
    THE SAC AND FOX INDIANS OF IOWA v. THE SAC AND FOX INDIANS OF OKLAHOMA AND THE UNITED STATES.
    [No. 29994.
    Decided March 21, 1910.]
    
      On the Proofs.
    
    Tlie principal question in this case is whether Indians who individually remove from the agency of the tribe and acquire a residence in another part of the country remote from the agency have a right to participate in annuities assured to the tribe by treaties.
    I.Though all the parties to a suit unite in a stipulation that certain ex parte affidavits may be read as evidence the court will not be bound thereby.
    II.Where individual Indians voluntarily and without the consent of the United States withdrew from the reservation which had been provided for the tribe they ceased to be a legal entity or part of the entity and became simply individual Indians.
    III. A jurisdictional act of Congress can give individual Indians a forum in which to assert such rights as they may possess.
    IV. The United States as guardian of Indians deal with a nation, tribe, or band, and have never entered into contracts, compacts, or treaties with individual Indians.
    V.Where a treaty provides that each of the principal chiefs shall receive $500 annually out of annuities payable to the tribe with the approbation of their agent it is simply an agreement between the United States on the one part and the tribe on the other that that amount of money shall be paid to each chief with the approbation of their agent. This does not mean that a tribe may divide and subdivide.
    VI.There is no vested interest in unallotted tribal lands and undistributed tribal funds. The lands and moneys of an Indian tribe are public lands and public moneys. The treaties with the Sacs and Foxes and the evidence offered in the case reviewed.
    
      The Reporters’ statement of tbe case:
    Judgment was rendered in this case dismissing the petition May 20, 1909. No opinion was filed, the case really going off on the general proposition that the United States had discharged all their treaty obligations. The claimants then moved for a new trial and to amend the findings. The court now overrules the motion for a new trial, but files the following amended findings of fact:
    I. The act of Congress approved March 1,1907 (34 Stats., 1055), conferring jurisdiction of the claim herein on this court is as follows:
    “An Act to authorize the Court of Claims to hear, determine, and adjudicate the claims of the Sac and Fox Indians of the Mississippi in Iowa, against the Sac and Fox' Indians of the Mississippi in Oklahoma, and the United States, and for other purposes.
    
      aBe it enacted, by the Senate and House of Representatives of the United States of America in Congress assembled, That full legal and equitable jurisdiction, without regard to lapse of time, is hereby conferred upon the Court of Claims to hear, determine, and adjudicate, as justice and equity shall require, with right of appeal to the Supreme Court of the United States by any party in interest, all claims of the Sac and Fox Indians of the Mississippi in Iowa, against the- Sac and Fox Indians of the Mississippi in Oklahoma, and the United States for money claimed to be due to them as their proportionate shares, according to their numbers, and not heretofore paid to or expended for them, of the appropriations made by Congress for fulfilling treaty stipulations with the confederated tribes of the Sac and Fox Indians of the Mississippi, or arising from the disposal or sale of lands of said confederated tribes, or otherwise, including the claims set out in the Senate Document Numbered Sixty-four, Fifty-seventh Congress, first session, for which suit may be instituted in the Court of Claims within ninety days after the passage of this act by petition signed by the principal chief of said Sac and Fox Indians in Iowa, or by the attorney employed by the proper authorities of said Indians; the compensation to be paid to their said attorney by the Sac 'and Fox Indians of the Mississippi in Iowa, for his services and expenses rendered and to be rendered in the prosecution of said claims, shall be fixed by the Court of Claims on the termination of said suit. The Attorney-General shall appear and defend in said suit, so far as the United States may be concerned. The Sac and Fox Indians in Oklahoma may appear, by counsel employed by their proper authorities, to defend on their behalf. Said suit, on motion of either of the parties thereto, shall be advanced on the dockets of either of said courts and be determined at the earliest date practicable. The reports made to Congress on any of said claims by any department of the Government and printed as congressional documents shall be received as evidence in said suit, so far as the facts therein may be concerned, and shall be given such weight as the court may determine for them.”
    II. The confederated tribe of the Sac and Fox Indians of the Mississippi were in 1842 occupying a tract of country in what was then the Territory of Iowa. They numbered in that year 2,348 persons. Under the treaty of October 11, 1842 (7 Stats., 596), made between the Sac and Fox Indians of the Mississippi and the United States, said Indians ceded to the United States their land in Iowa, and as part consideration therefor they were to be assigned for their permanent residence & tract of land suitable and convenient for Indian purposes upon the Missouri River or some of its waters. The tract of land designated and assigned by the President for that purpose was in what is now the State of Kansas. During the years 1845 and 1846 said Indians removed from the State of Iowa to the reservation provided for them in Kansas in pursuance of said treaty. In 1846 said Indians numbered 2,278 persons and in 1851, 2,660 persons.
    III. In the year 1855 certain members of the Sac and Fox Indians of the Mississippi, residing on their reservation in Kansas, left said reservation without permission or authority from any officer or agent of the United States, and returned to the State of Iowa and settled there on what was formerly a part of the Sac and Fox Reservation in that State. The number of such Indians, their names, sex, and ages are not shown by any competent evidence.
    At intervals from 1862 to 1866 certain other members of the Sac and Fox tribe in Kansas left the reservation there without permission or authority from any officer or agent of the United States and joined their brethren in Iowa. The number of such Indians who thus subsequently returned to Iowa, their names, sex, and ages are not established by competent evidence.
    IV. On July 15, 1856, the legislature of Iowa passed an act as follows:
    “ (Ci-IAPTER 30-INDIANS.)
    “An Act permitting certain Indians to reside within the State.
    “ Section 1. Be it enacted by the General Assembly of the State of Iowa, That the consent of the State is hereby given that the Indians now residing in Tama County, known as a portion of the Sacs and Foxes, be permitted to remain and reside in said State, and that the governor be requested to inform the Secretary of War thereof, and urge on said department the propriety of paying said Indians their proportion of the annuities due or to become due to said tribe of Sac and Fox Indians.
    
