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 COTTE,T OIF CL_A.IDVi:S 
 
 (Decided March 20, 1905.) 
 
 ^-^...^ li^^-^ Xr 
 
 No. 23199. 
 
 THE CHEROKEE NATION v. THE UNITED STATES. 
 
 No. 23211. C ' ' 
 
 THE EASTERN CHEROKEES v. THE UNITED STATES. 
 
 No. 23212. 
 
 THE EASTERN AND EMKtRANT CHEROKEES v. THE 
 UNITED STATES. 
 
 OPINION. 
 
 NoTT, Ch. J., delivered the opinion of the court: 
 
 In December, 1891, the United States and the Cherol-cee 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 C'herokees had a grievance against the United 
 States — a grievance which had ) turned in the breasts of two genera- 
 tions, and had never been forgiven or forgotten. That grievance was 
 the treaty of 1S3.5, conunonly known as the Treaty of New Echota — 
 the corrupt method by which it had Iteen procured, the ruthless means 
 V)y which it had been executed, and the evasive way in whicli its obli- 
 gations 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 repeatrj here. ( Wrster/i CJu^rol'cesx. 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 
 neitlier the Chcu-okee people nor the Cherokee government ever 
 acknowledged it. In the words of Ross, they said in a memorial to 
 Congress I)ecember 15. 1S3T: " We complain of sending among us a 
 large arnu^d force, of tlie 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 (juestion furnishes no ground or cause. All these, how- 
 ever, sink into insignificance when compared with the one overwhelm- 
 ing calamity, present and prospective, of having the instrument of 
 December, 1S35, enforced upon us and our people." 
 
 22481—05 1 
 
 O "> -2. I I vL 
 
And in that remarkable petition submitted to Congress, bearing 
 date February 22, ls3S, sig-ned by 15,665 of the Cherokee people, the 
 whole nation reiterated. "' We do solemnly and earnestly protest against 
 that spui'ious instrument." 
 
 Hut while the Cherokee people always maintained that the treat^-of 
 New Echota was falsely executed in their name 1>3' a few unauthorized, 
 unofticial persons, corrupth' suborned by an agent of the Ignited States, 
 they nevertheless were compelled by the condition of affairs in the 
 Cherokee country and l)y the overwhelming power of the United 
 States to, in a measure, adopt it through the instrvmientalitv of the 
 Cherokee treaty of 1846 (y 8tat. L.. p. 871). Of it 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 had 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 principle 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 poition 
 continued to be held as a trust for their benetit: the remainder had 
 been paid to them per capifo. 
 
 "'If their removal had been eli'ected on the same terms as that of the 
 Western Cherokees. under the treaty of 1828 they would have received 
 land in the Indian Territorv 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 appro- 
 priated, 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 ah Initio to a quasi partnership or joint ownership, by the 
 terms of which they were to contribute the land in the Indian Terri- 
 tory and share in the proceeds of the land east of the ^lississippi. 
 
 '• By the terms of this arrangement the Eastern Cherokees consented 
 to their sharing in the purchase money so far as it was 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 riohtful proportion 
 in the fund^" ( Wt^'tcrn Chf^roktex v. United St<itrs. 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 nmiiitainod that that treaty, harsli and inexorable as it 
 was, has never been carried into etiect according- to the true import 
 and ostensible intent of its pro\'isions. 
 
 Li 18!>1 the Cherokee people and the United States were confronting 
 each other for the last time as vendors and purchasers of land. The 
 Cherokee <^)utlet was then the last remnant of territory to be ceded, 
 and in a few years the autonomic government of the nation was fore- 
 ordained 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 specitied consideration for the grant (S8.3u0,000) 
 that aU of the past treaty transactions between the United States and 
 the Cherokee Nation should l)e reo]X'ned; that theii* demands should be 
 reconsidered; that the moneys which might be equitably and justly 
 due to them should be paid, and that in the final detcrniination of 
 these matters they should have, if they desired it, access to the judicial 
 tribunals of the L'nited States. These demands were acceded to by the 
 Government of the United States, and were ratitied and approved b}" 
 Congress (27 Stat. L., p. 64o, sjlo). The}' found expression in the 
 following- formal agreement: 
 
 "The United States shall, without delav, 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 ratitied in the years 1817, 181i», 18"25, 1828, 1885-36, 
 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 l)y either party, for any alleged or declared amount 
 of money promised Init withheld by the United States from the Cher- 
 okee 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 tinally decided and certitied to 
 Congress according to law, appropriate a sufhcient sum of money to 
 pay such judgment to the Cherokee Nation, should judgment be ren- 
 dered in her favor; or, if it shall be found upon such accounting that 
 any sum of money has been so withheld, the amount shall l)e duly 
 appropriated by Congress, payal)le to the Cherokee Nation, upon the 
 order of its national council, such appropriation to be made bv Con- 
 gress, 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 
 undcn-standing or supposition as to how the United States should render 
 the account caHed for. The ri^presentatives of the United States did 
 not themselves know. This is shown incontestat)ly by the fact that 
 soon afterwards the Commissioner of Indian Affairs, in response to 
 some inquiry, reported to the Senate: 
 
 " I hav(^ the honor to say that if this section is construed to require 
 the United States to state an account of moneys stipulated to be pu^ 
 to the Cherokee Nation, under the treaties therein specitied, and n 
 
the A^arious appropriation acts passed to carry the same into effect, this 
 account could l)e prepared by this oiBce within a reasonable time — sa}', 
 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 Conoress. 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, probabh" twelve months or more to review 
 and copy the Cherokee accounts and records running back nearlv a 
 century. In order to prepare a statement of this kind it would require 
 an appropriation by Congress of the sura of at least $5,0(t() to pay for 
 the services of an expert accountant." 
 
 Congress adopted the latter alternative, and, by the act 3d March, 
 1893 (21 Stat. L., pp. 612, 643, SilO), 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 clue," etc. 
 Two accountants were selected by the Commissioner of Indian Affairs 
 (Messrs. James A. Slade and Joseph T. Bender), who, after a pro- 
 longed examination, in ISO-l handed in their account. It resulted in 
 allowing three items of trifling amount, which the United States con- 
 ceded, 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 fJune 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 an}" specific [)erson mutualh' agreed 
 upon as umpire, or by clerks or accountants or auditors or arbitra- 
 tors. All that it says is that '"the United States shall, without delay, 
 render to the Cherol-et JVatton a complete 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 they please; and the account, when ren- 
 dered, will not be conclusive or prima facie for or against the Chero- 
 ivce 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 for- 
 eign nations) transmitted it (May 21, 1894) to the Cherokee Nation. 
 The nation accepted it (December 1, 1894) and signiffed their accept- 
 ance. there])y 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. lsi>,5. 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 — ""si/ch apjn'oprlatlon to he made hj Congress If then 
 in session, and if not, tlirn at the session im m ediately fotloicing such 
 
acconnting'^ — but, on the contrurv, did nothing At the end of the 
 session, the House of Representatives, on tiie '2d of March, ISl'o, 
 called on the Attorney-General for an opinion concerning the con- 
 clusions reached by the accountants. The Att(n'ney-(Teneral made 
 his reply at the ])eginning of the next session in December following. 
 The second session, "the session immediately foHowing such account- 
 ing," passed without Congressional action of any kind. On the 2<)th 
 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 laAV. 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. tk;.) 
 
 On the trial of this case the arguments extended over a verv wide 
 range of fact and law, going ]>ack to the treaty of Ne\\' 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 contnicts courts 
 have constantly l)efore them stipulations that certain things shall l>e 
 decided l)y the architect, or by the engineer in charge, whose decision 
 shall be final. Such awards, within proper limitations, are to ))e 
 upheld. But in the agreement now t)efore 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. How they shall render it, in what form they 
 shall render it, to what extent they shall render it, is left entirely to 
 themselves. It is to be the account of the United States and not the 
 account of some person acting for l)oth parties. Before there can Ije 
 an award, having the element of finality, there nmst be something 
 mutually submitted to somebody. Such was not the case here- 
 
 Neither can the court I'egard 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 reasonal)le time, the law merchant holds that he assents to it; 
 and then, if he did not oltject when he should have objected, that he 
 will be estopped from ol)jecting. The account rendered then becomes 
 an account stattnl, from which the law will im])ly a ])romis(» 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 de)>tor 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 delator, and undtM- a specific 
 agreement which provides what shall be done with it. The (piestion 
 is not whether it was or was not an account stated, but what may be 
 the liabilities of the parties under the specitic agreement. 
 
