This Court is not called upon to consider errors assigned by an
appellee who has taken no appeal from the judgment below.
The findings of the court below touching the expenditures by the
United States to support and keep a blacksmith for the use of the
Indians are too indefinite to allow them to be made the subject of
a setoff.
The United States having undertaken by Article VII of the Treaty
of August 8, 1831, with the Shawnees to "expose to public sale to
the highest bidder" the lands ceded to them by the Shawnees, and
having disposed of a large part of the same at private sale, were
thereby guilty of a violation of trust, and as all public lands of
the United States were, by the Act of April 24, 1820, c. 51, 3
Stat. 566, made open to entry and sale at $1.25 an acre, the
measure of damages for the violation is the difference between the
amounts realized, and the statutory price.
Under the provisions of said treaty, the Shawnees were entitled
to interest on such damages as an annuity.
The United States is not responsible to the Shawnees for moneys
paid under a treaty to guardians of orphans of the tribe, appointed
by the tribal council, who had embezzled the money when so
paid.
Whether the Shawnees are entitled to recover in these
proceedings money embezzled by an Indian superintendent,
quaere.
There was no error in the action of the court below ordering a
percentage allowance to counsel.
Page 155 U. S. 181
This was a claim by the Shawnee tribe of Indians under a special
act of Congress passed October 1, 1890, c. 1249, 26 Stat. 636,
conferring jurisdiction upon the Court of Claims, subject to an
appeal to this Court, to hear and determine the just rights, in law
or in equity, of the Shawnee and Delaware Indians under certain
treaties with the government.
The fourth section of the act authorizes the Shawnees to bring
suit to recover
"any amount of money that in law or equity is due from the
United States to said tribes in reimbursement of their tribal fund
for money wrongfully diverted therefrom."
The original petition in the case was filed December 10, 1890.
An amended petition was filed, by leave of the court, February 3,
1891, to which the defendants filed a traverse.
On July 6, 1892, an amended and supplemental act of Congress was
passed, c. 151, 27 Stat. 86, authorizing the Shawnees to present to
the Court of Claims
"all their claims against the United States and the Cherokee
Nation, or against either or both of them, of every description
whatsoever, arising out of treaty relations with the United States,
rights growing out of such treaties, and from contracts, expressed
or implied, under such treaties, made and entered into by and
between the said Shawnees and Cherokees, and between them of either
of them, and the United States."
Subsequently, on July 21, 1892, the appellee filed a second
amended petition in the Court of Claims introducing claims not
embraced in the former petition.
The United States interposed a general denial of the allegations
of the petition and also made a counterclaim of $12,182.03, alleged
to have been overpaid, under a treaty of 1825.
The case having been heard by the Court of Claims, the court,
upon the evidence, made the following findings of fact:
I. The following is the Spanish grant to the Shawnee Indians, to
which reference is made in the preamble of the treaty between the
United States and the Shawnees in Missouri, proclaimed December 30,
1825:
"Delawares and Shawnees, claiming a tract of country
Page 155 U. S. 182
between the River St. Coure and Cape Gira'deau, and bounded on
the east by the Mississippi and west by the White Water, District
of Cape Gira'deau, produced to the board as follows, to-wit:"
"The Baron De Carondelet, knight of the faith of St. John,
colonel of the royal armies, governor intendant general, subprefect
of the provinces of Louisiana, west Florida, and inspector of their
troops, etc. Be it known by these presents that in consideration of
the good and faithful services that the said Louis Lorimer has
rendered to the state since he has been a subject of his Catholic
majesty, we allow him to settle with the Delaware and Shawnee
Indians who are under his control in such places as he may select
in the Province of Louisiana, on the right bank of the Mississippi,
from the Missouri to the Arkansas River, which may have no
governor, and both to hunt and plant thereon for the support of
their families, and no commandant, officer, or King's subject shall
have the power to oppose him in occupying the lands by him and the
said Indians sown, planted, or settled, so long as they shall think
proper to abide there, provided, in case they abandon them to move
elsewhere, they will be considered as vacant, and, as for the house
that the said Sir Louis Lorimer built at Cape Gira'deau, it shall
remain in his possession, not to be taken from him for any reason
except the sole ones of illicit commerce or corresponding with the
enemies of the state."