      “ Sec. 2. That the sheriff of said county shall, as soon as a copy of this law is filed in the office of the county court, proceed to take the census of said Indians now residing there, giving their name and sex, which said list shall be filed and recorded in said office; the persons whose names are included in said list shall have the privileges granted under this act, but none others shall be considered as embraced within the provisions of said act.
    “ Sec. 3. This act shall take effect from and after its publication in the Iowa Capital Reporter and Iowa City Republican, published at Iowa City.
    “Approved, July 15, 1856.”
    After the passage of the above act the claimant Indians with their own funds purchased land in Tama County, Iowa, which they have ever since resided on and cultivated.
    The number of Indians embraced within the terms of the above act of the Iowa legislature as then residing in Tama County is not shown, nor are their names, sex, and ages showm.
    V. From 1855 to 1866 there -was no Indian agent or other officer or agent of the United States with said band of Indians in Iowa, and said Indians do not appear to have been recognized in any manner by the United States during that period. The fact that certain of the Sac and Fox Indians of the Mississippi had left their reservation in Kansas appears to have been known to the Government at the time the treaty of 1859 was entered into with said Indians as hereinafter set forth. Special Agent Leander Clark took a census of the Sac and Fox Indians in Iowa May 31, 1866, which showed the whole number of said Indians at that time to be 264, and he appears to have expended for goods and traveling expenses on account of annuities for the year 1865 the sum of $5,359.06 for said Indians.
    With the exception of the said sum of $5,359.06 so expended for the year 1865 as aforesaid, all of the annuities and other moneys of the confederated tribes of the Sac and Fox Indians of the Mississippi from 1855 to 1866, both inclusive, were paid to or expended for said Indians by the agents and superintendents at the Sac and Fox Agency, Kans.
    VI.' Those Sac and Fox Indians who left Kansas in 1862 and thereafter and went to Iowa received their shares of the annuities at the last payments made before they left.
    Whether any of those Indians who left the Sac and Fox reservation in Kansas and went to Iowa, as hereinbefore set forth, ever returned to Kansas and received their annuities is net shown by competent evidence.
    VII. October 1, T859, the United States entered into a treaty with the confederated tribes of Sacs and Foxes of the Mississippi, at the Sac and Fox Agency in the Territory of Kansas (15 Stats., 467-471), bjr which it was provided that certain lands should be set apart for allotment in severalty and the surplus lands of the reservation should be sold to pay the debts of the confederated tribes of Sacs and Foxes or the individual members thereof. Article 7 of said treaty recited the fact that the Sacs and Foxes of the Mississippi were anxious that all members of the tribe should participate in the advantages of the treaty, and to that end invited all who were separated to rejoin and reunite with them, and it was agreed that the Commissioner of Indian Affairs, as soon as practicable, should have the nonresident members of the tribe notified of the advantages of the treaty in order to induce them to come in and unite with their brethren, “ and to enable them to do so, and to sustain themselves for a reasonable time thereafter, such assistance shall be provided for them at the expense of the tribe as may be actually necessary for that purpose; provided, however, that those who do not rejoin and permanently reunite themselves with the tribe within one year from the date of the ratification of this treaty shall not be entitled to the benefit of any of its stipulations.”
    VIII. On February 18, 1861, the Sac and Fox Indians of the Mississippi entered into a treaty with the United States— proclaimed October 14, 1868 — by the terms of which said Indians ceded to the United States for the sum of $1 an acre all of their lands in the Territory of Kansas and agreed to remove to a reservation in the Indian Territory, now the State of Oklahoma.
