United States v. Old Settlers

148 U.S. 427 (1893)

UNITED STATES
v.
OLD SETTLERS.
OLD SETTLERS
v.
UNITED STATES.

Nos. 1031, 1032.

Supreme Court of United States.

Argued December 13, 14, 1892. Decided April 3, 1893. APPEALS FROM THE COURT OF CLAIMS.

Mr. Reese H. Voorhees and Mr. A.H. Garland, (with whom was Mr. John Paul Jones on the brief,) for the Old Settlers.

Mr. Solicitor General and Mr. F.P. Dewees for the United States.

MR. CHIEF JUSTICE FULLER delivered the opinion of the court.

In Harvey v. United States, 105 U.S. 671, 691, a claim had been considered by the Court of Claims and judgment rendered for a certain amount, but less than would have been awarded, but for certain terms of the contract counted on, which required reformation, on the ground of accident or mistake, in order fully to express the intention of the parties; and a special act was passed again referring the claim for adjudication, and stating: "To that end jurisdiction is hereby conferred on said court to proceed in the adjustment of the account between said claimants and the United States, as a court of equity jurisdiction; and may, if according to the rules and principles of equity jurisprudence, in its judicial discretion, reform said contract and render such judgment as justice and right between the claimants and the said government may require."

On appeal to this court from a decree rendered under this act, it was contended on the part of the United States that the appeal could not be heard, because there was not in the record "any finding by the Court of Claims of the facts in the case, in the nature of a special verdict, with a separate statement of the conclusions of law upon such facts." But this court held, through Mr. Justice Blatchford, that: "The rule in regard to findings of fact has no reference to a case like the present, of equity jurisdiction conferred in a special case by a special act; and, in such a case, where an appeal lies and is taken under section 707 of the Revised Statutes, this court must review the facts and the law as in other cases in equity, appealed from other courts."

In the present case the Court of Claims filed findings of fact and conclusions of law, and declined to send up the evidence. We are of opinion, however, that the rule laid down in Harvey v. United States is applicable. The claim was referred for adjudication, and jurisdiction was conferred on the Court of Claims to determine the amount, if any, justly due from the United States to the Western Cherokees, in a manner involving the statement of an account, upon the investigation of controverted items and complicated and involved facts, and it was declared that it was "the intention of this act to allow the said 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 of the said Indians, may be fully considered and determined."

We concur in the statement of Mr. Justice Nott in the opinion of the court below, that the latitude conferred "must be deemed the unrestricted latitude of a court of equity in stating an account, distributing a fund, and framing a decree, so comprehensive and flexible as to secure to each suitor his joint or individual rights."

The remedy in equity in cases of account is generally more complete and adequate than it is or can be at law, 1 Story Eq. Jur. § 450; Kilbourn v. Sunderland, 130 U.S. 505, and we regard the language of the act of Congress as manifestly used with the intention that equity powers should be exercised in the disposition of the case. It was upon this view that we directed the certiorari to issue, and in arriving at our conclusions, while we have had the advantage of the findings of the Court of Claims, we have considered and determined the case for ourselves upon an examination of the entire evidence.

The prayer of the petitioners is in the alternative: First, that they be relieved from the provisions of the treaty of 1846 on the ground of duress and fraud, and that the United States be decreed and adjudged to pay them the value of two-thirds of 13,610,795.24 acres of land at sixty-two and one-half cents per acre, being the sum of $5,671,164.72½, together with the sum of $30,000 for property destroyed, and $9179.63¼ for the agency reservation and improvements in Arkansas, less one-third of the amount of $500,000 for additional lands and of $500,000 permanently invested, and the payment in 1851 of $532,896.90, leaving a balance of $4,844,113.65, with interest at the rate of five per cent per annum from June 12, 1838, until paid; second, that, if petitioners be not entitled to that relief, the United States be decreed to pay them the sum of $330,756.94, under the provisions of the fourth article of the treaty of 1846, together with the before-mentioned sums of $9179.16¼ and of $30,000, aggregating the amount of $369,936.10¼, with interest as aforesaid.

