie residuum to be divided_¿_ 2, 235, 821. 52
    One-third due the Western Clierokees_ 745, 273. 84
    Less payment September 22, 1851_ 532,896.90
    Leaving a balance of_ 212, 376. 94
    To which amount the court added the further sum of $4,179.26 for the Arkansas agency, and as so modified was affirmed with interest on said balance of $212,376.94 at the rate of 5 per cent from June 12, 1838, up to and until the modification of the decree.
    August 23, 1894, Congress appropriated the sum of $800,-386.31 in settlement of this judgment, and of such amount the sum of $745,273.84 was distributed to the Western Cherokee as identified by the Drennen roll of 1852, if living, and to the descendants of those who had died. According to said roll the “ Western Cherokee ” then numbered 3,146 persons, who accordingly received the sum of $236.89 per ca-pita, excluding interest.
    XVIII. By section 14 of the act of Congress entitled “An act making appropriations for the current and contingent expenses of the Indian Department, and for fulfilling treaty stipulations with various Indian tribes for the year ending June 30, 1889, and for other purposes,” approved March 2, 1889 (25 Stat. L., 1005), the President was authorized to appoint three commissioners to negotiate with the Indian tribes owning or claiming lands lying west of the ninety-sixth degree of longitude in the Indian Territory for the cession to the United States of all their title, claim, or interest of every kind or character in and to said lands, and he did appoint David H. Jerome, Alfred M. Wilson, and Warren G. Sayre such commissioners.
    virtue of the authority contained in an act of the Cherokee national council, approved November 1G, 1891, Elias C. Boudinot, Joseph xY. Scales, Roach Young, William Triplett, Thomas Smith, Joseph Smallwood, and George Downing were duly appointed commissioners' — ■
    “ To meet and enter into negotiations with the above-named commission, appointed by the President of the United States, for the cession of the lands of the Cherokee Nation west of the 96th degree of west longitude, and for the final adjustment of all questions of interest between the United States and the Cherokee Nation which are now unsettled.”
    By said act of Congress it was made the duty of said commissioners appointed by the President to report all' agreements resulting from such negotiations to the President, to be by him reported to the Congress at its next session, and by the act of the Cherokee council it was made the duty of the commissioners on the part of the Cherokee Nation to report all their proceedings in full to the national council for its approval and ratification. (Ex. Doc. 56, 52d Cong., 1st sess., 17.)
    At the outset of the negotiations between said commissioners for the purchase and sale of said lands, which were known as the “ Cherokee Outlet,” the commissioners on the part of the Cherokee Nation renewed their claims and contentions with respect to the balances alleged to be due to them under various treaties, and particularly their contention that the so-called treaty fund had been improperly charged with the expense of the removal of the Eastern Cherokees to the Indian Territory, and demanded as “ a condition precedent to any agreement for the sale of the land ” that some adjustment of such contentions should be made.
    
      On the 19th of December, 1891, after prolonged negotiations, the commissioners above named entered into articles of agreement, by Article I of which it was agreed that—
    “ The Cherokee Nation, by act duly passed, shall cede and relinquish all its title, claim, and interest of every kind and character in and to that part of the Indian Territory bounded on the west by the one hundredth (100°) degree of west longitude, on the north by the State of Kansas, on the east by the ninety-sixth (96°) degree west longitude, and on the south by the Creek Nation, the Territory of Oklahoma, and the Cheyenne and Arapahoe Reservation created or defined by Executive order, dated August 10, 1860, the tract of land embraced within the above boundaries containing eight million one hundred and forty-four thousand six hundred and eighty-two and ninety-one one-hundredths (8,144,-682.91) acres, more or less.”
    By article 2 that—
    ‘‘ For and in consideration of the above cession1 and relin- . quishment the United States agrees: ”
    First. That it will remove from the limits of the Cherokee Nation as trespassers certain described persons.
    Second. That a certain article of the antecedent treaty of July, 1866, should be abrogated and held for naught.
    Third. That the judicial tribunals of the Cherokee Nation should have exclusive jurisdiction in certain cases.
    Fourth. That—
    “ The United States shall, without delay, render' to the Cherokee Nation, through any agent appointed by authority of the national council, a complete account of moneys due the Cherokee Nation under any of the treaties ratified in the years 1817, 1819, 1825, 1828, 1835-36, 1846, 1866, and 1868, and any laws passed by the Congress of the United States for the purpose of carrying said treaties, or any of them, into effect; and upon such accounting, should the Cherokee Nation, by its national council, conclude and determine that such accounting is incorrect or unjust, then the Cherokee Nation shall have the right, within twelve months, to enter suit against the United States in' the Court of Claims, with the right of appeal to the Supreme Court of the United States by either partjq for any alleged or declared amount of money promised but withheld by tlie the United States from the Cherokee Nation, under any of said treaties or laws, which may be claimed to be omitted from, or improperly or unjustly or illegally adjusted in, said accounting; and the Congress of the United States shall at its next session, after such case shall be finally decided and certified to Congress according to law, appropriate a sufficient sum of money to pay such judgment to the Cherokee Nation, should judgment be rendered in her favor; or if it shall be found upon such accounting that any sum of money has been so withheld, the amount shall be duly appropriated by Congress, payable to the Cherokee Nation, upon the order of its national council, such appropriation to be made by Congress, if then in session, and if not, then at the session immediately following such accounting.”
    Fifth. That certain citizens of the Cherokee Nation should have the right to select lands as homesteads under certain conditions; and
    Sixth. In addition to all of the foregoing enumerated considerations for the cession and relinquishment of title to the described lands, the United States shall pay to the Cherokee Nation, at such times and in such manner as the Cherokee national council shall determine, the sum of $8,595,736.12 in excess of the sum of $728,389.46, the'aggregate of amounts heretofore appropriated b]7 Congress and charged against the lands of the Cherokees west of the Arkansas River.
    Said articles of agreement were accepted, ratified, and confirmed on the part of the Cherokee Nation by an act of the national council approved January 4, 1892, and were also accepted, ratified, and confirmed on the part of the United States by act of Congress of March 3,1893 (27 Stat. L., 640).
    Prior to the acceptance and ratification of said agreement on the part of the United States, as aforesaid, the commissioners on behalf of the United States, as required by the law under which the]'' were appointed, had reported to the President the making of the articles of agreement aforesaid, and by way of explanation said:
    “As to the conditions of the agreement, besides the relinquishment of title upon the'one part and the payment of a price in money on the other, it is necessary to state that the settlement of the matters contained in such conditions were made a condtion precedent to any agreement for the sale of the land.
    
      “ The accounting provided for in the fourth subdivision of article 2 of the agreement is inserted and agreed to, because the Cherokees are compelled to accept the construction of the treaties made by the executive and administrative branches of the Government.
    “ Whatever that construction is, the Indian must abide by [it]. There is no appeal except to Congress. Without going specifically into details, the Cherokees claim that upon a just accounting upon a proper construction of the treaties named, a large sum of money, principal and interest, will be found due them. They also desire to include lands as well as money, but they were induced to eliminate ‘ lands ’ from the provision. With that eliminated the provision was agreed to, as set out. The Government has made the accounting, has kept the books, has construed the treaties. If that has been done properly, no harm can come from restating the account. If it has not been done properly, no possible reason can exist why the error should not be corrected.” (Sen. Ex. Doc. 56, 52d Cong., 1st sess., pp. 11, 12.)
    . Gen. Thomas J. Morgan, Commissioner of Indian Affairs, in his report to the Secretary of the Interior on February 6, 1892, made the following explanation and comment on the fourth section of article 2, to wit:
    “ The fourth section of article 2 provides for an accounting between the United States and the Cherokee Nation. The work necessary to render this account will be very heavy, and much time will be necessary to properly prepare the same. On this provision of the agreement the commissioners say:
    “ The Government has made the accounting, has kept the books, has construed the treaties. If this h^s been done properly no harm can come from restating the account. If it has not been done properly no possible reason can exist why the error should not be corrected. It creates no new obligations against the Government, but only provides for legal discharge of the old ones.
    “ This seems to me to be a reasonable view to take of this provision, and I do not see that any valid objection could be advanced against it.
    “ In your reference of the matter to this Office you said: “ ‘ Particular attention is called to section 4 of article 2 of the agreement, Avith request for a full report as to what may be the state of the account between the United States and the Cherokees, if practicable, within a reasonable time; i'f not, your general conclusions.’
    
      “ In reply to this indorsement I have the honor to say that if this section is construed to require the United States to state an account of moneys stipulated to be paid to the Cherokee Nation, under the treaties therein specified and under the various appropriation acts to carry the same into effect, this account should be prepared by this Office.within a reasonable time, say, about two months. If, on the other hand, it be construed to require a detailed statement of all the moneys received and disbursements made by the United States of the Cherokee funds under said treaties and acts of Congress, which seems to me to be the intention of the parties negotiating the agreement, it-would require the services of an expert accountant, with assistants, probably twelve months or more to review and copy the Cherokee accounts and records running back nearly a century. In order to prepare a statement of this kind it would require an appropriation by Congress of the sum of at least $5,000 to pay for the services of an expert accountant, and in the draft of a bill for the ratification of the agreement herewith inclosed, I have provided for the appropriation of that sum, or so much thereof as may be necessary for that purpose.” (Senate Ex. Doc. No. 56, 52cl Cong., 1st sess., p. 8.)
    This report of the Commissioners was, on or about February 8, 1892, referred by the Secretary of the Interior to the Assistant Attorney-General for the Interior Department “ for his consideration and report upon the legality of the contract, the sufficiency of the proposed bill, and his views upon the question (s) of law relating to the subject,” and on or about February 25, 1892, said officer reported thereon, as appears in said Senate Executive Document 56, Fifty-second Congress, first 'session, saying, among other things:
    “ The report and agreement were referred to the Commissioner of Indian Affairs, who, under date of February 6, 1892, reported favorably on the agreement, and transmitted with his report the draft of a bill to be submitted to Congress to ratify and carry out the provisions thereof. * * * The agreement contains two articles. The first relates to the cession and the second to the consideration therefor. * * *
    
    “ The considerations for said cession, as contained in article 2, are set forth under six subdivisions. * * *
    
    “ The fourth and next provision of article 2 of the agreement requires-the United States to render to the Cherokee Nation a complete accounting of all money agreed to be paid to the Indians or which they may be entitled to under any treaty or act of Congress since 1817. And if said accounting is satisfactory Congress shall malic .the necessary appropriation to pay the same. But if the accounting is not satisfactory, then the Chcrokees to have the right to institute suit in the Court of Claims against the United States for the claimed amount, and Congress is to make the necessary appropriation to pay the judgment, if any, recovered.
    “ I see nothing in the stipulations herein to comment upon. It seems right and promotive of good feeling that there should be a full and final settlement of all claims and accounts of these Indians against the United States, and I think the terms of agreement are sufficiently clear to secure such accounting.
    “ The Commissioner of Indian Affairs asks for a special appropriation of $5,000 to enable him to make the accounting.”
    All of these reports were before the Congress when it accepted and ratified said articles of agreement by act of March 3, 1893 (27 Stat. L., 641), in the following language, to wit:
    “ Which said agreement is fully set forth in the message of the President of the United States, communicating the same to Congress, known as Executive Document No. 56 of the first session of the Fifty-second Congress, the lands referred to being commonly' known and called the ‘ Cherokee Outlet; ’ and said agreement is hereby ratified by the Congress of the United States, subject, however, to the Constitution and law's of the United States and to acts of Congress that have been or may be passed regulating trade and intercourse with the Indians, and subject also to certain amendments thereto, as follows: * * * (Amendments not important here.) * *
    “And the provisions of said agreement so amended shall be fully performed and carried out on the part of the United States; ju’ovided that the money hereby appropriated shall be immediately available, and the remaining sum of eight million three hundred thousand dollars, or so much thereof as is required to carry out the provisions of said agreement as amended and according to this act, to be payable in five equal instalments, commencing on the fourth day of March, eighteen hundred and ninety-five, and ending on. the fourth day of March, eighteen hundred and ninety-nine, said deferred payments to bear interest at the rate of four per cen-tum per annum, to be paid annually, and the amount required for the payment of interest as aforesaid is hereby appropriated; ”
    
      “ The acceptance by the Cherokee Nation of Indians of any of the money appropriated as herein set forth shall be considered and taken and shall operate as a ratification by said Cherokee Nation of Indians of said agreement, as it is hereby proposed to be amended, and as a full and complete relinquishment and extinguishment of all their title, claim, and interest in and to said'lands; ”
    “And said lands, except the portion to be allotted as provided in said agreement, shall, upon the payment of the sum of two hundred and ninety-five thousand seven hundred and thirty-six dollars, herein appropriated, to be immediately paid, become, and be taken to be and treated as a part of the public domain.”
    XIX. By said act of March- 3, 1893, ratifying said agreement for the purchase of the “ Cherokee Outlet ” the Congress also provided as follows:
    “ The sum of five thousand dollars, or so much thereof as may be necessary, the same to be immediately available, is hereby appropriated, out of any moneys in the Treasuiy not otherwise appropriated, to enable-the Commissioner of Indian Affairs, under the direction of the Secretary of the Interior, to employ such expert person or persons to properly render a complete account to the Cherokee Nation of moneys due said nation, as required in the fourth subdivision of article 2 of said agreement.”
    Thereafter James A. Slade and Joseph T. Bender were employed as experts under the provisions of said section of said act, and thejr made and rendered an account pursuant to the provisions of paragraph 4 of article 2 of the articles of agreement of December 19, 1891, as ratified and affirmed by said act of March 3, 1893. Said account was by the Secretary of the Interior referred to the Commissioner of Indian Affairs for examination and report, and the same having-been examined and approved by said Commissioner, was l^ the latter returned to the Secretary of the Interior, who transmitted the same to the Cherokee Nation by delivering a copy thereof to R. F. Wyley, its property constituted agent for receiving the same, and said acount so made, rendered, and transmitted was accepted by the Cherokee Nation by an act of its national council approved December 1, 1894, and no suit was thereafter brought by the Cherokee Nation against the United States charging that said account was in anywise incorrect or unjust, but, on the contrary, the principal chief of the Cherokee Nation, as required by the act of its national'council above referred to, did notify the Secretary of the Interior of the acceptance by said nation of said •account as so stated by Messrs. Slade and Bender, and did request said Secretary of the Interior to notify the Congress of the United States of such acceptance, and on the 7th of January, 1895, the Secretary of the Interior reported the entire matter to the Congress in the following words:
    “ SiR: I have the honor to herewith transmit, in compliance with the provisions of the third subdivision of article 2 of the agreement made December 19, 1891, with the Cherokee Indians, ratified by the act of Congress approved March 3, 1893 (27 Stats., 643), a certified copy of ‘a complete account of moneys due the Cherokee Nation under any of the treaties made in the years 1817, 1819, 1825,1833, 1835-36, 1846, 1866, and 1868, and any laws passed by the Congress of the United. States for the purpose of carrying said treaties, or any of them, into effect,’ prepared in accordance with the provisions of the said act of March 3, 1893, together with a certified copy of an act of Cherokee national council accepting such accounting.
    “ The Speaker of the House of Representatives.” (House Ex. Doc. No. 182, 53d Cong., 3d sess.)
    NN. The report and accounting made by said James A. Slade and Joseph T. Bender, referred to in the foregoing finding, is in the words and figures which appear in House Executive Document 182, Fifty-third Congress, third session. The conclusion thereof is as follows:
    “ The foregoing statement covers, it is believed, every point at issue which can be raised under the treaties described in the articles of agreement; [a number of demands made by the Cherokee Nation were disallowed], and the result of the finding is submitted in the following schedule:
    ■“ Under the treaty of 1819:
    “ Value of three tracts of laud containing 1,700 acres, at $1.25 per acre, to he added to the principal of the ‘ School ’ fund_-— $2,125. 00
    “ (With interest from February 27, 1819, to date of payment.)
    