6 
 
 But while the account was neither an award nor an account stated, 
 it must be conceded tliat the scope of the accounting- was intended to 
 be as broad as the causes of action secured by the agreement to the 
 Cherokee Nation "fJi<- riijht irifh/n tn'tJce montJiK to tnter suit against 
 the Unittd Statt'.< ill ill' Court of Claims for any aUtged &r declared 
 amount of nwnty promisi^d hut icdhfield hy the United States from the 
 Cherol'er ynti'iiK iiiidr-r any of soAd treaties or laivs. which may he 
 claimed to hi^ nniitt'-d from or improperly or unjustly or illegally 
 adjusttd in said accounting.'- That is to say. the court, or the account- 
 ants, were to go behind statutory and treaty bars and receipts in full 
 and were to consider '"any alleged or declared amount of mone}' 
 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 settle- 
 ments: or it meant nothing. For if the proposed suit of the Chero- 
 kees was to be decided strictissiini 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 maintained from the 
 , tirst and always that to make them pay for their removal from homes 
 I'j which they did not wish to leave to a country to which they did not 
 'i wish to go was a monstrous abuse of the obscure provisions of a treaty 
 ji; which they had not read, which they had not signed, and to which 
 / thev had not in fact been parties. "• Immediateh' before, and up to 
 , the time of the eviction of the Cherokees. the Government had been 
 carrving on a negotiation Avith their delegates who had submitted cer- 
 tain propositions looking toward a new treaty. On the 18th of May. 
 1S3S, 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 sul)sistence. This offer bears date only live days before the evic- 
 tion began. It was not accepted by the Cherokees. but seems to have 
 been tacitly acquiesced in. they removing peaceably if not content- 
 edly, and su1)sequently claiming that the cost of removal and subsist- 
 ence should not be borne bv themselves." (Wcsftrn Cht-rokees v. 
 Cnit'^d States. 27 C. Cls. R..l."44.) Yet the court was obliged in that 
 case to hold, according to the letter of the law (the treaties, the stat- 
 utes, the acquitances). that the cost of removal was to be a charge upon 
 the S5.(Mi( ».(!(;( I 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 coui't to be immediately turned out 
 under previous decisions. Interpreted in the light of the long, sore 
 controversy which had existed Ijetween 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 equi- 
 ties were to be reopened and reexamined dt noro.- and that upon the 
 faith of that beli'^f they made a cession of the Outlet. 
 
 In the opinion of the court this case is simply one to recover pur- 
 chase money upon a contract of sale. Ordinarily, in such a case, the 
 cession would not be made, the deed would not he delivered until the 
 purchase money is paid or secured or. at least, the amount be ascer- 
 tained and liquidated. In this case both parties wanted to expedite 
 the transaction. It w;is important for the United States that the ces- 
 
sion of the territory should be made immediateh'; it was desirable for 
 the Cherokee Nation that the purchase money should be ])aid soon. 
 But, nevertheless, the Cherokee Nation had the right to innuediate 
 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 innuediate payment, as near as 
 might be, of the whole consideration to be given for the cession of the 
 Outlet. When the cession was m-ade the purchase money was due; 
 the only thing remaining, which was the object of the accounting, was 
 to ascertain the exact amount. Tliis is not the case of a part}' prose- 
 cuting an unliquidated debt, l)ut a case of sale and delivery and non- 
 payment 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 nearly innnediately as was 
 possible. The United States were to render their account ''without 
 delav;'' if the Cherokee Nation ^accepted it, the amount was to be 
 appropriated by Congress; such " appropriation was to l>e made ])y 
 Congress, iftlicn !n xe.s.s/c.'//. and if not, then at the se-'^xion uinticdlatt'ly 
 foUoii'uig such account I iKj." 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 nc'd session after sudi n/sr shall he paally decided.'^ Nothing 
 was left to the ordinary uncertainties and procrastinations of legis- 
 lation, and no agreement could have made the obligation to pav 
 promptly more imecjuivocal 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 uuply 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 Natioir. 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 l)e. 
 The accountants wei'e but the instrumentality of the United States in 
 making out an account, ^^'hen it was placed in the Interior Depart- 
 ment 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. Pie 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, 18!t-t) the "twelve months" of the agreement, within which 
 the nation uuist consider it and enter suit against the othei' party in 
 the Court of Claims, began to run: and with the nation's acceptance 
 of the account (December L. l'^'.*!), the session of Congress at which 
 an appropriation should tte made became fixed and certain. The Sec- 
 retai'y did not recall the acconnl:: the United States nt^ver ivndered 
 another; and the utmost authority which Congress could have ex(>r 
 cised. if any, was, at the same session, or certainly w ithin the i)i'e- 
 scribed "twelve months." to ha\(* directed the Secrettirv to withdraw 
 the account and notify the Cherokee Nation that anoth(U' would l)e 
 rendered. The action of the Secretary of the Interior, combined with 
 the inaction of Congress to direct iuiything to the contrary, makes this 
 provision of the agreeuKMit hnal and conclusive. The Cherokee Nation 
 has i)arted with the land, has lo--t the tim(> within whit h it might ha\e 
 
appealed to the courts, and has lost the rig-ht 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 ol)iect to 
 the account; that it was the United States, and not the Cherokee Nation, 
 to whom judicial redress was given), or it would 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 j^ears still unsettled. 
 
 The question which next arises relates to the contending parties 
 before the court — the Cherokee Nation, being the Cherokee govern- 
 ment, the Eastern Cherokees, being the communal owners. 
 
 The contracting ])arty here, being also the party who made the 
 conveyance of the Cherokee Outlet, was the Cherokee Nation; and if 
 the lands of the Cherokees were, 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 an}' 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 
 "comnumal," 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 We-'<tef?i CheroJites {-21 C Cls. R., 1). But the officers of 
 the Government, under stress of circumstances — that is to say, the 
 expectations of the Indians — have alwaj's treated Indian lands as com- 
 munal, 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 jh^r cupita to everv member of an Indian 
 connnunity, share and share alike, it was l)ecause the Indians knew 
 that their lands were communal property and that they, as communal 
 owners, were entitled to the purchase monev. The case of the West- 
 ern Cherokees {xnpra) 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 Avere 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 joint tenants. The individual Chero- 
 kee had no vested right which he could convey or devise or make the 
 subject of a suit in partition. It he withdrew from the community 
 
9 
 
 he left ill! rights behind him. uiul if a .stranger was admitted he 
 acquired a right ))y virtue of his achnission alone. The property was 
 communal — a property wherein every person, not as an individual, 
 but as a member of the oonmiunity, held an equal, indistinguishal)le, 
 indivisable rio-lit of user, and notliing more." iW>.'<t'r// C7n /-n/.-rrs y. 
 United State.s^'ll C. Cls. R., 1. 53.) 
 
 The present case is also complicated by the fact that a considerable 
 portion of these communal owners tire neither citizens of the Cherokee 
 Nation nor suV)ject to its jurisdiction nor dwellers within its territory, 
 but are and always have l)een residents of territory east of the Missis- 
 sippi, owing- allegiance now exclusivel}" to the Unitetl States. It i.s 
 also complicated by the fact that the account rendered by the I'nited 
 States to the Cherokee Nation is made up of four distinct and essen- 
 tially ditierent items: One. the chief one, is for money erroneously „, 
 charged to the Cherolvces instead of being divided ^>r/wv7>/V'/ among-/.'/ 
 them; another is for money ^\■llicll should have been atlded to they' 
 principal of the school fund, a fund which is held bv tlie I'nited States 
 in trust; a third is for money inq)roperly charged to the Cherokee 
 national fund, likewise held in trust by the Cnited States. Only one 
 appears to be money properly due to the Cherokee Nation as a gov- 
 ernment, and that for the inconsiderable amount of §432.28. The 
 case is further complicated l)y 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 ^larch. IIMH'). 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. 19t»2 (82 Stat. L., 
 p. 716. S68), under which it was 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 l)y proper 
 orders and process to make parties to an}' such suit <ill jurxonx ivJiose ( 
 presence in tlie lifigatiou it .'mii/ d, nn lu^crssari/ or projier to the tinal , 
 determination of the matter in controversv."' The supplemental act,' 
 8d March, 1!)(I8 (32 Stat. L.. p. '.♦;)()), expressly authorized "the. 
 Eastern Cherokees. so called, inckiding those in the Cherokee Nation', 
 and those wdio remained east of the Mississi})pi Kiver." to come in and 
 prosecute their claims, with po\v(M' to the court "also to determine as 
 between the ditferent claimants, to whom the judgment so rendered 
 equitably belongs." The case, then, being that of many per.sons 
 severally interested in a conunoii fund, is one of which ecpiity takes 
 jurisdiction; and the several >uits merged by interpleader into one 
 have l)ecome a suit in ecjuity. 
 