The Court of Claims declined to go behind the treaty of 1846 upon the ground that it was not within the province of a court, either of law or equity, to determine that a treaty or an act of Congress had been procured by duress or fraud, and declare it inoperative for that reason. Fletcher v. Peck, 6 Cranch, 87, 130; Ex parte McCardle, 7 Wall. 506, 514; People v. Draper, 15 N.Y. 545, 555; Railroad Company v. Cooper, 33 Penn. St. 278; Wright v. Defrees, 8 Indiana, 302.

And while it was conceded that Congress might confer upon that court extra-judicial powers, yet the court was of opinion that this could not be held to have been done by the act authorizing the institution of this suit, since it was therein provided that whatever judgment might be rendered, whether for the complainants or defendants, might be appealed to the Supreme Court, whose jurisdiction, as defined by the Constitution, was strictly judicial, and could neither be enlarged nor diminished by legislative authority. Gordon v. United States, 2 Wall. 561; Taney, C.J., 117 U.S. 697, Appx.; In re Sanborn, ante 222.

The contention of the petitioners is that, under the act of jurisdiction, the treaty of 1846 is to be considered as a contract in every respect similar to one made between private parties, and that the United States has no other or greater privileges or advantages than a private party would have under a similar contract, and United States v. Arredondo, 6 Pet. 691, 710, 711, 735, is cited. That was a suit for land claimed under a Spanish grant, and came to this court on appeal from the decree of the judge of the Superior Court for the Western District of the Territory of Florida, that court having been authorized by the act of Congress of May 23, 1828, to receive and adjudicate upon such claims, upon the petition of the claimant, "according to the forms, rules and regulations, conditions, restrictions and limitations prescribed to the district judge, and claimants in Missouri, by the act of the 26th May, 1824."

Reviewing the two statutes, this court said: "In conformity with the principles of justice and rules of equity, then, the court is directed to decide all questions arising in the cause, and by a final decree to settle and determine the question of the validity of the title, according to the law of nations, the stipulations of any treaty and proceedings under the same, the several acts of Congress in relation thereto, and the laws and ordinances of the government from which it is alleged to be derived, and all other questions which may properly arise between the claimants and the United States, which decree shall, in all cases, refer to the treaty, law or ordinance under which it is confirmed or decreed against. . . . By the stipulations of a treaty are to be understood its language and apparent intention manifested in the instrument, with a reference to the contracting parties, the subject-matter, and persons on whom it is to operate. The laws under which we now adjudicate on the rights embraced in the treaty, and its instructions, authorize and direct us to do it judicially, and give its judicial meaning and interpretation as a contract on the principles of justice and the rules of equity. . . . The only question depending is whether the claimants or the United States are the owners of the land in question. By consenting to be sued, and submitting the decision to judicial action, they have considered it as a purely judicial question, which we are now bound to decide as between man and man, on the same subject-matter and by the rules which Congress themselves have prescribed, of which the stipulations of any treaty and the proceedings under the same, form one of four distinct ones. . . . But the court are, in this case, authorized to consider and construe the treaty, not as a contract between two nations, the stipulations of which must be executed by an act of Congress before it can become a rule for our decision, not as the basis and only foundation of the title of the claimants; but as a rule to which we must have a due regard in deciding whether the claimants have made out a title to the lands in controversy, — a rule by which we are neither directed by the law nor bound to make our decree upon, any more than upon the laws of nations, of Congress, or of Spain. The acts of 1824 and 1828 authorize and require us to decide on the pending title on all the evidence and laws before us. Congress have disclaimed its decision as a political question for the legislative department to decide, and enjoined it on us as one purely judicial."

It will be perceived that that decision is not authority for the proposition that a court may be clothed with power to annul a treaty on the ground of fraud or duress in its execution, nor does any such question arise in the case before us. There is nothing in the jurisdictional act of February 25, 1889, inconsistent with the treaty of 1846, (or any other,) and nothing to indicate that Congress attempted by that act to authorize the courts to proceed in disregard thereof. Unquestionably a treaty may be modified or abrogated by an act of Congress, but the power to make and unmake is essentially political and not judicial, and the presumption is wholly inadmissible that Congress sought in this instance to submit the good faith of its own action or the action of the government to judicial decision, by authorizing the stipulations in question to be overthrown upon an inquiry of the character suggested, and the act does not in the least degree justify any such inference.

