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Total amount of land ceded (acres).. 96,051 48 ! so-called 'guardians' of the orphan children, Less:

and to them the defendants paid a portion of Reserved for Joseph Parks

$640 00

the orphans' money, which by laches or disReserved for Francis

honesty never reached the orphans. Another Duchouquet

320 00

portion of the orphans' money was committed Reserved for Hurons (the price to be held as shown

to a United States Indian superintendent for in treaty)....

640 00

distribution. He embezzled it, and this mon. Difference between plats

ey was lost to the orphan children. and abstracts.

5 43

“The total amount lost to the orphan chil1,605 43

dren in the manner above set forth was $10,Acres ..

$94,446 05 506.39. On this amount the United States * Of these acres there were sold, at $2.0834 per recovered from the Indian superintendent's were, 9,841.27 acres, yielding $20,543.65. sureties $1,068.77, and in 1884 appropriated

There remained (acres) 84,604.78, which, at $2 per acre, would have yielded $169,209.56;

the balance, $9,437.62; but no payment has adding this to the $20,543.65 gives a total of been made, as the secretary of the interior $189,753.21.

and commissioner of Indian affairs deemThere has been paid to the Shawnees:

ed that the whole amount of the money Per 5th article treaty of 1831.... $ 13,000 00 Per 4th article treaty of 1831. 6,994 00

should not go to the Shawnees as a tribe, but Per 7th article treaty of 1831

a part, at least, 'should be paid directly to (surveying)

1,011 00 the parties to whom it belongs.' Amount retained from sales, at

"(9) There was paid the Shawnees for 70 cents per acre.

66,252 63

blacksmiths, from 1825 to 1854, the sum of Total

$ 87,257 63 $17,408.73."

Upon these findings, the court of claims enFrom the amount due as shown above

$189,753 21

tered a decree to the effect that there was Subtract

87,257 63 due to the Shawnees from the United States

on June 12, 1893, the date of the decree, prinBalance (in 1840)...... $102,495 58

cipal and interest, the sum of $262,152.02, and Paid to the Shawneees (September

the further sum of $10,506.39, due to certain 28, 1852) under the 7th article of

infant Shawnees, which was ordered to be the treaty of 1831....

$ 37,180 58 | paid to said orphans or their personal repre Interest on $102,495.58 from June

sentatives under the direction of the secre 30, 1810, to June 12, 1893, at 5

tary of the interior. It was further ordered per cent...

$271,357 04 that there be paid to counsel for the ShawInterest on $37,180.58 from Sep

nees, as compensation, the sum of $26,215, tember 28, 1852, to June 12, 1893, at 5 per cent.

75,672 80

which does not exceed 10 per cent. of the

amount recovered by said Indians, and which Difference

$195,684 24 is to be paid out of and deducted from the Subtract amount paid..

37,180 58

said above-mentioned sum of $262,152.02. Balance

$158,503 66

The opinion of the court is reported in 28 Ct. Add (see supra).

102,495 58 Cl. 447.

From this judgment the United States apTotal

$260,999 24 Add amount unpaid under treaty

pealed to this court. of 1825.....

1,152 78

Asst. Atty. Gen. Dodge and Charles H. RusTotal ...

$262,152 02 / sell, for the United States. Charles Brow

nell, for appellee. "(7) Difficulties arose as to the 100,000 acres which the second article of the treaty of 1831 provided should be given the Indians, Mr. Justice BROWN, after stating the facts and the United States failed to perform their in the foregoing language, delivered the opin. stipulation in this regard. Because of this

ion of the court. failure the United States paid the Ohio As the claimant took no appeal from the Shawnees $66,216.23, and received receipts judgment of the court below, of course we stating that the moneys thus paid were “in are not called upon to consider the numerous full payment of all claims under that part of errors assigned in his brief to its action in

the treaty of 1831 which bas relation to the refusing to make certain allowances claimed grant of 100,000 acres of land in fee simple in his petition. The Stephen Morgan, 94 U.

to the Ohio Sbawnees.' It does not appear S. 599. We are concerned only with the ap that the amount so paid the Ohio Shawnees peal of the government from the allowances was insuficient compensation.

actually made, and shall limit our decision to “(8) Owing to laches or dishonesty, certain the errors assigned by the attorney general moneys due to orphan children under the in his brief. treaty of 1854 with the Shawnees, to be dis 1. Prior to December 30, 1825, a portion of tributed under the last clause of article 8 the Shawnee Indians were individually and thereof, was lost to them. The president collectively in possession of a tract of land deened best to pay their money over in sev. about 23 miles square near Cape Girardeau, eralty. The Shawnee council created certain in the state of Missouri, under a permit from