 While the Cnited States iia\«' always, or nearly always, treated the 
 members of an Indian tribe as connnunal owners, they have never 
 re(iuired thtit all the coinmunal owners shall join in th(^ conveyance or 
 cession of th(» land. From the necessities of the case the negotiations 
 hav(^ been with re])resentatives of the owners. The chiefs and head- 
 men have ordinarily l)eeii the ])crsons who carried on the negotiations 
 and who signed the treaty. lUit they have not formed a body ))olitic 
 or a body corporate; and they have not assumed to hold the title or be 
 entitled to the purchase nionew They have sinii)ly acted as represiMit- 
 atives of the owners, luaking the cession on their behalf but allowing 
 them to receive the consideialion i» r cdjiifn. In the pi-esent case the 
 
 L'24S1— 05 2 
 
10 
 
 Cherokee Nation takes the place, so far as comniunal ownership is 
 involved, of the chiefs and headmen of the uncivilized tribes. This, 
 too, is consonant with the usage of nations. The claims of individuals 
 against a foreign power are always presented, not by them individually, 
 but b}" their Government. The claims are pressed as international, 
 but the money received is received in trust, to be paid over to the per- 
 sons entitled to it. 
 
 As to those Cherokees who remained in Georgia and North Caro- 
 lina, in Alabama and Tennessee, they owe no allegiance to the Cher- 
 okee Nation and the nation owes no political protection to them. But 
 the}", as conmiunal owners of the lands east of the Mississippi, at the 
 time of the treaty of 1835. were equallv interested, with the conuiiunal 
 owners who were carried to the west, in the ^55,000.000 fund which 
 was the consideration of the cession, so far as it was to be distributed 
 2Jer 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 woven with the 
 rights and equities of the Cherokees. who were citizens of the nation; 
 and the nation properly made no distinciion when parting with the 
 Outlet, but demanded justice, from the Cherokee point of view, for 
 all Cherokees who had been wronged b}' the nonfultillment of the 
 treaty of New Echota. As to these Eastern nonresident Cherokee 
 aliens the nation acted simply as an attornev collecting a debt. In its 
 hands the money's would be an implied trust for the benetit 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 equit}' against her, to 
 the same extent as individual persons are liable to each other, and may 
 be sued bv any citizen having a cause of action." (Code ISTI:. p. 21:0, 
 
 But its judiciary has ceased to exist, and. as has before been said. 
 the nation itself as a government will cease to exist. '"The constitu- 
 tion of the Cherokees was a 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 anarch}* 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 1S46 (27 
 C. Cls. K., 1); yet for more than half a century it has met the require- 
 ments 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 
 
11 
 
 the few great works of intelligent statesmanship which outlive their 
 own time and continue through succeeding genei'ations 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 al)le. with entire confidence in the clearness and 
 wisdom of its provisions, to administer it for the protection of Chero- 
 kee citizens and tlie maintenance of their personal and political rights." 
 {Journeyeal'e v. Cht^rol'te Xatio)i, 2S C Cls. K., 2S1. 317.) 
 
 Since those words were written a hopeless development has taken 
 place in the ati'airs of this people. It has been with them as it has 
 been with other nations — as it has l)een with families and individuals — 
 to rise in the times of their tribulation, but to sink under the enervat- 
 ing 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 in the list of post-offices, 
 and which is known only from what transpired there as 'Aquohee 
 camp,' the}^ were able to declare through the hand of their great 
 statesman and leader, Koss, that — 
 
 "■ Whereas the Cherokee peo})le have existed as a distinct national 
 connnunity in the possession and exercise of the appropriate and essen- 
 tial attributes of sovereignty for a period extending- into antic] uity 
 beyond the dates and record and memory of man: 
 
 '"And. whereas these attributes, with the rights and franchises 
 which they involve, have never been relincjuished 1)v the Cherokee 
 people, but are now in full force and virtue: 
 
 '"And whereas the natural, political, and moral relations su))sisting 
 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: 
 
 '" Re><oived, thertfovk^ hy the luit'ional cominittee and romic/J and 
 people of the Cherokee Xat 'ion ^ !n (ji-neral coancil assemhl<(l. That the 
 inherent sovereignty of the Cherokee Nation, together with the con- 
 stitution, laws, and usages of the same, are. and by the authcn'ity 
 aforesaid are hereby declared to be, in full force and virtue, and shall 
 continue so to be in perpetuity, suljject to such modifications as the 
 general welfare mav render expedient." {Western t'litroJiis'S v. Un'itrd 
 States, 27 C. Cls. K., 1, 29.) 
 
 This declaration was an heroic resolve amid the most adverse cir- 
 cumstances 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 
 accom])lished where the military power of the United States and the 
 cori'upt 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 att'airs the court must regard the Cherokee 
 Nation as in a condition somewhat analogous to tliat of a trustee or 
 receiver who has become insolvent: that is to say. as a piu'son which 
 should not be intrusted with the receipt and distribution of the moneys 
 belonging to other persons. 
 
12 
 
 The pei'sons to whom (listril)iition of this fund of §1,111.-84.70 
 with accrued interest would be made if they were now living- would 
 he the eonununal owners of the Cherokee lands east of the Mississippi. 
 By the tripartite treaty of ls46 the western and the eastern Chero- 
 kees were placed on the same footing- with regard to all lands east of 
 the Mississippi and with regard to the funds derived from them. It 
 follows, necessarily, that each and all of the present communal owners, 
 whether on the east or the west of the Mississippi, and whether the 
 descendants of eastern or western Cherokees, have the same individ- 
 ual interest in the fund and will be entitled to like amount yy,?/' capita. 
 
 A decree will be entered in this case following the form of that 
 which was entered in the case of WJutmir(, ti'ustce., v. Cherol'ee JVation 
 (30 C. Cls. R., ISO). It will provide: 
 
 That the Cherokee Nation recover upon the agreement with the 
 United States concluded on the 19th December, 1S!»1, and ratified by 
 the Ignited States 3d March. 1S93 (27 Stat. L..p. 640. SIO), the amounts 
 found due in the account rendered thereunder by the United States, 
 to- wit : 
 
 The value of tliree tracts of land containing 1,700 acres, at 81.25 per 
 
 acre S2, 125. 00 
 
 Amount paid for removal of p]astern Cherokees to the Indian Ter- 
 ritory 1, 111, 284. 70 
 
 Amount received by receiver of public moneys at Independence, Kans. 432. 28 
 
 Interest on si 5,000 of Choctaw funds, applied in 1863 to relief of indi- 
 gent Cherokees 20, 406. 25 
 
 That the amount of l$ii,125, with interest thereon from February 2T, 
 1819, to date of ])avment, nevertheless be retained by the Secretary of 
 the Interior and credited by the United States to the principal of the 
 ('herokee school fund in their possession and of which they are trustees; 
 
 That the amount of S^O.-KHl.io. together with int<n"est thereon from 
 July 1, 18l»3, to date of the restoration of the fund. ])e likewise retained 
 by the Secretary of the Interior and credited to the Cherokee national 
 fimd 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 
 l)e read}' to make payments, as hereinafter provided, nevertheless be 
 paid directly to eonununal 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 b\" 
 the decree. 
 
 The decree will also provide for the pavment 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 Januaiy 
 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 disl)ursements incident to the litigation. 
 
/ / 
 
 18 
 
 "Weldox, J., coiu-urrino-: 
 
 Without going- into the merits of this controversy on the ditt'erent 
 treaties made between the parties to this proceeding, and the hiws of 
 the United States enacted from time to time attecting the liability and 
 relation of the parties. I come to consider the legal etlect of the find- 
 ing made by the agents and otiicers of the United States under the 
 agreement of December l'.». Isnl. descri])ed in the act of ^Nlarch ?> (27 
 Stat. L., p. tUO, sec. l»i). 
 