    Article 8 of that treaty provided that no part of the invested funds of the tribe or of any moneys which may be due to them under the provisions of previous treaties, nor of any moneys provided to be paid to them by this treaty, shall be used in payment of any claims against the tribe accruing previous to the ratification of this treaty, unless herein expressly provided for.
    Article 21 of said treaty expressed a desire on the part of the Sacs and Foxes of the Mississippi that all the members of their tribe should participate in the advantages to be derived from the investment of their national funds, sales of lands, etc., .and it was agreed that, as soon as practicable, the Commissioner of Indian Affairs should cause the necessary proceedings to be adopted, to have such members of the tribe as may be absent notified of the agreement and its advantages and to induce them to come in and permanently unite with their brethren, and that no part of the funds arising from or due the nation under this or previous treaty stipulations shall be paid to any bands or parts of bands who do not permanently reside on the reservation set apart to them by the Government in the Indian Territory as provided in said treaty, except those residing in the State of Iowa.
    In thé Indian appropriation act of March 2, 1867 (14 Stats., 507), it was provided “ That the band of Sacs and Foxes of the Mississippi, now in Tama County, Iowa, shall be paid pro rata according to their numbers, of the annuities so long as they are peaceful and have the assent of the government of Iowa to reside in that State.
    IX. The first payment to the Sacs and Foxes in Iowa under said treaty óf 1867 was made early in the year 1867, the proportion of said annuities so paid to them at that time being $11,174.66, and payments to said Indians at that rate were continued up to and including the fiscal year 1884.
    The numbers upon which said annuities were apportioned by the Secretary of the Interior fixing the amount to which claimant Indians were entitled at $11,174.66 is not shown, and there does not appear to have been any fixed numbers adopted and used as a basis for apportionment during the period from. 1867 to 1884, inclusive. Claimant Indians protested that the amount so apportioned to them was not their pro rata share according to their numbers, of the annuities, and thereafter refused to accept the amount so apportioned to them and continued to refuse to accept same until Congress, by a provision in the Indian appropriation act of March 17, 1882 (22 Stats., 78), enacted:
    “ That hereafter the Sacs and Foxes of Iowa shall have apportioned to them from appropriations for fulfilling the stipulations of said treaties no greater sum thereof than that heretofore set apart for them,”
    whereupon said Indians consented to receive the money apportioned to them from their tribal annuities.
    X. In the Indian appropriation act of July 4, 1884 (23 Stats., 85), it was provided “ That hereafter the Sacs and Foxes of Iowa shall have apportioned to them, from appropriations for fulfilling the stipulations of said treaties, their per capita proportion of the amount appropriated in this act, subject to provisions of treaties with said tribes; but this shall apply only to the Sacs and Foxes now in Iowa: And provided further, That this shall apply only to original Sacs and Foxes now in Iowa, to be ascertained by the Secretary of the Interior.”
    Thereupon, in pursuance of said act, the Secretary of the Interior caused the number of the Sac and Fox Indians in Iowa to be ascertained and found 311 original Sac and Fox Indians residing in that State. He also caused the number of the Indians on the Sac and Fox Reservation in Oklahoma to be ascertained and found there were on said reservation 505 Indians in 1884 and 513 in 1887.
    Since that time these numbers, to wit, 317 for the claimant Indians and 513 for the defendant Indians, have been used and adopted as the basis of apportionment of the annuities of said tribes between the two branches thereof, except that in 1885 and 1886 the number used as the basis for the defendant Indians was 505.