186

the Spanish government, granted to them on made the subject of a set-off. Indeed, for all January 4, 1793, by the Baron De Caronde that appears, the president may have deemlet. A translated copy of this grant consti ed it advisable to continue the shop until tutes the first finding of the court below. 1854. His discretion was absolute as to the This tract of land was acquired by the Unit time the shop should be continued. We can ed States under the treaty of cession with the only say that, as the shop was established French republic of April 30, 1803 (8 Stat. and equipped under the treaty, it was prob200), commonly known as the “Louisiana ably continued under the discretion vested Purchase.” The sixth article of this treaty in the president by the treaty. It is clear obligated the United States to carry out such that the amount expended is not available as treaties and articles as might have been a set-off. agreed upon between Spain and the Indian

2. The second and principal assignment of tribes, until, by mutual consent of the United error arises from an allowance of the sum States and said tribes, other suitable articles of $260,999.24, based upon a treaty made Aushould be agreed upon.

gust 8, 1831 (7 Stat. 355), with a branch of On December 30, 1825, a treaty was made the Shawnees residing in Ohio, under which by the United States with these Indians (7 they ceded to the United States their lands Stat 284) under which the Indians ceded to

in Ohio, the government agreeing to give in the United States the lands in question, in exchange certain lands upon the western consideration of which the United States side of the Mississippi. agreed to give to the Shawnees residing The seventh article of the treaty provided within the state of Missouri, “for themselves as follows: and for those of the same nation, now resid "The United States will expose to public ing in Ohio, who may hereafter emigrate to sale to the highest bidder, in the manner of the west of the Mississippi, a tract of land selling the public lands, the tracts of land equal to fifty miles square, situated west herein ceded by the said Shawnees. And of the Missouri, and within the purchase after deducting from the proceeds of such lately made from the Osages." The United sale the sum of seventy cents per acre, excluStates further agreed to make certain pay. si of the cost of surveying, the cost of the ments in money to the Shawnees as an equiv- gristmill, sawmill, and blacksmith shop and alent for the loss and inconvenience which the aforesaid sum of thirteen thousand dol. the tribe would sustain by removal, to en lars, to be advanced in lieu of improvements; able them to obtain supplies, and to satisfy it is agreed that any balance, which may recertain claims made against citizens of the main of the avails of the lands, after sale United States for spoliations. It appears as aforesaid, shall constitute a fund for the that the Shawnees received payments under future necessities of said tribe, parties to this account, but the second finding of the this compact, on which the United States court is that a balance remains unpaid of $1,

agree to pay to the chiefs, for the use and 152.78. As this is a finding of fact upon the general benefit of their people, annually, five evidence, it is not controverted by the gov per centum on the amount of said balance, as ernment, and no error is assigned to its al an annuity. Said fund to be continued dur. lowance. The claim of the appellee that in- | ing the pleasure of congress, unless the chiefs terest should bave been allowed upon this of the said tribe, or band, by and with the residue cannot be considered, as no appeal consent of their people, in general council was taken from such refusal.

assembled, should desire that the fund thus The only question connected with this

to be created, should be dissolved and paid branch of the case arises from a counter over to them; in which case the president claim by the government, under the fourth shall cause the same to be so paid, if in his article of the treaty, by which the govern discretion, he shall believe the happiness and ment undertook to support and keep a black- prosperity of said tribe would be promoted smith for the use of the Indians on the land thereby.” thereby assigned to them for the term of five The court found (finding 6) the total amount years, “or as long as the president may deem ceded under this treaty to have been 96,051.48 it advisable; and it is further stipulated, that acres, less certain reservations amounting the United States shall furnish for the use to 1,605.43 acres; that of this amount there of the Shawnees, the tools necessary for the was sold at public sale to the highest bidder blacksmith's shop and (300) three hundred between December 24 and December 31, 1832, pounds of iron annually, to be furnished at 9,811.27 acres at the rate of $2.0834 per acre, the expense of the United States." The court or a total of $20,543.65. finds that there was paid the Shawnees for The remainder of the land so ceded was blacksmiths, from 1825 to 1834, the sum of sold at private sale at the rate of $1.25 per $17,408.73. As there is no finding how much

Some of the land sold at this rate of this sum was expended during the five of $1.25 per acre had improvements upon it, years, or the extended period deemed “ad but most of the land so sold was unimproved. visable" by the president during which the The lands were sold with reasonable expedi. government was bound to keep up the black tion, the last sale being June 30, 1810. smith shop, the finding is too indefinite to be In respect to this, the government is al.