 Commencing with the year iSo."!. in which year the treaty of New 
 Echota was made with the Eastern Band of Cherokee Indians, dis- 
 putes and ditierences existed betAveen the United States and the Indi- 
 ans 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 s,()(m;>.00<> 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 SS.^oo.ooO; and. as a further consideration 
 and inducement to the Indians to enter into such an agreement, it was 
 stipulated 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 apj^ointed by authority of the national 
 council, a complete account of moneys due the Cherokee Nation under 
 any of the treaties ratitied in the yeai's ISIT. 1S1;», l,si>5. 1828. is;^>;3. 
 1835-36, 1816, l86t;. and l86s und any laws passed by the Congress of 
 the United States for the purpose of carrying said treaties or any of 
 them into etiect; 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, by eitlicu' party, for any declared or alleged amount 
 of money promised but withheld l)y the United States from the Chero- 
 kee 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 it> 
 next session after such case shall be finally decided and certified to 
 Congress, according to law. appropi'iate a sufficient sum of money to 
 pa}' such judgment to the Cherokee Nation should judgment be ren- 
 dered in her favor: or if it shull be found upon such accounting that 
 any sum of monev has l)een so withlield. the amount shall l)e duly 
 appropi'iated by Congress, payable to the Cherokee Nation, upon the 
 order of the national council, such aj^propriation to l)e made by C'on- 
 gress if then in session, and if not. then at the session immediutely 
 following such accounting." 
 
 The subject-niiitter of tluM^ousideration upon the partof tin' Indians 
 was composed of two element^: in th(^ first they were to receive the 
 sum of *r^8, 301 1,000. a part of the consideration of the conveyance, and 
 as the second eliMuent of consideration they were to receive "a com- 
 plete account of the moneys due the CherokcM' Nation" under all the 
 ti'eaties and laws which from IslT to lS(is Imd been made or enacted 
 ati'ecting the pecuniary relation- of the partie>. TIk^ account was to 
 be accepted or reject(Hi by the Indians as tJiey might delei'uiine. It 
 
14 
 
 was known to them that an alleged settlement had been made in the 
 3'ear 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 oppor- 
 tunit}'^ to be relieved from the legal effect and binding force of the 
 alleged settlement, by and through which the}' 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 agi'eement of 1891. "And upon such 
 accounting should the Cherokee Nation b}^ its national council con- 
 clude 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 consist of different elements of induce- 
 ments, 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 dis- 
 turb or eliminate one element is to destro}" the whole. The consider- 
 ation 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 considera- 
 tions 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 Cherokee Nation is an 
 award, and if not an award, an account stated. It is not necessary to 
 indulge in Ijlack-letter learning upon the legal effect or character of 
 the *' account of moneys due the Cherokee Nation." It was a state- 
 ment 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 act-ount stated, or whether it is either, is wholly immaterial 
 to the proper settlement of the issue of this proceeding, and it is profit- 
 less 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 Suprenie Court has 
 said in the case of Wo/'cr.str/' v. State of Georgia (6 Peters, 05:i): 
 
 •"The language used in treaties should never be construed to their 
 prejudice. If words l)e made use of which are susceptible of a more 
 extended meaning than the plain import as connected with the tenor 
 of the ti'eaty. they should be construed as used in the latter sense. 
 
 "How the words of the treaty were understood by this unlettered 
 people rather than in their critical meaning should form the rule of 
 
15 
 
 construction. The question niiiy be asked. Is no distinction to be 
 made l)etween a civilized and savaoe peopled Are our Indians to be 
 placed upon a footiny" with the nations of Europe with whom we have 
 made treaties^ 
 
 ''The inquiry is not what station shall be ^iven to the Indian tril>es 
 in this country, but what relation have thev sustained to us since the 
 commencement of our Governments We have made treaties with 
 them, and are those treaties to l)e disregarded on our part because 
 thev were entered into witii an uncivilized peopled Does this lessen 
 the oblioation of such treaties!' By entering- into them have we not 
 admitted the power of this people to bind themselves and impose obli- 
 gations on us '( '• 
 
 So, in 5 Wallace, 737: 
 
 '•Rules of interpretation fa\ oraljle to the Indian tribes are to be 
 adopted in construing our treaties with them. Hence a provision in 
 an Indian treaty which exempts their lands from 'lev}', sale, and for- 
 feiture' is not, in the absence of an expression so to limit it, to be 
 contined to a levy and sale under ordinary judicial proceedings only, 
 but it is to be extended to levy and sale by county officers for non- 
 payment 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, bv virtue of which this court has jurisdiction. 
 
 The matter of complying with the treaty of lSi>l was left by the 
 appropriation act (to defray the expense of furnishing a statement to 
 the Indians) to the Conunissioner of Indian Affairs under the direction 
 of the Secretary of the Interior as shown l)y the comnuuiication. 
 
 The Secretary in his comnuuiication to the Speaker of the House 
 also transmits "'a certified cojiy of the Cherokee national council accept- 
 ing such accounting." 
 
 Up to that point the executive officers of the (xovernment were pro- 
 ceeding step by step in the fullillment 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 l)ought the land of the Indians not for the 
 sum of ^S.3<)0.0(Mf. Init for that sum and other undertakings vital as 
 an inducement to the Indians in making the agreement of 18'.>1. 
 
 C'ourts can not appoition the consideration of a contract and say 
 this is material and that is innuatcn'ial: parties have the right to 
 measure the value of what they contract for. and are (Mititle(l to have 
 that recognized l)y the courts. 
 
 The Congress in ratification of the plan of settlement, as pi-o\ided in 
 the treaty of 1891. passed an act appropriating the sum of S.-).ooo for 
 the purpose of ascertaining the amount due the Cherokee Nation, and 
 in pursuance of that act the Secretary of the Interior appoint<'d .lames 
 A. Slade and Joseph T. I'x'iuh'i- to state the account then (»\i>ting 
 between the United States on one liand and the Cheroke»> Nation on 
 the other, and in pursuance of such a])pointm(Mit and u])on the fuiuhi- 
 mental authority of the agreement with the Indians ma<le an examina- 
 tion and upon the result of that examination made a report of th(> 
 indebtedness of the United States founded u])on the theory that the' 
 removal of the Indians under the vai'ious treaties was to he at the cost 
 of the United Stati's. It i-~ not pri'tended that any mistal<e \\as made 
 
16 
 
 b}' the accountants upon the legal theory which they adopted a.s the 
 basis of the liability of the defendants. 
 
 L'pon the receipt of that report the SecretaiT of the Interior trans- 
 mitted to Congress, through the Speaker of the House, the report of 
 the expert accountants in the following communication: 
 
 "Department of the Interior, 
 
 " WaHldngton^ January 7th^ 1895. 
 
 ''Sir: 1 have the honor to herewith transmit, !n compliance ivith 
 the prorwions of the third suhd! vision of article ta'o of the agreement 
 made December 19th., 189U with the Cherokee Indians, ratified b}" the 
 act of Congress approved March 3rd. 1893 (27 Stats., 643), a certified 
 copv of a compJtte account ofjnoney due the Cherol'ee Xation under anv 
 of the treaties made in the years I'SIT, 1819. 1828, 1835-6, 1846. 1866, 
 and 1868, and any laws passed by the Congress of the United States 
 for the purpose of cariying said treaties or any of them into effect, 
 ■prepared in accordance icith the provisions of said act of March 3rd, 
 1893, together Avith a certified cop}" of the Cherokee national council 
 accepting such accounting. 
 "Very respectfully. 
 
 "Hoke Smith, Secretary. 
 
 "The Speaker of the House of Representatives.'' 
 
 The account when rendered to the Cherokee Nation proved accept- 
 able to it and upon the faith of its acquiescence in the report, as shown 
 hy 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 shordd 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 cori-ect statement of the account between the parties, 
 and a formal delivery to the Cherokee Nation of a part of the consid- 
 eration on which the bargain and sale of the land were made. 
 
 The appointment of the expert accountants, the acceptance from 
 them of the result of the examination, and the transmittal of the report 
 to the Cherokee Nation was the oflicial act of the Secretary of the 
 Interior, the officer who above all others has jurisdiction of the Indi- 
 ans of the Ignited 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 Pepartment 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 qualifica- 
 tion; 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 state- 
 ment 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 i The Indians were misled by the 
 
act of the L'nited States when they assumed that the account after 
 acceptance woukl be dealt with in pursuance of the other reciuircnients 
 of the treaty. Consider the rig-hts of the litigants in the light of the 
 law which has been announced for nearly' a century by the Supreme 
 Court of the United States, the fundamental theory of which is that 
 language must never l)e construed to tiieir prejudice. ( ]\'o/-rt.^fr/- v. 
 Staff/ of (rt'orc/'Ci. stijn'd.) 
 