"Wherefore we have given these presents, signed by our hand and
countersigned by the secretary of this government, and to which we
have caused the seal of our arms to be affixed at New Orleans, on
January 4, 1793."
"Le Baron De Carondelet"
"Andres Lopez Armesto"
"By order of his lordship"
II. The Missouri band of Shawnees have received payments in
accordance with the provisions of the treaty of 1825, but the
following balance remains unpaid: $1,152.78.
III. The lands which the treaty of 1831, between the United
States and the Ohio band of Shawnees, ceded to the defendant
herein, were received and sold. Of these lands,
Page 155 U. S. 183
between December 24, 1832, and December 31, 1832, 9,841.27 acres
were sold at public sale to the highest bidder at the rate of $2.08
3/4 per acre. The total amount received for these lands is shown in
Finding VI. The rest of the land so ceded was sold at private sale
at the rate of $1.25 per acre. Some of the land sold at this rate
of $1.25 per acre had improvements upon it, but most of the land so
sold was unimproved. The lands were sold with reasonable
expedition. The last sale was June 30, 1840. The total amount of
the lands ceded was 96,051.48 acres.
The amount of land to be reserved to Francis Duquochet (article
11, treaty of 1831) was 320 acres.
The amount of land to be reserved to Joseph Parks (article 13)
was 640 acres. The amount of land, the price of which was to be
reserved to the Michigan Shawnees (article 13), was 640 acres.
IV. Whether the Shawnees, who, in 1831, resided on the River
Huron, Michigan, have expressed a desire to follow the Shawnees of
Wapaghkonnetta to their residence west of the Mississippi does not
appear; nor does it appear that they have expressed a desire not to
do so. Their wishes upon this subject are not disclosed.
V. Out of the proceeds of the land sales in Ohio, the United
States has retained (at 70 cents per acre) the amount shown in
finding 6; also, $6,994.40 the cost of the gristmill and sawmill;
also, $1,011, the cost of surveying; also, $13,000 for
improvements.
VI. The following is the account between the United States and
the Shawnee tribe under treaty of 1831:
Total amount of land ceded (acres) . . . . . . . 96,051.48
Less:
Reserved for Joseph Parks. . . . . . . . 640.00
Reserved for Francis Duchouquet. . . . . 320.00
Reserved for Hurons (the price to be
held as shown in treaty). . . . . . . 640.00
Difference between plats and abstracts . 5.43
------ 1,605.43
---------
Acres . . . . . . . . . . . . . . . . . . . . 94,446.05
Page 155 U. S. 184
Of these acres there were sold at $2.08 3/4 per acre, 9,841.27
acres, yielding $20,543.65.
There remained (acres) 84,604.78, which, at $2 per acre, would
have yielded $169,209.56; adding this to the $20,543.65 gives a
total of $189,753.21.
There has been paid to the Shawnees:
Per 5th article treaty of 1831 . . . . . . . . . . $
13,000.00
Per 4th " " " " . . . . . . . . . . 6,994.00
Per 7th " " " " (surveying). . . . . 1,011.00
Amount retained from sales, at 70 cents per acre . 66,252.63
------------
Total . . . . . . . . . . . . . . . . . . . . $ 87,257.63
============
From the amount due as shown above . . . . . . . .
$189,753.21
Subtract . . . . . . . . . . . . . . . . . . . . . 87,257.63
------------
Balance (in 1840) . . . . . . . . . . . . . . $102,495.58
============
Paid to the Shawnees (September 28, 1852) under
the 7th article of the treaty of 1831. . . . . . $ 37,180.58
============
Interest on $102,495.58 from June 30, 1840, to
June 12, 1893 at 5 percent . . . . . . . . . . . $271,357.04
Interest on $37, 180.58 from September 28, 1852,
to June 12, 1893 at 5 percent. . . . . . . . . . 75,672.80
------------
Difference. . . . . . . . . . . . . . . . . . $195,684.24
Subtract amount paid . . . . . . . . . . . . . . . 37,180.58
------------
Balance . . . . . . . . . . . . . . . . . . . $158,503.66
Add (
see supra). . . . . . . . . . . . . . . . .