      “ Under treaty of 1835 :
    “Amount paid for removal of Eastern Clierokees to tlie Indian Territory, improperly charged to treaty fund_ $1,111,284.70
    “ With interest from June 12, 1838, to date of payment.)
    “ Under treaty of 1860 :
    “Amount received by receiver of public moneys at Independence, Kans., never credited to Cherokee Nation _^_ 432. 28
    “ (With interest from January 1, 1874, to date of payment.)
    “ Under act of Congress, March 3, 1893:
    “ Interest on $15,000 of Choctaw funds applied in 1863 to relief of indigent Clierokees, said interest being improperly charged to Cherokee national fund - 20,406.25
    “ (With-interest from July 1, 1893, to date of restoration of the principal of the Cherokee funds, held in trust in lieu of investments.) ”
    Washington, D. C., April 28, 1894.
    (Signed) Jas. A. Slade.
    Jos. T. BeNdee.
    XXI. In arriving at the item of $1,111,284.70 the accountants among other tabulations made the following statement of the account:
    “ Figuring upon the basis stated in the ninth article of the treaty of 1846, and following the Auditor’s and Comptroller’s figures in the accounting of December 3, 1849, and eliminating from the charges made against the total fund of $6,647,067, the excess of payments over the amounts appropriated by the United States for that purpose, the true statement of the account is as follows:
    For improvements_ $1, 540, 572. 27
    For ferries_ 159, 572.12
    For spoliations_ 264, 894. 09
    For removal and subsistence, being the amount actually provided and expended for these purposes, and consisting of the following items_{1^047’067'Oo} 1, 382,172. 91
    For debts and claims upon the Cherokee Nation_ 101, 348. 31
    For the additional quantity of land ceded to the nation. 500, 000. 00
    For amount invested as the general fund of the nation. 500, 880. 00
    For' subsistence furnished after expiration of one year, under agreement that it should be charged to treaty fund_ 172, 316. 47
    4, 021, 756.17
    
      For lands and possessions_$5, 000, 000. 00
    For spoliations_ 204, 894. 09
    Balance of $000,000 applicable to removal- 835,105. 91
    Appropriation of June 12, 1838- 1, 047, 007. 00
    0, 047, 007. 00
    From which deduct charges as above-j- 4, 621, 756.17
    Balance to be distributed per capita- 2, 025, 310. 83
    Deduct amount actually distributed ás already explained ___ 914, 020.13
    Balance due-.- 1, 111, 284. 70
    The sum of $914,026.13, actually distributed to the Eastern Cherokees in 1852, out of the above balance of $2,025,-310.83, was appropriated as follows:
    Amount found due by Treasury officials, under article 9, 1840, in the report of the Auditor and Comptroller of December 3, 1849_$627, 603. 95 Erroneous charge corrected by act of February 27, 1851- 96, 999. 42
    Erroneous charge account subsistence, corrected by Congress, September 30, 1S50-¿- 189,151. 24
    914, 026.13
    This amount of $914,026.13 was distributed solely to 14,098 Eastern Cherokees in the West and 2,133 Eastern Cherokees who remained East.
    Interest on the above sum of $914,026.13 at 5 per cent from June 12, 1838, was also appropriated by Congress and distributed per capita to said Eastern Cherokees in the same payment. The balance to be distributed'per capita according- to the above report and which was not distributed, to wit, $1,111,284.70, is the sum of which the Eastern Cherokees complain they were deprived in the settlement of 1852; that while they received only $56.31 per capita, excluding interest, they should have received the further sum of $1,111,-284.70, or a total of $2,025,310.83, as appears in the above account rendered as the true balance under article 9, making-them a total per capita of $124.78.
    The settlement made with the Old Settlers was as set forth in finding xviii.
    XXII. Neither the whole nor any portion of the various sums with interest found and stated by the concluding schedule of the so-called “ Slade-Bender report ” to be due to the Cherokee Nation under the treaties and acts of Congress therein referred to have been paid to the Cherokee Nation, or to any officer, agent, or other person acting in its behalf.
    With the exception of the provision contained in the act of March 2, 1895, making appropriations for the legisfative, executive, and judicial expenses of the Government, directing the Attorney-General to review and report upon the conclusion of law disclosed in the account of Slade and Bender, and the passing of the provisions of the acts of July 1, 1902, and March 3, 1903, conferring jurisdiction upon the United States Court of Claims to hear and determine these causes, the Congress has taken no action whatever with respect to the said account of Slade and Bender or the amounts found due thereunder.
    Acting under said direction of March 2, 1895, above referred to, the Attorney-General of the United States, on December 2, 1895, addressed a communication to the Congress wherein he advised that body of his disagreement with the conclusions reached by said Slade and Bender. Said communication of the Attorney-General was, on December 2,1895, by the Congress referred to the Committee on Indian Affairs and ordered to be printed, and the same appears in Senate Executive Document No. 16, Fifty-fourth Congress, first session.
    XXIII. The total acreage ceded by the Cherokee people to the United States at various times, as appears from Boyce’s History of the Cherokees (see Beport of Ethnological Bureau, 1884), is as follows:
    
      
    
    
      
      
    
    Upon the foregoing findings of fact the court decided as conclusions of law:
    First. That the United States is indebted to the Cherokee Nation in the following amounts, viz:
    (1) The sum of $2,125, with interest at 5 per cent from February 27, 1819, to date of payment;
    (2) The sum of $1,111,284.70, with interest at 5 per cent from June 12, 1838, to date of payment;
    (3) ’The sum of $432.28, with interest at 5 per cent from January 1, 1874, to date of payment;
    (4) The sum of $20,406.25, with interest at 5 per cent from July 1, 1893, to elate of payment,
    and is entitled to have judgment entered in its favor against the United States therefor.
    Second. The proceeds of so much of said judgment as pertains to the items numbered 1, 3, and 4 equitably belong to the Cherokee Nation as a political or social bodjq and such proceeds, less any proportion thereof which the Cherokee Nation may have contracted to pay on-account of counsel fees and other expenses of this litigation, should be paid or disposed of as follows, viz:
    
      (a) The amount represented by item numbered three (3) for $432.28 and interest, should be paid to the treasurer of the Cherokee Nation, or to such other person or officer either of the nation or of the United States as may hereafter succeed to his duties;
    (&) The amount represented by item numbered one (1), for $2,125 and interest, should be paid to the Secretary of the Interior in trust and credited on the proper books of account to the principal of the'“ Cherokee school fund,” of which fund the United States are trustees;
    (c) The amount represented by item numbered four (4), for $20,406.25 and interest, should be paid to the Secretary of the Interior in trust and credited on the proper books of account to the.“ Cherokee national fund,” of which fund the United States are trustees;
    
      (d) The amount represented by item numbered two (2), for $1,111,284.10 and interest, less counsel fees and expenses, equitably belongs to the Eastern and Western Cherokees who were parties either to the treaty of New Echota, proclaimed May 23, 1836, or the treaty of Washington, of August 6, 1846, as individuals, whether east or west of the Mississippi River, and should be paid to them or to their legal representatives by the Secretary of the Interior.
    Third. Such counsel fees as may have been contracted to be paid by the Cherokee Nation in the maimer prescribed by sections 2103 to 2106, both inclusive, of the Revised Statutes of the United States, and such other counsel fees and expenses as may be allowed by this court pursuant to the provisions of the act of March 3, 1903, set forth in Finding of Fact No. I, should be paid to the parties entitled to receive the same by the Secretary of the Treasury upon the making of an appropriation by Congress for the payment of the judgment in this cause.
    Fourth. The cost and expenses incident to ascertaining and identifying the individuals entitled to participate in the distribution of tlie balance of the amount represented by item numbered two (2), and the making of the distribution thereof, should be a charge upon such balance for distribution and should be deducted therefrom.
    
      Mr. Eclgar Smith, Mr. Frederick D. MeKenney, and Mr. Charles Nagel for the Cherokee Nation. Finhelmburg, Na-gel <& Kirby were on the brief.
    
      Mr. Robert L. Owen, Mr. R. V. Belt, and Mr. 'William H. Robeson for the Eastern Cherokees. Scarritt & Cox, Mr. M. C. Butler, Mr. John Vaile, Mr. James K. Jones, and Mr. W. T. Crawford were on the brief.
    
      Mrs. Belva A. Locktuood for Eastern and Emigrant Cherokees.
    
      Mr. Assistant Attorney-General Pradt for the United States {Mr. George H. Gorman was on the brief) :
    For the purpose of winding up all controversy with the Cherokee Nation for all time to come, the Congress appropriated $724,603.37 and allowed interest on the same at the rate of 5 per cent per annum from June 12, 1838. (9 Stat. L., 572-573.) The following provision was attached to the appropriation:
    
      “Provided, however, That the sum now appropriated shall be in full satisfaction and in final settlement of all claims and demands whatsoever of the Cherokee Nation against the United States under any treaty heretofore made with the Cherokees, and the said Cherokee Nation shall, on the payment of said sum of money, execute and deliver to the United States a full and final discharge from all claims and demands whatsoever on the United States, except such annuities in money or specific articles of property as the United States may be bound bj>- any treaty to pay to said Cherokee Nation, and except, also, such money and lands, if any, as the United States may hold in trust for said Cherokees: And provided further, That the money appropriated in this item shall be made in strict conformity with the treaty with said Indians of August 6, 1848.”
    In the year 1852 this money, together with the further, sum of $189,422.76, which had theretofore been alloAved for .subsistence, making a total of $912,026.13, was duly paid to the Cherokee Nation, and a receipt was taken from the Cherokees in the precise language provided for in the act.
    If this was not a final and complete settlement of all sums due under the treaty of 1835 and 1836, and the treaty of 1846, it is difficult to see how any final settlement can ever be reached between parties. It was a settlement deliberately entered into upon 'the basis of charging the cost of removal to the treaty fund. Ity this settlement the United States charged the Cherokees $53.33 per capita for removal and subsistence. This sum is made up of $20 per capita for removal and $33.33 for one year’s subsistence, as provided by the treaty of 1835, while the United States did in fact pay $61.10 per capita for the removal of 2,200 Cherokees and $1,357,745.92 to the Cherokee Nation for the Cherokees transported bjr John Ross, representing a cost of over $103 per capita.
    
    As to the conclusiveness and legality of the receipt signed by the Indians when receiving payment in 1852 there can be no question, even conceding that they were entitled to a greater sum than the amount paid. In the case of United States v. Adams (7 Wall., 463) and the case of United States v. Child (12 Wall., 232) there was a voluntary acceptance by the claimant of a smaller sum than their claim, as a full satisfaction of the whole, and acknowledging this in a receipt for the amount paid, the. demand having been disputed for a long time by the Government and a smaller sum accepted without protest or objection. The Supreme Court held that such acceptance, being without force or intimidation and with a full knowledge of all the circumstances, was binding and conclusive and precluded suit for the remainder of the money claimed. The Supreme Court further held that the fact that the sum was so large that the claimants were induced by their want of money to accept such less sum in full was not duress. In the case of United States v. Child (12 Wall., at page’243), Mr..Justice Miller observed:
    “ We lay out of view in this case, as in the Adams case, the receipts which they gave, under protest, in order to regain possession of their vouchers. But we can not disregard the finding of the Court of Claims that, after Congress had appropriated money to pay the sums found due by the commissioners, the claimants received the amount so allowed and signed upon each voucher a receipt whereby they acknowledged having received said reduced amount ‘ in full of the above account.’ And that at the time of receiving this payment they made no formal objection or protest, but were required to and did sign the receipt above described.”
    This is precisely the situation at bar. Prior to the accept.-, anee of the money appropriated I believe the Cherokees did make some sort of protest, but the fact remains that they received the money and signed the receipt in full, and at the time of receiving the money made no protest whatsoever. The settlement, therefore, was binding, conclusive, and final upon them, just as it was upon Child in the case above cited. (Vide also United States v. Garlinger, 169 IT. S., 3TT, pp. 322-323.)
    The Western Cherokees, having been charged with commutation of subsistence under the provisions of article 4 of the treaty of 1846, a special act was passed by Congress on February 25, 1889, as follows:
    “ That the claims of that part of the Cherokee Indians known as the Old Settlers or Western Cherokees is referred to the Court of Claims for adjudication, and jurisdiction is hereby conferred on said Court of Claims to try said cause and to determine what sum or sums of money, if any, are justly due to said Indians arising from and growing out of the treaty stipulations and acts of Congress relating thereto, it being the intention of this act to allow'the Court of Claims unrestricted latitude in adjusting and determining the said claim so that the rights, legal and equitable, both of the United States and said Indians niay be fully considered and determined, and to try and determine all questions that may arise in such cause on behalf of either party thereto and render final judgment thereon.”
    Under the provisions of this act the petition of the Western Cherokees was duly filed in the Court of Claims, setting forth their entire claim, with most of which we have not here to do, as it does not pertain to the issue here involved. They, first set up the claim that the treaty of 1835 was obtained by fraud and duress and was not binding upon them, but the Court of Claims held that the court could not go behind the treaty of 1835, notwithstanding the seemingly unlimited powers conferred on the court bjr the special act, for the reason that the act also provided for an appeal to the Supreme Court, whose powers could neither be enlarged nor diminished b]»- an act of Congress, and hence that the Congress could not confer extrajudicial power, holding that a treaty is a part of the supreme law of the land, which no court in this country, either court of law or equity, can declare to have been procured by duress or fraud and treat as inoperative. And this decision was áffirmed by the Supreme Court upon appeal. (See 27 C. Cls. R, 36, and 148 U. S., 468.) The court therefore took the treaty of 1846 and the ultimate declaration and determination of the issues in dispute between the whole Cherokee Nation and the United States, and proceeded to adjudicate the rights of the respective parties under that treaty. One of the questions embraced in this suit was whether the cost of removal- of the Eastern Cherokees to the Indian Territory was to' be borne bjr the United States or by the Indians.. The court construed the treaty and arrived at the conclusion that such expense must be borne by the Indians and must be charged to the treaty fund. (Of course, by the terms of the treaty of 1846, it was provided that the cost should be determined upon the per capita arrangement of that portion of the treaty of 1835 which provided for the removal of those Cherokees who went voluntarily, to wit, the sum of $20 per head; but this applied only to the Western Cherokees, and was not limited in amount so far as the Eastern Cherokees were concerned.)
    The court concurs in the contention that the cost of subsistence for one year after the removal of the Eastern Cherokees and the cost for the removal and subsistence of the African slaves are not to be charged against the treaty fund, and proceeds to further examine the question of the cost of removing the Eastern Cherokees after 1838,. and it is perfectly manifest that the court has decided that the cost of removing all of the Cherokee Indians has to be borne by the Indians and paid out of the treaty fund of $5,600,000.
    
      Upon appeal to the Supreme Court of the United States, that court, speaking through Mr. Chief Justice Fuller (148 U. S., 475), in speaking of this branch of the case, said:
    “ It is agreed by article 4 of the treaty of 1846 that, so far as the Western Cherokees were concerned, in estimating the expenses of removal and subsistence of an Eastern Cherokee to be charged to the aggregate fund, the sums for removal and subsistence stipulated in the eighth article of the treaty of 1835 as commutation money should be adopted. That commutation was placed in the eighth article at $20 per capita for removal and $33.33 for subsistence. The persons composing the treaty' party voluntarily emigrated to the Indian Territory prior to 1838 to the number of 2,200, and they took with them 295 slaves of African descent. The Court of Claims properly considered that the expenses to be deducted could only apply to Cherokees, and therefore that the. slaves could not be included in making the deduction as between the Western Cherokees and the United States, but to the 220 the court added the 14,757 Eastern Cherokees who were removed in 1838, and, rejecting any deduction for subsistence, charged the commutation price of $20 for 16,957 persons. We are satisfied from a careful examination of the evidence that the number was determined with all the accuracy possible, and should not be disturbed. And in view of the decision of the Senate by the adoption, September 5, 1850, of the first resolution, reported August 8, 1850, it is obvious that the expense of subsistence should not have been and should hot be deducted.”
    The decision of the Supreme Court was rendered on April 3, 1893, and it is manifest that at that date the question of whether the expense of removing the entire band of Eastern Cherokees to the Indian Territory ivas to be borne by the Indians had been judicially determined and set at rest by this court and by the Supreme Court in the opinion holding that the same must be borne by the Indians and the cost thereof charged against the treaty fund of $5,600,000. The question of fact was then, as is now, res judicata, and the question of law was then and is now stare decisis.
    