 The position of the defendants in refusing to abide by the result of 
 the treaty of 1S1>8. consununated as it was by the aet of the Cherokee 
 council, the executive ottieers. and the lawfully tuithorized agen.ts of 
 the United States, is not keeping faith with the wards of the nation in 
 the spirit of that " justice and reason" recognized l)y the courts when 
 dealing with the oldigation of the United States as the guardian of the 
 Indian. 
 
 In the case of the Chnrfum y. Th, FnHril Sfut.s (119 U. S. K.. p. 1) 
 it is said in the syllal)i: 
 
 ''The relation between the I'nited States and the Indian tribes. Ijeing 
 those of a superior toward an inferior who is under its care and con- 
 trol, 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 protec- 
 tion. (U/i/'fed Stctc^ V. J\jf(/a//n/, US V. S.. oT5. cited and applied.)"" 
 
 I concur in the result reached by the court as exemplitied in the 
 opinion of the Chief Justice. 
 
 Peelle, fl.. 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 tliat con- 
 clusion 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 Cheroke<'s from their eastern home to the 
 Indian Territory. 
 
 If the United States are so liabU^ th(Mi the defendants concede that 
 the account as stated l)v Slade and Bender is correct. 
 
 The first and main question to hr determined, therefore, is as to the 
 liability of the United States, and it is conceded that if such lial)ility 
 exists it arose under the treaties of is;3.5-3t) and 1846 (7 Stats. L.. 
 478. and !> Stats. L.. 871). 
 
 To interpret correctly the treaty of 1885-3H within the s})irit of the 
 decisions of the Supreme Court, it is essential to know how the Cher- 
 okee j)eople understood the terms of the ti'caty and whether they had 
 probable grounds for such undt-rstanding. 
 
 Practically from the beginning of the CTO\ernment — to make room 
 for white settlers — it was the [)olicv of the United States to encoui'age 
 the removal of the Indians domiciled in tiie Kastern States to the ter- 
 ritoiT west of the Mississip[)i Ivixm'. This policy is now manifest 
 from the various tretities entered into by the I'nited States with the 
 several tribes — now a i)art of the history of the country — by whii-h 
 the Indians ceded their hinds situate in the Eastern States to the (iov- 
 ernment and migrated to territory ]irovided for them we-t of the 
 Mississippi River. 
 
18 
 
 By the treat}' of islT with the Cherokee Indians (7 Stat. L., 156), in 
 furtherance of promises previously made by the President that those 
 Indians who desired to contiime 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 pur- 
 pose. * * * 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 Stats. L., 311) 
 Avho 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 Chero- 
 kees residing East to join their brothers in the West, agreed in addi- 
 tion to giving them certain specilied 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 arri^'al 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 Stats. L., 41-1), as provided 1)y article 5 thereof, 
 was supplementary to the treaty of 1828 and was "not to var}' the 
 rights of the parties to said treaty any further than said treaty is incon- 
 sistent with the provisions of this treaty, now concluded, or these arti- 
 cles of convention and agreement." 
 
 It was not onh' the policy of the United States, as i)efore stated, to 
 encourage the removal of the Indians westward, but it was their 
 policy to pay the expenses of their removal and their subsistence, as. 
 shown by the treaties with the Choctaws in is2i> (7 Stats. L.. 210); 
 with the Creeks in 1826 (7 Stats. L.. 2s6): with the Chickasaws in 
 1S32 (7 Stats. L., 381) : with the Seminole in ls32 (7 Stats. L.. 368), and 
 with the Delawares and the Delawares and Shawnees in 1n29 and 1832 
 (7 Stats. L.. 327 and 397). Can it be doubted that what was thus 
 done svas well known to the Cherokee Indians at the time of the treaty 
 of 1835 ( Indeed, when a draft of the latter treaty was tirst 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 'S150 to 
 each person." (H. R. Docs., vol. 7, No. 286. p. 41. 2-tth Cong., 1st sess.) 
 
 And so the eighth article of the treaty of 1835 provided: 
 
 "The United States also agree and stipulate to remove the Chero- 
 kees to their new homes and to subsist them one year after their 
 arrival there and that a sutiicient number of steamboats and baggage 
 
19 
 
 wagons .shall be furnished to remove them comt'ortal)Iy, and so as not 
 to endano-er their health, and that a physician well supplied with 
 medicines shall accompany each detachment of emio-rants removed hy 
 the (xovernment. Such persons and families as in the opinion of the 
 emigrating" agent are capable of suV)sisting and removing themselves 
 shall l)e 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 we.^t of tlie Mississippi shall be 
 entitled to allowance for removal and subsistence as above provided/' 
 
 Up to this point, therefore. 1 take it there can be no well-grounded 
 controversy either as to what the (lovernment had done respecting the 
 cost of removal and su])sistence of the various tribes of Inclians there- 
 tofore removed to the Indian Territor}', or as to what the purpose of 
 the Government was by article 8 of the treaty of 1S35 respectuig the 
 like expense of removing the Cherokees to the same Territory. 
 
 The language of the article will not bear the construction that the 
 Government was advancing money to defray such expense or that the 
 allowances therein pi'ovided to those capable of removing themselves 
 was intended as a charge against the treaty fund. 
 
 But for article 1.5 of the treaty it must ])e conceded that the (lovern- 
 ment 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. 1)ut 
 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 Ked Clay some two months before, in sul)stantially the same form 
 in which it was finallv signed at New Echota in the State of Georgia. 
 
 Now, keeping in mind what has been said respecting the understand- 
 ing of the Cherokee people as to who was to pay the cost of their 
 removal and subsistence, turn to article 1.5, which provides: 
 
 "Article 1.5. It is expressly understood and agreed l)etwcen the 
 parties to this treaty that after deducting the amount which shall he 
 actually expended for the payment for impi'ovements. ferries, claims 
 for spoliations, removnl. sul)sistence. and debts, and claims u})()n the 
 Chei'okee Nation, and for the additional (luantity of lands and goods 
 for the poorer class of Cherokeivs and the several sums to he invested 
 for the general national funds pro\ided for in the several articles of 
 this treaty, the halance. whatexer the same may be. shall lie e(|ually 
 divided l)etween all the people belonging to the Cherokee Nation east, 
 according to the census just completed: and such Cherokees as have 
 removed west since June. 1S8;>, who are entitled by the terms of their 
 enrollment and removal to all th(^ benefits resulting from the tinal treaty 
 between the United States and the Cherokees east, they shall also 
 be paid for their improvenienls. according to their ajiproved value, 
 before their remoxal. where fraud has notali'eady been ^liown in theii" 
 valuation." 
 
 Between the pr()\'ision> of that article and those of article s. I'e^pcct- 
 ing the cost of removal, there is a conHict. and if the oidinaiy rides of 
 construction applicable to contracts between indi\ iduaK are enforced. 
 then it must be conced(>d that I lie cost of removal \\a> propeily charged 
 
20 
 
 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: 
 
 "Article 2. Whereas the Cherokee people have supposed that the 
 sum of live millions of dollars, tixed b}" the Senate in their resolution 
 of — day of March, 1835, as the value of the Cherokee lands and pos- 
 sessions east of the Mississippi River, was not intended to include the 
 amount which may be required to remove them, nor the value of cer- 
 tain claims which many of their people had against citizens of the 
 United States, which suggestion has been confirmed b}- 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 sub- 
 ject should be referred to the Senate for their consideration, and if it 
 was not intended by the Senate that the above-mentioned sum of live 
 millions of dollars should iu'^'kide 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 everv 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 pro- 
 visions of the said treaty, and an}" 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 thi.s supplement shall remain part of the 
 treat V.'' 
 
 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 tixed 
 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 allow- 
 ance of $600,000 was not in the nature of a gratuity, but was in fur- 
 therance 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 maybe 
 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. 
 
21 
 
 And it was therein expressly understood that if >aid articU' shouifl he 
 approved 1>v the Senate, "then thi> >ui)})h'inent >hall remain part of 
 tlie treaty." 
 
 Inasmuch, therefore, as the basis of tliat alh)\vance was the belief of 
 the Cherokee people that the >^.5.(I()(I.(khi fixed by the Senate as the 
 value of their lands and possessions, ""was not intended to inelude the 
 amount which may be required to remove them, etc.,"* T am of the 
 opinion that the supplementary arti(des necessarily operated to modify 
 article 15 by eliminatiiiiJ- therefrom the word "removal." thereby har- 
 monizing- that article with article S. Certain it is that when the Senate 
 ratified the supplementary articles allowing the sum of >>60'»,(»00 which 
 had i)een estimated as the amount necessary for the purpose stated, the 
 practical eti'ect 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 C'JieroJice ycti'ni v. (jrory/a (5 Pet.. 1. 15) the t-ourt, 
 b}- Chief Justice Marshall, some foui' years Itefore the treaty of 1S35. 
 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, antl truly independent, found h\ our ances- 
 tors 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 whicli contains 
 a solemn guarantee of the residue, until they retain no more of their 
 formerly extensive territory than is deemed necessary to their comfort- 
 able subsistence. To preserve this remnant the present application 
 is made." 
 