102,495.58
------------
Total . . . . . . . . . . . . . . . . . . . . $260,999.24
Add amount unpaid under treaty of 1825 . . . . . . 1,152.78
------------
Total . . . . . . . . . . . . . . . . . . . . $262,152.02
VII. Difficulties arose as to the 100,000 acres which the second
article of the treaty of 1831 provided should be given the Indians,
and the United States failed to perform their stipulation in this
regard. Because of this failure, the United States paid the Ohio
Shawnees $66,246.23, and received receipts stating that the moneys
thus paid were "in full payment of all claims under that part of
the treaty of 1831 which has relation to the grant of 100,000 acres
of land in fee simple to
Page 155 U. S. 185
the Ohio Shawnees." It does not appear that the amount so paid
the Ohio Shawnees was insufficient compensation.
VIII. Owing to laches or dishonesty, certain moneys due to
orphan children under the treaty of 1854 with the Shawnees, to be
distributed under the last clause of article 8 thereof, was lost to
them. The President deemed best to pay their money over in
severalty. The Shawnee council created certain so-called
"guardians" of the orphan children, and to them the defendants paid
a portion of the orphans' money which by laches or dishonesty never
reached the orphans. Another portion of the orphans' money was
committed to a United States Indian superintendent for
distribution. He embezzled it, and this money was lost to the
orphan children.
The total amount lost to the orphan children in the manner above
set forth was $10,506.39. On this amount, the United States
recovered from the Indian superintendent's sureties $1,068.77, and
in 1884 appropriated the balance, $9,437.62, but no payment has
been made, as the Secretary of the Interior and Commissioner of
Indian Affairs deemed that the whole amount of the money should not
go to the Shawnees as a tribe, but a part at least, "should be paid
directly to the parties to whom it belongs."
IX. There was paid the Shawnees for blacksmiths, from 1825 to
1854, the sum of $17,408.73.
Upon these findings, the Court of Claims entered a decree to the
effect that there was due to the Shawnees from the United States on
June 12, 1893, the date of the decree, principal and interest, the
sum of $262,152.02, and the further sum of $10,506.39, due to
certain infant Shawnees, which was ordered to be paid to said
orphans or their personal representatives under the direction of
the Secretary of the Interior. It was further ordered that there be
paid to counsel for the Shawnees, as compensation, the sum of
$26,215, which does not exceed ten percent of the amount recovered
by said Indians, and which is to be paid out of and deducted from
the said above-mentioned sum of $262,152.02. The opinion of the
court is reported in 28 Ct.Cl. 447.
From this judgment the United States appealed to this Court.
Page 155 U. S. 186
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
As the claimant took no appeal from the judgment of the court
below, of course, we are not called upon to consider the numerous
errors assigned in his brief to its action in refusing to make
certain allowances claimed in his petition.
The Stephen
Morgan, 94 U. S. 599. We
are concerned only with the appeal of the government from the
allowances actually made, and shall limit our decision to the
errors assigned by the Attorney General in his brief.
1. Prior to December 30, 1825, a portion of the Shawnee Indians
were individually and collectively in possession of a tract of land
about twenty-five miles square near Cape Girardeau, in the State of
Missouri, under a permit from the Spanish government, granted to
them on January 4, 1793, by the Baron De Carondelet. A translated
copy of this grant constitutes the first finding of the court
below. This tract of land was acquired by the United States under
the treaty of cession with the French republic of April 30, 1803, 8
Stat. 200, commonly known as the "Louisiana Purchase." The sixth
article of this treaty obligated the United States to carry out
such treaties and articles as might have been agreed upon between
Spain and the Indian tribes until, by mutual consent of the United
States and said tribes, other suitable articles should be agreed
upon.
On December 30, 1825, a treaty was made by the Unites states
with these Indians, 7 Stat. 284, under which the Indians ceded to
the United States the lands in question, in consideration of which
the United States agreed to give to the Shawnees residing within
the State of Missouri,
"for themselves and for those of the same nation, now residing
in Ohio, who may hereafter emigrate to the west of the Mississippi,
a tract of land equal to fifty miles square, situated west of the
Missouri and within the purchase lately made
Page 155 U. S. 187
from the Osages."