acre,

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leged to have violated its trust in selling the upon the subject, the reasoning of the court
lands at private sale, the covenant of the would indicate that the value of the land
treaty being to expose the land to public should have been fixed at $1.25 per acre in-
sale, to the highest bidder, in the manner of stead of $2. By the express terms of the act
selling public lands. In this connection the of July 14, 1832 (4 Stat. 601), the lands cov-
court found that by the act of May 18, 1796 ered by this treaty were "attached to, and
(1 Stat. 464), entitled “An act providing for made to form a part of, the land districts
the sale of the lands of the United States, in which the same are respectively situated,
beyond the territory northwest of the river and liable to be sold as other public lands
Ohio, and above the mouth of the Kentucky in the state of Ohio."
river," it was provided that the land should In view of the act of 1820, above cited,
be surveyed and laid out in sections of 610 permitting lands which remained unsold after
acres, and, by section 4, that they “shall be having been offered at public sale, to be sold
offered for sale at public vendue, under the at private sale at $1.25 per acre, and the act
direction of the governor or secretary of the of July 14, 1832, attaching these lands to
western territory and the surveyor-general, their several land districts, and permitting

* provided always, that no part of the them to be sold as other public lands in the lands directed by this act to be offered for state of Ohio, it may admit of some doubt sale, shall be sold for less than two dollars whether the government can be held by this per acre." So, by an act of May 10, 1800, court to have been guilty of a violation of amendatory of this (2 Stat. 73), it was fur its trust in selling these lands at private ther provided (section 5) "that no lands shall sale. If it bad appeared that the govern. be sold by virtue of this act, at either public ment had “exposed" these lands to public or private sale, for less than two dollars per sale to the highest bidder, and, failing to acre."

find a bidder above the statutory price of Construing the treaty of 1831 in connection $1.25 per acre, had then sold them at priwith these acts, the court was of opinion vate sale at that price, its obligation would that "the United States failed in their duty have been completely discharged; but, as when they sold any of the these lands other there is no evidence that they were ever wise than at public sale, to the highest bid exposed to public sale, we incline to the der, in the manner of selling the public land, view expressed by the court below,-that, as and, as trustees of these Indians and their between the government and the Indians, guardians, are liable to them for any loss there was a failure on the part of the for. which the Shawnees may have thus sus. mer to observe the stipulation of the treaty, tained"; and that the best evidence of the and a violation of its trust. The obligation amount these lands would have produced if being expressed to expose them to public sold according to the treaty stipulations was sale, it was incumbent upon the government contained in the statutes above cited, and to show, either that it had done so and failed was therefore fixed by the court at $2 per to find a bidder, or for some other reason it acre.

had been released from the provisions of Assuming that the court was correct in its the treaty. The privilege of selling the lands legal proposition that the government was “in the manner of selling the public lands" bound to expose all these lands to public does not nullify the obligation to expose sale to the highest bidder, we think it was them at public sale, which still remained; mistaken in its inference that the land would but it required them to be sold subject to have brought $2 per acre if so sold. The at the conditions, and in the manner, prescribed tention of the court does not seem to have by the act of 1820. been called to the act of April 24, 1820 (3 The difficulty, however, is in estimating Stat. 566), * entitled “An act making further the damages the Shawnees suffered by its provisions for the sale of public lands,” the failure of duty in that particular. We canthird section of which provided "that from not assume that, because a portion of the and after the first day of July next, the price tract sold at auction brought $2.08:44 per at which the public lands shall be offered for acre, the whole tract might have been sold sale, shall be one dollar and twenty-five at that price, at least in the absence of evi. cents an acre,

and all the public dence that all was of equal value, since the lands which shall have been offered at public part so sold may have been the most valusale before the first day of July next, and able of the entire tract. We have shown which shall then remain unsold, as well that the estimate of $2 per acre was based as the lands which shall thereafter be of upon a statute fixing the price of public fered at public sale, according to law, and lands, which bad been repealed. In the ab. remain unsold at the close of said public sence of any proof of the actual value of sales, shall be subject to be sold at private these lands at this time, there would seem sale, by entry at the land office, at one dollar to be no method of estimation except by and twenty-five cents an acre, to be paid at taking the price at which public lands were the time of making such entry as aforesaid." subject to be sold at private sale, namely, Now as this act was in existence at the time $1.25 per acre. Not only is there some preof the treaty of 1831, and was the latest act sumption that the government would not