 And further along in the same opinion, in referring tv. 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 as.sert a title 
 independent of their will, which nuist take eHect in point of posses- 
 sion when their right of possession ceases. Meanwhile they are in a 
 state of pupilage. Their relation to the United States resenil)les that 
 of a ward to his guardian. 
 
 "They look to our Government for protection, rely u})on its kind- 
 ness and its power, appeal to it for ridief to their wants, and address 
 the President as their great father." 
 
 In the later case of Wni;;sf,r v. (,\inyni (»; Pet.. 515. :>s-l), Mr. dus- 
 tic<' ^^'ashington, in a concurring o})inion. said: 
 
 "The language used in treaties with the Indians should nexcr be 
 construed to their prejudice. If words ]>(> made use of which are sus- 
 ceptil)le of a more extended meaning than their ])lain import, as con- 
 nected with the tenor of tlie treaty, they shoidd be considered as used 
 only in the hitter sense." 
 
 And such has been the holding of our courts in dealing with the 
 Indian ti'ibes ever since. And especially should this rnh^ ])revail 
 where the Indians sign a tivnty by mark, a-^ thev did th<> treaty of 
 
22 
 
 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 IH of that treat}- 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 bv 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 sub- 
 sistence Avas estimated by the Secretary of War. and thereafter the 
 Congress, by the act of June 12, 1838, appropriated the sum so esti- 
 mated as ""in full of all objects in third article of supplementary arti- 
 cles 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 certain!}- 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 militar}' forces 
 under General Scott, they finally yielded and an arrangement was 
 entered into whereby they w-ere nearly all removed to the Indian Ter- 
 ritor}^ by the fall of 1838. The cost of this removal and subsistence 
 largely exceeded $1,000,000, and of the sum paid bv the United States 
 $1,111,284.70 was charged to the treaty fund; hence the cause of com- 
 plaint. 
 
 Soon after their removal troul)le arose between them and the West- 
 ern 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 had done so through corrupt motives, still they sought 
 g'overnmental control of the nation, which was resisted by the West- 
 ern 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 minorit}-. The result was that trouble arose and serious conse- 
 quences 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 liody 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 River, 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, declar- 
 ing 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 
 
'23 
 
 being resorted tt) by l)oth ftietions to accomplish their ill-conceived 
 purposes, and at the same time the Eastern Cherokees were clainiino- 
 that the expense of their removal and subsistence should be l)Oi'ne l>v 
 the Ignited States. 
 
 These ditlerences. l)orderinLi' <>'> bloodsiied as between the two fac- 
 tions, and the increasino' hostility of the Eastern Cherokees toward the 
 United States for charging them with the cost of removal and.sul)sist- 
 ence, led to the treaty of ISlO (9 Stats. L., 871). The preaml)le to that 
 treaty recites that the purpose of the treaty was to etiect a tinal and 
 amicable settlement of the claims in controversy between themselves 
 and between them and the I iiited States; and to that end it was in sub- 
 stance agreed that the lands occu}iied by the Cherokee Nation should l)e 
 secured to the whole peoi)le and that the Ignited States should issue to 
 them a patent for said lands; a general amnesty was declared in respect 
 to all difficulties and disputes; that tlie Cherokees should l)e rt'imbursed 
 for all claims made against them by the United States and deducted 
 from the §5,O(»O,()O0 treaty fund; that the Western Cherokees should 
 be reimbursed for the lands ceded by them by the treaty of ls:>s. 
 out of the residuum of the sums arising out of the treaty of 188r). 
 That is to say, from the §5.B()U.00o granted by the treaty of ls;35 
 there should be deducted the investments and expenditures stipulated 
 in article 15 of ^aid treaty, and out of the residuum there should 1)e 
 paid to the Western Ciierokees a sum equal to one-third, to be dis- 
 trilnited to them p''' cu/>'ta, and that in arriving at that residuum 
 there should be charged for removal only ^i^O j>er capita and for sub- 
 sistence ^33.33 2"^>' ciipiio-, as provided by article 8 of the treats 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 y^c/' 
 capita division under the treaty of 2yth December. 1835. which said 
 settlement shall exhibit all money properly expended under said treaty, 
 and shall em]»race all sums paid for improvements, ferries, spoliations, 
 removal, and subsistence, and connuutation therefor." By article U, 
 in respect to the cost of removal and sul)sistence of the Eastern Chero- 
 kees under the treaty of 1835, it was agreed that the (piestions sjjould 
 be submitted to the Senate, by wiiose decision they agreed to abide. 
 
 In respect to the cost of sul)sistence the Senate decided that the 
 United States should bear the expense, and there was accordingly 
 restored to the treaty fund the sum of S181>,422.TG, but the provision 
 requiring the United States to pay the cost of removal was rejected 
 by the Senate. The treaty as thus modified and ratified was acquiesced 
 in by the Indians. But tlie delay of the (Tovernment 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 184H the Government had 
 agreed to make, caused dissatisfaction among the Indians, and they 
 petitioned Congress to carry out the ])rovisions of the trcnity. 
 
 The account was finally stated l)y the Connnissioner of Indian 
 Atiairs and on the l)asis of that report the Congress ])asse(l a joint res- 
 olution (9 Stat. L.. 339) authoi'izing the accounting olKcers of the 
 Treasury to make a just and fair sc^ttlement of th(^ claims of the 
 Cherokee, according to the priiici]iles of the treaty of lS4t'>. antl to 
 make their report thereof at tln^ next session of Congri^ss. which was 
 done, but no action was taken by Congress thereon. LattM'. howe\<'i'. 
 by the act of February iJT, 1851 (i» Stat. L., 573), Congress appropri- 
 ated the sum of $7:^4,H03.37, with interest thereon at the rate of 5 per 
 
24 
 
 cent per annum from June 12. 183S, until April 1, 1851. In the 
 paraoraph making- the appropriation there was added this proviso: 
 
 '^ Proi'ldtd^ h<nrerri\ That the sum now appropriated shall be in full 
 satisfaction and a final settlement of all claims and demands whatso- 
 ever of the Cherokee Nation against the United States, under any 
 ti-eaty 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 mav 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 jn'ovided^ further. That the money appropri- 
 ated 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,-J:22.76 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-^ 
 a.nd persistent controversy between the Cherokee Nation and the United 
 States was. notwithstanding said protest, supposed to be adjusted and 
 settled as provided l)v the act. 
 
 If the matter had rested there the controversy lietween them would 
 have been at an end, notwithstanding the protest of the Cherokee 
 Nation. But on December 19, 1891, an agreement was entered into 
 between the (Tovernment and the Cherokee Nation, by article 1 of 
 which the Cherokee Nation agreed to cede to the United States 
 8, 111:. 682. 9 1 acres known as the Cherokee Outlet: and by article 2 it 
 was agreed on behalf of the United States that for and in considera- 
 tion of said cession the United States would (1) remove from the lim- 
 its of the Cherokee Nation certain trespassers: (2) a certain article of 
 the treaty of 1S66 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 Chero- 
 kee Nation under anv of the treaties ratified in the vears 1817, 
 1819. 1825, 1828. 1833, 1835-36, 1816, 1866, and 1868, aiid any laws 
 passed by the Congress of the United States for the purpose of 
 carrying such treaties, or any of them, into ettect: 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 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 illeoally 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,, 
 
25 
 
 appropriate a sufficient sum of money to pay such judgment to the 
 Cherokee Nation, should judgment l)e rendered in her favor, or if it 
 shall be found upon such accounting that any sum of money has been 
 80 withheld, the amount shall be duly appropriated b\- Congress, 
 payable to the Cherokee Nation, upon the order of its national council: 
 said appropriation to l)e made l)y Congress, if then in session, and if 
 not. then at the next session immediate!}' following such accounting:" 
 (5) that certain citizens of the Cherokee Nation should have the right 
 to select lands as homesteads under certain conditions, and (0) that the 
 United States should pay for said lands the sum of $8,30(>,(»OU. 
 