    The opinion seems to have been concurred in by the Assistant Attorney-General for the Interior Department and also by the Secretary of the Interior that the Indians had no title in fee to the strip of country contained in the Cherokee Outlet, but only an easement or servitude which had long since been abandoned; but conforming to the spirit of unbounded liberality which had hitherto actuated the United States in dealing with these Indians, it was recommended that the sum of $1.25 per acre be paid to the Indians for this strip of land, notwithstanding their lack of proprietorship in fee.
    With relation to the provisions of article 2, section 4, of the agreement between the United States commissioners and the commissioners on behalf of the Cherokee Indians, with relation to the stating of an account, the attention of the court is called to the report of the Commissioner of Indian Affairs (Morgan), Senate Executive Document No. 56, Fifty-second Congress, first session, page 8.
    Ity the act of March 3, 1893 (21 Stat. L., 640-643), the Congress, with certain exceptions and amendments, ratified the agreement made between the United States commissioners and the commissioners on behalf of the Indians for the purchase of the said Cherokee Outlet, and, with relation to article 2 of section 4, provided as follows:
    “ The sum of five thousand dollars, or so much thereof as may be necessary, the same to be immediately available, is hereby appropriated out of any moneys in the Treasury not otherwise appropriated, to enable the Commissioner of Indian Affairs, under direction of the Secretary of the Interior, to employ such expert person or persons to properly render a complete account to the Cherokee Nation of moneys due said nation, as required in the fourth subdivision of article 2 of said agreement.”
    Pursuant to this act of Congress, the Secretary of the Interior appointed the expert accountants provided for in this act, to wit, Mr. James A. Slade and Mr. Joseph T. Bender, the one a clerk from the office of the Commissioner of Indian Affairs and the other a clerk from an auditor’s office, as expert accountants to render the full and complete accounts provided for in the aforesaid article of the agreement. On April 28, 1894, these accountants, neither of whom was a lawyer, and neither of whom had ever had any legal or judicial training, experience, or knowledge, rendered their report to the Secretary of the Interior (Ex. Doc. No. 182, 53d Cong., 3d sess.), wherein-they reviewed not only the facts and accounts between the Government and the Indians, but undertook to construe and pass upon the legal effect of every treaty made between the United States and the Cherokees from 1817 down to 1866, and, holding that the treaty of 1816 did not in any wise amplify, change, or modify the treaty of 1835, thejr reported that:
    “ It is evident from the use of the word ‘ properly ’ in this section, that it was not the intention to increase or enlarge the deductions which were to be made from the treaty fund, either in numbers or in character. Whatever was properly chargeable under the fifteenth article of the treaty of 1835 was also properly chargeable under the ninth article of the treaty of 1816, but nothing more.”
    Proceeding upon this remarkable legal theory, and in sublime indifference or disregard of historical facts, and likewise in utter disregard of the final settlement made between the United States and the Indians and the final receipt given to the United States by the Indians when receiving the money under the act of 1852 above set forth, these accountants reported, among other indebtednesses, that the United States is indebted to tire Cherokee Indians for the cost of removing them to the West, the sum of $1,111,284.70, in addition to the $1,647,000 hitherto paid by the United States for that purpose, among others.
    It is small wonder that this remarkable report of Messrs. Slade and Bender should have greatly surprised the Congress, and on March 2, 1895, the Congress transmitted said report to the Attorney-General of the United States, with directions to review the conclusions of law reached by these expert accountants. On December 2, 1895, the Attorney-General made his report to Congress (Senate Ex. Doc. No. 16, 54th Cong., 1st sess.), wherein, upon this point, he said:
    “ I am unable to agree with the suggestion made in the report of the Department of the Interior that the construction of article 9 of the treaty of 1846 is that it was intended to make no change whatever in the treaty of 1835. This claim is based chieity on the use of the word ‘ properly.’ The United States agreed to make a fair and just settlement of all moneys due to the Cherokees under the treaty of 1835, which said settlement shall exhibit all moneys properly expended under said treaty. If nothing more was intended than a mere reiteration of the obligations of the treaty of 1835, without an attempt to settle its disputed construction, it is difficult to imagine any occasion for the treaty.”
    The Attorney-General thereupon held that the amounts charged against the -Indians -for the expenses of removal were properly charged under the provisions of the treaty of 1846, and that the account of Messrs. Slade and Bender was, as a matter of law, incorrect and fallacious.
    We have shown, it seems to us conclusively, that under a proper construction of the treaty of 1835-36, the treaty of 1846, and the settlement of 1852 the Cherokee Indians have not been improperly charged with any expense of removal, but, on the other hand, have been most generously dealt with.
    The 'question at issue never having been submitted to Slade and Bender as arbitrators, it follows that their .report can not be an award.
    Slade and Bender were appointed as agents of the United States Government and not otherwise to prepare an account which the United States promised to render. Their function was limited to the scope of the ■ preparation of this account, this rendering of the receipts and expenditures, the debits and credits of the transactions between the Indians and the United States. Their function was limited to this; and if they had been chosen .in the most formal and solemn manner as arbitrators by both jiarties to render such account, they could not arrogate to themselves the power to construe treaties and laws, much less to ignore deliberate settlements by the parties, for the principle is familiar that an arbitrator can never transcend the scope of his authority in order to do what he may think is justice.
    Though the courts wish to have a submission and award terminate as many disputes as are reasonably and rightfully within their scope, still disputes not included, though so cognate that their annexation would have been highly natural and proper, will not be added by a forced construction. For instance, where a submission recited that A had claims against his father’s estate, and that the parties, “ desirous of closing the matter, referred all matters in controversy,” it was held that only the matter specified was referred and that counterclaims of the executor against A were not included. (Scott v. Barnes, 7 Barr., 134; Morse on Arbitration and Award, p. 64.)
    So it is equally well settled that the arbitrator can not vary or modify the precise question submitted and substitute in place of the matter which the parties wished to have decided some other similar, cognate, or collateral point bearing upon the same general subject or some other form of the same controversy. For example, where a boundary line has once been determined by an award, but has again become a subject of dispute, a submission to a new arbitrator, by a proper construction of its language, confines him to the task of retracing, so nearly as he could, the line determined by his predecessor. Held, that his running a new line on the basis of his own judgment as to what was the correct boundary was in excess of authority and avoiding the award. (Worthen v. Stevens, 4 Mass., 448.)
    In Morse on Arbitration and Award, page 183, it is said:
    “ So also the arbitrator will often be tempted, without actually including as in the preceding cases under other distinct claims, yet to take the whole subject-matter out of which the controversy grows into his consideration and to seek to do a large and liberal equity concerning the whole of it bjr making an award of a more extensive character than he would be authorized to do by the strict-terms of the submission. But the following adjudications will show that this course, however much it may seem to have to excuse or even to recommend it in any particular case, is a fatal infringement of the rule which requires the authority contained in the submission to be rigidly respected and adhered to.”
    Following this text the learned author cites many cases to illustrate the rule thus laid down.
    Following this well-known and indisputable doctrine, which lies at the foundation of all awards under submission, it is readily seen that even if it should be conceded that Slade and Bender were made arbitrators under the agreement of 1891 for the rendition of an account between the United States and the Indians, which said account should be mutually binding, they would, nevertheless, be strictly limited to this matter of account, and would in nowise be authorized to take upon themselves the construction of treaties, the avoidance of prior settlements, and the exercise of judicial functions not authorized in the terms of the submission, and any account which should be based upon any such usurpation of power would be absolutely null and void, i The appointment of Slade and Bender to render an account between the United States and the Cherokee Indians, pursuant to article 3 of the treaty of 1891, was not authority on their part to bind the United States in any account stated so far as such account went beyond the matter of bookkeeping and entered the domain of legal construction; and the report made b}r them is in nowise analogous to an account stated and balance struck between the parties.
    An account stated is an agreement between parties who have had previous transactions of a monetary character that all of the items of the accounts representing such transactions are true and that the balance struck is correct, together with a promise, express or implied, for the payment of such balance. It operates as an admission of liability from the person against whom the balance appears; or, in the language of the common law, “ the law implies that he against whom the balance appears has engaged to pay it to the other; ” and upon this promise an action may be brought.
    The rule had its origin in the practice of merchants, and was originally adopted by courts of chancery as applicable to merchants only. In the case of Sherman v. Sherman, decided in 1692 (2 Verm, 276), Lord Hutchins said:
    “ Amongst merchants it is looked upon as an allowance of an account current if the merchant that receives it does not object against it in a second or third post.”
    In Ticl&el v. Short (2 Ves., 329, decided in 1751), Lord Hardwicke said:
    “As between merchants in different countries, when an account sent by the one to the other is kept without objection about two years, the rule with the court of chancery and with merchants is that it is considered a stated account.”
    In some jurisdictions the courts have refused to extend the rule of the law merchant with relation to accounts stated beyond controversies between merchants themselves. See, for example, McCord v. Nanson, 17 Ill. App., 121; Green v. Smith, 52 Ill. App., 158; Anding v. Levy, 57 Miss., 51; Rich v. Elclreclge, 42 N. IT., 153; Brown v. Van Dyke, 8 N. J. Eq., 795.
    In other jurisdictions, however, the rule is extended so as to be applicable between all classes of business men. See, for example, Brown v. Kimmel, 67 Mo., 430; Hawkins v. Long, 74 N. C., 781.
    The distinction, however, is really more in terms than in substance, the courts which hold the rule to be applicable generally, regarding- the intention of the account, as in no case conclusive to the extent that upon the admission or finding of the fact of retention for a sufficient length of time unexplained, the account becomes, as a necessary consequence, a stated account, as under the chancery rule for merchants, but merely as evidence from which the acquiescence may be inferred; while courts restricting the rule to dealings of merchants allow the fact that an account was retained without objection in any case to go to the jury, but consider that the weight to be given to the fact depends upon the business, character, and education of the parties and their local situation. Whether viewed in the one light or the other, an account stated is not an estoppel, but merely piima facie evidence.
    In Brown v. Kimmel (67 Mo., 430) it was said:
    “ It will readily be perceived on an examination of the numerous authorities reported on this subject that they have been decided on the peculiar circumstances attending each case, and most generally in proceedings in equity. In no case' has such implied admission been held to be an estoppel, but simply a prima facie case, throwing the burden of contradiction or explanation on the adverse partjr.”
    See also Lockwood v. Thorne, 18 N. Y., 285; Quincy v. 'White, 63 N. Y., 370; Perkins v. Hart, 11 Wheat., 237; Clark v. Marbourg, 33 Kans., 471; McKay v. Overton, 65 Tex., 82; Jefferson County v. Jones, 19 Wis., 51.
    It can not for a moment be contended that the United States ever actually or impliedly acquiesced in the conclusions of Messrs. Slade and Bender to the effect that the United States were indebted to the. Indians for the cost of removal. When this report was made and transmitted to Congress, Congress immediately repudiated it, and has ever since refused to recognize or pay it, and therefore the very essential quality of an account stated — the implied promise to pay arising from nonaction — is wholly lacking in the case at bar, even if the report of Slade and Bender had any analogy to an account stated.
    In addition to the distinction hitherto pointed out, this report of Slade and Bender could not possibly be regarded in the light of an account stated, for the reason that it is thoroughly well settled that accounts audited and settled by public officers, whether in the regular course of business or under the direction of some special statute and relating to the affairs of the Government, do not amount to accounts stated, although done with the knowledge, consent, acqui-' escence, and assistance of the person holding the claim against the Government. In the case of Nutt v. United States (23 C. Cls. R.., 68), the Quartermaster-General, under direction of an act of Congress, examined and adjusted the claim of Julia A. Nutt, and reported the same to Congress, where it was paid in part. A suit was instituted in this court for the recovery of the balance, upon the ground that the report of the Quartermaster-General was, first, an award, or, second, an account stated. This court held that it Avas neither the one nor the other.
    In affirming this case the Supreme Court, through Mr. Justice Matthews (125 U. S., 650, at p. 655), said:
    “ The same reasons dispose of the second proposition, and show that the report of the Quartermaster-General is no more an account stated between the parties than it is an arbitration and award. In order to constitute an account stated between individuals the statement of the account must be adopted by one party and submitted as correct to the other. But here Congress did not adopt the report of the Quartermaster-General as its statement of what was due from the United States; nor Avas the report submitted to the claimant as a correct statement of the indebtedness.”
    The case of the State v. Brown (10 Oreg., 215) xvas an action brought by the State of Oregon against Brown, to whom, through the secretary of state, had been paid a sum of money which it was alleged was not properly due to him. By a provision of the State constitution it was made the duty of the secretary of state to superintend the fiscal concerns of the State and manage the same in the manner prescribed by law; to examine and determine the claims of all- persons against the State in cases where provisions for payment thereof shall have been made by law, and to indorse upon the same the amount due and allowed thereon and from what fund the same is to be paid, and draw a warrant on the treasury for the same. Brown’s account was duly presented to the secretary of state, who, under the provisions of the State constitution above referred to, examined, audited, and allowed the same, drew his warrant upon the treasury, and the same was paid. Upon its being subsequently discovered that the payment was unlawful, the State instituted suit against Brown to recover back the money paid, and Brown’s defense was that the auditing and payment of this claim by the secretary of state, under the provisions of the constitution, was an admission of the amount due and merged the transaction into an account stated, and that the State was estopped from bringing this action. But it was held by the court that the presentation of the claim against the State and its allowance by the secretary did not constitute an account stated so as to preclude an inquiry as to its correctness in an action at law brought by the State for the sum of money alleged to have been unlawfully allowed in said account and paid by the State.
    In the case at bar Slade and Bender were appointed to go through the whole Cherokee accounts, ascertain their correctness, check,up the bookkeeping, and bring the account down to date. They were not authorized to construe treaties, to ignore deliberate settlements theretofore made by the parties, to reverse constructions put upon treaties by the United States and accepted by the Indians for years. They were not authorized to pass upon vexed questions of law and bind the United States by their conclusions, whether said conclusions be arranged in the form of debit and credit or not. If it had been the desire of Slade and Bender to have made an arithmetical statement of the amounts which had been expended for the removal of the Cherok'ees, and the excess of that amount over and above the appropriations of Congress for that purpose, then they should have rendered the account as an account, and not ás a conclusion of law— that is to say, the account should have been:
    “ If it shall be determined by proper authority that the United States, under the various treaties and negotiations with the Indians, are to bear the total actual cost of removal, then the account would be as follows: ”
    In conclusion 'it is respectively submitted that under a proper construction of the treaties of 1835-36 and 1846 the United States have properly charged the cost of removal to the treaty fund, and are not indebted to the claimants.
    Second. That this entire claim was settled and adjusted in 1852, when nearly a million dollars were paid to the Indians and by them accepted in full and as a complete discharge of all debts whatsoever arising out of any treaty stipulation between the United States and the Cherokee Indians.
    Third. That the settlement so made was not reopened by the provisions of article 3 of the treaty of 1891, and that the account there referred to was intended to be merely a restatement of the debits and credits between the United States and the Indians and did not reopen any issue of law or previous settlement.
    Fourth. That the report made by Slade and Bender is in no sense an award or an account stated, and in its conclusion of law is in no sense binding upon the United States.
   Nott, Ch. J.,

delivered the opinion of the court:

In December, 1891, the United States and the Cherokee Nation entered into an agreement for the purchase and sale of a great tract in the Indian Territory known as the Cherokee Outlet. At the time of this negotiation the Cherokees had a grievance against the United States — a grievance which had burned in the breasts of two generations, and had never been forgiven or forgotten. That grievance was the treaty of 1835, commonly known as the treaty of New Echota' — the corrupt method bjr which it had been procured, the ruthless means by which it had been executed, and the evasive way in which its obligations had been left unfulfilled. The history of this treaty and its consequences have been examined and set forth by this court, and need not be repeated here. (Western Cherokees v. United States, 27 C. Cls. R., 1.) It is enough to say that “ the treaty of New Echota was the act and deed of neither the Eastern nor Western Cherokees,” and that neither the Cherokee people nor the Cherokee government ever acknowledged it. In the words of Eoss, they said in a memorial to Congress December 15, 1837:

“ We complain of sending among us a large armed force, of the attempts made to prevent the expression of opinion among us, of the arrest and imprisonment of our persons, of the expulsion of our people from their homes; for which even the document in question furnishes no ground or cause. All these, however, sink into insignificance when compared with the one overwhelming calamity, present and prospective, of having the instrument of December, 1835, enforced upon us and our people.”

And in that remarkable petition submitted to Congress, bearing date February 22, 1838, signed by 15,665 of the Cherokee people, the whole nation reiterated, “ We do solemnly and earnestly protest against that spurious instrument.”

But while the Cherokee people always maintained that the treaty of New Echota was falsely executed in their name by a few unauthorized, unofficial persons, corruptly suborned by an agent of the United States, they nevertheless were compelled by the condition of affairs in the Cherokee country and by the overwhelming power of the United States to, in a measure, adopt it through the instrumentality of the Cherokee treaty of 1846 (9 Stat. L., p. 871), of which this court has said:

“ That treaty was a compact between three parties — the United States, the Eastern and the Western Cherokees. Its purpose was to make the Eastern and Western Cherokees parties to the treaty of New Echota, which they had never conceded themselves to be, and to secure peace in the Cherokee country. The principle upon which it sought to accomplish this purpose was, that, on the one hand, the Western Cherokees should participate in the purchase money which bad been paid for the lands east of the Mississippi, and, on the other, that they should abandon their autonomy and become subject to the government which had been established by the Eastern Cherokees.
“ The reason behind the 2orinciple was that in 1835 the Western Cherokees owned the Cherokee country West, and had paid for it, and that the Eastern Cherokees acquired by the terms of the treaty of New Echota two-thirds of this without paying for it, and at the same time retained all of the purchase money which had been given for their possessions east of the Mississippi. A portion of this purchase money had been expended for the use of the Eastern Cherokees and a portion continued to be held as a trust for their benefit; the remainder had been paid to them per cafita.
“ If their removal had been effected on the same terms as that of the'Western Cherokees, under the treaty of 1828 they would have received land in the Indian Territory in exchange for land east of the Mississippi.
“As it was, they had received both land and money ; but the land was the land of the Western Cherokees. Strictly, the Government should have paid the Western Cherokees for the lands thus appropriated, and should have deducted the price from the money paid to the Eastern Cherokees. It was now sought by the treaty of 1846 to accomplish this in an indirect way; the Western Cherokees were to be admitted ab initio to a quasi partnership or joint ownership, by the terms of which they were to contribute the land in the Indian Territory and share in the proceeds of the land east of the Mississippi.
“ By the terms of this arrangement the Eastern Cherokees consented to their sharing in the purchase money so far as it Avas still held by the United States in the form of trusts and annuities; and the United States agreed that so far as it had been paid away to individual Indians and could not be restored they should pay it over again, and thus make good to the Western Cherokees their rightful proportion in the fund.” (Western Cherokees v. United States, 27 C. Cls. R., 1, 36.)