    XI. In apportioning the $51,000 appropriated by Congress annually for annuities to the Sac and Fox Indians of the Mississippi the Government has, from 1885 to the date of filing the petition herein, first deducted from said $51,000 the sum of $11,500 provided for by the treaty of 1867, which amount was paid to or expended for the exclusive use and benefit of the Oklahoma branch, and then apportioned the remainder between the two branches of the confederated tribes on the basis of 317 for the claimant Indians and 513 for the defendant Indians, and these numbers have been used and adopted as the basis of apportionment of'the annuities between the two branches from 1884 to 1907^ except for the years 1885 and 1886.
    The competent evidence presented to the court does not show what increase, if any, or what decrease, if any, there was in the numbers of the respective tribes during said period.
    XII. Article 10 of the treaty of 1867 provides that the United States shall pay annually for five years after removal of the tribe the sum of $1,500 for the support of a physician and purchase of the medicines. The five years expired with the fiscal year 1874. The whole amount so provided for was expended for the benefit of the defendant Indians. Since 1874 the amount expended for said purposes has been annually deducted from the appropriations of the annuities for said tribes before any apportionment of the amount between the two branches, and the whole amount so deducted between July 1, 1874, and June 30, 1907, is $34,019.42, all of which was expended for the benefit of the defendant Indians.
    XIII. In 1895 the Sac and Fox Indians in Iowa presented a memorial to Congress asking for an adjustment of their claims:
    (1) For their proportionate shares of the tribal annuities from 1854 to 1866, inclusive;
    (2) For their just proportionate shares of the’ tribal annuities for the period from 1867 to 1894, inclusive, allowing them for said period their proportionate share of the $10,000 for support of manual training school and the national government of the tribe, and for the amount used for physicians and medicine; and
    (3) For their proportionate share of the proceeds of land ceded by the treaty of 1867, amounting to $147,393.32.
    Thereupon Congress passed an act approved March 2,1895 (28 Stats., 876-903), directing the Secretary of the Interior to examine the claim of said Indians and ascertain whether under any treaties or acts of Congress any amount was justly due them, as a portion of the Sac and Fox Indians of the Mississippi.
    In pursuance of said act of Congress the Secretary.of the Interior made an investigation of all the claims of the Iowa band as set forth in the memorial to Congress, which claims are practically the same as those now sued upon.
    As a result of said investigation the Secretary of the Interior found that on their third claim the claimant Indians were entitled to $62,016.83 for their proportionate shares of the $147,393.32 appropriated by the act of Congress of April 10, 1869, in payment for lands ceded under the treaty of 1867, from which he held there should be deducted $11,523.18 interest theretofore paid and $7,600 for overpayments of annuities for the years 1885 and 1886, leaving the net amount found to be due to the claimant Indians $42,893.25, and this sum was afterwards transferred on the books of the Treasury Department from the defendant Indians to the credit of the Sac and Fox Indians in Iowa.
    The Secretary of the Interior also found that there was nothing due on the' first claim for annuities from 1853 to 1867 for the reason that the same were forfeited in consequence of the Indians having abandoned their reservation in defiance of treaty stipulations and without the consent of the United States.
    ’ On the second claim he found that there was nothing due, holding that the annuities had been properly and justly apportioned and paid between 1867 and 1894 in accordance with the provisions of the several treaties and acts of Congress.
    