 The other provisions of the treaty are not material to this case, but 
 in transmitting the treaty the conunissioners on the part of the Cnited 
 States reported to the President by way of explanation — dcnil^tiess to 
 induce the ratification of the agreem('nt--that in the reliiKpiishment of 
 the title to the land it was made a condition precedent that the Ignited 
 States should render to the Cherokee Nation a complete account of 
 moneys due to the nation under treaties as stated in the fourth sul)di- 
 vision of article 2 above quoted, and this, they sav, ''because the 
 Cherokees are compelled to accept the construction of the treaties 
 made by the P^xecutive and administrative branches of the Govern- 
 ment,'" and that ''Whatever that construction is, the Indians must 
 abide by it," there being "'no appeal except to Congress." The com- 
 missioners also reported that the Indians "'claimed that upon a just 
 accounting, upon a pi'oper construction of the treaties named, a large 
 sum of money, principal and interest, will l)e 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 shoidd 
 not be corrected." (Senate Ex. Doc. 56, 62d Cong., 1st sess.^ pp. 11 
 and 12.) 
 
 The agreement so entered into was approved by the (Jherokee 
 national council Januarv 4. 1892, and ratified bv the Congress bv the 
 act of :\Iarch 8, 1893 (27 Stats. L., tilo). By the same act the siim of 
 $5,0(10 was appropriated "'to enable the Conuuissioner of Indian Atfairs. 
 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 resiuired in the fourth 
 subdivision of article 2 of said agreement," set out al)ove. 
 
 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 In' the Cherokee Nation, and its right to sue in this court was 
 therein' waived. 
 
 The Cherokees insisted upon the ])aynient of the amount found due. 
 but a (luestion arose as towhethcn* the exi)erts had not exceeded their 
 authority in so construing the treaties as to rendei- the Unite<l States 
 liable for the cost of the removal and th(Mi stating the account acct)rd- 
 ingly. It was contended then, and is now, tluit no (juestion 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 nuich larger 
 
26 
 
 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 pav 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 tlir a^<Huin))t'ion 
 of the liability of the United States to pay the cost of removal. That 
 liability the Cong-ress desired determined, and for that purpose, in the 
 act of July 1, 1902 (32 Stat. L., 717), making provision for the allot- 
 ment of land to the Cherokee Nation and for other purposes, section 
 68 was incorporated in these words: 
 
 '' Sec. 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 treat}" stipula- 
 tions, 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 an}" claim which the United 
 States may have against said tribe, or any band thereof. The insti- 
 tution, prosecution, or defense, as the case may be, on the part of the 
 tribe or any band, of anv such suit, shall l)e through attorneys em- 
 ployed and to be compensated in the manner prescribed in sections 
 twenty-one hundred and three and twenty-one hundred and six, 
 l)oth inclusive, of the Revised Statutes of the United States, the tribe 
 acting through its principal chief in the employment of such attor- 
 neys, and the band acting through a committee recognized by the 
 Secretar}" 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 neces- 
 sary or proper to the final determination of the matter in controversv, 
 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 claim- 
 ing the several amounts stated in the account so rendered under the 
 direction of the Secretary of the Interior as an award, and asked inter- 
 est thereon at 5 per cent per annum from June 12, 1838. But 
 douV)ts were entertained as to whether under that act the Eastern 
 Cherokee could })e made parties to the action, and so by the act of 
 March 3. 1903 (32 Stat. L., 99<)), making appropriation for the Indian 
 Department, section 68 was amended as follows : 
 
 '■' Section sixty-eight of the act of Congress entitled *An act to pro- 
 vide for the allotment of lands of the Cherokee Nation, for the dis- 
 position of town sites therein, and for other purposes,' approved 
 -luly Hrst. 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 Slisssissippi 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: 
 ProvhJed, That the prosecution of such suit on the part of the Eastern 
 Cherokees shall be through attorneys employed b}- their proper 
 authorities, their compensation for expenses and services rendered in 
 
27 
 
 relation to such claim to be tixed hy the Court of Claims upon the 
 termination of such suit; and said section shall be further so construed 
 as to require that ))oth the Cherokee Mation and said P^astern Chero- 
 kees. so called, shall be made parties to any suit which may be insti- 
 tuted aoainst the United States under said section upon the claim 
 mentioned in House of liepresentati\es Elxecutive Document Num- 
 bered 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. sul)ject to the rioht of aj)peal nam<'d in 
 said section, shall be authorized to render a judgment in favor of the 
 rightful claimant, and also to determine as between the ditlerent 
 claimants, to whom the iudgment so rendered. e(iuital)ly 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." 
 
 Under the amended section the Eastern Cherokees appeared by 
 counsel and tiled their petition, claiming- that they Avere entitled to the 
 amount stated in the account so rendered under the direction of the 
 Secretar}" of the Interior for the cost of their removal to the Indian 
 Territory, with interest thereon at 5 per centum from June lii. 18oS. 
 Still another class, known as Eastern and Emigrant Chei-okees. a})peared 
 by counsel and riled tlieir petition, in which they claimed one-fourth 
 of the amount stated as the cost of removal of the P^astern Cherokees 
 to the Indian Territory. Therefore, the Cherokee Nation, as well as 
 the Eastern and all other Cherokees claiming- any interest in the sub- 
 ject-matter of the litig-ation, appear to be in court as reciuired b}- the 
 jurisdictional act. 
 
 The claim thus referred to as '•mentioned in H. R. Executive Docu- 
 ment No. SOU of the second session of the Fifty-seventh Cong-ress.** is. 
 as stated in the resolution of the House of Representatives. Decem- 
 ber 16, 11M)2. as follo\\s: "The award rendered under the Cherokee 
 agreement of December 11», isiil. ratiried by act of Congress a})p roved 
 March 8, 1893,*' and more particularly set forth in H. R. Exet'uti\e 
 Document No. 1S2. Fifty-third Congress, third session, pages 1. 3:i, 
 and the rindings of fact of the Court of Claims of April 2s. 181*2, 
 which latter are sul)stantially the rindings of fact in the present case. 
 
 The foregoing- rindings of fact were made and rei)orted to C<^ngress 
 in response to the resolution of the United State> Senate nd'cri-ing to 
 the court Senate l)ill No. MtiM. proxiding for tln^ payment of the award 
 of the Secretary of tlie Interioi- in faxor of the C'herokec^s under the 
 provisions of the act of Congress of March o. iMt.".. P)Ut in the latter 
 part of the ninth rinding, refeiriiig to the re})ort of the (•xpfrl> Shide 
 and Bender as to the amount tluirged to the treaty fund, the court 
 said: '"liut whether said sum of one million one hundred and eleven 
 thousand two hundred and cighty-t'our dollars and scxenty cents 
 (^1,111.284.70) was or was not inipi'operly charged lo the treaty fund, 
 and Avhether interest should he allowed thereon are (|Uc-tion> of law 
 upon which the court expresses no o|)inion."" 
 
 Notwithstanding- the i-cpoi-l of the (^xperts and the tindiiig> of the 
 court were before th(^ Cougre--. they did not sec lit to make the 
 appropriation to pa\' the amount fouu<l due. hut iii-tead referred the 
 claim to the court for adjudieation. 
 
28 
 
 What, then, was referred to the court for adjudication? It is con- 
 ceded 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 an}^ band thereof, arising under treaty stipula- 
 tions, ma}'^ have against the United States/' The agreement of 1891, 
 ratified by the Congress, respecting the rendition of an account, is 
 that "The United States shall, without delay, render to the Chero- 
 kee Nation * * '■ a complete account of monej's 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 liabilit}" under the several ti'eaties? 1 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 (isxinnption of the liability 
 of the United States to pay the cost of removal, stated a different 
 account and the result was the balance of ^1,111,28-1.70 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 elimi- 
 nating 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 Territorv: and such 
 was evidently the view of Congress by the act of June 12, 1838, mak- 
 ing appropi'iation to pay the sum estimated l)y the Secretary of War 
 as necessar}' to defray the expenses of removal and subsistence herein- 
 before referred to, in which, in the same paragraph, it is recited that 
 "No part of said money shall be deducted from the live million dollars 
 stipulated to be paid to said tribe by said treaty " (1835). That language 
 seems to justif}^ the views I have, expressed and may well be consid- 
 ered in its eti'ect as a legislative construction of the treatv of 1835. 
 
29 
 
 In addition thereto Conoress made appropriations to pay the entire cost 
 of subsisting the Cherokees for one \ear after their removal to the 
 Indian Territory, notwithstanding the eost thereof, as stated in article 
 15 of the treaty of 1835, was to be dediu-ted from the treaty fund the 
 same as the cost of removal. 
 