Having thus become indirectly and unwillingly parties to the treaty of New Echota the Eastern Cherokees, nevertheless — that is to say, all of those Cherokees who were divested of their lands.east of the Mississippi by the treaty of New Echota in 1835 — have steadfastly and persistently maintained that that treaty, harsh and inexorable as it was, has never been carried into effect according to the true import and ostensible intent of its provisions.

In 1891 the Cherokee people and the United States were confronting each other for the last time as vendors and purchasers of land. The Cherokee Outlet was then the last remnant of territory to be ceded, and in a few years the autonomic government of the nation was foreordained to cease. The Cherokee commissioners were true to their people and their fathers in demanding as a condition to the cession and as an addition to the specified consideration for the grant ($8,300,000) that all of the past treaty transactions between the United States and the Cherokee Nation should be reopened; that their demands should be reconsidered; that the moneys which might be equitably and justly due to them should be paid, and that in the final determination of these matters they should have, if they desired it, access to the judicial tribunals of the United States. These demands were acceded to by the Government of the United States, and were ratified and approved by Congress (27 Stat. L., p. 640, §10). They found expression in the following formal agreement:

“ The United States shall, without delay, render to the Cherokee Nation, through any agent appointed by authority of the national council, a complete account of moneys due the Cherokee Nation under any of the treaties ratified in the the years 1817, 1819, 1825, 1828, 1835-36, 1846, 1866, and 1868, and any laws passed by the Congress of the United States for the purpose of carrying said treaties, or any of them, into effect; and upon such accounting, should the Cherokee Nation, by its national council, conclude and determine that such accounting is incorrect or unjust, then the Cherokee Nation shall have the right within twelve months to enter suit against the United States in the Court of Claims, with the right of appeal to the Supreme Court of the United States by either party, for any alleged or declared amount of money promised but withheld by the United States from the Cherokee Nation, under any of said treaties or Taws, which may be claimed to be omitted from, or improperly or unjustly or illegally adjusted in said accounting; and the Congress of the United States shall, at its next session, after such case shall be finally decided and certified to Congress according to law, appropriate a sufficient sum of money to pay such judgment to the Cherokee Nation, should judgment be rendered in her favor; or, if it shall be found upon such accounting that any sum of money has been so withheld, the amount shall be duly appropriated by Congress, payable to the Cherokee Nation, upon the order of its national council, such appropriation to be made by Congress, if then in session, and if not, then at the session immediately following such accounting.”

There was at the time when this agreement was entered into no understanding or supposition as to how the United States should render the account called for. The representatives of the United States did not themselves know. This is shown incontestably by the fact that soon afterwards the Commissioner of Indian Affairs, in response to some inquiry, reported to the Senate:

“ I have the honor to say that if this section is construed to require the United States to state an account of moneys stipulated to be paid to the Cherokee Nation, under the treaties therein specified, and under the various appropriation acts passed to carry the same into effect, this account could be prepared by this office within a reasonable time — ■ say, about two months. If, on the other hand, it be construed to require a detailed statement of all the moneys received and disbursements made by the United States of the Cherokee funds under said treaties and acts of Congress, which seems to me to be the intention of the parties negotiating the agreement, it would require the services of an expert accountant, with assistants, probabty twelve months or more to review and copy the Cherokee accounts and records running back nearly a century. In order to prepare a statement of this kind it would require an appropriation by Congress of the sum of at least $5,000 to pay for the services of an expert accountant.”

Congress adopted the latter alternative, and, by the Act 3d March, 1893 (27 Stat. L., pp. 612, 643, § 10), appropriated $5,000 to enable the Commissioner “ to employ such expert person or persons to properly render a complete account to the Cherokee Nation of moneys due,” etc. Two accountants were selected by the Commissioner of Indian Affairs (Messrs. James A. Slade and Joseph T. Bender), who, after a prolonged examination, in 1894 handed in their account. It resulted in allowing three items of trifling amount, which the United States conceded, and in disallowing items which the Cherokee Nation claimed; and on the great and important subject in dispute — the treaty of New Echota — it found a balance of $1,111,284.70, and it allowed interest upon this balance from June 12, 1838. The account sets forth, items and amounts and facts and reasons and conclusions, much in the form of an award; and it is not surprising that it was regarded by some persons as such and by other persons as having been intended to be such by the accountants. But the agreement did not provide that the account should be made by any specific person mutually agreed upon as umpire, or by clerks or accountants or auditors or arbitrators. All that it says is that “ the United States shall, without delay, render to the Cherokee Nation a comflete account.” It is the United States, one of the parties, which is to do this, and not an intermediary agreeable to both parties. The United States are left free to make up the account in any manner their please; and the account, when rendered, will not be conclusive or prima facie for or against the Cherokee Nation. The one thing that is certainly assured to the Nation, and the only thing, is that the account will be the portal through which the Cherokee Nation can carry the rights and the wrongs of its people into a judicial forum.

At this point the uncertainties and the controversies of the case begin. When the account came in (April 28, 1894) the Secretary of 'the Interior (who occupies the same position with regard to Indian nations and tribes that the Secretary of State does with regard to foreign nations) transmitted it (May 21, 1894) to the Cherokee Nation. The nation accepted it (December 1, 1894) and signified their acceptance, thereby waiving the items which the accountants had disallowed and its right to carry those rejected items into the 'courts of the United States. On January 7, 1895, the Secretary of the Interior transmitted the account, together with the acceptance of the Cherokee Nation, to the House of Representatives.

Congress did not make the appropriation in the manner prescribed in the agreement — “ such appropriation to be made by Congress if then in session, ancl if not, then at the session immediately following such accounting” — but, on the contrary, did nothing. At the end of the session the House of Representatives, on the 2d of March, 1895, called on the Attorney-General for an opinion concerning the conclusions reached by the accountants. The Attorney-General made bis reply at the beginning of the next session in December following. The second session, “ the session immediately following such accounting,” passed without Congressional action of any kind. On the 20th of February, 1901, the Senate ^transmitted to the Court of Claims a bill calling for a report of the facts. On April 28, 1902, the court-transmitted to the Senate its -findings of fact under such reference, but expressed no opinion upon any question of law. Not until the 1st of July, 1902, did Congress act, and their action was merely passing the jurisdictional statute under which the court is now acting. (32 Stat. L., p. 716.)

On the trial of this case the arguments extended over a very wide range of fact and law, going back to the treaty of New Echota and coming down to the questions whether the account of Messrs. Slade and Bender could be considered as an award or as an account stated.

In the opinion of the court the account can not be regarded as an .award; in the opinion of the court it does not have one element of an award. An award is the result of an examination in some form or other by a person mutually agreed upon. In building contracts courts have constantly before them stipulations that certain things shall be decided- bjr the architect, or by the engineer in charge, whose decision shall be final. Such awards, within proper limitations, are to be upheld. But in the agreement now before us there is not so much as the suggestion of a person who shall act as umpire or of a matter to be submitted to him. All that the. agreement requires, as before has been said, is that one of the parties, the United States, shall render to the other their account. Flow they shall render it, in what form they shall render'it, to what extent they shall render it, is left entirety to themselves. ■ It is to be the account of the United States and not the account of some person acting for both parties. Before there can be an award, having the element of finality, there must be something mutually submitted to somebody. Such was not the case here.

Neither can the court regard it as an account stated. An account stated is something arising in the ordinary course of business between men having continuous business transactions. When one of them, the creditor, makes out an account and the other, the debtor, accepts it, an action will lie upon it. The acceptance may be express or implied. If the one sends it and the other raises no objection to it within a reasonable time, the law merchant holds that he assents to it; and then, if he did not object when he should have 'objected, that he will be estopped from objecting. The account rendered then becomes an account stated, from which the law will imply a promise to pay the balance appearing to be due, and upon which an action may be brought. The Slade and Bender account does not contain these elements. It is the creditor and not the debtor who furnishes an account stated; it is the debtor and not the creditor who must assent to it. This account was merely “ rendered ” and by the debtor, and under a specific agreement which provides what shall be done with it. The question is not whether it ivas or was not an account stated, but what may be the liabilities of the parties under the specific agreement.

But while the account ivas neither an award nor an account stated, it must be conceded that the scope of the accounting was intended to be as broad as the causes of action secured by the agreement to the Cherokee Nation “the right within twelve months to enter suit against the United States in the Gourt of Claims for any alleged or declared amount of money promised hut withheld hy the United States from the Gheroltee Nation, under any of said treaties or laws, which may he claimed to he omitted from or improperly or unjustly or illegally adjusted in said accountings That is to say, the court, or the accountants, were to go behind statutory and -treaty bars and receipts in full and were to -consider “ any alleged or declared amount of money promised but withheld ” “ under any of said treaties or laws.” This meant that there were to be no technical defenses set up, no pleas of res judicata, no releases or relinquishments, compromises or settlements; or it meant nothing. For if the proposed suit of the Cherokees was to be decided strictissimi juris, i. e., upon technical defenses, it had already been decided against them.

That decision was not against the Cherokee Nation, but it was against Cherokee citizens. The Cherokees have main-tamed from tlie 'first and always that to make them pay for their removal from homes which they did not wish to leave to a country to which they did not wish to go was a monstrous abuse of the obscure provisions of a treaty which they bad not read, which they had not signed, and to which they had not in fact been parties. “ Immediately before, and up • to the time of the eviction of the Cherokees, the Government had been carrying on a negotiation with their delegates who had submitted certain propositions looking toward a new treaty. On the 18th of May, 1838, Mr. Poinsett, Secretary of War, communicated his objections of them to the delegates, but at the same time made to them an offer, the substance of which was that if the Cherokees would ‘ remove peaceably and contentedly to their new homes in the West ’ the United States would defray the expenses of their removal and subsistence. This offer bears date only five days before the eviction began. It was not accepted by the Cherokees, but seems to have been tacitly acquiesced in, they removing peaceably if not contentedly, .and subsequently claiming that the cost of removal and subsistence should not be borne by themselves.” (Western Cherokees v. United States, 27 C. Cls. R., 1, 44.) Yet the court was obliged in that case to hold, according to the letter of the law (the treaties, the statutes, the acquittances) ,that the cost of removal was to -be a charge upon the $5,00t),000 treaty fund and to be borne by the Cherokees.- It is manifest that the agreement, here, intended something more than that the Cherokees might come into court to be immediately turned out under previous decisions. Interpreted in the light of the long, sore controversy which had existed between the parties, it is plain that the Cherokees believed the agreement to mean (and the United States allowed them so to believe) that all of their claims and rights and equities were to be reopened and reexamined de nooo; and that upon the faith of that belief they made a cession of the Outlet.

In the opinion of the court this case is simply one to recover purchase money upon a contract of sale. Ordinarily, in such a case, the cession would not be made, the deed would not be delivered until the purchase money is paid or secured or, at least, the amount be ascertained and liquidated. In this case both parties wanted to expedite the transaction. It was important for the United States that the cession of the territory should be made immediately; it was desirable for the Cherokee Nation that the purchase money should be paid soon. But, nevertheless, the Cherokee Nation had the right to immediate payment, and the agreement intended to secure to them the next thing to it — the right to an early payment. The accounting was merely a means to an end. The end was the immediate payment, as near as might be, of the whole consideration to be given for the cession of the Outlet. When the cession was made the purchase money was due; the only thing remaining, which was the object of the accounting, was to ascertain the exact amount. This is not the case of a party, prosecuting an un-liquidated debt, but a case of sale and delivery and nonpayment of the purchase money for the thing sold and delivered. The United States were willing to pay; the Cherokee Nation wanted the payment made at the earliest possible day; both parties agreed upon a method by which it should be paid as nearty immediately as was possible. The United States were to render their account “ without delay; ” if the Cherokee Nation accepted it, the amount was to be appropriated by Congress; such “ appropriation to be made by Congress, if then in session, and if not, then at the session immediately following such accounting.” If the Cherokee Nation. did not accept the accounting, or regarded it as incorrect or unjust, and carried it into the courts and recovered a judgment, Congress was to appropriate “ at its next session after such case shall be finally decided.” Nothing was left to the ordinary uncertainties and procrastinations of legislation, and no agreement could have made the obligation to pay promptly more unequivocal and specific. Time was of the essence of the contract, so far as the words of the parties could make it.

The court does not intend to imply that when the account of Slade and Bender came into the hands of the Secretary of the Interior he was bound to transmit it to the Cherokee Nation. On the contrary, the Cherokee Nation had not agreed to be bound by the report of the accountants and could not claim that the United States should be. The accountants were but the instrumentality of the United States in making out an account. When it was placed in the Ulterior Department it was as much within the discretion of the Secretary to accept and adopt it or to remand it for alterations and corrections as a thing could be. He was the representative of the United States under whom the agreement had been made, and he was the authority under which the account had been made out, and when he transmitted it to the Cherokee Nation his transmission was the transmission of the United States. When the account was thus received by the Cherokee Nation (May 21, 1894), the “ twelve' months ” of the agreement, within which the nation must consider it and enter suit against the other party in the Court of Claims, began to run, and with the nation’s acceptance of the account (December 1, 1894) the session of Congress at which an appropriation should be made became fixed and certain. The Secretary did not recall the account; the United States never rendered another, and the utmost authority which Congress could have exercised, if any, was, at the same session, or certainly within the prescribed twelve months,” to have directed the Secretar})' to withdraw the account and notify.the Cherokee Nation that another would be rendered. The action of the Secretary of the Interior, combined with the inaction of Congress to direct anything to the contrary, makes this prolusion of the agreement final and conclusive. The Cherokee Nation has parted with the land, has lost the time within which it might have appealed to the courts, and has lost the right to bring the items which it regards as incorrectly or unjustly disallowed to judicial arbitrament, and the United States are placed in the position of having broken and evaded the letter and spirit of their agreement.

When the agreement is analyzed it seems plain that if the court were to uphold the course which the United States have pursued it would have to adopt one of two alternatives: Either it would have to read into the agreement provisions which are not there and which are the converse of those which, are there (that it was the Cherokee Nation, and not the United States, which was to render the account; that it was the United States, and not the Cherokee Nation, which might object to the account; that.it Avas the United States, and not the Cherokee Nation, .to whom judicial redress A\ras given), or it Avould have to hold that the agreement promised nothing, assured nothing, gave no judicial means of redress, and left the Cherokee Nation in precisely the same plight that it would have been in if no agreement had been made, to wit, with a controversy of nearly seventy years still unsettled.

The question which next arises relates to the contending parties before the court — the Cherokee Nation, being the Cherokee government, the Eastern Cherokees, being the communal owners.

The contracting party here, being also the party who made the conveyance of the Cherokee Outlet, was the Cherokee Nation; and if the lands of the Cherokees Avere, like the lands of the United States, Government lands, or public lands in which the Government has the sole proprietary interest, and in which no individual has any personal interest whatever, there could not be a doubt of the exclusive right of the Cherokee Nation to have a judgment awarded in its name. But in 1835 the lands of the Cherokees east of the Mississippi, and in 1846 the lands of the Cherokees in the Indian Territory, were neither public nor private lands- in the ordinary sense of those terms. The term “ communal,” it is believed, is not to be found in treaties or statutes or public documents relating to the Indians prior to the date of the case of the Western Cherolcees (27 C. Cls. R., 1). But the officers of the Government, under stress of circumstances— that is to say, the expectations of the Indians — have always treated Indian lands as communal, though they did not use the term and had very dim perceptions as to the nature of the estate. Whenever the Government has paid for a cession of Indian land per capita to every member of an Indian community, share and share alike, it was because the Indians knew that their lands were communal property and that they, as communal owners, were entitled to the purchase money. The case of the Western Cherokees (supra) is so nearly identical to the present one as regards the parties claimant that the opinion in that case correctly sets forth the facts and the law of the present one:

“ The lands east of the Mississippi were not vested in the Cherokee government, as distinguished from the Cherokee people. Their chiefs in council, as representative of the body politic, might, perhaps, have sold or disposed- of them, but under their constitution and laws could not have brought an action of trespass or ejectment against one of their own citizens for dwelling upon or hunting over the lands. The title was not vested in the Cherokees as individuals. They were neither tenants in common nor j oint tenants. The individual Cherokee' had no vested right which he could convey or devise or make the subject of a suit in partition. If he withdrew from the community he left all rights behind him, and if a stranger was admitted he acquired a right by virtue of his admission alone. The property was communal — a property wherein every person, not as an individual, but as a member of the community, held an equal, indistinguishable, indivisible right of user, and nothing more.”' (Western Cherokees v. United States, 27 C. Cls. R., 1, 53.)