      Mr. Robert V. Belt for the Sac and Fox Indians in Iowa for the motion. Kappler and Merrillat and Struble ancl 8tiger Avere on the brief.
    
      Mr. Abram B. Serven for the Sac and Fox Indians in Oklahoma opposed. McGowan, Serven and Mohun were on the brief.
    
      Mr. George M. Anderson (with whom was Mr. Assistant Attorney-Generad John Q. Thompson) for the United States opposed.
   Atkinson, J.,

delivered the opinion of the court:

The claimants herein file a motion for a new trial and amendments to the findings of fact, on the grounds that the findings and judgment of the court heretofore rendered are contrary to the law and the evidence.

The special act of Congress authorizing the court to hear, determine, and adjudicate, as justice and equity shall require, the claims of the Sac and Fox Indians of the Mississippi in loAva against the Sac and Fox Indians of the Mississippi in Oklahoma and the United States, is fully set forth in the findings and consequently need not be repeated here.

The Sac Indians first appear in treaty relations with the United States in 1789, when they AA^ere parties to a treaty with the Wyandotte and other Indians (7 Stats., 28). In 1804 (Ibid., 84) General Harrison was instructed to negotiate a treaty with them, the purpose being to secure control of the lands claimed by these Indians on the eastern side of the Mississippi Eiver and to offer them proper compensation for the cession of the territory desired by the Government. In these negotiations the Fox tribe also appeared (their holdings being principally, if not entirely, on the west side of the Mississippi) and participated in the treaty. It was therein agreed that the Sacs should be paid an annuity of $600 and the Foxes $400 for the cession of their holdings, they being regarded as one nation (Ibid., 84), but they, however, preserved their separate tribal relations. Several additional treaties were subsequently negotiated with them, both as separate and as confederated tribes.

By the treaty of 1842 (7 Stats., 596) the Sac and Fox tribe was settled upon a reservation provided for them in Kansas, to which they were removed in 1845 and 1846 from their former reservation in Iowa. About the year 1855 a portion of the tribe, being dissatisfied with their Kansas location, left the reservation and returned to Iowa without the consent of the Indian agent in charge of them or other government officials.

In 1851 the Iowa legislature enacted a laAV authorizing them to remain in that State, but therein expressly provided that none but those at that time within the State should be embraced within its provisions. Here they purchased a tract of land with annuity funds which they had drawn prior to leaving their Kansas reservation and established themselves thereon, and there they still remain. It appears, however, that subsequent to 1855 and up until about 1867,. other members of the tribe left the Kansas reservation and rejoined their brethren in Iowa, in violation of the act of the Iowa legislature. From 1855 to 1866 there was no Indian agent with the band in Iowa, and they were not recognized in any manner by the Commissioner of Indian Affairs or the Secretary of the Interior, and consequently no annuities were paid to them as such band.

In 1867 (15 Stats., 495) another treaty was maqle with the Sacs and Foxes by which they were granted certain lands in the Indian Territory (now Oklahoma) in lieu of their holdings in Kansas, and pursuant to this treaty the main tribe was removed thither in 1869, where they now remain. The year this treaty was concluded (1867) Congress enacted a law directing the Indian Office to pay the Iowa band their proportion of the annuities allotted to the Sac and Fox tribe, which has since that time been regularly done.

The claimant band of Sac and Fox Indians (those residing in Iowa) contend that from 1855 to 1867 they were entitled to their fro rata share of the annuities paid to the tribe while said tribe remained in Kansas and since they were located on the Oklahoma reservation, although they abandoned the tribe without its permission and contrary to the orders and authority of the Secretary of the Interior. They further contend that since 1867 they have been discriminated against in the distribution of annuities; that they are also entitled to a share in the proceeds of certain tribal lands sold to the United States pursuant to the treaty of 1859 (15 Stats., 467), and also to $500 salary per year for their chief for a period of thirty-seven years. All of which aggregate the sum of $454,215.80, with interest on a part thereof from an unascertained date, and for the recovery of which they bring this suit.