The United States further agreed to make certain payments in
money to the Shawnees as an equivalent for the loss and
inconvenience which the tribe would sustain by removal, to enable
them to obtain supplies, and to satisfy certain claims made against
citizens of the United States for spoliations. It appears that the
Shawnees received payments under this account, but the second
finding of the court is that a balance remains unpaid of $1,152.78.
As this is a finding of fact upon the evidence, it is not
controverted by the government and no error is assigned to its
allowance. The claim of the appellee that interest should have been
allowed upon this residue cannot be considered, as no appeal was
taken from such refusal.
The only question connected with this branch of the case arises
from a counterclaim by the government, under the fourth article of
the treaty, by which the government undertook to support and keep a
blacksmith for the use of the Indians on the land thereby assigned
to them for the term of five years,
"or as long as the President may deem it advisable, and it is
further stipulated, that the United States shall furnish for the
use of the Shawnees the tools necessary for the blacksmith's shop
and (300) three hundred pounds of iron annually, to be furnished at
the expense of the United States."
The court finds that there was paid the Shawnees for
blacksmiths, from 1825 to 1854, the sum of $17,408.73. As there is
no finding how much of this sum was expended during the five years,
or the extended period deemed "advisable" by the President during
which the government was bound to keep up the blacksmith shop, the
finding is too indefinite to be made the subject of a setoff.
Indeed, for all that appears, the President may have deemed it
advisable to continue the shop until 1854. His discretion was
absolute as to the time the shop should be continued. We can only
say that as the shop was established and equipped
under
the treaty, it was probably continued under the discretion vested
in the President
by the treaty. It is clear that the
amount expended is not available as a setoff.
2. The second and principal assignment of error arises
Page 155 U. S. 188
from an allowance of the sum of $260,999.24, based upon a treaty
made August 8, 1831, 7 Stat. 355, with a branch of the Shawnees
residing in Ohio, under which they ceded to the United States their
lands in Ohio, the government agreeing to give in exchange certain
lands upon the western side of the Mississippi.
The seventh article of the treaty provided as follows:
"The United States will expose to public sale to the highest
bidder, in the manner of selling the public lands, the tracts of
land herein ceded by the said Shawnees. And after deducting from
the proceeds of such sale the sum of seventy cents per acre,
exclusive of the cost of surveying, the cost of the gristmill,
sawmill, and blacksmith shop and the aforesaid sum of thirteen
thousand dollars, to be advanced in lieu of improvements; it is
agreed that any balance, which may remain of the avails of the
lands, after sale as aforesaid shall constitute a fund for the
future necessities of said tribe, parties to this compact, on which
the United States agree to pay to the chiefs, for the use and
general benefit of their people, annually, five percentum on the
amount of said balance, as an annuity. Said fund to be continued
during the pleasure of Congress, unless the chiefs of the said
tribe, or band, by and with the consent of their people, in general
council assembled, should desire that the fund thus to be created,
should be dissolved and paid over to them, in which case the
President shall cause the same to be so paid if in his discretion
he shall believe the happiness and prosperity of said tribe would
be promoted thereby."
The court found (finding 6) the total amount ceded under this
treaty to have been 96,051.48 acres, less certain reservations
amounting to 1,605.43 acres; that of this amount there was sold at
public sale to the highest bidder between December 24 and December
31, 1832, 9,841.27 acres at the rate of $2.08 3/4 per acre, or a
total of $20,543.65.
The remainder of the land so ceded was sold at private sale at
the rate of $1.25 per acre. Some of the land sold at this rate of
$1.25 per acre had improvements upon it, but most of the land so
sold was unimproved. The lands were
Page 155 U. S. 189
sold with reasonable expedition, the last sale being June 30,
1840.
In respect to this, the government is alleged to have violated
its trust in selling the lands at private sale, the covenant of the
treaty being to expose the land to public sale, to the highest
bidder, in the manner of selling public lands. In this connection,
the court found that by the Act of May 18, 1796, c. 29, 1 Stat.
464, entitled "An act providing for the sale of the lands of the
United States, beyond the territory northwest of the River Ohio,
and above the mouth of the Kentucky River," it was provided that
the land should be surveyed and laid out in sections of 640 acres,
and, by section 4, that they
"shall be offered for sale at public vendue, under the direction
of the governor or secretary of the western territory and the
surveyor-general, . . . provided always that no part of the lands
directed by this act to be offered for sale, shall be sold for less
than two dollars per acre."