The present case is also complicated by the fact that a considerable portion of these communal owners are neither citi-. zens of the Cherokee Nation nor subject to its jurisdiction nor dwellers within its territory, but are and always have been residents of territory east of the Mississippi, owing-allegiance, now exclusively to the United States. It is also complicated by the fact that the account rendered by the United States to the Cherokee Nation is made up of four distinct and essentially different items: One, the chief one, is for money erroneously charged to the Cherokees instead of being divided per capita among them; another is for money which should have been added to the principal of the school fund, a fund which is held by the United States in trust; a third is for money improperly charged to the Cherokee national fund, likewise held in trust by the United States. Only one appears to be money properly due to the Cherokee Nation as a government, and that for the inconsiderable amount of $432.28. The case is further complicated by the fact that the government of the Cherokee Nation is passing away'; that it has already ceased to possess a judiciary, and that on the 4th of March, 1906, it will, to all intents and purposes, expire.

The action instituted in this court by the Cherokee Nation was properly an action at law to recover a liquidated amount of money upon an express contract. But the act 1st July, 1902 (32 Stat. L., p. 716, § 68), under which itpvas instituted, authorized the court to adjudicate any claim which the Cherokee Nation “ or any band thereof ” might have against the United States, with. “ full authority by proper orders and process to make parties to any such suit all persons tallóse presence in the litigation it may deem necessary or proper to the final determination of the matter in controversy.” The supplemental act 3d March, 1903 (32 Stat. L., p. 996), expressly authorized “the Eastern Cherokees, so called, including those in the Cherokee Nation and those who remained East of the Mississippi Biver,” to come in and prosecute their claims, with power to the court “ also to determine as between the different claimants to whom the judgment so rendered' equitably belongs.” The case then being that of many persons severally interested in a common fund, is one of which equity takes jurisdiction and the several suits merged by interpleader into one have become a suit in equity.

While the United States háve always, or nearly always, treated the members of an Indian tribe as communal owners, they have never required that all the communal owners shall join in the conveyance or cession of the land. From the necessities of the case the negotiations have been with representatives of the owners. The chiefs and headmen have ordinarily been the persons who carried on the negotiations and who signed the treaty. But they have not formed a body politic or a body corporate, and they have not assumed to hold the title or be entitled to the purchase money. They have simply acted as representatives of the owners, making the cession on their behalf, but allowing them to receive the consideration per capita. In the present case the Cherokee Nation takes the place, so far as communal ownership is involved, of the chiefs and headmen of tlie uncivilized tribes. This, too, is consonant with the usage of nations. The claims of individuals against a foreign power are always presented, not bjr them individually, but by their 'Government. The claims are pressed as international, but the money received is received in trust, to be paid over to the persons entitled to it.

As to those Cherokees who remained in Georgia and North Carolina, in Alabama and Tennessee, they owe no allegiance to the Cherokee Nation and the nation owes no political protection to them. But they, as communal owners of the lands east of the Mississippi, at the time of the treaty of 1835, were equally interested, with the communal owners who were carried to the West, in the $5,000,000 fund which was the consideration of the cession, so far as it was to be distributed per capita. The Cherokee Nation was not bound to prosecute their claims against the United States for the unpaid balance of the $5,000,000 fund, but their rights were inextricably interwoven with the rights and equities of Cherokees who were citizens of the nation, and the nation properly made no distinction when parting with the Outlet but demanded justice from the Cherokee point of view for all Cherokees who had been wronged by the nonfulfillment of the treaty of New Echota. As to these Eastern nonresident Cherokee aliens the nation acted simply as an attorney collecting a debt. In its hands the moneys would be an implied trust for the benefit of the equitable owners.

After a careful consideration of the circumstances and conditions of these cases, the court is of the opinion that the moneys awarded should be paid directly to the equitable owners. A great change has come within a few years, both as to the powers and the responsibilities of the Cherokee Nation. Its statute went to the full extent of the civil law in making the Government liable to all persons being citizens of the nation: “ The Cherokee Nation shall be liable to all persons whatever, citizens of the nation, having claims at law or equity against her to the same extent as individual persons are liable to each other and may be sued by any citizen having a cause of action.” (Code 1874, p. 240, § 130.) But its judiciary has ceased to exist, and, as before has been said, the nation itself as a government will soon cease to exist.

“ The constitution of the Cherokees was á wonderful adaptation to the circumstances and conditions of the time, and to a civilization that was yet to come. It was framed and adopted by a people, some of whom were still in the savage state and the better portion of whom had just entered upon that stage of civilization which is characterized by industrial pursuits, and it was framed during a period of extraordinary turmoil and civil discord, when the greater part of the Cherokee people had just been driven by military force from their mountains and valleys in Georgia, and been brought by enforced immigration into the country of the Western Cherokees; when a condition of anarchy and civil war reigned in the Territory — a condition which was to continue until the two branches of the nation should be united under the treaty of 1846 (27 C. Cls. R., 1) ; yet for more than half a century it has met the requirements of a race steadily advancing in prosperity and education and enlightenment so well that it has needed, so far as they are concerned, no material alteration or amendment, and deserves to be classed among the few great works of intelligent statesmanship which outlive their own time and continue through succeeding generations to assure the rights and guide the destinies of men. And it is not the least of the successes of the constitution of the Cherokees that the judiciary of. another nation are able, with entire confidence in the clearness and wisdom of its provisions, to administer it for the protection of Cherokee citizens and the maintenance of their personal and political rights.” (Journeycake v. Cherokee Nation, 28 C. Cls. R., 281, 317.)

Since those words were written a hopeless development has taken place in the affairs of this people. It has been with them as it has been with other nations — as it has been with families and individuals — to rise in the times of their tribulation, but to sink under the enervating blessings of prosperity.

“ On the 1st August, 1838, while the dispirited throng of Cherokee exiles paused in their march at a temporary halting place, the name of which does not appear on the map nor inthe list of post-offices, and which is known only from what transpired there'as ‘Aquohee camp,’ they were able to declare through the hand of their great statesman and leader, Boss, that—

“ Whereas the Cherokee people have existed as a distinct national community in the possession and exercise of the appropriate and essential attributes of sovereignty for a period extending into antiquity beyond the dates and record and memory of man; •
“And, whereas these attributes, with the rights and franchises which they involve, have never been relinquished by the Cherokee people, but are now in full force and virtue;
“And whereas the natural, political, and moral relations subsisting among the citizens of the Cherokee Nation toward each other and toward the body politic can not, in reason and justice, be dissolved by the expulsion of the nation from its own territory by the power of the United States Government :
“Resolved, therefore, by the national committee and council and people of the Cherokee Nation, in general council assembled, That the inherent sovereignty of the Cherokee Nation, together with the constitution, laws, and usages of the same, are, and by the authority aforesaid are hereby declared to be, in full force and virtue, and shall continue so to be in perpetuity, subject to such modifications as the general welfare may render expedient.” (Western Cherokees v. United States, 27 C. Cls. R., 1, 29.)

This declaration was an heroic resolve amid the most adverse circumstances to preserve forever the autonomy of the Cherokee people. It was not made in vain for the generation which so resolved. But the ease of affluence and the inevitable demoralization of wealth have accomplished where the military power of the United States and the corrupt methods of their agents failed; and within the passing of less than three generations the perpetuity of the constitution and laws and usages of the Cherokee people will have come to an end.

In this condition of affairs the court must regard the Cherokee Nation as in a condition somewhat analogous to that of a trustee or receiver who has become insolvent; that is to say, as a person who should not be intrusted with the receipt and distribution of the moneys belonging to other persons.

The persons to whom distribution of this fund of $1,111,-284.70, with accrued interest, would be made if they were now living would be the communal OAvners of the Cherokee lands east of the Mississippi. By the tripartite treaty of 1846 the Western and the Eastern Cherokees AArere placed on the same footing Avith regard to all lands east of the Mississippi and with regard to the funds derived from them. It folloAA’s necessarily that each and all of the present communal oAAmers, Avhether on the east or the Avest of the Mississippi, and whether the descendants of Eastern or Western Cherokees, haA'c the same individual interest in the fund and AA'ill be entitled to like amount per capita.

xV decree will be entered in this case following the form of that Ayhich was entered in the case of Whitmire, trustee, v.‘ Gherokee Nation (30 C. Cls. R., 180). It Avill provide:

That the Cherokee Nation recover upon the agreement Avith the United States concluded on the 19th December, 1891, and ratified by the United States 3d March, 1893 (27 Stat. L., p. 640, § 10), the amounts found due in the account rendered thereunder by the United States, to Avit:

The value of three tracts of land containing 1,700 acres, a-t $1.25 per acre_ $2,125. 00
Amount paid for removal of Eastern Cherokees to the Indian Territory_ 1,111,284.70
Amount received by receiver of public moneys at Independence, Kans-x_:- ' 432. 28
Interest on $15,000 of Choctaw funds, applied in 1803 to relief of indigent Cherokees_ 20, 400. 25

That the amount of $2,125, with interest thereon from February 27, 1819, to date of payment, nevertheless be retained by the Secretary of the Interior and credited by the United States to the principal of the Cherokee school fund in their possession and of Avhich they are trustees;

That the amount of $20,406.25, together Avith interest thereon from July 1, 1893, to date of the restoration of the fund, be likeAvise retained by the Secretary of the Interior and credited to the Cherokee national fund in the possession of the United States and of which they are trustees;

That the amount of $1,111,284.70, together with interest thereon from June 12, 1838, to a day when the Secretary of the Interior shall be ready to make payments, as hereinafter provided, nevertheless be paid directly to communal owners being Cherokees by blood, whether on the eastern or western side of the Mississippi River. And to that end the Secretary of the Interior is authorized to appoint one or more commissioners to proceed to the Cherokee country and to the country of the Cherokees residing east of the Mississippi to ascertain and report to the Secretary the facts necessary for the formation of rolls of all Cherokees by blood, the expenses of making out and preparing such rolls to be a charge upon and paid out of the fund awarded by the decree.

The decree will also provide for the payment of the fund to the parties per capita, the charge of distribution likewise to be a charge upon the fund.

The decree will also provide for the payment to the treasurer of the Cherokee Nation $432.28, together with interest thereon from January 1, 1874, to date of payment, as likewise set forth in said account.

The decree will also provide for the compensation of counsel and expenses and disbursements incident to the litigation.

Weldon, J.,

concurring:

Without going into the merits of this controversy on the different treaties made between-the parties to this proceed.! ing and the laws of the United States enacted from time to time affecting the liability and relation of the parties, I come to consider the legal effect of the finding made by the agents and officers of the United States under the agreement of December 19, 1891, described in the act of March 3. (27 Stat. L., p. 640, sec. 10.)

Commencing with the year 1835, in which year the treaty of New Echota was made with the Eastern Band of Cherokee Indians, disputes and differences existed between the United States and the Indians which culminated in the year 1891, when a treaty was made involving the sale and purchase of a district of country amounting in the aggregate to over 8,000,000 acres of land, known as the Cherokee Outlet. Aside from the intrinsic value of the lands there was a most material consideration moving to the United States in the necessity of having that tract of land; and, to the end that the United States might be the owner of that splendid domain of territory, they agreed to pay the Indians the sum of $8,300,000; and, as a further consideration and inducement to the Indians to enter into such an agreement, it was stijmlated on the part of the United States as follows, to wit:

“ The United States shall, without delay, render to the Cherokee Nation, through an agent appointed by authority of the national council, a complete account of moneys due the Cherokee Nation under any of the treaties ratified in the years 1817, 1819, 1825, 1828, 1833, 1835-36, 1846, 1866, and 1868 and any laws passed by the Congress of the United States for the purpose of carrying said treaties or any of them into effect; and upon such accounting should the Cherokee Nation, by its national council, conclude and determine that such an accounting is incorrect or unjust, then the Cherokee Nation shall have the right within twelve months to enter suit against the United States in the Court of Claims, with the right to appeal to the Supreme Court of the United States, % either party, for any declared or alleged amount of money promised but withheld by the United States from the Cherokee Nation, under any of said treaties or laws, which may be claimed' to be omitted from or improperly or unjustly or illegally adjusted in said accounting. And the Congress of the United States shall at its next session after such case shall be finally decided and certified to Congress, according to law, appropriate a sufficient sum of money to pay such judgment to the Cherokee Nation should judgment be rendered in her favor; or if it shall be found upon such accounting that any sum of money has been so withheld, the amount shall be duly appropriated by Congress, payable to the Cherokee Nation, upon the order of the national council, such appropriation to be made by Congress if then in session, and if not, then at the session immediately following such accounting.”

The subject-matter of the consideration upon the part of the Indians was composed of two elements; in the first they were to receive the sum of $8,300,000, a part of the consideration of the conveyance, and as the second element of consideration they were to receive “ a complete account of the moneys due the Cherokee Nation ” under all the treaties and laws which from 1817 to 1868 had been made or enacted affecting the pecuniary relations of the parties. The account was to be accepted or rejected by the Indians as they might determine. It was known to them that an alleged settlement bad been made in the year 1852, the legal effect of which had always been disputed by the Indians; and the agreement to render an account “ of moneys due ” “ to an unlettered party ” at least would be accepted as an opportunity to be relieved from the legal effect and binding force of the alleged settlement, by and through which they had been held at arm’s length through more than a generation of their people.

Then follows another provision well calculated to operate on the minds of the Cherokee Nation as a special and material inducement to.the making of the treaty or agreement of 1891. “And upon such accounting should the Cherokee Nation by its national council conclude and determine that such an accounting is incorrect or unjust, then the Cherokee Nation shall have the right within twelve months to enter suit against the United States in the Court of Claims,” with the right of appeal to the Supreme Court of the United States by either party for any declared or alleged amount of moneys.

The consideration therefore-consists of different elements of inducements, and in law those elements constitute and form the basis upon which the agreement rests, and none can be eliminated without the destruction of the entire force of the agreement.

The consideration though in parts and sections is a unit, and to disturb or eliminate one element is to destroy the whole. The consideration is the basis of the contract, and without its preservation as a whole the contract falls. .

The court must therefore assume that without all of the considerations the Cherokee Nation would, not have released to the United States a district of country large enough and rich enough to be one of the States of the Union.'

Much discussion has been indulged in upon the question as to whether the finding which was submitted to the Clierokeo Nation is an award, and if not an award, an account stated. It is not necessary to indulge in black-letter learning upon the legal effect or character of the “ account of moneys due the Cherokee Nation.” It was a statement of the account founded upon the legal theory of the Cherokee Nation, and for which the Indians had struggled through the years from 1835 to 1891. It to them was a slow and tardy relief from, the alleged iniquities and frauds of 1835, which, as they always thought, was the inception of their woes.

Upon the question as to whether the account rendered is in law an award or account stated, or whether it is either, is wholly immaterial to the proper settlement of the issue of this proceeding, and it is profitless to sagely balance the common-law question as to what constitutes either. It is sufficient for the 'purpose of this litigation to say that it is a material and lawful part of the consideration of a contract made by and between competent parties upon the subject-matter of which they had plenary jurisdiction.

In this connection it is apt .to quote what the Supreme Court has said in the case of Worcester v. State of Georgia. (6 Peters, 652) :

“ The language used in treaties should never be construed to their prejitdice. If words be made use of which are susceptible of a more extended meaning than the plain import as connected with the tenor of the treaty, they should be-construed as used in the latter sense.
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“ How the words of the treaty were understood by this unlettered people, rather than in their critical meaning, should form the rule of construction. The question may'' be asked, Is no distinction to be made between a civilized and savage people? Are our Indians to be placed upon a footing with the nations of Europe with whom we have made treaties ?
“ The inquiry is not, what station-shall be given to the Indian tribes in this country, but what relation have they sustained to us since the commencement of our Government? We have made treaties with them, and are those treaties to-be disregarded on our part because they were entered into with an uncivilized people? Does this lessen the obligation of such treaties? By entering into them, have we not admitted the power of this people to bind themselves and impose obligations on us ? ”

So, in 5 Wallace, 737:

“ Buies of interpretation favorable to the Indian tribes are to be adopted in construing our treaties with them. Plence a provision in an Indian treaty which exempts their lands from ‘ levy, sale, and forfeiture ’ is not, in the absence of an expression so to limit it, to be confined to a levy and sale under ordinary judicial proceedings only, but it is to be extended to levy and sale by county officers for nonpayment of taxes.”