sell them for less than they were worth, but | legal representatives of one Vigo, on arthe very fact that at that time all public count of supplies furnished in 1778 to troops lands were subject to entry at $1.25 per acre acting under a commission from the state of would render it impossible to sell them at Virginia. As the act under which the court a greater price, unless, by reason of their of claims took jurisdiction of the case dipeculiar location. abundant timber, or ex rected it to be governed by the rules and traordinary fertility, they were exceptional regulations theretofore adopted by the Urit. Ir valuable. We are not informed why the ed States in the settlement of like cases, and land sold at auction brought the price it did; as the case was similar to those in whirh but, if the other lands were of like value, interest bad been allowed by the act of there is every reason to believe that the gov 1790, under which act the claim would have ernment, charged, as it was, with a trust been made but for the statutes of limitation, to dispose of them at public sale for the best the interest was allowed, though it was not price that could be obtained, would have claimed that there was literally a contract ex. exposed them to sale in the same manner. pressly stipulating for the payment of interThe inference is that it was deemed for the est. best interests of the beneficiary to dispose While the treaty bound the government to of them at private sale for the statutory pay a 5 per cent annuity until the dissolution price; and, while this may not excuse the of the fund, which dissolution took place government for a failure to comply with its September 28, 1852, when the sum of $37,obligation to sell them at auction, it tends 180.58–the amount of the fund resulting strongly to show that the Indians in reality from actual sales—was paid over to the suffered no damage by such action.

chiefs of the tribe, this dissolution terminat. It results from this that from the total of ed the stipulation for the annuity only pro $189,753.21, given as the yield of this tract, tanto. If the government had originally acthere must be deducted 75 cents per acre counted for the whole amount for which the upon 81,604.78 acres, or $63,453.58, leaving court below held it to be liable, it would $126,299.63. Subtracting from this the have paid 5 per cent upon this amount amount paid to the Shawnees, as found in until the whole fund was paid over. The the sixth finding, $87,257.63, leaves $39,042 | fund as to this amount being not yet disas the balance due in 1840.

tributed, the obligation to pay the 5 per 3. Are the Indians entitled to interest upon cent. annuity continues until the money is this amount? By Rev. St. § 1091: "No in- | paid over. Upon the whole, we think the terest shall be allowed upon any claim up court did not err in allowing interest. to the time of the rendition of judgment 4. An allowance of $10,506.39, based upthereon by the court of claims, unless upon on the eighth article of the finding, arose a contract expressly stipulating for the pay from a failure of certain orphan children to ment of interest.” The real question here receive the annuity stipulated to be paid is whether there was a contract expressly them by a treaty of May 10, 1854 (10 Stat. stipulating for the payment of interest, or is 1033). By this treaty the Shawnees ceded this a mere claim for unliquidated damages? their lands to the United States, and as part

By the seventh article of the treaty, it was consideration therefor received 200,000 acres agreed that the proceeds of the lands, after in the state of Kansas, the government furmaking the several deductions, "should con ther agreeing to pay the sum of $829,000 in stitute a fund for the future necessities of certain installments. The eighth article of said tribe, parties to this compact, on which the treaty provided that “such of the Shaw. the United States agree to pay to the chiefs, nees as are competent to manage their 29 for the use and general benefit of their peo fairs, shall receive their portions of the ple, annually, five per centum on the amount aforesaid annual installments in money. of said balance, as an annuity. Said fund But the portions of such as shall be found to be continued during the pleasure of con incompetent to manage their affairs, wheth. gress, unless the chiefs of the said tribes or er from drunkenness, depravity, or other bend, by and with the consent of their peo. cause, shall be disposed of by the president, ple, in general council assembled, should in that manner deemed by him best calcudesire that the fund thus to be created, lated to promote their interests, and the should be dissolved and paid over to them." comfort of their families—the Shawnee coun. While this is not literally an agreement to cil being first consulted with respect to such pay interest, it has substantially that effect. persons whom it is expected they will desIt is true it is called an "annuity,” but the ignate to their agent. The portions of or. amount of the annuity is measured by the in phan children shall be appropriated by the terest paid upon funds held in trust by the president in the manner deemed by him United States (Rev. St. $ 3659), upon invest best for their interests." Under the discre ments for Indians (section 2096), as well as tion vested in him by the last clause of the by the interest paid upon an affirmance by section, the president deemed it best to pay this court of judgments of the court of their money over in severalty. The Shaw. claims (section 1090). A case somewhat nee council created certain so-called "guardanalogous is that of U. S. v. McKee, 91 l. ians" of the orphan children, and to them S. 442, which was a claim of the heirs and the defendants paid a portion of the or