The defendant Indians, in substance, contend that claimants are not a legal entity, and hence a judgment in their favor could not extinguish such an indebtedness as is alleged in the petition; that from 1855 to 1867, when the Iowa band was absent from the regular tribe, without permission and without recognition by the Indian Office, the members of such band were not entitled to any part or share of the tribal annuity funds; that they have already received a greater proportion of tribal funds than they were entitled to under the various laws and treaties; and that under the treaty of 1859 the President and the Congress had full power to distribute the annuity funds of the tribe in such a manner as would be most advantageous to the tribe. Further, that by the act of May 17, 1882 (22 Stats., 78), Congress and the President stamped with their approval the manner in which the- Interior Départment had paid the annuities prior to that date. In 1884 (23 Stats., 85) the Secretary of the Interior was directed by the Congress to ascertain the number of Indians in the Iowa band. This was done and a fair basis of apportionment arrived at, which basis has been, since adhered to. The direction to the Secretary of the Interior by said act of 1884 imposed upon the Secretary the exercise of a discretion which in the absence of proof of abuse thereof or fraud can not now be inquired into by the courts; and, finally, that even though it should be shown that the claimants had received less than they were entitled to during the period covered by these claims, the United States are liable therefor and not the defendant Indians.

The United States have been made a party to the suit in order to comply with the legal requirement that where a suit is brought against a cestui que trust the trustee must be joined as one of the defendants, or where a suit is brought against a ward the guardian must also be made a party. It does pot appear that in all of theip numerous claims the claimant Indians have anywhere charged fraud in the official acts of the Interior Department, or that the money claimed was due them by the United States. Their contention is that they, as well as the defendant Indians, were wards of the Government, and that its agents had paid to the defendant Indians more than their proper share of certain specified funds due under various treaties between said defendant Indians and the United States. The fact that both Congress and the Indian Office have sought to deal fairly with both branches of this tribe is shown by the claim set out in Senate Document No. 16T, Fifty-fourth Congress, first session, wherein the Secretary of the Interior was directed to investigate certain claims of the Iowa band and report his findings thereon. This was done, as set forth in Finding XIII, and the report showed $42,893.23 to be due from the defendant tribe to the claimant tribe, which amount was promptly allowed by Congress and was passed to the credit of the Iowa band on the books of the Interior Department.

In the case at bar it was stipulated by and between the attorneys for the claimant and defendant Indians that certain affidavits of the Iowa band might be read as evidence in the trial of this cause, but the United States, who are a party to the suit, by their attorney, refused to sign said stipulation and are therefore not bound by it. But even if all the parties to the suit had agreed to the proposed stipulation, the court would not be bound thereby. Counsel can not, by stipulation or otherwise, require a court to admit testimony which, under legal rules, is not admissible as evidence in a case. Hence said ex parte affidavits, even though they may be printed in the report of a congressional committee, can not properly be admitted as testimony in this litigation.

We have thus far discussed the case in general terms, which brings-us to a consideration of the specific claims contained in the petition.

I. The first claim made by the claimant Indians is for the annuities alleged to have accrued to them during the years 1855 to 1867, inclusive, while they were in Iowa and prior to their recognition, in any manner, by. the Department of the Interior. It is conceded that various members of the Sac and Fox tribe of their own volition abandoned the tribal reservation in Kansas and returned to what was formerly a part of their' reservation in Iowa, covering the period from 1855 to 1867; but the number that thus removed is not shown by competent evidence, nor is it shown how many of these Indians returned to Kansas, during that period, to receive their annuities, nor are their names given; but it does appear that some of them did thus return for that purpose. The court is, therefore, barred, for want of competent testimony, to properly consider this feature of the case.

Moreover, as these Indians had voluntarily and without the consent of the United States, withdrawn themselves from the reservation which had been provided for them by the Governmént they were no longer a legal entity; they were simply individual Indians who had willfully separated themselves from their tribe. The jurisdictional act, however, gives them a forum in which to maintain such rights as they may possess. (Stewart v. The United States, 206 U. S., 185.)

It has been the custom and policy of the Government not to pay to or reserve annuities for Indians who are absent from their reservation without permission, and the wisdom and force of this practice can not be controverted. It was held by this court in the Blackfeather case (37 C. Cls. R., 233, 241), which was affirmed by the Supreme Court (190 U. S., 368), that “ The United States, as the guardian of the Indians, deal with the nation, tribe, or band, and have never, so far as is known to the court, entered into contracts, either express or implied, compacts, or treaties with individual Indians, so as to embrace within the purview of such contract or undertaking the personal rights of individual Indians.”

