Reporter's Statement of the Case 102 C. Cls. 23. Included among the disbursements made by the United States for the benefit of the Cherokee Nation of Indians pursuant to, or from moneys credited to said nation pursuant to, the Act of June 28, 1898, 30 Stat. 495; the Act of July 1, 1902, 32 Stat. 716; the Act of April 26, 1906, 34 Stat. 137; and the Act of March 3, 1911, 36 Stat. 1070, during the period from June 28, 1898, to June 30, 1930, were the following: Pay of miscellaneous employees-- Per diem and travel allowance of Indian police on special Expenses incurred by the Cherokee Nation in opposing peti- Pay and expenses of attorneys_ Per diem and expenses of witnesses- Expenses of making per capita payments___. Expenses of making payments to destitute Cherokees_. Total____. $40, 608. 62 5, 378. 26 30, 890. 41 1, 693. 05 7,646. 31 12, 317.90 729.32 5,804. 62 1,547.53 106, 616. 02 24. Certain Acts of Congress made appropriations for the Cherokee Nation as follows: Act of September 30, 1850, 9 Stat. 544, 556: To the "old settlers," or "Western Cherokees," in full of all demands, under the provisions of the treaty of sixth August, eighteen hundred and forty-six, according to the principles established in the fourth article thereof, five hundred and thirty-two thousand eight hundred and ninety-six dollars and ninety cents; and that interest be allowed and paid upon the above sums due respectively to the Cherokees and "old settlers," in pursuance of the above-mentioned award of the Senate, under the reference contained in the said eleventh article of the treaty of sixth August, eighteen hundred and forty-six: Provided, That in no case shall any money hereby appropriated be paid to any agent of said Indians, or to any other person or persons than the Indian or Indians to whom it is due: Provided, also, That the Indians who shall receive the said money shall first respectively sign a receipt or release, acknowledging the same to be in full of all demands under the fourth article of said treaty. Act of February 27, 1851, 9 Stat. 570, 573: For expenses of an agent to collect information to enable the department to execute the law of Congress providing for the per capita payment to Cherokees, under the treaty of eighteen hundred and thirty-five, so 720 Reporter's Statement of the Case far as relates to those Indians east of the Mississippi, one thousand five hundred dollars. Unexpended balances from the above appropriations and not shown by the record to have been accounted for are as follows: In addition certain unexpended balances were returned to the United States Treasury as surplus as follows: 25. The United States has spent, gratuitously, various sums for the benefit of the Cherokee Nation. One of those sums is $142,066.22 spent for aid to common schools for the Cherokees, out of an appropriation of $400,000 made by the Act of April 22, 1932, 47 Stat. 107. This expenditure is shown at page 53 of the Report of the General Accounting Office under the Act of August 12, 1935, 49 Stat. 571, 596, filed in this court September 22, 1937. The sum of $25,240.72, a part of the $142,066.22 so gratuitously expended, is a proper offset against the claim of the plaintiff in this case. The court decided that, but for the offset of $146,066.22 to which the defendant is entitled under the Act of August 12, 1935, for funds gratuitously expended for plaintiff's benefit, the plaintiff would be entitled to recover the sum of $25,240.72; and the court further decided that in the instant cases, the defendant was entitled, out of the said $146,066.22, to an offset of $25,240.72; and the petitions were accordingly dismissed. Opinion of the Court 102 C. Cls. MADDEN, Judge, delivered the opinion of the court: These suits were brought by the Cherokee Nation of Indians pursuant to a Special Act of Congress which is quoted in finding 1. That act confers jurisdiction upon this court to adjudicate claims of the plaintiff arising out of any treaty or agreement of the plaintiff with the United States, or any act of Congress, except claims heretofore "determined and adjudicated on their merits" by this court or the Supreme Court of the United States. Thus the dealings between the Cherokees and the United States from 1791 down to date, are open for examination in these suits. The plaintiff's accountants have made an exhaustive examination of the pertinent records, and the plaintiff claims that the evidence obtained by this examination and presented to the court shows that the Government has not fulfilled its obligations to the Cherokees in many different and unrelated transactions. The Government denies that there has been any such failure, except in one instance. We consider, therefore, the several items of the plaintiff's claims. I. Our findings 2 and 3 relate to the first item of the plaintiff's claim. In 1794 the United States, in a treaty with the Cherokees, promised to furnish the Cherokees, annually, with goods to the value of $5,000. In 1798 it promised, in addition, to furnish them, annually, goods to the value of $1,000. These promises remained in force until 1835 when by another treaty, the annuities were commuted by a cash payment of $214,000. The Indians claim that the records do not show that the United States furnished goods to the extent promised in each of the years that the treaties were in force. In finding 3 we have found that, as to the amount of $12,853.29, there is not satisfactory proof of payment. The Government urges that it is not strange that records should be lacking or incomplete after a lapse of some 150 years, especially considering the somewhat primitive methods of keeping records which were current at the time in question. Because of what we say in the next paragraph, it is not necessary for us to determine which party has the burden of proof on this item of the claim. 