Congress having failed to pay the amount found due under the treaty of 1891 by the report of Messrs. Slade and Bender, passed an act of 1902, by virtue of which this court has jurisdiction.

The matter of complying with the treaty of 1891 was left by the appropriation act (to defray the expense of furnishing a statement to the Indians) to the Commissioner of Indian Affairs under the direction of the Secretary of the Interior, as shown by the communication.

The Secretary in his communication to the Speaker of the House also transmits “ a certified copy of the Cherokee national council accepting such accounting.”

Up to that point the executive officers of the Government were proceeding step by step in the fulfillment of the promise made in the treaty of 1891, upon the faith of which the United States had acquired and were then in the-enjoyment of the “ Outlet.”

The United States had bought the land of the Indians not for the sum of $8,300,000, but for that sum and other undertakings vital as an inducement to the Indians in making the agreement of 1891.

Courts can not apportion the consideration of a contract and say this is material and that is immaterial; parties have the right to measure the value of what they contract for, and are entitled to have that recognized by the courts.

The Congress in ratification of the plan of settlement, as provided in the treaty of 1891, passed an act. appropriating the sum of $5,000 for the purpose of ascertaining the amount due the Cherokee Nation, and in pursuance of that act the Secretary of the Interior appointed James A. Slade and Joseph T. Bender to state the account then existing between the United States on one hand and the Cherokee Nation on the other, and in pursuance of such appointment and upon the fundamental authority of the agreement with the Indians made an examination, and upon the result of that examination made a report of the indebtedness of the United upon the removal of the Indians under the various treaties was to be at the cost of the United States. It is not pretended that any mistake was made by the accountants upon the legal theory which they adopted as the basis of the liability of the defendants.

report Secretary of the Interior transmitted to Congress, through the Speaker of the House, the report of the expert accountants in the following communication:

DEPARTMENT OE THE INTERIOR,
“Washington, January 7th, 1895.
Sir : I have the honor to herewith transmit, in compliance with the provisions of the third subdivision of article two of the agreement made December 19th, 1891, with the Cherokee Indians, ratified by the act of Congress approved March 3rd, 1893 (27 Stats., 643), a certified copy of a complete account of money due the Oherohee Nation under any of the treaties made in the years 1817, 1819, 1828, 1835-6, 1846, 1866, and 1868, and any laws passed by the Congress of the United States for the purpose of carrying said treaties or any of them into effect, prepared in accordance with the provisions of said act of March 3rd, 1893, together ivith a certified copy of the Cherokee national council accepting such accounting. “
Very respectfully,
“ Hoke Smith, Secretary.
“ The Speaker op the House op Representatives.”

The account when rendered to the Cherokee Nation proved acceptable to it and upon the faith of its acquiescence in the report, as shown by the letter of the Secretary of the Interior, the council of the nation passed a formal acceptance of it.

If the United States were dissatisfied with the report of Slade and Bender, the dissatisfaction should have been manifested as soon as it was known to the authorities of the United States, who had in charge the matter, and not after the .Cherokee council had formally accepted the report as a correct statement of the account between the parties, and a formal delivery to the Cherokee Nation of a part of the consideration on which the bargain and sale of the land were made.

The appointment of the expert from them of the result of the examination, and the transmittal of the report to the Cherokee Nation was the official act of the Secretary of the Interior, the officer who above all others has jurisdiction of the Indians of the United States. It is that Department of the Government which deals with the finances, and all other interests belonging to the Indians of the United States. The Secretary of the Interior and. the instrumentality of his Department is the medium through which the United States deals with “ the wards of the nation.”

The report which was to be furnished to the Indians for their acceptance or rejection has incident to it another important qualification, and that is if the Indians were dissatisfied with the statement of moneys due then they had the right to bring a suit against the United States within twelve months to settle by judicial determination the respective right of the parties. Relying on the good faith of the Government, the council of the Cherokee Indians accepted the. statement of Slade and Bender and thereby waived the right to bring a suit against the United States;'and, that right being waived, founded on the action of the United States, are they not now estopped from denying the legal effect of their own act ? The Indians were misled by the act of the United States when they assumed that the account after acceptance would be dealt with in pursuance of the other requirements of the treaty. Consider the rights of the litigants in thó light of the law which has been announced for nearly a century b}^ the Supreme Court of the United States,' the fundamental theory of which is that language must never be construed to their prejudice. (Worcester v. State of Georgia, supra.)

The position of the defendants in refusing to abide by the result of the treaty of 1893, consummated as it was by the act of the Cherokee council, the executive officers, and the lawful authorized agents of the United States, is not keeping faith with the wards of the nation in the spirit of that“ justice and reason ” recognized by the courts when dealing with the obligation of the United States as the guardian of the Indian.

In the case of tlie Choctaw v. The United States (119 U. S. R., p. 1) it is said in the syllabi:

“ The relation between the United States and the Indian tribes, being those of a superior toward an inferior who is under its care and control, its acts touching them and its promises to them, in the execution of its own policy and in the furtherance of its own interests, are to be interpreted as justice and reason demand in cases where power is exerted by the strong over those to whom they owe care and protection. (United States v. Kagama, 118 U. S., 375, cited and applied.) ”

I concur in the result reached by the court as exemplified in the .opinion of the Chief Justice.

Peelle, J.,

concurring:

I concur in the conclusion of the court that there should be .a recovery against the United States for the several amounts found due by the experts, Slade and Bender, but in my view of the case that conclusion should be sustained upon the theory, or assumption, as the experts say, “ that' the United States was to pay the expense of removal ” of the Eastern Cherokees from their eastern home to the Indian Territory.

If the United States are so liable, then the defendants concede that the account as stated by Slade and Bender is correct.

The first and main question to be determined, therefore, is as to the liability of the United States, and it is conceded that if such liability exists it arose under the treaties of 1835-36 and 1846 (7 Stat. L., and 478, and 9 Stat. L., 871).

To interpret correctly the treaty of 1835-36 within the spirit of the decisions of the Supreme Court, it is essential to know how the Cherokee people understood the terms of the treaty and whether they had probable grounds for such understanding.

Practically from the beginning of the Government — to make room for white settlers — it was the policy of the United States to encourage the removal of the Indians domiciled in the Eastern States to the territory west of the Mississippi River. This policy is now manifest from the various treaties entered into by the United States with the several tribes (now a part of the history of the country) by which the Indians ceded their lands situate in the Eastern States to the Government and migrated to territory provided for them west of the. Mississippi River.

By the treaty of 1817 with the Cherokee Indians (7 Stat. L., 156), in furtherance of promises previously made by the President that those Indians who desired to continue the life of hunting instead of settling down to agriculture and civilized life, should have homes in the West on the waters of the Arkansas and White rivers (to which some of the Indians had migrated), it was provided in article 6, in addition to the compensation therein provided for the improvements left by them, that to aid in their removal the United States agreed “ to furnish flat-bottomed boats and provisions sufficient for that purpose. * * * The boats and provisions promised to the emigrants are to be furnished by the agent on the Tennessee River, at such time and place as the emigrants may notify him of; and it shall be his duty to furnish the same.”

By the treaty of 1828 with the Western Cherokees (7 Stat. L., 311) who had migrated to Arkansas Territory under the promise of the President and the treaties of 1817 and 1819, whereby the lands of the Western Cherokees in that Territory were exchanged for lands in the Indian Territory, the United States by article 8, to encourage the Cherokees residing East to join their brothers in the West, agreed in addition to giving them certain specified articles, to pay the cost of their emigration and to furnish them with provisions for their support on the way and provisions for twelve months after their arrival at the agency, and in addition thereto to give each person who took along with him four persons as emigrants and permanent settlers the sum of $150.

Thus, in addition to paying the expenses of removal and subsistence as there stated, the United States agreed, by way of encouraging them to induce others to migrate, to pay a bonus to each individual taking four such persons with him.

The treaty of 1833 (7 Stat. L., 414), as provided by article 5 thereof, was supplementary to the treaty of 1828 and was “ not to vary the rights of -the parties to said treaty any further than said treaty is inconsistent with the provisions of this treaty, now concluded, or these articles of convention and agreement.”

It was not only the policy of the United States, as before stated, to encourage the removal of the Indians westward, but it ivas their policy to pay the expenses of their removal and their subsistence, as shown by the treaties with the Choctaws in 1820 (I Stats. L., 210) ; with the Creeks in 1826 (I Stats. L., 286) ; with the Chickasaws in 1832 .(7 Stats. L., 381) ; with the Seminóles in 1832 (7 Stats. L., 368), and with the Delawares and the Delawares and Shawnees in 1829 and. 1832 (7 Stats. L., 327 and 397). Can it be doubted that what was thus done was well known to the Cherokee Indians at the time of the treaty of 1835 ? Indeed, when a draft of the latter treaty was first submitted to them in general council at Red Clay, October 23, 1835, there was read and interpreted to them a letter from President Jackson in which, among other things, he said “ for the removal, at the expense of the United States, of your whole people; for their subsistence for a year after their arrival in their new country, and for a gratuity of $150 to each person.” (H. R. Docs., vol. 7, No. 286, p, 41, 24th Cong., 1st sess.)

And so the eighth article of the treaty of 1835 provided:

“ The United States also agree and stipulate to remove the Cherokees to their new homes and to subsist them one year after their arrival there and that a sufficient number of steamboats and baggage wagons shall be furnished to remove them comfortably, and so as not to endanger their health, and that a physician well supplied with medicines shall accompany each detachment of emigrants removed by the Government. Such persons and families as in the opinion of the emigrating agent are capable of subsisting and removing themselves shall be permitted to do so; and they shall be allowed in full for all claims for the same twenty dollars for each member of their family; and in lieu of their one year’s rations they shall be paid the sum of thirty-three dollars and thirty-three cents if they prefer it.
“ Such Cherokees also as reside at present out of the nation and shall remove with them in two years west of the Mississippi shall be entitled to allowance for removal and subsistence as above provided.”

Up to this point, therefore, I take it there can be no well-grounded. controversy either as to what the Government had doneo respecting the cost of removal and subsistence of the various tribes of Indians theretofore removed to the Indian Territory, or as to what the purpose of the Government was by article 8 of the treat}*" of 1835 respecting the like expense of removing the Cherokees to the same Territory, i The language of the article will not bear the construction that the Government was advancing money to defray such expense or that the allowance therein provided to those capable of removing themselves was intended as a charge against the treat}* fund.

But for article 15 of the treaty it must be conceded that the Government had obligated itself to defray the cost of removal and subsistence, and this was' not only in conformity with what the Government had theretofore done respecting the removal of other Indian tribes, but was in conformity with the promise of the President made to the Indians in general council when a draft of the treaty was first submitted to them at Bed Clay some two months before, in substantially the same form in which it was finally signed at New Echota in the State of Georgia.

Now, keeping in mind what has been said respecting the understanding of the Cherokee people as to who was to pay the cost of their removal and subsistence, turn to article 15, which provides:

“Article 15. It is expressly understood and agreed between the parties to this treaty that after deducting the amount which shall be actually expended for.the payment for improvements, ferries, claims for spoliations, removal, subsistence, and debts, and claims upon the Cherokee Nation, and for the additional quantity of lands and goods for the poorer class of Cherokees and the several sums to be invested for the general national funds provided for in the several articles of this treaty, the balance, whatever the same may be, shall be equally divided between all the people belonging to the Cherokee Nation east, according to the census just completed; and such Cherokees as have removed west since June, 1833, who are entitled by the terms of their enrollment and removal to all the benefits resulting from the final treaty between the United States and the Cherokees east, they shall also be paid for their improvements,- according to their approved value, before their removal, where fraud has not already been shown in their valuation.”

Between the provisions of that article and those of article 8, respecting the cost of removal, there is a conflict, and if the ordinary rules of construction applicable to contracts between individuals are enforced, then it must be conceded that the cost of removal was properly charged to the treaty fund. However, after this treaty had been signed, but before its ratification, a controversy arose as to whether the provisions of the treaty obligated the United States to pay the cost of removal, the Cherokee people insisting that the United States were so bound; and hence supplementary articles were entered into, which, so far as material to this case, are as follows :

“Aetiole 2. Whereas the Cherokee people have supposed that the sum of five millions of dollars, fixed by the Senate in their resolution of — day of March, 1835, as the value of the Cherokee lands and possessions east of the Mississippi Elver, was not intended to include the amount which may be required to remove them, nor the value of certain claims which many of their people had against citizens of the United States, which suggestion has.been confirmed by the opinion expressed to the War Department by some of the Senators who voted upon the question, and whereas the President is willing that this subject should be referred to the Senate for their consideration, and if it was not intended by the Senate that the above-mentioned sum of five millions of dollars should include the objects herein specified, that in that case such further provision should be made therefor-as might appear to the Senate to be just.
“Article 3. It is therefore agreed that the sum of six hundred thousand dollars shall be, and the same is hereby, allowed to the Cherokee people, to include the expense of their removal, and all claims of every nature and description against the Government of the United States not herein otherwise expressly provided for, and to be in lieu of the said reservations and preemptions and of the sum of three hundred thousand dollars for spoliations described in the first article of the above-mentioned treaty. This sum of six hundred thousand dollars shall be applied and distributed agreeably to the provisions of the said treaty, and any surplus which may remain after removal and payment of the claims so ascertained shall be turned over and belong to the education fund.
“ But it is expressly understood that the subject of this article is merely referred hereby, to the consideration of the Senate, and if they shall approve the same then this supplement shall remain part of the treaty.”

The Senate-agreed to the supplementary articles and the treaty as thus supplemented was ratified and subsequently promulgated. Thus the supposition of the Cherokee people that the United States were to bear the cost of removal was conceded by the Senate (which had fixed the value of their lands and possessions at $5,000,000) to be well founded, for upon the basis of the cost of removal, as stated in article 8, the sum agreed upon was thought to be sufficient, and if'it had been the controversy in that regard would have ended there. The allowance of $000,000 was not in the nature of a gratuity, but was in furtherance of a right which the Senate conceded.

The grounds for allowing the sum of'$600,000, as recited in the second supplementary article, were that the Cherokee people supposed that the sum of $5,000,000 so fixed by the Senate as the value of their lands and possessions “ was not intended to include the amount which may be required to remove them,” and in the third supplementary article it was “ therefore agreed that the sum of six hundred thousand dollars shall be, and the same is hereby, allowed to the Cherokee people to include the expense of their removal ” and certain other claims there stated. And it was therein expressly understood that if said article should be approved by the Senate, “ then this supplement shall remain part of the treaty.”

Inasmuch, therefore, as the basis of that allowance was the belief of the Cherokee people that the $5,000,000 fixed by the Senate as the value of their lands and possessions “ was not intended to include the amount which may be required to remove them, etc.,” I am of the opinion that the supplementary articles necessarily operated to modify article 15 by eliminating therefrom the word “ removal,” thereby harmonizing that article with article 8. Certain it is that when the Senate ratified the supplementary articles allowing the sum of $600,000 which had been estimated as the amount necessary for the purpose stated, the practical effect was to eliminate from article 15 the word “ removal,” and such, I believe, was the intention of the parties from the language which they employed.

In the case of Cherokee Nation v. Georgia (5 Pet, 1, 15) the court, by Chief Justice Marshall, some four years before the treaty of 1835, in speaking of the controversy between the Cherokee Nation and the State of Georgia, said:

“ If courts were permitted to indulge their sympathies, a case better -calculated to excite them can scarcely be imagined. A people once numerous, powerful, and truly independent, found by our ancestors in the quiet and uncontrolled possession of an ample domain, gradually sinking beneath our superior policy, our arts, and our arms, have yielded their lands by successive treaties, each of which contains a solemn guaranty of the residue, until they retain no more of their formerly extensive territory than is deemed necessary to their comfortable subsistence. To preserve this remnant the present application is made.”

And further along in the same opinion, in referring to. the tribes which reside within the acknowledged boundaries of the United States, it is said:

“ They may more correctly, -perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.
“ They look to our Government for protection, rely upon its kindness and its power, appeal to it for relief to their Avants, and address the President as their great father.”

In the later case of Worcester v. Georgia (6 Pet., 515, 582), Mr. Justice Washington, in a concurring opinion, said:

"The language used in treaties with the Indians should never be construed to their prejudice. If words be made use of which are susceptible of a more extended meaning than their plain import, as connected with the tenor of the treaty, they should be considered as used only in the latter sense."

And such lias been the holding of our courts in dealing with the Indian tribes ever since. And especially should this rule prevail where the Indians sign a treaty by mark, as they did the treaty of 1835, and when' the terms of the treaty were made known to them only by the oral translation of an interpreter.