It is clear that inasmuch as the claimant Indians had voluntarily left the Kansas reservation provided by the Secretary of the Interior for the habitat of the tribe, it was their plain and unqualified duty to return to the agency (which it appears that some of them did) prior to the dates of the annual payments, and see that their names were enrolled for their individual shares of the annuities, because they must have known that the treaties which provided said funds required payment to be made to the Sac and Fox tribe at their established agency, and not elsewhere.

In the Journey calce ease (31 C. Cls. R.., 140) it was decided by this court that all Cherokee freedmen, who had abandoned their reservation and failed to return, were entitled to no part of the tribal funds; and in the more recent case of Pam-to-pee v. The United States (181 U. S., 371) the same principle is clearly laid down. The trend of the decisions of this court, and of the Supreme Court as well, in this class of cases is to the effect that it is the duty, of the Government to recognize tribes and not individual Indians in paying out annuities or other funds due to its Indian wards.

Considering all the facts which rightfully belong to this particular claim, the different treaties, the laws of Congress, the rulings of the Interior Department, and the decisions of the courts, we can not do otherwise than decide that no allowance can be made to claimants thereon.

II. The second claim, which is closely related to the first, is for a- share of annuity funds in addition to the amounts already paid to claimants from 1867 to 1899, and is set forth in paragraph 12 of the amended petition.

The treaty of 1867 provided that thereafter the claimants should share, in proportion to their population, in the annuities allotted to the Sac and Fox tribe, and they were paid their proportion according to an enumeration of the tribe taken a¡t that time, and were so paid annually until 1885. The defendants contend that there can be no relief accorded claimants under this claim for annuities paid prior to 1884, because Congress has stamped with its approval all such annuity payments; nor can there be a recovery for payments made since that date because the money so paid has been disbursed strictly in accordance with the express provisions of a law enacted in that year, which gave the Secretary of the Interior discretionary powers in making the roll. (Kimberlin v. Commissioners to the Five Civilized, Tribes, 104 Fed. R.., 653.) Besides, the findings are not of a character upon which a judgment could be predicated, even though the legal principles for which claimants contend were well founded.

Under article 6 of the treaty of 1859 (15 Stats., 467) the President and the Congress were given absolute authority to establish a new basis for the distribution of the tribal funds of the Sac and Fox Nation. In the act of May 17, 1882 (22 Stats., 78), it was provided “That hereafter the Sacs and Foxes of Iowa shall have apportioned to them from appropriations for fulfilling the stipulations of said treaties no greater sum thereof than that heretofore set apart for them.” And the act of July 4, 1884 (23 Stats., 85), further provided “That hereafter the Sacs and Foxes of Iowa shall have apportioned to them, from appropriations for fulfilling the stipulations of said treaties, their per capita proportion of the amount appropriated in this act, subject to the provisions of treaties with said tribes; but this shall apply only to the Sacs and Foxes now in Iowa: And provided further, That this shall apply only to original Sacs and Foxes now in Iowa to be ascertained by the Secretary of the Interior.”

Thus it appears that from 1882 to 1885 there could not be paid to claimant band of Indians a greater sum of money annually than they had received prior to that time, which may be construed as a legislative approval of the manner in whi.ch the fund had been distributed previous to that date.

Under the act of 1884, supra, the Secretary of the Interior caused a census of the original Sacs and Foxes in Iowa to be taken, which showed their population to be 317, and from that time, including the year 1885, they were paid upon the basis thus determined.

All the facts deducible from the admissible testimony bearing upon this particular claim are carefully set out in the findings. Under the act of March 2, 1895 (28 Stats., 876-903), the Congress directed the Secretary of the Interior to examine the claims of the claimant Indians, and ascertain whether under treaties or acts of Congress any amount is justly due them as a part of the Sac and Fox tribe of Indians of the Mississippi. In pursuance of said act the Secretary of the Interior made an investigation of all of the claims of the Ioiva band as set forth in their memorial to the Congress, which claims are practically the same as are involved in this suit. The investigation was duly made, and a balance of $42,893.25, as heretofore stated, was found to be due them, which amount, as shown by Finding XIII, was promptly paid.