The claim referred to the Court of Claims for adjudication is the claim set forth in the report of the Secretary of the Interior to Congress of February 3, 1883, and that report was made under the act of Congress of August 7, 1882, which provided that the Secretary should investigate and report to Congress what in his opinion would be an equitable settlement of the matters in dispute between these Indians and the United States, "arising from or growing out of treaty stipulations, or the laws of Congress relating thereto; and what sum or sums of money, if any, should in his opinion be paid under such settlement." The same language is used in the act, and the court is "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."

As a case arises under the Constitution or laws of the United States, whenever its decision depends upon the correct construction of either, Cohens v. Virginia, 6 Wheat. 264, 379; Osborn v. Bank of the United States, 9 Wheat. 737, 824, so a case arising from or growing out of a treaty is one involving rights given or protected by a treaty. Owings v. Norwood's Lessee, 5 Cranch, 344, 348.

The settlement of a controversy arising or growing out of these Indian treaties or the laws of Congress relating thereto, and the determination of what sum, if any, might be justly due under them, certainly does not include a claim which could only be asserted by disregarding the treaties or laws, or holding them inoperative on the ground alleged.

The Court of Claims was indeed to have "unrestricted latitude in adjusting and determining the said claim, so that the rights, legal and equitable, both of the United States and of the said Indians may be fully considered and determined." But this did not mean that either party was entitled to have or receive by virtue of the act anything more than each was entitled to under existing stipulations, or to bring supposed moral obligations into play for the disposal of the case. The inquiry was not to be technically limited by rules of procedure, or restrained by the distinctions between law and equity. Proceeding thus untrammelled, the court was to deduct "all offsets, counter-claims, 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." And, therefore, if conflict existed between treaty provisions, or between any of them and subsequent acts of Congress, such provisions might necessarily give way and be held invalid; but the language used did not involve a confusion of the respective powers of the departments of the government, nor furnish a basis for an external attack upon the validity of executive or legislative action.

Again, the determination of what, if anything, was justly due, was to be arrived at upon a full consideration of "whether or not the said Indians have heretofore adjusted and settled their said claim with the United States." That claim was the claim referred to the court, the claim which was reported upon by the Secretary, the claim which arose and grew out of treaty stipulations, the claim which was preferred in the protest of 1851, and not a claim for the loss of two-thirds of seven million acres of land and of exclusive rights in the outlet. There had been such a claim as the latter, but it had been definitively relinquished and released by the treaty.

The terms of the treaty of 1828, by which the seven million acres were guaranteed to the Cherokees, while the Western Cherokees were alone being dealt with, expressed that the purpose was to provide a home for the whole Cherokee people, including those East as well as those West. By article two of the treaty of 1835, the conveyance of land by the treaties of 1828 and 1833 is declared to have been to the Cherokee Nation of Indians, and eight hundred thousand acres additional was agreed to be conveyed in consideration of the sum of $500,000, that there might be no question as to there being a sufficient quantity of land for the accommodation of the whole nation on their removal West. That treaty was wholly inconsistent with the attitude subsequently assumed. The patent of December 31, 1838, ran to the Cherokee Nation. There are many documents in the record indicative of the view of the Indian Office that the Western Cherokees were only a contingently separate community from the Eastern body, and were subject to increase by the immigration of those East; and that they did not have, as an independent community, any ownership of the land, or rights therein, except what belonged to them in common with the whole Cherokee people. At the same time, the Western Cherokees did set up the opposite contention, and prosecuted it with the greatest vigor and ability before the political departments of the government, especially during the years 1842 to 1846. Indeed, prior to 1842, they seem to have acquiesced in the treaty of 1835, and welcomed not only the treaty party, but the great body of the Eastern Cherokees, to participation with them under existing laws. The papers presented in their behalf show, as stated by counsel, the most careful preparation and noticeable ability. In a memorial bearing date June 16, 1843, their alleged grievances were set forth in extenso, and it was insisted that by the forcible removal of the Eastern Cherokee Indians and their settlement among them, the Western Cherokees had been in effect dispossessed of two-thirds of their land. But in June, 1846, the Western Cherokees offered to submit their claims to a board of commissioners, to be appointed by the President and Senate of the United States, which commission it was stipulated should be invested with full power to settle the matters in controversy, according to the treaty stipulations. The commission was appointed, and its decision was against the claim of the Western Cherokees to the exclusive ownership of and rights in the land in question. On the 3d of August, 1846, the delegates representing the Western Cherokees declared that they did not acquiesce in the decision of the commissioners on this point, and should reassert "their exclusive right to the country," "should the treaty now proposed fail from any cause"; but the treaty did not fail, and, on the contrary, was duly executed by the parties on the 6th day of the same month. And this was followed by the accounting under the treaty, the act of Congress of September, 1850, and the payments made and receipted for thereunder. True, there was a protest that the receipts then given ought not to exclude these Indians from obtaining a further amount, but that protest was chiefly based upon the deduction of the cost of subsistence from the treaty fund, and asserted no claim on account of the land, nor the invalidity of the treaty. Moreover, they remained silent, so far as appears from this record, from 1846 until 1875, and when they commenced the agitation of renewed demands the grounds assigned conceded the binding force of the treaty, but questioned the payment under it as a final settlement of what was due.