. Notwithstanding the Indians were required by the provisions of article 16 of that treaty to remove within two years, only a small minority migrated prior to 1837-38. But the expense of the removal and subsistence of that minority, together with the other expenditures chargeable thereto, nearly exhausted the $600,000 allowed by the third supplementary article, so that it became necessary to make a further appropriation to defray the expenses of removal and subsistence of those thereafter migrating. The expense of such removal and subsistence was estimated by the Secretary of War, and thereafter the Congress, by the act of June 12, 1838, appropriated the sum so estimated as“ in full of all objects in third article of supplementary articles of treaty of 1835 with the Cherokees; ” and in the same paragraph it was recited that “ No part of said money shall be deducted from the five million dollars stipulated to be paid to said tribe by said treaty.” If not to be so deducted, then it certainly follows that the United States were to pay the cost of such removal and subsistence ; not a part of it, but the whole of it.

Notwithstanding the provision thus made the Indians were, still opposed to removal, but when confronted with the military forces under General Scott, they fijially yielded and an arrangement was entered into whereby they were nearly all removed to the Indian Territory by the fall of 1838. The cost of this removal and subsistence largely exceeded $1,000,-000, and of the sum paid by the United States $1,111,284.70 was charged to the treaty fund; hence the cause of complaint.

Soon after their removal trouble arose between them and the Western Cherokees, as well as those Cherokees who had been signatory parties to the treaty of 1835 and had migrated thither prior to 1838. The Eastern Cherokees were by far the most numerous, and though they repudiated the treaty .of 1835 and charged that those who had entered into it bad done so through corrupt motives, still they sought governmental control of the nation, which was resisted by the Western Cherokees, claiming that as the Eastern Cherokees had come into their territory without their consent and without payment for any portion of the lands, they should be subject to the rule of the Western Cherokees. But the Eastern Cherokees refused to be controlled by the minority. The result was that trouble arose and serious consequences were anticipated, if something was not speedily done to allay the ill feeling.

In 1838, in national convention assembled, the people comprising the Eastern and Western Cherokee nations were, by mutual agreement, united into one body politic under the style and title of the Cherokee Nation, and in that name it was agreed that all rights and titles to Cherokee public lands east or west of the Mississippi Ni ver, -together with all of their interests which may have vested in either branch of the Cherokee family, whether inherited or derived from any other source, should vest unimpaired in the Cherokee Nation.

Soon thereafter the reunited Cherokees adopted a constitution, declaring that the two branches had become reunited and that “ the lands of the Cherokee Nation should remain common property.”

• Such declared union, however, did not have the effect of allaying the difficulties between the two factions. Extreme measures were being resorted to by both factions to accomplish their ill-conceived purposes, and at the same time the Eastern Cherokees were claiming that the expense of their removal and subsistence should be borne by the United States.

These differences, bordering on bloodshed as between the two factions, and the increasing hostility of the Eastern Cherokees toward the United States for charging them with the cost of. removal and subsistence, led to the treaty of 1846 (9 Stat. L., 871). The preamble to that treaty recites that the purpose of the treaty was to effect a final and amicable, settlement of the claims in controversy between themselves and between them and the United States; and to that end it was in substance agreed that the lands occupied by the Cherokee Nation should be secured to the whole people and that the United States should issue to them a patent for said lands; a general amnesty was declared in respect to all difficulties and disputes; that the Cherokees should be reimbursed for all claims made against them by the Uixited States and deducted from the $5,000,000 treaty fund; that the Western Cherokees should be reimbursed for the lands ceded by them by the treaty of 1828, out of the residuum of the. sums arising out of the treaty of 1835. That is to say, from the $5,600,000 granted by the treaty of 1835 there should be deducted the investments and expenditures stipulated in article 15 of said treaty, and out of the residuum there should be paid to the Western Cherokees a sum equal to one-third, to be distributed to them per capita, and that in arriving at that residuum there should be charged for removal only $20 per capita and for subsistence $33.33 per capita, as provided by article 8 of the treaty of 1835. By article 9 the United States agreed to make a “ fair and just settlement of all moneys due the Cherokees and subject to the per capita division under the treaty of 29th December, 1835, which said settlement shall exhibit all money properly expended under said treaty, and shall embrace all sums paid for improvements, ferries, spoliations, removal, and subsistence, and commutation therefor.” By article 11, in respect to the cost of removal and subsistence of the Eastern Cherokees under the treaty of 1835, it was agreed that the questions should be submitted to the Senate, by whose decision they agreed to abide.

In respect to the cost of subsistence the Senate decided that the United States should bear the expense, and there was accordingly restored to the treaty fund the sum of $189,422.76, but the provision requiring the Uixited States to pay the cost of removal xvas rejected by the Senate. The treaty as thus modified and ratified xvas acquiesced in by the Indians. But the delay of the Government in causing a fair and just settlement to be made of all moneys due the Indians under the treaty of 1835, which by the treaty of 1846 the Government had agreed to make, caused dissatisfaction among the Indians, and they petitioned Congress to carry out the provisions of the treaty.

The account was finally stated by the Commissioner of Indian Affairs and on the basis of that report the Congress passed a joint resolution (9 Stat. L., 339) authorizing the accounting officers of the Treasury to make a just and fair settlement of the claims of the Cherokee, according to the principles of the treaty of 1846, and to make their report thereof at the next session of Congress, which was done, but no action was taken by Congress thereon. Later, however, by the act of February 27, 1851 (9 Stat. L., 573), Congress appropriated the sum of $724,603.37, with interest thereon af-ilie rate of 5 per cent per annum from June 12, 1838, until April 1, 1851. In the paragraph making the appropriation there was added this proviso:

“Provided, however, That the sum now appropriated shall be in full satisfaction and a*final settlement of all claims and demands whatsoever of the Cherokee Nation against the United States, under any treaty heretofore made with the Cherokees. And the said Cherokee Nation shall, on the payment of said sum of money, execute and deliver to the United States a full and final discharge for all claims and demands whatsoever on the United States, except for such annuities in money or specific articles of property as the United States may be bound by any treaty to pay to said Cherokee Nation; and except, also, such moneys and lands, if any, as the United States may hold in trust for said Cherokees: And frovided, further, That the money appropriated in this item shall be paid in strict conformity with the treaty with said Indians of sixth August, eighteen hundred and forty-six.”

In 1852, in conformity with the provision authorizing settlement to be made, the sum so appropriated, together with the further sum of $189,422.76 theretofore allowed for subsistence, making in all $912,026.13, was — though the Cherokee Nation entered its protest to the settlement on the basis proposed — paid to the Cherokees, for which a receipt was executed in full as provided in the act. Thus the long and persistent controversy between the Cherokee Nation and the United States was, notwithstanding said protest, supposed to be adjusted and settled as provided by the act.

If the matter had rested there the controversy between them would have been at an end, notwithstanding the protest of the Clierokee Nation. But on December 19, 1891, an agreement was entered into between the Government and the Cherokee Nation, by article 1 of which the Cherokee Nation agreed to cede to the United States 8,114,682.91 acres known as the Cherokee Outlet; and by article 2 it was agreed on behalf of the United States that for and in consideration of said cession the United States would (1) remove from the limits of the Cherokee Nation certain trespassers; (2) a certain article of the treaty of 1866 should be held for naught; (3) the judicial tribunals of the Cherokee Nation should have exclusive jurisdiction in certain cases; (4) The United States shall, without delay, render to the Cherokee Nation, through any agent appointed by authority of the national council, a complete-account of moneys due the Cherokee Nation under any of the treaties ratified in the years 1817, 1819,1825,1828, 1833, 1835-36, 1846, 1866, and 1868, and any laws passed by the Congress of the United States for the purpose of carrying such treaties, or any of them, into effect; and upon such accounting should the Cherokee Nation, by its national council, conclude and determine that such accounting is incorrect or unjust, then the Cherokee Nation shall have the right within twelve months to enter suit against the United States, in the Coxirt of Claims, with the right of appeal to the Supreme Court of the United States by either party, for any alleged or declared amounts of money promised but withheld by the United States from the Cherokee Nation, under any of said treaties or laws which may be claimed to be omitted from, or unfairly or unjustly or illegally adjusted in said accounting; and the Congress of the United States shall, at its next session, after such case shall be finally decided and certified to Congress according to law, appropriate a sufficient sum of money to pay such judgment to the Cherokee Nation, should judgment be rendered in her favor, or if it shall be found upon such accounting that any sum of money has been so withheld, the amount shall be duly appropriated bjr Congress, payable to the Cherokee Nation, upon the order of its national council; said appropriation to be made by Congress, if then in session, and if not, then at the next session immediately following such accounting;” (5) that certain citizens of the Cherokee Nation should have the right to select lands as homesteads under certain conditions, and (6) that the United States should pay for said lands the sum of $8,300,000.

The other provisions of the treaty are not material to this case, but in transmitting the treaty the commissioners on the part of the United States reported to the President by way of explanation — doubtless to induce the ratification of the agreement — that in the relinquishment of the title to the land it was made a condition precedent that the United States should render to the Cherokee Nation a complete account of .moneys due to the Nation under treaties as stated in the fourth subdivision of article 2 above quoted, and this, they say, “ because the Cherokees are compelled to accept the construction of the treaties made by the executive and administrative branches of the Government,” and that “ whatever that construction is, the Indians must abide by it,” there being “ no appeal except to Congress.”. The commissioners also reported that the Indians “ claimed that upon a just accounting, upon a proper construction of the treaties named, a large sum of money, principal and interest, will be found due them; ” and that as the Government had kept the books and construed the treaties, no harm could come from restating the account, for if not theretofore correctly stated “ no possible reason can exist why the error should not be corrected.” (Senate Ex. Doc. 56, 52d Cong., 1st sess., pp. 11 and 12.)

The agreement so entered into was approved, by the Cherokee national council January 4, 1892, and ratified by the Congress by the act of March 3,1893 (27 Stat. L., 640). By the same act the sum of $5,000 was appropriated “ to enable the Commissioner of Indian Affairs, under the direction of the Secretary of the Interior, to employ such expert person or persons to properly render a conxplete account to the Cherokee Nation of moneys due said nation, as required in the fourth subdivision of article 2 of said agreement,” set out above.

Therefore, as part consideration and inducement for the sale of the land, the United States agreed that they would without delay render “ a complete account of moneys due the Cherokee Nation; ” and, in furtherance, of the agreement and the appropriation therefor, such experts were appointed and an account was rendered, which was accepted by the Cherokee Nation, and its right to sue in this court was thereby waived.

The Cherolcees insisted upon the payment of the amount found due, but a question arose as to whether the experts had not exceeded their authority in so construing the treaties as to render the United States liable for the cost of the removal and then stating the account accordingly. It was contended then, and is now, that no question of law 'was submitted to them for decision; that they were merely to state the account as it existed, and this, it seems to me, is the correct view. The experts, however, in the account respecting the cost of removal, say:

“ The cost of removal and subsistence prove to be very much larger than was expected and provided for by the appropriation. The excess cost of subsistence over the amount appropriated has been refunded to the Cherokee Nation; but upon the assumption that the United States was (were) to pay the expense of removal there is due the Cherokee fund the sum of $1,111,284.70.”

That amount, it will be noted, is stated as due upon the assumption of the liability of the United States to pay the cost of removal. That liability the Congress desired determined, and for that purpose, in the act of July 1,1902 (32 Stat. L., 717), making provision for the allotment of land to the Cherokee Nation and for other purposes, section 68 was incorporated in these words:

“ Seo. 68. Jurisdiction is hereby conferred upon the Court of Claims to examine, consider, and adjudicate, with a right of appeal to the Supreme Court of the United States by any party in interest feeling aggrieved at the decision of the Court of Claims, any claim which the Cherokee tribe, or any band thereof, arising under treaty stipulations, may have against the United States, upon which suit shall be instituted within two years after the approval of this act; and also to examine, consider, and adjudicate any claim which the United States may have against said tribe, or any band thereof. The institution, prosecution, or defense, as the case may be, on the part of the tribe or any band, of any such suit, shall be through attorneys employed and to be compensated in the manner prescribed in sections twenty-one hundred and three and twenty-one hundred and six, both inclusive, of the Eevisecl Statutes of the United States, the tribe acting through its principal chief in the employment of such attorneys, and the band acting through a committee recognized by the Secretary of the Interior. The Court of Claims shall have full authority, by proper orders and process, to make parties to any such suit all persons whose presence in the litigation it may deem necessary or proper to the final determination of the matter in controversy, and any such suit shall, on motion of either party, be advanced on the docket of either of said courts and be determined at the earliest practicable time.”

Under that act the Cherokee Nation filed the petition herein, claiming the several amounts stated in the account so rendered under the direction of the Secretary of the Interior as an award, and asked interest thereon at 5 per cent per annum from June 12, 1838. But doubts were enter-, tained as to whether under that act the Eastern Cherokees could be made parties to the action, and so by the act of March 3, 1903 (32 Stat. L., 996), making appropriation for the Indian Department, section 68 was amended as follows:

“ Section sixty-eight of the act of Congress entitled ‘An act to provide .for the allotment of lands of the Cherokee Nation, for the disposition of town sites therein, and for other purposes,’ approved July first, nineteen hundred and two, shall be so construed as to give the Eastern Cherokees, so called, including those in the Cherokee Nation and those who remained east of the Mississippi Eiver, acting together or as two ‘bodies, as they may be advised, the status of a band or bands, as the case may be, for all the purposes of said section: Provided, That the prosecution of such suit on the part of the Eastern Cherokees shall be through attorneys employed by their proper authorities, their compensation for expenses and services rendered in relation to such claim to be fixed by the Court of Claims upon the termination of such suit; and said section shall be further so construed as to require that both the Cherokee Nation and said Eastern Cherokees, so called, shall be made parties to any suit which may be instituted against the United States under said section upon the claim mentioned in House of Eepresentatives Executive Document Numbered Three liun-clred and nine of the second session of the Fifty-seventh Congress; and if said claim shall be sustained in whole or in part the Court, of Claims, subject to the right of appeal named in said section, shall be authorized to render a judgment in favor of the rightful claimant, and also to determine as between the different claimants, to whom the judgment so rendered equitably belongs, either wholly or in part, and shall be required to determine whether, for the purpose of participating in said claim, the Cherokee Indians who remained east of the Mississippi River constitutes a part of the Cherokee Nation, or of the Eastern Cherokees, so called, as the case may be.”

Under the amended section the Eastern Cherokees appeared by counsel and filed their petition, claiming that they were entitled to the amount stated in the account so rendered under the direction of the Secretary of the Interior, for the cost of their removal to the Indian Territory, with interest thereon at 5 per centum from June 12, 1838. Still another class, known as Eastern and Emigrant Cherokees, appeared by counsel and filed their petition, in which they claimed one-fourth of the amount stated as the cost of removal of the Eastern Cherokees to the Indian Territory. Therefore, the Cherokee Nation, as well as the Eastern and all other Cherokees claiming any interest in the subject-matter of the litigation, appear to be in court as required by the jurisdictional act.

The claim thus referred to as “ mentioned in H. it. Executive Document No. 309 of the second session of the Fifty-seventh Congress,” is, as stated in the resolution of the House of Representatives, December 16, 1902, as follows: “ The award rendered under the Cherokee agreement of December 19, 1891, ratified by act of Congress approved March 3, 1893,” and more particularly set forth in H. R. Executive Document No. 182, Fifty-third Congress, third session, pages 1, 32, and the findings of fact of the Court of Claims of April 28, 1892, which latter are substantially the findings of fact in the present case.

The foregoing findings of fact were made and reported to Congress in response to the resolution of the United States Senate referring to the Court Senate bill No. 3681, providing for- the payment of the award of the Secretary of the Interior in favor of the Cherokees under the provisions of the act of Congress of March 3,1893. But in the latter part of the ninth finding, referring to the report of the experts Slade and Bender as to the amount charged to the treaty fund, the court said: “ But whether said sum of one million one hundred and eleven thousand two hundred and eighty-four dollars and seventy cents ($1,111,284.70) was or was not improperly charged to the treaty fund, and whether interest should be allowed thereon are questions of law upon which the court expresses no opinion.”

Notwithstanding the report of the experts and the findings of the court were before the Congress, they did not see fit to make the appropriation to pay the amount found due, but instead referred the claim to the court for adjudication.