III. The third item, which is set out in paragraph 13 of the amended petition, avers that claimants are entitled to $25,788.85 on account of an alleged unequal apportionment of annuities from 1900 to the time the suit was instituted. This claim is simply a continuation of the second. The two claims should have been considered together as one claim for the whole period of both. What we have said under the head of the second item applies with equal force to this one, and consequently no allowance can be made.

IY. This is a claim for $500 a year for thirty-seven years’ salary of the alleged chief of the claimant Indians. This claim is predicated on article 4 of the treaty of 1842, supra, which reads:

“ It is agreed that each of the principal chiefs of the Sacs and Foxes, shall hereafter receive the sum of five hundred dollars annually, out of the annuities payable to the tribe, to be used and expended by them for such purposes as they may think proper, with the approbation of their agent.” (7 Stats., 596.)

This article is an agreement between the United States on the one part, and the tribe on the other, providing that out of the annuities “ payable to the tribe ” $500 should be payable to each of the “ principal chiefs,” but “ with the approbation of their agent.” Subsequently a portion of the tribe of their own volition separated themselves from the main tribe and were without an agent up to the year 1867. Had an agent in Kansas approved a payment to an alleged chief in the Iowa band, there would even then have been grave doubt of the legality under this provision to make such payment in view of the separation. If this were allowable, tribes would be rent and there would be no end to the confusion that would follow. While it is true that the act of May 31, 1900 (31 Stats., 245), directed the Secretary of the Interior to pay to the head chief of the Iowa band $500 salary per year, during 'the remainder of his natural life, beginning with the fiscal year of 1900, yet that does not imply that Congress intended that the chiefs who preceded him should also be paid a like salary, thus making the act retroactive. On the contrary, beginning with the fiscal year 1900, the court is prohibited from going back of that date. Much would have to be read into the act to authorize such procedure, and this we are not authorized to do. This is the construction given to the act by the Secretary of the Interior, and under the authorities we have already cited under the first item of the jDetition we would not be justified in overruling him. Nor is there anything in the special jurisdictional act controlling or that would justify such action. Hence no allowance can be granted under this claim.

V. The fifth and last item of the claim, which is contained in the fifteenth paragraph of the amended petition, relates to a share in a fund for land disposed of by the Sac and Fox tribe pursuant to the treaty of 1859, sufra, and interest on the amount which may be found due and payable to the claimant Indians. We can find no line of competent testimony in the record to justify this contention. This claim was never presented to the Interior Department, and even if it were a proper claim against the defendants and was sustained by competent proof, we can see no way by which the court could arrive at the amount which might be due and render a judgment therefor. Furthermore, it is contended by defendant’s counsel that there are not now and never were any funds in the Treasury derived from the cession of these lands, the money having been used according to the terms of the treaty in the payment of the debts of the Sac and Fox tribe of Indians. The treaty provided that all Indians absent from the tribe might return and participate in the benefits of its provisions. There is no competent proof in the record to enlighten the court as to the number of Indians who abandoned the tribe from 1855 to 1867, or how many returned during that period and participated in the distribution of the tribal funds, or how many finally returned to the Oklahoma reservation and thereafter became permanent members of the tribe. In the absence of proof to the contrary, it is only just to assume that those who did not return to the tribe until 1862 shared in the benefits of the treaty of 1859, and as no proper effort has been made by claimants to show who the Indians were that had returned to Iowa prior to 1859, and what, if any, relationship, legal or otherwise, they bear to the claimants in this case, no allowance can be made.

Furthermore, the Supreme Court has decided that there is no vested interest in unallotted tribal lands and undistributed tribal funds. As was said in the case of Stephens v. The Cherokee Nation (174 U. S., 445), “ * * * the lands and moneys of these tribes are public lands and public moneys, and are not held in individual ownership, and the assertion by any particular applicant that his right therein is so vested as to preclude inquiry into his status involves a contradiction in terms.” The same principle was laid down in Wallace v. Adams (143 Fed. R., 716), which was subsequently affirmed by the Supreme Court (204 U. S., 415).

From what we have said above there can be no allowance to claimants on this branch of the case.

The claimants’ motion to amend findings is allowed in part and overruled in part. The former findings are withdrawn and new findings this day filed in lieu thereof. Judgment to stand.  