Upon the facts in this record we can discover no ground for the revival of controversy by the Western Cherokees as to their ownership of or rights in the lands west of the Mississippi, and hold that any such claim in respect thereof as is put forward in the petition cannot be successfully maintained from any point of view. If any matter ever can be put at rest, that has been, and the treaty of 1846 has presented for nearly fifty years an insuperable bar to such a contention.

The treaty declared "that the land now occupied by the Cherokee Nation shall be secured to the whole Cherokee people for their common use and benefit"; and that whereas it had been decided by the board of commissioners appointed 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 the 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 that the Western Cherokees had a claim upon the United States, growing out of the equitable operation of the same treaty, as having a common interest in the lands occupied by the Cherokees east of the Mississippi River, as well as having retained a common interest "in the general funds of the nation," the ascertainment of "the value of that interest" was provided for, and the government agreed to distribute it among the Western Cherokees.

In consideration of the premises, the Western Cherokees released and quitclaimed to the United States all right, title, interest or claim they might have to a common property in the Cherokee lands east of the Mississippi River, and to exclusive ownership to the lands 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."

In order to arrive at the amount to be distributed per capita to the Western Cherokees, or Old Settlers, it was agreed that from the $5,600,000, the investments and expenditures properly chargeable thereon, and enumerated in the fifteenth article of the treaty of 1835, excluding all extravagant and improper expenditures, should be deducted, and that one-third of the residuum should constitute the value of their interest, and, consequently, the amount for distribution. An accounting was had accordingly, and the amount ascertained appropriated and paid over.

But it is argued that the object of the suit before us was to permit a relitigation of the correctness of that amount, and a determination as to whether anything more should have been paid at that time. And we are confronted by the objection, strongly urged on behalf of the United States, that, by the terms of the jurisdictional act, if it be found that "the said Indians have heretofore adjusted and settled their said claim with the United States," such adjustment and settlement must be treated as conclusive.

We agree, as was said in the case of Choctaw Nation, 119 U.S. 1, 29, that where, in professed pursuance of treaties, statutes have conferred valuable benefits upon the Indians, "which the latter have accepted, they partake of the nature of agreements — the acceptance of the benefit, coupled with the condition, implying an assent on the part of the recipient to the condition, unless that implication is rebutted by other and sufficient circumstances." And it is also true that when a party, without force or intimidation, and with a full knowledge of all the facts in the case, accepts, on account of an unliquidated and controverted demand, a sum less than what he claims and believes to be due him, and agrees to accept that sum in full satisfaction, he will not be permitted to avoid his act on the ground of duress. United States v. Child, 12 Wall. 232, 244.