What, then, was referred to the court for adjudication? It is conceded in the court’s opinion that the amount found due has none of the elements of an award nor of an account stated, but that as the rendition of the account was made a part of the consideration for the sale of the Cherokee Outlet it is binding on the United States, and therefore the court can not go behind the account so rendered. That Congress did not take that view of the account is evident from their passage of the two acts conferring upon the court jurisdiction “ to examine, consider, and adjudicate * * * any claim which the Cherokee tribe, or any band thereof, arising under treaty stipulations, may have against the United States.” The agreement of 1891, ratified by the Congress, respecting the rendition o'f an account, is that “ The United States shall, without delay, render to the Cherokee Na-, tion * * * a complete account of moneys due the Cherokee Nation under any of the treaties ” therein referred to, and if the Cherokee council should “ determine that such accounting is incorrect or unjust,” the Cherokee' Nation should then have the-right, within twelve months, to enter suit in the Court of Claims against the United States. This it did not do, but instead accepted the account and thereby waived its right to sue. But were the United States bound to accept the account, based as it was upon the assumption of their liability under the several treaties? I think not, for the reason that the questions of law involved were not submitted to the experts for their decision by the appropriation authorizing their appointment, nor will'the language of the agreement made the basis thereof bear such construction. The accounting contemplated by the agreement and for which the experts were appointed was a statement of the account as it actually existed between the United States and the Cherokee Nation; that is to say, to properly state the several claims of the Cherokee Nation and the payments made thereon by the United States. This they did not do, but upon the assumption of the liability of the United States to pay the cost of removal, stated a different account and the result was the balance of $1,111,284.70 in favor of the Cherokee Nation, so that in my view of "the case that question was left open by the experts for the court to deal with, but inasmuch as the Cherokee Nation accepted the account, though rendered upon the assumption of the liability of the United States, instead of bringing suit in the Court of Claims to have that question determined, it was left for the Congress to deal with, and hence the reference of the claim to-this court. The jurisdiction of the court to determine that question is not controverted.

In my view of the case, as before stated, the supplementary articles to the treaty of 1835 operated to modify article 15 thereof by eliminating therefrom the word “ removal ” and with that word eliminated the United States were liable under the treaty of 1835 for the expense of removing the Eastern Cherokees to the Indian Territory; and such was evidently the view of Congress by the act of June 12, 1838, making appropriation to pay the sum estimated by the Secretary of War as necessary to defray the expenses of removal and subsistence hereinbefore referred to, in which, in the same paragraph, it is recited that “ No part of said money shall be deducted from the five million dollars stipulated to be paid to said tribe by said treaty ” (1835). That language seems to justify the views I have expressed and may well be considered in its effect as a legislative construction of the treaty of 1835. In addition thereto Congress made appropriations to pay the entire cost of subsisting the Cherokees for one year after their removal to the Indian Territory, notwithstanding the cost thereof, as stated in article 15 of the treaty of 1835, was to be deducted from the' treaty fund the same as the cost of removal.

I therefore reach the conclusion that the assumption of the experts, that the United States were liable for the cost of removal, was well founded, and that the amount found due by them upon that theory is correct, as conceded by the defendants.

The next question is, To whom should the money be paid ? It is conceded that the Cherokee Nation is entitled to recover under the treaty of 1819 and the treaty of 1866, and also certain interest under the act of Congress of March 3, 1893, the several sums set forth in the report of the experts, the disposition of each of which is correctly dealt with in the opinion of the court.

In respect to the sum of $1,111,284.70 for the expense of moving the Eastern Cherokees to the Indian Territory, that sum, if ;t had not been charged to the treaty fund, would, under the provisions of article 15 of the treaty of 1835, have been “ equally divided among all the people belonging to the. Cherokee Nation east, according to the census just completed,” while the ninth article of the treaty of 1846, after providing for deductions for money properly expended under the treaty of 1835, provides that:

“ The balance thus found to be due shall be paid over, per capita, in equal amounts, to all those individuals, heads of families, or their legal representatives, entitled to receive the same under the treaty of 1835 and the supplement of 1836, being all those Cherokees residing east at the date of said treaty and the supplement thereto.”

Hence whatever sums were properly chargeable under the treaty of 1835 were also chargeable under the ninth article of the treaty of 1846, and the balance remaining was to be equally -divided as above stated; while in respect to those Cherokees remaining east it was. expressly provided by article 10 of the treaty of 1846 — though they were not parties thereto — that nothing in said treaty “ shall be so construed as in any manner to take away or abridge an}'' rights or claims which the Cherokees now residing in States east of the Mississippi River had, or may have, under the treaty of 1835 and the supplement thereto.”

But by article 4 of the treaty of 1846, it is provided, in respect of the Western Cherokees, that in consideration of the cession by them of their interest in the lands east and west of the Mississippi River, including the 8,000,000 acres ceded by the treaty of 1835 — all of which was to remain the common property of the whole Cherokee people — after all the investments and expenditures properly chargeable to the $5,600,000 granted by the treaty of 1835 had been deducted, that a sum equal to one-third part of said residuum should be distributed per capita to each individual of the Western Cherokees, and that in estimating the expense of removal and subsistence of the Eastern Cherokees the sum stipulated as commutation therefor in article 8 of the treaty of 1835 be adopted.

Inasmuch, therefore, as the cost of removal, $1,111,284.70, was charged to the treaty fund in the settlement thus made, the Cherokees, both east and west, received less than they would have received but for such deduction. Hence, when that sum is restored to the treaty fund the whole Cherokee people will be entitled to share in the sum so restored, the same as they would have been at the time of the treaty of 1846, plus whatever interest may now be added thereto.

The sum thus restored becomes a trust fund in the hands of the United States, not for the purpose of investment nor to be held by them, but for the sole purpose of distributing the same to the Cherokee people, as provided by the treaties of 1835 and 1846.

By Revised Statutes, section 1091, this court is inhibited from allowing interest on any claim “ unless upon a contract expressly stipulating for the payment of interest.” There is no provision in either of the treaties of 1835 or 1846 respecting the payment of interest, except on the specific sums to be invested as provided by the treaty of 1835, and the court must therefore look elsewhere for authority, if interest is to be allowed.

No interest can be allowed on the sum under Revised Statutes, section 2096, as the same was not received under a treaty containing a stipulation for the payment of annual interest, but on the contrary was to be expended in defraying the cost of removal, etc. Nor can interest be allowed under Revised Statutes, section 2108, as the money is not going to incompetent or orphan Indians. Nor can interest be allowed under Revised Statutes, section 3659, as no interest has accrued thereon allowable by this court, nor has the same been invested in stocks of the United States or other interest-bearing securities.

As the act of February 27, 1851, supra, under which the settlement of 1852 was made, authorized the payment of interest from June 12, 1838, to April 1, 1851, on the sum appropriated, it may fairly be assumed that if the sum of $1,111,281.70 now in controversy had then been settled, interest would have been paid thereon as provided by the act. But that act has performed its office and the court can not look thereto for the payment of interest, even for the period stated, so that I have grave doubts as to whether there is any provision of law authorizing the court to allow interest on said sum, however much I may think it ought to be allowed; but for the purposes of this case I will assume the allowance of interest and the correctness of the distribution, as set forth in the court’s opinion.

Weight, J.,

dissenting:

I do not concur in the opinion nor the conclusion of the majority of the court concerning the expense of the removal of the Indians. It is not strictly accurate to say that the $1,111,281.70 of the Slade and Bender account is part consideration for the sale of the Outlet, for that item had no existence .until Slade and Bender made an account that was never in the records.

The stipulation relative to the existing dispute about the subject of removals was part of the agreement for such sale, and to that .extent may be treated as entering into the inducement or consideration for such sale, but the rights of the parties created by the contract could not be enlarged nor abridged, without the consent of. both, by the agents of either, while assuming to carry out the provisions of the agreement.

All that was contemplated by the fourth subdivision of article 2 of the agreement of December 19, 1891, was a statement of the account of moneys due the Cherokee Nation under any of the treaties ratified in the years 1817, 1819, 1825, 1828, 1833, 1835, 1836, 1846, 1866, and 1868, and any laws passed by the Congress for the purpose of carrying said treaties, or any of them, into effect. Upon such accounting being made the Cherokee Nation was given the right within twelve months to enter suit in this court, not for any moneys appearing to be due upon the accounting, but for any alleged or declared amount of money promised but withheld by the United States from the Cherokee Nation under any of the treaties or laws which might be claimed to be omitted from or improperly or unjustly or illegally adjusted in said accounting; or, if it should be found upon said accounting that any sum of money had been so withheld, the amount should be duly appropriated by Congress.

What manifestly was intended by the agreement was that the United States was to state, first, the moneys due to the Cherokee Nation under the treaties specified and the laws passed to carry them into effect, and, second, the disposition in fact made of such moneys — not what ought to have been done, but what was- done. In other words, the account should state the various sums so appropriated, so that it would appear in a precise and compact form how much money was due the Cherokee Nation under the treaties and laws mentioned and the disbursements thereof in fact made by the United States.

This was the view taken by the Interior Department before Congress ratified the treaty in the report of the Commissioner of Indian Affairs, communicated to Congress, and upon which was made the appropriation of March, 1893, of $5-,000 to employ such expert persons to properly render a complete account to the Cherokee Nation of moneys due, as required in the fourth subdivision of article 2 of the agreement. The report upon which the Congress acted in making such appropriation in effect stated that it seemed the intention of the parties to the agreement that what was required was a detailed statement of all the moneys received and disbursements made by the. United States of the Cherokee funds under treaties and acts of Congress, and that being true, it would require the services of an expert accountant, with assistants, probably twelve months or more to review and copy the Clierokee accounts and records running back nearly a century', and to prepare a statement of that kind it would require an appropriation of at least $5,000 to pay for the services of an expert accountant and assistants, and in the draft of the bill for the ratification of the agreement for the purchase of the Outlet the appropriation was provided for as recommended, thus proving by the act of ratification itself that Congress intended to required in such accounting only “ a detailed statement of all the moneys received and disbursements made by the United States of the Cherokee funds under said treaties and acts of Congress.” Nothing was intimated or stated that the accountants were authorized to do more than to review and copy the accounts and records running back nearly a century. No authority was given to change the accounts, but to copj'- them.

The defendants agreed to inform the Cherokee Nation how much money was due to them under the various treaties and laws, and how much, for what purpose, and in what maner it had been paid out, thus forming a basis for the nation, to come into this court and bring suit, not merely for a sum or balance appearing to be due on the face of such account, but to dispute the account, allege and declare an amount of money promised and withheld, or., in other words, that the United States had diverted or misappropriated an alleged amount, and upon such allegation this court was given jurisdiction to decide and give its judgment.

Slade and Bender, the accountants, mistook their authority, however, and usurped the jurisdiction conferred upon this court and decided the questions intended for this court. They did not merely state the facts of the account as they existed, but changed the facts and undertook to state the account as they thought it ought to have been made. Their account Avas not the account of the defendants, but the account they believed the defendants should have made instead. They substituted a different account for the one they Avere authorized to state.

It has been argued that the Secretary of the Interior by transmitting the Slade and Bender account to the Cherokee Nation thereby ratified and gave it effect. This can not be, for the plain reason that he was not the agent of the United States for such a purpose. The only authority conferred upon that officer was to employ such expert person or persons to properly render a complete account as required in the fourth subdivision of article 2 of the agreement.

It ought to require no argument to prove that beyond a mere statement of the existence of the account as in fact kept bjr the Government, a true exhibit thereof, the accounting of Slade and Bender is of no effect whatever. By their attempt to enter upon the jurisdiction so manifestly intended for this court they misled the Cherokee Nation,- and thwarted the intention of the parties to obtain an early adjudication of the matters now before the, court. As soon as this report was called to the attention of Congress it was repudiated, and the matter was again referred to this court in the form now existing, and the case is wholly unaffected by the report of Slade and Bender, except in so far as it exhibits the true state of the account, the record of the facts and acts of the GoArernment, as they actually occurred at the respective times of the various transactions.

By setting aside the accounting of Slade and Bender, as respects the charge for removals, Ave would be brought to a consideration of the case upon its merits, namely, the liability of the defendants for removals under the stipulations of the-treaty of 1835. No subsequent act of Congress changed the treaty in this respect. The appropriations made for such purpose Avere, in Anew of the provisions of the treaty, mere gratuities, and did not bind the defendants to assume further liabilities. Congress might do so, if they saw fit, but no legal obligation was assumed in that regard. Plaintiffs are now here claiming under the treaty of 1835, and it is familiar doctrine that they can not at the same time both claim under and repudiate its provisions. That the treaty of 1835, unchanged as it is, charged the expense of the removals to the plaintiffs is too plain for argument, as will appear by reading it within its four corners.

If the conclusion reached by the majority of the court is to be accepted as the final award of the moneys claimed in this suit, it will prove the futility of accomplishing any settlement of disputed matters by the mutual agreement of the parties.

Under the provisions of the act of 1851, in the year 1852 $912,026.13 was paid to and accepted by the Cherokee Nation with the express condition that the same should be in full satisfaction and in final settlement of all claims and demands whatsoever under any treaty theretofore made, with certain exceptions in which the present claim is not included. This settlement was fairly entered into and acquittance executed by the plaintiffs in conformity to the provisions of the act mentioned. No reason appears against the validity and binding force of the compromise, and there is none.

Pursuant to the opinion of the court and in conformity with the conclusions of law, ante, the following decree was entered on the 18th May, 1905:

The above causes, on motion and by consent of the parties, having heretofore been consolidated for purposes both of hearing and judgment by appropriate order of this court, came on to be heard upon the pleadings, orders, and proofs, and were argued by Messrs. Charles Nagel, Edgar Smith, and Frederic D. McKenney, on behalf of the Cherokee Nation; Messrs. Eobert L. Owen and William H. Eobeson, on behalf of the Eastern Cherokees; Mrs. Belva A. Lockwood, on behalf of certain individual claimants, styled Eastern and Emigrant Cherokees, and Mr. Assistant Attorney-General Praclt, on behalf of the United States; and the court being now sufficiently advised in the premises, it is, this 18th da}*- of May, A. D. 1905, adjudged, ordered, and decreed that the plaintiff, the Cherokee Nation, do have and recover of and from the United States as follows:

Item 1. Tlie sum of_ $2,125.00

With interest thereon at the. rate of 5 per cent from February 27, 1819, to elate of payment.

Item 2. The sum of-1, 111, 284. 70

With interest thereon at the rate of 5 per cent from June 12, 1888, to date of payment.

Item 3. The sum of_ 432. 28

With interest thereon at the rate of 5 per cent from January I, 1874, to date of payment.

Item 4. The sum of_ 20,406. 25

With interest thereon from July 1, 1903, to date of payment.

the proceeds of said several items, however, to be paid and distributed as follows:

The sum of $2,125, with interest thereon at the rate of 5 per cent'from February 27, 1819, to date of payment, less 5 per cent thereof contracted by the Cherokee Nation to be paid as counsel fees, shall be paid to the Secretary of the Interior in trust for the Cherokee Nation and shall be credited on the proper books of account to the principal of the “ Cherokee school fund ” now in the-possession of the United States and held by them as trustees.

The sum of $432.28, with interest thereon at the rate of 5 per cent from January 1, 1874, to elate of payment, less 5 per cent thereof contracted by the Cherokee Nation to be paid as counsel fees, shall be paid, to the Cherokee Nation to be received and receipted for by the treasurer or other proper agent of said nation entitled to receive it.

The sum of $20,406.25, with interest thereon at the rate of 5 per cent per annum from July 1, 1893, to date of pajunent, less 5 per cent thereof contracted by the Cherokee Nation to be paid as counsel fees, shall be paid to the Secretary of the Interior and credited on the proper books of account to the principal of the “ Cherokee national fund,” now in the possession of the United States and held by them as trustees.

The sum of $1,111,284.70, with interest thereon from June 12, 1838, to date of payment, less such counsel fees'as may be chargeable against the same under the provisions of the contract with the Cherokee Nation of January 16, 1903, and such other counsel fees and expenses as may be hereafter allowed by this court under the provisions of the act of March 3, 1903 (32 Stat., 996), shall be paid to the Secretary of the Interior, to be by him received and held for the uses and purposes following:

First. To pay the costs and expenses incident to ascertain-. ing and identifying the persons entitled to participate in the distribution thereof and the costs of making such distribution.

Second. The remainder to be distributed directly to the Eastern and Western Cherokees, who were parties either to the treaty of New Echota, as proclaimed May 23, 1836, or the treaty of Washington of August 6, 1846, as individuals, whether east or west of the Mississippi River, or to the legal representatives of such individuals.

So .much of any of the above-mentioned items or amounts as the Cherokee Nation shall have contracted to pay as counsel fees under and in accordance with the provisions of sections 2103 and 2106, both inclusive, of the Revised Statutes of the United States, and so much of the amount shown in item numbered two (2) as this court hereafter by appropriate order or decree shall allow for counsel fees and expenses under the provisions of the act of March 3, 1903, above referred to, shall be paid by the Secretary of the Treasury to the persons entitled to receive the same upon the making of an appropriation by Congress to pay this judgment.

The allowance of fees and expenses by this court under said act of March 3, 1903, is reserved until the coming in of the mandate .of the Supreme Court of the United States.  