So, by an Act of May 10, 1800, amendatory of this, 2 Stat. 73,
it was further provided, sec. 5, "that no lands shall be sold by
virtue of this act at either public or private sale for less than
two dollars per acre."
Construing the treaty of 1831 in connection with these acts, the
court was of opinion that
"the United States failed in their duty when they sold any of
the these lands otherwise than
at public sale, to the highest
bidder, in the manner of selling the public land, and, as
trustees of these Indians and their guardians, are liable to them
for any loss which the Shawnees may have thus sustained,"
and that the best evidence of the amount these lands would have
produced if sold according to the treaty stipulations was contained
in the statutes above cited, and was therefore fixed by the court
at $2 per acre.
Assuming that the court was correct in its legal proposition
that the government was bound to expose all these lands to public
sale to the highest bidder, we think it was mistaken in its
inference that the land would have brought $2 per acre if so sold.
The attention of the court does not seem to have been called to the
Act of April 24, 1820, c. 51, 3 Stat. 566, entitled
Page 155 U. S. 190
"An act making further provisions for the sale of public lands,"
the third section of which provided
"that from and after the first day of July next, the price at
which the public lands shall be offered for sale, shall be one
dollar and twenty-five cents an acre, . . . and all the public
lands which shall have been offered at public sale before the first
day of July next, and which shall then remain unsold, as well as
the lands which shall thereafter be offered at public sale,
according to law, and remain unsold at the close of said public
sales, shall be subject to be sold at private sale, by entry at the
land office at one dollar and twenty-five cents an acre, to be paid
at the time of making such entry as aforesaid."
Now as this act was in existence at the time of the treaty of
1831, and was the latest act upon the subject, the reasoning of the
court would indicate that the value of the land should have been
fixed at $1.25 per acre instead of $2. By the express terms of the
Act of July 14, 1832, c. 240, 4 Stat. 601, the lands covered by
this treaty were
"attached to, and made to form a part of, the land districts in
which the same are respectively situated, and liable to be sold as
other public lands in the State of Ohio."
In view of the act of 1820, above cited, permitting lands which
remained unsold after having been offered at public sale to be sold
at private sale at $1.25 per acre, and the Act of July 14, 1832,
attaching these lands to their several land districts and
permitting them to be sold as other public lands in the State of
Ohio, it may admit of some doubt whether the government can be held
by this Court to have been guilty of a violation of its trust in
selling these lands at private sale. If it had appeared that the
government had "exposed" these lands to public sale to the highest
bidder, and, failing to find a bidder above the statutory price of
$1.25 per acre, had then sold them at private sale at that price,
its obligation would have been completely discharged; but, as there
is no evidence that they were ever exposed to public sale, we
incline to the view expressed by the court below -- that as between
the government and the Indians, there was a failure on the part of
the former to observe the stipulation of the treaty, and a
violation
Page 155 U. S. 191
of its trust. The obligation being expressed to expose them to
public sale, it was incumbent upon the government to show either
that it had done so and failed to find a bidder or for some other
reason it had been released from the provisions of the treaty. The
privilege of selling the lands "in the manner of selling the public
lands" does not nullify the obligation to expose them at public
sale, which still remained, but it required them to be sold subject
to the conditions and in the manner prescribed by the act of
1820.
The difficulty, however, is in estimating the damages the
Shawnees suffered by its failure of duty in that particular. We
cannot assume that because a portion of the tract sold at auction
brought $2.08 3/4 per acre, the whole tract might have been sold at
that price, at least in the absence of evidence that all was of
equal value, since the part so sold may have been the most valuable
of the entire tract. We have shown that the estimate of $2 per acre
was based upon a statute fixing the price of public lands which had
been repealed. In the absence of any proof of the actual value of
these lands at this time, there would seem to be no method of
estimation except by taking the price at which public lands were
subject to be sold at private sale, namely, $1.25 per acre. Not
only is there some presumption that the government would not sell
them for less than they were worth, but the very fact that at that
time all public lands were subject to entry at $1.25 per acre would
render it impossible to sell them at a greater price unless, by
reason of their peculiar location, abundant timber, or
extraordinary fertility, they were exceptionally valuable. We are
not informed why the land sold at auction brought the price it did;
but if the other lands were of like value, there is every reason to
believe that the government, charged as it was with a trust to
dispose of them at public sale for the best price that could be
obtained, would have exposed them to sale in the same manner. The
inference is that it was deemed for the best interests of the
beneficiary to dispose of them at private sale for the statutory
price, and while this may not excuse the government for a failure
to comply with its obligation to sell them at auction, it tends
Page 155 U. S. 192
strongly to show that the Indians in reality suffered no damage
by such action.