But we think, under all the circumstances disclosed here, that Congress being convinced that a mistake had probably been made in the accounting in a matter which the Indians from the first had called attention to, and desirous, as being the stronger party to the controversy, that that superior justice, which looks only to the substance of the right, should be done in the premises, voluntarily waived any reliance upon lapse of time or laches, and, after attempts on its own part to arrive at a satisfactory result, determined to obtain a judicial interpretation of the treaties and laws bearing upon the subject, and to be bound by judicial decision in respect of the conclusions flowing therefrom, and arrived at upon equitable principles; and that the jurisdictional act passed in effectuation of such intention left it open to the courts to readjust the amount notwithstanding the claim might have been theretofore settled. In other words, if the adjustment and settlement were found to have been made upon an erroneous interpretation, which led to an obvious mistake, then Congress designed that the mistake should be corrected. We therefore proceed to examine the account in question in accordance with what we believe to have been the intention of Congress in the passage of this act.

As we have said, the investments and expenditures which were properly chargeable upon the $5,600,000 were to be deducted, and they were the investments and expenditures particularly enumerated in the fifteenth article of the treaty of 1835. That article provided for the deduction of the amounts "actually expended for the payment for improvements, ferries, claims for spoliations, removal, subsistence, and debts and claims upon the Cherokee Nation, and for an additional quantity of land, 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 national fund of $500,000 embraced the items last mentioned, and no dispute arises here as to that sum or the sums of $500,000 for the additional quantity of land, $1,540,572.27 for improvements, $159,572.12 for ferries, and $264,894.09 for spoliations. Petitioners claim, however, that no deduction should have been made for subsistence, and that the sum allowed for removal should be limited to 2200 Indians at $20 per head; and they further insist upon an allowance of $30,000 for property destroyed, while they abandon their claim for $9179.16¼ as the value of the Arkansas agency land and improvements, and concede that the sum of $4179.26 therefor, as found by the court below, may be accepted as correct. The Court of Claims disallowed the item of $30,000, and charged for the removal of 16,957 Cherokees at $20 each, and an item for the expenses of the Cherokee committee of $22,212.76.

We concur in the rejection of the claim for $30,000, which finds its basis in a resolution of a council of the Western Cherokees of November 16, 1846, asking the government to appropriate that sum to pay off damages and losses alleged to have been sustained by individual Indians in being compelled to leave their homes and go to the States for safety. No such claimants appear or are represented here, and the claim has no relation to per capita distribution. There is no color for its revival in this proceeding.

It was agreed by article four 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 2200, 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 2200 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 not be deducted.

The fourth article of the treaty of 1846 fixed a commutation for subsistence as well as for removal, but the eleventh article provided that whereas the Cherokee delegates contended that the amount expended for one year's subsistence was not properly chargeable to the treaty fund, it was thereby agreed that that question should be submitted to the Senate for its decision, which should decide whether the expense should be borne by the United States or the Cherokee funds, and the Senate, thus made the umpire, (it having been found that the $1,047,067 appropriated by the act of June 12, 1838, did not fully cover the expense of subsistence,) resolved that the Indians were entitled to $189,422.76 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." This decision was accepted and the money appropriated to make good the award. The act of 1838 grew out of the inducements offered in promotion of the removal of the entire body, and made the appropriation in discharge of an assumed obligation to subsist the Indians, if they would remove, notwithstanding the involuntary character of that removal. Taking the acts of 1838 and 1850, with the decision of the Senate, there can be no question that the United States concluded to bear and did bear the entire expense so far as subsistence was concerned. The Court of Claims, therefore, correctly deducted the sum of $339,140 for the removal of the whole number of Cherokees at $20 per head, and declined to deduct any charge for subsistence. It was really over this item that the sharpest controversy ensued; for by the original accounting the sum of $961,383.66 had been deducted for the removal and subsistence of 18,026 Cherokees, at $53.33 1/3 per head, which was erroneous as to the number, and on account of the inclusion of the commutation of $33.33 1/3 for subsistence.