 I therefore reach the conclusion that the assuujption of the experts, 
 that the Ignited States were lial)le for the cost of removal, was well 
 founded, and that the account rendered 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 C^herokee Nation is entitled to recover under the 
 treaty of 1S19 and the ti'eaty of 18<;(1. and also certain interest under 
 the act of Congress of March 3. iSlto. the several sums set forth in the 
 report of the experts, the disposition of each of which is eorrcctly 
 dealt with in the opinion of the court. 
 
 In respect to the sum of $l,lll,i^s-l:.70 for the expense of moving 
 the Eastern Cherokees to the Indian Territory, that sum. if it had not 
 been charged to the treaty fund, would, under the })rovisions of artit-le 
 15 of the treaty of 1S35. have been "equally divided among all the 
 people t)elonging to the Cherokee Nation east, according to the census 
 just completed." while the ninth article of the treaty of l84:t>, after 
 providing for deductions for money properly expended under tlie 
 treaty of 1835, provides that: 
 
 " The balance thus found to be due shall Ije paid ovei\ y>< /wv/y^/A/. 
 in e([ual amounts, to all those individuals, heads of families, or their 
 legal representatives, entitled to receive the same under the ti'eaty of 
 ls35 and the supplement of 183<). being all those Cherokees residing 
 east at the date of said treaty and the supplement thereto."* 
 
 Hence whatever sums were properly chargeal)le under the treaty of 
 1835 were also chargeable under the ninth article of the treaty of ISKi, 
 and the balance remaining was to be eipially divided as above stated; 
 while in respect to those Cherokees I'emaining east it was expressly 
 provided by article !(• of the treaty of 18-16 — though they were not 
 parties thereto — that nothing in said treaty "shall i)e 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 ^Iississippi Kiver had. or 
 may have, under the treaty of 1^35 and the supplement thereto." 
 
 But by article 4 of the treaty of 184(). it is provided, in respect of 
 the AVestern Cherokees. that in eonsideration of the cession by them 
 of their interest in the lands east and west of the Mississippi Kiver. 
 including the S.OOO.OOo acres ceded by the treaty of 1n35 — all of 
 which was to remain the common property of the whole Chei'okee 
 people — after all the investujents and expenditures properly (•harg(>able 
 to the |5,<)00.<M»0 granted liy the ti-eaty of 1S35 had been deducted, 
 thata sum equal toone-third part of said residuum should Itedistributed 
 per cd pita to Q'A.q\\ individual of the ^Vest(M■n Cherokees. and that in 
 estimating the expense of remo\"al and subsist(Mice of the Kastern 
 Cherokees the sum stipulated as conmmtation therefor in article s of 
 the treaty of 1835 be adopted. 
 
 Inasnuu'h, therefore, as the cost of i-emo\al. >^L 1 1 Li'^l.T'i. was 
 charged to the treaty fund in I he settlement thus made, (he Cherokees. 
 l)oth east Jind west. recei\ed Ie>s than they would have reeei\-ed 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 
 
30 
 
 restored the same as they would have been at the time of the treat}" 
 of 184:<), phi.s whatever interest ma}' 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 Chero- 
 kee people as provided by the treaties of 1835 and 1846. 
 
 By Revised Statutes, section 1U91, this court is inhibited from allow- 
 ing interest on an}' claim ''unless upon a contract expressly stipulat- 
 ing 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 2<»H6, 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 tiie 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, mpra., 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 Si. 111,284. TO 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 
 1 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. 
 
 Wright, 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 $1,111,284.70 of the Slade and 
 Bender account is part consideration for the sale of the Outlet, for 
 that item had no existence until Shide 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 Ijoth, 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 monevs due the Cherokee Nation under anv of the treaties ratified 
 in the years 1817, 1819, 1825, 1828, 1833, 1835, 1836, 1846, Xm^, and 
 1868, and any laws passed by the Congress for the purpose of carrying- 
 said treaties, or any of them, into efl'ect. Upon such accounting being 
 
31 
 
 made tho Cherokeo Nation was oivcii the right within twelve months 
 to enter .suit in this court, hot for any moneys appeai'ino- to be due 
 upon the aceountiny, l)ut for any aUeovd or deehired amount of money 
 promised but withheld by the Cnited States from tlie Cherokee Nation 
 under any of the treaties or laws which mig-ht be claimed to l)e omit- 
 ted from or improperly or unjustly or illeoally adjusted in said ac- 
 counting-; or. if it should l)e found upon said accounting that any 
 sum of money had been so withheld, the amount should be duly ap})i'o- 
 priated by Congress. 
 
 What manifestly was intended by the agreement was that the l^iited 
 States was to state, tirst, the moneys due to the Cherokee Nation 
 under the treaties specitied and the laws passed to carr^' them into 
 eU'ect, and, second, the disposition in fact made of such moneys — not 
 what ought to have been done, but wliat 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 Cnited States. 
 
 This was the view taken by the Interior Department, before Congress 
 ratified the treaty, in the report of the Commissioner of Indian Ati'airs, 
 communicated to Congress, and upon which was made the appropria- 
 tion of March, 1893, of $5,000 to employ such expert persons to prop- 
 erly 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 a]ipropria- 
 tion in eti'ect stated that it seemed the intention of the parties ro the 
 agreement that what was required was a detailed statement of all the 
 moneys received and disl)ursements made l)v 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 assist- 
 ants, probal)ly twelve months or more to review and copy the Cherokee 
 accounts and records I'unning ])ack nearly a century, and to prepare a 
 statement of that kind it would require an appropriation of at least 
 $5,(Hl() 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 ai)propriation was provided for as 
 recommended, thus proving l)y the act of ratification itself that Con- 
 gress intended to require in such accounting only "* a detailetl state- 
 ment of all the moneys recei\'ed and disbursements made by the L'nited 
 States of the Cherokee funds under said treaties and acts of Congress." 
 Nothing was intimated or stated that the accountants were authori/(Mi 
 to do more than to review and copy tlie accounts and records rumiing 
 back nearly a century. No autliority \\asgi\-en to change the accounts. 
 but to copy them. 
 
 The defendants agreed to int'orm the Cherokee Nation how nuich 
 money was due to them undei- the \arious trinities and laws, and how 
 much, for what purpose, and in w liat uianntM- it liad been paid out. t!ui> 
 forming a basis for the nation to come into this court and ln'ing suit, 
 not meridy for a sum or balance appearing to be due on the face of 
 such account, but toclispute the account, allege and declare an amount 
 of money promised and withhelil. or. in other words, that the Cnited 
 States had diverted or misa|)pro])riat(Hl an alleged amount, and ui)on 
 such allegation this court was gi\-en jurisdiction to decide and gi\'e its 
 judgment. 
 
 Slade and Bender, the accountants, mistook their authority, however, 
 
32 
 
 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 the}' existed, but changed the facts and undertook to 
 state the account as they thought it ought to have been made. Their 
 account was not the account of the defendants but the account they 
 believed the defendants should have made instead. The}" substituted 
 a different account for the one they were authorized to state. 
 
 It has been argued that the Secretary of the Interior by transmitting 
 the Slade and Bender account to the Cherokee Nation thereb}' ratified 
 and gave it efi'ect. 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 oflicer was to employ such expert person 
 or persons to properlv 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 l)eyond a mere state- 
 ment of the existence of the account as in fact kept by 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 atten- 
 tion of Congress it was repudiated, and the matter was again referred 
 to this court in the form now existing, and the case is wholly unaf- 
 fected 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 
 Government, as they actually occurred at the respective times of the 
 various t ran sact i o n s . 
 
 Bv setting aside the accounting of Slade and Bender, as respects the 
 charge for removals, we would be brought to a consideration of the 
 case upon its merits, namely, the liability of the defendants for remov- 
 als 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 were, in view of the provisions of the treaty, 
 mere gratuities, and did not bind the defendants to assume further lia- 
 bilities. Congress might do so. if they saw tit, 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 plaintilis 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 an}' settlement of disputed matters 
 1)V the nuitual agreement of the parties. 
 ' Under the provisions of the act of 1851, in the year 1852 $912,026.13 
 was paid to and accepted })y the Cherokee Nation with the express 
 condition that the same should be in full satisfaction and in final settle- 
 ment of all claims and demands whatsoever under any treaty thereto- 
 fore made, with certain exceptions in which the present claim is not 
 included. This settlement was fairly entered into and acquittance 
 executed by the plaintilis in conformity to the provisions of the act 
 mentioned. No reason a]ipears against the validity and binding force 
 of the compromise, and there is none. 
 
 O