It results from this that from the total of $189,753.21, given
as the yield of this tract there must be deducted 75 cents per acre
upon 84,604.78 acres, or $63,453.58, leaving $126,299.63.
Subtracting from this the amount paid to the Shawnees, as found in
the sixth finding, $87,257.63, leaves $39,042 as the balance due in
1840.
3. Are the Indians entitled to interest upon this amount? By
Rev.Stat. § 1091:
"No interest shall be allowed upon any claim up to the time of
the rendition of judgment thereon by the Court of Claims unless
upon a contract expressly stipulating for the payment of
interest."
The real question here is whether there was a contract expressly
stipulating for the payment of interest, or is this a mere claim
for unliquidated damages?
By the seventh article of the treaty, it was agreed that the
proceeds of the lands, after making the several deductions,
"should constitute a fund for the future necessities of said
tribe, parties to this compact, on which the United States agree to
pay to the chiefs, for the use and general benefit of their people,
annually, five percentum on the amount of said balance, as an
annuity. Said fund to be continued during the pleasure of Congress,
unless the chiefs of the said tribes or band, by and with the
consent of their people, in general council assembled, should
desire that the fund thus to be created, should be dissolved and
paid over to them."
While this is not literally an agreement to pay interest, it has
substantially that effect. It is true it is called an "annuity,"
but the amount of the annuity is measured by the interest paid upon
funds held in trust by the United States (Rev.Stat. § 3659),
upon investments for Indians (§ 2096), as well as by the
interest paid upon an affirmance by this Court of judgments of the
Court of Claims (§ 1090). A case somewhat analogous is that of
United States v. McKee, 91 U. S. 442, which
was claim of the heirs and legal representatives of one Vigo, on
account of supplies furnished in 1778 to troops acting under a
commission from the State of Virginia. As
Page 155 U. S. 193
the act under which the Court of Claims took jurisdiction of the
case directed it to be governed by the rules and regulations
theretofore adopted by the United States in the settlement of like
cases, and as the case was similar to those in which interest had
been allowed by the act of 1790, under which act the claim would
have been made but for the statutes of limitation, the interest was
allowed, though it was not claimed that there was literally a
contract expressly stipulating for the payment of interest.
While the treaty bound the government to pay a five percent
annuity until the dissolution of the fund, which dissolution took
place September 28, 1852, when the sum of $37,180.58 -- the amount
of the fund resulting from actual sales -- was paid over to the
chiefs of the tribe, this dissolution terminated the stipulation
for the annuity only
pro tanto. If the government had
originally accounted for the whole amount for which the court below
held it to be liable, it would have paid five percent upon this
amount until the whole fund was paid over. The fund as to this
amount being not yet distributed, the obligation to pay the five
percent annuity continues until the money is paid over. Upon the
whole, we think the court did not err in allowing interest.
4. An allowance of $10,506.39, based upon the eighth article of
the finding, arose from a failure of certain orphan children to
receive the annuity stipulated to be paid them by a Treaty of May
10, 1854, 10 Stat. 1053. By this treaty, the Shawnees ceded their
lands to the United States, and as part consideration therefor
received 200,000 acres in the State of Kansas, the government
further agreeing to pay the sum of $829,000 in certain
installments. The eighth article of the treaty provided that
"such of the Shawnees as are competent to manage their affairs
shall receive their portions of the aforesaid annual installments
in money. But the portions of such as shall be found incompetent to
manage their affairs, whether from drunkenness, depravity, or other
cause, shall be disposed of by the President in that manner deemed
by him best calculated to promote their interests, and the comfort
of their families -- the Shawnee council being first consulted
with
Page 155 U. S. 194
respect to such persons whom it is expected they will designate
to their agent. The portions of orphan children shall be
appropriated by the President in the manner deemed by him best for
their interests."