In the account stated by the accounting officers of the Treasury, December 3, 1849, the sum of $101,348.31 was deducted from the fund for debts and claims upon the Cherokee Nation, made up of these items: For national debts, $18,062.06; for claims of United States citizens, $61,073.49, and for the Cherokee committee, $22,212.76. This sum of $101,348.31 was also deducted in the account stated in the report of the Senate committee of August 8, 1850, in the report of the Secretary of the Interior of February 23, 1883, and in the findings of the Court of Claims under the reference in February, 1884.

The Court of Claims in this suit rejected the items of $18,062.06 and $61,073.49, because, in the opinion of the court, there was no evidence to connect these items with the fund for distribution, while it held the item of $22,212.76 for the expenses of the Cherokee committee as properly chargeable under the twelfth article of the treaty of 1835, which provided for a committee to carry the treaty into effect. We are not persuaded that this conclusion was correct. Under the tenth article of the treaty of 1835, the United States agreed to pay the just debts and claims against the Cherokee Nation held by citizens of the same, and also the just claims of citizens of the United States for services rendered to the nation, and it was stated that "the sum of sixty thousand dollars is appropriated for this purpose." This should be regarded as $60,000 of the total amount, and in our judgment the debts and claims upon the Cherokee Nation mentioned in article fifteen, and to be deducted under article four of the treaty of 1846, should be confined, so far as the Western Cherokees are concerned, to $60,000, and that amount is justly chargeable against the fund; but we are not satisfied that the expenses of the committee authorized by the twelfth article of the treaty of 1835, which was a committee to recommend persons for the privilege of preëmption rights and to select missionaries, as well, indeed, as to transact all business which might arise in carrying into effect the provisions of the treaty, ought to be charged in addition.

In view of these considerations we find and state the account as follows:

The 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    264,894 09
For debts, &c. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     60,000 00
For removal of 16,957 Cherokees at $20 each . .    339,140 00
_____________
$3,364,178 48   3,364,178 48
_____________
Giving as the residuum to be divided . . . . . . . . . . . . . . . . . .  $2,235,821 52
_____________

One-third due to the Western Cherokees . . . . . . . . . . . . . . . . . . . . . ..    $745,273 84
Less payment September 22, 1851 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     532,896 90
___________
Leaving a balance of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..    $212,376 94

And the recovery should also include the sum of $4179.26 for the Arkansas agency.

By the second resolution adopted by the Senate, as umpire, September 5, 1850, it was decided that interest should be allowed, at the rate of five per centum per annum, upon the sum found due the Western Cherokees, from June 12, 1838, until paid. As before stated, our conclusion is that the sum then found due was less than should have been found by the amount of $212,376.94.

Under section 1091 of the Revised Statutes, no interest can "be allowed on any claim up to the time of the rendition of judgment thereon by the Court of Claims, unless upon a contract expressly stipulating for the payment of interest"; and in Tillson v. United States, 100 U.S. 43, it was held that a recovery of interest was not authorized under a private act referring to the Court of Claims a claim founded upon a contract with the United States, which did not expressly authorize such recovery. But in this case, the demand of interest formed a subject of difference while the negotiations were being carried on, the determination of which was provided for in the treaty itself; that determination was arrived at as prescribed, was accepted as valid and binding by the United States, and was carried into effect by the payment of $532,896.90, found due, and of $354,583.25 for interest. 9 Stat. 556, c. 91.

In view of the terms of the jurisdictional act and the conclusion reached in reference to the amount due, it appears to us that the decision of the Senate in respect of interest is controlling, and that, therefore, interest must be allowed from June 12, 1838, upon the balance we have heretofore indicated, but not upon the item of $4179.26, which stands upon different ground.

The question remains as to the character in which petitioners come into court and to whom the amount awarded should be distributed.