720 Opinion of the Court In the last paragraph of finding 2 we have shown that Article VIII of the Treaty of August 6, 1846 contained this language: The United States agree to pay to the Cherokee nation the further sum of twenty thousand dollars, in lieu of all claims of the Cherokee nation, as a nation, prior to the treaty of 1835, except all lands reserved, by treaties heretofore made, for school funds. If, in fact, the United States had fallen short in its delivery of goods pursuant to the annuity provisions of the treaties of 1794 and 1798, this provision seems to have been a complete compromise and settlement of any claim for such deficiencies. No reason appears for our going behind that settlement. The plaintiff has, therefore, no right to recover on this item of its claim. II. Our findings 4, 5, 6, and 7 relate to a school fund which, under the Treaty of February 27, 1819, was to be set up for the Cherokees. In that treaty one described tract "twelve miles square" was ceded to the United States, to be sold by it and the proceeds invested in a school fund for the Cherokees. The United States caused the tract to be surveyed, and sold it in parcels, some as late as 1923. The plaintiff claims that the acreage sold and accounted for is only 89,111.94 acres, whereas a tract twelve miles square would contain 92,160 acres. Hence, the plaintiff says, the United States is short in its accounts as a trustee. But the tract was not a perfect square, since, as described in the cession, it was bounded on one side by the Tennessee River. Besides, two tributaries of that river flowed through the tract, and made unsalable some of its acreage. We do not know how many acres of salable land the tract contained, hence we do not find that the United States has accounted for less acres than were conveyed to it. The plaintiff says that three parcels of land, containing 1,742.94 acres were not sold, but should have been, and should be accounted for. We cannot determine from the evidence whether these three parcels passed into private ownership before or after the cession of the tract in 1819. If they were already in private ownership when the cession was made, the Opinion of the Court 102 C. Cls. United States, as a grantee in trust, never became liable to account for them, since they did not pass to it by the cession, as they did not belong to the grantors, the Cherokees. We conclude, therefore, that there is no proved deficiency in the number of acres accounted for by the United States in the school fund tract. The plaintiff complains that some of its school land funds were spent, during the period from 1863 to 1867, for the relief of destitute Indians of other tribes. See finding 7. During the war between the states, the Cherokee Nation entered into an alliance, "offensive and defensive" with the Confederacy, and many of its members took up arms against the United States. Many Cherokees who remained loyal to the United States were driven from their homes and became destitute. Congress in 1862, 1863, 1864 and 1865 provided for the postponement, if directed by the President, of appropriations to carry into effect the provisions of treaties with the unfriendly Indian tribes, and for the use of certain of such funds for the relief of refugee loyal Indians. In the administration of these acts the funds of one tribe were often used for the relief of refugees of other tribes. We have found that $669.05 of Cherokee funds were used for the relief of Wichita and Seminole Indians, and that $2,161.12 of Cherokee funds were used for the benefit of Indians of "tribes not designated." We have also found that the money of other tribes was used for the relief of refugee Cherokees. Under the acts referred to above the Secretary of the Interior was required to report to Congress his action in the expenditure of the funds for the relief of refugee loyal Indians, and though his reports must have shown that the funds of the tribes were used for the relief of Indians not members of the tribe whose funds were used, Congress continued to include similar provisions in the later acts, thus, apparently approving the Secretary's interpretation of the acts.1 An amendment offered in the Senate which would have limited the expenditure of the funds of a hostile tribe to the relief of the members of that tribe was not accepted. It would 'See Cong. Globe, 37th Cong., 2d sess., pp. 2093, 2098; id. 38th Cong., 1st sess., p. 2869, for manifestations in the debates of the attitude of Congress toward the hostile tribes. 'Cong. Globe, 37th Cong., 2d sess., pp. 2122-2124. |