Under the discretion vested in him by the last clause of the
section, the President deemed it best to pay their money over in
severalty. The Shawnee council created certain so-called
"guardians" of the orphan children, and to them the defendants paid
a portion of the orphans' money, which by laches or dishonesty
never reached the orphans. Another portion of the orphans' money
was committed to a United States Indian superintendent for
distribution. He embezzled it, and this money was lost to the
orphan children. The total amount thus lost was $10,506.39.
Conceding that the government is justly liable for such portion
of this money as was committed to the Indian superintendent for
distribution and embezzled by him, it does not follow that it is
liable for such portion as was paid over to guardians of the orphan
children created by the Shawnee council. The President was
authorized to appropriate the portions of these children in the
manner deemed best for their interests. He adjudged, probably
wisely, that it should not be paid directly to the children. To
whom should he pay it if not to their guardians -- guardians who
were created by a council of the tribe, which is now seeking to
repudiate its own act and hold the government responsible for the
misfeasances of its own agent? The finding does not show when the
money was paid, but from the fact that the obligation to pay arose
in 1854 it may safely be assumed that the payments were made before
the Act of July 5, 1862, the sixth section of which, embodied in
Rev.Stat. § 2108, prohibited money to be paid to any person
appointed by any Indian council to receive money due incompetent or
orphan Indians. There can certainly be no presumption that it was
paid in the face of an act expressly inhibiting such payment.
While there may be a moral obligation on the part of the
government to reimburse the money embezzled by the Indian
superintendent, and in fact an appropriation appears to have been
made for that purpose, Act of July 7, 1884, c. 334, 23
Page 155 U. S. 195
Stat. 247, it is by no means clear that, under the acts of 1890
and 1892, the Shawnees were authorized to recover and collect from
the government any other moneys than those which they claimed in
their tribal relation or capacity. The money in question is not due
the tribe as such, but to certain individual orphans, who claim to
have been defrauded. But whether this be so or not, there is
nothing in the record to indicate how much of this money was
embezzled by the guardians created by the Indian council and how
much by the Indian superintendent, so that there is in reality no
basis for a decree in their favor. In this particular we think
there was error in the decree of the court below. Whether, in a
suit by the individual orphans, they would be held bound by the
receipt of the money by the guardians appointed by the council of
their tribe may be a different question.
5. Exception is also taken to the decree of the court directing
a payment of ten percent of the amount recovered to the attorney
and counsel of the Shawnees as his compensation, to be deducted
from the total amount of the decree in their favor. By the third
section of the act of 1890, 26 Stat. 636, by which this suit was
first authorized, it was enacted that
"The said Shawnees, Delawares and freedmen may be represented by
attorneys and counsel. And the court is hereby authorized to decree
the amount of compensation of such attorneys and counsel fees, not
to exceed ten percentum of the amount recovered, and order the same
to be paid to the attorneys and counsel of the said Shawnees,
Delawares and freedmen."
It is true that this provision, literally interpreted, refers
only to compensation in suits authorized in the second section of
the act, to be brought against the Cherokee Nation and the United
States, to recover from the Cherokee Nation moneys unlawfully
diverted by it; but we think that, within the true intent and
spirit of the act, the fourth section, which authorizes the suit in
question against the United States to recover money wrongfully
diverted from their tribal fund, should be read in the same
connection. This view is emphasized by the fact that, by the final
clause of section 4,
"the right of appeal, jurisdiction of the court, process,
procedure, and proceedings
Page 155 U. S. 196
in the suit here provided for shall be as provided for in
sections one, two, and three of this act."
It was evidently intended by this provision that section 3
should be read into and made a part of section 4 so far as the same
could be made applicable. There was no error in authorizing a
compensation to counsel of ten percentum on the amount recovered,
and the action of the court in that particular was correct.
The judgment of the court below must therefore be
Reversed, and the case remanded with directions to recompute
the amount due to the Indians and their counsel in conformity with
this opinion, and enter a decree accordingly.