The "Old Settler," or Western Cherokees, are not a governmental body politic, nor have they a corporate existence, nor any capacity to act collectively. The money belongs to them as individual members of an Indian community, recognized as such by the treaty of 1846, and treated as distinct and separate from the Cherokee Nation, so far as necessary to enable the government to accord them their treaty rights. They are described in the fourth article of the treaty as "all those Cherokees west of the Mississippi, who emigrated prior to the treaty of 1835"; and they may be held to include those now living who so emigrated, together with the descendants of those who have died, the succession to be determined by the Cherokee law. The petition does not set forth their names, nor the extent of the rights and interests claimed, respectively, but purports to be brought by three persons, "for themselves and as commissioners" of the Western Cherokees, and they alleged that the claimants "are the remaining part of those Cherokee Indians who formed and composed the Western Cherokee Nation; and that they have maintained their separate organization so far as to adjust and settle their claims against the United States." But the evidence is quite inadequate to justify the court in treating the immediate petitioners as appointed by all the beneficiaries as their agents to receive and disburse the amount awarded.

The lands west of the Mississippi were held as communal property, not vested in the Cherokees as individuals, as tenants in common or joint tenants; but by the treaties of 1835 and 1846 the communal character of the property was terminated as to both Eastern and Western Cherokees, and the fund, taking the place of the realty, was invested in the various ways we have mentioned, leaving the remainder to be distributed per capita. The Western Cherokees were paid under the treaty of 1846, simply as citizens of the Cherokee Nation, entitled to receive the money, as having emigrated prior to 1835, or the descendants of such.

The Court of Claims at first decided that the decree should be in the form usually used where a suit is prosecuted by individuals for themselves and others, that is to say, that the general liability should be established, and then provision made for the individual Old Settlers, or Western Cherokees, to come in and establish their right to share in the fund.

It was said in Smith v. Swormstedt, 16 How. 288, 302, 303, that "the rule is well established that where the parties interested are numerous and the suit is for an object common to them all, some of the body may maintain a bill on behalf of themselves and all the others"; but that "in all cases where exceptions to the general rule are allowed, and a few are permitted to sue, or defend, on behalf of the many, by representation, care must be taken that persons are brought on the record fairly representing the interest or right involved, so that it may be fully and honestly tried." And, notwithstanding the suggestion that these so-called commissioners do not bring themselves as strictly within the rule upon this subject as they should, yet we think that they do so far represent the interests or rights involved that the case may be allowed to proceed to judgment.

The Court of Claims, after delivering its opinion, suspended the entry of the decree which it had indicated its intention to render, and after argument had upon the question, modified that opinion, and held that the fifth article of the treaty of 1846 applied as to the distribution, and entered a decree accordingly. The court was quite right in holding that the amount found due should not be decreed to be received and disbursed by the three petitioners as a commission, and that it was not necessary that the decree should require the beneficiaries to come into that tribunal and prove up against the fund. The fifth article of the treaty provided that the per capita allowance to be given to the Western Cherokees should be held in trust by the United States, and "paid out to each individual belonging to that party, or head of family, or his legal representatives," and "be paid directly to the persons entitled to it, or to his heirs or legal representatives," and that the persons entitled to it should be ascertained by a committee of five appointed by the President of the United States from the Western Cherokees, and an agent of the United States. The court was of opinion that the rule thus prescribed should be followed as to this balance of the amount intended for per capita distribution, and it was in accordance with this view that the decree was finally entered.

We approve of this disposition of the matter as just and appropriate under the circumstances, and a competent exercise of judicial power. The court decides and pronounces the decree to be carried into effect as between the persons and parties who have brought the case before it for decision, and none the less so, because it leaves the mere matter of distribution to be conducted in the manner and through the agencies pointed out in the treaty.

The result is that we concur substantially in the conclusions reached by the Court of Claims, whose laborious and painstaking examination of the case has been of great assistance in the investigation we have bestowed upon it; and in respect of the difference in the amount found, we direct the decree to be modified so as to provide for the recovery of the defendants of the sum of two hundred and twelve thousand three hundred and seventy-six dollars and ninety-four cents ($212,376.94) instead of the sum of two hundred and twenty-four thousand nine hundred and seventy-two dollars and sixty-eight cents, ($224,972.68,) in full 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 at the rate of five per centum per annum from the 12th day of June, 1838, up to and until the modification of the decree, in addition to the sum of four thousand one hundred and seventy-nine dollars and twenty-six cents, ($4,179.26); and as so modified to be

Affirmed.

MR. JUSTICE JACKSON did not sit in this case or take any part in its decision.