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phans' money, which by laches or dishon enacted that “the said Shawnees, Delawares esty never reached the orphans. Another and freedmen may be represented by attorportion of the orphans' money was commit neys and counsel. And the court is hereby ted to a United States Indian superintendent | authorized to decree the amount of compenfor distribution. He embezzled it, and this sation of such attorneys and counsel fees, not money was lost to the orphan children. The to exceed ten per centum of the amount retotal amount thus lost was $10,506.39. covered, and order the same to be paid to the

Conceding that the government is justly attorneys and counsel of the said Sbawnees, liable for such portion of this money as was

Delawares and freedmen." It is true that committed to the Indian superintendent for this provision, literally interpreted, refers distribution, and embezzled by him, it does only to compensation in suits authorized in not follow that it is liable for such portion the second secion of the act, to be brought as was paid over to guardians of the orphan against the Cherokee Nation and the United children created by the Shawnee council. States, to recover from the Cherokee Nation The president was authorized to appropriate moneys unlawfully diverted by it; but we the portions of these children in the manner think that, within the true intent and spirit deemed best for their interests. He adjudged, of the act, the fourth section, which authorprobably wisely, that it should not be paid izes the suit in question against the United directly to the children. To whom should be States to recover money wrongfully diverted pay it is not to their guardians,-guardians from their tribal fund, should be read in the who were created by a council of the tribe, same connection. This view is emphasized by which is now seeking to repudiate its own act,

the fact that, by the final clause of section. und hold the government responsible for the 4, “the right of appeal, jurisdiction of the misfeasances of its own agent? The finding court, process, procedure, and proceedings in: does not show when the money was paid; but, the suit here provided for, shall be as providfrom the fact that the obligation to pay arose

ed for in sections one, two, and three of this in 1834, it may safely be assumed that the act." It was evidently intended by this pro payments were made before the act of July vision that section 3 should be read into and 5, 1862, the sixth section of which, embodied

made a part of section 4, so far as the same in Rev. St. § 2108, prohibited money to be could be made applicable. There was no erpaid to any person appointed by any Indian ror in authorizing a compensation to counsel council to receive money due incompetent or of 10 per centum on the amount recovered, orphan Indians. There can certainly be no

and the action of the court in that particular presumption that it was paid in the face of was correct. an act expressly inhibiting such payment. The judgment of the court below must

While there may be a moral obligation on therefore be reversed, and the case remanded the part of the government to reimburse the with directions to recompute the amount due money embezzled by the Indian superintend to the Indians and their counsel in conformity ent, and in fact an appropriation appears to

with this opinion, and enter a decree accordhave been made for that purpose (23 Stat. ingly. 247), “it is by no means clear that under the acts of 1890 and 1892 the Shawnees were au

(155 U. S. 222) thorized to recover and collect from the government any other moneys than those which

LLOYD V. MATTHEWS et al. they claimed in their tribal relation or ca

(December 3, 1894.) pacity. The money in question is not due

No. 81. the tribe as such, but to certain individual

UNITED STATES SUPREME COURT-JURISDICTION orphans, who claim to have been defrauded.

APPEAL FROM STATE COURT. But, whether this be so or not, there is noth

Where, in an action in a state court, the ing in the record to indicate how much of parties plead and claim rights under statutes this money was embezzled by the guardians of a foreign state, but the defeated party does

not plead the construction given such statutes created by Indian council, and ow much

by the courts of such foreign state, or put in by the Indian superintendent, so that there is evidence the laws or the printed books of the in reality no basis for a decree in their favor. adjudged cases of such state, or prove the comIn this particular we think there was error

mon law of such state by the parol evidence of

persons learned in that law, as required by the in the decree of the court below. Whether,

law of the state where the action is tried, such in a suit by the individual orphans, they party cannot appeal from the highest court of would be held bound by the receipt of the the latter state to the supreme court of the

United States on the ground that such court money by the guardians appointed by the

did not give the full faith and credit to the council of their tribe, may be a different ques

public acts, records, and judicial proceedings of tion.

such foreign state which the constitution and 5. Exception is also taken to the decree

law of the United States require, and that, of the court directing a payment of 10 per

therefore, a federal question is presented. cent. of the amount recovered to the attor In Error to the Court of Appeals of the ney and counsel of the Shawnees as his com State of Kentucky. pensation, to be deducted from the total * Hattie A. Matthews held the demand note amount of the decree in their favor. By the of E. L. Harper for $5,000, on which the inthird section of the act of 1890 (26 Stat. 636) terest had been paid to January 1, 1882. by which this suit was first authorized, it was June 21, 1887, Harper was the owner of some

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